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

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No. 98-6 DEC 8 06

IN THE ames

Supreme Court of the United States

OCTOBER TERM, 1998

Ext Paso NATURAL GAs COMPANY,

Cyprus Foote MINERAL COMPANY,

AND CypRuUS AMAX MINERALS COMPANY,

7. Petitioners,

LAURA NEZTSOSIE; ARLINDA NEZTSOSIE; AND ZONNIE

MARIE DANDY RICHARDS, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF HAROLD J.

RICHARDS, SR., Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE s

ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF PETITIONERS

Of Counsel: BETTY JO CHRISTIAN

Louis WARCHOT Counsel of Record

DANIEL SAPHIRE CHARLES G. COLE

ASSOCIATION OF AMERICAN Sara E. HAUPTFUEHRER

RAILROADS STEPTOE & JOHNSON LLP

50 F Street, N.W. 1330 Connecticut Avenue, N.W.

Washington, D.C. 20001 Washington, D.C. 20036

(202) 639-2500 (202) 429-8113

Counsel for Amicus Curiae

Association of American

Railroads

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

;

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

Into

Interests...

A. Exhaustion Analysis Properly Takes

Account Countervailing Federal

B. The Ninth Circuit’s Strict View of the Ex-

haustion Doctrine Is Not Supported by This

I. EXHAUSTION OF TRIBAL REMEDIES IS

NOT AN UNYIELDING REQUIREMENT...

TABLE OF AUTHORITIES

CASES Page

Burlington Northern R.R. v. Crow Tribal Council,

940 F.2d 1289 (9th Cir. 1991) -....................----- 4,8

Burlington Northern R.R. v. Minnesota, 882 F.2d

SR fe S) | 22

Burlington Northern R.R. v. Montana, 880 F.2d

Rt Ce | 22

Burlington Northern R.R. v. Oklahoma Taz

Comm’n, 481 U.S. 454 (1987) ....--.....-....-----c0000-++ 2

Burlington Northern R.R. v. Red Wolf, 106 F.3d

868 (9th Cir. 1996), cert. granted & decision

vacated, 118 S. Ct. 37 (1997) 22.22.22... neneeeee 3

California Fed. Savs. & Loan Ass’n v. Guerra, 479

if Be, Se ee 18

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264

COTA ) ccnenccnicrrnminitstistitinetenaiitiniisiaieeaa 9

Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800 (1976) —...-200...--.-- 5, 8-10 +

County of Allegheny v. Frank Mashuda Co., 360

8 SF) a ee eS 9

Department of Revenue of Oregon v. ACF Indus-

tries, Inc., 510 U.S. 382 (1994) ..................-........ 3-4

Hines v. Davidowitz, 312 U.S. 52 (1941) .............. 22

In re TMI Litigation Cases Consolidated II, 940

F.2d 882 (3d Cir. 1991) ~.. 2

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

+ CREO a passim

Kerr-McGee Corp. v. Farley, 115 F.8d 1498 (10th

Cir. 1997), cert. denied, 118 S. Ct. 880 (1998)... 8

Massachusetts Mutual Life Ins. Co. v. Russell, 473

U.S. 184 (1985) 17

McCarthy v. Madigan, 503 U.S. 140 (1992) ._....... 1l

Missouri Pac. R.R. v. Railroad Comm’n of Tezas,

850 F.2d 264 (5th Cir. 1988) 22

Montana v. United States, 450 U.S. 544 (1981) ..6, 14-15,

16-17

Moses H. Cone Memorial Hosp. Co. v. Mercury

Constr. Co., 460 U.S. 1 (1983) 9

fii

TARLE OF AUTHORITIES—Continued

National Farmers Union Ins. Cos. v. Crow Tribe, a

a ca i passim

Nieman v. NLO, Inc., 108 F.8d 1546 (6th Cir.

EE ARS PTT UPS et ee 2

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

I <I i 2

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

EEE EE ey ae 18

Pacific Gas & Electric Co. v. State Energy Re-

sources Conservation & Development Comm'n,

a 18

Pennsylvania R.R. v. Public Service Comm'n, 250

I 18

Pilot Life Ins. Co. v. Dedeaur, 481 U.S. 41

8 ES EN ee a 17

Ray v. Atlantic Richfield Co., 485 U.S. 151

EEE EE ie ae Re ae 21-22

Reservation Tel. Coop. v. Three Affiliated Tribes

of the Fort Berthold Reservation, 76 F.3d 181

ae ASE ee 8

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

ERE LEER Sa a ee 18

Schneidewind v. ANR Pipeline Co., 485 U.S. 293

Et SS a 21

South Dakota v. Bourland, 508 U.S. 679 (1993) .. 6,17

Strate v. A-1 Contractors, 520 U.S. 488 (1997) .. _passim

United States v. Wheeler, 435 U.S. 813 (1978)... 16

Western Air Lines, Inc. v. Board of Equalization

of South Dakota, 480 U.S. 128 (1987) 4

STATUTES

Zz 13-14

42 U.S.C. §2210(n) (2)... 2

he aRnasenee ae meenemnaaan 4, 22

tna ene cnrmnammmaaan a

49 U.S.C. §§ 20101-20153 ___ "a 22

8 NE RRR Na RermeneD 5

RR 4

TABLE OF AUTHORITIES—Continued

CODE OF FEDERAL REGULATIONS

ee nee

eee

nO Oe

49 C.F.R..§§ 240.1-411 _....................... -

MISCELLANEOUS

Bernard Schwartz, ADMINISTRATIVE LAW 542 (3d

— 8 FR Stas sebiatetantes

Black’s Law Dictionary 266 (5th ed. 1998) ............

Laurie Reynolds, Exhaustion of Tribal Remedies:

Extolling Tribal Sovereignty While Expanding

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

RC SI ES SON eS

RESTATEMENT (THIRD) OF FOREIGN RELATIONS

LAW OF THE UNITED STATES §§101, 403(3)

ee a A eee

Page

~~ > >

IN THE

Supreme Court of the United States

OcToBER TERM, 1998

No. 98-6

Ex Paso NaTURAL Gas COMPANY,

Cyprus Foote MINERAL COMPANY,

AND Cyprus AMAX MINERALS COMPANY,

. Petitioners,

LAURA NEZTSOSIE; ARLINDA NEZTSOSIE; AND ZONNIE

Marig DANDY RICHARDS, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF HAaAROoLp J.

RICHARDS, SR.., Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE 1

percent of the line haulage, employ 91 percent of the

workers, and produce approximately 93 percent of the

freight revenues of all railroads in the United States.

AAR represents its member railroads before courts,

agencies, and the Congress in matters of common concern.

It has previously filed amicus curiae briefs in cases before

this Court that present issues of substantial importance

to its members.* In the 1997 Term, AAR urged this Court

to accept for review a petition presenting one of the issues

presented by this case.*

The Petitioners here, successors to operators of uranium

mines located on the Navajo Reservation, were sued in

tribal court by members of the Navajo Nation alleging

injury caused by exposure to radioactive wastes. The

Atomic Energy Act, as amended, broadly regulates the

field of nuclear power.* The Act also creates a federal

cause of action and gives defendants the absolute right

to have such claims adjudicated in federal court by man-

dating removal from state court at the defendant’s request.

42 U.S.C. §2210(n)(2). Despite these features of the

statutory scheme, the Ninth Circuit ordered Petitioners to

exhaust tribal remedies before challenging tribal jurisdic-

tion in federal court on the ground of federal preemption.

2 See Burlington Northern R.R. v. Blackfeet Tribe of the Black-

feet Indian Reservation, No. 91-545 (filed Nov. 1, 1991); Southern

Pacific Transportation Co. v. Jose Hernandez, No. 91-293 (filed

Sept. 18, 1991); Transportes Aeros Mercantiles Pan Americanos,

S.A. v. International Association of Machinists & Aerospace Work-

ers, No. 91-02 (filed Aug. 30, 1991); Norfolk & Western Ry. v.

Olen Roberson, No. 90-1271 (filed Apr. 19, 1991); Burlington

Northern R.R. v. Oklahoma Tax Comm'n, 481 U.S. 454 (1987).

3 See Brief Amicus Curiae of the Association of American Rail-

roads in Support of the Petition, Kerr-McGee Corp. v. Farley, No.

97-705 (filed Dec. 22, 1997).

4 See, e.g., Nieman v. NLO, Inc., 108 F.3d 1546, 1553 (6th Cir.

1997) ; O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1099

(7th Cir. 1994); In re TMI Litigation Cases Consolidated I], 940

F.2d 832, 854 (3d Cir. 1991).

AAR has a strong interest ,in

case because -the

Ninth Circuit's decision, ee ae dispute in-

implications for “the

volving nuclear power, has serious

pat i s rajlroads. That decision applies the doctrine of

tion of tribal remedies inflexibly, ,requiting resort

to tribal courts even when the controlling issue is whether

burdensome and needless litigation in the tribal courts.

Fe SS ee ae Se ee

the possibility. ‘indeed in many cases the likelihood, that

the entire proceeding may ultimately found void by

a federal court. And it runs the risk of a huge verdict

at the ‘hands of a jury composed solely of tribal members.

See, e.g., Burlington Northern Railroad v. Red Wolf, 106

arising from grade crossing accident), cert. granted &

Piers Rapin a 118 S. Ct. 37 (1997). It is little con-

solation to those who |have suffered these costs that the

tribal court judgment may ultimately be set aside as void

5 As this Court noted in Department of Revenue of Oregon v.

ACF Industries, Inc., 510 U.S. 332, 386 (1994), railroads “ ‘are

Pursuant to federal rights of way, one or more railroads

cross the lands of at least 55 reservations in 16 states.

This century-old configuration is not likely to change,

since a large number of rights of way carry main rail

lines that cannot be abandoned.

AAR members have already seen a number of attempts

by tribes to engage in improper regulation of their opera-

tions on reservation lands. For example, Burlington

Northern R.R. v. Crow Tribal Council, 940 F.2d 1239

(9th Cir. 1991), dealt with a Crow Tribal Common Car-

rier Ordinance adopted in 1982 which estabilshed “general

duties” of “railroad lines” operating on the tribe’s reser-

vation. It authorized tribal regulation of health and

safety, service and facilities, and abandonment, all of

which are addressed by federal regulatory law.® Id. at

1241. In 1996, the Bad River Band of the Lake Superior

Tribe of Chippewa Indians enacted a “Railroad Safety

Ordinance.” This ordinance purported to regulate, among

other things, the track to be used on reservation lands

and the “qualifications” of railroad personnel on trains

crossing the reservation, notwithstanding that the Federal

Railway Safety Act (“FRSA”) and regulations promul-

gated thereunder regulate track safety and operation’

and the “licensing or certification” of locomotive en-

gineers.®

easy prey for State and local tax assessors’ in that they are ‘non-

voting, often nonresident, targets for local taxation,’ who cannot

easily remove themselves from the locality.” (Quoting Western

Air Lines, Inc. v. Board of Equalization of South Dakota, 480 U.S.

123, 131 (1987).).

6 See 49 U.S.C. § 20142 (safety); § 10501(b)(1) (service and

facilities) ; § 10903 (abandonment).

7 See 49 U.S.C. § 20142; 49 C.F.R. §§ 213.31-.37 (track roadbeds),

213.51-.63 (track geometry), 213.101-.143 (track structure).

8 See 49 C.F.R. §§ 240.1-.411 (1997).

These examples of tribal efforts to te railroads

se sca a degra lag tommy Mer the railroad

industry. Tribal regulation—like state and gee Msgr

consequent limitations on tribal jurisdiction.

SUMMARY OF ARGUMENT

The Ninth Circuit held that a federal court presented

with a challenge to tribal court jurisdiction may consider

in the first instance claims of federal preemption only

where a federal statute expressly forbids tribal court juris-

diction. In reaching that result, the court failed to accord

any weight to countervailing interests favoring the im-

mediate exercise of jurisdiction by the federal courts with

respect to issues of federal preemption.

This mechanical approach ignores the underpinnings

of the tribal exhaustion doctrine. Exhaustion, this Court

explained in Jowa Mutual Ins. Co. v. LaPlante, 480 U.S.

9 (1987), is based on comity, and is “analogous to prin-

ciples of abstention articulated in Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800 (1976).”

480 U.S. at 16 n.8. Flexibility is a defining characteristic

of Colorado River abstention and comity analysis. These

doctrines permit courts to weigh the interest in having a

federal court render a prompt decision on an issue of

federal law, such as preemption by a comprehensive regu-

latory scheme. They also permit courts to consider the

interest in avoiding piecemeal litigation, so that the parties

are not forced to shuttle from court to court in order to

get a definitive answer. This Court’s prior decisions do

not preclude a federal court from initially addressing pre-

emption by a federal regulatory statute.

9 49 U.S.C. § 20106.

Issues of preemption—whether express or implied—

may have a direct impact on the scope of tribal court

jurisdiction. In Strate v. A-] Contractors, 520 US. 438

(1997), this Court reiterated that, as a “general proposi-

tion,” the inherent sovereignty of the Indian tribes does

not “extend to the activities of nonmembers of the tribe.”

520 US. at 445-46; accord Montana v. United States,

450 U.S. 544, 565 (1981). Rather, such powers lie only

to the extent they have bcen affirmatively granted by Con-

gress.1° Since tribal adjudicatory jurisdiction reaches no

further than its regulatory jurisdiction, Strate, 520 U.S.

at 453, tribal court jurisdiction does not extend to matters

over which the tribe Jacks regulatory power as .a result

of federal preemption.

‘Federal preemption may be implied as well as express.

In either case, there are sound reasons to permit a federal

court to consider such claims. For example, in Strate,

this Court unanimously directed federal courts to con-

sider claims that tribal courts lacked jurisdiction with re-

spect to incidents occurring on rights of way granted by

federal statute. In that instance, there is no express pro-

hibition on tribal court jurisdiction, but the relevant ques-

tions of statutory interpretation can be readily addressed

by the federal courts. Thus, the Court concluded that

“the otherwise applicable exhaustion requirement .. .

must give way, for it would serve no purpose other than

delay.” 520 U.S. at 459 .n.14.

The policies on which this Court’s exhaustion prece-

dents rest—the benefits of permitting tribal courts to

10 See Strate, 520 U.S. at 4465 (“LA)bsent express authorization

by federal statute or treaty, tribal jurisdiction over the conduct

of nonmembers exists only in limited circumstances.”); Montana,

450 U:S. at 564 (tribal jurisdiction over nonmembers “cannot sur-

vive without express congressional delegation”); South Dakota v.

Bourland, 508 U.S. 679, 695 n.15 (1993) (argument that ‘tribes may

exercise jurisdiction over nonmembers “shuts both eyes to the

reality that after Montana, tribal sovereignty over nonmembers

‘cannot survive without express congressional delegation’ ”).

interpretation of tribal law. Yet litigants required to try

and appeal such cases in the tribal court system will be

forced to incur unnecessary regulatory and litigation costs,

as well as delay, before obtaining an authoritative reso-

lution in federal court. ;

The interpretation of this Court’s precedents adopted

by the Ninth Circuit and other courts over the last decade

is misguided. It has resulted in an overt refusal to con-

sider, let alone properly balance, the substantial counter-

vailing federal interests inherent in federal regulation of

specific industries. This Court should hold that the federal

courts must address issues of federal preetmption without

requiring that tribal remedies first be exhausted.

ARGUMENT

IL EXHAUSTION OF TRIBAL REMEDIES IS NOT AN

UNYIELDING REQUIREMENT

In the decision below, the Ninth Circuit insisted that

exhaustion was required in the absence of an express

jurisdictional prohibition in a federal statute or treaty.

“Price-Anderson,” the court found, “contains no such

express prohibition of tribal court jurisdiction.” Pet. App.

at 13a. The court of appeals then ordered exhaustion of

tribal remedies without even considering the countervail-

ing federal interests in bringing order and uniformity to

the area of nuclear torts. See Pet. App. at 17a-19a. In

another recent case involving the same regulatory scheme,

the Tenth Circuit, having similarly failed to find an ex-

press prohibition of tribal jurisdiction, refused to take

such federal interests into account. The Tenth Circuit

stated affirmatively that the “National Farmers framework

does not accord countervailing federal concerns a place

in the comity analysis.” Kerr-McGee Corp. v. Farley,

115 F.3d 1498, 1508 (10th Cir. 1997), cert. denied,

118 S. Ct. 880 (1998)." This mechanistic approach to

exhaustion analysis lacks support in either the genesis of

the exhaustion doctrine or this Court’s precedents.

A. Exhaustion Analysis Properly Takes Into Account

Countervailing Federal Interests

The doctrine of exhaustion of tribal remedies, as articu-

lated by this Court in National Farmers Union Ins. Cos.

v. Crow Tribe, 471 U.S. 845 (1985), and lowa Mutual

Ins. Co. v. LaPlante, 480 U.S. 9 (1987), owes its origins

to preexisting prudential concerns that have traditionally

guided the federal courts in exercising their jurisdiction.

As the Court explained in Jowa Mutual, “Exhaustion is

required as a matter of comity, not as a jurisdictional

prerequisite. In this respect, the rule is analogous to

principles of abstention articulated in Colorado River

Water Conservation Dist. v. United States, 424 U.S. 800

(1976).” 480 US. at 16 n.8.

Colorado River abstention is a flexible concept requir-

ing a balancing of interests. It allocates responsibility for

initial adjudication on the basis of both the expertise and

role of a particular court system and an overall interest

in efficiency. In Colorado River, the Court began with

the premise that “[a]bstention from the exercise of federal

jurisdiction is the exception, not the rule.” Colorado

11 Other courts have also required exhaustion of tribal remedies

even when a federal regulatory scheme strongly implies that fed-

eral jurisdiction is exclusive. See, e.g., Reservation Tel. Coop. v.

Three Affiliated Tribes of the Fort Berthold Reservation, 76 F.3d

181, 185-86 (8th Cir. 1996) (exhaustion mandatory because federal

statute apparently preempting tribal tax on telephone lines on res-

ervation did not expressly divest tribal court of jurisdiction) ;

Burlington Northern R.R. v. Crow Tribal Council, 940 F.2d 1239,

1245 (9th Cir. 1991) (“exhaustion of tribal remedies is not dis-

cretionary ; it is mandatory”).

River, 424 U.S. at 813. In light of the “virtually unflag-

ging obligation of the federal courts to exercise the juris-

diction given them,” id. at 817, “[a]bdication of the obli-

gation to decide cases can be justified under this doctrine

only in the exceptional circumstances where the order to

the parties to repair to the State court would clearly serve

an important countervailing interest.” Jd. at 813 (quot-

ing County of Allegheny v. Frank Mashuda Co., 360

U.S. 185, 188-89 (1959)); see also Cohens v. Virginia,

19 U.S. (6 Wheat.) 264, 404 (1921) (“We have no

more right to decline the exercise of jurisdiction which is

given, than to usurp that which is not given. The one or

the other would be treason to the constitution.”).

The Court then identified some of the specific circum-

stances in which abstention had been viewed as appro-

priate, such as where “a federal constitutional issue might

be mooted or presented in a different posture by a state

court determination of pertinent state law,” or where a

case presented “difficult questions of state law bearing on

policy problems of substantial public import.” 424 US.

at 814. The Court recognized that abstention might also

be appropriate when justified by “consideration of ‘[w]ise

judicial administration giving regard to conservation of

judicial resources and comprehensive disposition of litiga-

tion.”” Jd. at 817 (citation omitted). This kind of ab-

stention comes into play only when duplicative actions,

involving the same parties and the same issues, are pend-

ing in the federal and state systems.

A number of factors guide application of Colorado

River abstention, including the importance of avoiding

piecemeal litigation, whether the merits of the dispute

turn on the resolution of a federal question, and the

adequacy of the fora to protect the parties’ rights. Id. at

818; Moses H. Cone Memorial Hosp. Co. v. Mercury

Constr. Co., 460 U.S. 1, 23 (1983). Colorado River

abstention does not require federal courts to ignore the

federal interest in having federal courts decide questions

of federal law. Nor does it require them to ignore the

burdens that may be imposed upon litigants by shuffling

them between courts. Rather, Colorado River requires

an intelligent weighing of the interests present in a par-

ticular procedural situation.

The analogy to Colorado River is icularly signifi-

cant in the contéxt of a case involving federal preemption

issues. Wheré Congress has énacted legislation that is

preeinptive of state or local law, it has recognized a

federal interest sufficiently important to override state and

local autonomy. That federal interest must be taken into

account in balancing the need for federal court action.

Comity, the other concept to which the Court has re-

ferred as a basis for tribal court exhaustion, is similarly

flexible. The very definition of comity implies discretion:

“{a] willingness to grant a privilege, not as a matter of

right, but out of deference and good will.”** As between

sovereign nations, comity is “the recognition which one

nation allows within its territory to the legislative, execu-

tive or judicial acts of another nation, having due regard

both to international duty and convenience and to the

rights of its own Citizens or of other persons who are

under the protection of its laws.” RESTATEMENT (THIRD)

OF FOREIGN RELATIONS LAW OF THE UNITED STATES

§ 101 (1987). Moreover, the forum court must consider

its own interests as well as those of the othér state in

determining whether to exercise jurisdiction. /d, § 403(3).

Thus, under a traditional comity analysis, the federal in-

terest in having a federal court decide the preemptive

scope of federal law is a legitimate factor which should

be considered.

Finally, to the extent that the tribal exhaustion doctrine

has roots in the concept of exhaustion of administrative

12 Black’s Law Dictionary 266 (5th ed. 1998).

remedies, that doctrine, too, permits a flexible approach.

Exhaustion of administrative remedies “protects ~

autonomy by allowing the agency the opportunity in

first instance to apply its expertise and correct its Sve

errors”; “aids judicial review by allowing the parties and

the agency to develop the facts of the case in the agency

proceeding”, and “promotes judicial economy by avoid-

ing needless repetition of administrative Sand radical udicial fact-

finding, perhaps avoiding the necessity of any judicial

ifivolvement.” Bernard Schwartz, ADMINISTRATIVE Law

542 (3d ed. 1991). These purposes are echoed in Na-

tional Farmers’ explanation of the purposes of requiring

tribal exhaustion. See 471 U.S. at 856-57.

But, again, exhaustioti of administrative remedies is

not reqiiired as 4 matter of coiitse. Rather, in the dd-

ministrative law context as well, the intetests favorin

exhaustion aré td be Weighed against Countetvailing

interests:

{Tyhis Cotirt has declined to requite exhaustion in

some circimstances even where administrative and

judicial intetests would counsel otherwise, In deter-

mining whether exhaustion is required, federal courts

must balance the interest of the individual in obtain-

ing prompt access to a federal judicial forum against

countervailing institutional interests favoring exhaus-

tion.

McCarthy v. Madigan, 503 U.S. 140, 146 (1992).

It is thus plain that flexibility is an essential characteris-

tic of the various doctrines behind the concept of tribal

court exhaustion. These doctrines recognizé the obliga-

tion of a federal court to accept jurisdiction, declare the

boundaries of federal law, save litigants the expense

of unnecessary litigation.

B. The Ninth Circuit’s Strict View of the Exhaustion

Doctrine Is Not Supported by This Court’s Prece-

dents

In fashioning the concept of trial court exhaustion from

these pre-existing doctrines, this Court did not adopt an

inflexible rule. “{E]xhaustion is not an unyielding re-

quirement.” Strate, 420 U.S. at 449 n.7. Rather it is a

“prudential” doctrine, adopted “in deference to the ca-

pacity of tribal courts ‘to explain to the parties the precise

basis for accepting [or rejecting] jurisdiction.’” Jd. at

450 (quoting National Farmers Union, 471 U.S. at 857).

While the Court in its early cases required exhaustion for

a determination of the reach of the tribal court under

tribal law and applicable federal treaties, none of its

precedents have held that a question of federal preemp-

tion must be presented first in tribal court. On the con-

trary, there are substantial indications in this Court's

precedents that such issues of federal law are appropriately

considered by the federal courts without exhaustion.

The exhaustion doctrine originated in National Farmers

Union, a personal injury case arising from a motorcycle

accident in a school parking lot. The jurisdictional ques-

tion was whether the tribal court had authority over the

school district. Federal preemption was not at issue, as

there was no claim that a specific or comprehensive fed-

eral regulatory scheme precluded adjudication of the tort

case in tribal court. This Court concluded that “con-

siderations of comity” required exhaustion. See lowa

Mutual, 480 U.S. at 15 (explaining National Farmers

Union). These considerations included “tribal self-govern-

ment and self-determination” and fostering “the orderly

administration of justice in the federal court” based on

the development of a full record in the tribal court.

National Farmers Union, 471 U.S. at 856-57. The Court

explained that exhaustion would “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.” dd, at 857. Thus, the

“should be cond

Ske

In lowa Mutual, this Court followed much the same

tion to the Petitioners’ argument that tribal court roe

statute. This Court resolved that question of federal law

on its merits, holding that “[{iJn the absence of any indi-

cation that Congress intended the diversity statute to limit

the jurisdiction of the tribal courts,” the Court would not

Most recently, in Strate this Court reviewed its exhaus-

tion cases in considerable detail. It reiterated that the

analysis is a “ ‘prudential rule’ . . . based on comity.”

520 U.S. at 448, 453, 449 n.7. It noted that tribal court

jurisdiction over non-Indians in criminal cases is “cate-

gorically restricted” and hence not subject to exhaustion,

but that exhaustion is appropriate in civil matters where

“‘the existence and extent of a tribal court’s jurisdiction

will require a careful examination of tribal sovereignty,

the extent to which that sovereignty has been altered,

divested, or diminished, as well as a detailed study of

relevant statutes, Executive Branch policy as embodied in

treaties and elsewhere, and administrative or judicial deci-

sions.” Id. at 449 (quoting 471 U.S. at 855-56).

In Strate itself, the Court found that where a non-

member of the tribe was proceeding through the reserva-

tion on a right-of-way granted by a federal statute, 25

U.S.C, keeping 6h” 3 (1994), the tribe had lost its “

ght,” 520 U.S. at 455, so that the rights of the

nonmember would be governed by the rule of Montana v.

United States, 450 U.S. 544, er to controlling pro-

visions in treaties and statutes, and the two exceptions

identified in Montana, the civil authority of Indian tribes

and their courts with respect to non-Indian fee lands

generally ‘does not extend to the activities of nonmembers

of the tribe." 520 U.S. at 453 (quoting Montana, 450

U.S. at 565). The Court examined each of those excep-

tions and found that neither was satisfied by a tort case

against a nonmember arising from an accident on the

right-of-way.

Although Strate arose after full litigation in the tribal

courts, the Court's unanimous opinion dealt in a categori-

cal fashion with the issue of exhaustion in future cases.

Where, as in Strate, the case arose on a federal right-of-

way and it was “plain that no federal grant provides for

tribal governance of nonmembers’ conduct,” then it would

be “equally evident that tribal courts lack

authority over disputes arising from such conduct.” 520

U.S. at 459 n.14. In this situation, “the otherwise appli-

cable exhaustion requirement . . . must give way, for it

would serve no purpose other than delay.” Jd. at 459-60

n.14,

Strate thus indicates that when the issue of tribal court

jurisdiction turns purely on questions of federal statutory

law—the existence of a federal right-of-way and the ab-

sence of an express grant of power to the tribe—exhaus-

tion of tribal remedies is not required.“ There was no

13 The Ninth Cirevit panel responsible for the El Paso decision

had great difficulty in assimilating the Strate decision. Initially, it

rigidly concluded that there were only three “exceptions” to the

exhaustion doctrine. Pet. App. at 26a. On rehearing, it amended

its opinion to add a fourth exception. Jd. What the panel failed

to. recognize ia that the rule announced in Strate was simply

another practieal application of the flexible doctrine announced in

this Court’s earlier cases.

Under a flexible exhaustion analysis, the scope of initial

federal court review cannot be limited to situations in

jurisdiction will turn on the scope of a federal statute

that has nothing to do with Indian affairs. Thus, whether

the preemption is explicit or implicit, the policies favoring

o poomes Seine Caves Se Gs ee See ee

tion will be equally strong, and will be compelling in

relation to any reasons for exhaustion of tribal court

remedies.

A. Federal Regulatory Preemption May Deprive Tri-

bal Courts of Jurisdiction

In insisting on an express jurisdictional limitation, the

court below failed to appreciate the impact of federal

preemption on the scope of tribal court jurisdiction.

Where a federal statutory scheme—whether through its

express provisions or its implied effect—preempts tribal

regulation, it also deprives the tribal courts of the power

to adjudicate the rights of nonmembers. Thus, tribal court

jurisdiction will often turn on a precise analysis of the

scope of a federal scheme.

A starting point for any determination of the scope of

tribal court jurisdiction over a nonmember is the presump-

tion declared in Montana and reaffirmed in Strate: “In the

main, . . . ‘the inherent sovereign powers of an Indian

tribe’ . . . ‘do not extend to the activities of nonmembers

of the tribe.” Strate, 520 U.S. at 445-46 (citations

omitted); Montana, 450 U.S. at 565. This limitation

“‘rest[s] on the fact that the dependent status of Indian

tribes within our territorial jurisdiction is necessarily in-

consistent with their freedom independently to determine

their external relations.” Montana, 450 U.S. at 564

(quoting United States v. Wheeler, 435 U.S. 313, 326

(1978) (alteration in original)). The “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.” I/d.

Thus, Indian tribes have been implicitly divested of their

sovereignty in areas “involving the relations between an

Indian tribe and nonmembers of the tribe.” Id. (citation

omitted; emphasis in original ).

This presumption may be overcome in limited circum-

stances. When a tribe owns the land and has retained a

landowner’s “gatekeeping right” to control entry onto the

land, that tribe “retain{[s] considerable control over non-

member conduct.” Strate, 520 U.S. at 454. But if the

tribe no longer owns the land or, as in Strate, has other-

wise given up a landowner’s power to exclude nonmem-

bers from the land, the tribe ordinarily will have no basis

for regulating the conduct of a nonmember. Strate, 520

U.S. at 453; Bourland, 508 U.S. at 689, 691 n.11.

Where the tribe has no power to regulate the conduct

of a nonmember, it also lacks authority to bring that non-

member before a tribal court to adjudicate claims against

him. This is a central holding of Strate. “As to non-

members, we hold, a tribe’s adjudicative jurisdiction does

not exceed its legislative jurisdiction.” 520 U.S. at 453.

The Court emphasized, “Absent congressional direction

enlarging tribal-ccurt jurisdiction, we adhere to that under-

standing.” Jd. Thus, in that case, because the Tribes had

surrendered their power to regulate conduct on the fed-

erally granted right-of-way, they had also lost the power

to adjudicate claims against nonmembers arising from

their conduct on the right-of-way.

This removal of the Tribes’ regulatory power occurred,

not by express jurisdictional prohibition, but by implic?-

tion from a federal statute depriving the Tribes of their

power to regulate. And a tribe may also lose its power

to regulate, for example, as a result of a federal regula-

tory scheme that provides an exclusive remedy,"* occupies

14 See, e.g., Pilot Life Ins. Co. v. Dedeauz, 481 U.S. 41, 43-47

(1987) (complexity of statutory scheme confirms that Congress

intended remedies provided in Employee Retirement Income Secur-

ity Act of 1974 to be exclusive); Massachusetts Mutual Life Ins.

Co. v. Russell, 473 U.S. 134, 147 (1985) (same).

the field,"® or creates a practical conflict with local tribal

] aw.}®

In fact, this Court has held that tribal jurisdiction may

be removed by implication. In Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191 (1978), this Court deter-

mined that tribal courts lack jurisdiction to try non-Indians

for criminal offenses, despite the absence of an express

prohibition:

While Congress never expressly forbade Indian tribes

to impose criminal penalties on non-Indians, we now

make express our implicit conclusion of nearly a

century ago that Congress consistently believed this

to be the necessary result of its repeated legislative

actions.

435 US. at 204; see also National Farmers Union, 471

U.S. at 854-55 (Oliphant held that “federal legislation

conferring jurisdiction on the federal courts to try non-

Indians for offenses committed in Indian Country had

implicitly pre-empted tribal jurisdiction”) (emphasis

added ).

Whether federal law removes tribal regulatory power

through explicit or implicit preemption, the effect on tribal

court jurisdiction should be the same. The absence of reg-

ulatory jurisdiction over a nonmember necessarily must

result in the absence of adjudicatory power. Thus, in a

case where federal preemption is asserted, the pivotal

question is not the scope of the tribe’s jurisdiction under

15 See, e.g., California Fed. Savs. & Loan Ass'n v. Guerra, 479

U.S. 272, 280-81 (1987) (“[Clongressional intent to pre-empt state

law in a particular area may be inferred where the scheme of fed-

eral regulation is sufficiently comprehensive to make reasonable the

inference that Congress ‘left no room’ for supplementary state

regulation.”) (citation omitted); Pennsylvania RR. v. Public Serv-

ice Comm'n, 250 U.S. 566, 568 (1919).

16 See, e.g., Pacific Gas & Electric Co. v. State Energy Resources

Conservation & Development Comm'n, 461 U.S. 190, 203-04 (1983) ;

Rice v. Santa Fe Elevator Corp., 831 US. 218, 230 (1947).

its constitution, laws and treaties, but rather the interpreta-

tion of federal law.

B. Federal Courts Should Determine Implied Preemp-

tion Issues Without Requiring Exhaustion of Tribal

Court Remedies

As footnote 14 of the Strate opinion illustrates, federal

courts need not limit their role in determining tribal court

jurisdiction to cases of express prohibition. Where there

is a viable claim that a federal statute preempts tribal

regulatory power, the policies favoring an immediate deci-

sion outweigh the interests in tribal court exhaustion. In

fact, the same factors that support tribal court exhaustion

in the context of a personal injury or contract case, like

National Farmers Union or lowa Mutual, argue for a

prompt and definitive federal court decision in the context

of a challenge based on federal regulatory preemption.

In that circumstance, it is not the tribe’s asserted basis

for jurisdiction that is in issue, but rather the scope of the

federal scheme—the intent of Congress—that is disposi-

tive. The provisions of these federal regulatory schemes

are routinely addressed by federal courts, whereas tribal

courts encounter them infrequently, if at all. Moreover,

as the case before the Court demonstrates, analysis of a

claim of implied preemption of tribal court jurisdiction

calls for an analysis of a federal statute and Congress's

intent, rather than tribal law, and rarely requires an ex-

tensive factual record. If the federal scheme fully occupies

the field or specifies an exclusive remedy, “the precise

basis” for tribal court jurisdiction will be largely irrelevant.

Thus, the federal policies that underlay this Court's prior

decisions are not served by requiring exhaustion where

preemption is asserted.

Nor is referral of such matters to tribal courts consistent

with the orderly administration of justice. It makes no

sense that, while the federal courts may assume jurisdic-

tion immediately to hear claims of express prohibition of

tribal jurisdiction, they should withhold their expertise re-

solving claims of implied preemption until after full ad-

judication on the merits in tribal court. Moreover, re-

quiring exhaustion in these circumstances forces litigants

to shuffle between tribal and federal courts: first to federal

court to determine whether there is an express prohibi-

tion, then (if the court rules there is not) to tribal court

to consider whether there is an implied prohibition, then

back to federal court for a definitive ruling. Such a

scheme is hugely wasteful of the resources of both court

systems, as well as the time and assets of the litigants.

The approach of the court below to preemption is dis-

orderly—a formula for unending, multi-court litigation.

Even the policies supporting tribal autonomy are impli-

cated to a lesser degree when the decisive questions are

the scope and intent of a federal regulatory scheme rather

than identification of the limits of tribal sovereignty.

Those questions are issues on which federal courts will

obviously have the last word. A dry run of these issues in

tribal court seems pointless and ultimately corrosive of

true tribal court autonomy.”’ pe

If the pertinent federal policies are candidly assessed,

it is difficult to see why issues of express prohibition of

tribal court jurisdiction should be heard immediately by

federal courts, while questions of implied preemption

should be deferred until after tribal adjudication on the

17 As one commentator explained :

[A]llowing the tribal court to take “first crack” at issues that

involve no question of tribal law serves no policy of the ex-

haustion doctrine . . .. Though interpretation of state and

federal law is certainly within the purview of tribal court

jurisdiction, the tribal court can claim no particular or unique

expertise in these areas.

Laurie Reynolds, Exhaustion of Tribal Remedies: Extolling Tribal

Sovereignty While Expanding Federal Jurisdiction, 73 N.C. L. Rev.

1089, 1189 (1995).

merits. In either case, it is the federal court’s assessment

of the scope of federal preemption that will be determina-

tive of the outcome. If the issues are somewhat more

subtle in a case of implied preemption, this is a sound

reason to draw on the experience and expertise of the

federal court. Moreover, in contrast to statutes that spe-

cifically prohibit tribal court jurisdiction, comprehensive

federal schemes are not likely to be rooted in the history

of federal-tribal relations, but rather in the history of fed-

eral regulation of a particular industry or field. Thus,

there is no reasonable basis in the policies underlying

abstention for holding that federal courts can immediately

consider claims of express prohibition, but must defer on

claims of implied preemption.

An inflexible exhaustion requirement undermines the

legitimate interests of nonmembers arising under federal

law. Where the dispositive ruling ultimately will come

from the federal courts on an issue of federal law, it is

burdensome for nonmembers to be forced to litigate the

case to finality in the tribal courts before seeking a dis-

positive federal ruling. With federally-regulated entities,

such as railroads, the impact of a court’s refusal to enter-

tain a valid federal question pending resolution in tribal

court may be inconsistent with the congressional intent

underlying the federal scheme at issue. Congress’s pur-

pose in broad, preemptive regulation is usually to promote

uniformity and consistency in areas in which

perceives an important federal interest.% The inflexible

application of exhaustion of tribal remedies, notwithstand-

ing a colorable preemption claim, ignores these federal

18 See, e.g., Schneidewind v. ANR Pip. “e Co., 485 U.S. 293,

299-302 (1988) (Natural Gas Act of 1988 reflects Congress’ intent

to create a “comprehensive scheme of federal regulation” in natural

gas industry); Ray v. Atlantic Richfield Co., 435 U.S. 151, 163

(1978) (under Ports and Waterways Safety Act of 1972 “Congress

intended [to establish] uniform national standards for design and

interests and undermines the uniformity and consistency

those statutes are meant to promote.

The nation’s railroads are particularly concerned with

the lower courts’ refusal to consider countervailing in-

terests in exhaustion analysis. Tribal regulation of the

safety of railroad operations raises obvious preemption

issues under the Federal Railroad Safety Act (“FRSA”),

as amended. 49 U.S.C. §$§ 20101-20153 (1994). Sec-

tion 20106 of the FRSA expressly preempts state regula-

tion of areas regulated federally, and the federal courts

have given a broad interpretation to the scope of such

preemption.’® Because of the context in which it was

written, however, this statute does not expressly refer to

tribal law or jurisdiction. Railroads should not be com-

pelled to adjudicate the merits of tribal enforcement of

tribal railroad safety ordinances when the controlling

question is the preemptive scope of the federal statute.

Similarly, the ICC Termination Act of 1995

(“ICCTA”) vests “exclusive jurisdiction” in the Surface

Transportation Board over the “services and facilities” of

railroads, declares “the remedies provided under” the stat-

ute to be “exclusive,” and “preempt[s] the remedies pro-

vided under Federal or State law.” 49 U.S.C.A. § 10501

(b)(2) (1997). While this statute does not expressly

construction” of tanker vessels); Hines v. Davidowitz, 312 U.S. 52,

61 (1941) (federal interest in foreign affairs and uniform natu-

ralization preempted Pennsylvania statute requiring registration

of alien residents in the state).

19 See, e.g., Burlington Northern R.R. v. Minnesota, 882 F.2d

1349, 1353 (8th Cir. 1989) (FRSA preempts state caboose law since

regulations promulgated under that statute permit “the use of end-

of-train telemetry devices as substitutes for visual brakes inspec-

tion”) ; Burlington Northern R.R. v. Montana, 880 F.2d 1104, 1106

(9th Cir. 1989) (same); Missouri Pace. R.R. v. Railroad Comm'n

of Texas, 850 F.2d 264, 268 (5th Cir. 1988) (“virtually all state

regulations affecting the train itself appear preempted by federal

law”).

, the sweeping exhaustion

theory followed by the below—which accords no

weight to the federal interests at all—threatens to elimi-

nate any timely opportunity for railroads to seek federal

protection from unauthorized and inappropriate tribal

regulations.

CONCLUSION

The Court should reverse the decision of the court of

appeals and hold that a federal court must address issues

of federal preemption, whether express or implied, without

requiring that tribal remedies first be exhausted.

Respectfully submitted,

Of Counsel: Betty Jo CHRISTIAN

Lous WARCHOT Counsel of Record