National Indian Law Library, Indian Law Bulletins, UTE INDIAN TRIBE v. STATE OF UTAH

(Cite as: 935 F.Supp. 1473)

Briefs and Other Related Documents

United States District Court,D. Utah,Central Division.

UTE INDIAN TRIBE, Plaintiff,

STATE OF UTAH, Defendant-in-Intervention,

and Duchesne County, a political subdivision of the State of Utah; Uintah County, a political subdivision of the State of Utah; Roosevelt City, a municipal corporation; and Duchesne City, a municipal corporation, Defendants.

No. 75-C-408J.

April 2, 1996.

*1479 Robert S. Thompson, III, Office of Legal Counsel, Ute Indian Tribe, Fort Duchesne, Utah, for Plaintiff, the Ute Indian Tribe.

John W. Andrews and Michael M. Quealy, Utah Attorney Generals Office, Salt Lake City, Utah, for Defendant-in-Intervention, the State of Utah.

Herbert Wm. Gillespie, Duchesne County Attorney, Roosevelt, Utah, for Defendant, Duchesne County.

Joann B. Stringham, Uintah County Attorney, Vernal, Utah, for Defendant, Uintah County.

Tom Tobin, Winner, SD, for Defendants, Duchesne and Uintah Counties.

Roland Uresk, Roosevelt, Utah, for Defendant Duchesne City.

Clark Allred, McKeachnie & Allred, Vernal, Utah, for Defendant Roosevelt City.

Lauren N. Soll, U.S. Department of Justice, Land and Resource Division, Washington, DC, for U.S. Department of Justice.

Joseph Anderson, Assistant U.S. Attorney, Midvale, Utah, United States of America as amicus curiae.

William McConkie, Office of Solicitor, U.S. Dept. of the Interior, Salt Lake City, Utah, for U.S. Department of the Interior.

MEMORANDUM OPINION AND ORDER

JENKINS, Senior District Judge.

On September 12, 1994, the above-captioned matter came on before this Court for a hearing on the merits. Robert S. Thompson, III, Esq., appeared on behalf of the plaintiff, the Ute Indian Tribe. John W. Andrews, Esq., and Michael M. Quealy, Esq., appeared on behalf of the State of Utah. Herbert Wm. Gillespie, Esq., Duchesne County Attorney, and Joann B. Stringham, Esq., Uintah County Attorney, accompanied by Tom Tobin, Esq., appeared on behalf of defendants Duchesne and Uintah Counties. Roland Uresk, Esq., appeared on behalf of defendant Duchesne City. Clark Allred, Esq., appeared on behalf of defendant Roosevelt City. Lauren N. Soll, Esq., United States Department of Justice, and Joseph Anderson, Esq., Assistant United States Attorney, appeared on behalf of the United States of America as amicus curiae, accompanied by William McConkie, Esq., United States Department of the Interior.

The pending motions revisit a subject explored in depth in this same litigation some time ago: the territorial extent of the Ute Indian Tribe's jurisdiction, at least as it may be delimited by the legal boundaries of the Uintah and Ouray Indian Reservation. That question was resolved among these parties by Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir.1985) (en banc), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986), resulting in a judgment that the Ute Indian Tribe now seeks to enforce in this court through entry of a permanent injunction. The State of Utah, defendants Duchesne and Uintah Counties, Duchesne City and defendant Roosevelt City (collectively, the “State and Local Defendants”), resist this, urging this court instead to disregard the Tenth Circuit's en banc ruling on appeal in this litigation in favor of redetermining the Ute reservation boundaries in light of the United States Supreme Court's more recent decision in Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994). These defendants have also moved to dissolve the Order, entered by this court pursuant to stipulation of the parties on September 2, 1992, (nunc pro tunc to August 3, 1992), which was designed to preserve (more or less) the jurisdictional status quo pending the determination of the Ute Indian Tribe's Renewed Motion for Injunctive Relief.^FN1

FN1. The September 2, 1992 Order was once modified “to allow the State and Local Defendants to prosecute felony crimes occurring on lands within the original boundaries of the Uintah Valley Reservation which are not ‘Indian Country’ as defined by 18 U.S.C. § 1151, et seq.” Order, dated May 2, 1994, at 1-2. “In making this modification,” however, this court was “not determining one way or another which lands may or may not constitute ‘Indian Country,’ ” and the Order was entered “without prejudice to any claims of the parties as to the effect of the decision of the United States Supreme Court in Hagen v. Utah, or as to which lands may or may not constitute ‘Indian Country.’ ” Id. at 2.

*1480 Background and Procedural History

As the Ute Indian Tribe explains in its brief, the promulgation in 1975 of the Ute Law and Order Code “raised immediate protests from the State of Utah and from the political subdivisions located within the original boundaries” of the Ute Reservation. Brief of Plaintiff Ute Indian Tribe in Opposition to Defendants' Motion to Dissolve Preliminary Injunction, filed July 15, 1994, at 2-3. “In the hope of establishing, once and for all, the exterior boundaries of the Reservation, and the geographic scope of the Tribe's jurisdiction, the Tribe filed [this] action for declaratory relief in this Court in 1975,” joining Duchesne County, Duchesne City and Roosevelt City as defendants. Id. at 3. The State of Utah intervened as a defendant and Uintah County was joined as a defendant by stipulation of the parties in the Pretrial Order. After conducting a trial on the merits and examining the pertinent legislation and historical materials in some detail, this court made an initial ruling defining the boundaries of the Uintah Valley Reservation and holding that the Uncompahgre Reservation had been disestablished. See Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072 (D.Utah 1981). That determination was affirmed in part and reversed in part by a three-judge panel of the Tenth Circuit (716 F.2d 1298 (10th Cir.1983)); the panel's decision in turn was affirmed in part and reversed in part on rehearing en banc (773 F.2d 1087 (10th Cir.1985)). The United States Supreme Court denied certiorari (479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986)), and the Tenth Circuit issued its mandate pursuant to the en banc ruling, which was docketed by the Clerk of this court on December 9, 1986. Notice of receipt of the mandate was mailed to all counsel of record.

In its en banc ruling, the Tenth Circuit held that the Uintah Valley Reservation, created by Executive Order in 1861 ^FN2 and confirmed by Act of Congress in 1864,^FN3 had not been diminished by congressional legislation enacted from 1902 through 1905 opening unallotted and unreserved lands on the Reservation to entry under the homestead and townsite laws, ^FN4 or by the inclusion of portions of the Reservation among lands withdrawn as national forest lands by Act of Congress and Presidential Proclamation in 1905.^FN5 773 F.2d at 1088-1090; see also id. at 1099-1100 (Seymour, Holloway, McKay & Logan, JJ., concurring). The Tenth Circuit likewise held that the Uncompahgre Reservation had not been diminished by allotment legislation enacted in 1894 and 1897, which restored its unallotted lands “to the public domain” and opened them “ ‘for location and entry under all the land laws of the United States; ....’ ” 773 F.2d at 1090-93 (quoting the Act of June 7, 1897, ch. 3, 30 Stat. 62, 87); see also id. at 1093-1099 (Seymour, Holloway, McKay & Logan, JJ., concurring).

FN2. Executive Order 38-1 (reprinted in 1 Charles Kappler, Indian Affairs: Laws and Treaties 900 (1904)).

FN3. Act of May 5, 1864, ch. 77, 13 Stat. 63.

FN4. See Act of May 27, 1902, ch. 888, 32 Stat. 263; J.Res. 31, 57th Cong., 1st Sess., 32 Stat. 744 (1902); Act of March 3, 1903, ch. 994, 32 Stat. 998; Act of April 21, 1904, ch. 1402, 33 Stat. 207; Act of March 3, 1905, ch. 1479, 33 Stat. 1069. (The complete text of this legislation is reprinted in Appendix A to this court's initial memorandum opinion. See 521 F.Supp. at 1167-1174.)

FN5. See Act of March 3, 1905, ch. 1479, 33 Stat. 1069; Proclamation of July 14, 1905, 34 Stat. 3116 (reprinted in 3 Charles Kappler, Indian Affairs: Laws and Treaties 602-605 (1913)).

The Tenth Circuit's en banc ruling closely followed the Supreme Court's decision in Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984), decided 18 months earlier. Writing for a unanimous Court in Solem, Justice Thurgood Marshall concluded that the 1908 Act,^FN6 which authorized and directed the Secretary of the Interior “to sell and dispose of all that portion of the Cheyenne River and Standing Rock Indian reservations ... lying and being within the following described boundaries, ...” when “read as a whole, does not present an explicit expression of congressional intent to diminish the *1481 Cheyenne River Sioux Reservation.” 465 U.S. at 476, 104 S.Ct. at 1169. Further, Solem held that “[n]either the Act of May 29, 1908, the circumstances surrounding its passage, nor subsequent events clearly established that the Act diminished the Cheyenne River Sioux Reservation.” 465 U.S. at 481, 104 S.Ct. at 1171. References in some sections of the 1908 Act to “the respective reservations thus diminished,” ^FN7 or to timber harvesting on the opened lands “only as long as the lands remain part of the public domain,” ^FN8 and even a few references in legislative materials to a “reduced reservation” or to “lands reserved for the use of the Indians on both reservations as diminished,” did not add up to a clear expression of congressional intent to diminish either reservation. Id. at 474-78, 104 S.Ct. at 1168-70. Importantly, the contemporary and subsequent legislative history of the opening of the Cheyenne River Reservation reflected ambiguities similar to those appearing in the record in Ute Indian Tribe: “examples pointing in both directions leave one with the distinct impression that subsequent Congresses had no clear view whether the opened territories were or were not still part of the Cheyenne River Reservation.” Id. at 479, 104 S.Ct. at 1170.

FN6. Act of May 29, 1908, ch. 218, § 1, 35 Stat. 460, 460-61.

FN7. Id. at § 2, 35 Stat. 461.

FN8. Id. at § 9, 35 Stat. 464.

Relying explicitly on Solem, the Tenth Circuit in Ute Indian Tribe reasoned:

The 1902 Act would have returned all surplus Uintah Reservation lands to the public domain if the Ute Tribe's consent could be obtained. That consent was never forthcoming. The Tribe refused all requests to give up their lands. As a result of the impasse, Congress passed additional legislation in 1903 and 1904 extending the time set for opening of the Reservation.... Finally, Congress passed the 1905 Act, opening the Reservation for non-Indian settlement under the homestead and townsite laws. This measure, which actually effected the opening of the Reservation, did not contain the public domain language used in the 1902 Act.

It is not possible to find that the series of congressional enactments summarized above revealed a “baseline purpose of disestablishment,” ... that carried through into the 1905 Act. To do so is inconsistent with the Supreme Court's longstanding directive, reiterated in Solem, that in the absence of “substantial and compelling evidence of a congressional intention to diminish Indian lands,” the courts' “traditional solicitude for the Indian tribes” must compel a finding that “the old reservation boundaries survived the opening.” [465 U.S. at 472,] 104 S.Ct. at 1167. It is impossible to draw disestablishment conclusions or inferences from these congressional statements.

An examination of the 1902-1905 series of congressional enactments with the proper “solicitude for the Indian tribes,” Solem, [465 U.S. at 472,] 104 S.Ct. at 1167, provides inferences against diminishment.... The strongest inference that is to be drawn from Congress' actions is that Congress wished surplus Uintah Reservation lands to be put to productive use....

773 F.2d at 1089 (citations omitted). “Congress' use of ‘homestead and township acts' language in the 1905 Act, as contrasted with its use of ‘public domain language’ in the 1902 Act,” the Tenth Circuit concluded, “is evidence of a clear retreat from any desire to effect a wholesale diminishment of the Reservation.” Id. (footnote omitted).

After requesting and receiving a brief from the Solicitor General of the United States concerning the issues presented (478 U.S. 1002, 106 S.Ct. 3291, 92 L.Ed.2d 707 (1986)), the United States Supreme Court denied certiorari on December 1, 1986. Utah v. Ute Indian Tribe, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986) (mem.).

The State of Utah, not content simply to abide by the Tenth Circuit's judgment in this action (in which it plainly had participated as a party), found opportunity to relitigate the boundary issue in three criminal actions commenced and prosecuted in its name in the Utah state courts. These cases, State of Utah v. Perank,^FN9 State of Utah v. *1482 Coando, ^FN10 and State of Utah v. Hagen,^FN11 arose in the Uintah Basin communities of Myton and Roosevelt and involved neither the Ute Indian Tribe nor any of its enrolled tribal members. In one of the three cases, State v. Perank, the Utah Supreme Court invited both the Ute Indian Tribe and the United States to file amicus curiae briefs, which both did.^FN12 In none of these cases was the Ute Tribe joined as a party.

FN9. 858 P.2d 927 (Utah 1992). In defending a state probation revocation proceeding in 1986, Clinton Perank raised the question of jurisdiction based upon the Ute Indian Tribe decision. Although “[a]ppellate jurisdiction would ordinarily lie with the Utah Court of Appeals,” the Perank opinion noted that “[b]ecause of the importance of the question presented, the Court of Appeals certified the case to this Court.” Perank, 858 P.2d at 930 n. 1.

FN10. 784 P.2d 1228, 1229 (Utah Ct.App.1989) (“The State argues that notwithstanding the Ute Indian Tribe decision, Roosevelt is not in Indian country....”), affirmed, 858 P.2d 926 (Utah 1992). In Coando, the Utah Supreme Court granted certiorari review “to determine whether that court correctly upheld the state's exercise of jurisdiction”-notwithstanding the fact that the Utah Court of Appeals did not reach either the “Indian country” issue or the question whether Coando was an enrolled tribal member-and affirmed Coando's conviction in light of State v. Perank, decided the same day, which held that Myton, Utah is not “Indian country.” Justice Durham noted that in doing so, “[w]e therefore affirm his conviction on grounds other than those upon which the court of appeals relied.” 858 P.2d at 927.

FN11. 802 P.2d 745, 747 (Utah Ct.App.1990) (“While we have not been acquainted with the precise arguments advanced by the state in Perank, we are hard-pressed to see how, given the Supremacy clause and the doctrine of collateral estoppel, our state courts could reach a contrary decision that would have any practical effect.”), reversed, 858 P.2d 925 (Utah 1992).

FN12. In the Perank opinion, the Utah Supreme Court noted that the Justice Department filed a copy of the brief originally filed in opposition to the petition for writ of certiorari in the Ute Indian Tribe case following the Tenth Circuit's 1985 en banc ruling. The brief filed by the Ute Tribe apparently addressed only the threshold question whether defendant Perank was an “Indian” for purposes of 18 U.S.C. § 1151. 858 P.2d at 930-31.

On July 17, 1992, the Utah Supreme Court issued opinions in Perank, Coando and Hagen. Justice Stewart's opinion for the majority in Perank announced that court's conclusion that the boundaries of the Uintah Valley Reservation had been diminished, such that the town of Myton was no longer within “Indian country,” and elaborated at some length on the majority's reasoning in reaching that result. See Perank, 858 P.2d at 933-953.

Almost immediately, the Ute Indian Tribe filed a renewed motion before this court seeking preliminary injunctive relief against any assertion of jurisdiction by the defendants in reliance on the Perank decision. Though the motion was fully briefed by the parties and calendared for hearing on August 3, 1992, it was not ruled upon at that time. By stipulation signed by all of the parties to this action, it was agreed that the State and Local Defendants would “refrain from enforcing the Utah Supreme Court's decision in State v. Perank, [858 P.2d 927,] No. 8602433 [sic] (Utah July 17, 1992),” and would “refrain from exercising criminal jurisdiction over Indians who are members of the Ute Indian Tribe or any other federally recognized Indian Tribe,” as well as “civil jurisdiction over actions involving the Ute Indian Tribe or members of the Ute Indian Tribe, or interfering, in any way, with the Tribe's exercise of such civil or criminal jurisdiction within the exterior boundaries of the Uintah and Ouray Reservation, Utah,” as those boundaries were defined by the Tenth Circuit in Ute Indian Tribe. The parties also agreed that the Ute Indian Tribe “shall exercise criminal jurisdiction over Indians who are members of the Ute Indian Tribe or any other federally recognized Indian Tribe” and that the Tribe would “exercise civil and regulatory jurisdiction over Indians and non-Indians to the extent permitted by law within the exterior boundaries” as defined by Ute Indian Tribe. This court simply ordered that “the parties shall comply with the provisions of said stipulation,” pending this court's ruling on the merits of the Tribe's renewed motion for injunctive relief. Order, dated September 2, 1992, (nunc pro tunc to August 3, 1992).

The hearing on the Tribe's renewed motion was reset for December 22, 1992, then rescheduled for April 14, 1993, in light of the filing of a petition for certiorari in the Hagen *1483 case, (see Order, dated December 17, 1992), and again reset to June 18, 1993, after the Solicitor General of the United States filed a brief regarding the certiorari petition. See Order, dated March 26, 1993. Upon the grant of certiorari by the Supreme Court in the Hagen case, this court stayed further proceedings in this action pending the outcome of that appeal. See Order, dated April 29, 1993.^FN13

FN13. The State of Utah also filed motions before the Utah Supreme Court to stay issuance of that court's remittitur in the Perank, Coando and Hagen cases, which was granted “pending (1) the conclusion of any proceedings on certiorari in the United States Supreme Court ... and (2) the final disposition of the injunction proceeding pending in the United States District Court for the District of Utah, Ute Indian Tribe v. State of Utah, et al., [521 F.Supp. 1072,] Civil No. C75-408. Until this Court lifts the stay, the decision in State v. Perank, ... shall not be relied on as precedent by any lower court.” Perank, 858 P.2d at 930 (Utah 1993).

On February 23, 1994, the United States Supreme Court announced its decision in Hagen, holding that the Uintah Valley Reservation had been diminished by Congress when its unallotted and unreserved lands were “opened” to non-Indian settlers pursuant to the 1902 Act, and therefore, that Myton, Utah was not within “Indian country” within the meaning of 18 U.S.C. § 1151 (1988 ed.). Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994).

The announcement of the Hagen decision provoked a flurry of motion practice in this proceeding. The State and Local Defendants filed a motion to dissolve the September 2, 1992 Order of this court preserving the jurisdictional status quo, and then on April 27, 1994, a “Motion for Emergency Relief” concerning the exercise of criminal jurisdiction, which was calendared for hearing on May 2, 1994.^FN14 Following that hearing, this court entered an Order modifying the September 2, 1992 Order “to allow the State and Local Defendants to prosecute felony crimes occurring on lands within the original boundaries of the Uintah Valley Reservation which are not “Indian country” as defined by 18 U.S.C. § 1151, et seq.” Order, dated May 2, 1994. At the May 2, 1994 hearing, this court scheduled a hearing on all pending motions for June 7, 1994, which was continued at the request of the parties until August 2, 1994, with briefs to be filed during July.^FN15 On July 15, 1994, the Tribe filed its Brief of Plaintiff Ute Indian Tribe in Opposition to Defendants' Motion to Dissolve Preliminary Injunction (“Brief of Ute Indian Tribe”); ^FN16 on July 26, 1994, the defendants filed the State and Local Defendants' Memorandum in Opposition to the Ute Tribe's Motion for Injunctive Relief (“Defendants' Memorandum”); ^FN17 and on July 29, 1994, the Government filed the United States' Memorandum as Amicus Curiae in Response to the State of Utah's Motion to Vacate and Set Aside the Preliminary Injunction (“United States' Memorandum”).^FN18

FN14. This motion was filed shortly after the Supreme Court's denial of a petition for rehearing in Hagen. See Hagen v. Utah, 511 U.S. 1047, 114 S.Ct. 1580, 128 L.Ed.2d 222 (1994).

FN15. Upon an informal request by counsel, the matter was again set down for a status conference on July 14, 1994, but no one appeared. See Minute Entry, dated July 14, 1994.

FN16. Previously, the Tribe had filed its Brief in Support of Permanent Injunction, dated September 25, 1992, as well as the Tribe's Reply Brief in Support of Permanent Injunction, filed December 17, 1992, both of which predate Hagen. Counsel for the Tribe submitted additional materials by Letter, dated September 1, 1994, including the slip opinion in Chickasaw Nation v. Oklahoma ex rel. Oklahoma Tax Comm'n, 31 F.3d 964 (10th Cir.1994) and a memorandum opinion prepared by the Regional Solicitor, U.S. Department of the Interior, dated July 7, 1994, concerning the impact of Hagen on federal, state and tribal jurisdiction within the Uintah Basin.

FN17. While the State and Local Defendants filed no memorandum accompanying their Motion to Vacate and Set Aside Preliminary Injunction and to Dismiss Plaintiff's Motion for Permanent Injunctive Relief, dated April 25, 1994, they had filed several prior memoranda, including the State and Local Defendants' Response in Opposition to the Tribe's Request for Permanent Injunction, dated November 23, 1992, and the State and Local Defendants' Reply to the Amicus Curiae Memorandum of the United States, dated December 11, 1992.

FN18. The Government had also filed a prior Memorandum as Amicus Curiae in Support of Ute Indian Tribe's Motion for Injunctive Relief, dated November 23, 1992.

*1484 At the request of counsel, the August 2, 1994 hearing was conducted as a status or pretrial conference, at which time this court set a hearing on the merits for September 12, 1994, with the proposed pretrial order to be prepared and submitted by counsel on or before August 12, 1994. See Minute Entry, dated August 2, 1994.^FN19 By stipulation of counsel, the time for filing the proposed pretrial order was extended to August 19, 1994. See Order, dated August 22, 1994. The proposed Pretrial Order Concerning “Indian Country” Issues was received on August 19, 1994, signed by the court on September 9, and entered on September 12, 1994, prior to the hearing on the merits.

FN19. At that time, counsel for Roosevelt City made what amounted to a “speaking motion” for immediate relief from the court's September 2, 1992 Order as modified by the May 2, 1994 Order, on the theory that “it is acknowledged by the Ute Tribe and the United States and all the parties here that Roosevelt City is no longer within Indian country.” Transcript of Hearing, dated August 2, 1994, at 24:17-20. Roosevelt City having filed no formal request for immediate relief, this court made no formal ruling at that time.

At the September 12, 1994 hearing, arguments of counsel on the legal issues outlined in the Pretrial Order were heard at length. See Transcript of Hearing, dated September 12, 1994, passim. Noting that “with the added gloss on what was done early on, the effort to mesh those into something that makes sense, is obviously something that will require some effort,” this court took the matter under advisement. Id. at 72:19-22.^FN20

FN20. Since that time, several individual Indian criminal defendants whose offense conduct occurred within “Indian country” as delineated in Ute Indian Tribe have filed motions for relief pursuant to 28 U.S.C. § 2255 (1994). In United States v. Cuch, 875 F.Supp. 767 (D.Utah 1995), Judge Sam ruled that the governing law concerning jurisdiction over defendant Cuch at the time of his conviction was the Tenth Circuit's en banc ruling in Ute Indian Tribe and that the Hagen decision did not apply retroactively to alter that result. The Tenth Circuit's decision in Cuch, announced March 21, 1996, affirms Judge Sam's ruling and sheds some additional light on the Tenth Circuit's reading of Ute Indian Tribe after Hagen, particularly as it pertains to cases decided before Hagen. More about that later....

Issues Now Before This Court

At the outset, it seems worthwhile to define the particular issue or issues now in dispute, and to do so with some care. In approaching the questions raised by the parties' motions, this court has read and reread Hagen with some care. Hagen determined “that the Uintah Indian Reservation has been diminished by Congress,” i.e., that the original boundary of the Uintah Valley Reservation does not currently define the present territorial extent of federal, state and tribal jurisdiction in the Uintah Basin. 510 U.S. at 419-21, 114 S.Ct. at 970. However, the Hagen opinion makes no attempt to define with particularity what the current boundary is.

The Pretrial Order Concerning “Indian Country” Issues (“Pretrial Order”), prepared by counsel and entered by the court on September 12, 1994, identifies, inter alia, the following issues as currently being in dispute:

A. In spite of Hagen, are the State and Local Defendants precluded as a matter of law or equity under the doctrine of collateral estoppel or otherwise, from asserting jurisdiction over the Tribe or its members within the exterior boundaries of the Uintah and Ouray Reservation, as those boundaries were defined in Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir.1985), cert. den. 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986)?

B. Although the U.S. Supreme Court denied the Tribe leave to intervene as a party in Hagen, is the Supreme Court's decision binding on the Tribe and its members in this action under the doctrine of stare decisis or otherwise?

C. In light of Hagen, do any or all of the following categories of fee land constitute “Indian Country” under 18 U.S.C. § 1151: (a) land that was apportioned to the “Mixed-Blood” Utes under the Ute Partition Act; (b) lands allotted to individual Indians that have passed into fee status after 1905; and (c) lands that were held in trust after the Reservation was opened in 1905 but that since have been exchanged into fee status by the Tribe for then-fee (now trust) lands in an effort to consolidate its land holdings[?]

*1485 Id. at 14-15. Before reaching the issues addressed in Paragraphs 5.A and 5.B of the Pretrial Order, it makes sense to examine to what extent the decision of the United States Supreme Court in Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994), stands in genuine conflict with the Tenth Circuit's en banc ruling in Ute Indian Tribe v. State of Utah, 773 F.2d 1087 (10th Cir.1985), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). The res judicata, collateral estoppel or other binding effect of the Tenth Circuit's judgment in Ute Indian Tribe comes into question in this proceeding only insofar as Ute Indian Tribe and Hagen cannot be reconciled. The land category issues identified in Paragraph 5.C of the Pretrial Order would also appear to be subsumed within this more fundamental question.

The Uintah Reservation Boundaries After Hagen

Let us begin with those questions as to which Ute Indian Tribe and Hagen are in accord-those issues which are not in dispute. First, there is no question that the jurisdiction of the Ute Indian Tribe encompasses all of the lands now held in trust by the United States for the benefit of the Tribe and its members, or where Indian allotments are concerned, lands now held in trust for the benefit of individual Ute allottees. See Pretrial Order Concerning “Indian Country” Issues, dated September 12, 1994, at 13 ¶ 3.M. Altogether, this represents approximately 1.2 million acres of land. Nor did Hagen address the Tenth Circuit's determination in Ute Indian Tribe that the 1905 national forest withdrawals of approximately 1,010,000 acres of reservation land did not diminish the Uintah Reservation boundaries. Hagen also makes no ruling concerning the boundaries of the Uncompahgre Reservation, the original extent of which was reaffirmed by the Tenth Circuit. The Ute Indian Tribe suggests that “the legal status of the non-opened lands on the Uintah Valley Reservation and all of the lands on the Uncompahgre Reservation remain [s] as established by the Tenth Circuit in Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir.1985), cert. denied, 479 U.S. 994[, 107 S.Ct. 596, 93 L.Ed.2d 596] (1986).” Brief of Ute Indian Tribe, at 2 n. 4; see id. at 15 n. 19. Accord, State of Utah v. Perank, 858 P.2d 927, 934 (Utah 1992).

The present controversy thus “centers on whether the State or the Tribe and federal government have jurisdiction over the various categories of non-trust, i.e., fee, lands within the Uintah Valley Reservation,” (Brief of Ute Indian Tribe at 15 (emphasis added & footnote omitted)), and therefore concerns the extent to which Hagen supplants Ute Indian Tribe 's reaffirmation of continuing federal and tribal jurisdiction within the Reservation's original exterior boundaries.

The United States, appearing in this proceeding as an amicus curiae, attempts to minimize the practical impact of Hagen on the jurisdictional landscape mapped in Ute Indian Tribe: because the 1905 Act expressly provided that the “unallotted lands ... shall be disposed of under the general provisions of the homestead and townsite laws of the United States,” the reservation was diminished only to the extent of the lands “actually entered by non-Indians under the 1905 Act and not subsequently reacquired by the Tribe and taken into trust status.” United States' Memorandum, dated July 29, 1994, at 9. Moreover, “any parcels of land, though currently held in fee, that were never opened to non-Indian settlement under the 1905 Act remain ‘Indian country’.” Id. at 13.^FN21

FN21. According to the Government, “This category includes those fee lands that were initially Indian allotments that have become fee under a number of circumstances, as well as those lands that were distributed in fee status to former members of the Tribe or others under the Ute Partition Act, 25 U.S.C. §§ 677-677aa.” Id.

The Tribe joins the Government in asserting that Hagen 's “only effect is to separate from ‘Indian country’ those lands that were actually settled pursuant to the 1905 Presidential Proclamation,” noting that “the present disagreement centers on whether the State or the Tribe and federal government have jurisdiction over the various categories of non-trust, i.e., fee, lands within the Uintah Valley Reservation.” Brief of Ute Indian Tribe at 13, 15 (emphasis added). The Tribe *1486 identifies four categories of non-trust land within the Reservation:

(1) lands that passed from trust to fee status under the 1905 Presidential Proclamation; (2) lands that were initially allotted to tribal members under the Act of May 27, 1902, ch. 888, 32 Stat. 245, which have since passed into fee status (whether owned by an Indian or non-Indian); (3) 211,430 acres of land ... that were distributed to former members of the Tribe under the Ute Partition Act ...; and (4) former trust lands that passed into fee when they were exchanged by the Tribe for fee lands under the Indian Reorganization Act ... and [the] Indian Land Consolidation Act....

Id. at 16 (citations omitted). According to the Tribe, only the first category of non-trust lands are no longer “Indian country” within the meaning of 18 U.S.C.A. § 1151 (1984). The Tribe even points to language in the Utah Supreme Court's opinion in Perank as support for this view: “ ‘The only issue in this case ... is whether the unallotted and unreserved lands that were opened to entry in 1905 and not later restored to tribal ownership and jurisdiction ... are within the present boundaries of the Reservation.’ ” Id. at 18 (quoting Perank, 858 P.2d at 934 (emphasis supplied by the Tribe; footnote omitted)).

Setting aside for a moment the semantic distinction between lands that “were opened to entry” under the 1905 Act (Perank ) and lands that were “actually settled” (Tribe), the Tribe correctly points out that on their facts, both Perank and Hagen addressed conduct occurring in Myton, Utah, “which was established within the original boundaries of the Uintah Indian Reservation when the Reservation was opened to non-Indian settlement in 1905.” Hagen, 510 U.S. at 408, 114 S.Ct. at 964. Indeed, Myton was established by Presidential Proclamation, together with the towns of Duchesne and Randlett. See 34 Stat. 3139, 3142. Plats of the Reserved Townsite of Myton were approved on September 13, 1905, by the United States General Land Office and on August 26, 1919, by the United States Surveyor General.^FN22 Thus Myton comes within the first category of non-trust lands listed by the Tribe, at least as to lands patented in fee, and in its entirety as lands “opened to entry” under Perank.

FN22. See Defendants' Memorandum at 25 n. 19.

[1] “Indian country” within the meaning of 18 U.S.C.A. § 1151(a) (1984) encompasses “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.” Thus, non-trust, or fee lands may be found within “Indian country” so long as there are identifiable “limits of any Indian reservation” embracing those lands.^FN23 Neither Hagen nor Perank determined the “Indian country” status of non-trust lands falling into any of the other three categories listed by the Tribe, or in Paragraph 5.C of the Pretrial Order because neither case involved conduct occurring on those lands. The Tribe and the United States suggest that the three remaining categories of non-trust lands not before the Court in Hagen remain “Indian country” because they are within the Uintah Reservation's “limits” for purposes of § 1151(a).

FN23. As the Tenth Circuit has recently observed, “both the Supreme Court and this Court have concluded § 1151 defines Indian country for both civil and criminal jurisdiction purposes.” Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1540-1541 & n. 10 (10th Cir.1995).

The State and Local Defendants emphatically dispute the theory advanced by the Tribe and by the United States: “If the boundaries were diminished, then it was recognized by all involved that tribal jurisdiction necessarily was limited to trust lands.... Once this diminishment of the exterior boundaries occurred, lands leaving trust status for any reason lost their status as ‘Indian country’ under 18 U.S.C. § 1151(a).” Defendants' Memorandum at 12 (emphasis in original).^FN24 In essence, the *1487 State and Local Defendants now argue that the Uintah Reservation was wholly terminated or extinguished by the 1902 Act and that thereafter no discrete, definable reservation boundaries exist. For purposes of § 1151(a), then, the only existing “limits” of the Uintah Reservation after 1905 are those that distinguish Indian lands held in trust from Indian and non-Indian lands held in fee. Indeed, this “ ‘Indian country’ equals trust lands” equation represents the central thrust of the Defendants' arguments in this proceeding.

FN24. The defendants hasten to point out that in addressing the question before the Supreme Court in Hagen, both the petitioner and the Tribe argued that a finding of “diminishment” would divest the Tribe and the United States of jurisdiction over the non-trust lands. Id. at 13-14. This would indeed be the case had the Court found the entire reservation to have been “disestablished,” or “terminated,” as in DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975).

The Uintah Reservation: “Diminished” or “Terminated”?

As is so often the case, the problem confounding court and counsel proves to be largely one of semantics. When Hagen speaks of the “question whether the Uintah Reservation has been diminished, ” that is, “made smaller; lessened; reduced ...” (Webster's New World Dictionary 386 (3d coll. ed. 1991)), the terminology itself implies a continued existence, albeit reduced in size, according to commonly understood usage. In essence, the Tribe and the United States argue that the limits of the Uintah Reservation have been “diminished” by being reduced only to the extent of issuance of fee patents resulting from non-Indian settlement under the 1905 Act. Conversely, the State and Local Defendants argue that the limits of the Uintah Reservation have been “diminished,” that is, extinguished, rendering § 1151(a) inapplicable to all four disputed categories of non-trust lands. The concept urged by the State and Local Defendants may more accurately be termed the disestablishment of a reservation, i.e., “to deprive of the status of being established,” (id. at 393), or its termination, i.e., “the end of something in space and time,” (id. at 1381), rather than a genuine diminishment. See also Ute Indian Tribe, 521 F.Supp. at 1085-1092.^FN25

FN25. The word terminate has also been used in this context. See, e.g., Mattz v. Arnett, 412 U.S. 481, 495, 93 S.Ct. 2245, 2253, 37 L.Ed.2d 92 (1973) (“A congressional determination to terminate [a reservation] must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.”); DeCoteau v. District County Court, 420 U.S. 425, 444-45, 95 S.Ct. 1082, 1092-93, 43 L.Ed.2d 300 (1975) (“the Lake Traverse Reservation was terminated in 1891”).

Yet when winnowed down to its precise holding, Hagen says this:

[W]e hold that the restoration of unallotted reservation lands to the public domain evidences a congressional intent with respect to those lands inconsistent with the continuation of reservation status. Thus, the existence of such language in the operative section of a surplus land Act indicates that the Act diminished the reservation....

510 U.S. at 414, 114 S.Ct. at 967.^FN26 Thus, the discontinuation of reservation status, or “diminishment” of the Reservation, was effective “with respect to those lands, ” plainly *1488 referring to the “unallotted reservation lands,” the lands restored to the public domain and “opened to entry” and settlement pursuant to the 1902-1905 Acts.

FN26. The State and Local Defendants quote the next sentence of the Hagen opinion, supplying emphasis as indicated:

Indeed, we have found only one case in which a Federal Court of Appeals decided that statutory restoration language did not terminate a reservation, Ute Indian Tribe, 773 F.2d at 1092, a conclusion the Tenth Circuit has since disavowed as “unexamined and unsupported.” Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1400, cert. denied, 498 U.S. 1012, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990).

Defendants' Memorandum at 16 (quoting Hagen, 510 U.S. at 414, 114 S.Ct. at 967). Of course, Justice O'Connor is citing to the portion of Ute Indian Tribe opinion discussing the restoration of the Uncompahgre Reservation to the public domain in the 1894 and 1897 Acts-not the opening of the Uintah Reservation in 1905. Compare 773 F.2d at 1090-1093 (“III. THE UNCOMPAHGRE RESERVATION”) with id. at 1088-1089 (“I. THE UINTAH ISSUE”). Likewise, the reference in Yazzie to the “unexamined and unsupported” conclusion in Ute Indian Tribe concerns only the 1985 ruling as to the Uncompahgre Reservation. Yazzie recounts the analysis of the opening of the Uintah Reservation in favorable terms, restating its conclusion that “restoration language was not the operative language of the statute being construed,” viz., the 1905 Act. Yazzie, 909 F.2d at 1399-1400.

This distinction is also lost upon Wendy L. Slater, “Pulling up the Nails” from the Uintah Indian Reservation Boundary: Hagen v. Utah, 28 Creighton L.Rev. 529, 546 (1995) (“The court noted that its decision in Ute was ‘unexamined and unsupported in the opinion.’ ” (footnote omitted)).

Justice O'Connor's phrasing of the holding in Hagen parallels Justice Stewart's framing of the statutory construction issue in Perank: “whether the language of the Act of May 27, 1902, which provided that the unallotted lands were to be ‘restored to the public domain,’ if used as operative statutory language opening a reservation would effect a diminishment of that reservation as to the lands so restored.” 858 P.2d at 934 (emphasis added). Justice Stewart articulated the court's holding in Perank in like terms: “We hold that the restoration language in the 1902 Act established the necessary congressional intent to diminish the Reservation as to those lands restored to the public domain and that the restoration language in the 1902 Act remained operative statutory language when the Reservation was opened in 1905.” Id. (emphasis added).

[2] As this court noted when first addressing the boundary issue in 1981, there exists a canon of statutory construction in reservation boundary cases “forbidding any assumption ‘that Congress would intend to change the reservation to an area without defined boundaries and, in addition, create a confusing checkerboard pattern of jurisdiction.’ ” Ute Indian Tribe, 521 F.Supp. at 1154 (quoting United States v. Long Elk, 565 F.2d 1032, 1039 (8th Cir.1977)). Yet the State and Local Defendants suggest that in construing the 1905 Act opening the Uintah Reservation in Hagen, the Supreme Court assumed exactly that.

[3] Nothing in the legislation pertaining to the Uintah Reservation expresses a congressional purpose to extinguish or terminate the Uintah Reservation in its entirety. Rather, Congress expressly provided that the Utes would retain more reservation land than merely their individual allotments. As Hagen explains, “A month after the passage of the 1902 Act, Congress directed the Secretary of the Interior to set apart sufficient land to serve the grazing needs of the Indians remaining on the Reservation. J.Res. 31, 57th Cong., 1st Sess. (1902), 32 Stat. 744.” 510 U.S. at 404, 114 S.Ct. at 962 (footnote omitted). In Congress' own words, the Secretary was directed to “select and set apart for the use in common of the Indians of that reservation such an amount of non-irrigable grazing lands therein at one or more places as will subserve the reasonable requirements of said Indians for the grazing of live stock.” In 1903, Congress again addressed the reservation grazing lands, limiting the selection to “the lands south of the Strawberry River on said Uintah Reservation” and providing that the lands “shall not exceed two hundred and fifty thousand acres....” Act of March 3, 1903, ch. 994, 32 Stat. 998. The 1905 Act “repealed the provision of the 1903 Act limiting the grazing lands to areas south of the Strawberry River,” (Hagen, 510 U.S. at 406, 114 S.Ct. at 963), leaving the reserved grazing lands requirement otherwise intact. Act of March 3, 1905, ch. 1479, 33 Stat. 1069. Thus, in the opening legislation affecting the Uintah Reservation, Congress visualized an “unopened” portion of the Reservation consisting not only of individual Indian allotments but also of a quarter-million acres of grazing land “for the use in common of the Indians of that reservation.” ^FN27 Even the oft-quoted 1903 “councils” of Indian Inspector James McLaughlin with the Utes residing on the Uintah Reservation acknowledge this:

FN27. In Perank, Justice Stewart noted that “[t]he allotments to individual Indians under the 1902 Act and the lands reserved for grazing and other purposes set aside for the Tribe by a 1902 Joint Resolution and the 1903 and 1905 Acts make up approximately 360,000 acres.” 858 P.2d at 934 n. 10.

[INSPECTOR McLAUGHLIN]: You say that [reservation boundary] line is very heavy and that the reservation is nailed down upon the border. That is very true as applying to the past many years and up to now, but [C]ongress has provided legislation which will pull up the nails which hold down that line and after next year there will be no outside boundary line to this reservation. Each of you will have a boundary to your individual holdings and there will also be a border to that 250,000 acre tract set apart for pasturage. You *1489 fear that you are going to be confined to the tract of land allotted. That is not so, ... [W]hen you take your allotments you can travel like white men and you will not need a pass. Your Agency will be continued just the same as now; the Agent will have full jurisdiction just the same as now, to protect your interests, and as citizens you will have the protection of the laws of the state to redress injuries against you.

JX 162 at 42-45 (emphasis added) (quoted in Brief for the Respondent, Hagen v. Utah, 1993 WL 384805, at Appendix C, at 5a-6a).

Nowhere in Hagen or Perank does either court find that the Uintah Reservation was “disestablished” or “terminated” altogether, or conclude, as the Supreme Court did twenty years earlier in DeCoteau, that “the tribe and the Government were satisfied that retention of allotments would provide an adequate fulcrum for tribal affairs” and that the reservation itself was terminated. 420 U.S. at 446, 95 S.Ct. at 1094. To the contrary, Justice Stewart observed in Perank that “all parties agree that the Uintah Reservation, as a political entity, continued to exist after 1905 as to the lands allotted to the Indians and the lands reserved for tribal use.” 858 P.2d at 934 (emphasis added). Thus the Uintah Reservation, though dramatically reduced in size, continued to exist after 1905 as an Indian reservation with definable “limits” within the meaning of 18 U.S.C. § 1151(a), and the lands encompassed by its diminished boundaries remain within “Indian country” under the statute.

Judge Monroe McKay, writing for the court of appeals in Chickasaw Nation v. State ex rel. Oklahoma Tax Comm'n, 31 F.3d 964 (10th Cir.1994), affirmed in part, reversed in part on other grounds and remanded, 515 U.S. 450, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995), expressed essentially this same view:

In Hagen, the Court concluded that the Uintah reservation had been “diminished” by various acts of Congress, and that therefore a town originally within the reservation was now outside the reservation and subject to state criminal jurisdiction. Notwithstanding the diminishment of the Uintah reservation in Hagen, there was no question but that the land within the diminished reservation retained its status as Indian country.

31 F.3d at 976 n. 8 (emphasis added).^FN28 Even more recently, in United States v. *1490 Cuch, 79 F.3d 987 (10th Cir.1996), the Tenth Circuit described the effect of Hagen in these terms: “[t]he Hagen decision effectively overruled the contrary conclusion reached in the Ute Indian Tribe case, redefined the Reservation boundaries resulting from our earlier decision, and conclusively settled the question.” Cuch, 79 F.3d at 989 (emphasis added). Judge Stephen Anderson, writing for the court of appeals in Cuch, reads Hagen as holding that “the state had jurisdiction to prosecute Hagen because Congress had diminished the Uintah Reservation in the early 1900s.” Id. In this context diminishment “redefined the Reservation boundaries” previously established in Ute Indian Tribe, but with no indication that the Uintah Reservation was terminated or disestablished altogether.

FN28. The State of Utah argues that Chickasaw Nation in fact ratifies its “Indian country-equals-trust lands” equation and that Judge McKay's reference to “land within the diminished reservation” speaks only of trust lands-wholly consistent with the State's theory of wholesale disestablishment. See Transcript of Hearing, September 12, 1994, at 20:14-21:12 (Mr. Andrews).

Judge McKay's opinion echoes the Supreme Court's holding in Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993), that the limits imposed by McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), and its progeny upon a state's power to tax the income of tribal members “applies to all Indian country, and not just formal reservations,” and that the crucial question is “whether the relevant tribal members live in Indian country-whether the land is within reservation boundaries, on allotted lands, or in dependent communities.” 508 U.S. at 125, 126, 113 S.Ct. at 1991, 1992. Sac and Fox to tax, citing Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), a case involving Indian tribal trust lands located outside of a formal reservation. Id. at 124-25, 113 S.Ct. at 1991. “Congress has defined Indian country broadly to include formal and informal reservations, dependent Indian communities, and Indian allotments, ...” Sac and Fox, Id. at 123, 113 S.Ct. at 1990.

Indian Country, U.S.A. v. Oklahoma Tax Comm'n, 829 F.2d 967 (10th Cir.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988), expressly equates “reservation” lands with “[T]ribal lands, trust lands, or certain allotted lands,” with reference to their common status as “Indian country” under 18 U.S.C. § 1151. Nothing in Indian Country, U.S.A. asserts that “reservation” or “Indian country” status under 18 U.S.C. § 1151(a) is dependent on or limited by Indian title or trust status. Nor does it suggest that once Indian tribal or trust land acquires “Indian country” status under § 1151(a), subsequent “issuance of any patent” in fee to § 1151(a) lands somehow divests the patented lands of “Indian country” status.

In footnote 8 of Chickasaw, Judge McKay quoted the Indian Country, U.S.A. opinion for the proposition that “[t]ribal lands, trust lands, and certain allotted lands generally remain Indian country despite disestablishment.” 829 F.2d at 975 n. 3 (Seymour, J.). In then observing that under Hagen “the land within the diminished reservation retained its status as Indian country,” this court reads Judge McKay to be referring to land within an existing reservation “[n]otwithstanding the diminishment.” Footnote 8 thus distinguishes “the diminished reservation” from “[t]ribal lands, trust lands, and certain allotted lands” following “disestablishment,” rather than equating the two.

In this respect, Rosebud Sioux Tribe v. Kneip also proves instructive. In Rosebud, the Court speaks of a reservation diminished (430 U.S. at 585, 586, 587, 588, 594, 598, 611, 614, 97 S.Ct. at 1362, 1362, 1363, 1363, 1367, 1369, 1375, 1377), of the diminution of a reservation by restoration of “opened” unallotted lands (id. at 592, 597, 602, 97 S.Ct. at 1366, 1368, 1371), of the disestablishment of a particular county “from the Rosebud Reservation,” (id. at 601, 603, 609, 97 S.Ct. at 1370, 1371, 1374), of congressional intent “to exclude Gregory County from the Rosebud Reservation,” (id. at 603, 97 S.Ct. at 1371), or “to disestablish the affected [opened, unallotted] areas.” Id. at 613, 97 S.Ct. at 1376. At page 599, 97 S.Ct. at page 1369 of the Rosebud opinion, the Court notes that “[h]ere, for example, unlike the situation in DeCoteau, we are not faced with an Act which, if it disestablished the area under question, would terminate the entire reservation, 420 U.S., at 446-447, [95 S.Ct., at 1094].” Id. at 599 n. 20, 97 S.Ct. at 1369 n. 20 (emphasis added).^FN29

FN29. The distinction between DeCoteau and Rosebud in this regard has been pointed out by the Eighth Circuit:

The Indian conduct in DeCoteau did occur on non-Indian, unallotted land within the 1867 reservation boundaries. DeCoteau v. District County Court, supra, 420 U.S. at 428, 95 S.Ct. at 1082. However, the Supreme Court also concluded that as to this particular land, reservation status had been terminated by the Congressional Act of March 3, 1891, c. 543, 26 Stat. 1035. DeCoteau v. District County Court, supra, 420 U.S. at 444-445, 95 S.Ct. 1082. Appellant cites no statute similarly disestablishing the reservation status of Todd County in the Rosebud Reservation.

....

Judge Blackmun in the first Beardslee appellate opinion concluded from his research that “(o)nly three Acts of Congress have affected the territory of the reservation since its establishment in 1889 and none of these concern Todd County. * * * No part of the Todd County portion of the reservation has ever been formally opened.” Id. at 285. Similarly last year in Rosebud Sioux Tribe v. Kneip, 521 F.2d 87 (8th Cir.1975), cert. granted, [425] U.S. [989], 96 S.Ct. 2199, 48 L.Ed.2d 814 (1976), where the court dealt with the South Dakota counties of Gregory, Tripp, Lyman, and Mellette, it also added that: “Todd County remains unopened.” Id. at 88 n. 1 (emphasis added).

Beardslee v. United States, 541 F.2d 705, 707, 708 (8th Cir.1976). See also United States v. Long Elk, 565 F.2d 1032, 1037, 1038 (8th Cir.1977) (Rosebud concluded that “Congress clearly intended to diminish the size of the Rosebud Reservation” and “disestablished the designated portions of the reservation”); United States ex rel. Cook v. Parkinson, 525 F.2d 120, 123 (8th Cir.1975) (“[t]he phrase ‘diminished reservation’ was interpreted [by the Eighth Circuit] to mean in Rosebud that the reservation was reduced geographically”); Black Hills Institute v. United States Department of Justice, 812 F.Supp. 1015, 1019 (D.S.D.1993) ( “Rosebud was a case involving congressional intent as to the disestablishment of a part of the reservation ” (emphasis added)).

Rosebud concluded that the language of the Act of April 23, 1904, ch. 1484, 33 Stat. 254, the Act of March 2, 1907, ch. 2536, 34 Stat. 1230, and the Act of May 30, 1910, ch. 260, 36 Stat. 448, affecting the Rosebud Reservation “not only opened the land for settlement, but diminished the boundaries of the Reservation pro tanto.” 430 U.S. at 588, 97 S.Ct. at 1363 (footnote omitted).^FN30 “The intent of Congress*1491 in the 1904, the 1907, and the 1910 Acts was to change the boundaries of the original 1889 Rosebud Reservation.” Id. at 615, 97 S.Ct. at 1377 (emphasis added).

FN30. pro tanto-“a defensible Latinism commonly used in the law” meaning “to that extent; as far as it goes.” Bryan A. Garner, A Dictionary of Modern Legal Usage 708 (2d ed. 1995). Accord, Black's Law Dictionary 1100 (5th ed. 1979) (“for so much; for as much as may be; as far as it goes.”)

Rosebud illustrates the fact that reservation diminishment is not necessarily the either-or, all-or-nothing, win-or-lose proposition asserted in this proceeding by the State and Local Defendants. In referring to the Uintah Reservation as being diminished “with re