The seal of the Ute Tribe of Utah is seen on a gymnasium on the Uintah and Ouray Reservation in Utah. Photo: Ute Tribe Recreation / Facebook

Law | National

Judge takes aim at Ute Tribe after being kicked off sovereignty case

Wednesday, August 24, 2016

A federal judge is defending his handling of a long-running tribal sovereignty dispute even after being kicked off the case.

The Ute Tribe has won the case seven times over the last 40 years but officials in Utah keep trying to assert authority within the Uintah and Ouray Reservation. While most of the blame can be traced to the state and certain local governments, the 10th Circuit Court of Appeals also faulted Judge Bruce Jenkins, who was assigned to the dispute in 1978.

According to the 10th Circuit, Jenkins has not exhibited any bias in the matter. Still, he has failed to enforce prior rulings that should have settled the matter, the court stated.

"But the fact remains that the district court, in Ute VI and again today, has twice failed to enforce this court’s mandate in Ute V and has given us little reason to hope that things might change on remand or that this long lingering dispute will soon find the finality it requires," Judge Neil Gorsuch wrote in the 18-page decision, referring to two prior rulings in the case.

The case has yet to be reassigned but Jenkins isn't entirely happy that he's being kicked off after all this time. In a somewhat unusual August 15 letter to the chief judge of the federal court in Utah, he said the 10th Circuit got some of the "facts" wrong and he refuted the suggestion that he has failed to enforce any prior rulings.

"Let me be clear. I care not who finishes Ute '75. As you know, I have a calendar of complex and challenging matters," Jenkins wrote in the letter, the contents of which were first reported by The Salt Lake Tribune. "I do care that an alleged factual basis for an order of reassignment be accurate as well as adequate."

Judge Bruce Jenkins was nominated to serve on the federal bench in 1978 by then-President Jimmy Carter. He was soon assigned the Ute Tribe's sovereignty case. Still image: Tenth Circuit Historical Society

Despite claiming not to "care" who finishes the case, Jenkins took aim at the tribe for seeking to have him removed from it. He said the tribe filed a motion to recuse him on the "eve" of a "final hearing" and a key trial that had been scheduled to take place in March.

As a result, he said he was forced to cancel both proceedings, which he believed could have helped settle the long-running dispute.

"It was a mighty struggle to get that far," Jenkins wrote in the letter.

Jenkins noted that the tribe's motion, which was filed on March 7, was denied in an "exhaustive" opinion written by a different federal judge on July 25. But that 54-page ruling was rendered moot by the 10th Circuit's decision to have the case reassigned.

So, besides the tribe, who does Jenkins think might have been responsible for the change in course? In the letter, he took a veiled shot at the federal government without mentioning the government by name.

Instead, he used the word "amicus" because the United States participated in the 10th Circuit's proceeding as a friend of the court. During oral arguments on March 8, Judge Gorsuch posed a big question -- "Do we need to reassign this case?" -- to the federal government.

Jenkins does not say how that question was answered by Gina Allery, a member of the Turtle Mountain Band of Chippewa Indians who is a senior attorney at the Department of Justice. But he was clearly bothered by the 10th Circuit's reliance on how "amicus" responded.

"The Court of Appeals had the benefit of amicus who at no time ever appeared before the assigned Judge and never presented either factual or written material in the pending matter before the assigned Judge," Jenkins wrote in reference to the federal government.

The Ute Tribe filed the case in 1975 to prevent state and local authorities from citing, arresting and prosecuting its members for incidents that occur in Indian Country. The state parties argued that certain portions of the reservation have been diminished but the 10th Circuit has repeatedly ruled otherwise.

"Over the last forty years the questions haven’t changed — and neither have our answers. We just keep rolling the rock," Judge Gorsuch wrote on August 9.

Turtle Talk has posted documents from the case, Ute Tribe v. Myton.

10th Circuit Court of Appeals Decision:
Ute Tribe v. Myton (August 9, 2016)

Earlier 10th Circuit Court of Appeals Decision:
Ute Tribe v. Utah (June 16, 2015)