Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 1 No. 15-4120 In the United States Court of Appeals for the Tenth Circuit RICHARD DOUGLAS HACKFORD, v. Plaintiff-Appellant, STATE OF UTAH, GARY R. HERBERT, in his capacity as Governor of Utah, SEAND D. REYES, in his capacity as Utah Attorney General, WASATCH COUNTY, SCOTT SWEAT, in his capacity as Wasatch County Attorney, and TYLER J. BERG, in his capacity as Assistant Wasatch County Attorney, Defendants-Appellees. On appeal from the U.S. District Court for the District of Utah, The Honorable Bruce S. Jenkins presiding, Case Nos. 2:14-cv-645 and 75-cv-408 BRIEF OF STATE DEFENDANTS-APPELLEES Tyler R. Green Utah Solicitor General Sean D. Reyes Attorney General 350 N. State Street, Ste. 230 Salt Lake City, Utah 84114 801-538-1191 tylergreen@utah.gov Stanford E. Purser Deputy Solicitor General Randy S. Hunter Katharine H. Kinsman Assistant Attorneys General 160 East 300 South, 5th floor Salt Lake City, Utah 84114 801-366-0533 spurser@utah.gov ORAL ARGUMENT NOT REQUESTED
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 2 TABLE OF CONTENTS TABLE OF AUTHORITIES................................... ii STATEMENT OF PRIOR OR RELATED APPEALS...............iv JURISDICTION............................................ iv ISSUES PRESENTED........................................v STATEMENT OF THE CASE AND FACTS...................... 1 SUMMARY OF THE ARGUMENT..............................4 STANDARD OF REVIEW.................................... 5 ARGUMENT............................................... 6 I. The Ute Partition Act gives Utah jurisdiction over mixed-blood Utes like Mr. Hackford....................... 6 II. Mr. Hackford s traffic violations did not occur in Indian country...............................................10 III. The district court properly denied a preliminary injunction...12 CONCLUSION.............................................13 STATEMENT REGARDING ORAL ARGUMENT................ 13 CERTIFICATE OF COMPLIANCE WITH RULE 32(a).............14 ECF CERTIFICATIONS..................................... 14 CERTIFICATE OF SERVICE.................................15 i
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 3 TABLE OF AUTHORITIES Cases Affiliated Ute Citizens of Utah v. U.S., 406 U.S. 128 (1971)......................................7 Attorney General of Okla. v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir. 2009).............................. 5 Gardner v. U.S., 25 F.3d 1056 (10th Cir. 1994)..............................8 Gardner v. Wilkins, 535 F. App x 767 (10th Cir. 2013)........................ 8, 9 Hackford v. Babbitt, 14 F.3d 1457 (10th Cir. 1994)..............................7 Hagen v. Utah, 510 U.S. 399 (1994)......................................6 Holdeman v. Devine, 572 F.3d 1190 (10th Cir. 2009).............................6 Solem v. Bartlett, 465 U.S. 463 (1984)......................................6 State v. Gardner, 827 P.2d 980 (Ut. Ct. App. 1992)........................... 8 State v. Reber, 2007 UT 36, 171 P.3d 406.................................8 U.S. v. Murdock, 919 F. Supp. 1534 (D. Utah 1996).......................... 7 ii
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 4 U.S. v. Von Murdock, 132 F.3d 534 (10th Cir. 1997)..............................9 Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc).................10, 11 Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 790 F.3d 1000 (10th Cir. 2015)...........................6, 9 Statutes 25 U.S.C. 677........................................1, 6, 7, 9 iii
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 5 STATEMENT OF PRIOR OR RELATED APPEALS The State of Utah, Governor Gary R. Herbert, and Attorney General Sean D. Reyes (State Defendants), are not aware of any pending appeals related to Mr. Hackford (and do not consider the various prior and current appeals arising from the Ute Indian Tribe litigation to be related to him). Mr. Hackford did file a prior appeal in this matter, which the Court dismissed pursuant to Rule 42(b) on December 30, 2014. Hackford v. State of Utah, No. 14-4116; App. 196. STATEMENT OF JURISDICTION The State Defendants do not contest Mr. Hackford s recitation of the facts and law giving this Court jurisdiction to review his appeal. iv
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 6 ISSUES PRESENTED 1. Did the district court correctly decide that the Ute Partition Act subjects Mr. Hackford to the State s criminal jurisdiction based on his undisputed status as a mixed-blood Ute Indian? The issue was raised below and addressed by the district court. Appendix (App.) 116-117, 199-200, 358-363. 1 2. Did the district court correctly decide that Mr. Hackford s traffic violation did not occur in Indian country, therefore subjecting him to the State s criminal jurisdiction? This issue was raised below and addressed by the district court. App. 200-02, 358-363. 3. Did the district court properly deny Mr. Hackford s request for a preliminary injunction enjoining the state court criminal proceedings against him? This issue was raised below and addressed by the district court. App. 199, 362-363. 1 Appellant s Appendix, as corrected and filed on November 4, 2015, has two different sets of appendix page numbers in the lower right hand corner. State Defendants cite to the appendix page numbers farthest to the right (which are formatted as 1 of 439 ). v
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 7 STATEMENT OF THE CASE AND FACTS Mr. Hackford admits he is not a member of any federallyrecognized Indian tribe. App. 256, 286-287, 297, 298-299, 326-327. Rather, the Federal Register identifies him as a mixed-blood Ute Indian with enrollment number 142 under the Ute Partition Act, 25 U.S.C. 677. App. 208. In late 2013, a State highway patrol trooper stopped Mr. Hackford on State Road 40 for traffic violations committed around milepost 44. App. 207, 257. That part of S.R. 40 runs near the northern end of Strawberry Reservoir and lies within the Uinta National Forest and the historic boundaries of the Uintah & Ouray Indian Reservation. App. 208. But the Indian country status of this area began to change in 1905, when President Roosevelt exercising congressionally-granted authority withdrew certain lands from the reservation and set them apart for use as a reservoir site. App. 209. Five years later, in 1910, Congress expressly extinguished all of the Indians right, title and interest to these withdrawn lands. App. 209; Supplemental Appendix (Supp. App.) 017 (copy of the 1910 Act). This area became known as the Strawberry Valley Project. App. 209. Mr. Hackford s traffic violations 1
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 8 and the traffic stop all happened in this reservoir-project area that had been withdrawn from the reservation and stripped of all Indian interests, rights, or title. App. 209. Mr. Hackford was later charged with and convicted of the traffic violations in Wasatch County Justice Court, while protesting that the State lacked jurisdiction over his conduct as an alleged Indian driving in Indian country. App. 90, 207; Aplt. Br. at 7-9. Mr. Hackford then appealed his convictions to the state district court, Fourth Judicial District, Wasatch County, Case No. 155500004. App. 207-208. With the state-court proceedings still pending, Mr. Hackford filed the underlying suit requesting, in relevant part: (1) a declaratory judgment that the Defendants lacked jurisdiction to prosecute his traffic violations, and (2) a permanent injunction against Defendants further prosecuting him for those violations. 2 App. 110-113. Mr. Hackford also simultaneously filed a motion for preliminary injunction to stop Defendants prosecution of his traffic violations. App. 146-175. 2 Hackford s complaint also requested declaratory judgments and permanent injunctions on other issues, App. 110-113, but he does not appear to challenge in this appeal the dismissal of those other claims. 2
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 9 The district court quickly dismissed the complaint, App. 166-167, but later vacated the dismissal and ordered Defendants to answer the complaint. App. 172. The Defendants filed their answers and also opposed the preliminary injunction motion with their own response briefing and supporting evidence. App. 115-162, 174-195, 197-204. The district court heard arguments on the preliminary injunction request and ultimately denied the motion and sua sponte dismissed the complaint with prejudice. App. 356-362. The court concluded that Mr. Hackford was not a member of a federally-recognized Indian tribe and that the traffic violations did not occur in Indian country. App. 361-362. The court subsequently denied Mr. Hackford s motion to reconsider. App. 365-367. In the meantime, the state district court has repeatedly stayed Mr. Hackford s prosecution during the pendency of the federal court proceedings. The current stay lasts until March 16, 2016. See Docket 3
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 10 Report, State v. Hackford, No. 155500004, Fourth District Court, Wasatch County, Utah (Supp. App. 024-028). 3 SUMMARY OF THE ARGUMENT The district court properly denied a preliminary injunction and dismissed the complaint. To avoid Utah s criminal jurisdiction, Mr. Hackford must show that he is a member of a federally-recognized Indian tribe and that the traffic violations occurred in Indian country. But it is undisputed that Mr. Hackford is a mixed-blood Ute, not a member of federally-recognized Indian tribe. The Ute Partition Act expressly subjects mixed-blood Utes to state laws to the same degree as any other citizen. Federal and State case law have consistently held that mixed-blood Utes may be criminally prosecuted in Utah state courts. Nothing Mr. Hackford argues undermines these dispositive facts and law regarding his Indian status vis-à-vis Utah s criminal jurisdiction. In addition, this Court has already rejected the argument made again by Mr. Hackford that the Ute Partition Act violates equal protection principles. 3 Though not part of the record, the state district court s docket sheet is a publicly available document of which the Court can take judicial notice. It is included in the supplemental appendix for the convenience of the Court. 4
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 11 As to the location of the violations, this Court has previously held that the relevant lands were withdrawn from the reservation and all Indian rights, title and interest in the land were expressly extinguished by act of Congress. Even the Ute Tribe agrees that the lands at issue are not part of Indian country. Finally, there is no basis for a preliminary injunction (even assuming Mr. Hackford were correct on the merits) because the state court has already repeatedly stayed its proceedings during the pendency of this federal litigation. STANDARD OF REVIEW The Court reviews the denial of a preliminary injunction for abuse of discretion. Attorney General of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 775 (10th Cir. 2009). An abuse of discretion occurs if the district court commits an error of law or makes clearly erroneous factual findings. Id. The district court also entered final judgment on Mr. Hackford s claims based on the parties Joint Pre-Trial Order, the parties briefing and exhibits regarding the preliminary injunction, and the oral arguments of counsel. App. 357-358. In essence, the district court 5
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 12 conducted a bench trial. In that case, the Court reviews the district court s factual findings for clear error and its legal conclusions de novo. Holdeman v. Devine, 572 F.3d 1190, 1192 (10th Cir. 2009). ARGUMENT The State recognizes, of course, that it lacks jurisdiction over crimes committed by members of federally-recognized Indians tribes in Indian country. Hagen v. Utah, 510 U.S. 399, 407 (1994); Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 790 F.3d 1000, 1003-04 (10th Cir. 2015). Within Indian country, the State s jurisdiction is limited to crimes by non-indians against non-indians and victimless crimes by non-indians. Solem v. Bartlett, 465 U.S. 463, 465 n.2 (1984); Ute Indian Tribe, 790 F.3d at 1003-04. To prevail on appeal Mr. Hackford therefore must prove that he belongs to a federally-recognized Indian tribe and that the traffic violations took place in Indian country. He cannot prove either fact. I. The Ute Partition Act gives Utah jurisdiction over mixedblood Utes like Mr. Hackford. State Defendants will not rehearse the purposes, procedures, and effects of the Ute Partition Act, 25 U.S.C. 677 et seq., which have been outlined elsewhere. See, e.g., Affiliated Ute Citizens of Utah v. U.S., 406 6
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 13 U.S. 128, 133-139 (1971); Hackford v. Babbitt, 14 F.3d 1457, 1458-1464 (10th Cir. 1994); U.S. v. Murdock, 919 F. Supp. 1534, 1535-1537 (D. Utah 1996). To resolve this appeal, it suffices to say that all parties agree Mr. Hackford is a mixed-blood Ute for purposes of the Ute Partition Act, App. 208, and that mixed-blood Utes... no longer ha[ve] the status of federally-recognized Indians. Murdock, 919 F. Supp. at 1537. Moreover, Mr. Hackford is not a member of any other federallyrecognized Indian tribe. App. 256, 286-287, 297, 298-299, 326-327. Importantly, the Ute Partition Act expressly mandates that mixed-blood Utes are subject to the same State laws as any other State citizen: such individual shall not be entitled to any of the services performed for Indians because of his status as an Indian. All statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to such member over which supervision has been terminated, and the laws of the several States shall apply to such member in the same manner as they apply to other citizens within their jurisdiction. 25 U.S.C. 677v (emphasis added). Based on the Ute Partition Act, various state and federal courts have recognized that Utah may exercise jurisdiction over mixed-blood 7
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 14 Utes. See, e.g., Gardner v. U.S., 25 F.3d 1056, *3 (10th Cir. 1994) (unpublished); ( Where a termination act such as [the Ute Partition Act] ended the federal trust relationship with an Indian and exposed him to state law, he is subject to state criminal jurisdiction ); State v. Reber, 2007 UT 36, 23-27, 171 P.3d 406 (holding the State had jurisdiction over defendants, who could not claim Indian status through ancestors whose Indian status was terminated by Ute Partition Act); State v. Gardner, 827 P.2d 980, 981 (Ut. Ct. App. 1992) ( By terminating federal control over mixed-blood Utes, Congress expressly transferred jurisdiction over them to state courts. ); see also Gardner v. Wilkins, 535 F. App x 767, 767-768 (10th Cir. 2013) (unpublished) (affirming dismissal of claims where plaintiff asserting Indian status had already litigated Utah s authority over him and lost ). Mr. Hackford makes myriad arguments about why he should still be considered a federally-recognized Indian immune from state court jurisdiction. But none of the arguments meaningfully address, much less undermine, the dispositive facts and controlling law: Mr. Hackford is a mixed-blood Ute and a controlling federal statute dictates that the laws of the several States shall apply to [ mixed-blood Utes] in the 8
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 15 same manner as they apply to other citizens within their jurisdiction. 25 U.S.C. 677v. The details of his heritage, dealings, and relationships on the reservation do not change the result in this case. As this Court explained in an analogous situation: Litigation regarding Gardner's Indian status is a road well-traveled. He does not claim to be a member of a federally recognized tribe. Rather, he claims only to be a descendant of a former member, as are many other Americans. Despite his best efforts in federal, state, and tribal court, this heritage does not entitle him to Indian status whether or not he lives and works on the reservation. Gardner v. Wilkins, 535 F. App x at 767. Unable to get around the Ute Partition Act, Mr. Hackford argues that it violates equal protection principles. But the Court has already rejected that argument, among other constitutional challenges to the Act. U.S. v. Von Murdock, 132 F.3d 534, 542 (10th Cir. 1997) ( the Act does not constitute improper racial discrimination, and we reject Mr. Murdock s claims that the Act violates due process and equal protection under the Fifth Amendment. ); see also Ute Indian Tribe of the Uintah & Ouray Reservation v. Probst, 428 F.2d 491, 498 (10th Cir.1970 ) (on 9
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 16 denial of reh'g) (per curiam) ( the classification into the two groups was supported by the Indians, was relevant to the purposes of the legislation, and had a reasonable basis. We find no arbitrary or capricious discrimination which violates Fifth Amendment due process. ). In sum, Utah state courts can exercise criminal jurisdiction over Mr. Hackford because he is a mixed-blood Ute subject to the same State laws as every other Utah citizen. The district court can be affirmed on this ground alone. II. Mr. Hackford s traffic violations did not occur in Indian country. Even if Mr. Hackford belonged to a federally-recognized Indian tribe, the State could still prosecute him because the traffic violations did not occur in Indian country. This Court long ago decided that the Strawberry Reservoir lands at issue here are no longer part of Indian country. Indeed, every opinion from Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc) modified on other grounds, Ute Indian Tribe v. State of Utah, 114 F.3d 1513 (10th Cir. 1997), makes the point that Congress clearly extinguished any Indian interest in the lands pursuant to the 10
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 17 Act of April 4, 1910, ch. 140, 36 Stat. 269. Ute Indian Tribe, 773 F.2d at 1089 (the 1910 Act clearly extinguished a portion of the reservation lands for reclamation purposes ); id. at 1098 (Seymour, J., concurring) ( Congress was completely clear [in the 1910 Act] when it terminated Uintah rights in... the Strawberry Reservoir Project lands ); id. at 1099 (noting Indian rights were actually terminated only when Congress passed the 1910 Act creating the Strawberry Reservoir Project ); id. at 1115 (Seth, J., dissenting) (quoting 1910 Act and stating Congress clearly extinguished any Indian interest in the Strawberry River lands and noting that [n]either side disputes the trial court s holding that the reservation was diminished to the extent of the 56,000- acre Strawberry River withdrawal ); see also Supp. App. 017 (copy of the 1910 Act). This point is so settled that even the Ute Tribe s counsel appeared at the preliminary injunction hearing to state, in part, that the Strawberry Reservoir lands at issue here are not part of the Tribe s reservation. App. 312-319; see also Supp. App. 001-005 (Ute Indian Tribe s Motion to Dismiss for Lack of Jurisdiction). 11
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 18 Mr. Hackford largely ignores the Court s prior holdings and the Ute Tribe s own position. Instead, he argues that a 1988 federal law shows the relevant land area now constitutes Indian country. Aplt. Br. at 23-25. But the law, even as described by Mr. Hackford, is basically a land transfer between federal agencies that designates which agency will administer the land. Supp. App. 019-023 (copy of Public Law 100-563, October 31, 1988, 102 Stat. 2826). The statute does nothing to reverse the express language of the 1910 Act extinguishing all Indian right, title and interest to the land nor does it undermine this Court s prior holding as to the withdrawn status of the land. Neither Mr. Hackford s traffic violations nor the stop occurred in Indian country. He is therefore subject to state court jurisdiction regardless of whether he is part of a federally-recognized Indian tribe. The district court can be affirmed on this ground alone. III. The district court properly denied a preliminary injunction Based on the foregoing analyses, Mr. Hackford cannot show a substantial likelihood of success on the merits and is therefore not entitled to a preliminary injunction. State Defendants will not belabor the other injunction factors. But one point remains worth making. 12
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 19 Even if Mr. Hackford were right on the merits, there is still no need for a preliminary injunction. As Mr. Hackford acknowledges, the state district court continues to stay the prosecution during the pendency of the federal proceedings. Aplt. Br. at 9; Supp. App. 024-028. A preliminary injunction from a federal court would be superfluous. CONLCUSION For the foregoing reasons, the Court should affirm the district court s dismissal of Mr. Hackford s complaint and denial of a preliminary injunction. STATEMENT REGARDING ORAL ARGUMENT State Defendants do not believe oral argument is needed to resolve this matter. But State Defendants will willingly participate in oral argument should the Court deem it appropriate. Respectfully submitted, s/ Stanford E. Purser Tyler Green Utah Solicitor General Stanford E. Purser Deputy Solicitor General Randy S. Hunter Katharine H. Kinsman Assistant Attorneys General 13
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 20 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because: [x] this brief contains 2,565 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: [x] this brief has been prepared in a proportionally spaced typeface using Word in 14 point Century Schoolbook font. s/ Stanford E. Purser ECF CERTIFICATIONS Pursuant to Section II(I) of the Court s CM/ECF User s Manual, the undersigned certifies that: 1. all required privacy redactions have been made; 2. hard copies of the foregoing brief required to be submitted to the clerk s office are exact copies of the brief as filed via ECF; and 3. the brief filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials v. 2.1.111.6.0, and according to the program is free of viruses. s/ Stanford E. Purser 14
Appellate Case: 15-4120 Document: 01019548299 Date Filed: 01/04/2016 Page: 21 CERTIFICATE OF SERVICE I hereby certify that on the 4th day of January, 2016, a true, correct and complete copy of the foregoing State Defendants Answer Brief was filed with the Court and served on counsel of record via the Court s ECF system: s/ Stanford E. Purser 15