Opposition Brief — Eastern Shoshone Tribe, Petitioner v. Wyoming, et al.
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Nos. 17-1159 and 17-1164
In the Supreme Court of the United States
NORTHERN ARAPAHO TRIBE, PETITIONER
v.
STATE OF WYOMING, ET AL.
EASTERN SHOSHONE TRIBE, PETITIONER
v.
STATE OF WYOMING, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JEFFREY H. WOOD
Acting Assistant Attorney
General
SAMUEL C. ALEXANDER
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals erred in holding, consistent with longstanding precedent of the Wyoming
Supreme Court, that Congress diminished the Wind
River Reservation, home of the Eastern Shoshone and
Northern Arapaho Tribes, by the Act of Mar. 3, 1905,
ch. 1452, 33 Stat. 1016.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 2
Argument..................................................................................... 12
Conclusion ................................................................................... 23
TABLE OF AUTHORITIES
Cases:
Ash Sheep Co. v. United States, 252 U.S. 159
(1920) .............................................................................. 17, 18
Blackburn v. State, 357 P.2d 174 (Wyo. 1960) .................... 20
DeCoteau v. District Cnty. Court for the Tenth
Judicial Dist., 420 U.S. 425 (1975) ................................... 15
Hagen v. Utah, 510 U.S. 399 (1994) ................................. 9, 16
NCAA v. Smith, 525 U.S. 459 (1999) ................................... 14
Nebraska v. Parker, 136 S. Ct. 1072 (2016) .................... 9, 17
Rosebud Sioux Tribe v. Kneip:
521 F.2d 87 (8th Cir. 1975), aff ’d, 430 U.S. 584
(1977) ........................................................................... 18
430 U.S. 584 (1977) ............................... 9, 10, 12, 15, 16, 18
Shoshone Tribe of Indians v. United States,
299 U.S. 476 (1937)................................................................ 4
Solem v. Bartlett, 465 U.S. 463 (1984) ........................ passim
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329
(1998) .................................................................... 9, 15, 16, 17
State v. Moss, 471 P.2d 333
(Wyo. 1970) .....................................................4, 13, 19, 20, 22
United States v. Grey Bear, 828 F.2d 1286 (8th Cir.),
vacated in part on other grounds, 836 F.2d 1088
(8th Cir. 1987) ................................................................ 20, 21
(III)
IV
Cases—Continued:
Page
United States v. Lara, 541 U.S. 193 (2004) ......................... 20
United States v. Shoshone Tribe of Indians,
304 U.S. 111 (1938)................................................................ 4
Yellowbear v. Attorney Gen., 380 Fed. Appx. 740
(10th Cir. 2010), cert. denied, 562 U.S. 1228
(2011) .............................................................................. 13, 20
Yellowbear v. Salzburg, 562 U.S. 1228 (2011) ............... 13, 20
Yellowbear v. State, 174 P.3d 1270
(Wyo. 2008) ........................................................ 13, 19, 20, 22
Treaty, statutes, and regulations:
Treaty with the Shoshonees and Bannacks,
July 3, 1868, 15 Stat. 673 ...................................................... 2
Act of Dec. 15, 1874, ch. 2, 18 Stat. 291.................................. 2
Act of Aug. 7, 1882, ch. 434, § 2, 22 Stat. 341 ...................... 17
Act of June 7, 1897, ch. 3, § 12, 30 Stat. 93 ............................ 2
Act of Apr. 27, 1904, ch. 1620, 33 Stat. 319 .......................... 20
Art. I, 33 Stat. 321 ........................................................... 20
Act of Mar. 3, 1905, ch. 1452, 33 Stat. 1016 ........................... 2
Art. I, 33 Stat. 1016 ......................................2, 3, 13, 14, 15
Art. II, 33 Stat. 1019-1020 .......................................... 3, 15
Art. III, 33 Stat. 1020 .................................................. 3, 14
Art. IV, 33 Stat. 1017 .................................................. 3, 14
Art. VI, 33 Stat. 1018 .................................................. 3, 14
Art. VII, 33 Stat. 1018 ....................................................... 4
Art. IX:
33 Stat. 1021 ............................................................. 3, 4
§ 3, 33 Stat. 1022 .................................................... 3, 14
Act of July 27, 1939, ch. 387, § 5, 53 Stat. 1129 ..................... 4
Act of Aug. 15, 1953, ch. 509, 67 Stat. 592 ............................. 5
§ 2, 67 Stat. 612 ........................................................... 5
V
Statutes and regulations—Continued:
Page
Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 6
42 U.S.C. 7405 .................................................................... 8
42 U.S.C. 7407(d)(3) .......................................................... 8
42 U.S.C. 7426 .................................................................... 8
42 U.S.C. 7601(d)(1)(A) ..................................................... 6
42 U.S.C. 7601(d)(2)(B) ..................................................... 6
42 U.S.C. 7607(b)(1) .......................................................... 8
42 U.S.C. 7661d(a)(2) ........................................................ 8
Rev. Stat. § 2117 (1875) ......................................................... 17
18 U.S.C. 1151 ........................................................................ 19
25 U.S.C. 179 .......................................................................... 17
Presidential Proclamation of June 2, 1906,
34 Stat. 3208-3209 ................................................................. 4
40 C.F.R.:
Pt. 49 ................................................................................... 6
Section 49.7(a)(3) ......................................................... 7
Section 49.9(d) .............................................................. 7
Miscellaneous:
9 Fed. Reg. 9749 (Aug. 10, 1944) ............................................ 5
H.R. Rep. No. 2355, 58th Cong., 2d Sess. (1904) .............. 3, 4
H.R. Rep. No. 269, 83d Cong., 1st Sess. (1953) ................ 5, 6
Jurisdiction—Hunting and Fishing on the Wind
River Reservation, 2 Op. of Solicitor of Dep’t of
Interior Relating to Indian Affairs 1185 (1943) ................. 4
U.S. Census Bureau, U.S. Dep’t of Commerce,
Quick Facts, Riverton City, Wyoming,
https://www.census.gov/quickfacts/fact/table/
rivertoncitywyoming/PST045216 (last visited
May 18, 2018)......................................................................... 6
In the Supreme Court of the United States
No. 17-1159
NORTHERN ARAPAHO TRIBE, PETITIONER
v.
STATE OF WYOMING, ET AL.
No. 17-1164
EASTERN SHOSHONE TRIBE, PETITIONER
v.
STATE OF WYOMING, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Eastern Shoshone Tribe (EST) Pet. App. 1a-49a), as revised nunc
pro tunc, is reported at 875 F.3d 505. A prior opinion of
the court of appeals (EST Pet. App. 51a-99a) is reported
at 849 F.3d 861.
JURISDICTION
The judgment of the court of appeals was entered on
February 22, 2017. Petitions for rehearing were denied
on November 7, 2017 (EST Pet. App. 151a-152a). On
(1)
2
January 17, 2018, Justice Sotomayor extended the time
within which to file petitions for writs of certiorari to
and including March 7, 2018, and the petitions were
filed on February 16, 2018. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The Eastern Shoshone Tribe and Northern Arapaho Tribe (collectively, Tribes) reside on the Wind
River Reservation (Reservation) in Wyoming. EST
Pet. App. 2a. The Reservation was created for the Eastern Shoshone Tribe by the Treaty with the Shoshonees
and Bannacks, July 3, 1868, 15 Stat. 673. EST Pet. App.
4a. At that time, the Reservation covered roughly three
million acres. Ibid.
In 1874, the Eastern Shoshone Tribe relinquished
the portion of the Reservation south of the forty-third
parallel. Act of Dec. 15, 1874 (Lander Purchase), ch. 2,
18 Stat. 291; see EST Pet. App. 5a. Around the same
time, the Northern Arapaho joined the Eastern Shoshone on the Reservation. EST Pet. App. 5a. The Reservation’s boundaries changed again in 1897, when the
Tribes relinquished certain land located on the Reservation’s northern boundary. Act of June 7, 1897 (Thermopolis Purchase), ch. 3, § 12, 30 Stat. 93; see EST Pet.
App. 5a-6a. It is undisputed that lands conveyed by the
Tribes under the Lander Purchase and the Thermopolis
Purchase are no longer part of the Reservation. See
EST Pet. App. 5a-6a.
In the early years of the twentieth century, U.S.
Indian Inspector James McLaughlin and the Tribes
reached another agreement regarding Reservation
land, embodied in the Act of Mar. 3, 1905 (1905 Act),
ch. 1452, 33 Stat. 1016, which is at issue in this case.
EST Pet. App. 6a. Article I of the 1905 Act provided
3
that the Tribes “do hereby cede, grant, and relinquish
to the United States, all right, title, and interest which
they may have to all the lands embraced within the
[Reservation], except the lands within and bounded by”
lines set forth in the text of Article I, lying to the south
of the mid-channel of the Big Wind River and west of
the mid-channel of the Popo-Agie River. 33 Stat. 1016;
see EST Pet. App. 22a-27a. Article II of the 1905 Act
provided that “[i]n consideration of the lands ceded,
granted, relinquished, and conveyed by Article I,” the
United States would dispose of the lands to purchasers at
certain prices per acre, with the proceeds “to be paid to
and expended for said Indians” in the manner provided
by the 1905 Act, including per capita payments and
payments for enumerated purposes. 33 Stat. 1019-1020.
Article IX of the 1905 Act provided that the “United
States shall act as trustee for said Indians to dispose of ”
the lands opened for sale, 33 Stat. 1021, which the 1905
Act referred to as the “ceded lands,” e.g., Art. VI, 33 Stat.
1018; see also Art. I, 33 Stat. 1016 (“the portion of said
reservation hereby ceded”). The 1905 Act referred to
the lands retained by the Tribes under Article I as the
“diminished reserve” or “diminished reservation.” Art. I,
33 Stat. 1016; Art. III, 33 Stat. 1020; Art. IV, 33 Stat.
1017; Art. VI, 33 Stat. 1018; Art. IX, § 3, 33 Stat. 1022.
For example, the 1905 Act provided that some of the
funds realized from the sale of the ceded lands were to
be used for “the survey and marking of the outbounddaries of the diminished reservation.” Art. IX, § 3,
33 Stat. 1022.
Pursuant to the 1905 Act, the United States held
approximately 1.48 million acres of “ceded” lands, 1
The legislative history of the 1905 Act describes the “lands proposed to be ceded” as including 1.48 million acres. H.R. Rep.
1
4
Art. VII, 33 Stat. 1018, in its capacity as “trustee for
said Indians to dispense of said land” and “pay over to
the[ Tribes] the proceeds received from the sale thereof
only as received,” Art. IX, 33 Stat. 1021; see State v.
Moss, 471 P.2d 333, 334-335 (Wyo. 1970). By Presidential
Proclamation, the unallotted, ceded lands were opened
for purchase and settlement on June 2, 1906. 34 Stat.
3208-3209. Demand for the lands was low, and only
about 196,000 acres were sold. Northern Arapaho Tribe
(NAT) Pet. App. 233. In 1915, the Department of the
Interior (DOI) ceased sales of the ceded lands. Id. at
233-234.
In 1939, as part of the distribution of a judgment
fund for the Shoshone Tribe following this Court’s decisions in Shoshone Tribe of Indians v. United States,
299 U.S. 476 (1937), and United States v. Shoshone
Tribe of Indians, 304 U.S. 111 (1938), Congress directed
the Secretary of the Interior (Secretary) “to restore to
tribal ownership all undisposed-of surplus or ceded
lands within * * * land use districts” to be established
by the Secretary. Act of July 27, 1939 (1939 Act),
ch. 387, § 5, 53 Stat. 1129; see EST Pet. App. 31a. Fol-
No. 2355, 58th Cong., 2d Sess. 3 (1904). Other documents list the
total as 1,438,633 acres. See Jurisdiction—Hunting and Fishing
on the Wind River Reservation, 2 Op. of Solicitor of Dep’t of Interior Relating to Indian Affairs 1185, 1191 n.7 (1943); see also Northern Arapaho Tribe (NAT) Pet. App. 180. The lower figure may represent the ceded lands minus those lands selected for allotments.
The portion of the Reservation not open for sale comprised approximately 808,500 acres. H.R. Rep. No. 2355, at 3.
5
lowing the 1939 Act, a series of secretarial orders returned the majority of the ceded lands to tribal ownership. See NAT Pet. App. 169-170. 2
Congress again addressed a portion of the ceded
lands in the Act of Aug. 15, 1953 (1953 Act), ch. 509,
67 Stat. 592. Following the 1905 Act, the United States
had withdrawn approximately 332,000 acres of the
ceded lands for the Riverton Reclamation Project, and
compensated the Tribes for roughly 100,000 acres. H.R.
Rep. No. 269, 83d Cong., 1st Sess. 1-2 (1953). The 1953
Act returned 70,500 acres of this land to the Tribes,
while the United States retained approximately 161,500
acres. Id. at 2. “[A]ll” of the “unentered and vacant”
lands in the specified area were “restored to the public
domain for administration, use, occupancy, and disposal
under the reclamation and public lands laws of the
United States.” 1953 Act § 2, 67 Stat. 612. The United
States paid $1,009,500 to the Tribes, as “full, complete,
and final compensation * * * for terminating and extinguishing all of the right, title, estate, and interest * * *
and any and all past and future damages arising out of
2
The orders included the following language:
I hereby find that restoration to tribal ownership of the lands
described above, which are classified as undisposed-of ceded
lands of the Wind River Reservation, Wyoming, and which total
625,298.82 acres * * * are hereby restored to tribal ownership
for the use and benefit of the * * * Tribes * * * , and are added
to and made a part of the existing Wind River Reservation, subject to any valid existing rights.
9 Fed. Reg. 9749, 9754 (Aug. 10, 1944) (reproduced at NAT Pet. App.
170). The Secretary used the same language to restore lands on
numerous other reservations. See NAT Pet. App. 170-171.
6
the cession to the United States” of those lands pursuant to the 1905 Act. 1953 Act, 67 Stat. 592; see also H.R.
Rep. No. 269, at 2.
Following the 1939 and 1953 enactments, approximately 1.07 million acres of the original 1.48 million
acres of ceded lands are now held in trust by the United
States for the tribal government or individual members.
NAT Pet. App. 180. Those lands are now Indian country subject to federal and tribal jurisdiction without regard to whether the 1905 Act diminished the Reservation and removed those lands from reservation status at
that time. The remainder of the ceded lands is in private, state, or local government hands or under the control of federal agencies. The lands that have not been
returned to tribal ownership include, inter alia, the majority of the land comprising Riverton, Wyoming, a city
of approximately 11,000 people. See U.S. Census Bureau, U.S. Dep’t of Commerce, Quick Facts, Riverton
City, Wyoming, https://www.census.gov/quickfacts/fact/
table/rivertoncitywyoming/PST045216; see also NAT Pet.
App. 181-182. 3
2. In 1990, Congress amended the Clean Air Act
(CAA), 42 U.S.C. 7401 et seq., to permit the U.S. Environmental Protection Agency (EPA) “to treat Indian tribes
as States” for certain purposes. 42 U.S.C. 7601(d)(1)(A).
EPA then promulgated the Tribal Authority Rule,
40 C.F.R. Pt. 49, which allows qualified tribes to apply
for eligibility to implement and manage air quality programs and functions “within the exterior boundaries of
the reservation or other areas within the tribe’s jurisdiction.” 42 U.S.C. 7601(d)(2)(B); see EST Pet. App. 6a7a. A tribe’s application must clearly identify the area
Riverton acquired a patent for 160 acres in 1907 and now encompasses approximately 6300 acres. NAT Pet. App. 181-182 & n.68.
3
7
over which it seeks eligibility to be treated as a State.
See 40 C.F.R. 49.7(a)(3).
In 2008, the Tribes applied to be “treat[ed] * * * as
States” under the CAA for the purpose of carrying out
certain non-regulatory CAA functions pertaining to the
Reservation. EST Pet. App. 6a. Pursuant to EPA’s
Tribal Authority Rule, the Tribes’ application identified
the boundaries of the Reservation, which they submitted were undiminished by the 1905 Act. Id. at 7a. The
Tribes subsequently requested that EPA not address
the lands subject to the 1953 Act, discussed at pages 56, supra. NAT Pet. App. 62. EPA notified appropriate
governmental entities and the public of the Tribes’ application. EST Pet. App. 7a. In their comments, the
State of Wyoming and the Wyoming Farm Bureau Federation disputed the Reservation boundaries asserted
by the Tribes. Ibid. Pursuant to 40 C.F.R. 49.9(d),
which permits consultation with DOI when a “tribe’s jurisdictional assertion” “is subject to a conflicting claim,”
ibid., EPA sought DOI’s input regarding whether the
1905 Act diminished the Reservation’s boundaries. EST
Pet. App. 7a. DOI concluded that it did not. Ibid.; see
NAT Pet. App. 201-251.
Based on DOI’s views and its own analysis, EPA determined that the 1905 Act did not diminish the Reservation’s boundaries. NAT Pet. App. 199-200; see id. at
65-200. Consistent with the Tribes’ request, EPA did
not address the lands subject to the 1953 Act. Id. at 63,
67. Accordingly, on December 6, 2013, EPA granted the
Tribes’ application, making them eligible for participation in grants and other non-regulatory CAA programs
8
pertaining to the Reservation, as undiminished by the
1905 Act. Id. at 59-64. 4
3. The State of Wyoming and the Wyoming Farm
Bureau Federation filed petitions for review in the
Tenth Circuit pursuant to 42 U.S.C. 7607(b)(1), challenging EPA’s conclusion that the 1905 Act did not diminish the Reservation’s boundaries. EST Pet. App.
1a-49a. The City of Riverton and Fremont County intervened as petitioners, and the Tribes intervened as
respondents. See id. at 1a. A divided panel of the Tenth
Circuit held that the 1905 Act diminished the boundaries of the Reservation. Id. at 35a. 5 The panel therefore
granted the petition for review, vacated EPA’s determination that the Reservation had not been diminished by
the 1905 Act, and remanded it to the agency for further
proceedings consistent with the court’s opinion. Ibid.
a. “To determine whether the 1905 Act had the effect of diminishing the Reservation,” the court of appeals applied “the well-settled approach described in
[Solem v. Bartlett, 465 U.S. 463 (1984)], where th[is]
Court outlined a hierarchical, three-step framework to
ascertain congressional intent.” EST Pet. App. 9a.
At step one of the Solem framework, the court of appeals looked to “the text of the statute” as “ ‘[t]he most
4
These programs include grant funding, 42 U.S.C. 7405; requests
for National Ambient Air Quality Standards redesignations, 42 U.S.C.
7407(d)(3); and reviewing or commenting on nearby permitting and
sources, 42 U.S.C. 7426, 7661d(a)(2). NAT Pet. App. 60-61.
5
On November 7, 2017, the court of appeals denied the Tribes’
petitions for rehearing en banc. EST Pet. App. 151a-152a. At the
same time, the panel majority sua sponte granted panel rehearing
in part to amend and supersede its prior opinion, “nunc pro tunc to
the original filing date of February 22, 2017.” Id. at 152a. A revised
dissent also was filed. Ibid. References in this brief to the majority
and dissenting opinions refer to the revised versions.
9
probative evidence of congressional intent.’ ” EST Pet.
App. 9a (quoting Solem, 465 U.S. at 470) (brackets in
original); see id. at 10a-19a; see also Nebraska v. Parker, 136 S. Ct. 1072, 1079 (2016). The majority held that
“the express language of cession in the [1905] Act’s operative text, taken together with the [1905] Act’s other
references to diminishment, strongly suggests that
Congress intended to diminish the boundaries of the
Wind River Reservation.” EST Pet. App. 19a. In particular, the court compared the 1905 Act’s language to
the text of statutes this Court has previously considered
and concluded that the 1905 Act’s text “aligns with the
type of language th[is Court] has called ‘precisely suited’
to diminishment.” Id. at 11a (quoting South Dakota v.
Yankton Sioux Tribe, 522 U.S. 329, 344 (1998)); see id.
at 11a-15a.
The court of appeals also rejected several contrary
arguments at Solem’s first step. While the 1905 Act did
not provide for unconditional payment of a sum certain
to the Tribes, the majority noted that this Court has
“rejected the argument that a finding of diminishment
requires ‘both explicit language of cession * * * and an
unconditional commitment from Congress to compensate the Indians.’ ” EST Pet. App. 17a (quoting Hagen
v. Utah, 510 U.S. 399, 411 (1994)). Similarly, although the
United States served as trustee to dispose of the ceded
lands under the 1905 Act, the court of appeals pointed
out that this Court has found congressional intent to diminish a reservation “notwithstanding * * * trusteeship provisions.” Id. at 19a (citing Rosebud Sioux Tribe
v. Kneip, 430 U.S. 584, 615 (1977)).
Turning to Solem’s second step, the court of appeals
considered whether “the manner in which the transaction was negotiated with the tribes involved and the
10
tenor of legislative reports presented to Congress” demonstrated congressional intent to diminish the Reservation’s boundaries. EST Pet. App. 20a (quoting Solem,
465 U.S. at 471); see id. at 10a. The court noted that it
“need not search for unequivocal evidence” of congressional intent because the 1905 Act contained “express language of cession.” Id. at 20a. But the court
determined that “[t]he contemporary historical context
* * * confirm[ed]” congressional intent to diminish the
Reservation because “[t]he legislative history and the
negotiations leading up to the 1905 Act reveal
Congress’s longstanding desire to sever from the Wind
River Reservation the area north of the Big Wind
River.” Ibid.; see id. at 20a-29a (detailing this history).
In particular, the court noted that an unratified 1891
agreement would have provided for cession in addition
to a lump-sum payment. Id. at 20a-21a. That agreement, the court reasoned, “served as a predicate for the
1905 Act,” and the fact that thereafter “provisions were
revised to reflect [intervening] negotiations and the
prevailing policy on compensating Native Americans
for ceded land at the time is insufficient reason for
severing and rendering irrelevant the circumstances
prior to 1904.” Id. at 27a-28a. The court analogized this
case to Rosebud Sioux Tribe, supra, which relied on a
“continuity of purpose” between an unratified prior
agreement and the ultimate legislation. EST Pet. App.
28a; see id. at 27a-28a. The court also observed that
James McLaughlin, the U.S. Indian Inspector, had
stated to the Tribes during negotiations that the “boundaries of the reservation” would change and the Reservation would be “diminished,” id. at 24a (citation and
emphases omitted), and had made similar statements in
11
his report to Washington after the negotiations, id. at
26a; see id. at 25a-27a (similar).
“Third and finally, and ‘[t]o a lesser extent,’ ” the
court of appeals considered “ ‘Congress’s own [subsequent] treatment of the affected areas,’ ” “ ‘the manner
in which the Bureau of Indian Affairs and local judicial
authorities dealt with unallotted open lands,’ ” and “ ‘the
subsequent demographic history of opened lands.’ ”
EST Pet. App. 29a (quoting Solem, 465 U.S. at 471-472)
(first set of brackets in original). Although “the parties
ha[d] provided volumes of material evidencing the
treatment of the ceded land after the 1905 Act,” the
court found those submissions inconsistent and “of little
evidentiary value.” Id. at 30a. The court therefore concluded that “on balance the subsequent treatment of the
ceded lands neither bolsters nor undermines our conclusion, based on steps one and two * * * , that the
1905 Act diminished the Wind River Reservation.” Id.
at 35a.
b. Judge Lucero dissented. EST Pet. App. 36a-49a.
Like the majority, the dissent “[a]ppl[ied] the threestep analysis from Solem.” Id. at 36a-37a. At step one,
the dissent would have held that, in the “absen[ce of ]
sum-certain payment or statutory language restoring
lands to the public domain,” the 1905 Act did not clearly
demonstrate congressional intent to diminish the Reservation. Id. at 36a; see id. at 37a-41a.
At step two, the dissent would have found that the
circumstances surrounding passage of the 1905 Act
failed to provide “unequivocal[]” evidence of Congress’s
intent to diminish the Reservation. EST Pet. App. 41a
(quoting Solem, 465 U.S. at 471). The dissent disagreed
with the majority’s conclusion that there was a
“continuity of purpose” between Congress’s earlier
12
efforts to dispose of Reservation lands and the 1905 Act
that evidenced a congressional intent to diminish the
Reservation. Id. at 45a-46a. Among other things, the
dissent noted that the 14-year delay between the 1891
negotiations and the 1905 Act was far longer than the
three-year delay at issue in Rosebud Sioux Tribe,
supra. EST Pet. App. 45a. Moreover, the dissent would
have found that the 1905 Act’s legislative history
“counsel[s] against an intent to diminish,” because,
inter alia, Congress decided not to provide for state
school lands in the area of the ceded lands, suggesting
that Congress intended the area to “remain part of the
Reservation.” Id. at 41a-42a.
Finally, the dissent stated that it was unnecessary to
consider Solem’s third step “[b]ecause the statutory
text and legislative history in this case fail to provide
compelling evidence of congressional intent to diminish.” EST Pet. App. 48a. But even if the dissent considered subsequent events, it “agree[d] with the majority that the post-Act record is so muddled that it does not
provide evidence of clear congressional intent.” Ibid.
4. The Tenth Circuit denied the Tribes’ petitions for
rehearing en banc, with no active judge requesting that
a poll be called. EST Pet. App. 151a-152a; see p. 8 n.5,
supra.
ARGUMENT
Petitioners contend (EST Pet. 10-34, NAT Pet. 1736) that the court of appeals erred in holding that the
1905 Act diminished the Reservation. This Court’s
review of that question is not warranted. Although
EPA and DOI concluded that the 1905 Act did not
diminish the Reservation, neither the court of appeals’
application of the well-settled framework set forth in
Solem v. Bartlett, 465 U.S. 463 (1984), nor its holding
13
that the 1905 Act diminished the Reservation, conflicts
with any decision of this Court or of another court of
appeals. To the contrary, the Tenth Circuit’s decision
is consistent with decisions of the Wyoming Supreme
Court, which has twice held that the 1905 Act diminished the Reservation, removing from it the portions
of the lands ceded in the 1905 Act that have not expressly been returned to full tribal trust status by
subsequent Acts of Congress. See Yellowbear v. State,
174 P.3d 1270 (Wyo. 2008); State v. Moss, 471 P.2d 333
(Wyo. 1970). When the Tenth Circuit declined to disturb one of those decisions on federal habeas corpus
review, Yellowbear v. Attorney Gen., 380 Fed. Appx.
740, 743 (2010) (Gorsuch, J.), this Court denied a writ of
certiorari, Yellowbear v. Salzburg, 562 U.S. 1228 (2011)
(No. 10-7881). The same result is warranted here.
1. Contrary to petitioners’ suggestions (EST Pet.
16-20; NAT Pet. 19-26), the court of appeals’ decision is
not contrary to any decision of this Court.
a. Petitioners first contend (EST Pet. 26; NAT Pet.
20-21; see Nat’l Congress of Am. Indians Amicus Br. 3,
22) that the court of appeals departed from Solem’s
framework by assigning talismanic significance to the
term “cede” in the 1905 Act, NAT Pet. 20-21 (citations
omitted), rather than reading the statute “as a whole,”
EST Pet. 26 (quoting Solem, 465 U.S. at 476). But the
court’s analysis at Solem’s first step considered “the express language of cession”—that the Tribes “hereby
cede, grant, and relinquish to the United States, all
right, title, and interest” in the ceded lands, 1905 Act,
Art. I, 33 Stat. 1016—“taken together with the [1905]
Act’s other references to diminishment.” EST Pet.
App. 19a (emphasis added). Those “other references to
diminishment” include the 1905 Act’s six references to
14
the land not opened for sale as the “diminished reserve”
or “diminished reservation.” Art. I, 33 Stat. 1016 (“diminished reserve”); Art. III, 33 Stat. 1020 (“diminished
reserve”); Art. IV, 33 Stat. 1017 (“diminished reservation”); Art. VI, 33 Stat. 1018 (“diminished reservation”);
Art. IX § 3, 33 Stat. 1022 (“diminished reservation” and
“diminished reserve”); see EST Pet. App. 14a n.******
(reciting those references).
The court of appeals acknowledged (EST Pet. App. 14a
n.******) that in Solem, this Court found an isolated
statutory reference to “the reservation thus
diminished”—which together with isolated language
restoring land to the “public domain” was “[u]ndisputedly”
supportive of diminishment—insufficient to “carry the
burden of establishing an express congressional purpose
to diminish.” Solem, 465 U.S. at 475. But the court of
appeals explained that here, the references to “the
diminished reservation” in “Articles I, III, IV, VI, and
IX of the 1905 Act” were “in addition to the express
language of cession in Article I.” EST Pet. App. 14a
n.****** (citing 33 Stat. 1016, 1017, 1018, 1020, 1022).
Considered together, the court concluded, those two
aspects of the statutory text “strongly suggest[] that
Congress intended to diminish the boundaries of the
Wind River Reservation.” Id. at 19a. Thus, because the
court of appeals did not rely on language of cession
alone, this case does not present the question whether
Congress would have “evinced a clear and plain intent”
to diminish a reservation “simply by using language of
cession.” NAT Pet. i; cf. NCAA v. Smith, 525 U.S. 459,
470 (1999) (“[W]e do not decide in the first instance
issues not decided below.”).
The court of appeals’ reliance on those two aspects of
the statute does not conflict with this Court’s cases. The
15
Court has long recognized that language of cession—
even if unaccompanied by a lump-sum payment—can
provide evidence of congressional intent to diminish.
See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 597
(1977) (referring to the phrase “ ‘cede, surrender, grant,
and convey’ ” as “language of immediate cession”) (citation omitted); see also South Dakota v. Yankton Sioux
Tribe, 522 U.S. 329, 344 (1998) (referring to such language, in combination with sum-certain language, as
“precisely suited” to terminating reservation status);
DeCoteau v. District Cnty. Court for the Tenth Judicial
Dist., 420 U.S. 425, 445 (1975) (same). And this Court
has stated that statutory “references to * * * the
unopened areas as constituting ‘the reservation thus diminished’ support [the] view that the [relevant] [a]ct diminished the reservation,” even if such references, in
the context of a particular statute, may not be “dispositive.” Solem, 465 U.S. at 475. 6
Petitioner NAT contends (Pet. 20) that an Act of
Congress may diminish the boundaries of a reservation
“only when (1) the statutory text guaranteed the tribe a
sum-certain payment in exchange for reservation lands;
(2) the statutory text made clear that the reservation
lands would be restored to the public domain; or
Petitioners point (EST Pet. 2, 8, 12, 14; NAT Pet. 15) to the court
of appeals’ statement that “Congress’s use of the words ‘cede, grant,
and relinquish’ can only indicate one thing—a diminished reservation.” EST Pet. App. 15a. But the court made that statement in
response to the argument that the 1905 Act did not diminish the
Reservation because Article I does not include the words “sell” or
“convey”—although “convey” is included in Article II. Ibid. Contrary to petitioners’ suggestion (EST Pet. 2, 8, 12, 14; NAT Pet. 15),
the court’s statement does not mean that it relied solely on language
of cession to reach its conclusion at step one of the Solem framework.
6
16
(3) there is unequivocal evidence supporting diminishment in the contemporaneous legislative and historical
record.” See Nat’l Congress of Am. Indians Amicus Br.
13 (similar). This Court has made clear, however, that
in diminishment cases, courts must “examine all the circumstances surrounding the opening of a reservation,”
and it has rejected a magic-words approach. Hagen v.
Utah, 510 U.S. 399, 412 (1994); see also, e.g., ibid.
(“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.”); Solem, 465 U.S. at 470-471 (Although the combination of “language of cession” and “an unconditional
commitment from Congress to compensate the Indian
tribe for its open land” creates “an almost insurmountable presumption that Congress meant for the tribe’s
reservation to be diminished,” “explicit language of cession and unconditional compensation are not prerequisites for a finding of diminishment.”); Rosebud Sioux
Tribe, 430 U.S. at 598 n.20 (in determining whether
Congress intended to diminish a reservation, “the
method of payment, whether lump-sum or otherwise, is
but one of many factors to be considered”) (citation omitted). Thus, this Court’s decisions have not held that diminishment may be found only in the specific circumstances petitioners identify. 7
Petitioner EST further contends (Pet. 27) that the court of appeals failed to faithfully apply Solem because, at the second step of
the analysis, it relied “on equivocal evidence about the contemporaneous understanding of the 1905 Act.” But as petitioner EST
acknowledges (ibid.), the court quoted Yankton Sioux Tribe and
cited Solem for the proposition that “[e]ven in the absence of a clear
expression of congressional purpose in the text of a surplus land Act,
unequivocal evidence derived from the surrounding circumstances
may support the conclusion that a reservation has been diminished.”
7
17
b. Nor does the court of appeals’ decision conflict with
this Court’s decision in Nebraska v. Parker, 136 S. Ct.
1072 (2016). Petitioner NAT contends (Pet. 27) that
Parker “goes a long way to making clear that the 1905
Act did not unequivocally diminish the Wind River Reservation.” But the statute at issue in Parker merely
permitted the survey, appraisal, and sale of certain
lands and “open[ed those lands] for settlement,” Act of
Aug. 7, 1882, ch. 434, § 2, 22 Stat. 341; it lacked both the
express language of “cession” and the references to a
“diminished reservation” or “diminished reserve” upon
which the majority in this case relied. See 136 S. Ct. at
1077-1080; id. at 1080 (contrasting text of statute at issue in Parker with earlier treaties between the United
States and the Omaha Tribe, that included, inter alia,
language of cession).
c. Contrary to petitioners’ assertions (EST Pet. 1620; NAT Pet. 23), the court of appeals’ decision also does
not conflict with this Court’s decision in Ash Sheep Co.
v. United States, 252 U.S. 159 (1920). There, the Court
considered whether unsold lands held under a 1904
surplus land act by the United States as sales agent for
the Crow Tribe constituted “land belonging to any
Indian or Indian tribe” subject to the livestock-trespass
provision currently codified at 25 U.S.C. 179. 252 U.S.
at 163 (quoting Rev. Stat. § 2117 (1875)); see id. at 163166. The Court concluded that “until sales should be
EST Pet. App. 20a (quoting Yankton Sioux Tribe, 522 U.S. at 351)
(brackets in original). Although the court stated that because it had
found clear language of diminishment, it did not need to look for
unequivocal evidence of the contemporaneous understanding of the
1905 Act, ibid., it nonetheless considered such evidence and found
that it supported a finding of congressional intent to diminish. Id.
at 20a-29a.
18
made” by the United States, as trustee, to purchasers,
“any benefits which might be derived from the use of
the lands would belong to the beneficiaries,” i.e., the
Indians. Id. at 166. Thus, the lands remained “Indian
lands” subject to the statute until they were sold. Ibid.
Petitioner EST observes that the surplus land act for
the reservation at issue in Ash Sheep and the 1905 Act
include similar language, and it construes the Court’s
determination in Ash Sheep that “the lands in question
‘did not become Public lands’ but instead remained Indian lands” as “a holding that the statute did not diminish the reservation.” EST Pet. 17-18 (quoting Ash
Sheep, 252 U.S. at 166) (internal quotation marks omitted). But the lands at issue in Ash Sheep remained “Indian lands” because the tribe retained a beneficial interest. 252 U.S. at 166. As this Court explained in Rosebud
Sioux Tribe, however, “the fact that a beneficial interest is retained does not erode the scope and effect of the
cession made, or preserve to the reservation its original
size, shape, and boundaries.” 430 U.S. at 601 n.24 (quoting Rosebud Sioux Tribe v. Kneip, 521 F.3d 87, 102
(8th Cir. 1975), aff ’d, 430 U.S. 584 (1977)). Thus,
“whether lands become ‘public lands’ under * * * Ash
Sheep, is * * * logically separate from a question of disestablishment,” ibid., as the dissenting judge in the court
of appeals acknowledged, EST Pet. App. 39a (Lucero,
J., dissenting) (“Admittedly, the retention of a beneficial interest is not dispositive of reservation status.”).
Moreover, Ash Sheep addressed the status of unsold
land held by the United States as tribal sales agent
pursuant to a surplus land statute. By contrast, the
lands at issue here are the almost 200,000 acres that
were sold pursuant to the 1905 Act. See NAT Pet. App.
233a. The remaining land opened for sale under the
19
1905 Act—well more than a million acres—was either
restored to the Tribes in trust or addressed by a
subsequent statute. Because Ash Sheep does not speak
to the status of lands that were actually sold pursuant
to a surplus land statute, the decision below does not
contravene its reasoning.
2. Nor does the decision below conflict with any decision of a state court of last resort or of another court
of appeals.
a. The Tenth Circuit’s conclusion that the 1905 Act
diminished the Reservation is consistent with decisions
of the Wyoming Supreme Court, the only other court
that has expressly decided the issue. In Moss, supra, a
criminal defendant contended that the murder he was
alleged to have committed within the City of Riverton
occurred in “Indian country” as defined in 18 U.S.C.
1151, such that it was within the exclusive jurisdiction
of the United States. 471 P.2d at 333-334. The court
rejected the defendant’s contention that “the agreement and 1905 Act had no effect on the area that was
Indian country,” and thus upheld the State’s criminal
jurisdiction. Id. at 339.
Similarly, in Yellowbear v. State, supra, the Wyoming
Supreme Court rejected a defendant’s argument that
his crimes—which also took place in Riverton—
occurred in Indian country because the 1905 Act did not
diminish the Reservation. 174 P.3d at 1273-1284. Applying this Court’s diminishment caselaw, the court concluded that “it was the intent of Congress in passing the
1905 Act to diminish the Wind River Indian Reservation
and to remove from it the lands described as ‘ceded,
granted, and relinquished’ thereunder.” Id. at 1284.
The Tenth Circuit subsequently rejected the Yellow-
20
bear defendant’s petition for post-conviction relief, explaining that he failed to provide “any reason to think”
the Wyoming Supreme Court’s “thorough and detailed”
decision was incorrect, Yellowbear, 380 Fed. Appx. at
743, and this Court denied the defendant’s petition for
a writ of certiorari, Yellowbear, 562 U.S. at 1228. 8
b. Contrary to petitioners’ contentions (EST Pet.
10-15; NAT Pet. 24-26), the court of appeals’ decision
does not conflict with the Eighth Circuit’s 1987 decision
in United States v. Grey Bear, 828 F.2d 1286, vacated in
part on other grounds, 836 F.2d 1088. Grey Bear considered whether the Act of Apr. 27, 1904 (1904 Act),
ch. 1620, 33 Stat. 319, disestablished the Devils Lake
Sioux Indian Reservation in North Dakota. 828 F.3d at
1289-1290. 9 That Act stated that the tribe “cede[d], surrender[ed], grant[ed], and convey[ed] to the United
States” certain lands. Id. at 1290 (quoting 1904 Act,
Art. I, 33 Stat. 321) (emphasis omitted). The Eighth
Circuit concluded that this language, “standing alone,
does not evince a clear congressional intent to disestablish the Devils Lake Reservation.” Ibid.; see also ibid.
(“[W]e refuse, without more, to infer” clear congressional intent to disestablish the reservation.); id. at 1290
n.5 (noting that this Court’s cases finding diminishment
had not “rel[ied] solely upon this language of cession”).
Prior to Moss and Yellowbear, the Wyoming Supreme Court
held that the State had authority to prosecute an Indian for a crime
committed within the area affected by the 1953 Act. Blackburn v.
State, 357 P.2d 174 (1960). Because Blackburn considered both the
1905 and 1953 Acts, the Moss and Yellowbear courts found that it
was not dispositive of the question presented in those cases. Yellowbear, 174 P.3d at 1283; Moss, 471 P.2d at 337.
9
The Devils Lake Reservation is now known as the Spirit Lake
Indian Reservation. See United States v. Lara, 541 U.S. 193 (2004).
8
21
In addition, the Eighth Circuit explained that although
“[t]he legislative history” of the relevant act was “inconclusive,” the “[ j]urisdictional history of [the] lands” and
“subsequent congressional enactments” supported its
finding that the reservation’s boundaries were not disestablished. Id. at 1291.
The court of appeals’ decision in this case is not in
conflict with Grey Bear. Here, the court did not rest its
decision on the 1905 Act’s language of cession “standing
alone.” Grey Bear, 828 F.2d at 1290. It relied on that
language in combination with the 1905 Act’s various
“references to diminishment.” EST Pet. App. 19a. And
unlike in Grey Bear, see 828 F.2d at 1290-1291, the court
concluded that evidence at step two of the Solem
framework—including “Congress’s longstanding desire
to sever from the Wind River Reservation the area
north of the Big Wind River,” EST Pet. App. 20a, the
history of negotiations, and the negotiator’s statements
to the Tribes and in his report of the negotiations—
confirmed its view that Congress intended to diminish
the Reservation, id. at 20a-29a; see id. at 14a n.*******
(discussing Grey Bear). That the Eighth and Tenth
Circuits reached different conclusions regarding different statutes enacted against different historical backdrops does not support petitioners’ assertion of a conflict warranting this Court’s review. See Solem, 465 U.S.
at 469 (“The effect of any given surplus land Act depends on the language of the Act and the circumstances
underlying its passage.”).
3. Finally, contrary to petitioners’ suggestions (e.g.,
EST Pet. 3; NAT Pet. 1), this Court’s review is not necessary to restore the status quo regarding the boundaries of the Reservation. At least since the Wyoming Supreme Court’s decision in Moss in 1970, the question of
22
the allocation of criminal jurisdiction on lands sold pursuant the 1905 Act has been settled. 471 P.2d at 339;
see also Yellowbear, 174 P.3d at 1284. The United
States does not assert Indian country criminal jurisdiction over the lands ceded in the 1905 Act and not subsequently returned to full trust status. The decision below
is thus consistent with longstanding expectations regarding the allocation of jurisdiction in the region. But
see EST Pet. App. 33a-35a (finding “jurisdictional and
judicial treatment of the area” inconclusive because
Wyoming and some federal agencies have at times exercised civil jurisdiction over the area).
Nor is petitioner EST correct (Pet. 33-34) that the
decision below threatens to upend expectations regarding other reservations. That argument depends on the
notion that “[u]nder the decision below,” other land acts
will “automatically be deemed to show clear congressional intent to diminish solely because” they contain
“cession language—and regardless of whether other
textual or non-textual factors counsel against such a
conclusion.” Ibid. But as discussed above, see pp. 1316, supra, the court of appeals’ decision does not depend
solely on language of cession. Thus, “[t]he effect of any
given surplus land Act” will continue to depend—as did
the court’s decision in this case—“on the language” of
the particular Act “and the circumstances underlying
its passage.” EST Pet. App. 9a (quoting Solem, 465 U.S.
at 469).
23
CONCLUSION
The petitions for writs of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JEFFREY H. WOOD
Acting Assistant Attorney
General
SAMUEL C. ALEXANDER
Attorney
MAY 2018
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