NO. 91-552 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, DEPARTMENT OF REVENUE, Helena, Montana, Plaintiff and Appellant,

ADRIAN BIRD, a/k/a ADRIAN and NORA BIRD, Defendants and Respondents.

APPEAL FROM: DistrictCourt of the ThirteenthJudicial District, In and for the County of Big Horn, The HonorableRussell K. Fillner, Judge presiding.

COUNSEL OF RECORD: For Appellant: Hon. Marc Racicot, Attorney General; Deanne L. Sandholm, Assistant Attorney General, Helena, Montana David W. Woodgerd, Chief Legal Counsel, Department of Revenue, Helena,Montana. For Respondents: James L. Vogel, Attorney at Law, Hardin, Montana. ForAmicus: Dale T. White, Fredericks, Pelcyger & Hester, Boulder, Colorado: forAmicus Curiae Crow Tribe of Indians.

Submitted on Briefs: March 5, 1992

Clerk

### Justice John Conway Harrison delivered the Opinion of the Ccurt. 

### his is an appeal from the District Court of the Thirteenth Judicial ~istrict, State of Montana, in and for the County of Big Horn, the Honorable Russell K. 

### Fillner presiding. We affirm. The issue here is whether the State of Montana may impose its income taxupon amember of the Crow Indian Tribe for incomeearned directly through themining of coalwithin an area adjacent to the Crow Reservation, where the underlying mineral rights (coal) are reserved to the Crow Tribe. The income for which the taxes have been levied was earned during the years 1981 

### through 1984 

### by respondent, Adrian Bird, who was employed as a miner by Westmoreland Resources, Inc. (Westmoreland) to mine coal at the Sarpy Creek Mine facility. The Sarpy CreekMine is on a strip of land located adjacent to the Crow Indian Reservation in eastern Montana. This area was cededby the Tribeto theUnited States Government,but themineral interests, including coal, underlying this ceded strip were, by statute, conveyed to the Crow Indian Tribe. The Crow Tribe subsequently leased the coal in the ceded strip to Westmoreland which engaged in the activity of mining the coal reserves from the ceded strip. During the years at issue, 1981 

### through 1984, 

### Adrian Bird did not pay individual income tax on the income he derived from employment with Westmoreland. On April 29, 1991, 

### the State of Montana, Department of Revenue, filed a complaint requesting a judgment against Adrian Bird for unpaid income taxes plus penalties and interest thereon. The respondents,Adrian and Nora Bird, were served with a summonsand complaint setting forth the years and the amounts owed 

### as follows: Years 

## - Tax Interest Penalties 1981-1984 $8,191.30 $5,292.06 $1,481.27 With the total amount due: $14,964.63 In reply to this complaint,the respondents filed amotion to dismiss on June 24, 1991, noting that the ~istrict Court did not have proper jurisdiction over the Birds; that 

### the court did not have subject matter jurisdiction;and that the complaint failed to state a cause of action. By way of historical background, we note that Westmoreland carried out its mining operation at the Sarpy Creek Mine under a federally-approvedmineral lease entered into with the Crow Tribe 

### in 1972, as amended 

### in 1974. See 

### Crow Tribe v. Montana (9thCir. 1981), 650 F.2d 1104, 1107, (amended (1982), 665 F.2d 1390), cert. denied, 459 U.S. 916 (Crow I); Crow Tribe v. Montana (9th Cir. l987), 819 F.2d 895, summarily aff'd, 484 U.S. 997 (l988), (Crow TI). The Westmoreland mining operation is located within the so

## - called "ceded stripn 

### which is an area adjacent 

### to the Crow Reservation thatwas opened to homesteading pursuant to the Act of 

### April 27, 2904, Ch. 1624, 33 Stat. 352; Crow 

### I, 650 F.2d at 1107; Crow 11, 819 F.2d at 896; see Crow Tribe of Indians v. United States 

### (D. Mont. 1985), 657 F.Supp. 573, 575-79. The 1904 Act authorized the Secretary of the Interior 

### to sell lands within the ceded strip to homesteaders; and as a result of the 1904 Act, "a considerable amount of both 

### the surface and

### mineral estate" within the ceded strip was conveyedtonon-Indians. The coalmined at Westmoreland's Sarpy CreekMine facilitywas not conveyedunder the 1904Act andhas always remained inTribal trust status. Crow I, 650 F.2d at 1107; Crow 11, 819 F.2d at 896. In 1958,Congressacted to restore "undisposed of ceded lands" to the Crow Reservation. It did so in the Act of May 19, 1958,72 Stat. 121,which provided: Title to the lands restored to tribal ownership by this Act shall be held by the United States in trust for the respective tribe or tribes, and such lands are hereby added to and made part of the existing reservations for such tribe or tribes. Crow 11,819 F.2d at 898;quoting 72 Stat. 121 (May 19, 1958). In Crow I and Crow 11, the Ninth Circuit Court of Appeals held that theabove-listedAct restoredthepreviouslyundisposed ofminerals to the Crow Tribe, including the coal underlying the Westmoreland lease. Crow I, 650 F.2d at 1117; also see Crow 11, 819 F.2d at 898. In its order andmemorandum, the District Court noted that the question before it was whether the court had subject matter jurisdiction. It noted that the Tribe,while it asserted that it had ceded the surface area of the Sarpy Creek Mine facility, retained the mineral interests which Westmoreland subsequently leased for production purposes. It is the respondents' contention that the mineral interests

are a part of the Reservation as a Reservation resource and that the individual Indian income derived solely from the Reservation

resources is not subject to individual state income tax. In

### addition, they contend, the State's right to tax a Reservation Indian's individual income, which is derived wholly from a 

### Reservation resource, is preempted by federal law and policy since it is within the exclusive jurisdiction of the federal government and the Tribe itself. The State argues that the right to tax Mr. Bird's income is not preempted by federal law and policy because his income was earned from a private non-Indian company, and that the company's operations are a non-Reservation source of income to Mr. Bird. In light of the foregoing, our inquiry must focus on whether the State's attempted taxation of Adrian Bird's individual income has been preempted. This Court, in LaRoque v. State (1978),178 Mont. 315, 321, 583 P.2d 

### 1059, 1063, quoted from Mescalero Apache Tribe v. Jones (l973),411 U.S. 145, 148, 93 

### S.Ct. 1267, 1270, 36 L.Ed.2d 114, 119,wherein the United States Supreme Court noted: [Albsent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation. 

# . . . LaRome, 178 Mont. at 321, 583, P.2d at 1063. InMcClanahan v. State Tax Commission of Arizona (1973),411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129,theUnited States Supreme Court held that "the Statemay not impose individual income tax on Reservation Indians whose income is earned exclusively on the reservation.'I 

### In McClanahan, the Court held that the tax interferedwith matters which the relevant treaty and statutes leftto the exclusive province of the federal government and the 1ndian Tribe itself. The Court reasoned that a review of the relevant treaty and statute made 

### it clear that the State had exceeded 

### its lawful authority in attempting to impose a tax. McClanahan, 411 U.S. at 173, 93 S.Ct. at 3263, 36 L.Ed.2d at 136. 

### his Court, in LaRocrue, relying on the above authorities, addressed the issue of lrwhether an Indiannot an enrolled member of the tribe on whose reservation he is living, may be taxed by the State for incomeearned on that reservation[.]" LaRome, 178Mont. at 318, 583 P.2d at 1061. This Court concluded, after review of the relevant statutes,that 

### a cessiontoMontana jurisdiction as to taxation of individual income had not occurred. Further, we concluded ''that situs of the activity is the primary factor in determining whether state 

### taxation jurisdiction exists 

# . . . the important factors were the coalescence of situs {reservation)and status (Indian)

# . LaRome, 178 Mont. at 324, 583 P. 2d at 1064. We further note that in Crow I, the ~inth Circuit Court of Appeals determined that the Tribe's mineral resources are f'a 

### component of the reservation land itself.'I Crow I, 650 F.2d at 1117. Therefore, we arenotpersuaded by the State's

### argument that the trial court misapplied 

### the governing law in determining the Sarpy Creek Mine facility 

### is part of the Crow Reservation. In the instant case, the respondent, Adrian Bird, by affidavit,stated that he was an enrolledmember of the Crow Tribe and resided within the boundaries of the Crow Reservation. Further, we note that the State conceded 

### in its brief that itscause of action is an attempt to collect unpaid State income tax from the respondentsduring the time that Adrian Bird was employed mining coal in the ceded strip. As previously determined, the mineral resources on the ceded strip are part of the Reservation, and therefore,we apply the criteria of LaRoaue, Crow I,and 

### Crow to support the holding of the District Court that the State of Montana, Department of Revenue, is without authority to impose individual income tax on the respondent,Adrian Bird. Congress enacted legislation in 1958 restoring to beneficial tribal ownership 10,260.95 acres of vacant and undisposed of lands subject to the 1904Act. Act of May 19, 1958, 72 Stat. 121; 

### Crow I1 657 F.Supp. at 590. The acreage restored under the 1958 Act 

## -, was reduced by 4,900 acres severalmonths later. Act of Aug. 14, 1958, 72 Stat. 575; See Crow 11, 659 F.Supp. at 578. Section 2 of the 1958 Act provided that these landswould be held in trust for the CrowTribeby theUnited Statesand that theywere added to and made a part of the existing Reservation. Although the statute facially restored to tribal ownership only surface lands, it was construed in Crow I1 as also applying to undisposed of mineral rights underlying the deeded area. Crow 11, 657 F.Supp. at 590. The decision of the District Court is affirmed.We concur:April 

### 15,1992 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentby United Statesmail, prepaid,tothe following named:

Hon.MarcRacicot, Attorney General DeanneL. Sandholm,Asst.Atty. General 215N. Sanders,JusticeBldg. Helena,MT 59620 CharlesE.Snyder,Esq. Ste.325,2720Third Ave. No. Billings,MT 59101

DavidW.Woodgerd,Legal Counsel Department of Revenue Mitchell Bldg. Helena,MT 59620 James

### L.Vogel Attorney at Law P.O. Box525 Hardin,MT 59034 DaleT.White Fredericks,Pelcyger &Hester 1881-9thSt.,Ste.216 Boulder,CO 80302

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA