REGULATION OF NATURAL RESOURCES AND LAND

TITLE XI

REGULATION OF NATURAL RESOURCES AND LAND

CHAPTER 1

REGULATIONS OF THE WIND RIVER TAX COMMISSION

Section 11-1-1

General Provisions

(1)

Purpose. The Wind River Tax Commission is empowered to administer the tax

laws of the Shoshone and Arapaho Tribes of the Wind River Reservation and, to that end, to

adopt the rules and regulations, substantive and procedural, as may be necessary, proper and

efficient to administer such rules and regulations.

(2)

Definitions. For the purpose of these regulations, the following words and

phrases are defined as follows:

a)

Area rate. The gas price designated by the Commission to be applied for

each calendar quarter, calculated from the highest prices paid or offered in a geographic

area for the majority of similar production. The Commission will publish the quarterly

rate, which may be revised from time to time, as additional data becomes available. The

area rate shall be the highest price paid for a majority of like quality production that price

at which more than fifty percent (50%) of the current production from the area is sold.

When production and sales are diversified, this value will be established as the weighted

average value obtained by taking a summation of percentages, in descending price order,

that totals more than fifty percent (50%) of the total production from the area;

b)

Commission. The Wind River Tax Commission;

c)

Entitlements. The amount of gas that a purchaser is entitled to;

d)

Gas balancing. The process by which persons having an interest in

production from a well, unit or reservoir monitor and adjust their take therefrom to

ensure that each such person receives his proportionate share;

e)

Geographic area. The region in which oil and gas products are

characterized by similar quality and economic factors, and which is, to a large extent,

market-determined. Unless the Commission otherwise determines, the Wind River and

Big Horn basis shall be considered geographic areas;

f)

Joint Business Council. The Joint Business Council of the Shoshone and

Arapaho Tribes;

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g)

Lease. Any agreement conferring to persons rights to use or possess

reservation lands or for severance therefrom, including, but not limited to, a lease, rightof-way, use permit, or joint venture, or operating agreement;

h)

Market value - oil. The greater of:

i)

the highest posted price in the geographic area after adjustment for

oil gravity; and

ii)

i)

the gross proceeds received by the taxpayer;

Market value - gas. The greatest of:

i)

the highest maximum lawful price;

ii)

the actual gross proceeds; or

iii)

the area rate price;

j)

Person. Any individual or group or combination of individuals acting as a

unit, however associated; any organization of any kind, whether organized for profit or

not, and regardless of the manner of form in which it does business, whether as a sole

proprietorship, receiver, partnership, joint venture, trust, estate, firm, unincorporated

association, corporation, or government including, but not limited to, any part,

subdivision, or agency of any of the foregoing; and any combination of individuals or

organizations in whatever form, and the plural as well as the singular number;

k)

Operator. The person designated by the U.S. Department of Interior as the

lease operator;

l)

Product. Oil, natural gas, natural gas liquids, liquid hydrocarbons, or solid

hydrocarbons, individually or in any combination thereof, carbon dioxide, or any other

mineral;

m)

Reservation. The Wind River Reservation as defined in Section VI;

n)

Severance. The taking of any product in, on or under the soil, in any

manner whatsoever within the reservation;

o)

Takes. The amount of production actually taken by a purchaser. The

failure of pipelines to take gas in the same ratio as their sellers* interest in the production

results in a take imbalance;

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p)

Tax. The tax, Ordinance No. 39, as amended, imposed by the tribes for

the privilege of doing business related to severance;

q)

Taxpayer - nonoperator. A party with an economic interest in the well

that is not the designated operator of the well. Due to a marketing arrangement separate

from the operator*s, this party may be required by the Commission to make severance

attributable to the marketing arrangement;

r)

Taxpayer - operator. The operator of the lease who directly is responsible

to pay the taxes;

s)

Tribal formation. Any or all geologic subsurface horizons within the

reservation; and

t)

Tribes. The Shoshone and Arapaho Tribes of the Wind River

Reservation;

(3)

Liability for Taxes

a)

Taxes assessed or due and owing are the liability of the taxpayers;

b)

As a matter of policy, the operator is normally responsible for timely filing

of the tax returns and submission of one hundred percent (100%) of the taxes due for

each well, lease, or production unit that it operates. However, the lessee, operator,

producer, and buyer of any severed product, or the owners of interests in a lease, shall be

jointly liable for payment of the taxes with respect to the lease and shall be severally

liable for such taxes in proportion to their interests in the lease. Such persons are

authorized to deduct all taxes paid before making any distribution of the proceeds from

the production. The Commission, at its discretion and with the consent of all such

owners, may relieve one or more of them from personal liability, if it determines that the

taxes are adequately secured by the lease, the personal liability of remaining owners, or

any bond it may require to be posted;

c)

If a taxpayer is a corporation or a trust or a part thereof, the corporation or

trust shall be liable for the taxes. If the taxpayer is an association, joint venture, or

partnership, or a part thereof, then all associates, participants, or partners, both general

and limited, shall be jointly and severally liable for the taxes;

d)

Subject to alteration by agreement between them, any owner, associate,

participant, or partner shall have a right of contribution from any other owner, associate,

participant, or partner for its proportional share of taxes paid; and

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e)

With the prior written approval of the Commission, or upon notification

by the Commission, a person may be designated as a taxpayer-nonoperator. This

designation may be warranted if the nonoperator has negotiated a separate purchase

agreement. Once taxpayer-nonoperator status is granted, the taxpayer-nonoperator will

be responsible for tax reporting and payment in accordance with these regulations.

Section 11-1-2

Commission Organization

(1)

Duties. The Commission will oversee tax policy and administration of tax laws;

will present to the tribes its recommendations regarding the revenues and fiscal policy of the

tribes; will submit to the Joint Business Council proposed resolutions to lay and collect taxes;

will evaluate tax refund requests and make recommendations for resolution by the Joint Business

Council; and will adopt such other rules and regulations as it deems necessary to interpret and

execute its authority, to interpret and enforce the tax laws, to establish the manner and means for

compliance with such laws, and to set forth the requirements for the administration of taxes and

the general tasks and responsibilities of the Commission. The Commission shall establish the

guidelines and procedures for the exercise of its power to attach and seize assets and for the

performance of its other collection duties in an effective manner comporting with due process;

for the exercise of investigative authority and for the conduct of inspections, examinations and

audits; and for conducting its business, administering the tax laws, organizing and operating its

offices, and effectively discharging its duties and responsibilities.

(2)

Composition. The Commission is composed of four (4) members, one (1) of

whom must be a member of the Shoshone Tribe and one (1) of whom must be a member of the

Arapaho Tribe. The Shoshone Business Council and the Arapaho Business Council each shall

select two (2) Commissioners, subject to confirmation by the Joint Business Council. Each

commissioner shall serve a term of office of four (4) years, provided that, in order to stagger the

expiration of terms of office, one of the original Commissioners shall be appointed for a term of

one (1) year, one for a term of two (2) years, one for a term of three (3) years, and one for a term

of four (4) years.

(3)

Vacancy. A vacancy in the Commission, however caused, will be filled by a

similar selection and confirmation procedure, provided that any appointment which does not

begin coincident with the staggered terms will be shortened as necessary to maintain the pattern

of staggered expirations.

(4)

Quorum. Business of the Commission will be conducted by a quorum of its

members at meetings duly called by its presiding officer. A quorum consists of three (3)

commissioners, and any substantive action must be taken by the affirmative votes of at least

three (3) commissioners.

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(5)

Presiding Officer. The commissioners shall select a presiding officer from among

themselves. Any substantive action of the Commission must be recorded in a resolution certified

by the presiding officer or signed by at least three (3) commissioners voting for that action.

(6)

Director of the Tax Office. The Commission hereby creates the position of

Director of the Tax Office and delegates to the Director of the Tax Office authority to administer

the tax laws of the tribes according to the regulations and general instructions of the

Commission. The Director of the Tax Office shall exercise the powers granted to him, shall

employ or engage those persons qualified by education and experience necessary to discharge

the duties of the office, and shall delegate authority and duties among such persons.

(7)

Promulgation of Regulations. Following formal adoption of a proposed

regulation by the Commission, the regulations will be promulgated pursuant to these rules:

a)

Regulations will be effective only upon the publication of a notice;

b)

Publication of a notice requires publication in the legal section of the

Casper Star Tribune newspaper at least once a week for three (3) consecutive weeks and

further requires a mailing of the notice to designated individuals or taxpayers. The notice

shall identify or otherwise describe the terms and conditions of the new regulation;

c)

A regulation will become effective thirty (30) days after the first

publication of notices or on the date otherwise specified therein;

d)

A copy of the regulations will be filed and made available for public

inspection at the Office of the Director of the Tax Office at the following address: P.O.

Box 830, Fort Washakie, Wyoming 82514; and

e)

The Commission may, but is not required to, publish proposed regulations

in order to provide interested parties an opportunity to comment. Notice of the proposal

will be published and the text made available as described herein above. The notice will

invite written comments and give a deadline for their submission not less than thirty (30)

days after the first publication of notice. The Commission may, but is not obligated to,

hold a public hearing; in that event, it will announce the time and place at which oral

testimony will be heard.

(8)

Confidentiality. It shall be unlawful for an employee or former employee of the

Commission to reveal to any individual, other than an employee or legal counsel of the

Commission, any information contained in the return of any taxpayer or any other information of

any taxpayer acquired as a result of the employee*s employment by the Commission, except:

a)

To any authorized representative of the taxpayer;

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b)

To an employee or representative of the tribes or a member of either tribal

council authorized by the Commission to obtain such information for use in connection

with the governmental function of said employee, representative or council member,

provided that it shall be unlawful for the employee, representative or council member to

reveal said information except as permitted herein;

c)

To an authorized representative of another Indian tribe or state, provided

that the receiving tribe or state has entered into a written agreement with the Commission

to use the information for tax purposes only and that the receiving tribe or state has

enacted a similar confidentiality rule;

d)

To an authorized representative of a federal agency according to the terms

of a reciprocal agreement for the exchange of information;

e)

In any administrative or judicial proceeding to enforce any act or collect

taxes or in any matter in which the taxpayer has put its own liability for taxes at issue;

f)

In compliance with an order of any court of competent jurisdiction in

which the information sought is material to the inquiry;

g)

In recording tax liens on the property of a taxpayer or collecting taxes by

levy upon the property or rights to property of a taxpayer;

h)

In statistical releases which do not identify a specific taxpayer or

otherwise disclose the information therein as being applicable to any single taxpayer;

i)

To the extent of revealing whether a taxpayer has made a designation

(and, if so, the name and address of that individual) or whether a person is a designee

(and, if so, by whom the individual has been designated);

j)

To the extent of revealing the amount and basis of unpaid taxes to the

purchaser or intended purchaser of the property or business of the taxpayer; or

k)

Any employee, representative or council member who violates any of the

provisions herein shall be subject to a fine of no less than $50.00 or suspension for no

less than thirty (30) days, or both. The Commission may, by further ruling, restrict the

disclosure of information and establish procedures for compliance herewith.

(9)

Examination. For the purpose of determining the correctness of any report or

payment of taxes or the liability of any person for taxes or the liability of any transferee of

fiduciary of any person for taxes, or of collecting any liability, the Commission may make

inquiry and may examine any books, records, papers, maps, documents, or other data which may

be relevant and material to the inquiry. The Commission may also summon the person liable for

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the tax, or any officer, employee, or agent of the person, or any person having possession,

custody, or care of books of accounts containing entries related to the business of the person

liable for tax, or any other person the Commission may deem proper, to appear before the

Commission to produce such books, records, papers, maps, documents, or other data and to give

such testimony under oath as may be relevant or material to the inquiry.

(10) Notice. Notice required to be given by the Commission may be effectively given

to a taxpayer by mailing the notice to the individual last designated by the taxpayer at the

address shown on the designation. Where the taxpayer has not designated an individual, notice

may be effectively given by mailing the notice to any owner of an interest in the lease or any

other person who is a lessee, permitee, or assignee of property on which the productive activity

at issue is conducted, or to a person holding a permit or a license for conduct of such activity.

The foregoing is not intended to exclude the use of other methods of providing notice,

including publication, provided that such methods comport with due process. Public notice of a

lien will be effective as to all property and rights to property of a taxpayer, business, or person if

the description of the taxpayer, business or person is sufficient to put a reasonable person on an

inquiry to ascertain the existence of a lien on the property.

Tax, Reports, and Collection

Section 11-1-3

(1)

Tax. Any person engaged in the business of severance on the reservation shall be

taxed for the privilege of doing business at the rate equal to the rate then imposed by all nontribal taxing entities within the State of Wyoming (including severance/production, ad valorem

and conservation) plus the rate of tax imposed by Ordinance No. 39, as amended, with respect to

all product from lands within the boundaries of the reservation except for product meeting the

criteria for exemption from taxation as set forth by Section 2 of this part. A credit shall be issued

for an amount equal to the amount of state taxes described in Ordinance 39, as amended, herein

paid, unless and until such amount is found by a court of competent jurisdiction to be collected

unlawfully, in which case, such amount shall be due and owing to the tribes.

(2)

Special Computation Provisions. For computation of the tax, the following

information applies:

a)

For natural gas, gas reinjected into a tribal formation is exempt from tax;

b)

For natural gas, gas utilized in lease operations is subject to the tax;

c)

In the case of Gas Balancing Arrangements, the volumes utilized will be

based on Takes and not Entitlements;

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d)

Taxes are due on payments received from purchasers in settlement of take

or pay obligations, or any other purchase contract modification, by the next due date

following the month of receipt;

e)

In the case of oil, tax will be calculated for the month the oil is sold or

transported off the reservation (versus production). In cases of inventory or production

losses, such losses should be treated as a sale in the month of occurrence;

f)

The taxes imposed hereby are not applicable to any tribal interests in

severed products or to the royalty interest of any Indian under the jurisdiction of the

tribes in such products;

g)

No tax is due on product lawfully produced in connection with the drill

stem test, well potentials and other tests as approved by the Department of Interior

authorities. This exemption is valid for up to thirty (30) days from completion or

recompletion; and

h)

No tax is due on product lost as a result of a natural disaster.

(3)

Reports. Any taxpayer-operator or taxpayer-nonoperator engaged in the

production of oil and gas on the reservation shall file quarterly reports for the preceding calendar

quarter on or before February 15, May 15, August 15, and November 15 of each year. Sample

reports are included in Part VI. Those report formats or computer-generated facsimiles must be

utilized. In general, the reports shall describe or identify:

a)

The lease or contract under which the product is produced and the name

and address of the taxpayers;

b)

The gross amount of product produced and saved from each well, by

c)

The price or value base on which royalties were computed by month; and

month;

d)

The total amount of production reported and the royalty paid to the United

States on behalf of the tribes in accordance with the regulations of the Department of the

Interior, or paid to the tribes under contracts with the tribes.

(4)

General Information. The Commission may require of any and all persons who

own interests in a lease and who are engaged in business activity on the Wind River Reservation

or are otherwise subject to the jurisdiction of the Commission such information as the

Commission may deem relevant and material. Upon a written request and after adequate

opportunity to comply, those persons must provide the information required.

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(5)

Information and Report Forms. Information and report forms required by the

Commission to be filed will be provided by the Commission, and any information to be included

in or filed with the reports will be described in instructions and other rules. Additional

information may be required sufficient to establish the qualification for any exclusion, sum or

deduction claimed, or to disclose the detail of transactions. Each tax return should be

accompanied by the following information for the documents for production months reported on:

a)

Bureau of Land Management Form 3160-6 (Monthly Report of

Operations);

b)

Minerals Management Service Form 2014 (Report of Sales and Royalty

Remittance);

c)

Gas contracts, when approved or amended;

d)

From time to time, additional information may be requested. Specific

items include, but are not limited to:

(6)

i)

meter chart integrations;

ii)

run tickets;

iii)

plant statements; and

iv)

remittance advices.

Place and Manner of Filing and Payment

a)

All filings must be delivered to the Office of the Director of the Tax

Office or be mailed to:

Wind River Tax Office

Office of the Director

Tribal Office Complex

Fort Washakie, Wyoming 82514;

b)

All payments must be delivered to the designated financial institution for

receipt of such payments. The designated financial institution is currently First Interstate

Bank, Riverton, and listed below are the forwarding instructions for wire transfer or mail

deposits.

i)

deposits by wire transfer:

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Shoshone and Arapaho Tribes

Severance Tax Collection Account

First Interstate Bank of Riverton

P.O. Box 233

Riverton, Wyoming 82501

Attn: Myrna Sammons

ABA#: 1023-0194

Account#: 503-294-1

ii)

deposits by mail:

Shoshone and Arapaho Tribes

Severance Tax Collection Account

First Interstate Bank of Riverton, N.A.

P.O. Box 233

Riverton, Wyoming 82501

Attn: Marlys Reddon

Account#: 503-294-1;

c)

Taxes shall be paid monthly, on or before thirty (30) days after the end of

each production month. For example, the tax for June productions is due on or before

July 30. Estimated tax payments are permissible, however, estimates must be adjusted to

actual by the time the quarterly report is due and there will be penalty for under payments

in excess of ten percent (10%);

i)

any check or other remittance must be made payable to the order

of the Arapaho and Shoshone Joint Severance Tax Account. Payments received

by the Commission will applied first in satisfaction of any penalty, then in

satisfaction of interest, and finally in satisfaction of the tax due. The Commission

will report to the taxpayer the application made and the resulting status of the

taxpayer*s accounts and will issue a notice of assessment for any unpaid tax or

interest; and

ii)

a taxpayer who believes he has overpaid a tax may, within one (1)

year of the overpayment, provide a written request for refund (with proper detail

and support) from the Commission. The Commission will review and approve

the request, and at its discretion, may issue a refund check or apply the amount to

current or future tax liabilities. If an overpayment has been made, the

Commission shall credit the amount to any taxes due from the taxpayer for the

current period, or refund the overpayment to the extent it is not applied to a tax

obligation.

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(7)

Extension

a)

A taxpayer may file a written request for a one (1) month extension of the

time for making payment, providing that:

i)

the request identifies the taxpayer, return, and assessment date or

period, and includes a statement of cause;

ii)

the request is filed at the place and by the time for filing the return

or making the payment; and

ii)

the taxpayer pays, with the request, an amount equal to the tax

liability due for the previous period or at least ninety percent (90%) of the tax due

with the extended return;

b)

The balance of the tax due and the accrued interest must be paid on the

extended date for filing the return; and

c)

In its discretion and for good cause shown, the Commission may grant

additional extensions of time up to three (3) months on the basis of a written request filed

before an extended due date. The Commission may require the payment of an estimated

amount of tax or condition the grant of an extension of time to pay upon the posting of a

bond or provision of other security or the creation of a lien.

(8)

Due Dates. The following regulations will apply in the determination of due

dates and time determinations:

a)

Due dates are those specified herein or in the instructions, forms, and

notices of the Commission. If a due date falls on a weekend or a legal holiday, the due

date will be extended until the following working day. Tribal holidays are the same as

United States federal holidays with the exception that Columbus Day is not recognized;

and

b)

(9)

The date of the action is determined by the date received by the bank.

Interest Rates

a)

Interest is imposed at the rate of twelve percent (12%), the per annum

uncompounded on any unpaid tax and is computed from the due date (without regard to

any extension or stay of time) until the date payment is actually received. The interest

will escalate to eighteen percent (18%) per annum uncompounded when an unpaid tax is

ninety (90) days overdue; and

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b)

Interest will not be remitted to a taxpayer for any overpayment of tax.

(10) Designation of Agent. Each taxpayer must designate and provide the mailing

address of a natural person for the purposes of notice, together with such other instructions as

may be required by form and instructions:

a)

An owner of an interest in an oil and gas lease, who is not the operator and

not a designated taxpayer-nonoperator, must designate the individual designated by the

operator; and

b)

A taxpayer may also name a few other individuals, not for the purpose of

notice but for information, to receive the tax publications of the Commission. The

Director will keep a reasonably current list and will be diligent in mailing to such

individuals notices, regulations, rulings, instructions, and other information in a timely

manner.

(11)

Noncompliance Penalties

a)

Penalties for Failure to File. If a taxpayer fails to file a return by the due

date, a penalty of ten percent (10%) of the tax due, but not less than $100.00, will be

assessed against the taxpayer. An additional penalty of one percent (1%) of the tax due,

but not less than $100.00, will assessed for each full month the return is overdue. The

additional penalty will not, except as to the minimum amounts, exceed twenty-four

percent (24%) of the tax. A return filed on or before an extended date for filing is

considered to be timely filed;

b)

Penalties for Failure to Pay. If a taxpayer fails to pay an amount of tax by

the due date, a penalty of five percent (5%) of the amount of the underpayment will be

assessed. An additional penalty will be assessed of one-half percent (½%) of the

underpayment for each full month payment is overdue, but will not exceed thirty-six

percent (36%) of the underpayment. An amount paid on or before an extended date for

payment is considered to be timely paid.

c)

Penalties for Attempt to Evade or Defeat Tax

i)

any taxpayer who understates tax owed, either through negligence

or intentional disregard of the rules and regulations, but without the intent to

defraud, will be assessed a penalty of $250.00, plus twenty-five percent (25%) of

the underpayment of tax;

ii)

if any part of an understatement of tax is shown to be due to fraud,

the taxpayer will subject to a penalty of $25,000.00 plus three hundred percent

(300%) of the underpayment of tax; and

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iii)

any person who assists a taxpayer in such a fraud will be subject to

a penalty of $1,000.00 plus fifty percent (50%) of the underpayment of tax. Any

liability arising under this subparagraph shall be assessed and collected as a tax

imposed hereby;

d)

Penalties for Failure to Provide Information. If a taxpayer fails to provide

information required or requested within sixty (60) days of written notice, a penalty of

$10,000.00 will be assessed against the taxpayer. An additional $1,000.00 per day will

be assessed for each day after sixty (60) days that the request or requirement remains

unfulfilled. Extensions of this time period without penalty may be granted by the

Commission. An extension for time must be requested in writing stating the reasons for

delay;

e)

A taxpayer failing to pay any taxes at the time due may be charged for

extraordinary administrative costs incurred in collecting the unpaid amount, including

attorneys* fees, expert witness fees, and other costs of collection. Upon determining any

charges for costs, the Commission will issue a Notice of Assessment to the taxpayer; and

f)

Any person obligated to pay a tax, to make a designation, to file a return,

to provide information, documents, access thereto or to property, to furnish a surety bond

or other security, or to comply with the lawful order of the Commission, and failing to do

the same, may have its rights to engage in productive activity on the Wind River

Reservation suspended until compliance is made.

(12)

Unlawful Acts

a)

It is unlawful for any person:

i)

forcibly, or by bribe, threat, or other corrupt practice, to obstruct or

impede the due administration of any tax;

ii)

to commit fraud, or knowingly to assist another in the commission

of fraud, with the intent to evade or defeat the assessment or collection of any tax,

interest, or cost imposed or assessed; or

iii)

with knowledge and intent, falsely to verify by written declaration

any return, form, or other document;

b)

Any Indian who commits any of the above unlawful acts shall, upon

conviction thereof, be sentenced to a term of imprisonment not to exceed one hundred

eighty (180) days, or ordered to pay a fine not to exceed $500.00, or both, in accordance

with the provisions of the tribal code;

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c)

Any non-Indian who commits any of the above unlawful acts may be

excluded from the Wind River Reservation; and

d)

Any person who commits any of the above unlawful acts, or whose

employees or agents in the course of their employment or agency commit any of the

above unlawful acts, may have its rights to engage in productive activity on the Wind

River Reservation suspended, either temporarily or permanently.

(13) Suspension and Fraud Proceedings. Suspensions and the money penalties for

negligence and fraud will be imposed only by resolution of the Commission and upon a notice to

the taxpayer, providing a time when the taxpayer may appear before a hearing officer to show

cause why suspension or penalties should not be imposed. The time for the hearing shall not be

less than fourteen (14) days after the date of the notice. The hearing officer will submit findings

of fact, his recommendation, and the hearing record to the Commission. Enforcement or

collection is stayed until the Commission makes its determination.

(14)

Collection Procedures and Statutes of Limitations

a)

The Commission has full power to collect any taxes assessed or owing,

including the power to attach and seize the assets of a taxpayer or any property subject to

lien, and to exercise any other powers available to the tribes for collection of debts owed

them. The Commission may request of the proper authority that a suit or other

enforcement proceeding be brought in any court of competent jurisdiction, provided that

bringing of suit or an enforcement shall not constitute a waiver of sovereign immunity,

and further provided that the Commission shall never be compelled to assert a claim for

taxes in litigation by way of counterclaim or otherwise;

b)

All taxes, interest, costs, and penalties assessed are a debt due and owing

the tribes from the taxpayer or other person. If a debt is not paid when due, the

Commission may, in addition to its other remedies, maintain an action for itself against

the delinquent party for the collection of the liability, cost, and other lawful charge

thereon. In such action, the Commission will have the benefit of all the laws which

provide remedies against property or rights to property, real or personal, of the person

liable for the debt;

c)

Any taxes not paid by the due date and in the absence of a stay are

collectible as of that date without further notice; and

d)

The assessment and collection of the taxes imposed hereby must proceed

within the period of limitation established under the circumstances set forth below:

i)

any unpaid tax must be assessed within nine (9) years after the

return was filed;

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ii)

no period of limitation will apply to false or fraudulent returns

filed with the intent to evade tax;

iii)

no period of limitation will apply in cases in which no return has

been filed; and

iv)

collection of a tax, whether by action in a court or by levy for the

collection, must begin within nine (9) years of the due date of the tax:

a.

these periods of limitation will apply in a corresponding

manner to a collection of related interests and costs; and

b.

the running of any period of limitation is suspended during

any time that the Commission is barred from collection, that said

collection is prohibited by any court, that a determination of the

Commission is on appeal, or if the taxpayer and the Commission agree to

such suspension of the period of limitation.

Section 11-1-4

Administrative Actions and Appeals

(1)

Assessment Powers. The Commission is empowered to determine and assert

against a taxpayer liability for tax, interest, or costs in the following circumstances:

a)

Deficient Amount of Tax. When it appears that a return filed, or a

payment made, does not reflect the amount of tax due, the Commission will issue a notice

of assessment of a deficiency, interest, and penalties;

b)

Estimated Amount of Tax. When no return has been filed, the

Commission is authorized to estimate the tax due and issue a binding notice of

assessment of the tax, interest, and penalties. The assessment may be redetermined only

through an appeal pursuant to Paragraph 1 and upon a showing that the assessment

clearly is erroneous;

c)

Failure to Provide Information. If a taxpayer fails to provide information

within its possession or control which is relevant to a determination of any tax due, and

which is required to be provided under these regulations, the Commission is authorized to

proceed to make an estimate of the tax due and issue a binding notice of assessment of

the tax, interest, and penalties. The Commission will make the estimate on the basis of

the best information it finds readily available. Unless for good cause shown that relieves

the taxpayer from this subparagraph, the Commission*s assessment is binding and may be

redetermined only through an appeal and upon a showing that the estimate, on the basis

of the Commission*s best information when it was made, clearly was erroneous; and

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d)

Overpayments. When it appears that a taxpayer has made an

overpayment, the Commission will issue a notice of determination and remit a refund. A

taxpayer may file a claim for refund of an overpayment.

(2)

Examination Procedure. Upon completion of the examination of a taxpayer, the

Commission will provide the taxpayer with a written statement of findings for any determination

which alters a liability for tax, interest, or penalties, and will issue a notice of assessment (or

refund) for any amounts due (or overpaid). If no such determination is made, the Commission

may issue a letter stating that there is no change for the assessment date or period examined.

(3)

Notice Requirements. A notice of assessment (or refund) will require the

payment of the amount assessed (or remittance of the refund) not less than sixty (60) days after

the date of the notice. The taxpayer must comply with (or accede to) the terms of the notice and,

within the time allowed in the notice, may request a redetermination under paragraph 1 5 of this

part. Within the same time, a taxpayer also may seek an informal conference under paragraph H

8 of this part.

a)

Occasions for Notice. A notice of assessment may arise from an initial

assessment of tax, from an estimate of the tax due when a required return has not been

filed, from a deficiency in the amount of tax reported or paid determined upon

examination of a declaration, or from an application of interest, penalties, or charges for

costs;

b)

Assessment Binding. These assessments are binding on the taxpayer

according to the terms of the notice; and

c)

Overpayment. When it appears that a taxpayer has made an overpayment,

the Commission will issue a notice of determination and remit a refund.

(4)

Security for Payment. Whenever necessary to secure payment of any taxes due or

reasonably expected to become due, the Commission is authorized to require the taxpayer to

furnish an acceptable surety bond in an appropriate amount, payable to the Commission and

conditioned upon the payment of the taxes therein identified, no later than the date on which the

liability becomes conclusive, or to furnish other acceptable security in an appropriate amount,

and to require the taxpayer to furnish additional security as it becomes necessary.

(5)

Procedure for Refunds. Any taxpayer who has made an overpayment may, within

one (1) year after the overpayment was made, file a written claim for refund with the

Commission, except that no claim for refund need be filed if the basis therefor already has been

established under an abatement or asserted in an appeal under this chapter, and provided that an

issue determined in such an appeal may not be reopened by filing a claim for refund.

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a)

Government Action. If an overpayment arises from an action of a tribal,

federal, or state agency, or any court other than in an appeal under this chapter, wherein

the action changes the factual basis upon which the tax was determined and paid, the time

for filing a claim for refund will be one (1) year from the date of such action;

b)

Amended Return. A claim may take the form of an amended return for

the period for which the overpayment was made. The return must contain a clear

statement of the amount of the refund being claimed and the facts or other basis for

determining an overpayment;

c)

Appeal. The Commission will determine overpayments and claims for

refunds according to its procedures. If a claim is denied in whole or part, the taxpayer

must appeal pursuant to paragraphs H or I 13 or 14 of this part;

d)

Determination. If the Commission determines, either on a claim for

refund under this paragraph or in an appeal on a claim or from an assessment, that the

taxpayer has made an overpayment, and no appeal is taken, the Commission shall refund

(or credit) the overpayment to the taxpayer, provided, however, that if the basis of the

claim is that the taxes were imposed illegally, the decision of the Commission to refund

shall be subject to paragraph G 3 of this part;

e)

Order of Joint Business Council. Where the action of the Commission on

a claim for refund under this paragraph, or in the appeal on a claim or from an

assessment, is then appealed, the Commission shall make a refund of the overpayment

determined by the order in that appeal;

f)

Application to Unpaid Taxes. If the taxpayer entitled to a refund owes

unpaid taxes, the refund shall be offset and reduced by such unpaid amounts; and

g)

Prohibition Against any Other Manner of Refund. No refund of or credit

for taxes paid shall be made or allowed to any person by any court or agency other than

as provided in this paragraph.

(6)

Authority to Abate. Before any court acquires jurisdiction in the matter, or at any

time when an assessment is found to be incorrect, the Commission may abate any part of an

assessment which it determines was incorrectly, erroneously, or illegally made.

a)

Form of Request. The request must be made to the Office of the Director,

in accordance with paragraph I 5 of this part, must state the abatement sought, and must

contain a complete statement of the facts relied on, together with any information and

document necessary to present those facts;

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b)

Compromise. Subject to paragraph G 3 of this part, upon the compromise

of a liability, the Commission will cause abatement of the appropriate amount of the

assessment; and

c)

Public Record. Abatements in excess of $1,000.00 will be recorded in the

Office of the Director in a form available for public inspection. The record shall be

maintained for a minimum of six (6) years after the date of abatement.

(7)

Closing Agreements. If, at any time after payment of taxes or a final assessment

of taxes, the Commission in good faith is in doubt of the liability of the taxpayer for the payment

thereof under existing law, it may compromise the liability by entering into a written closing

agreement with the taxpayer that adequately protects the interests of the tribes, provided that the

agreement will be subject to approval by the Joint Business Council.

a)

Stipulation. If the closing agreement is entered into after a court acquires

jurisdiction over the matter, the closing agreement must be made part of a stipulated

order or judgment disposing of the case;

b)

Security. As a condition for entering into a closing agreement, the

Commission may require the provision of security for payment of any taxes due

according to the terms of the agreement; and

c)

Conclusive. A closing agreement is conclusive as to the liability for

nonliability for payment of taxes for the assessment dates or periods referred to in the

agreement, except upon a showing of fraud, malfeasance, misrepresentation, or

concealment of a material fact.

(8)

Informal Conference. Upon a notice of assessment (or denial of a refund), a

taxpayer may request in writing an informal conference with the Office of the Director to

consider the basis for an abatement or to clarify issues which may form the basis of an appeal

under this chapter.

(9)

Formal Conference. Upon a notice of assessment (or denial of a refund) to

preserve the right to appeal such determinations, a taxpayer must request in writing a formal

conference with the Office of the Director to consider the basis for an abatement or to clarify

issues which may form the basis of an appeal under this chapter, if the taxpayer elects not to

appeal first in accordance with Paragraph H 12 or 13 of this part. The formal conference with

the Officer of the Director is an administrative procedure for seeking a review and

redetermination of an assessment (or denial of a refund) preliminary to the request for an

administrative hearing.

a)

Condition Precedent. A conference may proceed upon the basis of a

notice of assessment or denial of refund, and a timely request;

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b)

Time and Manner of Request. The request must be filed within the time

allowed by the notice. It should identify the notice, declare the redetermination sought,

and must include a complete statement of the facts relied on. The conferee, after an

initial inquiry, may deny the request for conference and direct the taxpayer to proceed to

a hearing;

c)

Stay of Collection. Upon a proper request for and grant of a conference,

payment of the amount set forth in a notice of assessment that is in dispute will be stayed

until a time not more than thirty (30) days after issuance of a conference decision;

d)

Conduct of Conference. The conferee may confer with the taxpayer by

phone or in person, or may require the submission of additional written material, and will

issue a written conference decision. If the result sought is denied in whole or in part, the

decision will state the basis for the denial;

e)

Request for Further Hearing. Within thirty (30) days after issuance of the

decision, the taxpayer may request the matters in dispute be submitted for a hearing and

review before the Commission; and

f)

Finality of Decision. If no appeal is made within the time allowed, the

decision is final and is not subject to any appeal before the Commission or in any court.

(10) Stay of Payment. After the formal conference, the taxpayer may request a stay of

payment on the conference decision; the request must be based upon an intention to request a

hearing and must be filed within ten (10) days after issuance of the decision.

(11) Prohibition of Suits. No suit to restrain the assessment and collection of the tax

imposed by this chapter shall be maintained in any court by any person, whether or not such

person is the one on whom such taxes were assessed.

(12) Administrative Appeal. Appeal from assessments and denials of refund must be

made first to the Commission according to its procedures under paragraph I 5 of this part.

Appeals from final actions of the Commission, including but not necessarily limited to

assessments, denials of refund, and a suspension order, shall be made only to the Joint Business

Council.

(13) Procedure for Hearing. After a taxpayer has exhausted its right to appeal in

accordance with paragraph I 5 of this part, the taxpayer may appeal the determination made

pursuant to paragraph I 13 in a hearing before a hearing officer designated by the Commission in

accordance with the procedures set forth below. The hearing officer will conduct a hearing to

receive evidence from the taxpayer and the Office of the Director. Any conference decision

issued pursuant to paragraph I 13 of this part will be included as part of the record for decision.

The decision of the hearing officer will be binding only if adopted by the Commission as a final

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decision. Failure to exercise further appeal rights in accordance with paragraph L 14 of this part

shall constitute a waiver of any further appeal.

a)

Time and Manner of Appeal. Within thirty (30) days after the issuance of

a conference decision or a referral hearing by the conferee, the taxpayer may request a

formal review of such decision or the matters at issue in the referral pursuant to a

procedure involving two steps: administrative hearing and entry of the record, findings,

and the recommendations of the hearing officer from which will issue the final action of

the Commission; and

b)

Stay of Payment of Taxes. Payment of taxes which are being appealed in

an administrative hearing may be stayed upon the written request of the appellant. The

stay may be conditioned on the posting of a bond or provision of other security, or on the

creation of a lien.

(14) Appeal to the Joint Business Council. Upon receipt of a final action of the

Commission, the taxpayer may appeal the action to the Joint Business Council.

a)

Payment Required. No appeal may be taken or will proceed before the

Joint Business Council until the payment of the taxes assessed or determined by the

Commission has first been made; and

b)

Time for Appeal. The appeal must be filed with the Joint Business

Council within thirty (30) days after issuance of the Commission*s order.

Section 11-1-5

Miscellaneous

(1)

Tax Administration Fund. All monies received by the Commission as taxes shall

be deposited immediately in a Shoshone and Arapaho Tax Administration Fund. Monies

received will be divided equally between the Shoshone Tribe and the Arapaho Tribe in

accordance with Joint Business Council Resolution 5805 dated February 20, 1986.

(2)

Director. The director of the Tax Office is authorized and directed to credit all

tax monies received by the Commission to the Shoshone and Arapaho Tax Administration Fund

and to disburse refunds as directed by the Commission; to keep separate accounts for the fund;

and to be accountable to the Commission for the accounts and their disposition, for the regular

and timely reconciliations, and for reports to the Joint Business Council on no less than a

monthly basis, with quarterly summaries. Such reports will show the amounts deposited and

disbursed during each month and will reconcile the beginning and ending fund balances.

(3)

Effective Date. The effective date of these regulations is contained in the notice

of proposed regulations dated July 1, 1987.

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(4)

Transition. The Commission has adopted transition rules and procedures to be

followed in connection with these regulations. The following analysis indicates whether the

regulations promulgated herein are to be applied prospectively (commencing with the effective

date described herein), or retrospectively (representing the original intent of the regulations

effective April 2, 1979, and accordingly effective from such date). Special transition provisions

are described as applicable.

Regulations

Transition Rule

I.

General Provisions

Retrospective

II.

Commission Organization (all but Section i)

Prospective

I.

Retrospective

III.

Examination

Tax, Reports, and Collection

A.

Tax

Retrospective (Note B)

B.

Special Computation Provisions

Retrospective

C.

Reports

Prospective

D.

General Information

Retrospective

E.

Information and Report Forms

Prospective

F.

Place and Manner of Filing and Payment

Prospective

G.

Extension

Prospective

H.

Due Dates

Retrospective

I.

Interest Rates

Prospective (Note A)

J.

Designation of Agent

Prospective

K.

Noncompliance Penalties

Prospective (Note A)

L.

Unlawful Acts

Prospective

M.

Suspension and Fraud Proceedings

Prospective

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N.

Collection Procedures

Retrospective

IV.

Administrative Appeal

Retrospective

V.

Miscellaneous

Prospective

VI.

Legal Description of Wind

River Reservation

Retrospective

VII.

Report Forms and Examples

Prospective

Note A. This note takes precedence over any general rules above that appear to conflict.

The Commission is currently in the process of completing audits of taxes on certain tribal

leases. Upon completion of such audits, the Commission will deliver audit reports to the

applicable operators, who, at such time, will have sixty (60) days to pay the taxes due, penalty

and interest indicated in such audit reports. The penalty and interest in the audit reports will be

computed at five percent (5%) and twelve percent (12%) simple, respectively, in accordance

with Ordinance 39, as amended. At such time, the operators shall provide any information

which they believe will adjust the findings contained in such audit reports. The Commission will

then review the information so provided and make any adjustment to the taxes due, penalties and

interest as warranted and refund any excess within sixty (60) days of receipt of the information

or payment, whichever is received by the Commission at the later date. Failure to pay the taxes,

penalties and interest as described in this note will result in retroactive application of the interest

rates and noncompliance penalties described with these regulations.

The Commission may adopt additional regulations setting forth transitional rules and

procedures to be followed, if deemed necessary by the Joint Business Council.

Note B. For the period from April 2, 1979, to March 31, 1982, the tax rate is the same as

in the regulations except that one half of one percent should be substituted for four percent (4%).

(5)

Assistance Agreements. The Commission is authorized to negotiate mutual

assessment and collection assistance agreements with any other tax jurisdiction. The agreements

so negotiated will come into force only upon ratification by the Joint Business Council.

Section 11-1-6

Wind River Reservation

The Wind River Reservation is that area of land described in 18 U.S.C. Section 1151 as

follows, as may be circumscribed by Ordinance No. 39, as amended:

Except as otherwise provided in sections 1154 and 1156 of this title, the

term “Indian country,” as used herein means:

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a)

All land within the limits of any Indian reservation under the

jurisdiction of the United States Government, notwithstanding the issuance of any

patent, including rights-of-way running through the reservation,

b)

All dependent Indian communities within the borders of the United

States, whether within the original or subsequently acquired territory thereof, and

whether within or without the limits of a state, and

c)

All Indian allotments, the Indian titles to which have not been

extinguished, including rights-of-way running through the same.

Section 11-1-7

Report Forms and Examples.

Examples marked as exhibits - see at the end of this Title:

Exhibit 1 -

Business Tax Quarterly Return Summary (Form XI-l)

Exhibit 2 -

Quarterly Report of Oil Production (Form XI-2)

Exhibit 3 -

Quarterly Report of Unprocessed Gas Production (Form XI-3)

Exhibit 4 -

Quarterly Report of Processed Gas Production (Form XI-4)

Exhibit 5 -

Oil Amendment Form (Form XI-5)

Exhibit 6 -

Gas Amendment Form (Form XI-6)

Exhibit 7 -

Processed Gas Amendment Form (Consists of Three Pages) (Form XI-7)

Exhibit 8 -

Monthly Tax Estimate (Form XI-8)

CHAPTER 2

TRIBAL MINERALS DEPARTMENT

Section 11-2-1

Creation

There is hereby established a Tribal Mineral Department composed of such tribal

employees as may be employed from time to time by the business councils, or their authorized

representatives.

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Section 11-2-2

Purpose

The Tribal Mineral Department shall perform all tasks and assignments necessary to

protect the mineral resources of the tribes and to insure that the tribes receive the maximum

economic benefit from tribal mineral resources.

Section 11-2-3

Duties of the Tribal Mineral Department

The Tribal Mineral Department, under the control of the business councils, shall perform

such duties as are assigned to it by the business councils or their authorized representatives,

including, but not limited to, the following:

(1)

Assemble and maintain on a current basis records of all tribal mineral leases. The

records shall identify the leased land, the lessees and their assigns, the royalty rate, the rental

rate, the term, special obligations of the lessees, and such other information as may be

appropriate.

(2)

Assemble and maintain oil and gas lease maps of the reservation and vicinity

showing the status of development on each lease.

(3)

Maintain records showing by tribal leases and fields the amount of production,

the amount paid in royalty and rental.

(4)

Verify that the lessees use the correct price in calculating royalty payments and

report any inadequacies to the business councils.

(5)

Follow the progress of oil and gas development on the reservation and vicinity.

(6)

Review proposed unitization and communitization agreements, secondary and

tertiary recovery projects and make recommendations to the business councils.

(7)

Report leases not producing in paying quantities, or that are otherwise in violation

of the lease and make recommendations to the business councils.

(8)

Maintain communication with contractors, or joint operations, for projects in

which the tribes have a financial interest and monitor contract operation in accordance with the

terms of the contracts to insure performance of the obligations of the contracts with the tribes.

(9)

Upon request, advise and assist in negotiations of contracts for the development

of mineral resources.

(10)

Investigate and report the improper use of land by lessees.

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(11) Review reports of oil and gas lease sales in the Rocky Mountain area, by the

Department of the Interior, states and other tribes.

(12) Check the availability of lands for leasing and block tract boundaries for

prospective lease sales.

(13) Advise prospective lessees as to availability of lands for leasing or for

developmental agreements.

(14) Analyze bids received at competitive sales and recommend acceptance or

rejection of high bids.

(15)

Maintain records of bonus bids and leases awarded at tribal lease sales.

(16) Review and analyze governmental regulations affecting tribal mineral resources

and make appropriate recommendations to the business councils.

(17)

production.

Administer the collection of tribal taxes measured by oil, gas or other mineral

Section 11-2-4

Personnel

The personnel of the Tribal Mineral Department shall be hired and fired by the business

councils, or their authorized representatives, and shall be responsible and answerable to the

councils in all respects. The qualifications for personnel shall be fixed by the business councils,

or their authorized representatives.

(1)

Qualifications of the Position of the Director of the Tribal Mineral Department.

This position calls for the following:

a)

High school graduate, or better;

b)

Knowledge of geography of the reservation;

c)

Elementary knowledge of geology;

d)

Experience as a scout or landman or as an assistant to one;

e)

Bookkeeping experience would be helpful;

f)

Ability to prepare reports; and

g)

Ability to meet with people and argue convincingly.

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(2)

Qualification of the Position of the Record Keeper-Secretary. This position calls

for the following:

Section 11-2-5

a)

High school graduate or better;

b)

Bookkeeping skills and ability to handle numbers accurately; and

c)

Ability to type reports.

Inspection of Tribal Leases and Filing of Certain Production Records

In order to ensure that the Shoshone and Arapaho Tribes are receiving the proper

royalties on production and sales from their leases, it is resolved that:

(1)

The employees of the Tribal Minerals Department shall be permitted to witness

all LACT meter readings and tank gauging at the end of the month and all LACT meter provings

on tribal leases.

(2)

The employees of the Tribal Mineral Department shall, upon notice to the lessee

(or operator), be permitted to gauge the sales or bad oil tanks on any tribal lease and to conduct

their own samplings for measurement of gravity and BS&W.

(3)

The lessee (or operator) and purchaser of crude oil shall each submit to the Tribal

Minerals Department, within thirty (30) days after the end of each production month, one copy

of all LACT and run tickets, all monthly meter readings, and all LACT meter proving reports.

(4)

If either the lessee (or operator) or the purchase of crude oil knowingly fails to

comply with the foregoing requirements, the Joint Business Council shall place the lessee (or

operator), or purchaser of crude oil on the list of individuals and companies ineligible to do

business with the Tribes.

(5)

If the lessee fails to comply with the foregoing requirements, the Tribal Minerals

Department shall document the lessee*s noncompliance with this resolution and shall forward the

documentation to the Superintendent of the reservation and the USGS supervisor with a

recommendation that regulatory sanctions be taken pursuant to 25 CFR, Sections 171.22 and

184.24.

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CHAPTER 3

CIVIL PENALTY REGARDING RUN TICKET

Section 11-3-1

Enforcement

The Bureau of Indian Affairs Police Department, the Tribal Minerals Department and the

Tribal Fish and Game Department are authorized to establish random checkpoints anywhere

within the exterior boundaries of the Wind River Reservation, at any time of the day or night,

and make random stops of all vehicles capable of hauling crude oil, for the purpose of checking

the run tickets of haulers of crude oil operating on the reservation. Any such hauler failing to

stop at a checkpoint will be subject to a $10,000.00 civil penalty and barred from further crude

oil hauling on the reservation. Any crude oil hauler not having a properly and completely filled

out run ticket will subject to a $10,000.00 civil penalty and debarred from further crude oil

hauling on the reservation.

Section 11-3-2

Detention of Truck

If an appropriate authorization cannot be produced by the driver, the truck should be

detained and turned over to the appropriate federal authorities.

Section 11-3-3

Impoundment

If any crude oil hauler fails to pay such civil penalty, the equipment of such hauler will

be impounded if found on the reservation, and held until such time as the civil penalty is paid.

Section 11-3-4

Continued Hauling

If any crude oil hauler continues to haul crude oil on the reservation after having been

barred from such activity, such hauler will be subject to an additional $10,000.00 civil penalty

for each piece of equipment violating the debarment, and such equipment will be impounded

until the civil penalty is paid.

Section 11-3-5

Hearing

Any crude oil hauler who wishes to contest the assessment of the civil penalty, or the

impoundment of equipment, shall have the opportunity of a hearing before the Shoshone and

Arapaho Tribal Court or the Court of Indian Offenses by subjecting himself to the jurisdiction of

the court within five (5) days of the assessment of the penalty or the impoundment of the

equipment.

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CHAPTER 4

CONTROL OF STRAY OR TRESPASSING LIVESTOCK CODE

Section 11-4-1

Definitions as Used in this Code

(1)

Wyoming.

(2)

“Tribes” means the Shoshone and Arapaho Tribes of the Wind River Reservation,

“Reservation” means the Wind River Indian Reservation, Wyoming.

(3)

“Joint Business Council” means the Shoshone Business Council and the Arapaho

Business Council, the respective governing bodies of the tribes, acting in joint meeting.

(4)

“Cooperative Agreement” means the agreement between the Wyoming Stock

Growers Association and the Shoshone and Arapaho Tribes.

(5)

“Secretary” means the tribal secretary.

(6)

“Livestock Officer” means the officer appointed by the Joint Business Council

and includes such other persons acting under his authority or otherwise designated by the Joint

Business Council to carry out and enforce this ordinance.

(7)

“Trespassing livestock” means any bovine animal, sheep or cattle, horse, mule,

swine or goat, running on tribal land or land held in trust by the United States for individual

Indians, whether fenced or unfenced, within the exterior bounds of the reservation, that falls

within one or more of the following classes:

a)

The owner of the trespassing livestock is unknown in the locality where

the livestock is found or the owner is known but cannot with reasonable diligence be

found;

b)

The trespassing livestock is unbranded or unmarked except unweaned

animals running with their mother who wear a brand or mark;

c)

The trespassing livestock is branded with two (2) or more brands and the

ownership is disputed; and

d)

The owner of the trespassing livestock is known but does not have a valid

grazing or crossing permit granted by the tribes for such livestock.

(8)

following:

“Service” or “to serve” as used in this code means one or the other of the

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a)

Delivery to the owner or his representative by handing such a person a

true and correct copy of a notice or other paper, or by leaving a copy at his dwelling

house or usual place of abode with a person of suitable age and discretion then residing

therein; the owner of the trespassing livestock has twenty-four (24) hours from receipt of

notice to remove his livestock from trespass; or

b)

Delivery by certified mail, return receipt requested, to the address, if

known, or to the last known address, of the individual to remove his livestock from

trespass within twenty-four (24) hours after receipt of a notice. Service shall be made by

a person at least eighteen (18) years of age and proof of such service shall be made by

such person by filing with the Livestock Officer a statement certifying the date, time,

place and manner of service.

If the livestock are not removed within a 24-hour period, the livestock will be impounded

without further notification. Once an owner has been in trespass, they will be impounded

without further notification.

Section 11-4-2

Impoundment Where the Owner is Not Known

The Livestock Officer may impound trespassing livestock that falls into one or more

classes (a), (b), (c), and (d) of Section 11-4-17 of this code. Before taking such action, the

Livestock Officer shall inspect the trespassing livestock for brands and other evidence of

ownership, and shall make a diligent effort to learn or determine the ownership of such

trespassing livestock. In his discretion, the Livestock Officer may hold such trespassing

livestock for not more than ten (10) days after his inspection to enable him to complete his

investigation of ownership. If the owner is found, the Livestock Officer shall serve the owner

with notice as provided in Section 11-4-3 of this code and shall proceed in accordance with

Section 11-4-3. If the owner is not found, the trespassing livestock shall be sold in accordance

with the provisions of this code.

Section 11-4-3

Impoundment and Notice Where the Owner of Trespassing Livestock is

Known

Where the owner of the trespassing livestock is known, after impoundment, the Livestock

Officer shall serve the owner in the manner provided in section 11-4-1 (8) of this code with

written notice of such impoundment. The notice shall describe the livestock impounded,

including any brands or marks, the dates and place of trespass, and the date and place of

impoundment. A copy of this code shall accompany the notice and the notice shall specify that

the owner may redeem the trespassing livestock upon payment of the accrued costs and expenses

and hereinafter defined, not more than ten (10) days after the date of service of the notice,

otherwise the trespassing livestock will be sold in accordance with the provisions of this code.

The owner may redeem the trespassing livestock within the time allowed upon payment of the

costs of feed and care incurred by the tribes, and all other costs and expenses incurred under the

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authority of this code, including the costs of the time spent by the Livestock Officer as measured

by the compensation paid by the tribes to the Livestock Officer, plus reasonable reimbursable

expenses incurred by the Livestock Officer.

Section 11-4-4

Sale of Trespassing Livestock

If there is an unsettled dispute as to the identity of the rightful owner, or if the rightful

owner of trespassing livestock is not found, or, when found, refuses or fails within the time

allowed to pay the costs and charges specified in Section 11-4-3 of this code, the Livestock

Officer either shall send the trespassing livestock to the nearest available open market or

licensed sales ring where a Wyoming brand inspection is maintained and shall direct that such

livestock be there sold, or at the option of the Livestock Officer shall sell the trespassing

livestock at public sale to the highest responsible bidder. The secretary shall execute and deliver

a bill of sale from the tribes to the purchaser of such trespassing livestock.

Section 11-4-5

Disposition of Proceeds of Sale

From the proceeds of any sale under Section 11-4-4 of this code, the Tribes shall be

reimbursed for all costs and expenses as defined in Section 11-4-3 of this code in carrying out

the provisions of this code, and any remaining balance shall be deposited in a Wyoming bank or

savings and loan institution, in the name of the Tribes, in a special account identified as

“Shoshone and Arapaho Tribes, Trespassing Livestock Account.”

Should the proceeds of any sale under this code be insufficient to pay all costs and

expenses incurred under this code, the deficit shall be paid by the Tribes.

Section 11-4-6

Payment to Owner upon Proof of Ownership

The remaining balance from the sale of trespassing livestock on deposit in accordance

with Section 11-4-5 of this code, together with accrued interest, shall be paid to the rightful

owner of such trespassing livestock, provided satisfactory proof of claim for such payment is

made within one (1) year from the date of sale; otherwise such balance, together with accrued

interest thereon, shall be paid into the general account of the Tribes and any and all claims

against such balance shall stand extinguished.

If more than one person claims to be the rightful owner, no payment shall be made except

upon resolution of the dispute by the claimants or by adjudication of such disputes. Disputes

between enrolled members of the tribes will be held in the Shoshone and Arapaho Tribal Court.

Non-Indian disputes will be settled by the laws set forth by the Wyoming Stock Growers

Association.

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Section 11-4-7

Destruction of Diseased Trespassing Livestock

The Livestock Officer is hereby authorized to destroy any trespassing livestock certified

by a licensed veterinarian to have any infections, contagious or communicable disease and that

such destruction is necessary to prevent the spread of disease. Neither of the tribes, the

Livestock Officer, nor any other tribal employee or agent shall be liable for destroying such

trespassing livestock.

Section 11-4-8

Liability for Death or Loss of Trespassing Livestock

Neither of the tribes, the Livestock Officer, nor any other tribal employee or agent shall

be liable to the loss of any trespassing livestock by reason of the death of such trespassing

livestock while in the possession of the tribes, the Livestock Officer, or any other employee or

agent of the tribes.

Section 11-4-9

Reports of Livestock Officer

The Livestock Officer shall file a report with the secretary every thirty (30) days of all

trespassing livestock as to which action had been taken under this code. The report shall

describe the livestock, identify any brands or other marks, and set out the status of the action

under this code. The reports shall be open to the public for inspection.

Section 11-4-10

Notice of this Code

As a convenience to the public, this code shall be conspicuously posted in the Wind

River Indian Agency, the Tribal Office building and in such other public places on and adjacent

to the reservation as the Joint Business Council may direct, including, if permissible, the post

offices in Lander, Riverton, Shoshoni, Thermopolis and Dubois, Wyoming. A classified

advertisement shall be published in the newspapers of general publication serving the towns

mentioned above describing the nature and purpose of the code, specifying that copies of the

code are available on request at the Wind River Indian Agency and the Tribal Office, and

identifying the places where the full copy that of the code is posted. Nothing stated in this

section and no action or failure to act under this section shall affect the validity of this code.

Section 11-4-11

Notice of Livestock Impoundment

If the owner or owners of impounded livestock cannot be found prior to the livestock

being sold, a notice in the local papers will be posted in hopes that the owner or owners may be

found. If the owners are found they will be required to pay the impoundment costs to redeem the

livestock.

The cooperative agreement entered into between the Shoshone and Arapaho Tribes and

the Wyoming Stock Growers Association will be used in conjunction with this code.

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CHAPTER 5

ZONING CODE

Section 11-5-1

Purpose

Uncontrollable use and development of land within the Wind River Indian Reservation

poses a threat to the use of the reservation as a homeland for the Shoshone and Arapaho Tribes

for whom the reservation was established and jeopardizes the value of the land and water,

impairs the economic benefits of the natural resources and damages the environment. All

residents of the reservation are affected. To protect the interests of the tribes and all persons on

the reservation this code is adopted.

Section 11-5-2

(1)

General Definitions

“Agency” means the Wind River Agency.

(2)

“Councils” means the Business Council of the Shoshone Indian Tribe and the

Business Council of the Arapaho Indian Tribe.

(3)

“Person or Persons” means any individual, partnership, or corporation,

association, or their agents, except Indians trading and selling traditional arts and craft items.

(4)

“Secretary or Secretary of the Interior” means the Secretary of the Interior or his

authorized designate.

Section 11-5-3

Lands Affected

This code shall apply to all lands within the exterior boundaries of the Wind River

Reservation, whether held in trust by the United States for the benefit of the individual Indians or

for the Shoshone and Arapaho Tribes or held in fee by Indians or non-Indians.

Section 11-5-4

Establishment of Zoning Area Categories

Four categories are hereby established, as follows:

(1)

Residential. Subject to the protection of existing uses as provided in Section

11-5-10 of this code, all land subject to this code is hereby zoned as “residential.” The

residential designation may be changed pursuant to the procedures set forth in Section 11-5-5 of

this code.

(2)

Rural. All land reserved for farming and grazing that is designated “rural”

pursuant to the procedures set forth in Section 11-5-5 of this code.

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(3)

Commercial. All land deemed suitable for the establishment of retail, wholesale,

professional, or service businesses, designated “commercial” pursuant to the procedures set forth

in Section 11-5-5 of this code.

(4)

Industrial. All land deemed suitable for manufacturing, energy production,

mineral development, or other industrial pursuits, designated “industrial” pursuant to the

procedures set forth in Section 11-5-5 of this code.

Section 11-5-5

Procedures for Designation of Zone Areas Other than Residential

(1)

The councils, of their own initiative, or at the request of an applicant, may

designate areas in the residential zone for zoning other than residential. Notice of the proposed

rezoning shall be posted in conspicuous places in the tribal offices, in the agency, and with the

consent of the county, in the Fremont County Courthouse in Riverton. The notice shall be

advertised at least once a week for two (2) weeks in at least one newspaper of general circulation

within the reservation. The notice shall provide at least twenty (20) days from the date of the

first publication within which all interested persons, Indian and non-Indian, may submit their

views at a public meeting of the councils to be held at a time, date and place designated in the

notice. A transcript of the meeting shall be made, and if the meeting is held at the request of an

applicant, the applicant shall have the right to be represented by counsel. After the councils have

received the views of interested persons, the councils may take such action as may be

appropriate in the premises. Any final zoning order adopted by the councils shall be posted and

published. The final order shall take effect ten (10) days after the date to the second publication,

unless an emergency requires an earlier effective date. (Form XI-9 and XI-10)

(2)

Emergency Situations. Where the councils deem that the interests of the public

require emergency action, a rezoning order may be issued without regard to the notice

procedures of Section 11-5-5, provided that any order issued in an emergency shall be posted

and published in accordance with the provisions of Section 11-5-5.

(3)

Amendments. Any zoning order may be amended by the councils, provided that

no substantive amendment shall be made except in accordance with the notice provisions of this

section.

Restrictions on Use in Residential Zones

Section 11-5-6

(1)

No building or structure shall be erected or moved onto a residential zone unless

it is:

a)

A single family dwelling, or outbuilding (including, barn, stable or the

like) used in connection with a family dwelling;

b)

A school;

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c)

A church or religious institution;

d)

A governmental or public service building; or

e)

the vicinity.

Section 11-5-7

(1)

For housing a commercial business for the convenience of the residents in

Subdivisions; Trailer Parks

Subdivisions

a)

No subdivision or trailer park shall be expanded, enlarged, or established

on trust lands without the prior written consent of the councils. No state, county or city

approval is needed.

b)

No subdivision or trailer park shall be expanded, enlarged or established

on fee land without the prior written consent of both councils.

(2)

In determining whether to grant such consent, the councils shall consider, among

other things, the following:

a)

Whether sufficient land will be provided for each structure, mobile or

fixed, to assure safety, law and order, and aesthetic use of the land;

b)

Whether sufficient park and recreational space will be provided;

c)

Whether adequate water, sewer, and other utilities will be provided;

d)

Whether adequate police and fire protection are available; and

e)

Whether the proposed subdivision will be in conformity with character of

the surrounding community and whether it will not unduly infringe on rural or

agricultural lands, wildlife or fisheries.

(3)

Applications for approval of subdivisions or trailer parks shall be made in the

following manner for fee lands not exempted from tribal approval under Section 11-5-3:

a)

Prior to submitting an application for a subdivision or trailer park permit

to state, county, or city authorities (thereafter if required by circumstances), the developer

shall submit to the councils and obtain their conditional approval of his proposal

outlining his developmental plan. The developer at a minimum must submit to the

councils a map of the proposed subdivision and a written statement of why the

subdivision or trailer park should be approved with special attention to the five

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considerations listed in Section 11-5-7. Photographs of the site and surrounding area

should be attached;

b)

The councils will call and hold a public hearing in accordance with the

procedures set forth in Section 11-5-5 to consider the application. In addition to the

publication required in Section 11-5-5, the applicant, at least fifteen (15) days before the

hearing, shall place a notice of his application on the property at a place visible to the

public and shall furnish satisfactory proof of such posting at the hearing. The councils

may also require that the applicant mail a copy of the notice by registered or certified

mail, return receipt requested, to each family unit or business within one-half (½) mile of

the premises within the time to notify them of the hearing;

c)

Within sixty (60) days after the public hearing, the councils will issue a

written decision either granting or denying conditional approval and stating its reasons

for so doing; and

d)

Upon receipt of conditional approval of the councils, the developer will

submit his formal application for a subdivision permit to the state, county or city,

whichever are applicable. If the developer does not receive approval from the applicable

state, county, or city within six (6) months of tribal conditional approval or if the

developer’s application is rejected, the tribal conditional approval will be considered

revoked. If a subdivision or trailer park permit is granted by the applicable state, county

and city authorities, the developer must submit the permit or permits to the councils, who

within sixty (60) days after submission, will issue final approval of the subdivision or

trailer park, provided all state, county and city approvals are in order and the permits are

for development substantially in conformity to the plan initially submitted and

conditionally approved by the councils.

(4)

Applications for trailer parks and subdivisions on trust land shall be made in the

same way and with the same procedural rights as in Subsection (3) (a), (b), and (c) above, except

that instead of a conditional approval or rejection, the councils* action shall be final.

(5)

Subdivision Defined. A subdivision is any land subject to this code which is

divided, or proposed to be divided, into three (3) or more lots for the purpose of sale or lease as

part of a common plan.

(6)

Trailer Park Defined. A trailer park is any land subject to this code which is used

or proposed to be used through sale or lease for the location of three (3) or more trailers or

mobile homes.

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Section 11-5-8

Restrictions on Use in Zones Other Than Residential

The councils shall establish the standards or zones other than residential by proposed and

final orders designating such other zones.

Section 11-5-9

Variances

(1)

Application for Variance. No structure not in conformity with this code shall be

erected or moved onto land, and subject to Section 11-5-10, no existing structure shall be used

for a purpose not permitted by this code without an approved variance from the council. A

variance may be requested by filing with the councils an application for variance, setting out all

relevant facts including the nature and location of the proposed structure or use and the

justification for the requested variance. The councils shall call and hold a public hearing in

accordance with the procedures set forth in Section 11-5-5 to consider the applications. In

addition to the publication required in Section 11-5-5, the applicant shall, at least fifteen (15)

days before the hearing, place a notice of the proposed variance on the property at a place visible

to the public and shall furnish proof of such posting. The councils may also require that the

applicant mail a copy of the registered or certified mail, return receipt requested, to each family

unit or business within one-half (½) mile of the premises within time to notify them of the

hearing. (Form XI-ll)

(2)

Action on Applicant for Variance. The councils shall deny a variance unless the

applicant furnishes satisfactory proof:

a)

That the proposed variance would not materially interfere with the

purposes of this Code; and

b)

That unless such variance is granted, the applicant will suffer hardship out

of proportion to the public gain achieved by denying the variance. The views of persons

living in the vicinity who make their views known to the council shall be considered in

deciding whether to grant or deny the variance.

Section 11-5-10

Existing Uses Protected

Any lawful use of land existing:

(1)

On November 15, 1978; or

(2)

On any date of a subsequent designation of zones under this Code may be

continued, even if such use does not conform with the provisions of this Code or with the

subsequent designation of zones. If such nonconforming use is abandoned, discontinued or

substantially changed for a total of twelve (12) months or more, and with all subsequent

designation of zones.

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Section 11-5-11

Oil and Gas Production

Nothing in this Code shall affect exploration, development, production, or transportation

of oil and gas under any mineral lease or other contract approved by the Secretary of Interior.

Section 11-5-12

Enforcement

(1)

The tribes, or any affected party, may bring suit in any court of competent

jurisdiction to obtain damages, removal of the structure and injunctive or other relief to prevent

or remedy any violation of this Code. Persons adjudged in violation of this Code in a suit

brought by the Tribes shall be subject to liquidation damages of $250.00, plus all actual

damages, and shall be assessed all reasonable attorney*s fees and costs of litigation incurred by

the Tribes in enforcement of the Code.

(2)

The Tribes, in addition to the foregoing, may take such other lawful measures as

may be necessary to prevent or remedy a violation of this Code.

CHAPTER 6

CULTURAL RESOURCES MANAGEMENT CODE

Section 11-6-1

Legal Basis

(1)

Tribal Governance. This chapter is enacted in accordance with the governance of

the Wind River reservation, as established by current legal principles.

(2)

Cultural Resource Management Legislation. This chapter is established because

of the wishes of the Government and People of the Shoshone and Arapaho Tribes, and to

establish compliance with various federal legislative acts, including the National Environmental

Policy Act, the Archaeological Resources Protection Act, and the Native American Religious

Freedom Act. Of specific concern is the current Department of the Interior Onshore Federal and

Indian Oil and Gas Leases operating procedures (NTL1-85 Wyoming) which states that “all

operations...must conform to the requirements of this Notice (except where local Indian

requirements apply).”

(2)

Jurisdiction

a)

The Wind River Cultural Resources Protection Program (WRCRPP) shall

be under the exclusive jurisdiction of the Joint Business Council of the Shoshone and

Arapaho Tribes (JBC). All reports of operations by WRCRPP personnel, and requests

for information by other parties, will be made directly to the Joint Business Council. All

cultural resource actions on the Wind River Reservation (WRR) will be conducted by

WRCRPP personnel.

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b)

Daily operations will be supervised by the WRCRPP Director, in regular

consultation with the JBC, and other tribal, federal, state and company officials as

designated by the JBC.

Section 11-6-2

Organizational Basis

(1)

General Structure. The Wind River Cultural Resource Protection Program is a

Tribal enterprise structured for economic benefit to Tribal members as well as for resource

protection. It is currently in a transitional stage, using close cooperation with professional

consultants and the University of Wyoming Department of Anthropology for a training program,

with the ultimate goal being a small, independent Tribal Cultural Resource Management (CRM)

Program.

(2)

Personnel. Personnel shall consist of Tribal employees including Director,

Supervisory Archaeologists, Field Archaeologists and Resource Interns, as required by

workloads. Enrolled members of the Shoshone and Arapaho Tribes shall be preferentially

employed.

(3)

Qualifications

a)

Qualifications, in terms of education and experience, will be those

generally recognized for professional archaeologists in cultural resource management

positions, since the cultural resources will be archaeological in nature; and

b)

Duties of the Director require a graduate degree with a specialization in

archaeology, and sufficient experience in the area. Staff members will have adequate

relevant classes and degrees at the college level and adequate field experience. However,

all field and report work will utilize Tribal members with less than complete

qualifications in trainee capacities as needed qualifications and experience levels are

developed.

Section 11-6-3

Procedural Basis

(1)

Operations Requiring Cultural Resource Protection Procedures. Operations

requiring an evaluation of the need for protection procedures shall consist of all operations with

a potential for damage to cultural resources, primarily direct impact through ground disturbance

activities such as construction or vehicle traffic, and indirect impact such as increasing access to

undisturbed areas of the Wind River Reservation.

It is recognized that almost all such impacts are the result of minerals development

activities, and most work will be concentrated in minerals development areas.

(2)

General Procedures. General procedures shall consist of:

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a)

Evaluation of all projects with potential impact on cultural resources by

WRCRPP staff, including a search of existing WRR CRM files for known resources in or

near the project area;

b)

Recommendation on appropriate action to the JBC, including no action,

avoidance, further field work, and other alternatives;

c)

Initiation of action as approved by the JBC. In most previously

undisturbed minerals development areas, these procedures will consist of field inspection

by WRCRPP staff, to be followed by additional field operations such as more intensive

survey and recording as needed;

d)

Final verbal recommendations to the JBC, and consultation with Bureau of

Indian Affairs personnel and other parties as designated by the JBC, to establish final

procedures for clearance of the proposed project, such as avoidance, monitoring or

salvage;

e)

Compilation of a written report outlining the procedures, findings and

recommendations, as established in the above steps; and

f)

Final JBC consideration of cultural resource actions, such as clearance,

clearance with appropriate further procedures (such as avoidance procedures), or

disapproval of the project (done on the basis of either the verbal or written report).

(3)

Confidentiality of Information. All detailed information on the nature and

location of cultural resources will be kept strictly confidential and housed under security

arrangements in the Tribal Complex at Fort Washakie. Outside requests for use of this

confidential information will be submitted to the JBC. At their direction, generalized CRM

information and/or reports will be submitted to relevant tribal, federal, state or outside parties.

Section 11-6-4

Funding Basis

(1)

Minerals Development Projects. The costs of all cultural resource procedures

involved with minerals development actions, or other projects requiring review of direct or

indirect impact, are the responsibility of the lessee, or state, federal or other party initiating the

action. An invoice for all expenses will be submitted by the WCRPP Director to the Joint

Business Secretary, and then to the Joint Bookkeeper, for forwarding to the responsibility party.

(2)

It is recognized that other internal and external sources of funding can be obtained

and applied to program support outside of standard minerals development procedures (e.g.,

heritage study projects, additional training of Tribal members).

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CHAPTER 7

PRIVILEGE OF DOING BUSINESS TAX CODE

Section 11-7-1

Imposition of Tax

Any person or entity engaged in the production of oil and gas from land or minerals held

in trust by the United States (hereafter “trust oil and gas”) for the Shoshone Indian Tribe and the

Arapaho Indian Tribe (hereafter “Tribes”), or for any individual Indian, located with the exterior

boundaries of the Wind River Reservation as described in Title 18, U.S.C., Section 11.51, as

follows:

Except as otherwise provided in Sections 11.54 and 11.56 of this title, the term “Indian

country” as used herein means:

a)

All land within the limits of any Indian reservation under the jurisdiction

of the United States Government, notwithstanding the issuance of any patent, and

including rights-of-way running through the reservation;

b)

All dependent Indian communities within the borders of the United States,

whether within the original or subsequently acquired territory thereof, and whether within

or without the limits of a state, and

c)

All Indian allotments, the Indian titles to which have not been

extinguished, including rights-of-way running through the same.

Shall for the privilege of doing business on the reservation pay an amount equal to the

then-current tax rates imposed by the State of Wyoming and its sub-divisions on all severed oil

and gas products, plus four percentum of the market value at the well of all oil and natural gas

produced, saved and sold or transported from the field where produced (hereafter “trust oil or

gas”);

Provided that the tax imposed by this ordinance shall not apply to the following:

(1)

(2)

oil and gas.

Section 11-7-2

Any interest of the tribes in such trust oil and gas;

The royalty interest of any Indian under the jurisdiction of the tribes in such trust

Payment Procedures

The tax shall be paid on a quarterly basis by check made payable to the Shoshone and

Arapaho Tribes and delivered to the Tribal Office Complex, Fort Washakie, Wyoming, on or

before February 15, May 15, August 15 and November 15 of each year.

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Section 11-7-3

Delinquency Penalty Plus Interest

A penalty of five percent (5%) shall be charged on any taxes not paid within the time

specified in this ordinance, plus interest on the unpaid amount at the rate of one percent (1%) per

month from the date of delinquency until paid.

Section 11-7-4

Deduction Prior to Distribution of Proceeds

The lessee, producer, and buyer of the trust oil and gas shall be responsible for payment

of the tax on all production subject to tax, provided that every person or entity owning a taxable

interest in trust oil or gas, or in the proceeds thereof, shall be liable for that person*s

proportionate share of the tax. The lessee, producer, or seller is authorized to deduct all taxes

paid before making any distribution of the proceeds from the production.

Section 11-7-5

Quarterly Report of Producer

Any person or entity engaged in the production of such trust oil or gas, shall on or before

February 15, May 15, August 15 and November 15 of each year file with the tribes a report for

the preceding calendar quarter showing by lease the following:

(1)

Identification of the lease or contract under which the trust oil or gas is produced

and the name and address of the taxpayer.

(2)

The number of wells on the lease, the number of producing wells, and the number

of days of production by month for each well.

(3)

The gross amount of oil or gas produced and sold from each well.

(4)

The price or value base on which royalties were computed.

(5)

The total amount of production of oil or gas reported and the royalty paid to the

United States on behalf of the tribes in accordance with the regulations of the Department of

Interior, or paid to the tribes under contracts with the tribes.

Section 11-7-6

Refund and Credit for Overpayment; State Taxes

Any person or entity that overpays any tax imposed by this ordinance may, within one (1)

year of the overpayment, apply in writing to the tribes for a refund. If the tribes find that an

overpayment has occurred, the amount of the overpayment shall be credited to any taxes due

from the taxpayer for the current period, or refund the overpayment in full. A credit shall be

issued for an amount equal to the amount of the state taxes described in Section 1 herein paid,

unless and until such amount is found by a court of competent jurisdiction to be collected

unlawfully, in which case such amount shall be due and owing to the tribes.

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Section 11-7-7

Regulations

See Chapter I of this Title.

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LAW AND ORDER CODE

OF THE

SHOSHONE AND ARAPAHO TRIBES

OF THE WIND RIVER RESERVATION

WIND RIVER WATER CODE

Effective March 18, 1991

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CHAPTER 8

WIND RIVER WATER CODE

Section 11-8-1

Part 1 - Findings and General Provisions

Section 11-8-1(A)

Findings

(1)

The Tribes find that all Reservation natural resources are interconnected, and that

the water resource has cultural, spiritual and economic values that guide the appropriate use,

management and protection of that resource, and that condition all water and land use activities

in the watersheds and drainage basins of the Reservation.

(2)

The Tribes find that surface and groundwater are directly interconnected by the

hydrologic cycle of the region of and the Reservation, and therefore water is a unitary resource,

whether occurring as groundwater, springs, mineral water, soil moisture, precipitation,

percolating water, recharge, drainage waters, surface water, or otherwise.

(3)

The Tribes recognize that clean water is vital to the health and welfare of

Reservation residents and to the vitality of the Reservation economy. Because resource uses

may contribute to the degradation of water supply and quality, it is necessary to protect the

environmental quality and integrity of all surface and groundwater.

(4)

The Tribes find that all waters reserved by treaty are held by them in trust for the

benefit of the Reservation public and for certain inalienable public uses and that, as an essential

attribute of sovereignty, the power to determine the proper uses of said waters and the

management thereof is the Tribes* alone.

Section 11-8-1(B)

Definitions

For the purposes of this Code:

(1)

“Board” shall mean the Water Resources Control Board of the Wind River

Reservation.

(2)

“JBC” shall mean the Joint Business Council of the Shoshone and Northern

Arapaho Tribes of the Wind River Reservation.

(3)

“Person” shall mean any individual or group or combination thereof acting as a

unit, however associated; any organization of any kind, whether organized for profit or not, and

regardless of the manner of form in which it does business, whether as a sole proprietorship,

receiver, partnership, joint venture, trust, estate, firm, unincorporated association, corporation, or

government, including but not limited to, any part, subdivision, or agency of any of the

foregoing; and any combination of individuals or organizations in whatever form, and the plural

as well as the singular number.

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(4)

“Reservation lands” shall mean all lands within the Wind River Reservation,

which Reservation is defined to include:

a)

All lands within the limits or exterior bounds of the reservation as

delimited in the Treaty of July 3, 1868, 15 Stat. 673, less the portions ceded under the

Acts of December 15, 1874, 18 Stat. 291, and June 7, 1897, 30 Stat. 93, notwithstanding

the issuance of any patent, and including rights-of-way running through the Reservation;

and

b)

All lands which may hereafter be added to or made a part of the

Reservation.

(5)

“Tribal Court” shall mean the Shoshone and Northern Arapaho Tribal Court of

the Wind River Reservation.

(6)

“Tribes” shall mean the Shoshone and Northern Arapaho Tribes of the Wind

River Reservation.

(7)

“Tribal water rights” shall mean those rights to divert or affect Reservation water

which are granted pursuant to the provisions of this Code.

(8)

“Reservation water” shall mean any and all waters underlying, flowing through or

otherwise occurring or contained within the Reservation.

(9)

“General Adjudication” shall mean the proceeding entitled In re: The General

Adjudication of All Rights to Use Water in the Big Horn River System, 753 P. 2d 76 (Wyo.

1988), affirmed 492 U.S. 406 (1989).

(10) “1868 tribal water” shall mean that water reserved by treaty and adjudicated in

the General Adjudication and bearing a priority date of 1868.

(11) “1868 allottee derivative water” shall mean that water adjudicated to the use of a

successor in interest to an Indian allottee, the right to appropriate and the amount thereof which

was determined by the General Adjudication and bearing a priority date of 1868, popularly

referred to as “Walton rights.”

(12) “General Councils” shall mean the General Council of the Shoshone Tribe and

the General Council of the Northern Arapaho Tribe of the Wind River Reservation.

(13) “Mean annual flow” shall mean that flow which is calculated using historical

average annual flow data for the period 1940-1989.

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(14)

“Treaty-based water” shall mean 1868 tribal water and 1868 allottee derivative

water.

(15)

water law.

“State-held water right” shall mean a water right held pursuant to Wyoming state

Section 11-8-1(C)

Purposes

The purposes of the Wind River Water Code are:

(1)

To provide an orderly system for the use and management of all 1868 tribal water

and 1868 allottee derivative water.

(2)

To provide effective guidelines and a mechanism for the administration and

protection of tribal and allottee reserved rights, and State-held water rights to Reservation water.

(3)

To ensure that Reservation residents have sufficient water for cultural, domestic,

agricultural, stock, instream, and other uses, and that the Tribes have sufficient water for

Reservation economic development.

(4)

to come.

To conserve, manage and protect reservation water for future uses by generations

(5)

To protect Reservation water from over-appropriation, degradation,

contamination, exploitation, and any acts injurious to the quantity, quality or integrity of the

water.

(6)

Within the limits of the Tribes* public trust obligations, to encourage optimal

development and multiple use of the water resource, to promote stability of investment in water

use and delivery systems, and to permit all reasonable uses.

(7)

To maintain minimum perennial stream flows and to promote optimal recharge of

aquifers to supply beneficial uses.

(8)

To protect the health and welfare of Reservation residents, the political integrity

of the Tribes, and the economic security of the Reservation through the effective management

and protection of the Reservation*s water supply and water quality.

Section 11-8-1(D)

Scope

This Code applies to all persons desiring to use or using or undertaking activities on

Reservation lands which affect Reservation water.

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Section 11-8-1(E)

Beneficial Uses of Water

(1)

The uses to which water on the Reservation may beneficially be applied include

but are not limited to:

a)

Domestic use;

b)

Municipal use;

c)

Agricultural use;

d)

Stock water use;

e)

Industrial use;

f)

Instream flow use, including instream flow for fisheries, wildlife, and

pollution control, aesthetic and cultural purposes;

g)

Mineral resource development;

h)

Water storage, marketing and transfer;

i)

Groundwater recharge and supply enhancement;

j)

Recreational use;

k)

Cultural use;

l)

Religious use;

m)

Hydropower generation;

n)

Pollution control; and

o)

Resource development.

No presumption of preference of use shall be given to the order in which beneficial uses

are listed above.

Section 11-8-1(F)

Policies

The following general policies shall guide the use and management of water on the

Reservation:

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(1)

Existing uses, established duties of water, and relative priorities concerning the

use of Reservation water are to be protected and preserved, subject to the Tribes* public trust

obligations to protect tribal and allottee derivative water.

(2)

Surface water use will be adjusted for the varying water conditions each year, and

overall water use allocation decisions will be guided by the declaration of drought, normal, and

surplus hydrologic conditions that require different water management strategies. Water

development decisions will recognize hydrologic variability and will consider alternative sources

of supply, should dry conditions prevail.

(3)

Groundwater use will be guided by the overall condition of each aquifer system,

the expected long-term yields, and the cumulative impacts of existing and proposed uses on

ground and surface water supply and quality.

(4)

The planning and development of water and land resources will safeguard against

surface and groundwater degradation.

(5)

For long-term or carry-over storage, multipurpose impoundment structures are

preferred over single purpose structures.

(6)

Land use decisions involving or significantly affecting a stream bank, bed or

channel, or water storage facility shall seek to maintain and enhance the fishery and wildlife

resource.

(7)

Drainage strategies will be developed with due consideration for the conjunctive

or integrated use of surface and groundwater.

(8)

All land, water or other resource strategies, decisions, or regulations shall

consider the potential effect on all Reservation natural resources.

(9)

Allocation decisions are subject to periodic consideration and review for their net

effect on trust resources and values and may require adjustment of existing uses to protect trust

purposes where appropriate.

Section 11-8-2

Part 2 - Establishment of the Water Resources Control Board, and the

Office of the Tribal Water Engineer

Section 11-8-2 (A)

Establishment of the Water Resources Control Board

(1)

There is hereby established the Wind River Water Resources Control Board

(“Board”) as the primary enforcement and management agency responsible for controlling water

resources on the Reservation. The Shoshone and Arapaho Tribes each shall appoint six (6)

members of the Board. Each Tribe shall designate three (3) members of the initial Board to

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serve for a term of two (2) years and three (3) members of the initial Board to serve for a term of

one (1) year. Each Board member appointed, or reappointed after serving the initial term, shall

serve for a term of two (2) years and until his successor is duly appointed and qualified. The

Tribe who appointed the Board member whose term has or is expiring also shall appoint such

member*s successor. No Board member shall vote on a decision which could have a material

financial effect personally or directly upon such member or his business. A member shall

disclose to the Board any such financial effect at the time of such vote and may participate in the

discussion of the matter without voting upon it. Eight (8) members of the Board shall constitute

a quorum, provided at least four (4) members from each Tribe are present.

(2)

The duties and authority of the Board are to:

a)

Oversee the development of water resource management plans and

supervise the execution and enforcement of Code provisions and regulations thereunder;

b)

Approve or disapprove of water use permits in accordance with the

principles and procedures set forth in this Code;

c)

Conduct hearings regarding water permit applications and hear disputes

regarding the actions of the Tribal Water Engineer and/or water development/

management staff in accordance with the procedures adopted pursuant to Board

regulations;

d)

Compel production of documents or other things and compel attendance

of witnesses before the Board;

e)

Adopt such rules, regulations, permit forms, and additional materials, and

propose amendments to the Code, as necessary to interpret and execute its authority and

to implement the objectives and purposes of this Code;

f)

Establish and maintain a technical staff qualified by training and

experience to enforce and administer this Code;

g)

Research and define, based on the best available data, the most effective

ways of managing, conserving, and protecting Reservation water;

h)

Hire and supervise the Tribal Water Engineer;

i)

Advise the General Councils of the Tribes on all aspects of the Code and

Reservation water; and

j)

Organize and operate its offices in order to discharge its duties and

responsibilities effectively.

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Section 11-8-2 (B)

Establishment of the Office of the Tribal Water Engineer

(1)

There is hereby created the office and the position of Tribal Water Engineer

(“TWE”). The TWE is the executive arm of the Board, is responsible directly to the Board, and

has the authority to administer the water laws of the Tribes according to this Code, its

regulations, and the general instructions of the Board. The Board may delegate any of its duties

and authority to the TWE except the duty and authority:

a)

To hire and supervise the TWE;

b)

To hear disputes regarding the actions of the TWE and/or water

development/management staff in accordance with the procedures set forth in this Code;

c)

To approve or disapprove of water use permits in accordance with the

principles and procedures set forth in this Code; and

d)

To adopt regulations.

(2)

The TWE shall be a qualified hydrologist and water resource manager, with a

minimum educational level of a Master*s degree in a water-related field, or with a Bachelor*s

degree and not less than four (4) years’ experience or water resource management, water rights

administration, or water development or engineering. The TWE will be hired by the JBC.

(3)

Regulation of Reservation water being the lifeblood of the community and critical

to the conservation and enhancement of its resources, the TWE shall evenhandedly guard all the

interests involved in carrying out the duties and authorities of his office.

(4)

The TWE shall have the following duties and authorities:

a)

Administrative and Enforcement Functions

i)

to administer Reservation water rights, and ensure maximum

compliance with the Code and with the conditions of all permits, determinations,

orders, regulations, plans, policies, guidelines, and other actions taken by the

Board;

ii)

to enter upon Reservation lands to inspect methods of diversion,

withdrawal, and other activities affecting water quality and quantity, to install

measuring devices for the purpose of enforcing and administering this Code, and

to monitor water use, water quality, and diversions;

iii)

in an emergency, to remove, render inoperative, shut down, close,

seal, cap, modify, or otherwise control methods of diversion and withdrawal,

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obstructions to the flow of water, and activities adversely affecting water quality

and quantity, subject to expedited appeal to the Board by the affected person, as

provided in Part IV of this Code; and

iv)

to initiate, by citation and other means, enforcement proceedings

before the Board, or in Tribal Court or other court of competent jurisdiction for

violations of this Code, including injunctive relief.

b)

Advisory Functions

i)

to hire, supervise, and fire office and technical staff, provided that

all hiring and firing decisions are subject to the approval of the JBC;

ii)

to advise the Tribes on all water resource related development

planning issues, provide the Board with a semiannual report on water quality and

quantity and the status of water use on the Reservation, and provide suggestions,

alternatives, and recommendations for water quality management;

iii)

regulations;

to recommend to the Board changes to this Code and to its

iv)

to develop and submit an office budget, and office policies and

procedures to the Board for approval;

v)

to recommend certain land areas and waters on the Reservation to

the Board as suitable for dedication to certain beneficial uses; and

vi)

to recommend designation of surface and groundwater regions on

the Reservation as “critical management areas” and to propose specialized

provisions for management within those regions.

c)

Fact-Finding and Information Functions

i)

to research and determine water supply and quality characteristics

and development possibilities;

ii)

to collect, maintain, and analyze, on a continuing basis,

information regarding Reservation- and basin-wide water resources and quality,

including data on water, land, air quality, rangeland, and other factors actually or

potentially affecting Reservation water or tribal water rights;

iii)

to organize and develop a computerized database of Reservation

water resource information, organized in a form useful to tribal decision makers

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and Reservation residents, and provide periodic reports describing the overall

structure, use, and application of the database;

iv)

to perform regular research regarding the overall carrying capacity

of the Reservation*s water system, with a view in particular to discovering and

reporting the levels above or below which specific water use impairs or injures

overall water availability and use;

v)

to conduct public educational programs and develop educational

material regarding Reservation water rights and administration, irrigation

management, water quality, environmental issues, water conservation, and any

other pertinent issues as the latter may be determined by the Board;

vi)

to declare “surplus” or “drought” water supply conditions, such

determination to be made on the basis of hydrologic analysis and other substantial

evidence and in consideration of existing demands for water; and to prepare, at

the Board*s request, alternative scenarios for water supply given different climatic

trends and conditions for the use of the Board in setting priorities and preferred

uses during drought;

vii)

to determine the extent of potential effects on existing water users,

given hydrologic conditions, from proposed uses of Reservation water; and

viii) to assist all applicants for permits or licenses in assembling and

analyzing all hydrologic and environmental data required to be submitted with the

application and otherwise to assist in the preparation of the application.

d)

Research and Development Functions

i)

to initiate and undertake research and development activities

directed toward identifying financial support for water management and

development;

ii)

to identify new or analyze existing uses and means of developing,

managing, conserving, and otherwise protecting tribal water resources;

iii)

to identify promising research areas regarding tribal water

resources and to solicit research proposals by government, university, or private

sources;

iv)

to develop the internal tribal technical and managerial capabilities

to promote the direct involvement of tribal staff in the development and

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construction of water resource supply, distribution, and management facilities and

devices.

v)

to conduct hydrologic investigations to determine water needs; and

vi)

to study the feasibility of and make recommendations concerning a

Reservation-based water quality laboratory.

Section 11-8-3

Part 3 - Permit System for Water Use on the Wind River Reservation

Section 11-8-3 (A)

Permit or License Required

(1)

No person shall divert Treaty-based water or undertake an activity affecting or

involving such water without first obtaining a permit or license under this Part. Except when

such diversion or activity is preemptively allowed by federal law, a permit or license is required

for any of the following activities:

a)

Diversion of water from any stream course, spring or well;

b)

Drilling of any new well or modification of any existing well, including

domestic, irrigation, industrial, municipal, or oil and gas development-related wells;

c)

Discharging, injecting, or depositing any waste, wastewater, or other

contaminant into Reservation water;

d)

Changing the point of water diversion, whether of surface or groundwater;

e)

Changing the use of waters, or the place of use or the method of diversion

or application of waters;

f)

Transferring Reservation water outside the watershed of origin;

g)

Altering any stream course or stream bank for any purpose, including but

not limited to road construction and repair;

h)

Developing groundwater recharge projects;

i)

Generating hydropower;

j)

Storing or impounding water; and

k)

Dedicating water to instream flow.

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(2)

The issuance of a permit or license allows the activity therein described and

constitutes an undertaking by the permitee or licensee to comply with the conditions therein

stated and all tribal laws and regulations of general application covering such activity.

(3)

For purposes of this Code, any person possessing appropriative rights under

Wyoming law may receive a General Water Permit. Proof of appropriative rights under

Wyoming law shall be submitted to the TWE in accordance with regulations of the Board.

(4)

Any person proposing to undertake an activity which may affect Reservation

water may apply to the TWE for a Statement of No Permit Required, and the TWE may issue

such a Statement if he finds the activity will have a minimal impact on Reservation water or that

the activity or diversion is preemptively allowed by federal law. The Statement shall be limited

to the facts represented by the applicant. No fee shall be required for such application.

(5)

All permits and licenses issued under this Code are provisional and shall not be

construed to create an entitlement in the user beyond the provisional period nor to allow reliance

thereon by any other person.

Section 11-8-3 (B)

Permit System

The Permit System recognizes six (6) categories of permits. Any two (2) or more

categories may be combined into a single permit, as appropriate. Any permit may be made

subject to such conditions and stipulations as the Board may deem necessary in the public

interest.

Categories of Permits

(1)

1868 Water Permit. Grants or confirms a right to use a share of 1868 tribal water

or 1868 allottee derivative water to a user, and guides the present and future use and

appropriation of the 1868 water right. The permit applies to surface water and groundwater.

There shall be three (3) types of 1868 Water Permit, as follows:

a)

Type 1. 1868 tribal water permit, granted to a tribal member, Indian

allottee, or tribal entity, enterprise or political subdivision;

b)

Type II. 1868 allottee derivative water permit, granted to a successor in

interest of an allottee; and

c)

Type III. 1868 tribal water lease permit, granted to a person to use 1868

tribal water, upon payment to the Tribes at rates to be established by the JBC, in addition

to any applicable O&M charges.

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(2)

Permit for Changing Place of Method of Use, or Method of Application, or Point

of Diversion. Grants the right to change the location or purpose of water use, method of

application, or method or point of diversion.

(3)

Instream Flow Permit. Grants the right to the Tribes to maintain specified

instream flows and/or lake levels in reaches of or for entire streams or reservoirs on the

Reservation.

(4)

Watershed Transfer Permit. Grants the right to transfer treaty-based water outside

the watershed of origin.

(5)

Storage Permit. Grants the right to impound surface or groundwater for a

beneficial use.

(6)

General Water Permit. Grants or recognizes rights of use, appropriation, or

development of water not otherwise covered by another permit.

Section 11-8-3 (C)

License System

The License System recognizes four (4) categories of licenses. Any two (2) or more

categories may be combined into single license, as appropriate. Any license may be made

subject to such conditions and stipulations as the Board may deem necessary in the public

interest.

Categories of Licenses

(1)

Driller*s License. Grants a license to drill or cause to be drilled a well within the

Reservation to persons meeting tribal requirements for technical capability and bonding. The

issuance of a Driller*s License is contingent upon the applicant*s providing a satisfactory

description of his technical competence and financial stability, including a description of

relevant training and experience, procedures and equipment, current financial condition, and

disclosure of prior or existing claims; upon the posting of a bond in favor of the Tribes in an

amount, established pursuant to Board regulations, conditioned upon the faithful performance

and completion of all conditions and stipulations of the license; and upon the applicant*s written

undertaking to comply with tribal laws and regulations regarding record-keeping, logging, well

development, supervision and inspection by the TWE.

(2)

Stream Zone Alteration License. Grants the right to alter the streambed or banks.

A Stream Zone Alteration License is required for all persons engaging in activity that affects the

bed or banks of Reservation streams, including but not limited to construction of temporary

diversion structures, road and culvert construction and repair, logging operations, grazing

activities on the stream bank, and other activities affecting the stability of the stream channel.

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(3)

Discharge License. Grants the right to discharge waste, wastewater, or other

contaminant into the surface or groundwater of the Reservation, through the point discharge of

any substance, through the non-point discharge through landfills, septic tanks, or disposal pits, or

through injection into groundwater.

(4)

Well Construction License. Grants the right to construct a new well or modify an

existing well, and requires the submission of specific technical data, including construction

plans, effects on aquifer level and water quality, well pump test data, and lithologic logs.

Section 11-8-3 (D)

Application Procedure

(1)

Applications for any license or permit under this Part shall be made on forms

developed by the TWE, including particular information of facts that in the judgment of the

TWE are required for the proper processing of such applications.

(2)

An application fee for permits and licenses shall be established in the regulations

promulgated hereunder and shall be paid in advance to and collected by the Office of the TWE.

The fee may be waived by the Board in the case of financial hardship. Such fees shall be used in

part to defray the cost of reviewing the application and conducting a hearing.

(3)

The TWE shall provide public notice of the requirements of this Part and shall

allow continued historic water uses pending processing of the applications.

(4)

For purposes of this Code, any existing water use which was proven in the

General Adjudication and which formed the basis for a quantification of reserved water under

the General Adjudication shall presumptively entitle the applicant to a permit under this Part.

(5)

The TWE shall assist each applicant in the collection of data and the preparation

of the application to the extent the applicant, through lack of resources or technical knowledge,

requires such assistance.

(6)

Within sixty (60) days of receipt of the application, the TWE shall review each

permit application; perform investigations; prepare a report on each application; and recommend

approval or denial to the Board, which shall have the authority to grant or deny the permit.

Every decision of the Board must include factual findings which justify the decision, and must

be consistent with tribal water and land use laws, and Wyoming state water law when applicable.

(7)

The Board shall review all applications to determine whether the proposed use or

activity adversely affects tribal resources or other tribal interests, whether the proposed use or

activity is technically feasible, and whether the proposed use or activity is consistent with the

policies, purposes, and procedures described by this Code, and Wyoming state water law when

applicable.

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(8)

All applicants shall on request receive a hearing before the Board to provide an

opportunity for a full factual presentation and for public comment and testimony on the proposed

use or activity.

a)

Notice of such hearing will be published at the Board*s expense in a

newspaper of general circulation within the Reservation at least one (1) week prior to the

date of hearing. Notice shall also be posted in the tribal and BIA offices and such other

areas as may be deemed appropriate by the TWE;

b)

After the hearing, the Board shall promptly render a written decision on

the application:

i)

approving the permit without conditions;

ii)

approving the permit with conditions;

iii)

denying the permit; or

iv)

tabling action pending receipt of additional data or information;

and

c)

All proceedings of the hearing shall be recorded, and, if an appeal is

sought, a transcript of the hearing may be requested by the applicant or any other affected

party at his sole cost and expense.

(9)

If the Board approves the application, the TWE shall issue the appropriate permit

or license in conformity with the Board*s decision.

Section 11-8-3 (E)

Relinquishment of Tribal Water Rights: Sole Method of Acquisition

(1)

Voluntary Relinquishment of Claims or Rights. Any holder or claimant of any

right in or to the waters of the Reservation may voluntarily relinquish all or a portion of such

right to the Tribes by any affirmative act indicating an intent to relinquish.

(2)

No Loss by Adverse Possession, Prescription, Estoppel, or Acquiescence;

Nontransferability

a)

No right to use or otherwise affect the quantity, level, flow, pressure,

quality, or temperature of water may be acquired by adverse possession, prescription,

estoppel, or acquiescence; and

b)

No right granted under this Code may be transferred, exchanged, sold, or

otherwise conveyed except as provided in this Code.

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Section 11-8-3 (F)

(1)

Prohibited Acts; Violation of Permit Conditions or Code

Prohibited Acts

a)

No person shall:

i)

forcibly, or by bribery, attempted bribery, threat, or other corrupt

practice, obstruct or impede the due administration of this Code;

ii)

commit fraud, or knowingly assist another in the commission of

fraud, with the intent to evade or defeat the administration of this Code or costs

imposed or assessed;

iii)

falsely verify by written declaration any permit, form, or other

document, or to intentionally withhold data required to be submitted by law;

iv)

violate the conditions or stipulations of his permit or license

including taking more water than is allowed by permit; or

v)

wilfully take, alter or damage treaty-based water quality or water

rights;

b)

Any Indian who commits any of the above prohibited acts, upon

conviction thereof, shall be sentenced to a term of imprisonment not to exceed six (6)

months, or be ordered to pay a fine not to exceed $1,000.00, or both;

c)

Any person who commits any of the above-prohibited acts, or whose

employees or agents in the course of their employment or agency commit any of the

above-prohibited acts, shall be subject to civil proceedings before the Board on citation

by the TWE. On a finding of violation, the Board may impose any of the following

sanctions, or any combination thereof:

i)

money damages;

ii)

restitution;

iii)

cancellation of the holder*s lease, if the lands to which the permit

applies or on which the violation occurred are tribal lands;

iv)

injunctive relief;

v)

affirmative remedial action;

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vi)

additional conditions or limitations upon the holder*s permit or

license, including limitation of the amount of water permitted to be diverted;

vii)

suspension of the permit or license for a certain term;

viii) exclusion from the territory of the Reservation, if the violator is

subject to exclusion under federal law;

ix)

forfeiture of any permit or license;

x)

temporary or permanent disqualification from eligibility for any

permit or license; and

xi)

costs.

(2)

Appeal from a decision of the Board may be had by the affected person to Tribal

Court or Wyoming courts, in accordance with the provisions of Part 6. The interest of the Tribes

shall be represented by the TWE or legal counsel of the Tribes.

(3)

In the case of criminal prosecutions of any Indian, proceedings for penalties under

this Section 11-8-3 (F) shall be brought in the name of the Shoshone and Northern Arapaho

Tribes in the Tribal Court, by the tribal prosecutor.

Section 11-8-4

Part 4 - Proceedings on Exercise of TWE’s Emergency Enforcement

Powers

When in the exercise of his authority under Section 11-8-2 (B)(4)(a)(iii), the TWE

removes, renders inoperative, shuts down, closes, seals, caps or otherwise controls any method

of diversion or withdrawal, any obstruction to the flow of water, or any activities adversely

affecting the quality or quantity of treaty-based or tribally permitted water, the affected person

shall have the following appeal rights:

Section 11-8-4 (A)

Upon petition, filed with the Board not later than fourteen (14) days from the date of the

TWE*s action, the Board, within three (3) days of filing such petition, will conduct a hearing to

receive evidence from the person affected adversely by the TWE*s action. The TWE shall

provide to the Board on its request certified copies of all documents, things or other information

which formed the basis for his action. The Board may modify or reverse such action of the TWE

only where such action is not supported by hydrologic fact, tribal policy, or law, or is clearly

arbitrary and capricious. The Board shall within forty-eight (48) hours issue a written decision

stating the grounds therefor.

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Section 11-8-4 (B)

If the Board affirms the TWE*s action, the affected person may appeal the decision of the

Board to the Tribal Court or Wyoming courts pursuant to Part 6 of this Code.

Section 11-8-5

Part 5 - Water Management Procedures

Section 11-8-5 (A)

Water Supply Management

(1)

Declaration of Hydrologic Conditions. At the beginning of each irrigation

season, the TWE shall prepare a water supply forecast, and shall declare the existence of surplus,

normal, and drought conditions, and the approximate extent of time in which each condition will

exist each year. As a result of widely varying hydrologic conditions, the TWE may designate

one portion of the Reservation in surplus and another in drought condition. These designations

shall be based on hydrologic evidence, in consideration of total demand, as follows:

a)

Normal Condition. A condition in which the mean annual flow for the

watershed is achieved;

b)

Surplus Condition. A condition in which the mean annual flow of the

watershed is exceeded and there is excess water above demand on an entire stream or a

specific reach of stream including the needs of downstream users. For purposes of

determining demand under this paragraph, appropriative rights under state permits shall

be limited to 2 cfs/70 acres; and

c)

Drought Condition. A condition in which the mean annual flow of the

watershed is not achieved and insufficient water exists to satisfy the demand on an entire

stream or a specified reach of stream, including the needs of downstream users. For

purposes of determining demand under this paragraph, appropriative rights under state

permits shall be limited to 1 cfs/ 70 acres.

(2)

Water Allocation

a)

Guidelines

i)

water is to be allocated according to priority date and in

accordance with historic practices of rotation and scheduling; and

ii)

water delivery systems on the reservation shall divert only that

quantity of water to which they are legally entitled except during surplus and

drought conditions as specified in this Part;

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b)

Surplus. Surplus water that may be used beneficially and efficiently will

be allocated by the Board, based on the recommendation of the TWE, ratably among

1868 users first; later priorities are then allocated a proportionate share of the remainder;

and

c)

Drought. In drought conditions, water will be allocated on a priority

basis, unless special agreements between the Tribes and other entities provide for a

temporary change of water allocation formulas:

i)

1868 water rights will receive first priority for water, with all later

rights honored as supply is available;

ii)

all rights later than 1868 are than satisfied; and

iii)

if a drought condition prevails such that not enough water exists to

satisfy even 1868 claims, all 1868 water users will have water claims met, but at a

lesser diversion rate than that specified in the 1868 Water Permit. The diversion

rate shall be set according to the specific demands in relation to overall supply.

The Board may set temporary use priorities during periods of drought after notice

and hearing.

Section 11-8-5 (B)

Public Safety Emergencies

To prevent or to cope with an emergency involving water quality, water supply, drought,

flood or potentially dangerous environmental conditions, the Board is authorized to take any

steps necessary to secure prompt and effective assistance and corrective action to protect the

health and welfare of the Tribes and Reservation natural resources. Such action includes, but is

not limited to:

(1)

Seeking assistance from federal and state emergency management agencies for

contamination clean-up, flood, or other emergency situations involving public safety;

(2)

Developing the internal tribal capabilities for emergency response teams,

including training and equipment purchases;

(3)

Developing an emergency communications network for Reservation lands and

people for the purpose of flood or other emergency warnings; and

(4)

Developing additional groundwater or authorizing additional storage facilities for

Reservation residents and activities and establishing specific waste-prevention or conservation

incentives for Reservation water users.

Section 11-8-6 (A)

Review of TWE Decisions

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(1)

Request for Hearing. Unless sooner required by other provisions of this Code,

within thirty (30) days after issuance of a decision of the TWE, any affected person may file a

written request for a hearing before the Board, which shall review and hear the matter.

(2)

Finality of TWE Decision. If no request for a hearing before the Board is made

with the time allowed, the decision of the TWE shall be final and not be subject to appeal to the

Board or to any court.

(3)

Hearing Before Board. Upon the proper and timely filing of an appeal, the Board

will conduct a recorded hearing to receive evidence from the appellant and the TWE. The Board

will issue a written final decision. Appeals from final decisions of the Board shall be made only

to the Tribal Court pursuant to Section 11-8-6 (B) of this Part.

(4)

Finality of Board Decision. If no appeal to the Tribal Court is filed within the

time allowed, any decision or ruling of the Board shall be binding and enforceable and is not

subject to review by any court.

Section 11-8-6 (B)

Court Appeals

(1)

Tribal Court Review. The Tribal Court is empowered to hear appeals from any

final decisions or ruling of the Board.

(2)

Filing of Appeal. Appeals of Board decisions or rulings shall be filed with the

Tribal Court no later than thirty (30) days from issuance of such decision or ruling of the Board.

(3)

Exhaustion. No person may seek review by the Tribal Court of a decision or

ruling of the TWE or Board unless such person has first exhausted his administrative appeal

rights provided by this Code.

(4)

Standard of Review. Unless otherwise provided by this Code, appeals to the

Tribal Court shall be limited to review of the record of the Board*s administrative decision or

ruling. The Tribal Court may modify, reverse, or remand a decision or ruling of the Board only

where such decision or ruling is without substantial basis in fact, is contrary to tribal policy or

tribal law, or is clearly arbitrary or capricious.

(5)

Administrative Record. Upon receipt by the Board of notice that an appeal has

been filed with the Tribal Court, the Board shall certify and transmit to the Clerk of Tribal Court

the administrative record, including all documents, things, transcripts and other information,

which formed the basis for the decision or ruling being appealed.

(6)

Wyoming Court Review. Decisions of the Board on a State-held water right may,

in addition to other remedies provided herein, be appealed to the Wyoming courts pursuant to

applicable provisions of Title 41 of the Wyoming statutes.

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Section 11-8-7

Part 7 - Miscellaneous Provisions

Section 11-8-7 (A)

The Tribes, through the JBC, will appropriate from available funds sufficient resources to

administer the provisions of this Code.

Section 11-8-7 (B)

The General Councils of both Tribes and the JBC hereby waive any sovereign immunity

from suit which may inure to the benefit of the Board, or the TWE, provided that any suit against

the Board and the TWE must be brought in Tribal Court, or in the case of State-held water rights

to the Wyoming courts, and further provided that such waiver is limited to the extent necessary

to subject the Board and the TWE to suit for the sole purposes of declaring, adjudicating, and

enforcing the parties* rights and duties as more fully described in this Code and any regulations

promulgated hereunder. The waiver specifically does not waive the Board*s or the TWE*s

immunity from suits for monetary damages, and specifically does not waive the sovereign

immunity of the JBC, of either of the Tribes, or their General Councils.

Section 11-8-7 (C)

Before formal adoption of a proposed regulation, the Board shall publish proposed

regulations in order to provide interested parties an opportunity to comment. The notice will

invite written comments and give a deadline for their submission of not less than seven (7) days

after publication of notice. The Board may, but is not obligated to, hold a public hearing; in that

event, it will announce the time and place at which oral testimony will be heard.

(1)

A regulation will become effective immediately after the closing date for

comments or on the date otherwise specified therein.

(2)

A copy of the regulations will be filed and made available for public inspection at

the TWE office.

Section 11-8-7 (D)

Any pronoun used herein shall refer to any gender and to any number as the context

requires or permits.

Section 11-8-7 (E)

All records required or allowed to be maintained by the TWE or the Board shall be public

records, provided however, that the TWE shall deny the right of public inspection of the

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following records, unless otherwise provided by law, on the ground that disclosure would be

contrary to the public interest:

(1)

Investigatory files compiled for any law enforcement or prosecution purposes.

(2)

Interagency or interagency memoranda or letters which would not be available by

law to a private party in litigation with the agency.

(3)

Medical, psychological, and sociological data on individual persons, exclusive of

autopsy reports.

(4)

Records that are protected from disclosure by court order or federal or tribal law.

(5)

Personnel files and letters of reference, except those files shall be available to the

duly elected and appointed officials who supervise the work of the person in interest.

(6)

Trade secrets, privileged information and proprietary commercial, financial,

geological, or geophysical data furnished by or obtained from any person.

Any persons denied the right to inspect any record described above may apply to the

Tribal Court for an order directing the custodian of the record to show cause why he should not

permit the inspection. Notwithstanding the fact that the record might otherwise be available to

public inspection, any persons, including the TWE, may apply to the Board for an order

restricting disclosure of the particular record, and the Board, after hearing, may issue such an

order upon a finding that disclosure would cause substantial injury to the public interest. The

Board*s decision shall be review able de novo by the Tribal Court.

Section 11-8-7 (F)

In the event any provision of this Code or the application thereof to any person or

circumstances is held invalid, the remainder of this Code shall not be affected thereby and to this

end the provisions of this Code are declared to be severable.

Section 11-8-8

Part 8 - Effective Date

The provisions of this Code shall be effective as of March 18, 1991, and shall remain in

effect until repealed or amended.

History: Adopted by the Northern Arapaho General Council on March 18, 1991, Resolution No. 6675; by the

Shoshone General Council on March 16, 1991, Resolution No. 6680; and by the Joint Business Council on

March 28, 1991, Resolution No. 6681. Effective Date: March 18, 1991.

Restated Nov. 1, 2004, by the Shoshone & Arapaho Tribal Court.

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