GM 15-021

Appellate Court Rules Against Tribal Court Jurisdiction in State Highway Case

The U.S. Court of Appeals for the Ninth Circuit ruled in EXC Inc. v. Jenson that the Navajo Nation does not have jurisdiction over a tour bus accident that killed a man and led to his pregnant wife’s miscarriage. Both were Navajo members. The accident occurred on a state highway running through the Navajo reservation. Members of the deceased Navajo man’s family sued the tour operator in tribal court. The defendant moved to dismiss claiming that the Navajo tribal court lacked jurisdiction over it. The federal district court agreed, based on the U.S. Supreme Court decision in Strate v. A–1 Contractors, 520 U.S. 438 (1997). On December 23, 2014, the Ninth Circuit upheld the district court’s ruling.

In EXC Inc., the district court held that the Navajo Nation has not, by treaty or otherwise, retained the right to exclude non-Indians from the state highway, and thus the highway is the equivalent of non-Indian fee land for jurisdictional purposes. The lower court turned to Strate for the next step in its analysis.

In Strate, the Supreme Court held that the tribal court of the Three Affiliated Tribes of the Fort Berthold Reservation could not exercise civil jurisdiction over a case involving a car accident between non-Indians that took place on a state highway running through the Tribe’s reservation. In the EXC Inc. case, the Ninth Circuit agreed with the district court that under Strate, the only instance in which the tribal court could exercise non-consented-to jurisdiction was if the case fell within either of the first two exceptions set forth in Montana v. United States, 450 U.S. 544 (1981). The district court held that the tour operator’s activity – carrying tourists to visit the Navajo Community – was not enough in itself to imply consent to tribal court jurisdiction and thus did not meet the requirements of the first Montana exception for “activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” The Ninth Circuit upheld the district court’s ruling.

The district court also held that the case did not fall under the second Montana exception, which allows tribes to exercise jurisdiction over nonmember conduct “when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” In Strate, the Court indicated that a routine automobile negligence case involving non-Indian defendants does not meet the second Montana exception because, if it did, the “exception would severely shrink the rule.” In EXC, Inc., the district court extended that reasoning to encompass driving by a non-Indian driver who negligently injured Indians on a state highway running through the reservation. The Ninth Circuit took an even broader view, saying that a “tort [negligence] suit arising out of a state highway accident does not implicate the second Montana exception.”

The Navajo plaintiffs argued that the tour operator had failed to obtain a permit from the Tribe, as required by tribal law. The permit provides that the permittee consents to tribal jurisdiction over “lands within the jurisdiction of the Navajo Nation.” Therefore, plaintiffs argued, since the tour operator had violated tribal law, it should be treated the same as if it had consented to tribal jurisdiction. The court rejected that argument, because the tribal law only required consent to tribal jurisdiction over lands which the Tribe already had jurisdiction, and the Tribe did not have jurisdiction over the highway. (Note: the Tribe is considering extending its permit consent clause to state highways within the reservation.)

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