Hackford v. Babbitt
| Citation | 14 F.3d 1457 |
| Decision Date | 21 January 1994 |
| Docket Number | No. 92-4098,92-4098 |
| Parties | Calvin C. HACKFORD, Plaintiff-Appellant. v. Bruce BABBITT, Secretary of the United States Department of the Interior; Perry Baker, Superintendent of Uintah and Ouray Indian Reservation; William Christensen, Lake Fork and Uintah River Commissioner; Bart Bennion, Project Engineer, Uintah Irrigation Project, U.S. Department of the Interior, Defendants-Appellees, Ute Indian Tribe of the Uintah and Ouray Reservation, Amicus Curiae. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Kathryn Collard (Steve Russell, with her on the briefs) of Collard & Russell, Salt Lake City, UT, for plaintiff-appellant.
Samuel C. Alexander (Myles E. Flint, Acting Asst. Atty. Gen., Edward J. Shawaker
and Samuel C. Alexander, Dept. of Justice, Washington, DC; Carlie Christensen, U.S. Attorney's Office, Salt Lake City, UT, with him on the briefs), for defendants-appellees.
Robert S. Thompson, III and Tod J. Smith of Whiteing & Thompson, Boulder, CO; and John R. Lehmer of D'Elia & Lehmer, Park City, UT, for amicus curiae.
Before BALDOCK, BARRETT and EBEL, Circuit Judges.
Calvin C. Hackford appeals from the district court's dismissal of his suit based upon his lack of standing under the Fifth Amendment of the United States Constitution and under the Ute Partition and Termination Act (Partition Act), 25 U.S.C. Secs. 677-677aa.
Hackford owns seven parcels of land within the Uintah and Ouray Indian Reservation in Utah. Some of these lands are irrigable and fall within an area serviced by the Uintah Irrigation Project (Project). The Project is managed by the United States Department of the Interior to deliver irrigation water to allotted lands on the reservation. On June 16, 1989, the Acting Superintendent of the Uintah and Ouray Agency directed the River Commissioner of the Lake Fork and Uintah Rivers to lock Hackford's headgates and dam his private ditch to prevent Hackford from obtaining water for irrigation until he paid the assessments in arrears for the operation and maintenance of the Project.
Following the Superintendent's action, Hackford filed suit seeking both declaratory and injunctive relief against the Secretary of the Interior (Secretary) and the other defendants in both their official and individual capacities claiming that the defendants had unlawfully (1) deprived Hackford of his interest in the operation and management of the Project in violation of the Ute Partition and Termination Act, and (2) deprived and interfered with his right to use waters reserved to the Uintah Band of Indians, of which Hackford is a member, for the irrigation of his Reservation lands in violation of the Ute Partition and Termination Act and the Fifth Amendment.
The district court dismissed the complaint on the basis that Hackford lacked standing. The district court found that although Hackford's claimed rights were based on his status as a mixed-blood member of the Ute Tribe, he had failed to either show that he represented those third-parties or that he had an individual ownership interest in the Project. This appeal followed.
Under the then accepted policy of separating Indian tribes from white settlers, the Uintah Valley Reservation was created in 1861 by President Abraham Lincoln. Executive Order of October 3, 1861 reprinted in Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1157 app. A (D.Utah 1981), aff'd in part, rev'd in part, 773 F.2d 1087 (10th Cir.1985), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). The Uncompahgre Reservation was created by President Chester A. Arthur in 1882. Executive Order of January 5, 1882 reprinted in Ute Indian Tribe, 521 F.Supp. at 1164 app. A. From portions of these original reservations, the current Uintah and Ouray Reservation was formed. (Brief for Appellees at 4.)
Toward the end of the nineteenth century, due to increasing western settlement by whites, federal Indian policy underwent a shift toward assimilating the Indian tribes into the mainstream culture. See Ute Indian Tribe, 521 F.Supp. at 1151. Responding to this shift in policy, Congress passed the Indian General Allotment Act of Feb. 8, 1887, ch. 119, 24 Stat. 388 (). Ute Indian Tribe, 521 F.Supp. at 1151. The Indian General Allotment Act allowed the breakup of Indian reservations into individual homesteads on which, Congress expected, the Indians would farm and become self-sufficient. The "ultimate purpose of the [Indian General Allotment Act was] to abrogate the Indian tribal organization, to abolish the reservation system and to place the Indians on an equal footing with other citizens of the country." Id. The General Allotment Act, 25 U.S.C. Sec. 381, further provided:
In cases where the use of water for irrigation is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior is authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the Indians residing upon any such reservations; and no other appropriation or grant of water by any riparian proprietor shall be authorized or permitted to the damage of any other riparian proprietor.
Following the opening of the reservation in 1905 and the distribution of allotments to the Indian bands, the Commissioner of Indian Affairs, in his annual report for 1905, described the conditions on the reservation:
The future of these Indians depends upon a successful irrigation scheme, for without water their lands are valueless, and starvation or extermination will be their fate. The circumstances are such that delay or hesitation will be fatal because all rights to waters in Utah are based on the priority of use. It is believed that an appropriation of not less than $500,000 for irrigation for the Utes should be asked for at the next session of Congress....
Rept. of the Comm. of Ind. Aff., 1906, quoted in Ute Indian Tribe, 521 F.Supp. at 1126.
It was within this context that Congress authorized the construction of the Project with the Indian Department Appropriation Act of June 21, 1906, ch. 3504, 34 Stat. 325. The 1906 Act appropriated money for the "... purpose of paying the current and contingent expenses of the Indian Department, [and] for fulfilling treaty stipulations with various Indian tribes...." Id. at 325.
The section titled "Irrigation" provided:
For constructing irrigation systems to irrigate the allotted lands of the Uncompahgre, Uintah, and White River Utes in Utah, the limit of cost of which is hereby fixed at six hundred thousand dollars, one hundred and twenty-five thousand dollars which shall be immediately available, the cost of said entire work to be reimbursed from the proceeds of the sale of the lands within the former Uintah Reservation:
Provided, That such irrigation systems shall be constructed and completed and held and operated, and water therefor appropriated under the laws of the State of Utah, and the title thereto until otherwise provided by law shall be in the Secretary of the Interior in trust for the Indians, and he may sue and be sued in matters relating thereto:
And provided further, That the ditches and canals of such irrigation systems may be used, extended, or enlarged for the purpose of conveying water by any person, association, or corporation under and upon compliance with the provisions of the laws of the State of Utah:
And provided further, That when said irrigation systems are in successful operation the cost of operating same shall be equitably apportioned upon the lands irrigated, and, when the Indians have become self-supporting, to the annual charge shall be added an amount sufficient to pay back into the Treasury the cost of the work done, in their behalf, within thirty years, suitable deduction being made for the amounts received from disposal of the lands within the former Uintah Reservation. Id. at 375-76. 1
As the Project facilities were built and irrigation water became available, non-Indians began to buy and lease allotted lands. 2 Ute Indian Tribe, 521 F.Supp. at 1126 n. 165. Lands surrounding the reservation were also developed which created conflicts concerning the availability of water to non-Project lands. Indian lands became short of water with strict rationing the result. O'Neil & MacKay, A History of the Uintah-Ouray Ute Lands, American West Center Occasional Papers 34 (U.Utah 1977). In 1923, the United States filed two actions to enjoin various irrigation companies from interfering with the Indians prior use of waters of the Lake Fork, Whiterocks, and Uintah Rivers which flowed through the Project area. United States v. Dry Gulch Irrigation Co., No. 4418, slip op. (D.Utah 1923); United States v. Cedarview Irrigation Co., No. 4427, slip op. (D.Utah 1923); (Brief for Appellees at 7-8). The courts accorded the Indians' water use a priority date that "antedates the third day of October, 1861," the date of creation of the Uintah Valley Reservation. 3 Dry Gulch, No. 4418, slip op. at 2; Cedarview, No. 4427, slip op. at 3.
In 1934, Congress, now moving away from a policy of assimilating tribes, enacted the Indian Reorganization Act (IRA), ch. 576, 48 Stat. 984 (). The IRA halted the allotment of tribal land and recognized the right of tribes to draw up constitutions and corporate charters for self-governance. (Brief for Appellees at 8-9.) Pursuant to the IRA, the Uintah, White River, and Uncompahgre bands formed the Ute Indian Tribe of the Uintah and Ouray Reservation in 1937. Constitution and By-laws of the Ute Indian Tribe of the Uintah and Ouray Reservation (Constitution) (Appellant's App., tab 5 ex 3.). The Constitution did not address the Project.
Thereafter, in June 1950, representatives of the members of the Uncompahgre, White River, and...
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