861 F.3d 894
9th Cir.2017Background
- Seven current/former employees of two Arizona public school districts (Window Rock and Pinon) filed employment claims in the Navajo Nation Labor Commission alleging state-law merit-pay claims and violations of the Navajo Preference in Employment Act; most claimants are Navajo members.
- Both districts operate schools on land leased from the Navajo Nation; Window Rock’s lease references compliance with Navajo law, Pinon’s lease is silent.
- The Navajo Commission consolidated the complaints, ordered discovery, and the districts then sued in federal court seeking a declaratory judgment and injunction that tribal courts lack jurisdiction.
- The district court granted summary judgment for the school districts, enjoining tribal proceedings as plainly lacking jurisdiction; the Commission and employees appealed.
- The Ninth Circuit majority reversed, holding tribal jurisdiction over nonmember defendants is at least colorable/plausible where the conduct occurred on tribal land and state criminal‑law enforcement interests (the Hicks concern) are not implicated; exhaustion of tribal remedies is therefore required.
Issues
| Issue | Plaintiff's Argument (Commission/Employees) | Defendant's Argument (Districts) | Held |
|---|---|---|---|
| Whether tribal adjudicative jurisdiction over employment claims against Arizona school districts operating on leased tribal land is colorable/plausible | Tribal jurisdiction is colorable because the conduct occurred on tribal land where Navajo retains right to exclude; leases do not clearly waive tribal jurisdiction | Tribal jurisdiction plainly lacks because Montana/Hicks bar tribal jurisdiction over nonmembers exercising state functions; exhaustion would be futile | Reversed district court: tribal jurisdiction is at least colorable/plausible; exhaustion required |
| Whether Nevada v. Hicks eliminated the right‑to‑exclude framework for nonmember conduct on tribal land | Hicks is a narrow exception limited to state officers enforcing state criminal laws; it does not categorically eliminate right‑to‑exclude jurisdiction on tribal land | Hicks applies broadly; Montana framework governs regardless of land status, so tribal jurisdiction is generally precluded | Court reaffirms Ninth Circuit precedent: Hicks is narrow; right‑to‑exclude framework survives and applies where Hicks’s specific concerns (state criminal enforcement) are absent |
| Whether the Enabling Act, treaty provisions, or school leases divest the Navajo Nation of exclusion/tribal jurisdiction over state school districts | Treaty and leases leave room for tribal authority; Enabling Act does not clearly and plainly abrogate tribal exclusion rights | Enabling Act & related statutes (and consent to compulsory‑attendance enforcement) demonstrate that Arizona’s interest in providing public education limits tribal exclusion/authority | Court finds ambiguity in treaties/statutes/leases; not sufficiently clear to render tribal jurisdiction plainly lacking |
| Whether federal courts may enjoin tribal proceedings without tribal‑court exhaustion when jurisdiction is not colorable | The Commission: exhaustion preserves tribal self‑government and allows tribal court to decide its jurisdiction first | Districts: exhaustion excused because tribal jurisdiction is plainly lacking; federal relief appropriate | Where jurisdiction is colorable/plausible, exhaustion doctrine requires tribal forum first; injunction improper |
Key Cases Cited
- Nevada v. Hicks, 533 U.S. 353 (2001) (held tribal courts lacked jurisdiction over state officers enforcing state law; limited Hicks to that context)
- National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) (established prudential exhaustion doctrine requiring tribal courts first opportunity to decide jurisdictional questions)
- Montana v. United States, 450 U.S. 544 (1981) (announced general rule that tribes lack authority over nonmembers, with two exceptions)
- Strate v. A-1 Contractors, 520 U.S. 438 (1997) (held adjudicative jurisdiction over nonmembers does not exceed legislative jurisdiction; applied Montana framework)
- Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (tribal power to exclude supports lesser powers to regulate conduct on tribal land)
- Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008) (reaffirmed limits on tribal authority over nonmembers; Montana exceptions narrowly applied)
- Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011) (Ninth Circuit: Hicks narrow; right‑to‑exclude supports tribal jurisdiction over nonmember conduct on tribal land where no competing state interests exist)
- Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196 (9th Cir. 2013) (Ninth Circuit required tribal‑court exhaustion for dispute over development on tribal land; lack of obvious state interests supported jurisdiction plausibility)
- McDonald v. Means, 309 F.3d 530 (9th Cir. 2002) (applied right‑to‑exclude/adjudicative‑jurisdiction on tribal roads; treated Hicks as limited)
- Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842 (9th Cir. 2009) (recited narrow circumstances when exhaustion may be excused; colorable/plausible jurisdiction defeats the “plainly lacking” exception)