Supreme Court ruling emboldens tribes in another boundary case

Friday, March 25, 2016

The newest Indian law decision from the U.S. Supreme Court is already sending ripples across the nation.

By an 8 to 0 vote, the justices on Tuesday determined that the reservation of the Omaha Tribe has not been diminished. The unanimous ruling was a big slap to the state of Nebraska and to other parties that have refused to acknowledge that the village of Pender is and always has been Indian Country.

A similar dispute is playing out in neighboring Wyoming. There, the Eastern Shoshone Tribe and the Northern Arapaho Tribe have always argued that the city of Riverton is Indian Country.

The state of Wyoming and other local parties, unsurprisingly, don't believe that's the case and have cited a series of state court decisions that place the city outside of reservation boundaries. The 10th Circuit Court of Appeals, when presented with the issue in terms of a murder prosecution, declined to overturn those precedents.

The Wind River Reservation in Wyoming is home to the Eastern Shoshone Tribe and the Northern Arapaho Tribe. Photo by JGHowes

But a new party with a big voice stepped into the dispute and sided with the tribes. The Environmental Protection Agency, in approving the tribes' applications to develop air quality standards on the reservation, determined that Riverton is Indian Country.

"EPA has prepared a thorough legal analysis of the exterior boundaries of the Wind River Indian Reservation and concludes that the 1905 Act, which opened certain Reservation lands to homesteading, did not diminish the boundaries of the Reservation," the agency wrote in December 2013.

The tribes, though, haven't been able to exercise their authority because the state took the matter straight to the 10th Circuit. Oral arguments were heard on November 17, 2015, and a decision is expected soon, Northern Arapaho Chairman Dean Goggles said on Wednesday.

The Northern Arapahos signed onto a brief in Nebraska v. Parker, the case that the Supreme Court decided this week. Goggles pointed out that his tribe's situation bears some similarities -- both disputes involve an act of Congress and some payments for land that was sold, followed by an influx of non-Indians to the area.

Indianz.Com SoundCloud: U.S. Supreme Court oral arguments in Nebraska v. Parker

But the lack of a "fixed" payment for lands sold, along with the mere presence of non-Indians, is not enough to overlook the intent of Congress because only Congress can change the boundaries of a reservation, Justice Clarence Thomas wrote for the court.

"The decision in the Omaha case is a good outcome and gives the Northern Arapaho Tribe hope that the federal court will rule in our favor," Goggles said in a press release.

The Eastern Shoshone Tribe is also taking notice. The Native American Rights Fund sent a letter to the 10th Circuit right after the Supreme Court issued the decision.

"The decision's factual and legal holdings directly support respondent United States Environmental Protection Agency and intervenor Eastern Shoshone Tribe's legal analysis in the case presently pending before this court," NARF attorney Donald R. Wharton, who is representing the Eastern Shoshones, wrote on Tuesday.

Shoshone Chief Washakie signed a series of treaties with the United States, including the one that created the Wind River Reservation. Image: SPC Basin Shoshoni BAE 4423 #35-40 00869600 from National Anthropological Archives, Smithsonian Institution

Reservation diminishment disputes are extremely fact intensive so the Omaha Tribe's victory isn't a guarantee of success for others. But the decision in Nebraska v. Parker, along with the Supreme Court's refusal to hear a similar boundary case involving the Ute Tribe of Utah, indicate that the justices are not ready to overturn their precedents.

The latest developments also indicate that the justices aren't eager to disturb the factual findings made by lower courts like the 10th Circuit, which heard the Ute Tribe's case, or the 8th Circuit Court of Appeals, which handled the Omaha Tribe's case.

Although the 10th Circuit's forthcoming ruling in the Wind River case only affects the treatment as state approval for the Eastern Shoshone Tribe and the Northern Arapaho Tribe, the dispute highlighted racial and other tensions in Riverton, where Native Americans represent about 10.4 percent of the population, according to the U.S. Census Bureau. A brutal shooting of two Northern Arapaho citizens, one of whom died, by a non-Indian man pushed those feelings back to the forefront and both tribes called for greater cooperation with the local community.

Turtle Talk has posted documents from the case, Wyoming v. EPA.

Federal Register Notice:
Approval of Application Submitted by Eastern Shoshone Tribe and Northern Arapaho Tribe for Treatment in a Similar Manner as a State Under the Clean Air Act (December 19, 2013)