Sorting Out Civil Jurisdiction in Indian Country after Plains Commerce Bank: State Courts and the Judicial Sovereignty of the Navajo Nation

American Indian Law Review, Vol. 33, p. 385, 2009

72 Pages Posted: 17 Nov 2009  

Dale Beck Furnish

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: 2009

Abstract

Navajo Tribal Courts Exercise Extensive Civil Jurisdiction ~ Many commentators feel that recent U.S. Supreme Court decisions curtail tribal courts’ jurisdiction over civil lawsuits, even while Congress and the federal Executive encourage Indian autonomy. Plains Commerce Bank v. Long Family Land & Cattle Co. (June, 2008) is the latest in that line of decisions. The article begins by assessing whether the case may have extended the U.S. Supreme Court limitations, and concludes that Plains Commerce Bank wastes its precedent in an extremely narrow holding, changing nothing in existing doctrine. The article then analyzes that Supreme Court doctrine in the context of the Navajo Nation’s tribal courts. Since 1958 the Navajo Nation has developed a strong court system. Prior to 1958, Arizona, New Mexico and Utah state courts exercised jurisdiction over all civil controversies involving Navajo Country. The advent of the Navajo (and other tribes’) courts has given rise to cases confronting the issue of when the states must defer their civil jurisdiction to the tribal courts. The three state courts have differing approaches to what is still a relatively new problem. Notably, Arizona’s Supreme Court has handed down some of the most extreme precedents against the civil jurisdiction of tribal courts, while New Mexico’s Supreme Court takes a balanced approach more considerate of tribal judicial sovereignty. The Navajo Nation Supreme Court, however, has a surer touch than the state courts in dealing with the issue. A series of Navajo opinions beginning in 2003 sets out a reasoned doctrine of assertive tribal court jurisdiction over civil lawsuits, carefully working within the U.S. Supreme Court precedents. The article concludes that the Navajo Nation’s tribal courts will develop a stronger and stronger role in the resolution of civil controversies in the three states its reservation touches, undeterred by anything that the U.S. Supreme Court is likely to decide.

Keywords: Indian law, Navajo Nation, Judicial Sovereignty

Suggested Citation

Furnish, Dale Beck, Sorting Out Civil Jurisdiction in Indian Country after Plains Commerce Bank: State Courts and the Judicial Sovereignty of the Navajo Nation (2009). American Indian Law Review, Vol. 33, p. 385, 2009. Available at SSRN: https://ssrn.com/abstract=1501342

Dale Beck Furnish (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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