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

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No. 05-1160 T : }

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

*

STATE OF UTAH; UTAH DEPARTMENT OF

TRANSPORTATION; ST. GEORGE CITY,

a Utah Municipal Corporation,

Petitioners,

Vv.

SHIVWITS BAND OF PAIUTE INDIANS; KUNZ & CO.

dba KUNZ OUTDOOR ADVERTISING, a California

Corporation; GALE NORTON, in her capacity as

Secretary of the United States Department of the Interior;

NEAL McCALEB, in his capacity as Assistant Secretary of

Interior, Indian Affairs; WAYNE NORDWALL, in his

capacity as Area Director, Bureau of Indian Affairs; and

the BUREAU OF INDIAN AFFAIRS,

Respondents.

,

v

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

S

BRIEF OF THE STATES OF CONNECTICUT,

RHODE ISLAND, ALABAMA, ARKANSAS,

COLORADO, IDAHO, IOWA, KANSAS, LOUISIANA,

MICHIGAN, MISSOURI, NEVADA, NEW YORK,

NORTH DAKOTA, OHIO, SOUTH DAKOTA

AND WYOMING, AS AMICI CURIAE

IN SUPPORT OF THE PETITIONERS

°

RICHARD BLUMENTHAL PATRICK C. LYNCH

Attorney General of Attorney General of

Connecticut Rhode Island

ROBERT J. DEICHERT *NEIL F.X. KELLY

Assistant Attorney General Assistant Attorney General

55 Elm Street, P.O. Box 120 150 South Main Street

Hartford, CT 06141-0120 Providence, RI 02903-2907

(860) 808-5020 (401) 274-4400

FAX (860) 808-5347 FAX (401) 222-2995

*Counsel of Record

{Additional Appearances On Inside Cover]

ont te ome <neramne ane

—- coasts em ne eer

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402).342-2631

TROY KING

Attorney General of Alabama

MIKE BEEBE

Attorney General of Arkansas

JOHN W. SUTHERS

Attorney General of Colorado

LAWRENCE G. WASDEN

Attorney General of Idaho

THOMAS J. MILLER

Attorney General of Iowa

PHILL KLINE

Attorney General of Kansas

CHARLES C, FOTI, JR.

Attorney General of Louisiana

MICHAEL A. Cox

Attorney General of Michigan

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

GEORGE J. CHANOS

Attorney General of Nevada

ELIOT SPITZER

Attorney General of New York

WAYNE STENEHJEM

Attorney General of North Dakota

JIM PETRO

Attorney General of Ohio

LAWRENCE E. LONG

Attorney General of South Dakota

PATRICK CRANK

Attorney General of Wyoming

TABLE OF CONTENTS

Page

TABLE OF AUTHOR E ie oersccsccscsdsviscevscnsveissersareeseses ii

INTEREST OF THE AMICI CURIAE.............:cccsseeceees 1

SUMMARY OF THE ARGUMENT. ............::ccceceeeeeeeee 2

REASONS FOR GRANTING THE WRIT...................- 4

I. THE TENTH CIRCUITS DECISION EFFEC-

TIVELY IGNORES CRITICAL ASPECTS OF

THIS COURT'S DECISION IN WHITMAN ..... 4

Il. THE TENTH CIRCUITS DECISION IN-

VOLVES AN IMPORTANT QUESTION OF

FEDERAL LAW THAT IMPACTS FUNDA-

MENTAL STATE SOVEREIGN INTERESTS... 8

Ill. THE TENTH CIRCUITS DECISION IS

INCONSISTENT WITH THE CONSTITU-

TIONAL PRINCIPLES UNDERLYING THE

NONDELEGATION DOCTRINE..................065 12

A. The Trust Power Has Nationwide Impact

and § 465 Fails to Provide Substantial

COMERIUIE 5c coccasscibcapcaiommiiecsteienaccasescecssine 12

B. The Trust Power’s Significance is Too

Great for it to Be Considered Anything

Other than Legislative....................ccceceeeeees 16

COINCLURSIOIN : ssiicsco sciatica acai Hipalcenobiensiennss cNceees 18

ii

TABLE OF AUTHORITIES

Page

CASES

A.i.A. Schecter Poultry Corp. v. United States, 295

UF RE | ER Aa ORME NE eT ee ee RS OS 4

Bureau of Alcohol, Tobacco & Firearms v. Fed.

Labor Relations Authority, 464 U.S. 89 (1983)............. 15

California v. Cabazon Band of Mission Indians, 480

UB FOR a ihc Siciiniitietnni eee 10

Carcieri v. Norton, 423 F.3d 45 (1st Cir. 2005)................... 6

Cass County v. Leech Lake Band of Chippewa

Indians, 524 U.S. 103 (1998).........ccccccccescsccssccccsovscacnecs see D

Elder v. Holloway, 510 U.S. 510 (1994) 00... eee ee 13

Exxon Mobil Corp. v. Allapattah Servs., __ U.S.

ere Bs Ge il Re ie 12, 14

Panama Refining Co. v. Ryan, 293 U.S. 388 (19385) ........... 4

Priniz v. United States, 521 U.S. 898 (1997) ..............ccceeeee 8

Shivwits Band of Paiute Indians v. Utah, 428 F.3d

SOS CIE CI Ft circ tveicsocndocivtisessosiciscnticoaencarees passim

South Dakota v. Department. of the Interior, 423

FBG THO CEs Cae BO ee evinvesvevcccestasescsntrectsestnconis 6, 11, 15

South Dakota v. Department of the Interior. 69 F.3d

878 (8th Cir. 1995), cert. granted and decision

vacated at, 519 U.S. 919 (1996).....c.. ec ecseeteeseeeeoeee 6, 8

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

SIE shnisiccciccssctidnshckeuchinbesakie ihdinisiacoddindeiaiauiaa mca, 5, 6, 13

United States v. Stands, 105 F.3d 1565 (8th Cir.

SOG P ssscidscspaciceatacla cocciokessnecseadintaeuctacnion vacamumceaaass 10

Washington v. Conf. Tribes of the Colville Indian

Bek: GET WB Be Cy cicteroch cote 10

TABLE OF AUTHORITIES ~ Continued

Page

White Mountain Apache Tribe v. roar, 448 US.

BE CR ieviccaticcleitacbihaedectlacpdonpikttiacsctecunantdjaiauuiiaieas 10

Whitman v. American Trucking Ass’ns, Inc., “31

Roi TE CE wasicsacc thc rates Scilenhiticnniegtdnheoteapebin passim

STATUTES

ee ees eisai hci desided an uatainstioinda Soielnaidiecegow hoa ountioss 10

BP A Aaa We Pca sieiinicadigndensebocsdubinsagodine waneusvbavoatscnececone: passim

OTHER AUTHORITIES

Gary Lawson, Article: Delegation and Original

Meaning, 88 Va. L. Rev. 327 (2002).............cccccceeeceeeeees 17

Judith V. Royster and Rory Snow Arrow Fausett,

Control of the Reservation Environment: Tribal

Primacy, Federal Delegation, and the Limits of

State Intrusion, 64 Wash. L. Rev. 581 (1989).................. 9

REGULATIONS

- ek 2 RE ke REARS aan ce nae aT RMON TNT Se an 16

cm 9

a Es: Ee: ReRarep ena apee tana ern oe SNe RN tale a mEAIE 16

CONSTITUTIONAL PROVISIONS

Fes Cs Rs Be OE oc iain idcicccds ssecanccoubacadeuecs bdeaes 9

ye I isn as acc licdommeduckaedoasouamanocpias 9

INTEREST OF THE AMICI CURIAE

The amici curiae States of Alabama, Arkansas, Colo-

rado, Connecticut, Idaho, Iowa, Kansas, Louisiana, Michi-

gan, Missouri, Nevada, New York, North Dakota, Ohio,

Rhode Island, South Dakota and Wyoming (the “Amici

States”), by and through their Attorneys General, respect-

fully submit this brief in support of the Petition for a Writ

of Certiorari filed by the State of Utah.

The Amici States have a vital interest in this case

because it concerns the constitutionality of 25 U.S.C. § 465

(“§ 465”), which grants the Secretary of the Interior (“the

Secretary”) unfettered discretion to take land within any

State into trust on behalf of Indian tribes. Land taken into

trust is immediately removed from state authority in

many respects, limiting the impacted State’s ability to

exercise its fundamental police powers to protect the

welfare of the public both on the trust land and in the

surrounding communities. Specifically, the Secretary has

taken the position that trust land is exempt from land use

restrictions and possibly environmental regulations.

Moreover, trust land is immediately removed from the

taxing authority of state and local governments, thereby

depriving them of substantial revenue. Thus, the end

result of taking land into trust is the removal of land from

the State’s jurisdiction in many respects — without the

State’s consent — and the creation of an area controlled by

a competing sovereign within that State’s borders.

The Secretary has already taken into trust several

million acres nationwide pursuant to § 465 (an area

approximately twice the size of Connecticut and Rhode

Island combined) and receives a large number of applica-

tions annually to take additional land into trust. Despite

2

the expansive scope of those acquisitions and their sub-

stantial impacts on the States and their sovereign inter-

ests, this Court has not yet determined whether or not

§ 465’s delegation of the trust power to the Secretary

comports with the nondelegation doctrine and is therefore

constitutional. Even more troubling, lower courts that

have considered the issue — including the Tenth Circuit

here — have failed, contrary to this Court’s precedent, to

even consider the trust power’s negative impacts on state

sovereignty and, instead, have reflexively upheld § 465

based on cases that did not implicate such interests. The

States have a compelling interest in having the trust

power’s impacts on their sovereignty properly considered

and the constitutionality of § 465 determined by this

Court.

4

vy

SUMMARY OF THE ARGUMENT

This case presents the question whether the nondele-

gation doctrine — which this Court has previously charac-

terized as rooted in the principles underlying our entire

system of government — still has any meaning. Consistent

with this Court’s pronouncements, the Amici States

believe it does and that it mandates reversal of the Tenth

Circuit’s decision.

In this Court’s most recent decision addressing the

nondelegation doctrine, Whitman v. American Trucking

Ass’ns, Inc., 531 U.S. 457 (2001), this Court reaffirmed the

nondelegation doctrine’s continued viability. Although the

Court upheld the statute at issue in that case, it reiterated

that delegations of legislative power are unconstitutional

and made explicit that whether a grant of authority by

3

Congress is an unconst: * »nal delegation depends on two

things: the “degree of agency discretion” Congress allows

and “the scope of the power congressionally conferred.” Id.

at 475. Thus, Congress must provide “substantial guid-

ance” when it grants an agency power that has a national

scope and impact and need only provide limited guidance

when giving an agency power to control more prosaic

matters. Id.

_ As self-evident and soiidly grounded in constitutional

fundamentals as this Court’s guidance was, the Tenth

Circuit deliberately refused to follow it. Instead, that court

explicitly ignored Whitman, going so far as to indicate that

Whitman did nothing substantial to inform the lower

courts’ nondelegation analysis and conclude that it was

bound by a pre-Whitman panel decision. Pet. App. 13. In

neither that prior panel decision nor the decision below did

the Tenth Circuit analyze the discretion Congress afforded

the agency in light of the expansive scope and impact of

the trust power on the States’ sovereign interests, as

Whitman requires. The Tenth Circuit not only treated the

nondelegation doctrine as dead, it treated Whitman as a

ghost. As a result, it failed to consider the trust power’s

national scope and profoundly negative impacts on state

sovereign interests in assessing the constitutionality of

§ 465.

When the trust power’s national scope and its direct

and substantial encroachment on core state interests are

considered, it is evident that § 465 does not provide suffi-

cient guidance. The statute allows the Secretary to take

land anywhere nationwide into trust, removing it from

state and local tax rolls and, by regulation, exempting it

from land use restrictions. The end result is the creation of

4

a “jurisdictional island” within the borders of a sovereign

state. :

It can be questioned whether Congress can delegate

such expansive and constitutionally significant power at

all. Whitman, 531 U.S. at 487 (Thomas, J., concurring). If

it can, this Court has made clear that it must, at the very

least, provide “substantial guidance” to direct the agency’s

exercise of that power. Id. at 475. Section 465 provides no

real guidance and is, therefore, unconstitutional.

+

REASONS FOR GRANTING THE WRIT

I. THE TENTH CIRCUIT’S DECISION EFFEC-

TIVELY IGNORES CRITICAL ASPECTS OF

_ THIS COURT’S DECISION IN WHITMAN

Although this Court has not held a statute unconsti-

tutional on nondelegation grounds since 1935 — when it

struck down two statutes enacted by the same Congress

that enacted § 465 — it made clear in Whitman that the

nondelegation doctrine was not a dead letter. Whitman v.

Am. Trucking Assocs., Inc., 531 U.S. 457, 474 (2001)

(discussing Panama Refining Co. v. Ryan, 293 U.S. 388

(1935) and A.L.A. Schecter Poultry Corp. v. United States,

295 U.S. 495 (1935)). This Court reiterated the fundamen-

tal principles that the Constitution vests all legislative

power in Congress, that the constitutional “text permits no

delegation of those powers” and that “when Congress

confers decisionmaking authority upon agencies [it] must

lay down by legislative act an intelligible principle to

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

conform.” Whitman, 531 U.S. at 472 (quotation marks

omitted).

5

In addition to recently reaffirming its commitment to

the constitutional principles underlying the nondelegation

doctrine, this Court provided valuable guidance as to how

lower courts should apply them, instructing that “the

degree of agency discretion that is acceptable varies

according to the scope of the power congressionally con-

ferred.” Id. at 475. For example, “[w]hile Congress need

not provide any direction to the EPA regarding the manner

in which it is to define ‘country elevators,’ ... it must

provide substantial guidance on setting air standards that

affect the entire national economy.” Id. Thus, Whitman

establishes that the nondelegation doctrine remains viable

and that the “scope of the power congressionally conferred”

is a critical part of the inquiry — where Congress confers a

power that has a broad scope, the statute must provide

“substantial guidance” to the agency. Id.

Remarkably, the Tenth Circuit chose to completely

ignore that guidance. Indeed, it not only failed to consider

the exceedingly expansive scope of the § 465 trust power

and its incursions on state sovereignty in rejecting the

nondelegation challenge, it went so far as to expressly

conclude that Whitman did not significantly inform the

nondelegation analysis. Pet. App. 13 (concluding that court

remained bound by a pre-Whitman panel decision uphold-

ing §465 against a nondelegation challenge); United

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

panel decision). As a result, the scope of the trust power

was never considered as part of the nondelegation inquiry

below — the Tenth Circuit simply focused on the putative

“limitations” imposed by the statute and required Con-

gress to provide only minimal guidance. In so doing, the

Tenth Circuit treated the trust power — which gives the

Secretary the ability to create islands “for Indians” within

6

a State, adversely affecting state jurisdiction and regula-

tory authority’ ~ as no different from the regulation of

“country elevators.” Whitman, 531 U.S. at 475. That is

nonsense.

Unfortunately for the States and citizens impacted by

the unfettered exercise of the trust power by the Secretary,

the Tenth Circuit is not alone in its complete disregard of

the scope of the trust authority in assessing the constitu-

tionality of § 465’s standardless discretion. Indeed, every

circuit court to address § 465’s constitutionality post-

Whitman has disregarded the fundamental impacts of the

trust power on state sovereignty. See South Dakota v.

Department of Interior, 423 F.3d 790, 796 (8th Cir. 2005)

(Petition for Writ of Certiorari Pending No. 05-1428) (see

infra footnote 7); Carcieri v. Norton, 423 F.3d 45, 49 (1st

Cir. 2005) (petition for rehearing en banc pending)’; see

also Pet. App. 14 (noting that although the First Circuit

cited Whitman in Carcieri, it “made no mention of it

having altered or ‘modernized’ the non-delegation princi-

ples that were in place when Roberts was decided”).

’ Of course, the affected State will make every effort to limit the

impact of the trust acquisition on its sovereign interests through legal

challenges. Even if the State is ultimately successful to some degree,

the acquisition results in uncertainty and litigation.

? Neither the Eighth Circuit in South Dakota, 423 F.3d at 795-800,

the First Circuit in Carcieri, 4°93 F.3d at 56-59, nor the Tenth Circuit

below addressed the issue of whether the “degrce of agency discretion”

was “acceptable” in relation to the “scope of the power congressionally

conferred” under a nondelegation analysis as required by Whitman, 531

U.S. at 475. Instead, as with the Tenth Circuit below, they relied upon

the reasoning in Roberts that in turn relied upon the dissent in the

initial panel decision in South Dakota v. Department of the Interior, 69

F.3d 878 (8th Cir. 1995) (Murphy, J., dissenting), cert. granted and

decision vacated at, 519 U.S. 919 (1996), to uphold the delegation.

7

The existing situation is untenable. Whitman’s recog-

nition that Congress must provide more guidance when

conferring a power that has nationwide impact — like the

trust power — than it must provide when legislating in

more quotidian areas is simply too fundamental to be

ignored. Whitman, 531 U.S. at 475.

Despite that principle’s importance, the lower courts

have blithely failed to consider the scope of the trust power

at all in assessing the constitutionality of § 465. That

failure is of particular import here given the trust power’s

substantial and negative implications for state sover-

eignty. The federal courts appear to have been blinded to

the continued existence of the nondelegation doctrine by

the lapse of time since this Court last invoked it to holda |

statute unconstitutional and by the lower courts’ pre-

Whitman decisions upholding § 465. It is up to this Court

to provide a definitive statement as to the viability of the

nondelegat‘on doctrine. 7

This case presents a crucial opportunity to provide

such a statement. It may be that a statute only runs afoul

of the nondelegation doctrine if Congress delegates a

power of extraordinary scope and fails to provide “substan-

tial guidance.” Whitman, 531 U.S. at 475 (opinion of the

Court). It may be that “there are cases in which the

principle is intelligible and yet the significance of the

delegated decision is simply too great for the decision to be

called anything other than ‘legislative.’” Id. at 487 (Tho-

mas, J., concurring). Either way, § 465 is patently uncon-

stitutional. Ultimately, this Court should provide a clear

answer, whatever it may be.

8

II. THE TENTH CIRCUIT’S DECISION INVOLVES

AN IMPORTANT QUESTION OF FEDERAL

LAW THAT IMPACTS FUNDAMENTAL STATE

SOVEREIGN INTERESTS

Whether § 465 is an unconstitutional delegation of

legislative power is more than just a technical question;

the exercise of the trust power strikes at the core of state

sovereignty and fundamentally impacts the balance of

power between the States, the federal government and the

Indian tribes. It allows the Secretary to take land any-

where in the Country — no matter how far removed from

the tribe’s reservation — into trust, thereby carving it out

of the State’s territorial jurisdiction in many respects and

severely limiting the State’s ability to protect the health,

safety, and welfare of all citizens within the State, Indian

and non-Indian alike.’ Allowing the Secretary to exercise

power of that scope without even minimal — let alone

substantial — Congressional guidance is a clear violation of

the nondelegation doctrine.

The Constitution recognizes the States’ core sovereign

interests, particularly where their control over their

territory is concerned. See, e.g., Printz v. United States,

* As the Eighth Circuit noted in striking down § 465 as an uncon-

stitutional delegation,

By its literal terms, the statute permits the Secretary to

purchase a factory, an office building, a residential subdivi-

sion, or a golf course in trust for an Indian tribe, thereby

removing these properties from state and local tax rolls. In-

deed, it would permit the Secretary to purchase the Empire

State Building in trust for a tribal chieftain as a wedding

present.

South Dakota v. Department of the Interior, 69 F.3d 878, 882 (8th Cir.

1995), cert. granted and decision vacated at, 519 U.S. 919 (1996).

9

521 U.S. 898, 918-19 (1997) (noting that the States’ “re-

siduary and inviolable sovereignty” is “reflected through-

out the Constitution’s text, including . . . the prohibition on

any involuntary reduction or combination of a State’s

territory, Art. IV, § 3”). The exercise of the trust power

directly and profoundly infringes on those constitutionally

protected interests.‘

As averred to above, when the Secretary exercises the

trust power, the land taken into trust is in many respects

removed from the State’s territorial jurisdiction and state

and local governments’ ability to regulate that land is

adversely affected. Specifically, trust land is insulated

from state and local taxation, land use restrictions and,

possibly, environmental regulation. See Cass County v.

Leech Lake Band of Chippewa Indians, 524 U.S. 103, 110-

11 (1998) (noting that trust land is insulated from state

and local taxation absent clear congressional authoriza-

tion); 25 C.FR. §1.4(a) (providing that trust land is

exempt from “the laws ... or other regulations of any

State or political subdivision thereof limiting, zoning or

otherwise governing, regulating, or controlling the use or

development of any real or personal property”); Judith V.

Royster and Rory Snow Arrow Fausett, Control of the

Reservation Environment: Tribal Primacy, Federal Delega-

tion, and the Limits of State Intrusion, 64 Wash. L. Rev.

581 (1989) (concluding that environmental regulation

“whether aimed at native or non-native persons or activi-

ties, is prohibited in Indian country”). Moreover, there is a

* The strength of that interest is further reflected by the Enclave

Clause, U.S. Const. art. I, § 8, cl.17, which requires the federal govern-

ment to obtain the consent of a State before exercising exclusive

legislative authority over land within the State.

10

question as to whether ~— as the Tenth Circuit held below —

trust lands are “Indian country.” If they are, that imposes

even more barriers to state civil and criminal jurisdiction

on trust lands, because in Indian country state regulatory

interests are generally made subordinate to the federal

interest in favor of tribal sovereignty. See, e.g., California

v. Cabazon Band of Mission Indians, 480 U.S. 202, 216

(1987); White Mountain Apache Tribe v. Bracker, 448 U.S.

136, 142-43 (1980).

The ultimate result of the Secretary’s exercise of the

trust power on behalf of an Indian tribe goes beyond the

substantial impacts resulting from limiting the State’s

regulatory control and ability to tax the land. Taking land

into trust also creates an area controlled by a competing

sovereign within the State’s borders without the State’s

consent, either directly or through congressional guidance

and direction. Few, if any, other powers have such direct,

fundamental and negative impacts on state sovereignty.

This case demonstrates those negative impacts. The tribe

marketed its exemption from state regulation to a private

entity to allow that entity to engage in conduct that

violated state law.° Thus, the trust power was used as a

deliberate end-run around state law.

* Circuit courts are split on the question. Compare Shivwits Band

of Paiute Indians v. Utah (Pet. App. 45) (assuming that trust land

constitutes “Indian country” as defined in 18 U.S.C. § 1151) with United

States v. Stands, 105 F.3d 1565, 1572 & n.3 (8th Cir. 1997) (“For

jurisdictional purposes, tribal trust land beyond the boundaries of a

reservation is ordinarily not Indian country. In some circumstances, off-

reservation tribal trust land may be considered Indian country.”).

* Colville informs us that tribes cannot market an exemption from

state law such as this, where the value marketed by the tribe is not

generated on the reservation. Washington v. Conf. Tribes of the Colville

(Continued on following page)

11

This is far from the only such example of the nation-

wide impact of the Secretary’s exercise of the trust power.

The Secretary has already taken into trust several million

acres nationwide pursuant to § 465 (an area approxi-

mately twice the size of Connecticut and Rhode Island

combined) and receives a large number of applications

annually to take additional land into trust. Each of those

potential trust acquisitions has substantial reverberations.

One example is the trust acquisition of 90 acres in the City

of Oacoma, South Dakota, which due to the location of the

land threatens to stifle the natural growth of the commu-

nity.’ Each such trust acquisition deprives the impacted

State of aspects of its regulatory authority, in favor of a

competing sovereign.

In light of the scope of the § 465 trust power and its

substantial impact on state sovereignty, there can be no

doubt that Congress was required to provide the Secretary

“substantial guidance” as to how to exercise that power.

Whitman, 531 U.S. at 475. Contrary to the implications of

the decision below, imposing sharp limits on state jurisdic-

tion over lands within their borders in favor of a compet-

ing sovereign is not equivalent to regulating “country

elevators.” Jd.

Indian Res., 447 U.S. 134 (1980). The Secretary’s unbridled power gives

rise to these situations of acquiring trust land solely to market an

exemption, contrary to Colville’s teaching.

” South Dakota challenged that acquisition and has filed a Petition

for a Writ of Certiorari with this Court, No. 05-1428, requesting review

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

(rehearing and rehearing en banc was denied February 6, 2006, with

Chief Judge Loken and Judge Gruender dissenting). Like Utah's

petition here, South Dakota’s petition also presents the question of

whether § 465 unconstitutionally delegates legislative power.

12

fil. THE TENTH CIRCUITS DECISION IS INCON-

SISTENT WITH THE CONSTITUTIONAL PRIN-

CIPLES UNDERLYING THE NONDELEGATION

DOCTRINE

As discussed above, the Tenth Circuit’s failure to

consider the scope of the trust power in assessing § 465’s

constitutionality was inconsistent with this Court’s direc-

tion in Whitman. That is not the only flaw in the decision

below. The Tenth Circuit also improperly relied on legisla-

tive history to find an “intelligible principle” in § 465. As

this Court has recognized, legislative history is “often

murky, ambiguous, and contradictory” and § 465’s is

particularly so. Exxon Mobil Corp. v. Allapattah Servs.,

__. ~ US. __, 125 S. Ct. 2611, 2626 (2005). It does not

provide meaningful congressional guidance limiting the

exercise of the trust power and pretending that it does

simply allows the Secretary to cherry pick whatever

“guidance” she would like to follow. That is unacceptable

under any circumstances and particularly so here given

the scope of the trust power. Indeed, the trust power has

such an impact on core state sovereign interests that it

should be considered inherently legislative and should not

be delegated at all.

A. The Trust Power Has Nationwide Impact

and § 465 Fails to Provide Substantial

Guidance

Section 465 is patently unconstitutional under this

Court’s delegation jurisprudence. Whitman made clear

that in the intelligible principle inquiry “the degree of

agency discretion that is acceptable varies according to the

scope of the power congressionally conferred.” Id. at 475.

Where a power of national scope — especially one that is

13

intrusive on state sovereignty — is at issue, Congress must

provide the entity exercising that power “substantial

guidance” to avoid an unconstitutional delegation. Jd.

There is no doubt that the trust power is of national

scope. That cases raising the same issue were also recently

decided by the First and Eighth Circuits and that multiple

States from throughout the Nation have signed on to this

amicus curiae brief is a testament to that. Thus, the

pivotal question is whether § 465 provides “substantial

guidance” as to how the trust power must be exercised. Id.

By any reasonable measure, the guidance § 465

provides — essentially that the trust land be acquired “for

Indians” — does not rise to the level of “minimal,” let alone

“substantial.” At the outset, the Court should note that the

Tenth Circuit did not even consider whether the guidance

met the “substantial” standard Whitman contemplated

where powers of national scope are at issue. Jd. That alone

is reason enough to grant certiorari, reverse the decision

and remand it for proper consideration of the scope of the

power pursuant to Whitman. Cf. Elder v. Holloway, 510

U.S. 510, 515 (1994) (granting certiorari, reversing and

remanding where circuit court misconstrued Supreme

Court precedent).

Had the Tenth Circuit properly considered whether

the guidance Congress provided was sufficiently “substan-

tial” in light of the scope of the trust power, the result

would have been different. As it was, the decision in

Roberts, which the circuit court concluded bound it despite

this Court’s decision in Whitman, had to resort to legisla-

tive history to find even limited guidance. See United

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

so doing, the court implicitly acknowledged that the

14

statutory text alone is not enough to supply even the

guidance necessary where less significant power is at

issue. That is certainly true.

Because the statutory text provides functionally no

guidance for the exercise of the trust power, the Tenth

Circuit — in Roberts and, by extension, here ~ relied on

§ 465’s legislative history to provide the constitutionally

required intelligible principle. Pet. App. 12-13. That was

improper.

Allowing the Secretary, through her designees, to

exercise such far-reaching and constitutionally momentous

power guided only, or even in part, by legislative history —

as opposed to statutory text — is extremely problematic.

This Court recognized as much in Whitman, explicitly

providing that “[w]hen Congress confers its decision-

making 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.” Whit-

man, 531 U.S. at 472 (emphasis added; quotation marks

omitted). Legislative history is not a “legislative act.” See,

e.g., Exxon Mobil Corp. v. Allapattah Servs., __ U.S. __,

125 S. Ct. 2611, 2626 (2005) (“As we have repeatedly held,

the authoritative statement is the statutory text, not the

legislative history or any other extrinsic material.”). Nor

does it provide meaningful guidance upon which to base

the exercise of substantial power. As this Court has noted,

“legislative history is itself often murky, ambiguous, and

contradictory. Judicial investigation of legislative history

has a tendency to become, to borrow Judge Leventhal’s

memorable phrase, an exercise in ‘looking over a crowd

and picking out your friends.’” Jd. (citation omitted).

15

This case is an excellent example of why statutory

text, rather than legislative history, must provide the

guidance the Constitution requires. The legislative history

at issue here is contradictory. For instance, several parts

of that history indicate that § 465 was intended to apply

only to landless Indians — which would not include the

Shivwits Band. See, e.g., South Dakota v. Department of

the Interior, 423 F.3d 790, 798 (8th Cir. 2005) (noting that

“the legislative history frequently mentions landless

Indians” and citing examples). The Secretary has, how-

ever, chosen to apply the statute much more broadly than

those portions of its legislative history would indicate. In

so doing, the Secretary has picked out her “friends” and

discarded the inconvenient information.

Although it can be fraught with difficulty, courts have

the constitutional authority to assess sometimes ambigu-

ous legislative history and use it to inform the interpreta-

tion of a statute. See, e.g., id. (concluding that although

the legislative history “frequently mentions landless

Indians, we do not believe that Congress intended to limit

its broadly stated purposes of economic advancement and

additional lands for Indians to situations involving land-

less Indians”). That is a “quintessential judicial function.”

Bureau of Alcohol, Tobacco & Firearms v. Fed. Labor

Relations Authority, 464 U.S. 89, 98 (1983). Here, the

Tenth Circuit — along with the other lower courts that

relied on legislative history to sustain § 465 — essentially

delegated that function to the Executive Branch by leaving

the Secretary to fill the vacuum created by the lack of

statutory guidance by making her own determination of

what Congress intended by cherry picking legislative

history for “guidance” that suits her purposes. Not only is

that an abdication of Congress’ duty to provide “substantial

16

guidance” where allowing other branches to exercise

powers of broad scope, it is also an abdication of the

judicial power.

The Secretary has taken advantage of the vacuum left

by those abdications to seize unfettered power. Although

she has promulgated rules that contain factors for the

consideration of whether lands are located “outside of and

noncontiguous to the tribe’s reservation” when taking land

into trust, 25 C.F.R. § 151.11, those rules do not actually

limit her discretion.’ She has retained the ability to “waive

or make exceptions” to the regulations “where permitted

by law and the Secretary finds that such waiver or excep-

tion is in the best interest of the Indian.” 25 C.F.R. § 1.2.

Thus, the end result is an agency fiefdom, with the Secre-

tary wielding extraordinary power constrained only by her

discretion and without any real congressional guidance.

B. The Trust Power’s Significance is Too

Great for it to Be Considered Anything

Other than Legislative

Even if Congress had provided a meaningful intelligi-

ble principle to guide the Secretary’s exercise of the trust

power, which it did not, the trust power is of such signifi-

cance that it is inherently legislative and cannot constitu-

tionally be delegated. In Justice Thomas’ concurrence in

Whitman, he expressed the view that “there are cases

in which the principle is intelligible and yet the signifi-

cance of the delegated decision is simply too great for the

* Of course, even if they did, it would not avoid the nondelegation

problem. See Whitman, 531 U.S. at 473 (noting that the promulgation

of administrative rules cannot “cure an unconstitutional delegation”).

17

decision to be called anything other than ‘egislative.’”

Whitman, 531 U.S. at 487 (Thomas, J., concurring); see

also Gary Lawson, Article: Delegation and Original Mean-

ing, 88 Va. L. Rev. 327, 331 (2002) (“Justice Thomas is

clearly right about the Constitution. It does contain a

discernible, textually grounded nondelegation principle

that is far removed from modern doctrine.”).” The Amici

States’ position is consistent with this view, as it is diffi-

cult to imagine a delegated decision that would be more

constitutionally significant than the decisior ‘o take land

into trust.

As discussed in detail above, the exercise of the trust

power has profound impacts on the State within which the

trust land is located. This case illustrates those impacts.

Here, the tribe used the trust power to help a private

party make a deliberate end-run around state law by

carving the subject land out of Utah’s ability to control.

The decision and its consequences for state jurisdiction are

of extraordinary significance, both constitutionally and

practically, and simply cannot properly “be called anything

other than ‘legislative.’” Whitman, 531 U.S. at 487 (Tho-

mas, J., concurring).

Ultimately, the decision below can only be allowed to

stand if the nondelegation doctrine is truly dead. Section

465 allows the Executive to exercise broad power directly

and fundamentally infringing on state sovereignty na-

tionwide based on “guidance” the Executive is allowed to

* Justice Thomas went on to note that were the issue presented he

“would be willing to address the question whether our delegation

jurisprudence has strayed too far from our Founders’ understanding of

separation of powers.” Jd. at 487. As noted above, the Amici States

intend to present that question if given the opportunity.

18

distill from ambiguous legislative history. If the nondele-

gation doctrine allows § 465 to stand, it is meaningless. If

that is indeed the case, the death of the nondelegation

doctrine should at least be acknowledged by this Court —

the doctrine should not be allowed to simply wither from

desuetude.

3

v

CONCLUSION

For all of the foregoing reasons, the Amici States

respectfully request that the Court grant the Petition for a

Writ of Certiorari.

Respectfully submitted,

RICHARD BLUMENTHAL

Attorney General of Connecticut

ROBERT J. DEICHERT

Assistant Attorney General

55 Elm Street, P.O. Box 120

Hartford, CT 06141-0120

(860) 808-5020

FAX (860) 808-5347

PATRICK C. LYNCH

Attorney General of Rhode Island

*NEIL F.X. KELLY

Assistant Attorney General

150 South Main Street

Providence, RI 02903-2907

(401) 274-4400

FAX (401) 222-2995

*Counsel of Record

Attorneys for Amicus Curiae

June 12, 2006