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No land stolen in EPA ruling, tribe says

Feb 12, 2014 - By Katie Roenigk Staff Writer

According to Northern Arapaho lawyers, Indian Country includes all lands within a reservation boundary, regardless of who owns specific parcels.

Various news reports have been circulating nationwide regarding the recent decision by the Environmental Protection Agency to redefine the boundaries of the Wind River Indian Reservation.

In many stories reporting on the decision, writers claim the EPA and the Northern Arapaho and Eastern Shoshone tribes effectively stole land from Wyoming through the ruling. But a letter from the Northern Arapaho Tribe's representatives at the Lander law firm Baldwin, Crocker and Rudd rejects that claim.

According to the attorneys, Indian Country includes all lands within a reservation boundary, regardless of whether specific parcels are owned by American Indians. In addition, lands that are designated as Indian Country are not necessarily owned by the tribes involved.

"Governments may own lands within their boundaries, but governmental authority is not co-extensive with land ownership," the lawyers said. "If the two concepts were the same, governments could not regulate activities on lands they did not own."

The EPA in December ruled that a Congressional Act of 1905 opening tribal lands -- including the city of Riverton -- to homesteading did not diminish the reservation boundary. The decision was made as part of the tribes' request for Treatment as a State through the federal Clean Air Act.

The lawyers' letter analyzes the Congressional Act of 1905, which they say allowed the United States to sell tribally owned land to people who were not tribal members. Proceeds of the sale were held by the United States for the benefit of the tribes, according to the lawyers. Later, the right of the United States to sell the lands was rescinded, and full beneficial ownership was restored to the tribes.

"Reservation boundaries were left intact," the lawyers wrote.

The tribes have worked with the state for years to administer fuel and cigarette taxes and child protective services on the reservation, the letter continues, and state, federal and tribal wildlife agencies are able to exercise jurisdiction on the reservation and in Riverton under principles of concurrent jurisdiction.

"Land ownership does not govern jurisdiction," the letter states. "The state profoundly misunderstands the difference between land ownership and territorial authority."

Wyoming has submitted more than 22,000 pages of exhibits and affidavits in support of its Jan. 6 petition for a stay of the EPA decision. Many of the affidavits from agency directors outlined concerns about jurisdictional issues at restaurants, medical centers and highways on the redefined reservation.

Tribal lawyers called the statements "unfounded and deceptive."

"The question of whether tribal, state or federal governments has jurisdiction in any specific case depends on the status of the party involved (as an Indian or non Indian), what conduct is at issue, and which government is attempting to regulate the conduct involved," the lawyers wrote. "Non-Indians are not generally subject to tribal authority or regulation."

They cited a 2008 Supreme Court decision that ruled tribes do not generally have civil jurisdiction over non-Indians within reservation boundaries. An exception would be given if the non-Indian consents to tribal regulation, or if the suspect's conduct "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

Commercial transactions between non-Indians are not invalidated simply because the transactions occur in Indian Country, the lawyers continued, and other applicable state laws and regulations also are valid for non-Indians on the reservation. Uniform commercial code filings would remain intact, for example, and regulation of non-Indians and non-Indian establishments would continue through Wyoming's departments.

Criminals

Tribal lawyers dispute the validity of other state claims in its petition. The representatives said the state made a "dangerously misleading" assertion when it speculated that certain criminals could be set free as a result of the EPA decision.

Steve Lindly, deputy director for the Wyoming Department of Corrections, said the EPA ruling could "substantially" affect his agency's operations in Fremont County. For example, he said the state's previous convictions of criminals could be considered invalid in disputed areas like the city of Riverton.

"The question of the state court's jurisdiction to have convicted these individuals puts in question WDOC's authority to incarcerate these individuals in any of WDOC's facilities," he said. "This same question applies to individuals who have been placed on probation by the state courts."

He also referred to the issue of "re-taking" any escapees from the Wyoming Honor Farm north of Riverton.

"(They) would escape onto the disputed lands," Lindly wrote.

Patrick M. Anderson, executive director of the Wyoming Board of Parole, called the reservation "a sanctuary for parole violators." He said tribal authorities in the past have prevented the execution of warrants issued by his agency in Indian country.

"As the EPA's determination of the boundaries of the reservation greatly increases (the reservation's) size, this difficulty can be expected in a much greater area," Anderson said.

Considering the historical difficulties with supervision and enforcement of parolees in the area, Anderson said they would have to re-evaluate the "appropriate terms and conditions" of parole for people in the expanded parts of the reservation.

In response to the state's assertions, tribal lawyers said convictions of criminals are not ordinarily overturned as a result of changes in jurisdiction. They cited the 1996 case of U.S. v. Cuch, in which the court declined to apply its ruling regarding reservation boundaries in Utah to convicted criminals. "Principles of finality and fairness dictate such a result, and no controlling authority mandates retroactivity," according to the case.

The attorneys for the Northern Arapaho Tribe said the "hair-raising insinuation" by Wyoming that convicted criminals could be released without parole based on the EPA ruling "is simply not true."