case no. 14-4034 in the united states court of …

CASE NO. 14-4034

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, UTAH, a federally recognized Indian tribe,

Plaintiff - Appellant, v. THE STATE OF UTAH; WASATCH COUNTY, a political subdivision of the State of Utah; GARY HERBERT, Governor of the State of Utah; SEAN D. REYES, Attorney General for the State of Utah; SCOTT SWEAT, Wasatch County Attorney; and TYLER J. BERG, Wasatch Deputy County Attorney, Defendants - Appellees.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

On Appeal from the United States District Court for the District of Utah, Central Division

The Honorable Judge Dee Benson No. 2:13-cv-01070

APPELLANT’S BRIEF

Jeffrey S. Rasmussen Fredericks Peebles & Morgan LLP

1900 Plaza Drive Louisville, Colorado 80027 Telephone: 303-673-9600

Facsimile: 303-673-9155/9839 June 2, 2014

Appellate Case: 14-4034 Document: 01019258215 Date Filed: 06/02/2014 Page: 1

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TABLE OF CONTENTS

JURISDICTION ............................................................................................................................. 2

STATEMENT OF THE ISSUES.................................................................................................... 3

STATEMENT OF THE CASE ....................................................................................................... 3

A. The First Adjudication of the Tribe’s Reservation Boundaries ........................................... 5

B. The State of Utah’s Second Relitigation of the Tribe’s Reservation Boundaries in the Tribe’s Absence .......................................................................................................................... 6

C. The State of Utah’s Third Relitigation of the Tribe’s Reservation Boundaries................... 7

D. The State’s Attempted Fourth Relitigation of the Uintah and Ouray Reservation Boundaries .................................................................................................................................. 8

E. Facts related to Utah’s prosecution of Ute tribal member Lesa Ann Jenkins for on-Reservation misdemeanor offenses ..................................................................................... 10

F. Procedural History of the Action Below ........................................................................... 11

STATEMENT OF STANDARD OF REVIEW ........................................................................... 14

SUMMARY OF THE ARGUMENT ........................................................................................... 15

DISCUSSION OF LAW ............................................................................................................... 18

I. THE DISTRICT COURT ERRED BECAUSE THE TRIBE WILL SUFFER IRREPARABLE HARM IF THE CURRENT INJUNCTION IS NOT MAINTAINED UPON REMAND ..................................................................................................................................... 18


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TABLE OF AUTHORITIES

Cases Bishop Paiute Tribe v. County of Inyo, 275 F.3d 893 (9th Cir. 2002) .......................................... 36 Brooks v. Barbour Energy Corp., 804 F.2d 1144 (10th Cir. 1986) ........................................ 29, 32 Brown v. Board of Education, 347 U.S. 483 (1954) ..................................................................... 39 Browning Debenture Holders’ Committee v. DASA Corp., 454 F. Supp. 88 (S.D. New York 1978)

................................................................................................................................................... 30 California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) ........................................ 21 Choctaw Nation of Oklahoma v. Oklahoma, 724 F. Supp. 2d 1182 (W.D. Okla. 2010) ........ 25, 38 Coeur D'Alene Tribe v. Hammond, 244 F. Supp.2d 1264 (D. Idaho) .......................................... 35 Comanche Nation v. United States, 393 F. Supp. 2d 1196 (W.D. Okla. 2005) ............................ 34 Decoteau v. District County Court, 420 U.S. 425 (1975) ............................................................. 22 Duchesne County v. Ute Tribe, 522 U.S. 1107 (1998) ..................................................... 10, 11, 12 Farmington v. Benally, 892 P.2d 629 (N.M. App. 1995) ............................................................. 37 G.C. and K.B. Investments, Inc. v. Wilson, 326 F.3d 1096 (9th Cir. 2002) .................................. 30 Hagen v. Utah, 510 U.S. 399 (1994) .................................................................................... 7, 8, 10 Indian Country, U.S.A., Inc. v. Okla. Tax Comm'n., 829 F.2d 967 (10th Cir. 1987) .............. 36, 38 Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701 (2003) ................................................... 36 Jackson v. Carter Oil Co., 179 F.2d 524 (10th Cir. 1950) ..................................................... 31, 32 Kidder, Peabody & Co., Inc. v. Maxus Energy Corp., 925 F.2d 556 (2d Cir. 1991) ................... 30 Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163 (10th Cir. 1998) .......... 17, 18, 33, 34 Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976) .................................. 22, 23


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Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001) ....... 24, 25, 36, 37 Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818 (10th Cir. 2007) ............................. 32 Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990) ............................................................................... 35 Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286 (5th Cir. 1992)......................... 30 Seneca-Cayuga Tribe of Oklahoma v. Oklahoma, 874 F.2d 709 (10th Cir. 1989) .... 21, 25, 36, 37 Seymour v. Superintendent, 368 U.S. 351 (1962) ......................................................................... 23 Solem v. Bartlett, 465 U.S. 463 (1984) ......................................................................................... 24 South Dakota v. Cummings, 679 N.W.2d 484 (S.D. 2004) .......................................................... 36 State v. Valdez, 65 P.3d 1191 (Utah App. 2003) .......................................................................... 24 United Keetoowah Bank of Cherokee Indians v. Oklahoma, 927 F.2d 1170 (10th Cir. 1991) .... 21 United States v. Felter, 752 F.2d 1505 (10th Cir. 1985) .............................................................. 24 Utah v. Ute Indian Tribe, 479 U.S. 994 (1986) .......................................................................... 5, 7 Ute Indian Tribe v. State of Utah, 521 F. Supp. 1072 (D. Utah 1981) ................................... 4, 8, 9 Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir. 1985) ....................................... passim Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1993) .................................................... passim Ute Indian Tribe v. Utah, 935 F. Supp. 1473 (D. Utah 1996) ........................................................ 9 Ute Tribe v. Utah, 716 F.2d 1298 (10th Cir. 1983) ........................................................................ 6 Winnebago Tribe of Nebraska v. Stovall, 205 F. Supp. 2d 1217 (D. Kan. 2002) ................... 25, 38 Wyandotte Nation v. Sebelius, 443 F.3d 1247 (10th Cir. 2006) ................................................... 24 Younger v. Harris, 401 U.S. 37 (1971) ......................................................................................... 15


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Statutes 18 U.S.C. § 1151 ..................................................................................................................... 18, 19 18 U.S.C. § 1292(a)(1) .................................................................................................................... 2 25 U.S.C. § 1321(a)(1) .................................................................................................................. 19 25 U.S.C. § 1738B(b) ................................................................................................................... 18 25 U.S.C. § 1903(10) .................................................................................................................... 18 28 U.S.C. § 1331 ............................................................................................................................. 1 28 U.S.C. § 1362 ............................................................................................................................. 1 28 U.S.C. § 2201 ............................................................................................................................. 1 28 U.S.C. § 2202 ............................................................................................................................. 1 28 U.S.C. § 2283 ..................................................................................................................... 11, 25 United States Constitution Amendment 11..................................................................................... 9 Utah Code §17-18a-401 .................................................................................................................. 9 Utah Code Title 17 .......................................................................................................................... 9 Utah Const. Art. XI, § 1 .................................................................................................................. 9

Other Authorities Executive Order by President Arthur (Jan. 5, 1882) ....................................................................... 3 Executive Order by President Lincoln (Oct. 3, 1861) .................................................................... 3 Fed. R. App. Proc. 4(a)(1)(A) ......................................................................................................... 2 HANDBOOK OF FEDERAL INDIAN LAW, § 3.01 ................................................................. 18 HANDBOOK OF FEDERAL INDIAN LAW, § 3.04[2][c] ........................................................ 19


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Regulations 77 Fed. Reg. 47868 (Aug 10, 2012)................................................................................................ 1 79 Fed. Reg. 4748, 4752 (Jan. 29, 2014) ........................................................................................ 1


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JURISDICTION

This appeal is from an order of the district court denying the Tribe’s motion

for a preliminary injunction to enjoin the State of Utah’s unlawful prosecution of a

Ute tribal member for alleged traffic offenses committed within the Tribe’s

Reservation. Joint Appendix (“J.A.”) Vol. I, 24 (Tribe’s motion); J.A. Vol. II, 348

(Minute Order denying motion); J.A. Vol. II, 354 (Order denying motion).

The district court’s jurisdiction was invoked under 28 U.S.C. § 1331 (federal

question), § 1362 (civil actions brought by a federally recognized Indian Tribe), §

2201 (declaratory judgment), and § 2202 (further relief in declaratory judgment

suits).

The Ute Indian Tribe of the Uintah and Ouray Reservation is a federally

recognized Indian tribe. See 77 Fed. Reg. 47868, 47872 (Aug 10, 2012); 79 Fed.

Reg. 4748, 4752 (Jan. 29, 2014). The Tribe’s complaint raised federal questions

including (i) questions regarding the federal treaties and laws creating the Tribe’s

Reservation and federal laws opening portions of the Reservation to non-Indian

settlement; (ii) questions regarding the scope of the Tribe’s retention of jurisdiction

over alleged criminal offenses by Indians committed on the Tribe’s Reservation; and

(iii) the binding effect of the Tenth Circuit’s earlier dispositive rulings on these very

issues.


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The Tribe’s complaint sought declaratory and injunctive relief to compel the

State of Utah, acting in its own name or through that of Wasatch County, and the

additionally-named Utah and Wasatch County officers, to comply with federal law,

including this Court’s earlier conclusive rulings on the federal questions presented.

The district court’s minute order denying the Tribe’s motion for preliminary

injunction was entered on March 17, 2014. J. A. Vol. II, 348. The Tribe filed its

notice of appeal from that order on March 19, 2014. J.A. Vol. II, 350. The District

Court issued an additional written order denying the motion to dismiss on March 21,

2014. J.A. Vol. II, 354. The time for appeal was 30 days from entry of the

appealed order, and the appeal was timely filed. Fed. R. App. Proc. 4(a)(1)(A).

The Tribe asserts that the order denying the motion for a preliminary

injunction is an appealable order under 18 U.S.C. § 1292(a)(1).

STATEMENT OF THE ISSUES

The sole issue on appeal is whether the district court erred in denying the

Tribe’s motion for a preliminary injunction.

STATEMENT OF THE CASE

The Ute Indian Tribe of the Uintah and Ouray Reservation (the Tribe) is a

federally recognized Indian Tribe composed of three bands of the greater Ute

Tribe—the Uintah Band, the White River Band, and the Uncompahgre Band—who

today live on the Uintah and Ouray Reservation in northeastern Utah. Ute Indian


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Tribe v. State of Utah, 521 F. Supp. 1072, 1093 (D. Utah 1981) (Ute I). To

understand portions of the history of this litigation one must know that the Uintah

and Ouray Reservation is a union of two reservations: the Uintah Valley Reservation

and the Uncompahgre Reservation. See Executive Order by President Lincoln

(Oct. 3, 1861) (reprinted in I C. Kappler, Indian Affairs: Laws and Treaties 900 (2d

ed. 1904)) (defining the Uintah Valley Reservation); Executive Order by President

Arthur (Jan. 5, 1882) (reprinted in I C. Kappler, Indian Affairs: Laws and Treaties

901 (2d ed. 1904)) (defining the Uncompahgre Reservation). All of the Uintah and

Ouray Reservation is located within the exterior boundaries of the State of Utah, and

portions of the Uintah Valley Reservation are located in Wasatch County, Utah.

The present litigation grows directly out of the United States’ unilateral

decision to open up portions of the Tribe’s Reservation to non-Indian settlement

without the consent of the Tribe and its tribal members. See generally Ute Indian

Tribe v. State of Utah, 773 F.2d 1087, 1103 (10th Cir. 1985) (Ute III). In a federal

court suit filed in 1975, the Tribe asked the federal courts to determine that the

opening of the Reservation to non-Indian settlement did not alter the exterior

boundaries of the Uintah and Ouray Reservation. As discussed in detail below, the

issues raised by the Tribe in the earlier litigation were first resolved in 1986, after the

United States Supreme Court denied certiorari review of this Court’s ruling in Ute

III, 479 U.S. 994 (1986); however, the State of Utah and its political subdivisions


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have never accepted the holding in Ute III, and consequently, they have attempted to

relitigate and relitigate and relitigate the underlying legal issues; the State now

appears intent on perpetually attempting to relitigate those issues until the State has

achieved the complete evisceration of this Court’s Ute III and Ute V rulings.

A. THE FIRST ADJUDICATION OF THE TRIBE’S RESERVATION BOUNDARIES For ten full years, beginning in 1975, the Ute Tribe, the State of Utah and

several of the State’s political subdivisions and municipalities spent incalculable

time and money exhaustively litigating in the federal courts the question of the

Tribe’s civil and criminal jurisdiction; that issue is inextricably tied to the Tribe’s

territorial jurisdiction, and by extension, the question of whether, and to what extent,

the Tribe’s Uintah Valley and Uncompahgre Reservations were disestablished or

diminished by non-Indian settlement in the early 1900s. Ute I; aff’d in part, rev’d

in part, 716 F.2d 1298 (10th Cir. 1983) (hereinafter Ute II) (subsequently vacated);

rev’d en banc Ute III, 773 F.2d 1298.

In 1985, the Tenth Circuit, sitting en banc, ruled that neither the Uintah Valley

Reservation nor the Uncompahgre Reservation had been disestablished or

diminished. Ute III, 773 F.2d at 1093. The Supreme Court denied certiorari on

December 1, 1986. Utah v. Ute Indian Tribe, 479 U.S. 994 (1986). Because the

Tenth Circuit’s en banc decision had resolved all of the issues under the Tribe’s

complaint, the federal court case was closed following the denial of certiorari.


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B. THE STATE OF UTAH’S SECOND RELITIGATION OF THE TRIBE’S RESERVATION BOUNDARIES IN THE TRIBE’S ABSENCE

Unwilling to accept the holding in Ute III, the State of Utah did an end-around

the Tenth Circuit mandate. It did so by ignoring the Ute III ruling and continuing to

prosecute Ute tribal members in Utah state courts for offenses committed within the

Tribe’s Indian Country. Predictably, tribal defendants challenged state jurisdiction

on the basis of Ute III, and because of various strategic errors made by the Tribe’s

former attorneys, the end-around worked. Through its own state courts, the State of

Utah was able to create a narrow conflict with the Tenth Circuit’s mandate in Ute III.

The United States Supreme Court accepted certiorari to resolve that conflict, and the

decision resolving that conflict is Hagen v. Utah, 510 U.S. 399 (1994). In Hagen

the Supreme Court held, contrary to the Tenth Circuit’s ruling in Ute III, that the

Uintah Valley Reservation was diminished (though not disestablished) by

non-Indian settlement in the early 1900s.

Because Hagen was a criminal case, the holding in Hagen is limited by its

facts to the specific category of lands involved in the underlying criminal case, i.e.,

lands within the Uintah Valley Reservation that “passed from trust to fee status

pursuant to non-Indian settlement under the 1902-1905 allotment legislation.” See

Ute Indian Tribe v. Utah, 114 F.3d 1513, 1529 (10th Cir. 1993) (Ute V). Following

the decision in Hagen the parties disagreed sharply over the impact of Hagen. In an


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amicus brief to the district court, the United States observed correctly that the State

of Utah’s actions had “created jurisdictional chaos” on the Tribe’s reservation:

In Ute Indian Tribe v. Utah, the federal courts clearly and finally declared that the exterior boundaries of the Reservation remain intact and that the Tribe, not the State, has criminal and civil jurisdiction over Indians within those boundaries. Ute Indian Tribe, supra, 521 F. Supp. 1072, 1155-57, aff’d, 773 F.2d 1087. Following the Tenth Circuit en banc decision, the State of Utah immediately petitioned for certiorari but the petition was denied.

That event should have been the end of the matter. Indeed, the [district court] expressed “confidence that the effectuation of this Court’s judgment will be approached by all parties with a spirit of open-minded cooperation.” 521 F. Supp. at 1157. To the great dismay of the Tribe and the United States, however, state officials instead deliberately have chosen to disregard the binding effect of the Tenth Circuit decision in order to attempt to relitigate the boundary dispute in a friendlier forum in the absence of its real adversaries. See State v. Perank, supra, No. 860243, slip op. at 42 (Utah, July 17, 1992) (Zimmerman, J., dissenting). The Utah Supreme Court in turn has ignored the traditional and revered principles of comity, not to mention the well-established sister doctrines of res judicata and collateral estoppel, to disregard the final decision and reject the federal law declared in Ute Indian Tribe. In so doing, the State has created jurisdictional chaos on the Uintah and Ouray Indian Reservation. (emphasis added).

United States’ Memorandum as Amicus Curiae in Support of Ute Indian Tribe’s

Motion for Injunctive Relief, Ute Indian Tribe v. Utah, case no. 2:75cv-0408. Dkt.

10, pp. 3-4.

C. THE STATE OF UTAH’S THIRD RELITIGATION OF THE TRIBE’S RESERVATION BOUNDARIES

Following Hagen, the parties returned to the federal courts to litigate for

another six years the effect of the Hagen ruling. Recognizing it was bound by the


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final mandate in Ute III, the district court requested direction from the Tenth Circuit.

Ute Indian Tribe v. Utah, 935 F. Supp. 1473 (D. Utah 1996) (Ute IV). In the

parties’ second trip to the Tenth Circuit, the State of Utah argued that the Tenth

Circuit should withdraw the Ute III mandate and substitute the vacated decision in

Ute II as the applicable law of the case. In turn, the Tribe argued that the Tenth

Circuit’s mandate in Ute III was final and therefore controlling. Ute V, 114 F.3d at

1520. The Tenth Circuit rejected both positions. The Court ruled instead that it

could not withdraw its prior mandate; the Court said it would modify its mandate but

only to the extent necessary to conform it to the narrow decision in Hagen. Ute V,

114 F.3d at 1527. The Court held: “To the extent that Ute Indian Tribe III decided

matters not addressed in Hagen, finality requires those decisions to remain

undisturbed.” Id.

The Supreme Court denied certiorari. Duchesne County v. Ute Tribe, 522

U.S. 1107 (1998). Accordingly, the Ute III mandate, as modified by Ute V, became

final in 1998.

D. THE STATE’S ATTEMPTED FOURTH RELITIGATION OF THE UINTAH AND OURAY RESERVATION BOUNDARIES

Regrettably, the State of Utah is once again wreaking jurisdictional chaos on

the Uintah and Ouray Indian Reservation. In 2013, the State of Utah returned to the

same playbook that had worked so well for the State in vitiating this Court’s Ute III

ruling through the Hagen case: the State is once again prosecuting Ute tribal


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members in Utah state courts for Indian Country offenses and seeking to relitigate

the Tribe’s Reservation boundaries in those cases against individual tribal members.

When the tribal members predictably challenge the jurisdiction of Utah state courts

on the basis of Ute III and Ute V, the State of Utah has opposed the tribal members’

motions to dismiss for lack of jurisdiction; the State has done so by arguing to its

Utah state courts that the Tenth Circuit’s rulings in Ute III and Ute V were “wrongly

decided,” and that the Utah state courts are not bound by the holdings in Ute III and

Ute V.1

Once the Tribe learned of the State’s actions, the Tribe acted immediately to

defend and enforce the rulings in Ute III and Ute V.

Among its actions, the Tribe, on December 3, 2013, filed its complaint to

enjoin the State of Utah’s prosecution of Ms. Jenkins. Ute Indian Tribe v. State of

Utah, D. Utah case no. 2:13-cv-01070. 2 J.A. Vol. I, 1 (Court Docket); 14

(Complaint).

1 See the Tribe’s Docketing Statement in a related appeal, Ute Indian Tribe v. Duchesne County, Tenth Circuit Court of Appeals, appeal no. 14-4028. 2 Earlier the Tribe had earlier filed both (i) a motion for supplemental proceedings in the original Ute Indian Tribe v. Utah, see Dkt. 153, case no. 2:75-cv-408, and (ii) alternatively filing a complaint in a new action, Ute Indian Tribe v. Utah, case no. 2:13-cv-276. The district court in the original case sua sponte both opened the 1975 suit and consolidated it with case 12-276. At the time the Tribe moved for supplemental proceedings in case 75-408 and filed case 13-276, the Tribe was not aware of any prosecutions of tribal members for offenses on the Tribe’s Reservation land in Wasatch County. See, e.g., case 75-408 Dkt. 176 (identifying and describing relevant state prosecutions of Indians known to the Tribe at the time).


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E. FACTS RELATED TO UTAH’S PROSECUTION OF UTE TRIBAL MEMBER

LESA ANN JENKINS FOR ON-RESERVATION MISDEMEANOR OFFENSES

Ms. Jenkins is an enrolled member of the Ute Indian Tribe of the Uintah and

Ouray Reservation. J.A. Vol. I, 38, ¶1. On July 27, 2013, Ms. Jenkins was driving

on a roadway on her Tribe’s Reservation, within land that is also part of the National

Forest Lands, when she was stopped by a Utah State Highway trooper. J.A. Vol. I,

pp. 45 and 38 at ¶3.

The State Highway trooper issued a citation to Ms. Jenkins in the name of the

State of Utah for alleged violations of five Utah state statutes, and instructed Ms.

Jenkins to appear in the Wasatch County Justice Court. The citation further

threatened that if Ms. Jenkins did not appear, she would be committing further

criminal violations of Utah state laws. Id.

Wasatch County is a subdivision of the State of Utah. See United States

Const. Amend. 11 (powers not held by the United States are held by the states or the

people); Utah Const. Art. XI, § 1 (“The counties of the State of Utah are recognized

as legal subdivisions of this State”). The State of Utah, through the Wasatch

County attorney, is prosecuting Ms. Jenkins for the alleged on-Reservation offenses.

J.A. Vol. I, 53 ¶3; 57. In doing so, the county attorney was acting on behalf of the

State of Utah. Utah Const. Art. XI §1; Utah Code §17-18a-401; see generally Utah

Code Title 17.


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On October 29, 2013, the Tribe, through its General Legal Counsel, sent the

State of Utah and the Wasatch County Prosecutor a letter asking the State to dismiss

the charges against Ms. Jenkins for lack of jurisdiction. J.A. Vol. I, 57-58. The

letter noted that Ms. Jenkins was being prosecuted for offenses that occurred on land

that is within the Tribe’s Reservation under this Court’s dispositive rulings in Ute III

and Ute V. When the State did not respond to the Tribe’s General Counsel, the

Tribe initiated suit against the State and Wasatch County defendants.

F. PROCEDURAL HISTORY OF THE ACTION BELOW Together with its complaint filed in the federal district court, the Tribe filed a

motion for a preliminary injunction, asking the district court to enjoin the State’s

prosecution of Ms. Jenkins pending a resolution on the merits of the Tribe’s

complaint for a permanent injunction barring the State of Utah from prosecuting

Indians for offenses committed on the Tribe’s Reservation.3 The State of Utah, in

whose name the prosecution was being prosecuted, did not file a response in

opposition to the Tribe’s motion for a preliminary injunction. Wasatch County

opposed the Tribe’s motion for interim injunctive relief.4

Shortly after filing its motion for a preliminary injunction, the Tribe, on

January 2, 2014, filed a motion for summary judgment, asking that a permanent

3 See J.A. Vol. I, 24, Tribe’s Motion for Preliminary Injunction. 4 See J.A. Vol. I, 174, Wasatch Defendants’ Motion to Dismiss and Memorandum Opposing Motion for Preliminary Injunction.


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injunction be entered to enjoin the State of Utah and Wasatch County from

exercising criminal jurisdiction over Ms. Jenkins specifically, and other Indians in

general, for conduct occurring inside the Tribe’s Reservation boundaries.5 That

motion and other action in the district court have now been stayed pending a

resolution of this appeal.6

On March 17, 2014, the district court conducted a hearing on (1) the Tribe’s

motion for a preliminary injunction, and (2) the Wasatch County defendants’ motion

to dismiss the Tribe’s complaint. At the time of the March 17th hearing in federal

court, the next scheduled state court hearing in the State’s criminal prosecution of

Ms. Jenkins for the on-Reservation offense was only eleven days away. At the

conclusion of the March 17th hearing, the district court, Judge Benson presiding,

entered two facially incongruent rulings. First, the court correctly rejected Wasatch

County’s argument that the Tribe’s complaint should be dismissed under the

Anti-Injunction Act, 28 U.S.C. §2283, or the Younger abstention doctrine.7 In

5 See J.A. Vol. I, 70, Tribe’s Motion for Summary Judgment. 6 At a hearing on May 6, 2014, recorded as part of a transcript on a hearing in the related case, Ute Indian Tribe v. Utah, case 75-cv-408, Judge Jenkins (to whom the case was transferred in the same order which denied the Tribe’s motion for preliminary injunction) informed the parties that he was sua sponte staying case 13-1070, saying, “I don’t intend to deal with that case newly arrived by way of transfer until such time as the Court of Appeals speaks in that particular case.” Case No. 75-CV-408, T. at 88 (May 6, 2014). Judge Jenkins also noted that he had not yet determined whether the new case would be consolidated with the 1975 case. Id. Through a minute entry, the Court stated that a written order from the May 6 status conference will be issued, which presumably will formally stay the case. Case No. 13-1070, Dkt. 79. 7 J.A. Vol. I, pp. 174, 178, see Younger v. Harris, 401 U.S. 37 (1971).


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doing so, the court reasoned that the issues raised under the Tribe’s complaint were

inherently issues of federal law that should be decided by a federal court. 8

However, the court then inexplicably denied the Tribe’s motion for a preliminary

injunction. The result of the incongruent ruling means that the “inherently federal

issues” acknowledged by the district court would be left to be decided in the Tribe’s

absence by a lay (non-lawyer) state justice court judge in State of Utah v. Lesa Ann

Jenkins. The lay judge assigned to Ms. Jenkins’ case is the Honorable Lane

McCotter. Judge McCotter is a retired army officer and the former director of the

Utah Department of Corrections. 9 Judge McCotter appears to have military,

criminology, and penology credentials; however, there is no indication that Judge

McCotter has the legal knowledge, training, or expertise to rule on the inherently

federal issue of Indian country jurisdiction, nor the res judicata and stare decisis

effect of the Tenth Circuit’s prior dispositive rulings Ute III and Ute V.

The sole reason given by the federal district court for denying the Tribe’s

motion for a preliminary injunction was that the Tribe failed to demonstrate

8 In granting the Tribe’s motion for stay pending appeal, this Court has already implicitly agreed with Judge Benson that the Anti-Injunction Act does not apply to the Tribe’s motions to enjoin the State’s attempt to circumvent this Court’s decisions in Ute III and Ute V through state court prosecutions of individual Indians. In its opposition to the Tribe’s motion for stay from this Court, Wasatch County raised the same argument about the Anti-injunction Act which Judge Benson rejected. Wasatch County has not appealed from Judge Benson’s denial of the County’s motion to dismiss. 9 Tribe’s Appendix to Emergency Petition for Preliminary Injunction, 185-86, (10th Cir. case no. 14-4034, March 21, 2014)( Exhibit N, Utah Courts’ Website Biography for the Honorable Judge McCotter).


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irreparable harm. After the district court denied the Tribe’s motion for a

preliminary injunction, the Tribe once again asked the State defendants to

voluntarily stay the State’s prosecution of Ms. Jenkins; however, the State

defendants once again did not respond to the Tribe’s request.10

On March 19, 2014, the Tribe filed the present appeal, and on March 21,

2014, the Tribe filed an Emergency Petition for a Preliminary Injunction and/or a

Writ of Mandamus. The Petition contained the same substantive arguments that the

Tribe had made in its motion for a preliminary injunction in the district court. Of

most relevance, the Tribe discussed why, under the undisputed facts submitted to

both the district court and the Tenth Circuit, the Tribe had established irreparable

harm as a matter of law. This Court granted the Tribe’s emergency motion for a

stay. See Order (March 27, 2014) (Doc. 10161118). In granting the Tribe’s

motion, this Court effectively decided the very issue that is before the Court on the

merits, holding, at least implicitly, that the Tribe had established irreparable harm as

a matter of law.

STATEMENT OF STANDARD OF REVIEW

This Court reviews a district court’s denial of a preliminary injunction to

determine whether the district court based its rulings on an erroneous conclusion of

10 Tribe’s Appendix to Emergency Petition for Preliminary Injunction, 185-86, (10th Cir. case no. 14-4034, March 21, 2014)(Exhibit O, Tribe’s request for a voluntary stay of Ms. Jenkins’ prosecution).


15

law or relied upon clearly erroneous factual findings. Kiowa Indian Tribe of

Oklahoma v. Hoover, 150 F.3d 1163 (10th Cir. 1998) (the district court denied the

Kiowa Tribe’s motion for preliminary injunction based on the district court’s

holding that the Tribe had failed to establish irreparable harm. This Court reversed,

holding the Tribe had established irreparable harm as a matter of law).

SUMMARY OF THE ARGUMENT

This case presents a simple question: are the federal courts going to protect

and enforce the dispositive judgments, mandates, and holdings that were previously

entered by the federal courts after many decades of litigation between the Ute Tribe

and the State of Utah? Or are the federal courts going to let the State of Utah

succeed in its most recent attempt to relitigate in its own state courts the exact same

issues that the State lost in the earlier, lengthy, and costly federal court litigation?

In its decision staying the State court prosecution of Ms. Jenkins pending this

appeal, this Court has already, and correctly, resolved the same substantive issue that

is presented on appeal. The legal rule that this Court applies to determine whether

to stay a case pending appeal is identical to the legal rule the Court applies in

determining whether to grant an injunction pending appeal: did the district court

abuse its discretion by denying the Tribe’s motion for a preliminary injunction. See

Tribe’s Emergency Petition for a Preliminary Injunction and/or a writ of Mandamus

at 9 (Doc. 01019221653). As the Tribe demonstrated to this Court in its emergency


16

motion to stay the prosecution of Ms. Jenkins pending appeal, all four factors that

the Court applies in determining whether to issue a stay pending appeal weigh

strongly in favor of the Tribe’s request for a preliminary injunction. Therefore, the

district court abused its discretion in denying the Tribe’s motion for a preliminary

injunction. Id.

In particular, the district court denied the Tribe’s motion for interim injunctive

relief based on an erroneous holding that the Tribe had failed to establish irreparable

injury. Multiple cases from this Court are directly to the contrary: a State’s

violation of an Indian tribe’s sovereign rights constitutes irreparable injury.

In its earlier and unsuccessful responses to the Tribe’s motion for an

emergency stay in this Court, Wasatch County advanced numerous immaterial

arguments, and presumably the County will do so again in its brief on the merits.

The Tribe will respond to those arguments primarily in the Tribe’s reply brief;

however, the Tribe notes preemptively that the issue before the district court and the

issue before this Court is whether the State’s prosecution of tribal members for

alleged on-Reservation criminal offenses must be enjoined. In its opposition

memoranda in both this Court and in the district court, Wasatch County discusses at

length the County’s legal assertion that the County has the right to patrol on State

Road 35 within the Tribe’s Reservation; the County also discusses its assertion that

State and County law enforcement officers had the right to conduct a traffic stop of


17

Ms. Jenkins on the Reservation. However, those legal issues were not raised in the

Tribe’s motion in the district court, nor were those legal issues raised in the Tribe’s

emergency motion for a stay, which this Court granted. The issue raised under the

Tribe’s motion is substantially narrower: whether the State of Utah should be

enjoined from prosecuting Ms. Jenkins, an enrolled Ute Indian, in a State court for

an alleged offense that undisputedly occurred on land that is within the Tribe’s

Reservation. It is clear why the State appellees hope to shift the focus to other

issues: on the narrow issue presented, the State defendants’ only argument is their

disrespectful assertion that even though the State was a party to the long, complex,

and expensive litigation that culminated in this Court’s rulings in Ute III and Ute V,

the State does not wish to abide by those rulings. The State defendants want to go

into their own state courts and relitigate in a more favorable forum those portions of

the Ute III and Ute V rulings that did not go in the State’s favor.

In Ute III, and then again in Ute V, this Court clearly and unequivocally held

that the National Forest lands remain a part of the Tribe’s Reservation, and that the

Tribe and the United States have jurisdiction over those lands. Ute V, 114 F.3d at

1530.

Also in Ute V this Court affirmed the district court’s issuance of a preliminary

injunction to enjoin the State’s prosecution of Indians for offenses committed within

the Tribe’s Reservation. That exact same injunction should have been issued in the


18

case at bar, and the district court erred by refusing to enjoin the State of Utah’s

most recent disrespectful attempt to relitigate in its own state courts the issues that

the State lost in Ute III and Ute V.

DISCUSSION OF LAW

I. THE DISTRICT COURT ERRED BECAUSE THE TRIBE WILL SUFFER IRREPARABLE HARM IF THE CURRENT INJUNCTION

IS NOT MAINTAINED UPON REMAND

The district court abused its discretion by failing to taking into account

necessary relevant factors and by failing to apply the legal standards that govern the

Tribe’s request for injunctive relief. Under long-established Supreme Court and

Tenth Circuit precedent, Indian tribes are entitled to injunctive relief against a state’s

threatened or actual assertion of state criminal jurisdiction over tribal members

within Indian country. See, e.g., California v. Cabazon Band of Mission Indians,

480 U.S. 202, 203 (1987) (enjoining application of state criminal laws to tribal bingo

enterprises in Indian Country); United Keetoowah Bank of Cherokee Indians v.

Oklahoma, 927 F.2d 1170, 1182 (10th Cir. 1991) (enjoining the District Attorney of

Tulsa County, Okla. from exercising criminal jurisdiction over Indian gaming in

Indian Country); Seneca-Cayuga Tribe of Oklahoma v. Oklahoma, 874 F.2d 709,

716 (10th Cir. 1989) (affirming preliminary injunction to enjoin the State of

Oklahoma from exercising state criminal jurisdiction over tribal gaming operations

in Indian Country).


19

In the present matter, there can be no good faith dispute that the alleged

criminal offense occurred in Indian County. The term “Indian country” is a legal

term of art that has developed over 200 years to define the boundaries between

tribal, federal, and state jurisdiction. The term “Indian Country” refers to territory

that has been “set aside for the operation of special rules allocating governmental

power among Indian tribes, the federal government, and the states.” HANDBOOK

OF FEDERAL INDIAN LAW (Neil Jessup Newton ed., 2012), § 3.01, p. 131. In

1948 Congress incorporated earlier Supreme Court precedents into a comprehensive

definition of Indian Country.

[T]he term “Indian country, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the boarders (sic) of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian title to which has not been extinguished, including rights of way running through the same.

18 U.S.C. § 1151 (emphasis added).

Although the above definition is contained in the federal criminal law title, it

is now generally recognized as the standard definition of “Indian country” for both

criminal and civil law purposes. See, e.g. Decoteau v. District County Court, 420

U.S. 425, 427 n.2 (1975); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S.

463, 478-79 (1976); 25 U.S.C. § 1903(10); 25 U.S.C. § 1738B(b).


20

The words “all land” and “notwithstanding the issuance of any patent” in 18

U.S.C. § 1151 are terms that were intended by Congress to avoid checkerboard

jurisdiction. See Seymour v. Superintendent, 368 U.S. 351, 358 (1962); accord

Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 477-479 (1976). See

generally HANDBOOK OF FEDERAL INDIAN LAW, § 3.04[2][c] , p. 192.

Under federal law a state can assume criminal jurisdiction over Indians in

Indian Country only “with the consent” of the Indian tribe(s) affected by the

assumption. 25 U.S.C. § 1321(a)(1).11 The Indian tribes in Utah have never

consented to state jurisdiction over their reservations. United States v. Felter, 752

F.2d 1505, 1508 n.7 (10th Cir. 1985). In the absence of tribal consent, "state

jurisdiction over crimes committed in Indian Country is limited to criminal acts

committed 'by non-Indians against non-Indians . . . and victimless crimes by

non-Indians.’” State v. Valdez, 65 P.3d 1191 (Utah App. 2003) (alteration in

original), quoting Solem v. Bartlett, 465 U.S. 463, 465 n.2 (1984).

Indeed, the Tenth Circuit has “repeatedly stated” that enforcing state criminal

jurisdiction on Indian land is an “invasion of tribal sovereignty” constituting

irreparable injury. Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1255-56 (10th

11 25 U.S.C. § 1321(a)(1) reads in pertinent part: “The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption. . . .”


21

Cir. 2006). State encroachments on tribal sovereignty constitute an irreparable

injury because the harm to tribal self-government is “not easily subject to valuation,”

and independently because “monetary relief might not be available because of the

state’s sovereign immunity.” Prairie Band of Potawatomi Indians v. Pierce, 253

F.3d 1234, 1250 (10th Cir. 2001; see also Choctaw Nation of Oklahoma v.

Oklahoma, 724 F. Supp. 2d 1182, 1187 (W.D. Okla. 2010) (remedies at law are

inadequate to remedy illegal assertions of state jurisdiction in Indian Country);

Winnebago Tribe of Nebraska v. Stovall, 205 F. Supp. 2d 1217, 1222 (D. Kan.

2002)(monetary damages are not sufficient “to undo the damage” caused by illegal

seizures of property and encroachments on tribal sovereignty).

The threat of repeated state prosecutions creates the “prospect of significant

interference with [tribal] self-government.” Prairie Band of Potawatomi Indians v.

Pierce, 253 F.3d at 1250 (citing Seneca-Cayuga Tribe of Oklahoma. v. Oklahoma,

874 F.2d at 716).

Here, the district court failed to consider, apply, or distinguish, any of the

foregoing controlling precedent. This Court is required to correct that legal error by

vacating the district court’s order and remanding the case for entry of a preliminary

injunction.

In support of its motion for a preliminary injunction, the Tribe presented

evidence that the situs of Ms. Jenkins’ alleged traffic misdemeanors was within the


22

national forest lands of the Tribe’s Uintah Valley Reservation. J.A., Vol. I, 46,

Exhibit C and attached exhibits, including a land status verification from U.S.

Department of Interior, Bureau of Indian Affairs, stating that the location of the

alleged offenses is within the Ute Tribe’s Indian country.

Neither the State of Utah nor Wasatch County controverted the Tribe’s

documentary evidence.12

In Ute III this Court ruled that the evidence was “clear” that Congress “did not

intend to extinguish the forest lands of the Uintah Reservation.” 773 F.2d at 1090.

Thus the Court expressly and unequivocally ruled that the forest lands remain a part

of the Uintah Valley Reservation. This Court then reaffirmed its Ute III ruling

eleven years later in Ute V, when the Court reiterated that the national forest lands

remain within the boundary of the Uintah Valley Reservation. 114 F.3d at 1528-29.

In their answers to the Tribe’s complaint in this case, the State of Utah and Wasatch

County expressly reject the binding effect of the Ute III and Ute V rulings with

respect to the national forest lands.

Paragraph 26 of the Tribe’s Complaint alleges that:

Ms. Jenkins was cited by a Utah State Highway Trooper for alleged traffic offenses that occurred on State Road 35, Mile Post 23, inside the boundary of the Uintah Valley Reservation.13 (emphasis added)

12 The State of Utah did not file a response to the Tribe’s Motion for a Preliminary Injunction, and Wasatch County never filed any controverting evidence. J.A. Vol. I, 174. 13 J.A. Vol. I, pp. 14, 18, ¶ 26.


23

In the State’s answer to paragraph 26, the State admits the citation of traffic

violations alleged in paragraph 26, but denies “the claimed location is on the Uintah

Ouray Reservation.” 14 (emphasis added) Likewise, the Wasatch County

defendants deny that the situs of the alleged offenses is within the boundary of the

Uintah Valley Reservation as the Tenth Circuit determined that boundary in Ute III,

and reaffirmed in Ute V.15

In Ute V this Court remarked on the tactical errors made by the Tribe’s former

attorneys that culminated in the Hagen ruling and a substantial loss of the Tribe’s

reservation territory in the Uintah Valley Reservation:

The same important purposes of finality … apply equally to the final judgment in Hagen. Once Hagen became final, the State of Utah was entitled to rely on the collateral estoppel effect of that judgment just as the Tribe was entitled to rely on its judgment in Ute Indian Tribe III. Had the Tribe brought its present request for injunctive relief prior to the conclusion of the state litigation in Hagen, the principle of finality clearly would have favored the Tribe and might even have required an injunction against the state proceedings. (citation omitted) (emphasis added).

Ute V, 114 F.3d at 1524-25. The Tribe is following precisely the course of action

that the Tenth Circuit identified in the above-quoted language. An essential step in

that course of action is to secure a preliminary injunction against the State’s

continued prosecution of State of Utah v. Lesa Ann Jenkins. That is precisely what

14 J.A. Vol, I, pp. 63, 65, ¶ 26. 15 J. A. Vol. I, pp. 160, 167, (Exhibit F, p. 8 ¶ 26).


24

the Tribe has done, first through its motion to the district court (which resulted in the

erroneous order from which this appeal was taken) and then to this Court (which

enjoined the prosecution). Without the preliminary injunction that the district court

wrongly denied, but which this Court effectively granted, the State of Utah and

Wasatch County would have been free to relitigate the Tribe’s reservation

boundaries in the Tribe’s absence before a lay (non-lawyer) judge who does not have

the legal education, training, or experience to enable the court to properly evaluate

the inherently federal issue of Indian country jurisdiction, or the res judicata and

stare decisis effect of the Tenth Circuit’s prior dispositive rulings Ute III and Ute V.

Under these circumstances the Tribe reasonably fears the loss of another

significant portion of its reservation territory, the National Forest lands that remain a

part of the Uintah Valley Reservation under this Court’s holdings in Ute III and Ute

V. The loss of the National Forest lands from the Tribe’s reservation would be an

irreparable loss.

II. THE TRIBE’S RIGHT TO INTERIM INJUNCTIVE RELIEF IS CLEAR AND INDISPUTABLE

The Tribe’s right to interim injunctive relief is clear and indisputable, and as

noted above, this Court itself has already granted interim injunctive relief pending

the appeal. Whether under the doctrine of stare decisis, res judicata, or collateral

estoppel, both as a matter of law and a matter of equity, the Ute Tribe is entitled to

injunctive relief to prevent the State defendants from relitigating—for the fourth


25

time—the boundaries of the Uintah Valley Reservation. The original litigation and

the first, second and third relitigations of the Tribe’s reservation boundaries spanned

twenty-five years in the state and federal courts, between October 15, 1975, when

the Tribe’s complaint in Ute Tribe v. Utah was filed, until a stipulated dismissal was

entered in the case on March 28, 2000. The Tribe is entitled to injunctive relief to

prevent the State defendants from relitigating and relitigating and relitigating and

relitigating the same legal issues that were fully and conclusively adjudicated for the

third time more than sixteen years ago under the Tenth Circuit’s decision in Ute V.

See Brooks v. Barbour Energy Corp., 804 F.2d 1144, 1146 (10th Cir. 1986)

(permanently enjoining a state court relitigation of matters litigated in earlier federal

court proceeding); see also G.C. and K.B. Investments, Inc. v. Wilson, 326 F.3d

1096, 1106-07 (9th Cir. 2002) (permanently enjoining litigants from attempting to

circumvent a federal court ruling through the state courts in Hawaii); Kidder,

Peabody & Co., Inc. v. Maxus Energy Corp., 925 F.2d 556, 565 (2d Cir. 1991)

(permanently enjoining a litigant from relitigating federal securities claims, “no

matter how denominated”); Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960

F.2d 1286, 1297 (5th Cir. 1992) (enjoining a state court relitigation of issues

adjudicated in earlier federal court action).

See also Browning Debenture Holders’ Committee v. DASA Corp., 454 F.

Supp. 88, 97 (S.D. New York 1978) (permanently enjoining a litigant from “starting


26

this six-year-old action all over again in a new forum”), aff’d 605 F.2d 35 (2nd Cir.

1978).

A case on all fours with the Tribe’s case is Jackson v. Carter Oil Co., 179 F.2d

524, 526 (10th Cir. 1950). In that case the Tenth Circuit affirmed a lower court

order that perpetually enjoined a litigant from relitigating a matter that—like the

case here—had been “in the courts” for decades and was before the Tenth Circuit for

“the third time.” Id. at 525-526 (emphasis added). Like the recalcitrant litigant in

Jackson v. Carter Oil Co., the State of Utah should be perpetually enjoined from

relitigating and relitigating and relitigating and relitigating the Tribe’s reservation

boundaries. This case, like Browning Debenture, “falls squarely within” the

relitigation exception” to the Anti-Injunction Act, 28 U.S.C. § 2283:

[W]hen a party who has prevailed in federal court has been subjected to multiple lawsuits on the same issues in state fora, injunctive relief will be granted. . . [citation omitted] . . . However, a multiplicity of state lawsuits is not a prerequisite to this equitable relief; where the federal litigation has been unusually burdensome or protracted and the losing party simply refuses to be bound by the outcome, even a single state-court action attempting to relitigate the same issue will be enjoined. (emphasis added)

Browning Debenture, 454 F. Supp. at 101. Both of these factual predicates exist

here: the previous litigation—both the original litigation and the first, second and

third relitigations—were unusually protracted and burdensome; in addition, the

State is attempting a fourth relitigation, this time through a multiplicity of state


crimina

entitlem

Energy,

T

the Trib

(2) irre

threaten

Wasatch

public i

822 (10

Tribe is

A

court un

evidenc

that the

lands o

evidenc

the Uint

16 See thCircuit C

al suits aga

ment to inj

, 804 F.2d

To obtain a

be is requir

eparable ha

ned injury t

h County;

interest. E

0th Cir. 20

s entitled to

As discusse

nder this

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and (4) tha

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07. The U

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ed supra at

Court’s di

neither th

Ms. Jenkin

be’s Uintah

ear” that Co

vation.” T

Docketing Stpeals, Appeal

idual triba

lief is sim

Jackson v. C

ary injunct

w: (1) a su

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e outweigh

at the injun

ie Band Po

Ute Tribe

for issuance

KELIHOOD

21-22, the

ispositive

e State no

ns’ alleged

h Valley R

ongress “d

The Court th

tatement in l No. 14-402

27

l members

mply beyon

Carter Oil,

tion in eith

ubstantial l

unless an

hs any pote

nction, if i

otawatomi

satisfied e

e of a preli

OF SUCCE

e Tribe will

rulings in

r Wasatch

d traffic mi

Reservation

did not inte

hus ruled t

Ute Indian 28.

s.16 Under

nd cavil.

, 179 F.2d

her the Dis

ikelihood

injunction

ential harm

issued, wil

i Nation v.

each of tho

iminary inj

ESS ON THE

l prevail on

Ute III a

h County c

isdemeano

n. In Ute

end to extin

that the for

Tribe v. Du

r these fac

E.g., Broo

at 526.

strict Court

of success

n is issued

m to the Sta

l not adver

Wagnon,

ose require

junction.

E MERITS

n the merit

and Ute V.

controverte

ors was wi

e III this C

nguish the

rest lands r

uchesne Cou

cts, the Tri

oks v. Barb

t or this C

s on the me

d; (3) that

ate of Utah

rsely affec

476 F.3d

ements and

ts in the dis

V. The Tri

ed—establi

ithin the fo

Court held

forest land

emain a pa

unty, et al., T

ibe’s

bour

ourt,

erits;

t the

h and

ct the

818,

d the

strict

ibe’s

ishes

orest

d the

ds of

art of

Tenth


the Uint

Tenth C

the bou

this Cou

the Nati

Tribe w

A

district

of law.”

Cir. 199

to enjoin

assets.

irrepara

made a

added)

immuni

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A

Indian t

tah Valley

Circuit reaff

undary of t

urt conclus

ional Fore

will prevail

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” Kiowa I

98) (empha

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able harm.

sufficient

Id. at 117

ity would

s of litigati

As discusse

tribes are i

Reservatio

ffirmed its U

the Uintah

sively adju

st lands w

on the mer

econd requi

Tribe mad

Indian Trib

asis added)

ings in an O

ntly, in Kio

Instead, t

t showing

71. In so

be “irrevo

on.” Id. a

ed supra at

irreparably

on. 773 F

Ute III ruli

h Valley R

udicated in

where Ms. J

rits.

IRRB.

irement, in

de a suffici

be of Okla

). In Kiow

Oklahoma

owa this C

this Court

or irrepara

ruling, the

ocably lost

at 1171.

24, the har

y harmed w

28

F.2d at 1090

ing that the

Reservation

n Ute III an

Jenkins’ al

REPARABL

n view of th

ent showin

ahoma v. H

wa this Cou

state court

Court reject

said it was

able harm

e Court ex

t” once the

rm to the U

when they

0. Eleven

e national f

n. 114 F.3

nd Ute V th

lleged mis

LE HARM

he undispu

ng of irrep

Hoover, 15

urt reversed

t that threat

ted the dist

s “convinc

“as a ma

xplained th

e Tribe wa

Ute Tribe i

y suffer an

n years late

forest lands

3d at 1528

he jurisdict

sdemeanors

uted facts su

arable harm

50 F.3d 116

d a district

tened the s

trict court’

ced” the Ki

atter of law

hat the Tri

as forced t

s just as irr

unlawful

er, in Ute V

s remain w

8-29. Bec

tional statu

s occurred

ubmitted to

m “as a ma

63, 1171 (

court’s ref

seizure of t

s finding o

iowa Tribe

w.” (emph

be’s sover

to “endure

revocable h

deprivatio

V, the

within

cause

us of

d, the

o the

atter

(10th

fusal

tribal

of no

e had

hasis

reign

e the

here.

on of


29

their jurisdictional authority. Comanche Nation v. United States, 393 F. Supp. 2d

1196, 1205-06, 1210-1211 (W.D. Okla. 2005. Moreover, neither the Tribe nor its

tribal members should be “forced to expend time and effort on litigation in a court

that does not have jurisdiction over them, and risk inconsistent binding judgments

from state and federal courts.” Seneca-Cayuga at 716.

In Coeur D’Alene Tribe v. Hammond, 244 F. Supp.2d 1264 (D. Idaho), the

district court emphasized a point that applies with equal force to the State

defendants’ prosecution of Ute tribal members and the defendants’ illegal assertion

of state criminal jurisdiction inside the Ute Tribe’s reservation:

Generally, courts grant equitable relief in the event of irreparable injury and the inadequacy of legal remedies. . . . [citation omitted] . . . When a plaintiff’s constitutional rights are violated, there is a presumption of irreparable harm. An injunction is therefore the appropriate remedy for a constitutional violation. (emphasis added)

Id. at 1267. Each time the State of Utah extends its criminal jurisdiction inside the

Tribe’s reservation boundaries, Ute tribal members suffer unconstitutional

deprivations of their liberty and/or property. E.g., Ross v. Neff, 905 F.2d 1349,

1354 (10th Cir. 1990) (a warrantless arrest executed outside the arresting officer’s

jurisdiction is analogous to a warrantless arrest without probable cause). And the

Ute Tribe suffers an illegal encroachment on its territorial jurisdiction. E.g., Bishop

Paiute Tribe v. County of Inyo, 275 F.3d 893 (9th Cir. 2002) (extra-territorial search

of tribal offices by California district attorney and county sheriff was


unconst

Indians

F.3d at

persons

874 F.2

Utah E

authorit

(10th C

(state de

Reserva

P.2d 62

A

member

if this C

injuncti

combin

the Trib

point.”

Prairie

titutional),

, 538 U.S.

1250 (Indi

on their R

d at 710, 7

Enabling A

ty); Indian

Cir. 1987) (

eputy in “fr

ation for an

9 (N.M. A

As a matte

rs outweig

Court does n

ion. “The

ed with the

be’s reserva

Seneca-C

Band of Po

rev’d on o

701 (2003

ian tribes h

Reservatio

16 (the dis

Act of 1

Country, U

(same); Sou

fresh pursui

n off-reser

App. 1995)

er of law

hs any con

not reverse

e federal n

e State’s la

ation, “red

Cayuga Tri

otawatomi

other groun

3); Prairie

have the in

ons); Senec

sclaimer in

894—disc

U.S.A., Inc

uth Dakota

it” could n

vation spe

(disallowi

BAC.

the threat

nceivable h

e the distric

nature of

ck of crimi

duce the Sta

ibe of Okla

i Indians v.

30

nds sub nom

e Band of P

nherent righ

ca-Cayuga

the Oklah

laims bot

. v. Okla. T

a v. Cumm

not pursue a

eding viol

ng arrest a

ALANCE OF

ened injur

harm to the

ct court an

the law a

inal jurisdi

ate’s intere

ahoma v. O

Pierce, 25

m., Inyo Co

Potawatom

ht to contro

a Tribe of

oma Enabl

th proprie

Tax Comm

mings, 679

a tribal mem

lation); Far

after pursui

F HARMS

ry to the

e State of U

nd remand f

and of the

iction over

est in this l

Oklahoma,

53 F.3d at 1

ounty v. Pa

mi Indians

ol access a

Oklahoma

ling Act—

etary and

’n., 829 F.2

N.W.2d 48

mber onto

rmington v

it).

Ute Tribe

Utah and W

for entry o

e issues to

r Native Am

litigation to

874 F.2d a

1251-1252

aiute-Shosh

v. Pierce,

and presenc

a v. Oklaho

—identical to

governme

2d 967, 97

84 (S.D. 2

the Pine R

v. Benally,

and its t

Wasatch Co

f a prelimi

o be decid

mericans in

o the vanis

at 716; see

2 (the state

hone

253

ce of

oma,

o the

ental

6-81

004)

Ridge

, 892

tribal

ounty

inary

ded,”

nside

shing

also

“has


not been

with res

A

interest.

the Stat

of the U

Winneb

signific

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reliminary

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termination

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under the

a strong p

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31

registratio

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WILL NOT

injunction

: there is a

mply with fe

ry and the

all, 205 F.

the viabi

n”). See a

ming injunc

Choctaw N

enjoining

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in requirin

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public inte

by and sho

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on and titlin

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n will not a

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e Tribe’s r

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ction again

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nd Fourtee

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ow due res

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ublic intere

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at 1223 (“th

tribal sel

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Oklahoma

rt jurisdicti

udgment).

e of Utah to

enth Amen

pecting the

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ffect the pu

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f the

Utah

ns of


32

CONCLUSION

In the summer of 1963, Alabama Governor George Wallace attempted to

block the racial integration of the University of Alabama by standing in a college

doorway and repeating his infamous pledge of “segregation now, segregation

tomorrow, segregation forever.” These words had become the rallying cry for the

State of Alabama in its defiant refusal to acknowledge and comply with the U.S.

Supreme Court’s ruling in Brown v. Board of Education nine years earlier.17 In this

case, it has been more than nine years—it has been nearly fourteen years—since the

Tenth Circuit rendered its ruling in Ute V and the Supreme Court refused to grant

certiorari. Yet once again the parties are back in federal court. And as before, we

are back in court because of the refusal of the State of Utah and its political

subdivisions to acknowledge and abide by the Tenth Circuit’s rulings in Ute III and

Ute V. The State defendants’ rallying cry—to borrow from the

historically-disgraced George Wallace—is unabashedly: “Disestablish the Ute

Tribe’s reservation! Disestablish it now, disestablish it tomorrow, disestablish it

forever.” At this historical juncture the State of Utah and its political subdivisions

are openly and defiantly challenging the legitimacy, efficacy, and supremacy of

federal law inside the Uintah and Ouray Indian Reservation. And they are doing so

just as surely as the State of Alabama openly and defiantly challenged the

17 Brown v. Board of Education, 347 U.S. 483 (1954).


33

legitimacy, efficacy, and supremacy of federal law in the State of Alabama in the

summer of 1963.

This Court must put an end to the State’s attempt to relitigate until the State

gets the result it wants. The first step is to remand this matter with instructions to

enter the preliminary injunction requested by the Tribe.

Dated this 2nd day of June, 2014. Respectfully submitted, FREDERICKS PEEBLES & MORGAN LLP By: Jeffrey S. Rasmussen By: /s/ Jeffrey S. Rasmussen (Digital) Jeffrey S. Rasmussen Frances C. Bassett Sandra L. Denton Todd K. Gravelle 1900 Plaza Drive Louisville, Colorado 80027 Telephone: 303-673-9600 Facsimile: 303-673-9155/9839 Email Addresses: [email protected] [email protected] [email protected] [email protected] Attorneys for Petitioner


34

CERTIFICATE OF COMPLIANCE Section 1. Word count As required by Fed. R. J.A. P. 32(a)(7)(c), I certify that this brief is proportionally spaced and contains 7,467 words. Complete one of the following: X I relied on my word processor to obtain the count and it is Microsoft Office Word 2010. I counted five characters per word, counting all characters including citations and numerals. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry. By: Jeffrey S. Rasmussen Attorney for Petitioner By: /s/ Jeffrey S. Rasmussen (Digital) Attorney for Petitioner


35

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS

I hereby certify that a copy of the foregoing APPELLANT’S BRIEF, as submitted in Digital Form via the court's ECF system, is an exact copy of the written document filed with the Clerk and has been scanned for viruses with Sunbelt Vipre Enterprise version 6.2.5.1, dated 4/22/2014, and, according to the program, is free of viruses. In addition, I certify all required privacy redactions have been made.

By: Debra A. Foulk By: /s/ Debra A. Foulk (Digital) Assistant to Jeffrey S. Rasmussen


36

CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of June, 2014, a copy of the foregoing APPELLANT’S BRIEF was served via the ECF/NDA system which will send notification of such filing to all parties of record as follows:

RANDY S. HUNTER KATHARINE H. KINSMAN BRIDGET K. ROMANO Assistant Attorneys General Utah Attorney General's Office Utah State Capitol Complex 350 North State Street, Suite 230 Salt Lake City, UT 84114-2320 [email protected] [email protected] [email protected] Attorneys for Defendants – Appellees State of Utah, Wasatch County, Gary Herbert, Sean D. Reyes, Scott Sweat, and Tyler J. Berg

JESSE C. TRENTADUE BRITTON R. BUTTERFIELD Suitter Axland, PLLC 8 E. Broadway, Ste. 200 Salt Lake City, UT 84111 [email protected] [email protected] Attorneys for Defendants - Appellees Wasatch County, Scott Sweat, and Tyler J. Berg

By: Debra A. Foulk By: /s/ Debra A. Foulk (Digital) Assistant to Jeffrey S. Rasmussen


case no. 14-4034 in the united states court of …

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