Same method, different answer for dissent in rez boundary case

Mar 2, 2017 From staff reports

In his dissent to last month's ruling that a 1905 Act of Congress did diminish the boundaries of the Wind River Indian Reservation, Tenth Circuit Court of Appeals judge Carlos Lucero applied the same three-step analysis as chief judge Timothy Tymkovich did in the majority opinion.

Lucero came to a different conclusion, however: that the 1905 Act did not diminish reservation boundaries.

No payment

Congress does possess the unilateral authority to diminish the reservations, Lucero began, but "we must not lightly assume that Congress has exercised this destabilizing power."

"Only when express statutory language, legislative history, and surrounding circumstances 'point unmistakably to the conclusion that' a reservation was diminished should we read a statute as having that effect," he wrote.

Statutory text states diminishment only has taken place when there is a "total surrender of all tribal interests" as well as an "unconditional commitment from Congress to compensate the Indian tribe for its opened land." But Lucero noted the 1905 Act, which transferred certain lands in the Wind River Indian Reservation to the United States, did not include "sum-certain payment or statutory language restoring lands to the public domain." Instead, the Act provided that the United States would act as a trustee for disposal of the land and would pay the tribes the proceeds received from the sale of the property. The Act even enumerates that nothing in the agreement binds the United States to purchase any of the land in question.

Further, because the lands in question were held in trust, they remained Indian lands and not in the public domain.

Lucero believes the majority opinion "too easily dismisses the trust status of the lands at issue."

"Congress' decision not to restore these lands to the public domain cuts strongly against the majority's conclusion that the Reservation was diminished," he wrote.

Given the absence of a "sum-certain" payment, and the fact that the lands were not restored to public domain, Lucero said it would be easy to interpret the language of cession in the 1905 Act as "merely opening portions of the Wind River Reservation to settlement" and not diminishing the reservation.

Circuit split

Lucero pointed to an earlier Eighth Circuit decision regarding the Devils Lake Indian Reservation. In that case, he said, the court held that the text did not show a "clear congressional intent to disestablish" the reservation because there was no "unconditional commitment" to pay for the ceded land.

Lucero said the majority opinion in the WRIR case was "squarely opposite" of the Eighth Circuit's decision, "creating a needless circuit split."

The Supreme Court has counseled that, when faced with two possible outcomes, "statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit."

"Adhering to that principle in this case, we must read the 1905 Act as providing for sale and opening of lands rather than diminishment," Lucero wrote.


In some circumstances, he continued, moving to the second portion of his analysis, courts have found diminishment even without unconditional compensation, but only if the incident shows a "widely-held" understanding that the affected reservation would shrink as a result of proposed legislation. But Lucero pointed to some legislative history surrounding portions of the 1905 Act that show an intent not to diminish the reservation.

For example, Congress omitted a school lands provision from the act, "demonstrating its view that the opened lands retained their Reservation status."

Another provision granted Asmus Boysen a preferential right to lease new lands in the reservation. Some opposed the provision, arguing that Boysen shouldn't get preferential rights because his lease would terminate upon passage of the Act, and because other people who may want to enter and settle upon the lands to be opened should stand on equal footing.

"By describing the 'lands to be opened' as being 'in said reservation,'... the 1905 Act demonstrates Congress' understanding that the opened areas would retain their reservation status," Lucero wrote.

At best, he added, the historical record is mixed and so is "insufficient to overcome ambiguity in the statutory text."


The final consideration in the three-step process has to do with events that took place after passage of the 1905 Act, but Lucero said "this third prong comes into play only at the margins." If the act and its legislative history don't provide compelling evidence of congressional intention to diminish Indian lands, Lucero wrote, the court is bound to rule that diminishment did not take place.

"Because the statutory text and legislative history in this case fail to provide compelling evidence of congressional intent to diminish, we need not consider this third prong," he wrote. "Even if we did, however, I agree with the majority that the post-Act record is so muddled it does not provide evidence of clear congressional intent."

The lack of clarity can't be treated as a neutral element though, he continued. If it is not clear that Congress wanted to diminish the WRIR, proponents of diminishment have to show that non-Indian settlers "flooded into the open portion" of the reservation, and that the area has "long since lost its Indian character."

"The appellants have not met this burden," Lucero wrote.

He characterized land sales in the opened area as "largely a failure." By 1915, Lucero said, less than 10 percent of the land was sold to non-Indians, prompting the Department of the Interior to indefinitely postpone further sales. Ultimately, less than 15 percent of the open area was transferred to non-Indians, he said, and in 1939 Congress restored tribal ownership over the unsold land.

"There can be little doubt that most of the opened area retains its Indian character," Lucero wrote. "Accordingly, we face no risk of upsetting 'justifiable expectations' ... by construing the 1905 Act as maintaining Reservation boundaries."

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