A U.S. Environmental Protection Agency ruling that declared Riverton part of the Wind River Indian Reservation for the purposes of some regulations has state officials flip flopping, according to the Northern Arapaho Business Council.
The Environmental Protection Agency’s boundary determination was publicized early last month and clarifies the effect of a 1905 federal land act that has been a point of contention between tribal and non-tribal members for decades.
State, county and local officials have lampooned the environmental regulators for making a decision about Indian Country boundaries. They claim the ruling will be a nightmare for local courts, law enforcement and tax collectors. Tribal members claim the ruling is a long-overdue recognition and something the state once supported.
The shift in rhetoric is misleading and could increase strife between tribal and non-tribal members, the Northern Arapaho Business Council wrote in a letter received by Gov. Matt Mead on Monday.
“Now that the DOI and EPA have issued their determinations, state officials have changed their tune, claiming to be outraged by the decision and suggesting that the federal government has no say in such matters,” the business council wrote in the letter.
Mead is reviewing the Northern Arapaho Business Council’s letter and will reply directly to the Northern Arapaho and Eastern Shoshone, said Renny MacKay, spokesman for Mead.
Mead vowed to not enforce the EPA rulings and has asked Wyoming Attorney General Peter Michael to appeal the decision on behalf of the state. Pundits in Wyoming expect a legal battle that will go all the way to the U.S. Supreme Court. Mead wrote a letter to the EPA and tribes on December 19, criticizing the process by which the regulatory agency came to its conclusion.
“Far reaching decisions that change boundaries cannot come from a regulatory agency,” Mead wrote to Darrell O’Neal Sr., chairman of the Northern Arapaho Business Council.
Mead’s ire came as a surprise to tribal members after comments made in court by the state’s legal counsel in 2009. The boundary issue arose in a tax case between the Northern Arapaho and the state. The Wyoming attorney general’s office urged the court to drop the case because the implications of ruling on a boundary without the federal government and Eastern Shoshone being involved in the case.
The boundary question isn’t an issue-specific proposition and cannot be answered differently in different cases, said Deputy Attorney General Marty Hardsocg in 2009.
“We don’t have a fully binding decision,” Hardsocg said at the time. “We do in the state, but the state is then put in a position of having to rely on the federal government’s view for its direction.”
Hardsocg went on to say that rulings by the state Supreme Court have “secondary authority” over anything by the federal government.
“At the end of the day state lawyers acknowledge that this determination is a federal question and must be determined to a final point in the federal courts,” said Mark Howell, a Washington, D.C., lobbyist who represents the Northern Arapaho. “That’s what this EPA decision will allow all parties to do.”
There have been at least two cases heard in state courts about the boundary in the past 30 years.
A case heard in courts throughout the first half of the 1980s discussed water rights in the central region of the state and on the reservation. The state Supreme Court concluded that Riverton was on the reservation.
A 2008 murder case involving tribal members left the Wyoming Supreme Court to determine that Riverton was not part of the reservation. State and local officials are hinging on the 2008 ruling as their linchpin for ensuring Riverton is not recognized as being on the reservation.
The cases heard in the state courts don’t set solid precedents because they don’t directly address the boundary issues and don’t involve both tribes, the state and federal government all at once, Howell said.
The Northern Arapaho and Eastern Shoshone used a provision in the Clean Air Act that allows tribes to apply as states to receive more money to monitor air quality on their land.
The application forced the EPA to determine the boundaries of the reservation and ultimately led the EPA, Interior Department and Justice Department to proclaim that Riverton was a part of the reservation.