Tribes file for rehearing in border dispute

Jul 11, 2017 From staff reports

The motion seeks a full 'en banc' hearing after just three of a possible 18 judges heard the original arguments.

The Eastern Shoshone and Northern Arapaho tribes both asked for a rehearing Monday in the ongoing lawsuit to determine whether Riverton and other areas north of the Wind River remain part of the Wind River Indian Reservation.

In their appeal, both tribes have hired heavy-hitting attorneys, including former top federal officials and Supreme Court clerks (see related story).

En banc

The tribes are asking for an en banc hearing, which would allow for all judges on the 10th Circuit to weigh in on the case. If the hearing were granted, as many as 18 judges could hear the case.

The February ruling against the tribes relied on a majority opinion from two judges -- both Republican appointees -- while most judges on the 10th Circuit were appointed by Democratic administrations.

Until recently, new U.S. Supreme Court Justice Neil Gorsuch sat on the 10th Circuit.

The original lawsuit, filed by the State of Wyoming in 2014, appealed a boundary determination from the Environmental Protection Agency.

However, both tribes later were added as defendants.

Attorneys for the EPA opted not to ask for a rehearing by the Monday deadline.

However, as a continuing party in the case, attorneys for the Department of Justice would be expected to continue participating if an en banc hearing is granted.

Even if an en banc hearing isn't granted, the tribes could appeal to the Supreme Court through a writ of certiori.

Gorsuch handled multiple Riverton cases -- including lawsuits from convicted baby-killer Andrew Yellowbear -- during his decade-long tenure on the 10th Circuit.

Need for rehearing

When the 10th Circuit ruled in favor of the state in February, it did so with a 2-1 vote.

The tribes have argued that internal conflict, along with the ruling's conflicts with rulings from other appellate courts, merits further judicial review.

The tribes also argued the consequential nature of the case in Fremont County, as well as the impact on similar boundary disputes, further necessitates a rehearing.

"(The 10th Circuit decision) infringes the sovereignty of the Eastern Shoshone and Northern Arapaho Tribes, hindering the tribes' power to tax, exercise criminal jurisdiction over tribal members, resolve child-welfare issues, and claim water rights," Waxman wrote in the Shoshone petition. "Finally, it has far-reaching implications because many other Indian statutes contain similar language,"

Waxman in particular argued that although the majority noted many conflicting precedents in passing, the judges down-played -- and sometimes ignored -- the relevance of certain case law.

"The panel's approach to many of these myriad pieces of contrary textual evidence was to dismiss each on the ground that it is insufficient by itself to preclude diminishment," Waxman said. "That 'divide-and-conquer' strategy ignores the Supreme Court's directive that surplus-land statutes be read as a whole."

Waxman said that a rehearing was also needed given the ambiguities around the case, noting a 1975 that in boundary disputes, "ambiguities are resolved to the benefit of the Indians."

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