Federal Court Dismisses Case Allowing Banishment of Tribal Members

In 2018, the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah filed a lawsuit in federal court alleging the United States violated federal law by treating reservation lands “as though they were owned by the United States (US) outright, rather than in trust for the Tribe.” The Northern Ute Tribe (Tribe), as they are commonly known by, claimed the US wrongfully appropriated revenue related to the sale or lease of lands within the Uintah and Ouray Reservation. It added, the Bureau of Land Management’s (BLM) employees entered and trespassed onto the Reservation lands without the Tribe’s authorization.


The Tribe sought injunctive relief with an order quieting title in the name of the United States. Plaintiffs, enrolled members of the Tribe, filed a motion to intervene. They argued the land should be preserved only for the Uintah Band of Ute Indians instead of the Northern Ute Tribe. The motion to intervene was opposed by the Tribe and the court denied the Plaintiff’s motion.

In 2018, the Business Committee of the Ute Indian Tribe of the Uintah and Ouray Reservation received a complaint from seventy Tribe members requesting the banishment of the plaintiffs for attempting to intervene into the Tribe’s case and threatening the “peace, health, safety, morals, and general welfare of the Tribe. Resolution No. 18-472 was later signed unanimously by the Business Committee, which began the process of banishing the plaintiffs. The Business Committee held a hearing and decided the plaintiffs should be banished from the reservation.

Plaintiffs’ Arguments

The plaintiffs filed suit in the US. District Court of Utah in April, 2019. They argued their rights were violated under the Due Process Clause of the Indian Civil Rights Act of 1968, and that the defendants violated their right to be informed of charges and confront their witnesses. They claimed they were stripped of their homes, employment, retirement plans, health insurance, and were precluded from participating in tribal ceremonies and cultural events. The plaintiffs filed a Habeas Corpus Motion for Immediate Release, asking the court to reinstate their rights pending the resolution of their complaint.

Motion to Dismiss

The defendants filed a motion to dismiss the Plaintiffs’ complaint for lack of subject-matter jurisdiction. When a court’s subject-matter jurisdiction is questioned, the party asserting jurisdiction bears the burden establishing it by a preponderance of the evidence. Courts that lack subject matter jurisdiction are required to dismiss the action.

Indian tribes are self-governed “distinct political entities.” The United States recognizes Indian tribes as distinct, inherent sovereign governments possessing sovereign immunity. This includes immunity for tribe’s governing officials. Claims against the Business Committee are against the tribe and are barred by the tribe’s sovereign immunity. The case, Walton v. Tesuque Pueblo, 443 F.3d 1274, 1277 (10th Cir. 2006) demonstrated that the immunity held by Indian tribes prevents federal courts from exercising jurisdiction against them when they are acting in their official capacities.

The plaintiffs asserted subject-matter jurisdiction by claiming the defendants violated their rights in Section 1302 of the Indian Civil Rights Act of 1968 (ICRA”. Under Section 1302, tribal members may file a writ of habeas corpus pursuant to Section 1303. The privilege in Section 1303 provides the writ of habeas corpus to any person in a U.S. court to test the legality of his detention by order of an Indian tribe. Two prerequisites are required to obtain habeas relief. A plaintiff must establish he or she is “in custody,” and must “exhaust all tribal remedies.”

According to Section 1303, a plaintiff is “detained” or “in custody” if the person is “subject to “a severe actual or potential restraint on liberty.” The plaintiffs relied on the case, Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996), to argue their temporary banishment of five years was equivalent to “detention.” Poodry held that the liberty of members of the Tonawanda Band of Seneca Indians was restrained by being banished from their tribe. The court, however, noted important differences between the two cases. Unlike the members of the Ute Indian Tribe of the Uintah and Ouray Reservation, the banishment of members of the Tonawanda Banda was permanent. The court also added, “virtually every court” that has addressed banishment under Section 1303 concluded only permanent banishment is enough to meet the detention requirement. The court relied on authority and concluded that banishment must be permanent to be considered detention under Section 1303. The district court held it lacked subject-matter jurisdiction and the plaintiff’s complaint was dismissed.

Motion for Immediate Release

The plaintiffs’ Motion for Immediate Release relied on the ability of their case to be heard by the court. However, because they lacked subject-matter jurisdiction, the plaintiffs’ motion was denied.


The hearing that decided the fate of the plaintiffs may appear unfair. Plaintiffs were given little time to respond to the notice and were unable to have counsel present. The Court also noted the Tribal Secretary and Tribal Court Clerk were unresponsive to the plaintiffs’ request for documentation of evidence that would be used against them and policy that would be implemented at the hearing. However, the court noted the Tribe's sovereign immunity, allowing the tribe to adjudicate their members as they see fit.

If you would like more information on this case, or find yourself in a similar situation, contact Whitcomb Selinsky PC at (866) 476-4558 or complete an online contact form.

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