Pawnee Nation of Oklahoma v. Zeldin

majority opinion

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FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS October 16, 2026

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

PAWNEE NATION OF OKLAHOMA,

Petitioner,

v. No. 25-9548

LEE ZELDIN, in his official capacity as

U.S. Environmental Protection Agency

Administrator; UNITED STATES

ENVIRONMENTAL PROTECTION

AGENCY,

Respondents.

Appeal from the Environmental Protection Agency

Michael S. Freeman (Rachael Jaffe, with him on the briefs), Earthjustice, Denver, Colorado, for Petitioner.

Cameron Hinojos (Adam R.F. Gustafson, Principal Deputy Assistant Attorney General; Robert Stander, Deputy Assistant Attorney General; and Laura Brown, with him on the brief), Environment and Natural Resources Division, United States Department of Justice, Washington, District of Columbia, for Respondents.

Before TYMKOVICH, BACHARACH, and FEDERICO, Circuit Judges.

TYMKOVICH, Circuit Judge.

Congress in 2005 approved a provision contained in a transportation funding

bill that came to be known as the “Midnight Rider,” because it was added last minute

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and without discussion. The Rider allowed Oklahoma to regulate environmental

programs in Indian country upon approval by the Environmental Protection Agency.

The provision lay dormant for fifteen years since Oklahoma never asked the EPA to

use it. But after the Supreme Court in McGirt v. Oklahoma, 591 U.S. 894 (2020),

expanded the scope of Indian country to encompass almost the entirety of eastern

Oklahoma, the State sought to invoke the Rider. The EPA ultimately granted

Oklahoma’s request in 2025, over the objection of several tribal nations, including

the Pawnee Nation of Oklahoma.

In this action, Pawnee Nation petitions for judicial review of EPA’s decision to

approve Oklahoma’s request to extend the State’s administration of federal

environmental programs to Indian country. Oklahoma first made its request in 2020

under the Rider: § 10211(a) of the Safe, Accountable, Flexible, Efficient

Transportation Equity Act: A Legacy for Users (SAFETEA), Pub. L. No. 109-59, 119

Stat. 1144 (2005). The EPA initially granted Oklahoma’s request that same year but

later withdrew its decision to provide for a longer period of consultation with the

affected tribal nations. In 2025, after reconsidering Oklahoma’s request for more

than three years, the EPA again approved the request.

Pawnee Nation challenges the 2025 approval, contending that the EPA’s

decision rests on several erroneous interpretations of § 10211(a) and was thus

contrary to law under the APA. Pawnee Nation seeks an order vacating the decision

because it says the agency’s action pursuant to § 10211(a) was ultra vires given that

the provision expired in 2009. Pawnee Nation also argues that even if the provision

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is not expired, the EPA’s decision-making process was inconsistent with § 10211(a)’s

statutory requirements and we should therefore vacate the agency’s decision and

remand for further administrative proceedings on Oklahoma’s request.

Exercising our exclusive jurisdiction under 33 U.S.C. § 1369(b)(1) to review

Pawnee Nation’s challenge, we DENY its petition and AFFIRM the EPA’s

interpretation of § 10211(a). We conclude § 10211(a)’s plain meaning

unambiguously indicates that the provision remains active and did not expire in 2009.

We also conclude that the EPA acted in accordance with the provision’s requirements

when granting Oklahoma’s request.

I. Background

We first provide a review of the relevant regulatory framework and then turn

to Pawnee Nation’s APA challenges.

A. Regulatory Background

Congress has given the EPA the authority to delegate to the states the

administration of a number of environmental regulatory programs. That way, states

can step in the shoes of the EPA as the primary regulatory authority within their

state. States typically submit a program application to the EPA, and if the program

meets applicable statutory and regulatory requirements, the EPA can approve the

state’s request.

The EPA, however, retains oversight authority over the state’s regulatory

program to ensure it continues to comply with federal law. “EPA oversight of state

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programs generally involves a number of interactions, including scheduled reviews of

state programs, reviews of specific regulatory actions such as draft state permits, and

consideration of compliance and enforcement issues.” R. at 937. Over the years, the

EPA has allowed Oklahoma to administer at least twenty-six State regulatory

programs under six different federal environmental statutes. See R. at 1140–41

(listing programs under the Resource Conservation Recovery Act; the Clean Air Act;

the Clean Water Act; the Safe Drinking Water Act; the Federal Insecticide,

Fungicide, and Rodenticide Act; and the Toxic Substances Control Act).

Usually, the EPA excludes Indian country from its delegations of

administrative authority to states. Instead, the EPA “retain[s] responsibility for

managing programs” in Indian country, “unless the State has an express grant of

jurisdiction from Congress sufficient to support delegation to the State

Government[.]” R. at 2 (EPA Policy for the Administration of Environmental

Programs on Indian Reservations (Nov. 8, 1984)).

But some federal environmental statutes enable Indian tribal nations to apply

for “treatment as a state” (TAS), and if approved by the EPA, a tribal nation can

implement its own regulatory program on its tribal lands. See, e.g., 40 C.F.R.

§ 130.16 (“Treatment of Indian tribes in a similar manner as states for purposes of the

Clean Water Act”). For example, in November 2004, the EPA granted the Pawnee

Nation of Oklahoma’s TAS application to administer regulatory programs on tribal

trust lands under the Clean Water Act. See Letter from Richard E. Greene, Reg’l

Adm’r to George Elton Howell, President, Pawnee Nation of Okla. (Nov. 4, 2004),

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https://www.epa.gov/sites/default/files/2015-07/documents/pawnee_nation_approval_and_maps.pdf.

In 2005, Congress passed a transportation funding bill that originated in the

House of Representatives Committee on Transportation and Infrastructure. The bill,

which became SAFETEA, primarily consisted of various spending authorizations for

highway programs and other transportation-related projects. But it also contained

other substantive provisions and amendments to the U.S. Code, many of which were

unrelated to transportation programs.

One such provision in SAFETEA’s miscellaneous section was § 10211, titled

“Environmental programs.” 1 Section 10211 requires EPA to permit Oklahoma to

extend its administration of a State regulatory program to Indian country upon

request if the State program conforms with federal law. The provision also imposed

an additional requirement on tribal nations for them to receive TAS. It reads:

(a) OKLAHOMA.—Notwithstanding any other provision of

law, if the Administrator of the Environmental Protection

Oklahoma tribal nations have come to call § 10211 the “Midnight Rider” because then-Oklahoma Senator James Inhofe reportedly inserted the provision into SAFETEA the evening before the Act’s passage and “[a]fter the Senate and House of Representatives agreed on the final version of the bill, . . . unbeknownst to tribal leaders or, indeed, really anyone.” Kimberly Chen, Towards Tribal Sovereignty: Environmental Regulation in Oklahoma After McGirt, 121 Colum. L. Rev. F. 95, 103 (2021); see also Keith S. Porter, Good Alliances Make Good Neighbors: The Case for Tribal-State-Federal Watershed Partnerships, 16 Cornell J. L. & Pub. Pol’y 495, 530 (2007) (“Senator Inhofe did not inform EPA, any tribes, or the governor of Oklahoma that he was going to include this provision in the transportation legislation; only the Oklahoma Independent Petroleum Association knew that the Senator was going to insert it.”). Pawnee Nation claims “[i]t is likely that Senator Inhofe added Section 10211 in response to the EPA’s 2004 approval of Pawnee Nation for” TAS. R. at 898 n.5.

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Agency (referred to in this section as the “Administrator”)

determines that a regulatory program submitted by the State

of Oklahoma for approval by the Administrator under a law

administered by the Administrator meets applicable

requirements of the law, and the Administrator approves

the State to administer the State program under the law with

respect to areas in the State that are not Indian country, on

request of the State, the Administrator shall approve the

State to administer the State program in the areas of the

State that are in Indian country, without any further

demonstration of authority by the State.

(b) TREATMENT AS STATE.—Notwithstanding any other

provision of law, the Administrator may treat an Indian tribe

in the State of Oklahoma as a State under a law administered

by the Administrator only if—

(1) the Indian tribe meets requirements under the law

to be treated as a State; and

(2) the Indian tribe and the agency of the State of

Oklahoma with federally delegated program

authority enter into a cooperative agreement, subject

to review and approval of the Administrator after

notice and opportunity for public hearing, under

which the Indian tribe and that State agency agree to

treatment of the Indian tribe as a State and to jointly

plan administer program requirements.

Pub. L. No. 109-59, 119 Stat. 1144, 1937 (2005) (emphasis added).

The only mention of § 10211 in legislative proceedings comes from thenSenator John McCain’s colloquy on the Senate floor shortly before Congress voted

on the bill:

Mr. McCAIN.

Mr. President, this is a remarkable piece of work. I want to

. . . take a few minutes to talk about some of the interesting

and egregious and remarkable aspects of this bill.

***

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[Section 10211(a)] [e]xpands the authority of the State of

Oklahoma in environmental matters to extend over ‘Indian

country’ within that State.

I don’t know what that costs. But what in the world is it

doing on a highway bill?

[Section 10211(b)] [r]equires for Treatment as a State under

EPA regulations, an Indian Tribe in Oklahoma, and the State

of Oklahoma, must enter a cooperative agreement to jointly

plan and administer program requirements.

What is that all about? No one has ever brought it to my

attention as chairman of the Indian Affairs Committee.

151 Cong. Rec. S9398-01 (2005). Congress subsequently passed SAFETEA and

President Bush signed it into law on August 10, 2005.

B. Procedural Background

From SAFETEA’s passage in 2005 to July 2020, Oklahoma never sought to

extend its State regulatory programs into Indian country under § 10211(a). But that

changed after July 9, 2020 when the Supreme Court issued its decision in McGirt v.

Oklahoma, 591 U.S. 894 (2020), which greatly expanded the scope of Indian country

in Oklahoma to encompass land that the state and federal governments had

understood to be exclusively state territory.

Several weeks after McGirt was decided, Oklahoma submitted a request to the

EPA under § 10211(a) to extend twenty-six State environmental regulatory programs

to Indian country. Oklahoma sought to “reestablish the status quo regarding the

scope of the State’s programs as they had been administered prior to the McGirt

decision,” R. at 1135, “but not to expand that scope, . . . expressly exclud[ing] from

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its request categories of land (e.g., Indian allotments and tribal trust lands) that had

been understood to constitute Indian country . . . prior to” McGirt, EPA Br. at 8.

The Muscogee (Creek) Nation requested tribal consultation with the EPA on

July 24, 2020 regarding Oklahoma’s request. Over the next few months, the EPA

met twice with the Creek Nation and discussed Oklahoma’s request with at least

thirteen other federally recognized Oklahoma tribal nations. Pawnee Nation also

requested a consultation, however, according to the EPA, “a suitable date and time

could not be agreed upon before the end of the consultation period.” R. at 152.

On September 29, 2020, the EPA released a Summary Report of Tribal

Consultation and Engagement and noted several “[k]ey themes that emerged from the

tribal meetings and consultation letters,” including that: (1) “the length of the

consultation period was too short,” id. at 153–54; (2) Oklahoma’s request “may be

contrary to the principles contained within the [EPA’s 1984 Indian Policy]” in which

the EPA “recognize[s] tribal governments as the primary parties for setting standards,

making environmental policy decisions and managing programs for reservations,” id.

at 154–55; and (3) the request conflicted with the federal government’s obligation to

protect tribal sovereignty under its trust obligation and various treaties, id. at 155–57.

“Many tribes” also “expressed concerns and asked questions about the implications

and validity of section 10211,” including, its “legal status” and how it was

“connected to a transportation bill.” Id. at 162.

The EPA responded that it “found no evidence, nor has any been provided by

tribes, that indicates section 10211 has sunset and is therefore no longer valid.” Id. at

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163. It also noted that although § 10211(b)—the cooperative-agreement provision—

was “of concern to the tribal nations,” it was “not implicated by [Oklahoma’s]

request and [was] therefore outside of the scope of this approval.” Id. The EPA did,

however, state that § 10211(b)’s requirement “for a cooperative agreement remains a

prerequisite for tribal assumption of regulatory programs,” and that “[t]o date, EPA

has approved only one cooperative agreement under this provision: between the

Citizen Potawatomi Nation and the State.” Id.

On October 1, 2020, the EPA issued a decision granting Oklahoma’s request.

It determined that “Oklahoma’s July 2020 request seeks approval under SAFETEA to

administer environmental regulatory programs submitted by the State that EPA [(1)]

has determined meet applicable requirements of federal environmental law and [(2)]

has approved outside of Indian country.” Id. at 209. “Because these basic statutory

criteria are met” and because it had “no discretion to weigh additional factors in

rendering its decision,” the EPA concluded it was “required to approve the State’s

request to administer these previously approved regulatory programs . . . .” Id. at

209–10.

But after sixteen Oklahoma tribal nations (including Pawnee Nation)

petitioned the EPA in March 2021 to revisit its October 2020 decision, the EPA—

now operating under a different presidential administration—initiated a second tribal

consultation process. On December 22, 2021, after the EPA completed its second

consultation period, it issued a notice of proposed agency action regarding the

October 2020 decision. The EPA found that its “expedited tribal consultation

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meetings” before the October 2020 decision “(three weeks for 38 tribes in Oklahoma)

was inadequate to allow meaningful engagement regarding impacts of the State’s

request on tribes.” R. at 536–37. It thus “propos[ed] to withdraw and reconsider the

October 2020 Decision [as] an appropriate first step to address the issues” raised by

the tribal nations. Id. at 540. The EPA “invit[ed] comments to inform [its]

reconsideration and decision making regarding the State’s request under SAFETEA,”

but left Oklahoma’s program authority under the October 2020 decision “in place and

unaffected” pending final agency action on the proposed withdrawal. Id. at 533–34.

After more than three years of additional consultation with the tribal nations

and receiving comments from other stakeholders, the EPA issued a new decision on

January 13, 2025. The January 2025 decision withdrew the October 2020 decision

but still approved Oklahoma’s § 10211(a) request. The EPA, however, also imposed

a condition on its approval. It added a “State-Tribal Engagement Condition” that

“required” Oklahoma to follow enumerated “Tribal Engagement Protocols.” R. at

928, 935. The Protocols outlined “a minimum set of procedures” applicable to “all

final agency actions by the State under the program(s) covered by the SAFETEA

decision,” including: “send[ing] a written notice to any Covered Tribe(s) . . . whose

Indian country will be subject to, is the site of, or is within 50 miles of the site of the

final agency action”; “inviting the affected Tribes to confer with the State regarding

the action”; “provid[ing] sufficient documentary information for the Tribe(s) to make

an informed decision about the action”; engaging in “[m]eaningful conferral” which

“require[s] that efforts are aimed at achieving consensus between the State and the

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affected Tribes”; “provid[ing] a written description of the tribal engagement process

to the affected Tribes”; and “provid[ing] a yearly report to the EPA” and “all

Covered Tribes” detailing all tribal engagements. R. at 939–45. The EPA explained

that the Engagement Condition “establish[ed] a similar consultative relationship

between the State and Tribes as exists between EPA and the Tribes and is narrowly

tailored to provide procedural opportunities for Tribal input without disturbing the

State’s ultimate regulatory decision-making authority.” Id. at 929.

But in April 2025 the EPA—after yet another change in presidential

administrations—notified the Oklahoma tribal nations that it had erred in its January

2025 decision by interpreting § 10211(a) to authorize it to impose conditions on its

approval, finding such authorization exceeded the statutory grant of power. The EPA

met again with the tribal nations over the course of a month and on May 12, 2025, it

issued another decision approving Oklahoma’s § 10211(a) request, but this time

without the State-Tribal Engagement Condition.

Pawnee Nation then petitioned this court to review the EPA’s May 2025

decision.

II. Discussion

A. Standard of Review

When reviewing an agency’s final action under the APA, we must “hold

unlawful and set aside [the] action” if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). An

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agency action is arbitrary, capricious, and not in accordance with the law when the

agency acts outside its statutory authority under an erroneous view of the law. See

Am. Wild Horse Campaign v. Raby, 144 F.4th 1178, 1188–91 (10th Cir. 2025). We

“must exercise [our] independent judgment in deciding whether an agency has acted

within its statutory authority”; we do “not defer to an agency interpretation of the law

simply because a statute is ambiguous.” Loper Bright Enters. v. Raimondo, 603 U.S.

369, 412–413 (2024).

Pawnee Nation argues that the EPA’s May 2025 decision is contrary to law

under § 706 of the APA for three reasons. It contends: (1) Section 10211(a) expired

in 2009 along with other parts of SAFETEA, so the EPA could not have acted under

it; (2) the EPA rested on an erroneous interpretation of § 10211(a) when it concluded

it had no authority to impose conditions on its approval of Oklahoma’s request; and

(3) the EPA failed to make a contemporaneous determination that Oklahoma’s

regulatory programs complied with federal law, as required by § 10211(a).

Before addressing the APA claims, we first address our subject matter

jurisdiction.

B. Subject Matter Jurisdiction

Although both parties agree this court has proper jurisdiction to consider

Pawnee Nation’s petition, we must independently ensure our subject matter

jurisdiction over this matter. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231

(1990) (“Every federal appellate court has a special obligation to satisfy itself of its

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own jurisdiction, even though the parties are prepared to concede it.” (citation

modified)).

Section 10211 does not outline a judicial review procedure, nor does

SAFETEA contain a general provision that governs review for the entire statute. 2

But under most of the substantive federal statutes that govern the regulatory

programs at issue, we have exclusive jurisdiction to consider petitions for review of a

final EPA action concerning state implementation plans. See, e.g., 33 U.S.C.

§ 1369(b)(1) (“Review of the Administrator’s action . . . in making any determination

as to a State permit program submitted under [the Clean Water Act] . . . may be had

by any interested person in the Circuit Court of Appeals of the United States for the

Federal judicial district in which such person resides or transacts business which is

directly affected by such action upon application by such person.”); 42 U.S.C.

§ 7607(b)(1) (similar for the Clean Air Act); id. § 300j-7(a)(2) (similar for the Safe

Drinking Water Act); id. § 6976(b) (similar for the Resource Conservation and

Recovery Act). Pawnee Nation resides within this circuit and challenges Oklahoma’s

request to extend its State regulatory programs under those statutes to Indian country.

We thus have exclusive jurisdiction to hear Pawnee Nation’s petition over those

programs.

Section 7123 of SAFETEA contains a judicial review provision, but it relates to Chapter 51 of Title 49 in the United States Code which deals with the transportation of hazardous materials. See Pub. L. No. 109-59, 119 Stat. 1144, 1907– 08 (2005) (codified as 49 U.S.C. § 5127(a)). Pawnee Nation’s petition does not challenge any Department of Transportation action under Chapter 51 so that provision has no application here.

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And although other statutes that govern the remaining regulatory programs in

Oklahoma’s request do not require exclusive review by this court, Pawnee Nation’s

challenge to the EPA’s decision on those programs is “inescapably intertwined” with

the programs we have exclusive jurisdiction over because the EPA’s decision was

made under the same provision, § 10211(a). See Soul Quest Church of Mother Earth,

Inc. v. U.S. Att’y Gen., 92 F.4th 953, 971 (11th Cir. 2023); Ctr. for Biological

Diversity v. EPA, 861 F.3d 174, 187–88 (D.C. Cir. 2017).

As a result, we conclude we have exclusive subject matter jurisdiction to

consider Pawnee Nation’s petition for review.

C. APA Challenges

1. Section 10211’s Application

Pawnee Nation first argues that § 10211 expired on “September 30, 2009”

because SAFETEA “was a time-limited spending act, most provisions of which

applied only for fiscal years 2005 to 2009.” Ptr’s Br. at 11, 23 (internal quotation

marks omitted). It claims that a presumption-against-permanence substantive canon

of interpretation applies because § 10211 was “a rider in a time-limited spending act

[that] change[d] substantive law,” which creates a “‘very strong presumption’” that

the provision was only active “for the fiscal years that [SAFETEA was] in effect.”

Id. at 23 (quoting Bldg. & Constr. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269,

273 (D.C. Cir. 1992)). Pawnee Nation further contends § 10211 does not overcome

this presumption because it does not contain “a clear statement of futurity,” nor does

it otherwise make clear that Congress intended the provision to be permanent. Id. at

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24–25 (quotation marks omitted). As a result, under Pawnee Nation’s interpretation,

the EPA could not have lawfully approved Oklahoma’s request under an expired

provision.

The EPA, however, argues the presumption against permanence does not apply

because the canon only applies to appropriations bills that cover a single fiscal year,

and SAFETEA was not one. “Although SAFETEA contains certain appropriations

provisions, the statute is a broader authorization containing numerous substantive

provisions with varying expiration dates specific to those particular provisions.” R.

at 524. Because the presumption does not apply, and because § 10211 “does not

contain any sunset or express expiration,” the EPA contends the provision is not

expired. EPA Br. at 15.

We agree that the presumption-against-permanence canon does not apply

here—but for a reason different than that advanced by the EPA. Instead, we

conclude that the canon is an ambiguity-resolving interpretive aid. And because we

read § 10211(a) to be unambiguously unexpired, the canon does not come into play,

and we need not decide whether it applies to a statute like SAFETEA.

a. The Presumption Against Permanence

Although we have not yet addressed the so-called presumption-againstpermanence substantive canon, other circuits that have applied the canon trace its

origins to the Supreme Court’s decision in Minis v. United States, 40 U.S. (15 Pet.)

423 (1841) (Story, J.). See, e.g., Atl. Fish Spotters Ass’n v. Evans, 321 F.3d 220, 224

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(1st Cir. 2003); Tin Cup, LLC v. U.S. Army Corps of Eng’rs, 904 F.3d 1068, 1073

(9th Cir. 2018). 3

In Minis, the government sought to recover $13,589.05 of commissions it paid

to Doctor Minis, a surgeon in the army. Although the government had paid Minis the

commissions from appropriations made for the years 1836 and 1837, the government

argued that a provision from an appropriation law for the year 1835 was “permanent

in its operation, and applicable to all future appropriations[.]” Minis, 40 U.S. at 445.

The 1835 provision prohibited additional pay to army officers “for any service or

duty,” which the government argued barred Minis from receiving the commissions.

Id. at 442. The Supreme Court concluded that because the provision was attached to

“a mere appropriation law of limited nature,” it was “limited exclusively to

Our predecessor circuit declined to apply the presumption against

permanence in United States v. Perry, 50 F. 743 (8th Cir. 1892). And although the “decisions of our predecessor circuit are [not] controlling in this court,” they remain “persuasive” authority when relevant. Iron Bar Holdings v. Cape, 131 F.4th 1153, 1171 (10th Cir. 2025) (quotation marks omitted).

We also note that while we have not yet addressed the canon, we have concluded that under 31 U.S.C. § 1301, Congress must “expressly state[]” that a specific provision in an annual appropriation law is “permanent” for us to conclude the provision made a lasting change to substantive law. Smithsfork Grazing Ass’n v. Salazar, 564 F.3d 1210, 1216 (10th Cir. 2009). Section 1301 mandates that “[a]n appropriation in a regular, annual appropriation law may be construed to be permanent or available continuously only if the appropriation . . . expressly provides that it is available after the fiscal year covered by the law in which it appears.” 31 U.S.C. § 1301(c). Pawnee Nation, however, does not argue § 1301 affects our interpretation of § 10211—most likely because SAFETEA was not an annual appropriation law. We therefore do not consider § 1301 in our analysis.

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appropriations made at the session of 1835” and therefore did not bar Minis’s

commissions in 1836 and 1837. Id. at 445.

It would be somewhat unusual, to find engrafted upon an act

making special and temporary appropriations, any provision

which was to have a general and permanent application to

all future appropriations. Nor ought such an intention on

the part of the legislature to be presumed, unless it is

expressed in the most clear and positive terms, and where

the language admits of no other reasonable interpretation.

Id.

The Supreme Court, however, has never since explicitly invoked a

presumption-against-permanence canon. The Court has cited Minis, but it only did so

when discussing a different substantive canon: the presumption against implied

repeals. See, e.g., United States v. Vulte, 233 U.S. 509, 515 (1914); Maine Cmty.

Health Options v. United States, 590 U.S. 296, 316 (2020). And while application of

the presumption against implied repeals in the appropriations context might relate to

Minis’s reasoning, that canon is nevertheless distinct from Pawnee Nation’s proffered

presumption against permanence.

Yet multiple circuit courts have relied on the Court’s reasoning in Minis and

invoked a presumption-against-permanence canon. For example, in Tin Cup, LLC v.

U.S. Army Corps of Engineers, the Ninth Circuit stated:

There is [a] very strong presumption that if an

appropriations act changes substantive law, it does so only

for the fiscal year for which the bill was passed. . . . Absent

a clear statement of futurity, a provision in an appropriations

act is only in force for the fiscal year of the appropriation.

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904 F.3d at 1073 (internal citations and quotation marks omitted). See Bldg. &

Constr. Trades Dep’t, 961 F.2d at 273–74 (“[A] provision contained in an

appropriations bill operates only in the applicable fiscal year, unless its language

clearly indicates that it is intended to be permanent.”); Atl. Fish Spotters Ass’n, 321

F.3d at 224–25 (“A provision in an annual appropriations bill presumptively applies

only during the fiscal year to which the bill pertains.”).

But before we can address whether the presumption applies to a statute like

SAFETEA, we must first determine when it would apply in our interpretive process.

Pawnee Nation argues that the presumption against permanence applies to § 10211 at

the start as a clear statement rule. Under that formulation, the presumption (if it

applies) would “put a thumb on the scale from the very outset of our interpretative

process—i.e., that it should factor not only into our resolution of any ambiguity we

might ultimately find in [§ 10211(a)], but also into our assessment of whether the

statute is ambiguous in the first place.” Yale New Haven Hosp. v. Becerra, 56 F.4th

9, 24 (2d Cir. 2022). Cf. id. (considering whether the presumption favoring judicial

review of agency action is an ambiguity-resolving canon or a clear statement rule).

To be sure, some substantive canons are triggered at the beginning of a court’s

interpretative process. These clear statement (or plain statement) rules “impl[y] a

special substantive limit on the application of an otherwise unambiguous mandate.”

Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 141 (2005) (plurality opinion).

“[P]lain statement rules do not turn on a finding of clarity versus ambiguity; rather,

they turn on whether the statute includes an express statement overcoming the default

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rule against a certain reading.” Brett M. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118, 2155 (2016). As a result, “presumptions framed as plain

statement rules require something more: they demand language directly stating

Congress’s intent to wade into the area encompassed by the plain statement rule.” Id.

“Typically, we find clear-statement rules appropriate when a statute implicates

historically or constitutionally grounded norms that we would not expect Congress to

unsettle lightly.” Jones v. Hendrix, 599 U.S. 465, 492 (2023) (emphasis added).

Presumptions that apply without an ambiguity trigger are thus normally

“constitutionally inspired ‘clear statement rules,’ which insist that Congress speak

with unusual clarity when it wishes to effect a result that, although constitutional,

would disturb a constitutionally inspired value.” John F. Manning, Clear Statement

Rules and the Constitution, 110 Colum. L. Rev. 399, 407 (2010) (emphasis added);

see also id. (listing “the federalism canon” and “the retroactivity canon” as examples

of constitutionally inspired clear statement rules); Philip P. Frickey, Marshalling

Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal

Indian Law, 107 Harv. L. Rev. 381, 415 (1993) (“Clear-statement rules, because they

can radically bend documents away from their apparent meaning, are used

sparingly. Their primary justification today is to guard against the erosion of

constitutional structures that are difficult to protect by more direct forms of judicial

review.”).

On the other hand, presumptions that are not constitutionally inspired, but seek

to further some other value or policy, “implicitly rest on an initial finding of

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ambiguity.” Kavanaugh, supra, at 2155; see also id. at 2154–55 (listing the

presumption against statutes applying extraterritorially and the presumption against

implied repeals as examples of ambiguity-dependent presumptions). And “while the

Court has in the past recognized certain clear statement rules that implement social

rather than constitutional values, such authority seems not to have taken root on a

generalized basis.” Manning, supra, at 426.

The presumption-against-permanence substantive canon falls into the latter

category. It does not further any constitutional value. Rather, it appears the

presumption is grounded in the House’s and Senate’s rules that prohibit the inclusion

of general legislation in appropriations bills. See Vulte, 233 U.S. at 515 (“[Minis’s

reasoning] follows naturally from the nature of appropriation bills, and the

presumption hence arising is fortified by the rules of the Senate and House of

Representatives.”); United States v. Will, 449 U.S. 200, 222 (1980) (“[T]he rules of

both Houses limit the ability to change substantive law through appropriations

measures.” (citing Senate Standing Rule XVI(4); House of Representatives Rule

XXI(2))). Enforcing Congress’s policy on appropriations bills does not further a

constitutional value because the Supreme Court has explicitly stated that despite

those congressional rules, a provision attached to an appropriation bill can change

substantive law. See id. (“[W]hen Congress desires to suspend or repeal a statute in

force, ‘[t]here can be no doubt that . . . it could accomplish its purpose by an

amendment to an appropriation bill, or otherwise.’” (second alteration in original)

(quoting United States v. Dickerson, 310 U.S. 554, 555 (1940))); see also Amy

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Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 123–

24 (2010) (“Substantive canons are in no tension with faithful agency insofar as they

are used as tie breakers between equally plausible interpretations of a statute. . . .

Substantive canons are in significant tension with textualism, however, insofar as

their application can require a judge to adopt something other than the most textually

plausible meaning of a statute.”). Clear statement rules “impose a clarity tax on

Congress by insisting that Congress legislate exceptionally clearly when it wishes to

achieve a statutory outcome that threatens to intrude upon some judicially identified

constitutional value . . . .” Manning, supra, at 399.

We decline to categorize the presumption against permanence as a diceloading clear statement rule and instead conclude that it only comes into play when a

statute is ambiguous. 4 See Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 143–47

(2d Cir. 2002) (analyzing the presumptions against permanence and implied repeals

only after finding the statutory text was ambiguous); Atl. Fish Spotters Ass’n, 321

F.3d at 224 (“When the words of a statute neither create ambiguity nor lead to an

entirely unreasonable interpretation, an inquiring court need not consult other aids to

statutory construction.”). Applying the presumption as a clear statement rule would

Other circuits have found that similar presumption-framed substantive canons depend on a finding of ambiguity. See, e.g., Vitrol, Inc. v. United States, 30 F.4th 248, 253 (5th Cir. 2022) (declining to apply the “narrow construction of tax breaks” substantive canon because the statute was unambiguous); Yale New Haven Hosp. v. Becerra, 56 F.4th 9, 24–26 (2d Cir. 2022) (declining to apply the “presumption favoring judicial review of agency action” “as a tiebreaker” because it found the statute unambiguously precluded judicial review).

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contravene our judicial role of “interpret[ing] the language of the statute enacted by

Congress.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461 (2002); see also Vitrol,

Inc. v. United States, 30 F.4th 248, 253 (5th Cir. 2022) (“[O]nly if we determine that

a statute is ambiguous—that is, after plain meaning and application of the

interpretive canons are found lacking—do the so-called substantive canons come into

play.” (citation modified)). “When the words of a statute are unambiguous, then, this

first canon is also the last: ‘judicial inquiry is complete.’” Barnhart, 534 U.S. at 462

(quotation marks omitted).

Our predecessor circuit concluded the same in United States v. Perry, 50 F.

743 (8th Cir. 1892), when it rejected application of the presumption after finding the

statute’s text was clear. In Perry, the provision at issue was attached to an annual

appropriations bill. And because of that the appellee claimed it was temporary and

applied only to the appropriations made in the act in which it was found. But the

Eighth Circuit declined to apply the presumption against permanence and concluded

the provision made a permanent change in the law.

[I]t is clear that congress intended by this proviso to change,

and by apt and plain words has changed and diminished, the

compensation fixed by [an earlier authorization

statute]. That this law is found in an act making general

appropriations will not authorize the courts to disregard or

explain it away. For many years it has been a common

practice of the congress to enact general provisions of law

in the acts making appropriations, until there is now little, if

any, presumption that such provisions are not intended to be

permanent and general. . . . The proviso is plain and

unambiguous.

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Id. at 748. The Supreme Court referred to Perry in United States v. Dickerson, 310

U.S. 554 (1940), when it determined that a different provision attached to another

annual appropriations bill was not limited to only funds appropriated in that bill but

also suspended a prior congressional authorization. See 310 U.S. at 561–62.

At bottom, we conclude the presumption against permanence, “as is true of

any guide to statutory construction, only serves as an aid for resolving an ambiguity;

it is not to be used to beget one.” Callanan v. United States, 364 U.S. 587, 596

(1961) (Frankfurter, J.). The canon “comes into operation at the end of the process of

construing what Congress has expressed, not at the beginning as an overriding

consideration . . . .” Id. If the plain meaning of a statute is unambiguous, then we

have no need to resort to the presumption against permanence. See Perry, 50 F. at

748.

We must therefore first discern § 10211(a)’s plain meaning on the issue before

we can turn to the canon’s potential application.

b. The Plain Meaning of § 10211(a)

We start by employing the “traditional tools of statutory construction” to find

the “best reading” of § 10211(a). Loper Bright, 603 U.S. at 400–01; see also id. at

400 (“In the business of statutory interpretation, if it is not the best [reading of the

statute], it is not permissible.”). Thus, our “first step in interpreting a statute is to

determine whether the language at issue has a plain and unambiguous meaning with

regard to the particular dispute in the case.” Robinson v. Shell Oil, 519 U.S. 337, 340

(1997). “The plainness or ambiguity of statutory language is determined by reference

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to the language itself, the specific context in which that language is used, and the

broader context of the statute as a whole.” Id. at 341. We need only resort to the

presumption against permanence “if, after seizing everything from which aid can be

derived,” we are left with a “grievous ambiguity or uncertainty” such that we “can

make no more than a guess as to what Congress intended.” Ocasio v. United States,

578 U.S. 282, 295 n.8 (2016) (quotation marks omitted).

We start with the text. Section 10211 contains no sunset provision, nor does it

say anything about the duration of its application. The text therefore indicates it is

not expired.

Pawnee Nation, however, argues the provision likewise does not contain

“words of futurity” to demonstrate its permanence. Ptr’s Br. at 28. It thus urges us

to find the text is at least ambiguous as to whether it is expired because of its

“silence” on the issue. Id. at 25.

But the provision is not ambiguously silent on the issue just because it does

not contain words of futurity. The absence of such words is typical; statutes seldom

say anything about their duration, and we usually only find a duly enacted provision

of Congress is expired when it says so. See Perry, 50 F. at 748. And the presence of

words of futurity is but one factor for a court to consider when determining whether a

statute overcomes the presumption against permanence, see, e.g., Tin Cup, 904 F.3d

at 1073, which we have already concluded is not yet in play. Finding the statute

ambiguous because it does not contain such words would smuggle the ambiguity24

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dependent presumption into our initial textual analysis to “beget” an ambiguity—not

resolve one. Callanan, 364 U.S. at 596.

Next, we evaluate the context of § 10211 within the rest of the statute.

Contextual clues from other parts of SAFETEA, such as its preamble, also indicate

that the provision has not expired. See Antonin Scalia & Bryan Garner, Reading Law

217 (2012) (“A preamble, purpose clause, or recital is a permissible indicator of

meaning.”). For instance, time-limited acts typically say in their preamble that the

entire statute applies only for a specific timeframe. See, e.g., Atl. Fish Spotters

Ass’n, 321 F.3d at 228 (Appropriations bill at issue stated, “No part of any

appropriation contained in this Act shall remain available for obligation beyond the

current fiscal year unless expressly so provided herein.” (emphasis added)

(quoting Pub. L. No. 106–553, app. B § 602)); Pub. L. No. 102-377, 106 Stat. 1315

(1992) (Preamble of the “Energy and Water Development Appropriations Act of

1993” at issue in Tin Cup, LLC v. U.S. Army Corps of Eng’rs, 904 F.3d 1068 (9th

Cir. 2018), stated its purpose was to “mak[e] appropriations for energy and water

development for the fiscal year ending September 30, 1993[.]” (emphasis added));

Pub. L. No. 102-27, 105 Stat. 130 (1991) (Preamble of the “emergency supplemental

appropriations” bill at issue in Bldg. & Constr. Trades Dep’t, AFL-CIO v. Martin,

961 F.2d 269 (D.C. Cir. 1992), stated its purpose was to “provide dire emergency

supplemental appropriations for the fiscal year ending September 30, 1991[.]”

(emphasis added)).

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SAFETEA, however, contains no such overarching preamble or provision that

states the entire statute is only in effect for certain fiscal years. See Pub. L. No. 109-59, 119 Stat. 1144 (2005) (Preamble for SAFETEA states it is “[a]n Act To authorize

funds for Federal-aid highways, highway safety programs, and transit programs, and

for other purposes.”). Congress also included express sunset language in other

SAFETEA provisions but did not include such language in § 10211. See Keene

Corp. v. United States, 508 U.S. 200, 208 (1993) (“Where Congress includes

particular language in one section of a statute but omits it in another, it is generally

presumed that Congress acts intentionally and purposely in the disparate inclusion or

exclusion.” (citation modified)).

And other provisions of SAFETEA that likewise did not contain sunsets, and

that also were not codified in the U.S. Code, 5 appear to remain active. For example,

§ 5305(h) of SAFETEA was never codified in the U.S. Code, however, in Public Law

117-286 (Dec. 27, 2022), Congress made technical amendments to § 5305(h). See

Pub. L. No. 117-286, 136 Stat. 4196, 4325 (2022) (amending “Section 5305(h)(5) of

SAFETEA-LU”); see also id. (amending “Section 5307(a)(4)(B) of SAFETEA-LU”

which was also not codified in the U.S. Code).

As a result, we conclude § 10211’s plain meaning unambiguously

demonstrates that it is not expired.

Pawnee Nation claims that § 10211’s absence from the U.S. Code supports its argument that the provision is expired. We, however, decline to look to postenactment codification history to find ambiguity.

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c. The EPA’s Interpretation

Although we do not defer to an agency’s interpretation of the statute it

administers, we still afford “respect” to and “seek aid from [its] interpretations” to

determine “the statute’s meaning” when such interpretations were “issued

contemporaneously with the statute at issue, and [have] remained consistent over

time[.]” Loper Bright, 603 U.S. at 394, 399 (citing Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944) (R. Jackson, J.)). “[T]he agency’s ‘body of experience and

informed judgment,’ . . . has always been one of the factors which may give an

Executive Branch interpretation particular ‘power to persuade, if lacking power to

control.’” Id. at 394 (quoting Skidmore, 323 U.S. at 140).

We afford Skidmore-respect to the EPA’s longstanding and consistent

interpretation of § 10211. Even though the EPA does not appear to have interpreted

§ 10211(a) before Oklahoma submitted its request in July 2020, 6 it has since

consistently maintained the provision is not expired. For example, the EPA stated in

September 2020:

Section 10211 in particular is a substantive provision of law

with no explicit expiration date that does not condition or

limit appropriations and that is not otherwise topically

related to the remainder of the statute. Among other things,

the provision would not reasonably be viewed as connected

to appropriations provisions elsewhere in the statute that

The EPA did argue that § 10211(a) was an active source of law during litigation of the D.C. Circuit case Oklahoma Department of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014) (Okla. DEQ). Also, neither Oklahoma nor the D.C. Circuit appear to have considered the possibility that the provision had expired. See Okla. DEQ, 740 F.3d at 189–90.

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may be subject to temporal limitations. . . . EPA does not

believe that the provision would reasonably be viewed as

having expired.

R. at 524.

And just as relevant but perhaps more convincing, the agency has long

interpreted § 10211(a)’s companion provision, § 10211(b) (requiring a cooperation

agreement with Oklahoma for a tribal nation to obtain TAS status), to remain active

legislation. In fact, everyone appears to have treated that provision as still in force

after September 30, 2009: the EPA, other tribal nations, and Oklahoma have all

assumed § 10211(b) remains in effect. 7

For example, on December 22, 2009, months past the end of the 2009 fiscal

year and sunset of other SAFETEA provisions, the Potawatomi Nation of Oklahoma

signed a cooperation agreement with Oklahoma pursuant to § 10211(b). The EPA

approved of the cooperation agreement in January 2011, and in January 2015, the

Potawatomi Nation applied for TAS for various Clean Water Act programs under

§ 10211(b). See Citizen Potawatomi Nation, Application for Treatment in a Similar

Various scholars have also treated § 10211(b) as unexpired. See, e.g., Landen Logan, The Law of Unintended Consequences: The Effects of McGirt and Castro-Huerta on Oklahoma’s Energy Landscape, 48 Okla. City U. L. Rev. 49, 71–72 (2023) (“Oklahoma tribes are required to enter into a cooperative agreement with the State and its relevant agency. . . . Tribes in other states are not required to enter into these cooperative agreements. . . . This was settled law for fifteen years.”); Elizabeth Kronk Warner, Returning to the Tribal Environmental “Laboratory”: An Examination of Environmental Enforcement Techniques in Indian Country, 6 Mich. J. Env’t & Admin. L. 341, 376, 386 (2017) (quoting one Oklahoma tribal nation as stating that “currently Tribes in Oklahoma cannot regulate water pollution standards due to the infamous ‘Midnight Rider,’ . . . the State of Oklahoma must agree to any proposed provision, enacted under federal law (TAS status)”).

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Manner as a State (July 29, 2015), https://www.epa.gov/sites/default/files/2016-11/documents/tas_application.pdf. But Oklahoma ultimately chose not to renew the

cooperation agreement, which led to the EPA denying the Potawatomi Nation’s TAS

application under § 10211(b). See R. at 163.

The EPA also published a final rule under the Clean Water Act in 2016

regarding TAS for tribal nations and explained in the Federal Register Notice that

§ 10211(b) remains active and “applies apart from, and in addition to, existing TAS

eligibility criteria” such that the EPA’s new rule “has no effect on the separate

requirement of section 10211(b) of SAFETEA.” Treatment of Indian Tribes in a

Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act, 81

Fed. Reg. 65901, 65907 (Sep. 26, 2016). As a result, the EPA maintained that “the

SAFETEA requirement must be satisfied for a tribe in Oklahoma to obtain TAS to

regulate under an EPA statute[.]” Id. at 65908.

In sum, the EPA has long interpreted § 10211 to remain active and has

remained consistent in that view. Its views reinforce our conclusion that the

provision remains in force. And because we conclude § 10211, taken in context,

unambiguously dictates that it has not expired, we need not determine whether the

presumption-against-permanence ambiguity-dependent canon applies to SAFETEA.

d. The Presumption Against Implied Repeals

Pawnee Nation also claims that another substantive canon—the presumption

against implied repeals—tips the interpretive scales in its favor and compels us to

find § 10211 is expired. It argues the May 2025 decision “treated [§ 10211(a)] as an

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implied partial repeal of multiple federal statutes, which is disfavored.” Ptr’s Br. at

20.

It is true that “repeals by implication are not favored and are a rarity.” Maine

Cmty. Health Options, 590 U.S. at 315 (citation modified). Thus, when we are

“[p]resented with two statutes,” we “regard each as effective—unless Congress’

intention to repeal is clear and manifest, or the two laws are irreconcilable.” Id.

(citation modified). And this “aversion to implied repeals is especially strong in the

appropriations context.” Id. (internal quotation marks omitted).

The presumption against implied repeals, however, only applies when the

statute is ambiguous. See Kavanaugh, supra, at 2154–55 (listing the “presum[ption]

that statutes do not effectuate implied repeals of other statutes” as a substantive

canon that “implicitly rest[s] on an initial finding of ambiguity”); J.E.M. Ag Supply,

Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 142 (2001) (“The rarity with which

the Court has discovered implied repeals is due to the relatively stringent standard for

such findings, namely, that there be an irreconcilable conflict between the two federal

statutes at issue.” (citation modified)); Scalia & Garner, supra, at 327–33 (“Doubts

about the law will arise whenever a statute that directly contradicts an earlier

enactment is not held to repeal it.” (emphasis added)). Only when the statute is

ambiguous should courts “interpret the statute . . . not to effectuate an implied

repeal[.]” Kavanaugh, supra, at 2155.

But because we concluded § 10211(a) did not expire, the presumption against

implied repeals does not apply and does not alter our conclusion.

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e. The Indian Law Canon

Finally, Pawnee Nation contends we should apply the Indian law substantive

canon of construction. 8 That canon counsels that “[a]lthough Congress has plenary

authority over tribes, courts will not lightly assume that Congress in fact intends to

undermine Indian self-government.” Michigan v. Bay Mills Indian Cmty., 572 U.S.

782, 790 (2014). Accordingly, “statutes are to be construed liberally in favor of the

Indians, with ambiguous provisions interpreted to their benefit.” Montana v.

Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).

But like the other substantive canons we discussed, the Indian law canon has

no application when the statutory text is unambiguous. See Cohen’s Handbook of

Federal Indian Law § 3.01, at 162 (Nell Jessup Newton & Kevin K. Washburn et al.

eds., 2024 ed.) (“Cohen’s Handbook”) (“As interpretive tools, the canons come into

play only when ambiguity exists.”); South Carolina v. Catawba Indian Tribe, Inc.,

476 U.S. 498, 506 (1986) (“The canon of construction regarding the resolution of

ambiguities in favor of Indians . . . does not permit reliance on ambiguities that do

not exist; nor does it permit disregard of the clearly expressed intent of Congress.”);

Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic

Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1141 (1990) (“The [Indian law]

The dissent objects to our framing of “a singular” Indian canon because there are many “Indian canons” of construction that might apply. Dissenting Op. at 1–2. We acknowledge that there appears to be several variations of this canon, but because scholars disagree on their number and scope (and for simplicity’s sake) we refer to “an Indian canon that includes several rules.” See Evan D. Bernick, Canon Against Conquest, 2025 U. Ill. L. Rev. 1169, 1174–75 (2025).

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canons apply . . . only where congressional intent is unclear; clear congressional

intent controls, no matter how harsh the result.”).

We recognize that an en banc panel of this circuit in NLRB v. Pueblo of San

Juan said that “[s]ilence is not sufficient to establish congressional intent to strip

Indian tribes of their retained inherent authority to govern their own territory.” 276

F.3d 1186, 1196 (10th Cir. 2002) (en banc). In that case, this court considered

whether the National Labor Relations Act (NLRA) preempted the ability of the San

Juan Pueblo tribal council to enact right-to-work laws. We concluded that because

the NLRA made no “mention of Indian tribes,” its “silence” did “not work a

divestiture of tribal power.” Id. Section 10211(a), however, is expressly about

Indian country and makes clear that Oklahoma’s regulatory programs can apply

there. Congress was thus not silent about the provision’s application to the tribal

nations, unlike our conclusion that it was silent on that issue in the NLRA. Cf.

EEOC v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir. 1989) (applying the Indian

law canon when interpreting the Age Discrimination and Employment Act (ADEA)

because it found the ADEA ambiguous since the Act neither expressly included nor

excluded tribal nations from its coverage).

The dissent, however, argues that we have erred “by conflating and combining

the Indian canons into a single, ambiguity-resolving tool.” Dissenting Op. at 6. As

the dissent sees it, there are many versions of the Indian law canon, 9 including a

The dissent concludes that the so-called “liberal construction” variant of the

canon has no application here because § 10211(a) was not enacted “for the benefit”

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“clear statement rule” rooted in the federal government’s “trust responsibility” that

broadly “protects a tribe’s sovereign interests . . . from all but the most ‘unequivocal

expression of contrary legislative intent’ by Congress.” Id. at 6–7 (quoting Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978)). The dissent maintains that this

clear statement rule requires that when an interpretation of a statute might undermine

a tribal nation’s sovereign interests, the statute’s text must “affirmatively, clearly,

unequivocally, and precisely support[]” such an interpretation. Id. at 13.

We disagree with that understanding of the canon; none of the relevant or

established variations of the canon apply to § 10211(a) absent an ambiguity trigger.

See Cohen’s Handbook at 156 (“When a source of law is unambiguous, the canons of

construction will not come into play.”); Restatement of the L. of Am. Indians § 8

cmts. a, b (Am. L. Inst. 2022) (“The canon of construction of Indian statutes . . . does

not apply to statutes that are not ambiguous.”); United States v. Hebert, No. 24-7030,

slip op. at 44–45 (10th Cir. Oct. 14, 2026) (en banc) (rejecting appellant’s argument

to apply the canon to protect the “right of tribal self-government” because the statute

was not “ambiguous in a way that would invoke the Indian canon” (quotation marks

of the tribal nations. See Dissenting Op. at 5. We agree with the dissent’s conclusion but disagree with its characterization that there is a separate, standalone liberalconstruction version of the canon. The liberal-construction requirement is simply part of resolving an ambiguity: we “liberally construe” Indian-affairs statutes by resolving ambiguities in favor of the tribal nations. See Cnty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (“Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (citation modified)).

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omitted)). We recognize that scholars have outlined several supposed versions of the

canon, including one that resembles the dissent’s sovereignty rule. For instance, one

Indian law scholar wrote that “[t]here are arguably five such canons”: (1) a “treaty

interpretation canon,” (2) a “treaty abrogation canon,” (3) a “tribal sovereign

immunity canon,” (4) a “tribal sovereignty canon,” and (5) an “Indian ambiguity

canon.” Alex Tallchief Skibine, 55 U. Mich. J. L. Reform 267, 268–70 (2022). But

while the Supreme Court has been “inclined to apply the first two treaty-related

cannons [sic], as well as the tribal sovereign immunity canon, it has rarely applied, or

even discussed, the canons of tribal sovereignty and Indian ambiguity.” Id. at 269.

Even accepting a broad framing of the canon, only the last two seldom-applied

versions could be relevant here. And as we explained, the ambiguity canon has no

application here to unambiguous text. So the tribal sovereignty canon is the only

potentially relevant variant that might support the dissent’s clear statement rule. But

the tribal sovereignty variant is not a clear statement rule that applies at the outset of

a court’s interpretation; it too requires an ambiguity. See White Mountain Apache

Tribe v. Bracker, 448 U.S. 136, 143–44 (1980) (“Ambiguities in federal law have

been construed generously in order to comport with these traditional notions of

sovereignty and with the federal policy of encouraging tribal independence.”

(emphasis added)); Pueblo of San Juan, 276 F.3d at 1194 (“Doubtful or ambiguous

expressions . . . are to be construed as leaving tribal sovereignty undisturbed.”

(emphasis added)); Skibine, supra, at 269, 271 (“[T]he abrogation of sovereign

immunity requires ‘unequivocal expression of congressional intent’ while the

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abrogation of tribal sovereignty requires only ‘clear’ indication of congressional

intent. . . . The difference between ‘clear indication’ and ‘unequivocal expression’

may sound like a matter of semantics, but the fact remains that the tribal sovereign

immunity canon is being applied while the tribal sovereignty canon is not.”

(emphasis added)); Cohen’s Handbook at 153–54 (“The basic Indian law canons of

construction require . . . that tribal property rights and sovereignty are preserved

unless Congress’s intent to the contrary is clear and unambiguous.” (emphasis

added)).

The dissent nevertheless creates its own overarching clear statement rule by

relying on precedents that involved variations of the canon that have no application

here. For example, the dissent quotes Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978), to support the proposition that “the clear statement rule protects a tribe’s

sovereign interests . . . from all but the most ‘unequivocal expression of contrary

legislative intent’ by Congress.” Dissenting Op. at 7 (quoting Santa Clara Pueblo,

436 U.S. at 59); see also id. at 6 (“[C]ourts will not lightly assume that Congress in

fact intends to undermine Indian self-government.” (quoting Bay Mills Indian Cmty.,

572 U.S. at 790)).

But in both Santa Clara Pueblo and Bay Mills Indian Cmty., the issue before

the Supreme Court was whether a federal statute abrogated a tribal nation’s sovereign

immunity. To resolve that issue, the Court relied on the “baseline position” that to

abrogate “tribal immunity, . . . Congress must unequivocally express that purpose.”

Bay Mills Indian Cmty., 572 U.S. at 790 (citation modified); see also Santa Clara

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Pueblo, 436 U.S. at 58 (“It is settled that a waiver of sovereign immunity cannot be

implied but must be unequivocally expressed.” (quotation marks omitted)). And as

explained, the tribal sovereign immunity canon is distinct from the dissent’s freefloating sovereignty clear statement rule. Cf. Skibine, supra, at 271 (“‘[S]overeign

immunity’ is a discrete and well-defined area while tribal sovereignty is not[.]”). The

other cases the dissent relies on also do not support its broad application of the

canon. See Blackfeet Tribe of Indians, 471 U.S. at 766 (applying the Indian

ambiguity canon with the principle that “the States may tax Indians only when

Congress has manifested clearly its consent to such taxation”), Pueblo of San Juan,

276 F.3d at 1196 (concluding a federal law of general applicability did not preempt

“a tribe’s sovereign authority to enact and enforce laws”). Therefore, the Indian law

canon—as relevant here—only applies when a statute’s text is ambiguous. 10

In sum, because we conclude the provision is unambiguous (in that it has not

expired) the Indian law canon does not apply. See Negonsott v. Samuels, 507 U.S.

Contrary to the dissent’s assertion, the origins of the Indian law canon likewise do not support its novel clear statement rule. “The first Indian canons were developed in connection with interpreting treaties between the United States and Indian nations.” Skibine, supra, at 273 (emphasis added). “These canons then ‘jumped without discussion from the interpretation of treaties to the interpretation of statutes’ in the 20th century.” Navajo Nation, 599 U.S. at 572 (Thomas, J., concurring) (quoting Coney Barrett, supra, at 152). It was in Choate v. Trapp, 224 U.S. 665 (1912) that the Supreme Court—“without considering the potential impact of the structural differences between statutes and treaties”—extended the canons to the interpretation of statutes that Congress enacted to benefit tribal nations. See Coney Barrett, supra, at 152; see also id. at 151–52 (arguing the Court in Choate “overstated the case when [it] described the canon as . . . ‘a rule of construction [that] has been recognized, without exception, for more than a hundred years.’” (second alteration in original) (quoting Choate, 224 U.S. at 675)).

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99, 110 (1993) (“[W]e think that the Kansas Act quite unambiguously confers

jurisdiction on the State over major offenses committed by or against Indians on

Indian reservations, and we therefore have no occasion to resort to this canon of

statutory construction.”).

2. The EPA’s Authority to Impose Conditions

Pawnee Nation next argues that even if § 10211(a) is not expired, we should

nevertheless set aside the May 2025 decision because the EPA revoked the StateTribal Engagement Condition under an erroneous interpretation of the law. Despite

interpreting the provision to allow it to impose the Engagement Condition in its

January 2025 decision, the EPA reversed course, explaining in its May 2025 decision

that § 10211(a) “imposes a nondiscretionary duty for EPA to approve a proper

request and reserves no authority for EPA to impose additional requirements or

otherwise constrain the State’s administration of the subject environmental regulatory

programs.” R. at 1135. Because the EPA concluded that the provision “squarely

prohibit[s] precisely the type of additional requirements imposed by the” Engagement

Condition, the agency explained it had “no discretion but to withdraw the January

2025 Decision and replace it with a new approval that is legally compliant with the

strictures of SAFETEA.” Id. at 1136.

Pawnee Nation contends the agency incorrectly read § 10211(a) to foreclose

its ability to impose conditions on an approval of Oklahoma’s request. 11 It claims

Of course, even if Pawnee Nation were correct that § 10211(a) affords the EPA discretion to impose conditions, the EPA could nonetheless exercise that

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that nothing in § 10211(a) precludes the EPA from imposing conditions, so the

agency may do so if another source of law authorizes the condition. Pawnee Nation

also contends that the D.C. Circuit’s opinion in Oklahoma Department of

Environmental Quality v. EPA supports its position because that court interpreted

§ 10211(a) to allow the agency to impose conditions. See 740 F.3d 185, 190 (D.C.

Cir. 2014) (Okla. DEQ).

We are not persuaded. The text of the provision forecloses Pawnee Nation’s

proffered interpretation in three ways and Okla. DEQ is not persuasive.

First, § 10211(a) commands that the EPA “shall approve” Oklahoma’s request

to administer its programs in Indian country when the preceding statutory

requirements are met. Congress’s “use of a mandatory ‘shall’ in” statutes directing

agency action “impose[s] [a] directionless obligation[]” upon the agency. Lopez v.

Davis, 531 U.S. 230, 241 (2001); Scalia & Garner, supra, at 114 (“[W]hen the word

shall can reasonably be read as mandatory, it ought to be so read.”). The EPA

therefore does not possess the discretion to approve Oklahoma’s request only if the

State meets some other condition that the agency picks to impose. See Marathon Oil

Co. v. Lujan, 937 F.2d 498, 500 (10th Cir. 1991) (“Administrative agencies do not

possess the discretion to avoid discharging duties that Congress intended them to

discretion to not impose any conditions. But because the EPA did not withdraw the Engagement Condition based on its (alleged) discretion to do so, we must determine whether its proffered reason for revoking the Condition—that it was without statutory authority to impose it in the first place—is in accordance with § 10211(a). See Massachusetts v. EPA, 549 U.S. 497, 535 (2007) (“EPA must ground its reasons for action or inaction in the statute.”).

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perform.”). Under § 10211(a), the only conditions Oklahoma must satisfy are the

statutorily enumerated ones preceding the shall-approve clause. Any other reading

would nullify the mandatory term Congress included. Congress’s command that the

EPA “shall approve” a valid request does not authorize the agency to shrink that

approval by attaching a condition to it.

Second, if Oklahoma’s submitted regulatory program satisfies the enumerated

statutory conditions, § 10211(a) requires the EPA to approve Oklahoma’s request

“[n]otwithstanding any other provision of law” and “without any further

demonstration of authority by the State.” Section 10211(a) (emphasis added). The

notwithstanding clause means that even if some other source of law might allow, or

even require, the EPA to take some action (e.g., consult with the tribal nations under

the agency’s 1984 Policy), § 10211(a)’s mandatory “shall approve” command

overrides it. See NLRB v. SW Gen., Inc., 580 U.S. 288, 302 (2017) (“A

‘notwithstanding’ clause . . . shows which of two or more provisions prevails in the

event of a conflict.”); Dickerson, 310 U.S. at 555. As a result, the other sources of

law Pawnee Nation cites that allegedly authorized the January 2025 Engagement

Condition, see Ptr’s Br. at 40–44, are irrelevant—§ 10211(a) supersedes those

extratextual sources of law, see Scalia & Garner, supra, at 127 (“[T]he catch-all

notwithstanding is a fail-safe way of ensuring that the clause it introduces will

absolutely, positively prevail.”).

Third, § 10211(a)’s final shall-approve clause states, “the [EPA] shall approve

[Oklahoma] to administer the State program in the areas of the State that are in

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Indian country, without any further demonstration of authority by the State.”

Section 10211(a) (emphasis added). That clause’s use of the definite article “the”

before “State program” indicates that the EPA must approve the same State program

that the text of the provision previously introduced—i.e., the State program that the

EPA approved Oklahoma to administer in state territory. 12 See Scalia & Garner,

supra, at 140 (“Words are to be given the meaning that proper grammar and usage

would assign them.”). Under this definite-article grammatical principle, when a text

uses a definite article for a term (e.g., “the [noun]”), courts ordinarily presume it

refers back to the same previously introduced term, regardless of whether the

previous term followed a definite or indefinite article (e.g., “a [noun]”). See Nielsen

v. Preap, 586 U.S. 392, 408 (2019) (“[G]rammar and usage establish that ‘the’ is ‘a

function word . . . indicat[ing] that a following noun or noun equivalent is definite or

has been previously specified by context.’” (second alteration in original) (quoting

Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005))); Baldwin Graphic

Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342 (Fed. Cir. 2008) (“The subsequent use

of definite articles ‘the’ or ‘said’ in a claim [refers] back to the same claim

term . . . .”); GreenLatinos v. Suncor Energy, 184 F.4th 1171, 1187 (10th Cir. 2026)

The dissent disputes the definite-article principle since it is “an argument not made by EPA[.]” Dissenting Op. at 17. But we are not bound by a party’s failure to make a statutory interpretation argument. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”).

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(“‘The’ is a definite article, and definite articles usually refer to something already

specifically provided for.” (citation modified)). For example, suppose a statute

states, “Motorists shall not drive a six-wheeled (or more) vehicle in the left lane,

unless the vehicle is passing another vehicle.” Under this principle (and common

sense), “the vehicle” in the second clause refers to the “six-wheeled (or more)

vehicle” introduced in the first clause, such that the statute is talking about the same

vehicle.

Applying this principle of grammar here reveals that § 10211(a)’s meetsapplicable-requirements clause introduces a State program (“a regulatory program

submitted by the State”), and the next clause, the previous-state-approval

requirement, refers to that same State program (“the State program”). Section

10211(a) (emphasis added). Then, the final clause of the provision states the agency

“shall approve [Oklahoma] to administer the State program” in Indian country if

Oklahoma’s program satisfies the previous requirements. Id. (emphasis added).

Because the EPA must approve Oklahoma to administer “the State program” in

Indian country, the definite-article principle indicates the approved program must be

the same State program that the provision introduced in the two previous clauses: the

State program the agency approved in state territory and the same State program it

found met applicable requirements of the law. The EPA thus cannot impose a new

condition on the program it approves for Indian country or else it would not be the

same State program.

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The dissent argues that our discussion of the definite-article principle is off the

mark because “the follow-on sameness inquiry does its most muscular work when

there is something else that Congress could have been referring to.” Dissenting Op.

at 18. And according to the dissent, “there is nothing else that the Congress could

have been referring to, for as long as the program is administered by Oklahoma and

remains an environmental program, it is the same as the one already referred to in the

rider.” Id. But there is something else Congress could have referred to had it not

used a definite article in the final shall-approve clause: a State program that contains

an additional extra-legal requirement (i.e., a condition). As we explained, “the State

program” the EPA approves must be the same State program (“a regulatory program

submitted by the State”) the EPA had determined met applicable requirements of the

law. So if the EPA could impose another requirement—one not already required

under the law—the resulting program would no longer be the (same) State program;

it would be a (different) State program since it now contains a new, extra-legal

requirement. Section 10211(a), however, forecloses such an interpretation because it

requires the agency to approve the State program it determined met all applicable

legal requirements.

Pawnee Nation nonetheless contends the D.C. Circuit “recogniz[ed] that EPA

could attach conditions to approval of a SAFETEA request” in Okla. DEQ. Ptr’s

Reply at 25. But Pawnee Nation overstates the relevance of that case because the

D.C. Circuit in fact made no such interpretation. In Okla. DEQ, Oklahoma

challenged an EPA rule that established a federal Clean Air Act implementation plan

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in non-reservation Indian country. The EPA argued Oklahoma lacked Article III

standing to challenge the rule because any injury the State suffered was of its own

making since Oklahoma could have obtained regulatory authority over the relevant

Indian country under SAFETEA § 10211(a). 13 The D.C. Circuit rejected the EPA’s

argument by hypothetically stating the provision might authorize the EPA to impose

conditions on delegations of authority, and so “relief under the SAFETEA [was not]

so certain or complete as to render Oklahoma’s injury self-inflicted.” Okla. DEQ,

740 F.3d at 190. See also id. (“As the State points out, the EPA might attach a

condition to its approval . . . [a]nd if the EPA does interpret the SAFETEA as

authorizing it to attach conditions, then the agency might well be entitled to judicial

deference under [Chevron].” (emphasis added)). The D.C. Circuit, however, did not

purport to interpret § 10211(a)’s language when raising its uncertain hypothetical.

Accordingly, Okla. DEQ is not persuasive authority on the issue and does not

displace § 10211(a)’s plain meaning.

Finally, Pawnee Nation again asserts that the Indian law canon should tip the

scales in its favor. It argues that “EPA’s attempt to disclaim its authority [to impose

conditions] not only misreads the text of the SAFETEA Rider but also ignores the

established principle that ‘statutes are to be construed liberally in favor of the

It is unclear whether the EPA advanced a position in Okla. DEQ on whether it could impose conditions on an approval. But in any event, we do not afford the agency Skidmore-respect for its current interpretation that § 10211(a) does not grant it authority to impose conditions because the EPA has been inconsistent on the issue. See Loper Bright, 603 U.S. at 394.

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Indians,’ and to minimize infringements on tribal sovereignty.” Ptr’s Br. at 38

(citations omitted) (quoting Pub. Serv. Co. of N.M. v. Barboan, 857 F.3d 1101, 1108

(10th Cir. 2017)).

But as we explained, the Indian canon (or any of its relevant variants) only

applies when a statute is ambiguous. See supra Section II.C.1.e. And as the dissent

even acknowledges, “silence does not render the statute ambiguous” in the context of

an ambiguity-dependent interpretive canon. Dissenting Op. at 13–14 (quoting

Maralex Res., Inc. v. Barnhardt, 913 F.3d 1189, 1201 (10th Cir. 2019)). We

conclude the provision is unambiguous on this issue, so the canon does not apply.

But even if we were to apply the dissent’s purported clear-statement rule,

§ 10211(a) is not silent on the issue because its text unequivocally supports our

interpretation. As the dissent correctly concludes, the provision “is a clear statement

by Congress to generally subvert tribal sovereignty to that of the State of Oklahoma.”

Dissenting Op. at 14. That clear statement by itself is adequate to shield against any

further application of the Indian canon. See Lac du Flambeau Band of Lake Superior

Chippewa Indians v. Coughlin, 599 U.S. 382, 387–88, 394 (2023) (recognizing a

“clear-statement rule” protecting “tribal sovereign immunity,” but stating “[t]he rule

is not a magic-words requirement . . . . The clear-statement question is simply

whether, upon applying traditional tools of statutory interpretation, Congress’s

abrogation of tribal sovereign immunity is clearly discernable from the statute

itself. . . . As long as Congress speaks unequivocally, it passes the clear-statement

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test—regardless of whether it articulated its intent in the most straightforward way.”

(citation modified)).

We conclude § 10211(a) requires the EPA to approve Oklahoma’s submitted

State program—without any conditions—when the program satisfies the provision’s

enumerated requirements.

3. Section 10211’s Approval Requirements

Finally, Pawnee Nation argues the EPA misread the statutory requirements of

§ 10211(a) for approval of Oklahoma’s request. Pawnee Nation claims the EPA was

required under the meets-applicable-requirements clause to make a contemporaneous

determination (i.e., at the time of Oklahoma’s § 10211(a) request) that Oklahoma’s

programs comply with the law. In other words, it was not enough that the agency

may have previously determined Oklahoma’s programs complied with federal law

(e.g., when the State originally submitted the programs for approval in state

territory). Rather, the EPA must evaluate Oklahoma’s programs against federal law

at the time of the State’s request to extend them to Indian country.

As applied to the issue in this petition, Pawnee Nation’s interpretation would

require the EPA to determine that each of the twenty-six State programs that

Oklahoma seeks to extend to Indian country meet applicable requirements under their

relevant environmental statutes—even though the agency already made those

determinations when it originally approved the State to administer the programs in

state territory.

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Pawnee Nation’s primary argument proceeds in two steps. First, it claims

§ 10211(a) lays out two requirements: (1) the agency must determine the State

program “meets applicable requirements of the law,” and (2) the agency must

approve Oklahoma to administer the program in state territory. And second, because

the EPA necessarily determined that the State program complied with applicable law

when it approved of it in state territory, Pawnee Nation argues § 10211(a)’s meetsapplicable-requirements clause must then refer to a different determination, otherwise

the clause would be rendered superfluous by the previous-state-approval clause.

We start our assessment of § 10211(a)’s plain meaning with “plain old grade

school grammar[.]” United States v. Rentz, 777 F.3d 1105, 1110 (10th Cir. 2015) (en

banc). We agree with Pawnee Nation that the provision contains two distinct

requirements: the two independent clauses (meets-applicable-requirements and

previous-state-approval) that precede the final shall-approve clause are separated by a

comma and a coordinating conjunction (“and”). See United States v. Ron Pair

Enters., 489 U.S. 235, 241–42 (1989) (finding the first clause in a statute was

“distinct” and not “joined to the following clause” because the two clauses were “set

aside by commas” and “the conjunctive words ‘and any’” (emphasis added)); Scalia

& Garner, supra, at 141 (explaining the grammar canon dictates that a comma

followed by “the conjunction and” is “equivalent to together with” which creates two

“independent” clauses). But just because the two clauses are independent

requirements does not tell us when the EPA must complete those requirements. For

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instance, the EPA contends it is sufficient if both requirements were completed when

the agency approved Oklahoma to administer the programs in state territory.

We agree with the EPA that the clauses outline a simple two-step procedure:

the EPA must first determine whether the State program complies with the law, and

then it must approve Oklahoma to administer the same program in state territory. If

those requirements are met—no matter when the agency completed them—then the

EPA must approve a request to administer that same State program in Indian country.

This interpretation is reinforced by our previous discussion regarding the definitearticle grammatical principle. See supra Section II.C.2. The meets-applicablerequirements clause introduces “a” State regulatory program that the EPA must

determine complies with the law. The second clause then requires that the agency

approve “the State program” in state territory. The principle indicates that “the State

program” in the second clause is the same State program introduced in the first, see

Nielsen, 586 U.S. at 408, so the first clause must precede the second in time.

Pawnee Nation is right that this two-step procedure makes the meetsapplicable-requirements clause redundant in some circumstances, but that is not true

in all applications. For example, our interpretation does not render the first clause

superfluous for State programs that the agency has not yet approved Oklahoma to

administer in state territory. In such cases, the EPA would need to first determine the

newly submitted program complies with the law and then approve Oklahoma to

administer the program in state territory before it could approve Oklahoma’s

§ 10211(a) request to extend the program to Indian country. And given that Congress

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enacted the provision in 2005, it makes sense that its language contemplated yet-tobe enacted environmental laws and State programs seeking to implement them.

The first clause also does other work. The meets-applicable-requirements

clause and the previous-state-approval clause are both framed in the present tense,

which suggests that the EPA could deny Oklahoma’s request to administer a

regulatory program in Indian country when the program is not currently approved in

state territory, even if it was in the past. For example, if the EPA revoked

Oklahoma’s authority to administer a program in state territory through its normal

oversight process, it could deny a § 10211(a) request for that revoked program in

Indian country: The EPA’s most recent determination about the State program would

be that it does not meet applicable requirements of the law, even if it had previously

determined otherwise when it originally approved of the program in state territory.

The fact that the State’s submitted program must be subject to a current EPA

approval resolves some of Pawnee Nation’s concerns about the potential lack of

agency oversight over Oklahoma’s programs in Indian country. See Ptr’s Br. at 47–

52.

And as the EPA itself acknowledged in the May 2025 decision, the agency

retains its normal obligations and oversight authority under the substantive

environmental statutes. See R. at 1137 (“Although SAFETEA mandates approval in

the first instance, EPA notes that the Agency’s ordinary statutory and regulatory

authorities to oversee and review state programs will continue to apply as the

programs are implemented going forward.”). So even though the EPA is not required

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in this situation to make new determinations on the State programs’ compliance with

federal law under § 10211(a), the agency will still make those determinations on an

ongoing basis through its normal oversight process.

Pawnee Nation also argues that the meets-applicable-requirements clause’s

present verb tense supports its interpretation that the EPA must make a

contemporaneous determination that the State programs comply with the law. See

Section 10211(a) (“if [the EPA] determines that [a State program] submitted by

[Oklahoma] for approval . . . meets applicable requirements of the law” (emphasis

added)).

But the first clause also contains a verb phrased in the past tense: “a regulatory

program submitted by [Oklahoma] for approval . . . .” Id. (emphasis added). This at

least suggests that the State could have submitted the program before its § 10211(a)

request. Further debunking the significance of the provision’s verb tense is the fact

that the second clause (the previous-state-approval requirement) is also framed in the

present tense. See id. (“and [the EPA] approves the State to administer the State

program [in state territory]” (emphasis added)). But no one is suggesting that the

agency must contemporaneously reapprove of Oklahoma’s program in state territory

because the agency’s prior state approval was in the past and thus ineffectual under

§ 10211(a).

And as we explained previously, our conclusion that the clauses set out a

simple two-step process aligns with Congress’s choice to phrase the clauses in the

present tense. For example, if Oklahoma wanted to administer a regulatory program

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in Indian country under § 10211(a) that the EPA had not yet approved of in state

territory, the steps would occur in order. But that does not mean that past

determinations and approvals do not also satisfy the provision. While verb tense may

sometimes be useful to decipher the best reading of a statute, we conclude that it does

not point strongly in either direction for this issue. And because the plain meaning is

clear, we do not apply the Indian law canon. See Catawba Indian Tribe, Inc., 476

U.S. at 506.

We therefore conclude the EPA correctly determined Oklahoma’s programs

satisfied § 10211(a)’s meets-applicable-requirements clause when the agency

previously approved the State to administer those programs in state territory.

III. Conclusion

For these reasons, we deny Pawnee Nation’s petition and affirm the EPA’s

interpretation of § 10211(a).

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25-9548, Pawnee Nation of Oklahoma v. Zeldin, et al.

TYMKOVICH, Circuit Judge, concurring.

I write separately to clarify that the presumption against permanence does not

apply to SAFETEA, even if we were to reach the canon because of a textual

ambiguity. No court has ever applied the presumption to a statute beyond a singleyear appropriations act. SAFETEA was no such act: it was an authorization act that

primarily established and funded various transportation-related projects, some of

which lasted for only five years. I would not expand the scope of this ahistorical and

not-constitutionally based substantive canon by applying it to a general provision in a

multi-year authorization act. See Jones v. Hendrix, 599 U.S. 465, 492 (2023).

As we explained, the courts that have applied the canon trace its origins to the

Supreme Court’s decision in Minis v. United States, 40 U.S. (15 Pet.) 423 (1841).

See Majority Op., supra Section II.C.1.a. The provision at issue in Minis was located

within “an act making certain additional appropriations for the Delaware Breakwater,

and for certain harbors, and removing obstructions in and at the mouth of certain

rivers, for the year 1835.” 40 U.S. at 445 (emphasis added). Justice Story described

the statute as “an act making special and temporary appropriations,” or as he also put

it, “a mere appropriation law of a limited nature[.]” Id.

Each circuit that has since applied a presumption against permanence was also

considering a provision in a single-year appropriations bill. See, e.g., Atl. Fish

Spotters Ass’n v. Evans, 321 F.3d 220, 228 (1st Cir. 2003) (Appropriations bill at

issue stated, “No part of any appropriation contained in this Act shall remain

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available for obligation beyond the current fiscal year unless expressly so provided

herein.” (emphasis added) (quoting Pub. L. No. 106–553, app. B § 602)); see also

Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 141, 146–47 (2d Cir. 2002) (finding a

provision in “the 1999 Veteran Affairs and HUD Appropriations Act (‘the 1999

Appropriations Act’)” did not affect a permanent change in substantive law (internal

citation omitted)); Pub. L. No. 105-276, 112 Stat. 2461 (1998) (preamble to the 1999

Appropriations Act at issue in Martinez stated, “An Act making appropriations for

the Departments of Veterans Affairs and Housing and Urban Development, and for

sundry independent agencies, boards, commissions, corporations, and offices for the

fiscal year ending September 30, 1999[.]” (emphasis added)).

For example, the D.C. Circuit applied the presumption to a provision in a

single year “emergency supplemental appropriations bill” and found the provision

expired because it “used no words of futurity or permanency.” Bldg. & Constr.

Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 273–74 (D.C. Cir. 1992). The

appropriations bill at issue stated in its preamble that its purpose was to “provide dire

emergency supplemental appropriations for the fiscal year ending September 30,

1991[.]” Pub. L. No. 102-27, 105 Stat. 130 (1991) (emphasis added). The D.C.

Circuit stated, “While appropriation acts are Acts of Congress which can

substantively change existing law, there is a very strong presumption that they do

not, and that when they do, the change is only intended for one fiscal year.” Bldg. &

Constr. Trades Dep’t, 961 F.2d at 273 (emphasis added) (citation modified) (citing

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Minis, 40 U.S. at 443). It thus made sense for the D.C. Circuit to presume all

provisions in that statute were limited to the 1991 fiscal year.

And in Tin Cup, LLC v. United States Army Corps of Engineers, the Ninth

Circuit applied the presumption to a substantive provision in “the Energy and Water

Development Appropriations Act of 1993.” 904 F.3d 1068, 1071 (9th Cir. 2018).

The preamble to that Act stated its purpose was to “mak[e] appropriations for energy

and water development for the fiscal year ending September 30, 1993[.]” Pub. L. No.

102-377, 106 Stat. 1315 (1992) (emphasis added). Citing Minis, the Ninth Circuit

explained, “There is . . . a very strong presumption that if an appropriations act

changes substantive law, it does so only for the fiscal year for which the bill was

passed.” Tin Cup, 904 F.3d at 1073 (internal quotation marks omitted). The Ninth

Circuit thus applied the presumption and found the provision at issue expired because

it did “not contain a clear statement of futurity.” Id.

Restricting the presumption against permanence to apply only to annual

appropriations acts makes sense given that the canon is grounded in Congress’s

standing rules against including general legislation in appropriations bills. See

United States v. Vulte, 233 U.S. 509, 515 (1914) (“[Minis’s reasoning] follows

naturally from the nature of appropriation bills, and the presumption hencearising is

fortified by the rules of the Senate and House of Representatives.”); United States v.

Will, 449 U.S. 200, 222 (1980) (“[T]he rules of both Houses limit the ability to

change substantive law through appropriations measures.” (citing Senate Standing

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Rule XVI(4); House of Representatives Rule XXI(2))). There is, of course, no such

rule against including general legislation in authorization bills.

Congress also seems to have codified the presumption-against-permanence

substantive canon into law as applying to appropriations acts. Section 1301 of Title

31 to the U.S. Code states, “An appropriation in a regular, annual appropriation law

may be construed to be permanent or available continuously only if the appropriation

. . . expressly provides that it is available after the fiscal year covered by the law in

which it appears.” 31 U.S.C. § 1301(c) (emphasis added). See Majority Op., supra

Section II.C.1.a., at n.3 (explaining we held in Smithsfork Grazing Ass’n v. Salazar,

564 F.3d 1210 (10th Cir. 2009) that under 31 U.S.C. § 1301 Congress must clearly

state a provision in an annual appropriations act is permanent for us to construe it as

such). But Pawnee Nation did not raise this statute on appeal because § 1301 makes

clear the presumption only applies to an annual appropriations act.

Despite the fact that no court has ever applied the presumption to a statute

outside of an annual appropriations act, Pawnee Nation contends that other

authorities say the canon can also apply to authorization acts. But the authorities

Pawnee Nation cites that say as much still only discuss statutes enacted for a single

fiscal year. See, e.g., Ptr’s Reply at 12 (quoting Security Clearances at DOE,

Comptroller Gen., B-248926, 1992 WL 130552, at *3 (May 29, 1992) (“A general

rule regarding construction of annual authorization and appropriations acts is that,

absent a clear expression of permanence, material contained therein . . . is effective

only for one year.” (emphasis added))); id. (quoting Peter Raven-Hansen, et al.,

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Pulling the Purse Strings of the Commander in Chief, 80 Va. L. Rev. 833, 876 (1994)

(“[M]ost appropriation and many authorization acts that may restrict appropriations

are single-year legislation. Thus, substantive provisions contained in annual

legislation are presumed effective only for the fiscal year.” (emphasis added))); see

also U.S. Gov’t Accountability Off., GAO-16-464SP, Principles of Federal

Appropriations Law 2-86 (4th ed. 2016), https://www.gao.gov/assets/2019-11/675709.pdf (hereinafter “GAO Redbook”) (“Since an appropriation act is made

for a particular fiscal year, the starting presumption is that everything contained in

the act is effective only for the fiscal year covered. Thus, the rule is: A provision

contained in an annual appropriation act is not to be construed to be permanent

legislation unless the language used therein or the nature of the provision makes it

clear that Congress intended it to be permanent.” (emphasis added)).

For all these reasons, I have no trouble concluding that the so-called

presumption-against-permanence substantive canon applies only to appropriations

acts covering a single fiscal year. And with that determination in hand, the fact that

the canon does not apply to § 10211 is a foregone conclusion.

One must not forget that SAFETEA was not an appropriations act; it was an

authorization act that, among many other things, authorized and funded various

transportation programs for multiple fiscal years. The preamble for SAFETEA states

it is “[a]n Act To authorize funds for Federal-aid highways, highway safety

programs, and transit programs, and for other purposes.” Pub. L. No. 109-59, 119

Stat. 1144 (2005). Unlike the statutes at issue in the cases I discussed above that

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applied the canon, SAFETEA was not titled as an appropriations act, nor did it state

in its preamble that it was only in effect for a single fiscal year.

And to the extent that the difference between a five-year spending act and a

single-year appropriations act does not seem significant, SAFETEA was not solely a

five-year spending act, it contained a variety of provisions. Although many parts of

SAFETEA were only in effect for fiscal years 2005 to 2009, other provisions had no

sunset date—just like § 10211. For instance, if the Act instead stated in its preamble

that its purpose was “To authorize funds for Federal-aid highways, highway safety

programs, and transit programs, and for other purposes [for the fiscal years 2005 to

2009]” then perhaps I could envision applying the canon to a multi-year statute like

SAFETEA to presume Congress did not intend § 10211 to endure past September 30,

2009. See Pub. L. No. 109-59, 119 Stat. 1144 (2005).

In sum, we would be extending the narrow presumption against permanence

well beyond its previous application if we applied it to § 10211. Doing so would

cause us to reach back over twenty years to impose a post-hoc clarity tax on

Congress—requiring it to have used words of futurity on a multi-year nonappropriations bill. But because no court had ever applied the presumption to such a

bill and no congressional rule prohibited inclusion of general legislation in

authorization acts, Congress could not have legislated with such a requirement in

mind, and we should not presume it did.

Even if we were to apply the presumption, § 10211(a) overcomes it because its

text clearly indicates it is not expired.

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Pawnee Nation claims that § 10211’s absence from the U.S. Code supports its

argument that the provision is expired. But while “formal codification of a provision

is ‘relevant’ in considering permanence, . . . it is ‘not controlling.’” Kieran O’Neil,

In the Room Where It Happens: How Federal Appropriations Law Can Enforce

Tribal Consultation Policies and Protect Native Subsistence Rights in Alaska, 98

Wash. L. Rev. 659, 717 (2023) (quoting GAO Redbook at 2-90). “The GAO

Principles require us to look to Congress’s reasoning for not codifying as evidence of

non-permanence, but ‘failure to include a provision in the Code would appear to be

of no significance’ in determining Congress’s intent regarding permanence.” Id. at

717–18 (emphasis added) (quoting GAO Redbook at 2-90).

Additionally, the fact that § 10211’s subject matter is completely unrelated to

the funding portions of SAFETEA strongly displaces the presumption. The U.S.

Government Accountability Office’s Redbook states, “The presumption [against

permanence] can be overcome if the provision uses language indicating futurity or if

the provision is of a general character bearing no relation to the object of the

appropriation.” GAO Redbook at 2-86 (emphasis added). “If the provision bears no

direct relationship to the appropriation act in which it appears, this is an indication of

permanence.” Id. at 2-92. The Supreme Court in Minis likewise suggested that a

remote degree of relationship indicates permanence: “A general rule, applicable to all

future cases, would most naturally be expected to find its proper place in some

distinct and independent enactment.” 40 U.S. at 445–46 (emphasis added); see also

Atl. Fish Spotters Ass’n, 321 F.3d at 225 (considering the degree of relationship when

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determining whether Congress intended a provision in an appropriations bill to be

permanent).

The degree of relationship between the subject matter of the

provision and the surrounding text of the appropriations law

bears strongly on permanent intent. . . . [T]he more general

and distant a provision is from the subject matter of an

appropriations law, the more likely a court will view it as

permanent legislation. For instance, the 1984 Comptroller

General of the United States, Milton J. Socolar, analyzed a

provision relating to energy tax credits embedded within a

miscellaneous section of the Supplemental Appropriations

Act of 1983. The surrounding text did not include

appropriations related to taxes or energy. Finding the

provision in question “include[d] no such reference limiting

its effect to the life of an appropriation” and “[stood] in

marked contrast” to the other provisions in the section,

Comptroller Socolar concluded that the provision was

intended to be permanent legislation.

O’Neil, supra, at 719–20 (second and third alterations in original) (quoting Sen.

Hatfield, U.S. Comm. on Appropriations, B-214058 (Comp. Gen. Feb. 1, 1984)).

Like the tax provision in the Supplemental Appropriations Act of 1983,

§ 10211 is in a miscellaneous section of SAFETEA and sharply diverges from the

transportation-related funding provisions that sunset in 2009. The weak relationship

between § 10211 and the rest of SAFETEA provides strong evidence that Congress

intended it to be permanent legislation.

So in addition to our determination that the presumption against permanence

does not apply because it is only an ambiguity-resolving canon, I would also

conclude that it does not apply to a multi-year authorization act like SAFETEA, and

that even if it were to apply, § 10211(a)’s text clearly overcomes the presumption.

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No. 25-9548, Pawnee Nation of Oklahoma v. Zeldin

FEDERICO, Circuit Judge, dissenting.

I part company with the majority opinion because it makes two

fundamental errors. First, it too narrowly construes the Indian canons – that

is, canons plural, not a singular canon as the majority interprets it – and then,

once narrowed, misapplies the canons to the language of the statutory rider

inserted into SAFETEA as § 10211(a) (rider).

The Indian canons rest upon a foundation of respect for tribal

sovereignty and the federal government’s general trust responsibility to the

tribes. Here, however, EPA relies on the rider – an uncodified, last-minute

addition to a 2005 transportation funding bill – to lay down a vast upheaval of

environmental and Indian policy in Oklahoma. Through the rider, EPA

authorized the State of Oklahoma to administer its environmental programs

in Indian country, rather than EPA or the tribes themselves. Although the

rider permits this upheaval, it does not also require the Pawnee Nation and

other tribes to be completely cut out of the deal. This court should not so readily

acquiesce to the total displacement of the tribes as the first sovereigns of their

land absent a clear statement from Congress to the contrary.

A proper application of the canons renders a conclusion that when

applying the mandate of the rider, EPA does have the discretion and authority

to impose at least some tribal-protective conditions on Oklahoma’s regulatory

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jurisdiction and administration of environmental programs in Indian country.

Because EPA concluded otherwise, I would grant Pawnee Nation’s petition and

remand back to EPA to reconsider its agency decision. Relying upon first

principles in Indian law, I respectfully dissent.

The majority engages in a hypertextual analysis to find the rider is

unambiguous and thus the Indian law canon “has no application.” Majority at

32. I cannot square this holding with the Supreme Court’s pronouncement

“that the standard principles of statutory construction do not have their usual

force in cases involving Indian law,” Montana v. Blackfeet Tribe of Indians, 471

U.S. 759, 766 (1985), or with a recognition by this court, sitting en banc, that

“[i]n the context of Indian law, appeals to ‘plain language’ or ‘plain meaning’

must give way to canons of statutory construction peculiar to Indian law.”

NLRB v. Pueblo of San Juan, 276 F.3d 1186, 1196 (10th Cir. 2002) (en banc).

As a starting point, there is no such thing as “the” Indian canon – there

are many. As summarized by a respected treatise:

The basic Indian law canons of construction require: first, that

treaties, agreements, statutes, and executive orders be liberally

construed in favor of the Indians; second, that all ambiguities are

to be resolved in their favor; third that treaties and agreements

are to be construed as the Indians would have understood them;

and fourth, that tribal property rights and sovereignty are

preserved unless Congress’s intent to the contrary is clear and

unambiguous.

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Felix Cohen, Handbook of Federal Indian Law § 3.01[1], 153–54 (2024 ed.)

(hereinafter Cohen’s Handbook); see also HRI, Inc. v. EPA, 198 F.3d 1224,

1244-45 (10th Cir. 2000) (discussing Indian canons of statutory construction,

“derived from the trust relationship, requiring construction of statutes

liberally in favor of Indians and resolution of ambiguities in their favor.”)

(emphasis added).

This collection of rules dates to before the Founding, when the Law of

Nations governed the relationship between the tribes and the crowns of

Europe. See, e.g., Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 584 (1823)

(Marshall, C.J.) (tracing the suzerainty of the federal government over the

Indians to inherited principles of customary international law that “all the

nations of Europe, who have acquired territory on this continent, have asserted

in themselves, and have recognised in others”). By custom and treaty-making,

certain conventions emerged between the United States and the tribes to

regulate their relationships, and the Indian canons are vestiges of these

practices. Cf. Arizona v. Navajo Nation, 599 U.S. 555, 572 (2023) (Thomas, J.,

concurring); Amy Coney Barrett, Substantive Canons and Faithful Agency, 90

B.U. L. Rev. 109, 151-52 (2010).

The link between the Indian canons and the old principles of

international law has eroded over time. See Act of Mar. 3, 1871, 16 Stat. 544,

566 (codified as amended at 25 U.S.C. § 71) (ending treaty-making with the

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Indians). But see United States v. Lara, 541 U.S. 193, 201 (2004); id. at 218

(Thomas, J., concurring) (Act of Mar. 3, 1871 is “constitutionally suspect”). And

although the Indian canons share a theoretical and historical source, practical

limitations distinguish them.

Consider, for example, the liberal construction canon. The Supreme

Court has “consistently admonished that federal statutes and regulations

relating to tribes and tribal activities must be ‘construed generously in order

to comport with . . . traditional notions of [Indian] sovereignty and with the

federal policy of encouraging tribal independence.’” Ramah Navajo School Bd.,

Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 846 (1982) (alterations

in original) (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136,

144 (1980)). As this court has explained, “normal rules of construction do not

apply when Indian treaty rights, or even nontreaty matters involving Indians,

are at issue.” EEOC v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir. 1989).

The principle of liberal construction may sometimes require that we indulge

an otherwise unnatural reading of the statute, even at the expense of “plain

meaning,” to vindicate the background rule against which Congress legislates

– tribal sovereignty. Pueblo of San Juan, 276 F.3d at 1196.

But in the Supreme Court’s caselaw, there is an important limit on the

canon of liberal construction – it applies only to “statutes passed for the benefit

of dependent Indian tribes or communities.” Alaska Pac. Fisheries Co. v.

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United States, 248 U.S. 78, 89 (1918). The Supreme Court has suggested that

this language is not mere rhetoric, but in fact a substantive limit on the

application of this canon of liberal construction. See, e.g., Negonsott v. Samuels,

507 U.S. 99, 110 (1993). That limit sensibly reconciles the liberal construction

canon with a broader justification that we generally read legal texts in context,

including their object and purpose. See Gundy v. United States, 588 U.S. 128,

141 (2019) (Kagan, J., plurality). Where a statute is enacted “for the benefit”

of the tribe, it makes sense to liberally construe its provisions in favor of the

Indians, preferring even an otherwise less natural reading of the text because

the context-based purpose points in that direction. Negonsott, 507 U.S. at 110

(quoting Bryan, 426 U.S. at 392). However, where a statute is not so enacted,

the justification for liberal construction dissipates.

That distinction matters when considering this rider. Indeed, the obvious

purpose of the rider was to prioritize Oklahoma’s sovereignty over that of the

tribes in Indian country. So, were it only a matter of the liberal construction

canon (or the resolving ambiguities canon, as the majority applies), the Indian

canons of construction may not aide the Pawnee Nation.

But compare the liberal construction canon with the clear statement

rule. “That rule of construction reflects an enduring principle of Indian law:

Although Congress has plenary authority over tribes, courts will not lightly

assume that Congress in fact intends to undermine Indian self-government.”

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Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 790 (2014). “We therefore

do not lightly construe federal laws as working a divestment of tribal

sovereignty and will do so only where Congress has made its intent clear that

we do so.” Pueblo of San Juan, 276 F.3d at 1195. “The correct presumption is

that silence does not work a divestiture of tribal power.” Id. at 1196.

The majority side-steps the clear statement rule by conflating and

combining the Indian canons into a single, ambiguity-resolving tool. However,

the trigger point for the clear statement rule and its primary limiting principle

is the tribe’s sovereign interests, when a tribal interest rooted in sovereignty

can be identified. See, e.g., Pueblo of San Juan, 276 F.3d at 1198–99 (A Tribe’s

“[p]roprietary interests and sovereign interests are separate: One can own land

without having the power to govern it by policy determinations as a sovereign,

and a government may exercise sovereign authority over land it does not

own.”); id. at 1192–93.

A tribe’s sovereign interests range widely, from its interest in being free

from suits without its consent, see, e.g., Bay Mills, 572 U.S. at 788, to its

interest in the welfare of its children, see, e.g., 25 U.S.C. § 1901(3), to its

interest in exercising “civil authority” over affairs pertaining to “the political

integrity, the economic security, or the health or welfare of the tribe,” Montana

v. United States, 450 U.S. 544, 566 (1981). Sometimes these interests may not

align with the interests of individual members of the tribe. See, e.g., Santa

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Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978) (Tribe’s sovereign immunity

from suit barred access to federal forum for tribe member in intratribal

dispute). Even so, the clear statement rule protects a tribe’s sovereign

interests, even against the interests of its members, from all but the most

“unequivocal expression of contrary legislative intent” by Congress. 1 Id.

The canons collectively support a larger principle that forms the bedrock

of federal Indian law: the trust responsibility. At its most general, the trust

responsibility reflects the custom born of consistent practice that has arisen

between the tribes and the United States. The Supreme Court “has recognized

the distinctive obligation of trust incumbent upon the Government in its

dealings with these dependent and sometimes exploited people.” Seminole

Nation v. United States, 316 U.S. 286, 296 (1942). The Government’s “conduct,

as disclosed in the acts of those who represent it in dealings with the Indians,

should therefore be judged by the most exacting fiduciary standards.” Id. at

297; see also United States v. Mitchell, 463 U.S. 206, 225 (1983) (referring to

1 The majority argues the clear statement rule, as discussed here, is

unsupported by caselaw and attempts to distinguish the cited cases on the basis that a tribe’s sovereign immunity is different from a tribe’s sovereignty. Majority Op. 35–37. And that while the clear statement rule may apply when a statute seeks to destroy a tribe’s sovereign immunity, it does not equally apply when dealing with a tribe’s sovereignty interest. But this court, in Pueblo of San Juan, required a clear statement by Congress to divest a tribe’s sovereignty interest, without any application or analysis into a tribe’s sovereign immunity. 276 F.3d at 1194–98. Thus, the distinction parsed by the majority does not persuade.

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“undisputed existence of a general trust relationship between the United

States and the Indian people” as a “principle [that] has long dominated the

Government’s dealings with Indians”).

Thus, the Indian canons have a common source – the inherent

sovereignty of the tribes. They share a common end as well – the continued

sovereignty of the tribes, a concept bound up in the Government’s trust

responsibility to ensure the welfare of the tribes.

For more than forty years, these principles have also been embedded in

EPA policy. Although EPA had “previously issued general statements of policy

which recognize the importance of Tribal Governments in regulatory activities

that impact reservation environments,” EPA precipitated a need in 1984 to

“consolidate and expand on existing EPA Indian Policy statements in a manner

consistent with the overall Federal position in support of Tribal ‘selfgovernment’ and ‘government-to-government’ relations between Federal and

Tribal Governments.” EPA Policy for the Administration of Environmental

Programs on Indian Reservations 1 (Nov. 8, 1984) (R. I at 1, hereinafter 1984

EPA Policy). EPA distilled several specific administrative planks by which it

would implement this policy. As relevant here:

In keeping with the principle of Indian self-government, the

Agency will view Tribal Governments as the appropriate nonFederal parties for making decisions and carrying out program

responsibilities affecting Indian reservations, their environments,

and the health and welfare of the reservation populace. Just as

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EPA’s deliberations and activities have traditionally involved the

interests and/or participation of State Governments, EPA will look

directly to Tribal Governments to play this lead role for matters

affecting reservation environments.

Id. at 2. Moreover, EPA took the position that “[u]ntil Tribal Governments are

willing and able to assume full responsibility for delegable programs the

Agency [and not the states] will retain responsibility for managing programs

for reservations (unless the State has an express grant of jurisdiction from

Congress sufficient to support delegation to the State Government).” Id. So, for

nearly as long as there have been environmental laws to administer, EPA

policy has put respect for tribal sovereignty at the forefront. Id.; see also Wash.

Dep’t. of Ecology v. EPA, 752 F.2d 1465, 1470 (9th Cir. 1985) (“Respect for the

long tradition of tribal sovereignty and self-government . . . underlies the rule

that state jurisdiction over Indians in Indian country will not be easily

implied.”); Indian Country, U.S.A., Inc. v. Okla. ex rel. Okla. Tax Comm’n, 829

F.2d 967, 976 (10th Cir. 1987).

In sum, the Indian canons do significant work in how this court

interprets the rider. Concluding the rider is not ambiguous, the majority cast

aside the canons and conclude “the Indian law canon does not apply.” Majority

at 37. The majority continues that even if it were to apply, the rider’s clear

statement subverting tribal sovereignty “shield[s] against any further

application of the Indian canon.” Id. at 45.

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But the majority misses a critical distinction. Even under the majority’s

interpretation that the canon applies only if a statute is ambiguous, it misses

that the rider is ambiguous because it is silent as to the precise issue that

Pawnee Nation raises. That is, the rider is silent as to whether approving

Oklahoma to administer EPA programs in Indian country allows EPA to place

some additional conditions on its approval. The principle that courts must not

construe statutes to abrogate tribal sovereignty absent a clear statement of

congressional intent to do so creates the very ambiguity that the majority finds

lacking.

On the one hand, the rider unambiguously limits and diminishes tribal

sovereignty by allowing Oklahoma to assume administrative control over

environmental programs on tribal land. On the other hand, the rider is silent

as to whether allowing Oklahoma to administer EPA programs also permits

EPA to impose additional conditions in delegating its administrative powers.

This silence requires the court to apply the Indian canons to resolve the

resultant ambiguity. In other words, congressional silence in this context,

where tribal sovereignty and state sovereignty collide, means the rider should

not be construed to turn the EPA into a rubber stamp. This error became

evident when the majority considered whether EPA has discretion under the

rider to impose tribal consultation conditions upon Oklahoma, which is where

I next turn.

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In January 2025, EPA approved, by a letter to Governor Stitt,

Oklahoma’s request to administer environmental programs in Indian country.

R. XV at 1. The letter also explained that, “[t]ypically, EPA excludes Indian

country from its approvals of state environmental regulatory programs,” id. at

2, but EPA relied upon the rider to grant Oklahoma’s request to administer its

programs in Indian country. The approval included a condition that the State

must consult with the tribes. Id. at 6. EPA anticipated “that this condition will

not prove unduly burdensome, will help ensure that views of the affected

sovereign Tribes are appropriately incorporated into environmental decision

making in their areas of Indian country, and will thereby avoid unnecessary

potential conflicts and improve environmental regulation in the covered

areas.” Id. at 1–2. Also, and salient to this issue before this court, EPA,

referring to the rider, concluded “[t]he statute does not preclude such a

condition[.]” Id. at 6.

Four months later, in May 2025, EPA withdrew the January decision

and entered the final agency decision that led to this litigation. The May letter

explained EPA’s current view that the rider “provides EPA no discretion to

incorporate additional factors or requirements in rendering its approval.” R.

XVIII at 16 n.4. So, although the language of the rider did not change between

January and May 2025, it was read differently by EPA after a change in

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presidential administrations. This wedge between the two EPA letters – and

EPA’s differing conclusion on whether the rider gives it discretion to impose a

tribal consultation condition on Oklahoma – is the same wedge between the

majority’s opinion for the court and this dissent.

Pawnee Nation argues that EPA’s decision eliminating the tribal

engagement condition should be set aside because the rider does not preclude

agency discretion to impose tribe-protective conditions on Oklahoma’s

regulatory jurisdiction in Indian country. Pawnee Nation is correct. Their

sovereign interests are deeply affected by EPA’s decision, so EPA must point

to clear language in the statute that overrides its trust responsibility to

safeguard tribal sovereignty. See SEC v. Chenery Corp., 318 U.S. 80, 94 (1943).

The rider contains no such language.

Pawnee Nation retains a sovereign interest in administering

environmental programs in Indian country. EPA’s 1984 Policy recognizes as

much. EPA 1984 Policy at 2. And Congress’ repeated authorization for EPA to

treat tribes as states for the purposes of federal environmental law manifests

legislative recognition, accompanied by long-standing executive practice, that

tribes have a substantial sovereign interest in environmental affairs. See

Washington Dep’t of Ecology v. EPA, 752 F.2d 1465, 1471 (9th Cir. 1985) (“The

federal government has a policy of encouraging tribal self-government in

environmental matters. That policy has been reflected in several

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environmental statutes that give Indian tribes a measure of control over

policymaking or program administration or both.”); Wisconsin v. EPA, 266 F.3d

741, 750 (7th Cir. 2001). There is no question the rider implicates this interest;

though it acts on tribes indirectly through EPA, its purpose and effect are

unquestionably targeted at the tribes’ sovereign interests. Thus, the clear

statement rule is triggered, and this Indian canon of construction aides the

interpretation of this rider.

The majority endorses the EPA’s first line defense, that the rider is not

ambiguous, and so “the canon” is inapplicable. Majority at 32; Resp. Br. at 55.

But for reasons previously canvassed, both the majority and EPA overlook how

congressional silence creates ambiguity in the statutory language and requires

application of the clear statement canon.

“Ambiguity canons merely instruct courts on how to ‘choos[e] between

equally plausible interpretations of ambiguous text,’ and are thus weaker than

clear-statement rules.” West Virginia v. EPA, 597 U.S. 697, 742 n.3 (2022)

(Gorsuch, J., concurring) (alteration in original) (quoting Barrett, Substantive

Canons and Faithful Agency, at 109). Here, the issue is not solely whether the

statute is ambiguous, but whether the statutory rider affirmatively, clearly,

unequivocally, and precisely supports EPA’s interpretation that it has no

discretion under the rider but to approve, or not, Oklahoma’s request. In the

former context, this court has said that “silence does not render the statute

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ambiguous.” Maralex Res., Inc. v. Barnhardt, 913 F.3d 1189, 1201 (10th Cir.

2019). But in the latter, the clear statement rule context, silence is insufficient

to impinge tribal sovereign interests. “Because the Tribe retains all inherent

attributes of sovereignty that have not been divested by the Federal

Government, the proper inference from silence . . . is that the sovereign power

. . . remains intact.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987)

(alterations in original) (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S.

130, 149 n.14 (1982)); see also Pueblo of San Juan, 276 F.3d at 1195. Here, the

expounded principles collide and create a situation in which congressional

silence itself creates the very ambiguity the canons are to resolve. Although

silence alone may not typically give rise to an ambiguity, it can do so when, as

here, the rider prioritizes Oklahoma and divests the tribe’s sovereignty but

does not dictate all the contours of that delegation.

Even so, in applying the clear statement rule, I am also clear-eyed about

what the rider does obviously do – it requires EPA to treat Oklahoma, not the

tribes, as the primary non-federal party in Indian country environmental

programming, and it prevents the EPA from treating a tribe as a state for the

purposes of federal environmental law without Oklahoma’s consent. So, I agree

with the majority that the rider is a clear statement by Congress to generally

subvert tribal sovereignty to that of the State of Oklahoma.

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However, contrary to the majority’s assertion, this does not end the

inquiry, nor does it require that the canons be set to the side as inapplicable.

The statutory text of the rider does not address the precise issue that Pawnee

Nation raises – whether EPA has the authority to impose at least some tribeprotective conditions on Oklahoma’s regulatory jurisdiction. At best, the

statute is silent as to this specific issue. Therein lies the ambiguity.

Most illustratively, the rider expressly subjects Oklahoma to “applicable

requirements of the [federal environmental] law.” SAFETEA § 10211(a). And

it has been EPA’s longstanding position that among the applicable

requirements of substantive environmental law is that state programming

cannot diminish tribal sovereignty. See Washington Dep’t of Ecology, 752 F.2d

at 1472. While EPA has often protected tribal sovereignty over the

environment by outright prohibiting state programming in Indian country,

“the power to do the greater necessarily carries with it the right to do the

lesser” in administrative law. McClellan v. Chipman, 164 U.S. 347, 360 (1896).

And while Congress addressed two of EPA’s principal, greater powers, it did

not address any lesser powers, like limited conditioning of state environmental

regulatory jurisdiction for the purpose of vindicating tribal sovereignty.

Therefore, the rider is ambiguous as to whether EPA can place conditions when

it allows a state to administer EPA programs in Indian country due to

congressional silence as to the extent EPA must delegate its trust

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responsibility to Oklahoma. This ambiguity triggers the application of the

canons.

The majority solely performs a textual analysis of the rider to conclude

that it does not permit EPA any discretion to impose tribe-protective

conditions. But this analysis is insufficient to overcome the clear statement

rule. Adopting EPA’s primary argument, the majority points to the statute’s

use of the phrase “shall approve” to argue that EPA lacked any discretion to

approve conditionally. Majority at 39. The error here, however, is in viewing

mandatory requirements as necessarily and mutually exclusive of discretion

in the carrying out of that requirement. Congress often imposes mandatory

requirements to exercise discretion in particular ways or tolerates certain

degrees of discretion in the execution of mandatory requirements, so long as

the requirement is fulfilled. See, e.g., Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644, 671 (2007); see also id. at 692 (Stevens, J., dissenting).

Other provisions of the rider do not assist EPA. First, the prefatory

phrase “[n]otwithstanding any other provision of law” does not bar EPA from

relying on independent sources of authority because, later in the same

sentence, the statute incorporates those independent sources by reference to

the “applicable requirements” of the federal environmental law under which

Oklahoma seeks regulatory jurisdiction. SAFETEA § 10211(a). As explained,

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EPA has consistently rooted respect for tribal sovereignty as an underlying

principle of substantive federal environmental law.

Second, the phrase “without any further demonstration of authority” is

not a clear statement to divest EPA of authority to impose conditions. Id. The

best reading of “demonstration of authority” is that it refers to the default

framework for adjudicating disputes between state and tribal civil regulatory

jurisdiction, known as Bracker balancing. See Bracker, 448 U.S. at 143–45;

Montana v. United States, 450 U.S. 544, 565–66 (1981); see also Amendments

to the Water Quality Standards Regulation That Pertain to Standards on

Indian Reservations, 56 Fed. Reg. 64876, 64878 (Dec. 12, 1991) (suggesting

EPA will use this framework to adjudicate state-tribal conflicts). In any event,

a requirement to consult with the tribes, as imposed by EPA in its now-vacated

January 2025 Decision, is not a “further demonstration of authority,” and EPA

does not argue that it is. Perhaps more substantive requirements might violate

this language in the rider, but the January 2025 EPA decision to require

engagement and consultation does not.

The majority’s next textual point (an argument not made by EPA) is that

construing the rider to reserve to the agency the authority to condition

Oklahoma’s programming would somehow transform Oklahoma’s program

such that it would cease to be “the same State program” as the one previously

submitted. Majority at 40–42 (emphasis in original). Of course, the rider does

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not use the word “same,” and if EPA puts conditions on Oklahoma’s state

program, it does not cease to be the same state program under environmental

law. It cannot be otherwise, or else EPA has certainly violated the terms of

rider because the programs it approved in May 2025 cannot be the exact same

as the Oklahoma programs previously submitted and which EPA determined,

at some long-ago time, met applicable requirements.

What the majority misses in its discussion of “the definite-article

grammatical principle” is that the follow-on sameness inquiry does its most

muscular work when there is something else that Congress could have been

referring to. By use of the definite article, Congress makes plain that it is

referring to an already-provided-for object with more precision. Here, there is

nothing else that the Congress could have been referring to, for as long as the

program is administered by Oklahoma and remains an environmental

program, it is the same as the one already referred to in the rider. Had EPA

allowed Oklahoma to administer a program in Indian country the state had

never previously submitted, that would be a more obvious problem, but no

changes to the terms or conditions of a program so fundamentally transform it

such that it is no longer an Oklahoma environmental program.

The bottom line is the clear statement rule applies because the tribes,

including Pawnee Nation, have a sovereign interest in the administration of

environmental programs in Indian country, and the rider is ambiguous as to

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whether any sort of conditions may be implemented in favor of their

sovereignty. And here, the clear statement rule carries added force because the

EPA bears a deeply rooted administrative duty to safeguard the tribes’

sovereign interest. To override both the tribes’ inherent sovereignty and EPA’s

administrative authority would represent a stark and major departure from

prior practice, with significant consequences for the health, welfare, and

sovereign integrity of the Pawnee Nation. We usually apply the Indian canons

and other substantive canons “to protect against ‘unintentional, oblique, or

otherwise unlikely’ intrusions on these interests.” West Virginia v. EPA, 597

U.S. at 742 (Gorsuch, J., concurring) (quoting NFIB v. OSHA, 595 U.S. 109,

125 (2022) (Gorsuch, J., concurring)); see also Cohen’s Handbook § 9.04(3)(c),

668–69 (2024 ed.). Under such circumstances, Congress shouldered the burden

to speak with unmistakable precision. I would hold that Congress did not speak

clearly enough to support EPA’s underlying decision.

III

Our duty is to “hold unlawful and set aside” EPA’s action if it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2)(A); Diné Citizens Against Ruining Our Env't v.

Haaland, 59 F.4th 1016, 1029 (10th Cir. 2023). Because EPA concluded that it

has no discretion to impose a tribal consultation requirement on Oklahoma,

EPA rendered a final decision that was “not in accordance with the law.”

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The majority may well be correct that EPA could exercise its discretion

to not impose any conditions. Majority at 38 n.11. But EPA must “ground its

reasons for action or inaction in the statute,” Massachusetts v. EPA, 549 U.S.

497, 535 (2007), so this court should remand to the EPA to take another look

at it. Given that the majority does not reach this same conclusion, I respectfully

dissent.

Pawnee Nation of Oklahoma v. Zeldin

Authorities cited

Opinion · public domain