Respondents 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

-----------------------------------------------------------------RESPONDENTS FREMONT COUNTY,

WYOMING AND CITY OF RIVERTON, WYOMING’S

BRIEF IN OPPOSITION

-----------------------------------------------------------------JODI A. DARROUGH

Counsel of Record

FREMONT COUNTY ATTORNEY’S OFFICE

450 North Second Street, Room 170

Lander, WY 82520

(307) 332-1162

Jodi.darrough@fremontcountywy.gov

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether Congress clearly intended to diminish

the Wind River Indian Reservation in Wyoming via a

1905 statute.

ii

PARTIES TO THE PROCEEDING BELOW

The State of Wyoming and Wyoming Farm Bureau

Federation were the Petitioners in the Tenth Circuit

Court proceeding.

The Respondents included the United States Environmental Protection Agency, E. Scott Pruitt, in his

official capacity as Administrator of the United States

Environmental Protection Agency and Doug Benevento, in his official capacity as Region 8 Administrator of the United States Environmental Protection

Agency.

Intervenors included Fremont County, Wyoming,

and the City of Riverton, Wyoming.

Respondent-Intervenors included the Northern

Arapaho Tribe and the Eastern Shoshone Tribe.

iii

TABLE OF CONTENTS

Page

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

i

PARTIES TO THE PROCEEDING BELOW .........

ii

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

iv

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

1

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

1

REASONS TO DENY CERTIORARI ....................

2

I.

THE DECISION BELOW DOES NOT CREATE A CONFLICT BETWEEN CIRCUITS.....

2

A. Grey Bear is distinguishable .................

2

II. THE TENTH CIRCUIT DECISION DOES

NOT CONFLICT WITH DECISIONS OF

THE WYOMING SUPREME COURT ........

4

III.

THE TENTH CIRCUIT DECISION DOES

NOT CONFLICT WITH DECISIONS OF

THIS COURT ...............................................

7

A. The Act’s language, evincing clear Congressional intent to diminish, is similar

or identical to that in other cases where

diminishment was found .......................

7

B. The Act also included a sum certain

payment .................................................

8

C. Nebraska v. Parker is distinguishable ....

9

D. Ash Sheep has been overruled ..............

10

E. If this case differs in any way from precedent, it is that it does not give real consideration to the third Solem prong...... 12

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

13

iv

TABLE OF AUTHORITIES

Page

CASES

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

(1920) ............................................................. 2, 10, 11

Blackburn v. State, 357 P.2d 174 (Wyo. 1960) ..............5

DeCoteau v. Dist. Co. Court for the Tenth Judicial Dist., 420 U.S. 425 (1975) ............................. 7, 12

Hagen v. Utah, 510 U.S. 399 (1994) .................... 3, 9, 10

In re General Adjudication of All Rights to Use

Water in the Big Horn River System, 753 P.2d

76 (Wyo. 1988) ....................................................... 5, 6

Mattz v. Arnett, 412 U.S. 481 (1973) .............................4

Merrill v. Bishop, 237 P.2d 186 (Wyo. 1951) ............ 4, 5

Nebraska v. Parker, 136 S. Ct. 1072 (2016) ........ 2, 9, 10

Oneida Indian Nation v. City of Sherrill, 337

F.3d 139 (2d Cir. 2003) ..............................................4

Rosebud Sioux Tribe v. Kneip, 375 F. Supp. 1065

(D.S.D. 1974) ............................................................11

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

(1977) ......................................................... 7, 9, 11, 12

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

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

329 (1997) ..................................................................7

State v. Moss, 471 P.2d 333 (Wyo. 1970) .......................5

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

Cir. 1987) ....................................................... 1, 2, 3, 4

v

TABLE OF AUTHORITIES – Continued

Page

Yellowbear v. Atty. Gen. of Wyo., 380 Fed. Appx.

740 (10th Cir. 2010) ...................................................5

Yellowbear v. State, 174 P.3d 1270 (Wyo. 2008)..... 2, 5, 6

STATUTES

18 U.S.C. § 1151 ...................................................... 5, 11

Act of March 3, 1905, ch. 1452, 33 Stat. 1016 ...... passim

Act of June 25, 1948, ch. 645, 62 Stat. 757 ................11

1

RESPONSE IN OPPOSITION TO CERTIORARI

Respondents Fremont County and Riverton, Wyoming (hereinafter “Respondents”) respectfully request

that this Honorable Court deny the petitions for writs

of certiorari submitted by the Northern Arapaho and

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

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

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

INTRODUCTION

The question presented is whether a 1905 statute

diminished the Wind River Indian Reservation in Wyoming. This issue has been examined thoroughly

throughout the last century, and has been exhaustively

litigated on the criminal, civil and administrative law

fronts. The Tenth Circuit panel’s decision is a culmination of these analyses, affirming that the 1905 Act did

indeed diminish the boundaries of the reservation. The

State, County, and municipalities have asserted their

jurisdiction in the ceded area for over one hundred

years.

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

SUMMARY OF THE ARGUMENT

This case does not adequately meet any of the bases necessary for grant of a writ of certiorari. First, it

does not create a conflict between the circuit courts.

While Petitioners argue that the Grey Bear decision issued by the Eighth Circuit conflicts with the panel’s

2

decision, it is distinguishable in several ways. The

panel decision also does not conflict with decisions of

the Wyoming Supreme Court. That court’s opinion in

the Yellowbear case was a comprehensive analysis of

the reservation diminishment issue, and has been

noted by the Tenth Circuit in this and other cases. And

finally, the panel’s decision does not conflict with prior

decisions of this Court. The cession act contained language evincing clear Congressional intent to diminish

the Wind River Indian Reservation, as well as a sum

certain payment. This decision is also distinguishable

from both the Nebraska and Ash Sheep cases noted by

the Petitioners. The petitions for writs of certiorari

should therefore be denied.

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

REASONS TO DENY CERTIORARI

I.

THE DECISION BELOW DOES NOT CREATE A CONFLICT BETWEEN CIRCUITS

A. Grey Bear is distinguishable

The decision below by the Tenth Circuit is not in

conflict with the decisions made by other Circuits. Petitioners argue that United States v. Grey Bear, 828

F.2d 1286 (8th Cir. 1987), a reservation disestablishment case, is in direct conflict with the panel’s decision.

However, Grey Bear is distinguishable on several material points.

The framework for analyzing whether a reservation was diminished was set forth in Solem v. Bartlett,

465 U.S. 463 (1984), and has been employed in many

3

subsequent cases. This test examines Congressional

intent to diminish via the plain language of an act

and the circumstances surrounding its passage. It also

inquires whether Congress provided for an unconditional payment to a tribe, and considers the subsequent treatment of the area claimed to have been

ceded. Id. at 470-71.

While the Eighth Circuit found that the language

of the cession act in Grey Bear suggested Congressional intent to disestablish the reservation boundaries, it also determined that the lack of a sum certain

payment failed to contribute to an insurmountable

presumption of disestablishment. Grey Bear, 828 F.2d

at 1290; Solem, 465 U.S. at 470-71. By contrast, the

Tenth Circuit panel found that payment was promised

by Congress, both in lump sum allocations and from

proceeds of future sales. EST App. at 16a.

However, while the existence of both clear cession

language and an unconditional promise of payment

have been deemed to be solid evidence of Congressional intent to diminish (Solem, 465 U.S. at 470-71),

this Court has opined that both are not necessary. In

Hagen v. Utah, 510 U.S. 399, 412 (1994), the Court

ruled that, “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.” As this Court has previously

dealt with the issue of whether or not analysis of both

of the first two prongs of the Solem test is required,

certiorari is not necessary.

4

Additionally, the Eighth Circuit applied a strict

reading of the language of the act to determine whether

complete disestablishment of the reservation was intended. It noted that Congress, in the past, has “forthrightly stated” an intent to disestablish, accepting only

language indicating vacation of tribal rights to the

land or restoration to the public domain. Grey Bear,

828 F.2d at 1290, citing Mattz v. Arnett, 412 U.S. 481

(1973). The Tenth Circuit only had to determine clear

language of Congressional intent of diminishment of

the reservation, rather than its entire disestablishment, though the standards for both may be the same.

Oneida Indian Nation v. City of Sherrill, 337 F.3d 139,

160 (2d Cir. 2003). The panel further distinguished

Grey Bear by noting that the legislative history therein

was limited, and that the subsequent treatment of that

area did not bolster a finding of diminishment. EST

App. at 14a, n.2.

II.

THE TENTH CIRCUIT DECISION DOES

NOT CONFLICT WITH DECISIONS OF THE

WYOMING SUPREME COURT

The Wyoming Supreme Court has rendered a

string of decisions regarding the boundaries of the

Wind River Indian Reservation, all of which have determined that the Act of March 3, 1905, ch. 1452, 33

Stat. 1016 (hereinafter “the Act” or “the 1905 Act”) diminished the reservation. First, in Merrill v. Bishop,

237 P.2d 186 (Wyo. 1951), the Court considered the water rights of landowners along Owl Creek and held that

the 1905 Act ceded and relinquished to the United

5

States all lands between Owl Creek and the Wind

River, such lands becoming part of the public domain

until conveyed to settlers. Id. at 187, 189.

Next, in Blackburn v. State, 357 P.2d 174 (Wyo.

1960), the Court held that a crime committed approximately eight miles north of the City of Riverton and

that the area for many miles north of it, were not

within the reservation boundaries, and that those and

other lands were no longer Indian Country as defined

by 18 U.S.C. § 1151. Id. at 174-76. The Court addressed

the issue again in State v. Moss, 471 P.2d 333 (Wyo.

1970), in conjunction with a murder committed within

Riverton by a Northern Arapaho tribal member. Therein

the Court redetermined that Riverton was not in Indian Country and that the ceded land was not part of

the reservation. Id. at 337, 339.

The Court set forth in detail the events and circumstances pertaining to the 1905 Act in In re General

Adjudication of All Rights to Use Water in the Big Horn

River System, 753 P.2d 76, 119-35 (Wyo. 1988). While

the majority and the dissent failed to see eye to eye

on the issue of water rights, both sides agreed that

the reservation boundaries had been diminished. Id. at

84, 112, 114, 119-35.

And finally, the Wyoming Supreme Court’s rulings

culminated with a comprehensive analysis of the history of the cession of reservation land in Yellowbear v.

State, 174 P. 3d 1270 (Wyo. 2008). Upon habeas review,

the Tenth Circuit declined to disturb that decision. Yellowbear v. Atty. Gen. of Wyo., 380 Fed. Appx. 740, 743

6

(10th Cir. 2010). In Yellowbear, the Wyoming Supreme

Court applied the Solem analysis, first determining

that the language of the Act clearly evinced Congressional intent to diminish the reservation, with the ceded

lands losing their status as “Indian Country.” Yellowbear, 174 P.3d at 1282. The Court next determined

that, while some of the payments to the Tribes were to

come from the sale proceeds, other specific payments

were appropriated by Congress, including $85,000 for

per capita payments, $35,000 for surveying, and

$25,000 for an irrigation system, thus effecting a sum

certain payment. Id. at 1278.

The Court in Yellowbear next examined the events

and circumstances surrounding passage of the Act, and

acknowledged the detailed examination made in the

Big Horn case and indicated that those actions indicated cession. Id. at 1283. And finally, the Court reviewed the treatment of the area subsequent to the

passage of the Act, including city law enforcement jurisdiction, the fact that the seat of tribal government

on the Wind River Indian Reservation is not within the

ceded lands, and that the vast majority of the population of the City of Riverton is non-Indian, and determined that these factors provided further evidence of

Congressional intent to diminish the reservation.

The Tenth Circuit decision is not contradictory

to any Wyoming Supreme Court decision, and in fact,

pays deference to the analysis and decision in Yellowbear. EST App. at 33a, 35a.

7

III. THE TENTH CIRCUIT DECISION DOES

NOT CONFLICT WITH DECISIONS OF

THIS COURT

A. The Act’s language, evincing clear Congressional intent to diminish, is similar

or identical to that in other cases where

diminishment was found.

The Tenth Circuit determined that the language

of the Act contained explicit terms of cession, precisely

suited to diminishment of the reservation. EST App.

at 11a. The Tribes herein agreed to “cede, grant, and

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

interest” in the diminished area. 33 Stat. at 1016 (emphasis added). Such language was deemed dispositive

in several cases, including DeCoteau v. District County

Court for the Tenth Judicial District, 420 U.S. 425, 445

(1975), where 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.” (emphasis added); Rosebud Sioux Tribe v. Kneip, 430 U.S.

584, 597 (1977) where the Tribe agreed to “cede, surrender, grant, and convey to the United States all their

claim, right, title, and interest in and to” (emphasis

added) the ceded lands, and South Dakota v. Yankton

Sioux Tribe, 522 U.S. 329 (1997), where an act provided

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 their reservation.” 522 U.S.

8

at 344, 351 (emphasis added). Subsequent cases have

not disproved that that language such as that used in

the 1905 Act is the best evidence of Congressional intent to diminish a reservation.

B. The Act also included a sum certain payment.

The 1905 Act made provisions both for payment

from the proceeds of land sales and for other specific

payments. Sums paid directly to the Tribes included

$85,000 for per capita payments, $35,000 for surveying,

and $25,000 for an irrigation system, with repayment

to be made to the United States from proceeds of future

land sales. 33 Stat. at 1021-22. Contrary to the Tribes’

argument, these payments constitute a sum certain

payment, evincing Congressional intent to diminish

the reservation. However, a sum certain payment is

not necessarily required for a finding of diminishment.

While the Court in Solem ruled that, “[t]he most

probative evidence of congressional intent is the statutory language used to open the Indian land,” it did not

state that a sum certain payment is a necessary element of diminishment. Solem, 465 U.S. at 470. Instead

the Court indicated that an unconditional commitment

from Congress to compensate the Indian tribe for its

opened land, in addition to clear language of cession, is

an almost insurmountable presumption that Congress

meant for the tribe’s reservation to be diminished.

Id. The Court further declared that explicit language

of cession and unconditional compensation are not

9

prerequisites for a finding of diminishment. Id. This

concept was reiterated in Hagen, where the Court

found that, while the presence of both makes a very

strong case, both are not necessary. Hagen, 510 U.S. at

411. 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.” Id. The Solem Court also cited Rosebud as an example that unconditional compensation and explicit

language of cession are not prerequisites for a finding

of diminishment. Solem, 465 U.S. at 471.

C. Nebraska v. Parker is distinguishable.

Petitioners argue that Nebraska v. Parker, 136

S. Ct. 1072 (2016) gave clear guidance reaffirming that

both the language of cession and a sum certain payment are necessary for a finding of diminishment.

However, Parker is distinguishable in that it did not

contain clear language of cession evincing Congressional intent to diminish.

In Parker, this Court reiterated the maxim from

Solem that unambiguous statutory language is a clear

indicator of intended diminishment, including explicit

reference to cession language or an unconditional commitment from Congress for compensation for the opened

land. Id. at 1079, citing Solem, 465 U.S. at 470. The

Court also noted that Hagen established that statutory

language restoring portions of a reservation to the

10

public domain indicates diminishment. Parker, 136

S. Ct. at 1079, citing Hagen, 510 U.S. at 414. Therefore,

the Court in Parker found that diminishment had not

occurred. By contrast, the language in the Tenth Circuit’s decision was deemed to evince clear intention for

diminishment. EST App. at 13a.

The record of negotiations surrounding the cession

also shows strong intent for diminishment, in the case

at bar, while the same in Parker seems to be severely

lacking. Parker, 136 S. Ct. at 1080-81. Additionally,

after opining that the “concerns about upsetting the

‘justifiable expectations’ of the almost exclusively

non-Indian settlers who live on the land are compelling

. . . but these expectations alone, resulting from the

Tribe’s failure to assert jurisdiction, cannot diminish

reservation boundaries,” this Court rested its decision

squarely on the lack of statutory language evincing diminishment. Id. at 1082. The review panel’s decision

in the present case stated that the statutory language

was strong enough to show diminishment was intended, and that the record of negotiations bolstered

this evidence of Congressional intent to diminish the

reservation. EST App. at 29a. This case includes clear

language of cession bolstered by a strong historic record, while Parker was devoid of both.

D. Ash Sheep has been overruled.

Petitioners argue that, since the statutory language at issue in Ash Sheep Company v. United States,

11

252 U.S. 159 (1920), is identical to that in the case at

bar, and further argue that neither case included a

sum certain payment, the panel’s decision is therefore

in conflict with this Court’s precedent. They also argue

that, in both cases, the land was merely put in trust for

the benefit of the Tribes. However, these arguments

are not compelling, for various reasons.

First, Ash Sheep had been superseded by statute,

as noted by the Court in Solem, 465 U.S. at 468. While

the Court in Ash Sheep ruled that, because tribes retained a beneficial interest, the property was therefore

prevented from becoming public land, Solem later

made note that a 1948 act uncoupled reservation status from Indian ownership. Id.; Ash Sheep, 252 U.S. at

165; see also Act of June 25, 1948, ch. 645, 62 Stat. 757

(codified at 18 U.S.C. § 1151).

As the review panel noted, trust status may exist

even if a reservation has been diminished. EST App. at

19a. The Court in Rosebud found Congressional intent

to diminish the reservation, despite trust provisions

included in the cession statute. Rosebud, 430 U.S. at

615. Statutory language creating a trust relationship,

therefore, is not prohibitive of diminishment.

Additionally, in discussing whether a 1904 act diminished a reservation in Rosebud, the appeals court

stated, “The case of Ash Sheep Co. v. United States, [citation omitted] is not in point. The act in question

therein contains several provisions which the 1904 Act

does not. Ash Sheep itself recognized that each treaty

must be judged by itself.” Rosebud Sioux Tribe v. Kneip,

12

375 F. Supp. 1065, 1074 (D.S.D. 1974). Upon appeal

this Court also recognized that retention of a beneficial

interest does not erode the scope and effect of the cession, or preserve the original reservation boundaries,

further stating that the question of whether lands become public lands is separate from a question of disestablishment. Rosebud, 430 U.S. at 601 n.24.

E. If this case differs in any way from precedent, it is that it does not give real consideration to the third Solem prong.

The Tenth Circuit rested its decision on the first

two parts of the Solem framework, finding that Congressional intent to diminish the reservation was supported by the language of the Act and by a sum certain

payment. EST App. at 29a. The Court then moved on

to state that the subsequent treatment of the ceded

lands neither bolstered nor undermined its conclusion.

EST App. at 30a.

While the subsequent treatment of the land is not

to be elevated over other considerations, or even given

equal weight, it also should not be brushed aside. Both

Rosebud and DeCoteau acknowledged that, when an

area has long since lost its Indian character, diminishment may have occurred. Rosebud, 430 U.S. at 588, n.3

and 604-05; DeCoteau, 420 U.S. at 428. While the panel

described the record as “mixed” concerning Solem’s

third prong regarding the issue of subsequent treatment of the land (EST App. at 30a, 33a), the balance of

13

this mixture was not fully explored, and may have been

mischaracterized.

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

CONCLUSION

For the foregoing reasons, the petitions for writs of

certiorari should be denied.

Respectfully submitted,

JODI A. DARROUGH

Counsel of Record

FREMONT COUNTY ATTORNEY’S OFFICE

470 North Second Street, Room 170

Lander, WY 82520

(307) 332-1162

jodi.darrough@fremontcountywy.gov

Counsel for Respondents

Fremont County, Wyoming and

City of Riverton, Wyoming

April 20, 2018