Here are the materials in Frito-Lay v. Stover (D. Ariz.):
DCT Decision in Frito-Lay v Stover
Frito-Lay Motion for Summary J
Stover Opposition to Frito-Lay Motio
Stover Motion to Dismiss
Tribal Motion to Dismiss
The outcome of this case is predictable in the post-Montana/Strate world (non-Indian P sues non-Indian D in tribal court–we have been here before, and facts are not nearly as sympathetic as Strate), but the reasoning is unnecessarily anti-tribal sovereignty. Judge Martone has an agenda, clear from the fact that the only scholarly commentary he cites is his own 1979 Notre Dame Law Review article, and his selective use of quotes from Oliphant and other cases. I noticed that his practice background, before he became a state court judge, included “federal Indian law.” Presumably, his clients were not tribes. Anyone know? Just curious.
I have told by other attorneys here at Navajo DOJ that Judge Martone represented Salt River Project before becoming a judge. SRP is a partial owner of the Navajo Generating Station, and there have been issues between the Navajo Nation and SRP over the years that he may have been involved in.
Now that the state court action against the non-Indian defendant was dismissed for failure to prosecute and the non-Indian defendant is dismissed from the tribal court suit for want of jurisdiction, only the Indian defendants remain.
If the Indian defendants are found liable for negligence, will they be able to seek contribution or indemnification from the non-Indian party? Will they have to institute a separate action in state court to get it? Would the dismissal of the non-Indian defendants from the original state court action affect the Indian defendant’s right to contribution?
This is a textbook illustration of the troubles which can arise where no court has jurisdiction over all of the parties to a simple tort case. I am sure the plaintiff did not anticipate having to proceed against only one class of defendants (here, by chance, the Indian parties), and it is not fair to any of the defendants to lose the opportunity to litigate the right of contribution in the same action as the underlying claims.
A follow-up to my reply. A search of published federal cases shows Judge Martone in the early to mid 80s represented several non-Indian interests in 9th Circuit and Supreme Court litigation concerning Indian water rights and jurisdiction over non-Indians, including filing an amicus brief for SRP against the Navajo Nation in the Kerr-McGee case. That’s the case where the Supreme Court held that the Navajo Nation could tax without the need for the approval of the Secretary of the Interior.
Thanks Paul. That makes sense. Judge M is still arguing that he was right in his amicus brief! Except now that he’s a judge, his losing arguments are the law. Sigh.
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