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.
Description: 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.
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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
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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
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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
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 for the district court to address [on remand] beyond the ministerial
dictates of the mandate.” Ute Indian Tribe v. Utah (Ute V), 114 F.3d 1513, 1521
(10th Cir. 1997) (internal quotation marks omitted).
But that was not the end of it. That was not even the beginning of the end
of it. Dissatisfied with the result of Ute III, state and local officials went
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shopping for a “friendlier forum” in which to “relitigate the boundary dispute.”
United States’ Mem. in Support of Ute Indian Tribe’s Mot. for Injunctive Relief
3, Supp. App. 8 (Nov. 23, 1992). And no doubt correctly sensing it would
represent their best chance for victory, they chose “[a]s a vehicle for their effort”
state court prosecutions of tribal members whose unlawful conduct occurred on
former reservation lands that had passed to nontribal settlers between 1905 and
1945. Ute Indian Tribe v. Utah (Ute VI), 790 F.3d 1000, 1003 (10th Cir. 2015);
see also State v. Perank, 858 P.2d 927, 934 (Utah 1992). Never mind that Ute III
held that these very lands qualified as Indian country, where Utah and its
subdivisions lacked criminal law enforcement authority over tribal members. 773
F.2d at 1088-89, 1093. Never mind, too, the normal operation of issue or claim
preclusion principles. State officials argued to Utah state courts that their
prosecutions could proceed because the 1905 legislation carved out from Indian
country at least those lands that had passed to nontribal members between that
year and 1945. See Perank, 858 P.2d at 934. Ultimately, the Utah Supreme Court
agreed with this much. See id. at 953; State v. Hagen, 858 P.2d 925, 925-26
(Utah 1992). And so did the U.S. Supreme Court in Hagen v. Utah, 510 U.S. 399
(1994). See id. at 421-22.
That twist of events required this court to reconsider Ute III’s mandate in
light of Hagen. On the one hand, “[u]psetting a final decision by recalling and
modifying a mandate is and ought to be a rare and disfavored thing in a legal
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system that values finality.” Ute VI, 790 F.3d at 1004. On the other hand, if left
untouched, Ute III’s mandate invited a pretty unsavory result: the possibility that
the Supreme Court’s decision in Hagen would be left to “control only cases
arising from Utah state courts and not federal district courts.” Id. To avoid that
outcome, this court took the extraordinary step of recalling and modifying Ute
III’s mandate a decade after its issuance “to reconcile [the] two inconsistent
boundary determinations and to provide a uniform allocation of jurisdiction
among [the] separate sovereigns.” Ute V, 114 F.3d at 1523.
This was no easy task. After carefully reviewing the possibilities, Judge
Tacha, writing for the court in a decision the parties call Ute V, held that a full
and proper respect for Hagen meant that this court now had to recognize that
“lands that passed from [tribal] trust to fee status pursuant to non-Indian
settlement” between 1905 and 1945 do not qualify as Indian country. Id. at
1529; see also id. at 1530. At the same time, Judge Tacha declined to read Hagen
as affecting Ute III’s mandate in any other respect. So, for example, she
explained that lands that could’ve been but were not allotted to nontribal members
between 1905 and 1945, and that were instead restored to tribal status in 1945,
remained Indian country. Id. at 1528-31; see also Ute VI, 790 F.3d at 1004. With
that much decided, Ute V (once again) resolved all outstanding boundary issues,
leaving to the district court nothing but the ministerial task of entering a
permanent injunction memorializing its terms. See Ute V, 114 F.3d at 1530-31.
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Once more, too, the Supreme Court denied certiorari. 522 U.S. 1107 (1998). And
with that, you could be forgiven for thinking that surely, now, the saga was about
to draw to a close as the century neared its end.
Not even close. After this court issued Ute V and its light, the parties
entered into a series of agreements under the district court’s superintendence that
seemed to keep the peace — even for some years after major portions of them
expired in 2008. But then, much as they did in the build-up to Hagen, Utah and
several of its counties began what appeared to the Tribe to be a campaign to
undermine this court’s boundary determinations by prosecuting tribal members
for crimes committed “on the very lands Ute V said remain Indian country even
after Hagen.” Ute VI, 790 F.3d at 1004. Unsurprisingly, the Tribe responded to
this effort by filing suit once more in 2013 and by requesting a permanent
injunction to enforce the terms of Ute III and V. As a first step toward that end,
the Tribe sought a preliminary injunction halting the prosecution of one tribal
member for alleged traffic offenses on land that “Ute III and V recognized as
Indian country.” Id. at 1005. Yet in a one-line order that contained no
explanation, the district court denied the request.
So it is that just last year the rock returned for this court to push up the hill
one more time. In Ute VI, we found that the land at issue in the prosecution in
question unquestionably qualified as Indian country under the terms of Ute V and
that Utah and the localities were indeed attempting to “undo the tribal boundaries
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settled by Ute III and V.” Id. Accordingly, this court ordered the district court to
issue the preliminary injunction forthwith. Id. (“[T]he district court should have
issued a preliminary injunction and must do so now . . . .” (emphasis added)).
“[T]he time has come,” we said, for the parties “to respect the peace and repose
promised by settled decisions.” Id. at 1013. Again the Supreme Court denied
review. 136 S. Ct. 1451 (2016).
Yet even that wasn’t the end of it. While Ute VI was before this court, one
of the defendants, the town of Myton, filed a motion to dismiss the Tribe’s suit.
Even though the Tribe’s complaint alleged that Myton lies on original Ute
reservation lands and includes tracts that were opened in 1905 but never settled
and so restored to tribal jurisdiction in 1945. And even though the Tribe’s
complaint alleged that the town and its agents sought to prosecute tribal members
for crimes on those restored tribal lands. Despite all this, Myton sought dismissal
and the district court granted it, certifying its disposition for appeal under Fed. R.
Civ. P. 54(b). And so with that we face the rock and the hill yet again, with the
Tribe and the federal government asking us to give effect to Ute V’s mandate by
overturning the district court’s ruling.
We are of course obliged to do exactly that. The Tribe’s suit against Myton
alleges that local officials seek to exercise criminal jurisdiction over tribal
members on lands that were restored to tribal jurisdiction in 1945. Lands that,
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accordingly, remain Indian country under the express terms of Ute V and so
qualify as lands where tribal members are generally subject only to federal and
tribal criminal authorities.
To be sure, Myton disputes the facts alleged in the complaint. It contends
that not a single bit of land within its boundaries was subject to the 1945
restoration order. But if Myton really wishes to dispute the facts alleged in a
complaint, a motion to dismiss surely isn’t the proper way to go about it. At the
motion to dismiss stage we and the district court must construe all well-pleaded
factual allegations in the light most favorable to the non-movant and ask only if
they state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). And the Tribe’s factual allegation that Myton includes land that qualifies
as Indian country under the terms of Ute V is a good deal more than plausible.
Indeed, it is undisputed that Myton lies on land that was part of the Tribe’s
original reservation. See Aple. Br. at 4 (“Myton City . . . is encompassed by the
historic boundaries of the Uintah Valley Indian Reservation . . . .”). The town’s
own plan and plat acknowledge that even today “approximately 48%” of the
town’s geographic space remains tribal “trust lands.” Myton City General Plan
FY 2006, at 12; see also id. at fig.2. And when in 1947 the town sought to
purchase certain parcels of land within the townsite’s boundaries so that it might
build an airport, the U.S. Department of the Interior refused the sale, citing its
judgment that the tracts in question had been “irrevocab[ly]” restored to tribal
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jurisdiction in 1945. App. vol. XIV at 2087-88. So it seems Myton’s response to
this appeal is really no response at all.
Of course, that’s not Myton’s only reply. The town also argues that the
Supreme Court’s decision in Hagen requires the dismissal of this suit. In
particular, it points to a sentence in which the Court stated that “the town of
Myton, where petitioner committed a crime, is not in Indian country.” 510 U.S.
at 421. But though perhaps appealing on first encounter, on closer inspection this
argument proves no more persuasive than the last.
After all and as we’ve seen, any dispute over the meaning and effect of
Hagen was itself finally decided by this court a very long time ago. As Ute V
recognized, Hagen addressed the question whether state officials had the power
under federal law to prosecute a particular crime by a particular defendant — a
question whose answer turned on whether the particular parcel of land where the
crime occurred (Mr. Hagen’s home in Myton) was or was not Indian country. See
Ute V, 114 F.3d at 1518-19; see also 18 U.S.C. § 1151; United States v. Arrieta,
436 F.3d 1246, 1247 (10th Cir. 2006); United States v. Martine, 442 F.2d 1022,
1023 (10th Cir. 1971). The Supreme Court held that particular parcel was not
Indian country, so state officials could lawfully prosecute Mr. Hagen. See Hagen,
510 U.S. at 421-22. Of course, Hagen’s reasoning or ratio decidendi extended
further, for the Court made plain that its holding rested on the judgment that all
parcels of land transferred to nontribal members between 1905 and 1945 are not
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Indian country — and that Mr. Hagen’s home sat on such a parcel. See id. at 414.
And in Ute V, this court sought to give full effect not just to Hagen’s holding but
to its reasoning too, revising Ute III’s mandate to reflect that all former
reservation lands transferred to nontribal members between 1905 and 1945 no
longer qualified as Indian country. See Ute V, 114 F.3d at 1528, 1530. But, as
interpreted by Ute V, Hagen didn’t hold that each and every tract of land inside
Myton is outside Indian country and didn’t purport to supply reasoning that might
support such a rule. See id. at 1530. Myton might disagree with Ute V’s
assessment on this score and believe “that Ute V drew the wrong boundaries.”
Ute VI, 790 F.3d at 1012. But Judge Tacha’s careful interpretation of Hagen in
Ute V dates back nearly twenty years, the Supreme Court has twice declined to
disturb its judgment, and we are not free to tinker with that controlling precedent
now. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993); Tokoph v. United States,
774 F.3d 1300, 1303-04 (10th Cir. 2014). Neither, for that matter, does Myton
dispute that it is in privity with the parties to Ute V or identify any other reason
that might prevent that decision from binding it not just as a matter of precedent
but as a matter of issue preclusion too.
Though it’s long since water over the dam, both as a matter of precedent
and preclusion, we might add our view that Ute V’s interpretation of Hagen’s rule
and reasoning was entirely correct. Every bit of evidence suggests that the
Supreme Court meant to remove from Ute III’s determination about the scope of
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Indian country those lands (and only those lands) allotted to nontribal members
between 1905 and 1945. Indeed, the Utah Supreme Court decisions under review
in Hagen didn’t purport to hold differently. As Hagen’s companion case, Perank,
made clear, the “only issue” the Utah Supreme Court sought to resolve was
“whether the unallotted and unreserved lands that were opened to entry in 1905
and not later restored to tribal ownership and jurisdiction [in] 1945” qualified as
Indian country. 858 P.2d at 934 (emphasis added). Neither did the State of Utah
seek a different rule before the U.S. Supreme Court. In its briefing, Utah
expressly acknowledged that “[t]here is no dispute that . . . the surplus lands
restored to tribal ownership and reservation status in 1945 . . . are also Indian
country.” Br. for the Resp’t, Hagen, 510 U.S. 399 (No. 92-6281), 1993 WL
384805, at *9. An acknowledgment the State repeats even today in the amicus
brief it tenders otherwise in support of Myton. Br. of Utah as Amicus Curiae at 3
(“After explaining the effect of the 1945 and 1948 restorations, the State [in
Hagen] reiterated there was no dispute that the tribal reserves, remaining
allotments and restored lands were all Indian country.”). In this light, it is
evident that the Supreme Court’s mention of the town of Myton in Hagen was no
more than a shorthanded reference to the situs of the crime, a parcel of land inside
the town of Myton that had been allotted to a nontribal member between 1905 and
1945, and thus a parcel of land that failed to qualify as Indian country under the
Court’s reasoning. No one before the Court sought a ruling that all of Myton is
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outside Indian country. That question simply wasn’t presented. And nothing in
the parties’ arguments to the Court or the reasoning of the Court’s opinion would
support such an idiosyncratic rule. So it is Ute V’s interpretation of Hagen is not
only plainly controlling: it seems to us plainly correct.
As a final measure, Myton appeals to equity. It laments the consequences
for the town’s administration that follow from having to contend with some
parcels in town where it cannot exercise criminal jurisdiction over some persons.
But this sort of “checkerboard” jurisdiction — where state and local officials bear
criminal enforcement power on some lands and federal and tribal officials oversee
others — is the natural consequence of Congress’s decision to open and then
close reservation lands to outside settlement. Neither would a victory for Myton
eliminate the checkerboard that already exists in former Ute reservation lands: it
would only alter the shape of the board in one relatively small and peculiar way, a
way that would defy the shape dictated by Ute III and V more than a generation
ago, and we see no equity in that. For that matter, checkerboard jurisdiction is a
fact of daily life throughout the West, the result of many different congressional
commands like those at issue here, and something many localities have lived with
successfully. Myton offers no reason to think it has not done or cannot do the
same. Surely, too, it is not for this court to override Congress’s commands on the
basis of claims of equity from either side. See Hydro Res., Inc. v. EPA, 608 F.3d
1131, 1158 (10th Cir. 2010) (en banc) (“[A]s this court has previously explained,
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Congress has authorized checkerboard jurisdiction under its definition of Indian
country in 18 U.S.C. § 1151.” (internal quotation marks omitted)).
By way of equity Myton finishes with an appeal to the doctrine of laches.
That doctrine may be used as a matter of judicial discretion to vindicate
“justifiable expectations” threatened by the untimely assertion of long dormant
claims. City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 215
(2005) (internal quotation marks omitted). Because the Tribe waited so long to
assert claims against it, Myton submits, the town has long since and fairly come
to expect that it contains no tribal lands qualifying as Indian country.
We don’t see how. For one thing, the lands that reverted to the Tribe in
1945 are owned by the United States and held in trust for the benefit of the Tribe.
Br. of United States as Amicus Curiae at 4. And given this, it is far from clear
whether the doctrine of laches could be used to determine the fate of this
territory, for laches is a line of defense that usually may not be asserted against
the United States. See Guar. Trust Co. v. United States, 304 U.S. 126, 132
(1938). For another thing, we don’t see how the town might have ever justifiably
thought that it contained no lands qualifying as Indian country. As we’ve seen,
the Department of the Interior long ago explained its view that the 1945
restoration order had the effect of returning to the Tribe’s jurisdiction lands
within the town’s limits. As we’ve seen, too, when local governments started to
assert jurisdiction over tribal members on tribal lands about thirty years ago, the
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Tribe brought a suit to challenge their actions — and no one disputes that the
Tribe did so in a timely manner. Since then, the Tribe has consistently defended
its jurisdiction over lands throughout the original Ute reservation territories —
lands that include Myton. Indeed, the Tribe has won two separate judgments (Ute
III and V) holding (first) that all and (then) that some of Myton is inside Indian
country. What’s more, in previous iterations of this dispute, in Hagen itself, and
again in this case, both the State of Utah and Myton’s county (Duchesne) have
accepted that the 1945 order restored tribal jurisdiction over unallotted former
reservation lands like those in Myton. See Perank, 858 P.2d at 949; Ute II, 716
F.2d at 1312-13; Br. for the Resp’t, Hagen, 510 U.S. 399 (No. 92-6281), 1993
WL 384805, at *9; Br. of Utah as Amicus Curiae at 3. On this record, Myton’s
claim to have long and justifiably expected that its town contains no Indian
country simply cannot withstand scrutiny. Cf. City of Sherrill, 544 U.S. at 214,
221 (approving laches on a very different record where the land was sold to
nontribal members and neither the tribe nor the federal government did anything
to assert their rights “[f]rom the early 1800’s into the 1970’s”).
Before we finish rolling the rock up the hill, one more issue remains to
confront. The Tribe has filed a motion seeking the reassignment of this and
related cases to a different district judge on remand. Absent proof of bias,
reassignment is, of course, a step this court takes only in “extreme
circumstances.” Procter & Gamble Co. v. Haugen, 427 F.3d 727, 744 (10th Cir.
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2005) (internal quotation marks omitted). But we think those exist here. The
unavoidable fact is that nearly twenty years ago in Ute V this court explained that,
between Ute III and its own disposition, “all boundary questions at issue” had
been finally resolved. Ute V, 114 F.3d at 1521. Even so, the years since seem to
have brought nothing but relitigation of those boundaries. See, e.g., Ute VI, 790
F.3d at 1005. Utah and its subdivisions bear responsibility for much of this. We
have even had to take the extraordinary step of reminding them, parties who
should (and do) know better, of the possibility of sanctions if they continue to
defy settled judicial mandates. Id. at 1013. But the fact remains that the district
court has failed to give effect to this court’s mandate in Ute V and has given us
little reason to hope that things might change on remand or that this long
lingering dispute will soon find the finality it requires. Accordingly, while we
see no sign of bias in this case, we conclude reassignment of this and all related
disputes is required to ensure their just and timely resolution. See, e.g., Leoff v. S
& J Land Co., 630 F. App’x 862, 864, 866 (10th Cir. 2015) (reassigning for
failure to “comply strictly with the mandate” issued by this court); United States
v. Gupta, 572 F.3d 878, 892 (11th Cir. 2009) (same).
The district court’s order granting Myton’s motion to dismiss is reversed.
This case and all related matters shall be reassigned to a different district judge.
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The court and parties are directed to proceed to a final disposition both promptly
and consistently with this court’s mandates in Ute V, Ute VI, and this case.
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Comments: Editor's Comment: I am with the Tenth Circuit, I do not see why this issue is still being litigation. The tribes have jurisdiction over crimes committed in Indian County.