Timpanogos Tribe, Snake Band of Shoshone Indians of Utah Territory v. Kevin Conway, Assistant Director, Utah Department of Natural Resources, Division of Wildlife Resources Michael O. Leavitt, Governor of the State of Utah, Ute Indian Tribe of the Uintah and Ouray Reservation, Utah, Amicus Curiae

Citations: 286 F.3d 1195; 2002 U.S. App. LEXIS 6859Docket: 01-4056

Court: Court of Appeals for the Tenth Circuit; April 15, 2002; Federal Appellate Court

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The Timpanogos Tribe, representing the Snake Band of Shoshone Indians of Utah Territory, initiated a lawsuit against Kevin Conway, Assistant Director of the Utah Department of Natural Resources, and Governor Michael Leavitt, contesting their authority over hunting, fishing, and gathering rights within the Uintah Valley Reservation. The Tribe sought a declaration affirming its status as the "Indians of Utah" under historical executive and congressional acts, and aimed to secure recognition of its rights to these activities without state interference unless explicitly authorized by Congress or consented by the Tribe.

The defendants moved to dismiss the case on several grounds, including Eleventh Amendment immunity, res judicata, lack of subject matter jurisdiction, failure to join indispensable parties, and laches. The district court, however, denied the motion, allowing the Tribe to narrow its claims to seek only prospective, non-monetary injunctive relief under the Ex parte Young exception to sovereign immunity.

On appeal, while addressing the jurisdictional concerns, the court noted that it typically only has jurisdiction over final decisions, but acknowledged that exceptions exist for judgments that decisively determine separate claims collateral to the main action. The court ultimately affirmed the district court's denial of the motion to dismiss, focusing on the Eleventh Amendment immunity and subject matter jurisdiction issues.

Orders that deny claims of absolute and qualified immunity for individual officials are subject to immediate appeal, as established in case law, including *Mitchell v. Forsyth* and *Nixon v. Fitzgerald*. The Supreme Court extended the Cohen collateral-order doctrine to allow states and state entities claiming Eleventh Amendment immunity to appeal district court orders denying such claims, thereby affirming appellate jurisdiction over these immunity claims. 

Defendants also sought pendant appellate jurisdiction over additional claims such as res judicata and subject matter jurisdiction; however, none of these claims independently qualify for interlocutory appeal. The collateral order doctrine permits interlocutory appeals for decisions that are conclusive, address significant questions distinct from the merits, and cannot be effectively reviewed post-judgment. The *Swint v. Chambers County Commission* case clarified that pendant claims can be appealed only if they meet the criteria of the Cohen doctrine.

In their request for pendent appellate jurisdiction, defendants referenced a Fifth Circuit case but failed to align with the Tenth Circuit's standards, which generally disfavor such jurisdiction. The Tenth Circuit interprets that pendent appellate jurisdiction may apply only when the nonappealable decision is inextricably linked to the appealable one. Defendants did not substantiate why their claims relating to res judicata, Rule 19(b), exhaustion, and laches are inextricably intertwined with the Eleventh Amendment claim, leading the court to conclude that there is no basis for exercising appellate jurisdiction over these claims.

Defendants argue that the Tribe has not established a basis for subject matter jurisdiction under 28 U.S.C. 1331. The Supreme Court emphasizes that jurisdiction must be determined before addressing case merits (Steel Co. v. Citizens for a Better Environment). In this context, the appellate court prioritizes jurisdictional questions, noting that if a lower court lacks jurisdiction, the appellate court must recognize this defect. The court agrees with the Second Circuit's ruling in Merritt v. Shuttle, Inc., which states that resolving jurisdictional issues in an interlocutory appeal is appropriate to ensure a thorough review of the district court's denial of Eleventh Amendment immunity. The existence of subject matter jurisdiction is critical for the district court's authority to issue rulings. The court cites the principle that a court acting without jurisdiction acts ultra vires.

In this case, the appellate court has jurisdiction to review whether the district court possessed subject matter jurisdiction regarding the Tribe's claim. Defendants contend that the district court lacks jurisdiction because the Tribe has not asserted a federal question, primarily arguing that the Tribe is not a "federally recognized" tribe. To determine if the Tribe has claimed a federal question concerning its hunting rights on the Reservation, the court examines the historical relationship between Indian tribes and the U.S. government, noting that Indian nations historically held "aboriginal title" to their lands.

Fee title to lands occupied by Indians at the time of colonization vested in sovereign entities, but Indian tribes retained a recognized right of occupancy known as Indian title, which could only be terminated by sovereign action. Following the establishment of the United States and the adoption of the Constitution, these tribal rights became governed exclusively by federal law. Indian title, recognized as a right of occupancy, could only be extinguished by the United States.

The federal government has acknowledged Indian land rights through treaties, statutes, and executive orders. Treaties that recognize Indian title or permanent rights to land create enforceable property rights for tribes, even if they do not explicitly mention them. The Uintah Valley reservation was created by executive order and authorized by Congress, recognizing the exclusive rights of tribes to occupy the area, which includes hunting rights.

Generally, Indians possess exclusive treaty rights to hunt and fish on their reserved lands unless these rights were explicitly relinquished or modified by Congress. Federal law governs Indian title, which can only be extinguished with federal consent. In this case, despite the defendants’ argument that the Tribe's lack of federal recognition precludes jurisdiction under section 1331, the claim is still valid under federal law, as the Tribe asserts its rights based on a federal statute.

In 1978, the Department of the Interior established regulations for the administrative recognition of American Indian tribes, which is necessary for those tribes to access federal protections, services, and benefits. However, recognition by the federal government has historically occurred through various means, and tribes cannot simply be categorized as "recognized" or "nonrecognized" for all purposes. A tribe may have legal existence in some contexts but not in others.

Importantly, the Department of the Interior cannot abrogate Indian treaties; only Congress can do so with clear intent. Consequently, a tribe’s lack of administrative recognition does not negate its vested treaty rights. Non-recognition may result in the loss of certain statutory benefits but does not affect treaty rights. The Tribe can therefore assert federal question jurisdiction regarding its hunting rights, regardless of its recognition status.

The defendants reference the case of Western Shoshone Bus. Council v. Babbitt, asserting that the Tribe's unrecognized status precludes its ability to claim rights under the Act related to the Uintah reservation. However, this case is distinguishable as it involved a statute requiring official recognition for monetary contracts, which the Tribe lacked. In contrast, the statute establishing the reservation did not create new benefits but recognized preexisting rights, thus allowing the Tribe to assert its rights without being hindered by its lack of recognition.

Defendants challenge the subject matter jurisdiction under section 1331, arguing that the Tribe lacks standing to assert rights under the Act that established the Reservation, claiming it is not a tribe for whose benefit the Reservation was created. However, the defendants did not raise this argument in the district court, and the court must accept the Tribe's factual allegations as true when considering a motion to dismiss under Rule 12(b)(6). The Tribe's allegations are deemed sufficient to demonstrate applicability of the Act.

Defendants further argue that the Tribe cannot enforce its rights under the Act, citing Cort v. Ash to suggest that the Act does not create a private cause of action. Nonetheless, numerous cases have allowed tribes to sue to enforce rights protected by treaties, statutes, and executive orders without conducting a Cort analysis. For example, the Supreme Court has affirmed a federal common-law right for tribes to sue for aboriginal land rights, noting that the Nonintercourse Act of 1793 does not pre-empt these rights, as it lacks a comprehensive remedial plan for violations of Indian property rights.

Defendants reference Pelt v. State of Utah, which is distinguishable as it involved a breach of fiduciary duty regarding oil and gas royalties rather than a suit to enforce recognized Indian rights. The court finds no precedent requiring tribes to meet the Cort v. Ash criteria when asserting rights under treaties or statutes and thus concludes that the district court had subject matter jurisdiction under section 1331, proceeding to address the merits regarding Eleventh Amendment immunity.

Defendants, as state officials, assert Eleventh Amendment immunity from the Tribe's suit, which typically bars federal court actions against a state by its citizens or citizens of another state, as established in *Hans v. Louisiana*. However, under the *Ex parte Young* doctrine, suits against state officials seeking prospective, equitable relief for federal law violations can proceed. The Tribe's initial complaint raised broad concerns that implicated Eleventh Amendment issues; however, the district court advised the Tribe to narrow its claims. Subsequently, the Tribe amended its complaint to seek only an injunction against Utah state officials from prosecuting Timpanogos Tribe members for hunting, fishing, and gathering on Indian lands within the Uintah Reservation.

The Tribe acknowledged its obligation to conform its pleadings to the court's guidance. The defendants conceded that the current issue pertains solely to the Tribe's rights to hunt and fish on Indian land, which fits within the *Ex parte Young* exception. A four-part analysis confirms the applicability of this doctrine: the case is against state officials, the officials' conduct allegedly violates federal law, the relief sought is prospective and not retroactive, and the suit does not implicate special sovereignty interests as the state has no authority over Indian land or its gaming laws. The district court's ruling that the Eleventh Amendment does not apply is affirmed, and the motion to dismiss is denied.

Denial of a motion to dismiss for lack of subject matter jurisdiction typically isn't subject to interlocutory review, as established in Catlin v. United States. However, interlocutory appellate jurisdiction exists in this case due to the defendants' claim of Eleventh Amendment immunity, which relates directly to the district court's subject matter jurisdiction over the Tribe's claim. Indian reservations, regardless of their creation method—statute, agreement, executive order, or treaty—carry similar legal implications, evidenced by United States v. Dion. Additionally, existing regulations derive authority from specific statutes, notably 5 U.S.C. 301; 25 U.S.C. 2, 9; and 43 U.S.C. 1457. The term "tribe" lacks a universal legal definition; no single federal statute universally defines an Indian tribe, even though the Constitution and numerous federal statutes reference the term.