April 24, 2016 Comments Off on Recent Amendment to the Navajo Preference in Employment Act
The Navajo Nation recently amended its Navajo Preference in Employment Act (the “NPEA”) to cover sexual harassment claims and to slightly shift the burden of proof in all cases. These amendments to the NPEA were passed by the Tribal Council on March 23, 2016 and signed into law by President Begaye on April 6, 2016.
Amendment to Cover Sexual Harassment Claims.
Prior to this amendment, employers doing business on the Navajo Nation were required to provide a work environment free of prejudice, intimidation, and harassment, but the NPEA had been interpreted to exclude employee-to-employee sexual harassment claims. Under the amendment, however, the statute clearly states that an employer’s obligation to provide a work environment free of harassment includes an obligation to provide an environment that is free of sexual harassment.
The amendment also states that, in all claims involving prejudice, intimidation, or harassment, the burden is on the employee to show a violation of the NPEA by a preponderance of the evidence. In other words, the employee must show that it is more likely than not that prejudice, intimidation, or harassment occurred.
Burden of Proof in All Other Claims.
The NPEA has also been changed to state that, when a case goes to a hearing, the burden of proof will be on the employee to show a violation by a preponderance of the evidence. Although the employee must carry this burden of proof at the hearing, the Tribal Council also stated that this change was intended to make the employee and employer share the burden equally.
The effect of this change is not entirely clear, but it seems intended to put more pressure on employees at the hearing stage, while maintaining considerable pressure on employers before the hearing. In other words, employers still carry the burden to show that they have not violated the NPEA before an employment claim has reached a hearing at the Navajo Nation Labor Commission. As such, employers still carry the burden of proof when an employee charge has been filed with the Office of Navajo Labor Relations, and when a complaint has been filed with the Navajo Nation Labor Commission, but before the hearing takes place. Apparently, the employee carries the burden of proof only if the hearing occurs.
The full effect of these amendments is not entirely clear, and they may not change much about the day-to-day relationship between employees and employers. Nonetheless, the changes are apparently intended to make clear that, at the hearing, employees must be prepared to back up their claims with evidence.
James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC. He is licensed as an attorney in Arizona, the Navajo Nation, and the Hopi tribal courts. For more information on the legal services offered by Mr. Griffith , please call (928) 779-6951 or toll free at (800) 514-6064 or use the “Contact Us” page.
 15 N.N.C. § 604(B)(9); Yazzie v. Navajo Sanitation, No. SC-CV-16-06, 2007 Navajo Sup. LEXIS 4 (Jul. 11, 2007). Title 15 of the Navajo Nation Code is available at this link, followed by a word search for “Title 15.”
 Navajo Nation Tribal Resolution CMA-13-16 (see Section Two on Amendments to Title 15 of the Navajo Nation Code).
 Id. (see Section Two on Amendments to Title 15 of the Navajo Nation Code).
 Id. (see Section Two on Amendments to Title 15 of the Navajo Nation Code).
 Id. at Section I(H).
March 30, 2014 Comments Off on Attorney James D. Griffith Now With a New Law Firm
Effective March 31, 2014, attorney James D. Griffith accepted a position as an Associate Attorney with Mangum, Wall, Stoops & Warden, P.L.L.C. located in Flagstaff, Arizona.
Mr. Griffith may be reached at Mangum, Wall, Stoops & Warden, P.L.L.C., Post Office Box 10, 100 North Eldon Street, Flagstaff, Arizona 86001, Tel.: (928) 779-6951 or (800) 514-6064. Website: www.mangumwall.com.
PROPOSED RULE UNDER NAGPRA ON DISPOSITION OF HUMAN REMAINS AND CULTURAL ARTIFACTS: Comment Period Open until December 30, 2013
October 29, 2013 Comments Off on PROPOSED RULE UNDER NAGPRA ON DISPOSITION OF HUMAN REMAINS AND CULTURAL ARTIFACTS: Comment Period Open until December 30, 2013
The U.S. Department of the Interior has published its final proposed rule on the disposition of “unclaimed cultural items” found on Federal lands after November 16, 1990. The term “unclaimed cultural items” is defined to include “human remains, funerary objects, sacred objects, or objects of cultural patrimony” excavated or removed after November 16, 1990. The comment period for this proposed rule is open until December 30, 2013.
The proposed rule (which amends 43 C.F.R. Part 10) requires public notice of a U.S. agency’s intent to reinter or otherwise dispose of unclaimed cultural items. Public notice must be given even if the agency intends to transfer the unclaimed cultural items to an Indian tribe or Native Hawaiian organization. The public notice must be published in general circulation newspaper in the area where the unclaimed cultural items were found and the area(s) where any potential claimants may now reside.
Under the Native American Graves Protection and Repatriation Act of 1990, or NAGPRA, the Secretary of the Interior is required to prepare and implement rules for the disposition of unclaimed cultural items found on Federal land. For purposes of NAGPRA, the term “Federal lands” does not include tribal land. The proposed rule was developed after a long period of consultation with Indian tribes, Native Hawaiian organizations, museums, and scientific organizations, which included public meetings in Albuquerque, New Mexico and Phoenix, Arizona.
To learn more and to review the proposed rule, see the notice of the proposed rule or the October 29, 2012 issue of the Federal Register. Comments on the rule can be submitted online here or by mail to Sherry Hutt, Manager, National NAGPRA Program, National Park Service, 1201 Eye Street N.W., 8th Floor, Washington, DC 20005.
We hope that this information helpful, but it should not be taken as legal advice or as establishing an attorney-client relationship. For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.
October 7, 2013 Comments Off on UNDERSTANDING THE TRIBAL COURT EXHAUSTION DOCTRINE
In a recent appellate case, the Fifth Circuit Court of Appeals followed well-established precedent when it affirmed a federal district court decision that recognized the Choctaw tribal court’s jurisdiction over a tribal member’s suit against a non-member of the tribe. The non-member (a non-Indian corporation) had filed suit in federal district court seeking to enjoin or stop the Choctaw tribal court from exercising jurisdiction over the tribal member’s tort case. But the district court concluded that the tribal court could hear the case because the non-member had entered into business dealings with a tribal member on tribal land.
Tribal Sovereignty and Tribal Court Jurisdiction
So, why must the tribal court be given the opportunity to exercise jurisdiction over the tort case against the non-member? The answer begins with tribal sovereignty. Long ago, in the famous Marshall trilogy of cases, the U.S. Supreme Court recognized the indigenous Indian nations as sovereign body politics with inherent powers to govern themselves although that power is subject to federal power. In other words, the recognized Indian tribes are sovereign nations, but Congress has the authority to limit or even eliminate that sovereignty. This principle of tribal sovereignty is fundamental to American Indian law. Although the concept has evolved and been eroded somewhat over time, tribal sovereignty is strongly defended by Indian tribes.
Based on the recognition of tribal sovereignty, two contrasting legal rules on tribal court jurisdiction have been established by the Supreme Court. The first rule states when tribal courts have exclusive jurisdiction (no federal or state court has jurisdiction). The second rule states when tribal courts have no jurisdiction. (Please note, however, that this discussion is limited to jurisdiction in civil case; tribal jurisdiction in criminal cases has been limited by Congress).
Contrasting Rules on Tribal Court Jurisdiction
In civil cases, the courts follow a general rule holding that tribal courts have exclusive jurisdiction if the claim (1) is asserted against an Indian, and (2) arose from an event or transaction that occurred in Indian country. Thus, if two tribal members are involved in an auto collision while driving on tribal land, and one member sues the other, the tribal court will have jurisdiction because the defendant is an Indian and the collision occurred on tribal land.
In contrast to the general rule, the Supreme Court has also held that tribal courts do not have jurisdiction if (1) the defendant is a non-Indian, and (2) the event or transaction occurred on non-Indian-owned, fee-title land within a reservation. Thus, if a tribal member and a non-Indian are involved in an auto collision while driving on privately owned land within the boundary of a reservation, the tribal court would not have jurisdiction. This second rule, known as the Montana rule, has two important exceptions that would result in tribal court jurisdiction (discussed in more detail below).
These two rules are fairly clear, but cases that fall in between these two rules are less clear, and that’s where the parties have room to argue. As a result, the federal courts were regularly asked to assert jurisdiction when the defendant was a non-Indian and the event occurred in Indian country.
Deference to Tribal Courts If Jurisdiction is in Question
The tribal court exhaustion doctrine was developed as a response to this jurisdictional gray area. The Supreme Court established this doctrine in 1985 when it held that federal courts cannot exercise jurisdiction—must allow a tribal court to rule on its own jurisdiction in the case—if (2) the defendant is a non-Indian, and (2) the claim arose on tribal land. Nonetheless, the doctrine also states that non-Indian defendants may file suit in federal court after all proceedings in tribal court have been exhausted.
Under this doctrine, tribal sovereignty is protected because the doctrine allows the tribal court to make its own determination regarding its jurisdiction in the case. But the rights of non-Indian defendants are also protected because the defendant can file a case in federal court after the tribal court hears the case. Thus, the tribal court exhaustion doctrine is a matter of deference to the tribal court.
The Montana Rule Exceptions and the Tribal Court Exhaustion Doctrine
The Montana rule has two important exceptions that provide tribal courts with an opportunity to exercise jurisdiction. As stated above, the Montana rule provides that tribal courts do not have jurisdiction if (1) the defendant is a non-Indian, and (2) the event or transaction occurred on land located within a reservation, but privately owned in fee title.
The exceptions to the Montana rule provide that a tribal court will have jurisdiction if (1) the non-Indian entered contractual or other relationships with the tribe or tribal members; or (2) the claim asserted effects the political, economic, or welfare interests of the tribe. Again, these exceptions protect tribal sovereignty, and the policy of tribal self-determination, by respecting the authority of the tribal court to determine its own jurisdiction.
Other Exceptions to the Tribal Court Exhaustion Doctrine
Two other exceptions to the tribal court exhaustion doctrine exist. Unlike the Montana exceptions, however, these exceptions give jurisdiction to the federal courts, rather than to tribal courts.
The first of these exceptions is federal preemption. When Congress enacts a law that regulates a field on a national basis, such as the Clean Water Act, the law preempts (or “trumps”) any state or local law that is inconsistent with the federal law. This preemption also applies to the tribes, and the federal courts can take jurisdiction without deferring to a tribal court.
Finally, the exhaustion doctrine will not apply if the tribal court does not allow the non-Indian defendant an opportunity to challenge the tribal court’s jurisdiction. Thus, a tribal court cannot simply declare its jurisdiction without considering the issue.
To some, the tribal court exhaustion doctrine may mean litigating in an unfamiliar court, but the doctrine is designed to respect and protect well-established principles of tribal sovereignty and is supported by the federal policy of tribal self-determination. From a legal perspective, the exhaustion doctrine and its deference to tribal courts has become a necessary aspect of managing the jurisdictional relationship between the courts of three sovereigns—tribal, federal, and state.
We hope that this discussion has been informative and helpful, but it should not be taken as legal advice or establishing an attorney-client relationship. For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.
 Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, No. 12-60668, 2013 U.S. App. LEXIS 20307 (5th Cir. Oct. 3, 2013).
 Johnson v. McIntosh, 21 U.S. 543, 573 (1823); Cherokee Nation v. Georgia, 30 U.S. 1, 16-17 (1831); Worcester v. Georgia, 31 U.S. 515, 559 (1832).
 Williams v. Lee, 358 U.S. 217 (1959). The term “Indian country” refers to Indian reservations, pueblos, dependent Indian communities, Indian allotments, and certain other areas that may be off-reservation but are close to and often largely populated by Indians. 18 U.S.C. § 1151.
 Montana v. United States, 450 U.S. 544 (1981). In these cases, the land involved is not held in trust by the federal government for the Indian tribe, but instead is owned privately and is subject to state law.
 Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 855-6 (1985).
 Id. 471 at 856-7; see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987) (holding that a tribal court finding of tribal jurisdiction can be challenged in federal court and that the federal court will review the jurisdictional issue de novo).
 Montana, 450 U.S. at 564-66.
 Nat’l Farmers Union, 471 U.S. at n.21.
 Id.; see also El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484-488 (1999).
September 30, 2013 Comments Off on DEVELOPING ENVIRONMENTAL LAW IN INDIAN COUNTRY
Professor Elizabeth Ann Kronk Warner recently posted a working paper, entitled Examining Tribal Environmental Law, that reviews the existing tribal laws governing environmental protection and provides some initial thoughts on further development of tribal environmental law. In this article, Professor Kronk (Director of the Tribal Law and Government Center at the University of Kansas School of Law) surveyed the publicly available tribal laws and found that just over one-half of all federally recognized Indian tribes have enacted an environmental law in at least one of four categories (air, water, solid waste, and environmental quality). She also found that only the Navajo Nation has enacted tribal environmental laws in all four categories.
After discussing the legal and jurisdictional context for tribal environmental law, and the results of her survey of existing tribal codes, Professor Kronk provides three initial thoughts on the development of tribal environmental laws. First, she suggests that, because some tribes may not be ready to enact fully developed environmental laws (due to financial considerations, small land bases, limited natural resources, or other tribal priorities), tribes may want to consider codifying their environmental ethic without implementing a full environmental code. At a minimum, codifying an environmental ethic will provide an important interim statement and emphasize the tribe’s intrinsic connection with the land, water, plants, and animals on tribal land and elsewhere.
Second, tribes may want to craft tribal environmental laws that will apply to non-Indians and non-member Indians who are acting on non-Indian lands within tribal land. Professor Kronk bases this suggestion directly on the Montana rule, which holds that Indian tribes do not have jurisdiction to regulate the activities of non-members who act on non-Indian land within a reservation’s boundary. Notably, however, the Montana rule has two exceptions that will permit the tribe to regulate non-members acting on non-Indian fee land if: (1) the non-member has significant commercial dealings with the tribe or tribal members; or (2) the non-member’s activities threaten the political, economic, or welfare interests of the tribe. Professor Kronk contends that a tribe can obtain jurisdiction over the non-member by enacting tribal environmental laws requiring that permits for the discharge of pollution affecting tribal land be issued only if the non-member agrees to tribal jurisdiction (under the first exception to the Montana rule). Further, she suggests that tribes can invoke the second exception by drafting tribal environmental laws designed to protect the health and welfare interests of the tribal community.
Third, Professor Kronk suggests that tribes may want to consider tribal customs and spirituality when developing tribal environmental laws. In so doing, each tribe’s environmental laws will reflect the environmental ethic of that tribe. Federal environmental laws do not regulate to protect cultural and religious interests, and thus, federal law does not preempt or prevent Indian tribes from exercising their sovereignty and regulating for such purposes. Thus, a tribe could enact an environmental law to protect a cultural or sacred site that is within the boundaries of its reservation.
Finally, Professor Kronk contends that, although many reasons exist for tribes to adopt environmental laws, tribe may want to consider adopting environmental laws for two main reasons. First, tribal environmental laws will promote both tribal sovereignty and tribal environmental ethics. Second, tribal environmental laws are necessary because of current environmental issues and the development of natural resources.
The research of Professor Kronk and others on tribal environmental law seems particularly relevant today as tribes seek to develop natural resources and green energy as well as protect tribal environmental, cultural, and religious interests. A copy of this paper can be downloaded from the Social Science Research Network.
We hope that this summary has been informative and helpful. For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.
 Elizabeth Ann Kronk Warner, Examining Tribal Environmental Law (Sep. 7, 2013) (unpublished working paper), available at http://ssrn.com/abstract=2322322.
 Montana v. United States, 450 U.S. 544, 564-66 (1981).
September 22, 2013 Comments Off on JURIES, VENUE, AND THE MAJOR CRIMES ACT: RECENT SCHOLARSHIP
A recent comment published in the Wyoming Law Review argues that federal law on jury pools and venue, when applied to Indian country criminal cases, is not consistent with Major Crimes Act. The Major Crimes Act gives the federal courts jurisdiction over most felonies occurring on reservation land and was upheld in United States v. Kagama, 118 U.S. 735 (1886). The Major Crimes Act is unique because it creates jurisdictional limitations based on geography (within Indian country) and racial-political identity (Indian v. non-Indian).
First, the author shows that the location—or vicinage—of a criminal case is so important in United States jurisprudence that the Founding Fathers included it in the Constitution. Under Article III and the Sixth Amendment, criminal cases must be tried in the “district wherein the crime shall have been committed.” In addition, the Federal Rules of Criminal Procedure call for criminal cases to be heard in a location that is convenient for the defendant, victims, witnesses, and the “prompt administration of justice.” The purpose of these rules is to promote public participation and scrutiny of the prosecutor and the legal process. The author then argues that, in light of the unique jurisdictional limitations of the Major Crimes Act, the victim of the crime should be seen as the reservation and the surrounding community and that the federal prosecutor is representing this specific community of Indians and local non-Indians.
Second, the author reviews the federal jury selection process. This process is designed to select a jury from a representative cross-section of the district or division where the court is situated (usually a state or a large portion of a state). The author then argues that the federal jury selection process is inconsistent with the Major Crimes Act because most crimes prosecuted under the Act occur in areas of a district or division that are more densely populated by Indians—raising a possible fairness issue under the Sixth Amendment. By contrast, in state-level cases, the venire (the pool from which the jury is selected) is drawn from citizens within each county. Since offenses under the Major Crimes Act would otherwise be prosecuted under state law, the author suggests this state-level contrast further supports an inconsistency between the federal jury selection process and the Major Crimes Act.
The author concludes by suggesting a number of changes intended to overcome these inconsistencies. One suggestion is that federal district courts hearing cases under the Major Crimes Act hold court in locations closer to the specific community affected by the crime. Under the Tribal Law and Order Act of 2010, federal prosecutors and courts are required to at least attempt to conduct trials and other proceedings in Indian country. Another suggestion is to improve the process of identifying jury venires in Major Crimes Act cases so that the venire is a more representative cross-section of the affected community. Possible solutions include identifying jury pools from federal income tax filings, tribal voter registration rolls, tribal membership rolls, or other public records related to Indian country.
For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.
INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS, 2011-2012: Annual Report to Congress by the U.S. Department of Justice
July 4, 2013 Comments Off on INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS, 2011-2012: Annual Report to Congress by the U.S. Department of Justice
The U.S. Department of Justice (DOJ) recently issued its first annual report on Indian Country Investigations and Prosecutions as required by the Tribal Law and Order Act of 2010. The Tribal Law and Order Act (TLOA) is broad legislation designed to improve and enhance law enforcement in Indian country. Among many other measures to improve law enforcement, the TLOA seeks to hold federal agencies accountable by requiring the Department of Justice to file an annual report with Congress on criminal investigations and prosecutions in Indian country.
The DOJ’s report, which covers only criminal matters reported to federal (and not tribal or state) agencies, reflects the increased priority placed on law enforcement efforts in Indian country and provides data showing an increase in the criminal caseload of federal agencies of 54% between 2009 and 2012. The report’s executive summary sets forth several major points based on the data:
- The FBI referred a “substantial majority” of Indian country criminal investigations to the U.S. Attorney’s Office (USAO) for prosecution.
- The USAO prosecuted a “substantial majority” of the Indian country criminal cases it opened.
- When the FBI did not refer a case to the USAO (but instead closed its investigation), the most common reason was the FBI’s conclusion that no federal crime had occurred.
- When the FBI investigated a death, but closed the investigation without a referral to the USAO for prosecution, the primary reason was a conclusion that the death was due to an accident, suicide, or natural causes.
- In 2011, the USAO declined to prosecute just under 37% of Indian country criminal cases submitted to it for prosecution. In 2012, the USAO declined to prosecute approximately 31% of Indian country cases submitted. The two most common reasons for declining to prosecute were insufficient evidence (61% of cases in 2011 and 52% in 2012) and referral to another prosecuting authority (19% in 2011 and 24% in 2012).
A copy of the DOJ’s report is available here.
For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.
 Other steps to improve law enforcement under the TLOA include increased training and funding for Bureau of Indian Affairs and tribal law enforcement officers, improved communication and coordination of efforts between the U.S. Attorney’s Office and tribal officials, increased sentencing authority granted to tribal courts, deputization of tribal prosecutors that allows prosecution in federal court, and prevention and treatment programs focusing on at-risk youth and drug and alcohol problems.