Wind River Woes: EPA involvement in reservation issues raises questions
February 17, 2014
You may have seen the headlines recently shouting comments that a Wyoming town had been "handed over to the Indian tribes." The media furor has subsided, but the question remains, what happened on the Wind River Reservation in Wyoming?
TAS Designation Under the Clean Air Act
The Eastern Shoshone and Northern Arapaho Tribes of the Wind River Reservation, on Dec. 17, 2008, submitted to the Environmental Protection Agency an Application for Treatment in a Similar Manner as a State Under the Provisions of the Clean Air Act (TAS.) After a comment period that lasted a total of sixty days in 2009, and another period in which the Tribes were allowed to respond to comments, the EPA approved the Tribes' TAS application on Dec. 6, 2013.
In a Jan 6, 2014, letter from Howard Cantor of the EPA to The Honorable Cale Case and The Honorable W. Patrick Goggles, co-chairmen of the Wyoming state Select Committee on Tribal Relations, Mr. Cantor explains that "as part of our approval… the EPA was also required, by law, to identify the geographic scope of that approval." That last part, identifying the geographic scope, was what got the headlines going.
The EPA's Legal Analysis of the Wind River Reservation Boundary is not a judicial ruling, but an administrative ruling, although it takes the form of a judicial document. Regardless of whether or not one agrees with the EPA's Analysis, it is a carefully compiled opinion outlining reasonable judicial precedent for a finding of non-diminishment on the Wind River Reservation. And it was completed in the first place to "identify the geographic scope" for TAS approval.
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The TAS approval, at face value, gives the Tribes access to limited matching grant funds for monitoring air quality, and the right to be notified of and comment on projects that affect air quality in the TAS area and for a 50 mile radius outside the borders. The EPA repeatedly states that the TAS designation gives the Tribes no regulatory authority, even under the Clean Air Act.
But there is an atmosphere of mistrust and uncertainty among the non-Indian people of the region and the state of Wyoming.
"I would say the biggest concern with farmers and ranchers (in the area) is that someday they'll have to pay the Tribes to work here," said a Riverton area rancher who asked not to be named. "Of course I think that's kind of far-fetched, but you know how peoples' minds get to goin'. If it's just air quality, I don't have a problem with that."
"It's not air quality, it's precedent," says Ken Hamilton, Wyoming Farm Bureau President, who worries that the Tribes will someday want to regulate pesticides in the region. There have also been assertions that this will upset criminal jurisdiction in the area; a representative of the Fremont County Sheriff's office declined to comment except to say that nothing has changed in the Department since the EPA's ruling.
"My deep concern is about an administrative agency of the federal government altering a state's boundary and going against over 100 years of history and law," Wyoming Governor Mead said in a statement. "This should be a concern to all citizens because, if the EPA can unilaterally take land away from a state, where will it stop?"
Did the 1905 Act "diminish" the WRR?
The EPA was to find in 2009 that the State of Wyoming and the Tribes disagreed on the boundaries of the Wind River Reservation, but to approve the TAS application, the EPA still had to "identify the geographic scope of that approval." The central issue is whether the 1905 Act between the US Government and the Tribes did or did not "diminish" the Wind River Reservation. The 1905 Act was loosely based on the 1891 and 1893 failed agreements, but differed largely from them, and from the Lander and Thermopolis Purchase Acts, in one respect; instead of a "fixed sum certain payment" as was the case in all the other agreements, the land in the 1905 Act would be opened "according to the homestead, town-site, and coal and mineral land laws," and the Tribes would be paid from the monies generated by subsequent sales of the land. This, according to the EPA's Legal Analysis of the Wind River Reservation Boundary, did not prove Congress' or the tribes intent to "diminish" the Reservation boundaries, nor did it show "continuity of purpose" between the 1905 Act and the failed 1891 and 1893 agreements, another metric by which "diminishment" could be proven. In addition the EPA characterized the "cession" language in the 1905 Act, which differed slightly from the other Acts, as pro forma statutory language stripping individual Indian title to the land in question so that it could be transferred to prospective buyers, and therefore not proving intent by either party to "diminish" the Reservation. In other words, the EPA found, the land in the 1905 Act was opened to settlement by non-Indians without being removed from the Wind River Reservation. Further, subsequent acts and the settlement pattern of the land in question did not prove to the EPA a case of "diminishment." Only about 20 percent was ever settled by non-Indians, for example.
The land in question has been referred to inconsistently in the 1905 Act and subsequent Acts, memoranda, travel brochures, and court cases ever since 1905. There are references here and there to a "diminished reserve" alongside references to the lands in the 1905 Act as being "embraced within the said reservation." The character of the land in question has been the subject of some court cases, notably Yellowbear v. Wyoming (2010) and Northern Arapaho Tribe v. Harnsberger (2009), although in each of those cases, the Court chose to resolve the issues using a different or narrower focus. The Tribes, in response to comments, contend that the issue of diminishment was settled in a water rights case in 1988, commonly called Big Horn I. Today, the Wyoming Department of Tourism states that "the Wind River Indian Reservation reaches 70 miles east to west and 55 miles north to south. It spreads over 2.2 million acres…," the size of the undiminished reservation.
The 1953 Act Lands and the Midvale Irrigation District
The Tribes' Joint Business Council sent a letter to the EPA, Dec. 4, 2013, requesting that the EPA issue a ruling "on all the… lands except those outlined in Section 1 of the 1953 act… unless and until the Tribes' notify you…" and the EPA complied with this request, excluding some 300,000 acres, including the towns of Pavilion and Kinnear, from the TAS designation. The 1953 Act lands appear to roughly correspond with the Midvale Irrigation District. From their website, "formed in 1921, Midvale manages a 400 mile-long system of canals and laterals known as the Riverton Unit of the Bureau of Reclamation, delivering irrigation water to over 73,000 acres of irrigable classed lands in Central Fremont County, Wyo. The area is renowned for its hay production as is evidenced by 60 percent of the District`s irrigable lands producing premium hay that is annually shipped nation-wide. Gross receipts for crops produced within the District annually exceed $17 million." There is no document concretely linking the 1953 Act lands and the Midvale Irrigation District.
"There's a lot of people a lot smarter than me workin' on this deal," said Dennis Christensen, rural Riverton farmer and Midvale Irrigation District region 4 commissioner. "It's always an issue when something political like this comes up, but I'll just keep on farming."
Wyoming Attorney General Peter K Micheal, at the request of Governor Matt Mead, sent a Petition for Reconsideration and Stay of Approval of Eastern Shoshone and Northern Arapaho Tribes Application for Treatment as a State on Jan. 6, 2014.
"The Fremont County Commission has not taken a position (supporting the State Petition) as a board. I personally do not support the Governor on this," said Keja Whiteman, Vice-Chairman of the Fremont County Commision. Most of the Wind River Reservation is in Fremont County. "It's truly a matter of opinion whether or not this is a big deal. This is about tribes applying for money and monitoring air on their reservation. Some of the fringe media has been saying the EPA is taking land away from the State and all this crazy stuff, and it's not true. I hope this doesn't go to Court. I certainly think it's an opportunity for the State to sit down with the Tribes and save everybody time and money."
"We're not saying Riverton is a part of the reservation, it's within the reservation," says Sergio Maldonado, an active tribal member. Maldonado, an enrolled member of the Northern Arapaho Tribe, is the Diversity Coordinator and Liberal Arts instructor at Central Wyoming College in Riverton. "It's on the map. Go look at it. We're not looking at jurisdiction, we're not looking at taxes, we're not looking at all this stuff, we simply want to monitor the air. I was at a meeting January sixth and seventh, the Select Committee on Tribal Relations, the Wyoming Attorney General was there, everybody was real civil, ya know? And I said 'Let's be cool, allright? We're not trying to take anything from you.' We need to sit down and talk about the variables and come up with a solution. And now the Governor contends that this TAS was erroneous because it came from the EPA."
The city of Riverton issued the following statement last December: "Recently it has been reported in the media that the Environmental Protection Agency released an opinion declaring the area surrounding Riverton as 'Indian Country.' This has resulted in a number of calls to City Hall.
"It is the city's position that jurisdictional issues need to be resolved in court. To date, all court rulings have agreed that the City of Riverton is not on the Wind River Reservation and is not 'Indian Country.'
"There has been no legal change of status regarding criminal law or civil law in Riverton. Tax rates and collection methods remain the same, court jurisdictions remain the same, and police authority remains the same throughout Riverton. Future changes in legal status will only be recognized when issued by a legal court authority with the proper jurisdiction to rule on such matters."
If the issue goes to trial, it will be heard in the 10th U.S. District court of appeals. F