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Tribe fires back at state's challenge of EPA border ruling
Jan 23, 2014 - From staff reports
Lawyers for the Northern Arapaho Tribe say Wyoming's petition against a recent ruling by the Environmental Protection Agency is "replete with errors of law and fact."
The EPA in December approved an application from the Northern Arapaho and Eastern Shoshone tribes requesting Treatment as a State through the federal Clean Air Act. As part of the decision, the EPA ruled that a 1905 Congressional Act opening tribal lands - including the city of Riverton - to homesteading did not diminish the reservation boundary.
On Jan. 6, Wyoming filed a petition requesting the EPA reconsider the ruling, which was made based on "incomplete facts and faulty legal conclusions," according to Gov. Matt Mead. The petition also asks for a stay of any implementation of the EPA ruling until a final judicial decision has been issued.
The state has submitted more than 22,000 pages of exhibits and affidavits in support of its petition, but lawyers for the Northern Arapaho Tribe took issue with many of the documents. In a response released this week, the tribal representatives said the state's "parade of horribles" reflects a "profound lack of understanding."
"The state fails to understand the difference between land ownership and sovereign authority over territory," the response states. "(The petition) ignores basic principles of concurrent jurisdictions (and) manufactures mythical consequences for local communities that appear to be designed to inflame racial division and conflict."
The federal agency's conclusion has prompted sharp criticism from Mead and other state officials. They say it calls into question state jurisdiction over the disputed lands on a range of issues including law enforcement and environmental regulation.
The EPA addressed the boundary issue when it granted a request from the Northern Arapaho and Eastern Shoshone tribes to treat their joint reservation as a separate state under the federal Clean Air Act. That decision would give the tribes standing to be consulted on activities within a 50-mile radius of the reservation boundary on activities that promise to affect air quality.
Mead has pledged to challenge the EPA decision in court. The state has until Feb. 18 to file its appeal in the 10th Circuit Court of Appeals in Denver.
In comments to the Wyoming Press Association in Laramie on Friday, Mead said he understands the tribes' desire to be more involved in environmental regulation. While he said the state and the tribes long have disagreed over the legal status of the disputed land, he said his real concern is with overreaching by the EPA.
"What's problematic here is you have a regulatory agency, the EPA, coming without notice to the state and saying, 'We're redefining the boundaries of the reservation, and in doing so, we're redefining the boundaries of state jurisdiction,'" Mead said. "It's problematic that EPA does this. It should certainly be at a higher level, i.e. Congress."
The tribal response first references an affidavit submitted by John L. Butler, administrator of the Wyoming Highway Patrol. The tribe calls Butler's affidavit "unremarkable," quoting a section that states the EPA's ruling "will have a minimal impact on patrol efforts."
Butler was specifically referring to the expansion of his agency's current jurisdictional and enforcement efforts for American Indian citizens as a result of the EPA ruling. In the affidavit, he says his agency historically uses tribal courts to process charges for American Indians arrested on the Wind River Indian Reservation. If Riverton were determined to be part of the reservation, it is possible that enrolled members arrested in city limits could still be referred to tribal courts.
"This change would have minimal impact on the patrol efforts as long as we maintain the jurisdictional ability to positively impact highway safety and enforce tribal law," Butler wrote.
He referred to a period in 2000 when the WHP lost its jurisdictional authority to enforce tribal law upon American Indians on the WRIR.
"If we contacted an enrolled member ... the Wind River Police or a Bureau of Indian Affairs officer had to respond and assist," Butler said. "During this time, it is my opinion the citizens who traveled within the boundaries of the WRIR suffered greatly, and the positive efforts we had achieve in highway safety were diminished."
If the WHP loses jurisdictional authority in the future, he said the resulting negative consequences on highway safety will have a more detrimental impact to the traveling public due to the extension of the WRIR boundaries.
The tribe in its response agrees that criminal jurisdiction over American Indians is federal and crimes committed by or against American Indians within Indian country are prosecuted by the United States or by the tribes themselves, or both.
"All future prosecutions of crimes in the 1905 Act area involving either an Indian perpetrator or an Indian victim should be referred to federal authorities," the response states.
The tribal representatives pointed out that, in the above scenario, expenses for investigations, prosecutions, public defenders and incarcerations would be borne by the United States at a "considerable savings" to state and local governments.
The response also notes that tribes have no jurisdiction to prosecute crimes committed by non-enrolled citizens.
"Most of the (state's) affidavits are wildly inaccurate in characterizing the jurisdictional implications of the decision, and its impact on non-Indians," the response states. "These affidavits are based on the erroneous assumption that the state would have no regulatory authority whatsoever over non-Indian conduct within the reservation as a result of the EPA ruling."