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United States v. Uintah Valley Shoshone Tribe

United States District Court, D. Utah, Central Division

September 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
UINTAH VALLEY SHOSHONE TRIBE; DORA VAN; RAMONA HARRIS; LEO LEBARON & OTHERS WHO ARE IN ACTIVE CONCERT WITH THE FOREGOING, Defendants.

          MEMORANDUM DECISION AND ORDER

          BRUCE S. JENKINS, UNITED STATES SENIOR DISTRICT JUDGE

         Plaintiffs Motion for Summary Judgment[1] and Defendants' competing Motion for Summary Judgment[2] came before the Court on June 1, 2018, [3] Jared C. Bennet appearing on behalf of Plaintiff United States of America, ("United States") and Michael J. Rock appearing on behalf of an organization called the Uintah Valley Shoshone Tribe, ("UVST") as well as individual Defendants Dora Van, Ramona Harris, and Leo LeBaron. The parties filed cross-motions for summary judgment on April 30, 2018, there being no genuine contest as to material facts. Plaintiff United States of America seeks, among other things, to permanently enjoin Defendants from selling and issuing hunting and fishing permits for use on state, federal, or tribal lands of the Ute Indian Tribe of the Uintah and Ouray Reservation ("Ute Tribe"). The sale of such licenses allegedly violates 18 U.S.C. § 1343, a criminal statute, which provides the following:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

         At the June 1, 2018 hearing the Court heard oral arguments on the motions and reserved judgment. Having considered the parties' briefs, the undisputed evidence, the oral arguments of counsel, the relevant law, and the full record in this matter, the Court has determined that Plaintiffs motion for relief by way of an injunction should be DENIED, but otherwise should be GRANTED, and Defendants' cross-motion should be DENIED.

         Factual Background

         The material facts in this case are undisputed. The UVST, the Defendant, is not a tribe currently recognized by the United States. It is currently an organization composed of "Mixed-Bloods"[4] (and their descendants) who were formerly members of the Ute Tribe, but whose membership therein and relationship to the federal government was terminated under the Ute Partition and Termination Act of 1954 ("UPTA"). Three UVST "tribal leaders" are named as Defendants in Plaintiffs complaint; Dora Van, the chairwoman of the UVST, Ramona Harris, director of the UVST, and Leo LeBaron, director for wildlife of the UVST's wildlife department.

         Defendants have been issuing hunting and fishing licenses purportedly authorizing the recipients to take certain wildlife from "lands within the original confines of the Uintah and Ouray Reservation as set forth by Executive Orders of October 3, 1861, and January 5, 1882."[5]This area now, in contrast to at the time of original formation, includes a variety of land ownership, specifically state, federal, tribal, private and Ute Tribal Trust Lands. It is the position of the United States' that the authority to issue licenses on Tribal Trust Lands lies solely with the Ute Indian Fish and Wildlife Department, overseen by a joint committee of the Ute Tribal Business Committee and a designated representative of the Mixed-Bloods; and with respect to state and federal lands, and lands held in trust by the federal government, that the authority lies solely with the tribe, the federal government and the State of Utah. The United States claims the UVST has no authority to issue licenses for hunting and fishing on any of these lands. The United States asserts that by representing to permit purchasers that the UVST does have such authority, the UVST or its agents are engaging in fraud in violation of 18 U.S.C. § 1343. Defendants made use of interstate wire facilities in furtherance of their scheme to issue licenses, which Plaintiff argues justifies the issuance of a permanent injunction to prohibit them from issuing licenses in the future. 18 U.S.C. § 1345 authorizes a permanent injunction where the United States can establish that a person is violating or about to violate 18 U.S.C. § 1343. The Defendants agreed in open court to issue no licenses while this matter is pending.

         Issuance of a permanent injunction under 18 U.S.C. § 1345 requires the United States to prove: "(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest." Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir. 2007) (quotations and citations omitted). The United States asserts each element justifying a permanent injunction is demonstrated by uncontested facts.

         In response, Defendants admit selling licenses but claim authority to do so pursuant to "treaty rights" unaffected by the UPTA. They assert that because they do have the authority, the issuance of the licenses is not fraudulent and therefore they are not in violation of 18 U.S.C. § 1343. Ultimately, the merit of Plaintiffs claim hinges on what sovereign rights, if any, are held by the UVST in lands within the original confines of the Uintah and Ouray Reservation as set forth by the Executive Orders referenced above as modified by subsequent legislation and tribal action. A determination on this point requires the Court to examine the vacillating history of the federal government's treatment of historic tribal lands and tribal organizations as modified by congressional and tribal action.

         Historical Background

         The present status of rights in Ute Tribal and Ute Trust Lands of the Uintah and Ouray Reservation result from a long history of federal government action. The original Uintah Valley Reservation was created in 1861 by President Abraham Lincoln. Executive Order of October 3, 1861 reprinted in Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1157 app. A (D.Utah 1981), affd in part, rev'd in part, 773 F.2d 1087 (10th Cir.1985), cert, denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). Through this Executive Order, President Lincoln approved a recommendation of the Secretary of the Interior that "the Uintah Valley, in the Territory of Utah, be set apart and reserved for the use and occupancy of Indian Tribes." Uintah and White River Band of Ute Indians v. United States, 152 F.Supp. 953, 954 (Ct. CI. 1957), quoting 1 Kappler p. 900.

         A few years after Lincoln issued the Executive Order of 1861, the Act of May 5, 1864, 13 Stat. 63, "authorized and required the Superintendent of Indian Affairs to bring together and settle in the Uintah Valley as many of the Indians of Utah Territory as might be found practicable. It said that the Uintah Valley 'is hereby set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as maybe induced to inhabit the same.'" Uintah and White River Band of Ute Indians, 152 F.Supp. at 954.

         In 1865 a document known as the "Spanish Fork Treaty" was negotiated with numerous Indian groups in Utah "providing for their surrender of all their rights in land in that territory which was suitable for agricultural and mineral purposes, but reserving to the Indians for their exclusive use and occupation 'the entire valley of the Uintah River within Utah Territory'." Id. Although the "Spanish Fork Treaty" was never ratified by the United States Senate, "various individual Indians and groups of Utah Indians, from time to time after 1865, moved into the Uintah Valley... [T]he Indians so migrating into the reservation, as well as those already there before the reservation was established, and their descendants, became and have since been known as the Uintah Indians or Uintah Ute Indians.. .and became grantees" under the 1864 Act. Id. at 954-55. The members of the UVST are among those persons descending from these original groups in the Uintah Valley.[6]

         Defendants cite the "Spanish Fork Treaty of 1865" in their Response to Plaintiffs Summary of Argument[7] as the source of their hunting and fishing rights. In their original motion Defendants rely on a different source, citing instead "the 1861 and 1882 treaties."[8] Regardless, with respect to the "Spanish Fork Treaty" it is enough to note that it was never ratified and thus had no legal effect. Id. at 954.

         In 1882, President Chester A. Arthur authorized the creation of the Uncompahgre Reservation, upon which the Uncompahgre Utes were settled. Executive Order of January 5, 1882, reprinted in Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1164 app. A (D. Utah 1981). This reservation was not within the area of the Uintah Reservation. Hackford v. Babbit, 14 F.3d 1457, 1461 (10th Cir. 1994). From portions of both the Uncompahgre Reservation and the Uintah Valley Reservation, the Uintah and Ouray Reservation was formed. See United States v. Van Murdoch, 132 F.3d 534, 540 (10th Cir. 1997).

         As recounted by the Tenth Circuit in Hackford, under the Indian Reorganization Act of 1934 the Uintah, White River, [9] and Uncompahgre Bands of the Ute Tribe reorganized to form the ...


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