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
A. KIMBALL JUDGE
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.
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.
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. 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.
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'
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.
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.
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
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.
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
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.
Motion to Dismiss
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. 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 ...