Arapaho promote mediation in Wind River Reservation border disputeBy Gregory Nickerson — May 6, 2014
A group of leaders from a Michigan town that successfully mediated a reservation boundary dispute is coming to Riverton, Wyoming, this week to share their story.
The former mayor and tribal leaders from Mount Pleasant, Michigan, will be on hand for a symposium today at the Intertribal Building at Central Wyoming College. From 9 a.m. to noon, a panel discussion hosted by journalist Geoff O’Gara will discuss how the town of Mt. Pleasant and the Saginaw Chippewa Tribe drafted agreements to resolve long-standing jurisdiction problems.
The group is coming to town at the request of the Northern Arapaho Tribe in hopes that their experience might provide a positive example for how to resolve an ongoing boundary dispute at the Wind River Indian Reservation.
“We are just going to hold the symposium and let everyone else talk,” said Northern Arapaho Business Council chairman Darrell O’Neal. “We’re inviting people to come and sit in on it, and maybe get their views and understanding on how people can work together to solve issues.”
The reservation boundary dispute stems from a December, 2013, U.S. Environmental Protection Agency decision that allowed the Northern Arapaho and the Eastern Shoshone tribes to gain “Treated as a State” (TAS) status under the Clean Air Act. As part of that decision, the Clean Air Act law required the EPA to perform a legal analysis of the reservation’s borders.
The EPA interpreted a 1905 act of Congress to read that Riverton is within the Wind River Indian Reservation for purposes of air quality monitoring. That vindicated the position of the two tribes, but caused concern for non-Indians in Riverton who have historically not considered the town to be within the reservation. For many, the EPA decision stirred up long-standing questions of whether legal jurisdiction in Riverton belongs to tribal governments or the city of Riverton. Many worried about whether the decision would affect property rights, tax issues, law enforcement and prosecution.
The state of Wyoming subsequently filed a lawsuit asking the 10th Circuit Court of Appeals in Denver to review the EPA’s decision. That lawsuit is still pending as of this week, as the Northern Arapaho host the symposium titled “Mending Fences: How one Michigan town resolved its boundary battle without the courts.”
The symposium, which is open to the public, will explain how the state of Michigan, the city of Mt. Pleasant, Isabella County, and the Saginaw Chippewa Tribe settled a federal lawsuit in 2010, putting an end to 100 years of disagreements. The panel will focus on how the groups came together to solve jurisdictional, land, and tax issues.
“Initially, I think we all thought we were going to resolve the lawsuit in court,” Mt. Pleasant city commissioner Kathleen Ling stated in a press release. “But in the process of sitting down and talking to each other (in mediation) we realized we weren’t as far apart as people had initially thought.”
Officials from Mt. Pleasant say the agreements that came out of the mediation improved coordination and goodwill between Mt. Pleasant and the Isabella Reservation. Further, they believe the settlement brought a better outcome than simply letting courts decide the matter.
The symposium in Riverton today (Tuesday, May 6) will explore how such a strategy could be implemented in Wyoming.
“We hope this symposium can provide a safe place to sit down together and learn from the Michigan experience,” Anthony “Al” Addison, Arapaho Business Council member, stated in a press release. “We also hope it will spark discussion and creative thinking, and will ultimately lead to a negotiated resolution of our own boundary dispute.”
The Northern Arapaho extended an invitation to Gov. Matt Mead. Mead’s spokesman Renny MacKay said the governor could not attend due to a previously planned meeting of the Wyoming Office of State Lands and Investments on the same day.
WyoFile contacted the Eastern Shoshone Business Council to ask whether they would participate in the symposium. The call was not returned by press time.
Riverton Mayor Ron Warpness said he plans on attending. “I have always felt that talking isn’t bad, and getting a feel for different perspectives on issues is good, and I think there are things we can learn from their experiences,” he said.
However, Warpness believes that the scenario in Mt. Pleasant differs fundamentally from Riverton’s situation because the tribe and the town agreed on the location of the reservation boundary. “The tribes are wanting to say Riverton is part of the reservation and it’s not,” Warpness contends. “We are trying to resolve our issue here, but it is not going to happen in a symposium like this. I think it is going to happen in the courts or legislatively.”
Keja Whiteman, the only American Indian member of the Fremont County Commission, told Riverton Ranger editor Chris Peck that she would prefer mediation over a court decision. “I think when you immediately jump to litigation the only people who benefit are the attorneys,” she told the Riverton Ranger.
Whiteman, who is an enrolled member of the Turtle Mountain Band of Chippewa, opposed Fremont County becoming an intervener in the state of Wyoming’s suit against the EPA’s decision. The city of Riverton and the Arapaho Tribe also filed to become interveners.
More than just clean air
When the EPA ruled that Riverton is part of the Wind River Indian Reservation, it was backed up by a Department of the Interior reading of law going back more than a century.
The agencies’ view rests on the idea that a 1905 act of Congress did not change the exterior borders of the reservation when it opened the reservation to non-Indian settlement. The agencies argue that the government never formally purchased that land in the 1905 act with a lump sum payment, and did not permanently sever it from the reservation.
That differed from other sales that did in fact sever all claims to land, change borders, and diminish the reservation. The United States paid $25,000 in 1874 to move the southern border of the reservation farther north so that it excluded Lander. In 1897 the United States bought the land where Thermopolis is located for $60,000.
By contrast, the state of Wyoming, the Fremont County Commission, and the Riverton City Council all argue that Riverton is not part of the reservation. They hold that the 1905 act, and decades of legal precedence — including a ruling from the Wyoming Supreme Court — all show that Riverton is not part of the reservation.
“We’re the ones that asked the EPA to make the determination with the application we put in five years ago. It took them that long,” said Northern Arapaho Business Council chair Darrell O’Neal. “We understood it was going to get political. For the tribes, it’s something that we’ve wanted for years.”
Wyoming’s congressional delegation came out in strong opposition to the EPA decision. Sen. Mike Enzi (R), Sen. John Barrasso (R), and Rep. Cynthia Lummis (R) sent a letter to the EPA in December, stating, “The EPA’s decision has in effect overturned a law that has been governing land and relationships for more than 100 years.”
In February, the Northern Arapaho and the Eastern Shoshone Tribes agreed to join the state in requesting a stay of the EPA decision, which the agency granted. Later on, the city of Riverton, the Fremont County commission, and the Northern Arapaho all applied for intervener status in the case.
According to the EPA, the TAS approval will allow the tribes to receive more grants under the Clean Air Act, and get notifications of air permits that may affect their airshed. It will also allow the tribes to participate in air quality commissions and the development of risk management plans. The EPA decision stressed that TAS does not give the tribes regulatory authority.
“We want to do what any sovereign entity does and that’s what Treatment as a State does. It gives us what we should have,” O’Neal said. “We don’t want to do anything like running their government or taking their lands. We are looking out for the best interests of our people, as far as quality of the air, making sure everybody is safe.”
Wyoming’s congressional delegation worried that TAS could have negative impacts on the industries that drive Wyoming’s economy. In a December 20, 2013, letter to the EPA, the delegation expressed its concerns over “the overregulation that will potentially occur on energy development in the contested area.”
O’Neal noted that the tribes count on the royalties from mineral production on the reservation to fund tribal government. “We do have our own wells. We wouldn’t do anything to jeopardize our part of finances and the money that comes through that,” O’Neal said.
Sen. Enzi said in a recently released video that the EPA is using the tribes:
“The tribe is being used kind of as a pawn in this overreach by the EPA,” Enzi said. “We need to take a look at what the EPA does, and put some reins on them. … The tribes will get some extra employees and some extra money, but the EPA will wind up making the decisions, and if they don’t like their own decisions, they can appeal it and they appeal it to themselves. That’s wrong. We’re going to have to have more control from Washington on what the EPA does.”
In April, Sens. Enzi and Barrasso notified the tribes of draft legislation that would allow TAS but recognize the borders of the Wind River Indian Reservation as being “diminished” by a 1905 act that opened the reservation for settlement. Northern Arapaho leaders said the draft legislation was an attempt to “terminate” reservation land.
“The bill you have put forward resurrects policies discredited and abandoned long ago by the United States,” wrote the Northern Arapaho Business Council in an April 4 letter to Wyoming’s congressional delegation. “We strongly suspect that people who support this bill have not taken the time to read the Department of Interior and EPA decisions, study the law, or appreciate the history. The notion that someone would skip this exercise and go straight to promoting legislation to reverse the longstanding federal view embodied in the decision is to us, quite frightening. … This bill is a direct assault on our sovereignty and what little remains of our homeland. Its passage would reflect poorly on the state of Wyoming. Those who promote it will find themselves on the wrong side of history.”
Warpness said he believes the tribes are unwilling to embrace TAS without the borders specified by the EPA. And that, Warpness said, show’s their true position.
“The tribes told me this is just about clean air. But when you try to separate out the clean air from the boundary, they don’t want to do that, which tells me it is more than just clean air,” Warpness said.
While the Northern Arapaho and the Eastern Shoshone might prefer mediation, Warpness and many non-native residents of Riverton feel there is no room for negotiation on the boundary question. “The city of Riverton is not negotiable. It is not part of the reservation, period,” Warpness said. “If we lose our lawsuit and the wisdom of DC says we are part of the reservation, that is a bitter pill we would have to swallow.”
In Warpness’ opinion, the court must decide the boundary issue, and only then will it make sense to engage in mediation over lingering questions of jurisdiction.
“Maybe at some point in time when the boundary issue is resolved, and if Riverton is found to be on the reservation, then we can talk, and these discussions will have some merit,” Warpness said. “But if they find that the city’s position and the state’s position is right, then it is a moot point. But until that is resolved we’re just having coffee talk.”
While the purpose of the symposium is to discuss the potential for settlement and mediation, O’Neal says the Northern Arapaho are prepared to litigate if that is the only option.
“Talking and trying to work things out is better than going to court, but if we have to go to court we have to,” O’Neal said. “We want the relationship to get better. We are not going anywhere. We live right here next to each other. We have to start getting along. That’s for the better of everyone.”
Senator Enzi on EPA boundary issue
WyoFile article — A legacy of prejudice: Lawsuits, failed pacts tell ugly story, by John Lancaster, August 30, 2010. WyoFile article — Can state and tribes share jurisdiction in Riverton? by Ron Feemster, January 28, 2014. Department of the Interior opinion on Wind River Reservation boundary EPA decision on Wind River Reservation Boundary EPA Analysis of Wind River Reservation Boundary Tribal Application Documents for TAS Environmental Protection Agency page on TAS for Wind River Reservation EPA letter granting stay of TAS decision (February 13, 2014)
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