Joe Gilmore

Wednesday, June 28, 2017

Court says tribal agency has jurisdiction in state school labor dispute

WASHINGTON – A federal appeals court ruled Wednesday that the Navajo Nation Labor Commission can decide a labor dispute between state school districts and their employees at schools on Navajo land.

The ruling by a divided three-judge panel of the 9th U.S. Circuit Court of Appeals reverses a district court that said the tribe’s jurisdiction was “so plainly lacking” that exhausting the case in a tribal setting before going to state or federal court “would serve no purpose other than delay.”

But in a pointed dissent, Circuit Judge Morgan Christen said the majority had taken tribal sovereignty “one giant step farther” than other circuits or case law suggest. Christen wrote that previous rulings say inherent sovereign powers of tribes “generally do not extend to the activities of nonmembers.”

Calls to the school districts involved, and their attorneys, were not immediately returned Wednesday. But an attorney in the Navajo Department of Justice was pleased with the ruling, saying the circuit judges were “correct with their reasoning.”

The appeal concerns complaints about merit pay, tribal employment and a dismissal from six employees of the Window Rock Unified School District and one employee of the Pinon Unified School District. Both school districts are considered political subdivisions of the state, but operate on leased land on the Navajo Nation.

The complaints were filed with the tribe’s labor commission. The school districts first moved to have the cases dismissed, claiming that the commission did not have jurisdiction. When the commission moved ahead with an evidentiary hearing, the districts then went to federal court.

A U.S. district court judge agreed with the schools, saying that “tribal jurisdiction was so plainly lacking that exhaustion in the tribal forum was not required.”

But the 9th Circuit overturned that decision. Circuit Judge Michelle T. Friedland’s opinion said the tribe should “have the opportunity to evaluate its own jurisdiction over the case, including the nature of the state and the tribal interests involved.”

Friedland wrote that there are instances where tribal sovereignty is trumped by state or federal law. But 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,” she wrote.

But Christen noted that “all seven claimants signed employment contracts with school districts agreeing to abide by applicable laws of the United States and the State of Arizona, as well as the State Board of Education’s policies, rules and regulation.” Two had agreed that any employment disputes would be settled in state or federal court.

The majority also overlooked the fact that many of the employees had already lost in state court before turning to the tribal commission, said Christen, who noted that panel’s decision conflicted with rulings in similar cases in the 7th, 8th and 10th circuits.

Christen says the ruling wrongly treats the Window Rock and Pinon 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.”

But Kathren Belzowski, senior attorney for litigation and employment at the Navajo Nation Department of Justice, welcomed the majority’s opinion.

“We’re very pleased with the decision,” Belzowski said, adding that the panel was right in its decision on “jurisdiction over school districts who lease the land from us.”

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