Imagine learning the town you live in suddenly becomes part of an Indian reservation, subjecting you to tribal courts and laws rather than the U.S. Constitution. That’s exactly what is happening in Riverton, Wyoming.
President Obama’s Environmental Protection Agency (EPA) has thrown a hospital in Riverton, Wyoming (population 11,000), into an expensive and exhausting battle to extricate itself from the oversight of an American Indian tribal court. Riverton Memorial Hospital — a non-Indian entity organized under the laws of the state of Delaware — was recently sued by a member of the Northern Arapaho Tribe for medical malpractice in the Shoshone and Arapaho Tribal Court, the court for the Wind River Indian Reservation.
Normally, American corporations are sued in state or federal courts, not tribal courts — which are more or less the courts of a foreign nation. But the EPA has deemed a large swath of Wyoming “Indian Country,” including the town of Riverton. The hospital must now spend tens of thousands of dollars in a foreign court.
Not surprisingly, the tribal court has few rules and statutes and no published case law, rendering everything from basic procedural matters to substantive law to legal exposure unascertainable. Worse, because the tribal court impermissibly interprets its jurisdiction very broadly and imposes strict and onerous tribal exhaustion requirements, the hospital will have to litigate the medical malpractice case on the merits, and appeal to the tribal appellate court.
On May 27, the hospital sought to file a friend of the court brief with the U.S. Court of Appeals for the Tenth Circuit asserting that it offers a unique perspective on the actual impact of the EPA decision on a Riverton business in a way not possibly foreseen by the EPA.
This is not theoretical. This is happening right now to a hospital in a medical malpractice action. The hospital’s filing comes in a February 2014 lawsuit by the state of Wyoming and the Wyoming Farm Bureau Federation challenging the December 2013 decision by the EPA to treat the Eastern Shoshone Tribe and the Northern Arapaho Tribe “in a Similar Manner as a State Under the Clean Air Act.”
The EPA’s decision, however, did not just give the tribes authority to enforce the Clean Air Act on the Wind River Indian Reservation. It also declared over a million acres in west-central Wyoming, including the town of Riverton, as part of that reservation, that is, “Indian country.”
On what possible basis, responded Wyoming, could the EPA make such a decision?
It is well known that, although the reservation was established in 1868, in 1904 the tribes ceded 1.48 million acres to the United States in exchange for payments to tribal members and capital improvements. Furthermore, in 1905 Congress ratified the agreement, and over the decades Congress and various courts recognized that the lands were ceded and thus not “Indian country.” Finally, in 1988, a unanimous Supreme Court rejected a tribal attempt to void a similar agreement.
Although people in Wyoming blame the EPA, it was not the EPA’s fault but that of Obama’s top lawyer at the U.S. Department of the Interior, Hilary C. Tompkins.
Her opinion slavishly tracks the tribes’ application to the EPA, in which they spend 82 of 87 pages arguing that the nearly 1.5 million acres and Riverton are “Indian country.” That opinion became even more controversial when in April of 2015, Andrew Yellowbear, a Northern Arapahoe tribal member who was found guilty in a Wyoming court of murdering his daughter in Riverton, asked to filed a friend of the court brief in support of the EPA in hopes that if the EPA wins he will be set free. The Tenth Circuit, at the request of one of the tribes, rejected his brief. It appeared the EPA had dodged an emotional bullet on the unintended but very real human consequences of its decision.
Now comes the hospital’s motion to file, its accompanying hard-hitting 21-page brief, and 261 pages of exhibits. It appears Solicitor Tompkins has some explaining to do.