Ford Motor Company v. Todecheene , 488 F.3d 1215 ( 2007 )

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.
Todecheene, deceased, CV-02-01100-PGR
Defendants-Appellants,
and
NAVAJO NATION DISTRICT COURT;
LEROY S. BEDONIE, The Honorable,
Defendants.

6669
6670 FORD MOTOR CO. v. TODECHEENE
FORD MOTOR COMPANY, 
Plaintiff-Appellee,
v.
JOE R. TODECHEENE, as the
surviving natural parent of Esther No. 02-17165
Todecheene, deceased; MARY
D.C. No.
TODECHEENE, as the surviving
natural parent of Esther  CV-02-01100-PGR
Todecheene, deceased, AMENDED
Defendants, ORDER
and
NAVAJO NATION DISTRICT COURT;
LEROY S. BEDONIE, The Honorable,
Defendants-Appellants.

Filed June 4, 2007
Before: Barry G. Silverman, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
ORDER
The order filed February 1, 2007, is hereby amended. The
entire text shall be replaced with the following text.
Joe and Mary Todecheene’s Petition for Rehearing is
GRANTED in part.
The opinion in this case, Ford Motor Company v. Todech-
eene, 394 F.3d 1170 (9th Cir. 2005) is WITHDRAWN.
The tribal court did not “plainly” lack jurisdiction under the
second exception, recognized in Montana v. United States,
FORD MOTOR CO. v. TODECHEENE 6671
450 U.S. 544, 565 (1981), to the general rule that tribes do not
have jurisdiction over non-members. See Boozer v. Wilder,
381 F.3d 931, 935 (9th Cir. 2004) (requiring exhaustion
unless the tribal courts plainly lack jurisdiction). As such, the
appeal is stayed until Ford exhausts its appeals in the tribal
courts. The panel retains jurisdiction over the appeal. Ford
will be deemed to have exhausted its tribal remedies once the
Navajo Nation Supreme Court either resolves the jurisdic-
tional issue or denies a petition for discretionary interlocutory
review pursuant to Navajo Nation Code tit. 7, § 303 (“The
Supreme Court [of the Navajo Nation] shall have the power
to issue any writs or orders . . . [t]o prevent or remedy any act
of any Court which is beyond such Court’s jurisdiction.”).
The parties shall notify this court no later than 15 days from
the date the Navajo Nation Supreme Court either denies a
petition for discretionary review, or, if the Navajo Nation
Supreme Court grants such a petition, the issuance of its opin-
ion resolving the jurisdictional question.
The petitions for rehearing en banc filed by Joe and Mary
Todecheene and the Navajo Nation are DENIED as moot,
and the petitions for rehearing and rehearing en banc filed by
Ford Motor Company are DENIED.
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