Amboh v. Clemente et al

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
KANDRA L. AMBOH,
Plaintiff,
v.
SPRING CLEMENTE; HON. BRUCE L
NELSON; and JEFFREY KURTZ, Tribal
Court Judge,
Defendants.
REPORT AND RECOMMENDATION
Case No. 2:25-cv-00159-HCN-JCB
District Judge Howard C. Nielson, Jr.
Magistrate Judge Jared C. Bennett
I NTRODUCTION1
Pro se Plaintiff Kandra L. Amboh (“Ms. Amboh”) is suing two judges of the Ute Indian
Tribal Court of the Uintah and Ouray Reservation (“Ute Tribal Court”) and an individual named
Spring Clemente (“Ms. Clemente”).2 Ms. Amboh seeks the return of two children whom she
says a Ute Tribal Court placed in Ms. Clemente’s custody and a declaratory judgment that the
Ute Tribal Court lacks jurisdiction over the children.3 Because Ms. Amboh is not challenging a
“detention by order of an Indian tribe,” this court should not issue a Writ of Habeas Corpus
1 This case is referred to Magistrate Judge Jared C. Bennett under 28 U.S.C. § 636(b)(1)(B).
ECF No. 17.
2 ECF No. 1.
3 ECF No. 1 at 1.
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regarding the alleged detention of the children.4 Additionally, this court should find that it lacks
jurisdiction to award Ms. Amboh the declaratory relief she is requesting. Therefore, the court
recommends Ms. Amboh’s claims be dismissed without prejudice. The court further
recommends that Ms. Amboh be given 30 days to file a motion seeking leave to amend her
Complaint to include allegations that would support this court’s jurisdiction and state a claim for
relief against the parties she names.
B ACKGROUND
Ms. Amboh filed an Application for Writ of Habeas Corpus and Petition for Declaratory
Judgment on March 4, 2025 (“Complaint”).5 The Complaint invokes this court’s jurisdiction
under the All Writs Act6 and the Indian Civil Rights Act.7 Ms. Amboh’s theory of the case
seems to be that the Ute Tribal Court ordered the children detained—presumably in an order
awarding custody of the children to Ms. Clemente—and the court was acting outside of its
jurisdiction when it did so.8 Ms. Amboh seeks the children’s return via a Writ of Habeas Corpus,
and she asks this court to declare that the Ute Tribal Court lacked jurisdiction over the children
because they are members of the Eastern Shoshone Tribe.9
4 25 U.S.C. § 1303 (“The privilege of the Writ of Habeas Corpus shall be available to any
person, in a court of the United States, to test the legality of his detention by order of an Indian
tribe.”) (emphasis added).
5 ECF No. 1.
6 28 U.S.C. § 1651.
7 25 U.S.C. § 1303. Both proposed sources of jurisdiction are found at ECF No. 1 at 2.
8 The court presumes this theory because it is not stated in Ms. Amboh’s Complaint and no
custody or detention order has been submitted to the court.
9 See generally ECF No. 1.
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The Complaint names as defendants Ms. Clemente and Ute Tribal Court judges Bruce L
Nelson (“Judge Nelson”) and Jeffrey Kurtz (“Judge Kurtz”) (together, “Judges”) (collectively,
“Defendants”). Ms. Amboh attaches two orders to the Complaint, one signed by each judge.10
These orders were issued in Ute Tribal Court Case No. cv-0099-24 and relate to an ex parte
domestic violence protection order against Ms. Amboh that Ms. Clemente sought and
temporarily received.11 Neither order mentions the children that are the subject of Ms. Amboh’s
requested relief.
Judge Kurtz and Judge Nelson filed a motion to dismiss Ms. Amboh’s claims on April 8,
2025 (“Judges’ MTD”),12 and, six days later, Ms. Clemente did so, as well (“Clemente
MTD”).13 The Judges’ MTD argues that this court lacks jurisdiction to consider the action and
that Ms. Amboh fails to state a claim for which relief can be granted. Among other things, the
Judges argue that Ms. Amboh failed to exhaust tribal court remedies before filing this federal
action.14 The Clemente MTD contends that no federal question exists to support this court’s
jurisdiction; that Ms. Clemente is not an Indian tribe, so she cannot be sued for habeas corpus
pursuant to 25 U.S.C. § 1303; and that there is no independent basis for jurisdiction that would
empower this court to issue a declaratory judgment.15
10 ECF No. 1-1.
11 ECF No. 1-1 at 1 of 5, ¶1.
12 ECF No. 6.
13 ECF No. 9.
14 ECF No. 6 at 4 of 7.
15 ECF No. 9 at 4-6 of 7.
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As shown below, the court first addresses the applicable legal standards in the parties’
motions. The court then discusses the motions to dismiss before turning to Ms. Amboh’s motion
to amend the Complaint.16
L EGAL S TANDARDS
I. 	Proceeding pro se
As Ms. Amboh is proceeding pro se, her pleadings and other filings are held “to a less
stringent standard than those drafted by attorneys.”17 Before dismissing a pro se plaintiff’s
complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the court must
determine whether to give the plaintiff leave to amend the complaint to cure any pleading
deficiencies.18 Indeed, “‘[d]ismissal of a pro se complaint for failure to state a claim is proper
only where it is obvious that the plaintiff cannot prevail on the facts [she] has alleged and it
would be futile to give [her] an opportunity to amend.’”19 Although a “pro se litigant’s
pleadings are to be construed liberally,” it is not “the proper function of the district court to
assume the role of advocate for the pro se litigant.” 20 The court “will not supply additional
facts, nor will [it] construct a legal theory for [a pro se] plaintiff that assumes facts that have not
been pleaded.”21
16 ECF No. 24.
17 Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007).
18 Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (providing that before dismissing a pro
se plaintiff’s complaint for failure to state a claim, “the district court should allow a [pro se]
plaintiff an opportunity to cure technical errors or otherwise amend the complaint when doing
so would yield a meritorious claim”).
19 Kay v. Bemis, 500 F.3d 1214 at 1217 (10th Cir. 2007) (quoting Curley, 246 F.3d at 1281).
20 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
21 Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam).
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II. 	Motion to Dismiss under Rule 12(b)(1)
Fed. R. Civ. P. 12(b)(1) provides that a party may move to dismiss a claim by asserting
that the court lacks subject matter jurisdiction.22 The burden of establishing subject matter
jurisdiction “rests upon the party asserting jurisdiction.”23 Under Rule 12(b)(1), the court should
“presume no jurisdiction exists absent a showing of proof by the party asserting federal
jurisdiction.”24 A plaintiff “must allege in [a] pleading the facts essential to show jurisdiction,
and must support [those facts] by competent proof.”25
“A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction can take two
forms: a facial or a factual attack.”26 The key difference is that a factual attack relies on
materials not contained in the pleading to show the court lacks jurisdiction. “A facial attack
assumes the allegations in the complaint are true and argues they fail to establish jurisdiction. A
factual attack goes beyond the allegations in the complaint and adduces evidence to contest
jurisdiction.”27 Unlike evaluations of facial attacks, “[w]hen reviewing a factual attack on
subject matter jurisdiction, a district court may not presume the truthfulness of the complaint’s
factual allegations.”28
22 Fed. R. Civ. P. 12(b)(1). See also Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500, 507
(10th Cir. 2023).
23 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
24 United States ex rel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548, 551 (10th Cir. 1992).
25 Id. (second alteration in original) (citation modified).
26 Grace Bible Fellowship v. Polis, No. 23-1148, 2024 WL 1340201, at *2 (10th Cir. Mar. 29,
2024), cert. denied, 145 S. Ct. 379, 220 L. Ed. 2d 143 (2024).
27 Baker v. USD 229 Blue Valley, 979 F.3d 866, 872 (10th Cir. 2020) (citation modified).
28 Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
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III. 	Motion to Dismiss under Rule 12(b)(6)
A court conducting an analysis under Rule 12(b)(6) must “accept the well-pleaded facts
alleged as true and view them in the light most favorable to the plaintiff.”29 A complaint must
contain “‘enough facts to state a claim to relief that is plausible on its face.’”30 “‘A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’”31 “[I]n examining
a complaint under Rule 12(b)(6), [the court] disregard[s] conclusory statements and look[s] only
to whether the remaining, factual allegations plausibly suggest the defendant is liable.”32 Fed. R.
Civ. P. 8 is incorporated into the court’s Rule 12(b)(6) analysis.33 Rule 8 requires that a
complaint contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” A complaint does not meet this standard “if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’”34
IV. 	Motion to Amend the Complaint under Rule 15(a)
Fed. R. Civ. P. 15(a) establishes that a party may amend its complaint once as a matter of
course within a specified temporal window. The rule also provides that a party that fails to
amend within that window may amend its pleading only with the opposing party’s written
29 Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th Cir. 2023).
30 Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
31 Moses-El v. City & Cnty. of Denver, No. 20-1102, 2022 WL 1741944, at *7 (10th Cir. May
31, 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
32 Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
33 United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1171 (10th Cir.
2010).
34 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557) (alteration in original).
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consent or by leave of the court.35 In this latter instance, the “court should freely give leave [to
amend] when justice so requires.”36 However, if an amendment would be futile—i.e., if the
“claims would still be subject to dismissal even if amended”37—then the court “‘may dismiss
without granting leave.’”38 “Thus, in evaluating a proposed amendment for futility, the court
must apply the same standard it would apply in evaluating a Rule 12(b)(6) motion to dismiss the
proposed amended complaint.”39 Additionally, under the District of Utah’s local rules, a pro se
party moving under Rule 15(a)(2) for leave to amend a complaint must attach the proposed
amended pleading as an exhibit to the motion.40
ANALYSIS
I. 	The Motions to Dismiss Should Be Granted for Lack of Subject Matter Jurisdiction,
but Ms. Amboh Should Be Given the Opportunity to Move to Amend Her Complaint.
The court should grant the motions to dismiss for want of subject matter jurisdiction. As
an initial matter, the court construes the Judges’ MTD41 and the Clemente MTD42 as mounting
facial rather than factual attacks to the allegations in the Complaint because neither motion
35 Fed. R. Civ. P. 15(a).
36 Fed. R. Civ. P. 15(a)(2).
37 Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1151 (10th Cir. 2013).
38 Id. (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006)).
39 Golden v. Mentor Capital, Inc., No. 2:15-CV-176-JNP-BCW, 2015 WL 13631247, at *1 (D.
Utah Sept. 29, 2015) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)).
40 DUCivR 15-1(a)-(b).
41 ECF No. 6.
42 ECF No. 9.
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provides evidence beyond the Complaint’s allegations. Thus, the court “presumes the factual
allegations in the Complaint are true for purposes of Defendants’ jurisdictional challenges.”43
In addressing subject matter jurisdiction, the court first addresses Ms. Amboh’s lack of
Article III standing to sue Ms. Clemente. The court then examines three potential sources of
federal question jurisdiction—28 U.S.C. § 1331, 28 U.S.C. § 1651, and 25 U.S.C. § 1303—and
finds each lacking.
A. Ms. Amboh Lacks Article III Standing to Sue Ms. Clemente.
Ms. Amboh does not have Article III standing to sue Ms. Clemente. The doctrine of
standing serves to ensure that “federal courts only hear cases consistent with the jurisdictional
limits articulated in [Article III of] the Constitution”44 by requiring that courts only adjudicate
“‘Cases’ or ‘Controversies.’”45 “Article III standing is a prerequisite to every lawsuit in federal
court . . . [and ‘e]ach plaintiff must have standing to seek each form of relief in each claim.’”46
To establish Article III standing:
a plaintiff bears the burden of demonstrating: (1) it has suffered an
“injury in fact” that is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.47
43 Shash v. City of Pueblo, 770 F. Supp. 3d 1279, 1291 (D. Co. 2025)
44 Atlas Biologicals, Inc. v. Kutrubes, 50 F.4th 1307, 1325 (10th Cir. 2022)
45 Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007) (quoting U.S. Const. art. III, § 2,
cl. 1).
46 Bishop v. Smith, 760 F.3d 1070, 1088 (10th Cir. 2014) (quoting Bronson, 500 F.3d at 1106).
47 Bronson, 500 F.3d at 1106 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 180–81 (2000)).
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The requirements of constitutional standing are often shortened into three main elements:
injury-in-fact, causation, and redressability. Assuming Ms. Amboh can establish an injury, her
claims against Ms. Clemente fail to establish the causation and redressability elements of
standing.
The injury Ms. Amboh alleges most clearly is that her children have been unlawfully
placed in Ms. Clemente’s custody.48 Ms. Amboh forwards no allegations that Ms. Clemente
caused this injury and it is not apparent how this injury could be fairly traceable to Ms.
Clemente’s actions. Although the Complaint contains few factual averments, if the court
supposes arguendo that Ms. Clemente petitioned the court for custody of the children, her
lawful petitioning is not the sort of injurious action that sustains a plaintiff’s burden to establish
standing. The potential cause of any legally cognizable injury Ms. Amboh alleges here is the
court’s determination of the custody of the children, not any action on Ms. Clemente’s part.49
Accordingly, the court should find that Ms. Amboh fails to sustain her burden of establishing the
causation element of Article III standing in relation to her claims against Ms. Clemente. 50
Ms. Amboh similarly has failed to establish that the positive resolution of her claims
against Ms. Clemente would redress the injury underlying her complaint. Even if the court were
to award all the relief Ms. Amboh requests, the Writ of Habeas Corpus would target the tribal
court, not Ms. Clemente, and the declaratory judgment would have no bearing on her.
48 ECF No. 1.
49 See infra n.61.
50 A similar infirmity is apparent in Ms. Amboh’s claims against the Judges, but there Ms.
Amboh at least alleges—with little, if any, factual support—the existence of a Ute Tribal Court
action removing the children. ECF No. 1 at ¶ 1.
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Moreover, no claim in this litigation provides a legal basis for the court to order Ms. Clemente
to relinquish custody of the children.51 There is no relief that the court could order as to Ms.
Clemente that would redress the injury alleged by Ms. Amboh. Therefore, the court should find
that Ms. Amboh failed to establish Article III standing as to Ms. Clemente, which means that
this court lacks subject matter jurisdiction over the claims against Ms. Clemente.
B. Subject Matter Jurisdiction Does Not Exist Under 28 U.S.C. § 1331.
Both Ms. Clemente and the Judges challenge the existence of a federal question
sufficient to invoke this court’s jurisdiction.52 “Federal courts are courts of limited jurisdiction.
They possess only that power authorized by Constitution and statute which is not to be
expanded by judicial decree.”53 The United States Constitution extends the judicial power to
“all Cases . . . arising under . . . the Laws of the United States.”54 This provision of Article III is
codified in 28 U.S.C. § 1331. “The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”55 To determine
whether a civil action “arises under” the laws of the United States, the court reviews the
51 LaBeau v. Dakota, 815 F. Supp. 1074, 1076–77 (W.D. Mich. 1993) (“[T]he action would be
dismissed even if plaintiff brought it as a habeas claim, unless the tribal court acted outside its
jurisdiction, because a writ of habeas corpus is not available to test the validity of the child
custody decree issued by a tribal court.”)
52 ECF Nos. 6 and 9.
53 United States v. Hopson, 150 F.4th 1290, 1297 (10th Cir. 2025) (quoting Kokkonen, 511 U.S.
at 377 (1994)).
54 U.S. Const. art. III, § 2, cl. 1.
55 28 U.S.C. § 1331.
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allegations of the complaint.56 Section 1331 does not, on its own, create a federal question.
Federal question jurisdiction exists “only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.”57 As a well-pleaded allegation of a federal question to
be resolved by a federal court is absent from Ms. Amboh’s Complaint, the court should find that
§ 1331 does not provide jurisdiction for this action.
C. There is no Subject Matter Jurisdiction under 28 U.S.C. § 1651.
Section 1651 of Title 28 of the U.S. Code does not establish federal question jurisdiction
here because that section provides that district courts “may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of
law.”58 By the plain language of the statute, § 1651 does not itself provide jurisdiction; it merely
allows courts to issue writs in aid of jurisdiction deriving from another statutory source.59
Consequently, the court should find that § 1651 does not, on its own, provide this court with
jurisdiction over Ms. Amboh’s claims toward any of the Defendants. Absent an independent
56 Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (“[A] suit arises under the
Constitution and laws of the United States only when the plaintiff’s statement of his own cause
of action shows that it is based upon those laws or that Constitution.”).
57 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
58 28 U.S.C.A. § 1651(a) (emphasis added). Section 1651(b) provides that “An alternative writ
or rule nisi may be issued by a justice or judge of a court which has jurisdiction.”
59 Com. Sec. Bank v. Walker Bank & Tr. Co., 456 F.2d 1352, 1355 (10th Cir. 1972) (“Section
1651(a) does not operate to confer jurisdiction; ancillary jurisdiction is provided where
jurisdiction is otherwise already lodged in the court. No new grant of judicial power is
contemplated by the statute; § 1651(a) is rather only an incident of jurisdiction. An order may
issue pursuant to this statute to preserve jurisdiction already lawfully acquired, but a court may
not, by said order, acquire jurisdiction over an individual or property not otherwise subject to its
jurisdiction.”).
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source of jurisdiction, Ms. Amboh’s request for a declaratory judgment likewise fails and should
be dismissed without prejudice.
D. 25 U.S.C. § 1303 Does Not Establish Subject Matter Jurisdiction.
Section 1303 of Title 25 of the U.S. Code provides that “[t]he privilege of the Writ of
Habeas Corpus shall be available to any person, in a court of the United States, to test the
legality of his detention by order of an Indian tribe.” Ms. Amboh seeks two forms of relief: the
return of the two children from Ms. Clemente’s custody and a declaratory judgment that the Ute
Tribal Court did not have jurisdiction over the children because the children are enrolled
members of the Eastern Shoshone Tribe.60
Taking the request for declaratory judgment first, § 1303 does not provide jurisdiction
for this court to issue the type of declaratory relief Ms. Amboh requests. “Under Supreme Court
precedent, declaratory and injunctive relief and money damages are not available under the
ICRA.”61 Accordingly, the court should find that it lacks jurisdiction to issue a declaratory
judgment pursuant to 25 U.S.C. § 1303.
60 Ms. Amboh’s requests for relief are reproduced here in their entirety: “Plaintiff Amboh moves
this Tribal Court Hon. Bruce L Nelson, Judge of Ute Tribal Court to issue the Writ of Habeas
Corpus in the instant case determining that all Two Eastern Shoshone boy Indian Children Be
returned to their mother, as Defendant Clemente, in not the legal mother; to enter finding that
the children are being illegally detained from Plaintiff Amboh, and the Ute Tribal Court; that
this District Court of Utah should issue the Declaratory judgment determining that Plaintiff
Amboh is authorized under federal law to file action in federal Court, and that tribal court lacks
jurisdiction over Eastern Shoshone Indians and enter an order; and where the Plaintiff Eastern
Shoshone Indian mother object to removal or presentation of the case in the Ute Tribal Court.”
ECF No. 1 at 3.
61 Kaw Nation ex rel. McCauley v. Lujan, 378 F.3d 1139, 1142 (10th Cir. 2004) (citing Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 69–70 (1978) (relief under the ICRA is limited to a Writ
of Habeas Corpus)).
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Ms. Amboh’s request for a Writ of Habeas Corpus fares no better for three reasons. First,
§ 1303 appears to apply to a person challenging their own, rather than another person’s,
detention.62 Second, the provision pertains to a person’s detention, which is different than a
child custody determination. Finally, even if Ms. Amboh were able to establish the first two
requirements under § 1303,63 she cannot meet the third. The last few words of § 1303 reveal the
fatal flaw. Habeas relief is available to challenge “detention by order of an Indian tribe,” but Ms.
Amboh does not forward well-pleaded allegations that the children are being detained by order
of an Indian tribe.64
Ms. Amboh alleges that the children are being “illegally detained”65 and that the “Ute
[T]ribal [C]ourt granted the defendant Spring Clemente[] custody of Plaintiff Amboh[’s] Two
62 25 U.S.C. § 1303 (“The privilege of the Writ of Habeas Corpus shall be available to any
person . . . to test the legality of his detention by order of an Indian tribe.” (emphasis added)).
63 Federal courts have, in rare cases, sanctioned the use of § 1303 habeas relief as a vehicle to
enforce state court child custody determinations that were not given full faith and credit by
tribal courts. See, e.g., DeMent v. Oglala Sioux Tribal Ct., 874 F.2d 510 (8th Cir. 1989);
Nygaard v. Taylor, 563 F. Supp. 3d 992 (D.S.D. 2021). This supports the notion that Ms. Amboh
may use § 1303 to challenge the children’s detention, not just her own, and that federal habeas
relief may be available in a child custody context where an issuing court overstepped its
jurisdiction. These courts frame the issue as an inquiry into a tribal court’s jurisdiction, not an
inquiry into the underlying custody dispute. LaBeau v. Dakota, 815 F. Supp. 1074, 1076–77
(W.D. Mich. 1993). These, however, remain rare cases. DeMent, 874 F.2d at 515 (“Federal
habeas corpus, however, has generally not been available to challenge a state decree on parental
rights or child custody.” (citing Lehman v. Lycoming County Children's Services Agency, 458
U.S. 502, 511 (1982))); Nygaard, 563 F. Supp. 3d at 1012 (“Courts have thus concluded that
under normal circumstances, § 1303 does not allow petitioners to collaterally attack a tribal
child custody order.” (collecting cases)).
64 Missing from Ms. Amboh’s Complaint is any information about a purported tribal court
custody order; any order from a Ute Tribal Court that concerns the children; any information
about the Ute Tribal Court ordering the detention of the children; or a well-pleaded allegation
that such an order exists.
65 ECF No. 1-2; ECF No. 1 at 1, 3.
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Eastern Shoshone Indian Children.”66 The court must take the well-pleaded allegations in Ms.
Amboh’s Complaint as true for the purposes of evaluating the motions to dismiss, but the court
is not required to accept implausibilities or blind itself to contradictions contained in the
pleading itself.67 The Ute Tribal Court orders that Ms. Amboh attached to the Complaint state
that Ms. Amboh claimed she was involved in a child custody matter in the Eighth District
Juvenile Court, which is a Utah State Court,68 and that Ms. Amboh’s child custody matter in
state court is “completely out of [the Ute Tribal C]ourt’s jurisdiction.”69 Ms. Amboh must
supply the allegations essential to show jurisdiction—here, that she is challenging detention by
order of an Indian tribe—and must support those facts with competent proof.70 Instead, Ms.
Amboh has submitted court orders that undercut her own allegations.
Because there is no well-pleaded allegation in the Complaint that a Ute Tribal Court
order is detaining the children,71 Ms. Amboh fails to state a claim under § 1303. Accordingly,
66 ECF No. 1 at ¶ 1.
67 Twombly, 550 U.S. at 557 (2007) (“[A naked assertion of conduct] gets the complaint close to
stating a claim, but without some further factual enhancement it stops short of the line between
possibility and plausibility of ‘entitle[ment] to relief.’” (second alteration in original)). The
court acknowledges that Ms. Amboh is proceeding pro se, but that does not excuse her
obligation to comply with the basic requirements of the Federal Rules of Civil Procedure.
Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994); Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994) (“This court has repeatedly insisted that pro se parties ‘follow the same
rules of procedure that govern other litigants.’” (quoting Green v. Dorrell, 969 F.2d 915, 917
(10th Cir. 1992)).
68 ECF No. 1-1 at 1 ¶ 4.
69 ECF No. 1-1 at 2 ¶ E; ECF No. 1-1 at 3 ¶ V.
70 U.S. ex rel. Precision Co., 971 F.2d at 551.
71 The court does not analyze whether the children are “detained” for the purposes of § 1303.
The court notes, however, that the Complaint lacks well-pleaded allegations that the children are
being detained. The closest Ms. Amboh’s Complaint comes to alleging detention are two
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the court lacks jurisdiction to issue a Writ of Habeas Corpus returning the children to Ms.
Amboh’s custody and should dismiss Ms. Amboh’s claims without prejudice. However, there is
a set of facts consistent with Ms. Amboh’s Complaint that would support this court’s
jurisdiction and state a claim for relief.72 As such, the court should grant Ms. Amboh 30 days to
file a motion to amend her Complaint to include those allegations.
II. 	Ms. Amboh Has Failed to State a Claims Upon Which Relief Can Be Granted by
Failing to Exhaust Tribal Remedies.
Ms. Amboh fails to state a claim under Rule 12(b)(6) because she failed to exhaust her
remedies in tribal court. Ms. Amboh’s failure to exhaust tribal court remedies provides an
alternate basis upon which to dismiss her Complaint against the Judges.73 Even if Ms. Amboh
qualified for relief under 25 U.S.C. § 1303,74 she was required but failed to exhaust her
remedies in tribal court before bringing this action. “The tribal exhaustion rule requires that
‘absent exceptional circumstances, federal courts typically should abstain from hearing cases
that challenge tribal court jurisdiction until tribal court remedies, including tribal appellate
assertions with no factual support that the two boys are “being illegally detained.” ECF No. 1 at
1, 3. Elsewhere in the Complaint, however, Ms. Amboh makes clear that this “detention” is Ms.
Clemente’s custody of the children, the provenance of which seems to be a Utah State Court
order, notwithstanding Ms. Amboh’s assertions to the contrary.
72 See supra n.61 & 62.
73 Chegup v. Ute Indian Tribe of Uintah & Ouray Rsrv., 28 F.4th 1051, 1060 (10th Cir. 2022)
(“All federal courts also generally have ‘leeway to choose among threshold grounds for denying
audience to a case on the merits.’” (quoting Valenzuela v. Silversmith, 699 F.3d 1199, 1205
(10th Cir. 2012))).
74 Kaw Nation, 378 F.3d at 1142 (“[Under Nat’l Farmers Union Ins. Companies v. Crow Tribe,
471 U.S. 845, 851–53 (1985)] the outer boundaries of tribal jurisdiction—particularly over non-
members—may be a matter of federal law.”).
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review, are exhausted.’”75 The tribal exhaustion rule is “based on comity concerns for Indian
tribes in maintaining their remaining sovereignty.”76 It is “not a jurisdictional prerequisite to
review.”77
The U.S. Supreme Court created the tribal exhaustion requirement and recognized that
the rule advanced the following interests: “(1) furthering [the] congressional policy of
supporting tribal self-government; (2) promoting the orderly administration of justice by
allowing a full record to be developed in the tribal court; and (3) obtaining the benefit of tribal
expertise if further review becomes necessary.”78 Although § 1303 does not explicitly state that
petitioners must exhaust their claims in tribal court before litigating them in federal court,79 the
United States Court of Appeals for the Tenth Circuit has concluded that the purposes underlying
the tribal exhaustion rule support applying it to § 1303 petitions.80 “At a minimum, exhaustion
of tribal remedies means that tribal appellate courts must have the opportunity to review the
determinations of the lower tribal courts.”81
75 Thlopthlocco Tribal Town v. Stidham, 762 F.3d 1226, 1237 (10th Cir. 2014) (quoting Crowe &
Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1149 (10th Cir. 2011)).
76 Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1507 (10th Cir. 1997).
77 Valenzuela, 699 F.3d at 1206 (citation modified).
78 Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1507 (10th Cir. 1997) (citing National Farmers,
471 U.S. at 856-57).
79 Cf. 28 U.S.C. § 2254.
80 Valenzuela, 699 F.3d at 1205–06; see also Chegup, 28 F.4th at 1061 (“[W]e apply the tribal
exhaustion rule to § 1303 petitions.”) (citation modified)).
81 Chegup, 28 F.4th at 1060 (quoting Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 17 (1987)).
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Ms. Amboh was required to exhaust tribal court remedies before bringing this action.
Ms. Amboh appears to concede that she has not exhausted remedies but argues that she is not
required to do so.82 The Tenth Circuit has identified five exceptions to the tribal exhaustion rule:
We 	have 	recognized 	that 	exhaustion 	of 	tribal 	remedies 	is
unnecessary 	“(1) 	where 	an 	assertion 	of 	tribal 	jurisdiction 	is
motivated by a desire to harass or is conducted in bad faith;
(2) where the tribal court action is patently violative of express
jurisdictional prohibitions; (3) where exhaustion would be futile
because of the lack of an adequate opportunity to challenge the tribal
court’s jurisdiction; (4) when it is plain that no federal grant provides
for tribal governance of nonmembers’ conduct on land covered by
the main rule established in Montana v. United States, 450 U.S. 544,
101 S.Ct. 1245, 67 L.Ed.2d 493 (1981); or (5) it is otherwise clear
that the tribal court lacks jurisdiction so that the exhaustion
requirement would serve no purpose other than delay.”83
The court “require[s] a party invoking any of these exceptions to make a substantial showing of
eligibility.”84
Ms. Amboh makes no showing—much less a substantial one—that her claims are
eligible for any of these exceptions. The court takes each in turn. The Complaint contains no
well-pleaded allegation that the tribal court asserted jurisdiction over the children in bad faith or
because of a desire to harass. The tribal court action Ms. Amboh challenges is not “patently
violative of express jurisdictional prohibitions” because the court orders that Ms. Amboh
attached to the Complaint show that she willingly consented to the jurisdiction of the tribal
82 ECF No. 13 at 6-7 (“Plaintiff Amboh asserts that she need not exhaust remedies in tribal court
before presenting the instant Application for Writ of Habeas Corpus”).
83 Chegup, 28 F.4th at 1061 (10th Cir. 2022) (citing Norton v. Ute Indian Tribe of the Uintah &
Ouray Rsrv., 862 F.3d 1236, 1243 (10th Cir. 2017)).
84 Id. (quoting Becker v. Ute Indian Tribe of the Uintah & Ouray Rsrv., 11 F.4th 1140, 1149
(10th Cir. 2021)).
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court evaluating the protective order, and there is no information about any other tribal court
proceeding.85 Ms. Amboh did not “lack of an adequate opportunity to challenge the tribal
court’s jurisdiction” because the Ute Tribal Court has an appeals process and Ms. Amboh had
the ability to file a petition for habeas relief in tribal court.86 The fourth exception is
inapplicable because this case does not concern a “federal grant provid[ing] for tribal
governance of nonmembers’ conduct on land covered by the main rule established in [Montana,
450 U.S. 544]”.87 Finally, the exhaustion requirement will do more than merely delay the
inevitable. The most charitable reading of Ms. Amboh’s Complaint—that the Ute Tribal Court
had no jurisdiction to issue a child custody determination over Eastern Shoshone children—
presents an issue that the Ute Indian Appellate Court likely would have ably considered and is
not so clear-cut as to render futile the filing of an appeal. Accordingly, the court should dismiss
Ms. Amboh’s claims without prejudice88 for failure to exhaust tribal court remedies.89
85 ECF No. 1-1 at 2.
86 Ute Law and Order Code § 1-3-1(1); § 2-2-34.
87 See Montana, 450 U.S. 544; see also Norton, 862 F.3d at 1244-46.
88 Valenzuela, 699 F.3d at 1208 (“Because our decision relies on Mr. Valenzuela’s failure to
exhaust, we remand to the district court to dismiss Mr. Valenzuela’s § 1303 petition without
prejudice. See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1139 (10th Cir. 2005) (‘[A]
dismissal based on lack of exhaustion should ordinarily be without prejudice.’).” (alteration in
original)).
89 Additionally, Ms. Amboh claims she is not required to exhaust remedies in Ute Tribal Court
because she is not a member of that tribe. ECF No. 15 at 3; ECF No. 13 at 7. The U.S. Supreme
Court held in 1990 that “Indian tribes lack jurisdiction over persons who are not tribe
members.” Duro v. Reina, 495 U.S. 676, 685 (1990). The U.S. Congress legislatively overturned
that holding the next year. United States v. Lara, 541 U.S. 193, 210 (2004) (“Title 25 U.S.C. §
1301(2), as amended by Act of Oct. 28, 1991, 105 Stat. 646, provides: ‘“[P]owers of self-
government” means and includes all governmental powers possessed by an Indian tribe,
executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which
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III. 	Ms. Amboh’s Motion to Amend Her Complaint Should be Denied Without
Prejudice.
Ms. Amboh attempts to plead two additional claims in her motion to amend the
Complaint.90 First, she claims that Judge Nelson and Judge Kurtz have failed to train and
supervise tribal court staff. Ms. Amboh invokes this court’s jurisdiction pursuant to the Indian
Child Welfare Act, 25 U.S.C. § 1901 (“ICWA”). Next, Ms. Amboh alleges Judge Nelson and
Judge Kurtz have violated the ICWA, 25 U.S.C. § 1914, and the Due Process Clause of the 14th
Amendment to the U.S. Constitution by “failing to end the out-of-home placement of Indian
children when the reasons give[n] at the 48-hour hearing for such placement have ended.”91
DUCivR 15-1 applies to motions to amend pleadings in the District of Utah. A party
represented by counsel must attach two exhibits to the motion for leave to amend a pleading:
(1) the proposed amended pleading, i.e. the pleading the party would file if granted leave by the
court; and (2) a redlined version of the proposed amended pleading comparing it with the
pleading the party seeks to amend.92 The rule exempts pro se parties from providing the court
with a redlined version of the proposed amended pleading, but still requires pro se parties to
provide the court with the proposed amended pleading.93 Ms. Amboh’s motion to amend her
Complaint contains two paragraphs devoted to the proposed new claims and two pages to
they are executed, including courts of Indian offenses; and means the inherent power of Indian
tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.’”
(alteration in original) (emphases added)). Ms. Amboh’s argument is meritless.
90 ECF No. 24.
91 ECF No. 24 at 3 of 6.
92 DUCivR 15-1(a).
93 DUCivR 15-1(b).
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arguments as to why the court should grant the motion. Ms. Amboh has not provided the court
with a proposed amended complaint. For this reason, the court should deny Ms. Amboh’s
motion to amend the Complaint.
The court should deny Ms. Clemente’s motion to amend the Complaint without
prejudice, however, because until the court reviews the allegations in a proposed amended
complaint, it is not prepared to rule on whether the proposed amendments state a claim.
Conceivably, there is a set of facts that would both provide jurisdiction and state a claim, and
Ms. Amboh should be granted 30 days within which to file a motion for leave to amend her
Complaint containing those allegations. If she fails to seek leave to amend, or if the new
proposed amendments fail to establish subject matter jurisdiction of a claim for relief, the court
will recommend denial of the motion to amend the complaint and dismissal with prejudice.
RECOMMENDATION
For the reasons stated above, the court HEREBY RECOMMENDS as follows:
(1) The motions to dismiss filed by Judge Nelson and Judge Kurtz94 and Ms. Clemente95
should be GRANTED.
(2) Ms. Amboh’s claims should be DISMISSED WITHOUT PREJUDICE because the
court lacks jurisdiction to hear Ms. Amboh’s claims under 28 U.S.C. § 1331, 28
U.S.C. § 1651, and 25 U.S.C. § 1303.
94 ECF No. 6.
95 ECF No. 9.
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(3) Alternatively, if the court finds that it has subject matter jurisdiction, Ms. Amboh’s
claims should be DISMISSED WITHOUT PREJUDICE for failure to exhaust tribal
court remedies.
(4) Ms. Amboh’s motion to amend her Complaint96 should be DENIED WITHOUT
PREJUDICE.
(5) The court should disregard Ms. Amboh’s two notices of supplemental authority.97
(6) The court should grant Ms. Amboh 30 days to file a motion for leave to file an
amended complaint that complies with DUCivR 15-1 and includes well-pleaded
allegations that support this court’s jurisdiction and state a claim against the parties
named.
NOTICE TO PARTIES
Copies of this Report and Recommendation are being sent to all parties, who are hereby
notified of their right to object.98 The parties must file any objections to this Report and
96 ECF No. 24.
97 ECF Nos. 26 and 27. The submission of supplemental authority is governed by DUCivR
7-1(c). That rule allows a party to file a Notice of Supplemental Authority when “pertinent and
significant authority” comes to the attention of the party before a court has entered a decision on
a motion. Such a notice must not exceed two pages, must not contain argument, and must
include the reasons why the authority is relevant and point to the page of a previously filed
memorandum to which the supplemental authority pertains. DUCivR 7-1(c)(1)(A)-(B).
Ms. Amboh’s notices of supplemental authority violate DUCivR 7-1 in several ways. Both
exceed two pages, contain new arguments, and fail to reference the page of a previously filed
memorandum to which the supplemental authority pertains. Additionally, the notices do not
contain authority that is pertinent to the claims Ms. Amboh forwarded in her Complaint. For
these reasons, the court should disregard them.
98 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
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Recommendation within 14 days after being served with a copy of it.99 Failure to object may
constitute waiver of objections upon subsequent review.
IT IS SO ORDERED.
DATED this 28th day of January 2026.
BY THE COURT:
JARED C. BENNETT
United States Magistrate Judge
99 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
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