State allowed to prosecute man
Judge's ruling says he is not a member of a recognized 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 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.
Recent comments
So he needs a "significant degree of Indian blood" and...
TVA | April 30, 2008 at 8:53 a.m.
