United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 11-1745

___________

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. *

___________
Submitted: October 26, 2011

Filed: January 11, 2012

___________

Before RILEY, Chief Judge, WOLLMAN and BEAM, Circuit Judges.

___________

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 State

1

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-WahpetonSioux Tribe, TribalCouncil Resolution Nos. SWST01-010 to -012, -065. The BIA notified the State of the Tribe’s petition, and the State

filed comments in opposition to the request. 

The HonorableRoberto A. Lange, United States DistrictJudge for the District 1

of South Dakota.

-2-
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, the

2

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 as 2

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 Congress

3

“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.

-3-
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.

-4-
B. Procedural History

Having thus exhausted its administrative remedies,theState 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.

-5-
II. DISCUSSION

A. Standard of Review

“We review the district court’s grant ofsummary 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 violatesthe Constitution is a question of law which we review de novo. 

See Coal. for Fair and Equitable Regulation of Docks on Lake ofthe 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

-6-
four disputed parcels into trust,Roberts County will lose $254.92, $259.34, $1300.86,

and $1474.80, respectively, in annual property taxes. It isreasonably 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 isseeking 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 ofthe 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 not

4

The circuits are split asto whether a state’s politicalsubdivisions are afforded 4

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

-7-
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 thistheory 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., 455

5

F.3d 1107, 1114 (10th Cir. 2006) (rejecting a state’s argument that “a universal

-8-
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 authoritymay result in waiver).

C. Merits

Because the State lacks standing to bring a constitutional due process claimand

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.

______________________________

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).

-9-