By Jared Miller
“Because of the local ill feeling, the people of the States where [Indians] are found are often their deadliest enemies.” U.S. v. Kagama, 118 U.S. 375 (1886).
In a scathing opinion, the 10th Circuit Court of Appeals on Tuesday condemned the State of Utah for ignoring decades-old law preempting state prosecution of tribal members on Ute tribal lands.
Thanks in part to hard-fought legal battles in the 1990s, it is well settled that federal and tribal authorities alone may prosecute tribal members for offenses committed in Indian country in Utah. Those same cases helped adjudicated the boundaries of Ute lands.
In 2012, Utah brazenly ignored the precedent by arresting Ute member Lesa Jenkins for alleged traffic offenses inside reservation boundaries. In response, the Tribe initiated the federal suit that culminated in Tuesday’s decision.
Clearly appalled by the Jenkins prosecution, a 10th Circuit panel on Tuesday opined that “the harm to tribal sovereignty in this case is perhaps as serious as any to come our way in a long time.”
“Not only is the prosecution of Ms. Jenkins itself an infringement on tribal sovereignty, but the tortured litigation history that supplies its backdrop strongly suggests it is part of a renewed campaign to undue the tribal boundaries settled” in earlier cases, wrote judge Neil Gorsuch, who called the Jenkins prosecution a “test case.”
The panel further suggested that the patently unlawful prosecution of Jenkins undermined foundational legal concepts like finality.
“Most people know and readily assent to all of this,” the court wrote. “So it’s pretty surprising when a State and several of its counties need a reminder. But that’s what this appeal is all about.”
The panel stopped short of granting the Tribe’s request for sanctions against Uintah County despite the “highly doubtful grounds of some of its arguments to this court.”
But the court issued a warning: “In the event . . . the defendants persist in failing to respect the rulings . . . they may expect to meet with sanctions in the district court or in this one.”
State and county officials have yet to disclose whether they intend to challenge the ruling—or follow it.
Jared Miller is an Associate in the Seattle office of Galanda Broadman. His practice focuses on tribal court litigation and representing businesses and tribal governments in public affairs. Jared is licensed in more than a dozen tribal jurisdictions, where he litigates civil matters.
