Court allows tribal court suits over uranium mining Story-Date: 04:44 p.m. PST Wednesday, February 11, 1998 ------------------------------------------------------------ Court allows tribal court suits over uranium mining By Bob Egelko Associated Press Writer SAN FRANCISCO (AP) -- Indians can sue in tribal court over injuries caused by uranium mining on tribal land, a federal appeals court ruled Wednesday. In a 2-1 decision, the 9th U.S. Circuit Court of Appeals rejected Arizona mining companies' arguments that all nuclear-related damage suits can be heard only by a federal district court. The Navajo Tribal Court must first consider suits by three Indians and decide whether they can be resolved under tribal law, the appellate panel said. In one suit, two sisters contend they and their cattle were poisoned by water contamination from uranium mining conducted by an El Paso Natural Gas subsidiary on the Navajo Reservation in the late 1950s. The second suit is by a woman who blames her husband's fatal cancer on uranium mining and processing at another reservation site by Vanadium Corp. of America, now owned by Cyprus Foote Mineral Co. Lawyers on both sides said the same potential damages and defenses were available in tribal court as in federal court. But Cherie Daut Neztsosie, lawyer for the two sisters suing El Paso Natural Gas, said staying in tribal court was important to both the plaintiffs and the tribe. "The Navajo people themselves will have a chance to determine the culpability of these companies in accordance with Navajo law, with testimony in Navajo and medicine man testimony about damages done to the plaintiffs," said the lawyer, who is also her clients' sister-in-law. "The (tribal) court is much more attuned to how a Navajo might have been damaged than a court that wouldn't be familiar with the Navajo way of life." She said the tribal courts have already ruled that they have jurisdiction over both suits, but no trial dates have been set. Tribal court rulings can be appealed to the Navajo Supreme Court, after which a U.S. District Court judge has a limited power of review. Richard Woods, a lawyer for El Paso Natural Gas, said the ruling may be appealed. "We believe the federal court is a more appropriate and superior forum" with experience handling nuclear injury cases and authority to consolidate multiple cases into a single proceeding, Woods said. He contended the Price-Anderson Act, a 1957 federal law limiting damages against the nuclear industry, requires all nuclear-related injury claims to be heard by federal courts. The tribal members' suits were filed in tribal court in 1995, but the mining companies filed separate federal court suits in 1996 seeking to block them. U.S. District Judge Roger Strand ruled that the tribal courts could consider claims arising out of Navajo law, but not any claims under the Price-Anderson Act, which covers injuries from any "nuclear incident." Strand did not decide whether any of the claims involved Price-Anderson. The companies said every claim in each suit was covered by the federal law, but the plaintiffs' lawyers argued, and tribal courts have agreed, that the suits could be addressed under doctrines such as negligence that are part of Navajo law. The appeals court said both suits must first be considered by tribal courts, which will decide their jurisdiction and resolve issues that arise under tribal law. The well-established practice of referring jurisdictional issues to tribal courts is based on doctrines of mutual respect and "the long-standing policy of promoting tribal self-government and self-determination," said the opinion by Judge Harry Pregerson. Because the Price-Anderson Act does not expressly prohibit tribal court jurisdiction over nuclear-related cases, the Navajo court can decide its own authority to hear the case, said Pregerson, joined by Judge Warren Ferguson. Dissenting Judge Andrew Kleinfeld said the entire case belonged in federal court. "I do not think there are any actions that can arise out of sickness or death resulting from the hazardous properties of nuclear material that are not Price-Anderson actions," he said. The case is El Paso Natural Gas vs. Neztsosie, 96-17121. ------------------------------------------------------------