Tribal Court Dynamics: Relationship, Reasons, and Examples

 
THE TRIBAL COUNSEL’S RELATIONSHIP
WITH PLAINTIFF’S ATTORNEYS
 
PAUL SPRUHAN
NAVAJO NATION DEPARTMENT OF JUSTICE
 
POTENTIAL REASONS FOR USING
TRIBAL TORT LAW IN TRIBAL COURT
 
Difference in compensation 
(e.g. perception that tribal
courts will award more in damages, allows punitive
damages, or tribal law doesn’t cap damages when federal
or state law does)
Wider zone of compensable parties 
(e.g. tribal law
recognizes wider group of extended family members
eligible for compensation)
Wider zone of injured parties 
(e.g. tribal law recognizes
compensable loss for miscarriage)
Litigation before tribal judge and tribal peer jurors under
familiar tribal law 
(e.g. understanding of cultural beliefs
and principles applying to compensation for injuries)
 
 
JURISDICTIONAL CHALLENGES
 
Can sue individual tribal trial and appellate judges
for prospective injunctive relief to challenge
assertion of tribal jurisdiction (
Cf. Ex Parte Young
)
Tribal judges who issued the rulings become
involuntary defendants in federal court
For Navajo Nation, challenges to adjudicatory
jurisdiction have been exclusively torts or
employment claims brought by plaintiff attorneys
for individual Navajos.
 
 
 
 
 
TRIBAL APPELLATE COURT 
   
FEDERAL DIST. CT.
Non-Member Defendant/Appellant v. Tribal Plaintiff/Appellee
  
Non-Member Plaintiff v. Tribal
       
Defendant AND Tribal Judges
 
 
TRIBAL DISTRICT COURT
Tribal Plaintiff v. Non-Member Defendant
 
 
(With Exhaustion)
 
 
(Without Exhaustion)
 
NAVAJO EXAMPLES
 
Pfizer v. Navajo Nation
 
(2004) 
(no jurisdiction over product liability
case against pharmaceutical company)
Ford Motor Co. v. Todecheene
 
(2007) 
(no jurisdiction over tort
claim for defective police vehicle)
Macarthur v. San Juan County 
(2007) 
(no jurisdiction over
employment grievances against state-operated hospital)
Red Mesa Unified School District v. Yellowhair 
(2010) 
(No
jurisdiction over employment grievance)
EXC v. Jensen 
(2012) 
(No jurisdiction over wrongful death action
against tour bus company)
Window Rock Unified School District v. Reeves 
(2013)
 
(No
jurisdiction over employment grievance)
Gallup School Board v. Henderson 
(2015) 
 
(Pending challenge to
employment jurisdiction by New Mexico public school)
 
Non-Navajo Examples
 
Strate v. A-1 Contractors 
(1997) 
(No jurisdiction over
car accident tort)
Nevada v. Hicks 
(2001)
 (No jurisdiction over Section
1983 civil rights claims against state law enforcement)
Plains Commerce Bank v. Long Family Land and Cattle
Co. 
(2008) (No jurisdiction over discrimination tort
recognized by Cheyenne River Sioux tort law)
Dollar General Corp. v. Mississippi Band of Choctaw
Indians 
(2015) (jurisdictional challenge to sexual
assault tort recognized by Choctaw law)
 
POSSIBLE APPROACHES OF TRIBAL
COURT DEFENDANTS
 
Ignore the case (e.g. 
Macarthur 
non-
participation; default)
Vigorously defend jurisdiction and coordinate
defense with tribal plaintiff’s attorney or
simply take over the case from plaintiff’s
attorney
Seek dismissal as direct defendant, and
continue the case as amicus (e.g. 
EXC v.
Jensen
)
 
PITFALLS OF TRIBAL TORT CASES
 
Plaintiff’s attorney has ultimate loyalty to
interests of individual clients, not the tribe
Tribe may want to settle or not proceed with
appeals
Tribe may be able to live with narrow
jurisdictional ruling and adjust law for future
cases, but not have support of plaintiff’s attorney
to drop the case
No real ability for tribe to control long-term legal
strategy on jurisdiction
 
BENEFITS OF TRIBAL TORT CASES
 
Have multiple parties and lawyers litigating the case
(e.g. more discovery, more briefing, can strategize on
issues to focus on in individual briefs)
Tribal government can support individual tribal
members in receiving just compensation under tribal
law in tribal court for actions of non-members within
tribal territory
Participation of tribe allows expert Indian law
practitioners to assist personal injury/employment
lawyers in navigating complex area of federal Indian
law
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Explore the dynamics of tribal court systems, including the relationship between tribal counsel and plaintiff attorneys, potential reasons for using tribal tort law in court, jurisdictional challenges faced, and examples from Navajo and Non-Navajo cases.


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  1. THE TRIBAL COUNSELS RELATIONSHIP WITH PLAINTIFF S ATTORNEYS PAUL SPRUHAN NAVAJO NATION DEPARTMENT OF JUSTICE

  2. POTENTIAL REASONS FOR USING TRIBAL TORT LAW IN TRIBAL COURT Difference in compensation (e.g. perception that tribal courts will award more in damages, allows punitive damages, or tribal law doesn t cap damages when federal or state law does) Wider zone of compensable parties (e.g. tribal law recognizes wider group of extended family members eligible for compensation) Wider zone of injured parties (e.g. tribal law recognizes compensable loss for miscarriage) Litigation before tribal judge and tribal peer jurors under familiar tribal law (e.g. understanding of cultural beliefs and principles applying to compensation for injuries)

  3. JURISDICTIONAL CHALLENGES Can sue individual tribal trial and appellate judges for prospective injunctive relief to challenge assertion of tribal jurisdiction (Cf. Ex Parte Young) Tribal judges who issued the rulings become involuntary defendants in federal court For Navajo Nation, challenges to adjudicatory jurisdiction have been exclusively torts or employment claims brought by plaintiff attorneys for individual Navajos.

  4. Non-Member Defendant/Appellant v. Tribal Plaintiff/Appellee TRIBAL APPELLATE COURT FEDERAL DIST. CT. Non-Member Plaintiff v. Tribal Defendant AND Tribal Judges (With Exhaustion) (Without Exhaustion) TRIBAL DISTRICT COURT Tribal Plaintiff v. Non-Member Defendant

  5. NAVAJO EXAMPLES Pfizer v. Navajo Nation(2004) (no jurisdiction over product liability case against pharmaceutical company) Ford Motor Co. v. Todecheene(2007) (no jurisdiction over tort claim for defective police vehicle) Macarthur v. San Juan County (2007) (no jurisdiction over employment grievances against state-operated hospital) Red Mesa Unified School District v. Yellowhair (2010) (No jurisdiction over employment grievance) EXC v. Jensen (2012) (No jurisdiction over wrongful death action against tour bus company) Window Rock Unified School District v. Reeves (2013)(No jurisdiction over employment grievance) Gallup School Board v. Henderson (2015) (Pending challenge to employment jurisdiction by New Mexico public school)

  6. Non-Navajo Examples Strate v. A-1 Contractors (1997) (No jurisdiction over car accident tort) Nevada v. Hicks (2001) (No jurisdiction over Section 1983 civil rights claims against state law enforcement) Plains Commerce Bank v. Long Family Land and Cattle Co. (2008) (No jurisdiction over discrimination tort recognized by Cheyenne River Sioux tort law) Dollar General Corp. v. Mississippi Band of Choctaw Indians (2015) (jurisdictional challenge to sexual assault tort recognized by Choctaw law)

  7. POSSIBLE APPROACHES OF TRIBAL COURT DEFENDANTS Ignore the case (e.g. Macarthur non- participation; default) Vigorously defend jurisdiction and coordinate defense with tribal plaintiff s attorney or simply take over the case from plaintiff s attorney Seek dismissal as direct defendant, and continue the case as amicus (e.g. EXC v. Jensen)

  8. PITFALLS OF TRIBAL TORT CASES Plaintiff s attorney has ultimate loyalty to interests of individual clients, not the tribe Tribe may want to settle or not proceed with appeals Tribe may be able to live with narrow jurisdictional ruling and adjust law for future cases, but not have support of plaintiff s attorney to drop the case No real ability for tribe to control long-term legal strategy on jurisdiction

  9. BENEFITS OF TRIBAL TORT CASES Have multiple parties and lawyers litigating the case (e.g. more discovery, more briefing, can strategize on issues to focus on in individual briefs) Tribal government can support individual tribal members in receiving just compensation under tribal law in tribal court for actions of non-members within tribal territory Participation of tribe allows expert Indian law practitioners to assist personal injury/employment lawyers in navigating complex area of federal Indian law

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