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10/26 Conference Update October 25, 2007

Posted by rezjudicata in SCOTUS.

The Justices of the Supreme Court will consider one Indian law case in the October 26 conference.

Reber v. Utah

In 2002, the State of Utah convicted the Petitioners for poaching. The Petitioners claimed that the state had no jurisdiction over them because they were Indian and the alleged crime occurred in Indian country. The Utah Court of Appeals agreed with the Petitioners and vacated their convictions. The Utah Supreme Court, however, reversed. Following the jurisdictional test of Solem v. Bartlett, the Court ruled that the state did have jurisdiction because the Petitioners were not Indians nor was there an Indian “victim.” To determine that the petitioners were not Indian, the court relied on the 1846 U.S. Supreme Court case of U.S. v. Rogers. Rogers ruled that one must have a significant degree of Indian blood and be recognized as an Indian by a tribe or the federal government. Utah’s Supreme Court ruled as a matter of law that 1/16 Indian blood is not a “significant degree.” Alternatively, the Court reasoned, the petitioners belong to the Uintah Band, which was terminated in part by legislation in the 1950s. Thus they legally have zero Indian blood because their ancestors lost their status as Indians. The petitioners also failed the second prong of Rogers: the Uintah Band is not recognized by the federal government. Therefore, the Court reversed the appellate court and reinstated the petitioners convictions.

In their petition, petitioners argue that there are significant questions over whether the Ute Partition Act (UPA) severed the Uintah Band from the Ute Tribe and whether the UPA has any effect on treaty rights (i.e. hunting and fishing) of individuals born prior to UPA and not listed in the termination rolls.

Read the Utah Supreme Court decision: Utah v. Reber                                                                                                                       



1. rezjudicata - October 26, 2007

Tom Goldstein over at http://www.scotusblog.com does not think that Reber v. Utah has a reasonable shot at a grant (http://www.scotusblog.com/wp/wp-content/uploads/2007/10/petitions-to-watch-conference-of-10-26-07.html).

I happen to agree, and here’s why:

This case is all about state criminal jurisdiction in Indian country. Under current Supreme Court case law, the formula for state jurisdiction is non-Indian defendant + non-Indian victim. The petitioners neither are challenging this basic test, nor are they challenging the antiquated Rogers test of Indian status. Instead, the petitioners appear to be searching for an interpretation of the UPA that preserves their Indian ethnicity. Unfortunately, even if the Supreme Court ruled in their favor on this point, either the Rogers blood-quantum or recognition prongs could still defeat their claim.

The more potent claim is unrelated to jurisdiction and involves treaty rights of individuals of terminated tribes. Menominee Tribe v. United States, 391 US 402, which held that Menominee treaty rights of hunting and fishing survived termination appears to support the petitioners. However, it is unclear whether the petitioners raised this point below and it is equally unclear whether the Uintah Band has a treaty similar to the Menominee treaty. The petitioner’s appendix contains no treaty.

The lack of a dispositive interpretation will likely prevent the Court from taking this case. This is too bad because the case does touch on some important issues, such as racially-based jurisdiction tests and the status of the Uintah Band, which has been treated poorly both by the federal government and the Ute Tribe. Unfortunately, the petitioners have not built a compelling record and have garbled some issues.

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