EEOC v. Product Fabricators, Inc.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1745
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State of South Dakota; County of *
Roberts; Sisseton School District *
No. 54-2; City of Sisseton; *
Wilmont School District No. 54-7, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
United States Department of *
Interior; Larry Echo Hawk, in his *
official capacity as Assistant *
Secretary of Indian Affairs, United *
States Department of Interior; *
Michael Black, in his official *
capacity as Director, Great Plains *
Regional Office, Bureau of Indian *
Affairs; Russell Hawkins, in his *
official capacity as Superintendent, *
Lake Traverse Agency, *
*
Appellees. *
*
____________________ *
*
Sisseton-Wahpeton Oyate of the *
Lake Traverse Reservation, *
*
Amicus on behalf of *
Appellee. *
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Submitted: October 26, 2011
Filed: January 11, 2012
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Before RILEY, Chief Judge, WOLLMAN and BEAM, Circuit Judges.
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RILEY, Chief Judge.
The Secretary of the United States Department of the Interior, through the
Bureau of Indian Affairs (BIA and, collectively, Secretary), announced its decision
to accept four parcels of land within the geographic boundaries of the State of South
Dakota (South Dakota) into trust for the benefit of the Sisseton-Wahpeton Oyate of
the Lake Traverse Reservation (Tribe), a federally recognized Indian tribe. South
Dakota and certain of its political subdivisions (collectively, State) challenged that
decision under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06. The
district court granted summary judgment in favor of the Secretary, and the State1
appeals. We dismiss the appeal.
I. BACKGROUND
A. Facts
In January 2001, the Tribe’s legislative council enacted a series of resolutions
requesting that the Secretary exercise its statutory authority under § 5 of the Indian
Reorganization Act (IRA), 25 U.S.C. § 465, and certain legislation specific to the
Tribe, see Pub. L. No. 93-491, 88 Stat. 1468 (1974), and Pub. L. No. 98-513, 98 Stat.
2411 (1984), to take into trust four parcels of land located in Roberts County, South
Dakota. See Sisseton-Wahpeton Sioux Tribe, Tribal Council Resolution Nos. SWST-
01-010 to -012, -065. The BIA notified the State of the Tribe’s petition, and the State
filed comments in opposition to the request.
The Honorable Roberto A. Lange, United States District Judge for the District1
of South Dakota.
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The State objected to Sisseton Agency Superintendent Russell Hawkins’ role
as the BIA’s initial decision-maker with respect to the Tribe’s petitions. The State
alleged Superintendent Hawkins was impermissibly biased in favor of the Tribe’s
petition because of his history of governmental service with the Tribe.
Superintendent Hawkins is an enrolled member of the Tribe. Before becoming
Superintendent in 2001, Superintendent Hawkins served as the elected council
chairman for the Tribe. During Superintendent Hawkins’ term as chairman, the2
council passed an ordinance proclaiming the Tribe, “through its inherent and vested
authority, [would] exercise jurisdiction over its members and non-members located
within Indian Country and Indian Territory of the Lake Traverse Reservation as
defined in the 1867 Treaty.” Sisseton-Wahpeton Sioux Tribe of The Lake Traverse
Reservation, Ordinance No. SWST-ORD-79-02A (1989), available at
http://www.narf.org/nill/Codes/sissetonwahpeton%20code/swjurisdiction.htm.3
Superintendent Hawkins brought the State’s concerns to the attention of the
Regional Director of the BIA Great Plains Regional Office (Regional Director). In
a September 26, 2006 letter, Superintendent Hawkins explained, “I think as
Superintendent I should sign these decision letters . . . but would like your input as
to whether or not the [Office of the Field S]olicitor should review” the State’s
Nearly six years elapsed between Superintendent Hawkins’ final term as2
council chairman and his appointment with the BIA. See South Dakota v. U.S. Dep’t.
of Interior, 775 F. Supp. 2d 1129, 1139 (D.S.D. 2011).
In 1975, the Supreme Court of the United States held an 1891 act of Congress3
“terminated the Lake Traverse Reservation, and . . . consequently[,] the state courts
have jurisdiction over conduct on non-Indian lands within the 1867 reservation
borders.” See DeCoteau v. Dist. Cnty. Ct. for the Tenth Jud. Dist., 420 U.S. 425, 428
(1975). The territory encompassed by this tribal ordinance included the cities of
Sisseton and Peever, South Dakota, and included lands over which the State had
exercised jurisdiction since the 1891 allotment of the Tribe’s reservation. See id. at
449.
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comments. The Regional Director replied in a November 22, 2006 letter that the
State’s allegations of bias “hold no validity whatsoever,” and
[t]here is no statute or law that states employees of the [BIA] are not
allowed to work on the reservation in which they are enrolled members.
We do not see any issues or conflict of interests with Superintendent
Russell Hawkins as the Approving Official for On-reservation fee to
trust acquisitions for the . . . Tribe.
In January and February 2007, Superintendent Hawkins issued four letters of
decision declaring his intention to accept the four parcels into trust on behalf of the
Tribe. The State sought review of these decisions with the Regional Director. The
Regional Director upheld Superintendent Hawkins’ decisions on the merits.
Regarding the State’s allegation of bias against Superintendent Hawkins, the
Regional Director found “the State [did] not submit[] any substantial information to
document that any BIA decision maker . . . disregarded any federal regulations or
laws” and Superintendent Hawkins was “capable of making a professional and
objective decision on [the] fee to trust acquisition[s].”
The State appealed the Regional Director’s decision to the Interior Board of
Indian Appeals (IBIA). See Roberts Cnty., S.D. v. Acting Great Plains Reg’l Dir.,
BIA, 51 IBIA 35 (2009). The IBIA rejected the State’s bias arguments, remarking
that the State “offered no evidence demonstrating that either [Superintendent
Hawkins’] membership in the Tribe or his former service as a tribal official
improperly influenced his decision,” and “the State’s bald assumption that
[Superintendent Hawkins’] status necessarily calls into question his impartiality is
insufficient to demonstrate either the appearance of bias or actual bias.” Id. at 49.
The IBIA also found the Regional Director’s and the IBIA’s independent review of
Superintendent Hawkins’ decision sufficiently protected the State’s right “against an
erroneous or improper decision.” Id. at 49 n.10. The IBIA affirmed the Regional
Director’s decisions on the merits. Id. at 53.
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B. Procedural History
Having thus exhausted its administrative remedies, the State brought this action
under the APA, seeking to prevent the Secretary from completing the land-into-trust
acquisitions. The State challenged both the Secretary’s decision on the merits and
Superintendent Hawkins’ participation in the decision.
The State alleged, “[t]he States, as part of the constitutional bargain, were
implicitly guaranteed, as a matter of binding Constitutional law, due process
protections . . . at least equivalent to that” afforded to United States citizens under the
Due Process Clauses of the Fifth and Fourteenth Amendments. The State further
maintained
the States and their political subdivisions are the beneficiary of the
Congressional plan providing for delegation of authority to take land
into trust only when all litigants or participants in a proceeding seeking
to take that land into trust are accorded due process equivalent to that
provided by the Fifth and Fourteenth Amendment[s].
The State asserted the Secretary’s land-into-trust decision violated its due process
rights because “[a]s a result of Superintendent Hawkins’ life-long membership in the
Tribe and his repeated positions of leadership in the Tribe, Hawkins [could] not . . .
act as a neutral, unbiased decision maker with regard to his Tribe’s applications to
take land into trust.”
The BIA filed a motion for summary judgment, which the district court
granted. See South Dakota, 755 F. Supp. 2d at 1132, 1146. The State appeals.
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II. DISCUSSION
A. Standard of Review
“We review the district court’s grant of summary judgment de novo.” Morrison
Enters., LLC v. Dravo Corp., 638 F.3d 594, 602 (8th Cir. 2011) (quoting Cole v.
Homier Dist. Co., 599 F.3d 856, 864 (8th Cir. 2010)). Summary judgment is
appropriate where there is no genuine dispute of material fact and the moving party
is entitled to judgment as a matter of law. Id.; see also Fed. R. Civ. P. 56(a). Whether
agency action violates the Constitution is a question of law which we review de novo.
See Coal. for Fair and Equitable Regulation of Docks on Lake of the Ozarks v. FERC,
297 F.3d 771, 778 (8th Cir. 2002).
B. Standing
The BIA argues for the first time on appeal the State lacks standing to bring its
due process claims. Article III standing is a “threshold inquiry,” which must be
resolved before reaching the merits of a suit. See City of Clarkson Valley v. Mineta,
495 F.3d 567, 569 (8th Cir. 2007). “To show Article III standing, a plaintiff has the
burden of proving: (1) that he or she suffered an injury-in-fact, (2) a causal
relationship between the injury and the challenged conduct, and (3) that the injury
likely will be redressed by a favorable decision.” Pucket v. Hot Springs Sch. Dist.
No. 23-2, 526 F.3d 1151, 1157 (8th Cir. 2008) (quoting Steger v. Franco, Inc., 228
F.3d 889, 892 (8th Cir. 2000) (internal quotation marks omitted)); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
The State’s claim satisfies the minimum constitutional requirements for
standing. States generally lack authority to regulate Indian tribes and tribe members
on trust property. See, e.g., Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994, 1006,
1010-11 (8th Cir. 2010) (recognizing lands taken into trust by the BIA under § 5 of
the IRA are Indian country, and “as a general rule Indian country falls under the
primary civil, criminal, and regulatory jurisdiction of the federal government and the
resident Tribe rather than the states”). As an immediate consequence of placing the
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four disputed parcels into trust, Roberts County will lose $254.92, $259.34, $1300.86,
and $1474.80, respectively, in annual property taxes. It is reasonably certain the State
will be deprived of additional tax revenues, because the State is “categorical[ly]”
prohibited from laying a direct tax “on a tribe or on tribal members inside Indian
country.” Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 458 (1995). Thus,
the State has a direct and tangible economic interest in the agency’s decision. See
Akiachak Native Cmty. v. U.S. Dep’t of Interior, 584 F. Supp. 2d. 1, 7 (D.D.C. 2008)
(recognizing a state’s interest in “the loss of taxing and regulatory authority” over
lands taken into trust was sufficient to satisfy Article III standing).
To proceed on its claim, the State also must satisfy the prudential standing
requirement by showing its alleged injury “arguably fall[s] within the zone of
interests protected or regulated by the statutory provision or constitutional guarantee
invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 162 (1997); see also Nat’l
Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 492 (1998).
Because § 702 of the APA by itself does not confer prudential standing, see
Rasmussen v. United States, 421 F.2d 776, 779 (8th Cir. 1970) (recognizing the APA
does not supply standing), we must determine whether the State is seeking to enforce
a right arising out of the Fifth Amendment’s Due Process Clause or under the various
statutes authorizing the Secretary to acquire land into trust for the benefit of the Tribe.
The first question is easily resolved. The State is not a “person” within the meaning
of the Fifth Amendment’s Due Process Clause. See South Carolina v. Katzenbach,
383 U.S. 301, 323-24 (1966) (“The word ‘person’ in the context of the Due Process
Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation, be
expanded to encompass the States of the Union.”). Thus, the State’s claim does not4
The circuits are split as to whether a state’s political subdivisions are afforded4
due process under the Fifth Amendment. Compare In Re Real Est. Title & Settlement
Servs. Antitrust Litig., 869 F.2d 760, 765 n.3 (3d Cir. 1989) (holding “school boards
are persons within the meaning of the Fifth Amendment due process clause”), with
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fall within the “zone of interests” protected by the Due Process Clause, and the State
lacks standing to assert such a claim. See Bennett, 520 U.S. at 162.
Whether the State has standing under the statutes authorizing the Secretary’s
land-into-trust acquisitions is a more complex question, but it is a question we need
not answer now. The State did not raise any statutory claims on appeal. In its
opening brief, the State framed its argument as follows: “[t]he Due Process Clause
prohibits a current member and former multi-term Chairman of the Tribe from
adjudicating whether to grant the Tribe’s multiple land in trust applications.” The
State explained “the State’s challenge is centered on the Due Process Clause of the
Constitution,” and extensively discussed “the proper approach to be taken when
evaluating a claim that due process prohibits a decision maker from sitting on a
particular case.”
In its reply brief, the State referenced its complaint, which asserted the State’s
right to due process derived from an “implicit” constitutional and statutory guarantee
of “due process equivalent to that provided by the Fifth and Fourteenth
Amendment[s].” Because the State failed to assert this theory in its opening brief and
has not cited any legal authority plainly demonstrating the existence of such a right,5
City of E. St. Louis v. Cir. Ct. for the Twentieth Jud. Cir., St. Clair Cnty, Ill., 986 F.2d
1142, 1144 (7th Cir. 1993) (holding “[m]unicipalities . . . are not ‘persons’ within the
meaning of the Due Process Clause” of the Fifth or Fourteenth Amendments).
The State has not argued on appeal or before the district court that its political
subdivisions may assert a due process claim in their own right. While we have some
doubt political subdivisions of the state are afforded constitutional rights apart from
those which derive from the state itself, we have not decided this issue previously,
and we decline to do so now.
Cf. Oklahoma ex. rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 4555
F.3d 1107, 1114 (10th Cir. 2006) (rejecting a state’s argument that “a universal
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we deem the argument waived. See, e.g., Primary Care Investors, Seven, Inc. v. PHP
Healthcare Corp., 986 F.2d 1208, 1212 (8th Cir. 1993) (explaining under Federal
Rule of Appellate Procedure 28(a)(5), a party’s failure to specify an error in its
opening brief and support its allegations with relevant authority may result in waiver).
C. Merits
Because the State lacks standing to bring a constitutional due process claim and
does not raise any additional arguments on appeal, the State is not entitled to relief.
We express no opinion as to the merits of the State’s arguments with respect to
Superintendent Hawkins or the validity of the Secretary’s decision-making process.
III. CONCLUSION
We dismiss the appeal for lack of standing.
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principle of justice” afforded the state a judicially enforceable right to procedural due
process in a federal agency’s dispute-resolution proceedings);Az. Dep’t of Pub.
Welfare v. Dep’t of Health, Educ. & Welfare, 449 F.2d 456, 478-79 (9th Cir. 1971)
(disapproving a state’s argument the Tenth Amendment to the United States
Constitution “embodies the State’s constitutionally nonexplicit fundamental right[]”
to procedural fairness in federal agency proceedings).
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