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UTE Indian Tribe of Uintah and Ouray Reservation v. Myton

United States Court of Appeals, Tenth Circuit

August 29, 2016

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.

         Appeal from the United States District Court for the District of Utah (D.C. Nos. 2:75-CV-00408-BSJ and 2:13-CV-00276-BSJ)

          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 (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 ...


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