                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1150
                                   ___________

State of South Dakota; Moody           *
County, South Dakota,                  *
                                       *
             Appellants,               *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
United States Department of Interior;  *
David W. Anderson, Assistant           *
Secretary–Indian Affairs; Regional     *
Director, Great Plains Regional        *
Office, BIA,                           *
                                       *
             Appellees.                *
                                  ___________

                             Submitted: October 18, 2006
                                Filed: January 29, 2007
                                 ___________

Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       The State of South Dakota ("the State") and Moody County ("the County")
appeal from the district court's1 grant of summary judgment in favor of the United
States Department of the Interior ("the Department"), upholding the Department's

      1
       The Honorable Karen E. Schrier, Chief Judge, United States District Court for
the District of South Dakota.
decision to take land into trust for the Flandreau Santee Sioux Tribe ("FSST"). We
affirm.

                                   I. Background
      After purchasing 310 acres contiguous to its current reservation, the FSST
submitted an application to the Bureau of Indian Affairs (BIA), requesting that the
United States take the land into trust for the FSST's benefit pursuant to § 5 of the
Indian Reorganization Act (IRA). In its application, the FSST stated that while it had
"grown dramatically over the last thirty years in the area of membership, population,
governmental services and infrastructure, economic infrastructure, and in the area of
economic self-sufficiency," the FSST's trust land base "had not increased to meet [its]
growing needs." Therefore, it asked the BIA to take the land into trust for "the Tribe's
continued overall growth and development."

      According to the FSST, one of the "top priorities" of its Executive Committee
was to acquire additional lands for the tribe with the goal of

      expanding the Tribe's land base for the economic well being of the future
      generation of tribal members. While the Tribe currently realizes strong
      economic prosperity due to its success with its gaming operations, the
      Executive Committee acknowledged that they [sic] type of success
      realized through gaming may be temporary, and that gaming revenues
      . . . should be used to promote and ensure economic self-sufficiency and
      security for the future of the Tribe and its membership.

The FSST needed the land placed in trust "for future housing development to meet the
needs of the ever-growing tribal population."2


      2
      At the time of its application, the FSST had 2100 acres of land in trust, all of
which was located in Moody County. It had 695 members, approximately 225 of
whom were adult members living in Moody County. Between 1990 and 2000, the
FSST's membership increased by 155 members. Because of the employment

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        The FSST identified two potential uses for the land acquisition: (1) future
housing development and (2) agriculture. First, FSST contemplated "expanding
homesite leases for members wishing to utilize land for economic reasons." Numerous
tribal members had requested that the FSST expand leases to develop individual
economic opportunities, such as farming. Second, the FSST anticipated leasing some
land for agriculture. Income generated from the leasing of the land would "provide
additional revenues for general tribal government operations" and "help support
programs such as the Tribe's natural resources department . . . ." "Most importantly,
if the Tribe determines that the best use for this land should continue to be agricultural
leasing, then the Tribe will be guaranteed an additional source of income for the future
generation."

      The Regional Director of the BIA ("Director") reviewed the FSST's application,
seeking comments from both the State and the County. Specifically, the Director
sought information regarding zoning and the potential impact of lost tax revenue. In
response, the State and the County objected to the trust acquisition on numerous
grounds. After obtaining responses to these objections from the FSST, the Director
ultimately issued a letter granting the FSST's application to hold the land in trust. The
State and the County subsequently appealed the decision to the Interior Board of
Indian Appeals (IBIA), and the IBIA affirmed the Director's decision to grant the
application.

       The State and the County filed suit in federal district court, seeking a
declaratory judgment that the Director's decision to grant the FSST's application was
erroneous. Additionally, they sought an injunction to prevent the Department from
acquiring the land in trust for the FSST. The district court granted summary judgment
to the Department.



opportunities provided by the FSST's successful gaming operation, the number of
tribal members returning to the FSST reservation doubled between 1990 and 2000.

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                                      II. Discussion
        On appeal, the State and the County make three arguments. The State and
County aver that: (1) § 5 of the Indian Reorganization Act (IRA), 25 U.S.C. § 465, is
an unlawful delegation of power to the Department in violation of Article 1, Section
1, of the Constitution; (2) the Department acted outside of its statutory authority when
it acquired the land at issue, as trust acquisition did not fit the requisite economic
criteria; and (3) the land at issue does not constitute "Indian Country."

                                    A. Delegation
       The State and the County first ask us to reconsider our decision in State of
South Dakota v. United States Department of the Interior, 423 F.3d 790 (8th Cir.
2005), in which a panel of this court held that § 5 of the IRA, 25 U.S.C. § 465, does
not violate the nondelegation doctrine. We, however, may not overrule another panel's
decision. United States v. Prior, 107 F.3d 654, 660 (8th Cir. 1997). Therefore, we
affirm the district court's judgment that § 5 of the IRA is constitutional.

                                B. Statutory Authority
       "When reviewing the district court's opinion upholding the administrative
agency's decision, this court must render an independent decision on the basis of the
same administrative record as that before the district court." South Dakota, 423 F.3d
at 799 (internal quotations and citation omitted). If the Secretary of the Interior acted
arbitrarily or capriciously, abused his discretion, or otherwise failed to act in
accordance with the law, we will set aside the agency action. Id. (citing 5 U.S.C. §
706(2)(A)). When applying an agency regulation, "we accord substantial deference
to an agency's interpretation of its own regulation, unless the regulation violates the
Constitution or a federal statute, or unless the interpretation is plainly erroneous or
inconsistent with the regulation." Id. (internal quotations and citation omitted).




                                          -4-
       Thus, our task is to determine, based on our examination of the administrative
record, "(1) whether the Secretary [of the Interior] acted within the scope of his
authority; (2) whether the decision was based on a consideration of the relevant
factors; and (3) whether the Secretary followed the necessary procedural
requirements." Id. (internal quotations and citations omitted). Here, only the second
inquiry is at issue, as the State alleges that, under the factors enumerated in 25 C.F.R.
§ 151.10, the Secretary lacks statutory authority for acquiring the land in trust.

       Therefore, our focus is whether the Secretary considered the relevant factors in
granting the FSST's application to take the acquired land into trust. For the acquisition
of off-reservation land, described in 25 C.F.R. § 151.11, "the Secretary must consider
all but one of the factors in 25 C.F.R. § 151.10 (considerations for on-reservation
acquisitions) plus three additional considerations." South Dakota, 423 F.3d at 800.
Most pertinent to this case, § 151.10 requires the Secretary to consider: "(a) [t]he
existence of statutory authority for the acquisition and any limitations contained in
such authority; (b) [t]he need of the individual Indian or the tribe for additional land;
[and] (c) [t]he purposes for which the land will be used . . . ."

       The State and the County argue that the Secretary lacked statutory authority to
acquire the land at issue. Relying on our holding in South Dakota, they note that the
Secretary's discretion to acquire trust land "for the purpose of providing land for
Indians" is limited by the requirement that the land be acquired for self-support and
to ameliorate the damage of prior allotment policies. They assert that the district court
erred by not considering their argument that economic factors precluded the grant of
trust status. Furthermore, they claim that, even if the district court had considered
economic criteria, it would have found that the trust acquisition for the FSST did not
meet such criteria because the FSST is a "well-to-do" tribe and because the FSST
"essentially told the BIA that it would not make an economic argument to justify the
acquisition."



                                          -5-
       In upholding § 5 of the IRA as a constitutional delegation of power in South
Dakota, we noted that Congress's purpose in enacting 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 and paternalism." 423 F.3d at 798 (internal quotations and
citation omitted). Its broad goal was "to conserve and develop Indian lands and
resources." Id. (internal quotations and citation omitted). "Congress believed that
additional land was essential for the economic advancement and self-support of the
Indian communities." Id. And, although the legislative history of the IRA frequently
refers to "landless Indians," Congress's "broadly stated purposes of economic
advancement and additional lands for Indians" are not limited to only landless Indians.
Id. Congress "placed primary emphasis [in § 5] on the needs of individuals and tribes
for land and the likelihood that the land would be beneficially used to increase Indian
self-support." Id. Based on this congressional intent, we concluded that"[t]he 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" to provide land for Indians. Id.
at 799.

      After reviewing the administrative record, we conclude that the Secretary acted
within his statutory authority in acquiring the land in trust for the FSST. Specifically,
we hold that the Director's report sufficiently outlined the self-support and economic
benefits that the FSST would gain from the acquisition. The report's analysis is
consistent with the IRA's purpose of promoting economic advancement and self-
support for Indian tribes; therefore, the Director's report demonstrates that the
Secretary acted within his statutory authority, as it was limited in South Dakota. First,
the Director's report focused primarily on the FSST's need for additional land due to
increased tribal membership. Taking additional land into trust to accommodate
increased tribal membership is consistent with the statutory aim of enabling Indians




                                          -6-
to achieve self-support.3 Second, the Director's report mentioned the economic benefit
that the FSST would derive from the acquisition, stating:

      With this land set aside for agricultural uses and possible future needs,
      the Tribe has the opportunity to utilize any of their existing land for other
      cultural, governmental or social needs of the Tribe instead of reserving
      their existing land for housing purposes which they know they will need
      in the future. The income provided from the leasing of this property will
      be used to support the Tribe's Natural Resource Program, the purpose of
      which is to manage all of the Tribe's landbase and ensure that tribal, state
      and federal environmental concerns are met.

      With regard to the purpose for which the FSST will use the land, the Director
focused almost exclusively on the economic benefit that the FSST would gain,
explaining:

      This land will be used as agricultural land and will become part of the
      Tribe's Leasing Program which is administered by the Tribe's
      Department of Natural Resources. This property, while being leased, will
      provide approximately $27,500.00 per year of income. Along with the
      other tribal lands leased, approximately $100,000.00 will be received
      each year to supplement the Tribe's Department of Natural Resources.
      This agency of the Tribe provides, through Self-Determination,
      enforcement of tribal, state, and federal environmental requirements over

      3
        In holding that the Secretary acted within his discretion in acquiring the land
in trust for the FSST, we necessarily reject the State and the County's assertion that
the FSST does not need the land for "self-support" because it already owns the land.
In South Dakota, we recognized that "most of the land currently taken into trust has
been previously purchased by a tribe. . . ." 423 F.3d at 798. We concluded that "it
would be an unreasonable interpretation of 25 C.F.R. § 151.10(b) to require the
Secretary to detail specifically why trust status is more beneficial than fee status in the
particular circumstance." Id. at 801. Instead, it is sufficient for the Secretary to
"express the Tribe's needs and conclude generally that the IRA purposes were served."
Id.

                                           -7-
      all tribal trust lands and manages all of the Tribe's land base. Should the
      need arise in the future, the property may be set aside to provide housing
      sites for Tribal members.

(Emphasis added).

       Therefore, we hold that the Secretary possessed the statutory authority to
acquire the land in trust for the FSST and acted within his discretion in acquiring the
land in trust.

                                   C. Indian Country
       The State and the County's final argument on appeal is that the district court
erroneously determined that the land at issue constituted "Indian country." According
to the State and the County, the district court premised its decision upon a finding that
all land taken into trust off reservation, including the land at issue in this case,
constitutes "Indian country." They assert that the district court used this erroneous
finding to justify its determination that the Secretary adequately considered the factors
under 25 C.F.R. § 151.10(f), which require the Secretary to consider potential
jurisdiction and land use problems.

       The Supreme Court has, on a number of occasions, indicated that trust land may
properly be categorized as "Indian country." No precedent of the Supreme Court "has
ever drawn the distinction between tribal trust land and reservations . . . " Okla. Tax
Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 511 (1991).
To determine whether land is categorized as "trust land" or "reservation," the Court
asks "whether the area has been validly set apart for the use of the Indians as such,
under the superintendence of the Government." Id. (internal quotations and citation
omitted). "Congress has defined Indian country broadly to include formal and
informal reservations, dependent Indian communities, and Indian allotments, whether
restricted or held in trust by the United States." Okla. Tax Comm'n v. Sac & Fox


                                          -8-
Nation, 508 U.S. 114, 123 (1993) (emphasis added); see also Okla. Tax Comm'n v.
Chickasaw Nation, 515 U.S. 450, 453 n.2 (1995) (same).

        While this court has previously opined that "[f]or jurisdictional purposes, tribal
trust land beyond the boundaries of a reservation is ordinarily not Indian country," we
have also acknowledged that "[i]n some circumstances, off-reservation tribal trust land
may be considered Indian country." United States v. Stands, 105 F.3d 1565, 1572,
1572 n.3 (8th Cir. 1997) (citing United States v. Azure, 801 F.2d 336, 339 (8th Cir.
1986) (finding that "it would appear here that the Indian trust land, although not
within the boundaries of the Turtle Mountain Reservation, can be classified as a de
facto reservation, at least for purposes of federal criminal jurisdiction.")).

        Given the Supreme Court's acknowledgment that Congress broadly defined
"Indian country" to include trust land and this court's recognition that off-reservation
tribal land may be considered Indian country, we hold that the district court did not
err in its determination that the land taken into trust for the FSST constituted "Indian
country."

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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