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Tribe’s Attorneys Ask Judge to Dismiss Suit Filed by `Mixed Bloods’ | 1996

    Published: June 6, 1996, 12:00 a.m. MDT


By Deseret News, Joe Costanzo, Staff Writer


Attorneys for the Ute Indian Tribe asked a federal judge Wednesday to dismiss a potentially far-reaching property rights lawsuit by "mixed bloods."

At issue is an attempt by the Ute Distribution Corp. (UDC) to assert a right of joint management over disputed property assets, including water, that were allocated when mixed-blood Utes lost tribe membership in 1954.The UDC contends the Partition Act, as the original distribution blueprint was called, provided the mixed-blood group with a share of divisible tribal assets along with a 27 percent claim to nondivisible assets, including water. It filed a lawsuit last year asking the court to order Secretary of the Interior Bruce Babbitt to enforce its interpretation of the act.

Appearing before U.S. District Chief Judge David K. Winder, UDC attorney Max D. Wheeler said the group is simply asking for a declaration of its right to jointly manage the undivided property assets.

But Ute tribe attorney Robert S. Thompson said the real issue is water and money.

"They want 27 percent of the tribe's water to sell to this town and Las Vegas," Thompson said.

He asked the judge to dismiss the UDC's lawsuit on grounds administrative channels haven't been exhausted, the statute of limitations has expired, and "because we're immune."

Wheeler rejected those arguments, saying the statute of limitations can't expire on property rights held in trust by the U.S. government and that courts have held in previous cases that sovereign immunity doesn't apply in these circumstances.

Speaking "hypothetically," Wheeler told Winder that if water rights were at issue, the government as trustee would have a fiduciary responsibility to protect those rights for the mixed-blood Utes.

"They are Indians with respect to undivided assets," Wheeler said.

Thompson responded that UDC stockholders are not Ute Indians. "A large portion are not even mixed bloods," he said.

Following the hearing, Wheeler said the stakes are enormous and that a full hearing of the case is necessary to resolve the disputes. Thompson replied, "The tribe is tired of being pulled into court on these issues."

Winder took the arguments under advisement and said he would rule soon on the motion to dismiss.

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