Tribal Amici Support Accountability for Corporate Wrongdoers Who Violate Tribal Sovereignty
Sixteen Tribal Nations across Washington, Oregon, Idaho, and Montana and the Affiliated Tribes of Northwest Indians (ATNI), represented by the Native American Rights Fund, championed Tribal sovereignty and supported the Swinomish Indian Tribal Community (Swinomish) with an amicus curiae (friend of the court) brief before the U.S. Court of Appeals for the Ninth Circuit in Swinomish v. BNSF Railway Co. In 2024, the U.S. District Court for the Western District of Washington ruled that BNSF Railway Co. (BNSF) had repeatedly and knowingly violated an easement with Swinomish regulating rail traffic across the Swinomish Indian Reservation. The district court ordered BNSF to disgorge nine years of ill-gotten profit gained as a direct result of that wrongdoing.
“Businesses need clear signals that violating tribal sovereignty for profit won’t be tolerated and that corporations must uphold the terms of the contracts, leases, and easements they sign, especially those they sign with Tribal Nations,” said NARF Blaustein Fellow Malia Gesuale.
BNSF’s business model depends on effective partnerships with Tribal Nations that grant the railroad company easements across their lands. Repeatedly violating the land rights and sovereign interests of Tribal Nations weakens that business model.
Tribal Nations generate revenue through various means, including negotiating easements across Tribal lands with corporations like BNSF. That income supports Tribal services such as education, health, and infrastructure. But other uses for Tribal land also bring benefits to Tribal Nations: conserving natural and scenic resources helps sustain the lifeways and culture of Native people and supports recreation and sporting businesses. Like all sovereign governments, Tribal Nations balance economic development with their responsibilities to safeguard community health and to preserve irreplaceable natural and cultural resources.
“Tribal leaders carefully balance sovereign interests to negotiate agreements that determine how a corporation may enter or operate on Tribal land. The agreements are legally binding, and BNSF broke their agreement for years. Tribal Nations and organizations support Swinomish in this fight and in consistently applying the principle that wrongdoers shouldn’t be able to keep their ill-gotten gains.” said NARF Staff Attorney Wesley James Furlong.
Swinomish’s easement agreement with BNSF set rail traffic limits that allowed BNSF to operate on Tribal land at a level calibrated to maintain natural resource abundance and sustain community and cultural health. Swinomish filed its lawsuit in 2015 after BNSF began repeatedly violating the easement terms in 2012. BNSF continued trespassing and violating easement terms while litigation was ongoing. The federal district court ordered BNSF to turn over $394 million of ill-gotten profit as disgorgement. BNSF now challenges that order on appeal to the Ninth Circuit, forcing Swinomish to continue fighting to protect its sovereign interests.
“The risk of doing business would become untenable for Tribal Nations should the Ninth Circuit set a precedent of allowing BNSF to keep profits generated via intentional trespass,” said NARF Staff Attorney Morgan E. Saunders. “Without sufficient legal deterrents corporations would have no reason to abide by the law nor to honor the terms of agreements they sign with any business partner, Tribal or not.”
The Tribal Nations that filed the amicus brief include:
- Coeur d’Alene Tribe,
- Confederated Salish and Kootenai Tribes,
- Confederated Tribes and Bands of the Yakama Nation,
- Confederated Tribes of the Colville Reservation,
- Confederated Tribes of the Umatilla Indian Reservation,
- Jamestown S’Klallam Tribe,
- Kalispel Tribe of Indians,
- Lower Elwha Klallam Tribe,
- Lummi Nation,
- Muckleshoot Indian Tribe,
- Nez Perce Tribe,
- Northern Cheyenne Tribe,
- Skokomish Indian Tribe,
- Spokane Tribe of the Spokane Reservation,
- Suquamish Indian Tribe of the Port Madison Reservation, and
- Tulalip Tribes
The 16 Tribal Nations were joined by ATNI, which represents over fifty Northwest Tribal Nations from Alaska, California, Idaho, Oregon, Montana, and Washington.
