U.S. District Court Judge Bruce Jenkins will rule next month on just what lands were removed from the Ute Indian Reservation by the U.S. Supreme Court last February in Hagen vs. Utah.
The state of Utah and local entities contend the high court justices meant to remove all property with the exception of just over a million acres held in trust for the tribe by the federal government.The Ute Tribe, however, maintains the nation's highest court meant to keep the reservation boundaries intact and remove only lands opened to homesteading by Congress in 1902.
Roosevelt City and lands immediately adjacent are considered "homestead lands." But Myton and Duchesne cities and unincorporated areas of Duchesne and Uintah counties contain checkerboard pieces of land that the tribe contends should be theirs because it was land originally "allotted" or set aside for individual tribal members by the federal government. In almost all cases, the land has long since been sold to non-Indians or mixed-blood Indians.
"The question is: Did the U.S. Supreme Court decision in Hagen reduce the reservation to trust lands only, which is definitely our position, or did it simply take homesteaded lands out of the reservation and leave the reservation including its exterior boundaries intact?" explained Duchesne County Attorney Herb Gillespie.
"Our position is Hagen was a boundary case. It knocked out the reservation boundaries. So there aren't any boundaries to this reservation and the only land which is Indian Country are those lands held in trust for Indians. So essentially what becomes the boundary is trust lands, if you want to say there is a boundary."
Tribal attorney Robert Thompson argues that if the Hagen decision did do anything to the tribe it simply took out homestead lands, essentially like pieces of a puzzle taken out of a major map, which is the reservation.
Gillespie said the state will go back to the original Supreme Court decision to prove their case in U.S. District Court Sept. 12.
"Their decision says some things which seem to be directly on point and these arguments about different "classes" of lands are only newly created (by the tribe). That approach was never brought to the Supreme Court's attention, or to the Utah Supreme Court."
Nearly two years ago, Jenkins placed a restraining order on the state and local city and county agencies from exercising jurisdiction over Ute tribal members off tribal trust lands. His order came in response to a Utah Supreme Court decision that ran contrary to a 1986 10th Circuit Court of Appeals ruling stating that the original boundaries of the Uintah-Ouray Indian Reservation were not diminished by Congress when it opened the land to homesteading.
The appeals court decision had given the tribe criminal and civil jurisdiction over their members anywhere within the original reservation boundaries, which encompassed almost all of Duchesne County, the western portion of Uintah County, and sections of Wasatch and Grand counties. The appellate court decision also gave the tribe the power to tax, enact zoning ordinances and hold other governmental powers over all residents, Indian and non-Indian alike, living within the 4 million-acre reservation.
The Utah Supreme Court rendered a conflicting opinion in July 1992 in a case involving Clinton Perank vs. the state of Utah. The state court justices ruled the state did indeed have the authority to prosecute Perank, a Ute tribal member, on criminal charges because his crime occurred in Myton, which the state court determined was off the reservation on lands the justices held were restored to the public domain by congressional acts in the early 1900s.
Federal law provides for exclusive federal jurisdiction over a defendant who is an American Indian and who commits a criminal offense in Indian Country.
On Feb. 21, the U.S. Supreme Court concurred with the Utah Supreme Court, effectively giving back jurisdiction over millions of acres to the state and local cities and counties. At least, that's what the state and counties assumed until the Ute Tribe recently brought up new claims of land ownership.
Gillespie said that now the ball, which has been bouncing through the legal system for almost 20 years, has been tossed back into Jenkins' court for a hearing.
Pretrial briefs from each side are due in court Friday, and Jenkins has scheduled a daylong hearing for Sept. 12 to listen to the claims and counter claims.
Gillespie said that at that time Jenkins could rule from the bench or take the matter under advisement before issuing his decision.