(The Billings Gazette posted the following story by Lorna Thackeray on its website on March 20.)
BILLINGS, Mon. — Montana’s Fort Peck Tribes may be able to start taxing Burlington Northern Santa Fe Railroad again, if their attorneys can demonstrate that trains that cross 80 miles of the reservation threaten their health or welfare.
It’s a long shot, but a ruling this week by the U.S. 9th Circuit Court of Appeals gives the Assiniboine and Sioux tribes a chance to show that they should have regulatory authority over the railroad, including the power to tax.
The 4 percent tax, which the railroad stopped paying after 2000, resulted in a loss of $1.3 million in revenue for the tribe, said Mervyn Shields, director of the Fort Peck tax department. The entire tribal budget for that year was about $9 million.2nd chance
“This is good news for us,” Shield said. “It gives us another chance.”
But BNSF spokesman Gus Melonas was skeptical.
“The 9th Circuit has ruled in favor of BNSF on three of the four arguments made by the tribes and returned the remaining issue to the lower court for additional information to be developed,” he said. “We believe our position concerning the tribe’s taxing jurisdiction is correct and will be supported by the court’s review of the additional information.”
In this week’s ruling, the three-judge Circuit Court panel affirmed most of a 2001 District Court decision that rejected the tribes’ argument that it had authority to impose the tax.
But the judges determined that Senior U.S. District Judge Jack Shanstrom had issued a summary judgment in favor of the railroad prematurely. The tribes should have been given time for “discovery” — to gather information from the railroad and other sources to back their assertion that the railroad presents a health and safety threat.
No wholesale
The judges vacated Shanstrom’s summary judgment order and remanded the case to Billings for further proceedings. The ruling said that its intent isn’t to require “wholesale” discovery and allows Shanstrom to tailor a limited discovery plan.
Recent Supreme Court rulings have severely limited tribal authority to tax or regulate non-Indians on fee lands within reservation boundaries. Fee lands on reservations are those that non-Indians purchased decades ago from individual tribal members.
In a string of decisions, the Supreme Court also determined that federally granted rights of way should be treated as fee lands. BNSF rights of way through the reservation were granted by Congress in 1887.
Similar grants were made to BNSF predecessors on the Blackfeet and Crow reservations, where tribes have also made unsuccessful attempts at taxation. The 9th Circuit had previously ruled in favor of the Blackfeet tax, but reversed itself in 2000 to conform with the Supreme Court decisions.
Basically, without specific authorization from Congress through statute or treaty, Indian tribes lack civil authority over the conduct of non-tribal members on fee lands. The only exceptions to that rule are if the tribe and nonmember have entered into a consensual agreement or if the non-member’s activity affected the political integrity, the economic security or the health and welfare of the tribe.
In his summary-judgment ruling, Shanstrom said the tribe could not establish that a consensual agreement existed between the tribes and the railroad or that the railroad presented any threat to the tribes.
The 9th Circuit agreed for the most part. But said that the tribes should have been permitted more time to determine if the railroad’s activities presented a threat.
The judges noted that, in 2000, more than 1,695 freight cars crossed the reservation each day.
“The tribes are aware that hazardous materials are carried on BNSF’s cars because BNSF has asked the tribes to work with the company on emergency contingency plans,” their ruling said.
“The tribes know of derailment incidents and, in their own words, ‘have gathered evidence of numerous fires and accidents with attendant property damage and sometimes fatalities.’ ”
The tribes are entitled to discovery of the railroad’s own files to make a complete record, the judges wrote. Once they’ve gathered the information, the tribes can then go before Shanstrom and try to convince him that the threat is serious enough to warrant tribal authority over the railroad.