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Fed court won't re-hear tribal border case

Nov 7, 2017 By Daniel Bendtsen, Staff Writer

The 10th Circuit Court of Appeals will not revisit its February ruling that Riverton is not within the boundaries of the Wind River Indian Reservation.

The denial of the re-hearing was announced Tuesday.

A panel of three judges had ruled against an Environmental Protection Agency opinion that said Riverton was on the reservation.

That prompted the Eastern Shoshone and Northern Arapaho tribes to ask for an en banc hearing, meaning all judges on the 10th Circuit would weigh in on the case, not just three. The en banc hearing could have included more than a dozen judges.

The petition was circulated to all of the court's judges, but not one asked for a rehearing to be considered.

The tribes had retained a high-profile panel of attorneys to handle the re-hearing request.

Only one hope now remains to have the February decision overturned: a writ of certiorari that would ask the U.S. Supreme Court to take up the case.

The Supreme Court denies the vast majority of certiorari requests it gets each year. However, the requests are more likely to be granted in cases where a circuit court's judges are split on the case. That happened in the Riverton boundaries case, with Carlos Lucero the dissenting judge.

In the court's Tuesday announcement, both majority and minority opinions were revised slightly.

The tribes had argued that the internal conflict, along with the ruling's conflicts with rulings from other appellate courts, merits further judicial review.

The tribes also argued that the consequences the case could have in Fremont County, as well as the impact on similar boundary disputes, further necessitates a rehearing.

Attorneys for the state of Wyoming called the arguments for a rehearing "overblown" but agreed that "this case is of exceptional public importance to the thousands of Wyoming residents whose lives and livelihoods would have been disrupted had the panel upset the status quo."

The state's attorneys said the opposition "misrepresents the practical effect of the decision" in a "flourish of hyperbole."

In requesting the rehearing after last winter's decision, tribal attorneys claimed "(The 10th Circuit decision) infringes the sovereignty of the Eastern Shoshone and Northern Arapaho Tribes, hindering the tribes' power to tax, exercise criminal jurisdiction over tribal members, resolve child-welfare issues, and claim water rights," Waxman wrote in the Shoshone petition. "Finally, it has far-reaching implications because many other Indian statutes contain similar language,"

Waxman in particular argued that although the majority noted many conflicting precedents in passing, the judges down-played -- and sometimes ignored -- the relevance of certain case law.

"The panel's approach to many of these myriad pieces of contrary textual evidence was to dismiss each on the ground that it is insufficient by itself to preclude diminishment," Waxman said. "That 'divide-and-conquer' strategy ignores the Supreme Court's directive that surplus-land statutes be read as a whole."

Waxman said that a rehearing was also needed given the ambiguities around the case, noting a 1975 that in boundary disputes, "ambiguities are resolved to the benefit of the Indians."

The tribes have argued that internal conflict, along with the ruling's conflicts with rulings from other appellate courts, merits further judicial review.

The tribes also argued the consequential nature of the case in Fremont County, as well as the impact on similar boundary disputes, further necessitates a rehearing.

"(The 10th Circuit decision) infringes the sovereignty of the Eastern Shoshone and Northern Arapaho Tribes, hindering the tribes' power to tax, exercise criminal jurisdiction over tribal members, resolve child-welfare issues, and claim water rights," Waxman wrote in the Shoshone petition. "Finally, it has far-reaching implications because many other Indian statutes contain similar language,"

Waxman in particular argued that although the majority noted many conflicting precedents in passing, the judges down-played -- and sometimes ignored -- the relevance of certain case law.

"The panel's approach to many of these myriad pieces of contrary textual evidence was to dismiss each on the ground that it is insufficient by itself to preclude diminishment," Waxman said. "That 'divide-and-conquer' strategy ignores the Supreme Court's directive that surplus-land statutes be read as a whole."

Waxman said that a rehearing was also needed given the ambiguities around the case, noting a 1975 that in boundary disputes, "ambiguities are resolved to the benefit of the Indians."

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