Opposition Brief — Connecticut ex rel. Blumenthal v. Department of the Interior

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Jn the Supreme Court of the United States

STATE OF CONNECTICUT,

EX REL. RICHARD BLUMENTHAI

ATTORNEY GENERAL OF CONNECTIC!

PETITIONERS

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UNITED STATES DEPARTMENT OF THE INTERIO!

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TO THE UNITED STATES COUR

FOR THE SECOND CIR

BRIEF FOR THE UNITED STATES IN OPPOSITION

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Cré vera

ROGER MARTELLA

ELIZABETH ANN PETERSO)?

M. ALICE THURSTON

Attorney:

Departn ent of Just

Washington, D.C. 20530-0001

(202) ol 4 221

QUESTIONS PRESENTED

In 1988, Congress enacted the Connecticut Indian

Land Claims Settlement Act (Settlement Act), 25

U.S.C. 1751 et seg. The Settlement Act provided for

federal recognition of the Mashantucket Pequot Indian

Tribe (Tribe). In addition, in exchange for extinguish-

ing the Tribe’s claim of aboriginal title to hundreds of

acres of land, the Act established a fund for the pur-

chase of certain lands by the Tribe. The Act identified

boundaries within which any lands acquired by the

Tribe with those settlement funds would be held in

trust by the Secretary of the Interior and become part

of the Tribe’s reservation. The question presented is as

follows:

Whether the Settlement Act precludes the Secretary

of the Interior from exercising her general authority

pursuant to Section 5 of the Indian Reorganization Act,

25 U.S.C. 465, and regulations issued thereunder, to

take lands into trust for the benefit of the Tribe with

respect to lands that were not acquired by the Tribe

with settlement funds and that lie outside the bounda-

ries of the reservation established by the Settlement

Act.

(I)

TABLE OF CONTENTS

Page

Opinions DeE]OW .........-sessessesseesssnssnssnsensnnseneesnenncsnssnssnssncsnennennennenees 1

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ATguMent .......ccccccecesesesesesseseseessnsnessssensnssnersnsessnsnsnenesenenesessanenanenanens 11

COMUIBEOT onccacecccccncescscsscccsassessesesessscssesscsnsssncsscessnssensocsessseossossesneses 21

TABLE OF AUTHORITIES

Cases:

Alaska Pac. Fisheries v. United States, 248 U.S.

TB CAGUB) cnccenccccssecscacssssascsssecsannscsnsccsscesesencossssoosnrcssscncncssnssooes 17

Choctaw Nation v. United States, 318 U.S. 423

CIGD) cnccscnccenacccocnccsasnacssnnsscsnonsennsecsnsessosssnssnsasaasnqscscssososscconssnesns 17

Choate v. Trapp, 224 U.S. 665 (1912) ......cccscssseseeseseseeeenees 17

County of Oneida v. Oneida Indian Nation,

470 US. BBB (1GBB) nncccrcsnsccncrececesesscsscssscscscsssescscsscscesscsssssocses 16

County of Yakima v. Confederated Tribes & Bands

of the Yakima Indian Nation, 502 U.S. 251

ETI. sccxssunntcssnncssecssnonssesnnndusinestatninisedetndsessvetensesinetenesanesasaniasstes 16

Good Samaritan Hosp. v. Shalala, 508 U.S. 402

(DGB) ccnccaceccannscssssessccsccsncssonscnsssoscsnccnssesssncesensnssssscosscconssscsssoesess 19

Hagen v. Utah, 510 U.S. 399 (1994) ........eccecesesseseseseeenenens 16

McClanahan v. Arizona State Tax Comm’n,

BAT UB, BOG CAGTID cecercccrecnsncrenscrsenscesssssocssssnnsscasessesnnsensnsassens 17

Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) ..........+.. 16

Oregon Dep't of Fish & Wildlife v. Klamath Indian

Tribe, 473 U.S. 758 (1985) ........ccccccccscrcscsesscresecscrccessssessese 10, 17

Rodriguez v. United States, 480 U.S. 522 (1987) ........-0++: 12

Rust v. Sullivan, 500 U.S. 173 (1991) ......ccccccccceseseeeneeeeeees 10

Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996) ..... 19

Three Affiliated Tribes of the Fort Berthold Reservation

v. Wold E'ng’g, 467 U.S. 138 (1984) .......ccceseseseneeesenenees 16-17

Virginia Military Inst. v. United States, 508 U.S.

OG CRG aiccicosasccssinsrncscscrnsnsccnssnssessensnonsessessensnsensssssenscnsconnssents 20

Wisconsin v. City of New York, 517 U.S. 1 (1996) ........... 19

(IIT)

IV

Statutes and regulations: Page

Administrative Procedure Act, 5 U.S.C. 702 ........cccceceseees 6

Coastal Zone Management Act of 1972, 16 U.S.C.

BOGE 66 BOG. cecinsnsnsrnersecsnssssenensnsisinnnernenonnsianasnenmelaesasecssatrsanintannts 6

Connecticut Indian Land Claims Settlement Act of

ROR, BI STFC. TTR OE IG sseccccsstesennsccnsarsnninsneseniansaneninnssnse 2

Se a UD seta nip hiesciesntesketasenieclniactincinbinsdaiemcontenaani 16

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BE ES ia: TD iscdaesissicessccsineenncguinnidosnetalaitcsntiananeinciiaiatiions 2,13

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I Tic: TUE anisanicis bnsiniteadsisainsninninninamsnnvintaniodamannntios 2,3, 11, 12

BE TE TR FOGG vicseiiieeniccsinnnetinsenianninianenn 3, 8, 11, 12, 13, 14

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Oe SE TD etcicneccnnteinsnssncitsctantasinsnignenssiniinns 8,14, 15

OE EE EE. TID setstensntnciscasiscaincnnscisnmseennpinnitninnie 3, 8,15

25 U.S.C. 1TEAQDMB) ......0....cccrceseeseees 3, 7, 8, 9, 11, 12, 14, 15

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Ee He icisitsicensntistesitinnesitiicinctanatinpsainirrcstnaticaiial 4,13

Indian Gaming Regulatory Act, 25 U.S.C. 2701 «2.2... 4

Indian Land Consolidation Act, 25 U.S.C 2202 et seq. ....... 13

FD UE TAs GED sieniisiistidansansersndaiecntanainiiniinieniannisnsnmininnsininoian 13

Indian Reorganization Act, 25 U.S.C. 461 et seq.:

9G Be Ua GE cictennicsntiscstnitirnsiens 4, 5,6, 10, 11, 12, 13, 14, 20

OF TE Ie erencitcnieissasieretncctinsennimianeninsibanitcepininindanis 13-14

Maine Indian Claims Settlement Act, 25 U.S.C. 1721

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Te BOG sidiicnieltiiiintiininiiemeane 12

National Environmental Policy Act of 1969,

BB UI ER, GEE 6b COG, ccctacssenscnnnimncegusiertitmennannnnisiantanueasnasinanaans 6

National Gambling Impact Study Commniaaion Act,

Pub. L. No. 104-169, 110 Stat. 1482 ................sccscsssseseseeeees 18

Trade and Intercourse Act , 25 U.S.C.177 w...cecccccceeeeseeees 2

18 U.S.C. 1151 ceils seiipapadiieantaaminiiamial 5

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Miscellaneous: Page

Final Report of the National Gambling Impact Study

Camanstasion Gully 18, 1BGG) ...<.ccccccscscscsscecssciscccssosscrnssnsseones 18

H.R. Rep. No. 43, 98th Cong., Ist Sess. (1983) .........00 14,15

S. Rep. No. 222, 98th Cong., Ist Sess. (1983) ........ceceseeeeees 15

In the Supreme Court of the Gnited States

No. 00-1032

STATE OF CONNECTICUT,

EX REL. RICHARD BLUMENTHAL,

ATTORNEY GENERAL OF CONNECTICUT, ET AL.,

PETITIONERS

v.

UNITED STATES DEPARTMENT OF THE INTERIOR,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-22a)

is reported at 228 F.3d 82. The opinion of the district

court (Pet. App. 23a-47a) is reported at 26 F. Supp. 2d

397.

JURISDICTION

The judgment of the court of appeals was entered on

September 25, 2000. The petition for a writ of certiorari

was filed on December 22, 2000. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Prior to 1983, the State of Connecticut recognized

the Mashantucket Pequot Tribe (Tribe) as the sole suc-

cessor to the aboriginal Western Pequot Tribe, which

formerly occupied portions of western Connecticut.

The Tribe had an existing, State-recognized reservation

of approximately 200 acres near the Towns of Ledyard,

Preston, and North Stonington, Connecticut. In 1976,

the Tribe filed a federal lawsuit against certain private

land owners, claiming that in 1855 Connecticut had

transferred nearly 800 acres of the Tribe’s land without

congressional approval, in violation of the Trade and

Intercourse Act, now codified at 25 U.S.C. 177. The

lawsuit clouded title to hundreds of acres of land in

Connecticut. The State intervened as a third-party

defendant. The parties subsequently negotiated a

settlement, which was later ratified by Congress in the

Connecticut Indian Land Claims Settlement Act of 1983

(Settlement Act), 25 U.S.C. 1751 et seg. Pet. App. 5a.

The Settlement Act extinguished the Tribe’s claim

of aboriginal title to hundreds of acres of land. 25

U.S.C. 1753. In exchange, the Act provided for federal

recognition of the Tribe, 25 U.S.C. 1758; established a

settlement fund to enable the Tribe to acquire certain

additional lands, 25-U.S.C. 1754; and identified bounda-

ries within which any lands acquired by the Tribe with

settlement funds would be held in trust by the Secre-

tary of the Interior and become part of the Tribe’s

reservation, 25 U.S.C. 1752(3). The Act defined the

Tribe’s reservation to include the 200-acre reservation

previously recognized by the State, as well as “any

settlement lands taken in trust by the United States for

the Tribe.” 25 U.S.C. 1752(7). The Act defined the

“settlement lands” to include certain lands provided by

3

the State to implement the settlement, as well as about

800 acres of “private settlement lands” that were iden-

tified on a map filed with the State. 25 U.S.C. 1752(3)

and (4).

Section 1754 of the Act, entitled “Mashantucket

Pequot Settlement Fund,” created a $900,000 settle-

ment fund. Under subsection (b) of that provision, en-

titled “Expenditure of Fund; private settlement lands;

economic development plan; acquisition of land and

natural resources,” the bulk of that fund was made

available immediately to acquire the “private settle-

ment lands.” 25 U.S.C. 1754(b)(2). Unexpended por-

tions of the fund could be used to finance an “economic

development plan,” which could include the acquisition

of property other than the private settlement lands.

25 U.S.C. 1754(b)(3). Subsection 1754(b) further pro-

vided that:

(7) Lands or natural resources acquired under this

subsection which are located within the settlement

lands shall be held in trust by the United States for

the benefit of the Tribe.

(8) Land or natural resources acquired under this

subsection which are located outside of the settle-

ment lands shall be held in fee by the Mashantucket

Pequot Tribe, and the United States shall have no

further trust responsibility with respect to such

land and natural resources. Such land and natural

resources shall not be subject to any restriction

against alienation under the laws of the United

States.

25 U.S.C. 1754(b)(7) and (8) (emphasis added).

The Settlement Act states that “all laws and regula-

tions of the United States of general application to

Indians * * * which are not inconsistent with any

4

specific provision of this subchapter shalli be applicable

to the Tribe.” 25 U.S.C. 1758(a).'

2. In January 1993, the Tribe asked the Secretary of

the Interior to take certain lands into trust for the

Tribe. The lands were located outside the reservation

delineated by the Settlement Act and (except as dis-

cussed below) were acquired by the Tribe without the

use of settlement funds.

Section 5 of the Indian Reorganization Act (IRA), 25

U.S.C. 465, grants the Secretary broad authority to

take lands into trust on behalf of Indian Tribes and

individual Indians. See Pet. App. 27a n.5 (quoting

Section 5). The Secretary’s determination whether to

take lands into trust pursuant to Section 5 is limited by

regulations issued by the Department of the Interior.

25 C.F.R. Pt. 151. Among other things, those regula-

tions obligate the Secretary to consider: (1) the Indians’

need for additional land; (2) the purposes for which the

land will be used; (3) the impact on the State and its

political subdivisions resulting from removal of the land

from State tax rolls; and (4) the jurisdictional problems

and potential conflicts that may arise from taking the

land into trust. 25 C.F.R. 151.10. Off-reservation,

1 At the time the Settlement Act was enacted, “the Tribe was

impoverished, with no obvious future source of revenue in sight.”

Pet. App. 3a. In 1990, the Tribe obtained approval to conduct

Class III gaming activities on its reservation, pursuant to the

Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701. The Tribe

operates a casino on its reservation, which has proved to be

economically successful, generating new wealth for the Tribe as

well as economic opportunities for the surrounding non-tribal com-

munities. Pet. App. 3a, 46a n.24. The Tribe pays approximately

“$400,000 per year in property taxes to the Town of Ledyard” with

respect to the operation of the casino, and it employs numerous

non-Indian members of the community. bid.

5

noncontiguous lands may be taken into trust by the

Secretary in keeping with those criteria, but only

following notice to, and an opportunity to comment by,

state and local governments. The regulations specifi-

cally contemplate an opportunity for judicial review of

trust determinations. See 25 C.F.R. 151.12.’

The Tribe initially sought to transfer into trust six

parcels of land owned by it in fee, totaling about 245

acres. The land is located outside the reservation area

defined in the Settlement Act and within the Towns of

Ledyard, North Stonington, and Preston. Most of that

land is undeveloped, and the Tribe proposed to retain it

as a “green buffer” around the reservation that was

established by the Settlement Act. The only proposed

alteration to the land was the paving of an existing 4.5

acre gravel parking lot. The Tribe subsequently with-

drew its application with respect to an 82-acre tract of

land that had been purchased with settlement funds.

The revised application sought to have five lots, com-

prising about 165 acres, taken into trust by the

Secretary. It is undisputed that none of that land was

purchased with settlement funds.

In May 1995, the Secretary, after considering the

regulatory criteria governing Section 5 determinations,

granted the Tribe’s application to take the land into

trust. Pet. App. 2a.

3. Following the Secretary’s action, petitioners filed

this action pursuant to the Administrative Procedure

2 Land that is taken into trust by the Secretary ordinarily is

considered to be “Indian country” within 18 U.S.C. 1151. In addi-

tion, Indian trust lands generally are exempted from state or local

taxation, local zoning and regulatory requirements, and state

criminal and civil jurisdiction over certain matters involving

Indians on those lands. Pet. App. 4a.

6

——

Act, 5 U.S.C. 702, seeking to enjoin the Secretary from

taking the land into trust on the ground, inter alia, that

she was precluded from doing so under the terms of the

Settlement Act.*? The Secretary deferred taking the

lands into trust pending the outcome of this litigation.

On cross-motions for summary judgment, the district

court granted summary judgment for petitioners. Pet.

App. 23a-47a. The court observed that, while “Con-

gress has enacted numerous [Indian land claim] settle-

ment acts,” “[t]his appears to be the first case in which

a state has opposed a trust acquisition by the Secretary

on the ground that the acquisition is barred by a federal

statute approving an Indian land claims settlement.”

Id. at 26a. On the merits, the court framed the parties’

disagreement over the interpretation of the Settlement

Act as follows:

The parties’ dispute centers on the meaning of

the phrase “acquired under this subsection” in

§ 1754(b)(8). [Petitioners] suggest, in effect, that

the phrase means “acquired by or for the Mashan-

tucket Pequot Tribe.” Thus construed, the phrase

renders § 1754(b)(8) a prohibition against the Secre-

tary’s accepting into trust any land located outside

the settlement lands. [Respondents] contend that

§ 1754(b) of the statute, the section in which sub-

section (8) appears, pertains to the use of the Settle-

ment Fund and, accordingly, that the phrase

3 Petitioners also claimed, inter alia, that Section 5 of the IRA

amounts to an unconstitutional delegation of legislative authority

to the Executive Branch, and that the Secretary’s decision to take

the land at issue into trust violated the National Environmental

Policy Act of 1969, 42 U.S.C. 4321 et seqg., and the Coastal Zone

Management Act of 1972, 16 U.S.C. 1451 et seg., and was otherwise

arbitrary and capricious. See Pet. App. 24a n.1.

7

“acquired under this subsection” means “purchased

with money from the Settlement Fund.” Construed

in this manner, the provision’s acknowledged pro-

hibition on the Secretary’s § 465 authority is not

triggered in this case because the land at issue was

not purchased with Settlement Fund money.

Pet. App. 32a-33a.

The district court determined that Section 1754(b)(8)

and, in particular, the phrase “acquired under this sub-

section” is ambiguous. Pet. App. 33a. The court then

considered “other indicia of statutory meaning,”

beginning with the legislative history, and concluded

that “[petitioners’] interpretation of the statute is

correct.” Jd. at 34a. In so holding, the court declined

to accord any deference to the Department of the

Interior’s interpretation of the Settlement Act, or to

invoke the canon of construction that ambiguities

contained within statutes passed for the benefit of

Indians should be construed in favor of the Indians. /d.

at 42a-46a. The court permanently enjoined the Secre-

tary from taking the land into trust. Jd. at 47a.

4. The court of appeals reversed. Pet. App. la-22a.

The court held that the Settlement Act does not cate-

gorically preclude the Secretary from taking the lands

at issue into trust and, in particular, that Section

1754(b)(8) “applies only to land purchased with settle-

ment funds.” Jd. at 9a.

The court began with the language of the statute.

“Reading § 1754 as a whole,” the court found “that the

phrase ‘acquired under this subsection’ in § (b)(8) is

determinative of the statute’s reach.” Pet. App. 9a.

The court explained that, given that Section 1754 is en-

titled “Mashantucket Pequot Settlement Fund,” and

that the heading of subsection (b) of that section refers

8

specifically to the “Expenditure of Fund,” the reference

in Section 1754(b)(8) to “‘acquired under this subsec-

tion’ is logically read to mean ‘acquired with settlement

funds.’” Id. at 9a-10a. Petitioners’ contrary interpreta-

tion, the court reasoned, simply “renders the phrase

‘acquired under this subsection’ superfluous.” Jd. at 9a.*

The court explained its construction of Section

1754(b) as follows:

{L]Jand acquired by the Tribe with settlement funds

are either automatically taken into trust under

§ (b)(7) if they are within the boundaries of the

settlement lands, or may not be taken into trust if

outside those boundaries. The statute is silent with

regard to lands, like the contested 165 acres here,

not purchased with settlement funds. As to such

lands, whether or not they are within settlement

land boundaries, the Settlement Act does not apply.

The Tribe may apply to the Secretary to take them

into trust under the 1934 IRA, and the Secretary’s

decision will be governed by the considerations

outlined in the relevant regulations. Nothing in

§ (b)(7) supplants the Secretary’s power under the

IRA to take into trust lands acquired without the

use of settlement funds.

4 The court rejected petitioners’ argument that this construc-

tion in turn rendered Section 1754(b)(5) superfluous, explaining

that petitioners had “miscontrue[d] the meaning of [that pro-

vision].” Pet. App. lla. “Section (b)(5) pertains to trust responsi-

bilities over the settlement funds and provides for the automatic

stripping of trust responsibilities ‘[aJs the fund . . . is disbursed.’”

Id. at 11a-12a (quoting subsection (b)(5)). Subsection (b)(5), how-

ever, “is silent as to the status of lands purchased with settlement

funds”; instead, the court explained, that issue is dealt with by

subsections (b)(7) and (b)(8) of Section 1754. Id. at 12a.

Pet. App. 10a.

Although the court found “little, if any, ambiguity”

(Pet. App. 12a) as to the meaning of Section 1754(b)(8),

it nevertheless considered other evidence of Congress’s

intent. Considering the statute as a whole and its

purpose, the court explained that nothing in the statute

“indicates that Congress intended to establish the

outermost boundaries of the Tribe’s sovereign terri-

tory.” Jd. at 18a. By contrast, the Maine Indian Claims

Settlement Act (Maine Settlement Act), 25 U.S.C. 1721

et seq.—upon which all agree the Mashantucket Pequot

Settlement Act was modeled—broadly circumscribed

the authority of the United States to acquire lands in

trust for the affected tribes “[e]xcept for the provisions

of this subchapter,” and thus “supplant[ed] the

Secretary’s authority to take land into trust under the

1934 IRA beyond that expressly contemplated by the

Maine Settlement Act.” Pet. App. 14a (quoting Maine

Settlement Act). “The absence of an analogous

provision in the Settlement Act at issue in this case

confirms that the Settlement Act was not meant to

eliminate the Secretary’s power under the IRA to take

land purchased without settlement funds into trust for

the benefit of the Tribe.” Jbid.

The court also considered the legislative history of

the Settlement Act, but concluded that it offered “only

ambiguity, contradiction, and silence.” Pet. App. 16a.

At the same time, the court concluded that its interpre-

tation was supported by the canon that statutes passed

on behalf of Indians should be construed in favor of

the Indians. /d. at 17a-18a. In the court’s view, the

relatively favorable economic situation enjoyed by the

Tribe today “does not strip the Indian canon of its

force,” particularly since the Tribe was impoverished at

the time the Settlement Act was enacted. Jd. at 18a-

10

19a (citing Oregon Dep’t of Fish & Wildlife v. Klamath

Indian Tribe, 473 U.S. 753 (1985)). In addition, the

court concluded that “the deference we generally owe

to an agency’s interpretation of an ambiguous statute

supports our view of this appeal.” Jd. at 19a. As the

court explained, even though a subordinate employee

of the Department of the interior had taken differing

positions on the scope of the Settlement Act, the

agency’s views were still entitled to consideration,

because the agency had “provided a reasoned analysis

in support of its new determination that § (b)(8) refers

only to land purchased with money from the settlement

fund.” Jd. at 21a (citing Rust v. Sullivan, 500 U.S. 178,

186-187 (1991)).

Finally, the court observed that, to the extent that

petitioners were objecting to the Secretary’s exercise

of her authority to take land into trust pursuant to the

IRA “because the Mashantucket Pequots now have the

purchasing power to make substantial real estate

acquisitions,” petitioners’ arguments would be better

addressed to Congress than to the courts. Pet. App.

22a. “Other federally recognized Indian tribes are not

saddled with a geographical limit to the land that can be

taken into trust by the Secretary.” Jd. at 21a. And, as

the court put it, “we see no reason to fashion a rule [in

this case] that limits the Tribe from seeking authori-

zation, after administrative proceedings, to have land

placed into trust with the Secretary simply because

* * * [of] the Tribe’s recent economic good fortune.”

Id. at 21a-22a.

5. The court of appeals remanded the case for

further proceedings. Pet. App. 22a. On remand, peti-

tioners will be permitted to press their arguments that

Section 5 of the IRA is an impermissible delegation of

legislative power, and that the Secretary’s decision to

11

take the land at issue in this case into trust pursuant to

Section 5 was arbitrary and capricious. See note 3,

supra; Gov’t C.A. Br. 38-39.

ARGUMENT

The court of appeals correctly and unanimously re-

jected petitioners’ contentions that the Settlement Act

precludes the Secretary from taking the lands at issue

in this case into trust on behalf of the Tribe pursuant to

her general authority under Section 5 of the IRA. The

court’s ruling does not conflict with any decision of this

Court or any other court of appeals, and the inter-

locutory posture of this case strongly counsels against

further review here.

1. Petitioners renew (Pet. 13-21) their argument

that the Settlement Act prevents the Secretary from

taking the lands at issue into trust pursuant to Section

5 of the IRA, even though the lands were not purchased

with settlement funds. That contention was properly

rejected by the court of appeals.

Given its plain meaning, the phrase “acquired under

this subsection” in Section 1754(b)(8) of the Settlement

Act limits the trust prohibition to lands acquired

through the particular means identified in Section

1754(b)—.e., the expenditure of the settlement fund.

See 25 U.S.C. 1754(b)(1) (“The Secretary is authorized

and directed to expend, at the request of the Tribe, the

Fund together with any and all income accruing to such

Fund in accordance with this subsection.”). As the

court of appeals explained, that conclusion is supported

by the headings used in Section 1754, the language of

other provisions of Section 1754, and the statute as a

whole. See Pet. App. 9a-lla. Petitioners’ contrary con-

struction all but renders the key phrase “acquired

under this subsection” superfluous. Jd. at 9a.

12

The design of Section 1754(b)(8) is clear. Section

1754 establishes a fund with which the Tribe could

purchase “private settlement lands” that could be

added to its reservation. 25 U.S.C. 1752(3). Congress

anticipated that there might be a surplus in the fund

after purchasing those lands, and it provided that

remaining funds could be used to fund an “economic

development plan,” which could be used to acquire addi-

tional property. 25 U.S.C. 1754(b)(2). Section

1754(b)(8) directs that the Secretary shall not take any

additional property so acquired—e., under Section

1754(b), with settlement funds—into trust. Section

1754(b)(8) simply does not address the status of lands

acquired with resources other than those provided by

the settlement fund.

By contrast, the Maine Settlement Act, which the

parties agree was the model for the Settlement Act

under which this case arises (see Pet. App. 13a), does

contain an express prohibition on the exercise of the

Secretary’s general Section 5 authority to take non-

settlement lands into trust for the Indian Tribes

covered by that Act. See 25 U.S.C. 1724(e). “(I]t is

generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”

Rodriguez v. United States, 480 U.S. 522, 525 (1987)

(citations omitted). And, as the court of appeals con-

cluded, the disparate provisions of the Maine Settle-

ment Act and the Mashantucket Pequot Settlement Act

in this case furnish “strong” evidence that, in enacting

the Mashantucket Pequot Settlement Act, Congress did

not intend, sxb silentio, to circumscribe the Secretary’s

Section 5 authority to take land into trust with respect

to lands acquired by the Tribe without using settlement

funds. Pet. App. 13a.

13

Petitioners’ reliance (Pet. 14-15) on the Indian Land

Consolidation Act (ILCA), 25 U.S.C. 2202 et seq., is

misplaced. The ILCA specifically provides that “noth-

ing in this section is intended to supersede any other

provision of Federal law which authorizes, prohibits, or

restricts the acquisition of land for Indians with respect

to any specific tribe, reservation, or state[s].” 25 U.S.C.

2202. In that regard, the ILCA operates in the same

fashion as the savings clause of the Settlement Act at

issue in this case, which provides that all federal Indian

laws of general applicability are applicable to the

Mashantucket Pequot Tribe, except as specifically pro-

vided by the Settlement Act. 25 U.S.C. 1758(a). Peti-

tioners identify nothing in the ILCA that operates by

itself to preclude the lands at issue in this case from

being taken into trust by the Secretary under the IRA,

or that specifically bears on the construction of Section

1754(b) of the Settlement Act. In any event, peti-

tioners’ reliance on the separate ILCA simply under-

scores that their interpretation lacks footing in the

terms of the Settlement Act itself.’

° Petitioners are correct (Pet. 14) that certain provisions of the

IRA are inconsistent with certain other “specific provisions” of the

Settlement Act—provisions not at issue here. For example, the

Settlement Act precludes the Secretary from taking into trust

pursuant to Section 5 of the IRA any lands outside the settlement

lands if they are purchased with settlement funds. Similarly, the

Department has concluded that it cannot add lands to the reser-

vation, pursuant to Section 7 of the IRA, given the finite definition

of the newly formed reservation in the Settlement Act. 25 U.S.C.

1752(7). Those specific provisions of the IRA are therefore dis-

placed to the extent they are inconsistent with the Settlement Act.

Since taking lands into trust does not automatically add lands to a

reservation, however, petitioners are incorrect in asserting (Pet.

15) that, because the Secretary’s authority under Section 7 of the

14

Petitioners’ resort (Pet. 17-18) to legislative history

is also unavailing. As the court of appeals explained,

nothing in the legislative history compels a different

conclusion from the one that follows from the statutory

text. Pet. App. 15a-17a. Indeed, if anything, the legis-

lative history simply confirms that Section 1754(b)

“establishes the terms under which the settlement fund

is to be administered,” H.R. Rep. No. 43, 98th Cong.,

Ist Sess. 7 (1983), which is consistent with the court of

appeals’ conclusion that the key phrase—“acquired

under this subsection”—in Section 1754(b)(8) means

acquired with settlement funds. The other aspects of

the legislative history relied upon by petitioners do not

confirm their interpretation of the statute, but instead

at most introduce “only ambiguity, contradiction, and

silence.” Pet. App. 16a.

The court of appeals’ interpretation does not render

Section 1754(b)(5) superfluous. See Pet. 16-17. Section

1754(b)(5) relieves the United States of its trust re-

sponsibility over settlement funds or property acquired

with such funds as monies are disbursed from the

settlement fund. Subsection (b)(5) does not address the

distinct question of the legal status of lands that are not

acquired with settlement funds. The purpose of sub-

section (b)(8), by contrast, is to establish the legal

status of lands that are purchased with settlement

funds but are located outside the statutorily-defined

settlement lands. The legislative history makes clear

that the two provisions have distinct purposes, explain-

ing that subsection (b)(5) is addressed to the United

States’ responsibility with regard to specific funds that

IRA is displaced, her authority under Section 5 of the IRA to take

lands into trust is also displaced.

15

have been disbursed under the Settlement Act. Pet.

App. 1la-12a.°

Petitioners point to a difference in language used in

subsections (b)(7) and (b)(8) (“acquired under this

subsection”) and in subsection (b)(5) (“purchased with

these sums”), and argue (Pet. 16) that Congress would

not have used both phrases to mean acquired with

settlement funds. The phrase “purchased with these

sums,” however, makes sense in the context of sub-

section (b)(5). As written in subsection (b)(5), “pur-

chased with these sums” does not refer to the settle-

ment fund, but rather to “sums paid” from the “Fund or

any portion thereof [as] disbursed by the Secretary in

accordance with this section [1754].” 25 U.S.C.

1754(b)(5). Because subsection (b)(5) is more specific

regarding the Secretary’s responsibility with respect to

“portion[s] * * * disbursed” and “sums paid” from the

settlement fund, it makes sense that Congress did not

use the more general “acquired under this subsection”

phrase found in subsections (b)(7) and (b)(8). Con-

versely, because subsections (b)(7) and (b)(8) are ad-

dressed primarily to the status of lands, and not the

disbursement of settlement funds, it makes sense that

Congress did not use the “sums paid” formulation

employed in subsection (b)(5).

® The committee reports explain:

Section [1754](b)(5) provides that as portions of the settlement

fund are disbursed to the proper tribal officials, the United

States shall have no further responsibility for the use of those

funds disbursed. The United States, of course, retains a

responsibility for those monies that remain in the settlement

fund.

S. Rep. No. 222, 98th Cong., Ist Sess. 14 (1983); H.R. Rep. No. 43,

supra, at 8.

16

Finally, the court of appeals correctly rejected the

contention that the Settlement Act was “a compre-

hensive statute intended to settle once-and-for-all the

extent of the Mashantucket Pequot’s sovereignty.”

Pet. App. 13a. The Settlement Act resolved specific

aboriginal land claims in a specific suit, and was ex-

plicitly intended to “remove all clouds on titles resulting

from such Indian land claims.” 25 U.S.C. 1751(c).

Petitioners err (Pet. 20-21) in attempting to broaden

the enactment in an effort to prevent this Tribe from

receiving the benefit of laws generally applicable to all

other Indian Tribes. That there may be some uncer-

tainty as to what lands may ultimately become Indian

trust lands is true for all States in which Indian Tribes

own (or may acquire) property that may be taken into

trust pursuant to the IRA. The uncertainty is not

unique to the Settlement Act at issue in this case, and is

not a result of the court of appeals’ interpretation of

that Act.

2. Petitioners argue (Pet. 21-28) that the court of

appeals improperly invoked the canon of construction

that ambiguities contained within statutes or treaties

passed for the benefit of Indians should be resolved in

favor of Indians. That contention is without merit.

This Court often invokes that canon in interpreting

federal enactments pertaining to Indian Tribes and has

recently observed that the canon is “deeply rooted in

this Court’s Indian jurisprudence.” County of Yakima

v. Confederated Tribes & Bands of the Yakima Indian

Nation, 502 U.S. 251, 269 (1992).’ In addition, as the

7 See, e.g., Hagen v. Utah, 510 U.S. 399, 411 (1994); Montana v.

Blackfeet Tribe, 471 U.S. 759, 766 (1985); County of Oneida v.

Oneida Indian Nation, 470 U.S. 226, 247 (1985); see also Three

Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng’g,

‘17

court of appeals recognized, the Court has invoked the

canon “where Indians were at no legal disadvantage.”

Pet. App. 18a-19a (discussing Oregon Dep’t of Fish &

Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 758,

766 (1985)). Congress legislates against the backdrop of

the settled Indian canon of construction.

In any event, the court of appeals’ discussion of the

Indian canon of construction does not warrant review.

That is particularly true in light of the fact that that

discussion was not necessary to the court’s conclusion

that the Settlement Act does not preclude the Secre-

tary from taking into trust lands that are not purchased

with settlement funds. The court based its holding first

and foremost on its reading of the statutory provisions

at issue, see Pet. App. 9a-12a; it simply added that, to

the extent that there was any ambiguity in the statute,

its interpretation found “additional support in the

unique canon of construction governing statutory pro-

visions involving Indians.” Jd. at 17a.

Petitioners contend that the Indian canon of con-

struction is outdated, and suggest that “[c]larification

of the rule is particularly important in the era following

enactment of the Indian Gaming Regulatory Act

(IGRA] when many tribes, like the Mashantucket

Pequots, have attained great wealth and benefit

through the assistance of non-Indian business inter-

ests.” Pet. 28. The lower court case law does not sup-

port that conclusion. But, in any event, this case would

be a poor vehicle in which to consider that argument in

467 U.S. 138, 149 (1984); McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164, 174 (1973); Choctaw Nation v. United

States, 318 U.S. 428, 431-433 (1943); Alaska Pac. Fisheries v.

United States, 248 U.S. 78, 89 (1918); Choate v. Trapp, 224 U.S.

665, 675 (1912).

18

light of the fact that the Settlement Act at issue was

passed five years before IGRA. Similarly, while

petitioners highlight the recent economic success

enjoyed by the Tribe in this case, it is undisputed that,

at the time of the enactment of the Mashantucket

Pequot Settlement Act, “the Tribe was impoverished,

with no obvious future source of revenue in sight.” Pet.

App. 3a. Thus, as the court of appeals explained below,

even accepting petitioners’ argument “that the Indian

canon of construction applies with less force to statutes

or treaties negotiated with a wealthy, powerful, and

well-represented Indian tribe,” that principle “has no

application” with respect to the Settlement Act in-

volved in this case. Jd. at 19a.*

3. Petitioners argue (Pet. 28-29) that the court of

appeals improperly took account of the Department of

the Interior’s interpretation of the Settlement Act.

That argument also does not merit review. To begin

with, just as was true with respect to the Indian canon

of construction, the court’s discussion of the agency’s

interpretation was not necessary to the court’s holding

that the Settlement Act does not prevent the Secretary

from taking the lands at issue into trust; rather, the

court simply added that, “{i]nsofar as agency deference

8 Petitioners imply that the Nation’s Indian Tribes have been

transformed by the passage of the IGRA into wealthy, co-equal

participants in the legislative process. That is incorrect. The vast

majority of the Nation’s Indian Tribes continue to live at or below

the poverty level. In addition, “[m]Jore than two-thirds of Indian

Tribes do not participate in Indian gambling at all.” Final Report

of the National Gambling Impact Study Commission 6-2 (July 18,

1999), drafted pursuant to the National Gambling Impact Study

Commission Act, Pub. L. No. 104-169, 110 Stat. 1482. And for the

majority of Indian Tribes that do have gambling facilities, “the

revenues have been modest.” /d. at 6-3.

19

remains appropriate in this case, it confirms our

interpretation of the Settlement Act.” Pet. App. 19a.

In any event, as this Court has repeatedly recog-

nized, agencies are not forbidden from clarifying

or changing their position on the interpretation of a

statute with which they are charged with admini-

stering. As long as an agency provides a reasoned

explanation for its change in position, its interpretation

may still be afforded deference by a reviewing court.

See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742

(1996); Good Samaritan Hosp. v. Shalala, 508 U.S. 402,

416 (1993). The court of appeals in this case concluded

that “[t]he Department of the Interior has provided a

reasoned analysis in support of its new determination

that § 8(b) refers only to land purchased with money

from the settlement fund,” and that, “even according

[that interpretation] less deference than usual,” the

court should still “take account of the agency’s posi-

tion.” Pet. App. 2la. That conclusion is correct and

does not merit further review.”

” Moreover, the factual premise of petitioners’ argument—i.e.,

that the Department changed its position on the proper inter-

pretation of the Settlement Act—is itself debatable. A regional

solicitor of the Bureau of Indian Affairs initially concluded that

lands located outside the settlement area must be held in fee and

may not be held in trust, relying primarily on the legislative

history of the Settlement Act. Following a more detailed analysis

of the statute, however, that same official later reconsidered his

view and determined that the lands at issue could be taken into

trust. The regional solicitor was not authorized to bind the De-

partment, and the agency itself has only adopted one position: that

the Settlement Act does not prevent the Secretary from exercising

her general authority pursuant to the IRA with respect to lands

that are not acquired with settlement funds. Cf. Wisconsin v. City

of New York, 517 US. 1, 23 (1996) (“[T]he mere fact that the Secre-

tary’s decision overruled the views of some of his subordinates is

20

4. Finally, review is not warranted to consider

petitioners’ broad-brush arguments that the sover-

eignty of Connecticut has been (or will be, with respect

to hypothetical future trust applications by the Tribe)

improperly diminished. The only question decided by

the court of appeals is whether the Settlement Act

categorically precludes the Secretary from exercising

her general authority under Section 5 of the IRA to

take lands into trust for the Tribe, even with respect to

lands that were not acquired by the Tribe with settle-

ment funds. To the extent that petitioners object to the

scope of the Secretary’s authority to take lands into

trust for Indians pursuant to Section 5, or to the exer-

cise of that authority in this case based on particular

factors other than the Settlement Act, they may pre-

sent those arguments on remand to the district court,

and possibly still prevail in their effort to prevent the

Secretary from taking the lands at issue into trust. See

note 3, supra; Gov’t C.A. Br. 38-39. In that regard, the

interlocutory nature of this case in itself counsels

strongly against granting certiorari. See Virginia

Military Inst. v. United States, 508 U.S. 946, 946 (1993)

(“We generally await final judgment in the lower courts

before exercising our certiorari jurisdiction.”) (Scalia,

J., respecting the denial of the petition for writ of

certiorari).

by itself of no moment in any judicial review of his decision.”); see

Gov't C.A. Br. 35-36.

21

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BARBARA D. UNDERWOOD

Acting Solicitor General

JOHN C. CRUDEN

Acting Assistant Attorney

General

ROGER MARTELLA

ELIZABETH ANN PETERSON

M. ALICE THURSTON

Attorneys

MARCH 2001