                                                                 FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit

                                         PUBLISH          August 9, 2016
                                                        Elisabeth A. Shumaker
                     UNITED STATES COURT OF APPEALS         Clerk of Court

                                   TENTH CIRCUIT


UTE INDIAN TRIBE OF THE
UINTAH AND OURAY
RESERVATION,

       Plaintiff - Appellant,
v.                                                 No. 15-4080

MYTON, a municipal corporation,

       Defendant - Appellee,

and

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; WASATCH
COUNTY; GARY HERBERT, in his
capacity as Governor of Utah; SEAN
D. REYES, in his capacity as Attorney
General of Utah,

       Defendants.

--------------------------------------------

UNITED STATES OF AMERICA;
THE STATE OF UTAH,

       Amici Curiae.
                 Appeal from the United States District Court
                           for the District of Utah
           (D.C. Nos. 2:75-CV-00408-BSJ and 2:13-CV-00276-BSJ)


Frances C. Bassett and Jeffrey S. Rasmussen (Thomas W. Fredericks and Jeremy
J. Patterson, with them on the briefs), Fredericks Peebles & Morgan LLP,
Louisville, Colorado, for Plaintiff-Appellant.

J. Craig Smith (Clark R. Nielsen, Stephen L. Henriod, and Brett M. Coombs, with
him on the brief), Smith Hartvigsen, PLLC, Salt Lake City, Utah, for Defendant-
Appellee.

Gina L. Allery, Attorney, Environmental and Natural Resources Division of the
United States Department of Justice, Washington, D.C. (John C. Cruden,
Assistant Attorney General, and Jennifer S. Neumann, Attorney, Environmental
and Natural Resources Division of the United States Department of Justice,
Washington, D.C., Barbara Coen, United States Department of the Interior,
Washington, D.C., and Grant Vaughn, United States Department of the Interior,
Salt Lake City, Utah, with her on the brief), for amicus curiae United States, in
support of Plaintiff-Appellant.

Sean D. Reyes, Attorney General, Randy S. Hunter and Katharine H. Kinsman,
Assistant Attorneys General, Tyler R. Green, Solicitor General, and Stanford E.
Purser, Deputy Solicitor General, State of Utah, Salt Lake City, Utah, for amicus
curiae State of Utah, in support of Defendant-Appellee.


Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges.


GORSUCH, Circuit Judge.


      We’re beginning to think we have an inkling of Sisyphus’s fate. Courts of

law exist to resolve disputes so that both sides might move on with their lives.

Yet here we are, forty years in, issuing our seventh opinion in the Ute line and

still addressing the same arguments we have addressed so many times before.

                                        -2-
Thirty years ago, this court decided all boundary disputes between the Ute Indian

Tribe, the State of Utah, and its subdivisions. The only thing that remained was

for the district court to memorialize that mandate in a permanent injunction.

Twenty years ago, we modified our mandate in one respect, but stressed that in all

others our decision of a decade earlier remained in place. Once more, we

expected this boundary dispute to march expeditiously to its end. Yet just last

year the State of Utah and several of its counties sought to relitigate those same

boundaries. And now one of its cities tries to do the same thing today. Over the

last forty years the questions haven’t changed — and neither have our answers.

We just keep rolling the rock.

                                          *

      To understand how this very old fight arrives back before us today, a brief

dip into Western history helps. Beginning in the 1860s and under pressure to

make way for incoming settlers, the federal government forced members of the

Ute Indian Tribe in Utah onto a new reservation. Like most reservations

established around that time, the land the Utes received represented but a portion

of their historic lands and pretty undesirable land at that. See Floyd A. O’Neil,

The Reluctant Suzerainty: The Uintah and Ouray Reservation, 39 Utah Hist. Q.

129, 130-31 (1971). But, as these things often went, as the decades wore on and

settlement pressures continued to increase the Tribe’s land began to look a good

deal more alluring. See id. at 137-38. By 1905, Congress authorized the

                                        -3-
Secretary of the Interior to break up the Ute reservation by assigning individual

plots to individual tribal members and allotting any land left over (and a very

great deal was sure to be left over) to interested homesteaders. In exactly this

way, massive swaths of former Ute reservation lands passed back into the public

domain. See generally Ute Indian Tribe v. Utah (Ute I), 521 F. Supp. 1072, 1092-

1127 (D. Utah 1981).

      That is, until 1945. Instead of disassembling reservations, Congress by

now wished to reassemble them. While by this point the former Ute reservation

had been opened to nontribal settlement for forty years, large portions still

remained unclaimed and sitting in the hands of the Secretary of the Interior. With

Congress’s permission, the Secretary in 1945 issued an order returning these

unallotted lands, about some 217,000 acres, to tribal jurisdiction. See Indian

Reorganization Act of 1934, ch. 576, 48 Stat. 984; Order of Restoration, 10 Fed.

Reg. 12,409 (Oct. 2, 1945); Ute Indian Tribe v. Utah (Ute II), 716 F.2d 1298,

1312-13 (10th Cir. 1983).

      The litigation surrounding these events and their upshot began in earnest in

1975. That year the Ute Tribe filed a lawsuit in federal court, alleging that the

State of Utah and several local governments were busy prosecuting tribal

members for crimes committed on tribal lands, even though (constitutionally

supreme) federal law generally assigns criminal enforcement responsibilities in

“Indian country” to federal and tribal officials, not state or local ones. See 18

                                         -4-
U.S.C. §§ 1151-1152, 1162; Cheyenne-Arapaho Tribes of Okla. v. Oklahoma, 618

F.2d 665, 668 (10th Cir. 1980). For their part, the State and its subdivisions

responded that the lands in question didn’t qualify as Indian country because the

1905 legislation that opened reservation lands to outside settlement had the effect

of diminishing or disestablishing the Utes’ reservation. See Ute I, 521 F. Supp. at

1075-79.

      It took a decade and an exhaustive adversarial process, but in 1985 this

court finally resolved the issue en banc in a case the parties call Ute III. This

court sided with the Tribe and, in a nutshell, held that all lands encompassed

within the original Ute reservation boundaries established beginning in the 1860s

— including all those lands that passed to non-Indian settlers between 1905 and

1945 — remained Indian country subject to federal and tribal (not state and local)

criminal jurisdiction. See Ute Indian Tribe v. Utah (Ute III), 773 F.2d 1087,

1088-89, 1093 (10th Cir. 1985) (en banc), cert. denied, 479 U.S. 994 (1986).

After the Supreme Court denied certiorari, that might have seemed the end of it.

After all, Ute III “disposed of all boundary questions at issue on the merits” and

“left nothing for the district court to address [on remand] beyond the ministerial

dictates of the mandate.” Ute Indian Tribe v. Utah (Ute V), 114 F.3d 1513, 1521

(10th Cir. 1997) (internal quotation marks omitted).

      But that was not the end of it. That was not even the beginning of the end

of it. Dissatisfied with the result of Ute III, state and local officials went

                                         -5-
shopping for a “friendlier forum” in which to “relitigate the boundary dispute.”

United States’ Mem. in Support of Ute Indian Tribe’s Mot. for Injunctive Relief

3, Supp. App. 8 (Nov. 23, 1992). And no doubt correctly sensing it would

represent their best chance for victory, they chose “[a]s a vehicle for their effort”

state court prosecutions of tribal members whose unlawful conduct occurred on

former reservation lands that had passed to nontribal settlers between 1905 and

1945. Ute Indian Tribe v. Utah (Ute VI), 790 F.3d 1000, 1003 (10th Cir. 2015);

see also State v. Perank, 858 P.2d 927, 934 (Utah 1992). Never mind that Ute III

held that these very lands qualified as Indian country, where Utah and its

subdivisions lacked criminal law enforcement authority over tribal members. 773

F.2d at 1088-89, 1093. Never mind, too, the normal operation of issue or claim

preclusion principles. State officials argued to Utah state courts that their

prosecutions could proceed because the 1905 legislation carved out from Indian

country at least those lands that had passed to nontribal members between that

year and 1945. See Perank, 858 P.2d at 934. Ultimately, the Utah Supreme Court

agreed with this much. See id. at 953; State v. Hagen, 858 P.2d 925, 925-26

(Utah 1992). And so did the U.S. Supreme Court in Hagen v. Utah, 510 U.S. 399

(1994). See id. at 421-22.

      That twist of events required this court to reconsider Ute III’s mandate in

light of Hagen. On the one hand, “[u]psetting a final decision by recalling and

modifying a mandate is and ought to be a rare and disfavored thing in a legal

                                         -6-
system that values finality.” Ute VI, 790 F.3d at 1004. On the other hand, if left

untouched, Ute III’s mandate invited a pretty unsavory result: the possibility that

the Supreme Court’s decision in Hagen would be left to “control only cases

arising from Utah state courts and not federal district courts.” Id. To avoid that

outcome, this court took the extraordinary step of recalling and modifying Ute

III’s mandate a decade after its issuance “to reconcile [the] two inconsistent

boundary determinations and to provide a uniform allocation of jurisdiction

among [the] separate sovereigns.” Ute V, 114 F.3d at 1523.

      This was no easy task. After carefully reviewing the possibilities, Judge

Tacha, writing for the court in a decision the parties call Ute V, held that a full

and proper respect for Hagen meant that this court now had to recognize that

“lands that passed from [tribal] trust to fee status pursuant to non-Indian

settlement” between 1905 and 1945 do not qualify as Indian country. Id. at 1529;

see also id. at 1530. At the same time, Judge Tacha declined to read Hagen as

affecting Ute III’s mandate in any other respect. So, for example, she explained

that lands that could’ve been but were not allotted to nontribal members between

1905 and 1945, and that were instead restored to tribal status in 1945, remained

Indian country. Id. at 1528-31; see also Ute VI, 790 F.3d at 1004. With that

much decided, Ute V (once again) resolved all outstanding boundary issues,

leaving to the district court nothing but the ministerial task of entering a

permanent injunction memorializing its terms. See Ute V, 114 F.3d at 1530-31.

                                          -7-
Once more, too, the Supreme Court denied certiorari. 522 U.S. 1107 (1998). And

with that, you could be forgiven for thinking that surely, now, the saga was about

to draw to a close as the century neared its end.

      Not even close. After this court issued Ute V and its light, the parties

entered into a series of agreements under the district court’s superintendence that

seemed to keep the peace — even for some years after major portions of them

expired in 2008. But then, much as they did in the build-up to Hagen, Utah and

several of its counties began what appeared to the Tribe to be a campaign to

undermine this court’s boundary determinations by prosecuting tribal members

for crimes committed “on the very lands Ute V said remain Indian country even

after Hagen.” Ute VI, 790 F.3d at 1004. Unsurprisingly, the Tribe responded to

this effort by filing suit once more in 2013 and by requesting a permanent

injunction to enforce the terms of Ute III and V. As a first step toward that end,

the Tribe sought a preliminary injunction halting the prosecution of one tribal

member for alleged traffic offenses on land that “Ute III and V recognized as

Indian country.” Id. at 1005. Yet in a one-line order that contained no

explanation, the district court denied the request.

      So it is that just last year the rock returned for this court to push up the hill

one more time. In Ute VI, we found that the land at issue in the prosecution in

question unquestionably qualified as Indian country under the terms of Ute V and

that Utah and the localities were indeed attempting to “undo the tribal boundaries

                                         -8-
settled by Ute III and V.” Id. Accordingly, this court ordered the district court to

issue the preliminary injunction forthwith. Id. (“[T]he district court should have

issued a preliminary injunction and must do so now . . . .” (emphasis added)).

“[T]he time has come,” we said, for the parties “to respect the peace and repose

promised by settled decisions.” Id. at 1013. Again the Supreme Court denied

review. 136 S. Ct. 1451 (2016).

      Yet even that wasn’t the end of it. While Ute VI was before this court, one

of the defendants, the town of Myton, filed a motion to dismiss the Tribe’s suit.

Even though the Tribe’s complaint alleged that Myton lies on original Ute

reservation lands and includes tracts that were opened in 1905 but never settled

and so restored to tribal jurisdiction in 1945. And even though the Tribe’s

complaint alleged that the town and its agents sought to prosecute tribal members

for crimes on those restored tribal lands. Despite all this, Myton sought dismissal

and the district court granted it, certifying its disposition for appeal under Fed. R.

Civ. P. 54(b). And so with that we face the rock and the hill yet again, with the

Tribe and the federal government asking us to give effect to Ute V’s mandate by

overturning the district court’s ruling.

                                            *

      We are of course obliged to do exactly that. The Tribe’s suit against Myton

alleges that local officials seek to exercise criminal jurisdiction over tribal

members on lands that were restored to tribal jurisdiction in 1945. Lands that,

                                           -9-
accordingly, remain Indian country under the express terms of Ute V and so

qualify as lands where tribal members are generally subject only to federal and

tribal criminal authorities.

      To be sure, Myton disputes the facts alleged in the complaint. It contends

that not a single bit of land within its boundaries was subject to the 1945

restoration order. But if Myton really wishes to dispute the facts alleged in a

complaint, a motion to dismiss surely isn’t the proper way to go about it. At the

motion to dismiss stage we and the district court must construe all well-pleaded

factual allegations in the light most favorable to the non-movant and ask only if

they state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). And the Tribe’s factual allegation that Myton includes land that qualifies

as Indian country under the terms of Ute V is a good deal more than plausible.

Indeed, it is undisputed that Myton lies on land that was part of the Tribe’s

original reservation. See Aple. Br. at 4 (“Myton City . . . is encompassed by the

historic boundaries of the Uintah Valley Indian Reservation . . . .”). The town’s

own plan and plat acknowledge that even today “approximately 48%” of the

town’s geographic space remains tribal “trust lands.” Myton City General Plan

FY 2006, at 12; see also id. at fig.2. And when in 1947 the town sought to

purchase certain parcels of land within the townsite’s boundaries so that it might

build an airport, the U.S. Department of the Interior refused the sale, citing its

judgment that the tracts in question had been “irrevocab[ly]” restored to tribal

                                         - 10 -
jurisdiction in 1945. App. vol. XIV at 2087-88. So it seems Myton’s response to

this appeal is really no response at all.

      Of course, that’s not Myton’s only reply. The town also argues that the

Supreme Court’s decision in Hagen requires the dismissal of this suit. In

particular, it points to a sentence in which the Court stated that “the town of

Myton, where petitioner committed a crime, is not in Indian country.” 510 U.S.

at 421. But though perhaps appealing on first encounter, on closer inspection this

argument proves no more persuasive than the last.

      After all and as we’ve seen, any dispute over the meaning and effect of

Hagen was itself finally decided by this court a very long time ago. As Ute V

recognized, Hagen addressed the question whether state officials had the power

under federal law to prosecute a particular crime by a particular defendant — a

question whose answer turned on whether the particular parcel of land where the

crime occurred (Mr. Hagen’s home in Myton) was or was not Indian country. See

Ute V, 114 F.3d at 1518-19; see also 18 U.S.C. § 1151; United States v. Arrieta,

436 F.3d 1246, 1247 (10th Cir. 2006); United States v. Martine, 442 F.2d 1022,

1023 (10th Cir. 1971). The Supreme Court held that particular parcel was not

Indian country, so state officials could lawfully prosecute Mr. Hagen. See Hagen,

510 U.S. at 421-22. Of course, Hagen’s reasoning or ratio decidendi extended

further, for the Court made plain that its holding rested on the judgment that all

parcels of land transferred to nontribal members between 1905 and 1945 are not

                                            - 11 -
Indian country — and that Mr. Hagen’s home sat on such a parcel. See id. at 414.

And in Ute V, this court sought to give full effect not just to Hagen’s holding but

to its reasoning too, revising Ute III’s mandate to reflect that all former

reservation lands transferred to nontribal members between 1905 and 1945 no

longer qualified as Indian country. See Ute V, 114 F.3d at 1528, 1530. But, as

interpreted by Ute V, Hagen didn’t hold that each and every tract of land inside

Myton is outside Indian country and didn’t purport to supply reasoning that might

support such a rule. See id. at 1530. Myton might disagree with Ute V’s

assessment on this score and believe “that Ute V drew the wrong boundaries.”

Ute VI, 790 F.3d at 1012. But Judge Tacha’s careful interpretation of Hagen in

Ute V dates back nearly twenty years, the Supreme Court has twice declined to

disturb its judgment, and we are not free to tinker with that controlling precedent

now. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993); Tokoph v. United States,

774 F.3d 1300, 1303-04 (10th Cir. 2014). Neither, for that matter, does Myton

dispute that it is in privity with the parties to Ute V or identify any other reason

that might prevent that decision from binding it not just as a matter of precedent

but as a matter of issue preclusion too.

      Though it’s long since water over the dam, both as a matter of precedent

and preclusion, we might add our view that Ute V’s interpretation of Hagen’s rule

and reasoning was entirely correct. Every bit of evidence suggests that the

Supreme Court meant to remove from Ute III’s determination about the scope of


                                           - 12 -
Indian country those lands (and only those lands) allotted to nontribal members

between 1905 and 1945. Indeed, the Utah Supreme Court decisions under review

in Hagen didn’t purport to hold differently. As Hagen’s companion case, Perank,

made clear, the “only issue” the Utah Supreme Court sought to resolve was

“whether the unallotted and unreserved lands that were opened to entry in 1905

and not later restored to tribal ownership and jurisdiction [in] 1945” qualified as

Indian country. 858 P.2d at 934 (emphasis added). Neither did the State of Utah

seek a different rule before the U.S. Supreme Court. In its briefing, Utah

expressly acknowledged that “[t]here is no dispute that . . . the surplus lands

restored to tribal ownership and reservation status in 1945 . . . are also Indian

country.” Br. for the Resp’t, Hagen, 510 U.S. 399 (No. 92-6281), 1993 WL

384805, at *9. An acknowledgment the State repeats even today in the amicus

brief it tenders otherwise in support of Myton. Br. of Utah as Amicus Curiae at 3

(“After explaining the effect of the 1945 and 1948 restorations, the State [in

Hagen] reiterated there was no dispute that the tribal reserves, remaining

allotments and restored lands were all Indian country.”). In this light, it is

evident that the Supreme Court’s mention of the town of Myton in Hagen was no

more than a shorthanded reference to the situs of the crime, a parcel of land inside

the town of Myton that had been allotted to a nontribal member between 1905 and

1945, and thus a parcel of land that failed to qualify as Indian country under the

Court’s reasoning. No one before the Court sought a ruling that all of Myton is


                                         - 13 -
outside Indian country. That question simply wasn’t presented. And nothing in

the parties’ arguments to the Court or the reasoning of the Court’s opinion would

support such an idiosyncratic rule. So it is Ute V’s interpretation of Hagen is not

only plainly controlling: it seems to us plainly correct.

      As a final measure, Myton appeals to equity. It laments the consequences

for the town’s administration that follow from having to contend with some

parcels in town where it cannot exercise criminal jurisdiction over some persons.

But this sort of “checkerboard” jurisdiction — where state and local officials bear

criminal enforcement power on some lands and federal and tribal officials oversee

others — is the natural consequence of Congress’s decision to open and then

close reservation lands to outside settlement. Neither would a victory for Myton

eliminate the checkerboard that already exists in former Ute reservation lands: it

would only alter the shape of the board in one relatively small and peculiar way, a

way that would defy the shape dictated by Ute III and V more than a generation

ago, and we see no equity in that. For that matter, checkerboard jurisdiction is a

fact of daily life throughout the West, the result of many different congressional

commands like those at issue here, and something many localities have lived with

successfully. Myton offers no reason to think it has not done or cannot do the

same. Surely, too, it is not for this court to override Congress’s commands on the

basis of claims of equity from either side. See Hydro Res., Inc. v. EPA, 608 F.3d

1131, 1158 (10th Cir. 2010) (en banc) (“[A]s this court has previously explained,


                                        - 14 -
Congress has authorized checkerboard jurisdiction under its definition of Indian

country in 18 U.S.C. § 1151.” (internal quotation marks omitted)).

      By way of equity Myton finishes with an appeal to the doctrine of laches.

That doctrine may be used as a matter of judicial discretion to vindicate

“justifiable expectations” threatened by the untimely assertion of long dormant

claims. City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 215

(2005) (internal quotation marks omitted). Because the Tribe waited so long to

assert claims against it, Myton submits, the town has long since and fairly come

to expect that it contains no tribal lands qualifying as Indian country.

      We don’t see how. For one thing, the lands that reverted to the Tribe in

1945 are owned by the United States and held in trust for the benefit of the Tribe.

Br. of United States as Amicus Curiae at 4. And given this, it is far from clear

whether the doctrine of laches could be used to determine the fate of this

territory, for laches is a line of defense that usually may not be asserted against

the United States. See Guar. Trust Co. v. United States, 304 U.S. 126, 132

(1938). For another thing, we don’t see how the town might have ever justifiably

thought that it contained no lands qualifying as Indian country. As we’ve seen,

the Department of the Interior long ago explained its view that the 1945

restoration order had the effect of returning to the Tribe’s jurisdiction lands

within the town’s limits. As we’ve seen, too, when local governments started to

assert jurisdiction over tribal members on tribal lands about thirty years ago, the


                                        - 15 -
Tribe brought a suit to challenge their actions — and no one disputes that the

Tribe did so in a timely manner. Since then, the Tribe has consistently defended

its jurisdiction over lands throughout the original Ute reservation territories —

lands that include Myton. Indeed, the Tribe has won two separate judgments (Ute

III and V) holding (first) that all and (then) that some of Myton is inside Indian

country. What’s more, in previous iterations of this dispute, in Hagen itself, and

again in this case, both the State of Utah and Myton’s county (Duchesne) have

accepted that the 1945 order restored tribal jurisdiction over unallotted former

reservation lands like those in Myton. See Perank, 858 P.2d at 949; Ute II, 716

F.2d at 1312-13; Br. for the Resp’t, Hagen, 510 U.S. 399 (No. 92-6281), 1993

WL 384805, at *9; Br. of Utah as Amicus Curiae at 3. On this record, Myton’s

claim to have long and justifiably expected that its town contains no Indian

country simply cannot withstand scrutiny. Cf. City of Sherrill, 544 U.S. at 214,

221 (approving laches on a very different record where the land was sold to

nontribal members and neither the tribe nor the federal government did anything

to assert their rights “[f]rom the early 1800’s into the 1970’s”).

      Before we finish rolling the rock up the hill, one more issue remains to

confront. The Tribe has filed a motion seeking the reassignment of this and

related cases to a different district judge on remand. Absent proof of bias,

reassignment is, of course, a step this court takes only in “extreme

circumstances.” Procter & Gamble Co. v. Haugen, 427 F.3d 727, 744 (10th Cir.


                                        - 16 -
2005) (internal quotation marks omitted). But we think those exist here. The

unavoidable fact is that nearly twenty years ago in Ute V this court explained that,

between Ute III and its own disposition, “all boundary questions at issue” had

been finally resolved. Ute V, 114 F.3d at 1521. Even so, the years since seem to

have brought nothing but relitigation of those boundaries. See, e.g., Ute VI, 790

F.3d at 1005. Utah and its subdivisions bear responsibility for much of this. We

have even had to take the extraordinary step of reminding them, parties who

should (and do) know better, of the possibility of sanctions if they continue to

defy settled judicial mandates. Id. at 1013. But the fact remains that the district

court, in Ute VI and again today, has twice failed to enforce this court’s mandate

in Ute V and has given us little reason to hope that things might change on

remand or that this long lingering dispute will soon find the finality it requires.

Accordingly, while we see no sign of bias in this case, we conclude reassignment

of this and all related disputes is required to ensure their just and timely

resolution. See, e.g., Leoff v. S & J Land Co., 630 F. App’x 862, 864, 866 (10th

Cir. 2015) (reassigning for failure to “comply strictly with the mandate” issued by

this court); United States v. Gupta, 572 F.3d 878, 892 (11th Cir. 2009) (same).

                                           *

      The district court’s order granting Myton’s motion to dismiss is reversed.

This case and all related matters shall be reassigned to a different district judge.




                                         - 17 -
The court and parties are directed to proceed to a final disposition both promptly

and consistently with this court’s mandates in Ute V, Ute VI, and this case.




                                       - 18 -
