935 F.Supp. 1473 (D.Utah 1996), 75-C-408, Ute Indian Tribe v. State of Utah

Docket Nº75-C-408J.
Citation935 F.Supp. 1473
Party NameUTE INDIAN TRIBE, Plaintiff, v. STATE OF UTAH, Defendant-in-Intervention,and Duchesne County, a political subdivision of the State of Utah; Uintah County, a political subdivision of the State of Utah; Roosevelt City, a municipal corporation; and Duchesne City, a municipal corporation, Defendants.
Case DateApril 02, 1996
CourtUnited States District Courts, 10th Circuit, District of Utah

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935 F.Supp. 1473 (D.Utah 1996)

UTE INDIAN TRIBE, Plaintiff,

v.

STATE OF UTAH, Defendant-in-Intervention,and

Duchesne County, a political subdivision of the State of Utah; Uintah County, a political subdivision of the State of Utah; Roosevelt City, a municipal corporation; and Duchesne City, a municipal corporation, Defendants.

No. 75-C-408J.

United States District Court, D. Utah, Central Division.

April 2, 1996

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Robert S. Thompson, III, Office of Legal Counsel, Ute Indian Tribe, Fort Duchesne, Utah, for Plaintiff, the Ute Indian Tribe.

John W. Andrews and Michael M. Quealy, Utah Attorney Generals Office, Salt Lake City, Utah, for Defendant-in-Intervention, the State of Utah.

Herbert Wm. Gillespie, Duchesne County Attorney, Roosevelt, Utah, for Defendant, Duchesne County.

Joann B. Stringham, Uintah County Attorney, Vernal, Utah, for Defendant, Uintah County.

Tom Tobin, Winner, SD, for Defendants, Duchesne and Uintah Counties.

Roland Uresk, Roosevelt, Utah, for Defendant Duchesne City.

Clark Allred, McKeachnie & Allred, Vernal, Utah, for Defendant Roosevelt City.

Lauren N. Soll, U.S. Department of Justice, Land and Resource Division, Washington, DC, for U.S. Department of Justice.

Joseph Anderson, Assistant U.S. Attorney, Midvale, Utah, United States of America as amicus curiae.

William McConkie, Office of Solicitor, U.S. Dept. of the Interior, Salt Lake City, Utah, for U.S. Department of the Interior.

MEMORANDUM OPINION AND ORDER

JENKINS, Senior District Judge.

On September 12, 1994, the above-captioned matter came on before this Court for a hearing on the merits. Robert S. Thompson, III, Esq., appeared on behalf of the plaintiff, the Ute Indian Tribe. John W. Andrews, Esq., and Michael M. Quealy, Esq., appeared on behalf of the State of Utah. Herbert Wm. Gillespie, Esq., Duchesne County Attorney, and Joann B. Stringham, Esq., Uintah County Attorney, accompanied by Tom Tobin, Esq., appeared on behalf of defendants Duchesne and Uintah Counties. Roland Uresk, Esq., appeared on behalf of defendant Duchesne City. Clark Allred, Esq., appeared on behalf of defendant Roosevelt City. Lauren N. Soll, Esq., United States Department of Justice, and Joseph Anderson, Esq., Assistant United States Attorney, appeared on behalf of the United States of America as amicus curiae, accompanied by William McConkie, Esq., United States Department of the Interior.

The pending motions revisit a subject explored in depth in this same litigation some time ago: the territorial extent of the Ute Indian Tribe's jurisdiction, at least as it may be delimited by the legal boundaries of the Uintah and Ouray Indian Reservation. That question was resolved among these parties by Ute Indian Tribe v. State of 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), resulting in a judgment that the Ute Indian Tribe now seeks to enforce in this court through entry of a permanent injunction. The State of Utah, defendants Duchesne and Uintah Counties, Duchesne City and defendant Roosevelt City (collectively, the "State and Local Defendants"), resist this, urging this court instead to disregard the Tenth Circuit's en banc ruling on appeal in this litigation in favor of redetermining the Ute reservation boundaries in light of the United States Supreme Court's more recent decision in Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994). These defendants have also moved to dissolve the Order, entered by this court pursuant to stipulation of the parties on September 2, 1992, (nunc pro tunc to August 3, 1992), which was designed to preserve (more or less) the jurisdictional status quo pending the determination of the Ute Indian Tribe's Renewed Motion for Injunctive Relief. 1

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Background and Procedural History

As the Ute Indian Tribe explains in its brief, the promulgation in 1975 of the Ute Law and Order Code "raised immediate protests from the State of Utah and from the political subdivisions located within the original boundaries" of the Ute Reservation. Brief of Plaintiff Ute Indian Tribe in Opposition to Defendants' Motion to Dissolve Preliminary Injunction, filed July 15, 1994, at 2-3. "In the hope of establishing, once and for all, the exterior boundaries of the Reservation, and the geographic scope of the Tribe's jurisdiction, the Tribe filed [this] action for declaratory relief in this Court in 1975," joining Duchesne County, Duchesne City and Roosevelt City as defendants. Id. at 3. The State of Utah intervened as a defendant and Uintah County was joined as a defendant by stipulation of the parties in the Pretrial Order. After conducting a trial on the merits and examining the pertinent legislation and historical materials in some detail, this court made an initial ruling defining the boundaries of the Uintah Valley Reservation and holding that the Uncompahgre Reservation had been disestablished. See Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072 (D.Utah 1981). That determination was affirmed in part and reversed in part by a three-judge panel of the Tenth Circuit (716 F.2d 1298 (10th Cir. 1983)); the panel's decision in turn was affirmed in part and reversed in part on rehearing en banc (773 F.2d 1087 (10th Cir. 1985)). The United States Supreme Court denied certiorari (479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986)), and the Tenth Circuit issued its mandate pursuant to the en banc ruling, which was docketed by the Clerk of this court on December 9, 1986. Notice of receipt of the mandate was mailed to all counsel of record.

In its en banc ruling, the Tenth Circuit held that the Uintah Valley Reservation, created by Executive Order in 1861 2 and confirmed by Act of Congress in 1864, 3 had not been diminished by congressional legislation enacted from 1902 through 1905 opening unallotted and unreserved lands on the Reservation to entry under the homestead and townsite laws, 4 or by the inclusion of portions of the Reservation among lands withdrawn as national forest lands by Act of Congress and Presidential Proclamation in 1905. 5 773 F.2d at 1088-1090; see also id. at 1099-1100 (Seymour, Holloway, McKay & Logan, JJ., concurring). The Tenth Circuit likewise held that the Uncompahgre Reservation had not been diminished by allotment legislation enacted in 1894 and 1897, which restored its unallotted lands "to the public domain" and opened them " 'for location and entry under all the land laws of the United States; ....' " 773 F.2d at 1090-93 (quoting the Act of June 7, 1897, ch. 3, 30 Stat. 62, 87); see also id. at 1093-1099 (Seymour, Holloway, McKay & Logan, JJ., concurring).

The Tenth Circuit's en banc ruling closely followed the Supreme Court's decision in Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984), decided 18 months earlier. Writing for a unanimous Court in Solem, Justice Thurgood Marshall concluded that the 1908 Act, 6 which authorized and directed the Secretary of the Interior "to sell and dispose of all that portion of the Cheyenne River and Standing Rock Indian reservations ... lying and being within the following described boundaries, ..." when "read as a whole, does not present an explicit expression of congressional intent to diminish the

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Cheyenne River Sioux Reservation." 465 U.S. at 476, 104 S.Ct. at 1169. Further, Solem held that "[n]either the Act of May 29, 1908, the circumstances surrounding its passage, nor subsequent events clearly established that the Act diminished the Cheyenne River Sioux Reservation." 465 U.S. at 481, 104 S.Ct. at 1171. References in some sections of the 1908 Act to "the respective reservations thus diminished," 7 or to timber harvesting on the opened lands "only as long as the lands remain part of the public domain," 8 and even a few references in legislative materials to a "reduced reservation" or to "lands reserved for the use of the Indians on both reservations as diminished," did not add up to a clear expression of congressional intent to diminish either reservation. Id. at 474-78, 104 S.Ct. at 1168-70. Importantly, the contemporary and subsequent legislative history of the opening of the Cheyenne River Reservation reflected ambiguities similar to those appearing in the record in Ute Indian Tribe: "examples pointing in both directions leave one with the distinct impression that subsequent Congresses had no clear view whether the opened territories were or were not still part of the Cheyenne River Reservation." Id. at 479, 104 S.Ct. at 1170.

Relying explicitly on Solem, the Tenth Circuit in Ute Indian Tribe reasoned:

The 1902 Act would have returned all surplus Uintah Reservation lands to the public domain if the Ute Tribe's consent could be obtained. That consent was never forthcoming. The Tribe refused all requests to give up their lands. As a result of the impasse, Congress passed additional legislation in 1903 and 1904 extending the time set for opening of the Reservation.... Finally, Congress passed the 1905 Act, opening the Reservation for non-Indian settlement under the homestead and townsite laws. This measure, which actually effected the opening of the Reservation, did not contain the public domain language used in the 1902 Act.

It is not possible to find that the series of congressional enactments summarized above revealed a "baseline purpose of disestablishment," ... that carried through into the 1905 Act. To do so is inconsistent with the Supreme Court's longstanding directive, reiterated in Solem, that in the absence of "substantial and compelling evidence of a congressional intention to diminish Indian lands," the courts' "traditional solicitude for the Indian...

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