United States District Court, D. Utah
ANGELITA M. CHEGUP, TARA J. AMBOH, MARY CAROL JENKINS, and LYNDA M. KOZLOWICZ, Plaintiffs,
UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, a federally recognized Indian tribe; THE TRIBAL BUSINESS COMMITTEE FOR THE UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION; LUKE DUNCAN; TONY SMALL; SHAUN CHAPOOSE; EDRED SECAKUKU; RONALD WOPSOCK; AND SAL WOPSOCK, Defendants.
MEMORANDUM DECISION AND ORDER
KIMBALL, United States District Judge.
matter is before the court on Edson Gardner's
(“Gardner”) Motion for Leave to File Amicus
Curiae and to Intervene on Ute Tribe's Sovereign
Immunity. Because the court concludes that oral argument
would not significantly aid in its determination of the
motion, it issues the following Memorandum Decision and Order
based on the memorandum submitted by Gardner and the law and
facts relevant to the motion
case arises from an Order of Banishment from the Uintah and
Ouray Reservation (the “Reservation”) issued by
Defendants against Plaintiffs, who are members of the Ute
Indian Tribe (the “Tribe”). In response to their
banishment, Plaintiffs filed a complaint and petition for
writ of habeas corpus. In their complaint, Plaintiffs contend
that Defendants violated their (1) rights under the Due
Process Clause of the Indian Civil Rights Act of 1968
(“ICRA”) (25 U.S.C. §§ 1302(8)); and
(2) right to be informed of charges and confront witnesses
under ICRA (25 U.S.C. § 1302(6)). In short, Plaintiffs
claim that their liberty has been severely restrained by
being banished from the Reservation.
another member of the Tribe, now seeks to intervene on behalf
of the Tribe under Rule 24 of the Federal Rules of Civil
Procedure and submit an amicus curiae brief pursuant to Rule
20 of the Federal Rules of Appellate Procedure.
Motion to Intervene
Rule 24 of the Federal Rules of Civil Procedure, there are
two types of intervention: intervention as a matter of right
and permissive intervention. Fed.R.Civ.P. 24(a)- (b).
Regarding interventions of right, a “court must permit
anyone to intervene who: (1) is given an unconditional right
to intervene by a federal statute; or (2) claims an interest
relating to the property or transaction that is the subject
of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing
parties adequately represent that interest.”
Fed.R.Civ.P. 24(a). The Tenth Circuit has opined that an
“applicant may intervene as of right if: (1) the
application is timely; (2) the applicant claims an interest
relating to the property or transaction which is the subject
of the action; (3) the applicant's interest may as a
practical matter be impair[ed] or impede[d]; and (4) the
applicant's interest is [not] adequately represented by
existing parties.” Utah Ass'n of Ctys. v.
Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001) (quotation
marks omitted) (alterations in original).
case, Gardner contends that he is entitled to intervene as a
matter of right due to his substantial interest in protecting
the sovereignty of the Reservation. Under the third and
fourth factors above, however, the court concludes that
Gardner is not entitled to intervene. First, it is difficult
to see how Gardner's interests would be impaired or
impeded by this lawsuit. Gardner has not been banished, he is
not a member of the Tribal Business Committee, and he appears
to bear no relationship to this case other than simply being
a member of the Tribe. Second, Gardner's interests are
being adequately represented by Defendants. Indeed, in
Defendants' motion to dismiss Plaintiffs' complaint,
they assert that the Tribe is protected by the doctrine of
sovereign immunity. Thus, like Gardner, Defendants have a
substantial interest in the Tribe's sovereignty, and they
have articulated that interest in their motion to dismiss.
Consequently, Gardner has not established that he is entitled
to intervene as a matter of right.
permissive interventions, a court may allow an individual to
intervene who: “(A) is given a conditional right to
intervene by a federal statute; or (B) has a claim or defense
that shares with the main action a common question of law or
fact.” Fed.R.Civ.P. 24(b). Importantly, for permissive
interventions, courts “must consider whether the
intervention will unduly delay or prejudice the adjudication
of the original parties' rights.” Fed.R.Civ.P.
Gardner has failed to persuade the court that he should be
permitted to intervene. As stated above, Gardner has very
little to do with this case other than the fact that it
involves the Tribe. The court is satisfied that his interests
in this case, as minimal as they may be, are being adequately
represented by Defendants. Furthermore, allowing Gardner to
intervene would unduly delay the adjudication of the original
parties' rights given that the court has already taken
the parties' pending motions to dismiss and motion for
immediate release under advisement. Accordingly, the court
will not permit Gardner to Intervene.
the court concludes that Gardner should not be allowed to
intervene, whether by right or permission of the court,
Gardner's request to intervene is denied.
Motion for Leave to File Amicus Curiae Brief
Rule of Appellate Procedure 29 provides that an “amicus
curiae may file a brief only by leave of court.” Fed.
R. App. P. 29(a)(2). While the court has concluded that it
will not permit Gardner to intervene, the court finds no
issue with allowing him to submit an amicus curiae ...