Ute Indian Tribe of the Uintah and Ouray Reservation v. McKee et al
Filing
89
MEMORANDUM DECISION AND ORDER denying 55 Motion for Summary Judgment; granting 60 Motion for Summary Judgment; denying 71 Motion to for Leave to File Amended Complaint; granting 83 Motion to Clarify. Case Closed. Magistrate Judge Cecilia M. Romero no longer assigned to case. See Order for Details. Signed by Judge Howard C. Nielson, Jr., on August 28, 2020.(mtw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION
AND ORDER
GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT,
DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT,
AND RESOLVING
OTHER PENDING MOTIONS
UTE INDIAN TRIBE OF THE UINTAH
AND OURAY RESERVATION,
Plaintiff,
v.
GREGORY D. MCKEE; T&L LIVESTOCK
INC.; MCKEE FARMS, INC.; and GM
FERTILIZER, INC.,
Case No. 2:18-cv-000314-HCN-DBP
Defendants.
Howard C. Nielson, Jr.
United States District Judge
Plaintiff, the Ute Indian Tribe of the Uintah and Ouray Indian Reservation, seeks to
enforce a judgment of its Tribal Court against Defendants: Gregory D. McKee and three
companies with which he is associated, T&L Livestock, McKee Farms, and GM Fertilizer. Both
the Tribe and Defendants have moved for summary judgment. The court grants Defendants’
motion and denies the Tribe’s motion.
I.
The Tribe sued Defendants in Tribal Court, alleging that they are misappropriating water
that the United States owns in trust for the Tribe. See Dkt. No. 2-2 at 3–17. The Tribe alleged
that some water is taken pursuant to an alleged agreement with the United States, and that other
water is taken without any authorization. See, e.g., Oral Argument at 12:20-15:00.1
1
The disputed water is carried by canals as part of the Uintah Indian Irrigation Project
(UIIP), which was established by the Act of June 21, 1906, ch. 3504, 34 Stat. 375. See Dkt. No.
55 at 7. The Tribe’s position appears to be that all of the disputed water and the waterways that
carry it are held in trust by the United States for the Tribe. See, e.g., id. at 32–33.
The court has some doubt that the waterways are held in trust solely for the Tribe,
however. By its terms, the 1906 Act appropriated money “[f]or constructing irrigation systems to
irrigate the allotted lands of the Uncompahgre, Uintah, and White River Utes in Utah.” 34 Stat.
375 (emphasis added). And as the 10th Circuit has explained, under the 1906 Act, the UIIP is
held “in trust for the Indians.” Hackford v. Babbitt, 14 F.3d 1457, 1468 (10th Cir. 1994). But
“the phrase[] ‘in trust for the Indians’ in the 1906 Act is not coextensive with ‘in trust for the
tribe’. . . . The 1906 Act’s purpose was to provide irrigation for the allotted, not tribal lands.” Id.
Many of the allotted lands—including the McKee Property—were eventually transferred to nonIndians. Indeed, “[t]oday, more than one-third of the land served by the [UIIP] is held in fee by
non-Indian successors to Indian allottees.” Id. at 1461 n.2.
And while the court has no doubt that at least some of disputed water is held in trust for
the Tribe, it is far from clear that all of the water is so held. Much like the 1906 Act, the 1923
Decree and Permanent Injunction in United States v. Cedarview Irrigation Co., No. 4427 (D.
Utah 1923), on which the Tribe relies, determined that that the United States held the water in
question “as Trustees of the Indians on the former Uintah and Ouray Indian Reservation.” Dkt.
No. 55-1 at 96–97. And although Winters v. United States held that when the United States
establishes an Indian Reservation, it impliedly reserves enough water to fulfill the purpose of the
reservation, see 207 U.S. 564, 576–77 (1908), it does not follow that all of the UIIP waters are
held in trust for the Tribe.
Indeed, as Defendants explain, it appears that the portion of the water that belongs to the
Tribe is currently a matter of dispute and litigation among the United States, the State of Utah,
and the Tribe:
although the Tribe is entitled to a yet to be determined amount of water to fulfill
the original purposes of its reservation, Winters v. United States, 207 U.S. 564
(1908), that amount of water has, despite the efforts of Congress and the State of
Utah, never been quantified. For instance, the Tribe contends that, under the Ute
Indian Water Compact, the water at issue here is part of the Tribe’s reserved
water. However, the Tribe has failed and refused to ratify the Ute Indian Water
Compact precluding quantification. In fact, the Tribe recently filed a lawsuit in
the United States District Court for the District of Columbia alleging that the
Tribe is entitled to more water than what is allocated in the Ute Indian Water
Compact.
2
Mr. McKee is not a member of the Tribe. See, e.g., Dkt. No. 55-1 at 46. Although the
land on which the Defendants use the disputed water is located within the exterior boundaries of
the Tribe’s Reservation, it is no longer tribal land—that is, it is neither owned by, nor held in
trust for, the Tribe. See Dkt. No. 55-1 at 49. As the Tribal Court found, “[t]he McKee Property is
land that was diminished from the Uintah Valley Reservation, i.e., ‘lands that passed from trust
to fee status.’” Id.; see also id. (finding that “[t]he McKee Property is situated in a checker-board
area of the Reservation”); Hagen v. Utah, 510 U.S. 399, 414 (1994); Ute Indian Tribe of the
Uintah and Ouray Reservation v. State of Utah, 114 F.3d 1513, 1529–31 (10th Cir. 1997). Until
2018, Mr. McKee also leased “40.000 acres, more or less” of tribal land through the Bureau of
Indian Affairs. Dkt. No. 55-4 at 138. It appears that the leased land was located approximately
three miles from the McKee Property. See Dkt. No. 60 at 25; Dkt. No. 60-1 at 93. The Tribe does
not argue, and the Tribal Court did not find, that Defendants used the water at issue here on this
leased land. See Dkt. No. 64 at 18.
The Tribe maintains that the Deep Creek Canal and Lateral 9, the waterways from which
Defendants divert the disputed water, “carr[y] the Ute Indian Tribe’s waters through a parcel of
[] McKee’s property.” Dkt. No. 55 at 23. The Tribe neither argues nor presents evidence that the
points from which Defendants divert water are located on tribal land or that the Defendants
otherwise enter tribal land to divert the water. A report attached to the Tribe’s motion for
summary judgment states that the points of diversion are located on the McKee Property (which
Dkt. No. 60 at 17 n.2 (cleaned up); see also id. at 9; Ute Indian Tribe of the Uintah and Ouray
Reservation v. United States, No. 1:18-cv-00546-CJN (D.D.C.). For purposes of resolving the
motions here, the court finds it unnecessary to attempt to unravel or fully understand the thorny
issues relating to the precise nature and scope of the Tribe’s interest in the disputed water and
waterways.
3
Mr. McKee owns in fee) as well as on a parcel located immediately north of the McKee
Property. See Dkt. No. 55-1 at 194. But the Tribe does not argue, and the Tribal Court did not
find, that the parcel immediately north of McKee’s property is tribal land. Cf. Dkt. No. 55-1 at 49
(finding that McKee’s property “is immediately adjacent to tribal trust lands to the east and
south.”) (emphasis added).
In concluding that it had jurisdiction over the Tribe’s suit against the McKee Defendants,
the Tribal Court reasoned as follows:
The Court has subject matter jurisdiction pursuant to the Ute Tribe's
inherent sovereign right to regulate activities of all non-Indians who willingly
enter into a consensual relationship with the Tribe or whose conduct imperils the
Tribe's political integrity, economic security, or health and welfare. See Montana
v. United States, 450 U.S. 544 (1981). The Court also has subject matter
jurisdiction pursuant to the Tribe's inherent sovereign right to (i) manage the use
of its territory and natural resources by both members and nonmembers, see New
Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335–36 (1983), and (ii) to
exclude nonmembers from the Tribe's lands and waters, including the irrigation
ditches and canals that transport tribal waters. See Water Wheel Camp
Recreational Area, Inc. v. LaRance, 642 F.3d 802, 811–14 (9th Cir. 2011).
Dkt. No. 55-1 at 67. On the merits, the Tribal Court found that Defendants had not proved
their right to use the disputed water. See id. The Tribal Court awarded the Tribe $142,718
in damages for the water misappropriated between 1999 and 2015. See id. at 67–68.
The Tribe then sued in this court to enforce the Tribal Court’s judgment. The Tribe seeks
[a] finding that the Ute Tribal Court judgment is entitled to recognition,
registration, and enforcement in accordance with federal law; [a]n order
recognizing, registering, and making enforceable the [tribal] court judgment in
this Court as a judgment of this Court; [a] writ of execution commanding the
United States Marshal to seize the nonexempt portion of the property of
Defendants sufficient to satisfy the judgment; [a]n order permitting post-judgment
discovery for the purpose of identifying property from which the judgment can be
satisfied; [a]n order forbidding any person from transferring, disposing, or
interfering with property of the Defendants from which the judgment can be
satisfied; [c]osts and disbursements of this proceeding, including without
4
limitation, attorneys’ fees, expenses, expert costs and all other costs; and [s]uch
other and further relief as the Court shall deem just and proper.
Dkt. No. 2 at 7–8.
The Tribe also seeks leave to amend its complaint to make clear that the Tribal Court’s
decision is at least partially rooted in a 1923 decree and permanent injunction entered by this
court in United States v. Cedarview Irrigation Co., No. 4427 (D. Utah 1923). See Dkt. No. 78 at
2. That ruling established the United States’ ownership of the water rights at issue in that
litigation, which apparently encompass the water at issue here. See Dkt 55 at 8–9. The Tribe was
not a party to that litigation, though it contends that the ruling established that the United States
owns the water in trust for the Tribe. Cf. supra n.1.
Based on its review of the Motion and the proposed Amended Complaint, the court finds
that its discussion of the 1923 decree is intended only to buttress the Tribe’s jurisdictional
allegations. While the proposed complaint does add to the prayer for relief a request for “[a]n
order enjoining the Defendants from diverting water from the Deep Creek Canal in violation of
the federal court decree and permanent injunction entered in United States v. Cedarview
Irrigation Co., No. 4427 (D. Utah 1923),” Dkt. No. 71-1 at 10, it does not assert any claims
arising out of the 1923 decree. Rather, it remains “an action to recognize, register, and enforce a
tribal court money judgment under principles of comity.” Dkt. No. 71-1 at 3. As the Tribe
explains in its briefing, the proposed amended complaint seeks to “enforce the Cedarview Decree
via this Court’s enforcement of the Tribal Court’s enforcement of the Cedarview Decree through
the Tribal Court suit,” Dkt. No. 78 at 3 (emphasis in original), not to assert a free-standing claim
that is independent of the Tribal Court’s judgment. See also Oral Argument at 1:30-2:00; 11:3012:00; 22:00–26:00.
Defendants and the Tribe have both moved for summary judgment. See Dkt. Nos. 55, 60.
5
II.
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Material facts are those which “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “dispute about a
material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. “[C]ourts are required to view the facts and draw reasonable
inferences in the light most favorable to the party opposing the summary judgment motion.”
Scott v. Harris, 550 U.S. 372, 378 (2007) (cleaned up).
III.
Defendants contend that this court lacks subject matter jurisdiction over this action
because the Tribe’s claims do not “aris[e] under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. The court disagrees.
To be sure, jurisdiction under Section 1331 turns on the well-pleaded complaint rule,
which generally “requires that the federal question appear on the face of the plaintiff's properly
pleaded complaint.” Garley v. Sandia Corp., 236 F.3d 1200, 1207 (10th Cir. 2001); see also,
e.g., Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152–54 (1908). And as
Defendants note, the complaint here seeks only recognition and enforcement of the Tribal
Court’s judgment. See Dkt. No. 2 at 7-8. But that is enough to confer federal-question
jurisdiction under Tenth Circuit precedent. As that court explained in MacArthur v. San Juan
County, “bound up in the decision to enforce a tribal court order” is “[t]he question of the
regulatory and adjudicatory authority of the tribes,” which “is a matter of federal law giving rise
to subject matter jurisdiction under 28 U.S.C. § 1331.” 497 F.3d 1057, 1066 (10th Cir. 2007).
6
Defendants attempt to distinguish the Tenth Circuit’s holding in MacArthur based on
language in footnote four of that opinion:
In this case, Plaintiffs argue that federal law has not divested the Navajo Nation of
its civil jurisdiction over Defendants’ activities—in fact, they allege federal law
has granted it such jurisdiction and seek a declaratory judgment saying as much.
As a result, we agree with the district court's observation that “the action . . . is
one arising under federal law because it turns on substantial questions of federal
law.”
497 F.3d at 1066 n.4 (emphasis added) (alteration in original). While the import of this footnote
is debatable, the court does not read it to limit the Tenth Circuit’s clear analysis and explicit
conclusion, in the text of its opinion, that a suit to enforce a Tribal Court judgment necessarily
raises questions of federal law “giving rise to subject matter jurisdiction under 28 U.S.C.
§ 1331.” Id. at 1066. See also Plains Commerce Bank v. Long Family Land & Cattle Co., 554
U.S. 316, 324 (2008) (noting that “whether a tribal court has adjudicative authority over
nonmembers is a federal question”); Coeur d'Alene Tribe v. Hawks, 933 F.3d 1052, 1059 & n. 7
(9th Cir. 2019). The court accordingly concludes that it has subject matter jurisdiction.
IV.
This court will recognize and enforce the Tribal Court’s judgment only if that court had
jurisdiction to decide the dispute before it. As the Tenth Circuit has explained, “recognition of a
tribal court judgment must be refused where . . . the tribal court lacked either personal or subject
matter jurisdiction.” McArthur, 497 F.3d at 1067.
Under governing Supreme Court precedent, “a tribe’s adjudicative jurisdiction does not
exceed its legislative jurisdiction.” Plains Commerce Bank, 554 U.S. at 330 (internal quotation
marks omitted). “[T]ribal court jurisdiction”—the Tribe’s “adjudicative” power—thus “‘turns
upon whether the actions at issue in the litigation are regulable by the tribe’” — the Tribe’s
“regulatory” power. Norton v. Ute Indian Tribe of the Uintah & Ouray Reservation, 862 F.3d
7
1236, 1245 (10th Cir. 2017) (quoting Nevada v. Hicks, 533 U.S. 353, 367 n.8 (2001)). The Tribal
Court’s jurisdiction in this case thus turns on whether the Tribe had authority to regulate
Defendants’ use of the water at issue here.2 For the reasons that follow, the court concludes that
the Tribe lacked such authority.
A.
Tribal sovereignty “centers on the land held by the tribe and on tribal members within the
reservation. Plains Commerce Bank, 554 U.S. at 327. While “[a] tribe’s power to prescribe the
conduct of tribal members has never been doubted,” New Mexico v. Mescalero Apache Tribe,
462 U.S. 324, 332 (1983), Mr. McKee is not a member of the Tribe. The Tribe’s power to
regulate Defendants’ use of the water at issue here thus turns on its authority to regulate
nonmembers. As explained below, that authority turns on where that conduct occurs and is
closely related to the Tribe’s control over “land held by the tribe.”
As this case illustrates, Indian reservations may contain two types of land. The first is
land that “belong[s] to the Tribe or [is] held by the United States in trust for the Tribe.” Montana
v. United States, 450 U.S. 544, 557 (1981). Courts frequently refer to such land as “tribal land.”
E.g., Plains Commerce Bank, 554 U.S. at 328. The second is land within the reservations that is
owned in fee simple by non-Indians. As the Supreme Court has explained, “[i]n the late 19th
century, the prevailing national policy of segregating lands for the exclusive use and control of
2
The parties also dispute whether the Tribal Court had authority under its own rules to
issue the judgment in this case. Although its initial brief appeared to suggest otherwise, see Dkt.
No. 55 at 21, the Tribe clarified in subsequent briefing and conceded at oral argument that the
Tribal Court’s rules cannot confer jurisdiction over Defendants if the Tribe lacks authority to
regulate their use of the disputed water, see Dkt. No. 64 at 10–11; Oral Argument at 28:00 –
30:00. The Tribal Court did not hold otherwise. See Dkt. No. 55-1 at 66–67. While any such
contention or holding would raise questions of federal law warranting review by this court, the
court will not otherwise second-guess the Tribal Court’s interpretation of its own rules.
8
the Indian tribes gave way to a policy of allotting those lands to tribe members individually.”
County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 253–
54 (1992). “Some of these allotted lands were subsequently acquired by persons not members of
[the tribes].” South Dakota v. Bourland, 508 U.S. 679, 682 (1993). “Non–Indians also acquired
fee title to some of the unallotted and ‘surplus’ lands on the reservation” in other ways as well,
including “pursuant to the Indian General Allotment Act of 1887.” Id. As a result, there are now
“millions of acres of non-Indian fee land located within the contiguous borders of Indian tribes.”
Plains Commerce Bank, 554 U.S. at 328.
“A tribe's power to exclude nonmembers entirely” from land that belongs to, or is held in
trust for, the tribe is “well established.” New Mexico v. Mescalero Apache Tribe, 462 U.S. 324,
333 (1983). And because “[n]onmembers who lawfully enter tribal lands remain subject to the
tribe’s power to exclude them[,] this power necessarily includes the lesser power to place
conditions on entry, on continued presence, or on reservation conduct.” Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130, 144 (1982).
But the Supreme Court’s “cases have made clear that once tribal land is converted into
fee simple, the tribe loses plenary jurisdiction over it.” Plains Commerce Bank, 554 U.S. at 328.
As the Court has explained, “when the tribe or tribal members convey a parcel of fee land ‘to
non-Indians, [the tribe] loses any former right of absolute and exclusive use and occupation of
the conveyed lands’” Id. (quoting South Dakota, 508 U.S. at 689) (emphasis in original). “This
necessarily entails ‘the loss of regulatory jurisdiction over the use of the land by others.’” Id.
(quoting South Dakota, 508 U.S. at 689). “As a general rule, then, the tribe has no authority
itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land.”
Id. (internal quotation marks omitted). And because a Tribe’s power to regulate nonmembers’
9
conduct arises from its right to exclude, it likewise follows that there is a “general rule that,
absent a different congressional direction, Indian tribes lack civil authority over the conduct of
nonmembers on non-Indian land within a reservation.” Strate v. A-1 Contractors, 520 U.S. 438,
446 (1997).
The Supreme Court has, however, “recognized two exceptions to this principle”—that is,
two “circumstances in which tribes may exercise ‘civil jurisdiction over non-Indians on their
reservations, even on non-Indian fee lands.’” Plains Commerce Bank, 554 U.S. at 329 (emphasis
added) (quoting Montana, 450 U.S. at 565). “First, ‘[a] tribe may regulate, through taxation,
licensing, or other means, the activities of nonmembers who enter consensual relationships with
the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.’”
Id. (quoting Montana, 450 U.S. at 565) (alteration in original). “Second, a tribe may exercise
‘civil authority over the conduct of non-Indians on fee lands within the reservation when that
conduct threatens or has some direct effect on the political integrity, the economic security, or
the health or welfare of the tribe.” Id. at 329–30 (quoting Montana, 450 U.S. at 566). “These
rules have become known as the Montana exceptions, after the case that elaborated them.” Id.
B.
As the Tribal Court recognized, the McKee Property is owned by Defendants in fee
simple. See Dkt. No. 55-1 at 42. And although the Tribal Court found that the land immediately
“to the east and south” of McKee’s Property is held in trust for the Tribe, Dkt. No. 55-1 at 49, it
made no such finding regarding the land immediately to the north of the McKee property, where
the Tribe’s evidence indicates some of the water diversion occurs, see id. at 194. Nor has the
Tribe argued or submitted evidence that the land immediate to the north of the McKee property
is tribal land.
10
Although there is thus no evidence that Defendants’ diversion or use of the disputed
water took place on land owned by, or held in trust for, the Tribe, the Tribe argues that “[t]he
Deep Creek Canal and Lateral 9 are trust property of the Tribe running on the Tribe’s easement
(a real property interest), placing Defendants’ entry and water theft from the Canal and Lateral 9
within the purview of the Tribe’s inherent sovereign power to exclude.” Dkt. No. 55 at 30
(emphasis removed); see also id. at 32–33 (arguing that diversion “occurred from tribal property
on an easement held in trust for the Tribe by the United States, thereby implicating the Tribe’s
inherent sovereign power to exclude”).
To the extent the Tribe’s argument rests on the existence of an easement, the court rejects
it. As the Supreme Court held just this year, “easements are not land, they merely burden land
that continues to be owned by another.” United States Forest Serv. v. Cowpasture River Pres.
Ass’n, 140 S. Ct. 1837, 1845 (2020). The fact that land owned in fee by nonmembers is burdened
by an easement does not change the ownership of that land or convert it into tribal property. 3
3
Although the Tribe cites the Supreme Court’s decision in Strate v. A-1 Contractors
elsewhere in its briefing, it does not cite this decision in support of this argument. Strate does,
however, provide at least superficial support for the Tribe’s argument: in that case the Court
addressed tribal jurisdiction over an accident that occurred on a state highway built on a right-ofway within a reservation. See 520 U.S. at 454–56. Although the land burdened by the right-ofway was held in trust for the tribes, the Court nevertheless “align[ed] the right-of-way, for the
purpose at hand, with land alienated to non-Indians” and thus held that the tribes could exercise
jurisdiction only pursuant to the Montana exceptions. Id. at 456. As the Court explained,
[f]orming part of the State's highway, the right-of-way is open to the public, and
traffic on it is subject to the State's control. The Tribes have consented to, and
received payment for, the State's use of the 6.59-mile stretch for a public
highway. They have retained no gatekeeping right. So long as the stretch is
maintained as part of the State's highway, the Tribes cannot assert a landowner's
right to occupy and exclude.
Id. at 455–56.
The irrigation ditches that cross the McKee property are a far cry from a highway that is
open to and traveled by the public and thus requires regular maintenance and policing. In
11
The Tribe also contends that just as it has the absolute right to exclude nonmembers from
tribal lands, it also has the right to exclude them from tribal resources. Although the Tribe’s
briefing is not entirely clear on this point, it appears that the tribal resources to which it refers are
the canals from which the water is taken and possibly the diverted water as well. See Dkt. No. 55
at 30–33; Dkt. No. 64 at 14–15.
Like the Tribal Court, see Dkt. No.55-1 at 67, the Tribe invokes the Supreme Court’s
decision in New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983), in support of its
position. To be sure, the Court in that case stated “that tribes have the power to manage the use
of its territory and resources by both members and nonmembers.” Id. at 335 (emphasis added).
But the Court in New Mexico was addressing only the Tribe’s broad power to prohibit or regulate
hunting and fishing by nonmembers on “lands belonging to the Tribe or held by the United
States in trust for [a] Tribe.” Id. at 331 (internal quotation marks omitted). Indeed, it expressly
distinguished—and recognized the continued vitality—of the Court’s holdings in other cases,
including Montana, that tribes lack such power to prohibit or regulate hunting and fishing by
addition, unlike the State, which maintained, policed, and exercised sole regulatory control of the
highway in Strate, it appears that neither the United States as trustee nor the Tribe exercises
exclusive regulatory control over the irrigation ditches and the water they carry. The 1906 statute
that authorized their creation stated “[t]hat such irrigation systems shall be constructed and
completed and held and operated, and water therefor appropriated under the laws of the State of
Utah,” 34 Stat. 375, and it appears that the State may retain at least some role in the allocation of
the water today, see Dkt. No. 60 at 9–10. In addition, while the State in Strate was undoubtedly
the sole owner of the right of way, the irrigations ditches here were constructed “to irrigate the
allotted lands of the Uncompahgre, Uintah, and White River Utes in Utah,” 34 Stat. 375
(emphasis added), and it is at least disputed whether they are held in trust exclusively for the
Tribe today. See supra n.1.
For all of these reasons, the court finds Strate’s analysis inapplicable to the easement
here.
12
nonmembers on “lands located within the reservation but not owned by the Tribe or its
members.” Id. at 330–32 (emphasis in original).
Nor do the decisions invoked by the Tribal Court and cited by the Tribe support a plenary
right to exclude nonmembers from, or regulate their use of, tribal resources located on land
owned in fee by nonmembers. To the contrary, these cases address regulation of nonmembers on
tribal land. See, e.g., Window Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 896 (9th Cir.
2017), as amended (Aug. 3, 2017) (concerning “claims against two public school districts
operating schools on leased tribal land.”); Water Wheel Camp Recreational Area, Inc. v.
LaRance, 642 F.3d 802, 811-14 (9th Cir. 2011) (“[T]he non-Indian activity in question occurred
on tribal land.”); Attorney’s Process & Investigation Servs., Inc. v. Sac & Fox Tribe of
Mississippi in Iowa, 609 F.3d 927, 940 (8th Cir. 2010) (addressing tribe’s authority to “regulate
[a non-Indian entity’s] entry and conduct upon tribal land”). Indeed, the court has found no
authority for the proposition that a tribe may assert regulatory authority over nonmembers’ use of
tribal resources on land held in fee by nonmembers except pursuant to the Montana exceptions.
The Tribe also raises policy arguments in support of its asserted authority to exclude
nonmembers from tribal resources as well as from tribal land. See Dkt. No. 64 at 14–15. These
arguments are not unreasonable, but the court concludes that they are unsupported by legal
authority and cannot be reconciled with Supreme Court precedent.
For all of these reasons, the court rejects the Tribe’s argument that it possesses plenary
regulatory power over Defendants’ diversion of the disputed water based on its power to
exclude.
13
C.
It follows that the Tribe has authority to regulate Defendants’ conduct only to the extent
permitted under the two Montana exceptions. The Tribe maintains that both exceptions apply
here.
Under the first Montana exception, “[a] tribe may regulate, through taxation, licensing, or
other means, the activities of nonmembers who enter consensual relationships with the tribe or
its members, through commercial dealing, contracts, leases, or other arrangements.” Montana,
450 U.S. at 565. The Tribe argues that this exception applies because “McKee’s land was
conveyed to his predecessors in interest under an original U.S. Patent” which provided that the
property rights conveyed were “subject to any vested and accrued water rights . . . and the rights
to ditches and reservoirs used in connection with such water rights” and reserved “a right of way
thereon for ditches or canals constructed by the authority of the United States.” Dkt. No. 55 at 23
(emphasis removed). According to the Tribe, because this patent subjects the McKee Property to
“the vested and accrued water rights of the Tribe and the rights-of-way for ditches and canals” it
creates a “consensual relationship” between Defendants and the Tribe. Id. at 24.
The court rejects this argument. As the Tribe explains, the patent was granted by the
United States to Defendants’ predecessors in interest. Neither Defendants nor the Tribe were
parties to the conveyance. To be sure, the patent appears to subject the McKee Property to an
easement that no doubt binds Defendants today. But Defendants are not bound because they have
entered into an agreement with the Tribe. Indeed there is no evidence that they have ever entered
into any agreement with the Tribe relating to the easement. Rather, Defendants are bound
because the easement reserved by the patent is a property right that runs with and burdens the
land they now own. The Tribe cites no authority applying the first Montana exception based on
14
analogous circumstances and the court is aware of none. For all of these reasons, the court finds
that the rights reserved by the patent do not establish a “consensual relationship” between
Defendants and the Tribe. Cf. Burlington Northern R.R. Co. v. Red Wolf, 196 F.3d 1059, 1064
(9th Cir. 1999) (“A right-of-way created by congressional grant is a transfer of a property interest
that does not create a continuing consensual relationship between a tribe and the grantee.”); State
of Mont. Dept. of Transp. V. King, 191 F.3d 1108, 1113 (9th Cir. 1999) (“[T]ransfers of property
interest between governmental entities create property rights; they generally do not create
continuing consensual relationships.”).
The Tribe also argues that Defendants’ lease of a different parcel of land from the Tribe
supports its authority to regulate Defendants’ conduct under the first Montana exception. But the
Tribe neither argues nor presents any evidence that Defendants used the disputed water on the
leased land. And the Supreme Court has held that “[a] nonmember’s consensual relationship in
one area . . . does not trigger tribal civil authority in another—it is not ‘in for a penny, in for a
Pound.’” Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 656 (2001). It follows that “[t]he
mere fact that a nonmember has some consensual commercial contacts with a tribe does not
mean that the tribe has jurisdiction over all suits involving that nonmember, or even over all such
suits that arise within the reservation; the suit must also arise out of those consensual contacts.”
Philip Morris USA, Inc. v. King Mountain Tobacco Co., Inc., 569 F.3d 932, 941–42 (9th Cir.
2009); see also MacArthur v. San Juan Cty., 309 F.3d 1216, 1223–24 (10th Cir. 2002) (holding
that an attorney was not subject to suit in the Navajo Nation court merely because he was
admitted to practice there). To be sure, the lease was “subject to the lessee (Defendant McKee)
complying with ‘all applicable laws, ordinances, rules, regulations, and other legal requirements,
including tribal laws and leasing policies.’” Dkt. No. 55 at 25 (emphasis removed). By signing
15
this agreement, Mr. McKee no doubt consented to broad Tribal jurisdiction over his use of the
leased property. But under binding Supreme Court precedent, this court cannot construe the lease
to confer tribal jurisdiction over conduct wholly unrelated to the lease. The court thus concludes
that first Montana exception does not support jurisdiction here.
Under the second Montana exception, a tribe may exercise “civil authority over the
conduct of non-Indians on fee lands within [the] reservation when that conduct threatens or has
some direct effect on the political integrity, the economic security, or the health or welfare of the
tribe.” Montana, 450 U.S. at 566. “The second Montana exception may be invoked only if the
challenged conduct could ‘fairly be called catastrophic for tribal self-government.’” Norton v.
Ute Indian Tribe of the Uintah & Ouray Reservation, 862 F.3d 1236, 1246 (10th Cir. 2017)
(quoting Plains Commerce Bank, 554 U.S. at 341).4 In Plains Commerce Bank, the Supreme
Court gave one example of what is not considered catastrophic: “[t]he sale of formerly Indianowned fee land to a third party is quite possibly disappointing to the Tribe, but cannot fairly be
called ‘catastrophic’ for tribal self-government.” 554 U.S. at 341.
The court does not doubt the vital importance of water in the arid lands on which the
Reservation is located. See, e.g., Winters v. United States, 207 U.S. 564, 576 (1908). But
4
Noting the Supreme Court’s observation in Plains Commerce Bank that “[n]either the
District Court nor the Court of Appeals relied for its decision on the second Montana exception,”
the Tribe seeks to dismiss the Court’s narrow formulation of the scope of the second exception in
that case as dicta. Dkt. No. 64 at 19 (quoting Plains Commerce Bank, 554 U.S. at 340–41). But
regardless of what the lower courts may have done, the Supreme Court squarely held this
exception did not apply. See Plains Commerce Bank, 554 U.S. at 341 (“Accordingly, we hold the
second Montana exception inapplicable in this case.”). In addition, the Tenth Circuit followed
this formulation in Norton in accepting one claim and rejecting another. Even if the Court’s
formulation were “dicta all the way down,” moreover, Ramos v. Louisiana, 140 S. Ct. 1390,
1400 (2020), lower courts are “bound by Supreme Court dicta almost as firmly as by the Court’s
outright holdings, particularly when the dicta is recent and not enfeebled by later statements,”
Utah Republican Party v. Cox, 892 F.3d 1066, 1079 (10th Cir. 2018) (cleaned up).
16
applying the standard from Plains Commerce Bank and Norton, the court cannot say that the
diversion of a total of $142,718 worth of water over the course of sixteen years can “fairly be
called catastrophic for tribal self-government.”5
*
*
*
Because the Tribe lacks authority to regulate Defendants’ diversion of the disputed water,
the Tribal court lacked jurisdiction over this dispute. Defendants’ motion for summary judgment
is accordingly granted, and Plaintiff’s motion is denied.
V.
In addition to moving for summary judgment, the Tribe has filed two other motions. As
mentioned earlier, the Tribe seeks leave to amend its complaint to clarify that, by enforcing the
Tribal Court’s decision, it will also be enforcing a decree and permanent injunction entered by
this court in 1923. See supra at 4–5. These allegations regarding the 1923 Decree are
unnecessary to establish this court’s subject matter jurisdiction, however—as this court has
already held, it has federal question jurisdiction here because the Tribe seeks to enforce a Tribal
Court judgment. Conversely, these allegations do not cure the Tribal Court’s lack of jurisdiction
over the conduct at issue here—nothing in the Montana exceptions (or any other source of law of
which the court is aware) authorizes a Tribal Court to enforce a federal court judgment in a case
in which it otherwise lacks jurisdiction. And as discussed above, the proposed amended
complaint does not allege any freestanding claims arising out of the 1923 Decree—rather, it
remains an “an action to recognize, register, and enforce a tribal court money judgment under
principles of comity.” Dkt. No. 71-1 at 3. Even if the Tribe were permitted to amend its
5
It is not clear that the Tribe seriously contends otherwise. In all of the Tribe’s filings in
this case, the court has found the word “catastrophic” only once—in a paragraph arguing that the
Supreme Court’s use of this word should be disregarded as dicta. See Dkt. No. 64 at 19.
17
complaint, then, summary judgment for Defendants would still be appropriate. The court
accordingly denies the motion for leave to amend as futile. See Bylin v. Billings, 568 F.3d 1224,
1229 (10th Cir. 2009).
The Tribe also filed a motion to clarify Defendants’ diversion and use of the disputed
water. See Dkt. No. 83. The court grants this motion and has relied on the Tribe’s clarification in
this opinion. Although the Tribe’s clarifications were helpful, they ultimately did not change the
court’s analysis of the Tribal Court’s authority.
VI.
The court emphasizes the limited scope of this decision. The court holds only that the
Tribal Court lacked jurisdiction to adjudicate the dispute between the Tribe and Defendants. It
does not hold, and should not be understood to suggest, that Defendants’ use of the water is
lawful or justified. The court simply does not reach that issue. The court’s decision also does not
bar the Tribe from bringing suit against Defendants in state or federal court. Nor is it the
province of this court to evaluate the wisdom or justice of the United States’ past and present
stewardship of the water on which the Tribe depends for its existence and livelihood or of the
limitations the Supreme Court and Tenth Circuit have imposed on tribal jurisdiction. Rather, this
court’s role is to apply the controlling decisions of those superior tribunals as faithfully as it is
able to the facts presented here.
*
*
*
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED.
Plaintiff’s Motion for Summary Judgment is DENIED. Plaintiff’s Motion for Leave to Clarify is
GRANTED, but its Motion for Leave to Amend is DENIED. This action will be DISMISSED
WITH PREJUDICE.
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IT IS SO ORDERED.
DATED this 28th day of August, 2020.
BY THE COURT:
Howard C. Nielson, Jr.
United States District Judge
19
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