                                                          F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                           JAN 25 2002
                       FOR THE TENTH CIRCUIT
                                                      PATRICK FISHER
                                                                Clerk
EDSON GARDNER, AUN, Unitah
Mix-Blood Indian,

           Plaintiff-Appellant,

v.                                         No. 01-4037
                                       (D.C. No. 00-CV-153)
UTE TRIBAL COURT CHIEF                       (D. Utah)
JUDGE; GEORGE TAH-BONE, of the
Uintah and Ouray Indian Reservation;
UTE TRIBAL COUNCIL, BUSINESS
COMMITTEE; O. ROLAND
MCCOOK, SR., Chairman
(Uncompahgre) dba Ute Tribal
Council, or Business Committee as
Ute Indian Tribe; ROSALINE
TAVAPONT, Vice-Chairperson
(Uncompahgre), dba Ute Tribal
Council, or Business Committee as
Ute Indian Tribe; RONALD
WOPSOCK, Member (Uintah), dba
Ute Tribal Council, or Business
Committee as Ute Indian Tribe;
FLOYD WOPSOCK, Member
(Uintah), dba Ute Tribal Council, or
Business Committee as Ute Indian
Tribe; SMILEY ARROWCHIS,
Member (Whiteriver), dba Ute Tribal
Council, or Business Committee as
Ute Indian Tribe; KIRBY ARRIVE,
Member (Whiteriver), dba Ute Tribal
Council, or Business Committee as
Ute Indian Tribe; TOD J. SMITH,
Attorney; JOHN R. LEHMER,
Attorney

           Defendants-Appellees.
                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and          BRORBY , Senior
Circuit Judge.




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

unanimously that oral argument would not materially assist the determination

of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Edson Gardner appeals the dismissal of his lawsuit against various

Ute tribal entities and representatives. Because plaintiff has not shown federal

court jurisdiction over his claims, we affirm.

       Plaintiff filed a series of pleadings in the district court. In February 2000,

he attempted to file documents entitled “Extraordinary Writ and Mandamus” and

“Amendment Extraordinary Writ and Mandamus.” In these documents, plaintiff

alleged that he, a mixed-blood Uintah Indian, holds a possessory interest in the

Uintah Valley in Utah based on an 1861 treaty, and that the Ute Tribe was



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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wrongfully possessing and transferring the land. These pleadings were not filed,

however, because plaintiff failed to pay the filing fee.

      On September 7, 2000, plaintiff paid the filing fee and filed a document

entitled “Petition for Writ of Habeas Corpus and Evidentiary Hearing Requested.”

In his petition, plaintiff alleged that he was in the custody of the Ute tribal court

based on the court’s letters admonishing him against the unauthorized practice of

law and forbidding him from practicing in the tribal court because he lacked a law

license and was not a member of a federally recognized tribe. Plaintiff’s February

pleadings were also deemed filed at this time.

      After reviewing plaintiff’s pleadings, the district court concluded they

failed to state a claim. Plaintiff was directed to file an amended complaint clearly

setting forth his claims and the facts underlying the claims. Plaintiff responded

by filing a pleading containing new claims under section 2 of the Voting Rights

Act of 1965. Plaintiff’s amended complaint alleged that the Ute Tribe’s system of

election improperly disenfranchised mixed-blood Uintah Indians, and sought

declaratory and injunctive relief.

      Defendants moved for dismissal on both jurisdictional and procedural

grounds. After reviewing plaintiff’s amended complaint, the district court

granted defendants’ motions to dismiss. On appeal, plaintiff argues that the

district court erred in dismissing his “habeas” action because he raised a federal


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question regarding his possessory rights to the Uintah Valley, and a constitutional

question regarding his inability to practice in the tribal court. He also argues for

the first time on appeal that the Tribe subjected him to employment

discrimination. We do not consider this issue, however, because it was not

presented to the district court. Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.

1994).

         We begin by examining our jurisdiction, as we are required to do.       Bender

v. Williamsport Area Sch. Dist.    , 475 U.S. 534, 541 (1986) (holding “every federal

appellate court has a special obligation to satisfy itself . . . of its own

jurisdiction”) (quotation omitted). We have jurisdiction under 28 U.S.C. § 1291

to review the district court’s conclusion that it lacked subject matter jurisdiction.

See Robinson v. Union Pac. R.R.      , 245 F.3d 1188, 1190 (10th Cir. 2001). We

review the district court’s dismissal    de novo . E.F.W. v. St. Stephen’s Indian High

Sch. , 264 F.3d 1297, 1303 (10th Cir. 2001).       Plaintiff has the burden of

demonstrating the existence of subject matter jurisdiction by a preponderance of

the evidence. Robinson, 245 F.3d at 1191.

         The Ute Indian Tribe is a sovereign entity which may not be sued in

federal court unless its immunity has been clearly waived either by the Tribe or by

Congress. Id. at 1304. Plaintiff has not shown such a waiver for any of his

claims. Moreover, as plaintiff is not in “custody” as that word is defined in


                                             -4-
habeas case law, there is no jurisdiction over his habeas claim. See Maleng v.

Cook, 490 U.S. 488, 490-91 (1989) (noting that federal court has habeas

jurisdiction “only” when person requesting relief is in custody). Finally, section 2

of the Voting Rights Act, by its terms, does not apply. See 42 U.S.C. 1973(a)

(limiting provisions of statute to States and their political subdivisions).

      The judgment of the United States District Court for the District of Utah is

AFFIRMED.



                                                      Entered for the Court



                                                      Deanell Reece Tacha
                                                      Chief Judge




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