No. 99-1174
In the Supreme Court of the United States
HOLLIS EARL ROBERTS, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
WILLIAM B. LAZARUS
ETHAN G. SHENKMAN
LISA E. JONES
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether 25 U.S.C. 465, which authorizes the Secretary of the Interior
to acquire interests in real property "for the purpose of providing
land for Indians," is an unconstitutional delegation of legislative
power.
2. Whether land acquired by the United States pursuant to 25 U.S.C. 465
and held in trust for the benefit of the Choctaw Nation is "Indian
country" within the meaning of 18 U.S.C. 1151.
In the Supreme Court of the United States
No. 99-1174
HOLLIS EARL ROBERTS, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-37a) is reported at 185
F.3d 1125. The opinion of the district court denying petitioner's motion
to dismiss the indictment (Pet. App. 38a-52a) is reported at 904 F. Supp.
1262.
JURISDICTION
The judgment of the court of appeals was entered on August 3, 1999. A petition
for rehearing was denied on September 14, 1999 (Pet. App. 53a). On December
2, 1999, Justice Breyer extended the time within which to file a petition
for a writ of certiorari to and including January 12, 2000, and the petition
was filed on that date. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
STATEMENT
After a jury trial in the United States District Court for the Eastern District
of Oklahoma, petitioner was convicted on one count of aggravated sexual
abuse, in violation of 18 U.S.C. 2242, and two counts of abusive sexual
contact, in violation of 18 U.S.C. 2244. He was sentenced to concurrent
terms of imprisonment of 135 months on the Section 2242 count and 36 months
on each of the Section 2244 counts. The court of appeals affirmed. Pet.
App. 1a-37a.
1. Under 18 U.S.C. 1153(a), the United States has jurisdiction to prosecute
specified offenses committed by Indians in "Indian country." That
statutory provision, known as the "Major Crimes Act," was enacted
in 1885. Act of Mar. 3, 1885, ch. 341, § 9, 23 Stat. 385. See United
States v. Kagama, 118 U.S. 375 (1886) (upholding the Major Crimes Act).1
The offenses specified in Section 1153 include "a felony under chapter
109A" of Title 18, such as aggravated sexual abuse (18 U.S.C. 2241),
sexual abuse (18 U.S.C. 2242), and abusive sexual contact (18 U.S.C. 2244).
See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 203-204 & n.14
(1978) (discussing Section 1153).
The term "Indian country" is defined in 18 U.S.C. 1151 to encompass
three categories of land: "(a) all land within the limits of any Indian
reservation under the jurisdiction of the United States Government * * *,
(b) all dependent Indian communities * * *, and (c) all Indian allotments,
the Indian titles to which have not been extinguished." See Alaska
v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 526-531 (1998)
(discussing Section 1151).
2. Petitioner is a member of the Choctaw Nation of Oklahoma. At the time
of the events at issue in this case, petitioner was the Choctaw Nation's
Principal Chief. Pet. App. 1a-2a.
In June 1995, a federal grand jury returned an indictment charging petitioner
with two counts of aggravated sexual abuse, in violation of 18 U.S.C. 2241(a)(1)
(Counts II and IV); one count of sexual abuse, in violation of 18 U.S.C.
2242 (Count V); and five counts of abusive sexual contact, in violation
of 18 U.S.C. 2244 (Counts I, III, VI, VII, and VIII). The indictment alleged
that, from at least 1990 to 1993, petitioner engaged in acts of forcible
sexual relations, abusive sexual contact, and aggravated sexual assault
against women who were employed by the Choctaw Nation. Pet. App. 1a-3a.
Those acts were alleged to have occurred at the Choctaw Nation Tribal Complex,
which is located on land that the United States holds in trust for the Choctaw
Nation. The Tribal Complex serves as the headquarters for the Choctaw Nation,
and between 60 and 70 employees of the Choctaw Nation work there. The Choctaw
Nation also operates bingo games at the Tribal Complex. Pet. App. 3a, 40a.
Petitioner moved to dismiss the indictment. He contended that the United
States did not have jurisdiction to prosecute him because the land on which
the alleged offenses occurred is not Indian country under 18 U.S.C. 1151.
He argued that the land on which the Choctaw Nation Tribal Complex is located
was never validly taken into trust by the Secretary of the Interior, and,
in any event, that land held by the Secretary in trust for an Indian Tribe
outside of a formal reservation cannot constitute Indian country. The district
court denied petitioner's motion. Pet. App. 38a-52a.
The case proceeded to trial. The jury found petitioner guilty on one count
of aggravated sexual abuse (Count II) and two counts of abusive sexual contact
(Counts I and VI). The jury found petitioner not guilty on four other counts.
Pet. App. 3a.2
3. The court of appeals affirmed petitioner's convictions and sentences.
The court held, inter alia, that the United States had jurisdiction to prosecute
petitioner. Pet. App. 3a-19a.
First, the court of appeals held that the Choctaw Nation Tribal Complex,
the place where petitioner's offenses occurred, is within Indian country
for purposes of 18 U.S.C. 1151. Pet. App. 4a-17a. The court rejected petitioner's
argument that, because the land on which the Tribal Complex is located is
not within a formally recognized reservation, the land cannot constitute
Indian country. The court noted that this Court has considered two criteria
in determining whether lands that are not within such a formal reservation
are Indian country under Section 1151: whether the lands have been "validly
set apart for the use of Indians as such," and whether the lands are
"under the superintendence of the [federal] Government." Oklahoma
Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991);
accord Native Village of Venetie, 522 U.S. at 527. The court concluded that
the land at issue here, which the United States acquired and holds in trust
for the Choctaw Nation, satisfies both criteria.
Second, the court of appeals held that the Secretary of the Interior has
the authority under 25 U.S.C. 465 to acquire lands to be held in trust by
the United States for the benefit of an Indian Tribe. Pet. App. 17a-19a.
The court rejected petitioner's contention that Section 465 is an unconstitutional
delegation of legislative authority. The court explained that the text and
purposes of the Indian Reorganization Act, of which Section 465 is a part,
provide standards to guide the Secretary's discretion: The text of the Act
states that the lands are to be acquired "for Indians," and the
purposes of the Act include "rehabilitating the Indian's economic life"
and "developing the initiative destroyed by . . . oppression and paternalism."
Pet. App. 18a.
ARGUMENT
The decision of the Tenth Circuit is correct on both questions presented
by the petition. Congress, in the Indian Reorganization Act of 1934, 25
U.S.C. 461 et seq., vested in the Secretary of the Interior the authority
to acquire lands to be held by the United States in trust for the benefit
of Indian Tribes. This Court has recognized trust lands as Indian country
for purposes of 18 U.S.C. 1151, whether or not they are within the external
boundaries of a formally recognized reservation. Neither aspect of the Tenth
Circuit's decision conflicts with any decision of this Court or of any other
court of appeals. This Court's review is therefore not warranted.
1. Petitioner urges (Pet. 9-20) the Court to resolve a purported conflict
among the circuits concerning the constitutionality of 25 U.S.C. 465. But
no such conflict exists. In this case, the court of appeals held that Section
465 does not violate the non-delegation doctrine. Petitioner does not identify
any extant decision that holds otherwise.3
a. Petitioner asserts (Pet. 13) that the decision below conflicts with the
"reasoning" of the Eighth Circuit in South Dakota v. United States
Department of the Interior, 69 F.3d 878 (1995). As petitioner acknowledges
(Pet. 12), however, this Court granted the government's petition for a writ
of certiorari in the South Dakota case, vacated the Eighth Circuit's judgment,
and directed that the matter be remanded to the Secretary of the Interior
for reconsideration of his administrative decision. Department of the Interior
v. South Dakota, 519 U.S. 919 (1996); see South Dakota v. United States
Dep't of the Interior, 106 F.3d 247 (8th Cir. 1996) (recalling the mandate,
vacating the judgment, and remanding to the Secretary). The Eighth Circuit's
"reasoning" is, consequently, not embodied in any valid judgment
or decision. See O'Connor v. Donaldson, 422 U.S. 563, 577-578 n.12 (1975)
("Of necessity our decision vacating the judgment of the Court of Appeals
deprives that court's opinion of precedential effect.").
This case thus does not present a circuit conflict-i.e., a "conflict
with the decision of another United States court of appeals on the same
important matter," Sup. Ct. R. 10(a) (emphasis added)-that merits this
Court's review. This Court reviews "judgment[s], decree[s], or order[s]"
of lower courts, not the reasoning upon which such judgments, decrees, or
orders are based. 28 U.S.C. 2106. And there is no judgment of any court
that rests on a holding, contrary to the Tenth Circuit's holding here, that
25 U.S.C. 465 violates the non-delegation doctrine.4
b. In any event, the Eighth Circuit's reasoning in its vacated South Dakota
decision is contrary to this Court's non-delegation jurisprudence. The text,
structure, and purposes of the Indian Reorganization Act of 1934, of which
25 U.S.C. 465 is a part, provide significant guidance for the Secretary
of the Interior's exercise of his discretion to acquire lands to be held
in trust for the benefit of Indian Tribes. Section 465 consequently is fully
consistent with the non-delegation doctrine. The Tenth Circuit so recognized
in this case.
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 Congress
clearly delineates the general policy, the public agency which is to apply
it, and the boundaries of this delegated authority." Mistretta v. United
States, 488 U.S. 361, 372-373 (1989) (quoting American Power & Light
Co. v. SEC, 329 U.S. 90, 105 (1946)).
Although "in 1935 [the Court] struck down two delegations 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
Control] Act"); National Broadcasting Co. v. United States, 319 U.S.
190 (1943) (upholding a statute authorizing the Federal Communications Commission
to regulate broadcasting according to the "public interest, convenience,
or necessity").
The Court has explained that such terms "need not be tested in isolation."
American Power & Light Co., 329 U.S. at 104. Instead, the terms may
derive content from "the purpose of the Act, its factual background
and the statutory context in which they appear." Ibid.; see, e.g.,
Lichter, 334 U.S. at 785 (in considering whether Congress had constrained
the Price Administrator's discretion to recover "excessive profits,"
the Court considered "[t]he purpose of the Renegotiation Act and its
factual background").
Congress, in the Indian Reorganization Act, provided sufficient direction
to guide the Secretary of the Interior's acquisition of land under 25 U.S.C.
465. Section 465 states that "[t]he Secretary of the Interior is hereby
authorized, in his discretion, to acquire * * * any interest in lands, water
rights, or surface rights to lands * * * for the purpose of providing land
for Indians." It thus sets forth both the "general policy"
of Congress (i.e., that the federal government acquire land "for Indians")
and "the public agency which is to apply it" (i.e., the Secretary
of the Interior and his designees). Mistretta, 488 U.S. at 372-373. The
"boundaries of [the Secretary's] delegated authority," ibid.,
under Section 465 may be discerned in this case, as in the cases cited above,
in the purposes of the Act as a whole, its factual background, and the statutory
context. American Power & Light Co., 329 U.S. at 104.
Congress enacted the Indian Reorganization Act to promote Indian self-government
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 particularly concerned
with reversing the "disastrous" consequences of the 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).5 Congress identified "conserv[ing] and develop[ing] Indian
lands and resources" as one of the purposes of the Indian Reorganization
Act. 48 Stat. 984 (preamble).
The purposes and history of the Indian Reorganization Act significantly
inform the Secretary's exercise of his authority under Section 465. The
Secretary may acquire 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 restoring
the ancestral tribal land base. See, e.g., Mescalero Apache Tribe, 411 U.S.
at 155 & n.11, 157 (noting that the United States acted under Section
465 in making federal land available to a Tribe "for the purpose of
carrying on a business enterprise").
The Secretary of the Interior has recognized that Section 465 does not confer
boundless discretion. The Secretary has promulgated implementing regulations
that articulate specific factors, derived from Congress's purposes in the
Indian Reorganization Act and the Secretary's experience in administering
it, to guide the Secretary's exercise of his discretion to take lands into
trust for Tribes and individual Indians. See 25 C.F.R. Pt. 151.6 The regulations
set forth a "land acquisition policy," 25 C.F.R. 151.3, which
restricts acquisitions to 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(c)), 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(c)). By
setting out ascertainable standards that govern trust acquisition decisions,
the Secretary has not only observed, but has given concrete expression to,
the Indian Reorganization Act's limiting principles. Cf. Lichter, 334 U.S.
at 783 (recognizing that subsequent "administrative practices"
under a statute may demonstrate the "definitive adequacy" of the
terms of the statutory authorization).7
In sum, the court of appeals' decision in this case reflects a "practical
understanding that in our increasingly complex society * * * Congress simply
cannot do its job absent an ability to delegate power under broad general
directives." Mistretta, 488 U.S. at 372. The directive at issue here,
while to some extent "broad" and "general," nonetheless
is accompanied by ample statutory guidance for the Secretary's exercise
of his discretion. Moreover, in an area in which the Executive has historically
exercised broad authority, such as the supervision of lands occupied by
Indians,8 such directives are especially appropriate. Section 465 does not,
therefore, violate the non-delegation doctrine.
Section 465 has been in effect for more than 65 years, and the Secretary
has relied upon it over that period to acquire more than nine million acres
of land. See Pet. at 17, Department of the Interior v. South Dakota, 519
U.S. 919 (1996). Petitioner's contentions here call into question the status
of those lands, on which numerous Tribes have come to depend. Such lands
are often essential for tribal governmental and economic purposes, and the
lands at issue here have been used by the Choctaw Nation for those purposes.
Nothing in the practical experience under Section 465 suggests a basis for
its invalidation at this late date.
c. Petitioner further contends (Pet. 13-14) that the decision below conflicts
with Florida Department of Business Regulation v. United States Department
of the Interior, 768 F.2d 1248 (11th Cir. 1985), cert. denied, 475 U.S.
1011 (1986). Petitioner is mistaken.
In Florida Department of Business Regulation, various state agencies challenged
the Secretary's decision, pursuant to 25 U.S.C. 465, to acquire land to
be held in trust for the Seminole Indians. Noting that the Quiet Title Act,
28 U.S.C. 2409a, bars title challenges to trust or restricted Indian lands,
the court of appeals held that, once land has been transferred into trust
status, judicial review of the Secretary's decision to acquire the land
is impliedly forbidden under Section 702 of the Administrative Procedure
Act (APA), 5 U.S.C. 702. 768 F.2d at 1254. The court therefore held that
the APA did not waive the United States' sovereign immunity for purposes
of that case. Id. at 1254-1255. The court also held that the Secretary's
decision was unreviewable under Section 701(a)(2) of the APA, 5 U.S.C. 701(a)(2),
as a decision "committed to agency discretion by law." 768 F.2d
at 1255.9
As petitioner concedes (Pet. 14 n.5) and as the Eleventh Circuit expressly
noted, the state agencies in Florida Department of Business Regulation did
"not challenge the constitutionality of the Secretary's acts [i.e.,
acquiring trust lands] nor the constitutionality of the statute pursuant
to which he acted [i.e., 25 U.S.C. 465]." 768 F.2d at 1252.10 As a
consequence, the court of appeals had no occasion to address whether Section
465 is an unconstitutional delegation of legislative power. The Eleventh
Circuit's holding therefore poses no conflict with the Tenth Circuit's holding
in this case.11
2. Petitioner asserts (Pet. 22) that the decision below "deepen[s]"
a circuit conflict over whether Indian country, within the meaning of 18
U.S.C. 1151, encompasses tribal trust land that is not within the external
boundaries of a formal reservation. No such conflict exists. The Tenth Circuit's
resolution of the question is correct and consistent with the decisions
of this Court and other courts of appeals.
a. Historically, the term "Indian country" has been used to identify
land that, "[g]enerally speaking," is subject to the "primary
jurisdiction * * * [of] the Federal Government and the Indian tribe inhabiting
it." Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520,
527 n.1 (1998). In 1948, Congress enacted the statutory definition of Indian
country, which consists of "all land within the limits of any Indian
reservation," 18 U.S.C. 1151(a); "all dependent Indian communities,"
18 U.S.C. 1151(b); and "all Indian allotments, the Indian titles to
which have not been extinguished," 18 U.S.C. 1151(c).
Section 1151 reflects the two criteria that this Court "previously
* * * had held necessary for a finding of 'Indian country'": "first,
[the lands] must have been set aside by the Federal Government for the use
of the Indians as Indian land; second, they must be under federal superintendence."
Native Village of Venetie, 522 U.S. at 527. Prior to the enactment of Section
1151 in 1948, this Court had already found that reservation lands and allotments
satisfied those requirements. See, e.g., United States v. Pelican, 232 U.S.
442, 449 (1914) (Indian country includes individual Indian allotments held
in trust by the United States because they "remain[] Indian lands set
apart for Indians under governmental care"); Donnelly v. United States,
228 U.S. 243, 269 (1913) (Indian country includes lands within formal reservations).
Congress used the term "dependent Indian communities" in Section
1151(b) to codify this Court's understanding, as expressed in United States
v. McGowan, 302 U.S. 535 (1938), and United States v. Sandoval, 231 U.S.
28 (1913), that other lands, although not formally designated as a reservation,
may also possess the attributes of "federal set-aside" and "federal
superintendence" characteristic of Indian country. Native Village of
Venetie, 522 U.S. at 530; see, e.g., McGowan, 302 U.S. at 538-539 (Reno
Indian Colony land held in trust by the United States is Indian country);
Sandoval, 231 U.S. at 45-49 (same for Pueblo Indian lands).
Here, the court of appeals, consistent with Native Village of Venetie, held
that the trust lands at issue are "Indian country," within the
meaning of Section 1151, because they are "validly set-aside for the
tribe under the superintendence of the federal government." Pet. App.
11a. The court found it unnecessary to decide whether those lands are more
properly categorized as an informal reservation, under Section 1151(a),
or as a dependent Indian community, under Section 1151(b), because "no
matter which categorical label we choose to affix, the property in this
case, owned by the United States in trust for the Choctaw Nation, is Indian
Country." Ibid.12 The court recognized that this Court has used both
labels in engaging in essentially the same analysis of the Indian country
status of land that was neither a formal reservation nor an allotment. The
Court engaged in that analysis in Native Village of Venetie, 522 U.S. at
532-534, in considering whether the fee lands at issue were a dependent
Indian community under Section 1151(b), whereas the Court engaged in that
analysis in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe,
498 U.S. 505, 511 (1991), in considering whether the trust lands at issue
were an informal reservation under Section 1151(a). Contrary to petitioner's
assertion (Pet. 23), then, the court of appeals did not create a "fourth
category" of Indian country. Rather, the court recognized that the
trust lands at issue come within at least one of the three statutory categories,
because the trust lands possess the two characteristics of Indian country
reflected in Section 1151. See Native Village of Venetie, 522 U.S. at 527.
The court of appeals' decision is in accord with several decisions of this
Court holding or assuming that tribal trust lands were Indian country although
they were not part of a formal reservation. In Potawatomi, the Court concluded
that lands held in trust by the United States for the Tribe were "validly
set apart for the use of the Indians as such, under the superintendence
of the Government," and therefore were Indian country, with the consequence
that the State did not have the authority to tax sales of goods to tribal
members that occurred on those lands. 498 U.S. at 511. The Court specifically
rejected the contention that the tribal trust land was not Indian country
because it was not a reservation, noting that no "precedent of this
Court has ever drawn the distinction between tribal trust land and reservations
that Oklahoma urges." Ibid.13 See also Oklahoma Tax Comm'n v. Chickasaw
Nation, 515 U.S. 450, 452-453 & n.2 (1995) (treating tribal trust lands
as Indian country); Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S.
114, 123-125 (1993) (same); United States v. John, 437 U.S. 634, 649 (1978)
(observing that "[t]here is no apparent reason why these lands, which
had been purchased [by the United States] in previous years for the aid
of those Indians, did not become a 'reservation,' at least for purposes
of federal criminal jurisdiction"); McGowan, 302 U.S. at 539.
Nor is there any conflict between the decision below and the decisions of
other circuits. The courts of appeals have consistently rejected claims
that trust land that is not part of a formal reservation is not Indian country.
See, e.g., United States v. Driver, 945 F.2d 1410, 1415 (8th Cir. 1991),
cert. denied, 502 U.S. 1109 (1992); Langley v. Rider, 778 F.2d 1092, 1095
(5th Cir. 1985); cf. United States v. Cook, 922 F.2d 1026, 1031 (2d Cir.)
(land owned by Indians but supervised by the United States), cert. denied,
500 U.S. 941 (1991). See generally Narragansett Indian Tribe v. Narragansett
Elec. Co., 89 F.3d 908, 920 (1st Cir. 1996) ("[T]he vast majority of
cases we have found which analyze what constitutes a dependent Indian community
since § 1151(b) was enacted find there is such a community if the land
is held in trust * * * or as settlement lands.").14
No question of the status of trust lands as Indian country was presented
in United States v. Stands, 105 F.3d 1565 (8th Cir. 1997), the only decision
that petitioner claims (Pet. 21-22) to conflict with the decision below.
Stands concerned the status of an individual Indian allotment, which the
court of appeals held to be Indian country. 105 F.3d at 1574; see ibid.
(observing that trial testimony concerning "trust land" was "essentially
irrelevant to the question at hand"). In passing, the court stated,
without analysis, that "[f]or jurisdictional purposes, tribal trust
land beyond the boundaries of a reservation is ordinarily not Indian country."
Id. at 1572. But the court also acknowledged that "[i]n some circumstances,
off-reservation tribal trust land may be considered Indian country."
Id. at 1572 n.3. The former statement is mere dictum-not what the court
actually "held," as petitioner erroneously asserts (Pet. 21)-and,
in any event, is unsupported by the Eighth Circuit's own precedents. See,
e.g., Driver, 945 F.2d at 1415; United States v. Azure, 801 F.2d 336, 338-339
(1986); United States v. South Dakota, 665 F.2d 837, 839-843 (1981), cert.
denied, 459 U.S. 823 (1982); see also, e.g., Potawatomi, 498 U.S. at 511.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
WILLIAM B. LAZARUS
ETHAN G. SHENKMAN
LISA E. JONES
Attorneys
APRIL 2000
1 The Major Crimes Act was amended in 1948 as part of the codification of
the term "Indian country."
2 The district court dismissed one count (Count VIII) before trial on the
government's motion. Gov't C.A. Br. 3.
3 As an initial matter, there is reason to question whether a defendant,
in a prosecution under 18 U.S.C. 1152 or 18 U.S.C. 1153 for an offense allegedly
committed on tribal trust land, should be entitled to challenge whether
the land was validly taken into trust by the United States. In the Quiet
Title Act, 28 U.S.C. 2409a, Congress has barred challenges to the United
States' title to land held in trust for Indians. See 28 U.S.C. 2409a(a);
United States v. Mottaz, 476 U.S. 834, 842-843 & n.6 (1986). Moreover,
this case would be an especially inappropriate vehicle for considering the
Indian country status of lands such as those at issue here, since the lands
on which petitioner committed the offenses served as the seat of government
for the Choctaw Nation and since petitioner was the Principal Chief of the
Choctaw Nation during the time of the offenses.
4 Petitioner suggests (Pet. 12) that the Court vacated the judgment in South
Dakota not because the Court disagreed with the Eighth Circuit's reasoning
on the non-delegation issue, but because the Secretary of the Interior had
issued new regulations governing acquisitions under Section 465. It makes
no difference, however, why the Court vacated the Eighth Circuit's judgment.
It is the fact of vacatur, for whatever reason, that renders the judgment
(and therefore the reasoning) of the court of appeals in South Dakota without
any continuing effect.
5 The General Allotment Act, together with similar legislation enacted by
Congress in the late Nineteenth Century, sought to allot tribal lands to
individual members and to make available any remaining lands for sale to
non-Indian settlers. See County of Yakima v. Confederated Tribes & Bands
of Yakima Indian Nation, 502 U.S. 251, 253-254 (1992); see also United States
v. Celestine, 215 U.S. 278, 290 (1909) (observing that the General Allotment
Act embodied a congressional policy "which look[ed] to the breaking
up of tribal relations," "put[ting] an end to tribal organization,"
abolishing reservations, and "establishing of the separate Indians
in individual homes").
6 The initial regulations were promulgated in 1980, after the land at issue
here was taken into trust. The regulations were amended in 1996. See note
9, infra.
7 Congress has revisited the Indian Reorganization Act on several occasions
since the Secretary's promulgation of the land acquisition regulations.
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)-(c), 104 Stat. 207; Indian Reorganization Act
Amendments of 1988, Pub. L. No. 100-581, Title I, § 101, 102 Stat.
2938; see also Indian Land Consolidation Act, 25 U.S.C. 2201 et seq. (extending
the reach of 25 U.S.C. 465 to all Tribes). Congress has not expressed any
disagreement with the Secretary's understanding of his authority under 25
U.S.C. 465 to acquire land in trust for Tribes and individual Indians.
8 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).
9 The United States now takes the position that review is available under
the APA of the Secretary's decisions to acquire land in trust, if review
is sought before the United States actually takes the land into trust for
that purpose. See Pet. at 24-25, Department of the Interior v. South Dakota,
519 U.S. 919 (1996), (No. 95-1956); see also 61 Fed. Reg. 18,082 (1996)
(promulgating a regulation, now codified at 25 C.F.R. 151.12, to provide
an opportunity for judicial review before land is taken into trust).
10 Petitioner nonetheless asserts (Pet. 14 n.5) that the Eleventh Circuit
concluded that 25 U.S.C. 465 "confers standardless authority on the
Executive to acquire land." But the Eleventh Circuit did not hold that
Section 465 confers standardless authority on the Secretary of the Interior.
Rather, the court held that Section 465 grants the Secretary broad discretion
that is not judicially reviewable under the APA. That decision does not
purport to address the constitutionality of Section 465.
11 As petitioner notes, the United States recently filed a petition for
a writ of certiorari in American Trucking Associations v. United States
Environmental Protection Agency, 195 F.3d 4 (D.C. Cir. 1999) (holding that
Section 109 of the Clean Air Act, 42 U.S.C. 7409, as interpreted by the
EPA, is an unconstitutional delegation of legislative power), petition for
cert. pending sub nom. Browner v. American Trucking Ass'ns, No. 99-1257
(filed Jan. 27, 2000). There is no need for the Court to hold the petition
in this case pending the disposition of the petition in American Trucking.
The two cases involve different statutes, different agencies, and different
governmental programs; this case arises in the unique context of a challenge
by a tribal member to the United States' title to lands held in trust for
Indians. See pp. 3, 6 note 3, supra.
12 The Eighth Circuit has taken a similar approach. See United States v.
Azure, 801 F.2d 336, 339 (1986) (holding that, because a house located on
trust land that is not part of a formal reservation is "part of either
a de facto reservation or a dependent Indian community," the "house
is located in Indian country"); cf. Langley v. Ryder, 778 F.2d 1092,
1095 (5th Cir. 1985) ("[W]hether lands are merely held in trust for
the Indians or whether the lands have officially been proclaimed a reservation,
the lands are clearly Indian country.").
13 Petitioner erroneously contends (Pet. 26) that the Court's ruling in
Potawatomi on the Indian country status of the trust lands was dictum, asserting
that 25 U.S.C. 465 prevents a State from taxing sales to tribal members
on trust lands, whether or not the lands are Indian country. Petitioner
misunderstands the provision of Section 465 that states that "such
lands or rights [held by the United States in trust for Indians] shall be
exempt from State and local taxation." The provision exempts only the
lands (or rights) themselves from state taxation. It does not prevent the
imposition of a state sales tax on goods sold on the lands. See Mescalero
Apache Tribe, 411 U.S. at 155-158. The Potawatomi Court therefore understood
that the question in that case turned on, inter alia, whether the locus
of the sale was in Indian country.
14 Petitioner suggests (Pet. 24-25) that this case is distinguishable because
the trust lands are used for tribal government and tribal business purposes,
rather than for tribal housing. But petitioner cites no case resting on
any such distinction. To the contrary, the trust lands that the Court held
to be Indian country in Potawatomi were used for tribal business purposes.
See 498 U.S. at 507, 511. Indeed, the fact that the trust lands at issue
are the seat of the tribal government supports the conclusion that those
lands are Indian country, and thus are subject to the primary criminal jurisdiction
of the United States and the Tribe, rather than the State.