Opposition Brief — Duchesne County v. Ute Indian Tribe of the Uintah & Ouray Reservation

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

a eee

i everetia Corst, tS

ay Foyt BD

No. 97-0570

het $1 $997 —

InThe {

_ GLERK

Supreme Court of the Muited States —

October Term, 1997

DUCHESNE COUNTY, UTAH

and

UINTAH COUNTY, UTAH,

Petitioners,

VS.

THE UTE INDIAN TRIBE

OF THE UINTAH AND OURAY RESERVATION

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR A WRIT OF CERTIORARI

Robert S. Thompson, III

Counsel of Record

Sandra Hansen

Office of Legal Counsel

UTE INDIAN TRIBE

P.O. Box 190

Fort Duchesne, Utah 84026

(435) 722-5141, exts. 101/151

Counsel for Respondent

Ute Indian Tribe of the Uintah

and Ouray Reservation

QUESTIONS PRESENTED

As phrased by the petitioners, the "questions

presented" are convoluted and difficult (if not impossible) to

comprehend. For purposes of clarity, the respondent suggests

that those questions be rephrased as follows:

Did the United States Court of Appeals for the Tenth

Circuit err when it refused to expand this Court’s

decision in Hagen v. Utah, 510 U.S. 399, 114 S.Ct.

958, 127 L.Ed.2d 252 (1994) to remove, from "Indian

country" status, those lands on the Uintah Valley

Reservation that were never restored to the public

domain and were never opened to non-Indian

settlement, but which have passed from trust into fee

status under Congressional Acts other than those

examined by this Court in Hagen.

Did the United States Court of Appeals for the Tenth

Circuit err when it refused to reconsider its final

decision in Ute Indian Tribe v. Utah, 773 F.2d 1087

(10th Cir. 1985), cert. denied, 479 U.S. 994 (1986)

insofar as that decision addressed the "Indian country"

status of lands that were not addressed by this Court

in Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958, 127

L.Ed.2d 252 (1994) or by the Utah Supreme Court in

State v. Perank, 858 P.2d 927 (1992).

PARTIES TO THE PROCEEDINGS

The petition accurately lists the parties to the

proceedings. As noted in the petition, the State of Utah and

the Cities of Roosevelt and Duchesne, each of which is a

municipal corporation, were defendants in the proceedings

below.

Although the Tenth Circuit’s decision in Ute Indian

Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997), affects the

State of Utah as much as, or more than, Duchesne and Uintah

Counties, the State has not petitioned this Court, nor has it

joined in the Counties’ petition, for a writ of certiorari to

review the Tenth Circuit’s decision.

Similarly, neither the City of Roosevelt nor the City

of Duchesne has petitioned this Court, or joined in the

Counties’ petition, for a writ of certiorari to review the Tenth

Circuit’s most recent decision in Ute Indian Tribe v. Utah.

ili

TABLE OF CONTENTS

eet it i

Pate 0) Ob Prcnsetah kc 22a See ooo en ii

Aged oe ene x ili

Peemne Si CO OE ho ks Oeidicdsa SS... l

The Uintah Valley Reservation .................... l

The Uncompahgre Reservation .................... 2

Opening of the Uintah Valley Reservation ............ 3

Opening of the Uncompahgre Reservation............. 5

Sear amee Damgiy..... eS 6

ES Ue ko so oe nc ene eccecn 7

ERE SE 2S ee ee ey 9

a ae See as ae ee 10

SS SS SE 1]

I ot 0, os Se be 14

REASONS WHY THIS COURT

SHOULD DENY THE PETITION

a | 15

I. Ute Indian Tribe V is in accord

with this Court’s previous reservation-

diminishment decisions, including

EES i ee 17

A. Ute Indian Tribe V correctly recognizes that

this Court found that the Uintah Valley

Reservation continues to exist, albeit

RE 17

B. Ute Indian Tribe V correctly holds that all

lands on the Uintah Valley Reservation that

were not restored to the public domain remain

"TOGA QOUMIE oo vsewigin poe oe MRR OR 21

Il. Ute Indian Tribe V does not conflict with

any State Supreme Court decision, including

SMG D. FUE inn ic Oh aR e 4 LER ERNS 24

III. The petitioners’ attempt to use this Court’s

supervisory authority to address issues that

this Court did not address in Hagen and that

the Utah Supreme Court expressly declined to

address in Perank should be rejected ........... 26

CONCLUSION 2 once ec gts oN VR RGR Pees 29

TABLE OF AUTHORITIES

Cases: Page

95 S.Ct. 1082, 43 L.Ed.2d 300 fee ree ie va CoS 3,19,20

Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958,

par meee aoe CLO ACE oh 5) 2. passim

BEE Ee ONO 6 i ks, Be nk oe 19

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584,

97 S.Ct. 1361, 51 L.Ed.2d 660 Sempre. 2ué. rey LY 19,20

Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424,

dhs wees earth icmics, BOSE OTT OUR 19,20

Solem v. Bartlett, 465 U.S. 473,

104 S.Ct. 1161, 79 L.Ed.2d 443 | SRS eae 6,19,23

State v. Hagen, 802 P.2d 745 (Utah Se See 8

State v. Hagen, 858 P.2d 925 (Utah SE 0s wc ea ol os 9

State v. Perank, 858 P.2d 927 (ame $9e2) Se passim

Utah v. Ute Indian Tribe, 479 U.S. 994,

107 S.Ct. 596, 93 L.Ed.2d 596 Sra. PS SSeS 7,23

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

rae We OR NE eh ha | 6

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

Go NU ic ca a, ake passim

Ute Indian Tribe v. Utah, 935 F.Supp. 1473

Cg i ag, SEES ne CAs 3 13,14,22

Constitution, statutes and regulations:

Constitution of the Ute Indian Tribe .................. ]

aah OE eh BG As et TED nc cece ecces 2

Act of June 7, 1897, ch. 3, 30 Stat. 62, 87,

ieee. G21 COs GRIGG) AW aed. Oe 5

Act of Mar. 1, 1899, ch. 324, 30 Stat. 924, 940-41,

ee ee Serr ere ee re 5

Act of May 27, 1902, ch. 888, § 1, 32 Stat. 263 ......... 3

Act of Mar. 3, 1903, ch. 994, 32 Stat. 982 ............. 3

Act of Apr. 21, 1904, ch. 1402, 33 Stat. 207-208 ........ 3

Act of Mar. 3, 1905, ch. 1479, 33 Stat. 1048 ........... 4

Act of May 5, 1864, ch. 77, § 2, 13 Stat. 363 .......... |

General Allotment Act, Act of Feb. 8, 1887, ©

a. FE a ee oka eS AOE eC. ee. 8. 2,14

Indian Land Consolidation Act of 1983,

Pub. L. No. 47-459, codified at

Dee BeeE ori 1b bee bee TL eee eds 13,16

Indian Reorganization Act, Act of June 18, 1934,

ch. 576, 48 Stat. 984, codified at

me Bie. SEAGI-GTD 08S ie 9) SR Sek OS. 1,12

RO Ghee SPEED. 6 ov WR. PT PL PO passim

Ute Termination and Supervision Act, Act of Aug. 27,

1954, Pub. L. No. 97-678, ch. 1009, 68 Stat. 868,

codified at 25 U.S.C. §§ 677-677aa_..........4.. 13,16

Executive Order No. 38-1, reprinted in 1 Charles Kappler,

Indian Affairs: Laws and Treaties 900 (2d ed. 1904) ..... ]

Executive Order of Jan. 5, 1882, reprinted in 1 Charles

Kappler, Indian Affairs: Laws and Treaties 901

SE MUU a «0 be ee bee kde ENOL Seeders Ws 2

Order of Restoration, 10 Fed. Reg. 12409

EE, EE a cad ce ek nee ME ee bo e's 12

Public Land Order No. 2713, 18 Fed. Reg. 426

A, ME. , and odo kid wie ewan ee eeiee § 3 wis A

Public Land Order No. 1310, 21 Fed. Reg. 5015

a 6 a's -a-w dw aid wk OR UA e WS ok kOe eee f 12

Public Land Order No. 2002, 24 Fed. Reg. 8175

OD brug Soe a eae kee Oe kp hb ae i ee 12

Vii

Public Land Order No. 2269, 26 Fed. Reg. 1718

I ea ie 12

Proclamation of July 14, 1905, 34 Stat. 31 OM 8 2” EAR ere 4

Proclamation of July 14, 1905, 34 Stat.3120 ........... 4

Treaty of March 2, 1868, 15 Stat. 619, II Kapp. 990

Cec ict cia tet 2

Miscellaneous:

H.R. Doc. No. 191, 54th Cong., Ist Sess. (1896) ......... 5

H.R. Doc. No. 33, 85th Cong., Ist Sess. 5 (1903) ........ 4

O’Neil, The Reluctant Suzerainty: the Uintah and Ouray

Reservation, 39 Utah Historical Quarterly 129

Peete ass te doe lk. but. bows ees... 5. l

Report of the Commissioner of Indian Affairs t,o oer 2

Report of the Commissioner of Indian Affairs }. 5

S. Doc. No. 161, 54th Cong., Ist Sess. (1896) .......... 4

S. Rep. No. 450, 53d Cong., 2d Sess. 4027 hr 5

ns an 2. A ate pe ene ae 28

STATEMENT OF THE CASE

The Uintah and Ouray Indian Reservation consists of

two separate but contiguous tracts of land set aside in the

nineteenth century for the use and occupancy of the ancestors

of the people who comprise the present-day Ute Indian

Tribe. '

The Uintah Valley Reservation

On October 3, 1861, President Lincoln established the

Uintah Valley Reservation along a river in the Territory of

Utah then known as the Uinta, but now referred to as the

Duchesne. See Executive Order No. 38-1, reprinted in |

Charles J. Kappler, Jndian Affairs: Laws and Treaties 900 (2d

ed. 1904). Congress confirmed the President’s action in

1864, providing that the land in question was "set apart for

the permanent and exclusive occupation of such of the

different tribes of Indians of the [Utah] territory as may be

induced to inhabit the same." Act of May 5, 1864, ch. 77, §

2, 13 Stat. 63. Between 1866 and 1878, the members of the

Uintah Band of Ute Indians (who were indigenous to what is

now known as the "Wasatch Front" in the State of Utah)

gradually moved onto the Uintah Valley Reservation and

made it their permanent home. See O’Neil, The Reluctant

Suzerainty: the Uintah and Ouray Reservation, 39 Utah

Historical Quarterly 129, 131 (Spring 1971).

During the same time that the Uintah Utes were

' In 1938, under the authority of the Indian Reorganization Act, Act

of June 18, 1934, ch. 576, 48 Stat. 984, codified at 25 U.S.C. §§ 461-479,

three formerly autonomous bands of Ute Indians (the Uintahs,

Uncompahgres and Whiterivers) united under a single constitution to form

the Ute Indian Tribe. See Preamble, Constitution of the Ute Indian Tribe

of the Uintah and Ouray Indian Reservation.

removing to the Uintah Valley Reservation, the Utes in

Colorado were facing pressure of "firestorm proportions", see

Ute Indian Tribe v. Uiah, 521 F.Supp. 1072, 1096 (D. Utah

1975), aff'd in relevant part, 773 F.2d 1087 (10th Cir. 1985),

cert. denied, 479 U.S. 994 (1986), to abandon their large

reservation, which had been created by the Treaty of March

2, 1868, 15 Stat. 619, II Kapp. 990 (2d ed. 1904).

Ultimately, title to the Yamparka (now Whiteriver) Utes’ vast

reservation in western Colorado was extinguished and the 700

band members were moved at gunpoint to the Uintah Valley

Reservation in 1880, after 20 members of the band

participated in an attack on Indian agent Nathan Meeker and

his family. Jd. at 1097 & n.72. The government also secured

the consent of the Tabeguache (now Uncompahgre) Utes

(who inhabited the central portion of the Ute Reservation in

Colorado) to a removal agreement that was signed on March

6, 1880, and was ratified by Congress on June 15, 1880. See

Act of June 15, 1880, 21 Stat. 199.

The Uncompahgre Reservation

Originally, the government planned to resettle the

Uncompahgre Utes near the present location of Grand

Junction, Colorado. Instead, a federal commission selected

a large rectangular area of uninhabited and largely

uninhabitable land in eastern Utah bordering on Colorado’s

western boundary as the Uncompahgres’ new home. See

Report of the Commissioner of Indian Affairs, 1881, at 37.

By an Executive Order dated January 5, 1882, President

Arthur formally established those lands as an Indian

reservation for the use and occupancy of the Uncompahgre

Utes. See I Charles Kappler, Jndian Affairs: Laws and

Treaties 901 (2d ed. 1904).

Before the end of the nineteenth century, the Uintah

Valley and Uncompahgre Reservations - like many others -

became the subject of the "familiar forces" brought to bear by

"the desire of non-Indians to settle upon Reservation lands."

See DeCoteau v. District County Court, 420 U.S. 425, 431-

32, 95 S.Ct. 1082, 1086, 43 L.Ed.2d 300 (1975). Those

forces led to the passage in 1887 of the General Allotment

Act, which granted the President the authority "to allot

portions of reservation land to tribal members and, with tribal

consent, to sell the surplus lands to white settlers, with the

proceeds of those sales being dedicated to the Indians’

benefit." See DeCoteau, supra, 420 U.S. at 432, 95 S.Ct. at

1987 (citing Act of Feb. 8, 1887, ch. 119, 24 Stat. 388).

Opening of the Uintah Valley Reservation

Several bills were introduced during the last decade of

the nineteenth century to allot the Uintah Valley Reservation

and open the unallotted lands to non-Indian settlement. See

Hagen v. Utah, 510 U.S. 399, 402, 114 S.Ct. 958, 961, 127

L.Ed.2d 252 (1994). In part because the Uintah and

Whiteriver Utes steadfastly refused to surrender any portion

of their Reservation, allotment did not occur until the present

century. Jd.

In 1902, Congress passed an Act providing that, if a

majority of the adult male members of the Uintah and

Whiteriver bands consented, the Secretary of the Interior

should make allotments by October 1, 1903, out of the

Uintah Valley Reservation. The 1902 Act also provided that,

when the October 1, 1903, deadline for allotments passed,

"all the unallotted lands within said reservation shall be

restored to the public domain". 32 Stat. 263.

The allotments did not proceed as provided for by the

1902 Act and measures extending the time for opening the

Uintah Valley Reservation were enacted in 1903 and 1904.

See Act of Mar. 3, 1903, ch. 994, § 1, 32 Stat. 997-98; Act

of Apr. 21, 1904, ch. 1402, § 1, 33 Stat. 207-08. By the Act

of Mar. 3, 1905, ch. 1479, 33 Stat. 1048 (hereafter, "the 1905

Act"), Congress again deferred the time for opening the

unallotted lands on the Uintah Valley Reservation to public

entry, this time to September 1, 1905. Section 1, 33 Stat.

1069. The 1905 Act then specified "the manner of opening

such lands for settlement and entry, and for disposing of the

same." Ibid. Specifically, the 1905 Act provided that the

unallotted lands "shall be disposed of under the general

provisions of the homestead and townsite laws of the United

States." Ibid.’

Although the government failed to obtain the consent

of the Uintah and Whiteriver Utes to the allotment of their

lands and opening of the unallotted lands to non-Indian

settlement,’ President Theodore Roosevelt issued a

Proclamation on July 14, 1905, which declared that "the

unallotted lands in [the Uintah Valley] Reservation * * * will

on and after the 28th day of August, 1905 * * * be opened

to entry, settlement and disposition under the general

provisions of the homestead and townsite laws of the United

States." 34 Stat. 3120.

? In addition to extending the time of entry under the 1902 Act and

describing the entry process, the 1905 Act authorized the President to "set

apart and reserve” lands in the Reservation as a forest reserve prior to

opening the unallotted lands to settlement. 33 Stat. 1070. Pursuant to

this authority, on July 14, 1905, President Theodore Roosevelt issued a

proclamation designating some 1,010,000 acres within the Uintah Valley

Reservation as an addition to the Uintah National Forest Reserve.

Proclamation of July 14, 1905, 34 Stat. 3113, 3116.

> Only 82 of the 280 adult male Utes who were eligible to vote

consented to the allotment plan. See H.R. Doc. No. 33, 85th Cong., Ist

Sess. 5 (1903).

Allotment of the barren Uncompahgre Reservation

proceeded at a much more rapid pace than allotment and

opening of the comparatively more fertile Uintah Valley

Reservation. Three bills were introduced in 1894 providing

"for opening the Uncompahgre . . . reservation[]". See H.R.

4511, 6557; S.Rep.No. 450, 53d Cong., 2d Sess. 4027

(1894). Although these bills were not enacted, the Indian

Appropriations Act for the year included H.R. 6557 which

directed a presidential commission to allot the Uncompahgre

reservation and to open the unallotted lands "to entry under

the homestead and mineral laws of the United States." In

large part because there were insufficient agricultural lands

available on the Uncompahgre Reservation to comply with

the Act, the presidential commission’s attempts to carry out

the 1894 Act failed. See H.R. Doc. No. 191, 54th Cong., Ist

Sess. (1896); S. Doc. No. 161, 54th Cong., Ist Sess (1896).

Congress addressed the lack of sufficient agricultural

lands on the Uncompahgre Reservation in the Act of June 7,

1897, ch. 3, 30 Stat. 62, 87, I Kapp. 621 (2d ed. 1904). In

that Act, Congress directed the Secretary of the Interior to

allot agricultural lands on "the Uncompahgre and the Uintah

Reservation or elsewhere in [Utah]" to the Uncompahgres.

Id. Congress further directed that the unallotted lands on the

Uncompahgre Reservation "be open for location and entry

under all the lands laws of the United States" beginning on

April 1, 1898. Ibid. Eventually, by separate statute,

Congress confirmed 83 allotments that were made within the

Uncompahgre Reservation. see Act of Mar. 1, 1899, ch. 324,

30 Stat. 924, 940-41, I Kapp. 686 (2d ed. 1904). An

additional 584 Uncompahgre allotments, made on the Uintah

Valley Reservation, were approved in 1905. See Report of

the Commissioner of Indian Affairs, 1905, at 146.

Ute Indian Tribe J, I] and Ill

In 1975, the Ute Indian Tribe filed a declaratory

judgment action in the Federal District Court for the District

of Utah. Parties to the proceedings included the Ute Indian

Tribe, as plaintiff; the State of Utah as defendant-intervenor;

the Counties of Duchesne and Uintah; and the Cities of

Roosevelt and Duchesne. See Ute Indian Tribe v. Utah, 521

F.Supp. 1072 (D. Utah 1981), aff'd in relevant part, 773 F.2d

1087 (10th Cir. 1985), cert. denied 479 U.S. 994 (1986)

("Ute Indian Tribe I").

The issues litigated in Ute Indian Tribe I were (1)

whether, by various statutes, Congress intended to diminish

the Uintah Valley or Uncompahgre Reservations when those

reservations were opened to non-Indian settlement, and (2)

the geographic scope of the Tribe’s jurisdiction within the

original 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 Reservation,

including the national forest lands, remained largely intact.

See 521 F.Supp 1072. The Tribe and the State filed cross

appeals of the District Court’s decision to the United States

Court of Appeals for the Tenth Circuit.

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

Tenth Circuit affirmed in part and reversed in part the district

court’s findings in Ute Indian Tribe I, ruling that the Uintah

Valley Reservation had been diminished substantially by the

removal, from the Reservation, of lands that had been

restored to the public domain in 1905. See Ute Indian Tribe

v. Utah, 716 F.2d 1298 (10th Cir. 1983) ("Ute Indian Tribe

IT"). 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 neither the Uintah Valley nor the Uncompahgre

Reservations had been diminished, except for two parcels

whose status was not subsequently litigated. See 773 F.2d

1087 (10th Cir. 1985) (en banc) ("Ute Indian Tribe III").

The defendants sought review by this Court, but the writ of

certiorari was denied on December 1, 1996. See Utah v. Ute

Indian Tribe, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596

(1986). Following this Court’s denial of the petition for writ

of certiorari, the Tenth Circuit issued its mandate in Ute

Indian Tribe III on December 9, 1986.

Unhappy with this Court’s refusal to review the Tenth

Circuit’s decision, Duchesne County, proceeding under the

name of "the State", raised the boundary issue in the courts

of the State of Utah.

State v. n

In 1988, the County of Duchesne filed an information

against Robert P. Hagen, charging him with distribution of a

controlled substance (i.e., marijuana) for value, a third-degree

felony. The alleged offense took place on fee lands in

Myton, Utah, a community that is located within the original

exterior boundaries of the Uintah Valley Reservation and

which has a substantial Native American population. Hagen

entered a plea of guilty, but subsequently filed a motion to

arrest judgment and withdraw his plea, on the grounds that he

was Indian and the alleged offense took place in "Indian

country".*

* Indian country” includes "(a) all land within the limits of any

Indian reservation under the jurisdiction of the United States government,

notwithstanding the issuance of any patent, and, including rights-of-way

running through the reservation, (b) all dependent Indian communities

within the borders of the United States whether within the original or

subsequently acquired territory thereof, and whether within or without the

limits of a state, and (c) all Indian allotments, the Indian titles to which

have not been extinguished, including rights-of-way running through the

same.” 18 U.S.C. § 1151.

Following an evidentiary hearing, the trial court

denied Hagen’s motion to arrest judgment and withdraw his

plea. The court determined that Hagen was not an Indian for

purposes of criminal prosecution because he was not a

member of a federally recognized Indian tribe. The court

expressly declined to address the issue of whether the locus

of the crime was within "Indian country.”

On appeal, the Utah Court of Appeals ruled that the

trial court had applied the improper standard 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, 858

P.2d 925 (Utah 1992). For that reason alone, the Utah Court

of Appeals reversed Hagen’s conviction. /d. at 747.°

The Utah Supreme Court declined to address Hagen’s

* Indeed, until it reached the Utah Supreme Court, the only issues

litigated in Hagen were whether Robert Hagen, whose only affiliation

with an Indian tribe is with a Tribe that is not federally recognized, was

an Indian for criminal jurisdiction purposes and whether the trial court

had 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 State v. Perank (discussed below), the

Utah Court of Appeals stated:

{t]he Tenth Circuit’s decision does not appear to hold

open any role for the state courts in refining its holding

in Ute Indian Tribe [III] . . . [W]e 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.

status as an Indian. Instead, on the basis of its decision in

State v. Perank, 858 P.2d 927 (Utah 1992), entered on the

same date, the court summarily ruled that the State had

properly prosecuted Robert Hagen because the offense with

which he was charged had been committed outside of "Indian

country". See State v. Hagen, 858 P.2d 925 (1992).

State v. Perank

State v. Perank arose in 1983 at a time when the

Tenth Circuit’s panel decision in Ute Indian Tribe II (finding

that the Uintah Valley Reservation had been diminished by

the exclusion, from "Indian country" status, of lands that had

been restored to the public domain under the 1902-1905

Acts) was the governing law. Clint Perank entered a guilty

plea to a charge of third-degree burglary in Myton, Utah. At

the time, Perank was not enrolled, nor was he eligible for

enrollment, 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. At a revocation-of-probation hearing

in 1986, after the Tenth Circuit, sitting en banc, had reversed

Ute Indian Tribe II, concluding that all lands within the

original boundaries of the Uintah Valley Reservation

remained "Indian country", see Ute Indian Tribe III, 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 "Indian country".

As stated by Justice Stewart:

[t]he only issue [decided by the Utah Supreme

Court in Perank] is whether the unallotted and

unreserved lands that were opened to entry in 1905 .

. are within the present boundaries of the [Uintah

Valley] Reservation.

State v. Perank, 858 P.2d 927, 934 (Utah 1992). After

examining the 1902-1905 Acts, the Utah Supreme Court

conclude[d] that operative statutory language that

restores reservation land to the public domain is

persuasive evidence of congressional intent fo

diminish the reservation as to the lands so restored.

State v. Perank, supra, 858 P.2d at 940. (emphasis added).

See also 858 P.2d at 952 ("we hold that the unallotted,

unreserved lands of the Uintah Reservation were restored to

the public domain by the [1902-1905 Acts] and that the

Reservation boundaries were diminished by that restoration.")

(emphasis added).

In making its ruling in Perank, the Utah Supreme

Court observed "that all parties agree that the Uintah

Reservation . . . continued to exist after 1905 as to the lands

allotted to the Indians and the lands reserved for tribal use."

858 P.2d at 934. The court also expressly disavowed any

intention to determine the "Indian country" status of lands on

the Uintah Valley Reservation that had been withdrawn as a

forest reserve or of the Uncompahgre Reservation. See 858

P.2d at 934 ("The legal status of the [Ashley and Uintah

National Forests] is not at issue here, nor is the legal status

of the Uncompahgre Reservation . . . ").

Hagen v. Utah

In 1994, this Court granted a petition for writ of

certiorari "to resolve the direct conflict between the[]

decisions of the Tenth Circuit and the Utah Supreme Court

on the question whether the Uintah Reservation has been

diminished." Hagen v. Utah, 510 U.S. 399, 409, 114 S.Ct.

958, 964, 127 L.Ed.2d 252 (1994). After examining the

1902-1905 Acts by which the unallotted lands on the Uintah

Valley Reservation were opened to non-Indian settlement,

this Court affirmed the limited ruling of the Utah Supreme

Court, stating:

the restoration of unallotted reservation lands to the

public domain evidences a congressional intent with

respect to those lands inconsistent with the

continuation of reservation status. Thus, the existence

of such language in the operative section of a surplus

land Act indicates that the Act diminished the

reservation.

510 U.S. at 414, 114 S.Ct. at 967 (emphasis added).°

Ute Indian Tribe IV

Following issuance of this Court’s decision in Hagen

v. Utah, the State of Utah, joined by the petitioner Counties,

asked the United States District Court for the District of Utah

to dissolve a preliminary injunction that it had issued on

September 2, 1992, nunc pro tunc August 2, 1992, in the

renewed Ute Indian Tribe litigation.’ In support of their

® Without explanation, neither this Court in Hagen nor the Utah

Supreme Court in Perank considered whether Myton, Utah, which has a

substantial Native American population, might be "Indian country" under

18 U.S.C. § 1151(c) as being a "dependent Indian community”

” The preliminary injunction prohibited the State and its political

subdivisions from interfering in the Tribe’s exercise of governmental

authority within the boundaries of the Uintah and Ouray Reservation, as

those boundaries had been confirmed by the Tenth Circuit’s decision in

Ute Indian Tribe v. Utah, 773 F.2d 1087 (1985), cert. denied, 479 U.S.

(continued...)

motion, and notwithstanding the express language used by

this Court and the Utah Supreme Court, the State and

Counties argued that Hagen effected a termination of the

Uintah Valley Reservation, with the affect that all lands on

the Reservation lost their "Indian country" status when they

passed from trust to fee status. The Tribe, supported by the

United States, asserted that in Hagen this Court had merely

found that the Uintah Valley Reservation had been

diminished by the exclusion therefrom of those lands that

were opened to non-Indian settlement under the 1902-1905

Acts, and which had not been subsequently restored to tribal

ownership by congressional and administrative action.*

Observing that this Court had concluded only that the Uintah

Valley Reservation had been diminished, the Tribe asserted

7(...continued)

994 (1986), pending the conclusion of this Court’s disposition of Robert

Hagen’s petition for a writ of certiorari and the conclusion in the district

court of the Ute Indian Tribe’s motion for a permanent injunction

preventing the Ute Indian Tribe defendants from enforcing the Utah

Supreme Court’s decision in Perank. The district court’s injunction was

modified once "to allow the State and Local Defendants to prosecute

felony crimes occurring on lands within the original boundaries of the

Uintah Valley Reservation which are not ’Indian Country’, as defined by

18 U.S.C. § 1151". Order, Ute Indian Tribe v. Utah, unpublished, (D.

Utah May 2, 1994).

* At various times, pursuant mainly to the provisions of the Indian

Reorganization Act of 1934, the Secretary of the Interior has restored to

tribal ownership all of the unallotted acreage within the Uintah Valley

Reservation that remained unentered. See Order of Restoration, 10 Fed.

Reg. 12409 (Aug. 25, 1945); Public Land Order No. 2713, 18 Fed. Reg.

426 (Jan. 20, 1953); Public Land Order No. 1310, 21 Fed. Reg. 5015

(July 5, 1956); Public Land Order No. 2002, 24 Fed. Reg. 8175 (Oct. 8,

1959); Public Land Order No. 2269, 26 Fed. Reg. 1718 (Feb. 28, 1961).

Each of the tracts of land addressed in these Public Land Orders was

expressly “added to and made a part of the existing [Uintah and Ouray]

reservation." Jd.

that all fee lands except those opened to settlement under the

1902-1905 Acts remained "Indian country".’

In deciding whether to grant the defendants’ motion,

the district court examined the conflicts between this Court’s

judgment in Hagen, the Utah Supreme Court’s decision in

Perank, and the Tenth Circuit’s judgment in Ute Indian Tribe

III and concluded that

Hagen .. . effectively determined that the Uintah

Reservation was diminished to the extent of the

unallotted and unreserved lands that were opened to

entry in 1905. To the extent that those lands were

not later restored to tribal ownership and jurisdiction

by subsequent congressional and administrative action,

they ceased to have reservation status in 1905 and are

no longer found within "Indian country" within the

meaning of 18 U.S.C. § 1151. To that extent, Hagen

stands in direct conflict with the Tenth Circuit's en

banc ruling in Ute Indian Tribe. ... At the same

time, the Uintah Reservation, as an entity, continued

° As discussed below, there are four categories of fee land on the

Uintah Valley Reservation: (1) lands opened to settlement under the

1902-1905 Acts: (2) allotments that were made to individual Indians in

1905 that have since passed into fee status; (3) lands that were held in

trust in 1905, but that passed into fee status in 1956 under the terms of

the Ute Termination and Supervision Act, Act of Aug. 27, 1954, Pub. L.

No. 97-678, ch. 1009, 68 Stat. 868, codified at 25 U.S.C. §§ 677-677aa;

and (4) lands that were held in trust after the Reservation was opened in

1905 but that since have been exchanged into fee status by the Tribe for

then-fee (now trust) lands under the terms of the Indian Land

Consolidation Act of 1983, Pub. L. No. 47-459, 96 Stat. 2517, codified

at 25 U.S.C. §§ 2201-11. In Hagen, only the first category was

considered by this Court, and was determined to be outside of "Indian

country". See 510 U.S. at 414, 114 S.Ct. at 967. It is the status of the

latter three categories that the petitioners seek to put at issue in these

proceedings.

to exist after 1905 as to allotted and reserved lands

not "opened" and as to lands later restored to the

reservation by Congress or the Department of the

Interior. . .

935 F.Supp. 1473, 1497 (D. Utah 1996) (emphasis added).

The district court then undertook a detailed examination of

the statutes by which the three disputed categories of fee land

on the Uintah Valley Reservation that were not examined in

Hagen or Perank passed from trust to fee status. See 935

F.Supp. at 1496-1505. The district court concluded that none

of the statutes under which the status of the disputed

categories of fee lands was changed expressed a

Congressional intent to remove the affected lands from

"Indian country". See id.

To the limited extent that it found that Hagen did

directly conflict with Ute Indian Tribe III, the district court

modified its injunction. Under the modified injunction, the

State of Utah and petitioner Counties are authorized to

prosecute felony crimes occurring on lands which are not

"Indian Country" [including] those unallotted and unreserved

lands of the Uintah Reservation that were opened to entry in

1905 ...". 935 F.Supp. at 1531.

Ute Indian Tribe V

: The Court of Appeals concurred with the District

Court’s application of this Court’s ruling in Hagen:

we agree with the district court that Hagen did

not effectively overrule the entire judgment in

Ute Indian Tribe III, including our holdings

concerning the National Forest Lands and the

Uncompahgre Reservation. Further, we agree

that Hagen's only effect was to reduce (and

not terminate) the boundaries of the Uintah

Valley Reservation. . ..

Ute Indian Tribe v. Utah, 114 F.3d 1513, 1528 (10th Cir.

1997) ("Ute Indian Tribe V"). Accordingly, the Tenth Circuit

declined to withdraw its earlier mandate and, instead,

modified its mandate to exclude from "Indian country" those

"lands within the. original [Uintah Valley] reservation

boundaries [that were] unallotted, opened to non-Indian

settlement under the 1902-1905 legislation, and not thereafter

returned to tribal ownership.” /d.

In so ruling, the Tenth Circuit explicitly stated:

our decision to modify Ute Indian Tribe II]

does not result from the desire to correct a

prior erroneous judgment, but rather from the

need to reconcile our decision with a directly

conflicting decision of the Supreme Court.

Id. at 1529.

In their petition for a writ of certiorari, the Counties

ask this Court to expand this Court’s judgment in Hagen and

completely overrule the Tenth Circuit’s 1985 judgment in Ute

Indian Tribe III.

REASONS WHY THIS COURT SHOULD DENY

THE PETITION FOR WRIT OF CERTIORARI

The crux of the dispute presented to this Court in the

petition for a writ of certiorari is whether the petitioners

should be permitted to expand this Court’s decision in Hagen

v. Utah to exclude from the Uintah Valley Reservation lands

that passed from trust to fee status under Acts other than

those considered by this Court in Hagen. Specifically at

issue is whether

l. lands that were allotted to individual Indians

in 1905 and that since have passed into fee

Status under the General Allotment Act, Act of

Feb. 8, 1887, ch. 119, 24 Stat. 388;

y lands that were held in trust after 1905 but

were later apportioned to the "Mixed-Blood"

Utes under the Ute Termination and

Supervision Act, Act of Aug. 27, 1954, Pub.L.

No. 97-678, ch. 1009, 68 Stat. 868, codified at

25 U.S.C. §§ 677-677aa; and

3. lands that were held in trust after the

Reservation was opened in 1905 but that since

have been exchanged into fee status by the

Ute Indian Tribe for then-fee (now trust) lands

in an effort to consolidate the Tribe’s land

holdings under the Indian Land Consolidation

Act of 1983, Pub.L. No. 47-459, 96 Stat.

2517, codified at 25 U.S.C. §§ 2201-11

remain "Indian country" as being "lands within the limits of

an Indian reservation" under 18 U.S.C. § 1151(a).

In Ute Indian Tribe V, the Tenth Circuit affirmed the

district court’s detailed analysis of the statutes that concern

each of these three categories of land and its conclusion that

none of the statutes expresses a congressional intent to

remove the various categories of land from the Uintah Valley

Reservation. See 114 F.3d at 1528. Accordingly, the Tenth

Circuit ruled that the lands embraced within each category

remain "Indian country".

Throughout their petition for a writ of certiorari, the

petitioners suggest that Ute Indian Tribe V conflicts with this

Court’s decision in Hagen v. Utah, see Petition for Writ of

Certiorari at 14-20 [hereafter, "Pet. Br. at __"] and the Utah

Supreme Court’s decision in State v. Perank. See Pet. Br. at

21-29. However, a reading of the relevant decisions

demonstrates that the alleged conflicts simply do not exist.

Moreover, the petitioners ultimately admit that they do not

meet this Court’s criteria for being granted a petition for writ

of certiorari. See Pet. Br. at 30. Thus, in desperation, they

appeal to this Court for "some type of appropriate relief." Jd.

For the reasons discussed below, this Court should

deny the petition for a writ of certiorari and should also deny

the petitioners’ request for "some [unspecified] type of . . .

relief."

I. Ute Indian Tribe V Is in Accord With This

Court’sPrevious Reservation-Diminishment

Decisions, Including Hagen v. Utah.

The petitioners assert that this Court should grant the

petition for writ of certiorari for the reason that the Tenth

Circuit’s decision in Ute Indian Tribe V conflicts with this

Court’s decision in Hagen v. Utah. In making this argument,

the petitioners misapprehend this Court’s previous

reservation-diminishment decisions, generally, and this

Court’s decision in Hagen, specifically.

AL Ute Indian Tribe V Correctly Recognizes

That This Court Found that the Uintah

Valley Reservation Continues to Exist,

Albeit Diminished in Size.

The petitioners suggest that the Tenth Circuit erred

when it failed to recognize that, when this Court

characterized the Uintah Valley Reservation as being

"diminished" after 1905, it, in fact, meant that the

Reservation had been "terminated." See Pet. Br. at 14-20.

The petitioners’ argument attributes a lack of grammatical

precision to this Court that is unwarranted.

In Hagen v. Utah, this Court ruled 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 reservation status. Thus, the existence

of such language in the operative section of a surplus

land Act indicates that the Act diminished the

reservation.

Hagen v. Utah, 510 U.S. at 414, 114 S.Ct. at 967 (emphasis

added). In analyzing this language, the Tenth Circuit found

that this Court

did not decide that the 1902-1905 allotment

legislation completely disestablished the Uintah

Valley Reservation, erasing its outer boundaries and

rendering [25 U.S.C.] § 1151(a) inapplicable to the

three disputed categories of [fee] lands.

Ute Indian Tribe V, 114 F.3d at 1530. Instead, the Tenth

Circuit found that:

[t]he Court stated that the Uintah Valley Reservation

had been ‘diminished’ - not “disestablished,”

‘eliminated,’ or °terminated.’ Moreover, the

diminishment was only ’with respect to those lands’

that had been restored to the public domain under the

1902-1905 legislation.

Id. On that basis, the Tenth Circuit concluded that "Hagen

did not erase the boundaries of the Uintah Valley

Reservation". Based upon the district court’s analysis of the

Statutes by which the three disputed categories of fee land

passed into non-trust status, the Tenth Circuit further

determined that "the current ’limits of [the] reservation’ . . .

embrace the three categories of non-trust lands at issue."

Ibid. The Tenth Circuit’s determinations are entirely

consistent with this Court’s precedents.

Despite the petitioners’ suggestion to the contrary, in

only one of this Court’s reservation-diminishment decisions

has this Court found that a surplus land act had the effect of

terminating, in its entirety, the existence of an Indian

reservation. See DeCoteau v. District County Court, 420

U.S. 425, 426, 95 S.Ct. 1082, 1084, 43 L.Ed.2d 300 (1975)

(finding that an 1891 Act "terminated" the Lake Traverse

Indian Reservation). In every other instance where this Court

has examined a surplus land act, it has found either that (1)

Congress did not intend to affect the "Indian country" status

of the opened lands, see Solem v. Bartlett, 465 U.S. 463, 481,

104 S.Ct. 1161, 1171, 79 L.Ed.2d 443 (1984) (Cheyenne

River Sioux Reservation "was not diminished" by the Act of

May 29, 1908); Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct.

2245, 2258, 37 L.Ed.2d 92 (1973) (Klamath River

Reservation "was not terminated" by 1892 Act); Seymour v.

Superintendent, 368 U.S. 351, 355, 82 S.Ct. 424, 427, 7

L.Ed.2d (1962) (1906 Act did not "destroy the existence of

the diminished Colville Indian Reservation"), or that (2)

Congress intended to diminish the boundaries of the affected

reservation by removing from the existing reservation those

lands that were opened to non-Indian settlement. See Hagen

v. Utan, supra, 510 U.S. at 421, 114 S.Ct. at 970 (Uintah

Indian Reservation "has been diminished by Congress");

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 614, 97 S.Ct.

1361, 1377, 51 L.Ed.2d 660 (1977) (by various Acts,

Congress intended "to change the boundaries of the original

1889 Rosebud Reservation").'

Notwithstanding this Court’s clear precedent, the

petitioners argue that DeCoteau establishes a per se rule from

which the Tenth Circuit deviated in Ute Indian Tribe V.

With DeCoteau as their lone and questionable benchmark, the

petitioners argue that this Court’s conclusion that the Uintah

Valley Reservation was diminished by the 1902-1905 Acts,

in fact means that the Reservation was terminated and that

the only lands within the Uintah Valley Reservation that

remain "Indian country" are those lands that are held in trust

Status. See Pet. Br. at 14-20.

The petitioners’ argument ignores the clear language

of this Court’s precedents. When this Court determines that

an Indian reservation has, or examines whether an Indian

reservation may have, been terminated, in its entirety, so that

the only remaining "Indian country" consists of trust lands,

this Court uses clear language to that effect. E g., DeCoteau

v. District County Court, supra, 420 U.S. at 426, 95 S.Ct.

1082 (reservation was “terminated"); Seymour y.

Superintendent, 368 U.S. at 355, 82 S.Ct. at 427 (North Half

of reservation was "wiped out"); id. (existence of South Half

of reservation was not "destroy[ed]").

In Rosebud Sioux Tribe, the Court acknowledged that

it knows the difference between a finding that a reservation

has been diminished and a finding that a reservation has been

extinguished:

unlike the situation in DeCoteau, we are not

faced with an Act which, if it disestablished

'° The Court also has summari!y concluded that language providing

that the North Half of the Colville Indian Reservation should be "vacated

and restored to the public domain" had the effect of "wiping out" that

section of the Colville Reservation. See Seymour v. Superintendent,

supra, 368 U.S. at 355, 82 S.Ct. at 427 (emphasis added).

the area under question, would terminate the

entire reservation.

430 U.S. at 598, n.20, 97 S.Ct. at 1368, n.20 (emphasis

added). In Hagen, the Court did not state that the Uintah

Valley Reservation had been terminated. Rather, as the

Tenth Circuit acknowledged, see 114 F.3d at 1530, it stated

clearly and unequivocally that the Reservation continues to

exist, albeit diminished in size. See 510 S.Ct. at 421, 114

S.Ct. at 970 ("[w]e conclude that the Uintah Indian

Reservation has been diminished by Congress."). See also

510 U.S. at 432, 114 S.Ct. at 976 (Blackmun, J., dissenting)

(“the Uintah Valley Reservation unquestionably survived the

opening. . .") (emphasis added). Accord State v. Perank, 858

P.2d at 934 (“all parties agree that the Uintah Reservation .

. . continued to exist after 1905 as to the lands allotted to the

Indians and the lands reserved for tribal use.").

Because both this Court and the Utah Supreme Court

found that the Uintah Valley Reservation continued to exist

after 1905, the Tenth Circuit was correct in rejecting the

petitioners’ argument that lands that passed out of fee status

pursuant to statutes other than the 1902-1905 Acts are no

longer "Indian country". Accordingly, the petition for a writ

of certiorari to review Ute Indian Tribe V should be denied.

B. Ute Indian Tribe V Correctly Holds That all

Lands on the Uintah Valley Reservation

That Were Not Restored to the Public

Domain Remain "Indian country".

In an effort to persuade this Court to grant their

petition for a writ of certiorari, the petitioners erroneously

characterize the Tenth Circuit’s decision in Ute Indian Tribe

V as being unique among reservation diminishment cases in

that it "leave[s] substantial non-Indian fee lands within

Original reservation boundaries after an area had been

restored to the public domain." Petitioners’ Br. at 16

(emphasis in original). Again, the petitioners’ assertion

attempts to alter the history of land ownership on the Uintah

Valley Reservation and mischaracterizes the Tenth Circuit’s

ruling in Ute Indian Tribe V.

When this Court decided Hagen v. Utah, it determined

that language in the operative section of a surplus land act

"restor[ing] unallotted reservation lands to the public domain"

had the talismanic effect of diminishing the affected

reservation "with respect to those lands [so restored]". See

Hagen v. Utah, supra, 510 U.S. at 414, 114 S.Ct. at 967. As

the district court correctly noted, see Ute Indian Tribe IV,

935 F.Supp at 1501-05, and the Tenth Circuit affirmed, see

Ute Indian Tribe V, 114 F.3d at 1528, none of the disputed

fee lands was ever "restored to the public domain." Rather,

all of those lands were included as trust lands within the

diminished Uintah Valley Reservation as it existed in 1905,

after the unallotted lands on the Reservation were opened to

non-Indian settlement.

The lands within the disputed categories were

transferred from trust to fee status under the authority of

Statutes other than the 1902-1905 Acts, mone of which

contains the talismanic phrase "restored to the public

domain". See Ute Indian Tribe IV, 935 F.Supp. at 1501-05.

Neither this Court nor the Utah Supreme Court has examined

the effect that those other statutes had on the "Indian

country" status of the disputed fee lands.

In determining whether, and to what extent, an

Indian reservation has been diminished:

[t]he first and governing principle is that only

Congress can divest a reservation of its land

and diminish its boundaries. Once a block of

land is set aside for an Indian Reservation and

no matter what happens to the title of

individual plots within the area, the entire

block retains its reservation status unless

Congress explicitly indicates otherwise.

Solem v. Bartlett, 465 U.S. at 470, 104 S.Ct. at 1166. The

district court applied this rule when it determined that the

three disputed categories of fee land on the Uintah Valley

Reservation remain "Indian country" under 18 U.S.C. §

1511(a), as being lands "within the limits of an Indian

reservation." See 935 F.Supp. at 1496-1505. In affirming

the district court’s analysis and conclusion, the Tenth Circuit

correctly determined that:

3 Hagen directly conflicts with Ute Indian Tribe

III, insofar as that decision held that those

lands restored to the public domain under the

1902-1905 Acts remained "Indian country";

but that

2. Because Hagen did not (because it did not

need to) address the "Indian country" status of

the three disputed categories of fee land (i.e.,

those lands that passed from trust to fee status

under statutes other than the 1902-1905 Acts),

Hagen does not directly conflict with Ute

Indian Tribe III, insofar as that decision held

that the latter three categories of fee land

remain "Indian country".

See 114 F.3d at 1528.

Because neither this Court nor the Utah Supreme

Court has ever examined the effect that the General

Allotment Act, the Ute Termination and Supervision Act, and

the Indian Land Consolidation Act had on the "Indian

country" status of lands that passed from trust to fee status

under there authority of those Acts, there can be no conflict

between the Tenth Circuit’s decision with respect to those

lands and any decision of this Court or of the Utah Supreme

Court. The absence of any conflict between Ute Indian Tribe

V and any decision of this Court or of any State supreme

court militates in favor of this Court denying the petition for

writ of certiorari.

Il. Ute Indian Tribe V Does Not Conflict With

Any State Supreme Court Decision,

Including State v. Perank.

The petitioners suggest that the Tenth Circuit’s refusal

to conclude that all fee lands within the Uintah Valley

Reservation are no longer within "Indian country" conflicts

with the Utah Supreme Court’s ruling in State v. Perank, 858

P.2d 927 (Utah 1992). Again, the petitioners misstate a

judicial ruling.

In Perank, the limited question before the Utah

Supreme Court was "whether the unallotted and unreserved

lands that were opened to entry in 1905 . . . are within the

present boundaries of the [Uintah Valley] Reservation." See

858 P.2d at 934. In answering that question, the Utah

Supreme Court analyzed the 1902-1905 Acts that opened the

unallotted lands on the Uintah Valley Reservation to non-

Indian settlement and

conclude[d] that operative statutory language

that restores reservation land to the public

domain is _ persuasive evidence of

congressional intent fo diminish the

reservation as to the land so restored.

858 P.2d at 940 (emphasis added). The conclusion of the

Utah Supreme Court is expressed in functionally identical

language to the conclusion that this Court reached in Hagen,

to wit:

[w]e 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 reservation status. Thus, the

existence of such language in the operative

section of a surplus land Act indicates that the

Act diminished the reservation.

510 U.S. at 414, 114 S.Ct. at 967 (emphasis added). As

discussed in Part I(A), above, the Tenth Circuit correctly

applied this Court’s (and the Utah Supreme Court’s

analogous) conclusion when it rejected the petitioners’

argument that a diminished reservation equates to a

terminated reservation. Consistent with Hagen (and with

Perank), the Tenth Circuit modified its 1985 mandate by

excluding from "Indian country" those lands on the Uintah

Valley Reservation that were restored to the public domain

under the 1902-1905 Acts. Because the Tenth Circuit’s

actions are completely consistent with this Court’s holding in

Hagen (and with the Utah Supreme Court’s comparable

ruling in Perank), the petition for a writ of certiorari to

review Ute Indian Tribe V should be denied.

Ill. The Petitioners’ Attempt to Use this

Court’s Supervisory Authority to Address

Issues that this Court Did Not Address in

Hagen and that the Utah Supreme Court

Expressly Declined to Address in Perank

Should be Rejected.

On September 17, /985, the Tenth Circuit entered its

judgment in Ute Indian Tribe III. In that judgment, the

Tenth Circuit ruled that lands set aside from the Uintah

Valley Reservation as a national forest and all lands within

the Uncompahgre Reservation remained "Indian country".

See 773 F.2d at 1089-90 (National Forest); 773 F.2d at 1090-

93 (Uncompahgre Reservation). The Counties (at that time,

joined by the State of Utah) petitioned this Court for a writ

of certiorari to review, among other things, the Tenth

Circuit’s decision with respect to the national forest lands and

Uncompahgre Reservation. This Court denied the Counties’

petition on December 1, 1996. See Utah v. Ute Indian Tribe,

479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986).

More than 10 years after Ute Indian T; ribe III was

entered as a final judgment, the Counties asked the district

court and, later, a panel of the Tenth Circuit to overrule the

Tenth Circuit’s en banc decision that the national forest lands

and the Uncompahgre Reservation remain Indian country. In

declining the Counties’ request to upset a judgment that had

been final for more than a decade, the Tenth Circuit correctly

observed that this Court had not addressed the status of the

national forest lands or the Uncompahgre Reservation in

Hagen, See 114 F.3d at 1528-29."" The court then went on

" Similarly, the Utah Supreme Court expressly disavowed any

intention to determine the "Indian country” status of those lands in State

v. Perank. See 858 P.2d at 934 ("The legal status of the [Ashley and

(continued...)

to declare Ute Indian Tribe II] to be, and to have been for

more than 12 years, a final judgment (a fact that the

petitioners have been unable to accept for more than a

decade). See 114 F.3d at 1521. Because Ute Indian Tribe

III was no longer sub judice when this Court published its

decision in Hagen, the Tenth Circuit found that the change in

the law effected by Hagen could not be used to "reopen the

door already closed". Jd. at 1521, quoting James B. Beam

Distilling Co. v. Georgia, 501 U.S. 529, 541, 111 S.Ct. 2439,

2446, 115 L.Ed.2d 481 (1991). Accordingly, the Tenth

Circuit declined to withdraw its 1985 mandate in its entirety,

finding that:

[t]o the extent that Ute Indian Tribe LI]

decided matters not addressed in Hagen,

finality requires those decisions to remain

undisturbed. Thus, we modify our earlier

judgment only to the extent that it directly

conflicts with the holding in Hagen.

114 F.2d at 1527." The Tenth Circuit expressly stated that

its decision to modify the mandate in Ute Indian Tribe III

"does not result from the desire to correct a prior erroneous

judgment, but rather from the need to reconcile our decision

with a directly conflicting decision of the Supreme Court."

Id. at 1528.

I. continued)

Uintah National Forests] is not at issue here, nor is the legal status of the

Uncompahgre Reservation.").

2 Under the Tenth Circuit’s modified mandate, and consistent with

this Court’s holding in Hagen v. Utah, ali fee lands, except those that

were restored to the public domain pursuant to the 1902-1905 Acts,

remain "Indian country". Ute Indian Tribe V, 114 F.3d at 1529-31.

Through their petition for a writ of certiorari, the

petitioners are asking this Court to reopen a door that has

been closed for more than 10 years: they are asking this

Court to declare the national forest lands and the

Uncompahgre Reservation to be outside of "Indian country”.

See Pet. Br. at 14, n.6. This Court should decline the

Counties’ request, as did the Tenth Circuit.

This Court will grant a petition for a writ of certiorari

only for compelling reasons. See Sup. Ct. Rule 10. Those

reasons include when:

a United States court of appeals . . . has decided an

important federal question in a way that conflicts with

a decision by a state court of last resort. . . : or when

a United States court of appeals has decided . . . an

important federal question in a way that conflicts with

relevant decisions of this Court.

Id. at (a), (c). As discussed at n.11, above, neither this

Court, in Hagen, nor the Utah Supreme Court, in Perank,

addressed the status of the national forest lands or of the

Uncompahgre Reservation. Accordingly, there is no conflict

with Ute Indian Tribe III's holding regarding those lands and

any decision of this Court or of any state court of last resort,

and there is no basis for granting the petition for a writ of

certiorari under Sup. Ct. Rule 10(a) or (c).

More importantly, a petition for writ of certiorari

must be filed within 90 days after entry of the judgment

sought to be reviewed. See Sup. Ct. Rule 13(1). The last

court that addressed and decided the "Indian country" status

of the national forest lands and of the Uncompahgre

Reservation on the merits was the Tenth Circuit .. . in 1985

in Ute Indian Tribe III. Notwithstanding Sup. Ct. Rule

13(1), the petitioners have asked this Court to review that

decision not 90, but 4,098, days after the judgment was

entered. Pursuant to this Court’s rules, the petitioners’

request should be denied.

CONCLUSION

For more than 22 years, the petitioners have been

urging the federal and state courts to terminate the existence

of the Uintah Valley Reservation. Every court which has

heard the petitioners’ arguments - including the federal

district court for the District of Utah, the United States Court

of Appeals for the Tenth Circuit, the Utah Supreme Court,

and the Supreme Court of the United States -has rejected

those arguments and has found, instead, that the Uintah

Valley Reservation was merely diminished by the exclusion

therefrom of unallotted, opened lands of the Reservation that

were restored to the public domain.

Through their petition for a writ of certiorari, the

petitioners unabashedly seek to expand this Court’s ruling in

Hagen, and thereby realize the same result that they would

have achieved had any court accepted their argument that the

Uintah Valley Reservation was extinguished. The petitioners

simply should not be permitted to use this Court’s

supervisory powers to disturb a final judgment that was

entered more than 12 years ago.

In Hagen, this Court found that the Uintah Valley

Reservation was diminished by the restoration of unallotted

Indian lands to the public domain under the 1902-1905 Acts.

As a consequence of that ruling, the Ute Indian Tribe has lost

the authority to govern the conduct of its members on

hundreds of thousands of acres of land. The petitioners’

attempt to expand this Court’s ruling to a determination that

the Reservation was extinguished, an expansion that would

deprive the Tribe of the authority to govern its members’

conduct on millions of additional acres, should be rejected.

As the petitioners acknowledge, they do not qualify

for a writ of certiorari. See Pet. Br. at 30. In that respect,

the petition is accurate. Because the Tenth Circuit’s decision

in Ute Indian Tribe V is consistent with this Court’s

judgment in Hagen; this Court’s decisions in every other

reservation-diminishment case; and the Utah Supreme Court’s

opinion in State v. Perank, the petition for a writ of

certiorari to review Ute Indian Tribe V should be denied.

Respectfully submitted this 31st day of October, 1997.