Ute Tribe urges DC Circuit to restore ownership of millions of acres in Utah
Ryan Knappenberger
WASHINGTON (CN) — An indigenous tribe from the Rocky Mountains asked a D.C. Circuit panel on Monday to overturn a lower court’s ruling refusing to hand over ownership of 1.5 million acres of land within its Utah reservation under an 1880 treaty with the United States.
The Ute Indian Tribe of the Uintah and Ouray Indian Reservation, based in Northeastern Utah, argues that Congress made clear in the Indian Reorganization Act that, in exchange for moving to the reservation, the tribe would have “compensable title” over the land.
Attorney Jeffrey Rasmussen of Patterson Real Bird and Rasmussen, counsel for the Ute Tribe, argued that his clients — specifically the Uncompahghre band of the tribe — were promised effective ownership over the land and would receive compensation if the government moved to sell portions of the land. Following the 1880 statute, the government held 1.5 million of a total 1.9 million acres in the reservation in trust.
“The Indian Reorganization Act says, if they didn’t sell it, they have the authority to give it back to the tribe, because it was never sold,” Rasmussen said.
Rasmussen explained that the government was largely unable to sell most of the land due to the lack of arable land — just 1,900 of the total 1.9 million acres are suited for agriculture — calling it “probably the most worthless land in the United States.”
“The plain language of this statute is as clear as it can be,” the tribe wrote in its appeal brief. “The president ‘set apart’ the land for the Uncompahgre Band; allotments were eventually made; and the land was opened for sale to non-Indians. The United States was statutorily required to place the proceeds from the sales of the land that had been ‘set apart’ and then opened for sale in trust for the Uncompahgre Band.”
According to the tribe, the bands of the Ute Tribe had lived in the Rocky Mountains, with their homeland ranging between Denver and Salt Lake City, since time immemorial. The tribe entered into two treaties with the United States in 1863 and 1868 to give up some of their land in Colorado and Utah in exchange for a reservation as their permanent homeland.
The tribe described the 1880 statute as forcing the bands into a new agreement, requiring they give up 3.7 million more acres in exchange for a smaller reservation for the Uncompahgre Band in Colorado, if possible, or in Utah.
Rasmussen added that while the land was ill-suited to farming, the federal government later found “one of the best oilfields in the United States” was within the reservation, which the tribe characterized in its brief as reason for the government’s refusal to transfer ownership of the land.
Further, Rasmussen said Monday’s case could be the last “large Indian law land case in the country,” and is based on over 140-year-old claims.
The case stems from the Ute Tribe’s challenge of a 2018 decision by then-Interior Department Deputy Secretary David Bernhardt denying the tribe’s request to restore the 1.5 million acres in the Uncompahgre Reservation, which had been held as public domain land under the Indian Reorganization Act.
Bernhardt based his decision on a legal opinion from the Office of the Solicitor that found the restoration of lands could only occur if the tribe is entitled to proceeds from any sale of the lands. He concluded that the public domain lands were not eligible because the federal government could use the land for its own purposes without any need to compensate the tribe.
The tribe then challenged the decision in the U.S. District Court for the District of Columbia, where U.S. District Judge Carl Nichols, a Donald Trump appointee, ultimately granted summary judgment in the government’s favor finding the tribe “has no compensable title to the government-managed land in the Uncompahgre Reservation.”
Justice Department attorney Mary Gabrielle Sprague argued that the 1880 statute had not granted the Ute Tribe compensable title, and suggested that Rasmussen had misinterpreted its purpose.
“The 1880 act is all about allotment, nowhere in the act does it say that a new replacement reservation would be provided for the Uncompahgre Band,” Sprague said. “The idea was to terminate the common ownership of a tribe for its members and replace it with individual parcels for the members, individual allotments.”
The three-judge panel was made up of Chief U.S. Circuit Judge Sri Srinivasan, a Barack Obama appointee, and U.S. Circuit judges Gregory Katsas and Judith Rogers, a Donald Trump and Bill Clinton appointee, respectively.