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Tribes agree to end competing suits on joint government

Sep 13, 2017 By Daniel Bendtsen, Staff Writer

The business councils of the Eastern Shoshone and Northern Arapaho tribes plan to drop their dueling lawsuits against the federal government as they work toward further cooperation through the newly formed Wind River Inter-Tribal Council.

In their lawsuits, each tribe had sought to gain more power over the governance of the Wind River Indian Reservation after the 2014 demise of the Joint Business Council, through which the tribes had managed programs since the 1930s.

Separate programs

Federal district court judge Brian Morris had dismissed the bulk of the Northern Arapaho claims this year, saying the Bureau of Indian Affairs had not erred in denying that tribe's request for funding for a separate tribal court, fish and game department, and tribal water engineer.

Morris had ruled that most of the functions of independent Arapaho programs would have require approval from the Shoshones, because the programs' functions would affect the land interests of all of the reservation's tribal members.

Even if the Arapahos were entitled to run their own departments, Morris said it would be impossible for the BIA to provide the requested funding, because the agency only has a finite amount of money to distribute for the reservation's programs.

If the BIA split the funding and gave half to the Arapahos, Morris said the BIA would be unable to run separate programs for the Shoshones.

The Arapahos appealed Morris's decision in August. If the Arapahos were to win the appeal, both tribes could be entitled to, if they chose, run separate programs. A win for the Arapahos also could force the BIA to increase funding for shared programs, providing an amount that would allow both tribes to run separate programs.

Injunction

The one victory the Northern Arapaho Tribe has earned came from a preliminary injunction by Morris last October.

He ordered the BIA to "refrain from approving 638 contracts for multi-tribal, shared services without the approval, via tribal government resolution, of both the Northern Arapaho Tribe and the Eastern Shoshone Tribe."

The United States appealed that injunction, arguing that it is unnecessary because the BIA has already committed to not issue any more contracts to one tribe to act on behalf of the other.

Federal attorneys have argued that, if anything, the injunction's wording of "multi-tribal, shared services" is so vague that the injunction, "coupled with the threat of contempt," will induce BIA officials to err on the side of treating programs as "shared services."

"Given the tribes' ongoing unwillingness to cooperate in administering such programs, the end result will be more rejections of proposals," the attorneys argued.

Oral arguments are set to begin Oct. 3. No deal has been secured to get the United States to drop its appeal.

The potential stakes of the Shoshone lawsuit are far more minimal.

Attorneys Majel Russell and Mark Echo Hawk had asked Morris to force the BIA to issue federal contracts to the "EST on behalf of the Joint Business Council." However, Morris has already banned such contracts.

The tribe also asked Morris to force the BIA to "recognize and facilitate the function of the JBC," despite the fact that the judge had already ruled the JBC to be defunct.

Within the Shoshone lawsuit, there does remain one outstanding legal question: If the BIA were to divide funding for both tribes, would they each get an equal sum, or would funding be allocated according to population?

The Shoshones had asked for a declaratory judgment that would say that funding for self-determination contracts should not "depend solely on relative tribal member populations" and that "NAT is not entitled to allocations of federal funding ... based solely on relative tribal member populations."

In the Northern Arapaho's request for self-determination contracts, that tribe asked to receive "at least 70 percent" of the funding that the BIA had previously allocated to JBC programs.

Attorneys for the Shoshones had made a number of bold claims in their lawsuit, including that the 1968 "treaty between the United States and Eastern Band Shoshoni and Bannock," which first established the reservation for the exclusive control of the Shoshones, remains "the supreme law of the land" on the reservation.

Those claims were made despite two prominent U.S. Supreme Court cases in the 1930s that established the Northern Arapaho tribe as having an "equal and undivided interest" in the reservation.

Attorneys for the Shoshones acknowledged that fact in their legal complaint, but they also asserted that their tribe continues to have "sovereign territorial right to absolute and undisturbed use and occupation of (the) Wind River Reservation."

In Supreme Court cases, the Shoshones were compensated $1.6 million "for the taking of an undivided one-half interest in their tribal lands."

A pre-trial conference was held Aug. 28 in the Shoshone lawsuit.

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2017-09-22

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