*1 BROUGH, Respondent, Myron Plaintiff and APPAWORA, Defendant
Ramon R. Appellant. and
No. 14434.
Supreme Court of Utah.
Aug. 17, 1976. Kennedy, Boyden, Pugsley, of
Scott C. City, for Romney Howard, Lake & Salt defendant-appellant. Hatch, & McRae
Robert M. McRae of City, Richardson, plaintiff- Lake Salt respondent.
ELLETT, Justice: from a decision The defendant appeals County de- the District Court of en- judgment clining set aside a default Septem- plaintiff on on behalf of the tered non-Indian,' plaintiff, a ber judgment default for obtained $28,800 general special and dam- sum of together with of court. On ages, costs defendant, an en- October about tribe, of the Ute Indian rolled member appeared specially the court and moved dismiss set aside the default the basis that the action on the defendant and lacked subject matter. The court denied seeking defendant is here motion and the reversal.
The automobile accident out of which
action arose
occurred
November
12, 1974,
county
on a
road Uintah Coun-
ty approximately
miles south of Fort
two
Duchesne,
defendant claims
Utah. The
that the
lives en-
reservation on which he
compasses
“drainage
all the land
of the Duchesne River from the snow-
capped mountains on the north to the
snowcapped mountains on the south.”
This
of land
numerous cities
includes
and towns
of acres of land
and thousands
occupiedby
owned
non-Indians.
*2
935
in or
the land not
had
to
ancestors ever
presented
this
question
The sole
longer
them. No
allocated to
theretofore
courts
or not the district
appeal is whether
migrant
him a
carry about
can an Indian
jurisdiction over
have
of the State of Utah
him im-
protecting mantle which makes
tribe
the Ute Indian
members of
long
so
as he
to the
of the land
mune
law
by the Duchesne
drained
within the area
snowcapped
stray beyond
does not
the
River and its tributaries.
the
mountains
the
and south of
to
north
the United States
government of
The
drainage
Duchesne
basin.
the various Indian
warred with
formerly
inde
A treaty
only exist between
fur-
can
preventing
and as a means of
tribes
gen
pendent, sovereign powers.4 Several
of
bloodshed, entered into treaties
ther
govern
ago
erations
the United States
of this defendant
peace
ancestors
of
treaty
into a so-called
ment entered
for
whereby
apart
lands were set
certain
peace
of Ute Indians.
with the nation
civilization
the advance of
their use. With
in
Supreme Court
The United States
it
con-
population,
in
was
and the increase
County Court5
DeCoteau v. District
areas of the
advisable
certain
sidered
for
time,
govern
the
said that since that
granted
Indians were
land
be sold.. The
policy
general
its
“had altered
ment
by themselves and the
specific lands chosen
Further,
the
the
tribes.”
toward
government
remaining
land was sold
tribes
the
“After
stated:
money
proviso
with a
that
the
received
na
sovereign
longer
regarded
were no
in
would be held
from the sale thereof
Government,
regu
tions,
began to
and the
trust
the
of the Indians.
for
benefit
through statute
late their affairs
Roosevelt,
In
President Theodore
190S
agreements
through contractual
ratified
proclamation
placed
July
the
dated
statute.”6
not thereto-
reservation
land of the Indian
public
Indians
on the
fore allotted to
back
nation,
long-ago
Ute
The
Congress appropriated funds to
domain.1
exists,
descend
treaty,
longer
no
and the
transferred,
pay
the
thus
and the
for
land
of
are
ants of the inhabitants
that nation
money.2
accepted the
Indians
now
When
citizens of the United States.
exist,
treaties are no
a nation ceases to
its
years ago,
25
the Ute
Some
effect,7
longer
and the de
any
of
force
against
States
got
judgment
the United
a
the
scendants of those who constituted
re
money
it had
government
claim
cannot thereafter
erstwhile nation
of the reservation
ceived from the sale
long
any
treaty.
benefits under the
For
That
lying
land
the State
Colorado.3
time,
they were
Indians have claimed that
$31,938,473.43.
basis
totaled
country.
this
not
treated as citizens of
was
against
government
of their suit
they
the United
Now that
are citizens of
that
an
in the land
they had
interest
States,
unwilling
to ac
of them
some
payment
lien
secure the
nature
cept the
and duties which
responsibilities
money
received
the Ute tribes
citizenship.
go
privilege
had
for the land which
v. District
In the
of DeCoteau
case
public domain
been taken
back into
presented
Court, supra,
question
was
public. By
judgment,
sold
had
not the state court
whether or
thereof,
In
and the satisfaction
Indians within
confines
diction of
they
their
rights which
dians lost all
1.
87 C.J.S.
4.
(1905).
§
Treaties
Large,
1.
at
3119
34 Statutes
L.Ed.2d
5.
S.Ot.
43
420 U.S.
95
Large, 264.
2.
at
32 Statutes
(S.D.1973).
;
To
an Indian who
nities
commits a
within
borders of the United
murder
any
in
various
original
towns
States whether within the
drainage
thereof,
subsequently acquired territory
of the Duchesne River to
show disdain
prosecuting
for the
and whether
limits
officials
within or without the
state,
and claim the sanctuary
allotments,
of the tribal
of a
and (c) all Indian
meth-
procedure
ofod
is
the Indian
unthinkable.
titles to which have not been
extinguished,
rights-of-way
including
of the trial court was cor-
running through the same.
rect and it is affirmed. Costs are awarded
respondent.
to the
U.S.C.,
1151,
quoted
While 18
above
Sec.
its
only
juris-
face
deals
criminal
with
CROCKETT, J., concurs.
gen-
diction it
recognized
has been
that it
erally applies
questions
as well
of civil
HENRIOD,
J.,C.
in
concurs
the result.
jurisdiction.1
25,
1322,
Title
is a
Sec.
TUCKETT,
(dissenting).
power
grant
Congress
Justice
to the states
I respectfully
jurisdiction
pertaining
dissent.
states over
parties.
civil causes in which Indians are
An affidavit of the superintendent of the
That
following language:
section is in the
Ouray
Uintah and
Agency of the Bureau
Affairs,
Duchesne,
Indian
Fort
is
discloses
The consent of the United States
place
hereby given
any
having
where the accident occurred
State not
425,
Com.,
8. 420 U.S.
under such rules and as he “Indian reservation” definition of may prescribe, requested do so when U.C.A.1953, by Section defined way the tribal or other amended, council rights that indicates part through per reservation body, running centum of such en- of the reservation.3 rolled adults. States, disposition said provides: Ill, of the United of Utah
2. Art. Constitution absolute under inhabiting shall remain people Indian lands State “Second: —The Congress they and control of forever dis- declare that do affirm and unappropriated ...” right States. the United all and title to claim public lying within the boundaries lands Gourneau, (N.D.) 207 N.W.2d v. hereof, lying Smith 3. said all and to lands Kennerly Ninth Jud. 256; v. Dist. Court by any or held Indian or limits owned Montana, 91 S.Ct. Dist. U.S. tribes, shall title thereto and that until States, extinguished 27 L.Ed.2d have been subject same shall be and remain opinion I am of the the district jurisdiction.
court was without
MAUGHAN, J., concurs in the views ex-
pressed in dissenting opinion
TUCKETT, J. PADJEN, Respondent,
Bessie Plaintiff and
Douglas Inagene Shipley, SHIPLEY and D. Appellant. Defendants and
No. 14453.
Supreme Court of Utah.
Aug. 17, 1976.
Inagene D. Shipley, pro se. Rose, City, Bernard L. Salt Lake plaintiff-respondent.
MAUGHAN, Justice: action, seeking in- Plaintiff initiated prop- adjoining junctive against relief ground that defendant' erty owner on the ordinance, zoning violating County, Lake Rev.Ord. Salt plaintiff’s motion granted The trial court