State contests reservation boundary for EPA air quality ruling

— January 7, 2014
by Ron Feemster

The Wyoming Attorney General petitioned the Environmental Protection Agency on Monday to stop implementing a ruling that gives the Eastern Shoshone and Northern Arapaho tribes new rights related to air quality on and near the Wind River Indian Reservation.

But the controversy between the state and the tribes is hardly about air. The core conflict grows out of a 108-year-old dispute about land and law.

The old dispute was given new life when the EPA ruled in favor of the tribes’ application to be treated as a state under the Clean Air Act. That ruling gives the tribe the right, among others, to receive automatic notification of any air quality permit applied for within 50 miles of reservation boundaries.

But in doing so, EPA also stated what it regards as the boundaries of the reservation. Relying on a 2011 finding by the Interior Department, the EPA ruled last month that the 1905 Act, which opened Riverton and as many as one million more acres to homesteading by non-Indians, did not diminish the reservation.

In other words, the ruling holds that land that the state, Fremont County and the city of Riverton consider to be under local jurisdiction is, in fact, Indian Country. And as part of the Wind River Indian Reservation, the city and surrounding area could be subject to federal policing, among other laws.

The state announced that it was asking EPA for a stay of the ruling on Monday as Attorney General Peter K. Michael appeared at a hearing of the Select Committee on Tribal Relations in Fort Washakie.

In the meeting room of the tribes’ Joint Business Council, which is hung with reservation maps showing the 1868 treaty boundaries diminished only by sales to Lander and Thermopolis, Michael presented a case that the new interpretation of the 1905 Act moved ahead too fast.

“The EPA knows that Wyoming has not treated these lands as Indian Country for a long time,” Michael told the committee. “They were frank with us about that. Our request for a stay is to retain the status quo in the area, which involves lots of things. It involves criminal jurisdiction. It involves civil jurisdiction. It involves the city of Riverton, how it operates. I would expect that this is something the EPA will consider.”

In the 24-page letter to EPA administrators in Washington and Denver, Attorney General Peter K. Michael wrote, “The legal opinion offered in support of EPA’s decision presents a selective history of the Wind River Indian Reservation more akin to advocacy for a predetermined outcome than to the objective analysis required for this complicated issue.”

Gesturing at the maps on the wall, Eastern Shoshone chairman Darwin St. Clair, Jr. noted that the reservation boundaries were set by a treaty with the federal government in 1868.

“Wyoming became a state in 1890,” St. Clair said. “Archaeological research shows that we have been in this area for 4,000 years.”

The core of the state’s argument is that EPA ignores legal precedents since 1905 that have already established the boundaries of the reservation.

“EPA used incomplete facts and faulty legal conclusions when making its decision to change existing law and alter the boundary of the State and the Wind River Reservation,” Gov. Matt Mead said in a statement.

The EPA ruling has raised hackles among non-Indian residents of Riverton since it was announced Dec. 9.

“The city staff gets calls from people suggesting that they don’t have to pay taxes because this is Indian Country,” Ron Warpness, mayor of Riverton, told the committee. The Riverton police worry about their authority to enforce the law, while Natives call the mayor’s office to say that next year they are “taking over Riverton,” Warpness said.

We have this kind of angst and anxiety on both sides,” said Warpness, 72, who has lived in Riverton all his life. “It’s not healthy.”

Meanwhile, leaders of the Northern Arapaho tribe issued statements taking issue with the state’s letter to EPA.

“The petition is full of inaccurate statements,” said Darrell O’Neal, chairman of the Northern Arapaho.  “The State’s petition completely ignores the doctrine of concurrent jurisdiction.  It’s totally inaccurate to suggest that restaurant food will become unsafe or that people in jail will go free as a result of the Federal Government’s TAS decision.”

Dean Goggles, a member of the tribal business council said, “We are disappointed with Wyoming’s petition. We have made every effort to cooperate with the state.  Instead of cooperating, the state is resorting to scare tactics.  The citizens of the Wyoming deserve better. This isn’t the 1800’s.”

The state has said it will petition for a review of the case by the 10th Circuit Court of Appeals. The state has until Feb. 18 to file the petition.

— Ron Feemster covers the Wind River Indian Reservation for WyoFile in addition to his duties as a general reporter. Feemster was a Visiting Professor of Journalism at the Indian Institute of Journalism & New Media in Bangalore, India, and previously taught journalism at Northwest College in Powell. He has reported for The New York Times, Associated Press, Newsday, NPR and others. Contact Ron at ron@wyofile.com or find him on Twitter@feemsternews.

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