Amicus Curiae Brief — Hagen v. Utah

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‘\ | Supreme Court, US. TO ™

G FILED

NOV 18 1692

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No. 92-6281 OFFICE OF THE CLiRK |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

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or =

STATE OF UTAH,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF UTAH

BRIEF OF AMICUS CURIAE UTE INDIAN TRIBE

IN OPPOSITION TO THE WRIT OF CERTIORARI

Robert S. Thompson, III, Counsel of Record

Sandra Hansen

Jeanne S. Whiteing

Tod J. Smith

WHITEING & THOMPSON

1136 Pearl Street, Suite 203

Boulder, Colorado 80302

(303) 444-2549

Counsel for Amicus Curiae

Nov. 18, 1992 Ute indian Tribe

QUESTION PRESENTED’

1. Whether the State of Utah is precluded,

by virtue of its voluntary participation as a defendant

in Ute Indian Tribe v. Utah, 521 F.Supp. 1072 (D.

Utah 1981); aff'd in part, rev’d in part, 773 F.2d

1087 (10th Cir. 1985) (en banc), cert. denied, 479

U.S. 994 (1986), from relitigating the issue of

whether Congress intended to disestablish the

Uintah Valley Reservation, Utah.

LIST OF PARTIES

The petitioner in this action is Robert P.

Hagen, an enrolled member of the Little Shell Band

of Chippewa Indians, which is not an Indian tribe

that has been recognized by the United States. The

respondent is the State of Utah. The Ute Indian

Tribe appears before this Court, for the first time in

these proceedings, as amicus Curiae.

" The Ute indian Tribe opposes the petition for writ of

certiorari in this case and is filing this amicus brief pursuant to

Sup. Ct. R. 37.1 in order to bring to the Court’s attention

relevant matters not disclosed by the petitioner or respondent.

Because the petitioner filed in forma pauperis, the Tribe is also

filing its brief in accordance with Sup. Ct. R. 39.5.

INTEREST OF AMICUS UTE INDIAN TRIBE"

Through its governing body, the Ute Indian

Tribe’*" exercises civil and criminal jurisdiction

within the confines of the Uintah and Ouray Reserva-

tion in northeastern Utah. After more than 10 years

of litigation, in which all parties with an interest in

the geographical scope of the Tribe’s jurisdiction,

including the State of Utah, were fully represented,

the boundaries of the Reservation were confirmed by

the United States Court of Appeals for the Tenth

Circuit in 1985. See Ute Indian Tribe v. Utah, 521

F.Supp. 1072 (D. Utah 1981), aff’d in part, rev'd in

part, 773 F.2d 1087 (10th Cir. 1985) (en banc),

cert. denied, 479 U.S. 994 (1986). The decision of

the Tenth Circuit confirmed that the Tribe’s jurisdic-

tion extends to some 4.4 million acres. The current

controversy, in which the Tribe was not invited to,

and, heretofore, did not, participate, threatens to

** Letters from counsel for the petitioner and respondent

consenting to the Tribe's participation in this proceeding as

amicus curiae are incluced in Appendix A, as required by Sup.

Ct. Rule 37.2.

*** The Ute indian Tribe is organized as a constitutional

government under the provisions of the Indian Reorganization

Act, Act of June 18, 1934, 48 Stat. 986.

diminish by more than three million acres the

jurisdictional territory of the Tribe and the area in

which its citizens (and, in certain circumstances,

enrolled members of other federally recognized Indian

tribes) are governed by tribal and federal, as opposed

to state, law.

As a governmental entity with sovereign

authority over its territory, there is no issue of

greater importance to the Tribe than the extent of its

territorial jurisdiction. The Tribe has a fundamental

interest in protecting the integrity of its territorial

jurisdiction, especially where the geographic scope of

that jurisdiction has been established definitively in

a case in which this Court has already denied a writ

of certiorari. See Utah v. Ute Indian Tribe, 479 U.S.

994 (1986). Of similar importance, the rights,

interests and expectations of Reservation residents

have been established in reliance on the Tenth

Circuit’s decision for more than seven years. The

Tribe has a vital concern that those rights, interests

and expectations not be disrupted. In addition, as

the prevailing party in Ute Indian Tribe v. Utah,

supra, the Tribe has a significant interest in ensuring

that the judgment of the Tenth Circuit, obtained after

eee ———————————

10 years of costly litigation, is protected from

collateral attack, particularly in an action in which

the interests and views of neither the Tribe nor its

TABLE OF CONTENTS

QUESTION PRESENTED ..........25500s i

members were represented.

ROBT GP PAIIUUED ccc ccc ccc cece cccscces i

INTEREST OF AMICUS UTE INDIAN TRIBE ... ii

TABLE OF AUTHORITIES .............5.. viii

STATEMENT OF THE CASE ............. 1

Ute Indian Tribe v. Utah ........... 2

Be WD GUD Sect cceweccceseces 3

BU CUE ca weSeeeetdtecsuces 7

Ute Indian Tribe v. Utah (Revisited) ... 10

REASONS FOR DENYING THE WRIT ....... 12

l. it Would Be Premature for this

Court to Involve Itself in this

PET es ccecccccesesceses 12

A. The Writ of Certiorari

Should Be Denied Because

the Issues Presented for

Review Are Now Pending

Before the Federal District

Court for the District of

Dt -cteseeeee oe ses 15

5. The Writ of Certiorari ll. Principles of Comity and Finality

Should Be Denied Because Require that the Court Deny the

the Doctrine of Collateral Petition for Writ of Certiorari ... 28

Estoppel Preciudes the

State from Relitigating the A. This Court’s Actions in

Reservation-Boundary | Solem and DeCoteay Do

EE Ey ne 18 Not Require that the Court

1 ' Grant the Petition for Writ

: The __Reservation- of Certiorari in This

boundary _issue Proceeding ........... 30

advanced by the

State is identical to B. Granting the Petition for

the _Reservation- Writ of Certiorari in this

boundary issue Case Would Conflict with

decided against the Judicial Principles of

State in Ute Indian Comity and Finality ..... 36

—....... 20 Vv ad

9 ; iil. This Court Should Deny the

- The judgment __in Petition for Writ of Certiorari

Ute Indian _Tribe Because the State Possesses

was final ........ 21 and Has Always Possessed,

5 Criminal Jurisdiction Over Hagen

- The State was a Based on His’ [Non-Jindian

party to the Ute sel ae ee re 40

Indian Tribe

ih seeesees 24

4 ee ie he eee ee 45

The State had a full

and fair opportunity APPENDICES

to, and did,

+ GOrQesly igale 0 NETS pe Pee iene rrr la

the Reservation-

a — 9g PR ccc cc nce cecceseeeeoen 5a

; DE ccoecseeeeeeessweeans 12a

vi

vil

TABLE OF AUTHORITIES

CASES Page

Allen v. McCurry, 449 U.S. 90 (1980) ..... 17

Ashe v. Swenson, 397 U.S. 436 (1970) .... 21

Atlantic C Line R.R.C

398 U.S. 281 (1970) ..............5.. 16

Brough v. Appawora,

533 P.2d 934 (Utah 1976),

vacated and remanded, 431 U.S. 901 (1977)

aa a ae SIE on cb wads cece ’s 30, 31

Choo v. Exxon Corporation,

486 U.S. 140 (1988)................. 15, 16

Coffey v. Dean Witter Reynolds, Inc.,

961 F.2d 922 (10th Cir. 1992) .......... 19

Dairy Distr )

Western Conference of Teamsters,

294 F.2d 348 (10th Cir. 1961) .......... 22

211 N.W.2d 843 (S.D. 1973),

aff'd, 420 U.S. 425 (1975) ............. 33

Dec District C Court

420 U.S. 425 (1975) ......... 33, 34, 37, 39

vill

England v. State Board

of Medical Examiners, 375 U.S. 411 (1964) . 25

Ex parte Crow Dog, 109 U.S. 556 (1883) ... 31

eee...

eer iTh tee en... 25

Mattz v. Arnett, 412 U.S. 481 (1973) ..... 39

PET ee re 19, 24, 25

Morton v. Mancari, 417 U.S. 535 (1974) 1. 41

Craw Tribe, 471 US. 898 11985)... 36

B26 U.S 498 (1946) eee. Pe

csusaee pL con ot 16

seeatness fh biheniees Cart ttiaten 6

v. Yazzie, 909 F.2d 1287 (10th Cir. 1990),

cert. denied, _ U.S._,

111 S.Ct. 581 (1990) ............... 22, 35

ix

YT Paenear 31, 39

eon tee Payee ee 39

465 US. 473 (1984)... .. esse eee, 3, 32,

33, 37, 39

SF nia, ae P1112 (18101 Siglo) 32

702 F Supp, 1466 10.5.0. 1988) ......... 42

Bbe NW2d 117 (BD. 1977)... esc eee eee. 34

ay yn OO Ee 42

yx App. 1990),

rev'd on other grounds,

No. 910017, slip op. (Utah July 17, 1992) . 5,6

State v. Hagen, No. 910017,

slip op. (Utah July 17, 1992) ......... passim

State v. Janis, 317 N.W.2d 133 (S.D. 1982) . 34

State v. Perank, No. 860243,

slip op. (Utah July 17, 1992) ......... passim

tne

United States ex rel. Condon v.

Erickson, 478 F.2d 684 (8th Cir. 1973) .... 34

United States ex rel. Feather v._

Erickson, 489 F.2d 99 (8th Cir. 1973),

rev'd sub nom DeCoteau v. District

County Court, 420 U.S. 425 (1975) ....... 33

United $ ny

612 F.2d 319 (8th Cir. 1979),

vacated and remanded, 446 U.S. 980 (1980) 34

United States v. Heath,

509 F.2d 16 (9th Cir. 1974) ............ 42

United States v. McBratney,

Wie Oe re OU, 5 ccc ccccccceces 41, 45

United States v. Rogers, 45 U.S. 567 (1845). 45

United States v. Rogers,

960 F.2d 1508 (10th Cir. 1992) ......... 21

521 F.Supp. 1072 (D. Utah 1981),

773 F.2d 1087 (10th Cir. 1985)

(en banc), cert. denied, 479 U.S. 994 (1986) . 1

Ute Indian Tri Utah,

716 F.2d 1298 (10th Cir. 1983),

rev'd, 773 F.2d 1087 (10th Cir. 1985) (en banc) 3

xi

Washingt Washi :

Commercial Passenger Fishing

Vessel Ass'n., 443 U.S. 658 (1979) ....... 30

White Rocks Irrigation C M

45 Utah 79, 141 P.459 (1914) .......... 32

Yates v. United States,

354 U.S. 298 (1957)

(overruled on other grounds) ............ 21

STATUTES AND EXECUTIVE ORDERS

Act of Mar. 2, 1793, ch. 22, 8 5,

PRCT Cc. st eckeae eee 6b bee eee ON 16

Anti-Injunction Act,

ee 11, 14, 15, 18

Executive Order of January 5, 1882 ........ 1

Executive Order of October 3, 1861,

confirmed, Act of May 5, 1864, ch. 77,

ee cute fe eee eh be eee ek 6 ee 1

Indian Appropriations Act of 1902,

Act of May 27, 1902, ch. 888,

6 GE 20-23, 35

Indian Appropriations Act of 1905,

Act of March 3, 1905, ch. 1479,

_ & 5 rr 20-24, 35

xii

Indian Reorganization Act,

Act of June 18, 1934, 48 Stat. 986...... ii, 42

REGULATIONS

CUP ae ne eectidvecess es 41, 44

ah on ok we ee ee 6 OE 42

am U.B.G. 88 T8R1, 1982... wc ccc cece 31

Te 5 6 ied Se 6 oo bee Rd oe ee 31

3 32

51 Fed. Reg. 25,115 (1986) ....... 5, 43, 44

TRIBAL CONSTITUTION

Constitution of the Ute Indian Tribe,

cus achaue 1

OTHER AUTHORITIES

Stern & Gressman,

Supreme Court Practice, § 5.12 (5th ........ 25

xiii

STATEMENT OF THE CASE

in 1975, the Ute Indian Tribe, under authority

of its constitution,’ promulgated the Ute Law and

Order Code. Under the Code, and as authorized by

federal law, the tribal court exercises civil and

criminal jurisdiction throughout the original

boundaries of the Uintah and Ouray Reservation’.

Publication of the Code raised immediate

protest from the State of Utah and from the political

subdivisions located within the original boundaries of

the Reservation. See Ute Indian Tribe v. Utah, 521

F.Supp. 1072, 1077 (D. Utah 1981), aff’d in part,

rev'd in part, 773 F.2d 1087 (10th Cir. 1985) (en

banc), cert. denied, 479 U.S. 994 (1986). Some

officials went so far as to encourage their

' Article Vi, § 1(k) of the Constitution of the Ute Indian

Tribe authorizes the Tribal Business Committee to establish a

"Reservation Indian court” for “the maintenance of law and

order and the administration of justice” within the Reservation.

? The present Uintah and Ouray Reservation is comprised of

two separate but contiguous reservations established for the

use and occupancy of the Ute Indians. The Uintah Valley

Reservation was established by Executive Order of October 3,

1861, as confirmed by the Act of May 5, 1864, ch. 77, 12

Stat. 63. The Uncompahgre Reservation was established by

Executive Order of January 5, 1882. Only the boundary of the

Uintah Valley Reservation is at issue in this action.

1

constituents to openly resist enforcement of the

Tribe’s Code. 521 F.Supp. at 1078.

Ute Indian Tribe v. Utah

In order to establish, once and for all, the

exterior boundaries of the Reservation, the Tribe filed

an action for declaratory relief in the Federal District

Court for the District of Utah in 1975. Full

participants to the proceedings included the Tribe as

plaintiff; State of Utah, as a defendant-intervenor;

the Counties of Duchesne and Uintah and the Cities

of Duchesne and Roosevelt as defendants; and the

United States as amicus curiae.*

The issues litigated in Ute Indian Tribe were

(1) whether, by various statutes, Congress intended

to disestablish portions of the Uintah Valley and

Uncompahgre Reservations, and (2) the force and

effect of the Tribe’s Code within the boundaries of

the Reservation. 521 F.Supp. at 1075. The district

court held that the Uncompahgre Reservation had

been disestablished, but that the Uintah Valley

3 The United States supported the Tribe’s position that the

Uintah Valley Reservation had not been disestablished. The

Tribe is not aware of any change in fact or law that would

indicate the United States has since altered its position on this

issue.

Reservation remained largely intact. The Tribe and

State filed cross appeals to the United States Court

of Appeals for the Tenth Circuit.

On appeal, a two-judge majority of a panel of

the Tenth Circuit initially ruled that substantial

portions of the Uintah Valley Reservation had been

disestablished. See Ute Indian Tribe v. Utah, 716

F.2d 1298 (10th Cir. 1983), rev'd, 773 F.2d 1087

(10th Cir. 1985) (en banc). However, on rehearing

in light of this Court's intervening decision in Solem

v. Bartlett, 465 U.S. 473 (1984), a majority of the

Tenth Circuit, sitting en banc, ruled that the Uintah

Valley Reservation had not been disestablished, but

had been diminished with respect to two parcels of

land not at issue in this case. See 773 F.2d 1087

(10th Cir. 1985) (en banc). The defendants,

including the State of Utah, sought review by this

Court, but the writ of certiorari was denied. See

Utah _v. Ute Indian Tribe, 479 U.S. 994 (1986).

Unhappy with this Court’s denial of review of the

Tenth Circuit’s decision, the State has continued to

raise the boundary issue at every opportunity.

State v. Hagen

The present case was initiated in 1988, when

3

the State of Utah filed an information against Robert

P. Hagen, charging him with distribution of a

controlled substance for value, to wit: marijuana, a

third-degree felony. The alleged crime took place in

Myton, Utah, which is located within the exterior

boundaries of the Reservation, as those boundaries

had been confirmed by the Tenth Circuit in Ute

Indian Tribe. The initial charges against the defen-

dant were dismissed, without prejudice, when the

State learned that the defendant was being prose-

cuted in federal district court for the same offense.

The federal action against Hagen was

dismissed for lack of jurisdiction, after the court

determined that Hagen was not an Indian for criminal

jurisdiction purposes. The State then refiled the

same charges against him.

Hagen entered a plea of guilty, but

subsequently filed a motion to arrest judgment and

withdraw his plea. Even though Hagen had earlier

prevailed on his argument that the federal court

lacked jurisdiction to prosecute him on the ground

that he was not Indian, Hagen now argued that the

State lacked jurisdiction over the offense on the

grounds that he was Indian and the alleged crime

4

had been committed on the Reservation.

Following an evidentiary hearing, the trial

court denied Hagen’s motion to arrest judgment and

withdraw his plea. Transcript of Hearing at 25-26,

lines 25-04, State v. Hagen, (hereafter, "T.__, lines

_").* The court determined that Hagen was not an

Indian for purposes of criminal jurisdiction because

he was not a member of a federally recognized

tribe.© 17.25, lines 13-16. The court expressly

declined to address the issue of whether the locus of

the crime was within the Reservation.® T.25, lines

12-13. On appeal, the Utah Court of Appeals ruled

that the trial court had applied the improper standard

* Relevant portions of the transcript are included in

Appendix | to the Petition for Writ of Certiorari, Hagen v. State

of Utah, No. 92-6281 (filed October 15, 1992) (hereafter,

"Pet. at__—”)?«.

®* Hagen is a member of the Little Shell Band of Chippewa

indians, which has not been recognized by the United States.

See 51 Fed. Reg. 25,115 (1986).

® indeed, the trial court judge acknowledged that “[i]f the

question of Reservation status had to be addressed this court

would have to withdraw,” because the judge, who had repre-

sented Duchesne County in the Ute Indian Tribe litigation, had

"spent a good part of ten years arguing that very question, and

quite frankly [) already hald his] mind made up on that point.”

T. 25, lines 16-20.

and burden of proof by requiring Hagen to establish,

by clear and convincing evidence, that he was

indian. State v. Hagen, 802 P.2d 745 (Utah App.

1990), rev’d on other grounds, No. 910017, slip op.

(Utah July 17, 1992). For that reason alone, the

Utah Court of Appeals reversed Hagen’s conviction.

Id. at 747.

The Utah Supreme Court declined to address

Hagen’s status as an Indian. Instead, on the basis of

its decision in State v. Perank, No. 860243, slip op.

(Utah July 17, 1992), discussed below, the court

summarily ruled that the State had properly

exercised jurisdiction over Robert Hagen, because

the offense with which he was charged had been

committed outside the boundaries of the

Reservation.’ See State v. Hagen, No. 910017,

” Until it reached the Utah Supreme Court, the only issues

litigated in the Hagen case were whether Hagen was Indian for

applied the proper standard and allocation of the burden of

proof in determining that he was not Indian. In declining the

State’s suggestion that it defer ruling in the Hagen case

pending the Utah Supreme Court's resolution of the boundary

issue in Perank, the Utah Court of Appeals stated:

[t}he Tenth Circuit's decision does not appear to hold

(continued...)

slip op. Although it involved a question that had

been litigated in Ute Indian Tribe, and affected the

jurisdictional authority of the Tribe and the United

States, the decision in the Hagen case was rendered

without any participation by those two sovereigns.®

State v. Perank

Perank involved another criminal prosecution

that arose in Myton, Utah, and concerned a

defendant who belatedly claimed to be Indian. In

that action, the State encouraged the Utah Supreme

7(...continued)

open any role for the state courts in refining its holding

in Ute Indian Tribe . . . [Wie are hard pressed to see

how, given the Supremacy Clause and the doctrine of

collateral estoppel, our state courts could reach a

contrary decision [on the Reservation-boundary issue)

that would have any practical effect.

802 P.2d at 747. The State appealed this dicta to the Utah

Supreme Court, raising the Reservation-boundary issue for the

first time in the Hagen case.

® The petitioner suggests that the Tribe “had a full and fair

opportunity” to litigate the Reservation-boundary issue in the

State court proceedings. See Pet. at 7. While the Tribe, State

and United States did have a full and fair opportunity to litigate

the issue in federal court, the Tribe did not appear as a party or

otherwise in the Hagen case. The Tribe did appear as amicus

in the Perank case, but only on the issue of Perank’s status as

an Indian and only after the Utah Supreme Court had heard oral

argument in that action. See State v. Perank, slip op. at 43

(Zimmerman, J., dissenting).

Court to conclude, contrary to the 1985 en banc

decision of the Tenth Circuit, that the Uintah Valley

Reservation had been disestablished so as to

preclude federal and/or tribal jurisdiction over crimes

committed by Indians on non-trust lands within the

Reservation.

The case arose in 1983, when Clint Perank

entered a guilty plea to a charge of third-degree

burglary in Myton, Utah. At the time, Perank was

not enrolled or eligible for enroliment in the Ute

Indian Tribe, the only tribe with which he claimed

any affiliation.

Perank’s sentence on the burglary offense was

commuted to probation. In 1986, at a revocation-of-

probation hearing, Perank asserted for the first time

that the State lacked jurisdiction to prosecute him for

his probation violation or the underlying burglary

offense, arguing that he was Indian and the crime

had been committed within the boundaries of the

Reservation.

The State introduced no evidence challenging

Perank’s assertion that he was Indian for

jurisdictional purposes. Thus, the trial court had

virtually no choice but to rule that Perank was an

indian for criminal jurisdiction purposes. As the

State was aware, only after making that ruling could

the trial court go on to address the question of

whether the Uintah Valley Reservation had been

disestablished.

After hearing oral argument in Perank’s

appeal, the Utah Supreme Court invited the Tribe to

file an amicus brief in the Perank case. The Tribe

confined its arguments to a vigorous assertion that

Perank was not a member of, and was not eligible

for membership in, the Tribe, and therefore was not

an Indian for purposes of criminal jurisdiction.

Remarkably, the State filed an 8-page reply brief

arguing, contrary to the very Indian tribe in which

Perank claimed membership, that Perank was Indian

for jurisdictional purposes.®

The Utah Supreme Court ultimately affirmed

Perank’s Indian status, and went on to rule that the

* its failure to introduce any evidence during the trial on

Perank’s legal status as a non-indian and its vigorous assertion

on appeal that Perank was an Indian demonstrates that the

State’s main interest in revoking Perank’s probation was in

relitigating the Reservation-boundary issue, not in getting an

offender off the streets.

Uintah Valley Reservation had been disestablished so

as to exclude Myton, Utah, from the Reservation

boundaries. Based upon that finding, the court

concluded that the State had properly exercised

jurisdiction over Perank. See State v. Perank, slip

op., supra.

Ute Indian Tribe v. Utah (Revisited)

Upon learning of the Utah Supreme Court’s

decisions in Perank and Hagen, the Tribe filed a

renewed motion for injunctive relief in the Federal

District Court for the District of Utah.’® In its

. = During the original Ute Indian Tribe proceeding, the

district court had denied the Tribe’s motion to enjoin the State

and its political subdivisions from interfering with the Tribe's

lawful exercise of jurisdiction within the Reservation.

However, foreseeing that the State would be dissatisfied with,

and might resist, the federal court's decision, the court retained

continuing jurisdiction over the action, stating:

[t}he denial of injunctive relief at this point,

however, is a denial without prejudice. if

circumstances shall arise that justify invoking

the exercise of this Court's equitable powers,

the Court Stands ready to exercise such

continuing jurisdiction upon the making of an

appropriate record, and to enter such orders as

ye

a id of its iurisdiction.

Ute _ Indian Tribe v. Utah, 521 F.Supp. at 1157 (emphasis

(continued...)

10

tl GE hal

motion, the Tribe asked the district court to enjoin

the Utah Supreme Court from issuing the remittitur,

and thereby entering as final, its decision in State v.

Perank.

A hearing on the Tribe’s motion was held on

August 3, 1992. At that time, the parties stipulated

that the State and its political subdivisions would

refrain from enforcing the Utah Supreme Court's

decision in State v. Perank or from exercising

criminal jurisdiction over Indians who are members of

any federally recognized Indian tribe or from

interfering in any way with the Tribe’s lawful

exercise of civil and criminal jurisdiction within the

boundaries of the Reservation, as those boundaries

were confirmed by the Tenth Circuit in Ute Indian

Tribe. The stipulation was incorporated into an

Order of the Court on September 2, 1992, nunc pro

19(.. continued)

added). The emphasized comments, which mirror the language

of the Anti-injunction Act, 28 U.S.C. § 2283, suggest that the

district court believed that the appropriate authority for

compelling the State’s compliance with the federal courts’

decision on the reservation-boundary issue was that Act. See

discussion infra at 15-18.

11

tunc August 3, 1992."'

On the day following the federal court hearing,

the Utah Supreme Court issued a Minute Order

Staying issuance of the remittitur and finality of the

judgment of the Court in State v. Perank "pending

(1) the conclusion of any proceedings on certiorari to

the United States Supreme Court and (2) the final

disposition of the injunctive proceedings pending in

the United States District Court for the District of

Utah.” See Minute Entry, State v. Perank, No.

860243 (Utah entered Aug. 4, 1992). A similar

order staying effect of the judgment in State v.

Hagen was issued on August 18, 1992."

REASONS FOR DENYING THE WRIT

I. It Would Be Premature for this Court to

involve itself in this Action.

There is an ongoing federal district court

proceeding that is now addressing the issues raised

in this action. The federal district court has already

enjoined enforcement of the Utah Supreme Court’s

"' The Order and Stipulation are attached as Appendix B.

'? The stays entered in State v. Perank and State v. Hagen

are included as Appendix C.

12

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decision in State v. Perank, and has set a briefing

schedule and hearing for oral argument on the

Tribe’s motion for a permanent injunction. The Utah

Supreme Court, itself, has stayed the finality of its

decisions in State v. Perank and State v. Hagen,

pending the outcome of the federal district court

action.'* If this Court were to now grant certiorari,

3 In petitioning the district court for injunctive relief, the

Tribe was particularily concerned with jurisdictional conflicts

that could arise should the State or its subdivisions rely on the

Perank decision. The Tribe’s concerns were alleviated by the

district court's preliminary injunction and Utah Supreme Court's

stay. Accordingly, there is no immediate jurisdictional conflict

or “volatile” situation that this Court must step into to resolve,

as suggested by petitioner and respondent. See Pet. at 11-12;

State of Utah’s Brief in Support of Petition for Writ of Certiorari

at 11-12, Hagen v. State, No. 92-6281 (filed Nov. 6, 1992)

(hereafter “State’s Br. at __").

Similarly, Hagen’s actions - in asserting, in federal

court, that he was non-indian, then asserting in State court

that he was Indian - demonstrate that, contrary to the State's

claim, the problem of “criminal defendants charged in state

court claimling) they should be in federal court, and vice

versa”, State’s Br. at 12, pre-existed issuance of the Utah

Supreme Court’s conflicting decisions on the Reservation-

boundary issue. Therefore, it is not a problem that was caused

by the issuance of the Perank and Hagen decisions, nor is it a

problem that would be resolved by this Court’s granting the

petition for writ of certiorari.

Nor will the extensive record on the Reservation-

boundary issue "go by the wayside”, see State’s Br. at 13, if

the boundary issue is not resolved by this Court on this petition

for writ of certiorari. The federal district court proceeding

(continued...)

13

it would deprive the district court of the specific

remedy, afforded by Congress in the "relitigation

exception” to the Anti-injunction Act, 28 U.S.C. §

2283, to protect and effectuate its prior judgment

addressing the boundaries of the Reservation. The

Court would also deprive the Tribe of its remedy,

under the same Act of Congress, to protect the

federal court judgment it obtained after 10 years of

costly litigation, in which all parties with an interest

in the outcome of the litigation were fully and fairly

represented.

Moreover, if the Court granted certiorari in this

case, it would be sending a strong message that the

judgments of lower federal courts, involving federal

law issues of such major import and significance as

the boundaries of an Indian reservation, are not final

and conclusive, and can be relitigated at will in state

courts, even in the most minor of criminal cases.

The Court’s message would require every Indian tribe

interested in protecting a federal-court judgment

*3(.. continued)

involves the very same record, and will resolve the primary

issue in this action, to wit: whether the State is precluded

from relitigating the boundary issue.

14

construing reservation boundaries to involve itself in

literally every criminal proceeding or jurisdictional

conflict arising on its reservation and involving not

only its own tribal members, but also anyone

claiming to be Indian.

A. The Writ of Certiorari Should Be Denied

Because the Issues Presented for Review Are

Now Pending Before the Federal District Court

for the District of Utah.

The pending district court proceeding that is

now addressing the issues raised by this action was

initiated by the Tribe when it filed a motion in the

Federal District Court for the District of Utah

pursuant to the "relitigation exception” to the Anti-

Injunction Act. In its motion, the Tribe asked the

district court to enjoin the Utah Supreme Court from

issuing the remittitur, and thereby entering as final

its judgment, in State v. Perank. See Renewed

Motion for Injunctive Relief, Ute Indian Tribe v. Utah,

No. C-75-408J (D. Utah filed July 31, 1992).

The Anti-injunction Act, 28 U.S.C. § 2283,

generally prohibits a federal court from interfering

with proceedings in the state courts. See Choo v.

Exxon Corporation, 486 U.S. 140, 145 (1988). The

Act, which has existed in some form since 1793,

15

see Act of Mar. 2, 1793, ch. 22, § 5, 1 Stat. 335,

is a natural corollary to Congress’ decision to

implement a dual system of federal and state courts.

Obviously, this dual system could not function if

state and federal courts were free to vie with each

other for control over a particular case or issue.

Atlantic Coast Line R.R. C Brotherhood of

Locomotive Engineers, 398 U.S. 281, 286 (1970).

By generally barring frequent federal court interven-

tion in state court proceedings, the Act forestalls

"needless friction between state and federal courts”.

Oklahoma Packing Co. v. Gas Co., 309 U.S. 4, 9

(1940)."*

Congress, however, has permitted injunctions

in certain, specific circumstances, namely when an

injunction is expressly authorized by statute; where

necessary in aid of the federal court's jurisdiction; or

where necessary to protect or effectuate the federal

court’s judgment. Choo v. Exxon Corp., 486 U.S. at

* \lronically, in the case now before this Court, it is a

decision of the majority of the Utah Supreme Court to ignore

principles of comity and federalism and to decline to defer to

the Tenth Circuit’s resolution of the boundary issue that has

created the “needless friction between state and federal

courts” that the Anti-injunction Act was designed to avoid.

16

146. The third exception - termed the "relitigation

exception” - was "designed to permit a federal court

to prevent state litigation of an issue that previously

was presented to and decided by the federal court."

Id.

The relitigation exception is intended to

"ensure the effectiveness and supremacy of federal

law", 486 U.S. at 146, and is "founded in the well-

recognized concepts of res judicata and collateral

estoppel”. id. at 147. Thus, in addition to permit-

ting federal courts to effectuate their prior

judgments, the relitigation exception is designed “to

relieve [the prevailing party in a federal court action]

of the cost and vexation of multiple lawsuits,

conserve judicial resources, and, by preventing

inconsistent decisions, encourage reliance on

adjudication.” Allen v. McCurry, 449 U.S. 90, 94

(1980), quoting Montana v. United States, 440 U.S.

147, 153-54 (1979).

This Court has recognized that the federa!

district courts are best suited to determine whether

state or federal law bars a party from raising, in a

subsequent state court proceeding, an issue that

previously has been presented to and decided by the

17

federal courts. See Parsons Steel, Inc. v. First

Alabama Bank, 474 U.S. 518, 525-26 (1986). This

Court has also concluded that the federal district

courts are in the best position to determine whether,

under the relitigation exception to the Anti-injunction

Act and general principles of equity, comity and

federalism, state courts should be enjoined from

deciding an issue that previously was raised and

decided by the federal courts. Id. at 526.

Given this Court’s recognition of the

competence and ability of the district courts, and the

Tribe’s current motion now pending before the

Federal District Court for the District of Utah, this

Court should deny the writ of certiorari and permit

the district court to resolve the paramount issues

presented by this unusual case.

B. The Writ of Certiorari Should Be Denied

Because the Doctrine of Collateral Estoppel

Precludes the State from Relitigating the

Reservation-Boundary Issue.

As indicated in the Tribe’s “Question

Presented", the threshold issue in this case is

whether the State is collaterally estopped from

relitigating the Reservation boundaries. This issue

should be resolved by the pending federal district

18

court proceeding and this Court should deny review

in order to allow the district court to make that

determination. in addition, collateral estoppel

presents another reason why this Court should deny

the State another forum in which to relitigate the

Reservation-boundary issue.

Under the doctrine of collateral estoppel, once

an issue has been actually and necessarily

determined by a court of competent jurisdiction, that

determination is conclusive in subsequent suits

based on a different cause of action involving a party

to the prior litigation. Montana v. United States,

440 U.S. at 153. The State now asks this Court to

review the identical issue that it declined to review

in Ute Indian Tribe based, not upon any change in

the law, see discussion infra at 28-33, but upon the

State’s unrelenting claim that the Tenth Circuit was

wrong. The State’s actions have resulted in

repetitious, vexatious and wasteful litigation that the

doctrine of collateral estoppel is framed to avoid. As

set forth below, each of the criteria for application of

the doctrine, see, e.g., Montana, supra; Coffey v.

Dean Witter Reynolds, Inc., 961 F.2d 922, 925

(10th Cir. 1992), is fully satisfied in this case.

19

the State is identical to the Reservation-

boundary issue decided against the State in

Ute Indian Tribe.

The issue litigated by the Tribe, State,

counties, cities and United States in Ute Indian Tribe

is identical to the issue raised by the petitioner and

respondent here. The question common to both

actions was whether Congress intended to

disestablish the Reservation. The facts relevant to

resolving the issue are identical, and concern

construction of various Congressional enactments at

the turn of the century."° Moreover, the legal

arguments raised by the State in its brief in support

of the petition are virtually identical to those raised

when it sought a writ of certiorari in Ute Indian

Tribe.

It is of no legal significance that the

Reservation-boundary issue was litigated in a civil

context in Ute Indian Tribe and in a criminal context

'® The principle Acts at issue in both Ute indian Tribe v.

Utah and State v. Perank were the Indian Appropriations Act of

1902, Act of May 27, 1902, ch. 888, 32 Stat. 245, and the

indian Appropriations Act of 1905, Act of March 3, 1905, ch.

1479, 33 Stat. 1048, 1069-70. See State v. Perank, slip op.

at 19, 25.

20

in State v. Hagen. Resolution of the issue turns on

identical facts, i.e., construction of the 1902 and

1905 Indian Appropriations Acts. See Ute Indian

Tribe v. Utah, 773 F.2d at 1089. Collateral estoppel

bars a government from relitigating, in a subsequent

criminal action, an issue that was actually and

necessarily decided against it in a prior civil

proceeding. Yates v. United States, 354 U.S. 298,

335 (1957) (overruled on other grounds); United

States v. Rogers, 960 F.2d 1508 (10th Cir. 1992).

Cf. Ashe v. Swenson, 397 U.S. 436, 443 (1970)

("when an issue of ultimate fact has once been

determined by a valid final judgment, that issue

cannot again be litigated between the same parties

in any future lawsuit.”) (emphasis added).

2 The jud in Ute Indian Tri final.

This Court’s denial of certiorari in Ute Indian

Tribe did not, as the State suggests, render the

Tenth Circuit’s decision less than dispositive on the

Reservation boundary issue."® To the contrary, a

denial of certiorari establishes the finality of the

'® Under the State's rationale, the finality of every case for

which this Court denies a writ of certiorari is brought into

question. See discussion infra at 27-29.

21

decision from which appeal was sought. See Dairy

Distrit w Cont

Teamsters, 294 F.2d 348, 352 (10th Cir. 1961)."’

'? When it asserts that the Tenth Circuit misapplied this

Court's “fairly clean analytical structure", gee State's Br. at 14,

the State grossly distorts the en banc and district courts’

findings that the Uintah Valley Reservation was not disestab-

lished. Ever since the Ute indian Tribe litigation was initiated,

the State has maintained that the Act of May 27, 1902, 32

Stat. 245, effected the opening of the Reservation. The 1902

Act contains language restoring the to-be-opened lands to the

public domain. However, the 1902 Act was not the controlling

legislation leading to the district court’s and Tenth Circuit's

decisions in Ute Indian Tribe.

The Tenth Circuit has acknowledged that, had it

determined that the 1902 Act opened the Reservation, it, too,

would have found that Congress intended to disestablish the

Reservation. See Pittsbura & Midway Coal Mining Co. v.

Yazzie, 909 F.2d 1287, 1400 (10th Cir. 1990), cert. denied,

_ U.S.__, 111 S.Ct. 581 (1990). However, the Tenth Circuit

rejected the State’s argument that the 1902 Act opened the

Reservation, determining, on the basis of the voluminous

evidence and briefs before it, that the Act of March 3, 1905,

33 Stat. 1048, effected the opening of the Reservation. in

part because the 1905 Act contained no language restoring the

opened lands to the public domain, the Tenth Circuit

concluded, as had the district court, that Congress did not

intend to disestablish the Reservation.

While the State would have this Court believe that the

Tenth Circuit misapplied Supreme Court precedent, see State's

Br. at 14-26, when stripped of its veneer, the State’s argument

is basically a complaint that the Tenth Circuit rejected the

State’s argument that the 1902 Act opened the Reservation.

That same compiaint formed the basis of the petition for writ

of certiorari that the State filed, and this Court denied, in Ute

indian Tribe. No “new” reason exists to once again allow the

(continued...)

22

In announcing its en banc decision, the Tenth

Circuit expressly held:

The... Act [of May 27 1902, 32 Stat.

245] would have returned ali surplus

Uintah Reservation lands to the public

domain if the Ute Tribe’s consent could

be obtained. That consent was never

forthcoming. The Tribe refused all

requests to give up their lands... .

Finally Congress passed the . . . Act [of

March 3, 1905, 33 Stat. 1048],

opening the Reservation for non-indian

settlement under the homestead and

townsite laws. This measure, which

actually effected the opening of the

Reservation, did not contain the public

domain language used in the 1902 Act.

It is not possible to find that the series

of congressional enactments

summarized above revealed a “baseline

purpose of disestablishment,” . . . that

carried through into the 1905 Act.

The .. . conclusion [of the Tenth

Circuit panel} that the Uintah

Reservation was diminished by the

1905 Act is not correct. Indeed, we

7(...continued)

State to advance an argument - that the 1902 Act opened the

Reservation - that has failed on at least three previous

occasions in the federal courts.

23

accept the district’s court view that the

Reservation’s boundaries were not

changed by the 1905 Act.

Ute Indian Tribe v. Utah, 773 F.2d at 1089.

This unequivocal statement is a final ruling on

the merits of the issue of disestablishment of the

Reservation. The State of Utah is bound by that

decision and is precluded from raising and seeking to

relitigate the issue in this or any other court.

3. The State was a party to the Ute Indian Tribe

itigati

When the Tribe initiated the Ute Indian Tribe

litigation in 1975, the named defendants were

Duchesne County and the Cities of Roosevelt and

Duchesne. The State voluntarily intervened as a

party-defendant in 1976.'® See Ute Indian Tribe v.

Utah, 521 F.Supp. at 1078. Merely because the

federal courts rendered a decision contrary to the

position advanced by the State does not absolve the

State from being bound by the federal court’s

decision. Cf. Montana v. United States, 440 U.S. at

163 (precluding the federal government from

relitigating an issue of federal law in federal court

** Uintah County was joined as a defendant in 1979.

24

ee

se

after the government had submitted to adjudication

of its federal claims in a state forum and the state

court had ruled adversely to the government);

England v. State Board of Medical Examiners, 375

U.S. 411, 419 (1964) (same).'® Considerations of

comity, as well as repose, militate against permitting

relitigation of a federal issue in a state forum at the

behest of a party who chose to litigate that issue in

federal court in the first instance.

4. The State had a full and fair opportunity to,

a ea ay oy wy in Ute Indian Trit

The State has not alleged any procedural

impropriety, such as would justify relitigation of the

Reservation-boundary issue, in the federal courts’

handling of Ute Indian Tribe. Cf. Montana v. United

States, 440 U.S. at 164 n.11 (ruling that collateral

estoppel is not applicable where there is reason to

'® Had the State wanted to participate in the Ute Indian

Tribe litigation, but not be bound by the decision of the federal

courts on the Reservation-boundary issue, it could have

smeene as an amicus curiae. See

Kerr-McGee Chemical

Corporation v. Hartigan, 816 F.2d 1177 (7th Cir. 1987)

(holding that the State of Illinois was not bound by the decision

of a federal court issued in a prior action in which the State

participated as an amicus curiae).

25

doubt the “quality, extensiveness, or fairness of

procedures followed in prior litigation"). Rather, the

only “impropriety” alleged by the State is the Tenth

Circuit’s failure, sitting en banc, to rule that the

Reservation had been disestablished. See State’s Br.

at 16-24.

In reaching its decision on the Reservation-

boundary issue, the district court conducted a two-

day trial; took testimony from 18 witnesses; and

admitted more than 800 documentary exhibits.

Besides giving careful scrutiny to these

documents and the record at trial, t[{he

district] court [] studied the extensive pretrial

memoranda and post-trial briefs submitted by

the parties and the United States as amicus,

and {[]) examined numerous historical

documents authenticated in the discovery

process but not included in the compilation of

joint exhibits offered at trial, and other learned

treatises and historical works that [were]

relevant to this Court’s determinations.

521 F.Supp. at 1080.

The trial record was certified to the Tenth

Circuit. Each party and the United States, as

amicus, submitted extensive briefs to the Tenth

Circuit in support of their respective positions, both

when the initial panel considered the case, and again

26

when it was heard by the court en banc.” The

State and political subdivi-sions petitioned this Court

for review of the Tenth Circuit’s final decision.”"

Obviously, the State vigorously litigated the

Reservation-boundary issue, all the way to the

highest court in the land. This Court should again

reject the State’s efforts to relitigate the boundary

issue. To do otherwise will bring into question the

finality of every decision this Court has been asked,

but has declined, to review; would subject the

prevailing party in every federal court action to the

cost and vexation of defending itself, on the same

issue, in multiple lawsuits; would encourage forum

shopping by the losing party in federal court

litigation, in the hope of finding a state court willing

20 The en banc pane! noted that “[t)he district court's

opinion was indeed well researched on [the question of

disestablishment], and other [issues] as well.” Ute Indian Tribe

v. Utah, 773 F.2d at 1089.

2" The United States filed a brief in opposition to this Court

granting certiorari. In that brief, the United States character-

ized as “exhaustive” the federal courts’ consideration of the

Reservation-boundary issue, see Brief of United States at 14-

15, Utah v. Ute Indian Tribe, No. 85-1821 (filed Nov. 1986),

indicating that the federal government fully supports the en

banc decision of the Tenth Circuit that the Uintah Valley

Reservation had not been disestablished.

27

to enter a decision that conflicts with a prior decision

of a federal court; and would deprive all federal court

decisions of finality, except for those decisions

issued by this Court. Such results would wreck

havoc on the dual system of courts contemplated by

our founding fathers and instituted by the First

Congress.

il. Principles of Comity and Finality Require that

the Court Deny the Petition for Writ of

Certiorari.

This action is now before this Court as a result

of the State’s “opportunistic misuse of [a] petty

criminal prosecution to readjudicate a settied issue”

of federal law. See State v. Perank, slip op. at 42

(Zimmerman, J., dissenting). In proceedings that

involved “unequal and inadequate briefing”,”* id.,

and in which all parties with an interest in the

outcome of the litigation were not fully and fairly

represented, id. at 43, the State achieved “what it

22 Justice Zimmerman’s dissent contradicts the State's

suggestion, see State's Br. at 13, that the Utah Supreme Court

considered the Ute Indian Tribe record, which had been

certified to that court, when it decided State v. Perank. See

slip op. at 42-43 (indicating that the only materials considered

by the court were the briefs submitted by the parties and

ine).

28

Deaton.

ia at ee a

has desperately sought for six years - a second shot

at persuading the United States Supreme Court to

reject the Tenth Circuit’s ruling [in Ute Indian Tribe

v. Utah, 773 F.2d 1087] and to give Utah control

over a large part of the original reservation.” Slip op.

at 42 (Zimmerman, J., dissenting). This Court

should not countenance the State’s machinations,

which "come[] at an unacceptably high cost to the

relationship between the state and _ federal

judiciaries.” Id. Instead, the Court should uphoid

what has been the settled law in Utah for more than

seven years, and deny the writ of certiorari.”

23 The State’s unabashed efforts (undertaken in proceedings

to which neither the Tribe nor the United States was a party)

to relitigate, in its own courts, the federal Indian law issues

resolved by the en banc decision of the Tenth Circuit is reminis-

cent of the persistent and occasionally malicious efforts by the

State of Washington more than a decade ago to strip its Indian

citizens of their rights secured by treaties and statutes.

That State’s “extraordinary machinations” to resist

federal law, now being repeated in Utah, prompted this Court

to comment:

{e)xcept for some desegregation cases .. ., the

district court has faced the most concerted

official and private efforts to frustrate a decree

of the federal court witnessed in this century.

The challenged orders and this appeal must be

reviewed by this court in the context of events

(continued...)

29

A. This Court’s Actions in Solem and DeCoteau

Do Not Require that the Court Grant the

Petition for Writ of Certiorari in This

Proceeding.

In the proceedings below, the State argued

that the Utah courts were free to ignore the 1985 en

banc decision of the Tenth Circuit in Ute Indian

Tribe.** The State now urges that same argument

23. continued)

forced by litigants who offer the court no

Vessel Abeta, 443 U. S. 658, 696 n. 36 11978)

In reviewing the State’s attempts to obtain this Court's

review of the Reservation-boundary issue, this Court should

consider the context created, and forced upon the Court and

Tribe, by the State.

7* The State’s argument is based, in part, upon the State's

perception that the Tenth Circuit failed to show proper

deference to three previous decisions of the Utah Supreme

Court, which, the State asserts, decided the disestablishment

issue. State’s Br. at 9, 11 & n.9. However, in none of the

cases relied on by the State had the Reservation-boundary

issue been fully raised and considered by the state courts.

Brough v. Appawora, 533 P.2d 934 (Utah 1976),

vacated and remanded, 431 U.S. 901 (1977), involved a

personal injury action in which the defendant, an enrolled

member of the Tribe, claimed to be subject to tribal, rather than

State, jurisdiction because the tort had been committed on the

Reservation. in deciding the case, the Utah Supreme Court did

not consider the relevant Acts of Congress to determine

whether they displayed a Congressional intent to disestablish

(continued...)

30

4(.. continued)

the Reservation. Rather, in what may well be the most

outrageous reported decision (mis)applying this Court's Indian

law decisions, the Utah Supreme Court found that the

Reservation had been disestablished because, the Court

(wrongly) determined, the Tribe had ceased to exist.

The Ute nation, of the long-ago treaty, no

longer exists, and the descendants of the

inhabitants of that nation are now citizens of

the United States. When a nation ceases to

exist, its treaties are no longer of any force or

effect, and the descendants of those who

constituted the erstwhile nation cannot

thereafter claim any benefits under the treaty.

553 P.2d at 935.

Showing complete contempt for this Court's

precedents, e.g., Ex parte Crow Dog, 109 U.S. 556 (1883)

(confirming tribal jurisdiction over offenses committed by

indians on a reservation), and for Acts of Congress, see 25

U.S.C. $§ 1321, 1322, as amended (requiring tribal consent to

a State’s assumption of jurisdiction on a reservation), the Utah

Supreme Court upheld the trial court’s determination that an

indian was subject to state court jurisdiction for a tort

committed on the Reservation, under the rationale that:

[tlo permit an indian who commits a [tort or crime on

the Reservation] to show disdain for the [State]

prosecuting officials and c'mm the sanctuary of the

tribal method of procedure is unthinkable.

553 P.2d at 936. After Brough was remanded to the state

court for reconsideration in light of this Court's decision in

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977), the

defendant had it removed to federal court pursuant to 28

U.S.C. § 1441. The federal district court later enjoined

concurrent state proceedings, in order to aid the federal court's

(continued...)

31

on this Court. The State’s position ignores all princi-

ples of comity and finality.

As support for its position that the Utah courts

could blatantly ignore the Tenth Circuit’s en banc

decision in Ute Indian Tribe, the State has repeated

relied upon this Court’s having granted a writ of

certiorari to review conflicting decisions of the

United States Court of Appeals for the Eighth Circuit

and the Supreme Court of the State of South Dakota

with respect to the boundaries of the Cheyenne

River and Lake Traverse Indian Reservations.

However, in its argument, the State completely

ignores the chronology of the series cases that led

this Court to grant review in Solem v. Bartlett, 465

2*(.. continued)

removal jurisdiction. See 28 U.S.C. § 2283.

in Perank, the Utah Supreme Court distinguished

Sowards v. Meagher, 37 Utah 212, 108 P. 1112 (1910),

admitting that, “it cannot be said, as a technical matter, that

the Sowards opinion specifically addressed the question of

whether the Reservation was disestablished.” See State v.

Perank, slip op. at 38. The dissenting Justice maintains that

“the same observation holds true for White Rocks Irrigation Co.

lv. Mooseman, 45 Utah 79, 141 P. 459 (1914)]". See slip op.

at 44 (Zimmerman, J., dissenting). Thus, “the [State's]

implication . . . that [the Utah Supreme Court) has previously

ruled on the issue [of Reservation disestablishment and that the

federal courts had not granted the state court's ruling proper

deference) is simply incorrect.” id.

32

U.S. 473 (1984) and in DeCoteau v. District County

Court, 420 U.S. 425 (1975), and, in contrast to the

Utah Supreme Court, the lengths to which the South

Dakota Supreme Court went to justify why it

departed from prior and conflicting decisions of the

federal court on a reservation-boundary issue.

In the series of cases leading to this Court's

decision in DeCoteau, the South Dakota Supreme

Court issued its decision on the uniquely federal

question of the boundaries of the Lake Traverse

Reservation before the Eighth Circuit issued its

conflicting decision. See DeCoteay v. District

County Court, 211 N.W.2d 843 (S.D. 1973), aff'd,

420 U.S. 425 (1975); United States ex rel. Feather

v. Erickson, 489 F.2d 99 (8th Cir. 1973), rev’d sub

nom DeCoteau v. District County Court, 420 U.S.

425 (1975). Thus, unlike the Utah Supreme Court,

the South Dakota Supreme Court did not decide on

an issue of uniquely federal law in complete

disregard for a previous decision of the federal courts

on the same issue.

Similarly, in the series of cases leading to this

Court’s review of Solem, the South Dakota Supreme

Court did not presume, as did the Utah Supreme

33

Court, to issue a decision contrary to a previous

federal court decision on reservation boundaries

without legitimate, legal reasons for doing so.

Rather, each time that the South Dakota Supreme

Court issued a decision finding that the Cheyenne

River Reservation had been disestablished, this Court

had issued an intervening opinion that reasonably

called into question the prior and conflicting

decisions of the Eighth Circuit on the reservation-

boundary issue. Only on the basis of the intervening

decisions of this Court did the South Dakota

Supreme Court venture to decide the reservation-

boundary issue in conflict with a prior decision of the

Eighth Circuit. See Stankey v. Waddell, 256 N.W.2d

117, 119 (S.D. 1977) (finding that this Court’s

intervening decision in DeCoteay called into question

the analysis applied and result reached by the Eighth

Circuit in United States ex rel. Condon v. Erickson,

478 F.2d 684 (8th Cir. 1973)); State v. Janis, 317

N.W.2d 133, 137 (S.D. 1982) (relying on Stern &

Gressman, Supreme Court Practice, § 5.12 at 362

(5th ed.), to find that this Court’s summary dispo-

sition of United States v. Dupris, 612 F.2d 319 (8th

Cir. 1979), vacated and remanded, 446 U.S. 980

34

(1980), reasonably indicated that a majority of

Justices found the Eighth Circuit’s decision to be "so

clearly erroneous as to make oral argument a waste

of time,” and therefore, not binding on the State

court).

This Court has not issued any dis-

establishment decisions, much less one that casts

doubt upon the Tenth Circuit’s decision, since the

Tenth Circuit decided, and this Court denied the

State’s petition for writ of certiorari in, Ute Indian

Tribe.2*> Consequently, the Utah Supreme Court's

28 The State suggests that the Tentt. Circuit has criticized

its decision in Ute indian Tribe. See State’s Br. at 21-24.

Again, the State misreads a decision of the Tenth Circuit Pan

in Pittsbura & Midway Coal Mining Co. v. Yazzie, S

F.2d 1387, the Tenth Circuit distinguished the court's dicta

(quoted at State’s Br. at 16) regarding restoration language in

Ute Indian Tribe, saying:

language as extraneous because restoration

language was not the operative language of the

Statutes being construed lin Ute Indian Tribe),

unlike the situation now before us.

909 F.2d 1400 (emphasis added). Thus, rather than criticizing

Ute Indian Tribe, as suggested by the State, Yazzie reiterates

the Tenth Circuit's decision that the 1905, rather than the

1902, Indian Appropriations Act opened the Reservation, and

that the 1905 Act failed to evidence the requisite

(continued...)

35

conduct in issuing a decision that directly conflicts

with the federal courts’ resolution of the

Reservation-boundary issue can only be attributed to

a complete disregard for the principles of comity that

this Court has proclaimed apply in the Indian-law

context. £.¢., lowa Mutual Insurance Co. v.

LaPlante, 480 U.S. 9 (1987); National Farmers Union

Ins. Cos. v. Crow Tribe, 471 U.S. 895 (1985). This

Court should deny the petition for writ of certiorari,

thereby rejecting the State’s, and a majority of the

Utah Supreme Court’s, biatant disregard for

principles that are fundamental to the integrity of this

society’s judicial system.

B. Granting the Petition for Writ of Certiorari in

this Case Would Conflict with Judicial

Principles of Comity and Finality.

As the chronology set forth above reflects, in

issuing its decisions on reservation disestablishment,

the South Dakota Supreme Court was always

conscious that principles of comity required

deference to a federal court decision on the uniquely

26(.. continued)

Congressional intent to disestablish the Uintah Valley

Reservation. See 909 F.2d 1399-1400.

36

federal law issue of reservation disestablishment.

Only when an intervening decision of this Court

reasonably called into question a prior federal court

decision on the disestablishment issue, did the South

Dakota Supreme Court hazard to upset the federal

courts’ decision on the federal law issue.

By contrast, at the urging of the State, a

majority of the Utah Supreme Court displayed no

similar deference to principles of comity. See State

v. Perank, slip op. at 43 (Zimmerman, J.,

dissenting). Instead, without this Court having

issued any intervening "disestablishment” decisions,

and in full recognition that a majority of the entire

Tenth Circuit had applied prior “disestablishment”

precedent of this Court in reaching its decision in Ute

Indian Tribe, the Utah Supreme Court decided an

issue contrary to, and in complete disregard for, the

Tenth Circuit’s earlier decision on the identical, and

uniquely federal, issue of reservation disestablish-

ment.?°

2® in addition to chronology, there is a significant fact that

distinguishes the Solem and DeCoteay series of cases from the

instant proceedings. In none of the cases leading up to Solem

or DeCoteay had the State of South Dakota voluntarily

(continued...)

37

In asking the Utah Supreme Court to ignore

the previous decision of the Tenth Circuit resolving

the boundary issue, the State did not argue that the

Tenth Circuit’s decision contravened the laws or

policies of the State, see State v. Perank, slip op. at

44 (Zimmerman, J., dissenting), which is an

acceptable basis for not deferring to another court’s

resolution of an issue. Id. Rather, the State asked

the court to revisit the boundary issue "for the sole

purpose of creating a conflict with the federal courts

to force Supreme Court review.” Id. at 45. A

majority of the Utah Supreme Court’s acquiescence

to the State’s request “needlessly upsets a

26(.. continued)

intervened in # federal court action, filed by the affected tribe,

in which the sole issue litigated was whether reservation

boundaries had been disestablished, and, being dissatisfied

with the decision of the federal court, attempted to relitigate

the reservation-boundary issue in state court.

By contrast, in the instant proceedings, the State of

Utah voluntarily submitted to the jurisdiction of the federal

courts when it intervened in the Ute Indian Tribe litigation, and

therefore consented to being bound by the federal courts’

decision on the issue of disestablishment of the Uintah Valley

and Uncompahgre Reservations. Virtually immediately after the

federal court decided the issue against it, the State initiated

proceedings to upset the federal courts’ decision in its own

courts, without the participation of its principle adversary, the

Tribe, and in complete disregard for principles of comity and

federalism.

38

previously settled area of law and. . . encourages

litigants to forum shop in the hope of inconsistent

decisions, an ill comity seeks to avoid in the federal-

state context.” Ibid. If this Court were to acquiesce

to the State’s request that it review the Utah

Supreme Court’s decision on the Reservation-

boundary issue, the Court could find itself inundated

with reservation-boundary cases, a result that the

State appears to desire. See State’s Br. at 13-24

(suggesting this Court must determine, in each

instance, whether the particular act(s) opening a

certain reservation did or did not disestablish the

reservation).”’

This Court should uphold the doctrine of

comity and discourage parties from relitigating

previously settled issues, in the hope of obtaining

27 Between 1960 and 1990, there were at least 27

reported state and lower federal court decisions involving

reservation boundaries. This Court granted the writ of

certiorari to review five of those decisions. See Solem v.

Bartlett, 465 U.S. 473 (1986); Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977); DeCoteay v. District County Court, 420

U.S. 425 (1975); Mattz v. Ammett, 412 U.S. 481 (1973);

Seymour v. Superintendent, 368 U.S. 45 (1962). Under the

State’s theory, the Court would have had to accept every one

of the 27 cases before there would be any certainty as to the

boundaries of the affected reservations.

39

inconsistent decisions and "forcing" review by this

Court, by denying the writ of certiorari in this

action.”®

iil. | This Court Should Deny the Petition for Writ

of Certiorari Because the State Possesses, and

Has Always Possessed, Criminal Jurisdiction

Over Hagen Based on His [Non-Jindian Status

The Reservation boundaries are irrelevant to

the criminal jurisdiction issue in this case. The State

has always possessed criminal jurisdiction over

Robert Hagen because he is a non-indian for legal

purposes.” With limited exceptions not relevant to

2° To its credit, the Utah Supreme Court seems to have

retreated from its defiance of comity principles. On August 4,

1992, the court stayed the finality of its decision in State v.

Perank, pending the federal district court's determination on

the Tribe’s renewed motion for injunctive relief, which is based

on the relitigation exception of the Anti-injunction Act. By

Staying its decision, pending the outcome of the federal court

proceedings, the Utah Supreme Court has indicated a

willingness to defer to the federal courts on the issue of

whether, by its voluntary participation in the Ute Indian Tribe

litigation, the State is precluded from relitigating the

Reservation-boundary issue in state court.

Thus, rather than having “ominous” consequences, as

suggested by the State, see State’s Br.at 12, the Tribe's

having availed itself of an equitable remedy afforded by

Congress may have assisted in averting a clash between the

federal and state courts in Utah.

7° The Tribe does not dispute that Robert Hagen may be

Indian for ethnological purposes.

40

these proceedings, state courts have jurisdiction to

prosecute a non-indian for an offense committed in

Indian country where the victim is not Indian. See

New York ex rel, Ray v. Martin, 326 U.S. 496

(1946); United States v. McBratney, 104 U.S. 621

(1882).

The term "Indian" has been defined since

1934 as consisting of:

all persons of Indian descent who are

members of any recognized Indian tribe

now under Federal jurisdiction, and all

persons who are descendants of such

members who were, on June 1, 1934,

residing within the present boundaries

of any Indian reservation, and shall

further include all other persons of one-

half or more Indian blood.*”

25 U.S.C. § 479 (emphasis added). Those groups

that are not “recognized” by the United States,

pursuant to this definition, are not Indian tribes and

their members, accordingly, are not "Indian".*"

°° The Utah Court of Appeals found that Robert Hagen

possesses 5/16ths degree of Indian biood. See State v. Hagen,

802 P.2d at 747.

31 See Morton v. Mancari, 417 U.S. 535, 553 n. 24 (1974)

(recognizing federal criminal jurisdiction does not extend to

(continued...)

41

The federal government considers an "Indian"

to be only those persons who are, or who are

descended from, members of Indian tribal entities

that are “recognized” by the United States. See 25

U.S.C. § 450b(b) and (c) (defining Indian as a person

who is a member of an Indian tribe, and Indian tribe

as any tribe, band, nation or other organized group

or community . . . which is recognized as eligible for

the special programs and services provided by the

United States to Indians because of their status as

Indians).*2, As an example, the Bureau of Indian

3"(.. continued)

many persons who can be racially classified as “Indian");

United States v. Heath, 509 F.2d 16 (9th Cir. 1974) (finding

a member of the terminated Klamath Indian Nation not “Indian”

for purposes of federal criminal jurisdiction); St. Cloud v. United

States, 702 F.Supp. 1456, 1466 (D.S.D. 1988) (holding that

a member of the terminated Ponca tribe is not subject to

federal jurisdiction under the Major Crimes Act, 18 U.S.C. §§

1153, 3242). See also State v. Gardner, 827 P.2d 980 (Utah

App. 1992) (finding a terminated Ute, see 25 U.S.C. § 677a,

to be subject to state jurisdiction for an offense committed on

the Uintah and Ouray Reservation).

32 The “recognition” requirement, first established in the

Indian Reorganization Act and carried through in the Indian

Self-Determination Act, 25 U.S.C. §§ 450-450n, also applies

in numerous other Indian programs. E£.g., Indian Health Care

Act, 25 U.S.C. §§ 1601-1680; Indian Financing Act, 25 U.S.C.

§§ 1451-1543; Indian Child Welfare Act, 25 U.S.C. §§ 1901-

1923.

42

Affairs’ Courts of Indian Offenses, which serve as

indian courts on 22 reservations, follow this rule by

restricting their scope of criminal jurisdiction to “any

person of Indian descent who is a member of any

recognized Indian tribe now under Federal jurisdiction

". 25 C.F.R. § 11.2(c) (1991) (emphasis added).

in order to clarify which Indian entities are

"recognized" by the United States, the United States

Department of the Interior has published a list of

Indian groups recognized as having a_ special

relationship with the United States. See 51 Fed.

Reg. 25,115 (1986). The only persons eligible for

services administered by the Bureau of Indian

Affairs, and thus the only persons whom the BIA

considers to be "Indian", are those individuals who

are members of the identified Indian tribes.

Robert Hagen has not been adjudicated an

"Indian" for purposes of federal or state criminal

jurisdiction, and indeed could not and cannot be.*°

The trial court, in fact, found that the State

33 As noted, originally the United States attempted to

criminally prosecute Hagen. This prosecution was dismissed,

however, when the authorities discovered that Hagen was a

member of a “non-recognized” Indian tribe, thereby making him

a non-indian for purposes of federal criminal jurisdiction.

43

possessed jurisdiction over Hagen, regardless of the

situs of the offense, because he was not an Indian.

See T. 25, lines 12-13.

All parties to the proceedings acknowledge

that Hagen’s only Indian affiliation is as a member of

the Little Shell Band of Chippewa Indians. The Little

Shell Band of Chippewa Indians is not a federally

recognized Indian tribe. See 51 Fed. Reg. 25,115

(1986). Accordingly, neither Hagen nor the Little

Shell Band are eligible for services from the Bureau

of Indian Affairs nor are they recognized as satisfying

the requirements for being “Indian” for purposes of

federal civil or criminal statutes. See 25 U.S.C. §§

450b, 479, 1452(b), 1603 and 1903(3) and (8). As

a consequence, there never has been, and is not

now, any question that the State had criminal

jurisdiction to prosecute Hagen for proscribed

** While the Utah Court of Appeals reversed the trial court's

determination on the grounds that it had improperly allocated

the burden of proof and applied an improper standard of proof,

the court declined to expressly find Robert Hagen to be an

Indian. See State v. Hagen, 802 P.2d 745. Moreover,

although the State argued that “the central issue in this case

is whether [Robert Hagen] is an Indian", see Reply Brief of

Appellee at 2, State v. Hagen, No. 910017 (Utah filed Dec. 27

1991), the Utah Supreme Court failed to decide the issue.

44

conduct occurring within the boundaries of the

Reservation. United States v. McBratney, 104 U.S.

621; United States v. Rogers, 45 U.S. 567 (1845).

Therefore, the issue of the continued existence of

the Reservation is not germane to Hagen’s convic-

tion and is not a question that should be decided by

this Court on a writ of certiorari.*°

CONCLUSION

For the reasons stated above, this Court

should deny the petition for writ of certiorari, and

permit the Federal District Court for the District of

Utah to resolve the issues presented in this action.

%© it is the Tribe's position that Robert Hagen is not an

indian for jurisdictional purposes, and that the Court should

decline to review a case that jeopardizes the Tribe's

governmental authority when that review is not necessary or

called for. However, if the Court were to grant the writ of

certiorari, it should summarily vacate the decision of the Utah

Supreme Court, for the reason that a member of a tribe that is

not “federally recognized” is not an “Indian” for purposes of

criminal jurisdiction. Alternatively, the case should be

remanded for a determination by the trial court, applying the

proper standard and allocation of proof, on the claimed “Indian”

status of Robert Hagen.

45

Respectfully submitted,

Robert S. Thompson, Ill

Counsel of Record

Sandra Hansen

Jeanne S. Whiteing

Tod J. Smith

WHITEING & THOMPSON

1135 Pearl Street, Suite 203

Boulder, Colorado 80302

(303) 444-2549

Counsel for Amicus Curiae

Ute Indian Tribe

46

APPENDICES

APPENDIX A

la

OFFICE OF THE ATTORNEY GENERAL

STATE OF UTAH

PAUL VAN DAM

ATTORNEY GENERAL

November 10, 1992

Ms. Sandra Hansen

WHITEING & THOMPSON

Attorneys at Law

1136 Pearl Street, Suite 203

BOULDER < CO 80302

Re: Hagen v. Utah,

United States Supreme Court No. 92-6281

Dear Sandy:

Enclosed herewith is the consent letter you

requested in the above-entitied action.

Best regards.

Very truly yours,

/s/ MICHAEL M. QUEALY

Assistant Attorney General

Enclosure

MMQ/jr

2a

OFFICE OF THE ATTORNEY GENERAL

STATE OF UTAH

PAUL VAN DAM

ATTORNEY GENERAL

November 10, 1992

The Honorable William H. Rehnquist

Chief Justice

United States Supreme Court

1 First Street, N.E.

WASHINGTON, DC 20543

Re: Hagen v. State of Utah, U.S. Supreme

Court No. 92-6281, On Petition for Writ of

Certiorari

Dear Mr. Chief Justice:

Pursuant to Supreme Court Rule 37.2, this

letter will serve as written consent of Respondent

State of Utah to the filing of a brief amicus curiae by

the Ute Indian Tribe in the above-referenced action

throughout these proceedings, including the period

prior to this Court’s consideration of the Petition for

Writ of Certiorari.

Respectfully yours,

/s/ MICHAEL M. QUEALY

(Counsel of Record)

Assistant Utah Attorney General

MMQ/jr

3a

Joel D. Berrett

Attorney at Law

58 East 100 North

P.O. Box 262

Roosevelt, Utah 84066

November 3, 1992

Sandy Hansen

1136 Pearl Street, Suite 203

Boulder, Colorado 80302

RE: Hagen v. Utah

Dear Sandy:

Enclosed herewith please find the consent letter

which | have signed allowing you to file Amicus

Curiae Briefs in the above matter. If you have any

questions, please contact me.

Yours very truly,

/s/ Joel D. Berrett

Joel D. Berrett

Attorney at Law

Enclosure

4a

The Honorable William H. Rehnquist

Chief Justice

United States Supreme Court

One First, N.E.

Washington, D.C. 20543

Re: State v. Hagen, No. 92-6281, On Petition

for Writ of Certiorari to the Supreme Court

of Utah

Dear Mr. Chief Justice:

Pursuant to Supreme Court Rule 36.1, this

letter serves as petitioner Robert P. Hagen’s written

consent to the Ute Indian Tribe filing a brief amicus

curiae in the above-captioned action throughout

these proceedings, including the period prior to this

Court’s consideration of the petition for writ of

Sincerely,

/s/ Joel Berrett

Joel D. Berrett

Counsel of Record for Petitioner

Post Office Box 262

Roosevelt, Utah 84066

(801) 722-3606

APPENDIX B

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6a

This matter came before the Court on the

Motion of the Ute Indian Tribe for a Temporary

Restraining Order or Preliminary Injunction. All

parties to the proceeding received copies of the

Tribe’s pleadings in advance of a hearing held on

Monday, August 3, 1992 at 3:30 p.m. and were

represented by legal counsel at the hearing.

At the Court’s request, attorneys for the Tribe had

spoken with the State Attorney General's office prior

to the hearing for the purpose of determining

whether the parties could reach an agreement on the

issue presented to this Court by the Tribe’s motion

for a preliminary injunction. A stipulation was

reached, whereby the State agreed, on behalf of

itself and its political subdivisions, to refrain from

enforcing the Utah Supreme Court’s decision in State

v. Perank, No. 860243 (Utah July 17, 1992); from

exercising civil or criminal jurisdiction in a manner

that conflicts with federal law within the exterior

boundaries of the Uintah and Ouray Reservation, as

those boundaries were set forth by the Tenth Circuit

Court of Appeals in Ute Indian Tribe v. Utah, 773

F.2d 1087 (10th Cir. 1985) (en banc), cert. denied,

479 U.S. 994 (1986); or from interfering, in any

7a

way, with the Tribe’s exercise of criminal, civil and

regulatory jurisdiction, consistent with federal and

tribal law, within the exterior boundaries of the

Uintah and Ouray Reservation, as those boundaries

were set forth by the Tenth Circuit Court of Appeals

in Ute Indian Tribe, supra.

Counsel for the State and for the Tribe stated,

for the record, their respective understandings of the

agreement, which had not yet then been

memorialized. No objection to the agreement was

lodged by counsel for the political subdivisions or

amicus curiae United States.

The Court hereby incorporates by reference

the attached stipulation between the State of Utah,

County of Duchesne, County of Uintah, City of

Roosevelt, City of Duchesne and Ute Indian Tribe of

the Uintah and Ouray Reservation, Utah, and hereby

ORDERS that the parties shall comply with the

provisions of said stipulation until this Court issues

its decision on the merits of the Tribe’s Renewed

Motion for injunctive Relief or until such other date

as is fixed by agreement between the parties or by

order of this Court.

Dated this 2nd day of September, 1992, nunc

pro tune August 3, 1992.

Ls/_

Bruce S. Jenkins, Chief Judge

United States District Court

District of Utah

STIPULATION

This stipulation is made this 3ist day of

August, 1992, by and between the State of Utah

[hereafter, "the State”], the County of Duchesne, the

County of Uinta, the City of Roosevelt, the City of

Duchesne [hereafter collectively referred to as "the

local defendants") and the Ute Indian Tribe of the

Uintah and Ouray Reservation, Utah [hereafter, "the

Tribe”), through the parties’ legal counsel.

The Utah Supreme Court’s decision in State v.

Perank, No. 860243 (July 17, 1992) conflicts with

the decision of the Tenth Circuit Court of Appeals in

Ute Indian Tribe v. Utah, 773 F.2d (10th Cir. 1985)

(en banc), cert. denied, U.S. (1986) insofar as each

decision purports to set forth the boundaries of the

Uintah Valley Reservation (now a part of the Uintah

and Ouray Reservation). In order to avoid potential

chaos and avoid jurisdictional uncertainty in the

Uintah Basin, the State, local defendants and Tribe

enter into the following stipulation.

1. The State, local defendants, their

officers, agents, employees and any person acting in

their behalf shall refrain from enforcing the Utah

10a

Supreme Court’s decision in State v. Perank, No.

8602433 (Utah July 17, 1992), and shall refrain

from exercising criminal jurisdiction over Indians who

are members of the Ute Indian Tribe or any other

federally recognized Indian Tribe or civil jurisdiction

over actions involving the Ute Indian Tribe or

members of the Ute Indian Tribe, or interfering, in

any way, with the Tribe’s exercise of such civil or

criminal jurisdiction within the exterior boundaries of

the Uintah and Ouray Reservation, Utah, as those

boundaries were set forth by the Tenth Circuit Court

of Appeals in Ute Indian Tribe v. Utah, 773 F.2d 10

(10th Cir. 1985) (en banc), cert. denied, U.S.

(1986).

2. The Tribe shall exercise criminal

jurisdiction over Indians who are members of the Ute

Indian Tribe or any other federally recognized Indian

Tribe and shall exercise civil and regulatory

jurisdiction over Indians and non-indians to the

extent permitted by federal and tribal law within the

exterior boundaries of the Uintah and Ouray

Reservation, Utah, as those boundaries were set

forth by the Tenth Circuit Court of Appeals in Ute

Indian Tribe v. Utah, 773 F.2d 10 (10th Cir. 1985)

11a

(en banc), cert. denied, U.S. (1986).

3. This stipulation shall expire on the date

immediately following the date on which the Federal

District Court for the District of Utah issues its

decision on the Tribe’s Renewed Motion for

injunctive Relief in Civil No. C-75-408 unless further

extended in writing by the parties or by order of the

Federal District Court for the District of Utah.

4. Nothing contained herein shall prejudice

or be deemed a waiver of the claims or defenses of

any party to this stipulation.

_/s/ tsi

Paul Van Dam Robert S. Thompson, Ill

Attorney General General Counsel

State of Utah Ute Indian Tribe

Ls/__ _ls/_

Harry Souvall, Attorney Herbert Gillespie, Attorney

Uinta County, Utah Duchesne County, Utah

/s/__ si

Craig Bunnell, Attorney Paul Uresk, Attorney

City of Roosevelt City of Duchsene

APPENDIX C

12a

IN THE SUPREME COURT OF THE STATE OF

UTAH

-----00000-----

Regular May Term, 1992 August 4, 1992

State of Utah, No. 860243

Plaintiff and Appellee,

Vv.

Clinton Perank,

Defendant and Appellant

MINUTE ENTRY

The Court being fully advised in the premises

grants the motion of the State and orders that the

issuance of the remittitur be stayed and that the

finality of the judgment of the Court also be stayed

pending (1) the conclusion of any proceedings on

certiorari to the United States Supreme Court and (2)

the final disposition of the injunctive proceeding

pending in the United States District Court for the

District of Utah.

13a

Joel D. Berrett

Attorney for Defendant

P.O. Box 262

Roosevelt, Utah 84066

(801) 722-3606

IN THE SUPREME COURT OF THE STATE OF

UTAH

STATE OF UTAH, :

Plaintiff-Appellee, : ORDER TO STAY

REMITTITUR

VS.

ROBERT P. HAGEN,

Defendant-Appellant.

Based upon the motion of the defendant and

good cause, the remittitur is stayed for 90 days

pending defendant’s decision whether to file a

petition for a writ of certiorari in the United States

Supreme Court.

DATED this 18th day of Aug., 1992.

FOR THE COURT:

/s/_ Gordon R. Hall

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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