Appellate Case: Document: Date Filed: 09/03/2014 Page: 1 CASE NOS &

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1 Appellate Case: Document: Date Filed: 09/03/2014 Page: 1 CASE NOS & UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT UTE INDIAN TRIBE OF THE UINTAH and OURAY RESERVATION, UTAH, v. Plaintiff-Counterclaim Defendant-Appellant, THE STATE OF UTAH, DUCHESNE COUNTY, a political subdivision of the State of Utah, ROOSEVELT CITY, a municipal Corporation, DUCHESNE CITY, a Municipal Corporation, MYTON, a Municipal Corporation, and UINTAH COUNTY, a political subdivision of the State of Utah, Defendants-Counterclaimants-Appellees. On Appeal from the United States District Court for the District of Utah, Central Division The Honorable Bruce Jenkins No. 2:75-cv and 2:13-cv BRIEF OF APPELLEE DUCHESNE COUNTY Jesse C. Trentadue (#4961) Britton R. Butterfield (#13158) SUITTER AXLAND, PLLC 8 East Broadway, Suite 200 Salt Lake City, UT Telephone: (801) Facsimile: (801) jesse32@sautah.com bbutterfield@sautah.com Attorneys for Duchesne County Oral Argument Requested

2 Appellate Case: Document: Date Filed: 09/03/2014 Page: 2 TABLE OF CONTENTS TABLE OF CONTENTS ii TABLE OF AUTHORITIES iv PRIOR RELATED APPEALS x TENTH CIRCUIT RULE 31.3 STATEMENT REGARDING SEPARATE BRIEFS.... x CORPORATE DISCLOSURE STATEMENT x STATEMENT OF PRIOR AND/OR RELATED APPE.A. L. S x HISTORY OF THE CASE NATURE OF THE CASE JURISDICTION ISSUES PRESENTED STANDARD OF REVIEW STATEMENT OF FACTS SUMMARY OF ARGUMENT ARGUMENT: I. THERE IS NOT BASIS FOR PENDENT APPELLATE JURISDICTION II. THE TRIBE IS NOT IMMUNE FROM SUIT II. THE DISTRICT COURT HAD SUBJECT MATTER JURISDICTION HEAR CLAIMS BASED UPON THE LAWFULNESS OF THE TRIBE S EMPLOYMENT ORDINANCE THE TRIBE IS NOT IMMUNE FROM ii

3 Appellate Case: Document: Date Filed: 09/03/2014 Page: 3 SUIT III. THERE IS A JUSTICIABLE CASE OR CONTROVERSY IV. THE COURT PROPERLY SCHEDULED A PLENARY HEARING TO RESOLVE THE FACTUAL DISPUTE UNDERLYING THE MOTION TO DISMISS V. DUCHESNE COUNTY DOES HAVE STANDING VI. VII. DUCHESNE COUNTY DOES NOT HAVE TO EXHAUST TRIBAL REMEDIES DUCHESNE COUNTY S CLAIMS ARE NOT BARRED BY RES JUDICATA STATEMENT OF COUNSEL AS TO ORAL ARGUMENT CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS CERTIFICATE OF SERVICE APPENDIX Order on Plaintiff s Rule 12(b) Motion Memorandum Opinion & Order Re: Motions to Dismiss iii

4 Appellate Case: Document: Date Filed: 09/03/2014 Page: 4 Cases TABLE OF AUTHORITIES Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006) American Iron & Steel Inst. v. E.P.A., 560 F.2d 589 (3rd Cir. 1977) Arizona Public Service Vo. v. Aspaas, 77 F.3d 1128 (9th Cir. 1995) Austin s Express, Inc. v. Arneson, 996 F. Supp (10th Cir. 1994) Baker v. Gold Seal Liquors, Inc., 417 U.S. 467 (1974) Baltimore & Ohio R. Co. v. Central Ry. Services, Inc., 636 F.Supp. 782 (E.D. Pa. 1986) Bernett v. Bernett, 745 A.2d 827 (Conn. 1999) , 55 Berrey v. Asarco Inc., 439 F.3d 636 (10th Cir. 2006) Bonnet v. Harvest (U.S.) Holdings, Inc., 741 F.3d 1155 (10th Cir. 2014) Brever v. Rockwell International Corporation, 40 F.3d 1119 (10th Cir. 1994) Burlington N.R. Co. v. Blackfeet Tribe, 924 F.2d 899 (9th Cir. 1991) Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006) Califano v. Torres, 435 U.S. 1 (1978) Certain Interested Underwriters v. Layne, 26 F. 3d 39 (6th Cir. 1994) Cf. Ellis v. Dyson, 421 U.S. 426 ( Christian v. Jemison, 303 F.2d 52 (5th Cir. 1962) City of Lexington v. City of Columbia, 400 S.E.2d 146 (S.C. 1991) iv

5 Appellate Case: Document: Date Filed: 09/03/2014 Page: 5 Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2001) Decoteau v. District County Court, 420 U.S. 425 (1975) Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir. 2003) Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980) passim Dugan v. Rank, 372 U.S. 609 (1983) El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999) Enlow v. Moore, 134 F.3d 993 (10th Cir. 1998) Federal Deposit Ins. Corp. v. Daily, 973 F.2d 1525 (10th Cir. 1992) FMC v. Shone-Bannock Tribes, 905 F.2d 1311 (9th Cir. 1990) Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 (3rd Cir. 1961) Griffen v. Breckenridge, 403 U.S. 88 (1971) Hagen v. Utah, 507 U.S (1994) Hagen v. Utah, 510 U.S. 399 (1994) passim passim In Matter of Estate of Anderson, 671 P.2d 165 (Utah 1983) International Technologies Consultants, Inc. v. Pilkington, PLC, 137 F.3d (9th Cir. 1998) Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987) passim Johnson v. City of Cincinnati, 301 F.3d 484, (6th Cir. 2002) Jones v. UPS, Inc., 502 F.3d 1176 (10th Cir. 2007) v

6 Appellate Case: Document: Date Filed: 09/03/2014 Page: 6 Kelley v. U.S., 69 F.3d 1503 (10th Cir. 1996) Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163 (10th Cir. 1998) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) MacArthur v. San Juan County, 391 F.Supp. 2d 895 (D. Utah 2005) MacArthur v. San Juan County, 497 F.3d 1057 (10 th Cir. 2007) McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002) Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976) Montana v. Gilham, 133 F.3d 1133 (9th Cir.1997) passim Montana v. United States, 450 U.S. 544 (1980) Montana DOT v. King, 191 F.3d 1108 (9th Cir. 1997) passim National Farmers Union Ins. Cos. v. Crow Indian Tribe, 471 U.S. 845 (1985).... passim Nevada v. Hicks, 533 U.S. 353 (2001) passim Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) Organized Village of Kake v. Eagan, 369 U.S. 60 (1962) Payne v. AHFI Netherlands, B.V., 482 F.Supp (N.D. Ill. 1980) Pittsburg & Midway Coal Co. v. Yazzie, 909 F.2d 1387 (10th Cir. 1990) Plains Commerce Bank v. Long Family Land and Cattle Company, Inc., 554 U.S. 316 (2008) passim Planned Parenthood Association of Cincinnati, Inc. v. The City of Cincinnati et al. 822 F.2d 1390 (6th Cir. 1987) vi

7 Appellate Case: Document: Date Filed: 09/03/2014 Page: 7 Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001) Redwood Gym v. Salt Lake County Commission, 624 P.2d 1138 (Utah 1981) Reid v. Covert, 354 U.S. 1 (1956) , 55 Revere Cooper & Brass, Inc. v. Aetna Cas & Sur. Co., 426 F.2d 709 (5th Cir. 1970) Rio Grande Silvery Minnow v. Bureau of Reclamation, 599 F.3d 1165 (10th Cir. 2010) Rural Water District No. 1 v. City of Wilson, Kansas, 243 F.3d 1263 (10th Cir. 2001) Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) passim Satsky v. Paramount Comm., Inc., 7 F.3d 1464 (10th Cir. 1993) Seneca-Cayuga Tribe of Oklahoma v. State of Oklahoma, 874 F.2d 709 (10th Cir. 1989) Shakopee Mdewakanto Sioux Community v. City of Prior Lake, Minnesota, 771 F.2d 1153 (8th Cir. 1985) Singleton v. Wulff, 428 U.S. 106 (1976) Solem v. Bartlett, 465 U.S. 463 (1984) State v. Hagen, 858 P.2d 925 (Utah 1992) State v. Perank, 858 P.2d 927 (Utah 1992) Strate v. A-1 Contractors. 520 U.S. 438 (1997) passim Tenneco Oil Co. v. Sac and Fox Tribe, 725 F.2d 572 (10th Cir. 1984) Thompson v. State of New York, 487 F. Supp. 212 (N.D. N.Y. 1979) vii

8 Appellate Case: Document: Date Filed: 09/03/2014 Page: 8 Timpanogos Tribe v. Conway, 286 F.3d 1195 (10th Cir. 2002) United States v. Armour & Co., 402 U.S. 673 (1971) United States v. Heath, 509 F.2d 16 (9th Cir. 1974) United States v. Morrison, 529 U.S. 598 (2000) United States v. Sandoval, 29 F.3d 537 (10th Cir. 1994) Ute Indian Tribe v. State of Utah, 114 F.3d 1513 (10th Cir. 1997) passim Ute Indian Tribe v. State of Utah et. al. District of Utah Case No. 2:13-cv Ute Indian Tribe v. State of Utah, 521 F. Supp (D. Utah. 1981) Ute Tribe v. Utah, 716 F.2d 1298 (10th Cir. 1983) Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir. 1985)(en banc) Ute Indian Tribe v. State of Utah, 935 F. Supp (D. Utah 1996) passim passim passim passim Village of Kake v. Eagan, 369 U.S. 60 (1962) Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202 (10th Cir. 2003) Statutes 25 U.S.C C.F.R C.F.R Stat Stat viii

9 Appellate Case: Document: Date Filed: 09/03/2014 Page: 9 28 Stat. 286, Stat Stat. 3113, Act of Aug. 15, 1894, ch Other United States Constitution, Fourteenth Amendment Utah Constitution, Art. I, Clause ix

10 Appellate Case: Document: Date Filed: 09/03/2014 Page: 10 STATEMENT OF PRIOR AND/OR RELATED APPEALS Defendant-Appellee Duchesne County, Utah, ( Duchesne County or the County ) hereby adopts the Statement of Related Cases set forth in the Brief of Plaintiff-Appellant Ute Indian Tribe of the Uintah & Ouray Reservation ( Tribe ). Duchesne County, however, notes that there are also two related District Court decisions that the Tribe does not reference, which are Ute Indian Tribe v. State of 1 2 Utah, and Ute Indian Tribe v. State of Utah. apply. 3 TENTH CIRCUIT RULE 31.3 STATEMENT REGARDING SEPARATE BRIEFS Because Duchesne County is a governmental entity, Rule 31.3 does not CORPORATE DISCLOSURE STATEMENT Duchesne County is a governmental party. Therefore, no statement is required under Federal Rule of Appellate Procedure F. Supp (D. Utah. 1981). 935 F. Supp (D. Utah 1996). 10th Cir. R. 31.3(D). x

11 Appellate Case: Document: Date Filed: 09/03/2014 Page: 11 HISTORY OF CASE This case was commenced in 1975 to essentially determine the boundaries of the current Ute Reservation, which necessarily had jurisdictional implications for the State, local and tribal governments. But the dispute has expanded far beyond the jurisdictional issues before the Court in the 1975 case. The dispute has now grown to include the State and County s right to patrol public roads in what the Tribe contends is part of the Ute Reservation, the Tribe s efforts to enforce its laws against non-members on non-tribal lands, and to close public roads to nonmembers, including County officials who use those roads in the discharge of their duty to protect the public. At the heart of this case, is the Ute Tribe s contention that state law stops at the borders of an Indian reservation. But that is not so. Utah s and Duchesne County s sovereignty do not end at the Ute Reservation s borders. [A]n Indian 4 reservation is now considered part of the territory of the State. Nevertheless in its Complaint, which the Tribe avoids discussing so as not to direct the Court s 4 Nevada v. Hicks, 533 U.S. 353, (2001). Accord, Shakopee Mdewakanton Sioux Community v. City of Prior Lake, Minnesota, 771 F.2d 1153, 1156 (8th Cir. 1985) (Reservation communities are still part of the state in which they are located and the political subdivisions of that state). 1

12 Appellate Case: Document: Date Filed: 09/03/2014 Page: 12 5 attention to the scope of relief it is requesting, the Tribe is asking for two distinct types of declaratory-injunctive relief designed to oust both the State and County from asserting criminal and civil regulatory authority within what the Tribe contends is Indian County, which comprises almost one-quarter of the State of Utah, including National Forests and other public lands as well as public roads that traverse those lands. First, the Tribe seeks an Order establishing its civil and criminal jurisdiction within Duchesne County, including the National Forest and other public lands therein, and to permanently enjoin the County from exercising civil or criminal jurisdiction over Indians, within that area. This is an injunction to stay pending and future law enforcement procedures against tribal members. The second type of injunctive relief sought by the Ute Tribe is an anti-suit injunction. Specifically, the Ute Tribe seeks an Order forever barring Duchesne County from, directly or indirectly, raising, by way of complaint or defense, in any court of law or administrative forum: (1) that the Ute Tribe lacks any power of a sovereign over any part of the Uncompahgre Reservation, including National Forests or other public lands therein; (2) that the Ute Tribe lacks any power of a 5 Complaint, App

13 Appellate Case: Document: Date Filed: 09/03/2014 Page: 13 sovereign over any part of the Uintah Valley Reservation, including the National Forests or other public lands therein; (3) that the County s civil and/or criminal authority over National Forest Lands exceeds the limits of such authority allegedly imposed by the Tenth Circuit in Ute Tribe of Indians of the Uintah and Ouray 6 Reservation v. State of Utah; and (4) that Duchesne County be prohibited from seeking, obeying, carrying out, issuing, enforcing, or otherwise treating as having any lawful force or effect any order of any court which is inconsistent with the mandate issued by the United States Court of Appeals for the Tenth 7 Circuit. By way of a Counterclaim, Duchesne County asserted five claims for declaratory and injunctive relief related to the jurisdiction being asserted by the Tribe. These claims were: (1) to enjoin the Tribe s efforts to obstruct justice by orchestrating, funding or otherwise aiding and abetting its members in bringing 8 sham lawsuits against County officials; (2) to enjoin the Tribe s illegal and unconstitutional assertion of law enforcement authority over Federal, State and F.3d 1513 (10th Cir. 1993). Complaint, App (emphasis added). Counterclaim, App. 881,

14 Appellate Case: Document: Date Filed: 09/03/2014 Page: 14 County roads and rights-of-way, including demanding that the County stop 9 patrolling public roads; (3) to enjoin the Tribe s illegal and unconstitutional assertion of civil regulatory authority over non-members on non-tribal lands such the Ute Employment Rights Ordinance ( UTERO ),including allegations of racketeering involving Ute Tribal officials demanding payments, bribes and/or kickbacks from business owners in order to do business within the Reservation or to engage in business with anyone that was engaged in interstate commerce within 10 or without the Reservation, as well amending its Law and Order Code to assert jurisdiction over all children living or domiciled within the Reservation even 11 though they are non-members; (4) to enjoin the Tribe from closing public roads 12 and rights-of-way to County officials and members of the general public; and (5) to enjoin the Tribe from continuing to violate the constitutional rights, privileges and immunities of the County and its citizens by, among other acts, closing public Id Id Id. 26. Id. at

15 Appellate Case: Document: Date Filed: 09/03/2014 Page: roads. The Tribe moved to dismiss the Counterclaim contending that: (1) the District Court lacked subject matter jurisdiction; (2) there was no Article III case or controversy; (3) the County lacked standing; (4) the claims were barred by sovereign immunity; (5) the claims were barred by res judicata; and (6) the 14 County s had failed to exhaust Ute Tribal Court remedies. After several hearings, the District Court dismissed the County s First Claim for Relief to enjoin the Tribe s funding of sham lawsuit against County officials, and that portion of the County s Third Claim for Relief directed at racketeering by the Tribe in the 15 enforcement of UTERO. The County was given leave to amend its 16 Counterclaim, but chose not to do so. The District Court denied the remainder of the Tribe s Motion, thereby leaving for trial the County s Second Claim for Relief to enjoin the Tribe s interference with the County s law enforcement 13 Id. at For purposes of proceeding under federal civil rights laws, Duchesne County is a person. See Rural Water District No. 1 v. City of Wilson, Kansas, 243 F.3d 1263, 1274 (10th Cir. 2001) Motion to Dismiss, App Order, App. 1542; Memorandum Opinion, App Order, App

16 Appellate Case: Document: Date Filed: 09/03/2014 Page: 16 activities upon public roads; Third Claim for Relief, absent the claim of racketeering, to enjoin the Tribe s illegal enforcement of UTERO against nonmembers involving activities on non-indian land; Fourth Claim for Relief to enjoin the Tribe s closure of public roads to non-members, including County officials in the discharge of their duties; and Fifth Claim for Relief to enjoin pursuant to 42 U.S.C the Tribe s closure of public roads to non-members 17 and the County. The District Court did so because these Counterclaims addressed core jurisdictional questions inseparable from those raised by the 18 plaintiff in its own pleadings. With respect to the issue of sovereign immunity, the District Court noted that it was not an issue because the Tribe and the State had been parties as to the core jurisdictional issues since 1975 when the lawsuit 19 was commenced. More importantly, with respect the other grounds asserted by the Tribe for dismissal, the District Court found that the legal question of the 17 Id. Section 1985 reaches private conspiracies; there is no state action or color of law requirement to state a claim under See Griffen v. Breckenridge, 403 U.S. 88 (1971). Members of federally recognized Indian tribes are also subject to liability under 1985 and See Thompson v. State of New York, 487 F. Supp. 212, 216 (N.D. N.Y. 1979) Memorandum Opinion, App. 1544, fn. 4. Id. at

17 Appellate Case: Document: Date Filed: 09/03/2014 Page: 17 respective scope of State, local and tribal jurisdiction within the existing Ute reservation boundaries rests at the core of this case, and will be fully addressed in the context of the plenary hearing to be conducted later this year. That question 20 demands full and definitive resolution. Unfortunately, the District Court was not able to conduct that plenary hearing to resolve these fact intensive issues related to the District Court s jurisdiciton because the Tribe appealed. NATURE OF THE CASE On its face, this appeal involves the District Court s denial of the Ute Tribe s Motion to Dismiss Duchesne County s Counterclaim. However, the underlying issues are much broader. With this lawsuit, the Tribe seeks an Order permanently enjoining Duchesne County from exercising criminal and civil jurisdiction over Indians within the County. What the Ute Tribe is essentially seeking is a safe-haven or sanctuary for its members who commit crimes within the State of Utah. Not only does the Ute Tribe contend that its members, or any Indian for that matter, cannot be prosecuted by Duchesne County for offenses allegedly occurring on State and County roads, including those passing through a National Forest or other public lands but, it is also the Tribe s position that the 20 Id. at

18 Appellate Case: Document: Date Filed: 09/03/2014 Page: 18 County cannot patrol these public roads, and that if a member or other Indian commits a crime, even a serious felony, off-reservation that tribal member or other Indian is entitled to sanctuary from past and present crimes if he or she can reach the Reservation s borders or Indian Country prior to being apprehended by state and/or local law enforcement. The relief sought by the Ute Tribe, however, would impinge upon Duchesne County s exercise of its police power 21 guaranteed under the Tenth Amendment. The issuance of the injunctive relief sought by the Ute Tribe would likewise create a law enforcement void whereby members of the Ute Tribe would not be subject to any prosecution for violating public safety laws. JURISDICTION Pursuant to the Collateral Order Rule this Court has the jurisdiction to review the District Court s denial of the Tribe s Motion to Dismiss on the basis of sovereign immunity. But the County does not agree that the requisite appellate jurisdiction exists with respect to the other issues on which the Tribe is seeking appellate review, namely whether the District Court had the jurisdiction to hear the 21 See generally United States v. Morrison, 529 U.S. 598, 618 (2000)( we can think of no better example of the police power, which the Founders... reposed in the States, than the suppression of violent crime and vindication of its victims ). 8

19 Appellate Case: Document: Date Filed: 09/03/2014 Page: 19 County s challenge to UTERO; whether there is a case or controversy; whether the County has standing to assert the claims presented; whether the County is required to exhaust Ute Tribal Court remedies prior to proceeding in federal court; and/or whether the County s claims are barred by res judicata. These additional issues, which the Tribe raises in this appeal, do not come under the Court s pendent appellate jurisdiction because they are not inextricably intertwined with the issue of sovereign immunity and/or because they are fact driven questions of law for which there is no record allowing for this Court to review these matters, especially in the context of a Motion to Dismiss. ISSUES PRESENTED While the Ute Tribe contends that the sole issue on appeal is whether the District Court erred in denying the Tribe s Motion to Dismiss, the issues are more 22 refined than the Tribe s simple characterization. The issues are more precisely framed as: (1) whether the District Court erred in not dismissing the County s 22 The Tribe asserts that the issue in this case is a simple matter of criminal jurisdiction, but that is deceptive. How Indian Country is defined goes far beyond the State s and/or County s criminal authority within the Uinta National Forest, it may also define their civil regulatory authority. See, e.g., Decoteau v. District County Court, 420 U.S. 425, 427 fn. 2 (1975); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, (1976). 9

20 Appellate Case: Document: Date Filed: 09/03/2014 Page: 20 Counterclaims based upon sovereign immunity and/or the lack of subject matter jurisdiction; (2) whether pendent appellate jurisdiction exists for this Court to review the other grounds for dismissal advanced by the Tribe before the District Court such as no case or controversy, the lack of standing, res judicata, or failure to exhaust tribal court remedies; and (3) whether the Tribe s appeal on these other issues is premature in that the District Court was unable to conduct the plenary hearing and develop the factual record necessary to resolve them? STANDARD OF REVIEW The District Court s decision with respect to the existence of subject matter 23 jurisdiction is reviewed de novo. The District Court s decision as to whether the County s Claims are barred by the doctrine of sovereign immunity is reviewed de 24 novo. The District Court s decision as to the existence of a case or controversy is 25 reviewed for clear error. The District Court s decision as to the County s 26 standing is reviewed for clear error. The District Court s decision as to the need 23 Rio Grande Silvery Minnow v. Bureau of Reclamation, 599 F.3d 1165, 1175 (10th Cir. 2010) Bonnet v. Harvest (U.S.) Holdings, Inc., 741 F.3d 1155, 1159 (10th Cir. 2014). Jones v. UPS, Inc., 502 F.3d 1176, 1183 (10th Cir. 2007). Id. 10

21 Appellate Case: Document: Date Filed: 09/03/2014 Page: for the County to exhaust tribal court remedies is reviewed for clear error. A district court s finding is clearly erroneous when the finding is without factual support in the record or if the appellate court, after reviewing all of the evidence, 28 is left with the definite and firm conviction that a mistake has been made. The District Court s decision as to whether the County s claims are barred 29 by the doctrine of res judicata is reviewed de novo. The allegations contained in the County s Counterclaim must be accepted as true and construed in the light 30 most favorable to the County, and that includes the exhibits attached to the 31 Counterclaim and incorporated by reference. It is likewise noteworthy that since the issues involved in Duchesne County s Counterclaim are all related to the jurisdiction that the Tribe is asserting and/or claims to have the authority to assert 32 then the Tribe has the burden of proof even though it is the defendant. The 1994) Id. McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1105 (10th Cir. 2002). Satsky v. Paramount Comm., Inc., 7 F.3d 1464, (10th Cir. 1993). See Brever v. Rockwell International Corporation, 40 F.3d 1119, 1125(10th Cir. See Fed. R. Civ. P. 10(c). Austin s Express, Inc. v. Arneson, 996 F. Supp. 1269, 1270 (D. Mont. 1998). 11

22 Appellate Case: Document: Date Filed: 09/03/2014 Page: 22 District Court s decision to schedule a plenary hearing to resolve the factual dispute underlying the Tribe s Motion to Dismiss for the alleged lack of a case or 33 controversy and/or the lack of standing is reviewed for abuse of discretion. 34 Abuse of discretion is a deferential standard. Unless the district court s ruling is arbitrary, capricious, whimsical or manifestly unreasonable or when [the Court is] convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances, the district 35 court s ruling should not be disturbed. Finally, this Court is free to affirm the District Court on any grounds for which the record is sufficient to permit 36 conclusions of law, even grounds not relied upon by the District Court, including whether given the allegations contained in the County s Counterclaim, these factdriven questions could be decided on a Motion to Dismiss in the absence of the plenary hearing scheduled by the District Court? See Federal Deposit Ins. Corp. v. Daily, 973 F.2d 1525, 1532 (10th Cir. 1992). See Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1205 (10th Cir. 2003). Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). United States v. Sandoval, 29 F.32d 537, 542 fn. 6 (10th Cir. 1994). 12

23 Appellate Case: Document: Date Filed: 09/03/2014 Page: 23 STATEMENT OF FACTS The Ute Tribe purports to recount the history of the litigation over jurisdiction between it and the State of Utah, which differs markedly from Duchesne County s view of that history. The true history of the litigation between the State of Utah and the Tribe is set out below, including Utah s unique history with respect to regulatory authority over Indians and Indian lands. A. Utah History The Tribe suggests that Utah s Enabling Act and Constitution divested both the State and Duchesne County of all jurisdiction over tribal members and/or tribal 37 lands. But that is not so. In fact, Utah s governmental history reveals a 37 See Tribe s Brief, p. 12 fn.3. The Tribe likewise suggests that since it never consented to a transfer of jurisdiction to the State pursuant to 25 U.S.C. 1321(a) and 1322(a), neither the State nor Duchesne County have any authority within Indian Country. See Tribe s Brief, pp fn 2. But those statutes merely provides a mechanism whereby the State of Utah could assume direct jurisdiction and control over tribes and their members, with the consent of the Tribe and its members. It has nothing to do with the sovereign powers vested in the State of Utah and its County governments over people or lands within the borders of a reservation. In fact, Nevada v. Hicks, 533 U.S. 353 (2001) makes clear that an Indian Reservation is now considered part of the territory of the State, Id. at ; accord, Shakopee Mdewakanton Sioux Community v. City of Prior Lake, Minnesota, 771 F.2d 1153, 1156 (8th Cir. 1985)(reservation communities are still part of the State in which they are located and political subdivisions of that State), and that State sovereignty does not end at a Reservation s borders, Nevada, 533 U.S. at 362. More importantly, tribal law only preempts state law under very narrow circumstances: when it involves both on-reservation activity AND involves only Indians. Id. at 361 (2001)(emphasis added). A tribe s power to exercise civil authority 13

24 Appellate Case: Document: Date Filed: 09/03/2014 Page: 24 sovereignty and dominion over Indians and Indian lands not enjoyed by other states and not otherwise diminished by Utah s admission to the Union. 38 Originally known as the State of Deseret, Utah was established in an area which was part of the Territory of Mexico. Furthermore, the dominion which the State of Deseret enjoyed over its lands and the people residing on those lands is very instructive on the issue of Utah s (and its political subdivisions ) broad jurisdiction within a reservation s boundaries. As a separate, independent nation, the State of Deseret had its own Constitution. The following language from its Preamble reveals that the framers considered the State of Deseret to be not only a free and independent government, but to have dominion over a tremendous area of what would later become the Western United States: WE THE PEOPLE, Grateful to the SUPREME BEING for over the conduct of non-indians on fee lands within its reservation is similarly limited to those situations wherein non-indians have entered into some sort of consensual relationship with the tribe or the conduct of non-indians threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Montana v. United States, 450 U.S. 544, 566 (1980)(emphasis added). 38 In resolving conflicts between state and tribal authority, federal courts typically look to the historical relationships between the tribe, state and federal governments. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 14

25 Appellate Case: Document: Date Filed: 09/03/2014 Page: 25 the blessings hitherto enjoyed, and feeling our dependence on Him for a continuation of these blessings, DO ORDAIN, AND ESTABLISH A FREE AND INDEPENDENT GOVERNMENT, by the name of the STATE OF DESERET; including all the Territory of the United States, within the following boundaries, to wit: Commencing at 33, North Latitude where it crosses the 108, Longitude, west of Greenwich; thence running South and West to the Northern boundary of Mexico, thence West to, and down the Main Channel of the Gila River, (or the Northern line of Mexico,) and on the Northern boundary of the Lower California to the Pacific Ocean; thence along the Coast North Westerly to the 118, 30' of west Longitude; Thence North to where said line intersects the dividing ridge of the Sierra Nevada Mountains to the dividing range of the Mountains, that separate the Waters flowing into the Columbia River, from the Waters running into the Great Basin; thence Easterly along the dividing range of Mountains that separate said waters flowing into the Columbia river on the North, from the waters flowing into the Great Basin on the South, to the summit of the Wind River chain of mountains; thence South East and South by the dividing range of Mountains that separate the waters flowing into the Gulf of Mexico, from the waters flowing into the Gulf of California, to the place of BEGINNING; as set forth in a map drawn by Charles Preuss, and published by order of the Senate of the United States, in There is no reference in the Constitution of the State of Deseret to Indians or Indian lands. But, importantly, the lands and people falling within the jurisdiction of the State of Deseret included Indian lands and their Indian residents 15

26 Appellate Case: Document: Date Filed: 09/03/2014 Page: 26 and the Constitution of the State of Deseret established legislative, executive and judicial branches to govern all lands and people within the State of Deseret, including Indians. The Constitution of the State of Deseret clearly provided for its governance and dominion over all people and lands lying within its boundaries, which included Indians and Indian lands. Moreover, the State of Deseret s dominion over tribal governments did not change when it became a United States territory. In 1850, Utah officially became a territory of the United States of America. The Organic Act of the Territory of Utah established the Utah Territory and, like the Constitution of the State of Deseret, does not reference either Indians or 39 Indian lands. Instead, it established the boundaries of the Utah Territory, changed the name from State of Deseret to Utah, created the Utah Territorial Government and vested it with jurisdiction over all people and lands within the Utah Territory. The Utah Territory was much smaller than the former State of Deseret and included only what would become the States of Utah and Nevada, as well as the western half of Colorado. Within this territory were Indian lands and Indian people, including the Ute Tribe, over whom the Utah Territorial 39 See 9 Stat. 453, Ch

27 Appellate Case: Document: Date Filed: 09/03/2014 Page: 27 Government could exercise jurisdiction. The Utah Organic Act, with its recognition of the Utah Territorial Government s dominion and governance over all persons residing within the Utah Territory, is significant when compared with the Organic Acts for other western states. For example, the Organic Act creating the Montana Territory placed the following limitation upon that Territorial Government s jurisdiction over Indians and/or their lands: That nothing in this Act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said territory so long as such rights shall remain unextinguished by treaty between the United States and such Indians or to include any territory which by treaty within the Indian tribes, is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries and constitute no part of the territory of Montana, until said tribes shall signify their assent to the president of the United States to be included within said territory, or to affect the authority of the government of the United States to make any regulations respecting such Indians, their lands, or property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if this Act had never passed Stat. 85, Ch. 95, 1.(emphasis added). 17

28 Appellate Case: Document: Date Filed: 09/03/2014 Page: 28 With the creation of the Montana Territory, Congress reserved to itself jurisdiction over Tribes and Tribal lands; whereas Utah s Organic Act, on the other hand, did not place such limitations/restrictions on the Utah Territorial Government s jurisdiction over Indians or Indian lands. The Utah Territory was vested with complete jurisdiction over tribes and tribal lands, and that did not change with Utah statehood. Utah became part of the United States in In order to obtain admission to the Union, the Utah Constitution had to disclaim all right and title... to all lands lying within said limits owned or held by any Indian or Indian tribe, and that 41 until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of 42 the United States. But absolute jurisdiction is not the same as exclusive 43 jurisdiction and control. By this language the State of Utah merely 41 This language clearly reserved to the United States the right to extinguish title to lands held by the Ute Tribe. 42 Utah Constitution, Art. III, Section See Organized Village of Kake v. Eagan, 369 U.S. 60, 67 (1962)(construing identical language in the Alaska Statehood Act as not ousting Alaska from asserting its regulatory authority over Indian lands). See also Hicks, 533 U.S. at (state 18

29 Appellate Case: Document: Date Filed: 09/03/2014 Page: 29 acknowledged Congress s plenary power over tribes and tribal lands; it did not divest the State of Utah of the jurisdiction over tribes and tribal lands that had 44 passed to it from the Utah Territorial Government. B. Ute I Almost 35 years ago the Ute Tribe, consisting of approximately 2, members, commenced a lawsuit in the United States District Court of Utah against the State of Utah, Duchesne County, Roosevelt City, Duchesne City and Myton, Utah to determine the extent of the potential application of the Tribe s 46 Law and Order Code. That lawsuit, to which other counties that were within the 47 original Reservation were not parties, later became known as Ute I. sovereignty does not end at a reservation s border). 44 See Id. 45 The Ute Tribe currently has only 3,120 members. See (last visited Aug. 11, 2014). 46 See Original Complaint, App. 94. The land area that the Ute Tribe, through its litigation, currently asserts the exclusive right to govern extends from Duchesne County east to the Colorado border and south almost to I-70. Whether Indian or non-indian, those persons living or present in that vast area of Utah would be subjected to the governmental authority of the Ute Tribe and would enjoy none of the protections of the Bill of Rights or the Fourteenth Amendment. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). 47 Carbon, Emery, Grand, Uintah and Wasatch Counties were likewise not named as parties in that lawsuit, even though lands within these Counties had been part of the 19

30 Appellate Case: Document: Date Filed: 09/03/2014 Page: 30 Congress passed legislation in 1894 providing that Reservation lands were to be allotted to members of the Ute Tribe, and that the remaining unallotted 48 lands were to be restored to the public domain. In Ute I, the District Court held that Congress s decision to open unallotted lands within the Uintah Valley Reservation to settlement by non-indians did not diminish the Uintah Valley Reservation as to those unallotted lands. However, the District Court did hold that when Congress authorized the President in 1905 to set apart and reserve lands in 49 the Reservation as a forest reserve and thereafter the President by proclamation 50 established the Uinta National Forest Reserve, this demonstrated Congress s clear intent to diminish the Uintah Valley Reservation by removing the Uinta 51 National Forest from the Reservation, particularly because the Ute Tribe was original Ute Reservation. Uintah County, however, eventually joined that case to protect its interests. The Counties not parties to Ute V, but into which the Tribe now contends that its Reservation extends, all have building codes and other public health and safety ordinances which they, and not the State, enforce. See (last visited August 11, 2014) Act of Aug. 15, 1894, ch. 290, 28 Stat. 286, Stat Stat. 3113, Ute Indian Tribe v. Utah, 521 F. Supp. 1072, 1136 (D. Utah. 1981). 20

31 Appellate Case: Document: Date Filed: 09/03/2014 Page: compensated for these removed lands by the United States. Additionally, the District Court held that the language in the 1894 Act showed a clear congressional intent to disestablish the Uncompahgre Reservation. C. Ute II Under Ute I, unallotted lands remained part of the Reservation but the Uinta National Forest was not part of the Reservation. Ute I was appealed, and a twojudge majority of the Tenth Circuit affirmed the District Court decision that the Uinta National Forest and the Uncompahgre Reservation had been withdrawn 53 from their original reservation status. The panel also held that Congress had diminished the Uintah Valley Reservation. That decision has become known as Ute II. However, after a rehearing en banc, a majority of the Tenth Circuit held that the withdrawal of the National Forest Lands did not diminish the Reservation 54 and that the Uncompahgre remained part of the Reservation. This decision became known as Ute III See id. at 1140 fn Ute Indian Tribe v. Utah, 716 F.2d 1298, 1311 (10th Cir. 1983). Ute Indian Tribe v. Utah, 773 F.2d 1087, 1090 (10th Cir. 1983) (en banc). 21

32 Appellate Case: Document: Date Filed: 09/03/2014 Page: 32 D. Ute III The Ute III Court reached its decision, completely contrary to that of 55 the panel in Ute II, applying the then newly-decided case of Solem v. Bartlett. Based upon what would later be acknowledged, by both the Tribe and the Tenth Circuit, to be a misreading of Solem, Ute III concluded that the congressional language restoring the National Forest Lands to the public domain was not the same as a congressional state of mind to diminish, and hence did not reliably establish the clear and unequivocal evidence of Congress intent to change the 56 boundaries. Thus, under Ute III, the Uinta National Forest remained part of the Reservation and both the Uintah Valley and Uncompahgre remained undiminished U.S. 463 (1984) F.2d at Judge Barrett dissenting, however, emphasized that the Ute Tribe had been paid by the United States for the National Forest land. Id. at

33 Appellate Case: Document: Date Filed: 09/03/2014 Page: 33 E. Perank and Hagen Meanwhile, State v. Perank, and State v. Hagen, had been decided, both of which involved State felony prosecutions of Indians for crimes committed in Myton and Roosevelt, Utah, two towns that had been within the original boundaries of the Reservation. Reviewing the same legislation and case law as the Ute III Court, the Utah Supreme Court concluded that the Reservation had been diminished, that the towns of Myton and Roosevelt were not part of the 59 Reservation and that the State had jurisdiction to prosecute. The United States Supreme Court granted certiorari in Hagen to resolve the conflict between the Tenth Circuit s Ute III decision, and those of the Utah Supreme Court. 60 In 1994, the United States Supreme Court affirmed the Utah Supreme Court, expressly considering and rejecting both the Ute III analysis and its holding that (1994) P.2d 927 (Utah 1992). 858 P.2d 925 (Utah 1992). Perank, 858 P.2d at 953; Hagen, 858 P.2d at Hagen v. Utah, 507 U.S (1994); see Hagen v. Utah, 510 U.S. 309,

34 Appellate Case: Document: Date Filed: 09/03/2014 Page: the Reservation had not been diminished. The Hagen Court, however, did not directly address the jurisdictional status of National Forest Lands or the Uncompahgre Reservation because those issues were not before the Hagen Court for consideration. But the reasoning of the Hagen Court left no doubt that National Forest lands and the Uncompahgre were no longer part of the Ute Reservation, which has become even clearer given subsequent Supreme Court 62 decisions such as Nevada v. Hicks, and Plains Commerce Bank v. Long Family Land and Cattle Company, Inc; and Strate v. A-1 Contractors, which are in consistent with Ute III and Ute V. F. Ute IV Following the Hagen decision, the Ute Tribe filed a Motion in District Court for a permanent injunction preventing the defendants from enforcing or relying 61 Hagen v. Utah, 510 U.S. 399, (1994), rehearing denied, 511 U.S (1994). Hagan specifically found that Roosevelt City and Myton City were NOT Indian Country. Nevertheless, despite the Hagen ruling that Roosevelt City and Myton City were not Indian Country the Tribe has also sued both those cities seeking an injunction precluding them from prosecuting Indians for offenses committed within their respective city limits, which remains before the District Court. Complaint, App U.S. 353 (2001). 554 U.S. 316 (2008). 520 U.S. 438 (1997). 24

35 Appellate Case: Document: Date Filed: 09/03/2014 Page: 35 upon the Utah Supreme Court s decisions in Perank and Hagen. In response, the 65 District Court issued a ruling that is now known as Ute IV. In Ute IV, the District Court reasoned that even though the Ute III decision conflicted with and was overruled by the United States Supreme Court s decision in Hagen, under the Law of the Case Doctrine the District Court was bound to follow the mandate of 66 Ute III. Not surprisingly, the case went back before the Tenth Circuit, and the resulting decision is now referred to as Ute V. 67 G. Ute V In Ute V, both the Tenth Circuit and the Ute Tribe recognized that the 68 reasoning in Hagen effectively overruled Ute III in its entirety. In fact, the Ute Ute Indian Tribe v. Utah, 935 F. Supp (D. Utah 1996). Id. at Ute Indian Tribe v. State of Utah, 114 F.3d 1513 (10th Cir. 1997). Hereafter, Ute I, Ute II, Ute III, Ute IV and Ute V will be collectively referred to as the Ute cases. 68 This Court, in case involving a similar issue with respect to the Navajo Reservation, questioned the underpinnings of Ute III s conclusion about nondiminishment of the Ute Reservation, characterizing it as unexamined and unsupported. See Pittsburg & Midway Coal Co. v. Yazzie, 909 F.2d 1387, 1400 (10th Cir. 1990)(refusing to apply the Ute III analysis, and distinguishing the relevant statutory language that restored Navajo Reservation lands to the public domain). It is also noteworthy that Pittsburg was decided before Hagen, Hicks and Plains Commerce Bank in which the Court provided guidance with respect to the diminishment of a reservation and a State s jurisdiction over reserved lands. 25

36 Appellate Case: Document: Date Filed: 09/03/2014 Page: 36 Tribe argued that, even though Ute III was erroneous in light of Hagen, the 69 Finality of Judgments Rule prohibited departure from the Ute III. And the Tenth Circuit agreed in large part with the Tribe s argument, and the Court s stated reasons for doing so are both instructive as to the application of this Rule and undermine the results eventually reached by the Court in Ute V. The Tenth Circuit noted that finality is of particular importance where a change in law threatens to disrupt a final tort award or other settled judgment based on then-existing legal principles. The need for finality, however, applies with less force to judgments that are not inherently final but are rather of a 70 continuing nature. Where a prior erroneous judgment necessarily affects continuing conduct, the interests of uniformity may demand departure from the prior judgment to bring a court s view if the law into line with the prevailing 71 view. To illustrate the continuing conduct exception to the Finality of Judgments Rule the Ute V Court cited to cases such as Christian v. Jemison, F.3d at Id. at 1526.(Quoting American Iron & Steel Inst v. E.P.A., 560 F.2d 589,599 (3rd Cir. 1977) F.3d at F.2d 52 (5th Cir. 1962). 26