Document Type
Brief
Publication Date
10-25-2013
Abstract
The District Court erred when it concluded the Navajo Nation’s employment jurisdiction over the school districts was “plainly lacking,” and the Court was required to stay or dismiss the case pending the school districts’ exhaustion of its remedies in the Navajo Nation courts. Under the plainly lacking exception, this Court requires exhaustion of tribal remedies when jurisdiction is “plausible” or “colorable.” Under the circumstances of the case, which concerns treaty rights, tribal-state relations, and the fact-intensive rules of Montana v. United States, 450 U.S. 544 (1981), the District Court could not have made that determination without a robust factual record created by the Navajo courts. Further, jurisdiction is not plainly lacking under the Treaty of 1868, which recognizes the sovereign right of the Nation to govern its own lands through exclusion. Under the federal common law right to exclude recognized by this Court in Water Wheel Recreation Area, Inc. v. LaRance, 642 F.3d 802 (2011), the Nation’s jurisdiction over the school districts is also, at the very least, plausible. Finally, the Nation’s jurisdiction is plausible under the two exceptions to Montana v. United States, as a lease is a paradigmatic “consensual relationship” and, with additional fact-finding, it can be shown that the ability to regulate employment at the districts is necessary for the Nation’s self-government. For any or all of those reasons, this Court should require the school districts to exhaust their remedies in the Navajo Nation system before presenting the case to the federal courts on the merits of the jurisdictional question.
Publisher
United States Court of Appeals for the Ninth Circuit
Volume
Case Numbers 13-16259, 13-16278
First Page
i
Last Page
47
Keywords
Navajo Nation Labor Commission, Tribal Employment Jurisdiction, Tribal Trust Land, Navajo Preference in Employment Act, NPEA
Recommended Citation
Appellants' Opening Brief, Window Rock Unified School Dist. v. Reeves, 861 F.3d 894 (9th Cir. 2017), cert. denied, 138 S. Ct. 648 (2018) (Nos. 13-16259, 13-16278).