Tribes take Wind River Reservation boundary case to Supreme Court

Thursday, February 22, 2018

After being abandoned by the Trump administration, the Eastern Shoshone Tribe and the Northern Arapaho Tribe are taking their homelands case to the nation's highest court.

The tribes will be filing a petition with the U.S. Supreme Court this week, The Riverton Ranger reports. They argue that the Wind River Reservation in Wyoming was not diminished by an act of Congress.

"No Indian tribe should be deprived of its sovereign territory without this court's review, and certainly not under novel reasoning incompatible with the precedents of this court and other courts of appeals," the forthcoming brief reads, The Ranger reports.

The petition attacks a February 2017 ruling from the 10th Circuit Court of Appeals which held that the reservation was in fact diminished by Congress. The split 2 to 1 decision was based on a reading of the 1905 law at issue in the case, as well as historical and legal evidence affecting the reservation

The tribes subsequently asked the 10th Circuit to rehear the case. That's when the Environmental Protection Agency, which had firmly been in their corner during the Obama era, abandoned them and refused to take part in the proceeding.

The 10th Circuit later denied the request, setting the stage for the appeal to the Supreme Court. In January tribes received permission to submit a petition by March 7, according to Docket No. 17A751.

The case arose after the EPA approved applications submitted by the tribes to regulate air quality on the reservation. The state of Wyoming challenged the approval because it covered a disputed town known as Riverton.

The tribes have always contended that Riverton is a part of the reservation. The state believes it was removed by the 1905 federal law.

The Supreme Court last took up a reservation boundary case in 2016. By a vote of 8 to 0, the justices in Nebraska v. Parker rejected an attempt by the state of Nebraska diminish the homelands of the Omaha Tribe.

But Justice Clarence Thomas, writing for the majority, noted that boundary cases are incredibly fact-dependent. So the decision, while it was a victory for the Omaha Tribe, did not immediately benefit the Eastern Shoshone Tribe and the Northern Arapaho Tribe.

The Supreme Court typically accepts just a small number of petitions presented to the justices. They almost always take a pass when a tribe was the losing party in a dispute, according to a study by Indian law professor Matthew Fletcher.

Read More on the Story:
Tribes ready case on reservation border issue (The Riverton Ranger Via Wyoming News Exchange February 21, 2018)

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