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United States Court of Appeals
Tenth Circuit
MAY 8 1997
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UTE INDIAN TRIBE OF THE UINTAH
AND OURAY RESERVATION,
Plaintiff - Appellee,
v.
No. 96-4073
STATE OF UTAH; DUCHESNE COUNTY,
a political subdivision of the
State of Utah; ROOSEVELT CITY,
a municipal corporation; DUCHESNE
CITY, a municipal corporation;
UINTAH COUNTY, a political subdivision
of the State of Utah,
Defendants - Appellants,
and
UNITED STATES OF AMERICA,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. No. 75-CV-408-J)
John W. Andrews, Assistant Attorney General (Jan Graham, Attorney General,
Carol Clawson, Solicitor General, Reed Richards, Chief Deputy Attorney General, and Michael M. Quealy, Assistant Attorney General, with him on the brief),
Office of the Attorney General for the State of Utah, Salt Lake City, Utah,
appearing for Defendant-Appellant State of Utah.
JoAnn B. Stringham, Uintah County Attorney, Vernal, Utah, on the briefs for
Defendant-Appellant Uintah County.
Herbert W. Gillespie, Duchesne County Attorney, Roosevelt, Utah, on the briefs
for Defendant-Appellant Duchesne County.
Robert S. Thompson, III, General Counsel, Ute Indian Tribe, Fort Duchesne, Utah
(Sandra Hansen, Deputy General Counsel, Ute Indian Tribe, Fort Duchesne, Utah,
and Tod J. Smith, Whiteing & Smith, Boulder, Colorado, with him on the brief),
appearing for Plaintiff-Appellee.
Robert L. Klarquist, U.S. Attorney (Lois J. Schiffer, Assistant Attorney General,
Edward J. Shawaker, U.S. Attorney, and Curtis G. Berkey, U.S. Attorney, with
him on the brief), Department of Justice, Washington, DC, appearing for amicus
curiae United States of America.
Before TACHA, GODBOLD,(1) and HOLLOWAY, Circuit Judges.
TACHA, Circuit Judge.
This appeal requires us to address once again the status of the Uintah
Valley Indian Reservation. In the district court, the Ute Indian Tribe ("Tribe")
sought to obtain a permanent injunction preventing the State of Utah, the counties
of Duchesne and Uintah, and the cities of Roosevelt and Duchesne ("state and
local defendants") from exercising civil and criminal jurisdiction on certain lands
(1) The Honorable John C. Godbold, Senior Circuit Judge, United States Court of
Appeals for the Eleventh Circuit, sitting by designation.
within the original exterior boundary of the Uintah Valley Reservation in a
manner inconsistent with our en banc opinion in Ute Indian Tribe v. Utah, 773
F.2d 1087 (10th Cir. 1985) (en banc), cert. denied, 479 U.S. 994 (1986). In
opposing the injunction, the state and local defendants rely on Hagen v. Utah, 510
U.S. 399 (1994), in which the Supreme Court held, contrary to our decision in Ute
Indian Tribe, that the lands in question are not part of the Uintah Valley
Reservation. Notwithstanding Hagen, the district court held that it was bound
under the "law of the case" doctrine to follow our mandate in Ute Indian Tribe
and thus, that it was without authority to alter the existing jurisdictional
boundaries as set forth in Ute Indian Tribe. In light of the inconsistency between
Ute Indian Tribe and Hagen, however, the district court requested that we issue
instructions on how to proceed and suggested that we construe the request as an
invitation to recall our mandate in Ute Indian Tribe.
The state and local defendants appeal, arguing that (1) our en banc decision
in Ute Indian Tribe does not preclude their exercise of jurisdiction over former
reservation lands under the doctrines of law of the case, collateral estoppel, or res
judicata and (2) Hagen effectively overruled Ute Indian Tribe, permitting the
defendants to exercise jurisdiction over all the lands originally held to be within
reservation boundaries. Along with their appeal, the state and local defendants
have filed a motion to recall, in its entirety, our mandate issued pursuant to Ute
Indian Tribe. The United States as amicus curiae urges us to recall and modify
the mandate in Ute Indian Tribe only to the extent that it directly conflicts with
Hagen. We exercise jurisdiction pursuant to 28 U.S.C. 1291. Because we
conclude that the boundaries of the Uintah Valley Reservation must be
redetermined in light of Hagen, we modify our holding in Ute Indian Tribe to the
extent that it directly conflicts with the holding in Hagen.
BACKGROUND
I. Introduction
This case is unlike other reservation diminishment cases in which courts
must decide whether congressional enactments opening reservation lands to non-
Indian settlement have diminished or disestablished reservation boundaries. See,
e.g., Solem v. Bartlett, 465 U.S. 463 (1984); Rosebud Sioux Tribe v. Kneip, 430
U.S. 584 (1977); DeCoteau v. District County Court, 420 U.S. 425 (1975); Mattz
v. Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent of Wash. State
Penitentiary, 368 U.S. 351 (1962); United States v. Celestine, 215 U.S. 278
(1909). Over a decade ago, we answered that question when we addressed
whether congressional enactments from 1902 through 1905 had the effect of
diminishing the Uintah Valley Reservation. Ute Indian Tribe, 773 F.2d at 1093.
Sitting en banc in 1985, we held that the Reservation had not been diminished.
Id. The Supreme Court denied certiorari on December 1, 1986. Ute Indian Tribe
v. Utah, 479 U.S. 994 (1986).
The State of Utah sought to relitigate the boundary issue in three criminal
actions commenced in the Utah state courts. In these cases, the Utah Supreme
Court concluded that the 1902-1905 allotment legislation had diminished the
Uintah Valley Reservation. State v. Hagen, 858 P.2d 925 (Utah 1992); State v.
Coando, 858 P.2d 926 (Utah 1992); State v. Perank, 858 P.2d 927 (Utah 1992).
In 1994, the Supreme Court granted certiorari "to resolve the direct conflict
between these decisions of the Tenth Circuit and the Utah Supreme Court on the
question whether the Uintah Reservation has been diminished." Hagen, 510 U.S.
at 409. The Supreme Court expressly disagreed with our decision in Ute Indian
Tribe and held that the Uintah Valley Reservation had been diminished. Id. at
421-22. In this appeal, we decide whether to modify our judgment in Ute Indian
Tribe, after the time for rehearing has passed, in light of its conflict with a later,
contrary decision of the Supreme Court.
II. Ute Indian Tribe I-III: The District Court, Panel, and En Banc
Opinions
In 1975, the Tribe sought to exercise jurisdiction over all of the land
originally encompassed in the Uintah Valley Reservation pursuant to the Tribe's
newly enacted Law and Order Code. When non-Indians living in and around
several towns within the original boundaries protested the action, the Tribe sought
declaratory and injunctive relief in federal court to establish the exterior
boundaries of the Uintah Valley Reservation and to restrain the state and local
defendants from interfering with enforcement of the Law and Order Code within
those boundaries. The Tribe argued that the original boundaries of the Uintah
Valley Reservation, established by executive order in 1861 and confirmed by
Congress in 1864, continued to exist undiminished. The Tribe thus argued that it
had jurisdiction over all of the lands encompassed within the original boundaries
of the Reservation because such lands were "Indian country" as defined by 18
U.S.C. 1151.
On the other hand, the state and local defendants argued that congressional
enactments from 1902 through 1905, opening Reservation lands to non-Indian
settlement and setting aside lands for a national forest reserve, had the effect of
diminishing the Uintah Valley Reservation. The defendants also argued that
congressional enactments from 1894 to 1897 had the effect of completely
disestablishing the Tribe's Uncompahgre Reservation.
In addressing the parties arguments, the district court gave a comprehensive
summary of the relevant legislation, legislative history, contemporaneous
interpretations by the executive branch, and other circumstances surrounding the
enactment of the legislation. We therefore only briefly summarize the legislative
treatment of the lands below.
A. Legislative Treatment of Reservation Lands
1. The Uintah Valley Reservation
In 1902, Congress passed legislation directing the Secretary of the Interior
to make individual allotments out of the Uintah Valley Reservation by October 1,
1903, provided that a majority of the adult male members of the Ute Indians
consented. Act of May 27, 1902, ch. 888, 32 Stat. 263, 263-64 ("1902 Act").
The 1902 Act stated that after October 1, 1903, "all the unallotted lands within
said reservation shall be restored to the public domain" and subject to entry by
non-Indians under the homestead laws. Id. (emphasis added). Congress delayed
the allotment process, however, and extended the opening date in 1903 and again
in 1904. Act of Mar. 3, 1903, ch. 994, 32 Stat. 982, 997-98; Act of Apr. 21,
1904, ch. 1402, 33 Stat. 189, 207-08. In 1905, Congress extended the opening
date a third time--to September 1, 1905--and directed the Secretary to allot the
Reservation unilaterally if the Tribe's consent was not obtained. Act of Mar. 3,
1905, ch. 1479, 33 Stat. 1048, 1069-70 ("1905 Act"). The 1905 Act did not
contain the same language restoring the unallotted and unreserved lands to the
"public domain," but provided that such lands "shall be disposed of under the
general provisions of the homestead and townsite laws of the United States." Id.
(emphasis added).
2. The National Forest Lands
In addition to extending the time of entry under the 1902 Act and
describing the entry process, the 1905 Act authorized the President to "set apart
and reserve" lands in the Reservation as a forest reserve prior to opening. 33
Stat. 1070. Pursuant to this power, on July 14, 1905, President Theodore
Roosevelt issued a proclamation designating some 1,010,000 acres within the
Uintah Valley Reservation as an addition to the Uintah National Forest Reserve.
Proclamation of July 14, 1905, 34 Stat. 3113, 3116. The proclamation also
declared that the unallotted lands in the Uintah Valley Reservation, which were
not otherwise reserved, would "be opened to entry, settlement and disposition
under the general provisions of the homestead and townsite laws." Id. at 3120.
3. The Uncompahgre Reservation
In 1894, Congress passed legislation providing for the allotment of the
Uncompahgre Reservation to individual members of the Tribe. The legislation
stated that all unallotted lands "shall . . . be restored to the public domain and
made subject to entry" under the homestead and mineral laws. Act of Aug. 15,
1894, ch. 290, 28 Stat. 286, 337-38 (emphasis added). The allotment process,
however, was delayed, and in 1897, Congress passed legislation mandating the
allotment of the Uncompahgre Reservation and opening the unallotted lands to
entry. Act of June 7, 1897, ch. 3, 30 Stat. 62, 87.
B. Ute Indian Tribe I: 1981 District Court Opinion
In 1981, the district court issued Ute Indian Tribe v. Utah, 521 F. Supp.
1072 (D. Utah 1981) (hereinafter "Ute Indian Tribe I"). The district court held
that Congress's decision to open the unallotted lands to settlement did not
diminish the Reservation's boundaries. Id. at 1132. The court recognized that the
language of the 1902 Act directing that all unallotted lands "be restored to the
public domain" would have diminished the Reservation had the unallotted lands
then been opened for settlement. Id. at 1122. The court concluded, however, that
the 1905 Act superseded the 1902 Act. Id. Unlike the 1902 Act, the 1905 Act
provided only that the unallotted lands were to "be disposed of under" the
homestead and township laws. Id. at 1132. The district court reasoned that the
new language indicated that Congress did not intend to diminish the Reservation.
Id. The district court therefore concluded that the unallotted lands remained part
of the Uintah Valley Reservation. Id.
The district court reached a different conclusion on the status of the
National Forest Lands and the Uncompahgre Reservation. Regarding the National
Forest Lands, the court concluded that the language in the 1905 Act empowering
the president to "set apart and reserve" timber lands for a national forest
demonstrated Congress's clear intent to diminish the Uintah Valley Reservation.
Id. at 1136. Likewise, the district court concluded that the language in the 1894
Act restoring unallotted reservation lands "to the public domain" showed a clear
congressional intent to disestablish the Uncompahgre Reservation. Id. at 1106.
C. Ute Indian Tribe II: The 1983 Court of Appeals Panel Decision
In a two-judge majority opinion, a panel of this court affirmed the district
court opinion in part and reversed in part. Ute Indian Tribe v. Utah, 716 F.2d
1298 (10th Cir. 1983) (hereinafter "Ute Indian Tribe II"). The panel held that
none of the lands in question remained within the original reservation boundaries.
The panel agreed with the district court that the 1902 Act's language
restoring the unallotted lands "to the public domain" was sufficient to diminish
the Uintah Valley Reservation. Id. at 1308-09. Unlike the district court,
however, the panel concluded that the 1905 Act did not supersede Congress's
intent to diminish the Reservation under the 1902 Act. Id. at 1311. Thus, the
panel held that the 1902-1905 allotment legislation had diminished the Uintah
Valley Reservation. Id. at 1311-12.
The panel agreed with the district court's conclusions regarding the
National Forest Lands and the Uncompahgre Reservation. The panel concluded
that Congress intended to withdraw the National Forest Lands, id. at 1314, and
the Uncompahgre Reservation, id. at 1307, from their original reservation status.
D. Ute Indian Tribe III: The 1985 Court of Appeals En Banc
Decision
On rehearing en banc, a majority of the court held that all of the lands at
issue retained their reservation status. Ute Indian Tribe v. Utah, 773 F.2d 1087,
1093 (10th Cir. 1985) (en banc) (hereinafter "Ute Indian Tribe III"). The en banc
court concluded that the 1902-1905 allotment legislation did not have the effect
of diminishing or disestablishing the Uintah Valley Reservation. Id. at 1089.
Similarly, the court held that the withdrawal of the National Forest Lands did not
diminish the Uintah Valley Reservation, id. at 1090, and that the 1894 and 1897
allotment legislation did not disestablish the Uncompahgre Reservation. Id. at
1093.
In reaching a holding completely contrary to the panel, the en banc court
relied on the newly-decided case of Solem v. Bartlett, 465 U.S. 463 (1984). The
court concluded that under Solem, congressional language restoring reservation
lands to the public domain "is not the same as a congressional state of mind to
diminish," and hence "does not reliably establish the clear and unequivocal
evidence of Congress' intent to change the boundaries." Ute Indian Tribe III, 773
F.2d at 1092. Further, the court found no legislative history or other
contemporary historical evidence sufficient to support a finding of diminishment
or disestablishment as to any of the lands in question. Id. at 1092-93. Thus, the
court held that all the lands retained their reservation status and remained Indian
country, subject to the jurisdiction of the Tribe and the federal government.
Thereafter, the Supreme Court denied certiorari. Ute Indian Tribe v. Utah, 479
U.S. 994 (1986).
III. Utah v. Hagen: The 1994 Supreme Court Decision
In several related criminal cases arising in the late 1980s, the Utah Supreme
Court ruled, contrary to the Tenth Circuit, that the original boundaries of the
Uintah Valley Reservation had been diminished by the 1902-1905 allotment
legislation. See State v. Perank, 858 P.2d 927 (Utah 1992); State v. Coando, 858
P.2d 926 (Utah 1992); State v. Hagen, 858 P.2d 925 (Utah 1992). The cases arose
as a result of state felony prosecutions against three Indians for crimes committed
in Myton and Roosevelt, Utah, two towns within the original boundaries of the
Uintah Valley Reservation. The defendants challenged the prosecutions on the
basis that the state trial court lacked jurisdiction over their crimes because the
defendants committed their crimes in "Indian country" as defined by 18 U.S.C.
1151(a). The defendants argued that under our en banc decision in Ute Indian
Tribe III, the towns remained within the Reservation and thus within Indian
country. The State of Utah, on the other hand, argued that our holding in Ute
Indian Tribe III was wrong, that the Reservation had been diminished, and that
the towns were outside the Reservation and thus outside Indian country. The
Utah Supreme Court agreed with the State, and held that because the Reservation
had been diminished, the state trial court properly exercised criminal jurisdiction
over the defendants. Perank, 858 P.2d at 953; Coando, 858 P.2d at 927; Hagen,
858 P.2d 925-26.
In 1993, the Supreme Court granted certiorari in Hagen to resolve the
conflict between the decisions of the Tenth Circuit and the Utah Supreme Court.
Hagen v. Utah, 507 U.S. 1028 (1993). In 1994, the Supreme Court affirmed the
Utah Supreme Court's resolution of the boundary issue, expressly rejecting Ute
Indian Tribe III's conclusion that the Uintah Valley Reservation had not been
diminished. Hagen v. Utah, 510 U.S. 399, 421-22 (1994).
In Hagen, the Supreme Court performed a familiar analysis of the statutory
language, legislative history, and contemporary historical understanding of the
allotment legislation at issue. See id. at 410-21. The Court's analysis, however,
was limited to the status of the unallotted Uintah Valley Reservation lands opened
to settlement under the 1902-1905 allotment legislation. See id. The Court did
not address the National Forest Lands or the Uncompahgre Reservation, neither of
which was before the Court for consideration. After looking to the three
diminishment factors, the Court concluded that Congress's "baseline intent to
diminish the Reservation expressed in the 1902 Act survived the passage of the
1905 Act," id. at 415, and that the "[c]ontemporary historical evidence supports
[the] conclusion that Congress intended to diminish the Uintah Reservation." Id.
at 416. The Court therefore upheld the State of Utah's exercise of criminal
jurisdiction over acts occurring within the original boundaries of the Uintah
Valley Reservation. Id. at 421-22.
IV. Ute Indian Tribe IV: The 1996 District Court Decision
Immediately after the Utah Supreme Court issued its slip opinions in the
state criminal cases, the Tribe filed a motion in federal district court seeking a
permanent injunction preventing the state and local defendants from enforcing or
relying upon Perank, Coando, and Hagen in any way. On August 31, 1992, the
state and local defendants and the Tribe entered into a stipulation, under which
the state and local defendants agreed to refrain from enforcing the Utah Supreme
Court decision in Perank or exercising jurisdiction in any manner inconsistent
with the en banc decision in Ute Indian Tribe III, pending a decision on the merits
in the district court. The district court incorporated the stipulation into an order
dated September 2, 1992 ("Injunction Order").
In 1993, after the Supreme Court granted certiorari in Hagen, the district
court stayed further proceedings on the Tribe's motion pending the outcome of
Hagen in the Supreme Court. On February 23, 1994, the Supreme Court issued its
decision in Hagen. On April 24, 1994, the state and local defendants filed a
motion to vacate and set aside the Injunction Order and to dismiss the Tribe's
motion for permanent injunctive relief.
On May 2, 1994, the district court modified the Injunction Order "to allow
the [s]tate and [l]ocal [d]efendants to prosecute felony crimes occurring on lands
within the original boundaries of the Uintah Valley Reservation which are not
`Indian country' as defined by 18 U.S.C. 1151, et seq." The court emphasized
that it was "not determining one way or another which lands may or may not
constitute `Indian country.'"(1)
On April 2, 1996, the district court issued Ute Indian Tribe v. Utah, 935 F.
Supp. 1473 (D. Utah 1996) ("Ute Indian Tribe IV"). In a comprehensive and
detailed opinion, the district court fully addressed the binding effect, as between
the parties, of our earlier en banc decision in Ute Indian Tribe III, as well as the
extent of direct conflict between Ute Indian Tribe III and Hagen. Id. at 1484-
1516. Rather than finally deciding these issues, however, the district court held
that it was bound under "law of the case" rules to enforce the mandate in Ute
Indian Tribe III. Id. at 1516-25. Thus, the district court did not reach the merits
of the Tribe's request for permanent injunctive relief. Id. In lieu of a final
(1) The district court modified its order to allow the State of Utah to prosecute
felonies on former reservation lands because in United States v. Duncan, 857 F. Supp.
852 (D. Utah 1994), the district court had dismissed a federal felony prosecution against
an Indian for acts occurring in Roosevelt, Utah. The court ruled that Hagen precluded
federal jurisdiction on such lands. Id. at 853.
resolution of the dispute, the district court requested that we issue instructions on
how to proceed and suggested that we construe the request as an invitation to
recall our mandate in Ute Indian Tribe III. The court also concluded that the
Injunction Order, as modified, should remain in effect to allow the state and local
defendants to prosecute criminal felonies occurring on former Uintah Valley
Reservation lands. Id. at 1531. This appeal followed.
DISCUSSION
I. Introduction
On appeal, the Tribe maintains that principles of finality require the district
court to enjoin permanently the state and local defendants from exercising
jurisdiction in a manner inconsistent with Ute Indian Tribe III. On the other
hand, the state and local defendants argue that we should give effect to the
contrary boundary determination in Hagen by recalling the mandate in Ute Indian
Tribe III in its entirety and reinstating the original Tenth Circuit panel opinion.
The United States as amicus curiae urges us to recall and modify the mandate in
Ute Indian Tribe III only to the extent that it directly conflicts with Hagen.
In resolving this dispute, we follow a three-part framework. First, we
decide whether the district court was bound to follow the mandate in Ute Indian
Tribe III by continuing the Injunction Order. After concluding that the district
court properly followed our mandate, we nevertheless decide whether to modify
Ute Indian Tribe III in light of the inconsistent boundary determination in Hagen.
Finally, after concluding that Ute Indian Tribe III should be modified, we decide
whether to recall our mandate in its entirety or modify our en banc opinion only
to the extent that it directly conflicts with Hagen. Because of the importance of
finality, we conclude that Ute Indian Tribe III should be modified only to the
extent that it conflicts with Hagen.
II. The Binding Effect of Ute Indian Tribe III
We begin by determining the binding effect of Ute Indian Tribe III on the
allocation of jurisdiction among the federal government, the Tribe, and the state
and local defendants. Whether the district court was bound by the mandate in Ute
Indian Tribe III to continue the Injunction Order, and whether this court is bound
by principles of finality to enforce our prior boundary determination, are separate
inquiries. We address each question in turn.
A. The Mandate Rule
The state and local defendants first contend that the district court erred in
holding that it was bound by Ute Indian Tribe III to continue to enjoin their
exercise of civil and non-felony jurisdiction despite the Supreme Court's decision
in Hagen. We review the district court's decision to continue an injunction for an
abuse of discretion, examining "whether the district court committed an error of
law or relied on clearly erroneous fact findings." Walmer v. United States Dep't
of Defense, 52 F.3d 851, 854 (10th Cir.), cert. denied, 116 S. Ct. 474 (1995). We
review questions of law decided by the district court de novo. Harolds Stores,
Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1555 (10th Cir.), cert. denied,
117 S. Ct. 297 (1996).
The district court concluded that it was bound by the "law of the case"
doctrine to enforce the boundary determinations in Ute Indian Tribe III. Under
that doctrine, once a court decides an issue, the same issue may not be relitigated
in subsequent proceedings in the same case. Arizona v. California, 460 U.S. 605,
618-19 (1983); United States v. Monsisvais, 946 F.2d 114, 115-16 (10th Cir.
1991). An important corollary of the doctrine, known as the "mandate rule,"
provides that a district court "must comply strictly with the mandate rendered by
the reviewing court." Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of
America, 962 F.2d 1528, 1534 (10th Cir. 1992); see also Mason v. Texaco, Inc.,
948 F.2d 1546, 1553 (10th Cir. 1991) ("Under the `law of the case' doctrine, the
district court may not deviate from the appellate court's mandate."). In this case,
the district court concluded that the mandate in Ute Indian Tribe III remained in
effect and therefore ruled that it was bound to follow the mandate by continuing
to enjoin the defendants' exercise of jurisdiction.
The state and local defendants contend that the district court is not bound
by the mandate in Ute Indian Tribe III because of an intervening change in
controlling law, an exception to the mandate rule. See Pittsburg & Midway Coal
Mining Co. v. Watchman, 52 F.3d 1531, 1536 n.4 (10th Cir. 1995). The
defendants maintain that because Hagen was "intervening" (i.e., coming after Ute
Indian Tribe III but before the Tribe's present motion for injunctive relief), the
district court should have departed from the appellate mandate and followed the
boundary determination in Hagen. The defendants contend that the district court,
by failing to do so, wrongfully continued to enjoin th
