Sixteen Tribal Nations across Washington, Oregon, Idaho, and Montana, along with the Affiliated Tribes of Northwest Indians (ATNI), have taken a stand in support of the Swinomish Indian Tribal Community in their legal battle against BNSF Railway Co. The case is currently before the U.S. Court of Appeals for the Ninth Circuit. The Native American Rights Fund (NARF) represents these tribes as they submit an amicus curiae brief to uphold tribal sovereignty.
In 2024, the U.S. District Court for the Western District of Washington found that BNSF Railway Co. had repeatedly violated an easement agreement with Swinomish by regulating rail traffic across their reservation. As a result, BNSF was ordered to relinquish nine years' worth of profits obtained through these violations.
Malia Gesuale, NARF Blaustein Fellow, stated: “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.”
The relationship between BNSF and Tribal Nations relies on effective partnerships that grant easements across tribal lands. Violations like those committed by BNSF threaten this business model and undermine tribal land rights.
Tribal Nations generate revenue from such agreements to fund essential services including education and health infrastructure. Additionally, preserving natural resources is crucial for sustaining cultural practices and supporting recreational activities.
Wesley James Furlong, NARF Staff Attorney, remarked: “Tribal leaders carefully balance sovereign interests to negotiate agreements that determine how a corporation may enter or operate on Tribal land...BNSF broke their agreement for years.”
U.S. courts determined that BNSF knowingly breached its right-of-access agreement with Swinomish. The company is now appealing a court order to return $394 million in profits earned improperly.
Morgan E. Saunders from NARF commented: “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.”
The following tribes filed the amicus brief:
- 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
- Tulalip Tribes
These 16 Tribal Nations are joined by ATNI which represents over fifty Northwest Tribal Nations from Alaska, California, Idaho, Oregon, Montana, and Washington.
