EMPLOYER COMPLIANCE WITH THE NAVAJO PREFERENCE IN EMPLOYMENT ACT: Part 3: The Complaint Process and Litigation under the NPEA
May 5, 2017 Comments Off on EMPLOYER COMPLIANCE WITH THE NAVAJO PREFERENCE IN EMPLOYMENT ACT: Part 3: The Complaint Process and Litigation under the NPEA
The purpose of the Navajo Preference in Employment Act (“NPEA”) is to promote economic development and jobs for Navajos on tribal land. Most employers on the Navajo Nation follow the requirements of the NPEA carefully, but compliance with the NPEA can involve considerable time and effort. This post is the third of three overviews of key aspects of the NPEA, and it focuses on complaints filed with the Office of Navajo Labor Relations and litigation before the Navajo Nation Labor Commission. Part 1 discussed the hiring process under the NPEA, and Part 2 discussed adverse action, just cause, and prejudice, intimidation, and harassment in the workplace.
These overviews provide only a brief introduction to some of the key rules that employers on the Navajo Nation must comply with under the NPEA. Some employers on the Navajo Nation may also need to comply with federal employment laws in addition to the NPEA. If you have questions about specific issues or a specific employment situation, we recommend that you seek legal advice.
THE COMPLAINT PROCESS AND LITIGATION UNDER THE NPEA
The NPEA follows a two-step process for resolving employment-related disputes and establishes two different governmental agencies—one for each step in the process. The Office of Navajo Labor Relations (“ONLR”) is responsible for processing “charges” filed by employees against employers. The Navajo Nation Labor Commission (“Labor Commission”) is responsible for processing disputes that were not resolved by ONLR, but its procedure is more like formal litigation in a court. Overall, this process for dispute resolution requires the employee and the employer to meet certain deadlines, and if the employee or employer do not meet the deadlines, a claim or a defense can be lost. The starting point for these deadlines is the event or situation that the employee believes violated the NPEA or affects his or her employment status.
ONLR and Employee Charges
When an event occurs that relates to an employment relationship or a workplace, and an employee believes that the event negatively affects his or her employment, the employee has one year from the date of the event to file a charge with ONLR. If the situation involves a series of events, the employee has one year from the last event to file a charge with ONLR. The employee is not required to complete the employer’s grievance process before filing with ONLR.
The employee’s charge must raise all issues or potential NPEA violations that the employee can claim within the one-year period. An employee can amend his or her charge to add new issues or potential violations if asserted within the one-year period, but if not raised at the ONLR stage within the one-year period, the employee may not assert them at all.
Once the employee has filed a charge, ONLR must give written notification to the employer and has six months to investigate the charge. ONLR is authorized to assist the employee and employer in resolving the dispute. Typically, however, ONLR investigates the charge, and the employer or an attorney acting for the employer responds to a request from ONLR for information and documents.
If the case cannot be resolved, ONLR’s investigation will result in one of four possible outcomes, but regardless of the outcome, the employee then gets the right to file a complaint with the Labor Commission. The possible outcomes include: (a) dismissal of the charge without issuance of a right-to-sue letter; (b) issuance of a probable cause notice and a right-to-sue letter; (c) issuance of a right-to-sue letter, but based only on ONLR’s inability to complete the investigation within six months; or (d) ONLR does nothing and a right-to-sue letter is issued.
Again, no matter which of the four outcomes occurs, the employee then has the right to file a complaint with the Labor Commission—even if no right-to-sue letter is issued. ONLR’s dismissal without a right-to-sue letter is not common, but may indicate that the employee’s case is weak.
The Labor Commission and Hearings on Alleged Violations of the NPEA
After the ONLR process is completed, the employee may file a complaint with the Labor Commission. The complaint must be filed within 360 days after the date the employee’s charge was filed with ONLR. The 360-day period does not run from the date a right-to-sue letter is issued or the date the process at ONLR is completed, but instead starts on the day the ONLR charge is filed. The 360-day period can be extended by the Labor Commission if the employee can show unusual circumstances that delayed his or her filing with the Labor Commission.
The Labor Commission has sixty days from the date the complaint is filed to issue a notice of hearing. The hearing does not need to take place within sixty days, but the notice setting the date and time for the hearing must be issued within sixty days. The notice of hearing and a copy of the complaint are then sent to the employer by certified mail.
The employer must file an answer within twenty days of receipt of the complaint and, in certain limited situations, may file a motion to dismiss. We recommend that an employer hire an attorney or advocate who is admitted to practice law in the Navajo Nation to represent him or her when responding to a complaint. Under Navajo case law, the employer must hire an attorney or advocate admitted in the Navajo Nation if the employer is a business entity.
Pre-hearing activities, such as depositions, are permitted but discouraged by the Labor Commission. In other words, the Labor Commission prefers that the employee and employer move ahead with the hearing rather than time-consuming depositions and other fact investigations. About two weeks before the hearing, the parties must file copies of any documents they intend to use at the hearing and a list of witnesses they intend to call at the hearing.
The hearing itself is a formal meeting of the Labor Commission. At least three commissioners must be present for a quorum, and those commissioners will listen to the case presented by each party and decide the case. Even if represented by an attorney or advocate, both the employee and the employer (or an authorized employee of the employer) must attend the hearing in person. If either the employee or employer do not attend the hearing, the Labor Commission will rule in against of the side that did not attend.
On the day of the hearing, the commissioners often ask the parties to discuss settlement. If a settlement is reached, the parties return to the hearing room and inform the commissioners of the terms of the settlement. The commissioners may refuse to accept the settlement if they do not consider the terms reasonable. If a settlement is not reached, the hearing goes forward and follows a format that is similar to a court case.
In the hearing, each side has an opportunity to take testimony from witnesses, present evidence, and cross-examine the other side’s witnesses. The burden of proof is shared equally by the employee and the employer. The employee must prove a violation of the NPEA by a “preponderance,” which means it must be “more likely than not” that the employer violated the NPEA. But the employer then has the burden of proof to present evidence that overcomes the employee’s evidence.
After each side has presented its case, the commissioners will consider all of the evidence presented and decide whether the employer is liable for a violation of the NPEA. This decision, however, relates only to whether the employer has violated the NPEA and does not determine the “remedy” or dollar amount that the employer must pay to the employee. Instead, the Labor Commission will set another hearing to consider the remedy or amount that will appropriately compensate the employee.
Once it has determined the remedy or dollar amount that should be paid, the Labor Commission will enter a judgment. A party may appeal the judgment to the Navajo Nation Supreme Court within ten days of receipt, but if it is not appealed, the judgment becomes final. If a final judgment against an employer is not paid or “satisfied,” the employee may file a case in the Navajo Nation District Court to collect the amount due.
Complying with the NPEA can take a great deal of time and effort, but the risk of financial liability can be reduced by focusing on the employer’s key legal obligations. This third of three articles provides only a brief overview of the complaint and litigation process under the NPEA, and employers can still face difficult situations and may need assistance sorting through facts, policies, legal obligations. I and other attorneys at Mangum, Wall, Stoops & Warden have the knowledge and expertise to advise employers in those situations.
If you have any questions about this overview, or need assistance with an employment matter under the NPEA, please contact me at Mangum, Wall, Stoops & Warden, PLLC by using the contact information provided below. I can also be available to give presentations on the NPEA.
James D. Griffith is an Associate Attorney at Mangum, Wall, Stoops & Warden, PLLC. He is licensed as an attorney in Arizona, the Navajo Nation, and the Hopi tribal courts. For information on the legal services offered by Mr. Griffith, please call (928) 779-6951 or toll free at (800) 514-6064 or through the “Contact Us” page at the website for Mangum, Wall, Stoops & Warden.
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).
December 27, 2015 Comments Off on Native American Business Incubator Network Promotes Indian-Owned Businesses
Native American Business Incubator Network (“NABIN”) assists Indian-owned businesses grow and prosper. According to recent census data, the number of Indian-owned businesses grew by 15% between 2007 and 2012. See Mark Fogerty, Indian-Owned Business Grew by 15%, Indian Country Today Media Network (Dec. 24, 2015). NABIN helps promote this trend in Indian-owned businesses by helping Native American entrepreneurs and businesses with training, business counseling, mentorship, and other support. If you’re a Native American entrepreneur or businesses owner, NABIN may be able to assist you with overcoming the challenges involved in starting and growing your business. See NABIN on Facebook here.
Update: KJZZ recently aired a story on the challenges faced by Native American entrepreneurs and how NABIN has helped, but also reports that NABIN is about to lose its grant funding and is seeking other funding. See Native American Entrepreneurs Face Unexpected Challenges.
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. He can assist business clients with contracts, regulatory issues, DBE certification, Indian arts and crafts protection, and other matters.
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).