Published: Aug 4, 1998, 12:00 a.m. MDT
By Deseret News, Joe Costanzo, Staff Writer
A bid by Utah's "mixed-blood" Utes to share in the management of certain tribal assets could hinge on whether they sued the Ute Indian Tribe as a corporate or political entity.
A three-judge panel of the U.S. 10th Circuit Court of Appeals in Denver sent the question back to U.S. District Court in Salt Lake City last week after ruling that in one critical respect, the tribe is immune from suit.The Ute Distribution Corp., which represents the tribal interests of the mixed blood Utes, filed a lawsuit in 1995 asserting a claim over the management of certain water rights.
At issue are the terms of the Ute Partition and Termination Act of 1954, which provided for the division and distribution of tribal lands and other assets on the Uintah and Ouray Reservation between full-blooded and mixed-blood Utes.
Indivisible assets - such as gas, oil and mineral rights - remained in trust for the benefit of both the full-blood and mixed-blood Utes under the joint management the Tribal Business Committee and the representative of the mixed bloods.
In its lawsuit, the Ute Distribution Corp. asked the federal courts to declare that certain water rights had not been partitioned, remained in trust for the benefit of both the full- and mixed-blood Utes and were subject to joint management.
The tribe responded with a motion to dismiss, arguing that it was immune from suit, and that it had not waived that immunity. However, U.S. District Judge David Winder concluded that the Ute Partition and Termination Act had limited the tribe's immunity with respect to disputes over the joint management of indivisible assets.
According to Winder, allowing the tribe to assert immunity "would contradict the overriding national interest of ensuring that federal trust property is managed in an orderly manner according to the joint scheme set forth by Congress in the (1954 act)."
The tribe appealed, saying there is nothing in the act expressly authorizing a suit. The Ute Distribution Corp. countered with an alternative argument: a "sue and be sued" provision in the tribe's corporate charter constituted an express waiver of immunity.
Writing for the appeals court, Judge Michael Murphy agreed with the tribe that the act is devoid of any language clearly expressing an intent to subject the tribe to lawsuits over the joint management of indivisible assets. Therefore, the district court was wrong to conclude that the tribe's immunity was waived by the act.
However, the appeals judges directed the district court to consider the mixed-bloods' alternative argument relating to the tribal charter, which, among other things, asserts a power "to sue and be sued in courts of competent jurisdiction within the United States."
Murphy said courts have held that a "sue and be sued" clause may constitute a waiver of immunity, but this waiver is limited to actions involving the corporate activities of the tribe and doesn't extend to actions in its capacity as a political governing body.
The judges remanded the case to district court "to determine whether the tribal corporate entity is both a named and proper defendant in this case." The answer will determine whether the lawsuit can continue.