Confederated Salish & Kootenai Tribes v. United States ex rel. Norton

Opinion by Judge ALARCÓN; Concurrence by Judge JAMES R. BROWNING.

The Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation (the “Tribes”) appeal from the order granting summary judgment in favor of Secretary of the Interior, Gale Norton (the “Secretary”). The Tribes sought a declaration that, upon the Tribes’ request, the Secretary is required to take certain land in trust for the Tribes or the tribal member to whom the land is sold pursuant to the Act of July 18, 1968, Pub.L. 90-402, 82 Stat. 356 (the “Flathead Act”). We affirm because we conclude that the Flathead Act authorizes the Secretary of the Interior to exercise his or her discretion in acting upon tribal requests for land acquisitions within the reservation boundaries.

I

The relevant portions of the Flathead Act provide as follows:

Act of July 18, 1968, Pub.L. No. 90-402, 82 Stat. 356 (emphasis added).

On June 2, 1999, the Tribes requested that the Department of the Interior place in trust a forty-acre parcel of grazing land, within the Flathead Indian Reservation, which the Tribes owned in fee. In an undated decision received by the Tribes on July 9, 1999, the Bureau of Indian Affairs (“BIA”)…

concurring:

I concur in the majority’s ultimate holding. I write separately because I believe that the term “authorized” is considerably more ambiguous than the majority opinion allows and that reliance on the deference due to the Secretary’s interpretation of the Flathead Act is a sounder ground for affirming.

The majority is quite correct that the term “authorized” may be interpreted as connoting a delegation not only of power or authority, but also of discretion. There is, however, another, equally acceptable definition of the term. Webster’s Third New International Dictionary defines the term simply to mean: “to give legality or effective legal force to.” Webster’s Third New International Dictionary 146 (1986). This alternative understanding of the term is reflected in the Black’s Law Dictionary definition published contemporaneously with passage of the Flathead Act: “ ‘Authorized’ is sometimes construed as equivalent to ‘permitted’; and sometimes as equivalent to ‘directed’; or to similar mandatory language.” Black’s Law Dictionary 169 (4th ed.l968)(internal citations omitted). To illustrate the directed or mandatory use of the term “authorized”, the 1968 edition of Black’s…