One of the most important provisions of the Indian Reorganization Act of 1934 is Section 5, which provides the Secretary of the Interior with authority to take land into trust for tribes. In 1995, the State of South Dakota challenged the Secretary’s authority to acquire land into trust for the Lower Brule Sioux Tribe. In a surprising turn, the Eighth Circuit found that Section 5 violated the non-delegation doctrine of the U.S. Constitution and that the Secretary lacked authority to acquire land into trust for the Tribe. South Dakota v. U.S. Dep’t of the Interior, 69 F.3d 878 (1995). The non-delegation doctrine is legal principle that the Supreme Court fashioned in the 1930s to limit Congress’ ability to delegate broad and standardless legislative power. The Eighth Circuit premised its ruling in part on the lack of a federal waiver of sovereign immunity that would allow aggrieved parties to seek judicial review of tribal trust acquisitions.
In response to the Eight Circuit’s ruling, the Interior Department promulgated a new regulation requiring publication of notice of intent to take land into trust and giving a 30-day window of opportunity for judicial challenges to agency decisions to acquire land in trust. The United States then petitioned the Supreme Court for review of the Eighth Circuit’s decision. The Supreme Court granted the petition and vacated the Eight Circuit’s decision with instructions to vacate the District Court’s decision and remand the matter back to the Secretary. 519 U.S. 919 (1996).
Subsequently, the Tribe submitted a new trust application and the Interior Department again approved the Tribe’s request. South Dakota again challenged the Secretary’s authority to acquire lands into trust under Section 5 of the IRA. In 2004, a federal district court upheld Interior’s decision and rejected South Dakota’s constitutional and statutory challenges. The State again appealed to the Eighth Circuit urging it to hold, as it previously had, that Section 5 violated the non-delegation doctrine. Not only did the Eighth Circuit reject that invitation and uphold the District Court’s decision, the U.S. Supreme Court denied the State’s petition for certiorari.
Since then, district and circuit courts have consistently rejected non-delegation claims, and the Supreme Court refused to hear the issue in 2008.
South Dakota v. Department of Interior, 69 F.3d 878 (1995) decision.