SUPREME COURT OF THE UNITED STATES

                      DEPARTMENT OF THE INTERIOR ET AL. v.
                                                       ___
                               SOUTH DAKOTA ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
                         APPEALS FOR THE EIGHTH CIRCUIT
                     No. 95-1956.  Decided October 15, 1996

  The petition for a writ of certiorari is granted.  The judgment is vacated and
the case is remanded to the United States Court of Appeals for the Eighth
Circuit with instructions to vacate the judgment of the United States District
Court for the District of South Dakota and remand the matter to the Secretary of
the Interior for reconsideration of his administrative decision.

  JUSTICE SCALIA, with whom JUSTICE O'CONNOR and JUSTICE THOMAS join,
dissenting.

  This case arises from the 1990 action of the Department of the Interior
acquiring 91 acres in trust for the Lower Brule Tribe of the Sioux Indians,
pursuant to S5 of the 1934 Indian Reorganizations Act (IRA), 48 Stat. 985, as
amended, 25 U. S. C. S465.  Respondents challenged this action in Federal
District Court, contending both that the Department's particular action violated
the Administrative Procedure Act (APA), 5 U. S. C. S706, and that the
Secretary's statutory authority to acquire lands under the IRA is unconstitu-
tional as a delegation of legislative power.
  Throughout this litigation, until now, it has been the Department's position
that IRA land acquisitions are unreviewable under the APA because they fall
within the exception for matters "committed to agency discretion by law." 
S701(a)(2).  The District Court agreed that APA review was unavailable, although
on different grounds, holding that since the United States had

2                  DEPARTMENT OF THE INTERIOR v. SOUTH DAKOTA
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acquired title, the Quiet Title Act (QTA), 28 U. S. C. S2409a, provided the sole
statutory means of challenging the action, and that the QTA explicitly prohibits
actions challenging title to Indian lands.  The District Court also upheld the
Secretary's constitutional authority to acquire land on behalf of the United
States under the IRA.  The Court of Appeals for the Eighth Circuit, however,
reversed on the ground that S5 of the IRA constitutes a delegation of
legislative power to the Secretary of the Interior and is hence
unconstitutional. 69 F. 3d 878 (1995).
  Following the Eighth Circuit's sweeping decision, the Department of the
Interior did an about-face with regard to the availability of judicial review
under the APA.  It promulgated a new regulation providing that "the Secretary
shall publish in the Federal Register, or in a newspaper of general circulation
serving the affected area a notice of his/her [sic] decision to take land into
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trust," and that "the Secretary shall acquire title in the name of the United
States no sooner than 30 days after the notice is published."  Department of the
Interior, Land Acquisitions (Nongaming), 61 Fed. Reg. 18082 (1996) (to be
codified at 25 CFR S151.12).  The preamble to that regulation recites that it is
being adopted "[i]n response to a recent court decision, State of South Dakota
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v. U. S. Department of the Interior, 69 F. 3d 878 (8th Cir. 1995)," and asserts
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that the procedure it sets forth "permits judicial review before transfer of
title to the United States."  The Solicitor General now represents to us that it
is the position of the Department of the Interior, as well as that of the
Department of Justice, that judicial review of an IRA land trust acquisition may
be obtained by filing suit within the 30-day waiting period, although action
will continue to be barred by the QTA after the United States formally acquires
title.
  The decision today - to grant, vacate, and remand in light of the Government's
changed position - is both unprecedented and inexplicable.  This Court has in

                   DEPARTMENT OF THE INTERIOR v. SOUTH DAKOTA                  3
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recent years occasionally entered a "GVR" in light of a position newly taken by
the Solicitor General where the United States was the prevailing party below. 
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See, e.g., Stutson v. United States, 516 U. S. ___ (1996); Schmidt v. Espy, 513
     ____  _______    _____________                        _______    ____
U. S. ___ (1994); Wells v. United States, 511 U. S. 1050 (1994); Reed v. United
                  _____    _____________                         ____    ______
States, 510 U. S. 1188 (1994); Chappell v. United States, 494 U. S. 1075 (1990). 
______                         ________    _____________
Even that extension of our earlier practice is in my view unsound.  See Stutson,
                                                                        _______
516 U. S., at ___ (slip op., at 6-8) (SCALIA, J., dissenting).  But we have
never before GVR'd simply because the Government, having lost below, wishes to
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try out a new legal position.  The unfairness of such a practice to the litigant
who prevailed in the Court of Appeals is obvious.  ("Heads I win big," says the
Government; "tails we come back down and litigate again on the basis of a more
moderate Government theory.")  Today's decision encourages the Government to do
what it did here: to "go for broke" in the Courts of Appeals, rather than get
the law right the first time.
  What makes today's action inexplicable as well as unprecedented is the fact
that the Government's change of legal position does not even purport to be
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applicable to the present case.  The Government now concedes only that APA
______________________________
review is available before the Secretary's taking of title under the IRA; it has
not altered its view that once title has passed to the United States APA review
is precluded by the QTA.  28 U. S. C. S2409a(a).  Pet. for Cert. 7.  Since in
this case title has passed, the Government's position in the present litigation
remains what it was: Judicial review is unavailable.
  The Government contends, however, that the Court of Appeals' determination
that the IRA was a delegation of legislative power was based in part upon the
unavailability of judicial review.  I fail to see how the availability of
judicial review has anything to do with that question; perhaps the Court of
Appeals thought otherwise, though its opinion on this point is somewhat

4                  DEPARTMENT OF THE INTERIOR v. SOUTH DAKOTA
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contradictory.*  If, however, judicial reviewability was germane to the Court of
              *                                      ___
Appeals' judgment, surely it was only such reviewability as would exist of
                                                                        __
right, and not such as would be accorded only at the discretion of the agency. 
_____
It is merely the latter that we have here: The Government concedes only that, if
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the Secretary chooses to announce his acquisition decision before the
                                                           ______
acquisition becomes effective (as the new regulation graciously requires),
judicial review is available.  It is inconceivable that this reviewability-at-
the-pleasure-of-the-Secretary could affect the constitutionality of the IRA in
anyone's view, including that of the Court of Appeals.
  Finally, the existence of the new regulation does not make this a case in
which a postjudgment change in the law applicable to the dispute warrants a
remand.  The preamble to the regulation acknowledges that "the Eighth Circuit
decision precludes the Secretary from taking into trust the land at issue in
that particular case," and explicitly states that "[t]he procedure announced in
today's rule . . . will apply to all pending and future trust acquisitions."  61
                                     _______     ______
Fed. Reg., at 18083 (emphasis added).  Of course that statement merely recites
the obvious, since, title already having been acquired in this case, it is quite
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impossible for the Secretary to provide 30-day advance notice of intent to take
title.  Evidently for that reason, the Government asks this Court, if it
declines to grant certiorari, not

                    
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   *At one point the court quoted approvingly its statement in United States v.
   *                                                           _____________
Garfinkel, 29 F. 3d 451, 459 (CA8 1994) that "[j]udicial review is a factor
_________
weighing in favor of upholding a statute against a nondelegation challenge."  69
F. 3d 878, 882 (1995).  This seems inconsistent, however, with the approach the
court takes elsewhere in its opinion, when it says: "We doubt whether the Quiet
Title Act precludes APA review of agency action by which the United States
acquires title.  But given our conclusion that S465 is an unconstitutional
________
delegation of power, we need not decide this issue."  Id., at 881, n. 1.
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                   DEPARTMENT OF THE INTERIOR v. SOUTH DAKOTA                  5
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merely to GVR, but to do so "with instructions that the judgment of the district
court sustaining the Secretary's decision also be vacated and that the matter,
in turn, be remanded to the Secretary of the Interior for reconsideration and
issuance of a new administrative decision."  App. to Pet. for Cert. 25.  I
cannot imagine where we would derive the authority for this.  If, as the Govern-
ment asserts in its brief, statutory judicial review of a land-trust decision
under S5 of the IRA is unavailable once title has passed to the United States,
then certainly federal courts cannot construct the necessary conditions for
judicial review by simply ordering the land acquisition undone.
  In sum, there is no basis in precedent or in reason for a GVR in the present
case.  Since a federal statute has been held unconstitutional, I would grant the
petition for certiorari.