Non-Navajo businesses can't duck tribal court, court says

The Navajo Nation Supreme Court has rejected attempts by a Nevada bus tour company to prevent a tribal court from hearing an accident case that claimed the lives of a Navajo man and his unborn child.

Attorneys for EXC Inc. argued that Navajo courts should not have jurisdiction over this case because the tour bus in question was not conducting tours on the reservation and was only going through the reservation to tour off-reservation sites when the accident occurred.

The question at issue was, do Navajo courts have jurisdiction over non-reservation businesses that have no ties with the tribal government?

The case goes back to Sept. 21, 2004, when a tour bus and driver were provided by EXC under an agreement with Go Ahead Vacations, a Massachusetts company. The bus collided head-on with a car on U.S. 160 not far from Kayenta.

The driver of the car, Butch Johnson, died, as did the fetus carried by his pregnant wife, Jamien Rae Jensen, a passenger in the car. Their minor child, Dakotah, was injured.

A lawsuit was filed by Johnson's estate against the company and Progressive Insurance Co. but the insurance company was later dismissed from the lawsuit after it settled with the family.

Attorneys for EXC, however, have spent the last four years trying to keep the Kayenta District Court from hearing the case.

They argued that the tour bus was "only passing through the Navajo Nation while making an incidental side trip to Monument Valley Tribal Park and staying overnight at a Navajo Nation hotel."

Attorneys representing the family, however, argued that the visit to Monument Valley was no side trip and was, in fact, a regular stop on EXC's national parks package tours. The company took tourists there 12 times in 2004 alone, the court noted in its ruling.

The Supreme Court also pointed out that not only did the tour bus stop at Monument Valley Tribal Park and then stay overnight at a Kayenta hotel, it traveled more than 200 miles of reservation roads.

The company, however, claimed that the stop at the park was merely for services such as a restroom break.

The court did not agree, saying that people on the tour had an opportunity to go to the visitor center and the park museum and had to pay a park entrance fee.

"While the stop at the park alone would itself count as a tour activity, the tour bus took a route across almost 200 miles of pristine and scenic Navajo canyon lands and high country, which together with Navajo communities en route, are of sightseeing interest," the ruling stated.

The ruling also pointed out that with 2.5 million non-Natives visiting the reservation annually, the Navajo Nation must come up with ways to regulate them, especially given its chronically understaffed police force.

The tribe does this, in part, by requiring companies that do tours on the reservation to get a permit, which requires them to have sufficient bonding to cover damage claims. The companies also must agree to the jurisdiction of the Navajo Nation courts if a problem ends up in litigation.

Company officials pointed out that EXC has never applied for a permit and therefore never signed a consent form agreeing to accept tribal jurisdiction.

The court replied that it's not uncommon for tour companies to try to evade Navajo Nation regulations.

"Due to a shortage of enforcement resources, the Navajo Nation relies in good faith that tour businesses will declare themselves, take out the requisite permits and sign the required agreements," the ruling stated.

As a matter of public welfare and Navajo Nation governance, the court said, it could not allow a company to evade tribal jurisdiction and regulations by just not obtaining a permit.

But even here there was disagreement. EXC lawyers argued that failure to sign the permit only resulted in a civil fine and not finding that the company is under tribal court jurisdiction.

The court pointed out that the Navajo Nation Council has passed laws governing tour bus operation on the reservation and companies providing these kinds of services are expected to follow the law whether they secured a permit or not.

The court also didn't like sections of the company's arguments that referred to the tribe as "landowners" without jurisdiction over non-members.

And while federal courts have at times viewed tribal governments in this way, the Supreme Court ruling said this type of language "ignores history, reality and express federal Indian policy that has been in effect since 1975 with the enactment of the Indian Self-Determination Act."

In the end, the Supreme Court came out strongly for the tribal court's right to deal with non-tribal members who enter the reservation and then are involved in a problem.

"Thousands of non-Navajos play important roles in Navajo government and society," the ruling stated. "A majority of the 400-strong membership of the Navajo Nation Bar Association are non-Navajos and also state licensed attorneys.

"Non-members serve on our juries, may act as tribal court staff attorneys and commissioners, may be appointed as hearing officers and may hold important government positions," the court said.

"As an indication of the even-handedness of Navajo Nation courts, more than 20 percent of non-indigent Navajo Nation court cases have involved non-Navajos, with non-members winning 47.4 percent of such cases," the court continued.

"We further note that non-Navajos practicing in our courts argue Navajo fundamental laws learned through our published opinions, our statutes, scholarly writings and contact with elders," the justices stated.