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Why The Supreme Court's McGirt Decision Resonates On The Wind River Reservation

Aug 12, 2020
Originally published on August 11, 2020 4:18 pm

Lately I've been spending my Wednesday mornings in Riverton City Park. With COVID-19 cases on the rise, it's safer to interview people outdoors, and I've been asking everyone I run into the same question: Is Riverton, Wyo., on the Wind River Reservation?

A lot of people aren't sure. But 17-year-old Darious Tillman has a strong opinion. 

"Well, we should be," he says. "A lot of people would say no, we're not. But yeah, we're on the reservation."


Tillman is Eastern Shoshone and Northern Arapaho, and he's lived in Riverton his whole life. He says most of the white kids he's grown up with feel entitled to the land we're sitting on.

"I'm not a fan of it, but there is an attitude that this is theirs, which I find funny," he says.

Funny because his ancestors have been here a whole lot longer. But Tillman doesn't blame his classmates. He says he never learned about the history of Riverton in school either. He's had to research it on his own. 

"One of the main things that I keep reading is that Riverton is land ceded from the Wind River Reservation, and that is such a strange way to put it," he says.

Because for Tillman, "ceded" implies that the tribes had a choice.

Wes Martel, an Eastern Shoshone tribal elder, puts it more bluntly: "They say that all that land was disestablished, which is a bunch of crap." 

In 1868, the federal government set aside three million acres here for the "absolute and undisturbed use and occupation" of Shoshone people. By 1905, the U.S. Army had also placed another tribe there, the Northern Arapaho. There wasn't enough food to go around. So when the feds offered to facilitate the sale of some parcels on the reservation to white settlers, tribal leaders took the deal. 

Martel says they did so under duress. 

"You know, that's another dastardly deed in the history of the Wind River Reservation – you know, starve people so they have to submit," he says.

But Martel says that 1905 agreement didn't diminish the Wind River Reservation. It just allowed for white settlement within its existing boundaries. He cites as proof the fact that the federal government itself never paid for the land. It just agreed to facilitate sales. 

In 2016, the tribes made the same argument in federal court, and lost. They appealed all the way to the U.S. Supreme Court, which declined to hear the case. 

Fremont County Attorney Patrick Lebrun says that should have put this issue to bed. He points to Congress's language in formalizing the 1905 agreement. 

"The language that was used clearly indicated diminishment," he says. "In other words, the reservation was gone, they just weren't going to get paid for it immediately, just as it was sold in the future." 

Riverton Mayor Richard Gard agrees. He doesn't think this debate is worth rehashing, and he's not shy about telling me so. 

"The opinion of the populace really doesn't matter, does it? Even if the man on the street has an opinion, that's all he has is an opinion. He doesn't have any placement. So to continue to pick at this, this has been decided on more than one occasion by the courts," Gard says.

But since the Wind River ruling, Neil Gorsuch, a Westerner, joined the Supreme Court. He has a deep knowledge of federal Indian law. It was Gorsuch who wrote the majority opinion last month in McGirt v. Oklahoma, stating that it takes a clear act of Congress to diminish the boundaries of a reservation. 

Angelique EagleWoman, a professor of Indian law at the Mitchell Hamline School of Law in Minnesota, says that in the Wind River case, the congressional language was not clear. 

"Reading in inferences to the 1905 act is the only way the majority got to their decision, and to me that is unjust, an error and should be corrected," EagleWoman says.

She says the Oklahoma ruling sets an important precedent: When there's ambiguity in these sorts of cases, courts have to err in favor of tribes. 

"This decision is a wakeup call to state governments and local municipalities that treaties are going to be taken seriously – as they always should have been – by the U.S. Supreme Court," EagleWoman says.

Right now, Eastern Shoshone and Northern Arapaho tribal leaders have their hands full fighting the novel coronavirus. Still, they're taking a hard look at the McGirt v. Oklahoma decision. 

Exactly what the decision means for Wind River and the city of Riverton won't be clear unless and until the tribes take their case back to court. Tribal members like Darious Tillman hope their leaders will make that a priority. 

"This is a new generation, and we need to re-look at that history and determine what needs to be done so that the people here, especially the Indigenous people, can be successful," Tillman says. 

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.

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