Utah officials respond to Ute lawsuit alleging racial discrimination in trust land auction

Elk roam at a ranch near Tabby Mountain in Duchesne County on Dec. 19, 2011. A recent lawsuit alleges state agencies participated in a racially discriminatory conspiracy to keep the Ute Indian Tribe from purchasing the mountain.

Elk roam at a ranch near Tabby Mountain in Duchesne County on Dec. 19, 2011. A recent lawsuit alleges state agencies participated in a racially discriminatory conspiracy to keep the Ute Indian Tribe from purchasing the mountain. (Winston Armani, Deseret News)

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SALT LAKE CITY — Utah officials are pushing to dismiss a lawsuit from the Ute Indian Tribe of the Uintah and Ouray Reservation against a number of state officials, including Utah Gov. Spencer Cox.

The Ute Indian Tribe filed a lawsuit in May alleging that state agencies cooked up a racist and discriminatory bidding scheme to prevent the tribe from purchasing Tabby Mountain, a 28,500-acre wildlife habitat just outside its reservation boundaries that was named after Chief Tabby-To-Kwanah.

The Utah School and Institutional Trust Land Administration, which manages state trust lands to fund Utah public schools, put the property up for sale in 2018.

The Ute Indian Tribe originally outbid the only other taker, the Utah Department of Natural Resources, by $6 million, according to court documents. The lawsuit claims the trust land administration conspired with the Department of Natural Resources to devise a sham second bid, including unsuccessfully lobbying state legislators for funding to make a higher bid possible.

The trust land administration later suspended the auction without giving the tribe or other parties an opportunity to submit additional bids, leaving the tribe without an option to appeal. However, the Utah School and Institutional Trust Land Administration and its director, Michelle McConkie, argue they were well within their rights to halt the bidding process and that the Ute Indian Tribe has not properly laid out its claims of discrimination.

David Ure, the agency's former director, made similar arguments in his motion to dismiss.

"Attempting to overcome School and Institutional Trust Land Administration's statutory right to suspend the bidding process, the tribe offers unfounded allegations of racial animus and asks the court to force School and Institutional Trust Land Administration to sell the tribe the land that the tribe desires," reads a motion to dismiss from the trust land administration and McConkie.

"The tribe cannot be allowed to usurp School and Institutional Trust Land Administration's broad discretion in managing lands for the benefit of its beneficiaries — Utah's schoolchildren and schools — particularly when the tribe already has access to the land and already owns the mineral rights," it continues.

The motion argues the tribe has no grounds to sue under federal civil rights laws since it is a sovereign nation rather than an individual, and because the trust land administration does not receive federal financial assistance.

Cox and Department of Natural Resources former Executive Director Michael Styler both claimed they should not be defendants in the suit since the responsibility for the sales of trust land administration's properties falls on that agency and its director.

The defendants also claimed the tribe never gave prior notice of its state law claims. That step is required by Utah's Governmental Immunity Act, which protects government entities and employees from lawsuits for torts committed within the scope of their employment.

The lawsuit follows media reports of a whistleblower complaint last year that alleged "the bid sale was rigged from the beginning to prevent the tribe from acquiring Tabby Mountain." The whistleblower, then-director of the Utah Land Trust Protection Tim Donaldson, filed his complaint the day after he filed a formal complaint with the Utah state auditor.

The Ute Indian Tribe's lawsuit alleges that the two state agencies took steps to deceive the tribe and the public about the failed sale, including creating false pretexts about the true nature of why the sale was suspended and falsely claiming the suspension was only temporary.

The lawsuit states that had the tribe acquired Tabby Mountain, the land would have been open to use by all tribal members for cultural, religious and spiritual purposes, including collecting plants and medicines and hunting.

"That behind-the-scenes response was quintessential discrimination based upon race, ethnicity, national origin and religion," the lawsuit alleges. "(School and Institutional Trust Land Administration) officers' intentional decision to wrongfully discriminate was also a violation of those officers' fiduciary duty to the trust and more generally to the state's children. They decided that keeping the land away from the Indians was more important than taking $46,976,000 into trust."

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Sydnee Chapman Gonzalez is a reporter and recent Utah transplant. She works at the Utah Investigative Journalism Project and was previously at KSL.com and the Wenatchee World in Washington. Her reporting has focused on marginalized communities, homelessness and local government. She grew up in Arizona and has lived in various parts of Mexico. During her free time, she enjoys hiking, traveling, rock climbing and embroidery.


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