Gardner v. U.S.
| Decision Date | 29 November 1993 |
| Citation | 25 F.3d 1056 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before BALDOCK and McKAY, Circuit Judges, and BROWN, ** District Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Following plaintiff Edson G. Gardner's arrest on the Uintah and Ouray Indian Reservation (reservation), he and plaintiff Lynda M. Kozlowicz commenced an action against various city, county, state, and federal officials and entities seeking declaratory and injunctive relief and damages. They appeal from the district court's order dismissing their complaint, arguing that the State of Utah lacked jurisdiction over Gardner for crimes committed on the reservation because he is an Indian. We affirm.
The complaint 2 alleges that plaintiff Kozlowicz is a member of the Ute Indian Tribe (tribe) residing within the exterior boundaries of the reservation. Plaintiff Gardner is a member of the Uintah mixed-blood descendants of the tribe residing within the exterior boundaries of the reservation. On January 13, 1992, while Gardner was driving from Roosevelt, Utah, to Fort Duchesne, Utah, BIA officer Kenneth Blackbird stopped him for speeding. Upon the discovery that his registration was expired and that he did not have a valid driver's license, Gardner became very loud and abusive. Blackbird then took him into custody. Defendants Minnie Grant and Felicia Pike, also BIA officers, were present during the arrest.
The officers took Gardner to the tribal jail, where he was held for about thirty minutes. After discovering that Gardner was not a tribal member, they requested that the county take him into custody and file charges against him. Uintah County took Gardner into custody, jailed him and charged him with four state misdemeanors. Gardner was convicted of the four state charges on August 5, 1992, without notice or an evidentiary hearing to determine his Indian status.
The complaint challenges Gardner's arrest as having been effected without jurisdiction, and requests a declaratory judgment, relief in the nature of mandamus compelling defendants to "restore" the benefits of Indian jurisdiction to plaintiffs, and damages.
Several defendants moved to dismiss under Fed.R.Civ.P. 12(b). The matter was referred to a magistrate judge pursuant to 28 U.S.C. 636(b)(1)(B). He issued a report and recommendation concluding that 1) the Eleventh Amendment bars the action against the State of Utah and the Utah State Tax Commission, and bars the action for damages against defendant Van Dam, in his official capacity; 2) the complaint fails to allege that Van Dam, in his individual capacity, had any connection with the facts of which plaintiffs complain; 3) the complaint fails to allege that defendant Duchesne County Attorney Herbert Gillespie was connected to the facts of which plaintiffs complain; 4) the complaint fails to allege facts to support a claim for relief on behalf of Kozlowicz against the county defendants; 5) Gardner, as a terminated mixed-blood Ute, was subject to state criminal jurisdiction and thus has no arguable basis for relief against the remaining county defendants; 6) the county defendants cannot restore Gardner's Indian status; 7) the complaint fails to allege that Roosevelt, Utah, had a role in the facts of which plaintiffs complain; 8) sovereign immunity bars the claims against the United States and Manuel Lujan, Jr. 3 and Perry Baker, in their official capacities; 9) there are no allegations indicating that defendants Lujan or Baker were sued in their individual capacities or that they were connected to the alleged violations; and 10) defendants BIA officers Blackbird, Pike, and Grant had authority to arrest Gardner and turn him over to the proper authorities. The magistrate judge recommended that the court grant the motions to dismiss of the state, county, and city defendants, and that the complaint against the remaining defendants be dismissed as frivolous under 28 U.S.C.1915(d). The district court adopted the recommendation.
A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if, assuming all of the factual allegations are true and construing them in the light most favorable to the defendant, " 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). We review de novo the question of the sufficiency of a complaint. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989), cert. denied, 493 U.S. 1059 (1990).
An in forma pauperis complaint 4 may be dismissed under 1915(d) if it is based on an "indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 327 (1989). We review a 1915(d) dismissal for abuse of discretion. Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992).
520-21 (1972), does not require that we relieve a pro se
plaintiff of "the burden of alleging sufficient facts on
which a recognized legal claim could be based." Hall, 935
F.2d at 1110. Even giving Kozlowicz's submissions before
the district court a liberal construction, she has failed to
adequately allege that she owned the car in question at the
time it was confiscated. We therefore uphold dismissal of
her claims. 5
We agree in large part with the district court's reasons for dismissing Gardner's claims against the state defendants, Herbert Gillespie, Roosevelt, the United States, Bruce Babbitt, and Perry Baker, but add the following comments. Defendant Van Dam, sued in his official capacity as Attorney General, is not entitled to Eleventh Amendment immunity from claims for prospective injunctive relief. Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985). Likewise, Babbitt and Baker, in their official capacities, are not immune from claims for nonmonetary relief. See Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564, 567 (10th Cir.1981).
Gardner sought a judgment declaring that he is entitled to an opportunity to contest any decision depriving him of "Indian jurisdiction." This request apparently refers to the state court's failure to afford Gardner an evidentiary hearing to determine his Indian status before finding him guilty of the state charges. It is unclear whether this relief is requested as to Van Dam, Babbitt, or Baker, or all three.
To maintain a declaratory action to prevent recurrence of a past constitutional injury, a party must demonstrate a good chance of the same injury occurring in the future. Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991). Since we determine Gardner's Indian status in this appeal, future deprivations of a hearing to determine his status will cause him no constitutional injury. His action for declaratory relief therefore is without merit.
Gardner also sought an order in the nature of mandamus to restore the benefits of Indian jurisdiction to him. We agree with the district court that Gardner's Indian status is a matter for Congress, not the defendants, to decide.
The claims against the remaining county defendants are premised on the notion that the State of Utah lacks jurisdiction over Indians for crimes committed on the reservation. The State of Utah does not have jurisdiction over crimes committed by Indians in Indian Country. Hagen v. Utah, 114 S.Ct. 958, 964 (1994). However, states do have jurisdiction in Indian country over crimes committed by non-Indians against non-Indians, as well as over victimless crimes committed by non-Indians. Solem v. Bartlett, 465 U.S. 463, 465 n. 2 (1984); Ross v. Neff, 905 F.2d 1349, 1353 (10th Cir.1990).
We accept as true the allegations that Gardner's arrest occurred within the reservation, 6 and that he is a descendant of a terminated mixed-blood Ute. The pertinent inquiry is whether this status subjects him to Utah's criminal jurisdiction.
Where a termination act such as 25 U.S.C. 677-677aa (the Act) ended the federal trust relationship with an Indian and exposed him to state law, he is subject to state criminal jurisdiction, unless his victim was an Indian. See St. Cloud v. United States, 702 F.Supp. 1456, 1466 (D. S.D.1988). See also United States v. Antelope, 430 U.S. 641, 647 n. 7 (1977)( that members of tribes whose official status has been terminated by Congress no longer subject to federal criminal jurisdiction); United States v. Heath, 509...
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US v. Murdock, 93-CR-308G.
...not in any event claim tribal membership under the aforesaid tribal constitution. The Tenth Circuit in Gardner v. United States, 25 F.3d 1056, 1994 WL 170780, (10th Cir. (Utah)), adopted and approved Judge Winder's conclusion that neither mixed-blood Terminated Utes nor their descendants un......
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Gardner v. Wilkins
...not he lives and works on the reservation."); Gardner v. Ute Tribal Court, 36 F. App'x. 927 (10th Cir. 2002); Gardner v. United States, 25 F.3d 1056 (10th Cir. 1994) (unpublished). Aware of this history and having previously warned Mr. Gardner that any attempt to relitigate the same issues ......
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Gardner v. Wilkins
...this heritage does not entitle him to Indian status whether or not he lives and works on the reservation. See Gardner v. United States, 25 F.3d 1056 (10th Cir. 1994) (unpublished); State v. Gardner, 827 P.2d 980 (Utah Ct. App. 1992); Gardner v. Ute Tribal Court, 36 F. App'x 927 (10th Cir. 1......