Mountain States Legal Foundation Logo
Action Update

Obama’s EPA, The Most Lawless in History, Makes a Million Acres of Wyoming “Indian Country” Contrary to 100 Years of Federal Law With Grave Consequences; MSLF Fights Back!

Mar 15, 2015 | by William Perry Pendley

In late 2013, President Obama’s Environmental Protection Agency (EPA), which has established already an infamous record for arrogance and lawlessness, outdid itself with the extraordinary decision that a million acres of land in west-central Wyoming, including the town of Riverton, lie within the Wind River Indian Reservation, that is, the land is “Indian country,” with serious consequences for American Indians and non-Indians who live there!

Purportedly, the EPA’s action is required by a Clean Air Act provision allowing tribes to obtain the authority available to States to regulate their air quality programs but, in doing so, the EPA subjected land long known to be outside the Reservation to the tribal jurisdiction of the Northern Arapaho and Eastern Shoshone. In early 2014, Wyoming challenged the EPA’s decision in the U.S. Court of Appeals for the Tenth Circuit in Denver. Days later, MSLF entered the lawsuit on behalf of the Wyoming Farm Bureau Federation and its members who live and/or work in Riverton and Fremont and Hot Springs Counties. On behalf of its client, MSLF just completed filing one of its briefs.

The Reservation was established in 1868, but, in 1904, the Tribes entered into an agreement with the United States 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-Indians, including land that became Riverton. In 1939, some unsold ceded lands were restored to the Reservation, but no lands inside the Riverton city limits were restored.

Over the decades, Congress, the Supreme Court, and the Wyoming Supreme Court wrote of “lands formerly embraced in the [Reservation],” of a “diminished reservation,” and of lands “ceded, granted, and relinquished.” Challenges by tribal members of their convictions in state court for crimes committed in Riverton—putative “Indian country”—were all rejected, on one occasion with amicus support for Wyoming from the United States. In 1998, a unanimous Supreme Court rejected a tribal attempt to void a similar grant.

Westerners, elected officials, and commentators nationwide heaped deserved abuse on the EPA, but there is plenty of blame to go around. The EPA wrote that it received “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.” The Solicitor is President Obama’s top lawyer at the Interior Department, which as the home of the Indian Bureau since 1824, is the 500-pound gorilla on American Indian issues and has been since 1873 when Congress transferred territorial responsibilities for the American West there from the State Department.

Unfortunately, the Solicitor made unmitigated hash of the undisputed history of the Wind River Indian Reservation. In fact, her opinion slavishly tracks the Tribes’ 2008 application to the EPA in which they cherry-picked bits of congressional hearings and self-serving tribal documents but ignored court rulings, the 1904 agreement, the 1905 Act, and their binding language.

Most egregious is the Solicitor’s failure to address a 1998 ruling of the Supreme Court of the United States on another tribe’s similar assertion. A unanimous Court, in an opinion by Justice O’Connor, held that Congress set forth “the most certain statutory language, evincing [its] intent to diminish the [Reservation] by providing for total cession and fixed compensation.”

One year ago, in another case from Wyoming brought by MSLF, the Supreme Court rebuked the federal government for ignoring 139 years of legal precedent. MSLF believes that, as a result of its lawsuit on behalf of the men and women of the Wyoming Farm Bureau Federation, the EPA will suffer the same fate, to quote from MSLF’s 2014 victory at the Supreme Court, because of the EPA’s “improbable (and self-serving) reading” of history.

The EPA’s decision is so out of line that MSLF drew an amicus curiae brief from ten States. Idaho, Alabama, Colorado, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, and Utah say that the EPA is “owed no deference with respect to its application of federal common law principles to historical facts [and that] Wyoming’s and the other parties’ views on the diminishment issue accordingly have as much weight as the [EPA’s].” This brief is helpful; however, it will not carry the day. It is up to MSLF to defeat the EPA’s bold, brash, and brazen violation of law.

Meanwhile, there is much fear and uncertainty in Wyoming. Citizens of Riverton and ranchers and farmers throughout the 1.48 million acres that the EPA says is now “Indian country” are in a panic. Housing prices have plummeted. Non-Indians fear they will fall under the legal jurisdiction of the Tribes—both civilly and criminally.

There is another unintended but not unexpected outcome of the EPA’s pursuit of “environmental justice.” A convicted murderer says he should go free! Andrew Yellowbear—a Northern Arapahoe tribal member who lived in Riverton—was convicted in a Wyoming court of killing his young daughter. Arguing the crime occurred in “Indian country,” he challenged his conviction up to the Supreme Court but lost. Now, it appears the EPA agrees with him.

Thank you for your support of this vitally important undertaking by MSLF against the EPA, the most powerful and lawless agency in the country.

Help protect constitutional liberties and private property rights, and promote limited and ethical government and the free enterprise system:

Donate Here