                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                     PUBLISH
                                                                     MAY 8 1997
                   UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                          Clerk
                               TENTH CIRCUIT



 UTE INDIAN TRIBE OF THE
 UINTAH AND OURAY
 RESERVATION,

             Plaintiff - Appellee,

       v.                                            No. 96-4073

 STATE OF UTAH; DUCHESNE
 COUNTY, a political subdivision of
 the State of Utah; ROOSEVELT
 CITY, a municipal corporation;
 DUCHESNE CITY, a municipal
 corporation; UINTAH COUNTY, a
 political subdivision of the State of
 Utah,

             Defendants - Appellants,

       and

 UNITED STATES OF AMERICA,

             Amicus Curiae.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF UTAH
                     (D. Ct. No. 75-CV-408-J)


John W. Andrews, Assistant Attorney General (Jan Graham, Attorney General,
Carol Clawson, Solicitor General, Reed Richards, Chief Deputy Attorney General,
and Michael M. Quealy, Assistant Attorney General, with him on the brief),
Office of the Attorney General for the State of Utah, Salt Lake City, Utah,
appearing for Defendant-Appellant State of Utah.

JoAnn B. Stringham, Uintah County Attorney, Vernal, Utah, on the briefs for
Defendant-Appellant Uintah County.

Herbert W. Gillespie, Duchesne County Attorney, Roosevelt, Utah, on the briefs
for Defendant-Appellant Duchesne County.

Robert S. Thompson, III, General Counsel, Ute Indian Tribe, Fort Duchesne, Utah
(Sandra Hansen, Deputy General Counsel, Ute Indian Tribe, Fort Duchesne, Utah,
and Tod J. Smith, Whiteing & Smith, Boulder, Colorado, with him on the brief),
appearing for Plaintiff-Appellee.

Robert L. Klarquist, U.S. Attorney (Lois J. Schiffer, Assistant Attorney General,
Edward J. Shawaker, U.S. Attorney, and Curtis G. Berkey, U.S. Attorney, with
him on the brief), Department of Justice, Washington, DC, appearing for amicus
curiae United States of America.


Before TACHA, GODBOLD, * and HOLLOWAY, Circuit Judges.


TACHA, Circuit Judge.


      This appeal requires us to address once again the status of the Uintah

Valley Indian Reservation. In the district court, the Ute Indian Tribe (“Tribe”)

sought to obtain a permanent injunction preventing the State of Utah, the counties

of Duchesne and Uintah, and the cities of Roosevelt and Duchesne (“state and

local defendants”) from exercising civil and criminal jurisdiction on certain lands




      The Honorable John C. Godbold, Senior Circuit Judge, United States Court of
      *

Appeals for the Eleventh Circuit, sitting by designation.

                                        -2-
within the original exterior boundary of the Uintah Valley Reservation in a

manner inconsistent with our en banc opinion in Ute Indian Tribe v. Utah, 773

F.2d 1087 (10th Cir. 1985) (en banc), cert. denied, 479 U.S. 994 (1986). In

opposing the injunction, the state and local defendants rely on Hagen v. Utah, 510

U.S. 399 (1994), in which the Supreme Court held, contrary to our decision in Ute

Indian Tribe, that the lands in question are not part of the Uintah Valley

Reservation. Notwithstanding Hagen, the district court held that it was bound

under the “law of the case” doctrine to follow our mandate in Ute Indian Tribe

and thus, that it was without authority to alter the existing jurisdictional

boundaries as set forth in Ute Indian Tribe. In light of the inconsistency between

Ute Indian Tribe and Hagen, however, the district court requested that we issue

instructions on how to proceed and suggested that we construe the request as an

invitation to recall our mandate in Ute Indian Tribe.

      The state and local defendants appeal, arguing that (1) our en banc decision

in Ute Indian Tribe does not preclude their exercise of jurisdiction over former

reservation lands under the doctrines of law of the case, collateral estoppel, or res

judicata and (2) Hagen effectively overruled Ute Indian Tribe, permitting the

defendants to exercise jurisdiction over all the lands originally held to be within

reservation boundaries. Along with their appeal, the state and local defendants

have filed a motion to recall, in its entirety, our mandate issued pursuant to Ute


                                          -3-
Indian Tribe. The United States as amicus curiae urges us to recall and modify

the mandate in Ute Indian Tribe only to the extent that it directly conflicts with

Hagen. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because we

conclude that the boundaries of the Uintah Valley Reservation must be

redetermined in light of Hagen, we modify our holding in Ute Indian Tribe to the

extent that it directly conflicts with the holding in Hagen.

                                  BACKGROUND

I.    I NTRODUCTION

      This case is unlike other reservation diminishment cases in which courts

must decide whether congressional enactments opening reservation lands to non-

Indian settlement have diminished or disestablished reservation boundaries. See,

e.g., Solem v. Bartlett, 465 U.S. 463 (1984); Rosebud Sioux Tribe v. Kneip, 430

U.S. 584 (1977); DeCoteau v. District County Court, 420 U.S. 425 (1975); Mattz

v. Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent of Wash. State

Penitentiary, 368 U.S. 351 (1962); United States v. Celestine, 215 U.S. 278

(1909). Over a decade ago, we answered that question when we addressed

whether congressional enactments from 1902 through 1905 had the effect of

diminishing the Uintah Valley Reservation. Ute Indian Tribe, 773 F.2d at 1093.

Sitting en banc in 1985, we held that the Reservation had not been diminished.

Id. The Supreme Court denied certiorari on December 1, 1986. Ute Indian Tribe


                                         -4-
v. Utah, 479 U.S. 994 (1986).

      The State of Utah sought to relitigate the boundary issue in three criminal

actions commenced in the Utah state courts. In these cases, the Utah Supreme

Court concluded that the 1902-1905 allotment legislation had diminished the

Uintah Valley Reservation. State v. Hagen, 858 P.2d 925 (Utah 1992); State v.

Coando, 858 P.2d 926 (Utah 1992); State v. Perank, 858 P.2d 927 (Utah 1992).

      In 1994, the Supreme Court granted certiorari “to resolve the direct conflict

between these decisions of the Tenth Circuit and the Utah Supreme Court on the

question whether the Uintah Reservation has been diminished.” Hagen, 510 U.S.

at 409. The Supreme Court expressly disagreed with our decision in Ute Indian

Tribe and held that the Uintah Valley Reservation had been diminished. Id. at

421-22. In this appeal, we decide whether to modify our judgment in Ute Indian

Tribe, after the time for rehearing has passed, in light of its conflict with a later,

contrary decision of the Supreme Court.

II.   U TE I NDIAN T RIBE I-III: T HE D ISTRICT C OURT , P ANEL , AND E N B ANC
      O PINIONS

      In 1975, the Tribe sought to exercise jurisdiction over all of the land

originally encompassed in the Uintah Valley Reservation pursuant to the Tribe’s

newly enacted Law and Order Code. When non-Indians living in and around

several towns within the original boundaries protested the action, the Tribe sought

declaratory and injunctive relief in federal court to establish the exterior

                                          -5-
boundaries of the Uintah Valley Reservation and to restrain the state and local

defendants from interfering with enforcement of the Law and Order Code within

those boundaries. The Tribe argued that the original boundaries of the Uintah

Valley Reservation, established by executive order in 1861 and confirmed by

Congress in 1864, continued to exist undiminished. The Tribe thus argued that it

had jurisdiction over all of the lands encompassed within the original boundaries

of the Reservation because such lands were “Indian country” as defined by 18

U.S.C. § 1151.

      On the other hand, the state and local defendants argued that congressional

enactments from 1902 through 1905, opening Reservation lands to non-Indian

settlement and setting aside lands for a national forest reserve, had the effect of

diminishing the Uintah Valley Reservation. The defendants also argued that

congressional enactments from 1894 to 1897 had the effect of completely

disestablishing the Tribe’s Uncompahgre Reservation.

      In addressing the parties arguments, the district court gave a comprehensive

summary of the relevant legislation, legislative history, contemporaneous

interpretations by the executive branch, and other circumstances surrounding the

enactment of the legislation. We therefore only briefly summarize the legislative

treatment of the lands below.

      A.     Legislative Treatment of Reservation Lands


                                         -6-
            1.      The Uintah Valley Reservation

      In 1902, Congress passed legislation directing the Secretary of the Interior

to make individual allotments out of the Uintah Valley Reservation by October 1,

1903, provided that a majority of the adult male members of the Ute Indians

consented. Act of May 27, 1902, ch. 888, 32 Stat. 263, 263-64 (“1902 Act”).

The 1902 Act stated that after October 1, 1903, “all the unallotted lands within

said reservation shall be restored to the public domain” and subject to entry by

non-Indians under the homestead laws. Id. (emphasis added). Congress delayed

the allotment process, however, and extended the opening date in 1903 and again

in 1904. Act of Mar. 3, 1903, ch. 994, 32 Stat. 982, 997-98; Act of Apr. 21,

1904, ch. 1402, 33 Stat. 189, 207-08. In 1905, Congress extended the opening

date a third time--to September 1, 1905--and directed the Secretary to allot the

Reservation unilaterally if the Tribe’s consent was not obtained. Act of Mar. 3,

1905, ch. 1479, 33 Stat. 1048, 1069-70 (“1905 Act”). The 1905 Act did not

contain the same language restoring the unallotted and unreserved lands to the

“public domain,” but provided that such lands “shall be disposed of under the

general provisions of the homestead and townsite laws of the United States.” Id.

(emphasis added).




                                        -7-
2.   The National Forest Lands




                      -8-
      In addition to extending the time of entry under the 1902 Act and

describing the entry process, the 1905 Act authorized the President to “set apart

and reserve” lands in the Reservation as a forest reserve prior to opening. 33

Stat. 1070. Pursuant to this power, on July 14, 1905, President Theodore

Roosevelt issued a proclamation designating some 1,010,000 acres within the

Uintah Valley Reservation as an addition to the Uintah National Forest Reserve.

Proclamation of July 14, 1905, 34 Stat. 3113, 3116. The proclamation also

declared that the unallotted lands in the Uintah Valley Reservation, which were

not otherwise reserved, would “be opened to entry, settlement and disposition

under the general provisions of the homestead and townsite laws.” Id. at 3120.

             3.     The Uncompahgre Reservation

      In 1894, Congress passed legislation providing for the allotment of the

Uncompahgre Reservation to individual members of the Tribe. The legislation

stated that all unallotted lands “shall . . . be restored to the public domain and

made subject to entry” under the homestead and mineral laws. Act of Aug. 15,

1894, ch. 290, 28 Stat. 286, 337-38 (emphasis added). The allotment process,

however, was delayed, and in 1897, Congress passed legislation mandating the

allotment of the Uncompahgre Reservation and opening the unallotted lands to

entry. Act of June 7, 1897, ch. 3, 30 Stat. 62, 87.

      B.     Ute Indian Tribe I: 1981 District Court Opinion


                                         -9-
      In 1981, the district court issued Ute Indian Tribe v. Utah, 521 F. Supp.

1072 (D. Utah 1981) (hereinafter “Ute Indian Tribe I”). The district court held

that Congress’s decision to open the unallotted lands to settlement did not

diminish the Reservation’s boundaries. Id. at 1132. The court recognized that the

language of the 1902 Act directing that all unallotted lands “be restored to the

public domain” would have diminished the Reservation had the unallotted lands

then been opened for settlement. Id. at 1122. The court concluded, however, that

the 1905 Act superseded the 1902 Act. Id. Unlike the 1902 Act, the 1905 Act

provided only that the unallotted lands were to “be disposed of under” the

homestead and township laws. Id. at 1132. The district court reasoned that the

new language indicated that Congress did not intend to diminish the Reservation.

Id. The district court therefore concluded that the unallotted lands remained part

of the Uintah Valley Reservation. Id.

      The district court reached a different conclusion on the status of the

National Forest Lands and the Uncompahgre Reservation. Regarding the National

Forest Lands, the court concluded that the language in the 1905 Act empowering

the president to “set apart and reserve” timber lands for a national forest

demonstrated Congress’s clear intent to diminish the Uintah Valley Reservation.

Id. at 1136. Likewise, the district court concluded that the language in the 1894




                                        - 10 -
Act restoring unallotted reservation lands “to the public domain” showed a clear

congressional intent to disestablish the Uncompahgre Reservation. Id. at 1106.

      C.    Ute Indian Tribe II: The 1983 Court of Appeals Panel Decision

      In a two-judge majority opinion, a panel of this court affirmed the district

court opinion in part and reversed in part. Ute Indian Tribe v. Utah, 716 F.2d

1298 (10th Cir. 1983) (hereinafter “Ute Indian Tribe II”). The panel held that

none of the lands in question remained within the original reservation boundaries.

      The panel agreed with the district court that the 1902 Act’s language

restoring the unallotted lands “to the public domain” was sufficient to diminish

the Uintah Valley Reservation. Id. at 1308-09. Unlike the district court,

however, the panel concluded that the 1905 Act did not supersede Congress’s

intent to diminish the Reservation under the 1902 Act. Id. at 1311. Thus, the

panel held that the 1902-1905 allotment legislation had diminished the Uintah

Valley Reservation. Id. at 1311-12.

      The panel agreed with the district court’s conclusions regarding the

National Forest Lands and the Uncompahgre Reservation. The panel concluded

that Congress intended to withdraw the National Forest Lands, id. at 1314, and

the Uncompahgre Reservation, id. at 1307, from their original reservation status.




                                       - 11 -
        D.    Ute Indian Tribe III: The 1985 Court of Appeals En Banc
              Decision

        On rehearing en banc, a majority of the court held that all of the lands at

issue retained their reservation status. Ute Indian Tribe v. Utah, 773 F.2d 1087,

1093 (10th Cir. 1985) (en banc) (hereinafter “Ute Indian Tribe III”). The en banc

court concluded that the 1902-1905 allotment legislation did not have the effect

of diminishing or disestablishing the Uintah Valley Reservation. Id. at 1089.

Similarly, the court held that the withdrawal of the National Forest Lands did not

diminish the Uintah Valley Reservation, id. at 1090, and that the 1894 and 1897

allotment legislation did not disestablish the Uncompahgre Reservation. Id. at

1093.

        In reaching a holding completely contrary to the panel, the en banc court

relied on the newly-decided case of Solem v. Bartlett, 465 U.S. 463 (1984). The

court concluded that under Solem, congressional language restoring reservation

lands to the public domain “is not the same as a congressional state of mind to

diminish,” and hence “does not reliably establish the clear and unequivocal

evidence of Congress’ intent to change the boundaries.” Ute Indian Tribe III, 773

F.2d at 1092. Further, the court found no legislative history or other

contemporary historical evidence sufficient to support a finding of diminishment

or disestablishment as to any of the lands in question. Id. at 1092-93. Thus, the

court held that all the lands retained their reservation status and remained Indian

                                         - 12 -
country, subject to the jurisdiction of the Tribe and the federal government.

Thereafter, the Supreme Court denied certiorari. Ute Indian Tribe v. Utah, 479

U.S. 994 (1986).

III.   U TAH V . H AGEN : T HE 1994 S UPREME C OURT D ECISION

       In several related criminal cases arising in the late 1980s, the Utah Supreme

Court ruled, contrary to the Tenth Circuit, that the original boundaries of the

Uintah Valley Reservation had been diminished by the 1902-1905 allotment

legislation. See State v. Perank, 858 P.2d 927 (Utah 1992); State v. Coando, 858

P.2d 926 (Utah 1992); State v. Hagen, 858 P.2d 925 (Utah 1992). The cases arose

as a result of state felony prosecutions against three Indians for crimes committed

in Myton and Roosevelt, Utah, two towns within the original boundaries of the

Uintah Valley Reservation. The defendants challenged the prosecutions on the

basis that the state trial court lacked jurisdiction over their crimes because the

defendants committed their crimes in “Indian country” as defined by 18 U.S.C.

§ 1151(a). The defendants argued that under our en banc decision in Ute Indian

Tribe III, the towns remained within the Reservation and thus within Indian

country. The State of Utah, on the other hand, argued that our holding in Ute

Indian Tribe III was wrong, that the Reservation had been diminished, and that

the towns were outside the Reservation and thus outside Indian country. The

Utah Supreme Court agreed with the State, and held that because the Reservation


                                        - 13 -
had been diminished, the state trial court properly exercised criminal jurisdiction

over the defendants. Perank, 858 P.2d at 953; Coando, 858 P.2d at 927; Hagen,

858 P.2d 925-26.

      In 1993, the Supreme Court granted certiorari in Hagen to resolve the

conflict between the decisions of the Tenth Circuit and the Utah Supreme Court.

Hagen v. Utah, 507 U.S. 1028 (1993). In 1994, the Supreme Court affirmed the

Utah Supreme Court’s resolution of the boundary issue, expressly rejecting Ute

Indian Tribe III’s conclusion that the Uintah Valley Reservation had not been

diminished. Hagen v. Utah, 510 U.S. 399, 421-22 (1994).

      In Hagen, the Supreme Court performed a familiar analysis of the statutory

language, legislative history, and contemporary historical understanding of the

allotment legislation at issue. See id. at 410-21. The Court’s analysis, however,

was limited to the status of the unallotted Uintah Valley Reservation lands opened

to settlement under the 1902-1905 allotment legislation. See id. The Court did

not address the National Forest Lands or the Uncompahgre Reservation, neither of

which was before the Court for consideration. After looking to the three

diminishment factors, the Court concluded that Congress’s “baseline intent to

diminish the Reservation expressed in the 1902 Act survived the passage of the

1905 Act,” id. at 415, and that the “[c]ontemporary historical evidence supports

[the] conclusion that Congress intended to diminish the Uintah Reservation.” Id.


                                        - 14 -
at 416. The Court therefore upheld the State of Utah’s exercise of criminal

jurisdiction over acts occurring within the original boundaries of the Uintah

Valley Reservation. Id. at 421-22.

IV.   Ute Indian Tribe IV: The 1996 District Court Decision

      Immediately after the Utah Supreme Court issued its slip opinions in the

state criminal cases, the Tribe filed a motion in federal district court seeking a

permanent injunction preventing the state and local defendants from enforcing or

relying upon Perank, Coando, and Hagen in any way. On August 31, 1992, the

state and local defendants and the Tribe entered into a stipulation, under which

the state and local defendants agreed to refrain from enforcing the Utah Supreme

Court decision in Perank or exercising jurisdiction in any manner inconsistent

with the en banc decision in Ute Indian Tribe III, pending a decision on the merits

in the district court. The district court incorporated the stipulation into an order

dated September 2, 1992 (“Injunction Order”).

      In 1993, after the Supreme Court granted certiorari in Hagen, the district

court stayed further proceedings on the Tribe’s motion pending the outcome of

Hagen in the Supreme Court. On February 23, 1994, the Supreme Court issued its

decision in Hagen. On April 24, 1994, the state and local defendants filed a

motion to vacate and set aside the Injunction Order and to dismiss the Tribe’s

motion for permanent injunctive relief.


                                          - 15 -
       On May 2, 1994, the district court modified the Injunction Order “to allow

the [s]tate and [l]ocal [d]efendants to prosecute felony crimes occurring on lands

within the original boundaries of the Uintah Valley Reservation which are not

‘Indian country’ as defined by 18 U.S.C. § 1151, et seq.” The court emphasized

that it was “not determining one way or another which lands may or may not

constitute ‘Indian country.’” 1

       On April 2, 1996, the district court issued Ute Indian Tribe v. Utah, 935 F.

Supp. 1473 (D. Utah 1996) (“Ute Indian Tribe IV”). In a comprehensive and

detailed opinion, the district court fully addressed the binding effect, as between

the parties, of our earlier en banc decision in Ute Indian Tribe III, as well as the

extent of direct conflict between Ute Indian Tribe III and Hagen. Id. at 1484-

1516. Rather than finally deciding these issues, however, the district court held

that it was bound under “law of the case” rules to enforce the mandate in Ute

Indian Tribe III. Id. at 1516-25. Thus, the district court did not reach the merits

of the Tribe’s request for permanent injunctive relief. Id. In lieu of a final

resolution of the dispute, the district court requested that we issue instructions on

how to proceed and suggested that we construe the request as an invitation to


       1
         The district court modified its order to allow the State of Utah to prosecute
felonies on former reservation lands because in United States v. Duncan, 857 F. Supp.
852 (D. Utah 1994), the district court had dismissed a federal felony prosecution against
an Indian for acts occurring in Roosevelt, Utah. The court ruled that Hagen precluded
federal jurisdiction on such lands. Id. at 853.

                                           - 16 -
recall our mandate in Ute Indian Tribe III. The court also concluded that the

Injunction Order, as modified, should remain in effect to allow the state and local

defendants to prosecute criminal felonies occurring on former Uintah Valley

Reservation lands. Id. at 1531. This appeal followed.

                                   DISCUSSION

I.    I NTRODUCTION

      On appeal, the Tribe maintains that principles of finality require the district

court to enjoin permanently the state and local defendants from exercising

jurisdiction in a manner inconsistent with Ute Indian Tribe III. On the other

hand, the state and local defendants argue that we should give effect to the

contrary boundary determination in Hagen by recalling the mandate in Ute Indian

Tribe III in its entirety and reinstating the original Tenth Circuit panel opinion.

The United States as amicus curiae urges us to recall and modify the mandate in

Ute Indian Tribe III only to the extent that it directly conflicts with Hagen.

      In resolving this dispute, we follow a three-part framework. First, we

decide whether the district court was bound to follow the mandate in Ute Indian

Tribe III by continuing the Injunction Order. After concluding that the district

court properly followed our mandate, we nevertheless decide whether to modify

Ute Indian Tribe III in light of the inconsistent boundary determination in Hagen.

Finally, after concluding that Ute Indian Tribe III should be modified, we decide


                                        - 17 -
whether to recall our mandate in its entirety or modify our en banc opinion only to

the extent that it directly conflicts with Hagen. Because of the importance of

finality, we conclude that Ute Indian Tribe III should be modified only to the

extent that it conflicts with Hagen.

II.   T HE B INDING E FFECT OF U TE I NDIAN T RIBE III

      We begin by determining the binding effect of Ute Indian Tribe III on the

allocation of jurisdiction among the federal government, the Tribe, and the state

and local defendants. Whether the district court was bound by the mandate in Ute

Indian Tribe III to continue the Injunction Order, and whether this court is bound

by principles of finality to enforce our prior boundary determination, are separate

inquiries. We address each question in turn.

      A.     The Mandate Rule

      The state and local defendants first contend that the district court erred in

holding that it was bound by Ute Indian Tribe III to continue to enjoin their

exercise of civil and non-felony jurisdiction despite the Supreme Court’s decision

in Hagen. We review the district court’s decision to continue an injunction for an

abuse of discretion, examining “whether the district court committed an error of

law or relied on clearly erroneous fact findings.” Walmer v. United States Dep’t

of Defense, 52 F.3d 851, 854 (10th Cir.), cert. denied, 116 S. Ct. 474 (1995). We

review questions of law decided by the district court de novo. Harolds Stores,


                                        - 18 -
Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1555 (10th Cir.), cert. denied,

117 S. Ct. 297 (1996).

      The district court concluded that it was bound by the “law of the case”

doctrine to enforce the boundary determinations in Ute Indian Tribe III. Under

that doctrine, once a court decides an issue, the same issue may not be relitigated

in subsequent proceedings in the same case. Arizona v. California, 460 U.S. 605,

618-19 (1983); United States v. Monsisvais, 946 F.2d 114, 115-16 (10th Cir.

1991). An important corollary of the doctrine, known as the “mandate rule,”

provides that a district court “must comply strictly with the mandate rendered by

the reviewing court.” Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of

America, 962 F.2d 1528, 1534 (10th Cir. 1992); see also Mason v. Texaco, Inc.,

948 F.2d 1546, 1553 (10th Cir. 1991) (“Under the ‘law of the case’ doctrine, the

district court may not deviate from the appellate court’s mandate.”). In this case,

the district court concluded that the mandate in Ute Indian Tribe III remained in

effect and therefore ruled that it was bound to follow the mandate by continuing

to enjoin the defendants’ exercise of jurisdiction.

      The state and local defendants contend that the district court is not bound

by the mandate in Ute Indian Tribe III because of an intervening change in

controlling law, an exception to the mandate rule. See Pittsburg & Midway Coal

Mining Co. v. Watchman, 52 F.3d 1531, 1536 n.4 (10th Cir. 1995). The


                                        - 19 -
defendants maintain that because Hagen was “intervening” (i.e., coming after Ute

Indian Tribe III but before the Tribe’s present motion for injunctive relief), the

district court should have departed from the appellate mandate and followed the

boundary determination in Hagen. The defendants contend that the district court,

by failing to do so, wrongfully continued to enjoin their exercise of jurisdiction

pursuant to Hagen.

      The argument of the state and local defendants is without merit. In short,

the intervening-change-in-law exception does not apply where, as here, the case

in which the erroneous ruling occurred is no longer sub judice--that is, where the

case has become final. See Colorado Interstate Gas, 962 F.2d at 1534 (holding

that once an appellate court resolves an issue and remands the case to enter

judgment in accordance with the mandate, the district court may not disregard the

mandate and apply a later change in law on remand because the question is no

longer sub judice); Collins v. City of Wichita, 254 F.2d 837, 839 (10th Cir. 1958)

(holding that “[a] change in the law or in the judicial view of an established rule

of law is not such an extraordinary circumstance which justifies” setting aside a

final judgment).

      In Ute Indian Tribe III, our en banc opinion disposed of all boundary

questions at issue on the merits. Our ruling left nothing for the district court to

address beyond the “ministerial dictates of the mandate.” Colorado Interstate Gas


                                         - 20 -
Co., 962 F.2d at 1534. In other words, the case was no longer sub judice after

December 9, 1986. As of that date, the district court was without authority to

depart from an appellate mandate based on a later change in law. Because Ute

Indian Tribe III proceeded to a final decision, a later change in law could not

“reopen the door already closed.” James B. Beam Distilling Co. v. Georgia, 501

U.S. 529, 541 (1991). Accordingly, we hold that the district court properly

followed our mandate in Ute Indian Tribe III by continuing to enjoin the state and

local defendants from exercising jurisdiction pursuant to Hagen.

      B.     Modification of Ute Indian Tribe III

      Although the district court did not err in holding that it was bound by Ute

Indian Tribe III, we nevertheless must decide whether to modify our judgment in

Ute Indian Tribe III in light of the Supreme Court’s inconsistent boundary

determination in Hagen. The question whether to modify our earlier judgment

raises competing concerns involving the finality of a court’s judgment and the

need for uniformity in decisionmaking throughout the federal court system. In

deciding this question, we first discuss whether an appellate court has the power

to modify a mandate and the circumstances in which exercise of that power is

appropriate. With these circumstances in mind, we next determine whether we

are precluded by the principles of collateral estoppel or res judicata from

departing from the boundary determination of Ute Indian Tribe III. Finally, after


                                        - 21 -
concluding that we are not bound by the traditional principles of finality, we

directly confront the relative importance of finality and uniformity in the context

of this case.

                1.   The Power of an Appellate Court to Modify a Mandate

       The defendants’ motion to recall the mandate in Ute Indian Tribe III

requires us first to ask whether an appellate court possesses the authority to recall

or modify a mandate after the time for rehearing has passed. In this circuit, as in

all circuits that have addressed the issue, “an appellate court has power to set

aside at any time a mandate that was procured by fraud or act to prevent an

injustice, or to preserve the integrity of the judicial process.” Coleman v. Turpen,

827 F.2d 667, 671 (10th Cir. 1987); see also American Iron & Steel Inst. v. EPA,

560 F.2d 589, 593 n.15 (3d Cir. 1977) (listing cases); Greater Boston Television

Corp. v. FCC, 463 F.2d 268, 275-80 (D.C. Cir. 1971) (discussing particular

grounds for recalling a mandate). Although the rule is stated in broad terms, the

appellate courts have emphasized that the power to recall or modify a mandate is

limited and should be exercised only in extraordinary circumstances. See

American Iron & Steel Inst., 560 F.2d at 594 (emphasizing that recall of a

mandate is “an extraordinary remedy, one to be used sparingly”). 2 The limited


       2
        Indeed, we have found only one case in which we have departed from a prior
mandate after a final decision because of a later change in law. In Pierce v. Cook & Co.,
518 F.2d 720, 723 (10th Cir. 1975), we permitted relitigation of already settled claims

                                          - 22 -
nature of this power is a reflection of the importance of finality: once parties are

afforded a full and fair opportunity to litigate, the controversy must come to an

end and courts must be able to clear their dockets of decided cases. As the Third

Circuit explained, “[P]arties should be afforded ample opportunity to litigate their

claims, but once a final disposition is reached they should not expect that the

good offices of the court will be available for a chance to press their claims

anew.” Id. at 592. Mindful of the important limitations on an appellate court’s

power to disrupt a settled judgment, we next address whether we are precluded

from modifying the mandate in Ute Indian Tribe III under the principles of

collateral estoppel or res judicata .

              2.     Collateral Estoppel and Res Judicata

       In seeking permanent injunctive relief against the state and local

defendants, the Tribe contends that collateral estoppel and res judicata preclude

the state and local defendants from relying on Hagen. In particular, the Tribe

argues that the Court should enjoin the defendants’ enforcement of Hagen under

the relitigation exception to the Anti-Injunction Act, 28 U.S.C. § 2283, 3 which


where plaintiffs with claims under state law were forced to litigate in federal court
because of diversity and received “substantially different treatment than that [later]
received in state court by another injured in the same accident.” Id. at 723. Pierce was an
“extraordinary case” based on an “unusual combination of events” and is not applicable to
the case before us today. Id.
       3
          Section 2283 provides: “A court of the United States may not grant an injunction
to stay proceedings in a State Court except as expressly authorized by Act of Congress, or

                                          - 23 -
permits a federal court to enjoin proceedings in state court where the party

asserting a claim or issue in the state court is barred from doing so by res judicata

or collateral estoppel. See Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 150-

51 (1988) (“The relitigation exception was designed to permit a federal court to

prevent state litigation of an issue that previously was presented to and decided by

the federal court. It is founded in the well-recognized concepts of res judicata

and collateral estoppel.”). The Tribe argues that because Ute Indian Tribe III

produced a final judgment on the merits (thereby resolving the boundary issue in

favor of the Tribe), the doctrine of collateral estoppel binds this court and

precludes the defendants from enforcing the contrary holding in Hagen. The

Tribe maintains that the Supreme Court’s decision in Federated Department

Stores, Inc. v. Moitie, 452 U.S. 394 (1981), prohibits any departure from the

settled boundary determination of Ute Indian Tribe III, even where that decision

is erroneous in light of a later change in law.

       We disagree that Federated Department Stores controls the outcome of this

case. In Federated Department Stores, 452 U.S. at 398, the Supreme Court

rejected an attempt by the Ninth Circuit to craft an exception to the doctrine of

res judicata based on a later change in controlling law. The case involved seven

retail purchasers who brought separate actions against the owners of various



where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

                                            - 24 -
department stores, alleging that the stores had engaged in illegal price fixing. Id.

at 395-96. After the district court dismissed the actions on the grounds that the

plaintiffs had failed to state a claim for relief under the applicable statute, five of

the plaintiffs appealed the ruling and, ultimately, obtained a reversal by the

Supreme Court. Id. at 396. Instead of appealing the district court’s ruling as the

other five plaintiffs had done, two plaintiffs refiled their actions in state court,

which were removed to federal court. Id. The federal district court held that

because the two plaintiffs sought to relitigate the same claim against the same

defendants, the actions had to be dismissed under the doctrine of res judicata. Id.

at 396-97.

      The two plaintiffs appealed to the Ninth Circuit. Id. at 397. While their

appeal was pending, the Supreme Court announced that the other plaintiffs had

stated a claim for relief. Id. The Ninth Circuit concluded that the two plaintiffs

should be allowed to benefit from the Supreme Court’s decision because their

position was closely interwoven with the other five cases. Id. The court stated

that because all of the dismissals rested on precedent that the Supreme Court had

since overruled, the doctrine of res judicata must give way to the competing

concerns of “public policy” and “simple justice.” Id. at 398.

      In reversing, the Supreme Court expressly rejected the Ninth Circuit’s

“novel exception to the doctrine of res judicata.” Id. The Court explained:


                                          - 25 -
      [W]e do not see the grave injustice which would be done by the
      application of accepted principles of res judicata. . . . The doctrine of
      res judicata serves vital public interests beyond any individual
      judge’s ad hoc determination of the equities of a particular case.
      There is simply no principle of law or equity which sanctions the
      rejection by a federal court of the salutary principle of res judicata
      . . . . This Court has long recognized that [p]ublic policy dictates that
      there be an end of litigation; that those who have contested an issue
      shall be bound by the result of the contest, and that matters once tried
      shall be considered forever settled as between the parties.

Id. at 401 (citations and internal quotation marks omitted).

      Contrary to the Tribe’s argument, our case is distinguishable from

Federated Department Stores in two important respects. First, in contrast to

Federated Department Stores, where the issue was whether a change in law would

permit the incipient relitigation of an issue resolved in a prior suit, the State of

Utah in this case has already relitigated the boundary issue. We are not now

deciding whether a party--in this case the State--deserves a second bite at the

apple. The boundary relitigation is over. The Utah Supreme Court has issued a

final ruling, which the United States Supreme Court has affirmed, resulting in a

clearly inconsistent judgment. For this reason, the Tribe’s reliance on collateral

estoppel is misplaced.

      Second, in deciding whether to modify Ute Indian Tribe III, we are not

motivated by a desire to achieve a more accurate judgment or to avoid the

injustice that might result from a strict application of the principles of finality, as

was the case in Federated Department Stores. The fact that Ute Indian Tribe III

                                          - 26 -
may have been wrongly decided or operates unfairly against the state and local

defendants is not a concern that informs our analysis. See 18 C HARLES A.

W RIGHT ET AL ., F EDERAL P RACTICE AND P ROCEDURE § 4426, at 265 (1981) (“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.”). Rather, our decision is based on the need to

reconcile two inconsistent boundary determinations and to provide a uniform

allocation of jurisdiction among separate sovereigns. For this reason, Federated

Department Store’s relevance to this case is limited. The question here is not

whether the State of Utah should be able to relitigate the boundary issue (which it

has already done), but which decision--Ute Indian Tribe III or Hagen--should

control the allocation of jurisdiction among the state and local defendants, the

Tribe, and the federal government. The State’s successful relitigation of the

boundary issue has put the judgment in Ute Indian Tribe III on a collision course

with Hagen, and therefore, we must directly confront whether Ute Indian Tribe III

should give way to the equally final, contrary judgment in Hagen. To that

inquiry, we now turn.

             3.    Finality and Uniformity

      As discussed above, the question whether to modify our judgment in Ute

Indian Tribe III raises the competing concerns of finality and uniformity. Thus,


                                       - 27 -
in deciding this question, we must assess the relative importance of finality and

uniformity in the context of this case.

      Although we are not bound by collateral estoppel to enforce the boundary

determination of Ute Indian Tribe III, departure from this settled judgment

implicates the important purposes of finality. Over a century ago, the Supreme

Court discussed the importance of finality:

      This general rule is demanded by the very object for which civil
      courts have been established, which is to secure the peace and repose
      of society by the settlement of matters capable of judicial
      determination. Its enforcement is essential to the maintenance of
      social order; for the aid of judicial tribunals would not be invoked
      for the vindication of rights of person and property if, as between
      parties and their privies, conclusiveness did not attend the judgments
      of such tribunals in respect of all matters properly put in issue, and
      actually determined by them.

Southern Pac. Ry. Co. v. United States, 168 U.S. 1, 49 (1897); see also Kremer v.

Chem. Constr. Corp., 456 U.S. 461, 467 n.6 (1982). The Court also has addressed

the particular purposes of finality:

      To preclude parties from contesting matters that they have had a full
      and fair opportunity to litigate protects their adversaries from the
      expense and vexation attending multiple lawsuits, conserves judicial
      resources, and fosters reliance on judicial action by minimizing the
      possibility of inconsistent decisions.

Montana v. United States, 440 U.S. 147, 153-54 (1979). Accordingly, before

departing from a settled decision, we must consider whether such departure might

“substantially frustrate [collateral estoppel’s] purpose of protecting litigants from


                                          - 28 -
burdensome relitigation and of promoting judicial economy.” United States v.

Stauffer Chem. Co., 464 U.S. 165, 172 (1984).

      The Tribe contends that departure from Ute Indian Tribe III would frustrate

the important purposes of finality and would upset its reasonable expectations in

the continuing validity of a settled judgment. The litigation that led to Ute Indian

Tribe III lasted ten years and resulted in a costly victory for the Tribe. It also

consumed important judicial resources. Perhaps most important from the Tribe’s

point of view, the decision in Ute Indian Tribe III purported to define

conclusively the respective jurisdictional boundaries of the various governmental

authorities operating in and around the Uintah Valley Reservation. Indeed, the

Tribe continues to rely on Ute Indian Tribe III in exercising civil and non-felony

jurisdiction on lands within the original reservation boundaries. “When a court

has determined disestablishment of a given reservation in its particular historical

and factual setting, prevention of inconsistent adjudication becomes desirable

insofar as it fosters reliance on judicial decision making.” White Earth Band of

Chippewa Indians v. Alexander, 683 F.2d 1129, 1135 (8th Cir. 1982). The Tribe

argues that this reasoning, as well as the other important purposes of finality,

support enforcement of the settled judgment of Ute Indian Tribe III.

      The same important purposes of finality, however, apply equally to the final

judgment in Hagen. Once Hagen became final, the State of Utah was entitled to


                                         - 29 -
rely on the collateral estoppel effect of that judgment just as the Tribe was

entitled to rely on its judgment in Ute Indian Tribe III. Had the Tribe brought its

present request for injunctive relief prior to the conclusion of the state litigation

in Hagen, the principle of finality clearly would have favored the Tribe and might

even have required an injunction against the state proceedings. See Parsons Steel,

Inc. v. First Ala. Bank, 474 U.S. 518, 524 (1986) (holding that the relitigation

exception to the Anti-Injunction Act does not permit a federal court to enjoin a

state court proceeding “once the state court has finally rejected a claim of res

judicata”). In this situation, however, where the State has already relitigated the

boundary issue, the economy and judicial resource concerns that normally operate

to preclude a second lawsuit are of little relevance. Although the Tribe may have

a more forceful reliance interest given the length of time Ute Indian Tribe III has

remained in effect, enjoining the state and local defendants in this situation would

do little to further the core purposes of finality. As discussed above, the second

litigation has proceeded to a final judgment and has already resulted in an

inconsistent decision.

      Moreover, we note that “res judicata and collateral estoppel . . . promote

the comity between state and federal courts that has been recognized as a bulwark

of the federal system.” Allen v. McCurry, 449 U.S. 90, 95-96 (1980). Thus,

enjoining the State’s enforcement of Hagen in this situation would “violate basic


                                         - 30 -
tenets of comity and federalism.” Kremer, 456 U.S. at 478. By reaching the

merits in Hagen, the Utah Supreme Court effectively ruled that the State was not

precluded from relitigating the boundary issue. In the absence of a successful

challenge to this ruling in the Supreme Court, we must give full effect to the state

court judgment and may not impose “the highly intrusive remedy of a federal-

court injunction against the enforcement of the state court judgment.” Parsons

Steel, Inc., 474 U.S. at 525. 4

       In the situation before us, where the purposes of finality do not clearly

support enforcement of either judgment, we might on the sole basis of our

hierarchical system of courts prefer to give effect to the pronouncement of the

Supreme Court. In an analogous context, for example, the D.C. Circuit stated that

“[w]here, as here, a decision of the Supreme Court--the preeminent tribunal in our



       4
         In State v. Hagen, 802 P.2d 745, 747 (Utah Ct. App. 1990), the Utah Court of
Appeals expressly relied on the collateral estoppel effect of Ute Indian Tribe III in
holding that the state court lacked jurisdiction over the Indian defendants. Nevertheless,
the Utah Supreme Court reversed, citing its earlier conclusion in the companion case of
State v. Perank, 858 P.2d 927 (Utah 1992), but without further discussion of collateral
estoppel. Hagen, 858 P.2d at 925-26. When Hagen reached the Supreme Court, the
Court declined to address whether collateral estoppel barred relitigation of the boundary
issue. Hagen, 510 U.S. at 409-10. The Court relied on the procedural ground that
counsel for the petitioner had failed to raise collateral estoppel in seeking a writ of
certiorari. Id. The Court found “no reason to consider an argument that petitioner not
only failed to raise but on which he expressly refused to rely in seeking a writ of
certiorari.” Id. at 410. Accordingly, the Utah Supreme Court’s ruling that collateral
estoppel did not prevent relitigation of the boundary issue remains the settled judgment of
that court.

                                           - 31 -
judicial system--departs in some pivotal aspects from those of lower federal

courts, amendatory action may be in order to bring the pronouncements of the

latter courts into line with the views of the former.” American Iron & Steel Inst.,

560 F.2d at 596. We do not, however, take such “amendatory action” in this case

merely on the basis of the incongruency between our decision in Ute Indian Tribe

III and Hagen. Additional factors, including the importance of uniformity, also

support our view that Ute Indian Tribe III should be modified in light of Hagen.

      Uniformity is an important value in our system of judicial decisionmaking.

While “[c]onflicts in the circuits are generally accepted and in some ways even

welcomed,” Stauffer Chem. Co., 464 U.S. at 177 (White, J., concurring), uniform

decisionmaking within each circuit is essential. The related doctrines of

collateral estoppel and stare decisis are exactly the sort of tools that have been

designed to ensure uniformity and compliance with binding precedent. Like

collateral estoppel, stare decisis “promotes the evenhanded, predictable, and

consistent development of legal principles, fosters reliance on judicial decisions,

and contributes to the actual and perceived integrity of the judicial process.”

Payne v. Tennessee, 501 U.S. 808, 827 (1991). Unfortunately, these doctrines

have so far failed to prevent the inconsistency between Ute Indian Tribe III and

Hagen. Given the important values that underlie these doctrines, we cannot allow

such an inconsistency to persist.


                                         - 32 -
       More importantly, the lack of uniformity between Ute Indian Tribe III and

Hagen presents a practical dilemma of daily importance. Although the Tribe

continues to exercise civil and non-felony criminal jurisdiction on those portions

of the Uintah Valley Reservation that were opened to settlement under the 1902-

1905 allotment legislation, the State of Utah is solely responsible under Hagen for

bringing felony prosecutions on the same lands. Often the difference between

state and tribal jurisdiction is a matter of only a few dollars, the amount

separating a misdemeanor from a felony in the case of theft, for example. Similar

problems arise in determining whether an assault constitutes a misdemeanor

subject to tribal and federal jurisdiction or whether it constitutes a felony subject

to state jurisdiction. In this situation, the interest of uniformity clearly supports

modification of Ute Indian Tribe III and creation of a uniform allocation of

jurisdiction. As the Third Circuit stated, “‘[U]niformity’ in application of

principles and in decision-making might constitute a ‘special reason for disturbing

[the] repose and finality . . . ’ of an earlier adjudication.” American Iron & Steel

Inst., 560 F.2d at 597 (quoting Greater Boston Television Corp., 463 F.2d at 278-

79).

       Although a uniform allocation of jurisdiction would eliminate the existing

confusion, we are mindful that “[f]inality must . . . delimit equality in a temporal

sense, and we must accept as a fact that the argument for uniformity loses force


                                         - 33 -
over time.” James B. Beam Distilling Co., 501 U.S. at 542. As a limit on

uniformity, finality is of particular importance where a change in law threatens to

disrupt a final tort award or other settled judgment based on then-existing legal

principles. The need for finality, however, applies with less force to judgments

that are not “inherently final” but are rather of “a continuing nature.” American

Iron & Steel Inst., 560 F.2d at 599. Where a prior erroneous judgment necessarily

affects continuing conduct, the interests of uniformity may demand departure

from the prior judgment to bring a court’s view of the law into line with the

prevailing view. See Federal Labor Relations Auth. v. United States Dep’t of

Treasury, 884 F.2d 1446, 1456 (D.C. Cir. 1989) (concerning federal agencies’

duty to disclose federal employees’ names and addresses to labor unions);

American Iron and Steel, 560 F.2d at 597-99 (concerning application of water

pollution regulations); Moch v. East Baton Rouge Parish School, 548 F.2d 594

(5th Cir. 1977) (concerning apportionment of parish school board); Christian v.

Jemison, 303 F.2d 52, 54-55 (1962) (concerning prohibition of racial segregation

after abandonment of “separate but equal” doctrine); 18 W RIGHT ET AL ., § 4415,

at 131 (stating that “ordinary . . . preclusion rules are often strained by continuing

conduct”). The character of Ute Indian Tribe III reflects this type of judgment.

As the district court noted, the state and local defendants are not seeking “to

unravel the intricate tapestry of individual judgments already made final each


                                        - 34 -
time a new decision is announced.” Ute Indian Tribe IV, 935 F. Supp. at 1510.

Instead, the defendants are seeking to apply Hagen prospectively to the continuing

conduct of separate sovereigns and the individuals living in and around the Uintah

Valley Reservation. This case does not involve the retroactive application of

Hagen to events or lawsuits that have occurred in the past. To the extent that

Hagen threatens to displace a judgment “on which reliance may reasonably have

been placed,” James B. Beam Distilling Co., 501 U.S. at 538, today’s decision is

limited to prospective application only. See United States v. Cuch, 79 F.3d 987,

995 (10th Cir.) (rejecting the retroactive application of Hagen to vacate a federal

criminal conviction on collateral attack), cert. denied, 117 S. Ct. 384 (1996).

      The Tribe raises one final argument against modification of Ute Indian

Tribe III. The Tribe contends that even if Ute Indian Tribe III does not continue

to define the current boundaries of the Uintah Valley Reservation as between the

State of Utah and criminal defendants under Hagen, the decision still should apply

to legal relations between the state and local defendants and the Tribe. In effect,

the Tribe urges us to adopt a dual jurisdictional system. Under such a system, Ute

Indian Tribe III would control the allocation of authority among the named parties

to this lawsuit in their dealings with each other, while Hagen would apply to the

state and local defendants’ relationships with all other parties. The Tribe

contends that such a dual system is warranted because the state and local


                                        - 35 -
defendants, as full participants in Ute Indian Tribe III, are directly bound by our

en banc decision, while the Tribe, as a nonparty to the litigation in Hagen, is not

directly bound by the Supreme Court’s decision. Accordingly, the Tribe contends

that the state and local defendants may properly assert jurisdiction over non-

Indians within those portions of the original Uintah Valley Reservation that were

open to settlement under the 1902-1905 legislation (the Hagen-based

jurisdictional overlay). In their dealings with the Tribe and its members,

however, the state and local defendants must recognize the authority of the Tribe

and the federal government within those same portions of the Reservation (the

Ute Indian Tribe III-based overlay).

      We reject the Tribe’s contention that jurisdiction must be allocated among

the parties by two inconsistent boundary determinations. The task of allocating

jurisdiction necessarily involves line-drawing, and in an area where there is a

compelling need for uniformity, there must be a single bright line. A dual system

would only continue the confusion that has characterized the relationship between

the parties since the issuance of Hagen. Under the Tribe’s approach, for example,

jurisdiction would depend not on the geographic locale of the crime or event at

issue, but on the relationship between the State of Utah and the individual or

entity over whom the State seeks to exercise jurisdiction. Rather than creating a

stable allocation of jurisdiction where the parties’ respective jurisdictions can be


                                        - 36 -
determined by reference to lines on a map, the Tribe’s approach would introduce

enormous uncertainty into an already complicated system. Each time the state and

local defendants attempt to assert jurisdiction over a new party, whether to collect

a tax or enforce a regulation, they would risk having to establish jurisdiction over

that party through time-consuming and costly litigation. In addition, we question

the propriety of allocating jurisdiction based on the application of procedural

rules (i.e., collateral estoppel and stare decisis) that were themselves designed to

eliminate inconsistency and unpredictability. Further, the legal basis for the

Tribe’s dual jurisdictional scheme is undermined by our conclusion that the state

and local defendants are not directly bound by Ute Indian Tribe III, at least as that

decision conflicts with the contrary holding in Hagen.

      For the reasons articulated above, we conclude that modification of our

earlier judgment is appropriate, not merely because the two decisions are

incongruent, but because of the effect of the incongruency on the interests of

uniformity and the integrity of our system of judicial decisionmaking. We

therefore hold that the judgment in Ute Indian Tribe III should be modified in

light of the extraordinary circumstances presented in this case. To dispel any

doubts, we emphasize the rarity that should attend the use of this remedy.

“Because this Court ordinarily will view motions to recall a mandate with

disfavor, the opinion in this matter should not be read as an invitation to litigants


                                         - 37 -
to seek review of already adjudicated claims.” American Iron & Steel Inst., 560

F.2d at 599.

          We do not, however, recall Ute Indian Tribe III in its entirety. To the

extent that Ute Indian Tribe III decided matters not addressed in Hagen, finality

requires those decisions to remain undisturbed. Thus, we modify our earlier

judgment only to the extent that it directly conflicts with the holding in Hagen.

We next address the extent to which the two cases are in direct conflict.

III.      J URISDICTIONAL B OUNDARIES A FTER H AGEN

          In determining the parties’ respective jurisdictional boundaries after Hagen,

we begin by identifying the areas where Ute Indian Tribe III and Hagen are not in

conflict and can be reconciled. To the extent that the boundary determinations

made in Ute Indian Tribe III do not directly conflict with Hagen, they remain in

effect.

          In Ute Indian Tribe IV, the 1996 district court opinion, the court fully

addressed the areas of genuine conflict between Ute Indian Tribe III and Hagen.

In large part, we need look no further than the district court’s detailed opinion to

determine those portions of the original Uintah Valley Reservation that remain the

exclusive province of the Tribe and the federal government. See Ute Indian Tribe

IV, 935 F. Supp. at 1485-1505. In sum, we agree with the district court that

Hagen did not effectively overrule the entire judgment in Ute Indian Tribe III,


                                           - 38 -
including our holdings concerning the National Forest Lands and the

Uncompahgre Reservation. Further, we agree that Hagen’s only effect was to

reduce (and not terminate) the boundaries of the Uintah Valley Reservation to the

extent that lands within the Reservation were unallotted, opened for settlement

under the 1902-1905 legislation, and not thereafter returned to tribal ownership.

Accordingly, we hold that our prior judgment in Ute Indian Tribe III should be,

and is now, modified to the extent that lands within the original reservation

boundaries were unallotted, opened to non-Indian settlement under the 1902-1905

legislation, and not thereafter returned to tribal ownership. 5

       A.     The Uintah Valley Reservation, The Uncompahgre Reservation,
              and the National Forest Lands

       In Ute Indian Tribe III, we decided three reservation diminishment issues.

First, we concluded that the 1902-1905 allotment legislation did not have the

effect of diminishing or disestablishing the Uintah Valley Reservation. Ute

Indian Tribe III, 773 F.2d at 1989. Second, we concluded that the withdrawal of

the National Forest Lands did not diminish the Uintah Valley Reservation. Id. at

1090. Finally, we held that the 1894 and 1897 allotment legislation did not

diminish or disestablish the Uncompahgre Reservation. Id. at 1093.



       5
        Because we depart from a mandate of the en banc court and modify the earlier
judgment in this case, we have circulated this opinion to the en banc court pursuant to our
rules. Each member of the en banc court has concurred in our holding.

                                           - 39 -
      Hagen dealt only with the first of these three issues. As the district court

stated:

      Hagen determined “that the Uintah Indian Reservation has been
      diminished by Congress,” i.e., that the original boundary of the
      Uintah Valley Reservation does not currently define the present
      territorial extent of federal, state and tribal jurisdiction in the Uintah
      Basin.

Ute Indian Tribe IV, 935 F. Supp. at 1484 (citing Hagen, 510 U.S. at 419-21).

The district court continued:

      Hagen [did not] address the Tenth Circuit’s determination in [Ute
      Indian Tribe III] that the 1905 national forest withdrawals of
      approximately 1,010,000 acres of reservation land did not diminish
      the Uintah Reservation boundaries. Hagen also makes no ruling
      concerning the boundaries of the Uncompahgre Reservation, the
      original extent of which was reaffirmed by the Tenth Circuit.

Id. at 1485.

      Although the state and local defendants admit that Hagen did not address

the status of the Uncompahgre Reservation or the National Forest Lands, they

assert that we should nevertheless recall our entire mandate in Ute Indian Tribe

III. The defendants argue that Hagen effectively overruled the fundamental

premise upon which the entire holding of Ute Indian Tribe III was based--namely,

that statutory restoration language is insufficient to infer diminishment. They

point out that in Hagen the Supreme Court stated that “restoration of unallotted

reservation lands to the public domain evidences a congressional intent with

respect to those lands inconsistent with the continuation of reservation status.”

                                         - 40 -
510 U.S. at 414. The state and local defendants argue that in light of this

statement, Ute Indian Tribe III’s holding concerning the National Forest Lands

and the Uncompahgre Reservation cannot stand because the entire holding was

based on a misreading of the same congressional restoration language that was at

issue in Hagen.

      Assuming that Ute Indian Tribe III’s holding with respect to the National

Forest Lands and the Uncompahgre Reservation was based on a misreading of the

applicable legislation, such a misreading alone is not sufficient to justify

departing from our earlier judgment. As we stated earlier, our decision to modify

Ute Indian Tribe III does not result from the desire to correct a prior erroneous

judgment, but rather from the need to reconcile our decision with a directly

conflicting decision of the Supreme Court. Because Hagen did not directly

address our holding in Ute Indian Tribe III as it relates to the National Forest

Lands and the Uncompahgre Reservation, we have no reason to depart from that

part of our prior judgment. We thus reject the defendants’ contention that the

judgment in Ute Indian Tribe III should be recalled in its entirety.

      B.     Non-Trust Lands Within the Original Boundaries of the Uintah
             Valley Reservation

      Because we have concluded that Hagen did not address the status of the

National Forest Lands or the Uncompahgre Reservation, we must now address the

extent to which Hagen directly conflicts with Ute Indian Tribe III. In particular,

                                         - 41 -
we must decide which lands within the Uintah Valley Reservation are no longer

Indian country after Hagen. The remaining controversy centers on whether the

state and local defendants or the Tribe and the federal government have

jurisdiction over the various categories of non-trust (i.e., fee), lands within the

original boundaries of the Uintah Valley Reservation, whether held by Indians or

non-Indians.

       Under 18 U.S.C. § 1151, the Tribe and the federal government have civil

and criminal jurisdiction over “Indian country.” Pittsburg & Midway Coal

Mining Co. v. Watchman, 52 F.3d 1531, 1540-41 (10th Cir. 1995). Indian

country includes “all Indian allotments, the Indian titles to which have not been

extinguished.” 18 U.S.C. § 1151(c). This category constitutes lands held in trust

by the federal government. Indian country also encompasses “all land within the

limits of any Indian reservation under the jurisdiction of the United States

Government, notwithstanding the issuance of any patent, and including

rights-of-way running through the reservation.” 18 U.S.C. § 1151(a). Thus,

Indian Country also includes all non-trust, or fee, lands so long as such lands are

located within the “limits of any Indian reservation.”

      There are four categories of non-trust lands at issue in this case:

      (a) lands that passed from trust to fee status pursuant to non-Indian
      settlement under the 1902-1905 allotment legislation;



                                         - 42 -
      (b) lands apportioned to the “Mixed Blood” Utes under the Ute
      Partition Act, Act of Aug. 27, 1954, Pub. L. No. 97-698, ch. 1009, 68
      Stat. 868 (codified at 25 U.S.C. §§ 677-677aa);
      (c) lands allotted to individual Indians that have passed into fee
      status after 1905; and
      (d) lands that were held in trust after the Reservation was opened in
      1905 but that since have been exchanged into fee status by the Tribe
      for then-fee (now trust) lands in an effort to consolidate its land
      holdings pursuant to the Indian Reorganization Act, Act of June 18,
      1934, ch. 576, 48 Stat. 984 (codified at 25 U.S.C. §§ 461-79) and the
      Indian Land Consolidation Act of 1983, Pub. L. No. 97-459, 96 Stat.
      2517 (codified at 25 U.S.C. §§ 2201-11).

See Ute Indian Tribe IV, 935 F. Supp. at 1484, 1486. In Ute Indian Tribe III, we

held that the 1902-1905 allotment legislation did not have the effect of

diminishing or disestablishing the Uintah Valley Reservation. We thus concluded

that all of the non-trust lands identified above remained “Indian country” under

§ 1151(a) as lands within “the limits of any Indian reservation.” In this case, we

must determine the extent to which Hagen directly conflicts with our earlier

conclusion that all of the above categories of non-trust lands remain within Indian

country.

      The parties do not dispute that Hagen directly conflicts with the first

category of non-trust lands, those lands passing in fee to non-Indians pursuant to

the 1902-1905 allotment legislation. This was precisely the category of fee lands

at issue in Hagen. Accordingly, we modify our mandate in Ute Indian Tribe III

and hold in accordance with Hagen that these lands are no longer within Indian



                                        - 43 -
country under section 1151(a) subject to the jurisdiction of the Tribe and the

federal government.

      With respect to the other three categories of non-trust lands, the state and

local defendants argue that these lands also are no longer within Indian country

after Hagen. They contend that the Supreme Court in Hagen “clearly

contemplated that the exterior boundaries of the Reservation would simply be

gone.” Appt. Brief, at 44. In other words, the defendants argue that the Court

held that the 1902-1905 legislation completely terminated the Reservation such

that no discrete, definable reservation boundaries now exist. Under the

defendants’ theory, there are no external boundaries and thus no “limits of any

reservation.” Indian country therefore is confined under § 1151(c) to “Indian

allotments . . . which have not been extinguished,” or trust lands. Under the

theory that Indian country is limited to trust lands, the defendants argue that the

three disputed categories of non-trust lands no longer constitute Indian country.

      We reject the defendants’ argument that Hagen removed all non-trust lands

within the original Uintah Valley Reservation from Indian country. In Hagen, the

Supreme Court did not decide that the 1902-1905 allotment legislation completely

disestablished the Uintah Valley Reservation, erasing its outer boundaries and

rendering § 1151(a) inapplicable to the three disputed categories of non-trust

lands. The Court in Hagen stated:


                                         - 44 -
      [W]e hold that the restoration of unallotted reservation lands to the
      public domain evidences a congressional intent with respect to those
      lands inconsistent with the continuation of reservation status. Thus,
      the existence of such language in the operative section of a surplus
      land Act indicates that the Act diminished the reservation.

Hagen, 510 U.S. at 414 (emphasis added). The Court stated that the Uintah

Valley Reservation had been “diminished” -- not “disestablished,” “eliminated,”

or “terminated.” Moreover, the diminishment was only “with respect to those

lands” that had been restored to the public domain under the 1902-1905

legislation. See Ute Indian Tribe IV, 935 F. Supp. at 1487-88. We therefore

conclude that Hagen did not erase the boundaries of the Uintah Valley

Reservation and that the current “limits of [the] reservation” thus embrace the

three categories of non-trust lands at issue. In sum, Hagen does not conflict with

our holding in Ute Indian Tribe III that these categories of non-trust lands remain

within Indian country under section 1151(a).

      We note that this conclusion has the benefit of producing a stable,

unchanging allocation of jurisdiction. Under our approach, the Tribe and the

federal government retain jurisdiction over all trust lands, the National Forest

Lands, the Uncompahgre Reservation, and the three categories of non-trust lands

that remain within the boundaries of the Uintah Valley Reservation. The state

and local defendants have jurisdiction over the fee lands removed from the

Reservation under the 1902-1905 allotment legislation. Although a title search


                                        - 45 -
may be necessary to determine which lands were opened under the 1902-1905

legislation, the parties’ respective jurisdictions will never change once the status

of those lands is conclusively determined. By contrast, under the defendants’

theory (i.e., that Indian country is limited to trust lands) the Indian country status

of land would change as trust lands are transferred into fee lands. We recognize

that while our approach might result in a checkerboard allocation of jurisdiction,

such a result is more desirable than the defendants’ approach, which would

produce a “moving checkerboard” because lands leaving trust status would also

lose their status as Indian country.

       In conclusion, we reject the argument that Indian country is confined to

lands held in trust by the federal government under § 1151(c). Rather, Indian

country extends to all trust lands, the National Forest Lands, the Uncompahgre

Reservation, and the three disputed categories of non-trust lands discussed

above. 6

                                   CONCLUSION

       For the foregoing reasons, we DENY the defendants’ motion to recall our

mandate in Ute Indian Tribe III, 773 F.2d 1087 (10th Cir. 1985) (en banc), cert.



       6
         We decline to address whether any portion of the non-trust lands opened in 1905
might still constitute Indian country under section 1151(b) as a “dependent Indian
community” because that question is not properly before the court. The district court may
be asked to consider the question upon remand.

                                          - 46 -
denied, 479 U.S. 994 (1986). Rather, we MODIFY our mandate in Ute Indian

Tribe III as set out above and REMAND with instruction that the district court

consider the Tribe’s request for permanent injunctive relief in light of this

opinion.




                                        - 47 -
