Federal Indian Law Outline. Contents

Federal Indian Law Outline For cases on state school districts and their relationship to the Navajo Nation, see Schools Outline. For cases on the operation of Navajo government, see Government Outline. For cases on particular federal statutes, see various topical outlines. For cases on Navajo courts interpreting federal law, see Statutory Interpretation Outline. For cases on Navajo courts extending comity to rulings of state or federal courts, see Civil Procedure Outline. Contents I. Federal authority and its limits... 1 A. Limits to federal jurisdiction... 1 B. Ability to sue tribes in federal court... 1 C. Federal policies regarding Indian tribes... 1 1. Tribal exhaustion doctrine... 1 2. Federal policy favoring tribal self-government... 2 3. The Indian Self-Determination and Education Assistance Act (ISDA)... 2 4. Assimilation... 3 5. Trust responsibility... 3 6. Indian Tribal Government Tax Status Act... 3 D. Statutes of general applicability... 3 1. General rule... 3 2. Circumstances where general statues do not apply to Indians... 4 3. Self-governance exception... 4 4. Clear legislative intent necessary... 4 E. Navajo legislation need not be approved by the Secretary of Interior... 5 II. State authority and its limits... 5 A. Relationship of states and tribes... 5 B. Tribal power over states... 5 1. Power to regulate state officials... 5 2. Preemption of state jurisdiction... 6 C. State power over Indians and tribes... 6 1. In general... 6 2. Power to execute state process on reservation land... 6 i

3. Regulation of Indians off-reservation... 6 4. State may not infringe on right of Navajos to make their own laws... 6 D. Court proceedings... 6 1. Inter-governmental immunity... 6 2. Applicability of the Full Faith and Credit Clause... 7 3. Ability of states to be sued in Tribal court... 7 4. Ability of tribes to be sued in state court... 8 5. Ability of state to sue in tribal court... 8 III. Tribal authority and its limits... 8 A. Political identity of Indian nations... 8 B. Sources of Navajo tribal authority... 8 C. Inherent power of Navajo Nation... 9 1. Description of Navajo sovereign power... 9 2. Power to regulate non-indian activity... 9 3. Power to regulate intramural affairs... 9 4. Police powers... 10 5. Determination of tribal membership... 10 D. Treaty of 1868... 10 1. Significance of treaties in general... 10 2. Importance of the Treaty of 1868... 10 3. Treaty powers extend beyond inherent powers... 11 4. Power to exclude... 11 5. Regulation and civil jurisdiction over matters arising on the Navajo Nation... 11 6. Power over intramural affairs... 12 7. Treaty extends to lands added to the Navajo Nation after 1868... 12 E. Right of Navajos to make their own laws and live by them... 12 F. Powers conferred or withdrawn by the United States... 12 1. Navajo Nation retains all powers not withdrawn by Congress... 12 2. Retention of inherent powers presumed when Congress is silent... 13 3. Plenary power of Congress... 13 4. Federal statutes conferring power on the Navajo government... 13 ii

G. Rights as landowner... 13 H. Montana test... 13 1. Test explained... 13 2. Consensual relationship... 14 3. Threat to Navajo Nation... 15 4. Scope of the application of Montana... 16 5. Application of Nevada v. Hicks... 16 6. Jurisdiction over non-navajo activity... 16 7. Does not apply to exercises of Treaty powers... 16 I. Territorial jurisdiction of the Navajo Nation... 17 1. General definition... 17 2. Treaty of 1868... 17 3. 1934 Boundary Act... 17 4. Dependent Indian communities... 17 5. Specific territorial issues... 18 J. Power to waive jurisdiction... 18 iii

I. Federal authority and its limits A. Limits to federal jurisdiction State and federal courts do not have jurisdiction over certain cases arising within the Nation. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007). Like interpretations of state law by the highest court of a state, federal courts must defer to this Court s interpretation of Navajo law. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). The federal courts may not override Navajo Supreme Court s interpretation that under Navajo law there is no valid waiver of the Council s authority to regulate employment within the Nation. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). It is the duty of the United States to not intervene in the internal or external affairs of the Navajo Nation and that the Navajo Nation should decline the exercise jurisdiction over the public property of the United States destined for public use. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983). B. Ability to sue tribes in federal court No action may be pursued against an Indian Tribe in federal or state courts, except for habeas corpus actions. Keeswood v. The Navajo Tribe, 2 Nav. R. 46 (Nav. Ct. App. 1979). C. Federal policies regarding Indian tribes 1. Tribal exhaustion doctrine Federal courts defer to tribal courts to decide cases in the first instance. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). Federal policy and case law dictate that deference should be granted to the Tribal Courts to hear matters where the subject of the dispute arises within the boundaries of the Navajo Nation and involve members of the Navajo Tribe. Boyd & McWilliams Energy Group v. Tso, 7 Nav. R. 458 (Ship. Dist. Ct. 1994). As a matter of comity, a federal court should not exercise jurisdiction over cases arising under its federal question or diversity jurisdiction, if those cases are also subject to Tribal jurisdiction until the parties have exhausted their Tribal remedies. This rule is known as the exhaustion rule and the deference both state and federal courts must afford Tribal Courts concerning activities occurring on reservation land. It is deeply rooted in Supreme Court precedent. Boyd & McWilliams Energy Group v. Tso, 7 Nav. R. 458 (Ship. Dist. Ct. 1994). The U.S. Supreme Court considered three factors to determine whether the exhaustion rule should apply: 1) Whether there is furtherance of congressional policy of supporting Tribal selfgovernment; 2) Whether orderly administration of justice is promoted; and 3) Whether in applying the rule, there would be the benefit of Tribal expertise. Boyd & McWilliams Energy Group v. Tso, 7 Nav. R. 458 (Ship. Dist. Ct. 1994). It is immaterial that the Navajo Nation is not a party. Instead, whether the matter is heard in the respective Tribal forum and furthers the congressional policy of supporting Tribal self-government is the pivotal question. Boyd & McWilliams Energy Group v. Tso, 7 Nav. R. 458 (Ship. Dist. Ct. 1994). 1

Where the dispute arose within the exterior boundaries of the Navajo Nation and the respondents are Tribal members whose quality of life is affected, resolution of the dispute promotes Tribal selfgovernment and also encourages the development of Tribal courts. Boyd & McWilliams Energy Group v. Tso, 7 Nav. R. 458 (Ship. Dist. Ct. 1994). There is a strong federal policy that favors resolution of these types of disputes in a non-federal forum and as a matter of comity, the federal courts should decline to hear a case. Boyd & McWilliams Energy Group v. Tso, 7 Nav. R. 458 (Ship. Dist. Ct. 1994). Indian Tribal Courts must have the first opportunity to determine their jurisdiction. Navajo Nation v. O Hare, 5 Nav. R. 121 (Nav. Sup. Ct. 1987). 2. Federal policy favoring tribal self-government The federal government is committed to tribal self-government and economic self-sufficiency. N.C.C. v. Navajo Tax Comm n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991). Congress has consistently encouraged and promoted tribal self-government. Congress is aware that tribal courts play a vital role in tribal self-government and it has consistently encouraged their development. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990). There is a federal policy of strengthening tribal institutions to the extent of self- sufficiency. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990). The federal policy embodied in numerous federal statutes and federal court decisions is that the Indian tribes must exercise the full extent of their sovereignty. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). 3. The Indian Self-Determination and Education Assistance Act (ISDA) ISDA was enacted in 1975 to provide for Indian control of federal programs that were poorly serving Indian communities. Congress authorized the subcontracting of some programs to tribal governments and organizations. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). Under ISDA, tribes and tribal organizations can contract with the Secretary of the Interior or the Secretary of Health and Human Services to administer programs or services that would otherwise have been administered by the federal government, such as education, medical services, construction and law enforcement. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). Congress intended Section 314 of ISDA to cover the same claims as the Federal Tort Claims Act. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). ISDA sets a floor for wages and requires that Indian contractors be given preference in selfdetermination contracts. Nevertheless, with respect to any self-determination contract, or portion of a self-determination contract that is intended to benefit one tribe, the tribal employment or contract preference laws adopted by such tribe shall govern with respect to the administration of the contract or portion of the contract. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002). Because Indian Health Service (IHS) is required to give Indian preference in employment under ISDA, a company which has a contract with IHS to employ medical professionals is subject to Navajo employment law. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000). ISDA requires all programs funded with federal Indian grant monies to extend Indian preference in hiring. Both Navajo Nation and federal law offer Indian preference in employment, but Navajo Nation law gives a specific remedy for noncompliance. While the Navajo Preference in 2

Employment Act is an exercise of the Navajo Nation s inherent power to protect employees, such power is also recognized by federal law. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000). IHS is one of those federal programs that serve Navajos where entry is permitted under Article I of the Treaty of 1868, and but for the fact that the mission of the IHS in Navajo Indian Country is to serve Navajos, 638 entities would not have a contract. The consensual ties a 638 entity has with the Navajo Nation are sufficient to support jurisdiction by consent. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000). Contract schools are funded as tribal organizations under ISDA. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995). 4. Assimilation The United States policy for tribes today is to assimilate its members into mainstream America in accordance with Chief Justice Marshall s policy in Johnson v. M Intosh, 21 U.S. (8 Wheat.), 543 (1823). Navajo people today are incorporating into the American melting pot, and the members of each society are mingling with each other. Today, the Navajo Nation is experiencing a rapid loss of its language due to the subordination by the American dominant society. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003). The United States Judicial Branch s policy regarding Indians today is terminating tribal governments. The most recent line of cases substantially affecting Indians have diminished tribal jurisdiction, the tribes power to govern their own territories. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003). 5. Trust responsibility When Navajos are no longer distinct, non-indians will urge the federal government to dissolve its treaty obligations to the Navajos to open reserved land and resources to the public domain. The American government today is already beginning to avoid its trust responsibility. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003). 6. Indian Tribal Government Tax Status Act The Indian Tribal Government Tax Status Act authorizes Indian nations to be treated as state governments for purposes of federal tax exemptions if the nation engages in an essential governmental function. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). D. Statutes of general applicability 1. General rule Generally, Indians are included in the application of statutes that apply to all persons. MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). It is now well settled by many decisions of the United States Supreme Court that a general statute in terms applying to all persons includes Indians and their property interests. MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). 3

Navajo Supreme Court does not follow the United States Supreme Court s dictum that a general federal statute in terms applying to all persons includes Indians and their property interests. This statement presumes that a general federal statute applies to everyone, including Indians, not explicitly excluded. The statement is inconsistent with congressional policies encouraging tribal self-government and protection of Indian rights, including treaty rights. Furthermore, the Navajo Tribal Council s policy of exercising full Navajo sovereignty makes the Supreme Court reluctant to apply general federal statutes to the derogation of Navajo sovereignty without clear evidence of Congress intent. Estate of Jumbo, 6 Nav. R. 171 (Nav. Sup. Ct. 1990). Note: this holding is presented in strikeout format because it was implicitly (but not expressly) overruled by MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). 2. Circumstances where general statues do not apply to Indians A general statute that does not expressly apply to Indians will not apply if: (1) the law touches exclusive rights of self-governance in purely intramural matters: (2) the application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or (3) there is proof by legislative history or some other means that Congress intended the law not to apply to Indians on their reservations. MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). The applicability of federal statutes to Indian tribes ultimately depends on the purposes of the statutes and treaties at issue, and specific rules cannot be set out to anticipate every case. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990). Each federal statute will be individually examined as the need arises to determine its applicability to the Navajo Nation courts. The principle that Navajo courts derive their power from inherent Navajo sovereignty merits great consideration. In interpreting federal statutes, situations may arise in which Navajo courts may benefit from treatment like state courts. To others they may not. But in each case, care must be taken to ensure that the Navajo Nation courts retain their unique character as courts of a sovereign Indian nation. Navajo sovereignty, tradition and culture must be preserved. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990). 3. Self-governance exception The self-governance exception applies only where the tribe s decision-making power is usurped. MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). 4. Clear legislative intent necessary Absent some expression of legislative intent federal courts should not permit divestiture of tribal power merely on the predicate that federal statutes of general application apply to Indians just as they do to all other persons. MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). A federal law should not be interpreted as divesting Indian nation courts of jurisdiction absent an express declaration of such an intention by Congress. Nez v. Peabody West. Coal Co., 7 Nav. R. 416 (Nav. Sup. Ct. 1999). In order to expand and strengthen Navajo sovereignty, the Navajo Supreme Court presumes that a general federal statute does not apply to the Navajo Nation unless Congress intent for such application is overwhelming. In deciding whether a general federal statute should be held applicable to the Navajo Nation, congressional intent must be balanced against Navajo sovereignty, including self-government and treaty rights. Estate of Jumbo, 6 Nav. R. 171 (Nav. Sup. Ct. 1990). 4

If a federal statute is to limit Indian sovereignty or override Indian rights, Congress must clearly show its intent to do so before a court will allow such intrusion. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). Such congressional intent must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). E. Navajo legislation need not be approved by the Secretary of Interior 25 C.F.R. 11, et seq., which requires Tribal ordinances to be approved by the Secretary of Interior, has no applicability to the Navajo Nation. Navajo Tribe v. Holyan, 1 Nav. R. 78 (Nav. Ct. App. 1973). II. State authority and its limits A. Relationship of states and tribes Tribes and the federal government have a special relationship from which the states are excluded unless Congress clearly allows the states to treat Indians as a part of the general community. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). As far as the Navajo Nation is concerned, the State of Arizona is a foreign government. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). The fact that the Navajo Nation is an independent sovereign, at least as regards the State of Arizona, is clear. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). The Navajo Nation stands on the same footing with regard to the state of Arizona when its entities conduct business within the Navajo Nation as a foreign nation which conducts its affairs within the United States. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). B. Tribal power over states 1. Power to regulate state officials Montana and Hicks do not prevent assertion of jurisdiction over a school district that signed a lease agreeing to abide by Navajo law. Office of Navajo Labor Rel. ex rel. Jones v. Central Consolidated School Dist., 8 Nav. R. 234 (Nav. Sup. Ct. 2002). Note: this case suggests that Montana applies on tribal land, a concept expressly rejected in Nelson v. Pfizer, 8 Nav. R. 369 (Nav. Sup. Ct. 2003). State officials are not outside the jurisdiction of the Navajo Nation courts merely because they are state officials. The Montana test must be satisfied on non-indian fee land. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004). The Treaty of 1868 provides Navajo courts with authority to regulate state officials on tribal land. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004). Neither federal statutes nor the Treaty of 1868 limit the power of the Navajo Nation over a state official. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). Tribal court, not Arizona court, has jurisdiction over state officers who are members of the Navajo Tribe and performed acts on the Navajo Nation. Tracy v. Yazzie, 5 Nav. R. 223 (W.R. Dist. Ct. 1986). 5

Governmental entities can be regulated when operating within the Navajo territorial jurisdiction. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). There are no consistent principles under international law for the exercise of jurisdiction over the political subdivisions and state agencies of foreign states. The three approaches are: (1) finding immunity in the basis a political subdivision is an organ of a state; (2) finding that sovereignty for the purpose of immunity lies only in the central organs of a state; and (3) looking at the function of the entity in deciding whether it is carrying out political acts (which are immune) or simply administrative acts. The test to be applied would appear to be effective control by the foreign government. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). 2. Preemption of state jurisdiction When an Indian Nation enters a field of legislation where there may be concurrent jurisdiction by a state, state jurisdiction is ousted and preempted, leaving exclusive tribal jurisdiction. Johnson v. Dixon, 5 Nav. R. 108 (Nav. Ct. App. 1983). C. State power over Indians and tribes 1. In general In narrow cases, a state may extend its laws onto a reservation to protect its legitimate interest, but it must show that essential tribal relations are not involved and that rights of tribal members will not be jeopardized. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). 2. Power to execute state process on reservation land State law enforcement officials have the authority to enter a reservation to execute state process for the commission of an alleged crime outside of Indian country, so they cannot be sued for tortuous conduct arising from an illegal search. Office of Navajo Labor Rel. ex rel. Jones v. Central Consolidated School Dist., 8 Nav. R. 234 (Nav. Sup. Ct. 2002). 3. Regulation of Indians off-reservation Indians who go beyond their reservation lands can be regulated by the state. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). 4. State may not infringe on right of Navajos to make their own laws Absent explicit congressional authorization, if a state infringes on the right of reservation Indians to make their own laws and be governed by them, that state has acted outside its authority. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). D. Court proceedings 1. Inter-governmental immunity The doctrine of inter-governmental immunity is out of favor and will not be resurrected. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). 6

2. Applicability of the Full Faith and Credit Clause It should not be necessary for this court to remind anyone that Indian nations and tribes were not signatories to the United States Constitution and were not intended to be included within the scope of the mandate of Article IV, Section 1; nor does 28 U.S.C. 1738, which was written to effectuate the mandate of Article IV, Section 1, provide a clear guide to the relationship between Indian courts. Matter of Guardianship of Chewiwi, 1 Nav. R. 120 (Nav. Ct. App. 1977). 28 U.S.C. 1738 does not purport to govern the relationship between Indian courts. The constitutional provision upon which it is based did not envision Indian courts being in existence nor did the act itself. The status of the decisions of Indian courts is generally determined not in relation to full faith and credit, but to the concept of exclusive jurisdiction of each Indian court over certain matters, sanctioned by federal law and United States Supreme Conn decisions. Matter of Guardianship of Chewiwi, 1 Nav. R. 120 (Nav. Ct. App. 1977). 3. Ability of states to be sued in Tribal court The Eleventh Amendment does not prevent states from being sued in tribal courts because it only applies to cases that are filed in federal courts. This is apparent in the text of the Amendment and stated clearly in case law. The text of the Eleventh Amendment provides, [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State. Office of Navajo Labor Rel. ex rel. Jones v. Central Consolidated School Dist., 8 Nav. R. 234 (Nav. Sup. Ct. 2002). Suits against state political sub-divisions in tribal courts are not unknown. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). Disputes between states and Indian tribes are analogous to state vs. state disputes. When a state is sued in another sovereign s court, the rule governing state suability in its own court is not controlling because such a claim necessarily implicates the power and authority of a second sovereign. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). If a state s sovereign immunity is to be recognized by the second sovereign, then its source must be found in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). The Navajo Nation does not grant immunity from suit to any state as a matter of comity. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). The Navajo Nation has no agreement, express or implied, with Utah which would require Navajo courts to recognize Utah s sovereign immunity. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). States of the Union are foreign governments in relation to the Navajo Nation. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). The Navajo Nation courts have jurisdiction over suits against a state. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). As to allowing suit against a foreign government, there is no command in federal law that the Navajo Nation grant immunity in such suits. [T]he [privileged] position of a foreign state is not in explicit command of the [Constitution]. It rests on considerations of policy given legal sanction by this Court. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). Considering the aspects of a waiver of sovereign immunity by the host sovereign, the ability of the foreign sovereign to be sued in its own courts, a lack of impact upon friendly relations and fair 7

play, there is no reason a foreign sovereign cannot be sued. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). 4. Ability of tribes to be sued in state court A suit against the Navajo Nation in Utah court would be barred by tribal immunity from suit, not as a matter of comity, but based upon federal pre-emption. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). No action may be pursued against an Indian Tribe in federal or state courts, except for habeas corpus actions. Keeswood v. The Navajo Tribe, 2 Nav. R. 46 (Nav. Ct. App. 1979). 5. Ability of state to sue in tribal court Under federal domestic law it is clear that a foreign government or entity can bring suit in United States courts so long as it is recognized by the United States and at peace with it. The Courts of the Navajo Nation take the same view. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). III. Tribal authority and its limits A. Political identity of Indian nations Indian nations are distinct, independent political communities, retaining their original natural rights, but they have ceased to be a state in the international law sense. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). Indian nations are self-governing under the law of nations-international law. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). Indian tribes are not states. They have status higher than that of states. They are subordinate and dependent nations possessed of all powers as such only to the extent that they have expressly been required to surrender them by the superior sovereign, the United States. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982). B. Sources of Navajo tribal authority There are three foundations for jurisdiction in Indian Law cases. Navajo jurisdiction comes from (1) the inherent authority of the Navajo Nation, an Indian nation, (2) the Navajo Nation s treaties with the United States of America, and (3) federal statutes which vest jurisdiction in the Navajo Nation. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000). The existence and extent of a tribal court s jurisdiction will require a careful examination of tribal sovereignty, the extent to which the sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statute, Executive Branch Policy as embodied in treaties and elsewhere, and administrative or judicial decisions. Nez v. Peabody West. Coal Co., 7 Nav. R. 416 (Nav. Sup. Ct. 1999). 8

C. Inherent power of Navajo Nation 1. Description of Navajo sovereign power The Navajo Nation enjoys governmental authority over its territory, as does any sovereign. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). Inherent Navajo jurisdiction over non-indian business on Tribal, non-fee, land, is based upon the Treaty of 1868 and the inherent sovereignty of the Nation. A.P.S. v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990). 2. Power to regulate non-indian activity The power to regulate non-indian activity on trust lands is absolute, and does not require the Nation to fulfill the exceptions announced by the United States Supreme Court in Montana v. United States, 450 U.S. 544 (1981), and applied to tribal trust land in Nevada v. Hicks, 533 U.S. 353 (2001). Thinn v. Navajo Generating Station, No. SC-CV-25-06 & No. SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). The Navajo Nation has jurisdiction to regulate non-indian activity on trust lands unless it has validly waived that jurisdiction in the provisions of a lease. Thinn v. Navajo Generating Station, No. SC-CV-25-06 & No. SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). Tribe may assert inherent sovereignty over non-indian conduct in its territory. Nelson v. Pfizer, 8 Nav. R. 369 (Nav. Sup. Ct. 2003). Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non- Indians on their reservations, even on non-indian fee lands. 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. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). A tribe may also 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. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). Inherent Navajo jurisdiction over non-indian business on Tribal, non-fee, land, is based upon the Treaty of 1868 and the inherent sovereignty of the Nation. A.P.S. v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990). The ability to regulate the activities of non-members on tribal trust lands is an important part of tribal sovereignty. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990). 3. Power to regulate intramural affairs The sovereignty retained by an Indian tribe includes the power of regulating its internal and social relations. MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). The Navajo Nation has exclusive rights of self-governance with respect to intramural matters. MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). With the Indians, they are regarded as having a semi-independent position when they preserved their tribal relations; not as states; not as Nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990). 9

The sovereignty retained by an Indian tribe includes the power of regulating its internal and social relations. Validation of Marriage of Francisco, 6 Nav. R. 134 (Nav. Sup. Ct. 1989). The sovereignty retained by an Indian tribe includes the power of regulating its internal and social relations. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). 4. Police powers The Navajo Nation retains the right to protect its members, the public at large, and its territory. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000). Navajo Nation police power is the power to adopt such laws and regulations as tend to prevent the commission of fraud and crime, and secure generally the comfort, safety, morals, health, and prosperity of its citizens by preserving the public order, preventing a conflict of rights in the common intercourse of the citizens, and insuring to each an uninterrupted enjoyment of all the privileges conferred upon him or her by the general laws. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). Navajo Nation inherently has the authority to protect its members from fraud, deceit, undue influence, overreaching, unconscionable conduct, torts and the other kinds of personal conduct the civil law is designed to regulate. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983). 5. Determination of tribal membership The power of the Navajo Courts of the Navajo Tribe of Indian to determine questions of membership in their tribe for tribal purposes derives from the character of its tribal status as a distinct political entity. Trujillo v. Morgan, 1 Nav. R. 59 (Nav. Ct. App. 1970). D. Treaty of 1868 1. Significance of treaties in general A treaty constitutes the United States recognition of jurisdiction. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000). 2. Importance of the Treaty of 1868 To the Navajo, the Treaty of 1868 is the organic law. It is the old law made at Fort Sumner by our ancestors following years of captivity to secure the Nation's prosperity. Hwéeldidi Beehaz áanii Sáni Nihizáz7ni nee niji bee hoot ih dooleel yiniyé nihá áyiilaa7g77. This is why the Treaty is considered a sacred document. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). Supreme Court cannot ignore the Treaty of 1868 which embodies Naayéé yee ak'ehdeesdl99go Hózh7óój77 yee ak idiyaa silįį (they overcome adversity through Protective Way to restore peace and harmony) between our ancestors and the United States. This Court's precedents have emphasized the Treaty as the primary source of the Nation's authority over non-indians within the Nation. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). 10

3. Treaty powers extend beyond inherent powers Despite the general prohibitions recognized by the United States Supreme Court, the Navajo Nation Supreme Court has recognized authority under the Treaty of 1868 above and beyond inherent tribal authority. In the Matter of A.P., 8 Nav. R. 671 (Nav. Sup. Ct. 2005). 4. Power to exclude The Treaty of 1868 recognizes the Nation s authority to exclude and therefore regulate non-indian entities on trust land. Cedar Unified School Dist. v. Nav. Nat. Labor Comm n, Nos. SC-CV-53-06 and SC-CV-54-06, slip op. (Nav. Sup. Ct. November 21, 2007). Article I of the Treaty recognizes the Navajo Nation s reserved power to admit non-navajos to its territorial jurisdiction, and thus its protection, or to deny entry. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000). Article II of the Treaty of 1868 provides that the lands of the Navajo Nation are set apart for the use and occupation of the Navajo tribe of Indians; and for such other friendly tribes or individual Indians as from time to time they may be willing with the consent of the United States, to admit among them. This treaty language is the basis for Navajo Nation civil jurisdiction, including jurisdiction over non-indians. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000). The 1868 Navajo Treaty, in Article II, reserves authority to the Navajo Nation to admit non- Navajos or not and the United States specifically agreed that no person (with certain exceptions) shall ever be permitted to pass over, settle upon, or reside in the reservation. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). 5. Regulation and civil jurisdiction over matters arising on the Navajo Nation The Navajo Nation retains civil jurisdiction over claims arising within the Nation by inherent sovereignty under Article II of the Treaty. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). Article II specifically recognizes the Navajo Nation's authority to regulate all non-members other than certain federal employees on its lands. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). Under the Treaty of 1868, the Navajo Nation has authority to regulate non-indian activity on trust lands. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). The power to regulate non-indian activity on trust lands is absolute, and does not require the Nation to fulfill the exceptions announced by the United States Supreme Court in Montana v. United States, 450 U.S. 544 (1981), and applied to tribal trust land in Nevada v. Hicks, 533 U.S. 353 (2001). Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). The Court has recognized broad civil authority over non-indians on tribal lands, holding that the exclusion provision of the Treaty of 1868 allows for civil jurisdiction regardless of Hicks. In the Matter of A.P., 8 Nav. R. 671 (Nav. Sup. Ct. 2005). The Treaty of 1868 with the United States recognizes broad civil and criminal powers over all who enter the Navajo Nation. In the Matter of A.P., 8 Nav. R. 671 (Nav. Sup. Ct. 2005). Treaty of 1868 gives civil jurisdiction over non-indians. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000). 11

6. Power over intramural affairs Implicit in the Treaty of 1868 between the United States of America and the Navajo Tribe of Indians is the understanding that the internal affairs of the Navajo people are within the exclusive jurisdiction of the Navajo Nation government. MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). The Navajo treaty language makes it clear that the United States Government agreed to leave the Navajos alone on their reservation to conduct their own affairs with a minimum of interference from non-indians. MacDonald v. Ellison, 7 Nav. R. 429 (Nav. Sup. Ct. 1999). The 1868 Treaty is significant here for two reasons: it defines the original Navajo Reservation (an existing reservation referred to in section 7 of the IRA), and it proclaims the Navajo Nation s retained inherent sovereign authority over the exterior boundaries of its territory -- then and now. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). Implicit in the Treaty of 1868 is the understanding that the internal affairs of the Navajo people are within the exclusive jurisdiction of the Navajo Nation government. Validation of Marriage of Francisco, 6 Nav. R. 134 (Nav. Sup. Ct. 1989). 7. Treaty extends to lands added to the Navajo Nation after 1868 When the President of the United States through executive order, or Congress through statute, expanded the Navajo Reservation, our leaders understood at the time and understand today that their Treaty-recognized authority extends to that land. As with other extensions, the Reservation was extended through Executive Order of May 17, 1884 into the portion of Utah on which this claim arose by the federal government with neither conditions nor limitations on the Nation's authority over that extension. The Nation's Article II authority is no different whether on the original Reservation or later extensions. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). E. Right of Navajos to make their own laws and live by them It is an established principle in Indian law that the Navajo Nation has the right to make its own laws and be ruled by them. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). F. Powers conferred or withdrawn by the United States 1. Navajo Nation retains all powers not withdrawn by Congress Indian tribes retain all those aspects of sovereignty which have not been withdrawn by federal statute or treaty or by virtue of their dependent status. Nez v. Peabody West. Coal Co., 7 Nav. R. 416 (Nav. Sup. Ct. 1999). Tribes retain all sovereignty not divested by Congress. Farley v. McGee, 7 Nav. R. 490 (Ship. Dist. Ct. 1996). Navajo Nation courts have jurisdiction over all matters not taken away by Council or by Congress. The authority is retained authority coming from its sovereignty. Navajo Nation v. Salandro, 7 Nav. 447 (Chin. Dist. Ct. 1992). The sovereignty of Indian Tribes is absolute excepting only as to such rights as are taken away by the paramount government, the United States. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983). 12

Indian Tribal Courts have inherent jurisdiction over all matters not taken over by the federal government, and federal legislative action and rules promulgated thereunder support the authority of the Tribal Courts. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983). Since the Navajo Nation is a subordinate sovereignty, its powers of self government are subject to treaties and to the express legislation of Congress representing the dominant sovereignty. Navajo Tribe v. Holyan, 1 Nav. R. 78 (Nav. Ct. App. 1973). Navajo courts retain all sovereignty not expressly taken away by Congress. Navajo Tribe v. Orlando Helicopter Airways, Inc., 1 Nav. R. 40 (Nav. Ct. App. 1972). 2. Retention of inherent powers presumed when Congress is silent Until Congress acts, the tribes retain their existing sovereign powers. N.C.C. v. Navajo Tax Comm n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991). Normally, the proper inference from congressional silence is that the tribal sovereign power remains intact. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990). 3. Plenary power of Congress Congress, using its plenary power over Indian affairs, may limit a tribe s exercise of its sovereign power. N.C.C. v. Navajo Tax Comm n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991). Congress can impose through legislation certain limitations on Navajo sovereignty because Congress has special authority over Indian affairs. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). Congress has special authority relating to Indian Affairs, in fulfillment of its unique trust obligations to protect and preserve the inherent attributes of Indian tribal self-government, consistent with the sovereign status of Indian tribes as recognized by the treaties, policies, decisions, Constitution and other laws of the United States. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987). 4. Federal statutes conferring power on the Navajo government Navajo courts have the authority to use any applicable law of the United States, which would include 42 U.S.C. 1983. The source of Navajo authority is court statutes originally approved by the Secretary of the Interior, and that approval binds the United States. Office of Navajo Labor Rel. ex rel. Jones v. Central Consolidated School Dist., 8 Nav. R. 234 (Nav. Sup. Ct. 2002). G. Rights as landowner Tribe may assert authority as landowner. Nelson v. Pfizer, 8 Nav. R. 369 (Nav. Sup. Ct. 2003). H. Montana test 1. Test explained In Montana cases, for tribal jurisdiction to attach, there must be either 1) a consensual relationship between a party and the Navajo Nation or a Navajo tribal member, or 2) its conduct must threaten or have some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 660 (Nav. Sup. Ct. 2005). 13

Montana restricts Indian sovereignty over non-indian conduct on non-indian fee land absent consensual relationship or direct effect on Navajo Nation. Nelson v. Pfizer, 8 Nav. R. 369 (Nav. Sup. Ct. 2003). Absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers-who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe s political integrity, economic security, health, or welfare. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000). Absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers-who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe s political integrity, economic security, health, or welfare. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). 2. Consensual relationship Auto maker established a consensual relationship where its product did not merely enter the stream of commerce and thus was incidentally present within the Nation. The product was sold directly to the Nation and was foreseen to be put to government use primarily on reservation roads. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). Auto maker, acting through its money lending subsidiary, established a consensual relationship with the Navajo Nation upon sale and financing of over 300 vehicles to the Navajo Nation government for official use. The auto maker benefited by both the sale and the financing. In addition, the auto maker structured the transaction as a tax-exempt purchase by an Indian nation and required the Nation to certify that the vehicles would only be used for essential governmental functions, as defined by the federal Indian Tribal Government Tax Status Act. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). Auto maker established a consensual relationship where provision of amended financing agreement states that the transaction will be governed by Navajo substantive and procedural law and all actions which arise out of this Lease or out of the transaction it represents shall be brought in the courts of the Navajo Nation. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). There is a sufficient consensual relationship where an insurance company has a relationship with an insured. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 660 (Nav. Sup. Ct. 2005). There is a sufficient consensual relationship where an insurance company filed an interpleader action in Navajo courts. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 660 (Nav. Sup. Ct. 2005). The Treaty of 1868 negates the Montana test on tribal land. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 660 (Nav. Sup. Ct. 2005). The Montana test allows jurisdiction if the asserted jurisdiction has a nexus to a consensual relationship. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 660 (Nav. Sup. Ct. 2005). Jurisdiction over the question whether a cap provision in an insurance contract precludes an award of pre-judgment interest has a nexus to the contract itself and therefore fulfills the consensual relationship test from Montana. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 660 (Nav. Sup. Ct. 2005). The Navajo Nation has regulatory and adjudicatory powers over non-indians where there are consensual relationships with the tribe or its members, commercial dealings, contracts, leases or 14

other arrangements. Office of Navajo Labor Rel. ex rel. Jones v. Central Consolidated School Dist., 8 Nav. R. 234 (Nav. Sup. Ct. 2002). The consensual relationship test can be satisfied by (1) the act of employing Navajos on the reservation, which creates an employer-employee relationship, (2) the act of selling to Navajos, (3) using Navajos as a lure for tourists, (4) the provision of government services, and (5) the fact that the business is a registered Navajo trader. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000). Application of Montana allows exercise of jurisdiction over trading post on fee land because employees form consensual relationship. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000). Indian nations retain inherent sovereign power over non-indian conduct on non-indian fee land within the borders of an Indian nation if the non-indian enters consensual relationships with the tribe or its members. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). Tribal courts have jurisdiction over non-indians that enter into consensual relations with Tribal members. Farley v. McGee, 7 Nav. R. 490 (Ship. Dist. Ct. 1996). Tribe may regulate non-members who enter into consensual relationships with the tribe or its members. Sandoval v. Tinian, Inc., 5 Nav. R. 215 (Crwn. Dist. Ct. 1986). 3. Threat to Navajo Nation The second Montana exception is met where the conduct of the non-indian threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Since Montana the U.S. Supreme Court has narrowed the exception, stating that the assertion of Indian nation jurisdiction must be necessary to protect tribal self-government and control internal relations. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). According to the U.S. Supreme Court in Plains Commerce, the Indian Nation must now show some catastrophic effect on its existence to justify its civil authority over a nonmember. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). Navajo Nation police officers depend on their official vehicles to perform patrol and police duties across 26,110 square miles of the Nation. Our officers are severely understaffed and underpaid. Serving a reservation population of 165,614, our police officer to population ratio is 0.8:1,000, compared with the recommended United States average ratio of 2.5:1,000. The patrol work in the largely rural high desert is lonely, difficult and thankless. It is extremely difficult to attract and maintain police officers under these circumstances. It will be impossible to recruit and keep police officers if the Navajo Nation government is powerless to prevent defective vehicles from being purchased for their use, and powerless to process claims through our courts for police fatalities caused by defective vehicles. The effect on public safety and government morale would be catastrophic were jurisdiction over such claims to be denied the Navajo courts. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008). Evidently, the death of a police officer in the isolated remoteness of the reservation that is caused by a defective official vehicle threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe in numerous ways. It threatens the functioning of Navajo Public Safety; public confidence in our police officers and Navajo Nation government; the public welfare of the Navajo people who rely on the isolated patrols of Navajo police; the recruitment and retention of Navajo police officers; the ability of Navajo Nation government to provide protection to its law enforcement officials in the field and to the public; and 15