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Northern Arapaho Tribe Will Appeal Circuit Court Decision About Reservation Boundary

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The Northern Arapaho Tribe will appeal an Appellate Court’s split ruling Wednesday that the Wind River Reservation boundaries were reduced by Congress in 1905, according to a news release from the Tribe.

“The Northern Arapaho Tribe will appeal this decision to the full Tenth Circuit for its reconsideration,” Northern Arapaho Business Council Chairman Roy Brown said.

In 2013, the U.S. Environmental Protection Agency responded to a request from the Eastern Shoshone and Northern Arapaho tribes to treat the reservation as a separate state to implement the federal Clean Air Act, which mean using boundaries of the reservation set in 1868 before a pivotal 1905 Congressional Act. That added more than one million acres to the Reservation’s current size and extended over Riverton’s city limits.

Wyoming, the Wyoming Farm Bureau Federation and 10 other states appealed the EPA’s action, which was heard by a three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals.

The Circuit Court used a three-part analysis by the U.S. Supreme Court to determine if Congress meant to disestablish, or reduce, the boundaries of a reservation:

  • Whether there was a payment to the tribes of a sum-certain, a fixed-price payment for the land.
  • Whether the lands were restored to the “public domain”.
  • Other factors such as legislative history, and how the lands were treated after the Act.

Chief Circuit Court Judge Timothy Tymkovich and Judge Paul Kelly decided that the 1905 Act reduced Wind River boundaries because it “ceded” that part of the Reservation to the United States.

The Tribe responded the judges made new law by describing the payment to the Tribes as a “hybrid” system that included specific amounts as general aid and also having the United States act as a sales agent for lands in the 1905 Act area.

The Tribes would not receive payment for any lands unless they were actually sold, but the “hybrid” system met the first test, the judges wrote.

The 1905 Act did not return that part of the Reservation to the “public domain,” but the two judges wrote the “public domain” and other tests were not as important as the first test.

But in a strongly worded dissent, Judge Carlos Lucero argued the majority erred in not taking those other factors into account and reached the opposite conclusion from other circuit courts, Lucero wrote.

This failure to follow legal precedent may open an appeal to both the full 10th Circuit panel and the U.S. Supreme Court, he wrote.

“Judge Lucero was correct in his dissent, when he pointed out that the 1905 Act did not have clear language diminishing the Reservation,” Brown said. “The 1905 Act did not have a sum-certain payment to the Tribes of the Wind River Reservation, and this new ‘hybrid’ approach ought to be overturned.”

Co-Chairman Lee Spoonhunter said in the press release that Lucero referred to a 1970 U.S. Supreme Court ruling stating when courts are faced with two possible interpretations  of a diminishment statute, those “‘Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their favor.'”

The Northern Arapaho Tribe has 14 days to file an appeal with the full panel of all 19 judges of the 10th Circuit.

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