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

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No. 97-570 JAN 5S 1998

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

DUCHESNE COUNTY, a political

subdivision of the State of Utah,

UINTAH COUNTY, 2 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.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

PETITIONERS’ REPLY TO RESPONSE

OF THE STATE OF UTAH

HERBERT WM. GILLESPIE Tom D. ToBIN

Duchesne County Attorney Counsel of Record

500 East 100 South TOBIN LAW OFFICEs, P.C.

P.O. Box 206 P.O. Box 730

Duchesne, UT 84021 422 Main Street

(435) 738-2435 Winner, South Dakota 57580

JOANN B. STRINGHAM (605) 842-2500

Uintah County Attorney

152 East 100 North

Vernal, UT 84078

(435) 781-5436

Witson - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Se siciise-quracnendingee

A. The Response of the State of Utah Confirms the

State’s Disagreement With the Decision of the

Tenth Circuit Court of Appeals -..........................

B. The Response of the State of Utah Specifically

Confirms That Future Negotiations Were Not

Intended to Affect the Compelling Reasons for

Granting the Petition for a Writ of Certiorari in

Ee ge aE es tin Ss hl NAT

ARGUMENT Scie nate aiitshdcnptchen catisnditiceciciars

I. THE SPECIFIC ARGUMENTS SUBMITTED

II.

BY THE STATE OF UTAH IN THE TENTH

CIRCUIT UNEQUIVOCALLY SUPPORT THE

HISTORIC RESERVATION BOUNDARY

DISESTABLISHMENT RECOGNIZED IN

6 patil ett 08 BERT Le OT

THE COUNTIES RECOGNIZE THAT THE

SCOPE OF DIMINISHMENT/DISESTAB-

LISHMENT SET FORTH IN THE CASE LAW

IS AT TIMES UNCLEAR AND CONFUSING;

NEVERTHELESS, THE DECISION OF THE

TENTH CIRCUIT COURT OF APPEALS DI-

RECTLY CONFLICTS WITH HAGEN AND

CONFLICTS IN PRINCIPLE WITH ALL RE-

LATED RESERVATION DIMINISHMENT/

DISESTABLISHMENT PRECEDENT ............

CINE tlic hin icc tetlece enna clesintinondincilltistnigenconinnitn

APPENDIX

Motion to Recall Mandate and Request for Suspen-

sion of Rules, Ute Indian Tribe v. State of Utah,

114 F.3d 1513 (10th Cir. 1997) (No. 96-4073) .......

TABLE OF CONTENTS—Continued

Page

Suggestion for Consideration En Banc, Ute Indian

Tribe v. State of Utah, 114 F.3d 1513 (10th Cir.

1907) (ite. GB6.400tee SS eae 6a-10a

Brief of Appellant State of Utah, Ute Indian Tribe

v. State of Utah, 114 F.3d 1513 (10th Cir. 1997)

(No. 96-4073) 1la-64a

Appellant State of Utah’s Motion for Additional

Time for Oral Argument, Ute Indian Tribe v. State

of Utah, 114 F.3d 1513 (10th Cir. 1997) (No.

96-4073) ........... a ‘ae iied 65a-67a

Reply Brief of Appellant State of Utah, Ute Indian

Tribe v. State of Utah, 114 F.3d 1513 (10th Cir.

NODE) .(RRw.- CU OUTS) nck rit sid 68a-88a

iii

TABLE OF AUTHORITIES

CASES: Page

DeCoteau v. District County Court, 420 U.S. 425

A aE RE 25 Bs SER Rae a eae 4, 7, 8,9

Hagen v. Utah, 510 U.S. 399 (1994) -—.................... passim

Rosebud Sioux Tribe v. Kneip, 180 U.S. 584

(5) GRRE SI SR AS Bits 2 a i a 2c RE 4,7,8

United States v. Pelican, 232 U.S. 442 (1914)........ 7

STATUTES:

ET TA TA 7

I pulisechpe 7,8

OTHER AUTHORITIES:

ar re 1

Brief for the United States as Amicus Curiae,

DeCoteau v. District County Court, 420 U.S. 425

I cia IN i sats crtene 9

Petition for a Writ of Certiorari, Duchesne County

and Uintah County, Utah v. Ute Indian Tribe

BN GE Te ee 4,9

Response of the State of Utah to Request for State-

ment of Position, Duchesne County and Uintah

County, Utah v. Ute Indian Tribe (No. 97-570)... 1, 2,3

Brief for the States of California and Colorado as

Amici Curiae, in Support of Petitioners,

Duchesne County and Uintah County, Utah v.

Ute Indian Tribe (No. 97-570) ...............--2.....-...- 2,4,9

Reply Brief of Petitioners, Duchesne County and

Uintah County, Utah v. Ute Indian Tribe (No.

fC CRI SRIE SES RRC ac SERS a 2 ee 9

Brief of Appellant State of Utah, Ute Indian Tribe

v. Utah, 114 F.3d 1518 (10th Cir. 1997) (No.

ae, cimsmsinsesenccees 5

Reply Brief of Appellant State of Utah, Ute Indian

Tribe v. Utah, 114 F.8d 1513 (10th Cir. 1997)

(oR eee oti a a... 5, 9

Transcript of Oral Argument, Frickson v. United

States ex rel. Feather, U.S. Supreme Court No.

73-1500, decided with DeCoteau v. District

County Court, 420 U.S. 425 (1975) ...................... 9

TABLE OF AUTHORITIES—Continued

Page

Transcript of Court Proceedings, Ute Indian Tribe

v. Utah, (Oct. 21, 1997) (No. 75-CV-408-J) ........ 4

Transcript of Oral Argument, Alaska v. Native

Village of Venetie Tribal Government, et al.,

(Dec. 10, 1997) (No. 96-1577) .............------2.------ 5

Transcript of Oral Argument, South Dakota v.

Yankton Sioux Tribe, (Dec. 8, 1997) (No. 96-

BI a sovcxcacsdenetvehniersancecerasteiek eakesbacdae eee 8, 10

PETITIONERS’ REPLY TO RESPONSE

OF THE STATE OF UTAH

Pursuant to the direction of the Court by letter dated

November 24, 1997, the Office of the Clerk requested

that the State of Utah file a response to the petition for

a writ of certiorari in this case (although aligned with the

Counties below, the State had previously waived the right

to respond). On December 23, 1997, the State filed a

“RESPONSE OF THE STATE OF UTAH TO RE-

QUEST FOR STATEMENT OF POSITION.” Petition-

ers’ Reply to the Response of the State of Utah is sub-

mitted pursuant to Sup. Ct. R. 15.6.

INTRODUCTION

A. The Response of the State of Utah Confirms the State’s

Disagreement With the Decision of the Tenth Circuit

Court of Appeals.

As a preliminary matter, it should first be noted that in

its response, the State of Utah does not back away, in

any respect, from the diminishment/disestablishment argu-

ments the State submitted in the district court and in the

court of appeals:

The State’s decision was not made because it was

satisfied that the Tenth Circuit decision had satis-

factorily or correctly resolved the matter. ... The

State has not changed its position concerning the

merits of the boundary litigation. . . This decision

does not represent agreement with the decision of

the Tenth Circuit that is the subject of the pending

Petition.

Resp. of the State of Utah to Req. for Statement of Posi-

tion at 2, 3, 4, Duchesne County and Uintah County,

Utah v. Ute Indian Tribe, (No. 97-570) (emphasis

added) (hereinafter Resp. of Utah).

In other words, the State of Utah continues to recog-

nize the unworkable and unprecedented nature of the

decision of the Tenth Circuit Court of Appeals, that it is

in direct conflict with the decision of this Court in Hagen

v. Utah, 510 U.S. 399 (1994), and that Hagen did not

hold, as the court of appeals erroneously concluded, that

historic reservation boundaries still exist in spite of the

“restoration to the public domain” language of the Uintah

Acts, so as to encompass tens of thousands of acres of fee

lands that are not owned or populated by members of the

Ute Indian tribe. In this respect, to the extent that the

Counties have consistently relied upon the same analysis

and authorities as the State of Utah, the response un-

deniably substantiates the arguments set forth in the peti-

tion—in spite of taking “no position” on the petition be-

cause of other competing interests.’

For this reason, and to further insure that the argu-

ments of the State of Utah receive consideration in the

context in which they were originally submitted, the

Counties, for the convenience of the Court, have appended

in their entirety the motions and briefs that the State of

Utah submitted in the court of appeals. Reply to Resp.

App. la-88a. The documents make perfectly clear the

“position” of the State referred to in the response, which

has “not changed.” Resp. of Utah at 3. The arguments

support the historic reservation boundary disestablishment

recognized in Hagen. On the merits, these arguments also

support the Counties’ petition in every respect. The sig-

nificant aspects of the State’s arguments are cited in Ar-

gument I infra, and briefly discussed in Argument II,

infra.

B. The Response of the State of Utah Specifically Confirms

That Future Negotiations Were Not Intended to Affect

the Compelling Reasons for Granting the Petition for a

Writ of Certiorari in this Case.

The fact that the State has agreed to a “road map for

future negotiations” does not detract from any of the

reasons previously submitted in support of the petition

for a writ of certiorari in this case. Id. at 4. Nor was it

1 The brief of amici States similarly supports this petition. Br.

for the States of California, et al. as Amici Curiae in Supp. of

Pet’rs, Duchesne County and Uintah County, Utah v. Ute Indian

Tribe, (No, 97-570).

intended to do so. As the “road map” itself attests, the

Opposite is true with reference to this petition and specifi-

cally to the decision of the Tenth Circuit Court of Ap-

peals. Resp. of Utah App. at 3a. To allow for this con-

tingency, the “road map” is prefaced by the express dis-

claimer: “Absent a change in controlling law... .” Id.

This petition can and should lead to that change in con-

trolling law.

In addition, the “road map” also disclaims any intent

to “necessarily determine the respective rights of Indians

and non-Indians within the areas covered by that deci-

sion.” Jd. And finally, the right to “pursue litigation as

a last resort” to clarify the “fundamental rights of resi-

dents of the area or the respective jurisdiction of the par-

ties” was also explicitly acknowledged. Id. As a result,

even if the Counties had been a part of this process (and

they were not, as the State appropriately points out)

nothing in the process adopted by the State of Utah under-

mines the need for the relief requested in this petition.

Resp. of Utah at 3-4.

Moreover, as a practical matter, the State’s response

affirmatively establishes the need for this Court to exercise

its discretionary jurisdiction in this case. It does so by

confirming in no uncertain terms the “jurisdictional chaos”

that will result if the Tenth Circuit’s decision is allowed

to stand:

The Tribe and the Counties have aptly described the

present situation as one of “jurisdictional chaos,” char-

acterized by many categories of land ownership and

a wide variety of unanswered jurisdictional questions.

For example, just to determine jurisdiction in an ar-

rest for criminal activity, both a survey to determine

the exact location of the crime and a title search to

establish the past and present ownership of the land

are often necessary.

Id. at 3 (emphasis added).

As all parties acknowledge, the scope of this problem is

truly “monumental.” Tr. of Ct. Proceedings at 10, Ute

Indian Tribe v. Utah, (Oct. 21, 1997) (No. 75-CV-408-

J); Reply App. at 3a. In light of the hundreds of thou-

sands of acres involved in this “jurisdictional chaos” area,

appropriate relief from this Court is clearly warranted.’

In the final analysis, there is not even a suggestion here

that the State’s approach can realistically resolve any of

the substantial questions in this area in the foreseeable

future. It is for this reason that the Counties have sought

and relied upon the proper application of the rule of law

in this case—a rule of law that has been applied in all

similar diminishment/disestablishment areas in the past,

without exception and without substantial complications.

The Tenth Circuit should have implemented this rule of

law. See discussion of Hagen in Pet. at 20-22 (No. 97-

570). See also DeCoteau v. District County Court, 420

U.S. 425 (1975), Rosebud Sioux Tribe v. Kneip, 430

U.S. 584, 588 (1977) and all related decisions premised

on a similar “pro tanto” disestablishment of historic res-

ervation boundaries around areas directly affected by simi-

lar legislation.

Moreover, the Counties can certainly understand the

“desires” of the Ute Indian tribe in seeking by negotiation

a recognition of special exemptions and other special

treatment throughout the entire area for all tribal mem-

bers, treatment reserved to tribal members within Indian

reservations. Resp. of Utah App. 4a-5a. However, the

Counties cannot understand how the State of Utah or

Congress could constitutionally confer that special recog-

2 The federally funded and tribally assisted tract by tract title

opinions and corresponding mapping processes, involve “28” diffcr-

ent land categories and hundreds of thousands of acres of land. No

one can accurately predict when such a project will be complete.

See also the related argument set forth in the brief of amici States,

Br. for the States of California, et al. in Supp. of Pet’rs at 12-15,

Duchesne County and Uintah County, Utah v. Ute Indian Tribe

(No. 97-570).

nition on Ute tribal members in areas that this Court has

held are no longer part of the Uintah reservation, as even

the Tenth Circuit has recognized. For this reason, in part,

the Counties have not participated in this aspect of the

“road map” process.*

Of course, this is not to say that the process itself is not

appropriate and certainly commendable to resolve many

of the other conflicts that confront the Ute Indian tribe,

the State of Utah and the Counties in the area in ques-

tion. In those instances, the Counties have always wel-

comed the opportunity to resolve differences in this

fashion.

ARGUMENT

I. THE SPECIFIC ARGUMENTS SUBMITTED BY

THE STATE OF UTAH IN THE TENTH CIRCUIT

UNEQUIVOCALLY SUPPORT THE HISTORIC

RESERVATION BOUNDARY DISESTABLISH-

MENT RECOGNIZED IN HAGEN.

The State of Utah has consistently supported the his-

toric reservation boundary disestablishment recognized in

Hagen. For this reason, as noted supra, the Counties

have appended the briefs and motions submitted by the

State of Utah in the Tenth Circuit in their entirety. Reply

to Resp. App. 1a-88a. A few references to these docu-

ments demonstrate the extent of that support. For ex-

ample, see Br. of Appellant State of Utah, at 8 (App.

19a), 12 (App. 23a), 26 (App. 38a), 30 (App. 42a-

43a), 31 (App. 43a), 34 (App. 47a), 40 (App. 53a),

43 (App. 56a), 44 (App. 57a), 49 (App. 62a), Ute

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

(No. 96-4073). See also Reply Br. of Appellant State of

Utah at 10 (App. 78a), 11 (App. 79a), 12 (App. 80a),

13 (App. 81a), 17 (App. 85a), Ute Indian Tribe v.

Utah, 114 F.3d 1513 (10th Cir. 1997) (No. 96-4073).

%On December 10, 1997, similar questions regarding the scope

of the plenary power of Congress in this respect were briefly raised

during oral argument. Tr. of Oral Argument at 10, 19-21, 39-40,

55, Alaska v. Native Village of Venetie, (No. 96-1577).

II. THE COUNTIES RECOGNIZE THAT THE SCOPE

OF DIMINISHMENT/DISESTABLISHMENT SET

FORTH IN THE CASE LAW IS AT TIMES UN-

CLEAR AND CONFUSING; NEVERTHELESS, THE

DECISION OF THE TENTH CIRCUIT COURT OF

APPEALS DIRECTLY CONFLICTS WITH HAGEN

AND CONFLICTS IN PRINCIPLE WITH ALL RE-

LATED RESERVATION DIMINISHMENT/DISES-

TABLISHMENT PRECEDENT.

In the references noted supra, the State of Utah did not

always use the terms “diminished/disestablished” as words

of art. But that is also true of the other parties and the

courts that have been involved in this and all other similar

litigation. The Tenth Circuit failed to recognize this fact

and the fundamental error of that court centers around

a misconstruction of the diminishment/disestablishment

holding in Hagen.

Ignoring that prior precedent from this Court has al-

ways recognized that all types of diminishment/disestab-

lishment statutes extinguish historic reservation bound-

aries, the court of appeals found that the Hagen opinion

did not support that conclusion. Emphasizing an alleged

difference between “diminished” and “disestablished” in

the text of the Hagen opinion, and focusing on an alleged

limitation in the public domain description in the Hagen

opinion that only referenced lands directly affected (“with

respect to those lands”), the court of appeals misconstrued

Hagen. Hagen, 510 U.S. at 414. Hagen did not hold

that the boundaries of the historic Uintah Reservation

were somehow also modified to exclude only those lands

actually restored to the public domain and, at the same

time, modified to include all other lands, as the court of

appeals has decided.

The fact that such a holding would have been com-

pletely unprecedented and in conflict with the decisions

cited and relied on as precedent in Hagen, was not given

due consideration and received no mention in the court

of appeals’ opinion. The State of Utah had stressed this

Caen aa

point. Reply to Resp. App. 43a. The holdings in

DeCoteau (disestablished) and Rosebud (diminished) at-

test that in both instances the historic boundaries around

the areas affected were necessarily disestablished. In addi-

tion, as the State of Utah also noted, any contrary holding

in this case would not only have to ignore that precedent,

but it would also have to ignore the understanding of that

precedent evidenced by the specific submissions of the

parties in Hagen: namely, that federal and tribal jurisdic-

tion would be limited to trust land in the event that dimin-

ishment/disestablishment was found. Id. at 23a.

Moreover, the holding of the Tenth Circuit could not

possibly be correct even if one were to assume arguendo

that Hagen only decided the non-reservation status of the

lands specifically restored to the public domain (and not

the status of the lands that remained). Precedent

(DeCoteau and Rosebud) establishes that non-reservation

Status of the restored lands in all instances is necessarily

tied to the disestablishment of historic reservation bound-

aries and Hagen relied on that precedent. Even if Hagen

was not intended to also resolve the status of the other

lands that remained, it certainly cannot be maintained that

Hagen intended diminishment in the unprecedented format

adopted by the court of appeals. Nevertheless, this is what

the court of appeals has erroneously decided that Hagen

held. The State of Utah strongly disagreed with this view

of Hagen. Id. at 42a-45a.

The operative language of Uintah legislation restored

all unallotted lands to the public domain and thereby ex-

tinguished historic reservation boundaries. Id. at 43a. In

such a situation, the allotted lands in the area ordinarily

would no longer be within the limits of an Indian reserva-

tion (18 U.S.C. 1151(a)), contrary to what the court

of appeals has held (based on an incorrect view of the

holding in Hagen purportedly directed to the status of

these “other” lands). Rather, Congress intended that 18

U.S.C. 1151(c) apply in that instance. See United States

prea:

v. Pelican, 232 U.S. 442 (1914) and the revisor’s notes

to 18 U.S.C. 1151(c). Nothing in Hagen even suggests

that this analysis was not applicable in the context of the

Uintah legislation. And the mere fact that Congress pro-

vided for a Uintah “grazing” reserve at the same time

(not a “diminished reservation”) could not affect the

“reservation” status of the allotments in any event. Reply

to Resp. App. 56a.

While there might have been some general questions

when this Court had an opportunity to address the con-

sequences of similar diminishment/disestablishment legis-

lation in oral argument in South Dakota v. Yankton

Sioux Tribe, (No. 96-1581) there was no misunderstand-

ing on this point. Although it was noted that the dissent

in Yankton in the court of appeals even said that the

reservation in question was only “diminished,” the parties

made clear (and so did the United States) that the issue

in Yankton was really one of reservation disestablishment.

Tr. at 4-6, 23, 25, 27, 32, 33, 34, 39-41, 49-50, Yankton

Sioux Tribe (No. 96-1581).* In Hagen, the parties sub-

mitted the case with that same understanding, as the State

of Utah pointed out. Reply to Resp. App. 56a.

In Yankton, as in this case, the scope of the cession

(or the restoration) was not restricted so as to exclude

a discrete area of the original reservation that Congress

intended to maintain as a “diminished” reservation. As

a result, DeCoteau establishes that the entire historic res-

ervation boundary was disestablished.®

The maps submitted in both Hagen and DeCoteau con-

firm this understanding and analysis. In Hagen, the State

of Utah submitted a reference map. As amici States point

* Nevertheless, diminished and disestablished were sometimes

used interchangeably even in this argument. Tr. at 49-50, Yankton

Sioux Tribe (No. 96-1581).

5 Rosebud confirms that holding insofar as it relates to historic

boundaries around areas other than the “diminished” reservation.

x @x@<xaxa—_—

out, the map, coded to trust land, makes sense only in

4 this context. Br. for States of California, et al. at 10,

n. 4 (No. 97-570). See also Pet. at 18 (No. 97-570).

In DeCoteau, the United States prepared and appended

a special diagram from a more detailed Bureau of Indian

Affairs map that illustrated the same point. Br. U.S. at

7 n. 2, DeCoteau (No. 73-1148). As the United States

explained in oral argument:

MR. SACHSE: .. . Indian country is any land in-

side a reservation. If this Court were to hold this

reservation had been abolished by the 1891 Act,

which I think would be a very restrictive and artifi-

cial interpretation of what the Court’s done in Mattz

and in Seymour vs. Superintendent, and I think it

would also undercut 18 U.S.C. 1151 seriously. At

least for this reservation.

QUESTION: Yes, but go ahead. If the Court

should hold—

MR. SACHSE: If the Court should hold that, then

each one of these red spots is a little island of federal

and tribal jurisdiction, and we’re not in a time now

when these—

QUESTION: That’s the way it’s been, isn’t it, as

my brother White suggested?

Tr. at 21, Erickson v. United States ex rel. Feather, 420

U.S. 425 (1975) (No. 73-1500) (emphasis added).

In Utah that is the way it had been until the Tenth

Circuit altered the status quo. Hagen, 510 U.S. at 414-

415. And that is the way the United States told this

Court it would be again, if the Utah Supreme Court was

affirmed in Hagen. Hagen affirmed the Utah Supreme

Court, but the decision of the Tenth Circuit does not re-

flect that holding.*

* One additional point is noteworthy in this regard. The United

States District Court in Utah has continued to enjoin the Counties

from implementing the Hagen mandate. Reply Br. of Pet’rs at 1-3

(No. 97-570).

CONCLUSION

In the Petition, the Counties requested that the Peti-

tion for a Writ of Certiorari be granted and for the Court

to fashion some type of appropriate relief. Alternatively,

we suggested that consideration of the Petition be deferred

until after this Court 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) (Monday, De-

cember 8, 1997). Because the United States elected not

to express its views to this Court regarding the Tenth

Circuit’s construction of Hagen, we further suggested in

our Reply Brief that the United States be invited to do so.

Now that the State of Utah has clarified its role in this

litigation, we respectfully submit that the United States,

at the very least, should explain how it could tell this

Court one thing in Hagen and then tell the court below

a different story.

Respectfully submitted,

HERBERT WM. GILLESPIE Tom D. ToBIN

Duchesne County Attorney Counsel of Record

500 East 100 South TOBIN LAW OFFICES, P.C.