Current Cases & Projects | Eastern Shoshone Tribe, Wind River Indian Reservation Boundaries
Eastern Shoshone Tribe, Wind River Indian Reservation Boundaries
Attorney: Don Wharton
Case Update
NARF has been retained by the Eastern Shoshone Tribe (EST) of the Wind River Indian Reservation to analyze the boundary and jurisdictional implications for the Reservation boundaries of the Surplus Land Act of March 3, 1905 and other legislation and cases. The Wyoming Supreme Court ruled in January 2008 that the boundaries of the reservation had been diminished when it upheld the conviction of a member of the Northern Arapaho Tribe (NAT) for a crime committed within the City of Riverton, Wyoming. The defendant in that case, Mr. Andrew Yellowbear, unsuccessfully sought federal district court and appellate review of that boundary diminishment issue.
Separately, NAT filed a federal district court case, NAT v. Harnsberger, against state and county employees challenging the collection of certain taxes assessed on the Tribe and "Indians". That case attempted to raise the question of the effect of the 1905 Act on the Reservation's boundaries, and to argue that the issue had already been decided by the Wyoming Supreme Court in the Big Horn water cases and was therefore precluded from relitigation. In January 2009, the federal district court ordered that the EST and the United States be joined as Third Party Defendants and that they file pleadings responding to the complaint in the case. Both the EST and the US filed motions to dismiss on the grounds of sovereign immunity. In October 2009 the Court granted these motions, dismissing the case with prejudice, but over the objections of the EST held that the Big Horn case was not preclusive on the issue of the boundary. The NAT appealed to the U.S. Court of Appeals for the 10th Circuit. On July 12, 2011 the NAT asked the Court of Appeals for Summary Disposition and a remand to the District Court to designate tribal officials of the EST in lieu of the Tribe. The EST opposed the Motion, and the Court denied it. On October 18, 2012 the 10th Circuit Court of Appeals issued an opinion upholding District Court's dismissal of the NAT complaint and remanded with instructions to dismiss the case without prejudice and expressly indicating that it expressed no opinion on the preclusive effect of the Big Horn case.
Meanwhile, the EST and NAT are cooperating in an application to the U.S. Environmental Protection Agency (EPA) for delegation of "treatment in the same manner as a state" (TAS) in the administration of certain Clean Air Act programs. A determination supporting delegation will require that US EPA determine the location of the boundaries of the Reservation. The TAS Application has been published by US EPA and they have received comments. The Tribes filed their Response to the comments in March 2010. US EPA requested a written opinion from the Department of the Interior on the boundaries which has been completed and forwarded to the US EPA. We are awaiting US EPA's decision about the application for delegation of certain Clean Air Act programs that are dependent on the boundaries' determination.