Two internet technology companies fighting over Navajo Nation business—one Native, and one not—have brought about a victory for tribal sovereignty. But their dispute also calls out a myth that non-natives can't expect justice in Navajo Nation courts.
The problem arose when James Wisch, a former employee of Albuquerque-based CamNet, Inc., left his position after four years and moved to Native Innovations, a Navajo-owned, newer company in Flagstaff, Arizona.
Both companies offer computer and other technical services to clients including schools on the Navajo Nation. Both companies say they take pride in going the extra mile for their clients. CamNet makes a practice of shepherding schools through cumbersome federal grant applications so they can take advantage of low-cost technological upgrades, for example. And Native Innovation is dedicated to reinvesting in the Navajo community.
“Instead of extracting and exporting profits from the tribes like 99% of our competitors, we want to instead reinvest our profits into our Native American employees, their families, and the communities that we serve,” states the company’s Facebook page.
Native Innovation has also given back by creating a Navajo keyboard application for Android and iPhone.
Wisch had signed a two-year non-solicitation agreement with CamNet, saying in essence that he would not try to lure clients away from his former employer during that period of time.
But within a couple of months, CamNet was hearing from its clients on the Navajo Nation that Wisch was doing exactly that, on behalf of his new employer.
Wisch released the following statement to Indian Country Today Media Network:
“…I do not believe the non-solicitation agreement was valid,” Wisch said. “That’s as far from ‘no comment’ as I’m willing to go. We’re just out here, ultimately, trying to help schools and improve education and technology on the rez, just like CamNet.”
Initially, CamNet president Cam Ferrante sent Wisch a letter, last summer, asking him to stop soliciting CamNet’s clients.
When Wisch ignored the cease and desist, CamNet took legal action, filing a lawsuit against Native Innovation.
“We compete with ten, 15 other businesses for the work on the Navajo Nation. We welcome the competition,” Ferrante told ICTMN. “We’ve never had any kind of legal action against anybody, but it was so blatantly unethical of him. The only thing we’re trying to do is have James [Wisch] live up to the agreement he made with us.”
A New Mexico court decided it didn’t have jurisdiction to hear the facts of the case. Alan M. Malott, a judge in New Mexico’s Second Judicial District in Albuquerque, dismissed the case in mid-December. The proper venue for the dispute, Malott decided, is the Navajo Nation court system.
Tsosie considered the ruling a victory for Indian-owned businesses and tribal sovereignty.
“Here's what it should look like when a big, multi-million dollar non-Native American owned company from off the rez sues a Navajo- and Veteran-owned small business,” he wrote to various media outlets. (CamNet employs 14 people, and Native Innovations employs three.)
Tsosie claims CamNet’s case would fail if Ferrante pursued it on the Navajo Nation.
“They’re non-Native,” he said. “Them suing a Navajo-owned company on the Navajo Nation is probably ridiculous. It’s probably something they won’t win.”
The Navajo courts would likely disagree that a Native-company would be given preference.
Asked to comment for this story, Josephine Foo, an associate attorney in the Navajo Nation Office of the Chief Justice, sent a 2005 Arizona State Law Journal article by University of Connecticut law professor Bethany Berger, reporting on 35 years of cases in the Navajo justice system.
“This investigation reveals that … the Navajo appellate courts are remarkably balanced in hearing cases involving outsiders. Non-Navajos win 47.4 percent and lose 52.6 percent of the cases in which they appear before the courts,” Berger wrote. “The decisions, moreover, appear to be qualitatively balanced, even with respect to cases and issues that might appear particularly vulnerable to bias.”
Raymond Austin served on the Navajo Nation Supreme Court from 1985 to 2001. He is currently a law professor at the University of Arizona, and he’s the author of a renowned 2009 book, Navajo Courts and Navajo Common Law. Austin says non-Navajo litigants who are not familiar with the Navajo courts often fear that the Navajo courts favor Navajo parties.
“That is simply not true and is one of the biggest stereotypes about tribal courts in the U.S.,” he says. “The U.S. Supreme Court is the biggest spreader of the myth that tribal courts are unfair to non-Indian litigants. In my 16 years on the Navajo bench, I have never come across or heard of a case where a Navajo judge favored a Navajo litigant over a non-Navajo litigant simply because one party was Navajo. The Navajo courts are fair and competent. They decide cases on evidence presented, not on the race of the parties.”
Even as Tsosie continues to trumpet the court dismissal through various media channels, he says he also hopes the court actions are over; he recently received a bill in the thousands from his law firm, Modrall Sperling, and it won’t be the last.
“That could have been my Christmas bonus,” he said.