Civil Litigation in Navajo Courts

Patrick T. Mason

Mason & Isaacson, P.A.

Gallup, NM

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Lawsuits Involving

638 Entities

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638 Contract Entities

1975: US Passes Indian Self-Determination and Education Assistance Act

Tribes may enter into contract with the U.S. to take over services traditionally provided by BIA and IHS.

Common examples include: Navajo Police Department and Social Services.

These contracts are called 638 Contracts, because they arise under PL 93-638

638 Contracts initially proved detrimental to tribes due to the cost of insurance and litigation, and so the law was amended to provide FTCA Coverage.

PL 101-512 provides that 638 contractors and their employees are afforded full protection and coverage under the FTCA.

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Who is the employer for purposes of suit?

One “simple” question:

Were they performing work pursuant to the Scope of Work of a 638 Contract?

Yes.

The US should be considered the employer for purposes of suit.

Pursue in Federal Court pursuant to the FTCA.

No.

The Navajo Nation should be considered the employer for purposes of suit.

Pursue in the Navajo Nation Courts.

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Suing the United States – The Form 95

Incident Occurs

Notify the entity, in writing, of the claim.

They will forward your letter or notice to Navajo DOJ and Navajo Risk Management (“RMD”).

Navajo DOJ will determine whether the employee was doing work under a 638 Contract.

If they are a 638 employee, Navajo DOJ will send you a Form 95.

Fill out the Form 95 and submit it to the 638 entity for whom the employee was working.

The US Solicitors office has 6 months to review the claim, and then you will get this response…

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The Office of the US Solicitor

The US Solicitor systematically denies claims, whether the claim is legitimate or not.

Sometimes they just don’t respond.

If they don’t respond within 6 months you can assume your claim is denied and proceed with filing your complaint in Federal Court

Often the US Solicitors are the ones telling the US Attorneys how to proceed.

They will do anything they can to get your Federal case dismissed.

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Things to Remember

“Any civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by this provision shall be deemed to be an action against the United States and will be defended by the Attorney General and be afforded the full protection and coverage of the Federal Tort Claims Act”

• PL 101–512, November 5, 1990, Section 314

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Things to Remember9

§ 900.186 Is it necessary for a self-determination

contract to include any clauses about Federal Tort

Claims Act coverage?

No, it is optional. At the request of Indian tribes and

tribal organizations, self-determination contracts shall

include the following clauses to clarify the scope of

FTCA coverage:

For purposes of Federal Tort Claims Act coverage, the contractor and its employees (including individuals performing personal services contracts with the contractor to provide health care services) are deemed to be employees of the Federal government while performing work under this contract. This status is not changed by the source of the funds used by the contractor to pay the employee's salary and benefits unless the employee receives additional compensation for performing covered services from anyone other than the contractor

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Things to Remember

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Lawsuits Involving

Tribal Entities

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Sovereign Immunity

The Navajo Nation is a Sovereign Tribe.

Sovereign Immunity is a Jurisdictional Defense and must be strictly construed in favor of the tribe.

Navajo Housing Authority v Howard Dana and Associates (5 Nav. R. 157)(1987)

Plaintiffs, as a jurisdictional predicate, must establish that immunity has been waived.

Raymond v NAPI (7 Nav. R. 142)(1995)

Waiver of immunity must be unequivocally expressed.

TBI Contractors vs the Navajo Nation (6 Nav. R. 57)(1988)

There are Procedural Requirements and Substantive Requirements

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The Sovereign Immunity Act

Examples of Procedures

You must give notice 30 Days prior to initiating suit

You must serve President, Attorney General, and Legislative Counsel by certified mail, return receipt requested.

The Navajo Nation may transfer venue to Window Rock

The Navajo Nation gets 60 Days to respond

Examples of Substance

There must be insurance coverage for the type of claim asserted

A third party cannot have assumed liability (eg., The United States has assumed liability under 638 Contracts)

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Incident Occurs

Provide Notice

After 30 or more days, file your complaint and follow

all the required procedures

If complaint is filed outside of Window Rock, the DOJ

may decide to transfer to Window Rock

Within 60 days you will receive a responsive pleading

from the Navajo Nation

Either an Answer or a Motion to Dismiss

In the case of a 638 Claim, it will be a Motion to Dismiss

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638 Motion to Dismiss

1 N.N.C. § 554(D)

Any exception to the immunity of the Navajo Nation

and assumption of liability pursuant to this act does not

apply in circumstances in which such liability has been

or is hereafter assumed by third parties, including any

other governmental body or agency....

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638 Motion to Dismiss

28 U.S.C. § 2679(b)(1)

The remedy against the United States ... for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee.

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638 Motion to Dismiss

25 CFR § 900.204

§ 900.204 Is FTCA the exclusive remedy for a non-medical related tort claim arising out of the performance of a self-determination contract?

Yes ... no claim may be filed against a self-determination contractor or employee based upon performance of non-medical-related functions under a self-determination contract. Claims of this type mustbe filed against the United States under FTCA.

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Other Notes on Tribal Litigation

File an Answer AND a Motion to Dismiss (at least in Window Rock).

Tribal Courts move SLOWLY!!!

Even after your trial you may not have a judgment for years.

You can always file a Writ of Mandamus as a last resort.

Jurisdiction over gaming claims is still disputed.

Judgments and settlements are usually lower than in other courts… usually…

Natural reason is valid law!

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Lawsuits Involving

Non-Indian Parties

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Jurisdiction over Non-Indians

“It is the plaintiffs responsibility to plead sufficient facts in the complaint to establish the court's jurisdiction.” Dale Nicholion Trust v. Chavez, 8 Nav. R. 417, 424 (Nav.Sup.Ct. 2004).

“Personal jurisdiction means that a court has authority over a party, even if he or she resides outside the Navajo Nation, if he or she consents to have the case heard in the Navajo courts, or if his or her actions have effects within the Navajo Nation.” Navajo Transport Services, slip op. at 3, citing SelIs v. Epsil, 6 Nav. R. 195, 197 (Nav.Sup.Ct. 1990); Billie v. Abbott, 6 Nav. R. 66, 73-74 (Nav.Sup.Ct. 1988).

The Navajo Supreme Court has further stated that 7 N.N .C. § 253 "authorizes personal jurisdiction over non-residents defendants to the extent allowed by Navajo due process." Sells, 6 Nav. R. at 197.

In the case of Sells, the Navajo court applied the minimum contacts test of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), in determining whether the exercise of jurisdiction over a non-resident defendant satisfied the requirements of Navajo due process.

“[A]bsent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances." Strate v. A-1 Contractors, 520 U.S. 438, 445, 117 S. Ct. 1404, 1409, 137 L. Ed. 2d 661 (1997). "Neither regulatory nor adjudicatory authority over the state highway accident at issue is needed to preserve 'the right of reservation Indians to make their own laws and be ruled by them."' Strate, 520 U.S. at 459, 117 S. Ct. at 1416.

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Traditional Law,

Common Law,

Diné Bi Beenahaz'áanii

(1 N.N.C. §§ 201-206)

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Sovereign Immunity

Diné Bi Beenahaz'áanii (1 N.N.C. §§ 201-206). The Window Rock District Court issued Final Order in a malpractice action in which

Plaintiff had settled with Respondent in peacemaking except for issues of mental anguish and suffering. Relying on the Navajo Life Way, Diné bi'o'ool'ijl, and hearing from qualified Diné individuals on Navajo culture and tradition, the court finds that it does not have the authority to make a determination about whether DNA caused or furthered any emotional distress that Ms. Laughter feels. Veronica Laughter v. DNA People’s Legal Services, Final Order, January 20, 2009.

The Chinle District Court explained its basis for an order of dismissal previously issued in an action for death benefits additional to a State Workers’ Compensation award filed by the surviving spouse. Citing Benally vs. Big A Well Service, Co., 8 Nav. R. 60, 67-68 (Nav. Sup. Ct. 2000)… the court must consider the amount of money to be paid, and how that amount is determined. The amount to be paid should be enough so there is no hard feelings. Vangie Yazzie et al v. Eagle Air Med, Corp. and Scenic Aviation, Inc., Final Order Dismissing a Complaint., March, 2009.

Reason, Common Sense, and Fairness Prevail… Hopefully!

Hózhó!