Oranna Bumgardner Felter, et al., -v- Kenneth Salazar, Secretary of
the Interior, et al., Case No. 1:02 CV 2156 (RWR)
By Dennis G. Chappabitty, Counsel of Record, OBA #1617
January 10, 2010
In sum, it is obvious that the Defendant United States of America is attempting to establish a link between each individual Plaintiff and the UDC. It is their position that if such a direct link can be established that the legal principles of Res Judicata and Collateral Estoppel will accomplish Defendants’ goal of dismissing the action for accounting. An example of the Defendants’ argument on the UDC connection is found at p. 8: “So too here, Plaintiffs are attempting to ignore the established statutory and case law framework that vest the UDC with authority to manage the mixed-blood members’ interest in the indivisible assets of the Ute Indian Tribe. In other words, they contend that it was the UDC who called the shots all along and if they didn’t bother to file an action for an accounting as the authorized representative for the 490 Mixed Bloods then their failure must cause the action for accounting to be dismissed.
In comparison with our Supplemental Memorandum, it appears to me that rather than establish a simple structure to address what Judge Roberts wanted that the Defendants just point their finger at the supposed role of the UDC to serve as the organization responsible for filing and accounting. Our Supplemental Memorandum established a simple framework describing why our action for an accounting was never done by anyone, including the UDC. They also try to emphasize the role of the Supreme Court in deciding cases and that this somehow ends the case right there.
The next point I feel the Defendants fail is that they conclude that any and all monies accrued to the individual Plaintiffs must all be labeled as “indivisible tribal assets” without explaining how you can lump everything together in one basket. In other words, the sums of monies that we are seeking an accounting of are considered by the Defendants to be the same and not different even if they were accrued before the enactment of the UPA by Congress in 1954. In my opinion, the Defendants are trying to “blend in” and “mix up” what we described in the Amended Complaint, para. No. 111, as totally separate monies awarded by Congress to the Colorado Bands who agreed to give, under the “share and share alike agreement”, some of those funds over to the Ute Tribe and the Uinta Band as a separate entity existing under the 1937 Constitution and Bylaws of the Ute Indian Tribe. My question is “when and how did Congress take funds awarded in 1951 that were placed into the ownership of the Uinta Band and its individual members before 1954 so it can call those pre-1954 monies “indivisible tribal assets.” I do not believe that they explained this at all to Judge Roberts in their Supplement Memorandum and, if the did try to, they did a poor job at it. When you carefully read the specific language of the Eight Cause of Action, you will conclude that there is no way that the Defendants can successfully argue that what were clearly monies awarded and described in para. No. 107 under a Court of Claims Commission award should have been carried over and lumped into the “indivisible tribal assets” that came into existence only after 1954. If the Defendants are now taking this approach to argue for dismissal of our Eight Cause of Action, then they now, in effect, admit that a “mixing up” of separate monies did happen and there should be an accounting!
I also see where the Defendants are using the same tactic in “glossing over” the strict time line we described in the Eight Cause of Action in an effort to “smear” and “blend” everything together to say that both the UDC and AUC should have seen this years ago and sought an account way back when. Once again, the federal bureaucrats and their lawyers are continuing their ruse of throwing everything in a big bag and shaking it all up and pointing their fingers to what comes out in one pile and say: “Look it is all the same what came out of the bag.”
Judge Roberts and his legal clerks are obligated to look at each of the paragraphs in the Eight Cause of Action and the literal language/words of what we stated therein. If they do this, they will see where we drew a clear line that distinguishes between funds owned by the individual Plaintiffs when they were unquestionably enrolled members of the Ute Indian Tribe in 1951 and when the concept of “indivisible tribal assets” was implemented by the UPA in 1954. Nowhere in the Eight Cause of Action do we mention the phrase “indivisible tribal assets.”
It is our overall position that an equitable accounting of these identifiable pre- 1954 funds accrued to the ownership of individual members of the Uinta Band before their termination deprived them of the benefit of these funds that the Defendants claim to have somehow changed into “indivisible tribal assets” without adequately explaining how the UDC authorized this to occur. I simply cannot see how any provision of the UPA can be exercised to take completely separate funds accrued before the enactment of this law and move them over after 1954 where they disappear into the pile of property and funds called “indivisible tribal assets.” That is exactly why we need an accounting right now.
The Defendants argue that the AUC and UDC should have known all along about this commingling of pre and post UPA funds where they had a full and fair opportunity to litigate for an accounting. The Defendants try to make the best out of cases filed over the years by those whose role it was to manage “the indivisible assets of the Ute Tribe.” However, they do not bother to explain to the Court exactly how anyone, including the AUC and UDC, could manage/control the disposition of separately defined monies awarded by the Court of Claims in 1951 and how anyone could wave a magic wand over these monies where the became “indivisible” in nature. If the AUC and UDC never caught on to all of the charades done against them, it was because the Defendants were so good at their tricks that no one back then could have seen the need for an accounting as described in the Eight Cause of Action. Even back in the 1970's, Task Force Ten, American Indian Policy Review Commission, entered specific findings in the Congressional Record that recommended investigation into the “situation on the Uintah-Ouray Reservation, involving BIA mismanagement of trust assets, and non-ethical and illegal BIA administration actions throughout each phase of the termination process and Congress should direct the general accounting office to immediately proceed with a Full and Complete investigation of trust mismanagement of assets of all terminated tribes, in particular the Klamath tribe of Oregon and the "TERMINATED UTE INDIANS OF UTAH."
Once again, we see the never ending parade of federal government tricks and “double-speak” in their Supplemental Memorandum that is at the root over why there are so many cases filed over the faulty implementation of the UPA. If Judge Roberts and his staff are diligent and look at the briefs and Supplemental Memorandums from all angles, they will see that we drew a bold line between 1951 and 1954. If this is the case, Judge Roberts will see that the Defendants are attempting to “blur” crucial time lines to evade a simple equitable accounting with arguments that don’t explain how anyone can justify the use of the UPA to take from the Plaintiffs and hand over monies to the UDC to manage for the benefit of unintended parties, including many non-Indian individuals and non-Indian organizations.
The World will soon know that we will be on the steps of the U.S. Capitol and at the door of the Utah Congressional Delegation demanding why they won’t lift a finger to repeal this most blatant racist act of our U.S. Congress. Why have “white” non-Uinta persons and organizations been able to strip the identity of many of the 490 terminated “Mixed-bloods” enrich and gorge themselves while the “true Uinta” are left in poverty and suffering post traumatic stress disorder? When and how did Congress pass laws/regulations allowing white people to masquerade as “Mixed-blood” terminated Uintas?
The Defendants must understand that I will proudly stand by those of you who are brave enough to keep up our “Journey for Justice” and battle in lifting up the veil of secrecy on how white people stole the identity of many of the 490. We will continue our Journey for Justice and education of the public on this despicable and shameful dark chapter of federal termination policy by sending out on the world wide web the identities of the current non-Indian persons and organizations who enrich themselves under false pretenses. These cowards must know that no threats of lawsuits will back us down!
As we wait for the Judge to give us a decision, all of us need to think only Positive Thoughts about winning our lawsuit. No Negative Thoughts. We all need to hold our family members hands at night and in the early morning as the Sun Rises and pray to Grandfather that our "Spirit People" will go and carry the word to Judge Roberts and that he will see clearly that we must be given the accounting. Ask them to stand tall and call for all of our "Spiritual Leaders" to pray in the Sweat Lodges, and with our People that the Judge will rule in our favor. Now is the time we need to call on our ancestors to help us."
THE TRUTH WILL BE TOLD!
DENNIS G. CHAPPABITTY