Opposition Brief — Utah v. Shivwits Band of Paiute Indians (No. 05-1160)

FILED |

QO | Mie |

FEB T2205

OFFICE OF THE CLERK

SUPREME COURT |) «

No. 05-1160

Iu the Supreme Court of the Hnited States

STATE OF UTAH; UTAH STATE DEPARTMENT OF

TRANSPORTATION; ST. GEORGE CITY, a Utah

Municipal corporation, PETITIONERS

Vv.

SHIVWITS BAND OF PAIUTE INDIANS and KUNZ &

COMPANY, d/b/a KUNZ OUTDOOR ADVERTISING;

GAYLE NORTON, in her capacity as Seeretarvofthe

United States Department of the Inter -

McCALEB, in his capacity as Assistant § |

Interior Indian Affairs; WAYNE NOR] |

capacity as Area Director of the Bureau

and the BUREAU OF INDIAN

ON PETITION FOR A WRIT OF ce

TO THE UNITED STATES COURT O

FOR THE TENTH —"

| yu @

BRIEF FOR RESPOND a an

SHIVWITS BAND OF PAIUTE aid =: a |

IN OPPOSITION | Ser AX

nS — Pe N a |

JOHN FREDI ere = |

FREDERIC oo = |

& HESTER, > s |

1900 Plaza D : |

Louisville, C

TEL:;(303) 67 Wkatinatii cee ae

FAX:(303) 673-9839, or -9155

E-MAIL: jfredericks@fphw.com

CURRY & TAYLOR ¢ WASH D.C. ¢ (202) 393-4141 ¢ UBSSCINFO.coOMmM

BEST AVAILABLE COPY

i

TABLE OF CONTENTS

Page

SE ET IEEE TEIN ccrsecuvvistovecccescssevecseceresoervenevcevoeecscoss ii

a. setcsinantgngetononenincnooonenorensens 1

BUMMARY OF THE ARGUMENT ccceccecoccescosscsessesoeseseescsessessvcvereeee 5

ss snssenaspenententonseaveovonsonreses 6

EELS 21

il

TABLE OF AUTHORITIES

Page

CASES

A.L.A. SCHECHTER POULTRY CORP. V. UNITED STATES, 295

2S. SEB (IRE) 2nncexsevecevvinnsnneressseoenicilinesnitasonnanbiaisiiaisiiinna 13

AM. POWER & LIGHT CO. V. SECURITIES & EXCH. COMM'N,

SP TE TS, BB, TG Ca caccancsvinerrnccinsieresctmnnseintnietatnenbnaennentantens 18

BLOCK V. NORTH DAKOTA, 461 U.S. 273 (1983) ..........000+. 17, 18

CITIZENS EXPOSING TRUTH ABOUT CASINOS V. NORTON,

ree en ee ae aN I 14

CITY OF LINCOLN CITY V. UNITED STATES DEP'T OF

INTERIOR, 229 F. SUPP. 2D 1109, 1128 (D. OR. 2001)......... 15

CONFEDERATED TRIBES OF SILETZ INDIANS V. UNITED

STATES, 110 F.3D 688, 698 (9TH CIR. 1997), CERT. DENIED,

SE CET: ee Ce tisehesttesiateieirinictastadiacicndedainaptidiiai a 8

DEP'T OF THE INTERIOR V. SOUTH DAKOTA, 519 U.S. 919,

a ieiiiess este haiti iin ccna earls 12

J.W. HAMPTON, JR. & Co. V. UNITED STATES, 276 U.S. 394,

[| SESNRERC Uae vine eae MO ee w ieee ce nono 8

LAYNE & BOWLER CORP. V. WESTERN WELL WORKS, INC.,

, gtk & -@ | ARERR SP aE een emom eames 7

MISTRETTA V. UNITED STATES, 488 U.S. 361, 372 (1989)..... 13

PANAMA REFINING Co. V. RYAN, 293 U.S. 388 (1935).......... 13

RUST V. SULLIVAN, 500 U.S. 173, 190-91 (1991).............cseecees 15

iil

SHIVWITS BAND OF PAIUTE INDIANS V. UTAH, 428 F.3D 966

Sais Oe siieeiiceiscscsiinstnihastnsaibbiniceeeainctaibaiaitaaatiinianiagiesit 9

PAN ee ROR 5, GE Fe eve ncicnsineevtahetcinansteatnineeotonicnninns 13

SOUTH DAKOTA V. UNITED STATES DEP'T OF THE

INTERIOR, 423 F.3D 790 (8TH CIR. 2005) ...........0000 12; 18, 15

TOMAC V. NORTON, 433 F.3D 852 (D.C. CIR. 2006) .............02. 14

UNITED STATES V. ROBERTS, 185 F.3D 1125, 1187 (10TH CIR.

ae caisisiainsisbiiidienisisctlecbialinantigiidlniinionsindiaainaluanaiaaail 9, 10, 11, 12

WHITMAN V. AM. TRUCKING ASS'NS INC., 531 U.S. 457, 472

UIE E sicshcdisdassetiiainahastistiinicntibinalainbeleniameipuansgisiiaiaaatsalibplciianiateg passim

STATUTES

ee Satara iess scale cnitieetadeelbibetiiatdipi keine leldisilannaneamaaion 2,3

BAL ee ake: Weekes hlaicahiaetiannesiehibaddeiicaniaiiiaiaaiin 13, 17

ee as ee Oa Be iiitsicatdnidinsniaciiletaealbcdatdibgalchatolbisog 1

Fe es OE Ee hy BIR DD scciisiccestistisinstenebiniiinctidanantcanintetints 14

eit te ee et scents piniiiearsaeritialitaiabdiamaiciatiaiaeealaae 9

I i ae l

See als I OTTUD hich ciesaitigieesitiplainctadapdansaddheabatddaiaibaniibcansdl 6,17

RULES

3, SERRA Ren en SWE RC RA Ce Us a 5

12

lV

REGULATIONS

Be i ilies A Ie insicca sccustcirensnnnuliecslionimnseniiobcaatin 4

Ie es FOG Ee CRED aii cniissnebintinidlecinctediiianibdateladiananas 16

AE ike ESN e CT seiheessindicssirhinvsrieeteippienincndailacicaiiok 8

Se tle ees St RR ee Irccschstensscintttvesnitainiienepeindemenuiarssnidabisiinpels 16

Ce ee Fe I senssiisenotaisisioncinicitehinwtnstniabiiieens 16

Ae clin HF SU ID icteccseessctadsepconintcimiebabaenadaioicaiiental 7,9

Be es © ts RIE Lcsesisnipnscdceneressicasediaabenadacenietaichacladoamiiion 12

BAAS ioe Wie Baas RRL GPs tascescorsnsebnnentisielacinitsvialaiciles 4

60 Fed. Reg. 32879, 32875-32878 (June 23, 1995) .......cssseseeeees 6

60 Fed. Reg. 48894 (Sept. 21, 1995)..............ccccccscccsssscssecssscesecees 6

61 Fed. Reg. 18082 (April 24, 1996) ........ccscccsssssecvereccscsvscsscnseres 7

GE FOG, BO, POST GEO, SS, FOG E) cciessstristsrnrnsininserssritcrpiictcorsnvmiici 6

1

Respondent, Shivwits Band of Paiute Indians (“the

Tribe”), submits this Brief in Opposition to the Petition

for a Writ of Certiorari to review the judgment of the

United States Court of Appeals for the Tenth Circuit.

The Tribe submits that the Court should deny the

Petition because there is no compelling reason to

review the lower court’s ruling that Section 465 is

constitutional.

STATEMENT

Petitioners ask the Court to review whether

Section 465 is an unconstitutional delegation of

Congress’ authority to regulate commerce with Indian

Tribes. Congress has historically given the Executive

Branch broad authority over the management of Indian

affairs. E'.g.,25 U.S.C. §§ 2, 9, 13. Section 465 is part of

the Indian Reorganization Act of 1934 (IRA), 25 U.S.C.

§§ 461, et seq., an Act which was designed to bring an

end to an allotment policy that resulted in the loss of

millions of acres of Indian land. Section 465 was

designed to give the Secretary of the Interior the

authority to restore to Indian ownership some of what

was lost.

The court of appeals held that the Secretary of

the Interior had the constitutional authority to acquire

the parcels at issue in trust for the Tribe pursuant to

Section 465. Appendix of Petition for Writ of Certiorari

(hereinafter “Pet. App.”) 9-14. After the property was

taken in trust, the Tribe sought and obtained the

Secretary’s approval of the Tribe’s lease to Kunz and

2

Co.' for the purpose of constructing billboards on the

trust parcels pursuant to 25 U.S.C. § 415.2 Pet. App. 48,

60. The court of appeals also held that Petitioners had

no jurisdiction to regulate these federally sanctioned

activities. Pet. App. 28-33. Petitioners do not seek

review of the court of appeals’ holding on this latter

issue. Rather, Petitioners only seek review of the

court’s holding that Section 465 is constitutional.

In 1993, Kunz proposed that the Tribe purchase

the parcels and offered to finance the purchase in

return for a lease back to Kunz. Pet. App. 3, 95. The

Tribe saw the proposal as an economic development

opportunity, a way to “increase its meager revenue

stream.” Pet. App. 3. Thereafter, on July 7, 1994, an

official of the Bureau of Indian Affairs (BIA) contacted

the City Manager of the City of St. George and orally

advised him that the Tribe intended to purchase two

parcels of land and asked if the City “would provide a

letter of support for this endeavor.” Pet. App. 4;

Appellants’ App. at 128A, Shivwits Band of Paiute

Indians v. Utah (10% Cir. Case No. 03-4274). The City

declined to provide such a letter because the City “was

1 Plaintiff Kunz and Co., d/b/a Kunz Outdoor Advertising (Kunz), is

a California corporation engaged in the business of leasing outdoor

advertising space on billboards. It owns and/or leases ground

space, erects and maintains billboards thereon, and leases space on

the face of the billboards to businesses and entities engaging in

outdoor advertising.

2 The full text of 25 U.S.C. § 415 (1994) appears in the Appendix to

this Response (hereinafter “Resp. App.”), at Appendix A. The

version of 25 U.S.C. § 415 that appears in Appendix A is that which

was in effect at the time the parcels of land at issue here were

taken into trust.

3

afraid the land would be used for the purpose of

erecting outdoor advertising signs and the City was

opposed to [such] signs.” Jd. On August 1, 1994, the '

BIA sent a letter to the City again stating that the

Tribe was “in the process of purchasing two small

parcels of land located in an undeveloped area of” the

City. Id.; Fed. Aplee. Supp. App. at 1, Shivwits Band of

Paiute Indians v. Utah 10“ Cir. Case No. 03-4274).’

The letter identified the two parcels in detail by

location and tax identification numbers. Pet. App. 4.

The letter again sought City support of the Tribe’s

endeavor. Jd. The City did not respond to the BIA’s

letter. Id.; Appellants’ App. at 131, Shivwits Band of

Paiute Indians v. Utah (10 Cir. Case No. 03-4274).

On August 9, 1994, the Tribe purchased the

parcels from the respective private owners. Pet. App.

5. The next day, on August 10, 1994, the Tribe

tendered a special warranty deed to the BIA, along

with an application and supporting documents to the

BIA requesting that the off-reservation trust

acquisition be formally approved by that agency. /d.

Over one year later, on August 31, 1995, the BIA

approved the Tribe’s request for approval of the trust

acquisition and formally accepted the properties into

trust. Id.

* The two parcels in question are located approximately 19 miles

from the Tribe’s Reservation. Shivwits Band Fee-to-Trust Land

Transfer and Outdoor Advertising Leases Final Environmental

Assessment B-W PN 808, 1-3 (March 2003); Appellant’s App. at

185, Shivwits Band of Paiute Indians v. Utah (10th Cir. Case No.

03-4274. The Reservation is located approximately 12 miles

northwest of the City of St. George, Utah. Id.

4

The Tribe’s lease of the two trust parcels to

Kunz was approved by the Secretary on September 11,

1995. Pet. App. 97. By letter dated October 25, 1995,

shortly after Kunz began construction of five

advertising billboards on the Tribe’s Trust property,

the Utah Attorney General’s office, on behalf of the

Utah Department of Transportation, threatened Kunz

with criminal prosecution if it did not cease

construction of the signs immediately. Pet. App. 6. The

Tribe and Kunz then sought and obtained a preliminary

injunction in the district court. Pet. App. 7, n3.

In Petitioners’ statement of the case, they assert

that, “(t]he State of Utah and the City of St. George

became aware of Kunz’s plan [to lease the Tribe’s trust

properties for the purpose of outdoor advertising] once

construction of the billboards began.” Pet. 4. However,

this directly contradicts the record. As shown above,

the City was clearly on notice of the proposed trust

acquisition and the contemplated use of the property

over a year before the BIA actually accepted the deed

and took the land in trust. Pet. App. 4, 96-97.‘

Moreover, the record reflects that the City of St.

George at least suspected that billboards might be

constructed on the land for over a year before actual

construction began. Pet. App. 4. Yet, for reasons

unknown, the City of St. George chose to wait until

* The regulations in effect at the time did not require the BIA to

notify either the State or the City that the BIA intended to take

land in trust. Pet. App. 19; 25 C.F.R. § 151.1-.14 (1994). Resp.

App. E. The BIA nevertheless gave the City of St. George notice

of the proposed transaction over one year before the land was

actually taken in trust. The regulations now require that the State

and local governments be notified of any proposed trust

acquisition. 25 C.F.R. §§ 151.10-.11 (2006). Resp. App. B, C.

5

after the trust acquisition was complete, the leases

were approved, and the signs were in construction

before taking any action. The City of St. George

neither objected to the process nor sought the State’s

assistance prior to the United States’ formal acquisition

in trust in August 1995.

SUMMARY OF THE ARGUMENT

Supreme Court Rule 10 states that “[rJeview on

a writ of certiorari is not a matter of right, but of

judicial discretion. A petition for a writ of certiorari

will be granted only for compelling reasons.” This case

does not present compelling reasons for review.

Petitioner’s resistance to the taking of land into trust is

to be expected in light of the fact that state and local

governments are largely preempted from exercising

regulatory authority over federally authorized

activities in “Indian Country.” The resulting

“intergovernmental frictions,” Pet. 3, are a natural

consequence of overlapping sovereignty. The mere fact

that there may be a lot at stake for state and local

governments because Congress has granted the

Executive broad authority to take land into trust for

Indians does not make Section 465 an wnconstitutional

delegation of power.

Petitioners contend that Congress has

unconstitutionally delegated to the Executive branch

“unrestricted power to take lands - any lands - into

trust ‘for Indians.” Pet. 3. This alarmist reading of

Section 465 has been rejected by all of the courts that

have considered the issue. Moreover, even assuming

arguendo that Section 465 were found to be

unconstitutional, the Court is without the power to

6

afford meaningful relief to Petitioners in this case

because the Indian Lands exception to the Quiet Title

Act, 28 U.S.C. §2409(a) (QTA), bars Petitioners’ claims

because they seek to invalidate the United States’ trust

title to the lands at issue. Nor would review be

meaningful in this case because the regulations in effect

at the time the Tribe’s land was taken in trust have

since been superseded.* Finally, this case is simply not

appropriate for Supreme Court review because the

Tenth Circuit’s holding is not inconsistent with any

decision of this Court, nor does this case implicate

compelling principles that would have a widespread and

general impact on the public as a whole.

ARGUMENT

I. THIS CASE PRESENTS NO FUNDAMENTAL

CONSTITUTIONAL OR STATUTORY

QUESTION THE SETTLEMENT OF WHICH

IS LIKELY TO HAVE WIDESPREAD AND

GENERAL IMPACT

The Court has stated that:

[I]t is very important that we be

consistent in not granting the writ of

certiorari except in cases involving

principles the settlement of which is of

importance to the public as distinguished

from the parties, and in cases where there

is a real and embarrassing conflict of

° 60 Fed. Reg. 32879, 32875-32878 (June 23, 1995), as corrected at 60

Fed. Reg. 48894 (Sept. 21, 1995), as corrected at 62 Fed. Reg. 1057

(Jan. 8, 1997) (codified at 25 C.F.R. § 115.11 (2006)). Resp. App. C.

7

opinion and authority between the circuit

courts of appeal.

Layne & Bowler Corp. v. Western Well Works, Inc., 261

U.S. 387, 393 (1923) (per Taft, C.J.). The present case

does not pose such a question because every court to

consider the issue has correctly found that Section 465

is constitutional, and is not a “standardless grant of

complete discretion,” as Petitioners claim. Pet. i.

Moreover, the unique facts of this case make review

inappropriate because in the time period since the

particular properties in dispute were taken into trust

for the Tribe, the Secretary of the Interior has issued

new regulations affecting trust land acquisitions. The

new regulations provide for judicial review of the

Secretary’s decision to acquire the land before it is

actually taken in trust, thus removing any previous

concern over the lack of judicial review of the manner

in which the Executive Branch exercises its delegated

authority. Consequently, this is an isolated case in

which the procedures for taking land into trust were

governed by regulations that no longer apply. Finally,

since title to the properties has already vested in the

United States government, Petitioners no longer have

the means to challenge the taking of land into trust. If

the Supreme Court wishes to review a challenge to

Section 465, it would be more appropriate to do so in a

case that challenges the taking of land into trust before

° See 61 Fed. Reg. 18082 (April 24, 1996) (establishing a 30-day

waiting period after final administrative decisions by the Secretary

to acquire land into trust under the IRA and other federal statutes

so that interested parties will have sufficient notice before land is

actually transferred to seek judicial or other review under the

Administrative Procedure Act and applicable regulations.)

(codified, as amended, at 25 C.F.R. § 151.12 (2006)). Resp. App. D.

8

title has vested, and which follows the acquisition

procedures identified under the current federal

regulations, as codified at 25 C.F.R. § 151.11 (2006).’

A. There is no conflict of authority between the

circuit courts of appeal on whether Section

465 is an unconstitutional delegation of

power; all of the courts to consider the matter

are in accord that § 465 is not an

unconstitutional delegation.

In a delegation challenge, the constitutional

question is whether the statute has delegated

legislative power to the agency. Whitman v. Am.

Trucking Ass’ns Inc., 531 U.S. 457, 472 (2001). The

Court has consistently held that when Congress confers

decisionmaking authority on agencies Congress must

“lay down by legislative act an intelligible principle to

which the person or body authorized to [act] is directed

to conform.” Jd. (quoting J.W. Hampton, Jr. & Co. v.

United States, 276 U.S. 394, 409 (1928) (second

emphasis added). The Tenth, Eighth, and First

Circuits have all directly considered the issue of

whether Section 465 is an unconstitutional delegation of

power. All have found that it is not, and that the

statute does in fact lay down an intelligible principle to

guide the Secretary’s discretion. Likewise, the Ninth

Circuit has opined that Section 465 is a constitutional

delegation. Confederated Tribes of Siletz Indians v.

United States, 110 F.3d 688, 698 (9th Cir. 1997), cert.

denied, 522 U.S. 1027 (1997) (stating that "the general

delegation of power to the Executive to take land into

trust for the Indians is a valid delegation because

* The full text of 25 C.F.R. § 151.11 (2006) appears in Resp. App. C.

9

Congress has decided under what circumstances land

should be taken into trust and has delegated to the

Secretary of the Interior the task of deciding when this

power should be used").’ In fact, there is no contrary

authority in any of the circuit courts of appeals. Not

only is there no conflict among the circuit courts of

appeals, no court has found Section 465 to be

unconstitutional since the Secretary of the Interior

revised the regulations to provide for judicial review of

final agency action in 1996.2 Because all of the circuit

courts are in accord, this case does not warrant

consideration by this Court.

The Tenth Circuit has twice specifically held that

Section 465 does not violate the non-delegation

doctrine, both in the case below, Shivwits Band of

Paiute Indians v. Utah, 428 F.3d 966 (10th Cir. 2005),

and in United States v. Roberts, 185 F.3d 1125, 1137

(10th Cir. 1999). In Roberts, the Tenth Circuit Court of

Appeals agreed with the district court’s finding that

Section 465 is a proper delegation of authority. 185

F.3d at 1137. The court concluded that the statute

* In Siletz, the court was specifically considering the

constitutionality of a provision of the Indian Gaming Regulatory

Act (IGRA), 25 U.S.C. § 2719, which required the state governor’s

concurrence before land could be taken into trust by the Secretary

of the Interior on behalf of Indian tribes for gaming. In upholding

the constitutionality of § 2719, the Ninth Circuit Court of Appeals

discussed the broader power of the Secretary of the Interior to

take land into trust for Indians under 25 U.S.C. § 465 and found

that the general delegation of power to the Executive to take land

into trust for Indians is a valid delegation because Congress has

given specific guidelines to limit Executive discretion.

* See Resp. App. D for the current regulations, 25 C.F.R. § 151.12

(2006).

10

itself provides standards for the Secretary’s exercise of

discretion. Id. Specifically, the statute provides that

any land must be acquired for Indians, and funds

appropriated for the acquisitions may not be used to

provide land for Navajos outside their reservation

boundaries. Jd. (citations omitted). In addition, the

court noted that the legislative history identifies goals

of “rehabilitating the Indian’s economic life” and

“developing the initiative destroyed by .... oppression

and paternalism” of the prior allotment policy. Id.

(citations omitted).'°

The Tenth Circuit also held that Section 465 is

constitutional in the case below. Pet. App. 10-13. The

Tenth Circuit reaffirmed its previous holding from

Roberts, 185 F.3d at 1137, finding that “the statute

itself provides standards” for the Secretary’s exercise

of discretion and that the statute is therefore not an

unconstitutional delegation. Pet. App. 11-12. The court

'° Prior to 1887, title to most Indian land was held by the tribe and

not its citizens. The General Allotment Act (GAA) of 1887 was a

comprehensive congressional attempt to “civilize” Indians and

assimilate them into mainstream American society by breaking up

the tribal land base and parceling out plots, or “allotments,” to

individual Indians who were to be converted into yeoman farmers.

David H. Getches et al., Federal Indian Law 141 (4th ed. 1998).

While the goal of terminating tribalism and civilizing Indians may

have seemed to Congress at the time to be a noble goal, the darker

side of this policy was that millions of acres of surplus tribal lands

were opened up for settlement by non-Indian homesteaders. The

resulting loss of land was devastating for tribes. See note 17, infra.

The Indian Reorganization Act of 1934 was intended to bring an

end to the failed allotment policies and the concomitant loss of

Indian lands and to facilitate tribes’ acquisition of additional

acreage and repurchase of former tribal domains. Felix Cohen,

Handbook of Federal Indian Law 86 (2005 ed.).

11

noted that the legislative history identifies Congress’

underlying goals in passing Section 465, providing

further guidance to the Secretary in the exercise of his

or her discretion. /d.

Petitioners assert that the Tenth Circuit’s

opinion “ignores the nationwide scope and impact of the

power [Section 465] confers on local BIA bureaucrats.”

Pet. 21. To show this “impact,” Petitioners cite to a

statistic from 1999, in which the Department of the

Interior estimated that it receives 7,000 trust and

acquisition applications annually. /d. (citations omitted)

(emphasis added). However, Petitioners fail to cite the

number of these applications that were approved or

disapproved. More specifically, Petitioners do not

mention the number, if any, of these applications

approved over the objections of state or local

government. This statistic is simply not relevant to the

question of whether Section 465 is constitutional.

Moreover, tne Tenth Circuit is clearly not alone

in finding that Section 465 does not grant local BIA

bureaucrats “unbounded authority ... to stockpile lands

‘for Indians,” as suggested by Petitioners. Pet. 21.

Three other circuits have found that Section 465 is a

constitutional delegation of power.

In Carcieri v. Norton, the First Circuit rejected

the argument that Congress had failed to articulate

sufficient standards to guide the Secretary’s trust

determinations. 398 F.3d 22, 26 (Ist Cir. 2005).

Instead, the court found that the requirement in

Section 465 that the acquisition be “for the purpose of

providing land for Indians” was an “intelligible

principle” to sufficiently guide the Secretary’s

12

discretion. /d. at 26-30. The court thus agreed with the

conclusion of the district court and found, for the same

reasons articulated in Roberts, 185 F.3d 1125, that

Section 465 is not an unconstitutional delegation of

legislative power. Jd. at 30.

Next, in South Dakota v. United States Dep’t of

the Interior, 423 F.3d 790 (8th Cir. 2005) (South Dakota

IT), the Eighth Circuit Court of Appeals upheld the

district court’s finding that Section 465 was

constitutional after reviewing the question de novo.

The issue was before the court for the second time,

following years of litigation and a remand from this

Court." The court of appeals rejected the State’s

arguments that Section 465 does not provide sufficient

boundaries governing the Secretary’s decision to

acquire land in trust for Indians and fails to provide an

“intelligible principle.” South Dakota II, 423 F.3d at

795. Instead, the court found that the Supreme Court

'' In the first case, South Dakota v. United States Dep’t of the

Interior, 69 F.3d 878, 881-85 (8th Cir. 1995), vacated by 519 USS.

919 (1996), a panel of the Eighth Circuit, in a 2-1 decision,

concluded that Section 465 violated the non-delegation doctrine.

The court reasoned that the Department of the Interior had

interpreted its own power too broadly by treating the statute as

delegating unreviewable discretionary authority to the Secretary.

Id. In response to South Dakota I, the Department of the Interior

promulgated a new regulation that provided for judicial review, 25

C.F.R. § 151.12(b), and then petitioned for writ of certiorari, asking

that the United States Supreme Court vacate South Dakota I and

remand the case to the Department of the Interior. Jd. The

Supreme Court granted the writ and vacated the judgment,

directing that the matter be remanded “to the Secretary of the

Interior for reconsideration of his administrative decision,” in light

of the new regulation allowing for judicial review. Dep’t of the

Interior v. South Dakota, 519 U.S. 919, 919-20 (1996).

13

has given Congress wide latitude in meeting the

intelligible principle requirement and recognized that

“Congress simply cannot do its job absent an ability to

delegate power under broad general directives.” Jd.

(quoting Mistretta v. United Stai2s, 488 U.S. 361, 372

(1989)). The court found that it was not bound by its

earlier conclusion in South Dakota I, 69 F.3d 878,

because the Supreme Court vacated that decision.

South Dakota II, 423 F.3d at 796. The court then

reexamined the broader context of the IRA and

determined that 25 U.S.C. § 465 does in fact provide

guidance sufficient to withstand a constitutional

challenge based on non-delegation grounds. Id.

As the court noted in South Dakota II, the

Supreme Court has struck down statutes on delegation

grounds on only two occasions, and not since 19365.

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935);

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935). Moreover, the statutes at issue in

those cases arose under unique circumstances and

delegated to the President exceptionally broad control

over the national economy. South Dakota II, 423 F.3d

at 795. Since 1935, the Court has “almost never felt

qualified to second-guess Congress regarding the

permissible degree of policy judgment that can be left

to those executing or applying the law.” Jd., quoting

Whitman, 531 U.S. at 474-75. The court in South

Dakota II concluded that “the purposes evident in the

whole of the IRA and its legislative history sufficiently

narrow the delegation and guide the Secretary’s

discretion in deciding when to take land into trust.” 423

F.3d at 797. Section 465 was therefore held not to be an

unconstitutional delegation of power.

14

Most recently, in Tomac v. Norton, 433 F.3d 852

(D.C. Cir. 2006), the Court of Appeals for the D.C.

Circuit found that Congress’ delegation to the

Secretary of the authority to acquire real property in

trust for the benefit of the Pokagon Band of

Potawatomi Indians under Section 6 of the Indian

Restoration Act, Section 1300j-5, was not an unlawful

delegation of power. Section 6 of the Indian

Restoration Act is similar to Section 465 in that it

allows the Secretary to acquire real property for the

Tribe and hold such land in trust for the benefit of the

Tribe. Section 1300j-5. The court in Tomac found that

when this section is read in light of its clear purpose,

the history of the Tribe, and the Restoration Act as a

whole, it is clear that Congress set forth appropriate

boundaries to guide the Secretary in trust land

acquisitions. 433 F.3d at 866. This case, albeit dealing

with a different statute specific to the taking of lands in

trust for the Pokagon Band, lends further support that

Section 465 is not an unlawful delegation of power.

Moreover, federal district courts that have

considered the constitutionality of Section 465 and

similar statutes allowing for trust land acquisitions

have consistently found the delegation of authority to

be constitutional. See Citizens Exposing Truth About

Casinos v. Norton, No. 02-1754, 2004 U.S. Dist. LEXIS

27498, (D.D.C. Apr. 23, 2004); City of Roseville v.

Norton, 219 F. Supp. 2d 130, 154-56 (D.D.C. 2002), aff'd

348 F.3d 1020 (D.C. Cir. 2003) (the Auburn Indian

Restoration Act, 25 U.S.C. §§ 1800/-1, 1300/-2(a),

allowing for the taking of land into trust for the United

Auburn Indian Community, does not constitute an

unconstitutional delegation of Congressional authority);

15

City of Lincoln City v. United States Dep’t of Interior,

229 F. Supp. 2d 1109, 1128 (D. Or. 2001).

In fact, the only case to hold Section 465

unconstitutional under the delegation doctrine, South

Dakota I, was vacated and remanded by this Court, and

therefore has no precedential value. See Note 15,

supra. The law of the case in South Dakota after

remand is that Section 465 is indeed constitutional.

South Dakota IT, 423 F.3d at 797-799.

In addition to the ample authority establishing

that Section 465 is constitutional, this Court has stated

that courts must accord acts of Congress the

presumption of constitutionality. Rust v. Sullivan, 500

U.S. 178, 190-91 (1991). Therefore, absent some basis

for finding otherwise, which Petitioners have not

articulated, Section 465 should be presumed to be a

constitutional delegation of legislative power. In sum,

this case simply does not pose a_ significant

constitutional question such that Supreme Court

review would be appropriate.

B. This case is not appropriate for review

because it is an isolated case that will not

have importance to the public as a whole.

Petitioners claim that Section 465 can be easily

“exploited to avoid legitimate state laws and land use or

development restrictions.” Pet. 21. This is not the case

under the current regulations, which require that,

where there is an off-reservation acquisition of land, as

the distance between the tribe’s reservation and the

land to be acquired increases, “the Secretary shall give

greater scrutiny to the tribe’s justification of

16

anticipated benefits from the acquisition.” 25 C.F.R. §

151.11(a) (2006). Resp. App. C. In cases where the land

to be acquired is far from the tribe’s reservation, the

Secretary must also give greater weight to the

concerns raised by state and local governments with

respect to the “acquisition’s potential impacts on

regulatory jurisdiction, real property taxes and special

assessments.” 25 C.F.R. § 151.11(d) (2006). Resp. App.

C. Under the regulations in effect at the time the

properties here were taken in trust, the Secretary was

not required to make such an analysis, but rather was

only required to consider “jurisdictional problems and

potential conflicts of land use which may arise” as one

factor in evaluating a request for acquisition. 25 C.F.R.

§ 151.10 (1994). Resp. App. E. As a result of the

significant changes in the regulations, new trust

applications now have more hurdles to clear to be

accepted. It is a matter of public record that since 1995,

when the lands at issue in this case were taken in trust,

no other trust land applications submitted by the

Paiute Tribe of Utah or any of its Bands have been

approved, perhaps because of the additional

opportunities for state and local governments to

object. This fact itself indicates that the State’s

concern that there will be a proliferation of Indian trust

land acquisitions is unwarranted.

Respondents recognize that these new

regulations clearly could not cure an _ unlawful

delegation of power if the statute itself fails to provide

an intelligible principle. Whitman, 531 U.S. at 472-73.

% Joint Memorandum in Opposition to State Defendants’ Motion

for Summary Judgment at 20, Shivwits Band of Paiute Indians v.

Utah (Civil No. 2:95CV 1025C).

17

However, as every court to consider the issue has

found, 25 U.S.C. § 465, particularly when viewed within

the broader context of the IRA, provides sufficient

guidance to withstand a constitutional challenge on

delegation grounds. The effect of the new regulations

on the trust acquisition process merely adds further

support for the position that this case does not present

an important question warranting Supreme Court

review.

C. The Court Should Deny Review Because the

Court is Without Jurisdiction to Grant

Meaningful Relief.

The State’s claim that Section 465 is

unconstitutional is aimed at seeking a reexamination of

the federal decision to take land into trust. Because the

United States has already acquired the Shivwits land in

trust, any claims aimed at affecting title are barred by

the Indian lands exception to the Quiet Title Act, 28

U.S.C. §2409(a). Block v. North Dakota, 461 U.S. 273

(1983).

It is well-settled that the QTA provides the

exclusive means by which adverse claimants can

challenge the United States’ title to real property. Id.

at 286. The Indian Lands Exception to the QTA clearly

prohibits any action that would defeat title to Indian

lands acquired in trust under Section 465. /d. at 277.

Petitioners have not appealed the Tenth

Circuit’s ruling that the Quiet Title Act precluded the

court from reviewing and remedying any shortcomings

in taking the land at issue into trust. Therefore, even if

this Court wanted to review the issue whether Section

18

465 is unconstitutional, there would be no way to afford

meaningful relief to Petitioners because title to the land

would still be vested in the United States.

D. The court of appeals’ decision is not

inconsistent with this Court’s decision in

Whitman v. Am. Trucking Ass’n.

The Tenth Circuit rejected Petitioners’

interpretation of Whitman in the opinion below, finding

that Petitioners’ assertion “that the ‘intelligible

principle’ must be derived solely from the statutory

text, rather than the legislative history, is nowhere to

be found in Whitman.” Pet. App. 13. The court further

concluded that the Whitman Court reviewed and

applied its past precedent concerning the non-

delegation doctrine. /d. This precedent makes clear

that broad phrases of purpose in an act are not “utterly

without meaning” when viewed in the light of “the

purpose of the Act, its factual background and the

statutory context in which [the phrases of purpose]

appear.” Am. Power & Light Co. v. Securities & Exch.

Comm’n, 329 U.S. 90, 104 (1946) (emphasis added).

Thus, far from indicating that the intelligible principle

must be found only on the face of the Act itself and not

in the Act’s legislative history, the cases indicate that it

is important to determine if the delegation of authority

is constitutional within the broader context of the Act

and the factual background underlying its passage.

Moreover, Whitman itself made clear that the

statute does not have to provide a “determinate

criterion” for the exercise of the delegated power, as

long as a policy is articulated. 531 U.S. at 475.

Petitioners overlook this point when they state, “To be

19

sure, if Congress had enacted standards in Section [465]

or elsewhere, they could be fleshed out by reference to

[the factors identified in Am. Power & Light Co.]’. Pet.

16. However, Congress does not have to enact

“standards” so long as it articulates an “intelligible

principle” for the exercise of the delegated power.

Whitman, 531 U.S. at 475 (emphasis added). Congress

has conveyed such a principle in Section 465,

particularly when the statute is viewed in the context

of the overall IRA.

The standard articulated in Section 465 directs

the Secretary to exercise his or her authority “for the

purpose of providing land for Indians.” This is no

broader than other phrases in which the Court has

found an intelligible principle. For instance, in Nat’l

Broad. Co. v. United States, the Court upheld as a valid

delegation an act stating that an agency should

promulgate regulations encouraging the use of radio in

the “public interest, convenience, or necessity,” noting

that the meaning of “public interest” was limited in

light of the larger aim of the Act. 319 U.S. 190, 215-217

(1943). Similarly, in Whitman the Court upheld a

delegation to the Environmental Protection Agency to

set ambient air quality standards “at the level that is

requisite ... to protect the public health with an

adequate margin of safety.” 531 U.S. at 475-76.

Petitioners note these standards, but attempt to

distinguish them from setting land aside in trust on the

grounds that in those cases greater specificity by

Congress would be “insignificant or impossible.” Pet.

14.

Petitioners assume without any supporting

authority that the Secretary of the Interior’s decisions

20

in setting aside lands in trust for Indians do not involve

the same type of “complicated factors for judgment”

that were contemplated in Nat'l Broad. Co., 319 U.S. at

216. Pet. 14. However, Section 465 is part of the lerger

IRA, an Act intended to end the devastating policy of

allotment which resulted in the loss of millions of acres

of Indian land, and undertake new efforts to “encourage

economic development, self-determination, cultural

pluralism, and the revival of tribalism” for Indian

tribes. Felix Cohen, Handbook of Federal Indian Law

86 (2005 ed.). Under the IRA, the Executive was to

take an active role in enabling tribes to improve their

economic status. Jd. The IRA was also designed to

bring an official end to the failed assimilation policies

that had deprived Indians of their land and culture."

Id. at 78-87. Certainly against this backdrop, and in

light of the unique trust obligations that the federal

government owes to Indian tribes, the Secretary does

indeed have to make complicated decisions about how

to best assist Tribes in their economic development,

such that a broad grant of authority from Congress is

equally appropriate as it was with respect to the

statutes at issue in cases like Whitman and Natl

Broad. Co.

'8 Of the approximately 156 million acres of Indian land in 1881,

less than 78 million remained by 1900. Cohen, supra, at 78-79. By

1934, the year the IRA was passed, Indian land holdings had been

reduced to 48 million acres. Jd. Petitioners raise the concern that,

“At the end of 1997, more than 56 million acres in 36 states were

already held in trust by the Secretary.” Pet. 21 (citations omitted).

However, this har’iy seems significant in light of the more than

one hundred million acres of land lost by Indians during the

Allotment Era.

a

21

Significantly, both the Tenth Circuit in the

opinion below and the Eighth Circuit in South Dakota

IT relied upon Whitman to support their holdings that

Section 465 is constitutional. Likewise, the First

Circuit cited to Whitman in Carcieri v. Norton. 398

F.3d at 32-34. None of these cases read Whitman to

support the notion that Section 465 is an

unconstitutional, standardless delegation.

In sum, Section 465 does not grant the Secretary

unbounded discretion, as Petitioners claim. Instead,

when read in light of the purpose of the IRA to restore

to Indians a portion of the lands lost during the failed

Allotment Era, the Act’s factual background, and the

broader statutory context, it is clear that Section 465

provides an intelligible principle to guide the Secretary

of the Interior in the exercise of his or her discretion.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted this 12th day of May,

2006.

FREDERICKS, PELCYGER & HESTER, LLC

JOHN FREDERICKS III

1900 Plaza Drive

Louisville, CO 80027

TEL: (303) 673-9600

FAX: (303) 673-9839, or -9155

E-MAIL: jfredericks@fphw.com

lb

APPENDIX A

25 U.S.C. § 415 (1994). Leases of restricted lands for

public, religious, educational, _ recreational,

residential, business, and other purposes; approval

by Secretary

(a) Any restricted Indian lands, whether tribally or

individually owned, may be leased by the Indian

owners, with the approval of the Secretary of the

Interior, for public, religious, educational, recreational,

residential, or business purposes, including the

development or utilization of natural resources in

connection with operations under such leases, for

grazing purposes, and for those farming purposes which

require the making of a substantial investment in the

improvement of the land for the production of

specialized crops as determined by said Secretary. All

leases so granted shall be for a term of not to exceed

twenty-five years, except leases of land located outside

the boundaries of Indian reservations in the State of

New Mexico, leases of land on the Aqua Caliente (Palm

Springs) Reservation, the Dania Reservation, the

Pueblo of Santa Ana (with the exception of the lands

known as the "Santa Ana Pueblo Spanish Grant")[,] the

Moapa Indian reservation, the Swinomish Indian

Reservation, the Southern Ute Reservation, the Fort

Mojave Reservation, the Burns Paiute Reservation, the

Coeur d'Alene Indian Reservation, the Kalispel Indian

Reservation, the pueblo of Cochiti, the pueblo of

Pojoaque, the pueblo of Tesuque, the pueblo of Zuni,

the Hualapai Reservation, the Spokane Reservation,

the San Carlos Apache Reservation, Yavapai-Prescott

Community Reservation, the Pyramid Lake

Reservation, the Gila River Reservation, the Soboba

2b

Indian Reservation, the Viejas -ndian Reservation, the

Tulalip Indian Reservation, the Navajo Reservation,

the Mille Lacs Indian Reservation with respect to a

lease between an entity established by the Mille Lacs

Band of Chippewa Indians and the Minnesota Historical

Society, leases the lands comprising the Moses

Allotment Numbered 10, Chelan County, Washington,

and lands held in trust for the Las Vegas Paiute Tribe

of Indians, and lands held in trust for the Twenty-nine

Palms Band of Luiseno Mission Indians, and lands held

in trust for the Reno Sparks Indian Colony, [,] lands

held in trust for the Cherokee Nation of Oklahoma,

lands held in trust for the Pueblo of Santa Clara, lands

held in trust for the Confederated Tribes of the Colville

Reservation, lands held in trust for the Cahuilla Band

of Indians of California, and the lands held in trust for

the Confederated Salish and Kootenai Tribes of the

Flathead Reservation, Montana, and leases to the

Devils Lake Sioux Tribe, or any organization of such

tribe, of land on the Devils Lake Sioux Reservation,

which may be for a term of not to exceed ninety-nine

years, and except leases of land for grazing purposes

which may be for a term of not to exceed ten years.

Leases for public, religious, educational, recreational,

residential, or business purposes (except leases the

initial term of which extends for more than seventy-

four years) with the consent of both parties may include

provisions authorizing their renewal for one additional

term of not to exceed twenty-five years, and all leases

and renewals shall be made under such terms and

regulations as may be prescribed by the Secretary of

the Interior. Prior to approval of any lease or extension

of an existing lease pursuant to this section, the

Secretary of the Interior shall first satisfy himself that

adequate consideration has been given to the

3b

relationship between the use of the leased lands and the

use of neighboring lands; the height, quality, and safety

of any structures or other facilities to be constructed on

such lands; the availability of police and fire protection

and other services; the availability of judicial forums for

all criminal and civil causes arising on the leased lands;

and the effect on the environment of the uses to which

the leased lands will be subject.

(b) Any lease by the Tulalip Tribes under subsection (a)

of this section, except a lease for the exploitation of any

natural resource, shall not require the approval of the

Secretary of the Interior (1) if the term of the lease

does not exceed fifteen years, with no option to renew,

(2) if the term of the lease does not exceed thirty years,

with no option to renew, and the lease is executed

pursuant to tribal regulations previously approved by

the Secretary of the Interior, or (3) if the term does not

exceed seventy-five years (including options to renew),

and the lease is executed under tribal regulations

approved by the Secretary under this clause (3).

4b

APPENDIX B

25 C.F.R. § 151.10 (2006) On-reservation

acquisitions.

Upon receipt of a written request to have lands taken

in trust, the Secretary will notify the state and local

governments having regulatory jurisdiction over the

land to be acquired, unless the acquisition is mandated

by legislation. The notice will inform the state or local

government that each will be given 30 days in which to

provide written comments as to the acquisition's

potential impacts on regulatory jurisdiction, real

property taxes and special assessments. If the state or

local government responds within a 30-day period, a

copy of the comments will be provided to the applicant,

who will be given a reasonable time in which to reply

and/or request that the Secretary issue a decision. The

Secretary will consider the following criteria in

evaluating requests for the acquisition of land in trust

status when the land is located within or contiguous to

an Indian reservation, and the acquisition is not

mandated:

(a) The existence of statutory authority for the

acquisition am@ any limitations contained in such

authority;

(b) The need of the individual Indian or the tribe for

additional land;

(c) The purposes for which the land will be used;

(d) If the land is to be acquired for an individual Indian,

the amount of trust or restricted land already owned by

5b

or for that individual and the degree to which he needs

assistance in handling his affairs;

(e) If the land to be acquired is in unrestricted fee

status, the impact on the State and its political

subdivisions resulting from the removal of the land

from the tax rolls;

(f) Jurisdictional problems and potential conflicts of

land use which may arise; and

(g) If the land to be acquired is in fee status, whether

the Bureau of Indian Affairs is equipped to discharge

the additional responsibilities resulting from the

acquisition of the land in trust status.

(h) The extent to which the applicant has provided

information that allows the Secretary to comply with

516 DM 6, Appendix 4, National Environmental Policy

Act Revised Implementing Procedures, and 602 DM 2,

Land Acquisitions: Hazardous Substances

Determinations. (For copies, write to the Department

of the Interior, Bureau of Indian Affairs, Branch of

Environmental Services, 1849 C Street NW, Room 4525

MIB, Washington, DC 20240.)

6b

APPENDIX C

25 C.F.R. § 151.11 (2006) Off-reservation

acquisitions.

The Secretary shall consider the following

requirements in evaluating tribal requests for the

acquisition of lands in trust status, when the land is

located outside of and noncontiguous to the tribe's

reservation, and the acquisition is not mandated:

(a) The criteria listed in Section 151.10 (a) through (c)

and (e) through (h);

(b) The location of the land relative to state boundaries,

and its distance from the boundaries of the tribe's

reservation, shall be considered as follows: as the

distance between the tribe's reservation and the land to

be acquired increases, the Secretary shall give greater

scrutiny to the tribe's justification of anticipated

benefits from the acquisition. The Secretary shall give

greater weight to the concerns raised pursuant to

paragraph (d) of this section.

(c) Where land is being acquired for business purposes,

the tribe shall provide a plan which specifies the

anticipated economic benefits associated with the

proposed use.

(d) Contact with state and local governments pursuant

to 151.10 (e) and (f) shall be completed as follows: upon

receipt of a tribe's written request to have lands taken

in trust, the Secretary shall notify the state and local

governments having regulatory jurisdiction over the

land to be acquired. The notice shall inform the state

7b

and local government that each will be given 30 days in

which to provide written comment as to the

acquisition's potential impacts on regulatory

jurisdiction, real property taxes and _ special

assessments.

8b

APPENDIX D

25 C.F.R. § 151.12 (2006) Action on requests.

(a) The Secretary shall review all requests and shall

promptly notify the applicant in writing of his decision.

The Secretary may request any additional information

or justification he considers necessary to enable him to

reach a decision. If the Secretary determines that the

request should be denied, he shall advise the applicant

of that fact and the reasons therefor in writing and

notify him of the right to appeal pursuant to Part 2 of

this title.

(b) Following completion of the Title Examination

provided in § 151.13 of this part and the exhaustion of

any administrative remedies, the Secretary shall

publish in the Federal Register, or in a newspaper of

general circulation serving the affected area a notice of

his/her decision to take land into trust under this part.

The notice will state that a final agency determination

to take land in trust has been made and that the

Secretary shall acquire title in the name of the United

States no sooner than 30 days after the notice is

published.

9b

APPENDIX E

25 C.F.R. § 151.1 (1994) Purpose and scope.

These regulations set forth the authorities, policy, and

procedures governing the acquisition of land by the

United States in trust status for individual Indians and

tribes. Acquisition of land by individual Indians and

tribes in fee simple status is not covered by these

regulations even though such land may, by operation of

law, be held in restricted status following acquisition.

Acquisition of land in trust status by inheritance or

escheat is not covered by these regulations. These

regulations do not cover the acquisition of land in trust

status in the State of Alaska, except acquisitions for the

Metlakatla Indian Community of the Annette Island

Reserve or it members.

25 C.F.R. § 151.2 (1994) Definitions.

(a) "Secretary" means the Secretary of the Interior or

his authorized representative acting under delegated

authority.

(b) "Tribe" means any Indian tribe, band, nation, pueblo,

community, rancheria, colony, or other group of

Indians, including the Metlakatla Indian Community of

the Annette Island Reserve, which is recognized by the

Secretary as eligible for the special programs and

services from the Bureau of [Indian Affairs. For

purposes of acquisitions made under the authority of 25

U.S.C. 488 and 489, or other statutory authority which

specifically authorizes trust acquisitions for such

corporations, "Tribe" also means a _ corporation

10b

chartered under section 17 of the Act of June 18, 1934

(48 Stat. 988; 25 U.S.C. 477) or section 3 of the Act of

June 26, 1936 (49 Stat. 1967; 25 U.S.C. 508).

(c) "Individual Indian" means:

(1) Any person who is an enrolled member of a tribe;

(2) Any person who is a descendent of such a

member and said descendant was, on June 1, 1934,

physically residing on a federally recognized Indian

reservation;

(3) Any other person possessing a total of one-half

or more degree Indian blood of a tribe;

(4) For purposes of acquisitions outside of the State

of Alaska, "Individual Indian" also means a person

who meets the qualifications of paragraph (c) (1), (2),

or (3) of this section where "Tribe" includes any

Alaska Native Village or Alaska Native Group

which is recognized by the Secretary as eligible for

the special programs and services from the Bureau

of Indian Affairs.

(d) "Trust land" or "land in trust status" means land the

title to which is held in trust by the United States for

an individual Indian or a tribe.

(e) "Restricted land" or "land in restricted status" means

land the title to which is held by an individual Indian or

a tribe and which can only be alienated or encumbered

by the owner with the approval of the Secretary

because of limitations contained in the conveyance

11b

instrument pursuant to Federal law or because of a

Federal law directly imposing such limitations.

(f) Unless another definition is required by the act of

Congress authorizing a particular trust acquisition,

"Indian reservation" means that area of land over which

the tribe is recognized by the United States as having

governmental jurisdiction, except that, in the State of

Oklahoma or where there has been a final judicial

determination that a _ reservation has_ been

disestablished or diminished, "Indian reservation"

means that area of land constituting the former

reservation of the tribe as defined by the Secretary.

(g) "Land" means real property or any interest therein.

(h) "Tribal consolidation area" means a specific area of

land with respect to which the tribe has prepared, and

the Secretary has approved, a plan for the acquisition of

land in trust status for the tribe.

25 C.F.R. § 151.3 (1994) Land acquisition policy.

Land not held in trust or restricted status may only be

acquired for an individual Indian or a tribe in trust

status when such acquisition is authorized by an act of

Congress. No acquisition of land in trust status,

including a transfer of land already held in trust or

restricted status, shall be valid unless the acquisition is

approved by the Secretary.

(a) Subject to the provisions contained in the acts of

Congress which authorize land acquisitions, land may

be acquired for a tribe in trust status (1) when the

12b

property is located within the exterior boundaries of

the tribe's reservation or adjacent thereto, or within a

tribal consolidation area; or, (2) when the tribe already

owns an interest in the land or, (8) when the Secretary

determines that the acquisition of the land is necessary

to facilitate tribal self-determination, economic

development, or Indian housing.

(b) Subject to the provisions contained in the acts of

Congress which authorize land acquisitions or holding

land in trust or restricted status, land may be acquired

for an individual Indian in trust status (1) when the

land is located within the exterior boundaries of an

Indian reservation, or adjacent thereto; or, (2) when the

land is already in trust or restricted status.

25 C.F.R. § 151.4 (1994) Acquisitions in trust of

lands owned in fee by an Indian.

Unrestricted land owned by an individual Indian or a

tribe may be conveyed into trust status, including a

conveyance to trust for the owner, subject to the

provisions of this part.

25 C.F.R. § 151.5 (1994) Trust acquisitions in

Oklahoma under Section 5 of the I.R.A.

In addition to acquisitions for tribes which did not

reject the provisions of the Indian Reorganization Act

and their members, land may be acquired in trust

status for an individual Indian or a tribe in the State of

Oklahoma under Section 5 of the Act of June 18, 1934

(48 Stat. 985; 25 U.S.C. 465), if such acquisition comes

13b

within the terms of this part. This authority is in

addition to all other statutory authority for such an

acquisition.

25 C.F.R. § 151.6 (1994) Exchanges.

An individual Indian or tribe may acquire land in trust

status by exchange if the acquisition comes within the

terms of this part. The disposal aspects of an exchange

are governed by Part 152 of this title.

25 C.F.R. § 151.7 (1994) Acquisition of fractional

interests.

Acquisition of a fractional land interest by an individual

Indian or a tribe in trust status can be approved by the

Secretary only if:

(a) The buyer already owns a fractional interest in the

same parcel of land; or

(b) The interest being acquired by the buyer is in fee

status; or

(c) The buyer offers to purchase the remaining

undivided trust or restricted interests in the parcel at

not less than their fair market value; or

(d) There is a specific law which grants to the particular

buyer the right to purchase an undivided interest or

interests in trust or restricted land without offering to

purchase all of such interests; or

14b

(e) The owner of a majority of the remaining trust or

restricted interests in the parcel consent in writing to

the acquisition by the buyer.

25 C.F.R. § 151.8 (1994) Tribal consent for

nonmember acquisitions.

An individual Indian or tribe may acquire land in trust

status on a reservation other than its own only when

the governing body of the tribe having jurisdiction over

such reservation consents in writing to the acquisition;

provided, that such consent shall not be required if the

individual Indian or the tribe already owns an

undivided trust or restricted interest in the parcel of

land to be acquired.

25 C.F.R. § 151.9 (1994) Requests for approval of

acquisitions.

An individual Indian or tribe desiring to acquire land in

trust status shall file a written request for approval of

such acquisition with the Secretary. The request need

not be in any special form but shall set out the identity

of the parties, a description of the land to be acquired,

and other information which would show that the

acquisition comes within the terms of this part.

25 C.F.R. § 151.10 (1994) Factors to be considered in

evaluating requests.

15b

In evaluating requests for the acquisition of land in

trust status, the Secretary shall consider the following

factors:

(a) The existence of statutory authority for the

acquisition and any limiitations contained in such

authority;

(b) The need of the individual Indian or the tribe for

additional land;

(c) The purposes for which the land will be used;

(d) If the land is to be acquired for an individual Indian,

the amount of trust or restricted land already owned by

or for that individual and the degree to which he needs

assistance in handling his affairs;

(e) If the land to be acquired is in unrestricted fee

status, the impact on the State and its political

subdivisions resulting from the removal of the land

from the tax rolls;

(f) Jurisdictional problems and potential conflicts of

land use which may arise; and

(g) If the land to be acquired is in fee status, whether

the Bureau of Indian Affairs is equipped to discharge

the additional responsibilities resulting from the

acquisition of the land in trust status.

16b

25 C.F.R. § 151.11 (1994) Action on requests.

The Secretary shall review all requests and shall

promptly notify the applicant in writing of his decision.

The Secretary may request any additional information

or justification he considers necessary to enable him to

reach a decision. If the Secretary determines that the

request should be denied, he shall advise the applicant

of that fact and the reasons therefor in writing and

notify him of the right to appeal pursuant to Part 2 of

this title.

25 C.F.R. § 151.12 (1994) Title examination.

If the Secretary determines that he will approve a

request for the acquisition of land from unrestricted fee

status to trust status, he shall acquire, or require the

applicant to furnish, title evidence meeting the

Standards For The Preparation of Title Evidence In

Land Acquisitions by the United States, issued by the

U.S. Department of Justice. After having the title

evidence examined, the Secretary shall notify the

applicant of any liens, encumbrances, or infirmities

which may exist. The Secretary may require the

elimination of any such liens, encumbrances, or

infirmities prior to taking final approval action on the

acquisition and he shall require elimination prior to

such approval if the liens, encumbrances, or infirmities

make title to the land unmarketable.

25 C.F.R. ’§ 151.13 (1994) Formalization of

acceptance.

17b

Formal acceptance of land in trust status shall be

accomplished by the issuance or approval of an

instrument of conveyance by the Secretary as is

appropriate in the circumstances.

25 C.F.R. § 151.14 (1994) Information collection.

The information collection requirements contained in §§

151.9 and 151.12 have been approved by the Office of

Management and Budget under 44 U.S.C. 3501 3et seq.

and assigned clearance number 1076-0100. The

collection of information is from Indian tribes or

individuals who desire to acquire land in trust: and who

must identify the party(ies) involved and a description

of the land involved. The information will be used by

the Bureau to acquire the land in trust on behalf of the

Indian tribes and individuals. Response is required to

obtain a benefit.