President Barack Obama’s Environmental Protection Agency distinguished itself from the rest of his administration for its hostility to the rule of law, nowhere more outrageously than with a massive land grab in Wyoming. Happily for legal precedent, rural Wyomingites, and new EPA Administrator Scott Pruitt, a recent ruling by the U.S. Court of Appeals for the 10th Circuit in Denver overturned the EPA edict that ignored nearly 115 years of history.
In 2013, pursuant to the Clean Air Act, the EPA granted the Northern Arapaho and Eastern Shoshone Tribes authority to regulate air quality programs as to the Wind River Indian Reservation in west-central Wyoming. Unfortunately, the EPA acceded to the tribes’ demand that their jurisdiction encompassed lands long known as outside the Reservation, including the town of Riverton (population 11,000).
The EPA had help: it acknowledged “input from other federal agencies,” and that its “determination is consistent with a 2011 Opinion of the Solicitor of the U.S. Department of the Interior.” Interior has been home to the Indian Bureau since 1824 and the 500-pound gorilla on these issues since 1873 when Congress transferred territorial responsibilities for the American West there from the State Department.
The reservation was established in 1868, but in 1904 the tribes entered into an agreement with the federal government to cede 1.48 million acres of land in exchange for per capita payments to tribal members and capital improvement projects within the reservation. In 1905, Congress ratified the agreement, declared the lands were “ceded, granted, relinquished, and conveyed” to the United States, and referenced the new reservation as “the diminished reserve.”
In 1906, the ceded lands were opened for settlement by presidential proclamation: the land was sold to non-Native Americans, including land that became Riverton. In 1939, some of the unsold ceded lands were restored to the reservation, but much of the land, including all land within Riverton city limits, was not.
Over the decades, Congress, the Supreme Court, and the Wyoming Supreme Court wrote of “lands formerly embraced in the [Reservation],” of the “diminished reservation,” and of lands that were “ceded, granted, and relinquished.” Challenges by tribal members of their convictions in state court for crimes committed in Riverton were rejected, on one occasion with amicus support for Wyoming from the United States.
Unfortunately, the solicitor made an unmitigated hash of this undisputed history.
Sadly, her opinion slavishly tracked the Tribes’ 2008 EPA application in which they cherry-picked bits of congressional hearings and self-serving tribal documents but ignored federal court rulings, the 1904 agreement, the 1905 Act, and their precise and binding language. Most egregious is the solicitor’s failure to address a 1998 ruling of the U.S. Supreme Court on another tribe’s similar assertion. A unanimous court, in an opinion by Justice Sandra Day O’Connor, held Congress set forth “the most certain statutory language, evincing [its] intent to diminish the [Reservation] by providing for total cession and fixed compensation.”
The State of Wyoming quickly sued, as did the Wyoming Farm Bureau Federation—represented by Mountain States Legal Foundation—given its members’ fears they would be subject to tribal civil and criminal jurisdiction. Such fears seemed justified after Riverton Memorial Hospital—a non-Indian entity, organized under the laws of the State of Delaware—was hauled into tribal court for medical malpractice.
In a 2-1 ruling, Judge Timothy M. Tymkovich held, “This case requires us to determine whether Congress diminished the boundaries of the Wind River Reservation in Wyoming in 1905. We find that it did.”
In doing so, he rejected attempts to read into Congress’s action: “[O]ur task is not to divine why Congress may have chosen certain synonyms over others in this particular Act. We believe Congress’s use of the word ‘cede’ can only mean one thing—a diminished reservation.”
People in rural Wyoming breathed a sigh of relief. Meanwhile, the tribes have until May 25 to seek en banc review.
William Perry Pendley is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of the Mountain States Legal Foundation, has argued cases before the Supreme Court and worked in the Department of the Interior during the Reagan administration. He is the author of “Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today.”
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