Michigan Gambling Opposition v. Kempthorne

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2007 Decided April 29, 2008

No. 07-5092

MICHIGAN GAMBLING OPPOSITION,
A MICHIGAN NON-PROFIT CORPORATION,
APPELLANT

v.

DIRK KEMPTHORNE, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF THE UNITED STATES
DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 05cv01181)

John J. Bursch argued the cause for appellant. With him on
the briefs were Rebecca A. Womeldorf, Daniel P. Ettinger, and
Joseph A. Kuiper.

Aaron P. Avila, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
was Elizabeth A. Peterson, Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
 2

Nicholas C. Yost, Seth P. Waxman, Edward C. DuMont,
Demian S. Ahn, and Conly J. Schulte were on the brief for
appellee Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians.

Before: GINSBURG, ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion dissenting in part by Circuit Judge BROWN.

PER CURIAM: In 2005, the Assistant Secretary for Indian
Affairs of the Bureau of Indian Affairs of the Department of
Interior decided to take 147 acres of land in Wayland Township,
Michigan, into trust for use by the Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians (“the Tribe”), which plans to
construct and operate a Class III casino. This decision followed
federal recognition of the Tribe in 1998. A non-profit Michigan
membership organization — Michigan Gambling Opposition
(“MichGO”) — sued the Secretary of the Interior, the Bureau of
Indian Affairs (“BIA”) and the National Indian Gaming
Commission (“NIGC”) (collectively the “DOI”) alleging that
the DOI’s approval of the proposed casino violated the National
Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et
seq., and that section 5 of the Indian Reorganization Act
(“IRA”), 25 U.S.C. § 465, was unconstitutional. The district
court granted summary judgment to the DOI, and MichGO
appeals. We hold that the DOI did not violate NEPA and that
section 5 of the IRA is not an unconstitutional delegation of
legislative authority. Accordingly, we affirm.

I.

The Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians has lived in Michigan continuously since it emerged as
 3

a recognizable unit under Chief Match-E-Be-Nash-She-Wish at
the turn of the nineteenth century. At that time, the Tribe lived
near Kalamazoo, Michigan, along the Kalamazoo River. The
Tribe was party to several treaties with the United States, and it
was adversely affected by several others, with the result that it
lost all of its lands near Kalamazoo by the middle of the
nineteenth century. It avoided being moved to reservations
further west by taking asylum with a church mission in central
Michigan, near the town of Bradley. Around the end of the
nineteenth century, land in the church mission was distributed
to individual members of the Tribe. This distribution was in
accord, although not directly part of, broader federal policies of
the time, which emphasized breaking up tribal holdings and
distributing parcels of land to individuals. See Judith V.
Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1, 10-12
(1995). Most of the land distributed to individual members of
the Tribe was lost because of failure to pay property taxes, as
was the case for large portions of the land distributed under
broader federal policies, id. at 12, but members of the Tribe
continued to reside around the former church mission.

The Tribe, now numbering 277 members, secured federal
acknowledgment of its existence in 1998, under the BIA’s
formal recognition procedure. The Tribe and BIA plan for BIA
to acquire land as a reservation for the Tribe, using the Secretary
of the Interior’s authority under section 5 of the IRA to take
land into trust for Indians, 25 U.S.C. § 465. They have
identified a 147-acre tract of land (“the Bradley property”) that
they find suitable for this purpose. The Bradley property is
located in Wayland township (population 3,013), a largely rural
area about twenty-five miles north of Kalamazoo and thirty
miles south of Grand Rapids. Seeking to advance the economic
well-being of its members, who suffer from unemployment rates
approximately six times the average of their surrounding area,
and to promote economic self-sufficiency, the Tribe plans to use
 4

the Bradley property to host a Class III gambling casino. The
planned facility would comprise approximately 99,000 square
feet of gambling, with additional floor space devoted to
restaurants, stores, and offices. The Tribe expects 8,500 visitors
per day.

As BIA studied the Tribe’s proposal, it prepared an
environmental assessment (“EA”) under the auspices of NEPA,
42 U.S.C. § 4321 et seq. The EA analyzed the effects the
proposed casino would have on area wildlife, air and water;
farming in the vicinity; and nearby communities. One of the
issues addressed by the EA was the possibility that the casino
would increase local traffic. The EA used the U.S. Department
of Transportation (“DOT”) grading system to assess the severity
of potential traffic delays: “Level Of Service A” means free
passage, while “Level of Service F” means a driver can expect
to wait eighty seconds or more before passing through an
unsignaled intersection. The EA defined acceptable traffic
delays to be “Level of Service C” or better. However, because
Michigan does not grade intersections, the BIA concluded that
approval by the Michigan Department of Transportation
(“MDOT”) would also qualify an intersection’s traffic levels as
acceptable.

Applying the DOT classification system, a study
commissioned as part of the EA identified two local
intersections where increased casino-related traffic would result
in Level of Service F at certain times. These intersections sit at
the junction of US-131, a limited access highway that runs north
and south along the west edge of the Bradley property, and
Michigan-179 (129th Avenue), a two-lane road that runs east
and west along the south edge of the Bradley property. The
study predicted that the casino would cause heavy traffic at the
right turn from the northbound exit onto 129th Avenue
(eastbound) and at the left turn from the southbound exit onto
 5

129th Avenue (eastbound). Resulting delays would be
particularly severe during afternoon rush hours.

To mitigate the traffic impact of the casino, the EA
recommended construction of a new, dedicated right-turn lane
for the northbound intersection and adding a four-way stop to
the southbound intersection. It acknowledged the southbound
left turn would still operate during peak periods at Level of
Service F, so that a traffic light might be necessary. Although
MDOT apparently will not commit to a traffic light based on
predictions of traffic volume, it apparently would approve a
dedicated right turn lane and a four-way stop.1

Having concluded that proposed measures would
sufficiently alleviate traffic delays and that other potential
problems identified in the EA would also be mitigated, the BIA
and the NIGC both issued Findings of No Significant Impact
(“FONSI”) with respect to the casino project and announced
their intent to acquire the Bradley property and allow the casino.

MichGO filed this lawsuit in June 2005, advancing four
claims. The first alleged that the preparation of a FONSI rather
than an environmental impact statement (“EIS”) violated NEPA.
The second and third alleged violations of the Indian Gaming
Regulatory Act (“IGRA”). The fourth alleged that the IRA is an

1
The EA relied on a September 25, 2001, letter from MDOT, which
approved the dedicated right-turn lane; this letter did not expressly
mention the four-way stop or any of the traffic study’s conclusions.
Letter from Robert Coy, Region Permit Agent, MDOT, to Marc Start,
URS Corporation (Sept. 25, 2001). However, a letter from MDOT to
the Tribe on February 12, 2002, cited the completed traffic study and
approved its recommendations, which included the four-way stop.
Letter from Robert Coy, Region Permit Agent, MDOT, to D.K.
Sprague, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians,
Gun Lake Tribe (Feb. 12, 2002).
 6

unconstitutional delegation of authority to the Secretary of the
Interior because there is no intelligible principle limiting its
discretion on what land to acquire and hold in trust. The Tribe
was allowed to intervene as a defendant. The district court
granted summary judgment to the DOI on February 23, 2007.
Mich. Gambling Opposition (MichGO) v. Norton, 477 F. Supp.
2d 1, 22 (D.D.C. 2007). MichGO appeals and our review is de
novo. Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C.
Cir. 2006). However, in view of Citizens Exposing Truth About
Casinos v. Kempthorne, 492 F.3d 460 (D.C. Cir. 2007),
MichGO does not pursue its IGRA claims. Appellant’s Reply
Br. 2 n.1.

II.

NEPA requires every agency proposing a “major Federal
action” to prepare a statement of its environmental impact if the
action will “significantly affect[] the quality of the human
environment.” 42 U.S.C. § 4332(C). Under regulations
promulgated by the Council on Environmental Quality (“CEQ”)
agencies must create procedures identifying “[s]pecific criteria
for and identification of those typical classes of action” that
require or do not require an EIS. 40 C.F.R. § 1507.3(b)(2). In
considering any particular proposed action, an agency must first
determine whether, under its own regulations, the proposal
would “[n]ormally require[] an [EIS]” or “[n]ormally [would]
not require either an [EIS] or an [EA].” Id. § 1501.4(a). If the
proposed action is not covered by either of these descriptions,
the agency should prepare an EA, and based on its conclusions,
decide whether to prepare an EIS. Id. §§ 1501.4(b)-(c). The
agency may conclude that an EIS is not necessary and instead
issue a FONSI, in which it must explain why there will be no
significant impact. Id. §§ 1501.4(e); 1508.13.
 7

A.
MichGO contends that the Tribe’s casino is large and
controversial, and that the DOI is thus required by law to
prepare an EIS. To support this contention, MichGO relies on
the 2005 “Checklist for Gaming Acquisitions,” distributed to
regional directors by the BIA, which provides that “[p]roposals
for large, and/or potentially controversial gaming establishments
should require the preparation of an EIS.”2 MichGO maintains
that 40 C.F.R. § 1501.4(a) requires an EIS to be performed if
mandated by internal DOI guidelines such as the Checklist.

The premise underlying MichGO’s contention is flawed.
Section 1501.4(a) does not make the Checklist binding on the
DOI. The CEQ does require each agency to “[d]etermine under
its procedures” whether a project is of a type that normally
requires an EIS. Id. § 1501.4(a). But it also specifies that these
procedures will be established pursuant to section 1507.3. Id.
Section 1507.3 sets out a specific process for developing the
relevant agency procedures; as part of this process, the CEQ
must approve the procedures before they are implemented. Id.
§ 1507.3(a). The DOI complied with these requirements when
it established its NEPA procedures, now codified in its manual.
DEP’T OF THE INTERIOR, DEPARTMENT MANUAL, Pt. 516, Chpt.
10 (May 27, 2004). These procedures do not encompass the
Checklist, which in any event does not appear to have been
approved by the CEQ as required by section 1507.3(a). The
manual does, however, include lists of activities that under its
procedures normally require or do not require an EIS or EA. Id.
Gaming activities are not included in these lists. In these
circumstances, the section 1501.4(b)-(c) process — EA
preparation followed by a decision on whether to prepare an EIS

2
OFFICE OF INDIAN GAMING MGMT., DEP’T OF THE INTERIOR,
C HECKLIST FOR GAMING A CQUISITIONS G AMING -R ELATED
ACQUISITIONS AND IGRA SECTION 20 DETERMINATIONS 10 (2005)
(“Checklist”).
 8

— is applicable. The DOI followed these procedures and
lawfully determined not to prepare an EIS on the basis of the
EA.3

Because we are unpersuaded that the Checklist is binding
on the DOI, we do not reach MichGO’s contention that the
casino project at issue is “large” and “controversial” within the
meaning of the Checklist.

B.
Alternatively, MichGO contends that it was arbitrary or
capricious for the DOI to issue a FONSI without having
prepared an EIS because two intersections would continue to
experience Level of Service F at certain times, even after
mitigation measures.4

A court reviews an agency’s FONSI or EIS under the
Administrative Procedure Act, 5 U.S.C. § 706, and “cannot
substitute [its] judgment for that of an agency if the agency’s
decision was ‘fully informed and well considered.’” Cabinet
Mountains Wilderness v. Peterson, 685 F.2d 678, 684 (D.C. Cir.
1982) (quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435
3
MichGO’s suggestion in its brief that the Checklist is binding
independent of 40 C.F.R. § 1501.4 is not appropriately developed and
thus not properly before the court. Schneider v. Kissinger, 412 F.3d
190, 200 n.1 (D.C. Cir. 2005). MichGO also maintains that ignoring
non-binding regulations is arbitrary and capricious, but this contention
is waived as it is raised only in the reply brief. Corson & Gruman Co.
v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990).
4
MichGO maintains in a footnote of its initial brief and in its Reply
Brief that increased traffic in the Village of Hopkins will constitute a
significant, unmitigated impact. We do not consider this argument.
“[A]bsent extraordinary circumstances . . . we do not entertain an
argument raised for the first time in a reply brief . . . or . . . a footnote.”
United States v. Whren, 111 F.3d 956, 958 (D.C. Cir. 1997).
 9

U.S. 519, 558 (1978)). If the agency decided to issue a FONSI,
it must either have concluded there would be no significant
impact or have planned measures to mitigate such impacts. A
court must review whether the agency:

(1) has accurately identified the relevant
environmental concern, (2) has taken a hard look at
the problem in preparing its EA, (3) is able to make
a convincing case for its finding of no significant
impact, and (4) has shown that even if there is an
impact of true significance, an EIS is unnecessary
because changes or safeguards in the project
sufficiently reduce the impact to a minimum.

TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006) (internal
quotations omitted).

The EA found that at least one intersection would
experience Level of Service F at certain times even after
mitigation measures. However, contrary to the assumption
underlying MichGO’s contentions, the EA’s definition of
acceptable traffic performance was not based solely on the
level-of-service classification. Rather, the EA noted that local
authorities had no standards for traffic intensity; thus the EA
deployed two separate indicators as proof of acceptable traffic
conditions: either Level of Service C or above or approval by
relevant local authorities. MDOT, the agency with jurisdiction
over these roads, found the traffic levels projected after the
DOI’s mitigation measures would be acceptable. It was not
inherently arbitrary or capricious for the DOI to rely on
MDOT’s assessment, cf. Coliseum Square Ass’n v. Jackson, 465
F.3d 215, 237 (5th Cir. 2006), and MichGO gives us no reason
to question that reliance. The DOI was thus justified in finding
that mitigation of the traffic impact was sufficient, and that an
EIS was unnecessary.
 10

III.

Article I of the Constitution provides that “[a]ll legislative
Powers herein granted shall be vested in a Congress of the
United States.” U.S. CONST. art I, § 1. In considering a
challenge to a delegation of power, “the test is whether
Congress has set forth ‘an intelligible principle to which the
person or body authorized to act is directed to conform.’”
TOMAC, 433 F.3d at 866 (quoting Whitman v. Am. Trucking
Ass'ns, 531 U.S. 457, 472 (2001) (alterations and internal
quotations omitted)). The Supreme Court has underscored that
“the general policy and boundaries of a delegation ‘need not be
tested in isolation’ . . . [as] the statutory language may derive
content from the ‘purpose of the Act, its factual background and
the statutory context.’” Id. (quoting Am. Power & Light Co. v.
SEC, 329 U.S. 90, 104 (1946)). Courts “have almost never felt
qualified to second-guess Congress regarding the permissible
degree of policy judgment that can be left to those executing or
applying the law.” Whitman, 531 U.S. at 474-75 (internal
quotations omitted).

MichGO contends that section 5 of the IRA is an
unconstitutional delegation of legislative power because, apart
from the DOI’s internal regulations, which cannot fill the void,
it is “completely devoid of intelligible standards to guide or
limit the Secretary’s discretion.” Appellant’s Br. at 35. We are
not convinced. An agency cannot “cure an unconstitutionally
standardless delegation of power by declining to exercise some
of that power,” Whitman, 531 U.S. at 473, as the district court
incorrectly suggested, MichGO, 477 F. Supp. 2d at 21-22. But
giving due consideration to the purpose and factual background
of the IRA and section 5’s statutory context, as the Supreme
Court instructs, see Am. Power & Light Co., 329 U.S. at 104,
and having due regard that “Congress is not confined to that
method of executing its policy which involves the least possible
 11

delegation of discretion,” Yakus v. United States, 321 U.S. 414,
425-26 (1944), we conclude the statute provides an intelligible
principle.5

Section 5 of the IRA authorizes the Secretary of the Interior
to obtain land “for Indians.”6 25 U.S.C. § 465. This court has

5
Hence the court has no occasion to address the Tribe’s contention
that the non-delegation doctrine is inapplicable because section 5 of
the IRA does not involve a delegation of legislative power.
6
Section 5 of the IRA provides in relevant part:

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.

For the acquisition of such lands, interests in lands,
water rights, and surface rights, and for expenses
incident to such acquisition, there is authorized to be
appropriated, out of any funds in the Treasury not
otherwise appropriated, a sum not to exceed $2,000,000
in any one fiscal year . . . .

...

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 . . . for which the land is
acquired, and such lands or rights shall be exempt from
State and local taxation.

25 U.S.C. § 465.
 12

not previously considered whether section 5 constitutes an
unconstitutionally standardless delegation of power. But on its
face, the delegation is no broader than other statutes, which the
Supreme Court has upheld, that direct agencies to act in the
“public interest,” Nat’l Broad. Co. v. United States, 319 U.S.
190, 216 (1943), or in a way that is “fair and equitable,” Yakus,
321 U.S. at 420, see also Whitman, 531 U.S. at 473-75.
Furthermore, the courts of appeals for the First, Eighth and
Tenth Circuits have rejected challenges contending that section
5 is an unconstitutional delegation. See Carcieri v. Norton, 497
F.3d 15, 41-43 (1st Cir. 2007) (en banc), cert. granted in part,
denied on non-delegation issue, 128 S. Ct. 1443 (2008); South
Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 799 (8th Cir.
2005); United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir.
1999). These courts have held “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.” This principle involves “providing lands
sufficient to enable Indians to achieve self-support and
ameliorating the damage resulting from . . . prior [federal
policy].” South Dakota, 423 F.3d at 799 (quoting 25 U.S.C. §
465); accord Carcieri, 497 F.3d at 42; Roberts, 185 F.3d at
1137.

Our review of the purpose and structure of the IRA
confirms that, as our sister courts have held, and contrary to the
view of our dissenting colleague, the statute provides an
intelligible principle rather than a tautology when it authorizes
the Secretary to acquire land “for the purpose of providing land
for Indians”: the Secretary is to exercise his powers in order to
further economic development and self-governance among the
Tribes. Cf. Dissenting Op. at 7-8. The Supreme Court has
noted that “[t]he intent and purpose of the [IRA] was to
rehabilitate the Indian’s economic life and to give him a chance
to develop the initiative destroyed by a century of oppression.”
 13

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 (1973)
(internal quotations omitted). This accords with the IRA’s
stated purpose of “conserv[ing] and develop[ing] Indian lands
and resources; . . . extend[ing] to Indians the right to form
business and other organizations; . . . establish[ing] a credit
system for Indians; . . . grant[ing] certain rights of home rule to
Indians; . . . and [effectuating] other purposes.” Pub. L. No. 383,
48 Stat. 984, 984 (1934).

In addition to section 5, the IRA includes numerous other
provisions addressing land use and economic development;
among other things, these extend tribal trusts indefinitely, 25
U.S.C. § 462; restore lands previously declared “surplus” to
those trusts, id. § 463; restrict land transfers from tribal
reservations, id. § 464; and provide federal appropriations to
support Indian economic development, id. § 470. This context
underscores section 5’s role as part of a broad effort to promote
economic development among American Indians, with a special
emphasis on preventing and recouping losses of land caused by
previous federal policies. The Supreme Court has
acknowledged this emphasis, explaining that the IRA’s passage
brought “an abrupt end” to the previous federal “policy of
allotment” that had led to individuals who were not American
Indians acquiring “over two-thirds of the Indian lands allotted.”
County of Yakima v. Confederated Tribes & Bands of Yakima
Indian Nation, 502 U.S. 251, 255 (1992). The Court also
emphasized that through the IRA Congress “[r]eturn[ed] to the
principles of tribal self-determination and self-governance
which had characterized” earlier federal policy. Id.

The standards revealed by examining the purpose and
structure of the IRA are confirmed by reviewing the broader
factual context of the statute. The IRA was enacted against a
backdrop of great concern over economic and social challenges
facing American Indians, and especially over the consequences
 14

of the federal government’s allotment policy, which had
resulted in many tribal lands being distributed to individuals
who then lost control of them, often because of fraud or inability
to pay taxes. Royster, 27 ARIZ. ST. L.J. at 12. By 1928, a report
commissioned by the Secretary of the Interior found that the
allotment policy had “destructive effects . . . on the economic,
social, cultural and physical well-being of the tribes.” Id. at 16.
As both the Supreme Court, Mescalero Apache Tribe, 411 U.S.
at 152, and circuit courts, South Dakota, 423 F.3d at 798;
Carcieri, 497 F.3d at 42, have acknowledged, the legislative
history of the IRA also underscores its purpose of addressing
economic and social challenges facing American Indians by
promoting economic development. See H.R. Rep. No. 73-1804,
at 6 (1934); S. Rep. No. 73-1080, at 1-2 (1934).7

There is nothing to suggest that section 5 is removed from
the overall IRA purpose of advancing economic development

7
The IRA’s provisions constitute one chapter in a long and
complicated history of interactions between the United States and
American Indians. Our dissenting colleague asserts a trust
relationship arises between the Indians and the United States only after
the Government acquires land for the Indians, Dissenting Op. at 6, but
this confuses the fiduciary relationship that arises because the United
States is to hold newly-acquired land “in trust” under section 5 of the
IRA, see Cobell v. Norton, 240 F.3d 1081, 1088 (D.C. Cir. 2001); see
also United States v. Wilson, 881 F.2d 596, 600 (9th Cir. 1989), with
the pre-existing “special relationship” that arose by virtue of the
Government’s historical relations with the Indians, see 1 FELIX R.
COHEN, COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 5.04[4][a]
(2005) (“HANDBOOK”). That unique history informs our
understanding of section 5 of the IRA; a statute authorizing the
acquisition of land “for the purpose of providing land for Indians” is
simply not the same as a statute authorizing the acquisition of land
“for the purpose of providing land for persons taller than 6 feet.” See
generally Reid P. Chambers, Judicial Enforcement of the Federal
Trust Responsibility to Indians, 27 STAN. L. REV. 1213 (1975).
 15

among American Indians. While certain sections of the IRA
include more specific language than section 5, see, e.g., 25
U.S.C. § 463, this does not detract from the overall purposes of
the statute. Although, as our dissenting colleague suggests,
particular clauses of the IRA could be interpreted as not
advancing the goal of economic development, not alleviating all
the problems caused by the allotment policy, or advancing goals
more narrow than general economic development, Dissenting
Op. at 5-7, this analysis ignores the unambiguous purpose of the
IRA as a whole.

Finally, we note that the Supreme Court has observed that
“the degree of agency discretion that is acceptable varies
according to the scope of the power congressionally conferred.”
Whitman, 531 U.S. at 475. The scope of authority delegated to
the Secretary under section 5 — to decide whether to grant
status as “Indian Country” to specific plots of land owned by
Indians or that is acquired for them — is not so broad as to
require limiting principles more specific than pursuing Indian
economic development. Our conclusion is underscored by
examining historical and contemporary context. The Executive
has historically enjoyed extensive authority in conducting
relations with American Indians, which has included negotiating
treaties with Indian tribes and granting reservations to them by
executive order. See, e.g., HANDBOOK, supra, §§ 1.03;
15.04[4]; cf. Zemel v. Rusk, 381 U.S. 1, 17-18 (1965). “[E]ven
in sweeping regulatory schemes . . . statutes [are not required to]
provide a determinate criterion” delimiting precisely how much
of a good or harm an agency must address. Whitman, 531 U.S.
at 475 (internal quotations omitted). Our dissenting colleague
asserts that the Secretary’s powers under section 5 are vast,
Dissenting Op. at 10-12, pointing to the many significant
consequences that flow from the Secretary’s decision to accept
land in trust for the Indians. But these consequences follow
from section 5 and from other statutes, not from the decision of
 16

the Secretary to acquire land in trust, for section 5 gives the
Secretary no power to regulate state taxing authority or anything
else. Our dissenting colleague further faults Congress for not
providing a narrower standard, but Congress must provide only
an “intelligible” standard, Whitman, 531 U.S. at 474-75. That
standard need not be utterly unambiguous, for it is settled that
Congress may delegate interstitial lawmaking authority to
executive agencies. See Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984).8

For these reasons, we join the First, Eighth and Tenth
Circuits, Carcieri, 497 F.3d at 43; South Dakota, 423 F.3d at
799; Roberts, 185 F.3d at 1137, in upholding section 5 of the
IRA. In cases entertaining (and rejecting) challenges asserting
an unconstitutional delegation, the Supreme Court has “giv[en]
narrow constructions to statutory delegations that might
otherwise be thought to be unconstitutional,” Mistretta v. United
States, 488 U.S. 361, 373 n.7 (1989), and has done so by
looking at clauses that neighbor the delegation of power, e.g.,
Am. Power & Light Co., 329 U.S. at 104-05, as well as the
statute’s overriding purpose, e.g., N.Y. Cent. Sec. Corp. v.
United States, 287 U.S. 12, 24-25 (1932). Congress may
legislate its goals explicitly, see, e.g., Mistretta, 488 U.S. at 374,
but it need not do so. We thus hold, relying upon the text,
structure, and purpose of the IRA, as well as the context of its
enactment, that section 5 contains an intelligible principle and

8
Nor are we concerned, for purposes of the non-delegation doctrine,
that the Secretary’s decision to take land in trust might be
unreviewable in a court of law. Dissenting Op. at 7-8 (citing State of
Fla., Dep’t of Bus. Regulation v. U.S. Dep’t of Interior, 768 F.2d 1248
(11th Cir. 1985)). Section 5 of the IRA intelligibly guides the
Secretary’s exercise of discretion, and that is all that the non-
delegation doctrine requires. Yakus, 321 U.S. at 425-26; 5 U.S.C. §
701.
 17

that it is not an unconstitutional delegation of legislative
authority.

Accordingly, we affirm the grant of summary judgment.
 BROWN, Circuit Judge, dissenting in part: I join Parts I
and II of the court’s opinion, but I cannot agree § 5 of the IRA
is constitutional. Consequently, I dissent from Part III.

I

Like other courts that have rejected nondelegation
challenges to § 5, Carcieri v. Kempthorne, 497 F.3d 15, 41–
43 (1st Cir. 2007) (en banc); South Dakota v. U.S. Dep’t of
the Interior, 423 F.3d 790, 799 (8th Cir. 2005); United States
v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999), the majority
nominally performs a nondelegation analysis but actually
strips the doctrine of any meaning. It conjures standards and
limits from thin air to construct a supposed intelligible
principle for the § 5 delegation. Although I agree the
nondelegation principle is extremely accommodating, the
majority’s willingness to imagine bounds on delegated
authority goes so far as to render the principle nugatory.
Analyzing the statute using ordinary tools of statutory
construction, as the Supreme Court has always done in
nondelegation cases, I am forced to conclude § 5 is
unconstitutional.

The nondelegation doctrine prohibits Congress from
making unbridled delegations of authority. The rule is not
only a fundamental aspect of the separation of powers; it is an
essential feature of democratic government. “[T]he
delegation doctrine[] has developed to prevent Congress from
forsaking its duties.” Loving v. United States, 517 U.S. 748,
758 (1996). “[T]he constitutional question is whether the
statute has delegated legislative power to the agency . . . [The
Constitution’s] text permits no delegation of those powers.”
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001);
see also Mistretta v. United States, 488 U.S. 361, 371 (1989)
(“The nondelegation doctrine is rooted in the principle of
separation of powers . . . .”); J.W. Hampton, Jr., & Co. v.
United States, 276 U.S. 394, 406 (1928) (“[I]t is a breach of
 2
the National fundamental law if Congress gives up its
legislative power . . . .”). The nondelegation principle is
integral to any notion of democratic accountability.

Thus, when Congress directs an agency to exercise its
judgment, it must guide that judgment in some way. I agree
with the majority that the nondelegation principle is not an
onerous requirement. Nevertheless, Congress must at least
“clearly delineate[] the general policy, the public agency
which is to apply it, and the boundaries of this delegated
authority.” Mistretta, 488 U.S. at 372–73; Am. Power &
Light Co. v. SEC, 329 U.S. 90, 105 (1946). The central
question is whether there are “limits on [an agency’s]
discretion.” Whitman, 531 U.S. at 473.

Like the majority, I take Whitman to have identified two
ways in which Congress may provide the necessary bounds
on a delegation: standards to guide an agency’s judgment or,
in their absence, stringent limits on the scope of the delegated
authority. Standards to guide an agency are the ordinary way
to limit its discretion. In the leading case, A.L.A. Schechter
Poultry Corp. v. United States, the Supreme Court invalidated
§ 3 of the National Industrial Recovery Act, which allowed
trade associations to develop codes of fair competition the
President could adopt as law, with conditions as he thought
“necessary.” 295 U.S. 495, 522–23, 542 (1935). This statute
was flawed because it “conferred authority to regulate the
entire economy on the basis of no more precise a standard
than stimulating the economy by assuring ‘fair competition.’”
Whitman, 531 U.S. at 474. Alternatively, “Congress need not
provide any direction” if the “scope of the power
congressionally conferred” is sufficiently small. Id. at 475.
Either type of limit suffices on its own, but at least one must
be present.
 3
Thus, the “intelligible principle” required of a
constitutional delegation is fairly minimal: a statute will fail
only if it gives an agency too broad an authority with no
standards to guide the agency’s decisions. Section 5 is a rare
example of a standardless delegation, allowing the Secretary
of the Interior to take land in trust for whichever Indians he
chooses, for whatever reasons. This power is far too broad in
scope for Congress to have delegated without any standards.

II

A

First, § 5 lacks standards to guide the Secretary in the
exercise of his authority. Such standards would not have to
provide a “determinate criterion” to govern agency decisions,
as long as they provide “substantial guidance.” Whitman, 531
U.S. at 475. Standards need only provide some criteria, some
guidelines, or some direction, so that when an agency
exercises its judgment, the agency and the courts have some
“intelligible principle” by which to gauge whether the
agency’s decision will further the purpose of the delegation.
For example, to guide the Sentencing Commission, “Congress
directed it to consider seven factors,” listed in the statute.
Mistretta, 488 U.S. at 375. In Whitman, the Clean Air Act
required the EPA “to set air quality standards at the level that
is ‘requisite’ . . . to protect the public health with an adequate
margin of safety.” 531 U.S. at 475–76.

“Whether [a] statute delegates legislative power is a
question for the courts,” Whitman, 531 U.S. at 473, and the
purpose of an intelligible principle is to make sure it is not
“impossible in a proper proceeding to ascertain whether the
will of Congress has been obeyed.” Yakus v. United States,
321 U.S. 414, 426 (1944). Congress must provide legal
 4
standards because “[p]rivate rights are protected by access to
the courts to test the application of the policy in the light of”
the standards. Am. Power & Light Co., 329 U.S. at 105.
Thus, since Congress must lay down these standards by
“legislative act,” Mistretta, 488 U.S. at 372, we should seek
standards for a delegation using the ordinary tools of statutory
construction.

The kinds of tools the majority uses are occasionally
appropriate aids for ascertaining the meaning of ambiguous
statutory text. On the other hand, when a standard is not
ambiguous, but simply absent, we may not supply one by
ourselves. See Conn. Nat’l Bank v. Germain, 503 U.S. 249,
254 (1992); Gen. Elec. Co. v. EPA, 360 F.3d 188, 191 (D.C.
Cir. 2004). The majority not only supplies an absent
standard, it actually invents the standard, imbuing § 5 with a
spirit of “economic development” that somehow emanates
from the context of the IRA.

In many nondelegation cases, Congress at least hints at a
standard by directing an agency to exercise its authority “in
the public interest”—words indicating some congressionally
imposed limit, even if the vagueness of the phrase makes a
court work to interpret it. Here, by contrast, the Secretary “is
authorized” to acquire land for Indians “in his discretion.”
Rather than an ambiguous standard that requires
interpretation, § 5 provides an obvious, unambiguous
direction that the Secretary is to have complete discretion.

The majority proceeds, in the teeth of this clear text, to
find, in the emanation from a variety of sources, the supposed
true intelligible principle behind § 5: promoting Indian
economic development so Indians can achieve “self-support,”
and recouping losses of land. But this standard arises from
the majority’s imagination, not from the sources.
 5

First, the court cites the preamble to the IRA: “to
conserve and develop Indian land and resources.” Maj. Op. at
13. A policy of developing land is no more informative than
a purpose of providing land, as a standard to help the
Secretary decide whether to acquire a particular parcel. Nor
do the preamble’s policies of “extending the right to form
business[es] . . . establishing a credit system,” and the rest,
give any better direction.

Second, the majority examines the structure of the IRA.
Maj. Op. at 13. Among its many provisions, the IRA makes
trust status permanent, §§ 2 and 4, and provides for the
recovery of Indian lands that had been opened for sale, § 3.
Ironically, the restoration of lands under § 3 is not automatic,
but rests in the Secretary’s hands. Unlike § 5 acquisitions, the
Secretary is to restore surplus lands “if he shall find it to be in
the public interest.” Ordinarily, a comparison of § 3 and § 5
would lead us, first, to conclude § 5 gives the Secretary
authority to acquire new land, and, second, to construe § 5 to
grant Secretary broader discretion when he acquires new land
than when he restores surplus land. Instead the majority reads
into § 5 an “emphasis” on recouping losses of land, an
emphasis the text does not support. The majority also sees an
emphasis on preventing losses of existing land, even though
§ 8, which declares that the IRA shall not cover “Indian
holdings of allotments or homesteads upon the public domain
outside” of reservations, actually limits the effect of the IRA
on existing Indian land. Nor is it plausible to find a principle
of “self-support” in a statute that actually installs a
paternalistic scheme of government support. See § 4 (barring
Indians from selling or transferring their trust land); § 12
(directing the Secretary to establish preferences for hiring
Indians at the Indian Office); § 11 (appropriating money to
send Indians to “vocational and trade schools” of which only
 6
a limited amount may be spent for education in “high schools
and colleges”); § 6 (establishing the Secretary’s authority over
how Indians should manage their forests and how many cows
they may graze on their pastures).

The majority also cites the special trust relationship the
United States bears towards Indians, waving the idea of this
relationship as a talisman to bless the statute rather than
actually using it to interpret the text. Nor could this trust
relationship be useful to interpret § 5, because in fact the
government has no free-standing duty, outside of specific
statutes, treaties, or executive orders, to ensure its actions do
not harm Indian interests. N. Slope Borough v. Andrus, 642
F.2d 589, 611 (D.C. Cir. 1980) (Secretary’s trust obligations,
if any, were coterminous with the ESA’s requirements); see
also United States v. Wilson, 881 F.2d 596, 600 (9th Cir.
1989) (“Absent . . . a fiduciary duty based on an authorizing
document such as a statute or a regulation . . . there can be no
trust relationship between [a tribe] and the BIA.”). The only
trust responsibility created by § 5 exists after the government
acquires a parcel of land and therefore cannot guide the
Secretary’s decision whether to acquire the parcel. The
majority adverts to the “unique history” of Indians in the
United States, but this history gives rise only to “a moral
obligation, without justiciable standards for its enforcement.”
Reid P. Chambers, Judicial Enforcement of the Federal Trust
Responsibility to Indians, 27 STAN. L. REV. 1213, 1227
(1975). At best, courts distinguish statutes relating to Indians
by applying the Indian canon of construction, County of
Yakima v. Confederated Tribes & Bands of Yakima Indian
Nation, 502 U.S. 251, 269 (1992), but “[t]he canon of
construction regarding the resolution of ambiguities in favor
of Indians, however, does not permit reliance on ambiguities
that do not exist.” South Carolina v. Catawba Indian Tribe,
Inc., 476 U.S. 498, 506 (1986).
 7

To summarize, the statutory language lacks any
discernible boundaries. To rely on the purpose of “providing
land for Indians” does nothing to cabin the Secretary’s
discretion over providing land for Indians because it is
tautological. To say the purpose is to provide land for Indians
in a broad effort to promote economic development (with a
special emphasis on preventing land loss) is tautology on
steroids. Making a different selection from the same
smorgasbord, I might posit quite different principles—to
provide land for landless Indians; to acquire trust lands to be
used for farming; to supplement grazing and forestry lands; to
provide lands in close proximity to existing reservations; to
consolidate checkerboarded reservations. All of these goals
would be reasonable, but none can be derived from the text of
the IRA. The very fact that so many standards can be
proposed merely highlights the fact that the statute itself fails
to describe how the power conveyed is to be exercised. Thus,
the Secretary’s assertion of unguided power is not subject to
any judicial check; nor, conversely, can he be required to act
whenever he voluntarily refrains from using his discretionary
power.

Even if this mood of economic self-sufficiency can be
said to permeate § 5, it has never constituted a standard to
guide the Secretary’s decisions. Courts, like the BIA, have
consistently interpreted the statute to mean what it says: the
Secretary has unfettered discretion over which land to take in
trust. See, e.g., State of Fla., Dep’t of Bus. Regulation v. U.S.
Dep’t of the Interior, 768 F.2d 1248 (11th Cir. 1985)
(Secretary may waive BIA regulations to acquire land for a
tribal museum, and the court may not review his decision
because it is committed to agency discretion). Again and
again, courts have rejected challenges to acquisitions as
beyond the Secretary’s power, concluding that the
 8
“deliberately broad and flexible grant of power” in § 5,
Stevens v. Comm’r of Internal Revenue, 452 F.2d 741, 748
(9th Cir. 1971), encompasses any possible acquisition. E.g.,
Chase v. McMasters, 573 F.2d 1011, 1015–16 (8th Cir. 1978)
(“Congress did not limit the Secretary’s discretion to select
land for acquisition”; therefore, it was valid to accept land an
Indian already owned and was giving to the United States in
trust solely for the purpose of avoiding property taxes). The
BIA has also regarded the Secretary’s discretion as absolute,
and its review board may only verify whether BIA considered
the factors laid out in its own regulations. Eades, 17 I.B.I.A.
198, 200 (1989). Most recently, BIA has begun to deny trust
applications for building casinos if it finds the casinos to lie
beyond a “commutable” distance from tribes’ existing
reservations. See Memorandum from Carl Artman, Ass’t
Sec’y of the Interior, on Taking Off-Reservation Land into
Trust for Gaming Purposes 1, 3 (Jan. 3, 2008) (“The decision
whether to take land into trust . . . is discretionary with the
Secretary.”).1

In light of this history, it is a bit late for the court to claim
there is in fact a standard, however loose, to which the
Secretary must conform in his exercise of § 5 authority. Nor,
given the weight of precedent, would I expect any court to
apply the majority’s “economic development with special
emphasis” standard in reviewing an acquisition decision.

1
BIA denies these applications because for far-away applications,
the benefit to Indians does not outweigh the “concerns of state and
local governments.” Id. at 5 (citing 25 C.F.R. § 151.11(b)). If the
majority is right about the principle guiding these decisions, it
cannot be proper for BIA to deny an acquisition because of the
harm to local government caused by “the removal of the land from
the tax rolls,” id.
 9
My point here is not to quibble with the majority’s
conclusion that the purpose of § 5 is to enable self-support
rather than dependency or to prevent losses rather than
acquire new land. Rather, the court should not be playing this
game at all. Indeed, the court’s approach differs radically
from the Supreme Court’s analytical process in nondelegation
challenges. For example, in the Intermountain Rate Cases,
the Court, recognizing that “we must be governed by the
statute and its plain meaning,” interpreted a challenged
section to incorporate a prohibition on “undue preference and
discrimination” from the text of a neighboring section. 234
U.S. 476, 485–86, 488 (1914). In American Power & Light
Co., the Court relied on a statute’s specific standards for new
security issues that constituted “a veritable code of rules” to
inform the SEC’s discretion to ban “unduly or unnecessarily
complicate[d]” corporate structures. 329 U.S. at 105. I could
continue with examples, but they all illustrate the same point:
even in a nondelegation challenge, a court must find meaning
for an ambiguous phrase in some relevant text. Here, by
contrast, the majority perceives a mood of economic
development, which Congress did not articulate, and the
majority justifies this mood by its own assessment of
Congress’s good intentions.

In short, this court, like the First, Eighth, and Tenth
Circuits before it, has constructed an intelligible principle for
§ 5 that consists simply of knowing why Congress enacted the
provision. I do not deny that Congress wanted to alleviate the
problems faced by Native Americans. Nevertheless, this
alleged intelligible principle is relevant only for
nondelegation challenges. The fact that the Supreme Court
has also acknowledged the motivation for the IRA, Maj. Op.
at 13–14, does not make that motivation any more meaningful
as a standard to guide the Secretary’s decisions on trust
 10
acquisitions.2 If it were meaningful, it would be contrary to
the plain text of § 5, which gives the Secretary unfettered
discretion over such decisions.

B

Given the absence of standards to govern the Secretary’s
exercise of his § 5 authority, I conclude the authority is too
broad to be valid. Unquestionably, a standardless delegation
is valid if it is small; “the degree of agency discretion that is
acceptable varies according to the scope of the power
congressionally conferred.” Whitman, 531 U.S. at 475.
While the majority recognizes that scope matters, it fails to
acknowledge that under established nondelegation doctrine, a
standardless delegation must be quite narrow. Whitman
provided the canonical example of a sufficiently small
delegation: EPA can “define ‘country elevators,’ which are to
be exempt from new-stationary-source regulations governing
grain elevators.” Id.; see 42 U.S.C. § 7411(i) (“Any
regulations promulgated by the Administrator under this
section applicable to grain elevators shall not apply to country
elevators (as defined by the Administrator) which have a
storage capacity of less than two million five hundred
thousand bushels.”).
By contrast, the § 5 power is quite broad. The majority
blandly characterizes it as the power to grant status as Indian
country, but the majority ignores the far-reaching
consequences of that status.3 By taking land in trust for

2
Amusingly, Mescalero Apache Tribe v. Jones, in perhaps ill-
considered dicta, recited the same legislative history as the majority
on its way to limiting the tax immunities enjoyed by Indians. 411
U.S. 145, 152–59 (1973).
3
The majority also regards the power to hold land in trust as having
aspects of Executive authority, apparently akin to the foreign
 11
Indians, the Secretary removes it from the jurisdiction of the
State in which it sits and places it under the authority of a
tribe. Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S.
520, 529–31 (1998) (noting federal land held in trust for
Indians is Indian country (citing United States v. McGowan,
302 U.S. 535 (1938)). Thus, the trust acquisition authority is
a power to determine who writes the law, and thus indirectly
what the law will be, for particular plots of land.

The consequences of the Indian country designation are
profound. Most obviously, Indian country and its beneficial
owners are “exempt from State and local taxation.” 25 U.S.C.
§ 465 para. 4. Indeed, tribal residents of Indian country are
even exempt from motor vehicle and state income taxes.
Okla. Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 127–
28 (1993); McClanahan v. Ariz. State Tax Comm’n, 411 U.S.
164, 165 (1973). More generally, Indian country is subject to
federal and tribal jurisdiction in both civil and criminal
matters. Native Vill. of Venetie, 522 U.S. at 527 & n.1 (civil);
DeCoteau v. Dist. County Court for the Tenth Judicial Dist.,
420 U.S. 425, 428 n.2 (1975) (civil); see United States v.
John, 437 U.S. 634, 649, 654 (1978) (reversing state
conviction for a crime committed on trust land). A state
“presumptively lacks jurisdiction to enforce” its regulations in
Indian country. Narragansett Indian Tribe v. Narragansett
Elec. Co., 89 F.3d 908, 915 (1st Cir. 1996). A tribal
sovereign ousts a state, unless Congress expressly provides
otherwise. California v. Cabazon Band of Mission Indians,

relations powers that mitigated a delegation in Zemel v. Rusk, 381
U.S. 1, 17–18 (1965). Maj. Op. at 14–15. Regardless of the
Executive’s role in concluding treaties with Indians, “the
Constitution places the authority to dispose of public lands
exclusively in Congress,” and that includes the power to hold lands
in trust. Sioux Tribe of Indians v. United States, 316 U.S. 317, 326
(1942); see also U.S. CONST. art. IV, § 3 cl. 2 (Property Clause).
 12
480 U.S. 202, 207 (1987).4 These consequences result not
from other statutes, as the majority claims, Maj. Op. at 15–16,
but from the “attributes of sovereignty” that “Indian tribes
retain.” Id. at 207; see also Okla. Tax Comm’n, 508 U.S. at
128, Surely we need not avert our gaze from the
constitutional backdrop against which Congress legislates.

Thus, § 5 allows the Secretary, by taking land in trust for
Indians, to oust state jurisdiction in favor of government by
the beneficiaries he chooses. Although there are certain limits
on the scope of this power, such as the restriction that land
may only be held “for Indians,” they are not nearly narrow
enough to validate a standardless delegation. By comparison
to the EPA’s authority to define country elevators, the § 5
power is astoundingly broad. While the EPA was allowed to
exempt certain pollution sources, circumscribed by size, from
pollution regulations the EPA itself had imposed under a
specific provision, 42 U.S.C. § 7411, here the Secretary can
completely remove areas of land from the jurisdiction of state
and local governments. Although this power may not need
the “substantial guidance” the Supreme Court thought
necessary for the EPA’s broad authority to set air-quality
standards, Whitman, 531 U.S. at 476, the power it confers is
far too broad to survive without any guidance at all.

C

4
The Gun Lake Band casino project nicely illustrates how
substantially a change to Indian country status can affect both
Indians and non-Indians in the vicinity of trust land. Local
governments stand to lose $85,000 per year in direct property taxes,
while the extra traffic and other activity connected to the casino
will force local police to hire additional staff at a cost of over
$400,000 per year.
 13
Section 5 gives the Secretary unguided authority to
transfer areas of land from the jurisdiction of state and local
government to that of various bands of Indians. None of the
foregoing implies BIA has exercised its authority wantonly.
But the question is not what it has done, but what it has
authority to do. The authority was Congress’s to give, and the
boundaries were for Congress to provide as well. Since it has
failed to do so, I am forced to conclude § 5 of the IRA is an
unconstitutional delegation.