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Tribes vow to appeal ruling on boundary

Feb 23, 2017 By Daniel Bendtsen, Staff Writer

The Eastern Shoshone and Northern Arapaho tribes plan to appeal Wednesday's ruling from the 10th Circuit Court of Appeals, which determined that a 1905 act of Congress diminished the boundary of the Wind River Indian Reservation -- meaning Riverton is not part of the reservation.

The 2-1 decision overturned a 2013 administrative ruling by the Environmental Protection Agency that Riverton and other areas north of the Wind River lie within the reservation's boundaries.

In separate statements, both tribes said they'll ask for an "en banc" hearing, which would give all 12 judges in the 10th Circuit a chance to weigh in on the case. Three judges heard the initial case.

The Shoshone Business Council said the majority opinion from Judges Paul Kelly and Timothy Tymkovich was "deeply flawed."

The Northern Arapaho Business Council also criticized the two judges for making "new law by describing the payment to the tribes as a 'hybrid' system that included specific amounts as general aid."

The 1905 act does not provide for a single, lump-sum payment, but the U.S. instead acted as a trustee and sold off sections of land and returned unsold land to the tribes.

Ruling conforms to precedent?

If the full panel of the 10th Circuit hears the case, its decision likely would hinge on whether Kelly and Tymkovich's analysis complies with the U.S. Supreme Court guidelines on determining reservation diminishment.

The court said in 1984 that all claims of diminishment are judged by three aspects: the statutory language written by Congress, the historical circumstances of the transaction, and, to a lesser degree, "the subsequent treatment of the area in question and the pattern of settlement there."

Unlike other land sales of the reservation in the 19th century, which included language such as "cede, convey, transfer, relinquish, and surrender forever," the language in the Riverton sale was less absolute.

"Our task is not to divine why Congress may have chosen certain synonyms over others in this particular Act," Tymkovich wrote in the majority opinion. "We believe Congress's use of the word 'cede' can only mean one thing--a diminished reservation."

The two judges also said that both the U.S. and tribes at the time understood the sale would permanent cede the region.

Dissent

The EPA, the Department of the Interior Solicitor, the tribes, and now dissenting judge Carlos Lucero have now all argued that Congress's intent was not clear.

The Supreme Court has also said that in any ambiguous cases, "statutes are to be construed liberally in favor of the Indians."

The 10th Circuit has also said the intent to diminish "must be clearly expressed" and not "lightly inferred."

"The majority opinion creates a new low-water mark in diminishment jurisprudence," Lucero said.

The 1984 Supreme Court case that created the three-pronged test for diminishment also concluded that if reservation lands are opened up for settlement by non-Indians, then reservation boundaries are not inherently diminished.

Looking toward the future

Lee Spoonhunter, co-chairman of the Northern Arapaho Business Council, said he was confident the majority opinion eventually would be overturned. NABC chairman Roy Brown told Gov. Matt Mead in a Wednesday phone call that "the tribe will continue to work with the State of Wyoming on improving the relationship between the state and the tribe."

In a statement Wednesday, Mead said the lawsuit was "never about the tribes' ability to manage air quality on the reservation." He the state will work with the tribes in their development of environmental programs.

"As I said from the beginning, the EPA's decision went against 100 years of history and was one that should not come from a regulatory agency," Mead said. "(The) decision provides certainty to the people affected by the EPA overstepping its authority."

The SBC said it would continue "existing partnerships" with the state, but "will continue to fight for the last vestige of our homeland."

The tribes have 14 days to appeal the decision, while the federal government has 45 days to ask for an en banc hearing and 90 days to ask for a writ of certiorari, which could begin a review by the U.S. Supreme Court.

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