Wyoming tribes lose major ruling in reservation boundary case

Wednesday, February 22, 2017

A federal appeals court has dealt a huge blow to two tribes as part of a long-simmering dispute over the boundaries of their reservation in Wyoming.

By a 2-1 vote, the 10th Circuit Court of Appeals on Wednesday held that Congress diminished the Wind River Reservation in 1905. The majority on a three-judge panel said it was clear that the boundaries were altered when the home of the Eastern Shoshone Tribe and the Northern Arapaho Tribe was opened to non-Indian settlement.

"We believe Congress’s use of the word 'cede' can only mean one thing — a diminished reservation," Chief Judge Timothy M. Tymkovich wrote for the panel, quoting from the 1905 law at issue in the case.

"A review of several dictionaries from the turn of the twentieth century confirms that adding the words 'sell' or 'convey' would not materially change the intent Congress evinced in the 1905 act," Tymkovich continued in the 39-page opinion.

The decision marks a victory for Wyoming, were officials have long contended that the reservation was diminished in 1905. The state courts have repeatedly agreed with that assertion and now the federal judiciary has concurred.

More importantly, the ruling means the city of Riverton is not considered Indian Country. The Environmental Protection Agency, during the Obama administration, had concluded otherwise when it approved the tribes' application to develop air quality standards under the Clean Air Act.

The tribes can still exercise environmental authority over the portions of the reservation that are not considered to be diminished. But taking Riverton, a border town where about 10.4 percent of the population is American Indian or Alaska Native, out of the equation undercuts their long-running efforts to assert jurisdiction there.

The third member of the panel also pointed out that much of the land described in the 1905 law is still held in trust for the two tribes and their citizens. To Judge Carlos Lucero, that means Congress did not intend for the reservation to be diminished.

"Despite the sometimes conflicting treatment of the area by non-Indian authorities, there can be little doubt that most of the opened area retains its Indian character," Lucero wrote in his 14-page dissent.

The split nature of the ruling makes it a good candidate for a rehearing by a larger panel of judges on the 10th Circuit. It's also possible for the tribes, or the EPA, to appeal to the U.S. Supreme Court.

The tribes, however, might not be able to count on the Trump administration for support. The EPA's new leader is Scott Pruitt who joined a brief in the case when he was serving as Oklahoma's attorney general.

The brief did not argue whether or not Congress diminished the reservation. But it urged the 10th Circuit not to afford deference to the EPA's determination on the issue and the court did exactly that, although it said it was doing so based on direction from the Supreme Court.

The nation's highest court last heard a reservation boundary case during its October 2015 term and the outcome was surprising considering that Indian interests generally fare poorly there. By a unanimous 8-0 vote, the justices held that Congress did not diminish the home of the Omaha Tribe in Nebraska.

But Justice Clarence Thomas stressed that each boundary case is fact-specific. The courts must look to the text of any acts of Congress regarding the reservation, the circumstances of passage and how the land was treated subsequently after passage.

At Wind River, the 10th Circuit majority said the first two factors weighed against the tribes and EPA. The continued existence of trust land in the diminished area does not alter the analysis either, Judge Tymkovich wrote.

Turtle Talk has posted briefs from the case, Wyoming v. Environmental Protection Agency.

10th Circuit Court of Appeals Decision:
Wyoming v. Environmental Protection Agency (February 22, 2017)