The Crownpoint District Court of the Navajo Nation rules that a bar located on fee land within the Checkerboard Area of New Mexico may be sued under the Navajo Nation Dram Shop Act for selling alcohol to a driver who allegedly caused an alcohol-induced auto wreck, because the complaint alleged that the defendant bar "caused an action to occur" within Navajo Indian Country under the Navajo Nation's civil jurisdiction statute.
JUDICIAL DISTRICT OF CROWNPOINT, NAVAJO NATION (NEW MEXICO)
GUY BENALLY, et al.,
Plaintiffs, No. CP-CV-534-99
DAIRYLAND INSURANCE COMPANY, et al.,
OPINION AND ORDER
This is a personal injury action where defendants David A. South and the Tomahawk Bar move the court to dismiss the complaint against them on the ground that the court lacks personal jurisdiction over them. The motion falls under Rule 12(b)(2) of the Navajo Rules of Civil Procedure ("lack of jurisdiction over the person"), and all well-pleaded allegations of the complaint are deemed to be true for purposes of the motion. The court accepts the affidavit of David A. South as to the location of the Tomahawk Bar, and the ownership status of the land where the bar is located, at Prewitt, New Mexico.
This case arises out of an incident that took place on December 22, 1997 at approximately 2:00 a.m. Brian Joe, a Navajo, was driving a vehicle owned by Robert R. Joe and Lillian Hicks, who are Navajos from Shonto, Navajo Nation (Arizona). The passengers in the vehicle were plaintiffs Gerald Benally, Dustin Perry, and Russell Saunders, all of whom are Navajos and residents of Crownpoint, within the New Mexico portion of the Navajo Nation. Amended Complaint, Pars. 15, 2-4. Joe was driving westbound on Bureau of Indian Affairs Route 48 at speeds in excess of 70 miles an hour, and as the vehicle approached (State) Route 371 near Crownpoint, Joe lost control of the vehicle, causing it to run off the road and roll several times. The complaint alleges that the situs of the incident is within Navajo Indian Country, as that term is defined in 7 NNC Sec. 254 (1995).
Tomahawk Bar and David A. South are defendants in this case because the plaintiffs allege that Brian Joe, the driver of the vehicle, was intoxicated at the time of the event, and that he bought the beer or malt liquor which caused his intoxication from the Tomahawk Bar earlier in the evening. Amended Complaint at Par. 15. The bar, which sells alcoholic beverages to the public, is located at Prewitt, New Mexico, and David A. South owns the property where the bar is situated and its liquor license. Id., at Par. 11. Mr. South states, in his affidavit, that the Tomahawk Bar is located on private fee land at Prewitt, New Mexico, and the land is outside the exterior boundaries of the Navajo Nation.(1) Mr. South says that the bar does not conduct business within the Navajo Nation. He also says the bar is not on an Indian allotment, land set aside by the Federal Government for the use of Indians as Indian land, and that the land is not under federal superintendence.
Upon those facts, the issue before the court is whether this court has jurisdiction over an individual and his business(2) where a motor vehicle crash related to the intoxication of the driver took place within the Navajo Nation, but the alcohol sale took place on fee lands.
The Navajo Nation statutes which apply to the motion to dismiss and this court's decision are 7 NNC Sec. 253(B) (1995) and 7 NNC Sec. 207. This court has civil jurisdiction over all causes of action where a defendant "has caused an action to occur within the territorial jurisdiction of the Navajo Nation." 7 NNC Sec. 253(B). The Navajo Nation has a dram shop act which provides, at 7 NNC Sec. 207(A), that:
Any person who has been injured or damaged by an intoxicated person, or as a consequence of the intoxication of any person, may maintain an action in the Courts of the Navajo Nation against any person, individual, partnership, association or corporation selling or furnishing liquor or intoxicating beverages for consumption within the Navajo Indian Country if such liquor or intoxicating beverage was a cause of the intoxication.
The possession and sale of alcohol within the Navajo Nation is illegal. Accordingly, this statute is designed to reach individuals who sell alcohol within the Navajo Nation for consumption there, where the purchaser injures or damages another as the result of intoxication. The statute also, by its plain words, reaches those who sell alcohol to individuals at any place for consumption within the Navajo Nation, where intoxication is a cause of an injury or damage. This court has jurisdiction over individuals outside Navajo Indian Country who cause an action to occur within the Navajo Nation. In this instance, that action is the sale of alcohol beverages "for consumption within Navajo Indian Country." That sale may take place either within or without the Navajo Nation.
Mr. South and Tomahawk Bar urge the court to apply the principles of Alaska v. Native Village of Venetie Tribal Government, 118 Sup. Ct. 948, 148 L.Ed.2d 30 (1988), as the law which controls this court's ruling on the motion. That decision defines the term "dependent Indian community," but there appears to be no dispute that the Tomahawk Bar is located on fee land and does not fall within that definition. Venetie, read alone, does not answer the issue posed here, namely whether an act that takes place on non-Indian fee land, but is related to an injury in "Indian country," can confer jurisdiction upon this court.
Our jurisdiction statute, as it is with many similar state statutes, provides for jurisdiction where an act or omission in one state causes injury in another. See, Robert C. Casad, Jurisdiction in Civil Actions Par. 4.02[d][ii] (1983). Dram shop cases fall under the same principle. Where a saloon or tavern which is located in one state near the border of a forum state negligently allows a patron to become intoxicated, and the patron drives into the forum state and injures a plaintiff, the nonresident tavern is subject to the jurisdiction of the forum state. See, Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985); Blamey v. Brown, 270 N.W.2d 884 (Minn. 1978), cert. den., 444 U.S. 1070 (1980); Anderson v. Luitjens, 311 Minn. 203, 247 N.W.2d 913 (1976); Hart v. McCollum, 249 Pa. Super. 267, 376 A.3d 644 (1977); Young v. Gilbert, 121 N.J. Super. 78, 296 A.2d 87 (1972). While Minnesota retreated from its earlier position on dram shop long-arm jurisdiction (above) in West Am. Ins. Co.v. Westin. Inc., 337 N.W.2d 676 (1983), where the out-of-state tavern actively solicited clientele from the forum state (Minnesota), the Minnesota courts had jurisdiction. B.L.C. Ins. Co. v. Westin, Inc., 359 N.W.2d 752 (Minn. App. 1985); see also, Wimmer v. Koenigseder, 128 Ill. App.3d 157, 470 N.E.2d 326 (1984).
Applying those decisions to both our general civil jurisdiction statute and the Navajo Nation Dram Shop Act, it is clear that if the elements of 7 NNC Sec. 207(A) are satisfied, then this court has jurisdiction because the defendants "caused an action to occur" within the Navajo Nation for purposes of 7 NNC Sec. 253(B).
The defendants may still object that under jurisdictional rulings which are peculiar to Indian nation courts, the act must have occurred "within" or "on" Indian Country for purposes of jurisdiction. The court is not persuaded by such an argument because of a recent ruling of the Ninth Circuit Court of Appeals in a situation involving both on- and off-reservation activities.
The case of Allstate Indemnity Company v. Stump, No. 9735822v2 (9th Cir. August 19, 1999, amended September 13, 1999), involved an auto crash which took place on "tribal land" within the Rocky Boy's Reservation in Montana. The estates of deceased members of the Chippewa Cree Tribe brought suit against Allstate in the Chippewa Cree court, claiming that Allstate violated the Montana Unfair Claims Settlement Practices Act by refusing to pay claims for the on-reservation occurrence.
As the defendants essentially say in their motion to dismiss and supporting documents, "Analysis of Indian jurisdiction over cases involving non-Indians(3) generally turns on whether the tribe controls the land on which the dispute arose." Id. at Par. . Despite that, Indian nation courts, as it is with state courts, may exercise jurisdiction over a foreign defendant where the accident took place within the forum jurisdiction. Id. at Par  (citing a case where a Montana state court exercised jurisdiction over a Canadian insurer that sold an insurance policy covering travel in Montana). While the Ninth Circuit did not make a ruling on jurisdiction in the Stump case, it ruled that jurisdiction in that case was " colorable," and remanded the case to the Chippewa Cree court for a determination of its own jurisdiction. Id. at Par. .
The parties do not dispute that the underlying tort action arose within the Navajo Nation. The precise jurisdictional question presented for this court to decide is whether, under the Navajo Nation Dram Shop Act and our civil jurisdiction statute, the defendant is amenable to this court's jurisdiction for an act which occurred on fee lands when the sale had a nexus with injuries which occurred within the Navajo Nation. This court answers that question in the affirmative and holds that if the facts proved at trial satisfy the elements of 7 NNC Sec. 207(A), this court has personal jurisdiction over defendants David A. South and Tomahawk bar to render a judgment.
For those reasons, the motion to dismiss is hereby DENIED.
Done and dated this 28th day of October, 1999
Loretta A Morris, District Judge
1. The land is in fact in the Checkerboard Area of the New Mexico portion of the Navajo Nation. Looking at an official map of the Navajo Nation, it can be said that the land is within the "exterior boundaries" of the Navajo Nation. However, it is fee land.
2. The record does not indicate whether either the bar or Mr. South are "non-Indians" for purposes of jurisdiction.
3. Mr. South, in his August 3, 1999 affidavit, does not tell us the "ethnicity" of either the bar or himself.
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