richmond v. wampanoag tribal court cases 1159...richmond v. wampanoag tribal court cases1161 cite as...

1159RICHMOND v. WAMPANOAG TRIBAL COURT CASESCite as 431 F.Supp.2d 1159 (D.Utah 2006)

Curtis RICHMOND, Plaintiff,

v.

WAMPANOAG TRIBAL COURTCASES: Case: 2005–301–EFS; Case2005–302–BOA; Case 2005–300–CB,Defendants.

No. 2:06–CV–15BSJ.

United States District Court,D. Utah,

Central Division.

April 21, 2006.Background: Following dismissal of hispetition for a writ of mandamus, plaintiff,proceeding pro se, moved for leave toamend.Holding: The District Court, Jenkins,Senior District Judge, held that proposedamendment would be futile.Motion denied.

1. Indians O2Pursuant to its plenary power rooted

in the Indian Commerce Clause, Congresshas the power, both directly and by dele-gation to the President, to establish thecriteria for recognizing an Indian tribe.U.S.C.A. Const. Art. 1, § 8, cl. 3.

2. Indians O2Interior Department’s list of federally

recognized tribal governments in the Unit-ed States may be decisive of the existenceof a federal-tribal government-to-govern-ment relationship.

3. Federal Civil Procedure O851Proposed amendment to petition for

writ of mandamus, to require certain fed-eral officers to enforce orders of purportedIndian tribal courts requiring dismissal ofproceedings against petitioner in two statecourts and a district court, would be futile;named officers had no non-discretionaryduty to enforce tribal court orders, manda-mus was not available, in the absence ofsuch duty, to compel enforcement of such

orders, and there was no basis for anygrant of extraordinary equitable relief va-cating orders of or mandating dismissals inactions filed in those courts.

4. Federal Civil Procedure O851Although leave to amend pleadings is

to be freely given, and pro se litigants areto be given reasonable opportunity to rem-edy the defects in their pleadings, a dis-trict court may deny leave to amend whereamendment would be futile. Fed.RulesCiv.Proc.Rule 15(a), 28 U.S.C.A.

5. Indians O4, 32(7)Officers of the United States govern-

ment have no nondiscretionary, plainly de-fined, peremptory and affirmative legalduty to enforce the lawful orders or judg-ments of an Indian tribal court.

6. Indians O27(1)An Indian tribe itself may remain im-

mune from suit for activities conductedoutside of its own territory, but tribal im-munity does not extend to shield individualmembers from the legal consequences oftheir own private off-reservation activities.

7. Federal Courts O195 Indians O27(3)

Federal district courts may exercisejurisdiction over cases or controversies in-volving Indian tribal members and arisingout of off-reservation activities, to thesame extent as would be true of non-Indian litigants under the applicable ‘‘fed-eral question’’ and ‘‘diversity’’ jurisdiction-al statutes, subject to the non-jurisdiction-al requirement that the parties to any casesubject to tribal jurisdiction must exhausttheir tribal remedies before turning to thefederal courts for relief. 28 U.S.C.A.§§ 1331, 1332.

8. Indians O27(2)Federal jurisdiction may extend to

controversies involving Indian tribal mem-

1160 431 FEDERAL SUPPLEMENT, 2d SERIES

bers or their interests in property locatedin Indian country, in an appropriate case.

9. Indians O27(3)Even where a lawsuit arises from an

Indian tribe or tribal entity’s off-reserva-tion activities, exhaustion of tribal reme-dies may be required.

10. Federal Courts O1149.1Generally, a federal district court is

without jurisdiction to afford relief from amandatory injunction issued from a federaldistrict court sitting in another circuit.

11. Federal Courts O1151Federal courts may entertain actions

seeking relief from a civil judgment issuedby another federal court in cases of fraud,accident, or mistake, or when equitablerelief is otherwise warranted.

12. Courts O508(1)Under the Anti–Injunction Act, a fed-

eral court may not grant an injunction tostay proceedings in a state court except asexpressly authorized by Act of Congress,or where necessary in aid of its jurisdic-tion, or to protect or effectuate its judg-ments. 28 U.S.C.A. § 2283.

Curtis Richmond, Solana Beach, CA, prose.

MEMORANDUM OPINION & ORDER

JENKINS, Senior District Judge.

The above-captioned proceeding is nowbefore the court on Curtis Richmond’s mo-tion to amend his pleadings following thiscourt’s dismissal of his original petition fora writ of mandamus. See Fed.R.Civ.P.15(a).Procedural History

Plaintiff Curtis Richmond commencedthe above-captioned action by filing a docu-ment captioned as a ‘‘Writ of MandamusConfirming Pembina Nation Little Shell

Calif. Federal Tribal Circuit Court Or-dered Writ of Mandamus so Law Enforce-ment Must Obey Lawful Tribal Court Or-ders Supported by U.S. Supreme CourtRulings,’’ on January 5, 2006 (dkt. no. 1).But Richmond did not name any federalgovernment officer or other person, offi-cer, corporation, or inferior court as arespondent to his petition and againstwhom relief in the nature of mandamuswould lie.

Because this court was not satisfied thatRichmond had properly invoked the sub-ject matter jurisdiction of this court incommencing this action without naming arespondent, it dismissed his petition forlack of subject-matter jurisdiction pursu-ant to Fed.R.Civ.P. 12(h)(3) (‘‘[w]henever itappears by suggestion of the parties orotherwise that the court lacks jurisdictionof the subject matter, the court shall dis-miss the action.’’). (See Order of Dismiss-al, filed February 23, 2006 (dkt. no. 6).)

On March 6, 2006, Richmond filed anamended petition for a writ of mandamus(dkt. no. 7). The court struck that plead-ing because of Richmond’s failure to obtainleave of court to amend his pleadings.(See Order, filed March 7, 2006 (dkt. no.9).)

On March 14, 2006, Richmond filed a‘‘Motion for Leave of Court to Amend Writof Mandamus to Conform with SubjectMatter Jurisdiction Issues Covered inCourt Order to Dismiss Without Preju-dice’’ (dkt. no. 11) (‘‘Mot. To Amend’’),followed by an ‘‘Addendum or Supplementto Plaintiff’s Motion for Leave to Amend,’’& etc., filed March 30, 2006 (dkt. no. 12)(‘‘Addendum’’). Richmond has submittedadditional papers as well.

Richmond’s proposed amended writ peti-tion names several federal officers as re-spondents: the Attorney General of theUnited States, the Director of the FederalBureau of Investigation, the United StatesAttorney for the Southern District of Cali-


fornia, United States Marshal David McAl-lister, and ‘‘F.B.I. Agent Mario Ruiz.’’ Itappears to seek relief in the nature of awrit of mandamus compelling the respon-dents to ‘‘Obey their Oath of Office toSupport and Defend the U.S. Constitu-tion,’’ including ‘‘Obeying Judge HenryLee Norman Anderson’s Writ of Manda-mus.’’ (Mot. to Amend at 3.) In Rich-mond’s view, ‘‘This Court has a Duty andObligation to Confirm Judge Anderson’sLawful and Enforceable Writ of Manda-mus.’’ (Id. at 3–4.)

The referenced ‘‘Writ of Mandamus’’ ap-pears to be captioned in the ‘‘PembinaNation Little Shell California FederalTribal Circuit Court’’ and purports to ad-dress ‘‘three major legal issues,’’ including‘‘Sovereignty of Indian Tribes’’ and wheth-er ‘‘Non Indians must obey Indian CourtOrders,’’ whether ‘‘All Lawful Judges musthave Judicial Oaths on File,’’ and ‘‘Malfea-sance of a Judicial Oath occurs if a Judgedoes not Obey his Judicial Oath.’’ (‘‘Writ ofMandamus,’’ dated December 20, 2005, acopy of which in annexed to Mot. toAmend.) It appears to confirm that ‘‘judg-ments of ‘courts of common justice’ arevalid, real, and enforceable,’’ apparentlyreferring to orders of the ‘‘Supreme CourtWampanoag Tribe of Grayhead WolfBand’’ directed to two state superior courtand federal district judges in Californiaconcerning pending litigation involvingRichmond. Those orders purport to dis-miss the cases pending against Richmondin the California state and federal courts(and Third District Court in the State ofUtah) for lack of jurisdiction, ostensibly on

the theory that ‘‘[t]he Supreme Court ofWampanoag Tribe of Greyhead Wolf Bandhas Jurisdiction over all Tribal Mem-bers’’—including Richmond as an‘‘adopted’’ member—and that those courtshave shown ‘‘Bias towards the Plaintiff’’and have violated ‘‘the Plaintiff’s Constitu-tional Right of Due Process.’’ 1

Richmond’s Theory of the Case

To date, Richmond has submitted atleast a dozen papers in this case, proffer-ing numerous quotations extracted fromjudicial opinions—often Nineteenth–Centu-ry Supreme Court cases published in theearlier volumes of the United States Re-ports—as well as law dictionaries, ency-clopedias, and federal and state code provi-sions. The quotations speak to variousaspects of Indian tribal status, the jurisdic-tion of state and federal courts, and therule of law. Richmond weaves the select-ed quotations into a rambling and circu-itous dissertation, rich in sweeping ab-stractions phrased in oft-capitalized andabstruse legalistic prose.

As best the court can glean from thepapers now in the file, Richmond contendsthat federal law principles of Indian tribalsovereignty 2 empower the ‘‘SupremeCourt of Wampanoag Tribe of GreyheadWolf Band’’ to enter orders preemptingthe exercise of civil jurisdiction by stateand federal courts over his person andproperty in cases already commenced inthose courts by Citibank, Bank of America,and others, and that it may do so in favorof compulsory adjudication of those par-ties’ claims in the tribal forum. The ‘‘Su-preme Court of Wampanoag Tribe of

1. (‘‘Order, Case No.2005–301–EFS,’’ datedApril 8, 2005, a copy of which is annexed to‘‘Writ of Mandamus Confirming Pembina Na-tion Little Shell Calif. Federal Tribal CircuitCourt Ordered Writ of Mandamus so LawEnforcement Must Obey Lawful Tribal CourtOrders Supported by U.S. Supreme CourtRulings,’’ filed January 5, 2006 (dkt. no. 1).)

2. As the Supreme Court has often noted, ‘‘In-dian tribes occupy a unique status under ourlaw,’’ and ‘‘retain some of the inherent pow-ers of the self-governing political communitiesthat were formed long before Europeans firstsettled in North America.’’ National FarmersUnion Ins. Cos. v. Crow Tribe, 471 U.S. 845,851, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)(footnotes omitted).


Greyhead Wolf Band’’ having issued suchorders, and the ‘‘Pembina Nation LittleShell California Federal Tribal CircuitCourt’’ having issued a December 20, 2005writ confirming that the former court’sorders are ‘‘valid, real, and enforceable,’’Richmond further contends that thenamed federal officers are duty-bound to‘‘enforce’’ those orders, including ‘‘benchwarrants’’ and awards of sanctions of$1,000 per day as against each of the de-fendants named in the tribal proceedingsbecause ‘‘[t]he defendants must know thatTribal members have absolute sovereignauthority’’—and, it seems, absolute immu-nity from the civil jurisdiction of state andfederal courts. Failing this, the respon-dents would ‘‘stand convicted of treasonfor failure to honor and enforce the spiritand letter of law.’’ 3

Richmond further asserts that this courtmay—indeed, must—grant relief in the na-ture of a writ of mandamus requiring theAttorney General of the United States, theDirector of the Federal Bureau of Investi-gation, the United States Attorney for theSouthern District of California, and vari-ous federal law enforcement officers to dothe bidding of the ‘‘Supreme Court ofWampanoag Tribe of Greyhead WolfBand’’ and carry that tribunal’s orders intofull force and effect, as well as vacatingany orders or judgments entered by thestate and federal courts in the subjectproceedings since the tribal orders wereissued.The Enforcement of Orders of IndianTribal Courts

[1] Richmond’s proposed pleadingseeks an order of this court decreeing theenforcement of orders issued by the ‘‘Su-preme Court of Wampanoag Tribe ofGreyhead Wolf Band,’’ and in doing so, heraises the threshold question whether that

tribunal possessed the requisite subjectmatter and personal jurisdiction to makethose orders:

We are unwilling to enforce judgmentsof tribal courts acting beyond their au-thority, especially where defendantshave a federal right ‘‘to be protectedagainst an unlawful exercise of TribalCourt judicial power,’’ Nat’l Farmers,471 U.S. at 851, 105 S.Ct. 2447, 85L.Ed.2d 818; see Wilson, 127 F.3d at810 (holding that ‘‘federal courts mustneither recognize nor enforce tribaljudgments if: (1) the tribal court did nothave both personal and subject matterjurisdiction; or (2) the defendant wasnot afforded due process of law’’).

MacArthur v. San Juan County, 309 F.3d1216, 1225 (10th Cir.2002) (quoting Wilsonv. Marchington, 127 F.3d 805, 810 (9thCir.1997)), cert. denied, 539 U.S. 902, 123S.Ct. 2246, 156 L.Ed.2d 110 (2003). InMacArthur, the court of appeals explained,‘‘The threshold question in our review ofthe Navajo court judgment is whether theNavajo Nation’s decision to exercise adju-dicative power over [the non-member de-fendants] passes muster under Montana,’’the leading Supreme Court precedent gov-erning the exercise of tribal civil jurisdic-tion over non-members. Id. at 1226 (citingMontana v. United States, 450 U.S. 544,101 S.Ct. 1245, 67 L.Ed.2d 493 (1981)).

That jurisdictional question in turn isfooted upon an even more fundamentalpremise: the actual existence of the Indi-an tribe whose authority the tribal courtspurport to exercise, and federal recogni-tion of tribal existence.Indian Tribal Sovereignty & FederalRecognition of Indian Tribes

Normally, in cases involving tribal courtjurisdiction, there is no genuine doubt as

3. (‘‘Writ of Mandamus,’’ dated December 20,2005, a copy of which in annexed to Mot. to

Amend, at 3.)


to the existence and legal status of theIndian tribe whose powers of self-govern-ment are being exercised through the in-strumentality of its courts.

Historically, the federal governmenthas determined that certain groups ofIndians will be recognized as tribes forvarious purposes. Such determinationsare incident to the Indian CommerceClause of the Constitution, which ex-pressly grants Congress power ‘‘[t]oregulate Commerce TTT with the Indiantribes.’’

When Congress or the Executive hasfound that a tribe exists, courts will notnormally disturb such a determina-tionTTTT

Felix S. Cohen’s Handbook of Federal In-dian Law 3 (Rennard Strickland, et al.,eds. 1982) (‘‘Handbook (1982 ed.)’’) (foot-note omitted). ‘‘For most current pur-poses, judicial deference to findings oftribal existence is still mandated by the ex-tensive nature of congressional power inthe field. Congress has implicitly recog-nized the existence of most tribes throughtreaties, statutes, and ratified agree-ments.’’ Id. at 3–4 (footnote omitted). Inaddition, ‘‘[t]he Executive also makes suchdeterminations pursuant to statutoryschemes’’ created by Congress, and theSecretary of the Interior, ‘‘when discharg-ing congressionally delegated duties as theofficial principally responsible for adminis-tering Indian affairs, often decides thatcertain groups are Indians or tribes forthe purpose of various statutory pro-grams.’’ Id. at 4 (footnote omitted).

As the court of appeals recently ex-plained:

The law governing Federal recogni-tion of an Indian tribe is, today, clear.The Federally Recognized Indian Tribe

List Act of 1994 provides Indian tribesmay be recognized by: (1) an ‘‘Act ofCongress;’’ (2) ‘‘the administrative pro-cedures set forth in part 83 of the Codeof Federal Regulations[;]’’ or (3) ‘‘a deci-sion of a United States court.’’ Pub.L.No. 103–454, § 103(3), 108 Stat. 4791;see also United Tribe of Shawnee Indi-ans v. United States, 253 F.3d 543, 547–48 (10th Cir.2001). A recognized tribe isplaced on the DOI’s ‘‘list of recognizedtribes[.]’’ 25 U.S.C. §§ 479a(3), 479a–1;25 C.F.R. § 83.5(a).

Cherokee Nation of Oklahoma v. Norton,389 F.3d 1074, 1076 (10th Cir.2004), asamended (10th Cir. Feb. 16, 2005),4 cert.denied, ––– U.S. ––––, 126 S.Ct. 333, 163L.Ed.2d 46 (2005).

Judicial deference to the Legislative andExecutive branches concerning the recog-nition of Indian tribes is a policy of longstanding:

In reference to all matters of this kind,it is the rule of this court to follow theaction of the executive and other politi-cal departments of the government,whose more special duty it is to deter-mine such affairs. If by them thoseIndians are recognized as a tribe, thiscourt must do the same.

United States v. Holliday, 70 U.S. (3Wall.) 407, 419, 18 L.Ed. 182 (1866). Pur-suant to its plenary power rooted in theIndian Commerce Clause, among othersources, ‘‘Congress has the power, bothdirectly and by delegation to the Presi-dent, to establish the criteria for recogniz-ing a tribe.’’ Miami Nation v. UnitedStates Dep’t of Interior, 255 F.3d 342, 345(7th Cir.2001).5

‘‘In light of the deference given to con-gressional and executive determinations in

4. Available at http://www.kscourts.org/ca10/cases/2004/11/03–5055a.htm.

5. Congress has approved a variety of mecha-nisms by which Indian nations can securefederal recognition, including determinationsby legislative, executive and judicial bodies.


this area,’’ one noted commentary ob-serves, it would appear that ‘‘the onlypractical limitations on congressional andexecutive decisions as to tribal existenceare the broad requirements that: (a) thegroup have some ancestors who lived inwhat is now the United States before dis-covery by Europeans, and (b) the group bea ‘people distinct from others.’ ’’ Cohen’sHandbook of Federal Indian Law§ 3.02[4], at 143 (2005 ed. Nell JessupNewton, et al., eds.) (‘‘Handbook (2005ed.)’’) (footnote omitted). Yet the authori-ty of the political branches of the federalgovernment over questions of Indian tribalstatus and recognition is not without ra-tional limits:

Of course, it is not meant by this thatCongress may bring a community orbody of people within the range of thispower by arbitrarily calling them an In-dian tribe, but only that in respect ofdistinctly Indian communities thequestions whether, to what extent, andfor what time they shall be recognizedand dealt with as dependent tribes re-quiring the guardianship and protectionof the United States are to be deter-mined by Congress, and not by thecourts. United States v. Holliday, 3Wall. 407, 419, 18 L.Ed. 182,TTTT

United States v. Sandoval, 231 U.S. 28, 46,34 S.Ct. 1, 58 L.Ed. 107 (1912) (emphasisadded; some citations omitted).

Federal recognition of Indian tribal exis-tence is a matter of great importance tothe ‘‘distinctly Indian communities’’ in-volved:

The significance of the question is im-mediately apparent from the text of theIndian Commerce Clause of the United

States Constitution, which gives Con-gress power ‘‘[t]o regulate CommerceTTT with the Indian Tribes.’’ U.S.Const., Art. I, § 8, cl. 3. (emphasis add-ed). Much of the theory that underpinsIndian law is that the Indian tribes pos-sessed certain sovereign rights based ontheir existence as distinct political enti-ties exercising authority over theirmembers prior to the incorporation oftheir territory into the United States,United States v. Wheeler, 435 U.S. 313,322, 98 S.Ct. 1079, 55 L.Ed.2d 303(1978); thus, ‘‘tribes retain whatever in-herent sovereignty they had as the origi-nal inhabitants of this continent to theextent that sovereignty has not beenremoved by Congress.’’ Montana v.Gilham, 133 F.3d 1133, 1137 (9th Cir.1998).

Despite this general recognition of in-herent sovereignty (and, perhaps, theirony), as far as the federal governmentis concerned, an American Indian tribedoes not exist as a legal entity unlessthe federal government decides that itexists. Federal recognition affords im-portant rights and protections to Indiantribes, including limited sovereign immu-nity, powers of self-government, theright to control the lands held in trustfor them by the federal government, andthe right to apply for a number of feder-al services. ‘‘Federal recognition mayarise from treaty, statute, executive oradministrative order, or from a course ofdealing with the tribe as a political enti-ty.’’ William C. Canby, Jr., AmericanIndian Law in a Nutshell 4 (4thed.2004).

Kahawaiolaa v. Norton, 386 F.3d 1271,1272–73 (9th Cir.2004) (footnote omitted).

Throughout the history of tribal-federal rela-tions, all three mechanisms have been em-ployed. In addition, court decisions have op-erated to interpret and affirm the actions ofthe political branches.

Cohen’s Handbook of Federal Indian Law§ 3.02[4], at 143 (2005 ed. Nell Jessup New-ton, et al., eds.) (footnote omitted).


The Interior Department regulations gov-erning federal recognition and acknowl-edgment of tribal status reflect a similarview of its significance:

Acknowledgment of tribal existence bythe Department is a prerequisite to theprotection, services, and benefits of theFederal government available to Indiantribes by virtue of their status as tribes.Acknowledgment shall also mean thatthe tribe is entitled to the immunitiesand privileges available to other federal-ly acknowledged Indian tribes by virtueof their government-to-government rela-tionship with the United States as wellas the responsibilities, powers, limita-tions and obligations of such tribes. Ac-knowledgment shall subject the Indiantribe to the same authority of Congressand the United States to which otherfederally acknowledged tribes are sub-jected.

25 C.F.R. § 83.2 (2006). Federal recogni-tion thus has important implications forthe legal status of Indian tribes and therespective jurisdiction of federal, state andtribal governments over tribal membersand non-members within the tribe’s do-main. See Handbook (2005 ed.) § 3.02[3],at 138–40 & nn. 19–30.

Federal Recognition & the Interior De-partment List of Indian Entities

Today ‘‘[t]here are 561 federal recog-nized tribal governments in the UnitedStates,’’ according to the Bureau of IndianAffairs,6 with several additional groupscurrently petitioning for federal acknowl-edgment through the procedure estab-lished by congressional legislation and fed-eral regulations.7 Pursuant to the dutiesassigned and authority delegated to it by

Congress,8 the Interior Department main-tains a complete list of all 561 ‘‘IndianEntities Recognized and Eligible to Re-ceive Services from the United States Bu-reau of Indian Affairs,’’ updated everyyear or two and published in the FederalRegister. See 70 Fed.Reg. 71193 (Novem-ber 25, 2005).

James v. United States Dep’t of Health& Human Services, 824 F.2d 1132(D.C.Cir.1987), involved an intra-tribal ri-valry between two factions of the GayHead Indians of Martha’s Vineyard, Mas-sachusetts, which had not been recognizedas a tribe when the acknowledgment regu-lations were first promulgated. One fac-tion, the Widdis group, followed the ac-knowledgment procedures, filed a petitionwith the Department of Interior, and wasrecognized in 1987. The other faction, theJames group, contended that the GayHead Indians had been recognized at leastsince the Nineteenth Century and there-fore sought a court order placing the tribeon the Department of Interior’s list ofrecognized tribes. The D.C. Circuit de-clined to decide whether the evidence ofhistorical recognition presented by theJames group supported their claim, rea-soning that Congress has specifically au-thorized the Executive Branch to decideissues of tribal recognition, and that theInterior Department has developed proce-dures for the determination of tribal sta-tus. ‘‘That purpose would be frustrated ifthe Judicial Branch made initial determi-nations of whether groups have been rec-ognized previously or whether conditionsfor recognition currently exist.’’ Id. at1137.

[2] In this Circuit, the Interior Depart-ment list may be decisive of the existence

6. http://www.doi.gov/bureau-indian-af-fairs.html.

7. See 25 C.F.R. Part 83 (2005).

8. See Federally Recognized Indian Tribe ListAct of 1994, Act of November 2, 1994, Pub.L.103–454, § 104, 108 Stat. 4791, codified at 25U.S.C.A. § 479a–1 (2001); 25 U.S.C.A. §§ 2, 9(2001).


of a federal-tribal ‘‘government-to-govern-ment’’ relationship:

The judiciary has historically deferredto executive and legislative determina-tions of tribal recognition. See UnitedStates v. Rickert, 188 U.S. 432, 445, 23S.Ct. 478, 483, 47 L.Ed. 532 (1903);United States v. Holliday, 70 U.S. (3Wall.) 407, 419, 18 L.Ed. 182 (1865).Although this deference was originallygrounded in the executive’s exclusivepower to govern relations with foreigngovernments, broad congressional powerover Indian affairs justifies its continua-tion. We therefore conclude that theTribe’s absence from this list is disposi-tiveTTTT

Western Shoshone Bus. Council v. Babbitt,1 F.3d 1052, 1057 (10th Cir.1993) (empha-sis added & citation omitted) (citing Ed-wards, McCoy & Kennedy, 18 I.B.I.A. at457 (stating that 25 C.F.R. pt. 83 proce-dures ‘‘are binding on the Department ofthe Interior as to which Indian entitiesmay be considered Indian tribes under

statutes and regulations which do not de-fine the term ‘Indian tribe.’ ’’)). Rejectingthe assertion that the plaintiff group hadbeen ‘‘federally recognized’’ under thestandards outlined in Montoya v. UnitedStates, 180 U.S. 261, 36 Ct.Cl. 577, 21 S.Ct.358, 45 L.Ed. 521 (1901),9 the court ofappeals ‘‘conclude[d] that the limited cir-cumstances under which ad hoc judicialdeterminations of recognition were appro-priate have been eclipsed by federal regu-lation.’’ Id. at 1056. But cf. UnitedTribe of Shawnee Indians v. UnitedStates, 253 F.3d 543, 547 (10th Cir.2001)(noting that 25 U.S.C. § 479a provides In-dian tribes may be recognized by Acts ofCongress, by administrative proceduresset forth in the regulations, ‘‘or by a deci-sion of a United States court’’).

While the court of appeals has sinceexpressed the view that Western Shoshone‘‘does not apply to preexisting Indianrights recognized and guaranteed by atreaty, statute, or executive order’’ such ashunting, fishing and gathering rights on an

9. Montoya, a case repeatedly cited by Rich-mond, decided whether a group comprised ofnearly 200 Indians from the Chiricahua, Mes-calero, and Southern Apache tribes as well as‘‘a number of unknown Indians from Mexi-co,’’ who were ‘‘allied together under thename of Victoria’s band for the purpose ofaiding Victoria and his followers in their hos-tile and warlike acts against the citizens andthe military authorities of the United States,’’would be considered part of the MescaleroApache Tribe for purposes of determiningboth ‘‘the liability of the United States for theacts of Indian marauders’’ and that of ‘‘thetribe of Indians committing the wrong, whensuch can be identified,’’ under the IndianDepredations Act of 1891, Act of March 3,1891, ch. 538, 26 Stat. 851.

By a ‘tribe’ we understand a body of Indi-ans of the same or a similar race, united ina community under one leadership or gov-ernment, and inhabiting a particularthough sometimes ill-defined territory; by a‘band,’ a company of Indians not necessari-ly, though often, of the same race or tribe,

but united under the same leadership in acommon design. While a ‘band’ does notimply the separate racial origin characteris-tic of a tribe, of which it is usually anoffshoot, it does imply a leadership and aconcert of action. How large the companymust be to constitute a ‘band’ within themeaning of the act it is unnecessary todecide. It may be doubtful whether it re-quires more than independence of action,continuity of existence, a common leader-ship, and concert of action.

180 U.S. at 266, 21 S.Ct. 358. The MontoyaCourt concluded that ‘‘Victoria’s Band’’ waslegally distinguishable from the MescaleroApache Tribe, which was ‘‘in amity with theUnited States,’’ and that the tribe should notbe held liable for the band’s actions: ‘‘if themarauders are so numerous and well orga-nized as to be able to defy the efforts of thetribe to detain them, in other words, to makethem a separate and independent band, carry-ing on hostilities against the United States, itwould be obviously unjust to hold the triberesponsible for their acts.’’ Id. at 268, 21S.Ct. 358.


existing Indian reservation, TimpanogosTribe v. Conway, 286 F.3d 1195, 1204 (10thCir.2002), we are not concerned in thiscase with Indian tribal property interestsor rights to use natural resources. Cf.Menominee Tribe of Indians v. UnitedStates, 391 U.S. 404, 88 S.Ct. 1705, 20L.Ed.2d 697 (1968) (holding that Indiantribe’s treaty hunting rights survived con-gressional termination federal recognitionof Indian tribe); Kimball v. Callahan, 493F.2d 564 (9th Cir.), cert. denied, 419 U.S.1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1974)(same); Kimball v. Callahan, 590 F.2d 768(9th Cir.), cert. denied, 444 U.S. 826, 100S.Ct. 49, 62 L.Ed.2d 33 (1979) (same);United States v. Felter, 546 F.Supp. 1002(D.Utah 1982), affirmed 752 F.2d 1505(10th Cir.1985) (recognizing terminated In-dians’ hunting rights on Indian reservationlands).

We are concerned here with Richmond’splea that this court order the summaryenforcement by federal officers of whatpurport to be Indian tribal court ordersdemanding the dismissal of civil actions inthe state and federal courts involving Mr.Richmond.Federal Recognition & Richmond’sClaims in This Case

In this case, Richmond submits that the‘‘Wampanoag Tribe of Greyhead WolfBand’’ and ‘‘Pembina Nation Little ShellBand’’ are federally recognized Indiantribes. But at least as of its November 25,

2005 publication, neither group appears byname on the Interior Department’s list offederally recognized Indian tribes. See 70Fed.Reg. at 71193–71198.

Richmond’s papers point to other indiciaof federal recognition, including the Treatywith the Chippewa, Red Lake and Pembi-na Bands, dated October 2, 1863, 13 Stat.667, the Presidential Message transmittingthat treaty to the Senate for ratification,compiled excerpts from historical congres-sional and executive documents,10 the Mon-tana Supreme Court’s opinion in Koke v.Little Shell Tribe of Chippewa Indians ofMontana, Inc., 2003 MT 121, 315 Mont.510, 68 P.3d 814, a page printed from a‘‘Pembina Nation Little Shell Band’’ Website,11 and assorted correspondence.

The Koke case involved a group knownas the Little Shell Tribe of Chippewa Indi-ans of Montana, Inc., incorporated underthe laws of the State of Montana andactively seeking federal recognitionthrough the acknowledgment procedureestablished by Congress and the Depart-ment of the Interior. See U.S. Dept. ofthe Interior, Bureau of Indian Affairs,Proposed Finding for Federal Acknowl-edgment of the Little Shell Tribe of Chip-pewa Indians of Montana, 65 Fed.Reg.45394 (July 21, 2000). Koke makes noreference to the ‘‘Pembina Nation LittleShell Band,’’ a group which appears to becentered in North Dakota 12 and claims aterritory of 62,000,000 acres—including

10. The partial compilation attached to Rich-mond’s ‘‘Supplement to Plaintiff’s Motion forLeave to Amend Writ of Mandamus to Con-form with Subject Matter Jurisdiction,’’ filedApril 7, 2006 (dkt. no. 13), appears to havebeen copied from a Native American Website. See ‘‘Old Crossing treaty with the RedLake and Pembina Bands of Chippewa,’’ athttp:// www.maquah.net/Historical/1863/1863–1864treaty–INDEX.html.

11. See http://www.pembinanation1863.com/.This group appears to be governed by a‘‘Grand Council’’ comprised of members of

the family of Ronald Delorme, ‘‘hereditarychief of the Little Shell Band of Indians ofNorth Dakota.’’ 354 F.3d at 811.

12. According to Richmond’s exhibit, ‘‘TheGrand Council of 1863, the governing groupfor the Pembina Nation Little Shell Band, liveprimarily in so-called north central North Da-kota.’’ (‘‘Welcome to the Pembina NationLittle Shell Band of North America,’’ athttp://www.pembinanation1863.com/de-fault.asp, a copy of which is annexed to‘‘Plaintiff’s Supplement to Plaintiff’s Motionfor Leave to Amend Writ of Mandamus to


about three-fourths of the State of NorthDakota.

In Delorme v. United States, 354 F.3d810 (8th Cir.2004), the Eighth Circuit out-lined the distinction between the twogroups:

At least two groups currently claim tobe Little Shell Bands descended fromthe Pembina led by Chief Little Shell inthe late nineteenth century. The LittleShell Band of Chippewa Indians ofNorth Dakota (also known as the LittleShell Pembina Band of North America)is a federally unrecognized band locatedin North Dakota. It is seeking federalrecognition through the BIA, and it is onbehalf of this band that Ronald Delormehas filed his action. It is not clear,however, how this group relates to theLittle Shell Bands involved in the 1978Indian Claims Commission litigation.The Little Shell Tribe of Chippewa Indi-ans of Montana, located in Great Falls,Montana, descends from a part of thePembina Band led by Chief Little Shellwhich moved to that area at the end ofthe nineteenth century. The MontanaTribe appears to be the successor ininterest to the Little Shell Band of Chip-pewa Indians represented by Joseph H.Dussome in the 1970s Indian ClaimsCommission litigation, and its membersappear to have participated as individu-als in the earlier litigation as well.Presently the Band is seeking federalrecognition through the BIA, and it isnot involved in the case before the court.

354 F.3d at 814 n. 6.Citing to Koke and Montoya v. United

States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21S.Ct. 358, 45 L.Ed. 521 (1901), Richmondasserts that the ‘‘Wampanoag Tribe ofGreyhead Wolf Band’’ is ‘‘Common LawOrganized,’’ and that ‘‘the Tribe’s National

Sovereignty TTT is Recognized by the U.S.Supreme Court Rulings.’’ 13 But he nei-ther cites to nor furnishes copies of anytreaties, statutes, court decisions, adminis-trative rulings or other pertinent materialsreflecting any recognition of a groupknown as the ‘‘Wampanoag Tribe of Grey-head Wolf Band’’ by Congress, the Execu-tive Branch or the federal or state courts.Instead, he submits an April 8, 2002 letteraddressed to ‘‘Chief Dale Stevens’’ of the‘‘Wampanoag Tribe of Greyhead WolfBand’’ at an address in Vernal, Utah, fromsomeone identified as ‘‘Chief Counsel’’ ofthe ‘‘Ministry of Justice’’ of the ‘‘NATOIndian Nation,’’ having an address in Pro-vo, Utah. The letter purports to ‘‘recog-nize[ ] the Wampanoag Nation, Tribe ofGreyhead, Wolf Band’’ and establish ‘‘gov-ernment-to-government’’ relations with theWampanoag. (Unauthenticated copy ofletter annexed to Mot. to Amend.)

Richmond’s written submissions furnishbut a very slender reed upon which to resthis sweeping assertions as to the existence,sovereignty and jurisdiction of either the‘‘Wampanoag Tribe of Greyhead WolfBand’’ or ‘‘Pembina Nation Little ShellBand,’’ or for that matter, his claims of‘‘diplomatic immunity’’ from suit in stateand federal courts in California and Utah.A litigant may assert that, like the appel-lant in Davis v. Packard, 33 U.S. (8 Pet.)312, 8 L.Ed. 957 (1834), he, too, standsbefore the court as ‘‘consul-general of theKing of Saxony and [is] therefore exemptfrom suit in the state court,’’ but the mereassertion, by itself, does not establish thefact.

Federal recognition ‘‘ ‘involves morethan past existence as a tribe and its his-torical recognition as such. There must bea currently existing group distinct andfunctioning as a group in certain respects

Conform with Subject Matter Jurisdiction,’’filed April 7, 2006 (dkt. no. 13) (‘‘Pet.Supp.’’).)

13. (Addendum at 6.)


and recognition of such activity must havebeen shown by specific actions of’ ’’ theBureau of Indian Affairs, the Interior De-partment, or the Congress. Handbook(1982 ed.) at 14–15 (quoting Memo. Sol.Int., dated Dec. 13, 1938); see UnitedTribe of Shawnee Indians v. UnitedStates, 253 F.3d 543, 548 (10th Cir.2001)(rejecting ‘‘bare assertion’’ that Indianswere present-day embodiment of theShawnee Tribe; prior explicit recognitionof the Tribe in an 1854 Treaty and by theUnited States Supreme Court not determi-native where there was no evidence Indi-ans had maintained identity with Shawneetribe or had continued to exercise tribe’ssovereign authority).

Federal recognition of tribal existenceinvolves much more than simple self-iden-tification; it is a matter of history, ances-try and continuing community.

In related proceedings in this District,the court concluded that the ‘‘WampanoagTribe of Greyhead Wolf Band’’ was actual-ly ‘‘formed at an Arby’s Restaurant inProvo’’, Utah on April 18, 2003,14 and is notin fact a federally recognized Indiantribe—a fact apparently not in genuinedispute in that proceeding.

In contrast, the James case, discussedabove, involved ‘‘the Gay Head Wampa-noags who have inhabited the area [ofMartha’s Vineyard, Massachusetts] since1642. They have been commonly knownas American Indians from historical timesuntil the present.’’ 824 F.2d at 1133. Sothere is a federally recognized tribe ofWampanoag Indians, namely the Wampa-

noag Tribe of Gay Head (Aquinnah) ofMassachusetts. 70 Fed.Reg. at 71197.

Richmond has neither averred any factsnor proffered any legal or historical mate-rial of genuine substance that would estab-lish federal recognition of the ‘‘Wampa-noag Tribe of Greyhead Wolf Band’’ as anIndian tribe, or that would establish thatthe ‘‘Pembina Nation Little Shell Band’’and the Pembina Band of Chippewa Indi-ans that was a named party to the October2, 1863 Treaty are one and the same.

Nor does Richmond cite to any pertinentlegal authority that may be read to author-ize—or obligate—the named respondentsor this court to enforce orders issued bythe purported ‘‘tribal court’’ of a group notrecognized as an Indian tribe by the Unit-ed States.Richmond’s Proposed Amended Plead-ing & Rule 15 ‘‘Futility’’

But in this case, this court need notdecide the merits of the question whethereither the ‘‘Wampanoag Tribe of GreyheadWolf Band’’ or ‘‘Pembina Nation LittleShell Band’’ are bona fide Native Ameri-can tribes, bands or ‘‘distinctly Indiancommunities’’ within the meaning of theapplicable federal law. This court neednot revisit the question whether the‘‘Wampanoag Nation, Greyhead WolfBand’’ was created at an Arby’s in Provoin 2003; nor must it examine whether the‘‘Pembina Nation Little Shell Band’’ is infact the ‘‘active anti-government extremistgroup’’ and ‘‘part of the anti-government‘sovereign citizen’ movement’’ that somehave described it as being.15

14. (Memorandum Opinion and Order, filedApril 3, 2006 (dkt. no. 130), in James W.Burbank v. United States District Court, et al.,Civil No. 2:04–CV–742 JEC (D.Utah), at 3.)Judge Conway noted that ‘‘[t]his organizationis not to be confused with the WampanoagNation, Tribe of Gayhead, Wolf Band, a feder-ally recognized Indian Tribe on Martha’sVineyard, Massachusetts, though the similari-

ty in name is undoubtedly no coincidence.’’(Id. at 5 n. 1.) See Indian Entities Recognizedand Eligible to Receive Services from the Unit-ed States Bureau of Indian Affairs, 70 Fed.Reg. 71193, 71197 (November 25, 2005) (list-ing ‘‘Wampanoag Tribe of Gay Head (Aquin-nah) of Massachusetts’’).

15. See Anti–Defamation League, Law En-forcement Agency Resource Network, Extrem-


[3] Even assuming that Richmond’sassertions concerning both entities are cor-rect, namely that the ‘‘Supreme Court ofWampanoag Tribe of Greyhead WolfBand’’ and the ‘‘Pembina Nation LittleShell California Federal Tribal CircuitCourt’’ are legitimate Indian tribal courts,it would nevertheless prove to be futile topermit the proposed amendment of hispetition because (1) the named respon-dents have no affirmative non-discretion-ary ministerial legal duty to enforce thejudgments and orders of Indian tribalcourts; (2) relief in the nature of manda-mus cannot issue from a federal districtcourt compelling the named respondents toenforce tribal court orders as such; and(3) this court has neither the power northe justification on this record to enter anyorder purporting to vacate orders or judg-ments entered by the United States Dis-trict Court for the Southern District ofCalifornia or the state courts of Californiaand Utah, in aid of the purported exerciseof jurisdiction by the ‘‘Supreme Court ofWampanoag Tribe of Greyhead WolfBand’’ or the ‘‘Pembina Nation Little ShellCalifornia Federal Tribal Circuit Court.’’

[4] None of the extraordinary reliefthat Richmond seeks in this case could begranted to him under any conceivable setof facts he could prove in support of hisproposed amended petition. Under thesecircumstances, granting leave to file Rich-mond’s proposed amended petition wouldprove to be futile at best.

‘‘A court properly may deny a motionfor leave to amend as futile when theproposed amended complaint would besubject to dismissal for any reason, in-cluding that the amendment would notsurvive a motion for summary judg-ment.’’ Bauchman for Bauchman v.West High Sch., 132 F.3d 542, 562 (10thCir.1997); see also Wilson v. AmericanTrans Air, Inc., 874 F.2d 386, 392 (7thCir.1989).

E.SPIRE Communications, Inc. v. NewMexico Public Regulation Comm’n, 392F.3d 1204, 1211 (10th Cir.2004); althoughleave to amend is to be ‘‘freely given,’’Fed.R.Civ.P. 15(a), and ‘‘pro se litigantsare to be given reasonable opportunity toremedy the defects in their pleadings,’’Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3(10th Cir.1991), a ‘‘district court may denyleave to amend where amendment wouldbe futile.’’ Jefferson County Sch. Dist.No. R–1 v. Moody’s Investor’s Servs., Inc.,175 F.3d 848, 859 (10th Cir.1999). ‘‘Thepoint can be put more strongly: a judgeshould not grant a motion to amend thecomplaint if the grant would merely setthe stage for the dismissal of the amendedcomplaint.’’ AM Int’l, Inc. v. GraphicManagement Assocs., Inc., 44 F.3d 572,578 (7th Cir.1995).

Federal Officers Have No Nondiscre-tionary Legal Duty to Enforce IndianTribal Court Orders

[5] Whether it be the Attorney Gener-al of the United States or a Deputy United

ism in America: Little Shell Pembina Band, athttp://www.adl.org/learn/ext us/Lit-tle Shell.asp?.

Richmond’s Addendum asserts that he ‘‘is aSovereign Civilian,’’ that ‘‘this Court MUSTrecognize the Sovereign Rights of CurtisRichmond,’’ and that ‘‘[a]s an InternationalSovereign Citizen, Plaintiff Curtis Richmondhas Diplomatic Immunity.’’ (Addendum at 1,2, 3.) The Addendum proffers copies of sever-al documents, including an ‘‘Act of StateReaffirmation of Dual Citizenship and Renun-

ciation of Attempted Expatriation,’’ a writtennotice asserting that ‘‘[a]ll people within thisDwelling, or Automobile, are SOVEREIGNPEOPLE with DIPLOMATIC IMMUNITYUNDER THE ‘FOREIGN SOVEREIGN IM-MUNITY ACT’, Title 28, USC Sec. 1602 teseq.,’’ and a ‘‘Citizen’s Treatise,’’ discussingthe deeper meanings of capitalization, abbre-viation, acronyms and the subtleties of theGovernment Printing Office Style Manual.(Id. (emphasis in original).)


States Marshal, officers of the UnitedStates government have no nondiscretion-ary, plainly defined, peremptory and affir-mative legal duty to enforce the lawfulorders or judgments of an Indian tribalcourt.

To start with, ‘‘[i]t is the primary roleand mission of the United States MarshalsService to TTT obey, execute, and enforceall orders of the United States DistrictCourts, the United States Courts of Ap-peals and the Court of InternationalTrade.’’ 28 U.S.C.A. § 566(a) (1993). Inaddition, the United States Marshals ‘‘shallexecute all lawful writs, process and ordersissued under the authority of the UnitedStatesTTTT’’ 28 U.S.C.A. § 566(c). Noth-ing in the United States Code either au-thorizes or obligates the United StatesMarshals to execute or enforce orders ofIndian tribal courts.

Similarly, Chapters 31, 33 and 35 ofTitle 18, United States Code vest signifi-cant authority in the Attorney General, theFederal Bureau of Investigation and theUnited States Attorney appointed to servein each federal judicial district, to enforcefederal laws, to investigate and prosecuteviolations of federal laws, and to representthe United States in legal proceedings.See 28 U.S.C.A. §§ 501 et seq. (1993) (pow-ers and functions of the Attorney General);28 U.S.C.A. §§ 531 et seq. (investigativeauthority of the FBI); 28 U.S.C.A. § 547(duties of the United States Attorney).

The Department of Justice Policy onIndian Sovereignty And Government–to–Government Relations with Indian Tribes,dated June 1, 1995,16 reaffirms ‘‘the De-partment’s recognition of the sovereignstatus of federally recognized Indian tribesas domestic dependent nations,’’ and reaf-firms ‘‘adherence to the principles of gov-ernment-to-government relations’’ in its

‘‘working relationships with federally rec-ognized Indian tribes,’’ but nowhere doesthe Justice Department acknowledge anynondiscretionary duty on the part of theAttorney General or any of its officers toenforce tribal court orders at the behest ofprivate litigants. To the contrary, the Pol-icy on Indian Sovereignty explicitly statesthat it is ‘‘not intended to create any rightenforceable in any cause of action by anyparty against the United States, its agen-cies, officers, or any person.’’

Similarly, Executive Order 13084, Con-sultation and Coordination With IndianTribal Governments, dated May 14, 1998,reaffirmed that

[t]he United States has a unique legalrelationship with Indian tribal govern-ments as set forth in the Constitution ofthe United States, treaties, statutes, Ex-ecutive orders, and court decisions.Since the formation of the Union, theUnited States has recognized Indiantribes as domestic dependent nations un-der its protection. In treaties, our Na-tion has guaranteed the right of Indiantribes to self-government. As domesticdependent nations, Indian tribes exer-cise inherent sovereign powers overtheir members and territory. The Unit-ed States continues to work with Indiantribes on a government-to-governmentbasis to address issues concerning Indi-an tribal self-government, trust re-sources, and Indian tribal treaty andother rights.

But it stopped far short of committingfederal law enforcement officers to theroutine enforcement of the orders of Indi-an tribal courts. Essentially the same istrue of the Presidential Memorandum forthe Heads of Executive Departments andAgencies entitled Government–to–Govern-ment Relations With Native AmericanTribal Governments, dated April 29,1994,17 and more recently, Executive Order

16. Available at htt p://www.usdoj.gov/ag/read-ingroom/sovereignty.htm.

17. Available at htt p://www.usdoj.gov/ar-chive/otj/Presidential Statements/presdoc1.htm


No. 13175, Consultation and CoordinationWith Indian Tribal Governments, datedNovember 6, 2000, 65 Fed.Reg. 67249(Nov. 9, 2000), which superseded Execu-tive Order No. 13084. Among the ‘‘funda-mental principles’’ expressed in ExecutiveOrder No. 13175 are:

(b) Our Nation, under the law of theUnited States, in accordance with trea-ties, statutes, Executive Orders, and ju-dicial decisions, has recognized the rightof Indian tribes to self-government. Asdomestic dependent nations, Indiantribes exercise inherent sovereign pow-ers over their members and territory.The United States continues to workwith Indian tribes on a government-to-government basis to address issues con-cerning Indian tribal self-government,tribal trust resources, and Indian tribaltreaty and other rights.(c) The United States recognizes theright of Indian tribes to self-governmentand supports tribal sovereignty and self-determination.

Executive Order No. 13175, § 2(b), (c), 65Fed.Reg. at 67249.18 Yet no express re-quirement that federal agencies act direct-ly to enforce tribal court orders is im-posed.

The Office of Tribal Justice in the De-partment of Justice does not list directenforcement of tribal court orders andjudgments among its responsibilities as theDepartment’s point of contact in ‘‘meeting

the broad and complex federal responsibili-ties owed to federally recognized Indiantribes.’’ 19 Nor does any other division oroffice within the Justice Department.

Richmond makes frequent reference tothe Oath of Office of the named respon-dents as well as state and federal judgesas a source of a legal duty to enforce theorders at issue. Indeed, ‘‘[t]he AmendedMandamus is Directed Specifically to theDefendant Law Enforcement Officers byname who have refused to Obey their Oathof OfficeTTTT’’ (Mot. To Amend at 3.)According to Richmond, the named re-spondents ‘‘were repeatedly asked to Obeytheir Oath of Office to Support and Defendthe U.S. Constitution, but they have Stub-bornly Refused to Obey Their Oath ofOffice that includes Obeying Judge HenryLee Norman Anderson’s Writ of Manda-mus,’’ (id.), purportedly issued by the‘‘Pembina Nation Little Shell CaliforniaFederal Tribal Circuit Court.’’

The oath of office taken by the AttorneyGeneral, the United States Attorneys andother federal officers undertakes to ‘‘sup-port and defend the Constitution of theUnited States,’’ but says nothing of Indiantribes, tribal law or the enforcement oftribal court orders. See 5 U.S.C.A. § 3331(1996).20 Neither does the oath prescribedby the Judicial Code for federal justicesand judges—in substance very much thesame oath as first required by the Judicia-ry Act of 1789—which speaks of ‘‘per-

18. Executive Order No. 13175 defines ‘‘Indi-an tribe’’ as ‘‘an Indian or Alaska Nativetribe, band, nation, pueblo, village, or com-munity that the Secretary of the Interior ac-knowledges to exist as an Indian tribe pursu-ant to the Federally Recognized Indian TribeList Act of 1994, 25 U.S.C. 479a.’’

19. ‘‘OTJ: Role and Responsibilities,’’ athttp://www.usdoj.gov/otj/roleandresponse.htm.

20. The oath of office prescribed by § 3331reads:

‘‘I, AB, do solemnly swear (or affirm) that Iwill support and defend the Constitution of

the United States against all enemies, for-eign and domestic; that I will bear truefaith and allegiance to the same; that I takethis obligation freely, without any mentalreservation or purpose of evasion; and thatI will well and faithfully discharge theduties of the office on which I am about toenter. So help me God.’’

See also United States Senate, ‘‘Oath of Of-fice,’’ at http://www.senate.gov/artandhisto-ry/history/common/briefing/Oath Office.htm(describing history of oath).


form[ing] all the duties incumbent uponme TTT under the Constitution and laws ofthe United States.’’ See 28 U.S.C.A. § 453(1993). Unless the Constitution itself, orthe laws of the United States enacted un-der its authority, can be read to imposesome affirmative legal obligation to obtainthe enforcement of Indian tribal court or-ders as tribal court orders, federal officerssuch as the named respondents have nonon-discretionary or ‘‘ministerial’’ duty un-der their oaths of office to do so.

At this point, Richmond has cited noprovision of the United States Constitu-tion, or any Act of Congress, ratified trea-ty of the United States, Executive Order,federal regulation or other law of the Unit-ed States that may fairly be read to im-pose any such obligation on any federalofficer or agency. Nor has he pointed toany reported opinion of the United StatesSupreme Court, the United States Courtsof Appeals, or United States DistrictCourts recognizing any such duty on thepart of the named respondents or anyother federal officer.21

Relief in the Nature of Mandamus isNot Available to Compel Federal Offi-cers to Enforce Indian Tribal Court Or-ders

As this court has previously explained,22

mandamus is a ‘‘writ issued by a superiorcourt to compel a lower court or a govern-ment officer to perform mandatory orpurely ministerial duties correctly.’’Black’s Law Dictionary 973 (7th ed.Bryan A. Garner, ed.1999). According tothe court of appeals, ‘‘Mandamus is thetraditional writ designed to compel govern-ment officers to perform nondiscretionaryduties. See Marbury v. Madison, 5 U.S.(1 Cranch) 137, 168–69, 2 L.Ed. 60 (1803).’’

Simmat v. United States Bureau of Pris-ons, 413 F.3d 1225, 1234 (10th Cir.2005).

For mandamus to issue, there must bea clear right to the relief sought, a plain-ly defined and peremptory duty on thepart of respondent to do the action inquestion, and no other adequate remedyavailable. Hadley Memorial Hosp., Inc.v. Schweiker, 689 F.2d 905, 912 (10thCir.1982). Petitioner must also showthat his right to the writ is ‘‘clear andindisputable.’’ Mallard v. United StatesDist. Court for the S. Dist. of Iowa, 490U.S. 296, 109 S.Ct. 1814, 1822, 104L.Ed.2d 318 (1989); Allied ChemicalCorp. v. Daiflon, Inc., 449 U.S. 33, 35–36, 101 S.Ct. 188, 190–191, 66 L.Ed.2d193 (1980); In re Vargas, 723 F.2d 1461,1467 (10th Cir.1983); United States v.Carrigan, 778 F.2d 1454, 1466 (10th Cir.1985).

Johnson v. Rogers, 917 F.2d 1283, 1285(10th Cir.1990); see Weston v. Mann (Inre Weston), 18 F.3d 860, 864 (10th Cir.1994) (a writ of mandamus is an extraordi-nary remedy that may only be granted if apetitioner shows that his right to the writis ‘‘clear and indisputable.’’).

Richmond points to the SupremacyClause of Article VI of the United StatesConstitution as the legal footing for theduty he asserts, including within its scope‘‘Statutes, Appellate Court Cases, U.S. Su-preme Court Cases, Treaties and CommonLaw’’; he argues that ‘‘[t]he U.S. SupremeCourt has ruled loud and clear for 105years regarding Indian Rights and IndianSovereignty. No Court Nor Law Enforce-ment Officer has the Legal Right to Ig-nore or Nullify U.S. Supreme Court Rul-ings and Article VI Supremacy Clause ofthe U.S. Constitution.’’ (Proposed

21. Nothing in Montoya suggests that ‘‘Victo-ria’s Band’’ had the power to issue ordersthat were binding on federal officers or thestate and federal courts, or that in 1879–1880,they made any effort to issue such orders. It

appears that they had other things on theirminds at that time.

22. (See Order of Dismissal, filed February 23,2006 (dkt. no. 6), at 2–3.)


‘‘Amended Writ of Mandamus to ConformWith Subject Matter Jurisdiction. IssuesCovered in Court Order to Dismiss CaseWithout Prejudice’’ at 5, 6.)

Of course, ‘‘Indian law is uniquely feder-al in nature, having been drawn from theConstitution, treaties, legislation, and an‘intricate web of judicially made Indianlaw.’ Oliphant v. Suquamish IndianTribe, 435 U.S. 191, 206, 98 S.Ct. 1011,1020, 55 L.Ed.2d 209 (1978).’’ 23 Besidesthe power vested in the Congress by theIndian Commerce Clause of Article I, § 8,cl. 3, the President’s ‘‘Power, by and withthe Advice and Consent of the Senate, tomake Treaties’’ under Article II, § 2comes into play:

A treaty between the United States andan Indian tribe ‘‘is essentially a contractbetween two sovereign nations.’’ Wash-ington v. Wash. State Commercial Pas-senger Fishing Vessel Ass’n, 443 U.S.658, 675, 99 S.Ct. 3055, 61 L.Ed.2d 823(1979) (Fishing Vessel ). Nonetheless,treaties constitute the ‘‘supreme law of

the land,’’ Breard v. Greene, 523 U.S.371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529(1998) (per curiam), and they have occa-sionally been found to provide rights ofaction for equitable relief against non-contracting parties, see United States v.Winans, 198 U.S. 371, 377, 25 S.Ct. 662,49 L.Ed. 1089 (1905).

Skokomish Indian Tribe v. United States,410 F.3d 506, 512 (9th Cir.2005), cert. de-nied, ––– U.S. ––––, 126 S.Ct. 1025, 163L.Ed.2d 854 (2006).

Richmond argues that ‘‘[t]his Court isrequired to Obey Article VI SupremacyClause that is the Supreme Law of theLand that includes Treaties,’’ 24 but Rich-mond cites to no treaty between the Unit-ed States and the purported Wampanoagor Pembina bands, including the 1863Treaty with the Chippewas, that imposes‘‘a plainly defined and peremptory duty onthe part of respondent[s] to do the actionin question,’’ viz., enforce tribal court or-ders as against the state and federalcourts in California and Utah.25 Nor does

23. Wilson v. Marchington, 127 F.3d 805, 813(9th Cir.1997), cert. denied, 523 U.S. 1074,118 S.Ct. 1516, 140 L.Ed.2d 669 (1998).

24. (Pet. Supp. at 2 (emphasis in original).)

25. Richmond’s Supplement also cites to the1975 ‘‘Helsinki Accords’’ (officially entitledConference on Security and Cooperation in Eu-rope: Final Act ), 73 Dept. of State Bull. 323(1975), but the Helsinki Accords are

phrased in generalities, and there is no in-dication that the nations signing the agree-ment anticipated that it would be enforcedby private litigants. Indeed, the Accordsreaffirm respect for the sovereignty of itssigners, id. at 324, and pledge noninterfer-ence in the internal affairs of those nations,id. at 325. Rather, the Accords create obli-gations on the signatory countries and es-tablish goals which the nations will try toreach on their own.

Frolova v. Union of Soviet Socialist Republics,761 F.2d 370, 375 (7th Cir.1985) (per cu-riam). As then-President Ford stated beforesigning the Accords in 1975:

I would emphasize that the document Iwill sign is neither a treaty nor is it legal-ly binding on any particular state. TheHelsinki documents involve political andmoral commitments aimed at lesseningtension and opening further the lines ofcommunication between the peoples ofEast and West.

United States v. Kakwirakeron, 730 F.Supp.1200, 1201 (N.D.N.Y.1990) (quoting 73 Dept.of State Bull. 204, 205 (1975) (emphasis sup-plied by court)). ‘‘Thus, ‘[i]ndividuals ag-grieved by the failure of nations to implementthe Helsinki Accords will have to be contentwith the principle that violations of interna-tional agreements ‘‘are normally to be re-dressed outside the courtroom.’’ ’ Frolova,761 F.2d at 376 (quoting Canadian TransportCo. v. United States, 663 F.2d 1081, 1092(D.C.Cir.1980)).’’ Id. at 1202.

Richmond also points to the 1961 HagueConvention abolishing the Requirement of Le-galization for Foreign Public Documents, thetext of which may be found in T.I.A.S. 10072;33 U.S. Treaty Series (UST) 883; 527 U.N.


he cite to any Act of Congress creatingany such obligation on the part of thenamed respondents, or any federal offi-cer.26

None of the judicial opinions cited byRichmond or by the documents he submitssupport his sweeping assertion that thenamed respondents must enforce the pur-ported tribal court orders upon which herelies, or that this court ‘‘has No Authorityor Discretion but to Confirm and ObeyJudge Henry Lee Norman Anderson’sWrit of Mandamus.’’ 27

Richmond misapprehends the legal prin-ciples governing the recognition and en-forcement of judgments and orders in dif-ferent state and federal courts. As onescholarly commentary explains:

Any judgment not rendered within theterritorial jurisdiction of a state of theUnited States is, strictly speaking, a‘‘foreign judgment’’ to that state. To beenforced in a state other than whererendered, such a judgment must be‘‘recognized’’ and ‘‘given effect’’ by thelocal authority of the forum. Usuallythis recognition is by the judiciary of thesecond state, but the judgment may alsobe enforced administratively. The FullFaith and Credit Clause of the federalConstitution mandates such recognitionand effect for interstate judgments. Inone of the few legislative implementa-tions of the Clause thus far, Congresshas specified that the ‘‘records and judi-cial proceedings of any court of any TTT

State, Territory or Possession’’ of theUnited States ‘‘shall have the same fullfaith and credit in every court TTT asthey have by law or usage in the courtsof such State, Territory or Possessionfrom which they are taken.’’

Mandatory recognition of a judgmentunder the Clause presupposes a validjudgment of a sister state, for instance,one based on proper jurisdiction and notdefective for other reasons, such asfraud. The recognition requirement ap-plies to state court judgments in thecourts of sister states and in federalcourts as well as to the recognition offederal judgments in state courts. Theeffect to be given the judgment is gener-ally determined by the local law of therendering court.

Eugene F. Scoles & Peter Hay, Conflict ofLaws § 24.12, at 933–35 (1984) (emphasisin original; footnotes omitted). ‘‘The FullFaith and Credit Clause, taken alone, doesnot provide immediate enforcement of sis-ter-state judgments, in the sense of obviat-ing the need for an action on the judg-ment,’’ id. § 24.13, at 935; Congress hasprovided a statutory procedure for theregistration of many federal court judg-ments in other federal districts, see 28U.S.C. § 1963, and many states haveadopted a registration procedure for judg-ments rendered in other jurisdictions.

Thus a party seeking to enforce a feder-al or state court judgment in a federal orstate court in another state or federal dis-

Treaty Series (UNTS) 189, in the ‘‘Interna-tional Law Digests’’ volume of the Martin-dale–Hubbel Law Directory, and on the Inter-net, see http://www.hcch.net/indexen.php?act=conventions.text & cid=41. TheConvention provides for the simplified certifi-cation of public (including notarized) docu-ments to be used in countries that have joinedthe convention, and has no bearing upon theenforcement of Indian tribal court orderswithin the United States. See U.S. Dept. ofState, Office of Authentications, ‘‘Apostille Re-

quirements,’’ at http://www.state.gov/m/a/auth/c16921.htm.

26. Richmond cites to 28 U.S.C. § 2072,which simply confirms that ‘‘[t]he SupremeCourt shall have the power to prescribe gen-eral rules of practice and procedure and rulesof evidence for cases in the United Statesdistrict courts TTT and courts of appeals,’’ andsays nothing about Indian tribes, tribalcourts, or tribal court orders.



trict generally must commence a recogni-tion proceeding or a civil action upon thatjudgment in a court of the jurisdictionwhere he seeks its enforcement. Uponformal recognition of the judgment by thelatter court, it may then be enforced as ajudgment of that court by the officers hav-ing the duty to do so.

Federally recognized Indian tribes arenot an arm of the United States govern-ment and their courts are not federalcourts. See, e.g., United States v. Wheeler,435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303(1978). Nor are tribes ‘‘States’’ for pur-poses of the Full Faith and Credit Clause,or the corresponding federal statute, 28U.S.C. § 1738. If the judgments of Indiantribal courts are not entitled to full faithand credit in the federal and state courts,then they are subject to recognition andenforcement as a matter of comity be-tween sovereigns, similar to that affordedjudgments of the courts of foreign na-tions.28 See, e.g., MacArthur v. San JuanCounty, 391 F.Supp.2d 895, 1015–23(D.Utah 2005).

In Wilson v. Marchington, 127 F.3d 805(9th Cir.1997), cert. denied, 523 U.S. 1074,118 S.Ct. 1516, 140 L.Ed.2d 669 (1998),another case relied upon by Richmond, theNinth Circuit explained:

No legal judgment has any effect, ofits own force, beyond the limits of the

sovereignty from which its authority isderived. Because states and Indiantribes coexist as sovereign governments,they have no direct power to enforcetheir judgments in each other’s jurisdic-tions. By contrast, the United StatesConstitution and implementing legisla-tion require full faith and credit be givento judgments of sister states, territories,and possessions of the United States.U.S. Const. art. IV, § 1, cl. 1; 28U.S.C. § 1738. The extent to which theUnited States, or any state, honors thejudicial decrees of foreign nations is amatter of choice, governed by ‘‘the comi-ty of nations.’’ Hilton v. Guyot, 159U.S. 113, 163, 16 S.Ct. 139, 143, 40 L.Ed.95 (1895).

* * * * * *Certainly, there are policy reasons

which could support an extension of fullfaith and credit to Indian tribes. Thosedecisions, however, are within the prov-ince of Congress or the states, not thisCourt. Full faith and credit is not ex-tended to tribal judgments by the Con-stitution or Congressional act, and wedecline to extend it judicially.

127 F.3d at 807–08, 809 (footnote omitted).Far from holding that ‘‘[n]on-Indians mustobey Tribal Court and even State Courtsmust obey Tribal Court’’ in all cases,29

Wilson declined enforcement of a tribalcourt judgment because of the tribal

28. See, e.g., Society of Lloyd’s v. Reinhart, 402F.3d 982 (10th Cir.2005); cf. Hilton v. Guy-ot, 159 U.S. 113, 202–03, 16 S.Ct. 139, 40L.Ed. 95 (1895). In contrast to applying statelaw rules concerning the recognition of for-eign judgments, ‘‘the quintessentially federalcharacter of Native American law, coupledwith the imperative of consistency in federalrecognition of tribal court judgments, by ne-cessity require that the ultimate decision gov-erning the recognition and enforcement of atribal judgment by the United States befounded on federal law.’’ Wilson v. March-ington, 127 F.3d at 812.

29. (‘‘Court Ordered Writ of Mandamus,’’ acopy of which is annexed to Addendum (cit-

ing Wilson v. Marchington ).) The citation to‘‘Wilson v. Marchington, 523 U.S. 1074, 118S.Ct. 1516, 140 L.Ed.2d 669 (1998)’’ as sup-port for this assertion in Richmond’s writtenmaterials is plainly wrong. The case reportedin volume 523 of the United States Reports,inclusive of page 174 is Lewis v. United States,523 U.S. 155, 118 S.Ct. 1135, 140 L.Ed.2d271 (1998), a case involving the statutes appli-cable to the deliberate murder of a four-year-old child by her parents on the Fort PolkArmy Base in Louisiana. Justice Scalia’sconcurring opinion in Lewis, which begins atpage 173, says not a word about Indian tribalsovereignty or tribal court orders. At page1074, one finds a one-line order entered April20, 1998: ‘‘Petition for writ of certiorari to


court’s lack of subject-matter jurisdictionover the non-Indian parties to the litiga-tion. Id. at 813–15.

Clearly, tribal court orders and judg-ments—enforceable as they may be withinthe issuing court’s territorial jurisdiction—are not entitled to direct enforcement out-side of that jurisdiction; instead, ‘‘tribalcourt judgments should be enforced off-reservation through the state or federalcourt systems,’’ Handbook (2005 ed.)§ 7.07[3]9c, at 667, likely using the estab-lished procedures for recognition and en-forcement of judgments of the courts ofanother sovereign.

In his original and proposed amendedpetitions, Richmond does not invoke anyprocedure for the recognition and enforce-ment of foreign judgments or orders in thefederal courts. To the contrary, he insiststhat the ‘‘Pembina’’ court ‘‘writ of manda-mus’’ served to validate the ‘‘Wampanoag’’court orders, and thereafter the namedrespondents and state and federal courtsare duty-bound by their oaths of office tosee to the enforcement of those orders.

Framed in those terms, Richmond’s pro-posed amended petition must fail becauseof its legal insufficiency.This Court May Not Vacate Orders orJudgments Entered by the United StatesDistrict Court for the Southern Districtof California or the State Courts of Cal-ifornia and Utah on the Grounds Assert-ed by Richmond

Richmond’s proposed amended petitiondemands that this court compel the named

respondents to obtain the dismissal of judi-cial proceedings alleged to be pending be-fore the United States District Court forthe Southern District of California, theCalifornia Superior Court, and Third Dis-trict Court of the State of Utah, basedupon the purported ‘‘Wamapanoag’’ tribalcourt orders upon which he relies, and thatthis court grant relief vacating any ordersentered by those courts after the ‘‘Wampa-noag’’ orders were issued. The underlyingpremise of Richmond’s claim is that thosecourts lack jurisdiction to adjudicate Rich-mond’s interests because of his status as a‘‘Sovereign Citizen’’ and as an ‘‘adopted’’member of the purported ‘‘WampanoagTribe of Grayhead Wolf Band.’’

In asserting that ‘‘[a]s an InternationalSovereign Citizen, Plaintiff Curtis Rich-mond has Diplomatic Immunity,’’ 30 Rich-mond confuses the jurisdictional implica-tions of Indian tribal membership with thelegal immunity afforded diplomatic andconsular officials of foreign nations.31

Contrary to Richmond’s assertion, Indiantribes and their members are not coveredby the provisions of the Foreign SovereignImmunities Act of 1976, 28 U.S.C. §§ 1602et seq. (2000). Cf. Bank of Oklahoma v.Muscogee (Creek) Nation, 972 F.2d 1166,1169 (10th Cir.1992) (noting that ‘‘the Su-preme Court has explicitly stated that In-dian tribes are not foreign sovereigns, butare ‘domestic dependent nations.’ Chero-kee Nation v. Georgia, 30 U.S. (5 Pet.) 1,31, 8 L.Ed. 25 (1831)’’).32

the United States Court of Appeals for theNinth Circuit denied,’’ referring to Wilson v.Marchington, 127 F.3d 805 (9th Cir.), andlikewise saying nothing of substance aboutIndian tribal sovereignty or tribal court or-ders.


31. See U.S. Dept. of State, Bureau of Diplo-matic Security, Diplomatic and Consular Im-

munities, at http://www.state.gov/m/ds/immu-nities/c9118.htm; Vienna Convention onDiplomatic Relations, dated April 18, 1961,available at http://un treaty.un.org/ilc/texts/in-struments/english/conventions/911961.pdf; seegenerally Tachiona v. United States, 386 F.3d205 (2d Cir.2004), certiorari denied, 74U.S.L.W. 3425, ––– U.S. ––––, 126 S.Ct.2020, 164 L.Ed.2d 806 (2006) (No. 05–879).


[6] Even assuming that Richmond is abona fide ‘‘adopted’’ member of a bona fideIndian tribe,33 the tribe’s civil authoritydoes not follow him wherever he goes,cloaking him in a mantle of civil immunity,excusing him from the commonplace civilobligations to pay non-discriminatory tax-es, register his vehicles, perform his con-tracts, repay his debts or obey federal,state and local laws. As the SupremeCourt recently observed, ‘‘we have con-cluded that ‘[a]bsent express federal law tothe contrary, Indians going beyond reser-vation boundaries have generally beenheld subject to non-discriminatory statelaw otherwise applicable to all citizens ofthe State.’ ’’ Wagnon v. Prairie Band Po-tawatomi Nation, 546 U.S. ––––, 126 S.Ct.676, 679, 163 L.Ed.2d 429 (2005) (quotingMescalero Apache Tribe v. Jones, 411 U.S.145, 148–49, 93 S.Ct. 1267, 36 L.Ed.2d 114(1973)). An Indian tribe itself may remainimmune from suit for activities conductedoutside of its own territory, see, e.g.,Kiowa Tribe of Oklahoma v. Manufactur-ing Technologies, Inc., 523 U.S. 751, 753–60, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998),but tribal immunity does not extend toshield individual members from the legalconsequences of their own private off-res-ervation activities. See, e.g., OklahomaTax Com’n v. Chickasaw Nation, 515 U.S.450, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995)(holding that State may tax income of trib-al members residing outside of reserva-tion); United States on Behalf of Chey-

enne River Sioux Tribe v. State of SouthDakota, 105 F.3d 1552, 1556 (8th Cir.1997)(observing that ‘‘states may impose ontribal members a sales tax or other nondis-criminatory tax on off-reservation pur-chases’’); Tunica–Biloxi Tribe v. Louisi-ana, 964 F.2d 1536 (5th Cir.1992) (same);cf. Jicarilla Apache Tribe v. Board ofCounty Comm’rs, 118 N.M. 550, 555–58,883 P.2d 136, 141–44 (1994) (holding thatState court had jurisdiction to adjudicatepre-existing interests in off-reservationreal property purchased by Indian tribe).

Generally, then, ‘‘Indian tribes and theirmembers, when outside of Indian country,are subject to nondiscriminatory state lawunless federal law provides otherwise.State courts have jurisdiction over suitsagainst individual Indians arising outsideIndian country.’’ Handbook (2005 ed.)§ 7.03[1], at 608 (footnotes omitted).

[7–9] There appears to be no seriousquestion that federal district courts mayexercise jurisdiction over cases or contro-versies involving tribal members and aris-ing out of off-reservation activities, to thesame extent as would be true of non-Indian litigants under the applicable ‘‘fed-eral question’’ and ‘‘diversity’’ jurisdiction-al statutes, see 28 U.S.C.A. §§ 1331, 1332(1993 & Supp.2005), subject to the non-jurisdictional requirement that the partiesto any case subject to tribal jurisdictionmust exhaust their tribal remedies beforeturning to the federal courts for relief.See Annotation, Construction and Applica-tion of Federal Tribal Exhaustion Doc-trine, 186 A.L.R. Fed. 71 (2003).34

32. Nothing in the language of the Act of July27, 1868, ‘‘concerning the Rights of AmericanCitizens in foreign States,’’ ch. 249, 15 Stat.223, lends any support to Richmond’s asser-tions in this proceeding.

33. ‘‘Adoption’’ into tribal membership, evenby the governing body of a federally recog-nized Indian tribe, does not necessarily conferlegal status as an ‘‘Indian’’ on the adoptee forall purposes, particularly where none of theindividual’s ancestors lived in what is now the

United States before its discovery by Europe-ans. See Handbook (2005 ed.), § 3.03, at171–82; see also Indian Reorganization Act of1934, 25 U.S.C.A. § 479 (2001) (‘‘The term‘Indian’ as used in [this Act] shall include allpersons of Indian descent who are membersof any recognized Indian tribe now underFederal jurisdiction,’’ among others.)

34. Federal jurisdiction may also extend tocontroversies involving tribal members ortheir interests in property located in Indian


Other than his expansive assertions ofpersonal sovereignty and diplomatic immu-nity, Richmond has not articulated anylegal basis for a conclusion that the UnitedStates District Court for the Southern Dis-trict of California lacked subject-matter orpersonal jurisdiction over him in the litiga-tion before that court.35 From Richmond’ssubmissions, it appears that the court inthat case awarded declaratory and injunc-tive relief against Richmond in Decemberof 2005.36

[10, 11] Generally, a federal districtcourt is without jurisdiction to afford relieffrom a mandatory injunction issued from afederal district court sitting in another cir-

cuit. See Carter v. United States, 733F.2d 735, 736 (10th Cir.1984), cert. denied,469 U.S. 1161, 105 S.Ct. 915, 83 L.Ed.2d928 (1985). And while ‘‘[h]istorically, ithas been within the equitable powers of afederal court to grant relief from a civiljudgment issued by another federalcourt[,] [s]ee Oliver v. City of Shattuck exrel. Versluis, 157 F.2d 150, 152 (10th Cir.1946), TTT [c]ourts have declined to exer-cise jurisdiction over such claims whenthey may be brought in the court whichentered the judgment.’’ Carter v. Attor-ney General of U.S., 782 F.2d 138, 142 n. 4(10th Cir.1986) (citing Lapin v. Shulton,Inc., 333 F.2d 169 (9th Cir.), cert. denied,379 U.S. 904, 85 S.Ct. 193, 13 L.Ed.2d 177

country, in an appropriate case. See, e.g.,Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9,107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (holdingthat federal district court had diversity juris-diction over insurance dispute, but that afederal court may not exercise diversity juris-diction over a civil dispute relating to reserva-tion affairs before an appropriate Indian trib-al court system has had an opportunity todetermine its own jurisdiction); Richardson v.Malone, 762 F.Supp. 1463 (N.D.Okl.1991)(finding federal question jurisdiction overbreach of contract action against Indian de-fendants seeking foreclosure upon alleged se-curity interest in property located in Indiancountry in the absence of tribal court reme-dy); cf. Superior Oil Co. v. Merritt, 619F.Supp. 526 (D.Utah 1985) (holding that fed-eral district court lacks diversity jurisdictionover a reservation-based tort claim concur-rent with civil jurisdiction of tribal courts);White v. Pueblo of San Juan, 728 F.2d 1307,1312 (10th Cir.1984) (holding that a plaintiffmust actually first seek a tribal remedy whichif it exists is exclusive).

Even where a lawsuit arises from an Indiantribe or tribal entity’s off-reservation activi-ties, exhaustion of tribal remedies may berequired. See Ninigret Development Corp. v.Narragansett Indian Wetuomuck Housing Au-thority, 207 F.3d 21, 32 (1st Cir.2000) (statingthat ‘‘[t]o trigger exhaustion, an ‘off-the-reser-vation’ claim must at a bare minimum impactdirectly upon tribal affairs’’); Texaco, Inc. v.Zah, 5 F.3d 1374 (10th Cir.1993).

35. Concord EFS Nat’l Bank v. Richmond,Case No. 04 CV 00304 LAB (BLM) (S.D. Cal.,judgment entered December 21, 2005).

36. In doing so, the Southern District of Cali-fornia was likely abiding by Chief JusticeJohn Marshall’s admonition in Cohens v. Vir-ginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257(1821) that a court

must take jurisdiction if it should. Thejudiciary cannot, as the legislature may,avoid a measure because it approaches theconfines of the constitution. We cannotpass it by, because it is doubtful. Withwhatever doubts, with whatever difficulties,a case may be attended, we must decide it,if it be brought before us. We have nomore right to decline the exercise of juris-diction which is given, than to usurp thatwhich is not given. The one or the otherwould be treason to the constitution. Ques-tions may occur which we would gladlyavoid; but we cannot avoid them.

Id. at 404; see United States v. Will, 449 U.S.200, 216 n. 19, 101 S.Ct. 471, 66 L.Ed.2d 392(quoting Cohens ). Richmond’s complaint ap-pears to be not that the courts in Californiaand Utah have refused to exercise their juris-diction or to decide an issue, but that theyhave exercised jurisdiction and decided issuesadversely to him. Chief Justice Marshall’scolorful metaphor notwithstanding, an ad-verse judicial ruling does not amount to trea-son in any meaningful legal sense; at most, itpresents grounds for an appeal. See 28U.S.C.A. §§ 1291–92 (1993).


(1964)).37

If there is a genuine question concerningsubject-matter jurisdiction over Richmondin the Southern District of California, hemay raise that question before that courtat any time. See Fed.R.Civ.P. 12(h)(3)(‘‘Whenever it appears by suggestion ofthe parties or otherwise that the courtlacks jurisdiction of the subject matter, thecourt shall dismiss the action.’’). There isnothing requiring Richmond to raise thatquestion in this forum, and no basis infederal law for a purported tribal court tointerfere with that federal district court’sjurisdictional determinations. If Rich-mond was dissatisfied with the rulings ofthe federal district court in California, hehad the opportunity to appeal.

[12] Nor is this court in a position togrant the relief Richmond seeks concern-ing state court proceedings in California orUtah to which he is a party.

A United States District Court has noauthority to review final judgments of astate court in judicial proceedings.Such review resides exclusively in theUnited States Supreme Court. See 28U.S.C. § 1257 (1982); see also Phelps v.Kansas Supreme Court, 662 F.2d 649,651 (10th Cir.1981), cert. denied, 456U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466(1982); Younger v. Colorado StateBoard of Law Examiners, 625 F.2d 372,375 (10th Cir.1980).

Razatos v. Colorado Supreme Court, 746F.2d 1429, 1432 (10th Cir.1984). Further,under the Anti–Injunction Act, ‘‘A court ofthe United States may not grant an injunc-tion to stay proceedings in a State Courtexcept as expressly authorized by Act ofCongress, or where necessary in aid of its

jurisdiction, or to protect or effectuate itsjudgments.’’ 28 U.S.C.A. § 2283 (1994).‘‘The Supreme Court has made clear thatthe statute imposes an absolute ban onfederal injunctions against pending statecourt proceeding, in the absence of one ofthe recognized exceptions in the law.’’Phelps v. Hamilton, 122 F.3d 1309, 1324 –1325 (10th Cir.1997) (citing Mitchum v.Foster, 407 U.S. 225, 228–29, 92 S.Ct. 2151,32 L.Ed.2d 705 (1972)).

The Anti–Injunction Act precludes fed-eral courts from enjoining state courtactions unless (1) Congress has express-ly authorized such relief by statute, (2)an injunction is ‘‘necessary in aid of (thecourt’s) jurisdiction,’’ or (3) an injunctionis necessary ‘‘to protect or effectuate(the court’s) judgments.’’ 28 U.S.C.§ 2283. In the interest of comity andfederalism, these three exceptions mustbe strictly construed. ‘‘ ‘(D)oubts as tothe propriety of a federal injunctionagainst state court proceedings shouldbe resolved in favor of permitting thestate courts to proceed in an orderlyfashion to finally determine the contro-versy.’ ’’ Vendo Co. v. Lektro–VendCorp., 433 U.S. 623, 630, 97 S.Ct. 2881,2887, 53 L.Ed.2d 1009 (1977) (pluralityopinion), quoting Atlantic Coast Line R.Co. v. Brotherhood of Locomotive Engi-neers, 398 U.S. 281, 297, 90 S.Ct. 1739,1748, 26 L.Ed.2d 234 (1970). The excep-tions to the Act ‘‘should not be enlargedby loose statutory construction.’’ Atlan-tic Coast Line R. Co. v. Brotherhood ofLocomotive Engineers, supra, 398 U.S.at 287, 90 S.Ct. at 1743. In short, afederal injunction restraining prosecu-tion of a lawsuit in state court is abso-lutely prohibited unless authorized by

37. ‘‘The federal courts may entertain suchindependent actions in cases of fraud, acci-dent, or mistake, or when equitable relief isotherwise warranted. See Bankers MortgageCo. v. United States, 423 F.2d 73, 78–79 (5thCir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242,

26 L.Ed.2d 793 (1970); Fed.R.Civ.P. 60(b); 7J. Moore, Federal Practice ¶ 60.36, at 366–67& n. 7 (2d ed.1985); 11 C. Wright & A. Miller,Federal Practice & Procedure § 2868, at 242–43 (1973).’’ Id.


one of the three narrow statutory excep-tions specifically defined in the Anti–Injunction Act. Mitchum v. Foster, 407U.S. 225, 228–29, 92 S.Ct. 2151, 2154, 32L.Ed.2d 705 (1972). It makes no differ-ence whether the injunction applies tothe private litigants or is imposed direct-ly on the state court itself. See, e.g.,Henry v. First Nat’l Bank of Clarks-dale, 595 F.2d 291, 300 (5th Cir.1979),cert. denied, 444 U.S. 1074, 100 S.Ct.1020, 62 L.Ed.2d 756 (1980); 17 C.Wright, A. Miller & E. Cooper, FederalPractice & Procedure § 4222, at 317(1978).

Alton Box Bd. Co. v. Esprit de Corp., 682F.2d 1267, 1270–71 (9th Cir.1982).

Richmond does not point to any Act ofCongress authorizing this court to grantinjunctive relief vacating orders entered in,or compelling the dismissal of, the statecourt actions pending against him. Norwould relief in the nature of mandamusrequiring compliance with Richmond’s pur-ported tribal court orders requiring suchdismissal be granted ‘‘in aid of’’ this court’sjurisdiction, or ‘‘to protect or effectuate’’this court’s judgments, as the Anti–Injunc-

tion Act would require. Absent specificcongressional authorization, the Act’s lan-guage allows a federal court to issue aninjunction only if ‘‘necessary in aid of itsjurisdiction, or to protect or effectuate itsjudgments,’’ 28 U.S.C. § 2283. Thus itwould impermissibly enlarge the excep-tions ‘‘by loose statutory construction,’’ At-lantic Coast Line R. Co. v. Brotherhood ofLocomotive Engineers, 398 U.S. 281, 287,90 S.Ct. 1739, 26 L.Ed.2d 234 (1970), toallow one federal district court to issue aninjunction in order to aid the jurisdictionor protect the judgment of another court,be it another federal district court or thecourt of another sovereign. See AltonBox, 682 F.2d at 1273.

Richmond could have raised any validlegal objections he may have to the sub-ject-matter jurisdiction of the California orUtah courts before those forums at anytime (see Utah R. Civ. P. 12(h)(2); 5 Wit-kin, Cal. Procedure: Pleading § 922, at380 (4th ed. 1997) (‘‘Lack of subject mat-ter jurisdiction is not waived by failure todemur, but can be attacked by motion orsuggestion at any time during trial or onappeal TTTT’’) 38), and could appeal to the

38. As the California Supreme Court explains:

A challenge to the subject matter jurisdic-tion of a court is properly brought by de-murrer to the complaint (Code Civ.Proc.,§ 430.10, subd. (a); see, e.g., Santiago v.Employee Benefits Services (1985) 168 Cal.App.3d 898, 214 Cal.Rptr. 679; Miller v.R.K.A. Management Corp. (1979) 99 Cal.App.3d 460, 160 Cal.Rptr. 164). It mayalso be raised by a motion to strike (CodeCiv.Proc., §§ 435, 437); motion for judg-ment on the pleadings (Jarchow v. Trans-america Title Ins. Co. (1975) 48 Cal.App.3d917, 122 Cal.Rptr. 470); motion for sum-mary judgment (Code Civ.Proc., § 437c;Hisel v. County of Los Angeles (1987) 193Cal.App.3d 969, 238 Cal.Rptr. 678; UnitedStates Borax & Chemical Corp. v. SuperiorCourt (1985) 167 Cal.App.3d 406, 213 Cal.Rptr. 155); or in an answer (Horney v. GuyF. Atkinson Co. (1983) 140 Cal.App.3d 923,190 Cal.Rptr. 18).

Greener v. Workers’ Comp. Appeals Bd., 6Cal.4th 1028, 1036, 863 P.2d 784, 789, 25Cal.Rptr.2d 539, 544 (1993); see also GreatWestern Casinos, Inc. v. Morongo Band ofMission Indians, 74 Cal.App.4th 1407, 1418–25 88 Cal.Rptr.2d 828, 836–41 (1999) (affirm-ing dismissal for lack of subject matter juris-diction where a state court civil action byIndian tribe’s gaming manager against tribeand tribal officers in their official capacitywas barred by the tribe’s sovereign immunityand pre-empted by federal legislation), cert.denied, 531 U.S. 812, 121 S.Ct. 45, 148L.Ed.2d 15 (2000).

Moreover, California Code of Civil Proce-dure § 663 permits a motion to vacate wherethe legal basis for the order was erroneous,even where the moving party asserts a legaltheory not previously argued to the court.Hoffman–Haag v. Transamerica Ins. Co., 1Cal.App.4th 10, 15–16, 1 Cal.Rptr.2d 805(1991).


appropriate state court of appeals any rul-ing that he believed to be erroneous.

Neither Richmond’s original petition norhis proposed amended petition plead spe-cific facts showing that his remedies at lawin the California and Utah courts are inad-equate or have been exhausted. The Fifthand Fourteenth Amendments to the Con-stitution guarantee Richmond the Processwhich is Due, namely, ‘‘ ‘the opportunity tobe heard ‘‘at a meaningful time and in ameaningful manner,’’ ’ ’’ consistent with therequirements of fundamental fairness.Schroeck v. Gonzales, 429 F.3d 947, 952(10th Cir.2005) (quoting de la Llana–Cas-tellon v. INS, 16 F.3d 1093, 1096 (10thCir.1994) (quoting Mathews v. Eldridge,424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d18 (1976)) (further quotation omitted)).But to enjoy the benefits of the Due Pro-cess Clause, Richmond must avail himselfof the procedural remedies of the courts inCalifornia and Utah into which he hasalready been haled. By itself, the fact thatRichmond has not prevailed in those fo-rums does not render the proceedings fun-damentally unfair or provide a basis forextraordinary equitable relief by which onecourt interferes with proceedings pendingbefore another court.Law, Language & Litigants

‘‘Jurisdiction is a matter of law, statute,and constitution, not a child’s game where-in one’s power is magnified or diminishedby the display of some magic talisman,’’

McCann v. Greenway, 952 F.Supp. 647,651 (W.D.Mo.1997), or by the use of specialseals or ‘‘Apostilles’’ on documents, or bythe recital of Special Words, Phrases orArcane Incantations, whether capitalizedin written text or not.39

Law necessarily finds expressionthrough language, but the words throughwhich law is expressed do not by them-selves change or directly affect the world.40

Through common agreement as to mean-ings, the words symbolize, identify anddescribe legal ideas and concepts—a stan-dard of conduct, a process, a power, aduty, a right or a privilege. Legal lan-guage correlates with these ideas and con-cepts, but the language itself does notcause a legal consequence simply becausethe words are written into a document or apleading. The words of the law are func-tional, but they communicate ideas com-monly shared, rather than cause a legalconsequence merely by their use.41

Simply labeling one’s self as a ‘‘Sover-eign Citizen’’ does not immunize a personfrom the jurisdiction or processes of thestate or federal courts. Adopting the labelof ‘‘federal tribal circuit court’’ or even‘‘supreme court’’ by itself does not imbuesomeone with the constitutional authorityto bind the Attorney General of the UnitedStates or the United States Marshal to theenforcement of orders issued in that name.

39. See, e.g., United States v. Mitchell, 405F.Supp.2d 602, 603–06 (D.Md.2005) (‘‘ ‘Itmakes no sense to rest a jurisdictional distinc-tion upon the use of all upper case letters or amixture of upper and lower case letters. Thefederal courts abandoned this level of formal-ism long ago.’ ’’ (quoting United States v. Sin-gleton, 2004 WL 1102322, *3 (N.D.Ill. May 7,2004))); see also Sadlier v. Payne, 974 F.Supp.1411 (D.Utah 1997).

40. Cf. ‘‘Magical Thinking,’’ at http://en.wikipe-dia.org/wiki/Magicalthinking (‘‘Another formof magical thinking occurs when people be-

lieve that words can directly affect the world.This can mean avoiding talking about certainsubjects (‘speak of the devil and he’ll appear’),using euphemisms instead of certain words,or believing that to know the ‘true name’ ofsomething gives one power over it, or thatcertain chants, prayers or mystical phraseswill change things.’’); see generally JamesGeorge Frazer, Robert Fraser, The GoldenBough: A Study in Magic and Religion (Ox-ford abr. ed.1998).

41. Magical thinking ‘‘often mistakes correla-tion for causation.’’ Id.


Far from being some occult charm orarcane formula, the phrase tribal sover-eignty identifies in shorthand fashion thecentral principle defining the legal rela-tionship between Indian tribes, bands andcommunities and the governments of theUnited States and the several States:‘‘Perhaps the most basic principles of allIndian law, supported by a host of deci-sions TTT is the principle that those powerswhich are lawfully vested in an Indiantribe are not, in general delegated powersgranted by express acts of Congress, butrather inherent powers of a limited sover-eignty which has never been extin-guished.’’ Felix S. Cohen, Handbook ofFederal Indian Law 122 (1942 ed.) (em-phasis in original). As the court of appealshas explained:

Indian tribes are neither states, norpart of the federal government, nor sub-divisions of either. Rather, they aresovereign political entities possessed ofsovereign authority not derived from theUnited States, which they predate. SeeMcClanahan, 411 U.S. at 172, 93 S.Ct.1257, 36 L.Ed.2d 129 (‘‘[T]he TTT Indian[tribes’] TTT claim to sovereignty longpredates that of our own Government.’’).The Pueblo, like all Indian tribes, neednot rely on a federal delegation of pow-ers. ‘‘Indian tribes consistently havebeen recognized TTT by the UnitedStates, as ‘distinct, independent politicalcommunities’ qualified to exercise pow-ers of self-government, not by virtue ofany delegation of powers, but rather byreason of their original tribal sovereign-ty.’’ Felix Cohen, Handbook of FederalIndian Law 232 (1982) (footnotes omit-ted) (citing Worcester v. Georgia, 31

U.S. (6 Pet.) 515, 559, 8 L.Ed. 483(1832)). Tribes retain those attributesof inherent sovereignty not withdrawneither expressly or necessarily as a re-sult of their status. United States v.Wheeler, 435 U.S. 313, 323, 98 S.Ct.1079, 55 L.Ed.2d 303 (1978). ‘‘[U]ntilCongress acts, the tribes retain theirexisting sovereign powers.’’ Id TTTTT

N.L.R.B. v. Pueblo of San Juan, 276 F.3d1186, 1192 (10th Cir.2002) (footnote omit-ted).

‘‘[T]he doctrine of American Indian trib-al sovereignty is a legal and conceptualconundrum. ‘Domestic dependent na-tions,’ as Justice John Marshall famouslylabeled Indian tribes, are unique and para-doxical constructions.’’ 42 Yet there are‘‘many members of tribal nations forwhom ‘sovereignty’ is as common and he-artfelt a term as ‘rights’ is to most otherAmericans. Many tribal members per-ceive that their cultural survival is inextri-cably linked to their existence as separate,self-governing nations.’’ 43 The ‘‘core val-ues that sovereignty, by almost any defini-tion, is intended to protect TTT includeproviding peace and security, developingeconomic opportunities, and allowing forthe expression of social, cultural, and lin-guistic patterns’’ that signify ‘‘the contin-ued existence of Indian tribes as separatecultures,’’ 44 as ‘‘distinctly Indian communi-ties.’’ 45

It would be cynical indeed for a privatecivil litigant to treat tribal sovereignty as‘‘nothing more than an inconsistent, para-doxical legal shell that American case lawhas constructed,’’ 46 or to attempt to invoke‘‘tribal sovereignty’’ as nothing more thana clever scam or an artful dodge 47—which

42. Sarah Krakoff, A Narrative of Sovereignty:Illuminating the Paradox of the Domestic De-pendent Nation, 83 Or. L.Rev. 1109, 1110(2004).

43. Id.

44. Id. at 1116.

45. Sandoval, 231 U.S. at 46, 34 S.Ct. 1.

46. Krakoff, supra, at 1113.

47. Pro se litigants, no less than the membersof the Bar of this Court, are bound by the


clearly it is not.

SUMMARY

Granting leave for Richmond to file hisproposed amended petition would prove tobe futile—that is, it ‘‘would merely set thestage for the dismissal of the amended[petition],’’ AM Int’l, Inc. v. Graphic Man-agement Assocs., Inc., 44 F.3d at 578, be-cause (1) the named respondents owe nonondiscretionary, plainly defined, peremp-tory and affirmative legal duty to enforcethe lawful orders or judgments of an Indi-an tribal court; (2) relief in the nature ofmandamus is a drastic remedy, availableonly in extraordinary circumstances, AlliedChemical Corp. v. Daiflon, Inc., 449 U.S.33, 34–35, 101 S.Ct. 188, 66 L.Ed.2d 193(1980), and absent such a plainly definednondiscretionary duty, it is not available tocompel federal officers to enforce Indiantribal court orders as such; and (3) Rich-mond’s proposed amended pleading as-serts no legal basis warranting the grantby this court of extraordinary equitablerelief vacating orders entered in, or man-dating the dismissal of, civil actions filed inthe United States District Court for theSouthern District of California, the Cali-fornia Superior Court and the Third Dis-trict Court, State of Utah, to which Rich-mond is a party.

If Richmond has genuine objections tothe jurisdiction of those courts in those

cases, he may raise his objections beforethose courts, and if dissatisfied with theoutcome, he may file an appeal to theappropriate court of appeals. He cites tono controlling case authority—SupremeCourt or otherwise—even hinting that hemay resort to one or another ‘‘tribal court’’to wrest jurisdiction over those cases awayfrom the state and federal courts that haveadjudicated them, or that he may enlist theJudicial Power of the United States, vest-ed in this court by Article III of the Con-stitution, to aid him in that effort.

For these reasons,

IT IS ORDERED that the plaintiff’s‘‘Motion for Leave of Court to Amend Writof Mandamus to Conform with SubjectMatter Jurisdiction Issues Covered inCourt Order to Dismiss Without Preju-dice’’ (dkt. no. 11), is DENIED.

,

requirements of Rule 11 of the Federal Rulesof Civil Procedure:

(b) Representations to Court.By presenting to the court (whether by

signing, filing, submitting, or later advocat-ing) a pleading, written motion, or otherpaper, an attorney or unrepresented partyis certifying that to the best of the person’sknowledge, information, and belief, formedafter an inquiry reasonable under the cir-cumstances,—(1) it is not being presented for any im-proper purpose, such as to harass or to

cause unnecessary delay or needless in-crease in the cost of litigation;(2) the claims, defenses, and other legalcontentions therein are warranted by exist-ing law or by a nonfrivolous argument forthe extension, modification, or reversal ofexisting law or the establishment of newlaw; [and](3) the allegations and other factual conten-tions have evidentiary support or, if specifi-cally so identified, are likely to have eviden-tiary support after a reasonable opportunityfor further investigation or discovery; TTT