STATE OF WYOMING, and WYOMING FARM BUREAU FEDERATION Petitioners,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; E. SCOTT PRUITT, in his official capacity as Administrator of the United States Environmental Protection Agency; DEB THOMAS, in her official capacity as Acting Region 8 Administrator of the United States Environmental Protection Agency, [*]Respondents. THE NORTHERN ARAPAHO TRIBE; EASTERN SHOSHONE TRIBE; CITY OF RIVERTON, WYOMING; FREMONT COUNTY, WYOMING, Intervenors. STATE OF IDAHO; STATE OF ALABAMA; STATE OF COLORADO; STATE OF KANSAS; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE OF OKLAHOMA; STATE OF SOUTH DAKOTA; STATE OF UTAH; INDIAN LAW PROFESSORS; RIVERTON MEMORIAL HOSPITAL, LLC, Amici Curiae.
FOR REVIEW OF A FINAL ORDER FROM THE ENVIRONMENTAL PROTECTION
AGENCY (NO. EPA-1-R08-2013-0007)
Michael McGrady (Peter K. Michael, Wyoming Attorney General,
Jay Jerde and James Kaste with him on the briefs), Office of
the Attorney General for the State of Wyoming, Cheyenne,
Wyoming, for Petitioner State of Wyoming.
Cannan (Steven J. Lechner with her on the briefs), Mountain
States Legal Foundation, Lakewood, Colorado, for Petitioner
Wyoming Farm Bureau Federation.
C. Alexander, Chief, Indian Resources Section (John C.
Cruden, Assistant Attorney General, Washington, D.C., and
David A. Carson, Environmental Defense Section, Denver,
Colorado, with him on the briefs) Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C., for Respondents.
A. Rudd (Andrew W. Baldwin, Berthenia S. Crocker, and Janet
E. Millard with him on the briefs) Baldwin, Crocker &
Rudd, Lander, Wyoming, for Intervenor Northern Arapaho Tribe.
R. Wharton (Robert Hitchcock, Eastern Shoshone Tribe, Office
of the Attorney General, Fort Washakie, Wyoming, with him on
the briefs), Native American Rights Fund, Boulder, Colorado,
for Intervenor Eastern Shoshone Tribe.
A. Darrough, Deputy Fremont County Attorney, and Rick L.
Sollars, City Attorney, City of Riverton, Wyoming, on the
briefs for Intervenors Fremont County and City of Riverton,
Lawrence G. Wasden, Attorney General, Steven L. Olsen, Chief
of Civil Litigation, and Clay R. Smith, Deputy Attorney
General, Boise, Idaho, Luther Strange, Attorney General,
Montgomery, Alabama, John Suthers, Attorney General, Denver,
Colorado, Derek Schmidt, Attorney General, Topeka, Kansas;
Tim Fox, Attorney General, Helena, Montana, Jon Bruning,
Attorney General, Lincoln, Nebraska; Wayne Stenehjem,
Attorney General, Bismark, North Dakota, E. Scott Pruitt,
Attorney General, Oklahoma City, Oklahoma, Marty Jackley,
Attorney General, Pierre, South Dakota, and Sean D. Reyes,
Attorney General, Salt Lake City, Utah, on the brief for
Amici Curiae States of Idaho, Alabama, Colorado, Kansas,
Montana, Nebraska, North Dakota, Oklahoma, South Dakota, and
Colette Routel, William Mitchell College of Law, Saint Paul,
Minnesota, Bethany Berger, University of Connecticut School
of Law, Hartford, Connecticut, and Sarah Wheelock, Tilden
McCoy Dilweg LLP, Sioux City, Iowa, on the brief for Amici
Curiae Indian Law Professors.
J. Kuhn, LaMar F. Jost, and H. Camille Papini-Chapla, Wheeler
Trigg O'Donnell LLP, Denver, Colorado, and Patrick J.
Murphy, Williams, Porter, Day & Neville, P.C., Casper,
Wyoming, on the brief for Amicus Curiae Riverton Memorial
TYMKOVICH, Chief Judge, KELLY, and LUCERO, Circuit Judges.
TYMKOVICH, Chief Judge.
case requires us to determine whether Congress diminished the
boundaries of the Wind River Reservation in Wyoming in l905.
We find that it did.
Eastern Shoshone and Northern Arapaho Tribes jointly inhabit
the Wind River Reservation. The State of Wyoming and the
Wyoming Farm Bureau Federation challenge a decision by the
Environmental Protection Agency granting the Tribes'
application for joint authority to administer certain
non-regulatory programs under the Clean Air Act on the
Reservation. As part of their application for administrative
authority, the Tribes were required to show they possess
jurisdiction over the relevant land. In their application,
the Tribes described the boundaries of the Wind River
Reservation and asserted that most of the land within the
original 1868 boundaries fell within their jurisdiction.
and others submitted comments to the EPA arguing the
Reservation had been diminished in 1905 by act of Congress,
and that some land described in the application was no longer
within tribal jurisdiction. After review, the EPA determined
the Reservation had not been diminished in 1905 and the
Tribes retained jurisdiction over the land at issue. Because
the EPA decided the Tribes otherwise satisfied Clean Air Act
program requirements, it granted their application.
and the Farm Bureau appealed the EPA's Reservation
boundary determination. Regionally applicable final actions
of the EPA are directly appealable to this court. Exercising
jurisdiction under 42 U.S.C. § 7607(b)(1), we grant the
petition for review, vacate the EPA's boundary
determination, and remand for further proceedings consistent
with this opinion. We find by its 1905 legislation, Congress
evinced a clear intent to diminish the Reservation.
history of federal Indian policy in the United States is
marked by a series of eras, each characterized by a different
approach to the inevitable conflict between the Native
Americans who inhabited western America and homesteaders
flooding west in search of a better life. Cohen's
Handbook of Federal Indian Law 7-8 (Nell Jessup Newton
et al. eds., 2012). The story of the Wind River Reservation
begins in the second half of the nineteenth century, when a
new federal policy of allotment and assimilation began to
take shape, which followed a period when Indian reservations
were created throughout the western United States.
Unsurprisingly, westward expansion placed pressures on the
traditional lifestyles of the Native American tribes.
Recognizing the potential for conflicts, particularly over
land, the United States negotiated a series of treaties and
agreements with dozens of tribes, including the Eastern
Eastern Shoshone are part of the larger Shoshone Tribe, who
in the mid-nineteenth century inhabited what would become the
states of Colorado, Idaho, Nevada, Utah, and Wyoming. Henry
Stamm, People of the Wind River 9 (1999). In 1863,
the United States and the Eastern Shoshone entered into the
First Treaty of Fort Bridger, 18 Stat. 685 (1863), which
established "Shoshonee County, " an area
encompassing more than forty-four million acres. See
United States v. Shoshone Tribe of Indians of Wind River
Reservation of Wyo., 304 U.S. 111, 113 (1938). But the
treaty proved to be short lived. With the end of the Civil
War, a new wave of settlers forged westward. Fearing the
Eastern Shoshone's homeland would be settled and thus
lost forever, the tribal leader, Chief Washakie, urged the
United States to reserve the Wind River Valley-the
Tribe's historic buffalo hunting grounds-as the Eastern
Shoshone's permanent homeland.
Washakie's efforts were successful: in 1868, the United
States and the Eastern Shoshone Tribe signed the Second
Treaty of Fort Bridger, 15 Stat. 673 (1868). This treaty set
aside roughly three million acres for exclusive tribal use.
In exchange, the Tribe relinquished its claim to the land
held under the 1863 treaty. Shoshone, 304 U.S. at
113. As it had promised, the United States developed the
Reservation's infrastructure and began to establish and
expand agricultural lands in an effort to aid the Eastern
Shoshone's transition away from hunting wild game, which
was rapidly disappearing. For their part, the Eastern
Shoshone resolved to settle permanently on the Reservation,
pursue an agrarian lifestyle, and send their children to
school. But land issues persisted: settlers vied for
agricultural lands south of the Big Wind River, and the
Reservation's superintendent feared it would be
impossible to observe the boundaries created by the 1868
Meanwhile, Congress had departed from its previous policy of
segregating tribes from homesteaders in favor of a new policy
of educating Native American children in residential boarding
schools and splitting up communal, tribally owned
reservations into individual, privately owned parcels of
land. Judith V. Royster, The Legacy of Allotment, 27
Ariz. St. L.J. 1, 7-9 (1995). At the time, Congress, and
indeed most of America, assumed the reservation system would
eventually cease to exist and members of Native American
tribes would become fully assimilated into American society.
See Solem v. Bartlett, 465 U.S. 463, 468 (1984);
Marta Adams et al., American Indian Law Deskbook 93
(2015). Thus, reservations began to shrink in size. In 1874,
the Eastern Shoshone Tribe sold all of its land south of the
forty-third parallel in the so-called Lander Purchase in
exchange for a payment of $25, 000. 18 Stat. 291, 292 (1874).
According to the ratifying act, this transaction
"change[d] the southern limit of said reservation."
18 Stat. at 292. Around this time, the Northern
Arapaho-traditionally, an enemy of the Eastern
Shoshone-joined the Eastern Shoshone on the Wind River
Reservation, where they remain today. 1877 Comm'r Indian
Aff. Ann. Rep. 19.
Wind River Reservation boundaries changed again in 1897, when
Congress passed legislation purchasing additional land. That
act, known as the Thermopolis Purchase, provided that, in
exchange for $60, 000, the Tribes agreed to "cede,
convey, transfer, relinquish, and surrender forever and
absolutely all their right, title, and interest of every kind
and character" in a tract around the Big Horn Hot
Springs, located on the northern boundary of the Reservation.
30 Stat. 93, 94 (1897). Following up on failed efforts to
acquire additional land from the Tribes in 1891 and 1893, in
1904 Representative Frank Mondell of Wyoming introduced a
bill initiating the cession of the land north of the Big Wind
River flowing through the north-central portion of the
Reservation. The 1904 legislation was the framework for
negotiations with the Tribes, which the Tribes ultimately
agreed to as amended. Congress passed the 1904 agreement in
1905. 33 Stat. 1016 (1905). It is the 1905 Act that is at
issue in this case.
1905 Act was not the last piece of legislation affecting the
Reservation. In 1934, Congress enacted the Indian
Reorganization Act, the first step in its new national policy
of tribal self-determination. See 48 Stat. 984
(1934). Since the Tribes voted to exclude themselves from
this Act, however, Congress had to pass specific legislation
to carry out its new policies on the Wind River Reservation.
Thus, in 1939, Congress directed the Secretary of the
Interior to restore to tribal ownership any unsold lands in
the area that had been ceded in 1905. 53 Stat. 1128, 1129
brings us to the present day. Currently, approximately
seventy-five percent of the land affected by the 1905 Act is
held in trust by the United States for the Tribes and their
members. In 2008, the Tribes applied to the EPA for authority
to manage certain non-regulatory programs for air quality in
areas under tribal jurisdiction. They were able to do so
because in 1990, Congress amended the Clean Air Act, 42
U.S.C. §§ 7401-671 (CAA), to authorize the EPA to
treat Native American tribes as states for the purposes of
the CAA. § 7601(d). Pursuant to this grant of authority,
the EPA promulgated the Tribal Authority Rule, 40 C.F.R. 49,
under which qualified tribes may apply for authority to
implement and manage programs for air quality in areas under
tribal jurisdiction. 42 U.S.C. § 7601(d)(2)(B).
successful application must describe the area over which a
tribe seeks to assert its regulatory authority. Thus, in
their application, the Tribes had to specify the proposed
scope of their regulatory jurisdiction, which required them
to clearly delineate the boundaries of the Reservation. The
Tribes claimed the boundaries of the Wind River Reservation
were those set forth in the 1868 treaty, reduced only by the
Lander and Thermopolis transactions. As required by the CAA,
the EPA notified all governmental entities located contiguous
to the Reservation and provided local government and the
general public notice and an opportunity to comment on the
proposed boundary description. When a treatment-as-a-state
application is subject to an objection, EPA may also request
additional information or consult with the Department of the
Interior. 40 C.F.R. § 49.9(d).
their comments, Wyoming and the Farm Bureau argued the
Reservation was diminished by the 1905 Act, which, they
contended, established the current boundaries of the
Reservation. Based on these objections, the EPA asked the
Department of the Interior for an analysis of the competing
claims. In 2011, the solicitor issued a legal opinion
concluding the 1905 Act had not changed the boundaries
established by the 1868 treaty. Relying on this analysis, the
EPA issued its final decision granting the Tribes'
application. The decision agreed with the Tribes'
interpretation that the 1905 Act did not diminish the
boundaries of the Reservation.
task here is limited: we must determine whether Congress
diminished the Wind River Reservation in 1905 by legislative
As we have previously explained, only Congress has the power
to diminish reservation boundaries, and its intent "must
be clearly expressed." Osage Nation v. Irby,
597 F.3d 1117, 1121-22 (10th Cir. 2010). Even further,
diminishment "will not be lightly inferred."
Solem v. Bartlett, 465 U.S. 463, 470 (1984).
Nevertheless, we may not "'ignore plain language
that, viewed in historical context and given a fair appraisal
clearly runs counter to a tribe's later
claims.'" Osage Nation, 597 F.3d at 1122
(quoting Pittsburg & Midway Coal Mining Co. v.
Yazzie, 909 F.2d 1387, 1393 (10th Cir. 1990)).
Supreme Court has declined to infer a congressional purpose
of diminishment from the passage of every surplus land act
during the allotment and assimilation period. "Rather,
it is settled law that some surplus land acts diminished
reservations, and other surplus land acts did not."
Solem, 465 U.S. at 469 (citations omitted).
"The effect of any given surplus land Act depends on the
language of the Act and the circumstances underlying its
passage." Id. To determine whether the 1905 Act
had the effect of diminishing the Reservation, we look to the
well-settled approach described in Solem, where the
Court outlined a hierarchical, three-step framework to
ascertain congressional intent.
we look to the text of the statute, because it is "[t]he
most probative evidence of congressional intent."
Id. at 470; see also Nebraska v. Parker,
136 S.Ct. 1072, 1079 (2016) ("[W]e start with the
statutory text, for '[t]he most probative evidence of
diminishment is, of course, the statutory language used to
open Indian lands.'" (citation omitted) (second
alteration in original)).
we examine the circumstances surrounding the passage of the
act, "particularly the manner in which the transaction
was negotiated with the tribes involved and the tenor of
legislative reports presented to Congress."
Solem, 465 U.S. at 471; see also Parker,
136 S.Ct. at 1079; South Dakota v. Yankton Sioux
Tribe, 522 U.S. 329, 351-52 (1998).
and finally, "to a lesser extent, " we look to
"the subsequent treatment of the area in question and
the pattern of settlement there." Id. at 344;
Solem, 465 U.S. at 471-72.
doing so, we afford no deference to the EPA's boundary
determination. As our precedents tell us, "'the
Supreme Court has applied, without comment, a de novo
standard of review in determining congressional intent
[regarding reservation boundary diminishment].'"
Osage Nation, 597 F.3d at 1122 (alteration in
original) (quoting Yazzie, 909 F.2d at 1393).
Although examination of the historical record "involves
a mixed question of law and fact, " de novo review is
appropriate "[w]here a mixed question 'primarily
involves the consideration of legal principles.'"
Id. at 1393-94 (quoting Supre v. Ricketts,
792 F.2d 958, 961 (10th Cir. 1986)). The EPA does not dispute
this standard of review, because it concedes a de novo
standard is "consistent with the [Administrative
Procedure Act's] 'otherwise not in accordance with
the law' standard, " Aple. EPA Br. 23, which we
apply to the agency action here.
The Text of the 1905 Act
begin our analysis with the 1905 Act's operative
language, for "[s]tatutory language is the most
probative evidence of congressional intent to disestablish or
diminish a reservation." Osage Nation, 597 F.3d
at 1122-23. "'Explicit reference to cession or other
language evidencing the present and total surrender of all
tribal interests strongly suggests that Congress meant to
divest from the reservation all unallotted opened
lands.'" Id. at 1123 (quoting
Solem, 465 U.S. at 470). There are no magic words of
cession required to find diminishment. Rather, the statutory
language, whatever it may be, must "establis[h] an
express congressional purpose to diminish." Hagen v.
Utah, 510 U.S. 399, 411 (1994).
Article I of the 1905 Act reads,
The said Indians belonging on the Shoshone or Wind River
Reservation, Wyoming, for the consideration hereinafter
named, do hereby cede, grant, and relinquish to the
United States, all right, title, and interest which they
may have to all the lands embraced within said reservation,
except the lands within and bounded by the following lines .
. . .
33 Stat. at 1016 (emphasis added). This language of cession
aligns with the type of language the Supreme Court has called
"precisely suited" to diminishment. Yankton
Sioux, 522 U.S. at 344. Indeed, it is nearly identical
to the statutory language in cases where the Supreme Court
has found a congressional purpose to diminish a reservation
in the statute's text.
example, in DeCoteau v. District County Court for the
Tenth Judicial District, the Court considered
an act providing that the Sisseton-Wahpeton Tribe agreed to
"cede, sell, relinquish, and convey to the United States
all their claim, right, title, and interest in and to all the
unallotted lands within the limits of the reservation."
420 U.S. 425, 445 (1975). The Court found this language was
precisely suited to a congressional purpose of terminating
the Lake Traverse Indian Reservation. Id. Similarly,
in Rosebud Sioux Tribe v. Kneip, the Court held
Congress clearly evinced an intent to diminish the boundaries
of the Rosebud Sioux Reservation when it passed a series of
acts affecting unallotted lands on that reservation. 430 U.S.
584, 615 (1977). The first act, passed in 1904, provided that
the Rosebud Sioux Tribe agreed to "cede, surrender,
grant, and convey to the United States all their claim,
right, title, and interest in and to" the unallotted
portion of its reservation. Id. at 597. This too,
the Court held, was language precisely suited to
decades later, in Hagen, the Court found Congress
evinced a clear intent to diminish a reservation even when it
employed less express language of cession. The operative
language of the statute at issue provided that "all the
unallotted lands within said reservation shall be restored to
the public domain." 510 U.S. at 412. The Court held this
language evidenced a congressional intent "inconsistent
with the continuation of reservation status."
Id. at 414. And in Yankton Sioux, the Court
unanimously held Congress spoke with a clear purpose of
diminishment when it passed an act providing that the Yankton
Sioux Tribe would "cede, sell, relinquish, and convey to
the United States all their claim, right, title, and interest
in and to all the unallotted lands within the limits of the
reservation." 522 U.S. at 344, 351.
contrast, in cases where the Court has found a lack of clear
congressional intent to diminish, the operative language of
the statutes merely opened a reservation to settlement by
non-Indians or authorized the Secretary of the Interior to
act as a "sales agent" for the Native American
tribes. For example, in Seymour v. Superintendent of
Wash. State Penitentiary, the Court concluded that an
act providing "for the sale of mineral lands and for the
settlement and entry under the homestead laws of surplus
lands remaining on the diminished Colville Reservation after
allotments were first made . . . did no more than open the
way for non-Indian settlers to own land on the
reservation." 368 U.S. 351, 354-56 (1962). Similarly, in
Mattz v. Arnett, the Court held an act providing
that lands within a reservation were "subject to
settlement, entry, and purchase" did not, on its own,
"recite or even suggest that Congress intended thereby
to terminate the Klamath River Reservation." 412 U.S.
481, 495-97 (1973).
operative language in Solem itself was similar: the
act merely "authorized and directed" the Secretary
of the Interior "to sell and dispose of all that portion
of the Cheyenne River and Standing Rock Indian
reservations" within the described boundaries. 465 U.S.
at 472-73. The Court compared the language to the acts in
Rosebud and DeCoteau and concluded that
unlike in those cases, "the Secretary of the Interior
was simply being authorized to act as the Tribe's sales
agent." Id. at 473. The Court added,
"Nowhere else in the Act is there specific reference to
the cession of Indian interests in the opened lands or any
change in existing reservation boundaries." Id.
at 474. Likewise, just last year in
Parker, the Court held that an act stating the
disputed lands would be "'open for settlement under
such rules and regulations as [the Secretary of the Interior]
may prescribe, '" 136 S.Ct. at 1079 (alteration in
original) (quoting 22 Stat. 341 (1882)), fell into the
category of acts that "'merely opened reservation
land to settlement, '" id. (quoting
DeCoteau, 420 U.S. at 448).
the 1905 Act falls into the first line of cases: those with
express language of cession. Nevertheless, the EPA and the
Tribes argue that Congress's intent remains unclear,
because of the absence of words such as "sell" or
"convey" that were present in other statutes during
the period. But our task is not to divine why Congress may
have chosen certain synonyms over others in this particular
Act. We believe Congress's use of the word
"cede" can only mean one thing-a diminished
reservation. A review of several dictionaries from the turn
of the twentieth century confirms that adding the words
"sell" or "convey" would not materially
change the intent Congress evinced in the 1905
And in any event, Article II of the 1905 Act includes the
In consideration of the lands ceded, granted,
relinquished, and conveyed by Article I of this
agreement, the United States stipulates and agrees to dispose