Medina v. Chee

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CLAUDIA MEDINA, duly appointed Personal Representative of the
Estates of Carlos Mario Pena Jaramillo; Soraida Delgado Sierra;
Juliana Pena Delgado; and Manuela Pena Delgado,
Plaintiff/Appellant,

v.

The Estate of JAVAS JAYSEAN CODY, The Estate of AARON CHEE;
MARTINA GRANDSON, an unmarried woman; SENTRY INSURANCE
COMPANY f/k/a Sentry Insurance a Mutual Company,
Defendants/Appellees.

No. 1 CA-CV 22-0709
FILED 10-5-2023

Appeal from the Superior Court in Coconino County
No. S0300CV202000641
No. S0300CV202100003
The Honorable Ted Stuart Reed, Judge

AFFIRMED

COUNSEL

Hagens Berman Sobol Shapiro LLP, Phoenix
By Robert B. Carey, Michella A. Kras
Counsel for Plaintiff/Appellant

Zwillinger Wulkan, PLC, Phoenix
By Colin Bradley
Counsel for Defendant/Appellee Jefferson Cody
Appel Law Office, P.L.L.C., Fountain Hills
By Marc Appel
Counsel for Defendant/Appellee Martina Grandson

Christian Dichter & Sluga, P.C., Phoenix
By Gena L. Sluga
Counsel for Defendants/Appellees Sentry Insurance Company

Lewis Roca Rothgerber Christie LLP, Phoenix
By Susan M. Freeman
Counsel for Defendants/Appellees Sentry Insurance Company

Navajo Nation Department of Justice, Window Rock
By Sage G. Metoxen
Counsel for Amicus Curiae Navajo Nation

OPINION

Presiding Judge D. Steven Williams delivered the Court’s opinion, in which
Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.

W I L L I A M S, Judge:

¶1 The issue before us is whether a plaintiff who is not an
enrolled tribal member may bring a civil tort case in state court against an
enrolled tribal member for conduct occurring within tribal reservation
boundaries but on a stretch of land for which the State has been granted a
highway right-of-way easement. We hold that a non-tribal plaintiff
bringing such a case cannot hale a nonconsenting enrolled tribal member
defendant into state court for actions arising out of conduct on the
defendant’s reservation, even when that conduct occurs on a state highway.
Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Early one evening in January 2019, Javas Jaysean Cody drove
his mother’s (Martina “Grandson”) vehicle across the center line of an
undivided highway into oncoming traffic, colliding with the Pena Delgado
family’s car. Tragically, the head-on collision killed the occupants of both
vehicles on impact—the four members of the Pena Delgado family (Carlos,
Soraida, Juliana, and Manuela), and Cody and his passenger, Aaron Chee.

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The collision occurred along a section of U.S. Highway 89 located on the
Navajo Nation. Both Cody and Chee were enrolled members of the Navajo
Tribe, as was Grandson; the Pena Delgado family was not.

¶3 As a surviving Pena Delgado family member, Claudia
Medina was appointed the personal representative of the Pena Delgado
estates. Medina filed two wrongful death cases (later consolidated), one
(predicated on negligence) against Cody’s estate and the other (predicated
on negligence and negligent entrustment) against Grandson and Chee’s
estate (collectively “the Defendants”).

¶4 About eighteen months into the litigation, Sentry Insurance
Company (“Sentry”), which insured Grandson and Chee at the time of the
collision (and covered Cody as an additional insured), successfully moved
to intervene. Sentry then moved to dismiss the consolidated cases, arguing,
among other things, that the court lacked subject matter jurisdiction
because the tort action arose “out of on-reservation conduct by Navajo
tribal members.”

¶5 Without addressing Sentry’s other asserted bases for
dismissal, the superior court dismissed Medina’s claims for lack of subject
matter jurisdiction based on the undisputed facts: (1) the Defendants are
“Navajo tribal members residing on the Navajo Reservation,” (2) the Pena
Delgado family were non-tribal members, and (3) the location of the
accident was “on a state highway within the Navajo Reservation.” Upon
entry of final judgment, Medina timely appealed. We have jurisdiction over
this appeal under Article 6, Section 9, of the Arizona Constitution, and
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶6 Medina challenges the superior court’s dismissal of her tort
action for lack of subject matter jurisdiction. Contrary to the superior court’s
implicit finding, Medina contends that tribal courts do not have exclusive
jurisdiction over civil tort actions arising out of conduct that occurs on
state-maintained rights-of-way running through tribal land.

¶7 “Subject matter jurisdiction is the power of a court to hear and
determine a controversy.” Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588,
594, ¶ 13 (App. 2009) (internal quotations omitted). We review de novo
whether a superior court has subject matter jurisdiction over a civil action.
Buehler v. Retzer ex rel. Indus. Comm’n, 227 Ariz. 520, 521, ¶ 4 (App. 2011).

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¶8 “[Q]uestions of jurisdiction over Indians and Indian country
remain a complex patchwork of federal, state, and tribal law, which is better
explained by history than by logic.” Smith v. Salish Kootenai Coll., 434 F.3d
1127, 1130 (9th Cir. 2006) (internal quotations omitted). To resolve such
questions, courts must “inspect [the] relevant statutes, treaties, and other
materials,” including existing caselaw. Strate v. A-1 Contractors, 520 U.S. 438,
449 (1997).

¶9 In 1868, after decades of conflict, the Navajo Tribe entered a
treaty with the United States government. Arizona v. Navajo Nation, 143
S. Ct. 1804, 1809 (2023); see also Treaty Between the United States of America
and the Navajo Tribe of Indians, June 1, 1868, 15 Stat. 667 (ratified Aug. 12,
1868) (“Treaty of 1868”). “In exchange for the Navajos’ promise not to
engage in further war, the United States established a large reservation for
the Navajos in their original homeland,” including a substantial section of
northeastern Arizona. Arizona, 143 S. Ct. at 1809–10. Apart from providing
for designated tribal land, the Treaty of 1868 established “the Navajo Tribe
as a sovereign entity” possessing “the right of self-government” within its
territorial boundaries. Begay v. Roberts, 167 Ariz. 375, 379 (App. 1990).
Indeed, as recognized by the United States Supreme Court, both the federal
government and the Navajo Tribe “[i]mplicit[ly] . . . underst[oo]d” that
under the treaty, “the internal affairs of the Indians remained exclusively
within the jurisdiction of whatever tribal government existed.” Williams v.
Lee, 358 U.S. 217, 221–22 (1959) (emphasis added). Consistent with this
understanding, courts construed the Treaty of 1868 “to preclude state court
jurisdiction over Navajos living on the reservation” in matters arising from
on-reservation activity. Begay, 167 Ariz. at 379; see also McClanahan v. State
Tax Comm’n of Ariz., 411 U.S. 164, 168–69, 175 (1973) (construing the Treaty
of 1868 as precluding the “extension of state law . . . to Indians on the Navajo
Reservation” and holding that under the “Indian sovereignty doctrine,”
tribal nations “hav[e] territorial boundaries, within which their authority is
exclusive . . . [and] state law . . . ha[s] no role to play within the reservation
boundaries”).

¶10 More than forty-five years ago, in Enriquez v. Superior Court,
this court squarely addressed the precise issue raised in this
appeal—whether state courts may exercise jurisdiction over a civil tort
action brought by a non-tribal member against an enrolled tribal member
for damages resulting from a motor vehicle accident that occurred on a state
highway within the limits of the tribal reservation on which the enrolled
member resided. 115 Ariz. 342, 342–43 (App. 1977). To resolve that
question, this court looked to: (1) the United States Supreme Court’s
opinion in Williams, 358 U.S. at 220, 222–23, holding that absent federal

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legislation, state courts may not exercise jurisdiction over on-reservation
activity because doing so would undermine the authority of tribal courts
and infringe on the right of tribal members to make their laws and govern
themselves; and (2) a federal criminal statute, 18 U.S.C. § 1151(a), which
defines “Indian country” to include “all land within the limits of any Indian
reservation . . . including rights-of-way running through the reservation.”
Enriquez, 115 Ariz. at 343. While acknowledging that 18 U.S.C. § 1151, on its
face, “is concerned only with criminal jurisdiction,” this court construed its
definition of “Indian country” as applying “as well to questions of civil
jurisdiction,” concluding that the tribe’s “granting of an easement” to the
state for the highway “did not alter the status of the highway as being
‘Indian country.’” Id. Having determined that the accident occurred on
tribal land, this court reasoned that under Williams’ infringement test, the
state court lacked subject matter jurisdiction over the tort action brought
against a tribal member: “[Tribes’] right of self-government includes the
right to decide what conduct on the reservation will subject the Indians
living there to civil liability in the Tribal court.” Id.

¶11 In her briefing, Medina concedes that no Arizona case has
overruled Enriquez, but she argues that subsequent case law calls into
question its continuing viability. Specifically, she contends that since
Enriquez, the jurisdictional analysis has evolved considerably under federal
precedent—most notably, a series of United States Supreme Court cases
—to apply much stricter limitations on the reach of tribal jurisdiction.
Accordingly, Medina urges us to “revisit and reverse” Enriquez applying
the current jurisdictional framework.

¶12 In addressing Medina’s argument, we briefly return to
Williams. In that case, the United States Supreme Court held that Arizona
courts lacked jurisdiction over a civil collection action brought by a non-tribal
member—who operated a general store on the Navajo reservation—against
two enrolled tribal members—who purchased goods from the store on credit.
358 U.S. at 217–18, 223. Recounting the lengthy and complex history of
relations between tribes and the federal government, the Supreme Court
distilled the relevant inquiry to whether “state action” would “infringe[] on
the right of reservation Indians to make their own laws and be ruled by
them.” Id. at 218–21. Absent federal legislation expressly limiting the
authority granted to the Navajos in the Treaty of 1868, the Supreme Court
held that Arizona state courts may not exercise authority over enrolled tribal
members for on-reservation conduct, even when such conduct involves
non-tribal members, because doing so would undermine tribal authority.
Id. at 223.

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¶13 Without overruling Williams, the United States Supreme
Court, in subsequent cases, outlined a separate analytic framework for
resolving conflicts between state and tribal jurisdiction. While the Williams’
infringement test considers the scope of state court jurisdiction over an enrolled
tribal member, these more recent cases approach jurisdictional conflicts
differently, exploring the extent of tribal court jurisdiction over non-tribal
members. C’Hair v. Dist. Court of Ninth Judicial Dist., 357 P.3d 723, 728, ¶ 17
(Wyo. 2015) (contrasting the infringement test pronounced in Williams,
“which looks to whether a state’s exercise of jurisdiction over a matter will
infringe on tribal self government,” with the analytic approach adopted in
Montana v. United States, 450 U.S. 544, 547–48 (1981), “which looks to
whether tribal sovereignty requires tribal jurisdiction over a non-Indian or
non-Indian activities”).

¶14 In Montana, the United States Supreme Court considered a
tribe’s authority to prohibit hunting and fishing by non-tribal members on land
within the tribe’s territorial boundaries but held by non-tribal members in
fee simple under an allotment act that permitted enrolled tribal members to
“alienate [their] land to a non-Indian after holding it for 25 years.” Holding
that a tribe has no power to regulate non-tribal members’ activities on land
owned in fee by non-tribal members, the Supreme Court reasoned: “If
Congress had wished to extend tribal jurisdiction to lands owned by
non-Indians, it could easily have done so by incorporating” 18 U.S.C.
§ 1151’s definition of “Indian country” into 18 U.S.C. § 1165, the statute
governing hunting and fishing on tribal land. 450 U.S. at 562. Considering
the scope of the “inherent powers retained by tribes and those divested,”
the Supreme Court determined that tribes lack the authority to
“independently [] determine their external relations” but may exercise
“civil jurisdiction over non-Indians on their reservations, even on
non-Indian fee lands” within their territorial boundaries, when: (1)
non-tribal members enter consensual relationships with the tribe or its
enrolled members, or (2) “the conduct of non-Indians on fee lands within
[the] reservation . . . threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of the tribe.” Id. at
564–66 (concluding the “exercise of tribal power beyond what is necessary
to protect tribal self-government or to control internal relations is
inconsistent with the dependent status of the tribes”).

¶15 While Montana primarily focused on the regulatory authority
of tribes over conduct arising on land held in fee simple by non-tribal
members within tribal territorial boundaries, the circumstances at issue in
Strate, 520 U.S. at 453, involved adjudicatory jurisdiction. In Strate, a
non-tribal member (the plaintiff) driving her car along a highway on tribal

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land (but maintained by the State under a right-of-way) collided with a
commercial vehicle owned and driven by non-tribal members. Id. at
442–43. The plaintiff sued the driver and the commercial vehicle owner in
tribal court in tort for injuries sustained. Id. at 443–44. Pointing to Montana
as “the pathmarking case concerning tribal civil authority over
nonmembers,” the Supreme Court reiterated that “tribes lack civil authority
over the conduct of nonmembers on non-Indian land within a reservation,
subject to two exceptions”: (1) non-tribal members who enter consensual
relationships with the tribe or its enrolled members, and (2) activity that
directly affects the tribe’s political integrity, economic security, health, or
welfare. Id. at 445–47 (emphasis added).

¶16 Rejecting the plaintiff’s contention that the Montana analysis
did not apply because the accident occurred on tribal land, the Supreme
Court reasoned that a right-of-way for a state highway on tribal land is
“equivalent, for nonmember governance purposes, to alienated, non-Indian
land” because it “is open to the public.” Id. at 454 (emphasis added). In other
words, because tribes must consent to such rights-of-way and receive “the
payment of just compensation,” and state highways “[are] subject to the
State’s control,” tort actions against non-tribal members for conduct arising
on such highways falls within the Montana jurisdictional framework. Id. at
454–456 (quoting 25 U.S.C. §§ 324–25). Accordingly, a tribal court may
exercise jurisdiction over an “action against nonmembers” arising on a state
right-of-way only if “one of Montana’s two exceptions” applies. Id. at 456
(emphasis added).

¶17 Quickly dispensing with the first exception, Strate held that
tortious conduct does not qualify as a consensual relationship. Id. at
456–57. Concerning the second exception, the Supreme Court
acknowledged that “careless” driving “on a public highway running
through a reservation endanger[s] all in the vicinity, and surely
jeopardize[s] the safety of tribal members.” Id. at 458. But despite this
generalized danger, the Supreme Court concluded that tribes need
“[n]either regulatory nor adjudicatory authority over [] state highway
accident[s] . . . to preserve” their right “to make their own laws and be ruled
by them,” lest “the exception would severely shrink the rule.” Id. at 457–59
(internal quotations omitted). Accordingly, the Supreme Court determined
that the “Montana rule”—no tribal court jurisdiction over non-tribal
members’ conduct on “non-Indian fee land”—applied, not its exceptions.
Id. at 459.

¶18 Harmonizing Montana and Strate, the United States Supreme
Court in Nevada v. Hicks expressly “reject[ed] tribal authority to regulate

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nonmembers’ activities on land over which [a] tribe c[an] not assert a
landowner’s right to occupy and exclude.” 533 U.S. 353, 359 (2001)
(emphasis added) (internal quotation omitted). Further distilling the scope
of tribal authority, the Supreme Court declared: “[T]he absence of tribal
ownership has been virtually conclusive of the absence of tribal civil
jurisdiction; with one minor [taxing authority] exception, we have never
upheld under Montana the extension of tribal civil authority over
nonmembers on non-Indian land.” Id. at 360 (emphasis added). To exercise
jurisdiction over non-tribal members, the Supreme Court explained, tribal
authority “must be connected to th[e] right of the Indians to make their own
laws and be governed by them.” Id. at 361. Recognizing that precedent
historically described tribes as “sovereign entities,” the Supreme Court
clarified that under the modern jurisdictional framework, “[s]tate
sovereignty does not end at a reservation’s border,” meaning states “may
regulate the activities even of tribe members on tribal land” when the state’s
interests “are implicated.” Id. at 361–62 (emphasis added).

¶19 Having reviewed these governing United States Supreme
Court decisions, we return to the facts of this case. Because Arizona has not
assumed general civil jurisdiction over Indian tribes and their members as
federal law would allow, Pub. L. 83-280, § 3, 67 Stat. 590, its authority to
address disputes involving tribal members for on-reservation conduct is
limited by the jurisdictional framework pronounced by the United States
Supreme Court. See R.J. Williams Co. v. Fort Belknap Housing Authority, 719
F.2d 979, 983 n.3 (9th Cir. 1983); see also 28 U.S.C. §§ 1322, 1360.

¶20 The question is whether the state court may preside over a tort
action against enrolled tribal members predicated on conduct that occurred
within the tribe’s territorial boundaries. To answer that question, we must
examine the scope of state court jurisdiction, not determine the extent of
tribal court jurisdiction. Cf. Smith Plumbing Co., Inc. v. Aetna Cas. & Sur. Co.,
149 Ariz. 545, 550 (App. 1984) (concluding that the existence of jurisdiction
in tribal court does not preempt jurisdiction in state court). Therefore, this
case falls squarely under Williams’ framework, which holds that a state
court may exercise jurisdiction over a dispute brought by a non-tribal
member against an enrolled tribal member for conduct arising on tribal
land only if that exercise of jurisdiction does not violate federal law or
infringe on the right of enrolled tribal members “to make their own laws
and be ruled by them.” 358 U.S. at 220.

¶21 Under this infringement test, state courts lack subject matter
jurisdiction if: (1) a non-tribal member brings a claim against an enrolled
tribal member for conduct occurring on that member’s reservation, or (2)

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all parties are enrolled tribal members of the same tribe and the claim
involves conduct occurring on that tribe’s reservation. Winer v. Penny Enter.,
Inc., 674 N.W.2d 9, 12–13 (N.D. 2004) (citing Williams, 358 U.S. at 223; Fisher
v. District Court, 424 U.S. 382, 387–89 (1976)); see also Smith Plumbing Co.,
Inc., 149 Ariz. 524, 529 (1986) (noting the United States Supreme Court “has
repeatedly recognized that tribal courts have inherent power to adjudicate
civil disputes affecting the interests of Indians and non-Indians which are
based upon events occurring on the reservation”) (citation omitted).
Medina does not contest that a tribal court has exclusive subject matter
jurisdiction in such cases. Instead, she argues that under Montana and its
progeny, a state-maintained highway—located on a right-of-way granted
to the state from a tribal nation—is not tribal land. Stated differently,
according to Medina, U.S. Highway 89, for jurisdictional purposes, is
non-Indian fee land.1

¶22 In evaluating a state court’s subject matter jurisdiction over a
case involving both enrolled tribal member and non-tribal member parties,
“whether the nonmember party is a plaintiff or a defendant” is the “most
important” factor. Salish Kootenai Coll., 434 F.3d at 1131, 1135 (“The
ownership status of the land . . . is only one factor to consider[.]”). In other
words, “[i]t is the membership status of the unconsenting party, not the
status of real property, that counts as the primary jurisdictional fact.” Hicks,
533 U.S. at 382 (Souter, J., concurring); see also Smith Plumbing Co., Inc., 149
Ariz. at 530 (“A reservation Indian could not reasonably expect to be haled
into Arizona state court because of [actions] occurring wholly on the
reservation.”); State v. Zaman, 194 Ariz. 442, 442, ¶ 2 (1999) (“For
on-reservation activities, the status of the defendant as an Indian or
non-Indian is the sine qua non of federal Indian law.”); State v. Zaman, 190
Ariz. 208, 210 (1997) (explaining that “following Williams, . . . application of

1 In her reply brief, Medina alternatively argues, for the first time, that
the Defendants’ alleged tortious conduct occurred on state land because
Cody began drinking—and Chee entrusted him with Grandson’s vehicle
—long before reaching the section of U.S. Highway 89 traversing the
Navajo Nation (as demonstrated by Cody’s blood alcohol content of .336).
She also asserts that Cody began speeding and driving erratically at least
one mile before Grandson’s vehicle crossed into the Navajo Nation’s
territorial boundaries. Because Medina failed to raise these arguments in
her opening brief—instead framing the appeal as presenting “a purely legal
question”—we do not address them. In re Marriage of Pownall, 197 Ariz. 577,
583, ¶ 25 n.5 (App. 2000) (holding arguments raised for the first time in a
reply brief are waived).

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the infringement test in the adjudicatory setting has protected Indian
defendants from nonconsensual state court jurisdiction”).

¶23 Without question, the United States Supreme Court
concluded in Strate that the state-maintained highway on which the
accident occurred was the equivalent of non-Indian fee land. 520 U.S. at 454.
But in reaching that conclusion, the Supreme Court carefully limited its
equivalence determination to actions against non-tribal members. Id.; see
also Salish Kootenai Coll., 434 F.3d at 1137 (explaining that the United States
Supreme Court framed the issue in Strate “as concerning the adjudicatory
authority of tribal courts over personal injury actions against defendants who
are not tribal members,” ultimately holding that “tribal courts may not
entertain claims against nonmembers arising out of accidents on state
highways”) (quoting Strate, 520 U.S. at 442). Thus, under Strate, the
classification of a right-of-way located within a tribe’s territorial
boundaries, for jurisdictional purposes, depends upon the enrolled
member or non-tribal member status of the defendant.

¶24 As Medina correctly notes, the United States Supreme Court,
since Montana, has curtailed the scope of tribal authority, and may yet hold
that state rights-of-way within tribal territorial boundaries are the
equivalent of non-Indian fee land for jurisdictional purposes in all cases,
regardless of the nonconsenting party’s status. See Winer, 674 N.W.2d at 15,
¶ 15 (stating “[i]t is not yet clear whether Strate forecasts” a complete
“erosion” of the Williams’ analysis for “state rights-of-way”) (quoting W.
Canby, Jr., American Indian Law in a Nutshell, 175–76 (3rd ed. 1998)). But to
date, the Supreme Court has not done so, nor do we.

¶25 Given its precise limiting language, we conclude that Strate
does not supplant Williams. Applying the infringement test, we hold that
the broad authority granted to the Navajo tribe to govern its enrolled tribal
members under the Treaty of 1868 precludes the state court from exercising
jurisdiction over this tort action. As federal precedent makes clear, a
plaintiff bringing a claim against an enrolled tribal member cannot hale that
nonconsenting defendant into state court for torts arising from conduct on
the defendant’s reservation, even on a state highway open under an
easement. In this case, had the superior court resolved Medina’s claims on
the merits, it would have undermined the Navajo tribal court’s authority
and infringed on the Navajos’ ability “to make their own laws and be ruled
by them.” Williams, 358 U.S. at 220; Salish Kootenai Coll., 434 F.3d at 1140–41
(explaining a tribe’s “system of tort is an important means by which [it]
regulate[s] the domestic and commercial relations of its members”); see also
Holly C. v. Tohono O’Odham Nation, 247 Ariz. 495, 515, ¶ 59 (App. 2019)

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(“Arizona courts properly refuse to accept jurisdiction over a case when
doing so ‘would undermine the authority of the tribal courts.’”) (quoting
Williams, 358 U.S. at 223). Therefore, the superior court properly dismissed
the consolidated complaints for lack of subject matter jurisdiction.2

CONCLUSION

¶26 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

2 In reaching our conclusion, we recognize that at least one state court,
in grappling with a jurisdictional conflict in a tort action brought by a
non-tribal member against enrolled tribal members, determined that under
“the principles announced in Strate,” a state highway “is the equivalent of
non-Indian fee land” for jurisdictional purposes. C’Hair, 357 P.3d at 725,
738, ¶¶ 1, 49–50. This reasoning is not binding and, in our view, stops short
of giving full effect to the precise language used by the United States
Supreme Court in Strate limiting the application of its equivalence
determination to cases brought against non-tribal members.

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