MacArthur v. San Juan County (405 F. Supp. 2d 1302, 2005)

MEMORANDUM OPINION & ORDER RE: PLAINTIFFS’ MOTIONS FOR RECONSIDERATION (Fed.R.Civ.P. 59(e)/60(b)), AND OTHER MATTERS

JENKINS, Senior District Judge.

This court entered its final Declaratory Judgment (28 U.S.C.A. § 2201(a)) & Judgment & Order of Dismissal in the above-captioned action on October 31, 2005 (dkt. no. 848) (“October 31st Judgment”). On November 7, 2005, plaintiffs Singer, Riggs and Dickson filed a Motion for Clarification, Reconsideration and Amendment of that judgment (dkt. no. 849), with a supporting memorandum (dkt. no. 850). On November 10, 2005, plaintiff Valdez filed a “Motion to Reconsider and Amend the October 31, 2005 Order and Allow Her to Amend Her Amended Complaint,” (dkt. no. 855), with a supporting memorandum (dkt. no. 856); plaintiffs Lyman and MacArthur also filed a “Motion to Reconsider and Amend the October 31, 2005 Order and Allow Her to Amend Their Amended Complaint,” (dkt. no. 857), with a supporting memorandum (dkt. no. 858).

The defendants filed a series of responsive memoranda, and plaintiffs Singer, Riggs and Dickson filed three reply memo-randa. The motions were calendared for hearing on November 30, 2005. At the November 30th hearing, Susan Rose, Esq. appeared on behalf of the plaintiffs; Carolyn Cox, Esq. and Robert R. Harrison, Esq. appeared on behalf of the San Juan Health Services District defendants; and Jesse Trentadue, Esq. appeared on behalf of the San Juan County defendants. The court heard the arguments of counsel, and having reviewed and considered the memo-randa submitted by the parties as well as this court’s prior opinions and orders, ruled on the plaintiffs’ motions, denying them in each instance. (See Minute Entry, dated November 30, 2005 (dkt. no. 871).)

For the sake of clarity of the record in this matter, the court has elected to elaborate upon the reasons for its rulings on the plaintiffs’ three Rule 59(e)/Rule 60 motions as well as setting forth in writing the court’s rulings on prior motions heard on October 25, 2005.

A. Applicable Standards under Fed. R.Civ.P. 59(e) & 60(b)

According to the court of appeals, “The Federal Rules of Civil Procedure provide that a post-judgment motion may ‘aris[e] under either Rule 59(e) (motion to alter or amend the judgment) or Rule 60(b) (relief from judgment for mistake or other reason). The[se] two rules serve different purposes and produce different consequences, both substantive and procedural.’ Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir.1988) (citation and footnote omitted).” Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir.2005).

In this case, plaintiffs’ counsel has asserted both Rule 59(e) and Rule 60(b) as bases for plaintiffs’ three motions for reconsideration, filed within ten days of the entry of the court’s October 31st Judgment. Counsel points to Rule 60(a) as well.

Generally, Rule 59(e) motions “should be granted only to correct manifest errors of law or to present newly discovered evidence.” Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186 n. 5 (10th Cir.2000); Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997) (same); see also Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir.1995) (noting that the requirements for motions for reconsideration are “an intervening change in the controlling law, the availability of new evidence, or the need to correct clear error or prevent manifest injustice”).

Motions for “reconsideration” will not be granted absent “highly unusual circumstances” — they do not provide litigants with an opportunity for a “second bite at the apple” or allow them, like Emperor Nero, to “fiddle as Rome burns”, or license a litigation “game of hopscotch”, allowing parties to switch from one legal theory to a new one “like a bee in search of honey”. Such motions are not vehicles for relitigating old issues. Courts properly decline to consider new arguments or new evidence on reconsideration where those arguments or evidence were available earlier.

Steven Baicker-McKee, William M. Jans-sen & John B. Corr, Federal Civil Rules Handbook 962 (2006 ed.) (footnotes omitted).

Rule 60(b)(1) provides that

“[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment .... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect....” It “is an extraordinary procedure” which “ ‘seeks to strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the incessant command of the court’s conscience that justice be done in light of all the facts.’” Cessna Fin. Corp., 715 F.2d at 1444 (quoting Seven Elves, Inc. v. Eskenazi, 685 F.2d 396, 401 (5th Cir.1981) (additional internal quotation marks omitted)). The rule “should be liberally construed when substantial justice will thus be served.” Id.

“The guidelines governing a district court’s consideration of a Rule 60(b)(1) motion ... are well established.” Id. at 1445. Whether the movant has demonstrated “mistake, inadvertence, surprise, or excusable neglect” is an issue to be “litigated on the merits.” Id. “The trial court must determine whether excusable neglect has in fact been established, resolving all doubts in favor of the party seeking relief.” Id.

Jennings v. Rivers, 394 F.3d 850, 855-856 (10th Cir.2005); see also Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir.1999) (“Rule 60(b)(1) motions premised upon mistake are intended to provide relief to a party in only two instances: (1) when the party has made an excusable litigation mistake or an attorney in the litigation has acted without authority; or (2) when the judge has made a substantive mistake of law or fact in the final judgment or order. See Cashner, 98 F.3d at 576 (citing 7 James Wm. Moore et. al., Moore’s Federal Practice ¶60.22[2] (2d ed.1985)). ...

[T]he kinds of mistakes remediable under a Rule 60(b)(1) motion are litigation mistakes that a party could not have protected against...”); Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir.1996) (“If the mistake alleged is a party’s litigation mistake, we have declined to grant relief under Rule 60(b)(1) when the mistake was the result of a deliberate and counseled decision by the party.”). Relief is available under Rule 60(b)(1) “only for obvious errors of law, apparent on the record. Al-vestad v. Monsanto Co., 671 F.2d 908, 912-13 (5th Cir.) (relief under Rule 60(b)(1) limited to ‘perfunctory correction’ of obvious errors of law), cert. denied, 459 U.S. 1070, 103 S.Ct. 489, 74 L.Ed.2d 632 (1982); see also Rocky Mountain Tool & Mach. Co. v. Tecon Corp., 371 F.2d 589, 596-97 (10th Cir.1966) (‘palpably erroneous award’ of interest from date of filing counterclaim rather than from date of entry of judgment correctable under Rule 60(b)(1)).” Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir.1991).

Rule 60(b)(4) provides for relief where “the judgment is void”:

A judgment is void for Rule 60(b)(4) purposes if the “rendering court was powerless to enter it.” V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir. 1979). A judgment may in some instances be void for lack of subject matter jurisdiction. E.g. id.; In re Four Seasons Securities Laws Litigation, 502 F.2d 834, 842 (10th Cir.1974). “However, this occurs only where there is a plain usurpation of power, when a court wrongfully extends its jurisdiction beyond the scope of its authority.” Kansas City Southern Ry. Co. v. Great Lakes Carbon Corp., 624 F.2d 822, 825 (8th Cir.1980) (citations omitted); accord Nemaizer v. Baker, 793 F.2d 58, 65 (2d Cir.1986) (observing that collateral attack is permitted under Rule 60(b)(4) where there is “a clear usurpation of power by a district court, and not an error of law in determining whether it has jurisdiction”) (citations omitted).

A court does not usurp its power when it erroneously exercises jurisdiction. Kansas City Southern, 624 F.2d at 825. “Since federal courts have ‘jurisdiction to determine jurisdiction,’ that is, ‘power to interpret the language of the jurisdictional instrument and its application to an issue by the court,’ error in interpreting a statutory grant of jurisdiction is not equivalent to acting with total want of jurisdiction.” Id. (quoting Stoll v. Gottlieb, 305 U.S. 165, 171, 59 S.Ct. 134, 83 L.Ed. 104 (1938)); see also Lubben v. Selective Serv. Sys. Local Board No. 27, 453 F.2d 645, 649 (1st Cir.1972) (“While absence of subject matter jurisdiction may make a judgment void, such total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction.”) (footnote omitted). There must be “no arguable basis on which [the court] could have rested a finding that it had jurisdiction.” Nemaizer, 793 F.2d at 65.

Gschwind v. Cessna Aircraft Co., 232 F.3d 1342, 1346 (10th Cir.2000), cert. denied, 533 U.S. 915, 121 S.Ct. 2520, 150 L.Ed.2d 693 (2001); see also Annotation, Lack of Jurisdiction, or Jurisdictional Error, as Rendering Federal District Court Judgment “Void” for Purposes of Relief under Rule 60(b)(4) of Federal Rules of Civil Procedure, 1982 WL 198986, 59 A.L.R. Fed. 831 (1982).

Rule 60(b)(6) “permits the district court to reverse its order for ‘any other reason justifying relief from the operation of the judgment,’ ” Searles v. Dechant, 393 F.3d 1126, 1131 (10th Cir.2004), “other than the more specific circumstances set out in Rules 60(b)(l)-(5).” Gonzalez v. Crosby, — U.S. -, 125 S.Ct. 2641, 2646, 162 L.Ed.2d 480 (2005) (citing Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863, n. 11, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988); Klapprott v. United States, 335 U.S. 601, 613, 336 U.S. 942, 69 S.Ct. 384, 93 L.Ed. 266 (1949) (opinion of Black, J.)).

According to the court of appeals:

We have described Rule 60(b)(6) as a “grand reservoir of equitable power to do justice in a particular case.” Pierce v. Cook & Co., 518 F.2d 720 (10th Cir. 1975) (en banc) (citation omitted), cert. denied, 423 U.S. 1079, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976). In Pierce, we were confronted with “[t]he kind of legal error that provides the extraordinary circumstances justifying relief under rule 60(b)(6).” Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir.1991), cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992). We granted Rule 60(b)(6) relief in Pierce based on a post-judgment change in the law “arising out of the same accident as that in which the plaintiffs ... were injured.” 518 F.2d at 723. Absent a post-judgment change in the law in a factually-related case, however, “we have held that ‘a change in the law or in the judicial view of an established rule of law1 does not justify relief under Rule 60(b)(6).” Van Skiver, 952 F.2d at 1245 (quoting Collins v. City of Wichita, 254 F.2d 837, 839 (10th Cir. 1958)).

Johnston v. Cigna Corp., 14 F.3d 486, 497 (10th Cir.1993) (footnote omitted). “Relief under Rule 60(b)(6) is discretionary and is warranted only in exceptional circum-stances____” Id. (citing Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1147 (10th Cir.1990)). A Rule 60(b)(6) motion “might contend that a subsequent change in substantive law is a ‘reason justifying relief,’ Fed. Rule Civ. Proc. 60(b)(6), from the previous denial of a claim[,] E.g., Dunlap v. Litscher, 301 F.3d 873, 876 (C.A.7 2002),” Gonzalez v. Crosby, 125 S.Ct. at 2647, but even so, the “cases have required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’ justifying the reopening of a final judgment.” Id. at 2649.

Moreover, as to relief under Fed. R.Civ.P. 60(a):

Rule 60(a) may be relied on to correct what is erroneous because the thing spoken, written, or recorded is' not what the person intended to speak, write, or record. Allied Materials Corp. v. Superior Prods. Co., 620 F.2d 224, 226 (10th Cir. 1980). Rule 60(a) may not be used to change something that was deliberately done, Security Mut. Casualty Co. v. Century Casualty Co., 621 F.2d 1062, 1065 (10th Cir.1980), even though it was later discovered to be wrong. Allied Materials, 620 F.2d at 226. A correction under Rule 60(a) should require no additional proof. See, e.g., Trujillo v. Longhorn Mfg. Co., 694 F.2d 221, 226 (10th Cir.1982).

McNickle v. Bankers Life and Cas. Co., 888 F.2d 678, 682 (10th Cir.1989).

And to the extent that plaintiffs MacArthur, Lyman and Valdez again seek leave to amend their complaint, even though Rule 15(a) states that “leave [to amend] shall be freely given when justice so requires,” the court of appeals observes that “ ‘this presumption is reversed in cases, such as here, where a plaintiff seeks to amend a complaint after judgment has been entered and a case has been dismissed.’ Bressner v. Ambroziak, 379 F.3d 478, 484 (7th Cir.2004); see also Ahmed, 297 F.3d at 207-08 (liberality of Rule 15 no longer applicable once judgment has been entered).” The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1087-1088 (10th Cir .2005).

B. Singer, Riggs & Dickson’s Rule 59(e)/60(b) Motion

Plaintiffs Singer, Riggs and Dickson seek relief from this court’s October 31st Judgment under Fed.R.Civ.P. 59(e) and 60(a), (b)(1), (4) & (6), but without detailing the specific relief sought. {See Memorandum in Support of Plaintiffs Singer, Riggs, Dickson’s Motion for Clarification, Reconsideration and Amendment, filed November 7, 2005 (dkt. no. 850) (“Pltfs’ Mem. (850)”), passim.) The motion appears to be premised upon five core assertions:

(1) Congress has legislatively overruled Montana v. United States, as well as Strate v. A-1 Contractors, Atkinson Trading Co. v. Shirley, and Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), reviving inherent tribal civil authority over non-Indians in “Indian country” in all circumstances;

(2) The equal protection clause of the Indian Civil Rights Act, 25 U.S.C.A. § 1302(8) (2001), mandates the exercise of co-extensive tribal civil jurisdiction over tribal members and non-Indians in “Indian country” in all circumstances;

(3) This court lacks authority to review a tribal court order or judgment “for federal legal soundness except for Habeas relief!,] 25 USC [§ ] 1303,” (Pltfs’ Mem. (850), at 7);

(4) The County and the Health District have no governmental immunity because they are not the State or an “arm of the State” {id. at 7); and

(5) Under “the Court’s analysis of ... federal preemption doctrine, all the Navajo law and Orders and Judgments are enforceable at any time, interlocutory or not, without regard to commity [sic] or reciprocity of state and tribal immunity,” (id. at 6).

With the exception of plaintiffs’ equal protection theory under 25 U.S.C.A. § 1302(8), each of these propositions was addressed in some detail in this court’s October 12th Memorandum Opinion & Order (dkt. no. 837), MacArthur v. San Juan County, 391 F.Supp.2d 895 (D.Utah 2005), and upon examination, each proposition was shown to lack legal merit.

(1) Plaintiffs have not shown that Congress has legislatively overruled Montana v. United States, Strate v. A-l Contractors, Atkinson Trading Co. v. Shirley, and Nevada v. Hicks, reviving inherent tribal civil authority over non-Indians in “Indian country” in all circumstances

Plaintiffs’ Rule 59(e)/60(b) motion revives their centerpiece legal theory that the analysis of inherent Indian tribal civil authority over non-Indians under Montana and its progeny represents an “ ‘old-law’ analysis” superseded by recent congressional legislation. (Pltfs’ Mem. (850), at 1, 3-6 & nn. 2, 6-7, 10-11; see also “Plaintiffs’ Briefing on Montana,” filed February 13, 2003 (dkt. no. 492), at 2-10; “Federalism and Article III Court Limitations in Defining Navajo Tribal Court Jurisdiction” [unsigned original document submitted by plaintiffs’ counsel], filed February 24, 2003 (dkt. no. 502), at 7-15; Plaintiffs’ Motion for Summary Judgment for Enforcement of the Navajo Court Orders under Full Faith and Credit or Comity and Response of the District and County’s Briefs and Motions for Summary Judgment [ & Memorandum in Support], filed February 28, 2003 (dkt. no. 504) (“Pltfs’ Summ. Judg. Mem. (504)”), at 9-14 (“Pro[-]Tribal Presumptions”).) In plaintiffs’ view, “Congress ... has extinguished the Montana analysis altogether.” (“Plaintiff Singer/Riggs/Dickson’s Reply to the Defendants Second Opposition on Rule 60 Motion to Correct, Ammend, [sic] and Reconsider,” filed November 29, 2005 (dkt. no. 868), at 2.)

Plaintiffs again cite to the Indian Tribal Justice Act of 1993, the Indian Tribal Justice Technical and Legal Assistance Act of 2000, the Indian Civil Rights Act of 1968 (“ICRA”), as amended by Pub.L. No. 101-511, this time adding to that list the Indian Self-Determination and Education Assistance Act of 1975, the Indian Self-Determination and Education Assistance Contract Reform Act of 1994, and the Tribal Self-Governance Act of 1994. (Pltfs’ Mem. (850), at 3-4 & n. 7.)

According to plaintiffs’ counsel, the cited statutes “constitute a plan whereby the federal government turned operations of the federal Courts of Indian Offenses over to individual Indian Nations.” (Id. at 4.)

The Indian Nations individually volunteered for the program and met federal criteria, by government-to-government contract, on one statutory condition— that under the Indian Civil Rights Act (25 USC 1301 et seq, particularly 1302) and federally approved Indian Nation law, that includes here, the Navajo Nation Bill of Rights, Navajo customs and traditions, and Navajo statutes, and Navajo Rules of Civil Procedure and Rules of Evidence (patterned nearly identical to the federal, similarly to state rules) ‘any person’, not “any Indian” would be treated equally under ICRA. 25 USC 450Z and notes statutorily memorializes the model agreement and Congressional demands including the application of ICRA to the contract. EXHIBIT 1. This plan for Indian Nation Independence is consistent with history.

(Id. at 4-5 (emphasis in original; footnotes omitted).)

As recounted in some detail in this court’s October 12th Memorandum Opinion & Order, the Navajo Nation did not “volunteer” to take over “operations of the federal Courts of Indian Offenses” under a Pub.L. 93-638 Indian Self-Determination Act contract. MacArtfmr, 391 F.Supp.2d at 966-967. The BIA courts of Indian offenses were entirely displaced by the Navajo Nation Council’s creation of the Navajo courts in 1959, nine years before the enactment of the Indian Civil Rights Act and sixteen years before the enactment of Pub.L. 93-638. Id. The Bureau of Indian Affairs has continued to provide partial funding for the Navajo court system since that time, but the operation of the Navajo Nation Judicial Branch continues to embody the exercise of inherent Navajo sovereignty as recognized and enhanced by federal treaty and statutes. Indeed, the Navajo judiciary may well be startled by counsel’s assertion that the Navajo courts are acting as contract administrators of “federal Courts of Indian Offenses” in adjudicating the matters brought before them, applying “federally approved ... Navajo customs and traditions” and “BIA ratified, trained, funded” Navajo law. (Pltfs’ Mem. (850), at 3, 4.)

Nothing in Pub.L. 93-638, as amended by the 1994 legislation, or in the contracts made pursuant to its provisions purports to define, limit or expand the substantive extent of Navajo civil or criminal authority or adjudicative jurisdiction, or to limit or supersede the effect of Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), or later cases that follow it. The contract language simply acknowledges the substantive limitations that exist under ICRA and Navajo law.

Plaintiffs insist that the congressional legislation they cite has “lift[ed] the Montana presumptions and restrictions” and creates a presumption of tribal civil jurisdiction over tribal members and nonmembers alike, with no distinction as to land tenure within “Indian country” as defined under 18 U.S.C.A. § 1151 (2000). (Id. at 3.) Yet as explained in the October 12th Memorandum Opinion & Order, nothing in the language or legislative history of the 1990, 1993 and 2000 legislation addresses the question of the scope of inherent tribal civil jurisdiction over non-members after Montana. See MacArthur, 391 F.Supp.2d at 993-996.

When Congress acts to override the Court’s reading of federal law, it usually makes its purpose explicit. For example, the 1990 and 1991 amendments to 25 U.S.C.A. § 1301 were explicitly intended to overrule Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), as to the scope of inherent tribal criminal jurisdiction over non-member Indians, as clearly reflected in its legislative history. See United States v. Lara, 541 U.S. 193, 199, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004).

Similarly, the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991), legislatively overruled no less than six pri- or Supreme Court rulings construing federal anti-discrimination statutes, as clearly reflected in its findings and statement of legislative purposes, id. at §§ 2, 3, 105 Stat. 1071, and it legislative history. See, e.g., H.R.Rep. No. 102^40(1) (1991); H.R.Rep. No. 102-40(11) (1991); Interp. Mem., 137 Cong. Rec. S 15276 (Oct. 25, 1991); Roger Clegg, Introduction: a Brief Legislative History of the Civil Rights Act of 1991, 54 La. L.Rev. 1459 (1994).

No expressions of that kind are to be found with reference to the legislation relied upon by the plaintiffs. To the contrary, the 1993 and 2000 legislation reflects the Senate Indian Affairs Committee’s reading of Montana as confirming the existence of tribal civil authority over members and non-members. See MacArthur, 391 F.Supp.2d at 995 & n. 144.

Lara establishes that Congress may redefine the scope of tribal authority over non-members by legislative adjustment, as it did in response to Duro v. Reina concerning tribal criminal jurisdiction. Congress has not yet done so with reference to Montana or its progeny, including Strate, Atkinson, and the problematic Nevada v. Hicks, decided in 2001. So Montana continues to govern inherent Indian tribal civil authority over non-Indians conducting activities on non-Indian lands within reservation boundaries. See MacArthur, 391 F.Supp.2d. at 950-955, 968-971, 993-996; accord, Nelson v. Pfizer, Inc., No. SC-CV-01-02 (Navajo S.Ct. November 17, 2003); Manygoats v. Atkinson Trading Company, Inc., No. SC-CV-62-200 (Navajo S.Ct. August 12, 2003); Manygoats v. Cameron Trading Post, No. SC-CV-50-98 (Navajo S.Ct. January 14, 2000); cf. Dale Nicholson Trust v. Chavez, No. SC-CV-69-00 (Navajo S.Ct. January 6, 2004) (jurisdiction over state officers after Nevada v. Hicks).

(2)The equal protection clause of the Indian Civil Rights Act, 25 U.S.C.A. § 1302(8) (2001), does not mandate the exercise of co-extensive tribal civil jurisdiction over tribal members and non-Indians in “Indian country” in all circumstances.

Plaintiffs’ counsel insists that the equal protection language of the Indian Civil Rights Act of 1968, 25 U.S.C.A. § 1302(8), mandates the exercise of general Indian tribal civil jurisdiction over tribal members and non-members alike as to any matter arising in “Indian country” as defined by 18 U.S.C.A. § 1151 (2000). If tribal jurisdiction over non-Indian litigants is not co-extensive with jurisdiction over tribal member litigants, plaintiffs insist, tribal courts cannot treat litigants equally or provide equal justice to all persons, as § 1302(8) requires.

Section 1302 reads:

No Indian tribe in exercising powers of self-government shall—

(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;

(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;

(3) subject any person for the same offense to be twice put in jeopardy;

(4) compel any person in any criminal case to be a witness against himself;

(5) take any private property for a public use without just compensation;

(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;

(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and [1] a fine of $5,000, or both;

(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;

(9) pass any bill of attainder or ex post facto law; or

(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

25 U.S.C.A. § 1302 (2001) (emphasis added). Through § 1302, “Congress statutorily imposed on tribal governments a list of specific restraints consisting almost entirely of language copied verbatim from the Constitution, mainly from the Bill of Rights.” Note, The Indian Bill of Rights and the Constitutional Status of Tribal Governments, 82 Harv. L.Rev. 1343, 1345 (1969).

The original draft of the Act would have applied all constitutional guarantees to the tribes with some minor exceptions. Testimony in subcommittee hearings, however, demonstrated that strict application of certain constitutional guarantees would be destructive to Indian culture, and a substitute draft was adopted which enumerated some, but not all constitutional guarantees. The wording of the final version of the bill was taken nearly verbatim from the United States Constitution.

Comment, Martinez v. Santa Clara Pueblo: The Scope of Indian Equal Protection, 1976 Utah L.Rev. 547, 548 (1977) (footnotes omitted); see also United States v. Wheeler, 435 U.S. 313, 327-328, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (“the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. § 1302, made most of the provisions of the Bill of Rights applicable to the Indian tribes”).

Section 1302(8) forbids any Indian tribe in the exercise of its powers of self-government to “deny to any person within its jurisdiction the equal protection of its laws.” Plaintiffs’ counsel contends that this equal protection guarantee requires that “ ‘any person’, not any Indian’, would be treated equally” by tribal courts and that the Navajo courts apply Navajo law “ ‘uniformly’ to all persons within the Navajo borders without exception as to the type of land ownership under [18] U.S.C. 1151.” (Pltfs’ Mem. (850), at 4 & n. 9.) The equal and uniform application of Navajo law in turn requires the Navajo courts to exercise eo-extensive civil jurisdiction over tribal members and non-members alike; after all, counsel continues, “Oli-phant and its progeny never discussed the application of ICRA demands on Indian Nation tribunals, nor the constitutionality of the Indian Civil Rights Act, to restrict it.” (Id. at 6.)

In fact, Oliphant discussed ICRA’s relationship to tribal jurisdiction over non-Indians in a footnote:

Respondents do contend that Congress has “confirmed” the power of Indian tribes to try and to punish non-Indians through the Indian Reorganization Act of 1934, 48 Stat. 987, 25 U.S.C. § 476, and the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302. Neither Act, however, addresses, let alone “confirms,” tribal criminal jurisdiction over non-Indians. The Indian Reorganization Act merely gives each Indian Tribe the right “to organize for its common welfare” and to “adopt an appropriate constitution and bylaws.” With certain specific additions not relevant here, the tribal council is to have such powers as are vested “by existing law.” The Indian Civil Rights Act merely extends to “any person” within the tribe’s jurisdiction certain enumerated guarantees of the Bill of Rights of the Federal Constitution.

As respondents note, an early version of the Indian Civil Rights Act extended its guarantees only to “American Indians,” rather than to “any person.” The purpose of the later modification was to extend the Act’s guarantees to “all persons who may be subject to the jurisdiction of tribal governments, whether Indians or non-Indians.” Summary Report on the Constitutional Rights of American Indians, Subcommittee on Constitutional Rights of the Senate Committee on’ the Judiciary, 89th Cong., 2d Sess., 10 (1966). But this change was certainly not intended to give Indian tribes criminal jurisdiction over non-Indians. Nor can it be read to “confirm” respondents’ argument that Indian tribes have inherent criminal jurisdiction over non-Indians. Instead, the modification merely demonstrates Congress’ desire to extend the Act’s guarantees to non-Indians if and where they come under a tribe’s crimi- . nal or civil jurisdiction by either treaty provision or Act of Congress.

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 n. 6, 98 S.Ct., 1011, 55 L.Ed.2d 209 (1978).

Looking to the legislative history of § 1302(8), its sponsor, Senator Sam Ervin of North Carolina, had redrafted his Indian civil rights bill in 1967 “according to the recommendations of the Interior Department, but on one critical point he deviated from them[:]”

Interior originally worded its “equal protection” provision in such a way as to limit its application to members- of the tribe located within its jurisdiction. Sam Ervin’s revision, however, guaranteed equal protection to any person within the tribe’s jurisdiction. The significance of the altered wording was that it might be construed to extend equal benefits of tribal affiliation to non-Indians residing, leasing, or owning property on reservations, and subject to regulations established by the tribal councils.

Donald L. Burnett, Jr., An Historical Analysis of the 1968 ‘Indian Civil Rights’ Act, 9 Harv. J. Legis. 557, 602 n. 239 (1972) (emphasis in original). This view necessarily assumed that Indian tribes had at least some authority over non-Indians within reservation boundaries, evidenced, by rulings such as Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). The legislative history also reflects considerable concern for the protection of tribal civil and criminal jurisdiction over tribal members, but this arose in the context of the unilateral extension of state jurisdiction over Indian country without tribal consent under Public Law 83-280, enacted in 1953. See id. at 568-569, 596-599. The 1968 Act amended Public Law 83-280 to require tribal consent by referendum to any future extension of state jurisdiction over Indian country and to provide a mechanism for retrocession of state jurisdiction to the tribes and the federal government. Pub.L. No. 90-284, Title IV, 82 Stat. 78-80 (1968), codified at 25 U.S.C.A. §§ 1321-1326 (2001). See also 1 American Indian Policy Review Comm’n, Final Report 151-152 (1977).

Section 1302(8) thus guarantees the equal protection of' tribal law to tribal members and non-members alike, cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62-63 & n. 14, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), and was intended to guide and constrain the exercise of tribal authority within the tribes’ existing jurisdiction, but did not undertake to define or enlarge its scope.

Nine years later, the American Indian Policy Review Commission observed that “[t]he question of jurisdiction of tribal governments has grown increasingly complex in recent years,” and that “[tjribal governments are emerging from an essentially dormant period forcibly imposed upon them by Federal policies directed toward their ultimate destruction.” 1 American Indian Policy Review Comm’n, Final Report 153 (1977). Though “[tjhere is an established legal basis for tribes to exercise jurisdiction over non-Indians” as summarized in its Final Report, the Commission acknowledged that “the parameters of jurisdiction and authority of tribal governments” remained uncertain and were subject to “case by case determination” based in part on the “multiplicity of circumstances and variance in resources and capabilities of the tribes” at that time. Id. at 154.

While the enactment of the 1968 Indian Civil Rights Act “demonstrated that: (1) Congress confirmed that Indian tribes exercise jurisdiction over non-Indians when carrying out their powers of self-government, and (2) both Indians and non-Indians now have available ‘sources of protection against arbitrary tribal action.... ’ United, States v. Mazurie, 419 U.S. at 558 n. 12, 95 S.Ct. 710,” (Brief for Respondents, OLIPHANT v. SUQUAMISH INDIAN TRIBE, No. 76-5729, 1977 WL 189289, at *61 (1977)), nothing in the language of § 1302, its legislative history or its subsequent construction has been read to mandate that Indian tribes exercise civil authority over non-Indians coextensive with tribal civil authority over tribal members. See, e.g., Felix S. Cohen’s Handbook of Federal Indian Law 255 (Rennard Strickland, et al., eds. 1982) (“The breadth of retained power over non-Indians in civil matters has not been finally resolved.”); see also Robert J. McCarthy, Civil Rights in Tribal Courts: the Indian Bill of Rights at Thirty Years, 34 Idaho L.Rev. 465, 505-510 (1998).

(3) Plaintiffs’ assertion that this court lacks authority to review a tribal court order or judgment “for federal legal soundness except for Habeas relief[,] 25 USC [§ ] 1303,” has no substantive merit.

Plaintiffs Singer, Riggs and Dickson brought Navajo tribal court orders into this forum seeking this court’s aid in enforcing those orders against the named defendants. On remand, the court of appeals observed:

We are unwilling to enforce judgments of tribal courts acting beyond their authority, especially where defendants have a federal right “to be protected against an unlawful exercise of Tribal Court judicial power,” Nat’l Farmers, 471 U.S. at 851, 105 S.Ct. 2447, 85 L.Ed.2d 818; see Wilson, 127 F.3d at 810 (holding that “federal courts must neither recognize nor enforce tribal judgments if: (1) the tribal court did not have both personal and subject matter jurisdiction; or (2) the defendant was not afforded due process of law”).

MacArthur v. San Juan County, 309 F.3d 1216, 1225 (10th Cir.2002). As explained in the October 12th Memorandum Opinion & Order, this court must examine the subject-matter jurisdiction of the Navajo court as a predicate for any enforcement of its orders in this court, and that examination raises a federal question. See MacArthur, 391 F.Supp.2d at 985-988. That examination is not a matter of “injecting federal law in place of Navajo customs, traditions and statutory law” without constitutional or statutory authority. (Pltfs’ Mem. (850), at 2; see id. at 7 (review “would interject federal law into Navajo law, diminishing their independence”).) It is a matter of determining the legal basis for the exercise of federal judicial power where that power has been invoked by plaintiffs’ pleadings seeking to enforce the Navajo court’s orders in this forum.

(4) Plaintiffs’ assertion that the County and the Health District have no governmental immunity because they are not the State or an “arm of the State” has no substantive merit.

Plaintiffs’ counsel submits that this court’s dismissal of Riggs and Dickson’s claims against the Health District and defendant Atcitty reflected the “application of state sovereign immunity to a political subdivision (for the first time since Lord Coke in England ...),” (Pltfs’ Mem. (850), at 1 (footnote omitted)), which may overstate things a bit.

The doctrine of sovereign immunity from private suit finds its roots in the English common law. See, e.g., 3 William Blackstone, Commentaries on the Laws of England *254-*257 (1768); Guy I. Seid-man, The Origins of Accountability: Everything I Know about the Sovereign’s Immunity, I Learned from King Henry III, 49 St. Louis U. L.J. 393 (2005).

The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is not bound by the law’s provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e.g., Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L.Rev. 1, 3-4 (1963). The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high middle ages. “At least as early as the thirteenth century, during the reign of Henry III (1216-1272), it was recognized that the king could not be sued in his own courts.” C. Jacobs, Eleventh Amendment and Sovereign Immunity 5 (1972). See also 3 W. Blackstone, Commentaries, *244-*245; Jaffe, supra, at 2 (“By the time of Bracton (1268) it was settled doctrine that the King could not be sued eo nomine in his own courts”).

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 102-103, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (Souter, Ginsburg & Breyer, JJ., dissenting) (footnote omitted). Sovereign immunity was a privilege understood in the English common law to be reserved solely to the Crown: “the law ascribes to the king the attribute of sovereignty, or pre-eminence,” according to Blackstone, 1 William Blackstone, Commentaries on the Laws of England *241 (1765); it was the King against whom “no suit or action can be brought ... even in civil matters, because no court can have jurisdiction over him.” Id. at *242.

The common-law doctrine of the immunity of counties and other local governmental units “is generally considered to have originated with the English case Russell v. The Men of Devon, ” 2 Term Rep. 667, 100 Eng. Rep. 359 (1788). 1 Shepard’s Editorial Staff, Civil Actions Against State and Local Government: Its Divisions, Agencies and Officers § 1.6, at 19 (2d ed.1992).

Both of the common-law doctrines of sovereign immunity and local governmental immunity found their way into American jurisprudence:

These doctrines were recognized by the individual states of the United States from the outset. One court observed that the English common law doctrines of immunity seem to have been windblown across the Atlantic as were the pilgrims on the Mayflower and landed as by chance on Plymouth Rock, for the first American ease arose in Massachusetts. The cases ... set the tumbleweed in motion and nearly every state adopted the doctrine of immunity of the state for the torts of its officers.

Id. § 1.6, at 20 (footnotes omitted) (citing Mower v. Leicester, 9 Mass. 247 (1812)). The American “doctrine of sovereign immunity ... had its origins in the ‘familiar doctrine of the common law,’ The Siren, 7 Wall. 152, 74 U.S. 152, 153, 19 L.Ed. 129 (1868), ‘derived from the laws and prae-tices of our English ancestors,’ United States v. Lee, 106 U.S. 196, 205, 1 S.Ct. 240, 27 L.Ed. 171 (1882).” Seminole Tribe, at 130, 116 S.Ct. 1114 (Souter, Ginsburg & Breyer, JJ., dissenting) (footnote omitted).

Although statutes came to affect its importance in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see-3 W. Blackstone, Commentaries on the Laws of England ch. 17 (1768). Here, as in the mother country, it remained a -common-law rule. See generally, Jaffe, 77 Harv. L.Rev., at 2-19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L.J. 1, 17-41 (1926).

Id. at 131, 116 S.Ct. 1114. “Sovereign immunity is a common-law doctrine that long predates our Constitution and the Eleventh Amendment, although it has, of course, been carried forward in our jurisprudence.” Employees of Dept. of Public Health and Welfare of Missouri v. Department of Public Health and Welfare of Missouri, 411 U.S. 279, 288, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) (Marshall, J., concurring in result).

The doctrine of sovereign immunity, strictly defined, is comprised of two separate principles which traditionally have shielded states from litigation in their own courts. The first principle is that a state is immune from suit in its own courts without its consent.... The second principle encompassed by sovereign immunity is that a state is immune from liability for torts committed by its officers agents and employees.

1 Shepard’s Editorial Staff, Civil Actions Against State and Local Government: Its Divisions, Agencies and Officers § 1.1, at 2 (footnotes omitted). See also 57 Am. Jur.2d Municipal, County, School and State Tort Liability § 10 (2001) (“Sovereign immunity presents a complete bar to suits against the state and it embraces two distinct principles: immunity from liability and immunity from suit.”).

It is true that Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), observed that an “important limit to the principle of sovereign immunity is that it bars suits against States but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State.” 527 U.S. at 756, 119 S.Ct. 2240 (citing Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890)). But “[i]n many jurisdictions, a distinction is recognized between sovereign immunity, which applies to the state, state agencies, and state officers and employees, and the immunity of political subdivisions of the state such as counties and municipal corporations. The latter type of immunity is commonly referred to as governmental immunity.” 1 Shepard’s Editorial Staff, Civil Actions Against State and Local Government: Its Divisions, Agencies and Officers § 1.1, at 2-3 (footnotes omitted).

As noted above, the doctrine of local governmental immunity finds its own common-law roots. Justice Traynor, writing for the majority in Muskopf v. Coming Hospital District, 55 Cal.2d 211, 11 Cal. Rptr. 89, 359 P.2d 457 (1961), reviewed its history:

The rule of county or local district immunity did not originate with the concept of sovereign immunity. The first case to hold that local government units were not liable for tort was Russell v. Men of Devon, 100 Eng.Rep. 359. The case involved an action in tort against an unincorporated county. The action was disallowed on two grounds: since the group was unincorporated there was no fund out of which the judgment could be paid; and “it is better that an individual should sustain an injury than that the public should suffer an inconvenience.” 100 Eng.Rep. 359, 362. The rule of the Russell case was first brought into this country by Mower v. Inhabitants of Leicester, 9 Mass. 247, 249. There the county was incorporated, could sue and be sued, and there was a corporate fund out of which a judgment could be satisfied. Ignoring these differences, the Massachusetts court adopted the rule of the Russell case, which became the general American rule.

11 Cal.Rptr. 89, 359 P.2d at 459.

According to the Utah Supreme Court,

Sovereign immunity was a settled feature of the common law when Utah became a state and adopted its constitution. In Wilkinson v. State, 42 Utah 483, 492-93, 134 P. 626, 630 (1913), this court stated:

[I]n the absence of either express constitutional or statutory authority an action against a sovereign state cannot be maintained. The doctrine is elementary and of universal application, and so far as we are aware there is not a single authority to the contrary.

See also State v. District Court, 94 Utah 384, 389, 78 P.2d 502, 504 (1937) (“The State cannot be sued unless it has given its consent or has waived its immunity.”); Campbell Bldg. Co. v. State Road Comm’n, 95 Utah 242, 249, 70 P.2d 857, 861 (1937) (“[Ajction may not be maintained unless the state has, through legislative or constitutional action, given consent to be sued.”).

Tiede v. State, 915 P.2d 500, 504 (Utah 1996). Under Utah common law, “The recognition of sovereign immunity where properly applicable is hardly open to question in this state,” and “sovereign immunity” was understood by the Utah courts to extend to local government entities without any semantic distinction. Nestman v. South Davis County Water Improvement Dist., 16 Utah 2d 198, 398 P.2d 203 (1965); see also Lund v. Salt Lake County, 58 Utah 546, 200 P. 510, 515 (1921) (referring to “the doctrine maintained with practical unanimity in nearly every jurisdiction of the country to the effect that municipal corporations, especially county organizations, are not liable in such cases unless made so by express statute.”)

As recounted in the October 12th Memorandum Opinion & Order, Utah’s common-law sovereign and governmental immunity doctrines were superseded by the enactment in 1965 of the Utah Governmental Immunity Act, “ ‘which barred all causes of action against the state and its political subdivisions unless expressly authorized by statute.’ ” MacArthur, 391 F.Supp.2d at 1037 (quoting Tindley v. Salt Lake City School Dist., 2005 UT 30, ¶ 9, 116 P.3d 295, 298 (Utah 2005)).

In 1978, the Utah Governmental Immunity Act was amended, “cleaning up the prose and broadening the grant of immunity to include claims for ‘any injury which results from the exercise of a governmental function, governmentally-owned hospital, nursing home, or other governmental health care facility.’ 1978 Utah Laws ch. 27, § 2, at 92 (emphasis added).” Hansen v. Salt Lake County, 794 P.2d at 843.

These health care activities were not defined as governmental functions; rather, immunity was expanded to in-elude them in reaction to one of our cases holding that such activities were not governmental functions. See Stan-diford, 605 P.2d at 1238 (Hall, J., dissenting) (referring to legislature’s reaction to Greenhalgh, 530 P.2d 799). This new immunity was clearly subject to the exception language in the beginning of the amended sentence. See Utah Code Ann. § 63-30-3 (Supp.1979). It also preserved this court’s responsibility to interpret the scope and meaning of “governmental function.”

Id. (footnote omitted). By its 1978 amendment, “the legislature ‘resolved the health care classification question’ by granting immunity for such activities, subject to the Act’s exceptions.... The legislature did not define operation of a governmental health care facility as a governmental function; it granted immunity despite our holding in Greenhalgh [v. Payson City, 530 P.2d 799, 801 (Utah 1975) ] that such activities were not governmental functions.” Id. The Utah Legislature largely eliminated any governmental-proprietary distinction by amendment in 1987. See Tindley, 2005 UT 30, ¶ 21, 116 P.3d at 301; Carter v. Milford Valley Memorial Hosp., 2000 UT App 21, ¶ 14, 996 P.2d 1076, 1079 (2000).

Thus, at the time that plaintiffs commenced their lawsuit in the Navajo Nation District Court, there appeared to be no question that special districts such as the San Juan Health Services District were “governmental entities” covered by the Utah Governmental Immunity. Act, and that the Act governed private civil actions brought against such entities or their officers, directors or employees arising from the operation of a health care facility such as the Montezuma Creek Clinic. See MacArthur, 391 F.Supp.2d at 1037-1040, 1045-1052.

The court resolved the question of declaratory relief as to whether the Navajo Nation District Court may exercise its jurisdiction to grant judicial remedies against the Health District defendants by reference to recent case law from the Navajo Supreme Court indicating that as a matter of comity and reciprocity, the Navajo courts would abide by the governmental immunity of States and their subdivisions where those same States would respect the immunity of Indian tribes and their instrumentalities. See Office of Navajo Labor Relations ex rel Jones v. Central Consolidated School District No. 22, No. SC-CV-13-98 (Navajo S.Ct. 06/05/2003), at ¶[25]. See MacArthur, 391 F.Supp.2d at 1042-1045, 1052, 1055-1056. Resort to considerations of comity is commonplace when one sovereign is sued in the .courts of another sovereign. See, e.g., Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979); 1 Shepard’s Editorial Staff, Civil Actions Against State and Local Government: Its Divisions, Agencies and Officers § 1.4, at 13-15.

Plaintiffs’ counsel now argues that the Navajo court orders at issue may be enforced in this court “without regard to commity [sic] or reciprocity of state and tribal immunity,” (Pltfs’ Mem. (850), at 6), but without making any reference to or analysis of Jones or the principles of comity among separate sovereigns upon which Jones is footed. Instead plaintiffs’ counsel submits that- the defendants raised only Eleventh Amendment immunity before the Navajo court; that they waived any immunity by filing a counterclaim on behalf of the Health District against plaintiff Singer and by defending plaintiffs’ claims on the merits in that forum; and that “federal preemption doctrine” overcomes state law immunity of a “political subdivision ... carrying out federal proprietary commercial activities in the Navajo Nation.” (Id at 1, 6, 7, 8, 9 & Exh. 3.) “Because these political subdivisions are not the state,” counsel insists, “state immunity analysis need not apply.” (Id at 7.)

The copy of the defendants’ “Findings of Fact Conclusions of Law and Closing Arguments Against Granting of Preliminary Injunctive Relief,” filed November 29, 1999, in Donna Singer, et al. vs. San Juan County, et al, Case No. SR-CV-162-99-CV (Navajo Nation Dist. Ct.), and submitted by plaintiffs’ counsel as an exhibit to the present motion, does in fact refer to the Eleventh Amendment immunity of States from suits by Indian tribes as discussed in Blatchford v. Native Village of Noatak, 501 U.S. 775, 781, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). (Id at 17-18.) It also refers to State sovereign immunity as discussed in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), and argues that “a finding of authority in the Plaintiffs to bring the present action in tribal courts would invite claims by persons to do in tribal court against State and local government officials what the Plaintiffs could not do in federal or state courts against these same Defendants.” (Id at 18-20.) It further argues that “Congress cannot use its plenary power over the Navajo Nation to deprive the state of Utah and its immunized officials of the sovereign right to extend immunity to county and special district officials,” citing to Alden and Seminole Tribe. (Id. at 21-23.) The defendants’ assertion of governmental immunity before the Navajo court obviously was not confined to an assertion of Eleventh Amendment immunity, and indeed, appears to address the “federal preemption doctrine” argument now asserted by plaintiffs in the present motion.

Rather than reflecting the “application of state sovereign immunity to a political subdivision,” as plaintiffs contend, (Pltfs’ Mem. (580), at 1), this court’s analysis addressed the local governmental immunity of the Health District defendants as defined by the Utah Governmental Immunity Act. Perhaps it would clarify things simply to say that the Health District defendants are shielded by governmental immunity extended under the Act, in contrast to the sovereign immunity of States discussed in Alden v. Maine as being limited to States and entities that are “arms of the State.” See, e.g., 57 Am.Jur.2d Municipal, County, School and State Tort Liability § 10 (“sovereign immunity refers to the immunity of the state from suit and from liability, while governmental immunity refers to the similar immunities enjoyed by the state’s political subdivisions”). And this court was concerned with the effect of governmental immunity under the Utah Governmental Immunity Act as a bar to litigation of plaintiffs’ claims against the Health District defendants in tribal court, particularly in light of the Navajo principles of comity and reciprocity articulated in Jones. See also 57 Am.Jur.2d Municipal, County, School and State Tort Liability § 1 (“governmental or sovereign immunity is best described as a bar to liability”).

This court rejected the Navajo court’s legal conclusion that “the defendants” waived their immunity under the Utah Governmental Immunity Act through the Health District’s filing of a counterclaim against plaintiff Singer, particularly where that court lacked subject-matter jurisdiction over the dispute between Singer and the Health District. See MacArthur, 391 F.Supp.2d at 1040-1041. Plaintiffs’ present motion points to nothing reflecting an unequivocal intent on the part of the Health District defendants to waive their immunity under the Act — through their defense of plaintiffs’ applications for preliminary injunctive relief, or otherwise.

Nor does the eleventh-hour attempt by plaintiffs’ counsel in the present motion to “federalize” Navajo sovereignty and the operation of the Navajo courts suffice to overcome the Health District defendants’ governmental immunity by virtue of “federal preemption” under the Supremacy Clause, U.S. Const., art. VI, § 2.

(5) Plaintiffs’ assertion that under “the Court’s analysis of ... federal preemption doctrine, all the Navajo law and Orders and Judgments are enforceable at any time, interlocutory or not, without regard to commity [sic] or reciprocity of state and tribal immunity,” lacks merit.

Counsel makes repeated references to the Navajo Nation’s contract with the Bureau of Indian Affairs for partial funding of its judicial program, to “[fjederally ratified Navajo customs, traditions, and law,” to “BIA ratified, trained, funded Navajo law,” and “federally approved Indian Nation law,” (Pltfs’ Mem. (850), at 1, 3, 4), all in an apparent attempt to invoke “federal preemption” to overcome the defendants’ governmental immunity under Utah law. (See “Plaintiff Singer/Riggs/Dickson’s Reply to the Defendants Second Opposition on Rule 60 Motion to Correct, Ammend, and Reconsider,” filed November 29, 2005 (dkt. no. 868) (“Pltfs’ Reply Mem. (868)”), at 5-6 (“The argument that a state has inherent authority to immunize the lowliest worker in the lowliest political subdivisions for Treaty violations, the Article VI supreme law of the land, outside the Eleventh Amendment, occurring in or severely effecting [sic] two federally statutory protected Navajo regulated places within the reservation borders” is “legally merit less or frivolous”).)

This court did not suggest that the Utah Governmental Immunity Act shields the State of Utah or its subdivisions from liability under causes of action arising under the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States,” and therefore coming within the scope of the Constitution’s Supremacy Clause, U.S. Const., art. VI, § 2. That question did not arise in this case because plaintiffs insist that they have pursued causes of action arising exclusively under Navajo law in the Navajo court in obtaining the interlocutory orders that they now seek to enforce.

That the subject-matter jurisdiction of the Navajo courts and the scope of Navajo civil authority is delineated by federal law (as well as Navajo law) does not mean that the exercise of Navajo civil authority or the jurisdiction of the Navajo courts represents an extension of federal law. The Navajo courts plainly are not federal in-strumentalities — an “arm of the federal government” in the sense of merely being a “contracted out” version of the BIA Courts of Indian Offenses organized under Title 25 of the Code of Federal Regulations, as plaintiffs’ counsel now seems to suggest. Cf. Colliflower v. Garland, 842 F.2d 369, 378-379 (9th Cir.1965) (Fort Belknap CFR court of Indian offenses was an “arm of the federal government” holding petitioner in federal custody for purposes of federal habeas corpus relief).

The judicial power exercised by the Navajo courts is vested in the Navajo Judicial Branch by the Navajo Nation’s own organic laws rooted in its inherent sovereignty. See, e.'g., Bennett v. Navajo Bd. Of Election Supervisors, No. A-CV-26-90, at ¶¶ [31]-[45] (Navajo S.Ct. 12/12/1990); MacArthur, 391 F.Supp.2d at 968-969 n. 114. Navajo judicial power is not “the judicial Power of the United States” under Article III, or an extension of Congress’ legislative authority under Article I or other provisions of the United States Constitution, and it cannot call upon the aid of the Supremacy Clause to overcome a State’s legislative authority to define the immunity of its subdivisions and their officers from private suit arising from governmental conduct, or to obtain peremptory enforcement of Navajo court orders in other forums as a matter of “full faith and credit,” as plaintiffs’ counsel now appears to assert. (See Pltfs’ Reply Mem. (868), at 5-6.) Counsel’s characterization of modern Navajo sovereignty largely as an exercise in “BIA-approved” and supervised contract compliance appears to be directly at odds with the Navajo judiciary’s expressed views on the subject, pertinent Supreme Court case law, and recent scholarship, see, e.g., Sarah Krakoff, A Narrative of Sovereignty: Illuminating the Paradox of the Domestic Dependent Nation, 83 Or. L.Rev. 1109 (2004); David E. Wilkins, The Navajo Political Experience (rev. ed.2003).

Given the evolving principles of comity and reciprocity articulated by the Navajo Supreme Court in Jones, as well as the interlocutory nature of the tribal court orders at issue, this court need not decide whether a Navajo court may impose civil liability upon a State or its subdivisions absent an unequivocal waiver of governmental immunity under the applicable state statute, or whether such a tribal court judgment would be enforceable in a federal court. Cf. Montana v. Gilham, 133 F.3d 1133 (9th Cir.1998) (tribal court may not impose liability on a State absent a waiver of its sovereign immunity).

(6) This court has made no findings of fact in resolving the issues concerning the enforcement of the Navajo court orders at issue.

Plaintiffs assert that this court made its rulings in the October 12th Memorandum Opinion & Order by “finding new facts which were not a part of the Navajo trial record,” and erred “in making new erroneous Navajo law fact findings,” and that this court’s October 31st Judgment “lacks a finding of facts required under FRCP at rule 52.” (Pltfs’ Mem. (850), at 2, 8, 9 (emphasis in original).)

Contrary to counsel’s assertion, this court made no “new fact findings” concerning pertinent jurisdictional facts. The October 12th Memorandum Opinion & Order reviewed the preliminary findings of fact made by the Navajo court as reflected in that court’s written orders, and identified jurisdictional issues as to which the Navajo court made no findings of fact. For example, this court did not find that San Juan County and its officials “were not involved with the District,” (Pltfs’ Mem. (850), at 8); this court simply pointed out that the Navajo court made no specific findings that any of the County defendants were “involved with the District” concerning the employment actions of which the plaintiffs complained. MacArthur, 391 F.Supp.2d at 1004-1007. This court likewise pointed out that the Navajo court also made no findings of fact concerning plaintiffs’ exhaustion