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In the United States District Court for the District Of Case 2:00-cv-00584-BSJ Document 837 Filed 10/12/05 Page 1 of 265 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION * * * * * * * * * DR. STEVEN MACARTHUR, et al., ) ) Plaintiffs, ) Civil No. 2:00-CV-584J ) vs. ) ) MEMORANDUM OPINION & SAN JUAN COUNTY, et al., ) ORDER ) Defendants; ) ) ) FILED DONNA SINGER, FRED RIGGS, and ) CLERK, U.S. DISTRICT COURT ALLISON DICKSON, ) October 12, 2005 (4:08pm) ) Plaintiffs, ) vs. ) ) SAN JUAN COUNTY, SAN JUAN ) HEALTH SERVICES DISTRICT, ) COMMISSIONER TYRON LEWIS, ) COMMISSIONER BILL REDD, ) CRAIG HALLS, RICHARD BAILEY, ) REID WOOD, ROGER ATCITTY, ) JOHN LEWIS, KAREN ADAMS, ) PATSY SHUMWAY, and LAUREN ) SCHAFER, ) ) Defendants. ) * * * * * * * * * Case 2:00-cv-00584-BSJ Document 837 Filed 10/12/05 Page 2 of 265 I. THE ISSUES ON REMAND ...............................................2 II. PRÉCIS ...............................................................3 III. PROCEDURAL HISTORY ...............................................5 IV. THE CLAIMS OF THE PART II PLAINTIFFS . 11 A. Ms. Donna Singer.................................................12 B. Mr. Fred Riggs ...................................................18 C. Mr. Allison Dickson ...............................................22 D. The Nature of Plaintiffs’ Claims .....................................26 E. Plaintiffs’ Supplemental Pleading.....................................29 V. THE NAVAJO COURT ORDERS .........................................30 A. The December 28, 1999 Order .......................................32 1. Findings re: Mr. Riggs ........................................33 2. Findings re: Ms. Singer .......................................34 3. Findings re: Mr. Dickson ......................................36 4. Preliminary Relief Under the December 28, 1999 Order . 37 B. The March 1, 2000 Order ...........................................41 C. The March 6, 2000 Order ...........................................46 VI. THE NATURE AND EXTENT OF NAVAJO SOVEREIGNTY . 49 A. Inherent Navajo Tribal Sovereignty ...................................49 1. “Domestic Dependent Nations” .................................49 2. Inherent Tribal Powers........................................55 3. Tribal Sovereignty & Federal Indian Policy . 64 B. Oliphant, Montana & Implied Divestiture of Tribal Sovereignty . 73 1. Oliphant v. Suquamish Indian Tribe .............................75 2. Montana v. United States & its Exceptions ........................80 3. Civil Jurisdiction Over Non-Indians Reaffirmed . 84 C. Navajo Sovereignty & Self-Government . 87 1. The Navajo Treaty of 1868 ....................................87 2. Subsequent Legislation Enlarging the Navajo Reservation . 92 3. A Tale of Two Treaties: Montana & the 1933 Act ..................95 4. The Navajo Nation Government ................................99 D. Navajo Sovereignty & the Navajo Courts . 104 1. Creation of the Navajo Court System . 104 2. Jurisdiction of the Navajo Courts . 107 -ii- Case 2:00-cv-00584-BSJ Document 837 Filed 10/12/05 Page 3 of 265 3. Navajo Court Jurisdiction Over Non-Indian Defendants . 108 4. Montana & the NPEA in the Navajo Courts: the Manygoats Case ...........................................113 E. The Navajo Preference in Employment Act (NPEA) . 119 1. “At-Will” Employment vs. “Just Cause” Tenure . 121 2. NPEA Protection for Non-Navajo Spouses . 125 3. Administrative Enforcement of the NPEA . 125 4. Singer, et al. v. San Juan County, et al. and the NPEA’s Exhaustion Requirement..............................128 F. Navajo Tort Law .................................................130 VII. ENFORCEMENT OF THE NAVAJO COURT ORDERS IN THIS FORUM . 137 A. Theories re: the Navajo Court’s Subject-Matter Jurisdiction in Singer, et al. v. San Juan County, et al. .................................137 1. Navajo Court Jurisdiction as a Federal Question . 137 2. Subject-Matter Jurisdiction Over the County and Health District Defendants Under the Montana Exceptions.............141 (i) Plaintiffs’ Theory re: Jurisdiction . 141 (ii) San Juan County’s Theory re: Jurisdiction . 145 (iii) The Health District’s Theory re: Jurisdiction . 148 B. Analysis & Conclusions re: the Navajo Court’s Subject-Matter Jurisdiction in Singer, et al. v. San Juan County, et al. ......................150 1. Montana & the Plaintiffs’ “Congressional Presumption” . 150 2. The Defendants’ Reading of Montana ...........................155 3. The Navajo Court’s Findings of Jurisdictional Facts . 158 (i) Fred Riggs ..........................................163 (ii) Allison Dickson......................................163 (iii) Donna Singer .......................................163 (iv) San Juan County .....................................169 (v) San Juan County Commissioners . 170 (vi) San Juan County Attorney Craig Halls . 171 (vii) County Administrator Richard “Rick” Bailey . 172 (viii) Summary re: the County Defendants . 173 (ix) San Juan Health Services District . 175 (x) Health District Board Members . 183 (xi) Roger Atcitty .......................................184 (xii) Lauren “Laurie” Schafer ..............................185 (xiii) Reid Wood ........................................186 (xiv) Summary ..........................................188 C. Navajo Court Judgments in the Federal Courts . 189 1. Comity vs. Full Faith and Credit ...............................189 -iii- Case 2:00-cv-00584-BSJ Document 837 Filed 10/12/05 Page 4 of 265 2. Full Faith and Credit, Comity & the Problem of Non-Final Judgments . 202 3. Final Judgments Under Navajo Law . 205 4. Preliminary Injunctive & other Equitable Relief in the Singer, et al. v. San Juan County, et al. Navajo Court Orders . 208 D. Attorney’s Fees Awards Under Navajo Law . 213 E. Plaintiffs’ Standing re: Navajo Patients . 215 F. Governmental Immunity & The Health District Defendants . 219 1. The October 30, 2000 Decision & Law of the Case . 220 2. State Sovereign Immunity & Tribal Courts . 222 3. The Utah Governmental Immunity Act . 226 4. Counterclaims & the Waiver of State Immunity . 230 5. The Health District’s Counterclaim . 232 6. Sovereign Immunity & Reciprocity . 233 7. Plaintiffs’ Claims & the Utah Governmental Immunity Act . 239 (i) Contractual Claims ....................................240 (ii) Intentional Tort Claims ................................242 (iii) Civil Rights Claims ..................................244 8. Summary .................................................250 SUMMARY & CONCLUSION .............................................251 -iv- Case 2:00-cv-00584-BSJ Document 837 Filed 10/12/05 Page 5 of 265 The original complaint filed in this action asserted claims by fifteen plaintiffs, including Donna Singer, Fred Riggs, and Allison Dickson.1 (See Complaint (Verified), filed July 25, 2000 (dkt. no 1).) These three plaintiffs’ claims were addressed early in this litigation by Judge Kimball, the district judge then assigned to this case, who entered orders dismissing their claims against San Juan County, the San Juan Health Services District and various individual defendants on the grounds that neither the County nor the Health District had waived their sovereign immunity from suit in tribal court, and that individual employee defendants likewise remained immune from suit under Utah law absent allegations of fraud or malice. The court dismissed their claims against Truck Insurance and R. Dennis Ickes on the ground that the tribal court lacked subject matter jurisdiction. (See Memorandum Decision and Order, filed October 30, 2000 (dkt. no. 81); Memorandum Decision and Order, filed December 13, 2000 (dkt. no. 115).) Those rulings became the subject of a Rule 54(b) certification and an appeal. (See Notice of Appeal, filed January 4, 2001 (dkt. no. 126); Order, filed March 6, 2001 (dkt. no. 168).) On October 7, 2002, The court of appeals affirmed the dismissal of Truck Insurance and Ickes on jurisdictional grounds, but vacated the dismissal of the County and Health District defendants and remanded the matter for further proceedings. See MacArthur v. San Juan County, 309 F.3d 1216 (10th Cir. 2002). By that time, the case had already been reassigned to this court. One month later, in November of 2002, the plaintiffs sought leave to file an amended 1In a number of instances, Mr. Dickson’s name was spelled “Alison” rather than “Allison” in plaintiffs’ pleadings, affidavits, and other papers. Except when it would alter a quotation, this court uses the “Allison” spelling, as it appears on this record to be the one Mr. Dickson uses in writing his own name. 1 Case 2:00-cv-00584-BSJ Document 837 Filed 10/12/05 Page 6 of 265 complaint that, among other things, would clarify the claims of Singer, Riggs and Dickson in light of the appellate court opinion. Leave to amend having since been granted, the claims of these three plaintiffs are now set forth in Part II of the Amended Complaint. (See Amended Complaint, filed June 14, 2005 nunc pro tunc to November 14, 2002 (dkt. no. 744) (“Amended Complaint”), at 98-120.) I. THE ISSUES ON REMAND The Tenth Circuit vacated the court’s dismissal of Singer, Riggs and Dickson’s claims against County and Health District defendants, and remanded the matter for further proceedings consistent with its opinion that “the district court should have performed a Montana analysis before reaching the sovereign immunity question,” referring to Montana v. United States, 450 U.S. 544 (1981). MacArthur v. San Juan County, 309 F.3d at 1227, 1228. The threshold question in our review of
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