309 F.3d 1216 (10th Cir. 2002), 01-4001, MacArthur v. San Juan County

Docket Nº:01-4001.
Citation:309 F.3d 1216
Party Name:Dr. Steven MacARTHUR; Dr. Nathaniel Penn; Michelle Lyman; Helen Valdez; Candace Laws; Paul Keith; Dorothy Keith; Linda Cacapardo; Sue Burton; Amy Terlaak; Alison Dickson; Candace Holiday; Nicole Roberts; Donna Singer; Fred Riggs, Plaintiffs-Appellants, v. SAN JUAN COUNTY; San Juan Health Services District; J. Tyron Lewis, Commissioner; Bill Redd, C
Case Date:October 07, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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309 F.3d 1216 (10th Cir. 2002)

Dr. Steven MacARTHUR; Dr. Nathaniel Penn; Michelle Lyman; Helen Valdez; Candace Laws; Paul Keith; Dorothy Keith; Linda Cacapardo; Sue Burton; Amy Terlaak; Alison Dickson; Candace Holiday; Nicole Roberts; Donna Singer; Fred Riggs, Plaintiffs-Appellants,


SAN JUAN COUNTY; San Juan Health Services District; J. Tyron Lewis, Commissioner; Bill Redd, Commissioner; Craig Halls; Mark Maryboy, Commissioner, official capacity only; Reid M. Wood; Cleal Bradford; Roger Atcitty; John Lewis; John Housekeeper; Karen Adams; Patsy Shumway; Dr. James D. Redd; Dr. L. Val Jones; Dr. Manfred R. Nelson; Richard Bailey; San Juan Foundation; Marilee Bailey; Ora Lee Black; Gary Holladay; Lori Wallace, also known as Laurie Walker; Farmer's/Truck Insurance; St. Paul's Insurance; Carla Grimshaw; Gloria Yanito; Julie Bronson; R. Dennis Ickes; Laurie Schafer, Defendants-Appellees.

No. 01-4001.

United States Court of Appeals, Tenth Circuit

October 7, 2002

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Susan Rose of Sandy, UT, for the Plaintiffs-Appellants.

Carolyn Cox (Blaine J. Benard with her on the brief) of Holme Roberts & Owen L.L.P., Salt Lake City, UT, for Defendants-Appellees San Juan Health Services District, Reid Wood, Roger Atcitty, John Lewis, John Housekeeper, Karen Adams, Patsy Shumway, Gary Holliday, and Lauren Schafer.

Jesse C. Trentadue of Suitter Axland, Salt Lake City, UT, for Defendants-Appellees San Juan County, J. Tyron Lewis, Mark Maryboy, Bill Redd, Craig Halls, and Richard Bailey.

Kyle M. Finch of Miller, Stratvert & Torgerson, P.A., Farmington, New Mexico, submitted a brief for Defendant-Appellee Farmer's/Truck Insurance.

Robert R. Harrison and David W. Slagle, of Snow, Christensen & Martineau, Salt Lake City, UT, submitted a brief for Defendants-Appellees Cleal Bradford, Dr. James Redd, Dr. L. Val Jones, Dr. Manfred Nelson, Marilee Bailey, Ora Lee Black, Lori Wallace, Carla Grimshaw, Gloria Yanito, and Julie Bronson.

R. Dennis Ickes, pro se.

Before EBEL, McKAY, and LUCERO, Circuit Judges.

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LUCERO, Circuit Judge.

Key to our determination of this appeal is the question whether the courts of the Navajo Nation may exercise jurisdiction over a case brought by private individuals against a Utah county alleging violations of Navajo law. Contrary to the district court's ruling, we conclude that resolution of this question lies in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (defining the scope of tribes' inherent sovereignty), rather than in the doctrine of state sovereign immunity.


The parties bring to us a procedural quagmire marked by a profound lack of clarity—at times approaching confusion—in their litigation before the Navajo Nation district court and their pleadings before the federal district court below. That pattern continues here.

Rather than including a complete statement of relevant facts as required by Fed.R.App. P. 28, appellants' opening brief incorporates facts as stated in a Navajo Nation judicial record. Appellants fail to comply with Fed. R.App. P. 30(a)(1)(B), which requires the filing of an appendix to the briefs including "relevant portions of the pleadings." This being an appeal from a Fed.R.Civ.P. 12(b)(6) dismissal for the complaint's failure to state a claim upon which relief may be granted, Rule 30(a)(1)(B) requires, at a minimum, inclusion in the appendix of the complaint at issue. See 10th Cir. R. 30.1(A)(1) (stating that the appendix to the briefs must be "sufficient for considering and deciding the issues on appeal"). Were it not for appellees' submission of the complaint, we would be inclined to affirm the district court's dismissal on this basis alone. See 10th Cir. R. 30.1(A)(3) (stating that this court is not obliged to "remedy any failure of counsel to provide an adequate appendix").

As best as we can tell, the facts are as follows.


Montezuma Creek Clinic is located within the boundaries of the Navajo Nation and was, during relevant times, operated by the San Juan Health Service District ("Health District")—a special service district organized by San Juan County, Utah ("County")—under contract with the federal Indian Health Service ("IHS") to provide health care to members of the Navajo community. The clinic and land upon which it is located was purchased by the State of Utah as part of the Utah Navajo Trust Fund.

In April 1999, Fred Riggs, Donna Singer, and Alison Dickson, all of whom were employed at the clinic, sued the Health District and County, among others,1 in Navajo Nation district court for, among other things, alleged violations of the Navajo Preference in Employment Act ("NPEA"), Nation Code tit. 15, §§ 601-609.2 The

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NPEA, which was enacted by the Navajo Nation, requires employers to "[g]ive preference in employment to Navajos," id. § 604(A)(1), and to file with the Office of Navajo Labor Relations a written affirmative-action plan, § 604(A)(2).

In pretrial proceedings, the Navajo court concluded that Riggs, Singer, and Dickson demonstrated a substantial likelihood of success on the merits of their NPEA claims and entered a preliminary injunction in their favor. The Navajo court was troubled by what it perceived as a sharp drop in visits to the clinic by diabetic patients. In the court's view, "The reason these patients have not been coming in for life critical medical care is due to San Juan Health Service District's billing of IHS eligible patients, making them believe they must pay for medical services before receiving medical attention." (1 Appellants' App. at 77.) Under the preliminary injunction, the County and Health District were required to reinstate Singer and Riggs to their prior positions at the clinic; to give Dickson full-time employment status; to compensate Singer, Riggs, and Dickson for their lost income; to expunge Singer's and Riggs's personnel files; and to pay attorney's fees. Moreover, the Navajo court prohibited the County and Health District from:

Eliminating Emergency Medical Technician services and coverage within the territorial jurisdiction of the Navajo Nation in service to the local Navajo and other Native American population for or on behalf of the Montezuma Creek Clinic; and, Interfering with the laboratory services to the Montezuma Creek Clinic; and, Interfering with the pharmaceutical services provided to the Montezuma Creek Clinic, and immediate payment of all current and past due billings; and, Interfering with any form of patient care, by, among any other matter or things, billing IHS patients; and Interfering or harassing Ms. Singer as the manager of the Montezuma Creek Clinic. . . .

(1 id. at 85-86.)3

In its order granting a preliminary injunction, the Navajo court found that the defendants had engaged in a pattern of bad faith conduct toward the court, had wasted judicial resources, had engaged in "repeated misrepresentations of fact and law," had engaged in evidence spoliation, had intimidated and tampered with witnesses, had obstructed testimony, and had engaged in the sandbagging of evidence. (1 id. at 80.) In the Navajo court's view, the defendants had made frivolous claims against Navajo plaintiffs and subjected them "to a trial by tabloid." (1 id. at 81.) Seizing on these conclusions, Riggs, Singer, and Dickson modified their complaint to add as defendants the clinic's insurer, Truck Insurance Exchange ("Truck Insurance"), and its attorney, R. Dennis Ickes. On May 3, 2000, the Navajo court took the extraordinary step of holding that Truck Insurance and Ickes should be bound by

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the preliminary injunction. The court also granted Riggs, Singer, and Dickson leave to seek enforcement of the preliminary injunction in state or federal court "pursuant to principles of comity and applicable law." (1 id. at 106.)


Riggs, Singer, Dickson, and twelve other individuals filed a complaint in United States district court against (1) the County, Health District, and a number of County and Health District officials ("County and Health District defendants"); (2) Truck Insurance; and (3) Ickes. The complaint listed various causes of action: discrimination and denial of equal protection; denial of free speech and association; denial of due process; antitrust and racketeering violations; fraud, conversion, and theft; and invasion of privacy and defamation. Their complaint also sought enforcement of the Navajo court preliminary injunction and "a declaratory judgment that the Preliminary Injunction Order designed to protect the welfare of the Navajo Nation was issued within the sound jurisdiction of the Navajo Nation District Court and is authoritative over the defendants and the political subdivision" (Health District's Supplemental App. ("H.D.App.") at 46). The complaint asserted: "Pursuant to Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661, (1997)[the] Navajo Nation District Court . . . has the right to protect the Navajo Patients' health and welfare, contractual rights of the Navajo people, and the civil rights of all those who are within the Navajo Nation boundaries and seek [the] Court's assistance." (H.D.App. at 48.)

Ruling on a motion to dismiss, the district court held that County and Health District defendants were entitled to sovereign immunity in the Navajo court. Reasoned the district court:

[T]ribal courts historically did not possess and therefore have not retained sovereign powers over states. Therefore, absent a state's express waiver of immunity, a state cannot be sued in tribal court. . . . Consequently, political subdivisions of the State of Utah, as defined by Utah law, are immune from suit in tribal courts because the State of Utah has not waived the common law immunity of its political subdivisions from...

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