Case 1:25-cv-12578-RGS Document 41-1 Filed 10/16/25 Page 15 of 24
In Swinomish Indian Tribal Community v. BNSF Railway , 951 F.3d 1142 (9th Cir. 2020), for example, the Court examined whether a broadly applicable statute regulating railways (the Interstate Commerce Commission Termination Act (“ICCTA”)) repealed portions of an earlier statute that was specific to Indian tribes (the Indian Right of Way Act (“IRWA”)). There, a railroad operator was violating an easement issued under IRWA. The railroad operator argued that the ICCTA repealed certain provisions of IRWA. The Court noted that “[i]n the context of a statute that touches on federal Indian law, such as [IRWA], there is an additional canon of construction: [S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” Id . at 1156 (citation omitted). The Court applied that canon and held that the ICCTA did not repeal the earlier IRWA on several grounds. First, it found that IRWA expressly applied to railroads, and that Congress did not mention or reference rights-of-way on Indian lands when it enacted the ICCTA. Second, it found that IRWA applied to a very specific circumstance—rights-of-way on Indian lands— whereas the ICCTA applied to railroad regulations broadly. In the absence of clear intention by Congress, the Court held that “a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Id . at 1160 (quoting Mancari , 417 U.S. at 550–51). Thus, there is a clear standard by which courts should evaluate whether a broad statute repeals or amends an earlier Indian statute by implication: they must construe ambiguity liberally
treaties and other federal action should when possible be read as protecting Indian rights and in a manner favorable to Indians.” Hagen v. Utah , 510 U.S. 399, 423 n.1 (1994) (Blackmun, J., dissenting) (quoting Felix Cohen, Handbook of Federal Indian Law 221 (1982 ed.)). 15
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