Leaps and boundaries for Wyoming tribes

State battles Wind River tribes over expanded reservation and greater stake in energy management.

By Joshua Zaffos, High Country News

Riverton, Wyoming, looks like an All-American boomtown, fronted along a busy strip of hotels and fast food joints with steady traffic from industry trucks and pickups. But the Northern Arapaho and Eastern Shoshone tribes are arguing that Riverton is part of the Wind River Indian Reservation – and the Environmental Protection Agency agrees. That determination, now before the courts, could allow tribes to have greater involvement in energy development rules and also strike a significant win for tribes after centuries of losing ground.

A 1905 Congressional act opened nearly 1 million acres of Wind River reservation lands in central Wyoming for non-Indian homesteaders, miners and new towns. Later acts restored much of that area as part of the reservation, but 171,000 acres, including Riverton, were never officially returned to the tribes. Despite the developments, the Northern Arapaho and Eastern Shoshone, who share the reservation, say the lands have always remained under tribal ownership.

The matter boiled over in 2008 after the Wind River tribes applied to the EPA for “treatment as a state” designation under the Clean Air Act, which would allow them to implement and manage air-quality programs on their shared reservation. In a region heavily reliant on the production from thousands of oil and gas wells, the additional oversight – and a change in jurisdiction – poses some uncertainty for the industry.

The EPA approved the tribes’ request in late 2013 and, as part of the proceedings, reviewed the reservation’s boundaries. After studying historical records, the EPA announced that the disputed lands are still part of the Wind River reservation.

“It’s a big deal for the Wind River tribes and for Wyoming because jurisdiction is what sovereign governments are all about,” says Debra Donahue, professor at University of Wyoming College of Law. “It’s important for the tribes just as an affirmation that the lands are still within the reservation and they are the primary sovereigns within that territory.”

The state of Wyoming, the Wyoming Farm Bureau, and Devon Energy, one of the largest oil and gas companies in the country, all sued EPA over the outcome and asked the Tenth Circuit Appeals Court to review the decision. This month, ten other states filed an amicus brief, asking the court to fully review EPA’s boundary determination, and questioning why the agency was wading into Indian law and boundary disputes.

Wyoming Gov. Matt Mead, R, has said the EPA’s determination sets a “dangerous precedent” for administrative agency intervention in tribal boundary and state sovereignty issues. Mead has also battled the EPA – and complained of other dangerous precedents – over President Obama’s proposed stricter rules and carbon controls for coal-fired power plants, and in defense of the state’s own plan to reduce power-plant haze and improve air quality in national parks and wilderness areas, which is more lax than federal plans. Wyoming won backing from the courts on the latter issue last September, allowing coal plants to avoid installing new pollution controls.

If the appeals court upholds the EPA’s boundary designations, the state can still tax local citizens and businesses in the Riverton area. According to the Equality State Policy Center, non-Indian people would be minimally impacted, although some new tax advantages could benefit businesses. Enrolled tribal members in the extended area, however, would be under tribal jurisdiction in criminal or legal cases, and the Bureau of Indian Affairs and tribal courts would have more authority.

Under the Wind River tribe-as-state application, the tribes aren’t seeking all-out regulatory authority, but they would gain the right to monitor local air quality and to comment on regional projects that could impact environmental health. The state would maintain regulatory control over the oil and gas industry, and it’s doubtful the decision would affect energy development. Along with the rest of Wyoming, the Wind River tribes rely heavily on oil and gas for government revenues, but some homes on the reservation have hazardous drinking water, possibly linked to industry activity, and the EPA has even ordered some residents to ventilate homes when bathing or running taps.

Many observers expect the appeals court to overturn the EPA’s decision. Donahue says courts are typically reluctant to find in favor of tribes in such boundary disputes.

But one detail in the case could prove essential for the tribes’ argument: The century-old law behind the dispute didn’t set a single sum payment for the territory, like many other Indian Country purchases, but instead allowed for settlers to buy ceded lands one parcel at a time. “The U.S. Supreme Court has said that distinction is significant,” Donahue says, since it’s been interpreted to mean Congress wasn’t reducing the reservation boundary while the tribes retained an interest in the area. If the appeals court or the Supreme Court upholds that view, tribes with similar circumstances could pick up the strategy.