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

No. 17-1159

In the

Supreme Court of the United States

________________

NORTHERN ARAPAHO TRIBE,

v.

Petitioner,

STATE OF WYOMING;

WYOMING FARM BUREAU FEDERATION,

________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Tenth Circuit

________________

REPLY BRIEF FOR PETITIONER

________________

ANDREW W. BALDWIN

BERTHENIA CROCKER

KELLY A. RUDD

BALDWIN,

CROCKER &

RUDD, P.C.

P.O. Box 1229

Lander, WY 82520

PAUL D. CLEMENT

Counsel of Record

GEORGE W. HICKS, JR.

MICHAEL D. LIEBERMAN

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Petitioner

June 4, 2018

TABLE OF CONTENTS

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

REPLY BRIEF ............................................................ 1

I.

The Tenth Circuit’s Decision Conflicts With

Precedent From This Court And The Eighth

Circuit .................................................................. 3

II. The Tenth Circuit’s Conclusion Is Wrong .......... 9

III. This Case Is Exceptionally Important .............. 12

CONCLUSION ......................................................... 13

ii

TABLE OF AUTHORITIES

Cases

Ash Sheep Co. v. United States,

252 U.S. 159 (1920) .................................................. 4

DeCoteau

v. Dist. Cty. Court for Tenth Judicial Dist.,

420 U.S. 425 (1975) .................................................. 3

Hagen v. Utah,

510 U.S. 399 (1994) .................................................. 3

Mattz v. Arnett,

412 U.S. 481 (1973) .................................................. 8

Nebraska v. Parker,

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

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977) .............................................. 3, 8

Royal v. Murphy,

__ S. Ct. __ (2018) .................................................... 8

Solem v. Bartlett,

465 U.S. 463 (1984) ........................................ 5, 9, 10

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998) .................................................. 3

State v. Moss,

471 P.2d 333 (Wyo. 1970) ........................................ 8

United States v. Grey Bear,

828 F.2d 1286 (8th Cir. 1987).......................... 1, 6, 7

Yellowbear v. State,

174 P.3d 1270 (Wyo. 2008) ...................................... 8

iii

Other Authorities

Reply Br., E. Shoshone Tribe v. Wyoming,

No. 17-1164 (June 4, 2018) ...................................... 4

S. Rep. No. 58-4263 (1905) ....................................... 11

REPLY BRIEF

This Court has found diminishment only when

the relevant statute guaranteed a sum-certain

payment, expressly restored reservation lands to the

public domain, or was buttressed by a historical record

unequivocally

demonstrating

diminishment.

Wyoming concedes, and the other respondents barely

dispute, that none of these features exists in this case.

A divided Tenth Circuit nevertheless held that

statutory cession language alone, unaccompanied by

sum-certain language, satisfies the heavy burden of

establishing diminishment, and accordingly concluded

that the 1905 Act diminished the Tribes’ Reservation

by two-thirds while giving the Tribes nothing beyond

the promise of proceeds from sales that never

materialized. That reasoning conflicts with a long line

of this Court’s cases, the considered views of two

federal agencies, and the Eighth Circuit’s decision in

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

1987). Moreover, the Tenth Circuit ignored multiple

textual features indicating non-diminishment,

including material differences from earlier acts

working a diminishment—a factor this Court deemed

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

Respondents have little to say about any of that,

instead drawing immaterial distinctions and ignoring

the significance of sum-certain language, which is not

only legally significant but ensures that diminishment

will not occur in exchange for nothing. Respondents

note that cession language appears in multiple

statutes that diminished reservations. But while

cession-plus-sum-certain language has been found to

accomplish diminishment, the relevant question is

2

whether cession-without-sum-certain language is

enough. The answer suggested by this Court’s

precedents and supplied by two federal agencies and

Grey Bear is no.

Respondents claim that the

legislative history in Grey Bear did not unequivocally

support diminishment, but the same is true here,

making the split unavoidable. Respondents’ answer to

Parker is to emphasize that the Lander and

Thermopolis Purchases and 1905 Act all use cession

language, but only the 1905 Act lacks a sum certain,

which is the salient difference here as it was in Parker.

On the merits, none of respondents’ arguments is

persuasive, and none changes the fact that the Tenth

Circuit’s decision conflicts with this Court’s precedent,

a published Eighth Circuit decision, and the

considered judgments of two executive-branch

agencies. The Solicitor General acknowledges those

prior determinations in passing, but suggests that the

Tenth Circuit’s decision is not certworthy without

defending the decision on the merits. That approach

cannot obscure the reality that both Interior and EPA

engaged in exhaustive analyses—22 pages for Interior

and 83 pages in the case of the EPA—that squarely

conflict with both the legal analysis and ultimate

conclusion of the Tenth Circuit. Finally, there is no

doubting the importance of this case, as even

Wyoming concedes the decision’s impact on “a

significant amount of land and the rights of many

individuals.” WY.Opp.35. At a minimum, this case

should be held pending Royal v. Murphy, No. 17-1107,

but the better course would be to grant review and

hear these cases going to the heart of tribal and state

sovereignty in tandem.

3

I.

The Tenth Circuit’s Decision Conflicts With

Precedent From This Court And The Eighth

Circuit.

A. The Tenth Circuit’s attribution of dispositive

significance to statutory cession language, absent the

promise of a sum certain, has no support in this

Court’s jurisprudence. Respondents assert that this

Court has found diminishment from surplus land acts

that included cession language.

WY.Opp.6-7;

Bureau.Opp.11-12; Muni.Opp.7; SG.Opp.15.

But

petitioners never suggested otherwise. The Tenth

Circuit’s conflict-creating innovation was to find

diminishment from cession language alone, absent

sum-certain language as in DeCoteau v. District

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

(1975), and South Dakota v. Yankton Sioux Tribe, 522

U.S. 329 (1998), or an “unequivocal” historical record,

as in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977).

Citing Hagen v. Utah, 510 U.S. 399 (1994),

respondents argue that diminishment does not

invariably require both cession language and a sumcertain payment.

WY.Opp.25; Bureau.Opp.12;

Muni.Opp.8-9; SG.Opp.15-16.

Again, petitioners

never suggested otherwise. See Pet.23-24. But in

Hagen—the only case in which this Court has found

diminishment from statutory text without sumcertain language—the statute expressly “restored

[land] to the public domain.” 510 U.S. at 403-04. Like

sum-certain language, public-domain language

“evidences a congressional intent … inconsistent with

the continuation of reservation status.” Id. at 414. In

contrast, cession language without sum-certain or

4

public-domain language is equally if not more

consistent with opening the reservation for

settlement, which is why this Court has never held

cession language alone sufficient to prove

diminishment.1

The Solicitor General contends that the Tenth

Circuit did not rely on cession language alone, but also

on the 1905 Act’s references to a “diminished reserve.”

SG.Opp.13-14. But the very fact that the SG must

resort to a fleeting reference in the last sentence of a

footnote, see Pet.App.15 n.6, in his effort to find any

textual factor beyond cession language in the Tenth

Circuit’s step-one analysis underscores how fixated

the Tenth Circuit was on cession language. The fact

remains that the Tenth Circuit—and the Tenth

Circuit

alone—found

cession

language,

unaccompanied by sum-certain or public-domain

language, dispositive. That is why all other textual

indications of non-diminishment, such as the

treatment of school lands and the Boysen provision,

were given short shrift.

See pp.9-11, infra.2

Furthermore, even if the court had relied on those

references to a diminished reservation, that would

1 The decision below thus conflicts with this Court’s cases going

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

where cession language alone was not dispositive. See Pet.22-23;

Reply Br.6-8, E. Shoshone Tribe v. Wyoming, No. 17-1164 (June

4, 2018).

Indeed, not only did the Tenth Circuit give outcomedeterminative weight to the language of cession at step one, but

it used that same language to truncate any meaningful

consideration of the other steps, claiming that it “need not search

for” unequivocal historical evidence because “the statute contains

express language of cession.” Pet.App.21.

2

5

only underscore the conflict with this Court’s cases,

which instruct that it is “impossible to infer … a

congressional purpose to diminish” from such

references because the term “diminished” was “not yet

a term of art in Indian law” and “may well have

[referred] to diminishment in common lands and not

diminishment of reservation boundaries.” Solem v.

Bartlett, 465 U.S. 463, 475 n.17, 478 (1984).

Respondents offer no excuse for the Tenth

Circuit’s refusal to acknowledge the stark differences

between the 1905 Act and the two earlier purchase

acts that diminished the Reservation, even though

this Court deemed an analogous “change in language”

significant in Parker, 136 S. Ct. at 1080. See Pet.2729. Wyoming suggests that the earlier purchase acts

are “not meaningfully different [from] the 1905 Act”

because they used similar cession language.

WY.Opp.26.

That argument elides the relevant

difference: Congress used sum-certain language in

the two earlier acts but not in the 1905 Act, which

promised payment only to the extent that land sales

materialized. Pet.29. The absence of sum-certain

language not only distinguishes the earlier Acts, but

underscores that the Tenth Circuit found the

Reservation diminished in exchange for nothing

except sale proceeds that never materialized.

Respondents’ only other argument—that Parker did

not involve cession language, WY.Opp.21 n.6;

Muni.Opp.9; SG.Opp.17—is even less responsive. The

point is not that the statute in Parker was identical,

but that in both cases, Congress’ decision to replace

language perfectly suited for diminishment with

language equally consistent with merely opening land

6

for sales undermines the notion that Congress

intended to diminish the Reservation.

B. Respondents fare no better in trying to

distinguish Grey Bear, in which the Eighth Circuit

considered virtually identical text but reached exactly

the opposite result. Pet.24-27. Respondents claim

that Grey Bear is distinguishable because there was

too little legislative history there to inform the prongtwo analysis.

WY.Opp.31; Bureau.Opp.7-8;

SG.Opp.21.

The legislative history here is no

different, Pet.31-34, but regardless, the conflict here

arises antecedently at prong one: The Eighth Circuit

in Grey Bear concluded that cession language is not

enough to “evince a clear congressional intent to

disestablish,” 828 F.2d at 1290, while the Tenth

Circuit concluded that “practically identical”

language, Bureau.Opp.4, “can only indicate … a

diminished reservation,” Pet.App.16.3

Wyoming attempts to distinguish the statute in

Grey Bear because it did not “specifically define[]” the

boundaries of the opened lands due to some

unassigned allotments. WY.Opp.32. Wyoming argues

that this “difference matters,” id. at 31, but it did not

matter to either the Eighth or Tenth Circuits. Neither

court mentioned these attributes—much less ascribed

any significance to them—in finding no diminishment

(in Grey Bear) or distinguishing Grey Bear (in the

decision below). Wyoming also argues that the Grey

Municipal Respondents note that Grey Bear involved

disestablishment, not diminishment, Muni.Opp.4, but they cite

no authority suggesting that the applicable standard differs.

Indeed, Grey Bear itself refers interchangeably to

“disestablishment or diminishment.” 828 F.2d at 1289.

3

7

Bear statute is distinguishable because what “appears

to be clear language of cession” is rendered

“ambiguous” by the language addressing allotments.

WY.Opp.32. Again, neither the Eighth nor Tenth

Circuits adopted this view, and understandably so.

Once the allotments were assigned, everything that

remained unallotted was “ceded.” Grey Bear, 828 F.2d

at 1290. The only question was whether that “explicit

reference to cession” could effect diminishment

without an “unconditional commitment by Congress to

pay the tribe.” Id. (emphasis omitted). The Eighth

Circuit concluded that it could not, while the Tenth

Circuit here concluded that it did.

Some respondents insist that Congress did make

an “unconditional commitment to pay” in the 1905 Act

by including “lump sum allocations.” Bureau.Opp.6;

see Muni.Opp.3. But as the dissent below explained,

the “lump sum allocations” were not guaranteed sumcertain payments; they were either advance payments

that the Tribes were required to pay back from “the

proceeds of sales of the ceded lands,” or they were

payments wholly contingent on those sales.

Pet.App.17; see Pet.App.42 (Lucero, J., dissenting).

For example, while the Act allocated a lump sum for

the purchase of livestock, the allocation was of “fifty

thousand dollars of the moneys derived from the sale of

the ceded lands.” Pet.App.256 (emphasis added)).

Thus, here as in Grey Bear, the Tribe was entitled to

unconditional funds “only for the lands actually

disposed of by the government.” 828 F.2d at 1290.

C. Respondents argue that the decision below is

consistent with certain Wyoming Supreme Court

decisions. WY.Opp.17-20; Muni.Opp.4-6; SG.Opp.19-

8

20. But the conflict with this Court’s precedents, Grey

Bear, and two federal agencies more than suffices.

Indeed, this Court regularly grants review in

diminishment cases without any split of authority,

including just last month. Royal v. Murphy, __ S. Ct.

__ (2018); see also Parker, 136 S. Ct. 1072; Rosebud,

430 U.S. 584; Mattz v. Arnett, 412 U.S. 481 (1973).

In all events, respondents overstate the relevance

and persuasiveness of the state cases. The SG, for

example, cites Yellowbear v. State, 174 P.3d 1270,

1274 (Wyo. 2008), but neglects to mention that the

federal government previously repudiated that

decision because, among other things, the decision did

not “consider[] all of the relevant factors,” was not

made on a “fully developed record,” and did not

“consider … language … suggesting an absence of

intent to diminish” or “compare the 1905 Act to”

earlier purchase acts. Pet.App.193-94.4 Respondents

invoke State v. Moss, 471 P.2d 333 (Wyo. 1970),

WY.Opp.17-18; Muni.Opp.5; SG.Opp.19, but that

decision is unpersuasive in multiple respects, as it

predated this Court’s modern diminishment

framework and wrongly equated extinguishment of

tribal title with diminishment of a reservation. See

Pet.App.193 n.76 (federal government criticizing

Moss).

4 Respondents note that the Tenth Circuit declined to disturb

Yellowbear on habeas review. WY.Opp.19-20; Muni.Opp.5-6;

SG.Opp.19-20. But the unpublished denial of a habeas petition

is not precedential, implicates stringent post-conviction legal

standards, and only underscores the conflict between the Tenth

and Eighth Circuits.

9

In the end, there is no denying that the decision

below has no precedent in this Court’s diminishment

jurisprudence and “creat[es] a needless circuit split.”

Pet.App.45 (Lucero, J., dissenting). There likewise is

no denying that the two federal agencies to

exhaustively consider the issue concluded the

Reservation was undiminished by the 1905 Act. Given

all that and the Tenth Circuit’s stark conclusion that

the 1905 Act extinguished tribal sovereignty over twothirds of the Tribes’ long-held sacred lands in

exchange for nothing, plenary review is plainly

warranted.

II. The Tenth Circuit’s Conclusion Is Wrong.

The decision below not only implicates multiple

conflicts; it is wrong. The text of the 1905 Act and its

surrounding circumstances do not reflect the “clear

and plain” congressional purpose required to overcome

the “presumption that Congress did not intend to

diminish the Reservation.” Solem, 465 U.S. at 481.

A. The 1905 Act contains neither sum-certain nor

public-domain language, and it markedly differs from

prior purchase acts that diminished the Reservation.

Pet.27-30. Respondents largely ignore other textual

indicators of non-diminishment like the provision

allowing members to remain on the opened lands, the

absence of a school-lands provision, and the Boysen

provision.

Indeed, the Bureau, the Municipal

Respondents, and the SG do not even mention those

provisions, much less explain how they are consistent

with the necessary “clear textual signal” that

10

Congress intended to diminish the reservation.

Parker, 136 S. Ct. at 1080.5

Wyoming does address the provisions, but its

explanations are unpersuasive and conflict with this

Court’s treatment of similar provisions. Wyoming

speculates that Congress allowed tribal members to

remain on the opened lands only because it would be

“unfair” to force them off. WY.Opp.29. The notion

that Congress was animated by fairness in passing a

law that, by Wyoming’s telling, diminished the

Reservation by two-thirds without any guaranteed

compensation is fanciful at best.

Regardless,

Wyoming’s argument conflicts with Solem, where this

Court found a similar provision “strongly suggest[ive]”

of non-diminishment. 465 U.S. at 474; Pet.30.

Wyoming’s response to the absence of a schoollands provision—routinely included in acts found to

diminish—is that “absent diminishment, Congress

would have had no need to discuss the effect of the

1905 Act on Sections 16 and 36.” WY.Opp.30. Exactly.

The 1905 Act did not discuss those sections, precisely

because Congress was not diminishing the

Reservation and therefore was not obligated to grant

those sections to Wyoming. Pet.30-31.

Finally, Wyoming argues that Congress included

the

Boysen

provision

because

it

believed

diminishment would terminate Boysen’s rights and it

wanted to prevent that “inequity.” WY.Opp.29. But

as the Senate reported, the provision was included to

avoid “cast[ing] a cloud over the title of the lands

5 Notably, while disclaiming the need for review, the SG does

not defend the decision below on the merits.

11

enumerated in” Boysen’s lease. S. Rep. No. 58-4263,

at 2 (1905). That concern about unclear title would

not have arisen had Congress unequivocally

diminished the Reservation in the 1905 Act, because

Boysen’s lease expressly provided that it would

terminate upon diminishment. Pet.30; Pet.App.129134. In the event of diminishment, there would be no

lease, no cloud, and no uncertainty. The Boysen

provision is thus contemporaneous evidence that the

1905 Congress did not believe it was unambiguously

diminishing the Reservation, and thus took clarifying

action consistent with retention of reservation status

(and Boysen’s continuing leasehold).

B. Respondents essentially concede that the

legislative history lacks the “unequivocal” evidence

required to “overcome the lack of clear textual signal”

of diminishment. Parker, 136 S. Ct. at 1080. Most

significant, not one respondent defends the Tenth

Circuit’s misguided theory that Congress maintained

an intent to diminish the Reservation during the 14year stretch between the unratified 1891 agreement

and the 1905 Act notwithstanding the intervening

Thermopolis Purchase—even though this theory

predominated the court’s historical analysis. See

Pet.App.22-30; Pet.33-34. Respondents also have no

answer to the Tenth Circuit’s acknowledgement that

the legislative history of the Boysen and school-lands

provisions “may cut against … diminishment,”

Pet.App.30 n.14, or to other passages in the legislative

history—ignored by the Tenth Circuit—that

underscore the absence of unequivocal evidence of

intent to diminish. Pet.31-32.

12

C. Respondents barely dispute the Tenth Circuit’s

conclusion that the subsequent treatment of the

opened lands is too equivocal to support

diminishment.

Pet.App.32.

Wyoming merely

“asserts” its disagreement in a footnote without citing

any evidence or refuting the evidence in the Petition.

WY.Opp.23 n.7; see Pet.34-35.

Similarly, the

Municipal Respondents simply state that the evidence

“was not fully explored.” Muni.Opp.12-13. At bottom,

respondents’ non-defense of the Tenth Circuit’s

analysis under prong two and their nonresponsiveness under prong three confirm that this

case turns on prong one, underscoring the need for this

Court to resolve whether cession language alone

suffices for diminishment.6

III. This Case Is Exceptionally Important.

No respondent disputes the exceptional

importance of this case. To the contrary, Wyoming

concedes that this case “is very important” and

“concerns a significant amount of land and the rights

of many individuals.” WY.Opp.34-35. A decision

finding that the sovereign territory of two Tribes was

diminished by two-thirds in exchange for nothing

would merit this Court’s plenary review even in the

absence of a split in authority. Here, however, the

6 Wyoming and the SG note that some of the opened lands have

been expressly “restored” to the Tribes.

WY.Opp.14-16;

SG.Opp.4-6. But that neither supports diminishment nor lessens

the importance of this case. To the contrary, those subsequent

developments just underscore that the anticipated land sales

never materialized and that the decision below creates a

jurisdictional patchwork over the lands addressed by the 1905

Act, which in the main have never been subject to sales or

settlement.

13

Tenth Circuit’s decision conflicts with this Court’s

cases, Eighth Circuit precedent, and the considered

judgments of two federal agencies. The need for this

Court’s review could not be clearer.7

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

ANDREW W. BALDWIN

BERTHENIA CROCKER

KELLY A. RUDD

BALDWIN,

CROCKER &

RUDD, P.C.

P.O. Box 1229

Lander, WY 82520

PAUL D. CLEMENT

Counsel of Record

GEORGE W. HICKS, JR.

MICHAEL D. LIEBERMAN

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Petitioner

June 4, 2018

7 As noted, the Court should, at a minimum, hold this case for

Royal v. Murphy, No. 17-1107, in which petitioner has asked this

Court to alter the Solem framework. That said, rather than send

the signal that the Court is more receptive to state petitions

seeking diminishment than tribal petitions seeking to preserve

boundaries, the Court should grant the petitions here and

consider hearing this case in tandem with Royal.