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EPA says it has right to set rez border, but the intent is limited

Dec 16, 2013 - By Katie Roenigk, Staff Writer

Some federal officials disagree with Riverton leaders who say questions about the boundary of the Wind River Indian Reservation need to be resolved in court.

In a document released Dec. 6, administrators with the Environmental Protection Agency said the federal group is responsible for determining the reservation's boundaries as part of the Clean Air Act (CAA).

"Certain commenters appear to assert that EPA lacks authority to determine the reservation's boundaries and that questions regarding the boundary are reserved solely to courts," the document states. "EPA disagrees."

Years in the making

The Northern Arapaho and Eastern Shoshone tribes applied several years ago for Treatment as a State, or TAS, through the Clean Air Act. Last week, the EPA granted the tribes' request, defining the reservation's boundary as part of its decision.

Specifically, the EPA said that a 1905 Congressional Act, which opened certain reservation lands north of the Wind River to homesteading, did not "diminish" the boundaries of the reservation.

The land in question includes the City of Riverton.

The EPA opinion runs contrary to numerous federal court rulings which repeatedly have determined that Riverton is not part of the reservation.

'Ceded' land

Land for the original Riverton townsite was "ceded," or removed, from the reservation in 1905 and has been considered separate from the reservation since then -- until the unexpected EPA announcement last week. Other lands in the interior of the reservation have been sold to private parties through the years.

Officials from the City of Riverton, Fremont County government and Wyoming state government have challenged the EPA's interpretation.

Court challenge?

Gov. Matt Mead said the ruling will be contested in court, and State Sen. Eli Bebout of Riverton said the Wyoming Legislature will be asked to appropriate additional money to fund the legal battle. The Legislature convenes in February.

Agency officials said the TAS approval, including the boundary definition, became effective on Dec. 6, but a 60-day period associated with the approval sets a time frame for challenging the EPA's action, not for public comments. The EPA previously solicited and reviewed public comments on the tribes' application for TAS.

The officials also clarified that the boundary definition currently in question does not affect the land referred to as the "1953 Act area," which encompasses property from Morton to Boysen Reservoir including the town of Pavillion. Riverton is not located within the 1935 Act area.

Authority

The EPA document asserts that the agency is required to determine the boundaries of the reservation as part of the TAS request.

Local government officials expressed concern that the tribes would use this unprecedented federal opinion to press for further jurisdictional rights, particularly in Riverton.

Tribal officials, for example, last week immediately discussed "cross-deputizing" tribal police and Riverton police officers for law enforcement purposes in the city.

However, federal officials said their decision "does not affect the jurisdiction of federal courts to adjudicate issues properly raised for their consideration."

In addition, the decision does not give tribal leaders the authority to implement any CAA regulatory programs or to "otherwise implement tribal regulatory authority under the act.

"Several commenters raised concerns that EPA would approve a 50-mile buffer zone around the reservation in which the tribes would assert CAA regulatory authority.

"This function, however, does not entail the exercise of regulatory authority under the CAA. ... This provision provides eligible Indian tribes with certain notice and comment opportunities on nearby permitting actions that may affect their air quality," the document states.

Permitting authorities would not be required to modify their actions in response to comments from the tribes, but "(the tribes) would not exercise any regulatory authority under the act, nor would they implement any CAA function or program outside the exterior boundaries of the reservation," the document states.

Analysis

The EPA called upon the U.S. Department of the Interior to analyze questions about the reservation boundary and whether the reservation was diminished by the 1905 Congressional Act. A solicitor with the DOI provided a written opinion in October 2011 concluding that the act did not "diminish" the reservation.

In his legal analysis, the solicitor said the 1905 Act does not include language that would "convey" or "surrender" "forever and absolutely" the tribes' right, title and interest in the land in question.

"The 1905 Act does not include express language to 'change the southern limit of said reservation' or to establish a new 'southern line of the Shoshone reservation,'" the analysis continues. "Rather, the 1905 Act refers to the lands at issue as 'embraced within the said reservation.'"

The Act also doesn't include language designating the opened lands as "public domain," nor does it express a clear intent to change the boundary of the reservation.

"The grant of right, title and interest to the United States was necessary for the U.S. to be able to transfer clear title to prospective homesteaders," the document states. "However, to achieve the purpose of opening the lands to settlement, it was not necessary, nor did the express language of the Act indicate intent, to alter the exterior boundaries of the reservation."

In a section discussing additional judicial references, the analysis includes arguments in support of the position that the 1905 Act diminished the exterior boundaries of the reservation. In the 1930s, several cases addressed a suit filed by the Eastern Shoshone Tribe for damages arising from the government's act of settling the Northern Arapaho Tribe on the Wind River Indian Reservation. The U.S. Court of Claims and the Supreme Court, in granting the parties' cross-petitions for certiorari at the time, referred to the area not opened to homesteading by the 1905 Act as the "diminished reservation."

The court of claims decision also included a map depicting the area north of the Big Wind River as "ceded by agreement of April 21, 1904," and the unopened area as the "present Wind River or Shoshone Indian Reservation."