Burlington Northern Santa Fe Railroad Company v. The Assiniboine And Sioux Tribes Of The Fort Peck Reservation

323 F.3d 767 BURLINGTON NORTHERN SANTA FE RAILROAD COMPANY, a Delaware corporation, Plaintiff-Appellee, v. THE ASSINIBOINE AND SIOUX TRIBES OF THE FORT PECK RESERVATION, Montana; Arlyn Headdress, chairman of the Fort Peck Tribal Executive Board; Mervyn Shields, Director, Tax Department of the Assiniboine and Sioux Tribes, Defendants-Appellants. No. 01-35681. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 10, 2002. Filed March 17, 2003. Reid Peyton Chambers, Sonosky, Chambers, Sachse, Endreson & Perry, Washington, DC, for the defendants-appellants. Neil G. Westesen, Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., and Charles G. Cole, Steptoe & Johnson LLP, Washington, DC, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CV-01-00034-JDS. Before BEEZER, GOULD, and BERZON, Circuit Judges. Opinion by Judge BERZON; Concurrence by Judge GOULD. OPINION BERZON, Circuit Judge. BACKGROUND 1 The Burlington Northern Santa Fe Railroad Company ("BN" or "the Company"), a non-Indian corporation, runs a rail line that crosses over 80 miles of…