NAVAJO INDIAN COUNTRY AND THE NAVAJO NATION BAN ON URANIUM MINING

• Jurisdiction: United States

Uranium Exploration and Development
(Apr 2006)
CHAPTER 13A
NAVAJO INDIAN COUNTRY AND THE NAVAJO NATION BAN ON URANIUM MINING
Alfred C. Chidester
Marc D. Flink
Casie D. Collignon
Baker & Hostetler LLP
Denver, Colorado

ALFRED C. CHIDESTER

Alfred C. Chidester is a partner with Baker & Hostetler LLP in Denver, Colorado. He focuses his practice on corporate and securities law with special emphasis in mergers and acquisitions, public offerings and private placements, as well as representation of lending institutions. He has represented both buyers and sellers of various businesses, including health maintenance organizations and natural resource companies involved in exploration for coal, oil and gas. Mr. Chidester joined Baker Hostetler in 1985 after serving as President of an oil and gas exploration company from 1981-84. From 1979-81 he was Associate General Counsel and then General Counsel for a New York Stock Exchange listed company located in Boston, Massachusetts. From 1971-79 he was in private practice in Boston.

Mr. Chidester earned his A.B. at Dartmouth College (1967); J.D. at Boston University School of Law (1970). He is admitted to the Bars of Colorado, 1985; Massachusetts, 1972; and California, 1971.

MARC D. FLINK and CASIE D. COLLIGNON

Marc D. Flink is a partner and Casie D. Collignon is an associate in the Denver office of Baker & Hostetler LLP. The authors are counsel to Uranium Resources, Inc. and its affiliate Hydro Resources, Inc. ("HRI"). These entities own in fee surface and/or mineral interests in McKinley County, New Mexico lands outside the exterior boundaries of the Navajo Reservation, but on land that the Navajo Nation contends is Indian country and subject to the Navajo Nation's legislative jurisdiction. The authors presently are representing HRI in proceedings before the Environmental Protection Agency on remand from the United States Tenth Circuit Court of Appeals in HRI, Inc. v. Environmental Protection Agency, 198 F.3d 1224 (10^th Cir. 2000) to determine whether certain of those lands is Indian country as a dependent Indian community under 18 U.S.C. § 1151(b) . The comments filed by HRI before the EPA and the comments filed by other persons and entities who claim an interest in the issue to be determined can be found at www.epa.gov/region09/water/groundwater/permitdetermination.html.

INTRODUCTION¹

The Dine Natural Resource Protection Act of 2005² bans uranium mining and processing on "Navajo Indian Country" as defined in the Navajo Nation Code Title 7 Section 254 (2005) (hereinafter 7 N.N.C. § 254) and 18 U.S.C. § 1151 (hereinafter "§ 1151") and asserts the right to ban uranium mining as a "fundamental exercise of Navajo tribal sovereignty."

Webster's Dictionary defines "sovereignty" as "supreme power over a body politic" and "freedom from external control."³ Black's Law Dictionary defines "sovereign" as an entity "in which independent and supreme authority is vested."⁴ Since it is arguably the essence of sovereignty not to exist merely at the whim of an external government, as applied to Indian tribal political power over non-Indians outside the boundaries of a reservation, the term is a misnomer. Tribal "sovereignty," to the extent recognized by the United States Supreme Court, is ultimately dependent upon and subject to the power of Congress. Further, the concept of tribal "sovereignty," to the extent recognized by the United States Supreme Court, has been addressed only in the context of the exercise by a tribe of legislative and adjudicatory powers within the external boundaries of Indian reservations. The Resolution by which the DNRP was adopted attempts to assert the claimed "sovereign" power of the Navajo Nation to regulate commercial activities of non-Indians not only on lands within the boundaries of their formal reservation (including non-Indian fee land within the reservation boundaries), but also on allotted lands and dependent Indian communities that lay outside the boundaries of the reservation.

This paper will examine whether this assertion of political power by the Navajo Nation over Navajo Indian Country as so defined exceeds the "sovereign" power of the Navajo Nation.⁵

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I. The Dine Natural Resource Protection Act of 2005.

Attached as Exhibit A is a copy of the Resolution of the Navajo Nation Council, as signed by the President of the Navajo Nation on April 29, 2005 ("Resolution"), that enacted the Dine Natural Resource Protection Act of 2005. The key elements of the Resolution for purposes of this discussion are the following:

1. The Navajo Nation views its jurisdictional basis for the Resolution as the "fundamental exercise of Navajo tribal sovereignty."⁶

2. All persons are banned from "engag[ing] in uranium mining and uranium processing on any sites within Navajo Indian Country."⁷

3. The term "person" includes every natural person or entity and any state or political subdivision of a state and the United States government and any department or instrumentality thereof.⁸

4. Navajo Indian Country is defined as all "lands within the territorial jurisdiction of the Navajo Nation as defined in 7 N.N.C. § 254 and 18 U.S.C. § 1151."⁹

II. The United States Supreme Court has Applied Federal Common Law Principles of Indian Sovereignty Over the Activities of Non-Indians In the Context of and Only To Conduct on Reservation Land.

The Supreme Court's precedents reflect two incompatible and doubtful assumptions concerning tribal "sovereignty" - (a) that Congress can regulate every aspect of the tribes without rendering tribal sovereignty a nullity and (b) that tribes retain inherent sovereignty over their members and territory. Logically, one would think that tribes are either sovereign or they are not. However, the Supreme Court's federal Indian case law appears to hold both positions simultaneously.

So said (in paraphrase) Justice Thomas in a separate concurrence in United States v. Lara.¹⁰ He further stated that holding these simultaneous positions is untenable and results in confusion that will continue to haunt cases considered by the Supreme Court.¹¹

For the rest of us, we have to deal with the realization that we and our clients have to navigate the confusion created by the Supreme Court's admittedly "intricate web of judicially made Indian law"¹² that attempts to address the relationship of Indian tribes to the

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National Government, a relationship described as "an anomalous one and of a complex character."¹³

The principles of Indian sovereignty set forth by the Supreme Court arise from several types of cases, all of which concern activities within the boundaries of the reservation of the tribe involved in the case - (a) tribal court jurisdiction over crimes committed on reservations by nonmembers; (b) taxation by a tribe of non-Indian commercial activity within reservation boundaries; (c) assertion of tribal legislative or regulatory authority over non-Indian activity on reservation lands and non-Indian fee lands within the reservation boundaries; and (d) tribal court jurisdiction to adjudicate civil claims arising out of torts committed by nonmembers of the tribe on non-tribal land within reservation boundaries.

We are dealing here in the case of the DNRP with the attempted assertion of legislative or regulatory authority not only over nonmembers who conduct activities on reservation lands, but also over nonmembers who conduct activities on lands, including ostensibly lands with no tribal ownership, that fall outside the boundaries of the reservation. Because, as a practical matter, we are not aware of any present plans to extract uranium from lands within the external boundaries of the reservation, the significance of the DNRP is the Navajo Nation's attempted extension of their "sovereignty" power beyond those borders. Further, as addressed in the companion paper prepared by Mr. Stephen Lauer, even if the Navajo Nation may have the "sovereign" power to regulate uranium mining on reservation and/or non-reservation lands, the exercise of that power may be subject to principles of preemption.

The Supreme Court has articulated in the line of cases beginning with Montana v. United States,¹⁴ the clear principle that without a delegation of authority from the Congress of the United States, tribes have no civil authority over nonmembers, subject only to the Montana exceptions for consensual relationships between the non-member and the tribe and conduct on fee lands within the reservation that threatens or has some direct effect on the political integrity, the economic security or the health or welfare of the tribe.¹⁵ In Atkinson Trading Company v. Shirley,¹⁶ Chief Justice Rehnquist summarized the development of the Supreme Court's analysis of an Indian tribe's legislative authority under theories of inherent sovereignty:

Tribal jurisdiction is limited: For powers not expressly conferred upon them by federal statute or treaty, Indian tribes must rely upon their retained or inherent sovereignty. In Montana, the most exhaustively reasoned of our modern cases addressing this latter authority, we observed that Indian tribe power over nonmembers on non-Indian fee land is sharply circumscribed. At issue in Montana was the Crow Tribe's attempt to regulate nonmember fishing and hunting on non-Indian fee land within the reservation. Although we "readily agree[d]" that the 1868 Fort Laramie Treaty authorized the Crow Tribe to prohibit nonmembers from hunting or fishing on tribal land, 450 U.S., at 557, we held that such "power cannot apply to lands held in fee by

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non-Indians." Id. at 559. This delineation of members and nonmembers, tribal land and non-Indian fee land, stemmed from the dependent nature of tribal sovereignty. Surveying our cases in this area dating back to 1810, see Fletcher v. Peck, 6 Cranch 87, 147 (1810) (Johnson, J., concurring) (stating that Indian tribes have lost any "right of governing...