Case No. 19-4093 UNITED STATES COURT OF APPEALS FOR THE … · 2020. 9. 10. · Case No. 19-4093 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT RICHARD DOUGLAS HACKFORD, Appellant/Plaintiff,

Case No. 19-4093

UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

RICHARD DOUGLAS HACKFORD,

Appellant/Plaintiff,

v.

THE STATE OF UTAH, GARYHERBERT, in his capacity as Governor ofUtah; SEAN D. REYES, in his capacity asAttorney General of Utah; UINTAHCOUNTY; G. MARK THOMAS, in hiscapacity as County Attorney for UintahCounty; and LOREN ANDERSON, in hiscapacity as Deputy County Attorney UintahCounty,

Appellees/Defendants.

On Appeal from the United States District Court

for the District of Utah, Northern Division

Honorable Clark Waddoups

D.C. No. 2:18-cv-00631-CW

RESPONSIVE BRIEF OF UINTAH APPELLEES

Jesse C. Trentadue (#4961) SUITTER AXLAND, PLLC8 East Broadway, Suite 200Salt Lake City, UT 84111

ORAL ARGUMENT NOT REQUESTED Telephone: (801) 532-7300Facsimile: (801) [email protected] for Uintah County Defendants

Appellate Case: 19-4093 Document: 010110307502 Date Filed: 02/21/2020 Page: 1

mailto:[email protected]

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF PRIOR AND/OR RELATED APPEALS . . . . . . . . . . . . . . . viii

TENTH CIRCUIT RULE 31.3 STATEMENT REGARDING SEPARATE BRIEFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

REFERENCE TO RECORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

NATURE OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF CASE: PROCEDURAL POSTURE . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF CASE: FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ARGUMENT: Pursuant to §677v of the Ute Partition Act,Hackford’s Status is That of a Non-Indian . . . . . . . . . . . . . . . . . . . . 16

ARGUMENT: Hackford’s Claims Are Barred by Collateral Estoppel. . . . . 33

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

STATEMENT OF COUNSEL AS TO ORAL ARGUMENT. . . . . . . . . . . . . . . . 40

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

CERTIFICATE OF DIGITAL SUBMISSIONand PRIVACY REDACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

ii


CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

District Court Order Granting Motions to Dismiss . . . . . . . . . . . . . Exhibit A

25 U.S.C. §677v (Ute Partition Act) . . . . . . . . . . . . . . . . . . . . . . Exhibit B

District Court Order re: Motion for Preliminary Injunction . . . . . . Exhibit C

House Report 2493, 83rd Congress, Second Session 1954. . . . . . . Exhibit D

Hearing Transcript S. 3532, dated 07/16/1954 . . . . . . . . . . . . . . . . Exhibit E

iii


TABLE OF AUTHORITIES

Cases

Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972) . . . . . . . . . . . . . . . . . . . . . ix

Aloe Creme Laboratories, Inc. v. Francine Co., Inc., 425 F.2d 1295(5th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Atiya v. Salt Lake County, 988 F.2d 1013 (10th Cir. 1993) . . . . . . . . . . . . . . . . . . . . 33, 39

Bobby v. Bies, 556 U.S. 825 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Branson v. O.F. Mossberg & Sons, Inc. 221 F.3d 1064 (8th Cir. 2000) . . . . . . . . . . . . . 32

Campbell v. City of Spencer, 777 F.3d 1073 (10th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 28

Chapoose v. Clark, 607 F.Supp 1027 (D. Utah 1985) . . . . . . . . . . . . . . . . . . . . . ix, 22, 32

Escambia County v. McMillian, 466 U.S. 48 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Garcia v. Int’l Elevator Co.358 F.3d 777 (10th Cir. 2004) . . . . . . . . . . . . . . 14, 35, 36, 37

Gardner v. Petry, 535 Fed. Appx. 767(10th Cir.2013). . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Gardner et. al. v. United States of America et. al. 25 F.3d 1056 (10th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 20

Gardner v. Ute Tribal Court, 36 Fed. Appx. 927(10th Cir. 2002) . . . . . . . . . . . . . . . . . . ix

Hackford v. Babbitt, 14 F.3d 1457 (10th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Hackford v. Utah, 2015 WL 4717639 (D. Utah Aug. 7, 2015) aff’d 845 F.3d 1325(10th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . ix, 5, 7, 11, 12, 35

Jones v. U-Haul Co. Of Massachusetts & Ohio, Inc., 16 F.Supp.3d 922 (S.D. Ohio 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

iv


Latender v. Israel, 584 F.2d 817 (7th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Lynch v. Leis, 382 F.3d 642 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Martin v. Department of Justice, 488 F.3d 446 (D.C. Cir. 2007). . . . . . . . . . . . . . . . . . . 39

Mehlar Corporation v. City of St. Louis, Missouri, 530 F.Supp. 85 (E.D. Mo. 1981) . . . 37

Miller v. Glanz, 948 F.2d 1562 (10th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985). . . . . . . . . . . . . . . . . . . . . . 17

National Indian Youth Council, Intermountain Indian School Chapter v. Bruce, 485 F.2d 97 (10th Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Pierce v. Underwood, 487 U.S. 552 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Pierson v. Rogow, 2019 WL 1112293 at *7 (S.D. Fla. 2019) . . . . . . . . . . . . . . . . . . . . . 28

Rothman v. Gregor, 220 F.3d 81 (2nd Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). . . . . . . . . . . . . . . . . . . . . . . . . 18, 29

Singleton v. Wulff, 426 U.S. 106 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986). . . . . . . . . . . . . . . . . . . . 23

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) . . . . . . . . . . . . . . . . . . . . . . 18

Stanton v. District of Columbia Court of Appeals, 127 F.3d 72 (D.C. Cir. 1997) . . . . . . 37

State v. Gardner, 827 P.2d 980 (Utah Ct. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . ix, 22

State v. Reber, 171 P.3d 406 (Utah 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 22

State of Utah v. Babbitt, 53 F.3d 1145 (10th Cir. 1995). . . . . . . . . . . . . . . . . . . . 18, 25, 27

Turner v. Pub. Serv. Co. Of Colorado, 563 F.3d 1136 (10th Cir. 2009) . . . . . . . . . . . . . . 4

v


United States v. Antelope, 430 U.S.641 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Burland, 441 F.2d 1199 (9th cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Felter, 752 F.2d 1505 (10th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . 25

United States v. Heath, 509 F.2d 16 (9th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22

United States v. Moreno, 579 F.2d 371 (5th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 37

United States v. Murdock, 132 F.3d 534(10th Cir. 1997) . . . . . . . . . . . . . . . . . . 29, 30, 31

United States v. Plotts, 347 F.3d 873 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Prentis, 273 F.3d 1277(10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Sandoval, 29 F.32d 537 (10th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 4, 33

United States v. Wheeler, 435 U.S. 313 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ute Distribution Corp. v. United States, 938 F.2d 1157 (10th Cir. 1991) . . . . . . . . . . . . 25

Ute Indian Tribe of the Uintah & Ouray Reservation v. Probst,428 F.2d 491 (10th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

Washington v. Confederated Bands and Tribes of Yakima, 439 U.S. 463 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Statutes

58 Fed. Reg. 54 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

25 U.S.C. § 677 (Ute Partition Act) . . . . . . . . viii, ix, 2-9, 12-13, 15-17, 20-32, 35-36, 39

25 USCS§§ 566 (Klamath Tribe Restoration Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

25 USCS§§ 715 (Coquille Tribe Restoration Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

vi


25 USCS§§ 903 (Menominee Tribe of Wisconsin Restoration Act) . . . . . . . . . . . . . . . . 24

18 U.S.C. § 1153 (Major Crimes Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

California Rancheria Act, Pub. L. No. 85-671, Stat. 619 §§ 1, 9 and 10(b) (1958). . . . . 18

Other

U.S. Const. Art. I §8, cl.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

U.S. Const. Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 29, 30

U.S. Const. Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

U.S. Const. Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Federal Rule of Appellate Procedure 26.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

DUCivR 31.3(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

Fed. R. Civ. P. 5.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 12, 28

DUCivR 24-1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 12, 28

H.R. Rep. No. 2493 (1954) reprinted in Vol. 2 U.S.C.A.N. 3355 (1954) . . . . . . . . . . . . 19

Orme June 15, 1954 Letter to Senator Butler, reprinted in Vol. 2 U.S.C.A.N.3357 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Hearing H.R. Rep. Subcommittee on Indian Affairs, 83rd Cong. July 16, 1954 . . . . . . . . 39

Senate Bill No. 3532 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

vii


STATEMENT OF PRIOR AND/OR RELATED APPEALS

Defendants-Appellees Uintah County, Utah, former Uintah County Attorney

Mark G. Thomas, and Deputy Uintah County Attorney Loren Anderson

(collectively “Uintah Appellees”) disagree with Appellant Richard Douglas

Hackford’s (“Hackford”) Statement of Related Cases. The principal issue

presented in this appeal involves the District Court’s interpretation of section 677v

of the Ute Partition Act,1 which provides as follows:

Upon removal of Federal restrictions on the property ofeach individual mixed-blood member of the tribe, the Secretaryshall publish in the Federal Register a proclamation declaring thatthe Federal trust relationship to such individual is terminated. Thereafter, such individual shall not be entitled to any of theservices performed for Indians because of his status as an Indian. All statutes of the United States which affect Indians becauseof their status as Indians shall no longer be applicable to suchmember over which supervision has been terminated, and thelaws of the several States shall apply to such member in thesame manner as they apply to other citizens within theirjurisdiction.2

More specifically, the issues on appeal relate to whether that statutory language

vests the State with authority/jurisdiction over “Mixed-Blood” Utes such as

1 25 U.S.C. §§677 et. seq. The Ute Partition Act has been “omitted” from West’son-line version of the U.S.C.A. But it is still available in print versions of both theU.S.C.A. and LexisNexis’ United States Code Service.

2 25 U.S.C. §677v.(emphasis added).

viii


Hackford because his alleged “Indian” status has terminated.3 Thus, a more

accurate Statement of Related cases would include not only Hackford’s prior case

challenging the State of Utah’s assertion of criminal jurisdiction over him,

Hackford v. Utah,4 but also those cases dealing with the non-Indian status of

Edson Gardner and Rickie Reber, other Mix-Blood or terminated Utes: Gardner

et. al. v. United States of America et. al.,5 Gardner v. Ute Tribal Court,6 Gardner

v. Petry,7 State v. Gardner,8 and State v. Reber.9

3 Hackford is among those persons of Ute Indian ancestry commonly referred to a“Mixed-Bloods” or “terminated” Utes. See Affiliated Ute Citizens v. United States, 406U.S. 128, 134, fn.3 1972). Mixed-Bloods or terminated Utes are those persons who wereremoved from the Ute tribal membership rolls pursuant to the Ute Partition Act and,therefore, are no longer considered to be “Indian” for purposes of State jurisdiction. Infact, Mixed-Blood Utes and their descendants can no longer become members of the UteTribe. See Chapoose v. Clark, 607 F.Supp 1027, 1036-37 (D. Utah 1985). Neither areMixed-Blood descendants a federally recognized tribe of their own. See 58 Fed. Reg.54,364 (1993).

4 2015 WL 4717639 (D. Utah Aug. 7, 2015), aff’d 845 F.3d 1325(10th Cir. 2017).

5 25 F.3d 1056 (10th Cir. 1994)(unpublished).

6 36 Fed. Appx. 927(10th Cir. 2002)(unpublished).

7 535 Fed. Appx. 767(10th Cir.2013)(unpublished).

8 827 P.2d 980 (Utah Ct. App. 1992).

9 171 P.3d 406 (Utah 2007).

ix


TENTH CIRCUIT RULE 31.3 STATEMENTREGARDING SEPARATE BRIEFS

Uintah Appellees are Uintah County and County officials. Thus, Rule 31.3

should not apply.10 The other appellees are the State of Utah, Governor Gary

Herbert, and Utah Attorney General Sean D. Reyes who are represented by

counsel from the Utah Attorney General’s Office, and separate briefing is the

most effective means of clearly presenting the Appellees’ respective issues on

appeal.

CORPORATE DISCLOSURE STATEMENT

Uintah County is a governmental entity. Therefore, no corporate disclosure

statement is required under Federal Rule of Appellate Procedure 26.1.

10 10th Cir. R. 31.3(D).

x


REFERENCE TO RECORD

Hackford filed of record an Appendix in support of his appeal which

Uintah Appellees submit is insufficient to address the issues presented. The

Uintah Appellees, therefore, have submitted a Supplemental Appendix, which

includes not only the parties’ briefing and transcript of hearing on the Motions to

Dismiss that form the basis of Hackford’s appeal, but also part of the record from

Hackford’s prior related case. Reference to matters in Hackford’s Appendix will

be by “App.” and reference to matters contained in the Supplemental Appendix

will be “Sup. App.” Statutes, orders and other matters included in the Addendum

to Uintah Appellees’ brief will be referenced by their exhibit number.

NATURE OF THE CASE

Hackford commenced this lawsuit against the Uintah Appellees, the State

of Utah and State officials, including the Governor, to enjoin his prosecution by

the State of Utah for speeding based upon his purported Indian status.11 He also

sought declaratory relief in the form of an order stating:(1) that the United States

District Court is the proper forum to determine the question of his status as an

Indian, (2) that he is an Indian, and (3) that the United States District Court is the

11 Complaint, Supp. App. pp. 189, ¶¶ 7-12 and 200, ¶ 4.

1


only court with jurisdiction over his traffic offense.12 Appellees moved to

dismiss,13 and the District Court granted those Motions based upon Hackford’s

status as a terminated Ute under §677v of the Ute Partition Act.14

Hackford brought this appeal from the District Court’s Order of dismissal.

In this appeal, Hackford contends that §677v of the Ute Partition Act is

unconstitutional.15 Hackford also contends that even if §677v is not

unconstitutional because he is of Indian ancestry, although not a member of a

federally recognized Indian tribe, he still cannot be prosecuted by the State of

Utah for his speeding offenses.16

ISSUES PRESENTED

The Uintah Appellees believe that Hackford’s statement of issues presented

12 Id. p. 189-200.

13 See Motions to Dismiss, Supp. App. pp. 222 and 225.

14 Order, Supp. App. 311. A copy of that Order is also included in the Addendumto this Brief as Exhibit A.

15 A copy of §677v of the Ute Partition Act is included in the Addendum to thisBrief as Exhibit B.

16 Hackford claims to be immune from State law even though the United States ofAmerica does not enforce traffic laws. Consequently, what Hackford is seeking issomething akin to a super citizen status whereby he is not answerable to anygovernmental authority with respect to his operation of a motor vehicle.

2


on appeal are as deficient as the Appendix that he filed in support of those issues.

The Uintah Appellees submit that the issues on appeal are the following:

1. Whether §677v of the Ute Partition Act subjects

Hackford to State jurisdiction?

2. Whether Hackford made the necessary showing for the

declaratory and injunctive relief he seeks?

3. Whether Hackford can challenge on appeal the

constitutionality of the Ute Partition Act when that issue was not

properly before the District Court because Hackford: (a) failed to

assert that claim in his Complaint; (b) failed to notify the Attorney

General of such a constitutional challenge as required by both the

Federal Rules of Civil Procedure and Local Rules;17 and (c) the

constitutionality of the Ute Partition Act was never ruled upon by the

District Court?

4. Furthermore, subsumed in the foregoing issues is

whether there is a record sufficient to permit this Court to affirm the

17 See Fed. R. Civ. P. 5.1, and DUCivR 24-1(a).

3


District Court on other grounds,18 such as Hackford’s claims being

barred by the doctrines of res judicata and/or collateral estoppel,19 and

whether his challenge to the constitutionality of the Ute Partition Act

presents a nonjusticiable political question?

STANDARD OF REVIEW

This Court reviews de novo a district court’s ruling granting of a Motion to

Dismiss.20 However, any factual findings made by the District Court as the basis

of the dismissal are reviewed for clear error,21 which means that after considering

the record as a whole, this Court determines that the District Court either lacked

factual support for its findings or this Court is left with a definite and firm

conviction that the findings were a mistake.22 In the instant case, however, the

District Court’s factual findings were stipulated to by Hackford’s counsel or

otherwise conceded by his counsel during oral argument. The District Court’s

18 See United States v. Sandoval, 29 F.32d 537, 542 fn. 6 (10th Cir. 1994).

19 Hackford also specifically identifies the collateral estoppel effect of his priorcase as an issue to be resolved in this appeal. See Hackford’s Appellate Brief, p. 9, ¶ 4.

20 See Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

21 See Pierce v. Underwood, 487 U.S. 552 (1988).

22 Turner v. Pub. Serv. Co. Of Colorado, 563 F.3d 1136, 1150 (10th Cir. 2009).

4


legal conclusions based upon the facts found are reviewed by this Court de novo.23

STATEMENT OF CASE: PROCEDURAL POSTURE

As previously noted, Hackford commenced this action in 2018 seeking

declaratory and injunctive relief to the effect that he was not subject to the

criminal jurisdiction of the State of Utah or Uintah County for the offense of

speeding. In his Complaint, Hackford raised no challenge with respect to the

constitutionality of the Ute Partition Act.24 Hackford has also never served the

Attorney General of the United States with the requisite notice that he was

challenging the constitutionality of the Ute Partition Act.25 Nevertheless, on

appeal Hackford devotes a significant portion of his Appellate Brief to arguing that

the Ute Partition Act is unconstitutional, which is an issue that was never

addressed by the District Court.26

Relying on the District Court’s decision in Hackford v. State,27 the Uintah

23 Pierce, 487 U.S. at 558.

24 See Complaint, Supp. App. pp. 187-200.


26 See Order Granting Defendants’ Motions to Dismiss, Supp. App. pp. 311-315.

27 2015 WL 4717639 (D. Utah Aug. 7, 2015).

5


Appellees raised both res judicata and collateral estoppel as affirmative defenses.28

Thereafter, State Appellees and Uintah Appellees separately moved to dismiss

Hackford’s Complaint based upon both §677v of the Ute Partition Act and the

doctrines of res judicata and collateral estoppel.29 In its Order granting Appellees’

Motions to Dismiss, District Court essentially found that “Mr. Hackford has

clearly already had his day in court” with respect to his claim of not being subject

to State and County jurisdiction based upon his purported in Indian status,30 but

declined to include either res judicata or collateral estoppel as additional reasons

to dismiss Hackford’s Complaint.31 Instead, the District Court dismissed

Hackford’s Complaint based upon his non-Indian status due to §677v of the Ute

Partition Act.32

STATEMENT OF CASE: FACTS

The Uintah Appellees disagree with Hackford’s statement of the case,

including his statement of the facts contained therein because they are deficient.

28 Answer, Fourth Affirmative Defense, Supp. App. 212.


30 Order, Supp. App. p. 312, fn. 2.

31 Id.

32 Id. pp. 313-315, ¶¶ 8-16.

6


There are two sources of facts which the Uintah Appellees submit are relevant to

the issues now before this Court on appeal: the record from the related prior case

of Hackford v. State,33 and the record in the instant case.

A. Prior Related Case:

1. In 2014, Hackford sued the State of Utah, Governor Herbert, Utah

Attorney General Reyes, and Wasatch County, Utah in the United States District

Court seeking declaratory and injunctive relief to the effect that he was an Indian

and not subject to the criminal jurisdiction of the State and County for the offenses

of speeding and failure to maintain insurance on his vehicle.34 Hackford did not

include a claim that the Ute Partition Act was unconstitutional.35

2. Hackford admitted in the Joint Pre-Trial Order that under the Ute

Partition Act (25 U.S.C. § 677) he is identified on the Federal Register as a

“Mixed-Blood” Ute Indian with enrollment number 142.36 Furthermore, Hackford

did not include in the Joint Pre-Trial Order a claim regarding the constitutionality

33 2015 WL 4717639 (D. Utah Aug. 7, 2015).

34 See Complaint, Supp. App. p. 1.

35 See id.

36 Joint Pre-Trial Order, Supp. App. p. 33, ¶6.

7


of the Ute Partition Act.37

2. The District Court held a pre-trial hearing on May 28, 2015. At that

hearing, the District Court also heard Hackford’s Motion for a Preliminary

Injunction.38

3. During that hearing, Hackford’s counsel repeatedly conceded that

Hackford was not a member of a federally recognized Indian tribe, and that

Hackford had in fact been terminated as a member of the Ute Tribe.39

4. At the conclusion of the May 28, 2015 hearing, the District Court

further found that according to federal law Hackford, despite his claim to be of

Indian heritage, was not an Indian so as to be beyond the criminal jurisdiction of

the State and/or Wasatch County.40

5. Based upon the foregoing findings, the District Court entered an

Order denying Hackford’s Motion for a Preliminary Injunction and dismissing his

37 See id. p. 35.

38 See Transcript of May 28, 2015 Hearing, Supp. App. 41.

39 Id. pp. 47-48, 50, 60, and 76.

40 Id. pp. 93-94.

8


Complaint for declaratory relief.41 In that Order, the District Court entered the

following findings of fact:

Based upon his alleged Indian status and/or the site ofthe offense allegedly being within ‘Indian Country,’ Mr.Hackford contends that the State of Utah and/or WasatchCounty, Utah lack the jurisdiction to prosecute him forviolations of State law. According to Mr. Hackford, he is onlysubject to the criminal jurisdiction of the United States and notthe State or Wasatch County.42

Mr. Hackford admits in the Joint Pre-Trial Order thatunder the Ute Partition Act (25 U.S.C. § 677) he is identifiedon the Federal Register as a “mixed-blood” Ute Indian withenrollment number 142. In this case, Mr. Hackford bases hisalleged Indian status on the fact of his being a “mixed-bloodUte.”43

* * *

The Court further finds that even if the site of the offensewas in fact Indian Country according to federal law Mr.Hackford, despite his claim to be of Indian heritage, is not anIndian so as to be beyond the criminal jurisdiction of the Stateand/or Wasatch County.44

41 See Order, Supp. App.174. A copy of that Order is included in the Addendumto this Brief as Exhibit C.

42 Id. p. 176,¶ 1.

43 Id. p. 176, ¶ 2.

44 Id. p. 179, ¶ 8.

9


6. Based on the foregoing Findings of Fact, the District Court entered

the following Conclusions of Law:

To escape the criminal jurisdiction of the State and/orWasatch County, Mr. Hackford must be both an Indian as thatterm is defined under federal law, and the site of the offensemust be within Indian Country; whereas Mr. Hackford is not anIndian, and the site of the offense was not within IndianCountry.45

In order to obtain the relief that he seeks, which is anOrder from this Court enjoining his prosecution by the Stateand/or Wasatch County, Mr. Hackford must show a substantiallikelihood of prevailing on the merits and that he has not donenor, given the current state of the law, can he do so.46

7. In accordance with its Findings of Fact and Conclusions of Law, the

District Court denied Hackford’s Motion for Preliminary Injunction and dismissed

his Complaint with prejudice.47

8. Hackford brought a Motion to Reconsider,48 which was heard by the

45 Id. p. 179-180, ¶ 1.

46 Id. p. 180, ¶ 2.

47 Id. pp. 180-181, ¶¶ 1-3.

48 Motion to Reconsider, Supp App. 97.

10


District Court on August 4, 2015,49 and denied.50

9. Hackford appealed, and this Court affirmed the District Court’s

dismissal of Hackford’s Complaint on the ground that the site of the traffic offense

was not Indian Country.51 In doing so, this Court did not review on appeal the

issue of Hackford’s alleged Indian status.52

10. Hackford petitioned the Supreme Court of the United States for a

Writ of Certiorari, which was denied on October 2, 2017.53

B. Instant Case:

1. On August 10, 2018, Hackford commenced the instant action against

the State Appelles and Uintah Appellees to again contest his non-Indian status

with respect to State jurisdiction over him.54

2. In his Complaint, Hackford sought declaratory and injunctive relief

49 Transcript of August 4, 2015 hearing, Supp. App. 104.

50 Order Re: Motion for Reconsideration, Supp. App.183.

51 Hackford, 845 F.3d at 1325.

52 Id. p. 1326.

53 Order Denying Certiorari, Tenth Circuit Case No. 15-4120, Document01019879784.

54 Complaint, Supp. App. 187.

11


to the effect that he was not subject to the criminal jurisdiction of the State of Utah

for the offense of speeding.55

3. In his Complaint, Hackford admitted that he was a “Mixed-Blood”

Ute Indian and that his role number was 142.56

4. In his Complaint, Hackford raised no challenge with respect to the

constitutionality of the Ute Partition Act.57

5. Hackford has also never served the Attorney General of the United

States with the requisite notice that he was challenging the constitutionality of the

Ute Partition Act.58

6. Based on the District Court’s decision in Hackford v. State,59 the

Uintah Appellees raised both res judicata and collateral estoppel as affirmative

55 See id. pp. 13-14, ¶¶ 1-4.

56 See id. p. 190, ¶ 15.

57 See id. pp. 187-200

58 See Fed. R. Civ. P. 5.1, and DUCivR 24-1(a). Had Hackford challenged theconstitutionality of the Ute Partition Act, the Uintah Appellees would have asserted as anaffirmative defense his failure to join indispensable parties such as the other Mixed BloodUtes and the Ute Tribe whose rights and interests would have been severely impacted ifthat law were struck down as unconstitutional.

59 2015 WL 4717639 (D. Utah Aug. 7, 2015).

12


defenses.60

7. The State Appellees and Uintah Appellees moved to dismiss

Hackford’s Complaint based upon both §677v of the Ute Partition Act, and the

doctrines of res judicata and collateral estoppel.61

8. The District Court heard the Motions to Dismiss on May 5, 2019,62

and granted the them on June 13, 2019 based upon Hackford’s non-Indian status

as a result of §677v of the Ute Partition Act.63

9. During the hearing, as is clearly evident by the following comments

to Hackford’s counsel, the District Court believed that Hackford’s claims were

barred by the doctrines of res judicata and collateral estoppel:

So under collateral estoppel provisions the issue has beenheard and decided by a judge and a final judgment entered. Whyisn’t that binding on Mr. Hackford?64

* * *Judge Jenkins’ decision may only be persuasive to me but

if it is the same party that has tried the issue under res judicataand collateral estoppel principles, once it has been tried he



62 See Transcript of June 5, 2019 Hearing, Supp. App. 289.

63 Order, Supp. App. pp. 313-315, ¶¶ 8-16.

64 Transcript of June 5, 2019 Hearing, Supp. App. 299.

13


doesn’t get a second shot at it.65

* * *Res judicata is once you’ve litigated an issue, had a fair

opportunity to be heard on that issue, and it has been decidedagainst you, you’re bound by it.66

10. In the Order granting Appellees’ Motions to Dismiss, the District

Court found that “Mr. Hackford has clearly already had his day in court” with

respect to his claim of not being subject to State jurisdiction based upon his

purported in Indian status,67 but declined to dismiss Hackford’s Complaint based

upon either res judicata or collateral estoppel.68

11. Relying upon the holding in Garcia v. Int’l Elevator Co.,69 the

District Court reasoned that the preclusive effect of the prior decision would be

more appropriately decided in the context of a Motion for Summary Judgment

rather than a Motion to Dismiss.70

65 Id. p. 300.

66 Id. p. 302.

67 See Order, Supp. App. at p. 312, fn. 2.(emphasis added).

68 Id.

69 358 F.3d 777, 782(10th Cir. 2004).

70 Order, Supp. App. at p. 312, fn. 2.

14


12. Instead, the District Court dismissed Hackford’s Complaint based

upon his non-Indian status under §677v of the Ute Partition Act.71

13. In doing so, the District Court also found that because Hackford’s

claim of Indian status was “meritless,”72 “he cannot establish that he is

‘substantially likely to succeed on the merits’ of his claim.”73

14. Based upon those findings, the District Court also rejected his claim

for declaratory and injunctive relief.74

SUMMARY OF ARGUMENT

Like millions and millions of Americans, Hackford may be of Native

American decent, but he is not a member of a federally recognized tribe so as to

preempt State and local jurisdiction over him. In fact, the non-Indian status of

Mixed-Blood Utes in general, and Hackford in particular, has already been

litigated and determined by both the District Court in a prior case and/or the

United States Court of Appeals for the Tenth Circuit in Gardner. Because

71 Id. pp. 313-315, ¶¶ 8-16.

72 Id. p. 314, ¶ 14.

73 Id.

74 Id. at ¶ 15.

15


Hackford’s non-Indian status has been settled, he has no likelihood of success on

the merits so as to be entitled to the declaratory and injunctive relief that he is

seeking.

In addition, Hackford’s claims are barred by the doctrines of res judicata

and collateral estoppel as a result of the District Court’s ruling in his prior case,

which was that pursuant to §677v his legal status is that of a non-Indian subject to

the civil and criminal jurisdiction of the State of Utah. Hackford also never

preserved or perfected the issue of the constitutionality of the Ute Partition Act for

the purpose of this appeal. Congress’ intent to terminate the Mixed-Bloods is also

a nonjusticiable political question, and this Court has already found that law to be

constitutional.

ARGUMENT: PURSUANT TO §677v OF THE UTE PARTITIONACT, HACKFORD’S STATUS IS THAT OF A NON-INDIAN

Hackford has repeatedly admitted that under the Ute Partition Act he is

identified on the Federal Register as a “mixed-blood” Ute Indian with enrollment

number 142, that he has been terminated as a member of the Tribe, and that he is

also not a member of any other federally recognized tribe. Based upon those

admitted facts, the District Court did not err in finding that Hackford was not an

16


“Indian” so as to be immune from State prosecution.75 Based upon that finding the

Court likewise did not err in concluding as a matter of law that §677v of the Ute

Partition Act made Hackford subject to the laws of the State of Utah, which

resulted in the District Court granting the Motions to Dismiss. More importantly,

the correctness of the District Court’s decision is supported by the authority that

Congress possesses with respect to Indians and their affairs, the legislative history

of the Ute Partition Act, and the case law interpreting §677v and other termination

legislation containing similar language.

The place to begin in analyzing §677v of the Ute Partition Act is to look at

the authority that Congress is given over Indians pursuant to the Indian Commere

Clause, which provides that: “The Congress shall have Power . . .To regulate

Commerce with foreign Nations, and among the several States, and with the

Indian Tribes.”76 The Supreme Court has clearly stated that this language vests

Congress with the “exclusive authority over relations with Indian tribes,”77 and has

75 Order Granting Motions to Dismiss, Supp. App. 314, ¶12.

76 U.S. Const. Art. I §8, cl.3.

77 Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764-65(1985).

17


further described this authority as “plenary,”78 which means that not only does

Congress has exclusive power over Indian affairs,79 including the power to “limit,

modify or eliminate” tribal sovereignty,80 but it also has the power to eliminate

tribal rights.81 It is, therefore, well settled that in the exercise of its plenary power

over Indians and/or their affairs, Congress can eliminate the sovereign power of

Indian Tribes;82 terminate a tribe thereby giving tribal members the status of non-

Indians;83 and when Congress exercises this legislative authority over Indians, the

Court must give effect to Congress’ intrusion into a tribe or its member’s lives.84

Thus, pursuant to the plenary power over Indians and their affairs granted to

78 Id.

79 Washington v. Confederated Bands and Tribes of Yakima, 439 U.S. 463, 470-71(1979).

80 State of Utah v. Babbitt, 53 F.3d 1145, 1150 (10th Cir. 1995)(Quoting SantaClara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)).

81 South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998).

82 See United States v. Wheeler, 435 U.S. 313, 323 (1978)(Tribal sovereignty existsonly at the sufferance of Congress, and is subject to complete defeasance).

83 See United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974)(Member of a“terminated” Indian tribe was no longer an Indian for criminal jurisdiction purposes); SeeCalifornia Rancheria Act, Pub. L. No. 85-671, 72 Stat. 619 §§ 1, 9 and 10(b)(1958)(Terminating the federal government’s trust relationship with forty-one Californiareservations or rancherias and divesting residents of their Indian status).

84 See Babbitt, 53 F.3d at 1150.

18


Congress by the Indian Commere Clause, it had the authority to enact §677v of

the Ute Partition Act.

The next step in interpreting §677v is to look at its legislative history of that

law such as House Report No. 2493, which provides in pertinent part that: “The

enactment of the bill will permit the early termination of Federal supervision over

approximately one-fourth of the members [i.e. the Mix-Blood members] of the Ute

Tribe, who have advanced culturally, socially, and economically to the point

where they do not need special Federal supervision and service.”85 Also

accompanying House Report No. 2493 was a June 14, 1954 letter from Orme

Lewis, Assistant Secretary of the Interior, to Hugh J. Butler, Chairman of the

Senate Committee on Interior and Insular Affairs responding to a request from

Chairman Butler for a report on a bill “for the termination of Federal supervision

over members” of the Ute Tribe.86

85 H.R. Rep. No. 2493 (1954) reprinted in Vol. 2 U.S.C.A.N. 3355, 3357(1954)(emphasis added). A copy of H.R. Rep. No. 2493 is included in the Addendum tothis Brief as Exhibit D. The Senate Report that accompanied the Ute Partition Act, S. R.No. 1632, is reported to repeat in substance the House Report both as to the origin andpurpose of the Ute Partition Act. See id.

86 Orme June 15, 1954 Letter to Senator Butler, reprinted in Vol. 2U.S.C.A.N.3357. (1954)(emphasis added). A copy of the Orme letter is also included inthe Addendum to this Brief as Exhibit D.

19


Mr. Orme informed Senator Butler that “the bill was drafted by the tribe

and introduced by the tribe,”87 and would “permit the early termination of

Federal supervision” of the Mix-Blood Utes.88 The legislative history of §677v

makes clear that with the enactment of this provision of the Ute Partition Act

Congress intended to end federal supervision and protection of the Mix-Blood

Utes such as Hackford by changing their status from Indian to non-Indian.

The final step in analyzing §677v is to consider how courts have interpreted

that statutory provision and similar language in other termination statutes

beginning with this Court’s decision in Gardner v. United States of America.89 In

Gardner, the plaintiff Edson Gardner, like Hackford, was a Mixed-Blood Ute.

Like Hackford, Gardner was stopped and cited for a number of traffic offenses

including speeding, driving an unregistered vehicle, and doing so without a

driver’s license. Also like Hackford, Gardner claimed to be Indian and thus

exempt from State law because the offense had occurred within the Uintah Valley

Reservation. He, too, sought an order from the United States District Court

87 Id. at 3357.

88 Id. at 3358.

89 25 F.3d 1056 (10th Cir. 1994)(1994 U.S. App. LEXIS 10090.(unpublished).

20


enjoining the State and Uintah County from prosecuting him.

The District Court dismissed Gardner’s Complaint, and he appealed. On

appeal, the issue was whether Gardner’s status as a descendant of a terminated

Mixed-Blood Ute made him an “Indian” and, therefore, immune from State

prosecution. This Court concluded that it did not.

In Gardner, the Court’s focus was upon the effect of the Ute Partition Act

with regard to subjecting Mixed-Blood Utes and their descendants to State

jurisdiction. The Gardner Court noted that while the Ute Partition Act did not

expressly provide that federal supervision over Mixed-Blood Utes and their

descendants was terminated, that was both the intent and effect of that Act. In

doing so, the Gardner Court focused upon the stated termination policy of

Congress during the 1950s, which produced the Ute Partition Act and similar

legislation:

[I]t is the policy of Congress, as rapidly as possible, tomake the Indians within the territorial limits of the United Statessubject to the same laws and entitled to the same privileges andresponsibilities as are applicable to other citizens of the UnitedStates, to end their status as wards of the United States, and togrant them all of the rights and prerogatives pertaining toAmerican citizenship.90

90 Id. at *4.

21


The Gardner Court went on to explain that this was so because the Ute

Partition Act specifically provided (1) that as to the terminated Utes and their

descendant’s federal laws applicable to Indians because of their status as Indians

no longer applied, and (2) that the terminated Utes would be subject to state laws

in the same manner as they applied to other citizens within state jurisdiction.91

The Gardner Court noted, too, that its reasoning was consistent with other similar

laws terminating Indian status.92 The Utah Court of Appeals reached the same

conclusion regarding §677v granting the State jurisdiction over Mixed-Blood Utes

in the case of State v. Gardner,93 and so did the Utah Supreme Court in Reber.94

Clearly, Congress intended that terminated Mix-Blood Utes and their descendants

would be subject to State law,95 which interpretation is also supported by the

91 Id.

92 See, e.g., United States v. Antelope, 430 U.S.641, 647 fn. 7 (1988)(Noting thatmembers of tribes whose official status has been terminated by Congress are no longersubject to federal criminal prosecution); United States v. Heath, 509 F.2d 16, 19 (9th Cir.1974)(same).

93 827 P.2d at 981.

94 171 P.3d at 410.

95 See also Chapoose, 607 F, Supp. at 1037(With respect to the Ute Partition Act,Congress’ intent was to terminate the Mixed-Bloods and to continue the Full-Bloods as afederally recognized tribe).

22


legislative history of §677v.

Finally, contemporaneously with enactment of the Ute. Partition Act,

Congress passed termination- or jurisdiction-defining laws with respect to other

tribes. These laws all contained termination language similar to that of the Ute

Partition Act: “[A]ll statutes of the United States which affect Indians because of

their status as Indians shall no longer be applicable to members of the tribe, and

the laws of the several States shall apply to the tribe and its members in the same

manner as they apply to other citizens or persons within their jurisdiction.”96

Furthermore Courts, including the United States Supreme Court, have interpreted

this language as not only divesting members of the affected tribes of their “Indian

status”, but also subjecting them to the criminal and civil jurisdiction of the states

in which they reside.97

In response to the authority of Congress to have enacted the Ute Partition

Act, the legislative history of that law, and how this Court has interpreted the

termination language contained in §677v, Hackford essentially makes three

96 See United States v. Burland, 441 F.2d 1199, fn. 4 (9th Cir. 1971)(collectingstatues).

97 See also South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986)(civiljurisdiction); Latender v. Israel, 584 F.2d 817 (7th Cir. 1978)(civil jurisdiction); Burland,441 F.2d at 1199(criminal jurisdiction).

23


arguments. First, he claims that the Ute Partition Act is no longer the law because

Congress has abandoned its termination policy of the 1950s when that law and

similar termination laws were enacted. While “termination” may no longer be

Congress’ official “Indian” policy, the Ute Partition Act still remains the law with

respect to Mix-Blood Utes such as Hackford.

This is obviously so because with respect to other terminated tribes, on a

tribe by tribe basis, Congress has enacted specific legislation restoring Indian

status to a few tribes and/or to their members.98 Congress, however, has chosen

not to do so with respect to the Mixed-Blood Utes. Thus, Congress could restore

Hackford’s Indian status but it has not done so, which means that he is a non-

Indian for purposes of the State’s civil and criminal jurisdiction.

Hackford’s second argument is premised upon the fact that because he is of

Indian ancestry, like untold millions of Americans, shares in tribal assets and

enjoys certain treaty rights, he is an Indian. Hackford attempts to support this

argument by a misreading of several Tenth Circuit decisions. Hackford, for

98 See, e.g.,25 USCS§§ 566 et. seq. (Klamath Tribe Restoration Act); 25 USCS§§715 et. seq. (Coquille Tribe Restoration Act); 25 USCS§§ 566 et. seq. (Klamath TribeRestoration Act); 25 USCS§§ 903 et. seq. (Menominee Tribe of Wisconsin RestorationAct). This legislation has also been omitted from West’s on-line U.S.C.A., but isavailable in print versions of both the U.S.C.A. and U.S.C.S.

24


example, argues that based upon Hackford v. Babbitt,99 and United States v.

Felter,100 Mixed-Bloods are still “Indians.” But Hackford misreads these cases.

In both Babbitt and Felter, the issue was whether Mixed-Bloods like

Hackford still retained rights in tribal assets or otherwise enjoyed treaty rights, and

they do. The Ute Partition Act specifically preserved the Mixed-Bloods’ interest

in indivisible property because that property could not be distributed to them,101

and their treaty rights were not extinguished because the Ute Partition Act was

only applicable to the protections accorded to Indians under “statutes of the United

States,” and treaties are not statutes.”102 Hackford’s interest in tribal assets and

treaty rights, therefore, have nothing to do with his being of Indian status.103

99 14 F.3d 1457 (10th Cir. 1994).

100 752 F.2d 1505 (10th Cir. 1985).

101 The divisible assets such as land and trust funds, were divided and theterminated Mixed-Blood were given their share. Whereas, the indivisible assetsconsisting of oil and mineral rights, as well as unadjudicated or unliquidated claims,remained in trust and are jointly managed by the Tribal Business Committee andrepresentatives of the Mixed-Bloods. See Ute Distribution Corp. v. United States, 938F.2d 1157, 1159 (10th Cir. 1991). See also, Babbitt, 14 F.3d at 1462.

102 See Felter, 752 F.2d at 1507-08.

103 It should likewise be noted that in addition to continuing to share in some tribalassets, Mixed-Blood Utes like Hackford were given property upon the termination oftheir Indian status; in other words, they chose to receive property in exchange for thevoluntary surrender of continued Federal supervision and protection.

25


Moreover, under Hackford’s interpretation of the Ute Partition Act, all of the

Mixed-Bloods would remain under federal supervision because they, too, share in

these same benefits, which is nonsensical. Congress clearly intended to terminate

the Indian status of the Mixed-Blood Utes with its passage of the Ute Partition

Act.

Hackford likewise attempts to bolster his Indian status argument by

cobbling together the holdings from other Circuits and the Tenth Circuit case of

United States v. Prentis,104 which put forth a test under 18 U.S.C. § 1153,

otherwise known as the “Major Crimes Act”, for “Indian status” for the purpose of

defining the exclusive federal criminal jurisdiction over certain “major” crimes by

Indians committed within Indian Country. Whereas, the Major Crimes Act only

applies to certain felony offenses, not traffic violations,105 which makes his

argument based upon this decision irrelevant.

In addition, the Major Crimes Act cases cited by Hackford essentially hold

that there is a federal common law test for “Indian” for determining whether a

person is subject to the exclusive federal criminal jurisdiction provided by § 1153

104 273 F.3d 1277(10th Cir. 2001).

105 See 18 U.S.C. § 1153.

26


and that test is: (1) the defendant must have some Indian blood; AND (2) he or she

is recognized as an Indian by a tribe or the federal government.106 Hackford,

however, cannot meet the second prong of this test because it is undisputed that he

is not a member of a federally recognized tribe, and the fact that he and other

Mixed-Bloods may enjoy certain treaty rights and indirectly share in certain

indivisible tribal assets most certainly does not amount to federal recognition of

his or their so-called Indian status. Furthermore, it is respectfully submitted that

for this Court to hold otherwise would not only be contrary to the clearly

expressed intent of Congress, but would exceed the limits of its authority to

review Congress’ exercise of its plenary power over Indians and their affairs,

which is to give effect to Congress’ intrusion into a tribe or its member’s lives.107

The final argument advanced by Hackford is that the Ute Partition Act is

unconstitutional. Hackford asserts that the Ute Partition Act violates the equal

protection provision of the Fifth Amendment to the United States Constitution

because it singles out Mixed-Bloods for special treatment. However, Hackford

never challenged the constitutionality of the Ute Partition Act in his Complaint in

106 Id. at 1280.

107 See Babbitt, 53 F.3d at 1150.

27


this case,108 or in his Complaint in the prior case.109 That issue, therefore, is not

before this Court.

Similarly, Hackford never served the Attorney General of the United States

with the requisite notice that he was challenging the constitutionality of the Ute

Partition Act.110 Hackford’s equal protection challenge to the Ute Partition Act

was likewise was not addressed by the District Court, which means that he has

waived that issue.111 The Court should also not address Hackford’s challenge to

the constitutionality of the Ute Partition Act because he failed to notify the

Attorney General of that matter.112 It would likewise be inappropriate for the

Court to delve into the constitutionality of that law when: the Ute Tribe and other

108 See Complaint, Supp. App. 187.

109 See Complaint, Supp. App. 1.


111 See Campbell v. City of Spencer, 777 F.3d 1073, 1080 (10th Cir. 2014)(Anappellant waives an argument if he or she fails to raise it in the district court and fails toargue for plain error on appeal).

112 See Jones v. U-Haul Co. Of Massachusetts & Ohio, Inc., 16 F.Supp.3d 922,941 (S.D. Ohio 2014)(Failure to provide the mandatory notice to the Attorney General);Pierson V. Rogow, 2019 WL 1112293 at *7 (S.D. Fla. 2019)(same).

28


Mixed Blood Utes are not parties;113 members of the Ute Tribe, including those

who would become the Mixed-Bloods not only drafted the Ute Partition Act, but

also asked Congress to enact that law; and for this Court to strike down the Ute

Partition Act would subject all of the Mixed-Bloods to the jurisdiction of the Ute

Tribe whose powers over them are unfettered by the Constitution,114 which may be

something that they do not want. But the Court will never know this for a fact

because the other Mixed-Bloods are not parties.

More importantly, in United States v. Murdock,115 and Ute Indian Tribe of

the Uintah & Ouray Reservation v. Probst,116 this Court found that the Ute

Partition Act did not violate either the due process or equal protection provisions

of the Fifth Amendment.117 Hackford does not even reference Probst, which held

that “the classification into two groups [Mixed-Blood and Full-Blood] was

113 See Singleton v. Wulff, 426 U.S. 106, 113(1976)(“Federal courts must hesitatebefore resolving controversy, even one within their constitutional power to resolve, on thebasis of rights of third parties not parties to the litigation”).

114 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56(1978)(Those personssubject to the governmental authority of a Indian tribe enjoy none of the protections of theBill of Rights or the Fourteenth Amendment).

115 132 F.3d 534(10th Cir. 1997).

116 428 F.2d 491(10th Cir. 1970).

117 132 F.3d at 541-42.

29


supported by the Indians, was relevant to the purposes of the legislation, and had a

reasonable basis.”118 The Probst Court specifically found “no arbitrary or

capricious discrimination” in violation of the Fifth Amendment’s due process or

equal protection.119 Hackford, however, does address Murdock.

Hackford contends that the Murdock is not controlling with respect to the

constitutionality of the Ute Partition Act. Hackford argues that Murdock is of not

stare decisis or of even precedential value because the Court in that case never

undertook an equal protection analysis as to why the Mixed-Bloods were treated

differently from the Full-Bloods in terms of State jurisdiction over the former but

not the latter. Yet, that is not so.

In Murdock the defendant, who was the descendant of a Mixed-Blood Ute,

was challenging his conviction, through a plea of nolo contendere, of illegally

hunting and/or fishing on the Ute Reservation. The ultimate ruling was that

because of §677v he was a non-Indian so as to be subject to the charges for which

he was convicted. Moreover, as the following language shows, the Murdock

Court arrived at its conclusion that the Ute Partition Act, which it referred to as

118 428 F.2d at 498.

119 Id.

30


the “Ute Termination Act” or “UTA”, was constitutional by reviewing the

rationale underlying Congress’ passage of §677v:

The purpose of the UTA was to end federal supervisionover the Ute Tribe. In pursuit of that goal, Congress determinedthat not all Tribal members were similarly situated with respect totheir ability to manage their own affairs. Accordingly, Congressdivided the Tribe into two classes, one whose members Congresshad reason to believe were approaching the point at which federalsupervision over them could be ended, and one whose memberswere not. This classification was part of a statute in whichCongress dealt with the Tribe as a Tribe.120

The Murdock Court, therefore, clearly undertook the equal protection

analysis that Hackford claims is missing. And this Court is not empowered to do

as Hackford requests, which is to strike down the Ute Partition Act because he

believes that Congress has rejected it and is no longer pursuing a termination

policy towards Indian tribes.

The policy that Congress has pursued or intends to pursue with respect to

the status of a particular Indian tribe and it members is a nonjusticiable political

question not subject to judicial review121 and, this is especially so when, as

120 Id.

121 See National Indian Youth Council, Intermountain Indian School Chapter v.Bruce, 485 F.2d 97, 99 (10th Cir. 1973)(Because of Congress’ plenary authority overIndians and all of their tribal relations, determining the status of Indian tribes presents anonjusticiable political question).

31


previously shown, Congress can and has restored Indian status to terminated tribes

or members thereof, but has elected not to do so in the case of the Mixed-Blood

Utes.122 Simply put, the Ute Partition Act is presumed to be constitutional,123 and

Hackford has the burden to show otherwise,124 which he has not done. Nor should

this Court address the constitutionality of the Ute Partition Act when there are

multiple grounds on which to affirm the District Court’s ruling,125 including not

only those addressed herein above, but also res judicata and collateral estoppel.

122 Restoring Mixed-Blood Utes to their former Indian status would certainly beproblematic because they were given a portion of the Reservation land and other divisibleassets almost 70 years ago. It is doubtful that the Full-Blood Utes still under federalsupervision want to bring the Mixed-Bloods back as full members of the Ute Tribe andthereby restore their right to property of the Ute Tribe, which may explain why, in theprior case, the Ute Tribe took the position that Hackford was not an Indian. See OrderRe: Motion for Preliminary Injunction, Supp. App. at 178, ¶6. There is no way for theCourt to know that for sure since the Tribe is not a party. However, it is safe to assumethat the Ute Tribe would oppose Hackford’s efforts to do away with the Ute Partition Act,since the Tribe has preemptively acted to prohibit Mixed-Bloods from regaining tribalmembership. See Chapoose, 607 F.Supp. at 1027.

123 See United States v. Plotts, 347 F.3d 873, 877 (10th Cir. 2003).

124 Branson v. O.F. Mossberg & Sons, Inc. 221 F.3d 1064, 1065(8th Cir. 2000).

125 See Escambia County v. McMillian, 466 U.S. 48, 51(1984)(“[N]ormally theCourt will not decide a constitutional question if there is some other ground upon whichto dispose of the case”).

32


ARGUMENT: HACKFORD’S CLAIMS AREBARRED BY COLLATERAL ESTOPPEL

When, as in the instant case, there is a record sufficient to permit it to do so,

this Court can affirm the District Court on other grounds,126 such as Hackford’s

claims being barred by the doctrines of res judicata and/or collateral estoppel.127

In an earlier 2014 case, Hackford challenged the State of Utah’s jurisdiction over

him for traffic violations in Wasatch County involving speeding and the lack of

insurance.128 In that case, Hackford also moved for a preliminary injunction to stop

the State of Utah from prosecuting him. The District Court, however, found that

126 See Sandoval, 29 F.3d at 542 fn. 6.

127 The 2014 decision would trigger the doctrine of res judicata as betweenHackford and the State of Utah since not only is the issue of Hackford’s alleged Indianstatus the same but so are the parties: Hackford and the State Appellees. With respect toUintah Appellees, the applicable doctrine would be collateral estoppel, which does notdepend upon whether the claims for relief are the same or the parties being the same. Thecritical question is whether the issue that was actually litigated in the first suit wasessential to resolution of that suit and is the same factual issue as that raised in the secondsuit? See Atiya v. Salt Lake County, 988 F.2d 1013, 1020 (10th Cir. 1993). The 2014case and the instant case involve the same factual issue: Hackford’s status as a non-Indian, which was decided in 2014.

128 The 2014 action was later consolidated (Dkt. 13) with Case No. 2:75-cv-00408. As a general rule, matters outside of the pleadings are not to be considered by the Court inruling on a Motion to Dismiss, but there is an exception for matters of public record. TheCourt may consider matters of public records in deciding a Motion to Dismiss withoutconverting the Motion to one for summary judgment. Lynch v. Leis, 382 F.3d 642, 648fn. 5 (6th Cir. 2001).

33


not only had the traffic offenses occurred outside of Indian Country but, more

importantly, the District Court specifically found that “even if the site of the

offense was in fact Indian Country according to federal law, Mr. Hackford, despite

his clam to be of Indian heritage, is not an Indian so as to be beyond the criminal

jurisdiction of the State and/or Wasatch County.”129

Based upon those findings, the District Court denied Hackford’s Motion for

a Preliminary Injunction,130 and dismissed Hackford’s Complaint for declaratory

and injunctive relief stating in its Order of Dismissal that: “Mr. Hackford is not a

member of a federally recognized Indian tribe and based upon 25 U.S.C. § 677v,

the laws of Utah apply to him.”131 Given the clear language contained in the

Order about Hackford not being an Indian and, therefore, subject to the criminal

jurisdiction of the State of Utah, there is no doubt that his Indian status was

affirmed in the 2014 action.

Nor is there any doubt about Hackford having fully litigated this issue in

2014. Hackford, for instance, asked the District Court to reconsider its ruling and,

129 Order Re: Motion for Preliminary Injunction, Supp. App. at 179, ¶ 8.

130 Id.

131 Id.

34


following a hearing, that Motion was denied.132 Relying on the District Court’s

decision in Hackford v. State,133 Uintah Appellees raised both res judicata and

collateral estoppel as affirmative defenses.134

Thereafter, State Appellees and Uintah Appellees separately moved to

dismiss Hackford’s Complaint based upon both §677v of the Ute Partition Act and

the doctrines of res judicata and collateral estoppel.135 In its Order granting

Appellees’ Motions to Dismiss, the District Court essentially found that “Mr.

Hackford has clearly already had his day in court” with respect to his claim of not

being subject to State jurisdiction based upon his purported Indian status.136 The

District Court declined to include either res judicata or collateral estoppel as

additional reasons to dismiss Hackford’s Complaint because of Garcia v. Int’l

Elevator Co.,137 which the District Court reasoned required res judicata and

collateral estoppel to be decided in the context of a Motion for Summary Judgment

132 Order Re: Motion to Reconsider, Supp. App. 183.

133 2015 WL 4717639 (D. Utah Aug. 7, 2015).



136 See Order, Supp. App. p. 312, fn. 2.

137 358 F.3d 777, 782 (10th Cir. 2004).

35


rather than a Motion to Dismiss138 opting instead, to dismiss Hackford’s Complaint

based upon his non-Indian status under §677v of the Ute Partition Act.139

The Uintah Appellees submit that the District Court’s reading of Garcia was

much too restrictive. The Uintah Appellees submit that Garcia should not be read

as imposing a blanket prohibition against District Court’s deciding the issue of res

judicata or collateral estoppel on a Motion to Dismiss. Rather, whether to grant a

Motion to Dismiss based upon the res judicata or collateral estoppel effect of a

prior judgment should be decided on a case-by-case basis and, under this

approach, the Court should affirm the District Court on the basis of the issue of

Hackford’s alleged Indian status having already been decided.

In Garcia, for example, the defendant asked the Court to affirm the District

Court’s grant of a Motion to Dismiss based on alternative grounds of res judicata

and/or collateral estoppel, which the Court refused to do. Instead, the Garcia

Court counseled that the applicability of these defenses would be best decided in

the context of a Motion for Summary Judgment because: (1) there was an issue

about the defendant having waived these defenses, and (2) in order to determine

138 Order, Supp. App. p. 312, fn. 2.

139 Id. pp. 313-315, ¶¶ 8-16.

36


whether res judicata or collateral estoppel barred the plaintiff’s claims would rest

upon the record in a prior state court proceeding. Neither of the reasons voiced by

the Garcia Court apply to the present situation.

For instance, in this case the Appellees did not waive res judicata or

collateral estoppel, and the Court would be deciding the issue of res judicata

and/or collateral estoppel based upon its record, which is subject to judicial notice

both at the trial court,140 and appellate court level.141 Moreover, there is no blanket

prohibition against deciding issues of res judicata or collateral estoppel by a

Motion to Dismiss.142 And by acknowledging that Hackford “has clearly already

had his day in court on these claims” the District Court essentially found that his

assertion of Indian status and the lack of state jurisdiction over him had been

decided in the 2014 action.

140 Aloe Creme Laboratories, Inc. v. Francine Co., Inc., 425 F.2d 1295(5th Cir.1970)(“The District Court clearly had the right to take judicial notice of its own files andrecords and it had no duty to grind the same corn a second time. Once was sufficient”).

141 United States v. Moreno, 579 F.2d 371 (5th Cir. 1978)(Taking judicial noticeof prior decisions regarding character of a particular border crossing); Rothman v.Gregor, 220 F.3d 81, 91-92(2nd Cir. 2000)(Taking judicial notice of Complaint onMotion to Dismiss because it was a matter of public record).

142 See Mehlar Corporation v. City of St. Louis, Missouri, 530 F.Supp. 85 (E.D.Mo. 1981). See also Stanton v. District of Columbia Court of Appeals, 127 F.3d 72, 76-77(D.C. Cir. 1997).

37


Hackford makes a simple argument in opposition to application of the

defense of res judicata and/or collateral estoppel and it is based upon his appeal of

the 2014 action, which this Court affirmed on the basis of the site of the offense

having not been in Indian Country. In doing so, the Hackford Court noted that the

District Court had also found Hackford was not an Indian, but declined to reach

this issue because of its determination that the offense occurred outside of Indian

County and that finding alone was sufficient to establish the State’s jurisdiction.

According to Hackford, because this Court did not reach the issue of his

Indian status in the 2014 case, neither res judicata nor collateral estoppel apply.

But the Tenth Circuit’s failure to address Hackford’s non-Indian status does not

affect the District Court’s finding of Hackford’s non-Indian status for purposes of

either the res judicata or collateral estoppel.

Hackford also offers no clear authority to support his claim that a judgment

is not final for purposes of res judicata or collateral estoppel unless there has been

complete appellate review of the lower court’s decision. Nor can he provide such

authority since issue preclusion bars successive litigation of “an issue of fact of

law” that has actually been litigated and determined by a valid final judgment.143 If

143 Bobby v. Bies, 556 U.S. 825, 834 (2009).

38


the issue was litigated, a lower court judgment has preclusive effect despite the

lack of appellate review.144 And collateral estoppel even applies to a second action

involving the same issue even though appeal of the first lawsuit was dismissed.145

CONCLUSION

Is Hackford an Indian or non-Indian? Based upon the legislative and

decisional history of the Ute Partition Act, the answer is clear: He and other

Mixed-Bloods are non-Indian and, therefore, subject to the civil and criminal

jurisdiction the State and County. Any doubts about this fact are laid to rest by a

review of the Transcript of a July 16, 1954 hearing before the House of

Representatives’ Subcommittee on Indian Affairs to make final amendments to

Senate Bill No. 3532, which would become the Ute Partition Act.146

This transcript shows that Senate Bill 3532 was prepared and submitted by

the members of the Ute Tribe. More importantly, this transcript records that the

purpose of that law was to provide for the “termination of what is known as the

144 See Atiya, 988 F.2d at 1020(Lower court judgment had preclusive effectdespite lack of appellate review).

145 Martin v. Department of Justice, 488 F.3d 446, 455 (D.C. Cir. 2007).

146 Hearing H.R. Rep. Subcommittee on Indian Affairs, 83rd Cong. July 16,1954 at p. 2. A copy of that Transcript is included in the Addendum to this Brief asExhibit E.

39


mixed blood groups” because “they have been well educated, well cultured,

and they are doing well economically, and they are very much in advance of

the other groups, known as the full blood groups on the reservation.”147

For the reasons set forth herein above, Uintah Appellees respectfully

request this Court affirm the District Court’s decisions that are the subject of

Hackford’s appeal, including the denial of Hackford’s requests for declaratory and

injunctive relief and the dismissal of his Complaint with prejudice.

STATEMENT OF COUNSEL AS TO ORAL ARGUMENT

Uintah Appellees submit that oral argument is not required because the

issues presented on appeal are simple, because the facts necessary to resolve those

issues are undisputed, and because the controlling law is clear with respect to

Hackford’s status as a non-Indian, the constitutionality of the Ute Partition Act,

and Hackford’s claims being barred by the doctrines of res judicata and/or

collateral estoppel.

147 Id. p. 2(emphasis added). The success of the Mixed-Bloods, coupled with thefact that they were given their share of the Tribe’s divisible assets, may explain whyCongress has not restored the Indian status of the Mixed-Bloods.

40


Dated this 21st day of February, 2020.

SUITTER AXLAND, PLLC

By: /s/ jesse c. trentadue Jesse C. TrentadueAttorneys for Uintah Appellees

41


CERTIFICATE OF COMPLIANCE

Section 1. Word Count

As required by Fed. R. App. P. 32(a)(7)(c), I certify that this brief is

proportionally spaced and contains 10,861 words.

Complete one of the following:

X I relied on my word processor to obtain the count and it is

WordPerfect X9.

I counted five characters per word, counting all characters including

citations and numerals.

Section 2. Line Count

My brief was prepared in a monospaced typeface and contains 1,162 lines of

text.

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.

/s/ jesse c. trentadue

42


CERTIFICATE OF DIGITAL SUBMISSIONand PRIVACY REDACTIONS

I hereby certify that a copy of the foregoing CORRECTED RESPONSIVE

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

the ESET Endpoint Antivirus 6.4.2014.0, updated daily and, according to the

program, is free of viruses. In addition, I certify that all required privacy

redactions have been made.


43


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21st day of February, 2020, I

electronically filed the foregoing corrected UINTAH APPELLEES’

RESPONSIVE BRIEF with the Clerk of the Court, which automatically

provided notice to the following parties:

Elizabeth a Shaffer, Esq. Elizabeth A. Shaffer PLLC 1960 Sidewinder DR #213 Park City, Utah 84060 Email: [email protected] for Richard Hackford

Stanford Purser, Esq.Utah Attorney General's Office 160 E 300 S 5th FloorPo Box 140857 Salt Lake City, Ut 84114-0857 Email: [email protected] for State of Utah


T:\7000\7663\20\APPELLATE BRIEF.wpd

44




ADDENDUM

45


E,XHIBIT A


Case 2:18-cv-0063L-CW Document 35 Filed 06/l-31L9 Page 1 of 5

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF UTAH


Ptaintiff,

vs.

THE STATE OF UTAH, et al.,

Defendants.

ORDER GRANTING DEFENDANTS'MOTIONS TO DISMISS

Case No. 2:18-cv-631

Judge Clark Waddoups

Before the court are the motions to dismiss by defendants the State of Utah; Gary

Herbert; and Sean D. Reyes (the "state Defendants") (ECF No. 20) and Uintah County, Utah;

Uintah County Attorney, Mark Thomas; and Deputy Uintah County Attorney Loren Anderson

(the'oCounty Defendants") (ECF No. 24), which seek to dismiss plaintiff Richard Douglas

Hackford's Complaint for Declaratory and Injunctive Relief. The motions have been fully

briefed, and the court heard oral argument on the same on June 5, 2019. Af the hearing, the court

granted the defendants' motions to dismiss. The court now issues the following order to

substantiate its oral ruling GRANTING defendants' motions to dismiss.

l. On an undisclosed date, Mr. Hackford, was cited for a traffic offense in Ballard,

Utah, by a member of the Uintah County Sheriff s Department. (ECF No. 2, atl7, Compl.)

2. On August 10, 2018 Mr. Hackford filed his complaint before this court in which

he alleges that the offense occurred within the Uintah Reservation, and that because he is an

Indian, Uintah County and the State of Utah do not have jurisdiction over him.

3. Mr. Hackford's complaint seeks an injunction prohibiting Defendants from

prosecuting this matter and declaratory relief stating: 1) that the Federal Court is the proper court


Case 2:18-cv-00631-CW Document 35 Filed 06/1-311-9 Page 2 of 5

to determine the question of his status as an Indian;2) that he is an Indian; and 3) that the Federal

Court is the proper court for jurisdiction.l

4. Mr. Hackford brought nearly identical claims before this court in2014,inan

action challenging a traffic citation he received in Wasatch County. The court denied Mr.

Hackford's claims and dismissed his case, finding that "Mr. Hackford, despite his claim to be of

Indian heritage, is not an Indian so as to be beyond the criminal jurisdiction of the State and/or

Wasatch Countyo" and that "Mr. Hackford is not an Indian, and the site of the offense was not

within Indian Country." Hacffordv. (Jtqh,No. 2:13-Cy-00276,2015 WL 4717639,at*2 (D.

Utah Aug. 7,2015), affd,845F.3d 1325 (10th Cir. 201D.2

5. Mr. Hackford appealed this ruling, and the Tenth Circuit upheld the dismissal on

the basis that the offense did not occur in Indian Country. Haclcford v. Utah,845 F.3d 1325

(1gth Cir. 2017), cert. denied,l38 S. Ct.206 (2017). The appellate court did not reach the issue

of whether Mr. Hackford was an Indian.

6. This country has a "deeply rooted" policy "of leaving Indians free from state

jurisdiction and control ." Rice v. Olson,324 U.S. 786,789 (1945) (citations omitted). As such,

'o'within Indian country, generally only the federal government or an Indian tribe may prosecute

Indians for criminal offenses."' Hackford,845 F.3d at 1327, cert. denied,l38 S. Ct.206 (2017)

(quoting Ute IndisnTribe of the Uintah & Ouray Reservationv. Utah (Ute VI),790 F.3d 1000,

I Mr. Hackford's prosecution in state court has been stayed pending the disposition of this action. Thus, the

Youngerabstentiondoctrineisnottriggered. SeeSw.AirAmbulance, Inc.v.CityofLasCruces,268F.3d1162,1 l781lgth Cir. 2001) (when a state court has "stayed its own proceedings in favor offederal resolution oftheissues," "an essential predicate to Younger abstention is absent: the presence of an ongoing state prosecution"

(emphasis in original) (citations omitted)). Moreover, because Mr. Hackford is not asking this court to stay the state

proCeedings, the Antllnjunction Act does not bar the court's resolution of this action. ^See

28 U.S.C. $ 2283' 2 Defendants argue that Mr. Hackford should be barred, under the doctrine of collateral estoppel, from raising his

current claims. While the court acknowledges that Mr. Hackford has clearly already had his day in court on these

claims, it declines to find, on a motion to dismiss, that he is collaterally estopped from raising those claims here.

Garciav. Int'l Elevator Co.,358F.3d777,782 (l}thCir.2004) ("Whether res judicata or collateral estoppel bars

this action in whole or part is more appropriately decided in the context of a motion for summary judgment than it is

in the context of a defendant's motion to dismiss." (citations omitted)).

2


Case 2:l-8-cv-00631-Cw Document 35 Filed 06/L3/19 Page 3 of 5

1003 (1Oth Cir. 2015)). "The Supreme Court has specifically held that'Congress has not granted

criminal jurisdiction to the State of Utah to try crimes committed by Indians in Indian Country."'

1d (quoting Hagenv. utah,5l0 u.s. 339,408 (1994).

7. Mr. Hackford asserts that the place of the alleged traffic offense, on or about the

intersection of 1000 North and 1500 East in Ballard, Utah, is in Indian Country. (ECF No. 2, at

'tTlT 10-l l, Compl.) Representatives of the defendants have stipulated to this fact. Id. at'J[ 13. On

a motion to dismiss, the court accepts that stipulation as true. See Schrock v. Wyeth, lnc.,727

F .3d 1273, 1280 ( 1 Oth Cir. 20 I 3). As such, for purposes of this order, Mr. Hackford has

established that the offense occurred within "Indian Country."

8. Under the Ute Partition Act, Mr. Hackford is a o'Mixed Blood" Ute Indian. (ECF

No. 2, at fl 15, Compl.) His Role Number is 142. Id.

9. Section 677v of the Ute Partition Act states that "[u]pon removal of Federal

restrictions on the property of each individual mixed-blood member of the tribe, the Secretary

shall publish in the Federal Register a proclamation declaring that the Federal trust relationship

to such individual is terminated. Thereafter, such individual shall not be entitled to any of the

services performed for Indians because of his status as an Indian. All statutes of the United .

States which affect Indians because of their status as Indians shall no longer be applicable to

such member over which supervision has been terminated, andthe laws of the several States

shall apply to such member in the same manner as they apply to other citizens within their

jurisdiction " 25 U.S.C. $ 677v (emphasis added).

10. On August 25,196l,the Secretary of the Interior published a proclamation

'odeclaring that the Federal trust relationship to such individual is terminated." ,See Termination

of Federal Supervision Over the Affairs of the Individual Mixed-Blood Members, 26 Fed. Reg.

J


Case 2:1-8-cv-00631--CW Document 35 Filed 06/1-311-9 Page 4 of 5

8042 (Aug. 25,l96L).

11. As such, under the clear and express language of the Ute Partition Act, Mr.

Hackford is subject to "the laws of the several States . . . in the same manner as they apply to

other citizens within their jurisdiction." See 25 U.S.C. $ 677v.

12. Mr. Hackford's claim that he is immune from state prosecution because he is an

Indian is expressly precluded by the Ute Partition Act and is therefore meritless.

13. This finding is consistent with the court's prior recognition that "despite his claim

to be of Indian heritage, [Mr. Hackford] is not an Indian so as to be beyond the criminal

jurisdiction of the State and/or Wasatch County." Haclcford,No. 2:13-CV-00276,2015 WL

4717639, at*2.

14. Because Mr. Hackford's claim is meritless, he cannot establish that he is

"substantially likely to succeed on the merits" of his claim. See New Mexico Dep't of Game &

Fish v. tJnited States Dep't of the Interior,854F.3d 1236,1246 (l}th Cir.2017). His claim for

an injunction therefore fails and must be dismissed. See Emps.' Ret. Sys. of R.I. v. Williams Cos.,

lnc.,889 F.3d 1153, ll61 (1Oth Cir.20l8) ("To survive amotionto dismiss, acomplaintmust

contain sufficient factual maffero accepted as true, to state a claim to relief that is plausible on its

face ;' (quoting ls hcroft v. Iqbal, 5 5 6 U.S. 662, 67 8 (2009)).

15. Moreover, because Mr. Hackford's claim that he is immune from state

prosecution because he is an Indian is meritless, the court determines that the declaratory

judgments he seeks would neither settle the controversy at issue (because there is no controversy

at issue) nor "serve a useful purpose in clarifying the legal relations at issue" (because there is no

legal relation at issue). Mid-Continent Cas. Co. v. Vill. qt Deer Creek Homeowners Ass'n, Inc.,

685 F.3d 977,980 (10th Cir. 2012). As such, it declines to hear Mr. Hackford's claims for

4


Case 2:18-cv-00631-CW Document 35 Filed 06/13/L9 Page 5 of 5

doalaratory reli.cf and ther.ofons drismteses tho samg, I d'

16. For the reasons stated herein, the motions to dismiss filed by the State Defendants

@CF No. 20) andthe County Defendants (ECF No. 24), are HEREBY GRANTED, and

Plaintiff s Complaint for Declaratory and Injunctive Relief is hereby DISMISSED WITH

PREJUDICE.

Dated thip 13th day of June,2019.

BY THE COURT

Clark WaddoupsUnited States District Judge

5


EXIIIBIT B


**** ***

All federal laws of a general and perma_nent nature arranged in accordance withthe section numbering of the UnitedStates Code and the supplementsthereto.

awyers Edition

25 USCSlndians

$S 371- 1300n-o2009

@'LexisNexis'


25 USCS 9677t

$ 677t. Water rightsNothing in rhis Act [25 USCS S$ 677 et seq.] shall abrogate any water rights of the hibeits members.(Aug.21, 1954, ch 1009, $ 21, 68 Stat. 877.)

$ 677u. Protection of minors, persons non compos mentis, and other members

$ 677v. Termination of Federal trust; publication; termination of Federal se.nices; ap.

plication of Federal and State laws

Uoon removal of Federal restrictions on the property of each individual mixed-blood memhr

of itt" ttiU", (he Secrerary shall publish in the Fcderal Register. a proclamation d.eclaring that

if,. p.a.toi rrusr r.elarioninip to such individual is telminated. Thereafter. such individual shall

not be entitled to any of the services performed for Indians because of his status as an Indian.

nfi rtutut"i of the Linited States whiih affect Indians because of their status as Indians shall

""'f""g"iirapplicable to such member ovel which.supervision has been terminated, and the

ta*s oT the sev6ral States shall apply to such member in the same manner as they apply to

othel citizens within thcir jurisdiction.(Aug. 27, 1954. ch 1009, $ 23. 68 Stat. 877.)

RESEARCH GUIDETexts:Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 3, Indian Tribes,

Indians, and Indian CountrY $ 3.02.

INTERPRETIVE NOTES AND DECISIONS

Hunting and fishing dghts of mixed-blood members ofUte Inclian Tribe were not directly extinguished through

operation of Ute Termination Act (25 USCS $S 677 et

seq.); individual mixed-blood Ute tribal members en-

rolied upon hnal mixed-blood role (and still living) are

thus entitled to hunting and fishing privileges within Ute

reservation equivalent to those afforded members of tnbe

as norv defined. United States v Felter (1982, DC Utah)

546 F Supp 1002, affd (1985, CAl0 Utah) 752 F2d 1505

Claims of mixed-blood Ute Indians ale dismissed

g 677w. Presentation of development program for full'blood group to eventually termi

nate Fed€ral suPervision

Wirhin rhree months after the date of enactment of this Act [enacted Aug. 27..1954f 'ftltl:ness committee ol the tribe representing the full-blood group thereol' shall DleseflI tu tttv

Secretary a development program crlculated t;;tt;;il; fr-.af<i;g the trihe ancl the members

thereof self--supporting, without any special -Government

assistance, with a view of eventually

terminating alf Federil supervision of the tribe and its members'

(Aug.27, 1954,ch1009,$24,68Stat.8i'7;qan.i,1g75,P.L.93-608,$l(15),88Stat'1969')

HISTORY; ANCILLARY LAWS AND DIRECTIVESAmendments:1975. Act Jan. 2, 1975, deieted "The tribal business committee, represen-tilrg the

rutt-utooa group shall, through the Secretary of the Interior, make a ttlll anct

In'DIANS

where Indians sought to invaliclate asset distribution plan

and formation of distribution corpolation developed to

assist in termination of govemment's trust relationship'

because (1) mixed-blood Utes had lost their status as

inji*. puituu'rt to 25 USCS $ 677v and (2) plaintiff

Ures, as membets olorganizalion which voled in favorot

plan 29 years .go, .oui,l not now cornphin-of.plantndirgrniroiion of

-corporation Maklt-rnado v Hodel (l9Et'

nd Utah) 683 F Supp 1322, affd rvithout op (1992' CA10

Utah) 977 F2d 596.

cornplete annu

expendltureS at

Citizenshil

in this Act Iof the Ur1954, ch l

Execution

5172, Rulcs ant

lt1 1954, ch

Frocedlgroups

any actiof ttagreement

SecretarY 13 aulhe

cl

RED L

[681. Per caPi'

The SecretarY offund on dePosit itimber and lumbeof the Act cf Ma'in Minnesota, antIndians of Minnt19521. Such paYt

Interior may prerdeposit in the TrtIndians, of Minndrawing 4(June 19,

per ce

1952, '

$ 682. PaymetNo money paidor claim of attol$$ 681-6831, thmay be plescrib[25 USCS $$ 6t(June 19, 1952,


E,XHIBIT C


Case 2:75-cv-00408-BSJ Document 897 Filed 08/07/1-5 Page 1of 9

FILED2015 AUG 7 PM 1:33CLERKU.S. DISTRICTCOURT

!

Jesse C. Trentadue (#4961)Britton R. Butterfield (#13158)

SUITTER AXLAND, PLLC8 East Broadway, Suite 200Salt Lake City, Utah 84111Tel: (801) s32-7300Fax: (801) [email protected]@[email protected] el d@s autah, comAttorneys for T4lasatch Countyo

Scott Sweat, and TJtler J, tserg

UNITED STATES DISTRICT COURTDISTRICT OF UTAH, CENTRAL DTVISION


Plaintiff,v

THE STATE OF UTAH, WASATCHCOIINTY, a Political subdivision of the State ofUtah, GARY HERBERT, inhis oapacity as

Govomor of Utah, SEAN D. REYES, in hiscapacity as Attomey General of Utah, SCOI*ISWEAT, in his capaoity as County Attorney forWasatch Cormty, and TYLER J. BERG, inhiscapacity as Assistant County Attorney WasatchCounty, Utah

Defendants.

ORDER RE: MOTION FORPRELIMINARY INJUNCTION

CONSOLIDATED CASES

Civil No. 2:7 5 -cv -0040i8

2:13-cv-002762:1,3-cv- 10702:14.cv-00644

Judge Bruce S. JenkinsMagistrate Judge Dustin B. Pead


Case 2:75-cv-0O408-BSJ Document 897 Filed 08/07/15 Page 2 of 9

On May 28,20l5,the above captioned case came on for ategularly

scheduled Final Pre-Trial Conference, also scheduled to be heard was Plaintiff

Richard Douglas Hackford's Motionfor Preliminary Injunctionby which he seeks

an Order from the Court enjoining the State of Utah and Wasatch County from

prosecuting him for violations of Utah State law.l Pursuant to that Motion,Nh.

Hackford is seeking an Order erry'oining the State and County from prosecuting

him for a traffic offense that allegedly occuned during January of 2'014 on State

Road 40 in Wasatch County, Utah between mile posts 44 and47 (hercafter referred

to as the 'osite of the offense").

Mr. Hackford was represented at the hearing byBlizabeth Shaffer. The

State of Utah appeared though Randy Hunter and Katharine Kinsmen, Wasatch

County, Wasatch CountyAttorney Scott Sweat and Deputy Wasatch County

Attomey Tyler J. Berg were represented by Jesse C. Trentadue. Uintah County was

represented by Blaine Rawson, with Uintah County Attorney G. Mark Thomas also

being in attendance as a representative of Uintah County. The Ute Indian Tribe of

I Doc.675.


Case 2:75-cv-OO4O8-BSJ Document 897 Filed 08/07/L5 Page 3 of 9

the Uintah and Ouray Reservation was represented by J. Preston Stieff, and Jeffrey

S. Rasmussen.

The Court having considered the Joint Pre-Trial Order filed by the parties,2

having reviewed the submissions by the parties and the arguments of counsel,

hereby enters the following Findings of Fact:

1. Based upon his alleged Indian status andlor the site of the

offense allegedly being within "Indian Country," Mr. Hackford contends thatthe

State of Utah and/or Wasatoh County, Utah lack the jurisdiction to prosecute him

for violations of State law. According to Mr. Hackford, he is only subject to the

criminal jurisdiction of the United States and not the State or Wasatch County.

2, Mr. Hackford admits in the Joint Pre-Trial Order that under the Ute

Partition Act (25 U.S.C. $ 677) he is identified on the Federal Register as a

"mixed-blood" Ute Indian with enrollment number 1,42.3 In this case, Mr.

Hackford basis his alleged Indian status on the fact of his being a "mixed'blood

tlte.'o

2 Doc.863.


Case 2:75-cv-OO408-BSJ Document 897 Filed 08/07/1-5 Page 4 of 9

3. Mr. Hackford likewise admits in the Joint Pre-Trial Order that by

a Presidential Proclamation dated August 3,19A5,4 land was withdrawn from the

Uintah lndian Reservation to be set apart for a reservoir site;s that by the Act of

April 4, L91.0,6 Congress specifically provided that with respect to this land

withdrawn from the Uintah Indian Reservation for use as a reservoir, o'A11 right,

title and interest of the Indians in the same lands are hereby extinguished and the

title, management and control thereof shall pass to the ownors of the lands inigated

from said proje cf. . . ;"7 and that the site of the offense was part of those lands that

had been withdrawn from ltro Uintah Indian Reservation and set aside for a

reservoir site.8

4. Mr. Hackford also admits in the Joint Pre-Trial Order that the

3 Id. arp,4,n6.a z4stat,it4t,s Doc.863, p. 5, tf 14.u 3d stat, 269,28s.7 Doc,863, p, 5, fl 15.8 Id. atp. 5, fl 16.


Case 2:75-cv-O0408-BSJ Document 897 Filed 08/07/L5 Page 5 of 9

section of Highway 40 constituting the site of the offense is under the ownership of

the United States, and under the administration of the United States Forest Service,

which is part of the United States Depaftment of Agriculture,e

5. In the Joint Pre-Trial Order, the parties agree that by the Act of

October 31, 1988,10 the land that had been withdrawn for a reservoir site, including

the site of the offense, was included into and made apart of the Uinta National

Forest.li Mr. Hackford contends, therefore,thatbecause it is part of the Uinta

National Forest, the site of the offense is now Indian County beyond the criminal

jurisdiction of the State andlor Wasatch County.

6. The Ute Tribe contends that the site of the offense was not within

"Indian Country''as that term is defined by federal law. The IJte Tribe likewise

contends that Mr. Hackford is not an "Indian" as that term is definedby federal

law. It is the Ute Tribeos position, therefore,th.atMr. Hackford is subject to the

jurisdiction of the State of Utah and Wasatch County.

7. The Court finds that the site of the offense ceased to be part of Indian

e Id, atp. 6, J[ 18.to 102 stat.2826.11 Doc.863, p. 5, fl 17


Case 2:75-cv-00408-BSJ Document 897 Filed 08/07/15 Page 6 of 9

County when it was withdrawn from the Uintah Indian Reservation and set aside

for use as a reservoir, and that the status of this land did not change when it was

subsequently incorporated into the Uinta National Forest. The Court, however,

confines its findings of non-Indian Country status to the site of the offense and

does not make any findings as to whether all of the lands withdrawn from the

Uintah Indian Reservation and set a part for a reservoir site are also no longer

Indian Country.

8. The Court further finds that even if the site of the offense was in fact

Indian Country according to federal law Mr. Hackford, despite his claim to be of

Indian heritage, is not an Indian so as to be beyond the oriminal jurisdiction of the

State and/or Wasatch County.

Based upon the forgoing Findings of Fact, the Court hereby enters the

following Conclustons of Law:

1. To escape the criminal jurisdicfion of the State andlor Wasatch

County, Mr. Hackford nlrst be both an Indian as that term is defined under federal

law, and the site of the offense mustbe within Indian Country; whereas Mr.


Case 2:75-cv-00408-BSJ Document 897 Filed 08/07/L5 Page 7 ol9

Hackford is not an Indian, and the site of the offense was not within Indian

Country.

2, In order to obtain the relief that he seeks, which is an Order fromthis

Court enjoining his prosecution by the State and/or Wasatch County, Mr. Hackford

must show a substantial likelihood of prevailing on the merits and that he has not

done nor, given the cu:rent state of the law, can he do so.

3. Insofar as Mr. Hackford's claims are essentially distinct from those of

the other parties to this consolidatP.as., the Court finds pursuant to Fed. R. Civ. P.

54(b) that tn-ere is no just reason for delay in the entry of a final judgment with

respect to Mr. Hackford's claims so as to make the Court's decision immediately

appealable upon entry of that judgment.

Based upon the Findings of Fact and Conclusions of Law set forth herein

above:

1. IT IS FTEREBY ORDERED ADJUDGED AND DECREED thAt MT.

Hackford' s Motion for A Preliminary Iniunction is DENIED, 12

2, IT IS FURTHER ORDERED, ADJUDGED ANID DECREED thAt

12 Doc,675.


Case 2:75-cv-0O408-BSJ Document 897 Filed 08/07/1-5 Page 8 of 9

Mr. Hackford's Complaintfor Declaratory and Injunctive relief is DISMISSED

WITH PREJTIDICE,'U

3. IT IS FURTHER ORDERED, ADJUDGED AND DECREED thAt bY

this Order the Court intends to dispose of and hereby does dispose of all of Mr.

Hackford's elaims on the merits, AND

4, IT IS FINALLY ORDERED, ADJUDGED AND DECREED thAt A

final judgment be entered in this matter pursuant to Fed. R. Civ. P. 54(b).

-{y1/DATED thisT day of August, 2015.

THE COI

ruo0 S.JUnited

T:\4 0 00\4 5 3 0\l 2 8\ORDER ON P RELIMINARY II'IJUNCTION.wp d

Court Judge

13 Doo.2.


Case 2:75-cv-00408-BSJ Document 897 Filed 08/07/15 Page 9 of 9

CERTIF'ICA OF'SERVICE

I hereby certify that on the 5th day of August, 2015, I served the foregoing dooument viae-mail upon the following individualst

Elizab ath A. Shaffer, Esq.Er,tzesnrH A. SHerrsR, PLLC2041 Sidewinder Drlve, Suite 2Park City, Utah 84060Attorneysfor Plaintiff

J. Preston Stioff, Esq.J. PRESTON Sffir'r'Law OrT tcns136 East South Temple, Suite 2400Salt Lake City, Utah 84111Attorneys for Ute Tribe

E. Blaine Rawson, Esq.GregoryJ. Savage, Esq.

Calvin R. Windor, Esq.Matthew M. Cannon, Esq.

Ray Quinney & Nebeker36 South State Street, Suite 1400

P.O. Box 45385Salt Lake City, Utah 84145-0835Att orneys for Uintah County

Randy S. Hunter, Esq.Katharine H. Kinsman, Esq.

Bridget Romano, Esq.

Parker Douglas, Esq.Assistant Utah Attorney GeneralUtah State Capital350 Norlh State St., Ste. 230

Salt Lake City, UT 84114-2320Attorneys for the State of Utah, GaryHerbert and Sean Reyes

Jeffrey S. RasmusssenJeremy J. PattersonFrances C. BassettFnnoeRrcKs PnBsLes &MonceN, LLP1900 Plaza Dr.Louisville, CO 8AA27,23 1,4

Attorneys for Ute Tribe

/s/jesse c. trentadue


EXHIBIT T)


UNITED STATES CODEe@a,,a4m

/Verrpt,

B3rd Congress - Second Session

L954

Convened January 6o LgS4

I{ouse ddjournecl August 20, IgS4Senate ,Adjoumed December 2, IgS4

Volume 2REORGANIZATIOI\ PLANS

PITOCLA.IVT.A"TIOWS - EXECUT'IVE ORDERS

PRACTNCE RULES - LEGXSLATIVE T{ISTORY

St. Paul, xllintr,'West Pubiishine Co.

trooklyn, N. Ir.Edward Thonipson Co.


INDIANS-UTE TRIBE-ASSETS

confidence in the Ii'ederal Bureau of Investigation. This in turn mttst ln-evitably resnlt in diminished cooperation on the part of the American peo-p1e, ancl in turn in impaired Bureau eliciency in the pursuit of its manyfunctions.

Accordingly, there is attached for your consideration and appropriatereference, a draft proposal to amend title 18 of the United States Codeso as to require all pelsons to obtain the permission of the Director of thetr'ederal Bul'eau of Investigation before using that agency's name or initialIetters, or any colorable initation, in a way reasonably calculated to con-vey the irnpression that such use is approved, endorsed, or authorized bythe Bureau,

The Department will be pleased to supply tlte comrnittee to which thisproposal is referred with illustrative cases indicating the urgent need forits enactment,

The Buleau of the Buriget has advised that there is no objection to thesubmission of this reconmendation.

Sincerely,Efunnnnt BnorvNrrl, Jr.,

Attot'nell Getreral,.

INDIANS-UTE TRIBE_ASSETS_P.{IT.TITION ANDDISTR{BUTION

For tert ol Act see p.1010

Senate Beport No. 1632, .Iune 25, 1954 [To accompany S. 3532]

House Report No.2493, July 26, 1954 lTo accornpany S.35321

The l{ouse Eleport repeats in substance the Senate fteport.

House Report No. 2493aarQJrFIA fnmmittee on lrrterior and Insular Affairs, to.n'hom wasreferred the bill (S. 3532) to provide for the partitiorr and distribLrtionof the assets of the Ute Indiarr Tlibe of the Uintah ancl Ouray Reser-vation in Utah betrveen the mixed-blood and fullblood members thereof ;

and for the termination of Federal supervision over the propertyof the mi-red-blood rnernbers of said tribe; to provide a development pro-gram for the fullblood members of said tribe; and for other purposes,l-raving colrsidered the sarne, report favot'ably thereon ."vith amcndrnentsancl recomrnend that the bill do pass.

EXPLANATION OF TI_IE BILLS. 3532 is the result of proposals initiatcd by the Ute Tribe of Indians

in Utal.r. It provides for the partition and distribution of the assets ofthe reservation betrveen the mixed-blood and fullblood members of thetribe. The bill repre-sents a desire on the part of the Indians affectedto solve some of their basic problems through their orvn efforts in arealistic manner.

The Ute Tribe, of the Uintah and Ouray Reservation in Utah, con-sists of trvo distinct groups-the fullblood group and the mixed$loodgroup. The total membership of the tribe is now 1,765. Of this number,439 are defined as mixed-bloods and 1,326 as fullbloods. The r.rumber

of members having exactly one-half degree Ute Indian blood is 89.

3355


LEGISLATIVE HISTORY

This bill provides for the preparation of separate mixed-blood andfuliblood rolls, with a provision for transferring individual fullbloodmembers to the mixed-blood roll if they desire to be identified with thatgroup. As amended by the committee, S. 3532 defines ,,fullblood" asany member who possesses one-half degree of Ute Indian blood and atotal of Indian blood in excess of one-half, excepting those who becomemixed-bloods by choice. "Mixed-b1ood" is defined as any member whodoes not possess sufficient Indian or IJte Indian blood to fail within thefullblood class and those who become mixed-bloods by choice.

The action proposed by this bili will permit the mixedbloods to progresstoward termination of Federal supervision without being held back bythe fullbloods who desire continuation of wardship status. Accordingto testimony from members of the Ute Tribe, the majority of the mixed-blood group feel that they are ready for a termination of Federal super-vision over their property and the fullblood Indians believe that theyare not ready for such action.

Both the mixedblood and fullblood groups agree that their tribal assetsshould be divided between them. The mixedbloods propose a termina-tion program; the fullbloods propose to develop within 3 months afterthe enactment of this bill a program to prepare them for that termina-tion at a later date.

This proposed legislation involves the division of the following tribalassets:

In cash, of which $13,580,352 is in the Treasury of the Unit-ed States and $199,806 is in local depositories

In accounts receivableIn land, estimated on the basis of 980,000 acres at $b per

acre, excluding subsurface rights which are not to bedlvided 4,900,000

Total 20,702,885

An essential provision of the proposed iegislation is tl.re division betrveenthe two g'roups, on the basis of their relative numbers, of all tribal assets,except oil, gas, and mineral rights, and unadjudicated claims against theUnited States. These undivided assets will continue to be owned andadministered jointly by the trvo groups. The responsibility for makingthis division is on the Indians themselves, but if they fail to agree '"vith-in 12 months after the rol1s are completed, the Secretary of the Interioris authorized to make the division.

The distribution of the mixed-blood share of the tribal assets amongthe members of the group may include a distribution of all cash assetsof the group, and either the sale, partition, or conveyance of the landassets to a corporation, other legai entity, or a trustee; and providefor cash adjustments bet.lveen individuals when necessary to completea particular partition. The responsibility for making the distribution ofgroup assets is on the Indians, but if they fail to complete the job with-in 7 years from the date of the act, the Secretary of the Interior maymake the distribution in accordance r,vith his best judgment, or conveythe assets to a trustee for liquidation and distribution of net proceeds,or convey the assets to the persons entitled thereto as tenants in common-

3356

$ 13,7 8 0,15 e2,022,7 26

t

?

it

t


INDIANS_UTE TRIBE_ASSETS

This bill provides for a 7-year exemption from property taxes on

property distributed to members of the mixed-blood group, if the title

remains in the distributee.The enactment of the bill rvill permit the early termination of Fed-

eral supervision over approximately one-fourth of the members of the

Ut" Tiib., who have -advanced

culturaliy, socially, and economically

to the point where they do not need special Federal supervision and

service. At the same time it will permit the Bureau of L.rdian Affairs

to conce'trate on the remaining thiee-fourths of the members and help

them to develop a program suited to their needs'

The Secretary of ttre Interior recommends the enactment of this pro-

posed legislation'A copy of the report of the Secretary of the Interior' dated June 15'

1954, i; "tru.h.d

hereto and made a part of this report' as follows:

DnPanrrrnrqt oF TrrE fxtrnron'OrrrcP ol' THD Srcnrranr'

Waslt,itt'gtort, D' C', Jun'e 15' 1954'

FIon. Eluen J. Butr,rn'Ch'airrnan, Commi'ttee on Interior anil lrLsulor Affairs'

tl rt'i,te il' B tat es S ena'te,'W ashing t on, D' C'

Mv Dnen Snweron Barttt*, Reference ls macle to your request lor a

report on the commitiee print of S. 3532,-a bill to provide for the parti-

tion and distribution oi tire "ssets

of the ute Indian Tribe of the llintahandourayReservationinUtahbetweenthemixed.-btood'andfullbloodmembers ihereof ; and for the termination of Federal superi'ision over

th€ property and persons of the mixed-blood members of said tribe; to

Brovide a develoDmerrf p"ogro* for the fullbloocl members of said tribe;

and for other PurPoses."I recommend that the bill be enacted'The purpose of the bill is indicated by tts title' The bill was drafted

by the iribe and introduced. at the request of the tribe. It is an excellent

exampteofinitiativeandplanningonthepartofthelndians,andtheirefforts deserve commendation.

The tribe eonsists of two distinct groups: The fultblood group and the

mixed-bloodgrouB'Asusedbythistribeandasdefineclinthebill,full-blood. means any member who possesses more than one-half degree of Ute

i;;i"; blood, and mixed-blood means any member who possesses one-half

a;;;;; or teis of Ute Indian blood' The mixedblood group believes that

it*"_"_t"". are ready for a termination of Federal supervision over their

;;p.tt, and the fullllood group beliel'es that its members are not readv'

tiru rrriiuo" have thereforJ agreed to divide their tribal assets between

th€ two groups, to propose a terminal Brogram for the mixedblood group'

uoo to pl'opoiu a deveiopment Brogram for the fullblood group that willaccelerate the process of preliaring them for a termina'l program at a laLer

date,The essential provisions of the bill are:1. The preparaii; ;i separate mixeclblood and fullblootl rolls' with

a Brovision for transferring individual fullblood members to the mixed-

ur6oa roil if ilrey desire to become identifled with that group.

2. The immediate sale or exchange of certain lands that are surplus

to the needs of either group'-- i.- lrrru division betrveen the two groups, on the basis of their relative

ou*b"ra, of all tribal assets except oil, gas' and mineral rights' and un-

*a:"oi"uiua claims against the united states. These undivided assets willcontinue to be owned and administered jointly by the two groups' Tho

responsiuitityfornakingthisdivisionis^onthelndiansthemselr'es,butif they fail to agree within 14 months after the rol1s are completed the.secreta"yofthelnteriorisautlrorizedtomakethedivision.

3357


LEGISLATIVE HISTORY

1. Ttte distribution ol the mixedblood share of the tribal assets among

the members ot tne group. -This

clistribution may inclucle a distribution

of all cash assets of ttre group, ancl either the sale' partition' or convey-

ance of the land assets to- a Jorporalion, olher legal entity' or a trustee'

The rules for partition are statea in rletail, and provitle for cash-adjust-

ments between indivictuals when necessa.Iy to complete a particular par-

tition. The respo'sirriiiiv to" maliing the distribution of group assets is

on the Incliaus, but it ttrey fail to complete the iob within 7 years from

the clate of the act tne Secretary of the Interior may ma.ke the distribtttionin accorclance with his best judgment, or convey the assets to a trustee

for liquiclation and ilistribution of net proceerls, or convey the assets to

the persons entitted thereto as tenants in cornmon'S.Tlroterminationofrestrictionsoninrlividuallyorvnedpropertyof

the mixed-blood grouP.6. A ?-year exemption from property taxes on property distribut-od to

membersofthemixed-bloodgroup,ifthetitieremainsinthedistributee.7. The issttance of a series of proclamations as restrictions on the

property of incliviclual mixed-blood members are removed' Thereafter

such members will be entitled to none of the serviQes performed for In-

clians because of their tt"tot tu Indians, and' such members will be subject

io trr" .r*" state and F.ederal laws that apply to other citizens.8. The preparation by the fullblood group within 3 months after the

date of the act of a development program calculatetl to prepare the group

for a terminal program at a later date.Thobillwillinvolvethedivisionofthefollowingtribalassets(flgures

are as of December 28, 1953):In cash of which $13,580,352 is in the Treasury of the Unit- - . - -.'- "*JJ si"il.-t;algibs'8t6 is in local depositories " $13'780'159

In accotrnts receivabte ' 2'022'726

In lanrl, estimated on the basis of 980'000 acres at $5 per

acre, exclucling subsurface rights rvhich are not to be

divided

Total 20,702,886

Tho totai rnembership of the tribe is 1'?65' Of this number 439 fallwithin tire deflnition oi'mi-xed-btoocls and 1'326 fall within the definition

offullbloods'.fhe,'u*b",ofmemberslvhohaveexactlyone-halfdegreeUte Indian blood is 89.

Theerractmentoft]rebillwillpermittheearlyterminationof-I|ederalsupervision orr", npp.o*imately one-fonrth of the members of the tribe'who have aclvanced. culturally, socially, and economically to the point

where they do not neerl speciai Federal supervision ancl service' At the

sametirrroitrviilpermittheBrrreauoflnclianAftairsofthisDepartmentto concentrate on the remaining three-fourths of ttre members and help

them to d.evelop a program suited to their needs'

During the hearing on June 9,1954' a tribal delegate recommended'

an amenclment to the O"noitioot of "fullblood" ancl "mixed-blood" that

are-containedinsection2.Wehavenoobjectiontothoseamerrdmerrts'In aclclition, the foliowing additional amendments are recommended:--'o" prg"'r3, line 10, insert before the comma "sub.ject to such super-

vision ty ttre Secretary as is otherwise required by lalv"'.o,,pog"13'line].1,after.,therefrorn,'insert.,,afterdeductingth€

costs of administration,"'--o',Bu,gu13,Iineslgand20,delete,.maybeexperrcledbyoratlvanced

ty to itre respective groups" ancl insert in lieu thereof "shall be available

io" uOuuo.u to the tribe oi th" t"tp""tive groups' or for expenditure"''-'o" BuJ" 16, lines 2 to 4, delete ,.in the formation of any livestock, range

or irrigation corporations cleemed essential in the necessary distributlon

fr"r".toO"r;" and insert in lieu thereof "under secLious 13 and 14 of this

Act;".- On page 20, line 6, after "snc. 16.'' insert " (a) "'

3358

I

I


RED LAI(E RESERVATION

On pago 20, between llnes 24 antl 25' lnsert a new subsection (b) as

follows:"(b) Prior to the removal of restrictions in accordance with the pro-

visions of subsectior tainereot on land' owned by more than one person'

the secretartrritJJ-."noust of any of the owners, partition -the.tand.

and

issue to "uan

o*o*'-*o-"ttt"tt'itt"d pa'tent or deed for his individual

share, unless .oart o*o"" is a full-blood member of the tribe or other

Indian wllo owns trust or restricted property' in 'which eve[t a trust

patent or restrictJ deed stralt be issued. and such trust may be ter-

minated or such restrictions may be removed when the Secretary de-

termines that the need therefor no longer exists;"(2) upon request of any of the owners and a finding by the Sec-

retary that partition of all Lr any part of the land is not Bracticable'

cause all or any putt of the land to be solcl at not less than the aB-

praised value ttrei'eof and distribute the Broceeds of sale to the own-

irs; Prouid'ed, That before a sale any one or more of the ownerg may

elect to po."nuru-1tt" other interests in the land' or the tribe may

elect to purchass tii" ""1i"" interest in'the land' at not less than the

appraised value thereof."Since I am intormeJ i1to-i'trt"tu is a particular urgency for the submis-

sion of the views or'irtt'n"ptrtment, this report has not been cleared

through the .i.ureau oi tf'," guAs"t ancl, therefore' no commitment ca"n be

made eoncerning tne retationstiip of the views expressed herein to the

program of the President.SincereIY Yours, On'lm Lnvrs'

Assistant Seoet&ra of th,e Inter'ior

t

I

i

I

CHIPPEWAINDIANS-REDLAKERESERVATION-SALEOF TIMBER-PER CAPITA PAYMENT

For tert of Act see P. 1024

Senate Report No. 2210, Aug. 3, 1954 [To accornpany H'If' 3419]

House Report No. 1916, June 23, 1954 [To accompany H'[i' 3419]

The Senate Report repeats in substance the trIousc Report'

Senate ftePort No. 2210

6rtt" Committee on Interior and Insular Affairs, to rvhom rvas referrecl

ti-'"uitt(H.R.3419)toarttlrorizea$50percapitapayrrretrttonrembersoftl.re Reri Lake Band of chipperva Iticlians fromtl.re proceeds of the sale

of timber and lumber ot.t the Red Lake Reservation' I{inn'' having con-

sirleredtlresal-tre,fepol.tthereonwitl-rtlrerecommendationtlratitdoplsswithout atnenchlent.

This bill has been consiclcre<l by the comrnittee on Interior and Irrsular

Affair.s of the Ilouse; on June 23,1954, tl.rat committee submitted its report

(H. Rcpt. 1916), recomtnencling its passage, au<1 on July 6' 1954' it passed

thc I-Iouse.

Yorir comnlittee collcul's in the statenierrt of the House Comrnittee on

Irrterior anrl Insular ti?f"itt coucertriug this bill' as it appcars iri said

I'Iorrse RePort No' 1916'

Aftlilexplarraticrroftheptrr.poseofthisbilliscorrtainedinsaidl-IottseR;;";; No. 19i6 (rvhich report contains a report on this bill of the Secre-

3359


EXHIBIT E


I.fI.S

6-16- 5410 an

fnt and Ins

ll

s. 3532

fn re: Ute fndian Tribeof the Uintah and OuraYReservation in Utah

FRTDAY, JULY 16, 1954

House of Representatlves

Subconmittee on Indian Affalrs

of the

Connlttee on Interior and Insu-

lar Affairs

Washlngto[r D. C.

fire Subcommlttee met at l0 a.n., Ifonorable B. Y.

Berry (Chairrnan) presiding.

Mr. Berry. The next bill for consideration of the "

Cornmittee is S.3532, a bill to provide for the partltion

and distribution of the assets of the Ute Indlan Tribe

of the Uintah and Ouray Reservation in Utah' between the

mixed-blood ancl full-bloo<l nembers thereof ' and for the

terrninatlon of Federal supenrision ov€r the property of

the nixed-blood fndian members of the sald trlbe; to provlde

a developnent prograrn for the ful1-b1ood nembers of said

tribe, and for other purposest

_ - T!" sinrilar bills are H. R. 9398 and H. R. 9511.

Do you have a very short statement of explanationt

ltr. Abbott ?


2

.*'

!Ir. Abbott. Xr. Chai rtran, the his tory of the Klamath

Terninal Legislation --

Xr. Lee. No, this is a different bill'

Xr. Berry. No, this ls a differont bi1l.

ltr. Abbott. }Ir. Lee, I believe, ]fr. Chairnanr would

like to make a statenent on that.

. ltr. Bemy. May we have a statenent fron you?

llr. Lee. Yes.

I*Ir. Berry. We have held hearings on this bill.

ilr. Lee. The Cormnittee did hold exhaustive hearlngs

on it and I would like to point out for tlre record the Indiandld no t

Bureau^pfopaf€, the bill; this was pr€pared for the Indianst

and their attorneys and is fully agreed to by both groups.'

ft provides for the division of Uintah and Ouray

Indian Reservatlon and for the ternination of what is knonn

as the mixed blood groups on that reservatl.on. There are

approxinately four hundred-some-odd of the fndlans that have

been well educated, well cultured, and they are dolng well

econonically, and they arc very much in advance of the other

groups, known as the ful1 blood groups on the reservationr

which conpriss apnroxirnatel.y 1200 or 1300 of the flood blood

group.

lhis, as I sa1', originated with the Indians and it is

proposed that they wil,l have a complete physical separatlon

of assets and thatthe assets of the nixed-blood f,Toup would


3

be turned over to then and completely ternlnate our

supervision within a period of seven yeors.

llr, Berry. 0f the mixed blood?

llr. Loe. 0f the nixed-blood groupr

}{r. Berry. The d<ed-blood makes the roquest?

ilr. Lee. They rqaquest they be considered wlth tho

ful1-blood Broup.

Nr. DtLYart. Does the Departnent recomnend this

bilr ?

ilr. Lee. Yes, the Department reconnends the blll

very highly. t{e have'gone over it very garefully. There

is an amendment; the Indians proposed an auendment before

the Senate Cornnittee and the Senate Connittee, I thinkr.'

a5reed on the anendment, but through an oversight in re-

porting out the bi11, those anendnents were dropped out.

ft was a correctlon of the dafinition of the full-blood

group and I believe that llr. Abbott has the amendnentl

f think they were referred by the Senate Connittee.

lfr. Abbott. Nor I do not have then.

llr. Lee. f can explain the anendments. f do not

think I have copies of them with ne. I understand that

Senate Comnittee staff had sent tham overfor conslderatlon

here.


1

ft ts an arendnent that would sluply deflne as a full-blood Indlan any Indlan that had at least 50 per ccnt Utc

blood but had also, to be a full-blood Indl'an1 rlght lavc

50 per cent Ute blood and 50 per cent XavaJo bloodr rrd

they had agked that corrcctlon ln thelr dreftp and I tbtnl

11e Senets cortal.nly hed recolrended that; but lt rer droplrd

out lnadvertantly.

llr. DrEtart. llrc arendrent bofore ths Corrlttor deflnoa

full-blood ln (u) anC rlxed-blood ln (c).

l(r. Loe. Ttrat ls comect.

llr. IltErart. nrat should be ln the b111?

Xr. Lse. That ls correct and the Departrcnt has-rccol-

lended thoee arcndnents as guggested by the IH'be.

}(r. IlrErart. llr. fllklnsonr do you havc coplos of

arendr nts ?

ltr. lfllktnson. I do not have thclr llr. Chal,nan.

}{r. DrBrart. ltr. Chalrrnan, I love that the follorlng

languagc bc lnserted ln S. 3532 at the propor placel

"(b) rfull-bloodr leans a neuber of the trlbs who

poeaosses one-ha1f degree of Ute Indlan Blood and

a total of fndlan blood in excegs of onc-half; ex-

ceptlng those who becare nl.xed bloods by cholce undor

the provisl,ons of Sectlon 4 hereof .

\c) taixed-bloodr neans a nenber of the trlbe who

does not possess sufflcient Indlan or Ute fndian

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blood to fall wlthin the full-blood class as

hereln deflned, and those rho bccole rlxed-blood

by cholce undcr thc provlslons of $ectlon I heroof.r

l(r. Shuford. llr. Chalnanr that rould bc on PrSc 2r

llnc 6, follorlng (a) on psgt 2 undcr Scctlon 2r rad rould

bc ln aubecctlon (b) tnd tubttctlon (c) tn llncc I to 16

lncluglvc ? --

llr. DtDmrt. Tlrat lc corrcct'

f,r. Chafuun, I rovc the adoptlon of the arendrrnt.

Xr. Shuford. I gccond tlre rotlon.

;p. Berry. It has besn roYcd and sccoaded thet tho

arcndrentg ag read bc adopted. Tlrosc ln favor clgtttfy DV

seylng ""yen i oppottodr troo ttre rotlon prevallr..

Xr. DtBrart. Scctl.on 11, llnc 11r pagr 19r e

corroctlon rhlch ls rrdo ln Sectlon 8 and other acctl'onr

rhlch I ar sure was rcroly an ovorstght ln 0alllng to

rakc the correctl.on ln that sectlon,

llr. Berry. ltl.thout obJectlonr ths tochnlcal arendrcnt

wtl1 b ea$roved, l{hat ls the pleasure of the corrLttce rlth

respect to the bill?t{r. festland. l(r, Chalman, I nove that S. 3532

as anended be reported favorablY.

l(r. BerrXr. It has been loved and seconded tlptt

S. 3532 be reported favorably, as anendedr to the fu11

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Those ln favor of the ootlon say nayeit opposod rnotr'

tlre uotlon prevalls.

Ilre Chalr wlll cntcrtaln a lotlon to ltrblo f,. R.

9398, 6282 and 9$11f and ?31E.

!lr. Drbrart. llr. Chairranr I 3o loYc.

llr. Bcrrlr. ttooc ln favor of thc rotlonl rtgntly

by saylng t"y"" i opporsdrrno!

Ttrc lotion ptrnlls.(Ihcrorpon, thc conlttcc procecdsd to thc oo!!i{m'

atlon of othcr burlness.)

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Documents

Case No. 19-4093 UNITED STATES COURT OF APPEALS FOR THE … · 2020. 9. 10. · Case No. 19-4093 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT RICHARD DOUGLAS HACKFORD, Appellant/Plaintiff,