case no. 19-4093...2020/09/10 · utah, no. 2:13-cv-00276, 2015 wl 4717639, (d. utah aug. 7, 2015),...

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CASE NO. 19-4093

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RICHARD DOUGLAS HACKFORD,

Plaintiff – Appellant,

v.

THE STATE OF UTAH, Gary Hebert, in his

capacity as the Governor of Utah, SEAN D.

REYES, in his capacity as Attorney General of

Utah, Uintah County, G. MARK THOMAS, in his

capacity as County Attorney for Uintah County and

LOREN ANDERSON, in his capacity as Deputy

County Attorney Uintah County,

Defendants - Appellees.

On Appeal from the United States District Court

For the District of Utah, Central Division

The Honorable Judge Clark Waddoups

Consolidated Case No. 2:18-cv-631

APPELLANT’S BRIEF

(ORAL ARGUMENT NOT REQUESTED)

Elizabeth A. Shaffer

Elizabeth A. Shaffer, PLLC

1960 Sidewinder Drive, #213

Park City, Utah 84060

Telephone: 435-655-3033

Facsimile: 435-655-9233

Appellate Case: 19-4093 Document: 010110277891 Date Filed: 12/19/2019 Page: 1

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... 4

STATEMENT OF PRIOR AND/OR RELATED APPEALS .................................. 8

PRELIMINARY STATEMENT .............................................................................. 8

JURISDICTION ........................................................................................................ 8

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................ 8

STATEMENT OF THE CASE ................................................................................. 9

STATEMENT OF THE FACTS .............................................................................. 9

PROCEDURAL POSTURE .................................................................................... 10

ARGUMENT ........................................................................................................... 11

I. APPELLANT IS INDIAN AND SATISFIES THE LEGAL

REQUIREMENTS FOR FEDERAL CRIMINAL JURISDICTION

NOTWITHSTANDING THE UTE PARTITION ACT ................................ 11

II. INDIAN STATUS FOR FEDERAL CRIMINAL JURISDICTION IS

BASED ON INDIAN BLOOD AND A UNIQUE STATUS OF

SUFFICIENT LINKS TO A SOVEREIGN NATION ................................... 19

III. THE UTE PARTITION ACT DID NOT TERMINATE APPELLANT’S

INDIAN STATUS FOR PURPOSE OF FEDERAL CRIMINAL

JURISDICTION ............................................................................................. 22

IV. EXCLUDING APPELLANT FROM FEDERAL CRIMINAL

JURISDICTION BASED ON THE UTE PARTITION ACT TREATS

APPELLANT DIFFERENTLY FROM OTHER INDIANS WHO

HAVE BEEN TERMINATED AND ARE NOT MEMBERS OF A

FEDERALLY RECOGNIZED TRIBE AND IS

UNCONSTITUTIONAL ................................................................................ 23


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V. MR. HACKFORD’S CASE IS NOT BARRED BY COLLATERAL

ESTOPPEL ..................................................................................................... 25

CONCLUSION ........................................................................................................ 32

CERTIFICATE OF COMPLIANCE ....................................................................... 33

CERTIFICATE OF DIGITAL SUBMISSION AND

PRIVACY REDACTIONS ...................................................................................... 34

CERTIFICATE OF SERVICE ................................................................................ 35

ATTACHMENTS

DKT #35, Order Granting Defendants’ Motion to Dismiss filed June 13, 2019

by Judge Clark Waddoups (Case 2:18-cv-00631-CW) ..................................... 36

DKT #36, Judgement in a Civil Case filed June 13, 2019

by Judge Clark Waddoups (Case 2:18-cv-00631-CW) ..................................... 41


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TABLE OF AUTHORITIES

Cases

Affiliated Ute Citizens of Utah v. U.S., 406 U.S. 128, 140 (U.S. Utah 1972) ......... 13

Allen v. McCurry, 449 U.S. 90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980) ......... 28

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) .. 11

Block v. Commissioners, 99 U.S. 686, 693, 25 L. Ed. 491 (1878) .......................... 30

B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1301 (10th Cir. 2008) .. 30

Clark v. Zwanziger (In re Zwanziger), 467 B.R. 475, 483-84 (B.A.P. 10th Cir.

2012), reversed on other grounds, 741 F.3d 74, 75 (10th Cir. 2014) ..................... 29

County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) .......................... 14

EnTitle Ins. Co. v. Durling (In re Durling), 500 B.R. 96,

101 (Bankr. D. Utah 2013) ...................................................................................... 29

Hackford v. Babbitt, 14 F.3d 1457, 1462 (10th Cir. 1994)................................. 13, 16

Hackford v. Utah, 2015 WL 4717639, (D. Utah Aug. 7, 2015), aff'd,

845 F.3d 1325 (10th Cir. 2017), cert. denied, 138 S. Ct. 206 (2017) ................. 8, 10

Hackford v. Utah, No. 2:75-cv-00408, 2015 U.S. Dist. LEXIS 107301,

at *4 (D. Utah Aug. 7, 2015) ................................................................................... 26

Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) ......................... 11

Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373,

376, 84 L. Ed. 2d 274, 105 S. Ct. 1327 n.1 (1985) .................................................. 28

Martin v. United States, 2017 U.S. Dist. LEXIS 25508,

at *12 (D. Minn. Feb. 17, 2017) ......................................................................... 12, 19

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) ........................................... 11


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Monroe v. Bank of Am. Corp., 781 F. App’x 735 (10th Cir. 2019) .......................... 11

Morton v. Mancari, 417 U.S. 535, 551-552 (1974) ............................................ 15, 24

Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009) ............................................. 28

Murdock v. Ute Indian Tribe of Uintah & Ouray Reservation,

975 F.2d 683, 686 (10th Cir. 1992) .................................................................... 28, 30

Park Lake Res. Ltd. Liab. Co. v. U.S. Dep't of Agric.,

378 F.3d 1132, 1136 (10th Cir. 2004) ................................................................ 29, 31

Roberts v. Hagener, 287 Fed.Appx. 586, 586-587 (C.A.9 (Mont.) 2008) .............. 15

Segal v. American Tel. & Tel. Co., 606 F.2d 842, 845 & n.2 (9th Cir. 1979) .......... 30

Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520 (10th Cir. 1990) .......................... 31

St. Cloud v. United States, 702 F.Supp. 1456, 1460, 1461

(D.S.D.1988) .......................................................................................... 16, 17, 21, 22

Superior Oil Co. v. Merritt, 619 F.Supp. 526, 532 fn2 (D. Utah 1985) .................. 25

United Bhd. of Carpenters & Joiners v. Brown, 343 F.2d 872, 884

(10th Cir. 1965) ........................................................................................................ 27

United States v. Antelope, 430 U.S. 641, 646 (1977) ............................ 15, 16, 18, 23

United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) ......................... 16

United States v. Dodge, 538 F.2d 770, 786 (8th Cir. 1976) .................................... 16

United States v. Driver, 755 F. Supp. 885, 888 & n.7 (D.S.D.), aff'd, 945 F.2d 1410

(8th Cir. 1991), cert. denied, 502 U.S. 1109, 112 S. Ct. 1209, 117 L. Ed. 2d 448

(1992) ....................................................................................................................... 21

United States v. Felter, 546 F.Supp. 1002, 1006 n. 5 (D. Utah 1982) .................... 25

United States v. Friesen, 853 F.2d 816, 817 (10th Cir. 1988) .................................. 27


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United States v. Juvenile Male, 666 F.3d 1212, 1215 (9th Cir. 2012) .................... 22

United States v. Pemberton, 405 F.3d 656, 660 (8th Cir. 2005) ......................... 12, 21

United States v. Prentiss, 273 F.3d 1277,

1279-1280 (10th Cir. 2001) ........................................... 12, 14, 15, 16, 17, 20, 22, 23

United States v. Rogers, 45 U.S. 567, 572-73, 11 L. Ed. 1105 (1846) ........ 19, 20, 21

United States v. Shavanaux, 647 F.3d 993, 1002 (10th Cir. 2011) ......................... 24

United States v. Soria-Garcia, 947 F.2d 900, 902 n.1 (10th Cir. 1991) ................... 27

United States v. Stymiest, 581 F.3d 759, 766 (8th Cir. 2009) ................ 21, 19, 20, 21

United States v. Torres, 733 F.2d 449, 456 (7th Cir.), cert. denied,

469 U.S. 864, 105 S. Ct. 204, 83 L. Ed. 2d 135 (1984) ........................................... 20

United States v. Von Murdock, 132 F.3d 534, 535 (10th Cir. 1997) ....................... 23

United States v. Weed, 389 F.3d 1060, 1071 (10th Cir. 2004) ......................... 23, 24

U.S. v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005)17, 22

U.S. v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012) ...............................................17

U.S. v. Nowlin, 555 Fed.Appx. 820, 832 (C.A.10 (Wyo.) 2014) ...........................18

Ute Distribution Corp. v. Secretary of Interior, 149 F.3d 1260,

1268 (10th Cir. 1998) ..............................................................................................13

Ute Distrib. Corp. v, United States, 938 F.2d 1157, 1159 (10th Cir. 1991) ..........13

Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072,

1078 fn. 14 (D. Utah 1981) ....................................................................................14

Ute Indian Tribe v. State of Utah, 716 F.2d 1298 (10th Cir. 1983) .......................14


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Ute Indian Tribe v. State of Utah, 935 F.Supp. 1473,

1501-1502 (D. Utah 1996) ....................................................................................... 15

Vialpando v. State, 640 P.2d 77, 79-80 (Wyo. 1982) .............................................. 17

Statutes

18 U.S.C.S. § 1153 ....................................................................................... 16, 17, 19

25 U.S.C. § 677 ........................................................................................ 9, 10, 13, 25

28 U.S.C. § 1291 ........................................................................................................ 8

U.R.C.P. Rule 12(b) ............................................................................................ 10, 27

U.R.C.P. Rule 50 ...................................................................................................... 27

U.R.C.P. Rule 52(a) ................................................................................................. 27

U.R.C.P. Rule 56 ...................................................................................................... 27

U.R.C.P. Rule 59 ...................................................................................................... 27

Other Authorities

18A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE CIVIL § 4432 (2d ed. 2002) .................................................................. 29


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STATEMENT OF PRIOR AND/OR RELATED APPEALS

Mr. Hackford brought several claims before the Federal District Court in

2014, in which the court dismissed his case. Hackford v. Utah, No. 2:13-CV-00276,

2015 WL 4717639, (D. Utah Aug. 7, 2015), aff'd, 845 F.3d 1325 (10th Cir. 2017).

Mr. Hackford appealed the District Court ruling, and this Court upheld the

dismissal on the basis that the offense did not occur in Indian Country. Hackford v.

Utah, 845 F.3d 1325 (10th Cir. 2017), cert. denied, 138 S. Ct. 206 (2017).

However, this Court did not reach the issue of Mr. Hackford’s Indian status.

PRELIMINARY STATEMENT

On June 13, 2019, The District Court for the District of Utah, Central

Division, The Honorable Judge Clark Waddoups granted the Defendants’ Motion to

Dismiss Complaint for failure to state a claim and dismissed with prejudice

Appellant’s Complaint for Declaratory and Injunctive Relief (Aplt. App. at 3 and 4)

JURISDICTION

The circuit court has jurisdiction over final orders of the federal district

courts within its territorial jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Appellant is Indian and as such, satisfies the legal requirements for federal

criminal jurisdiction notwithstanding the Ute Partition Act;


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2. The Ute Partition Act did not terminate Appellant’s Indian status for purpose

of federal criminal jurisdiction;

3. Excluding Appellant from Federal criminal jurisdiction is unconstitutional;

and

4. Mr. Hackford’s case is not barred by collateral estoppel.

STATEMENT OF THE CASE

The Motion to Dismiss filed by Defendants was erroneously granted on the

basis that Mr. Hackford is a Mixed Blood Ute Indian and therefore under the clear

and express language of the Ute Partition Act. Mr. Hackford is subject to “the laws

of the several states….in the same manner as they apply to other citizens within

their Jurisdiction.” 25 U.S.C. § 677 v.

STATEMENT OF THE FACTS

Mr. Hackford, was cited for a criminal traffic offense by a member of the

Uintah County Sheriff’s Department. On August 10, 2018 Mr. Hackford filed his

complaint before the U.S. District Court in which he alleged that the offense

occurred within the Uintah Reservation, and that because he is an Indian, Uintah

County and the State of Utah do not have jurisdiction over him.

Mr. Hackford’s complaint sought an injunction prohibiting State Defendants

from prosecuting him and declaratory relief stating: 1) that the Federal Court is the


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proper court to determine the question of his status as an Indian; 2) that he is an

Indian; and 3) that the Federal Court is the proper court for criminal jurisdiction.

Mr. Hackford brought several claims before the Federal District Court in

2014, in which the court denied his claims and dismissed his case. Hackford v.

Utah, No. 2:13-CV-00276, 2015 WL 4717639, (D. Utah Aug. 7, 2015), aff'd, 845

F.3d 1325 (10th Cir. 2017). Mr. Hackford appealed the District Court ruling, and

this Court upheld the dismissal on the basis that the offense did not occur in Indian

Country. Hackford v. Utah, 845 F.3d 1325 (10th Cir. 2017), cert. denied, 138 S. Ct.

206 (2017). However, this Court did not reach the issue of Mr. Hackford’s Indian

status.

PROCEDURAL POSTURE

Defendants filed a 12(b)(6) Motion to Dismiss Hackford’s Complaint for

failure to state a claim. The Motion to Dismiss filed by Defendants was granted on

the basis that Mr. Hackford is a Mixed Blood Ute Indian and therefore under the

clear and express language of the Ute Partition Act. Mr. Hackford is subject to “the

laws of the several states….in the same manner as they apply to other citizens

within their Jurisdiction.” 25 U.S.C. § 677 v.


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LEGAL STANDARD

The Court will review de novo a district court's ruling on a motion to dismiss

for failure to state a claim upon which relief can be granted." Miller v. Glanz, 948

F.2d 1562, 1565 (10th Cir. 1991).

LEGAL ARGUMENT

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)

(internal quotation marks omitted). “Plaintiffs must allege specific facts that would

support the conclusion that they are entitled to relief.” Monroe v. Bank of Am.

Corp., 781 F. App'x 735 (10th Cir. 2019), citing Khalik v. United Air Lines, 671

F.3d 1188, 1191 (10th Cir. 2012) ("[M]ere labels and conclusions . . . will not

suffice." (internal quotation marks omitted)).

In this case, it is clear that Appellant has alleged specific facts that would

support the conclusion that he is entitled to relief. As a result, Judge Waddoups

erred and abused his discretion is granting Defendants’ motion to dismiss (Aplt.

App. at 3 and 4).

I. APPELLANT IS INDIAN AND SATISFIES THE LEGAL

REQUIREMENTS FOR FEDERAL CRIMINAL JURISDICTION

NOTWITHSTANDING THE UTE PARTITION ACT


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An individual can be determined to be an Indian for criminal jurisdiction

purposes pursuant to the Major Crimes Act even if the defendant is not an enrolled

member of a federally recognized tribe. Martin v. United States, 2017 U.S. Dist.

LEXIS 25508, at *12 (D. Minn. Feb. 17, 2017). See United States v. Stymiest, 581

F.3d 759, 766 (8th Cir. 2009) (evidence of Indian status was sufficient for

conviction despite not being an enrolled member); see also United States v.

Pemberton, 405 F.3d 656, 660 (8th Cir. 2005) (defendants who hold themselves out

to be Indians and who are of Indian blood are Indians under the Major Crimes Act).

A. THE UTE PARTITION ACT

The Ute Partition Act (UPA) termination of mixed bloods from Ute tribal

membership does not ipso facto negate their status as Indians for purpose of

criminal jurisdiction. The Tenth Circuit and other courts have implemented a two-

part test to determine whether a person is an Indian for the purposes of federal law:

the court must first make factual findings that the person has “some Indian blood;”

and, second, the person must be “recognized as an Indian by a tribe or by the

federal government.” United States v. Prentiss, 273 F.3d 1277, 1279-1280 (10th

Cir. 2001) (emphasis added).

In 1954, Congress passed legislation terminating a number of Indian tribes,

including part of the Ute Indian Tribe, the mixed-blood Utes of the Uintah and

Ouray Reservation in Utah. 25 U.S.C. §§ 677– 677aa). However, this Act did not


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terminate the federal Indian status of the entire Ute Indian Tribe. Rather, it divided

the Tribe into two groups—mixed-bloods and full-bloods—and terminated federal

supervision only as to the mixed-blood members. 25 U.S.C. § 677.

Congress terminated federal supervision of the mixed-bloods with respect to

partitioned and distributed assets and eliminated the mixed-bloods' federal Indian

status in other respects. However, the United States Government retained its trust

relationship with the mixed-bloods as to the indivisible assets of the tribe. Ute

Distribution Corp. v. Secretary of Interior, 149 F.3d 1260, 1268 (10th Cir. 1998).

While these assets are not under the traditional sovereign control of the Ute Tribe.

Id., at 1310-1311, the termination in 25 U.S.C. § 677v, “of course, did not purport

to terminate the trust status of the undivided assets.” Affiliated Ute Citizens of Utah

v. U.S., 406 U.S. 128, 140 (U.S. Utah 1972). The non-divisible tribal assets "were to

remain in government trust and be jointly managed by [the Ute] Tribal Business

Committee and the Mixed-Bloods' representative.'" Hackford v. Babbitt, 14 F.3d

1457, 1462 (10th Cir. 1994), quoting Ute Distrib. Corp. v, United States, 938 F.2d

1157, 1159 (10th Cir. 1991).

Thus, Appellant’s tribal assets are effectively controlled by the federal

government, which evidences his status as an Indian. This Court held that, with

respect to assets “not susceptible to equitable and practicable distribution,” the

mixed-bloods retain their federal Indian status, and the same concerns about the


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United States' trust responsibility to protect valuable Indian property rights that

guided the Supreme Court in Oneida Nation apply here as well. Ute Distribution

Corp., at 1313, citing County of Oneida v. Oneida Indian Nation, 470 U.S. 226

(1985).

Again, the Prentiss test for Indian status is satisfied by Appellant in that (i)

he does have “some Indian blood”; and (ii) he is “recognized as an Indian by the

federal government.” As a result, his action should move forward, and Defendants’

motion should have been denied.

B. TRIBAL MEMBERSHIP IS NOT REQUIRED FOR FEDERAL INDIAN

STATUS

Tribal membership is not required for federal Indian status. “[I]t has long

been held that exclusive federal criminal jurisdiction over Indians in ‘Indian

country’ includes all persons found to be ‘Indian’ under federal law,

notwithstanding specific tribal membership or lack thereof.” Ute Indian Tribe v.

State of Utah, 521 F.Supp. 1072, 1078 fn. 14 (D. Utah 1981), judgment affirmed in

part, reversed in part by Ute Indian Tribe v. State of Utah, 716 F.2d 1298 (10th Cir.

1983) (“Ute II”) (emphasis added).

As a result, the UPA’s termination of mixed bloods from its tribal

membership did not negate their status as Indians. The United States Supreme Court

and other courts “have long held that classifications based on membership in a


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federally recognized Indian tribe are political, rather than racial, and thus subject to

rational basis review.” Roberts v. Hagener, 287 Fed.Appx. 586, 586-587 (C.A.9

(Mont.) 2008), citing Morton v. Mancari, 417 U.S. 535, 551-552 (1974). To that

point, the Supreme Court has held that “Indian blood alone is not enough to warrant

federal criminal jurisdiction because jurisdiction over Indians in Indian country

does not derive from a racial classification but from the special status of a formerly

sovereign people.” United States v. Antelope, 430 U.S. 641, 646 (1977) (emphasis

added).

The various requirements for tribal membership are articulated in the UPA,

although the effects of the Ute Partition Act, “though drastic, were not absolute.”

Ute Indian Tribe v. State of Utah, 935 F.Supp. 1473, 1501-1502 (D. Utah 1996).

The provisions addressing federal Indian status are not clearly defined.

Nonetheless, decisions from this Court and others elucidate the issue and the

Appellant’s unique circumstance, evidencing that he retains federal Indian status, as

opposed to tribal membership (emphasis added). This Court in Prentiss

acknowledged that “the issue of how one ought to determine Indian status under the

federal statutes governing crimes in Indian country is extraordinarily complex and

involves a number of competing policy considerations.” Id., at 1282.

Criminal jurisdiction in Indian country “does not rely on a racial

classification but depends on whether a person enjoys the unique status of sufficient


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links to a formerly sovereign nation to be an ‘Indian.’ ” St. Cloud v. United States,

702 F.Supp. 1456, 1460, 1461 (D.S.D.1988), citing Antelope, at 646. Based upon

the case law which holds that tribal membership is not a prerequisite for Indian

status, the UPA’s termination of mixed bloods from Ute tribal membership does not

support a conclusion that the Appellant does not hold Indian status. Further, the

Tenth Circuit’s decisions applying the two-part evidentiary test to determine

whether a person is an Indian for the purposes of federal law found in Prentiss have

approved a totality-of-the evidence approach. United States v. Prentiss, 273 F.3d

1277, 1283 (10th Cir. 2001). When examining the totality of the evidence proffered

by Appellant, it is clear that he has sufficiently satisfied the Court’s two-prong test

for Indian status.

“Enrollment is the common evidentiary means of establishing Indian status,

but it is not the only means nor is it necessarily determinative.” United States v.

Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) (citations omitted) (emphasis

added). See United States v. Dodge, 538 F.2d 770, 786 (8th Cir. 1976) (defendants

who hold themselves out to be Indians and who are of Indian blood are Indians

under § 1153).

C. THE TERM “INDIAN” IS NOT STATUTORILY DEFINED

Again, this Court and other Circuits have acknowledged that the term

“Indian” is not statutorily defined. In Hackford v. Babbitt, 14 F.3d 1457, 1462 (10th


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Cir. 1994), this court held that the term “Indian” is not statutorily defined for

purposes of federal criminal jurisdiction under 18 U.S.C. § 1153 or in related

statutes addressing criminal jurisdiction in Indian country. Id. See U.S. v. Bruce,

394 F.3d 1215, 1223 (9th Cir. 2005) (Due to the lack of a statutory definition of the

term “Indian,” courts have “judicially explicated” its meaning.). See also St. Cloud,

at 1460 (“Though there are a variety of statutory definitions of ‘Indian,’ Congress

has not defined ‘Indian’ as used in the statutes governing criminal jurisdiction.”).

This Court has implemented a two-part test to determine whether a person is an

Indian for the purposes of federal law: to determine whether an individual is an

Indian, the court must first make factual findings that the person has “some Indian

blood,” and, second, that the person is “recognized as an Indian by a tribe or by the

federal government.” Prentiss, at 1279-1280. A person satisfies the definition only

if both parts are met, and the test applies to determine the status of both a

perpetrator or a victim of a crime in Indian Country. U.S. v. Diaz, 679 F.3d 1183,

1187 (10th Cir. 2012). Here, the Appellant does have Indian blood, and by virtue of

his retained tribal assets, is recognized by the federal government. See Vialpando v.

State, 640 P.2d 77, 79-80 (Wyo. 1982) (“Courts have since looked to a number of

factors to determine whether a person is recognized as an Indian, with no single

factor dispositive […]”).


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This Court has held that the first prong is met when the defendant's “parent,

grandparent, or great-grandparent ... is clearly identified as an Indian.” U.S. v.

Nowlin, 555 Fed.Appx. 820, 832 (C.A.10 (Wyo.) 2014). In evaluating the second

prong, courts have developed a list of factors in determining whether a defendant is

recognized as an Indian by a tribe or the federal government. These include: 1)

enrollment in a tribe; 2) government recognition formally and informally through

providing the person assistance reserved only to Indians; 3) enjoying benefits of

tribal affiliation; and 4) social recognition as an Indian through living on a

reservation and participating in Indian social life. Id. These factors are not

exclusive. Id. Tribal enrollment, the United States Supreme Court has held, is not

dispositive of the issue. Antelope, at 647 n. 7.

The Nowlin Court noted that, although Nowlin was not an enrolled member,

the government presented evidence that:

• Nowlin enjoyed access to free healthcare from the Indian Health Service,

• Nowlin obtained three fishing permits that were available only to Indians,

and

• Nowlin was socially recognized as an Indian through participation in

powwows, bearing children with an enrolled tribe member, and holding

himself out as an Indian.

Nowlin, at 823-24 (“The evidence, combined with Nowlin's prior concession of

Indian status, was sufficient regarding both prongs of the test.”).


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The Supreme Court held that “enrollment in an official tribe has not been

held to be an absolute requirement for federal jurisdiction, at least where the Indian

defendant lived on the reservation and maintained tribal relations with the Indians

thereon.” Id. (emphasis added). Appellees do not address this test or its application

to Appellant, focusing only on tribal membership. In light of the fact that there is no

statutory definition for “Indian,” and this Court approved a totality-of-the evidence

approach, Appellant provides ample evidence of his status as an Indian.

II. INDIAN STATUS FOR FEDERAL CRIMINAL JURISDICTION IS

BASED ON INDIAN BLOOD AND A UNIQUE STATUS OF

SUFFICIENT LINKS TO A SOVEREIGN NATION

An individual can be determined to be an Indian for criminal jurisdiction

purposes pursuant to The Major Crimes Act even if the defendant is not an enrolled

member of a federally recognized tribe. Martin v. United States, 2017 U.S. Dist.

LEXIS 25508, at *12 (D. Minn. Feb. 17, 2017).

A. INDIAN STATUS DOES NOT REQUIRE TRIBAL MEMBERSHIP

The Eight Circuit noted that the Indian Major Crimes Act conferred federal

jurisdiction to prosecute enumerated offenses that are committed by an Indian

"within the Indian country." United States v. Stymiest, 581 F.3d 759, 762 (8th Cir.

2009), citing 18 U.S.C. § 1153(a). The Eighth Circuit reiterated that the statute does

not define “Indian,” but acknowledged the generally accepted test adapted from

United States v. Rogers, 45 U.S. 567, 572-73, 11 L. Ed. 1105 (1846), which asks


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“whether the defendant (1) has some Indian blood, and (2) is recognized as an

Indian by a tribe or the federal government or both.” Id., citing United States v.

Prentiss, 273 F.3d 1277, 1280 (10th Cir. 2001). The Eighth Circuit noted that four

circuits and state courts apply this test. In Stymiest, the parties agree that the first

Rogers criterion was satisfied because Stymiest had 3/32 Indian blood.

Mr. Stymiest argued that, if Indian status is an element of the offense, the

district court's jury instruction was an inaccurate and inadequate statement of the

recognition part of the Rogers test. Relying on the instruction quoted in United

States v. Torres, 733 F.2d 449, 456 (7th Cir.), cert. denied, 469 U.S. 864, 105 S. Ct.

204, 83 L. Ed. 2d 135 (1984), the district court instructed the jury:

The second element is whether Matthew Stymiest is recognized as an

Indian by the tribe or by the federal government or both. Among the

factors that you may consider are:

1. enrollment in a tribe;

2. government recognition formally or informally through providing

the defendant assistance reserved only to Indians;

3. tribal recognition formally or informally through subjecting the

defendant to tribal court jurisdiction;

4. enjoying benefits of tribal affiliation; and

5. social recognition as an Indian through living on a reservation and

participating in Indian social life, including whether the defendant

holds himself out as an Indian.

Id., at 763.


21

The Eight Circuit held that it was not necessary that all of these factors be

present. Instead, “the jury is to consider all of the evidence in determining whether

the government has proved beyond a reasonable doubt that the defendant is an

Indian.” Id.

Also, in granting post-conviction relief on this issue in St. Cloud v. United

States, 702 F. Supp. 1456, 1461 (D.S.D. 1988), the court "gleaned from case law"

factors to guide the analysis of the second Rogers criterion and listed the factors "in

declining order of importance": "1) enrollment in a tribe; 2) government recognition

formally and informally through providing the person assistance reserved only to

Indians; 3) enjoying benefits of tribal affiliation; and 4) social recognition as an

Indian through living on a reservation and participating in Indian social life. Id. In

United States v. Driver, 755 F. Supp. 885, 888 & n.7 (D.S.D.), aff'd, 945 F.2d 1410

(8th Cir. 1991), cert. denied, 502 U.S. 1109, 112 S. Ct. 1209, 117 L. Ed. 2d 448

(1992), the court noted that tribal enrollment is the most important St. Cloud factor,

but it is not essential and its absence is not determinative. In affirming dismissal of

the indictment in Lawrence, the Court considered the St. Cloud factors in declining

order of importance only because the government did not object. 51 F.3d at 152

(emphasis added). The Eight Circuit noted that in United States v. Pemberton, 405

F.3d 656, 660 (8th Cir. 2005), where the jury instruction was not an issue, the Court


22

held the evidence sufficient to establish the defendant's Indian status without

applying the Rogers test or even citing St. Cloud. Stymiest, supra at 763-64.

III. THE UTE PARTITION ACT DID NOT TERMINATE APPELLANT’S

INDIAN STATUS FOR PURPOSE OF FEDERAL CRIMINAL

JURISDICTION

Mr. Hackford has sufficiently shown his status as an Indian and therefore, the

State of Utah does not have criminal jurisdiction over him and the alleged crime. The

State of Utah through its Uintah County political subdivision caused direct

irreparable injury to Mr. Hackford by its continued prosecution of this matter. The

Court must undertake a Prentiss analysis to determine Mr. Hackford’s Indian status.

United States v. Prentiss, 273 F.3d 1277, 1279-1280 (10th Cir. 2001).

In United States v. Bruce, 394 F.3d 1215, 1224 (9th Cir. 2005), the Ninth

Circuit held there was sufficient proof that the defendant was Indian even though it

was undisputed that she was not an enrolled member of a tribe. Id. at 1224 ("Tribal

enrollment is the common evidentiary means of establishing Indian status, but it is

not the only means nor is it necessarily determinative.”) (citation and internal

quotation marks omitted)). Accordingly, as Bruce did not require tribal enrollment,

the juvenile in a 2012 case was also not required to satisfy tribal enrollment before a

trier of fact could conclude he was Indian. United States v. Juvenile Male, 666 F.3d

1212, 1215 (9th Cir. 2012).


23

The Supreme Court explained further that criminal jurisdiction in Indian

country “does not rely on a racial classification but depends on whether a person

enjoys the unique status of sufficient links to a formerly sovereign nation to be an

‘Indian.’” Antelope, at 646. Thus, Tenth Circuit precedent applying a two-part

evidentiary test to determine whether a person is an Indian for the purposes of federal

law found in Prentiss approved a totality-of-the evidence approach. Id., at 1283

(emphasis added). In this case, the facts show that Mr. Hackford possesses the unique

status to be Indian.

Further, the Ute Partition Act has been unequivocally abandoned by all three

branches of the federal government, and any reliance on the legislation as backing

for Defendants’ motion must be discarded, and their motion must fail.

IV. EXCLUDING APPELLANT FROM FEDERAL CRIMINAL

JURISDICTION BASED ON THE UTE PARTITION ACT TREATS

APPELLANT DIFFERENTLY FROM OTHER INDIANS WHO HAVE

BEEN TERMINATED AND ARE NOT MEMBERS OF A FEDERALLY

RECOGNIZED TRIBE AND IS UNCONSTITUTIONAL

Equal protection provides that “a statute shall not treat similarly situated

persons differently unless the dissimilar treatment is rationally related to a

legitimate legislative objective.” United States v. Weed, 389 F.3d 1060, 1071 (10th

Cir. 2004) (quotation omitted). Treatment of the mixed bloods differently than the

remaining tribe members is violation of equal protection.


24

Although the Tenth Circuit in 1997 found that the Ute Partition Act did not

constitute improper racial discrimination and did not violate due process and equal

protection under the Fifth Amendment, United States v. Von Murdock, 132 F.3d

534, 535 (10th Cir. 1997), the Court in that case provided no equal protection

analysis. The Court held that the Ute Partition Act did not violate the defendant's

procedural due process by failing to provide personal notice to him. The Court

stated that “[t]he purpose of the UTA was to end federal supervision over the Ute

Tribe. In pursuit of that goal, Congress determined that not all Tribal members were

similarly situated with respect to their ability to manage their own affairs.” Id., at

541. The Court explained that “Congress divided the Tribe into two classes, one

whose members Congress had reason to believe were approaching the point at

which federal supervision over them could be ended, and one whose members were

not.” Id., at 541-542.

The Tenth Circuit did not explore the question of a rational basis for

"legislation that singles out Indians for particular and special treatment." Morton v.

Mancari, 417 U.S. 535, 554-555, 94 S. Ct. 2474, 2485 (1974). "As long as the

special treatment can be tied rationally to the fulfillment of Congress' unique

obligation toward the Indians, such legislative judgments will not be disturbed." Id.

at 555. "Equal protection provides that a statute shall not treat similarly situated

persons differently unless the dissimilar treatment is rationally related to a


25

legitimate legislative objective." United States v. Shavanaux, 647 F.3d 993, 1002

(10th Cir. 2011) (quoting Weed, at 1071.

In this instance, the special treatment cannot be tied rationally to the

fulfillment of Congress' “unique obligation toward the Indians” because the Ute

Partition Act was officially abandoned in 1958. Termination as a policy was

“effectively abandoned by Congress.” Superior Oil Co. v. Merritt, 619 F.Supp. 526,

532 fn2 (D. Utah 1985) (“The prior policy of coercive termination of Indian tribes

was officially abandoned in 1958…”). Tribal self-determination within a continuing

federal trusteeship was adopted as the controlling policy. United States v. Felter,

546 F.Supp. 1002, 1006 n. 5 (D. Utah 1982). In fact, this Court stated that

“[t]ermination as a policy was effectively abandoned by Congress […] in favor of

tribal self-determination within a continuing federal trusteeship.” Ute Distribution

Corp., at 1261 fn1 (D. Utah 1998), citing Felter, at 1006.

In light of the abandonment of this policy more than 40 years ago, the statute

cannot rationally or reasonably be said to be tied to the fulfillment of Congress'

obligation toward Indians.

V. MR. HACKFORD’S CASE IS NOT BARRED BY COLLATERAL

ESTOPPEL

In a prior case, Judge Jenkins in the district court ruled that Mr. Hackford

was not an Indian based on the Ute Partition Act, Section 677(v) and dismissed the


26

case. That decision was appealed. However, prior to any hearing or briefing on the

matter in this Court, Judge Jenkins reversed himself and set the matter for a pretrial

conference and motion hearing. At that hearing, Judge Jenkins did not make any

factual findings regarding Mr. Hackford’s Indian status. He found: (i) the offense

did not occur in Indian Country; and (ii) the answer to this question is

determinative, Judge Jenkins further noted, we do not need to deal with the status of

Petitioner in this instance. He went on to state that “as a matter of courtesy, it seems

to me I can go ahead and make a determination that Plaintiff Mr. Hackford lacks

status because he is not a member of a recognized tribe (Transcript from Case No.

2:75-cv-00408-BSJ, May 28, 2015 Final Pretrial Conference and Motion Hearing,

pages 52-53).

The District Court found that Appellant’s claim was meritless. In so finding,

Jenkins held that “[t]he Ute Tribe likewise contends that Mr. Hackford is not an

"Indian" as that term is defined by federal law. It is the Ute Tribe's position,

therefore, that Mr. Hackford is subject to the jurisdiction of the State of Utah and

Wasatch County.” Hackford v. Utah, No. 2:75-cv-00408, 2015 U.S. Dist. LEXIS

107301, at *4 (D. Utah Aug. 7, 2015). The Court concludes that “Mr. Hackford is

not an Indian…” Id.

The 10th Circuit Court of Appeals then affirmed Judge Jenkins’ ruling that the

offense was not in Indian Country, but did not address the courtesy ruling regarding


27

Mr. Hackford’s Indian status. The District Court did not address the issue of

Appellant’s Indian status and failed to provide any findings of fact on that issue in

its dismissal of his claim.

A. THE DISTRICT JUDGE MADE NO FINDINGS OF FACT ON THE

ISSUE OF APPELLANT’S INDIAN STATUS

URCP Rule 52(a)(6) states that “[t]he trial court need not enter findings of

fact and conclusions of law in rulings on motions granted under Rules 12 (b), 50,

56, and 59, but, when the motion is based on more than one ground, the court must

issue a brief written statement of the ground for its decision.” Id.

Where the district court made no findings of fact, this court will review the

case to determine whether the district court abused its discretion. In similar actions,

this Court has remanded the case back to the district court for the purpose of

holding an evidentiary hearing and making findings of fact. United States v.

Friesen, 853 F.2d 816, 817 (10th Cir. 1988). See United Bhd. of Carpenters &

Joiners v. Brown, 343 F.2d 872, 884 (10th Cir. 1965) (“The lower court made no

findings of fact on these matters and the case must be remanded for that purpose.”);

United States v. Soria-Garcia, 947 F.2d 900, 902 n.1 (10th Cir. 1991) (Court regards

its standard of review to be de novo when the district judge “in reality made no

‘findings of fact’ which could be reviewed under a clearly erroneous standard.”).


28

B. COLLATERAL ESTOPPEL DOES NOT BAR APPELLANT’S CLAIM

The Court of Appeals affirmed Judge Jenkins ruling that the offense was not

in Indian Country but did not address the issue of Indian status. Because this

Court’s decision does not address Indian status, Appellant’s claim is not barred by

collateral estoppel or issue preclusion.

1. Issue preclusion in general

Collateral estoppel, also known as issue preclusion, refers “to the effect of a

judgment in foreclosing relitigation of a matter that has been litigated and decided.”

Murdock v. Ute Indian Tribe of Uintah & Ouray Reservation, 975 F.2d 683, 686

(10th Cir. 1992), quoting Marrese v. American Academy of Orthopaedic Surgeons,

470 U.S. 373, 376, 84 L. Ed. 2d 274, 105 S. Ct. 1327 n.1 (1985). “Under collateral

estoppel, once a court has decided an issue of fact or law necessary to its judgment,

that decision may preclude relitigation of the issue in a suit on a different cause of

action involving a party to the first case.” Id., quoting Allen v. McCurry, 449 U.S.

90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980) (citation and footnote omitted).

Issue preclusion “bars a party from relitigating an issue once it has suffered

an adverse determination on the issue, even if the issue arises when the party is

pursuing or defending against a different claim.” Moss v. Kopp, 559 F.3d 1155,


29

1161 (10th Cir. 2009). The Tenth Circuit recognized four requirements of issue

preclusion:

(1) the issue previously decided is identical with the one presented in

the action in question, (2) the prior action has been finally adjudicated

on the merits, (3) the party against whom the doctrine is invoked was a

party, or in privity with a party, to the prior adjudication, and (4) the

party against whom the doctrine is raised had a full and fair opportunity

to litigate the issue in the prior action.

Park Lake Res. Ltd. Liab. Co. v. U.S. Dep't of Agric., 378 F.3d 1132, 1136 (10th

Cir. 2004).

“Although not always explicitly stated as an element of issue preclusion,

federal law requires that ‘the issue has been “actually litigated” in order for it to

have preclusive effect.” EnTitle Ins. Co. v. Durling (In re Durling), 500 B.R. 96,

101 (Bankr. D. Utah 2013).

2. The prior action has not been finally adjudicated on the merits

The second element of issue preclusion requires a "final adjudication on the

merits." What constitutes a "final" adjudication for issue preclusion purposes is not

precisely defined by existing case law. Traditionally, finality for purposes of

preclusion was equated with finality for purposes of appeal. Clark v. Zwanziger (In

re Zwanziger), 467 B.R. 475, 483-84 (B.A.P. 10th Cir. 2012), reversed on other

grounds, 741 F.3d 74, 75 (10th Cir. 2014), citing 18A CHARLES ALAN WRIGHT &


30

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE CIVIL § 4432 (2d ed.

2002). But more recent decisions have expanded the definition of finality beyond

the traditional restrictions. Id., citing B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531

F.3d 1282, 1301 (10th Cir. 2008) ("To invoke issue preclusion there need not be a

prior adjudication on the merits (as is often the case with res judicata) but only a

final determination of a material issue common to both cases.") (internal quotation

marks omitted).

Adjudication on the merits requires that the adjudication be necessary to the

judgment. See Block v. Commissioners, 99 U.S. 686, 693, 25 L. Ed. 491 (1878)

("[A] judgment of a court of competent jurisdiction is [as between the parties or

their privies] everywhere conclusive evidence of every fact upon which it must

necessarily have been founded.") (emphasis added).

3. The decision of the issue of Indian status was not necessary to judgement.

“For the purpose of issue preclusion (collateral estoppel)…relitigation of an

issue presented and decided in a prior case is not foreclosed if the decision of the

issue was not necessary to the judgment…” Murdock, at 687-88, quoting Segal v.

American Tel. & Tel. Co., 606 F.2d 842, 845 & n.2 (9th Cir. 1979) (“Issue

preclusion, unlike bar, forecloses litigation only of those issues of fact or law that


31

were actually litigated and necessarily decided by a valid and final judgment

between the parties, whether on the same or a different claim.”).

In this case, there has not been a judgment of conclusive evidence of every

fact—specifically, on the issue of Appellant’s Indian status. Further, the issue of

Indian status was not necessary to the judgment concerning the motion to dismiss

on the issue of whether the incident occurred in Indian Country, along with this

Court’s affirmance of that issue. Thus, the second element of issue preclusion is not

satisfied.

4. Appellant has not been given a full and fair opportunity to litigate the issue

in the prior action

The Tenth Circuit explains that the inquiry into whether a party had a full and

fair opportunity to litigate an issue “often…will focus on whether there were

significant procedural limitations in the prior proceeding, whether the party had the

incentive to litigate fully the issue, or whether effective litigation was limited by the

nature or relationship of the parties.” Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507,

1520 (10th Cir. 1990). See Park Lake Res. Ltd. Liab. Co. v. U.S. Dep't of Agric.,

378 F.3d 1132, 1136 (10th Cir. 2004) (“In contrast to claim preclusion, issue

preclusion bars a party from relitigating an issue once it has suffered an adverse

determination on the issue, even if the issue arises when the party is pursuing or

defending against a different claim.").


32

It is clear that there were significant procedural limitations in the prior

proceeding with regard to Appellant’s issue of Indian status. Judge Jenkins merely

declared, as a matter of courtesy, that “Mr. Hackford is not an Indian…” Hackford

v. Utah, 2015 U.S. Dist. LEXIS 107301, at *4. This was based only on the Ute

Tribe's position that “Mr. Hackford is subject to the jurisdiction of the State of Utah

and Wasatch County.” Id, and that Mr. Hackford was not a member of a federally

recognized tribe – a matter that was not contested.

In light of this, it is clear that the claim of issue preclusion is not applicable

because only one of the four elements has been satisfied; the other three do not meet

the threshold articulated by this Court.

CONCLUSION

Based on the arguments above, the Tenth Circuit should reverse the decision

of the district court dismissing Appellant’s claims.

Respectfully submitted this 19th day of December, 2019.

ELIZABETH A. SHAFFER, PLLC

/s/ Elizabeth A. Shaffer (digitally)__




Attorney for Plaintiff-Appellant

Richard D. Hackford


33

CERTIFICATE OF COMPLIANCE

Section 1. Word Count

As required by Fed. R. J.A. P. 32(a)(7)(c), I certify that this brief is proportionally

spaced and contains 5739 words and 514 lines.

Complete one of the following:

__x__ I relied on my word processor to obtain the count and it is Microsoft

Word 2010.

_____ I counted five characters per word, counting all characters including

citations and numerals.

I certify that the information on this form is true and correct to the best of my

knowledge and belief formed after reasonable inquiry.

By:

/s/ Elizabeth A. Shaffer (digitally)



Richard D. Hackford


34

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY

REDACTIONS

I hereby certify that with regard to the foregoing copy of APPELLANT’S

BRIEF, that all required privacy redactions have been made. That the hard copies to

be submitted to the court are exact copies of the version submitted electronically

and that the electronic submission was scanned for viruses.

Respectfully submitted this 19th day of December, 2019.

ELIZABETH A. SHAFFER, PLLC





Telephone 435-655-3033

Facsimile 435-655-3233


Richard D. Hackford


35

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of December, 2019 a copy of the foregoing

APPELLANT’S BRIEF was served via the ECF/NDA system which will send

notification of such filing to all parties of record as follows:

ERIN T. MIDDLETON

SEAN D. REYES

Utah Attorney General

Utah State Capitol Complex

350 North State Street, Suite 230

Salt Lake City, Utah 84114-2320

[email protected]

[email protected]

Attorneys for Appellees State of Utah

JESSE C. TRENTADUE

Suitter Axland, PLLC

8 E. Broadway, Ste. 200

Salt Lake City, Utah 84111

[email protected]

Attorneys for Uintah County Appellees



Richard D. Hackford


mailto:[email protected]



IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH RICHARD DOUGLAS HACKFORD,

Plaintiff, vs. THE STATE OF UTAH, et al.,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS

Case No. 2:18-cv-631

Judge Clark Waddoups

Before the court are the motions to dismiss by defendants the State of Utah; Gary

Herbert; and Sean D. Reyes (the “State Defendants”) (ECF No. 20) and Uintah County, Utah;

Uintah County Attorney, Mark Thomas; and Deputy Uintah County Attorney Loren Anderson

(the “County Defendants”) (ECF No. 24), which seek to dismiss plaintiff Richard Douglas

Hackford’s Complaint for Declaratory and Injunctive Relief. The motions have been fully

briefed, and the court heard oral argument on the same on June 5, 2019. At the hearing, the court

granted the defendants’ motions to dismiss. The court now issues the following order to

substantiate its oral ruling GRANTING defendants’ motions to dismiss.

1. On an undisclosed date, Mr. Hackford, was cited for a traffic offense in Ballard,

Utah, by a member of the Uintah County Sheriff’s Department. (ECF No. 2, at ¶ 7, Compl.)

2. On August 10, 2018 Mr. Hackford filed his complaint before this court in which

he alleges that the offense occurred within the Uintah Reservation, and that because he is an

Indian, Uintah County and the State of Utah do not have jurisdiction over him.

3. Mr. Hackford’s complaint seeks an injunction prohibiting Defendants from

prosecuting this matter and declaratory relief stating: 1) that the Federal Court is the proper court

Case 2:18-cv-00631-CW Document 35 Filed 06/13/19 Page 1 of 5

36


2

to determine the question of his status as an Indian; 2) that he is an Indian; and 3) that the Federal

Court is the proper court for jurisdiction.1

4. Mr. Hackford brought nearly identical claims before this court in 2014, in an

action challenging a traffic citation he received in Wasatch County. The court denied Mr.

Hackford’s claims and dismissed his case, finding that “Mr. Hackford, despite his claim to be of

Indian heritage, is not an Indian so as to be beyond the criminal jurisdiction of the State and/or

Wasatch County,” and that “Mr. Hackford is not an Indian, and the site of the offense was not

within Indian Country.” Hackford v. Utah, No. 2:13-CV-00276, 2015 WL 4717639, at *2 (D.

Utah Aug. 7, 2015), aff'd, 845 F.3d 1325 (10th Cir. 2017).2

5. Mr. Hackford appealed this ruling, and the Tenth Circuit upheld the dismissal on

the basis that the offense did not occur in Indian Country. Hackford v. Utah, 845 F.3d 1325

(10th Cir. 2017), cert. denied, 138 S. Ct. 206 (2017). The appellate court did not reach the issue

of whether Mr. Hackford was an Indian.

6. This country has a “deeply rooted” policy “of leaving Indians free from state

jurisdiction and control.” Rice v. Olson, 324 U.S. 786, 789 (1945) (citations omitted). As such,

“‘within Indian country, generally only the federal government or an Indian tribe may prosecute

Indians for criminal offenses.’” Hackford, 845 F.3d at 1327, cert. denied, 138 S. Ct. 206 (2017)

(quoting Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah (Ute VI), 790 F.3d 1000,

1 Mr. Hackford’s prosecution in state court has been stayed pending the disposition of this action. Thus, the Younger abstention doctrine is not triggered. See Sw. Air Ambulance, Inc. v. City of Las Cruces, 268 F.3d 1162, 1178 (10th Cir. 2001) (when a state court has “stayed its own proceedings in favor of federal resolution of the issues,” “an essential predicate to Younger abstention is absent: the presence of an ongoing state prosecution” (emphasis in original) (citations omitted)). Moreover, because Mr. Hackford is not asking this court to stay the state proceedings, the Anti-Injunction Act does not bar the court’s resolution of this action. See 28 U.S.C. § 2283 2 Defendants argue that Mr. Hackford should be barred, under the doctrine of collateral estoppel, from raising his current claims. While the court acknowledges that Mr. Hackford has clearly already had his day in court on these claims, it declines to find, on a motion to dismiss, that he is collaterally estopped from raising those claims here. Garcia v. Int'l Elevator Co., 358 F.3d 777, 782 (10th Cir. 2004) (“Whether res judicata or collateral estoppel bars this action in whole or part is more appropriately decided in the context of a motion for summary judgment than it is in the context of a defendant’s motion to dismiss.” (citations omitted)).


37


3

1003 (10th Cir. 2015)). “The Supreme Court has specifically held that ‘Congress has not granted

criminal jurisdiction to the State of Utah to try crimes committed by Indians in Indian Country.’”

Id. (quoting Hagen v. Utah, 510 U.S. 339, 408 (1994)).

7. Mr. Hackford asserts that the place of the alleged traffic offense, on or about the

intersection of 1000 North and 1500 East in Ballard, Utah, is in Indian Country. (ECF No. 2, at

¶¶ 10–11, Compl.) Representatives of the defendants have stipulated to this fact. Id. at ¶ 13. On

a motion to dismiss, the court accepts that stipulation as true. See Schrock v. Wyeth, Inc., 727

F.3d 1273, 1280 (10th Cir. 2013). As such, for purposes of this order, Mr. Hackford has

established that the offense occurred within “Indian Country.”

8. Under the Ute Partition Act, Mr. Hackford is a “Mixed Blood” Ute Indian. (ECF

No. 2, at ¶ 15, Compl.) His Role Number is 142. Id.

9. Section 677v of the Ute Partition Act states that “[u]pon removal of Federal

restrictions on the property of each individual mixed-blood member of the tribe, the Secretary

shall publish in the Federal Register a proclamation declaring that the Federal trust relationship

to such individual is terminated. Thereafter, such individual shall not be entitled to any of the

services performed for Indians because of his status as an Indian. All statutes of the United

States which affect Indians because of their status as Indians shall no longer be applicable to

such member over which supervision has been terminated, and the laws of the several States

shall apply to such member in the same manner as they apply to other citizens within their

jurisdiction.” 25 U.S.C. § 677v (emphasis added).

10. On August 25, 1961, the Secretary of the Interior published a proclamation

“declaring that the Federal trust relationship to such individual is terminated.” See Termination

of Federal Supervision Over the Affairs of the Individual Mixed-Blood Members, 26 Fed. Reg.


38


4

8042 (Aug. 25, 1961).

11. As such, under the clear and express language of the Ute Partition Act, Mr.

Hackford is subject to “the laws of the several States . . . in the same manner as they apply to

other citizens within their jurisdiction.” See 25 U.S.C. § 677v.

12. Mr. Hackford’s claim that he is immune from state prosecution because he is an

Indian is expressly precluded by the Ute Partition Act and is therefore meritless.

13. This finding is consistent with the court’s prior recognition that “despite his claim

to be of Indian heritage, [Mr. Hackford] is not an Indian so as to be beyond the criminal

jurisdiction of the State and/or Wasatch County.” Hackford, No. 2:13-CV-00276, 2015 WL

4717639, at *2.

14. Because Mr. Hackford’s claim is meritless, he cannot establish that he is

“substantially likely to succeed on the merits” of his claim. See New Mexico Dep't of Game &

Fish v. United States Dep't of the Interior, 854 F.3d 1236, 1246 (10th Cir. 2017). His claim for

an injunction therefore fails and must be dismissed. See Emps.’ Ret. Sys. of R.I. v. Williams Cos.,

Inc., 889 F.3d 1153, 1161 (10th Cir. 2018) (“To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))).

15. Moreover, because Mr. Hackford’s claim that he is immune from state

prosecution because he is an Indian is meritless, the court determines that the declaratory

judgments he seeks would neither settle the controversy at issue (because there is no controversy

at issue) nor “serve a useful purpose in clarifying the legal relations at issue” (because there is no

legal relation at issue). Mid-Continent Cas. Co. v. Vill. at Deer Creek Homeowners Ass'n, Inc.,

685 F.3d 977, 980 (10th Cir. 2012). As such, it declines to hear Mr. Hackford’s claims for


39


5

declaratory relief and therefore dismisses the same. Id.

16. For the reasons stated herein, the motions to dismiss filed by the State Defendants

(ECF No. 20) and the County Defendants (ECF No. 24), are HEREBY GRANTED, and

Plaintiff’s Complaint for Declaratory and Injunctive Relief is hereby DISMISSED WITH

PREJUDICE.

Dated this 13th day of June, 2019.

BY THE COURT:

________________________________________ Clark Waddoups United States District Judge


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case no. 19-4093...2020/09/10 · utah, no. 2:13-cv-00276, 2015 wl 4717639, (d. utah aug. 7, 2015),...

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