Published July 1, 2017
WINDOW ROCK– On Wednesday, June 28, 2017 the Navajo Nation secured the second of two back-to-back victories against state public school districts seeking to avoid review by Navajo courts for challenges to Navajo jurisdiction.
The Ninth Circuit opinion in Window Rock Unified School District v. Nez requires two Arizona school districts that operate on Navajo trust land to present their case before the Navajo Nation’s courts so those courts can make the initial determination of whether Navajo jurisdiction applies to those cases. This is a strong affirmation of the tribal exhaustion principle.
“We are very pleased with the Ninth Circuit’s opinion. It affirms the Nation’s consistent and long-held position that our treaty and sovereign authority apply to all entities that lease our land, including school districts organized under state law” said Assistant Attorney General Paul Spruhan who argued the case at the District Court level and before the Ninth Circuit.
The Court relied on the Navajo Nation’s Treaty of 1868 as the basis for a possible finding by the Nation’s courts that the Nation retains sovereignty over all tribally-owned lands. Judge Michelle T. Friedland wrote for the majority, “it is at least plausible that the Tribe has adjudicative jurisdiction here because the conduct occurred on the tribal land, where the Nation has the right to exclude.” The Court also noted that the disputes at issue arise on tribal trust lands, and so the Montana rule does not apply.
The Ninth Circuit accordingly dismissed the federal case due to the school districts’ failure to exhaust tribal remedies. The opinion comes on the heels of a June 19, 2017 decision by the Tenth Circuit dismissing a challenge by McKinley County School District to the Nation’s jurisdiction over public school districts in New Mexico.
Attorney General Ethel Branch stated, “We are thankful to the courts for their measured application of the law, and for respecting our treaty-based and inherent sovereign rights.” She further noted, “I am extremely pleased with our in-house team. This is the fourth victory this year that our Litigation and Employment Unit has secured before a federal appeals court.”