Public school students in Window Rock, Arizona. Photo: Donovan Shortey [Twitter: dshortey | Facebook: Shortey Studios]

Appeals court ruling opens door for tribal jurisdiction over public schools

The Navajo Nation has the right to determine whether it can exercise jurisdiction over public school districts in Arizona, a divided federal appeals court has ruled.

Tribes, generally, lack authority over non-citizens, according to the U.S. Supreme Court. That's especially the case for activities that occur on lands owned by non-Indians.

But in a 2-1 ruling on Wednesday, the 9th Circuit Court of Appeals said the 1868 Navajo treaty recognizes the tribe's sovereignty over tribally-owned lands. That means the school districts must answer to complaints about their compliance with tribal laws.

"In sum, because the conduct at issue here occurred on tribal land over which the Navajo Nation has the right to exclude nonmembers, and because state criminal law enforcement interests are not present, we hold that tribal jurisdiction is at least colorable or plausible and that exhaustion in the tribal forum is therefore required," Judge Michelle T. Friedland wrote for the majority.

The 26-page decision sets an important precedent because other public school districts have challenged the tribe's authority in recent years. The tribe points out that most schools, when they enter into leases with the tribe, agree to abide by "all laws, regulations, and ordinances" on the reservation.

But in an even longer dissent, Judge Morgan Christen said her colleagues got it wrong. In her 31-page opinion, she said the tribe's jurisdiction was "plainly lacking" and that even the 1868 treaty couldn't save its sovereignty.

"By virtue of its inherent tribal sovereignty, the Navajo Nation also retained other rights necessary to self- government and control of internal relations, but the right to exclude nonmember school districts from the Navajo Reservation is not among them," Christen wrote in the dissent.

Indianz.Com on SoundCloud: 9th Circuit Court of Appeals Oral Arguments in Window Rock USD, et al v. Richie Nez

The disagreement among the judges makes the case ripe for a rehearing among a larger set of judges on the 9th Circuit, something that's happened in similar circumstances in the past. Or the matter could end up before the Supreme Court, whose rulings have repeatedly gone against tribal jurisdiction over non-Indians.

But Tuesday's decision differs from prior cases in a big way. The 9th Circuit didn't actually say the tribe could exercise jurisdiction over the school districts, only that the Navajo Nation Labor Commission, which hears employment disputes on the reservation, should be given an opportunity to answer that question for itself.

"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," Judge Friedland wrote.

The case affects seven people who were employed at various times by the Window Rock Unified School District and the Pinon Unified School District, whose website proclaims "We are Diné, a proud Navajo tribal community." All seven are Navajo citizens and all have accused the districts of violating the tribe's employment laws.

Michael Coonsis, for example, accused the Window Rock district of violating a Navajo employment preference law when he was passed over for promotions. Barbara Beall said she was wrongly fired from her job in the Pinon district.

The Navajo Nation Labor Commission was established to hear these kinds of matters. "Through its sovereign authority, the Navajo Nation government has passed several employment laws to govern employers operating on its trust lands," the commission said in a brief to the 9th Circuit.

The districts, however, argued that the Supreme Court precedent's require a "presumption" against tribal jurisdiction over non-citizens.

"Truth be told, by attempting to hale the school districts into tribal court, the Navajos are attempting to exercise tribal civil jurisdiction over non- members – indeed, not only non-members, but state political subdivisions making employment decisions over their own employees," the districts wrote in their brief. "This the tribe cannot do."

9th Circuit Court of Appeals on YouTube: Window Rock USD v. Richie Nez

The 9th Circuit, though, has drawn a line in the sand when it comes to one of the Supreme Court's most disastrous decisions. In Nevada v. Hicks, the late justice Antonin Scalia drew Indian Country's scorn when he famously wrote: "State sovereignty does not end at a reservation’s border."

According to the 9th Circuit, Hicks only comes into play when a state's "criminal" interests are implicated. That's not an issue with the public school districts, the majority pointed out in the Navajo ruling.

And it wasn't an issue either when the court, in a long-running dispute involving the Colorado River Indian Tribes, established the rule that was reaffirmed on Wednesday. Tribal governments retain the "inherent authority" to exclude non-citizens from tribally-owned land, the 9th Circuit ruled in 2011.

With the rule, which applies only to situations on tribal lands, the 9th Circuit is able to avoid tricky questions that arise as a result of an entirely different Supreme Court ruling. In Montana v US, the court held that a tribe may exercise jurisdiction over non-Indians if a "consensual relationship" exists between the parties or if the conduct of non-Indians "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare" of a tribe.

Tribal attorneys say it has been extremely difficult to meet either of those exceptions since Montana was decided in 1981. The Supreme Court hasn't provided much guidance either -- just last year, they deadlocked on Dollar General Corporation v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction case.

In Dollar General, the activities at issue occurred on tribal land and the company involved even had a lease with the Mississippi Band of Choctaw Indians. But after Scalia's passing, the remaining eight justices were unable to reach a consensus in the case, leaving intact a lower court victory that supported tribal jurisdiction.

The court is back up to nine members with the addition of Neil Gorsuch, who was nominated by President Donald Trump. Tribal attorneys say his record on issues like sovereign immunity gives them a better shake before the nation's highest court.

Turtle Talk has posted documents from the 9th Circuit case, Window Rock Unified School District v. Reeves.

9th Circuit Court of Appeals Decision:
Majority [Friedland] | Dissent [Christen]

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