Petition for Writ of Certiorari — Northern Arapaho Tribe, et al., Petitioners v. Wyoming, et al.

No. ______

In the

Supreme Court of the United States

________________

NORTHERN ARAPAHO TRIBE,

v.

Petitioner,

STATE OF WYOMING;

WYOMING FARM BUREAU FEDERATION,

________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Tenth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

ANDREW W. BALDWIN

BERTHENIA CROCKER

KELLY A. RUDD

BALDWIN,

CROCKER &

RUDD, P.C.

P.O. Box 1229

Lander, WY 82520

PAUL D. CLEMENT

Counsel of Record

GEORGE W. HICKS, JR.

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Petitioner

February 16, 2018

QUESTION PRESENTED

This Court has instructed that only Congress may

diminish the boundaries of an Indian reservation, and

only when its intent is clear and plain. Applying that

standard, this Court has found statutes to effect

diminishment only in three circumstances: (1) the text

provides for a guaranteed sum-certain payment to the

tribe in exchange for reservation land: (2) the statute

includes a provision restoring reservation land to the

public domain; or (3) the negotiations and legislative

history surrounding the statute unequivocally support

diminishment.

In the decision below, a divided Tenth Circuit

panel blazed a fourth path that undervalues

sovereignty interests and gives short shrift to this

Court’s most recent decision on the question. Based

primarily on language of cession, unaccompanied by

any sum-certain or public-domain language or

unequivocal legislative history, the court of appeals

concluded that a 1905 Act of Congress diminished the

Wind River Reservation in Wyoming—home to two

Indian tribes—to one-third its size. In reaching that

result, the Tenth Circuit overruled two federal

agencies that concluded that the 1905 Act did not

diminish the Reservation, split from the Eighth

Circuit on virtually identical statutory text, and, in

the dissenting judge’s view, “create[d] a new low-water

mark in diminishment jurisprudence.”

The question presented is:

Whether Congress evinced a clear and plain

intent in the 1905 Act to diminish the Wind River

Reservation by nearly two-thirds simply by using

language of cession.

ii

PARTIES TO THE PROCEEDING

Petitioner Northern Arapaho Tribe intervened as

a respondent in the court of appeals.

Respondents State of Wyoming and the Wyoming

Farm Bureau Federation were petitioners in the court

of appeals.

Non-intervenor respondents in the court of

appeals included the U.S. Environmental Protection

Agency; E. Scott Pruitt, in his official capacity as

Administrator of the U.S. Environmental Protection

Agency; and Doug Benevento, in his official capacity

as Acting Region 8 Administrator of the U.S.

Environmental Protection Agency.

Additional intervenors in the court of appeals

were the Eastern Shoshone Tribe; the City of

Riverton, Wyoming; and Fremont County, Wyoming.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

STATUTORY PROVISIONS INVOLVED ................. 4

STATEMENT OF THE CASE ................................... 4

A. General Principles of Sovereignty and

Diminishment ............................................... 4

B. The Wind River Reservation and the

1905 Act ........................................................ 7

C. The EPA Proceedings ................................. 11

D. The Tenth Circuit’s Decision ..................... 14

REASONS FOR GRANTING THE PETITION....... 17

I.

The Tenth Circuit’s Decision Conflicts With

Precedent From This Court And The Eighth

Circuit ................................................................ 19

II. The Tenth Circuit’s Conclusion That The

Wind

River

Reservation

Has

Been

Diminished Is Profoundly Wrong ..................... 26

A. The Statutory Text Does Not Evince the

Requisite Clear and Plain Congressional

Intent to Diminish ...................................... 27

B. The Legislative History Does Not

Support Diminishment .............................. 31

iv

C. The Subsequent Treatment of the Land

Further

Counsels

Against

Diminishment ............................................. 34

CONCLUSION ......................................................... 36

Appendix A

Opinion, United States Court of Appeals for

the Tenth Circuit, State of Wyoming

v. United States Environmental Protection

Agency, et al., Nos. 14-9512, 14-9514 (Feb. 22,

2017)............................................................. App-1

Appendix B

Order Denying Petition for Rehearing,

United States Court of Appeals for the Tenth

Circuit, State of Wyoming v. United States

Environmental Protection Agency, et al., Nos.

14-9512,

14-9514

(Nov. 7, 2017) ............................................. App-56

Appendix C

Approval of Application Submitted by

Eastern Shoshone Tribe and Northern

Arapaho Tribe for Treatment in a Similar

Manner as a State Under the Clean Air Act,

Environmental Protection Agency, 78 Fed.

Reg. 76,829, Nos. R08-WR-2013-0007; FRL9904-28-Region-8

(Dec. 19, 2013) ........................................... App-59

Appendix D

Legal Analysis of the Wind River Indian

Reservation

Boundary,

Environmental

Protection Agency, No. EPA-1-R08-20130007 (Dec. 6, 2013) .................................... App-65

v

Appendix E

Letter to the Honorable Scott C. Fulton,

General

Counsel,

United

States

Environmental Protection Agency, from

United States Department of the Interior,

Office of the Solicitor (Oct. 26, 2011) ..... App-201

Appendix F

1905 Act, 33 Stat. 1016 ........................... App-252

Appendix G

1897

Thermopolis

Purchase

Act,

30 Stat. 93 ................................................ App-267

Appendix H

1874

Lander

Purchase

Act,

18 Stat. 291 .............................................. App-273

vi

TABLE OF AUTHORITIES

Cases

Ash Sheep Co. v. United States,

252 U.S. 159 (1920) ................................ 3, 16, 23, 36

Cherokee Nation v. Georgia,

30 U.S. (5 Pet.) 1 (1831) ..................................... 3, 35

Choctaw Nation v. Oklahoma,

397 U.S. 620 (1970) .................................................. 6

DeCoteau v. Dist. Cty. Court

for Tenth Judicial Dist.,

420 U.S. 425 (1975) ........................................ passim

Flute v. United States,

808 F.3d 1234 (10th Cir. 2015)................................ 8

Hagen v. Utah,

510 U.S. 399 (1994) ................................ 5, 18, 24, 35

In re Gen. Adjudication of All Rights to Use

Water in the Big Horn River Sys.,

753 P.2d 76 (Wyo. 1988) .................................. 13, 23

Mattz v. Arnett,

412 U.S. 481 (1973) .................................... 22, 25, 36

Nebraska v. Parker,

136 S. Ct. 1072 (2016).................................... passim

Nw. Bands of Shoshone Indians

v. United States,

324 U.S. 335 (1945) .................................................. 4

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977) ........................................ passim

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) .................................................. 35

vii

Seymour v. Superintendent,

368 U.S. 351 (1962) ........................................ passim

Solem v. Bartlett,

465 U.S. 463 (1984) ........................................ passim

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998) ........................................ passim

United States v. Celestine,

215 U.S. 278 (1909) ................................................ 27

United States v. Dion,

476 U.S. 734 (1986) .................................................. 6

United States v. Grey Bear,

828 F.2d 1286 (8th Cir. 1987)................ 3, 16, 18, 25

United States v. Mazurie,

419 U.S. 544 (1975) ................................................ 35

Constitutional Provision

Wyo. Const. art. XXI................................................. 31

Statutes

2 U.S.C. §7601(d) ...................................................... 12

28 U.S.C. §1254(1) ...................................................... 4

42 U.S.C. §7607(b)(1) ................................................ 14

Fort Bridger Treaty, 15 Stat. 673 (1868) ................... 7

Lander Purchase Act, 18 Stat. 291 (1874) ................. 4

Wyoming Enabling Act, 26 Stat. 22 (1890) ............. 31

Thermopolis Purchase Act, 30 Stat. 93 (1897) .......... 4

1905 Act, 33 Stat. 1016 (1905) ................................... 4

Regulation

40 C.F.R. Part 49 ...................................................... 12

viii

Other Authority

H.R. Rep. No. 58-3700 (1905) ............................. 11, 30

PETITION FOR WRIT OF CERTIORARI

This case presents the exceptionally important

question whether Congress intended to strip two

Indian tribes that live on Wyoming’s only Indian

reservation of two-thirds of their sovereign territory.

A divided Tenth Circuit panel held that the Wind

River Reservation—home to the Northern Arapaho

and Eastern Shoshone Tribes since the nineteenth

century—was “diminished” to one-third its size by a

1905 Act of Congress that provided the Tribes with

practically nothing in return.

To reach that

conclusion, the panel overruled contrary judgments

from two federal agencies, departed from this Court’s

precedent, and split from the Eighth Circuit. As the

dissenting judge correctly observed, the decision below

“creates a new low-water mark in diminishment

jurisprudence.” App.41 (Lucero, J., dissenting). The

need for certiorari could not be more pressing.

This case concerns the Wind River Reservation in

Wyoming, which was established by federal treaty in

1868. Over the next several decades, the Tribes twice

permanently relinquished portions of their land to the

United States in exchange for fixed payments. Those

statutes used language precisely suited to

diminishment and plainly and unambiguously

modified the United States’ treaty obligations and

reduced the sovereign territory of the Tribes. Thus, in

1874, Congress ratified a statute that “change[d] the

southern limit” of the Reservation in exchange for a

sum-certain. App.274. In 1897, in exchange for

another sum-certain, the Tribes agreed to “forever and

absolutely” relinquish another segment of the

2

Reservation, most of which was then “declared to be

public lands of the United States.” App.267.

But in 1905, Congress took a different tack and

passed a statute in which the Tribes would “cede,

grant, and relinquish” two-thirds of their land to the

United States as a “trustee,” who would attempt to sell

parcels of the land to settlers and “pay over to [the

Tribes] proceeds from the sale[s] thereof only as

received.” App.252; App.263. That approach—which

provided zero guaranteed compensation to the Tribes

and, in fact, produced few land sales and little revenue

for the Tribes—was consistent with contemporaneous

“surplus land acts,” which guaranteed no lump-sum

payment to Tribes and “did no more than open the way

for non-Indian settlers to own land on the

reservation,” Seymour v. Superintendent, 368 U.S.

351, 356 (1962), without “diminish[ing] the

reservation’s boundaries,” Nebraska v. Parker, 136 S.

Ct. 1072, 1080 (2016).

For a century, the Tribes understood their

Reservation to be undiminished by the 1905 Act. And

in 2008, they applied to the Environmental Protection

Agency (“EPA”) to manage certain air-quality

programs affecting that land. After Wyoming and

others objected that the 1905 Act diminished the

Reservation, EPA and the Interior Department

exhaustively considered the matter, and both agreed

that the 1905 Act did no such thing. But a Tenth

Circuit panel reached the opposite result in a divided

decision. According to the majority, the Tribes

relinquished the vast majority of their sovereign

territory for the promise (and receipt) of almost

nothing.

3

The Tenth Circuit’s decision is untenable. This

Court has admonished that only Congress may

diminish an Indian reservation and only when its

intent is “clear and plain.” South Dakota v. Yankton

Sioux Tribe, 522 U.S. 329, 343 (1998). The Tenth

Circuit’s determination that Congress acted with such

intent here flouts 100 years of diminishment

jurisprudence, from this Court’s 1920 decision in Ash

Sheep Co. v. United States, 252 U.S. 159 (1920), to this

Court’s 2016 decision in Parker. Moreover, the Tenth

Circuit’s conclusion conflicts with an Eighth Circuit

decision holding that a materially identical statute did

not diminish a reservation. United States v. Grey

Bear, 828 F.2d 1286 (8th Cir. 1987). Although that

split is reason enough to grant certiorari, the decision

below conflicts with the conclusions of two federal

agencies and is profoundly wrong. Indeed, this case is

little different from Parker, decided just two Terms

ago, but barely mentioned by the Tenth Circuit. As in

Parker, earlier acts used distinct language that clearly

evinced an intent to diminish. But, as in Parker, the

relevant act merely opened the reservation to such

land sales as the market would bear, which is

insufficient to overturn previous treaty promises or

sever the Tribes’ sovereignty.

This Court stated long ago that “Indians have

rights of occupancy to their lands” that are “sacred.”

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 48

(1831). No Indian tribe should be deprived of its

sovereign territory without this Court’s review, and

certainly not under novel reasoning incompatible with

the precedents of this Court and other courts of

appeals. Certiorari is plainly warranted.

4

OPINIONS BELOW

The Tenth Circuit’s opinion is reported at 875

F.3d 505 and reproduced at App.1-55. The EPA

decision at issue before the Tenth Circuit is reported

at 78 Fed. Reg. 76,829 (Dec. 19, 2013) and reproduced

at App.59-64. The legal analyses of EPA and the

Interior Department are unreported but reproduced at

App.65-251.

JURISDICTION

The Tenth Circuit issued its opinion on February

22, 2017. On November 7, 2017, the Tenth Circuit

denied a petition for rehearing en banc, but the panel

sua sponte granted panel rehearing and issued an

amended opinion. On January 17, 2018, Justice

Sotomayor extended the time for filing this petition to

and including March 7, 2018.

This Court has

jurisdiction under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

The 1905 Act, 33 Stat. 1016, the 1897 Thermopolis

Purchase Act, 30 Stat. 93, and the 1874 Lander

Purchase Act, 18 Stat. 291, are reproduced at

App.252-75.

STATEMENT OF THE CASE

A. General Principles of Sovereignty and

Diminishment

“In the latter half of the nineteenth century, large

sections of the western States and Territories were set

aside for Indian reservations.” Solem v. Bartlett, 465

U.S. 463, 466 (1984). As the century progressed, the

westward migration of settlers, Nw. Bands of

Shoshone Indians v. United States, 324 U.S. 335, 341

(1945); App.4, the “need for cash and direct

5

assistance,” DeCoteau v. Dist. Cty. Court for Tenth

Judicial Dist., 420 U.S. 425, 431 (1975), and other

factors led tribes to permanently relinquish

reservation land in exchange for fixed payments. This

is known as “diminishment,” which “freed [Indian]

land of its reservation status.” Hagen v. Utah, 510

U.S. 399, 409 (1994).

Toward the beginning of the twentieth century,

Congress began to alter its approach toward Indian

lands. “Congress passed a series of surplus land acts

… to force Indians onto individual allotments carved

out of reservations and to open up unallotted lands”—

i.e., “surplus” lands—“for non-Indian settlement.”

Solem, 465 U.S. at 466-67. The language of these

surplus lands act differed, with some obligating the

United States to make immediate sum-certain

payments, and others simply opening land to

settlement with tribes paid only to the extent of sales

to settlers by the United States as trustee. “[I]t is

settled law that some surplus land acts diminished

reservations,” while “other surplus land acts did not.”

Id. at 469.

“The framework … to determine whether an

Indian reservation has been diminished is well

settled.” Parker, 136 S. Ct. at 1078. “The first and

governing principle is that only Congress can divest a

reservation of its land and diminish its boundaries.”

Solem, 465 U.S. at 470. Thus, “[o]nce a block of land

is set aside for an Indian Reservation and no matter

what happens to the title of individual plots within the

area, the entire block retains its reservation status

until Congress explicitly indicates otherwise.” Id.

“The mere fact that a reservation has been opened to

6

settlement does not necessarily mean that the opened

area has lost its reservation status.” Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584, 586-87 (1977).

The “touchstone to determine whether a given

statute diminished or retained reservation boundaries

is congressional purpose.” Yankton, 522 U.S. at 343.

Because diminishment simultaneously reduces a

tribe’s sovereign territory and modifies earlier treaty

promises of the United States, this Court has long

required Congress’ intent to diminish to be “clear and

plain.” United States v. Dion, 476 U.S. 734, 738-39

(1986). Accordingly, courts begin with a “presumption

that Congress did not intend to diminish the

reservation,” Solem, 465 U.S. at 481, and “any

doubtful expressions … should be resolved in the

Indians’ favor,” Choctaw Nation v. Oklahoma, 397

U.S. 620, 631 (1970).

This Court employs a three-factor framework to

discern whether Congress intended diminishment.

The starting point is the statutory text, which

provides the “most probative evidence.” Parker, 136 S.

Ct. at 1079. Language “providing for the total

surrender of tribal claims in exchange for a fixed

payment” or a “provision restoring portions of a

reservation to ‘the public domain’” are “hallmarks” of

diminishment. Id. Second, courts examine the

“history surrounding the passage of the … Act.” Id. at

1080. Because the statutory language is paramount,

however, the historical evidence must “unequivocally

reveal a widely-held, contemporaneous understanding

that the affected reservation would shrink as a result

of the proposed legislation.” Solem, 465 U.S. at 471.

Third, courts “consider both the subsequent

7

demographic history of opened lands … as well as the

United States’ ‘treatment of the affected areas.’”

Parker, 136 S. Ct. at 1081. As with the legislative

history, evidence regarding the subsequent treatment

of the land must “unequivocally” support

diminishment. Id. at 1080. This Court “has never

relied solely on” the subsequent treatment of land to

find diminishment. Id. at 1081.

B. The Wind River Reservation and the

1905 Act

The Wind River Reservation was established in

present-day Wyoming in 1868 by a federal treaty

between the Eastern Shoshone Tribe and the United

States. See Fort Bridger Treaty, 15 Stat. 673 (1868).

The 1868 Treaty guaranteed the Eastern Shoshone

approximately 3 million acres of land as “their

permanent home” and precluded “permanent

settlement elsewhere,” but it also permitted “other

friendly Tribes or individual Indians” to settle on the

Reservation “as from time to time [the Eastern

Shoshone] may be willing, with the consent of the

United States, to admit amongst them.” 1868 Treaty,

arts. II, IV. In 1878, pursuant to this provision, the

Northern Arapaho Tribe joined the Eastern Shoshone

on the Reservation, where they have a sovereign

“equal right” to reservation land, see App.5-6; App.7273; JA366,1 after their first reservation, which

spanned four states, had been overrun by settlers and

the Tribe brutally attacked by the U.S. military.2 The

1 “JA” refers to the Joint Appendix filed with the Tenth Circuit.

2 In 1864, for example, the U.S. Army attacked, killed, and

mutilated unarmed Tribe members—largely women and

children—in what is known as the Sand Creek Massacre. See

8

Reservation is now the only sovereign home for the

Northern Arapaho and the only Indian reservation in

Wyoming today.

In the decades following the 1868 Treaty, the

Tribes negotiated two land transactions with the

federal government that were ultimately enshrined in

federal statutes. The first is known as the “Lander

Purchase,” which Congress ratified in 1874. See

App.273-75. In the Lander Purchase, the Eastern

Shoshone agreed to relinquish approximately 700,000

acres of Reservation land to the United States in

exchange for a fixed sum of $25,000. App.274-75. As

the Lander Purchase Act explains, the statute was

intended to “change the southern limit of said

reservation.” App.274 (emphasis added). The Lander

Purchase indisputably diminished the Wind River

Reservation.

Subsequently, the federal government pursued a

much larger swath of Reservation land north of the

Big Wind River. But those attempts failed. In 1891,

a federal commission offered a fixed sum of $600,000

to the Tribes if they agreed to “cede, convey, transfer,

relinquish and surrender, forever and absolutely … all

[the Tribes’] right, title, and interest, of every kind and

character, in and to the lands.” App.22. The Northern

Arapaho squarely opposed the offer, and Congress

declined to ratify it. JA375-76. In 1893, Congress

dispatched another commission with a fixed-sum offer

of $750,000 for the same land. App.22. “Despite the

Flute v. United States, 808 F.3d 1234, 1237-39 (10th Cir. 2015)

(noting that “although the United States promised to pay

reparations to the survivors … it never fulfilled its obligations”).

9

higher offer, the Tribes refused three different

proposals, and no agreement was reached.” App.22.

In 1897, the Tribes agreed to a far more modest

agreement known as the “Thermopolis Purchase,” in

which they sold approximately 55,000 acres of land to

the federal government.

Congress ratified that

agreement in 1897. See App.267-72 As with the

Lander Purchase Act, the intent to diminish the

Reservation was clear: The Tribes agreed to “cede,

convey, transfer relinquish, and surrender forever and

absolutely all their right, title, and interest” in the

land in exchange for $60,000. App.267-68 (emphasis

added).

Moreover, when Congress ratified the

Thermopolis Purchase, the government relinquished

“one mile square” of the land “unto the State of

Wyoming,” and the remainder was “declared to be

public lands of the United States.” App.272. The

Thermopolis Purchase indisputably diminished the

Wind River Reservation.

In 1904, Congress adopted a different approach

toward the lands north of the Big Wind River.

Congress no longer sought to acquire the land outright

in exchange for a sum-certain, but instead proposed

opening the land to entry by homesteaders. As the

federal delegate explained when opening the

negotiations, “My friends, I am sent here at this

time … to present to you a proposition for the opening

of certain p[or]tions of your reservation for settlement

by the whites.” JA510. Rather than pay the Tribes

“lump sum consideration” for the lands, the delegate

continued, the Tribes would make “the surplus lands[]

of [the] reservation open to settlement” and, in turn,

would receive “the proceeds of the sale of the land” to

10

the extent that the federal government was able to sell

plots to individual settlers. JA510-16. That approach

was consistent with contemporaneous surplus land

acts, which “did no more than open the way for nonIndian settlers to own land on the reservation,”

Seymour, 368 U.S. at 356, without “diminish[ing] the

reservation’s boundaries,” Parker, 136 S. Ct. at 1080.

Following these discussions, Congress passed the

1905 Act at issue here.3 The 1905 Act contained no

sum-certain payment to the Tribes and no language

restoring lands to the public domain. See App.252-66.

Instead, the Act provided that the Tribes would “cede,

grant, and relinquish to the United States, all right,

title, and interest which they may have to all the lands

embraced within the said reservation” (approximately

1.5 million acres), except lands south of the Big Wind

River and west of the Popo Agie River (approximately

800,000 acres). App.252-53. The government would

“act as trustee for said Indians to dispose of said lands

and … pay over to them the proceeds received from the

sale thereof only as received,”App.263, with certain

amounts to be allocated for “an irrigation system,”

“live stock,” a “school fund,” and other purposes,

App.256-57. The 1905 Act emphasizes, however, that

the government was not bound “to purchase any

portion of the lands … or to guarantee to find

purchasers.” App.263.

The 1905 Act included other relevant provisions.

One proviso discusses the rights of a prominent

mineral leaseholder on the Reservation named Asmus

3 Federal negotiators never obtained Northern Arapaho

consent for the 1904 agreement. App.79 n.6.

11

Boysen, whose lease from the Tribes included a clause

providing that it “shall terminate” in “the event of the

extinguishment … of the Indian title to the lands

covered.” H.R. Rep. No. 58-3700, pt. 2, at 3 (1905).

After a debate about the effect of the 1905 Act on the

leasehold and assurances that the Act would not

terminate the lease, Congress included a proviso

expressly stating that the Act would not “impair the

rights” of Boysen. App.262. In addition, the 1905 Act

included a provision allowing tribal members who had

selected allotments on the opened lands to “have the

same allotted and confirmed to him or her,” thereby

ensuring the Tribes could maintain a physical

presence on the opened lands. App.253. Furthermore,

the 1905 Act omitted certain provisions Congress

routinely used in other statutes diminishing Indian

reservations, such as a “school lands provision”

reserving sections of the land for common schools. See

Yankton, 522 U.S. at 349-50.

The individual land sales to settlers envisioned by

the 1905 Act largely failed to materialize. Fewer than

200,000 of the nearly 1.5 million acres opened by the

1905 Act were sold, and the Tribes received only

modest proceeds, far less than the $600,000 and

$750,000 offered and rejected for a lump-sum sale.

App.180. Today, more than 75 percent of the land

covered by the 1905 Act is land held in trust by the

United States for the benefit of the Tribes and their

members. App.180.

C. The EPA Proceedings

The Clean Air Act authorizes EPA to treat Indian

tribes like states in managing certain air-quality

programs in areas under tribal jurisdiction. See 42

12

U.S.C. §7601(d); 40 C.F.R. Part 49. To qualify,

interested tribes must submit applications to EPA

describing the areas over which they claim

jurisdiction. App.7.

In 2008, the Northern Arapaho and Eastern

Shoshone filed an application with EPA concerning all

lands encompassed by the 1868 Treaty minus those

permanently relinquished in the 1874 Lander

Purchase and the 1897 Thermopolis Purchase. App.7.

The state of Wyoming and the Wyoming Farm Bureau

Federation—respondents here—objected, contending

that the 1905 Act diminished the Reservation. App.8.

In 2009, EPA sought an independent analysis

from the Interior Department (“Interior”). In a

detailed

opinion

letter,

Interior

found

no

diminishment. See App.201-51. As Interior’s opinion

explained, “[u]nlike the Lander Purchase and the

Thermopolis Purchase, the language of the 1905 Act,

its legislative history, and the circumstances

surrounding its enactment do not reveal clear

congressional intent to diminish and alter the exterior

boundaries of the Wind River Reservation.” App.251.

EPA agreed with Interior in its own exhaustive

83-page legal analysis. See App.65-200. Beginning

with the 1905 Act’s text, EPA similarly observed that,

“particularly in comparison with the 1874 Lander and

1897 Thermopolis Purchases Acts, … the operative

language does not evince clear Congressional intent to

also alter and diminish the Reservation boundaries,

nor was it necessary to do so in order to achieve the

Act’s main purpose of opening the lands to

settlement.” App.115-16. EPA emphasized that the

“1905 Act did not provide for a fixed sum certain

13

payment to the Tribes in exchange for the lands,” but

instead “predicated payment to the Tribes on

prospective sales to homesteaders, and the United

States expressly declined to commit to conduct any

such sales.” App.116. EPA thought it unlikely that

Congress intended “to immediately reduce the

Reservation by more than half without any guarantee

that the Tribes would ever receive compensation in

consideration for those lands.” App.116. EPA noted

that the United States had previously taken the

position that the 1905 Act did not evince clear intent

to diminish. App.117; see In re Gen. Adjudication of

All Rights to Use Water in the Big Horn River Sys. (Big

Horn I), 753 P.2d 76 (Wyo. 1988).

EPA further concluded that “the circumstances

surrounding the 1905 Act … do not support a finding

of clear Congressional intent that the Act would

permanently sever and alter the exterior boundaries

of the Reservation.” App.119. For example, EPA

noted that the federal delegate who met with the

Tribes “repeatedly referred to the bill as opening the

Reservation to settlement by non-Indians, and did not

speak in terms of altering the 1868 Treaty terms with

respect to the exterior boundaries of the Reservation.”

App.120. EPA likewise observed that the 1905 Act

expressly protected the rights of leaseholder Boysen,

App.129-34, and it concluded from its review of the

legislative history that the “prevailing view” within

Congress was that the “1905 Act would retain a Tribal

trust interest in the opened lands and that those lands

would not be returned to the public domain,” App.133.

In addition, EPA thought Congress’ “explicit deletion”

of the school lands provision, App.137, “indicate[d]

Congress’ understanding that the opened area would

14

retain its Reservation character,” App.135. Finally,

EPA concluded that events subsequent to the 1905 Act

did not clearly demonstrate that the Reservation had

been diminished. App.147-99.

In light of its analysis, EPA approved the Tribes’

application claiming jurisdiction over the lands in the

1905 Act. App.59.

D. The Tenth Circuit’s Decision

Respondents petitioned for review of EPA’s

boundary determination. See 42 U.S.C. §7607(b)(1).

In a sharply divided opinion, the Tenth Circuit

vacated EPA’s determination and concluded that the

1905 Act had diminished the Wind River Reservation.

The majority acknowledged that Congress must

“clearly express[]” its intent to diminish, and

diminishment “‘will not be lightly inferred.’” App.9.

The majority nevertheless concluded the 1905 Act

cleared that high bar. The majority first noted that

the 1905 Act’s language provided that the Tribes

would “cede, grant, and relinquish to the United

States, all right, title, and interest” in the land in

dispute. App.12. The majority deemed this language

“’precisely suited’ to diminishment,” App.12, and

“[t]he lack of a sum certain payment and the inclusion

of a trusteeship provision do not compel a different

conclusion,” App.21. According to the majority, sumcertain language was unnecessary because the 1905

Act included a “hybrid payment scheme,” in “which

different amounts derived from the proceeds of sales

of the ceded lands are allocated to specific funds,” such

as for the purchase of livestock.

App.17-18.

Furthermore, the majority continued, the absence of

any language restoring the disputed lands to the

15

public domain was irrelevant, because “whether lands

became ‘public lands’ … is ‘logically separate’ from

diminishment.” App.20. At bottom, the majority

concluded, “Congress’s use of the words ‘cede, grant,

and relinquish’ can only indicate one thing—a

diminished reservation.” App.16.

Next, the majority examined the historical

context surrounding the 1905 Act’s passage. The

majority acknowledged that only “‘unequivocal

evidence derived from the surrounding circumstances

may support the conclusion that a reservation has

been diminished.’” App.21. But the court never

identified any such “unequivocal evidence,” and

believed that it “need not search for” it, “for the statute

contains express language of cession.” App.21. The

majority did mention congressional efforts to diminish

the Wind River Reservation in 1891 and afterwards

and related statements. The majority conceded that

none of the statements concerned the 1905 Act, but it

deemed the unenacted 1891 proposal a “predicate” for

the 1905 Act. App.29. Drawing an analogy to Rosebud

Sioux Tribe v. Kneip, the majority suggested that

“Congress’s consistent attempts at the turn of the

century to purchase the disputed land compel the

conclusion that this intent continued through the

passage of the 1905 Act.” App.29-31. The majority

acknowledged that the Boysen provision and the

school lands provision “may cut against … a finding of

diminishment,” but it reasoned those provisions could

not “defeat” a finding of diminishment. App.30 n.14.

Finally, the majority examined the history

following the enactment of the 1905 Act. The court

was “unable to discern clear congressional intent from

16

the subsequent treatment” and thus found “little

evidentiary value” in it. App.32.

Judge Lucero dissented, deeming the majority’s

opinion “a new low-water mark in diminishment

jurisprudence.” App.41. Judge Lucero first observed

that the 1905 Act did not provide the Tribes with a

lump-sum payment or “restore the lands at issue to

the public domain.” App.41-43. Instead, “the lands at

issue here were held in trust under the Act” and

therefore “remained Indian lands,” as this Court had

concluded in 1920 when interpreting a similar statute.

App.43 (citing Ash Sheep, 252 U.S. 159). In light of

the absence of either sum-certain or public-domain

language, Judge Lucero continued, “we could easily

interpret the language of cession contained in the 1905

Act as merely opening portions of the Wind River

Reservation to settlement,” as the Eighth Circuit

concluded when addressing a materially identical

statute. App.44-45 (citing Grey Bear, 828 F.2d 1286).

Judge Lucero thus faulted the majority for “reach[ing]

a conclusion squarely opposite to one of our sibling

circuits, creating a needless circuit split.” App.45.

Judge Lucero next explained that the

“surrounding circumstances” did not support

diminishment, let alone “unequivocally.” App.46. For

example, “[b]y striking the provision” regarding school

lands, “Congress recognized that Wyoming could [not]

take … lands on the reservation.” App.48. Likewise,

the Boysen provision demonstrated “that the opened

areas would retain their reservation status.” App.49.

And Judge Lucero rejected the majority’s reliance on

the unenacted proposals from the 1890s, because

those failed negotiations took place “nearly a

17

generation prior to the passage of the 1905 Act.”

App.50. “At best,” Judge Lucero concluded, “the

historical record is mixed regarding Congress’ intent,”

and therefore “it is insufficient to overcome ambiguity

in the statutory text.” App.52.

Judge Lucero did agree with the majority on one

issue: “the post-Act record is so muddled it does not

provide evidence of clear congressional intent.”

App.53. Accordingly, in the absence of clear evidence

of Congress’ intent to diminish, Judge Lucero

concluded “the 1905 Act did not diminish the Wind

River Reservation.” App.55.

Both Tribes filed petitions for rehearing en banc.

The court denied the petitions after modifying the

majority and dissenting opinions.

REASONS FOR GRANTING THE PETITION

The Tenth Circuit’s decision strips the Northern

Arapaho and Eastern Shoshone Tribes of a substantial

portion of their sovereign homeland—a devastating

holding that conflicts with this Court’s precedent, a

published Eighth Circuit decision, and the judgments

of two federal agencies. By any measure, the Tenth

Circuit’s highly consequential and deeply flawed

holding warrants this Court’s review.

The Tenth Circuit’s decision hinges on the notion

that the phrase “cede, grant, and relinquish”

unaccompanied by sum-certain or public-domain

language is “precisely suited” to and “can only indicate

… diminishment. App.12; App.16. That proposition

is irreconcilable with this Court’s precedents. This

Court has never held that “cession” language alone

supports diminishment. On the contrary, this Court

has found diminishment under prong one of the Solem

18

framework only when the relevant statute provided a

sum-certain payment in exchange for reservation

lands or included language that restores reservation

lands to the public domain. See Yankton, 522 U.S. at

344; Hagen, 510 U.S. at 412; Decoteau, 420 U.S. at

445. Indeed, the only case finding diminishment in

the absence of sum-certain or public-domain language,

see Rosebud, 430 U.S. at 615, did so on the basis of

unequivocal

legislative

history

supporting

diminishment under prong two, see Solem, 465 U.S. at

469 n.10. That is plainly not the case here, as the

panel not only failed to find such unequivocal history,

but disclaimed the need even to look for it.

The decision below thus represents an

unprecedented departure from 100 years of

diminishment jurisprudence, including the many

cases underscoring that the absence of sum-certain

transfers and the presence of the sort of pay-as-you-go

language included in the 1905 Act is indicative of

congressional intent merely to open reservation lands

to settlement, and not a reflection of Congress’ intent

to extinguish tribal sovereignty over long-held sacred

lands secured to the Tribe by prior treaty. It is

therefore no surprise that the decision below has

“create[d] a needless circuit split” with the Eighth

Circuit, which found no diminishment after

scrutinizing materially indistinguishable statutory

text. See Grey Bear, 828 F.2d at 1290.

The Tenth Circuit’s bottom-line conclusion is

deeply flawed. If the Court had not given talismanic

status to the word “cede,” it would have recognized

multiple textual indications that Congress did not

intend to diminish the Reservation. Both the Boysen

19

proviso and the absence of school-land provisions are

inconsistent with a clear intent to diminish. And the

most striking textual feature of the 1905 Act is its

contrast with two earlier acts that plainly diminished

the Wind River Reservation using language—

referencing sums certain, the public domain, or both—

that actually is perfectly suited for diminishment. As

this Court emphasized in Parker, such a “change in

language” is significant. 136 S. Ct. at 1079-80. But

the Tenth Circuit barely mentioned Parker, even

though it closely resembles this case and is this

Court’s last word on diminishment. The decision

below mistakenly strips the Tribes of their sovereign

territory and fully merits this Court’s review.

I.

The Tenth Circuit’s Decision Conflicts With

Precedent From This Court And The Eighth

Circuit.

A. The operative language of the 1905 Act

provides that the Tribes “hereby cede, grant, and

relinquish to the United States, all right, title, and

interest which they may have to all the lands

embraced within said reservation,” except for roughly

800,000 acres in the southwestern part of the

reservation.

App.252.

In return, the federal

government offered no lump-sum payment, but would

serve as “trustee” for the Tribes, sell individual plots

of the land to settlers, and pay the Tribes “the

proceeds received from the sale[s].” App.263. Those

proceeds, if they materialized, would then be

channeled to specific causes, including the creation of

“an irrigation system,” the purchase of “live stock,”

and the development a “school fund.” App.256-57.

The statute underscored that the United States was

20

not guaranteeing that sales would occur or that any

minimum level of proceeds would be transferred.

In the Tenth Circuit’s view, this statutory text

“aligns with the type of language this Court has called

‘precisely suited’ to diminishment.” App.12 (quoting

Yankton, 522 U.S. at 344).

The Tenth Circuit

reasoned that “Congress’s use of the words ‘cede,

grant, and relinquish’ can only indicate … a

diminished reservation.” App.16 (emphasis added).

That attribution of dispositive significance to

language of cession, unaccompanied by sum-certain or

public-domain references, is quite plainly wrong. The

view has no support in this Court’s diminishment

jurisprudence and conflicts with the whole line of this

Court’s cases. This Court has concluded that an Act

of Congress diminished the boundaries of an Indian

reservation only when (1) the statutory text

guaranteed the tribe a sum-certain payment in

exchange for reservation lands; (2) the statutory text

made clear that the reservation lands would be

restored to the public domain; or (3) there is

unequivocal evidence supporting diminishment in the

contemporaneous legislative and historical record.

Indeed, the very case cited by the Tenth Circuit to

support the notion that the 1905 Act is “precisely

suited” to diminishment refutes it. In South Dakota v.

Yankton Sioux, this Court examined a 1904 statute

providing that a tribe would “cede, sell, relinquish,

and convey” certain lands to the United States in

exchange for “a fixed payment of $600,000.” 522 U.S.

at 344. The Court concluded that “[t]his ‘cession’ and

‘sum certain’ language is ‘precisely suited’ to

terminating reservation status” and thus that the

21

Yankton Sioux reservation had been diminished. Id.

(emphasis added). Likewise, in DeCoteau v. District

County Court, the Court examined an 1891 statute

providing that a tribe would “cede, sell, relinquish,

and convey to the United States” certain lands in

exchange for a “sum certain” payment of $2.50 per

acre transferred to the United States. 420 U.S. at 445,

448. The Court explained that the negotiations

preceding the agreement “show plainly that the

Indians were willing to convey to the Government, for

a sum certain, all of their interest in all of their

unallotted lands,” and “[t]he Agreement’s language …

was precisely suited to this purpose.” Id. at 445

(emphasis added).

The Court therefore found

diminishment.

The difference between sum-certain language and

the pay-as-you-go language included in the 1905 Act

is critical, because pay-as-you-go language, even when

accompanied by language like “cede” or “relinquish,”

is “precisely suited” to opening a reservation to

settlement to the extent of later hoped-for sales to

settlers, and is actually ill-suited to a definitive and

immediate termination of reservation lands. Indeed,

a number of this Court’s decisions have made clear

that a conditional promise to transfer proceeds from

whatever land sales may occur is inconsistent with

congressional intent to permanently diminish a

reservation.

Most recently, in Parker, the Court examined an

1882 statute that opened reservation lands for

settlement without guaranteeing payment. As the

Court explained, “rather than the Tribe’s receiving a

fixed sum for all of the disputed lands, the Tribe’s

22

profits were entirely dependent upon how many

nonmembers purchased the appraised tracts of land.”

Parker, 136 S. Ct. at 1079. The Court concluded that

“it is clear that the 1882 Act falls into [the] category of

surplus land Acts … that ‘merely opened reservation

land to settlement and provided that the uncertain

future proceeds of settler purchases should be applied

to the Indians’ benefit.’” Id. The same reasoning

applied in Solem v. Bartlett, Seymour v.

Superintendent, and Mattz v. Arnett, 412 U.S. 481

(1973)—all of which involved statutes containing payas-you-go language, none of which was found to

diminish a reservation. See Solem, 465 U.S. at 473

(the “reference to the sale of Indian lands, coupled

with the creation of Indian accounts for proceeds,

suggests that the [government] was simply being

authorized to act as the Tribe’s sales agent”);

DeCoteau, 420 U.S. at 448 (noting that statutes in

Seymour and Mattz could not support diminishment

because they “merely opened reservation land to

settlement and provided that the uncertain future

proceeds of settler purchases should be applied to the

Indians’ benefit”). Needless to say, none of those cases

ever recognized that “hybrid payment scheme[s]”

would render the absence of sum-certain payments

irrelevant, App.17, for a “hybrid payment scheme,”

after all, is merely a “euphemism” for a “conditional

promise to pay,” App.42 (Lucero, J., dissenting).

To be sure, “cession” language may be suggestive

of diminishment—even “strongly suggest[ive],” Solem,

465 U.S. at 470—but contrary to the Tenth Circuit,

absent sum-certain or public-domain language, this

Court has never deemed such language as a

dispositive indicator of an intent to diminish. For

23

example, in Ash Sheep Co. v. United States—one of

this Court’s earliest precedents interpreting a surplus

land act—the Court concluded that disputed portions

of a reservation remained “Indian lands” and did not

become “public lands” (a holding closely related to nondiminishment) even though the tribe “ceded, granted

and relinquished” title to the United States. 252 U.S.

at 164-66 (emphasis added). Likewise, in Rosebud

Sioux Tribe v. Kneip, the Court examined a 1904

statute providing that a tribe would “cede, surrender,

grant, and convey to the United States” certain

portions of their reservation in exchange for the

proceeds from the sale of opened lands, rather than

receive a sum-certain payment. 430 U.S. at 597.

Although the Court found diminishment in Rosebud,

it did so based on “unequivocal” evidence of

diminishment in the contemporaneous historical

record—not because of clear and plain statutory text.

See Solem 465 U.S. at 469 n.10 (explaining that the

statutory text in Rosebud failed to “clearly sever[] the

Tribe from its interest in the unalloted open lands,”

and noting that Rosebud found diminishment only

because “the circumstances surrounding the passage”

of the statute “unequivocally demonstrated that

Congress meant … to diminish the Rosebud

Reservation”); Big Horn I, 753 P.2d at 117 (affirming

special master’s decision distinguishing Rosebud);

JA752.

In this case, the contemporaneous historical

record does not include unequivocal evidence of

diminishment, and the Tenth Circuit has effectively

conceded as much. See, e.g., App.30 n.14 (noting that

some

legislative

history

“cut[s]

against”

diminishment”).

24

Nor does the 1905 Act restore any reservation

lands to the public domain, which (outside of those

cases involving sum-certain payments) is the only

other instance in which this Court has been willing to

find that statutory text diminished an Indian

reservation. See Hagen, 510 U.S. at 414. As with the

absence of sum-certain language, the failure to

reference the return of lands to the public domain is

not a triviality or a search for magic words. Just as

the sum-certain language indicates a definitive onetime transfer of sovereignty, a reference to “the

restoration of unallotted reservation lands to the

public domain evidences a congressional intent with

respect to those lands inconsistent with the

continuation of reservation status.” Id. But the

language of cession without sum-certain or publicdomain references is far more consistent with opening

up the reservation for settlement, and certainly does

not effect an unambiguous surrender of sovereignty.

And if this Court’s cases make one principle clear, it is

that only Congress may work a diminishment, and

only if it does so clearly.

In short, the Tenth Circuit’s holding turns on its

novel reasoning that cession language, by itself, “can

only indicate … diminishment.” That unprecedented

determination, which infringed the sovereignty of two

Indian tribes, readily warrants this Court’s review.

B. The pressing need for certiorari is only

underscored by the circuit split with the Eighth

Circuit. In United States v. Grey Bear, the Eighth

Circuit examined a statute whose operative statutory

language provided that a tribe would “cede, surrender,

grant, and convey to the United States” certain

25

portions of reservation land in exchange for “the

proceeds derived from the sale of said lands.” 828 F.2d

at 1290. The Eighth Circuit acknowledged that “such

explicit reference to cession suggests that Congress

intended to divest the reservation of its land.” Id.

(emphasis added). But Grey Bear properly treated

this “suggest[ion]” as just that, and did not convert it

into an unequivocal indicator of diminishment.

Instead, the Eighth Circuit observed that the “Act

does not contain an unconditional commitment by

Congress to pay the tribe for the ceded lands,”

because—as in Parker, Solem, Seymour, Mattz, and

this case—“the tribe was guaranteed reimbursement

only for the lands actually disposed of by the

government.”

Id.

The court then found no

diminishment because the “‘cede, surrender, grant,

and convey’ language of the 1904 Act, standing alone,

does not evince a clear congressional intent to

disestablish the” reservation; rather, the pay-as-yougo language suggested an intent merely to open the

reservation to settlement. Id. (emphasis added). The

Eighth Circuit then went on to consider the second

and third Solem factors, ultimately ruling in favor of

the tribe and against diminishment.

In a footnote, the Tenth Circuit attempted to

distinguish Grey Bear on the ground that the

“legislative history of the act was quite limited, and

the subsequent treatment of the area strongly

indicated Congress did not view the act as

disestablishing the reservation.” App.15 n.7. Those

observations apply equally here and fail to distinguish

Grey Bear. Consistent with the need for diminishment

to come from Congress and be clear, to support

diminishment, the legislative history must be

26

“unequivocal.” Parker, 136 S. Ct. at 1079. Here, the

panel majority not only disclaimed a need to search for

unequivocal legislative history, but actually

acknowledged that some legislative history “cut[s]

against” diminishment. App.30 n.14. Subsequent

history, the least probative factor, must be even more

unequivocal, and here, as in Grey Bear, subsequent

history underscores that settlement efforts were

largely unsuccessful and much of the territory at issue

retains its character as Indian land.

In reality, as this Court underscored in Parker,

the statutory text is the “most probative evidence” of

diminishment. Parker, 136 S. Ct. at 1079. And, as the

Tenth Circuit majority acknowledged, the text of the

1905 Act at issue here is materially identical to that

in Grey Bear. App.15 n.7. The difference in result is

explained not by any material difference in legislative

or subsequent history, but by the Tenth Circuit’s

mistaken view that language of cession, featured in

both the 1905 Act and the Grey Bear statute, has

talismanic import. That view is inconsistent with a

whole line of this Court’s cases and is certainly in

conflict with Grey Bear. Given that this Court has

granted certiorari in diminishment cases even in the

absence of a circuit split, the clean and direct split

between the decision below and Grey Bear plainly

merits this Court’s review.

II. The Tenth Circuit’s Conclusion That The

Wind

River

Reservation

Has

Been

Diminished Is Profoundly Wrong.

This Court’s intervention is further warranted

because the result reached below is as wrong as the

methodology applied. Application of this Court’s

27

three-factor

diminishment

framework

readily

demonstrates that Congress did not clearly and

plainly intend to diminish the Wind River

Reservation.

A. The Statutory Text Does Not Evince the

Requisite Clear and Plain Congressional

Intent to Diminish.

The “first and most important step” in

determining diminishment is analysis of the statutory

text. Parker, 136 S. Ct. at 1080. Parker reaffirmed

the primacy of text, not just because the question is

ultimately one of statutory construction, but because

the diminishment context demands clear action by

Congress.

The reservation at issue here was

established by treaty, and only Congress can abrogate

such treaty commitments and only if it does so clearly.

United States v. Celestine, 215 U.S. 278, 290-91 (1909).

Looking for evidence of clear, unequivocal

congressional intent in places other than statutory

text is a dubious enterprise, as Parker reaffirms.

Parker likewise underscores the importance of

differences in statutory language between earlier

statutes that indisputably worked a diminishment

and later, more equivocal, statutes. Parker thus goes

a long way to making clear that the 1905 Act did not

unequivocally diminish the Wind River Reservation,

and yet the Tenth Circuit barely acknowledged its

existence, even though it is this Court’s most recent

word on diminishment.

In Parker, an Indian tribe agreed in 1854 to “cede”

and “forever relinquish all right and title to” certain

lands to the United States in exchange for a fixed

payment of $840,000. 136 S. Ct. at 1076. In 1865, the

28

tribe again agreed to “cede, sell, and convey”

additional land to the United States in exchange for a

sum-certain of $50,000. Id. at 1077. But then

“Congress took a different tack,” empowering the

Secretary of the Interior in 1882 to “open” additional

reservation lands for “settlement” and to sell

individual plots in a “piecemeal” fashion to settlers.

Id. at 1077-79. “So rather than the Tribe’s receiving a

fixed sum for all of the disputed lands, the Tribe’s

profits were entirely dependent upon how many

nonmembers purchased appraised tracts of land.” Id.

This Court held that the 1882 statute did not

diminish the reservation. In reaching that conclusion,

the Court emphasized the “change in language”

between the 1882 statute and two prior statutes that

“terminated the Tribe’s jurisdiction over their land ‘in

unequivocal terms.’” Id. at 1080. As the Court

explained, there are certain “hallmarks” of

diminishment statutes, such as “language ‘providing

for the total surrender of tribal claims in exchange for

a fixed payment’” or “a statutory provision restoring

portions of a reservation to the ‘public domain.’” Id. at

1079. The 1854 and 1865 statutes included such

hallmarks, because in those statutes the tribe “ceded

the lands and relinquished any claims to them in

exchange for a fixed sum.” Id. at 1080. But the 1882

statute “bore none of these hallmarks,” and because

“Congress legislated against the backdrop” of those

prior statutes, the Court refused to infer a

congressional intent to diminish when Congress

deliberately chose to “speak[] in much different

terms.” Id. at 1079-80.

29

That reasoning perfectly fits this case. The 1874

Lander Purchase Act, which all agree diminished the

Reservation, expressly provided for a sum-certain

payment of $25,000 in exchange for tribal agreement

“to change the southern limit of said reservation.”

App.274-75 (emphasis added). Similarly, the 1897

Thermopolis Purchase Act provided that the Tribes

“hereby cede, convey, transfer, relinquish and

surrender, forever and absolutely all their right, title,

and interest of every kind and character in” the cited

territory, in exchange for a sum-certain payment of

$60,000. App.267-68 (emphasis added). And for good

measure, Congress made explicit that the lands

encompassed by the Thermopolis Purchase would

either be “conveyed unto the State of Wyoming” or

declared “public lands of the United States.” App.272.

The 1905 Act, however, “took a different tack.”

Parker, 136 S. Ct. at 1077. The Tribes agreed to “cede,

grant, and relinquish” the disputed lands to the

United States, but only for the United States to “act as

trustee … to dispose of said lands” and pay the Tribes

“the proceeds received from the sale thereof.” The Act

did not employ either sum-certain or public-domain

language.

As in Parker, Congress’ “change in

language” from two prior statutes unequivocally

diminishing the Reservation undercuts any notion

that Congress sought to diminish the Reservation in

the 1905 Act. See App.251 (Interior reaching same

conclusion); App.115-16 (EPA reaching same

conclusion); see also Seymour, 368 U.S. at 355 (finding

no diminishment in 1906 statute after comparing it to

1892 statute that “restor[ed] the North Half of the

reservation to the public domain”).

30

The problems with the Tenth Circuit’s decision

run deeper still, as other textual provisions strongly

suggest that Congress sought to preserve the

boundaries of the Reservation. As EPA, Interior, and

Judge Lucero observed, the 1905 Act expressly

provided that it would not impair the rights of Asmus

Boysen, whose preexisting lease on the Reservation

“terminate[d]”

“in

the

event

of

the

extinguishment … of the Indian title to the lands

covered.” H.R. Rep. No. 58-3700, pt. 2, at 3 (1905).

Congress’ decision to clarify that Boysen’s lease rights

were unimpaired underscores that there was no

“extinguishment” of Indian title.

Similarly, the 1905 Act expressly permitted

members of the Tribes to remain on the opened portion

of the Reservation, as the statute provided that tribal

members who had previously selected allotments on

the opened lands could have those allotments

“confirmed to him or her.” App.253. As this Court

explained in Solem in similar circumstances, “[i]t is

difficult to imagine why Congress would have reserved

lands for such purposes if it did not anticipate that the

opened area would remain part of the reservation.”

465 U.S. at 474; see also Parker, 136 S. Ct. at 1077

(noting ability of tribal members to take allotments in

newly-opened territory).

Finally, it is equally difficult to imagine why

Congress would have excluded a school lands

provision in the 1905 Act when it routinely included

such provisions in statutes diminishing Indian

reservations. See Yankton, 522 U.S. at 349-50;

Rosebud, 430 U.S. at 601. As with many states,

Wyoming’s Enabling Act granted it the right to receive

31

certain lands from the federal government in order to

establish public schools. See 26 Stat. 22, 222-23

(1890). But Wyoming disclaimed all right and title to

Indian lands, Wyo. Const. art. XXI, §26, and thus it

had no need to establish schools in areas under tribal

jurisdiction. The absence of a school lands provision

thus is just one more reason supporting the conclusion

that the 1905 Act “did no more than open the way for

non-Indian settlers to own land on the reservation,”

Seymour, 368 U.S. at 356, without “diminish[ing] the

reservation’s boundaries,” Parker, 136 S. Ct. at 1080.

B. The Legislative History

Support Diminishment.

Does

Not

The negotiations and legislative history

surrounding the statute confirm what the 1905 Act’s

text makes clear: no “unequivocal” evidence supports

diminishment. Id. at 1079. The Tenth Circuit never

suggested otherwise. And with good reason, for it is

impossible to read the historical record and reach the

conclusion that Congress unambiguously intended to

diminish the Wind River Reservation. Indeed, the

federal commission that negotiated with the Tribes in

advance of the 1905 Act consistently described the

proposal as merely “open[ing]” “certain p[or]tions of

[the] reservation” to “settlement,” without affecting

the Reservation’s boundaries. JA510-16. And that

explanation is consistent with how many legislators

described the 1905 Act. See, e.g., JA3689 (“In brief,

the bill provides for the opening to homestead

settlement and sale … of about a million and a quarter

acres in the Wind River Reservation in central

western Wyoming.” (statement of Rep. Mondell));

JA3689 (“[A]n agreement has been made with the

32

Indians on this reservation for its opening and this bill

largely follows that agreement.” (statement of Rep.

Fitzgerald)); JA3692 (“[T]his bill involves the opening

to sale and settlement of a reservation embracing

something like 1,000,000 acres.” (statement of Rep.

Hitchcock)). That is hardly unequivocal evidence

supporting diminishment.

The historical evidence regarding the Boysen and

school lands provisions is equally revealing. As to the

former, the legislative history indicates that the

Boysen provision was a “principal point” of debate

before Congress passed the 1905 Act. App.132. One

member raised a concern that Boysen’s leasehold

would be terminated. The Chairman of the House

Committee on Indian Affairs explained that the

concern was misplaced because “these lands are not

restored to the public domain, but are simply

transferred to the Government of the United States as

trustee for these Indians,” and so the termination

clause in Boysen’s lease “does not apply.” App.133. To

avoid any possible confusion, however, Congress

added the Boysen proviso.

As for the absence of a “school lands provision,”

the original bill introduced in 1904 regarding the

Reservation included a school lands provision. See

JA3678. This provision was struck during the House

debate, thus preventing the state from taking land “on

the reservation.” JA3678. As EPA explained in its

analysis, “[t]hese statements in the legislative history

and the explicit deletion of the school lands

provisions … indicate Congress’ understanding that

the opened area would remain Reservation land.”

App.137.

33

The Tenth Circuit recognized in a footnote that

the legislative history surrounding the “inclusion” of

the Boysen provision and “removal” of the school lands

provision “may cut against … diminishment.” App.30

n.14. That should have ended the prong-two debate,

as that concession shows the lack of unequivocal

history supporting diminishment. See Parker, 136 S.

Ct. at 1079.

The panel nevertheless advanced the novel theory

that the “unratified 1891 agreement with the Tribes

served as a predicate for the 1905 Act,” which

“compel[s] the conclusion” that Congress maintained

an intent to diminish the Reservation for the 14-year

stretch between 1891 and 1905. App.29-31. As

support, the majority relied almost exclusively on

Rosebud. In Rosebud, a tribe agreed in 1901 to

relinquish lands to the United States in exchange for

a sum-certain, but Congress never ratified the

agreement. 430 U.S. at 590. Then, in 1904, Congress

enacted a statute in which the tribe transferred land

to the United States in exchange for proceeds derived

from land sales. Id. at 596-97. Among other things,

the Court thought it highly probative that Congress

included a school lands provision in the 1904 statute,

which demonstrated “congressional intent to

disestablish.” Id. at 600-01. The Court therefore

concluded that the intent to diminish the reservation

was “carried forth” from 1901 to 1904. Id. at 587-92.

There are numerous material distinctions

between Rosebud and this case.

Here, unlike

Rosebud, Congress never ratified the earlier 1891

agreement, and the Tribes never consented to it. And

unlike the ratified agreement in Rosebud, the 1905

34

Act contains no school lands provision. But the biggest

difference is that unlike the three-year gap in

Rosebud, here there was a fourteen-year chasm

between the failed 1891 negotiations and the 1905 Act.

Equally important, in the middle of that fourteen-year

chasm, Congress enacted the Thermopolis Purchase

Act of 1897, which provides a shining example of the

kind of language that results in unambiguous

diminishment. Thus, Rosebud may be instructive

when the only efforts to dispose of reservation land

occur within a few years and culminate in a single

legislative act. But when Congress has enacted

multiple prior statutes addressing a reservation,

including one subsequent to and closer in time to

earlier negotiations, the difference in language in the

enacted text emphasized in Parker is far more

revealing than any supposed similarity in intent

between 1891 negotiators and 1905 legislators.

C. The Subsequent Treatment of the Land

Further

Counsels

Against

Diminishment.

With neither the statutory text nor the legislative

history of the 1905 Act clearly reflecting an intent to

diminish, only the strongest and most “unequivocal

evidence” of subsequent treatment could support

diminishment. Parker, 136 S. Ct. at 1080. No such

evidence exists, as every decisionmaker involved in

these proceedings has concluded that the subsequent

evidence is at best mixed.

Indeed, much of the post-enactment evidence

militates against diminishment. The effort to open up

lands on the reservation for settlement was hardly a

success. Only a small fraction of the lands identified

35

in the 1905 Act were ever sold to non-Indians, and 75

percent of the land remains tribal trust land today.

App.54 (Lucero, J., dissenting); see also Parker, 136 S.

Ct. at 1081 (emphasizing subsequent history

“particularly in the years immediately following the

opening”). Moreover, “several federal agencies” have

exercised jurisdiction over the disputed lands since

1905. App.36. And, following the 1905 Act, Congress

appropriated funds to the Bureau of Indian Affairs for

irrigation and reclamation projects in the opened

areas, which may explain why the Wyoming

delegation wanted the lands to retain their Indian

character. App.151-55. In addition, the Tenth Circuit

has previously referred to the town of Riverton—the

largest township on the disputed lands—as being

“within the boundaries of the Reservation.” App.36.

Remarkably, this Court, too, has previously indicated

that the Reservation includes the lands at issue here.

See United States v. Mazurie, 419 U.S. 544, 546 (1975)

(referring

to

the

“Wind

River

Reservation[’s] … 2,300,000 acres” that “straddle[]

the Wind River”).

*

*

*

It is difficult to overstate the stakes of this case.

Indian tribes are “separate sovereigns pre-existing the

Constitution.” Santa Clara Pueblo v. Martinez, 436

U.S. 49, 56 (1978), and this Court has described the

lands they inhabit as “sacred,” Cherokee Nation, 30

U.S. (5 Pet.) at 48. Accordingly, this Court has

regularly granted review in diminishment disputes

that threaten to strip Indian tribes of sovereign

territory, even in the absence of a circuit split. See

Parker, 136 S. Ct. 1072; Hagen, 510 U.S. 399; Yankton,

36

522 U.S. 329; Solem, 465 U.S. 463; Rosebud, 430 U.S.

584; Decoteau, 420 U.S. 425; Mattz v. Arnett, 412 U.S.

481; Seymour, 368 U.S. 351; Ash Sheep, 252 U.S. 159.

With the clear split between the Eighth and Tenth

Circuit interpreting materially indistinguishable text,

this case is, a fortiori, deserving of plenary review.

Indeed, Wyoming has conceded that “this case is of

exceptional public importance,” Wyo. En Banc Br.1,

and understandably so. The Northern Arapaho and

Eastern Shoshone have lived on the Wind River

Reservation for approximately 150 years, and the

Reservation is their only sovereign home. A divided

Tenth Circuit has just declared that the Reservation

has been reduced to a mere fraction of its historic size

through an Act of Congress that promised and

provided them practically nothing. That mistaken

judgment deserves this Court’s plenary review.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

ANDREW W. BALDWIN

BERTHENIA CROCKER

KELLY A. RUDD

BALDWIN,

CROCKER &

RUDD, P.C.

P.O. Box 1229

Lander, WY 82520

PAUL D. CLEMENT

Counsel of Record

GEORGE W. HICKS, JR.

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Petitioner

February 16, 2018