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State of South Dakota, County of Roberts, Sisseton v. United States Department of the Interior

February 3, 2011


The opinion of the court was delivered by: Roberto A. Lange United States District Judge



Plaintiffs State of South Dakota, County of Roberts, Sisseton School District, City of Sisseton, and Wilmont School District (collectively "Plaintiffs")filed this action seeking declaratory and injunctive relief from the Department of the Interior's decision to take four parcels of land into trust for the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation ("Tribe"). Defendants United States Department of the Interior; Larry Echo-Hawk, Assistant Secretary of Indian Affairs, United States Department of the Interior; Michael Black, Great Plains Regional Director, BIA; and Russell Hawkins, Sisseton Agency Superintendent (collectively "Defendants") moved to dismiss Plaintiffs' claims or, in the alternative, for summary judgment (Doc. 6). Plaintiffs then filed a cross-motion for summary judgment (Doc. 10). For the reasons explained below, this Court grants Defendants' Motion for Summary Judgment.


In 2001, the Sisseton-Wapeton Oyate Tribal Council submitted applications to the Bureau of Indian Affairs ("BIA") requesting that the Secretary of the Interior ("Secretary") take four parcels of land into trust for the Tribe. (Doc. 6-1, Doc. 13). The parcels of land are located in Roberts County and are known as the Gardner (200 acres), German (80 acres), Peters (80 acres), and Smith (6 acres) parcels. (Doc. 6-1, Doc. 13). In the applications, the Tribe requested that the BIA place the Gardner, German, and Peters parcels in trust for agricultural and land consolidation purposes. (A.R. 3104, 4332, 5586). The Tribe sought to have the Smith parcel placed in trust for land consolidation purposes only. (A.R. 1911-12).

The initial decision concerning whether to take the land into trust fell to Russell Hawkins, the BIA's Sisseton Agency Superintendent ("Superintendent Hawkins"). (Doc. 6-1, Doc. 13). Superintendent Hawkins is a life-long member of the Tribe and served multiple terms as the Tribe's chairman before becoming the BIA's Sisseton Agency Superintendent. (Doc. 12, Doc. 15). In 2002, Superintendent Hawkins notified Plaintiffs and other local governments that the BIA had received the Tribe's applications and was considering them. (Doc. 6-1, Doc. 13). Plaintiffs provided comments opposing the trust acquisitions and requested that Superintendent Hawkins recuse himself from the case because of concerns of bias. (A.R. 1276).

Superintendent Hawkins sent a memorandum to his supervisor, the Regional Director ("RD"), requesting the RD's opinion on whether Hawkins could conduct the initial review of the trust applications. (A.R. 1232). In a November 22, 2006 letter, the RD wrote that Plaintiffs' allegations of bias held "no validity whatsoever" and that Superintendent Hawkins could properly consider the trust applications. (A.R. 1111-12). The RD further noted that no law or regulation prohibits tribal members from working as BIA employees on their tribe's reservation, and that as long as the Tribe met the regulatory criteria for trust acquisitions, Superintendent Hawkins could approve the applications. (A.R. 1111-12). In January and February of 2007, Superintendent Hawkins issued decision letters rejecting Plaintiffs' allegations of bias and approving the acceptance of the Smith, Peters, Gardner, and German parcels into trust for the Tribe. (Doc. 6-1, Doc. 13, A.R. 3772).

Plaintiffs appealed Superintendent Hawkins' decisions to the RD. (Doc. 6-1, Doc. 13). Because the RD previously had advised Superintendent Hawkins that he could consider the trust applications, Plaintiffs asserted that the RD had "prejudged" an important issue and requested that the RD and the RD's office recuse themselves from the case. (A.R. 688). In a letter to Plaintiffs, the RD declined to recuse herself and stated that Plaintiffs had failed to allege any specific facts supporting their claim of bias. (A.R. 649). The RD also explained that her independent, objective review of the merits of Superintendent Hawkins's decisions would "cure any possible taint of bias." (A.R.649).

In March of 2008, the RD affirmed Superintendent Hawkins' decisions with regard to each of the four parcels. (Doc. 6-1, 13). In doing so, the RD concluded that "[t]he state has not submitted any evidence that shows decision makers of the BIA have not followed existing federal regulations or federal laws when making a decision on fee to trust transactions." (A.R. 611) (emphasis in original). Plaintiffs then appealed the matters to the Interior Board of Indian Appeals ("IBIA"). The IBIA, on December 30, 2009, affirmed the RD's decisions. (Doc. 6-1, Doc. 13). The IBIA's opinion considered and rejected both Plaintiffs' substantive claims and their claims of bias.

Plaintiffs now contend that the trust acquisition was unlawful for a number of reasons. First, Plaintiffs challenge the constitutionality of § 5 of the Indian Reorganization Act ("IRA"), which provides the Secretary of the Interior with the authority to acquire trust land for Indian tribes. Plaintiffs claim that § 5 is an unconstitutional delegation of legislative power and that it operates to deprive South Dakota of a republican form of government. Next, Plaintiffs argue that Superintendent Hawkins and the RD were biased and that the BIA as a whole is biased when considering trust applications. Finally, Plaintiffs argue that the BIA's decision to take the parcels of land into trust was arbitrary and capricious and therefore should be set aside under the Administrative Procedure Act ("APA").*fn1


A. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." A party opposing a properly made and supported motion for summary judgment "may not rely merely on allegations or denials in its own pleading; rather, its response must - by affidavits or as otherwise provided in this rule - set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). "To survive summary judgment, a plaintiff must substantiate his allegations with enough probative evidence to support a finding in his favor." Adam v. Stonebridge Life Ins. Co., No. 09-3014, 2010 U.S. App. LEXIS 14492, at *8 (8th Cir. July 15, 2010) (quoting Roeben v. BG Excelsior Ltd. P'ship, 545 F.3d 639, 642 (8th Cir. 2008)). In a determination of whether summary judgment is warranted, the evidence is "viewed in the light most favorable to the nonmoving party." True v. Nebraska, No. 09-1788, 2010 U.S. App. LEXIS 14007, at *3 (8th Cir. July 9, 2010 (quoting Cordry v. Vanderbilt Mortgage & Fin., Inc., 445 F.3d 1106, 1109 (8th Cir. 2006)). "If opposing parties tell two different stories, the court must review the record, determine which facts are material and genuinely disputed, and then view those facts in a light most favorable to the non-moving party, as long as those facts are not so blatantly contradicted by the record that no reasonable jury could believe them. Id. (internal quotations omitted).In this case, neither Plaintiffs nor Defendants point to any genuine dispute of material facts, and both Plaintiffs and Defendants have filed cross-motions for summary judgment.

B. Constitutionality of Section 5 of the IRA

Section 5 of the IRA provides in pertinent part that:

The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians. *** Title to any lands or rights acquired pursuant to this Act . . . shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempted from State and local taxation. 25 U.S.C. § 465. Plaintiffs claim that § 5 of the IRA is an unconstitutional delegation of legislative power because it fails to establish adequate standards by which to guide the BIA's decision concerning the taking of land into trust.*fn2 The United States Court of Appeals for the Eighth Circuit specifically addressed this argument in South Dakota v. U.S. Dep't of Interior, 423 F.3d 790 (8th Cir. 2005) (South Dakota II).*fn3 In South Dakota II, the Secretary exercised its authority under § 5 of the IRA and accepted 91 acres of land into trust for the Lower Brule Sioux Tribe. Id. at 794. The State and other plaintiffs raised several arguments in opposition to the Secretary's decision, including a non-delegation challenge identical to the one Plaintiffs make in the present case.*fn4 The Eighth Circuit explained that "Congress may delegate its legislative power if it lays down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform." Id. at 795. (citation and internal marks omitted). The Court then rejected the contention that § 5 failed to delineate any boundaries governing the Secretary's trust acquisition decisions, instead finding that: an intelligible principle exists in the statutory phrase 'for the purpose of providing land for Indians' when it is viewed in the statutory and historical context of the IRA. The statutory aims of providing lands sufficient to enable Indians to achieve self-support and ameliorating the damage resulting from the prior allotment policy sufficiently narrow the discretionary authority granted to the Department.

Id. at 799.

Other courts considering non-delegation challenges to § 5 have reached the same conclusion. See Michigan Gaming Opposition v. Kempthorne, 525 F.3d 23, 33 (D.C. Cir. 2008) (agreeing with the First, Eighth, and Tenth Circuits that § 5 is not an unconstitutional delegation of legislative authority); Carcieri v. Kempthorne, 497 F.3d 15, 43 (1st Cir. 2007) ("We hold that section 465 is not an unconstitutional delegation of legislative authority."); United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999) (rejecting argument that § 5 unconstitutionally "delegates standardless authority to the Secretary"); Cent. New York Fair Bus. Ass'n v. Salazar, Nov. 608-CV-660, 2010 WL 786526 at *4 (N.D.N.Y. Mar. 1, 2010) ("Every court to consider a delegation challenge to § 465 has rejected it and found that agency regulations sufficiently limit the Secretary of the Interior's discretion.") (citations omitted). Accordingly, this Court finds that § 5 of the IRA is not an unconstitutional delegation of legislative authority.

Plaintiffs also argue that § 5 of the IRA deprives them of a republican form of government because Plaintiffs lose jurisdiction and authority over land that the BIA takes into trust for the Tribe. Article IV, § 4 of the United States Constitution contains the "Guarantee Clause," providing that the "United States shall guarantee to every state in this union a republican form of government. . ." U.S. Const. art. IV § 4. Claims under the Guarantee Clause usually are considered political questions, and courts rarely find them justiciable. See New York v. United States, 505 U.S. 144, 184 (1992) ('[T]he guarantee clause has been an infrequent basis for litigation throughout our history. In most of the cases in which the Court has been asked to apply the Clause, the Court has found the claims presented to be non-justiciable under the 'political question' doctrine.") (citations omitted); see also Deer Park Indep. Sch. Dist. v. Harris County Appraisal Dist., 132 F.3d 1095, 1099 (5th Cir. 1998) ("[T]he Supreme Court has held that challenges to Congressional action under the Guarantee Clause are not justiciable.") (citations omitted); 13C Wright et. al. Federal Practice and Procedure § 3534.1 (3d 2008) ("[I]t has been well established that political questions are presented by challenges to either congressional or state action grounded on the constitutional mandate in Article IV, § 4, that the United States shall guarantee every state a "Republican Form of Government."). Plaintiffs' Guarantee Clause challenge to § 5 of the IRA presents a non-justiciable political question.

Even if Plaintiffs' Guarantee Clause claim was justiciable, ยง 5 of the IRA does not violate the Guarantee Clause. The Supreme Court defined a Republican Form of Government in Duncan ...

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