Judicial Code

Nuclear Radiation Control Ordinance

Chapter A. Policy, Purpose, and Interpretation of the Nuclear Radiation Control Ordinance.

Section 1. [POLICY]  It is the policy of the Prairie Island Mdewakanton Sioux Indian Community to make every reasonable effort to preserve the biological integrity of the global environment, especially the environment of the Prairie Island Indian Reservation and to reasonably resist any attempt by foreign and external persons or governments to compromise that integrity.  This policy is enacted in recognition of the fact that government agencies and corporations have historically and continue to treat Indian lives and happiness as an expendable quantity, valued far lower than most U.S. citizens, sacrificed for public good and private profit, with no distinction made between the two.

Section 2 [PURPOSE]  This ordinance is enacted by the Tribal Council pursuant to its Constitutionally derived power to safeguard and promote the peace, safety, morals, and general welfare of the Prairie Island Indian Community by regulating the conduct of trade and the use and disposition of reservation property in order to protect the health and safety, economic interests, spiritual needs and aesthetic desires of tribal members and their descendants, and to protect all life on the ancestral lands of the Mdewakanton Sioux Indian people.  This ordinance may be referred to as the “Nuclear Radiation Control Ordinance.”

Section 3 [INTERPRETATION]  The meaning of these terms is the plain meaning of the term.  Ambiguities shall be resolved by the Prairie Island Indian Community Tribal Council, or person designated by the Council.  References made to the law of any nation, or any subdivision of government within that nation are only to the law and interpretation of that law as understood by the Mdewakanton Sioux people on the day this ordinance was enacted.  Later interpretations of foreign law, without more, do not affect the meaning of this ordinance.

Chapter B. Definitions.

Section 1. [DEFINITIONS]  The intent of the Tribal Council in the definitions given in this Chapter should be construed from the words and phrases used in the definitions.  As used in this Ordinance:

(a) The term “agreement of cooperation” means any agreement with a person or another governmental entity (federal, state or local) as to acts regulated hereby.

(b) The term “atomic energy” means all forms of energy released in the course of nuclear fission or nuclear transformation.

(c)The term “licensed activity” means any activity licensed pursuant to this ordinance.

(d) The term “nuclear incident” means any occurrence, including but not limited to accidents, acts of war, terrorist acts and sabotage, within a two hundred mile radius from the boundaries of the reservation causing, within the reservation boundaries, bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of radioactive substance.

(e) The term “person” means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, federal government agency, any State or any political subdivision of, or any political entity within a State; and any legal successor, representative, agency, or agency of the foregoing.

(f) The term “radioactive substance” means all things releasing energy because of radioactive decay unless specifically excepted by this section.  “Radioactive substance” includes inanimate solids, liquids, gases, slurries, aerosols, or any other phase of matter, people and other living creatures and plants.  {Specific Inclusions]  The term “radioactive substance” specifically includes source nuclear material, special nuclear material, and by-product material, as defined by the atomic Energy Act of 1954, United States Code, Title 42, Section 2014, as amended, up to January 1, 1985.

[Exceptions]  The term “radioactive substance” does not include:

(i) Biological wastes released by persons and living creatures undergoing radiological therapy.

(ii) Ionization-type smoke alarms, watch dials, emergency signs and instrument panels lit by radium, tritium or other high-energy substance, and other devices commonly used in residences.

(iii) Natural materials, if not previously processed for use in nuclear reactors, or made radioactive by human acts or accidents.

(g)  Repealed.

(h) “Regulated zone” means the reservation and any other lands outside the reservation boundaries to which the Prairie Island Indian Community maintains possessory or usage rights arising out of congressionally ratified treaties.  Any air, surface water or groundwater likely to be located on, beneath or above such lands is also within the regulated zone.

(i) “Reservation” means the territory of the Prairie Island Indian Community as defined in the Constitution and Bylaws of the Prairie Island Indian Community.

(j) The term “nuclear fission or fusion reactor” means any device in which a substantial fraction of the energy emitted is caused by atomic fission, fusion, or other subatomic transformations.

(k) The term “vehicle” means non-articulated railroad cars and all trucks, except those containing more than one articulation.  Watercraft, aircraft and non-wheeled land transport are not vehicles.

(l) The terms “uranium fuel cycle” means the operations of milling and refining of uranium ore, enrichment of uranium, fabrication of uranium fuel, generation of electricity by a light-water-cooled nuclear power plant using uranium fuel, and reprocessing of spent uranium fuel, to the extent that these directly support the production of electrical power for public use utilizing nuclear energy, but excludes mining operations, operations at waste disposal sites, transportation or any radioactive material in support of these operations, and the reuse of recovered non-uranium special nuclear and by-product materials from the cycle.

Chapter C.  Transportation/Exposure Regulations.

Section 1. [TRANSPORTATION OF RADIOACTIVE SUBSTANCE]  No person shall transport radioactive substances into or through the reservation or regulated zone notwithstanding any right-of-way, without first being issued a transportation license as provided for herein.

Section 2. [TRANSPORTATION LICENSE]  Any person wishing to apply for a transportation license pursuant to this ordinance must make a formal written request to the Tribal Council at least one hundred eighty (180) days prior to such proposed transportation or action to the Tribal Council to be accompanied with a cashier’s check or money order in the amount of One Thousand and NO/100 ($1,000.00) Dollars within thirty (30) days of such application.  The license applicant shall include in its formal written request the following information:  (1) name of shipper, (2) name of carrier, (3) type and quantity of radioactive material, (4) date and time of shipment, (5) starting point, scheduled route and destination, and (6) other information required in writing by the Tribal Council.  After payment of the application fee, the Tribal Council shall set a time, date and place for a hearing and give notice of such information.  At the hearing, the Tribal Council shall hear testimony and receive evidence on whether to license the proposed activity.  Sixty (60) days prior to the proposed activity, the Tribal Council shall decide whether to grant such a license; the Tribal Council shall immediately thereafter give written notice of its decision.  The license may only be denied for failure to comply with the requirements of the ordinance, or other good cause.  A statement of reasons shall be issued with the denial.  Parties denied licenses may seek judicial review in any court having jurisdiction over the matter.  There shall be a license application for each individual vehicle proposed to pass through the reservation or regulated zone; or otherwise as determined in writing by the Tribal Council.  All decisions of the Tribal Council are final, except for judicial review as set forth above.

Section 3. [RADIATION-RELEASING ACTIVITY]  no person shall conduct any other activity, except in defense of the United States from attack by a foreign nation, which causes persons within the regulated zone to receive a total radiation exposure in excess of permitted levels, as stated below in Section 5.

Section 4. [STANDARDS]  Any person applying for a license under Section 2, or otherwise responsible for radiation-releasing activity must show the Tribal Council, whenever the Tribal Council request, by a preponderance of the evidence, that during the past, present or proposed licensed activity, or other activity, the total radiation exposure to persons within the regulated zone was, is or will be within permitted levels as defined below in Section 5.  Alternatively, the applicant must show that the extra radiation exposure was or is expressly permitted by the U.S. Nuclear Regulatory Commission, and other agencies with jurisdiction over the matter.  Any person may submit supporting or countering evidence to the Tribal Council . After affording notice and hearing, the Tribal Council shall issue findings of facts, conclusions of law and order.  Only after a determination is made by the Tribal Council under this section, may any person proposing to transport radioactive substance through the reservation or regulated zone receive a license from the Tribal Council as provided for in Section 2 of this Chapter.

Section 5. [PERMITTED EXPOSURE LEVELS]

(a)No person shall cause any tribal member, residing on the Reservation, to be exposed to radiation above:

(1)the levels prescribed in Code of Federal Regulations, Title 10, part 190 and 191, by uranium fuel cycle activity, operation of any nuclear fission or fusion reactor, or spent nuclear fuel, high-level and transuranic radioactive waste facility.

(2)the levels prescribed in Code of Federal Regulations, Title 10, Part 7, Title 49, Part 173 (shipping requirements, 174 (rail) and 177 (road), for radioactive material and radioactive waste transportation.

(b) No person or group of persons acting in concert may so divide up its radiation-releasing activities so as to cause a tribal member residing on the Reservation to receive more radiation than that prescribed by the U.S. Nuclear Regulatory Commission as a safe level of non-occupational exposure as set forth in Code of Federal Regulations, Part 190, Subpart B.

Section 6 [ENFORCEMENT]  Use of Tribal roads or highways constitutes consent to inspection.  The Tribal Council retains the right and power to inspect at all reasonable times and with or without notice, vehicles or other property within the boundaries of the Reservation, notwithstanding any right-of-way, for the purpose of determining whether or not there is compliance with or violation of the provisions of this ordinance.  Any inspection must be conducted so as not to violate state or federal law.  Vehicle operators must not be unnecessarily inconvenienced by either extended detours, unnecessary delays, or any other unreasonable cause.  The Tribal Council may, after using its power to compel factual disclosures, respond to violations by notifying other government agencies or filing suit against the violator as provided for herein or under applicable common and statutory law.

Chapter D. Assessment and Regulatory Compliance Assurance.

Section 1. [ASSESSMENT OF PROPOSED FACILITIES]

(a) No nuclear reactor, material processing or waste management facility shall be constructed on the reservation or other land within the regulated zone unless the person proposing to construct the facility:

(i) provides, pays for, and present to the Tribal Council an environmental and health impact statement and radiation exposure analysis found acceptable by the Tribal council, that shows that the proposed project will not lead to violations of tribal, municipal, county, state, regional or federal nuclear energy regulations, and assesses the proposed facility’s impact on:

(A)The health of people, especially children and the elderly.

(B)Wildlife, both directly and through habitat degradation.

(C)Historical and pre-historical sites, including those remembered by Native American people, and with account taken for the Mdewakanton Sioux spiritual beliefs.

(D)Future land development and energy demand.

(E)All other impacts on the Mdewakanton Sioux’s quality of life.

(ii)And makes satisfactory financial arrangements to pay for:

(A)Tribal expenses incurred in dealing with the proposed facility, including staff time, consultant fees and counsel fees and court costs.

(B)All necessary mitigation measures.

(C)A set share of health monitoring costs for tribal members made necessary by nuclear radiation exposures.

Chapter E. Agreements of Cooperation.

Section 1. [AGREEMENTS OF COOPERATION]  Any person proposing to conduct a series of licensed activities or repetitive licensed activity or series of other activities subject to an assessment pursuant to Chapter D of this ordinance or repetitive activity subject to such assessment may request the Tribal Council to enter into negotiations for the purpose of creating agreements of cooperation in which the Tribal Council and such person shall consider such series of activities or continual activity to agree to a comprehensive plan that shall regulate such activities or activity and thereby forego the need of a continuing referral to this ordinance.  Such agreement of cooperation shall be binding upon the parties.

Chapter F. Civil Penalties

Section 1. [CIVIL PENALTIES]  Any person found to have intentionally or unintentionally violated any provisions of this ordinance shall be fined a civil fine to cover all costs incurred by the Prairie Island Indian Community for the prevention and/or abatement of any resulting effects of such violation.  Willful violations of the terms of this ordinance shall result in an added civil fine of One Million and NO/100 ($1,000,000.00) Dollars beyond costs incurred.  Interest on unpaid fines shall accrue at 1 percent per month, simple, for each full month the fine remains unpaid.

Section 2. [PROCEEDING]  Whether the person concerned violated this ordinance, the amount of the costs incurred by the Tribe, and whether the violation was negligent or willful shall be determined by the Tribal Council.  Notice and an opportunity to be heard shall be afforded the person alleged to have violated this Ordinance.  No other person shall be heard, unless called by either the person concerned or the Tribal Council.  Notice may be personal, publication or by mail and shall be issued at least thirty (30) days prior to the date fixed for hearing.

Section 3. [APPELLATE REVIEW]  Parties found to have violated the ordinance may seek judicial review in any court having jurisdiction over the matter.

Section 4. [RE-HEARING AFTER DEFAULT]  Persons found to have violated the ordinance, who did not attend their hearing, may be heard upon showing the failure to attend the hearing was for good cause, as determined by Tribal Council.

Chapter G. Legal Proceedings to Protect Tribal Authority:

Section 1. [INJUNCTION PROCEEDINGS]  Notwithstanding the existence or use of any other remedy, whenever any person has engaged in, or is about to engage in, any acts or practices which constitute a violation of any provision of this ordinance, or any rule, regulation, or order issued thereunder, General Counsel to the Prairie Island Indian Community upon the request of the  Tribal Council, after notice to such person and opportunity to comply, may make an application to the appropriate court for an order enjoining such acts or practices, or for an order directing compliance, and upon showing by the Tribal Council that such person has engaged in, or is about to engage in, any such acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted.  Any such action brought pursuant to this section shall not constitute a waiver of the Prairie Island Indian Community’s sovereign immunity.

Chapter H. Sovereign Immunity:

Section 1 [SOVEREIGN IMMUNITY]  Except as provided for herein, nothing in this ordinance shall be interpreted or otherwise thought of as providing for a waiver of the Prairie Island Indian Community’s sovereign immunity.  The Tribal council hereby expressly waives its immunity from suit pursuant to the provision above for judicial review by appropriate court to determine only whether the Tribal Council abused its discretion while making a decision pursuant to the terms of this ordinance.  The Tribal Council does not hereby waive its immunity from suit for any other purposes, including a request for attorney fees.

Chapter I. Severability:

Section 1. [SEVERABILITY]  If any individual chapter, section, phrase or word of this ordinance is deemed unlawful, such determination shall have no effect on the validity of the remaining chapters, sections, phrases or words of this ordinance.

Chapter J. Adopting Resolution and Review:

Section 1.[ADOPTING RESOLUTION]  This revised ordinance shall be adopted by resolution; the resolution adopting this ordinance is Resolution No. 91-37.

Section 2.[REVIEW]  The Tribal Council shall request the Department of Interior to review this ordinance; however, upon adoption, this ordinance shall be valid and binding on all person.

Section 3.[FORM]  Upon review by the Department of Interior this ordinance shall be codified under the section and subsection numbers enclosed in brackets.  This resolution incorporate typographical corrections of the language previously enacted by the Tribal Council.

Chapter K. Amendments.

Section 1. [AMENDMENTS]  The Tribal council may amend this ordinance as needed.

Copyright © 2003-2005, Prairie Island Indian Community. (Updated 12-21-04.)