Gardner v. Duncan

1

EDSON GARDNER and LYNDA KOZLOWICZ-GARDNER, Unlawfully Banished Indians of the Uintah and Ouray Reservation, Petitioners, v. LUKE DUNCAN, Whiteriver Chairman of the Ute Tribe, in his Official Capacities as purported Member of Ute Tribal Business Committee Member, Respondent.

No. 2:20-rf-00809

United States District Court, D. Utah

January 22, 2024

ORDER ADOPTING RECOMMENDATION IN PART

ROBERT J. SHELBY, Chief United States District Judge

The Report and Recommendation issued by United States Magistrate Judge Bennett on October 17, 2023, recommends that the putative Petition for Writ of Habeas Corpus (Petition) and Amended Petition for Writ of Habeas Corpus (Amended Petition) not be filed in this court.^[1]After Magistrate Judge Bennett filed his Report and Recommendation, Petitioners Edson Gardner and Lynda Kozlowicz-Gardner filed an Objection.^[2]

This matter presents a unique situation in that Mr. Gardner, since 2015, has had filing restrictions levied against him. See In re: Edson Gardner, Case no. 2:15-mc-47 DN, Order ECF No. 2. Under these restrictions, any future pleadings Mr Gardner files are considered as follows:

(1) new complaints sent to the court for filing will be collected by the Clerk of Court and sent to a Magistrate Judge for review;

(2) the Magistrate Judge will review the complaint to determine whether it is meritorious, duplicative or frivolous; (3) if the Magistrate Judge determines that the complaint is without merit, duplicative or frivolous, the Magistrate Judge will forward the complaint to the Chief Judge for further review; and (4) only with the consent of the Chief Judge will the complaint be filed.

Id. at p. 1. However, Ms. Lynda Kozlowicz-Gardner does not arrive before this court with similar filing restrictions. In its Discussion section below, the court untethers the parties to determine if the Amended Petition should proceed.

I. BACKGROUND

A. Initial Petition

Mr. Gardner and Ms. Kozlowicz-Gardner filed an initial Petition for Writ of Habeas Corpus on November 17, 2020, pursuant to the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-03. (ECF 1.) Alleging that Mr. Gardner is a Uinta Indian and that Ms. Kozlowicz-Gardner is an Uncompahgre Indian (Id. at 1), they sought to assert five causes of action against Ute Tribal Business Committee Member Luke Duncan relating to his purported orders banishing them from the Uintah and Ouray Indian Reservation and Ute Tribe without due process or equal protection afforded by the Indian Civil Rights Action (ICRA). (Id. at 1-2.) They alleged Mr. Gardner was permanently banished (Id. at 7 ¶ 10 and ECF 1-1), Ms. Kozlowicz-Gardner was banished for five years (ECF 1 at 8 ¶ 11), that their banishments amount to severe restraints on their personal liberty (Id. at 3 ¶ 2) and that there is no process to review the decisions. (Id. at 5 ¶ 6.)

B. Amended Petition

Without any determination from the court as to the viability of the Petition, Mr. Gardner and Ms. Kozlowicz-Gardner filed an Amended Petition on May 20, 2021, again under ICRA § 1303, thus superseding the initial Petition. (ECF 2.) The putative Amended Petition is difficult to decipher. Read closely and liberally construed, the undersigned gleans that Mr. Gardner and Ms. Kozlowicz-Gardner assert they are Uinta and Uncompahgre Indians (Id. at 2 ¶ 2) who have been banished, and that the Ute Business Committee has tried to persuade the Ute Tribal Court to prevent them from filing documents to challenge their disenrollment or banishment. (Id.) Then, according to Petitioners, “.. .the Ute tribal court of Appeals issued a written decision wherein it concluded that the Ute Tribal Court did not have jurisdiction over Petitioners because they were not Indians., nor are they enrolled in a federally recognized Indian Tribe.” (ECF 2 at 5-6 ¶ 11.)

Petitioners' lone claim for relief in the Amended Petition is for a declaration from this court “that the Ute [T]ribal [C]ourt has jurisdiction over [them] and all other Indian individuals who satisfy the definition of Indian under [ICRA].” (ECF 2, pg. 6, para. 14-15, pg. 7, para. 1-2.) Notably, however, the Tenth Circuit found long ago and has repeatedly noted that Gardner is not a member of a federally recognized Tribe:

Edson G. Gardner is no stranger to the federal courts. Over the last several decades, Gardner has filed numerous suits challenging the authority of Utah's state and local governments over both him and his property based on the theory that he is an Indian and therefore entitled to the protections and benefits afforded to members of Indian tribes under federal law. He has pursued these suits despite the fact that nearly thirty years ago, this court held that Gardner is not a member of an Indian tribe.

Gardner v. Long, 2022 WL 1494425, at *1 (10th Cir. May 12, 2022) (citing Gardner v. United States, No. 93-4102, 1994 WL 170780, at *2-5 (10th Cir. May 5, 1994)).

Litigation regarding Gardner's Indian status is a road well-traveled. He does not claim to be a member of a federally recognized tribe. Rather, he claims only to be a descendant of a former member, as are many other Americans. Despite his best efforts in federal, state, and tribal court, this heritage does not entitle him to Indian status whether or not he lives and works on the reservation.

Gardner v. Wilkins, 535 Fed.Appx. 767 at 767-68 (10th Cir. 2013) (citing 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 Fed.Appx. 927 (10th Cir.2002) (unpublished)).

C. The Report and Recommendation

The Magistrate Judge recommended neither the Petition nor Amended Petition should be filed with the court. Noting the review required for Mr. Gardner as a restricted filer, the Magistrate Judge concluded the court lacks jurisdiction under 25 U.S.C. § 1303 to consider a request for habeas corpus relief challenging Mr. Gardner's banishment order because Mr. Gardner has not shown he is in custody or under threat of custody, and is therefore not detained for purposes of habeas relief under ICRA. (ECF 3 at 3 (citing Gardner v. Uintah County, 2011 WL 5834250, at *1 (D.Utah Nov. 18. 2011) (other citations omitted)). Concerning Ms. Kozlowicz-Gardner, the Magistrate Judge interpreted her habeas claim as one challenging Mr. Gardner's banishment, and concluded she lacked standing to vindicate his banishment or had otherwise not stated an injury of her own. (ECF 3 at 3 n.10.) The Magistrate Judge advised the Petitioners of their right to object to the Report and Recommendation, warning objections must be filed within fourteen days, and that failure to object “may constitute waiver of objections upon subsequent review.” (Id. at 4.)

D. Petitioner's Objection

Petitioners promptly filed a “Response to Report and Recommendation for Habeas Corpus on Ute Tribal Banishment.” (ECF 4.) The court construes this filing as a timely-filed Objection. In it, Petitioners make two arguments: 1) the restrictions on Mr. Gardner's filings violate his due process and equal protection rights because they deny him meaningful access to the court (Id. at 2-3, I. Mr. Gardner as Restricted Filer), and 2) Ms. Kozlowicz-Gardner enjoys standing. (Id. at 3-14, II. Ms. Kozlowicz-Gardner Has Standing.) The portion concerning Ms. Kozlowicz-Gardner recites violations before the tribal court she claims give her standing:

1) She was sentenced by a judge lacking “sufficient legal training to preside over criminal proceedings” (Id. at 4, 8), 2) Her “sentence” violates 25 U.S.C. [§] 1303(c)(1) and (2) because she “was not represented by counsel when it was imposed” and denied effective assistance of counsel (Id. at 4, 9-13), and

3) She was denied “equal protection and due process as guaranteed by 25 U.S.C. [§] 1302(a)” based on the foregoing and because she was denied the right to appeal to the Ute Tribal Court (Id. at 4, 14).

II. DISCUSSION

Under Federal Rule of Civil Procedure 72, a party may serve and file “specific written objections” to a magistrate judge's proposed findings and recommendations. Fed.R.Civ.P. 72(b)(2). In turn, the district judge must then “determine de novo any part of the . . . disposition that has been properly objected to,” and may “accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. at (b)(3).

Under the Tenth Circuit's “firm waiver” rule, unless there a timely and specific objection, appellate review of both factual and legal questions has been waived. United States v. One Parcel of Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Although the court may choose not to apply the firm waiver rule “when the interests of justice so dictate,” there is no discernable reason in the record for such a course. Moore, 950 F.2d at 659 (citations omitted) (joining other courts to conclude the firm waiver rule need not apply to pro se litigants who were not advised of the consequences of any failure to object). As noted above, the Magistrate Judge advised the Petitioners of the consequences of any failure to object. And both parties are no stranger to litigation in this court. Thus, the court evaluates the two arguments in Petitioners' Response/Objection to the Magistrate Judge's Report and Recommendation under these standards.

A. Mr. Gardner

Mr Gardner's only specific objection to the Report and Recommendation as to him is that “the court's restricted filer list violates [the] due process clause as imposed upon Mr. Gardner” and “equal protections to federal laws.” (ECF 4 at 2.) While he correctly cites established case law explaining that restrictions on filing ...