FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WINDOW ROCK UNIFIED SCHOOL 

DISTRICT; PINON UNIFIED SCHOOL 

DISTRICT,

Plaintiffs-Appellees,

v.

ANN REEVES; KEVIN REEVES;

LORETTA BRUTZ; MAE Y. JOHN;

CLARISSA HALE; MICHAEL COONSIS;

BARBARA BEALL,

Defendants,

and

RICHIE NEZ; CASEY WATCHMAN;

BEN SMITH; WOODY LEE;JERRY 

BODIE; EVELYN MEADOWS;

UNKNOWN PARTIES, named as John 

and Jane Does I–V (Current or 

former members of the Navajo 

Nation Labor Counsel),

Defendants-Appellants.

No. 13-16259

D.C. No.

3:12-cv-08059-

PGR
2 WINDOW ROCK USD V. NEZ

WINDOW ROCK UNIFIED SCHOOL 

DISTRICT; PINON UNIFIED SCHOOL 

DISTRICT,

Plaintiffs-Appellees,

v.

ANN REEVES; KEVIN REEVES;

LORETTA BRUTZ; MAE Y. JOHN;

CLARISSA HALE; MICHAEL COONSIS;

BARBARA BEALL,

Defendants-Appellants,

and

RICHIE NEZ; CASEY WATCHMAN;

BEN SMITH; WOODY LEE;JERRY 

BODIE; EVELYN MEADOWS;

UNKNOWN PARTIES, named as John 

and Jane Does I–V (Current or 

former members of the Navajo 

Nation Labor Counsel),

Defendants.

No. 13-16278

D.C. No.

3:12-cv-08059-

PGR

ORDER AND

AMENDED 

OPINION

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, Senior District Judge, Presiding

Argued and Submitted September 17, 2015

Submission Vacated January 5, 2016

Resubmitted June 28, 2017

San Francisco, California
WINDOW ROCK USD V. NEZ 3

Filed June 28, 2017

Amended August 3, 2017

Before: Consuelo M. Callahan, Morgan Christen, 

and Michelle T. Friedland, Circuit Judges.

Order;

Opinion by Judge Friedland;

Dissent by Judge Christen

SUMMARY*

Tribal Jurisdiction

The panel reversed the district court’s decision enjoining 

tribal forum proceedings on employment-related claims 

against two Arizona public school districts operating schools 

on leased tribal land.

The panel held that it was “colorable or plausible” that 

the tribal adjudicative forum, the Navajo Nation Labor 

Commission, had jurisdiction because the claims arose from 

conduct on tribal land over which the Navajo Nation had the 

right to exclude nonmembers, and the claims implicated no 

state criminal law enforcement interests. Well-established 

exhaustion principles therefore required that the tribal forum 

have the first opportunity to evaluate its own jurisdiction, 

including the nature of the state and tribal interests involved.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 WINDOW ROCK USD V. NEZ

The panel reaffirmed that there exist two distinct 

frameworks for determining whether a tribe has jurisdiction 

over a case involving a non-tribal-member defendant: 

(1) the right to exclude, which generally applies to 

nonmember conduct on tribal land; and (2) the exceptions 

articulated in Montana v. United States, 450 U.S. 544 

(1981), which generally apply to nonmember conduct on 

non-tribal land. The panel held that Nevada v. Hicks, 

533 U.S. 353 (2001) (addressing concerns related to 

enabling state officers to enforce state criminal laws for 

crimes that occurred off the reservation), did not eliminate 

the right-to-exclude framework, such that jurisdiction over a 

nonmember exists only if a Montana exception applies, 

regardless of whether the relevant conduct occurred on tribal 

or non-tribal land. The panel held that the court’s caselaw 

left open the question of what state interests might be 

sufficient to preclude tribal jurisdiction over disputes arising 

on tribal land; therefore, tribal jurisdiction was plausible 

enough that exhaustion was required.

The panel reversed the district court’s summary 

judgment in favor of the plaintiff school districts and 

remanded with instructions to dissolve the injunction and 

dismiss the case for failure to exhaust.

Dissenting, Judge Christen wrote that the majority’s 

opinion created a split with the Seventh, Eighth, and Tenth 

Circuits. She wrote that tribal jurisdiction was neither 

colorable nor plausible because Montana and the Supreme 

Court authority that followed it make clear that the inherent 

sovereign powers of Indian tribes generally do not extend to 

the activities of nonmembers. Judge Christen wrote that she 

disagreed with the majority’s holding that unless a state is 

seeking to enforce its criminal laws, Montana does not apply 

to nonmember conduct on tribal land even in the presence of 
WINDOW ROCK USD V. NEZ 5

clear competing state interests. In addition, the majority 

gave short shrift to the school districts’ obligation to operate 

public schools within the Navajo Reservation’s boundaries.

COUNSEL

Paul Spruhan (argued), Navajo Nation Department of 

Justice, Window Rock, Arizona, for Defendants-Appellants

Richie Nez, Casey Watchman, Ben Smith, Woody Lee, Jerry 

Bodie, and Evelyn Meadows.

David R. Jordan, Law Offices of David R. Jordan P.C., 

Gallup, New Mexico, for Defendants-Appellants Ann 

Reeves, Kevin Reeves, Loretta Brutz, Mae Y. John, Clarissa 

Hale, Michael Coonsis, and Barbara Beall.

Eileen Dennis GilBride (argued) and Georgia A. Staton,

Jones Skelton & Hochuli P.L.C., Phoenix, Arizona; Patrice 

M. Horstman, Hufford Horstman Mongini Parnell & Tucker 

P.C., Flagstaff, Arizona; for Plaintiffs-Appellees.

Josephine Foo, Office of the Chief Justice, Judicial Branch 

of the Navajo Nation, Window Rock, Arizona, for Amicus 

Curiae Navajo Nation Supreme Court.

ORDER

The majority opinion filed on June 28, 2017, is hereby 

amended as follows:

On page 24 of the slip opinion, delete footnote 13:
6 WINDOW ROCK USD V. NEZ

To the extent that the Districts argue that 

Arizona is under a federal mandate to provide 

a free public education to Navajo children, 

any such mandate does not necessarily 

require that schools be located on tribal land 

as opposed to, for example, land located 

within the boundaries of the reservation but 

owned by the State or nonmembers.

Future petitions for rehearing will not be entertained. 

The mandate remains stayed pending resolution of PlaintiffAppellees’ petition for writ of certiorari.

OPINION

FRIEDLAND, Circuit Judge:

This appeal requires us to decide whether it is “colorable 

or plausible” that a tribal adjudicative forum has jurisdiction 

over employment-related claims against two public school 

districts operating schools on leased tribal land. Because the 

claims arise from conduct on tribal land and implicate no 

state criminal law enforcement interests, we conclude that 

tribal jurisdiction is colorable or plausible under our court’s 

interpretation of Nevada v. Hicks, 533 U.S. 353 (2001). 

Well-established exhaustion principles therefore require that 

the tribal forum have the first opportunity to evaluate its own 

jurisdiction over this case, including the nature of the state 

and tribal interests involved. We thus reverse the district 

court’s decision enjoining tribal forum proceedings.

I.

The question of tribal jurisdiction arose when a group of 

current and former employees (the “Employees”) of two 
WINDOW ROCK USD V. NEZ 7

Arizona public school districts, Window Rock Unified 

School District and Pinon Unified School District (the 

“Districts”), filed complaints with the Navajo Nation Labor 

Commission (the “Commission”).

The Districts both operate schools on land leased from 

the Navajo Nation (the “Nation”). Window Rock’s lease 

requires the school district to abide by Navajo laws, to the 

extent that they do not conflict with Arizona or federal law, 

and it further provides that the agreement to abide by Navajo 

laws does not forfeit any rights under state or federal laws. 

Pinon’s lease with the Nation does not mention Navajo law.

In their complaints before the Commission, some of the 

Employees alleged that the Districts owed them merit pay 

under Arizona law and others alleged that the Districts had 

violated their rights under the Navajo Preference in

Employment Act.1 The Commission eventually 

consolidated all of the Employees’ complaints.

The Districts moved to dismiss the complaints on the 

ground that the Commission lacked jurisdiction over 

personnel decisions made by Arizona public school districts. 

Following a motion hearing, the Commission ordered 

additional discovery on the relationship between the Nation 

and the Districts.

Before the Commission could hold an evidentiary 

hearing on the additional discovery, the Districts filed suit in 

federal district court seeking a declaration that “the 

[Commission] and the Navajo tribal courts lack jurisdiction 

over public school districts’ employment decisions and 

practices conducted on the Navajo Reservation.” The 

 1 Most of the Employees are members of the Navajo Nation.
8 WINDOW ROCK USD V. NEZ

Districts also sought an injunction “to bar further 

prosecution of those claims in the tribal courts due to the lack 

of jurisdiction.” The Commission, joined by the Employees, 

moved to dismiss for failure to exhaust tribal remedies. The 

Districts countered with a motion for summary judgment, 

asserting that tribal jurisdiction was so plainly lacking that 

the Districts did not need to exhaust tribal remedies. The 

Commission responded that summary judgment was 

unwarranted, particularly in the absence of fact-finding by 

the Commission. The Employees similarly argued that 

summary judgment was improper, and they also filed a Rule 

56(f) motion to stay summary judgment proceedings to 

allow discovery.

The district court held that tribal jurisdiction was so 

plainly lacking that exhaustion in the tribal forum was not 

required. Accordingly, it denied the Commission and 

Employees’ motion to dismiss and the Employees’ motion 

to stay summary judgment proceedings. It also granted 

summary judgment to the Districts and enjoined further 

tribal proceedings. The Commission and Employees timely 

appealed.

II.

“We review questions of tribal court jurisdiction and 

exhaustion of tribal court remedies de novo and factual 

findings for clear error.” Grand Canyon Skywalk Dev., LLC 

v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1200 (9th Cir. 2013), 

cert. denied sub nom. Grand Canyon Skywalk Dev., LLC v. 

Grand Canyon Resort Corp., 134 S. Ct. 825 (2013). The 

merits of the Employees’ complaints were not before the 

district court, nor are they before us—the only question 

presented here is whether tribal jurisdiction is so plainly 
WINDOW ROCK USD V. NEZ 9

lacking that the district court properly enjoined tribal 

proceedings.2 

III.

A tribal adjudicative body generally must have the first 

opportunity to evaluate its jurisdiction over a matter pending 

before it. In National Farmers Union Insurance Cos. v. 

Crow Tribe of Indians, 471 U.S. 845 (1985), the Supreme 

Court explained the importance of this exhaustion 

requirement: “[Congress’s] policy of supporting tribal selfgovernment and self-determination . . . favors a rule that will 

provide the forum whose jurisdiction is being challenged the 

first opportunity to evaluate the factual and legal bases for 

 2 The dissent discusses the merits of the Employees’ claims. But the 

Districts asked the district court to enjoin the tribal proceedings on the 

ground that “the Navajo tribal courts lack jurisdiction over public school 

districts’ employment decisions and practices conducted on the Navajo 

Reservation, when the Districts are fulfilling their state responsibilities 

to provide education for all Arizona citizens,” and the district court 

entered the requested injunction after agreeing as a matter of law with 

that broad legal principle, without discussing the merits of any particular 

employee’s claim. Similarly, in defending the district court’s judgment 

on appeal, the Districts argue that “[t]he facts material to the 

jurisdictional issue are (1) the status of the [school districts] as nonIndians—i.e., Arizona political subdivisions who were haled into tribal 

court as defendants; and (2) the fact that the [school] districts’ conduct 

at issue—employment decisions made in the scope of their constitutional 

obligation to provide a general and uniform public school system—is not 

connected to tribal lands.” (citations omitted). Even if we were to 

consider the merits issues raised by the dissent and agreed that some of 

the employees’ claims should likely fail, the dissent offers no reason to 

believe that Michael Coonis’s claim lacks merit. So, even assuming a 

merits evaluation were relevant to the exhaustion question, there exists 

no merits-based justification for dismissing the entire consolidated 

action.
10 WINDOW ROCK USD V. NEZ

the challenge.” Id. at 856. The Court reasoned that requiring 

exhaustion of jurisdictional questions in a tribal forum would 

not only appropriately respect “tribal self-government and 

self-determination,” but would also serve “the orderly 

administration of justice in the federal court . . . by allowing 

a full record to be developed in the Tribal Court before either 

the merits or any question concerning appropriate relief is 

addressed.” Id. Moreover, “[e]xhaustion of tribal court 

remedies . . . will encourage tribal courts to explain to the 

parties the precise basis for accepting jurisdiction, and will 

also provide other courts with the benefit of their expertise 

in such matters in the event of further judicial review.” Id.

at 857.3

In light of the importance of exhaustion, federal courts 

will excuse the failure to exhaust in only four circumstances. 

See Elliott v. White Mountain Apache Tribal Court, 566 F.3d 

842, 847 (9th Cir. 2009). The Districts argue that one of 

these circumstances exists here: “when it is ‘plain’ that tribal 

court jurisdiction is lacking, so that the exhaustion 

requirement ‘would serve no purpose other than delay.’” Id.

(quoting Nevada v. Hicks, 533 U.S. 353, 369 (2001)). We 

have explained that the “plainly lacking” exception to the 

exhaustion requirement does not apply when “jurisdiction is 

‘colorable’ or ‘plausible.’” Id. at 848 (quoting Atwood v. 

Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th 

 3 The dissent criticizes us for not explaining why the policy purposes 

the Supreme Court set forth in National Farmers favor exhaustion in this 

case. But those policy purposes reflect a respect for the sovereignty of 

tribes and are therefore not dependent on the particular facts of any case. 

That is why we have held that exhaustion is always required unless

certain limited circumstances are present. See Elliott v. White Mountain 

Apache Tribal Court, 566 F.3d 842, 847 (9th Cir. 2009).
WINDOW ROCK USD V. NEZ 11

Cir. 2008)). We must therefore decide whether tribal 

jurisdiction in this case is colorable or plausible.

IV.

Our caselaw has long recognized two distinct 

frameworks for determining whether a tribe has jurisdiction 

over a case involving a non-tribal-member defendant: (1) the 

right to exclude, which generally applies to nonmember 

conduct on tribal land; and (2) the exceptions articulated in 

Montana v. United States, 450 U.S. 544 (1981), which 

generally apply to nonmember conduct on non-tribal land. 

The Commission and Employees argue that tribal 

jurisdiction is colorable in this case under either framework. 

The Districts respond that Nevada v. Hicks, 533 U.S. 353 

(2001), eliminated the first framework such that jurisdiction 

over a nonmember exists only if a Montana exception 

applies, regardless of whether the relevant conduct occurred 

on tribal or non-tribal land.

We have repeatedly rejected the Districts’ reading of 

Hicks, and today we reaffirm that the right-to-exclude 

framework continues to exist. Our court has read Hicks as 

creating only a narrow exception to the general rule that, 

absent contrary provisions in treaties or federal statutes, 

tribes retain adjudicative authority over nonmember conduct 

on tribal land—land over which the tribe has the right to 

exclude. We have held that Hicks applies “only when the 

specific concerns at issue in that case exist.” Water Wheel 

Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 

813 (9th Cir. 2011). The specific concerns at issue in Hicks

related to enabling state officers to enforce state criminal 

laws for crimes that occurred off the reservation. 533 U.S. 

at 358 n.2. Because Arizona’s interest in the enforcement of 

state criminal laws is not implicated here, we reject the 

Districts’ argument that any state interest in this case plainly 
12 WINDOW ROCK USD V. NEZ

defeats jurisdiction under Hicks.

4 Contrary to the dissent’s 

arguments, however, this is not to say that state interests 

beyond those in criminal law enforcement could never 

trigger application of Hicks. Rather, we hold only that 

because our caselaw leaves open the question of what state 

interests might be sufficient to preclude tribal jurisdiction 

over disputes arising on tribal land, tribal jurisdiction is 

plausible enough here that exhaustion is required.

A.

To understand what Hicks did and did not do, it is 

important to situate that case in the context of other Supreme 

Court precedent.

1.

We begin with the general principle that a tribe’s right to 

exclude non-tribal members from its land imparts regulatory 

and adjudicative jurisdiction over conduct on that land.

The Supreme Court has long recognized that Indian 

tribes have sovereign powers, including the power to 

exclude non-tribal members from tribal land. See, e.g., New 

Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333 

(1983). A tribe’s regulatory authority derives from these 

sovereign powers. As the Supreme Court has explained:

This power [to exclude] necessarily includes 

the lesser power to place conditions on entry, 

on continued presence, or on reservation 

conduct, such as a tax on business activities 

 4 Because we hold that jurisdiction is colorable under the right-toexclude framework, we need not reach Appellants’ arguments about the 

second framework.
WINDOW ROCK USD V. NEZ 13

conducted on the reservation. When a tribe 

grants a non-Indian the right to be on Indian 

land, the tribe agrees not to exercise its 

ultimate power to oust the non-Indian as long 

as the non-Indian complies with the initial 

conditions of entry. However, it does not 

follow that the lawful property right to be on 

Indian land also immunizes the non-Indian 

from the tribe’s exercise of its lesser-included 

power to tax or to place other conditions on 

the non-Indian’s conduct or continued 

presence on the reservation. 

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144–45 

(1982).

In Strate v. A-1 Contractors, 520 U.S. 438 (1997), the 

Supreme Court tied the scope of adjudicative jurisdiction to 

regulatory jurisdiction by holding that “[a]s to nonmembers, 

. . . a tribe’s adjudicative jurisdiction does not exceed its 

legislative jurisdiction.”5 Id. at 453. This suggested that, 

because tribes generally maintain the power to exclude and 

thus to regulate nonmembers on tribal land, tribes generally 

also retain adjudicative jurisdiction over nonmember 

conduct on tribal land.

The federal government may, however, limit a tribe’s 

power either by treaty or by statute. See Iowa Mut. Ins. Co. 

v. LaPlante, 480 U.S. 9, 18 (1987). In interpreting the extent 

 5 Whether a tribe’s adjudicative jurisdiction equals its legislative 

jurisdiction remains an open question. See Hicks, 533 U.S. at 358; Philip 

Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 940 (9th 

Cir. 2009) (“[I]t is unclear whether . . . tribal adjudicative jurisdiction 

extends to the boundary of tribal legislative jurisdiction.”).
14 WINDOW ROCK USD V. NEZ

of any such limits, courts do not “lightly assume that 

Congress . . . intend[ed] to undermine Indian selfgovernment.” Michigan v. Bay Mills Indian Cmty., 134 S. 

Ct. 2024, 2032 (2014). Thus, “[c]ivil jurisdiction over . . .

activities [of non-Indians on tribal land] presumptively lies 

in the tribal courts unless affirmatively limited by a specific 

treaty provision or federal statute.” Iowa Mut. Ins. Co., 

480 U.S. at 18. On the other hand, criminal jurisdiction over 

non-Indians for offenses committed on tribal land does not 

presumptively lie in the tribal courts. See Oliphant v. 

Suquamish Indian Tribe, 435 U.S. 191, 195, 206–08 (1978).6 

The Supreme Court has made clear that this distinction rests 

largely on the difference between Congress’s traditional 

approach to tribal criminal jurisdiction, which Congress has 

historically limited, and its approach to tribal civil 

jurisdiction, which it has not so limited. See Nat’l Farmers, 

471 U.S. at 854–55.

Supreme Court precedent prior to Hicks thus indicated 

that tribes generally have civil but not criminal adjudicative 

jurisdiction over nonmember conduct on tribal land.

 6 The decision in Oliphant that tribal courts lack criminal 

jurisdiction over non-Indians was based partly on the Supreme Court’s 

conclusion that relevant legislation and treaties at the time required this 

outcome. 435 U.S. at 203–08. Since Oliphant, Congress has expanded 

tribal jurisdiction to criminal cases involving nonmember Indians’

conduct on tribal land, see United States v. Lara, 541 U.S. 193, 196 

(2004) (citing 25 U.S.C. § 1301(2)), and it has authorized tribal courts 

“to ‘exercise special domestic violence criminal jurisdiction’ over 

certain domestic violence offenses committed by a non-Indian against an 

Indian,” United States v. Bryant, 136 S. Ct. 1954, 1960 n.4 (2016) 

(quoting 25 U.S.C. § 1304). Nevertheless, it remains true that “[t]ribal 

governments generally lack criminal jurisdiction over non-Indians who 

commit crimes in Indian country.” Id. (citing Oliphant, 435 U.S. at 195).
WINDOW ROCK USD V. NEZ 15

2.

By contrast, the Supreme Court has held that a tribe does 

not possess any inherent sovereign right to regulate 

nonmembers on non-tribal land, even if the land falls within 

the boundaries of a reservation. For nonmember conduct on 

non-tribal land, therefore, the Supreme Court has applied a 

different framework for analyzing the scope of tribal 

adjudicative authority.

In Montana v. United States, 450 U.S. 544 (1981), the 

Court held that the Crow Tribe did not have the sovereign 

right to regulate nonmember fishing and hunting on land that 

was within the boundaries of the Crow Reservation but was 

owned by nonmembers (commonly referred to as “nonIndian fee land” or “fee land”). See id. at 563–67. The Court 

then set forth two exceptions to this general rule. First, “[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.” Id. at 565. Second, “[a] tribe may . . . retain 

inherent power to exercise civil authority over the conduct 

of non-Indians 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.” Id. at 566.

The Court analyzed both exceptions and found that 

neither was satisfied on the facts presented. See id. at 566. 

Thus, the Tribe did not have the right to regulate nonmember 

fishing or hunting on fee land. Instead, the Tribe could 

prohibit or regulate fishing or hunting by nonmembers only 

on tribal land within the reservation, “land on which the 

Tribe exercises ‘absolute and undisturbed use and 
16 WINDOW ROCK USD V. NEZ

occupation.’”7 Id. at 559 (quoting Second Treaty of Fort 

Laramie, Crow Indians-U.S., May 7, 1868, 15 Stat. 649, 

650).

As the Supreme Court has summarized, then, “tribes 

retain considerable control over nonmember conduct on 

tribal land.” Strate, 520 U.S. at 454 (emphasis added). 

“[W]ith respect to non-Indian fee lands,” however, 

“[s]ubject to controlling provisions in treaties and statutes, 

and the two exceptions identified in Montana, the civil 

authority of Indian tribes and their courts . . . generally ‘does 

not extend to the activities of nonmembers of the tribe.’”8 

Id. at 453 (alteration omitted) (emphasis added) (quoting 

Montana, 450 U.S. at 565).

 7 We note one apparent inconsistency in the Supreme Court’s 

caselaw. Although National Farmers post-dated Montana, and although 

the conduct at issue in National Farmers—like that in Montana—took 

place on non-tribal land within the boundaries of a reservation, the

Supreme Court in National Farmers did not analyze the question of 

jurisdiction pursuant to Montana. Instead, the Court stated that “the 

existence and extent of a tribal court’s jurisdiction will require a careful 

examination of tribal sovereignty, the extent to which that sovereignty 

has been altered, divested, or diminished, as well as a detailed study of 

relevant statutes, Executive Branch policy as embodied in treaties and 

elsewhere, and administrative or judicial decisions,” and that this 

“examination should be conducted in the first instance in the Tribal Court 

itself.” Nat’l Farmers, 471 U.S. at 855–56 (footnote omitted).

8 The dissent suggests that Plains Commerce Bank v. Long Family 

Land & Cattle Co., 554 U.S. 316 (2008), demonstrates that the Montana

exceptions should govern the jurisdictional question in this case. But 

Plains Commerce Bank involved “a non-Indian’s sale of non-Indian fee 

land,” id. at 330, and thus does not control this case, in which the conduct 

at issue occurred on tribal land.
WINDOW ROCK USD V. NEZ 17

B.

In Hicks, the Supreme Court modified this general 

framework to what our court has understood to be a limited 

extent.

The jurisdictional question in Hicks arose after state 

game wardens executed a search warrant on tribal land at the 

home of a tribal member suspected of committing a crime 

outside the reservation. See Hicks, 533 U.S. at 356. The 

suspect alleged that his property was damaged during the 

search and asserted civil rights claims against the state game 

wardens in tribal court. See id. at 356–57.

To resolve whether the tribal court had jurisdiction, the 

Supreme Court examined “the principle that Indians have the 

right to make their own laws and be governed by them[, 

which] requires ‘an accommodation between the interests of 

the Tribes and the Federal Government, on the one hand, and 

those of the State, on the other.’” Id. at 362 (quoting 

Washington v. Confederated Tribes of Colville Reservation, 

447 U.S. 134, 156 (1980)). The Court explained that “tribal 

authority to regulate state officers in executing process 

related to the violation, off reservation, of state laws is not 

essential to tribal self-government or internal relations—to 

the right to make laws and be ruled by them.” Id. at 364 

(internal quotation marks omitted). The Court reasoned that, 

by contrast, “[t]he State’s interest in execution of process is 

considerable.” Id. Accordingly, the Court concluded that 

the tribal court lacked jurisdiction, even though the events 

giving rise to the claim had transpired on tribal land. See id.

at 374.

The Supreme Court recognized in Hicks that its earlier 

cases suggested that tribal jurisdiction over civil suits 

depended on land ownership, but the Court stated that “[t]he 
18 WINDOW ROCK USD V. NEZ

ownership status of land, . . . is only one factor to consider 

in determining whether regulation of the activities of 

nonmembers is ‘necessary to protect tribal self-government 

or to control internal relations.’” Id. at 360 (quoting 

Montana, 450 U.S. at 564). The Court reaffirmed, however, 

that the ownership status of land is a “significant” factor, id.

at 370, that “may sometimes be . . . dispositive,” id.

Although the Court further suggested in Hicks that “the 

general rule of Montana applies to both Indian and nonIndian land,” id. at 360, it also stated in a footnote: “Our 

holding in this case is limited to the question of tribal-court 

jurisdiction over state officers enforcing state law. We leave 

open the question of tribal-court jurisdiction over 

nonmember defendants in general.” Id. at 358 n.2.

C.

Although the Districts and the dissent would have us 

read Hicks to eliminate the right-to-exclude framework, our 

court has repeatedly rejected this interpretation. We have 

held that “Hicks is best understood as the narrow decision it 

explicitly claims to be,” and we have emphasized that 

Hicks’s “application of Montana to a jurisdictional question 

arising on tribal land should apply only when the specific 

concerns at issue in [Hicks] exist.” Water Wheel, 642 F.3d 

at 813. When other concerns have been present in civil cases 

involving nonmember conduct on tribal land, we have held 

that tribal courts have jurisdiction unless a treaty or federal 

statute provides otherwise—regardless of whether the 

Montana exceptions would be satisfied.

In McDonald v. Means, 309 F.3d 530 (9th Cir. 2002), for 

example, we held that a tribal court had jurisdiction over a 

tort suit arising from an accident on a road within a 

reservation because it was a tribal road—even though neither 
WINDOW ROCK USD V. NEZ 19

Montana exception applied. See id. at 535–40, 536 n.2. We 

explained that Hicks did not preclude jurisdiction because its 

holding was limited to “the question of tribal-court 

jurisdiction over state officers enforcing state law.” Id. at 

540 (quoting Hicks, 533 U.S. at 358 n.2). In doing so, we 

explicitly rejected the argument that Hicks modified or 

overruled Montana such that it would “bar tribal jurisdiction 

not only over the conduct of nonmembers on non-Indian fee 

land but on tribal land as well.” Id. at 540 n.9.

Similarly, in Water Wheel Camp Recreational Area, Inc. 

v. LaRance, 642 F.3d 802 (9th Cir. 2011), we reaffirmed that 

narrow interpretation of Hicks. We held that the Tribe’s 

right to exclude implied tribal civil jurisdiction over an 

eviction proceeding that arose after a nonmember, private 

lessee of tribal land failed to pay rent. Id. at 805–06, 812–

13. We explained that the Montana framework was 

inapplicable because the conduct at issue occurred on tribal 

land. Id. at 809–14. We also reiterated that Hicks is limited 

to situations in which “the specific concerns at issue in that 

case exist.”9 Id. at 813.

 9 Although our decision in Philip Morris USA, Inc. v. King Mountain 

Tobacco Co., 569 F.3d 932 (9th Cir. 2009), could arguably be read to 

extend the Montana framework more broadly, we explained in Water 

Wheel that “Philip Morris’s comments regarding jurisdiction are best 

understood as a reiteration of the Supreme Court’s rule that a tribe’s 

adjudicative jurisdiction may not exceed its regulatory jurisdiction.” 

642 F.3d at 815. “Furthermore,” we continued, “Philip Morris did not 

involve a question related to the tribe’s authority to exclude or its interest 

in managing its own land. To the contrary, the activity in question 

occurred off reservation.” Id. Similarly, although Smith v. Salish 

Kootenai College, 434 F.3d 1127 (9th Cir. 2006) (en banc), could 

arguably be read to extend the Montana framework, the jurisdictional 

question in Smith arose in a different context from the one presented 

here. In Smith, a nonmember challenged a tribal court’s authority to 
20 WINDOW ROCK USD V. NEZ

We again adhered to our narrow reading of Hicks in 

Grand Canyon Skywalk Development, LLC v. ‘Sa’ Nyu Wa 

Inc., 715 F.3d 1196 (9th Cir. 2013). We held that tribal 

jurisdiction was not plainly lacking over a property and 

contract dispute involving a company that was operating a 

tourist attraction on tribal land. See id. at 1199, 1205. We 

held instead that the right-to-exclude framework applied 

because the dispute arose on tribal land, and we 

characterized Montana as “consider[ing] tribal jurisdiction 

over nonmember activities on non-Indian land, held in fee 

simple, within a reservation.” Id. at 1205. Given the lack of 

any “obvious state interests at play” we concluded that, “[a]t 

the very least, it [could] not be said that the tribal court 

plainly lack[ed] jurisdiction” under Hicks.

10 Id. We 

 

adjudicate a claim that he had filed as a plaintiff in tribal court. Id. at 

1128, 1133. We held that by filing the claim, the nonmember had 

consented to tribal jurisdiction. Id. at 1136. By contrast, nonmember 

defendants—not plaintiffs—challenge the tribal forum’s jurisdiction in 

this case.

10 The dissent here describes Water Wheel and Grand Canyon as 

“acknowledge[ing] that Hicks requires application of the Montana

framework when there are ‘competing state interests at play.’” In fact, 

in both cases we identified the lack of competing state interests as a 

reason why the Montana framework did not apply, Grand Canyon, 

715 F.3d at 1205; Water Wheel, 642 F.3d at 805, but we did not say that 

the presence of competing state interests—whatever their nature—would 

automatically cause Montana to apply. Indeed, in Grand Canyon, we 

stated that “when a competing state interest exists courts balance that 

interest against the tribe’s” to determine whether there is tribal 

jurisdiction. 715 F.3d at 1205. Here, the tribal tribunal had ordered 

discovery on the nature of the tribal and state interests at stake, but the 

district court enjoined the tribal proceedings before that discovery or any 

hearing about it could occur. We thus do not know the full contours of 

the tribal and state interests at stake, including whether or how, as the 

dissent contends, Arizona’s “interest in complying with a statutory and 

constitutional directive to provide a uniform system of public education 
WINDOW ROCK USD V. NEZ 21

therefore held that exhaustion of tribal remedies was 

required. See id. at 1200–01.

Our precedent thus makes clear that the right-to-exclude 

framework survives the narrow carve out effected by 

Hicks.

11

V.

Tribal jurisdiction is plausible in this case because (a) the 

schools operated by the Districts are located on tribal land 

over which the Navajo Nation maintains the right to exclude, 

and (b) state criminal law enforcement interests are not 

present here. We need not decide whether Hicks could be 

expanded to cover state interests other than those in criminal 

 

to all the State’s children” is implicated by the individual employment 

disputes in this case. Indeed, the parties dispute whether the Districts are 

traditional school districts controlled by state or local government, or 

whether they are “special-purpose governments with a separately elected 

governing body” that are “legally separate, and fiscally independent of 

other state and local governments,” and thus dispute how directly the 

State’s policies are involved. Nor do we know how the tribal tribunal 

would have balanced the interests at stake here if exhaustion had run its 

course.

11 The dissent apparently disagrees with our precedents in this area. 

But we as a three-judge panel are bound by those precedents absent an 

intervening irreconcilable Supreme Court decision. See Miller v. 

Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc). The dissent 

points to no such Supreme Court decision. Indeed, every Supreme Court 

case that the dissent discusses was decided before Water Wheel and 

Grand Canyon and thus cannot be described as an intervening decision. 

The dissent refers without citation to “all existing authority” that 

establishes that when “there are competing state interests at stake, tribal 

jurisdiction over nonmembers only exists if at least one of the two 

Montana exceptions is satisfied.” We are unaware of any such authority 

from our court or the Supreme Court.
22 WINDOW ROCK USD V. NEZ

law enforcement because the only issue here is whether 

jurisdiction is colorable or plausible under our current 

precedent.

A.

The 1868 treaty that established the Navajo Reservation 

makes clear that the Navajo Nation has the right to exclude 

nonmembers from the land on which the Districts’ schools 

are now located. Article II of the treaty defines the 

reservation’s boundaries and contains an “exclusion” clause:

[T]he United States agrees that no persons 

except those herein so authorized to do, and 

except such officers, soldiers, agents, and 

employe[e]s 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 

Tribe of Indians, Navajo Tribe of Indians-U.S., art. II, June 

1, 1868, 15 Stat. 667. In Article VI of the treaty, the Navajo 

tribe agreed “to compel their children . . . to attend school,” 

and the United States committed to providing teachers who 

would “reside among” the tribe. Although this provision 

suggests that the Navajo Nation may have waived its right to 
WINDOW ROCK USD V. NEZ 23

exclude federal teachers and schools, it says nothing about 

the Navajo Nation’s authority to exclude state officials.12

Indeed, interpreting that treaty in a case involving 

Arizona’s right to tax Navajo tribe members on tribal land, 

the Supreme Court held that “it cannot be doubted that the 

reservation of certain lands for the . . . Navajos and the 

exclusion of non-Navajos from . . . [those lands] was meant 

to establish the lands as within the exclusive sovereignty of 

the Navajos.” McClanahan v. State Tax Comm’n of Ariz., 

411 U.S. 164, 174–75 (1973). Absent explicit congressional 

action to modify or eliminate tribal rights granted by a treaty, 

those rights remain. See South Dakota v. Yankton Sioux 

Tribe, 522 U.S. 329, 343 (1998) (“Congress possesses 

plenary power over Indian affairs, including the power to 

modify or eliminate tribal rights. Accordingly, only 

Congress can alter the terms of an Indian treaty by 

diminishing a reservation, and its intent to do so must be 

‘clear and plain.’” (citations omitted) (quoting United States 

v. Dion, 476 U.S. 734, 738–39 (1986))).

Thus, as the treaty makes clear, the land at issue here is 

“within the exclusive sovereignty of the Navajos,” and from 

this sovereignty, regulatory and adjudicative authority 

follow. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 

144–45 (1982); Strate v. A-1 Contractors, 520 U.S. 438, 453 

(1997).

 12 The dissent states that Arizona “became subject to the Treaty’s 

specific requirement of government schools on Indian land” without 

citing any authority for that proposition. As discussed infra, the 

Enabling Act required Arizona to establish a system of public education, 

but it said nothing about Arizona taking over the federal government’s 

treaty relationship with the Navajo, as the dissent seems to suggest.
24 WINDOW ROCK USD V. NEZ

The Districts argue, however, that the treaty is not broad 

enough to support jurisdiction over state school districts. 

Instead, according to the Districts, the treaty protects only 

the Navajo Nation’s authority over tribal lands and internal 

affairs. But it is at least plausible that the Tribe has 

adjudicative jurisdiction here because the conduct occurred 

on tribal land, where the Navajo Nation has the right to 

exclude. See McClanahan, 411 U.S. at 174 (“[T]his Court 

in interpreting Indian treaties, [has] adopt[ed] the general 

rule that ‘[d]oubtful expressions are to be resolved in favor 

of [the Tribe].’” (third alteration in original) (quoting 

Carpenter v. Shaw, 280 U.S. 363, 367 (1930))).

The Districts next argue that whatever rights the treaty 

originally preserved for the Navajo Nation, Congress 

eliminated the Nation’s right to exclude, and thus its 

regulatory and adjudicative authority, by enacting the New 

Mexico-Arizona Enabling Act (the “Enabling Act”), ch. 310, 

36 Stat. 557 (1910). The Enabling Act authorized the 

creation of the State of Arizona, and it required, as a 

condition of admission to the United States, the adoption of 

a constitution requiring the establishment and maintenance 

of a public school system. Id. at 570. It also specifically 

mandated that “the schools, colleges, and universities 

provided for in this Act shall forever remain under the 

exclusive control of the said State.” Id. at 573–74. The 

Districts argue that, under this congressional enactment, 

even schools located on tribal land must remain under the 

exclusive control of the State, including for purposes of 

adjudicative jurisdiction. But “courts will not lightly assume 

that Congress in fact intends to undermine Indian selfgovernment.” Michigan v. Bay Mills Indian Cmty., 134 S. 

Ct. 2024, 2032 (2014). And nothing in the Enabling Act 

specifically addresses state schools on tribal land. In fact, 

the Enabling Act required Arizona, as a condition of 
WINDOW ROCK USD V. NEZ 25

admission, to disclaim any right to tribal land within its 

boundaries. See 36 Stat. at 569. Thus there are at least 

colorable arguments on both sides of the question whether 

the Enabling Act eliminated the Nation’s right to exclude. 

The Districts’ argument is therefore not strong enough to 

render tribal jurisdiction implausible.

The Districts further argue that Congress abrogated the 

treaty when it authorized, with the Navajo Nation’s consent, 

enforcement of state compulsory school attendance laws. 

But this argument likewise fails to demonstrate that tribal 

jurisdiction is clearly lacking. It is true that Congress 

authorized state officials to enter tribal land for the limited 

purpose of enforcing compulsory school attendance laws, 

and that the Navajo Nation consented to the enforcement on 

tribal land of such laws. See Act of Feb. 15, 1929, ch. 216, 

45 Stat. 1185; Act of Aug. 9, 1946, ch. 930, 60 Stat. 962 

(amending the Act of Feb. 15, 1929); 10 Navajo Nation Code 

§ 503. But, beyond officers enforcing truancy laws, such 

authorization and consent do not abrogate the right to 

exclude state public schools and their employees more 

generally—or the regulatory and adjudicative jurisdiction 

attendant to that right. Indeed, the fact that the Districts had 

to sign leases with the Navajo Nation to operate schools on 

Navajo land suggests that the Navajo Nation maintains the 

right to exclude state schools.

Furthermore, the leases themselves cannot be understood 

as a surrender of tribal jurisdiction. “[U]nless expressly 

waived ‘in unmistakable terms’ within [a] contract, a tribe 

retains its inherent sovereignty, and as such, the tribe may 

have jurisdiction.” Grand Canyon Skywalk Dev., LLC v. 

‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1205 (9th Cir. 2013) 

(quoting Merrion, 455 U.S. at 148). Neither lease “expressly 

waive[s] in unmistakable terms” tribal jurisdiction. Window 
26 WINDOW ROCK USD V. NEZ

Rock’s lease requires the school district to abide by Navajo 

laws, to the extent that they do not conflict with Arizona or 

federal law, and it further provides that the agreement to 

abide by Navajo laws does not forfeit any rights under state 

or federal laws. Pinon’s lease does not mention Navajo law 

or jurisdiction. At most, the Window Rock and Pinon leases 

are ambiguous as to their effect on tribal jurisdiction, which 

leads us to conclude that tribal jurisdiction is not plainly 

lacking.13 

B.

The Districts argue in the alternative that Arizona’s 

interest in this case is important enough that Hicks applies to 

deprive the tribal courts of jurisdiction. But as discussed 

above, our court has taken Hicks at its word that its “holding 

. . . is limited to the question of tribal-court jurisdiction over 

state officers enforcing state law.” Nevada v. Hicks, 

533 U.S. 353, 358 n.2 (2001). Because “the specific 

concerns at issue in that case,” Water Wheel Camp 

Recreational Area, Inc. v. LaRance, 642 F.3d 802, 813 (9th 

Cir. 2011), are not present here, it is at least plausible that 

tribal jurisdiction exists. Exhaustion is therefore required.

Our conclusion is bolstered by National Farmers Union 

Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845 

(1985). There, a tribal member student was injured at a 

 13 Although the employment contracts of two employees state that 

jurisdiction for matters arising out of the contract lie with Arizona state 

courts and federal courts, most of the contracts provided only that the 

employees agreed to abide by state and federal law and were silent as to 

the laws that would govern the contractual relationship and as to where 

disputes about the employment relationship would be litigated. Most of 

the contracts, including Michael Coonis’s, see n.2 supra, lack any 

provisions that even arguably bear on the tribal jurisdiction question.
WINDOW ROCK USD V. NEZ 27

school on state land within the boundaries of an Indian 

reservation. Id. at 847. The Supreme Court required tribal 

court exhaustion in the resulting tort suit. See id. at 847, 

856–57. This case arguably presents even stronger reasons 

to require tribal court exhaustion, because, unlike the school 

in National Farmers, the schools operated by the Districts 

are located on tribal land, not state-owned land.

In sum, because the conduct at issue here occurred on 

tribal land over which the Navajo Nation has the right to 

exclude nonmembers, and because state criminal law 

enforcement interests are not present, we hold that tribal 

jurisdiction is at least colorable or plausible and that 

exhaustion in the tribal forum is therefore required.

CONCLUSION

For the foregoing reasons, we REVERSE the grant of 

summary judgment and REMAND to the district court with 

instructions to DISSOLVE the injunction and DISMISS the 

case for failure to exhaust.
28 WINDOW ROCK USD V. NEZ

CHRISTEN, Circuit Judge, dissenting:

The opinion issued today creates a circuit split and is 

notable for what it leaves out. First, the majority does not 

explain that, before they filed claims in tribal court, five out 

of the seven employee claimants had already received 

adverse state-court rulings on their claims against the school 

districts. The majority also overlooks that two of the 

employee claimants had employment contracts specifying 

that jurisdiction for any employment disputes would 

exclusively lie in state or federal court. The majority 

nominally recognizes the pathmarking case on tribal 

jurisdiction over nonmembers, Montana v. United States, 

450 U.S. 544 (1981), only to flip its seminal holding. 

Montana, and the Supreme Court authority that followed it, 

make clear that the inherent sovereign powers of Indian 

tribes generally do not extend to the activities of 

nonmembers. See Nevada v. Hicks, 533 U.S. 353, 358–59 

(2001).

The majority takes refuge primarily in two entirely 

distinguishable cases from our circuit, Water Wheel Camp 

Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 

2011) (per curiam), and Grand Canyon Skywalk 

Development, LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196 (9th 

Cir. 2013), which purport to limit Montana’s framework to 

cases where there are competing state interests. Water 

Wheel and Grand Canyon are already recognized as outliers, 

but the majority goes much farther, striking out on its own 

and holding that unless a state is seeking to enforce its 

criminal laws, Montana does not apply to nonmember 

conduct on tribal land even in the presence of clear 

competing state interests.

Finally, in my view, the majority gives short shrift to the 

school districts’ obligation to operate public schools within 
WINDOW ROCK USD V. NEZ 29

the Navajo Reservation’s boundaries, treating Window Rock 

and Pinon Unified School Districts as private parties 

engaged in consensual, private-sector contractual 

relationships on the Navajo Reservation. In fact, the districts 

are non-tribal-member political subdivisions of the State of 

Arizona with statutory and state constitutionally imposed 

mandates to provide a uniform public school system to all 

Arizona’s children. For these reasons, tribal jurisdiction 

over these consolidated disputes is neither colorable nor 

plausible, and I must respectfully dissent.

BACKGROUND

This appeal addresses seven cases consolidated by the 

Navajo tribal court, the Navajo Nation Labor Commission.1 

The claimants are not similarly situated. The first four, 

Loretta Brutz, Mae John, and Ann and Kevin Reeves, are 

employees of Window Rock Unified School District. 

Respectively, they work as a speech therapist and 

pathologist, a speech language pathologist, a school 

psychologist, and a physical therapist. None of them are 

certified teachers. Brutz and John are members of the 

Navajo Nation; Ann and Kevin Reeves are not. These four 

claimants (the Brutz claimants) filed a complaint in state 

superior court challenging Window Rock’s determination 

that they are not entitled to the merit pay that Arizona’s 

public school teachers receive pursuant to Arizona’s 

Proposition 301. See Ariz. Rev. Stat. § 15-977(A), (B). The 

state superior court agreed with the school district that nonteachers are not entitled to Proposition 301 merit pay, and 

 1 The tribal court consolidated the separately filed complaints of 

Loretta Brutz, Mae John, and Ann and Kevin Reeves in 2009. The tribal 

court later consolidated these complaints with those of Michael Coonis, 

Clarissa Hale, and Barbara Beall.
30 WINDOW ROCK USD V. NEZ

the Arizona Court of Appeals affirmed that decision. See 

Reeves v. Barlow, 251 P.3d 417 (Ariz. Ct. App. 2011). 

Rather than seek review in the Arizona Supreme Court, the 

Brutz claimants pressed their argument for teacher merit pay 

by filing new complaints, this time in tribal court.

The next two claimants, Michael Coonis and Clarissa 

Hale, are members of the Navajo Nation and former 

employees of Window Rock. Coonis and Hale allege that 

Window Rock violated the Navajo Preference in 

Employment Act (NPEA).2 They contend that Window 

Rock failed to promote them to positions for which they 

were the most qualified Navajos. After filing employment 

charges with the Office of Navajo Labor Relations (ONLR), 

Coonis and Hale filed complaints with the tribal court.

The final claimant, Barbara Beall, is a member of the 

Navajo Nation and a former employee of Pinon Unified 

School District. Pinon terminated Beall for unprofessional 

conduct and continual and repeated failure to comply with 

school-district policies. Beall appealed her termination to a 

state administrative hearing officer, and lost. Instead of 

filing an appeal in superior court, Beall filed an employment 

charge with the ONLR and a complaint in tribal court. Both 

allege that Pinon violated the NPEA by firing Beall without 

just cause.

All seven claimants signed employment contracts with 

the school districts agreeing to abide by applicable laws of 

the United States and the State of Arizona, as well as the 

 2 The NPEA requires employers to give preference in employment 

to Navajos and dictates that employers may not fire Navajo employees 

without just cause. See 15 Navajo Nation Code §§ 601, et seq.
WINDOW ROCK USD V. NEZ 31

State Board of Education’s policies, rules, and regulations. 

Hale’s and Beall’s contracts further specified that “Arizona 

State and federal courts shall exercise exclusive jurisdiction 

over any and all matters arising out of this contract.”3

In tribal court, Window Rock and Pinon filed motions to 

dismiss these claims for lack of tribal-court jurisdiction, 

giving the tribal court first crack at resolving this 

jurisdictional dispute. Without ruling on the motion to 

dismiss, the tribal court consolidated the employees’ claims, 

and ordered an evidentiary hearing for the school districts to 

present detailed evidence concerning the history of 

government-to-government compacts between the Navajo 

Nation and the State of Arizona and the ethnic composition 

of the districts. Only then did the school districts file this 

action in federal court seeking to enjoin the tribal-court 

proceedings and arguing that exhaustion was not required 

because the tribal court plainly lacked jurisdiction. The 

school districts named as defendants the seven claimants 

identified above, and members of the tribal court assigned to 

the consolidated case.

In federal court, the defendants filed a motion to dismiss, 

and the school districts filed a motion for summary 

judgment. The district court granted Window Rock and 

Pinon’s motion for summary judgment. In doing so, the 

court began with the touchstone authority concerning tribal-

 3 By providing this background, I do not suggest that the merits of 

the claimants’ disputes with the school districts are before us. The nature 

of the claims, not the merits of the claims, gives context to the 

jurisdictional question we must decide. It also shows that: (1) several of 

the claimants are actually challenging the jurisdiction of the state courts

that already rendered verdicts on the same claims they raise here; and 

(2) unlike many cases involving challenges to tribal jurisdiction, comity 

concerns in this case weigh heavily against exhaustion.
32 WINDOW ROCK USD V. NEZ

court jurisdiction over non-tribal members, Montana v. 

United States, 450 U.S. 544 (1981). The court recognized 

that Montana’s general rule governed these claims due to 

“the state’s considerable interest, arising from outside of the 

reservation, in providing for a general and uniform public 

education.” The court considered Montana’s two 

exceptions, but decided that neither of them established 

tribal jurisdiction over these employment-related disputes 

between the school districts and their present and former 

employees, and that further factual development was not 

necessary because tribal jurisdiction was plainly lacking. 

The panel majority reverses, deciding that tribal-court 

jurisdiction is plausible and exhaustion is thus required.4 I 

would affirm the district court’s ruling in all respects.

DISCUSSION

I. Although Indian Tribes Retain Inherent Sovereign 

Powers, They Do Not Possess the Full Attributes of 

Sovereignty.

“Indian tribes are ‘unique aggregations possessing 

attributes of sovereignty over both their members and their 

territory.’” Montana, 450 U.S. at 563 (quoting United States 

v. Wheeler, 435 U.S. 313, 323 (1978), superseded by statute 

on other grounds as recognized in United States v. Lara, 

541 U.S. 193, 199–207 (2004)). They possess inherent 

 4 The majority describes several reasons behind the policy favoring 

exhaustion, see Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 

471 U.S. 845, 856–57 (1985), but does not explain why the policy 

weighs in favor of exhaustion in this case. Strate v. A–1 Contractors, 

520 U.S. 438, 450 (1997), makes clear that the exhaustion preference is 

based on prudential considerations and is not required if tribal 

jurisdiction is plainly lacking. See id. at 450–51. This inquiry is highly 

case specific.
WINDOW ROCK USD V. NEZ 33

“powers of self-government.” 25 U.S.C. § 1301. “Thus, in 

addition to the power to punish tribal offenders, the Indian 

tribes retain their inherent power to determine tribal 

membership, to regulate domestic relations among 

members, and to prescribe rules of inheritance for 

members.” Montana, 450 U.S. at 564. Tribes “may also 

exclude outsiders from entering tribal land,” Plains 

Commerce Bank v. Long Family Land & Cattle Co., 

554 U.S. 316, 328 (2008), and “place conditions on entry, on 

continued presence, or on reservation conduct, such as a tax 

on business activities conducted on the reservation,” 

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144 (1982). 

Tribes retain these inherent sovereign powers in the absence 

of contrary treaties or federal statutes. See Nevada v. Hicks, 

533 U.S. 353, 365 (2001).

But “Indian tribes are . . . no longer ‘possessed of the full 

attributes of sovereignty.’” Wheeler, 435 U.S. at 323 

(quoting United States v. Kagama, 118 U.S. 375, 381 

(1886)). “Their incorporation within the territory of the 

United States, and their acceptance of its protection, 

necessarily divested them of some aspects of the sovereignty 

which they had previously exercised.” Id. “[E]xercise of 

tribal power beyond what is necessary to protect tribal selfgovernment or to control internal relations . . . cannot survive 

without express congressional delegation.” Montana, 

450 U.S. at 564.

II. Tribal Jurisdiction Generally Does Not Extend to 

Non-Tribal Members.

The panel majority concludes that absent contrary 

treaties or federal statutes, Indian tribes’ inherent sovereign 

right to exclude generally affords tribal-court jurisdiction 

over nonmember conduct on tribal land. Not so. Supreme 

Court precedent and our own case law makes clear that at 
34 WINDOW ROCK USD V. NEZ

least where there are competing state interests, tribes 

generally lack jurisdiction over the conduct of non-tribal 

members within the boundaries of a reservation, regardless 

of the status of the land on which nonmember conduct 

occurs.

In Montana v. United States, the Supreme Court 

addressed whether the Crow Tribal Council had jurisdiction 

to regulate non-Indian hunting and fishing on non-Indian 

land located within the Crow Reservation.5 450 U.S. at 547. 

Finding no treaties or statutes that conferred tribal authority 

to regulate such conduct on non-Indian land within the 

reservation, the Supreme Court discussed whether such 

regulatory authority existed by virtue of the Crow Tribe’s 

inherent sovereign authority. Id. at 557–66. The Supreme 

Court stated that as a “general proposition[,] . . . the inherent 

sovereign powers of an Indian tribe do not extend to the 

activities of nonmembers of the tribe.” Id. at 565. “[T]he 

Indian tribes have lost any ‘right of governing every person 

within their limits except themselves.’” Id. (quoting 

Fletcher v. Peck, 10 U.S. 87, 147 (1810)).

The Montana Court nonetheless articulated two 

exceptions to the general rule of no tribal jurisdiction over 

nonmembers: (1) “[a] tribe may regulate, through taxation, 

 5 The State of Montana owned this land in fee simple. See Montana, 

450 U.S. at 547–48, 556. Reservation land generally falls into three 

categories: (1) unallotted lands held in trust by the United States for the 

Tribe; (2) allotted land held in trust by the United States for individual 

Indians; and (3) fee lands now owned by non-Indians. See id. at 458; see

also Big Horn Cty. Elec. Co-op., Inc. v. Adams, 219 F.3d 944, 948 (9th 

Cir. 2000) (“There is a checkerboard pattern of land ownership on the 

Reservation composed of fee land owned by non-Indians and members 

of the Tribe and trust land held by the United States in trust for the 

Tribe.”).
WINDOW ROCK USD V. NEZ 35

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”; and (2) “[a] tribe may also retain inherent

power to exercise civil authority over the conduct of nonIndians 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 tribes.” 

Id. at 565–66. The Supreme Court then held that regulating 

non-Indian hunting and fishing on non-Indian land did not 

fall into either exception and, as such, was not within the 

Crow Tribe’s jurisdiction. Id. at 566.

Montana was directed at tribal regulatory authority, but 

in Strate v. A–1 Contractors, the Supreme Court extended 

Montana’s rule to tribal adjudicative authority. 520 U.S. 

438, 442 (1997). Strate arose when two non-Indians were 

involved in a car accident on a highway that crossed the Fort 

Berthold Indian Reservation in North Dakota. Id. at 442–43. 

The state operated the highway pursuant to a federally 

granted right of way, but the tribal court determined it had 

jurisdiction to hear a suit for damages between the drivers, 

one driver’s employer, and the employer’s insurer. Id. at 

443–44. The tribal-court defendants sued in federal court to 

enjoin the tribal-court proceedings, id. at 444, eventually 

leading to the Supreme Court’s first statement that while 

Montana applies to questions of tribal adjudicative 

jurisdiction, “[a]s to nonmembers, . . . a tribe’s adjudicative 

jurisdiction does not exceed its legislative jurisdiction,” id. 

at 453. Applying this holding to the accident in Strate, the 

Court held that neither Montana exception afforded tribalcourt jurisdiction over “run-of-the-mill” car-accident suits 

occurring on state-operated highways. Id. at 456–59.
36 WINDOW ROCK USD V. NEZ

In these decisions, the Supreme Court broadly stated the 

general rule of no tribal jurisdiction over nonmembers, but 

the Court only had occasion to apply the rule to conduct on 

land owned or controlled by non-Indians. That changed in 

Nevada v. Hicks, where the Supreme Court addressed tribalcourt jurisdiction over a claim for damages arising from a 

state game warden’s service of process on tribal land. 

533 U.S. 353, 356–57 (2001). In Hicks, Nevada state game 

wardens allegedly damaged property of tribal member Floyd 

Hicks and exceeded the bounds of a search warrant while 

searching Hicks’ home for evidence that he unlawfully killed 

a bighorn sheep off the reservation. Id. The Supreme Court 

held that the tribal court did not have jurisdiction over Hicks’ 

civil claims against the state game wardens. Id. at 364–69.

The Hicks Court further held that the State of Nevada 

was not required to exhaust tribal remedies before bringing 

its jurisdictional challenge in federal court because the tribal 

court plainly lacked jurisdiction. Id. at 369. The decision 

expressly extended Montana’s general rule of no tribal 

jurisdiction to non-Indian conduct on Indian land. Id. at 360 

(stating that “the general rule of Montana applies to both 

Indian and non-Indian land” and “[t]he ownership status of 

the land . . . is only one factor to consider”). The Court was 

clear that its ruling did not contravene “the principle that 

Indians have the right to make their own laws and be 

governed by them,” but equally clear that this right must be 

balanced against the State’s “interests outside the 

reservation.” Id. at 362.

The Supreme Court reaffirmed the Hicks holdings in 

Plains Commerce Bank v. Long Family Land & Cattle Co., 

554 U.S. 316 (2008). Plains Commerce Bank involved 

allegations that a non-Indian bank sold fee land that it owned 

on a reservation to non-Indians under terms that were more 
WINDOW ROCK USD V. NEZ 37

favorable than terms the bank offered to an Indian couple. 

See id. at 320–24. The couple sued the bank for 

discrimination in tribal court, and they were awarded a 

$750,000 general verdict. Id. at 323. The bank sought a 

declaratory judgment in federal district court that the tribal 

judgment was null and void due to lack of jurisdiction over 

the couple’s discrimination claim. Id. Applying Montana, 

the Supreme Court agreed with the bank. Id. at 324.

The Court began its analysis with the principle that 

“tribes do not, as a general matter, possess authority over 

non-Indians who come within their borders.” Id. at 328. The 

Supreme Court reiterated that although this principle applies 

with particular strength to “non-Indian fee land,” the 

ownership of the land is just one factor, and tribal authority 

over nonmember conduct on all land within a reservation is 

restricted. See id. at 327–28. Plains Commerce Bank

recognized the continuing validity of the two Montana

exceptions, but held that neither exception conferred 

jurisdiction on the tribal court under the facts of that case. 

Id. at 329–30, 340–41.6

 6 The panel majority relies heavily on the fact that the school 

districts are located on tribal land, whereas the conduct in Plains 

Commerce Bank occurred on non-Indian fee land. Boiled down, the 

majority announces a rule that tribal jurisdiction is plausible any time 

nonmember conduct occurs on tribal land unless state criminal law

enforcement interests are implicated. (“But it is at least plausible that 

the Tribe has adjudicative jurisdiction here because the conduct occurred 

on tribal land, where the Navajo Nation has the right to exclude.”). In 

doing so, the majority overlooks the general directives in Plains 

Commerce Bank. “[T]he inherent sovereign powers of an Indian tribe 

do not extend to the activities of nonmembers of the tribe.” 554 U.S. at 

328 (alteration in original) (quoting Montana, 450 U.S. at 565). “This 

general rule restricts tribal authority over nonmember activities taking 

place on the reservation, and is particularly strong when the 
38 WINDOW ROCK USD V. NEZ

Our court has recognized that, apart from the two 

Montana exceptions, “the tribes’ inherent sovereignty does 

not give them jurisdiction to regulate the activities of 

nonmembers.” See Philip Morris USA, Inc. v. King 

Mountain Tobacco Co., 569 F.3d 932, 938–39 (9th Cir. 

2009) (“As a general rule, tribes do not have jurisdiction, 

either legislative or adjudicative, over nonmembers, and 

tribal courts are not courts of general jurisdiction.”). But in 

two recent cases, our circuit case law purports to limit 

Montana’s expansive general rule: Water Wheel Camp 

Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 

2011) (per curiam), and Grand Canyon Skywalk 

Development, LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196 (9th 

Cir. 2013).

In Water Wheel, our court considered a dispute arising 

from the lease of a resort located on land held in trust by the 

United States for the Colorado River Indian Tribes. 642 F.3d 

at 805. After leasing the land for twenty-five years, the 

resort stopped making the required lease payments to the 

Tribes but continued to operate essentially rent-free for 

another seven years. Id. The resort operators refused to 

vacate the land even after the lease expired, so the Tribes 

sued to evict the resort operator, collect unpaid rent, and 

recover damages for their lost use of the property. Id.

It was in this context that our court stated, “[Hicks’s] 

application of Montana to a jurisdictional question arising 

on tribal land should apply only when the specific concerns 

at issue in that case exist. Because none of those 

circumstances exist here, we must follow precedent that 

 

nonmember’s activity occurs on land owned in fee simple by nonIndians . . . .” Id. (emphasis added). 
WINDOW ROCK USD V. NEZ 39

limits Montana to cases arising on non-Indian land.” Id. at 

813. Water Wheel went on:

In this instance, where the non-Indian activity 

in question occurred on tribal land, the 

activity interfered directly with the [T]ribe’s 

inherent powers to exclude and manage its 

own lands, and there are no competing state 

interests at play, the [T]ribe’s status as 

landowner is enough to support regulatory 

jurisdiction without considering Montana.

Id. at 814 (emphasis added). Water Wheel did not precisely 

identify what it meant by the “specific concerns” at issue in 

Hicks that warranted application of Montana’s general rule 

to jurisdictional questions arising on tribal land, but it did 

expressly recognize that “competing state interests” would 

change the analysis. There were no competing state interests 

in Water Wheel, and the court concluded that the Tribes had 

both regulatory and adjudicative jurisdiction over the resort 

operator’s conduct. See id. at 816.

Notably, Water Wheel also concluded that Montana’s 

two exceptions would allow for jurisdiction over the Tribes’ 

dispute with the resort operator. Id. at 816–19. In particular, 

the second Montana exception established tribal jurisdiction 

over the Tribes’ trespass claim because the resort operator’s 

“unlawful occupancy and use of tribal land not only deprived 

[the Tribes’] of [their] power to govern and regulate [their] 

own land, but also of [their] right to manage and control an 

asset capable of producing significant income.” Id. at 819. 

In keeping with Hicks’ admonition that land ownership 

status “may sometimes be a dispositive factor,” see Hicks, 

533 U.S. at 360, Water Wheel concluded that the Tribes’ 

assertion of jurisdiction was proper in light of their 
40 WINDOW ROCK USD V. NEZ

significant interest in securing occupancy and control of 

tribal land and the absence of competing state interests, 

642 F.3d at 819.

In Grand Canyon, our court considered a situation 

similar to Water Wheel. Grand Canyon involved the glassbottomed “Skywalk,” a viewing platform overlooking the 

Grand Canyon built on land held in trust for the Hualapai 

Tribe. 715 F.3d at 1198–99. A non-tribal developer, Grand 

Canyon Skywalk Development, entered into a revenue 

sharing agreement with a tribal corporation in order to build 

and operate the Skywalk, and the Tribe later passed a 

resolution to exercise eminent domain over the developer’s 

contractual interests. Id. at 1199.

Alleging that the Tribe had no authority to condemn its 

private contract rights, the developer filed a motion for a 

temporary restraining order in district court seeking to enjoin 

the eminent domain action. Id. Grand Canyon held that the 

developer was required to exhaust its remedies in tribal 

court. See id. at 1203–04. In so ruling, the court looked to 

Water Wheel and noted that, as in Water Wheel, Grand 

Canyon involved a non-tribal-member who entered into a 

consensual agreement “to develop and manage a tourist 

location on tribal land in exchange for a fee” and “it was 

access to the valuable tribal land that was the essential basis 

for the agreement.” Id. at 1204. Grand Canyon reasoned, 

“as the dispute centers on Hualapai trust land and there are 

no obvious state interests at play, the Hicks exception is 

unlikely to require Montana’s application. At the very least, 

it cannot be said that the tribal court plainly lacks 

jurisdiction.” Id. at 1205 (emphasis added). Like Water 

Wheel, Grand Canyon concluded that the Montana

exceptions, if applied, would also provide for tribal 

jurisdiction. Id. at 1205–06.
WINDOW ROCK USD V. NEZ 41

The results in Water Wheel and Grand Canyon were a 

function of the Tribes’ significant interests in managing 

exceptionally valuable tribal land and the lack of any 

competing state interests. See, e.g., Water Wheel, 642 F.3d 

at 814 (emphasizing that “the activity interfered directly with 

the [T]ribe’s inherent powers to exclude and manage its own 

lands, and there are no competing state interests at play”). 

Nevertheless, our court’s narrow interpretation of Hicks and 

Montana has been criticized. The dissent in Dolgencorp, 

Inc. v. Mississippi Band of Choctaw Indians observed, “Both 

the Choctaw Supreme Court and the district court a quo have 

ruled, in light of dicta in Hicks and Plains Commerce Bank, 

that the Ninth Circuit’s narrow application of Montana is 

incorrect, a ruling that the tribal defendants do not 

challenge.” 746 F.3d 167, 180 n.8 (5th Cir. 2014) (Smith, 

J., dissenting), aff’d by an equally divided court sub nom. 

Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S. 

Ct. 2159 (2016) .7 And in Stifel, Nicolaus & Co. v. Lac du 

Flambeau Band of Lake Superior Chippewa Indians, the 

Seventh Circuit expressed its view that Water Wheel’s 

reasoning cannot be reconciled “with the language that the 

Court employed in Hicks and Plains Commerce Bank.” 

807 F.3d 184, 207 n.60 (7th Cir. 2015). But even assuming 

Water Wheel and Grand Canyon correctly interpreted Hicks

to mean that Montana need not be applied in every case 

involving tribal land, all existing authority points to the rule 

that when there are no contrary treaties or statutes and there 

 7 The majority in Dolgencorp applied Montana and held that the 

Tribe had jurisdiction over a nonmember based on the first Montana

exception. See 746 F.3d at 169. The dissent agreed that Montana

applied, but disagreed with the majority’s conclusion that the tribe had 

met the requirements of the first exception. See id. at 177–80 (Smith, J., 

dissenting).
42 WINDOW ROCK USD V. NEZ

are competing state interests at stake, tribal jurisdiction over 

nonmembers only exists if at least one of the two Montana

exceptions is satisfied.8

III. The Tribe Does Not Have the Right to Exclude 

Nonmember School Districts from the 

Reservation.

The panel majority further errs by concluding that the 

Treaty of 1868 secured the Navajo Nation’s unqualified right 

to exclude the school districts, and by disregarding the 

compelling state interests at play here. The Treaty of 1868 

carved out and reserved specific rights for the Navajo 

Nation. By virtue of its inherent tribal sovereignty, the 

Navajo Nation also retained other rights necessary to selfgovernment and control of internal relations, see Strate v. A–

1 Contractors, 520 U.S. 438, 445–46 (1997) (discussing 

what powers the tribes retain), but the right to exclude 

nonmember school districts from the Navajo Reservation is 

not among them.9

 8 The panel majority states that neither Water Wheel nor Grand 

Canyon decided that Montana applies where there are competing state 

interests, only that Montana does not apply where there are no competing 

state interests. But both decisions skirt Montana and Hicks based on the 

lack of competing state interests and both acknowledge that Montana

would otherwise be the rule. See Water Wheel, 642 F.3d at 804–05; see 

also Grand Canyon, 715 F.3d at 1205 (“Here, as the dispute centers on 

Hualapai trust land and there are no obvious state interests at play, the 

Hicks exception is unlikely to require Montana’s application.” (emphasis 

added)).

9 Defendants argue that the school districts may be tribal members 

for purposes of responding to employment claims in tribal court because 

tribal members sit on the school district boards. But this argument 
WINDOW ROCK USD V. NEZ 43

A. The Tribe Ceded Any Inherent Right to Exclude 

the School Districts from the Reservation.

“[A] portion of what had once been [the Navajo 

Nation’s] native country” was set apart as the Navajo 

people’s “permanent home” by the Treaty of 1868. Williams 

v. Lee, 358 U.S. 217, 221 (1959). Article II of the Treaty 

“provided that no one, except United States Government 

personnel, was to enter the reserved area.” Id. According to 

Article II:

[T]he United States agrees 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 

Tribe of Indians, Navajo Tribe of Indians-U.S. (Treaty of 

1868), art. II, June 1, 1868, 15 Stat. 667. Though the 

majority suggests otherwise, this provision does not grant 

the Navajo Nation an absolute right to exclude. In fact, the 

Treaty of 1868 expressly allows for entry of federal 

government agents for various purposes and specifically 

obligates the government to provide compulsory education 

of Navajo children in schoolhouses created by the 

government, by schoolteachers furnished by the government 

 

disregards Arizona law. See Ariz. Rev. Stat. § 15-101(23) (“‘School 

district’ means a political subdivision of this state . . . .”).
44 WINDOW ROCK USD V. NEZ

and “resid[ing] among” the Tribe. See Treaty of 1868, 

art. VI.

When the Treaty of 1868 was executed, the State of 

Arizona did not exist, but Arizona took on the obligation to 

provide compulsory education to Navajo children as a 

condition of Arizona’s statehood. In the Arizona Enabling 

Act, Congress mandated that Arizona shall establish and 

maintain “a system of public schools[,] which shall be open 

to all the children of [Arizona],” Act of June 20, 1910, ch. 

310, 36 Stat. 557, 570 (1910), and that this public school 

system “shall forever remain under [Arizona’s] exclusive 

control,” id. at 573–74. In its constitution, Arizona both 

agreed to disclaim all rights to Indian land within its 

boundaries, Ariz. Const. art. XX, § 4, and affirmed its 

obligation to provide a system of public schools “open to all 

the children of the state,” id. § 7.

In 1929, Congress authorized “the agents and employees 

of any State to enter upon Indian tribal lands, reservations, 

or allotments therein . . . to enforce the penalties of State 

compulsory school attendance laws against Indian children[] 

and parents.” Act of Feb. 15, 1929, ch. 216, 45 Stat. 1185. 

Congress amended the act in 1946 to require tribal consent 

to such entry, see Act of Aug. 9, 1946, ch. 930, 60 Stat. 962, 

and the Navajo Nation consented, see 10 Navajo Nation 

Code § 503. Nothing in subsequent legislation, see Indian 

Self-Determination and Education Assistance Act, 

25 U.S.C. § 5301 (1975), relieved Arizona of its obligation 

to provide a uniform, statewide system of public education.

The panel majority does not acknowledge that the State 

of Arizona became subject to the Treaty’s specific 

requirement of providing government schools on Indian 

land. Nor does it consider that the school districts are 

political subdivisions of the State of Arizona, present within 
WINDOW ROCK USD V. NEZ 45

the Navajo Nation for the purpose of carrying out the 

expressly contemplated function of educating Navajo 

children. The panel majority reasons that the Navajo Nation 

generally retained its right to exclude after signing the Treaty 

of 1868, but it offers no support for its conclusion that the 

Tribe may exclude school districts where, as here, the state 

officials are performing a governmental function on tribal 

land pursuant to a congressional mandate with tribal consent.

The holding in Strate v. A–1 Contractors, 520 U.S. 438 

(1997), is instructive in this context. In that case, a car crash 

involving non-Indians occurred on a highway over land that 

the United States held in trust for the Three Affiliated Tribes. 

Id. at 442–43. The State of North Dakota operated and 

maintained the highway pursuant to a federally granted 

right-of-way. Id. With the Tribes’ consent, Congress gave 

the right-of-way to North Dakota to ensure access to a 

federal water-resource project controlled by the Army Corps 

of Engineers. Id. at 454–56. Given these circumstances, the 

Supreme Court held that the highway was the “equivalent, 

for nonmember governance purposes, to alienated, nonIndian land,” over which “the Tribes [could not] assert a 

landowner’s right to occupy and exclude.” Id. at 454, 456; 

see also Cty. of Lewis v. Allen, 163 F.3d 509, 514 (9th Cir. 

1998) (en banc) (holding that the Nez Perce Tribe ceded the 

right to exclude county law enforcement officers by 

“consenting to and receiving the benefits of state law 

enforcement protection”). So too here. Like the tribe in 

Strate, the Navajo Nation has ceded the right to exclude the 

school districts from the Navajo oftlineReservation by: 

(1) expressly agreeing that the federal government must 

enter to provide a system of compulsory education for 

Navajo children; and (2) consenting to state enforcement of 

compulsory education on the Navajo Reservation.
46 WINDOW ROCK USD V. NEZ

B. The Significant State Interests Present Here 

Render Water Wheel and Grand Canyon

Inapplicable.

The panel majority asserts that our court interprets Hicks, 

533 U.S. 353, “as creating only a narrow exception to the 

general rule that, absent contrary provisions in treaties or 

federal statutes, tribes retain adjudicative authority over 

nonmember conduct on tribal land—land over which the 

tribe has the right to exclude.” (Emphasis added). This flips 

Montana’s general rule on its head. The majority primarily 

looks to Water Wheel and Grand Canyon to support this 

interpretation of Supreme Court precedent, but even those 

outlier decisions do not permit such a cramped reading of 

Hicks, and no existing authority supports the newly minted 

rule that the panel majority dubs “general.”10

 10 The panel majority also cites one of our cases that followed close 

on the heals of Hicks: McDonald v. Means, 309 F.3d 530 (9th Cir. 2002). 

The majority describes McDonald as “explicitly reject[ing] the argument 

that Hicks modified or overruled Montana such that it would ‘bar tribal 

jurisdiction not only over the conduct of nonmembers on non-Indian fee 

land but on tribal land as well.’” (Quoting McDonald, 309 F.3d at 540 

n.9). In McDonald, a minor member of the Cheyenne Tribe hit a horse 

owned by a nonmember. 309 F.3d at 535–36. The accident happened 

on a road that the McDonald court determined was Indian land. Id. at 

537–40. McDonald treated ownership of the land as dispositive and 

concluded that the Tribe had jurisdiction over the dispute. Id. at 539–40. 

The holding was expressly limited to a tort claim involving an accident 

occurring on a tribal road: “We hold that the nature and purpose of the 

grant [of a right-of-way over the road to the Bureau of Indian Affairs], 

the continuing control exercised by the Tribe over the road, and the 

Supreme Court’s previous treatment of BIA roads supports the 

conclusion that the tribal court had jurisdiction to entertain [the minor 

Indian’s suit] against the McDonald family.” Id. at 540. McDonald

predates our en banc decision in Smith v. Salish Kootenai College, where 

we applied the Montana framework to a dispute arising on tribal land 
WINDOW ROCK USD V. NEZ 47

First, as noted, Water Wheel and Grand Canyon 

recognized that Montana’s exceptions allowed for tribal 

jurisdiction in what respectively amounted to a landlordtenant dispute and an eminent domain action involving 

prime tribal land. As such, the disputes arose from 

“activit[ies] [that] interfered directly with the [T]ribe’s 

inherent powers to exclude and manage its own lands.” 

Water Wheel, 642 F.3d at 814. Second, both cases 

acknowledged that Hicks requires application of the 

Montana framework when there are “competing state 

interests at play.” See Water Wheel, 642 F.3d at 810–14; 

Grand Canyon, 715 F.3d at 1204–05. Those interests were 

entirely absent in Water Wheel and Grand Canyon. To the 

contrary, the non-tribal-members in Water Wheel and Grand 

Canyon were private businesses engaged in consensual, forprofit transactions with the Tribes and the Tribes had 

overwhelming interests in the use and disposition of their 

tribal assets (“prime” tribal land on the banks of the 

Colorado River in one case, and tribal land overlooking the 

Grand Canyon in the other). See Water Wheel, 642 F.3d at 

817; Grand Canyon, 715 F.3d at 1198. In this way, Water 

Wheel and Grand Canyon were consistent with Hicks’ 

observation that the ownership of land is only one factor to 

consider in analyzing whether tribal-court jurisdiction exists, 

but in some circumstances land ownership may be 

dispositive.

The case at bar stands in stark contrast. For starters, the 

employees’ disputes with Window Rock and Pinon School 

 

and stressed that in deciding whether a tribal court has jurisdiction over 

a nonmember “[o]ur inquiry is not limited to deciding precisely when 

and where the claim arose.” 434 F.3d 1127, 1135 (9th Cir. 2006) (en 

banc). McDonald and Smith are consistent with Hicks’ rule that 

ownership of the land is only one factor to consider.
48 WINDOW ROCK USD V. NEZ

Districts have nothing to do with occupancy of the tribal land 

or buildings in which the school districts operate. These 

disputes involve entitlement to teacher merit pay provided 

by a state ballot measure and the rights and obligations 

arising from the claimants’ employment contracts. The 

Navajo Nation Supreme Court’s amicus brief asserts 

interests in protecting Navajo employees and students, and 

the tribal court’s opening brief asserts interests in hearing 

complaints arising from employment decisions of all-Navajo 

school boards. But the school boards are political 

subdivisions of the State of Arizona, and Arizona has vitally 

important competing interests in the finality of its state-court 

judgments and its ability to enforce them. Further, Arizona’s 

constitution mandates “the establishment and maintenance 

of a general and uniform public school system,” Ariz. Const. 

art. 11, § 1, a requirement of the Arizona Enabling Act, ch. 

310, 36 Stat. 557, 570 (1910). It cannot be questioned that 

Arizona has a compelling interest in complying with its 

statutory and state constitutional mandate. With these state 

interests at issue, Hicks requires us to apply Montana

notwithstanding the holdings in Water Wheel and Grand 

Canyon.

11

Our circuit is already an outlier in this area of the law. 

Only our circuit interprets Hicks to mean that the Montana 

 11 The panel majority opines that there are factual disputes that the 

tribal court should decide to determine what state interests exist in this 

case. In my view, the state interests at issue are already clear and no 

further factual development is necessary to determine whether these state 

interests are sufficient to preclude tribal jurisdiction. If a State’s interest 

in executing legal process to enforce its criminal laws was sufficient in 

Nevada v. Hicks, 533 U.S. 353, 364 (2001), it is hard to imagine how a 

State’s interest in complying with a statutory and constitutional directive 

to provide a uniform system of public education to all the State’s children 

would be insufficient.
WINDOW ROCK USD V. NEZ 49

framework need not be applied to questions of tribal 

jurisdiction over nonmembers in the absence of competing 

state interests. Today, the panel majority goes one giant step 

farther, interpreting Hicks to authorize dodging Montana

even when there are exceptionally strong competing state 

interests, so long as those interests do not involve state 

criminal law enforcement and the dispute arises on tribal 

land. No case law, from any circuit, suggests this is the 

correct analysis.

The panel majority puts our court at odds with every 

other circuit that has addressed tribal jurisdiction over 

nonmembers after Hicks. Recently, the Seventh Circuit 

unanimously rejected the argument that notwithstanding 

Hicks and Plains Commerce Bank, “Montana only applies to 

situations in which tribes attempt to regulate nonmember 

conduct on non-Indian fee land, as opposed to tribal trust 

land.” Stifel, Nicolaus & Co. v. Lac du Flambeau Band of 

Lake Superior Chippewa Indians, 807 F.3d 184, 206 (7th 

Cir. 2015). In two cases specifically involving school 

districts, the Eighth Circuit did not find ownership of the 

land dispositive, analyzed the contours of tribal jurisdiction 

over nonmembers within the Montana framework, and held 

that the tribal court lacked jurisdiction over tribal members’ 

claims against the districts. See Belcourt Pub. Sch. Dist. v. 

Davis, 786 F.3d 653, 660 n.5, 661 (8th Cir. 2015); Fort Yates 

Pub. Sch. Dist. No. 4 v. Murphy ex rel. C.M.B., 786 F.3d 662, 

670 & n.6 (8th Cir. 2015).

The Tenth Circuit is in accord with the Seventh and 

Eighth Circuits. It considered a case in which the Navajo 

Nation asserted jurisdiction over county employees and 

concluded: “The notion that Montana’s applicability turns, 

in part, on whether the regulated activity took place on nonIndian land was finally put to rest in Hicks.” MacArthur v. 
50 WINDOW ROCK USD V. NEZ

San Juan Cty., 497 F.3d 1057, 1069 (10th Cir. 2007). 

Striking out on its own, the panel majority today announces 

a decision that pits our circuit’s case law against Tenth 

Circuit precedent, subjecting the Navajo Nation’s tribal 

courts to different rules governing their assertion of 

jurisdiction. See id. at 1069–70.

Nor does the panel majority’s reading of Hicks find 

support in the Supreme Court case itself. Hicks began its 

analysis with “the general proposition that the inherent 

sovereign powers of an Indian tribe do not extend to the 

activities of nonmembers of the tribe.” 533 U.S. at 358–59 

(quoting Montana, 450 U.S. at 565). The panel majority 

characterizes Hicks as “suggest[ing] . . . ‘the general rule of 

Montana applies to both Indian and non-Indian land.’” 

(Quoting Hicks, 533 U.S. at 360). But the Supreme Court 

left nothing to suggestion. Hicks’ holding on this point is 

express: 

While it is certainly true that the non-Indian 

ownership status of the land was central to the 

analysis in both Montana and Strate, the 

reason that was so was not that Indian 

ownership suspends the “general 

proposition” . . . that “the inherent sovereign 

powers of an Indian tribe do not extend to the 

activities of nonmembers of the tribe” except 

to the extent “necessary to protect tribal selfgovernment or to control internal relations.” 

533 U.S. at 359 (quoting Montana, 450 U.S. at 564–65).

In fact, two concurring Justices in Hicks emphasized 

their agreement with the Supreme Court majority that 

Montana governs the question of tribal civil jurisdiction over 

nonmembers’ conduct no matter who holds title to the land 
WINDOW ROCK USD V. NEZ 51

on which the conduct occurs. See id. at 375 (Souter, J., 

concurring) (“Like the Court, I take Montana v. United 

States . . . to be the source of the first principle on tribal-court 

civil jurisdiction . . . .”); id. at 387 (O’Connor, J., 

concurring) (“Today, the Court finally resolves that 

Montana v. United States . . . governs a tribe’s civil 

jurisdiction over nonmembers regardless of land 

ownership. . . . This is done with little fanfare, but the 

holding is significant because we have equivocated on this 

question in the past.”).

Essentially, the panel majority decides that the Supreme 

Court did not mean what it said. It relies entirely on a 

strained reading of the second footnote in Hicks where the 

Court explained, “Our holding in this case is limited to the 

question of tribal-court jurisdiction over state officers 

enforcing state law. We leave open the question of tribalcourt jurisdiction over nonmember defendants in general.” 

Id. at 358 n.2.

In this footnote, the Supreme Court focused on the status 

of the nonmember, not the land, foreseeing a case such as 

Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 

746 F.3d 167, 180 (5th Cir. 2014), where the Fifth Circuit 

was called upon to address tribal jurisdiction over a 

nonmember private actor rather than a government agent.12

 12 In Dolgencorp, the nonmember over whom the tribal court 

asserted jurisdiction was the operator of a Dollar General store on the 

Choctaw Reservation. See 746 F.3d at 169. The store sat on Indian land 

and operated pursuant to a lease agreement and business license issued 

by the Mississippi Band of Choctaw Indians. Id. After the store entered 

into a consensual agreement to participate in a tribal job training program 

that placed young tribal members in internships with local businesses, 

the store manager allegedly molested one of the interns on store 
52 WINDOW ROCK USD V. NEZ

Footnote two lends no support to the panel majority’s thesis; 

it only establishes that Hicks stopped short of announcing a 

bright line rule concerning tribal jurisdiction over all 

nonmembers. The footnote does not excuse our court from 

applying Montana.

At best, under our existing circuit precedent and 

Supreme Court authority, what the panel majority calls “the 

right-to-exclude framework” applies to nonmember conduct 

on tribal land only if there are no contrary treaties or statutes 

and no competing state interest at play. Here, Arizona 

possesses obvious competing and compelling interests. The 

panel majority insists that it need not decide whether Hicks

covers state interests other than those in criminal law 

enforcement. But in light of the state interests in this case, 

Hicks already requires us to begin with Montana’s general 

rule that tribes lack civil jurisdiction over nonmembers 

unless one of the Montana exceptions is satisfied.

IV.The Tribe Plainly Lacks Jurisdiction Under 

Montana.

Where no treaty or statute confers tribal jurisdiction and 

competing state interests are at play, federal courts assessing 

civil tribal jurisdiction over nonmembers look to the two 

exceptions described in Montana, 450 U.S. at 563–66. 

Neither exception plausibly justifies the assertion of tribalcourt jurisdiction over the employees’ claims against the 

school districts.

The first Montana exception provides that “[a] tribe may 

regulate, through taxation, licensing, or other means, the 

 

premises. Id. The intern brought tort claims against the store operator 

for negligent hiring, training, and supervision. Id.
WINDOW ROCK USD V. NEZ 53

activities of nonmembers who enter consensual relationships 

with the tribe or its members, through commercial dealing, 

contracts, leases, or other arrangements.” Id. at 565. Hicks

explained that in the context of Montana’s first exception, 

“‘other arrangement’ is clearly another private consensual

relationship,” and rejected the argument that, by seeking a 

search warrant from the tribal court, the state game wardens 

entered into a relationship with the Tribe that gave rise to 

tribal jurisdiction. Hicks, 533 U.S. at 359 n.3. Courts of 

appeal, including this court sitting en banc, have uniformly 

interpreted Montana’s first exception as inapplicable to 

relationships between tribes or tribal members and 

governmental entities. See Belcourt Pub. Sch. Dist. v. Davis, 

786 F.3d 653, 659 (8th Cir. 2015) (operating agreement 

between Tribe and school district); Fort Yates Pub. Sch. 

Dist. No. 4 v. Murphy ex rel. C.M.B., 786 F.3d 662, 668 (8th 

Cir. 2015) (same); MacArthur v. San Juan Cty., 497 F.3d 

1057, 1072–74 (10th Cir. 2007) (employment contracts 

between tribal members and county medical clinic); Cty. of 

Lewis v. Allen, 163 F.3d 509, 515 (9th Cir. 1998) (en banc) 

(law enforcement agreement between the Tribe and county). 

Montana’s first exception only applies to private consensual 

relationships, not to relationships involving state 

subdivisions, such as the Window Rock and Pinon Unified 

School Districts.

Even if Montana’s first exception encompassed tribal 

relationships with governmental entities, it does not yield a 

plausible argument that assertion of tribal-court jurisdiction 

over the school districts’ employment contracts would be 

proper. At bottom, the first exception is a recognition that 

parties who enter into consensual relationships with tribes or 

tribal members can fairly anticipate being subject to tribalcourt jurisdiction. See Plains Commerce Bank v. Long 

Family Land & Cattle Co., 554 U.S. 316, 338 (2008). The 
54 WINDOW ROCK USD V. NEZ

school districts’ contractual relationships with its seven 

employees provided that the employees would abide by state 

and federal law—and two of the employment contracts 

actually specified that jurisdiction for disputes arising from 

the contracts would lie in state and federal courts and that the 

contracts would be governed by state and federal law. Based 

on these contractual provisions, the school districts could not 

have anticipated that they would be hailed into Navajo tribal 

court.

The employees’ lawsuits against the school districts and 

the school districts’ counter suit for a declaratory judgment 

arise from employment contracts. Notably, the Navajo 

Nation is not a party to the employment contracts. The panel 

majority does not identify a nexus between the school 

districts’ contact with the Navajo Nation and “the activity 

giving rise to this lawsuit.” See Philip Morris USA, Inc. v. 

King Mountain Tobacco Co., 569 F.3d 932, 942 (9th Cir. 

2009). The Navajo Nation is a “stranger[]” to these 

employment relationships. See Strate v. A–1 Contractors, 

520 U.S. 438, 457 (1997) (citation omitted). Some of the 

employees are not even members of the Navajo Nation.

The school districts’ leases with the Navajo Nation do 

not provide the missing jurisdictional hook. The Supreme 

Court has observed that consensual relationships with tribes 

are not “in for a penny, in for a Pound.” See Plains 

Commerce Bank, 554 U.S. at 338 (quoting Atkinson Trading 

Co. v. Shirley, 532 U.S. 645, 656 (2001)). Non-Indians, such 

as the school districts, do not consent to tribal-court 

jurisdiction over unrelated transactions by entering into 

separate consensual relationships, such as leases, with a 

tribe. See id. “[T]he suit must also arise out of those 

consensual contacts,” Philip Morris, 569 F.3d at 941 

(emphasis added), and there must be “a nexus to the 
WINDOW ROCK USD V. NEZ 55

consensual relationship between the nonmember and the 

disputed commercial contacts with the tribe,” id. at 942.

The interest asserted by the Navajo Nation is not the sort 

that satisfies the second Montana exception. The second 

Montana exception provides that a tribe “retain[s] inherent 

power to exercise civil authority over the conduct of nonIndians . . . when that conduct threatens or has some direct 

effect on the political integrity, the economic security, or the 

health or welfare of the tribe.” Montana, 450 U.S. at 566. 

Conduct giving rise to jurisdiction under this exception must 

“imperil the subsistence” of the Tribe such that tribal power 

is necessary to “avert catastrophic consequences.” Plains 

Commerce Bank, 554 U.S. at 341 (citations omitted). For 

example, federal courts have concluded that the second 

Montana exception was at least plausibly satisfied where a 

non-Indian security company forcibly entered a tribal 

government building and seized tribal government 

documents; where a non-Indian trespassed on Indian land 

and started a forest fire; and where non-Indian landowners 

exercised riparian rights in a way that threatened 

environmental degradation of important tribal resources. 

See Attorney’s Process & Investigation Servs., Inc. v. Sac & 

Fox Tribe of the Miss. in Iowa, 609 F.3d 927, 932, 941 (8th 

Cir. 2010) (document seizure); Elliott v. White Mountain 

Apache Tribal Court, 566 F.3d 842, 844–45, 848–51 (9th

Cir. 2009) (forest fire); Confederated Salish & Kootenai 

Tribes of the Flathead Reservation, Mont. v. Namen, 

665 F.2d 951, 964 (9th Cir. 1982) (riparian rights).

Courts generally do not find that private transactions, 

like the employment relationships here, implicate Montana’s 

second exception. In Plains Commerce Bank, tribal 

members alleged that a nonmember bank had discriminated 

against them in a land sale, 554 U.S. at 322, 338, but the 
56 WINDOW ROCK USD V. NEZ

Supreme Court held that the Tribe lacked jurisdiction over 

the dispute, reasoning, “The sale of formerly Indian-owned 

fee land to a third party . . . cannot fairly be called 

‘catastrophic’ for tribal self-government.” Id. at 341 

(quoting Strate, 520 U.S. at 454). The second Montana

exception is narrow. See Strate, 520 U.S. at 459; State of 

Mont. Dep’t of Transp. v. King, 191 F.3d 1108, 1114 (9th 

Cir. 1999).

Defendants argue that the employees’ lawsuits against 

the school districts concern the Navajo Nation’s interest in 

enforcing the Navajo Preference in Employment Act and 

thus lowering unemployment. Certainly, the welfare of a 

tribe is harmed by very high levels of unemployment on 

reservations. See King, 191 F.3d at 1114. But in a similar 

situation, we held that even the Tribe’s interest in promoting 

local hire does not justify the assertion of tribal-court 

jurisdiction. King considered whether a tribe could regulate 

employment practices for hiring construction workers on a 

state highway running through a reservation and concluded 

the tribe lacked this regulatory authority. See id. at 1110–

12. Notwithstanding the Tribe’s interest in lowering 

unemployment, we held:

The [Tribe] agreed to the right of way, and 

the State of Montana became responsible to 

maintain the road at its own expense. Thus, 

the [Tribe’s] assertion of authority over the 

State’s own employees goes beyond the 

internal functioning of the [T]ribe and its 

sovereignty and instead impinges on one of 

the State of Montana’s sovereign 

responsibilities—maintaining Highway 66 

and the right of way at its own expense.
WINDOW ROCK USD V. NEZ 57

Id. at 1114 (internal quotation marks omitted).

The panel majority does not explain why a different 

outcome is warranted for a dispute seeking merit pay under 

a state initiative, or a suit challenging a school district’s 

grounds for terminating a teacher for failure to abide by 

school-district policies, or a case invoking the Navajo 

Preference in Employment Act. The concerns that mandated 

the outcome in King require the same result here: under the 

Arizona Enabling Act and the Arizona Constitution, the 

State bears the sovereign responsibility to maintain 

Arizona’s school system and the Navajo Nation cannot 

plausibly claim jurisdiction over the contractual 

relationships between the school districts and their 

employees. The facts of this case fall well beyond the 

boundaries of the second Montana exception.

V. Exhaustion in Tribal Court Was Not Required.

Exhaustion in tribal court is not required if “it is plain” 

that tribal court jurisdiction is lacking and the exhaustion 

requirement “would serve no purpose other than delay.” 

Hicks, 533 U.S. at 369 (quoting Strate, 520 U.S. at 459 n.14). 

Under our precedent, “it is ‘plain’ that the tribal court lacks 

jurisdiction” if jurisdiction is neither “colorable” nor 

“plausible.” Elliott v. White Mountain Apache Tribal Court,

566 F.3d 842, 848 (9th Cir. 2009) (quoting Atwood v. Fort 

Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir. 

2008)). Here, I would hold that jurisdiction is plainly 

lacking and that exhaustion in tribal court is not required.

The majority invokes the Supreme Court’s general 

policy in favor of exhaustion, citing National Farmers 

Union Insurance Cos. v. Crow Tribe of Indians. See

471 U.S. 845 (1985); National Farmers identified the 

factors underpinning this policy: (1) “supporting tribal self-
58 WINDOW ROCK USD V. NEZ

government and self-determination”; (2) allowing “the 

forum whose jurisdiction is being challenged the first 

opportunity to evaluate the factual and legal bases for the 

challenge”; (3) “allowing a full record to be developed in the 

Tribal Court before either the merits or any question 

concerning appropriate relief is addressed”; and 

(4) “provid[ing] other courts with the benefit of [tribal 

courts’] expertise in such matters in the event of further 

judicial review.” Id. at 856–57. More recently, the Supreme 

Court emphasized that exhaustion was required in National 

Farmers “based on comity,” Strate, 520 U.S. at 453, and a 

preference for “allowing tribal courts initially to respond to 

an invocation of their jurisdiction,” id. at 448. The Supreme 

Court “d[id] not extract from National Farmers anything 

more than a prudential exhaustion rule, in deference to the 

capacity of tribal courts ‘to explain to the parties the precise 

basis for accepting [or rejecting] jurisdiction.’” Id. at 450 

(alteration in original) (quoting Nat’l Farmers, 471 U.S. at 

857). Strate also made clear that exhaustion is not required 

when “it is plain that no federal grant provides for tribal 

governance of nonmembers’ conduct on land covered by 

Montana’s main rule.” Id. at 459 n.14.

The comity concerns at play in National Farmers are not 

present here. The school districts did not seek to bypass the 

tribal court; they filed suit in federal court only after the 

tribal court declined to rule on their motion to dismiss and 

sought to impose a costly evidentiary hearing. Importantly, 

for five of the seven employees, state-court decisions had 

already been entered, and two of the employees’ contracts 

with the school districts expressly provided that jurisdiction 

shall be in state or federal court, not tribal court. Thus, it is 

clearly the state courts’ jurisdiction that is being challenged. 

Although these facts alone do not foreclose application of 

the preference for exhaustion in tribal court, they easily 
WINDOW ROCK USD V. NEZ 59

distinguish the case at bar from ones in which the Supreme 

Court has required exhaustion.13

Arizona has a compelling interest in ensuring that 

Navajo children have access to public education on the 

Navajo Reservation, and Montana v. United States, 450 U.S. 

544 (1981), is the applicable framework. Because I would 

hold that jurisdiction is not colorable or plausible under 

Montana, I respectfully dissent.

 13 Moreover, National Farmers was decided thirty years ago and 

predates the Supreme Court’s holdings in Nevada v. Hicks, 533 U.S. 353 

(2001), and Strate v. A–1 Contractors, 520 U.S. 438 (1997). See also 

State of Mont. Dep’t of Transp. v. King, 191 F.3d 1108, 1112–13, 1115 

(9th Cir. 1999) (summarizing circumstances when exhaustion is not 

required). Even if tribal jurisdiction was plausible at the time National 

Farmers was decided, subsequent developments in the law render tribal 

jurisdiction implausible today.