Amicus Curiae Brief — Eastern Shoshone Tribe, Petitioner v. Wyoming, et al.

Nos. 17-1159 and 17-1164

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In The

Supreme Court of the United States

-----------------------------------------------------------------NORTHERN ARAPAHO TRIBE, ET AL.,

Petitioners,

v.

WYOMING, ET AL.,

Respondents.

-----------------------------------------------------------------EASTERN SHOSHONE TRIBE,

Petitioner,

v.

WYOMING, ET AL.,

Respondents.

-----------------------------------------------------------------On Petitions For Writs Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

-----------------------------------------------------------------BRIEF OF LAW PROFESSORS

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------RICHARD B. COLLINS

Counsel of Record

UNIVERSITY OF COLORADO

401 UCB

Boulder, CO 80309

(303) 492-5493

richard.collins@colorado.edu

[Additional Amici Appear On Signature Page]

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

Table of Authorities .............................................

ii

Interest of Amici Curiae ......................................

1

Summary of Argument ........................................

1

Argument .............................................................

2

I.

Congress’s Extraordinarily Undemocratic

Power to Dictate to Tribes Must Require

Clear Statement for Its Exercise ...............

2

The Clear Statement Rule Implements the

Federal Policy to Maintain a Government-toGovernment Relationship with the Indian

Tribes .........................................................

4

The Tribes’ Authority over the Reservation’s

Non-Indian Residents Does Not Justify an

Exception to the Rule .................................

6

Conclusion............................................................

7

II.

III.

ii

TABLE OF AUTHORITIES

Page

CASES

Alaska Pac. Fisheries v. United States, 248 U.S.

78 (1918) ....................................................................4

Bond v. United States, 134 S. Ct. 2077 (2014) .............5

Choate v. Trapp, 224 U.S. 665 (1912) ...........................3

Ex parte Crow Dog, 109 U.S. 556 (1883) ......................4

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) ................3

Montana v. Blackfeet Tribe of Indians, 471 U.S.

759 (1985) ..................................................................4

Montana v. United States, 450 U.S. 544 (1981) ...........6

Morrison v. National Australia Bank Ltd., 561

U.S. 247 (2010) ..........................................................5

Oliphant v. Suquamish Indian Tribe, 435 U.S.

191 (1978) ..................................................................6

Plains Commerce Bank v. Long Family Land &

Cattle Co., 554 U.S. 316 (2008) .................................6

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

329 (1998) ..................................................................3

Trans World Airlines, Inc. v. Franklin Mint

Corp., 466 U.S. 243 (1984) .........................................5

United States v. Santa Fe Pac. R.R. Co., 314 U.S.

339 (1941) ..................................................................4

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) .........4

iii

TABLE OF AUTHORITIES – Continued

Page

STATUTE AND RULE

42 U.S.C. § 7410(o) ........................................................6

40 C.F.R. part 49 (2017) ................................................6

OTHER

Declaration of Independence (1776) ............................2

Nell Jessup Newton et al., Cohen’s Handbook of

Federal Indian Law § 14.02[2][a] (2012 ed.) ............3

https://sites.dartmouth.edu/censushistory/2016/

01/25/native-americans-and-the-census ..................3

https://www.census.gov/newsroom/releases/

archives/2010_census/cb12-cn06.html .....................3

Philip P. Frickey, Marshalling Past and Present:

Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev.

381 (1993) ..................................................................5

President George W. Bush, Memorandum for the

Heads of Executive Departments and Agencies

(Sept. 23, 2004), found at https://www.doi.gov/

pmb/cadr/programs/native/Government-toGovernment-Relationship-with-TribalGovernments .............................................................5

1

INTEREST OF AMICI CURIAE1

This brief is filed by and on behalf of teachers and

scholars of American Indian law. As Indian law is a

complex field, amici have considerable interest in ensuring that federal Indian law decisions consistently

and accurately reflect the distinctive history and rules

of construction that govern this field.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

The question is whether the 1905 Act of Congress

had the clear intent to diminish the Wind River Reservation’s boundaries. This is a crucial occasion to apply

the canon of interpretation requiring that ambiguous

laws are insufficient to impair basic rights of Indian

tribes. This Court has held that Congress has plenary

authority over tribes. At the time of the 1905 statute,

it even held the power unconstrained by the Bill of

Rights. This power has never been subjected to democratic consent by Indian votes. Such an extraordinarily

undemocratic power to dictate to tribes must require

clear statement for its exercise. This rule also accords

with the Court’s general rule to demand clear statement for Congress to invade the authority of states and

1

No party or party’s counsel authored this brief in whole or

in part, and no person other than amici curiae contributed money

to fund the preparation or submission of this brief. As required by

Rule 37(a)(2), we provided notice to all parties’ counsel of record

of intent to file this brief more than 10 days before its due date.

Our notice was accompanied by a request that each party consent

to the filing. All parties consented.

2

of foreign governments. The Court should grant review

in this case to make certain that the rule is properly

observed.

------------------------------------------------------------------

ARGUMENT

The judges in the court below and all parties agree

that the question in this case is whether the 1905 Act

of Congress had the clear intent to diminish the boundaries of the Wind River Reservation. Resolution turns

on whether that standard has been met. This is a crucial occasion to apply the canon of interpretation requiring that ambiguous laws are insufficient to impair

basic rights of Indian tribes. The majority below conceived of this rule as a garden-variety presumption

and undervalued it. The rule is instead essential to

protect against an extraordinary abuse of democracy.

It must demand more than the confused record of the

1905 statute.

I.

Congress’s Extraordinarily Undemocratic

Power to Dictate to Tribes Must Require

Clear Statement for Its Exercise

Consent of the governed is the bedrock of free and

democratic government. Declaration of Independence

(1776). We could cite many more authorities for this

statement, but it seems to us too obvious to need them.

Actual governments fall short in various ways, but a

hallmark of American constitutional progress has been

removal of one barrier to democracy after another. Yet

3

Congress retains authority over tribes that this Court

has repeatedly characterized as plenary.2 In the era of

the 1905 statute, the Court even held the power to be

unconstrained by the Bill of Rights.3

This extraordinary power has never been subjected to consent by Indian votes. When the nation was

founded and Indian people were relatively numerous,

they were not citizens and thus could not vote. By the

time of the 1905 statute, some were citizens and voters,

but by that time their numbers were far too few to have

any meaningful influence over Congress. All can vote

now, but no member of Congress faces enough tribal

votes to fear their retribution at the ballot box.4 Members’ chances for reelection are more likely constrained

by tribes’ powerful opponents, such as the State of Wyoming.

This congressional power is embedded in government structure, which cannot be altered retroactively by lawsuit. But from the earliest years of the

Nation, this Court has perceived that a power so

2

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

343 (1998).

3

Lone Wolf v. Hitchcock, 187 U.S. 553, 564 (1903). Cf. Choate

v. Trapp, 224 U.S. 665, 671 (1912) (“there is a broad distinction

between tribal property and private property”).

4

See Nell Jessup Newton et al., Cohen’s Handbook of Federal Indian Law § 14.02[2][a] (2012 ed.); https://sites.dartmouth.

edu/censushistory/2016/01/25/native-americans-and-the-census

(1900 census Indian-only population 0.3%); https://www.census.gov/

newsroom/releases/archives/2010_census/cb12-cn06.html (2010

census Indian and Native Alaskan population, including multiple

race reports, 1.7%).

4

fundamentally undemocratic must be tempered by a

rule of clear statement as a condition of its exercise. It

is not a mere presumption to be overcome by assembling the kind of fuzzy pieces cobbled by the court below. Early decisions involved interpretations of Indian

treaties.5 Then the Court demanded clear intent to

override treaties.6 Later the principle was applied to

statutes directly governing tribes.7 Respect for the

principle has varied from time to time, but the moral

basis for its application is always present. We urge the

Court to grant review in this case to make certain that

the rule is properly observed.

II.

The Clear Intent Rule Implements the Federal Policy to Maintain a Government-toGovernment Relationship with the Indian

Tribes

The United States began its relationship with Indian nations by recognizing them as nations, as

“among those powers who are capable of making treaties.”8 Treaty making ended, but the Government continued to seek Indian consent, to bargain with tribes,

5

See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582

(1832) (M’Lean, J., concurring) (“The language used in treaties

with the Indians should never be construed to their prejudice.”).

6

E.g., Ex parte Crow Dog, 109 U.S. 556, 572 (1883).

7

E.g., Montana v. Blackfeet Tribe of Indians, 471 U.S. 759,

766 (1985); United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339,

353-55 (1941); Alaska Pac. Fisheries v. United States, 248 U.S. 78,

89-90 (1918).

8

Worcester v. Georgia, supra, 31 U.S. (6 Pet.) at 559.

5

and to characterize the association with them as a

“government-to government-relationship.”9

The clear intent rule is not unique to Indian affairs. It exists in every area in which Congress has

power to undermine the authority of other governments – foreign, state, or tribal.10 Like treaties with Indian tribes, treaties with foreign nations “will not be

deemed to have been abrogated or modified by a later

statute unless such purpose on the part of Congress

has been clearly expressed.”11

Statutes do not operate extraterritorially unless

the affirmative intention of the Congress is clearly expressed.12 Clear evidence of congressional intent is necessary to construe a statute to intrude on state

authority.13 In each area, Congress has power to act,

but its actions will undermine traditional boundary

lines between governments.

Diminishment would deprive the Eastern Shoshone and Northern Arapaho Tribes of tribal authority

9

See, e.g., President George W. Bush, Memorandum for the

Heads of Executive Departments and Agencies (Sept. 23, 2004),

found at https://www.doi.gov/pmb/cadr/programs/native/Government-to-Government-Relationship-with-Tribal-Governments.

10

See Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian

Law, 107 Harv. L. Rev. 381, 415-17 (1993).

11

Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S.

243, 252 (1984).

12

Morrison v. National Australia Bank Ltd., 561 U.S. 247,

255 (2010).

13

Bond v. United States, 134 S. Ct. 2077, 2088-89 (2014).

6

and federal protection, leaving them without power to

protect the welfare of their children and the safety of

their people. This is the ultimate intrusion on sovereignty. Clear evidence of congressional intent is necessary to enact such a change.

III. The Tribes’ Authority over the Reservation’s

Non-Indian Residents Does Not Justify an

Exception to the Rule

Throughout this litigation, the parties advocating

diminishment of the Wind River Reservation have

made false and exaggerated claims of tribal power to

govern non-Indians in Indian country. They claim a

much greater stake in the outcome of this case than

can withstand analysis. This Court has held that almost all tribal authority over non-Indians depends on

consensual relationships or specific grants from Congress.14 The clean air law at issue in this case is an example of the latter.15 However, the EPA grants sought

by the tribes would not confer any regulatory authority

over non-Indians; they would enable the tribes to develop technical capacity to monitor air quality. Moreover, Congress can repeal or modify the law at any time,

and the agency itself must approve tribal authority.16

14

Plains Commerce Bank v. Long Family Land & Cattle Co.,

554 U.S. 316 (2008); Montana v. United States, 450 U.S. 544

(1981); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

As these opinions show, tribes do not agree with these rulings, but

the Court has been consistent.

15

42 U.S.C. § 7410(o).

16

See 40 C.F.R. part 49 (2017).

7

And with the State’s vigorous backing, local non-Indians have ample access to seek modification of any statute.

------------------------------------------------------------------

CONCLUSION

For the reasons stated, we urge the Court to grant

review in these cases.

Respectfully submitted,

RICHARD B. COLLINS

Counsel of Record

UNIVERSITY OF COLORADO

401 UCB

Boulder, CO 80309

(303) 492-5493

richard.collins@colorado.edu

ROBERT T. ANDERSON

Charles I. Stone

Professor of Law

Director, Native American

Law Center

UNIVERSITY OF WASHINGTON

SCHOOL OF LAW

Box 353020

Seattle, WA 98195

KRISTEN A. CARPENTER

Council Tree Professor

of Law

UNIVERSITY OF COLORADO

LAW SCHOOL

401 UCB

Boulder, CO 80309

MATTHEW L. M. FLETCHER

Professor of Law and

Director of the Indigenous

Law & Policy Center

MICHIGAN STATE UNIVERSITY

COLLEGE OF LAW

648 North Shaw Lane

East Lansing, MI 48824-1300

CARLA FREDERICKS

Associate Clinical Professor

Director, American Indian

Law Program

UNIVERSITY OF COLORADO

LAW SCHOOL

401 UCB

Boulder, CO 80309

8

CAROLE E. GOLDBERG

Jonathan D. Varat

Distinguished

Professor of Law

UCLA SCHOOL OF LAW

385 Charles E. Young

Drive East,

Los Angeles, CA 90095

JAMES GRIJALVA

Lloyd & Ruth Friedman

Professor of Law Director,

Tribal Environmental

Law Project

UNIVERSITY OF NORTH

DAKOTA SCHOOL OF LAW

215 Centennial Drive

Grand Forks, ND

58202-8357

SARAH KRAKOFF

Raphael J. Moses

Professor of Law

UNIVERSITY OF COLORADO

LAW SCHOOL

401 UCB

Boulder, CO 80309

MARCH 2018

FRANK POMMERSHEIM

Professor of Law

UNIVERSITY OF SOUTH

DAKOTA LAW SCHOOL

414 East Clark Street

Vermillion, SD 57069

WENONA T. SINGEL

Associate Professor of

Law and Associate

Director, Indigenous

Law & Policy Center

MICHIGAN STATE UNIVERSITY

COLLEGE OF LAW

648 North Shaw Lane East

Lansing, MI

48824-1300

ALEXANDER TALLCHIEF SKIBINE

S. J. Quinney Endowed

Professor of Law

UNIVERSITY OF UTAH

SCHOOL OF LAW

South, 383 University St. E

Salt Lake City, UT 84112

CHARLES WILKINSON

Distinguished Professor

and Moses Lasky

Professor of Law

UNIVERSITY OF COLORADO

LAW SCHOOL

401 UCB

Boulder, CO 80309