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BURLINGTON SANTA FE v. ASSINIBOINE, SIOUX TRIBES

No. 01-35681.

323 F.3d 767 (2003)

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.

United States Court of Appeals, Ninth Circuit.

Filed March 17, 2003.

Attorney(s) appearing for the Case

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.

Before BEEZER, GOULD, and BERZON, Circuit Judges.

Opinion by Judge BERZON; Concurrence by Judge GOULD.

OPINION

BERZON, Circuit Judge.

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...

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