By Joe Sexton
Working in Indian Country, I often hear about perils of putting a tribe’s treaty on trial. I see those perils play out in state and federal court decisions cutting against tribal sovereign interests. Of course, policy considerations and threats against sovereignty will compel tribes to bravely fight for what their Ancestors secured to them in “negotiations”—which usually involved a threat of mass murder looming over the Indians’ heads. In a recent case, the tribes of the Wind River Reservation made a decision that put their treaty—and, more specifically, their reservation—on trial. So far, the fight is not going well.
In February of this year, a panel of judges with the United States Court of Appeals for the 10th Circuit decided that the Wind River Reservation was diminished by act of Congress in 1905. This month, the 10th Circuit denied a petition for rehearing en banc of its decision in the State of Wyoming v. United States Environmental Protection Agency, --F.3d --, 2017 WL 5153204 (10th Cir. 2017). The Eastern Shoshone and Northern Arapahoe Tribes—both of which jointly inhabit the Wind River Reservation—argued that this act did not reflect a clear intent by Congress to diminish their reservation. The EPA sided with the Tribes. The State of Wyoming, among other appellants, challenged the EPA decision and have so far prevailed.
The case arises from an EPA decision granting the Tribes’ application to jointly administer certain programs under the Clean Air Act on the Wind River Reservation. The application required the Tribes to show they had jurisdiction over the land they sought to administer under the Clean Air Act. In their application, the Tribes asserted they controlled land within the exterior boundaries of the Wind River Reservation as generally reflected by the original 1868 Treaty boundaries of the reservation. In 2011, the a solicitor with the U.S. Department of the Interior issued a legal opinion concurring with the Tribes. The EPA relied on the decision and granted the application, which Wyoming and others appealed to the U.S. Court of Appeals for the 10th Circuit. by virtue of a statutory provision permitting direct appeals from regional federal agency decisions.
The 10th Circuit’s decision focuses on a long-standing three-part test federal courts employ in determining whether a tribe’s reservation has been diminished. The lynchpin to that test is the notion that Congress holds the exclusive power to diminish a tribe’s reservation, but “its intent to do so must be clear.” First under this three-part test, a court first looks to the statutory text as “[t]he most probative evidence congressional intent.” The second step requires an examination of the circumstances regarding the legislative act itself that is claimed to have diminished a reservation. This step includes a review of any negotiations with the tribes involved, legislative history and reports presented to Congress. The third step is the least important in terms of weight given to the ultimate question of diminishment. It involves an analysis of “the subsequent treatment of the area in question and the pattern of settlement there.”
In applying this test, the U.S. Supreme Court instructs that “[a]mbiguities must be resolved in favor of the Indians, and the Court will not lightly find diminishment.”
A central point of contention in this case involving diminishment of the Wind River Reservation is the lack of an amount certain offered in exchange for the lands. This point of contention comes into focus in Judge Lucero’s pointed dissent, where he notes how this case breaks with long-standing diminishment jurisprudence and effectively invites further weaker diminishment claims against tribal sovereignty and jurisdiction:
In 1905, Congress passed an act transferring certain lands in the Wind River Reservation to the United States. The federal government was to act as trustee by selling the lands and paying the Indians the proceeds . . . . From this placement of property into trust status in exchange for a conditional promise of payment, my colleagues in the majority infer clear congressional intent to diminish the Wind River Reservation. I cannot agree. By deriving an intent to diminish absent sum-certain payment or statutory language restoring lands to the public domain, the majority opinion creates a new low-water mark in diminishment jurisprudence.
Wind River Native Advocacy Center Board Chair Sergio Maldonado indicated the tribes would appeal this ruling to the U.S. Supreme Court. Whether the Supreme Court will hear the case remains to be seen, having recently accepted and decided a diminishment case, Nebraska v. Parker, 136 S. Ct. 1072 (2016). Whatever the ultimate outcome, however, this case reveals the perils tribes face in simply attempting to help manage their lands. Here, the tribes on the Wind River Reservation sought to administer programs under the Clean Air Act and wound up with their reservation on trial and a federal appeals court decision diminishing their reservation lands.
Joe Sexton is a partner at Galanda Broadman, PLLC. Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters. He can be reached at (509) 910-8842 and firstname.lastname@example.org.
 As the 10th Circuit majority decision notes, EPA final actions impacting a region are directly appealable to the U.S. Court of Appeals. See 42 U.S.C. § 7607(b)(1).
 Nebraska v. Parker, 136 S. Ct. 1072 (2016).
 Solem v. Bartlett, 465 U.S. 464, 470 (1984).
 Id. at 471.
 South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 344 (1998).