Ute Indian Tribe of the Uintah and Ouray Reservation v. State of Utah, 96-4073

• Decision Date: 08 May 1997
• Docket Number: No. 96-4073,96-4073
• Citation: 114 F.3d 1513
• Parties: 97 CJ C.A.R. 692 UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, Plaintiff--Appellee, v. STATE OF UTAH; Duchesne County, a political subdivision of the State of Utah; Roosevelt City, a municipal corporation; Duchesne City, a municipal corporation; Uintah County, a political subdivision of the State of Utah, Defendants--Appellants, and United States of America, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1513

114 F.3d 1513

97 CJ C.A.R. 692

UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION Plaintiff--Appellee, v. STATE OF UTAH; Duchesne County, a political subdivision of the State of Utah; Roosevelt City, a municipal corporation Duchesne City, a municipal corporation; Uintah County, a political subdivision of the State of Utah, Defendants--Appellants and United States of America, Amicus Curiae.

No. 96-4073.

United States Court of Appeals Tenth Circuit.

May 8, 1997.

John W. Andrews, Assistant Attorney General (Jan Graham, Attorney General, Carol Clawson, Solicitor General, Reed Richards, Chief Deputy Attorney General, and Michael M. Quealy, Assistant Attorney General, with him on the brief), Office of the Attorney General for the State of Utah, Salt Lake City, UT, for Defendant-Appellant State of Utah.

JoAnn B. Stringham, Uintah County Attorney, Vernal, UT, on the briefs, for Defendant-Appellant Uintah County.

Herbert W. Gillespie, Duchesne County Attorney, Roosevelt, UT, on the briefs, for Defendant-Appellant Duchesne County.

Robert S. Thompson, III, General Counsel, Ute Indian Tribe, Fort Duchesne, UT (Sandra Hansen, Deputy General Counsel, Ute Indian Tribe, Fort Duchesne, UT, and Tod J. Smith, Whiteing & Smith, Boulder, CO, with him on the brief), for Plaintiff-Appellee.

Robert L. Klarquist, U.S. Attorney (Lois J. Schiffer, Assistant Attorney General, Edward J. Shawaker, U.S. Attorney, and Curtis G. Berkey, U.S. Attorney, with him on the brief), Department of Justice, Washington, DC, appearing for amicus curiae United States of America.

Before TACHA, GODBOLD, ^* and HOLLOWAY, Circuit Judges.

TACHA, Circuit Judge.

This appeal requires us to address once again the status of the Uintah Valley Indian Reservation. In the district court, the Ute Indian Tribe ("Tribe") sought to obtain a permanent injunction preventing the State of Utah, the counties of Duchesne and Uintah, and the cities of Roosevelt and Duchesne ("state and local defendants") from exercising civil and criminal jurisdiction on certain lands within the original exterior boundary of the Uintah Valley Reservation in a manner inconsistent with our en banc opinion in Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir.1985) (en banc), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). In opposing the injunction, the state and local defendants rely on Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994), in which the Supreme Court held, contrary to our decision in Ute Indian Tribe, that the lands in question are not part of the Uintah Valley Reservation. Notwithstanding Hagen, the district court held that it was bound under the "law of the case" doctrine to follow our mandate in Ute Indian Tribe and thus, that it was without authority to alter the existing jurisdictional boundaries as set forth in Ute Indian Tribe. In light of the inconsistency between Ute Indian Tribe and Hagen, however, the district court requested that we issue instructions on how to proceed and suggested that we construe the request as an invitation to recall our mandate in Ute Indian Tribe.

The state and local defendants appeal, arguing that (1) our en banc decision in Ute Indian Tribe does not preclude their exercise of jurisdiction over former reservation lands under the doctrines of law of the case, collateral estoppel, or res judicata and (2) Hagen effectively overruled Ute Indian Tribe, permitting the defendants to exercise jurisdiction over all the lands originally held to be within reservation boundaries. Along with their appeal, the state and local defendants have filed a motion to recall, in its entirety, our mandate issued pursuant to Ute Indian Tribe. The United States as amicus curiae urges us to recall and modify the mandate in Ute Indian Tribe only to the extent that it directly conflicts with Hagen. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because we conclude that the boundaries of the Uintah Valley Reservation must be redetermined in light of Hagen, we modify our holding in Ute Indian Tribe to the extent that it directly conflicts with the holding in Hagen.

BACKGROUND

I. INTRODUCTION

This case is unlike other reservation diminishment cases in which courts must decide The State of Utah sought to relitigate the boundary issue in three criminal actions commenced in the Utah state courts. In these cases, the Utah Supreme Court concluded that the 1902-1905 allotment legislation had diminished the Uintah Valley Reservation. State v. Hagen, 858 P.2d 925 (Utah 1992); State v. Coando, 858 P.2d 926 (Utah 1992); State v. Perank, 858 P.2d 927 (Utah 1992).

                whether congressional enactments opening reservation lands to non-Indian settlement have diminished or disestablished reservation boundaries.   See, e.g., Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984);  Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977);  DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975);  Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973);  Seymour v. Superintendent of Wash.  State Penitentiary, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962);  United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195 (1909).  Over a decade ago, we answered that question when we addressed whether congressional enactments from 1902 through 1905 had the effect of diminishing the Uintah Valley Reservation.  Ute Indian Tribe, 773 F.2d at 1093.   Sitting en banc in 1985, we held that the Reservation had not been diminished.  Id.  The Supreme Court denied certiorari on December 1, 1986.  Utah v. Ute Indian Tribe, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986)
                

In 1994, the Supreme Court granted certiorari "to resolve the direct conflict between these decisions of the Tenth Circuit and the Utah Supreme Court on the question whether the Uintah Reservation has been diminished." Hagen, 510 U.S. at 409, 114 S.Ct. at 964. The Supreme Court expressly disagreed with our decision in Ute Indian Tribe and held that the Uintah Valley Reservation had been diminished. Id. at 421-22, 114 S.Ct. at 970-71. In this appeal, we decide whether to modify our judgment in Ute Indian Tribe, after the time for rehearing has passed, in light of its conflict with a later, contrary decision of the Supreme Court.

II. UTE INDIAN TRIBE I-III: THE DISTRICT COURT, PANEL, AND EN BANC OPINIONS

In 1975, the Tribe sought to exercise jurisdiction over all of the land originally encompassed in the Uintah Valley Reservation pursuant to the Tribe's newly enacted Law and Order Code. When non-Indians living in and around several towns within the original boundaries protested the action, the Tribe sought declaratory and injunctive relief in federal court to establish the exterior boundaries of the Uintah Valley Reservation and to restrain the state and local defendants from interfering with enforcement of the Law and Order Code within those boundaries. The Tribe argued that the original boundaries of the Uintah Valley Reservation, established by executive order in 1861 and confirmed by Congress in 1864, continued to exist undiminished. The Tribe thus argued that it had jurisdiction over all of the lands encompassed within the original boundaries of the Reservation because such lands were "Indian country" as defined by 18 U.S.C. § 1151.

On the other hand, the state and local defendants argued that congressional enactments from 1902 through 1905, opening Reservation lands to non-Indian settlement and setting aside lands for a national forest reserve, had the effect of diminishing the Uintah Valley Reservation. The defendants also argued that congressional enactments from 1894 to 1897 had the effect of completely disestablishing the Tribe's Uncompahgre Reservation.

In addressing the parties arguments, the district court gave a comprehensive summary of the relevant legislation, legislative history, contemporaneous interpretations by the executive branch, and other circumstances surrounding the enactment of the legislation. We therefore only briefly summarize the legislative treatment of the lands below.

A. Legislative Treatment of Reservation Lands

1. The Uintah Valley Reservation

In 1902, Congress passed legislation directing the Secretary of the Interior to make individual allotments out of the Uintah Valley Reservation by October 1, 1903, provided

that a majority of the adult male members of the Ute Indians consented. Act of May 27, 1902, ch. 888, 32 Stat. 263, 263-64 ("1902 Act"). The 1902 Act stated that after October 1, 1903, "all the unallotted lands within said reservation shall be restored to the public domain " and subject to entry by non-Indians under the homestead laws. Id. (emphasis added). Congress delayed the allotment process, however, and extended the opening date in 1903 and again in 1904. Act of Mar. 3, 1903, ch. 994, 32 Stat. 982, 997-98; Act of Apr. 21, 1904, ch. 1402, 33 Stat. 189, 207-08. In 1905, Congress extended the opening date a third time--to September 1, 1905--and directed the Secretary to allot the Reservation unilaterally if the Tribe's consent was not obtained. Act of Mar. 3, 1905, ch. 1479, 33 Stat. 1048, 1069-70 ("1905 Act"). The 1905 Act did not contain the same language restoring the unallotted and unreserved lands to the "public domain," but provided that such lands "shall be disposed of under the general provisions of the homestead and townsite laws of the United States." Id. (emphasis added).

2. The National Forest Lands

In addition to extending the time of entry under the 1902 Act and describing the entry process, the 1905 Act authorized the President to "set apart and reserve" lands in the Reservation as a forest reserve prior to opening. 33 Stat. 1070. Pursuant to this power, on July 14, 1905, President Theodore Roosevelt issued a proclamation designating some 1,010,000 acres within the Uintah Valley Reservation as an addition to the...