Tribal courts' power is limited

Judge says they can't give orders to county governments
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Tribal courts do not have authority over county and local governments, a Utah federal judge has declared in a first-of-its-kind opinion.

U.S. District Judge Bruce Jenkins ruled in a protracted lawsuit filed by former employees of Montezuma Creek Clinic in San Juan County. Fifteen initial plaintiffs claimed employees had been wrongfully dismissed and that Navajo patients were being denied service at the clinic, located on state-owned land within the boundaries of the Navajo Reservation.

The suit named both state and county defendants.

In his ruling, Jenkins refused to enforce orders issued by the Navajo Tribal Court reinstating workers at the San Juan County-operated clinic and instituting new policies.

The judge said the employees "fail to marshal the evidentiary facts" to support their contention that the tribal court could rule on their civil lawsuit against county officials.

Jenkins also said in his 261-page decision that counties and county officials have immunity from suits in Navajo Tribal Court. He signed an order last week dismissing the five-year-old suit.

This latest ruling follows previous decisions that limited the authority of tribal courts over states and their political subdivisions, said Jesse Trentadue, a Salt Lake City lawyer for San Juan County. He applauded the decision.

"If the tribal court had jurisdiction over counties, there would be no county government," Trentadue said.

Sandy attorney Susan Rose, who represents the former employees, said she will appeal the ruling.

The former employees had first taken their case to a Navajo tribal court, and a judge there in 1999 ordered the clinic to rehire the workers and correct the alleged discrimination. He later attempted to impose a fine of $10,000 a day for each day his orders were not carried out.

The next year, the employees asked the federal court in Utah to enforce the tribal order against the health clinic and its parent agency, the San Juan Health Service District. But U.S. District Judge Dale Kimball, who then had the case, declined.

Kimball ruled that a tribe lacked jurisdiction over an arm of the state. He cited legal precedent that said tribal courts historically "have not retained sovereign powers over states."

The case then landed in front of the 10th U.S. Circuit Court of Appeals, which sent the case back to the federal court in Salt Lake City for a review of whether the tribal judge had authority to rule on the claims of three of the plaintiffs. The case was assigned to Jenkins, who reaffirmed the lack of tribal authority over the state and all of its political subdivisions, including the health service district and the county that created it.

The three employees had been seeking $18 million in damages for themselves and $6 million for the clinic.

An expert on federal Indian law said Jenkins' ruling follows a trend that began in the late 1970s with the U.S. Supreme Court limiting tribal jurisdiction over non-American Indians.

That trend started with a decision that tribes' inherent sovereignty did not include the right to try non-Indians in criminal cases, said Kevin Worthen, dean of the J. Reuben Clark School of Law at Brigham Young University. Over the years, more opinions from appellate courts have limited the authority of a tribe over nonmembers, he said.

In the civil area, some questions have remained about tribal authority, said Worthen, who is not involved in the San Juan case. He said the answer can be complicated, depending on factors such as whether an act was committed on reservation or state land or whether an action affects the economic security or health and safety of the tribe.