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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

FILED |
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OFFICE OF THE CLERK
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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

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JOHN FREDI ere = |
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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
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BUMMARY OF THE ARGUMENT ccceccecoccescosscsessesoeseseescsessessvcvereeee 5
ss snssenaspenententonseaveovonsonreses 6

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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
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eit te ee et scents piniiiearsaeritialitaiabdiamaiciatiaiaeealaae 9
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0922%3A1. Public record. Not legal advice.