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Window Rock Unified School District v. Reeves

United States Court of Appeals, Ninth Circuit

June 28, 2017

Window Rock Unified School District; Pinon Unified School District, Plaintiffs-Appellees,
v.
Ann Reeves; Kevin Reeves; Loretta Brutz; Mae Y. John; Clarissa Hale; Michael Coonsis; Barbara Beall, Defendants, and Richie Nez; Casey Watchman; Ben Smith; Woody Lee; Jerry Bodie; Evelyn Meadows; Unknown Parties, named as John and Jane Does I-V (Current or former members of the Navajo Nation Labor Counsel), Defendants-Appellants. Window Rock Unified School District; Pinon Unified School District, Plaintiffs-Appellees,
v.
Ann Reeves; Kevin Reeves; Loretta Brutz; Mae Y. John; Clarissa Hale; Michael Coonsis; Barbara Beall, Defendants-Appellants, and Richie Nez; Casey Watchman; Ben Smith; Woody Lee; Jerry Bodie; Evelyn Meadows; Unknown Parties, named as John and Jane Does I-V (Current or former members of the Navajo Nation Labor Counsel), Defendants.

          Argued and Submitted September 17, 2015

          Submission Vacated January 5, 2016

          Resubmitted June 28, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Arizona, D.C. No. 3:12-cv-08059-PGR Paul G. Rosenblatt, Senior District Judge, Presiding

          Paul Spruhan (argued), Navajo Nation Department of Justice, Window Rock, Arizona, for Defendants-Appellants Richie Nez, Casey Watchman, Ben Smith, Woody Lee, Jerry Bodie, and Evelyn Meadows.

          David R. Jordan, Law Offices of David R. Jordan P.C., Gallup, New Mexico, for Defendants-Appellants Ann Reeves, Kevin Reeves, Loretta Brutz, Mae Y. John, Clarissa Hale, Michael Coonsis, and Barbara Beall.

          Eileen Dennis GilBride (argued) and Georgia A. Staton, Jones Skelton & Hochuli P.L.C., Phoenix, Arizona; Patrice M. Horstman, Hufford Horstman Mongini Parnell & Tucker P.C., Flagstaff, Arizona; for Plaintiffs-Appellees.

          Josephine Foo, Office of the Chief Justice, Judicial Branch of the Navajo Nation, Window Rock, Arizona, for Amicus Curiae Navajo Nation Supreme Court.

          Before: Consuelo M. Callahan, Morgan Christen, and Michelle T. Friedland, Circuit Judges.

         SUMMARY[*]

         Tribal Jurisdiction

         The panel reversed the district court's decision enjoining tribal forum proceedings on employment-related claims against two Arizona public school districts operating schools on leased tribal land.

         The panel held that it was "colorable or plausible" that the tribal adjudicative forum, the Navajo Nation Labor Commission, had jurisdiction because the claims arose from conduct on tribal land over which the Navajo Nation had the right to exclude nonmembers, and the claims implicated no state criminal law enforcement interests. Well-established exhaustion principles therefore required that the tribal forum have the first opportunity to evaluate its own jurisdiction, including the nature of the state and tribal interests involved.

         The panel reaffirmed that there exist two distinct frameworks for determining whether a tribe has jurisdiction over a case involving a non-tribal-member defendant: (1) the right to exclude, which generally applies to nonmember conduct on tribal land; and (2) the exceptions articulated in Montana v. United States, 450 U.S. 544 (1981), which generally apply to nonmember conduct on non-tribal land. The panel held that Nevada v. Hicks, 533 U.S. 353 (2001) (addressing concerns related to enabling state officers to enforce state criminal laws for crimes that occurred off the reservation), did not eliminate the right-to-exclude framework, such that jurisdiction over a nonmember exists only if a Montana exception applies, regardless of whether the relevant conduct occurred on tribal or non-tribal land. The panel held that the court's caselaw left open the question of what state interests might be sufficient to preclude tribal jurisdiction over disputes arising on tribal land; therefore, tribal jurisdiction was plausible enough that exhaustion was required.

         The panel reversed the district court's summary judgment in favor of the plaintiff school districts and remanded with instructions to dissolve the injunction and dismiss the case for failure to exhaust.

         Dissenting, Judge Christen wrote that the majority's opinion created a split with the Seventh, Eighth, and Tenth Circuits. She wrote that tribal jurisdiction was neither colorable nor plausible because Montana and the Supreme Court authority that followed it make clear that the inherent sovereign powers of Indian tribes generally do not extend to the activities of nonmembers. Judge Christen wrote that she disagreed with the majority's holding that unless a state is seeking to enforce its criminal laws, Montana does not apply to nonmember conduct on tribal land even in the presence of clear competing state interests. In addition, the majority gave short shrift to the school districts' obligation to operate public schools within the Navajo Reservation's boundaries.

          OPINION

          FRIEDLAND, Circuit Judge.

         This appeal requires us to decide whether it is "colorable or plausible" that a tribal adjudicative forum has jurisdiction over employment-related claims against two public school districts operating schools on leased tribal land. Because the claims arise from conduct on tribal land and implicate no state criminal law enforcement interests, we conclude that tribal jurisdiction is colorable or plausible under our court's interpretation of Nevada v. Hicks, 533 U.S. 353 (2001). Well-established exhaustion principles therefore require that the tribal forum have the first opportunity to evaluate its own jurisdiction over this case, including the nature of the state and tribal interests involved. We thus reverse the district court's decision enjoining tribal forum proceedings.

         I.

         The question of tribal jurisdiction arose when a group of current and former employees (the "Employees") of two Arizona public school districts, Window Rock Unified School District and Pinon Unified School District (the "Districts"), filed complaints with the Navajo Nation Labor Commission (the "Commission").

         The Districts both operate schools on land leased from the Navajo Nation (the "Nation"). Window Rock's lease requires the school district to abide by Navajo laws, to the extent that they do not conflict with Arizona or federal law, and it further provides that the agreement to abide by Navajo laws does not forfeit any rights under state or federal laws. Pinon's lease with the Nation does not mention Navajo law.

         In their complaints before the Commission, some of the Employees alleged that the Districts owed them merit pay under Arizona law and others alleged that the Districts had violated their rights under the Navajo Preference in Employment Act.[1] The Commission eventually consolidated all of the Employees' complaints.

         The Districts moved to dismiss the complaints on the ground that the Commission lacked jurisdiction over personnel decisions made by Arizona public school districts. Following a motion hearing, the Commission ordered additional discovery on the relationship between the Nation and the Districts.

         Before the Commission could hold an evidentiary hearing on the additional discovery, the Districts filed suit in federal district court seeking a declaration that "the [Commission] and the Navajo tribal courts lack jurisdiction over public school districts' employment decisions and practices conducted on the Navajo Reservation." The Districts also sought an injunction "to bar further prosecution of those claims in the tribal courts due to the lack of jurisdiction." The Commission, joined by the Employees, moved to dismiss for failure to exhaust tribal remedies. The Districts countered with a motion for summary judgment, asserting that tribal jurisdiction was so plainly lacking that the Districts did not need to exhaust tribal remedies. The Commission responded that summary judgment was unwarranted, particularly in the absence of fact-finding by the Commission. The Employees similarly argued that summary judgment was improper, and they also filed a Rule 56(f) motion to stay summary judgment proceedings to allow discovery.

         The district court held that tribal jurisdiction was so plainly lacking that exhaustion in the tribal forum was not required. Accordingly, it denied the Commission and Employees' motion to dismiss and the Employees' motion to stay summary judgment proceedings. It also granted summary judgment to the Districts and enjoined further tribal proceedings. The Commission and Employees timely appealed.

         II.

         "We review questions of tribal court jurisdiction and exhaustion of tribal court remedies de novo and factual findings for clear error." Grand Canyon Skywalk Dev., LLC v. 'Sa' Nyu Wa Inc., 715 F.3d 1196, 1200 (9th Cir. 2013), cert. denied sub nom. Grand Canyon Skywalk Dev., LLC v. Grand Canyon Resort Corp., 134 S.Ct. 825 (2013). The merits of the Employees' complaints were not before the district court, nor are they before us-the only question presented here is whether tribal jurisdiction is so plainly lacking that the district court properly enjoined tribal proceedings.[2]

         III.

         A tribal adjudicative body generally must have the first opportunity to evaluate its jurisdiction over a matter pending before it. In National Farmers Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985), the Supreme Court explained the importance of this exhaustion requirement: "[Congress's] policy of supporting tribal self-government and self-determination . . . favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge." Id. at 856. The Court reasoned that requiring exhaustion of jurisdictional questions in a tribal forum would not only appropriately respect "tribal self-government and self-determination, " but would also serve "the orderly administration of justice in the federal court . . . by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed." Id. Moreover, "[e]xhaustion of tribal court remedies . . . will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review." Id. at 857.[3]

         In light of the importance of exhaustion, federal courts will excuse the failure to exhaust in only four circumstances. See Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir. 2009). The Districts argue that one of these circumstances exists here: "when it is 'plain' that tribal court jurisdiction is lacking, so that the exhaustion requirement 'would serve no purpose other than delay.'" Id. (quoting Nevada v. Hicks, 533 U.S. 353, 369 (2001)). We have explained that the "plainly lacking" exception to the exhaustion requirement does not apply when "jurisdiction is 'colorable' or 'plausible.'" Id. at 848 (quoting Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir. 2008)). We must therefore decide whether tribal jurisdiction in this case is colorable or plausible.

         IV.

         Our caselaw has long recognized two distinct frameworks for determining whether a tribe has jurisdiction over a case involving a non-tribal-member defendant: (1) the right to exclude, which generally applies to nonmember conduct on tribal land; and (2) the exceptions articulated in Montana v. United States, 450 U.S. 544 (1981), which generally apply to nonmember conduct on non-tribal land. The Commission and Employees argue that tribal jurisdiction is colorable in this case under either framework. The Districts respond that Nevada v. Hicks, 533 U.S. 353 (2001), eliminated the first framework such that jurisdiction over a nonmember exists only if a Montana exception applies, regardless of whether the relevant conduct occurred on tribal or non-tribal land.

         We have repeatedly rejected the Districts' reading of Hicks, and today we reaffirm that the right-to-exclude framework continues to exist. Our court has read Hicks as creating only a narrow exception to the general rule that, absent contrary provisions in treaties or federal statutes, tribes retain adjudicative authority over nonmember conduct on tribal land-land over which the tribe has the right to exclude. We have held that Hicks applies "only when the specific concerns at issue in that case exist." Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 813 (9th Cir. 2011). The specific concerns at issue in Hicks related to enabling state officers to enforce state criminal laws for crimes that occurred off the reservation. 533 U.S. at 358 n.2. Because Arizona's interest in the enforcement of state criminal laws is not implicated here, we reject the Districts' argument that any state interest in this case plainly defeats jurisdiction under Hicks.[4] Contrary to the dissent's arguments, however, this is not to say that state interests beyond those in criminal law enforcement could never trigger application of Hicks. Rather, we hold only that because our caselaw leaves open the question of what state interests might be sufficient to preclude tribal jurisdiction over disputes arising on tribal land, tribal jurisdiction is plausible enough here that exhaustion is required.

         A.

         To understand what Hicks did and did not do, it is important to situate that case in the context of other Supreme Court precedent.

         1.

         We begin with the general principle that a tribe's right to exclude non-tribal members from its land imparts regulatory and adjudicative jurisdiction over conduct on that land.

         The Supreme Court has long recognized that Indian tribes have sovereign powers, including the power to exclude non-tribal members from tribal land. See, e.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333 (1983). A tribe's regulatory authority derives from these sovereign powers. As the Supreme Court has explained:

This power [to exclude] necessarily includes the lesser power to place conditions on entry, on continued presence, or on reservation conduct, such as a tax on business activities conducted on the reservation. When a tribe grants a non-Indian the right to be on Indian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry. However, it does not follow that the lawful property right to be on Indian land also immunizes the non-Indian from the tribe's exercise of its lesser-included power to tax or to place other conditions on the non-Indian's conduct or continued presence on the reservation.

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144-45 (1982).

         In Strate v. A-1 Contractors, 520 U.S. 438 (1997), the Supreme Court tied the scope of adjudicative jurisdiction to regulatory jurisdiction by holding that "[a]s to nonmembers, . . . a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction."[5] Id. at 453. This suggested that, because tribes generally maintain the power to exclude and thus to regulate nonmembers on tribal land, tribes generally also retain adjudicative jurisdiction over nonmember conduct on tribal land.

         The federal government may, however, limit a tribe's power either by treaty or by statute. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987). In interpreting the extent of any such limits, courts do not "lightly assume that Congress . . . intend[ed] to undermine Indian self-government." Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024, 2032 (2014). Thus, "[c]ivil jurisdiction over . . . activities [of non-Indians on tribal land] presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute." Iowa Mut. Ins. Co., 480 U.S. at 18. On the other hand, criminal jurisdiction over non-Indians for offenses committed on tribal land does not presumptively lie in the tribal courts. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 206-08 (1978).[6]The Supreme Court has made clear that this distinction rests largely on the difference between Congress's traditional approach to tribal criminal jurisdiction, which Congress has historically limited, and its approach to tribal civil jurisdiction, which it has not so limited. See Nat'l Farmers, 471 U.S. at 854-55.

         Supreme Court precedent prior to Hicks thus indicated that tribes generally have civil but not criminal adjudicative jurisdiction over nonmember conduct on tribal land.

         2.

         By contrast, the Supreme Court has held that a tribe does not possess any inherent sovereign right to regulate nonmembers on non-tribal land, even if the land falls within the boundaries of a reservation. For nonmember conduct on non-tribal land, therefore, the Supreme Court has applied a different framework for analyzing the scope of tribal adjudicative authority.

         In Montana v. United States, 450 U.S. 544 (1981), the Court held that the Crow Tribe did not have the sovereign right to regulate nonmember fishing and hunting on land that was within the boundaries of the Crow Reservation but was owned by nonmembers (commonly referred to as "non-Indian fee land" or "fee land"). See id. at 563-67. The Court then set forth two exceptions to this general rule. First, "[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." Id. at 565. Second, "[a] tribe may . . . retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id. at 566.

         The Court analyzed both exceptions and found that neither was satisfied on the facts presented. See id. at 566. Thus, the Tribe did not have the right to regulate nonmember fishing or hunting on fee land. Instead, the Tribe could prohibit or regulate fishing or hunting by nonmembers only on tribal land within the reservation, "land on which the Tribe exercises 'absolute and undisturbed use and occupation.'"[7] Id. at 559 (quoting Second Treaty of Fort Laramie, Crow Indians-U.S., May 7, 1868, 15 Stat. 649, 650).

         As the Supreme Court has summarized, then, "tribes retain considerable control over nonmember conduct on tribal land." Strate, 520 U.S. at 454 (emphasis added). "[W]ith respect to non-Indian fee lands, " however, "[s]ubject to controlling provisions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts . . . generally 'does not extend to the activities of nonmembers of the tribe.'"[8] Id. at 453 (alteration omitted) (emphasis added) (quoting Montana, 450 U.S. at 565).

         B.

         In Hicks, the Supreme Court modified this general framework to what our court has understood to be a limited extent.

         The jurisdictional question in Hicks arose after state game wardens executed a search warrant on tribal land at the home of a tribal member suspected of committing a crime outside the reservation. See Hicks, 533 U.S. at 356. The suspect alleged that his property was damaged during the search and asserted civil rights claims against the state game wardens in tribal court. See id. at 356-57.

         To resolve whether the tribal court had jurisdiction, the Supreme Court examined "the principle that Indians have the right to make their own laws and be governed by them[, which] requires 'an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.'" Id. at 362 (quoting Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 156 (1980)). The Court explained that "tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations-to the right to make laws and be ruled by them." Id. at 364 (internal quotation marks omitted). The Court reasoned that, by contrast, "[t]he State's interest in execution of process is considerable." Id. Accordingly, the Court concluded that the tribal court lacked jurisdiction, even though the events giving rise to the claim had transpired on tribal land. See id. at 374.

         The Supreme Court recognized in Hicks that its earlier cases suggested that tribal jurisdiction over civil suits depended on land ownership, but the Court stated that "[t]he ownership status of land, . . . is only one factor to consider in determining whether regulation of the activities of nonmembers is 'necessary to protect tribal self-government or to control internal relations.'" Id. at 360 (quoting Montana, 450 U.S. at 564). The Court reaffirmed, however, that the ownership status of land is a "significant" factor, id. at 370, that "may sometimes be . . . dispositive, " id.

         Although the Court further suggested in Hicks that "the general rule of Montana applies to both Indian and non-Indian land, " id. at 360, it also stated in a footnote: "Our holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of ...


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