FORT DUCHESNE, Uintah County — The attorney for a Fort Duchesne man cited with trespass by the Ute Indian Tribe says the case is one of "total irony" anyway, so why not stir the pot even more by listing the main defendant in the jurisdictional dispute as "one fishing rod and reel."
It's Michael Humiston's job to make sure his client, Perry Murdock, a member of the Timpanogos tribe, gets what he claims is rightfully his. In this case that just happens to be the vast Uintah Valley Reservation, better known as the Northern Ute Indian Reservation.
Last April Murdock was charged under the Ute Civil Trespass Ordinance for fishing in the Uinta River on the reservation without a permit. Murdock's fishing pole was confiscated by a tribal fish and game officer.
That's when Humiston went to work and filed suit challenging the jurisdiction of the Ute Tribe by bringing an action in federal court against Murdock's own fishing pole. The confiscated fishing pole is listed as a defendant right along with the Ute Indian Tribe and tribal prosecutor Roland Uresk.
"We sued for the purpose of challenging the Ute Tribe civil forfeiture law, which we maintain is in violation of federal law," Humiston detailed.
Court documents note that Murdock "was using defendant Rod and Reel to exercise rights reserved to him as an Indian of the Utah Territory" under an 1861 Executive Order and Congressional Act of 1864.
The Timpanogos tribe consists of about 937 members who maintain they are the descendants of Utah Indians — meaning the Shoshone Indians — and therefore the true owners of the Uintah Valley Reservation. The tribe — which hadn't been heard from until about three years ago — lacks recognition by the federal government but does have standing to bring action in federal court.
According to Humiston, Murdock is being wrongfully prosecuted by the Ute Tribe for fishing in his own water on his own reservation.
"It's total irony that he's being charged with civil trespass on a reservation on which he has the paramount right. And ironically, as an owner of the Harris Ditch Irrigation Company, Murdock was fishing in water he partly owns."
Listing an inanimate object as a defendant may sound odd, but it's perfectly legal. In fact, according to Humiston, U.S. District Court Judge Ted Stewart — who dismissed the case without prejudice last Wednesday on the grounds that Murdock must first exhaust his remedies in Ute Tribal Court before bringing federal action — didn't disagree with the procedure.
Referred to in legalese as "action in rem," the idea of property, rather than a person, being the defendant is usually employed in court matters dealing with cases involving sunken treasure ships, Humiston explained.
"When somebody finds a sunken treasure ship there is usually a dispute over whether the finder or state gets to keep it. Instead of suing the people who might be liable, you sue the property — we are asking the court to determine who has what rights in this property. Here's a chance to stake your claim or forever hold your peace."
If a Ute tribal court judge dismisses the suit for lack of jurisdiction, as Humiston hopes, it would constitute recognition of the Timpanogos tribe as a sovereign entity, he said.
"Members of the Timpanogos tribe are eager to see whether the Ute tribal court will acknowledge that it has no jurisdiction over them. A dismissal in tribal court would constitute just such a recognition."
A dismissal would prevent the case from going back to federal court, and would make it unnecessary for the federal court to determine whether the tribe's civil trespass ordinance is legal, or whether Murdock was within his rights to fish on the reservation without the required permit, Humiston said.
Tod Smith, counsel for the Ute Indian tribe, has argued in court documents that the tribe's civil trespass ordinance is legal and was created to fill a void in the Ute Law and Order Code. Court records also show the tribe believes Murdock to be a descendant of a terminated Ute, who would not have legal right to fish on the reservation without obtaining a fishing permit as all non-tribal members are required to do.
Murdock isn't denying this, but maintains that his rights as a member of the Timpanogos tribe have never been addressed by a federal court.
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