Crow Reservation
Opposite
Sides of the Track
Story by Jessica
Wambach
Photos by
Noelle Teixeira
Dorrie Bulltail was 14 years old the day her mother and sister
came to her aunt’s home on the Crow Reservation to ask if
Dorrie wanted to go for a ride.
A train like this one hit the 1975 Pontiac
carrying Regina Bulltail, Beverly Nadine Red Wolf and
Chantina Red Horse at this crossing on Nov. 22, 1993,
killing all three of them.
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Always the more defiant of the two sisters, she decided to stay
behind.
It was Nov. 22, 1993. Dorrie’s older sister, Regina, and
her distant cousin Chantina were in class at Lodge Grass High School.
Her mother, Beverly Nadine Red Wolf, had been drinking and arrived
at the school early in the morning to take Regina and Chantina
out of class so that they could drive her the 35 miles to her home
in Ranchester, Wyo.
After stopping to ask Dorrie to join them, Regina drove the 1975
Pontiac toward the main railroad crossing in the center of town.
Dorrie never saw them alive again.
A malfunction had caused the crossing gates to remain down even
when a train was not approaching. Cars were backed up on both sides
of the gate, waiting for access to the highway.
With her mother in the passenger seat and 15-year-old Chantina
in the middle, Regina turned the car around. She headed out on
a gravel road that crossed the tracks a mile south of town.
As they crossed the tracks where no gate controlled the crossing
their car got stuck when, as they turned, a wheel caught on a rail
that the family says protruded above grade.
Beverly, Regina and Chantina stayed in the car and tried
to rock it back and forth to free it. The Burlington Northern engineer
said he saw the car move, but it stalled again, this
time squarely on the tracks. By the time he threw the emergency
brake it was too late to even slow the train.
The women probably never saw the train coming.
Coming around the corner at 41 miles an hour, the southbound BN
train struck the car, pushing it 500 yards down the track before
it spun free.
Dewey Bulltail sued Burlington Northern
for the wrongful death of his former wife and daughter.
The tribal court awarded him and his family $250 million,
but after years of court litigation and numerous appeals
they eventually settled for $1 million.
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Seventeen-year-old Regina was killed on impact. Her mother was
dead before she arrived at the hospital in nearby Crow Agency.
Chantina, who was smashed between them when the train hit, suffered
massive head injuries and died in a Billings hospital the next
day.
Regina and Dorrie’s father, Dewey Bulltail, was driving home
from work. After seeing he could not get home by way of the main
crossing, he headed south of town.
People who recognized his truck were able to stop him before he
got to the crossing, but he saw the remnants of the car. He soon
learned his daughter and his ex-wife were dead.
Dewey’s brother, Wales Bulltail, remembers his brother’s
reaction.
“He told me it was something that words cannot explain,” Wales
says. “There’s no words for it.”
And the words that Dewey offered his daughter Dorrie later that
morning, telling her her mother and sister were gone, took days
to sink in.
“Afterward my dad came over,” Dorrie says. “I thought
he was just saying that they left town. I didn’t know until
everybody started coming over to our house.”
It’s been more than 10 years since the accident. About once
an hour, a train rolls down those same tracks, over that same crossing.
The Bulltail family is still recovering from that fateful day.
But the sovereignty of the Crow Indian Nation may never recover.
A lawsuit heard in Crow Tribal Court ended with a $250 million
verdict. But it also let loose a series of legal challenges that
struck a body blow to the Crow tribe’s already limited jurisdiction
over non-Indians on reservation lands.
It wasn’t the first time Indians had been killed at railroad
crossings on the Crow Reservation, and it wouldn’t be the
last. But the Bulltail family was stunned.
Nadine was 52 years old and she and Dewey had been separated for
about seven years. Dewey to this day doesn’t want to talk
about that time. But his girlfriend at the time, Mary Lynne Hobill,
knows how much the family struggled.
“I think it’s been harder on Dorrie than anyone,” says
Mary Lynne, who shares her home with Dorrie, now 25 years old. “I’ll
never forget the first day that we went to the mortuary. She was
in shock. When we went, Dorrie didn’t go in at first. And
then when she did go in, and they brought her out, she got in the
back seat of my car… She was white as a ghost. She was shaking
so hard that the car was shaking. And I’ve never forgotten
that.
“There is so much pain on the reservation that after a while
it becomes a part of your life. But when you’re 13 years
old, it’s not a part of your life yet. You haven’t
gotten tough.”
Dewey seemed to be the tough one.
His cowboy hat shadows the face that shows the wear of his 60 years.
But it can’t hide the pain that surfaces when he’s
asked to talk about the accident that robbed him of his family.
He can’t.
Mary Lynne remembers the double funeral held later in the week
of the accident. When it was Dewey’s turn to kneel at Regina’s
graveside and pray, she saw his raw emotion.
“That’s when Dewey really kind of broke down,” she
says. “I
think it was the hardest part for him.”
But shortly after that, the Bulltails tried to put it behind them.
“They never mentioned their names, never talked about them,” Mary
Lynne says. “It was like they were just gone.”
Dewey and Dorrie moved out of Lodge Grass, first to Billings. Dewey’s
brother Wales soon moved into the family’s old home, the
house his mother had bought decades before. It sits about 400 yards
from the railroad tracks, just north of where Nadine and Regina
were killed.
Dorrie had nightmares and changed schools four times.
Slowly they let it fade away — until nearly a year later,
when Dewey was approached by an attorney and sacrificed the pain
of a haunting memory for what he thought would be some sort of
justice.
Dorrie
Bulltail was only 14 when an accident killed her mother
and sister. She was a plaintiff in the lawsuit against
Burlington
Northern. Now 25, and with a child of her own, Hunter,
the years and the pain have blocked out much of what happened.
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The attorney told him that he thought the family had a good case
for a wrongful death suit — something never before attempted
in Crow Tribal Court.
“He was very angry. He knew why it happened — that
it happened because of a bad crossing, and he thought that a lawsuit
had to
be filed in order to do something,” Mary Lynne says. “He
loved his daughters, and it really hurt him when he lost Regina
Ann. And I’m sure he still had feelings for Nadine.”
After a few months of deliberation, Dewey agreed to file a lawsuit,
despite protests from some family members.
“There were others who thought the lawsuit never should have
been filed,” Mary Lynne says. “They thought they should
just let it go.”
To Wales, that wasn’t acceptable.
“There’s no value on human life,” he says. “But
money is the white man’s God, you know? They hurt us. If
we took one of their lives, it wouldn’t hurt them. If we
took some of their money, then they would be hurt. That’s
the way it is.”
Dewey and Dorrie were named as representatives of Nadine and Regina’s
estates, along with Nadine’s three children from a previous
marriage — Valerie, Randy and Casper Red Wolf. Due to disputes
about who should be named as Chantina’s heir, her immediate
family was not initially a part of the suit.
Because the accident happened on the reservation, Dewey never considered
taking the lawsuit anywhere but to tribal court.
But Burlington Northern, which declined to comment for this story,
immediately went to federal court in Billings, seeking an off-reservation
trial. The court ruled that the railroad first had to exhaust its
remedies in tribal court, since the accident happened on the reservation.
In January 1996, the trial began in Crow Tribal Court.
The family had a long list of attorneys, most from Montana. Naturally,
Burlington Northern brought in corporate lawyers from around the
country.
“That saddest thing about that whole trial was that there
were all these big shots from the railroad,” Mary Lynne remembers. “I
thought they had a real bad attitude, like it didn’t matter.”
Despite the fact Regina had a blood alcohol level that made her
legally drunk, most observers thought that the six-member jury
would rule in favor of Dewey and his family.
But no one expected the decision announced after just a few hours
of deliberation. Jurors awarded each of the five plaintiffs in
the case $50 million for the lives lost.
It was one of the highest civil judgments to ever be awarded in
the United States.
“The jury, when they came in with that huge dollar amount,
I mean everybody was just shocked,” Mary Lynne says. “I
for one was crying. I couldn’t believe it. But then the attorneys
said to us right away, ‘We’re in trouble, because it’s
too much.’ He said to us, ‘They’re gonna fight
this tooth and nail.’”
And they did.
Burlington Northern didn’t wait long before issuing a press
release. BN-Santa Fe Senior Vice President Jeffrey Moreland said, “We
are shocked and astounded by the verdict, which we firmly believe
is wholly unjustified and the product of proceedings that lacked
any semblance of fundamental fairness.”
Railroad representatives argued, among other points, that it was
unfair that some courtroom conversations were conducted entirely
in the Crow language, a right reserved by Crow court regulations.
BN also claimed that the jury was unfairly selected and said several
jurors were related to the plaintiffs. The family denies this,
as does Ron Arneson, chief judge in Crow Tribal Court at the time.
“Their picking it apart in the white man’s way is saying ‘We
want white men on the jury,’” Arneson says.
Arneson believes jurors were venting their frustration over the
fact that 25 people had died at railroad
crossings on the Crow Reservation within the previous nine years.
He also felt racial tension.
“I knew the judgment was incorrect,” he says. “I
also knew that the reaction of 150 years of history was in it.”
Arneson had the authority to reduce the award to a more “reasonable” amount.
Many people suggested an award of $25 million, but Arneson didn‘t
make the move.
“If I had it to do over again, I certainly would have done
that,” Arneson
says. “I was very upset. I knew it was extremely problematic.
I knew I had the authority to change that amount, but to do that
in Indian country as a white judge was impossible.”
In the press release, Moreland announced Burlington Northern’s
intentions “to pursue vigorously an appeal to the Crow Tribal
Appellate Court and, if unsuccessful there, to ask the federal
district court in Billings, Mont., to set the verdict aside on
the grounds that the tribal court lacked jurisdiction and that
Burlington Northern’s due process rights were violated.”
Burlington Northern refused to post a bond while it appealed the case and the
Crow appeals court refused to consider modifying the judgment until a bond was
posted. The door was open for Burlington Northern to challenge the tribe’s
jurisdiction over the case in the federal courts.
In an 1889 treaty with the federal government, the Crow tribe had agreed to let
railroad tracks be built through reservation lands on the condition that the
railroad transport Indians and any of their livestock or belongings anywhere
on the reservation at their request for free.
Although Burlington Northern had long before ceased to meet its end of that bargain,
railroad officials argued that the 75-foot right-of-way space that extended from
each side of the tracks was their treatied land, and any event that took place
within that space was under their jurisdiction. Therefore, they said, any suit
should have been filed in a state court.
Crow
Tribal Chairman Carl Venne believes there is no justice for natives
in the federal court system and thinks the way to ensure the tribal
court’s sovereignty
is to have better-
educated judges.
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Before Federal Judge Jack Shanstrom in Billings, the railroad brought a suit
against the estates and Ron Arneson as the representative of the tribal court.
In a harsh blow to the tribe’s sovereignty, Shanstrom granted an injunction
that said Burlington Northern would not have to pay the $250 million judgment.
“That was the inevitable outcome,” Arneson says in retrospect. “Indians
don’t have a right in federal court. The only place we’ve ever found
any consideration is in the Congress.”
Still, the tribal court and the estates’ representatives appealed the case
to the Ninth Circuit Court of Appeals, which reversed Shanstrom’s ruling
and — upholding tribal sovereignty — said BN had to first exhaust
all its appeals in tribal court.
The Crow Court of Appeals was slow to act. Two years after the verdict the Crow
appellate court still had not heard Burlington Northern’s case.
“At the time, our court system was weak and the appellate court never convened,” Wales
says.
But it was in the United States Supreme Court where Burlington Northern’s
win was sealed.
Just before Burlington Northern v. Red Wolf reached the Supreme Court for consideration,
the court had decided a similar case out of the Fort Berthold Indian Reservation
in North Dakota.
In Strate v. A-1 Contractors, the Supreme Court ruled that the tribe did not
have civil jurisdiction in a suit brought against a non-tribal member involved
in a car accident on a federally owned highway right-of-way on the reservation.
The court said jurisdiction in civil suits against non-Indian defendants on non-Indian
fee lands was held by state or federal courts.
In light of the Strate decision, the Supreme Court sent Burlington Northern v.
Red Wolf back to the lower court for reconsideration.
The Crow tribe filed to join the suit, knowing a challenge to tribal sovereignty
was at stake.
One of the attorneys for the tribe was Majel Russell, a Crow woman born and raised
on the reservation who had been working for years in Indian law.
“All these cases actually sort of end up getting to the point that there’s
damage to the tribe,” Russell says. “The Crow tribal appeals court
should have gotten busy on the case. We could have fixed the case and not jeopardized
any further loss of jurisdiction.”
But it was too late. Judge Shanstrom denied the tribe’s motion to intervene
in the lawsuit and determined that the federally granted right-of-way Burlington
Northern had on its Crow Reservation tracks should be classified in the same
way as the state-owned right-of-way in the North Dakota case. The State of Montana,
not the Crow tribe, had jurisdiction.
The Bulltail family felt the years and the emotion they had invested in the case
had been for nothing.
The only positive result they claim came of it is they say all of the roughly
70 railroad crossings on the Crow Reservation were repaired.
“I think the jury originally came back with that big amount of money because
they
thought maybe the railroad would pay attention and do something,” Mary
Lynne Hobill says. “They did fix the crossings. But the people that were
left behind, they didn’t treat them right.”
Tribal members weren’t surprised. But they were frustrated. The debate
about the proper way to stop the limitation of sovereignty in the federal court
system continues because the Crow Reservation has been the site of several major
sovereignty-limiting court cases.
In 1981, the Supreme Court decided Montana v. U.S., saying for the first time
that the tribe did not have jurisdiction over hunting and fishing rights of non-Indians
on fee lands owned by non-Indians on the reservation. The case stemmed from conflicts
along the Bighorn River. The land under the water was held in trust for the tribe
by the U.S. government, but the court said that the tribe could not prohibit
non-Indian hunting and fishing along the riverbed, which was accessible at many
points from land owned by non-Indians.
Four years later, the Supreme Court decided National Farmers Union Insurance
Companies v. Crow Tribe. A Crow teenager had been hit by a motorcycle and injured
on Lodge Grass school grounds and his guardian sued the school district, an extension
of the state. The Supreme Court eventually heard the federal case brought by
the school’s insurance company, which argued that the tribe lacked civil
jurisdiction over the matter. The court agreed.
The Supreme Court decided Montana v. Crow Tribe just a few months after the Burlington
Northern decision was rendered. It said that the state, and not the tribe, had
the right to tax a utility company on fee lands leased from the tribe by a mining
company.
These cases affect the sovereignty of reservations across the nation, but because
they started in a Crow tribal court, their impact is personal there.
Russell points to a weak and dependent court system as the widening crack in
Crow sovereignty’s shield.
“Sovereignty really depends on the strength of the tribal court,” she says. “You‘re
going to have to have a professional court that provides a professional, unbiased
judge.”
To do that, she says, will take a strong leader for the tribe, one who believes
fiercely in Indian rights and sees the wisdom she does in the new tribal constitution
of 2000, which calls for an independent court system.
“I still really believe that this document can empower the tribe,” she says.
But she doesn’t see the right leader standing before the tribe.
Russell argues that Crow tribal leaders have amended or ignored the parts of
the new constitution that address changes in the court system.
Tribal Chairman Carl Venne, who has been in office a little more than a year,
denies any part in that. He says his vision is of a court system in which the
tribal judges are better informed and must hold law degrees in order to run for
judicial jobs. He eagerly awaits the next round of elections.
“For me there’s no real justice for Indian people in the federal system,” Venne
says. “It’s scary to me as a native. What we have to do is create
our own laws to create our own sovereignty. We‘re far enough along and
educated enough to run our own business.
“The problem ain’t the Indian tribe. The problem is people responsible are
not doing their job here. So as a leader, I can speak up. I’m here to build
bridges between the non-Indian and the Indian communities in the state of Montana.”
Wales Bulltail agrees that leadership is the key to a solid tribal government
that can prevent future jurisdiction limitations. He just doesn’t agree
that Venne is building those bridges he talks about.
“It can be done,” he says. “It takes a good leader to do things
like that. We don’t have that here.”
For the Bulltails, sovereignty has taken on a new and bitter meaning.
Regina
Bulltail, 17, Chantina Red Horse, 15, and Beverly Nadine Red Wolf, 52,
were
killed when a Burlington Northern train hit
their car. All three are buried in the Lodge Grass Cemetery. Above,
center, is a hand-crafted stone that marks Chantina’s grave.
Photos of Regina and Nadine are courtesy of Dorrie Bulltail. |
“The way I know when the train is coming is when the dogs start howling around,” Wales
says. “Deep inside I’ve got a grudge against the train. We’ve
got no use for it, and yet it keeps going through our reservation. It doesn’t
give us any money or any type of service. And they think they have a right-of-way.”
For several years Burlington Northern tried to end the conflict with out-of-court
settlements. But Dewey wouldn’t agree to any of it, until he decided to
take his attorneys’ advice after the last decision.
Mary Lynne remembers lead attorney John Hoyt finally advising Dewey to settle.
“He felt that they didn‘t stand a chance, because it was Native Americans
against the railroad,” she recalls. “And he said, ‘I think
it‘s time to bail out.’”
Dewey finally signed the release papers for a $1 million settlement in 2000.
The years of attorney fees came to more than $500,000. The remaining money was
divided six ways among Dewey, Nadine’s four surviving children, and Chantina
Red Horse’s father, Casey Red Horse.
“They got $80,000 a piece. That’s nothing. It doesn’t take very long
to spend $80,000,” Mary Lynne says. “The only thing they really accomplished
was getting those tracks fixed. And that’s just not right.”
Arneson is saddened when he thinks of the effect the sovereignty limitation had
on the Bulltail family.
“It just has put another arrow in their heart,” he says.
Today, Dorrie Bulltail has a 20-month-old son, Hunter. He’s just starting
to speak. His first Crow word was iichíile. It means horse, Regina‘s
favorite animal.
And it stirs memories.
“She was goofy. She liked riding horses… I was scared of them,” Dorrie
says as she kisses the baby she wishes her mother and sister could help her raise.
“I’m losing memory of them,” she whispers.
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