# Opposition Brief — Estate of Red Wolf v. Burlington Northern Railroad

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1110

## Text

(3) Supreme Court, US.

No. 99-1521 FILED

: IN THE

Supreme Court of the United Statasy>

iwi sinnenianini —

ESTATES OF RED WOLF AND BULL TAIL, VALERIE RED WOLF,
GLADYS RED WOLF, RANDY RED WOLF, DORRIE BULL TAIL
AND DEWEY BULL TAIL,

Petitioners,
Vv.
BURLINGTON NORTHERN RAILROAD COMPANY,
Respondent.

On Petition For Writ Of Certiorari to the
United States Court of Appeals '
for the Ninth Circuit

BRIEF IN OPPOSITION OF BURLINGTON
NORTHERN RAILROAD COMPANY

THEODORE A. LIVINGSTON CHARLES G. COLE
MICHELE ODORIZZI Counsel of Record
DANIEL G. HILDEBRAND SHANNEN W. COFFIN
MAYER, BROWN & PLATT STEPTOE & JOHNSON LLP
190 South LaSalle Street 1330 Connecticut Avenue, N.W.
Chicago, Illinois 60603 Washington, D.C. 20036
(312) 782-0600 (202) 429-6270
GARY L. CROSBY GEORGE C. DALTHORP
BURLINGTON NORTHERN MICHAEL E. WEBSTER RAIL-
ROAD Co. NEIL G. WESTESEN

3800 Continental Plaza CROWLEY, HAUGHEY,
777 Main Street HANSON, TOOLE & DIETRICH
Fort Worth, Texas 76102-5384 490 North 31st Street, Suite 500
(817) 352-2369 Billings, Montana 59101

(408) 252-3441

Attorneys for Burlington
Northern Railroad Company

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

a)

ND

RULE 29.6 CORPORATE DISCLOSURE

Pursuant to Rule 29.6, respondent states that Burlington
Northern Railroad Company, now The Burlington Northern and
Santa Fe Railway Company, is a wholly-owned subsidiary of
Burlington Northern Santa Fe Corporation, a publicly held com-
pany.

(i)

TABLE OF CONTENTS

Page

BPR SO PRCT ENED ccsassnssssscscsssinssscidenaseosssves i\

COUNTERSTATEMENT OF THE CASE.................. l
I. Statement of Relevant Facts..............0..000.. a

M. — WRUIINPET PIIIOOEY os cncsscccenesscsccsssssccsessesenss 2

REASONS FOR DENYING THE WRIT.................... 7

I. THE NINTH CIRCUIT'S RULING ON
TRIBAL COURT JURISDICTION DOES

NOT MERIT FURTHER REVIEV ............. 7
A. The Court of Appeals Followed the General

Rule of Montana and Strate .............000.005. 8
B The Tribal Road Is Irrelevant In This

ERT AMER ae ANE OP ee Re 10

C. The Statutory Issue Presented by the Peti-
tion Is Not Worthy of Certiorari............... 12

Il. THE NINTH CIRCUIT'S EXHAUSTION
ANALYSIS DOES NOT MERIT FURTHER
IIIT fovei st hdica chetibasisachintceniesdcanitapimiinansant +

fil. PETITIONERS’ CLAIM THAT THEY LACK
AN ADEQUATE REMEDY IN STATE OR
FEDERAL COURT DOES NOT MERIT RE-
TT tiekceatiiailstiadicbeicacigsbhaciicldh banenitiShasin deiicilaks 17

I Sieliin2 isd lotic ccndisddsnitnghcasudanbasiannsnapoienins 19

(iii)

1V
TABLE OF AUTHORITIES |
CASES Page |
A-1 Contractors v. Strate, 76 F.3d 930 (8th Cir.
1996) (en DANC) ...........660- Lissdssnakitaaedaneadtnabiaiiins 16
Allstate Indem. Co. v. Stump, 191 F.3d 1071 (9th
Re SI GiidiisasiainsGientnniclidanticetlomanheninandlabadeacwide 15
Basil Cook Enters. v. St. Regis Mohawk Tribe, 117
Fc UN cals BT Dacssiiaslensacacaebidiianapciannincenicies 15
Brendale v. Confederated Tribes & Bands of
Yakima Indian Nation, 492 U.S. 408 (1989) .... 8

Burlington Northern R.R. v. Red Wolf, 106 F.3d
868 (9th Cir. 1997), vacated and remanded, 522

ses I OA sche ahaccsdceSiacnsshatennasiltlalesdiaecabecieed 3-4
Burlington Northern R.R. vy. Red Wolf, 522 U.S.

Be re Mairispcinecnanceaissontehemuiiontantesetbiossinens 4-5
County of Lewis v. Allen, 163 F.3d 509 (9th Cir.

ee Oe NE isacsccntstsccaneccainteeieagenionentbaan HAL
El Paso Natural Gas Co. v. Neztsosie, 526 U.S.

Fe iia inkatioisuaecacsaeeeunaicianannentmeauiniaaialan 10, 16-17
Hornell Brewing Co. v. Rosebud Sioux Tribal

Court, 133 F.3d 1087 (8th Cir. 1998)... 16
lowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9

GE Bi accsaipsairesnchsnnsounseiacaatinsnaaesiaiindliniananaibdets 14-15

Kerr-McGee Corp. v. Farley, 115 F.3d 1498 (10th

Cir. 1997), cert. denied, 522 U.S. 1090 (1998) 17
Lambert v. Ryozik, 268 Mont. 219, 886 P.2d 378

CPE ch csnviasstsoncxeachiteaeiiebctanebanninebadaatdeda miata 18
Montana v. Gilham, 133 F.3d 1133 (9th Cir. 1998) 18
Montana v. King, 191 F.3d 1108 (9th Cir. 1999). 7, 11
Montana vy. United States, 450 U.S. 544 1981).... passim
National Farmers Union Ins. Cos. v. Crow Tribe,

WEF Uh eke Se Be sacsteina nannies icetiaattletnaeatins 14-15
Nevada v. Hicks, 196 F.3d 1020 (9th Cir. 1999) .. 15

Vv
TABLE OF AUTHORITIES - Continued
Page

Ninigret Dev. Corp. v. Narragansett Indian We-
tuomuck Hous. Auth., No. 99-1828, 2000 U.S.
App. LEXIS 5069 (Ist Cir. Mar. 22.
TAIN isccinscerniacriassicauiuanicnninstamusdiealibaeidigdaiaie 1S
South Dakota yv. Bourland, 508 U.S. 679 (1993)..... 8, 13
Strate v. A-1 Contractors, 520 U.S. 438 (1997) ...

passim
Three Affiliated Tribes v. Wold Eng'g, P.C., 467

C35. 050 6 FO csi 18
United States v. Soldana, 246 U.S. 530 (1918) .... 10
Williams v. Lee, 358 U.S. 217 (1959)............ eee 9-10

Wilson v. Marchington, 127 F.3d 805 (9th Cir.
1997), cert. denied, 523 US. 1074

CIID sicinencsinsepaihictscancadsaeiiaiosacneatiaieininaaa 7, 11, 16, 18
ACTS
Act of February 12, 1889, 25 Stat. 660................. 1,13
STATUTES
WAU BSA FAYG viicccnrcicinimmnmmemcamenanen 12
25 UBL. 8 Ui inners “ee

COUNTERSTATEMENT OF THE CASE

The petition attacks an application of this Court's decision in
Strate v. A-1 Contractors, 520 U.S. 438 (1997), to factual cir-
cumstances strikingly similar to those at issue in Strate. In
Strate, a tribal court asserted jurisdiction over non-Indian defen-
dants involved in a traffic accident on a state highway. This
Court held that the tribal court had no jurisdiction because the
federal right-of-way grant for the highway had deprived the
Tribes of the power to exclude those nonmembers from the res-
ervation. In this case, the Ninth Circuit held that tribal courts
had no jurisdiction over a nonmember railroad because a feder-
ally-granted right-of-way had deprived the Crow Tribe of the
power to exclude the railroad from the reservation.

This straightforward application of Strate does not raise an
issue worthy of review. The petition does not demonstrate any
conflict between the decision below and even a single decision
of any other circuit or state supreme court. It does not show a
conflict with an opinion of this Court. Nothing in the petition or
in the supporting brief of the Crow Tribe Suggests a need for
revisiting the unanimous Strate decision. Accordingly, the
petition should be denied.

I. Statement of Relevant Facts

Respondent Burlington Northern Railroad (“BN”) is an inter-
State rail carrier and is not a member of the Crow Tribe. Asa
part of its nationwide rail system, it transports freight on a
federally-granted right-of-way through the Crow Indian Reser-
vation (“Reservation”). Pet. App. at5a. The right of way was
granted by Congress in 1889. It authorized BN’s predeces-
sor-in-interest, the Big Hom Souther Railroad, to construct.
Operate and maintain a railroad through the Reservation. Act of
February 12, 1889, 25 Stat. 660. By statute, the right-of-way
extends “seventy-five feet in width on each side of the central
line of said railroad.” Act § 2, 25 Stat. 660.

-

In 1993, two members of the Crow Tribe were killed when
their automobile was struck by a BN train operating on its right-
of-way. The-accident occurred within the exterior boundaries
of the Reservation at the intersection of BN’s right-of-way and
a gravel road. See Pet. at 7-8. At the time of the accident, the
automobile in which the decedents were riding was entirely
within BN’s 150-foot-wide right-of-way. /d.; Pet. App. at Sa-
6a. Neither the decedents nor their heirs, who are the petitioners
in this case, had any contractual relationships with BN. Nor did
the Tribe have a contractual relationship with BN. See Pet.
App. at 26a.

II. Procedural History
A. The Tribal Court Trial

Shortly after the accident, five heirs of the decedents (“the
Red Wolf heirs’’) filed suit in Crow Tribal Court, seeking com-
pensation for wrongful death and other damages. BN contested
tribal jurisdiction from the outset but, in the days before Strate,
was unsuccessful in obtaining pre-trial relief in either federal or
tribal court. Burlington Northern R.R. v. Arneson, No.
CV94-156-BLG-JDS, Memorandum and Order (D. Mont. Nov.
22, 1994).

In January 1996, trial was conducted in Crow Tribal Court
before a jury composed entirely of tribal members. Non-
members, who constituted 25% of the population of the reserva-
tion, were excluded from the jury. Evidence admitted at trial
showed that, at the time of the accident, the 17-year-old driver
of the automobile had a blood alcohol level of 0.18 and the
driver's mother, one of the passengers, had a blood alcohol level
of 0.32 — both well in excess of the legal limit. Nevertheless,
after hearing eight days of testimony, the tribal court jury an-
nounced its verdict, finding BN 100 percent liable for wrongful

3

death and awarding $50 million in compensatory damages to
each of the five heirs, for a total award of $250 million. '

B. Red Wolf I

Immediately following entry of judgment, BN asked the tribal
court to stay enforcement of the judgment without requiring BN
to post a supersedeas bond. The tribal court denied that motion
and ordered BN to post bond for the entire amount of the judg-
ment, $250 million, plus interest.

Because this ruling threatened to deprive BN of subsequent
federal court review of the tribal court judgment, BN sought
immediate relief in the U.S. District Court for the District of
Montana. The district court granted BN’s motion for a prelimi-
nary injunction, preventing enforcement of the tribal court
judgment during the pendency of any review proceedings in
tribal or federal court. The district court then stayed any further
proceedings in federal court pending exhaustion of BN’s reme-
dies in tribal court. On appeal, a divided panel of the Ninth Cir-
cuit reversed, concluding that BN had not fully exhausted all
tribal court remedies. Red Wolf I, 106 F.3d at 871.7

' The trial had other serious procedural defects. For instance, during jury
voir dire, a tribal appellate court judge made a personal appeal to the venire
panel, in which he told the panel, **[bJodies, in the past, bodies are scattered
along the railway. Now, this is the day ...."” See Burlington Norther R.R.
v. Red Wolf. 106 F.3d 868, 872 (9th Cir. 1997) (citation omitted) (Kleinfeld,
J., dissenting) (“Red Wolf I’*), vacated and remanded, 522 U.S. 801 (1997).
This and other infirmities led one federal judge to characterize the trial as
falling within the “*wave the bloody shirt’ genre.” /d. at 872 (citation omit-
ted) (Kleinfeld, J., dissenting).

*Subsequently, the Red Wolf heirs filed a motion in Crow Tribal Court,
unilaterally requesting that the court reduce its previous $250 million judg-
ment to $25 million. The Crow Tribal Court entered an order reducing the
judgment to $25 million on August 19, 1997.

4
C. Strate v. A-1 Contractors

While Red Wolf] was pending before the Ninth Circuit, this
Court granted certiorari in Strate v. A-1 Contractors. BN filed
a brief amicus curiae in Strate, explaining the circumstances of
this case to the Court. BN argued that the Tribes could not ex-
ercise adjudicatory authority over the traffic accident in Strate
because the Tribes did not have the power to exclude nonmem-
bers from the federal right-of-way on-which the accident oc-
curred. See Strate v. A-] Contractors, No. 95-1872, Bnef of
Amici Curiae The American Trucking Associations, Inc., The
American Automobile Association and Burlington Northern
Railroad Company at 11-12 (filed Dec. 1996). The Red Wolf
proceeding was also discussed at oral argument before this
Court in Strate.

In a unanimous decision, this Court held that because the
Tribes had lost their “gatekeeping right” over the right-of-way,
tribal courts could not adjudicate matters arising from the con-
duct of nonmembers proceeding along the highway. Strate, 520
U.S. at 456. In addition, although exhaustion of tribal court
remedies was not at issue in Strate, the Court nevertheless
included a footnote explaining that exhaustion was not required
in a case like Strate. The Court explained that the exhaustion
rule “must give way” where “it is plain that no federal grant
provides for tribal governance over nonmembers’ conduct on
land covered by Montana's main rule.” Id. at 459-60 n.14.

D. Red Wolf II

BN subsequently petitioned this Court for review of the Ninth
Circuit's Red Wolf J decision in light of Strate, arguing that,
under Strate’s footnote 14, the railroad should be allowed to
seek permanent federal relief against the exercise of jurisdiction
by the Crow courts without further exhaustion of tribal reme-
dies. The Court granted BN’s petition for certiorari, vacated the
panel decision and remanded the case to the Ninth Circuit for
further consideration in light of Strate. Burlington Northern

£
J

R.R. v. Red Wolf, 522 U.S. 801 (1997). The Ninth Circuit, in
turn, remanded the case to the district court “for further consid-
eration in light of Strate.” Burlington Northern R.R. v. Red
Wolf, No. 96-35254, Order (9th Cir. Nov. 13, 1997).

On remand, the district court granted BN’s motion for
summary judgment, holding that the tribal court did not have
jurisdiction over claims arising out of the accident. The court
concluded that, as in Strate, the Crow Tribal Court could not
exercise jurisdiction over BN since the accident occurred on
BN's federally-granted right-of-way, over which the Tribe “*‘re-
tained no gatekeeping right.” Pet. App. at 23a (citation omit-
ted). The court further held that no federal statute expressly au-
thorized the Tribe to exercise jurisdiction over nonmembers. /d.
at 24a-25a. It also found that this case failed to satisfy either of
the exceptions to the general rule against tribal jurisdiction over
nonmembers set forth in Montana v. United States, 450 U.S.
544 (1981). Pet. App. at 25a-27a. The district court held that
tribal court exhaustion was not required under footnote 14 of
Strate. Id. at 27a-28a. Finally, the court denied a motion to
intervene filed by the Crow Tribe.

The Red Wolf heirs appealed to the Ninth Circuit. A panel of
that Court, comprised of Judges Sidney R. Thomas and Marga-
ret M. McKeown and Justice Byron R. White (sitting by desig-
nation), unanimously affirmed. See Pet. App. at la-15a. Rely-
ing on Strate, the panel reasoned that the railroad’ s congression-
ally granted right-of-way was the equivalent of alienated, non-
Indian land. It rejected the argument that petitioners make here
— that there would be tribal court jurisdiction if the gravel road
on which the decedents were travelling was a tribal road. There
was no dispute that the accident occurred entirely within BN’s
right-of-way. Under these circumstances, the court held that the
status of the road on which the decedents were travelling “does
not alter the jurisdictional calculus” because “{u]nder the con-
gressionally-granted right-of-way, the Tribe had reserved no

6

power to exclude the Railroad from the reservation, nor to exer-
cise dominion or control over the right of way.” Pet. App. at 9a.

The court also declined plaintiffs’ invitation to find that
Congress had authorized tribal jurisdiction by directing the
railroad to conduct its operations on the right-of-way with “due
regard” for the Indian's interests. /d. at 10a. “Tribal jurisdiction
over nonmembers on land subject to Montana’s main rule re-
quires express congressional authorization.” /d. The “due
regard” language in the federal right-of-way statute, the court
reasoned, does not constitute such express authorization. /d.

The Ninth Circuit rejected plaintiffs’ reliance on the two
exceptions to Montana's main rule. First, the court concluded
that no “consensual relationship” existed between BN and the
Tribe as a result of the right-of-way grant. That grant, the court
reasoned, was “a transfer of a property interest that does not
create a continuing consensual relationship between a tribe and
the grantee.” /d. at 1la-12a. Second, the court held that tribal
court jurisdiction was not necessary under Montana's second
exception because the interests of injured tribal members could
be adequately protected by suits in state and federal court. /d.
at 13a.

Finally, relying on Strate’s footnote 14, the Ninth Circuit
agreed with the district court that tribal exhaustion was not
required under the circumstances of the case. “Because tribal
courts plainly do not have jurisdiction over this controversy
pursuant to Montana and Strate, the Railroad was not required
to exhaust its tribal remedies before proceeding in federal
court.” Pet. App. at I4a.

Petitioners subsequently sought rehearing of the panel's
decision. Their petition was denied on January 6, 2000. No
suggestion for rehearing en banc was filed.

7
REASONS FOR DENYING THE WRIT

I. THE NINTH CIRCUIT’S RULING ON TRIBAL
COURT JURISDICTION DOES NOT MERIT
FURTHER REVIEW

The petition asks this Court to review the Ninth Circuit's °
conclusion that tribal courts lack civil jurisdiction over a rail-
road grade-crossing accident on a federally granted right-of-way.
This ruling is wholly unremarkable. It is consistent with a long
line of Supreme Court decisions, beginning with Montana v.
United States, 450 U.S. 544, and culminating in Strate. It also
comports with post-Strate jurisprudence among the lower
courts. See, ¢e.g., Wilson v. Marchington, 127 F.3d 805 (9th Cir.
1997), cert. denied, 523 U.S. 1074 (1998); County of Lewis v.
Allen, 163 F.3d 509 (9th Cir. 1998) (en banc); Montana v. King,
19] F.3d 1108 (9th Cir. 1999).

Petitioners do not identify any decision — federal or state, trial
or appellate — that is in conflict with the decision of the Ninth
Circuit in this case. They do not point to a single judge who has
articulated a conflicting viewpoint, on the same or even similar
facts. They do not even attempt to make any showing that the
federal or state courts are having trouble applying this Court's
decision in Strate.

On the contrary, their principal complaint seems to be that
Strate itself is incorrect. Petitioners criticize this Court's Strate
decision, suggesting that it “significantly confused” the state of
the law with respect to tribal jurisdiction over non-Indians and
established an “ambiguous” rule. Pet. at 7, 8. However, the
unanimous opinion in Strate is not ambiguous at all; on the con-
trary, it represents the logical conclusion of nearly two decades
of decisions of this Court.

8

A. The Court of Appeals Followed the General Rule
of Montana and Strate.

In Montana, this Court established a general rule for the
exercise of tribal power over non-Indians. Authority “beyond
what is necessary to protect tribal self-government or to control
internal relations is inconsistent with the dependent status of the
tribes, and so cannot survive without express congressional
delegation.” 450 U.S. at 564. The Court rejected the Crow
Tribe's attempt to cast tribal jurisdiction over nonmembers in
strict territorial terms, instead concluding that a tribe lacks such
power whenever it gives up its right to exclude nonmembers
from the reservation. The Montana Court held the Tribe could
not regulate hunting and fishing by nonmembers on non-Indian
fee lands, because the Tribe lacked “the sole nght to use and
occupy the reserved land, and, implicitly, the power to exclude
others from it... .” Id. at 554.

The power to exclude continues as the touchstone of tribal
jurisdiction over nonmembers in this Court's post-Montana de-
cisions. In South Dakota v. Bourland, 508 U.S. 679 (1993), the
Court emphasized, “[rJegulatory authority goes hand in hand
with the power to exclude.” /d. at 691 n.11. “Congress...
eliminated the Tribe's power to exclude non-Indians from these
lands, and with that the incidental regulatory jwrsdiction for-
merly enjoyed by the Tribe.” /d. at 689. See also Brendale v.
Confederated Tribes & Bands of Yakima Indian Nation, 492
U.S. 408, 423-24, 444-45 (1989). In Strate, the Court held that
a tribal court could not exercise jurisdiction over a nonmember
with respect to a traffic accident occurring on a federally-
granted right-of-way within the reservation, because the Tribes

* The Montana Court recognized exceptions to its general rule against
tribal jurisdiction for a consensual relationship or where necessary to protect
the political integrity, economic security, or health and welfare of the tnbe,
but found both exceptions inapposite. Jd. at 565-66.

9

had given up their right to exclude nonmembers from these trust
lands. The right-of-way could therefore be “align[ed] . . with
land alienated to non-Indians,” such as the fee lands in Mon-
tana. 520 U.S. at 456."

In this case, the Ninth Circuit did little more than apply these
consistent holdings to the closely analogous facts before it.
“There is no principled distinction to be made between the
jurisdictional analysis applicable to a congressionally-granted
highway right-of-way and a congressionally-granted railroad
right-of-way. In each case, Congress has acted within its ple-
nary power to bestow rights to a parcel of land upon one party,
thereby limiting the nights of another to the same land.” Pet.
App. at 8a. The petition effectively asks the Court to revisit this
well-settled area of law.

The cases cited do not provide a reason to do so. The Crow
Tribe suggests a need for this Court to “harmonize its decision
in Strate” with Williams v. Lee, 358 U.S. 217 (1959). But this
Court harmonized those two cases in Strate itself. Strate rea-
soned that Montana, not Williams, “is the pathmarking case
concerning tribal civil authority over nonmembers.” 520 U.S. at
445. Following Montana, Strate characterized Williams as a

* The Crow Tribe points to statements in Strate that the highway right-of-
way was granted to the State of South Dakota and that it was open to the
public. See Crow Tribe Br. at 12. These facts were relevant in Srrate only
because the loss of the power to exclude arose from the State's opening of the
highway to members of the general public. See 520 U.S. at 455-56. Those
facts are not relevant where, as here, the non-Indian defendant has obtained
directly from Congress a night to pass through the reservation. Indeed. in
Montana itself, the Court held that the Crow Tribe lacked the power to
regulate non-Indians on privately-owned fee lands. which were neither given
to a governmental entity nor open to the public. See Montana, 450 U.S. at
548, 559.

10

case “fitting within [Montana's] first exception.” See Strate,
520 U.S. at 457 (citing Montana, 450 U.S. at 565-66). °

Nor does United States v. Soldana, 246 U.S. 530 (1918),
which discussed the Tribe's title to the right-of-way, provide a
reason to re-examine Srrate. BN has not here challenged the
tribe's title to the land, but only whether the Tribe can exercise
jurisdiction over BN’s conduct occurring on that right-of-way.
In Strate, the Court recognized that the lands at issue belonged
to the Tribes, but held that they would be governed by Mon-
tana’s main rule because the federal right-of-way made them
“equivalent, for nonmember governance purposes,” to Montana
land. See Strate, 520 U.S. at 454. That holding does not need
to be re-examined here.

B. The Tribal Road Is Irrelevant In This Case

Petitioners insist that this case should be accepted for review
because the accident occurred at an intersection of BN’s right-
of-way with a subsequently-constructed tribal read. In Strate,
this Court reserved (but did not decide) the issue of tribal court
jurisdiction over an accident that occurred entirely on a tribal
road. See 520 U.S. at 442 (“We express no view on the govern-
ing law or proper forum when an accident occurs on a tribal
road within a reservation.”’). But, as both lower courts recog-
nized, this case does not squarely present the “tribal road” issue.

Rather, as the petitioners have admitted, this case involves an
accident that occurred entirely within the bounds of a federal
right-of-way. The Ninth Circuit reasoned that the critical in-
quiry was not whether the deceased tribal members had a right
to be where they were at the time of the accident, but rather

* Similarly. El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999).
did not modify the scope of the Montana rule. That case involved a commer-
cial lease transaction occurring on tribal land and hence implicated the first
Montana exception. Here, by contrast, there is no voluntary commercial
relationship between BN and the Tribe. Pet. App. at 26a.

1]

whether the Tribe could exclude the non-member railroad from
the reservation. Pet. App. at 9a. (“Under the congressionally-
granted right-of-way, the Tribe had no reserved power to ex-
clude the Railroad from the reservation . ...”). This reasoning
was consistent with each of the Ninth Circuit's post-Strate
decisions, including a rare, unanimous en banc decision in
County of Lewis v. Allen, 163 F.3d at 514 (tribe could not exer-
cise jurisdiction over sheriff permitted by federal law to enter
reservation). See also Wilson v. Marchington, 127 F.3d 805;
Montana vy. King, 191 F.3d 1108. The Ninth Circuit thus prop-
erly concluded, “[a]s in Strate, the Tribe had lost the ‘right of
absolute and exclusive use and occupation’ of the right-of-way,
regardless of intersecting tribal roads.” Pet. App. at 9a (citation
omitted).°

Petitioners also suggest that tribal authority is enhanced here
because state and local law enforcement officials lacked author-
ity over the accident investigation. This theory was not timely
raised in the courts below.’ In any event, this argument is
neither legally nor factually sound. As a legal matter, the Strate
Court assumed that tribal police would have some authority “to
patrol roads within a reservation, including rights-of-way made
part of a state highway, and to detain and tum over to state

° The District Court also pointed out that creating a separate jurisdictional
rule for intersections of federal rights-of-way with tribal roads would inject
confusion into an area previously governed by a bright-line rule. Pet. App.
at 24a (“Strate does not suggest a different rule for incidents occurring at the
intersection of federally granted rights-of-way and tribal roads. This Court
sees no value in creating such a rule in an already fact-sensitive area of the
law, nor is there the factual basis for creating such a rule here.”).

” Petitioners did not raise these assertions of fact before the district court.
They were not mentioned until oral argument (after merits briefing) in the
Court of Appeals. On petition for rehearing, petitioners presented portions of
the tribal court transcript that had not been presented in the District Court.
Petitioners now improperly seek to rely on these ambiguous excerpts for their
arguments about the role of the state police.

i

officers nonmembers stopped on the highway for conduct violat-
ing state law.” Strate, 520 U.S. at 456 n.11. But that assump-
tion had no bearing on the Court's analysis of tribal court juris-
diction. Furthermore, the record in this case demonstrates that
state officials — specifically, a Montana state trooper — did, in
fact, investigate the accident at issue. See Petition for Panel Re-
hearing of Appellants at Ex. A (filed Nov. 19, 1999). Contrary
to the Petition (at 4), this was not an “all tribal” incident, both
because it involved a nonmember of the tribe and because it oc-
curred within a federal right-of-way. ®

In short, this is not the appropriate case to decide the issue
reserved in Strate — whether the Tribe might exercise jurisdic-
tion over an accident that occurred wholly on a road over which
the Tribe retained the power to exclude a nonmember. This
case, instead, turned on a much narrower issue — whether a
railroad right-of-way should be treated the same as a highway
right-of-way under Strate. Following the consistent rationale of
Montana and Strate, the Ninth Circuit correctly held that there
was no principled distinction between the two federal rights-of-
way. That decision does not warrant review.

C. The Statutory Issue Presented by the Petition Is
Not Worthy of Certiorari

Petitioners also ask this Court to review whether certain
federal statutory language authorizes tribal jurisdiction. How-

* Indeed. it is not even clear from the record whether the road intersecting
BN’s right of way is. in fact. a “tribal road. The road was created upon ap-
plication of a non-Indian resident pursuant to federal law. which authorizes
the Secretary of the Interior to grant rights-of-way for “opening and estab-
lishment of public highways. in accordance with the laws of the State or Ter-
ritory in which the lands are situated, through any Indian reservation... .”
25 U.S.C. § 311 (1994). See Ex. A to Statement of Genuine Issues of Estates
of Red Wolf and Bull Tail in Response to BN’s Motion for Summary Judg-
ment (D. Mont. filed Feb. 12, 1998). Thus, the gravel road itself appears to
rest on a federally granted right-of-way.

13

ever, the petition overlooks a crucial requirement repeatedly
stated in decisions of this Court — that the authorization for the
exercise of tribal authority over nonmembers must be express.
“[A]bsent express authorization by federal statute or treaty,
tribal jurisdiction over the conduct of nonmembers exists only
in limited circumstances.” Strate, 520 U.S. at 445 (emphasis
added). Accord Montana, 450 U.S. at 564 (tribal jurisdiction
over nonmembers “cannot survive without express congres-
sional delegation”); Bourland, 508 U.S. at 695 n.15 (“after
Montana, tribal sovereignty over nonmembers ‘cannot survive
without express congressional delegation"”’) (citation omitted).

As petitioners admitted below, the 1889 Act creating the
right-of-way does not contain an express authorization: “[I]n
1889, Congress did not ‘expressly’ grant authority to the Crow
Tribal Courts to adjudicate and enforce Indian rights with re-
spect to the right-of-way ....” Estates of Red Wolf v. Burling-
ton Northern R.R., Brief of Appellants Red Wolf et al. at 22 (9th
Cir.). Indeed, the Red Wolf heirs conceded that “the “tribal
court system’ did not even exist in 1889.” Jd. at 21. While the
Act expressly refers to the role of the federal government in
regulating the right of way, see Act § 3, 25 Stat. 660 (“in accor-
dance with such rules and regulations as the Secretary of the
Interior may make”), it is silent with respect to tribal jurisdic-
tion over incidents on the right-of-way. See Pet. at 45a.

Nor does the Indian Tribal Justice Support Act provide the
requisite express authorization of tribal jurisdiction over non-
members. That legislation is nothing more than an appropria-
tion of funds to support the establishment of tribal courts. It
cannot be read as a blanket grant of adjudicatory power to the
tribes. It says nothing about the exercise of tribal jurisdiction

_over nonmembers. Not surprisingly, then, when the United

States offered the Indian Tribal Justice Support Act as a basis
for jurisdiction in Strate, see No. 95-1872, Brief of United
States as Amicus Curiae Supporting Petitioners at 3-4, this
Court rejected it. See 520 U.S. at 456 ( petitioners could “refer

14
to no treaty or statute authorizing [the Tribes] to entertain high-
way-accident tort suits of the kind’ commenced against the

nonmember defendants). No further review of this issue is
necessary.

II. THE NINTH CIRCUIT’S EXHAUSTION ANALY-
SIS DOES NOT MERIT FURTHER REVIEW

The petition also seeks review of the Ninth Circuit's ruling on
exhaustion of tribal court remedies. However, the petition fails
to mention the critical statement in Strate on which the Ninth
Circuit's holding was predicated. This Court not only decided
the issue of tribal court jurisdiction over non-Indians on federal
rights-of-way, but also directed that federal courts adhere to that
ruling without requiring exhaustion:

When, as in this case, it is plain that no federal grant pro-
vides for tribal governance over nonmembers’ conduct on
land covered by Montana’s main rule, it will be equally
evident that the tribal courts lack adjudicatory authority
over disputes arising from such conduct . . . . Therefore,
when tribal-court jurisdiction over an action such as this
one is challenged in federal court, the otherwise applica-
ble exhaustion requirement must give way, for it would
serve no purpose other than delay.

520 U:S. at 459-60 n.14 (citations omitted).

The petition’s failure to accept this statement is fatal to its
exhaustion argument. For example, petitioners complain that
“federal courts, rather than tribal courts, are empowered to
decide, in the first instance, whether tribal jurisdiction is
‘plainly’ lacking.” Pet. at 11-12. However, that is exactly the
import of this Court's footnote in Strate.

Similarly, the Tribe complains of a “direct conflict” between
Strate and this Court's earlier decisions in National Farmers
Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985), and Jowa
Mut. Ins. Co. vy. LaPlante, 480 U.S. 9 (1987). See Crow Tribe

15

Br. at 20. But Strate extensively addressed both cases and
derived from them an exhaustion rule that was “prudential,”
rather than “an unyielding requirement.” See 520 US. at 449
n.7, 451-53. The exception recognized in the Strate footnote
comported with that prudential approach, because it excused
compliance where exhaustion would “serve no purpose other
than delay.” Jd. at 459-60 n.14.

Petitioners lament “the apparent demise of the doctrine of
exhaustion of tribal court remedies.” Pet. at 3. But the Ninth
Circuit's own exhaustion jurisprudence belies that claim. Ina
pair of cases decided shortly before oral argument in this case,
the Ninth Circuit relied on the prudential exhaustion rule to
dismiss actions brought in federal court. See Allstate Indem.
Co. v. Stump, 191 F.3d 1071, 1073 (9th Cir. 1999); Nevada v.
Hicks, 196 F.3d 1020, 1029-30 (9th Cir. 1999). Other courts of
appeals have required exhaustion of tribal remedies in cases
decided after Strate. See Basil Cook Enters. y. St. Regis Mo-
hawk Tribe, 117 F.3d 61 (2d Cir. 1997): Ninigret Dev. Corp. v.
Narragansett Indian Wetuomuck Hous. Auth., No. 99-1828,
2000 U.S. App. LEXIS 5069 (Ist Cir. Mar. 22, 2000).

Petitioners’ principal argument on the merits of the exhaus-
tion question is that the tribal court should have had the oppor-
tunity to pass on numerous “facts” of which it had taken judicial
notice. But those facts were placed in the record in the federal
district court, and neither the district court nor the court of
appeals court found them relevant to the jurisdictional calculus.
The reason is obvious: Strate itself did not find similar facts
relevant to its determination of tribal jurisdiction.

For example, Strate rejected as a matter of law the argument
that the risk of personal injury or the need to provide a forum for -
such claims could justify jurisdiction over a nonmember. “Un-
doubtedly, those who drive carelessly on a public highway
running through a reservation endanger all in the vicinity, and
surely jeopardize the safety of tribal members. But if Montana's

16

second exception requires no more, the exception would se-
verely shrink the rule.” 520 U.S. at 457-58. The Court rea-
soned instead that Montana's second exception is implicated
only where there is a threat to “‘the right of reservation Indians
to make their own laws and be ruled by them.”” /d. at 459 (cita-
tion omitted).

In this respect, the Strate Court did not adopt the reasoning of
the Eighth Circuit en banc majority in A-/ Contractors v. Strate,
76 F.3d 930 (8th Cir. 1996) (en banc), on which the Crow Tribe
relies. Crow Tribe Br. at 24. This Court's reasoning requires
the same result for a tribal plaintiff as for a nontribal plaintiff.
Indeed, Strate did not analyze the jurisdictional question based
on the identity of the injured plaintiff, but rather on whether the
defendant was a member of the tribe. See Strate, 520 US. at
442 (“This case concerns the adjudicatory authority of tribal
courts Over personal injury actions against defendants who are
not tribal members.”’).

Thus, in the wake of Strate, courts of appeal have consistently
rejected arguments that tribal jurisdiction is necessary to provide
a remedy for tort claims, even when asserted by tribal members.
See, e.g., Hornell Brewing Co. v. Rosebud Sioux Tribal Court,
133 F.3d 1087, 1093 (8th Cir. 1998); County of Lewis, 163 F.3d
at 515; Wilson, 127 F.3d at 815. As the U.S. Court of Appeals
for the Eighth Circuit has noted, **‘[i]f providing a forum for its
members would be a sufficient reason to confer subject matter
jurisdiction upon the tribal courts when a tribal member is a
party to a lawsuit, it follows that the tribal courts would always
have civil subject matter jurisdiction over non-Indians."’’ Hor-
nell, 133 F.3d at 1093 (citation omitted).

Federal courts have had little trouble applying the bright-line
test announced in Strate’s footnote 14.’ Thus, there is no reason

* This Court did not detract from footnote 14 when it recognized complete
preemption as yet another exception to the exhaustion principle in E/

17

to return ta the issue and pievide furtner undiysis of Strate’s
exhaustion rule.

Ill. PETITIONERS’ CLAIM THAT THEY LACK AN
ADEQUATE REMEDY IN STATE OR FEDERAL
COURT DOES NOT MERIT REVIEW

Finally, petitioners ask this Court to consider as an independ-
ent ground for certiorari the question whether alternative state
and federal forums remain open to them. Specifically, petition-
ers claim that state or federal jurisdiction is foreclosed in this
case because the Crow Tribe has not consented to that jurisdic-
tion pursuant to federal law. Pet. at 14-15 (citing 25 U.S.C. §
1326).

Even if that issue had some merit — which it does not — this
case would not be the proper vehicle for addressing it. Petition-
ers have never sought to assert their personal injury claims in
either state or federal court. It would make no sense for this
Court to consider here the question of whether jurisdiction
would be available if and when petitioners choose to do so.
Moreover, it is doubtful that this Court would want to consider
this question in a context in which the parties who would pre-
sumably benefit from state or federal jurisdiction — the petition-
ers — are actually arguing against such jurisdiction.

In any event, the Ninth Circuit correctly concluded that peti-
tioners would have an alternative forum in state or federal court.
The federal statute relied upon by petitioners does not serve as
an independent bar to state or federal jurisdiction where the
tribes lack such jurisdiction in the first instance. It only sets the
terms for concurrent state jurisdiction where the tribe already

Paso. See 526 U.S. 473. Moreover, this Court's decision in E/ Paso elimi-
nates any purported conflict based on Kerr-McGee Corp. v. Farley. 115 F.3d
1498 (10th Cir. 1997), cert. denied. 522 U.S. 1090 (1998). since this Count
reversed the parallel decision of the Ninth Circuit (which had followed Kerr-
McGee) and thereby effectively overruled Kerr-McGec.

18

has jurisdiction. See Three Affiliated Tribes v. Wold Eng’g,
P.C., 467 U.S. 138, 150 (1984) (“Nothing in the language or
legislative history of Pub. L. No. 280 indicates that it was meant
to divest States of pre-existing and otherwise lawfully assumed
jurisdiction.”). The Crow Tribe itself concedes here that the
federal statute at issue “does not preclude state courts from
exercising jurisdiction when a tribe or its members ‘seeks rather
than contests’ state court jurisdiction to resolve a dispute be-
tween a tribal member and nonmember, because tribal self-
government is not impeded in such a case.” Crow Tribe Br. at
18.

Thus, “[t]his Court . . . repeatedly has approved the exercise
of jurisdiction by state courts over claims by Indians against
non-Indians, even when those claims arose in Indian country.”
Wold Eng’g, 467 U.S. at 148 (citing cases); Strate, 520 U.S. at
459 n.14 (where tribal court jurisdiction is lacking, “state or
federal courts will be the only forums competent to adjudicate
those disputes”). Numerous federal and state courts have ap-
plied this principle. See Wilson, 127 F.3d at 815; Montana v.
Gilham, 133 F.3d 1133, 1139 n.6 (9th Cir. 1998) (tribal mem-
bers have the “same rights as are accorded any other person’”
in state or federal court); Lambert v. Ryozik, 268 Mont. 219,
222, 886 P.2d 378, 380 (1994) (Montana courts “have repeat-
edly affirmed the right of Indian plaintiffs to sue non-Indians in
state court as a right guaranteed to all Montana citizens... .”’).
The Ninth Circuit properly rejected petitioners’ spurious claim
that they lack an alternative forum to hear their claims.

19

CONCLUSION

For the foregoing reasons, the petition should be denied.

THEODORE A. LIVINGSTON
MICHELE ODORIZZI
DANIEL G. HILDEBRAND
MAYER, BROWN & PLATT
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600

GARY L. CROSBY

BURLINGTON NORTHERN
ROAD Co.

3800 Continental Plaza

777 Main Street

Fort Worth, Texas 76102-5384

(817) 352-2369

April 14, 2000

Respectfully submitted,

CHARLES G. COLE

Counsel of Record
SHANNEN W. COFFIN
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 429-6270

GEORGE C. DALTHORP
MICHAEL E. WEBSTER RAIL-
NEIL G. WESTESEN
CROWLEY, HAUGHEY,

HANSON, TOOLE & DIETRICH
490 North 3 Ist Street, Suite 500
Billings, Montana 59101
(408) 252-3441
Attorneys for Burlington

Northern Railroad Company

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0754%3A3. Public record. Not legal advice.