“It will be a very hard thing to leave the country that God gave us. Our friends are buried there, and we hate to leave these grounds.”
— Little Raven, Arapaho leader
“The United States did not have power to give to others or to appropriate to its own use any part of the land without rendering, or assuming the obligation to pay, just compensation to the tribe, for that would be not the exercise of guardianship or management, but confiscation.”
— United States v. Shoshone Tribe of Indians, 1938
Two weeks ago, I had the opportunity to head briefly to Washington, D.C. for my first meeting of the Federal Advisory Commission on Juvenile Justice. In and amongst discussions about juvenile policy, federal regulations, and state funding, I had the chance to meet other members of the committee from Maine to Minnesota, and Wisconsin to Wyoming.
During a break, a discussion with the member from Wyoming turned to an ongoing dispute between two Native American tribes that has resulted in numerous lawsuits over more than a century, including several that have been filed in recent years and remain active. The history is much longer than can be recounted here, but makes for a fascinating snapshot of the federal government’s management of Native American affairs.
The reservation that has spurred all this legal action is now known as the “Wind River Reservation,” but it was first established in 1868 as was the “Shoshone Reservation” when the Eastern Shoshone Tribe was forced out of prior territory in Montana and other parts of Wyoming. Around that same time, the Northern Arapaho were being forced out of its previous lands by the Colorado gold rush. Unsure of what else to do with them, the U.S. government “temporarily” placed them on the Shoshone reservation in the winter of 1879.
One hundred and forty years later, they remain there. This arrangement would be problematic enough on its own, but it was made far worse by the fact that the Shoshone and the Arapaho were traditional enemies. Complicating matters even further, the Shoshone had legal claim to the land as a result of the Fort Bridger Treaty, but the Arapaho were there without any legal status.
The situation remained largely unchanged for six decades until the United States Supreme Court’s 1938 ruling in United States v. Shoshone Tribe of Indians. In the decision, the court held that the United States could not simply split the reservation between the Shoshone and the Arapaho without compensating the Shoshone for the land that was being taken from them. While a legal victory for the Shoshone tribe, the case also led to the Arapaho having legal status on the land for the first time.
In order to manage the joint nation, the two tribes maintained separate governments but formed a joint tribal council. That situation worked until 2014 when the Arapaho attempted to dissolve the council. The Shoshone, in response, continued to operate the panel and simply made decisions about mineral leases, staff hiring, and interactions with the federal government on their own. The Arapaho then brought a lawsuit in federal court against the Shoshone for making those decisions and against the U.S. Bureau of Indian Affairs for allowing them to.
At the same time, the Arapaho and the Shoshone were both suing the state of Wyoming over a 1905 act of Congress, and whether that act simply affected mineral rights, or whether it actually reduced the size of the reservation by shrinking its northern boundary. That matter was resolved in 2018 when the federal courts ruled in favor of the State of Wyoming.
The constant presence of legal action between the tribes, even now nearly a century and a half after they were forced together, is a fascinating legacy of post-Civil War Native American relations. A nearly century old Supreme Court case means that these traditional enemies have no choice but to continue to coexist and, at times, to turn to our federal court system to settle disputes and uphold treaty obligations.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas.