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

APPENDIX

TABLE OF APPENDICES

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-20130007;

FRL-9904-28-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

ii

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

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________

Nos. 14-9512, 14-9514

________________

STATE OF WYOMING, and WYOMING FARM BUREAU

FEDERATION,

v.

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; E. SCOTT PRUITT, In his official capacity as

Administrator of the United States Environmental

Protection Agency; DOUG BENEVENTO, in his official

capacity as Acting Region 8 Administrator of the

United States Environmental Protection Agency,*

Respondents.

________________

THE NORTHERN ARAPAHO TRIBE; EASTERN SHOSHONE

TRIBE; CITY OF RIVERTON, WYOMING; FREMONT

COUNTY, WYOMING,

Intervenors.

________________

STATE OF IDAHO; STATE OF ALABAMA; STATE OF

COLORADO; STATE OF KANSAS; STATE OF MONTANA;

STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE

OF OKLAHOMA; STATE OF SOUTH DAKOTA; STATE OF

* Pursuant to Fed. R. App. P. 43(c)(2) Doug Benevento is

substituted for Deb Thomas as the Region 8 Administrator of the

United States Environmental Protection Agency.

App-2

UTAH; INDIAN LAW PROFESSORS; RIVERTON MEMORIAL

HOSPITAL, LLC; FEDERAL INDIAN LAW PROFESSORS;

NATIONAL CONGRESS OF AMERICAN INDIANS,

Amici Curiae.

________________

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. EPA-1-R09-2013-007)

________________

Before TYMKOVICH, Chief Judge, KELLY, and

LUCERO, Circuit Judges.

________________

Filed February 22, 2017

________________

TYMKOVICH, Chief Judge.

This case requires us to determine whether

Congress diminished the boundaries of the Wind River

Reservation in Wyoming in 1905. We find that it did.

The Eastern Shoshone and Northern Arapaho

Tribes jointly inhabit the Wind River Reservation. The

State of Wyoming and the Wyoming Farm Bureau

Federation challenge a decision by the Environmental

Protection Agency granting the Tribes’ application for

joint authority to administer certain non-regulatory

programs under the Clean Air Act on the Reservation.

As part of their application for administrative

authority, the Tribes were required to show they

possess jurisdiction over the relevant land. In their

application, the Tribes described the boundaries of the

Wind River Reservation and asserted that most of the

App-3

land within the original 1868 boundaries fell within

their jurisdiction.

Wyoming and others submitted comments to the

EPA arguing the Reservation had been diminished in

1905 by act of Congress, and that some land described

in the application was no longer within tribal

jurisdiction. After review, the EPA determined the

Reservation had not been diminished in 1905 and the

Tribes retained jurisdiction over the land at issue.

Because the EPA decided the Tribes otherwise

satisfied Clean Air Act program requirements, it

granted their application.

Wyoming and the Farm Bureau appealed the

EPA’s

Reservation

boundary

determination.

Regionally applicable final actions of the EPA are

directly appealable to this court. Exercising

jurisdiction under 42 U.S.C. § 7607(b)(1), we grant the

petition for review, vacate the EPA’s boundary

determination, and remand for further proceedings

consistent with this opinion. We find by its 1905

legislation, Congress evinced a clear intent to

diminish the Reservation.

I.

Background

The history of federal Indian policy in the United

States is marked by a series of eras, each

characterized by a different approach to the inevitable

conflict between the Native Americans who inhabited

western America and homesteaders flooding west in

search of a better life. Cohen’s Handbook of Federal

Indian Law 7-8 (Nell Jessup Newton et al. eds., 2012).

The story of the Wind River Reservation begins in the

second half of the nineteenth century, when a new

federal policy of allotment and assimilation began to

App-4

take shape, which followed a period when Indian

reservations were created throughout the western

United States. Unsurprisingly, westward expansion

placed pressures on the traditional lifestyles of the

Native American tribes. Recognizing the potential for

conflicts, particularly over land, the United States

negotiated a series of treaties and agreements with

dozens of tribes, including the Eastern Shoshone.

The Eastern Shoshone are part of the larger

Shoshone Tribe, who in the mid-nineteenth century

inhabited what would become the states of Colorado,

Idaho, Nevada, Utah, and Wyoming. Henry Stamm,

People of the Wind River 9 (1999). In 1863, the United

States and the Eastern Shoshone entered into the

First Treaty of Fort Bridger, 18 Stat. 685 (1863),

which established “Shoshonee County,” an area

encompassing more than forty-four million acres. See

United States v. Shoshone Tribe of Indians of Wind

River Reservation of Wyo., 304 U.S. 111, 113 (1938).

But the treaty proved to be short lived. With the end

of the Civil War, a new wave of settlers forged

westward. Fearing the Eastern Shoshone’s homeland

would be settled and thus lost forever, the tribal

leader, Chief Washakie, urged the United States to

reserve the Wind River Valley—the Tribe’s historic

buffalo hunting grounds—as the Eastern Shoshone’s

permanent homeland.

Chief Washakie’s efforts were successful: in 1868,

the United States and the Eastern Shoshone Tribe

signed the Second Treaty of Fort Bridger, 15 Stat. 673

(1868). This treaty set aside roughly three million

acres for exclusive tribal use. In exchange, the Tribe

relinquished its claim to the land held under the 1863

App-5

treaty. Shoshone, 304 U.S. at 113. As it had promised,

the United States developed the Reservation’s

infrastructure and began to establish and expand

agricultural lands in an effort to aid the Eastern

Shoshone’s transition away from hunting wild game,

which was rapidly disappearing. For their part, the

Eastern Shoshone resolved to settle permanently on

the Reservation, pursue an agrarian lifestyle, and

send their children to school. But land issues

persisted: settlers vied for agricultural lands south of

the Big Wind River, and the Reservation’s

superintendent feared it would be impossible to

observe the boundaries created by the 1868 treaty.

Meanwhile, Congress had departed from its

previous policy of segregating tribes from

homesteaders in favor of a new policy of educating

Native American children in residential boarding

schools and splitting up communal, tribally owned

reservations into individual, privately owned parcels

of land. Judith V. Royster, The Legacy of Allotment, 27

Ariz. St. L.J. 1, 7-9 (1995). At the time, Congress, and

indeed most of America, assumed the reservation

system would eventually cease to exist and members

of Native American tribes would become fully

assimilated into American society. See Solem v.

Bartlett, 465 U.S. 463, 468 (1984); Marta Adams et al.,

American Indian Law Deskbook 93 (2015). Thus,

reservations began to shrink in size. In 1874, the

Eastern Shoshone Tribe sold all of its land south of the

forty-third parallel in the so-called Lander Purchase

in exchange for a payment of $25,000. 18 Stat. 291,

292 (1874). According to the ratifying act, this

transaction “change[d] the southern limit of said

reservation.” 18 Stat. at 292. Around this time, the

App-6

Northern Arapaho—traditionally, an enemy of the

Eastern Shoshone—joined the Eastern Shoshone on

the Wind River Reservation, where they remain today.

1877 Comm’r Indian Aff. Ann. Rep. 19.

The Wind River Reservation boundaries changed

again in 1897, when Congress passed legislation

purchasing additional land. That act, known as the

Thermopolis Purchase, provided that, in exchange for

$60,000, the Tribes agreed to “cede, convey, transfer,

relinquish, and surrender forever and absolutely all

their right, title, and interest of every kind and

character” in a tract around the Big Horn Hot Springs,

located on the northern boundary of the Reservation.

30 Stat. 93, 94 (1897). Following up on failed efforts to

acquire additional land from the Tribes in 1891 and

1893, in 1904 Representative Frank Mondell of

Wyoming introduced a bill initiating the cession of the

land north of the Big Wind River flowing through the

north-central portion of the Reservation. The 1904

legislation was the framework for negotiations with

the Tribes, which the Tribes ultimately agreed to as

amended. Congress passed the 1904 agreement in

1905. 33 Stat. 1016 (1905). It is the 1905 Act that is at

issue in this case.

But the 1905 Act was not the last piece of

legislation affecting the Reservation. In 1934,

Congress enacted the Indian Reorganization Act, the

first step in its new national policy of tribal selfdetermination. See 48 Stat. 984 (1934). Since the

Tribes voted to exclude themselves from this Act,

however, Congress had to pass specific legislation to

carry out its new policies on the Wind River

Reservation. Thus, in 1939, Congress directed the

App-7

Secretary of the Interior to restore to tribal ownership

any unsold lands in the area that had been ceded in

1905. 53 Stat. 1128, 1129 (1939).

That brings us to the present day. Currently,

approximately seventy-five percent of the land

affected by the 1905 Act is held in trust by the United

States for the Tribes and their members. In 2008, the

Tribes applied to the EPA for authority to manage

certain non-regulatory programs for air quality in

areas under tribal jurisdiction. They were able to do so

because in 1990, Congress amended the Clean Air Act,

42 U.S.C. §§ 7401-671 (CAA), to authorize the EPA to

treat Native American tribes as states for the

purposes of the CAA. § 7601(d). Pursuant to this grant

of authority, the EPA promulgated the Tribal

Authority Rule, 40 C.F.R. 49, under which qualified

tribes may apply for authority to implement and

manage programs for air quality in areas under tribal

jurisdiction. 42 U.S.C. § 7601(d)(2)(B).

A successful application must describe the area

over which a tribe seeks to assert its regulatory

authority. Thus, in their application, the Tribes had to

specify the proposed scope of their regulatory

jurisdiction, which required them to clearly delineate

the boundaries of the Reservation. The Tribes claimed

the boundaries of the Wind River Reservation were

those set forth in the 1868 treaty, reduced only by the

Lander and Thermopolis transactions. As required by

the CAA, the EPA notified all governmental entities

located contiguous to the Reservation and provided

local government and the general public notice and an

opportunity to comment on the proposed boundary

description. When a treatment-as-a-state application

App-8

is subject to an objection, EPA may also request

additional information or consult with the

Department of the Interior. 40 C.F.R. § 49.9(d).

In their comments, Wyoming and the Farm

Bureau argued the Reservation was diminished by the

1905 Act, which, they contended, established the

current boundaries of the Reservation. Based on these

objections, the EPA asked the Department of the

Interior for an analysis of the competing claims. In

2011, the solicitor issued a legal opinion concluding

the 1905 Act had not changed the boundaries

established by the 1868 treaty. Relying on this

analysis, the EPA issued its final decision granting the

Tribes’ application. The decision agreed with the

Tribes’ interpretation that the 1905 Act did not

diminish the boundaries of the Reservation.

II. Analysis

Our task here is limited: we must determine

whether Congress diminished the Wind River

Reservation in 1905 by legislative act.** As we have

** We must also address two jurisdictional issues:

(1) In response to the court’s November 17, 2015 order for

supplemental briefing regarding a mootness issue raised during

oral argument, we have reviewed the parties’ and intervenors’

supplemental briefs and find this case is not moot. Mootness is a

threshold requirement: without the existence of a live case or

controversy, we cannot constitutionally exercise jurisdiction over

a claim. Rio Grande Silvery Minnow v. Bureau of Reclamation,

601 F.3d 1096, 1110 (10th Cir. 2010). For a live controversy to

exist, a present determination of the issues must have “some

effect in the real world,” and the parties must retain a concrete

interest in the outcome of the litigation. Id. at 1109-10. Here,

even though the EPA has revoked the Tribes’ funding under the

CAA, the EPA’s determination of the Reservation boundaries still

App-9

previously explained, only Congress has the power to

diminish reservation boundaries, and its intent “must

be clearly expressed.” Osage Nation v. Irby, 597 F.3d

1117, 1121-22 (10th Cir. 2010). Even further,

diminishment “will not be lightly inferred.” Solem v.

Bartlett, 465 U.S. 463, 470 (1984). Nevertheless, we

may not “‘ignore plain language that, viewed in

historical context and given a fair appraisal clearly

runs counter to a tribe’s later claims.’” Osage Nation,

597 F.3d at 1122 (quoting Pittsburg & Midway Coal

Mining Co. v. Yazzie, 909 F.2d 1387, 1393 (10th Cir.

1990)).

stands, and the EPA has not indicated it will reconsider its

decision. Because the boundary determination affects the present

and future rights and responsibilities of the parties, the case is

not moot.

(2) We also find the Wyoming Farm Bureau has standing to sue

on behalf of its members. For an organization to bring suit in its

representative capacity, it must show, among other things, that

“its members would otherwise have standing to sue in their own

right.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333,

343 (1977). Standing requires a concrete and particularized

injury that is traceable to the defendant’s conduct and

redressable by a favorable court decision. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). In this case, some Farm

Bureau members own farms within the disputed area and face

the costs of complying with a new regulatory regime following the

EPA’s decision. We have previously recognized precisely this type

of injury as sufficiently concrete and particularized. See Hydro

Res., Inc. v. EPA, 608 F.3d 1131, 1144 (10th Cir. 2010). And since

the alleged injuries are clearly traceable to the EPA’s decision

and would be redressed by a reversal of that decision, Farm

Bureau members have standing to sue in their own right.

Therefore, we find the Farm Bureau has standing to sue on

behalf of its members.

App-10

The Supreme Court has declined to infer a

congressional purpose of diminishment from the

passage of every surplus land act during the allotment

and assimilation period. “Rather, it is settled law that

some surplus land acts diminished reservations, and

other surplus land acts did not.” Solem, 465 U.S. at

469 (citations omitted). “The effect of any given

surplus land Act depends on the language of the Act

and the circumstances underlying its passage.” Id. To

determine whether the 1905 Act had the effect of

diminishing the Reservation, we look to the wellsettled approach described in Solem, where the Court

outlined a hierarchical, three-step framework to

ascertain congressional intent.

First, we look to the text of the statute, because it

is “[t]he most probative evidence of congressional

intent.” Id. at 470; see also Nebraska v. Parker, 136 S.

Ct. 1072, 1079 (2016) (“[W]e start with the statutory

text, for ‘[t]he most probative evidence of

diminishment is, of course, the statutory language

used to open Indian lands.’” (citation omitted) (second

alteration in original)).

Second,

we

examine

the

circumstances

surrounding the passage of the act, “particularly the

manner in which the transaction was negotiated with

the tribes involved and the tenor of legislative reports

presented to Congress.” Solem, 465 U.S. at 471; see

also Parker, 136 S. Ct. at 1079; South Dakota v.

Yankton Sioux Tribe, 522 U.S. 329, 351-52 (1998).

Third and finally, “to a lesser extent,” we look to

“the subsequent treatment of the area in question and

the pattern of settlement there.” Id. at 344; Solem, 465

U.S. at 471-72.

App-11

In doing so, we afford no deference to the EPA’s

boundary determination. As our precedents tell us,

“‘the Supreme Court has applied, without comment, a

de novo standard of review in determining

congressional intent [regarding reservation boundary

diminishment].’” Osage Nation, 597 F.3d at 1122

(alteration in original) (quoting Yazzie, 909 F.2d at

1393). Although examination of the historical record

“involves a mixed question of law and fact,” de novo

review is appropriate “[w]here a mixed question

‘primarily involves the consideration of legal

principles.’” Id. at 1393-94 (quoting Supre v. Ricketts,

792 F.2d 958, 961 (10th Cir. 1986)). The EPA does not

dispute this standard of review, because it concedes a

de novo standard is “consistent with the

[Administrative Procedure Act’s] ‘otherwise not in

accordance with the law’ standard,” Aple. EPA Br. 23,

which we apply to the agency action here.

A. The Text of the 1905 Act

We begin our analysis with the 1905 Act’s

operative language, for “[s]tatutory language is the

most probative evidence of congressional intent to

disestablish or diminish a reservation.” Osage Nation,

597 F.3d at 1122-23. “‘Explicit reference to cession or

other language evidencing the present and total

surrender of all tribal interests strongly suggests that

Congress meant to divest from the reservation all

unallotted opened lands.’” Id. at 1123 (quoting Solem,

465 U.S. at 470). There are no magic words of cession

required to find diminishment. Rather, the statutory

language, whatever it may be, must “establis[h] an

express congressional purpose to diminish.” Hagen v.

Utah, 510 U.S. 399, 411 (1994).

App-12

Here, Article I of the 1905 Act reads,

The said Indians belonging on the Shoshone

or Wind River Reservation, Wyoming, for the

consideration hereinafter named, do 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 the lands within and

bounded by the following lines . . . .

33 Stat. at 1016 (emphasis added). This language of

cession aligns with the type of language the Supreme

Court has called “precisely suited” to diminishment.

Yankton Sioux, 522 U.S. at 344. Indeed, it is nearly

identical to the statutory language in cases where the

Supreme Court has found a congressional purpose to

diminish a reservation in the statute’s text.

For example, in DeCoteau v. District County Court

for the Tenth Judicial District, the Court considered

an act providing that the Sisseton-Wahpeton Tribe

agreed to “cede, sell, relinquish, and convey to the

United States all their claim, right, title, and interest

in and to all the unallotted lands within the limits of

the reservation.” 420 U.S. 425, 445 (1975). The Court

found this language was precisely suited to a

congressional purpose of terminating the Lake

Traverse Indian Reservation. Id. Similarly, in

Rosebud Sioux Tribe v. Kneip, the Court held Congress

clearly evinced an intent to diminish the boundaries of

the Rosebud Sioux Reservation when it passed a series

of acts affecting unallotted lands on that reservation.

430 U.S. 584, 615 (1977). The first act, passed in 1904,

provided that the Rosebud Sioux Tribe agreed to “cede,

surrender, grant, and convey to the United States all

App-13

their claim, right, title, and interest in and to” the

unallotted portion of its reservation. Id. at 597. This

too, the Court held, was language precisely suited to

diminishment. Id.***

Two decades later, in Hagen, the Court found

Congress evinced a clear intent to diminish a

reservation even when it employed less express

language of cession. The operative language of the

statute at issue provided that “all the unallotted lands

within said reservation shall be restored to the public

domain.” 510 U.S. at 412. The Court held this

language

evidenced

a

congressional

intent

“inconsistent with the continuation of reservation

status.” Id. at 414.**** And in Yankton Sioux, the Court

unanimously held Congress spoke with a clear

purpose of diminishment when it passed an act

providing that the Yankton Sioux Tribe would “cede,

sell, relinquish, and convey to the United States all

their claim, right, title, and interest in and to all the

Although the 1907 and 1910 Acts in Rosebud merely

authorized the Secretary of the Interior “to sell or dispose of” the

unallotted portions, the court found a “continuity of intent” from

the earlier 1904 Act and a 1901 agreement, based on the

circumstances surrounding the passage of the later acts. Id. at

606-13.

***

**** Citing to Hagen, the EPA argues that when the operative

language does not restore ceded lands to the public domain,

diminishment is less likely. We disagree. While the Court in

Hagen found language restoring lands to the public domain

probative of congressional intent to diminish a reservation,

nowhere did it suggest the absence of public domain language

cuts against diminishment— especially where, as here, the

statute’s operative language includes even stronger language of

cession than in Hagen.

App-14

unallotted lands within the limits of the reservation.”

522 U.S. at 344, 351.

In contrast, in cases where the Court has found a

lack of clear congressional intent to diminish, the

operative language of the statutes merely opened a

reservation to settlement by non-Indians or

authorized the Secretary of the Interior to act as a

“sales agent” for the Native American tribes. For

example, in Seymour v. Superintendent of Wash. State

Penitentiary, the Court concluded that an act

providing “for the sale of mineral lands and for the

settlement and entry under the homestead laws of

surplus lands remaining on the diminished Colville

Reservation after allotments were first made . . . did

no more than open the way for non-Indian settlers to

own land on the reservation.”***** 368 U.S. 351, 354-56

(1962). Similarly, in Mattz v. Arnett, the Court held an

act providing that lands within a reservation were

“subject to settlement, entry, and purchase” did not,

on its own, “recite or even suggest that Congress

intended thereby to terminate the Klamath River

Reservation.” 412 U.S. 481, 495-97 (1973).

The operative language in Solem itself was

similar: the act merely “authorized and directed” the

Secretary of the Interior “to sell and dispose of all that

portion of the Cheyenne River and Standing Rock

***** The Tenth Circuit distinguished Seymour in Ellis v. Page,

stating, “It is one thing to open an Indian Reservation to mineral

exploitation, allotment to Indians, and non-Indian homesteaders

by Congressional enactment as in Seymour. It is quite another to

agree by treaty to cede and relinquish all claim, title and interest

in the lands within the limits of a reservation.” 351 F.2d 250, 252

(10th Cir. 1965)

App-15

Indian reservations” within the described boundaries.

465 U.S. at 472-73. The Court compared the language

to the acts in Rosebud and DeCoteau and concluded

that unlike in those cases, “the Secretary of the

Interior was simply being authorized to act as the

Tribe’s sales agent.” Id. at 473. The Court added,

“Nowhere else in the Act is there specific reference to

the cession of Indian interests in the opened lands or

any change in existing reservation boundaries.” Id. at

474.****** Likewise, just last year in Parker, the Court

held that an act stating the disputed lands would be

“‘open for settlement under such rules and regulations

as [the Secretary of the Interior] may prescribe,’” 136

S. Ct. at 1079 (alteration in original) (quoting 22 Stat.

341 (1882)), fell into the category of acts that “‘merely

opened reservation land to settlement,’” id. (quoting

DeCoteau, 420 U.S. at 448).*******

The Court in Solem did acknowledge that language of

diminishment present elsewhere in the act undisputedly

supported the view that the reservation had been diminished.

465 U.S. at 474-75. Without express language of cession,

however, isolated references to diminishment alone could not

“carry the burden of establishing an express congressional

purpose to diminish.” Id. at 475. Here, in contrast, in addition to

the express language of cession in Article I, Articles I, III, IV, VI,

and IX of the 1905 Act refer to the diminished reservation. 33

Stat. at 1016, 1017, 1018, 1020, 1022.

******

******* The EPA points to a circuit case, United States v. Grey

Bear, which it argues falls outside this framework. 828 F.2d 1286

(8th Cir. 1987). That case involved an interpretation of cession

language for the Devils Lake Indian Reservation that is similar

to Rosebud, DeCoteau, and here, but unlike these cases, 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. Id. at 129091. Thus although step one of the Solem analysis pointed to

App-16

Plainly, the 1905 Act falls into the first line of

cases: those with express language of cession.

Nevertheless, the EPA and the Tribes argue that

Congress’s intent remains unclear, because of the

absence of words such as “sell” or “convey” that were

present in other statutes during the period. But our

task is not to divine why Congress may have chosen

certain synonyms over others in this particular Act.

We believe Congress’s use of the words “cede, grant,

and relinquish” can only indicate one thing—a

diminished reservation. A review of several

dictionaries from the turn of the twentieth century

confirms that adding the words “sell” or “convey”

would not materially change the intent Congress

evinced in the 1905 Act.******** And in any event,

Article II of the 1905 Act includes the word “conveyed”:

diminishment, steps two and three made it clear that was not

Congress’s intent.

******** The absence of the words “convey” or “sell” in Article I

tells us little about Congress’s intent, since the contemporaneous

definitions of “cede,” “grant,” and “relinquish” were virtually

indistinguishable from the definitions of “convey” and “sell.” For

example, at the time, “cede” was defined as “[t]o yield or

surrender, give up.” Webster’s Commonsense Dictionary 76 (J.T.

Thompson ed., 1902). Likewise, “grant” was defined as “[t]o allow,

yield, concede; to bestow or confer, in answer to prayer or request;

to make conveyance of, give the possession or title of.” Webster’s

Practical Dictionary 165-66 (1906). And “relinquish” was defined

as “[t]o give up the possession or occupancy of; to quit; to forsake;

to abandon; to give up; to resign,” Webster’s Commonsense

Dictionary 405, or “[t]o withdraw from, leave behind; to give up,

renounce a claim to, resign, quit, forsake, abandon, forego,”

Webster’s Practical Dictionary 342.

By way of comparison, “convey” was defined as “to transfer to

another, make over,” id. 81, and “[t]o carry; to remove; to

App-17

In consideration of the lands ceded, granted,

relinquished, and conveyed by Article I of this

agreement, the United States stipulates and

agrees to dispose of the same, as hereinafter

provided . . . .

33 Stat. at 1019-20 (emphasis added).*********

The EPA and the Tribes also argue the lack of

unconditional payment of a sum certain in the 1905

act indicates Congress did not intend to diminish the

Reservation. The 1905 Act does not provide for a

single, lump-sum payment, but rather outlines a

hybrid payment scheme, under which different

amounts derived from the proceeds of sales of the

ceded lands are allocated to specific funds. For

transmit,” Webster’s Commonsense Dictionary 105. “Sell” was

defined as “[t]o give or deliver in exchange for some equivalent;

to exchange for money,” id. 438, and “[t]o transfer to another for

an equivalent; to dispose of in return for something, esp. for

money,” Webster’s Practical Dictionary 361. It is true the word

“sell” could add the notion of an exchange for money, but the

Supreme Court has found a statute’s operative language to be

“precisely suited” to diminishment without the presence of the

word “sell.” See Rosebud, 430 U.S. at 597.

It is worth noting the Wyoming Supreme Court,

applying Solem, held the operative language of the 1905 Act

evinced Congress’s clear intent to diminish the Reservation.

Yellowbear v. State, 174 P.3d 1270, 1282 (Wyo. 2008).

Specifically, the court concluded the language of cession in Article

I was “indistinguishable from the language of DeCoteau.” Id. And

upon review of Yellowbear’s federal habeas petition, we

concluded Yellowbear failed to present any argument “calling

into question the correctness of [the Wyoming Supreme Court’s]

decision.” Yellowbear v. Atty. Gen. of Wyo., 380 F. App’x 740, 743

(10th Cir. 2010), cert. denied sub nom., Yellowbear v. Salzburg,

562 U.S. 1228 (2011).

*********

App-18

example, the Act provides $150,000 for “the

construction and extension of an irrigation system

within the diminished reservation,” $50,000 for a

school fund, and $50,000 for the purchase of livestock.

33 Stat. 1017-18. The Act also creates a general

welfare and improvement fund and appropriates

$85,000 for per capita payments of $50 each. 33 Stat.

1018, 1020-21. As we explain in more detail below, it

was thought this hybrid payment scheme would yield

more revenue to the tribes, since they would be paid

from the proceeds collected from the homesteaders.

In arguing this payment scheme is fatal to a

finding of diminishment, the EPA and the Tribes rely

on Solem. There the Court held language of cession

combined with a sum certain payment creates “an

almost insurmountable presumption that Congress

meant for the tribe’s reservation to be diminished.”

465 U.S. at 470-71. But this presumption is not a twoway street. In Hagen, the Court expressly rejected the

argument that a finding of diminishment requires

“both explicit language of cession or other language

evidencing the surrender of tribal interests and an

unconditional commitment from Congress to

compensate the Indians.” 510 U.S. at 411 (emphasis

added). The Court explained, “While the provision for

definite payment can certainly provide additional

evidence of diminishment, the lack of such a provision

does not lead to the contrary conclusion.” Id. at 412.

The Court continued, “In fact, the statutes at issue in

Rosebud, which we held to have effected a

diminishment, did not provide for the payment of a

sum certain to the Indians.” Id. And indeed, in

Rosebud, the Court noted a sum certain payment or

lack thereof is only one of many textual indicators of

App-19

congressional intent. 430 U.S. at 598 n.20. Congress’s

decision to abandon the sum certain method of

payment was “not conclusive with respect to

congressional intent.”********** Id. at 588. What matters

most is not the mechanism of payment, but rather the

“language of immediate cession.” Id. at 597.

Finally, the EPA and the Tribes argue the

trusteeship language in the 1905 Act demonstrates

that Congress merely meant for the United States to

hold the land in trust for the Tribes until it was sold.

The EPA and the Tribes thus believe the Act effected

no change in ownership until parcels were sold to

settlers. They point to Article IX of the Act, which

provides,

[N]othing in this agreement contained shall

in any manner bind the United States to

purchase any portion of the lands herein

described or to dispose of said lands except as

provided herein, or to guarantee to find

purchasers for said lands or any portion

thereof, it being the understanding that

********** The Court in Rosebud added that the act at issue was

not completely devoid of a guaranteed payment. The Court

observed, “[d]espite this ‘uncertain sum’ proviso,” the act

mandated that “all lands herein ceded and opened to settlement

. . . remaining undisposed of at the expiration of four years from

the taking effect of this Act, shall be sold and disposed of for cash

. . . .” Rosebud, 430 U.S. at 596 n.18 (citation omitted). In the

Court’s words, such arrangement “suggests that Congress viewed

this land as disestablished immediately.” Id. Similarly, here, the

1905 Act requires “[t]hat any lands remaining unsold eight years

after the said lands shall have been opened for entry may be sold

to the highest bidder for cash without regard to the above

minimum limit of price.” 33 Stat. at 1021.

App-20

United States shall act as trustee for said

Indians to dispose of said lands and to expend

for said Indians and pay over to them the

proceeds received from the sale thereof only

as received, as herein provided.

33 Stat. at 1020-21. In support of this argument, the

EPA relies on similar language the Court considered

in Ash Sheep Co. v. United States, 252 U.S. 159 (1920).

There the Court held that the Crow Tribe retained a

beneficial interest in ceded lands that precluded them

from becoming “public lands.” Id. at 166. But the

Court has since explained that the question

considered in Ash Sheep—whether lands became

“public

lands”—is

“logically

separate”

from

diminishment. See Rosebud, 430 U.S. at 601 n.24.

Accordingly, Ash Sheep is seldom mentioned in

subsequent cases.

In any event, the Court has made clear that

trust status is not incongruous with congressional

intent to diminish a reservation. In Rosebud, for

example, the Court considered a series of statutes in

which the United States did not promise to find

purchasers for the lands, but rather agreed to act as

trustee for the Indians to dispose of the lands and

collect and distribute the proceeds. 430 U.S. at 596,

608. The Court held congressional intent was to

diminish the Rosebud Reservation, notwithstanding

the trusteeship provisions. See id. 430 U.S. at 615. The

Court agreed with the Eighth Circuit that “‘the fact

that a beneficial interest is retained does not erode the

scope and effect of the cession made, or preserve to the

reservation its original size, shape, and boundaries.’”

Id. at 601 n.24 (quoting Rosebud Sioux Tribe v. Kneip,

App-21

521 F.2d 87, 102 (8th Cir. 1975)). Even the dissent

acknowledged, “[o]f course, it is possible that Congress

intended to remove the opened counties from the

Reservation while leaving the Indians with a host of

rights in the counties.” Rosebud, 430 U.S. at 622.

In sum, the express language of cession in the

Act’s operative text, taken together with the Act’s

other references to diminishment, strongly suggests

that Congress intended to diminish the boundaries of

the Wind River Reservation. The lack of a sum certain

payment and the inclusion of a trusteeship provision

do not compel a different conclusion.

B. The Historical Context of the Act

The contemporary historical context further

confirms Congress intended to diminish the Wind

River Reservation when it passed the 1905 Act.

Although we believe the statutory language points

strongly towards diminishment, we also consider “the

manner in which the transaction was negotiated with

the tribes involved and the tenor of legislative reports

presented to Congress.” Solem, 465 U.S. at 471; see

also Yankton Sioux, 522 U.S. at 351. As the Supreme

Court has stated, “[e]ven in the absence of a clear

expression of congressional purpose in the text of a

surplus land Act, unequivocal evidence derived from

the surrounding circumstances may support the

conclusion that a reservation has been diminished.”

Id. Of course, here we need not search for unequivocal

evidence, for the statute contains express language of

cession. But our scrutiny of the circumstances

surrounding the 1905 Act confirms that Congress

intended to diminish the Reservation’s boundaries.

App-22

The legislative history and the negotiations

leading up to the 1905 Act reveal Congress’s

longstanding desire to sever from the Wind River

Reservation the area north of the Big Wind River. As

in Rosebud, “[a]n examination of the legislative

processes which resulted in the 190[5] Act convinces

us . . . that this purpose was carried forth and

enacted.” 430 U.S. at 592. “Because of the history of

the . . . Agreement, the 190[5] Act cannot, and should

not, be read as if it were the first time Congress had

addressed itself to the diminution of the [Wind River]

Reservation.” See id.

In 1891, Congress drafted a bill that, had it

passed, would have changed the Reservation’s

boundaries to exclude the land north of the Big Wind

River. Under the 1891 agreement, the Tribes were 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, and the water rights appertaining thereunto” in

exchange for the sum of $600,000. H.R. Exec. Doc. No.

52-70, at 29, 30 (1892). Though Congress did not ratify

this agreement, two years later the Secretary of the

Interior sent another commission to negotiate with the

Tribes for the sale of the land north of the Big Wind

River. This time, the United States asked for

additional land and offered the Tribes $750,000. H.R.

Exec. Doc. No. 53-51, at 4 (1894). Despite the higher

offer, the Tribes refused three different proposals, and

no agreement was reached.***********

*********** Congress did successfully obtain the land around the

Big Horn Hot Springs through the Thermopolis purchase in 1897.

30 Stat. at 94.

App-23

Congressional activity resumed in 1904, when

Representative Frank Mondell of Wyoming introduced

a bill to further reduce the Wind River Reservation.

The 1904 Mondell Bill was based on the 1891 and 1893

proposals. But by 1904, the Supreme Court had

declared that Congress had plenary authority over

relations with Native Americans, so Congress no

longer needed tribal approval to change reservation

boundaries. See Lone Wolf v. Hitchcock, 187 U.S. 553,

565 (1903). As Representative Thomas Frank

Marshall, the Chairman of the Committee on Indian

Affairs wrote, the 1904 Bill “propose[d] to reduce the

reservation, as suggested . . . at the time of the making

of the agreement of 1891 . . . .” H.R. Rep. No. 58-2355,

at 3 (1904).

The Mondell Bill, however, differed from the 1891

agreement in several respects. One amendment—and

one the EPA and the Tribes point to—was the

elimination of the $600,000 sum certain payment. To

that, Representative Marshall explained, “[The

Mondell Bill] follows as closely as possible, under the

changed conditions and the present policy of Congress

relative to payments for lands purchased from

Indians, the agreement of 1891 and the bill prepared

at the time for carrying out the provisions of that

agreement.” H.R. Rep. No. 58-2355, at 4 (emphasis

added). “[The bill] follows the now established rule of

the House of paying to the Indians the sums received

from the ceded territory under the provisions of the

bill.” H.R. Rep. No. 58-2355, at 2; see also H.R. Rep.

No. 58-2355, at 8 (quoting letter from then-Acting

Commissioner to the Secretary of the Interior A. C.

Tonner explaining structure of payment framework).

Thus, to comply with prevailing policy, the sum

App-24

certain payment was excised and replaced with a

framework whereby lands would be sold at different

times and at different prices with the proceeds to be

transferred to the Tribes. And, incidentally, Congress

believed that the Tribes could realize greater

compensation under such a framework. H.R. Rep. No.

58-2355, at 4 (observing “[t]he amount which the

Indians would receive at $1 an acre would be

$1,480,000”). Such a payment scheme was the

prevailing congressional policy at the time. As the

Supreme Court has explained, Congress adopted “‘a

new policy in acquiring lands from the Indians [by]

provid[ing] that the lands shall be disposed of to

settlers . . ., and to be paid for by the settlers, and the

money to be paid to the Indians only as it is received .

. . from the settlers.’” Rosebud, 430 U.S. at 592

(footnote omitted) (alterations in original).

Given these congressional directives, in April

1904, Indian Inspector James McLaughlin met with

the Tribes and presented the terms of the Mondell Bill

in a series of meetings on the Wind River

Reservation.************ McLaughlin opened by stating,

My friends, I am sent here at this time by the

Secretary of the Interior to present to you a

proposition for the opening of certain

McLaughlin, who had also negotiated the 1897

Thermopolis Purchase, negotiated many land agreements with

Native American tribes, including the Lower Brules, the Otoes,

the Missourias, the Klamaths, the Modocs, the Yankton, the

Sioux, the Red Lake Chippewas, the Mille Lacs Chippewas, the

Pah-Utes, and the Standing Rock Sioux. James McLaughlin, My

Friend the Indian 295 (1910). The Supreme Court has reviewed

agreements he negotiated that resulted in diminishment in a

number of cases, including Rosebud and Hagen.

************

App-25

p[or]tions of your reservation for settlement

by the whites. It is believed that it will be to

the best interests of your two tribes to cede to

the United States the portions referred to.

Minutes of Council between James McLaughlin, U.S.

Indian Inspector, and the Indians of the Eastern

Shoshone and Arapaho Tribes, at 2 (Apr. 19-21, 1904)

(emphasis added) (reproduced in JA 509-36) [Council

Minutes]. But McLaughlin explained that since his

last agreement with the Tribes, Congress’s policy for

paying for ceded land had changed: “For several years

past there has been a sentiment in Congress . . .

opposed to paying the Indians a lump sum

consideration for their lands. Instead of stipulating, or

providing in the agreement, a lump sum consideration

for any tract of land, they have determined upon

giving the Indians the full benefit of the land by

paying the Indians from the proceeds of the sale of the

land as whitemen settle upon it.” Council Minutes, at

3. McLaughlin explained to the Tribes that they would

“receive more in the aggregate than under the old

lump sum agreements.” Council Minutes, at 4.

McLaughlin

advised

the

Tribes

during

negotiations that the boundaries of the Reservation

would change as a result of the Act, just as they would

have under the agreement in 1891 and the

negotiations in 1893. He stated,

I now wish to talk of the boundaries of the

reservation and the residue of land that will

remain in your diminished reservation. That

being a very important matter. . . . The tract

to be ceded to the United States, as proposed

by the “Mondell Bill,” is estimated at

App-26

1,480,000 acres, leaving 800,500 acres in the

diminished reservation.

Council Minutes, at 6 (emphasis added).*************

McLaughlin informed the Tribes that “a large

reservation is not in your interest,” while the

reduction would be, and that Congress could now

unilaterally change the boundaries of the Reservation

if the Tribes did not agree. Council Minutes, at 7.

Explaining the purpose of the Mondell Bill,

McLaughlin told the Tribes that this agreement would

allow the Tribes to “dispos[e] of the lands that you do

not need” and that they would “realiz[e] money from

the sale of that land, which will provide you with

means to make yourselves comfortable upon your

reservation . . . .” Council Minutes, at 3. He also

************* We

acknowledge the Supreme Court

stated in Solem that a “few scattered phrases”

describing agreements as “reducing the reservation,”

or “the reservation as diminished,” do not indicate a

clear congressional purpose to diminish the

boundaries of a reservation. 465 U.S. at 478; see also

id. at 475 n.17 (reasoning “‘diminished’ was not yet a

term of art in Indian law”). For as the Court observed,

“[I]t is unclear whether Congress was alluding to the

reduction in Indian-owned lands that would occur

once some of the opened lands were sold to settlers or

to the reduction that a complete cession of tribal

interests in the opened area would precipitate.” Id.

(citation omitted). But here we are not limited to a few

ambiguous phrases; rather, we are presented with a

more complete set of circumstances similar to those

the Supreme Court credited in Rosebud.

App-27

referred to the ceded lands as “the public domain” and

made clear the land on the north side of the Big Wind

River (part of the ceded territory), after the

agreement, would be different:

Those of you who have allotments on the

north side of the river, if you so desire, can

have them cancelled and come within the

diminished reservation. * * * However, any of

you who retain your allotments on the other

side of the river can do so, and you will have

the same rights as the whiteman, and can

hold your lands or dispose of them, as you see

fit. On the reservation, you will be protected

by the laws that govern reservations in all

your rights and privileges.

Furthermore, all of you who may retain your

allotments off the reservation, will not lose

any of your rights on the reservation, and you

have rights the same as if you remained

within the diminished reservation. You will

have rights to surplus lands, the timber etc,

although your home may be on the public

domain.

Council Minutes, at 14 (emphasis added).

The tenor of the Tribes’ understanding of the

agreement reflects that the Reservation’s boundaries

would be diminished. One representative for the

Eastern Shoshone told McLaughlin that his Tribe

understood it was “parting with [its lands] forever and

[could] never recover [them] again.” Council Minutes,

at 17. Long Bear, a chief of the Arapaho Tribe,

proclaimed, “I understand what he comes for . . . and I

will tell what part of the Reservation I want to

App-28

sell. . . . I want to cede that portion of the reservation

from the mouth of the Dry Muddy Gulch in a direct

line to the mouth of Dry or Beaver Creek below

Stagner’s on Wind River.” Council Minutes, at 9. Rev.

Sherman Coolidge of the Arapaho added he was glad

McLaughlin had come “to purchase a portion of our

reservation. The proposed ceded portion has not been

used except for grazing. . . . We need the money that

we will get from the sale of these lands for

improvements on the unceded portion.” Council

Minutes, at 12.

The Tribes and McLaughlin entered into an

agreement, see Council Minutes, at 27, and

McLaughlin reported the progress back to

Washington. Specifically, he wrote,

The diminished reservation leaves the

Indians the most desirable and valuable

portion of the Wind River Reservation and

the garden spot of that section of the country.

It is bounded on the north by the Big Wind

River, on the east and southeast by the Big

Popo-Agie River, which, being never failing

streams carrying a considerable volume of

water, give natural boundaries with welldefined lines; and the diminished reservation,

approximately 808,500 acres . . . allows 490

acres for each of the 1,650 Indians now

belonging to the reservation. I have given this

question a great deal of thought and

considered every phase of it very carefully

and became convinced that the reservation

boundary, as stipulated in the agreement, was

ample for the needs of the Indians . . . .

App-29

H.R. Rep. No. 58-3700, at 17 (1905) (emphasis added).

But the 1904 Mondell Bill as negotiated with the

Tribes was never approved. Instead, it was amended

and codified as a new bill (the 1905 Act), which was

approved by Congress on March 3, 1905. The

legislative history reveals almost no debate about the

cession and payment provisions of the 1905 Act; as

discussed, most of the debate had occurred in the

drafting of the 1904 Act. According to the House

Report on the issue, the 1905 Act was “in harmony”

with the Mondell Bill, with “the principal

changes . . . in form rather than substance.” H.R. Rep.

No. 58-3700, at 6.

We believe the circumstances surrounding the

1905 Act most closely resemble those in Rosebud. In

1901, McLaughlin was dispatched to negotiate with

the Indians on the Rosebud Reservation to cede

unalloted portions of their reservation. Rosebud, 430

U.S. at 590. They agreed to cede 416,000 acres for a

sum of $1,040,000, but the agreement was not ratified

because it “‘provided that the Government should pay

for the lands outright.’” Id. at 591 (citation omitted).

The Supreme Court observed it was “undisputed” that

had the agreement been ratified, it would have

changed the reservation’s boundaries. Id. Working

from that baseline, the Court concluded, “An

examination of the legislative processes which

resulted in the 1904 Act convinces us . . . that this

purpose was carried forth and enacted.” Id. at 592.

Similarly, here, the unratified 1891 agreement

with the Tribes served as a predicate for the 1905 Act.

Indeed,

in

introducing

the

Mondell

Bill,

Representative Mondell had the 1891 agreement read

App-30

into the record and then offered amendments to that

agreement to reflect the revisions discussed. 38 Cong.

Rec. 5,245, 5,245, 5,246-47 (1904). Thus, the actual

congressional record belies the EPA’s finding that no

continuity of purpose existed between the 1891

agreement and the 1905 Act. That provisions were

revised to reflect the McLaughlin negotiations and the

prevailing policy on compensating Native Americans

for ceded land at the time is insufficient reason for

severing and rendering irrelevant the circumstances

prior to 1904.

Additionally, this case is unlike Solem, because

the legislative history reveals that Congress explicitly

stated its intent to cede portions of the Reservation.

Cf. Solem, 465 U.S. at 477 (Congress enacted a “sell

and dispose” act). Moreover, the 1905 Act bears the

same hallmarks that, as the Supreme Court put it,

made Solem a “more difficult” case and evidenced

diminishment. Compare id. at 474 (explaining act

permitted “Indians already holding allotments on the

opened lands to obtain new allotments . . . ‘within the

respective reservations thus diminished’” (citation

omitted)), with 33 Stat. at 1016 (“[A]nd any Indian

who has made or received an allotment of land within

the ceded territory shall have the right to surrender

such allotment and select other lands within the

diminished reserve in lieu thereof . . . .”).************** In

************** Of course, Congress’s inclusion or removal of certain

provisions in the 1905 Act may cut against—but not defeat—a

finding of diminishment. For example, the Act included a

provision that retained the lease rights of one Asmus Boysen and

gave him the option to purchase preferential land. 33 Stat. at

1020. Boysen’s agreement with the Tribes contained a clause that

would have terminated the lease upon extinguishment of the

App-31

the end, 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. And the statements in the

legislative history about the diminishment of the

reservation, when taken together with the Act’s plain

language, compel the conclusion Congress intended to

diminish the Wind River Reservation by separating

the land north of the Big Wind River.

C. Subsequent Treatment of the Area

Third and finally, and “[t]o a lesser extent,” we

can consider “Congress’s own treatment of the affected

areas, particularly in the years immediately following

the opening,” as well as “the manner in which the

Bureau of Indian Affairs and local judicial authorities

dealt with unallotted open lands.” Solem, 465 U.S. at

Tribes’ title to covered lands. JA 4604. The EPA’s decision opined

that Congress’s concern with the Boysen lease—particularly, its

potential for clouding the title of certain opened lands—evinced

an intent not to diminish the Reservation’s boundaries. JA 460607. The EPA’s understanding of Congress’s treatment of the

Boysen lease was limited to a finding 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.” JA 4606. But

as we explained in step one of our analysis, the existence of a

trust relationship is not determinative of diminishment, and,

unlike Hagen, this is not a “public domain” case. Additionally, the

EPA pointed to Congress’s removal of a provision that would have

required the United States to pay the Tribes for sections 16 and

36 (as school lands) or equivalent lands of each township. JA

4608-09. The Supreme Court found the inclusion of such a

provision probative of diminishment in Rosebud and Yankton

Sioux. See Rosebud, 430 U.S. at 599-601; Yankton Sioux, 522 U.S.

at 349-50. But the record in this case reveals that Wyoming may

have received federal land elsewhere in exchange, obviating the

need for a school lands provision.

App-32

471. “[A]s one additional clue as to what Congress

expected would happen,” we also “look to the

subsequent demographic history of opened lands.” Id.

at 471-72. But although such evidence can buttress a

finding of diminishment based on the statutory text,

the Supreme Court “has never relied solely on this

third consideration.” Parker, 136 S. Ct. at 1081.

Accordingly, subsequent events “‘cannot undermine

substantial and compelling evidence from an Act and

events surrounding its passage.’” Osage Nation, 597

F.3d at 1122 (quoting Yazzie, 909 F.2d at 1396). Our

review of the subsequent treatment of the area is

therefore brief and ultimately does not impact our

conclusion Congress intended to diminish the

Reservation by the 1905 Act.

From the outset, we note the parties have

provided volumes of material evidencing the

treatment of the ceded land after the 1905 Act.

Unsurprisingly, each side has managed to uncover

treatment by a host of actors supporting its respective

position. Recognizing this inevitability, the Supreme

Court has warned that at times “subsequent

treatment” may be “so rife with contradictions and

inconsistencies as to be of no help to either side.”

Solem, 465 U.S. at 478. Because we are unable to

discern clear congressional intent from the

subsequent treatment, we find it is of little evidentiary

value. See also JA 4624 (the EPA conceding

“Congressional and Executive Branch references to

the opened area were inconsistent”); JA 3636 (Solicitor

indicating “[t]he evidence from the years immediately

App-33

after the 1905 Act indicates some inconsistent

treatment of the 1905 area”).***************

Nonetheless, we examine some of the more

germane evidence. Perhaps the most telling indication

that Congress intended to diminish the Reservation’s

boundaries in the 1905 Act is the Indian

Reorganization Act, 48 Stat. 984 (1934), in which

Congress began implementing its new policy of Indian

self-determination. But because the Tribes opted out

of the Reorganization Act that would have restored the

ceded lands, in 1939, Congress authorized the

restoration of “all undisposed-of surplus or ceded

lands . . . which [we]re not at present under lease or

permit to non-Indians,” and restored to tribal

ownership the “balance of said lands progressively as

and when the non-Indians owned the lands.” 53 Stat.

1128, 1129-30 (1939). In administering the land

restoration, the Secretary of the Interior sought to

“add” the restored lands to, or “make them part of,”

the Reservation. For example, in one order, the

Secretary stated,

Now, Therefore, by the virtue of authority

vested in the Secretary of the Interior by

section 5 of the Act of July 27, 1939 (53 Stat.

1128-1130), I hereby find that the restoration

to tribal ownership of the lands described

above, which are classified as undisposed of,

ceded lands of the Wind River Reservation,

*************** We agree with Judge Lucero that the Solem third

step tells us little of value, and in fact “irrationally” requires us

to infer intent from subsequent demographic developments. The

better guide is statutory text and the historical context that drove

Congressional action.

App-34

Wyoming, . . . will be in the tribal interest,

and they are hereby restored to tribal

ownership for the use and benefit of the

Shoshone- Arapahoe Tribes of Indians of the

Wind River Reservation, Wyoming, and are

added to and made part of the existing Wind

River Reservation . . . .

9 Fed. Reg. 9,754 (1944) (emphasis added). It is

difficult to conceive why the Secretary would have

used such language if indeed the ceded lands at all

relevant times remained part of the Reservation.

Subsequent statements made by Congress also

indicate Congress believed the 1905 Act changed the

Reservation’s boundaries. In 1907, Congress extended

the time for entry onto the ceded territory. In that Act,

Congress referred to the land as “lands formerly

embraced in the Wind River of Shoshone Indian

Reservation, in Wyoming, which were opened for

entry.” 34 Stat. 849 (1907) (emphasis added); see also

H.R. Doc. No. 64-1757, at 9 (1916) (stating “the

[irrigation] project under consideration is within the

‘ceded lands’ portion of what was formerly included in

the Wind River or Shoshone Indian Reservation”

(emphasis added)). Again, Congress’s consistent

reference to lands that were formerly part of the

Reservation is probative of diminishment.

Likewise, some maps from the period indicate the

Reservation only included the unopened lands. See JA

3638 (explaining 1907 map by the State of Wyoming

and 1912 map by the General Land Office purported

to show the Reservation’s boundaries only

encompassed lands unopened by the 1905 Act). But, as

the solicitor pointed out in her 2011 opinion, other

App-35

maps merely reference the ceded lands as “open

lands.” Id. Ultimately, we agree with the solicitor that

“[t]hese references are ambiguous and inconsistent at

best.” Id.

We also briefly consider the subsequent

demographics of the ceded area, though this

consideration is the least probative of congressional

intent. Solem, 465 U.S. at 471-72. As we have

previously

stated,

“‘subsequent

events

and

demographic history can support and confirm other

evidence but cannot stand on their own; by the same

token they cannot undermine substantial and

compelling evidence from an Act and events

surrounding its passage.’” Osage Nation, 597 F.3d at

1122 (quoting Yazzie, 909 F.2d at 1396). Here, the

demographic history is mixed. On the one hand, only

a small portion of the ceded land was ultimately sold

to non-Indians because of disinterest in the area. See

JA 3638. On the other hand, as the Wyoming Supreme

Court has noted, roughly ninety-two percent of the

population of Riverton—the largest township on the

ceded land—is non-Indian. Yellowbear, 174 P.3d at

1283. These mixed demographics do not establish that

“non-Indian settlers flooded into the opened portion,”

causing the area to “los[e] its Indian character,”

Solem, 465 U.S. at 471-72; by the same token, they do

not undermine our conclusion that the statutory

language and historical context of the 1905 Act compel

a finding of diminishment.

Finally, jurisdictional and judicial treatment of

the area is also mixed and thus has little probative

value. Wyoming has previously exercised criminal

jurisdiction over parts of the disputed area. For

App-36

example, in a 1960 opinion the Wyoming Supreme

Court found the state had jurisdiction over a crime

that occurred north of Riverton in the ceded lands.

Blackburn v. State 357 P.2d 174, 179-80 (Wyo. 1960).

Ten years later, the court held the state had

jurisdiction over a murder committed in Riverton.

State v. Moss, 471 P.2d 333, 339 (Wyo. 1970). And in

Yellowbear, the court applied the Solem factors and

concluded “that it was the intent of Congress in

passing the 1905 Act to diminish the Wind River

Indian Reservation.” 174 P.3d at 1284. The court thus

determined the state had jurisdiction to prosecute

Yellowbear. Id. Upon habeas review, we declined to

disturb that decision. Yellowbear, 380 F. App’x at 743.

On the other hand, both Wyoming and several

federal agencies have exercised civil jurisdiction over

the disputed area. Aple. EPA Br. 65-66. And in

deciding Dry Creek Lodge, Inc. v. Arapahoe &

Shoshone Tribes, we summarily referred to the town

of Riverton as being within the boundaries of the

Reservation. 623 F.2d 682, 683 (10th Cir. 1980)

(“Plaintiffs’ land is within the exterior boundaries of

the Wind River Reservation of the Shoshone and

Arapahoe Indians in Wyoming.”). But as the EPA

acknowledged in its decision below, Dry Creek is

“generally unrevealing regarding the legal effect of the

1905 Act,” given that we did not consider the 1905 Act

in light of the Solem criteria. JA 4645.

Adding to the varied treatment is the Wyoming

Supreme Court’s decision in In re General

Adjudication of All Rights to Use Water in the Big

Horn River System (Big Horn I), 753 P.2d 76 (Wyo.

1988), aff’d sub nom. Wyoming v. United States, 492

App-37

U.S. 406 (1989), overruled in part by Vaughn v. State,

962 P.2d 149 (Wyo. 1998). But Big Horn I actually tells

us little about how courts have treated the Wind River

Reservation. Contrary to the Tribes’ assertion, the

court in Big Horn I did not interpret the 1905 Act as

maintaining a larger Reservation. Instead, the court

merely held the 1905 Act did not evince a clear intent

to abrogate the water rights granted to the entire

Wind River Reservation at its creation in 1868. Big

Horn I, 753 P.2d at 93-94. The court never stated that

its allocation of water rights was based upon the

Reservation boundaries, nor did it make a specific

finding about those boundaries.

Nevertheless, the Northern Arapaho argue Big

Horn I bars Wyoming from challenging the EPA’s

boundary determination on res judicata grounds. But,

as detailed above, Big Horn I concerned the allocation

of water rights, specifically the priority dates for those

rights. 753 P.2d at 83. The special master’s conclusion

that the 1905 Act did not sever the 1868 priority date

for water rights, see id. at 92, is not determinative on

the issue of diminishment—the issues are mutually

exclusive, and Wyoming is not relitigating the water

rights determination. Indeed, in dispensing of the

issue, the Wyoming Supreme Court merely stated, “A

reservation of water with an 1868 priority date is not

inconsistent with the permit provisions of the preWinters 1905 Act.” Id. at 93. Even more detrimental

to the Northern Arapaho’s position, the Wyoming

Supreme Court has since expressly rejected the

Tribe’s characterization of Big Horn I. In Yellowbear,

the court stated “while [the majority and the dissent]

disagreed over whether reserved water rights

continued to exist in the ceded lands, the majority and

App-38

dissent in Big Horn River agreed that the reservation

had been diminished.” 174 P.3d at 1283 (emphasis

added).

In sum, on balance the subsequent treatment of

the ceded lands neither bolsters nor undermines our

conclusion, based on steps one and two of the Solem

framework, that the 1905 Act diminished the Wind

River Reservation.

III. Conclusion

For the foregoing reasons, we find Congress

diminished the boundaries of the Wind River

Reservation. We therefore GRANT Wyoming’s

petition for review, VACATE the EPA’s order, and

REMAND for further proceedings consistent with this

opinion.

App-39

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________

Nos. 14-9512, 14-9514

________________

STATE OF WYOMING, and WYOMING FARM BUREAU

FEDERATION,

v.

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; E. SCOTT PRUITT, In his official capacity as

Administrator of the United States Environmental

Protection Agency; DOUG BENEVENTO, in his official

capacity as Acting Region 8 Administrator of the

United States Environmental Protection Agency,*

Respondents.

________________

THE NORTHERN ARAPAHO TRIBE; EASTERN SHOSHONE

TRIBE; CITY OF RIVERTON, WYOMING; FREMONT

COUNTY, WYOMING,

Intervenors.

________________

STATE OF IDAHO; STATE OF ALABAMA; STATE OF

COLORADO; STATE OF KANSAS; STATE OF MONTANA;

STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE

OF OKLAHOMA; STATE OF SOUTH DAKOTA; STATE OF

UTAH; INDIAN LAW PROFESSORS; RIVERTON MEMORIAL

* Pursuant to Fed. R. App. P. 43(c)(2) Doug Benevento is

substituted for Deb Thomas as the Region 8 Administrator of the

United States Environmental Protection Agency.

App-40

HOSPITAL, LLC; FEDERAL INDIAN LAW PROFESSORS;

NATIONAL CONGRESS OF AMERICAN INDIANS,

Amici Curiae.

________________

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. EPA-1-R09-2013-007)

________________

Before TYMKOVICH, Chief Judge, KELLY, and

LUCERO, Circuit Judges.

________________

Filed February 22, 2017

________________

LUCERO, J., dissenting.

The “Indian right of occupancy of tribal lands,

whether declared in a treaty or otherwise created, has

been stated to be sacred.” Lone Wolf v. Hitchcock, 187

U.S. 553, 564 (1903). Our respect for this right stems,

or should stem, from Tribes’ status as “separate

sovereigns pre-existing the Constitution.” Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 56 (1978). Although

Congress possesses the unilateral authority to

diminish the reservations of these sovereign nations,

Solem v. Bartlett, 465 U.S. 463, 470 n.11 (1984) (citing

Lone Wolf, 187 U.S. 553), we must not lightly assume

that Congress has exercised this destabilizing power.

Only when express statutory language, legislative

history, and surrounding circumstances “point

unmistakably to the conclusion that” a reservation

was diminished should we read a statute as having

App-41

that effect. DeCoteau v. Dist. Cty. Ct. for Tenth Jud.

Dist., 420 U.S. 425, 445 (1975).

In 1905, Congress passed an act transferring

certain lands in the Wind River Reservation to the

United States. The federal government was to act as

trustee by selling the lands and paying the Indians the

proceeds. Act of March 3, 1905, 33 Stat. 1016 (the

“1905 Act” or the “Act”). From this placement of

property into trust status in exchange for a conditional

promise of payment, my colleagues in the majority

infer clear congressional intent to diminish the Wind

River Reservation. I cannot agree. By deriving an

intent to diminish absent sum-certain payment or

statutory language restoring lands to the public

domain, the majority opinion creates a new low-water

mark in diminishment jurisprudence. Applying the

three-step analysis from Solem, 465 U.S. at 470-71, I

would hold that the 1905 Act did not diminish

Reservation boundaries. Accordingly, I respectfully

dissent.

I.

Our diminishment analysis begins with the

statutory text. The Court has stated that “language

evidencing the present and total surrender of all tribal

interests,” when coupled with an “unconditional

commitment from Congress to compensate the Indian

tribe for its opened land,” creates a presumption of

diminishment. Solem, 465 U.S. at 470-71; see also

DeCoteau, 420 U.S. at 445-49 (finding diminishment

based on language of cession and sum-certain

payment). The 1905 Act states that the Indians “cede,

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

title, and interest” to certain lands “within the said

App-42

reservation.” 33 Stat. at 1016. But the United States

did not agree to pay a sum certain. Instead, the Act

provides that “the United States shall act as trustee

for said Indians to dispose of said lands and to expend

for said Indians and pay over to them the proceeds

received from the sale thereof only as received, as

herein provided.” Id. at 1021 (emphasis added).

Moreover, the Act states that “nothing in this

agreement contained shall in any manner bind the

United States to purchase any portion of the lands

herein described or to dispose of said lands except as

provided herein, or to guarantee to find purchasers for

said lands.” Id. at 1020. Citing the Act’s designation of

a portion of the sale proceeds for per capita payments,

the majority adopts the euphemism “hybrid payment

scheme.” (Majority Op. 20.) However, the terms of the

statute unambiguously reflect a conditional promise

to pay.

Because the 1905 Act lacked sum-certain

payment, the majority opinion’s reliance on sumcertain cases is misplaced. It repeatedly asserts that

the language of the 1905 Act, like the statutory

language in DeCoteau, is “precisely suited” to

diminishment. (See, e.g., Majority Op. 14 (citing

DeCoteau, 420 U.S. at 445).) But when the Court in

DeCoteau made that observation, it was comparing

the statutory language of an 1889 agreement to “that

used in the other sum-certain, cession agreements”

ratified in the same act. 420 U.S. at 446 (emphasis

added). The DeCoteau Court distinguished both

Seymour v. Superintendent, 368 U.S. 351 (1962), and

Mattz v. Arnett, 412 U.S. 481 (1973), in part, on the

ground that the acts at issue in those cases

conditioned payment to the tribes on the “uncertain

App-43

future proceeds of settler purchases”—precisely the

situation presented here. DeCoteau, 420 U.S. at 448.

In contrast, the 1891 act in DeCoteau “appropriate[d]

and vest[ed] in the tribe a sum certain.” Id.

The 1905 Act differs from legislation deemed to

have diminished reservations in another important

respect: It did not restore the lands at issue to the

public domain. Cf. id. at 446 (citing legislators’

statements that “ratified agreements would return the

ceded lands to the ‘public domain’” to support claim

that

agreements

unquestionably

diminished

reservations). Because the lands at issue here were

held in trust under the Act, they remained Indian

lands. In Ash Sheep Co. v. United States, 252 U.S. 159

(1920), the Tribe “ceded, granted, and relinquished to

the United States all of their right, title and interest.”

Id. at 164 (quotations omitted). However, the

government did not provide unconditional payment,

promising only to give the Indians the future proceeds

of any land sales. Id. at 164-65. And, in language

nearly identical to the 1905 Act, the statute stated

that the United States was not bound to purchase or

sell the affected lands but rather to “act as trustee” in

their disposal. Id. at 165-66. The Court determined,

based on this language, that although the Indians had

“released their possessory right to the government,”

the lands remained “Indian lands” because any

benefits derived therefrom would belong to the

Indians as beneficiaries and not the government as

trustee until the lands were sold. Id. at 166.1

1 The majority states that Ash Sheep is seldom cited in more

recent diminishment cases because it addresses the different

issue of whether lands became “public lands.” (Majority Op. 22.)

App-44

Admittedly, the retention of a beneficial interest

is not dispositive of reservation status. See Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584, 601 n.24 (1977).

But the majority too easily dismisses the trust status

of the lands at issue. (See Majority Op. at 22-23.) “The

notion that reservation status of Indian lands might

not be coextensive with tribal ownership was

unfamiliar at the turn of the century.” Solem, 465 U.S.

at 468. Accordingly, although it is not determinative,

Congress’ decision not to restore these lands to the

public domain cuts strongly against the majority’s

conclusion that the Reservation was diminished.

Given the absence of sum-certain payment or

restoration of lands to the public domain, we could

easily interpret the language of cession contained in

the 1905 Act as merely opening portions of the Wind

River Reservation to settlement.2 In assessing

But in DeCoteau, a case upon which the majority relies, the Court

cites Ash Sheep in distinguishing Mattz based on the absence of

sum-certain payment. See DeCoteau, 420 U.S. at 448.

2 As in Solem, the 1905 Act provides that Indians who held an

allotment within the opened territory would be permitted to

obtain a new allotment in the unopened area, referring to the

latter as the “diminished reserve.” 33 Stat. at 1016; Solem, 465

U.S. at 474 (describing unopened areas as “reservations thus

diminished”). But the Supreme Court explained that this phrase

“cannot carry the burden of establishing an express congressional

purpose to diminish” because at the time of the Act, “‘diminished’

was not yet a term of art in Indian law.” Solem, 465 U.S. at 475

& n.17. Thus, Congress “may well have been referring to

diminishment in common lands and not diminishment of

reservation boundaries.” Id. Similarly, references to a

reservation “in the past tense” should not “be read as a clear

indication of congressional purpose to terminate.” Mattz, 412

U.S. at 498-99.

App-45

statutory language nearly identical to the 1905 Act,

the Eighth Circuit concluded that the Devils Lake

Indian Reservation had not been diminished. United

States v. Grey Bear, 828 F.2d 1286 (8th Cir.), vacated

in part on other grounds on reh’g en banc, 836 F.2d

1088 (8th Cir. 1987). Specifically, the court held that

although the language “do hereby cede, surrender,

grant, and convey to the United States all their claim,

right, title, and interest” was suggestive of

diminishment, id. at 1290 (emphasis omitted)

(quoting Act of April 27, 1904, ch. 1620, 33 Stat. 32122), it did not “evince a clear congressional intent to

disestablish the Devils Lake Reservation” absent an

“unconditional commitment” by Congress to pay for

the ceded lands, id.

The majority attempts to distinguish Grey Bear,

noting that the legislative history of the act at issue

there was not extensive and that subsequent

treatment of the area weighed against a finding of

diminishment. (Majority Op. 17 n.6.) But the majority

claims that the statutory text “strongly suggests that

Congress intended to diminish the boundaries of the

Wind River Reservation” and that the lack of sum

certain payment does “not compel a different

conclusion.” (Id. at 23.) The majority thus reaches a

conclusion squarely opposite to one of our sibling

circuits, creating a needless circuit split.

The Supreme Court has counseled that “[w]hen

we are faced with . . . two possible constructions, our

choice between them must be dictated by a principle

deeply rooted in this Court’s Indian jurisprudence:

Statutes are to be construed liberally in favor of the

Indians, with ambiguous provisions interpreted to

App-46

their benefit.” Cty. of Yakima v. Confederated Tribes

& Bands of Yakima Indian Nation, 502 U.S. 251, 269

(1992) (quotation and alteration omitted). Adhering to

that principle in this case, we must read the 1905 Act

as providing for sale and opening of lands rather than

diminishment.

II.

In very limited circumstances, courts have been

willing to find diminishment even absent “explicit

language of cession and unconditional compensation.”

Solem, 465 U.S. at 471. But that is true only if

surrounding circumstances “unequivocally reveal a

widely-held, contemporaneous understanding that the

affected reservation would shrink as a result of the

proposed legislation.” Id. A “few phrases scattered

through the legislative history” are insufficient to

manufacture clear congressional intent to diminish if

a plain statement of that objective is lacking in the

statutory text. Id. at 478.

Legislative history surrounding two ancillary

portions of the 1905 Act counsel against an intent to

diminish. First, Congress chose to omit a school lands

provision from the 1905 Act, demonstrating its view

that the opened lands retained their Reservation

status. A precursor bill, presented to Congress in

1904, initially provided that the United States would

pay $1.25 per acre for sections 16 and 36, or equivalent

lands, in the opened townships. 38 Cong. Rec. H5247

(1904). This provision mirrored the Wyoming

Enabling Act, which grants sections 16 and 36 of each

township to the state for school purposes unless those

lands are sold or disposed of, in which case the state

may take other lands in lieu. Wyoming Enabling Act,

App-47

ch. 664, § 4, 26 Stat. 222, 222-23 (1890). During debate

on the 1904 bill, Representative Mondell proposed to

strike the school lands provision. 38 Cong. Rec. H5247.

He explained that although “the bill originally

provided that the State should take lands on the

reservation” for the price of $1.25 per acre, eliminating

the school lands provision would “leav[e] the State

authorized under the enabling act to take lieu lands.”

Id. (statement of Rep. Mondell) (emphasis added).

Both Mondell’s statement and the decision to omit the

provision evince the belief that sections 16 and 36

would remain part of the Reservation. The House

Committee on Indian Affairs later reported that it had

adhered to this policy in drafting the bill that would

ultimately become the 1905 Act. See H.R. Rep. No. 583700, pt. 1, at 7 (1905) (stating that it had been

“deemed wise by the committee to adhere to the policy

laid down in the former bill and agreement,” under

which there was no school lands provision and

“Indians [were] to receive the same rates from settlers

for sections 16 and 36 as paid for other lands”).3

Conversely, if a school lands provision is included

in a statute, the Supreme Court has been more apt to

find congressional intent to diminish. In Rosebud, for

Although the Wyoming Enabling Act did not exempt

reservations from the grant of sections 16 and 36 to the state for

school purposes, the Wyoming Constitution disclaims “all right

and title to . . . all lands lying within said limits owned or held by

any Indian or Indian tribes.” Wyo. Const. art. XXI, § 26. Because

“Congress is presumed to act with knowledge of controlling

constitutional limitations” when it enacts new statutes, Golan v.

Gonzales, 501 F.3d 1179, 1183 (10th Cir. 2007), the decision to

omit the school lands provision is further evidence Congress

believed the opened lands to retain their reservation status.

3

App-48

example, the Court held that the inclusion of a similar

school lands provision evinced “congressional intent to

disestablish Gregory County from the Rosebud

Reservation, thereby making the sections available for

disposition to the State of South Dakota for school

sections.” 430 U.S. at 601 (quotation omitted); see also

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,

349-50 (1998) (inclusion of school lands provision

indicative of intent to diminish).4 The majority notes

that the State of Wyoming may have received federal

land elsewhere as a result of Congress’ decision to omit

the school lands provision. (Majority Op. 33 n.13.) But

that is exactly the point. By striking the provision,

Congress recognized that Wyoming could take lieu

lands elsewhere, rather than pay $1.25 for “lands on

the reservation.” 38 Cong. Rec. H5247 (statement of

Rep. Mondell) (emphasis added); see also 26 Stat. at

222-23.

Also weighing against a finding of diminishment

is a provision granting Asmus Boysen a preferential

right to lease new lands “in said reservation” in lieu of

his existing lease rights. 33 Stat. at 1020. The

In contrast to the Wyoming Enabling Act, the statute

admitting North and South Dakota into the Union expressly

provided that sections 16 and 36 “embraced in permanent

reservations” would not “be subject to the grants . . . of [the] act.”

Act of February 22, 1889, 25 Stat. 676, 679. However, as

discussed in n.3, supra, the Wyoming Constitution served a

similar function by disclaiming “all right and title” to lands held

by Indian Tribes. Wyo. Const. art XXI, § 26. Accordingly, even if

the grant of sections 16 and 36 on the Wind River Reservation

was not expressly prohibited by the Wyoming Enabling Act, it

makes sense that Congress would not have provided for Wyoming

to take lands to which the state had “forever disclaim[ed] all

right and title.” Id.

4

App-49

provision was opposed by a minority in the House of

Representatives, who argued that Boysen should not

be granted preferential rights because his lease would

terminate upon passage of the Act, and because “other

persons desiring to enter and settle upon the lands to

be opened” should stand on equal footing. H.R. Rep.

No. 58-3700, pt. 2, at 2, 3 (emphasis added). By

describing the “lands to be opened” as being “in said

reservation,” 33 Stat. at 1020, the 1905 Act

demonstrates Congress’ understanding that the

opened areas would retain their reservation status.5

The majority relies on a prior history of

negotiations to conclude that the 1905 Act resulted in

diminishment, citing Rosebud for the proposition that

implied continuity in purpose from a prior agreement

is informative. (See Majority Op. 31-32 (citing

Rosebud, 430 U.S. at 590-92); see also id. at 15 n.2.)

5 Although the trust status of lands is not dispositive of the

diminishment issue, the inclusion of the Boysen provision is

further evidence that the opened lands were placed in trust for

the benefit of the Tribes. Boysen had previously entered into a

mineral lease with the Tribes that included portions of the

opened area. The terms of the lease provided it would terminate

“in the event of extinguishment . . . of the Indian title to the lands

covered by” the agreement. As discussed, supra, a minority

opposed to the provision argued that there was no need to grant

Boysen preferential rights to the opened lands because his

existing lease rights would automatically terminate upon

passage of the 1905 Act. But as Representative Marshall, the

chairman of the subcommittee that considered the Boysen

provision, explained, Indian title would not be extinguished

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.” 39 Cong. Rec. H1945 (1905) (statement

of Rep. Marshall).

App-50

But the negotiation history presented here differs

markedly from that considered by the Court in

Rosebud. In Rosebud, the Rosebud Sioux Tribe

reached an agreement with the United States to

diminish reservation boundaries in 1901. 430 U.S. at

587. Although Congress failed to ratify the agreement,

the Court concluded that the agreement’s purpose was

carried out in subsequent acts passed in 1904, 1907,

and 1910. Id. at 587-88, 592.

There were several factors in Rosebud that are not

present in this case. Notably, a mere three years

passed between the 1901 agreement and the 1904 act

in Rosebud. It should be unsurprising that

congressional intent remained static for such a brief

period. Here, my colleagues rely extensively on a

proposed agreement from 1891, nearly a generation

prior to passage of the 1905 Act. (See Majority Op. 2425, 32.)

Further, in Rosebud the reason Congress failed to

ratify the prior agreement “was not jurisdiction, title,

or boundaries” but “simply put, money.” 430 U.S. at

591 n.10 (quotation omitted). The 1904 act was

essentially identical to the 1901 agreement other than

the form of payment. Id. at 594-97. In contrast, the

government and Tribes in this case were unable to

reach an agreement as to the particular lands to be

opened in either 1891 or 1893. In 1891, certain

members of Congress called for the opening of more

lands than what was provided for in the proposed

agreement. H.R. Doc. No. 52-70, at 7-8 (1892). And the

Tribes rejected three separate counteroffers in 1893,

indicating they did not wish to sell the lands under

discussion. H.R. Doc. No. 53-51 (1894). Thus, unlike

App-51

the three-year delay in Rosebud from an agreement

that went unratified because of concerns over the

manner of payment, we are presented with a fourteenyear halt following negotiations that failed because

the parties could not agree on material terms.

Not only did a significant period of time elapse

between the 1891 negotiations and the 1905 Act in

this case, but any continuity of purpose was also

disrupted by intervening agreements regarding

cession of other portions of the Reservation. In 1896,

for example, Inspector McLaughlin successfully

negotiated the Thermopolis Purchase Act, under

which the Tribes ceded the Big Horn Hot Springs to

the United States in exchange for a sum-certain

payment of $60,000. Act of June 7, 1897, 30 Stat. 62,

93-94. At a council meeting in 1922, McLaughlin

expressly distinguished the agreements underlying

the 1897 and 1905 Acts, stating that they were

“entirely distinct and separate” and that under the

1905 Act, “the government simply acted as trustee for

disposal of the land north of the Big Wind River.”

The absence of a continuity of purpose to diminish

the Reservation is further evidenced by the

negotiations preceding passage of the 1905 Act. In his

1903 negotiations with the Rosebud Tribe,

McLaughlin stated that he was there “to enter into an

agreement which is similar to that of two years ago,

except as to the manner of payment.” Rosebud, 430

U.S. at 593. In this case, McLaughlin did not tell the

Tribes in 1904 that he sought to reopen the 1891 or

1893 negotiations. And although the majority quotes

McLaughlin’s use of the word “cede,” (Majority Op.

27), he used that term interchangeably with the

App-52

concept of “opening . . . certain portions of [the]

reservation for settlement by the whites.” Similarly,

any references to a diminished reservation “may well

have been referring to diminishment in common lands

and not diminishment of reservation boundaries.”

Solem, 465 U.S. at 475 & n.17.

Looking to the totality of the circumstances

surrounding the 1905 Act, it cannot be said that they

“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 (emphasis added). At best, the

historical record is mixed regarding Congress’ intent.

As such, it is insufficient to overcome ambiguity in the

statutory text.

III.

At the third step of the Solem analysis, we

consider “[t]o a lesser extent . . . events that occurred

after the passage of a surplus land act to decipher

Congress’s intentions.” Solem, 465 U.S. at 471. But

this third prong comes into play only at the margins.6

6 Although I acknowledge that controlling precedent permits

courts to consider post-enactment events, I feel compelled to

remark on the irrational nature of such an inquiry. The

demographic makeup of an area decades or more following

passage of a statute cannot possibly tell us anything about the

thinking of a prior Congress. See Philip P. Frickey, A Common

Law for Our Age of Colonialism: The Judicial Divestiture of

Indian Tribal Authority Over Nonmembers, 109 Yale L.J. 1, 19

(1999) (noting “[t]he conceptual problem with this approach, of

course, is that postenactment developments reveal nothing about

original congressional intent, much less intent sufficiently clear

to satisfy the canon” requiring ambiguous statutes to be

construed in favor of tribal interests). The Court itself has

apparently recognized the dubiousness of this analysis, referring

App-53

If “an act and its legislative history fail to provide

substantial

and

compelling

evidence

of

a

congressional intention to diminish Indian lands, we

are bound by our traditional solicitude for the Indian

tribes to rule that diminishment did not take place

and that the old reservation boundaries survived the

opening.” Solem, 465 U.S. at 472.

Because the statutory text and legislative history

in this case fail to provide compelling evidence of

congressional intent to diminish, we need not consider

this third prong. Even if we did, however, I agree with

the majority that the post-Act record is so muddled it

does not provide evidence of clear congressional

intent. (Majority Op. 34-35.)7 But, as with the first two

steps in the analysis, this lack of clarity must not be

treated as a neutral element. Because we apply a

“presumption that Congress did not intend to

diminish,” Solem, 465 U.S. at 481, proponents of

diminishment must show that “non-Indian settlers

flooded into the opened portion of a reservation and

to “de facto” diminishment as a “necessary expedient.” Solem, 465

U.S. at 471, 472 n.13.

The third step of the Solem analysis cannot be meaningfully

described as a tool to decipher congressional intent. Rather, it is

a means of ignoring that intent. Courts should be loath to

abandon the proper tools of statutory interpretation in any

context, but to do so with respect to Indian law is particularly

perverse given our canon of construction that “statutes are to be

construed liberally in favor of the Indians.” Confederated Tribes

& Bands of Yakima Indian Nation, 502 U.S. at 269 (quotation

and alteration omitted).

7 I also agree with the majority that this controversy has not

been rendered moot and that the Wyoming Farm Bureau has

standing. (See Majority Op. 10-11 n.1.)

App-54

the area has long since lost its Indian character,” id.

at 471. The appellants have not met this burden.

Land sales in the opened area were largely a

failure. By 1915, less than 10% of the land had been

sold to non-Indians, prompting the Department of the

Interior (“DOI”) to indefinitely postpone further sales.

Less than 15% of the opened area was ultimately

transferred to non-Indians. Cf. Yankton Sioux Tribe,

522 U.S. at 339 (noting that approximately 90% of

unallotted tracts were settled in that case); Rosebud,

430 U.S. at 605 (same). The DOI continued to allot

parcels in the opened lands to Tribal members, and in

1939, Congress restored tribal ownership over the

unsold land. Act of July 27, 1939, ch. 387, 53 Stat.

1128. Today, approximately 75% of the lands opened

for settlement by the 1905 Act is held in trust by the

United States for the benefit of the Tribes and their

members.

Despite the sometimes conflicting treatment of

the area by non-Indian authorities, (see Majority Op.

35-40), there can be little doubt that most of the

opened area retains its Indian character. Accordingly,

we face no risk of upsetting “justifiable expectations,”

Rosebud, 430 U.S. at 605, by construing the 1905 Act

as maintaining Reservation boundaries.

IV.

We consider in this case an Act that began with

Inspector McLaughlin’s warning to the Tribes that

“Congress had the right to legislate for the opening of

Indian reservations without consulting the Indians or

obtaining their consent.” Recognizing that Congress

possesses the nearly unfettered power to impose its

will, leaving the Tribes “no choice but to consent,” the

App-55

Court has held that “any doubtful expressions in

[legislation] should be resolved in the Indians’ favor.”

Choctaw Nation v. Oklahoma, 397 U.S. 620, 631

(1970). This rule must be given “the broadest possible

scope” in the diminishment context. DeCoteau, 420

U.S. at 447. In interpreting the 1905 Act, we must

bear in mind the government’s “moral obligations of

the highest responsibility and trust, obligations to the

fulfillment of which the national honor has been

committed.” United States v. Jicarilla Apache Nation,

564 U.S. 162, 176 (2011) (citation and quotations

omitted). With this heavy thumb on the scale, I would

hold that the 1905 Act did not diminish the Wind

River Reservation. I respectfully dissent.

App-56

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________

Nos. 14-9512, 14-9514

________________

STATE OF WYOMING, and WYOMING FARM BUREAU

FEDERATION,

v.

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; E. SCOTT PRUITT, In his official capacity as

Administrator of the United States Environmental

Protection Agency; DOUG BENEVENTO, in his official

capacity as Acting Region 8 Administrator of the

United States Environmental Protection Agency,*

Respondents.

________________

THE NORTHERN ARAPAHO TRIBE; EASTERN SHOSHONE

TRIBE; CITY OF RIVERTON, WYOMING; FREMONT

COUNTY, WYOMING,

Intervenors.

________________

STATE OF IDAHO; STATE OF ALABAMA; STATE OF

COLORADO; STATE OF KANSAS; STATE OF MONTANA;

STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE

OF OKLAHOMA; STATE OF SOUTH DAKOTA; STATE OF

* Pursuant to Fed. R. App. P. 43(c)(2) Doug Benevento is

substituted for Deb Thomas as the Region 8 Administrator of the

United States Environmental Protection Agency.

App-57

UTAH; INDIAN LAW PROFESSORS; RIVERTON MEMORIAL

HOSPITAL, LLC; FEDERAL INDIAN LAW PROFESSORS;

NATIONAL CONGRESS OF AMERICAN INDIANS,

Amici Curiae.

________________

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. EPA-1-R09-2013-007)

________________

Before TYMKOVICH, Chief Judge, KELLY, and

LUCERO, Circuit Judges.

________________

Filed November 7, 2017

________________

ORDER

These matters are before the court on the separate

Petitions for Rehearing En Banc filed by Intervenors

Northern Arapaho Tribe and Eastern Shoshone Tribe.

We also have responses to the petitions from the State

of Wyoming and the Wyoming Farm Bureau

Federation.

Upon consideration, the petitions were circulated

to all the judges of the court who are in regular active

service and who are not recused. See Fed. R. App. P.

35(a). As no judge on the original panel or the en banc

court requested that a poll be called, the requests for

en banc review are denied.

The judges in the majority of the panel decision

have, however, determined amendment of the original

opinion is warranted. The panel therefore grants sua

App-58

sponte panel rehearing in part and to the extent of the

changes made to the attached revision decision. See

Fed. R. App. P. 40. A revised dissent will also be filed.

The clerk is directed to file the revised opinion and

dissent nunc pro tunc to the original filing date of

February 22, 2017.

Finally, we grant the motions filed by the Federal

Indian Law Professors and the National Congress of

American Indians to file amici curiae briefs on

rehearing.

Entered for the Court

[handwritten: signature]

ELISABETH A. SCHUMAKER, Clerk

App-59

Appendix C

FEDERAL REGISTER

ENVIRONMENTAL PROTECTION AGENCY

________________

R08-WR-2013-0007; FRL-9904-28-Region-8

________________

APPROVAL OF APPLICATION SUBMITTED BY THE

EASTERN SHOSHONE TRIBE AND NORTHERN ARAPAHO

TRIBE FOR TREATMENT IN A SIMILAR MANNER AS A

STATE UNDER THE CLEAN AIR ACT

________________

December 19, 2013

________________

SUMMARY

This notice announces that the EPA Regional

Administrator for Region 8 has approved the

December 2008 application submitted by the Northern

Arapaho Tribe and Eastern Shoshone Tribe (Tribes) of

the Wind River Indian Reservation for treatment in a

similar manner as a state (TAS) pursuant to the Clean

Air Act and the EPA’s implementing regulations for

purposes of certain Clean Air Act provisions. None of

the provisions for which the Tribes requested

eligibility entails the exercise of Tribal regulatory

authority under the Clean Air Act.

DATES

EPA’s decision approving the Tribes’ TAS

application was issued and took effect on December 6,

2013.

App-60

ADDRESSES

You may review copies of the Wind River TAS

Decision Document, Attachment 1 (Legal Analysis of

the Wind River Indian Reservation Boundary),

Attachment 2 (Capability Statement), and other

supporting information at the EPA Region 8 Office,

1595 Wynkoop Street, Denver, Colorado 80202–1129.

If you wish to review the documents in hard copy, EPA

requests that you contact the individual listed below

to view these documents. You may view the hard

copies of these documents Monday through Friday,

8:00 a.m. to 4:00 p.m., excluding Federal holidays. If

you wish to examine these documents, you should

make an appointment at least 24 hours before the day

of your visit. Additionally, these documents are

available

electronically

at:

http://www2.epa.gov/region8/tribalassistanceprogram.

FOR FURTHER INFORMATION CONTACT

Carl Daly, Air Program, U.S. Environmental

Protection Agency, Region 8, Mailcode 8P–AR, 1595

Wynkoop Street, Denver, Colorado 80202–1129, (303)

312–6416, daly.carl@epa.gov.

SUPPLEMENTARY INFORMATION

December 17, 2008, as supplemented on

December 23, 2008, the Tribes submitted their TAS

application as authorized by Clean Air Act section

301(d) (42 U.S.C. 7601(d)) and EPA’s regulations at 40

CFR part 49. In their application, the Tribes requested

TAS eligibility for purposes of Clean Air Act provisions

that generally relate to grant funding (e.g., for air

quality planning purposes) (section 105 (42 U.S.C.

7405)); involvement in EPA national ambient air

App-61

quality redesignations for the Reservation (section

107(d)(3) (42 U.S.C. 7407(d)(3)); receiving notices of,

reviewing, and/or commenting on certain nearby

permitting and sources (sections 505(a)(2) (42 U.S.C.

7661d(a)(2)) and 126 (42 U.S.C. 7426); receiving risk

management plans of certain stationary sources

(section § 112(r)(7)(B)(iii) (42 U.S.C. 7412(r)(7)(B)(iii));

and participation in certain interstate and regional air

quality bodies (sections 169B (42 U.S.C. 7492), 176A

(42 U.S.C. 7506a) and 184 (42 U.S.C. 7511c). None of

the provisions for which the Tribes requested

eligibility entails the exercise of Tribal regulatory

authority under the Clean Air Act. The Tribes’ TAS

application thus does not request, and EPA’s decision

to approve the application does not approve, Tribal

authority to implement any Clean Air Act regulatory

programs or to otherwise implement Tribal regulatory

authority under the Clean Air Act.

In accordance with EPA’s regulations, as part of

its review process, EPA notified all appropriate

governmental entities and the public of the Tribes’

TAS application and in that notice specified the

geographic boundaries of the Wind River Indian

Reservation as identified in the Tribes’ application.

EPA afforded the appropriate governmental entities

and the public a period totaling 60 days to provide

written comments regarding any dispute concerning

the boundary of the Reservation. Several commenters

disagreed with the Tribes’ Reservation boundary

description, asserting that a 1905 Congressional Act,

33 Stat. 1016 (1905) (1905 Act), altered and

diminished the Reservation boundary. Consistent

with established TAS procedures, EPA afforded the

Tribes an opportunity to respond to comments

App-62

received by EPA on the Tribes’ application and has

previously made all comments received and the

Tribes’ responses thereto available to the public. In

addition, because EPA was aware of existing

disagreements regarding the Reservation boundary,

EPA exercised its discretion to consult with the U.S.

Department of the Interior (DOI), which has expertise

on Indian country issues. On October 26, 2011, EPA

received an opinion from the DOI Solicitor addressing

the Reservation boundary.

On December 4, 2013, the Tribes sent EPA a letter

requesting that EPA not address at this time the lands

subject to Section 1 of the 1953 Act, 67 Stat. 592

(1953), and stating that the Tribes would notify EPA

in writing if and when they decide to request an EPA

decision with respect to those lands.

EPA has carefully considered the application

materials, the comments received from appropriate

governmental entities and the public and the Tribes’

responses to those comments, the opinion of the DOI

Solicitor, as well as other materials, relevant case law,

applicable statutory and regulatory provisions, and

relevant EPA guidance.

EPA has determined that the Northern Arapaho

and Eastern Shoshone Tribes have met the

requirements of CAA § 301(d)(2) and 40 CFR 49.6 and

are therefore approved to be treated in a similar

manner as a state for purposes of CAA §§ 105,

505(a)(2), 107(d)(3), 112(r)(7)(B)(iii), 126, 169B, 176A,

and 184. EPA’s decision also concludes that the

boundaries of the Reservation encompass and include,

subject to the proviso below concerning the 1953 Act,

the area set forth in the 1868 Treaty of Fort Bridger,

App-63

15 Stat. 673 (1868), less those areas conveyed by the

Tribes under the 1874 Lander Purchase Act, 18 Stat.

291 (1874), and the 1897 Thermopolis Purchase Act,

30 Stat. 93 (1897), and including certain lands located

outside the original boundaries that were added to the

Reservation under subsequent legislation in 1940, 54

Stat. 628 (1940). With regard to the lands subject to

Section 1 of the 1953 Act, 67 Stat. 592 (1953),

consistent with the Tribes’ request that EPA’s TAS

decision not address the lands described in the 1953

Act at this time, the lands are not included in the

geographic scope of approval for this decision. EPA’s

TAS decision therefore does not address the 1953 Act

area. Thus, EPA approved the Tribes’ Application for

Treatment in a Manner Similar to a State Under the

Clean Air Act for Purposes of Section 105 Grant

Program, Affected State Status and Other Provisions

for Which No Separate Tribal Program is Required.

A detailed explanation of EPA’s approval of the

Tribes’ TAS application is contained within the

Decision Document and accompanying attachments

referred to in the ADDRESSES section of this notice

and at http://www2.epa.gov/region8/tribalassistanceprogram.

Judicial Review: Pursuant to section 307(b)(1) of

the Clean Air Act (42 U.S.C. 7607(b)(1)), Petitioners

may seek judicial review of this approval in the United

States Court of Appeals for the Tenth Circuit. Any

petition for judicial review shall be filed within 60

days from the date this notice appears in the Federal

Register, i.e., not later than February 18, 2014.

Authority: 42 U.S.C. 7401 et seq.

Dated: December 11, 2013

App-64

Howard M. Cantor,

Acting Regional Administrator, Region 8.

[FR Doc. 2013-30248 Filed 12-18-13; 8:45 am]

BILLING CODE 6560-50-P

App-65

Appendix D

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

________________

No. EPA-1-R08-2013-0007

________________

APPROVAL OF APPLICATION SUBMITTED BY THE

EASTERN SHOSHONE TRIBE AND NORTHERN ARAPAHO

TRIBE FOR TREATMENT IN A SIMILAR MANNER AS A

STATE FOR PURPOSES OF CLEAN AIR ACT SECTIONS

105, 505(a)(2), 107 (d)(3), 112(r)(7)(B)(iii), 126, 169B,

176A AND 184

________________

Filed December 6, 2013

________________

LEGAL ANALYSIS OF THE WIND RIVER

INDIAN RESERVATION BOUNDARY

This legal analysis of the Wind River Indian

Reservation boundary accompanies the EPA Region 8

Decision Document approving the application

submitted by the Northern Arapaho and Eastern

Shoshone Tribes (Tribes) for treatment in a similar

manner as a state (TAS) pursuant to section 301(d) of

the Clean Air Act (CAA) for purposes of CAA §§ 105

grant funding, 505(a)(2) affected state status, and

other provisions for which no separate tribal program

is

required,

specifically

sections

107(d)(3),

112(r)(7)(B)(iii), 126, 169B, 176A, and 184. None of the

provisions for which the Tribes are seeking TAS

eligibility would entail the exercise of Tribal

regulatory authority under the CAA. The Tribes’

App-66

application did not request, nor does EPA’s decision

approve, Tribal authority to implement any CAA

regulatory programs or to otherwise exercise Tribal

regulatory authority under the CAA.

The Region 8 Decision Document sets forth EPA’s

determination with regard to the TAS eligibility

criteria enumerated in CAA § 301(d)(2) and 40 C.F.R.

§ 49.6. The third TAS criterion at 40 C.F.R. § 49.6(c),

which specifies that “the functions to be exercised by

the Indian tribe pertain to the management and

protection of air resources within the exterior

boundaries of the reservation or other areas within the

tribe’s jurisdiction” entails a determination of the

exterior boundaries of the Wind River Indian

Reservation. EPA has prepared this legal analysis

because objections were raised with respect to the

Reservation boundary description included in the

Tribes’ TAS application.

In determining the Reservation boundaries, EPA

exercised its discretion to consult with the United

States Department of the Interior (DOI), which has·

expertise in such matters. In particular, EPA

requested and the Solicitor of DOI provided a written

opinion on the exterior boundaries of the Reservation.

EPA also analyzed the Tribes’ description of the

Reservation boundaries, comments received on the

Tribes’ boundary description, the Tribes’ subsequent

response to those comments and other relevant

information. Generally, commenters objecting to the

Tribes’ Reservation boundary description asserted

that a 1905 Congressional Act, 33 Stat. 1016 (1905)

(1905 Act), which opened the Wind River Indian

Reservation to homesteading, also had the legal effect

App-67

of altering and diminishing the exterior boundaries of

the Reservation. The DOI Solicitor’s opinion dated

October 26, 2011 (2011 DOI Solicitor’s Opinion)

analyzes the exterior boundaries of the Reservation,

including a detailed analysis of the 1905 Act, and

concludes that the 1905 Act did not diminish the

exterior boundaries of the Wind River Indian

Reservation.

This document provides the legal analysis in

support of EPA’s determination, based on all pertinent

information, including the 2011 DOI Solicitor’s

Opinion, that the 1905 Act did not effect a

diminishment of the exterior boundaries of the

Reservation. EPA’s decision concludes that the

boundaries of the Reservation encompass and include,

subject to the proviso below concerning the 1953 Act,

the area set forth in the 1868 Treaty of Fort Bridger,

15 Stat. 673 (1868), less those areas conveyed by the

Tribes under the 1874 Lander Purchase Act, 18 Stat.

291 (1874), and the 1897 Thermopolis Purchase Act,

30 Stat. 93 (1897), and including certain lands located

outside the original boundaries that were added to the

Reservation under subsequent legislation in 1940, 54

Stat. 628 (1940). On December 4, 2013, the Tribes

requested that EPA not address the lands described in

Section 1 of a statute enacted in 1953, 67 Stat. 592

(1953) (1953 Act) until such time, if any, that they

notify EPA otherwise. This opinion, therefore, does not

analyze those lands in detail nor are they included in

the geographic scope of approval for this TAS decision.

App-68

A. History of the Wind River Indian Reservation

1.

Eastern

Shoshone

Tribe

Establishment of the Reservation

and

The Shoshone Indian Tribe’s occupation of the

Wind River country well preceded the formal

establishment of the Wind River Indian Reservation

by treaty in 1868. The Shoshone Tribe historically

hunted game and gathered food throughout an 80million acre territory that now comprises the States of

Colorado, Idaho, Nevada, Utah and Wyoming.

Northwestern Bands of Shoshone Indians v. United

States, 324 U.S. 335, 340 (1945).1 The California Gold

Rush and the Mormon westward migration in the

1840’s brought an increasing number of travelers and

settlers to this territory. The influx of settlers led to

competition for game and resulted in inevitable

conflicts among the settlers and Indians, impeding

travel and settlement as well as the overland mail

system and the establishment of new telegraph lines.

Id. at 341. By the time of the outbreak of the Civil War,

the Commissioner of Indian Affairs and other agencies

of the United States recognized a need for peaceful

travel and settlement in the area, and the bands of

Shoshone Tribes were reportedly inclined towards

accepting support on limited reservations. Id. The

1862 Homestead Act, 12 Stat. 392 (1862) further

encouraged settlement in western territories. The

United States negotiated a series of treaties with the

1 See also Northwestern Bands of Shoshone Indians v. United

States, 95 Ct. Cl. 642 (1942); United States v. Shoshone Tribe of

Indians, 304 U.S. 111 (1938); Shoshone Tribe of Indians v. United

States, 299 U.S. 476 (1937); Shoshone Tribe of Indians v. United

States, 85 Ct. Cl. 331 (1937).

App-69

various bands of Shoshone, including the 1863 Treaty

of Fort Bridger, 18 Stat. 685 (1863) with the Eastern

Shoshone. This (First) Fort Bridger Treaty between

the United States and the Eastern Shoshones

established routes for safe travel for people emigrating

west as well as for communications and railroad

passage, and described the boundaries of “Shoshonee

country” as an area encompassing approximately

44,672,000 acres of land located in what are now the

States of Colorado, Utah, Idaho and Wyoming. See

Shoshone, 304 U.S. at 113.

The end of the Civil War in 1865 led to further

western migration and the United States negotiated a

new treaty that would restrict the area of Shoshone

occupancy. In the Second Fort Bridger Treaty of 1868,

the Tribe ceded to the United States its right to occupy

the 44 million acres described in the First Fort Bridger

Treaty in exchange for exclusive occupancy of a far

smaller Reservation in the Wind River region. The

1868 Treaty set apart a 3,054,182-acre Reservation for

“the absolute and undisturbed use and occupation of

the Shoshonee Indians . . . and the United States now

solemnly agrees that no persons except those herein

designated and authorized so to do ... shall ever be

permitted to pass over, settle upon, or reside in the

territory described in this article for the use of said

Indians ....” 15 Stat. 673, 674. See also Shoshone, 304

U.S. at 113. Thus, the Wind River Indian Reservation

was established by the Second Fort Bridger Treaty of

1868, among the United States, the Eastern Band of

the Shoshonee and the Bannack Tribe of Indians.2

2 The Wind River Indian Reservation was established for the

Eastern Shoshone, while the Bannack Tribe (today formally

App-70

Article 2 of the 1868 Treaty set forth the Wind River

Indian Reservation boundaries:

Commencing at the mouth of Owl creek and

running due south to the crest of the divide

between the Sweetwater and Papa Agie

Rivers; thence along the crest of said divide

and the summit of Wind River Mountains to

the longitude of North Fork and up its

channel to a point twenty miles above its

mouth; thence in a straight line to

headwaters of Owl creek and along middle

channel of Owl creek to place of beginning.

15 Stat. 673, 674.

The treaty further states “no treaty for the cession

of any portion of the reservations herein described ...

shall be of any force or validity as against the said

Indians, unless executed and signed by at least a

majority of all the adult male Indians occupying or

interested in the same; and no cession by the tribe

shall be understood or construed in such manner as to

deprive without his consent, any individual member of

the tribe of his right to any tract of land selected by

him, as provided in Article VI of this treaty.” Id. at

676.

1871 marked the end of the formal treaty-making

era, although existing treaties continued to be valid.

Indian Appropriation Act, 16 Stat. 544 (1871). The

United States continued to establish reservations by

Congressional

Acts

and

Executive

Orders.

known as the Shoshone-Bannock Tribes of the Fort Hall

Reservation) selected a Reservation in southeastern Idaho. See

Swim v. Bergland, 696 F.2d 712, 714 (9th Cir. 1983).

App-71

Agreements between the United States and Indian

tribes regarding land cessions had to be approved by

both houses of Congress rather than established by

treaties ratified by just the Senate. See Felix Cohen,

Handbook of Federal Indian Laws § 1.04 at 76

(2005 ed.) (Cohen’s Handbook).

2.

The 1874 Lander Purchase

In 1872, Congress authorized the President to

negotiate with the Shoshone Indians for the

relinquishment of lands in the southern portion of the

Reservation in exchange for lands to the north. 17

Stat. 214 (1872). On September 26, 1872, Felix

Brunot, commissioner for the United States, entered

into an agreement with the Shoshone Indians for

lands within the southern portion of the Reservation

where white settlers were actively mining. Rather

than an exchange for additional lands to the north, the

Shoshone Tribe agreed to relinquish approximately

700,000 acres for a fixed sum payment of $25,000 to be

paid over five years for the purchase of cattle and a

$500 annual payment to the Chief for five years.

Report of the Secretary of the Interior at 512 (Oct. 31,

1872) (EPA-WR-001735-37). On December 15, 1874,

Congress ratified the agreement, also known as the

“Lander Purchase.” 18 Stat. 291 (1874). The purpose

of the 1874 Lander Purchase Act, as expressly set

forth in the statute, was to sell lands south of the 43rd

parallel for $25,000 in order “to change the southern

limit of said reservation.” Id. at 292.

Considering the express language of the statute to

change the Reservation boundaries, the fixed sum

certain manner of payment and the fact that the

statute made no provision for any retained Indian

App-72

interest in the lands sold, there is no dispute that by

passing the 1874 Lander Purchase Act, Congress

intended to alter and diminish the southern boundary

of the Reservation to exclude those lands.

3.

1878 Northern Arapaho Tribe

The Northern Arapaho Tribe of Wyoming is one of

four groups of Arapaho that originally occupied parts

of Colorado, Kansas, Montana, Nebraska, and

Wyoming. See Loretta Fowler, Arapaho, in HANDBOOK

OF NORTH AMERICAN INDIANS VOLUME 13, PART 2 OF 2,

840-41 (Raymond J. DeMallie, vol. ed., 2001). By 1811,

the Arapaho occupied an area that ranged primarily

along the North Platte River and as far south as the

Arkansas River. Id. Buffalo hunting was a primary

means of subsistence and of cultural significance to

the Tribe. Id. at 842, 847-48. In 1851, the Arapaho was

one of a number of tribes that signed the Treaty of Fort

Laramie. 11 Stat. 749 (1851). Pursuant to the 1851

Treaty, the Arapaho and Cheyenne Tribes’ territory

encompassed areas of southeastern Wyoming,

northeastern Colorado, western Kansas and western

Nebraska. Fowler, supra at 842. Despite the 1851

treaty, entry by settlers began to occur in Arapaho

territory. Id. As a result of game disturbance and other

factors, the Northern Arapaho Tribe began to

withdraw north of the Platte River into Wyoming and

Montana. Id. In 1868, the Northern Arapaho Tribe

and the United States entered into another treaty

whereby the Tribe agreed to accept either some

portion of Medicine Lodge Creek, an area on the

Missouri River near Ft. Randall, or the Crow Agency

near Otter Creek on the Yellowstone River. 15 Stat.

655, 656 (1868). Between 1870 and 1877, the Northern

App-73

Arapaho Tribe was not settled upon any defined

reservation and continued to negotiate with the

United States for a separate reservation. Fowler,

supra at 843. In 1878, following a visit to Washington,

D.C. by a delegation of the Northern Arapaho Tribe,

as recognized by the United States executive branch

the Northern Arapaho Tribe settled on the Wind River

Indian Reservation. Id.

4.

1887 General Allotment Act and 1890

Wyoming Statehood

In 1887, Congress passed the General Allotment

Act or Dawes Act, which, among other provisions,

authorized the federal government to allot tracts of

reservation land (typically 160-acre lots) to individual

tribal members and, with tribal consent, sell the

surplus lands to non-Indian settlers. General

Allotment Act of 1887, 24 Stat. 388 (1887), as amended

26 Stat. 794 (1891). As described by Felix Cohen, an

expert on Indian law and policy, “[tlribal members

under the Act surrendered their undivided interest in

the tribally owned common or trust estate for a

personally assigned divided interest, generally held in

trust for a limited number of years, but ‘allotted’ to

them individually. . . . Reservations became

checkerboards as the sale of surplus land to whites

isolated individual Indian allotments.” Cohen’s

Handbook at 77-78.

Wyoming was admitted to the Union as the 44th

State on March 27, 1890. Wyoming Enabling Act, 26

Stat. 222, ch. 664 (1890). With regard to Indian tribes,

the State Constitution includes the following:

The people inhabiting this state do agree and

declare that they forever disclaim all right

App-74

and title to the unappropriated public lands

lying within the boundaries thereof, and to all

lands lying within said limits owned or held

by any Indian or Indian tribes, and that until

the title thereto shall have been extinguished

by the United States, the same shall be and

remain subject to the disposition of the

United States and that said Indian lands

shall remain under the absolute jurisdiction

and control of the congress of the United

States . . .

Wyo. Const. Art. 21, § 26

5.

The 1891 and 1893 Failed Agreements

On March 3, 1891, Congress passed an

Appropriations Act that included a provision, “[t]o

enable the Secretary of the Interior in his discretion to

negotiate with any Indians for the surrender of

portions of their respective reservations, any

agreements thus negotiated being subject to

subsequent ratification by Congress, $15,000, or so

much thereof as may be necessary.” 26 Stat. 989, 1009

(1891). Pursuant to this Act, the Secretary of the

Interior appointed a commission to negotiate with the

Indians of the Wind River or Shoshone Reservation for

the “surrender of such portion of their reservation as

they may choose to dispose of . . .” Instruction of July

14, 1891, reprinted in H.R. DOC. NO. 52-70, at 42

(1892) (EPA-WR-000266). The commission negotiated

a proposed cession of an area which the Tribes agreed

to, “cede, convey, transfer, relinquish, and surrender,

forever and absolutely . . . all their right, title and

interest, of every kind and character in and to the

lands, and the water rights appertaining

App-75

thereunto . . . .” Articles of agreement, October 2,1891,

reprinted in H.R. DOC. No. 52-70, at 29 (1892) (EPAWR-000259) (1891 Articles of Agreement). The lands

at issue generally included the area north of the Big

Wind River, together with a strip on the eastern side

of the Reservation.3 The commission has made an

unsuccessful effort to secure a strip of land of about

60,000 acres on the southern border of the

Reservation. Id. at 26. In consideration for the land,

the United States proposed to pay the Tribes

$600,000. Id. at 30. The agreement expressly stated it

“shall not be binding upon either party until ratified

by the Congress of the United States.” Id. at 32.

Congress did not ratify the 1891 agreement.

In 1892, pursuant to a similar Appropriations Act

provision, the Secretary of the Interior authorized

another commission to negotiate with the Tribes. 27

Stat. 120, 138 (1892). In 1893, the commission

attempted to reach an agreement with the Tribes,

proposing to purchase all Reservation land lying north

of the Big Wind River, as well as land lying south and

east of the Popo Agie/Little Wind River and along the

3 1891 Articles of Agreement, H.R. Doc. No. 52-70, at 29 (EPA-

WR-000259). The land proposed to be ceded included the portion

of the Reservation lying north and east of the following lines:

“[b]eginning in the mid-channel of the Big Wind River at a point

where the river crosses the western boundary line of the

reservation; thence in a southeasterly direction, following the

mid-channel of the Big Wind River to a point known as the Wood

Flat Crossing, thence in a line due east to the eastern boundary

of the reservation; then, beginning where the line run due east

from Wood-Flat Crossing intersects the Big Horn River, thence

in a line due south to the southern boundary of the reservation.”

Id.

App-76

southern border of the entire Reservation, in exchange

for $750,000.4 The Tribes refused to consider any

cession of lands on the southern portion of the

Reservation, rejecting three different proposals, and

ultimately no agreement was reached. H.R. DOC. NO.

53-51, at 4-6 (1894) (EPA-WR-000280-82).

6.

The 1897 Thermopolis Purchase

In 1896, the United States negotiated with the

Tribes for the sale of approximately 55,040 acres of

land at and around the Big Horn Hot Springs, near the

present town of Thermopolis.5 On April 21, 1896,

United States Indian Inspector James McLaughlin

entered into an agreement with the Tribes known as

the “Thermopolis Purchase.” Pursuant to the

agreement, the lands at issue were to be “set apart as

a national park or reservation, forever reserving the

said Big Horn Hot Springs for the use and benefit of

the general public, the Indians to be allowed to enjoy

The commission’s first proposal involved the following

boundaries: “Commencing at a point in the mid-channel of the

Big Wind River, where the same crosses the west boundary line

of the reservation, thence down the mid-channel of said Big Wind

River to the confluence of said Big Wind River with the Popo Agie

River; thence up the mid-channel of said Popo Agie river to its

intersection with the north boundary line of township 2 south,

range 3 east, thence west, with said line, to the western boundary

line of said reservation; thence north on said western boundary

line to the point or place of beginning.” H.R. Doc. No. 53-51, at 4

(EPA-WR-000280). After this first proposal was rejected by the

Tribes, the commissioners made two more proposals, to which the

Tribes did not agree. Id. at 4-5 (EPA-WR-000280-81).

4

5 The negotiations were conducted pursuant to the Indian

Appropriations Act of March 3, 1893, 27 Stat. 633 (1893). See S.

Doc. No. 54-247, at 11 (1896) (EPA-WR-000306).

App-77

the advantages of the convenience that may be erected

thereat with the public generally.” Articles of

Agreement (April 21, 1896), reprinted in S. DOC. NO.

54-247 (1896) at 4 (EPA-WR-000299) (1896 Articles of

Agreement). On June 7, 1897, Congress ratified the

agreement including the following provision:

For the consideration hereinafter named the

said Shoshone and Arapaho tribes of Indians

hereby cede, convey, transfer, relinquish and

surrender, forever and absolutely all their

right, title, and interest of every kind and

character in and to the lands and the water

rights appertaining thereunto [with respect

to the tract of land] embracing the Big Horn

Hot Springs . . .

30 Stat. 62, 94 (1897).

With regard to payment for the land, the Act

ratified the agreement provision that, “[i]n

consideration for the lands sold, relinquished and

conveyed” the United States would pay the Tribes

$60,000. Id. Rather than establishing the entire area

as a national park or reserve as agreed upon, the Act

provided that of the lands ceded, sold, relinquished

and conveyed to the United States, one square mile at

and about the hot springs would go to the State of

Wyoming and the remainder of the lands were

“declared to be public lands of the United States”

subject to entry under homestead and town-site laws.

Id. at 96.

Considering the express language of the statute,

the fixed sum certain manner of payment and the fact

that the Act made no provision for any retained Indian

interest in the lands sold, there is no dispute that by

App-78

passing the 1897 Thermopolis Purchase Act, Congress

intended to alter and diminish the boundary of the

Reservation to exclude those lands.

7.

The 1904 Agreement and 1905 Act

In March of 1904, U.S. Representative Frank

Mondell of Wyoming introduced H.R. 13481 to provide

for opening portions of the Reservation under

homestead, town-site, and coal and mineral land laws.

H.R. REP. NO. 58-2355, at 5 (1904) (EPA-WR-000321).

The bill was based loosely on the 1891 and 1893

negotiations but included some important differences.

For instance, as discussed in detail in Section B.3(a) of

this document, the geographic scope of the 1904 bill

was different from the earlier negotiations, enlarging

the area proposed to be opened; the 1904 bill included

significantly different cession language; the manner of

payment was completely changed so that instead of

providing for a fixed sum certain payment in

consideration of the land as proposed during the prior

negotiations, the Tribes would be paid only if and

when parcels of land were sold; and the 1904 bill

included a provision for the United States to act as a

trustee for the Tribes regarding the sale of and

payment for the lands.

The House Report on H.R. 13481 explained that

“the bill provides that the land shall be opened to entry

under the homestead, town-site, coal and mineral land

laws . . . . “ Id. at 4 (EPA-WR-000320). On April 19,

1904, Indian Inspector McLaughlin met with the

Eastern Shoshone and Northern Arapaho Tribes to

present H.R. 13481 and negotiate the terms of an

agreement. Shortly thereafter, on April 21, 1904, the

Tribes and McLaughlin entered into an agreement.

App-79

1904 Agreement, reprinted in H.R. REP. NO. 58-3700,

pt. 1 (1905) (EPA-WR-004675).6 On February 6, 1905,

a new bill, H.R. 17994, was presented to Congress to

ratify and amend the 1904 Agreement and replace

H.R. 13481. 39 Cong. Rec. H1940 (Feb. 6, 1905) (EPAWR-0010068). Representative Mondell explained that

the bill would provide for “the opening to homestead

settlement and sale under the town-site, coal-land,

and mineral-land laws of about a million and a quarter

acres in the Wind River Reservation in central

western Wyoming.” Id. at H1942. House Report

17994, with the adoption of a committee resolution,

was ultimately ratified by Congress by the Act of

March 3, 1905. 33 Stat. 1016 (1905 Act).7

Since the 1905 Act and the issue of whether it

altered and diminished the exterior boundaries of the

Wind River Indian Reservation is the focal point of the

comments objecting to the Tribes’ Reservation

boundary description, the next section includes a

detailed legal analysis of the 1905 Act, including

further discussion of the 1904 Agreement.

6 The Tribes note that only 80 out of 237 adult male members

of the Northern Arapaho Tribe actually signed the 1904

Agreement and that many who did sign would not have been

considered “adults” by the Arapahos. Tribes’ Response to

Comments Regarding the Tribes’ TAS Application at 16 (May 24,

2010), citing Letter from J. McLaughlin to the Secretary of the

Interior (Apr, 25,1904) quoted in H.R. REP. NO. 58-3700, pt. 1, at

18 (1905) (EPA-WR-004675-93).

7 H.R. REP. NO. 58-3700, pt. 1 (1905) (EPA-WR-004675-93);

H.R. REP. NO. 58-3700, pt. 2 (1905) (EPA-WR-000337-49); S. REP.

NO. 58-4263 (1905) (EPA-WR-0010048-49); H.R. REP. NO. 584884 (1905) (EPA-WR-0010050-51).

App-80

B. Legal Analysis of the 1905 Act

1.

Supreme

Court

Jurisprudence

Regarding Surplus Land Acts

The United States Supreme Court has recognized

that Congress has plenary and exclusive authority

over Indian affairs, identifying the Indian Commerce

Clause of the United States Constitution, which

empowers Congress to regulate commerce “with

foreign nations, and among the several states, and

with the Indian tribes” and the Treaty Clause as

sources of that power. See U.S. CONST., Art. I, § 8, cl.

3; Art. II, § 2, cl. 2; United States v. Lara, 541 U.S. 193,

200 (2004); Washington v. Confederated Bands and

Tribes of the Yakima Nation, 439 U.S. 463,470 (1979).

Congress has recognized the self-determination, selfreliance and inherent sovereignty of Indian tribes.

Indian Tribal Justice Act, 25 U.S.C. §§ 3601(3)

(“Congress, through statutes, treaties, and the

exercise of administrative authorities, has recognized

the self-determination, self-reliance, and inherent

sovereignty of Indian tribes”) and 3601(2) (“Congress

finds and declares that . . . the United States has a

trust responsibility to each tribal government that

includes the protection of the sovereignty of each

tribal government”). The Supreme Court has

reinforced that the “Indian sovereignty doctrine is

relevant . . . because it provides a backdrop against

which the applicable treaties and federal statutes

must be read.” McClanahan v. State Tax Comm’n, 411

U.S. 164,172 (1973). “It must always be remembered

that the various Indian tribes were once independent

and sovereign nations, and that their claim to

App-81

sovereignty long

Government.” Id.

predates

that

of

our

own

For much of the Nation’s history, treaties and

legislation made pursuant to those treaties governed

relations between the federal government and the

Indian tribes.8 The Supreme Court has held that only

Congress can alter the terms of an Indian treaty. See

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,

343 (1998). In several instances, the Court has

addressed whether particular Congressional Acts

opening Indian reservations to homesteading

(commonly called “surplus land acts”) did so while

maintaining the existing reservation boundaries or

whether the Acts also had the effect of altering and

diminishing the reservation boundaries established by

treaty. Whether a specific Congressional Act was

intended to extinguish some or all of an existing

reservation requires a case-by-case analysis. Solem v.

Bartlett, 465 U.S. 463, 468-69 (1984).

The Court has established a “fairly clean

analytical structure” for distinguishing those surplus

land acts that diminished reservations from those acts

that simply offered non-Indians the opportunity to

purchase land within established reservation

boundaries.9 Solem, 465 U.S. at 470. “The first and

governing principle is that only Congress can divest a

reservation of its land and diminish its boundaries.

Once a block of land is set aside for an Indian

8 Cohen’s Handbook at 109-11 (1982 ed.).

9 Although it was once thought that Indian consent was

necessary to diminish a reservation, it has long been held that

Congress has the power to diminish reservations unilaterally. Id.

at 470 n.11, citing Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

App-82

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. (citing United States v.

Celestine, 215 U.S. 278 (1909)). Moreover, Congress

must “clearly evince” an “intent to change boundaries”

and the evidence must be “substantial and compelling”

before diminishment will be found. Id. at 470-72.

The Supreme Court has articulated legal canons

of construction for analyzing whether a particular

Congressional Act had the effect of diminishing

reservation boundaries. The canons of construction

are rooted in the unique trust relationship between

the United States and the Indians. County of Oneida,

New York v. Oneida Indian Nation of New York, 470

U.S. 226, 247 (1985) (Oneida) (“[i]t is well established

that treaties should be construed liberally in favor of

the Indians. . . . The Court has applied similar canons

of construction in nontreaty matters”). “Relying on the

strong policy of the United States ‘from the beginning

to respect the Indian right of occupancy,’” the Court

has concluded that it “‘[c]ertainly’ would require ‘plain

and unambiguous action to deprive the [Indians] of

the benefits of that policy’. . . .”10 Throughout the

analysis of diminishment cases, courts resolve any

ambiguities in favor of the Indians, and will not lightly

10 Oneida, 470 U.S. at 247-48 (citations omitted). Generally,

courts construe Indian treaties sympathetically to Indian

interests to compensate for their unequal bargaining positions in

the treaty-making process. Carpenter v. Shaw, 280 U.S. 363, 36667 (1930); Shawnee Tribe v. U.S., 423 F.3d 1204, 1220 (10th Cir.

2005).

App-83

find diminishment. Solem, 465 U.S. at 470-72.11 While

clear congressional and tribal intent must be

recognized, the rule that “legal ambiguities are

resolved for the benefit of the Indians” is accorded “the

broadest possible scope.” DeCoteau v. District County

Court for Tenth Judicial District, 420 U.S. 425, 447

(1975). The traditional solicitude for the Indian tribes

favors the survival of reservation boundaries in the

face of opening up reservation land to settlement and

entry by non-Indians. Solem, 465 U.S. at 472.

Solem and its progeny have established a threepart test for analyzing whether a specific statute

opening a reservation to homesteading altered and

diminished a reservation’s boundaries or simply

allowed non-Indians to purchase land without

affecting the established reservation boundaries. Id.

at 470-72. First, the most probative evidence of

congressional intent is the statutory language itself.

Id. The second part of the inquiry centers on the

circumstances surrounding the passage of the surplus

land act. Id. at 471. Finally, and to a lesser extent, the

court will consider the subsequent treatment of the

area in question and the pattern of settlement. Id. at

471-72; see also Yankton, 522 U.S. at 344 (“[t]hus,

although ‘[t]he most probative evidence of

diminishment is, of course, the statutory language

used to open the Indian lands,’ we have held that we

11 See also South Dakota v. Bourland, 508 U.S. 679, 687 (1990)

(‘“[Statutes are to be construed liberally in favor of the Indians,

with ambiguous provisions interpreted to their benefit’”), quoting

County of Yakima v. Confederated Tribes and Bands of Yakima

Nation, 502 U.S. 251, 269 (1992) and Hagen v. Utah, 510 U.S.

399, 411 (1994).

App-84

will also consider ‘the historical context surrounding

the passage of the surplus land Acts,’ and to a lesser

extent, the subsequent treatment of the area in

question and the pattern of settlement there”

(citations omitted)), Hagen, 510 U.S. at 410-13.

The first prong of the analysis focuses on the

statutory language as the most probative of

Congressional intent. Although the Court has never

required a particular form of words to find

diminishment,12 “[e]xplicit reference to cession or

other language evidencing the present and total

surrender of all tribal interests strongly suggests that

Congress meant to divest from the reservation all

unalloted opened lands.” Solem, 465 U.S. at 470 (citing

DeCoteau, 420 U.S. at 444-45; Seymour v.

Superintendent, 368 U.S. 351, 355 (1962)). When such

language of cession evidencing the present and total

surrender of all tribal interests is buttressed by an

unconditional commitment from Congress to

compensate the Indian tribe for its opened land, there

is an almost insurmountable presumption that

Congress meant for the tribe’s reservation to be

diminished. See Yankton, 522 U.S. at 344 (citing

Solem, 465 U.S. at 470); see also Hagen, 510 U.S. at

411, DeCoteau, 420 U.S. at 447-48. In addition to the

language opening the land to settlement and the

manner of payment set forth in the statute, the Court

will examine other relevant statutory provisions to

discern Congressional intent. While the express

statutory language is the most probative evidence of

Congressional intent, the Supreme Court has affirmed

that it must examine “all the circumstances

12 Hagen, 510 U.S. at 411.

App-85

surrounding the opening of a reservation.” Hagen, 510

U.S. at 412.

The second part of the inquiry examines the

circumstances surrounding the passage of the specific

surplus land act. This inquiry includes consideration

of the historical context surrounding the passage of

the statute, legislative history, the manner in which

the

transaction

was

negotiated,

and

the

contemporaneous understanding of the effect of the

act. As a backdrop to this analysis, the Court has

discussed the broad historical context of the allotment

era and its effect on diminishment considerations.

“Our inquiry is informed by the understanding that,

at the turn of this century, Congress did not view the

distinction between acquiring Indian property and

assuming jurisdiction over Indian territory as a

critical one, in part because “‘the notion that

reservation status of Indian lands might not be

coextensive with tribal ownership was unfamiliar’,

Solem, 465 U.S. at 468, and in part because Congress

then assumed that the reservation system would fade

over time.” Yankton, 522 U.S. at 343. Nonetheless, the

Supreme Court has stated that it has never been

willing to extrapolate a specific congressional purpose

of diminishing a reservation in a particular case from

the general expectations of the allotment era. “Rather,

it is settled law that some surplus land acts

diminished reservations . . . and other surplus land

acts did not. . . . “ Solem, 465 U.S. at 468-69. The Court

has described that in order to discern Congressional

intent

to

diminish

based

on

surrounding

circumstances, the information must “unequivocally”

reveal

a

“widely-held,

contemporaneous”

understanding that the area would be severed from

App-86

the reservation. As summarized in Solem, “[w]hen

events surrounding the passage of a surplus land

act—particularly the manner in which the transaction

was negotiated with the tribes involved and the tenor

of legislative Reports presented to Congress—

unequivocally reveal a widely held, contemporaneous

understanding that the affected reservation would

shrink as a result of the proposed legislation, we have

been willing to infer that Congress shared the

understanding that its action would diminish the

reservation, notwithstanding the presence of

statutory language that would otherwise suggest

reservation boundaries remained unchanged.” Id. at

471. Thus, the courts review surrounding

circumstances to determine Congressional intent on a

case-by-case basis.

Third, and to a lesser extent, courts have looked

to events that occurred after the passage of a surplus

land act to determine Congressional intent.

“Congress’s own treatment of the affected areas,

particularly in the years immediately following the

opening, has some evidentiary value, as does the

manner in which the Bureau of Indian Affairs and

local judicial authorities dealt with unallotted open

lands.” Id. The Court has also recognized, on a more

“pragmatic” level, that who actually moved onto

opened reservation lands is relevant to deciding

whether a surplus land act diminished a reservation,

noting that where “non- Indian settlers flooded into

the opened portion of a reservation and the area has

long since lost its Indian character” diminishment

may have occurred. Id. “Resort to subsequent

demographic history is, of course, an unorthodox and

potentially

unreliable

method

of

statutory

App-87

interpretation.” Id. at 472, n.13. Ultimately, the Court

has stated, “[t]here are, of course, limits to how far we

will go to decipher Congress’ intention in any

particular surplus land Act. When both an Act and its

legislative history fail to provide substantial and

compelling evidence of a congressional intention to

diminish Indian lands, we are bound by our

traditional solicitude for the Indian tribes to rule that

diminishment did not take place and that the old

reservation boundaries survived the opening.” Solem,

465 U.S. at 472, (citing Mattz v. Arnett, 412 U.S. 481,

505 (1973); Seymour v. Superintendent, 368 U.S. 351

(1962)).

In conclusion, the Supreme Court has articulated

several important principles guiding the analysis of

whether a particular surplus land act altered the

boundaries of an Indian reservation established by

treaty. Since each Indian reservation has a unique

history, analysis of a particular surplus land act and

its effect on a reservation is conducted on a case-bycase basis. The Court has also established legal canons

of statutory construction that apply throughout the

analysis. Reservation diminishment is not lightly

inferred and will not be found unless analysis of the

Congressional Act at issue reveals substantial and

compelling evidence of a clear Congressional intent to

diminish the boundaries.

2.

1905 Act Language

The first prong of the Court’s three-part analysis

to determine whether a reservation is diminished by a

given surplus land act focuses on the statutory

language as the most probative evidence of

Congressional intent. Solem, 465 U.S. at 470. Based

App-88

on the “strong policy of the United States from the

beginning to respect the Indian right of occupancy”

established by treaties and historical relations

between the United States and Indian tribes, the

Supreme Court has held that any finding of

diminishment must be supported by “plain and

unambiguous” congressional intent to deprive the

Indians of the benefits of that policy.13 While the

Supreme Court has never required a particular form

of words to find diminishment,14 where a surplus land

act contains “both explicit language of cession,

evidencing ‘the present and total surrender of all

tribal interests’ and a provision for a fixed-sum

payment, representing ‘an unconditional commitment

from Congress to compensate the Indian tribe for its

opened land,’” there is a nearly conclusive or almost

insurmountable presumption that Congress meant for

the tribe’s reservation to be diminished. See Yankton,

522 U.S. at 344 (citing Solem, 465 U.S. at 470, Hagen,

510 U.S. at 411, DeCoteau, 420 U.S. at 447-48). In

addition to the language opening the land to

settlement and manner of payment set forth in the

statute, the Court will examine other relevant

statutory provisions to discern Congressional intent.

a.

Operative Language

The 1905 Act’s operative language opening the

Wind River Indian Reservation to homesteading in

Article I provides that the Tribes “cede, grant, and

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

interest which they may have to all the lands

13 Oneida, 470 U.S. at 247 (citations omitted).

14 Hagen, 510 U.S. at 411.

App-89

embraced within the said reservation” except lands

described by the statute, generally lands south of the

mid-channel of the Big Wind River and west of the

mid-channel of the Popo Agie River. 33 Stat. 1016.

Article I also permitted those Indians who had

previously selected a tract within “the portion of said

reservation hereby ceded” to “have the same allotted

and confirmed to him or her” or to select other lands

“within the diminished reserve in lieu thereof at any

time before the lands hereby ceded shall be opened for

entry.” Id.

The 1905 Act must be analyzed in consideration

of this specific statute and the circumstances

underlying its passage. Solem, 465 U.S. at 468-69. The

history of other Congressional Acts affecting the lands

of this Reservation subsequent to its establishment by

the 1868 Treaty is also relevant to the analysis. The

Supreme Court has recognized that differences in

operative language in prior statutes regarding the

same Reservation are important to understanding

Congressional intent with regard to the specific Act at

issue. For example, in Seymour, the Court contrasted

the operative language in an 1892 Act, which was held

to diminish the northern half of the Colville

Reservation, from that in a 1906 Act, which the Court

held did not diminish the southern half of the

Reservation. Seymour, 368 U.S. at 355-56.

On the Wind River Indian Reservation, between

the Second Fort Bridger Treaty of 1868 and the 1905

Act, there were two Congressional Acts affecting the

Reservation lands. In contrast to the 1905 Act, the

operative language in each of these statutes, together

with the fixed sum certain payment for the lands as

App-90

well as the surrounding circumstances and

subsequent treatment of the lands, clearly and

unambiguously established Congressional intent to

diminish the boundaries of the Reservation. For

example, the purpose of the 1874 Lander Purchase

Act, as expressly set forth in the statute, was to alter

and diminish the southern boundary of the

Reservation in exchange for a sum certain payment of

$25,000:

[W]hereas, previous to and since the date of

said treaty, mines have been discovered, and

citizens of the United States have made

improvements within the limits of said

reservation, and it is deemed advisable for

the settlement of all difficulty between the

parties, arising in consequence of said

occupancy, to change the southern limit of

said reservation.

18 Stat. 291, 292 (1874) (emphasis added).

Further evidencing Congressional intent to alter

the boundaries, Article III of the 1874 statute refers to

the line north of the ceded lands as “the southern line

of the Shoshone reservation.” Id.

Similarly, in 1897, the Thermopolis Purchase Act

included language evincing clear Congressional intent

to remove the tract of land embracing the Big Horn

Hot Springs from the Reservation in exchange for

$60,000:

For the consideration hereinafter named the

said Shoshone and Arapaho tribes of Indians

hereby cede, convey, transfer, relinquish and

surrender, forever and absolutely all their

right, title, and interest of every kind and

App-91

character in and to the lands and the water

rights appertaining thereunto . . .”

30 Stat. 93, 94 (1897) (emphasis added).

In contrast to the clear operative language and

fixed sum certain payment expressing intent to

absolutely sever certain lands from the Reservation

used in the 1874 Lander Purchase Act and the 1897

Thermopolis Purchase Act, Congress chose to use

significantly different language and manner of

payment when it opened the Reservation to

settlement in 1905. The operative language of the

1905 Act states that the Tribes, “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.” 33 Stat. 1016.

Unlike the 1897 Thermopolis Purchase Act, in the

1905 Act, Congress omitted language that would

“convey” or “surrender” “forever and absolutely” all

their right, title and interest “of every kind and

character in and to the lands.”15 Likewise, in contrast

to the 1874 Lander Purchase Act, the 1905 Act does

not include express language to “change the southern

It is also important to note that James McLaughlin

represented the United States in negotiating both the 1896

agreement that led to the Thermopolis Purchase Act of 1897 and

the 1904 agreement that led to the 1905 Act. As McLaughlin

later described, “the two agreements [1896 Thermopolis

Agreement and the 1904 agreement] are entirely distinct and

separate from each other, and [under the 1904 agreement] the

government simply acted as trustee for disposal of the land north

of the Big Wind River.” Minutes of Council of Inspector

McLaughlin with the Shoshone and Arapahoe Indians of the

Wind River Reservation, Wyoming at Fort Washakie, Wyoming,

at 5 (Aug. 14, 1922) (EPA-WR-001681).

15

App-92

limit of said reservation” or to establish a new

“southern line of the Shoshone reservation.” Rather,

the 1905 Act refers to the lands at issue as “embraced

within the said reservation.” Id. (emphasis added). The

fact that in 1905 Congress retreated from the clear

statutory language and intent found in previous

statutes addressing the same Reservation, and

referenced the Reservation as continuing apart from

land sales, provides strong evidence that Congress did

not intend to effect the same absolute diminishment of

the lands at issue in the 1905 Act.16

Furthermore, as noted in the 2011 DOI Solicitor’s

Opinion, the 1905 Act does not include language

designating the opened lands as “public domain,”

terminology the Supreme Court has found to indicate

Congressional intent inconsistent with reservation

status. Hagen, 510 U.S. at 414, citing Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584, 589 and n.5 (1977). For

example, the 1897 Thermopolis Purchase Act stated

that the majority of the opened lands “are hereby

declared to be public lands of the United States,

subject to entry, however, only under the homestead

and townsite laws of the United States.” 30 Stat. 93,

96 (1897). By contrast, the legislative history of the

1905 Act indicates that Congress understood the land

16 In addition, the 1891 Agreement that was never ratified by

Congress stated that the Tribes would, “cede, convey, transfer,

relinquish and surrender, forever and absolutely . . . all their

right title and interest, of every kind and character in and to the

lands, and the water rights appertaining thereunto . . . .” 1891

Articles of Agreement, H.R. Doc. No. 52-70, at 29 (EPA-WR000259). This language is similar to the operative language in

the 1897 Thermopolis Purchase Act discussed above, but was not

included in the 1905 Act.

App-93

at issue would not be made part of the public domain

due to the continuing Tribal interest in the opened

lands: “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 . . .”

39 Cong. Rec. H1945 (Feb. 6, 1905) (EPA-WR0010073) (statement of Rep. Marshall).

In comparison to the earlier Congressional Acts

addressing areas of land on this Reservation, the 1905

Act is devoid of express language clearly indicating

Congressional intent to change the boundary of the

Reservation. As the Supreme Court observed in Mattz,

“Congress has used clear language of express

termination when that result is desired.” Mattz, 412

U.S. at 505, n.22, citing as examples: 15 Stat. 221

(1868) (“the Smith River reservation is hereby

discontinued”); 27 Stat. 63 (1892) (“and is hereby,

vacated and restored to the public domain”); and 33

Stat. 218 (1904) (“the reservation lines of the said

Ponca and Otoe and Missouria Indian reservations be,

and the same are hereby, abolished”).

Under the 1905 Act, the Tribes agreed to “cede,

grant and relinquish to the United States all right,

title and interest” in certain lands “embraced within”

the Wind River Indian Reservation. 33 Stat. 1016.

This grant of right, title and interest to the United

States was necessary for the United States to be able

to transfer clear title to prospective homesteaders.

However, to achieve the purpose of opening the lands

to settlement, it was not necessary, nor did the express

App-94

language of the Act indicate intent, to alter the

exterior boundaries of the Reservation.17

Article I also contains phrases indicating

Congressional understanding that the 1905 Act would

allow for settlement upon lands within an existing

Reservation. For example, the operative language

refers to lands “embraced within the said reservation”

and the allotment language refers to individuals who

have selected a tract of land “within the portion of said

reservation hereby ceded.” The operative language is

properly interpreted to reference a cession of land and

not of reservation status, and both phrases indicate an

understanding and intent that the lands ceded were

on a “portion” of a larger, existing Reservation—not

that they were severed from the Reservation. The

1905 Act does not include the type of language the

United States knew how to use, had in fact used in

17 The U.S. Court of Appeals for the 8th Circuit has held that,

“cede, surrender, grant and convey to the United States all their

claim, right, title and interest . . . ” language of a 1904 surplus

land Act, standing alone, did not evidence a clear congressional

intent to disestablish the Spirit Lake Reservation. United States

v. Grey Bear, 828 F.2d 1286,1290 (8th Cir. 1987), vacated in part

on other grounds on rehearing en banc, 683 F.2d 572 (8th Cir.

1988), cert. denied, 493 U.S. 1047 (1990). Recognizing that

similar statutory language was present in at least three cases in

which the Supreme Court found diminishment or

disestablishment (Oregon Dept. of Fish and Wildlife v. Klamath

Indian Tribe, 473 U.S. 753 (1985), Rosebud and DeCoteau), the

court stated, “[a] careful reading of these cases, however, reveals

that the Court did not rely solely upon this language of cession in

reaching its conclusions. It also considered other important

factors such as payment of a lump sum upon surrender of the

lands, express agreement by the tribe of its intent to disestablish

the reservation, and surrounding circumstances.” Id. at n.5.

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earlier Congressional Acts and an agreement with

respect to this specific Reservation, and could have

easily inserted into the 1905 Act if the intent was to

alter the boundary and sever the lands forever and

absolutely from the Reservation. Similar to the

situation in Mattz, “Congress was fully aware of the

means by which termination could be effected. But

clear termination language was not employed in the

1892 Act. This being so, we are not inclined to infer an

intent to terminate the reservation.” Mattz, 412 U.S.

at 504.

Commenters18 assert that the operative language

in Article I and the language at the beginning of

Article II, “[i]n consideration of the lands ceded,

granted, relinquished, and conveyed by Article I of this

agreement . . .” is indistinguishable from the language

the Supreme Court held was “precisely suited” to

disestablishment in DeCoteau.19 Such limited

comparisons, however, fail to account for key

differences between the two statutes and their distinct

circumstances.

18 Throughout the document, the term “Commenters” refers to

any comments received when EPA provided an opportunity for

appropriate governmental entities and the public to comment on

the Tribes’ description of the Reservation boundaries. Comments

can be found in the EPA administrative record at EPA-WR004031-004554R.

State of Wyoming, Office of the Attorney General,

“Comments in Response to the Eastern Shoshone and Northern

Arapaho Tribes of the Wind River Reservation Statement of

Legal Counsel Regarding the Tribes’ Authority to Regulate Air

Quality and Treatment as a State Application,” June 9, 2009 at

20-21 (State Comments).

19

App-96

First, the Supreme Court has reinforced that it is

improper to assume that “similar language in two

treaties between different parties has precisely the

same meaning” and that individualized “review of the

history and the negotiations of the agreement is

central to the interpretation of treaties.” Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172,

202 (1999); see also United States v. Webb, 219 F.3d

1127, 1133 (9th Cir. 2000); Yankton Sioux Tribe v.

Gaffey, 188 F.3d 1010, 1020 (8th Cir. 1999). Along the

same lines, whether a specific Congressional Act was

intended to extinguish some or all of an existing

reservation requires an analysis specific to that

statute and reservation. Solem, 465 U.S. at 468-69.

Thus, the commenter’s comparison to the Lake

Traverse surplus land act analyzed in DeCoteau is

substantially less relevant than the discussion above

comparing the operative language in the previous

Thermopolis and Lander Purchase Acts to that within

the 1905 Act, since those particular statutes involve

the Wind River Indian Reservation.

Secondly, EPA notes that the term “convey” is not

in the 1905 Act’s operative language as was the case

in DeCoteau. Rather, the term “conveyed” appears in

Article II of the 1905 Act addressing the manner of

payment. The Supreme Court has explained that

terms found outside the operative language of a

surplus land act are of less importance in addressing

the diminishment question. For instance, in

discussing the Court’s non-diminishment finding in

Solem despite statutory language granting the

Indians permission to harvest timber on the opened

lands “as long as the lands remained in the public

domain,” the Hagen court noted, “the reference to the

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public domain did not appear in the operative

language of the statute opening the reservation lands

for settlement, which is the relevant point of reference

for the diminishment inquiry.” Hagen, 510 U.S. at 413.

Thus, the term “conveyance” is not contained within

the 1905 Act operative language opening the lands to

settlement and as such, is distinguishable from

DeCoteau.

Third, the Supreme Court in DeCoteau relied

heavily not on the operative language alone, but on the

fact that it was coupled with a fixed sum certain

payment provision in finding that the Lake Traverse

Reservation was disestablished.20 No such payment

exists in the 1905 Act.

Finally, the Supreme Court has consistently held

that there is no set formula for assessing whether the

operative language of a surplus land act supports a

diminishment finding. As discussed above, the 1905

Act includes language that was necessary to allow the

United States to subsequently transfer clear title to

prospective homesteaders. However, and especially

considering the specific statutory history pertinent to

this Reservation, the 1905 Act does not include

operative language that would support a finding of

“The negotiations leading to the 1889 Agreement show

plainly that the Indians were willing to convey to the

Government, for a sum certain, all of their interest in unallotted

lands.” DeCoteau, 420 U.S. at 445-46 (emphasis added). “This

language is virtually indistinguishable from that used in other

sum certain, cession agreements . . . .” Id. (emphasis added). We

would also note that in the Yankton Sioux case, the Supreme

Court articulated that it was both the cession language and the

sum certain manner of payment that was “precisely suited” for

diminishment. Yankton, 522 at 791-92.

20

App-98

clear and unambiguous intent to alter and diminish

the boundaries of the Wind River Indian Reservation.

b.

Manner of Payment

In addition to the specific language opening a

reservation to settlement, the Supreme Court’s

analysis focuses on the manner of payment

established by the statute as a key indicator of

Congressional intent. Where a surplus land act

contains both explicit language of cession evidencing a

present and total surrender of all tribal interests, and

an “unconditional commitment from Congress to

compensate the Indian tribe for its opened land,” there

is an almost insurmountable presumption that

Congress meant for the tribe’s reservation to be

diminished. Yankton, 522 U.S. at 344. The Court has

also noted that while a provision for definite payment

can provide additional evidence of diminishment, the

lack of such a provision does not necessarily lead to

the contrary conclusion. See Rosebud, 430 U.S. 584,

598 n.20.

Article II of the 1905 Act establishes the manner

of payment in consideration for the lands ceded:

In consideration of the lands ceded, granted,

relinquished, and conveyed by Article I of this

agreement, the United States stipulates and

agrees to dispose of the same as hereinafter

provided, under the provisions of the

homestead, town-site, coal, and mineral land

laws, or by sale for cash, as hereinafter

provided, at the following prices per acre...

33 Stat. 1016.

App-99

Generally, the statute then describes the following

timeframe and payment amounts for the years

following the passage of the Act:

•

•

•

•

Within two years from opening, lands entered

under the homestead law shall be paid for at

the rate of $1.50 per acre;

Within the next three years (between two and

five years after opening), lands entered under

the homestead law shall be paid for at the rate

of $1.25 per acre;

Within the next three years (between five to

eight years after opening), lands shall be sold

to the highest bidder at not less than $1.00 per

acre;

After eight years, lands may be sold to the

highest bidder without a minimum price.

Id. at 1016-17.

Clearly this provision does not constitute a fixed

sum certain in consideration for the land, but

establishes a schedule to pay the Tribes various rates

and ultimately an indeterminate sum if and when

lands were sold. Article II concludes, “and the United

States agrees to pay the said Indians the proceeds

derived from the sales of said lands, the amount so

realized to be paid to and expended for said Indians in

the manner hereinafter provided.” Id. at 1017

(emphasis added). In contrast to both the Lander

Purchase Act (fixed sum certain payment of $25,000)

and the Thermopolis Purchase Act (fixed sum certain

payment of $60,000), under the 1905 Act, the United

States’ financial commitment in consideration for the

lands was to pay the Tribes an indeterminate amount

from the proceeds of sales to prospective buyers.

App-100

Article II does not establish a fixed sum certain

payment, nor do any Commenters assert that it does.

This interpretation is also consistent with the

legislative history of the Act21 and Indian Inspector

McLaughlin’s statement to the Tribes that the United

States would not offer a fixed sum certain payment to

the Tribes in exchange for the lands:

Several agreements with tribes of Indians

that provided for a lump sum

This text is long and has been trimmed here. Open the source document for the complete record.