Trump administration abandons tribes in battle over boundaries of reservation in Wyoming

Monday, August 14, 2017  

The Trump administration has abandoned two tribes as they seek to protect their homelands in Wyoming from an attack by the state government.

After securing two delays, the new leader of the Environmental Protection Agency declined to support the Eastern Shoshone Tribe and the Northern Arapaho Tribe in their request for a rehearing in the closely-watched case. That's a major shift from the Obama era, when the federal government was firmly in their corner and asserted that the Wind River Reservation was never diminished by Congress.

But the tribes aren't completely alone as the case enters an important phase. The National Congress of American Indians and a group of prominent Indian law professors are hoping they can convince the 10th Circuit Court of Appeals to take another look at the dispute.

"At stake for American Indian nations in reservation diminishment cases is not just a legal framework, but tribal self-determination and self-governance—essential cornerstones of tribal sovereignty," attorneys for NCAI, the largest inter-tribal organization, wrote in a brief in support of a rehearing. "The hallmark of self-governance is that tribes exercise their own governmental functions, including criminal justice and law enforcement, civil and regulatory authority, and historical and cultural preservation."

The Trump administration could still pursue further appeals if the rehearing isn't granted. But the absence of the EPA at such a critical juncture speaks volumes and it indicates Administrator Scott Pruitt might back away from the underlying issue -- whether a border community known as Riverton remains a part of the reservation and whether the tribes can exercise jurisdiction there.

“This case has serious ramifications not only for the Eastern Shoshone and the Northern Arapaho Tribe but for Indian tribes across the country,” Eastern Shoshone Chairman Clinton Wagon said when the case came up during NCAI's mid-year session in June.

At that point, Pruitt had not yet decided whether to seek a rehearing. On March 13 -- just two weeks after he was confirmed to his Cabinet-level post despite his anti-sovereignty past -- he asked for more time to coordinate with the rest of the Trump team.

"The requested extension will ensure that a fully considered and coordinated determination can be made as to whether the United States will seek rehearing," attorneys from the Department of Justice wrote. "The additional time is especially necessary here due to the change in administrations."

The 10th Circuit quickly granted the request but the 45-day delay apparently wasn't enough. On May 1 -- more than two months after Pruitt took office -- government attorneys requested another one.

"In particular, due to the change in administrations, it took longer than we had originally anticipated to obtain the necessary formal recommendations from the relevant agencies," the motion stated.

Again, the 10th Circuit approved the request, giving the new administration until July 10 to decide whether to seek a rehearing. But as the deadline approached, both tribes saw the writing on the wall and brought in some legal heavy-hitters to press their case without the United States, as their trustee, on their side.

On July 10, Ken Salazar, a former U.S. Senator who served as Secretary of the Interior under former president Barack Obama, appeared on behalf of the Eastern Shoshone Tribe. During his tenure, the Department of the Interior issued a legal opinion which said Wind River had not been diminished.

That wasn't the tribe's only big hire -- Seth Waxman, a former Clinton administration official, also came on board. He served as Solicitor General of the United States, a key position within the Department of Justice that coordinates litigation before the U.S. Supreme Court, where the case may eventually end up.

Not to be outdone, the Northern Arapaho Tribe brought in Paul Clement on July 10. He's also a former Solicitor General, having served under Republican former president George W. Bush.

The two tribes and their star-studded legal teams are now waiting for the state of Wyoming to respond to their rehearing request. A brief is due at the end of this month, according to the 10th Circuit's docket.

State governments are “always attacking tribal sovereignty,” Chairman Wagon said back in June. “As Indian tribes, we must come together and unite,” he added.

Reservation diminishment cases are extremely fact intensive and they can go either way, depending on how a court views the historical evidence. In the case of Wind River, only two of three judges concluded that Riverton was removed from tribal jurisdiction by an act of Congress in 1906.

A larger set of judges might come to a different conclusion and that's what the tribes are banking on with their requests. But even if they don't succeed, the presence of Waxman and Clement show that the tribes are ready to go to the Supreme Court if necessary.

Just last year, the court issued a unanimous 8-0 decision in Nebraska v. Parker, a diminishment case involving the Omaha Tribe. More significantly, the justices reaffirmed the criteria used to determine whether a reservation has been changed by Congress.

"The Supreme Court has admonished that courts cannot 'remake history' in reservation boundary challenges, but the majority’s decision raises the specter of new challenges to reservation boundaries nationwide because of its less rigorous approach to interpreting statutes enacted to benefit Indians," NCAI wrote in its brief, referring to the 2-1 decision issued by the 10th Circuit in February.

And just week, Parker reappeared in yet another significant dispute. By a unanimous 3-0 vote, the 10th Circuit determined that Congress never "disestablished" the reservation of the Muscogee (Creek) Nation.

After being forced out of their homelands in the southeastern part of the U.S., the tribe ended up in Oklahoma, which happens to be Administrator Pruitt's home state. That's where Pruitt, as the state's attorney general, repeatedly tried to diminish the sovereign authority of tribes in a number of court cases.

He even signed onto a brief in the Wind River case, urging the 10th Circuit not to defer to the EPA's favorable determination for the Eastern Shoshone Tribe and the Northern Arapaho Tribe. The court did just that, although it claimed to be doing so based on Supreme Court precedents.

Pruitt's ties to the case don't end there, however. Oklahoma is the only place where tribes aren't allowed to exercise their sovereignty under the Clean Water Act -- a law administered by the EPA.

That's because Sen. Jim Inhofe (R-Oklahoma), whom Pruitt has described as a mentor, wrote a provision that prevents the EPA from granting any tribe's treatment as a state, or TAS, application in Oklahoma unless the state agrees.

The connection is noteworthy because the Eastern Shoshone Tribe and the Northern Arapaho Tribe are seeking to exercise their authority under the Clean Air Act -- another law administered by the EPA. Their TAS applications are opposed by Wyoming and industry interests in the state.

According to The New York Times, Pruitt's picks for deputy administrator, chief of staff, and deputy chief of staff are all former staffers to Sen. Inhofe, who wrote the anti-sovereignty rider back in 2005 without consulting tribes in Oklahoma or holding a public hearing about it.

Relevant Documents:
Eastern Shoshone Tribe's Petition for Rehearing | Nothern Arapaho Tribe's Petition for Rehearing

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

Trump nominee for key appeals court seen as favorable to tribal interests (June 16, 2017)
Wyoming tribes lose major ruling in reservation boundary case (February 22, 2017)
Tribal sovereignty foe in charge of nation's environmental agenda (February 20, 2017)
Supreme Court ruling emboldens tribes in another boundary case (March 25, 2016)