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

Nos. 17-1159 & 17-1164

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

In The

Supreme Court of the United States

-----------------------------------------------------------------NORTHERN ARAPAHO TRIBE,

Petitioner,

v.

STATE OF WYOMING, ET AL.,

Respondents.

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

Petitioner,

v.

STATE OF WYOMING, ET AL.,

Respondents.

-----------------------------------------------------------------On Petitions for Writs of Certiorari to the United

States Court of Appeals for the Tenth Circuit

-----------------------------------------------------------------BRIEF OF AMICUS CURIAE THE NATIONAL

CONGRESS OF AMERICAN INDIANS

IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------JOHN DOSSETT

NATIONAL CONGRESS OF

AMERICAN INDIANS

1516 “P” Street, N.W.

Washington, DC 20005

STEPHEN R. WARD

Counsel of Record

DANIEL E. GOMEZ

R. DANIEL CARTER

C. AUSTIN BIRNIE

CONNER & WINTERS, LLP

4000 One Williams Center

Tulsa, OK 74172

(918) 586-8978

sward@cwlaw.com

Counsel for Amicus Curiae

March 23, 2018

[Additional Amici Curiae Are Listed on the Inside Cover]

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

ADDITIONAL AMICI CURIAE

Confederated Tribes of the Umatilla Indian Reservation

Eastern Shawnee Tribe of Oklahoma

Great Plains Tribal Chairmen’s Association

Habematolel Pomo of Upper Lake

Inter Tribal Association of Arizona

Jamestown S’Klallam Tribe

Kickapoo Tribe in Kansas

Lenape Indian Tribe of Delaware

Navajo Nation

Oglala Sioux Tribe

Quapaw Tribe of Oklahoma (the O-Gah-Pah)

Rincon Band of Luiseño Indians

Rosebud Sioux Tribe

Sac and Fox Nation

Sault Ste. Marie Tribe of Chippewa Indians

Seneca Nation

Stillaguamish Tribe of Indians

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

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

ii

INTEREST OF THE AMICUS CURIAE .............

1

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

2

REASONS FOR GRANTING THE WRIT............

4

I.

The Tenth Circuit’s Decision Has Again

Unsettled This Court’s Jurisprudence

Applicable to Legal Challenges to Reservation Boundaries .....................................

4

A. An Era of Uncertainty Leading to a

Correction by This Court .....................

5

B. Uncertainty in the Decades Since

Solem and the Court’s Correction in

Parker ..................................................

9

II.

Changes in the Established Diminishment Jurisprudence Have Far-Reaching

Impacts on the Rights of Indian People

and Tribes .................................................. 14

III.

The Tenth Circuit’s Decision Warrants

Review Because It Conflicts with this

Court’s Diminishment Framework and

Invites New Challenges to Tribal SelfGovernance ................................................ 19

CONCLUSION..................................................... 24

ii

TABLE OF AUTHORITIES

Page

Cases

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

(1920) .........................................................................5

Beardslee v. United States, 387 F.2d 280 (8th Cir.

1967) ..........................................................................5

Cayuga Indian Nation of New York v. Seneca

Cnty., 260 F. Supp. 3d 290 (W.D.N.Y. 2017) ...... 10, 21

Cayuga Indian Nation of New York v. Village of

Union Springs, 317 F. Supp. 2d 128 (N.D.N.Y.

2004) .................................................................. 10, 21

Choate v. Trapp, 224 U.S. 665 (1912) ...........................8

Choctaw Nation v. United States, 119 U.S. 1

(1886) .........................................................................7

City of New Town v. United States, 454 F.2d 121

(8th Cir. 1972)............................................................6

Colo. River Indian Tribes v. Town of Parker, 705

F. Supp. 473 (D. Ariz. 1989) ....................................11

Confederated Band of Ute Indians v. United

States, 64 F. Supp. 569 (Ct. Cl. 1946) .......................5

Confederated Salish & Kootenai Tribes of the

Flathead Reservation v. Namen, 665 F.2d 951

(9th Cir. 1982)............................................................7

Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334 (9th Cir.

1996) ..................................................................... 10

Conroy v. Aniskoff, 507 U.S. 511 (1993) ................... 11

iii

TABLE OF AUTHORITIES – Continued

Page

DeCoteau v. District Cnty. Court for the Tenth

Judicial Circuit, 420 U.S. 425 (1975) ................... 6, 7

Dick v. United States, 208 U.S. 340 (1908) ...................6

Duncan Energy Co. v. Three Affiliated Tribes of

Fort Berthold Reservation, 27 F.3d 1294 (8th

Cir. 1994) .................................................................10

Ellis v. Page, 351 F.2d 250 (10th Cir. 1965)..................5

Hackford v. Utah, 845 F.3d 1325 (10th Cir.

2017) .................................................................. 10, 21

Hagen v. Utah, 510 U.S. 399 (1994) ........................ 9, 11

Henson v. Santander Consumer USA, Inc., 137

S. Ct. 1718 (2017) ................................................. 12

In re Kansas Indians, 72 U.S. 737 (1866) ....................7

Johnson v. Gearlds, 234 U.S. 422 (1914) ......................6

Jones v. Meehan, 175 U.S. 1 (1899)...............................7

Leech Lake Band of Chippewa Indians v. Herbst,

334 F. Supp. 1001 (D. Minn. 1971)............................6

Leech Lake Band v. Cass Cnty., 108 F.3d 820 (8th

Cir. 1997), aff’d in part and rev’d in part on

other grounds, 524 U.S. 103 (1998) .........................10

Lower Brule Sioux Tribe v. South Dakota, 711

F.2d 809 (8th Cir. 1983) .............................................6

Mattz v. Arnett, 412 U.S. 481 (1973) ............................6

McClanahan v. State Tax Comm’n of Ariz., 411

U.S. 164 (1973) ..........................................................8

iv

TABLE OF AUTHORITIES – Continued

Page

Melby v. Grand Portage Band of Chippewa, No.

CIV 97-2065, 1998 WL 1769706 (D. Minn.

Aug. 13, 1998) ..........................................................10

Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017) .... 9, 21

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

Oneida Indian Nation of New York v. City of

Sherill, 337 F.3d 139 (2d Cir. 2003), rev’d on

other grounds, 554 U.S. 197 (2005) ................... 10, 21

Osage Nation v. Irby, 597 F.3d 1117 (10th Cir.

2010) .................................................................. 10, 21

Perrin v. United States, 232 U.S. 478 (1914) ................6

Pittsburg & Midway Coal Mining Co. v. Yazzie,

909 F.2d 1387 (10th Cir. 1990) ................................10

Red Lake Band v. Minnesota, 614 F.2d 1161 (8th

Cir. 1980) ...................................................................7

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

(1977) ................................................................. 6, 7, 8

Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351 (1962) .....................................5

Shawnee Tribe v. United States, 423 F.3d 1204

(10th Cir. 2005).................................................. 10, 21

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

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

329 (1998) ..................................................................9

Thompson v. Cnty. of Franklin, 987 F. Supp. 111

(N.D.N.Y. 1997) ........................................................10

v

TABLE OF AUTHORITIES – Continued

Page

Tooisgah v. United States, 186 F.2d 93 (10th Cir.

1950) ..........................................................................5

United States ex rel. Condon v. Erickson, 478

F.2d 684 (8th Cir. 1973) .............................................6

United States ex rel. Cook v. Parkinson, 396

F. Supp. 473 (D.S.D. 1975) ........................................6

United States v. Celestine, 215 U.S. 278 (1909) ........ 5, 8

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

Cir. 1987), reh’g denied, 836 F.2d 1086, reh’g

granted, vacated in part, 836 F.2d 1088 (8th

Cir. 1987) .................................................................10

United States v. Jackson, 853 F.3d 436 (8th Cir.

2017) .................................................................. 10, 21

United States v. Long Elk, 565 F.2d 1032 (8th

Cir. 1977) ...................................................................6

United States v. Minnesota, 466 F. Supp. 1382

(D. Minn. 1979) ..........................................................7

United States v. Southern Pac. Transp. Co., 543

F.2d 676 (9th Cir. 1976) .............................................6

United States v. Webb, 219 F.3d 1127 (9th Cir.

2000) ........................................................................10

White Earth Band of Chippewa Indians v. Alexander, 683 F.2d 1129 (8th Cir. 1982) ........................6

Wisconsin v. Stockbridge-Munsee Cmty., 554

F.3d 657 (7th Cir. 2009) ............................... 10, 12, 21

Wyoming v. U.S. Envtl. Prot. Agency, et al., Nos.

14-9512 & 14-9514 slip op. (Feb. 22, 2017) .............19

vi

TABLE OF AUTHORITIES – Continued

Page

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010

(8th Cir. 1999).................................................... 10, 11

Yankton Sioux Tribe v. Podhradsky, 606 F.3d 985

(8th Cir. 2010).................................................... 10, 21

STATUTES

18 U.S.C. § 1151 ..........................................................17

Indian Child Welfare Act, 25 U.S.C. §§ 1901 et

seq. ...........................................................................18

25 U.S.C. § 1911(a) ......................................................18

National Historic Preservation Act, 54 U.S.C.

§§ 302702 & 300319 ................................................16

Dawes Act of 1887, 24 Stat. 390 (1887)........................5

Pub. L. No. 90-284, § 406, 82 Stat. 73 (codified at

25 U.S.C. § 1321 et seq.) ..........................................17

Pub. L. No. 102-137, 105 Stat. 646 (codified at 25

U.S.C. § 1301(2) .......................................................17

Pub. L. No. 113-4, 127 Stat. 54 (Mar. 7, 2013)

(codified, in part, at 25 U.S.C. § 1304) ....................17

RULES AND REGULATIONS

Sup. Ct. R. 37.2(a) .........................................................1

Sup. Ct. R. 37.6 .............................................................1

vii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Bethany R. Berger, Hope for Indian Tribes in the

U.S. Supreme Court?: Menominee, Nebraska v.

Parker, Bryant, Dollar General . . . and Beyond, 2017 U. Ill. L. Rev. 1901 (2017) .....................22

Cohen’s Handbook of Federal Indian Law § 1.04

(2012 ed.) ..................................................... 14, 16, 20

Cohen’s Handbook of Federal Indian Law § 1.06

(2012 ed.) .................................................................20

Cohen’s Handbook of Federal Indian Law § 1.07

(2012 ed.) .................................................................21

Cohen’s Handbook of Federal Indian Law

§§ 3.04 & 9.04 (2012 ed.) .........................................17

Cohen’s Handbook of Federal Indian Law § 6.06

(2012 ed.) .................................................................15

Cohen’s Handbook of Federal Indian Law § 8.04

(2012 ed.) .................................................................15

Cohen’s Handbook of Federal Indian Law § 8.05

(2012 ed.) .................................................................15

Klaus Frantz, Indian Reservations in the U.S.:

Territory, Sovereignty & Socioeconomic Change

(Univ. Chicago Press 1999) .....................................14

Phillip P. Frickey, A Common Law for Our Age

of Colonialism: The Judicial Divestiture of Indian Tribal Auth. Over Nonmembers, 109 Yale

L.J. 1 (1999) ...............................................................8

viii

TABLE OF AUTHORITIES – Continued

Page

Susan D. Campbell, Reservations: The Surplus

Lands Acts & the Question of Reservation

Disestablishment, 12 Am. Indian L. Rev. 57

(1984).................................................................... 23

U.S. Census Bureau, Annual Estimates of the

Resident Population by Sex, Age, Race & Hispanic Origin for the U.S.: Apr. 1, 2010 to July

1, 2016 (June 2017) .................................................15

U.S. Census Bureau, Facts for Features: Am. Indian & Alaska Native Heritage Month, Nov.

2013 (October 31, 2013) ..........................................15

United States Environmental Protection Agency,

Profile of Tribal Government Operations

(Summer 2007) ........................................................18

Veronica E. Tiller, Tiller’s Guide to Indian

Country: Economic Profiles of Indian Reservations (3d ed. 2015) ............................................ 15

1

INTEREST OF THE AMICUS CURIAE1

The National Congress of American Indians

(“NCAI”), is the oldest and largest national organization that represents and advocates for American Indians and tribal governments. NCAI’s membership

includes more than 250 Native American tribes and

Alaskan Native villages, and countless individual

tribal citizens. NCAI has a longstanding interest and

involvement in matters relating to tribal sovereignty

and jurisdiction, and in supporting tribes’ and Indian

peoples’ rights to self-determination and self-governance – both dependent on tribal governments’ ability

to exercise their inherent governmental powers.

Since 1944, NCAI has advised tribal, federal, and

state governments on a broad range of tribal and individual Indian issues, including reservation disestablishment and diminishment. NCAI is thus wellpositioned to provide this Court with critical context

on the law applicable to the recognition, disestablishment, and diminishment of Indian reservations, and

1

All parties participating in this appeal have consented to

the filing of this brief, either through blanket consents on file with

the Clerk of Court or in writing to counsel for amicus curiae.

Counsel for the amicus notified all parties in writing of the

NCAI’s intention to file this brief at least 10 days prior to filing.

See Sup. Ct. R. 37.2(a). The City of Riverton, Wyoming, an intervenor in the case before the Tenth Circuit, responded through

counsel that it has elected to opt out of this appeal, and that it

does not believe its consent is required.

No counsel for a party authored this brief in whole or in part,

and no person other than amicus curiae and its counsel has made

monetary contribution to the preparation or submission of this

brief. See Sup. Ct. R. 37.6.

2

the importance to tribal governments and individual

Indians of the development of the law in this area.

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

SUMMARY OF THE ARGUMENT

Whereas states and municipalities can function

with confidence about their territorial jurisdiction, Indian tribes face the ever-present specter that by exercising their governmental powers they may draw

challenges to their reservation boundaries, and that

their Indian country could be terminated at any time

as a result of a judicial construction of historical “surplus land acts.” Interpreting these laws a century or

more after the fact presents unique legal difficulties, in

view of the often sparse legislative history and absence

of any clear historical record. But the potentially devastating impact of these judicial determinations

makes this issue – again before the Court – among the

most important to American Indian tribes and their

citizens today.

Challenges to Indian tribes’ reservations did not

begin to emerge with any frequency until relatively recently, causing this Court to attempt to bring consistency and fairness to often difficult questions rooted

long in the past and during eras of now-discredited

federal policies toward Indian nations. In Solem v.

Bartlett, 465 U.S. 463 (1984), a three-part framework

was established to determine whether Congress had

diminished a reservation or had simply opened it up

to non-tribal settlers. The Court emphasized that

3

disestablishment could not be found if there was any

uncertainty concerning Congress’s intent. Subsequently, however, the analysis was applied inconsistently in the federal courts.

It was under these circumstances that this Court’s

decision just two years ago in Nebraska v. Parker, 136

S. Ct. 1072 (2016), represented new, clear guidance

providing certainty in this area. The Parker decision

reaffirmed that only language such as that “providing

for the total surrender of tribal claims in exchange for

a fixed payment” or for returning land to the public domain can evince Congress’s intent to diminish a reservation, and even then such language creates an almost

insurmountable presumption of diminishment. Tribes

could now look to the surplus lands acts affecting their

reservations, and determine that their boundary lines

were intact if language of cessation was not accompanied by a fixed payment or in the absence of language

transferring Indian land to a public purpose. After a

long period of uncertainty, the Parker decision marked

the beginning of a new era.

Only two years after Parker, the Tenth Circuit

panel’s decision has thrown certainty in this important

area of federal law into disarray. Its upshot is that the

word “cede” alone can mean diminishment, and the

lack of a sum-certain payment or “public domain” language largely is irrelevant. If the decision stands,

tribes will again face the possibility that an exercise of

their governmental jurisdiction could result in a diminished reservation should a legal challenge arise to

which they may not be in a position to fairly defend.

4

A clear, consistent analysis applied to surplus

lands acts – and uniformly applied by the courts of appeals – is necessary to further tribal self-governance

and self-determination. Amicus curiae the NCAI

strongly supports the Petitioners’ request for review.

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

REASONS FOR GRANTING THE WRIT

I.

The Tenth Circuit’s Decision Has Again

Unsettled This Court’s Jurisprudence Applicable to Legal Challenges to Reservation

Boundaries

This case returns to the forefront a serious challenge for Indian nations that has recurred throughout

their American experience – namely, how to protect

their Indian lands – their “Indian country” – from being disestablished, diminished, or, effectively terminated through legal challenges. Such legal attacks on

tribal jurisdiction did not arise with any regularity

until long after reservations were created, and the

emergent analytical framework at times was unclear

or even incoherent, and not protective of tribes’ sovereignty and property rights. This led to the Court’s

corrective decision in Parker, which restored predictability, certainty, and fundamental fairness into this important area of law.

5

A. An Era of Uncertainty Leading to a

Correction by This Court

The United States government began creating

Indian reservations in the mid-19th century, but litigation to disestablish or diminish Indian country jurisdiction did not become frequent until well over 100

years later. Such challenges typically rest, as in this

case, on the interpretation of statutes known as “surplus lands acts,” which were enacted following the

Dawes Act of 18872 to provide for the opening of Indian

lands to settlers. The analysis of these statutes unquestionably presented a difficult problem of interpretation, owing to their historic nature and the dramatic

shifts in federal Indian policy that had occurred over

time.

Before the 1970s, the federal courts were confronted with the issue of diminishment or disestablishment of reservations in only a handful of cases.3

2

24 Stat. 390 (1887).

See, e.g., Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351 (1962) (1906 Act diminished Colville Indian

Reservation); Beardslee v. United States, 387 F.2d 280 (8th Cir.

1967) (Blackmun, J.) (portion of Rosebud Sioux Reservation not

disestablished); Ellis v. Page, 351 F.2d 250 (10th Cir. 1965) (Cheyenne and Arapaho Reservation disestablished); Tooisgah v.

United States, 186 F.2d 93 (10th Cir. 1950) (1900 Act disestablished Kiowa, Comanche, and Apache Reservation); Confederated

Band of Ute Indians v. United States, 64 F. Supp. 569 (Ct. Cl. 1946)

(1880 Act diminished Ute Reservation); see also, e.g., Ash Sheep

Co. v. United States, 252 U.S. 159 (1920) (tribal members released

possessory rights to Crow Indian Reservation, but lands were still

“Indian lands”); United States v. Celestine, 215 U.S. 278 (1909)

(1854 and 1855 treaties provided only for conditional alienation

3

6

However, in the 1970s the federal courts began to

be confronted with the issues of diminishment and

disestablishment much more frequently,4 and the

framework for evaluating such cases began to emerge,

particularly in a trilogy of cases, Mattz v. Arnett,

DeCoteau v. District County Court for the Tenth Judicial Circuit, and Rosebud Sioux Tribe v. Kneip.5 This

trend of an increasing number of diminishment and

disestablishment cases continued into the early years

of the 1980s.6

of land within Tulalip Indian Reservation); Johnson v. Gearlds,

234 U.S. 422 (1914) (1864 and 1867 treaties ceded various portions of Chippewa Reservation); Perrin v. United States, 232 U.S.

478 (1914) (1894 Act ceded unallotted portions of Yankton Sioux

Indian Reservation); Dick v. United States, 208 U.S. 340 (1908)

(1894 Act ceded unallotted portions of Nez Perce Reservation).

4

See United States v. Long Elk, 565 F.2d 1032 (8th Cir. 1977)

(1913 Act did not diminish Standing Rock Reservation); United

States v. Southern Pac. Transp. Co., 543 F.2d 676 (9th Cir. 1976)

(1906 Act diminished Walker River Reservation); United States ex

rel. Condon v. Erickson, 478 F.2d 684 (8th Cir. 1973) (1908 Act did

not diminish Cheyenne River Reservation); City of New Town v.

United States, 454 F.2d 121 (8th Cir. 1972) (1910 Act did not alter

boundaries of Fort Berthold Indian Reservation); United States ex

rel. Cook v. Parkinson, 396 F. Supp. 473 (D.S.D. 1975) (1910 Act

diminished Pine Ridge Reservation); Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp. 1001 (D. Minn. 1971) (1889

Nelson Act did not disestablish Leech Lake Reservation).

5

Rosebud Sioux Tribe, 430 U.S. 584 (1977) (1904, 1907, and

1910 Acts diminished Rosebud Reservation); DeCoteau, 420 U.S.

425 (1975) (1891 Act diminished Lake Traverse Indian Reservation); Mattz, 412 U.S. 481 (1973) (1892 Act did not terminate Klamath River Reservation).

6

See, e.g., Lower Brule Sioux Tribe v. South Dakota, 711 F.2d

809 (8th Cir. 1983) (Flood Control Acts did not diminish Lower

Brule Sioux Reservation); White Earth Band of Chippewa Indians

7

By that time, this Court was confronting many

challenges in these cases, including determining Congress’s intent from the language of historic statutes, as

opposed to relying on often sparse legislative history

reflecting discredited and abandoned allotment and

other policies. In the modern diminishment analysis

the Court appropriately drew on much older fundamentals, including the canons of federal Indian law.7

Since the 19th century, the Court had recognized that

language in Indian treaties that might tend to undercut tribal authority and sovereignty was to be interpreted narrowly and in such a way as would have been

understood by the Indian signatories.8 These canons

v. Alexander, 683 F.2d 1129 (8th Cir. 1982) (1889 Act diminished

portion of White Earth Indian Reservation); Confederated Salish

& Kootenai Tribes of the Flathead Reservation v. Namen, 665 F.2d

951 (9th Cir. 1982) (1904 Act did not disestablish Flathead Reservation); United States v. Minnesota, 466 F. Supp. 1382 (D. Minn.

1979), aff ’d Red Lake Band v. Minnesota, 614 F.2d 1161 (8th Cir.

1980) (1889 and 1904 Acts diminished Red Lake Reservation).

7

See DeCoteau, 420 U.S. at 444; Rosebud Sioux Tribe, 430

U.S. at 586.

8

See, e.g., Jones v. Meehan, 175 U.S. 1, 11 (1899); Choctaw

Nation v. United States, 119 U.S. 1, 27-28 (1886); In re Kansas Indians, 72 U.S. 737, 760 (1866). A leading commentator has noted

that

“[t]aken together, these concepts require an inquiry

into whether the Indians understood that they were

ceding away a particular interest, rather than whether

the United States understood that it was granting that

interest to the tribe or whether the language of the

treaty provided any seemingly objective answer to this

question.”

8

were extended later to statutes as well, such that

ambiguities in the language that affect the rights of

Indians and tribes are to be construed narrowly to

protect tribal interests.9 In the context of surplus

lands cases, this Court had long applied these canons

to require that “the legislation of Congress is to be construed in the interest of the Indian,”10 and accordingly

that Congress must clearly express an “intent to

change boundaries” before a reservation can be found

to be “diminished.”11

In 1984 the Court issued its seminal decision in

Solem v. Bartlett,12 which, consistent with the Indian

canons, set forth the now-familiar three-part test to be

applied when determining whether a reservation has

been diminished or disestablished, with primary emphasis placed on the plain language of the statute and

the language of cession.13 On its face, this primarily

Phillip P. Frickey, A Common Law for Our Age of Colonialism: The

Judicial Divestiture of Indian Tribal Auth. Over Nonmembers, 109

Yale L.J. 1, 9 n.33 (1999).

9

See, e.g., McClanahan v. State Tax Comm’n of Ariz., 411 U.S.

164, 172-73 (1973); Choate v. Trapp, 224 U.S. 665, 675 (1912).

10

Celestine, 215 U.S. at 290.

11

Rosebud Sioux Tribe, 430 U.S. at 615.

12

Solem, 465 U.S. 463 (1908 Act did not diminish the Cheyenne River Sioux Reservation).

13

As the Court explained,

“[o]ur analysis of surplus land acts requires that Congress clearly evince an intent to change boundaries before diminishment will be found. The most probative

evidence of congressional intent is the statutory language used to open the Indian lands. Explicit reference

to cession or other language evidencing the present and

9

textualist framework provided great promise to tribes

because it seemed to introduce a measure of certainty

into how tribes could evaluate and understand their

jurisdictional boundaries in light of a plain reading of

the surplus land acts, and tribes could thus be reasonably confident that their jurisdictional boundaries

would not be disturbed by later judicial decisions.

B. Uncertainty in the Decades Since Solem

and the Court’s Correction in Parker

Tribal governments’ hope of certainty in the

field of diminishment jurisprudence provided by the

Solem decision quickly proved ephemeral. After this

Court issued its decision in Solem, the number of

diminishment and disestablishment cases increased

substantially. More than 20 such cases have been decided by this Court and the lower federal courts since

Solem.14 Although guided by the basic framework

total surrender of all tribal interests strongly suggests

that Congress meant to divest from the reservation all

unallotted opened lands. When such language of cession is buttressed by an unconditional commitment

from Congress to compensate the Indian tribe for its

opened land, there is an almost insurmountable presumption that Congress meant for the tribe’s reservation to be diminished.”

Id. at 470-71 (internal quotation marks omitted) (citations omitted).

14

See Parker, 136 S. Ct. 1072 (Omaha Indian Reservation

not diminished); South Dakota v. Yankton Sioux Tribe, 522 U.S.

329 (1998) (1894 Act diminished Yankton Sioux Reservation); Hagen v. Utah, 510 U.S. 399 (1994) (1902 Act diminished Uintah Indian Reservation); Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017)

10

(Muscogee (Creek) Reservation not disestablished); United States

v. Jackson, 853 F.3d 436 (8th Cir. 2017) (1905 Act did not diminish

Red Lake Reservation); Hackford v. Utah, 845 F.3d 1325 (10th Cir.

2017) (1910 Act diminished the Uintah and Ouray Indian Reservation); Yankton Sioux Tribe v. Podhradsky, 606 F.3d 985 (8th Cir.

2010) (1894 Act did not disestablish Yankton Sioux Reservation);

Osage Nation v. Irby, 597 F.3d 1117 (10th Cir. 2010) (1906 Act disestablished Osage Reservation); Wisconsin v. Stockbridge-Munsee

Cmty., 554 F.3d 657 (7th Cir. 2009) (1871 Act diminished and 1906

Act disestablished Stockbridge-Munsee Reservation); Shawnee

Tribe v. United States, 423 F.3d 1204 (10th Cir. 2005) (1854 Treaty

terminated Shawnee Reservation); Oneida Indian Nation of New

York v. City of Sherill, 337 F.3d 139 (2d Cir. 2003), rev’d on other

grounds, 554 U.S. 197 (2005) (1838 Buffalo Creek Treaty did not

disestablish Oneida reservation); United States v. Webb, 219 F.3d

1127 (9th Cir. 2000) (1894 Act did not diminish Nez Perce Reservation); Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir.

1999) (1894 Act diminished but did not disestablish Yankton

Sioux Reservation); Leech Lake Band v. Cass Cnty., 108 F.3d 820

(8th Cir. 1997), aff ’d in part and rev’d in part on other grounds,

524 U.S. 103 (1998) (Leech Lake Reservation not diminished);

Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334 (9th Cir. 1996) (1886 Executive Order did not diminish Chehalis Indian Reservation); Duncan Energy Co. v. Three

Affiliated Tribes of Fort Berthold Reservation, 27 F.3d 1294 (8th

Cir. 1994) (1910 Act did not diminish Fort Berthold Indian Reservation); Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d

1387 (10th Cir. 1990) (1908 Act and Executive Orders diminished

Navajo Reservation); United States v. Grey Bear, 828 F.2d 1286

(8th Cir. 1987), reh’g denied, 836 F.2d 1086, reh’g granted, vacated

in part, 836 F.2d 1088 (8th Cir. 1987) (1904 Act did not disestablish Devil’s Lake Indian Reservation); Cayuga Indian Nation of

New York v. Seneca Cnty., 260 F. Supp. 3d 290 (W.D.N.Y. 2017)

(1838 Treaty of Buffalo Creek did not diminish Cayuga reservation); Cayuga Indian Nation of New York v. Village of Union

Springs, 317 F. Supp. 2d 128 (N.D.N.Y. 2004) (1838 Treaty of Buffalo Creek did not diminish Cayuga reservation); Melby v. Grand

Portage Band of Chippewa, No. CIV 97-2065, 1998 WL 1769706

(D. Minn. Aug. 13, 1998) (1889 Nelson Act did not disestablish

Grand Portage Reservation); Thompson v. Cnty. of Franklin, 987

11

established in Solem and its progeny, these post-Solem

cases increasingly were decided unevenly, and the results seemingly rested on more of an ad hoc analysis

than on a consistent framework.

In part, such inconsistency was doubtless due to

the variations in statutory language employed in the

various treaties and acts of Congress – it was hardly

conceivable when these statutes were passed that they

would give rise to boundary disputes a century later –

and also to the historical peculiarity that when Congress passed the various statutes at issue it almost certainly did not anticipate that federal Indian policy

would change from the allotment system to the very

different framework of tribal reorganization several

decades later.15 The vagaries involved with legislative

histories are precisely why this Court, in its more recent jurisprudence, has strongly preferred reliance on

statutory text. See, e.g., Conroy v. Aniskoff, 507 U.S.

511, 519 (1993) (Scalia, J., concurring) (noting reliance

on legislative history is “more likely to confuse than to

clarify”). The need for textual reliance is especially

F. Supp. 111 (N.D.N.Y. 1997) (1824 and 1825 conveyance agreements diminished St. Regis Reservation); Colo. River Indian

Tribes v. Town of Parker, 705 F. Supp. 473 (D. Ariz. 1989) (1908 Act

did not diminish Colorado River Indian Reservation).

15

See Hagen, 510 U.S. at 426 (Blackmun, J., dissenting) (“As

a result of the patina history has placed on the allotment Acts, the

Court is presented with questions that their architects could not

have foreseen.”); Yankton Sioux Tribe, 188 F.3d at 1028 (“The Act

could not foresee all that would happen in the future with population movement, state development, and changing Indian policy. . . .”).

12

strong here where Congress did not consider disestablishment cases at the time it passed the surplus lands

acts. See, e.g., Henson v. Santander Consumer USA,

Inc., 137 S. Ct. 1718, 1725 (2017) (Gorsuch, J., for a

unanimous Court) (explaining the Court should not

“speculat[e] about what Congress might have done had

it faced a question that, on everyone’s account, it never

faced”).

However, it became readily apparent that this inconsistency was also the result of courts taking differing approaches in applying the Solem test, with many

courts giving undue weight to legislative history and

other factors as opposed to the plain language of the

statute.16 The result was that the outcome of any particular boundary dispute was anything but predictable. Suffice it to say, when confronted with such an

uncertain terrain presented by the patchwork of case

law on this subject, a greater measure of certainty was

needed for tribes to exercise their sovereignty and conduct their affairs.

This Court took a step forward toward providing

such needed certainty in its recent decision in Parker,

where it set forth a clearer framework, at least with

respect to a certain subset of diminishment and disestablishment cases. 136 S. Ct. at 1079-80. The Parker

decision, decided on statutory language and circumstances not unlike those underlying this case, represented – and was regarded by Indian tribes as – a

major correction in this jurisprudence. In Parker, the

16

See, e.g., Stockbridge-Munsee Cmty., 554 F.3d at 664-65.

13

Court clearly and succinctly underscored the specific

roles in the framework to be given to each of the three

factors. See Parker, 136 S. Ct. at 1079-81.

Specifically, in reaffirming that only clear language such as that “providing for the total surrender

of tribal claims in exchange for a fixed payment” and/or

restoring or transferring tribal lands to the public domain could evince Congress’s intent to diminish a reservation, this Court gave far greater certainty to the

analysis. Id. at 1079. Parker was thus heralded by

tribes for restoring a measure of certainty lacking in

the rulings since Solem that sometimes appeared inconsistent and ad hoc. The Parker decision made it

once again possible to apply a more objective and predictable analysis to the statutory text to determine

whether a surplus act potentially diminished or disestablished reservation boundaries.

The result was that tribes could review their surplus land acts and determine if those acts contained

certain language, such as language of cession without

a sum certain payment or without an intent to transfer

the land for public use. If an act fit that category, then

under Parker a tribe could be reasonably confident that

the reservation boundaries would not be disturbed or

upended by judicial decision. However, this certainty

has been eviscerated by the Tenth Circuit’s decision,

which employed an unpredictable analysis that failed

to give proper emphasis to the plain language of the

statute.

14

II.

Changes in the Established Diminishment

Jurisprudence Have Far-Reaching Impacts

on the Rights of Indian People and Tribes

What is at risk for American Indian tribal governments in reservation diminishment and disestablishment cases is not merely changes to boundary lines on

maps, but the loss of their traditional and historic land

areas, and much more. Indian lands represent tribal

jurisdiction, and the loss of reservation or other lands

terminates tribes’ Indian country jurisdiction under

federal law. But far more than the abrupt loss of jurisdiction, the loss of reservation lands, from the perspective of tribes, repeats the loss of their homelands and

Indian sovereignty that occurred once before in American history.17

Today in the era of self-governance, Indian tribes

function the same as any other governments, exerting

the same types of jurisdiction and performing the same

types of services. Services offered by many of today’s

573 federally recognized Indian tribes are indistinguishable from those of states, including services

17

The federal policies in the late 19th century intended to

remove Indian nations from their homelands and confine Indians

to reservations represented an era “in which the American Indian

was deprived of political, economic, and cultural autonomy and

subjected to very strong pressures to assimilate,” and “ ‘[k]ill the

Indian in him and save the man’ was the slogan, and any means

to this end seemed acceptable.” Klaus Frantz, Indian Reservations

in the U.S.: Territory, Sovereignty & Socioeconomic Change at 17

(Univ. Chicago Press 1999). See generally Cohen’s Handbook of

Federal Indian Law § 1.04, at 71-78 (2012 ed.) (surveying allotment and assimilation era in federal Indian policy) [hereinafter

Federal Indian Law].

15

related to education, law enforcement, emergency response, physical and mental health, transportation infrastructure, courts and justice systems, elder care,

housing, and family and social assistance, among

many others.18 Tribes provide these services among an

estimated 6.7 million Native Americans in the United

States, about 22% percent of whom live in Indian country.19

Any loss of a tribe’s Indian country has the same

impact that a state would suffer if its land were

determined to be within the borders of another state.

As is the case with other governmental boundaries,

reservation boundaries define tribal jurisdiction, service areas, and the limits within which a state could

attempt to raise revenue to fund essential governmental services.20 See Federal Indian Law § 6.06, at 718.

Thus, when reservation lands are diminished or disestablished, it erodes the authority of a tribe to exercise

18

See generally Veronica E. Tiller, Tiller’s Guide to Indian

Country: Economic Profiles of Indian Reservations (3d ed. 2015)

(surveying services and enterprises of Indian nations).

19

See U.S. Census Bureau, Annual Estimates of the Resident

Population by Sex, Age, Race & Hispanic Origin for the U.S.: Apr.

1, 2010 to July 1, 2016 (June 2017); U.S. Census Bureau, Facts for

Features: Am. Indian & Alaska Native Heritage Month, Nov. 2013

(October 31, 2013).

20

Indian tribes, as governments, have the power to levy

taxes, and many rely on taxation to provide governmental funding. See Federal Indian Law § 8.04, at 718. However, as a result of

allotment, most tribes already have relatively small land areas in

which to develop tax bases, and they face other obstacles in this

area, including concurrent state taxing authority. See id. at § 8.05,

at 728.

16

self-governance, to provide governmental services, and

to raise governmental revenues.

But the loss of tribal reservation lands means

much more to a tribe than just damage to its ability to

govern. Reservations are lands deeply connected to a

tribe’s history and culture. Lands within a tribe’s Indian country contain sacred sites, burial areas, ceremonial grounds, and other historical locations that are

special to a tribe’s culture in a way often not understood or respected by non-Indian society. Thus with the

diminishment of reservation lands comes the loss of

tribal culture and identity.21 The United States government recognized this early on when attempting to forcibly assimilate Indian people into American society by

enacting the allotment policy leading to the loss of

some 90 million acres of tribal land. See Federal Indian

Law § 1.04, at 72-74. When courts make a modern-day

determination that reservations have been diminished, it is viewed by Indian people as a renewal or continuation of the historical federal policies designed to

erase tribal autonomy and identity.

The significance of reservation boundaries to

tribal self-governance and identity is further demonstrated by tribes’ rights to assert jurisdiction over

members on certain criminal, civil, and regulatory

21

Lands losing reservation status could immediately result

in the inability of tribes to protect these historical cultural sites,

because the jurisdiction of Tribal Historic Preservation Officer

programs is determined by the boundaries of a tribe’s reservation

under the National Historic Preservation Act. See 54 U.S.C.

§§ 302702 & 300319.

17

matters within their Indian country. Outside of reservation boundaries, tribes exercise little, if any, jurisdiction over their members.22 See Federal Indian Law

§ 3.04, at 183. Tribes have authority to exercise criminal jurisdiction over their members when the crime occurs in Indian country, which is defined to include

lands “within the limits of any Indian reservation.” See

18 U.S.C. § 1151. Thus, if a reservation boundary is disestablished a tribe is forced to cede criminal jurisdiction over its members to state authorities. This cession

of criminal jurisdiction to state authorities directly

contradicts the federal laws Congress has enacted to

protect tribal self-governance over criminal matters.23

The loss of reservation lands also diminishes a

tribe’s civil and adjudicatory jurisdiction, such as that

over matters related to family disputes, divorce, probate, land use, and other general civil and regulatory

matters. One illustration of the negative impacts on

self-governance and identity caused by a loss of such

jurisdiction is the loss of a tribe’s authority derived

22

For example, reservation boundaries largely determine the

scope of tribes’ criminal jurisdiction. See 18 U.S.C. § 1151. See generally Federal Indian Law §§ 3.04 & 9.04, at 183 & 765 (discussing tribal criminal jurisdiction).

23

See, e.g., Pub. L. No. 102-137, 105 Stat. 646 (codified at 25

U.S.C. § 1301(2) (the “Duro-Fix”); Pub. L. No. 90-284, § 406, 82

Stat. 73 (codified at 25 U.S.C. § 1321 et seq.) (ending Public Law

280 state jurisdiction over tribes without tribal consent); Pub. L.

No. 113-4, 127 Stat. 54 (Mar. 7, 2013) (codified, in part, at 25 U.S.C.

§ 1304) (the “Violence Against Women Act”).

18

from the Indian Child Welfare Act.24 25 U.S.C. §§ 1901

et seq. (“ICWA”). Rights of an Indian tribe to exercise

jurisdiction in child custody proceedings involving an

Indian child is directly tied to situations in which the

child is “domiciled within the reservation of such

tribe. . . .” See 25 U.S.C. § 1911(a). With the loss of reservation lands, tribes lose primary jurisdiction over

adoption and other proceedings relating to Indian children, thus depriving tribal families of the protections

provided by ICWA.

The circumstances underlying this case serve as a

prime example of the type of sovereign rights tribes

stand to lose through reservation diminishment or disestablishment. This case arose because the tribes were

attempting to assume congressionally recognized authority to participate in federal environmental programs.25 A tribe’s management of environmental

programs is vital to ensure the health and safety of the

people who rely on reservation resources. It should not

24

Recognizing that “there is no resource more vital to the

continued existence and integrity of Indian tribes than their children,” Congress enacted ICWA to deter the irreversible detrimental impacts on removing Native American children from

tribal families by giving tribes the authority to determine placement and treatment of neglected and abandoned Indian children.

See 25 U.S.C. § 1901.

25

The United States Environmental Protection Agency

(the “EPA”) reports that hundreds of tribes have assumed some

role in environmental protection in Indian country, a strong indication of the potentially far-reaching implications of the Tenth

Circuit’s decision. See EPA, Profile of Tribal Government Operations (Summer 2007) (available at http://purl.access.gpo.gov/

GPO/LPS100783).

19

be forgotten that tribes and their people often were

forced onto reservations a fraction of the size of (and

often far-away from) their home territories. If a tribe’s

home territory is no longer considered a reservation,

the tribe loses the ability even to monitor conditions

that may threaten its lands and resources.

Indian reservations are the last remaining place

on earth where tribes may exercise their governmental

authority, where Indian people can participate in tribal

culture subject only to their tribe’s authority, and

where tribal citizens may take advantage of many of

the services offered by their tribal governments. Even

though Congress ended its policy of termination and

assimilation long ago, federal courts continue to shrink

Indian reservations today, causing the deterioration of

self-governance and tribal identity. With the Tenth Circuit’s new “low-water mark in diminishment jurisprudence,” the eradication of tribal lands and identity will

only be exacerbated.26

III. The Tenth Circuit’s Decision Warrants Review Because It Conflicts with this Court’s

Diminishment Framework and Invites New

Challenges to Tribal Self-Governance

Long ago the federal government turned away

from ill-conceived policies designed to reduce reservation land bases, to terminate tribal nations, and to

assimilate Indians into the broader society. Yet, no

26

Wyoming v. U.S. Envtl. Prot. Agency, et al., Nos. 14-9512 &

14-9514 slip op. at 44 (Feb. 22, 2017) (Lucero, J., dissenting).

20

legal issue today can pose a greater threat to tribal

governance and sovereignty than the ongoing possibility of judicial termination of Indian country. The Tenth

Circuit’s decision, contrary to Parker, lowers the requirements for a diminishment finding and reintroduces uncertainty into this jurisprudence, and thereby

invites new challenges to Indian country that tribes

will bear the sometimes difficult burden of defending.

Since the turn of the 20th century, the federal

courts have addressed reservation disestablishment or

diminishment claims (directly or indirectly) in approximately 50 reported decisions.27 Of these cases, only

about six were decided before 1960 and only about

three more before 1970. During most of this same time

period, the federal government pursued official policies

that were, from the perspective of American Indian

people and tribes, disastrous, including allotment and

assimilation (1871 to 1928) and termination (1943 to

1961).28

The era of self-determination and self-governance

in Indian policy began in the 1960s, and subsequently

Indian nations began gradually to rebuild and

strengthen their governments and to pursue economic

development on their reservations and within their

27

See supra notes 3-6 & 14.

See generally Federal Indian Law §§ 1.04 & 1.06, at 71 &

84 (surveying periods of 20th century federal Indian policy).

28

21

Indian country jurisdictions.29 The vast majority of the

reported decisions in litigation addressing challenges

to reservation boundaries – in some 38 cases – have

been made since 1970. Indeed, at least 12 of these cases

have reached a decision stage since 2000.30

Perhaps unremarkably, this suggests that as tribal governments have advanced in the self-governance

era, and increasingly have asserted their inherent jurisdiction to a greater extent and have increasingly expanded services, the challenges to their Indian country

jurisdiction, including by non-Indian governments,

have increased. This underscores the importance of the

primary issue of federal law in this case – the need to

return the framework for analyzing surplus lands acts

to the certainty recognized in Parker and to a more consistent and uniform application in the courts of appeals.

The culmination of a half-century of decisions addressing diminishment jurisprudence was Parker, a

29

See generally Federal Indian Law § 1.07, at 93 (discussing

development and purpose of the federal policy of self-determination).

30

See Parker, 136 S. Ct. 1072 (2016); Murphy, 875 F.3d 896

(10th Cir. 2017); Jackson, 853 F.3d 436 (8th Cir. 2017); Hackford,

845 F.3d 1325 (10th Cir. 2017); Yankton Sioux Tribe, 606 F.3d 985

(8th Cir. 2010); Irby, 597 F.3d 1117 (10th Cir. 2010); StockbridgeMunsee Cmty., 554 F.3d 657 (7th Cir. 2009); Shawnee Tribe, 423

F.3d 1204 (10th Cir. 2005); City of Sherill, 337 F.3d 139 (2d Cir.

2003); Webb, 219 F.3d 1127 (9th Cir. 2000); Cayuga Indian Nation,

260 F. Supp. 3d 290 (W.D.N.Y. 2017); Village of Union Springs, 317

F. Supp. 2d 128 (N.D.N.Y. 2004).

22

decision that was well-received in Indian country.31 It

permitted tribal governments faced with challenges to

their jurisdictional boundaries to evaluate – and defend – them under reasonably straightforward aspects

of the text commonly found in surplus lands acts, including whether such enactments provided for a sumcertain to be paid for lands and whether such laws contained language returning Indian land to the public

domain. If Parker set forth a clear means by which

tribal governments can determine the status of their

boundaries, the Tenth Circuit panel’s decision does the

opposite. The undue reliance it places on language of

cession – typical language in many surplus lands acts

– provides no indication of whether Indian country

boundaries are subject to termination.

The Tenth Circuit’s decision, if permitted to stand,

promises to make more Indian country boundaries the

subject of challenges. This can be particularly threatening to tribal governments that lack sufficient resources to adequately defend such legal challenges.

Moreover, these claims can present an extremely difficult legal problem to defend. These challenges are

based not on factual errors in surveys or some other

objective criteria, but on long-delayed legal arguments

concerning the meaning of 100-year-old congressional

enactments. Legislative history – to the extent it even

31

See, e.g., Bethany R. Berger, Hope for Indian Tribes in the

U.S. Supreme Court?: Menominee, Nebraska v. Parker, Bryant, Dollar General . . . and Beyond, 2017 U. Ill. L. Rev. 1901, 1920-26,

1938-41 (2017) (discussing strength of the Parker decision in supporting sovereignty and examining how it might have resulted in

different results in past diminishment adjudications).

23

exists – and other external evidence that might be otherwise be available originated in an era in which the

federal government was attempting to assimilate or

eliminate Indians and tribes, and therefore often provides no valid interpretative information about the actual text of these acts.32 To the extent any part of the

legislative history indicates an intent to not diminish

or disestablish a reservation, such ambiguity is dispositive against diminishment or disestablishment. See

Parker, 136 S. Ct. at 1079 (noting legislative history

must be “unequivocal” in support of diminishment).

This case presents the needed opportunity for the

Court to re-affirm the clarity it provided in Parker concerning the application of statutory text in the interpretation of surplus lands acts. Such a reaffirmation

would go a long way in providing security and certainty for Indian tribes that are the subject of statutes

that did nothing more than open their reservations to

non-Indian settlors. A return to the pre-Parker era of

uncertainty would result in a wave of new boundary

challenges – each of which would target invaluable

sovereignty rights tribes have increasingly exercised

in the era of self-governance and self-determination.

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

32

See generally Susan D. Campbell, Reservations: The Surplus Lands Acts & the Question of Reservation Disestablishment,

12 Am. Indian L. Rev. 57, 61, 76-96 (1984) (surveying issues relating to legislative histories of surplus lands acts).

24

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JOHN DOSSETT

NATIONAL CONGRESS OF

AMERICAN INDIANS

1516 “P” Street, N.W.

Washington, DC 20005

STEPHEN R. WARD

Counsel of Record

DANIEL E. GOMEZ

R. DANIEL CARTER

C. AUSTIN BIRNIE

CONNER & WINTERS, LLP

4000 One Williams Center

Tulsa, OK 74172

(918) 586-8978

sward@cwlaw.com

Counsel for Amicus Curiae

March 23, 2018