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The mythical Sisyphus toiled for eternity, rolling a boulder up a hill only to see it careen back down for a new push.
After issuing seven decisions in 40 years of litigation over the boundaries of the Ute Indian Tribe lands, exasperated judges on the 10th U.S. Circuit Court of Appeals opined Tuesday, "We're beginning to think we have an inkling of Sisyphus's fate."
Citing "extreme circumstances," the Denver-based court removed U.S. District Judge Bruce Jenkins from the dispute, as requested by the Ute Indian Tribe. The court, emphasizing that the "checkerboard" boundaries defended by the tribe had been clearly set in previous rulings, ordered Utah's federal court "to proceed to a final disposition promptly."
The ruling stressed the court saw "no sign of bias" from Jenkins, who has presided for nearly four decades over the conflict — fueled by clashes over who can prosecute tribal members and nonmembers for crimes on and off reservation lands.
However, Jenkins "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 for the unanimous three-judge panel.
The opinion reverses Jenkins' order dismissing Myton as a defendant in a lawsuit filed by the Ute Tribe in 2013. That suit seeks a permanent injunction enforcing the terms of the previous 10th Circuit rulings determining the boundaries of "Indian country."
Salt Lake City attorney J. Craig Smith, who represents Myton, said no decision has been made yet on whether to appeal the decision.
The tribe's attorney, Jeffrey Rasmussen, of Louisville, Colo., said tribal members are pleased with the decision.
"They have spent a lot of time and energy defending the reservation against these state attempts at encroachment," Rasmussen said.
In June, as the decision was pending, the tribe reached a series of law enforcement and regulatory agreements with the state and Uintah and Duschesne counties. The agreements include the cross-deputization of state and local officers, tribal police and Bureau of Indian Affairs officers.
Daniel Burton, a spokesman for the Utah Attorney General's Office, said the office had no comment at this time on the ruling.
The 10th Circuit opinion says the boundary litigation began in earnest in 1975, when the Ute Tribe filed a lawsuit in federal court alleging the state and several local governments were prosecuting American Indians for crimes they allegedly committed on tribal lands.
The suit said that under federal law, American Indians in Indian country — in this case, a swath of the Uinta Basin within the boundaries of the historic Uintah Valley and Uncompahgre reservations — are subject only to federal and tribal prosecution for alleged crimes, and are not under state and local jurisdiction.
The state and its subdivisions, including Uintah and Duchesne counties, pointed out that Congress had allowed portions of former Ute reservation land to pass to non-Indians, beginning in 1905. Such transferred lands did not qualify as Indian country, they argued.
The 10th Circuit resolved the boundary issues in a series of rulings that resulted in the "checkerboard" jurisdiction, where criminal prosecution power rests with state and local officials on some lands and with federal and tribal officials on others.
After the fifth appeals court ruling in 1997, the parties entered into agreements that seemed "to keep the peace," the 10th Circuit said. But then Utah and several counties began prosecuting tribal members for crimes on lands determined to be Indian Country, prompting the Ute Tribe to file its suit three years ago asking for a permanent injunction, according to the appeals court.
As a first step to getting the permanent injunction, the tribe sought a preliminary injunction halting the prosecution of one tribal member for alleged traffic offenses on land determined to be Indian country. After Jenkins denied the request, the tribe appealed to the 10th Circuit.
Tuesday's opinion noted the 10th Circuit said nearly 20 years ago that all boundary questions at issue had been finally resolved.
"Even so, the years since seem to have brought nothing but relitigation of those boundaries," Gorsuch wrote. "Utah and its subdivisions bear responsibility for much of this. We have even had to take the extraordinary step of reminding them, parties who should (and do) know better, of the possibility of sanctions if they continue to defy settled judicial mandates."
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