# Petition for Writ of Certiorari — Duchesne County v. Ute Indian Tribe of the Uintah & Ouray Reservation

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1107

## Text

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99-570 sep 29 1997

No.
ee Oe

In THE
Supreme Court of the United States

OCTOBER TERM, 1996

DUCHESNE COUNTY, a political
subdivision of the State of Utah,
UINTAH COUNTY, a political
subdivision of the State of Utah,

. Petitioners,

UTE INDIAN TRIBE, of the
Uintah and Ouray Reservation, Utah,
a federally recognized tribe of Indians,
Respondent.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

HERBERT WM. GILLESPIE Tom D. ToBIN
Duchesne County Attorney TOBIN LAW OFFICES, P.C.

500 East 100 South P.O. Box 730

P.O. Box 206 422 Main Street

Duchesne, UT 84021 Winner, South Dakota 57580
(435) 738-2435 (605) 842-2500

JOANN B. STRINGHAM Counsel of Record

Uintah County Attorney

152 East 100 North

Vernal, UT 84078
(435) 781-5436

WILSON - Epes Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the decision of this Court in Hagen v. Utah,
510 U.S. 399 (1994) has been misconstrued to preserve
historic reservation boundaries in Utah that encompass
hundreds of thousands of acres of fee lands, contrary to:

(i) Twenty years of express representations by the par-
ties and amici in the Ute Indian Tribe and Hagen litigation,
which conceded that the reservation would consist of only
trust lands if the public domain language of the acts was
implemented (as this Court held in Hagen), and

(ii) Thirty-five years of express representations by the
parties and amici in all other related litigation, which sim-
ilarly conceded that other affected reservation areas would
also consist of only trust lands if the reservation areas were,
in fact, diminished, as this Court recognized in Hagen. Sey-
mour, Mattz, DeCoteau, Rosebud, Solem, and Hagen, and

(iii) Any practical consideration when Respondent Tribe
has conceded that implementation will be completely un-
workable and unprecedented (“jurisdictional chaos”), and

(iv) Any consideration of comity because an injunction
will be said to preclude the Supreme Court of the State of
Utah (and the parties and all others) from expressing their
views On Hagen, in spite of the fact that the Utah Supreme
Court was affirmed in Hagen.

2. Whether the precedential scope of the decision of
this Court in Hagen v. Utah, 510 U.S. 399 (1994), has
been improperly restricted on “finality” principles by the
court of appeals, which summarily precluded any further
consideration, in light of Hagen, of the status of the origi-
nal Uncompahgre reservation and the national forest,
which were issues in pari materia in the Ute Indian Tribe
litigation:

(i) When the district court expressly stated that it did
“not reach any question” regarding the status of these
areas, “[t]hese questions await another day,” and

(ii) When the United States specifically conceded that,
in its view, the historic Uncompahgre reservation no longer
exists (and it is no longer inhabited by any tribal member),
and when an injunction precludes comity considerations.

(i)

ii

LIST OF PARTIES

Petitioners are Duchesne County, Utah and Uintah
County, Utah, political subdivisions of the State of Utah.
They were defendants in the original action.

Respondent Ute Indian Tribe of the Uintah and Ouray
Reservation, is a federally recognized tribe of Indians.
It was the plaintiff in the original action.

The State of Utah appeared as a defendant in the orig-
inal action and Roosevelt City, Utah, and the City of
Duchesne, Utah, municipal corporations, appeared as de-
fendants in the original action.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ..............0.......cccccccoccecooscece.--e i
LETS Ea ee ii
TABLE OF AUTHORITIBS. .....c...cececccccccccccececcocssecccuse-cos-s Vv
i 1
JURISDICTIONAL STATEMENT ................... 1
CONSTITUTIONAL AND STATUTORY PROVI-
ee a 1
Piast OF Tae CASE ...................................... 1
SEES Ee a ae a 1
3k. Poeaemal District Court .......................................... 3
ELL 7

REASONS FOR GRANTING THE WRIT OF CER-
CRISES Sie Se eC ae ee 9

I. THE DECISION OF THIS COURT IN HAGEN
HAS BEEN MISCONSTRUED TO PRESERVE
HISTORIC RESERVATION BOUNDARIES
CONTRARY TO SUBMISSIONS IN HAGEN
AND CONTRARY TO RELATED PRECE-
vans OF ture COURT ................................... 9

A. The Post-Hagen Argument Removes From
Indian Country Status Only Those Lands
Ceded, Restored to the Public Domain, or
Otherwise Directly Affected, Leaving His-
toric Reservation Boundaries Intact ............. 9

B. Respondent Ute Tribe Has Conceded That
Implementation of the Holding of the Tenth
Circuit Will Be Completely Unworkable and
EE ea 10

iv

TABLE OF CONTENTS—Continued

Page
C. The Misreading of the Hagen Opinion Has
Far Reaching Consequences ...................-...-.--- 14
D. This Court’s Opinion in Hagen Does Net
Support the Post-Hagen Argument ................ 20
E. Specific Hagen Submissions Clarify the
Trust/Fee Jurisdictional Distinction and
Undermine the Post-Hagen Argument ........... 22
| REE SR ORC Ce SUT Ie eA Sa See 30
APPENDIX
Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir.
SE satiictcitistccaeidininmpaipiinicidaiaoetin tet pada sete la
Ute Indian Tribe v. Utah, 935 F.Supp. 1473 (D.
FU SRI sich aivisesinicensieeensclipestpanigaatsiiia abilities tei 37a
Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir.
1997), reh’g denied, unpublished order (July 1,
OP secteciaonsichtnin lla ea clita i acs cin ate al 158a
Act of May 27, 1902, ch. 888, 32 Stat. 245 0.0... 160a

Act of March 3, 1095, ch. 1479, 33 Stat. 1048 ._........ 16la

Oa tar a Sree ener Dee Cee

Vv

TABLE OF AUTHORITIES

CASES: Page

DeCoteau v. District County Court, 420 U.S. 425
BRR POR FLT) BAS ANS Ss OC ee ee, passim
Gardner v. United States, No. 93-4102 (10th Cir.
May 5, 1994) (unpublished order and judg-

| ERC Ow nM Fy ae: eee ok Se 2
Hagen v. Utah, 510 U.S. 899 (1994) ...0000 passim
Hagen v. Utah, 511 U.S. 1047 (1994) ..00 4
Mattz v. Arnett, 412 U.S. 481 (1973) ........... 6, 9

Pittsburg & Midway Coal Mining Co. v. Yazzie,
909 F.2d 1387 (10th Cir. 1990), cert. denied,
TAs I MD yinsiestincintsnncsseccerteticedsinddinalntuincs 8, 18, 22
Red Lake Band of Chippewa Indians v. Minnesota,
614 F.2d 1161 (8th Cir. 1980) (per curiam)

cert. denied 449 U.S. 905 (1980) .......0....0.. 19
Rosebud Sioux Tribe v. Kneip, 480 U.S. 584

CRI TE sdiicsiinhicmeceGmmaeenenien meee. 6. 9, 12, 19, 30
Seymour v. Superintendent, 368 U.S. 851 (11 °2).... 6,9
Solem v, Bartlett, 465 U.S. 463 (1984) 00... 6, 9, 28
State v. Hagen, 858 P.2d 925 (Utah 1992) _.... 2, 3, 22, 23
State v. Perank, 858 P.2d 927 (Utah 1992)... passim

United States ex rel. Cook v. Parkinson, 525 P.2d
120 (8th Cir. 1975) cert. denied 480 U.S. 982

CRED siditccinicthteiinitndmcdubidiedactee Lt 19
United States v. Cuch, 79 F.3d 987 (10th Cir.

1996) cert. denied, 117 S.Ct. 384 (1996) ........... 2
United States v. Duncan, 857 F.Supp. 852 (D.

pt tS IRA SIRT OC GR As ©, CE RP 2
United States v. Pelican, 232 U.S. 442 (1914)........ 13

Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir.

1985) cert. denied, 479 U.S. 994 (1986) ....2, 8, 14, 22, 28
Ute Indian Tribe v. Utah, 935 F.Supp. 1473 (D.

SE lb d ihisinicichcnuteet pant tate tt) passim
Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th

Cir. 1997) reh’g denied, unpublished order (July

RE Bee Me bee eee ee ROFL Ce Hod Oe awa TEREST Pe passim
Ute Indian Tribe v. Utah, No. 75-CV-408-J (D.

Utah Sept. 15, 1997) (Order vacating injunction

05 Oh I Pei 2

vi

TABLE OF AUTHORITIES—Continued

Page
Yankton Sioux Tribe v. Southern Missouri Waste
Mgmt., 99 F.3d 1489 (8th Cir. 1996), cert.
granted sub nom. South Dakota v. Yankton
Sioux Tribe, 65 U.S.L.W. 3814 (U.S. June 10,
Ee Ss SEED cicinceinidcrnscccsinvcciveinaticiassndgellibiaes 19, 30
STATUTES:
Act of May 27, 1902, ch. 888, 32 Stat. 245 ........._.. 1, 25, 27
Act of March 8, 1905, ch. 1479, 33 Stat. 1048 ......_... 1, 25, 27
poy RR Ea OMe 7) EO 5, 10, 12
is cncinicinacgaisegicll badenknanemicoaedoataial 27
Be NED aise isicivinxnisacemnetiasbilehoncbleibeeate 1
I IN ndiseathidimsciiintidainsctibinaiabadiaide 7
RT ERE aN RL oF ere cee nO 3

OTHER AUTHORITIES:

Minutes of Councils Held by James McLaughlin,

U.S. Indian Inspector, with the Uintah and

White River Ute Indians at Uintah Agency,

Utah, From May 18 to May 23, 1903 0.000000... 16, 21
Brief for the United States as Amicus Curiae,

Utah v. Ute Indian Tribe, 773 F.2d 1087 (10th

Cir. 1985), cert. denied, 479 U.S. 994 (1986)

fs : RE EER LR UES WEEN ee 3
Memorandum in Support of Renewed Motion for

Injunctive Relief, Ute Indian Tribe v. Utah (D.

Utah July 31, 1992) (No. C-75-408-J) ..000000.. 23
Tribe’s Brief in Support of Permanent Injunction,

Ute Indian Tribe v. Utah (D. Utah Sept. 24,

pe eT | Ee, SO ee 23
Tribe’s Reply Brief in Support of Permanent In-

junction, Ute Indian Tribe v. Utah (D. Utah

Dec. 10, 1992) (No. C-75-408-J) -20..00000. ee. 24
United States’ Memorandum as Amicus Curiae in

Support of Ute Indian Tribe’s Motion for Injunc-

tive Relief, Ute Indian Tribe v. Utah (D. Utah

Nov. 28, 1992) (No. C-75-408-J) 0.000. 8, 24
Brief of Petitioner, Hagen v. Utah, 510 U.S. 399

CR Cees GIP GIED serssciicinsnectsieetioeeie 29

vii

TABLE OF AUTHORITIES—Continued

Brief for the United States as Amicus Curiae,
Hagen v. Utah, 510 U.S. 399 (1994) (No. 92-
SE ee EPL ERR Cet TN An

Brief for the United States as Amicus Curiae
Supporting Petitioner, Hagen v. Utah, 510 U.S.
CRD CUNO TEED ccccseccoseccermstecsctenscccenevece

Brief of Amicus Curiae Ute Indian Tribe in Sup-
port of Petition for Rehearing, Hagen v. Utah,
510 U.S. 399 (1994) (No. 92-6281) 0.000000...

Motion of Ute Indian Tribe to Intervene as a
Matter of Right, Hagen v. Utah, 510 U.S. 399
«. §: % |. eR eee ‘

Brief of Amicus Curiae Ute Indian Tribe in Op-
position to Granting the Writ of Certiorari,
Hagen v. Utah, 510 U.S. 399 (1994) (No. 92-
REIT On SE sve nee en we ee eee

Brief of Amicus Curiae Ute Indian Tribe, Hagen
v. Utah, 510 U.S. 399 (1994) (No. 92-6281) ........

Reply Brief of Petitioner, Hagen v. Utah, 510 U.S.
a ts oor ieecodiscecenctéeincomnoiseecs

Transcript of Oral Argument, Hagen v. Utah, 510

Page

15, 26

U.S. 399 (1994) (No. 92-6281) .......0........ seenvend Oy Bb, 29

Brief for the Petitioner, South Dakota v. Yankton
Sioux Tribe, (No. 96-1581) (August 7, 1997)...
Brief of Charles Mix County, South Dakota,
Amicus Curiae, in Support of Petitioner, State of
South Dakota, South Dakota v. Yankton Sioux
Tribe, (No. 96-1581) (August 7, 1987)
Brief of Duchesne County, Utah and Uintah
County, Utah, Amici Curiae in Support of Peti-
tioner, State of South Dakota, South Dakota v.
Yankton Sioux Tribe, (No. 96-1581) (August 7,

2

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Duchesne County, Utah, and Uintah County,
Utah, respectfully pray that a writ of certiorari issue to
review the judgment and opinion of the United States
Court of Appeals for the Tenth Circuit entered in the
above-entitled proceeding on May 8, 1997.

OPINIONS BELOW

The opinion of the Court of Appeals for the Tenth
Circuit is reported at 114 F.3d 1513 (10th Cir. 1997)
and is reprinted at la-36a. The opinion of the federal
district court for the district of Utah is reported at 935
F.Supp. 1473 (D.Utah 1996) and is reprinted at 37a-
157a. A copy of the denial of Petition for Rehearing and
Suggestion for Rehearing En Banc of Defendants/Appel-
lants Duchesne County, Utah, and Uintah County, Utah,
issued July 1, 1997, appears at 158a-159a.

JURISDICTIONAL STATEMENT

The judgment of the court of appeals was entered on
May 8, 1997. The Counties’ Petition for Rehearing and
Suggestion for Rehearing en banc was denied on July 1,
1997. The jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

Act of May 27, 1902, ch. 888, 32 Stat. 245; Act of
March 3, 1905, ch. 1479, 33 Stat. 1048. Copies of
these Acts appear at 160a-161a and 161a-164a respectively.

STATEMENT OF THE CASE

Introduction. The issue in this litigation centers around
efforts to implement the mandate of the 1994 decision of
this Court in Hagen v. Utah, 510 US. 399 (1994) in the
State of Utah. To date, these efforts have been success-
ful only in part and even that success was not effective
until just days ago, an incredible three years and seven
months after Hagen was decided. Ute Indian Tribe y.

2

Utah, No. 75-CV-408-J (D. Utah Sept. 15, 1997) (Order
vacating injunction as to Roosevelt City, Utah).

In all other respects, the balance of the Hagen decision
has been seriously misconstrued, impermissibly narrowed
and effectively still held in abeyance. As a result, not
only has a mandate of this Court been frustrated, but
the misconstruction of Hagen promises consequences that
even Respondent Tribe describes as nightmarish, and not
just in the State of Utah, but throughout former reserva-
tion areas across the United States. See Br. for the Pet’r.
at 2 n.2, Br. of Charles Mix County, S.D. in Supp. of
Pet’r. at 30 n.11, Br. of Duchesne County, Utah and
Uintah County, Utah in Supp. of Pet’r. at 1-2, Yankton
Sioux Tribe, (No. 96-1581). Hagen was not intended
to cause this result.

Over four years ago, this Court granted certiorari in
Hagen to resolve a direct conflict between decisions of
the Tenth Circuit Court of Appeals and the Supreme
Court of Utah. Previously, in Ute Indian Tribe v. Utah,
773 F.2d 1087 (10th Cir. 1985), (en banc) cert. denied,
479 U.S. 994 (1986), the Tenth Circuit concluded, in
a divided en banc opinion, that the original boundaries of
the Uintah reservation had not been diminished. In State
v. Hagen, 858 P.2d 925 (Utah 1992) and State v. Perank,
858 P.2d 927 (Utah 1992), however, the Supreme Court
of the State of Utah reached the opposite conclusion.

In Hagen, this Court considered those competing argu-
ments and concluded that the Uintah reservation had in
fact been diminished, in accordance with the views of
the Supreme Court of the State of Utah. Hagen, 510 US.
at 421-422.

1 Other panels of the Tenth Circuit subsequently recognized, in
passing, the extent to which Hagen completely undermined the
holding and rationale of Ute Indian Tribe. United States v. Cuch,
79 F.3d 987, 989 (10th Cir. 1996), cert. denied, 117 S.Ct. 384
(1996) ( “effectively overruled’) and Gardner v. United States at
5 n.4, No. 93-4102 (10th Cir. May 5, 1994) (unpublished order and
judgment) (“issue was recently resolved’). See also United States

3

1. Federal District Court. From the beginning, in the
State of Utah, however, the issue was presented to the
federal district court in a most unusual manner. Immedi-
ately after the slip opinions were first released by the
Supreme Court of the State of Utah in Perank and Hagen,
the Ute Tribe “reopened” the earlier Ute Indian Tribe
case by filing a motion in the federal district court in
Utah, in this case, for injunctive relief against the State
and local governments. This motion was filed pursuant to
a Claimed exception to the Anti-Injunction Act, 28 U.S.C.
§ 2283. Ute Indian Tribe v. Utah, 935 F.Supp. 1473,
1482 (D.Utah 1996), App. 44a. The motion sought to
permanently enjoin the Utah Supreme Court from entering
as final its decision in those cases, and to enjoin the State
and its political subdivisions from enforcing or relying
upon those decisions in any way. Id. The Tribe simul-
taneously sought a temporary restraining order or prelim-
inary injunction having the same effect. Id. at 1482, App.
44a. The United States, as amicus curiae, unequivocally
supported the Tribe’s position.2 The entire matter in the
federal district court was assigned to the Honorable Chief
Judge Bruce S. Jenkins, whose earlier views on the same

v. Duncan, 857 F.Supp. 852 (D.Utah 1994). (And even before
Hagen, the panel in Pittsburgh & Midway Coal Mining Co. v.
Yazzie, 909 F.2d 1387, 1400 (10th Cir. 1990), cert. denied, 498
U.S. 1012 (1990) noted some fundamental problems with Ute Indian
Tribe, as this Court subsequently recognized). Hagen, 510 U.S.
at 414.

? Although the United States told this Court in 1986 in Ute Indian
Tribe that there would be time enough another day for the Utah
Supreme Court to express its views, when they were suggesting,
in support of the Ute Tribe, that certiorari be denied, the United
States now told the federal district court another story. Br. for
the United States as Amicus Curiae at 15, Ute Indian Tribe, 479
U.S. 994 (1986) (No. 85-1821). See also State v. Perank, 858 P.2d
927, 931 (Utah 1992). In this new Department of Justice brief,
the State of Utah’s activity was described as “intolerable and
dangerous” and the United States said it “must be enjoined.”
United States’ Mem. as Amicus Curiae in Supp. of Ute Indian
Tribe’s Mot. for Injunctive Relief at 6, Ute Indian Tribe v. Utah,
(D.Utah, Nov. 23, 1992) (No. C-75-408-J x

4

subject in Ute Indian Tribe had just been rejected by
the Utah Supreme Court. See generally Perank, 858 P.2d
at 927.

In August, 1992, the State and local defendants and
the Ute Tribe, through counsel, entered into a stipulation
for the entry of injunctive relief pending the decision of
the district court on the Ute Tribe’s motion for permanent
injunctive relief. The stipulation by its terms was to
expire on the day after the district court issued its decision
on the Tribe’s motion for injunctive relief. Ute Indian
Tribe, 935 F.Supp. at 1482, App. 44a. The district court
issued an Order (“Injunctive Order”) incorporating the
parties’ stipulation concerning injunctive relief on Sep-
tember 2, 1992, nunc pro tunc to August 3, 1992. Id. at
1482, App. 44a.

In the ensuing months, the district court vacated sev-
eral previously scheduled hearings on the Tribe’s motion
for injunctive relief pending this Court’s consideration of
the certiorari petition in Hagen, and subsequently pending
this Court’s decision on the merits. /d. at 1482-1483,
App. 45a. (The injunction and the proceedings in the
district court were specifically brought to the attention
of this Court in Hagen.)

On February 23, 1994, this Court decided Hagen,
affirming the decisions of the Utah Supreme Court and
ruling that the Uintah reservation had been diminished
for jurisdictional purposes. A petition for rehearing was
denied by this Court on April 18, 1994. Hagen v. Utah,
511 U.S. 1047 (1994).

The next week, on April 25, 1994, the State and local
defendants promptly filed a motion in the federal district
court to vacate and set aside the Injunction Order, and
to dismiss the Ute Tribe’s motion for permanent injunc-
tive relief. Ute Indian Tribe, 935 F.Supp. at 1483, App.
46a. After a United States Magistrate dismissed a federal
prosecution of an Indian for crimes occurring in Roose-
velt, Utah, on the basis that Hagen had held that such

5

prosecutions were a state responsibility, the State and its
subdivisions also moved the federal district court for an
Order at least modifying the Injunction Order to permit
immediate state prosecution within the former reservation
boundaries.

In May, 1994, the district court temporarily modified
the Injunction Order to permit the State and local defend-
ants to prosecute felony crimes occurring on lands within
the original boundaries of the Uintah Reservation which
were not “Indian country” as defined by 18 U.S.C. § 1151
et seq. Id. at 1483, App. 46a. The district court’s modi-
fication was without prejudice to the collateral estoppel
claims of the Tribe, and did not determine the Indian
country status of particular lands. /d.

In September, 1994, prior to hearing oral arguments
on the pending motions, the district court entered its Pre-
Trial Order, based upon a stipulation between the Ute
Tribe and the State and local defendants. Jd. at 1484,
App. 48a. The Pre-Trial Order provided, inter alia, that
lands that had been opened and settled pursuant to federal
homestead laws were not Indian country pursuant to 18
U.S.C. § 1151, as Hagen held. The district court’s stipu-
lated finding that homesteaded lands were not Indian
country was subject to the Ute Tribe’s contention that the
State and local defendants were collaterally estopped
by Ute Indian Tribe from reliance on Hagen. Id. at 1484,
App. 49a. With the case in this posture, the injunction
was still in effect in spite of Hagen, with the limited
exception noted above.

Finally, after twenty-five months, in April, 1996, the
district court issued a ninety-six page Memorandum Deci-
sion in connection with the pending motions. Jd. at 1473,
App. 37a-157a. Even after two years, the district court
declined to rule on the merits of the Tribe’s motion for
injunctive relief and the State’s motion to dissolve the
Injunction Order. The district court instead continued the
Injunction Order in full force and effect, even while rec-
ognizing that “Indian country” did not include “unallotted

TT

6

and unreserved lands of the Uintah Reservation that were
opened to entry in 1905, to the extent that those lands
were not later restored to tribal ownership.” Id. at 1531,
App. 152a. This Memorandum Decision had the effect
of continuing to permit certain State felony prosecutions
of Indians, but it continued the injunction in effect as to
all misdemeanor prosecutions of Indians and exercises of
civil jurisdiction within the historic reservation bound-
aries, even in areas the district court held to be outside
Indian country.

Further, adopting verbatim a new post-Hagen argu-
ment submitted by the Ute Tribe with the support of the
United States, amicus curiae, the district court also held
that historic reservation boundaries persist despite Hagen
and encompass all fee lands in the area except for home-
stead lands. For nearly two decades, the Ute Tribe and
the United States had told everyone, including the federal
district court (and this Court), exactly the opposite story
—that unless they were successful in the diminishment/dis-
establishment litigation, the reservation would consist of
only trust lands (still a million plus acre reservation).
The State and local governments proceeded on the basis
of the same assumption because that was the only assump-
tion supported by three and one-half decades of precedent
from this Court and all lower courts.

For this reason, the new post-Hagen argument adopted
by the district court is unprecedented in this type of liti-
gation and unprecedented in procedural and practical com-
plexity. First it is unprecented in this type of litigation be-
cause no other fee lands in similar diminished /disestablished
areas in the United States are within the limits of Indian
reservations. Seymour v. Superintendent, 368 U.S. 351
(1962); Mattz v. Arnett, 412 US. 41 (1973); De-
Coteau v. District County Court, 420 U.S. 425 (1975);
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977);
Solem v. Bartlett, 465 U.S. 463 (1984) and Hagen v.
Utah, 510 U.S. 399 (1994) were all argued and described
on the basis of this understanding, and correctly so. Sec-
ondly, it is unprecedented in procedural and practical com-

sei sina

7

plexity in that a parcel by parcel title search will now be
required, in every instance, to determine jurisdiction under
this new post-Hagen argument. In the past, simple tract
identification sufficed.

Lastly, the district court also expressly held that it
“need not” and did “not reach any question” regarding
the present status of the Uncompaghre reservation or the
lands withdrawn for national forest purposes. According
to the district court, “[t]hose questions await another
day.” Ute Indian Tribe, 935 F.Supp. at 1528, App. 146a.
Of course, in the interim, the re-established reservation
Status of these areas as set forth in the 1985 Ute Indian
Tribe decision would continue.

In connection with the Memorandum Decision, the dis-
trict court also filed a Certificate and Request for Further
Instructions (“Request”) directed to the United States
Court of Appeals for the Tenth Circuit. Jd. at 1531, App.
154a. In the Request, the district court noted the direct
conflict between the court of appeals’ mandate in Ute
Indian Tribe, which held that all lands within the historic
reservation boundaries were Indian country, and the deci-
sion of this Court in Hagen, which held that those bound-
aries had been diminished for jurisdictional purposes. /d.
The district court requested further instructions in light
of this conflict, and indicated that the court of appeals
could “construe this court’s request for instructions as an
invitation to recall its own mandate for further considera-
tion.” Jd. at 1533, App. 157a.

On April 12, 1996, the State and local defendants
filed their Notice of Appeal from Judge Jenkins’ decision
continuing the Injunction Order in effect, pursuant to 28
U.S.C. § 1292(a)(1). Id. at 1531, App. 153a.

2. Court of Appeals. With the mandate in Hagen
restricted in this fashion by the injunction, which contin-
ued in force and effect as noted above, the court of appeals,
on its own motion, expedited the appeal by Order dated
April 30, 1996. Ute Indian Tribe v. Utah, 114 F.3d 1513
(10th Cir. 1997), App. la. Briefing was completed in

a

8

short order and oral argument submitted on September
10, 1996.° Eight months later, the panel affirmed the
district court in all substantial respects.

Although the panel did reject the Ute Tribe’s collateral
estoppel argument limiting Hagen’s viability, the Ute
Indian Tribe mandate was modified only to exclude
homesteaded land. In essence, the court of appeals also
adopted the new post-Hagen argument of the Ute Tribe
and the United States. Not a single case was cited as
precedent for this position.

For some reason, the panel also summarily decided to
further restrict the precedential scope of Hagen with re-
spect to the Uncompaghre reservation and the national
forest lands. Id. at 1530-1531, App. 35a-36a. Without
even mentioning that the district court expressly held that
it “need not” and did “not reach any question” regarding
the status of these areas (“those questions await another
day”), the panel ruled that principles of “finality” required
continued recognition of the reservation status acknowl-
edged in the first instance in 1985 in Ute Indian Tribe.
In the process, the panel said nothing about the significant
concession by the United States (made after Ute Indian
Tribe and presently reiterated before the court of appeals)
that the Uncompahgre reservation no longer existed 11
its view for a number of important reasons.* In the final
analysis, the court of appeals acknowledged that even a
“misreading of the applicable legislation” would not “jus-
tify departing from our earlier judgment.” Jd. at 1529,
App. 31a.

8 The panel consisted of Circuit Judge, Deanell R. Tacha and
Senior Circuit Judge, William J. Holloway, Jr. of the Tenth Circuit
and Senior Circuit Judge, John C. Godbold of the Eleventh Circuit
sitting by designation.

* These reasons, which have previously been brought to the atten-
tion of this Court on more than one occasion, also include the gen-
eral observation that not a single tribal member resides anywhere
within the original million plus acre “reservation” area.

9

A timely Petition for Rehearing and Suggestion for
Rehearing En Banc was filed by Duchesne County, Utah
and Uintah County, Utah on June 11, 1997. That peti-
tion was denied on July 1, 1997.

REASONS FOR GRANTING THE WRIT OF CERTIORARI

I. THE DECISION OF THIS COURT IN HAGEN HAS
BEEN MISCONSTRUED TO PRESERVE HISTORIC
RESERVATION BOUNDARIES CONTRARY TO
SUBMISSIONS IN HAGEN AND CONTRARY TO
RELATED PRECEDENT OF THIS COURT.

A. The Post-Hagen Argument Removes From Indian
Country Status Only Those Lands Ceded, Restored
to the Public Domain, or Otherwise Directly Af-
fected, Leaving Historic Reservation Boundaries
Intact.

The Counties want to primarily direct the Court’s
attention to the new argument submitted below by the
Ute Tribe and the United States that is premised on an
overly restrictive view of the decision of this Court in
Hagen. According to this new post-Hagen argument, even
if an act was intended to diminish or disestablish a reser-
vation or a portion thereof, it would remove from Indian
country status only those lands ceded, restored to the
public domain, or otherwise directly affected, leaving his-
toric reservation boundaries intact so as to encompass all
other fee lands in the same area.

This new post-Hagen argument of the Ute Tribe and
the United States is based only on isolated sentences in
the Hagen opinion, taken out of context and used in
conjunction with “diminished” terminology to support a
reservation concept that would have been unthinkable a
century ago. This argument is pure sophistry, and it flies
in the face of the submissions and decisions in Seymour,
Mattz, DeCoteau, Rosebud, Solem and Hagen. In each
and every one of these cases it was conceded that affected

10

reservation areas would consist of only trust lands if the
reservation areas were, in fact, diminished.°

In addition, the Ute Tribe and the United States con-
cede that after the post-Hagen argument is recognized,
implementation will require title searches, instead of the
routine fee/trust checkerboard identifications that have
been in place for decades in these areas similarly situated.
In a Petition for Rehearing in this Court in Hagen, the
Ute Indian Tribe acknowledged that this scenario prom-
ised nightmarish consequences and would be completely
unworkable. Br. of Ute Indian Tribe in Supp. of the Pet.
for Reh’g at 1, Hagen (92-6281). Hagen does not support
this argument. No decision of this Court supports this
argument.

The Counties are in a favorable position to offer views
in response to this novel argument of the Ute Tribe and
the United States. As amici curiae participants in Hagen
and Hagen-related litigation for almost two decades, the
Counties are as familiar as the Ute Tribe and the United
States with the submissions and the record in Hagen and
similar cases. As this Court has noted, the argument is
of more than just passing concern to the residents in these
Counties. Hagen, 510 U.S. at 421.

B. Respondent Ute Tribe Has Conceded That Imple-
mentation of the Holding of the Tenth Circuit Will
Be Completely Unworkable and Unprecedented.

Subsequent to the decision of Hagen, the Ute Tribe
attempted to submit an amicus curiae brief in support of
the petition for rehearing in this Court. The Court did
not allow the amicus brief to be filed. Counsel for Peti-
tioner in Hagen thereafter promptly resubmitted the same
text under the caption of a Motion to Supplement Petition

5 The same argument ignores the fact that when trust title to
an allotment is extinguished and passes into fee status, it would
otherwise cease to be Indian country. 18 U.S.C. §1151(c).
DeCoteau, 420 U.S. at 427 n.2, 446-447. It also ignores special Utah
acts and other federal Utah orders directed to fee lands, inconsistent
with continuing reservation status.

11

for Rehearing. It was in this form that the new post-
Hagen theory of what was really at issue in Hagen first
surfaced. This Court denied the petition without comment.

The first problem with the new post-Hagen theory was
that it squarely conflicted with the previous “disestab-
lished” except for “trust” land arguments submitted by
the parties. As a result, the Tribe simply did not mention
this point. Secondly, apart from the apparent dilemma of
attempting to present argument that counters traditional
disestablishment/diminishment considerations and ad-
dresses disestablishment/diminishment precedent and is-
sues in those terms (as the Ute Tribe did and continues
to do to this day), while at the same time maintaining
that disestablishment/diminishment in the sense of those
cases was never really an issue, the substance of the mo-
tion is noteworthy in only one other respect.

In the process of telling this Court that its decision in
Hagen only excised the unallotted homestead land from
the Uintah reservation, leaving the historic reservation
boundary otherwise intact (according to the new post-
Hagen theory), the Ute Tribe submission makes one
critical concession. This concession, in the Counties’ view,
is telling here insofar as practical considerations have any
role in this process.

According to the Ute Tribe admission, if this new post-
Hagen theory were really the holding of Hagen, “con-
sistent law enforcement” and the “administration of civil
laws” would be “virtually impossible” throughout the en-
tire area. Br. of Ute Indian Tribe in Supp. of the Pet.
for Reh’g at 4, Hagen, (92-6281). We agree. Similarly,
according to the Ute Tribe submission, it would also be
“virtually impossible to bring any continuity or organiza-
tion to such regulatory activities as zoning, liquor regula-
tion and taxation.” Jd. We also agree. In addition, the
Ute Tribe submission goes on to assert that:

The jurisdictional chaos is further increased because,
within the townsites established under the 1905 Presi-
dential Proclamation, the lots that had not been pur-

12

chased were restored to the Tribe by the 1945 Restor-
ation Order. Thus, the State may have jurisdiction
over one lot, but the Tribe and United States may
have jurisdiction over the lot next door. Conceivably,
a store within a townsite or Roosevelt City could be
located on two lots—one a former homestead and
one a former allotment or parcel restored to the
Tribe. Under such circumstances, the majority’s deci-
sion [Hagen] |new post-Hagen theory] could result
in the absurd situation of a tribal member being sub-
ject to or exempt from paying State sales taxes
depending on the location within the store of the
item purchased.

Id. at 4-5 (emphasis added) (footnote omitted).

Importantly, the Counties further agree with the hypo-
thetical conclusion in this argument. As the Ute Tribe
stated:

If all of the non-trust lands had been disestablished
from the Reservation, as Utah implied, jurisdictional
determinations would require a tract book search to
discover the trust/non-trust status of the land [De-
Coteau and Rosebud]. However, given the various
categories of land existing on the Reservation, under
the majority’s decision [Hagen] [new post-Hagen
theory] jurisdictional determinations will require a
tract-by-tract title search in order to ascertain whether
a particular site is homestead land, former allotment
land now in fee status, land restored to tribal owner-
ship under the 1945 Restoration Order, land parti-
tioned under the Ute Partition Act, present allotted
land or tribal trust land.

Id. at 3-4 (first emphasis added).

In this instance, the Ute Tribe submission is absolutely
correct. To the extent that Hagen represents disestablish-
ment/diminishment in the traditional sense, only trust
lands are Indian country under 18 U.S.C. § 1151(c). In
this situation, trust tract searches are occasionally neces-
sary. Of course, this result was approved in DeCoteau
and Rosebud for the reasons there stated. DeCoteau, 420
U.S. at 427 n.2, 429 n.3, 446-447. Rosebud, 430 USS.

13

at 584. See also Yazzie, 909 F.2d at 1421-22. And in
the decades since the decision of this Court in United
States v. Pelican, 232 U.S. 442 (1914), no significant
problems have arisen anywhere.

However, to the extent that anyone accepts the new
post-Hagen theory adopted by the court of appeals, a
complete title search would be necessary for each and
every arrest on fee lands throughout entire areas to de-
termine if the ultimate source of title was actually home-
steaded land. Because the vast majority of all crimes are
committed on these fee lands (population centers, high-
ways, and so forth) “jurisdictional chaos” would truly
result. And the administration of civil laws would truly
be “virtually impossible,” as the Ute Tribe stated.

Notwithstanding the views of the federal district court,
it is difficult to believe that any panel of any circuit
familiar with the actual administration of “Indian coun-
try” issues would accept this post-Hagen argument (even
without the admissions of the Ute Tribe). That the Tenth
Circuit would do so, in light of these admissions, and say
that Hagen required this result is truly perplexing. And
the explanation by the panel clarifies nothing with respect
to the “jurisdictional chaos” acknowledged by the Ute
Tribe:

We note that this conclusion has the benefit of pro-
ducing a stable, unchanging allocation of jurisdiction.
Under our approach, the Tribe and the federal gov-
ernment retain jurisdiction over all trust lands... .
and the three categories of non-trust lands [fee lands]
that remain within the boundaries of the Uintah
Valley Reservation. The state and local defendants
have jurisdiction over the fee lands removed from
the Reservation under the 1902-1905 allotment legis-
lation. Although a title search may be necessary to
determine which lands were opened under the 1902-
1905 legislation, the parties’ respective jurisdictions
will never change once the status of those lands is
conclusively determined. By contrast, under the de-
fendants’ theory (i.e. that Indian country is limited
to trust lands) the Indian country status of land
would change as trust lands are transferred into fee

14

lands. We recognize that.while our approach might
result in a checkerboard allocation of jurisdiction,
such a result is more desirable than the defendants’
approach, which would produce a “moving checker-
board” because lands leaving trust status would also
lose their status as Indian country.

Ute Indian Tribe, 114 F.3d at 1530 (emphasis added),
App. 35a.

“That Indian country is limited to trust lands” is some-
thing more than just “defendants’ theory.” The acts of
Congress that have defined “Indian country” and the deci-
sions of this Court that have interpreted those acts should
have played some role in the process. Under this “ap-
proach” they did not. The panel should have squarely
rejected the new post-Hagen argument.®

C. The Misreading of the Hagen Opinion Has Far-
Reaching Consequences.

The legal issues are relatively straightforward with re-
spect to the post-Hagen argument. Nevertheless, for over
25 months, the district court in Utah, at the urging of the
Ute Tribe and the United States, resisted the mandate of
this Court, and then issued a ninety-six page Memorandum
Opinion that wholly obscures an otherwise fairly simple
question. Ute Indian Tribe, 935 F.Supp. 1473, App. 37a-

®To the extent that the panel’s latest decision summarily pre-
cludes any reconsideration regarding the status of the Uintah
National Forest or the original Uncompahgre reservation (as mis-
takenly set forth in Ute Indian Tribe, 778 F.2d at 1089-1093)
because of “finality” principles, it is in further conflict, in principle,
with Hagen. Considering the very significant observation of this
Court in Hagen that the Tenth Circuit’s en banc opinion altered
decades of “justifiable expectations,” Hagen, 510 U.S. at 421, the
balance of the panel’s latest opinion regarding “finality” does not
really ring true. In addition, the views of the panel in this respect
do not reflect any consideration of contrary views noted in decades
of previous federal and state opinions noted by this Court in Hagen.
Because the district court refused to address the national forest
and the original Uncompahgre issues, Ute Indian Tribe, 935 F.Supp.
at 1530, App. 150a, the panel should not have rushed to judgment
on this question and it should not have precluded the Utah Supreme
Court from expressing its views.

15

157a. In Hagen, this Court squarely rejected the previous
views of the Ute Tribe and the United States and the
same district court specifically with respect to the status
of the original Uintah reservation. Now, the Ute Tribe
and the United States and the same district court have
somehow convinced a panel of the Tenth Circuit that, in
the process, this Court granted certiorari only to fashion
a very limited opinion in Hagen, but that Hagen also
created a jurisdictional nightmare in practical terms. This
is clearly not the case.

According to this novel argument, this Court intended
Hagen to undermine the most basic premise of all previ-
ous disestablishment/diminishment decisions: namely,
that surplus land statutes either disestablished original
reservation boundaries and left remaining trust land as
Indian country/reservation, or they did not.

Yet, it was because of a recognition of this fundamental
premise that the Ute Tribe told this Court in Hagen:

[T]he Utah Supreme Court held that the Uintah
Valley Reservation had been diminished by its open-
ing to settlement, finding that the Reservation con-
sists only of those lands held in trust by the United
States for the Tribe or individual Indians... . if
this Court were to alter the boundaries of the Res-
ervation. Such a judgment would reduce the Reser-
vation by almost three million acres and deprive the
Tribe and the United States of all civil and criminal
jurisdiction over the non-trust lands of the Uintah
Valley portion of the Reservation.

Mot. of Ute Indian Tribe to Intervene as a Matter of
Right at 4-5, 7, Hagen, 510 U.S. 399 (1994) (No. 92-
6281) (emphasis added) (footnote omitted).

The United States told this Court essentially the same
thing.

Later, the Ute Tribe and the United States adopted the
novel position noted supra, which instead assumes that in
addition to the trust land, a substantial amount of non-
Indian fee land is still within original reservation bound-
aries which this Court in Hagen intended to leave intact.

16

The post-Hagen argument is completely untenable. It is
contrary to what the Ute Tribe and the United States
repeatedly told this Court. And not a single case can be
cited in support of this proposition.

To argue that this Court would adopt such a radical
departure in its disestablishment/diminishment precedent,
without even mentioning that fact in the text of the Hagen
opinion, is pure sophistry. This analysis also expressly
conflicts with other precedent the Court repeatedly cited
throughout the Hagen opinion. Apparently, the panel
failed to clearly see what the district court was actually
suggesting and in so doing adopted a position that is
unworkable and unprecedented (“jurisdictional chaos”).

As a result, the decision in this case is the first case in
the history of this type of litigation to leave substantial
non-Indian fee lands within original reservation bound-
aries after an area had been restored to the public domain
—in other words, after the area had been the subject of
this type of a disestablishment surplus land statute.

If the panel had addressed, or at least noted, that por-
tion of the Hagen opinion that set forth Inspector
McLaughlin’s “picturesque phrase” with special emphasis,
it could not have recognized any such reservation bound-
ary:

Contemporary historical evidence supports our con-
clusion . . . . Inspector McLaughlin explained the
effect of these recent developments to the Indians
living on the Reservation. ... “ “You say that [the
Reservation boundary] line is very heavy and that
the reservation is nailed down upon the border. That
is very true as applying to the past many years and
up to now, but congress has provided legislation
which will pull up the nails which hold down that
line and after next year there will be no outside
boundary line to this reservation.’” . . . Inspector
McLaughlin’s picturesque phrase reflects the con-
temporaneous understanding. .. .

Hagen, 510 U.S. at 416, 417 (quoting and adding em-
phasis to Minutes of Councils Held by James McLaughlin,

17

U.S. Indian Inspector, with the Uintah and White River
Ute Indians at Uintah Agency, Utah, From May 18 to
May 23, 1903).

This Court in Hagen set forth this quote in the text of
the Hagen Opinion in support of its “conclusion,” includ-
ing the bracketed language and the added emphasis. With
“no outside boundary line to this reservation,” all related
precedent in this Court dictated that the diminished res-
ervation “boundary” would coincide with the trust lands
in the area, as the Ute Tribe and the United States recog-
nized and told this Court at the time, as noted above.
Id. Fee lands could not possibly still be within Indian
country/reservation, as the panel has now erroneously
concluded. Ute Indian Tribe, 114 F.3d at 1530-1531,
App. 35a-36a.

Inspector McLaughlin’s “picturesque phrase” (“pull
up the nails . . . outside boundary”) also establishes the
proper historical perspective from which the new argu-
ments of the Ute Tribe and United States should have
been viewed. This Court’s bracketed language and added
emphasis underscore the significance of the point and
undermine the novel proposition: namely, the historic
boundaries of the Uintah Valley Reservation continue to
exist, even after a restoration of the area to the public
domain, in such a manner as to encompass these other fee
lands (predominately owned by non-Indians) as well as
the National Forest.

As a result, despite the clear language of Hagen evinc-
ing a termination of the historic reservation boundaries,
the panel did not enter a judgment consistent with the
decision in Hagen. Instead, the panel accepted the novel
argument which preserves the historic boundaries of the
Uintah Reservation in spite of Hagen. Again, this unique
argument not only contradicts nearly a century of dis-
establishment/diminishment case law, as noted above, it
also contradicts prior submissions by both the Ute Tribe
and the United States throughout the Ute Indian Tribe
and Hagen litigation.

18

The Ute Tribe and the United States led the panel to
believe that the disestablishment of the original reserva-
tion boundaries had not been at issue throughout this
litigation. As we established, however, prior submissions
of both parties vitiate such a contention. Indeed, the
language employed by both parties makes clear that they
were well aware that the real issue never changed:
Whether the original reservation boundaries were dis-
established—+trust lands versus original reservation bound-
aries.

Consistent with this position, Utah Attorney General
Jan Graham referred to a Map exhibit coded to trust
land and boundaries and explained to this Court in oral
argument:

MS. GRAHAM: [T]he undisputed reservation, which
is 1.2 million acres. . . . [I]n the undisputed reserva-
tion, in the trust lands, on the tribal lands at Fort
Duchesne. . . . [T]Jhere is a reservation there, a big
one, 1.2 million acres . . . . because of course the
reservation, the trust lands that are there now are
unchallenged by the State and, of course, always
have been... .

Tr. of Oral Argument at 37, 38, 45, Hagen, 510 USS.
399 (1994) (No. 92-6281) (emphasis added).

This was the “diminished” reservation referred to by
Hagen.

On the other hand, the Ute Tribe and the United
States have now parlayed casual references by this Court
and the parties to a “diminished” reservation, intended
only to summarily describe this trust land, into an argu-
ment that assumes continuing historic reservation “bound-
aries” that encompass all non-Indian fee lands, except
those actually homesteaded. The attention of this Court
is warranted here to address this important and far-reach-
ing misreading of Hagen.

The public domain restoration language of the Act
which opened the reservation for settlement was directed
to “all unallotted lands.” As such, it was not intended
to simply remove only those lands from reservation status.

19

Instead, this restoration extinguished the historic reserva-
tion boundaries.

Nor is there any question that the misreading of Hagen
has other far-reaching consequences. It has already been
pointed out that the United States has introduced a ver-
sion of this argument in the Eighth Circuit in the case of
Yankton Sioux Tribe v. Southern Missouri Waste Mgmt.,
99 F.3d 1439 (8th Cir. 1996), cert. granted sub nom.
South Dakota v. Yankton Sioux Tribe, 65 U.S.L.W. 3814
(U.S. June 10, 1997) (No. 96-1581). See discussion
supra at 2. The Counties here have also filed an Amici
Curiae brief in that case that recounts, in some detail,
the legal arguments that demonstrate the extent to which
Hagen has been seriously misconstrued. Br. of Duchesne
County, Utah and Uintah County, Utah, Amici Curiae,
in Supp. of Pet’r., State of South Dakota, South Dakota
v. Yankton Sioux Tribe, (No. 96-1581) (August 7,
1997).”

Beyond that, it should also be noted that because the
United States has not restricted the scope of the post-
Hagen arguments to “public domain” restoration statutes
(Yankton is a “cession” statute), the areas affected by all
previous statutes could arguably be the source of even
more litigation of this type. For example, the status of
former allotments or other fee lands in the areas at issue
in Rosebud, in United States ex rel. Cook v. Parkinson,
525 F.2d 120 (8th Cir. 1975) cert. denied 430 U.S. 982
(1977), in Red Lake Band of Chippewa Indians v. Minne-
sota, 614 F.2d 1161 (8th Cir. 1980) (per curiam) cert.
denied, 449 U.S. 905 (1980), or in any other similar

7In the brief on the merits to this Court in the South Dakota
case, the United States never acknowledged support of the post-
Hagen argument in the Tenth Circuit, or the fact that the United
States had also submitted it in the Eighth Circuit in that case.
No mention was made of any of this. Amazingly, however, in this
same brief, the United States belittles the Yankton documentation
for lack of specific references to disestablishment like the Hagen
“no outside boundary” quotation—the very Hagen reference belit-
tled by the United States and ignored by the court of appeals in the
Tenth Circuit.

20

areas, deemed resolved for decades, could again be at
issue. Nothing in Hagen can fairly be said to support this
radical position.

D. This Court’s Opinion in Hagen Does Not Support
the Post-Hagen Argument.

This Court began its analysis in Hagen with a general
observation:

Our cases considering operative language of restora-
tion have uniformly equated it with a congressional
purpose to terminate reservation status.

Hagen, 510 U.S. at 413 (second emphasis added).
And the Court further stated:

Likewise, in DeCoteau we emphasized the distinction
between reservation and public domain lands: “That
the lands ceded in the other agreements were re-
turned to the public domain, stripped of reservation
status, can hardly be questioned. . . . The sponsors
of the legislation stated repeatedly that the ratified
agreements would return the ceded lands to the
‘public domain.’” 420 U.S., at 446 (emphasis
added).

Id. at 413 (emphasis added).

The Court later set forth the following quotation in the
text of the Hagen Opinion in support of its conclusion, in-
cluding the bracketing and special emphasis:

Contemporary historical evidence supports our con-
clusion. . . . Inspector McLaughlin explained the
effect of these recent developments to the Indians
living on the Reservation. . . . “ “You say that [the
Reservation boundary] line is very heavy and that
the reservation is nailed down upon the border. That
is very true as applying to the past many years and
up to now, but congress has provided legislation
which will pull up the nails which hold down that
line and after next year there will be no outside
boundary line to this reservation.” . . . Inspector

McLaughlin’s picturesque phrase reflects the con-
temporaneous understanding. .. .

21

Id. at 416-417 (quoting and adding emphasis to Minutes
of Councils Held by James McLaughlin, U.S. Indian
Inspector, with the Uintah and White River Ute Indians
at Uintah Agency, Utah, From May 18, to May a.
1903).

In spite of these references to disestablishment prece-
dent and to “terminate reservation status” “ ‘stripped of
reservation status’” and “‘no outside boundary line to
this reservation,” the Ute Tribe and the United States
now maintain that the result in Hagen does not support
diminishment/disestablishment in any recognized sense.

This argument seriously misconstrues Hagen.

At bottom, the sole basis of support for this argument
is a narrow focus on two sentences in the Hagen Opinion,
taken out of context, and viewed without any historical
perspective whatsoever:

In light of our precedents, we hold that the restoration
of unallotted reservation lands to the public domain
evidences a congressional intent with respect to those
lands inconsistent with the continuation of reserva-
tion status. Thus, the existence of such language
in the operative section of a surplus land Act indi-
cates that the Act diminished the reservation.

Id. at 414 (emphasis added).

While the post-Hagen argument stresses the lack of
reservation status “with respect to those lands,” (rather
than the lack of reservation status of the area affected)
and “diminished the reservation” (as opposed to a dis-
established or terminated the reservation description), it
omits any reference to the “termination” description of
Ute Indian Tribe in the very next sentence in Hagen.
This sentence in the Hagen Opinion undermines both
points and with them, the entire foundation for the novel

post-Hagen argument.
In context, Hagen states:

In light of our precedents, we hold that the restora-
tion of unallotted reservation lands to the public
domain evidences a congressional intent with respect

22

to those lands inconsistent with the continuation of
reservation status. Thus, the existence of such lan-
guage in the operative section of a surplus land Act
indicates that the Act diminished the reservation.
Indeed, we have found only one case in which a
Federal Court of Appeals decided that statutory
restoration language did not terminate a reservation,
Ute Indian Tribe, 773 F.2d, at 1092, a conclusion
the Tenth Circuit has since disavowed as “un-
examined and unsupported.” Pittsburg & Midway
Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1400,
cert. denied, 498 U.S. 1012 (1990).

Hagen, 510 U.S. at 414 (emphasis added).

First, the Court prefaces the entire paragraph by ex-
pressly referencing “our precedent.” Jd. Second, in con-
text, the complete paragraph makes clear that the Court
was not fashioning or allowing any result that would
accommodate such a novel argument even if it had been
advanced and, of course, it was not. This Hagen “termi-
nate a reservation” description of the overall issue in Ute
Indian Tribe, squarely refutes any argument to the con-
trary. See also DeCoteau, 420 U.S. 425 (“terminated”).
Lastly, this is the only permissible construction in light of
the specific trust land versus historic boundary submis-
sions detailed by all parties and amici throughout the Ute
Indian Tribe and Hagen litigation.

E. Specific Hagen Submissions Clarify the Trust/Fee
Jurisdictional] Distinction and Undermine the Post-
Hagen Argument.
(i) Descriptions Employed by the Ute Tribe and the
United States in Hagen.
Immediately after Perank/Hagen was decided by the
Utah Supreme Court, the Ute Tribe and the United States

8 The Counties have limited the discussion here to post-Utah
Supreme Court submissions to avoid repetition. Prior to that time
and throughout the entire Ute Indian. Tribe litigation, the Ute
Tribe and the United States (and everyone else) repeatedly told all
the courts, including this Court, the same thing—the issue war
whether the reservation was “disestablished” except for the “trust”
lands.

23

repeatedly told the United States District Court of Utah
exactly what was at issue: the disestablishment of the
original reservation boundaries, leaving only “trust” land
as Indian country. Those express “disestablished” and
“trust land” representations were submitted in conjunction
with the motions for injunctive relief. It is true that after
Hagen was decided in this Court, they changed their
argument, but what they said before Hagen is telling. On
July 31, 1992, the Ute Tribe submitted:

The State Supreme Court’s decision, . . . holds that
the Uintah Valley Reservation was disestablished,
except for those lands which are held in trust by the
United States for the benefit of the Tribe... . The
State court’s judgment reduces, by almost three mil-
lion acres, the criminal jurisdictional boundaries of
the United States and Tribe. . . . The State law
would subject tribal members who commit offenses off
trust land to state criminal prosecution.

Mem. in Supp. of Renewed Mot. for Injunctive Relief at
8, 9, 10, Ute Indian Tribe v. Utah (D. Utah July 31,
1992) (No. C-75-408-J) (footnote omitted) (emphasis
added ).°

Two months later, in September, 1992:

If permitted to be entered as a final judgment, State
v. Perank would reduce the boundaries of the Uintah
and Ouray Reservation, and, thus, the jurisdictional
territory of the Tribe, under State law, to approxi-
mately 1.1 million acres of trust land. . . . [T]he
State Supreme Court ruled that the Reservation was
disestablished, except for those lands held in trust for
an individual Indian or the Tribe.

Tribe’s Br. in Supp. of Permanent Inj. at 3, 8, Ute Indian
Tribe v. Utah (D.Utah Sept. 24, 1992) (No. C-75-408-J)
(footnote omitted) (emphasis added).

® The Ute Tribe assumed the legal conclusion in Perank/Hagen,
if affirmed, would also undermine the continuing existence of the
original Uncompahgre Reservation. This point and the fact that the
United States has now conceded that the Uncompahgre Reservation
no longer exists, is discussed supra.

24

And then, in December, 1992, the Ute Tribe reiterated
the same points in no uncertain terms:

[T}he trial court had concluded that Clint Perank
was an Indian and that Myton, Utah (as well as all
non-trust lands) were outside the boundaries of the
Reservation. ...

Tribe’s Reply Br. in Supp. of Permanent Inj. at 9, Ute
Indian Tribe (No. C-75-408-J) (emphasis added).

The views of the United States were submitted to the
district court at approximately the same time. In Novem-
ber, 1992, the United States unequivocally addressed this
issue in similar terms:

On July 17, 1992, the Supreme Court of Utah held
in State v. Perank, 191 Utah Adv. Rep. 5 (1992),
and two companion cases that the exterior boundaries
of the Uintah and Ouray Indian Reservation (herein-
after “Reservation”) have been disestablished. The
state court ruling directly conflicts .. .

United States’ Mem. as Amicus Curiae in Supp. of Ute
Indian Tribe’s Mot. for Injunctive Relief at 2, Ute Indian
Tribe v. Utah (D.Utah Nov. 23, 1992) (No. C-75-408-J)
(emphasis added) (footnote omitted ).”°

Nor did the Ute Tribe or the United States confine
their views confirming the scope of the issue decided by
the Utah Supreme Court to submissions in federal district
court. The Ute Tribe told this Court the same thing for
other reasons when opposing certiorari in Hagen in No-
vember, 1992:

[T]he issue of whether Congress intended to disestab-
lish the Uintah Valley Reservation, Utah.

Br. of Amicus Curiae Ute Indian Tribe in Opp’n to
Granting the Writ of Certiorari at i, Hagen, 510 US.
399 (emphasis added).

10 Tt should be noted that this “disestablished” except for “trust
land” analysis of the Ute Tribe and the United States was submitted
to the same federal district court that subsequently, without men-
tioning the arguments, agreed with the Ute Tribe and the United
States that “disestablished” except for “trust land” was not the
issue presented or decided in Hagen.

Seema tiliaiaameaaa arate,
a a a

25

It was in this light that this Court, fully informed, granted
the petition for certiorari, notwithstanding the opposition
of the Ute Tribe.

The United States, consistent with all previous submis-
ions, also viewed the issue in the same light. However,
the United States agreed that certiorari should be granted
in Hagen because plenary review was appropriate. The
review, according to the United States, would resolve the
conflict between the views expressed by the Utah Supreme
Court and the Ute Indian Tribe decision. The United
States posed the question in the following manner:

In Perank, the Utah Supreme Court concluded that
the May 1902 Act and the March 1905 Act dimin-
ished the Uintah Indian Reservation and that the
town of Myton accordingly lies outside the boundaries
of the Reservation.

Br. for the United States as Amicus Curiae, at 5, Hagen,
510 U.S. 399 (citing Respondent’s Br. App. at 289-639,
State v. Perank, 858 P.2d 927 (Utah 1992) ).

On the merits, the Ute Tribe next filed a motion to
intervene as a matter of right in this Court in May, 1993.
Again, the Ute Tribe repeatedly recognized, emphasized,
and stressed the scope of the issue presented:

This case will determine for all time the exterior
boundaries of the Uintah and Ouray Reservation
(hereafter the “Reservation”), which is located in
northeastern Utah. . . . [AJn issue that will finally
determine the scope of its jurisdiction. . . . The
ruling of the Tenth Circuit recognized that the Tribe’s
jurisdiction extends to some 4.4 million acres...
the Utah Supreme Court held that the Uintah Valley
Reservation had been diminished by its opening to
settlement, finding that the Reservation consists only
of those lands held in trust by the United States for
the Tribe or individual Indians. The ruling of the
Utah Supreme Court has the effect of reducing the
size of the Reservation, and correspondingly the area
over which the Tribe may exercise jurisdiction, by
approximately three million acres. . . . Such a judg-

26

ment would reduce the Reservation by almost three
million acres and deprive the Tribe and the United
States of all civil and criminal jurisdiction over the
non-trust lands of the Uintah Valley portion of the
Reservation. More importantly, because of the
“checkerboard” nature of land ownership patterns, a
judgment reducing the boundaries of the Reservation
would result in a tract-book search to determine both
civil and criminal jurisdiction. . . . [T]ribal members
would, if the Reservation were to be adjudged dimin-
ished, be subjected to criminal prosecutions in state
court for infractions occurring on non-trust lands of
the Reservation. See DeCoteau v. District County
Court, 420 U.S. 425 (1975). Third, tribal members
residing on non-trust lands of the Reservation would
no longer be able to avail themselves of tribal court
jurisdiction. . . . [T]ribal members not residing,
working and locating their property on trust lands of
the Reservation would be burdened. . . . As a prac-
tical matter, a diminishment of the Reservation would
have the effect of creating two distinct classes of
tribal members within the historic boundaries of the
Reservation, those who live on trust lands and those
who do not. Those members who reside on trust
lands will continue to be subject to tribal and federal
law, may make use of tribal courts and may partici-
pate in tribal government: However, those tribal
members who now reside on non-trust lands of the
Reservation . . . become persons subject to the juris-
diction of the State of Utah. .. . [T]he boundaries
of the Reservation would no longer be at issue... .

Mot. of Ute Indian Tribe to Intervene as a Matter of
Right at 2, 4-5, 7-8, 8-9, 9 n.5, 10 n.7, Hagen, 510 USS.
399 (footnote omitted) (emphasis added).
This Court denied the Motion to Intervene.

In June, 1993, the Ute Tribe then submitted its brief
amicus curiae in this Court. For the third time, the Ute

Tribe described to this Court the issues in the same
manner.

While a decision that the Reservation has been dis-
established would subject Indians to the full panoply

27

of state law for conduct on non-trust lands. . ..
Therefore, any discussions between McLaughlin and
the Utes were irrelevant except to the extent, if any,
that they influenced Congress to abandon any intent
it may have had to disestablish the Reservation.

Br. of Amicus Curiae Ute Indian Tribe at 10 n.1l1, 25
n.25, Hagen, 510 U.S. 399 (emphasis added).

The United States, as amicus curiae, also repeated the
same arguments. At this point, the issue was still described
in the same terms:

QUESTION PRESENTED: Whether the provisions
of the Act of May 27, 1902, ch. 888, 32 Stat. 245,
and the Act of Mar. 3, 1905, ch. 1479, 33 Stat.
1048, that relate to settlement of non-Indians on the
Uintah Indian Reservation altered the boundaries of
the Reservation. . . . This case involves the bound-
aries of the Uintah Indian Reservation. The location
of the boundaries affects the scope of the law enforce-
ment obligations and powers of the United States
under the Indian Major Crimes Act, 18 a. Lise»
and other federal statutes that apply only in Indian
country. . . . [T]he Utah Supreme Court erred in
relying (Resp. App. 37a) on Inspector McLaughlin’s
advice to the Indians that “there will be no outside
boundary line to this reservation.”

Br. for the United States as Amicus Curiae Supp’g Pet’r
at i, 1, 23 n.31, Hagen, 510 U.S. 399 (No. 92-6281)
(emphasis added).

Although the Ute Tribe did not participate in Oral
Argument before this Court, the United States did. Noth-
ing in the Transcript of Oral Argument supports the post-
Hagen position of the United States:

QUESTION: .. . speaking of restoration to the
public domain, if land had been restored, would the
reservation boundary be excluded. ... MR. MANN:
_. , the language would not have been sufficient to
alter the boundaries of the reservation.

Tr. of Oral Argument at 18, Hagen, 510 U.S. 399 (em-
phasis added).

28
(ii) Language employed by the Petitioner in Hagen.

The preceding discussion of the views of the Ute Tribe
and the United States fairly reflects the issue as submitted
and decided in the Utah Supreme Court and in this
Court. In all respects, the views of the parties and other
amici also mirror this understanding. There is no need
in this petition to further document that position, how-
ever, with one exception. That exception involves the
arguments of Petitioner in Hagen. Petitioner’s views are
noteworthy in this regard because they were submitted
by former attorneys of record for the Ute Tribe involved
in the federal district court, the court of appeals, and
this Court in opposing certiorari in the original Ute Indian
Tribe litigation. Ute Indian Tribe, 773 F.2d 1087 (10th
Cir. 1985) cert. denied, 479 U.S. 994 (1986). As such,
these arguments reflect a familiarity with all aspects of
the disestablishment issue in Ute Indian Tribe and Hagen.
This is the perspective from which Petitioners’ submissions
on the merits in Hagen should be viewed:

[Hagen] had lived for five to six years on the Ute
Reservation on nontrust land in the vicinity of Myton,
Utah.

[T]he issue of Uintah Valley Reservation disestab-
lishment. . . . The status of the Uintah Valley Reser-
vation was the focus of attention, not the periphery
of concern in the federal court litigation... . If the
Court upholds the State of Utah Supreme Court deci-
sion of July 17, 1992, then the State of Utah and its
subdivisions will exercise general civil and criminal
jurisdiction over Indians whenever they are located
off trust lands. . . . The plan selected by Congress
to ultimately open the Uintah Valley Reservation
lacked the two critical characteristics found by the
Court to have accomplished a reservation extinguish-
ment. . . . The Utah Supreme Court improperly
analyzes a portion of the 1903 McLaughlin report
as evidence of an intent to surrender the Reservation
boundary. . . . [I]t is entirely unfair (and inaccurate
after Solem) for Utah to contend that restoring Indian

29

lands to the public domain in and of itself extin-
guishes a reservation boundary... .

Br. of Pet’r. at 4, 5, 16-17, 29, 37, 43 n.24, 48, Hagen,
510 U.S. 399 (emphasis added).

In the Reply Brief, the views of Petitioner reflect the
same position:

Before the Court today, Utah seeks a ruling that,
in fact, the boundaries of the Uintah Valley Reserva-
tion were disestablished. . . . federal courts preserv-
ing the boundary of the Uintah Valley Reservation.
. . . This appeal will determine whether the State
of Utah criminal justice system (as opposed to fed-
eral and tribal courts) will prosecute Indians com-
mitting crimes on . . . presently owned in fee by non-
Indians. Regardless of the outcome of this case,
federal and Tribal courts will continue to prosecute
Indians on . . . lands retained by the Ute Indian
Tribe for its members.

Reply Br. of Pet’r. at 2, 16-17, Hagen, 510 U.S. 399
(emphasis added).

At oral argument, the same counsel for Petitioner on
the merits briefs supra (that represented the Ute Tribe
in the district court, the court of appeals, and before this
Court in opposing certiorari in the Ute Indian Tribe
litigation), presented the issue in even more succinct
terms:

MR. SENECA: [T]he question presented is whether
or not the boundary of the Uintah Reservation was
disestablished. .. . MR. SENECA: ... Now, it’s
couched in terms of whether or not the reservation
was disestablished, and the reason it’s couched in
those terms is that if the reservation boundary had
been disestablished, then Myton, Utah, is not in
Indian country. . . . MR. SENECA: [T}his Court
is going to have to decide whether or not that reser-
vation boundary has been disestablished or not.

Tr. of Oral Argument at 3, 5, 9, Hagen, 510 U.S. 399
(emphasis added).

30
CONCLUSION

Petitioners are not unmindful of the considerations gov-
ering review on certiorari. Nor are we unmindful of
the work that went into the decisions of this Court in such
cases as DeCoteau, Rosebud and Hagen. In this case, we
respectfully submit that there is truly a direct conflict be-
tween the decision of the court of appeals and the decision
of this Court in Hagen, which is apparent from the
rationale of the court of appeals. If that conflict is not
resolved in some fashion by some type of appropriate
relief in this Court, much of the effort in Hagen and the
other cases will have been expended for nothing. For the
foregoing reasons, the Petition for a Writ of Certiorari
should be granted.

Alternatively, consideration of this petition should be
deferred until after this Court has had an opportunity to
view the issue in light of the briefing and oral argument
in South Dakota v. Yankton Sioux Tribe (No. 96-1581).

Respectfully submitted,
HERBERT WM. GILLESPIE Tom D. ToBIN
Duchesne County Attorney TOBIN LAW OFFICEs, P.C.
500 East 100 South P.O. Box 730
P.O. Box 206 422 Main Street
Duchesne, UT 84021 Winner, South Dakota 57580
(435) 788-2435 (605) 842-2500
JOANN B. STRINGHAM Counsel of Record
Uintah County Attorney
152 East 100 North

Vernal, UT 84078
(485) 781-5436

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1510%3A01. Public record. Not legal advice.