Ute Indian Tribe of the Uintah v. Myton

• Decision Date: 29 August 2016
• Docket Number: No. 15-4080,15-4080
• Citation: 835 F.3d 1255
• Parties: Ute Indian Tribe of the Uintah and Ouray Reservation, Plaintiff–Appellant v. Myton, a municipal corporation, Defendant–Appellee, and 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; Wasatch County; Gary Herbert, in his capacity as Governor of Utah; Sean D. Reyes, in his capacity as Attorney General of Utah, Defendants. United States of America; The State of Utah, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

835 F.3d 1255

Ute Indian Tribe of the Uintah and Ouray Reservation, Plaintiff–Appellant

v.Myton, a municipal corporation, Defendant–Appellee,andDuchesne 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; Wasatch County; Gary Herbert, in his capacity as Governor of Utah; Sean D. Reyes, in his capacity as Attorney General of Utah, Defendants.

United States of America; The State of Utah, Amici Curiae.

No. 15-4080

United States Court of Appeals, Tenth Circuit.

Filed August 29, 2016

Frances C. Bassett and Jeffrey S. Rasmussen (Thomas W. Fredericks and Jeremy J. Patterson, with them on the briefs), Fredericks Peebles & Morgan LLP, Louisville, Colorado, for Plaintiff–Appellant.

J. Craig Smith (Clark R. Nielsen, Stephen L. Henriod, and Brett M. Coombs, with him on the brief), Smith Hartvigsen, PLLC, Salt Lake City, Utah, for Defendant–Appellee.

Gina L. Allery, Attorney, Environmental and Natural Resources Division of the United States Department of Justice, Washington, D.C. (John C. Cruden, Assistant Attorney General, and Jennifer S. Neumann, Attorney, Environmental and Natural Resources Division of the United States Department of Justice, Washington, D.C., Barbara Coen, United States Department of the Interior, Washington, D.C., and Grant Vaughn, United States Department of the Interior, Salt Lake City, Utah, with her on the brief), for amicus curiae United States, in support of Plaintiff–Appellant.

Sean D. Reyes, Attorney General, Randy S. Hunter and Katharine H. Kinsman, Assistant Attorneys General, Tyler R. Green, Solicitor General, and Stanford E. Purser, Deputy Solicitor General, State of Utah, Salt Lake City, Utah, for amicus curiae State of Utah, in support of Defendant–Appellee.

Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges.

ORDER

This matter is before the court, sua sponte , to amend one sentence on page 17 of the court's August 9, 2016 decision. A copy of the amended Opinion with the change to page 17 is attached to this order. The clerk is directed to reissue the Opinion forthwith and nunc pro tunc to the original filing date.

GORSUCH

, Circuit Judge.

We're beginning to think we have an inkling of Sisyphus's fate. Courts of law exist to resolve disputes so that both sides might move on with their lives. Yet here we are, forty years in, issuing our seventh opinion in the Ute

line and still addressing the same arguments we have addressed so many times before. Thirty years ago, this court decided all boundary disputes between the Ute Indian Tribe, the State of Utah, and its subdivisions. The only thing that remained was for the district court to memorialize that mandate in a permanent injunction. Twenty years ago, we modified our mandate in one respect, but stressed that in all others our decision of a decade earlier remained in place. Once more, we expected this boundary dispute to march expeditiously to its end. Yet just last year the State of Utah and several of its counties sought to relitigate those same boundaries.

And now one of its cities tries to do the same thing today. Over the last forty years the questions haven't changed—and neither have our answers. We just keep rolling the rock.

*

To understand how this very old fight arrives back before us today, a brief dip into Western history helps. Beginning in the 1860s and under pressure to make way for incoming settlers, the federal government forced members of the Ute Indian Tribe in Utah onto a new reservation. Like most reservations established around that time, the land the Utes received represented but a portion of their historic lands and pretty undesirable land at that. See Floyd A. O'Neil, The Reluctant Suzerainty: The Uintah and Ouray Reservation , 39 Utah Hist. Q. 129, 130-31 (1971). But, as these things often went, as the decades wore on and settlement pressures continued to increase the Tribe's land began to look a good deal more alluring. See id. at 137-38. By 1905, Congress authorized the Secretary of the Interior to break up the Ute reservation by assigning individual plots to individual tribal members and allotting any land left over (and a very great deal was sure to be left over) to interested homesteaders. In exactly this way, massive swaths of former Ute reservation lands passed back into the public domain. See generally Ute Indian Tribe v. Utah (Ute I ), 521 F.Supp. 1072, 1092–1127 (D. Utah 1981)

.

That is, until 1945. Instead of disassembling reservations, Congress by now wished to reassemble them. While by this point the former Ute reservation had been opened to nontribal settlement for forty years, large portions still remained unclaimed and sitting in the hands of the Secretary of the Interior. With Congress's permission, the Secretary in 1945 issued an order returning these unallotted lands, about some 217,000 acres, to tribal jurisdiction. See Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984; Order of Restoration, 10 Fed. Reg. 12,409 (Oct. 2, 1945)

; Ute Indian Tribe v. Utah (Ute II ), 716 F.2d 1298, 1312–13 (10th Cir. 1983).

The litigation surrounding these events and their upshot began in earnest in 1975. That year the Ute Tribe filed a lawsuit in federal court, alleging that the State of Utah and several local governments were busy prosecuting tribal members for crimes committed on tribal lands, even though (constitutionally supreme) federal law generally assigns criminal enforcement responsibilities in “Indian country” to federal and tribal officials, not state or local ones. See 18 U.S.C. §§ 1151

-1152, 1162 ; Cheyenne–Arapaho Tribes of Okla. v. Oklahoma , 618 F.2d 665, 668 (10th Cir. 1980). For their part, the State and its subdivisions responded that the lands in question didn't qualify as Indian country because the 1905 legislation that opened reservation lands to outside settlement had the effect of diminishing or disestablishing the Utes' reservation. See

Ute I , 521 F.Supp. at 1075–79.

It took a decade and an exhaustive adversarial process, but in 1985 this court finally resolved the issue en banc in a case the parties call Ute III

. This court sided with the Tribe and, in a nutshell, held that all lands encompassed within the original Ute reservation boundaries established beginning in the 1860s—including all those lands that passed to non-Indian settlers between 1905 and 1945—remained Indian country subject to federal and tribal (not state and local) criminal jurisdiction. See

Ute Indian Tribe v. Utah (Ute III ), 773 F.2d 1087, 1088–89, 1093 (10th Cir. 1985) (en banc), cert. denied , 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). After the Supreme Court denied certiorari, that might have seemed the end of it. After all, Ute III

“disposed of all boundary questions at issue on the merits” and “left nothing for the district court to address [on remand] beyond the ministerial dictates of the mandate.” Ute Indian Tribe v. Utah (Ute V ), 114 F.3d 1513, 1521 (10th Cir. 1997) (internal quotation marks omitted).

But that was not the end of it. That was not even the beginning of the end of it. Dissatisfied with the result of Ute III

, state and local officials went shopping for a “friendlier forum” in which to “relitigate the boundary dispute.” United States' Mem. in Support of Ute Indian Tribe's Mot. for Injunctive Relief 3, Supp. App. 8 (Nov. 23, 1992). And no doubt correctly sensing it would represent their best chance for victory, they chose “[a]s a vehicle for their effort” state court prosecutions of tribal members whose unlawful conduct occurred on former reservation lands that had passed to nontribal settlers between 1905 and 1945. Ute Indian Tribe v. Utah (Ute VI ), 790 F.3d 1000, 1003 (10th Cir. 2015) ; see also

State v. Perank , 858 P.2d 927, 934 (Utah 1992). Never mind that Ute III held that these very lands qualified as Indian country, where Utah and its subdivisions lacked criminal law enforcement authority over tribal members. 773 F.2d at 1088–89, 1093. Never mind, too, the normal operation of issue or claim preclusion principles. State officials argued to Utah state courts that their prosecutions could proceed because the 1905 legislation carved out from Indian country at least those lands that had passed to nontribal members between that year and 1945. See

Perank , 858 P.2d at 934. Ultimately, the Utah Supreme Court agreed with this much. See

id. at 953 ; State v. Hagen , 858 P.2d 925, 925–26 (Utah 1992). And so did the U.S. Supreme Court in Hagen v. Utah , 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994). See

id. at 421–22, 114 S.Ct. 958.

That twist of events required this court to reconsider Ute III

's mandate in light of Hagen. On the one hand, “[u]psetting a final decision by recalling and modifying a mandate is and ought to be a rare and disfavored thing in a legal system that values finality.” Ute VI , 790 F.3d at 1004. On the other hand, if left untouched, Ute III's mandate invited a pretty unsavory result: the possibility that the Supreme Court's decision in Hagen would be left to “control only cases arising from Utah state courts and not federal district courts.” Id. To avoid that outcome, this court took the extraordinary step of recalling and modifying Ute III's mandate a decade after its issuance “to reconcile [the] two inconsistent boundary determinations and to provide a uniform allocation of jurisdiction among [the] separate sovereigns.” Ute V , 114 F.3d at 1523.

This was no easy task. After carefully reviewing the possibilities, Judge Tacha, writing for the court in a decision the parties call Ute V,

held that a full and proper respect for Hagen meant that this court now had to recognize that “lands that passed from [tribal] trust to fee status pursuant to non-Indian settlement” between 1905 and 1945 do not qualify as Indian country. Id. at 1529 ; see also

id. at 1530. At the same time, Judge Tacha declined to read Hagen as affecting Ute III...