Burlington Northern Santa Fe Railroad v. Assiniboine & Sioux Tribes of the Fort Peck Reservation
Opinion
concurrence Opinion
Gould, J.
concurring.
1 concur and comment on the Montana exceptions. Since Montana was declared the law of the land by the Supreme Court in 1981, Indian nations, non-Indians who live or do business on Indian lands, and others who interact with Indian nations have struggled to define the bounds for the consent and tribal integrity exceptions to Montana’s general rule restricting Indian nations’ jurisdiction over non-Indians. We are not dealing with a frivolous position by the tribes, but with the line between Indian sovereignty and freedom of action of those whose lives cross Indian territory. I agree with our ruling on discovery on the second Montana exception, for if the trains crossing a tribe’s reservation carry toxic or dangerous chemicals, nuclear waste, biological dangers, or other threats to the reservation, then the tribe has a right to know what company it keeps, and then to assess whether any taxing strategy could fairly cover the tribe’s protective costs. Only on a full record can it fairly be decided whether Montana’s second exception can be satisfied.
lead Opinion
Berzon, J.
Opinion by Judge BERZON; Concurrence by Judge GOULD.
OPINION
BACKGROUND
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 the Fort Peck Indian Reservation (“the Reservation”), governed by the Assiniboine and Sioux Tribes (“the Tribes”). The rail line is built on a right-of-way granted by Congress in 1887 to BN’s predecessor-in-interest. Act of Feb. 15, 1887, ch. 130, 24 Stat. 402 . BN runs an average of 26 trains per day over the rail line through the Reservation, totaling more than 619,000 cars in 2000.
We are asked to decide if the Tribes may continue to impose on BN an ad valorem tax levied on the value of “all utility property,” defined as including “any publicly or privately owned railroad.” See the Tribes’ Comprehensive Code of Jus *769 tice, tit. XXIII, §§ 301-05; Quinault Indian Nation v. Grays Harbor County, 310 F.3d 645 , 647 n. 1 (9th Cir.2002) (an ad valorem tax is imposed on the value of property). The Tribes have, since 1987, imposed the annual tax (currently 4%) on BN, which paid it from 1987 to 1999.