FILED
United States Court of Appeals
Tenth Circuit
PUBLISH January 9, 2020
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee/
Cross Appellant,
v. Nos. 18-4151 and 18-4160
UINTAH VALLEY SHOSHONE
TRIBE; DORA VAN; RAMONA
HARRIS; LEO LeBARON; and others
who are in active concert with the
foregoing,
Defendants - Appellants/
Cross Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:17-CV-01140-BSJ)
Michael J. Rock, Michael J Rock, PLLC, Detroit, Michigan, for Appellants/Cross-
Appellees.
Jared C. Bennett, Assistant United States Attorney (John W. Huber, United States
Attorney, with him on the briefs), Office of the United States Attorney, Salt Lake
City, Utah, for Appellee/Cross-Appellant.
Before TYMKOVICH, Chief Judge, MURPHY, and CARSON, Circuit Judges.
TYMKOVICH, Chief Judge.
The United States sought to enjoin the Uintah Valley Shoshone Tribe and
several individual members from selling hunting and fishing licenses that
authorized members to take wildlife from the Uintah and Ouray Reservation. The
Uintah Valley Shoshone Tribe is not a federally recognized Indian tribe, but it
nonetheless claims to have tribal rights, including hunting and fishing rights,
related to the Reservation.
The district court held the Uintah Valley Shoshone Tribe has no authority
to issue licenses. The court, however, declined to issue a permanent injunction
prohibiting the issuance of future licenses against both the individual defendants
and the Tribe. We agree with the district court that the Uintah Valley Shoshone
Tribe lacks authority to issue hunting and fishing licenses, and we find the district
court did not abuse its discretion in declining to issue a permanent injunction.
I. Background
The Uintah and Ouray Reservation is located in northeastern Utah and is
the largest Indian reservation inhabited by members of the Ute Tribe. The Ute
Indians were originally composed of many bands dwelling across the state, each
with its own identity, and once occupied nearly half of the land comprising
present-day Utah. Floyd A. O’Neil & Kathryn L. MacKay, A History of the
Uintah-Ouray Ute Lands, 2 (1978). In 1861, President Lincoln established the
Uintah Valley Reservation in the Territory of Utah, which became a permanent
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reservation in 1864, and the tribal bands were to be consolidated within the
reservation.
After the Uintah Valley Reservation was established, the United States
attempted treaty negotiations with the various Indian bands living on the
Reservation. Gustive O. Larson, Uintah Dream: The Ute Treaty—Spanish Fork,
1865, 14 BYU Stud. Q. 291, 363 (1974). The chiefs of the bands of Indians
resisted the terms of the initial treaty draft in an effort to keep their land, but after
a series of private negotiations, they relented. The Spanish Fork Treaty, which
surrendered certain rights of Indians and reserved others, was sent to the Senate
in 1866 where it waited for ratification. In 1869, the new Commissioner of
Indian Affairs recommended the treaty not be ratified in hopes of making a better
treaty. The Senate, therefore, adopted a resolution that it did not advise and
consent to the treaty’s ratification. But even without the ratification of the
Spanish Fork Treaty, different bands of Indians settled on the Uintah Reservation
and became known as the Uintah Indians. See Uintah and White River Band of
Ute Indians v. United States, 152 F. Supp. 953, 954–55 (Ct. Cl. 1957).
A presidential Executive Order of January 5, 1882, established the
Uncompahgre Reservation for Uncompahgre Utes. After the Indian
Reorganization Act of 1934, the Uintah, White River, and Uncompahgre bands of
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the Ute Tribe reorganized to form the Ute Tribe of the Uintah and Ouray
Reservation.
In 1954, Congress passed legislation that significantly reorganized the Ute
Tribe. In the Ute Partition and Termination Act of August 27, 1954, ch. 1009, 68
Stat. 868 (codified as amended at 25 U.S.C. §§ 677–677aa), Congress established
how the members of the Tribe would be determined. The Act first distinguished
between “full-blood” and “mixed-blood” Utes. “Full-blood” Utes are members
who possess “one-half degree of Ute Indian blood and a total of Indian blood in
excess of one-half, excepting those who become mixed-bloods by choice under
the provisions of section 4 hereof.” Id. By contrast, “mixed-blood” Utes are
members who do “not possess sufficient Indian or Ute Indian blood to fall within
the full-blood class as herein defined, and those who become mixed-bloods by
choice under the provisions of section 4 hereof.” Id. In 1956, the Secretary
published final rolls that listed 1,314 full-blood members and 490 mixed-blood
members. Pursuant to the Termination Act, after publication of this list, “the
tribe shall thereafter consist exclusively of full-blood members. Mixed-blood
members shall have no interest therein except as otherwise provided in this Act.”
Thus, the Act terminated the membership of federal mixed-blood Ute Indians with
limited rights surviving that determination.
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After the Termination Act ended their tribal membership, some of the
mixed-blood Utes created an organization they called the Uintah Valley Shoshone
Tribe. But the organization is not, and never was, federally recognized as a tribe.
Rather, it is composed of mixed-blood Utes whose membership was terminated
under the Termination Act and their descendants. The leadership of the
organization currently includes individual defendants named in the
complaint—Dora Van, chairwoman; Ramona Harris, director; and Leo LeBaron,
director for wildlife.
In 2016 and 2017, the Uintah Valley Shoshone Tribe sold hunting and
fishing licenses to its members, authorizing the members to take wildlife from the
Uintah and Ouray Reservation. The area within the Uintah and Ouray
Reservation where the licenses were sold includes state, federal, tribal, and
private land as well as Ute Tribal Trust Lands.
In offering the licenses, the hunting and fishing applications assert the
Uintah Valley Shoshone Tribe is “a Federal Corporation d/b/a the ‘Ute Indian
Tribe’ of the Uintah & Ouray Reservations, Utah.” App. 720. And the hunting
licenses state the Uintah Valley Shoshone Tribe is a “Federally Recognized
Tribe.” App. 721–23. In addition, the organization has placed its own “No
Trespassing” signs on Ute reservation lands. App. 746.
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To communicate to members about the hunting and fishing program, Van
and Harris used the organization’s Yahoo! email account and Facebook page.
Several Facebook subscribers live outside the State of Utah, and they received
numerous communications about the hunting and fishing program.
In 2016, the Ute Division of Fish and Game encountered several members
of the Uintah Valley Shoshone Tribe hunting on the Ute reservation. The Ute
Tribe issued citations to the members and they were warned about the illegitimacy
of the hunting licenses. In addition, a Special Agent for the United States Fish
and Wildlife Service told the Uintah Valley Shoshone Tribe leadership that the
licenses were invalid. Nevertheless, the organization continued to sell licenses
well into 2017. 1
The United States filed a complaint and moved for a temporary restraining
order against the Uintah Valley Shoshone Tribe under 18 U.S.C. § 1345, which
allows courts to enjoin wire fraud. The United States argues the Uintah Valley
Shoshone Tribe has engaged in a scheme to obtain money by falsely representing
to members that the organization has the authority to issue licenses to hunt and
fish on Ute land. Because the organization used Yahoo! and Facebook to
1
The Uintah Valley Shoshone Tribe agreed not to sell any licenses while
this litigation is pending.
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communicate to members, the United States asserts the organization used
interstate wire communications to further its scheme.
In response, the Uintah Valley Shoshone Tribe presents two main
arguments. First, it argues the Ute Partition and Termination Act did not abrogate
hunting and fishing rights for mixed-blood members. Therefore, its members are
free to hunt and fish on the Uintah and Ouray Reservation. Second, the Uintah
Valley Shoshone Tribe argues the organization has maintained a cultural identity
and thus possesses certain treaty rights. The organization’s roots trace back to
1861 when the United States created the Uintah Valley Reservation. Even though
the United States has no formal relationship with the Uintah Valley Shoshone
Tribe, the Tribe contends the organization retains the treaty rights established in
1861 to use the land because it has maintained its separate and distinct tribal
community.
II. Analysis
The Uintah Valley Shoshone Tribe contends it has authority to issue
hunting and fishing licenses on the Reservation. If the answer to that question is
no, the United States argues the district court abused its discretion in denying the
permanent injunction. We address each argument in turn.
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A. The Uintah Valley Shoshone Tribe Lacked Authority to Issue
Hunting and Fishing Licenses
The Uintah Valley Shoshone Tribe argues its rights were not ceded by the
Ute Partition and Termination Act of 1954 and it can therefore exercise tribal
rights, including issuing hunting and fishing licenses. The organization points to
the Executive Order of 1861 as the basis for its rights. While we recognize the
significance of the Executive Order of 1861 in creating the Uintah Valley
Reservation and establishing certain rights for its Indian occupants, the
subsequent treaties establishing the Uintah and Ouray Reservation and the
Termination Act undoubtedly modified those rights. The Uintah Valley
Reservation became the Uintah and Ouray Reservation. And then the Termination
Act explicitly provided “for the partition and distribution of the assets of the Ute
Indian Tribe of the Uintah and Ouray Reservation in Utah.” 68 Stat. at 868.
Thus, to determine whether the Uintah Valley Shoshone Tribe had the authority to
issue licenses, we consider the language of the Termination Act and our decision
interpreting this Act in United States v. Felter, 752 F.2d 1505 (10th Cir. 1985).
While the Termination Act terminated the membership of mixed-blood Ute
Indians, it did not terminate certain rights, including their “remaining interest in
. . . all other tribal assets not susceptible to equitable and practicable
distribution.”
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68 Stat. at 876. Hunting and fishing rights are not “susceptible to equitable and
practicable distribution,” and because the Termination Act is silent on these
rights, the Termination Act did not explicitly abrogate these rights. See Felter,
752 F.2d at 1509 (holding the Termination Act was not a “backhanded way of
abrogating the hunting and fishing rights of mixed-blood Ute Indians”). Thus,
mixed-blood Utes maintained their individual hunting and fishing rights even
after their membership was terminated under the Termination Act.
But these hunting and fishing rights were limited by the treaties. First, our
case law establishes that hunting and fishing rights are personal to the mixed-
blood Utes included on the initial roll sheet and as such are “neither alienable,
assignable, transferable nor descendible.” United States v. Von Murdock, 132
F.3d 534, 538 (10th Cir. 1997) (quotations omitted). See also quoting United
States v. Felter, 546 F. Supp. 1002, 1021 (D. Utah 1982) (“Tribal rights in
property are owned by the tribal entity, and not as a tenancy in common of the
individual members . . . including hunting and fishing rights.”). Only “the
individual enjoys a right of user derived from the legal or equitable property right
of the tribe in which he is a member.” F. Cohen, Handbook of Federal Indian
Law 185 (1942 ed.). Thus, only the original 490 mixed-blood members listed on
the final rolls in 1956 had hunting and fishing rights on the Uintah and Ouray
Reservation—these rights could not be passed down to their descendants. See
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Felter, 546 F. Supp. at 1025 (citing F. Cohen, Handbook of Federal Indian Law
185 (1942 ed.)) (“As each of the mixed-blood Utes passes away, his or her
personal right of user is extinguished, it being neither inheritable or
transferable.”).
Second, only mixed-blood Utes acting in their individual capacity can
exercise these hunting and fishing rights. Mixed-blood members cannot convert
their rights of user in the Ute’s tribal rights into separate tribal rights of the
Uintah Valley Shoshone Tribe. The Termination Act states that the “mixed-blood
member” retains certain tribal assets such as hunting and fishing rights. 68 Stat.
at 876. The statute does not mention any property rights that inhere in a Uintah
organization after partition and termination. In fact, jurisdiction over the tribal
lands was established in the Ute Tribe.
And our cases make it clear that hunting and fishing rights formerly vested
in the Uintah band were merged into and are part of the Ute Tribe. The Uintah
Valley Shoshone Tribe, even if it maintains some organizational identity, has no
formal, separate existence outside the Ute Tribe. Thus, any tribal right—like
hunting and fishing—belongs to the Ute Tribe alone. Only the Ute Tribe can
issue hunting and fishing licenses, and Uintah Valley Shoshone Tribe members
not included on the original roll sheet of mixed-blood members have “no right of
user in hunting and fishing rights originally granted to the Uintah Tribe.” Von
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Murdoch, 132 F.3d at 541; see also Felter, 752 F.2d at 1509 (“The right to hunt
and fish on reservation land is a long-established tribal right” (emphasis added)).
Furthermore, the Termination Act established how these tribal assets were to
be governed. The Act states the tribal assets “not susceptible to equitable and
practicable distribution shall be managed jointly by the Tribal Business Committee
and the authorized representatives of the mixed-blood group.” 68 Stat. at 873. As
we recognized in Felter, these assets include hunting and fishing rights. Thus, the
hunting and fishing rights of individual members are managed solely by the Ute
Tribe and the mixed-blood representatives. This is a clear statutory indicator that
the Termination Act did not provide any asset control to other organizations
outside the Ute Tribe and the designated mixed-blood representative. As we noted
in Felter, “[t]he right to hunt and fish on reservation land is a long-established
tribal right” and the “[i]ndividual Indians . . . enjoy a right of user in the tribe’s
hunting and fishing rights.” 752 F.2d at 1509. In this case, the United States does
not dispute the rights of individual mixed-blood Utes who were listed on the
original rolls to hunt and fish. The United States only disputes the Uintah Valley
Shoshone Tribe’s assertion of tribal authority to issue licenses in direct
contradiction to the Termination Act.
This interpretation is supported by Menominee Tribe v. United States, 391
U.S. 404 (1968), which our court relied on in Felter. In that case, the Supreme
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Court held the Menominee Indian Termination Act of 1954 did not abrogate
hunting and fishing rights of the Menominee Indians because the Termination Act
did not include an “explicit statement” abrogating individual hunting and fishing
rights. Id. at 412–13. Thus, the Supreme Court “decline[d] to construe the
Termination Act as a backhanded way of abrogating the hunting and fishing rights
of these Indians.” Id.
We recognize that in interpreting federal statutes in Indian affairs we
“provide for a broad construction when the issue is whether Indian rights are
reserved or established, and for a narrow construction when Indian rights are to be
abrogated or limited.” Felter, 752 F.2d at 1512; see also F. Cohen, Handbook of
Federal Indian Law 224–25 (1982). In Felter, we determined the hunting and
fishing rights of the individuals were not abrogated because the statute did not
clearly abrogate them—this is a narrowing construction. But we cannot also
conclude that the Termination Act implicitly gave the Uintah Valley Shoshone
Tribe authority to exercise Ute tribal rights with respect to hunting and fishing,
when the Act plainly established those rights within the Ute Tribe.
In sum, we hold the Uintah Valley Shoshone Tribe lacks the authority to
issue hunting and fishing licenses on the Uintah and Ouray Reservation to its
members.
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B. The District Court Did Not Abuse Its Discretion in Denying a
Permanent Injunction.
The district court declined to order a permanent injunction. The government
contends the court erred and that an injunction is necessary to stop the Uintah
Valley Shoshone Tribe from issuing licenses. It claims the organization violated
the federal wire fraud statute.
To obtain a permanent injunction, the United States must prove “(1) actual
success on the merits; (2) irreparable harm unless the injunction is issued; (3) the
threatened injury outweighs the harm that the injunction may cause the opposing
party; and (4) the injunction, if issued, will not adversely affect the public
interest.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th
Cir. 2007). We review the district court’s decision to deny a permanent injunction
for abuse of discretion. John Allan Co. v. Craig Allen Co., 540 F.3d 1133, 1142
(10th Cir. 2008).
To succeed on the merits of a wire fraud claim—the first element of the
permanent injunction standard—the government must show “(1) a scheme or
artifice to defraud or obtain money by false pretenses, representations, or
promises; and (2) use of interstate wire communications to facilitate that scheme.”
United States v. Cochran, 109 F.3d 660, 664 (10th Cir. 1997). “A scheme to
defraud by false representations may be accomplished by patently false statements
or statements made with a reckless indifference as to their truth or falsity, and
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deceitful concealment of material facts may constitute actual fraud.” Id. at 665.
“[E]ven though a defendant may firmly believe in his plan, his belief will not
justify baseless or reckless representations.” Id.
The district court found no such scheme existed based on the factual
stipulations. The district court stated:
Based on the agreed factual stipulations it is difficult for the Court to
find such a scheme to obtain money by false representations and
promises through the sale of licenses. [I]t appears to the Court the
United States as trustee is entitled to a ruling so declaring [the absence
of sovereign power in Defendants to issue hunting and fishing licenses],
but denied relief by way of injunction because of the absence of
evidence dealing with a criminal statute. It is clear from the history
since Lincoln’s time as a result of congressional and tribal action that
Defendants have no power to issue licenses to hunt and fish on trust or
Tribal lands. None. They should not do so, not because they have
concocted a scheme to defraud purchases of such licenses, but because
they simply lack power to issue such licenses.
United States v. Uintah Valley Shoshone Tribe, 2:17-cv-1140, 2018 WL 4222398,
at *6 (D. Utah Sept. 5, 2018). Because the district court determined the
government did not show actual success on the merits, the district court concluded
its analysis and declined to issue a permanent injunction.
When we review for abuse of discretion, we look to whether the district
court’s decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
Prairie Band Potawatomi Nation, 476 F.3d at 822. Even if we disagree with the
district court’s decision based on our own review of the record, or if we find the
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district court’s explanation minimal, we still defer to the district court and affirm
its decision if the district court did not abuse its discretion.
Here, the district court concluded that no scheme existed—the Uintah Valley
Shoshone Tribe was simply purporting to exercise authority it did not actually
have. This is a reasonable conclusion. Even though the Uintah Valley Shoshone
Tribe stated it was a federally recognized tribe and was doing business as the Ute
Indian Tribe, it did not make these statements to obtain money through a scheme.
Rather, the organization plausibly made these statements because it believed its
members were allowed to hunt and fish on the lands, and it wants to preserve its
cultural identity and protect members’ alleged individual and tribal rights.
Given these conclusions by the district court, we find the court did not abuse
its discretion in denying a permanent injunction. And to the extent the Tribe
engages in future misconduct, the government is free to renew its request at that
time.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court.
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