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Attorney: Rez border issues not unique
Mar 25, 2014 - By Alejandra Silva, Staff Writer
The Riverton City Council invited attorney John Schumacher to a work session this month to talk about an Environmental Protection Agency ruling impacting the boundaries of the Wind River Indian Reservation.
The EPA in December granted Treatment as a State status to the Northern Arapaho and Eastern Shoshone tribes as part of the federal Clean Air Act. The decision attempts to redefine the boundaries of the reservation to include Riverton, claiming the reservation was not "diminished" by the 1905 Congressional Act that opened land, including the city of Riverton, to homesteading.
That opinion runs counter to several other legal opinions, including a Wyoming Supreme Court decision which determined that the 1905 act ceded the land from the reservation for the townsite.
The state has requested a stay of the EPA decision and has appealed the ruling in the federal Tenth Circuit Court. Tribal leaders also requested a partial stay to allow time for local governments to discuss jurisdictional implications of the EPA ruling. The EPA granted the tribal request last month.
Schumacher said he was not at the meeting to provide legal advice to the city council. Instead, he discussed issues that could help address rumors about the implications of the EPA decision.
Schumacher has represented clients before federal, state and tribal agencies and worked as an attorney for the Eastern Shoshone tribe for nearly 20 years.
His practice faces questions surrounding jurisdiction, business development, taxes, the environment, oil and gas development, agricultural law, zoning, and family and probate law.
Schumacher clarified in the beginning of his presentation that he was not taking a side in the EPA ruling and was not representing anyone.
"If you want to know the position of the tribes or the county or somebody, you've got to go ask those folks," Schumacher said.
He first listed several other tribes and states that have dealt with reservation boundaries in Supreme and District courts and their outcomes.
"The city of Riverton is not in a unique position," he said. "Whatever you choose to do, you're not writing on a blank slate."
He added that reservation boundaries have been litigated several times in Wyoming involving the state, tribes, county and cities. Water rights were argued in the federal district court as early as 1912, he said, followed by oil and gas issues in 1969 with the Oil and Gas Commission.
In 1975, reservation boundaries were addressed again in relation to school districts and liquor rights. Tribal hunting and road access issues later surfaced in 1980.
Schumacher said agreements often help resolve the issues among governments and agencies. When leaders get together and discuss a functional solution, he said, they may realize they all have the same interests.
Schumacher gave his general interpretations of how Indian law applies to non-tribal residents of a reservation. He said living on a reservation does not allow tribes to take ownership of someone's fee land, and the same goes for the city.
He gave examples of how tribes have worked with non- Indians on land ownership issues, and how some problems were created when one of the parties didn't abide by the regulations or refused to work with the other.
"Things can get sorted out if people want to be reasonable," he said. "That's a choice that everybody has."
He went on to address the fact that many people think American Indians don't pay taxes.
"There are some tax benefits that they have, but they pay most of the same taxes that everybody in this room pays," Schumacher said.
Under federal law, American Indians don't have to pay an income tax on income they earn on their tribal allotment, he said, and if they're raising cattle on that land then they don't have to pay income taxes on the sale of those animals. But if they raise cattle on leased land, then they pay those income taxes. He said that agreement came about after tribes agreed to give up land in Utah, Wyoming and Colorado.
American Indians also pay federal income tax on wages, Medicare, Social Security and sales taxes when they are off of the reservation.
"They don't pay state taxes for activities on the reservation, because that's their sovereign territory," Schumacher said.
He added that a non-Indian would pay the state taxes on the reservation. Agreements with reservation businesses now allow the state to survey what customers are tribal members and which are not.
Based on those findings the tribes pay into the state the percentage determined to be non-American Indian, Schumacher said.
The state does receive payments from the federal government or payments in lieu of taxes for non-taxable land on the reservation. He said taxes paid by non-American Indians on the reservation are no different to the taxes they pay off the reservation.
He also said tribal members could tax non-Indians, through severance or cigarette taxes, or contractor employment taxes such as TERO.
Criminal jurisdiction can be complicated,"Schumacher said, because each case depends on who committed the crime, where it happened, who was the victim, and what crime was committed in order to assign it to the appropriate court.
In certain cases, federal law applies. State law applies in others.
Federal crimes often borrow state law, and federal jurisdiction is used on non-American Indians who act against American Indians, unless the crime was handled in tribal court.
If tribal members are convicted and sentenced, then it would be a federal prosecution, Schumacher said. State law would apply in crimes involving only non-Indians.
Most common issues are which law enforcement makes the arrest or prosecutes in the case. He said reservations also enter into cross deputization agreements. He explained that the Bureau of Indian Affairs is authorized to be state law enforcement officers, and state officers are authorized under tribal law. Tribal law officers are also authorized under tribal and state law.
"Everybody's authorized to arrest," Schumacher told the council. "When an officer goes out to a call, the people need to listen to the officer."
Whether tribal officers are qualified to enforce state law has been another issue to emerge. Schumacher said tribal officers often are more knowledgeable than others because they've been trained to enforce federal and state law.