A lawyer for four women who were temporarily banned from the Ute Indian Tribe’s reservation in Utah asked a federal appeals court on Tuesday to revive a lawsuit challenging their punishment.
In 2018, the tribe banned Angelita Chegup, Tara Amboh, Mary Carol Jenkins and Lynda Kozlowicz from its reservation about 150 miles east of Salt Lake City for five years over allegations they tried to destabilize the tribal government and had filed frivolous lawsuits for nearly 30 years, among other things.
The women's lawyer, Ryan Dreveskracht, told a three-judge panel for the 10th U.S. Circuit Court of Appeals in Denver during a virtual hearing that courts have previously found that Native Americans have the right to challenge a banishment. He said the punishment puts 15% of the state off limits to his clients.
“This is the only land they have ever known,” he said.
The tribe’s lawyer, Preston Stieff, argued that federal courts have not found that a temporary banishment is the equivalent of being in custody, the legal standard for them to intervene in tribal discipline under the Indian Civil Rights Act. The 1968 law prevents sovereign tribal governments from infringing on the rights of members and non-members.
Tribes historically did not build jails to incarcerate people and banishment developed as a way to deal with people both accused of committing crimes and also civil offenses, said Grant Christensen, a professor at the University of North Dakota’s law school who focuses on Native American law.
The Ute Indian Tribe says the women, described in their lawsuit as older, tried to disrupt federal litigation between it and Utah to stop the reservation from being reduced in size. The existing reservation boundaries were eventually upheld, the tribe said.
A federal district judge in Utah threw out the women's claim, citing a 2017 decision by the 9th U.S. Circuit Court of Appeals in another temporary banishment case. It involved members of the United Auburn Indian Community in California who were banished for 10 years after they publicly accused the tribal council of financial mismanagement and claimed that tribal elections were rigged.
The court ruled that they did not have a right to challenge the banishment in federal court because of tribes' sovereign immunity to determine the makeup of their communities.
However, in 1996 the 2nd Circuit appeals court found that a federal court could become involved in a case of permanent banishment imposed by the Tonawanda Band of Seneca Indians in New York.