Gardner v. Wyasket, 10th Cir. (2005)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
JAN 25 2005
PATRICK FISHER
Clerk
EDSON G. GARDNER, LYNDA M.

KOZLOWICZ; KENNETH MCCOOK;
KATHIE MCCOOK; JOHN DIAZ;
DAVID P. SLIM; ATHENYA SLIM;
JOHN A. SLIM,
Plaintiffs-Appellants,
No. 04-4115
(D.C. No. 2:04-CV-142-TC)
(D. Utah)
v.
FLOYD WYASKET, Ute Tribal Chief
Judge; A. LYNN PAYNE, Eighth
Judicial District Judge, Duchesne
County; JOHN R. ANDERSON,
Eighth Judicial District Judge, Uintah
County,
Defendants-Appellees,
and
STATE OF UTAH; ROOSEVELT
CITY; DUCHESNE CITY; UINTAH
COUNTY; DUCHESNE COUNTY,
Defendants.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before KELLY , Circuit Judge, BARRETT , Senior Judge, and BALDOCK ,

Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiffs, Native Americans who assert that they have been injured through
actions taken by the Ute Tribe and the State of Utah, appeal from a district court
order insofar as it dismissed with prejudice their claims against Utah state judges
Lynn Payne and John Anderson and Ute Tribal Court chief judge Floyd Wyasket.
The initial and amended pleadings plaintiffs filed in the district court were vague
and variable in focus, and their pro se appellate brief does more to obfuscate than
to clarify the matter. Exacerbating these impediments to our review, plaintiffs
have failed to file a transcript of the hearing at which the district court explained
its rationale for decision. Under the circumstances, we affirm.
Only plaintiff Gardner signed the initial notice of appeal, though the other
pro se plaintiffs were listed as appellants. An amended notice was filed shortly
thereafter with all of the necessary signatures. All plaintiffs are therefore proper
appellants. Casanova v. Dubois , 289 F.3d 142, 145-46 (1 st Cir. 2002); see Becker
v. Montgomery , 532 U.S. 757, 759-68 (2001); Wash v. Johnson , 343 F.3d 685,
687-89 (5 th Cir. 2003) (per curiam).
1
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The thrust of plaintiffs original complaint was that Ute Tribal officials had
improperly conveyed unspecified portions of Uintah and Ouray Reservation lands
to the State of Utah and several cities and counties. Plaintiffs alleged that these
actions violated the Indian Nonintercourse Act (INA), 25 U.S.C. 177, which
prohibits the conveyance of land held by Indian nations or tribes unless effected
by treaty or convention entered into pursuant to the Constitution. They claimed
that the Ute Tribal Court assisted and even participated in these conveyances, and
for that they blamed chief judge Wyasket. The role of the Utah courts, and hence
the basis for claims against state judges Payne and Anderson, apparently consisted
in enforcing the rights of the transferees over those of the plaintiffs. The primary
relief sought was a declaration [that] as Indian[s] Plaintiffs have [a] possessory
interest in Indian Country or Indian Lands within State of Utah . . . [and that the]
purported conveyance of this possessory interest . . . violates the Indian
[Non]intercourse Act[,] 25 U.S.C. [] 177. R. doc. 1, at 3;
see also id. at 14-15.
Plaintiffs also requested damages for benefits unjustly received, along with
such other and fu[r]ther relief, possibly including ejectment, as [the] Court may
deem just and proper.
Id. at 15.
The district court viewed this complaint as an unintelligible jumble of

imprecise and poorly worded allegations that do not give notice of the claims
Plaintiffs are attempting to allege or the facts that support their claims.
-3-
R. doc.7, at 1. Accordingly, the district court order[ed] Plaintiffs to file a more

definite statement of their claims, in the form of an amended complaint, or face
dismissal of the action.
Id.
Plaintiffs responded by filing an amended complaint with allegations no

less general but with a different thrust. Although still alluding to the protection
of property rights under the INA, plaintiffs now complained in vague terms of the
States regulation of reservation lands, interference with the Ute Tribal Court, the
denial of unspecified prospective economic development opportunities, and the
threat of unidentified criminal charges against plaintiffs.
See R. doc. 12.
In the meantime, defendants filed motions to dismiss on grounds of judicial

immunity and failure to state a claim. The parties submitted several memoranda
regarding the motions, and plaintiffs requested a hearing for oral argument on the
various issues raised. The district court held a hearing on May 18, 2004 and, the
next day, issued a written order dismissing plaintiffs claims against the defendant
judges with prejudice. This summary order contains none of the courts legal
analysis. Rather, it just refers in general terms to the defendants motions seeking
dismissal pursuant to the doctrine of absolute immunity and pursuant to Federal
Rule of Civil Procedure 12(b)(6), and then grants the motions [f]or the reasons
set forth at the close of the May 18, 2004 hearing. R. doc. 28, at 1.
-4-
Despite the critical nature of the district courts explanation of its ruling at
the close of the hearing, plaintiffs have not provided a transcript for our review,
as required by Fed. R. App. P. 10(b) and 10
th Cir. R. 10.1(A)(1), 10.3(C)(3), and
28.2(A)(2). We have made it clear that a failure to file the required transcript
[of an oral ruling] involves more than noncompliance with some useful but
nonessential procedural admonition of primarily administrative focus. It raises an
effective barrier to informed, substantive review.
McGinnis v. Gustafson ,
978 F.2d 1199, 1201 (10 th Cir. 1992). When this occurs, the omission leaves us
with no alternative but to affirm the affected ruling.
Id. Plaintiffs pro se status
does not excuse their noncompliance or suspend its consequences,
see generally
Nielsen v. Price , 17 F.3d 1276, 1277 (10 th Cir. 1994), as this courts practice in
unpublished cases applying
McGinnis reflects, see, e.g. , Watson v. Unified Govt
of Wyandotte County , 70 Fed. Appx. 493, 499-500 (10

Trimble v. Silvern , 62 Fed. Appx. 239, 242 (10
th Cir. 2003) (unpub.);
th Cir. 2003) (unpub.).
There is an additional and quite basic legal deficiency here, overlooked by

the parties, that warrants acknowledgment. The one claim clearly, albeit without
any specificity, asserted in the pleadings involves the conveyance of tribal land in
violation of the INA. But the INA was designed to protect the land rights only
of tribes . James v. Watt , 716 F.2d 71, 72 (1 st Cir. 1983). Individual Indians do
not fall within the zone of interests to be protected by the Nonintercourse Act.
-5-
Golden Hill Paugussett Tribe v. Weicker
, 39 F.3d 51, 55 n.1 (2d Cir. 1994).
Thus, plaintiffs claim, insofar as it is based on the INA, must fail.
James ,
716 F.2d at 72; see Hill Paugussett Tribe , 39 F.3d at 55 n.1; San Xavier Dev.
Auth. v. Charles , 237 F.3d 1149, 1152 (9 th Cir. 2001).
The judgment of the district court is AFFIRMED. Appellants motion for
sanctions against Davis Graham & Stubbs LLP, counsel for appellee Wyasket, is
DENIED.
Entered for the Court
Paul J. Kelly, Jr.

Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

EDSON G. GARDNER, LYNDA M.

Before KELLY , Circuit Judge, BARRETT , Senior Judge, and BALDOCK ,

see also id. at 14-15.

The district court viewed this complaint as an unintelligible jumble of

R. doc.7, at 1. Accordingly, the district court order[ed] Plaintiffs to file a more

Plaintiffs responded by filing an amended complaint with allegations no

See R. doc. 12.

In the meantime, defendants filed motions to dismiss on grounds of judicial

th Cir. R. 10.1(A)(1), 10.3(C)(3), and

Id. Plaintiffs pro se status

does not excuse their noncompliance or suspend its consequences,

McGinnis reflects, see, e.g. , Watson v. Unified Govt

of Wyandotte County , 70 Fed. Appx. 493, 499-500 (10

th Cir. 2003) (unpub.);

th Cir. 2003) (unpub.).

There is an additional and quite basic legal deficiency here, overlooked by

Golden Hill Paugussett Tribe v. Weicker

, 39 F.3d 51, 55 n.1 (2d Cir. 1994).

Thus, plaintiffs claim, insofar as it is based on the INA, must fail.

Entered for the Court

Paul J. Kelly, Jr.

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