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

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No. 05-1160

FILED

JUN 1 2 2006

OFFICE OF THE

SUPREME COURT US.

In the Supreme Court of the Gnited States

STATE OF UTAH, ET AL., PETITIONERS

SHIVWITS BAND OF PAIUTE INDIANS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

SUE ELLEN WOOLDRIDGE

Assistant Attorney General

ELLEN J. DURKEE

MATTHEW J. SANDERS

Attorneys

Departmeni of Justice

Washington, D.C. 20530-0001

(202) 514

-2217

QUESTION PRESENTED

Whether the provision of the Indian Reorganization

Act, 25 U.S.C. 461 et seq., that authorizes the Secretary

of the Interior to take real property into trust “for the

purpose of providing land for Indians,” 25 U.S.C. 465, is

an unconstitutional delegation of legislative power.

(I)

TABLE OF CONTENTS

Page

IS NOE 6 58 6 5s dc eWiveceewneensadsustisextscowsn 1

0 PEPE POPE RPE SPS EE LP Cee Seer POT Eee are 2

NS FOS ET OE IO PE Oe POPE TOR PEE E TE 2

PE ee re TOP CTT TE TTT OPTE TET CRT Lee 12

CR =. ccccndcsiwadeue eerie dense p RSe RRP reat Fee 25

TABLE OF AUTHORITIES

Cases:

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

Se ED eens hic bv 00 eee ears ceerd aerate 16

Alaska v. Babbitt, 75 F.3d 449 (9th Cir. 1995), cert.

Gemied, SID US. BIS CAG aoc s vvcedcsvescccerices 21

American Power & Light Co. v. SEC, 329 U.S. 90

SIR Gaile Suton Gs bn eons wackandtebasens 14, 16, 18

Block v. North Dakota ex rel. Bd. of Univ. & Sch.

Ramee EG Gs ae LD (nick vanced ovuwesacautaees 21

Carcieri v. Norton, No. 03-2647, 2005 WL 2216322

ee Sf Rene Rend nates eh tee ape Oe 12

Cass County v. Leech Lake Band of Chippewa

Fodtana, SECU S. 1GBCIGGD) ss cc ccccccceceseses 14

Central Mach. Co. v. Arizona State Tax Comm'n, 448

eM 5 kuiiga mde ae cuca Gena ndaeunab 20

City of Sherrill v. Oneida Indian Nation, 544 U.S.

ROE Sse a Cy nebeecdccewiecewanuentes 13, 23

Confederated Tribes of Siletz Indians v. United

States, 110 F.3d 688 (9th Cir.), cert. denied, 522

Rie, SUES CE Sn coat occ eevetewe an caapeieas. 12

(II)

Cases—Continued: Page

County of Yakima v. Confederated Tribes & Bands of

the Yakima Indian Nation, 502 U.S. 251 (1992) ...... 2

Department of the Interior v. South Dakota, 519 U.S.

OGRE <2 nas kin cok duce snes eee ache aecadeseus 13

Florida v. United States Dep't of the Interior, 768

F.2d 1248 (11th Cir. 1985), cert. denied, 475 U.S.

nD EE esos 0 ib dd nek acme da we wes 21

Hagen v. Utah, 510 U.S. 399 (1994) .......ccccecccees 17

Hodel v. Irving, 481 U.S. 704 (1987) 2.2.2.2... cece eee 2

J.W. Hampton, Jr., & Co. v. United States, 276 US.

SCONE 5 kn wicdpn vom Sacer atu wi hakw wee ee teens 14

Lichter v. United States, 334 U.S. 742

0 SE He te hese nt pd < Derek ge Mei ote 15, 16, 18, 19

Loving v. United States, 517 U.S. 748 (1996) .......... 15

Matiz v. Arnett, 412 U.S. 481 (1973) ...........6.000eee 2

Mescalero Apache Tribe v. Jones, 411 U.S. 145

| ER RR Oe eT BB ogee Goan SER ee a EAM pe ae 17, 18

Mistretta v. United States, 488 U.S. 361 (1989) ..... 14,15

Morton v. Mancari, 417 U.S. 5385 (1974) ........... 17, 18

National Broad. Co. v. United States, 319 U.S. 190

CRUD ioe ca en Sas hance cau A vba Roce eerreres 15

Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d

SO CU Cr cs ao con avicceu eau cewiecesans 21

New Mevico v. Mescalero Apache Tribe, 462 U.S. 324

SE 5 ce a he Ons nae S eee eae ean 11

O’Connor v. Donaldson, 422 U.S. 563 (1975) .......... 13

Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) ......... 16

Wises ¢; Cha, Be Ue Fe A. ovo kde ce eareasusces 23

Cases—Continued: Page

Shawnee Trail Conservancy v. United States Dep't of

Agric., 222 F.3d 383 (7th Cir. 2000), cert. denied,

ane Sc OES Suen a cuys bs ecodaetssectees 21

Solem v. Bartlett, 465 U.S. 468 (1984) ................. 2

South Dakota v. United States Dep't of the Interior:

69 F.3d 878 (8th Cir. 1995), vacated and

remanded, 519 U.S. 919 (1996) ............... 13

423 F.3d 790 (8th Cir. 2005), petition for

cert. pending, No. 05-1428 (filed May

ee Ac vieuces seks heuaeeukeey es 12, 13, 16, 17

Touby v. United States, 500 U.S. 160 (1991) ........... 14

United States v. Curtiss-Wright Exp. Corp., 299 U.S.

aR ap pate tae gt pee Seas, Ap ae Tr en RC 20

United States v. Hitchcock, 205 U.S. 80 (1907) ......... 20

United States v. Jackson, 280 U.S. 183 (19380) ......... 20

United States v. Mazurie, 419 U.S. 544 (1975) ......... 20

United States v. Mitchell, 463 U.S. 206 (1983) ......... 20

United States v. Mottaz,.476 U.S. 834 (1986) .......... 21

United States v. Roberts, 185 F.3d 1125 (10th Cir.

1999), cert. denied, 529 U.S. 1108 (2000) ....... 8, 10, 12

Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980) ........... 18

Whitman v. American Trucking Ass’ns, Inc., 531

Se PED > 5 0. c4 ph Sec eawwe ed ews 10, 14, 15, 16, 20

Yakus v. United States, 321 U.S. 414 (1944) ........... 15

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 551 et seg. ..... 21

Clean Air Act, 42 U.S.C. T40B0DM1) onc. ccc ccc ccccce 15

Endangered Species Act of 1973, 16 U.S.C. 1531 et

seq.:

OG LAs DD oo wb ics R Rane edbeecenntees 24

Res SE in pr ek nese ccéhebhiodeutnans 24

Highway Beautification Act of 1965, 28 U.S.C. 131(h) ... 11

Indian General Allotment Act, ch. 119, 24 Stat. 388 ... 2,17

Indian Land Consolidation Act, 25 U.S.C. 2201

San net poe barre oN eee En MOM eam Una ria 13

Indian Reorganization Act, ch. 576, 48 Stat. 984 (25

RE SaAr ee MRED oon ves eh hisec eee raebeeres passim

Oe eee RE 5.5 Songs oe ackneanseecenone 2,17

Pe ee Ras OE ic tice bees kwh aes p30 essa dee 3, 17

Ce OO, ON Bs ee 3,17

GF Ue ok hives canvas nccduceienxees 3, 17

DR ee ees: UE vk vkkcascéerckviisteeeend passim

ee We vb kas eicd ot wukoe beaxeeweuees 3

ST ss Fes re eter ere tea 3

i oo es pci pe ekceaeieeeees 3, 17

Ce Oe dbs eo vee sae ea a 3,17

SE er OER, ohare ke dedsgeuccakeemerken 3, 17

Da ee ete OE 5. pina siecucssokeaveecenaees 3, 17

Re She Te Se earn ee ry pepe pre 3, 17

E_B bik Losey SUR a aaa mate 3,17

ae ee Oe ha oie hn eee 3

Bie th Ry ee rman a rire Py 16

Vil

Statutes and regula » .—Continued: Page

Indian Reorganization Act Amendments of 1988, Pub.

L. No. 100-581, Tit. I, 102 Stat. 2938:

Shs DEE bvcdce<dapclucndnyeseseous 13

5 20 FD Si Wanitenn wider hae cwreneens 13

Indian Reorganization Act Amendments of 1990, Pub.

L. No. 101-301, § 3(b)-(c), 104 Stat. 207 ............. 13

Indian Reorganization Act Amendments of 1994, Pub.

L. No. 103-263, § 5(b), 108 Stat. 709 ............... 13

National Environmental Policy Act of 1969, 42 U.S.C.

Sd pares Se eee ORIEN fy yr: 8, 9,11, 21

Paiute Indian Tribe of Utah Restoration Act, 25

AERA FO Oe OE ik CSREES dS a EE 6

OPAL SAE d duide dike sck cavity kinked 10

ge eer err re mere De re 6

Ee Meas MD ccc bebo kd dbveee denis care 21

GUSBC. ZV-lWZNS OGD) |. ccc cicvecvestcavses 21

SEAT ae Es BR A Tew he a 45 bce ee hse 5, 19

PUNE SNe Sick po kd eee Oak whe be 19

TIO TE PD oie p eu punodcuscekuberoee 19

SUE SUNG 5 a3 v5 oo ko aes eee eee 5, 22

I SUULSOUNE Sic or ep ceieete uy iee. 19

Ratt) 6 eee 19

OE TROD 5 occas oc va Sects eee 24

RG TRE OOO Skin kciciccnkannsdstsiveaneee 24

IE EE RE fis cevisavivisoncubeusdenoee 24

PCR SEEM) 8 «ede 4 Awe take tec eee £

ORION TRIE) 2655s ov dsinckedes cde 19

Se Si sy one ea a se 5, 6, 22

Vill

Regulations—Continued: Page

ie i ives decubees 6, 22

I OD co. ck dn éc bewsbcvecivecs 24

SE aso sda vba hase vc eeeeceeucevs 5

Ne ie webe's 5

ee Cee eda awd cs bbeideee ts 5

ES oe Gas Ae dk cc kw dbcasvaceuses 5

a i ic eweseane’ 5

Ne sa walt 5

Miscellaneous:

Cohen’s Handbook of Federal Indian Law (Nell

Jessup Newton et al. eds., 2005 ed.) ................ 2

CO aS OD: | | 19

es 5

G61 Fed. Reg. 18,082 (1996) ........................5,22

70 Fed. Reg. (2005):

ESET Otel tee ts eae 6

EE CE Weeds W GAN a0 Roce s Vetdvedesesecceces 6

H.R. Rep. No. 1804, 73d Cink: 2d Sess. (1934) ..... 17, 18

S. Rep. No. 1080, 73d Cong., 2d Sess. (1934) ........... 17

In the Supreme Court of the Gnited States

No. 05-1160

STATE OF UTAH, ET AL., PETITIONERS

SHIVWITS BAND OF PAIUTE INDIANS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-39)

is reported at 428 F.3d 966. The order of the district

court granting final judgment in favor of respondents

(Pet. App. 40-56) is unreported. The order of the dis-

trict court concerning the court’s jurisdiction to review

the Secretary of the Interior’s decision to take title to

the property at issue here (App., infra, la-15a) is re-

ported at 185 F’. Supp. 2d 1245. The order of the district

court denying petitioners’ motion for summary judg-

ment on constitutional grounds (Pet. App. 57-78) is not

published in the Federal Supplement, but is available at

2001 WL 1806986.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

November 9, 2005. On January 26, 2006, Justice Breyer

extended the time within which to file a petition for a

writ of certiorari to and including March 9, 2006, and the

petition was filed on that date. The jurisdiction of this

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

STATEMENT

1. a. In the Indian General Allotment Act-of 1887,

ch. 119, 24 Stat. 388, Congress adopted a policy of dis-

tributing Indians’ tribal lands to individual Indians. See

Hodel v. Irving, 481 U.S. 704, 706 (1987). In addition,

tribal lands that were deemed surplus were made avail-

able to settlement by non-Indians. See ibid. Other stat-

utes of that era similarly provided for the allotment of

land to individual Indians on particular reservations.

See id. at 706-707; Solem v. Bartlett, 465 U.S. 463, 466

(1984); Mattz v. Arnett, 412 U.S. 481, 496-497 (1973).

The allotment policy reduced Indian land holdings from

138 million acres in 1887 to 48 million acres in 1934, and

led to a patchwork of ownership on Indian reservations.

See County of Yakima v. Confederated Tribes & Bands

of the Yakima Indian Nation, 502 U.S. 251, 253-254

(1992); Cohen’s Handbook of Federal Indian Law 1009

n.337 (Nell Jessup Newton et al. eds., 2005 ed.).

Congress repudiated the policy of allotment in 1934

in the Indian Reorganization Act (IRA), ch. 576, 48 Stat.

984 (25 U.S.C. 461 et seq.).' In the IRA, Congress prohi-

bited any further allotment of reservation lands (§ 1, 25

' The relevant provisions of the IRA, as they presently appear in the

United States Code (as amended), are reproduced in an appendix

hereto. App., infra, 16a-23a.

U.S.C. 461), extended indefinitely the periods of trust or

restrictions on alienation of Indian lands (§ 2, 25 U.S.C.

462), provided for the restoration of surplus unallotted

lands to tribal ownership (§ 3(a), 25 U.S.C. 463(a)), and

prohibited any transfer of Indian lands (other than to

the Tribe or by inheritance) except exchanges autho-

rized by the Secretary as “beneficial for or compatible

with the proper consolidation of Indian lands and for the

benefit of cooperative organizations” (§ 4, 25 U.S.C.

464).

In addition, the IRA authorized or directed the Sec-

retary to undertake specified steps aimed at improving

the economic and social condition of Indians, including:

acquiring real property “for the purpose of providing

land for Indians” (IRA § 5, 25 U.S.C. 465); adopting reg-

ulations for forestry and livestock grazing on Indian

units (§ 6, 25 U.S.C. 466); proclaiming new Indian reser-

vations or adding to existing reservations with acquired

lands (§ 7, 25 U.S.C. 467); assisting financially in the

creation of Indian chartered corporations (§ 9, 25 U.S.C.

469); making loans to Indian-chartered corporation: vut

of a designated revolving fund “for the purpose of pro-

moting the economic development” of the Tribes (§ 10,

25 U.S.C. 470); paying tuition and other expenses for

Indian students at vocational schools (§ 11, 25 U.S.C.

471); and giving preference to Indians for employment

in positions relating to Indian affairs (§ 12, 25 U.S.C.

472).

Finally, the IRA included provisions designed to

strengthen Indian self-government. Congress autho-

rized Indian Tribes to adopt their own constitutions and

bylaws (IRA § 16, 25 U.S.C. 476), to incorporate (§ 17, 25

U.S.C. 477), and to decide, by referendum, whether to

opt out of the IRA’s application (§ 18, 25 U.S.C. 478).

; 4

Petitioners challenge the constitutionality of Section

5 of the IRA. The full text of that Section is as follows:

The Secretary of the Interior is authorized, in his

discretion, to acquire, through purchase, relinquish-

ment, gift, exchange, or assignment, any interest in

lands, water rights, or surface rights to lands, within

or without existing reservations, including trust or

otherwise restricted allotments, whether the allottee

be living or deceased, for the purpose of providing

land for Indians.

For the acquisition of such lands, interests in

lands, water rights, and surface rights, and for ex-

penses incident to such acquisition, there is autho-.

rized to be appropriated, out of any funds in the

Treasury not otherwise appropriated, a sum not to

exceed $2,000,000 in any one fiscal year: Provided,

That no part of such funds shall be used to acquire

additional land outside of the exterior boundaries of

Navajo Indian Reservation for the Navajo Indians in

Arizona, nor in New Mexico, in the event that legisla-

tion to define the exterior boundaries of the Navajo

Indian Reservation in New Mexico, and for other

purposes, or similar legislation, becomes law.

The unexpended balances of any appropriations

made pursuant to this section shall remain available

until expended.

Title to any lands or rights acquired pursuant to

this Act or the Act of July 28, 1955 (69 Stat. 392), as

amended (25 U.S.C. 608 et seq.) shall be taken in the

name of the United States in trust for the Indian

tribe or individual Indian for which the land is ac-

quired, and such lands or rights shall be exempt from

State and local taxation.

25 U.S.C. 465.

b. The Secretary has adopted regulations to imple-

ment his authority to acquire property under the IRA,

which is carried out by the Bures4 of Indian Affairs

(BIA). See 25 C.F.R. Pt. 151. In this case, the BIA ap-

plied the regulations that were in effect in 1994, when

the application concerning the property in question was

filed. Those regulations set forth the land-acquisition

policy and specify the factors that guide the Secretary’s

evaluation of land acquisition requests. See 25 C.F.R.

151.3(a), 151.10 (1995). The regulations provide that,

subject to consideration of the specified factors, land

may be acquired in trust for Indians when it is within or

adjacent to the Tribe’s reservation or tribal land-consoli-

dation area, the Tribe already owns the land, or the ac-

quisition “is necessary to facilitate tribal self-determina-

tion, economic development, or Indian housing.” 25

C.F.R. 151.3(a) (1995). The factors the Secretary con-

siders include “[t]he need of the individual Indian or the

tribe for additional land” and “[t]he purposes for which

the land will be used,” as well as “the impact on the

‘State and its political subdivisions resulting from the

removal of the land from the tax rolls” and any other

“{j]urisdictional problems and potential conflicts of land

use.” 25 C.F.R. 151.10(b), (c), (e) and (f) (1995).”

* The Secretary amended the land-acquisition regulations in 1995

and 1996. See 60 Fed. Reg. 32,874 (1995); 61 Fed. Reg. 18,082 (1996).

The amended regulations retain the same statement of land-acquisition

policy and the factors for reviewing an application that are identified in

the text. In addition, the amended regulations require the BIA to give

notice of a proposed acquisition and an opportunity for comment to

state and local governments. 25 C.F.R. 151.10, 151.11(d). If the land in

2. The Shivwits Band of Paiute Indians (Band) is

part of a federally recognized Tribe, and appears on the

Department of the Interior’s list of recognized Tribes

pursuant to Congress’s restoration of federal recogni-

tion in 1980. See 70 Fed. Reg. 71,194, 71,196 (2005);

Paiute Indian Tribe of Utah Restoration Act, 25 U.S.C.

761 et seg. The Band’s income is meager, with revenues

in 1999 of only $90,417. Pet. App. 51. The Shivwits Res-

ervation itself is located in a remote area in southwest-

ern Utah, approximately 12 miles northwest of the City

of St. George. Pet. C.A. App. 185.

In 1993, the Band entered into discussions with Kunz

& Co. (Kunz) and the BIA concerning the potential ac-

quisition of property adjacent to Interstate 15 within the

City of St. George for the purpose of pursuing economic

development. opportunities. that would increase the

Band’s income. Pet. App. 3-4. Kunz proposed that, if

the Band acquired the property, Kunz would rent it

from the Band for a period of 20 years and construct

billboards on the property. /d. at 3-4, 51. The land was

undeveloped, but was within an area that has been un-

dergoing rapid development. /d. at 3-4, 51-52. On Au-

gust 9, 1994, the Band acquired two parcels of property

question is neither within nor contiguous to a reservation, the Secretary

will give increasing scrutiny to the Tribe’s claim of anticipated benefits

and increasing weight to any adverse impact of acquisition on the State

or locality’s regulatory jurisdiction or tax base as the distance of the

property from the Tribe’s reservation increases. 25 C.F.R. 151.11(b)

and (d). Finally, the 1996 regulatory amendment provides a thirty-day

period after publication of the Secretary’s decision to take land into

trust before title is actually acquired, 25 C.F.R. 151.12(b), so that an

interested party may bring a judicial challenge to the acquisition. Such

a challenge would be barred by sovereign immunity after title is

acquired, due to the exception for Indian lands in the Quiet Title Act, 28

U.S.C. 2409a. See pp. 20-22, infra.

in a private sale and, on the following day, tendered an

application to the BIA to take the property in trust and

a special warranty deed for that purpose. /d. at 5.

In anticipation of the Band’s application, the BIA

sent a letter to the City of St. George on August 1, 1994,

informing it that the Band was in negotiations to pur-

chase the properties, which were identified by location

and tax identification numbers, and asking whether the

City supported the Band’s endeavor. Pet. App. 4. The

City did not respond to the BIA’s letter. /bid.° The BIA

Regional Director concluded that, “since no response

was received from the City” to the August 1 letter,

“there would be no adverse impact on the local govern-

ment” from the acquisition. /d. at 101. After the BIA

- eompleted an environmental assessment of the Band’s

proposal to lease the parcels to Kunz, it issued a Finding

of No Significant Impact on August 31, 1995. Jd. at 5.

On the same day, the BIA approved the Band’s request

that the property be accepted into trust. /bid. The

Band and Kunz then signed twenty-year leases authoriz-

ing Kunz to erect and maintain five billboards on the

trust lands, which the BIA approved. /d. at 5, 51.

On October 25, 1995, the Utah Attorney General’s

office, on behalf of the Utah Department of Transporta-

tion, threatened to bring criminal charges against Kunz

if it did not cease construction of the billboards. Pet.

App. 6. On November 3, 1995, the City issued a stop-

* Although the regulations in force at the time of the Band's

purchase—unlike those in place today, see note 2, supra—did not

require notice to state or local authorities, the BIA did provide notice

to the City in this case. The notice by letter on August 1, had, in fact,

been preceded by informal oral notice to the City Manager on July 7,

1994, Pet. App. 4. The City Manager indicated at that time that the

City would not provide a letter in support of the application. /bid.

work order purporting to forbid Kunz from erecting the

billboards. /bid.

3. In response to the State and City’s actions, the

Band and Kunz filed suit against the State of Utah, the

Utah Department of Transportation, and the City of St.

George in the United States District Court for the Dis-

trict of Utah on November 17, 1995, seeking injunctive

and declaratory relief. Pet. App. 6. On February 7,

1996, the district court entered a preliminary injunction

barring petitioners from interfering with the construc-

tion of the billboards. /d. at 7 n.3.

Petitioners filed counter-claims against the Band and

Kunz and third-party claims against the Secretary and

other Department of the Interior officials and the BIA.

Among other claims, petitioners sought a declaration

that Section 465 is an unconstitutional delegation of Con-

gress’s legislative authority. Pet. App. 6-7.

On cross-motions for summary judgment, the district

court rejected petitioners’ constitutional challenge. Pet.

App. 64. The court noted that the Tenth Circuit had

squarely rejected the nondelegation argument in United

States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999),

cert. denied, 529 U.S. 1108 (2000), holding that Congress

had placed limits on the Secretary’s discretion by pro-

viding ascertainable standards against which a review-

ing court could test the Secretary’s exercise of that au-

thority. Pet. App. 64. The court did, however, hold that

the Secretary had violated the National Environmental

Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., by

failing to prepare an environmental assessment of the

decision to accept the land into trust, separate and apart

from the environmental assessment prepared (before

the land was taken into trust) with respect to the pro-

posed lease agreements between the Band and Kunz.

Pet. App. 64-78. The court held that the decision to take

the land into trust was therefore invalid and ordered the

BIA to undertake an environmental assessment of the

acquisition decision. Jd. at 78. Because the court be-

lieved that the government’s sovereign immunity de-

fense, discussed below, did not apply to petitioners’

NEPA claim, it did not address that issue. Jd. at 62 n.7.

Petitioners asked the court to vacate its opinion and

renewed their motion for summary judgment. The fed-

eral respondents, in turn, renewed their argument that

the United States’ sovereign immunity barred petition-

ers’ claims, including those under NEPA, that chal-

lenged the Secretary’s decision to take title to the prop-

erty in trust for the Band. App., infra, 2a, 8a. In an

opinion dated February 6, 2002, the district court agreed

with the federal respondents that “[t]he Indian lands

exception to the [Quiet Title Act, 28 U.S.C. 2409a(a)

(QTA)] bars the State’s claim in this case even though

the State claims the right to regulate the lands in ques-

tion, because * * * underlying the State’s claim is a

challenge to the government’s title to the land.” App.,

infra, lla. Yet, despite that conclusion, the court held

that “under the APA, the decision by the BIA to accept

the land in trust is subject to judicial review under

NEPA,” id. at 13a, and it deferred consideration of peti-

tioners’ other claims until the NEPA process had been

completed. /d. at 14a-1ida. 2

After the NEPA review was finished, the BIA deter-

mined that it would neither remove the land from trust

status nor deny approval of the billboard leases. Pet.

App. 45. After the BIA had issued its final determina-

tion, the district court ruled on the parties’ cross-mo-

tions for summary iudgment. /d. at 40-56. The court

held that the parcels were Indian country within the

meaning of 18 U.S.C. 1151, Pet. App. 45, and that there

was no basis upon which the petitioners could regulate

the use of the tribal trust land for outdoor advertising,

id. at 45-55. The court therefore granted summary

judgment in favor of respondents. /d. at 55.

4. The court of appeals affirmed. Pet. App. 1-39.

The court first rejected petitioners’ argument that Sec-

tion 465 is an unconstitutional delegation of legislative

authority. The court adhered to its decision in Roberts

that Section 465 “itself places limits on the Secretary’s

discretion,” including the requirement that lands be ac-

quired for Indians as defined by Congress, the prohibi-

tion against acquiring land for Navajos outside their

reservations, and the overarching statutory purposes,

identified in the legislative history, of “rehabilitating the

Indian’s economic life and developing the initiative de-

stroyed by... oppression and paternalism of the prior

allotment policy.” /d. at 11-12 (quoting Roberts, 185

F.3d at 1137) (internal quotation marks omitted).

The court of appeals rejected petitioners’ argument

that this Court’s decision in Whitman v. American

Trucking Ass’ns, 531 U.S. 457 (2001), required that Rob-

erts be reconsidered. Pet. App. 13-14. Although the

court agreed that Whitman makes clear that an agency

cannot cure an unconstitutional delegation of power by

declining to exercise some of its delegated authority, id.

at 13, the court of appeals held that Section 465 does not

violate that principle because “the statute itself provides

standards for the Secretary’s exercise of discretion,” id.

at 12 (quoting Roberts, 185 F.3d at 1136 n.8).

The court of appeals went on to hold that, “[iJn light

of the QTA’s Indian trust land exemption,” the district

court “lacked subject matter jurisdiction over [petition-

er's’] counterclaim and third-party claim to the extent it

sought to challenge the BIA’s decision to take the prop-

erty at issue into trust for the Band,” and that the dis-

trict court had therefore erred in considering peti-

tioner’s NEPA challenge to the land acquisition. Pet.

App. 18.

Finally, the court rejected petitioners’ claim that,

assuming the validity of the Secretary’s acquisition of

the land in trust for the Band, the State and City could

still assert regulatory authority over the placement of

billboards on the land. Congress had not, the court held,

authorized the State to regulate outdoor advertising on

Indian trust land pursuant to the Highway Beautifica-

tion Act of 1965, 23 U.S.C. 131(h). Pet. App. 27-28. Nor

did the State possess inherent authority to regulate the

maintenance of billboards in Indian country. Consider-

ing the interests of petitioners and those of respondents,

id. at 29 (citing New Mexico v. Mescalero Apache Tribe,

462 U.S. 324, 334 (1983)), the court found that “there are

significant federal interests at play here,” whereas “the

State has failed * * * to establish that its interests in

regulating the land are substantial,” id. at 30, 32. The

court stressed that the Band’s other sources of revenue

were “not adequate . .. to properly operate functions of,

or provide economic development for, the Band,” that

“the Band’s income from the leases of the parcels at is-

sue now constitutes its greatest source of revenue,” and

that the Band would have freedom at the end of the

lease terms to develop the property for economic use,

including possibly “for housing by Band members, the

majority of whom, at the present, are forced to live off-

reservation.” /d. at 31 (internal quotation marks omit-

ted).

Judge Lucero concurred in the panel’s opinion, but

wrote separately to add a discussion concerning the ap-

plication of the Highway Beautification Act to Indian

lands. Pet. App. 34-39.

ARGUMENT

Tne court of appeals’ decision is correct and does not

conflict with any decision of this Court or any other

court of appeals. Moreover, as discussed below, see pp.

20-22, infra, this case presents a threshold jurisdictional

obstacle that would prevent the Court from reaching the

question on which petitioners seek review. Further re-

view by this Court is therefore unwarranted.

1. Notably, petitioners do not contend that review by

this Court is necessary to resolve a conflict among the

courts of appeals. Rather, as petitioners concede (Pet.

11-12), each of the courts of appeals that has considered

a constitutional challenge to Section 465 on nondelega-

tion grounds has rejected that argument. See Pet. App.

9-14; South Dakota v. United States Dep’t of the Inte-

rior, 423 F.3d 790, 795-799 (8th Cir. 2005) (South Da-

kota II), petition for cert. pending, No. 05-1428 (filed

May 8, 2006); Carcieri v. Norton, 2005 WL 2216322, **8-

**9 (1st Cir. Sept. 13, 2005); United States v. Roberts,

185 F.3d 1125, 1137 (10th Cir. 1999), cert. denied, 529

U.S. 1108 (2000); Confederated Tribes of Siletz Indians

v. United States, 110 F.3d 688, 694, 698 (9th Cir.), cert.

denied, 522 U.S. 1027 (1997).'

* The First Circuit panel’s amended opinion in Carcieri was orig-

inally reported at 423 F.3d 45. Appellants filed a petition for rehearing

en bane on November 7, 2005, which did not raise the nondelegation

issue. The court thereafter requested that the opinion be withdrawn

from the bound volume of the Federal Reporter. The editor’s note at

423 F.3d 46-72 makes clear, however, that the decision has not been

vacated or withdrawn. To date, the court has taken no action on the

petition for rehearing en banc. See No. 03-2647 Docket.

[eontinued ... |

Nor is the issue presented one of urgent importance.

To the contrary, the statutory provision that petitioners

seek to have invalidated was enacted nearly seventy

years ago. For seven decades, Section 465 has provided

the primary mechanism for the federal government to

restore and replace tribal lands, which Congress con-

cluded was crucial to promote tribal self-government

and economic self-sufficiency. See pp. 16-19, infra.

Congress has, moreover, revisited and amended the IRA

on numerous occasions, including subse »ent to the Sec-

retary’s promulgation of land-acquisition regulations,

without expressing any disagreement with the Secre-

tary’s understanding of the statutory policies that guide

his land-acquisition policies.’ In fact, this Court has re-

marked that “Section 465 provides the proper avenue”

for a Tribe “to reestablish sovereign authority over

[lost] territory.” City of Sherrill v. Oneida Indian Na-

Petitioners observe (Pet. 7-8) that a divided panel of the Eighth

Circuit had upheld a nondelegation challenge to Section 465 in South

Dakota v. United States Dep't of the Interior, 69 F.3d 878 (1995) (South

Dakota 1). This Court, however, vacated the panel’s decision in South

Dakota I, and remanded the matter to the Secretary of the Interior to

reconsider his administrative decision and to permit judicial review in

light of newly amended regulations. Department of the Interior v.

South Dakota, 519 U.S. 919 (1996). Accordingly, South Dakota I has no

precedential effect, see O'Connor v. Donaldson, 422 U.S. 563, 578 n.12

(1975) (“Of necessity our decision vacating the judgment of the Court

of Appeals deprives that court’s opinion of precedential effect.”), and

the Eighth Circuit has itself repudiated its reasoning, see South Dakota

IT, 423 F.3d at 796-797.

* See Indian Reorganization Act Amendments of 1994, Pub. L. No.

103-263, § 5(b), 108 Stat. 709; Indian Reorganization Act Amendments

of 1990, Pub. L. No. 101-301, § 3(b)-(¢), 104 Stat. 207; Indian Reorgani-

zation Act Amendments of 1988, Pub. L. No. 100-581, Tit. I, § 101, 102

Stat. 2938; see also Indian Land Consolidation Act, 25 U.S.C. 2201 et

seq. (extending the reach of Section 465 to all Tribes).

tion, 544 U.S. 197, 22] (2005). See also Cass County v.

Leech Lake Band of Chippewa Indians, 524 U.S. 103,

114-115 (1998).

The Court previously declined to grant review on the

delegation issue in Roberts, which the Tenth Circuit fol-

lowed in this case, and the same disposition is warranted

in this case as well.

2. Despite the uniform appellate decisions upholding

the constitutionality of Section 465, petitioners urge

(Pet. 11-16) that the Court should grant a writ of certio-

rari to review the court of appeals’ application of this

Court’s decisions in Whitman v. American Trucking

Ass’ns, 581 U.S. 457 (2001), and Mistretta v. United

States, 488 U.S. 361 (1989). The court of appeals’ appli-

cation to a particular statute of well-settled principles

regarding the conferral of authority on the Executive

Branch does not warrant this Court’s review. In any

event, contrary to petitioners’ contentions, the courts of

appeals have carefully considered and correctly applied

this Court’s nondelegation precedent.

a. It is well settled that “Congress does not violate

the Constitution merely because it legislates in broad

terms, leaving a certain degree of discretion to executive

or judicial actors.” Touby v. United States, 500 U.S.

160, 165 (1991). It is “constitutionally sufficient if Con-

gress clearly delineates the general policy, the public

agency which is to apply it, and the boundaries of this

delegated authority.” Mistretta, 488 U.S. at 372-373

(quoting American Power & Light Co. v. SEC, 329 U.S.

90, 105 (1946)). Accord Whitman, 531 U.S. at 472 (quot-

ing J.W. Hampton, Jr., & Co. v. United States, 276 U.S.

394, 409 (1928)) (Congress must “lay down by legislative

act an intelligible principle to which the person or body

authorized to [act] is directed to conform.”).

Although “in 1935 [the Court] struck down two dele-

gations for lack of an intelligible principle,” the Court

has “since upheld, without exception, delegations under

standards phrased in sweeping terms.” Loving v. United

States, 517 U.S. 748, 771 (1996); see, e.g., Lichter v.

United States, 334 U.S. 742, 778-786 (1948) (upholding

a statute authorizing the War Department to recover

“excessive profits” earned on military contracts); Yakus

v. United States, 321 U.S. 414, 420-427 (1944) (upholding

a statute authorizing the Price Administrator to set

prices that are “generally fair and equitable and will

effectuate the purposes of [the Emergency Price Con-

trol] Act”); National Broadcasting Co. v. United States,

319 U.S. 190 (1943) (upholding a statute authorizing the

Federal Communications Commission to regulate broad-

casting according to the “public interest, convenience, or

necessity”).

In Whitman itself, this Court reversed the court of

appeals’ determination that the Clean Air Act, 42 U.S.C.

7409(b)(1), unconstitutionally delegated Congress’s leg-

islative power to the Environmental Protection Agency

to set national air quality standards. 531 U.S. at 472.

The Court emphasized that “{iJn the history of the Court

[it has] found the requisite ‘intelligible principle’ lacking

in only two statutes,” and that it had “almost never felt

qualified to second-guess Congress regarding the per-

missible degree of policy judgment that can be left to

those executing or applying the law.” Jd. at 474-475

(quoting M?stretta, 488 U.S. at 416 (Scalia, J., dissent-

ing), and citing id. at 373 (majority opinion)). The Court

noted that “the degree of agency discretion that is ac-

ceptable varies according to the scope of the power con-

gressionally conferred,” and that in the two statutes

struck down on nondelegation grounds, one “provided

literally no guidance for the exercise of discretion,” and

the other “conferred authority to regulate the entire

economy on the basis of no more precise a standard than

stimulating the economy by assuring ‘fair competition.”

Id. at 474, 475 (citing Panama Refining Co. v. Ryan,

293 U.S. 388 (1935), and A.L.A. Schechter Poultry Corp.

v. United States, 295 U.S. 495 (1935)). The Court

stressed that it had never required “that statutes_pro-

vide a determinate criterion for saying how much of the

regulated harm is too much.” /d. at 475 (internal quota-

tion marks and alteration omitted).

b. The courts of appeals have correctly (and uni-

formly) held 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” to withstand con-

stitutional challenge. South Dakota I], 423 F.3d at 797.

Section 465 itself contains a number of express indi-

cations of Congress’s policy. That section states that the

purpose of the Secretary’s land-acquisition authority is

“providing land for Indians,” which is a narrow group of

individuals defined in 25 U.S.C. 479. See 25 U.S.C. 465.

Section 465 provides a limited amount of federal funds

to be used for the purpose and expressly forbids the use

of those funds to acquire land for Navajo Indians outside

of their established reservation boundaries. /bid. Fi-

nally, Section 465 specifies that lands taken into trust

“shall be exempt from State and local taxation.” /bid.

In addition to the text of Section 465 itself, the

boundaries of the Secretary’s delegated authority to

acquire land in trust for Indians may be discerned from

the purposes of the IRA as a whole, its factual back-

ground, and the statutory context. American Power &

Light, 329 U.S. at 104; Lichter, 334 U.S. at 785. Con-

gress enacted the IRA to promote Indian self-govern-

ment and economic self-sufficiency. See Mescalero

Apache Tribe v. Jones, 411 U.S. 145, 152-154 (1973)

(“The intent and purpose of the Reorganization Act was

‘to rehabilitate the Indian’s economic life and to give him

a chance to develop the initiative destroyed by a century

of oppression and paternalism.’”) (quoting H.R. Rep.

No. 1804, 73d Cong., 2d Sess. 6 (1934)); accord Morton

v. Mancari, 417 U.S. 535, 542 (1974). Congress was par-

ticularly concerned with reversing the “disastrous” con-

sequences of the Indian General Allotment Act of 1887,

ch. 119, 24 Stat. 388, which had eroded the tribal land

base and weakened tribal organizations. Hagen v. Utah,

510 U.S. 399, 425 & n.5 (1994). Congress identified

“eonservi[ing] and develop[ing] Indian lands and re-

sources” as one of the purposes of the IRA. 48 Stat. 984.

' Accordingly, the IRA expressly repudiates the allot-

ment policy, 25 U.S.C. 461, and contains several provi-

sions designed to preserve and expand tribal lands. 25

U.S.C. 462, 463(a), 464, 465. Other provisions of the IRA

likewise reflect Congress’s policy of promoting the eco-

nomic development and self-governance of the Indian

Tribes. 25 U.S.C. 469, 470, 471, 472, 476, 477. The au-

thority under Section 465 to acquire land in trust is in-

tended to further those purposes.

The IRA’s legislative history confirms the congres-

sional purpose that is evident from the text. As the

Eighth Circuit observed in South Dakota II, the re-

peated references in the House and Senate Reports as

well as floor debates to the goal of providing land to

“Indian individuals and tribes whose land holdings are

insufficient for self-support,” 423 F.3d at 798 (quoting S.

Rep. No. 1080, 73d Cong., 2d Sess. 2 (1934)), reflect that

“Congress placed primary emphasis on the needs of in-

dividuals and tribes for land and the likelihood that the

land would be beneficially used to increase Indian self-

support,” ibid.°

The purposes of the IRA as reflected in its text,

structure, context, and history provide the intelligible

principles that guide the Secretary in the exercise of his

authority under Section 465. The Secretary may acquire

land “for the purpose of providing land for Indians,”

within the intent of Section 465, when the acquisition

would serve such purposes as advancing tribal economic

development, assisting tribal self-governance, and re-

storing the ancestral tribal land base. Indeed, this

Court has often identified those policies as the Congres-

sional purposes that guide the Secretary’s application of

the IRA. See Mancari, 417 U.S. at 542 (“The overriding

purpose of [the IRA] was to establish machinery

whereby Indian tribes would be able to assume a greater

degree of self-government, both politically and economi-

cally.”); Mescalero Apache Tribe, 411 U.S. at 152 (“The

intent and purpose of the Reorganization Act was ‘to

rehabilitate the Indian’s economic life and to give him a

chance to develop the initiative destroyed by a century

of oppression and paternalism.’”) (quoting H.R. Rep.

No. 1804, supra, at 6); see also Washington v. Confeder-

ated Tribes of the Colville Indian Reservation, 447 U.S.

* As they did in the court below, petitioners assert that this Court’s

decision in Whitman “precludes resort to legislative history” for

determining whether a statute sufficiently guides the exercise of the

authority it delegates. Pet. 15. However, as the court of appeals

correctly observed (Pet. App. 13 n.4), Whitman does not address that

issue in any way, and this Court has repeatedly made clear that a

statute’s purpose, factual background, and context are properly

considered in determining whether a statute meets this test. See, ¢.g.,

American Power & Light, 329 U.S. at 104; Lichter, 334 U.S. at 778-779.

134, 168 (1980) (Brennan, J., concurring in part and dis-

senting in part) (noting that the IRA reflects both the

“policy of encouraging tribal self-government” and the

“complementary interest in stimulating Indian economic

and commercial development”).

Consistent with this long-established focus of the

IRA, the Secretary has recognized that Section 465 does

not confer boundless discretion. For example, in adopt-

ing a regulatory statement of land-acquisition policy

under Section 465, the Secretary expressed his under-

standing that “(t]he policy * * * is withjn the scope of

existing statutory authority and * * **reflects Con-

gressional intent.” 45 Fed. Reg. 62,035 (1980). The Sec-

retary has, moreover identified through regulation the

specific factors, derived from the purposes of the IRA

and the Secretary’s experience in administering it, that

guide his decisions to take lands into trust for Tribes

and individual Indians. See 25 C.F.R. Pt. 151.’ By set-

ting out ascertainable standards that govern trust acqui-

sition decisions, the Secretary has not only observed,

but has given concrete expression to, the limiting princi-

ples in the IRA. Cf. Lichter, 334 U.S. at 783 (recogniz-

’ As discussed above, see p. 5 supra, the regulations set forth a

“Land acquisition policy,” 25 C.F.R. 151.3, which provides for acquisi-

tions in three circumstances: when the land is within or adjacent to an

existing reservation, when the land is already owned by the Tribe, or

when “the acquisition of the land is necessary to facilitate tribal self-

determination, economic development, or Indian housing.” 25 C.F.R.

151.3(a)(1)-(3). The regulations then set forth particular factors to

guide the Secretary’s decision whether to acquire such land, including

“(t]he need of the individual Indian or the tribe for additional land” (25

C.F.R. 151.10(b)), “(t]he purposes for which the land will be used” (25

C.F.R. 151.10(¢)), and, if the land is outside a reservation and is to be

used for a tribal business purpose, “the anticipated economic benefits

associated with the proposed use” (25 C.F.R. 151.11(@)).

ing that subsequent “administrative practices” under a

statute may demonstrate the “definitive adequacy” of

the terms of the statutory authorization).

Moreover, in an area in which the Executive has his-

torically exercised expansive authority, such as the su-

pervision of lands occupied by Indians,* broader direc-

tives are especially appropriate. Cf. Whitman, 531 U.S.

at 475 (noting that “the degree of agency discretion that

is acceptable varies”); United States v. Curtiss-Wright

- Kap. Corp., 299 U.S. 304, 320 (1936) (recognizing that

Congress may accord to the President a greater degree

of discretion in the area of foreign affairs than would be

acceptable if only domestic affairs were involved);

United States v. Mazurie, 419 U.S. 544, 556-557 (1975)

(upholding a broad conferral of authority on various In-

dian Tribes to regulate the introduction of liquor into

Indian country on the ground that limitations on Con-

gress’s authority are “less stringent in cases where the

entity exercising the delegated authority itself possesses

independent authority over the subject matter”).

3. Even if the question on which petitioners seek

review otherwise warranted this Court’s consideration,

this case would not present a good vehicle by which to do

so. As the court of appeals held, “{i]n light of the QTA’s

Indian trust lands exemption, * * * the district court

in this case lacked subject matter jurisdiction over

* * * [petitioners’ third-party complaint] to the extent

it sought to challenge the BIA’s decision to take the

property at issue into trust for the Band.” Pet. App. 18.

Although the court of appeals did not apply its jurisdic-

® See, e.g., United States v. Mitchell, 463 U.S. 206, 209 (1983);

Central Mach. Co. v. Arizona State Tax Comm’n, 448 U.S. 160, 163

(1980); United States v. Jackson, 280 U.S. 183, 191 (1930); United

States v. Hitchcock, 205 U.S. 80, 85 (1907).

tional holding to petitioners’ claim that the Secretary’s

statutory authority to take the property into trust was

itself unconstitutional, the court’s reasoning encom-

passes petitioners’ constitutional challenge to Section

465 and would prevent this Court from reaching the con-

stitutional question on which petitioners seek review.

This Court has recognized that the provision of the

QTA that prohibits suits that challenge the United

States’ title in lands held in trust for Indians, 28 U.S.C.

2409a(a), may bar a claim even if the plaintiff does not

characterize it as one brought under the QTA. United

States v. Mottaz, 476 U.S. 834, 841-842 (1986); Block v.

North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461

U.S. 278, 284-285 (1983). Several circuits, including the

court of appeals in this case, have held that the Indian

lands exception bars claims that are purportedly

brought under the Administrative Procedure Act (APA),

- 5 U.S.C. 551 et seq., but would have the effect of declar-

ing a completed acquisition of lands in trust for Indians

to be void. See Pet. App. 18-19; Neighbors for Rational

Dev., Inc. v. Norton, 379 F.3d 956, 961-962 (10th Cir.

2004) (QTA barred APA action challenging Secretary’s

acquisition of land in trust under Section 465 as violating

NEPA); Alaska v. Babbitt, 75 F.3d 449, 452-453 (9th Cir.

1995) (QTA barred APA claim that Bureau of Land Man-

agement’s approval of Indian’s allotment under 43

U.S.C. 270-1 to 270-3 (1970) (repealed 1971), was ultra

vires), cert. denied, 519 U.S. 818 (1996); Florida v.

United States Dep't of the Interior, 768 F.2d 1248, 1250,

1254-1255 (11th Cir. 1985) (QTA barred APA challenge

to the acquisition of land in trust for the Seminole Tribe

as violating regulatory standards), cert. denied, 475 U.S.

1011 (1986). See also Shawnee Trail Conservancy v.

United States Dep't of Agric., 222 F.3d 383, 388 (7th Cir.

2000) (plaintiffs’ constitutional and statutory challenge

to the Forest Service’s authority to restrict the use of

certain roads that plaintiffs claimed were subject to pub-

lic rights of way could only be brought pursuant to the

QTA), cert. denied, 531 U.S. 1074 (2001). —

The jurisdictional question whether the QTA bars

any claim that challenges the Secretary’s authority to

acquire title to the land here in question does not itself

warrant this Court’s consideration. That threshold

question should not arise in future cases in which parties

seek to challenge the Secretary’s acquisition of land pur-

suant to Section 465. The land acquisition at issue in

this case proceeded pursuant to the 1994 version of the

regulations. As noted above, see note 2, supra, the Sec-

retary amended the governing regulations in 1995 and

again in 1996. The present regulations require that no-

tice of proposed land acquisitions be sent to state and

local authorities to provide them an opportunity to com-

ment on the acquisition’s potential impacts before the

Secretary makes his determination. 25 C.F.R. 151.10,

151.11(d). The regulations also provide a thirty-day pe-

riod between publication of the Secretary’s decision to

take land into trust and when the United States takes

title to any property, so that a state or local government,

like petitioners, may challenge the Secretary’s decision

in court without the obstacle of the QTA. 25 C.F.R.

151.12(b); 61 Fed. Reg. at 18,082.

We are informed by the Department of the Interior

that this is the only pending case challenging a land ac-

quisition that preceded the 1995 and 1996 amendments

to the regulations. Because the threshold jurisdictional

question would likely prevent the Court from reaching

the question on which petitioners seek review, and can-

not be expected to arise with any frequency in the fu-

ture, this case represents a poor vehicle for this Court to

resolve the question presented by petitioners, even if

that question otherwise warranted review.

4. Petitioners’ assertion (Pet. 17) that the Secre-

tary’s authority under Section 465 to acquire land in

trust for Indians “imposes significant hardships on state

and local governments nationwide” provides no basis for

granting the petition.

Petitioners contend that the taking of property in

trust for Indians limits the ability of state and local gov-

ernments to “enforce needed land use and development

restrictions uniformly,” Pet. 19, leads to a loss of tax

revenues, ibid., and exacerbates “tensions between state

and local governments on the one hand and tribes and

the BIA on the other,” Pet. 21. Those arguments have

nothing to do with petitioners’ constitutional claim that

Section 465 lacks an “intelligible principle” to guide the

Secretary’s exercise of his authority under Section 465.

Rather, petitioners’ arguments represent a disagree-

ment with the IRA’s conceded policy of promoting tribal

self-sufficiency and sovereignty, including Congress’s

explicit policy determination to allow the Secretary to

take into trust land “within or without existing reserva-

tions” and that “such lands or rights shall be exempt

from State and local taxation.” 25 U.S.C. 465; see Rice

v. Olson, 324 U.S. 786, 789 (1945) (“The policy of leaving

Indians free from state jurisdiction and control is deeply

rooted in the Nation’s history.”).

Moreover, petitioners ignore that the Secretary’s

regulations address the very concerns they raise here.

See City of Sherrili, 544 U.S. at 220-221 (“The regula-

tions implementing [Section] 465 are sensitive to the

complex interjurisdictional concerns that arise when a

tribe seeks to regain sovereign control over territory.”).

The regulations direct the BIA, when deciding whether

to approve a request that it accept land into trust, to

consider any “{jlurisdictional problems and potential

conflicts of land use which may arise.” 25 C.F.R.

151.10(f). Similarly, when, as was true in this case, the

land to be acquired is held in unrestricted fee status, the

BIA considers “the impact on the State and its political

subdivisions resulting from the removal of the land from

the tax rolls,” 25 C.F.R. 151.10(e), as well as whether the

BIA “is equipped to discharge the additional responsi-

bilities resulting from the acquisition of the land in trust

status,” 25 C.F.R. 151.10(g).

Indeed, although petitioners make repeated refer-

ences to what they view as the Secretary’s “abuse” of his

statutory authority in granting the Band’s application to

take the land into trust and approving the billboard

leases, see Pet. 10-11, 17-19, 21, it is notable that peti-

tioners made the strategic decision not to pursue their

claim that the trust acquisition in this case violated the

statutory and regulatory standards established in 25

U.S.C. 465 and 25 C.F.R. Pt. 151 (1995). In petitioners’

initial complaint, they asserted, as their seventh cause

of action, a claim that the “BIA has failed to comply with

the requirements of the IRA * * * and the regulations

applicable thereunder in accepting the lands into trust

on behalf of the Shivwits band.” Answer, Countercl. &

Third-Party Claim para. 62. In their amended third-

party claim, however, petitioners omitted that claim and

inserted a new seventh cause of action under the Endan-

gered Species Act of 1973, 16 U.S.C. 1536(a)(2) and (3).

See First Amended Answer, Countercl. & Third-Party

Claim paras. 61-67. In light of the fact that petitioners

abandoned the legal theory by which they could have

challenged directly the merits of the Secretary’s applica-

tion of Section 465, petitioners’ claim that only a decla-

ration that the statute is unconstitutional can remedy

the Secretary’s supposed excesses rings hollow.

In any event, as the district court and court of ap-

peals each held in addressing a separate argument

raised by petitioners, the Secretary’s decision to take

the land into trust did, in fact, serve Congress’s pur-

poses in adopting the IRA. Pet. App. 31; id. at 50-52.

“(T]he Band’s income from the leases of the parcels at -

issue now constitutes its greatest source of revenue,” 2d.

at 31, in what is a “meager revenue stream,” id. at 3.

Most importantly, the arrangement will allow the impov-

erished Band, after the twenty-year leases, to own prop-

erty in a rapidly developing area where it can be put to

use for greater economic purposes or to meet pressing

housing needs. Jd. at 31. The arrangement approved by

the Secretary, which the lower courts found to be “of

vital economic importance to the Shivwits,” id. at 54, is

entirely consistent with the purposes that the IRA was

intended to serve.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

SUE ELLEN WOOLDRIDGE

Assistant Attorney General

ELLEN J. DURKEE

MATTHEW J. SANDERS

Attorneys

JUNE 2006

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

No. 2:95CV 1025C

SHIVWITS BAND OF PAIUTE INDIANS; AND KUNZ &

COMPANY D.B.A. KUNZ OUTDOOR ADVERTISING,

A CALIFORNIA CORPORATION, PLAINTIFFS AND

COUNTER-CLAIM DEFENDANTS

STATE OF UTAH, UTAH STATE DEPARTMENT OF

TRANSPORTATION, AND ST. GEORGE CITY, A UTAH

MUNICIPAL CORPORATION, DEFENDANTS AND

COUNTER-CLAIM AND THIRD-PARTY PLAINTIFFS

vz.

BRUCE BABBITT, IN HIS CAPACITY AS SECRETARY OF

THE UNITED STATES DEPARTMENT OF THE INTERIOR;

ADA DEER, IN HER CAPACITY AS ASSISTANT

SECRETARY OF INDIAN AFFAIRS; WALTER R. MILLS,

IN HIS CAPACITY AS AREA DIRECTOR OF THE BUREAU

OF INDIAN AFFAIRS; AND THE BUREAU OF INDIAN

AFFAIRS, THIRD-PARTY DEFENDANTS

Feb. 6, 2002

(1a)

ORDER

CAMPBELL, District Judge.

This matter is before the court on Defendants’ mo-

tions to vacate order of preliminary injunction and for

summary judgment. The court held a hearing on these

motions on October 24, 2001. Defendants currently

move to vacate this court’s earlier preliminary injunc-

tion order, which prevented them from regulating the

use of the land at issue in this suit. They also seek

summary judgment on the question of State and local

land regulation, arguing that the land is neither held in

trust for the tribe nor that it is “Indian Country,” either

of which designation could prohibit State regulation.

For the reasons discussed below, Defendants’ motions

to vacate and for summary judgment are DENIED.

Background

The relevant material facts to the underlying dispute

in this matter remain unchanged from those before the

court when it issued its August 11, 2000 order. This

case involves the purchase and subsequent leasing of

property adjacent to Interstate Highway 15 within the

St. George, Utah limits (“subject property”). On July

16, 1993, Plaintiff Kunz and Company, doing business as

Kunz Outdoor Advertising (“Kunz”), contacted Plaintiff

Shivwits Band of Paiute Indians (“Shivwits”) and pro-

posed a business venture (Kunz and Shivwits are here-

inafter collectively referred to as “Plaintiffs”). Kunz

proposed that the Shivwits purchase the subject prop-

erty with money furnished by Kunz. In exchange, the

Shivwits would agree to lease the subject property

back to Kunz on favorable terms.’ The Shivwits agreed

to the proposal, were advanced money by Kunz, and

bought two pieces of land on August 9, 1994. The land

is located in Defendant St. George City, which is a long

distance from the Shivwits Reservation. There is no

activity on the land other than the outdoor advertising.

On the same day, August 9, 1994, the Shivwits con-

veyed, by Special Warranty Deed, the subject property

to the United States to be held in trust for the Shivwits.

(See Special Warranty Deed, attached as Ex. B to the

Complaint.) The United States therefore holds title to

the land by virtue of this deed.

An off-reservation trust acquisition, like the one at

issue here, however, must be approved by the Depart-

ment of the Interior. On May 10, 1995, Shivwits,

through the Bureau of Indian Affairs (“BIA”), submit-

ted the necessary administrative documents for ap-

proval of the trust acquisition. The request that the

property be accepted in trust was approved on August

31, 1995, by the local office of the BIA. Following ac-

ceptance of the subject property in trust, the parties

entered into five separate leases covering the subject

property. After an environmental assessment of the

proposal as required by the National Environmental

Policy Act of 1969, 42 U.S.C. § 4832 (“NEPA”), which

concluded with a Finding of No Significant Impact

(“FONSI”), the Secretary of Interior approved the

lease arrangement on September 11, 1995.*

| The lease transaction involves no payment to the Shivwits for

fifteen (15) years and small ($2,500 per year) payments for the next

five years.

* The approval of the Secretary of the Interior of the lease ar-

rangement was necessary to give the leases effect. See 25 U.S.C.

§ 415.

No one disputes that under State (Utah Outdoor Ad-

vertising Act, Utah Code Ann. § 27-12-136.1)’ and local

law (a St. George ordinance, St. George City Code, Title

9, chapter 8), the placement of billboards on the subject

property would be unlawful. Plaintiffs argue that the

billboards are exempt from these laws because the sub-

ject property is being held by the United States in trust

for the Shivwits.

On October 25, 1995, the Utah Attorney General’s of-

fice, on behalf of the Utah Department of Transporta-

tion (“UDOT”), threatened criminal suit against Kunz if

construction of the signs did not immediately cease.

Kunz ignored the warning and continued construction.

On November 3, 1995, St. George City issued a stop

work order, forbidding Kunz from further construction

of the signs on the ground that it violated city and State

outdoor advertising regulations and Kunz had no city or

State sign permits. On November 17, 1995,~Plaintiffs

jointly sued for declaratory judgment and preliminary

and permanent injunctive relief against the State of

Utah, the Utah State Department of Transportation,

and the City of St. George (collectively referred to

herein as “Defendants”). On November 22, 1995, De-

fendants jointly filed an Answer, Counterclaim and

3 The statute designates certain areas where outdoor adver-

tising may be placed, and the proposed location does not meet the

requirements of any of those exceptions. In addition, the signs vio-

late State law because Plaintiffs lack a valid State permit as re-

quired by Utah Code Ann. § 27-12-136.7(1). The placement or

maintenance of the signs would be a criminal misdemeanor under

Utah Code Ann. § 27-12-136.12.

4 St. George Code $§ 9-8-4(B)(4) and 9-8-2(Q) govern off-

premise signs. The Plaintiffs’ signs violate these Code sections in

that they violate spacing requirements and would not meet any of

the exceptions for allowance of signs.

Third-Party Claim against the Shivwits, Kunz, and the

United States. The counterclaim and third-party claim

allege that 25 U.S.C. § 465, the statute authorizing land

acquisitions, is unconstitutional, the taking of the land

in trust and the approval of the lease was wrongly ac-

complished, and that the land is subject to State and

local regulations.

This court issued a preliminary injunction, dated.

February 7, 1996, which prohibited the Defendants

from imposing any stop work order or otherwise inter-

fering with the construction or use of the billboards.

Protected by this injunction, Kunz erected five large

billboards on the subject property and the billboard

space has been leased by Kunz to various advertisers.

The billboards continue to be used by Kunz. Subse-

quent to the preliminary injunction order, the court is-

sued an order on August 11, 2000, which held that 25

U.S.C. § 465 is, in fact, constitutional, but also held that

the BIA had failed to follow the procedural requirement

of NEPA before making the decision to hold the land in

trust. That order did not affect the fact that the gov-

ernment held the land in trust by special warranty

deed, but it did invalidate the agency’s decision to take

the land in trust until the BIA complied with the proce-

dural requirements of NEPA.

The Defendants’ present motions to vacate prelimi-

nary injunction and for summary judgement are based

on an argument that the billboards should not have

been there to begin with for two alternative reasons: 1)

that the court’s August 11, 2000 order invalidated any

trust relationship regarding the land, de facto and de

qure, and that therefore the Shivwits hold the land as

any other entity (rather than the government holding it

in trust for the Shivwits) and that therefore the State’s

and local municipalities’ zoning and land use restrictions

apply; and 2) that even if the court finds that the gov-

ernment holds the land in trust, the land is not “Indian

Country” and therefore State and local land use restric-

tions apply.

Regarding the first ground for summary judgment

outlined above, because the Indian Lands exemption in

Quiet Title Act, 28 U.S.C. § 2409a(a) (““QTA”), applies,

the government is immune from questions to the title

presently at issue. Regarding the second ground for

summary judgement argued by the Defendants, the is-

sue as presently postured is not ripe because the BIA

has not completed the NEPA process as was mandated

the August 11, 2000 order, and therefore there is no fi-

nal agency decision which settles the status of the land

at issue. As discussed below, the court may not rule on

the merits of the second argument supporting summary

judgement because those issues are not ripe and doing

so would be to render an advisory opinion, which the

United States Constitution prohibits.

Analysis

A. Does the Quiet Title Act Prohibit Judicial Review,

thereby Suggesting that the Matter be Deferred Un-

til the Presently Ongoing NEPA Process is Com-

plete?

The initial question posed by Defendants’ motions is:

what effect, if any, did the court’s August 11, 2000 order

have on the title already possessed by the government

by virtue of the special warranty deed? The answer to

this question is: “none.” This answer results from the

distinction between two government actions present

here, both of which have direct bearing on this matter:

1) the government holding title to Indian lands (which

it already does in this case de facto by virtue of the spe-

cial warranty deed); and 2) the agencys’ (the BIA and

the Department of Interior) action of approving the

trust application. The latter action requires that the

agency undertake the NEPA process as the August 11,

2000 order mandated; the former is not subject to judi-

cial review because the Indian lands exemption of the

QTA renders the government immune from suit from

third parties (here, the Defendants) who challenge the

government’s title to Indian lands.

There is one glaring fact in this case: right now, the

United States holds title to the land by warranty deed.

As far as the title issue goes, the Defendants’ argument

rests on the assumption that the transfer was invalid at

its inception because of the NEPA violation, and there-

fore the Shivwits, not the government, now hold title.

Implicitly, if not explicitly, then, the relief for which De-

fendants ask depends, in part, upon this court first qui-

eting title.

It is a well-established rule that the United States is

immune from suit unless Congress expressly waives

immunity. See United States v. Mitchell, 463 U.S. 206,

103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983); Amalgamated

Sugar Co. v. Bergland, 664 F.2d 818 (10th Cir. 1981).

Although the Defendants filed their claims against the

Secretary of the Interior and his agents, in their official

capacities, the claims truly run against the United

States because Defendants’ claim rests on a title de-

termination and the United States holds title by virtue

of the special warranty deed. The only statute cited by

the Defendants to support their claim that there has

been a waiver of sovereign immunity is the Administra-

tive Procedure Act, 5 U.S.C. § 702 (“APA”)? Although

the Government does not dispute that the APA gener-

ally waives sovereign immunity, the government ar-

gues that this general waiver of sovereign immunity is

superseded by the QTA, which preserves immunity in

the case of suits challenging the title to “trust or re-

stricted Indian lands” held by the United States.°

On the issue of immunity, both Plaintiffs and Defen-

dants are, in part, correct. The Defendants are correct

that the APA’s procedural protections apply here and

allow judicial review of the decision to approve the

taking of land into trust (which requires NEPA compli-

ance as recognized and mandated in the court’s August

11, 2000 order). But the government is correct that its

right to hold title in trust is unreviewable under the

QTA. Therefore, although the BIA must complete the

NEPA process, the title to the property remains with

the government in trust for Shivwits.

> In relevant part, 5 U.S.C. § 702 says:

An action {in federal court] seeking relief other than money

damages and stating a claim that an agency or an officer or

employee thereof acted or failed to act in an official capacity or

under color of legal authority, shall not be dismissed nor relief

therein be denied on the ground that it is against the United

States or that the United States is an indispensable party.

Id. (emphasis added).

6 In relevant part, 28 U.S.C. § 2409a(a) says:

The United States may be named as a party defendant in a

civil action under this section to adjudicate a disputed title to

real property in which the United States claims an interest,

other than a security interest or water rights. This section

does not apply to trust or restricted Indian lands. . . .

Id. (emphasis added).

The government correctly argues that this case is

similar to Florida Dept. of Business Regulation v.

Dept. of Interior, 768 F.2d 1248 (11th Cir. 1985), in

which the court found no waiver of immunity from suit.

In that case, an Indian tribe purchased certain lands

containing Indian burial remains with the purpose of

preserving the remains and establishing a museum.

The United States, as here, took the property into trust

by virtue of a deed. Along with the museum, the tribe

opened a smoke shop, selling cigarettes tax free to the

general public. The State of Florida sought to have

the trust decision overturned under the APA on the

grounds that the Secretary of the Interior had violated

that law by failing to follow the Department’s regula-

tions when acquiring the land in trust. The Eleventh

Circuit Court of Appeals upheld the dismissal on the

grounds that the district court lacked jurisdiction to

hear the case. The appellate court held that although

the suit was “technically not one to quiet title, .

Congress’ decision to exempt Indian lands from the

waiver of sovereign immunity impliedly forbids the re-

lief sought here.” /d. at 1254.

The Defendants argue that the Tenth Circuit decision

McAlpine v. United States, 112 F.3d 1429 (10th Cir.

1997), rejects the Eleventh Circuit’s reasoning in Flor-

ida and demonstrates that the QTA is not a barrier to

issue of title presently before this court. In McAlpine,

the Tenth Circuit considered a case where a Native

American sued the United States and BIA after his re-

quest that land be taken into trust was denied. The

McAlpine Court then concluded that the Secretary of

Interior’s denial of acquisition of land to be held in

trust is reviewable under the APA. See McAlpine, 112

F.3d at 1435. This guidance from the Tenth Circuit,

10a

however, is not helpful to answer the legal issue here.

As the government points out, McAlpine deals with a

situation where the United States did not acquire title;

this case deals with the situation where the United

States did in fact acquire title. The acquisition of title

divests this court of jurisdiction to challenges to the

United States’ right to title as the Florida Court rec-

ognized. See Florida, 768 F.2d at 1254-55.

Several federal courts treating similar issues have

made similar distinctions. With regard to the QTA In-

dian lands exemption generally, “[a]s long as the United

States has a ‘colorable claim’ to a property interest

based on that property’s status as trust or restricted

Indian lands, the QTA renders the government immune

from suit.” State v. Babbitt, 75 F.3d 449, 451-52 (9th

Cir. 1995) cert. denied 519 U.S. 818, 117S. Ct. 70, 136 L.

Ed. 2d 30 (1996) [hereinafter “Alaska I”]. In addition,

the question of whether the government has a colorable

claim “extends no further than ‘a determination that

the government had some rationale,’ and that its posi-

tion ‘was not undertaken in either an arbitrary or

frivolous manner.’” Alaska v. Babbitt, 182 F.3d 672,

675 (9th Cir. 1999). Such a limitation is consistent with

the rule that “[tJhe immunity of the government applies

whether the government is right or wrong. The very

purpose of the doctrine is to prevent a judicial examina-

tion of the merits of the government’s position.” Wild-

man v. United States, 827 F.2d 1306, 1309 (9th Cir.

1987). Not only does the present case deal with facts

quite different from those in McAlpine, it deals with

facts that clearly show that the government now holds

title by virtue of a special warranty deed, a document

surely signifying at least a “colorable claim.”

lla

The Indian lands exception to the QTA bars the

State’s claim in this case even though the State claims

the right to regulate the lands in question, because, as

discussed above, underlying the State’s claim is a chal-

lenge to the government’s title to the land. See Rosette

Inc. v. United States, 141 F.3d 1394 (10th Cir. 1998);

Shawnee Trail Conservancy v. United States Dept. of

Ag., 222 F.3d 383 (7th Cir. 2000). Moreover, while no

parties cite these cases, there are cases in which the

Indian Lands exemption under the QTA was held to

apply even though it was unclear whether the land was,

or ultimately would be, held in trust for Indians. See,

e.g., Mashpee Tribe v. New Seabury Corp., 427 F. Supp.

899, 903 (D. Mass. 1977) (finding that government had

not waived immunity even if it had not been deter-

mined that the land at issue is “trust or restricted In-

dian lands” within meaning of QTA exemption provi-

sion); accord State of Alaska v. Babbitt, 38 F.8d 1068

(9th Cir. 1994) [hereinafter “Alaska IT’). Indeed, other

courts have explicitly held that “Congress did not in-

tend to waive its sovereign immunity with respect to

quiet title action in cases which would impact on Indian

ownership rights.” Newman v. United States, 504 F.

Supp. 1176, 1178 (D. Ariz. 1981) (emphasis added). In

Newman, the court found irrelevant the fact that there

had been no definative prior determination of whether

the disputed land was “trust or restricted Indian lands”

with regard to the issue of whether the government en-

joyed immunity under statute; rather the court found

that the claim to title asserted by the government

merely had to be substantial. /d. at 1178-79. As such,

the Indian lands exemption to the QTA prohibits dis-

turbing the government’s holding title, even though the

procedural posture of this case has mandated that the

12a

BIA conduct NEPA review before issuing a decision to

hold the title in trust.

Admittedly, there is an ambiguity or tension in the

distinction between the act of the government holding

title and the act of the BIA deciding to hold the land in

trust. Under binding Supreme Court and Tenth Circuit

precedent, however, such tensions and ambiguity do

not suggest a different disposition of the matter and,

indeed, suggest rather that such ambiguities are re-

solved in favor of the Shivwits. “The canons of con-

struction applicable in Indian law are rooted in the

unique trust relationship between the United States

and the Indians.” Montana v. Blackfeet Tribe of Indi-

ans, 471 U.S. 759, 766, 105 S. Ct. 2399, 85 L. Ed. 2d 753

(1985) (quotation marks, citation, and alteration omit-

ted). In issues arising under Indian law, “statutes are

to be construed liberally in favor of the Indians, with

ambiguous provisions interpreted to their benefit.” Jd.

citing McClanahan v. Arizona State Tax Comm’n, 411

U.S. 164, 174, 93 8. Ct. 1257, 36 L. Ed. 2d 129 (1973);

Choate v. Trapp, 224 U.S. 665, 675, 32 S. Ct. 565, 56

L.Ed. 941 (1912); United States v. 162 MegaMania

Gambling Devices, 231 F.3d 718, 718 (10th Cir. 2000);

Newman, 504 F. Supp. at 1178-79. Interpreting the

QTA as the courts above suggest is not only supported

by these canons of statutory interpretation, but also by

the legislative intent behind the Indian lands exception

to the QTA. That history demonstrates that Congress

intended to prevent prejudice to Indian rights and to

prevent the abridgment of “the historic relationship be-

tween the Federal Government and the Indians with-

out the consent of the Indians.” Quiet Title Act, Pub. L.

92-562, 1972 U.S. Code Cong. & Admin. News, pp.

4547, 4557. As the Newman court put it: “It is clear,

13a

therefore, that Congress did not intend to waive its

sovereign immunity with respect to quiet title action in

cases which would impact on Indian ownership rights.”

504 F. Supp. at 1178 (emphasis added).

In sum, therefore, the Indian lands exception to the

QTA bars disturbing the government’s title in trust to

the subject property in dispute. This finding leaves the

matter in the following situation. The government’s

claim to title in trust remains undisturbed (indeed

barred from judicial review by the QTA). Neverthe-

less, under the APA, the decision by the BIA to accept

the land in trust is subject to judicial review under

NEPA. Thus, the procedural requirements mandated

by the August 11, 2000 order still stand, as does the

court’s preliminary injunction order. The Defendants’

remedy is largely procedural. Defendants cannot chal-

lenge the status of the title in trust, as prohibited by

the QTA. However, Defendants may challenge the pro-

cedures taken in reaching the decision by the BIA to

hold the land in trust, as recognized in the court’s pre-

vious order. The Defendants’ remedies are limited, as

is legally proper, to procedural protections and their

rights, as the law dictates, find voice and representation

in the NEPA process and APA review.

B. Defendants’ Remaining Arguments Supporting

Summary Judgment are Not Ripe and are Barred

by the Abstention Doctrine which Prohibits the

Court from Issuing Advisory Opinions

Defendants alternatively seek summary judgment on

the issue of State and local land regulation, arguing that

the land is neither held in trust for the tribe nor that it

is “Indian Country,” either of which designation might

prohibit State regulation of the land. While the issue of

14a

title, as discussed above, is settled by the QTA, the is-

sue of the State’s right to regulate cannot be answered

at the present time because the Department of the In-

terior and the BIA have not made a decision regarding

whether the land will be held in trust. Thus, at present,

it is impossible for the court to determine with cer-

tainty whether the land is held (or will be held) in trust

or whether it is “Indian Country” under the legal defi-

nition of that term.

The United States Constitution limits this court’s ju-

risdiction to those involving actual “cases” and “contro-

versies.” U.S. Const. Art. III, § 2, cl. 1. The Constitu-

tion’s case and controversy requirement prevents this

court from issuing “advisory opinions” and from consid-

ering cases issues which are not ripe. See Public Serv-

ice Company of Colorado v. United States Environ-

mental Protection Agency, 225 F.3d 1144, 1148 n.4 (10th

Cir. 2000) (discussing prohibition against advisory

opinions); United States v. Chavez-Palacios, 30 F.3d

1290, 1292-93 (10th Cir. 1994) (same); New Mexicans for

Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th

Cir. 1995) (discussing ripeness requirement); /nitiative

and Referendum Institute v. Walker, 161 F. Supp. 2d

1307, 1310-11 (D. Utah 2001) (same).

For the court to make the factual determination on

the actual status of the land for regulatory purposes-as

Indian Country, as Native held non-Indian Country, or

as trust land (any of which category may or may not

subject the land to State and local regulation)-the court

must first know what the final decisions of the BIA and

the Secretary of the Interior are, and this information is

unavailable to the court until the NEPA process is

complete. The question of whether the Defendants may

regulate the land is therefore not ripe, and the court is

15a

unable to issue an opinion on this line of argumentation

due to the Constitution’s prohibition of the issuance of

advisory opinions.

Order

For the reasons set forth above, Defendants motions

to vacate preliminary injunction order and for summary

judgment are DENIED.

16a

APPENDIX B

Act of June 18, 1934, ch. 576, 48 Stat. 984 (25 U.S.C.

641 et seq.) provides in pertinent part:

§ 461. Allotment of land on Indian reservations

On and after June 18, 1934, no land of any Indian res-

ervation, created or set apart by treaty or agreement

with the Indians, Act of Congress, Executive order,

purchase, or otherwise, shall be allotted in severalty to

any Indian.

§ 462. Existing periods of trust and restrictions on

alienation extended

The existing periods of trust placed upon any Indian

lands and any restriction on alienation thereof are ex-

tended and continued until otherwise directed by Con-

gress.

§ 463. Restoration of lands to tribal ownership

(a) Protection of existing rights

The Secretary of the Interior, if he shall find it to be

in the public interest, is hereby authorized to restore to

tribal ownership the remaining surplus lands of any In-

dian reservation heretofore opened, or authorized to be

opened, to sale, or any other form of disposal by Pre-

sidential proclamation, or by any of the public-land laws

of the United States: Provided, however, That valid

rights or claims of any persons to any lands so with-

drawn existing on the date of the withdrawal shall not

be affected by this Act: Provided further, That this sec-

tion shall not apply to lands within any reclamation pro-

ject heretofore authorized in any Indian reservation.

x k KK

17a

§ 464. [As amended by Pub. L. No. 109-221, §

501(b)(1), 120 Stat. 343-344.] Transfer and

exchange of restricted Indian lands and shares

of Indian tribes and corporations

Except as provided in this Act, no sale, devise, gift,

exchange, or other transfer of restricted Indian lands or

of shares in the assets of any Indian tribe or corporation

organized under this Act shall be made or approved:

Provided, That such lands or interests may, with the

approval of the Secretary of the Interior, be sold, de-

vised, or otherwise transferred to the Indian tribe in

which the lands or shares are located or from which the

shares were derived, or to a successor corporation:

Provided further, That, subject to section 8(b) of the

American Indian Probate Reform Act of 2004 (Public

Law 108-374; 25 U.S.C. 2201 note), lands and shares de-

scribed in the preceding proviso shall descend or be de-

vised to any member of an Indian tribe or corporation

described in that proviso or to an heir or lineal descen-

dant of such a member in accordance with the Indian

Land Consolidation Act (25 U.S.C. 2201 et seq.), in-

cluding a tribal probate code approved, or regulations

promulgated under, that Act: Provided further, That

the Secretary of the Interior may authorize any volun-

tary exchanges of lands of equa! value and the volun-

tary exchange of shares of equai value whenever such

exchange, in the judgment of the Secretary, is expedi-

ent and beneficial for or compatible with the proper

consolidation of Indian lands and for the benefit of co-

operative organizations.

18a

§ 465. Acquisition of lands, water rights or surface

rights; appropriation; title to lands; tax exemp-

tion

The Secretary of the Interior is authorized, in his dis-

cretion, to acquire, through purchase, relinquishment,

gift, exchange, or assignment, any interest in lands, wa-

ter rights, or surface rights to lands, within or without

existing reservations, including trust or otherwise re-

stricted allotments, whether the allottee be living or

deceased, for the purpose of providing land for Indians.

For the acquisition of such lands, interests in lands,

water rights, and surface rights, and for expenses inci-

dent to such acquisition, there is authorized to be ap-

propriated, out of any funds in the Treasury not other-

wise appropriated, a sum not to exceed $2,000,000 in

any one fiscal year: Provided, That no part of such

funds shall be used to acquire additional land outside of

the exterior boundaries of Navajo Indian Reservation

for the Navajo Indians in Arizona, nor in New Mexico,

in the event that legislation to define the exterior

boundaries of the Navajo Indian Reservation in New

Mexico, and for other purposes, or similar legislation,

becomes law.

The unexpended balances of any appropriations made

pursuant to this section shall remain available until ex-

pended.

Title to any lands or rights acquired pursuant to this

Act or the Act of July 28, 1955 (69 Stat. 392), as

amended (25 U.S.C. 608 et seq.) shall be taken in the

name of the United States in trust for the Indian tribe

or individual Indian for which the land is acquired, and

such lands or rights shall be exempt from State and lo-

cal taxation.

19a

§ 466. Indian forestry units; rules and regulations

The Secretary of the Interior is directed to make

rules and regulations for the operation and manage-

ment of Indian forestry units on the principle of sus-

tained-yield management, to restrict the number of

livestock grazed on Indian range units to the estimated

carrying capacity of such ranges, and to promulgate

such other rules and regulations as may be necessary to

protect the range from deterioration, to prevent soil

erosion, to assure full utilization of the range, and like

purposes.

§ 467. New Indian reservations

The Secretary of the Interior is hereby authorized to

proclaim new Indian reservations on lands acquired

pursuant to any authority conferred by this Act, or to

add such lands to existing reservations: Provided, That

lands added to existing reservations shall be designated

for the exclusive use of Indians entitled by enrollment

or by tribal membership to residence at such reserva-

tions.

* kK KX

§ 469. Indian corporations; appropriation for organiz-

ing

There is hereby authorized to be appropriated, out of

any funds in the Treasury not otherwise appropriated,

such sums as may be necessary, but not to exceed

$250,000 in any fiscal year, to be expended at the order

of the Secretary of the Interior, in defraying the ex-

penses of organizing Indian chartered corporations or

other organizations created under this Act.

20a

§ 470. Revolving fund; appropriation for loans

There is authorized to be appropriated, out of any

funds in the Treasury not otherwise appropriated, the

sum of $20,000,000 to be established as a revolving fund

from which the Secretary of the Interior, under such

rules and regulations as he may prescribe, may make

loans to Indian chartered corporations for the purpose

of promoting the economic development of such tribes

and of their members, and may defray the expenses of

administering such loans. Repayment of amounts

loaned under this authorization shall be credited to the

revolving fund and shall be available for the purposes

for which the fund is established.

§ 471. Vocational and trade schools; appropriation for

tuition

There is authorized to be appropriated, out of any

funds in the United States Treasury not otherwise ap-

propriated, a sum not to exceed $250,000 annually, to-

gether with any unexpended balances of previous ap-

propriations made pursuant to this section, for loans to

Indians for the payment of tuition and other expenses

in recognized vocational and trade schools: Provided,

That not more than $50,000 of such sum shall be avail-

able for loans to Indian students in high schools and

colleges. Such loans shali be reimbursable under rules

established by the Commissioner of Indian Affairs.

§ 472. Standards for Indians appointed to Indian Of-

fice

The Secretary of the Interior is directed to establish

standards of health, age, character, experience, knowl-

edge, and ability for Indians who may be appointed to

the various positions maintained, now or hereafter, by

the Indian Office, in the administration of functions or

Zla

services affecting any Indian tribe. Such qualified In-

dians shall hereafter have the preference to appoint-

ment to vacancies in any such positions.

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§ 476. Organization of Indian tribes; constitution and

bylaws and amendment thereof; special elec-

tion

(a) Adoption; effective date

Any Indian tribe shall have the right to organize for

its common welfare, and may adopt an appropriate con-

stitution and bylaws, and any amendments thereto,

which shall become effective when—

(1) ratified by a majority vote of the adult mem-

bers of the tribe or tribes at a special election author-

ized and called by the Secretary under such rules and

regulations as the Secretary may prescribe; and

(2) approved by the Secretary pursuant to sub-

section (d) of this section.

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(e) Vested rights and powers; advisement of presubmit-

ted budget estimates

In addition to all powers vested in any Indian tribe or

tribal council by existing law, the constitution adopted

by said tribe shall also vest in such tribe or its tribal

council the following rights and powers: To employ le-

gal counsel; to prevent the sale, disposition, lease, or

encumbrance of tribal lands, interests in lands, or other

tribal assets without the consent of the tribe; and to ne-

gotiate with the Federal, State, and local governments.

The Secretary shall advise such tribe or its tribal coun-

cil of all appropriation estimates or Federal projects for

22a

the benefit of the tribe prior to the submission of such

estimates to the Office of Management and Budget and

the Congress.

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§ 477. Incorporation of Indian tribes; charter; ratifi-

cation by election

The Secretary of the Interior may, upon petition by

any tribe, issue a charter of incorporation to such tribe:

Provided, That such charter shall not become operative

until ratified by the governing body of such tribe. Such

charter may convey to the incorporated tribe the power

to purchase, take by gift, or bequest, or otherwise, own,

hold, manage, operate, and dispose of property of every

description, real and personal, including the power to

purchase restricted Indian lands and to issue in ex-

change therefor interests in corporate property, and

such further powers as may be incidental to the conduct

of corporate business, not inconsistent with law, but no

authority shall be granted to sell, mortgage, or lease for

a period exceeding twenty-five years any trust or re-

stricted lands included in the limits of the reservation.

Any charter so issued shall not be revoked or surren-

dered except by Act of Congress.

§ 478. Acceptance optional

This Act shall not apply to any reservation wherein a

majority of the adult Indians, voting at a special elec-

tion duly called by the Secretary of the Interior, shall

vote against its application. It shall be the duty of the

Secretary of the Interior, within one year after June 18,

1934, to call such an election, which election shall be

held by secret ballot upon thirty days’ notice.

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§ 479. Definitions

The term “Indian” as used in this Act shall include all

persons of Indian descent who are members of any rec-

ognized Indian tribe now under Federal jurisdiction,

and all persons who are descendants of such members

who were, on June 1, 1934, residing within the present

boundaries of any Indian reservation, and shall further

include all other persons of one-half or more Indian

blood. For the purposes of this Act, Eskimos and other

aboriginal peoples of Alaska shall be considered Indi-

ans. The term “tribe” wherever used in this Act shall

be construed to refer to any Indian tribe, organized

band, pueblo, or the Indians residing on one reserva-

tion. The words “adult Indians” wherever used in this

Act shall be construed to refer to Indians who have at-

tained the age of twenty-one years.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.