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Oviatt v. Reynolds

United States Court of Appeals for the Tenth Circuit

May 7, 2018, Filed

No. 17-4124

Opinion

 [*930]  ORDER AND JUDGMENT1

This appeal involves jurisdiction over claims against tribal officials. Some or all of the four plaintiffs are lay advocates in the Ute Tribe. The Tribe allegedly ordered

• the plaintiffs' removal from tribal buildings and tribal court and

• the arrest and incarceration of the plaintiffs.

As a result of these orders allegedly being carried out, the plaintiffs sued certain tribal officials under the Indian Civil Rights Act and United States Constitution, alleging  [*931]  that the officials had violated the Fourth Amendment by incarcerating [**2]  and searching the plaintiffs.2 The district court dismissed the action for lack of jurisdiction, and we affirm.

Two of the plaintiffs have also requested appointment of the U.S. Attorney as counsel in this appeal. Exercising our discretion, we deny the request.

I. We deny the motion to appoint the U.S. Attorney as counsel.

After the appeal was fully briefed, two plaintiffs (Mr. Edson Gardner and Ms. Lynda Kozlowicz) moved for appointment of the U.S. Attorney to represent them. The motion was grounded in 25 U.S.C. § 175, which authorizes the U.S. Attorney to represent Indians on allotted lands. But, as the plaintiffs acknowledge, appointment under the statute is not mandatory. See Siniscal v. United States, 208 F.2d 406, 410 (9th Cir. 1953) ("We think 25 U.S.C.A. § 175 is not mandatory . . . ."); see also Thad Blank, Time to Recommit: The Department of Justice's Indian Resources Section, the Trust Duty, and Affirmative Litigation, 48 Idaho L. Rev. 391, 409 (2012) ("The courts have held that 25 U.S.C. § 175 does not create any statutory obligation that the DOJ participate in litigation on behalf of tribal governments."). Instead, we exercise discretion in deciding whether to appoint the U.S. Attorney. See Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1481, 312 U.S. App. D.C. 406 (D.C. Cir. 1995) (recognizing that 25 U.S.C. § 175 imposes only a discretionary duty of representation); United States v. Pend Oreille Pub. Util. Dist. No. 1, 28 F.3d 1544, 1553 (9th Cir. 1994) ("The United States has discretion to represent [**3]  the individual Indian allottees under 25 U.S.C. § 175.").

We exercise discretion to deny the requested appointment for two reasons.

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733 Fed. Appx. 929 *; 2018 U.S. App. LEXIS 11849 **; 2018 WL 2094505

KONNA C. OVIATT; EDSON G. GARDNER; LYNDA M. KOZLOWICZ; ATHENYA SWAIN, Plaintiffs - Appellants, v. WILLIAM REYNOLDS, in his official capacity as Judge of the Ute Trial Court; SHAUN CHAPOOSE; EDRED SECAKUKU; TONY SMALL; BRUCE IGNACIO; CUMMINGS J. VANERHOOP; RONALD WOPSOCK; CLEVE HATCH, Defendants - Appellees.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] (D.C. No. 2:16-CV-01008-RJS). (D. Utah).

CORE TERMS

banishment, appointment, tribal, tribal official, Tribe, district court, subject-matter, detention

Civil Procedure, Attorneys, Appointment of Counsel, Governments, Native Americans, Appeals, Standards of Review, De Novo Review, Preliminary Considerations, Jurisdiction, Jurisdiction, Subject Matter Jurisdiction, Evidence, Burdens of Proof, Allocation, Criminal Law & Procedure, Habeas Corpus, Custody Requirement, Native Americans, Indian Civil Rights Act, Subject Matter Jurisdiction, Federal Questions, Constitutional Law, Fundamental Rights, Search & Seizure, Scope of Protection, Civil Rights, Civil Rights Law, Protection of Rights, Implied Causes of Action, Immunity From Liability, Local Officials, Individual Capacity