Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah

FILED
United States Court of Appeals
Tenth Circuit
June 16, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UTE INDIAN TRIBE OF THE
UINTAH AND OURAY
RESERVATION,
Plaintiff–Counterclaim Defendant–
Appellant/Cross-Appellee,
v.
STATE OF UTAH; DUCHESNE
COUNTY, a political subdivision of
the State of Utah,
Defendants–Counterclaimants–
Appellees in No. 14-4028 and
Defendants–Counterclaimants in
No. 14-4031,
Nos. 14-4028 and 14-4031
UINTAH COUNTY, a political
subdivision of the State of Utah,
Defendant–Counterclaimant–
Third-Party Plaintiff–Appellee/
Cross-Appellant,
ROOSEVELT CITY, a municipal
corporation; DUCHESNE CITY, a
municipal corporation; MYTON, a
municipal corporation,
Defendants,
BRUCE IGNACIO, Chairman of the
Ute Tribal Business Committee, in his
official capacity,
Defendant–Third-Party Defendant,
and
BUSINESS COMMITTEE FOR THE
UTE TRIBE OF THE UINTAH AND
OURAY RESERVATION; GORDON
HOWELL, Chairman of the Business
Committee; RONALD J. WOPSOCK,
Vice Chairman of the Ute Tribal
Business Committee, in his official
capacity; STEWART PIKE, member
of the Ute Tribal Business Committee, Nos. 14-4028 and 14-4031
in his official capacity; TONY (continued)
SMALL, member of the Ute Tribal
Business Committee, in his official
capacity; PHILIP CHIMBURAS,
member of the Ute Tribal Business
Committee, in his official capacity;
PAUL TSOSIE, Chief Judge of the
Ute Tribal Court, in his official
capacity; WILLIAM REYNOLDS,
Judge of the Ute Tribal Court, in his
official capacity,
Third-Party Defendants.
UTE INDIAN TRIBE OF THE
UINTAH AND OURAY
RESERVATION, Utah, a federally
recognized Indian Tribe,
Plaintiff–Appellant, No. 14-4034
v.
STATE OF UTAH; WASATCH
COUNTY, a political subdivision of
2
the State of Utah; GARY HERBERT,
in his capacity as Governor of Utah;
SEAN D. REYES, in his capacity as
Attorney General of Utah; SCOTT
SWEAT, in his capacity as County
Attorney for Wasatch County, Utah;
TYLER J. BERG, in his capacity as
Assistant County Attorney for No. 14-4034
Wasatch County, Utah, (continued)
Defendants–Appellees.
UINTAH COUNTY,
Amicus Curiae.
Appeal from the United States District Court
for the District of Utah
(D.C. Nos. 2:75-CV-00408-BSJ and 2:13-CV-01070-DB-DBP)
Frances C. Bassett and Jeffrey S. Rasmussen (Sandra L. Denton, Thomas W.
Fredericks, Todd K. Gravelle, Matthew J. Kelly, and Jeremy J. Patterson with
them on the briefs) of Fredericks Peebles & Morgan LLP, Louisville, Colorado,
for the Ute Indian Tribe of the Uintah and Ouray Reservation.
Parker Douglas, Utah Federal Solicitor (Randy S. Hunter and Katharine H.
Kinsman, Assistant Utah Attorneys General, and Bridget Romano, Utah Solicitor
General, with him on the briefs), Salt Lake City, Utah, for the State of Utah, Gary
Herbert, and Sean D. Reyes.
Jesse C. Trentadue (Britton R. Butterfield, Carl F. Huefner, and Noah M.
Hoagland, with him on the briefs) of Suitter Axland, PLLC, Salt Lake City, Utah,
for Duchesne County, Wasatch County, Scott Sweat, and Tyler J. Berg.
E. Blaine Rawson of Ray Quinney & Nebeker P.C., Salt Lake City, Utah
(Greggory J. Savage, Matthew M. Cannon, and Calvin R. Winder of Ray Quinney
& Nebeker, Salt Lake City, Utah, and G. Mark Thomas, Uintah County Attorney,
3
and Jonathan A. Stearmer, Chief Deputy Uintah County Attorney–Civil, Vernal,
Utah, with him on the briefs), for Uintah County.
Before HARTZ, GORSUCH, and MORITZ, Circuit Judges.
GORSUCH, Circuit Judge.
In our layered system of trial and appellate courts everyone’s assured at
least two chances to air a grievance. Add to this the possibility that a lawsuit
might bounce back to the trial court on remand or even rebound its way to appeal
yet again — or the possibility that an issue might win interlocutory review — and
the opportunities to press a complaint grow abundantly. No doubt our complex
and consuming litigation wringer has assumed the shape it has so courts might
squeeze as much truth as possible out of the parties’ competing narratives. But
sooner or later every case must come to an end. After all, that’s why people bring
their disputes to court in the first place: because the legal system promises to
resolve their differences without resort to violence and supply “peace and repose”
at the end of it all. S. Pac. R.R. Co. v. United States, 168 U.S. 1, 49 (1897). For
a legal system to meet this promise, of course, both sides must accept — or, if
need be, they must be made to respect — the judgments it generates. Most people
know and readily assent to all this. So it’s pretty surprising when a State and
several of its counties need a reminder. But that’s what this appeal is all about.
4
*
Nearly forty years ago the Ute Tribe filed a lawsuit alleging that Utah and
several local governments were unlawfully trying to displace tribal authority on
tribal lands. After a decade of wrangling in the district court and on appeal, this
court agreed to hear the case en banc. In the decision that followed, what the
parties refer to as Ute III, the court ruled for the Tribe and rejected Utah’s claim
that congressional action had diminished three constituent parts of Ute tribal
lands — the Uncompahgre Reservation, the Uintah Valley Reservation, and
certain national forest areas. See Ute Indian Tribe v. Utah, 773 F.2d 1087, 1093
(10th Cir. 1985) (en banc). When the Supreme Court then denied certiorari, that
“should have been the end of the matter.” United States’ Mem. in Supp. of Ute
Indian Tribe’s Mot. for Injunctive Relief 3, Supplemental App. 8 (Nov. 23, 1992).
It wasn’t. Instead, state officials chose “to disregard the binding effect of
the Tenth Circuit decision in order to attempt to relitigate the boundary dispute in
a friendlier forum.” Id. As a vehicle for their effort, they decided to prosecute
tribal members in state court for conduct occurring within the tribal boundaries
recognized by Ute III. This, of course, the State had no business doing. Ute III
held the land in question to be “Indian country.” See 773 F.3d at 1093; 18 U.S.C.
§ 1151 (defining “Indian country”). And within Indian country, generally only
the federal government or an Indian tribe may prosecute Indians for criminal
offenses. See DeCoteau v. Dist. County Court, 420 U.S. 425, 427 & n.2 (1975);
5
Solem v. Bartlett, 465 U.S. 463, 465 n.2 (1984). True, states sometimes may
prosecute “crimes by non-Indians against non-Indians and victimless crimes by
non-Indians.” Bartlett, 465 U.S. at 465 n.2 (citation omitted). But unless
Congress provides an exception to the rule — and it hasn’t here — states possess
“no authority” to prosecute Indians for offenses in Indian country. Cheyenne-
Arapaho Tribes v. Oklahoma, 618 F.2d 665, 668 (10th Cir. 1980); 18 U.S.C.
§ 1162 (allowing certain states but not Utah to exercise jurisdiction over crimes
committed by Indians in Indian country).
Disregarding all of this, state officials proceeded with their prosecutions
anyway and soon one wended its way to the Utah Supreme Court. Declining to
acknowledge or abide “traditional . . . principles of comity, . . . res judicata and
collateral estoppel,” the State argued that the very same congressional actions Ute
III said did not diminish tribal territory did diminish at least a part of the Uintah
Valley Reservation. United States’ Mem., supra, at 4, Supplemental App. 9. And
with this much at least the Utah Supreme Court eventually agreed. See State v.
Perank, 858 P.2d 927 (Utah 1992); State v. Hagen, 858 P.2d 925 (Utah 1992).
Then the United States Supreme Court — despite having denied review in Ute III
and despite the fact the mandate in that case had long since issued — granted
certiorari and agreed too. See Hagen v. Utah, 510 U.S. 399, 421-22 (1994).
This strange turn of events raised the question: what to do with the
mandate of Ute III? Keeping it in place could leave the United States Supreme
6
Court’s decision in Hagen to control only cases arising from Utah state courts and
not federal district courts, a pretty unsavory possibility by anyone’s reckoning.
So in a decision the parties call Ute V, this court elected to recall and modify Ute
III’s mandate. See Ute Indian Tribe v. Utah, 114 F.3d 1513, 1527-28 (10th Cir.
1997). Because Hagen addressed the Uintah Valley Reservation, Ute V deemed
that particular portion of Ute tribal lands diminished — and diminished according
to the terms Hagen dictated. So much relief was warranted, this court found, to
“reconcile two inconsistent boundary determinations and to provide a uniform
allocation of jurisdiction among separate sovereigns.” Id. at 1523.
Naturally, the State wanted more. It asked this court to extend Hagen’s
reasoning to the national forest and Uncompahgre lands and hold them diminished
too. But Ute V rejected this request. Upsetting a final decision by recalling and
modifying a mandate is and ought to be a rare and disfavored thing in a legal
system that values finality. Id. at 1527. Though such extraordinary relief might
have been warranted to give meaning to Hagen’s holding, Ute V explained, it
wasn’t warranted to extend Hagen’s reasoning to new terrain — even if doing so
might happen to achieve a “more accurate” overall result. Id. at 1523. After all,
by this point the parties’ litigation was so old it had come of age and Ute III itself
had been settled for years. “If relitigation were permitted whenever it might
result in a more accurate determination, in the name of ‘justice,’ the very values
served by preclusion would be quickly destroyed.” Id. (quoting 18 Charles A.
7
Wright et al., Federal Practice and Procedure § 4426, at 265 (1981)). Following
this court’s decision in Ute V, the Supreme Court again denied certiorari and,
really, that should have been the end of it.
But as you might have guessed by now, the State and its counties are back
at it. Just as they did in the 1990s, they are again prosecuting tribal members in
state court for offenses occurring on tribal lands — indeed, on the very lands Ute
V said remain Indian country even after Hagen. Seeking to avoid a replay of the
“jurisdictional chaos” the State invited the last time around, United States’ Mem.,
supra, at 4, Supplemental App. 9, this time the Tribe filed suit in federal court.
As clarified at oral argument, the Tribe seeks from this suit a permanent
injunction prohibiting the State and its counties from pursuing criminal
prosecutions of Indians in state court for offenses arising in areas declared by Ute
III and V to be Indian country — and prohibiting the State and its subdivisions
from otherwise relitigating matters settled by those decisions. Toward these ends
and as an initial matter, the Tribe asked the district court for a preliminary
injunction against the State, Wasatch County, and various officials to halt the
prosecution of a tribal member, Lesa Jenkins, in Wasatch County Justice Court
for alleged traffic offenses in the national forest area that Ute III and V
recognized as Indian country. A sort of test case, if you will. In return, the State
and Uintah and Duchesne Counties fired off counterclaims of their own alleging
that the Tribe has somehow improperly infringed on their sovereignty.
8
Before us now are three interlocutory but immediately appealable collateral
orders this latest litigation has spawned. The first addresses the Tribe’s request
for a preliminary injunction. The latter two address claims of immunity: the
Tribe’s claim of immunity from the counterclaims and Uintah County’s claim of
immunity from the Tribe’s suit. In all three decisions the district court denied the
requested relief. But, as it turns out, the Tribe’s arguments on all three points are
well taken: the district court should have issued a preliminary injunction and
must do so now; the Tribe is shielded by sovereign immunity; and Uintah County
is not.
*
We begin with the Tribe’s motion for a preliminary injunction barring the
State and Wasatch County from prosecuting Ms. Jenkins in state court. In one
sentence and without elaboration, the district court held that the Tribe failed to
demonstrate that it would suffer an irreparable harm without an injunction and
denied relief on that basis alone.
We cannot agree. The Tenth Circuit has “repeatedly stated that . . . an
invasion of tribal sovereignty can constitute irreparable injury.” Wyandotte
Nation v. Sebelius, 443 F.3d 1247, 1255 (10th Cir. 2006). In Wyandotte Nation
itself, this court upheld a preliminary injunction preventing Kansas from
enforcing state gaming laws on a tract of tribal land because of the resulting
infringement on tribal sovereignty. Id. at 1254-57; see also Prairie Band of
9
Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250-51 (10th Cir. 2001). And we
can divine no reason or authority that might justify a different result here, where
the invasion of tribal sovereignty is so much greater.
Indeed, the harm to tribal sovereignty in this case is perhaps as serious as
any to come our way in a long time. Not only is the prosecution of Ms. Jenkins
itself an infringement on tribal sovereignty, but the tortured litigation history that
supplies its backdrop strongly suggests it is part of a renewed campaign to undo
the tribal boundaries settled by Ute III and V. Neither do the defendants’ briefs
offer any reason to hope otherwise. The State supplies just two conclusory
paragraphs in defense of the district court’s conclusory irreparable injury
conclusion. And when it comes to the Tribe’s charge that the State is reviving its
efforts to undo tribal boundaries, the State simply brushes off the worry as
“speculative.” But there’s nothing speculative about Utah’s past disregard of this
court’s decisions and nothing speculative about the fact Ms. Jenkins’s prosecution
amounts to the same thing now. For its part, Wasatch County exhibits even less
subtlety about its intentions, going so far as to argue that the Tribe may not
exercise authority over any lands in Utah because (in part) the State was once “a
separate, independent nation, the State of Deseret” with “its own Constitution”
that didn’t recognize Indian lands or tribal authority. Wasatch Appellees’ Br. 10-
11. Never mind Ute III and V. And never mind the United States Constitution
and the authority that document provides the federal government to regulate
10
Indian affairs. On the record before us, there’s just no room to debate whether
the defendants’ conduct “create[s] the prospect of significant interference with
[tribal] self-government” that this court has found sufficient to constitute
“irreparable injury.” Prairie Band, 253 F.3d at 1250-51 (second alteration in
original) (internal quotation marks omitted). By any fair estimate, that appears to
be the whole point and purpose of their actions.
What about the other considerations that traditionally inform preliminary
injunction proceedings — the merits, the parties’ claimed and competing harms,
and the public interest? See id. at 1246. The State and County say these elements
support them and provide alternative grounds on which we might affirm the
district court and deny the Tribe’s request for a preliminary injunction. But it
turns out the district court didn’t rest its decision on these other grounds for good
reason.
Take the merits. At the risk of repetition, no one disputes that Ms. Jenkins
is an enrolled member of the Tribe, that she is being prosecuted in Utah state
court by local officials, or that her alleged offenses took place within the
reservation boundaries established in Ute III and V. As we’ve seen too, it’s long
since settled that a state and its subdivisions generally lack authority to prosecute
Indians for criminal offenses arising in Indian country. See supra at 5-6. To be
sure, and as the defendants point out, Ms. Jenkins was stopped and cited for
committing a traffic offense on a right-of-way running through Indian lands. But
11
both federal statutory law and Ute V expressly hold — and the defendants
themselves don’t dispute — that “rights-of-way running through [a] reservation”
are themselves part of Indian country. 18 U.S.C. § 1151; Ute V, 114 F.3d at
1529. Of course, and as the State and County also observe, states may exercise
civil jurisdiction over non-Indians for activities on rights-of-way crossing Indian
country. See Strate v. A-1 Contractors, 520 U.S. 438, 442 (1997). And they may,
in certain circumstances, enter Indian lands to investigate off-reservation crimes.
See Nevada v. Hicks, 533 U.S. 353, 366 (2001). But these observations are beside
the point as well, for the preliminary injunction request in this case concerns only
the criminal prosecution of Indians in state court for crimes committed in Indian
country. In the end, then, the defendants offer no legal authority for their
position and face a considerable and uniform body of authority stacked against it.
Any consideration of the merits would seem to favor the Tribe — and favor it
strongly.
Lacking a viable legal argument the defendants reply with a policy concern.
The Tribe’s position, they say, would require state officers patrolling rights-of-
way to engage in racial profiling because they would have to hazard a guess about
whether a driver is or isn’t an Indian before pulling her over. But even assuming
the relevance of this concern, it is misplaced. After all, officers could just as
easily (and lawfully) inquire into a motorist’s tribal membership after she is
stopped for a suspected offense. See United States v. Patch, 114 F.3d 131, 133-
12
34 (9th Cir. 1997). Indeed, it seems Utah’s law enforcement agencies are already
doing just that. See Jones v. Norton, 3 F. Supp. 3d 1170, 1192 (D. Utah 2014).
And, in any event, the Tribe’s preliminary injunction request doesn’t complain
about Ms. Jenkins’s stop, but seeks only to halt her continued prosecution now
that the State and County know she’s a tribal member. 1
That brings us to the last two elements of the preliminary injunction test: a
comparison of the potential harms that would result with and without the
injunction and a consideration of public policy interests. Prairie Band, 253 F.3d
at 1250. Here again there’s no question who has the better of it. On the Tribe’s
side of the ledger lies what this court has described as the “paramount federal
policy” of ensuring that Indians do not suffer interference with their efforts to
“develop . . . strong self-government.” Seneca-Cayuga Tribe v. Oklahoma ex rel.
Thompson, 874 F.2d 709, 716 (10th Cir. 1989); see also Prairie Band, 253 F.3d at
1253. Against this, the State and Wasatch County argue an injunction would
impede their ability to ensure safety on public rights-of-way. But this concern “is
not as portentous as [they] would have it.” Prairie Band, 253 F.3d at 1253. It
isn’t because nothing in the requested temporary injunction would prevent the
1
Similarly, the State and County raise the possibility that Ms. Jenkins’s
alleged offenses (driving without an ignition interlock, for example) are
“continuing” offenses that might have occurred both on and off tribal lands. But
whatever other problems this argument might confront, it fails on its facts. It’s
undisputed that Ms. Jenkins stands charged in state court for conduct that
occurred within tribal lands and no one has pointed to any evidence in the record
indicating that any part of the offense continued off-reservation.
13
State and County from patrolling roads like the ones on which Ms. Jenkins was
stopped, from stopping motorists suspected of traffic offenses to verify their tribal
membership status, from ticketing and prosecuting non-Indians for offenses
committed on those roads, from referring suspected offenses by Indians to tribal
law enforcement, or from adjudicating disputes over the Indian status of accused
traffic offenders when meaningful reasons exist to question that status. Instead,
the temporary injunction would simply prohibit the State and County from
prosecuting Ms. Jenkins and perhaps other tribal members for offenses in Indian
country — something they have no legal entitlement to do in the first place. In
this light, the defendants’ claims to injury should an injunction issue shrink to all
but “the vanishing point.” Seneca-Cayuga, 874 F.2d at 716.
Though the traditional injunction considerations favor the Tribe, even this
doesn’t end the matter. Wasatch County (without support from the State) argues
that — whatever those considerations might suggest — the Anti-Injunction Act
forbids the issuance of any injunction in this case. The County notes, quite
rightly, that out of respect for comity and federalism the AIA usually precludes
federal courts from enjoining ongoing state court proceedings like Ms. Jenkins’s
Wasatch County prosecution. 28 U.S.C. § 2283. But this overlooks an important
exception to the rule: the AIA also expressly authorizes federal courts to enjoin
state proceedings when it’s necessary “to protect or effectuate” a previous federal
judgment. Id. This “relitigation exception,” as it’s called, allows “a federal court
14
to prevent state litigation of an issue that previously was presented to and decided
by the federal court.” Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147
(1988). And that, of course, is exactly what the Tribe asks us to do here. In Ute
III and V this court held that certain national forest lands remain part of the
Tribe’s reservation — and thus Indian country. See Ute V, 114 F.3d at 1528-29;
Ute III, 773 F.2d at 1089-90. The prosecution of Ms. Jenkins seeks to reopen that
judgment and contest whether the same national forest lands, in which her alleged
traffic offenses occurred, are Indian country. So relief isn’t just called for under
traditional preliminary injunction principles, it’s statutorily authorized by the
AIA. Admittedly, the County tries to suggest that the current prosecution raises
at least one “new” issue — whether it possesses the authority to try Indians for
crimes on rights-of-way running through tribal lands. But this issue is no new
issue at all for, as we’ve seen, Ute V expressly resolved it. See supra at 11-12;
Ute V, 114 F.3d at 1529; 18 U.S.C. § 1151.
Eventually accepting as it must that it really does want to relitigate settled
issues, the County replies that it’s entitled to do so because it wasn’t a party to
Ute III or V. But here we encounter another sort of problem. It’s not just parties
who are bound by prior decisions: those in privity with them often are too, and
counties are usually thought to be in privity with their states for preclusion
15
purposes when the state has lost an earlier suit. 2 Of course “privity is but a
label,” but it is a useful label “convey[ing] the existence of a relationship
sufficient to give courts confidence that the party in the former litigation was an
effective representative of the current party’s interests.” Entek GRB, LLC v. Stull
Ranches, LLC, 763 F.3d 1252, 1258 (10th Cir. 2014). Many courts have already
applied these preclusion principles in the AIA context. 3 And the County offers no
reason to think it should be immune from their force and no reason to think Utah
failed to serve as an effective representative of its interests in Ute III and V. In
saying this much we don’t mean to exclude the possibility that a county and state
sometimes lack a sufficient identity of interests to warrant the application of
preclusion principles; we mean to suggest only that nobody has given us any
reason to think that possibility is realized here.
Where the County fails with the AIA the State suggests it might succeed
with Younger v. Harris, 401 U.S. 37 (1971). As Utah observes, the AIA isn’t the
only legal authority that can induce a federal court to abstain from enjoining
ongoing state court proceedings: freestanding federalism principles, like those
2
See, e.g., County of Boyd v. US Ecology, Inc., 48 F.3d 359, 361-62 (8th Cir.
1995); Nash County Bd. of Ed. v. Biltmore Co., 640 F.2d 484, 493-97 (4th Cir.
1981); 18A Charles Alan Wright et al., Federal Practice and Procedure § 4458,
at 558-59 n.9 (2d ed. 2002) (collecting cases).
3
See, e.g., Vazquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 675-77 (5th
Cir. 2003); First Ala. Bank of Montgomery, N.A. v. Parsons Steel, Inc., 825 F.2d
1475, 1486 (11th Cir. 1987); Kerr-McGee Chem. Corp. v. Hartigan, 816 F.2d
1177, 1180 (7th Cir. 1987).
16
embodied in Younger, often counsel the same course. But for Younger abstention
to apply, there must be “an ongoing state judicial . . . proceeding, the presence of
an important state interest, and an adequate opportunity to raise federal claims in
the state proceedings.” Seneca-Cayuga, 874 F.2d at 711. And the second of
these conditions is where Utah falters in this case because, again, it hasn’t
identified any legitimate state interest advanced by its attempt to relitigate
boundary decisions by prosecuting Indians for crimes in Indian country. Indeed,
much like the AIA, Younger doctrine expressly authorizes federal courts to enjoin
the relitigation of settled federal decisions in cases, like ours, of “proven
harassment.” Perez v. Ledesma, 401 U.S. 82, 85 (1971). And even absent a
campaign of relitigation, this court in Seneca-Cayuga held that where, as here,
states seek to enforce state law against Indians in Indian country “[t]he
presumption and the reality . . . are that federal law, federal policy, and federal
authority are paramount” and the state’s interests are insufficient “to warrant
Younger abstention.” 874 F.2d at 713-14. Neither does Utah offer any means by
which we might fairly distinguish or disregard the teachings of Younger, Perez, or
Seneca-Cayuga.
With all the defendants’ efforts to defend the district court’s decision on
alternative grounds now fully explained and explored they seem to us to have
more nearly the opposite of their intended effect. We finish persuaded that all of
the traditional preliminary injunction factors favor not the defendants but the
17
Tribe, that the federalism concerns embodied in the AIA and Younger do not
direct otherwise, and that a remand to the district court with instructions to enter
a preliminary injunction is warranted.
*
Only the two questions of sovereign immunity remain for resolution and
neither requires so much elaboration. We begin with the Tribe’s motion to
dismiss the counterclaims brought by Utah and Duchesne and Uintah Counties.
It’s long since settled that “an Indian tribe is subject to suit only where Congress
has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe v.
Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). This principle extends to
counterclaims lodged against a plaintiff tribe — even compulsory counterclaims.
Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509-
10 (1991). And it applies with just as much force to claims or counterclaims
brought by states as by anyone else. See Michigan v. Bay Mills Indian Cmty., 134
S. Ct. 2024, 2031 (2014). No one before us suggests that Congress has authorized
the counterclaims here, so everything turns on whether the Tribe itself has waived
its immunity.
The State and Counties argue that the Tribe did just that in three
agreements the parties signed in the aftermath of Ute V: the Disclaimer, Referral,
and Mutual Assistance Agreements, to use the parties’ shorthand. But we don’t
see how that’s the case. A tribe’s waiver of immunity must be expressed “clearly
18
and unequivocally.” Nanomantube v. Kickapoo Tribe, 631 F.3d 1150, 1152 (10th
Cir. 2011). Yet the Referral Agreement expired by its own terms in 2008 and the
Tribe terminated the Disclaimer Agreement in 2011 — well before the defendants
brought their counterclaims. Neither do the State and Counties explain how these
agreements, even assuming they might once have authorized suit, continue to do
so much so long after they’ve expired. Instead, the defendants leave that
possibility to the court’s imagination — and that’s never a substitute for a clear
and unequivocal waiver of immunity.
What about the Mutual Assistance Agreement? Far from waiving
immunity, it contains a section entitled “No Waiver of Sovereignty or Jurisdiction
Intended.” According to that provision, “no acquiescence in or waiver of claims
of rights, sovereignty, authority, boundaries, jurisdiction, or other beneficial
interests is intended by this Agreement,” and “no rights or jurisdiction shall be
gained or lost at the expense of the other parties to this Agreement.” Yes, the
State and Counties point to another section of the agreement that says “[o]riginal
jurisdiction to hear and decide any disputes or litigation arising pursuant to or as
a result of this Agreement shall be in the United States District Court for the
District of Utah.” And, yes, this language is similar to language courts have
sometimes held sufficient to waive tribal immunity. See, e.g., C & L Enters., Inc.
v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 415, 418-23 (2001);
Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21,
19
30-31 (1st Cir. 2000). But none of those cases confronted agreements with a
separate section expressly asserting sovereign immunity like the one here. And
trying to make sense of the whole document before us without rendering any
portion of it a nullity — always our aspiration when interpreting contracts — we
cannot say it clearly and unequivocally waives sovereign immunity. Instead, the
language the defendants cite seems to us best understood as a forum selection
clause. Cf. Santana v. Muscogee (Creek) Nation ex rel. River Spirit Casino, 508
F. App’x 821, 823 (10th Cir. 2013) (holding that a compact provision “waiv[ing]
tribal immunity . . . in a ‘court of competent jurisdiction’” did not “alone confer
jurisdiction on state courts because states are generally presumed to lack
jurisdiction in Indian Country”). So the agreement both refuses to waive
sovereign immunity and proceeds to designate the District of Utah as the venue
for any disputes should immunity ever be overcome. This arrangement may not
seem the most intuitive but it’s hardly incongruous: after all, the Tribe is always
free to consent to a particular suit arising under the Mutual Assistance Agreement
and allow it to proceed in the designated forum even as the Tribe chooses to stand
on its claim of immunity in most cases. See Jicarilla Apache Tribe v. Hodel, 821
F.2d 537, 539-40 (10th Cir. 1987) (holding that a tribe’s potential waiver of
immunity in one suit did not waive its immunity in a subsequent suit); cf. Coll.
Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675
20
(1999) (“[A] State’s sovereign immunity is ‘a personal privilege which it may
waive at pleasure.’” (quoting Clark v. Barnard, 108 U.S. 436, 447 (1883))).
If the agreements don’t help their cause, the State and Counties suggest
their counterclaims can proceed anyway because they implicate the Tribe’s
UTERO (or Ute Tribal Employment Rights Office) ordinance. Under the terms of
that ordinance, the Tribe has indeed “agree[d] to waive its sovereign immunity.”
But the ordinance explains that this “waiver is not, and should not be construed as
a blanket waiver of the Tribe’s sovereign immunity.” Instead, the waiver exists
“for the sole and limited purpose of enforcement of the terms of [the] Ordinance,”
which requires employers on the reservation, including the Tribe itself, to “extend
a preference to qualified Indians . . . in all aspects of employment.” And even
assuming without granting that the defendants’ counterclaims could somehow be
described as an effort to “enforce” the ordinance — itself a seriously questionable
notion — the ordinance is enforceable only before tribal courts and the Tribe’s
UTERO Commission. Nowhere does the waiver permit other parties to hale the
Tribe before a nontribal tribunal and this court enjoys no authority to rewrite for
the defendants the waiver the Tribe has written for itself. Seneca-Cayuga, 874
F.2d at 715 (“[W]aivers of sovereign immunity are strictly construed.”).
Having failed to identify any language in a statute, agreement, or other
document in which the Tribe has waived its immunity, the State and Counties take
us even further afield and in some curious directions. For example, the State and
21
Duchesne County argue we shouldn’t dismiss the counterclaims before us because
of Ex parte Young, 209 U.S. 123 (1908). Young, of course, held that claims for
prospective injunctive relief against state officials may proceed even though
states themselves are generally immune from identical claims. And the Supreme
Court has extended Young’s application to the tribal context, allowing claims
against tribal officials that wouldn’t be allowable against the tribe itself. See Bay
Mills, 134 S. Ct. at 2035. But that principle has no application to this appeal: the
counterclaims before us seek relief not from tribal officials but from the Tribe
itself, sued in its own name.
The defendants’ invocation of the doctrine of equitable recoupment is no
more helpful to their cause. Traditionally, this court has treated recoupment as
“an equitable defense that applies only to suits for money damages.” Citizen
Band Potawatomi Indian Tribe v. Okla. Tax Comm’n, 888 F.2d 1303, 1305 (10th
Cir. 1989), rev’d in part on other grounds, 498 U.S. 505. 4 Meanwhile, the
defendants’ counterclaims in this case seek just injunctive and declaratory relief.
And even assuming the doctrine might operate in cases like this, “recoupment is
in the nature of a defense” to defeat a plaintiff’s claims, not a vehicle for pursuing
an affirmative judgment. Bull v. United States, 295 U.S. 247, 262 (1935); see
4
See also Bolduc v. Beal Bank, SSB, 167 F.3d 667, 672 n.4 (1st Cir. 1999);
Black’s Law Dictionary 618 (9th ed. 2009) (“[Equitable recoupment] is ordinarily
a defensive remedy going only to mitigation of damages.”). See generally
Thomas W. Waterman, A Treatise on the Law of Set-Off, Recoupment, and
Counter-Claim ch. 10 (1869).
22
also Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1344 (10th Cir. 1982). Yet
an affirmative judgment is exactly what the defendants desire. As clarified at oral
argument, the Tribe’s suit seeks to bar relitigation of issues settled in Ute III and
V and to enjoin the prosecution of Indians for offenses committed on tribal lands.
In reply, the counterclaims ask us to do much more than deny that relief — they
demand, among other things, the affirmative relief of an injunction barring the
Tribe from bringing lawsuits against county officials in federal or tribal courts.
Along different but no more persuasive lines, Uintah County argues that the
Tribe waived its immunity by bringing the original Ute litigation some forty years
ago. But Supreme Court precedent couldn’t be clearer on this point: a tribe’s
decision to go to court doesn’t automatically open it up to counterclaims — even
compulsory ones. See Citizen Band, 498 U.S. at 509-10. The County contends
that an out-of-circuit decision, Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8th
Cir. 1995), somehow undermines this principle. But it does no such thing. The
tribe in Rupp explicitly invited the defendants’ counterclaims, “affirmatively . . .
asking the defendants to assert any right, title, interest or estate they may have
[had] in the disputed lands.” Id. at 1245. And even Uintah County doesn’t
suggest it’s ever received an invitation like that from the Ute Tribe.
By now the point is plain. The State and Counties haven’t identified a
clear and unequivocal waiver of sovereign immunity and none of their — often
23
inventive — arguments can substitute for one. The Tribe is entitled to dismissal
of the counterclaims.
*
That leaves Uintah County’s claim that it’s entitled to immunity too.
Neither the State nor any of Uintah’s sister counties join this argument, and it
faces a seriously uphill battle from the start. That’s because the Supreme Court
“has repeatedly refused to extend sovereign immunity to counties.” N. Ins. Co. of
N.Y. v. Chatham County, 547 U.S. 189, 193 (2006).
Uintah County tries to avoid that conclusion in this case by insisting its
county attorneys are the main focus of the Tribe’s suit and those officials are
entitled to immunity because they are “arms of the state.” See, e.g., Watson v.
Univ. of Utah Med. Ctr., 75 F.3d 569, 574 (10th Cir. 1996). But even assuming
that county attorneys are the proper focus of our attention (the Tribe’s suit is
against Uintah County, not its attorneys), a problem still persists. For a county
official to qualify as an “arm of the state,” it’s not enough that he “exercise a
slice of state power” by carrying out prosecutorial functions. N. Ins. Co., 547
U.S. at 193-94 (quoting Lake County Estates, Inc. v. Tahoe Reg’l Planning
Agency, 440 U.S. 391, 401 (1979)) (internal quotation marks omitted). Instead,
our case law directs us to examine both the “degree of autonomy” that the county
official enjoys under state law and the extent to which the finances of his office
are “independent of the state treasury.” Watson, 75 F.3d at 574-75 (quoting
24
Haldeman v. Wyo. Farm Loan Bd., 32 F.3d 469, 473 (10th Cir. 1994)). And both
considerations suggest an insufficient connection between Uintah County
attorneys and the State of Utah to call them arms of the state. In Utah, county
attorneys are elected by county residents alone and the state code refers to them
as “elected officers of a county.” Utah Code Ann. § 17-53-101; see also id. § 17-
18a-202. When it comes to finances, county attorneys are paid not from the
State’s coffers but out of the county’s general fund in amounts fixed by county
legislative bodies. Id. § 17-16-14, -18. Neither has Uintah County pointed to any
countervailing features of state law or practice that might favor it and suggest a
different result here.
To be clear, we hardly mean to suggest that county attorneys can never
qualify as arms of the state. The inquiry turns on an analysis of state law and
financial arrangements so the answer may well differ from state to state and
agency to agency and epoch to epoch. We can surely imagine a different
structure to state law, one in which a county prosecutor’s office is a good deal
more intimately associated with the state. Indeed, that currently may be the case
elsewhere. See, e.g., Slinger v. New Jersey, No. 07-CV-5561, 2008 WL 4126181,
at *9-10 (D.N.J. Sept. 4, 2008), rev’d in part on other grounds, 366 F. App’x 357
(3d Cir. 2010). But there’s just no evidence before us suggesting that’s currently
the case in Utah.
25
*
A system of law that places any value on finality — as any system of law
worth its salt must — cannot allow intransigent litigants to challenge settled
decisions year after year, decade after decade, until they wear everyone else out.
Even — or perhaps especially — when those intransigent litigants turn out to be
public officials, for surely those charged with enforcing the law should know this
much already. Though we are mindful of the importance of comity and
cooperative federalism and keenly sensitive to our duty to provide appropriate
respect for and deference to state proceedings, we are equally aware of our
obligation to defend the law’s promise of finality. And the case for finality here
is overwhelming. The defendants may fervently believe that Ute V drew the
wrong boundaries, but that case was resolved nearly twenty years ago, the
Supreme Court declined to disturb its judgment, and the time has long since come
for the parties to accept it.
The district court’s decision denying the preliminary injunction request is
reversed and that court is directed to enter appropriate preliminary injunctive
relief forthwith. Its decision denying tribal immunity is also reversed and it is
instructed to dismiss the counterclaims against the Tribe. The district court’s
decision denying immunity to Uintah County is affirmed. Before oral argument,
we provisionally granted Uintah County’s motions for leave to file an amicus
brief and supplemental appendix, a decision we do not disturb. All other motions
26
are denied. Though we see some merit in the Tribe’s motion for sanctions against
Uintah County given the highly doubtful grounds of some of its arguments to this
court, we hope this opinion will send the same message: that the time has come
to respect the peace and repose promised by settled decisions. In the event our
hope proves misplaced and the defendants persist in failing to respect the rulings
of Ute V, they may expect to meet with sanctions in the district court or in this
one. See Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990).
27