Amicus Curiae Brief — El Paso Natural Gas Co. v. Neztsosie

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

Ext Paso NATURAL GaAs CoMPANY, et al.,

Petitioners,

Vv.

LAURA NEZTSOSIE, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL MINING ASSOCIATION

IN SUPPORT OF PETITIONERS

Of Counsel: JAMES B. HAMLIN

HAROLD P. QUINN, JR. (Counsel of Record)

KATIE SWEENEY ANTHONY J. THOMPSON

NATIONAL MINING EDWARD C. SCHWEITZER, JR.

ASSOCIATION SHAW PITTMAN POTTS

1130 17th Street, N.W. & TROWBRIDGE

Washington, D.C. 20036 2300 N Street, N.W.

Washington, D.C. 20037

(202) 663-8000 =

December 8, 1998 Attorneys for Amicus Curiae

WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........................

INTEREST OF AMICUS CURIAE .........2-......-..00-+0s000-

SUMMARY OF ARGUMENT ................-

I. PRICE-ANDERSON PROVIDES THE EX-

CLUSIVE REMEDY FOR CLAIMS ARISING

FROM NUCLEAR INCIDENTS AND GIVES

DEFENDANTS AN ABSOLUTE RIGHT TO

HAVE SUCH CLAIMS DECIDED IN A SIN-

GLE FEDERAL COURT . ..W0022020022.....c:ecceee-0e

A. Price-Anderson Is One of Many Incentives

Offered by the Federal Government To Pro-

mote Nuclear Energy .................--------0--esee0e----

B. The Objective of Price-Anderson Is To Com-

pensate the Victims of a Nuclear Incident

Quickly and Uniformly, While Limiting the

Liability of Contractors and Licensees ..........

1. Price-Anderson Makes All Claims Aris-

ing From a Nuclear Incident Federal

Ra ada ER eR IRS I SAD

2. Price-Anderson Gives Defendants the

Right To Remove All Claims Arising

From a Nuclear Incident to United States

he BR aE Te ean eee eer eres

C. Price-Anderson Preempts State-Law Claims

Otherwise Arising From a Nuclear Incident

and Necessarily Preempts Any Similar

ieee

II. THE FEDERAL REMEDIAL SCHEME IS

INCOMPATIBLE WITH TRIBAL COURT

ITE crtenstcnnectasibttiicmecittiebeibintndncititiddnen

IIE dintcctatadennasinipnnivnscicctninnasicieneseenesintdgipbebinen

awe k&

12

14

15

17

- ii

TABLE OF AUTHORITIES

Cases

Aquatherm Indus., Inc. v. Florida Power & Light

Co., 84 F.3d 1388 (11th Cir. 1996) .......................

Arizona Public Serv. Co. v. Aspaas, 77 F.3d 1128

(BU Cle, BGBD cccceneccccnscnstictnisabiiekedcmeane

Becenti v. Vigil, 902 F.2d 777 (10th Cir. 1990) ....

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

(| < } SSE Nr os PE eee

DeCoteau v. Sentry Ins. Co., 915 F. Supp. 155

th 8: | SR eoane ern yr ere i Te

Duncan Energy Co. v. Three Affiliated Tribes, 27

Pp’ Bt RCo | | ere ee

Enlow v. Moore, 134 F.3d 993 (10th Cir. 1998)...

FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311

(tb | RRA ie ee

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 478

(BOGE) .aneeceoccccecovesievelnssnceseisisuaianaanaiaumnaananaanaal

Hapgood v. City of Warren, 127 F.3d 490 (6th Cir.

|, | eM DEnEn Ty ey

lowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9

(1B FD cccccncccsccinencistiecisivadessiiabaddamssnt ihn

Kerr-McGee Corp. v. Farley, 115 F.3d 1498 (10th

Cir. 1997), cert. denied, 118 S. Ct. 880 (1998)..

Lane v. Central Bank of Alabama, N.A., 756 F.2d

SIA (Ait Clr. BOGBD inncc.cncscseciecneeanenee

LaBeau v. Dakota, 815 F. Supp. 1074 (W.D. Mich.

|) EERE Kime wemenes TE

Maine v. Thiboutot, 448 U.S. 1 (1980) ................

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.)

le) || | pee eas ites ne

Montana v United States, 450 U.S. 544 (1981)...

Mustang Prod. Co. v. Harrison, 94 F.3d 1382 (10th

Cir. 1996), cert. denied, 117 S. Ct. 1288 (1997)..

Nieman v. NLO, Inc., 108 F.3d 1546 (6th Cir.

WOOT) ccececocsccvccitibiinnasaliiassiiiiiliiammpaiasiamalineindes

O’Conner v. Commonwealth Edison Co., 18 F.3d

tC Ry, Fe ee ee

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978) ...... on om

iii

TABLE OF AUTHORITIES—Continued

Page

Roberts v. Florida Power & Light Co., 146 F.3d

SRN at ie J 15

Santa Clara Pueblo v. Martinez, 486 U.S. 49

RENE SS SERIES SEE A a 25

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

pata ERE g Tg Ea 10, 15, 16

Strate v. A-1 Contractors, 117 S. Ct. 1404 (1997)... 10, 14,

16, 26

Tafflin v. Levitt, 498 U.S. 455 (1990) 27

Tennessee v. Davis, 100 U.S. 257 (1880) .......... 14, 16

In re TMI Litig. Cases Consol. II, 940 F.2d 882

gg RACE eet Ata te ea 15

United States v. Tsosie, 92 F.3d 1037 (10th Cir.

SEITE sd deeiedtthidilanidhsaitiactabatiniclits tindindgseancnnlensalaiipiianen: 21

UNC Resources, Inc. v. Benally, 518 F. Supp.

I, I I a 18

Washington v. Confederated Tribes of Colville, 447

U.S. 134 (1980) Eat A ATE, SORE 16

Weso v. Menominee Indian School Dist., 915 F.

Supp. 73 (E.D. Wis. 1995) 21

Wilson v. Marchington, 127 F.3d 805 (9th Cir.

1997), cert. denied, 118 S. Ct. 1516 (1998) ........ 23

Yellow Freight System, Inc. v. Donnelly, 494 U.S.

ESS RST Say ar a Sc

3

Statutes and Regulations

7 Navajo Nation Code § 354(C) 0.

Code of the Winnebago Tribe § 2-111...

Colville Tribal Code § 4.1.11 00

i lt RE A a TE

a ER SS

SE ee

Basi aT iad

| i pan a ie, a icaazee ecaey

Price-Anderson Act, 42 USC. §§ 2012-2014,

2210 ..

Ome eee ee ee eeee

Pub. L. No. 89-645, 80 Stat. 891 en 9, 10

iv

TABLE OF AUTHORITIES—Continued

Page

Pub. L. No. 100-408, 102 Stat. 1076 (1988) _............ 13

i 2 6800 Ee 17, 18, 19

Legislative History

H. Conr. Rep. No. 103-383, eect in 1993

U.S.C.C.A.N, 2458 .. pee lorte wee 25

H.R. Rep. No. 100-104, ‘Part1 (1987) . EAS EN 12, 13

S. Rep. No. 100-218 (1988), reprinted in 1988

U.S.C.C.A.LN,. 1476 .. saan 8, 11, 12

S. Rep. No. 100-70 (1988), reprinted i in 1988

OT eS 0 eee 5, 8,9

S. Rep. No. 1605 (1966), reprinted in 1966

ET SS RR a a ae RE “ae RES 9, 10

Miscellaneous

HOLGER ALBRETHSEN & FRANK E. MCGINLEY,

DOE, SUMMARY HIsToRY OF DOMESTIC URANIUM

PROCUREMENT UNDER U.S. ATOMIC ENERGY

COMM’N CONTRACTS: FINAL REP’T, (1982)... 6

Fredric Brandfon, Comment, Tradition and Judi-

cial Review in the American Indian Tribal Court

System, 38 UCLA L. REV. 991 (1991) .............. 17

BUREAU OF INDIAN AFFAIRS, NATIVE AMERICAN

TRIBAL COURT PROFILES (1985) ........................... 19, 20

William C. Canby, Jr., Civil Jurisdiction and the

Indian Reservation, 1973 UTAH L. REV. 206... 18, 19

Robert N. Clinton, Tribal Courts and the Federal

Union, 26 WILLIAMETTE L. REV. 841 (1990)... 23

COMPTROLLER GENERAL OF THE UNITED STATES,

CLEANING UP COMMINGLED URANIUM MILL

TAILINGS: Is FEDERAL ASSISTANCE NECESSARY?

9 QQ ey———————E—E a 7

Robert D. Cooter & Wolfgang Fikentscher, Jndian

Common Law: The Role of Custom in Ameri-

can Indian Tribal Courts, 48 Am. J. Comp. L.

ene i i er eee 19

VINE DELorRIA, Jr. & CLIFFORD M. LYTLE, AMERI-

CAN INDIANS, AMERICAN JUSTICE (1983) 17, 18, 19

v

TABLE OF AUTHORITIES—Continued

Page

B.J. Jones, Welcoming Tribal Courts into the Judi-

cial Fraternity, 24 WM. MITCHELL L. REv. 457

| EEE PR a se Se ee 19

Timothy W. Joranko, Exhaustion of Tribal Rem-

edies in the Lower Courts After National Farm-

ers Union and Iowa Mutual, 78 MINN. L. REV.

AE ee ee ee 25

Melissa L. Koehn, Civil Jurisdiction: The Bound-

aries Between Federal and Tribal Courts, 29

Ariz. St. L.J. 705, 712 (1997) 0... 19

Robert Laurence, Full Faith and Credit in Tribal

Courts, 28 N.M.L. Rev. 19 (1998) ... 23

Nell Jessup Newton, Tribal Court Praris: One

Year in the Life of Twenty Indian Tribal Courts,

22 AM. INDIAN L. Rev. 285 (1998)... 22

1 OFFICE OF NUCLEAR MATERIAL, UNITED STATES

NUCLEAR REGULATORY COMM’N, FINAL GENERIC

ENVIRONMENTAL IMPACT STATEMENT ON URA-

NIuUM MILLING (NUREG-0706) (Sept. 1980). 6

FRANK POMMERSHEIM, BRAID OF FEATHERS

areal Rar PRE MAR Re Das 3 th a ta SE aD 17

Janet Reno, A Federal Commitment to Tribal

Justice Systems, 79 JUDICATURE 1138 (1995)... 26

Judith Resnik, Dependent Sovereigns: Indian

Tribes, States and the Federal Courts, 56 U.

2 23

Laurie Reynolds, Adjudication in Indian Country:

The Confusing Parameters of State, Federal,

and Tribal Jurisdiction, 38 WM. & MARY L. REV.

EE Se ee eS 20

Laurie Reynolds, Exhaustion of Tribal Remedies:

Ertolling Tribal Sovereignty While Expandina

Federal Jurisdiction, 73 N.C.L. Rev. 1089

St ORE eS a Sc 26

Laurie Reynolds, “Jurisdiction” in Federal Indian

Law, 27 N.M.L. Rev. 359 (1997)... 25

Michael Taylor, Modern Practice in the Indian

Courts, 10 U. Pucer Sounp L. REV. 231 (1987). 20, 23

vi

TABLE OF AUTHORITIES—Continued

Page

UNITED STATES DEpP’T OF THE INTERIOR, MINERAL

OB ae Te oe 2

Gloria Valencia-Weber, Tribal Courts: Custom

and Innovative Law, 24 N.M.L. Rev. 225

(1944) lila in 18, 19, 20, 23

Carey N. Vicenti, The Reemergence of Tribal So-

ciety and Traditional Justice Systems, 79 JuDI-

CATURE (1995) . 19

Blake A. Watson, The Curious Case of Disappear-

ing Federal Jurisdiction Over Federal Enforce-

ment of Federal Law, 80 Marg. L. Rev. 531

(1997) ... 17

James W. Zion & Robert Yazzie, Indigenous ‘Lew

in North America in the Wake of Conquest, 20

B.C. Int’L & Comp. L. Rev. 55 (1997)... 20

In THE

Supreme Court of the United States

OcTOBER TERM, 1998

No. 98-6

Ex Paso NATURAL Gas CoMPANY, et al.,

a Petitioners,

LAURA NEZTSOSIE, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL MINING ASSOCIATION

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The National Mining Association (“Association”)' is

a trade association representing producers of most of

America’s coal, metals, and industrial and agricultural

minerals. Its membership also includes manufacturers of

ship includes approximately 70% of the companies in the

i No party or its counsel has authored any part of the Associa-

tion’s brief. No person or entity other than the Association and its

counsel has made a monetary contribution to the preparation or

submission of this brief.

2

current domestic uranium industry, many of which have

or had operations on or near Indian reservations. The

principal purpose of the Association is to represent those

with interests in the nation’s mineral resources industries

in the important public policy issues affecting the develop-

ment and use of mineral resources. To that end, the As-

sociation seeks to develop policies that will foster the

efficient production, distribution and use of mineral

products.

The mining companies in this case are merely examples

of many such companies that worked closely with the

federal govermment to create this country’s domestic

uranium industry and to promote its nuclear energy pro-

gram in the 1940s, 1950s and 1960s. The decision below,

as it stands, may result in a dramatic expansion of tribal

court jurisdiction over the activities of non-Indians, in-

cluding many Association members who worked closely

with the federal government in developing nuclear energy.

In the United States today, more than 45 different Indian

tribes lease out portions of their reservation lands for

mining operations. See UNnitep States Dep’T OF THE

INTERIOR, MINERAL REVENUES 1997, at 84 (1998).

More than 2.1 million acres of Indian lands were under

lease for mining purposes in 1997, with revenues exceed-

ing $200 million. /d. at 83, 124-25. These mining opera-

tions are potentially affected by an expansion of tribal

court jurisdiction to include claims based on federal stat-

utes. The Ninth Circuit’s rationale is not limited to the

Price-Anderson Act, but could be extended to other

federal statutes. Nor is the Ninth Circuit’s decision limited

to current mining operations. The uranium mining at

issue here took place 30-40 years ago, but the court of

appeals made no effort to determine whether there was

any reason for the mining companies to believe that they

were subjecting themselves to tribal court jurisdiction

when they began—or even when they ceased—operations

on the reservations. Other Association members may be

3

brought into tribal court for long-terminated activities if

the Ninth Circuit’s decision is allowed to stand.

Counsel for the parties have consented to the filing of

this amicus brief. Their letters of consent have been filed

with the Clerk.

SUMMARY OF ARGUMENT

The district court enjoined the respondents from prose-

cuting their claims “to the extent that [respondents] seek

relief based upon the Price-Anderson Act in tribal court.”

El Paso Natural Gas Co. v. Neztsosie, 136 F.3d 610, 613

(9th Cir. 1998). The Ninth Circuit, acting sua sponte,

reversed the injunction because it could find nothing in

the Price-Anderson Act, 42 U.S.C. §§ 2012-2014, 2210

(“Price-Anderson”), expressly prohibiting tribal courts

from adjudicating Price-Anderson claims. The decision

of the court of appeals should be reversed because it seri-

ously undermines Congress’ statutory scheme to provide

a uniform federal remedy and a federal forum to resolve

all claims arising out of a nuclear incident. The federal

remedial scheme is wholly incompatible with tribal-court

adjudication of such claims.

Price-Anderson is an essential part of a comprehensive

federal program to develop and regulate nuclear energy.

It provides a comprehensive remedial system to assure

public compensation in the event of a nuclear accident

and to limit the liability of private participants in the

nuclear industry. This limitation of liability was one of

several incentives that the federal government provided to

encourage private companies to participate with it in de

veloping nuclear energy. The Act establishes procedures

for efficient and uniform resolution of all claims resulting

from any nuclear incident, including the absolute right of

removal to a single federal court. Just as the Atomic

Energy Act as a whole preempts any non-federal attempt

to regulate nuclear energy, Price-Anderson preempts all

other laws in the field it occupies, in keeping with the

4

overriding congressional intent to provide a uniform fed-

eral remedy subject to adjudication in a federal court for

all claims resulting from « nuclear incident.

Adjudication of such claims in tribal courts is incom-

patible with the comprehensive federal regulation of nu-

clear energy and the federal remedial scheme that applies

to all claims arising from nuclear incidents. There are

more than 150 tribal courts in operation today, applying

different tribal laws in accordance with varying procedures

and judicial philosophies. Under the Ninth Circuit's

rationale, any of these courts would have jurisdiction to

hear and decide Price-Anderson claims. This could pro-

duce anomalous results because some courts do not con-

sider themselves bound to apply federal law when it con-

flicts with tribal law. Thus, there is no guarantee that a

tribal court would apply Price-Anderson (and the federal

cases interpreting it) to claims arising out of a nuclear

incident. Moreover, the defendant sued in tribal court

would probably be precluded from removing to federal

court. Both the general federal removal statute and Price-

Anderson’s special removal provision authorize removal

only from state courts. At the conclusion of the tribal

court proceedings, the defendant would have no certain

means of assuring a review on the merits in the federal

courts. It is clear that the federal district courts may

review a tribal court’s jurisdictional determination. But

it is not at all clear that any appellate mechanism would

be available by which the tribal court’s decision on the

merits could be reviewed in federal court. As a result,

the federal court system—and ultimately this Court—

could lose control over the interpretation and application

of an important federal statute and important federal

policies.

In summary, tribal court adjudication would frustrate

federal regulation of nuclear energy and the three main

purposes of the Price-Anderson Act: (1) to create a

federal-law remedy that would be consistently applied to

all nuclear incidents; (2) to assure a single federal forum

———

5

for resolution of the claims; and (3) to assure uniformity

in the treatment of all claims—uniformity that can be

assured only if all judicial decisions are subject to ulti-

mate review in this Court.

ARGUMENT

I. PRICE-ANDERSON PROVIDES THE EXCLUSIVE

REMEDY FOR CLAIMS ARISING FROM NUCLEAR

INCIDENTS AND GIVES DEFENDANTS AN AB-

SOLUTE RIGHT TO HAVE SUCH CLAIMS DE-

CIDED IN A SINGLE FEDERAL COURT

A. Price-Anderson Is One of Many Incentives Offered

by the Federal Government To Promote Nuclear

Energy

Price-Anderson was enacted in 1957 as section 170 of

the Atomic Energy Act of 1954. It was intended “to

remove a major deterrent to private participation in the

development of nuclear energy” by setting a limit on the

liability of private industry in the event of a nuclear acci-

dent. S. Rep. No. 100-70, at 13 (1988), reprinted in

1988 U.S.C.C.A.N. 1424, 1426. Limiting the liability of

persons responsible for nuclear incidents was, Congress

found, “in the interest of the general welfare and of the

common defense and security.” 42 U.S.C. § 2012(i).

Price-Anderson, however, was only one of many ways in

which Congress attempted to encourage private industry

to participate with the federal government in developing

nuclear energy. Price-Anderson must be seen in that wider

context.

Beginning in 1946, when the Atomic Energy Act was

originally passed, the federal government saw an urgent

need to discover sources of uranium in the United States

and to advance the ae necessary to extract and

concentrate uranium ore. Encouraged, sponsored

licensed and closely regulated by what was then the

Atomic Energy Commission (“AEC”), mining companies

increased the known mineable reserves of uranium ore in

6

the United States ninety-fold between 1946 and 1959.”

Nearly all of these reserves are located in the western

United States, on or near Indian reservations.

Because the AEC wanted to purchase uranium concen-

trate rather than uranium ore, it encouraged mining com-

panies to build and operate government-licensed process-

ing mills. As an incentive, the AEC offered contracts

under which the AEC agreed to purchase uranium con-

centrate at a price that would allow the private company

to recover its cost of constructing and operating the

processing mill over the life of the contract.* The AEC’s

program to develop a domestic uranium industry reached

its peak in 1961, when 27 processing mills were operat-

ing. Id. In fact, the AEC’s program was too successful,

producing more uranium than the AEC could use. Be-

cause the AEC was effectively the only buyer for uranium

at the time,* the number of active uranium mills and the

quantity of uranium they produced dropped sharply he-

tween 1967 and 1970, as the AEC scaled back its pur-

chases. URANIUM MILLING at 2-2.

2See 1 OFFICE OF NUCLEAR MATERIAL, UNITED STATES NUCLEAR

REGULATORY COMM’N, FINAL GENERIC ENVIRONMENTAL IMPACT

STATEMENT ON URANIUM MILLING (NUREG-1706) at 2-1 - 2-4 (Sept.

1980) (history of uranium milling and status of inactive uranium

milling operations) (hereafter “URANIUM MILLING”). Known mine-

able reserves were 900,000 metric tons in 1946 and 81,000,000 metric

tons in 1959. Jd. at 2-1.

3 See HOLGER ALBRETHSEN & FRANK E. MCGINLEY, DOE, Sum-

MARY History OF DOMESTIC URANIUM PROCUREMENT UNDER U.S.

AToMIC ENERGY COMM’N CONTRACTS: FINAL REp’T, at 8 (1982)

(hereafter “URANIUM PROCUREMENT”).

4 Between 1948 and 1970, the AEC purchased about 300,000

metric tons of uranium (U,O,), more than half of that (with a

value of $3 billion) domestically produced. URANTUM MILLING at

2-1. During most of this period, the federal government was the

only buyer for uranium concentrate. The first private sale of

uranium concentrate occurred in 1966, under a license from the

AEC. URANIUM PROCUREMENT at 5.

7

The AEC’s contracts with uranium-mining and process-

ing companies were exceptionally detailed and compre-

hensive. They did not, however, include provisions gov-

erning disposal of the sand-like radioactive waste (called

“mill tailings”) produced when the raw uranium was

processed, except to specify that the mill tailings should

be stockpiled near the plant. At the time, there appeared

no reason to do more. Until the mid-1970s—after most

uranium mines and mills, including those at issue in this

case, had shut down—the AEC concluded from all the

available information that the mill tailings were essentially

harmless. Because the contracts were supposed to com-

pensate mining companies for their costs, requiring the

mining companies to do more would have cost the govern-

ment more. As the Comptroller General of the United

States acknowledged in 1978, mill owners

acted in good faith in carrying out their responsibili-

ties in meeting contract provisions and Federal regu-

lations. Unfortunately, like the Federal Government,

they did not recognize that the tailings were a poten-

tial A was hazard, and did not provide for their

control. -

COMPTROLLER GENERAL OF THE UNITED STATES, CLEAN-

ING Up COMMINGLED URANIUM MILL Tarincs: Is Fep-

ERAL ASSISTANCE NECESSARY? at iv (Feb. 5, 1979). The

federal government thus had a “strong moral responsi-

bility” to share in the cost of cleaning up the mill tailings

that had been “generated under Federal contracts.” Jd.

at Vv.

The waste from uranium mining and processing that

allegedly injured the respondents was generated under

federal contracts by private companies working closely

with the federal government in support of a comprehen-

sive federal program to promote the national interest in

nuclear energy. Those private companies were effectively

acting as agents of the federal government in furtherance

of an important federal policy. They could not have

imagined that their actions on behalf of the federal gov-

ernment and in compliance with federal regulations would

expose them to unlimited liability (including punitive

damages) under tribal law in a tribal court. Congress

intended them to rely—and presumably they did rely—

on the federal government to define through regulation

the limits of nuclear safety and on the protections offered

by Price-Anderson.

B. The Objective of Price-Anderson Is To Compensate

the Victims of a Nuclear Incident Quickly and

Uniformly, While Limiting the Liability of Con-

tractors and Licensees

Price-Anderson has been amended several times, most

substantially in 1988. From the beginning, however, Con-

giess has attempted to strike a balance between two funda-

mental but conflicting objectives: to compensate those in-

jured by a nuclear accident; and “to set a limit on the

liability of private industry to remove a major deterrent

to private participation in the development of nuclear

energy.” S. Rep. No. 100-70, at 13.

Price-Anderson was originally designed to provide “a

comprehensive, compensation-oriented system of liability

insurance for Department of Energy {[“DOE”] contractors

and Nuclear Regulatory Commission [“NRC”] licensees

operating nuclear facilities.” S. Rep. No. 100-70, at 14.

The Price-Anderson “system” has three principal compo-

nents: (1) a limit on the aggregate liability of DOE con-

tractors and NRC licensees; (2) “channeling of liability”

for all damages resulting from a nuclear incident to the

DOE contractor or NRC licensee, “even though other

parties (such as subcontractors or suppliers) might be

liable under conventional tort principles”; and (3) a com-

mitment by the federal government to indemnify DOE

contractors and NRC licensees for any liability claims

that exceed the amount of financial protection that the

contractors and licensees can obtain from private insurers.

Id. See S. Rep. No. 100-218, at 2 (1988), reprinted in

9

1988 U.S.C.C.A.N. 1476, 1477. In short, Congress in-

tended Price-Anderson to provide a “unified and efficient

approach to processing and settlement of claims, thus

allowing quick compensation to the public from the pool

of funds set up by the Price-Anderson system.” S. Rep.

No. 100-70, at 14.

In 1966, Congress amended Price-Anderson to add a

provision for consolidating, in a single federal district

court, suits resulting from an “extraordinary nuclear occur-

rence” (one which the NRC judged to involve a “sub-

stantial” release of radioactive materials). Pub. L. No.

89-645, 80 Stat. 891 (1966) (amended in 1988). Con-

gress had several reasons for this 1966 amendment that

are relevant to the issues now before the Court. In par-

ticular, Congress intended the 1966 amendment to “reduce

the likelihood of unequal treatment of victims” of a nu-

clear incident. S. Rep. No. 1605 (1966), reprinted in

1966 U.S.C.C.A.N. 3201, 3207.

Even in the event of an “extraordinary” nuclear inci-

dent, Congress expected that “relatively few claims” would

actually be litigated. Jd. at 3215. Nevertheless, Congress

tried to ensure that “a claimant who does feel constrained

to take his claim to court should not be subjected to pro-

cedural requirements different from those some other

claimant might face.” Jd. One victim of a nuclear inci-

dent, Congress said, should not “be subject to different

substantive and procedural laws than would apply to an-

other victim simply by reason of an invisible State bound-

ary line that separates them.” Jd. at 3208. Congress con-

cluded that an “absolute right of removal” to a single

federal court was necessary to assure “more expeditious

and uniform treatment of all parties” following a major

nuclear incident. Jd. at 3215.5

5As Senate Report 1605 notes, “If the circumstances of the

occurrence and the damage actions did not appear to the Commis-

sion or to the defendant to necessitate removal to this single Fed-

eral court, an action started in a State court or other Federal court

10

The 1966 amendment made no mention of tribal courts,

referring specifically only to removal from “any State

court.” Pub. L. No. 89-645, 89 Stat. 891, § 3. Permit-

ting tribal courts but not state courts to retain jurisdiction

over claims arising from an “extraordinary nuclear occur-

rence” would, however, have been contrary to the very

purpose for providing an “absolute right of removal” to

the federal district court in the district where the “ex-

traordinary nuclear occurrence took place.” Congress in-

tended to provide for consolidation of “all suits arising

out of a serious nuclear incident.” S. Rep. No. 1605,

1966 U.S.C.C.A.N. at 3208 (emphasis added). Accord

id. at 3215 (“all law suits arising from an ‘extraordinary

nuclear occurrence’ ”; “all cases arising from the same set

of circumstances”). Congress never intended that claims

arising from a nuclear incident could be brought in tribal

court.

This Court has made it clear that “[a]s to non-members

. a tribe’s adjudicative jurisdiction does not exceed its

legislative jurisdiction” unless Congress expressly enlarges

tribal-court jurisdiction. Strate v. A-1] Contractors, 117

S. Ct. 1404, 1413 (1997). Congress did not expressly

enlarge tribal-court jurisdiction to hear claims arising from

a serious nuclear incident when it amended Price-Anderson

in 1966. On the contrary, Congress clearly intended

that “the rights of persons who are injured are established

by State law.” S. Rep. No. 1605, 1966 U.S.C.C.A.N. at

3226. In other words, Congress left no room for the

Indian tribes to exercise legislative jurisdiction over lia-

bility arising from such a nuclear incident. Accordingly,

tribal courts could have no adjudicative jurisdiction over

such claims.®

could of course proceed to judgment in that court.” 1966

U.S.C.C.A.N, at 3215.

6 Originally, Congress gave the Atomic Energy Commission ex-

clusive jurisdiction to regulate nuclear materials. Silkwood v.

Kerr-McGee Corp., 464 U.S. 238, 249-50 (1984). In 1959, Congress

amended the Atomic Energy Act to allow a state to regulate

in various state and Federal courts.” S. Rep. No. 100-

218, at 13. Maintaining these similar cases in multiple

jurisdictions was duplicative and inefficient. /d. It was

at 18. In testimony to Congress, attorneys for both plain-

pi

individuals injured as the result of a nuclear incident,

arising from any nuclear incident federal claims, and

second, it gave defendants, the NRC and DOE an abso-

lute right to remove such claims to the federal district

court go the district in which the nuclear incident oc-

curred. (Sinner heggye ya teed

in the event of any nuclear incident, all claimants would

be subject to Foy ‘same substantive and procedural laws

and that all claims would be handled uniformly and ex-

nuclear byproduct materials and some other nuclear materials if

the state adopted a suitable regulatory program. /d. at 250. Con-

gress continued to preclude states from regulating the more hazard-

ous nuclear materials because, for those materials, “the technical

safety considerations are of such complexity that it is not likely

that any State would be prepared to deal with them during

the foreseeable future.” Jd. (quoting H.R. Rer. No. 86-1125, 3

. Congress gave no regulatory authority over nuclear ma-

12

peditiously. H.R. Rep. No. 100-104, at 18 (“equitable

and uniform treatment of victims”); S. Rep. No. 100-218,

at 13 (avoiding “the inefficiencies resulting from duplica-

tive determinations of similar issues in multiple juris-

dictions” ).

In 1988, as in 1966, Congress made no reference to

tribal courts. Nevertheless, in 1988 (as in 1966) permitting

tribal courts to adjudicate claims arising from a nuclear

incident—made federal claims in 1988—would have been

directly contrary to Congress’ intent to ensure that vic-

tims of a nuclear incident would be treated uniformly and

that liability be determined efficiently.

1. Price-Anderson Makes All Claims Arising From

a Nuclear Incident Federal Claims

As amended in 1988, Price-Anderson, through a series

of interlocking definitions, makes all claims arising from

a “nuclear incident” federal claims. Moreover, “nuclear

incident” is broadly defined to include both injuries caused

by radiation and those caused by the toxic characteristics

of mine tailings other than radioactivity.

* Price-Anderson defines “public liability action” as

“any suit asserting public liability” and expressly

states that any “public liability action shall be

deemed to be an action arising under section 2210

of this title.” 42 U.S.C. § 2014(hh) (emphasis

added). Thus, a public liability action arises

7 The “substantive rules for decision “

tion” are “derived from the law of the State in which the nuclear

i to

:

5

~

ceptions -

(emphasis added ).*

* “Nuclear incident” means “any occurrence, includ-

ing an extraordinary nuclear occurrence, within

the United States causing, within or outside the

United States, bodily injury, sickness, disease, or

death, or loss of or damage to , Or loss

of use of property, asising out of or remuting from

the radioactive, toxic, explosive, or other hazard-

ous properties of source, nuclear, or by-

product material.” 42 U.S.C. § 2014(q). “Source

material” includes uranium and ores containin

tion of uranium or thorium from any ore proc-

for its source material content,”

sR

t

Sh

4.

os

o

a

No. 100-104, Part 1, at 18 (1987). The definition of “public lia-

bility action” was added in 1988. Price-Anderson Amendments Act

of 1988, Pub. L. 100-408, §11(b). The other, related definitions

were already part of Price-Anderson.

8 The three exceptions under section 2014(w) underscore how

sweeping Price-Anderson’s definition of “public liability” is. The

exceptions are “(i) claims under State or Federal worktnen’s com-

pensation acts of employees of persons indemnified who are em-

ployed at the site of and in connection with the activity where the

nuclear incident occurs; (ii) claims arising out of an act of war;

and (iii) whenever used in subsections (a), (c), and (k) of section

14

produced by extracting or concentrating uranium from

uranium-bearing ores is a federal claim. All the claims

at issue in this case—and any similar claims in other

future cases—are federal claims. By prescribing that the

“substantive rules for decision” in “any suit” arising from

a nuclear incident “shall be derived from the law of the

State in which the nuclear incident occurs” (unless that

state law is inconsistent with Price-Anderson), 42 U.S.C.

§ 2014(hh), Congress made clear that Indian tribes have

no jurisdiction to legislate regarding such claims and thus

have no jurisdiction to adjudicate any claims arising from

a nuclear incident. See Strate, 117 S. Ct. at 1413.

2. Price-Anderson Gives Defendants the Right to

Remove All Claims Arising From a Nuclear

Incident to United States Distric. Court

Congress amended Price-Anderson in 1988 to provide

an absolute right of removal of all “public liability

actions” from state court to the United States district court

in the district where the underlying “nuclear incident”

occurred—or to the United States District Court for the

District of Columbia, if the nuclear incident occurred

outside the United States. 42 U.S.C. § 2210(n)(2).

Removal serves the critical purpose of promoting uni-

formity and efficiency. Indeed, uniformity is even more

important now that all claims arising from a nuclear in-

cident are federal claims. Long ago, this Court recognized

“the importance, and even necessity of uniformity of deci-

sions throughout the whole United States” on questions

of federal law. Martin v. Hunter's Lessee, 14 U.S. (1

Wheat.) 304, 347-48 (1816). A right of removal to

federal court is “essential” to the “uniform and consistent

application of national laws.” Tennessee v. Davis, 100

U.S. 257, 266 (1880). More than a hundred years ago,

this Court rightly held that “the founders of the Consti-

tution could never have intended to leave to the possibly

varying decisions of the State Courts what the laws of the

government it established are [or] what rights confer.”

15

Id. Just so, Congress can never have intended to leave to

the possibly varying decisions of tribal courts what rights

and protections Price-Anderson provides in the event of a

nuclear incident.

Authorizing tribal courts to adjudicate federal claims

under Price-Anderson, as the Ninth Circuit did sua sponte

in this case, interferes with Congress’ objectives in making

claims arising from a nuclear incident federal claims and

in providing for the consolidation of all such claims aris-

ing from a single incident before a single federal court.

Authorizing tribal courts to adjudicate those federal claims

would promote disparity of procedure and even substan-

tive law and would cause delay.®

C. Price-Anderson Preempts State-Law Claims Other-

wise Arising From a Nuclear Incident and Neces-

sarily Preempts Any Similar Tribal-Law Claims

By making any and all claims resulting from a nuclear

incident federal claims, Price-Anderson preempts any

state-law claims that may previously have existed. Silk-

wood, 464 U.S. at 248 (“If Congress evidences an intent

to occupy a given field, any state law falling within that

field is pre-empted.”); Roberts v. Florida Power & Light

Co., 146 F.3d 1305, 1307-08 (11th Cir. 1998) (state

tort standards of care are preempted by federal regulatory

standards in cases arising from nuclear incidents); Nieman

v. NLO, Inc., 108 F.3d 1546, 1552-53 (6th Cir. 1997)

(claimant may sue for damages arising from a nuclear

incident only under Price-Anderson; “the state law claims

cannot stand as separate causes of action”); O’Conner v.

Commonwealth Edison Co., 13 F.3d 1090, 1099 (7th

Cir. 1994) (state cause of action for injuries arising from

a nuclear incident is supplanted by the new federal cause

of action); In re TMI Litig. Cases Consol. II, 940 F.2d

832, 854 (3d Cir. 1991) (“A claim growing out of any

nuclear incident is compensable under the terms of the

® See further discussion, infra, in Section II.

16

Amendments Act, or it is not compensable at all,” be-

cause state causes of action for injuries arising from a

nuclear incident no longer exist).

Because federal preemption is founded on the Suprem-

acy Clause in the United States Constitution, preemption

must apply a fortiori to tribal law. See Washington v.

Confederated Tribes of Colville, 447 U.S. 134, 154 (1980)

(tribal sovereignty is “dependent on, and subordinate to,

only the Federal Government”). See also Strate, 117

S. Ct. at 1416 (tribe’s inherent sovereignty does not ex-

tend beyond “what is necessary to protect tribal self-

government or to control internal relations”). As a

result, there can be no tribal-law claims related to a nu-

clear incident for a tribal court to try. Indeed, a rule of

law that prevented a federal court from taking charge of

a case arising under federal law would deny “the con-

ceded sovereignty of [the federal] government over a sub-

ject expressly committed to it.” Tennessee v. Davis, 100

US. at 267.

Even where preemption is not complete (as it is here),

state (or tribal) law is preempted to the extent it “stands

as an obstacle to the accomplishment of the full purposes

and objectives of Congress.” Silkwood, 464 U.S. at 248.

A law permitting tribal courts to exercise jurisdiction over

Price-Anderson claims would stand as an obstacle to Con-

gress’ purpose in amending Price-Anderson in 1988 be-

cause it would subject claimants outside the jvrisdiction

of the tribal court to different procedures and (as ex-

plained in more detail below) potentially different sub-

stantive law than claimants within the tribal court's juris-

diction. It would also frustrate Congress’ clearly expressed

10In Strate, the Court held that “[o)pening the Tribal Court”

for the “optional use” of an Indian plaintiff was “not necessary

to protect tribal self-government,” and that requiring the non-Indian

defendants to defend in “an unfamiliar court” was “not crucial to

protect the political integrity, the economic security or the health

or welfare” of the tribe. 117 S. Ct. at 1416.

17

intent to permit defendants to have Price-Anderson claims

decided in a federal court.

Il. THE FEDERAL REMEDIAL SCHEME IS INCOM-

PATIBLE WITH TRIBAL COURT ADJUDICATION

The tribal courts are a relatively recent development in

the history of the Indian tribes. Although the tribes have

always had their traditional dispute resolution mecha-

nisms, formalized court systems were not introduced until

the late Nineteenth Century." In 1883, the Secretary of

the Interior authorized the establishment of Courts of In-

dian Offenses (“CIOs”), which were staffed by Indian

judges but operated under the control of the Interior De-

partment. See FRANK POMMERSHEIM, BRAID OF FEATHERS

61-64 (1995); Detoria & LyTLe 114-15. At its zenith,

the CIO court system was in operation in approximately

two-thirds of the reservations across the country. These

courts came to be known as “CFR Courts” because the

Bureau of Indian Affairs promulgated regulations govern-

ing proceedings in the courts. 25 C.F.R. Part 11 (1998).

11 There were notable exceptions. The Cherokee Nation has long

had a formalized system of government, including a Supreme Court

that antedated the Supreme Court of Georgia by 20 years. Blake

A. Watson, The Curious Case of Disappearing Federal Jurisdiction

Over Federal Enforcement of Federal Law, 80 Marg. L. Rev. 531,

549 n.88 (1997). See Chervkee Nation v, Georgia, 30 U.S. (5 Pet.)

1, 6 (1831) (describing Cherokee government institutions, includ-

ing “a code of laws, civil and criminal” and “courts to expound

and apply those laws.”) For the most part, however, the tribes

relied on informal means to enforce their societal norms, such as

mediation by tribe leaders, tribal meetings to develop a consensus,

peer pressure and ostracism. See Oliphant v. Suquamish Indian

Tribe, 485 U.S. 191, 197 (1978) (disputes usually “handled by

social and religious pressure and not by formal judicial processes’’) ;

Ving Devoriu, Jr. & Cuirrorp M. LYTLE, AMERICAN INDIANS,

AMERICAN JUSTICE, 111-13 (1983) (hereafter “DeLoria & Lytie”) ;

Fredric Brandfon, Comment, Tradition and Judicial Review in the

American Indian Tribal Court System, 838 UCLA L. Rev. 991, 994-

97 (1991); Blake A. Watson, supra, 80 Marg. L. Rev. at 547-49.

i i i i

18

The courts have jurisdiction over civil actions against In-

dians arising in Indian country; jurisdiction lies against

non-Indians only by consent. 25 C.F.R. § 11.103 (1998).

In 1934, Congress passed the Indian Reorganization

Act, 48 Stat. 984, which was intended to encourage In-

dian self-governance and provided for the adoption of

tribal constitutions and by-laws. 25 U.S.C. § 476. Since

then, many tribes have developed their own judicial sys-

tems in place of the old CIO/CFR courts. The number

of tribal courts has grown rapidly in recent years.’ It is

important to keep in mind, however, that the mining

activities at issue in this case took place in the 1950s and

1960s. The legal landscape was different then. The

CIO/CFR courts were dominant. It is doubtful that the

mining companies had any reason to believe that they

were subjecting themselves to tribal court jurisdiction by

undertaking the uranium mining activities that gave rise

to these claims 30-40 years later. As noted above, the

CIO/CFR courts could assert jurisdiction over non-Indians

only by consent. Similarly, a leading treatise stated the

general rule to be that, for accidents occurring on the

reservation, “tribal court jurisdiction in civil cases is in-

voked only when the defendant is a member of the tribe”

in the absence of a contrary “stipulation by the parties.”

Devoria & LyTLe 210 (emphasis in original). Professor

(now Judge) Canby stated flatly that in a reservation-

based civil case, if “the Indian wishes to sue the non-

Indian in a tribal court, he cannot do it.” William C.

Canby, Jr., Civil Jurisdiction and the Indian Reservation,

1973 Utan L. Rev. 206, 220. In addition, it appears

that the Navajo Tribal Courts did not begin asserting

general civil jurisdiction over nonmembers as defendants

until the Tribal Code was amended in 1980. See UNC

Resources, Inc. v. Benally, 518 F. Supp. 1046, 1049 &

12 See Gloria Valencia-Weber, Tribal Courts: Custom and In-

novative Law, 24 N.M.L. Rev. 225, 232-88 & n.23 (1994) (describ-

ing rapid growth of tribal court system from 1978 to 1993).

19

nn.6-7 (D. Ariz. 1981).1* Under these circumstances, it

would disrupt settled expectations to require mining com-

panies like the petitioners to defend in tribal court.

The implications of the Ninth Circuit's decision are

equally disturbing in today’s legal landscape. There are

now more than 150 different tribal courts in operation,

as well as 13 remaining CIO/CiR courts.“ ‘The tribal

court. systems vary widely in structure, procedure and

philosophy. Some tribes, such as the Pueblos and Alaskan

native villages, follow traditional procedures in which a

tribal leader resolves disputes informally according to

customary laws.” Other tribes, such as the Navajo, have

a well-established court system with a large case load.

See Gloria Valencia-Weber, supra n.12, at 233 n.22.%

13 The only exception before that amendment was apparently a

narrow one based on a Navajo Tribal Council resolution allowing

jurisdiction over forcible entry and detainer actions. See William

C. Canby, supra, at 223. That exception was not established until

1972, after the mining activities at issue here had been terminated.

Id.

14 See 25 C.F.R. §11.100(a) (1998) (listing CIO courts); Bu-

REAU OF INDIAN AFFAIRS, NATIVE AMERICAN TRIBAL CouRT PROFILES

(1985) (hereafter “TrimaL Court Prorices”); B.J. Jones, Welcom-

ing Tribal Courts into the Judicial Fraternity, 24 Wm. MITCHELL

L. Rev. 457, 475-76 (1998).

15 See TRIBAL COURT PROFILES 71, 77, 79, 82, 84, 88, 90, 91, 95;

DeLorta & LYTLE 112-13 (describing traditional court system) ;

Robert D. Cooter & Wolfgang Fikentscher, Indian Common Law:

The Role of Custom in American Indian Tribal Courts, 48 Am. J.

Comp. L. 287, 301-02 & n.52 (1998) (describing various types of

Pueblo courts); Melissa L. Koehn, Civil Jurisdiction: The Bound-

aries Between Federal and Tribal Courts, 29 Ariz. St. L.J. 705,

712 (1997) (discussing secrecy of the traditional Iroquois and

Pueblo dispute resolution process); Carey N. Vicenti, The Re-

emergence of Tribal Society and Traditional Justice Systems, 79

JUDICATURE 134, 189-41 (1995) (describing evolution of tribal court

processes).

16 For a discussion by the Navajo Chief Justice of Navajo judi-

cial philosophy and traditional methods of adjudication, see James

20

Most courts fall somewhere in between the extremes. See

generally Michael Taylor, Modern Practice in the Indian

Courts, 10 U. PuGet Sounp L. REv. 231 (1987).

The Ninth Circuit’s decision suggests that any of the

170 tribal courts is entitled to decide for itself whether

it has jurisdiction to hear Price-Anderson claims in the

event of a nuclear incident, and then to decide those

claims on the merits if it concludes that it has jurisdiction.

The Ninth Circuit’s analysis is generally applicable and

could be cited as a basis for jurisdiction in any tribal

court, no matter how well-equipped to handle complex,

technical cases.’ It is also possible that several different

tribal courts would have jurisdiction over claims arising

out of the same nuclear incident. For example, the Palo

Verde nuclear plant in Arizona and the San Onofre

nuclear plant in Southern California are surrounded by

different tribes. In the event of a nuclear incident. two

or more tribal courts might assert jurisdiction over claims

arising out of the incident.* There would be no method

for transferring or consolidating the cases in a single

forum—a problem that could be easily solved in the fed-

eral courts under 42 U.S.C. §$ 2210(n)(2), or even under

the general federal statutes. See 28 USC. $§ 1404,

W. Zion & Robert Yazzie, Indigenous Law in North America in

the Wake of Conquest, 20 B.C. INT’L & Comp. L. Rev. 55 (1997).

17 See Laurie Reynolds, Adjudication in Indian Country: The

Confusing Parameters of State, Federal, and Tribal Jurisdiction,

38 WM. & Mary L. Rev. 539, 568-89 ( 1997) (describing variation

in tribal courts and suitability for adjudication). There is a wide

variety in the tribal courts’ resources and sophistication, and in

the legal training of the tribal judges. See Tria Court PROFILES ;

Gloria Valencia-Weber, supra n.12, at 240-41. The Navajo tribal

court judges, for example, are not required to have any formal

education beyond high school. See 7 Navajo Nation Code § 354(c).

18 The surrounding tribes presumably would argue that their

courts have jurisdiction because the incident had a “direct effect”

on the “economic security . . . health [and] welfare of the tribe.”

Montana v. United States, 450 U.S. 544, 566 (1981).

21

1407. Allowing multiple claims to go forward in differ-

ent tribal courts would result in delay, increased costs and

the real possibility of inconsistent results. This would

clearly undermine the congressional policy of ensuring

that all liability arising out of a nuclear incident can be

determined quickly and efficiently in one case by a single

decision-maker.

If the Ninth Circuit is correct, those allegedly responsi-

ble for a nuclear incident would be forced to defend

Price-Anderson claims in each tribal court where they

are sued. The defendant might attempt to remove the

cases from the tribal courts to federal court, but that

strategy is likely to fail. The general removal statute on

its face applies only to civil actions “brought in a State

court.” 28 U.S.C. §1441(a). The courts that have

considered the matter have generally held that the statute

means what it says and that a tribal court is not a “State

court.” For example, in Becenti vy. Vigil, 902 F.2d 777,

780-81 (10th Cir. 1990), the Tenth Circuit held that

removal was improper, observing that “Congress has not

yet seen fit to incorporate tribal court actions such as

the one involved here in its grant of removal jurisdiction

to the federal district courts.” The Price-Anderson re-

With no means of removing the cases to federal court,

the defendants would be forced to defend in the tribal

courts. There is no guarantee that the tribal courts all

19 Accord Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1505 (10th

Cir. 1997), cert. denied, 118 8. Ct. 880 (1998) ; DeCoteau v. Sentry

Ins. Co., 915 F. Supp. 155 (D.N.D. 1996) ; Weso v. Menominee In-

dian School Dist., 915 F. Supp. 73 (E.D. Wis. 1995). But see United

States v. Tsosie, 92 F.3d 1037, 1040 (10th Cir. 1996), in which the

case apparently had been removed from tribal court without objec-

tion. The propriety of removal was not discussed.

22

would interpret and apply the Price-Anderson Act in the

same manner. Indeed, there is no guarantee that the courts

would even attempt to apply federal law to the Price-

Anderson claims. Tribal-court legal systems do not in-

variably give precedence to federal law. For example,

section 2-111 of the Code of the Winnebago Tribe speci-

fies the hierarchy of laws to be applied in civil actions:

1. In all civil actions the tribal court shall apply:

A. The constitution, statutes and common law

of the tribe not prohibited by applicable fed-

eral law, and if none, then

B. The federal law, including federal common

law, and if none, then

C. The laws of any state or other jurisdiction

which the courts find to be compatible with

the public policy and needs of the tribe.

2. No federal or state law shall be applied to a

civil action pursuant to paragraphs (B) and (C)

of subsection (1) of this section if such law is

inconsistent with the laws of the tribe or the

public policy of the tribe.

See Nell Jessup Newton, Tribal Court Praxis: One Year

in the Life of Twenty Indian Tribal Courts, 22 Am. IN-

DIAN L. Rev. 285, 301 (1998) (quoting and discussing

§ 2-111). A Winnebago tribal court hearing claims aris-

ing out of a nuclear incident could conclude, relying on

section 2-111, that tribal law takes precedence over fed-

eral cases interpreting the Price-Anderson Act, or even

over the provisions of the Act itself.

The Colville Tribe likewise treats its laws as having

supremacy over federal law. Section 4.1.11 of the Colville

Tribal Code provides: “In all cases the court shall apply,

in the following order of priority unless superseded by a

specific section of the Law and Order Code, any applicable

laws of the Colville Confederated Tribes, tribal case law,

23

state common law, federal statutes, federal common law

and international law.” See Michael Taylor, supra, 10 U.

PuGET Sounp L. Rev. at 241 n.45 (quoting § 4.1.11).

The Sitka tribal courts apply the codes of the Tribe,

supplemented by the tribe’s customary law. The courts

are permitted to refer to federal and state law for “guid-

ance.” See GloriaValencia-Weber, supra n.12, at 253.2

These examples simply illustrate that the tribal courts

are not likely to apply federal regulatory schemes with

the same fidelity and consistency as the federal courts.

This is understandable, as each tribe enjoys many of the

attributes of an independent, sovereign nation. And the

tribal courts undoubtedly have unique competence in

applying tribal law to cases within their jurisdiction. But

Price-Anderson requires application of federal law, which

in turn borrows state law for some issues. The tribal

courts have no traditional role or special expertise in

applying federal and state law. In implementing a fed-

eral statute such as Price-Anderson, it is critical to have

predictable, uniform enforcement subject to ultimate re-

view in this Court. Long ago, the Court recognized that

in order to achieve “uniformity of decisions throughout

20 See also Judith Resnik, Dependent Sovereigns: Indian Tribes,

States, and the Federal Courts, 56 U. Cui. L. Rev. 671, 733 (1989)

(“tribal courts may not always follow federal law.”), Another

potential problem with tribal court adjudication is that the court’s

judgment may not be given full faith and credit in state and fed-

eral courts. See 28 U.S.C. § 1788 (full faith and credit due to courts

of any “State, Territory or Possession”); Wilson v. Marchington,

127 F.3d 805 (9th Cir. 1997) (tribal court judgments not entitled

to full faith and credit; enforceable only as a matter of comity),

cert. denied, 118 S. Ct. 1516 (1998); Robert N. Clinton, Tribal

Courts and the Federal Union, 26 WILLAMETTE L. REV. 841, 897-921

(1990) (discussing applicability of full faith and credit to tribal

court judgments) ; Robert Laurence, Full Faith and Credit in Tribal

Courts, 28 N.M.L. Rev. 19 (1998) (same). Nationwide enforce-

ability of a judgment is particularly important in implementing a

broad federal scheme like the Price-Anderson Act.

24

the whole United States” on questions of federal law,

lower courts must be subject to the control of a single

“revising authority” empowered to control any “jarring

and discordant judgments, and harmonize them into uni-

formity.” Hunter's Lessee, 14 U.S. (1 Wheat.) at 347-48.

The decision below is at odds with these principles

in that it divests the federal courts of jurisdiction over

claims arising out of a federal statute that preempts the

field it occupies. Worse yet, the Ninth Circuit's decision

vests jurisdiction in a court system from which there may

be no effective recourse. If this case had been filed in

state court, petitioners could have ensured a federal

forum by removal at the outset of the case or by a

certiorari petition to this Court at the conclusion of the

state-court proceedings. When a case is filed in tribal

court, however, there is no comparable right of recourse

to the federal court system. Cases cannot be removed

from a tribal court, as discussed above. And there is

substantial doubt as to whether tribal-court decisions may

be reviewed on the merits in federal court. The federal

courts are clearly authorized to review tribal-court deci-

sions determining the jurisdiction of the tribal courts. See,

e.g., Mustang Prod. Co. v. Harrison, 94 F.3d 1382 (10th

Cir. 1996), cert. denied, 117 S. Ct. 1288 (1997); FMC y,

Shoshone-Bannock Tribes, 905 F.2d 1311 (9th Cir. 1990).

In some cases, the jurisdictional determination is closely

related to the merits. See, e.g., Enlow v. Moore, 134

F.3d 993 (10th Cir. 1998) (location of boundary line

resolved both jurisdiction and merits). But in principle,

the federal courts appear to be limiting their review to the

tribal court’s jurisdictional determination. See Enlow, 134

F.3d at 995 n.3.

If the tribal court does have jurisdiction, there is no

obvious means by which its decision could be “appealed”

or reviewed on the merits in federal court. This Court has

Mutual Ins. Co. v. LaPlante, 480 US. 9, 19 (1987).

See also Santa Clara Pueblo y. Martinez, 436 U.S. 49,

65-66 (1978) (implicitly recognizing the absence of any

general right to appeal tribal-court decisions to federal

courts). There is no apparent Statutory basis on which

federal courts could review the merits of tribal-court deci-

sions. See Duncan Energy Co. v. Three Affiliated Tribes,

27 F.3d 1294, 1302 (8th Cir. 1994) (Loken, J., con-

curring); LaBeau v. Dakota, 815 F. Supp. 1074, 1076

(W.D. Mich. 1993). Nor would such review lie within

this Court's certiorari jurisdiction. See 28 U.S.C. § 1257.

It could be argued that federal courts have the inherent

right to review any tribal-court decision construing a

federal statute or deciding a federal question. Cf. Arizona

Public Serv. Co. v. Aspaas, 77 F.3d 1128, 1134 (9th Cir.

1995) (federal courts are “the final arbiters of federal

law”). But that principle has yet to be clearly estab-

lished. Thus, a tribal court decision

25 U.S.C. § 8601 et seq., Congress considered but rejected a provi.

sion in the Senate bill that would have required a study of tribal

jurisdiction over federal laws. The Conference Committee con-

any examination of the posssibility of Federal court

of tribal court decisions” would be premature at that time.

H. Conv. Rep. No. 103-888, at ny reprinted in 1998 U.S.C.C_A.N.

oranko,

also 4

Remedies Lower Courts After National Farmers Union and

reviewability of tribal-court decisions): Laurie Reynolds, “Juris.

diction” in Federal Indian Law, 27 N.M.L. REV. 359, 388-86 (1997)

i

:

8

:

26

Amicus does not mean to suggest that the tribal courts

are generally incompetent or unreliable. On the contrary,

they perform an important function that has been

recognized by Congress and the Executive Branch.” But

the proper role of the tribal courts does not extend to

federal legislative schemes of national significance, espe-

cially where Congress intended to guarantee a federal

forum to adjudicate all claims. Interpreting and applying

federal statutes is the primary business of the federal

courts. Indian tribal courts can claim no special interest

Or expertise in administering Price-Anderson or other

comparable federal statutes. Nor is jurisdiction over

Price-Anderson claims “necessary to protect tribal self-

government or to control internal relations.” Strate, 117

S. Ct. at 1416 (quoting Montana, 450 U.S. at 564). The

importance of assuring a federal forum for Price-Anderson

claims outweighs whatever benefit may be derived from

allowing the tribal courts to adjudicate those claims.

The Ninth Circuit's decision in this case is at odds with

the congressional purpose of assuring a federal forum to

resolve all claims arising out of a nuclear incident. The

decision is particularly troublesome because it sets a prece-

dent that is not necessarily limited to Price-Anderson and

could be applied to other federal statutes. For example,

the Racketeer Influenced and Corrupt Organizations Act,

18 U.S.C. § 1961 et seq. (“RICO”), is like Price-Anderson

in that it establishes an elaborate federal remedial scheme

enforceable in either state or federal court. See Tafflin v.

22 See generally Janet Reno, A Federal Commitment to Tribal

Justice Systems, 79 JUDICATURE 113 (1995).

27

Levitt, 493 U.S. 455 (1990). Tribal members claiming

to be the victims of racketeering activities by nonmembers

might attempt to bring a RICO case against the nonmem-

bers in tribal court. Under the Ninth Circuit's rationale,

the tribal court would have jurisdiction to adjudicate the

RICO claims. The defendant would have no right to

remove, and it would be difficult or impossible to obtain

federal court review of the merits of the final judgment.

Other federal statutes could be cited as additional ex-

amples of the mischief that the Ninth Circuit's decision

24 The state courts have been found to have concurrent jurisdic-

tion to hear claims under many different federal statutes. See, ¢.g.,

Yellow Freight Systems, Inc. v. Donnelly, 494 U.S. 820 (1990)

(Title VII of the Civil Rights Act of 1964); Maine v. Thiboutot,

448 U.S. 1 (1980) (civil rights actions under 42 U.S.C. § 1983) ;

Hapgood v. City of Warren, 127 F.3d 490, 494 (6th Cir. 1997)

(Americans with Disabilities Act); Aquatherm Indus., Inc. v.

Florida Power & Light Co., 84 F.3d 1388, 1394 (11th Cir. 1996 )

(Lanham Act); Lane v. Central Bank of Alabama, N.A., 756 F.2d

814 (11th Cir. 1985) (Bank Holding Company Act). See generally

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981)

(state courts presumed to enjoy concurrent jurisdiction over federal

statutes).

28

CONCLUSION

The judgment of the Ninth Circuit should be reversed.

Of Counsel:

HAROLD P. QUINN, JR.

KATIE SWEENEY

NATIONAL MINING

ASSOCIATION

1130 17th Street, N.W.

Washington, D.C. 20036

December 8, 1998

Respectfully submitted,

JAMES B. HAMLIN

(Counsel of Record)

ANTHONY J. THOMPSON

EDWARD C. SCHWEITZER, JR.

SHAW PITTMAN Potts

& TROWBRIDGE

2300 N Street, N.W.

Washington, D.C. 20087

(202) 663-8000

Attorneys for Amicus Curiae