Tribal court can't hear tribal cop case

FRIDAY, NOVEMBER 1, 2002

A federal judge last month barred the parents of a Navajo Nation police officer who was killed on duty from suing the Ford Motor Company in tribal court for her death.

While patrolling reservation land in Utah, Esther Todecheene, a tribal member, died in a single car accident on June 8, 1998. She was driving alone in a Ford Expedition when it overturned on a road maintained by the Navajo Nation.

Believing the vehicle to be defective, Todecheene's parents, Joe and Mary, sued Ford in Navajo court in April 2000. But the automotive giant challenged the tribe's jurisdiction and asked a federal court to intervene.

In a September 19 decision, U.S. District Judge Paul G. Rosenblatt of Arizona sided with Ford. He said Supreme Court precedent freed the company from tribal authority due its status as a non-tribal member.

"This court begins with the general rule that tribal courts do not generally have jurisdiction over nonmembers," he wrote.

In arriving at the conclusion, Rosenblatt rejected the family's argument that the dispute falls under what are known as the Montana exceptions, named for a 1981 Supreme Court case. He said Ford never consented to tribal jurisdiction and its business dealings on the reservation don't impact the political integrity, economic security or health and welfare of the tribe.

"The fundamental argument is that tribes should have jurisdiction over all claims brought within its tribal court system, because if not, tribal sovereignty is adversely affected," he wrote. "This is directly contrary to Montana and its progeny and not in the public's best interest."

Rosenblatt did note that non-Indians who face suits in tribal court usually have to exhaust their options before seeking federal review. But he cited the Supreme Court's 2001 Hicks decision in excusing Ford from the requirement when the tribe's jurisdiction was "clearly lacking."

Despite the ruling, the case isn't over. Rosenblatt heard additional proceedings earlier this week as to Ford's potential liability in federal court for the accident.

When she died, Todecheene joined a growing list of Indian Country cops killed in the line of duty. Overworked and underpaid, many end up patrolling vast areas of land alone.

The Bureau of Indian Affairs has a memorial to the fallen cops at its police academy in New Mexico. Three names were added to the Law Enforcement Officer's Memorial this past May.