Saturday, January 15, 2005

Ford Motor Co. v. Todecheene (9th Cir. - January 11, 2005)

I'm very conflicted about tribal jurisdiction. Part of me very much wants to respect the inherent sovereignty of Indian tribes and invest the kind of faith in tribal adjudication that is required to foster the development of respected modes of tribal adjudication. Simultaneously, however, part of me is not very confident in the contemporary willingness of such tribunals to fairly adjudicate disputes, particularly those that involve members agaisnt nonmembers.

This case is a good example. An onduty police officer employed by the Navajo Department of Public Safety dies when her Ford Explorer rolls over on a dirt road within the Navajo Nation. The family of the decedent sues in Navajo tribal court, arguing that the Explorer was defective. Ford, by contrast, asserts that the car was not defective and that the decedent was not wearing a seat belt, and also files a federal lawsuit seeking to enjoin the tribal proceeding, claiming that the tribal court had no jurisdiction over the dispute.

On the merits, both sides have good arguments. The relevant precedent (which I have litigated myself in the past) is far from clear, and consists of fairly malleable and fact-intensive considerations. I'd have liked to see Judge Rawlinson (who, alongside Judge Silverman, affirmed, holding that the tribal court has no jurisdiction) and Judge Willie Fletcher (who dissented) discuss precedent a little less and policy a little more. Now, I know, that's not really their role. But I find the discussion of both the majority and dissent fairly dry and unhelpful. There are reasons behind the underlying cases. Let's hear about 'em, and see how those reasons apply -- or don't apply -- to the present case. Maybe even talk about the incentive effects generated by a ruling one way or the other. Will upholding jurisdiction potentially result in a refusal by nonmembers to deal with tribes and/or members of tribes? Will denying jurisdiction prevent the tribe from ensuring its own safety? I'd have liked to have seen a little more discussion of the global issues rather than a mere recitation of precedent.

That said, it's still a case worth thinking about.