UNC Resources, Inc. v. Benally, Civ. 80-749 PCT VAC.

Decision Date16 July 1981
Docket NumberNo.Civ. 80-749 PCT VAC.,Civ. 80-749 PCT VAC.
Citation518 F. Supp. 1046
PartiesUNC RESOURCES, INC., a Virginia corporation; United Nuclear Corporation, a Delaware corporation; and UNC Mining & Milling Services, Inc., a Delaware corporation, Plaintiffs, v. Kee Joe BENALLY, Census No. 90261, and Betty C. Benally, Census No. 61430, husband and wife; John Begay, Census No. 60035, and Shirley Begay, Census No. 11060-A, husband and wife; Mary Louise Yellowhorse, Census No. 37482; Walter Johnson, Census No. 60210, and Esther Johnson, Census No. 60858, husband and wife; Nasbah Russell, Census No. 58857; Betty Barney, Census No. 63304; Mary Ruth Joe, Census No. 39346; Mary B. Tsosie, Census No. 61847; Ga De Bah Smith and James and Irene Smith; Fred Adakai, Census No. 62512, and Lenita Adakai, Census No. 63792, husband and wife; Billy Chee, Census No. 61269, and Irene Chee, Census No. 33544, husband and wife; Kieyone Begay, Census No. 6392, and Mary Haley Begay, Census No. 41738, husband and wife; and John Kenneth Billy and Betty Rose Billy, husband and wife; individually and as representatives of a Class composed of themselves and all other persons similarly situated, Defendants.
CourtU.S. District Court — District of Arizona

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

Michael C. Nelson, Wayne H. Bladh, and Alan R. Taradash, DNA-People's Legal Services, Inc., Window Rock, Ariz., for defendants.


CORDOVA, District Judge.

This matter is before the Court on plaintiff's application for preliminary injunction, to enjoin defendants from pursuing their claims in Navajo Tribal Court, and on defendants' motion to dismiss for lack of jurisdiction. For the reasons below, the preliminary injunction will issue; the motion to dismiss will be granted in part.


Plaintiff United Nuclear Corporation1 owns and operates a uranium mill and tailings pond near Churchrock, New Mexico. These facilities are located on fee land south of the Navajo reservation. On July 16, 1979 the containment structure of the tailings pond failed, releasing liquid and solid tailings into the Puerco River. The course of the river carried this radioactive waste material across the New Mexico-Arizona state line and onto the Navajo reservation in Arizona.

Several Navajos, including the named defendants in this case,2 filed civil suits against UNC in the Navajo Tribal Court seeking compensatory and punitive damages for personal injuries and property damage sustained as a result of the spill. UNC anticipates that other such actions will be instituted and that Navajo claims against it will exceed $30 million. UNC filed the present action, as well as an identical suit in the United States District Court for the District of New Mexico,3 to obtain preliminary and permanent injunctions barring members of the defendant class from instituting or pursuing their claims in the Tribal Court. UNC also seeks a declaratory judgment that the Tribal Court does not have jurisdiction over it and a declaration that it is not liable to defendants as a result of the spill.


UNC's complaint alleges that this Court has jurisdiction under 28 U.S.C. §§ 1331, 1332, 1337, 1343(4), 2201, et seq., and 1651. Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure defendants moved to dismiss, asserting that none of these statutes confer subject matter jurisdiction. In its response UNC concedes that §§ 2201, et seq. (Declaratory Judgment Act), and 1651 (All Writs Act), do not provide an independent basis for jurisdiction, and it is clear that § 1343(4) (civil rights), is inapplicable and of no benefit to UNC here. Trans-Canada Enterprises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474, 476 n.3 (9th Cir. 1980). See Moore v. Johnson, 582 F.2d 1228, 1231 (9th Cir. 1978).

It is unnecessary to pass upon the applicability of sections 1332 (diversity), and 1337 (acts regulating commerce), since the Court concludes that it has jurisdiction under § 1331 (federal question).4 This case presents the substantial federal question of whether the Navajo Tribal Court has civil jurisdiction over UNC under the present circumstances. As indicated below, that question can only be resolved by considering the impact of treaties, statutes and overriding federal interests on the inherent sovereignty of the Navajo Tribe. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208-09, 98 S.Ct. 1011, 1020-21, 55 L.Ed.2d 209 (1978). Accordingly, the Court concludes that this action arises under the treaties and laws, if not the Constitution,5 of the United States within the meaning of § 1331.

Congress has eliminated some difficult jurisdictional issues from this case by deleting the jurisdictional amount requirement of § 1331. Pub.L.No.96-486, § 2(a), 94 Stat. 2369. Since that amendment is applicable to "any civil action pending" on December 1, 1980, and this action was filed on September 16, 1980, it is not necessary to address whether UNC has demonstrated the requisite amount in controversy as to its request for a preliminary injunction or shown that the doctrine of pendent jurisdiction is applicable to that claim.

Even though the Court has concluded that it has jurisdiction over the application for preliminary injunction, it will not exercise its discretion to consider the merits of UNC's request for a declaratory judgment of non-liability. This conclusion is mandated by the rule that it is not one of the purposes of the declaratory judgment act to enable a prospective negligence action defendant to obtain a declaration of non-liability. Cunningham Bros., Inc. v. Bail, 407 F.2d 1165, 1168 (7th Cir.) cert. denied, 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 745 (1969); Frito-Lay, Inc. v. Dent, 373 F.Supp. 771, 773 (N.D.Miss.1974); 10 C. Wright & A. Miller, Federal Practice & Procedure § 2765 (1973).

The Court will also decline UNC's request for a bill of peace to consolidate all of the Tribal Court suits against it into a single proceeding in this Court. Since the Tribal Court actions will be enjoined, there is no basis for such equitable relief.

Defendants' motion to dismiss will be granted to the extent of the declaratory judgment of non-liability and the bill of peace; in all other respects the motion will be denied.


UNC's application for preliminary injunction raises novel questions concerning the sources and scope of civil jurisdiction of the Navajo Tribal Court over non-Indians. On February 13, 1980 the Navajo Tribal Council approved a resolution extending civil jurisdiction of the Tribal Court over defendants who have "caused an action to occur in Navajo Indian country."6 Assuming for present purposes that the resolution is valid without approval of the Secretary of the Interior7 and that it may be applied retroactively to the July 16, 1979 spill,8 the issue reduces to whether the Tribe has the power to assume civil jurisdiction over a non-Indian defendant whose allegedly tortious conduct occurred off the reservation.

While the Supreme Court has not passed directly upon the question before this Court, it has long recognized that Indian tribes no longer possess the full attributes of sovereignty. Montana v. United States, ___ U.S. ___, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (Montana); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); Worchester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832). The tribes have been characterized as "quasi-sovereigns", Fisher v. District Court, 424 U.S. 382, 390, 96 S.Ct. 943, 948, 47 L.Ed.2d 106 (1976) (per curiam), and it has been noted that the sovereignty of tribes is different from that of states. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980) (Bracker). See Washington v. Confederated Tribes of Colville, 447 U.S. 134, 165, 100 S.Ct. 2069, 2087, 65 L.Ed.2d 10 (1980) (Brennan, J., concurring in part and dissenting in part) (Colville).

The Supreme Court has suggested the following analysis for ascertaining the limits of tribal sovereignty. The tribes retain those powers of self-government not voluntarily relinquished by treaty, not divested by Congressional enactment, and not inconsistent with the overriding sovereign interests of the United States. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208-09, 98 S.Ct. 1011, 1020-21, 55 L.Ed.2d 209 (1978) (Oliphant). See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (Wheeler). The tribes may also exercise those powers that would otherwise be inconsistent with overriding federal interests if Congress has explicitly delegated such powers to them. Montana, supra, 101 S.Ct. at 1257. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973).

In applying this analysis to the present case the Court does not find anything in the relevant treaties9 which would support the proposition that the Navajo Tribe has explicitly relinquished by treaty civil jurisdiction over non-Indians. Cf. Wheeler, supra, 435 U.S. at 324, 98 S.Ct. at 1086 (Navajo Tribe gave up power to try Navajos who commit crimes against non-Indians in treaties of 1850 and 1868). In reaching this conclusion the Court is guided in part by the rule that ambiguities in treaties are to be resolved in favor of the Indians. Oliphant, supra, 435 U.S. at 208 n.17, 98 S.Ct. at 1020 n.17.

Similarly, UNC has not pointed to any specific federal statute that would preclude the Tribal Court from hearing the claims raised by the Navajos against UNC. The only potentially applicable provision is 42 U.S.C. § 2210(n)(2) which confers original jurisdiction on the United States District Courts, without regard for diversity of citizenship or the amount in controversy, over...

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