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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
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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
ii
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II. THE TRIBE’S RIGHT TO INTERIM INJUNCTIVE RELIEF IS CLEAR AND INDISPUTABLE ...... 24
A. Likelihood of Success on the Merits ...... 27
B. Irreparable Harm ...... 28
C. Balance of Harms ...... 30
D. The Public Interest Will Not Be Adversely Affected ...... 31
CONCLUSION ...... 32
CERTIFICATE OF COMPLIANCE ...... 42
CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS ...... 363
CERTIFICATE OF SERVICE ...... 36
iii
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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
iv
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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
v
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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). 9
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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. 11
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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). 12
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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). 13
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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). 14
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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
15
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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
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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
17
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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).
18
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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).
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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. . . .” 20
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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
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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. 22
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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).
23
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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
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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
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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
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criminal suits against individual tribal members.16 Under these facts, the Tribe’s
entitlement to injunctive relief is simply beyond cavil. E.g., Brooks v. Barbour
Energy, 804 F.2d at 1146; Jackson v. Carter Oil, 179 F.2d at 526.
To obtain a preliminary injunction in either the District Court or this Court,
the Tribe is required to show: (1) a substantial likelihood of success on the merits;
(2) irreparable harm to the Tribe unless an injunction is issued; (3) that the
threatened injury to the Tribe outweighs any potential harm to the State of Utah and
Wasatch County; and (4) that the injunction, if issued, will not adversely affect the
public interest. E.g., Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818,
822 (10th Cir. 2007. The Ute Tribe satisfied each of those requirements and the
Tribe is entitled to remand for issuance of a preliminary injunction.
A. LIKELIHOOD OF SUCCESS ON THE MERITS As discussed supra at 21-22, the Tribe will prevail on the merits in the district
court under this Court’s dispositive rulings in Ute III and Ute V. The Tribe’s
evidence—which neither the State nor Wasatch County controverteed—establishes
that the situs of Ms. Jenkins’ alleged traffic miisdemeanors was within the forest
lands of the Tribe’s Uintah Valley Reservation. In Ute III this Court held the
evidence was “clear” that Congress “did not intend to extinguish the forest lands of
the Uintah Reservation.” The Court thus ruled that the forest lands remain a part of
16 See the Tribe’s Docketing Statement in Ute Indian Tribe v. Duchesne County, et al., Tenth Circuit Court of Appeals, Appeal No. 14-4028. 27
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the Uintah Valley Reservation. 773 F.2d at 1090. Eleven years later, in Ute V, the
Tenth Circuit reaffirmed its Ute III ruling that the national forest lands remain within
the boundary of the Uintah Valley Reservation. 114 F.3d at 1528-29. Because
this Court conclusively adjudicated in Ute III and Ute V the jurisdictional status of
the National Forest lands where Ms. Jenkins’ alleged misdemeanors occurred, the
Tribe will prevail on the merits.
B. IRREPARABLE HARM As to the second requirement, in view of the undisputed facts submitted to the
district court, the Tribe made a sufficient showing of irreparable harm “as a matter
of law.” Kiowa Indian Tribe of Oklahoma v. Hoover, 1550 F.3d 1163, 1171 (10th
Cir. 1998) (emphasis added). In Kiowa this Court reversed a district court’s refusal
to enjoin proceedings in an Oklahoma state court that threatened the seizure of tribal
assets. Significantly, in Kiowa this Court rejected the district court’s finding of no
irreparable harm. Instead, this Court said it was “convinced” the Kiowa Tribe had
made a sufficient showing or irreparable harm “as a matter of law.” (emphasis
added) Id. at 1171. In so ruling, the Court explained that the Tribe’s sovereign
immunity would be “irrevocably lost” once the Tribe was forced to “endure the
burdens of litigation.” Id. at 1171.
As discussed supra at 24, the harm to the Ute Tribe is just as irrevocable here.
Indian tribes are irreparably harmed when they suffer an unlawful deprivation of
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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
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unconstitutional), rev’d on other grounds sub nom., Inyo County v. Paiute-Shoshone
Indians, 538 U.S. 701 (2003); Prairie Band of Potawatomi Indians v. Pierce, 253
F.3d at 1250 (Indian tribes have the inherent right to control access and presence of
persons on their Reservations); Seneca-Cayugaa Tribe of Oklahoma v. Oklahoma,
874 F.2d at 710, 716 (the disclaimer in the Oklahoma Enabling Act—identical to the
Utah Enabling Act of 1894—disclaims both proprietary and governmental
authority); Indian Country, U.S.A., Inc. v. Okla. Tax Comm’n., 829 F.2d 967, 976-81
(10th Cir. 1987) (same); South Dakota v. Cummings, 679 N.W.2d 484 (S.D. 2004)
(state deputy in “fresh pursuit” could not pursue a tribal member onto the Pine Ridge
Reservation for an off-reservation speeding viollation); Farmington v. Benally, 892
P.2d 629 (N.M. App. 1995) (disallowing arrest after pursuit).
C. BALANCE OF HARMS As a matter of law the threatened injury to the Ute Tribe and its tribal
members outweighs any conceivable harm to the State of Utah and Wasatch County
if this Court does not reverse the district court and remand for entry of a preliminary
injunction. “The federal nature of the law and of the issues to be decided,”
combined with the State’s lack of criminal jurisdiction over Native Americans inside
the Tribe’s reservation, “reduce the State’s interest in this litigation to the vanishing
point.” Seneca-Cayuga Tribe of Oklahoma v. Oklahoma, 874 F.2d at 716; see also
Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d at 1251-1252 (the state “has
30
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not been prevented from enforcing its registration and titling laws wholesale—only
with respect to the tribe and its members”) (emphasis addeed).
D. THE PUBLIC INTEREST WILL NOT BE ADVERSELY AFFECTED As a matter of law a preliminary injunction will not adversely affect the public
interest. Exactly the opposite is true: there is a strong public interest in requiring
the State of Utah to recognize and comply with federal laws that protect the integrity
of the Ute Tribe’s sovereign territory and the Tribe’s right to self-governance.
Winnebago Tribe of Nebraska v. Stovall, 205 F. Supp. 2d at 1223 (“the public has a
significant interest in assuring the viability of tribal self-government,
self-sufficiency, and self-determination”). See also Indian Country, U.S.A., Inc. v.
Oklahoma, 829 F.2d at 988 (affirming injunction against state regulation and
taxation over tribal bingo enterprise); Choctaw NNation of Oklahoma v. Oklahoma,
724 F. Supp. 2d at 1187 (permanently enjoining state court jurisdiction over Indian
country tort lawsuits on the Tribe’s motion for summary judgment).
There is a strong public interest in requiring the State of Utah to stop violating
Ute tribal members’ rights under the Fourth and Fourteenth Amendments of the
Constitution. There is also a strong public interest in expecting the State of Utah
and its political subdivisions to abide by and show due respect for the decisions of
the federal courts in Ute III and Ute V.
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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). 32
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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
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Appellate Case: 14-4034 Document: 01019258215 Date Filed: 06/02/2014 Page: 40
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
34
Appellate Case: 14-4034 Document: 01019258215 Date Filed: 06/02/2014 Page: 41
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
35
Appellate Case: 14-4034 Document: 01019258215 Date Filed: 06/02/2014 Page: 42
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 JESSE C. TRENTADUE KATHARINE H. KINSMAN BRITTON R. BUTTERFIELD BRIDGET K. ROMANO Suitter Axland, PLLC Assistant Attorneys General 8 E. Broadway, Ste. 200 Utah Attorney General's Office Salt Lake City, UT 84111 Utah State Capitol Complex [email protected] 350 North State Street, Suite 230 [email protected] Salt Lake City, UT 84114-2320 [email protected] Attorneys for Defendants - Appellees [email protected] Wasatch County, Scott Sweat, and [email protected] Tyler J. Berg
Attorneys for Defendants – Appellees State of Utah, Wasatch County, Gary Herbert, Sean D. Reyes, Scott Sweat, and Tyler J. Berg
By: Debra A. Foulk
By: /s/ Debra A. Foulk (Digital) Assistant to Jeffrey S. Rasmussen
36