Respondents Brief — Northern Arapaho Tribe, et al., Petitioners v. Wyoming, et al.

Supreme Court briefMay 18, 2018

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Nos. 17-1159 & 17-1164

In the

Supreme Court of the United States

♦

NORTHERN ARAPAHO TRIBE,

Petitioner,

STATE OF WYOMING, ET AL.,

Respondents.

♦

EASTERN SHOSHONE TRIBE,

Petitioner,

STATE OF WYOMING, ET AL.,

Respondents.

♦

On Petition For Writs Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

♦

RESPONDENT WYOMING FARM BUREAU

FEDERATION’S BRIEF IN OPPOSITION

♦

WILLIAM PERRY PENDLEY

Counsel of Record

DAVID C. MCDONALD

Mountain States Legal Foundation

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wppendley@mountainstateslegal.com

dmcdonald@mountainstateslegal.com

Counsel for Respondent

QUESTION PRESENTED

Whether Congress clearly evinced an intent to

diminish the Wind River Indian Reservation in

Wyoming.

PARTIES TO THE PROCEEDINGS

The Wyoming Farm Bureau Federation and the

State of Wyoming were Petitioners in the Tenth

Circuit proceeding below.

The United States Environmental Protection

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

Administrator of the United States Environmental

Protection Agency; and Doug Benevento, in his official

capacity as Region 8 Administrator of the United

States Environmental Protection Agency were

Respondents in the Tenth Circuit proceeding below.

Fremont County, Wyoming, and the City of

Riverton, Wyoming were Intervenors in the Tenth

Circuit proceeding below.

The Northern Arapaho Tribe and the Eastern

Shoshone Tribe were Respondent-Intervenors in the

Tenth Circuit proceeding below.

CORPORATE DISCLOSURE STATEMENT

Respondent Wyoming Farm Bureau Federation

(“Respondent”) is a non-profit trade association.

Respondent certifies that it is privately held, has no

parent corporation, and has never issued any public

stock, and, thus, no publicly held company owns 10

percent or more of its stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..............................

PARTIES TO THE PROCEEDINGS ..............

CORPORATE DISCLOSURE

STATEMENT ..................................................

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

RESPONSE IN OPPOSITION TO

CERTIORARI ..................................................

INTRODUCTION ............................................

SUMMARY OF THE ARGUMENT ................

REASONS FOR DENYING THE

PETITION .......................................................

II.

THE DECISION BELOW DOES

NOT CONFLICT WITH THE

EIGHTH CIRCUIT’S DECISION IN

U.S. V. GREY BEAR ............................

THE DECISION BELOW DOES

NOT CONLFICT WITH THIS

COURT’S PRECEDENT ......................

Ash Sheep Co. v. United States

Is a Rarely Cited Decision

Based on Old Law That This

Court Has All But Overruled ....

The Tenth Circuit’s Opinion is

Consistent with a Long Line of

This Court’s Cases .....................

THIS CASE PRESENTS NO NOVEL

FACTS OR LEGAL ARGUMENTS

AND DOES NOT WARRANT THIS

COURT’S INTERVENTION ................

CONCLUSION ................................................

III.

TABLE OF AUTHORITIES

CASES

Page

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

(1920) ..........................................................

8–10

DeCoteau v. District County Court for the

Tenth Judicial District, 420 U.S. 425

(1975) ..........................................................

11, 13

Hagan v. Utah, 510 U.S. 399 (1994) ...............

7, 12

Nebraska v. Parker, 136 S. Ct. 1072 (2016)....

4, 12

Rosebud Sioux Tribe v. Kneip,

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

Solem v. Bartlett, 465 U.S. 463 (1984) ............ passim

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1997) ....................................

10, 11

United States v. Grey Bear, 828 F.2d 1286

(8th Cir. 1987) ............................................

2–7

STATUTES

Act of April 27, 1904, 33 Stat. 321–22 ............

33 Stat. 352 (1904) ..........................................

Act of June 25, 1948, 62 Stat. 757

(codified at 18 U.S.C. § 1151).....................

RULES

Sup. Ct. R. 10 ...................................................

OTHER AUTHORITIES

S. Shapiro, et al., Supreme Court Practice §

5.12(c)(3) (10th ed. 2013) ...........................

RESPONSE IN OPPOSITION TO CERTIORARI

Respondent Wyoming Farm Bureau Federation

(hereinafter “Respondent”) respectfully requests that

this Honorable Court deny the petitions for writs of

certiorari submitted by the Northern Arapaho and

Eastern Shoshone Tribes in Dockets numbered 171159 and 17-1164. References to the Eastern

Shoshone Tribe’s Petition will be cited as “EST Pet.”

References to the Eastern Shoshone Tribe’s

Appendices will be cited as “EST App.” References to

the Northern Arapaho Tribe’s Petition will be cited as

“NAT Pet.” References to the Northern Arapaho

Tribe’s Appendices will be cited as “NAT App.”

♦

INTRODUCTION

The question of whether a Congress evinced a

clear intent to diminish a reservation is one that this

Court and others have thoroughly addressed on

multiple occasions going back more than a century.

The Tenth Circuit’s decision below fits easily within

this tradition. This issue has been litigated

extensively, and the jurisprudence is both wellestablished and widely accepted. There is simply no

reason why this Court needs to weigh in.

♦

SUMMARY OF THE ARGUMENT

The Petitions in this case do not present a

controversy that that satisfies the requirements

typically necessary for this Court to grant writs of

certiorari. First, the Tenth Circuit’s decision below

does not create a circuit split. Contrary to Petitioners’

contention that the decision below conflicts with the

Eight Circuit’s decision in United States v. Grey Bear,

828 F.2d 1286 (8th Cir. 1987), it is clearly

distinguishable. Nor does the Tenth Circuit’s decision

conflict with this Court’s precedent. Petitioners’

primary example of a conflict, Ash Sheep Co. v. United

States, 252 U.S. 159 (1920), has borne almost no

precedential weight in this Court’s jurisprudence and

was premised on law that Congress has subsequently

changed, while every other case in which this Court

has not found a clear intent to diminish a reservation

is easily distinguishable. The plain and unambiguous

language of cession found in the act of Congress at

issue in this case, combined with evidence from the

historical record, evince a clear congressional intent to

diminish the Wind River Indian Reservation. The

petitions for writs of certiorari should therefore be

denied.

♦

REASONS FOR DENYING THE PETITION

THE DECISION BELOW DOES NOT

CONFLICT

WITH

THE

EIGHTH

CIRCUIT’S DECISION IN U.S. V. GREY

BEAR

Petitioners argue that the Tenth Circuit’s

decision below conflicts with decisions made by other

circuits, focusing particularly on the Eighth Circuit’s

decision in United States v. Grey Bear, 828 F.2d 1286

(8th Cir. 1987). Grey Bear, however, is clearly

distinguishable from this case, and does not conflict

with the Tenth Circuit’s decision below.

Grey Bear dealt with the appeal of eleven

defendants charged with the murder of a man on the

Devils Lake Sioux Indian Reservation. Id. at 1288.

The defendants argued, inter alia, that their

convictions were invalid because the federal district

court in which their trial was held lacked subject

matter jurisdiction, claiming that the Reservation had

been disestablished by Congress via treaty and

statute in 1904. Id. According to Petitioners, the

Eighth Circuit’s holding that Congress had not clearly

expressed an intent to diminish the Devils Lake Sioux

Indian Reservation is in direct conflict with the Tenth

Circuit’s decision below, but, in reality, both courts

applied the same well-settled test and simply came to

different conclusions based on the differences in the

evidence presented in each case.

Petitioners’ assertion of a circuit split is

premised primarily on a mischaracterization of the

Tenth Circuit’s holding: that it “turns on its novel

reasoning that cession language, by itself, ‘can only

indicate . . . diminishment.’” NAT Pet. at 24. This of

course ignores the fact that, while the Tenth Circuit

did conclude that the 1905 act of Congress opening up

the Wind River reservation (“1905 Act”) contained

“express language of cession,” and—in keeping with

the requirements of this Court’s precedent 1—afforded

that conclusion substantial weight in coming to its

conclusion, the Tenth Circuit did not in any way limit

its analysis to the text of the 1905 Act. See NAT App.

at 16 (finding express language of cession); NAT App.

at 21–38 (analyzing the historical context of the 1905

Act and the subsequent treatment of the area).

The fact that the court in Grey Bear declared

language of cession practically identical to the

language used in the 1905 Act insufficient, standing

alone, to evince a clear congressional intent to

diminish or disestablish an Indian reservation, does

not conflict with the Tenth Circuit’s reasoning.

Contrary to Petitioners’ arguments, both courts

applied the same three-step test first articulated by

1 See 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)); Solem v. Bartlett, 465 U.S.

463, 470 (1984) (“The most probative evidence of congressional

intent is the statutory language used to open the Indian lands.

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

unalloted opened lands.”).

this Court in Solem. Both courts engaged in

substantially similar textual analyses. Both courts

recognized that no single factor in the Solem test is

dispositive, and both came to their respective

conclusions based upon holistic examinations of

statutory text, historical context, and Congress’s

subsequent treatment of the areas in dispute.

In Grey Bear, the Eighth Circuit analyzed the

language of cession Congress used in its statute

opening up the Devil’s Lake Indian Reservation. The

language stated that the Indians of the Devils Lake

Reservation:

for the consideration hereinafter

named, do hereby cede, surrender,

grant, and convey to the United States

all their claim, right, title, and interest

in and to all that part of the Devils

Lake

Indian

Reservation

now

remaining unallotted . . . . In

consideration of the land ceded,

relinquished, and conveyed by article

one of this agreement . . . the United

States stipulates and agrees to dispose

of the said lands to settlers under the

provisions of the homestead and townsite laws . . . and to pay to said Indians

the proceeds derived from the sale of

said lands . . . .

Act of April 27, 1904, ch. 1620, 33 Stat. 321–22

(emphasis added). The court found that the “language

of the Act suggests congressional intent to

disestablish the reservation boundaries,” but that the

lack of an unconditional commitment to pay for the

ceded lands and Congress’s subsequent repeated

recognition of a non-disestablished Devils Lake

Reservation meant that Congress did not manifest the

clear intent to disestablish that is necessary to

overcome “the strong presumption favoring retention

of reservation status.” Grey Bear, 828 F.2d at 1290–

91.

In this case, however, the Tenth Circuit found

that Congress did in fact make at least a partial

unconditional commitment to pay for the ceded land,

both in lump sum allocations and from proceeds of

future sales. NAT App. at 17–18. While recognizing

that this hybrid payment structure may fall short of

the “sum certain payment” that this Court held

creates “an almost insurmountable presumption that

Congress meant for the tribe’s reservation to be

diminished,” in Solem, 465 U.S. at 470–71, the Tenth

Circuit also recognized that “this presumption is not a

two-way street.” NAT App. at 18. It quotes the opinion

in Hagan v. Utah, in which this Court expressly

rejected Petitioners’ argument that a finding of

diminishment requires both language of cession and a

sum-certain commitment to pay, saying that:

[w]hile 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. 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.

510 U.S. 399, 412 (1994). The presence or absence of a

Congressional promise of sum-certain payment—like

the presence or absence of language of cession,

evidence from legislative history, and Congress’s

subsequent treatment of the area—is but one of

several factors courts must consider in making

determinations of this kind.

While the Eighth Circuit in Grey Bear found

that a lack of sum-certain payment, combined with a

relatively scant legislative history and repeated

recognition of the Devils Lake Reservation by

Congress in the years following the alleged

disestablishment created enough doubt regarding

Congress’s intent to foreclose a holding of

disestablishment, this does not conflict with the Tenth

Circuit’s reasoning below. In this case, the Tenth

Circuit engaged in an extensive analysis of the

contemporary historical context and legislative

history of the 1905 Act, finding that it “reveal[s]

Congress’s longstanding desire to sever from the Wind

River Reservation the area north of the Big Wind

River,” and indicates that Congress intended

diminishment. NAT App. at 21–31. The Tenth Circuit

also found evidence of subsequent treatment of the

area was mixed and “of little evidentiary value.” NAT

App. at 32. Applying this Court’s precedent, the same

precedent applied by the Eighth Circuit in Grey Bear,

the Tenth Circuit weighed the textual and historical

evidence and found that it clearly indicated a

congressional intent to diminish the Wind River

Reservation. While its ultimate conclusion differs

from the one the Eighth Circuit reached, both courts

faithfully applied the test this Court laid out in Solem

to the facts on the ground.

II.

THE DECISION BELOW DOES NOT

CONLFICT

WITH

THIS

COURT’S

PRECEDENT

Ash Sheep Co. v. United States Is a

Rarely Cited Decision Based on Old

Law That This Court Has All But

Overruled.

Petitioners rest the bulk of their argument that

the Tenth Circuit’s opinion below conflicts with this

Court’s precedent on Ash Sheep Co. v. United States,

252 U.S. 159 (1920)—a century-old decision,

superseded by statute, the reasoning of which has

largely been ignored in subsequent decisions by this

Court.

In Ash Sheep, the Court was called upon to

interpret a 1904 law that contained similar language

to the 1905 Act at issue here. The law in Ash Sheep

provided that the Crow Tribe Indians “cede, grant,

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

interest which they may have to the lands embraced

within and bounded by the following-described lines .

. . .” 33 Stat. 352, 356 (1904). The law in Ash Sheep

also stated that, “the United States shall act as

trustee for said Indians to dispose of said lands and to

expend and pay over the proceeds received from the

sale thereof only as received, as herein provided.” 33

Stat. at 361. This is nearly identical to language found

in the 1905 Act.

The Court in Ash Sheep held that this trustee

relationship, despite the language of cession,

indicated that the Crow Tribe retained a beneficial

interest in the land. 252 U.S. at 165. Because they

retained a beneficial interest, it therefore could not

become a part of the public domain and remained

Indian land. Id. Several key factors make this case

inapposite, however.

First, as this Court noted in Solem, the holding

in Ash Sheep has been superseded by statute. Solem,

465 U.S. at 468. While the Court in Ash Sheep ruled

that, because tribes retained a beneficial interest, the

property was therefore prevented from becoming

public land, Ash Sheep, 252 U.S. at 165, Solem

recognized that Congress “uncouple[d] reservation

status from Indian ownership” in 1948. Solem, 465

U.S. at 468. See also Act of June 25, 1948, ch. 645, 62

Stat. 757 (codified at 18 U.S.C. § 1151).

Indeed, this Court has held that statutory

language indicating trust status does not necessarily

mean that Congress did not intend to diminish a

reservation. In Rosebud, the Court found

congressional intent to diminish the reservation,

despite trust provisions similar to those found in the

statutes at issue in Ash Sheep and this case. Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584, 615 (1977).

Second, as noted by the Tenth Circuit, Ash

Sheep has had very little influence on the

development of this Court’s diminishment precedent

and “is seldom mentioned in subsequent cases.” NAT

App. at 20. Ash Sheep may not have ever been

explicitly overturned, but it certainly has been almost

completely ignored by this Court in the near century

since it was decided. In fact, the Court has cited this

case only six times, and has never discussed it at any

length. The two most in-depth discussions appear in

Solem, where the Court notes its holding has been

superseded by a 1948 statute, 465 U.S. at 468, and

Rosebud, where Ash Sheep is mentioned as a c.f. cite

in a footnote. 430 U.S. at 601 n.24. Both cases cite Ash

Sheep in the specific context of explaining that its

reasoning is no longer applicable. Several of this

Court’s most important diminishment cases, such as

Parker, Yankton Sioux Tribe, Hagan, Mattz, and

Seymour, do not cite Ash Sheep at all. The primary

case Petitioners rely upon to show that the Tenth

Circuit’s opinion below conflicts with this Court’s

precedent has a vanishingly small precedential

footprint, has never been relied on by this Court to

decide a case, and is premised on law that no longer

even exists.

The Tenth Circuit’s Opinion is Consistent

with a Long Line of This Court’s Cases.

There is an obvious reason that Petitioners are

forced to turn to a 98-year-old case of limited

precedential value and a fundamental misreading of a

single contemporary case to buttress their argument

in favor of granting their Petition: The Tenth Circuit’s

opinion below is comfortably in line with this Court’s

well-established diminishment precedent. The

circumstances at issue in this case are strikingly

similar to past cases where this Court has found clear

evidence of congressional intent to diminish or

disestablish a reservation, such as DeCoteau v. Dist.

Cty. Court for Tenth Judicial Dist., Rosebud Sioux

Tribe v. Kneip, Hagen v. Utah, and South Dakota v.

Yankton Sioux Tribe. Cases in which this Court has

not found a clear intent to diminish or disestablish,

such as Seymour v. Superintendent, Mattz v. Arnett,

Solem v. Bartlett, and Nebraska v. Parker, however,

can all be easily distinguished.

According to the text of the 1905 Act, the Tribes

agreed to “cede, grant, and relinquish” to the United

States, “all right, title, and interest” in the diminished

area. 33 Stat. at 1016. This is nearly identical to the

language of cession this Court has previously found

indicated congressional intent to diminish in

DeCoteau v. District County Court for the Tenth

Judicial District, 420 U.S. 425, 445 (1975) (where 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

unalloted lands within the limits of the reservation.”);

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 597

(1977) (where the Rosebud Sioux Tribe agreed to

“cede, surrender, grant, and convey to the United

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

to [the unalloted reservation lands] within the

boundaries of Gregory County . . .”); and South Dakota

v. Yankton Sioux Tribe, 522 U.S. 329, 344 (1997)

(where the Yankton Sioux Tribe agreed to “cede, sell,

relinquish, and convey to the United States all their

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

unalloted lands within the limits of their

reservation.”). Just like in these cases, the 1905 Act’s

language was “precisely suited” to the purpose of

ceding reservation land to the federal government. Id.

Petitioners cite Hagen for the proposition that

either a sum certain payment or some explicit

reference to restoring land to the public domain is

necessary for a finding of diminishment. NAT Pet. At

17–18. Hagen, however, stated merely that this

Court’s cases have “uniformly equated [language

restoring land to the public domain] with a

congressional purpose to terminate reservation

status.” 510 U.S. at 414. As the Tenth Circuit stated

below, “[t]here are no magic words of cession required

to find diminishment.” NAT App. at 11. Hagen

explicitly rejects the argument Petitioners are

attempting to make, citing Rosebud—a case in which

this Court found diminishment in the absence of both

sum-certain and public-domain language. 510 U.S. at

412.

In addition to Ash Sheep, each of this Court’s

cases in which a congressional intent to diminish was

not found can be readily distinguished from this case.

Contrary to Petitioners’ claims, Nebraska v. Parker,

this Court’s most recent statement on this issue, does

not stand for the proposition that both language of

cession and a sum certain payment are necessary for

a finding of diminishment. What this Court actually

did in Parker, however, was reaffirm the maxim from

Solem that unambiguous statutory language is a clear

indicator of intended diminishment, including explicit

reference to cession language or an unconditional

commitment from Congress for compensation for the

opened land. 136 S. Ct. 1072, 1079 (2016). The law at

issue in Parker did not include either clear language

of cession, nor did the Court find strong contextual

evidence of an intent to diminish. This case, however,

presents both unambiguous statutory language of

cession and a legislative history that points strongly

in favor of diminishment.

In cases such as Solem, Seymour, and Mattz,

the acts at issue also did not include clear,

unambiguous language of cession. As pointed out by

the Tenth Circuit below, the operative language of

these 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.” NAT App. at 14. Unlike here (and

in cases like Rosebud and DeCoteau), “the Secretary of

the Interior was simply being authorized to act as the

Tribe’s sales agent.” Solem, 465 U.S. at 472–73. The

lack of clear cession language, present in the 1905 Act,

doomed these cases, and make this case clearly

distinguishable.

III.

THIS CASE PRESENTS NO NOVEL

FACTS OR LEGAL ARGUMENTS AND

DOES NOT WARRANT THIS COURT’S

INTERVENTION

This is a case in which a widely accepted and

well-established test was applied to a fairly standard

set of facts, resulting in an outcome that looks

remarkably similar to the outcomes of previous cases

where this Court found clear congressional intent to

diminish. The Tenth Circuit did not make any

particularly novel legal arguments in its opinion, nor

did either of the two Petitioners in their briefs before

this Court. And while the Tenth Circuit’s decision was

clearly correct, even if it was not, this case would still

not warrant a grant of certiorari. Even if the Tenth

Circuit was wrong in its conclusions, that would only

amount to a simple misapplication of what all parties

agree is a well-established rule. As this Court’s Rule

10 states: “A petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly

stated rule of law.” Sup. Ct. R. 10. See S. Shapiro, et

al., Supreme Court Practice § 5.12(c)(3), p. 352 (10th

ed. 2013) (“[E]rror correction . . . is outside the

mainstream of the Court's functions and . . . not

among the ‘compelling reasons' . . . that govern the

grant of certiorari”).

Beyond the primary factors this Court looks to

when determining whether to grant a petition for a

writ of certiorari—the existence of a circuit split or a

direct conflict with the Court’s precedent—these

Petitions do not present any other compelling reason

to grant review. The fact that the rule governing the

diminishment or disestablishment of a reservation is

already well-settled, and that any diminishment

decision will necessarily be highly fact-based, See

Solem, 465 U.S. at 469 (“The effect of any given

surplus land act depends on the language of the act

and the circumstances underlying its passage.”), also

means that a decision by this Court in this case would

be of limited precedential value.

Barring a dramatic reversal in this Court’s

diminishment jurisprudence, all future courts tasked

with determining whether a reservation has been

diminished or disestablished will continue to follow

the three-part Solem framework. Those courts will

continue to focus primarily, though not exclusively, on

the plain meaning of the statutory text. A decision by

this Court on the merits would, at most, provide

another updated example of how to apply the wellestablished Solem rule, which this Court again did

only two years ago, in Nebraska v. Parker. In a time

where more and more issues are competing for space

on this Court’s limited docket, there is no compelling

reason to reaffirm a well-settled doctrine that the

Court so recently revisited. 2

♦

2 Even the EPA, which was the Respondent in the Tenth

Circuit, apparently recognized that this case does not warrant

this Court’s review, as the agency chose not to appeal the Tenth

Circuit’s judgment.

CONCLUSION

For the foregoing reasons, the petitions for writs of

certiorari should be denied.

Respectfully submitted,