EXC Inc. v. Jensen – Turtle Talk

1. Whether federal courts are free to ignore congressionally confirmed Indian treaty rights that impliedly reserve tribal jurisdiction over nonmember conduct within an Indian reservation, thereby effecting an impermissible judicial abrogation of those treaty rights.

2. Whether federal courts may disregard the Supreme Court’s multifactor analysis for determining the status of a roadway existing on tribal trust land when deciding if an Indian tribe has inherent sovereign jurisdiction to adjudicate a collision occurring on that roadway between a tribally regulated tour bus and a passenger vehicle carrying tribal members.

3. Whether federal courts may decline to apply the consensual relationship exception of Montana v. United States, 450 U.S. 544 (1981), because nonmember conduct occurred on land deemed to be the equivalent of non-Indian fee land, where (a) the Supreme Court has indicated that Montana’s consensual relationship exception can justify tribal jurisdiction over nonmember conduct occurring on non-Indian fee land or its equivalent, and (b) there exists a consensual relationship of the qualifying kind between the tribe and the nonmembers.

4. Whether federal courts may deny that an Indian tribe has inherent civil jurisdiction, pursuant to the second Montana exception, over nonmembers’ commercial touring of tribal lands that results in a fatal tour bus/auto collision where (a) the nonmembers’ conduct implicates the tribe’s interests in governing itself, controlling internal relations, and superintending land use, and (b) the impact of the commercial touring activity, unconstrained by tribal regulatory authority, is demonstrably serious and imperils the tribe’s sovereign interests.

Lower court materials here.

Ninth Circuit Holds Strate Governs Navajo Civil Jurisdiction over Nonmembers on State Highways

December 29, 2014December 27, 2014Matthew L.M. Fletcher3 Comments

Here is the unpublished memorandum. An excerpt:

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 governed by Strate v. A-1 Contractors, 520 U.S. 438 (1997). See Strate, 520 U.S. at 455-56.

Briefs and oral argument materials here.

Federal district court materials here.

Tribal court materials here.