The U.S. Supreme Court ended a decade-long dispute on Monday, June 25, 2018, regarding the boundaries of the Wind River Reservation by denying certiorari in the combined case of Northern Arapaho Tribe, et al. v. Wyoming, et al. and Eastern Shoshone Tribe, et al. v. Wyoming, et al. The case answers two questions: (i) were the boundaries of the Wind River Reservation (the “Reservation”) diminished in 1905 by an agreement between the Northern Arapaho and the Eastern Shoshone (the “Tribes”), and (ii) do the Tribes have sovereignty over the City of Riverton, Wyoming?1
The 1868 Treaty of Fort Bridger established the Reservation, originally for the Eastern Shoshone Tribe.2 The Northern Arapaho Tribe joined the Reservation in 1878. The Reservation’s boundaries changed frequently throughout the first decades of its existence. In 1874, the southern boundary was changed when the Eastern Shoshone Tribe sold all of its land south of the forty-third parallel in the “Lander Purchase.”3 The Reservation’s boundaries changed again in 1897 with the “Thermopolis Purchase,” affecting the northern boundary. In 1904, the Tribes and the federal government entered into an agreement to open up largely unclaimed land north of the Wind River for sale to non-Indians under the Homestead Act.4 This agreement was enacted by Congress in 1905, but an unanswered question simmered under the surface for over one hundred years – did the 1905 agreement reduce the size of the Reservation?
The push towards a resolution of this controversy began in 2008, when the Tribes submitted an application to the Environmental Protection Agency for authority to manage non-regulatory programs for air quality in areas subject to tribal sovereignty. In their application, the Tribes had to clearly specify the boundaries of the Reservation to identify the proposed scope of their regulatory jurisdiction. The Tribes asserted that the Reservation boundaries were those set forth in the 1868 treaty, with the exception of the Lander and Thermopolis purchases. Thus, the Tribes claimed the Reservation included Riverton and the land north of the Wind River. The City of Riverton and State of Wyoming disputed that claim, asserting that the 1905 agreement reduced the boundaries of the Reservation, thereby establishing the current boundaries and excluding Riverton from the Reservation. The EPA asked the Department of the Interior for clarification, and the Solicitor concluded that the 1905 Act had not changed the boundaries established in 1868. The EPA granted the Tribes’ application, and the State of Wyoming and Wyoming Farm Bureau Federation appealed.
Exercising jurisdiction pursuant to 42 U.S.C. § 7607(b)(1), the Tenth Circuit decided the issue of whether Congress diminished the boundaries of the Reservation in its 1905 Act.5 The Court vacated the EPA’s boundary determination and applied a three-step, hierarchical test from Solem v. Bartlett to analyze the issue.6 The Court first looked to the text of the statute, explaining that the express language of cession and other references to diminishment in the Act strongly suggested congressional intent to reduce the size of the Reservation. Secondly, the Court examined the circumstances surrounding the passage of the Act. Congress’s repeated attempts to purchase the disputed land and statements about diminishing the Reservation in the legislative history convinced the Court that Congress intended to diminish the Reservation. Finally, to a lesser extent, the Court considered Congress’s subsequent treatment of the lands at issue, which the Court found did not affect its conclusion based on the first two steps of the test. The Court held that Congress clearly intended to diminish the reservation in 1905, thereby holding that the land north of the Wind River, including Riverton, belongs to the State of Wyoming.
In a dissenting opinion, Judge Carlos Lucero argued that “the majority opinion upended longstanding legal precedent holding that courts must err on the side of tribal sovereignty when it is unclear whether or not Congress intended to change the boundaries of a reservation.”7 He asserted that under the 1905 Act, the disputed lands were held in trust and remained tribal lands. The Tribes, without the EPA, then sought review by the Supreme Court.
The Supreme Court’s denial of certiorari means the Tenth Circuit’s ruling will stand. The boundaries of the Reservation are the boundaries as previously diminished by the 1905 Act. This is a disappointing result for the Tribes, who, along with their attorneys, believe the decision weakens their taxation and criminal justice authority as well as their water rights.8 Also, other tribes have entered into agreements to “cede” land, so the impact of the Supreme Court’s action in this case may ultimately determine if they are forced to change their boundaries as well. The decision also clears up what could have been a regulatory nightmare, with land in the disputed area north of the Wind River possibly being subject to contradictory oversight and regulations promulgated by the Tribes and federal government.
2 http://jacksonholehistory.org/an-introduction-to-the-wind-river-indian-reservation-of-wyoming/
3 Wyoming v. United States Environmental Protection Agency, 875 F.3d 505, 511 (10th Cir. 2017).
4 https://wyomingstatearchives.wikispaces.com/Wind+River+Reservation+History
5 Wyoming v. United States Environmental Protection Agency, 875 F.3d 505 (10th Cir. 2017); https://www.ca10.uscourts.gov/opinions/14/14-9512.pdf
6 Solem v. Bartlett, 465 U.S. 463 (1984).