Attorneys for Vernal City and Uintah County, Defendants

Transcription

1 Case 2:09-cv TC-EJF Document 240 Filed 12/11/12 Page 1 of 8 Jesse C. Trentadue (#4961 Britton R. Butterfield (#13158 SUITTER AXLAND, PLLC 8 East Broadway, Suite 200 Salt Lake City, Utah Telephone: ( Facsimile: ( jesse32@sautah.com butterfield@sautah.com Attorneys for Vernal City and Uintah County, Defendants UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION DEBRA JONES and ARDEN C. POST, individually and as the natural parents of Todd R. Murray; and DEBRA JONES, as personal representative of the Estate of Todd R. Murray, deceased, for and on behalf of the heirs of Todd R. Murray; v. Plaintiffs, VANCE NORTON, Vernal City policy officer in his official capacity and individual capacity; et. al., Defendants. VERNAL CITY and UINTAH COUNTY DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS and MEMORANDUM IN SUPPORT RE: PLAINTIFFS EIGHTH CAUSE OF ACTION Case No. 2:09cv00730-TC-EJF Judge Tena Campbell Magistrate Judge Evelyn J. Furse Oral Argument Requested

2 Case 2:09-cv TC-EJF Document 240 Filed 12/11/12 Page 2 of 8 MOTION Plaintiffs Eighth Cause of Action is for civil rights violations based upon the Ute Treaty of 1868 ( Ute Treaty. Specifically, Plaintiffs contend that Defendants Vance Norton, Anthoney Byron, Bevan Watkins, and Troy Slaugh violated the Ute Treaty with respect to their alleged pursuit of Murray and Murray s death within the exterior boundaries of the Uintah and Ouray Reservation. According to Plaintiffs, this is actionable under 42 U.S.C However, as a matter of law, the Ute Treaty does not secure to Plaintiffs or other members of the Ute Indian Tribe rights, privileges, or immunities that can be vindicated in a 1983 civil rights action. WHEREFORE, pursuant to Federal Rule of Procedure 12(c, Defendants Vance Norton, Anthoney Byron, Bevan Watkins, Troy Slaugh, Vernal City, and Uintah County, Utah (collectively Vernal City and Uintah County Defendants hereby move for judgment on the pleadings with respect to Plaintiffs Eighth Cause of Action. 1 Vernal City and Uintah County Defendants Memorandum in Support is set out below. Oral argument is requested. 1 Doc. 170, s 128 through

3 Case 2:09-cv TC-EJF Document 240 Filed 12/11/12 Page 3 of 8 MEMORANDUM IN SUPPORT In their Third Amended Complaint, Plaintiffs allege a violation of 42 U.S.C. 1983, because the Ute Treaty of 1868 ( Ute Treaty is a federal law, 2 which provides a remedy to individual Ute tribal members who suffer harm at the hands of tortfeasors who commit any wrong upon the person or property of Ute tribal members, provided the tortfeasors are subject to the authority of the United States. 3 Plaintiffs go on to allege that Vernal City and Uintah County Defendants are subject to the authority of the United States because they have been served with process in this lawsuit. 4 Plaintiffs have, however, misread the Ute Treaty. The Treaty language that Plaintiffs contend gives rise to a 1983 civil rights violation appears in Article VI of the Ute Treaty, which provides that: If bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and [the United 2 Doc. 170, Id. at Id. at

4 Case 2:09-cv TC-EJF Document 240 Filed 12/11/12 Page 4 of 8 States will] reimburse the injured party for the loss. 5 Plaintiffs have obviously misread the language of Article VI, which does not create any rights that can be asserted against Vernal City and Uintah County Defendants by way of a 1983 claim. To the extent that Plaintiffs have a claim under Article VI of the Ute Treaty, it is against the United States, and must be brought in the Court of Claims. A treaty between the United States of America and an Indian tribe is essentially a contract between two sovereign nations. 6 Such treaties have, on occasion, been found to provide rights of action for equitable relief against noncontracting parties. 7 However, equitable relief only ensures compliance with a treaty and does not provide for damages against a non-contracting party. Plaintiffs would like to extend the bounds of the Ute Treaty so that they may recover damages from the Vernal City and Uintah County Defendants for the alleged Treaty violations. However, the Vernal City and Uintah County Defendants are 5 15 Stat Absentee Shawnee Tribe of Indians v. Kansas, 862 F.2d 1415, 1417 (10th Cir The Vernal City and Uintah County Defendants do not concede that Plaintiffs can maintain an action for equitable relief. 7 See United States v. Winans, 198 U.S. 371, 377, 49 L. Ed. 1089, 25 S. Ct. 662 (

5 Case 2:09-cv TC-EJF Document 240 Filed 12/11/12 Page 5 of 8 not contracting parties to the Ute Treaty and there is nothing in the Treaty s language that would support a claim against a non-contracting party. 8 Additionally, the plain language of the Treaty states that the United States will reimburse the injured person for the loss sustained. Moreover, case law interpreting other treaties with identical provisions holds that the proper defendant is the United States and the proper forum is the Court of Claims. 9 The Ute Treaty was negotiated between the United States and various bands of Ute Indians. 10 The Ute Treaty was one of nine treaties made in 1868 between the United States and various Indian tribes. These treaties were ratified, proclaimed and published in volume fifteen of the Statutes at Large,...[a]ll say that peace is their object and all contain bad men articles in similar language. 11 The plain language from the Ute Treaty states that for any wrong upon the 8 See Skokomish Indian Tribe v. United States, 410 F.3d 506, 513 (9th Cir. 2005; Cf. Alexander v. Sandoval, 532 U.S. 275, 286, 149 L. Ed. 2d 517, 121 S. Ct (2001( The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.. 9 See Richard v. U.S., 677 F.3d 1141(Fed. Cir. 2011(Court of claims has jurisdiction over United States for claims under if bad men among the whites clause even when person committing wrong was not an agent of the United States Stat Tsosie v. United States, 825 F.2d 393, 395 (Fed. Cir

6 Case 2:09-cv TC-EJF Document 240 Filed 12/11/12 Page 6 of 8 person or property of the Indians, the United States will... cause the offender to be arrested and punished... and [the United States will] reimburse the injured person for the loss sustained. 12 The so-called bad man is not liable for damages, rather it is the federal government that is liable for damages. In cases that deal with bad men articles from treaties, the proper defendant is the United States of America. For example, in Richard v. United States, 13 Plaintiffs sued the Untied States under the Fort Laramie Treaty of 1868 Fort Laramie Treaty. 14 In Richard, the personal representatives of two Sioux Tribal members killed by a non-indian drunk driver on tribal land, sued the United States in the Court of Federal Claims under the bad men article from the Fort Laramie Treaty. The bad men language from the Fort Laramie Treaty states: If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the Untied States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse Stat F.3d 1141 (Fed. Cir Stat

7 Case 2:09-cv TC-EJF Document 240 Filed 12/11/12 Page 7 of 8 the injured person for the loss sustained. 15 The bad men language from the Ute Treaty is identical to the Fort Laramie Treaty. The plain language of the treaty and the case law provide that the proper party to sue for the alleged acts of bad men under the Ute Treaty is the federal government. 16 Accordingly, the court should dismiss the Plaintiffs Eight Cause of Action against the Vernal City and Uintah County Defendants. CONCLUSION For the reasons stated above the Court should grant Vernal City and Uintah County Defendants Motion for Judgement on the Pleadings. Dated this 11 th day of December, SUITTER AXLAND, PLLC /s/ jesse c. trentadue Jesse C. Trentadue Britton R. Butterfield Attorneys for Vernal City and Uintah County Defendants 15 Id. 16 Tsosie v. United States, 825 F.2d 393, 398 (Fed Cir ( wrongs by the white side s bad men against a treaty tribe,... purports to give the tribe or a wronged member reimbursement from the federal treasury. ; Richard v. United States 677 F.3d 1141 (Fed. Cir ( Plaintiffs filed suit against the Untied States alleging that under the bad men provision in a treaty the United States must reimburse the injured parties for losses sustained as a result of wrong actions by bad men.. 7

8 Case 2:09-cv TC-EJF Document 240 Filed 12/11/12 Page 8 of 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 11 th day of December 11, 2012, I caused to be mailed a copy of the foregoing, via electronic case filing CM/ECF, to the following: Frances C. Bassett Todd K. Gravelle Sandra Denton FREDERICKS PEEBLES & MORGAN, LLP 1900 Plaza Dr. Louisville, CO Scott D. Cheney Barry D. Lawrence DEPUTY ATTORNEY GENERAL 160 East 300 South, 6 th Floor Salt Lake City, UT Kimberly D. Washburn LAW OFFICE OF KIMBERLY D. WASHBURN, P.C South 700 East, Suite D P.O. Box 1432 Draper, Utah /s/ jesse c. trentadue T:\7000\7619\3\VERNAL CITY and UINTAH COUNTY MOTIO JUDGMENT ON THE PLEADINGS.wpd