Nato Indian Nation v. State of Utah , 76 F. App'x 854 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 8 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
NATO INDIAN NATION,
Plaintiff-Appellant,
v. No. 02-4062
(D. Utah)
STATE OF UTAH, (D.Ct. No. 2:01-CV-802-J)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Nato Indian Nation (Nato) appeals the dismissal of its complaint against the
State of Utah by the United States District Court for the District of Utah. Nato
*
This order and judgment is not binding precedent except under the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.
presents itself as “a sovereign indigenous government, whose citizenship is
comprised of federally supervised and non-federally supervised indigenous
citizens from various [Native American] tribal affiliations . . . .” Apparently,
Nato entered into an “intent to Joint Venture” with a private party regarding a
mineral interest on state land administered by the State of Utah School and
Institutional Trust Lands Administration. 1 When Nato was informed by an officer
from the Trust Lands Administration that another private party claimed ownership
to the mineral interest, it filed this complaint, signed by Henry Clayton, who
listed his capacity as Chief Justice, Ministry of Justice, Western Regional Office,
First Federal District Court, Nato Indian Nation. The complaint alleges the State
of Utah mismanaged school trust lands relating to Nato’s mineral interest. 2
The State filed a motion to dismiss, which the district court granted. The
court held: 1) it lacked subject matter jurisdiction over Nato’s claims under either
28 U.S.C. § 1331 or 28 U.S.C. § 1362; 2) the White Mesa Utes and/or the Skull
Valley Band of Goshutes could seek relief on their own initiative; 3) absent
formal recognition by the Department of the Interior, Nato lacked standing to
assert rights before the court as a recognized Native American Indian tribe; and 4)
1
Other than asserting it is “a sovereign indigenous government,” Nato
provides no indication of its origin or legal status.
2
Nato’s complaint attempted to include potential claims of the White Mesa
Ute Indians and the Skull Valley Band of Goshute Indians concerning interests
wholly unrelated to Nato’s alleged mineral interest.
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the two individuals, Ron Allen and Chief Henry Clayton, who represented Nato at
the hearing on the State’s motion to dismiss were not licensed attorneys and were
not entitled to appear before the court in a representative capacity. The court
later denied Nato’s motion to alter or amend judgment.
On appeal, Nato filed two separate docketing statements and one brief
containing two parts. One docketing statement and the second part of the brief
were authored by Chief Henry Clayton; they address his ability to represent Nato
in court proceedings. The other docketing statement and first part of the brief
were filed and signed by a licensed attorney; they deal with the other issues Nato
raises in this appeal. 3
In response to the docketing statement filed by Chief Henry Clayton, the
State filed a motion to disqualify him from filing pleadings or appearing in
connection with this appeal. We agree with the State; a non-lawyer may not
represent Nato in federal court. 4
Individuals may appear in court pro se, but a corporation, other business
3
Tenth Circuit Rule 3.4(C) states: “An issue not raised in the docketing
statement may be raised in appellant’s opening brief.” Thus, we will address the
issues raised in the part of the brief authored by counsel for Nato even though
they were not contained in the docketing statement filed by counsel.
4
In this motion the State also requests we summarily dispose of the sole
issue raised in the docketing statement filed by Chief Henry Clayton. In light of
our resolution of the issues raised in Nato’s brief below, this aspect of the motion
is denied as moot.
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entity, or non-profit organization may only appear through a licensed attorney.
Harrison v. Wahatoyas, L.L.C., 253 F.3d 552, 556-57 (10th Cir. 2001); Flora
Constr. Co. v. Fireman’s Fund Ins. Co., 307 F.2d 413, 414 (10th Cir. 1962), cert.
denied, 371 U.S. 950 (1963); Strong Delivery Ministry Ass’n v. Bd. of Appeals of
Cook County, 543 F.2d 32, 33 (7th Cir. 1976). See generally Turner v. American
Bar Ass'n, 407 F.Supp. 451, 476 (D. Ala. 1975) (consolidation of cases from
across the nation at the order of Chief Justice Warren E. Burger to address the
issues of pro se representation and the right of unlicensed persons to represent
others); Pilla v. American Bar Ass’n, 542 F.2d 56 (8th Cir.1976). Nato is such an
entity.
Nato filed a consent to allow Chief Henry Clayton to represent it, but that
is of no moment because regulation of practice in the courts is a matter of positive
law, serving societal and systemic needs and transcending the stated preference of
particular litigants, particularly non-individuals. Chief Henry Clayton may not
represent Nato in this appeal; the docketing statement and the portion of the brief
filed by him are struck.
The counseled portion of the brief also claims it was error for the district
court to refuse Chief Henry Clayton's request to represent Nato. It does so in
summary fashion, unburdened by citation of authority or cogent argument, but
merely adopts by reference the arguments of Chief Henry Clayton. Our reasons
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for refusing those filings and arguments in this court apply equally to proceedings
in the trial court. The district judge was correct in refusing to allow non-lawyers
to practice law.
We now address the other issues raised by Nato through counsel. In several
arguments, Nato objects to the manner and scope of the district court's order
dismissing its complaint. It seems to concede a lack of federal question
jurisdiction, but argues that once the district court determined it lacked federal
question jurisdiction it should not have addressed the other issues: Chief Henry
Clayton's representation and Nato’s standing to bring suit as a Native American
Indian tribe. Nato further argues that even if it were proper for the court to
address these issues, the court erred in its determination.
We review de novo the district court’s dismissal of a complaint for lack of
subject matter jurisdiction. Ordinance 59 Ass’n v. United States Dept. of Interior
Secretary, 163 F.3d 1150, 1152 (10th Cir. 1998). Nato's complaint asserts the
federal district court has jurisdiction under 28 U.S.C. § 1362 and 28 U.S.C. §
1331. “[B]oth § 1362 and § 1331 require that the matter in controversy be one
arising under the Constitution, laws, or treaties of the United States.” Mescalero
Apache Tribe v. Martinez, 519 F.2d 479, 480 (10th Cir. 1975). 5 But the
5
28 U.S.C. § 1331 states: “The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.” And 28 U.S.C. § 1362 provides: “The district courts shall
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jurisdictional ground is more fertile for recognized Indian tribes because of treaty,
tribal and other federally derived rights. Accordingly, it was not error for the
district court to inquire into Nato's status, and it was correct in determining Nato
had no recognized status. The record reveals no qualifying facts as dictated by 28
U.S.C. § 1362. That resolved, we now turn to the more general federal question
issue.
As best we can determine from the pleadings and briefs, Nato’s action is
akin to a quiet title action. It complains that the state failed to determine or
improperly determined the correlative rights of claimants to interests derived from
a state mineral lease of state resources. 6 Those allegations do not present a
controversy arising under the Constitution, laws or treaties of the United States, 7
and it readily appears that allowing an opportunity to amend would have been
futile. See Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir.), cert. denied, 534
have original jurisdiction of all civil actions, brought by any Indian tribe or band
with a governing body duly recognized by the Secretary of the Interior, wherein
the matter in controversy arises under the Constitution, laws, or treaties of
the United States.” (Emphasis supplied.)
Since Nato does not describe its legal status (merely alleging it is “a
6
sovereign indigenous government”) it is impossible to know whether it has the
legal capacity to contract or otherwise hold property.
We also agree with the district court’s determination that the purported
7
grievances of the individual tribes listed in Nato’s complaint were not properly
brought by Nato. Further, Nato has failed to raise any argument regarding this
issue in its opening brief, and as a consequence, it is waived. State Farm Fire &
Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).
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U.S. 922 (2001).
We AFFIRM the district court’s dismissal of Nato’s complaint for lack of
subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1362, its determination
that Nato is not an “Indian tribe or band with a governing body duly recognized
by the Secretary of the Interior,” and its refusal to allow Chief Henry Clayton to
represent Nato in court proceedings.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
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