Exc Inc. v. Jamien Jensen

Ninth Circuit

Exc Inc. v. Jamien Jensen

588 F. App'x 720

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 23, 2014

Docket12-16958

StatusUnpublished

Cited by1 cases

This text of 588 F. App'x 720 (Exc Inc. v. Jamien Jensen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Exc Inc. v. Jamien Jensen, 588 F. App'x 720 (9th Cir. 2014).

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Opinion

MEMORANDUM **

Appellants, members of the Jensen/Johnson family, appeal the district court’s holding that the Navajo Nation tribal courts may not exercise adjudicatory jurisdiction over a highway accident that occurred on a stretch of U.S. Highway 160 — an Arizona state highway — within the exterior boundaries of the Navajo Reservation. We review determinations of tribal court jurisdiction de novo, and we review factual findings for clear error. Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 808 (9th Cir.2011).

Appellants conceded at oral argument that the Navajo Nation has not retained the right to exclude nonmembers on U.S. Highway 160. Consequently, the highway is the equivalent of non-Indian fee land for jurisdictional purposes, and this case is *722 governed by Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). See Strate, 520 U.S. at 455-56, 117 S.Ct. 1404.

Under Strate, tribal jurisdiction is appropriate only if one of the two exceptions articulated in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), applies. Strate, 520 U.S. at 456, 117 S.Ct. 1404. The first Montana exception covers “the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 450 U.S. at 565, 101 S.Ct. 1245. This exception does not apply to this case, because the unsigned permit agreement — even if binding on Appellees — did not provide sufficient notice that EXC would be subject to tribal court jurisdiction on U.S. Highway 160 to be a basis for imputing consent. See Water Wheel, 642 F.3d at 818 (“For purposes of determining whether a consensual relationship exists under Montana’s first exception, consent may be established ‘expressly or by [the nonmember’s] actions.’ ” (citing Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008)) (alteration in original)). The second Montana exception allows tribes to exercise jurisdiction over nonmember conduct “when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U.S. at 566, 101 S.Ct. 1245. A tort suit arising out of a state highway accident does not implicate the second Montana exception. Strate, 520 U.S. at 459, 117 S.Ct. 1404.

For the foregoing reasons, we AFFIRM.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

Appellants, members of the Jensen/Johnson family, appeal the district court’s holding that the Navajo Nation tribal courts may not exercise adjudicatory jurisdiction over a highway accident that occurred on a stretch of U.S. Highway 160 — an Arizona state highway — within the exterior boundaries of the Navajo Reservation. We review determinations of tribal court jurisdiction de novo, and we review factual findings for clear error. Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 808 (9th Cir.2011).

Appellants conceded at oral argument that the Navajo Nation has not retained the right to exclude nonmembers on U.S. Highway 160. Consequently, the highway is the equivalent of non-Indian fee land for jurisdictional purposes, and this case is *722 governed by Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). See Strate, 520 U.S. at 455-56, 117 S.Ct. 1404.

Under Strate, tribal jurisdiction is appropriate only if one of the two exceptions articulated in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), applies. Strate, 520 U.S. at 456, 117 S.Ct. 1404. The first Montana exception covers “the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 450 U.S. at 565, 101 S.Ct. 1245. This exception does not apply to this case, because the unsigned permit agreement — even if binding on Appellees — did not provide sufficient notice that EXC would be subject to tribal court jurisdiction on U.S. Highway 160 to be a basis for imputing consent. See Water Wheel, 642 F.3d at 818 (“For purposes of determining whether a consensual relationship exists under Montana’s first exception, consent may be established ‘expressly or by [the nonmember’s] actions.’ ” (citing Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008)) (alteration in original)). The second Montana exception allows tribes to exercise jurisdiction over nonmember conduct “when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U.S. at 566, 101 S.Ct. 1245. A tort suit arising out of a state highway accident does not implicate the second Montana exception. Strate, 520 U.S. at 459, 117 S.Ct. 1404.

For the foregoing reasons, we AFFIRM.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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588 F. App'x 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/exc-inc-v-jamien-jensen-ca9-2014.

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