BABBIT FORD, INC., PETITIONER V. NAVAJO INDIAN TRIBE, Etc., ET AL.

   No. 83-610

   In the Supreme Court of the United States

   October Term, 1983

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Brief for the United States as Amicus Curiae Supporting Respondents

            TABLE OF CONTENTS
   Statement
   Argument
   Conclusion

                          QUESTION PRESENTED

   Whether the Navajo Tribe may (i) bar repossession of personal
property of members of the Tribe located on Reservation land without
the written consent of the purchaser or an order of the Navajo Tribal
Court, and (ii) provide that any person who violates this prohibition
is liable in damages.

   This brief is filed in response to the Court's invitation.

                               STATEMENT

   1. Petitioner Babbit Ford is an Arizona corporation that owns and
operates car dealerships in Page and Flagstaff, Arizona.  Each
dealership is located in close proximity to the Navajo Indian
Reservation, and each derives a substantial portion of its income from
sales to members of the Navajo Tribe.  Pet. App. 3.  Petitioner states
(Pet. 3) that it sells approximately 70 vehicles per month --
approximately 50% of of its total sales -- to persons it believes to
be residents of the Navajo Reservation.  The sales contracts with
Indians are entered into at the dealership, and delivery of the
automobiles occurs off the Reservation.  The majority of these
transactions involve loan contracts that apparently provide for
repossession by petitioner upon default by the purchaser.  Pet. App.
3.  Arizona law provides that "((u)less otherwise agreed," a secured
party "has on default the right to take possession of the collateral,"
and "(i)n taking possession a secured party may proceed without
judical process if this can be done without breach of the peace"
(Ariz. Rev. Stat. Ann. Section 44-3149 (1967)).

   However, repossession of vehicles and other personnel property from
members of the Navajo Tribe on the Navajo Reservation is regulated by
the Navajo Tribal Code (N.T.C.).  A section of that Code in effect
since 1968 provides that "(t)he personal property of Navajo Indians
shall not be taken from land subject to the jurisdiction of the Navajo
Tribe under the procedures of repossession" except with the written
consent of the purchaser secured at the time repossession is sought,
or if the Indian refuses to give consent, "by order of a Tribal Court
of the Navajo Tribe in an appropriate legal proceeding." 7 N.T.C.
Section 607;  Pet. App. 3.  On January 29, 1982, the Judges of the
Navajo Tribal Courts, with the approval of the Chief Justice of the
Tribe, adopted a rule to implement the latter provision.  /1/ The
preamble to the rule states that "(t)he application of (Section 607)
to non-Indian creditors has been the occasion of a great deal of
litigation, most of which has been unncessary";  that the extension of
secured credit to Navajo Nation residents is "beneficial to the
residents of the Navajo Nation";  and that "the protection of the
rights of extenders of credit as to property used as security and the
protection of the rights of consumers within the Navajo Nation"
required the courts to adopt a rule for repossession which is "simple,
speedy and fair."

   The rule provides for the remedy of repossession to be sought by
means of a "verified petition," which "may be in standardized form" or
"may be informal or drafted by a creditor without counsel" (Tribal Ct.
R. Section 5(a) (1982)).  The petition must recite the name and
address of the person from whom repossession is sought;  identify the
property in a manner that will facilitate its seizure;  describe the
agreement and breach of the agreement that give rise to a right of
repossession;  state the balance due;  and identify the "exact relief
or remedy which is being sought (e.g., repossession by the creditor,
repossession by the police, delivery into court, damages, etc.)."
Section 5(b).  The clerk of the court then must issue an order to the
person possessing the property directing him to appear and show good
legal grounds why the property should not be repossessed.  A hearing
is to be held no less than 5 nor more than 10 days after the order
issues, subject to limited continuances.  Sections 6, 7.  /2/

   The hearing is to be informal, and the only question to be
considered is whether the property is security under the agreement and
whether there has been a breach so as to justify repossession.  Where
the right to repossess is addressed by the contract between the
creditor and the tribal member, "the court shall apply the terms of
that contract unless they are unconscionable or contrary to law."
Section 4.  The court's decision must be rendered within 24 hours of
the hearing, and if the petition for repossession is granted, the
court's order may be executed by the petitioner or a Navajo Police
Officer.  Section 8.

   Section 608 of the Navajo Tribal Code provides that any person who
willfully violates Section 607 -- i.e., who resorts to self-help
repossession without either the written consent of the tribal member
or order of the Tribal Court -- may be excluded from land subject to
the jurisdiction of the Tribe.  In addition, any business whose
employees are found to be in willful violation may be denied the
privilege of doing business on land subject to the jurisdiction of the
Tribe.  7 N.T.C. Section 608.  Any person or business who violates the
provision also "is deemed to have breached the peace of the lands
under the jurisdiction of the Navajo Tribe, and shall be civilly
liable to the purchaser for any loss caused" (7 N.T.C. Section 609;
Pet. App. 4 n.1).  If the personal property repossessed consists of
consumer goods, the purchaser has a right to recover an amount not
less than the credit service charge plus 10% of the principal amount
of the debt or the time price Section 609.  The latter measure of
differential plus 10% of the cash price.  7 N.T.C. the minimum amount
of damages available is identical to that in Section 9-507 (1) of the
Uniform Commercial Code (U.C.C.) (1971) for situations in which a
secured creditor does not follow applicable procedures for protecting
his interest in the collateral.  That measure of damages in the U.C.C.
in turn has been adopted by Arizona (Ariz. Rev. Stat. Ann. Section
44-3153 (1967)) and by New Mexico, the other State in which the Navajo
Reservation principally lies (N.M. Stat. Ann. Section 55-9-507
(1978)).

   2.a. Despite the explicit prohibition in the Navajo Tribal Code,
petitioner apparently for some time has repossessed approximately 10
vehicles per month belonging to members of the Navajo Tribe and
located on the Reservation, without obtaining either the written
consent of the owner of the property or an order from the Navajo
Tribal Court authorizing the repossession.  Pet. 3;  Pet. App. 3, 26
n.2.  /3/ In 1980, petitioner's agents entered the Reservation and
repossessed vehicles belonging to Tom and Lorraine Sellers and Barney
and Alice Joe, members of the Navajo Tribe, without complying with the
requirements in Section 607 of the Tribal Code.  The Sellers and Joes
brought an action for damages in Navajo Tribal Court pursuant to
Section 609 of the Tribal Code, and the court awarded damages in the
amount of $476.75 to the Sellers and $4,455.75 to the Joes.  The
Navajo Court of Appeals affirmed the damage awards.  Pet. App. 4 and
n.2.

   b. Petitioner then brought this action in the United States
District Court for the District of Arizona challenging the sections of
the Tribal Code that govern repossession from Indians on the
Reservation and provide civil remedies for violations.  The district
court held that the Tribe had inherent sovereign power to apply its
prohibition against self-help repossession to petitioner and tht this
power was not divested by the Treaties between the United States and
the Navajo Nation (Pet. App. 36-47).  However, the court held that the
liquidated damages provision in 7 N.T.C. Section 609 is invalid
insofar as it applies to repossessions that were justified and would
have been authorized by the Tribal Court if the creditor had resorted
to that process, because, in the court's view, the damage remedy
"overestimates" the value of the procedural protection in such
circumstances (Pet. App. 48-50).

   c. The court of appeals affirmed the district court's holding that
the Tribe retained its sovereign power to apply its repossession
statute to a non-Indian who entered onto the Reservation, but it
reversed the district court's holding invalidating the provision in 7
N.T.C. Section 609 for recovery of a minimum amount of civil damages
(Pet. App. 1-24).

                               ARGUMENT

   The decision of the court of appeals is correct and does not
conflict with any decision of this Court, another court of appeals, or
a state court.  Nor does this case raise any issue of general
importance warranting further review.

   1. As an initial matter, it is important to put the issues
presented in their proper perspective, because petitioner has greatly
exaggerated the nature of the Tribe's action here.

   a. The Navajo Tribe has not impaired or "unilaterally altered" the
obligations of its members under contracts entered into with
petitioner or erected a barrier behind which tribal members may hide
from the contractual responsibilities, as petitioner repeatedly
suggests (Pet. 9, 14-16, 19-20, 21, 22).  To the contrary, the Tribal
Court rule implementing Section 607 of the Tribal Code makes clear
that the substantive terms of the member's contract are to be given
effect and that where the contract addresses the remedy of
repossession, the court shall not deny that remedy except in
circumstances that are unconscionable or contrary to law.  Tribal Ct.
R. Sections 4, 8.  /4/ Thus, the Navajo Tribal Code explicitly
preserves the right of a creditor to retake possession of collateral
upon default, and simply establishes a procedure for exercising that
right on the Reservation.  Moreover, the provisions of the Tribal
Court rule that we have described above (see pages 2-4, supra) on
their face provide a fully adequate and expeditious means by which
petitioner can effect the repossession of the vehicle of a defaulting
tribal member on the Navajo Reservation if the member does not give
his written consent.  Petitioner has not shown that these provisions
are inadequate in practice, and indeed there is no indication that
petitioner has ever sought to invoke them.

   The established procedures have, however, been widely utilized by
other creditors.  We have been informed by the Department of Justice
of the Navajo Nation that 353 petitions for repossession were disposed
of by the Tribal Courts between October 1981 and September 1982 and
that an additional 375 petitions were disposed of during the year
ending September 30, 1983.  We have been further informed by the
Navajo Department of Justice that resort to tribal procedures in this
fashion often prompts an arrangement by which the tribal member can
become current in his payments, thereby serving the interests of
debtor and creditor alike.  It may also be that repossessions have
been accomplished without resort to judicial process by obtaining the
written consent of the purchaser, as also is permitted by the Tribal
Code.  There is no reason to believe that petitioner will suffer any
substantial hardship if it, too, follows the procedures that have been
prescribed by the Tribe for the recapture of property sold to tribal
members who have failed to make payment.

   Petitioner does not and could not maintain that if it sold a
vehicle to a person who resided in or moved to another State in which
the legislature had enacted a similar statute barring nonconsensual
self-help repossessions, such as Wisconsin (Wis. Stat. Ann. Sections
425.206, 425.305 (West 1974 & Cum. Supp. 1983);  see Br. in Opp. 5),
either the terms of petitioner's individual contracts or Arizona law
would give it a right to violate that State's law and retake
possession of the vehicle through the exercise of self-help.  There is
no reason for a different result as regards a vehicle within the
Navajo Reservation and belonging to a member of the Navajo Tribe.

   Moreover, in this case, the relevant provision of the Tribal Code
has been in effect since 1968 (Pet. App. 3), presumably long before
petitioner entered into any of its currently outstanding contracts
with tribal members.  Those contracts necessarily were entered into
against the background of the Tribal Code -- which therefore must be
regarded as part of the contracts insofar as they contemplate
repossession on the Reservation (Home Building & Loan Ass'n v.
Blaisdell, 290 U.S. 398 429-430 (1934)) -- and there accordingly is
nothing unfair about application of that preexisting prohibition to
the contracts.  See e.g., Texaco, Inc. v Short, 454 U.S. 516, 531
(1982).  Certainly the fact that petitioner may have regularly
repossessed vehicles in disregard of the Tribal Code for a number of
years prior to 1981 did not give it a prescriptive right to continue
to do so.

   In any event, the result would not be otherwise even if the Tribe
had enacted the special repossession procedures after the contacts in
question had been entered into.  "Contractual arrangements remain
subject to subsequent legislation by the presiding sovereign." Merrion
v. Jicarilla Apache Tribe, 445 U.S. 130, 147 (1982).  See also Home
Building & Loan Ass'n v. Blaisdell, supra.  In this case, the
"presiding sovereign" as regards matters on the Navajo Reservation is
the Navajo Tribe, and the Tribe's statute that reasonably regulates
the procedures for pursuing the remedy of repossession minimially
burdens contractual rights and clearly may be applied to existing
contracts.  Texaco, Inc. v Short, 454 U.S. at 531;  United States
Trust Co. v. New Jersey, 431 U.S. 1, 20-21 n.17 (1977);  City of El
Paso v. Simmons, 379 U.S. 497, 503-509 (1965).  In Merrion v.
Jicarilla Apache Tribe, the Court declined to find that the Tribe had
divested itself of its sovereign power to tax by entering into lease
contracts with non-Indians that permitted them to enter onto tribal
lands and extract oil and gas.  455 U.S. at 146-148.  A fortiori, as
the court of appeals held (Pet. App. 10-11), the contracts entered
into by individual Indians did not divest the Navajo Tribe of its
sovereign power to maintain the peace, protect the health and welfare
of its members, and exclude non-Indians from its Reservation.
Petitioner's rights to enter the Reservation at all times remained
subject to restriction by the Tribe, and petitioner "cannot remove
them from the power of the (Tribe) by making a contract about them."
Energy Reserves Group, Inc. v. Kansas Power & Light Co., No. 81-1370
(Jan. 24, 1983), slip op. 10 (quoting Hudson County Water Co. v.
McCarter, 209 U.S. 349, 357 (1908)).

   b. Petitioner also considerably overstates the supposed conflict
between the provisions of the Tribal Code and those of Arizona law and
the U.C.C. upon which it relies.  Under Arizona law, as under the
U.C.C. (Section 9-503) and the law of most states, repossession
without resort to judicial process is permissible only "if this can be
done without breach of the peace" (Ariz. Rev. Stat. Ann. Section
44-3149 (1967)).  Thus, as petitioner concedes (Pet. 21), neither
Arizona law nor petitioner's individual contracts grant it an absolute
right to repossess a vehicle by self-help, and a violation of the
breach-of-the-peace limitation would render the repossession invalid
and would subject petitioner to liability for damages in the same
amount that is available under the Tribal Code (Ariz. Rev. Stat. Ann.
Section 44-3153 (1967)).

   Nor has the breach-of-the-peace limitation been construed narrowly
to include only instances of actual violence, as petitioner appears to
contend (see Pet. 20-21, 22).  It ordinarily is sufficient if the
creditor's conduct carries with it the potential for a disturbance,
and in many jurisdictions the creditor may not repossess the property
if the purchaser or a third party objects.  See generally Mikolajczyk,
Breach of Peace and Section 9-503 of the Uniform Commercial Code -- A
Modern Definition for an Ancient Restriction, 82 Dick. L. Rev. 351,
335-370 (1977);  Note, Commercial Law 22 Ariz. L. Rev. 109, 110-111
(1980).  See, e.g., Rogers v. Allis-Chalmers Credit Corp., 679 F.2d
138, 141 (8th Cir. 1982);  Wade v. Ford Motor Credit Co., 8 Kan. App.
2d 737, 668 P.2d 183, 187-188 (1983);  Deavers v. Standridge, 144 Ga.
App. 673, 242 S.E.2d 331, 333 (1978).  Indeed, in Arizona, whether a
breach of the peace has occurred has been held to turn upon whether
the creditor entered upon the premises of the debtor and whether the
debtor or a third party acting on his behalf consented to the entry
and repossession.  Walker v. Walthall, 121 Airz. 121, 122, 588 P.2d
863, 864 (Ct. App. 1978).

   The Navajo Tribal Code implements these principles.  Like Arizona
law and the U.C.C., it does not require resort to judicial process in
all circumstances.  Repossession is permissible with the written
consent of the purchaser, in which event the written consent
constitutes an objective indication that there is no dispute between
the parties and resulting potential for a disturbance.  In this sense,
the Tribe's consent requirement is consistent with and indeed furthers
the principle that repossession is barred under the
breach-of-the-peace limitation if the purchaser or a third party
objects to the repossession.  Here, the Tribe by statute has
interposed an objection to repossession if the individual Indian does
not affirmatively give his consent, although the Tribe's objection may
be overcome in proceedings in Tribal Court.

   Moreover, the Navajo Tribe, with its special knowledge of affairs
on the Reservation and the potential for disturbances there, has
expressly determined that any business whose employees repossess
property without obtaining the consent of the tribal member or an
order of the Tribal Court is "deemed to have breached the peace of
lands under the jurisdiction of the Navajo Tribe" (7 N.T.C. Section
609;  Pet. App. 4 n.1).  A federal court should not lightly
second-guess this considered judgment by the Tribe of the measures
necessary to avoid a breach of the peace.  In addition, as explained
above, whether repossession involves an unconsented entry onto the
premises of the debtor is an important factor bearing on the validity
of self-help repossession even under Arizona law.  Given a Tribe's
long-recognized power to exclude non-Indians from the lands it
occupies and its sovereignty over its territory and members, the
"premises" for purposes of this principle under the U.C.C. may
properly be viewed as the Reservation as a whole, not merely the
particular parcel on which the individual Indian debtor resides.  The
Tribal Code therefore is consistent with the broader principles
governing repossession generally as applied to the special setting of
an Indian Reservation.

   c. Petitioner's contentions (Pet. 9, 15-16) that the decision below
will undermine Indian self-determination and responsibility and
adversely affect the extension of credit to Navajos and other Indians
also warrant a brief response.  This submission again ignores the fact
that the Tribe has not barred repossession;  the Tribe simply has
required that repossession be accomplished in an orderly fashion.
Whatever one's view of the Tribal Code provisions as a policy matter,
the Tribe's freedom to implement them would appear to be the very
essence of responsible self-government and self-determination.
Moreover, it seems likely that the enforcement by a Tribal Court of a
tribal member's contract with a non-Indian, including the ordering of
repossession, would further rather than undermine a sense of
individual and tribal responsibility.  In contrast, if repossession
could be freely accomplished by the non-Indian creditor by means of
self-help, the individual Indian and the Tribe might come to view the
legal obligations of Indians to non-Indians as a matter for outsiders
to resolve.

   We also cannot assume that the availability or cost of credit to
Navajo Indians will be substantially affected as a result of the
decision below.  The preamble to the rule adopted by the Tribal Court,
quoted above (see pages 2-3, supra), expresses sensitivity to the
interests of creditors and the need to assure the continued
availability of credit, and it manifests a purpose to administer the
repossession provisions in an inexpensive, expeditious and fair manner
that will not deter creditors from doing business with Navajo Indians.
 And we note that numerous petitions for repossession have been filed
in Tribal Court by other creditors, thereby indicating that creditors
generally have not ceased doing business with Reservation Indians
because of the Tribal Code provisions petitioner challenges.

   In any event, even if petitioner were correct that the Tribal Code
provisions might render credit somewhat more difficult or expensive
for Reservation Indians to obtain, the weighing of that interest
against the interests sought to be furthered by the Tribe's
repossession procedures is precisely the sort of policy decision that
is reserved to the Tribe as an aspect of its self-government, just as
it was reserved to the Wisconsin Legislature to weigh these competing
policy considerations when it enacted a similar prohibition against
nonconsensual self-help repossession.  Moreover, if the availability
of credit in fact does become a significant problem for Navajo Indians
in the future, the political process on the Reservation might well
prompt the Tribal Government to reassess the wisdom of its policy.
/5/ The decision below maintains that flexibility for the Tribe, and
it therefore significantly furthers the federal policy of encouraging
tribal self-government and self-determination.

   2. Especially against the background of the foregoing discussion,
it is our view that the court of appeals was clearly correct in
upholding the repossession provisions of the Navajo Tribal Code.

   a. The 1868 Treaty between the Navajo Nation and the United States
provided that a reservation would be set aside "for the use and
occupation of the Navajo tribe of Indians" and that "no persons except
those herein so authorized to do, and except such officers, soldiers,
agents and employees of the government, or of the Indians, as may be
authorized to enter upon Indian reservations in discharge of duties
imposed by law, or the orders of the President, shall ever be
permitted to pass over, settle upon, or reside in the territory
described in this article." Treaty Between the United States of
America and the Navajo Indian Tribe, June 1, 1868, Art. II, 15 Stat.
668;  Pet. App. 77.  With regard to this Treaty language, the Court
observed in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164
(1973), that "it cannot be doubted that the reservation of certain
lands for the exclusive use and occupancy of the Navajos and the
exclusion of non-Navajos from the prescribed area was meant to
establish the lands as within the exclusive sovereignty of the Navajos
under general federal supervision" (id. at 174-175 (emphasis added)).
In view of the broad treaty language and this Court's interpretation
of that language, it seems clear that, notwithstanding contracts
petitioner entered into with individual Indians off the Reservation,
the Navajo Tribe could have excluded petitioner from entering the
Reservation altogether, thereby foreclosing the possibility of
repossession of vehicles that remained on the Reservation.  But the
Tribe has not gone that far.

   The power to exclude non-Indians from a Reservation "necessarily
includes the lesser power to place conditions on entry * * * or on
reservation conduct" (Merrion v. Jicarilla Apache Tribe, 455 U.S. at
144).  /6/ In this case, the Tribe has exercised this lesser power by
permitting non-Indians to enter the Reservation in order to repossess
property of defaulting tribal members upon the condition that the
creditor obtain the written consent of the tribal member or an order
of the Tribal Court.

   b. The validity of the Tribal Code's procedural requirements as
applied to petitioner's conduct on the Reservation is reinforced by
this Court's decisions concerning the power of Indian Tribes to
exercise civil jurisdiction over non-Indians.  The Court stated in
Montana v. United States, 450 U.S. 544, 565 (1981), that a tribe "may
regulate, through taxation, licensing, or other means, the activities
of nonmembers who enter consensual relationships with the tribe or its
members, through commercial dealing, contracts, leases, or other
arrangements." Petitioner's "commercial dealing" and "contracts" with
members of the Navajo Tribe clearly were "consensual" on petitioner's
part.  To be sure, the contracts in question were entered into off the
Reservation, but this does not alter the Montana analysis.  The Tribe
has not sought to extend its substantive law of contract to
transactions occurring outside the Reservation boundaries.  The only
conduct it seeks to regulate -- the repossession of property belonging
to Indians -- occurs on the Reservation itself, and a non-Indian's
entry onto the Reservation for that specific purpose itself also is
consensual in nature.  And of course in the present case, petitioner's
contracts with tribal members necessarily were executed against the
background of the Tribal Code provisions that made clear to petitioner
the procedures that were to be followed if petitioner sought to
repossess the vehicles on the Reservation.  Because petitioner at the
very least assumed the risk that it would have to comply with those
procedures, the overall contractual arrangement between the parties
that incorporated the potential application of tribal law accordingly
was consensual in this respect as well.

   In addition, the Court observed in Montana v. United States that a
tribe may retain inherent power to exercise civil jurisdiction over
non-members even on fee lands within its reservation "when that
conduct threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of the
tribe." 450 U.S. at 566.  The provisions of the Navajo Tribal Code at
issue here were enacted to protect the "economic security" and "health
or welfare" of tribal members by requiring prior notice of a
repossession, which in turn assures that a tribal member will not be
stranded in a remote area of the Reservation without warning;  by
providing for judicial proceedings to resolve any disputes and thereby
to protect against a wrongful deprivation of property;  and by
preventing against a breach of the peace that could result from
self-help repossessions without the debtor's consent.  Pet. App. 9.

   It is true that the effect of the Navajo statute is to require
petitioner to pursue repossession through the Tribal Court if the
Indian debtor does not consent.  But "(t)ribal courts have repeatedly
been recognized as appropriate forums for the exclusive adjudication
of disputes affecting important personal and property interests of
both Indians and non-Indians." Santa Clara Pueblo v. Martinez, 436
U.S. 49, 65 (1978) (footnote omitted).  The court stressed this very
point with respect to Navajo courts in Williams v. Lee, 358 U.S. 217
(1959) where it observed that those courts "exercise broad criminal
and civil jurisdiction which covers suits by outsiders against Indian
defendants" (358 U.S. at 222) and held that the exercise of state
jurisdiction over the contract dispute there at issue "would undermine
the authority of the tribal courts over Reservation affairs and hence
would infringe on the right of the Indians to govern themselves" (id.
at 223).  Accordingly, the provision for petitioner to seek
repossession through the Tribe's own courts also is consistent with
the Court's conclusion in Montana v. United States that the exercise
of civil jursidication over non-Indians is appropriate to protect the
"political integrity" of the Tribe, and indeed the Court in Montana
cited Williams v. Lee in support of that conclusion.  450 U.S. at 566.

   Nor can petitioner draw any support from the fact that Arizona law
permits self-help repossession.  This Court has interpreted the Navajo
Treaty to provide for the exclusive sovereignty of the Navajo Tribe
over the Reservation and "to preclude extension of state law * * * to
Indians on the Navajo Reservation." McClanahan v. Arizona State Tax
Comm'n, 411 U.S. at 175.  In this case, of course, the individual
tribal members entered into contracts with petitioner off the
Reservation, and we may assume for present purposes that for this
reason, the substantive contract law of Arizona governs the
interpretation of the contract and that petitioner could bring an
action in Arizona state court in the event of a breach.  Mescalero
Apache Tribe v. Jones, 411 U.S. 145, 149 (1973);  compare Williams v.
Lee, supra.  But that is not the issue here.  /7/ As we have said, the
Navajo Tribe has sought only to regulate the procedure by which a
party may enforce its contract rights on the Reservation itself.  The
fact that an individual tribal member temporarily left the Reservation
when he entered into the contract does not disentitle the Tribe to
apply its procedural requirements in the converse situation, in which
the non-Indian comes onto the Reservation.  The Navajo Treaty of 1868
provides that an individual Indian forfeits his rights under the
Treaty only if he "shall leave the reservation * * * to settle
elsewhere" (15 Stat. 671;  Pet. App. 83) -- i.e., if he leaves the
Reservation permanently.  /8/ Here, however, there is no suggestion
that the Navajo Indians from whom petitioner repossessed vehicles had
left the Reservation permanently and settled elsewhere.

   Finally, petitioner's objections to the Tribal Court's award of
damages against it for the wrongful repossession of the vehicles are
insubstantial and do not warrant review.  The application of the
particular section of the Tribal Code providing for the award of
damages is simply an incident of the broader application to petitioner
of the Tribe's prohibition against self-help repossession.  As we have
explained, application of that prohibition is fully consistent with
legal principles governing jurisdiction over Indian matters.  The
measure of damages under the Tribal Code in the event of a wrongful
repossession is the same as that available under state law (Ariz. Rev.
Stat. Ann. Section 44-3153), and therefore cannot be regarded as an
aberrational provision to which it would be unfair to subject a
non-Indian.  In addition, the availability of such a remedy is
necessary to provide compensation for victims of wrongful
repossessions /9/ and at the same time to enforce the substantive
prohibition, which otherwise might be violated with impunity.  In any
event, the narrow issue of the authority of the Tribal Court to award
damages in these circumstances would not appear to be one of
continuing importance.  The court of appeals has held that the Tribe's
procedures governing repossession on the Reservation must be followed
by petitioner.  We must assume that petitioner henceforth will adhere
to its obligation to do so, thereby obviating any occasion for a
tribal member to seek damages in the future.  /10/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   F. HENRY HABICHT II

      Assistant Attorney General

   LOUIS F. CLAIBORNE

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   MARCH 1984

   /1/ We have lodged a copy of the Tribal Court rule with the Clerk
of this Court.

   /2/ The Tribal Court also may order immediate repossession pending
the hearing if it appears on the basis of an affidavit submitted by
the petitioner that there is an immediate and likely danger that the
property will be damaged, destroyed, hidden, or removed from the
jurisdiction of the Tribal Court or impaired as security.  In that
event, the court may order the property to be held by the petitioner
either with or without posting a bond, or held under the control of
the Navajo Nation or the court.  Section 10.

   /3/ Petitioner acknowledges these two alternative ways to
accomplish repossession under the Tribal Code, but does not suggest
that it attempted to comply with either in making the repossessions.
See Pet. 3.

   /4/ In light of the detailed provisions of the Tribal Court rule
and the explicit requirement that contract terms be enforced,
petitioner's contention (Pet. 23) that the procedures for repossession
under 7 N.T.C. Section 607 (Pet. App. 4 n.1) are vague and
standardless is wholly without merit.  This Court cannot fairly assume
that these procedures are applied in an arbitrary and capricious
manner, and petitioner offers nothing to support its speculative
assertions about the potential for such application (see Pet. 23).

   /5/ We note as well that 15 U.S.C. 1691 prohibits discrimination on
the basis of race, color, or national origin with respect to credit
transactions.

   /6/ See also 455 U.S. at 173 (Stevens, J., dissenting):  "This
'power to exclude' logically has been held to include the lesser power
to attach conditions on a right of entry granted by the tribe to a
nonmember to engage in particular activities within the reservation."
See also id. at 182.

   /7/ There is no indication that petitioner has brought an action in
state court to enforce its contracts with Navajo Indians.  If it did
and the state court were held to have jurisdiction, the Navajo Tribal
Courts presumably would respect the state court judgment if petitioner
sought to execute that judgment on the Reservation.

   /8/ The excerpts from the unpublished transcripts of the sessions
at which the Treaties were negotiated, relied upon by petitioner (Pet.
28-29), likewise refer to situations in which an Indian has left the
Reservation permanently.

   /9/ We note that petitioner itself persuaded the Arizona Court of
Appeals, on conflict of laws grounds, not to permit a member of the
Navajo Tribe to bring an action in state court to recover damages
under 7 N.T.C. Section 609 for a wrongful repossession in violation of
7 N.T.C. Section 607, Pet. App. 4 n.1, See Brown v. Babbit Ford, Inc.,
117 Ariz. 192, 571 P.2d 689 (1977).  Petitioner's protestations
regarding the suitability of the Tribal Court -- the only forum
remaining -- for the award of damages therefore do not come with
especially good grace.

   /10 As respondents explain (Br. in Opp. 8-10), the cases upon which
petitioner relies (Pet. 9-12) are not in conflict with the decision
below.  For example, in Brown v. Babbitt Ford, Inc., 117 Ariz. 192,
571 P.2d 689 (1977), the Arizona Court of Appeals declined to consider
the validity of the Tribe's repossession statute, the authority of a
Tribal Court to award damages under it, and the authority of the State
to impose its law on the Navajo Reservation.  It simply declined to
entertain a damages action on conflict of laws grounds.  117 Ariz. at
194 n.2, 198-199, 571 P.2d at 692 n.2, 695-696.  In Little Horn State
Bank v. Stops, 170 Mont. 510, 555 P.2d 211 (1976), cert. denied, 431
U.S. 924 (1977), the Montana Supreme Court sustained the writ of
execution issued by a state court and levied by the sheriff by means
of the garnishment of the wages of an Indian on the reservation to
enforce a judgment in an action on a contract entered into off the
reservation.  In this case, of course, petitioner did not bring an
action in state court;  it resorted to self-help.  Moreover, in the
Little Horn State Bank case, the court expressly relied upon the
absence of any tribal mechanism for enforcement of the state court
judgment (555 P.2d at 213-214);  here the Navajo Tribe has enacted a
mechanism for repossession.  In Duluth Lumber and Plywood Co. v. Delta
Development, Inc., 281 N.W. 2d 377 (Minn. 1979), the court sustained
state court jurisdiction over a breach-of-contract suit against an
Indian Housing Authority because, the court held, the transaction was
not confined to the reservation.  Id. at 382-383.  In this case, in
contrast, the question whether a state court would have jurisdiction
over a suit by petitioner against an Indian debtor simply is not
involved.  In addition, Minnesota, unlike Arizona, has accepted
jurisdiction under Public Law 280.  See 281 N.W. 2d at 382-383.