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

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## Record

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

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0922%3A4. Public record. Not legal advice.