President Obama’s Environmental Protection Agency (EPA) has earned a reputation as the most lawless agency in an administration infamous for its abuses of the Constitution and the rule of law. The EPA, for example, implemented a “cap and trade” regime that Congress rejected, brought criminal actions against citizens for “wetland” violations as it sought power over more landowners, and declared a “war on coal” that will put thousands out of work, drive up the price of electricity, and render its delivery unreliable. Now, the EPA may set a convicted killer free.
In late 2013, the EPA declared over a million acres in west-central Wyoming, including the town of Riverton (pop. 10,000), as part of the Wind River Indian Reservation — that is, “Indian country.” Purportedly, the EPA’s action is required by a Clean Air Act provision allowing tribes to obtain the authority available to states to regulate their air-quality programs; but, in doing so, the EPA subjected land — long known to be outside the reservation — to the tribal jurisdiction of the Northern Arapaho and Eastern Shoshone. The tribes had sought for years to get jurisdiction over the land, but with President Obama in office, they saw their opening with the Clean Air Act provision, which is why the tribes used 82 pages of their 87-page application to argue that Riverton and the other acreage was “Indian country.”
The reservation was established in 1868, but in 1904, the tribes agreed with the United States to cede 1.48 million acres of land in exchange for per capita payments to tribal members and capital-improvement projects. In 1905, Congress ratified the agreement, declared the lands were “ceded, granted, relinquished, and conveyed” to the United States, and referenced the new reservation as “the diminished reserve.” In 1906, the ceded lands were opened for settlement by presidential proclamation; the land was sold to non-Indians, including land that became Riverton. In 1939, some unsold ceded lands were restored to the reservation, but no lands inside the Riverton city limits were ceded.
Over the decades, Congress, the Supreme Court, and the Wyoming Supreme Court wrote of “lands formerly embraced in the [Reservation],” of a “diminished reservation,” and of lands “ceded, granted, and relinquished.” Challenges by tribal members of their convictions in state court for crimes committed in Riverton — putative “Indian country” — were all rejected, on one occasion with amicus support for Wyoming from the United States. In 1998, a unanimous Supreme Court rejected a tribal attempt to void a similar grant.
Westerners, elected officials, and commentators nationwide heaped abuse on the EPA, but there is plenty of blame to go around. According to the EPA’s website announcing its decision, its “determination is consistent with a 2011 Opinion of the Solicitor of the U.S. Department of the Interior.” Alas, this solicitor, Hilary C. Tompkins, who is President Obama’s top lawyer at the Interior Department, made utter hash of unquestionable history. Worse yet, her opinion slavishly tracks the tribes’ 2008 application to the EPA in which they cherry-picked bits of congressional hearings and self-serving tribal documents but ignored court rulings, the 1904 agreement, the 1905 Act, and their binding language.
Throughout the 1.48 million acres that the EPA says is now “Indian country,” citizens of Riverton and ranchers and farmers are in a panic.
In early 2014, Wyoming and the Wyoming Farm Bureau Federation sued the EPA. In early 2015, the lawsuit drew an amicus curiae brief from ten states arguing that the EPA is “owed no deference with respect to its application of federal common law principles to historical facts [and that] Wyoming’s and the other parties’ views on the diminishment issue accordingly have as much weight as the [EPA’s].”
Meanwhile, there is much fear and uncertainty in Wyoming. Throughout the 1.48 million acres that the EPA says is now “Indian country,” citizens of Riverton and ranchers and farmers are in a panic. Housing prices have plummeted. Non-Indians fear they will fall under the legal jurisdiction of the tribes — both civilly and criminally.
There is an unintended but not unexpected outcome of the EPA’s pursuit of its brand of “environmental justice”: A convicted murderer says he must go free! Andrew Yellowbear — a Northern Arapaho tribal member who lived in Riverton — was convicted in a Wyoming court of killing his young daughter. Arguing that the crime occurred in “Indian country,” he challenged his conviction up to the Supreme Court, where he lost. Now, it appears that the EPA agrees with him; in fact, days ago, he filed a brief in support of the EPA’s decision with the hope that, if the EPA prevails, he will be set free.