Kerr-McGee Corp. v. Farley, Civ. No. 95-0438 MV.

• Decision Date: 08 June 1995
• Docket Number: Civ. No. 95-0438 MV.
• Citation: 915 F. Supp. 273
• Parties: KERR-McGEE CORPORATION, Cyprus Foote Mineral Corporation and Rio Algom, Ltd., Plaintiffs, v. Kee Tom FARLEY, Individually and on behalf of the Estate of Lucy K. Farley, Carmelita Farley Joe and Harold Kady, Sr., Individually and on behalf of the Estate of Julia Mae Kady, Defendants.
• Court: U.S. District Court — District of New Mexico

915 F. Supp. 273

KERR-McGEE CORPORATION, Cyprus Foote Mineral Corporation and Rio Algom, Ltd., Plaintiffs, v. Kee Tom FARLEY, Individually and on behalf of the Estate of Lucy K. Farley, Carmelita Farley Joe and Harold Kady, Sr., Individually and on behalf of the Estate of Julia Mae Kady, Defendants.

Civ. No. 95-0438 MV.

United States District Court, D. New Mexico.

June 8, 1995.

COPYRIGHT MATERIAL OMITTED

Michael R. Comeau, Jon J. Indall, Carpenter, Comeau, Maldegen, Brennan, Nixon & Templeman, Santa Fe, NM, for Kerr-McGee Corporation.

Robert N. Hilgendorf, Santa Fe, NM, Tom Galbraith, Jessica Youle, Lewis & Roca, Phoenix, AZ, for Cyprus Foote Minerals Corporation.

John D. Robb, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, NM, for Rio Algom, Ltd.

Mel E. Yost, Scheuer, Yost & Patterson, Santa Fe, NM, for Umetco Minerals Corporation, Union Carbide Corporation.

Kevin Gover, Gover, Stetson & Williams, Albuquerque, NM, Cherie V. Daut, Shiprock, NM, for Kee Tom Farley, Carmelita Farley Joe, Harold Kady, Sr.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER came on for consideration of the Plaintiff's Complaint for Preliminary Injunction and Declaratory Judgment, filed April 21, 1995. Plaintiffs ask this Court to permanently enjoin Navajo Tribal Court proceedings and declare that the Navajo Tribal Court is without jurisdiction to hear and adjudicate any of the claims asserted against them in tribal court.

The Court has reviewed the Complaint, the Plaintiffs' Motion for Preliminary Injunction, filed April 21, 1995, and the Responsive pleadings and finds that the tribal abstention doctrine applies to this case and requires this Court to abstain from further action in this matter until the Tribal Court has ruled on the jurisdictional question.

FACTUAL BACKGROUND

On January 12, 1995, three members of the Navajo tribe filed suit in Navajo Tribal Court against the above named Plaintiff Corporations which allegedly operated the Shiprock Mill, a uranium processing mill located on the Navajo Reservation, on leased tribal land.¹ The Tribal Court complaint seeks damages for alleged negligence and wrongful death arising out of the Corporations' alleged operation of the Shiprock Mill in violation of tribal law. The Corporations have not answered the tribal court complaint nor otherwise appeared in the Navajo Tribal Court on this matter; instead they filed this action.

Here, the Corporations assert that the Price-Anderson Act, 42 U.S.C. § 2011, et seq., contains an "express jurisdictional prohibition" to tribal court suits involving nuclear torts, thereby depriving tribal courts of jurisdiction and relieving them of any duty to exhaust tribal court remedies.

DISCUSSION

The tribal exhaustion requirement, enunciated by the Supreme Court in 1985, is based on considerations of comity and the long-standing policy of promoting tribal self-government and self-determination. National Farmers Union Ins. Co. & Lodge Grass Schl. Dist. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). In National, the Court held that tribal court remedies should be exhausted before the matter is heard in federal court. Id. The Court explained that the existence and extent of a tribal court's jurisdiction requires a careful examination of tribal sovereignty and found "that examination should be conducted in the first instance in the Tribal Court." Id. at 856, 105 S.Ct. at 2454.

It is clear that the exhaustion doctrine does not strip this Court of jurisdiction over this matter as this Court retains both federal question and diversity jurisdiction. See National Farmers, 471 U.S. 845, 105 S.Ct. 2447; Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987). It is equally clear that Supreme Court precedent requires, not as a jurisdictional prerequisite, but as a matter of respect, that this Court allow the tribal court to first hear and determine the challenge to its jurisdiction. Id.

"Proper respect for tribal legal institutions requires that they be given a full opportunity to consider the issues before them and to rectify any errors." Iowa Mutual, 480 U.S. at 16, 107 S.Ct. at 977.

Tribal exhaustion not only promotes tribal self-government and self-determination, it promotes judicial efficiency:

The orderly administration of justice in the federal court will be served by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed ... exhaustion of tribal court remedies, moreover, will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review.

National Farmers, 471 U.S. at 856-57, 105 S.Ct. at 2454.

An exception to the tribal exhaustion requirement exists where tribal court jurisdiction "is patently violative of an express jurisdictional prohibition". Id. at 857 n. 21, 105 S.Ct. at 2454 n. 21.²

Plaintiffs urge that this exception applies here and relieves this Court of any obligation to exercise comity and defer to the Navajo Tribal Court to first examine the jurisdictional challenge they pose. They emphatically argue that an express jurisdictional prohibition can be found in the language and legislative history of the amended Price-Anderson Act. Plaintiffs' arguments fail because they fail to reconcile their theories with Indian Sovereignty principles. Indeed, they ignore them.

Plaintiffs urge that an express jurisdictional prohibition exists because through the Price-Anderson Act, and its amendments, the federal government has preempted the nuclear regulatory field. They urge that in this comprehensive regulatory "system" lies the exclusive method for resolving nuclear tort claims, preempting any conflicting state law or regulation, and allowing for an absolute right of removal from state to federal court.

Plaintiffs err in assuming that tribes are to be treated as states. Indian tribes and the federal government are dual sovereigns. Tribes have a unique relationship with the federal government and occupy a unique status under the law. See National Farmers, 471 U.S. at 851, 105 S.Ct. at 2451. As Chief Justice John Marshall observed in the historical case of Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1931): "The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence ... The relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else." Id. at 16.

The federal-tribal relationship is distinct in that it involves special trust obligations requiring the United States to adhere strictly to fiduciary standards in its dealings with Indians. F. Cohen, Handbook on Federal Indian Law, 207 (1982).

Accordingly, in its examination of the tribal exhaustion doctrine, this circuit has distinguished between federal-state jurisdiction and federal-tribal jurisdiction:

As in cases raising comity concerns regarding federal-state jurisdiction, comity concerns in federal-tribal civil jurisdiction, arise out of mutual respect between sovereigns. In the realm of federal-tribal jurisdiction, however, Congress has expressed an additional interest in promoting the development of tribal sovereignty. The Supreme Court has recognized this congressional intent and assiduously advocated federal abstention in favor of tribal courts.

Smith v. Moffett, 947 F.2d 442, 445 (10th Cir.1991) (emphasis added).

Plaintiffs incorrectly assert the Navajo Nation has no jurisdiction over this matter because the power to hear nuclear torts was not expressly delegated to them in Price-Anderson. This position turns the historic tribal sovereignty analysis on its head. It is clearly established law that Indian tribes do not derive their sovereign powers from congressional delegation. Rather, tribal sovereignty is inherent, and tribes retain "attributes of sovereignty over both their members and their territory, to the extent that sovereignty has not been withdrawn by federal statute or treaty." Iowa Mutual, 480 U.S. at 14, 107 S.Ct. at 975 (emphasis added); See also United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978) (tribes possess aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependant status).

Tribal courts play a vital role in tribal self-government. Id. With respect to tribal court jurisdiction, civil jurisdiction over such activities presumptively lies in the tribal court unless affirmatively limited by a specific treaty provision or federal statute. Id. at 18, 107 S.Ct. at 977; Smith, 947 F.2d at 444 (emphasis added).

The Price-Anderson Act and its amendments are devoid of any mention of "Indians," "tribes," or "tribal-court jurisdiction." In Iowa Mutual, the Supreme Court refused to infer that Congress, in enacting the diversity statute, 28 U.S.C. § 1332, intended to limit tribal sovereignty, in the absence of express language to that effect:

The diversity statute, 28 U.S.C. § 1332, makes no reference to Indians and nothing in the legislative history suggests any intent to render inoperative the established federal policy promoting tribal self-government.

480 U.S. at 17, 107 S.Ct. at 977. The Court reasoned that because tribes retain all inherent attributes of sovereignty that have not been expressly divested by the federal government, "the proper inference from silence ... is the sovereign power ... remains intact." Iowa Mutual, 480 U.S. at 18, 107 S.Ct. at 978 (citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 n. 14, 102 S.Ct. 894, 908 n. 14, 71 L.Ed.2d 21 (1982).³

Interpreting silence in favor of Indians is consistent with the trust relationship existing between the federal government and the tribes. Since Congr...