TENA CAMPBELL, District Judge
This matter is before the court on a Motion for Summary Judgment submitted by Defendant Kevin Conway, Assistant Director of the State of Utah's Division of Wildlife Resources, and Defendant-Intervenor Ute Indian Tribe of the Uintah and Ouray Reservation (collectively "Defendants").
This case deals with the priority of hunting, fishing, and gathering rights on the Ute Indian Tribe's Uintah and Ouray Reservation ("Reservation") in the State of Utah. Plaintiff, the self-proclaimed Timpanogos Tribe, Snake Band of Shoshone Indians of Utah Territory, maintains in its Complaint that it has the right to issue hunting, fishing, and gathering permits to its members for use on the Reservation without interference from the Ute Indian Tribe or the State of Utah. It asserts this right based on its claim that its members are descendants of the aboriginal Timpanogos band of Indians in Utah, which existed on the Reservation land before either the Ute Tribe or the Reservation were established. Plaintiff further alleges that the Timpanogos band of Indians in Utah was Shoshone, not Ute, and that it maintained independence as a Shoshone tribe before and after the Ute Tribe and the Reservation were established. Accordingly, Plaintiff claims that its members have superior aboriginal rights in the land's natural resources.
Defendants do not recognize the Plaintiff's status as a tribe. Rather, they contend that the aboriginal Timpanogos band of Indians was Ute, not Shoshone, and that it merged into the Uintah Ute band of Indians (precursor to the Ute Tribe) in 1865. As a result of the merger, Defendants claim that the aboriginal Timpanogos band ceased to maintain an identity independent of the Ute Tribe and that the Ute Tribe has exclusive jurisdiction to issue permits for hunting, fishing, and gathering on the Reservation. Defendants also claim that the State of Utah has the right to prosecute individuals who are caught hunting, fishing, or gathering on the Reservation without a permit issued by the Ute Tribe.
Defendants' Motion for Summary Judgment seeks dismissal of Plaintiff's Complaint with prejudice and judgment in Defendants' favor on their Joint Counterclaim (which is essentially a mirror image of Plaintiff's claims). For the reasons set forth below, the Motion for Summary Judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Timpanogos Tribe, Snake Band of Shoshone Indians of Utah Territory ("Timpanogos Tribe") is not a federally-recognized Indian tribe. Nevertheless, Timpanogos Tribe claims aboriginal rights on land in Utah for its members, specifically the right to issue hunting, fishing, and gathering permits to its members in the area known as the Uintah and Ouray Reservation or Uintah Valley Reservation ("Reservation") without interference from the State of Utah or the Ute Indian Tribe ("Ute Tribe"). As the basis for its claims, the Timpanogos Tribe alleges that its members are Shoshone, not Ute, and that it has the right to issue permits because, it alleges, its members are the "Indians . . . for whom the [Reservation] was set apart." (Am. Verified Compl. ¶¶ 12-13.) It further alleges that its members, allegedly ancestors of the aboriginal Shoshone in Utah, have the right to hunt, fish, and gather on the Reservation free from prosecution by the State for hunting, fishing, or gathering without a permit issued by the State or the Ute Tribe.
The Ute Tribe asserts that it, not Timpanogos Tribe, has the exclusive right to issue permits for hunting, fishing and gathering on the Reservation and that permits issued by the Timpanogos Tribe are not valid. The State of Utah asserts that the Timpanogos Tribe does not have the authority to issue such permits. Further, it does not recognize the Timpanogos Tribe-issued permits as valid and intends to prosecute (or already has prosecuted) anyone (including members of the Timpanogos Tribe) for hunting, fishing, or gathering within the Reservation without a valid permit.
The Defendants claim that the Timpanogos Tribe is trying to re-write history. The State and the Ute Tribe assert that the Timpanogos Tribe was actually one of five bands of Utes that merged to form the Uintah Utes, who later, along with the Uncompahgre and White River Bands of Utes, joined together to form what is known today as the Ute Indian Tribe of the Uintah and Ouray Reservation. The Ute Tribe claims exclusive jurisdiction over the Reservation, which jurisdiction is exercised by the Tribal Business Committee, the Ute Tribe's elected governing body, through the Ute Tribe Constitution.
Defendants do not concede that the Timpanogos are a tribe. (See Defs.' Mot. at 2 n. 1.)
In support of their argument, the Defendants point to a series of "Findings of Fact" in two 1957 Indian Claims Commission ("ICC") decisions in the matter of Uintah Ute Indians of Utah v. United States, that, Defendants allege, conclusively establish that the Timpanogos merged with the Uintah Utes and thereafter ceased to exist independently of the Ute Tribe. See Uintah Ute Indians of Utah v. United States, Docket No. 44 (ICC Feb. 21, 1957), attached as Ex. 2 to Defs.' Br. in Supp. of Defs.' Mot. for Summ. J. (hereinafter "Docket No. 44"); Uintah Ute Indians of Utah v. United States, Docket No. 45 (ICC Feb. 21, 1957), attached as Ex. 3 to Defs.' Br. in Supp. of Defs.' Mot. for Summ. J. (hereinafter "Docket No. 45").
Obviously, the factual findings of ICC are at odds with the claims the Timpanogos Tribe makes in this case. Pointing to the ICC decisions, the Defendants assert that the Timpanogos Tribe's claims are barred by the doctrine of collateral estoppel, or issue preclusion. But Timpanogos Tribe contends, among other things, that the Ute Tribe may not rely on the ICC decisions as precedent because of a 1960 stipulation between the Ute Tribe and the United States stating that the "final judgment [in the two 1957 ICC decisions] . . . shall not be construed as an admission of either party, for the purpose of precedent or argument, in any other case." See Pl.'s Mem. in Opp'n to Mot. for Summ. J. at 15-16 (quoting Apr. 22, 1960 Stipulation for Entry of Final Judgment in the case of Uintah Ute Indians of Utah v. United States, attached as Ex. A to Pl.'s Mem.).
In addition to their issue preclusion defense, the Defendants submitted two expert reports purporting to set forth the history of the Ute Tribe and the relationship of the Timpanogos to the Utes. (See Expert Report of Floyd A. O'Neil, Ph.D. (Historian), attached as Ex. 4 to Defs.' Mem. in Supp. of Mot. for Summ. J.; Expert Report of Joel Janetski, Ph.D. (Anthropologist and Archaeologist), attached as Ex. 5 to Defs.' Mem. in Supp.) Both experts conclude that the Timpanogos merged with the Utes many years ago, that presently there is no separate tribe known as the Timpanogos Tribe, that the Timpanogos are Utes, not Shoshone, and that the Timpanogos, other than as members of the Ute Tribe, have no independent rights on the Reservation. (See id. at 2.) Both of Defendants' experts opine that historical, anthropological, and archaeological documentation shows that Plaintiffs' allegations are simply wrong. (See O'Neil Expert Report at 2 ("The historical evidence is all to the contrary."); Janetski Expert Report at 2 ("There is no anthropological, archaeological or historical evidence that supports such claims.").) They also conclude that the ICC Findings of Fact in the 1957 decisions are fully supported by the historical record and are accurate. (O'Neil Expert Report at 3; Janetski Expert Report at 2.)
Timpanogos Tribe did not submit its own expert reports in rebuttal, but it did submit affidavit testimony and other documentation in an effort to rebut the conclusions of the Defendants' experts. Defendants maintain that because Timpanogos Tribe did not submit an expert witness report in rebuttal, as a matter of law the Plaintiff cannot prevail over the Defendants' Motion for Summary Judgment. According to the Defendants, the issues raised are beyond the experience of the ordinary layperson and therefore require expert testimony. That is, the Defendants contend that because two expert witnesses came to a conclusion favoring the position of the Defendants, and because Timpanogos Tribe did not present contrary evidence in the form of an expert report, Defendants are per se entitled to summary judgment.
The court analyzes each set of arguments in turn below.
ANALYSIS
Legal Standard
Federal Rule of Civil Procedure 56 permits the entry of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient [to overcome a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff." Liberty Lobby,, 477 U.S. at 252. See also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999) ("A mere scintilla of evidence supporting the nonmoving party's theory does not create a genuine issue of material fact.").
Defendants' Collateral Estoppel/Issue Preclusion Defense
Under the doctrine of collateral estoppel, or issue preclusion, "`[w]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.'" United States v. Botefuhr, 309 F.3d 1263, 1282 (10th Cir. 2002) (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). The Defendants bear the burden of establishing the four elements of issue preclusion. Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1093 (10th Cir. 2003). Those elements are: "`(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been fully adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.'" Botefuhr, 309 F.3d at 1282 (quoting Dodge v. Cotter Corp., 203 F.3d 1190, 1197 (10th Cir. 2000)).
The essential issue in this case is whether the members of the Plaintiff Timpanogos Tribe are actually ancestors of the Timpanogos, one of five historic Ute bands, and whether that band merged into the Uintah Ute Band of Indians, which then ultimately became the Ute Tribe for whom the Reservation was set aside. The 1957 ICC decisions addressed similar, if not identical, factual issues regarding aboriginal title to the Reservation and the make-up of the Uintah Ute Band through a determination of which smaller Indian bands merged into the larger Uintah Band. For example, the ICC found that the Shoshone and Utes were "separate and distinct." (Docket No. 44 at Finding of Fact No. 5.) The ICC also found that the Timpanogos merged into the Uintah Utes in 1865. (Id. at Finding of Fact No. 4; Docket No. 45 at Finding of Fact No. 3.) The ICC found that the Uintah Utes band, along with the Uncompahgre and White River Bands of Utes, occupied the Reservation and are now known as the Ute Indian Tribe of the Uintah and Ouray Reservation. (Docket No. 44 at p. 32.) All of these issues are before this court.
The parties in the ICC litigation were the United States and the Ute Tribe. The State was not involved in the litigation, but it appears to agree with and rely upon the findings of fact issued by the ICC in the 1957 decisions. The question becomes whether Plaintiff Timpanogos Tribe was a party to the 1957 litigation or was a party in privity with the Ute Tribe in 1957. Defendants contend that Timpanogos Tribe was a party to the litigation (through the Ute Tribe) because the Timpanogos merged into the Ute Tribe in 1865. But this begs the question facing the court now and presents a circular argument (i.e., the Defendants' privity argument assumes the very fact it must prove — that the Plaintiff actually merged with and became part of the Ute Tribe in 1865, thereby ceasing to maintain an independent identity after that point).
Given the unique circumstances of this case, the court finds that the Defendants have failed to establish the third element of issue preclusion. Accordingly, the Timpanogos Tribe is not collaterally estopped by the ICC decisions from raising the issues now before the court.
The court does not agree with the Timpanogos Tribe's argument that the 1960 Stipulation between the U.S. and the Ute Tribe (in which the parties finally settled the litigation and agreed that the final judgment of the ICC "shall not be construed as an admission of either party, for the purpose of precedent or argument, in any other case" (Ex. A. to Pl.'s Opp'n Mem.)) prevents the Ute Tribe from relying on the ICC decisions as precedent. See, e.g., U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 26-27 (1994) ("`Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court finds that the public interest would be served by a vacatur.'") (internal citation omitted). In any event, Timpanogos Tribe's argument does not affect the State's right to cite to the ICC decisions, because the State was not a party to the Stipulation. Further, as noted above, the court is not allowing the Defendants to rely on the ICC findings of fact as evidence.
Nor will the court take judicial notice of the ICC Findings of Fact, as the Defendants suggest it should, because that would essentially undermine the doctrine of collateral estoppel and be contrary to the Federal Rules of Evidence. Rule 201 provides that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). See also Taylor v. Charter Med. Corp., 162 F.3d 827, 829-30 (5th Cir. 1998) ("court cannot take judicial notice of the factual findings of another court . . . because (1) such findings do not constitute facts `not subject to reasonable dispute' within the meaning of Rule 201; and (2) `were [it] permissible for a court to take judicial notice of a fact merely because it had been found to be true in some other action, the doctrine of collateral estoppel would be superfluous.'") (internal citations omitted); General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1082 n. 6 (7th Cir. 1997) ("courts generally cannot take notice of findings of fact from other proceedings for the truth asserted therein because these findings are disputable and usually are disputed."); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 895 (10th Cir. 1994) (citing to Fed.R.Evid. 201(b), and noting that taking judicial notice of anything but a "universal truth" established by common knowledge, or "certain facts, which from their nature are not properly the subject of testimony," would be improper). Indeed, Defendants essentially admit the facts at issue in this case are not common knowledge, because they argue that the subject necessarily requires expert testimony. Besides, it is clear that the factual issues before the ICC were subject to reasonable dispute and were determined after consideration of much documentary evidence.
See Defs.' Reply in Supp. of Mot. for Summ. J. at 12 (quoting language in Havasupai Tribe v. United States, 752 F.Supp. 1471 (D. Ariz. 1990), aff'd, 943 F.2d 32 (9th Cir. 1991), which said that the "ICC proceedings . . . are an appropriate subject for judicial notice").
This creates a potential problem for the Defendants, because Defendants' Statement of Undisputed Material Facts relies in part on the ICC Findings of Fact as evidentiary support for their position. (See, e.g., Defs.' Br. in Supp. of Mot. for Summ. J. at 5-12.) But Defendants also rely on their expert reports, which do support Defendants' statement of facts.
Expert Evidence
Plaintiff's Failure to Present Expert Rebuttal Evidence
To the extent that Defendants are contending that because the Plaintiff has failed to submit expert rebuttal evidence, as a matter of law Defendants are entitled to summary judgment, the court disagrees. The cases cited by Defendants — Randolph v. Collectramatic, Inc., 590 F.2d 844, 846, 848 (10th Cir. 1979), and Keller v. Albright, 1 F. Supp. 2d 1279, 1281-82 (D. Utah 1997), aff'd, 141 F.3d 1185 (10th Cir. 1998) — do not support such an argument.
Rather, the issue is whether the Plaintiff has presented admissible evidence that creates a genuine issue of material fact that must be tried by a jury.
Defendants' Expert Evidence and Plaintiff's Rebuttal Evidence Defendants' Evidence
Defendants' experts provide strong evidence to support Defendants' position. (See Expert Report of Floyd A. O'Neil, Ph.D. (Historian), attached as Ex. 4 to Defs.' Mem. in Supp. of Mot. for Summ. J.; Expert Report of Joel Janetski, Ph.D. (Anthropologist and Archaeologist), attached as Ex. 5 to Defs.' Mem. in Supp.) Both experts conclude that the Timpanogos merged with the Utes many years ago, that presently there is no separate tribe known as the Timpanogos Tribe, that the Timpanogos are Utes, not Shoshone, and that the Timpanogos, other than as members of the Ute Tribe, have no rights on the Reservation. See id. at 2. Both of Defendants' experts opine that the historical, anthropological, and archaeological documentation shows that Plaintiffs' allegations are simply wrong. (See O'Neil Expert Report at 2 ("The historical evidence is all to the contrary."); Janetski Expert Report at 2 ("There is no anthropological, archaeological or historical evidence that supports such claims.").) They also conclude that the ICC Findings of Fact in the 1957 decisions are fully supported by the historical record and are accurate. (O'Neil Expert Report at 3; Janetski Expert Report at 2.)
The Plaintiff has not challenged the qualifications or methodology of the Defendants' expert witnesses.
Plaintiff's Evidence
In opposition, Plaintiff submitted the following evidence: Affidavit of Mary Meyer (Ex. E to Pl.'s Mem. In Opp'n (hereinafter "Opp'n Mem.")), Affidavit of Dave Montes (Ex. J to Opp'n Mem.), an excerpt from the 1776 Dominguez-Escalante Journal (Ex. G to Opp'n Mem.), the October 3, 1861 Executive Order setting aside the Uintah Valley Reservation (Ex. H to Opp'n Mem.), an 1863 map purporting to show the boundaries of Shoshone territories (attached to the decision in Northwestern Bands of Shoshone Indians v. United States, 95 Ct. Cl. 642 (1942), aff'd, 324 U.S. 335 (1945), and one or more 1863 United States treaties with the Shoshone) (Ex. L to Opp'n Mem.), a copy of the unratified June 8, 1865 Spanish Fork Treaty (Ex. I to Opp'n Mem.), the Utah State Tax Commission Apr. 27, 2000 Decision in the matter of Mary Meyer v. Customer Serv. Div. of the Utah State Tax Comm'n (Ex. C to Opp'n Mem.), the State's Pre-Hearing Memorandum in the same Utah State Tax Commission matter (Ex. D to Opp'n Mem.), a list of Timpanogos Tribe membership eligibility requirements (Ex. F to Opp'n Mem.), and a Judgment issued by the Ute Tribal Court (Ex. K to Opp'n Mem.).
The Mary Meyer and Dave Montes Affidavits
In her affidavit, Mary Meyer states, among other things, that she is a member of the Timpanogos Tribe and presently is its Chief Executive Officer. (Meyer Aff. ¶¶ 2-3.) She also makes the following assertion: "I descend from Shoshonean and Northern Paiute Ancestors. I am not Ute. I have no Ute Indian blood, nor have I ever been enrolled with the Ute Indian Tribe, a Federal Corporation." (Id. ¶ 8.) Similarly, Dave Montes, in his affidavit, states that he is a Timpanogos Indian rather than a Ute, that he is a member of the Timpanogos Tribe, that he has never been a Ute Tribal member, that his children, mother, grandfather Leo Pritchett, and great grandfather Chief Tabby were never Ute Tribal members, that the Uintah Valley Reservation has always been his home, and that his great grandfather "spent most of his time in the Rock Creek area and always claimed the Wasatch Front as his home." (Montes Aff. ¶¶ 1, 3-5, 7, 8-9.)
Ms. Meyer's and Mr. Montes' personal statements offer nothing more than anecdotal information and are not relevant to the questions facing the court, particularly the question of whether the Timpanogos band of Indians merged with the Ute Indian Tribe, thereby ceasing to exist as an independent entity. See United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 548 (10th Cir. 2001):
[The United Tribe of Shawnee Indians' ("UTSI")] argument assumes the very factual issue at the heart of this litigation. UTSI can only prevail on its contention if we accept its
bare assertion that it is the present-day embodiment of the Shawnee Tribe. The only evidence even arguably offered by UTSI to support this proposition is the fact that UTSI is based on land patented to Mr. Oyler's ancestor by the Treaty. While this fact may establish that Mr. Oyler's ancestor was a member of the Shawnee tribe and that Mr. Oyler is therefore a descendant of a
tribal member, it says nothing about whether UTSI has maintained its identity with the Shawnee tribe and has continued to exercise that tribe's sovereign authority up to the present day.
Id. at 548 (emphasis added).
The Utah State Tax Commission Proceeding
Plaintiff raises a collateral estoppel argument when it relies on documents in the April 27, 2000 Utah State Tax Commission case of Mary Meyer v. Customer Serv. Div. of Utah State Tax Comm'n (Appeal No. 98-1181), to support its position. (See Pl.'s Opp'n Mem. at 7-8, 10, 12, 14, 17-22; Ex. C to Pl.'s Opp'n Mem (Final Decision of Utah State Tax Commission); Ex. D to Pl.'s Opp'n Mem. (State of Utah's Pre-Hearing Memorandum in tax proceeding).) According to Plaintiff,
The Timpanogos Tribe was historically recognized as a separate and distinct tribe and was of Shoshone [descent]. . . . Moreover, recently in the case of
Meyer v. Utah State Tax Comm'n, . . . the State of Utah and the Utah Tax Commission recognized Mary Meyer, the Chief Executive Officer of the Timpanogos Tribe, as "a member of the San Pitch [B] and of Timpanogos [T]ribe of Snake Indians[,]" "an Indian member of the Shoshone Nation[,]" and "not of Ute ancestry[.]". . . This recognition is prima facie evidence of the Plaintiff's distinct identity [today].
(Pl.'s Opp'n Mem. at 7-8 (internal citations omitted).) In the Meyer case, the issue was whether Ms. Meyer was exempt from the requirement to pay property taxes on her car because she was an Indian (non-Ute) living on the Reservation.
Plaintiff's collateral estoppel argument is not persuasive here for a number of reasons. First, the Ute Tribe was not a party to the litigation, so at a minimum, only one of two Defendants would, in theory, be collaterally estopped.
Second, the issue of Ms. Meyer's ancestry was not actually litigated. That is, the State of Utah had no reason to dispute Ms. Meyer's assertion that she is not a Ute, because her assertion meant that the State would prevail on its claim for property tax from a non-tribal member. As Defendants note, "Ms. Meyer could have said she was of any ethnicity, heritage, or group other than Ute and the State would have had no reason to contest her claim." (Defs.' Reply Mem. at 9.) Accordingly, the court disagrees with Plaintiff's overly broad statement that determination of "Ms. Meyer's ancestry [as a Shoshone] was necessary to the Utah State Tax Commission's judgment." (See Pl.'s Opp'n Mem. at 20.)
Third, the issue actually litigated in the tax commission case was "whether the state may tax personal property of an Indian who lives on a reservation, but is not an enrolled member of the governing tribe." (Utah State Tax Comm'n Final Decision at 6 (Ex. C to Pl.'s Opp'n Mem.).) TheMeyer decision assumes the truth of the proposition being challenged by the Plaintiff in this matter, namely that the Ute Tribe is the exclusive governing tribe of the Reservation. (See id. at 5-7; see also State of Utah's Pre-Hearing Mem. in Meyer at 2 ("The Ute Tribe is the governing Tribe over the lands of the Ute Indian Reservation.") (attached as Ex. D to Pl.'s Opp'n Mem.).) The Utah State Tax Commission administrative court did not decide the same issue facing the court today.
Finally, as noted by the Defendants, "the Commission would not have jurisdiction to adjudicate the Timpanogos' existence." See, e.g., Timpanogos Tribe v. Conway, 286 F.3d 1195, 1203 (10th Cir. 2002) ("It is rudimentary that `Indian title is a matter of federal law and can be extinguished only with federal consent' and that the termination of the protection that federal law, treaties, and statutes extend to Indian occupancy is `exclusively the province of federal law.'") (quoting Wilson v. Omaha Indian Tribe, 442 U.S. 653, 670-71 (1979)). The 1776 Dominguez-Escalante Journal, the 1861 Executive Order, 1863 Map of Shoshone Territory, and the Unratified 1865 Spanish Fork Treaty
Plaintiff cites to these historical documents (Exs. G, H, I, and L to Pl.'s Opp'n Mem.) to support its position that the Timpanogos Indians historically were recognized as a separate and distinct tribe of Shoshone descent that was induced to inhabit (and did inhabit) the area which became known as the Reservation. (See Pl.'s Opp'n Mem. at 7-10, 12-14, 26.) The Plaintiff claims that these documents establish its members' aboriginal rights and that such aboriginal rights are superior to the Ute Tribe's rights and jurisdiction.
The excerpt from the Dominguez-Escalante Journal notes the characteristics and location of the Timpanogos band of Indians in what was then Utah Territory. ( Journal Excerpt (Ex. G to Pl.'s Opp'n Mem.).) Plaintiff cites to this for the proposition that the "Timpanogos Tribe was historically recognized as a separate and distinct tribe and was of Shoshone [descent]." (Pl.'s Opp'n Mem. at 7-8, 12-13.) But the excerpt from the Journal makes no mention of Shoshone Indians. Moreover, it is not disputed that a separate Timpanogos band existed in 1776. (See Defs.' Reply Mem. at 5-6.) This piece of evidence does nothing to contradict the Defendants' evidence that the Timpanogos band merged into the Uintah Ute band of Indians in 1865 and ceased to maintain an identity independent of the Ute Tribe.
The 1861 Executive Order (later approved by an 1864 Act of Congress) set aside a reservation in the Uintah Valley "for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said [Utah] territory as may be induced to inhabit the same." (Oct. 3, 1861 Exec. Order (Ex. H to Pl's Opp'n Mem.); Act of May 5, 1864, ch. 77, 13 Stat. 63, § 2.) Plaintiff cites to this in support of the unremarkable proposition that the Uintah Valley Reservation was set aside as an Indian reservation by President Lincoln. (Pl.'s Opp'n Mem. at 13.) Plaintiff then makes the inference, in conjunction with citations to the 1776 Journal and an unratified 1865 treaty (discussed below), that "it is undisputed and historically documented that the Timpanogos Tribe constituted one of the `different tribes of Indians of said [Utah] territory' for whom the Uintah Reservation was established." (Id. at 26.) At most, giving the Plaintiff benefit of the doubt, this tends to show that the Reservation was established for more than one tribe, all of which would co-exist and have equal rights on the Reservation. Even if Plaintiff is arguing that it be allowed to "co-exist" with the Ute Tribe on the Reservation, it ignores later historical events which suggest that the Utes were the only Indians for whom the reservation was set aside. For example, under the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, the current Ute Tribe was formed by combining the Uintah, White River, and Uncompahgre bands of Ute Indians in 1936. Also, in 1937, the Constitution and By-Laws of the Ute Indian Tribe of the Uintah and Ouray Reservation were established with approval of the United States. See also Uintah Ute Indians of Utah v. United States, 28 Fed. Cl. 768, 784-85 (Fed.Cl. 1993) (stating that "aboriginal title provides a given tribe with rights as against allexcept the sovereign" and "a tribe must prove exclusive possession of a parcel. . . . [M]ixed use of a given parcel `precludes the establishment of any aboriginal title'").
The 1863 map cited by Plaintiff purports to show Shoshone territory in Utah. Plaintiff relies on it to show that Shoshone Territory included the land where the Reservation was established. But, in the court opinion to which it was attached as an exhibit, the court notes that the drawn boundaries were approximate. See Northwestern Bands of Shoshone Indians v. United States, 95 Ct. Cl. 642 (Ct.Cl. 1942). And the purpose of the 1863 treaties between the Shoshone and the United States, for which the map was originally drawn, was to create peaceful relations between the tribe and the government, not to negotiate or establish any right or title to the territory indicated on the map.
[T]he information [gathered by the agents of the government] as to the locations of various bands of these Indians and the area in which they lived and over which they roamed and hunted . . . was general in character and indefinite as to boundaries of specific areas and, also, as to specific bands or individual Indians of specific tribes. . . . The treaties [with the Shoshone] were intended to be, and we think they are, treaties of peace and amity because the Government had very little reliable information as to the territory actually occupied by these [Shoshone] Indians.
Id. A map of approximate boundaries, by itself or in conjunction with the rest of Plaintiff's evidence, is simply not enough to create a genuine issue of material fact in this case.
The Plaintiff also cites to the unratified 1865 Spanish Fork Treaty "with the Utah, Yampah Ute, Pah-Vant, Sanpete Ute, Tim-P-Nogs and Cum-Nm-Bah Bands of the Utah Indians." (Treaty (Ex. I to Pl.'s Opp'n Mem.) at 1 (emphasis added).) The Treaty provides in relevant part that the Timpanogos were a band of Indians in Utah Territory who were induced to "remove to and settle upon" the reservation described as "the entire valley of the Uintah River within Utah Territory extending on both sides of said river to the crest of the first range of contiguous mountains on each side." (Id. at 1-2.) Plaintiff cites to this in support of the proposition that the Timpanogos Band was distinct and did not merge with the Utes, because, it appears, the Timpanogos Band was represented by a separate signatory to the treaty. Aside from the fact that the treaty was never ratified (the Senate rejected it in 1869 so it is not a binding document), it also contains language that contemplates giving the group of bands as one entity exclusive use and occupation rights of a single piece of land. Specifically, the Treaty provides that one undivided tract of land is "reserved for the exclusive use and occupation of the said tribes." (Treaty art. II (Ex. I to Pl.'s Opp'n Mem.) (emphasis added).) This language is inconsistent with the Timpanogos Tribe's contention that the Reservation was set aside for it, not for the Ute Tribe. (See, e.g., Am. Compl. ¶ 12.)
Timpanogos Tribe Eligibility Requirements and the 1979 Ute Tribal Council Decision
The fact that a modern day entity calling itself Timpanogos Tribe maintains the eligibility requirements set forth in Plaintiff's Exhibit F does not create a genuine issue of material fact. The court must look to historical evidence to make its determination.
In the 1979 Ute Tribal Council decision (attached as Exhibit K to Pl.'s Opp'n Mem.), the Ute Tribal Council decided that certain individuals, some of whom were apparently ancestors of affiant Dave Montes, did not meet the requirements for Ute Tribe membership. The tribal court's holding does not tell us anything other than the fact that certain relatives of Mr. Montes were not members of the Ute Tribe. This does not support Plaintiff's claims. Plaintiff asks the court to make unreasonable inferences and leap to the conclusion that because Mr. Montes and his ancestors are not Ute, the Plaintiff, whose members include Mr. Montes, is a Shoshone tribe in existence since aboriginal times and for whom the Reservation was set aside. The court will not make that leap, nor will it allow a jury to do so.
In short, Plaintiff has presented nothing more than a "mere scintilla" of evidence, which is not enough to create a genuine issue of material fact. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999). Accordingly, the Defendants are entitled to summary judgment.
ORDER
For the foregoing reasons, the Defendants' Motion for Summary Judgment is GRANTED.