- Associated Press - Tuesday, May 12, 2015

CHEYENNE, Wyo. (AP) - The state of Wyoming can’t argue against a federal agency’s recent conclusion that over 1 million acres around Riverton remain legally Indian Country, the Northern Arapaho Tribe maintains in a federal court filing this week.

The tribe filed a brief in the 10th U.S. Circuit Court of Appeals this week arguing that Wyoming already lost its claim that Riverton’s status as “Indian Country” was extinguished when Congress threw the area open to settlement by non-Indians 100 years ago.

The tribe says the state raised and lost the claim in the 1980s in a lawsuit over Bighorn River water rights and should be barred by legal rules from raising it again.

Wyoming, along with the Riverton and Fremont County, is appealing the U.S. Environmental Protection Agency’s 2013 ruling that Riverton and surrounding lands remain legally Indian country for purposes of administering the federal Clean Air Act.

The EPA made the determination as it granted an application from the Northern Arapaho and Eastern Shoshone tribes, which share the reservation, to treat them in a manner similar to a state for purposes of administering the federal Clean Air Act.

Wyoming officials have said that a court ruling establishing Riverton remains on reservation land would affect provision of state services, including law enforcement protection, to non-Indian residents there.

The Northern Arapaho Tribe’s brief states that the courts rejected a similar argument from Wyoming on the reservation boundary issue in the 1980s. In that case, the tribe states, Wyoming courts upheld the award of federally reserved water rights, meaning water rights associated with reservation lands, from the Bighorn River to non-Indians who had settled in the disputed area after Congress opened it to settlement by non-Indians in 1905.

Lander lawyer Andy Baldwin represents the Northern Arapaho Tribe and declined comment on the case on Tuesday.

In his brief, Baldwin notes that the law prohibits bringing a new lawsuit to hash out issues again once they’ve already been decided in court. Baldwin says the state would have the federal court ignore that principle and instead, “fashion new law that endorses a results oriented, might-makes-right viewpoint. The court should reject this approach.”

Attempts to reach Wyoming Attorney General Peter Michael for comment on the case Tuesday were not immediately successful.

In early 2014, Michael wrote EPA Administrator Gina McCarthy asking her to reconsider her agency’s conclusion on the boundary issue.

“Congress indisputably diminished the Wind River Indian Reservation in 1905,” Michael wrote to McCarthy. He said the EPA cannot remake history and must address this fundamental flaw in its approval of the tribes’ application. “A failure to do so will likely lead to civil and criminal jurisdictional turmoil, irreparably harming the public interest,” he stated.

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