Reply Brief — Utah v. Ute Indian Tribe

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No. 85-1821

IN THE

Supreme Court of the Anite

OCTOBER TERM, 1985

JOM 13 199g:

State Or UTAH, DUCHESNE County, UTaH, UmntaH County, UTAH,

ROOSEVELT City and DUCHESNE City, UTAH

Petitioners,

Ute INDIAN TRIBE,

Respondent.

On Petition For A Writ of Certiorari To The United

States Court of Appeals For The Tenth Circuit

REPLY BRIEF

Davip L. WILKINSON

Utah Attorney General

DALLIN W. JENSEN

Solicitor General

MICHAEL M. QUEALY

R. DouGLas CREDILLE

Assistants Attorney General

1636 West North Temple

Suite 300

Salt Lake City, Utah 84116

(801) 583-4446

Attorneys for the State of

Utah

A. RAYMOND RANDOLPH

Counsel of Record

Special Assistant

Attorney General for the

State of Utah

RANDOLPH & TRUITT

1752 N Street, N.W.

Suite 801

Washington, D.C. 20036

(202) 785-8100

Tom D. Tosin

Tobin Law Offices, P.C.

422 Main Street

Winner, South Dakota 57580

(605) 842-2500

DENNIS L. DRANEY

Duchesne County Attorney

Roosevelt City Attorney

P.O. Box 206

Duchesne, Utah 84021

Mark W. NAsH

Uintah County Attorney

State and County Building

Vernal, Utah 84078

ROLAND URESK

Duchesne City Attorney

Roosevelt, Utah 84066

Attorneys for the County

and City Petitioners

PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203

‘Stat ‘en JR.

CONCLUSION

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CASES: Page

Affiliated Ute Citizens v. United States, 406 U.S. 128

(SB TED neces cxecnsvieosieonsidcalanaeeeanneakamnirniaiadas 2, 3, 6

Andrus v. Utah, 446 U.S. 500 (1980) — ......... ee eeeeeeee 3

DeCouteau v. District County Court, 416 U.S. 966

CEDTO) | ncreiceconicnsiiaiaenaanaiemmabagaas 1

Mattz v. Arnett, 409 U.S. 819 (1972) ...........eeeeeeees 1

Oregon Department of Fish & Wildlife v. Klamath

Indian Tribe, __U.S.__,, 105 S.Ct. 3420

CRUD wcsssvsssnsscensetieemmmmascebaieauesameas aaa 3

Rosebud Sioux Tribe v. Kneip, 423 U.S. 1047

CRTED vanicsnsssseessiesinscelaaeaiialaniabiianielin 1

Seymour v. Superintendent, 368 U.S. 351 (1962) 1

Solem v. Bartlett, 460 U.S. 1035 (1983) _ ............... 1

Solem v. Bartlett, 465 U.S. 463 (1984) .................. 3, 4, 6

Uintah and White River Bands of Ute Indians v.

United States, 1389 Ct. Cl. 1 (1957) ................04. 6, 7

Ute Indian Tribe of the Uintah and Ouray Reser-

vation v. United States, 14 Ind. Cl. Comm. 707

(ROTI xnicsnsnnsscinciossinbieaannciacdectaataaaiianianne tees 3

STATUTES:

USC: OO sia ee ee 1

Oe TE. OA AITO | aeccccinciccsin a aes 2

OO Vas. Ol6, Ee cic 4

46 Stat. 1092, Act of Feb. 13, 1931 ...........eeeeee 6

CONGRESSIONAL MATERIAL:

S. Rep. No. 1632, 83d Cong., 2d Sess. (1954) ..... 1

Hearings on S. 3532 and H.R. 9398, 83d Cong., 2d

: TA -ckccialbenenetenss 1

1. In light of the Tribe’s response, Petitioners sug-

gest that it may be appropriate for the Court to invite

_the United States to express its views in this case.

Since Seymour, the Court has issued such orders prior

to granting certiorari in each of the reservation

boundary cases it has decided.’

The court below held that the Tribe’s original 4-

million acre reservation had not been diminished to

a 1-million acre reservation as Petitioners had ar-

gued.? But in 1954, the Ute Indian Tribe of the Uintah

and Ouray Reservation*—the Respondent here—stated

in congressional hearings that its reservation only

“embraces an area of some 1,065,000 acres... .’’* Re-

lying on that representation,’ Congress enacted the

1 See the Orders in Solem v. Bartlett, 460 U.S. 1035 (1983);

Rosebud Sioux Tribe v. Kneip, 423 U.S. 1047 (1976); DeCouteau

v. District County Court, 416 U.S. 966 (1974); Mattz v. Arnett,

409 U.S. 819 (1972); Seymour v. Superintendent, 368 U.S. 351,

352 (1962).

2 The original Uncompahgre and Uintah reservations, which

the court of appeals held still exist undiminished, contained ap-

proximately 4 million acres. Pet. 2. What had been considered

the Tribe’s reservation until this case comprised approximately

1 million acres of trust lands. Pet. 5.

’ The Tribe’s reservation today, whatever its exterior bound-

aries may be, is called the ‘Uintah and Ouray Reservation” and

the respondent Tribe is officially designated the “Ute Indian

Tribe of the Uintah and Ouray Reservation” (e.g. 25 U.S.C.

§ 671). See Pet. App. 118a-114a.

‘ Hearings on S. 3532 and H.R. 9398 before the Subcommittee

of the Senate Committee on Interior and Insular Affairs, 83d

Cong., 2d Sess. 5 (June 9, 1954) (unpublished) (testimony of the

Chairman of the Tribe’s Business Committee). See note 8 infra.

5 See S. Rep. No. 1632, 83d Cong., 2d Sess. 6 (1954), which

was part of the record in this case (L.D. 193).

Ute Partition Act (68 Stat. 868, as amended, 25

U.S.C. §§ 677-677aa), dividing the Tribe’s assets be-

tween its full-blood and mixed-blood members.

When a case involving the Ute Partition Act

reached this Court, the United States also took the

position, consistent with the Tribe’s submission to

Congress but contrary to the decision here, that the

Tribe’s reservation consisted of trust lands*—some 1

million acres.’ As the Petition points out (at p.9), this

Court relied on the representations of the Tribe® and

the United States and stated in Affiliated Ute Citizens

v. United States, 406 U.S. 128, 141 (1972), that “There

is, and can be, no dispute that the United States holds

title to the land, including mineral interests, consti-

tuting the Uintah and Ouray Reservation.”’ 406 U.S.

at 141. The Court’s statement is, as the Petition fur-

ther indicated, directly contradicted by the decision

below.

Thus, prior to the instant case, this Court, the

United States and the Tribe itself had taken the po-

sition that the Ute Tribe’s reservation consisted of 1

million acres, not the 4 million acres encompassed

within the boundaries of the original Uncompahgre

and Uintah reservations, as the court below held. But

the Tribe, in opposing certiorari, says not a word

6 See Brief for the United States and Brief for the Securities

and Exchange Commission as Amicus Curiae in Reyos, at p.28,

No.70-78, October Term 1971, in Affiliated Ute Citizens v. United

States, 406 U.S. 128 (1972).

7 See note 2 supra.

®The Hearings (note 4 supra) were part of the record in

Affiliated Ute Citizens. See Brief for the United States, note 6

supra, at p.33 n.28.

about Affiliated Ute Citizens v. United States. It fails

to confront the federal government’s representations

to this Court in Andrus v. Utah, 446 U.S. 500 (1980),

that the original Uncompaghre reservation does not

exist and has not existed since 1897. See Pet. 9; Pet.

App. 366a-369a. And it does not, indeed cannot, ex-

plain why—if the decision below is correct—the Tribe

was entitled to recover damages, as it did, against

the United States in 1965 on the basis of its claim

that the Uncompahgre Band of Utes “have lost the

reservation set aside for their use,’ that the federal

government “refused to provide any reservation for

said Indians,” and that the government did not main-

tain the original ‘‘Uncompahgre Reservation in Utah

as a reservation.”® See Pet. 10-11 n.22; Oregon Dep’t

of Fish & Wildlife v. Klamath Indian Tribe, __ U.S.

—, 105 S.Ct. 3420, 3432 (1985).

Petitioners therefore respectfully suggest that the

Court may wish to invite the United States to file a

brief expressing its view in this case.

2. The Tribe does not question that at least 18,000

non-Indians live in the disputed area while the total

membership of the Tribe is only 1,500. See Pet. 10.

The Tribe says, however, that one area—the disputed

® See the Tribe’s Petition, at p.7, in Ute Indian Tribe of the

Uintah and Ouray Reservation v. United States, No. 349, 14

Ind. Cl. Comm. 707 (1965).

10 The Tribe also says that Petitioners have attempted to ‘“‘re-

shape” the decision below.“‘from a decision that addresses land

status to one that impacts people.” Brief in Opp., at 3. One of

the fundamental errors of the court of appeals is that it never

considered the impact on people, which it was required to do.

See Solem v. Bartlett, 465 U.S. 463, 471-72 & n.12 (1984), and

the Petition in this case, at p.21.

portion of the original Uncompaghre reservation—is

thinly populated. Brief in Opp., at 3. What the Tribe

does not explain is why this area, which has not been

treated as a reservation since 1897, should now be

deemed such when there is no evidence that even a

single tribal member lives there, when there is not

even one acre of Indian land there", when in the

words of Solem the area “has long since lost its In-

dian character’”’ (465 U.S. at 471).

On the other hand, it is not true that this area

plays no “significant role in the lives of the non-

Indian residents of the Unita Basin’’ (Brief in Opp.,

at p.3). The record lends no support to such an as-

sertion and, to the contrary, shows that the area con-

tains major mining and other industrial interests,

including those involving gilsonite. See Pet. App. 22a-

23a; Joint Ex. 479; and Appendix C & D, to the Supp.

Brief filed by Petitioners Counties and Cities in the

court below. The area, moreover, is also part of the

Vernal Grazing District established pursuant to the

Taylor Grazing Act, 48 U.S.C. 315, et seqg.2 Yet if,

as the court below held, the area should now be con-

sidered an Indian reservation, all grazing permits

would have to be cancelled. The Taylor Grazing Act

specifically provides that the Secretary of the Interior

may not establish grazing districts in ‘Indian reser-

vations.” 43 U.S.C. § 315.

This is a matter of major significance. Indeed, when

Congress extended the Tribe’s reservation in 1948 to

11 See the map lodged with this Court (Pet. 2 n.1) (Ex. I-1B).

The map shows that there are substantial amounts of State and

private lands within this area.

12 See the map lodged with the Court (Pet. 2 n.1), which de-

picts the “District Boundary”’ in gray lines.

encompass part of the former Uncompahgre reser-

vation—the ‘Hill Creek Extension’’"—it carefully

“reserved ... for the benefit of and use of grazing

district permittees, a free right-of-way for trailing and

watering purposes” through the newly-added portion

of the reservation to the area in dispute here. (Pet.

App. 362a). Under the decision below, however, those

“stock driveways” (Pet. App. 362a) will no longer

lead to Taylor Grazing Act areas, but to an Indian

reservation where grazing permits will not be valid

despite the absence of any Indian presence in the

region.

8. The Tribe contends that the ‘‘public domain”

language in the 1894 Act (Uncompahgre) and the 1902

Act (Uintah) had no effect because two later stat-

utes—the 1897 Act (Uncompahgre) and the 1905 Act

(Uintah)—were the operative legislation and these

contained no such language (Brief in Opp., at 14-15).

Not even the court below adopted this argument with

respect to the original Uncompahgre reservation. As-

suming the restored-to-the-public domain provision of

the 1894 Act was implemented by the 1897 Act,® the

18 See Pet. 4-5 & n.11. The reservation status of the Hill Creek

Extension is not at issue.

4 This is a further reason why the United States should be

called upon to express its views in this case. The issuance of

Taylor Grazing Act permits by the Department of the Interior,

which it has been doing for more than 40 years (Pet. App. 362a),

is flatly inconsistent with the decision of the court below that

the area is part of an Indian reservation.

16 There has never been any doubt on this score. The United

States, for example, answered the Tribe’s petition in the Indian

Claims Commission (see note 9 supra) by stating that with re-

spect to the original Uncompahgre reservation—which the Tribe

court’s point instead was that Solem v. Bartlett, su-

pra, altered the settled rule that such language con-

stituted a clear and unequivocal expression of

disestablishment. See Pet. App. 1la-12a. As discussed

in the Petition, it is on that point that en banc ma-

jority erred and rendered a decision in conflict with

the decisions of this Court and the lower federal

courts. See Pet. 14-21.'*

4. The Tribe’s remaining argument appears to be

that because the Tribe was compensated for lands

within the original Uintah reservation that, in 1905,

were reserved for a national forest,!” this shows that

the reservation was not disestablished. Brief in Opp.,

at 18. To the contrary, it shows instead that the

reservation ceased to exist.

The Tribe was compensated twice for the 1 million

acres that is now a national forest, first pursuant to

the Act of February 13, 1931, 46 Stat. 1092, in the

itself alleged had been disestablished—the Tribe ‘“‘suffered no

loss by the restoration to the public domain . . . of the unallotted

lands within the area. ...” Answer of the United States, at

p.17 (March 9, 1954), in Ute Indian Tribe of the Uintah and

Ouray Reservation v. United States, note 9 supra.

16 In regard to the original Uintah reservation, the legislative

history clearly shows, as the Petition discusses (Pet. 25-27), that

the 1905 Act implemented the 1902 Act. The Tribe has no re-

sponse. Moreover, the Court of Claims—accepting the Tribe’s

arguments—held that the 1905 Act implemented the 1902 Act

and that pursuant to the 1902 Act allotments were made to

tribal members ‘“‘and surplus lands (with the exception of forest

reserve and reclamation withdrawals and certain minimal en-

tries) were restored to the public domain. .. .”’ Uintah and White

River Bands of Ute Indians v. United States, 139 Ct. Cl. 1, 22

(1957).

17 See Pet., at 28-29.

amount of $1.2 million. Dissatisfied with that pay-

ment, the Tribe sued the United States in the Court

of Claims and—again contradicting the decision below

and its position here—claimed “‘just compensation for

973,777 acres of the former Uintah Indian Reserva-

tion in Utah, taken by the United States on July 14,

1905, by incorporation into the Uintah National For-

est.”” Uintah and White River Bands of Ute Indians

v. United States, supra, 139 Ct. Cl. at 2-5 (emphasis

added). The Court of Claims in that case awarded the

Tribe an additional $879,000 plus interest from 1905

on the basis, in part, that the area had formerly been

part of the Tribe’s reservation; indeed, throughout its

findings of fact, the Court of Claims referred to the

“former Uintah Indian Reservation” (e.g. 189 Ct. Cl.

at 28, 56, 64, 69, 70).

Thus, although “[tJhere is, and can be, no dispute’’®

that the Tribe’s reservation consists only of trust

lands, the court below ruled to the contrary and in

doing so has rendered a decision warranting review

by this Court.

CONCLUSION

For the foregoing reasons and the reasons stated

in the Petition, the petition for a writ of certiorari

should be granted. In addition, it may be appropriate

for the Court to invite the United States to express

its views in this case.

184 ffiliated Ute Citizens v. United States, supra, 406 U.S. at

141.

DAVID L. WILKINSON