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January 01, 2017

Appearing in Tribal Court

There are sometimes good reasons for submitting to a tribal court’s jurisdiction.

Brian K. Nichols

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Comedian Samantha Bee recently aired a segment on her satirical TV news program about the jurisdiction of tribal courts—the authority of tribal nations to hear criminal and civil claims involving non-Indians. The segment wasn’t just funny; it also persuasively made many of the arguments supporters of tribal jurisdiction have used themselves (although not always successfully). Bee primarily focused on issues related to tribal courts’ criminal jurisdiction, but some of the same issues also occur in civil matters and are encountered by non-Indians who do business with tribal nations or on tribal land.

Non-Indian businesses have historically been cautious about litigating in tribal courts, for reasons such as uncertainty about the content of tribal law; uncertainty whether federal law, including preemption defenses, applies in tribal court; the fact that the U.S. Constitution does not apply to tribes or in tribal court; that tribal courts may not be independent of other branches of tribal government; and that non-Indians cannot be citizens or members of tribal nations and therefore usually may not serve on tribal legislatures or juries. Tribal officials are also not subject to the deterrent to wrongful conduct provided by tort claims and civil rights claims under 42 U.S.C. § 1983, in part due to sovereign immunity. Add to this the diversity of tribal governments, tribal treaty rights, and tribal land status, and it is not hard to see why non-Indians carefully consider appearing in tribal court, including on civil matters. And some of these reasons have been noted by the U.S. Supreme Court in its decisions limiting tribal court jurisdiction over non-Indians.

But despite the Supreme Court’s limitations on the extent of tribal court jurisdiction, there may be good reasons for non-Indians to consider consenting to tribal court jurisdiction, expressly or by conducting business on or with tribal nations. One reason is arbitration. Tribal nations are sometimes willing to agree to arbitrate disputes in private, non-Indian forums, although this requires a waiver of sovereign immunity. That waiver may be contingent on agreeing to tribal court jurisdiction to resolve other disputes. In any event, non-Indians should consider this issue before entering into any agreement with tribal members or a tribal nation or doing business on trust or reservation lands; that is because consensual commercial relations with tribes or tribal members may provide tribal courts with regulatory or adjudicatory jurisdiction, or both, over non-Indians and non-Indian business, as set forth in the Supreme Court’s decision in Montana v. United States, 450 U.S. 544, 565 (1981), and its progeny.

My firm’s practice includes a group of attorneys who advise and represent primarily non-Indians doing business with tribal nations or on tribal land. Our experience is primarily before the courts and agencies of the Navajo Nation, specifically the Navajo district courts (trial courts), the Navajo Supreme Court (the only level of appellate review), and the Navajo Nation Labor Commission, an administrative body that hears claims related to the Navajo Preference in Employment Act, 15 Navajo Nation Code § 601 et seq. This article describes my firm’s experience, as non-Indians, representing non-Indians in tribal courts, which I hope may be of interest to non-Indians who consider voluntarily appearing before tribal courts or who are entering into commercial relationships that may subject them to tribal court jurisdiction, so they can understand both what to expect in tribal court and how to be successful once there.

Experience in Navajo Courts and Agencies

I have appeared before the Navajo Supreme Court seven times, in Navajo district courts dozens of times, and in the Navajo Labor Commission at least a dozen times, including six trials (called evidentiary hearings). I believe our clients have received fair and reasonable treatment in Navajo courts, as do the others at my firm. More important, so far as we are aware, our clients have the same opinion. Part of the reason for this, I believe, is that we try to help our clients understand Navajo courts and Navajo law and the differences and similarities between litigation in Navajo courts and litigation in state and federal courts.

The Navajo judiciary and Navajo law, both statutes and case law, are often referred to as one of the most developed and sophisticated tribal court systems in the United States. I have no reason to doubt that, though I have considerably less experience in the courts of other tribal nations. Still, despite its sophistication, there are characteristics of the system that could seem to differ from those of non-Indian courts. For instance, Navajo district court judges do not have to hold a law degree, and most do not. But that is not really any different than state justices of the peace or many municipal judges in courts of limited jurisdiction. Navajo judges seem to be primarily concerned with and apply fairness and common sense, rather than considering applicable law such as preemption, securities, or complex business law. That is also true of many state court judges. The “take home” message may be that agreeing to tribal court jurisdiction for some, but not all, matters may be warranted. Navajo district courts are competent to oversee routine contract, commercial, and personal injury cases. The Navajo Labor Commission is fully competent to preside over employment cases under the Navajo Preference in Employment Act.

Moreover, at times there seem to be advantages to appearing in tribal courts, or at least Navajo courts. Navajo judges and the commissioners of the Navajo Labor Commission are Navajo tribal members. Their lifelong experience with Navajo traditions and customs makes them less susceptible to baseless or exaggerated claims made by some Navajo plaintiffs—some, but certainly not all, that is, and it bears stating that some non-Indian plaintiffs make baseless or exaggerated claims. Or perhaps non-Navajo fact finders would be more willing to credit a Native American’s testimony about mistreatment at the hands of non-Indians. Perhaps there is even, at times, paternalism shown for the Indian litigant in non-Indian forums. Whatever the case, we believe that a tribal court can be a better and fairer forum.

For instance, a non-Indian employer fired a Navajo employee who was also a medicine man. The former employee alleged he was fired because he was a medicine man and the client learned of his religious practices. In other words, his firing was alleged to be religious discrimination. The employer argued the medicine man was fired because of undisclosed conflicts of interest and failure to perform certain duties. Both the Navajo Labor Commission and the Navajo Supreme Court agreed with the employer and in fact determined that the employer had policies supporting Navajo custom and tradition in the workplace. Perhaps a non-Indian judge in a state or federal court would have reached the same conclusion. But what basis would a non-Indian judge have to reach this conclusion? Would a non-Indian judge be more hesitant to reach such a decision?

Despite the overall fairness of the Navajo judiciary, consideration about whether to proceed in tribal court is still warranted because there are differences between Navajo and New Mexico law and courts. Examples of differences between Navajo and New Mexico tort law include the following: It is not clear that workers’ compensation is a bar to a tort claim brought by an employee in Navajo court. Until recently, employers had the burden of proof in employment cases before the Navajo Labor Commission. The Navajo test to differentiate between an employee and an independent contractor is similar to the New Mexico test, but it emphasizes the employee’s understanding and expectation, making the test much more subjective and therefore much less susceptible to summary judgment. It is not clear that federal laws preempting state tort claims in areas such as railroad accidents, labor relations, and medical devices also preempt tribal tort claims. (And we consider it unlikely a Navajo court would so rule, at least in the absence of legislative direction.)

On the other hand, there is some limited authority for the proposition that punitive damages may not be awarded in Navajo courts because they are inconsistent with Navajo custom and tradition. Traditional Navajo justice emphasizes compensation with the purpose of restoring balance and harmony between the parties, after all sides are completely heard on the issue. Punitive damages, by taking more from the wrongdoer than is necessary to compensate, do not restore balance and run the risk of continuing disharmony and bad feelings. Perhaps in part for this reason, there is considerable opinion that Navajo fact finders, whether judge, jury, or commissioners, are more parsimonious in awarding compensatory damages.

Lessons from One Navajo Case

In part because the U.S. Constitution does not apply to tribal nations, the Navajo Council has adopted a Navajo Bill of Rights. While many portions of the Navajo Bill of Rights would be familiar to American lawyers, two differences stand out here. First, while there is a clause barring the establishment of religion, the Navajo Supreme Court has stated this does not provide for the separation of the church and state or, perhaps better stated, religion and public policy. The Navajo Supreme Court has stated that Navajo culture and tradition, or perhaps Navajo religion, is not separable from unwritten Navajo law, which the Navajo Supreme Court will apply. (Some Navajos believe that there is no such thing as “Navajo religion,” only a Navajo life way or path. I use the term to covey the basic idea and take no position on the issue.) Second, the Navajo Bill of Rights provides that “Navajo or Indian preference in employment and business contracting . . . shall not be abridged.” 1 Navajo Nation Code § 2. These authorities and Navajo tradition (called Diné Fundamental Law) resulted in the Navajo Supreme Court’s opinion in Thinn v. Navajo Generating Station, Nos. SC-CV-25-06, SC-CV-26-06 (Oct. 19, 2007). The Thinn case presents three very interesting, and possibly political, holdings by the Navajo Supreme Court.

In 1969, the Navajo Nation entered a lease for the construction of a power plant within the reservation on land held in trust by the United States for the Navajo Nation near Page, Arizona. In the lease, the Navajo Nation agreed that it would not “directly or indirectly regulate or attempt to regulate . . . the construction, maintenance or operation” of the plant. Sometime around 2005, the plant fired two Navajo employees. Each sued the plant under the Navajo Preference in Employment Act, which was enacted in 1985. The act requires “just cause” to fire an employee, and each employee claimed the plant lacked just cause for termination.

The Navajo Supreme Court first explained how it had jurisdiction over the plant, a “non-Indian entity.” Citing precedent, the court stated that under the Treaty of 1868, the Navajo Nation can “regulate non-Indian activity on trust lands”; therefore, the court need not apply the federal test for tribal jurisdiction over non-Indians in Montana v. United States. (“Trust land” generally is land held in trust by the United States for the beneficial use of a tribal nation or tribal members. When conduct by a non-Indian occurs on trust land, there will more likely be tribal court jurisdiction over the non-Indian.) Setting aside considerable detail, that holding conflicts with federal law for two reasons. First, the treaty provision on which the Navajo Supreme Court relied is identical to a treaty provision at issue in Montana, allowing the tribal nation to exclude non-Indians from the reservation. Because Montana created the presumption that tribal nations presumptively lack jurisdiction over non-Indians, the treaty power to exclude, without more, cannot be the basis for jurisdiction.

In Montana, the U.S. Supreme Court held that the Crow Nation lacked jurisdiction over non-Indians on fee land. (“Fee land” refers to land that is not held in trust by the United States for a tribal nation or one or more Indians. Conduct by a non-Indian on fee land is less likely to confer tribal court jurisdiction.) In subsequent cases, the Supreme Court has strongly indicated that such land leased to a non-Indian is not considered trust land, but rather fee land, for purposes of the Montana test. Finally, the ruling in Montana that tribal nations have limited authority to regulate hunting and fishing on trust land does not stand for the proposition, in light of several subsequent cases, that tribal nations may regulate employment simply because an employer has leased trust land. The takeaway is that tribal courts can and will depart from federal law regarding jurisdiction. While federal courts can independently review a tribal court’s assessment of its civil jurisdiction over non-Indians, usually the tribal court has the first word on the issue, and federal courts will defer to tribal court factual findings but apply the law de novo.

Thinn’s second interesting aspect is its holding on a related separation-of-powers issue. The Navajo Supreme Court held that the Navajo Council and its chairman did not, and could not, waive the right to regulate employment within the borders of the Navajo Nation. Although the council delegated its authority to a committee, which recommended approving the lease, and the chairman then executed the lease, those acts could not waive the right to regulate employment. Given the long span of time between when the lease was executed, 1969, and when the Navajo Nation first regulated employment by statute, 1985, the court had to find a basis for limiting the power of the legislature. It did so in Diné Fundamental Law: “Under Fundamental Law, the leaders do not ever lay down [the trust of the people to protect employment relationships] and the laws because a leader is taught that they must find the solution, for it is always available.” We have not found this reasoning persuasive. Also, it is based on unwritten Navajo tradition and custom, which non-Indians cannot realistically be expected to know or anticipate. Most important, it gives non-Indians pause when relying on the agreement of the legislative body of the Navajo Nation. Certainly courts in any jurisdiction may reach unexpected results, but limiting the power of another branch of government, based on unwritten tradition, may be a unique risk. (Some tribal nations—in New Mexico, Pueblos in particular—do not apply custom and tradition to non-Indians, by statute or court decision.)

The third important aspect of Thinn requires some background. Another power plant had a lease with the Navajo Nation that included the same agreement, that the Nation would not “directly or indirectly regulate or attempt to regulate the Company or the construction, maintenance or operation of the power plant.” Ariz. Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1130 (9th Cir. 1995). The Ninth Circuit held that the Navajo Nation had waived the right to regulate employment. Id. at 1135. In Thinn, the Navajo Supreme Court stated that its determination of Navajo law was binding on federal courts, in part because in Aspaas the Ninth Circuit stated that the Navajo Council had the authority to waive the power to regulate employment.

Federal (and state) courts do not have the authority to review the merits of a tribal court determination. However, federal courts will consider whether to enforce tribal court judgments, and that determination includes considering whether the parties received due process, whether the tribal court had jurisdiction, and whether the tribal officials are acting contrary to law. After the Navajo Supreme Court decided Thinn, the power plant sought declaratory and injunctive relief against Navajo officials for actions contrary to federal law, just as federal courts can enjoin state officials who act contrary to federal law under Ex parte Young. The U.S. District Court for the District of Arizona determined that Navajo officials acted contrary to the lease, and thus federal law, in attempting to regulate employment at the power plant, and the court issued a permanent injunction barring them from doing so. Salt River Agric. Improvement & Power Dist. v. Lee, 2013 U.S. Dist. LEXIS 10952 (D. Ariz. 2013). Whether a tribal nation has jurisdiction over non-Indians is a federal question; therefore, if a tribal official is asserting, over non-Indians, authority that the official lacks, that is considered a violation of federal law for purposes of a federal court determining the issue and issuing injunctive relief.

It is laudable, or at least understandable, that the Navajo Supreme Court seeks to uphold the authority, institutions, and traditions of the Navajo Nation. But that may also be seen as accruing power, which is something courts and governments, Indian and non-Indian, tend to do. The Thinn case indicates some of the risks present in doing business with tribal nations or on trust land, and in appearing in tribal court. A case may become a protracted dispute that appears political rather than legal. Of course, this is a risk in state and federal court as well. However, our experience is that routine issues, such as contracts, choice of law and forum, and employment, which are largely insulated from political factors in state and federal court, can become heavily politicized in tribal courts.

These risks are of a higher magnitude than the more routine differences between tribal courts and non-Indian courts. Businesses should consider the risks before agreeing to appear in tribal court or doing business in a way that may create tribal jurisdiction. Nevertheless, our experience is that doing business on tribal land or with tribal nations can be very successful, and agreeing to tribal jurisdiction is often a condition of such business. Here are some recommendations about how to approach appearing in tribal court.


When you appear in tribal court, you will likely believe you have a “clean slate” with the tribal nation. Our experience is that the tribal nation and members will see it otherwise. As you likely know, most tribal nations have a painful history. The United States and its citizens have at times mistreated tribes and Indians. Thus, many tribal members will view your appearance in court with caution or even suspicion.

Litigation in tribal forums is different in other ways. Lawyers, parties, and fact finders are very likely to know one another. The pace of proceedings is generally faster (with regard to going to trial and the absence of motion practice and discovery) and slower (with regard to actual proceedings). Generally, non-Indians in tribal court benefit from patience and listening. An example illustrates.

A school district operating on and off the Navajo Reservation was surprised to receive a protective order barring one of its supervisors from interacting with one of his direct reports. Such an order was within the letter of the Navajo Domestic Abuse Protective Act. 9 Navajo Nation Code § 1601 et seq. However, the act places a heavy burden on the petitioner, and, functionally, the act is not supposed to apply to employers. Our firm appeared for the school district, and although we were able to state our case, we primarily waited as the judge, a Navajo woman, questioned the petitioner, also a Navajo woman, who was older than the judge and related to the judge by clan (which was determined in Navajo and explained to us in English). We believe the duration of the conversation between the judge and petitioner, much of it in Navajo, was grounded in Navajo tradition: first, allowing the petitioner to say all she wished to say; second, showing respectful deference to an elder clan relative; and, third, permitting open-ended and indirect questions, which is more consistent with how younger people interact with older people. The court ruled in the school district’s favor. To a non-Indian present for this proceeding, the key to success was likely patience and trust as the discussion occurred, particularly waiting for the judge to explain (rather than translate) the conversation. In addition to the need for patience and a slower pace, two takeaways from this experience are (1) your witnesses may be hesitant to testify before elders or superiors, and (2) you may be perceived as aggressive simply for questioning a witness who is older or in a position of regard.

Tribal statutes and rules are often a confusing accumulation of both traditional law and Anglo or European law. Typically, across time different legislative bodies enact inconsistent, even contradictory laws, due to internal politics, the stance of the tribal nation to the “outside” world at various times, and advice given to tribal nations by “outside allies.” For instance, the Navajo choice-of-law statute provides that Navajo statutes will first be applied, informed by Diné Fundamental Law, and followed by federal and then state law. 7 Navajo Nation Code § 204 (adopted in 1959, last amended in 2003). However, judges are hesitant to apply state law because the Navajo Reservation lies within Utah, Arizona, and New Mexico, and these states’ laws occasionally differ from one another, which could lead to the application of inconsistent law in different areas of the Navajo Nation. Also, a later act adopted in 2010 provides that Diné Fundamental Law is the fundamental and immutable law of the Navajo Nation (at least, that is how the Navajo Supreme Court characterizes the act). The act sets forth very broad principles, which could be applied contrary to more specific statutes. 1 Navajo Nation Code § 200 et seq. As a result, it may be difficult to predict what law will be applied.

There are expertise and language issues you may encounter in tribal forums. For instance, you may need an expert to explain how your conduct is consistent with traditional law or Navajo statutory law, and your witnesses may testify in the tribal language. One example may illustrate the point. The Navajo Nation has an Ethics in Government Law. 2 Navajo Nation Code § 3741 et seq. One provision bars a former Navajo official or employee from appearing before or interacting with an agency of the Navajo government for at least two years after leaving employment or office. 2 Navajo Nation Code § 3751(B). A company declined to hire a former Navajo official because the job for which he applied required interacting with Navajo agencies. He sued. We hired a Navajo medicine man as an expert witness. In a proceeding before the Navajo Labor Commission, one of the commissioners asked our expert his advice on the Ethics in Governance Law. The expert provided a lengthy explanation in Navajo, lasting perhaps 15 minutes, during which the expert said to me, essentially, “Hang tight. I’ll let you know what I’m telling them later.” After the hearing, the expert gave me a summary of his testimony along these lines:

I told them that when a medicine man performs a ceremony, he takes on negative energy and becomes fatigued. The medicine man has to rest and recover and allow the negative energy to move on before performing another ceremony. It is similar for a government official leaving office. He has taken on energy and should allow time for balance to be restored before reappearing before the government.

We won, and it was a good argument, but I was sure of neither until after the fact.

We enjoy representing clients in tribal courts and assessing tribal law issues. It is challenging and interesting work in many ways. I hope this article expresses our respect for, and criticism of, these important and sovereign institutions.

Brian K. Nichols

The author is with Modrall Sperling in Albuquerque.