Petition for Writ of Certiorari — Eastern Shoshone Tribe, Petitioner v. Wyoming, et al.

Supreme Court briefFeb 16, 2018

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APPENDICES

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 14-9512 & 14-9514

Filed November 7, 2017

STATE OF WYOMING, and WYOMING FARM BUREAU

FEDERATION

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.

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-R08-2013-0007)

Before TYMKOVICH, Chief Judge, KELLY, and

LUCERO, Circuit Judges.

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 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.

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 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 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 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 self-determination. 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 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 nonregulatory 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 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 previ∗∗

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 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.

ously 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)).

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 well-settled 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)).

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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.

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 lan-

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guage 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).

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 Reserva-

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tion. 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 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

∗∗∗

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.

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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

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 nonIndian 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 Indian reserva∗∗∗∗∗

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)[.]

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tions” within the described boundaries. 465 U.S. at 47273. 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 1290-91. Thus

although step one of the Solem analysis pointed to diminishment,

steps two and three made it clear that was not Congress’s intent.

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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”:

********

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

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”

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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 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,

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).

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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 two-way 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 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

**********

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 … .”

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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 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

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.

19a

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, 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.

20a

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.

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

21a

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.***********

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

***********

Congress did successfully obtain the land around

the Big Horn Hot Springs through the Thermopolis purchase in

1897. 30 Stat. at 94.

22a

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 thenActing Commissioner to the Secretary of the Interior A.

C. Tonner explaining structure of payment framework).

Thus, to comply with prevailing policy, the sum 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

23a

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 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

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

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 PahUtes, 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.

24a

than under the old lump sum agreements.”

Minutes, at 4.

Council

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 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.

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

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.

25a

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 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 under-

26a

stood 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 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 well-defined 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

27a

boundary, as stipulated in the agreement, was

ample for the needs of the Indians … .

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 into the record

28a

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 the end, Congress’s con**************

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

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

29a

sistent 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 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

lands—evinced an intent not to diminish the Reservation’s boundaries. JA 4606-07. 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.

30a

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 after the

1905 Act indicates some inconsistent treatment of the

1905 area”).***************

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

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.

31a

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. 11281130), 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, 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.

32a

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 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,

33a

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 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,

34a

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 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

35a

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 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.

36a

14-9512 & 14-9514, Wyoming v. United States Environmental Protection Agency

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 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

37a

from Solem, 465 U.S. at 470-71, I would hold that the

1905 Act did not diminish Reservation boundaries. Accordingly, I respectfully dissent.

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 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.

38a

Because the 1905 Act lacked sum-certain payment,

the majority opinion’s reliance on sum-certain 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 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 16465. And, in language nearly identical to the 1905 Act,

39a

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

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 statutory lan1

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.) But in

DeCoteau, a case upon which the majority relies, the Court cites

Ash Sheep in distinguishing Mattz based on the absence of sumcertain payment. See DeCoteau, 420 U.S. at 448.

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

allotment within the opened territory would be permitted to ob-

40a

guage 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. 321-22), 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 oppotain 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.

41a

site 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 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.

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

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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, 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. 58-3700, 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

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.

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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 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 provision

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.

44a

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.) 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

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).

45a

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. 24-25, 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 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 fourteen-year 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

46a

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 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

47a

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 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

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 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).

48a

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 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

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.)

49a

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. 3540), 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.

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 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.

51a

APPENDIX B

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 14-9512 and 14-9514

Filed February 22, 2017

STATE OF WYOMING, and

WYOMING FARM BUREAU FEDERATION,

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION

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

Administrator of the United States Environmental

Protection Agency; DEB THOMAS, in her 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.

Pursuant to Fed. R. App. P. 43(c)(2) E. Scott Pruitt is substituted for Gina McCarthy as the Administrator of the United

States Environmental Protection Agency, and Deb Thomas is substituted for Shaun McGrath as the Acting Region 8 Administrator

of the United States Environmental Protection Agency.

52a

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 HOSPITAL, LLC,

Amici Curiae.

PETITION FOR REVIEW OF A FINAL ORDER

FROM THE ENVIRONMENTAL PROTECTION

AGENCY (NO. EPA-1-R08-2013-0007)

Before TYMKOVICH, Chief Judge, KELLY, and

LUCERO, Circuit Judges.

TYMKOVICH, Chief Judge.

This case requires us to determine whether Congress diminished the boundaries of the Wind River

Reservation in Wyoming in l905. 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 land within

the original 1868 boundaries fell within their jurisdiction.

53a

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

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.

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 take shape, which

54a

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 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

55a

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 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

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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 self-determination. 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 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

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

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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 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.

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II. Analysis

Our task here is limited: we must determine

whether Congress diminished the Wind River Reservation in 1905 by legislative act.1 As we have previous1