Chegup v. UTE Indian Tribe of the Uintah & Ouray Reservation

• Decision Date: 18 March 2022
• Docket Number: Nos. 19-4178 & 20-4015,s. 19-4178 & 20-4015
• Citation: 28 F.4th 1051
• Parties: Angelita M. CHEGUP; Tara J. Amboh; Mary Carol Jenkins; Lynda M. Kozlowicz, Plaintiffs - Appellants, 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 - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

28 F.4th 1051

Angelita M. CHEGUP; Tara J. Amboh; Mary Carol Jenkins; Lynda M. Kozlowicz, Plaintiffs - Appellants,

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 - Appellees.

Nos. 19-4178 & 20-4015

United States Court of Appeals, Tenth Circuit.

FILED March 18, 2022

Ryan Dreveskracht, Galanda Broadman PLLC, Seattle, Washington (Anthony S. Broadman, Galanda Broadman PLLC, Seattle, Washington, with him on the briefs), for Appellants.

J. Preston Stieff, J. Preston Stieff Law Offices, LLC, Salt Lake City, Utah, for Appellees.

Before HARTZ, Circuit Judge, LUCERO, Senior Circuit Judge, and EID, Circuit Judge.

EID, Circuit Judge.

The Ute Indian Tribe of the Uintah and Ouray Reservation ("the Tribe") temporarily banished Angelita M. Chegup, Tara J. Amboh, Mary Carol Jenkins, and Lynda M. Kozlowicz ("the banished members"). The banished members did not challenge their temporary banishment in a tribal forum, but instead sought relief in federal court by filing a petition for habeas corpus. The banished members contended that, because they were excluded from the reservation by virtue of their banishment, they were "detained" within the meaning of the Indian Civil Rights Act of 1968 ("ICRA"). The district court disagreed and dismissed the suit without considering the Tribe's alternative position: that the court could not consider the claims at all because the banished members failed to exhaust their tribal remedies. On appeal, we do not consider the substantive question whether tribal banishment is detention for purposes of habeas. Indeed, we think the district court should not have considered that question either. Respect for tribal sovereignty required that, before the court below decided this complex and difficult question about the scope of ICRA habeas, the banished members must have either exhausted their tribal remedies or met the heavy burden of demonstrating why they had not. Even though tribal exhaustion is non-jurisdictional, and courts may often choose between threshold grounds for denying relief, we think that under the unique circumstances of this case there was a right choice. Because the district court neither began its analysis with tribal exhaustion nor reached that issue in the alternative, we remand for it to be decided in the first instance. We also reverse the district court's denial of the banished members’ motion for costs.

I.

a.

In 2018, the Ute Indian Tribe of the Uintah and Ouray Reservation, a federally recognized Indian tribe, initiated a lawsuit against the United States and certain federal officials in the United States District Court for the District of Columbia ("DDC"). See Ute Indian Tribe of the Uintah & Ouray Indian Rsrv. v. United States , No. 1:18-cv-00546-CJN (D.D.C. filed Mar. 8, 2018).¹ According to the banished members, the Tribe "alleged in part[ ] that the United States violated (and continues to violate) federal law by treating Uncompahgre Reservation lands as though they are owned by the United States outright, rather than in trust for the Tribe." App'x Vol. I at 20.² Further, the Tribe maintained that, as a result of that violation, "the United States has been wrongfully appropriating revenue relating to the sale or leasing of lands within the Reservation"—revenue "claimed to be in the hundreds of millions of dollars." Id. As relief for these allegedly wrongful actions, the Tribe sought, among other things: "(1) an injunction prohibiting the United States from treating lands within the Reservation as though they are owned by the United States outright; [and] (2) an order quieting title in the name of the United States in trust for the Tribe." Id.

Three of the banished members—individual Indians who are members of the Ute Indian Tribe—sought to intervene in the Tribe's suit, proceeding pro se. Jenkins and Amboh, along with two others not party to this suit, filed a motion in which they purported to represent the "Uinta Utah Band, Utah." Uinta Indians Mot. to Intervene at 1, Ute Indian Tribe , No. 1:18-cv-00546-CJN (Mar. 22, 2018), ECF No. 11. Jenkins and Amboh appear to have asserted before the DDC that (1) the "Uinta Indians" is an existing tribe that is distinct from the Ute Indian Tribe and (2) the "Uinta Indians"—not the Ute Indian Tribe—is the entity that can lay proper claim to the "sovereign interest and ownership to the ... lands at issue in [the] Ute Indian Tribe's [DDC] complaint." Id. at 2; see also Intervenor Uinta Valley Reply at 2–3, Ute Indian Tribe , No. 1:18-cv-00546-CJN (Apr. 20, 2018), ECF No. 15.

A little over a week later, Kozlowicz—joined by three additional people not parties to this suit—filed a pro se motion to intervene in which she purported to represent the "Tabequache/Uncompahgre Indians." Tabequache/Uncompahgre Mot. to Intervene at 1, Ute Indian Tribe , No. 1:18-cv-00546-CJN (Apr. 2, 2018), ECF No. 12. It seems the "Tabequache/Uncompahgre" intervenors maintained, similar to the previous motion, that (1) the "Tabequache/Uncompahgre Indians" is an existing tribe that is distinct from the Ute Indian Tribe and (2) the Ute Indian Tribe's suit is "interfer[ing] with" the Tabequache/Uncompahgre Indians’ "protected federal sovereign rights" under the "Tabequache 1863-1868 Treaty." Tabequache Grp. Reply on Mot. to Intervene & Mot. for Prelim. Inj. at 3, Ute Indian Tribe , No. 1:18-cv-00546-CJN (Apr. 23, 2018), ECF No. 16. While their motion to intervene was pending, the Tabequache/Uncompahgre intervenors sought a preliminary injunction against the Ute Indian Tribe.³

The Ute Indian Tribe opposed the motions to intervene and the motion for a preliminary injunction. Ultimately, the tribe prevailed against the putative intervenors. The district court denied all three motions because it determined that "federal courts have refused to allow non-attorneys to represent Indian tribes that are not federally recognized." Order at 1–2, Ute Indian Tribe , No. 1:18-cv-00546-CJN (Aug. 22, 2018), ECF No. 24; see also Order at 2, Ute Indian Tribe , No. 1:18-cv-00546-CJN (Aug. 24, 2018), ECF No. 26.

b.

The DDC litigation was not the first time that the banished members had attempted to intervene in litigation involving the Tribe.⁴ It proved, though, to be the last the Tribe would tolerate. On October 30, 2018, the Tribal Business Committee for the Ute Indian Tribe ("Business Committee")—a board that serves as "a governmental body of the Tribe"—"received a complaint from 70 members of the Ute Indian Tribe ... requesting the banishment of [the banished members], based on alleged engagement in acts which seriously threaten[ed] the peace, health, safety, morals and general welfare of the [Tribe]." App'x Vol. I at 19, 21 (omission in original).⁵ Specifically, the complaint alleged that the banished members: (1) "[r]epeatedly interfered in ongoing litigation involving the Tribe"; (2) "[c]ause[d] repeated delays and confusion in cases which impact the future well-being of the Tribe and its membership"; (3) "engaged in vexatio[us] litigation in federal, state, and tribal courts" "[f]or nearly thirty years" by submitting "frivolous and often nonsensical" court filings that caused "confus[ion]" as to who "represent[ed] the views and opinions of the tribe"; (4) "delay[ed] legal proceedings, confus[ed] legal issues, and interven[ed] where [the banished members] shouldn't, ... cost[ing] the Tribe millions of dollars in unnecessary legal fees"; and (5) sought "to destabilize the tribal government, causing waste in resources, delay in providing services, and diminishe[d] ... respect [for] the Tribe as a sovereign entity." Id. at 31.

In response to the complaint, the Business Committee, on November 19, 2018, issued Resolution No. 18-472, which initiated banishment proceedings against the banished members. The resolution authorized serving a complaint and notice of hearing on the banished members. The resolution also scheduled a banishment hearing for November 27, 2018, at 1:30pm.

On November 20, 2018, the Business Committee issued the notice of hearing. Like the tribal resolution, the notice of hearing established that the banished members’ banishment hearing would be held on November 27, 2018, at 1:30pm. It also informed the banished members that at the hearing the Business Committee would "decide whether to banish [them] from the Uintah and Ouray Reservation for [their] actions which seriously threaten[ed] the peace, health, safety, morals, and general welfare of the Ute Indian Tribe." Id. at 34. Finally, the notice of hearing listed the allegations found in the complaint, and it told the banished members that they could "appear with counsel if [they] desire[d] and present evidence on [their] own behalf." Id.

Chegup, Jenkins, and Kozlowicz were served the notice of hearing on November 23, 2018. The record is less clear as to when the notice of hearing was served on Amboh. Sometime after the banishment hearing was scheduled but before it took place, Amboh, according to a declaration she filed in the district court, "attempted to file document requests with the Tribal Court clerk, seeking any evidence to be used against [her], as well as any Complaint, Resolution, Policy, Guideline, or Ordinance to be implemented at [her] Banishment Hearing." App'x Vol. II at 193.⁶ Amboh, though, was not successful. Instead, Amboh says, "[t]he Tribal Court clerk served [her] in the lobby with the Notice of Banishment Hearing, refused to acknowledge any document request, and refused to otherwise provide [her] with any written tribal law or regulation." Id. Later, Amboh "went to the tribal offices ... and asked the secretary for any evidence to be used against [her], as well as any Complaint, Resolution, Policy, Guideline, or Ordinance to be implemented at the Hearing." Id.⁷ Amboh...