Ute Indian Tribe v. State of Utah, Civ. No. C 75-408.

• Decision Date: 19 June 1981
• Docket Number: Civ. No. C 75-408.
• Parties: The UTE INDIAN TRIBE, Plaintiff, v. The STATE OF UTAH, defendant in intervention, 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, United States of America, Amicus Curiae, Paradox Production Corporation, a Utah corporation, Amicus Curiae.
• Court: U.S. District Court — District of Utah

521 F. Supp. 1072

The UTE INDIAN TRIBE, Plaintiff, v. The STATE OF UTAH, defendant in intervention, 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 United States of America, Amicus Curiae Paradox Production Corporation, a Utah corporation, Amicus Curiae.

Civ. No. C 75-408.

United States District Court, D. Utah, C. D.

June 19, 1981.

COPYRIGHT MATERIAL OMITTED

Stephen G. Boyden, Boyden, Kennedy & Romney, Salt Lake City, Utah, Martin E. Seneca, Jr., Washington, D. C., Larry J. Echohawk, Richard Hill, Scott Pugsley, Salt Lake City, Utah, Daniel H. Israel, Native American Rights Fund, Boulder, Colo., for plaintiff Ute Indian Tribe.

Dallin W. Jensen, Michael M. Quealy, Denise Dragoo, Asst. Attys. Gen., State of Utah, Salt Lake City, Utah, for defendant State of Utah.

David L. Wilkinson, Atty. Gen., Richard Dewsnup, Asst. Atty. Gen., State of Utah, Clifford L. Ashton, Van Cott, Bagley, Cornwall & McCarthy, Sp. Asst. Attys. Gen., Salt Lake City, Utah, for defendants.

Tom G. Tobin, Tobin Law Offices, P. C., Winner, S. D., David Albert Mustone, Washington, D. C., for Duchesne & Uintah Co.

Whitney Hammond, Uintah County Atty., Vernal, Utah, for Uintah County.

Lynn Mitton, Roosevelt City Atty., Roosevelt, Utah, for Roosevelt City.

Francis M. Wikstrom, U. S. Atty., District of Utah, Salt Lake City, Utah, Anita Vogt, Dept. of Interior, Kenneth Marra, Land and Natural Resources Division, U. S. Dept. of Justice, Washington, D. C., for U. S. as amicus curiae.

Stewart M. Hanson, Jr., Salt Lake City, Utah, for Paradox Production Corp.

Lance Wilkerson, Duchesne, Utah, Dennis Draney, Roosevelt, Utah, for Duchesne Co.

JENKINS, District Judge.

The Ute Indian Tribe filed a complaint with this Court on October 15, 1975, seeking declaratory and injunctive relief establishing the exterior boundaries of the Uintah and Ouray Reservation, defining the force and effect of the Tribe's Law and Order Code within those boundaries, and restraining the defendants from interfering with the enforcement of that Code.¹ The Tribe, a federally recognized, sovereign Indian tribe,² operates under a constitution and by-laws adopted in 1936 and approved by the Secretary of the Interior in 1937.³ Article I of the tribal constitution defines the territory claimed by the Tribe for jurisdictional purposes:

The jurisdiction of the Ute Indian Tribe of the Uintah and Ouray Reservation shall extend to the territory within the original confines of the Uintah and Ouray Reservation as set forth by Executive Orders of October 3, 1861 and January 5, 1882, and by the Acts of Congress approved May 27, 1902, and June 19, 1902, and to such other lands without such boundaries as may hereafter be added thereto under any law of the United States, except as otherwise provided by law. Emphasis added.

Among the powers vested in the Tribal Business Committee, the Tribe's elected governing body, are the following:

Article VI — Powers of the Tribal Business Committee

Section 1. Enumerated powers. — The Tribal Business Committee of the Uintah and Ouray Reservation shall exercise the following powers, subject to any limitations imposed by the statutes or the Constitution of the United States, and subject further to all express restrictions upon such powers contained in this Constitution and By-laws, and subject to review by the Ute Bands themselves at any annual or special meeting:

* * * * * *

(h) To levy taxes upon members of the Ute Indian Tribe of the Uintah and Ouray Reservation, and to require the performance of community labor in lieu thereof, and to levy taxes and license fees, subject to review by the Secretary of the Interior, upon non-members doing business within the Reservation.

(i) To exclude from the territory of the Uintah and Ouray Reservation persons not legally entitled to reside therein, under ordinances which shall be subject to review by the Secretary of the Interior.

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(j) To enact resolutions or ordinances, not inconsistent with Article II of this Constitution governing adoption and abandonment of members, and to keep at all times a correct roll of the members of the Ute Indian Tribe of the Uintah and Ouray Reservation.

(k) To promulgate and enforce ordinances, which shall be subject to review by the Secretary of the Interior, governing the conduct of members of the Ute Indian Tribe of the Uintah and Ouray Reservation, and providing for the maintenance of law and order and the administration of justice by establishing a Reservation Indian Court and defining its duties and powers.

(l) To safeguard and promote the peace, safety, morals and general welfare of the Ute Indian Tribe of the Uintah and Ouray Reservation by regulating the conduct of trade and the use and disposition of property upon the Reservation, provided that any ordinance directly affecting nonmembers of the Reservation shall be subject to review by the Secretary of the Interior.

(m) To charter subordinate organizations for economic purposes, and to regulate the activities of co-operative associations of members of the Ute Indian Tribe of the Uintah and Ouray Reservation by ordinance, provided that any such ordinance shall be subject to review by the Secretary of the Interior.

(n) To regulate the inheritance of property, real and personal, other than allotted lands, within the territory of the Uintah and Ouray Reservation, subject to review by the Secretary of the Interior.

(o) To regulate the domestic relations of members of the Ute Indian Tribe of the Uintah and Ouray Reservation by ordinances which shall be subject to review by the Secretary of the Interior.

(p) To provide for the appointment of guardians for minors and mental incompetents by ordinances or resolutions which shall be subject to review by the Secretary of the Interior.

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For many years, it seemed to the Ute's non-Indian neighbors that these powers, as well as others, lay dormant as far as non-Indian affairs were concerned. To many, the concept of Indian tribal government seemed wholly irrelevant to their businesses and daily lives. Over those same years, however, the Ute Indian Tribe did not remain passive. The Utes, with the support and encouragement of their trustee, the United States government, have made continuous efforts to improve the sophistication and effectiveness of their tribal institutions in response to changing times and circumstances.⁴ Naturally, as the Utes have gained the economic wherewithal to do so, they have sought a greater share of autonomy and control over their own lives and community affairs. It was inevitable that this quest for tribal autonomy would find expression in the promulgation of tribal law.⁵

The Tribe operated a tribal government and an Indian court for many years prior to 1975.^5A As tribal operations expanded and the demand on tribal institutions increased, the Tribe sought to recodify and expand its growing body of ordinances, resulting in the enactment and publication of the Law and Order Code of the Ute Indian Tribe (hereinafter "Ute Law and Order Code") which was approved by the Secretary of the Interior through the Phoenix Area Director of the Bureau of Indian Affairs, Trial Transcript at 55 (Testimony of Wm. F. Streitz), and became effective on September 15, 1975.⁶

Promulgation of the Ute Law and Order Code raised immediate protest from the defendant municipalities, Duchesne and Roosevelt, and defendant Duchesne County, all of which are within the original boundaries of the Uintah Indian Reservation.⁷ The defendants complained that they were wrongfully included within the territorial jurisdiction of the Ute Tribe under the Ute Law and Order Code⁸ and officials of the defendants urged their constituents to resist the enforcement of the new code. The State of Utah complained that its authority was likewise impaired.⁹

The Tribe, faced with mounting opposition to the exercise of its jurisdiction, commenced the above-entitled action in this Court against the named governmental defendants. The State of Utah intervened as a defendant and the United States of America and Paradox Production Corporation have subsequently entered these proceedings as amici curiae. By stipulation of the parties in the Pretrial Order, Uintah County, another political subdivision of the State of Utah, was joined as a defendant.¹⁰

I. CLAIMS OF THE PARTIES

To paraphrase the Pretrial Order, the plaintiff Ute Indian Tribe asserts that the Uintah and Ouray Indian Reservation was created by the Executive Order of October 3, 1861,¹¹ as confirmed by the Act of May 5, 1864, 13 Stat. 63, by the Executive Order of January 5, 1882,¹² and by the Act of March 11, 1948, 62 Stat. 72, and that the original exterior boundaries as thus established continue to exist undiminished for purposes of defining the present boundary of the Uintah and Ouray Reservation. Plaintiff further asserts that all of the lands encompassed by that boundary are "Indian country" as defined by federal statute¹³ and that the defendants may not exercise jurisdiction over members of the plaintiff Tribe for any criminal offense committed therein as that jurisdiction is reserved to the United States, or to the Tribe itself,¹⁴ and that the Tribe may exercise the full panoply of its governing powers within those same boundaries free from interference by the defendants.¹⁵

In defense, all defendants assert that "Indian country" in the Uintah basin is confined to lands held in trust for individual Indians or for the Ute Indian Tribe, and beyond that, the area defined by the Act of March 11, 1948, 62 Stat. 72, more commonly known as the Hill Creek Extension. The State of Utah asserts alternatively that the original Uintah Valley Indian Reservation described in the Executive Order of October 3, 1861, is diminished by national forest and reclamation...