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State allowed to prosecute man

Judge's ruling says he is not a member of a recognized tribe

Published: Saturday, Aug. 29 2015 10:00 p.m. MDT

DUCHESNE — An 8th District judge has ruled that the state has jurisdiction to prosecute a 19-year-old man for the near-fatal stabbing of another man in 2004, after dismissing a claim that the defendant is a member of a federally recognized American Indian tribe.
In a seven-page ruling, Judge A. Lynn Payne said Jesse Doyle Clark failed to prove that he has a "significant degree of Indian blood" and that he is "recognized as an Indian by a tribe or society of Indians or by the federal government," the two legal requirements set forth in an 1846 U.S. Supreme Court case to establish who may be considered an American Indian.
Defense attorney Mike Humiston had sought to have the case against his client dismissed, arguing that Clark is a member of the Uintah Band of Indians and that the alleged offenses occurred on land that remains within the exterior boundaries of the Uintah and Ouray Indian Reservation.
Clark, who was 16 at the time of the alleged incident, is accused of stabbing another man during a drinking party in October 2004 at the Rock Creek Ranch. He was initially charged as a juvenile, but the case was later transferred to district court where Clark is charged with attempted murder, carrying a concealed dangerous weapon, obstruction of justice, and unlawful consumption of alcohol by a minor.
Humiston said his client is a descendant of an individual who was prevented from enrolling as a member of the Ute Indian Tribe because of the 1954 Ute Partition Act. The act terminated 455 mixed-blood Utes from federal supervision and excluded another 220 individuals from future tribal membership.
Humiston said many of the people terminated or excluded from the Ute Tribe were members of the Uintah Band, which he argued continues to exist as an independent tribe because "federal law presumes that a tribe consists of the majority of its members."
But Payne cited the Utah Supreme Court's decision in State v. Reber — a case he presided over at the trial court level, with Humiston representing the defendant — which held that the Uintah Band was no longer a separate entity once it joined the White River and Uncompahgre bands in 1937 to adopt the Ute Indian Tribe Constitution. That meant that when the UPA was enacted eight years later, "there was no Uintah Band to be expelled from the Ute Tribe," the judge wrote.
Payne added that the language of the UPA specifically states that upon termination, former tribal members no longer enjoy American Indian status and are subject to state jurisdiction.
"The UPA clearly grants the state jurisdiction over all individuals who were listed in the termination proclamation," Payne wrote.
The judge later added that he was "concerned" that Humiston had failed to address the issue of Indian blood quantum in his argument, that he did not address the Utah Supreme Court's ruling on the Uintah Band's status as a separate entity outside of the Ute Tribe and that he failed to argue for an "extension, modification or reversal" of existing law, all of which could be considered violations of Rule 11 of the Utah Rules of Civil Procedure.
Payne ordered Humiston to appear before him on May 12 to explain his actions and possibly face sanctions.
Humiston had not yet received a copy of the judge's ruling when he was contacted by telephone on April 23. He responded with disbelief when informed of the judge's allegations of possible Rule 11 violations.
"I can't believe he's doing this," Humiston said. "This is insanity. You can quote me on that: This is insanity.
"Denying the motion, I anticipated that," he continued, "but I'm creating a record for an appeal and he knows I'm doing that and he knows I can. All I can say is, good God. What planet is he living on?"
Humiston said the arguments he made in the motion filed with the court are legitimate and are currently pending before the U.S. 10th Circuit Court of Appeals in the Reber case. He also specifically criticized Payne's citation of the 1846 U.S. Supreme Court case in his ruling.
"That is not the law," Humiston said. "He's accusing me of not following the law and he's talking about a Supreme Court ruling that came down in 1846? He's talking about a completely different era."
Humiston said in the late 1970s, Congress directed the Interior Department to create a list of all federally recognized Indian tribes. He said subsequent to that, case law has established that blood quantum is not the government's concern and that tribes have an absolute right to determine their membership.
In the case of Clark, Humiston said he is recognized by the Uintah Band of American Indians as a member of their tribe, noting that the band is a diverse group.
"The Uintah Band consists of some members of the Ute Tribe, some who were terminated and some who were never terminated and never enrolled," the attorney said. "It's a mixed bunch."
Humiston has unsuccessfully tried to have Payne removed from the Clark case once before. He said he'll likely try again, characterizing the judge's apparent move to seek sanctions against him as "bizarre" and indicative of a "personal vendetta."
Unlike Humiston, Duchesne County Attorney Stephen Foote said he was "definitely pleased" with Payne's ruling.
"It's a well-written, well-researched opinion," the prosecutor said.


E-mail: geoff@ubstandard.com

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