HEBER CITY — Attorneys for three Utah counties have asked the U.S. Supreme Court to overturn a decision handed down by the 10th Circuit Court of Appeals this summer in a 40-year-old legal fight with the Ute Indian Tribe.

Duchesne, Uintah and Wasatch counties hope the high court will — once and for all — settle the question of who has criminal and civil jurisdiction over enrolled tribal members in a region of the state that once was or still is part of the Ute Tribe's federally established reservation.

"Frequently no one — not the tribe, the state, the counties, members of the tribe or non-Indians — can know ahead of time which government has jurisdiction over their activities on nontrust land," attorneys for Duchesne and Uintah counties wrote in their petition to the Supreme Court.

"The answer to that question frequently depends on a title search to determine the property’s history and on which court system hears the dispute," the attorneys wrote.

The counties argue that the conflict caused over the decades by differing federal court opinions has become "intolerable" and want the Supreme Court to "provide a single answer to this recurring question of federal law."

Wasatch County is taking the lead in the search for that answer, asking the Supreme Court to allow its case against Ute tribal member Lesa Jenkins to go forward. The case is on hold due to a stay issued by a federal judge at the direction of the 10th Circuit Court of Appeals.

Jenkins, 51, faces four misdemeanor charges in Wasatch County Justice Court. The charges stem from a July 2013 traffic stop on state Road 35, which runs through Forest Service land that county prosecutors argue is no longer part of the Uintah Valley Reservation based on a prior Supreme Court decision.

"This court and the (Utah) state courts have found that this precise reservation has been diminished, such that the county should have jurisdiction over the road," attorneys for Wasatch County wrote in their own petition.

The county argues that the tribe never objected to nontribal officers pulling over tribal members on state and county roads in Wasatch County until 2013, adding that "there is no evidence that the tribe has effectively policed — or can effectively police — those roads, including those in the Forest lands."

Attorneys for the Ute Tribe, however, argue that the issue of jurisdiction is settled and there is no need for the Supreme Court to hear the case.

"Based on our initial review, the tribe will be objecting to both the representations of fact and the representations of applicable law under the petitions," said Frances Bassett, an attorney with the Colorado-based law firm that represents the tribe.

"The petitions, for instance, depict the tribe as the party responsible for jurisdictional conflict, whereas the three-judge 10th Circuit panel unanimously concluded it was the Utah counties who undertook a deliberate campaign to relitigate the tribe’s reservation boundaries through criminal prosecutions of tribal members in Utah state courts," Bassett said.

In June, 10th Circuit Judge Neil Gorsuch — who authored the opinion for a three-judge panel — accused the state of Utah and the counties of using state court prosecutions of tribal members to try to redraw reservation boundaries settled by a series of rulings in the 1990s.

"Indeed, the harm to tribal sovereignty in this case is perhaps as serious as any to come our way in a long time," Gorsuch wrote, referring to Wasatch County's prosecution of Lesa Jenkins as "a test case."

Attorneys for the tribe argue a Utah Highway Patrol trooper didn't have authority to arrest Jenkins because she is an enrolled tribal member and the traffic stop happened on a section of SR-35 that is inside the historic boundaries of the Uintah Valley Reservation.

Nine months after Jenkins' arrest, the tribe filed an 11-page federal lawsuit that contained allegations of ongoing racial profiling, police harassment and illegal prosecutions of tribal members in Duchesne and Uintah counties. Wasatch County was not named in the complaint.

The tribe also asked a federal judge to reopen a case filed against the state, Duchesne County and Uintah County in 1975. The judge agreed to reinstate the case, which had been dismissed in 2000 after the parties signed three 10-year contracts that appeared to resolve their disagreements.

Those disagreements arose from a dispute over who has legal authority to prosecute or regulate the activities of tribal members in eastern Utah, where the jurisdictional map often resembles a poorly drawn checkerboard. Another point of contention is whether Congress ever "diminished or disestablished" the Uncompahgre Indian Reservation, which is part of the larger Uintah-Ouray Indian Reservation.

One of the primary problems, however, is a difference of opinions on which federal court ruling should be followed.

Tribal leaders cite a 10th Circuit Court of Appeals ruling handed down in 1997 — known as Ute V — as support for their position that the Uncompahgre Reservation was never diminished and that police and prosecutors are violating the rights of tribal members.

Meanwhile, state and county officials like Uintah County Attorney G. Mark Thomas consider the Ute V ruling "ill-reasoned." Thomas argues state and local police officers have jurisdiction to arrest tribal members under a 1993 U.S. Supreme Court decision in the case of Hagen v. Utah.

The Ute V ruling was handed down in response to the Hagen decision, which held that the Uintah Valley Reservation had been diminished and the cities of Roosevelt and Myton were no longer considered "Indian Country" under federal law.

The 10th Circuit Court of Appeals used Ute V to modify its prior ruling with respect to parts of the Uintah Valley Reservation, but also its opinion that the removal of more than 1 million acres of reservation land for national forests did not diminish the reservation's boundaries.

The Denver-based appellate court also noted that the Supreme Court did not address the Uncompahgre Reservation's boundaries in the Hagen ruling and, therefore, refused to reverse its previous ruling on the legal status of those boundaries.

Wasatch County was never a party to the series of cases that culminated with the Ute V ruling. A federal judge, however, made the county a party to the case in 2013 after the Ute Tribe sought a court order to stop Jenkins from being prosecuted.

The Utah Attorney General's Office, which represents the state in the long-running jurisdiction dispute, declined to comment Monday on the counties' decision to petition the Supreme Court.

The court is asked to review about 10,000 cases each year. Justices agree to hear oral arguments in about 80 cases.

Email: gliesik@deseretnews.com

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