A Navajo Nation courthouse in Window Rock, Arizona. Photo from Navajo Nation Courts

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Supreme Court puts an end to another tribal jurisdiction dispute

Tuesday, June 28, 2016

Call it the case that Indian Country forgot. Amid all the flurry over Dollar General Corporation v. Mississippi Band of Choctaw Indians, another tribal jurisdiction dispute was awaiting attention at the U.S. Supreme Court.

But just like their anti-climactic tie in Dollar General, the justices ended Jensen v. EXC with little fanfare. An order list issued on Tuesday informed two families from the Navajo Nation that their petition was "denied" -- no explanation was offered.

But the families -- who are seeking justice for a fatal accident that occurred on the reservation more than a decade ago -- perhaps deserved more. After filing their petition nearly a year ago, they waited and waited and waited for the nation's highest court to let them know whether their case would be accepted during a historic term that saw four Indian law disputes on the docket.

A concrete answer, though, never came. Without explanation, the court put the petition on hold for eight months even though briefing was completed back in October.

Speculation in Indian law circles was that the court was going to take action after resolving Dollar General. Both cases arose out of lawsuits filed in tribal courts against non-Indian entities, an issue of national significance.

After oral arguments in Dollar General last December, it certainly looked like the court was well on its way to issuing a decision in a timely manner. Then the Navajo families might at least know whether they can sue for a head-on collision that took the life of Butch Johnson and caused injuries to his wife, Jamien Rae Jensen, who later miscarried their unborn child. The couple's other child also was injured.

Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in EXC Inc. v. Jamien Jensen November 21, 2014

But everything changed after the passing of Antonin Scalia in February. The court kept Dollar General, and the Jensen case, on extended hold as the remaining justices struggled to reach a majority that never came.

After 199 days, the court finally issued a one-sentence per curiam decision in Dollar General last Thursday. While the action represents a victory for the Mississippi Band of Choctaw Indians, it did not set a national precedent and it did not resolve any legal issues that could have benefited the two Navajo families in their attempt to hold a tour bus company liable for the September 2004 accident on the Arizona portion of the reservation.

As a result, an unpublished decision from the 9th Circuit Court of Appeals in the Jensen case will stand. A three-judge panel concluded that the Navajo Nation lacked jurisdiction over EXC, a non-Indian entity doing business as Express Charters, because the company did not enter into a "consensual relationship" with the tribe.

Even though the company voluntarily took tourists around the reservation and visited sites operated by the tribal government, the 9th Circuit wrote that EXC was never given "sufficient notice" that it might be subjected to tribal jurisdiction. The court also said the company's conduct did not threaten the "health or welfare" of the tribe even though two lives were lost as a result of the accident.

Incidentally, Dollar General raised a similar argument regarding notice as it fought the Mississippi Band's jurisdiction. The 5th Circuit Court of Appeals had ruled that the company, which reported $18.9 billion in net sales in 2014, entered into a "consensual relationship" with the tribe when it agreed to operate a store on trust land on the reservation.

The Navajo Nation Supreme Court held oral arguments in the dispute at Stanford Law School in April 2010. From left: associate justice Louise G. Grant; chief justice Herb Yazzie and associate justice Eleanor Shirley. Grant and Yazzie are no longer with the court. Photo by L.A. Cicero / Stanford News Service

In its opening brief to the Supreme Court, the company wrote that "nonmembers must be provided clear notice of what activities will subject them to tribal authority and what the governing law requires of them."

The 5th Circuit's decision will stand as a result of the Supreme Court's deadlock but the outcome will not necessarily help tribes and tribal plaintiffs in other parts of the country.

The Jensen case was significant enough that the Navajo Nation Supreme Court held oral arguments at Standard Law School in California in April 2010. The tribe's judicial system is the largest of its kind in Indian Country and the reservation is the largest in the United States.

"Our courts, which are American courts, strive to be fair to all. Jurisdiction of our courts is the civil authority of one governmental system among a diverse many in the United States, readily understood by those engaging with the Navajo People within our borders," the three Navajo jsutices wrote four months later as they explained why they would not let EXC off the hook.

In spite of the promises of fairness, the company went to federal court to fight the tribe's jurisdiction and secured a decision blocking further consideration of the Jensen lawsuit. The families appealed but the 9th Circuit affirmed the decision in December 2014.

9th Circuit Court of Appeals Decision:
EXC Incorporated v. Jensen (December 23, 2014)

Navajo Nation Supreme Court Decision:
EXC, Inc. v. Kayenta District Court (September 15, 2010)

U.S. Supreme Court Documents:
Docket Sheet No. 15-64: Jamien Rae Jensen v. EXC Inc | Briefs from the Tribal Supreme Court Project