State and tribal laws collide on branding and fencing

Dec 23, 2011
State and tribal laws collide on branding and fencing

The U.S. and American Indian tribes have built a relationship based on sovereignty, but in turn, it has created some conflicting laws which are causing ranchers, such as Cory Vetere, to wonder if “cattle rustling” has a new legal twist.

Sovereignty, an internationally-recognized concept, basically giving the power to a group of people to govern themselves, has dictated specific treaties between the federal government and the tribes.

In these sovereign nations, only Congress has overriding power over Indian affairs, and state law is generally not permitted within reservations. On the flip side, tribal members have to abide by state laws when they are not on the reservation.

According to Vetere, the growing battle between state and tribal law has cost him at least 31 head of cattle this year alone, with the most recent involving both fence and brand issues.

Vetere leases Bureau of Land Management (BLM) property to graze his cattle in Utah’s Grand County, which is considered a “fence out” county, and a portion of the property borders unfenced tribal land. But according to Brent Pace, investigator with Utah’s Grand County Sheriff’s Department, this fence law has problems. “It’s a gray area,” he said.

In addition, fencing hundreds of acres of forest is not feasible, whether it’s a fence out or free range state or county. “People ask me why I don’t just put up a fence. If it were that simple, I would have done it a long time ago,” Vetere said.

“We’re dealing with public lands; it could cost upward of millions of dollars to fence it,” said Kyle Stephens, deputy commissioner, Utah Department of Agriculture.

Utah, like other states, also has specific state laws relating to estrays and livestock trespassing. An estray is specifically referred to as an unbranded animal. Utah’s agricultural code says, “Each county is responsible for the disposition of all estrays found within its boundaries.”

In addition, Utah law reads, “Any person, other than an official of the county or of an animal control office under contract with the county, who finds an estray shall report such fact to the county or animal control office immediately. The county or the animal control office upon receipt of notification shall either take possession of the estray or, if deemed appropriate, authorize the person in possession of the estray to maintain and care for it pending determination and location of its owner.”

Sovereign rights allow tribes to make their own fencing laws relating to estrays and trespassing animals on the reservations.

While the reservation written fencing laws are not as clear, they hint at following more of an “open range” law, allowing for little to no trespassing of agriculture, with the burden of the fencing falling on the owner of the animals.

In Utah, tribal ordinance says the “tribal brand inspector is authorized to round up, transport, impound and care for all livestock found trespassing on tribal land.”

The ordinance, emailed to Western Livestock Journal from attorney Frances C. Bassett, Fredericks Peebles & Morgan, LLP, says once animals are impounded by a reservation, the owner is required to pay specific fees before the tribe will release them. The ordinance lists the fees, including all costs of removal, such as transportation costs, salaries, and overhead; a trespass and impoundment penalty of $6 per head per day, the cost of feed, water and care including vet costs; all costs incurred for notice and publication; and all costs for damages to tribal property. In Vetere’s situation, the tribe wanted over $50,000 for his 18 cow/calf pairs they found trespassing on tribal land. According to Vetere, the hand written itemized list he received from the tribe included a set of truck tires.

According to Stephens, Vetere could have fought the charges and costs in tribal court if he chose.

“You can call into question the efficacy of the amount of money they wanted, but he could have gone through their system,” Stephens said.

With the tribal sovereignty, there is no way to get the case heard in state court and Vetere and his legal council, Karen Budd, believe tribal court would have ended up costing him more. “Litigating in tribal court is a no win,” Budd said.

Most ranchers live by the age-old, tried and true basic fence out laws, with a little common courtesy added in. If someone’s cattle happen to find their way on the wrong side, a simple “come get your cows” phone call is usually the norm.

But Vetere has learned the hard way that the tribal ordinance doesn’t work this way.

The ordinance requires the tribe to publish in a newspaper within the area, and various other locations, the information on the strays. After tribe members collected Vetere’s cattle on their property, this notice was posted in the local paper:

The Ute Indian Tribal Brand Inspector hereby issues the following public notice on this 26th day of September, 2011, pursuant to Article VII of the Ute Indian Tribe’s Ordinance to Control Livestock Trespass on Tribal Land, Ord. No. 93- 05 regarding over thirty head of cattle that were located and found to be in trespass on tribal lands.

1. The owner of the livestock is believed to be John Corey Vetere 2. The trespassing livestock were found in the Oak Springs/Hill Creek Extension (Southern Portion) of the Uintah and Ouray Reservation.

3. Thirty-one mixed black/ red angus and bremer-cross cattle (including 14 unbranded calves) were found in trespass, demarked with a “BAR-J” brand on the left hip of the cattle.

4. The cattle were in tres pass

from August 4, 2010 until September 11, 2011, and were impounded on September 11, 2011.

5. The owner of the cattle, upon proof of ownership may redeem the trespassing livestock upon payment of accrued costs and expenses within twenty-one (w21) days after service of this notice.

6. If there is no redemption within the time period provided, the Tribal Brand Inspector may sell or otherwise dispose of the trespassing livestock.

7. The owner of the livestock may obtain further information concerning the release of the impounded livestock by contacting the Ute Indian Tribal Brand Inspector, Ridley Eagle Chief at (435) 722-5141.

Published in the Uintah Basin Standard October 4 and 11, 2011.

While the tribal ordinance seems simple and straight forward enough, it is missing a key piece. “The problem is they don’t address the county fence out issue in the ordinance,” Pace said.

While the fencing and trespassing conflicts of reservation vs state land are complicated, the branding laws add another dimension to the growing animosity.

State branding laws are very specific, and Utah’s is no exception. Utah brand law states that no livestock sales are allowed without a certificate of brand inspection issued by a department brand inspector. Under the law, the Livestock Brand Board is defined, without any mention of a tribal brand inspector.

In addition, strong wording such as, “a person may not transport any cattle or calves from a point within a brand inspection district to a point outside the district,” and “no person may transport [livestock] without having an official state brand certificate” is found throughout the law.

More specifically, the law requires all livestock sold at sale barns to be brand inspected by the department.

According to the Utah brand law, “Upon notice from the department that a question exists concerning the ownership of consigned livestock, the operator of the livestock market or meat packing plant shall withhold the proceeds from the sale of the livestock for 60 days to allow the consignor of the questioned livestock to establish ownership.”

In addition, Utah law states that it is illegal to brand or mark any livestock with a brand or mark without recording it with the brand registry.

But, once the cattle end up on a reservation, the state brand laws are null and void, and reservation law is applied. According to Vetere, his cattle were rebranded with a tribal brand, and several have been resold at a sale barn outside of the reservation, sold under the tribal brand inspection.

“Utah law says every cow sold will have a Utah brand inspection, but they have been using tribal brand inspection to sell,” Pace said.

Stephens confirmed that the cattle did in fact become property of the Ute tribe after 42 days, and were sold with the tribal brand inspection, and then some were

resold outside of the reservation. “One of those individuals then took some of the cattle to the auction,” he said. “There really weren’t any laws broken,” he added.

But Vetere and Pace disagree.

“It would seem like once my cattle left the reservation, they should have been sold under state law,” Vetere said.

“Once they are off the reservation, it seems like it should be a case of stolen property,” Pace said.

“If a tribal brand inspection is indeed legal, then all of the cattlemen in Idaho, Utah and Colorado better be very concerned. This act has just given the tribe the right to steal,” Vetere’s neighbor, Mark Hill said.

Vetere’s family has been in the cattle business for 52 years, with grazing permits on BLM and state forest lands bordering the reservation the entire time. According to Vetere, his BLM permits allow for 220 head, but he is running only 70 to 80.

In addition to the fencing and branding problems, Vetere has had 10 cows shot since 2001.

Vetere said he has lost a total of 41 cows to the conflicts, and still has nine unaccounted for, despite following the state rules. “Cory’s done everything right,” Pace added.

One thing that seems apparent is that this problem has the potential to grow. “Without any clear-cut lines, it’s going to continue to be a problem,” Pace said.

But Stephens said Vetere should have filed a claim. “You have to follow the process,” Stephens said.

While Vetere’s case is disturbing from a rancher’s perspective, it is not a oneway street.

There are similar published cases where reservation cattle were stolen. For example, in January 2010 in California, a man was arrested after stealing five cows, a bull and three calves from the Morongo Reservation. Forty-seven-year-old Steven Seick of Cherry Valley attempted to sell the stolen cattle through an auction house in Ontario. Seick tried to conceal the cattle’s origin by altering their brands.

And another case in 2002 in New Mexico, somewhat similar to Veteres, involving felony cattle-rustling charges against Navajo Nation Council Delegate J.C. Begay, was dropped because the case was out of state jurisdiction. The criminal complaint was filed by the state livestock inspector but because the alleged crime happened on reservation land, the state could not continue the investigation. There was no evidence that the cattle were taken off the reservation and sold. If they had been, it would have made it a state case, according to the New Mexico livestock inspector.

With the two contrasting laws, it appears Vetere may be out of luck when it comes to recouping his losses, and there appears to be no solution, at least not in the near future, for eliminating the growing conflicts. So the question remains; are the conflicting laws opening opportunities for new, improved cattle rustling opportunities? — Traci Eatherton, WLJ Editor