UNC Resources, Inc. v. Benally, Civ. No. 80-750 HB.

• Decision Date: 08 May 1981
• Docket Number: Civ. No. 80-750 HB.
• Citation: 514 F. Supp. 358
• Parties: UNC RESOURCES, INC., a Virginia Corporation et al., Plaintiffs, v. Kee Joe BENALLY, Census No. 90261 et al., Defendants.
• Court: U.S. District Court — District of New Mexico

514 F. Supp. 358

UNC RESOURCES, INC., a Virginia Corporation et al., Plaintiffs, v. Kee Joe BENALLY, Census No. 90261 et al., Defendants.

Civ. No. 80-750 HB.

United States District Court, D. New Mexico.

May 8, 1981.

Russell Moore, Phil Krehbiel, Keleher & McLeod, Albuquerque, N. M., Michael Comeau, Bigbee, Stephenson, Carpenter, Crout & Olmsted, Santa Fe, N. M., Douglas L. Irish, Marty Harper, Jose A. Cardenas, Lewis & Roca, Phoenix, Ariz., for plaintiffs.

Michael C. Nelson, Wayne H. Bladh, Alan R. Taradash, DNA-People's Legal Services, Inc., Window Rock, Ariz., for defendants Fred Adakai, Lenita Adakai, Kieyone Begay, Mary Haley Begay, John Kenneth Billy and Betty Rose Billy.

MEMORANDUM OPINION

BRATTON, Chief Judge.

This case involves a large-scale accident in the uranium industry in New Mexico and raises novel questions of Indian tribal jurisdiction over non-Indians. It is before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss.

I FACTS

Plaintiff United Nuclear Corporation¹ owns and operates a mill for uranium ore near Churchrock, New Mexico. Close to the mill is a tailings area designed to hold solid and liquid wastes ("tailings") related to the milling process. These facilities are located on fee land south of the Navajo reservation.

In July 1979, the containment structure associated with UNC's tailings area failed. Solid and liquid tailings were released into an arroyo commonly called Rio Puerco of the West; these wastes flowed down the arroyo and into the State of Arizona. This incident came to be known as the Churchrock spill.

The course of the spill carried the wastes in a generally southwesterly direction through land occupied by Navajo Indians. All the land affected lies outside the boundaries of the Navajo reservation, but much of it is trust land and all of it falls within "Indian Country" — that checkerboard area of mixed federal, state, and tribal jurisdiction adjoining the reservation proper.

Many Navajos claimed that the tailings injured their livestock or caused them other harm. The defendants in this action are among this group.

On February 13, 1980, the Navajo Tribal Council approved a resolution providing in part:

The civil jurisdiction of the Courts of the Navajo Nation is hereby amended to include civil actions in which the defendant is a resident of Navajo Indian country, or has caused an action to occur in Navajo Indian country.

Pursuant to this resolution, the defendants instituted civil suits against UNC in Navajo Tribal Court seeking compensatory and punitive damages stemming from the Churchrock spill. UNC anticipates that other such suits will be filed and that Navajo claims against it will exceed $30 million.

UNC filed this action seeking preliminary and permanent injunctions barring the defendants from pursuing their claims in Tribal Court; UNC also seeks a declaratory judgment that the Navajo Tribal Court does not have jurisdiction over it and a further declaratory judgment that it is not liable to the defendants as a result of the Churchrock spill. The defendants have moved to dismiss, asserting that this Court lacks jurisdiction to hear the case. They also oppose UNC's motion for a preliminary injunction, arguing that UNC's challenge to the tribe's jurisdiction is without merit.

The Court will first consider the scope of Navajo tribal jurisdiction, then the propriety of preliminary injunctive relief, and finally any additional issues relating to the motions before it.

II TRIBAL COURT JURISDICTION

The principal issue in this lawsuit is raised by UNC's request that the Court enjoin the defendants from proceeding against UNC in Navajo Tribal Court and declare that the Tribal Court lacks jurisdiction over UNC. This Court has jurisdiction over this aspect of the case because of the substantial federal question presented. 28 U.S.C. § 1331.

The issue is one of retained tribal sovereignty.² No statute or treaty has been cited which expressly gives the Navajos authority to conduct civil lawsuits against non-Indians in Tribal Court. Nor has such power been expressly withdrawn from them. The situation is thus closely analogous to the one presented to the United States Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978).

In Oliphant, the Supreme Court held that an Indian tribe lacked the power to try non-Indians for criminal offenses committed on its reservation. The Court found no statute or treaty either authorizing the tribe in question to exercise criminal jurisdiction over non-Indians or prohibiting such exercise. The Court then rejected the Indians' argument that this power was an unsurrendered aspect of the tribe's original sovereignty.

Indian tribes, the Court held, do not retain powers that are "inconsistent with their status." 435 U.S. at 208, 98 S.Ct. at 1021; see also United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978). "Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty." 435 U.S. at 209, 98 S.Ct. at 1021. Having earlier noted that "the Bill of Rights in the Federal Constitution does not apply to Indian tribal governments," 435 U.S. at 194 n. 3, 98 S.Ct. at 1013 n. 3, the Court continued:

From the formation of the Union and the adoption of the Bill of Rights, the United States has manifested ... a great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty. The power of the United States to try and criminally punish is an important manifestation of the power to restrict personal liberty. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.

435 U.S. at 210, 98 S.Ct. at 1021. It followed that, in the absence of statutory authority, the tribe could not assert criminal jurisdiction over non-Indian defendants.

The Oliphant case controls here. The power to try and to assess civil penalties is the power to invade other liberties which the United States has an interest in protecting for its citizens against "unwarranted intrusions." Indian tribes therefore cannot exercise such civil jurisdiction over non-Indians without explicit congressional authorization.

The Navajos attempt to limit Oliphant to criminal cases, but the grounds they assert provide no basis for a distinction. Indeed, the factors they cite as present here were also present to an equal or greater extent in Oliphant but did not alter the result. They are therefore irrelevant to the determination of this case.

Thus, it does not matter that the Navajo Tribal Court may have evolved into a "sophisticated" tribunal "resembling in many respects its state counterparts." 435 U.S. at 211-12, 98 S.Ct. at 1022. This is a consideration "for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians." Id. at 212, 98 S.Ct. at 1022.

Similarly, it is irrelevant that the Indian Civil Rights Act, 25 U.S.C. § 1302, and tribal laws accord certain basic rights to all litigants in Tribal Court. These rights are not coextensive with constitutional guarantees, see 435 U.S. at 184, 98 S.Ct. at 1008, so they do not solve the problem perceived by the Court in Oliphant — the potential for tribal infringement of protected liberties.³

Finally, it does not matter that the Navajo tribe may have an interest in holding tortfeasors responsible for injuries to Indian land. If the interest in punishing violations of tribal criminal law by persons on the reservation was insufficient to support tribal jurisdiction in Oliphant, the Navajo tribe's lesser interest in applying its civil standards of behavior to conduct off the reservation will not sustain its jurisdiction here.⁴

The result in this case is supported by the Supreme Court's recent decision in Montana v. United States, ___ U.S. ___, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), where the Court stated: "Exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express Congressional delegation." Id. at ___, 101 S.Ct. at 1257. In that case, the Court held that an Indian tribe did not retain the power to regulate non-Indian hunting and fishing on non-Indian lands within the reservation. The matter was not "internal" because it related to persons other than tribal members, and it was not essential to tribal self-government because the tribe had long accommodated itself to extensive state control over hunting and fishing on fee lands within the reservation.

The situation here is similar. Navajo Tribal Court jurisdiction over non-Indian civil defendants necessarily involves the tribe's external relations, and it is not a power needed to protect tribal self-government because the tribal government has always been able to function without it. Such jurisdiction is therefore not part of the tribe's retained sovereignty.

In its opinion in Montana v. United States, the Supreme Court stated that the principles underlying Oliphant

support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing,

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