Court wants state input on rehearing ask

Jul 18, 2017 From staff reports

The three judges who considered in February whether Riverton is on the Wind River Indian Reservation have directed the state and the Wyoming Farm Bureau Federation to file a response to a request for a rehearing from the Eastern Shoshone and Northern Arapaho tribes.

After the court ruled that Riverton is not on the reservation, the tribes asked for an en banc hearing, which would have all judges on the 10th Circuit weigh in on the case.

The three-judge panel originally asked for the parties to file their response by Aug. 2. However, the state and the Wyoming Farm Bureau Federation on Tuesday asked to push that deadline back to Aug. 31. In that request, attorneys said no parties oppose the delay.

Other tribes look to participate

The National Congress of American Indians is hoping to join the case as amici curiae, or "friends of the court." That group, which advocates for tribal governments and includes more than 250 member tribes, did not participate in the original arguments before the three-judge panel.

NCAI attorneys, in their brief, said the organization's participation is key because the 10th Circuit decision "relaxes" the Supreme Court guidelines on interpreting historic surplus lands acts.

"The relaxed standard would almost assuredly result in a new wave of challenges to reservation boundaries beyond Wind River, and in areas beyond environmental protection," attorney Daniel Gomez wrote. "For example, many reservation boundary challenges arise in the area of tribal law enforcement, where persons detained by tribal law enforcement officials challenge a reservation's boundary to avoid prosecution."

In his brief, Gomez said the 10th Circuit majority opinion erroneously placed "undue emphasis" on the word "cede" while ignoring other important factors of Supreme Court guidelines.

The decision by the majority, Gomez said, is especially glaring in light of courts' responsibility of ensuring "historical acts affecting Indians -- but to which the tribes had no real opportunity to influence -- is 'construed in the interest of the Indian."

Professors join call for appeal

A group of nine Indian law professors, who joined in the original case as amici curiae, also asked the court on Monday to allow them to write their own brief in support of a rehearing.

Bethany Berger, a law professor at the University of Connecticut, said in the Monday request that the professors have "considerable interest" to ensure "that federal Indian law decisions consistently reflect the distinctive history and rules of construction that apply in this field."

Some of the professors have helped write "Cohen's Handbook of Federal Indian Law" and have served on the presidentially-appointed U.S. Indian Law and Order Commission.

Berger said acceptance of the professors' brief is important because it contains different arguments for a rehearing than those the tribes have made; she also said that only attorneys for Fremont County and the city of Riverton have opposed the professors' participation.

In the brief, the professors stressed that all case law requires that Congressional intent to diminish a reservation must be clear. They agreed with dissenting 10th Circuit judge Carlos Lucero that his court's ruling set a "new low-water mark."

Berger emphasized this "clear intent rule" in her brief and argues the 1905 Act's lack of lump-sum payment -- or even a guarantee of sale -- makes it impossible to conclude Congress was definitive in its intent to shrink the reservation's boundaries.

"The 1905 Act expressly provides that the only 'consideration' for opening the lands to settlement in the Act was that the United States would try to sell them," she said. "The United States did not even promise that the lands would be sold. It stipulated that 'nothing in this agreement contained shall in any manner bind the United States to purchase any portion of the land herein described . . . or to guarantee to find purchasers for said land or any portion thereof.'"

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