Shivwits Band of Paiute Indians et al v. Borchardt-Slayton

Filing 69

MEMORANDUM DECISION AND ORDER granting 66 Motion to File Amicus Brief; granting 62 Motion to Withdraw as Counsel - Attorney Geoffrey D. Strommer; Paul H. Tsosie; Craig A. Jacobson and Riley F. Plumer withdrawn from case for Corr ina Bow; dismissing as moot 44 Motion to Dismiss; dismissing as moot 49 Motion for Leave to File SurReply. The case is dismissed with prejudice - CASE CLOSED. Magistrate Judge Paul Kohler no longer assigned to case. Signed by Judge David Nuffer on 6/3/21 (alt)

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
SHIVWITS BAND OF PAIUTE INDIANS
and KANOSH BAND OF PAIUTE
INDIANS,
Plaintiffs,
v.
CORRINA BOW, in her official capacity as
Tribal Chairperson of the Paiute Indian Tribe
of Utah,

MEMORANDUM DECISION AND
ORDER
• GRANTING [66] MOTION
TO FILE AMICUS BRIEF,
• GRANTING [62] MOTION TO
WITHDRAW AS COUNSEL, AND
ORDER OF DISMISSAL OF ACTION
Case No. 4:20-cv-00009-DN
District Judge David Nuffer

Defendant.
This action originally involved Plaintiffs Shivwits Band of Paiute Indians and Kanosh
Band of Paiute Indians (the “Bands”) allegations against the former Tribal Chairperson of the
Paiute Indian Tribe of Utah (“PITU”), Tamra Borchardt-Slayton (“Borchardt-Slayton”), for
certain alleged ultra vires actions taken by her in violation of federal law in her official capacity
as Tribal Chairperson. 1 On April 24, 2021, Corrina Bow (“Bow”) was elected to replace
Borchardt-Slayton as the PITU Tribal Chairperson, 2 and Bow was substituted as the named
Defendant in this action pursuant to FED. R. CIV. P. 25(d). 3 The Bands and Bow then filed a
stipulation for dismissal (“Stipulation”), 4 but Borchardt-Slayton filed a motion to file an amicus

1

Complaint, docket no. 2, filed Feb. 14, 2020.

Notice of Substitution of Current Tribal Chairperson as Successor Defendant, Exhibit 1, docket no. 61-2, filed May
3, 2021.
2

After Corrina Bow’s automatic substitution as the named Defendant, a Notice to Parties Suggesting Action is Moot
was entered, docket no. 63, filed May 21, 2021. Plaintiffs filed a Response to Court’s Notice (“Response”), docket
no. 65, filed Jun. 1, 2021, arguing that the action is not moot, and requesting entry of the Joint Stipulation for
Dismissal (“Stipulation”), docket no. 64, filed May 27, 2021. Because the Stipulation with minor edits is entered
with this order, the Response need not be addressed.
3

4

Stipulation.

brief (“Amicus Brief Motion”) 5 requesting that certain portions of the proposed stipulation
(“Proposed Stipulation”) 6 be stricken as contrary to her interests as a non-party. Based on review
of the Stipulation, Proposed Stipulation, the Amicus Brief Motion, and all other filings in this
action, the Stipulation is GRANTED in part, the Amicus Brief Motion is GRANTED, and this
action is DISMISSED with prejudice.
DISCUSSION
Borchardt-Slayton argues in her Amicus Brief Motion:
(1) Paragraph 4 in the Proposed Stipulation is contrary to the court’s Findings of Fact and
Conclusions of Law entered on January 6th (“January 6th Order”) 7; 8
(2) Paragraph 2 and the second sentence of paragraph 7 of the Proposed Stipulation
should not be entered because those findings “serve no purpose other than to have this
Court cast unsubstantiated blame on Ms. Borchardt-Slayton” and that “[u]nproven
allegations stating that a nonparty violated Tribal law and federal law as alleged in the
Complaint and that any damages or fees or costs incurred by Plaintiffs or individuals
harmed by her acts may be pursued against Borchardt-Slayton in Tribal Court should not
be turned into judicial findings of fact by this court”; 9 and
(3) the pending motion to withdraw as counsel (“Motion to Withdraw”) 10 has not yet
been decided and so Bow has allegedly entered into the Stipulation without the advice
and assistance of counsel. 11

Motion for Leave to File Amicus Brief on Behalf of Nonparties Indian Peaks Band of Paiute Indians and Tamra
Borchardt-Slayton (“Amicus Brief Motion”), docket no. 66, filed Jun. 2, 2021.

5

6

[Proposed] Order and Decree of Dismissal (“Proposed Stipulation”), docket no. 64-1, filed May 27, 2021.

Findings of Fact, Conclusions and Order Denying: (Dkt. 22) Motion to Dismiss; (Dkt. 29) Motion to Submit
Surreply in Opposition to Motion to Dismiss; and (Dkt. 35) Motion to Strike Plaintiffs’ Notice of Supplemental
Authority (“January 6th Order”), docket no. 41, filed Jan. 6, 2021.

7

8

Amicus Brief Motion at 2–3.

9

Amicus Brief Motion at 4 (internal quotation marks and citations omitted).

Motion to Withdraw as Counsel for Defendant Corrina Bow in Her Official Capacity as Tribal Chairperson for the
Paiute Indian Tribe of Utah (“Motion to Withdraw”), docket no. 62, filed May 14, 2021.
10

11

Amicus Brief Motion at 5.

2

Paragraph 4 of the Proposed Stipulation is entered as a recital in this
Order and not as a binding legal conclusion.
Paragraph 4 of the Proposed Stipulation states:
Each of the five Bands of the Paiute Indian Tribe of Utah, including the Plaintiff
Shivwits and Kanosh Bands, has enforceable legal rights and general standing
under the Paiute Restoration Act, the Indian Reorganization Act, and the Indian
Civil Rights Act, equal to any rights of the Tribe, and can independently exercise
any rights under those Acts; 12
The January 6th Order did not address whether each Band of PITU has separately
enforceable legal rights under the Paiute Restoration Act, the Indian Reorganization Act, and the
Indian Civil Rights Act, 13 and this question has not been decided in this case. Therefore,
paragraph 4 of the Proposed Stipulation will become a recital of agreement between the parties
rather than a binding legal conclusion in the stipulation entered in this Order.
Paragraph 2 and the second sentence of paragraph 7 of the Proposed Stipulation
is entered acknowledging that any damages incurred have not been
adjudicated by this court.
Paragraph 2 of the Proposed Stipulation addresses findings by the Tribal Council and
Tribe, 14 which are not findings of this court. Such recitals of the parties’ positions are not
uncommon in settlement agreements between parties. Paragraph 2 will be included in the
stipulation entered in this Order.
Paragraph 7 also presents findings by the Tribal Council and Tribe 15 and does not create
an adjudication of liability against Borchardt-Slayton. The bolded and underlined language is
added to paragraph 7 to bar any such assertions to the contrary:

12

Stipulation ¶ 4 at 2.

13

January 6th Order.

Stipulation; see also Approval of Joint Stipulation for Dismissal and Order and Decree of Dismissal, Resolution
No. 2021-23 (“Resolution”), docket no. 64-2, filed May 27, 2021.

14

15

Stipulation; see also Resolution.

3

The Tribe and Tribal Council are not liable for payment of any damages, attorney
fees, or costs related to this case. Any damages or fees or costs incurred by
Plaintiffs or individuals harmed by her acts are not adjudicated here but may be
pursued against Borchardt-Slayton in Tribal Court;
The pending motion to withdraw as council is granted and Defendant Corrina Bow
need not file a Notice of Appearance because this action is dismissed.
The pending Motion to Withdraw 16 complies with DUCivR 83-1.4(c) and good cause
exists to grant the motion. Therefore, the Motion to Withdraw is GRANTED. This action will
not be stayed because this Order disposes of this action. If Defendant Corrina Bow intends to file
any further motions or documents in this action after this Order is entered, she must first file a
Notice of Appearance or Notice of Substitution of Counsel.
ORDER
IT IS HEREBY ORDERED that the pending motion to withdraw as counsel 17 is
GRANTED. Defendant Corrina Bow must file a Notice of Appearance or Notice of Substitution
of Council if she intends to file any further motions or documents in this action after this Order is
entered.
IT IS FURTHER ORDERED that the Motion for Leave to File Amicus Brief on Behalf
of Nonparties Indian Peaks Band of Paiute Indians and Tamra Borchardt-Slayton 18 is
GRANTED.
IT IS FURTHER ORDERED that:

16

Docket no. 62, filed May 14, 2021.

Motion to Withdraw as Counsel for Defendant Corrina Bow in Her Official Capacity as Tribal Chairperson for the
Paiute Indian Tribe of Utah, docket no. 62, filed May 14, 2021.
17

18

Docket no. 66, filed Jun. 2, 2021.

4

1.

Although she is now the named Defendant, all parties agree that Chairwoman

Corrina Bow had no part in former Defendant Tamra Borchardt-Slayton’s (Borchardt-Slayton)
unlawful actions;
2.

After reviewing the Tribal records and the record in this case, the Defendant,

Tribal Council and the Tribe agree that Borchardt-Slayton’s actions violated Tribal law and
federal law as alleged in the Complaint;
3.

The Defendant and Tribal Council shall abide by its Constitution and Rules of

Procedure;
4.

The parties agree that each of the five Bands of the Paiute Indian Tribe of Utah,

including the Plaintiff Shivwits and Kanosh Bands, has enforceable legal rights and general
standing under the Paiute Restoration Act, the Indian Reorganization Act, and the Indian Civil
Rights Act, equal to any rights of the Tribe, and can independently exercise any rights under
those Acts;
5.

The Tribe shall support the Shivwits Band’s Secretarial election request and

support any constituent Band’s request to exercise its rights under the Indian Reorganization Act.
The Tribe shall support the Secretarial election request by submitting a letter to the Bureau of
Indian Affairs and Interior Board of Indian Appeals declaring that the Tribe supports the
Shivwits Band’s request and agrees with the reasons for the request and processes requested by
the Band;
6.

The Defendant and Tribal Council will give each Band representative on the

Tribal Council fair and equal notice of meetings and the opportunity to participate in each
meeting as set forth in Tribal law;

5

7.

The Tribe and Tribal Council are not liable for payment of any damages, attorney

fees, or costs related to this case. Any damages or fees or costs incurred by Plaintiffs or
individuals harmed by her acts are not adjudicated here but may be pursued against BorchardtSlayton in Tribal Court; and
8.

This case is hereby DISMISSED, WITH PREJUDICE.

IT IS FURTHER ORDERED that the pending motion to dismiss 19 and motion for leave
to file surreply 20 are DISMISSED as MOOT.
The clerk is directed to close the case.
Signed June 3, 2021.
BY THE COURT
________________________________________
David Nuffer
United States District Judge

Defendant’s Motion to Dismiss and Memorandum in Support of Motion for Lack of Subject Matter Jurisdiction
and Mootness, docket no. 44, filed Jan. 26, 2021.
19

20

Plaintiffs’ Motion for Leave to File Surreply and Memorandum in Support, docket no. 49, filed Feb. 16, 2021.

6