Burlington Northern R. Co. v. Blackfeet Tribe of Blackfeet Indian Reservation

• Decision Date: 18 March 1991
• Docket Number: 88-4429,Nos. 88-4428,s. 88-4428
• Citation: 924 F.2d 899
• Parties: BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff-Appellant, v. The BLACKFEET TRIBE OF the BLACKFEET INDIAN RESERVATION; Blackfeet Tribal Business Council; Blackfeet Tax Administration Division; Earl Old Person, Chairman; Archie St. Goddard, Vice-Chairman; Marvin Weatherwax, Secretary; Eloise C. Cobell, Treasurer, Defendants-Appellees. BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff-Appellant, v. FORT PECK TRIBAL EXECUTIVE BOARD; Fort Peck Tribal Tax Commission; Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation; Kenneth E. Ryan, Tribal Chairman; Paula Brien, Tribal Secretary/Accountant, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 899

924 F.2d 899

BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff-Appellant, v. The BLACKFEET TRIBE OF the BLACKFEET INDIAN RESERVATION;

Blackfeet Tribal Business Council; Blackfeet Tax

Administration Division; Earl Old Person, Chairman; Archie

St. Goddard, Vice-Chairman; Marvin Weatherwax, Secretary;

Eloise C. Cobell, Treasurer, Defendants-Appellees.

BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff-Appellant, v. FORT PECK TRIBAL EXECUTIVE BOARD; Fort Peck Tribal Tax

Commission; Assiniboine & Sioux Tribes of the Fort Peck

Indian Reservation; Kenneth E. Ryan, Tribal Chairman;

Paula Brien, Tribal Secretary/Accountant, Defendants-Appellees.

Nos. 88-4428, 88-4429.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 8, 1990.

Decided Jan. 25, 1991.

As Amended March 18, 1991.

Michael E. Webster, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana, for plaintiff-appellant.

Reid Peyton Chambers, Sonosky, Chambers & Sachse, Washington, D.C., Jeanne S. Whiteing, Whiteing, Thompson & White, Boulder, Colo., for defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before KOELSCH, BROWNING and BEEZER, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

Burlington Northern Railroad brought suit against the Blackfeet, Assiniboine and Sioux Tribes ("Tribes"), their governing bodies and various tribal officials, seeking a declaration that the Tribes lacked sovereign power to tax Burlington Northern's on-reservation rights of way, and an injunction against the imposition of such taxes. ¹ The district court denied the Tribes' motion to dismiss on the ground of sovereign immunity, but granted the Tribes' motion for summary judgment on the merits. We grant dismissal of the Tribes and the governing bodies of Tribal officials acting in their official capacities as immune from suit. We affirm the grant of summary judgment.

I

In late 1886 and early 1887, the United States and the Tribes entered into an agreement creating the Blackfeet, Fort Peck and Fort Belknap Reservations, substantially as they are today. This agreement was ratified and codified by Congress on May 1, 1888, 25 Stat. 113 ("Act of 1888"). Article VIII of the agreement, incorporated in the statute, provides:

It is further agreed that, whenever in the opinion of the President the public interests require the construction of railroads, or other highways, or telegraph lines, through any portion of either of the separate reservations established and set apart under the provisions of this agreement, right of way shall be, and is hereby, granted for such purposes, under such rules, regulations, limitations, and restrictions as the Secretary of the Interior may prescribe; the compensation to be fixed by said Secretary and by him expended for the benefit of the Indians concerned.

Art. VIII, 25 Stat. at 115-16.

The parties agree that in 1887, after the agreement was signed but before its ratification, Congress granted Burlington Northern's predecessor-in-interest right of way through what would become the Fort Peck Reservation, occupied by the Assiniboine and Sioux Tribes. See Act of February 15, 1887, 24 Stat. 402 ("Act of 1887"). Pursuant to Sec. 4 of the Act, the Secretary of the Interior fixed the terms and conditions of the right of way and the railroad paid the required compensation. The parties further inform us that in 1980 Burlington Northern's predecessor was granted a similar right of way across the Blackfeet Reservation.

In late 1986 the Blackfeet Tribe imposed a tax on all non-exempt possessory interests within the boundaries of the Blackfeet Reservation. In early 1987 the Assiniboine and the Sioux Tribes imposed a tax on all non-exempt utility property within the boundaries of the Fort Peck Reservation. Both taxes were approved by the Secretary of the Interior in 1987. Both apply by their terms to Burlington Northern's rights of way. Burlington Northern challenges both.

II

The Tribes contend this suit is barred by the Tribes' sovereign immunity. ² We decide this issue de novo. See Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989).

Indian tribes and their governing bodies possess common-law immunity from suit. They may not be sued absent express and unequivocal waiver of immunity by the tribe or abrogation of tribal immunity by Congress. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S.Ct. 1670, 1676-77, 56 L.Ed.2d 106 (1978). Neither exception applies here. ³

But sovereign immunity does not extend to officials acting pursuant to an allegedly unconstitutional statute. Ray v. Atlantic Richfield Co., 435 U.S. 151, 156-57 n. 6, 98 S.Ct. 988, 993-94 n. 6, 55 L.Ed.2d 179 (1978); Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 690 & n. 22, 69 S.Ct. 1457, 1461 & n. 22, 93 L.Ed. 1628 (1949); Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908). No reason has been suggested for not applying this rule to tribal officials, and the Supreme Court suggested its applicability in Santa Clara Pueblo, 436 U.S. at 59, 98 S.Ct. at 1677. We strongly implied, without deciding, that Ex parte Young does apply to tribal officials in Chemehuevi Indian Tribe v. Calif. Bd. of Equalization, 757 F.2d 1047, 1051-52 (9th Cir.), rev'd in part on other grounds, 474 U.S. 9, 106 S.Ct. 289, 88 L.Ed.2d 9 (1985) and California v. Harvier, 700 F.2d 1217, 1218-20, 1220 n. 1 (9th Cir.1983). We now reach the issue, and conclude that tribal sovereign immunity does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law. Harvier, 700 F.2d at 1221, 1224 (Norris, J., dissenting). Accordingly, tribal officials are not immune from suit to test the constitutionality of the taxes they seek to collect. Tenneco Oil Co. v. Sac and Fox Tribe of Indians, 725 F.2d 572, 574 (10th Cir.1984); Wisconsin v. Baker, 698 F.2d 1323, 1332-33 (7th Cir.1983).

The Assiniboine and Sioux Tribes concede this. The Blackfeet Tribe contends their officials are not amenable to suit, relying on United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir.1986), and Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479-80 (9th Cir.1985). But Yakima and Hardin hold only that tribal immunity extends to tribal officials acting in their representative capacity and within the scope of their valid authority. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. at 695, 69 S.Ct. at 1464 ("if the actions of an officer do not conflict with the terms of his valid statutory authority, then they are the actions of the sovereign [which] ... cannot be enjoined or directed") (emphasis added); accord Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir.1983); United States v. Oregon, 657 F.2d 1009, 1012 n. 8 (9th Cir.1982). ⁴

III

We turn to the merits. "[T]he power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status." Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 102 S.Ct. 894, 901, 71 L.Ed.2d 21 (1982) (quoting Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152, 100 S.Ct. 2069, 2080, 65 L.Ed.2d 10 (1980)). Burlington Northern contends the Tribes lacked the power to impose the challenged taxes because: (A) the rights of way are not on trust lands, (B) Burlington Northern's activities within the boundaries of the reservations do not significantly involve the Tribes, and (C) the Tribes have been divested of their sovereign power to tax. We address each contention in turn.

A

The Acts of 1874 and 1888 set aside reservation lands for the "use and occupation" of the Tribes. Burlington Northern argues this phrase limits the Tribes' rights to those directly related to use and occupation of the land, and this interest is not sufficient to support the right to tax. As the Supreme Court has long held, however, "the right of occupancy with all its beneficial incidents [is] ... as sacred as the fee." United States v. Shoshone Tribe of Indians, 304 U.S. 111, 115, 58 S.Ct. 794, 797, 82 L.Ed. 1213 (1938); accord United States v. Santa Fe Pac. R.R., 314 U.S. 339, 345, 62 S.Ct. 248, 251, 86 L.Ed. 260 (1941); Mitchel v. United States, 34 U.S. (9 Pet.) 711, 745, 9 L.Ed. 283 (1835). Although the United States technically "owns" reservation lands, holding them in trust for the Tribes, see, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 175, 109 S.Ct. 1698, 1707, 104 L.Ed.2d 209 (1989), the Tribes retain "beneficial ownership." See Shoshone Tribe, 304 U.S. at 116-18, 58 S.Ct. at 797-98. The Tribes' interest includes all rights normally associated with "fee simple absolute title," id. at 117, 58 S.Ct. at 798, and may be diminished only by clear expression of congressional intent. See, e.g., County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247-48, 105 S.Ct. 1245, 1258-59, 84 L.Ed.2d 169 (1985).

No intent to transfer the Tribes' interest in the land except as necessary for use as a right of way is reflected in the grants to Burlington Northern. ⁵ As earlier noted the right of way across the Blackfeet and Fort Peck Reservations was granted by Congress in the Act of 1887. As Burlington Northern itself argues, the language of the Act of 1887 ⁶ is substantially similar to that found in the Act of March 3, 1875, 18 Stat. 482, which granted railroads rights of way across public lands other than lands within Indian reservations. The Supreme Court has held the latter act "clearly grants only an easement, and not a fee," Great N. Ry. Co. v. United States, 315 U.S. 262, 271, 62 S.Ct. 529, 532, 86 L.Ed. 836 (1942)--conveying no "more than a right of passage." Id. at 275, 62 S.Ct. at 534. The reasons upon which the Supreme Court relied apply equally to the Act of 1887. The Act of 1887, like the ...