## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 8 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION,

Plaintiff - Appellee,

v. STATE OF UTAH; DUCHESNE COUNTY, a political subdivision of the State of Utah; ROOSEVELT CITY, a municipal corporation; DUCHESNE CITY, a municipal corporation; UINTAH COUNTY, a political subdivision of the State of Utah, Defendants - Appellants, and UNITED STATES OF AMERICA,

Amicus Curiae. No. 96-4073

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D. Ct. No. 75-CV-408-J)
John W. Andrews, Assistant Attorney General (Jan Gr aham, Attorney General, Carol Clawson, Solicitor General, Reed Richards, Ch ief Deputy Attorney General, and Michael M. Quealy, Assistant Attorney General, with him on the brief),* The Honorable John C. Godbold, Senior Circuit Judge, United States Court of

Appeals for the Eleventh Circuit, sitting by designation. - 2 - Office of the Attorney General for the State of Uta h, Salt Lake City, Utah, appearing for Defendant-Appellant State of Utah. JoAnn B. Stringham, Uintah County Attorney, Vernal, Utah, on the briefs for Defendant-Appellant Uintah County. Herbert W. Gillespie, Duchesne County Attorney, Roo sevelt, Utah, on the briefs for Defendant-Appellant Duchesne County. Robert S. Thompson, III, General Counsel, Ute Indian Tribe, Fort Duchesne, Utah (Sandra Hansen, Deputy General Counsel, Ute Indian Tribe, Fort Duchesne, Utah, and Tod J. Smith, Whiteing & Smith, Boulder, Colora do, with him on the brief), appearing for Plaintiff-Appellee. Robert L. Klarquist, U.S. Attorney (Lois J. Schiffe r, Assistant Attorney General, Edward J. Shawaker, U.S. Attorney, and Curtis G. Be rkey, U.S. Attorney, with him on the brief), Department of Justice, Washingto n, DC, appearing for amicus curiae United States of America.

Before TACHA, GODBOLD, * and HOLLOWAY, Circuit Judges.

TACHA, Circuit Judge.

This appeal requires us to address once again the s tatus of the Uintah Valley Indian Reservation. In the district court, the Ute Indian Tribe (“Tribe”) sought to obtain a permanent injunction preventing the State of Utah, the counties of Duchesne and Uintah, and the cities of Rooseveltand Duchesne (“state and local defendants”) from exercising civil and crimin al jurisdiction on certain lands- 3 -

within the original exterior boundary of the Uintah Valley Reservation in a manner inconsistent with our en banc opinion in Ute Indian Tribe v. Utah , 773 F.2d 1087 (10th Cir. 1985) (en banc), cert. denied , 479 U.S. 994 (1986). In opposing the injunction, the state and local defend ants rely on Hagen v. Utah , 510 U.S. 399 (1994), in which the Supreme Court held, c ontrary to our decision in Ute Indian Tribe , that the lands in question are not part of the Ui ntah Valley Reservation. Notwithstanding Hagen , the district court held that it was bound under the “law of the case” doctrine to follow our mandate in Ute Indian Tribe and thus, that it was without authority to alter th e existing jurisdictional boundaries as set forth in Ute Indian Tribe . In light of the inconsistency between Ute Indian Tribe and Hagen , however, the district court requested that we iss ue instructions on how to proceed and suggested that w e construe the request as an invitation to recall our mandate in Ute Indian Trib e . The state and local defendants appeal, arguing that(1) our en banc decision in Ute Indian Tribe does not preclude their exercise of jurisdiction o ver former reservation lands under the doctrines of law of the case, collateral estoppel, or res judicata and (2) Hageneffectively overruled Ute Indian Tribe , permitting the defendants to exercise jurisdiction over all the la nds originally held to be within reservation boundaries. Along with their appeal, t he state and local defendants have filed a motion to recall, in its entirety, ourmandate issued pursuant to Ute- 4 -

Indian Tribe . The United States as amicus curiae urges us to recall and modify the mandate in Ute Indian Tribe only to the extent that it directly conflicts with Hagen . We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because we conclude that the boundaries of the Uintah Valley R eservation must be redetermined in light of Hagen , we modify our holding in Ute Indian Tribe to the extent that it directly conflicts with the holding in Hagen

. BACKGROUND I. I NTRODUCTION This case is unlike other reservation diminishment cases in which courts must decide whether congressional enactments openin g reservation lands to nonIndian settlement have diminished or disestablishedreservation boundaries. See,
e.g. , Solem v. Bartlett , 465 U.S. 463 (1984); Rosebud Sioux Tribe v. Kneip , 430 U.S. 584 (1977); DeCoteau v. District County Court , 420 U.S. 425 (1975); Mattz v. Arnett , 412 U.S. 481 (1973); Seymour v. Superintendent of Wash. State Penitentiary , 368 U.S. 351 (1962); United States v. Celestine , 215 U.S. 278 (1909). Over a decade ago, we answered that questi on when we addressed whether congressional enactments from 1902 through 1905 had the effect of diminishing the Uintah Valley Reservation. Ute Ind ian Tribe , 773 F.2d at 1093. Sitting en banc in 1985, we held that the Reservati on had not been diminished. Id. The Supreme Court denied certiorari on December 1, 1986. Ute Indian Tribe- 5 -

v. Utah , 479 U.S. 994 (1986). The State of Utah sought to relitigate the boundary issue in three criminal actions commenced in the Utah state courts. In the se cases, the Utah Supreme Court concluded that the 1902-1905 allotment legisl ation had diminished the Uintah Valley Reservation. State v. Hagen , 858 P.2d 925 (Utah 1992); State v. Coando , 858 P.2d 926 (Utah 1992); State v. Perank , 858 P.2d 927 (Utah 1992). In 1994, the Supreme Court granted certiorari “to resolve the direct conflict between these decisions of the Tenth Circuit and th e Utah Supreme Court on the question whether the Uintah Reservation has been di minished.” Hagen , 510 U.S. at 409. The Supreme Court expressly disagreed with our decision in Ute Indian Tribe and held that the Uintah Valley Reservation had be en diminished. Id. at 421-22. In this appeal, we decide whether to modify our judgment in Ute Indian Tribe , after the time for rehearing has passed, in lightof its conflict with a later, contrary decision of the Supreme Court.
II. U TE I NDIAN T RIBE I-III : T HE D ISTRICT C OURT , P ANEL , AND E N B ANC O PINIONS In 1975, the Tribe sought to exercise jurisdiction over all of the land originally encompassed in the Uintah Valley Reservation pursuant to the Tribe’s newly enacted Law and Order Code. When non-Indians living in and around several towns within the original boundaries protes ted the action, the Tribe sought declaratory and injunctive relief in federal court to establish the exterior- 6 -

boundaries of the Uintah Valley Reservation and to restrain the state and local defendants from interfering with enforcement of the Law and Order Code within those boundaries. The Tribe argued that the origin al boundaries of the Uintah Valley Reservation, established by executive order in 1861 and confirmed by Congress in 1864, continued to exist undiminished. The Tribe thus argued that it had jurisdiction over all of the lands encompassed within the original boundaries of the Reservation because such lands were “Indian country” as defined by 18 U.S.C. § 1151. On the other hand, the state and local defendants a rgued that congressional enactments from 1902 through 1905, opening Reservat ion lands to non-Indian settlement and setting aside lands for a national f orest reserve, had the effect of diminishing the Uintah Valley Reservation. The def endants also argued that congressional enactments from 1894 to 1897 had the effect of completely disestablishing the Tribe’s Uncompahgre Reservation

. In addressing the parties arguments, the district c ourt gave a comprehensive summary of the relevant legislation, legislative hi story, contemporaneous interpretations by the executive branch, and other circumstances surrounding the enactment of the legislation. We therefore only br iefly summarize the legislative treatment of the lands below. A. Legislative Treatment of Reservation Lands- 7 - 1. The Uintah Valley Reservation In 1902, Congress passed legislation directing the Secretary of the Interior to make individual allotments out of the Uintah Val ley Reservation by October 1, 1903, provided that a majority of the adult male me mbers of the Ute Indians consented. Act of May 27, 1902, ch. 888, 32 Stat. 263, 263-64 (“1902 Act”). The 1902 Act stated that after October 1, 1903, “al l the unallotted lands within said reservation shall be restored to the public do main ” and subject to entry by non-Indians under the homestead laws. Id. (emphasis added). Congress delayed the allotment process, however, and extended the op ening date in 1903 and again in 1904. Act of Mar. 3, 1903, ch. 994, 32 Stat. 98 2, 997-98; Act of Apr. 21, 1904, ch. 1402, 33 Stat. 189, 207-08. In 1905, Con gress extended the opening date a third time--to September 1, 1905--and direct ed the Secretary to allot the Reservation unilaterally if the Tribe’s consent was not obtained. Act of Mar. 3, 1905, ch. 1479, 33 Stat. 1048, 1069-70 (“1905 Act”) . The 1905 Act did not contain the same language restoring the unallotted and unreserved lands to the “public domain,” but provided that such lands “shal l be disposed of underthe general provisions of the homestead and townsite laws of the United States.” Id. (emphasis added).- 8 - 2. The National Forest Lands- 9 -

In addition to extending the time of entry under th e 1902 Act and describing the entry process, the 1905 Act authoriz ed the President to “set apart and reserve” lands in the Reservation as a forest r eserve prior to opening. 33 Stat. 1070. Pursuant to this power, on July 14, 19 05, President Theodore Roosevelt issued a proclamation designating some 1, 010,000 acres within the Uintah Valley Reservation as an addition to the Uin tah National Forest Reserve. Proclamation of July 14, 1905, 34 Stat. 3113, 3116. The proclamation also declared that the unallotted lands in the Uintah Va lley Reservation, which were not otherwise reserved, would “be opened to entry, settlement and disposition under the general provisions of the homestead and t ownsite laws.” Id. at 3120.

3. The Uncompahgre Reservation In 1894, Congress passed legislation providing for the allotment of the Uncompahgre Reservation to individual members of th e Tribe. The legislation stated that all unallotted lands “shall . . . be re stored to the public domainand made subject to entry” under the homestead and mine ral laws. Act of Aug. 15, 1894, ch. 290, 28 Stat. 286, 337-38 (emphasis added ). The allotment process, however, was delayed, and in 1897, Congress passed legislation mandating the allotment of the Uncompahgre Reservation and openin g the unallotted lands to entry. Act of June 7, 1897, ch. 3, 30 Stat. 62, 87

. B. Ute Indian Tribe I : 1981 District Court Opinion- 10 -

In 1981, the district court issued Ute Indian Tribe v. Utah , 521 F. Supp. 1072 (D. Utah 1981) (hereinafter “Ute Indian Tribe I ”). The district court held that Congress’s decision to open the unallotted lan ds to settlement did not diminish the Reservation’s boundaries. Id. at 1132. The court recognized that the language of the 1902 Act directing that all unallotted lands “be restored to the public domain” would have diminished the Reservatio n had the unallotted lands then been opened for settlement. Id. at 1122. The court concluded, however, that the 1905 Act superseded the 1902 Act. Id. Unlike the 1902 Act, the 1905 Act provided only that the unallotted lands were to “be disposed of under” the homestead and township laws. Id. at 1132. The district court reasoned that the new language indicated that Congress did not intend to diminish the Reservation. Id. The district court therefore concluded that the u nallotted lands remained part of the Uintah Valley Reservation. Id. The district court reached a different conclusion o n the status of the National Forest Lands and the Uncompahgre Reservati on. Regarding the National Forest Lands, the court concluded that the language in the 1905 Act empowering the president to “set apart and reserve” timber lan ds for a national forest demonstrated Congress’s clear intent to diminish th e Uintah Valley Reservation. Id. at 1136. Likewise, the district court concluded t hat the language in the 1894- 11 -

Act restoring unallotted reservation lands “to the public domain” showed a clear congressional intent to disestablish the Uncompahgr e Reservation. Id. at 1106. C. Ute Indian Tribe II : The 1983 Court of Appeals Panel Decision In a two-judge majority opinion, a panel of this co urt affirmed the district court opinion in part and reversed in part. Ute In dian Tribe v. Utah , 716 F.2d 1298 (10th Cir. 1983) (hereinafter “Ute Indian Trib e II ”). The panel held that none of the lands in question remained within the o riginal reservation boundaries. The panel agreed with the district court that the 1 902 Act’s language restoring the unallotted lands “to the public domai n” was sufficient to diminish the Uintah Valley Reservation. Id. at 1308-09. Unlike the district court, however, the panel concluded that the 1905 Act did not supersede Congress’s intent to diminish the Reservation under the 1902 A ct. Id. at 1311. Thus, the panel held that the 1902-1905 allotment legislation had diminished the Uintah Valley Reservation. Id. at 1311-12. The panel agreed with the district court’s conclusi ons regarding the National Forest Lands and the Uncompahgre Reservati on. The panel concluded that Congress intended to withdraw the National For est Lands, id. at 1314, and the Uncompahgre Reservation, id. at 1307, from their original reservation status.- 12 -

D. Ute Indian Tribe III : The 1985 Court of Appeals En Banc Decision On rehearing en banc, a majority of the court held that all of the lands at issue retained their reservation status. Ute India n Tribe v. Utah , 773 F.2d 1087, 1093 (10th Cir. 1985) (en banc) (hereinafter “Ute I ndian Tribe III ”). The en banc court concluded that the 1902-1905 allotment legisl ation did not have the effect of diminishing or disestablishing the Uintah ValleyReservation. Id. at 1089. Similarly, the court held that the withdrawal of th e National Forest Lands did not diminish the Uintah Valley Reservation, id. at 1090, and that the 1894 and 1897 allotment legislation did not disestablish the Unco mpahgre Reservation. Id. at 1093. In reaching a holding completely contrary to the pa nel, the en banc court relied on the newly-decided case of Solem v. Bartle tt , 465 U.S. 463 (1984). The court concluded that under Solem , congressional language restoring reservation lands to the public domain “is not the same as a co ngressional state of mind to diminish,” and hence “does not reliably establish t he clear and unequivocal evidence of Congress’ intent to change the boundari es.” Ute Indian Tribe III , 773 F.2d at 1092. Further, the court found no legislat ive history or other contemporary historical evidence sufficient to supp ort a finding of diminishment or disestablishment as to any of the lands in quest ion. Id. at 1092-93. Thus, the court held that all the lands retained their reserv ation status and remained Indian- 13 -

country, subject to the jurisdiction of the Tribe a nd the federal government. Thereafter, the Supreme Court denied certiorari . Ute Indian Tribe v. Utah , 479 U.S. 994 (1986). III. U TAH V . H AGEN : T HE 1994 S UPREME C OURT D ECISION In several related criminal cases arising in the late 1980s, the Utah Supreme Court ruled, contrary to the Tenth Circuit, that th e original boundaries of the Uintah Valley Reservation had been diminished by th e 1902-1905 allotment legislation. See State v. Perank , 858 P.2d 927 (Utah 1992); State v. Coando , 858 P.2d 926 (Utah 1992); State v. Hagen , 858 P.2d 925 (Utah 1992). The cases arose as a result of state felony prosecutions against th ree Indians for crimes committed in Myton and Roosevelt, Utah, two towns within the original boundaries of the Uintah Valley Reservation. The defendants challeng ed the prosecutions on the basis that the state trial court lacked jurisdictio n over their crimes because the defendants committed their crimes in “Indian country” as defined by 18 U.S.C. § 1151(a). The defendants argued that under our en banc decision in Ute Indian Tribe III , the towns remained within the Reservation and thu s within Indian country. The State of Utah, on the other hand, arg ued that our holding in Ute Indian Tribe III was wrong, that the Reservation had been diminishe d, and that the towns were outside the Reservation and thus out side Indian country. The Utah Supreme Court agreed with the State, and held that because the Reservation- 14 -

had been diminished, the state trial court properly exercised criminal jurisdiction over the defendants. Perank , 858 P.2d at 953; Coando , 858 P.2d at 927; Hagen , 858 P.2d 925-26. In 1993, the Supreme Court granted certiorari in Hagento resolve the conflict between the decisions of the Tenth Circuitand the Utah Supreme Court. Hagen v. Utah , 507 U.S. 1028 (1993). In 1994, the Supreme Courtaffirmed the Utah Supreme Court’s resolution of the boundary iss ue, expressly rejecting Ute Indian Tribe III ’s conclusion that the Uintah Valley Reservation ha d not been diminished. Hagen v. Utah , 510 U.S. 399, 421-22 (1994). In Hagen , the Supreme Court performed a familiar analysis o f the statutory language, legislative history, and contemporary his torical understanding of the allotment legislation at issue. See id. at 410-21. The Court’s analysis, however, was limited to the status of the unallotted Uintah Valley Reservation lands opened to settlement under the 1902-1905 allotment legislation. See id. The Court did not address the National Forest Lands or the Uncomp ahgre Reservation, neither of which was before the Court for consideration. Afte r looking to the three diminishment factors, the Court concluded that Cong ress’s “baseline intent to diminish the Reservation expressed in the 1902 Act survived the passage of the 1905 Act,” id. at 415, and that the “[c]ontemporary historical ev idence supports [the] conclusion that Congress intended to diminishthe Uintah Reservation.” Id.- 15 -

at 416. The Court therefore upheld the State of Ut ah’s exercise of criminal jurisdiction over acts occurring within the origina l boundaries of the Uintah Valley Reservation. Id. at 421-22. IV. Ute Indian Tribe IV : The 1996 District Court Decision Immediately after the Utah Supreme Court issued its slip opinions in the state criminal cases, the Tribe filed a motion in f ederal district court seeking a permanent injunction preventing the state and local defendants from enforcing or relying upon Perank , Coando , and Hagenin any way. On August 31, 1992, the state and local defendants and the Tribe entered in to a stipulation, under which the state and local defendants agreed to refrain fr om enforcing the Utah Supreme Court decision in Perankor exercising jurisdiction in any manner inconsist ent with the en banc decision in Ute Indian Tribe III , pending a decision on the merits in the district court. The district court incorpor ated the stipulation into an order dated September 2, 1992 (“Injunction Order”). In 1993, after the Supreme Court granted certiorari in Hagen , the district court stayed further proceedings on the Tribe’s mot ion pending the outcome of Hagenin the Supreme Court. On February 23, 1994, the S upreme Court issued its decision in Hagen . On April 24, 1994, the state and local defendant s filed a motion to vacate and set aside the Injunction Orderand to dismiss the Tribe’s motion for permanent injunctive relief.1 The district court modified its order to allow the State of Utah to prosecute

felonies on former reservation lands because in United States v. Duncan , 857 F. Supp. 852 (D. Utah 1994), the district court had dismissed a federal felony prosecution against an Indian for acts occurring in Roosevelt, Utah. The court ruled that Hagenprecluded federal jurisdiction on such lands. Id. at 853. - 16 - On May 2, 1994, the district court modified the Inj unction Order “to allow the [s]tate and [l]ocal [d]efendants to prosecute f elony crimes occurring on lands within the original boundaries of the Uintah Valley Reservation which are not ‘Indian country’ as defined by 18 U.S.C. § 1151, etseq .” The court emphasized that it was “not determining one way or another whi ch lands may or may not constitute ‘Indian country.’” 1 On April 2, 1996, the district court issued Ute Ind ian Tribe v. Utah , 935 F. Supp. 1473 (D. Utah 1996) (“Ute Indian Tribe IV ”). In a comprehensive and detailed opinion, the district court fully addresse d the binding effect, as between the parties, of our earlier en banc decision in Ute Indian Tribe III , as well as the extent of direct conflict between Ute Indian Tribe III and Hagen . Id. at 1484- 1516. Rather than finally deciding these issues, h owever, the district court held that it was bound under “law of the case” rules to enforce the mandate in Ute Indian Tribe III . Id. at 1516-25. Thus, the district court did not reac h the merits of the Tribe’s request for permanent injunctive rel ief. Id. In lieu of a final resolution of the dispute, the district court reque sted that we issue instructions on how to proceed and suggested that we construe the r equest as an invitation to- 17 -

recall our mandate in Ute Indian Tribe III . The court also concluded that the Injunction Order, as modified, should remain in eff ect to allow the state and local defendants to prosecute criminal felonies occurring on former Uintah Valley Reservation lands. Id. at 1531. This appeal followed. DISCUSSION I. I NTRODUCTION On appeal, the Tribe maintains that principles of f inality require the district court to enjoin permanently the state and local def endants from exercising jurisdiction in a manner inconsistent with Ute Indi an Tribe III . On the other hand, the state and local defendants argue that we should give effect to the contrary boundary determination in Hagenby recalling the mandate in Ute Indian Tribe III in its entirety and reinstating the original Tenth Circuit panel opinion. The United States as amicus curiae urges us to recall and modify the mandate in Ute Indian Tribe III only to the extent that it directly conflicts with Hagen

. In resolving this dispute, we follow a three-part f ramework. First, we decide whether the district court was bound to foll ow the mandate in Ute Indian Tribe III by continuing the Injunction Order. After conclud ing that the district court properly followed our mandate, we nevertheles s decide whether to modify Ute Indian Tribe III in light of the inconsistent boundary determinatio n in Hagen

. Finally, after concluding that Ute Indian Tribe III should be modified, we decide- 18 -

whether to recall our mandate in its entirety or mo dify our en banc opinion only to the extent that it directly conflicts with Hagen . Because of the importance of finality, we conclude that Ute Indian Tribe III should be modified only to the extent that it conflicts with Hagen

. II. T HE B INDING E FFECT OF U TE I NDIAN T RIBE III We begin by determining the binding effect of Ute I ndian Tribe III on the allocation of jurisdiction among the federal govern ment, the Tribe, and the state and local defendants. Whether the district court w as bound by the mandate in Ute Indian Tribe III to continue the Injunction Order, and whether this court is bound by principles of finality to enforce our prior boun dary determination, are separate inquiries. We address each question in turn. A. The Mandate Rule The state and local defendants first contend that t he district court erred in holding that it was bound by Ute Indian Tribe III to continue to enjoin their exercise of civil and non-felony jurisdiction despi te the Supreme Court’s decision in Hagen . We review the district court’s decision to conti nue an injunction for an abuse of discretion, examining “whether the distric t court committed an error of law or relied on clearly erroneous fact findings.” Walmer v. United States Dep’t of Defense , 52 F.3d 851, 854 (10th Cir.), cert. denied , 116 S. Ct. 474 (1995). We review questions of law decided by the district cou rt de novo. Harolds Stores,- 19 -

Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1555 (10th Cir.), cert. denied , 117 S. Ct. 297 (1996). The district court concluded that it was bound by t he “law of the case” doctrine to enforce the boundary determinations in Ute Indian Tribe III . Under that doctrine, once a court decides an issue, the s ame issue may not be relitigated in subsequent proceedings in the same case. Arizon a v. California , 460 U.S. 605, 618-19 (1983); United States v. Monsisvais , 946 F.2d 114, 115-16 (10th Cir. 1991). An important corollary of the doctrine, kno wn as the “mandate rule,” provides that a district court “must comply strictl y with the mandate rendered by the reviewing court.” Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of America , 962 F.2d 1528, 1534 (10th Cir. 1992); see also Mason v. Texaco, Inc. , 948 F.2d 1546, 1553 (10th Cir. 1991) (“Under the ‘l aw of the case’ doctrine, the district court may not deviate from the appellate c ourt’s mandate.”). In this case, the district court concluded that the mandate in Ut e Indian Tribe III remained in effect and therefore ruled that it was bound to fol low the mandate by continuing to enjoin the defendants’ exercise of jurisdiction. The state and local defendants contend that the dis trict court is not bound by the mandate in Ute Indian Tribe III because of an intervening change in controlling law, an exception to the mandate rule. See Pittsburg & Midway Coal Mining Co. v. Watchman , 52 F.3d 1531, 1536 n.4 (10th Cir. 1995). The- 20 -

defendants maintain that because Hagenwas “intervening” (i.e. , coming after Ute Indian Tribe III but before the Tribe’s present motion for injuncti ve relief), the district court should have departed from the appell ate mandate and followed the boundary determination in Hagen . The defendants contend that the district court, by failing to do so, wrongfully continued to enjoin their exercise of jurisdiction pursuant to Hagen

. The argument of the state and local defendants is w ithout merit. In short, the intervening-change-in-law exception does not ap ply where, as here, the case in which the erroneous ruling occurred is no longersub judice--that is, where the case has become final. See Colorado Interstate Gas , 962 F.2d at 1534 (holding that once an appellate court resolves an issue and remands the case to enter judgment in accordance with the mandate, the distri ct court may not disregard the mandate and apply a later change in law on remand b ecause the question is no longer sub judice); Collins v. City of Wichita , 254 F.2d 837, 839 (10th Cir. 1958) (holding that “[a] change in the law or in the judi cial view of an established rule of law is not such an extraordinary circumstance wh ich justifies” setting aside a final judgment). In Ute Indian Tribe III , our en banc opinion disposed of all boundary questions at issue on the merits. Our ruling left nothing for the district court to address beyond the “ministerial dictates of the man date.” Colorado Interstate Gas- 21 -

Co. , 962 F.2d at 1534. In other words, the case was n o longer sub judice after December 9, 1986. As of that date, the district co urt was without authority to depart from an appellate mandate based on a later c hange in law. Because Ute Indian Tribe III proceeded to a final decision, a later change in l aw could not “reopen the door already closed.” James B. Beam Di stilling Co. v. Georgia , 501 U.S. 529, 541 (1991). Accordingly, we hold that th e district court properly followed our mandate in Ute Indian Tribe III by continuing to enjoin the state and local defendants from exercising jurisdiction pursu ant to Hagen

. B. Modification of Ute Indian Tribe III Although the district court did not err in holding that it was bound by Ute Indian Tribe III , we nevertheless must decide whether to modify ourjudgment in Ute Indian Tribe III in light of the Supreme Court’s inconsistent bound ary determination in Hagen . The question whether to modify our earlier judgm ent raises competing concerns involving the finality of a court’s judgment and the need for uniformity in decisionmaking throughout th e federal court system. In deciding this question, we first discuss whether anappellate court has the power to modify a mandate and the circumstances in which exercise of that power is appropriate. With these circumstances in mind, we next determine whether we are precluded by the principles of collateral estop pel or res judicata from departing from the boundary determination of Ute In dian Tribe III . Finally, after2 Indeed, we have found only one case in which we have departed from a prior

mandate after a final decision because of a later change in law. In Pierce v. Cook & Co. , 518 F.2d 720, 723 (10th Cir. 1975), we permitted relitigation of already settled claims - 22 - concluding that we are not bound by the traditional principles of finality, we directly confront the relative importance of finali ty and uniformity in the context of this case. 1. The Power of an Appellate Court to Modify a Manda te The defendants’ motion to recall the mandate in Ute Indian Tribe III requires us first to ask whether an appellate courtpossesses the authority to recall or modify a mandate after the time for rehearing ha s passed. In this circuit, as in all circuits that have addressed the issue, “an app ellate court has power to set aside at any time a mandate that was procured by fr aud or act to prevent an injustice, or to preserve the integrity of the judi cial process.” Coleman v. Turpen , 827 F.2d 667, 671 (10th Cir. 1987); see also American Iron & Steel Inst. v. EPA , 560 F.2d 589, 593 n.15 (3d Cir. 1977) (listing case s); Greater Boston Television Corp. v. FCC , 463 F.2d 268, 275-80 (D.C. Cir. 1971) (discussing particular grounds for recalling a mandate). Although the rul e is stated in broad terms, the appellate courts have emphasized that the power to recall or modify a mandate is limited and should be exercised only in extraordina ry circumstances. See American Iron & Steel Inst. , 560 F.2d at 594 (emphasizing that recall of a mandate is “an extraordinary remedy, one to be used sparingly”). 2 The limitedwhere plaintiffs with claims under state law were forced to litigate in federal court

because of diversity and received “substantially different treatment than that [later] received in state court by another injured in the same accident.” Id. at 723. Piercewas an “extraordinary case” based on an “unusual combination of events” and is not applicable to the case before us today. Id.

3Section 2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State Court except as expressly authorized by Act of Congress, or - 23 - nature of this power is a reflection of the importa nce of finality: once parties are afforded a full and fair opportunity to litigate, t he controversy must come to an end and courts must be able to clear their dockets of decided cases. As the Third Circuit explained, “[P]arties should be afforded ample opportunity to litigate their claims, but once a final disposition is reached the y should not expect that the good offices of the court will be available for a c hance to press their claims anew.” Id. at 592. Mindful of the important limitations on a n appellate court’s power to disrupt a settled judgment, we next addres s whether we are precluded from modifying the mandate in Ute Indian Tribe III under the principles of collateral estoppel or res judicata .

2. Collateral Estoppel and Res Judicata In seeking permanent injunctive relief against the state and local defendants, the Tribe contends that collateral esto ppel and res judicata preclude the state and local defendants from relying on Hage n . In particular, the Tribe argues that the Court should enjoin the defendants’ enforcement of Hagenunder the relitigation exception to the Anti-Injunction A ct, 28 U.S.C. § 2283, 3 whichwhere necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” - 24 - permits a federal court to enjoin proceedings in st ate court where the party asserting a claim or issue in the state court is ba rred from doing so by res judicata or collateral estoppel. See Chick Kam Choo v. Exxon Corp. , 486 U.S. 140, 150- 51 (1988) (“The relitigation exception was designed to permit a federal court to prevent state litigation of an issue that previousl y was presented to and decided by the federal court. It is founded in the well-recog nized concepts of res judicata and collateral estoppel.”). The Tribe argues that because Ute Indian Tribe III produced a final judgment on the merits (thereby re solving the boundary issue in favor of the Tribe), the doctrine of collateral est oppel binds this court and precludes the defendants from enforcing the contrary holding in Hagen . The Tribe maintains that the Supreme Court’s decision i n Federated Department Stores, Inc. v. Moitie , 452 U.S. 394 (1981), prohibits any departure fromthe settled boundary determination of Ute Indian Tribe III , even where that decision is erroneous in light of a later change in law. We disagree that Federated Department Stores controls the outcome of this case. In Federated Department Stores , 452 U.S. at 398, the Supreme Court rejected an attempt by the Ninth Circuit to craft a n exception to the doctrine of res judicata based on a later change in controlling law. The case involved seven retail purchasers who brought separate actions agai nst the owners of various- 25 -

department stores, alleging that the stores had eng aged in illegal price fixing. Id. at 395-96. After the district court dismissed the actions on the grounds that the plaintiffs had failed to state a claim for relief u nder the applicable statute, five of the plaintiffs appealed the ruling and, ultimately, obtained a reversal by the Supreme Court. Id. at 396. Instead of appealing the district court’s ruling as the other five plaintiffs had done, two plaintiffs refi led their actions in state court, which were removed to federal court. Id. The federal district court held that because the two plaintiffs sought to relitigate the same claim against the same defendants, the actions had to be dismissed under t he doctrine of res judicata. Id. at 396-97. The two plaintiffs appealed to the Ninth Circuit. Id. at 397. While their appeal was pending, the Supreme Court announced that the other plaintiffs had stated a claim for relief. Id. The Ninth Circuit concluded that the two plaintif fs should be allowed to benefit from the Supreme Court ’s decision because their position was closely interwoven with the other five cases. Id. The court stated that because all of the dismissals rested on preced ent that the Supreme Court had since overruled, the doctrine of res judicata must give way to the competing concerns of “public policy” and “simple justice.” Id. at 398. In reversing, the Supreme Court expressly rejected the Ninth Circuit’s “novel exception to the doctrine of res judicata.” Id. The Court explained:- 26 -

[W]e do not see the grave injustice which would be done by the application of accepted principles of res judicata. . . . The doctrine of res judicata serves vital public interests beyond a ny individual judge’s ad hoc determination of the equities of a p articular case. There is simply no principle of law or equity which sanctions the rejection by a federal court of the salutary princi ple of res judicata . . . . This Court has long recognized that [p]ubli c policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and th at matters once tried shall be considered forever settled as between the parties. Id. at 401 (citations and internal quotation marks omi tted). Contrary to the Tribe’s argument, our case is disti nguishable from Federated Department Stores in two important respects. First, in contrast to Federated Department Stores , where the issue was whether a change in law would permit the incipient relitigation of an issue resol ved in a prior suit, the State of Utah in this case has already relitigated the bound ary issue. We are not now deciding whether a party--in this case the State--d eserves a second bite at the apple. The boundary relitigation is over. The Uta h Supreme Court has issued a final ruling, which the United States Supreme Courthas affirmed, resulting in a clearly inconsistent judgment. For this reason, th e Tribe’s reliance on collateral estoppel is misplaced. Second, in deciding whether to modify Ute Indian Tr ibe III , we are not motivated by a desire to achieve a more accurate ju dgment or to avoid the injustice that might result from a strict applicati on of the principles of finality, as was the case in Federated Department Stores . The fact that Ute Indian Tribe III- 27 -

may have been wrongly decided or operates unfairly against the state and local defendants is not a concern that informs our analys is. See 18 C HARLES A. W RIGHT ET AL ., F EDERAL P RACTICE AND P ROCEDURE § 4426, at 265 (1981) (“If relitigation were permitted whenever it might resul t in a more accurate determination, in the name of ‘justice,’ the very v alues served by preclusion would be quickly destroyed.”). Rather, our decisio n is based on the need to reconcile two inconsistent boundary determinations and to provide a uniform allocation of jurisdiction among separate sovereign s. For this reason, Federated Department Store ’s relevance to this case is limited. The question here is not whether the State of Utah should be able to relitig ate the boundary issue (which it has already done), but which decision--Ute Indian T ribe III or Hagen --should control the allocation of jurisdiction among the st ate and local defendants, the Tribe, and the federal government. The State’s suc cessful relitigation of the boundary issue has put the judgment in Ute Indian T ribe III on a collision course with Hagen , and therefore, we must directly confront whether Ute Indian Tribe III should give way to the equally final, contrary judg ment in Hagen . To that inquiry, we now turn.

3. Finality and Uniformity As discussed above, the question whether to modify our judgment in Ute Indian Tribe III raises the competing concerns of finality and unif ormity. Thus,- 28 -

in deciding this question, we must assess the relat ive importance of finality and uniformity in the context of this case. Although we are not bound by collateral estoppel to enforce the boundary determination of Ute Indian Tribe III , departure from this settled judgment implicates the important purposes of finality. Ove r a century ago, the Supreme Court discussed the importance of finality: This general rule is demanded by the very object fo r which civil courts have been established, which is to secure th e peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for the aid of judicial tribunals wou ld not be invoked for the vindication of rights of person and property if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properl y put in issue, and actually determined by them. Southern Pac. Ry. Co. v. United States , 168 U.S. 1, 49 (1897); see also Kremer v. Chem. Constr. Corp. , 456 U.S. 461, 467 n.6 (1982). The Court also has addressed the particular purposes of finality: To preclude parties from contesting matters that th ey have had a full and fair opportunity to litigate protects their adv ersaries from the expense and vexation attending multiple lawsuits, c onserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions. Montana v. United States , 440 U.S. 147, 153-54 (1979). Accordingly, before departing from a settled decision, we must considerwhether such departure might “substantially frustrate [collateral estoppel’s] pu rpose of protecting litigants from- 29 -

burdensome relitigation and of promoting judicial e conomy.” United States v. Stauffer Chem. Co. , 464 U.S. 165, 172 (1984). The Tribe contends that departure from Ute Indian T ribe III would frustrate the important purposes of finality and would upset its reasonable expectations in the continuing validity of a settled judgment. The litigation that led to Ute Indian Tribe III lasted ten years and resulted in a costly victory for the Tribe. It also consumed important judicial resources. Perhaps mos t important from the Tribe’s point of view, the decision in Ute Indian Tribe III purported to define conclusively the respective jurisdictional boundari es of the various governmental authorities operating in and around the Uintah Vall ey Reservation. Indeed, the Tribe continues to rely on Ute Indian Tribe III in exercising civil and non-felony jurisdiction on lands within the original reservati on boundaries. “When a court has determined disestablishment of a given reservat ion in its particular historical and factual setting, prevention of inconsistent adj udication becomes desirable insofar as it fosters reliance on judicial decision making.” White Earth Band of Chippewa Indians v. Alexander , 683 F.2d 1129, 1135 (8th Cir. 1982). The Tribe argues that this reasoning, as well as the other important purposes of finality, support enforcement of the settled judgment of Ute Indian Tribe III

. The same important purposes of finality, however, apply equally to the final judgment in Hagen . Once Hagenbecame final, the State of Utah was entitled to- 30 -

rely on the collateral estoppel effect of that judg ment just as the Tribe was entitled to rely on its judgment in Ute Indian Trib e III . Had the Tribe brought its present request for injunctive relief prior to the conclusion of the state litigation in Hagen , the principle of finality clearly would have favo red the Tribe and might even have required an injunction against the state proceedings. See Parsons Steel, Inc. v. First Ala. Bank , 474 U.S. 518, 524 (1986) (holding that the reliti gation exception to the Anti-Injunction Act does not permi t a federal court to enjoin a state court proceeding “once the state court has fi nally rejected a claim of res judicata”). In this situation, however, where the State has already relitigated the boundary issue, the economy and judicial resource c oncerns that normally operate to preclude a second lawsuit are of little relevanc e. Although the Tribe may have a more forceful reliance interest given the length of time Ute Indian Tribe III has remained in effect, enjoining the state and local d efendants in this situation would do little to further the core purposes of finality. As discussed above, the second litigation has proceeded to a final judgment and ha s already resulted in an inconsistent decision. Moreover, we note that “res judicata and collateral estoppel . . . promote the comity between state and federal courts that ha s been recognized as a bulwark of the federal system.” Allen v. McCurry , 449 U.S. 90, 95-96 (1980). Thus, enjoining the State’s enforcement of Hagenin this situation would “violate basic4 In State v. Hagen , 802 P.2d 745, 747 (Utah Ct. App. 1990), the Utah Court of

Appeals expressly relied on the collateral estoppel effect of Ute Indian Tribe IIIin holding that the state court lacked jurisdiction over the Indian defendants. Nevertheless, the Utah Supreme Court reversed, citing its earlier conclusion in the companion case of State v. Perank, 858 P.2d 927 (Utah 1992), but without further discussion of collateral estoppel. Hagen , 858 P.2d at 925-26. When Hagenreached the Supreme Court, the Court declined to address whether collateral estoppel barred relitigation of the boundary issue. Hagen , 510 U.S. at 409-10. The Court relied on the procedural ground that counsel for the petitioner had failed to raise collateral estoppel in seeking a writ of certiorari . Id. The Court found “no reason to consider an argument that petitioner not only failed to raise but on which he expressly refused to rely in seeking a writ of certiorari .” Id. at 410. Accordingly, the Utah Supreme Court’s ruling that collateral estoppel did not prevent relitigation of the boundary issue remains the settled judgment of that court. - 31 - tenets of comity and federalism.” Kremer , 456 U.S. at 478. By reaching the merits in Hagen , the Utah Supreme Court effectively ruled that the State was not precluded from relitigating the boundary issue. In the absence of a successful challenge to this ruling in the Supreme Court, we m ust give full effect to the state court judgment and may not impose “the highly intru sive remedy of a federalcourt injunction against the enforcement of the state court judgment.” Parsons Steel, Inc. , 474 U.S. at 525. 4 In the situation before us, where the purposes of f inality do not clearly support enforcement of either judgment, we might on the sole basis of our hierarchical system of courts prefer to give effectto the pronouncement of the Supreme Court. In an analogous context, for exampl e, the D.C. Circuit stated that “[w]here, as here, a decision of the Supreme Court- -the preeminent tribunal in our- 32 -

judicial system--departs in some pivotal aspects fr om those of lower federal courts, amendatory action may be in order to bring the pronouncements of the latter courts into line with the views of the forme r.” American Iron & Steel Inst. , 560 F.2d at 596. We do not, however, take such “am endatory action” in this case merely on the basis of the incongruency between ourdecision in Ute Indian Tribe
III and Hagen . Additional factors, including the importance of uniformity, also support our view that Ute Indian Tribe III should be modified in light of Hagen

. Uniformity is an important value in our system of j udicial decisionmaking. While “[c]onflicts in the circuits are generally ac cepted and in some ways even welcomed,” Stauffer Chem. Co. , 464 U.S. at 177 (White, J., concurring), uniform decisionmaking within each circuit is essential. T he related doctrines of collateral estoppel and stare decisis are exactly t he sort of tools that have been designed to ensure uniformity and compliance with b inding precedent. Like collateral estoppel, stare decisis “promotes the ev enhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integri ty of the judicial process.” Payne v. Tennessee , 501 U.S. 808, 827 (1991). Unfortunately, these d octrines have so far failed to prevent the inconsistency between Ute Indian Tribe III and Hagen . Given the important values that underlie these d octrines, we cannot allow such an inconsistency to persist.- 33 -

More importantly, the lack of uniformity between Ut e Indian Tribe III and Hagenpresents a practical dilemma of daily importance. Although the Tribe continues to exercise civil and non-felony criminal jurisdiction on those portions of the Uintah Valley Reservation that were opened t o settlement under the 1902- 1905 allotment legislation, the State of Utah is so lely responsible under Hagenfor bringing felony prosecutions on the same lands. Of ten the difference between state and tribal jurisdiction is a matter of only afew dollars, the amount separating a misdemeanor from a felony in the case of theft, for example. Similar problems arise in determining whether an assault co nstitutes a misdemeanor subject to tribal and federal jurisdiction or wheth er it constitutes a felony subject to state jurisdiction. In this situation, the inte rest of uniformity clearly supports modification of Ute Indian Tribe III and creation of a uniform allocation of jurisdiction. As the Third Circuit stated, “‘[U]ni formity’ in application of principles and in decision-making might constitute a ‘special reason for disturbing [the] repose and finality . . . ’ of an earlier adj udication.” American Iron & Steel Inst. , 560 F.2d at 597 (quoting Greater Boston Televisio n Corp. , 463 F.2d at 278- 79). Although a uniform allocation of jurisdiction would eliminate the existing confusion, we are mindful that “[f]inality must . . . delimit equality in a temporal sense, and we must accept as a fact that the argume nt for uniformity loses force- 34 -

over time.” James B. Beam Distilling Co. , 501 U.S. at 542. As a limit on uniformity, finality is of particular importance wh ere a change in law threatens to disrupt a final tort award or other settled judgmen t based on then-existing legal principles. The need for finality, however, applies with less force to judgments that are not “inherently final” but are rather of “ a continuing nature.” American Iron & Steel Inst. , 560 F.2d at 599. Where a prior erroneous judgmen t necessarily affects continuing conduct, the interests of unifor mity may demand departure from the prior judgment to bring a court’s view of the law into line with the prevailing view. See Federal Labor Relations Auth. v. United States Dep ’t of Treasury , 884 F.2d 1446, 1456 (D.C. Cir. 1989) (concerning federal agencies’ duty to disclose federal employees’ names and addre sses to labor unions); American Iron and Steel , 560 F.2d at 597-99 (concerning application of wat er pollution regulations); Moch v. East Baton Rouge Pa rish School , 548 F.2d 594 (5th Cir. 1977) (concerning apportionment of parishschool board); Christian v. Jemison , 303 F.2d 52, 54-55 (1962) (concerning prohibitionof racial segregation after abandonment of “separate but equal” doctrine) ; 18 W RIGHT ET AL ., § 4415, at 131 (stating that “ordinary . . . preclusion rul es are often strained by continuing conduct”). The character of Ute Indian Tribe III reflects this type of judgment. As the district court noted, the state and local de fendants are not seeking “to unravel the intricate tapestry of individual judgme nts already made final each- 35 -

time a new decision is announced.” Ute Indian Trib e IV , 935 F. Supp. at 1510. Instead, the defendants are seeking to apply Hagen prospectively to the continuing conduct of separate sovereigns and the individuals living in and around the Uintah Valley Reservation. This case does not involve the retroactive application of Hagento events or lawsuits that have occurred in the pa st. To the extent that Hagenthreatens to displace a judgment “on which relianc e may reasonably have been placed,” James B. Beam Distilling Co. , 501 U.S. at 538, today’s decision is limited to prospective application only. See United States v. Cuch , 79 F.3d 987, 995 (10th Cir.) (rejecting the retroactive applicat ion of Hagento vacate a federal criminal conviction on collateral attack), cert. de nied , 117 S. Ct. 384 (1996). The Tribe raises one final argument against modific ation of Ute Indian Tribe III . The Tribe contends that even if Ute Indian Tribe III does not continue to define the current boundaries of the Uintah Vall ey Reservation as between the State of Utah and criminal defendants under Hagen , the decision still should apply to legal relations between the state and local defe ndants and the Tribe. In effect, the Tribe urges us to adopt a dual jurisdictional s ystem. Under such a system, Ute Indian Tribe III would control the allocation of authority among th e named parties to this lawsuit in their dealings with each other, while Hagenwould apply to the state and local defendants’ relationships with all other parties. The Tribe contends that such a dual system is warranted becau se the state and local- 36 -

defendants, as full participants in Ute Indian Trib e III , are directly bound by our en banc decision, while the Tribe, as a nonparty to the litigation in Hagen , is not directly bound by the Supreme Court’s decision. Ac cordingly, the Tribe contends that the state and local defendants may properly as sert jurisdiction over nonIndians within those portions of the original Uintah Valley Reservation that were open to settlement under the 1902-1905 legislation (the Hagen -based jurisdictional overlay). In their dealings with th e Tribe and its members, however, the state and local defendants must recogn ize the authority of the Tribe and the federal government within those same portio ns of the Reservation (the Ute Indian Tribe III -based overlay). We reject the Tribe’s contention that jurisdiction must be allocated among the parties by two inconsistent boundary determinat ions. The task of allocating jurisdiction necessarily involves line-drawing, andin an area where there is a compelling need for uniformity, there must be a sin gle bright line. A dual system would only continue the confusion that has characte rized the relationship between the parties since the issuance of Hagen . Under the Tribe’s approach, for example, jurisdiction would depend not on the geographic loc ale of the crime or event at issue, but on the relationship between the State of Utah and the individual or entity over whom the State seeks to exercise jurisd iction. Rather than creating a stable allocation of jurisdiction where the parties ’ respective jurisdictions can be- 37 -

determined by reference to lines on a map, the Trib e’s approach would introduce enormous uncertainty into an already complicated sy stem. Each time the state and local defendants attempt to assert jurisdiction ove r a new party, whether to collect a tax or enforce a regulation, they would risk havi ng to establish jurisdiction over that party through time-consuming and costly litigation. In addition, we question the propriety of allocating jurisdiction based on t he application of procedural rules (i.e. , collateral estoppel and stare decisis) that were themselves designed to eliminate inconsistency and unpredictability. Furt her, the legal basis for the Tribe’s dual jurisdictional scheme is undermined byour conclusion that the state and local defendants are not directly bound by Ute Indian Tribe III , at least as that decision conflicts with the contrary holding in Hag en . For the reasons articulated above, we conclude thatmodification of our earlier judgment is appropriate, not merely because the two decisions are incongruent, but because of the effect of the incon gruency on the interests of uniformity and the integrity of our system of judic ial decisionmaking. We therefore hold that the judgment in Ute Indian Trib e III should be modified in light of the extraordinary circumstances presented in this case. To dispel any doubts, we emphasize the rarity that should attend the use of this remedy. “Because this Court ordinarily will view motions to recall a mandate with disfavor, the opinion in this matter should not be read as an invitation to litigants- 38 -

to seek review of already adjudicated claims.” Ame rican Iron & Steel Inst. , 560 F.2d at 599. We do not, however, recall Ute Indian Tribe III in its entirety. To the extent that Ute Indian Tribe III decided matters not addressed in Hagen , finality requires those decisions to remain undisturbed. Th us, we modify our earlier judgment only to the extent that it directly confli cts with the holding in Hagen

. We next address the extent to which the two cases a re in direct conflict. III. J URISDICTIONAL B OUNDARIES A FTER H AGEN In determining the parties’ respective jurisdiction al boundaries after Hagen , we begin by identifying the areas where Ute Indian Tribe III and Hagenare not in conflict and can be reconciled. To the extent thatthe boundary determinations made in Ute Indian Tribe III do not directly conflict with Hagen , they remain in effect. In Ute Indian Tribe IV , the 1996 district court opinion, the court fully addressed the areas of genuine conflict between Ute Indian Tribe III and Hagen

. In large part, we need look no further than the dis trict court’s detailed opinion to determine those portions of the original Uintah Val ley Reservation that remain the exclusive province of the Tribe and the federal gov ernment. See Ute Indian Tribe IV , 935 F. Supp. at 1485-1505. In sum, we agree with the district court that Hagendid not effectively overrule the entire judgment i n Ute Indian Tribe III ,5 Because we depart from a mandate of the en banc court and modify the earlier

judgment in this case, we have circulated this opinion to the en banc court pursuant to our rules. Each member of the en banc court has concurred in our holding. - 39 - including our holdings concerning the National Fore st Lands and the Uncompahgre Reservation. Further, we agree that Ha gen ’s only effect was to reduce (and not terminate) the boundaries of the Ui ntah Valley Reservation to the extent that lands within the Reservation were unall otted, opened for settlement under the 1902-1905 legislation, and not thereafterreturned to tribal ownership. Accordingly, we hold that our prior judgment in Ute Indian Tribe III should be, and is now, modified to the extent that lands withi n the original reservation boundaries were unallotted, opened to non-Indian se ttlement under the 1902-1905 legislation, and not thereafter returned to tribal ownership. 5 A. The Uintah Valley Reservation, The Uncompahgre Re servation, and the National Forest Lands In Ute Indian Tribe III , we decided three reservation diminishment issues. First, we concluded that the 1902-1905 allotment le gislation did not have the effect of diminishing or disestablishing the Uintah Valley Reservation. Ute Indian Tribe III , 773 F.2d at 1989. Second, we concluded that the withdrawal of the National Forest Lands did not diminish the Uint ah Valley Reservation. Id. at 1090. Finally, we held that the 1894 and 1897 allo tment legislation did not diminish or disestablish the Uncompahgre Reservatio n. Id. at 1093.- 40 -

Hagendealt only with the first of these three issues. As the district court stated: Hagendetermined “that the Uintah Indian Reservation has been diminished by Congress,” i.e. , that the original boundary of the Uintah Valley Reservation does not currently define the present territorial extent of federal, state and tribal jur isdiction in the Uintah Basin. Ute Indian Tribe IV , 935 F. Supp. at 1484 (citing Hagen , 510 U.S. at 419-21). The district court continued: Hagen[did not] address the Tenth Circuit’s determinatio n in [Ute Indian Tribe III ] that the 1905 national forest withdrawals of approximately 1,010,000 acres of reservation land d id not diminish the Uintah Reservation boundaries. Hagenalso makes no ruling concerning the boundaries of the Uncompahgre Reserv ation, the original extent of which was reaffirmed by the Tent h Circuit. Id. at 1485. Although the state and local defendants admit that Hagendid not address the status of the Uncompahgre Reservation or the National Forest Lands, they assert that we should nevertheless recall our entir e mandate in Ute Indian Tribe
III . The defendants argue that Hageneffectively overruled the fundamental premise upon which the entire holding of Ute Indian Tribe III was based--namely, that statutory restoration language is insufficientto infer diminishment. They point out that in Hagenthe Supreme Court stated that “restoration of unal lotted reservation lands to the public domain evidences a congressional intent with respect to those lands inconsistent with the contin uation of reservation status.”- 41 -

510 U.S. at 414. The state and local defendants ar gue that in light of this statement, Ute Indian Tribe III ’s holding concerning the National Forest Lands and the Uncompahgre Reservation cannot stand becaus e the entire holding was based on a misreading of the same congressional res toration language that was at issue in Hagen

. Assuming that Ute Indian Tribe III ’s holding with respect to the National Forest Lands and the Uncompahgre Reservation was ba sed on a misreading of the applicable legislation, such a misreading alone is not sufficient to justify departing from our earlier judgment. As we stated earlier, our decision to modify Ute Indian Tribe III does not result from the desire to correct a priorerroneous judgment, but rather from the need to reconcile ourdecision with a directly conflicting decision of the Supreme Court. Because Hagendid not directly address our holding in Ute Indian Tribe III as it relates to the National Forest Lands and the Uncompahgre Reservation, we have no r eason to depart from that part of our prior judgment. We thus reject the def endants’ contention that the judgment in Ute Indian Tribe III should be recalled in its entirety. B. Non-Trust Lands Within the Original Boundaries of the Uintah Valley Reservation Because we have concluded that Hagendid not address the status of the National Forest Lands or the Uncompahgre Reservatio n, we must now address the extent to which Hagendirectly conflicts with Ute Indian Tribe III. In particular,- 42 -

we must decide which lands within the Uintah ValleyReservation are no longer Indian country after Hagen . The remaining controversy centers on whether the state and local defendants or the Tribe and the fed eral government have jurisdiction over the various categories of non-tru st (i.e. , fee), lands within the original boundaries of the Uintah Valley Reservatio n, whether held by Indians or non-Indians. Under 18 U.S.C. § 1151, the Tribe and the federal government have civil and criminal jurisdiction over “Indian country.” P ittsburg & Midway Coal Mining Co. v. Watchman , 52 F.3d 1531, 1540-41 (10th Cir. 1995). Indian country includes “all Indian allotments, the Indian titles to which have not been extinguished.” 18 U.S.C. § 1151(c). This category constitutes lands held in trust by the federal government. Indian country also enc ompasses “all land within the limits of any Indian reservation under the jurisdic tion of the United States Government, notwithstanding the issuance of any pat ent, and including rights-of-way running through the reservation.” 18 U.S.C. § 1151(a). Thus, Indian Country also includes all non-trust, or fee, lands so long as such lands are located within the “limits of any Indian reservatio n.” There are four categories of non-trust lands at iss ue in this case: (a) lands that passed from trust to fee status purs uant to non-Indian settlement under the 1902-1905 allotment legislatio n;- 43 -

(b) lands apportioned to the “Mixed Blood” Utes un der the Ute Partition Act, Act of Aug. 27, 1954, Pub. L. No. 97 -698, ch. 1009, 68 Stat. 868 (codified at 25 U.S.C. §§ 677-677aa); (c) lands allotted to individual Indians that have passed into fee status after 1905; and (d) lands that were held in trust after the Reservation was opened in 1905 but that since have been exchanged into fee st atus by the Tribe for then-fee (now trust) lands in an effort to cons olidate its land holdings pursuant to the Indian Reorganization Act, Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified at 25 U.S.C. §§ 461-79) and the Indian Land Consolidation Act of 1983, Pub. L. No. 97-459, 96 Stat. 2517 (codified at 25 U.S.C. §§ 2201-11). See Ute Indian Tribe IV , 935 F. Supp. at 1484, 1486. In Ute Indian Tribe III , we held that the 1902-1905 allotment legislation did n ot have the effect of diminishing or disestablishing the Uintah Valley Re servation. We thus concluded that all of the non-trust lands identified above re mained “Indian country” under § 1151(a) as lands within “the limits of any Indian reservation.” In this case, we must determine the extent to which Hagendirectly conflicts with our earlier conclusion that all of the above categories of non- trust lands remain within Indian country. The parties do not dispute that Hagendirectly conflicts with the first category of non-trust lands, those lands passing infee to non-Indians pursuant to the 1902-1905 allotment legislation. This was prec isely the category of fee lands at issue in Hagen . Accordingly, we modify our mandate in Ute Indian Tribe III and hold in accordance with Hagenthat these lands are no longer within Indian- 44 -

country under section 1151(a) subject to the jurisd iction of the Tribe and the federal government. With respect to the other three categories of non- trust lands, the state and local defendants argue that these lands also are no longer within Indian country after Hagen . They contend that the Supreme Court in Hagen “clearly contemplated that the exterior boundaries of the Re servation would simply be gone.” Appt. Brief, at 44. In other words, the de fendants argue that the Court held that the 1902-1905 legislation completely term inated the Reservation such that no discrete, definable reservation boundaries now exist. Under the defendants’ theory, there are no external boundarie s and thus no “limits of any reservation.” Indian country therefore is confined under § 1151(c) to “Indian allotments . . . which have not been extinguished,” or trust lands. Under the theory that Indian country is limited to trust land s, the defendants argue that the three disputed categories of non-trust lands no lon ger constitute Indian country. We reject the defendants’ argument that Hagen removed all non-trust lands within the original Uintah Valley Reservation from Indian country. In Hagen , the Supreme Court did not decide that the 1902-1905 all otment legislation completely disestablished the Uintah Valley Reservation, erasi ng its outer boundaries and rendering § 1151(a) inapplicable to the three dispu ted categories of non-trust lands. The Court in Hagenstated:- 45 -

[W]e hold that the restoration of unallotted reserv ation lands to the public domain evidences a congressional intent with respect to those lands inconsistent with the continuation of reservation status. Thus, the existence of such language in the operative sec tion of a surplus land Act indicates that the Act diminished the reservation. Hagen , 510 U.S. at 414 (emphasis added). The Court stat ed that the Uintah Valley Reservation had been “diminished” -- not “di sestablished,” “eliminated,” or “terminated.” Moreover, the diminishment was on ly “with respect to those lands” that had been restored to the public domain under the 1902-1905 legislation. See Ute Indian Tribe IV , 935 F. Supp. at 1487-88. We therefore conclude that Hagendid not erase the boundaries of the Uintah Valley Reservation and that the current “limits of [the] r eservation” thus embrace the three categories of non-trust lands at issue. In s um, Hagendoes not conflict with our holding in Ute Indian Tribe III that these categories of non-trust lands remain within Indian country under section 1151(a). We note that this conclusion has the benefit of pro ducing a stable, unchanging allocation of jurisdiction. Under our approach, the Tribe and the federal government retain jurisdiction over all tru st lands, the National Forest Lands, the Uncompahgre Reservation, and the three c ategories of non-trust lands that remain within the boundaries of the Uintah Val ley Reservation. The state and local defendants have jurisdiction over the fee lands removed from the Reservation under the 1902-1905 allotment legislati on. Although a title search6 We decline to address whether any portion of the non-trust lands opened in 1905

might still constitute Indian country under section 1151(b) as a “dependent Indian community” because that question is not properly before the court. The district court may be asked to consider the question upon remand. - 46 - may be necessary to determine which lands were open ed under the 1902-1905 legislation, the parties’ respective jurisdictions will never change once the status of those lands is conclusively determined. By cont rast, under the defendants’ theory (i.e. , that Indian country is limited to trust lands) th e Indian country status of land would change as trust lands are transferred into fee lands. We recognize that while our approach might result in a checkerbo ard allocation of jurisdiction, such a result is more desirable than the defendants ’ approach, which would produce a “moving checkerboard” because lands leavi ng trust status would also lose their status as Indian country. In conclusion, we reject the argument that Indian c ountry is confined to lands held in trust by the federal government under§ 1151(c). Rather, Indian country extends to all trust lands, the National Fo rest Lands, the Uncompahgre Reservation, and the three disputed categories of n on-trust lands discussed above. 6
CONCLUSION For the foregoing reasons, we DENY the defendants’ motion to recall our mandate in Ute Indian Tribe III , 773 F.2d 1087 (10th Cir. 1985) (en banc), cert.- 47 -

denied , 479 U.S. 994 (1986). Rather, we MODIFY our mandate in Ute Indian Tribe III as set out above and REMAND with instruction that the district court consider the Tribe’s request for permanent injuncti ve relief in light of this opinion.