travel jurisdiction cases are not usually encapsulated nor do they lend themselves a simplified analysis supreme court itself observed that questions of jurisdiction over engines and engine country are complex a patchwork of federal state nput on the issue of the reckoning that the court focus on the second exception of them montana decision the court has been supplied with the ruling of the navajo supreme court acts to develop the sovereignty of the engine nations they passed the the the tribal court development act they indian stock determination act which historically the united states had provided governmental services to the tribes and through this act the tribes were now able to contract to provide basic governmental services law enforcement health social services all the other services that a government is normally expected to supply to it all as a reflection of congress's intent to develop the indian tribes and as a limited sovereignty and go back further a court made me familiar with the different directions that congress had at least in one context a very clear we have permission of montana in the plains commerce case now montana itself deals with two exceptions that would allow tribal jurisdiction tribal court jurisdiction over cases involving feeling and within the reservation those what those two exceptions are directed to in montana itself and that of course is what means commerce is also directed to feeling and located within the reservation the question for us is not the context of feeling and which is where those exceptions were originally drawn well your honor even the issue of feeling at some court it is it is risen to the level of being all important an other court saying no whether it's be land or not is not so important to the issue back to montana the point i was trying to make your honor is that the two exceptions in montana number one the consensual conduct is subject to any and every kind of interpretation just as the second one the health and welfare of the tried to make their subject to whatever in your honor for example in this case as as plaintiffs were would emphasize here we have almost one of the most fundamental of ri tribal government they purchased these vehicles limited to the use of their own governmental employees who were injured in the course of carrying out their duties inside the reservation you know all of was enough to find jurisdiction over the insurance company that had offices off the reservation it is our contention your honor and as stated in the navajo supreme applicable and as i read earlier where this this issue is just not subject to being able to be pinned down arguably it's because that the two exceptions in one turn are open to so much not stated specifically where we're going to apply due process or a minimum context and refer to it but there has been terminology similar to what you would find and a minimum cont are there it is as i said earlier a horse wandering onto the reservation they find that sufficient contact to find your restriction in this case where places have listed a laundry list of continue protecting the safety of its roadways here of course wandering loose on a roadway which gave the jurisdiction to a nonmember that did not live on the reservation contrast that to as i said in the record a long list protected under the warranty of this vehicle and so all of this goes into the foreseeability of ford defending in tribal court where they knew they jurisdiction analysis that we're both of us are attempting to apply here to the tribes assertion of jurisdiction i think that's the plains case itself if you take a look at how justice roberts analyzed the contacts and the the  next issue with respect to the longs case and looked at how what kind of contacts the bank had had with the tribal members with the tribe itself i mean if you look at that you can see that he looks at the question of whether it would be fair to expect a non indian bank to be hauled into tribal court there's also one other case under this circuit the stalest kootenai case that's a very good analysis by this court of the personal jurisdiction and minimum contacts analysis so  i think that rather than spend too much time on that i think it's pretty well established that the facts of this case if we were dealing with a state court attempting to adjudicate our products liability claim against ford that the facts would definitely satisfy the minimum contacts test and in fact in their brief ford motor company actually on page fifteen of their brief the fact that a stink court would have subject matter jurisdiction under similar facts does patterns does not demonstrate that the tribal court has jurisdiction so i think they understand that if we were dealing with the state court here that that's the minimum contact analysis would fit in that in the state courts it wonderstone you correctly then that your view under the state of the state of the law x if you're view of montana as it exists i said here if we if we look at this as a state court jurisdiction case we know that minimum contacts are satisfied in the court would have jurisdiction now montana comes in because of the simple fact that this is an indian tribe and it's a bit bittersweet for me to be here i'm very honored to be before this court as a tribal member as a tribal attorney and as a person who's been a resident of the reservation for many years however it's a bittersweet because we're essentially  i'm representing the tribe in the court of the conqueror and so montana was developed because the conquering societies have always through the through history have always struggled with that question of what do we want to leave to that conquered society what institutions what political powers do we want to leave them with now in the case of indian tribes montana has been developed to answer those difficult questions and in the case of the navajo nation we know that congress has supported the tribal court system as early as the one nine hundred thirty congress established to be a course which then morphed into the tribal courts tribal courts have been set up for many many decades the indian tribal justice that was was enacted and congress routinely funds provides lots of funding for tribal courts and clearly that is something that the congress that the federal government views is very very important for tribal societies to maintain as their as their separate political bodies so i think that montana is clearly the rule and there's that there's that notion that you know if tribes are going to act like state governments which the nav nation has attempted to do here by enacting a long arm statute that's the same as the state statute by right and engaging in the same due process and minimum contacts analysis if if the tribe is going to act like a state government over nine indians then we need to decide whether the exercise of that authority over the non indian is fair and is something that we will allow so i do believe that montana is the rule but i also firmly believe that both tests under the montana analysis the consensual relationship test and the tribal self government test have been fully satisfied in this case because you have a company that has purposely availed itself has entered into a contract directly with the tribe and this notion that the inability of the navajo nation to adjudicate this case would have to have catastrophic consequences for the tribe i mean what  mean in the plains commerce case that was simply justice roberts mentioning one commentator who used the word catastrophic is let you down by that language well your honor let's let's assume that from now on if there was if there was let's say a taxation a regulatory taxation law of some sort let's say than on india now wanted to use the planes commerce case and say if they cannot tax us as a business or if they cannot tax our oil  severance from the reservation it's not catastrophic to them then i'm indian company could simply use this this this notion of this catastrophic consequences to invalidate tribal taxation across the board it would overrule the cole their case and catastrophic means and i think that we should be we should be cognizant of the fact that this was a five four decision and also that give us the five the count yes i understand but that just shows that it's very difficult to to have a straight line and to have everyone on the same page with respect to these issues and so i mean i think that here we have a very clear minimum contacts case and the navajo nation courts deserve the chance to be treated like any other state court thank you thank you for to nonmembers from the tribes that is for that's the basic question what we heard before with the tribes should be allowed to regulate their own members conduct with which we don't disagree but the king on case says that for the second exception to apply the outsiders conduct has to have a direct threat to tribal sovereignty in the strait case which is the supreme court case they say that generalized harm to tribal members is insufficient to meet the second test let me ask you this and i don't i'm not describing the facts of this case so this is a there's a hypothetical let's assume that some evil car company which ford is not but let's assume that some evil car catastrophic effect on the tribes ability to govern itself you're also describing two things that aren't present here one is deliberate conduct which there's no allegation here second year although that may mean that may or may not be depending on how  sold the car in your hypothetical sold the car to try course that's not what happened sure for additional dealer new mexico the dealer in new mexico is not or don't understand it into a separate contract with the tribe also here you have to keep in mind that the defect that's alleged is not any defect that caused the accident itself the defect alleged in this is plain in the complaint it was playing in the proceedings before judge rosenblatt on a preliminary injunction and has commented on the navajo supreme court opinion is a failure of a seat in the seat belt only caused an enhanced injury i e the injuries that would have occurred if the seatbelt had worked well during the act so the that's in the king mountain case as in the other case a you look at the relationship between the land and the claim and so for example if there's a claim that outside contact is somehow affecting land then the land may take an elevated status in terms of when the same thing what happened exactly and that's why you don't have any direct threat to tribal sovereignty because it really doesn't affect the ability to try to another's a result would be different in a state court or federal court or tribal court because the harm doesn't in securely affect the try it's simply an accident of the of a common nature which is something that doesn't come within this this montana stuff and then you ask is this if i can the language in the planes commerce case the talks about catastrophic with respect to the montana exception is i it seems to me a tightening of the exceptional set this way and then makes it quite clear that the exception within the reservation so we're back to core montana the exceptions were originally written in montana with respect to feel land for us are we supposed to read that catastrophic language in the plains commerce case solely with respect to the land or is it a go beyond the case in which they're actually writing the language i think is beyond the case for this reason because it's true that montana was a feeler and case and it's true that straight was a right away sharpen and become narrower as the case has been decided is the idea that the land is only one thing to look at and one factor and then you judge the land in relation to the claim being made whereas before in fact this court presumption lance that this is a turning point for the let me ask you this is clearly above our pay grade to rewrite montana minute it is what it is is it time for the united states supreme court to revisit montana i mean i struggle with montana we all struggle with montana there's a lot of ambiguity there's a lot of one of some point the court revisit certain areas in the law and we conceptual we there yet was montana so the supreme court should be theirs as well i don't i don't think so but i will tell you that when you read the navajos supreme court opinion particularly the last two paragraphs that court is basically saying that the u s supreme court took a wrong turn starting with montana has gone further off the track in the last thirty years and so i think what the navajos supreme court is saying basically to the u s supreme court or perhaps to congress is the supreme court in the tribe has made a mess of tribal court jurisdiction and somebody needs to fix it i think i think that's what they're not the supreme court say but that to me that that's really a congressional  so congress could fix the montana line of cases easily simply by passing a statute is that something common one of although the supreme court seems to be quite willing as montana in the later cases indicate to proceed without benefit of clergy that is to say it doesn't caused the accident on the tribal road in this case ford did not have the power to control where early motors who was the albacore the gallup new mexico dealer that sold it where these expeditions would go to try did not set any conditions on entry in fact it was the tribe itself that brought the expedition on to tribal land and as we talked about earlier in this discussion the alleged effect didn't cause the accident we ought to be prepared to say either that as a general proposition under under montana ordinary negligent torts cannot be brought against nine indians in tribal court well well i would i would agree with that pro that there's some relation between the land status and the fact that caused the harm is somewhat closer but i don't think it's close enough to get there because of the stringency of the second test which is there's  no direct threat to tribal sovereignty straights that is harm to members is insufficient it's really just a torrid action for damages that doesn't affect tribal sovereignty period and that's how can you say it doesn't affect there may not be the test but how can you say it doesn't affect tribal sovereignty when we're talking about death of a tribal law enforcement officer well you know this is different from afford to vehicle sold to a private person like my problem i guess is with your word affect it clearly affects how strongly effect is or how strong effect must mean that's a different question but if you're going to shoot it again ford motor company didn't do that but if you're going to shoot a tribal law enforcement sovereign function enforcement of the law of the sovereign yes but but i don't think an accident even though it injures or kills a policewoman interferes in the sense that we're talking about it's not like someone is trying to prevent them deliberately from doing their duties under law for someone trying to bribe them to get a better result from the tribal government something like that i think may have a more direct effect on tribal sovereignty  proceeding i suppose theoretically it would go back to judge rosenblatt to decide whether to make the injunction permanent or not and it seems to me that the jurisdictional facts are undisputed and that this court could send a remit and order to judge rosenblatt to say that the preliminary injunction should become permanent because based upon the record that was developed in the private trial court there are no jurisdictional fact that would allow the case to go back for any further here and they can sue you in either district court or appear your court in either arizona or utah and that just this  occurred actually on the utah portion of the navajo reservation so theoretically ford would be subject to sue can and do you have any statute of limitations defenses in either the federal district court and either the two state courts i have not re and i don't know when was the case filed in federal district court within the period a lot of special imitations well they never filed in district the source no injury cases filed in tribal court i see so the only thing the only proceeding we have is it then you're reserving the right to redefine on the ground a statue of limitations if we say that the tribal court didn't have jurisdiction and that the suit if it can go forward if in all and you know federal or state court well as i think judge silberman said before that that's a decision that's above my pay grade because i'm not involved in the personal injury case but i presume that that if that defense is out there i presume for good would consider raising it well you have whatever defenses you have that the seat belt is a defect cheney and a ford motor credit directly financed that vehicle to officer told that cheney and we had that accident there would be no dispute that the navajo tribal court would have jurisdiction over such a case today we would reverse the polluter injunction and drag rosenblatt would have to let your case go forward in tribal court it would go forward in crime of course if we disagree with you then we would affirm the pulmonary injunction and then whoever wants to go back to judge rosenblatt for further proceedings and i can do that is that right now this would work that's my understanding let me ask you one final thing is there any reason why you can't nation has its own interest in this case too and if you don't represent them no your honor but it's an issue that i believe very strongly and personally and that if there is going to be this development of congress's intent yvel of these courts it has to be done now the nation now has its own bar exam it has its own bar association there's a hope that it was a professor and assistant dean at a s u some day these cases are going to naturally be before the tribal courts it has to start and so why not just now defendants have their recourse if they are denied due thank you and i wonder if anyone in this room has ever purchased a vehicle directly from the manufacturer from toyota from g m g m in detroit it doesn't happen because these manufacturers deal through their dealership you have to go through the dealership to get to get a vehicle as an as a consumer or even as a tribal government or statements newness of talent you have to go through the dealership so i think that the point is that ford motor company conducted itself directly with the navajo nation government and we're not talking about just any any tribal member here we're talking about a government employee of the highest order a police officer and if we have a situation where the this this situation occurs and the navajo nation has no ability to exercise its authority over these either whether they're negligent or intentional to then you have a very serious impairment of the tribes sovereignty of the tribes self government interests i think there's a serious question whether there might be an ability to even bring such a case in a state court to find a state court in utah i'm going to look at the williams versus letus i'm going to look at how adjudication of this matter in a state court would possibly impinge on the navajo nation's right to adjudicate it in their own courts so i think the question of whether there's concurrent jurisdiction in the state