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Chegup v. UTE Indian Tribal Court of Uintah and Ouray Reservation

United States District Court, D. Utah

December 3, 2019

ANGELITA M. CHEGUP, TARA J. AMBOH, MARY CAROL JENKINS, and LYNDA M. KOZLOWICZ, Plaintiffs,
v.
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

          DALE A. KIMBALL JUDGE

         This matter is before the court on Defendants Ute Indian Tribe of the Uintah and Ouray Reservation, 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's Motions to Dismiss [ECF Nos. 45, 62, 67, and 68] Plaintiffs Angelita Chegup, Tara Amboh, Mary Carol Jenkins, and Lynda Kozlowicz's Civil Rights Complaint and Petition for Writ of Habeas Corpus, and Plaintiffs' Motion for Immediate Release [ECF No. 20].[1] The court held a hearing on the motions on November 12, 2019. At the hearing, Defendants were represented by J. Preston Stieff, and Plaintiffs were represented by Ryan D. Dreveskracht and Kent A. Higgins. The court took the matters under advisement. The court considered carefully the memoranda and other materials submitted by the parties, as well as the law and facts relating to the motions. Now being fully advised, the court issues the following Memorandum Decision and Order.

         BACKGROUND

         Plaintiffs are enrolled members of the Ute Indian Tribe of the Uintah and Ouray Reservation (the “Tribe”), which is a federally recognized Indian tribe in the State of Utah. Defendants Luke Duncan, Tony Small, Shaun Chapoose, Edred Secakuku, Ronald Wopsock, and Sal Wopsock are members of the Tribal Business Committee for the Ute Indian Tribe of the Uintah and Ouray Reservation (the “Business Committee”), the governing body of the Tribe. In 2018, the Tribe filed a lawsuit in federal court in the District of Columbia wherein it alleged that the United States was violating federal law by treating certain reservation lands as though they were owned by the United States outright, rather than in trust for the Tribe.[2] The Tribe claimed that, as a result, the United States has been wrongfully appropriating revenue relating to the sale or lease of lands within the Uintah and Ouray Reservation (the “Reservation”). The Tribe also averred that Bureau of Land Management employees have been continuously trespassing upon Reservation lands to the extent that such employees have entered Reservation lands without the Tribe's authorization. Accordingly, the Tribe sought injunctive relief along with an order quieting title in the name of the United States.

         After the Tribe filed the lawsuit, Plaintiffs filed a motion to intervene. Specifically, Plaintiffs argued that the subject land should be preserved for the Uintah Band of Ute Indians, not the Tribe. The Tribe opposed Plaintiffs' request to intervene, and the court eventually denied Plaintiffs' motion.

         In October 2018, the Business Committee received a complaint from seventy members of the Tribe wherein Tribe members requested the banishment of Plaintiffs based on alleged acts arising from Plaintiffs' attempted intervention into the Tribe's case that seriously threatened the peace, health, safety, morals and general welfare of the Tribe. More specifically, the complaint alleged that Plaintiffs had (1) repeatedly interfered in the Tribe's ongoing litigation; (2) caused repeated delays and confusion in cases impacting the well-being of the Tribe; (3) engaged in vexatious litigation with the purpose of delaying legal proceedings and confusing legal issues; (4) sought to destabilize the tribal government and waste its resources; and (5) cost the Tribe millions of dollars in unnecessary legal fees by imprudently intervening into cases involving the Tribe.

         Based on the allegations in the complaint, the following month, the Business Committee issued Resolution No. 18-472, which began the process of banishing Plaintiffs. The Resolution was unanimous and signed by each member of the Business Committee. In addition to initiating the banishment process, it mandated that the complaint and a notice of hearing be served on Plaintiffs. In due time, the Business Committee issued a notice of hearing to each Plaintiff and set a hearing to take place in one week at the Business Committee Chambers. The notice provided that Plaintiffs could appear with counsel and present evidence on their own behalf. Importantly, the hearing was meant for the Business Committee to ultimately decide whether Plaintiffs should be banished from the Reservation.

         In preparing for the hearing, Plaintiff Tara Amboh attempted to file document requests with the Tribal Secretary seeking any evidence that would be used against her as well as any policy that would be implemented at the hearing. The Tribal Court Clerk, however, only served Amboh with the papers regarding the hearing, and refused to acknowledge any other document request.

         Plaintiffs obtained counsel on the day of the hearing, but given the short time period between receiving the notice and the date of the hearing, their attorney was unable to appear in person. Accordingly, on behalf of all Plaintiffs, Amboh wrote to the Business Committee and suggested allowing their counsel to appear telephonically. When Plaintiffs were later called into the Business Committee Chambers for the hearing, the Business Committee informed them that they would not allow Plaintiffs' attorney to appear telephonically because Tribal guidelines did not allow for telephonic participation, and they had given Plaintiffs reasonable time to provide for an attorney's attendance. Upon learning this information, Plaintiffs left the hearing before it began. Nevertheless, the Business Committee proceeded with the hearing and passed a motion to banish Plaintiffs pursuant to Tribal Ordinance No. 14-004.

         Following the hearing, the Business Committee promptly issued an Order of Banishment to each Plaintiff. The Orders provided that (1) Plaintiffs were temporarily excluded, banished, and ordered subject to removal from the Reservation for a period of five years; (2) Plaintiffs had caused the Tribe financial losses in the amount of $242, 982.93 and were therefore fined in that amount; (3) Plaintiffs' dividends and bonuses would be garnished at a rate of up to 100% until the fine was paid in full; (4) Plaintiffs' rights to tribal employment and housing were revoked during the term of their banishment; (5) Plaintiffs could only enter the Reservation for a limited number of purposes; and (6) based on those limitations, Plaintiffs would be required to provide the Business Committee with fourteen days' written notice of their intent to visit the Reservation and the purpose for the visit.

         Because Plaintiffs were unaware of any type of appellate review process to challenge the Business Committee's decision to banish them, they filed the instant suit in this court on April 29, 2019 and asserted two claims for relief. First, Plaintiffs contend that Defendants violated their rights under the Due Process Clause of the Indian Civil Rights Act of 1968 (“ICRA”) (25 U.S.C. §§ 1302(8)). Second, they aver that Defendants violated their right to be informed of charges and confront witnesses under ICRA (25 U.S.C. § 1302(6)). In sum, Plaintiffs claim that their liberty has been severely restrained by Defendants' actions. Plaintiffs contend that they have been stripped of their homes, employment, retirement plans, health insurance, and healthcare and precluded from participating in tribal ceremonies and cultural events. Given the severity of the alleged restraints on Plaintiffs' rights, Plaintiffs filed a Motion for Immediate Release in which they ask the court to issue an order reinstating their rights pending the resolution of their complaint.

         DISCUSSION

         A. Motion to Dismiss

         Defendants now move to dismiss Plaintiffs' complaint and petition for, among other reasons, lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.[3] Subject-matter jurisdiction is a court's “statutory or constitutional power to adjudicate [a] case.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). At the federal level, district courts have limited subject-matter jurisdiction and “may only hear cases when empowered to do so by the Constitution and by act of Congress.” Id. at 1125. “The objection that a federal court lacks subject-matter jurisdiction may be raised by a party . . . at any stage in the litigation.” Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (citation omitted). Once a court's subject-matter jurisdiction is called into question, the party asserting jurisdiction bears the burden of establishing it by a preponderance of the evidence. Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994). If, at any time, a “court determines . . . that it lacks subject-matter jurisdiction, the court must dismiss ...


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