Amicus Curiae Brief — Hagen v. Utah
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‘\ | Supreme Court, US. TO ™
G FILED
NOV 18 1692
' Tue : \
No. 92-6281 OFFICE OF THE CLiRK |
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1992
A ee
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
:
:
:
\
;
:
;
3
;
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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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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.