* This order and judgment is not binding precedent, except under the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. 

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 25 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EDSON G. GARDNER, LYNDA M.

KOZLOWICZ; KENNETH MCCOOK;

KATHIE MCCOOK; JOHN DIAZ;

DAVID P. SLIM; ATHENYA SLIM;

JOHN A. SLIM,

Plaintiffs-Appellants,

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.

No. 04-4115

(D.C. No. 2:04-CV-142-TC)

(D. Utah)

ORDER AND JUDGMENT *
1 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).

-2-

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. 1

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.
-3-

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.” 
-4-

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

State’s 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 court’s 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.
-5-

Despite the critical nature of the district court’s 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 court’s practice in

unpublished cases applying McGinnis reflects, see, e.g. , Watson v. Unified Gov’t

of Wyandotte County , 70 Fed. Appx. 493, 499-500 (10 th Cir. 2003) (unpub.);

Trimble v. Silvern , 62 Fed. Appx. 239, 242 (10 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.” 
-6-

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