Ford Motor Co. v. Todecheene

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FORD MOTOR COMPANY, 
Plaintiff-Appellee,
v.
JOE R. TODECHEENE, as the
surviving natural parent of Esther
Todecheene, deceased; MARY No. 02-17048
TODECHEENE, as the surviving
natural parent of Esther  D.C. No.
CV-02-01100-PGR
Todecheene, deceased,
Defendants-Appellants,
and
NAVAJO NATION DISTRICT COURT;
LEROY S. BEDONIE, The Honorable,
Defendants.

297
298 FORD MOTOR CO. v. TODECHEENE
FORD MOTOR COMPANY, 
Plaintiff-Appellee,
v.
JOE R. TODECHEENE, as the
surviving natural parent of Esther
Todecheene, deceased; MARY No. 02-17165
TODECHEENE, as the surviving
natural parent of Esther  D.C. No.
CV-02-01100-PGR
Todecheene, deceased, OPINION
Defendants,
and
NAVAJO NATION DISTRICT COURT;
LEROY S. BEDONIE, The Honorable,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted
July 7, 2003—Pasadena, California
Filed January 11, 2005
Before: Barry G. Silverman, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson;
Dissent by Judge William A. Fletcher
FORD MOTOR CO. v. TODECHEENE 301
COUNSEL
Edward D. Fitzhugh, Tempe, Arizona, for defendants-
appellants Joe R. and Mary Todecheene.
Luralene D. Tapahe, Staff Attorney, Navajo Nation Depart-
ment of Justice, Window Rock, Navajo Nation, Arizona, for
defendants-appellants Navajo Nation District Courts.
Richard A. Derevan, Snell & Wilmer, L.L.P., Irvine, Califor-
nia, for plaintiff-appellee Ford Motor Company.
OPINION
RAWLINSON, Circuit Judge:
In this case, we ascertain the extent to which a tribal court
may exercise jurisdiction over a products liability action aris-
302 FORD MOTOR CO. v. TODECHEENE
ing out of an accident occurring on tribal trust land. Because
we conclude that the tribal court lacked jurisdiction over Ford
Motor Company (Ford), we AFFIRM the district court.
I. FACTS AND PROCEDURAL HISTORY
Tragically, Esther Todecheene, an on-duty law enforcement
officer employed by the Navajo Department of Public Safety,
died when her Ford Expedition patrol vehicle rolled over
while she was driving on a dirt road within the Navajo Nation.
Ford Motor Co. v. Todecheene, 221 F. Supp. 2d 1070, 1072
(D. Ariz. 2002). The road is a reservation road, maintained by
the Tribe. There is no federal or state right-of-way, and the
road is not located on non-Indian fee land.
The cause of the rollover accident is disputed. Ford asserts
that Todecheene was not wearing a seatbelt. Esther’s parents,
the Todecheenes, counter that the Ford Expedition was defec-
tive and the seatbelt was not working properly.
The Todecheenes sued Ford in Navajo tribal court alleging
that the Ford Expedition, designed and manufactured in Mich-
igan, was defective and unreasonably dangerous in design or
manufacture. Ford answered the complaint, denying the alle-
gations. Ford also challenged the tribal court’s subject matter
jurisdiction over the action and personal jurisdiction over
Ford, and removed the case to federal court.1 The district
court subsequently remanded the matter to tribal court, ruling
that the federal removal statute, 28 U.S.C. § 1441, did not
provide for removal of actions from tribal court to federal
court.
Ford Motor Credit Company (Ford Credit), Ford’s wholly-
owned subsidiary, financed the purchase of the Expedition
1
Because our resolution of the subject matter jurisdiction question is
outcome-determinative, we need not address the personal jurisdiction
issue.
FORD MOTOR CO. v. TODECHEENE 303
driven by Todecheene, as well as six bulk-purchases of vehi-
cles over an eight-year period. Considering this circumstance,
the tribal court determined that the resultant lease-sale con-
tracts created a consensual relationship between Ford and the
tribe. The court relied in part upon a contract provision stating
that “[a]ll actions which arise out of this Lease or out of the
transaction it represents shall be brought in the courts of the
Navajo Nation.” Additionally, the court referenced the fact
that Ford conducted advertising targeted toward residents of
the Navajo reservation. The tribal court also determined that
it had subject matter jurisdiction over the action under a tribal
statute providing for money damages in tort cases. The court
concluded that product liability and wrongful death claims fell
within the ambit of the tribal statute, even though the tribal
court had never decided a product liability claim.2
Ford did not appeal the tribal court ruling. Instead it sought
injunctive and declaratory relief in federal court to halt the
tribal court proceeding. The district court issued the requested
preliminary injunction, analyzing the tribal court’s jurisdic-
tion under Montana v. United States, 450 U.S. 544 (1981).
The district court also held that Ford was not required to
exhaust tribal court remedies before challenging the tribal
court’s jurisdiction in federal court, because jurisdiction was
plainly lacking and exhaustion would serve only to delay the
proceedings.
The Todecheenes and the Navajo Nation filed timely
appeals.
II. STANDARDS OF REVIEW
Whether a tribal court properly exercised its jurisdiction is
2
The Appellants did not argue this theory of subject matter jurisdiction
in their Opening Briefs. See Howard v. Everex Sys., Inc., 228 F.3d 1057,
1069 n.18 (9th Cir. 2000) (concluding that failure to provide any legal
argument in support of a contention waived that argument).
304 FORD MOTOR CO. v. TODECHEENE
a question of law reviewed de novo. AT&T Corp. v. Coeur
D’Alene Tribe, 295 F.3d 899, 904 (9th Cir. 2002). The tribal
court’s findings of fact are reviewed under a clearly erroneous
standard. FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311,
1313 (9th Cir. 1990).
“[W]hether the district court was required to abstain from
granting or denying an injunction when a party has failed to
exhaust tribal court remedies” is reviewed de novo. El Paso
Nat’l Gas Co. v. Neztsosie, 136 F.3d 610, 613 (9th Cir. 1998),
rev’d on other grounds, 526 U.S. 473 (1999).
A district court’s order regarding preliminary injunctive
relief is reviewed for abuse of discretion. See Elvis Presley
Enters., Inc. v. Passport Video, 349 F.3d 622, 626 (9th Cir.
2003). The district court abuses its discretion when it bases its
decision on an erroneous legal standard or on clearly errone-
ous findings of fact. Id. Where the district court’s ruling rests
solely on law and the facts are established or undisputed,
review is de novo. Sammartano v. First Jud. Dist. Ct., 303
F.3d 959, 964-65 (9th Cir. 2002).
III. DISCUSSION
A. The Tribal Court’s Subject Matter Jurisdiction
Over the Products Liability Action
[1] Analysis of Indian tribal court civil jurisdiction begins
with Montana v. United States. In that case the United States
Supreme Court held that an Indian tribe could not regulate
hunting and fishing by non-Indians on non-Indian owned fee
land within the reservation. The Court acknowledged that “In-
dian tribes retain inherent sovereign power to exercise some
forms of civil jurisdiction over non-Indians on their reserva-
tions, even on non-Indian fee lands.” 450 U.S. at 565.3 The
3
The tribal court did not assert jurisdiction pursuant to a treaty or federal
statute.
FORD MOTOR CO. v. TODECHEENE 305
Court then set out two instances in which tribes could exercise
such sovereignty: (1) “A tribe may regulate, through taxation,
licensing, or other means, the activities of nonmembers who
enter consensual relationships with the tribe or its members,
through commercial dealings, contracts, leases, or other
arrangements.” Id. (citations omitted); and (2) “A tribe may
also retain inherent power to exercise civil authority over the
conduct of non-Indians on fee lands within its reservation
when that conduct threatens or has some direct effect on the
political integrity, the economic security, or the health and
welfare of the tribe.” Id. at 566 (citations omitted).
[2] The United States Supreme Court relied upon Montana
in Strate v. A-1 Contractors, 520 U.S. 438 (1997), holding
that a tribal court had no jurisdiction to hear a personal injury
lawsuit brought by a tribal member against a non-tribal mem-
ber driver and his non-tribal employer concerning a car acci-
dent that occurred on a “State highway running through [a
reservation].” Id. at 442. The Court explained that, under
Supreme Court precedent, “absent express authorization by
federal statute or treaty, tribal jurisdiction over the conduct of
nonmembers exists only in limited circumstances.” Id. at 445.
The Court characterized Montana as limiting tribal authority
over the conduct of nonmembers on non-Indian land within a
reservation subject to two articulated exceptions: (1) non-
members who enter into consensual relationships with the
tribe or its members, or (2) activities that directly affect the
tribe’s political integrity, economic security, health, or wel-
fare. Id. at 446. The Court ultimately determined that Mon-
tana governed the case because the road upon which the
accident took place, although on tribal land, was subject to a
right-of-way held by the State of North Dakota. This right-of-
way rendered the stretch of road “equivalent, for nonmember
governance purposes, to alienated, non-Indian land.” Id. at
454. The Court “express[ed] no view on the governing law or
proper forum when an accident occurs on a tribal road within
a reservation.” Id. at 442.
306 FORD MOTOR CO. v. TODECHEENE
The Court addressed Montana again in Atkinson Trading
Company, Inc. v. Shirley, 532 U.S. 645 (2001). In Atkinson,
the Court held that the Navajo Nation lacked authority to
impose a hotel occupancy tax on nonmembers who stayed at
a hotel located on non-Indian fee land within the tribe’s reser-
vation. The Court found that because the tax fell on nonmem-
bers on non-tribal land, the main Montana rule applied. As the
tax fell within neither the consensual relationship exception
nor the political integrity exception, it was invalid. Id. at 659.
In a concurring opinion, Justice Souter, joined by Justices
Kennedy and Thomas, agreed with the majority that Montana
set out the general law of tribal jurisdiction over non-Indians.
According to Justice Souter, “the status of territory within a
reservation’s boundaries as tribal or fee land may have much
to do . . . with the likelihood (or not) that the facts will exist
that are relevant under the exceptions to Montana’s ‘general
proposition’ that ‘the inherent sovereign powers of an Indian
tribe do not extend to the activities of nonmembers of the
tribe.’ That general proposition is, however, the first principle,
regardless of whether the land at issue is fee land, or land
owned by or held in trust for an Indian tribe.” Id. at 659-60
(Souter, J., concurring) (internal quotation marks omitted). In
other words, Justice Souter would find a presumption of no
tribal jurisdiction (subject to the two Montana exceptions)
over nonmembers regardless of the status of the land.
The Supreme Court continued its development of the Mon-
tana rule when it decided Nevada v. Hicks, 533 U.S. 353
(2001). Nevada game wardens and tribal police officers exe-
cuted a search warrant issued by a state court upon the resi-
dence of Floyd Hicks, a tribal member, whose home was on
the reservation. Hicks sued various state and tribal officials,
contending that the search exceeded the bounds of the war-
rant, and that some of his property was damaged. After some
parties were dismissed, Hicks’ action proceeded in tribal court
against several state game wardens in their individual capaci-
ties.
FORD MOTOR CO. v. TODECHEENE 307
The game wardens and the State of Nevada filed a federal
declaratory relief action seeking a ruling that the tribal court
lacked jurisdiction over the case. The district court and we
ruled in favor of tribal jurisdiction. We concluded that the
tribal court had “civil jurisdiction” because the Tribe had the
“right to adjudicate disputes arising out of actions within
tribal regulatory authority that take place on Indian land[.]”
Nevada v. Hicks, 196 F.3d 1020, 1031-32 (9th Cir. 2000).
The Supreme Court disagreed, holding that the tribal court
lacked jurisdiction to hear the claims against the state officers,
even though the search occurred on tribal land. 533 U.S. at
374. The Court clarified that its holding was limited to the
question of tribal court jurisdiction over state officers, and
that it was leaving open the question of tribal court jurisdic-
tion over nonmember defendants in general. Id. at 358 n.2.
In reaching its conclusion, the Supreme Court applied “the
general rule of Montana . . . to both Indian and non-Indian
land. The ownership status of the land, in other words, is only
one factor to consider in determining whether regulation of
the activities is ‘necessary to protect tribal self-government or
to control internal relations.’ ” Id. at 359-60. The Court ulti-
mately held neither Montana exception applied to bestow
jurisdiction upon the Tribe.
Six justices in Nevada v. Hicks endorsed the premise first
articulated by Justice Souter in Atkinson that the general Mon-
tana rule applies equally to conduct by nonmembers on tribal
land and on non-Indian land within a reservation. Id. at 381
(Souter, J., concurring, joined by Kennedy, J., and Thomas,
J.) (“After Strate, it is undeniable that a tribe’s remaining
inherent civil jurisdiction to adjudicate civil claims arising out
of acts committed on a reservation depends in the first
instance on the character of the individual over whom juris-
diction is claimed, not on the title to the soil on which he
acted.”); id. at 387 (O’Connor, J., concurring in part and con-
curring in judgment, joined by Stevens, J., and Breyer, J.)
308 FORD MOTOR CO. v. TODECHEENE
(“Today, the Court finally resolves that Montana v. United
States governs a tribe’s civil jurisdiction over nonmembers
regardless of land ownership.” (citation omitted)). As previ-
ously noted, Justice Scalia’s majority opinion is somewhat
equivocal on the point, stating in footnote two that it is leav-
ing the question open, but later seemingly applying the gen-
eral Montana rule, despite the fact that the search occurred on
Indian land. Justice Ginsburg published a separate concur-
rence in order to note that the Court had not created any gen-
eral rule concerning nonmember defendants in tribal courts.
Id. at 386 (Ginsburg, J., concurring) (“The Court’s decision
explicitly ‘leaves open the question of tribal-court jurisdiction
over nonmember defendants in general.’ ” (quoting id. at 358
n.2)).
The Todecheenes and the tribe assert that the general Mon-
tana rule does not apply because the accident occurred on a
tribal road. This argument draws support from two of our
recent decisions. The first case, Allstate Indemnity Co. v.
Stump, 191 F.3d 1071, 1072 (9th Cir. 1999), decided prior to
the Supreme Court’s Hicks decision, involved an action aris-
ing from a car accident on a road within a reservation. The
driver of the car and both passengers, who were killed in the
accident, were members of the Chippewa Cree Tribe. The
driver was insured by Allstate through a policy purchased out-
side the reservation. Id. Eventually, the coverage issue was
resolved, but an insurance bad faith action remained. Id. at
1073. Allstate brought a federal action challenging the tribal
court’s jurisdiction over the bad faith action. The district court
ruled that the tribal court had jurisdiction under the “consen-
sual relationship” exception set forth in Montana, holding that
“the dispute arose out of the consensual relationship between
Allstate and its insured[.]” Id. We determined that the “Mon-
tana rule governs only disputes arising on non-Indian fee
land, not disputes on tribal land,” and stayed the federal court
action to allow exhaustion of the jurisdictional question
(including the question of whether the cause of action arose
FORD MOTOR CO. v. TODECHEENE 309
on the tribal road where the accident took place, or at All-
state’s off-reservation offices). Id. at 1074, 1076.
In the second and more recent case, McDonald v. Means,
309 F.3d 530 (9th Cir. 2002) (amended opinion), a tribal
member brought an action against a nonmember whose horse
had wandered onto a BIA road within the reservation, causing
an accident. The horse owner sued to enjoin the tribal court
proceeding for lack of jurisdiction. We held that the BIA road
could not be considered equivalent to non-Indian fee land and,
applying Strate, concluded that the tribal court had jurisdic-
tion over the suit. The amended opinion distinguished the
Supreme Court’s Hicks decision by concluding that the hold-
ing in Hicks is limited to suits against state officers enforcing
state law, and that the presumption against jurisdiction in
Montana and Strate applies only to suits concerning activities
of nonmembers on non-Indian land. Id. at 540 & n.9.
The district court in this case in turn distinguished McDon-
ald on two grounds. First, the court determined that although
this case and McDonald both involved car accidents, the
underlying theory in this case is products liability and thus the
status of the land is less important. The court noted that appli-
cation of McDonald to product liability actions “is problem-
atic because any manufacturer, or any individual, would be
subject to litigation in tribal court simply because the injury
occurred on Indian land.” 221 F. Supp. 2d at 1081.
Second, the court noted that McDonald’s horse wandered
onto the tribal road and that the tribe had a significant interest
in exercising its sovereignty to keep livestock off its public
roads. Id. No similar trespassory interest exists in a product
liability case.
After distinguishing the McDonald holding, the district
court proceeded to analyze the case beginning with the gen-
eral Montana premise “that tribal courts do not generally have
jurisdiction over nonmembers.” Id. (citation omitted). The
310 FORD MOTOR CO. v. TODECHEENE
district court then addressed the two Montana exceptions: (1)
consensual relations, and (2) tribal self-government.
The consensual relations contention in this case is predi-
cated upon the fact that Ford Credit, the wholly-owned sub-
sidiary of Ford, financed the vehicle involved in the accident
and bulk-purchases of vehicles by the Navajo tribe over sev-
eral years. Id. The financing agreements provided that “ac-
tions which arise out of this Lease or out of the transaction it
represents shall be brought in the courts of the Navajo
Nation.” Id. at 1082.
The district court identified Strate as its guidepost for
assessing whether this case falls within the consensual rela-
tionship exception. Id. The court described the relationships
discussed in Strate that fell within the exception — on-
reservation direct sales, taxing of nonmember-owned live-
stock within reservation boundaries, and taxing of businesses
operating on the reservation. Id. at 1082-83. The district court
concluded that “[m]easured against these cases, a products
liability case involving a single car roll-over and an allegedly
defective seatbelt presents a questionable consensual relation-
ship at best . . . . [T]he mere fact that a non-Indian was on the
reservation, or a manufacturer’s product was in use, is not
enough to confer jurisdiction in the tribal courts over all con-
ceivable claims arising out of the non-Indian’s presence on
the reservation.” Id. at 1083. The district courts also dis-
counted the effect of the forum selection clause in the financ-
ing agreement because, in the court’s view, the lawsuit was
“wholly unrelated” to the agreement between the tribe and
Ford Credit.
The district court also rejected the notion that the tribal
self-government exception applied in this case. The court con-
cluded that “a single vehicle roll-over underlying a products
liability lawsuit does not require a unique tribal court remedy
and is not likely to be the type of conduct that the Supreme
Court intended to fall within the second Montana exception
FORD MOTOR CO. v. TODECHEENE 311
as it does not threaten or have a sufficiently adverse effect on
the political integrity, the economic security, or the health or
welfare of the tribe as a whole.” Id. at 1084.
[3] The district court’s thorough discussion of the seminal
cases on tribal jurisdiction underscores the somewhat equivo-
cal nature of governing precedent. In Montana, the United
States Supreme Court pointed out that 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, and so cannot survive with-
out express congressional delegation.” 450 U.S. at 564 (cita-
tions omitted). Despite this signal of limited tribal
jurisdiction, in Strate, the Court expressly declined to decide
the scope of tribal jurisdiction “when an accident occurs on a
tribal road within a reservation.” 520 U.S. at 442.
In Atkinson, the Supreme Court observed that “Indian tribes
have lost any right of governing every person within their lim-
its except themselves[.]” 532 U.S. at 650 (citation omitted).
Nevertheless, the Court decided the tribal jurisdiction ques-
tion on a much narrower basis: that the Tribe’s sovereignty
did not extend to allow taxation of nonmember activities
(hotel stays) on nonmember land within a reservation. Id. at
659.
In Hicks, a majority of the justices endorsed the concept
that the Montana rule applies equally to conduct by nonmem-
bers on tribal land as to activities by nonmembers on non-
tribal land. 533 U.S. at 381, 387. However, the Court’s opin-
ion expressly reserved for a future date “the question of tribal-
court jurisdiction over nonmember defendants in general.” Id.
at 358 n.2.
In McDonald, our post-Hicks ruling on tribal jurisdiction,
we distinguished Hicks by noting the Supreme Court’s reser-
vation of the issue of tribal court jurisdiction over nonmem-
bers generally. 309 F.3d at 540. We emphasized the limited
312 FORD MOTOR CO. v. TODECHEENE
holding in Hicks, addressing only “tribal-court jurisdiction
over state officers enforcing state law.” Id. We concluded that
“[t]he limited nature of Hicks’s holding render[ed] it inappli-
cable” where the issue involved nonmember conduct on tribal
land. Id.
We now confront the issue that those cases have studiously
avoided — whether the Tribe may assert jurisdiction over a
nonmember for conduct on tribal land.
We agree with the district court4 that the exercise of tribal
jurisdiction is a less compelling proposition in a product lia-
bility case than in a case such as McDonald, where the Tribe
was protecting its interest in having its roads free from tres-
pass by neighboring livestock. If the mere occurrence of an
accident on the reservation is sufficient to warrant the asser-
tion of jurisdiction, tribal jurisdiction over nonmembers will
become the rule. Such a result is incongruent with the consis-
tently articulated direction from the Supreme Court that tribal
jurisdiction does not automatically track the reservation’s
boundaries. Although the Supreme Court in Strate and in
Hicks left open the question of the scope of tribal jurisdiction
over nonmembers involved in an incident on the reservation,
we cannot ignore the clear guidance from the Court that tribal
jurisdiction is to be limited, rather than expanded. And our
decision in McDonald certainly did not purport to hold that
tribal jurisdiction always exists when an incident occurs on
tribal property. See McDonald, 309 F.3d at 540 (finding juris-
diction under the particular facts of the case).
As we recently clarified in Smith v. Salish Kootenai Col-
4
The dissent makes the point that the district court decision distin-
guished the McDonald case before McDonald was amended. Dissenting
opinion, p. 330. However, the amendments to McDonald primarily
emphasized the tribal status of the land and explained why, in the panel’s
view, the limited ruling in Hicks left Montana intact. These amendments
to Montana in no way undermine the district court’s analysis.
FORD MOTOR CO. v. TODECHEENE 313
lege, 378 F.3d 1048 (9th Cir. 2004), “[a]ny time a tribal court
wishes to exercise civil subject matter jurisdiction over a non-
member of the tribe, the framework in Montana . . . must be
satisfied.” Id. at 1051 (citations omitted). Although “it might
have been [previously] thought that Montana analysis applies
only when there are non-members and the claim arose on
non-tribal land[,] [w]e have . . . rejected such a narrow read-
ing of Montana. Id. at 1051-52 (citation omitted) (emphasis
in the original).
In Smith, we cited our prior decision in Yellowstone County
v. Pease, 96 F.3d 1169, 1174 (9th Cir. 1996), describing our
holding “that a contention that Montana applies only when
there are non-members and the activity arose on non-tribal
land was unpersuasive.” Id. at 1052 (citation and internal quo-
tation marks omitted) (emphasis in Smith). Our holdings in
Smith and Pease inform and support our premise “that the
general rule of Montana applies to both Indian and non-Indian
lands.” Hicks, 533 U.S. at 360. As the Supreme Court
instructed in Strate: “We begin with petitioners’ contention
that National Farmers and Iowa Mutual broadly confirm
tribal court civil jurisdiction over claims against nonmembers
arising from occurrences on any land within a reservation. We
read our precedent differently.” 520 U.S. at 448.
The determinative question, then, is whether the activities
of the nonmembers fall within one of the two exceptions to
the limited tribal sovereignty articulated in Montana: (1) con-
sensual relations, or (2) tribal self-government. Montana, 450
U.S. at 565-66. Otherwise, “the inherent sovereign powers of
an Indian tribe . . . do not extend to the activities of nonmem-
bers of the tribe.” Strate, 520 U.S. at 445-46 (citation omit-
ted).
1. Consensual Relations Exception
Tribes retain the power to “regulate, through taxation,
licensing, or other means, the activities of nonmembers who
314 FORD MOTOR CO. v. TODECHEENE
enter consensual relations with the tribe or its members,
though commercial dealings, contracts, or other arrange-
ments.” Montana, 450 U.S. at 565. Navajo Nation and the
Todecheenes argue that Ford, through its subsidiary, Ford
Credit, had a consensual commercial relationship with the
Navajo Nation because of the lease-purchase agreements with
the Tribe for vehicles (including the Ford Expedition driven
by Todecheene).5
[4] Generally, a fairly direct link between the asserted com-
mercial relationship and the lawsuit is required to support the
assertion of tribal jurisdiction. In Strate, the Supreme Court
determined that the consensual relationship exception did not
apply even though A-1 Contractors (which owned one of the
vehicles involved in the accident) was engaged in subcontract
work on the reservation and therefore had a consensual rela-
tionship with the Tribe. The Court explained that the party
with connections to the Tribe was not a party to the subcon-
tract, “and the Tribes were strangers to the accident.” 520
U.S. at 457 (citation, internal quotation marks and alteration
omitted). The Court determined that the contractual relation-
ship was not the type the Court had in mind when it decided
Montana. Id. (listing situations fitting within the exception,
including lawsuits arising out of on-reservation sales transac-
tions between members and nonmembers; a permit tax on
nonmember-owned livestock within the reservation; a privi-
lege tax on businesses within the reservation; and a tax upon
on-reservation cigarette sales); see also Atkinson, 532 U.S. at
656 (“Montana’s consensual relationship exception requires
that the tax or regulation imposed by the Indian tribe have a
nexus to the consensual relationship itself.”); cf. FMC, 905
F.2d at 1314-15 (holding that tribe had jurisdiction to enforce
tribal employment ordinance on nonmember employer operat-
ing a plant on non-Indian land within the reservation when the
5
This analysis assumes, without deciding, that Ford Credit is the agent
or alter ego of Ford.
FORD MOTOR CO. v. TODECHEENE 315
employer had extensive agreements with the tribe, including
one relating to employment).
[5] The contract between Ford Credit and the Tribe was a
financing agreement for purchased vehicles. Ford Credit
retained a security interest in the Ford Expedition until the
loan was paid in full. The contract also contained a forum
selection clause stating that “[a]ll actions which arise out of
this Lease or out of the transactions it represents shall be
brought in the courts of the Navajo Nation.” This clause does
not appear to cover a product liability tort action. Rather it
seems to be directed toward contract disputes (“actions which
arise out of this Lease”).
[6] This case falls close to the facts of Strate. Although the
Ford Expedition was financed through the contract, Tode-
cheene was not a party to the contract and this action involves
her parents’ lawsuit against Ford, not any lawsuit initiated by
the Tribe. In addition, although “but for” the lease agreement
Todecheene would not have been driving the Ford Expedi-
tion, this product liability action is considerably removed
from the agreement itself. See County of Lewis v. Allen, 163
F.3d 509, 515 (9th Cir. 1998) (en banc) (characterizing the
consensual relation cases as “involv[ing] either direct regula-
tion by a tribe of non-Indian activity on the reservation or
lawsuits between a private party and the tribe or tribal mem-
bers arising from an on-reservation transaction or agreement”)
(citation omitted).
The consensual relations exception recognizes that tribes
have jurisdiction to regulate consensual relations “through
taxation, licensing, or other means.” Montana, 450 U.S. at
565. The question here is whether “other means” includes tort
law. Tort law does constitute a form of regulation. See Young
v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 1000 (9th Cir.
1987) (recognizing that the implied covenant tort regulates the
employment relationship); see also Hodges v. Delta Airlines,
Inc., 44 F.3d 334, 337-38 (5th Cir. 1995) (state tort law may
316 FORD MOTOR CO. v. TODECHEENE
result in “indirect regulatory impact”). But the Supreme Court
in Strate appears to have required that the regulation be more
directly connected to the contract itself.6 It would not be illog-
ical to say that Ford agreed to finance the purchase of the
Expedition, that the Expedition possibly had a defect, and that
the tribe thus has jurisdiction to adjudicate Ford’s liability.
But one would be hard-pressed to argue convincingly that the
product liability action has a direct nexus to the lease itself.
It appears somewhat arbitrary to conclude that the Tribe has
a greater interest in regulating product defects in vehicles it
leases (for which there is a contract between the Tribe and
Ford Credit) than in vehicles it purchases for cash (for which
there would be no contract with Ford Credit).
[7] As the Supreme Court stated so aptly in Atkinson, “[a]
nonmember’s consensual relationship in one area thus does
not trigger tribal civil authority in another — it is not ‘in for
a penny, in for a pound.’ ” 532 U.S. at 656 (citation and inter-
nal quotation marks omitted). We agree with the district court
6
Construing the Montana exception is obviously not an exercise in stat-
utory construction. Nevertheless, when the Supreme Court construes statu-
tory language, it generally follows the interpretative maxim ejusdem
generis. This canon instructs that “[w]here general words follow specific
words in a statutory enumeration, the general words are construed to
embrace only objects similar in nature to those objects enumerated by the
preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 114-115 (2001) (internal citations and quotation marks omitted). Fol-
lowing this interpretive approach, only forms of regulation similar in
nature to taxation and licensing would come within the catch-all phrase
“other means.” Taxation and licensing are direct forms of tribal involve-
ment with the transaction (either by collecting money from it or by autho-
rizing it through a license). The strongest case for the Todecheenes would
be that product liability law directly regulates this transaction by ensuring
that Ford is selling a non-defective product. But that interpretation threat-
ens to swallow the rule, because it is difficult to envision how the Tribe
has a greater interest in regulating defective products that enter the reser-
vation through lease or financing contracts than those that enter the reser-
vation unaccompanied by the execution of a contract. More distinctly,
enforcement through the prolonged and uncertain vehicle of litigation is
worlds apart from taxation and licensing mechanisms.
FORD MOTOR CO. v. TODECHEENE 317
that the existence of the financing agreement did not support
application of the consensual relations exception.
2. Tribal Self-Government
Tribal courts may also exercise jurisdiction over nonmem-
bers where the conduct of nonmembers “threatens or has
some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe.” Montana, 450
U.S. at 566 (citations omitted). The Navajo Nation and the
Todecheenes contend that the Tribe’s inability to adjudicate
the product liability case against Ford would adversely affect
its political integrity and its ability to provide for the health
and welfare of its members.
[8] Despite its seemingly broad sweep, the Supreme Court
in Strate clarified that the self-government exception is rather
narrow:
Read in isolation, the Montana rule’s second excep-
tion can be misperceived. Key to its proper applica-
tion, however, is the Court’s preface: “Indian tribes
retain their inherent power to punish tribal offenders,
to determine tribal membership, to regulate domestic
relations among members, and to prescribe rules of
inheritance for members. . . . But a tribe’s inherent
power does not reach beyond what is necessary to
protect tribal self-government or to control internal
relations.”
Strate, 520 U.S. at 459 (quoting Montana, 450 U.S. at 564)
(alterations and internal quotation marks omitted); see also
County of Lewis, 163 F.3d at 515 (noting the narrowness of
the exception).
Examination of prior court rulings reveals that the circum-
stances of this case fall short of the dictates of the tribal self-
government exception described in Montana.
318 FORD MOTOR CO. v. TODECHEENE
In Hicks, the United States Supreme Court reiterated “that
what is necessary to protect tribal self-government and control
internal relations can be understood by looking at the exam-
ples of tribal power to which Montana referred . . . These
examples show, we said, that Indians have the right to make
their own laws and be ruled by them[.]” 533 U.S. at 360-61
(citations, internal quotation marks and alteration omitted).
“Tribal assertion of regulatory authority over nonmembers
must be connected to that right of the Indians to make their
own laws and be governed by them.” Id. (citation omitted).
[9] In Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997),
we explained that a traffic accident occurring on a road run-
ning through a reservation does not implicate the type of
inherent power concerns necessary to meet the second Mon-
tana exception. In addressing this issue, we noted that the
Supreme Court specifically rejected the argument “that a traf-
fic accident injuring a tribal member sufficiently affects the
economic security, political integrity, or health and welfare of
the tribe. . .” Id. at 814 (internal citation omitted). The
Supreme Court explained that it had rejected an identical
argument in Strate, reflecting that “[u]ndoubtedly, those who
drive carelessly on a public highway running through a reser-
vation endanger all in the vicinity, and surely jeopardize the
safety of tribal members. But if Montana’s second exception
requires no more, the exception would severely shrink the
rule.” Id. (citation omitted). Although the Wilson case
involved a public highway running through a reservation and
this case concerns a tribal road running through a reservation,
no principled basis exists for finding that in the former
instance an automobile accident implicates tribal self-
governance and in the latter instance it does not.
The dissent makes much of the fact that the second Mon-
tana exception was tailored, and precisely worded, for “cases
involving conduct on non-Indian fee lands within the reserva-
tion.” Dissenting opinion, p. 323; see also p. 328. However,
the contention that the Montana exceptions apply only to con-
FORD MOTOR CO. v. TODECHEENE 319
duct on non-Indian fee land was expressly repudiated by
Hicks. See 533 U.S. at 360 (noting “that the general rule of
Montana applies to both Indian and non-Indian land”)
(emphasis added).
Our colleague in dissent also reminds us that “tribal owner-
ship of the land on which an incident occurs is a ‘significant’
factor that ‘may sometimes be dispositive.’ ” Dissenting opin-
ion, p. 326 (emphasis added). But sometimes is not always.
And this case is not one of those times when ownership
should be considered a dispositive factor in the Montana anal-
ysis. There is absolutely nothing in the record to support the
premise that the status of the land impacted potential liability
in this case. This case does not involve encroachment upon
tribal land, damage to tribal land, interference with the use of
tribal land, or any other effect upon tribal land that might
prove dispositive.
The dissent also chastises us for not being more verbose in
distinguishing McDonald. Dissenting opinion, p. 330. How-
ever, verbosity is not required to state what the McDonald
panel itself recognized: the holding in McDonald is not a
holding for all seasons and all reasons. As we recognized in
Smith, the panel in McDonald held only “that the exercise of
jurisdiction in that case was permissible under Montana.” 378
F.3d at 1052, n.4 (internal quotation marks omitted) (empha-
sis added). Central to McDonald’s ruling was the fact that a
non-member’s horse had wandered onto the roads of the res-
ervation, thereby impacting the interest of the tribe in keeping
its roadways free from obstruction. No similar circumstance
existed in this case.
The McDonald panel did not purport to rule that tribal
jurisdiction is mandated when an incident occurs on tribal
land. Rather, its holding was limited to the facts of that partic-
ular case. As we ruled in Smith, [b]ecause the general rule of
Montana applies to both Indian and non-Indian land . . . we
are required to start with a presumption that the tribal court
320 FORD MOTOR CO. v. TODECHEENE
did not have jurisdiction.” 378 F.3d at 1053 (citations and
internal quotation marks omitted). That presumption can be
rebutted only if the conduct falls within one of the articulated
Montana exceptions. See id. Nothing in McDonald compels
a different approach.
As we noted in Smith, “if the plaintiff is a member [as are
the Todecheenes], the defendant is a non-member [as is Ford],
and the action arises on tribal lands [as occurred in this case],
the subtleties of the cases have led us to differing results . . .
depending on the precise facts.” Id. (citations omitted). Under
the precise facts of this case, where ownership of the land did
not impact liability in any way, McDonald does not dictate
the outcome.
[10] That brings us to the dissent’s final criticism of the
majority opinion—that it does not agree with the dissent that
a rollover accident implicates the tribe’s self-government
interest. Dissenting opinion, p. 331. Although the tribe does
have an interest in protecting the lives of its police officers on
tribal roads, unfortunately that interest does not fit within the
parameters of the self-government Montana exception. That
exception has been narrowly defined as encompassing events
that interfere with a Tribe’s ability to enact or be governed by
its own laws. See Hicks, 533 U.S. at 360-61. Although tragic,
there is no indication in the record that the death of this tribal
police officer in a rollover accident in any way prevented the
Tribe from enacting or being governed by its laws. Evocation
of a sympathetic reaction cannot erase the Supreme Court’s
narrowing interpretation of the tribal government Montana
exception.
[11] In sum, we agree with the district court that neither of
the Montana exceptions applied in this case, and no tribal
jurisdiction existed.
B. Exhaustion
The tribal court was afforded the opportunity to make an
initial determination regarding the existence of tribal jurisdic-
FORD MOTOR CO. v. TODECHEENE 321
tion over this case. That is all the exhaustion that is required.
See Sharber v. Spirit Mountain Gaming, Inc., 343 F.3d 974,
975 (9th Cir. 2003) (per curiam). Consequently, there is no
need to remand the case to tribal court for purposes of exhaus-
tion.
IV. CONCLUSION
Under Montana v. United States, the tribal court’s limited
jurisdiction over nonmembers was in effect, because this case
did not fall within either the consensual relations or self-
government exceptions articulated in Montana. The matter
was sufficiently exhausted in federal court. Accordingly, the
judgment of the district court is
AFFIRMED.
W. FLETCHER, Circuit Judge, dissenting:
The question in this case is whether a tribal court has juris-
diction over a product liability suit brought by the surviving
parents of a tribal police officer, where the on-duty officer,
driving a police vehicle designed, manufactured, and sold to
the tribe by the defendant, was killed in a one-car rollover
accident on a tribal road. The majority denies tribal court
jurisdiction despite our recent decision in McDonald v.
Means, 309 F.3d 530, amending prior opinion at 300 F.3d
1037 (9th Cir. 2002), holding that tribal courts have subject
matter jurisdiction over a suit between a tribal member and a
nonmember arising out of an accident on a tribal road. The
majority may not like our decision in McDonald, but it is
bound by it. Because the majority fails to follow McDonald,
I respectfully dissent.
I. Factual Background
Plaintiffs are the parents of Esther Todecheene, a deceased
Navajo Nation law enforcement officer. Officer Todecheene
322 FORD MOTOR CO. v. TODECHEENE
died from injuries sustained when her Ford Expedition patrol
vehicle rolled over in a one-car accident. The rollover
occurred while Officer Todecheene was on duty, driving on
a tribal road.
The Navajo Nation had bought the Ford Expedition for use
as a police vehicle through one of the many bulk purchases
it had arranged with Ford Motor Credit Company, a wholly
owned subsidiary of defendant Ford Motor Company
(“Ford”). The Todecheenes sued Ford for damages in the
tribal court of the Navajo Nation, alleging that defects in the
design or manufacture of the Expedition caused the rollover.
Ford first sought to remove the Todecheenes’ suit to federal
court, but the district court remanded to the tribal court
because there is no statute permitting removal from tribal
courts to federal district court. See Nevada v. Hicks, 533 U.S.
353, 368-69 (2001). After remand, the Navajo Nation tribal
court held that it had jurisdiction.
Ford then brought suit in federal district court, contending
that the tribal court did not have jurisdiction. Without the ben-
efit of our amended opinion in McDonald, the district court
held that the tribal court lacked jurisdiction over the Tode-
cheenes’ suit. The district court preliminarily enjoined the
Todecheenes from pursuing their suit in tribal court. The
Todecheenes appeal that ruling to us.
II. Supreme Court Case Law
The Supreme Court has not answered the precise question
posed in this case. In Montana v. United States, 450 U.S. 544
(1981), the Court addressed the question whether a tribe could
regulate hunting and fishing by non-Indians on non-Indian
property located within the reservation. The Court held that a
tribe could not regulate the activities of non-Indians on non-
Indian fee lands except under two circumstances. First, “[a]
tribe may regulate, through taxation, licensing, or other
means, the activities of nonmembers who enter consensual
FORD MOTOR CO. v. TODECHEENE 323
relationships with the tribe or its members, through commer-
cial dealing, contracts, leases, or other arrangements.” Id. at
565. Second, “[a] tribe may also retain inherent power to
exercise civil authority over the conduct of non-Indians on fee
lands within its reservation when that conduct threatens or has
some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe.” Id. at 566. The
precise wording of the second exception is tailored to cases
involving conduct on non-Indian fee lands within the reserva-
tion. The exception does not purport to provide a rule for
cases involving conduct on tribal land.
In Strate v. A-1 Contractors, 520 U.S. 438 (1997), decided
sixteen years later, the Court imported Montana’s analysis of
a tribe’s regulatory reach into its analysis of a tribal court’s
subject matter jurisdiction and held that “[a]s to nonmembers,
. . . a tribe’s adjudicative jurisdiction does not exceed its legis-
lative jurisdiction.” Id. at 453. The Court in Strate held that
a tribal court had no jurisdiction over a suit brought by tribal
members against nonmembers arising out of an automobile
accident on a state highway within the reservation. In a case
arising on non-Indian land, the Court was careful to adhere to
its earlier formulation of the second exception in Montana. It
wrote:
Read in isolation, the Montana rule’s second
exception can be misperceived. Key to its proper
application, however, is the Court’s preface: “Indian
tribes retain their inherent power [to punish tribal
offenders,] to determine tribal membership, to regu-
late domestic relations among members, and to pre-
scribe rules of inheritance for members. . . . But [a
tribe’s inherent power does not reach] beyond what
is necessary to protect tribal self-government or to
control internal relations.” 450 U.S. at 564. 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
324 FORD MOTOR CO. v. TODECHEENE
and be ruled by them.” Williams [v. Lee, 358 U.S.
217, 220 (1957)]. The Montana rule, therefore, and
not its exceptions, applies to this case.
Id. at 459 (ellipses and all brackets except the last in original).
The Court in Strate was also careful to state that its holding
— and its narrow reading of Montana’s second exception —
were confined to a case in which the accident occurred on
non-Indian land. It wrote, “We express no view on the gov-
erning law or proper forum when an accident occurs on a
tribal road within a reservation.” Id. at 442.
Finally, in Nevada v. Hicks, decided four years after Strate,
the Court held that a tribal court did not have jurisdiction over
“civil claims against state officials who entered tribal land to
execute a search warrant against a tribe member suspected of
having violated state law outside the reservation.” 533 U.S. at
355. As in Strate, the Court was careful to note the limited
nature of its holding: “Our holding in this case is limited to
the question of tribal-court jurisdiction over state officers
enforcing state law. We leave open the question of tribal-court
jurisdiction over nonmember defendants in general.” Id. at
358 n.2. Although the Court in Hicks denied tribal jurisdiction
over a suit arising out of an incident on tribal land, it stated
explicitly that Indian land ownership remains a relevant factor
in the jurisdictional calculus. It wrote, “The ownership status
of land . . . is only one factor to consider in determining
whether regulation of the activities of nonmembers is ‘neces-
sary to protect tribal self-government or to control internal
relations.’ ” Id. at 360 (quoting Montana, 450 U.S. at 564).
Justice O’Connor wrote a separate concurrence in Hicks,
which the Court characterized as “in large part a dissent from
the views expressed in [the] opinion.” Id. at 370. Justice
O’Connor contended that the Court’s opinion in Hicks gave
short shrift to the tribe’s ownership of the land on which the
incident had taken place. In replying, the Court emphasized
FORD MOTOR CO. v. TODECHEENE 325
the importance of tribal land ownership in the jurisdictional
calculus. It wrote:
The principal point of [Justice O’Connor’s] concur-
rence is that our reasoning “gives only passing con-
sideration to the fact that the state officials’ activities
in this case occurred on land owned and controlled
by the Tribes.” According to Justice O’Connor, “that
factor is not prominent in the Court’s analysis.”
Even a cursory reading of our opinion demonstrates
that this is not so. To the contrary, we acknowledge
that tribal ownership is a factor in the Montana anal-
ysis, and a factor significant enough that it “may
sometimes be . . . dispositive.”
Id. at 370 (emphasis added; internal citations omitted; ellipsis
in original).
Justice Souter also wrote a separate concurrence in Hicks.
He wrote that he would reach the Court’s conclusion but “by
a different route.” Id. at 375. Justice Souter’s route deviated
from the Court’s in that he attached less importance to the
ownership status of the land. Unlike the Court, Justice Souter
said that he “would thus make it explicit that land status
within a reservation is not a primary jurisdictional fact, but is
relevant only insofar as it bears on the application of one of
Montana’s exceptions to a particular case.” Id. at 375-76. But
Justice Souter made clear that even in his view the status of
land remained relevant: “Thus, it is not that land status is
irrelevant to a proper Montana calculus, only that it is not
determinative in the first instance. Land status, for instance,
might well have an impact under one (or perhaps both) of the
Montana exceptions.” Id. at 382 n.4.
As is evident from the foregoing, the Supreme Court has
not answered the question whether a tribal court has jurisdic-
tion over a suit between a tribal member and a nonmember
arising out of an accident on a tribal road. Indeed, the forego-
326 FORD MOTOR CO. v. TODECHEENE
ing makes clear that the Court has specifically avoided
answering that question. But, at the very least, as the Court
indicated in its opinion in Hicks, tribal ownership of the land
on which an incident occurs is a “significant” factor that “may
sometimes be . . . dispositive.”
III. McDonald v. Means
In McDonald v. Means, decided in 2002, a year after the
Supreme Court’s decision in Hicks, we held that a tribal court
had jurisdiction over a suit between a tribal member and a
nonmember arising out of an accident on a tribal road. In so
holding, we answered the question that had been left open by
the Court. As the dissenting judge wrote in McDonald, we
were answering “a question of first impression.” 309 F.3d at
543 (Wallace, J., dissenting).
The facts in McDonald were straightforward. McDonald,
who was not a member of the Cheyenne Tribe, owned a horse
that had wandered onto a Bureau of Indian Affairs (“BIA”)
road within the Northern Cheyenne Indian Reservation.
Means, a member of the Cheyenne Tribe, was seriously
injured when his car struck the horse. Means’s guardian
brought suit in tribal court against McDonald and his family,
who objected to the court’s jurisdiction.
We carefully considered Hicks, as well as Montana and
Strate, and concluded that they did not answer the question
before us. We wrote:
McDonald argues that the majority’s analysis “is
not consistent with” the Supreme Court’s decision in
Nevada v. Hicks, that the ownership status of land is
not dispositive in determining that a tribal court
lacks jurisdiction over a civil claim against state offi-
cers who enter tribal land to execute a search warrant
against a tribe member suspected of having violated
state law outside the reservation. However, the Court
FORD MOTOR CO. v. TODECHEENE 327
noted that “[o]ur holding in this case is limited to the
question of tribal-court jurisdiction over state offi-
cers enforcing state law. We leave open the question
of tribal-court jurisdiction over nonmember defen-
dants in general.” The limited nature of Hicks’s
holding renders it inapplicable to the present case.
McDonald, 309 F.3d at 540 (citations omitted).
In a footnote, we explained in detail why we did not read
Hicks to bar jurisdiction in the tribal court:
McDonald argues that Hicks suggests the rule in
Montana should be extended to bar tribal jurisdiction
not only over the conduct of nonmembers on non-
Indian fee land but on tribal land as well. See
[Hicks,] 533 U.S. at 359 (interpreting Montana to
state a “ ‘general proposition [that] the inherent sov-
ereign powers of an Indian Tribe do not extend [to]
the activities of non-members of the tribe’ except to
the extent ‘necessary to protect tribal self-
government or to control internal relations’ ”). Mon-
tana itself limited its holding to nonmember conduct
on non-Indian fee land, 450 U.S. at 557, (“[T]he
power of the Tribe to regulate non-Indian fishing and
hunting on reservation land owned in fee by non-
members of the Tribe.”), and Strate [v. A-1 Contrac-
tors] confirmed that limitation, 520 U.S. [438,] 446
[(1997)] (“Montana thus described a general rule
that . . . Indian tribes lack civil authority over the
conduct of nonmembers on non-Indian land within a
reservation. . . .[”]). Even if Hicks could be inter-
preted as suggesting that the Montana rule is more
generally applicable than either Montana or Strate
have allowed, Hicks makes no claim that it modifies
or overrules Montana. . . . Montana limits its scope
to a Tribe’s civil authority over the conduct of non-
members on non-Indian fee land, and Strate affirms
328 FORD MOTOR CO. v. TODECHEENE
that limitation. Our holding therefore fits squarely
within Montana, which both Strate and Hicks char-
acterize as the “pathmarking case.” See Hicks, 533
U.S. at 358; Strate, 520 U.S. at 445.
Id. at 540 n.9 (parallel citations omitted).
We held that the BIA road was a tribal road, and that the
tribal court had jurisdiction over the suit between Means, who
was a tribal member, and McDonald and his family, who were
nonmembers:
We hold that the nature and the purpose of the
grant [of the road to the BIA], the continuing control
exercised by the Tribe over the road, and the
Supreme Court’s previous treatment of BIA roads
support the conclusion that the tribal court has juris-
diction to entertain Means’s suit against the McDon-
ald family.
Id. at 540. McDonald was explicitly based on the fundamental
principle contained in Supreme Court case law that “[t]ribes
maintain considerable authority over the conduct of both
tribal members and nonmembers on Indian land, or land held
in trust for a tribe by the United States.” Id. at 536.
IV. The Majority Opinion
The majority wants to ignore inconvenient aspects of the
Supreme Court cases on which it relies. The second exception
in Montana allows tribal court jurisdiction over suits involv-
ing conduct that “threatens” or “has some direct effect on the
political integrity, the economic security, or the health and
welfare of the tribe.” 450 U.S. at 566. The majority empha-
sizes the precise wording of the exception, and in particular
the precise wording of its stated purpose, as formulated in
Montana and later recited in Strate. Maj. Op. at 317. What the
majority does not emphasize is that the precise wording of the
FORD MOTOR CO. v. TODECHEENE 329
exception and its stated purpose were chosen and applied in
two suits involving conduct on non-Indian land. When, by
contrast, the Court addressed conduct on tribal land in Hicks,
it did not rely on that precise wording. Rather, it now referred
to the “general rule” of Montana. 533 U.S. at 360. It wrote
that under that general rule, “[t]he ownership status of land
. . . is only one factor to consider in determining whether reg-
ulation of the activities of nonmembers is ‘necessary to pro-
tect tribal self-government or to control internal relations.’ It
may sometimes be a dispositive factor.” Id.
In Hicks, the precise wording of Montana’s second excep-
tion became a general test based on the strength of the tribe’s
interest in self-government. The Court in Hicks held that the
tribe’s ownership of the land, and its accompanying interest
in self-government, did not outweigh the state’s interest in
executing its search warrant on tribal land. “We simply do not
find [the fact that the state officials’ activities in this case
occurred on land owned and controlled by the Tribe] disposi-
tive in the present case, when weighed against the State’s
interest in pursuing off-reservation violations of its laws.” Id.
at 370. But, at the same time, the Court “acknowledge[d] that
tribal ownership is a factor in the Montana analysis, and a fac-
tor significant enough that it ‘may sometimes be . . . disposi-
tive.’ ” Id.
The majority prefers the separate concurrences of Justices
Souter and O’Connor to the opinion of the Court in Hicks, for
they de-emphasize the importance of tribal ownership of land.
But these concurrences do not have the force of law. Justice
Souter himself acknowledged that his concurrence took a
“different route” from the opinion of the Court, id. at 375, and
the Court responded to Justice O’Connor’s separate concur-
rence by noting that it was “in large part a dissent.” Id. at 370.
After Hicks, the “general rule” of Montana applies to activ-
ities on both Indian and non-Indian land. On non-Indian land,
the precise wording of Montana’s second exception may or
330 FORD MOTOR CO. v. TODECHEENE
may not still apply. On tribal land, however, the precise word-
ing of the second exception has pretty clearly been replaced
by a “general rule” in which the strength of the tribe’s interest
in self-government is weighed against the interest of the
defendant who does not want to appear in tribal court. After
Hicks, a court should weigh — as the Hicks Court did — the
tribe’s ownership of the land and accompanying interest in
self-government, on the one hand, and the countervailing
interest of the nonmember defendant on the other.
The majority also wants to ignore our decision in McDon-
ald. It spends several pages analyzing the Supreme Court
cases, including Montana, Strate, and Hicks, that we held in
McDonald did not answer the jurisdictional question posed by
a suit arising out of an accident on a tribal road. Maj. Op. at
304-09. The majority then relies heavily on the district court’s
analysis in this case distinguishing McDonald, even though
the district court relied on our first, unamended opinion in
McDonald, which did not address Hicks. Id. at 13-15.
The majority distinguishes McDonald on the asserted
ground that in that case the tribe’s interest in self-government
was greater than in this case. It writes, “Central to McDon-
ald’s ruling was the fact that a non-member’s horse had wan-
dered onto the roads of the reservation, thereby impacting the
interest of the tribe in keeping its roadways free from obstruc-
tion. No similar circumstance existed in this case.” Maj. Op.
at 319. I agree that a tribe has an interest in the safety of travel
on its tribal roads. But a tribe’s interest in the safety of its
roads, including its interest in “keeping its roadways free from
obstruction,” cannot logically be limited to controlling stray
livestock. The tribe’s interest in the safety of its roads — and
keeping those roads “free from obstruction” — extends
equally to rollover accidents on those roads.
In its attempt to escape McDonald, the majority character-
izes this case as just “a product liability case.” It writes:
FORD MOTOR CO. v. TODECHEENE 331
We agree with the district court that the exercise
of tribal jurisdiction is a less compelling proposition
in a product liability case than in a case such as
McDonald, where the Tribe was protecting its inter-
est in having its roads free from trespass by neigh-
boring livestock. If the mere occurrence of an
accident on the reservation is sufficient to warrant
the assertion of jurisdiction, tribal jurisdiction over
nonmembers will become the rule.
Maj. Op. at 312 (emphasis added). But this is not just a prod-
uct liability case. It is, instead, a case in which the defendant
allegedly designed and manufactured a fatally defective vehi-
cle; the defendant sold that vehicle to the tribe for use by its
police officers; and the vehicle rolled over and killed one of
the tribe’s police officers. Not only is this a case about the
safety of the tribe’s roads. Not only is this a case about the
safety of products sold to tribal members. This is also a case
about the ability of a tribe to ensure the safety of its police
officers as those officers drive on tribal roads, protecting
tribal members and enforcing tribal law.
Under the weighing process prescribed in Hicks, we must
weigh the self-government interest of the tribe in ensuring the
safety of its roads and the safety of tribal police officers while
driving on those roads against the interest of the defendant in
escaping the tribal court’s civil jurisdiction. The majority con-
cludes that the tribe’s interest in self-government is greater in
a case arising out of an accident involving a stray horse than
in a case arising out of the death of a tribal police officer
caused by an allegedly defective vehicle. I agree with the
majority that the tribe has a self-government interest in keep-
ing its tribal roads free of obstruction, as we held in McDon-
ald. I do not understand why the majority does not agree with
me that the tribe has an even greater self-government interest
in protecting the lives of its police officers on those roads.
I respectfully dissent.