                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      MAY 11 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

EMPLOYERS MUTUAL CASUALTY                         No.   19-15835
COMPANY, an Iowa corporation,
                                                  D.C. No. 3:18-cv-08110-DWL
                 Plaintiff-Appellee,

 v.                                               MEMORANDUM*

DOREEN N. MCPAUL, Attorney General
of the Navajo Nation, in her official
capacity; CYNTHIA THOMPSON, Judge,
in her official capacity as tribal judge of the
Navajo Nation District Court; RUDY
BEDONIE, Judge, in his official capacity as
current tribal judge of the Navajo Nation
District Court,

                 Defendants-Appellants.

                    Appeal from the United States District Court
                             for the District of Arizona
                     Dominic Lanza, District Judge, Presiding

                              Submitted May 7, 2020**
                                 Portland, Oregon




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA, *** District
Judge.

      The Navajo Nation sued Employers Mutual Casualty Co. (“EMC”) and two

of EMC’s insureds, among others, in tribal court. The suit alleged that the insureds

had caused a gasoline leak on tribal lands and that EMC had declined to defend them

in the tribal court litigation nor indemnify them against any resulting liability. EMC

moved to dismiss the claims against it for lack of subject matter jurisdiction. The

tribal court denied the motion, and the Navajo Nation Supreme Court denied a writ

of prohibition. EMC then brought this action in district court against officials of the

Navajo Nation, challenging the tribal court’s jurisdiction. The district court granted

summary judgment in favor of EMC. We have jurisdiction of the appeal by the

Navajo Nation defendants under 28 U.S.C. § 1291 and affirm.

      1.     Because it is not contested that EMC’s relevant conduct—negotiating

and issuing general liability insurance contracts to non-Navajo entities—occurred

entirely outside of tribal land, tribal court jurisdiction cannot be premised on the

Navajo Nation’s right to exclude. See Window Rock Unified Sch. Dist. v. Reeves,

861 F.3d 894, 898, 904–05 (9th Cir. 2017) (construing Article II of the treaty

establishing the Navajo Reservation as allowing regulation of non-tribal defendants’

conduct on tribal land). The insurance contracts, which do not mention liability


      ***
            The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.

                                          2
arising from activities on the reservation, bear no “direct connection to tribal lands.”

Knighton v. Cedarville Rancheria of N. Paiute Indians, 922 F.3d 892, 902 (9th Cir.

2019).

      2.     Tribal jurisdiction also cannot lie under the second exception in

Montana v. United States, because EMC’s conduct did not take place “within [the]

reservation.” 450 U.S. 544, 566 (1981); see also Water Wheel Camp Recreational

Area, Inc. v. LaRance, 642 F.3d 802, 815 (9th Cir. 2011) (per curiam) (noting that a

tribe generally lacks authority over non-Indians beyond the reservation’s borders).1

Moreover, EMC’s refusal to defend and indemnify its insureds does not “imperil the

subsistence of the tribal community.” Plains Commerce Bank v. Long Family Land

& Cattle Co., 554 U.S. 316, 341 (2008) (internal quotation marks omitted); see also

Yellowstone Cty. v. Pease, 96 F.3d 1169, 1177 (9th Cir. 1996) (noting that

speculative harm is “insufficient to constitute the requisite imperilment”).

      AFFIRMED.




1
       The Navajo Nation defendants agree that the first Montana exception does not
apply. Their attempt to analogize tribal jurisdiction to personal jurisdiction therefore
fails because the Due Process Clause analysis applicable to personal jurisdiction
relates only to determining whether a consensual relationship exists under the first
exception. See Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1138 (9th Cir. 2006)
(en banc).

                                           3
