Jurisdiction on the reservation: ‘It depends’

Driving up from Farmington, there was a colorful sign by the road, with a representation of an eagle, announcing that you had just entered the Southern Ute Indian Reservation. There were similar signs on Colorado Highway 172, just past Florida Mesa Elementary School and near the turn-off to Chimney Rock.

The reservation is huge and covers at least a third of La Plata County. I often wonder whether shoppers at Walmart realize they are less than a mile north of the reservation boundary.

I also wonder whether non-Indians who own land within the reservation give much thought to the fact that they’re living inside an Indian reservation. In previous articles, I have talked about general principles of tribal jurisdiction over non-Indians and federal and state jurisdiction over Indians. For non-Indians who live on the Southern Ute reservation, do these same principles apply? If a crime is committed on non-Indian land within the reservation, is it tried in tribal, federal or state court? For the most part, jurisdiction on the Southern Ute reservation follows the principles of federal Indian law, but there are some important differences.

First, we need to take a trip into the past to see how non-Indians ended up owning land within the Reservation. Under the Ute Treaty of 1868, Ute people owned an enormous chunk of Colorado. Once important mineral resources were discovered in places like Silverton, there was an increasing call for removal of Utes from Colorado altogether. Although removal was never entirely successful, the reservations got a lot smaller over time.

Toward the end of the 19th century, the United States Congress decided to extend the benefits of federal homestead laws to reservation lands.

Each adult member of the tribe received an allotment of land, usually 160 acres, and, lo and behold, at the end of that process, there was a huge amount of “surplus” land left over that was opened to non-Indian homesteaders. I suspect no one ever asked the Utes whether they thought the land was “surplus.”

The non-Indian land on the Southern Ute reservation likely started out as “surplus” land left over from the allotment process. In addition, some allotments passed into non-Indian ownership through a federal process called “forced fee.”

So, now we go back to our original question. Can the non-Indian successors to the original non-Indian homesteaders of this “surplus” land be prosecuted for crimes in tribal or federal court? The answer is found in a federal statue now nearly 30 years old.

There were court battles shaping up about jurisdictional issues in the early 1980s.

In one case, People vs. Luna, the Colorado Court of Appeals decided that the state did not have criminal jurisdiction over crimes committed by Indians within the town of Ignacio. At the same time, there was a series of “reservation diminishment” cases in the United States Supreme Court (Solem vs. Bartlett; Hagan vs. Utah; and South Dakota vs. Yankton Sioux Tribe) deciding whether an Indian reservation (and its corresponding jurisdictional authority) had been reduced when the reservation was opened to non-Indian homesteading.

Perhaps because it was only a matter of time before rancor about decisions like the Luna case would lead to a “reservation diminishment” challenge to the Southern Utes. The tribe, the state and other interested parties found a way to address the issues by convincing Congress to pass public Law 98-290 in 1984. This law, which applies only to the Southern Ute Reservation, defined and confirmed the boundaries of the reservation, making them impervious to a diminishment challenge in court.

P.L. 98-290 also changed the court in which certain crimes could be prosecuted. On most other reservations, when a non-Indian commits a crime against an Indian anywhere within a reservation’s boundaries, only the federal courts have jurisdiction. But on the Southern Ute reservation, the federal courts only have jurisdiction over non-Indians when they commit a crime on Indian trust land against an Indian victim. Here, the state has jurisdiction if the crime occurs on other lands on the reservation, even if the victim is an Indian. And in another interesting twist, in the town of Ignacio, P.L. 98-290 authorizes the state of Colorado, not the United States, to prosecute crimes committed by non-Indians against both Indians and non-Indians alike.

So the answer to the question of whether non-Indians on the Southern Ute reservation can be criminally prosecuted in tribal or federal court is “it depends.” As explained in my previous articles, tribal courts lack jurisdiction over crimes committed by non-Indians.

And on the Southern Ute Reservation, as a result of P.L. 98-290, the federal courts only have jurisdiction over crimes committed by non-Indians against Indians on trust land.

Steven C. Boos is an attorney with the firm of Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at sboos@mbssllp.com.