Volume 49, Number 2
Spring 1997 - Abstracts

South Dakota v. United States Department of the Interior: Another Broken Promise to the United States Indians
- Jessica Roff

This Note discusses the decision in the United States Court of Appeals for the Eighth Circuit in South Dakota v. United States Department of Interior. The court held that section 5 of the Indian Reorganization Act (IRA), which authorizes the Secretary of the Interior (Secretary) to acquire land for Indians in trust, is an unconstitutional delegation of power. While the Supreme Court has since granted certiorari, vacated, and remanded this decision, this note critiques the Eighth Circuit's reasoning and discusses issues arising from it which the Supreme Court did not address.

In analyzing the constitutionality of the IRA, this Note discusses the history and the potential effects of the nondelegation doctrine. Only twice before has the Supreme Court held a statute to be an unconstitutional grant of power. In both instances, the Court established standards to evaluate congressional nondelegations and held that the provisions at issue violated the nondelegation doctrine. Despite the infrequency of its use, however, much controversy exists over the method in which the nondelegation doctrine should be applied. The formalist approach requires Congress to provide precise instructions when it delegates power, and Courts to apply a more aggressive nondelegation doctrine in reviewing such delegations. The functionalists argue for broader delegations of power and more discretion to the agencies. This Note argues that a functionalist approach, requiring merely "meaningful standards" in Congress's delegation of power, allows Congress to provide greater deference to agencies which are better suited to address the concerns of interest groups such as Indians.

The IRA was enacted to strengthen tribal governments and to remedy the effects of the General Allotment Act of 1887 which was designed to assimilate Indians by selling tribal Indian land to individual Indians and non-Indians. To further ensure that land belonging to Indians was sufficient to achieve Indian self-support, section 5 of the IRA was enacted, authorizing the Secretary to acquire land for an Indian tribe or individual to be held in trust by the federal government. The author maintains that the Secretary's power to acquire land in trust under the IRA, has been a central element in achieving Congress's goals.

This Note rejects the Eighth Circuit's holding that section 5 of the IRA delegates powers to the Secretary so broad as to be unconstitutional. The author identifies the limitations of the Secretary's acquisition power imposed by Section 5 of the IRA through its language, legislative history, and context, to challenge the Eighth Circuit's holding that section 5 is an unrestricted delegation of power. The author discusses portions of the statute's language which provides guidance to the Secretary's authority and also points out flaws in the court's legislative history analysis. In addition, the author examines other provisions of the IRA which specify additional limitations to the Secretary's authority as well as provide guidance for particular actions.

While conceding that Congress must be specific in delegating power to an agency, the author argues that Congress should be flexible in the legislation it passes to allow agencies to respond effectively to continuously evolving situations in interest groups. The author maintains that the IRA reflects the enactment of strong policy with clear congressional intent to compensate for past wrongs against Indian people. The author states that the Eighth Circuit's decision, were it allowed to stand, would have threatened the land base of many Indian tribes, thereby frustrating Congress's intent. Furthermore, political issues which might have factored into the court's decision are also discussed to prove that politicians and government officials only respond to the interests of dominant societal groups. Consequently, in areas that involve very specific interests such as Indian land acquisition, the author maintains that it makes greater sense to allow Congress to delegate power to the BIA and defer to the BIA's expertise.

Abstract by Nahied Usman

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