FILED

United States Court of Appeals

Tenth Circuit

September 17, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDSON GARDNER, LYNDA M.

KOZLOWICZ, MARY C. JENKINS,

MELVIN JENKINS, SR., and ROGER

KOCHAMPASAKEN, in re: Uinta

Corporate Charter, and

Tabequache/Uncompahgre Corporate

Charter,

Plaintiffs - Appellants,

v.

SALLY JEWELL,*

 U.S. Secretary of

the Interior,

Respondent - Appellee.

No. 13-4095

(D.C. No. 2:11-CV-00719-BSJ)

(D. Utah)

ORDER AND JUDGMENT**

Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

*

Pursuant to Fed. R. App. P. 42(3)(c), as of April 12, 2013, Kenneth Salazar

is replaced by Sally Jewell as the Secretary of the U.S. Department of Interior.

**This order and judgment is not binding precedent, except under the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. 32.1.
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Petitioners and appellants, Edson Gardner, Lynda Kozlowicz, Mary C.

Jenkins, Melvin Jenkins Sr. and Roger Kochampasaken, proceeding pro se, appeal

an order dismissing without prejudice their action seeking issuance of a corporate

charter. For the following reasons, we affirm the dismissal.

We take the following facts from the district court’s Memorandum Opinion

& Order dated March 27, 2013: On January 31, 2011, Mr. Gardner and Ms.

Kozlowicz submitted a request to the Uinta and Ouray Agency of the Bureau of

Indian Affairs (the “Agency”), seeking issuance of a corporate charter pursuant to

25 U.S.C. § 477, in the name of “Kozlowicz and Gardner Advocate, Inc.” On

February 3, 2011, they submitted another letter to the Agency requesting that it

issue a “Uinta Corporate charter” pursuant to the same statute. On February 7,

2012, plaintiffs submitted a third letter to the Agency requesting an

“Uncompahgre Indian Corporate Charter,” as well as an amendment to the Ute

Tribal Constitution to establish the Uinta Band as a separate, federally-recognized

Indian tribe.

On February 9, 2011, the Agency Superintendent issued a letter denying

each of their requests. First, the Agency denied the January 31, 2011, request

because “Kozlowicz and Gardner Advocate, Inc.” is not a federally-recognized

Indian tribe and, therefore, cannot be granted a charter from the Secretary

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pursuant to 25 U.S.C. § 477. Second, the Agency denied the February 3, 2011,

request because the “Uinta” Band is not a federally-recognized Indian tribe. The

Agency also denied the relief requested in the February 7, 2011, letter because

(a) neither the tribal governing body [n]or a majority of the members of all three

bands that comprise the Ute Indian Tribe had requested an election to amend the

tribe’s existing constitution, and the Agency cannot unilaterally impose such an

election upon the Ute Indian Tribe; and (b) the Uncompahgre Band to which

Plaintiffs referred in their letter has not become federally-recognized under 25

C.F.R. part 83, separate and apart from the Ute Indian Tribe, which precludes the

Secretary from recognizing them as such for purposes of 25 U.S.C. § 477.

On March 8, 2011, Mr. Gardner and Ms. Kozlowicz filed appeals of the

Agency’s February 9, 2011, decisions with the Interior Board of Indian Appeals

(“IBIA”), case nos. IBIA 11-088 &11-089. On March 30, 2011, the IBIA

dismissed the appeals because the plaintiffs had not first obtained a decision from

the BIA’s Regional Director, and it referred the matter to the Regional Director’s

office.

On October 31, 2011, the Regional Director reviewed and affirmed the

Agency’s February 9th decision. Mr. Gardner and Ms. Kozlowicz then appealed

the Regional Director’s decision to the IBIA (case no, IBIA 12-044). According

to the Secretary, that appeal remains pending.

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Meanwhile, two of the petitioners, Edson Gardner and Lynda Kozlowicz,

commenced the instant action on August 8, 2011, in federal district court against

the Secretary of the Interior (Kenneth Salazar), initially calling their action a

petition for a writ of habeas corpus. After a December 7, 2011, motion for a

change of venue (which was ultimately denied as moot), Mr. Gardner and

Ms. Kozlowicz filed a motion on April 17, 2012, for relief in the nature of a writ

of mandamus under 28 U.S.C. § 1361. This motion would require the Secretary

to issue a federal corporate charter pursuant to Section 17 of the Indian

Reorganization Act of 1934, 25 U.S.C. § 477, in the name of the “Uinta and

Ouray Allottees Association.”

The matter came before the district court for a hearing on April 25, 2012, at

which time the court dismissed the action sua sponte, with leave to amend the

pleadings within twenty days to allege facts showing the Indian tribal status of the

entity for which a federal corporate charter was sought.

On May 4, 2012, Mr. Gardner and Ms. Kozlowicz, joined by the additional

named plaintiffs, filed an Amended Complaint, setting forth their claim for relief

compelling the issuance of the federal corporate charter, now styled as an action

seeking judicial review of federal administrative action. This was followed by

additional submissions concerning recognized Indian tribal status.

On July 26, 2012, the Secretary filed a motion to dismiss for lack of

jurisdiction and failure to state a claim, accompanied by a supporting

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memorandum. On August 1, plaintiffs filed a memorandum in response, and on

August 13, the Secretary filed a reply. The motion to dismiss was calendared for

a hearing on September 13, 2012, at which time the court heard argument and

took the matter under advisement, awaiting plaintiffs’ supplementation of the

record with additional documents. The parties submitted additional written

materials.

The district court then considered and reviewed all the parties’ written

submissions and the arguments made at the September 13th hearing. The district

court concluded that the plaintiffs seek judicial review of administrative rulings

that are not “final agency action” within the meaning of the Administrative

Procedure Act, 5 U.S.C. § § 701-706, and thus, the plaintiffs’ request for a

judicial remedy may be premature.1

The court initially concluded that, “[a]bsent a showing by the plaintiffs that

the most recent appeal to the IBIA from the Regional Director’s decision has been

finally decided, their request for mandamus relief concerning the Secretary’s

denial of the requested corporate charters is not ripe for judicial review.” Mem.

Op. & Order at 6. The court then gave the plaintiffs twenty days in which to

1

The APA provides that an agency action is “subject to judicial review”

when it is either: (1) “made reviewable by statute,” or (2) a “final agency action

for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Agency

action is final if it marks “the consummation of the agency’s decisionmaking

process” and is “one by which rights or obligations have been determined, or

from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178

(1997) (internal quotation marks omitted).

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submit proof in writing of the final disposition of their most recent appeal to the

IBIA. Absent the submission of that information, the court held that the

Secretary’s motion to dismiss would be granted for lack of ripeness. The

dismissal would be without prejudice.

When the parties failed to satisfy the court as to the status of any pending

matter before the IBIA, the court dismissed the action without prejudice. This

appeal followed.

We find that the district court’s order correctly analyzed and disposed of

the plaintiffs’ claims. We accordingly affirm the district court for substantially

the reasons stated in its orders.

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

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