Utah’s unprecedented argument against public lands is “an existential threat” to the Ute Indian Tribe and its reservation, the tribe charges, accusing the state of attempting to mislead the Supreme Court.
The state’s August filing asks the justices to determine whether it’s constitutional for the Bureau of Land Management to hold 18.5 million acres of public land in Utah that is “unappropriated” for specific national sites or uses, such as parks or monuments.
Utah describes its request as a single legal question, appropriate for the Supreme Court to hear directly.
But the tribe argues “this case is exponentially bigger,” pointing to “Indian law issues that Utah seeks to hide from this court through misleading elisions and inaccurate disclaimers.”
The tribe’s objections center on 1.5 million acres within the Uncompahgre Reservation, one of two historic reservations that make up today’s Uintah and Ouray Reservation in northeastern Utah.
The first, the Uintah Valley Reservation, was established by President Abraham Lincoln in 1861. The Uncompahgre Reservation was ordered by President Chester Arthur in 1882 — based on an 1880 agreement, ratified by Congress, which the tribe contends granted it title to the 1.5 million acres.
(Christopher Cherrington | The Salt Lake Tribune)
For the past six years in a federal district court in Washington D.C., the United States and Utah have been arguing that the disputed acreage — currently administered by the BLM — is federally owned public land, the tribe said. The Utes contend the acreage is or should be tribal trust land.
Then Utah included those 1.5 million acres in its Supreme Court case, the tribe said, along with a “delusive” disclaimer that its filing “would not directly challenge” the United States’ authority to retain lands held in trust for Indian tribes.
Utah has until Dec. 16 to respond to the tribe’s legal brief. But in a separate Wednesday filing, the state included a footnote aimed at the tribe, denying that the 1.5 million acres are “at issue” in the Supreme Court case.
The tribe said it consulted with state officials before it filed its November brief, asking them to “eliminate” the claim on the Uncompahgre Reservation land from the Supreme Court case. “Utah refused to withdraw the allegations,” the Utes’ attorneys wrote.
The tribe wants the justices to reject Utah’s request to present its lawsuit in the Supreme Court. If the court agrees to hear Utah’s case, the tribe said, it wants to intervene.
The Utah Attorney General’s Office did not respond to a request for comment. A spokesperson for the office previously said that it does not usually comment on pending litigation.
But emails obtained by The Salt Lake Tribune through an open records request show state officials debated how to portray the Uncompahgre Reservation.
‘Stiff pushback’ from the tribe
After hearing from the Ute Tribe, Utah officials discussed how to label the Uncompahgre Reservation on maps they were using to promote the lawsuit, according to emails obtained by The Tribune.
A map on the website for the state’s pricey “Stand for our Land” media campaign, depicting “federally controlled lands in the U.S.,” includes land across the country managed by the Bureau of Indian Affairs. Another map includes the Uncompahgre Reservation as “lands in lawsuit.”
Dan Burton, general counsel for the Utah Attorney General’s Office, wrote Sept. 20 that the state was “getting some stiff pushback” about including the Uncompahgre land in the lawsuit.
“They assert that it’s already established and not included in the written definition of unappropriated lands,” Burton wrote, “but the map shows that the land we aim for includes them.”
In the same email chain, Assistant Attorney General Kathy Davis replied: “So, I’m fine with the map excluding the Uncompahgre lands from our FLPMA [Federal Land Policy and Management Act] lawsuit [in the Supreme Court]. I just hope this map doesn’t pop up as ‘new evidence’ against us in our case pending in D.C. District Court. I just want to bring attention to that issue.”
Redge Johnson is the executive director of the state Public Lands Policy Coordinating Office, which is leading the media campaign associated with Utah’s Supreme Court filing.
He suggested amending the maps to call the Uncompahgre Reservation “‘disputed lands’ or simply by name.”
Davis responded: “I wouldn’t call it disputed. I think label it ‘Indian Country.’”
The Tribune’s records request was only for communications related to the media campaign; conversations about the state’s legal strategy are protected.
Another judge is already considering Utah’s question
“The exact same question” that Utah is asking the Supreme Court to evaluate about the land is currently being decided in the Washington D.C. district court case, the tribe contends.
The tribe sued the United States in 2018, arguing it should be compensated for the federal government’s use of the disputed 1.5 million acres. Utah intervened in that case, opposing the tribe. The judge in that case is scheduled to hear arguments Dec. 16.
The Utes point out that it has taken the district court six years to get to that point with just 1.5 million acres. Reviewing the legal and factual history of the 18.5 million acres that Utah wants the high court to consider, the tribe’s brief said, “will be overwhelming.”
The tribe says Utah aims to ‘do away with Indian Country’
Among its other arguments, the tribe contends that Utah’s interpretation would mean the United States could not hold land in Utah in trust for tribes. On such land, federal officials hold the title while tribes can benefit from its uses and have jurisdiction — which means state and local governments can’t impose taxes, among other things.
The state believes that the Utah Enabling Act — the law that allowed Utah to become a state — says that the federal government should give up “unappropriated” federal land. Its lawsuit cites that legislation, but the filing omits a phrase that refers to lands held by any tribe.
The Ute Tribe argues that section was “selectively” omitted for this reason: Utah is quietly trying to obtain a precedent that would lead not only to the federal government’s obligation to dispose of public land, but to dispose of tribal trust lands, too.
Such a precedent would “do away with Indian Country and with tribes as governments,” the Utes argue.
What’s next?
In a filing earlier this month, the federal government asked the Supreme Court to reject Utah’s case. Among its arguments: Congress has exclusive authority over federal land.
So even if the Supreme Court finds the BLM’s continuing control unconstitutional, federal attorneys reasoned, the justices can’t order Congress to relinquish the land, as Utah seeks. Congress could chose a different solution, they added, such as designating the land for specific duties listed, or enumerated, in the Constitution.
Utah scoffed in its reply filed Wednesday: “The odds of Congress taking the highly dubious step of trying to reserve the vast lands at issue here for enumerated purposes — on top of the 19 million acres in Utah it has already reserved — are vanishingly slim.”
Attorneys for the state added that, if the Supreme Court finds the government’s land policies unconstitutional, “there is unquestionably a ‘substantial likelihood’ that the order would relieve Utah’s economic and sovereign injuries ‘to some extent.’” That’s enough for the court to keep the case, they said.
The Supreme Court “should grant review and end this intolerable departure from the Constitution’s original design,” the state said.
Utah now has until Dec. 16 to respond to the tribe’s filing. Once all briefs are filed, the Supreme Court will decide whether or not to hear the case.
