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Overreaching

Dec 11, 2013 - By Steven R. Peck

The EPA can't change the border of the Wind River reservation any more than it could decree the Nebraska Panhandle to be part of Wyoming

It would be an understatement to say that the Environmental Protection Agency's new ruling that the City of Riverton is part of the Wind River Indian Reservation was unexpected.

For years, the two tribes of the nearby reservation have been trying to find someone, somewhere, in the federal government willing to decree that Riverton is on the reservation. On Friday, with the EPA's ruling on monitoring air quality in the area, they finally found it.

But it is premature in the extreme for the EPA, the tribes, or anyone else to assume that this means Riverton now will be presumed to be part of the Wind River Indian Reservation for larger jurisdictional and administrative purposes, for one clear and simple reason: As a matter of established law as interpreted by the federal judiciary, Riverton isn't part of the reservation and has been determined not to be a part of the reservation time and time again.

An act of Congress, passed by both houses and signed by President Theodore Roosevelt, legally and formally removed from the reservation the land on which Riverton sits. The year was 1905, and the land was opened to non-Indian settlement the following year.

That would not have happened had the land still been part of the reservation. In other words, the reason Riverton exists as a municipality is that it isn't part of the reservation. That point has been argued in the courts, and lost, by the tribes numerous times through the years.

The EPA, an administrative body in the executive branch of government, has a point in saying that the air over the entire land mass that includes the reservation, Riverton, Kinnear and deeded land owned privately within the historical boundaries of the reservation -- and land in a larger buffer zone on all sides -- could benefit from a single, unifying policy on air quality control.

But that is a far cry from "redefining the boundaries of the Indian reservation" in any larger context, as some have characterized it earlier this week. It is hard to see how that could be done by the EPA any more than the EPA could "rule" that the Nebraska Panhandle is part of Wyoming.

For more than a decade, the federal courts ruled time and time again that Riverton is not part of the reservation.

So, those who would redraw the reservation needed a Plan B, and the EPA case is an ingenious new approach to the issue. EPA's ruling needs no congressional approval -- meaning it is a rule, not a law. EPA was asked to review the case in a narrow area related to air quality. Many will argue that it has overstepped its purview and its authority in making a sweeping statement that the reservation borders before 1905 are still in effect. The ruling never has been reviewed in court -- but it certainly ought to be.

Gov. Matt Mead already has called the decision "an outrage." The City of Riverton has stated its position that nothing has changed, nor will change unless the federal courts determine that the reservation boundaries have changed. Because federal courts already have ruled on the matter many times, the presumption is that ultimately it will take a U.S. Supreme Court ruling to settle the matter in the eyes of the challengers.

Wyoming legislators also are speaking out against the EPA interpretation this week. The Fremont County Commission discussed it Tuesday, and our congressional delegation will become involved as well.

If this declaration on air quality monitoring is pressed as the basis for a larger jurisdictional challenge, it probably will take another lengthy court proceeding to settle it (meters for the legal fees are already whirring, no doubt). And that challenge almost certainly will come, because forces pushing to have the City of Riverton placed under greater tribal authority have gained a toehold via the EPA that they did not have before.

Congress acted 108 years ago specifically so that disagreements over what was and wasn't the reservation would be put to rest, unlike other areas where land disputes over "Indian Country" raged. It was a formal process conducted for the right reasons. Nothing within that framework of governing has been undone. In the long run, it is unlikely that an executive agency's opinion about air quality will be the determining factor on this issue that some seem to feel must be "settled" again and again.

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MAIL SUBSCRIBERS: Tuesday's edition of The Ranger was delivered to the Riverton post office at 3:31 p.m., in time to meet the postal deadline for next-day mail delivery.

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