Ute Distribution Corp. v. Ute Indian Tribe, 96-4194

Decision Date29 July 1998
Docket NumberNo. 96-4194,96-4194
Citation149 F.3d 1260
Parties98 CJ C.A.R. 4081 UTE DISTRIBUTION CORPORATION, a Utah corporation, Plaintiff-Appellee, v. UTE INDIAN TRIBE, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Max D. Wheeler, Snow, Christensen & Martineau, Salt Lake City, Utah, (Camille N. Johnson, Snow, Christensen & Martineau, Salt Lake City, Utah, with him on the brief), for Plaintiff-Appellee.

Robert S. Thompson, III, Office of Legal Counsel, Ute Indian Tribe, Fort Duchesne Utah, (Sandra Hansen, Office of Legal Counsel, Ute Indian Tribe, Fort Duchesne, Utah, Tod J. Smith, Whiteing & Smith, Boulder, Colorado, with him on the brief), for Defendant-Appellant.

Before BALDOCK, HOLLOWAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

The Ute Indian Tribe ("Tribe") appeals the district court's ruling that the Tribe's immunity was waived by the provisions of the Ute Partition and Termination Act of 1954 ("UPA") in suits concerning certain tribal assets jointly managed by the Tribal Business Committee and the Ute Distribution Corporation ("UDC"). Exercising jurisdiction pursuant to 28 U.S.C. § 1292, this court reverses.

I. BACKGROUND

The Ute Partition and Termination Act of 1954, 25 U.S.C. §§ 677-677aa, was one of a series of Indian termination statutes enacted during a period in which the federal government pursued a policy of terminating its supervisory responsibilities for Indian tribes. See Affiliated Ute Citizens v. United States, 406 U.S. 128, 133 n. 1, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); Hackford v. Babbitt, 14 F.3d 1457, 1461-62 (10th Cir.1994); Ute Distrib. Corp. v. United States, 938 F.2d 1157, 1159 (10th Cir.1991).

The termination statutes in general provided for the termination of federal guardianship over certain tribes deemed ready to assimilate into Anglo-society. The statutes terminated the federal trust relationship with the designated tribes and terminated the tribes' and individual tribal members' eligibility for special federal services. In addition, the statutes ended the tribes' coverage under federal Indian laws and imposed state jurisdiction over the terminated tribes. The termination statutes also typically provided for the division and distribution of tribal land and other assets to individual members of terminated tribes and ended federal restrictions on the alienation of such land. 1 See generally Felix S. Cohen, Handbook of Federal Indian Law 170-80, 811-13 (1982); Robert N. Clinton et al., American Indian Law 155-58 (3d ed.1991).

The UPA focused on the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah. The UPA did not terminate federal supervision over the entire Ute Indian Tribe, but instead divided the Ute Indian Tribe into two groups, "full-blood" members and "mixed-blood" members, 2 and provided for the termination of federal supervision only as to the mixed-blood members. 3 The stated purposes of the UPA were to partition and distribute the assets of the Ute Indian Tribe between the mixed-blood group and full-blood group; to end federal supervision over the trust and restricted property of the mixed-blood group; and to create a development program for the full-blood members to assist them in preparing for later termination of federal supervision over their property. See 25 U.S.C. § 677.

The UPA directed that membership rolls be prepared for the full-blood and mixed-blood groups. See id. § 677g. In 1956, the Secretary of Interior published the final membership rolls listing 1314 full-blood members (approximately 73%) and 490 mixed-blood members (approximately 27%). See 21 Fed.Reg. 2208-12 (Apr. 5, 1956). The UPA provided that, upon publication of the final rolls, the Ute Indian Tribe was to "consist exclusively of full-blood members" and the mixed-blood group was to retain "no interest therein except as otherwise provided" in the UPA. 25 U.S.C. § 677d.

After the final rolls were published, the Tribal Business Committee, representing the full-blood members, and the "authorized representatives" of the mixed-blood members were directed to divide the tribal assets 4 "then susceptible to equitable and practicable distribution" (the "divisible assets"). Id. § 677i. The divisible assets were to be divided according to the relative number of persons on the final membership rolls of each group. See id. The assets of the mixed-blood group were then to be distributed to the individual mixed-blood Utes. See id. § 677l.

The UPA provided for the termination of federal supervision over the assets which were distributed to the individual members of the mixed-blood group. Federal supervision remained, however, over the assets partitioned to the full-blood group. Federal supervision also remained over the "unadjudicated or unliquidated claims against the United States, all gas, oil, and mineral rights of every kind, and all other assets not susceptible to equitable and practicable distribution" (the "indivisible assets"). Id. § 677i. These indivisible assets remained in trust for the benefit of both the full-blood and mixed-blood groups and were to be "managed jointly by the Tribal Business Committee and the authorized representatives of the mixed-blood group, subject to such supervision by the Secretary [of Interior] as is otherwise required by law." Id.

In 1961, federal guardianship over the mixed-blood Utes was officially terminated by issuance of a proclamation of the Secretary of Interior. See 26 Fed.Reg. 8042 (1961); see also 25 U.S.C. § 677v (requiring publication of proclamation declaring termination). Once this proclamation was issued, the mixed-blood Utes were no longer "entitled to any of the services performed for Indians because of [their] status as ... Indian[s]," and all federal statutes "affect[ing] Indians because of their status as Indians [were] no longer ... applicable to such [terminated Utes]," who were instead subjected to state laws. 25 U.S.C. § 677v. Although the proclamation ended federal supervision over the assets distributed to the mixed-blood group, it did not terminate the trust status of the indivisible assets. See Affiliated Ute Citizens, 406 U.S. at 139, 92 S.Ct. 1456. 5

II. DISTRICT COURT OPINION

In 1995, the UDC, the mixed-blood Utes' "authorized representative" for purposes of managing the indivisible assets with the Tribal Business Committee, 6 brought this action seeking a declaratory judgment that certain tribal water rights were not partitioned, that they remain in trust for the benefit of the mixed-blood and full-blood Utes, and that they are subject to joint management by the UDC and the Tribal Business Committee under the supervision of the Secretary of Interior. See Ute Distrib. Corp. v. Secretary of Interior, 934 F.Supp. 1302, 1306 (D.Utah 1996). The Tribe responded by filing a motion to dismiss, asserting, among other things, that it is immune from suit and has not waived its immunity by consenting to be sued. See id.

The district court held the Tribe was not immune from suit, determining that the UPA limited the Tribe's immunity with respect to the adjudication of issues concerning the joint management of the indivisible assets. See id. at 1307. The district court reached this conclusion by determining that although the UPA "lacks any language expressly authorizing a cause of action in federal court, the structure and purpose of the Act clearly divests the Tribe" of its immunity in suits concerning the indivisible tribal assets. Id. at 1309.

In examining the structure and purpose of the UPA, the district court noted that the UPA mandates the joint management of the indivisible tribal assets by the Tribal Business Committee and the UDC under the supervision of the Secretary of Interior and, as to those assets, preserves the federal trust relationship with both the mixed-blood and full-blood members. See id. at 1308-10. The court therefore determined the indivisible assets are "not under the traditional sovereign control of the Ute Tribe, but are held in trust by the Government for the benefit of both the Tribe and the [UDC], who must jointly share the management responsibilities for the indivisible assets." Id. at 1310. The court then concluded it would be

incongruous with the structure and intent of the UPA to conclude that the Ute Indian Tribe may assert sovereign immunity in actions brought to determine the status of, or rights in, assets held in trust by the United States for the benefit of both the Tribe and the mixed-bloods. Such a result would frustrate the purpose of the Act by effectively allowing the Tribe to exclude the mixed-bloods' representative, the UDC, from participating in the joint management of the indivisible assets, and would clearly run counter to the plain language of the UPA requiring that such assets "shall be managed jointly by the Tribal Business Committee and the [UDC]."

Id. (alteration in original) (quoting 25 U.S.C. § 677i).

In support of its ruling that the Tribe was not immune from suit, the district court further concluded that allowing the Tribe to assert immunity "would contradict the overriding national interest of ensuring that federal trust property is managed in an orderly manner according to the joint scheme set forth by Congress in the UPA." Id.

III. DISCUSSION

The Tribe asserts the district court erred in concluding it was not immune from suit and thus denying its motion to dismiss. The Tribe argues that, given the absence of any language in the UPA expressly authorizing a suit in federal court against the Tribe to enforce the joint management provisions of the UPA, the district court improperly determined the Tribe's immunity from suit was waived by the UPA. The UDC argues the district court properly found that, based on the "plain language" of the joint management provisions of the UPA, the Tribe's immunity from suit was waived for the adjudication of issues concerning the indivisible assets. Alternatively, the UDC contends that the "sue and be...

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