APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:95-CV-0376-DB).
The opinion of the court was delivered by: Briscoe, Circuit Judge.
Before HENRY, Chief Circuit Judge, BRISCOE, and LUCERO, Circuit Judges.
Plaintiff Ute Distribution Corporation (UDC) appeals from a decision of the district court denying UDC's claim for a declaration that the Secretary's implementation of the 1954 Ute Partition and Termination Act, 25 U.S.C. §§ 677 et seq., did not provide for an equitable and practicable division and distribution of water rights between the "mixed-blood" and "full-blood" members of the Ute Indian Tribe, and that, consequently, such rights are currently held in trust by the Secretary for the mixed-blood members.*fn1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that UDC's action was untimely filed. Accordingly, we affirm the district court's dismissal of UDC's claim and remand only so that the district court may amend its judgment to reflect this as the basis for the judgment.
Between 1953 and the mid-1960's, a period commonly referred to as the "termination era," Congress "endeavored to terminate [the federal government's] supervisory responsibilities for Indian tribes." South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 503 (1986). Consistent with that policy, on August 27, 1954, Congress enacted the Ute Partition and Termination Act (UPA), 25 U.S.C. §§ 677 et seq. The express purpose of the UPA was "to provide for the partition and distribution of the assets of the Ute Indian Tribe [(Tribe)] of the Uintah and Ouray Reservation [(Reservation)] in Utah between the mixed-blood and full-blood members thereof; for the termination of Federal supervision over the trust, and restricted property, of the mixed-blood members of said tribe; and for a development program for the full-blood members thereof, to assist them in preparing for termination of Federal supervision over their property." 25 U.S.C. § 677. At the time of the UPA's enactment, the Tribe owned "cash, accounts receivable, and land" estimated to be worth $20,702,885, as well as "additional assets consisting of oil, gas, and mineral rights (principally oil shale deposits underlying the reservation), and unadjudicated and unliquidated claims against the United States." Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 134 (1972).
Implementation of the UPA began with the preparation and submission, by the Tribe, of "roll[s] of [its] full-blood" and "mixed-blood members . . . [that were] living on August 27, 1954." 25 U.S.C. § 677g. Those membership rolls were finalized and published on April 5, 1956. 21 Fed. Reg. 2208-20 (Apr. 5, 1956). "The rolls listed 490 mixed-bloods and 1,314 full-bloods, a total of 1,804. The ratio was 27.16186% mixed-bloods and 72.83314% full-bloods." Affiliated Ute Citizens, 406 U.S. at 135 n.5. The UPA provided that, "[e]ffective on the date of publication of the[se] final rolls," membership in the Tribe "consist[ed] exclusively of full-blood members," and "[m]ixed-blood members" were deemed to "have no interest [in the Tribe] except as otherwise provided" in the UPA. 25 U.S.C. § 677d.
The next step in the implementation of the UPA was the "division of the assets of the [T]ribe that [we]re then susceptible to equitable and practicable distribution." 25 U.S.C. § 677i.*fn2 This step was to be carried out by "[t]he [T]ribal [B]usiness [C]committee representing the full-blood group, and the authorized representatives of the mixed-blood group . . . ." Id. Pursuant to authority granted by the UPA, the mixed-bloods created an unincorporated association, Affiliated Ute Citizens of the State of Utah (AUC), to act as their authorized representative. 25 U.S.C. § 677e; App. at 130. In October 1956, the AUC and the Tribal Business Committee agreed upon a "Plan for Division of Assets" (Plan for Division). App. at 127-141.
Section X of the Plan for Division, entitled "Land," provided for the division of the Tribe's land. Id. at 133-135. It identified five categories of land (i.e., "Land Unsatisfactory for Division," "Assigned Lands," "Range Lands," "Timber Land," and "Other Lands") and made specific provision for each. Subsection F thereof, entitled "Water Rights," provided as follows:
All water and water rights pertinent to the lands involved or generally used in connection therewith whether represented by shares of stock in a corporation or otherwise and all potential water rights that may subsequently attach to the lands to be divided shall be considered in arriving at the fair value of the lands divided and shall be considered as running with the lands.
Id. at 135 (emphasis in original).
In November 1956, the Secretary, through the Acting Commissioner of the Bureau of Indian Affairs, approved, with minor changes, the Plan for Division. Id. at 142-44. In doing so, the Secretary made the following recommendation to the Tribal Business Committee and the AUC's Board of Directors:
[W]e recommend to you, in fact urge you, to give serious consideration to the obtaining of unimpeachable qualified independent advice in the matter of review of proposed plans for division of the lands falling within [the "Other Lands"] classification, and such similar review as you may deem advisable covering your entire real estate partition.
Id. at 143. In late 1957 and early 1958, the Tribal Business Committee, AUC's Board of Directors, and AUC membership adopted resolutions approving the Plan of Division. Id. at 1162-1179. The resolutions adopted by the AUC board and membership confirmed that the division of assets outlined in the Plan of Division was "satisfactory, equitable, practicable and based upon the relative number of persons comprising the final membership roll of each group." Id. at 1169, 1174-75. On March 24, 1958, the Commissioner of Indian Affairs, acting on behalf of the Secretary, approved ...