                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                     PUBLISH                    January 9, 2020
                                                              Christopher M. Wolpert
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee/
             Cross Appellant,
 v.                                              Nos. 18-4151 and 18-4160
 UINTAH VALLEY SHOSHONE
 TRIBE; DORA VAN; RAMONA
 HARRIS; LEO LeBARON; and others
 who are in active concert with the
 foregoing,

             Defendants - Appellants/
             Cross Appellees.


       APPEALS FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF UTAH
                   (D.C. NO. 2:17-CV-01140-BSJ)


Michael J. Rock, Michael J Rock, PLLC, Detroit, Michigan, for Appellants/Cross-
Appellees.

Jared C. Bennett, Assistant United States Attorney (John W. Huber, United States
Attorney, with him on the briefs), Office of the United States Attorney, Salt Lake
City, Utah, for Appellee/Cross-Appellant.


Before TYMKOVICH, Chief Judge, MURPHY, and CARSON, Circuit Judges.


TYMKOVICH, Chief Judge.
      The United States sought to enjoin the Uintah Valley Shoshone Tribe and

several individual members from selling hunting and fishing licenses that

authorized members to take wildlife from the Uintah and Ouray Reservation. The

Uintah Valley Shoshone Tribe is not a federally recognized Indian tribe, but it

nonetheless claims to have tribal rights, including hunting and fishing rights,

related to the Reservation.

      The district court held the Uintah Valley Shoshone Tribe has no authority

to issue licenses. The court, however, declined to issue a permanent injunction

prohibiting the issuance of future licenses against both the individual defendants

and the Tribe. We agree with the district court that the Uintah Valley Shoshone

Tribe lacks authority to issue hunting and fishing licenses, and we find the district

court did not abuse its discretion in declining to issue a permanent injunction.

                                 I. Background

      The Uintah and Ouray Reservation is located in northeastern Utah and is

the largest Indian reservation inhabited by members of the Ute Tribe. The Ute

Indians were originally composed of many bands dwelling across the state, each

with its own identity, and once occupied nearly half of the land comprising

present-day Utah. Floyd A. O’Neil & Kathryn L. MacKay, A History of the

Uintah-Ouray Ute Lands, 2 (1978). In 1861, President Lincoln established the

Uintah Valley Reservation in the Territory of Utah, which became a permanent

                                         -2-
reservation in 1864, and the tribal bands were to be consolidated within the

reservation.

      After the Uintah Valley Reservation was established, the United States

attempted treaty negotiations with the various Indian bands living on the

Reservation. Gustive O. Larson, Uintah Dream: The Ute Treaty—Spanish Fork,

1865, 14 BYU Stud. Q. 291, 363 (1974). The chiefs of the bands of Indians

resisted the terms of the initial treaty draft in an effort to keep their land, but after

a series of private negotiations, they relented. The Spanish Fork Treaty, which

surrendered certain rights of Indians and reserved others, was sent to the Senate

in 1866 where it waited for ratification. In 1869, the new Commissioner of

Indian Affairs recommended the treaty not be ratified in hopes of making a better

treaty. The Senate, therefore, adopted a resolution that it did not advise and

consent to the treaty’s ratification. But even without the ratification of the

Spanish Fork Treaty, different bands of Indians settled on the Uintah Reservation

and became known as the Uintah Indians. See Uintah and White River Band of

Ute Indians v. United States, 152 F. Supp. 953, 954–55 (Ct. Cl. 1957).

      A presidential Executive Order of January 5, 1882, established the

Uncompahgre Reservation for Uncompahgre Utes. After the Indian

Reorganization Act of 1934, the Uintah, White River, and Uncompahgre bands of




                                           -3-
the Ute Tribe reorganized to form the Ute Tribe of the Uintah and Ouray

Reservation.

      In 1954, Congress passed legislation that significantly reorganized the Ute

Tribe. In the Ute Partition and Termination Act of August 27, 1954, ch. 1009, 68

Stat. 868 (codified as amended at 25 U.S.C. §§ 677–677aa), Congress established

how the members of the Tribe would be determined. The Act first distinguished

between “full-blood” and “mixed-blood” Utes. “Full-blood” Utes are members

who possess “one-half degree of Ute Indian blood and a total of Indian blood in

excess of one-half, excepting those who become mixed-bloods by choice under

the provisions of section 4 hereof.” Id. By contrast, “mixed-blood” Utes are

members who do “not possess sufficient Indian or Ute Indian blood to fall within

the full-blood class as herein defined, and those who become mixed-bloods by

choice under the provisions of section 4 hereof.” Id. In 1956, the Secretary

published final rolls that listed 1,314 full-blood members and 490 mixed-blood

members. Pursuant to the Termination Act, after publication of this list, “the

tribe shall thereafter consist exclusively of full-blood members. Mixed-blood

members shall have no interest therein except as otherwise provided in this Act.”

Thus, the Act terminated the membership of federal mixed-blood Ute Indians with

limited rights surviving that determination.




                                         -4-
      After the Termination Act ended their tribal membership, some of the

mixed-blood Utes created an organization they called the Uintah Valley Shoshone

Tribe. But the organization is not, and never was, federally recognized as a tribe.

Rather, it is composed of mixed-blood Utes whose membership was terminated

under the Termination Act and their descendants. The leadership of the

organization currently includes individual defendants named in the

complaint—Dora Van, chairwoman; Ramona Harris, director; and Leo LeBaron,

director for wildlife.

      In 2016 and 2017, the Uintah Valley Shoshone Tribe sold hunting and

fishing licenses to its members, authorizing the members to take wildlife from the

Uintah and Ouray Reservation. The area within the Uintah and Ouray

Reservation where the licenses were sold includes state, federal, tribal, and

private land as well as Ute Tribal Trust Lands.

      In offering the licenses, the hunting and fishing applications assert the

Uintah Valley Shoshone Tribe is “a Federal Corporation d/b/a the ‘Ute Indian

Tribe’ of the Uintah & Ouray Reservations, Utah.” App. 720. And the hunting

licenses state the Uintah Valley Shoshone Tribe is a “Federally Recognized

Tribe.” App. 721–23. In addition, the organization has placed its own “No

Trespassing” signs on Ute reservation lands. App. 746.




                                         -5-
      To communicate to members about the hunting and fishing program, Van

and Harris used the organization’s Yahoo! email account and Facebook page.

Several Facebook subscribers live outside the State of Utah, and they received

numerous communications about the hunting and fishing program.

      In 2016, the Ute Division of Fish and Game encountered several members

of the Uintah Valley Shoshone Tribe hunting on the Ute reservation. The Ute

Tribe issued citations to the members and they were warned about the illegitimacy

of the hunting licenses. In addition, a Special Agent for the United States Fish

and Wildlife Service told the Uintah Valley Shoshone Tribe leadership that the

licenses were invalid. Nevertheless, the organization continued to sell licenses

well into 2017. 1

      The United States filed a complaint and moved for a temporary restraining

order against the Uintah Valley Shoshone Tribe under 18 U.S.C. § 1345, which

allows courts to enjoin wire fraud. The United States argues the Uintah Valley

Shoshone Tribe has engaged in a scheme to obtain money by falsely representing

to members that the organization has the authority to issue licenses to hunt and

fish on Ute land. Because the organization used Yahoo! and Facebook to




      1
          The Uintah Valley Shoshone Tribe agreed not to sell any licenses while
this litigation is pending.

                                        -6-
communicate to members, the United States asserts the organization used

interstate wire communications to further its scheme.

      In response, the Uintah Valley Shoshone Tribe presents two main

arguments. First, it argues the Ute Partition and Termination Act did not abrogate

hunting and fishing rights for mixed-blood members. Therefore, its members are

free to hunt and fish on the Uintah and Ouray Reservation. Second, the Uintah

Valley Shoshone Tribe argues the organization has maintained a cultural identity

and thus possesses certain treaty rights. The organization’s roots trace back to

1861 when the United States created the Uintah Valley Reservation. Even though

the United States has no formal relationship with the Uintah Valley Shoshone

Tribe, the Tribe contends the organization retains the treaty rights established in

1861 to use the land because it has maintained its separate and distinct tribal

community.

                                   II. Analysis

      The Uintah Valley Shoshone Tribe contends it has authority to issue

hunting and fishing licenses on the Reservation. If the answer to that question is

no, the United States argues the district court abused its discretion in denying the

permanent injunction. We address each argument in turn.




                                         -7-
      A. The Uintah Valley Shoshone Tribe Lacked Authority to Issue
      Hunting and Fishing Licenses

      The Uintah Valley Shoshone Tribe argues its rights were not ceded by the

Ute Partition and Termination Act of 1954 and it can therefore exercise tribal

rights, including issuing hunting and fishing licenses. The organization points to

the Executive Order of 1861 as the basis for its rights. While we recognize the

significance of the Executive Order of 1861 in creating the Uintah Valley

Reservation and establishing certain rights for its Indian occupants, the

subsequent treaties establishing the Uintah and Ouray Reservation and the

Termination Act undoubtedly modified those rights. The Uintah Valley

Reservation became the Uintah and Ouray Reservation. And then the Termination

Act explicitly provided “for the partition and distribution of the assets of the Ute

Indian Tribe of the Uintah and Ouray Reservation in Utah.” 68 Stat. at 868.

Thus, to determine whether the Uintah Valley Shoshone Tribe had the authority to

issue licenses, we consider the language of the Termination Act and our decision

interpreting this Act in United States v. Felter, 752 F.2d 1505 (10th Cir. 1985).

      While the Termination Act terminated the membership of mixed-blood Ute

Indians, it did not terminate certain rights, including their “remaining interest in

. . . all other tribal assets not susceptible to equitable and practicable

distribution.”




                                           -8-
68 Stat. at 876. Hunting and fishing rights are not “susceptible to equitable and

practicable distribution,” and because the Termination Act is silent on these

rights, the Termination Act did not explicitly abrogate these rights. See Felter,

752 F.2d at 1509 (holding the Termination Act was not a “backhanded way of

abrogating the hunting and fishing rights of mixed-blood Ute Indians”). Thus,

mixed-blood Utes maintained their individual hunting and fishing rights even

after their membership was terminated under the Termination Act.

      But these hunting and fishing rights were limited by the treaties. First, our

case law establishes that hunting and fishing rights are personal to the mixed-

blood Utes included on the initial roll sheet and as such are “neither alienable,

assignable, transferable nor descendible.” United States v. Von Murdock, 132

F.3d 534, 538 (10th Cir. 1997) (quotations omitted). See also quoting United

States v. Felter, 546 F. Supp. 1002, 1021 (D. Utah 1982) (“Tribal rights in

property are owned by the tribal entity, and not as a tenancy in common of the

individual members . . . including hunting and fishing rights.”). Only “the

individual enjoys a right of user derived from the legal or equitable property right

of the tribe in which he is a member.” F. Cohen, Handbook of Federal Indian

Law 185 (1942 ed.). Thus, only the original 490 mixed-blood members listed on

the final rolls in 1956 had hunting and fishing rights on the Uintah and Ouray

Reservation—these rights could not be passed down to their descendants. See


                                         -9-
Felter, 546 F. Supp. at 1025 (citing F. Cohen, Handbook of Federal Indian Law

185 (1942 ed.)) (“As each of the mixed-blood Utes passes away, his or her

personal right of user is extinguished, it being neither inheritable or

transferable.”).

       Second, only mixed-blood Utes acting in their individual capacity can

exercise these hunting and fishing rights. Mixed-blood members cannot convert

their rights of user in the Ute’s tribal rights into separate tribal rights of the

Uintah Valley Shoshone Tribe. The Termination Act states that the “mixed-blood

member” retains certain tribal assets such as hunting and fishing rights. 68 Stat.

at 876. The statute does not mention any property rights that inhere in a Uintah

organization after partition and termination. In fact, jurisdiction over the tribal

lands was established in the Ute Tribe.

       And our cases make it clear that hunting and fishing rights formerly vested

in the Uintah band were merged into and are part of the Ute Tribe. The Uintah

Valley Shoshone Tribe, even if it maintains some organizational identity, has no

formal, separate existence outside the Ute Tribe. Thus, any tribal right—like

hunting and fishing—belongs to the Ute Tribe alone. Only the Ute Tribe can

issue hunting and fishing licenses, and Uintah Valley Shoshone Tribe members

not included on the original roll sheet of mixed-blood members have “no right of

user in hunting and fishing rights originally granted to the Uintah Tribe.” Von


                                           -10-
Murdoch, 132 F.3d at 541; see also Felter, 752 F.2d at 1509 (“The right to hunt

and fish on reservation land is a long-established tribal right” (emphasis added)).

      Furthermore, the Termination Act established how these tribal assets were to

be governed. The Act states the tribal assets “not susceptible to equitable and

practicable distribution shall be managed jointly by the Tribal Business Committee

and the authorized representatives of the mixed-blood group.” 68 Stat. at 873. As

we recognized in Felter, these assets include hunting and fishing rights. Thus, the

hunting and fishing rights of individual members are managed solely by the Ute

Tribe and the mixed-blood representatives. This is a clear statutory indicator that

the Termination Act did not provide any asset control to other organizations

outside the Ute Tribe and the designated mixed-blood representative. As we noted

in Felter, “[t]he right to hunt and fish on reservation land is a long-established

tribal right” and the “[i]ndividual Indians . . . enjoy a right of user in the tribe’s

hunting and fishing rights.” 752 F.2d at 1509. In this case, the United States does

not dispute the rights of individual mixed-blood Utes who were listed on the

original rolls to hunt and fish. The United States only disputes the Uintah Valley

Shoshone Tribe’s assertion of tribal authority to issue licenses in direct

contradiction to the Termination Act.

      This interpretation is supported by Menominee Tribe v. United States, 391

U.S. 404 (1968), which our court relied on in Felter. In that case, the Supreme


                                           -11-
Court held the Menominee Indian Termination Act of 1954 did not abrogate

hunting and fishing rights of the Menominee Indians because the Termination Act

did not include an “explicit statement” abrogating individual hunting and fishing

rights. Id. at 412–13. Thus, the Supreme Court “decline[d] to construe the

Termination Act as a backhanded way of abrogating the hunting and fishing rights

of these Indians.” Id.

      We recognize that in interpreting federal statutes in Indian affairs we

“provide for a broad construction when the issue is whether Indian rights are

reserved or established, and for a narrow construction when Indian rights are to be

abrogated or limited.” Felter, 752 F.2d at 1512; see also F. Cohen, Handbook of

Federal Indian Law 224–25 (1982). In Felter, we determined the hunting and

fishing rights of the individuals were not abrogated because the statute did not

clearly abrogate them—this is a narrowing construction. But we cannot also

conclude that the Termination Act implicitly gave the Uintah Valley Shoshone

Tribe authority to exercise Ute tribal rights with respect to hunting and fishing,

when the Act plainly established those rights within the Ute Tribe.

      In sum, we hold the Uintah Valley Shoshone Tribe lacks the authority to

issue hunting and fishing licenses on the Uintah and Ouray Reservation to its

members.




                                         -12-
      B. The District Court Did Not Abuse Its Discretion in Denying a
      Permanent Injunction.

      The district court declined to order a permanent injunction. The government

contends the court erred and that an injunction is necessary to stop the Uintah

Valley Shoshone Tribe from issuing licenses. It claims the organization violated

the federal wire fraud statute.

      To obtain a permanent injunction, the United States must prove “(1) actual

success on the merits; (2) irreparable harm unless the injunction is issued; (3) the

threatened injury outweighs the harm that the injunction may cause the opposing

party; and (4) the injunction, if issued, will not adversely affect the public

interest.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th

Cir. 2007). We review the district court’s decision to deny a permanent injunction

for abuse of discretion. John Allan Co. v. Craig Allen Co., 540 F.3d 1133, 1142

(10th Cir. 2008).

      To succeed on the merits of a wire fraud claim—the first element of the

permanent injunction standard—the government must show “(1) a scheme or

artifice to defraud or obtain money by false pretenses, representations, or

promises; and (2) use of interstate wire communications to facilitate that scheme.”

United States v. Cochran, 109 F.3d 660, 664 (10th Cir. 1997). “A scheme to

defraud by false representations may be accomplished by patently false statements

or statements made with a reckless indifference as to their truth or falsity, and

                                         -13-
deceitful concealment of material facts may constitute actual fraud.” Id. at 665.

“[E]ven though a defendant may firmly believe in his plan, his belief will not

justify baseless or reckless representations.” Id.

      The district court found no such scheme existed based on the factual

stipulations. The district court stated:

      Based on the agreed factual stipulations it is difficult for the Court to
      find such a scheme to obtain money by false representations and
      promises through the sale of licenses. [I]t appears to the Court the
      United States as trustee is entitled to a ruling so declaring [the absence
      of sovereign power in Defendants to issue hunting and fishing licenses],
      but denied relief by way of injunction because of the absence of
      evidence dealing with a criminal statute. It is clear from the history
      since Lincoln’s time as a result of congressional and tribal action that
      Defendants have no power to issue licenses to hunt and fish on trust or
      Tribal lands. None. They should not do so, not because they have
      concocted a scheme to defraud purchases of such licenses, but because
      they simply lack power to issue such licenses.

United States v. Uintah Valley Shoshone Tribe, 2:17-cv-1140, 2018 WL 4222398,

at *6 (D. Utah Sept. 5, 2018). Because the district court determined the

government did not show actual success on the merits, the district court concluded

its analysis and declined to issue a permanent injunction.

      When we review for abuse of discretion, we look to whether the district

court’s decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.”

Prairie Band Potawatomi Nation, 476 F.3d at 822. Even if we disagree with the

district court’s decision based on our own review of the record, or if we find the



                                           -14-
district court’s explanation minimal, we still defer to the district court and affirm

its decision if the district court did not abuse its discretion.

        Here, the district court concluded that no scheme existed—the Uintah Valley

Shoshone Tribe was simply purporting to exercise authority it did not actually

have. This is a reasonable conclusion. Even though the Uintah Valley Shoshone

Tribe stated it was a federally recognized tribe and was doing business as the Ute

Indian Tribe, it did not make these statements to obtain money through a scheme.

Rather, the organization plausibly made these statements because it believed its

members were allowed to hunt and fish on the lands, and it wants to preserve its

cultural identity and protect members’ alleged individual and tribal rights.

        Given these conclusions by the district court, we find the court did not abuse

its discretion in denying a permanent injunction. And to the extent the Tribe

engages in future misconduct, the government is free to renew its request at that

time.

                                   III. Conclusion

        For the foregoing reasons, we AFFIRM the district court.




                                           -15-
