On August 29, 2023, the United States moved to intervene in a land claim filed by the Ysleta Del Sur Pueblo against the City of El Paso. The United States’ motion to intervene is noteworthy for two reasons. First, the United States seeks to intervene in the Pueblos’ lawsuit in the capacity as the Pueblo’s trustee to protect its right of occupancy to the lands in question. (To be sure, the U.S. also seeks to intervene to protect its sovereign interests in enforcing federal law, specifically, the Non-Intercourse Act.). After the Supreme Court’s recent decision in Arizona v. Navajo Nation, 143 S. Ct. 1804 (2023), that reduces the United States’ trust responsibility to federally recognized tribes to an act of federal charity, it is good news to know that the U.S. still takes its trust responsibility at least somewhat seriously.
The second reason the proposed U.S. intervention is notable is because of the arguments it makes in favor of its intervention as of right under Federal Rule of Civil Procedure 24 (a). Any tribal attorney who has ever tried to intervene in a case in which the U.S. is a party knows that the government will argue that a tribe can only intervene permissively and not as of right because the U.S., as the tribe’s trustee, can adequately represent the tribe’s interest. But in its Ysleta Del Sur motion, the U.S. argues that the Pueblo cannot adequately represent the government’s interests because “the United States’ interests as trustee for the Pueblo are separate and distinct from, and may not always align with, the Pueblo’s interests as the beneficiary.” It goes on to say that the “Pueblo and the United States may disagree on the United States’ role in this case, its interpretation of law, and the historical record, among other things.” The U.S. notes that its interests “transcend the focus of the individual Pueblo and concern questions of [law and fact] more broadly, relative to all Indian tribes.”
Of course, the United States is not wrong in making these arguments. In fact, it could not be more correct. What is truly ironic, however, is that the argument is equally true when it is a tribe that is trying to intervene in a case in which the U.S. is an existing party. Just as the Pueblo cannot represent the government because the U.S. has interests that transcend those of a particular tribe, the U.S. similarly cannot adequately represent a particular tribe that has legitimate interests more specifically focused than those of the government.
The next time a tribe attempts to intervene as of right in a case in which the U.S. is an existing party, the tribe’s attorneys should be sure to cite the government’s arguments made in the Ysleta Del Sur case to justify the tribe’s right to intervene despite the presence of the U.S. You can rest assured that the attorneys at mctlaw will make this argument on behalf of any tribal client we represent in a motion to intervene.