UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, Plaintiff-Appellant
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.
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,
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.
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.
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.
GORSUCH, PHILLIPS, and MORITZ, Circuit Judges.
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.
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.
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).
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).
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
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