Blackfeet Tribe of Indians v. State of Montana, Director of the Montana Department of Revenue, Glacier County, Montana, and Pondera County, Montana

GOODWIN, WALLACE, Before KEN- NEDY, ANDERSON, FLETCHER, FAR- RIS, PREGERSON, CANBY, BOOCHEV- ER, REINHARDT, NORRIS and Circuit Judges.

FLETCHER, Judge: Circuit scope This case involves the of state au- thority to proceeds tax the of tribal mineral leases, requires that we examine a congressional series of regulat- enactments ing gas tribal land for oil and production.

Between 1932 and the Blackfeet Tribe executed 125 leases authorizing the mining gas of oil and on tribal land located within the Blackfeet Indian Reservation. Approximately 12 of the leases were made authority under the of the Act of February ch. as amended the Act May §§ (codified Stat. 244 at 25 U.S.C. 397-98 (1976)). The balance of the leases were made of the Act of May 11, 1938, (codified §§ (1976)). 396a-396g at 25 U.S.C. All 125 in operation today remain and will gas continue until supply the oil and paid exhausted. The royalties Tribe is cal culated on the gas basis of the amount of produced or oil under the leases. The imposes State of Montana four distinct tax interests, royalty es on the Tribe’s without distinguishing royalties between the col pursuant lected to 1938 Act leases and the royalties collected under 1891 Act leases. §§ See Mont.Code Ann. 15-36-101 to -121 (1981) (Oil Tax); and Gas Severance Mont. §§ (1981)(Re Code Ann. 15-38-101 to -109 Tax); Indemnity source Trust Mont.Code §§ (1981) (Oil Ann. 82-11-131 to -132 Tax); Gas Conservation Mont.Code Ann. §§ (1981) (Oil 15-23-601 to -612 and Gas Collins, Boulder, Colo., Richard B. Tax). Net Proceeds Montana assesses the plaintiff-appellant. against Tribe’s share of all four taxes Missoula, Mont., Maclay, S. Helena Chris producer-lessees, who then deduct it from Tweeten, Gen., Helenea, D. Atty. Asst. royalties payable to the Tribe. Mont., Missoula, Mont., Boggs, Deirdre Department the Solicitor of the defendants-appellees. opinion of the Interior issued an concluding

that Montana was tax pro- entitled to duction of oil and under 1891 Act leas- history from two statutes contains little es, proceeds tax tribal but could explicit guidance, The Pro and resort to Status convention- 1938 Act leases. Tax yields Leases and Gas al “canons construction” inconsist- duction Oil from Lands Under The Fort Peck Tribal ent results.3 Our resolution of this diffi- Act, 84 Interior Dec. Leasing thorough analysis requires 1938Mineral cult issue to assess (1977).1 Montana continued 905 language, purpose the and historical con- royalty interests against the Tribe’s taxes of both schemes. texts 1978, the Tribe all 125 leases. seeking to in court an action federal I filed royal taxation of tribal enjoin Montana’s begin prin We with the well settled 446, court, F.Supp. 507 The ties. district ciple that state taxation of tribal income the summary judgment State entered on the bound from activities carried within Montana, holding 1924 amend of impermissible is aries of the reservation expressly the Act authorized ment to 1891 expressly Congress has unless consented oil production of of state taxation imposition Bryan v. of tax. See lands, 1938 Act left on and that the Indian 373, 2102, County, 96 Itasca 426 U.S. S.Ct. authority undisturbed. 48 L.Ed.2d 710 Moe v. Confederat court affirmed district panel Tribes, A of this 463, ed Salish & Kootenai 425 rehearing ordered a court’s decision. We 1634, (1976). We in to resolve a conflict be en order banc explicit 1924 Act must resolve whether the and our decision in opinion tween the Crow ly consented to the taxes here at issue. Montana, 650 Tribe Indians State in The consent taxation contained of of (9th Cir.1981), amended, 665 1104 F.2d part was of an amendment to the 1924 Act (9th Cir.), denied, F.2d 1390 cert. 28, 1891, 383, February Act of ch. 26 Stat. 916, 230, 103 74 182 S.Ct. L.Ed.2d 794, which was itself an amendment to the 8,1887, February Act of General Allotment appeal argues on Montana 119, Act ch. 24 Stat. 388. The 1924 was imposition of its taxes consented to the providing similar statutes one a series of 29, May 1924. The Tribe con- leasing development non-Indian expressly that the 1924 Act consent- cedes poli Indian lands within context of gas production oil ed to taxation of cies embodied in the General Allotment land, argues that the 1924 Act Indian but See, e.g., Appropriations Act. Act of June 7 repealed by section of implicitly was § 26, 30, 1919, 4, 3, 41 ch. Stat. 31-34 11, May Alternatively, 1938.2 § (codified 25 as amended at U.S.C. 399 argues that the consent taxation Tribe 20, 1922, 347, (1976)); September Act of ch. inapplicable to 1924 Act is found § (codified gov- 42 Stat. 857 at 25 U.S.C. gas under leases of oil and (1976)).4 begins legislative analysis The Our therefore erned Act. The our attention to the canon that 1. Montana that no deference due 3. Tribe calls insists liberally legislation Department Indian is to construed be- the Interior ambiguities favor of Indians and to be resolved position six since 1977 cause rule in their favor. Montana invokes the repeals by implication prior fifty position during contradicts its disfavored, insisting are years. greatly overstates its case. Montana potentially must construe inconsist- courts Only unpublished opinions, one in two give effect. ent statutes so as to both statutes 1966, Department's second in contradict interpretation. See Section III. current infra 3, 1909, Appropriations 4. See also Act of March relies The other decisions on which Montana 781, 263, (codified at 25 U.S.C. ch. 35 Stat. prior to enactment of were either decided 28, 1924, (1976)); April Act of ch. § leasing taxa- statute or concerned the (codified (1976)); § Stat. 111 at U.S.C. prior statutes. See tion of leases issued under April 44 Stat. Act of (codified ch. 84 Interior Dec. 911. (1976)); § at 25 400a U.S.C. (codified at March ch. provides: parts "All Act or of Acts Section 2. generally United § U.S.C. 398a hereby repealed.” Interior, inconsistent herewith are Department of the Federal Indi- States program reflected in General unallotted lands and lands allotted aged ef- and disabled Congress’s Allotment Act of allottees. See Act of Febru- ary 795; it. forts effectuate Cohen, supra, F. at 134-35.7 In Con- Al- primary purpose The of the General gress enacted a measure permitting short speedy Act was the lotment assimilation directing term allotted Cong.Rec. generally the Indians. Secretary supervise the Interior to 1630-35, (1886); Cohen, 1762-64 Hand- expenditure of funds earned under the Federal Indian Law 128-32 book of leases.8 See Act of June Each Indian was to receive an allotment of § 4, Appro- land, to trust years.5 be held in for 25 priations Act of included comprehen- Forty-Ninth Congress period envisioned a provisions permitting long sive term miner- during which the Indians “civi- would be leasing of al lands in unallotted western system destroyed, lized” and the tribal af- 30, Appropriations states. See Act of June which to ter the Indians succeed fee §4, 1919, 26, 3, (codified ch. 41 Stat. 31-34 ownership of their lands and all of the § (1976)). as amended at 25 U.S.C. 399 The obligations citizenship. privileges and of 29, May 1924, 210, 244, Act of ch. 43 Stat. See, (1886)(remarks e.g., Cong.Rec. 17 1632 extended terms of gas 1891 oil and (remarks Mr. at Maxey); id. 1763 of Mr. production ten-year period leases from a to Dawes); Cohen, 131-32; supra, F. at G.D. long as oil gas “as or shall be found in Taylor, The New Deal and Indi- American quantities,” paying authorized the Secre- an Tribalism 4-5 The Act further tary Interior to enter into further oil land, provided surplus for the sale and period, and leases for the extended and use proceeds for the education to consented state taxation of pro- mineral and civilization of members of the tribes.6 on “bought duction unallotted lands and 1891, Congress responded public to paid for” the Indians. See British- pressure open to reservation for set- land Producing American Oil v.Co. Board of mining by amending 159, tlement and the allot- Equalization, 132, 299 57 S.Ct. permit (1936).9 ment act to short term leases of 81 L.Ed. 95 Between 1920 and Cohen, relatively an Law F. 115-127 Handbook their to lease lands for modest fees. 132-43, Federal Indian Law 528-29 case In the of the Civilized Tribes in Oklaho- ma, agents local real estate selected the sites period The 5. trust was to extension allotment, then rented land from the President, subsequently and was extended. profit Indians sublet it at a to white 1906, 21, Appropriations See Act of June ch. farmers. In other the [Bureau cases of Indian 3504, 325, (codified 34 326 Stat. at 25 U.S.C. Affairs], trustee, as administered the leases (1976)). § 391 but failed to ensure Indians received possible the maximum rent from the land. Cohen, 4, supra During 6. See F. note at 131-32. allotment, the first ten 55 million acres Producing 9. In British-American Oil Co. v. Board "surplus” land were sold to white settlers. 159, 164-65, Equalization, 299 U.S. Taylor, See G.D. The New Deal and American 134-35, 132, (1936), Supreme 81 L.Ed. Cong. Indian Tribalism 5 See also 78 "bought paid construed Court for" lan- (debate (1934) Rec. 11134-37 on of S. effect guage apply treaty to unallotted land within 3645, Sess., Cong., surplus pro 73d 2d reservations, including unallotted reserved min- Act). vision of 1887 rights eral in or allotted lands. The held Court that the 1924 Act’s consent to taxa- Minor in the on such 7. relaxations restrictions tion extended to mineral leases issued under the years. leases over the were enacted next 20 See 30, 1919, 26, 4, Appropriations Act of June ch. § 290, Appropriations Aug. of 3, (codified as amended at 25 U.S.C. 286, 305; May Appropriations Stat. (1976)). Id. at 57 S.Ct. at We § 135. (codified at believe British-American Court’s inter- Cohen, (1976)). generally 25 U.S.C. § 395 F. language pretation of the 1924 supra note at 135. Cohen, problematic. supra Act is See F. note respect n. follow at 409 529 n. 5. We it with Taylor, supra See G.D. note at 6: to leases issued before the enactment of During period the trust land allotted In view of our 1938 statute. leased, encouraged could be Indians were exempt long a remaining tax for too were statutes were enacted other several (1919) (re- leasing catego- period, Cong.Rec. 180-81 of additional see 58 permit McKeown); (re- land.10 at 184 reservation of Mr. id. ries of marks Howard); Cong.Rec. of Mr. marks had a of these All (1910) urged strenuously (colloquy), and The leases of common features. number opened for increased non- that the lands be approved by the Secre- regulated were See, development and Indian settlement. proceeds The were the Interior.11 tary of (1927) (remarks of e.g., Cong.Rec. Secretary of the Interior and paid to the Frear); (1919) (re- Cong.Rec. Mr. disbursed, congressional appropriation, McKeown); (re- at 216 of Mr. id. of the Indians. tribes marks for the benefit Carter); police Cong.Rec. or cancel leases had no of Mr. marks purposes for which revenue (1910)(remarks McGuire); direct the of Mr. F. spent. the leases would be earned under at 134-35. supra, Cohen, supra, 533-34. generally responsive to these The 1924 Act was history legislative of these enact By extending period of oil concerns. certain common themes. ments reflects gas production encouraged it the in concern about Congress evinced development further non-Indian of reserva- appropriations, creasing size of thereby produced lands. The revenue tion greater portion of the feder desired the Trea- became available reimburse from Indians’ expenditures al be made for the Indians’ sury appropriations 1791, See, H.Rep. No. 69th e.g., funds. and “education” “civilization”—measures (1927); Cong.Rec. 4574- Cong.2d Sess. 68 Congress hoped assimila- speed (1927)(remarks Letts); Cong. 75 of Mr. 58 placated to taxation tion.12 The consent (remarks (1919) Snyder); 175 of Mr. Rec. impatient tax-ex- with the Indians’ states (colloquy); supra, F. id. at 207-08 546, S.Rep. No. 68th empt status.13 See expressed Representatives at 135-36. (1924); Cong., Cong.Rec. 65 6844 1st Sess. the frustration at fact assimilation (1924)(Remarks Hastings); gen- of Mr. see sought under the General Allotment Act 134-42, 533-34; Cohen, supra, F. at erally proceed contemplated the failed to with Interior, Department of the United States See, e.g., Cong.Rec. dispatch. 68 4704 Law 125-26 Federal Indian (1927) (remarks Morrow); Cong. of Mr. 58 1934, (remarks Congress repudiated In the (1919) Snyder). of Mr. Rec. 174-75 studying After ma- program. lands complained States that reservation allotment 11. Act, Act question under the 1891 were need not reach the of Leases entered into we analysis applies granted "by authority speak the of the council whether Court’s 1936 to be approval ing Act. See id. at n. 5. 1938 529 for such Indians ... 28, Secretary of of the Interior.” Act Feb. of 1921, 119, 3, Act 41 Stat. See of March ch. 10. 794, 1891, 3, 383, 26 ch. Stat. 795. 1924 § 1225, Reservation); (Quapaw Act of March 1249 procedure provide for amended the leas Act 3, 1921, 120, 1249, (Osage 1250 ch. 41 Stat. "by Secretary ing public at auction of the 20, 1922, 347, Reservation); Sept. ch. 42 Act of speak the consent of council Interior with (codified (1976)) at 25 U.S.C. 400 § Stat. 857 29, 1924, May ing of ch. for such Indians.” Act (unallotted Peck and Blackfeet lands Fort provi Act no 43 244. The 1919 made Stat. 28, 1924, Reservations); April of ch. 43 Act consent. sion tribal (codified (1976)) at U.S.C. 401 111 25 § Stat. Reservation); (unallotted in Kaw Act of lands (1919); generally Cong.Rec. 58 173-77 12. See 403, 6, May ch. 44 Stat. § 659-60 Cohen, supra note at 139-41. (Crow Reservation); July ch. (1976)) (codified U.S.C. 402a § at 25 generally Exempt Loss Revenue—Tax 13. See of (unallotted farming irrigable pur lands Hearing on S.Res. 168 before the Indian Lands: poses); 44 Stat. Act of March Affairs, Cong., on Indian 75th 3d Senate Comm. (1976)) (codified at 25 U.S.C. 398a-398e (1938), for of unsuccessful state Sess. accounts (unallotted on executive order reserva lands attempts oil mineral tax tions). both Acts ex The 1927 during early part of the reservation taxation; pressly to state other consented century. twentieth Acts not. four did plementation, Congression members of the organize under the Act were entitled “to al Indian Affairs sale, Committees on concluded prevent disposition, lease or en program of the results had become lands, cumbrance tribal interests every “a scandal and a blot on our name lands, or other tribal assets without part Cong.Rec. world.” tribe____” § 16, consent of the IRA (1934) (remarks Howard). also of Mr. (codified at U.S.C. (remarks id. id. King); of Mr. at at (1976)). Among purposes of the IRA (remarks Frear).14 Mr. In com a promotion significant were the of a in about-face, plete legisla enacted autonomy authority crease tribal tion to of 47 reverse effects and the op extension the tribes of “an Reorga policy. federal Indian The Indian portunity to take over the control of their [IRA], nization Cong.Rec. own resources.” 11123-25 (1934) (codified as at amended 25 U.S.C. (1934) (remarks Wheeler). of Mr. See Mor §§ (1976)), prohibited 461-479 further allot Mancari, ton land, sought ment Indian to return to F. Co portion the Tribes some 90 million hen, supra, 147. tax exempt passed acres of Indian land that had into trust status of unalloted and restricted res ownership non-Indian allotment ervation indefinitely, lands was continued a program, and authorized tribes to establish provision that induced at one least state to governments tribal over insist within tribes its borders be ex development exploitation cluded from Cong.Rec. the Act. land resources. Tribes that elected to Howard, Congressman sponsor Many Indi- ownership reservations have in Indian Reorganization an fragment original described the allotment a mere land and all program as follows: remaining badly allotted reservations are checkerboarded____ accompanied passing debates act, propo- allotment it is clear that the nents of this measure were convinced that the poverty largely This contributes to the ex- private ownership great of land was the one Indians, which, among cessive death rate the step that was needed to civilize the Indians. tuberculosis, in the closely case of a disease patent give The mere issuance of a fee would undernourishment, associated with is more thrift, pride ownership, to the Indians of in- than seven times the death rate from tubercu- dustry, self-support; and the means of it among population. losis the whole break would down the tribal status the of typical Indians and convert them into Ameri- many Although thousands of are Indians citizens; would, said, they can it the solve living in tribal status on the various reserva- problem, single Indian and in the course of a tions, their own native tribal have institutions generation relieve the im- Government of the very largely disintegrated openly sup- or been costly caring mense and of burden for pressed, management and the entire of Indian were, sure, Indian wards. There to be a few affairs has more been and more concentrated farsighted predicted men who that the allot- the hands Federal Indian Service. ment law lead to the economic of ruin powers property, The this over of Bureau the Indians, but their voices were the lost in persons, daily and lives affairs of optimism accompanied chorus of which past Indians have in the been almost unlimit- passage of the allotment act. extraordinary It example ed. has been an of political absolutism in midst of a free act, being The allotment so far from a democracy up built on the most —absolutism civilizing means of the Indians soon a became lines, rigid irresponsible bureaucratic perfect capture tool for of Indian public, Indians and to shackled obso- lands.... laws; reform, change, lete resistant or which, progress; century, over a has handled system, aAs result of this the allotted Indi- understanding sympa- the Indians without general an are in reservations riddled al- thy, repression which has used methods of ienations, being the extent of the alienation suppression unparallelled and in the modern exactly proportionate length almost to the of world of outside Czarist and Russia the Bel- original time since the allotment was made. gian Congo. many practi- The Indians have of tribes lost Cong.Rec. 11727-29 cally every square they foot land of owned. Thomas); (remarks (1934) proval Mr. regulations of and of Secretary of § (codified at IRA 25 U.S.C. Ultimately, Congress Interior.16 decid- (1976)).15 replace, ed to rather amend, than existing leasing laws. after extensive Congress recognized the various hearings on conditions under which In- provisions permitting living,17 dians were inconsistent, Senate scattered, and House tribal land were Committees on Indian Affairs in conflict with the IRA introduced “bring bills to prevent mineral-leasing all authority to leas- giving the tribes matters in harmony with ing Congress Reorganization In 1935 of tribal lands. con- Indian sidered, enact, S.Rep. did not a bill to Act.” but intended No. Cong., 75th 1st existing leasing permit statutes Sess. 3 H.R.Rep. amend No. 75th grant the min- Cong., tribal councils to for 3d Sess. Bill Senate was lands, subject ing ap- to the unallotted enacted as the May 1938.18 It purpose Appropriations Act March another noted that court 15. The district 362, 366-79, enter the allocated several million Indians to had was to enable the IRA See, e.g., equal footing. Indian an and tribal funds for economic world on dollars in federal education, (remarks (1934) Mr. Cong.Rec. 11730-31 Indian 78 Howard). three million dollars for sought accomplish services, 3771-76; The IRA also see 48 Stat. at see health corporations, by authorizing form goal tribes to (remarks Howard). Cong.Rec. of Mr. 821-22 revolving the ben- establishing credit fund for period Appropriations follow- Acts for corporations and their mem- tribal efit of these bers, Con- ing of the IRA demonstrate the enactment purchase authorizing of additional continuing principle gress’s to the commitment ownership, tax-exempt Indian for land destined care, education, services and health social tax-exempt status of extending and restricted police, firefighters and courts should tribal holdings, appropriat- existing Indian unallotted through of federal provided a combination education, ing college and technical funds for See, e.g., Appropriations Act of funds. tribal increasing participation in and man- and agement 564, 574-90; August see operations on of livestock timber (remarks (1937) also, Cong.Rec. e.g., 4515-16 Id.; (remarks also id. at 11123 land. see tribal (remarks Johnson); of Mr. id. at 4589-90 of Mr. Burdick). Wheeler). of Mr. conclude, our examination We from Congress trib- to effectuate increased intended Congress enacted IRA and the statutes of the during power, but did independence and economic al Congress period, did in- the same responsibility up giving federal not envision supervising achieving some to assist Indians in tend IRA developments providing these manifest, parity. It is economic measure of Indians, did necessary not services for however, Indi- did intend for responsibility to the over to turn its intend governments upon dependent state to be ans Indeed, opposition to the much states. governments tra- and services state the benefits reject premised legislation its failure was ditionally provide. See, policies. e.g., id. at 11126-27 protectionist (remarks (remarks King); Mr. id. at 11733 Cong., See 79 74th 1st Sess. 16. S. Kelley). Mr. 8307, 8308, 6102, 7350, 7815, Cong.Rec. session, Congress legislative en- In the same (1935). Act, Johnson-O'Malley Stat. acted the (codified at 452-54 §§ 25 U.S.C. as amended See, Survey Indians e.g., Conditions the 17. Secretary (1976)), authorizing of the Interior of the of Hearings a Sub before the United States: provi- in governments the with for to contract state Affairs, care, education, Comm. on Indian agricultural of the Senate comm. as- of health sion (1937); Survey Cong., Condi at 1st Sess. to Indians federal 75th and social services sistance of history the States: Hear expense. legislative of the Johnson- the Indians in United tions of Congress envisioned O’Malley ings Senate Comm. Act indicates a Subcomm. of the before pro- Affairs, (1936); government’s paying to Cong., states federal 2d Sess. 74th on Indian widely living in benefits to Indians vide these the United States: Hear Indians in Conditions of of Affairs, maintenance communities where scattered ings on Indian before the House Comm. would be separate and facilities federal services Cong., Indian Conditions 2d Sess. 74th S.Rep. Cong.2d impractical. No. 73d Hearings before the Subcomm. on and Affairs: Bureau of Indian A letter from Sess. Comm. on Indian of the House General Bills Collier, incorporated in Affairs Commissioner Affairs, Cong., 74th 1st Sess. Report, the Bureau discloses the Senate provide anticipated continue to that it would provided: The 1938 Act 18. living large directly tribal in to Indians services communities, by and House it enacted the Senate Be of themselves the Indians unless Representatives States Ameri- the United of of advantage possibility sought of take of to assembled, hereafter unal- in That ca Indeed, the at 4. See id. state contract services.

H99 replaced prior leasing mineral give statutes Indians authority granting in deny- or leases, comprehensive proce- with a and ing detailed and enable the gain Indians to leasing dure for mineral of unallotted greatest return from their property. supra, lands. at S.Rep. Cong., 534. No. 75th 1st Sess. 2 Report accompanying Senate noted bill The Act made no mention of taxa- purposes tion, were uniformity to obtain legislative history and the is silent on lands, respect with leasing to the of tribal the issue. any ership lotted lands within Indian or to reservation unencumbered real estate of a value tribe, any by group, equal lands owned Indians, band of to or twice the of amount the bonds. jurisdiction, except oil, operations Federal any under SEC. 4. That all under specifically excepted gas, those pursuant hereinafter from or other mineral lease issued to provisions may, ap- of any terms affecting of this or other Act Interior, proval Secretary subject of the of the be restricted Indian lands be shall to the mining purposes, by regulations promulgated by leased for of rules the Sec- spokes- retary the tribal or other council authorized the Interior. discretion of the Indians, Secretary, any men for for to exceed gas such terms not said for lease oil or issued long provisions ten and as thereafter as minerals under the of this Act shall be made produced paying quantities. subject any are cooper- in to the terms of reasonable gas-min- approved plan SEC. 2. That leases for oil- ative unit or pre- other and/or or ing covering purposes by Secretary such lands subsequent unallotted scribed said or highest respon- any shall be for sale to the offered to the issuance of such lease which in- bidder, qualified public development at sible auction or on volves the or of oil bids, advertisement, sealed after notice and from or land covered such lease. upon subject Secretary such terms and condi- to such SEC. 5. That the of the Interior discretion, Secretary may pre- may, superintend- tions as the in his Interior authorize scribe. Such advertisement shall to or other reserve ents officials in the Indian Service to oil, Secretary right reject approve gas, of the Interior the mining leases for or other lands, judgment covering purposes any all bids in his interest whenever restricted Indian doing, of the be Indians will served so or allotted. tribal received, satisfactory if no bid is the ac- 6. or SEC. Sections and 4 of this Act lease, cepted complete apply Papago bidder fails to shall to the Indian Reserva- Arizona, Secretary Interior shall determine tion tana, the Crow Reservation in Mon- that it is unwise the interest Indians ceded lands of the Shoshone Reser- bid, highest accept Secretary may Osage Wyoming, said vation Oklahoma, Reservation in sale, asphalt lease readvertise such for or with the nor to the coal govern- consent of the council or Choctaw tribal other and Chickasaw Tribes in Okla- authorities, ing may tribal a lease made homa. Provided, private negotiations: parts That the fore- 7. All Act or SEC. Acts inconsistent going provisions hereby repealed. shall in no manner restrict herewith are right organized incorporated May (codi- tribes 396a-396g (1976)). sections and 17 of the Act of June fied 25 U.S.C. §§ at (48 984), oper- lease lands Six reservations were excluded from the mining purposes provided as therein and in ation of much of the Act. These included the Reservation, provisions any Papago subject special accordance with consti- mineral IRA, adopted by any leasing provisions tution and Indian charter of section 3 of the Reservation, pursuant against tribe to the Act of June voted Crow which or- IRA, ganizing Taylor, supra SEC. 3. That hereafter lessees of restricted under the see G.D. lands, allotted, mining tribal or note which was purposes, including gas, May oil and shall furnish the Act corporate surety bonds amounts satisfacto- 659. Also excluded Interior, ry Secretary guarantee- to the of the were lands that the Shoshone Reservation had States, ing compliance with the leases: the terms of their ceded to United and three Oklahoma

Provided, surety may personal That bonds be that had excluded reservations been from the accepted deposit Papago where the sureties as collat- IRA. The Crow and reservations were Secretary ultimately subject provi- eral Interior with the said of the made to the 1938 Act’s 106, 1, any public-debt obligations May United of the sions. See Act of ch. 67; 90-308, guaranteed principal May States as to and interest Act of Pub.L. Maxfield, by equal generally the to amount United States the full Stat. 123. See P. M. Diete- Trelease, satisfactory of such bonds other collateral & F. or rich Natural Resources Law on Interior, Secretary to of the the or show own- American Indian Lands 164 prior statutes on the repeal infer the II general repealer in section 7 of basis argues that the The Tribe Act introduce serious uncertain- the implicitly re repealer general clause Act’s legal'status to of the indefinite- ty as the We to taxation. pealed 1924 consent the earlier acts and term leases executed under into Many of the entered disagree. leases authority Secretary’s to cast doubt on the re of earlier statutes authority the under regulate them. Such a result effective, indeed, continue to effective remain mained the interests of the prior provi would serve neither the today, because producer-les- to for an leases continue authorized Tribe nor the interests sions Appropriations term. See indefinite sees. § 26, June Having concluded that 1938 Act exceptions); Act (“irrevocable” with certain prior leasing superseded repeal not but did (“as May statutes, we turn to current effect in paying be oil shall found long as or to contained in the the consent taxation Act limits expressly The 1938 quantities”). Act. to the 1891 We hold 1924 amendment to entered into after application leases its pursuant to that leases executed one, Act’s effective date. section 1924 Acts remain to those provides that “hereafter unallotted the Act Acts, promulgated regulations to mining may ... ... be leased authority of Secretary under the language The “hereafter” purposes____” Finally, regulation Act. in section 3 of the 4 of the 1938 Act for is echoed section provides “opera- “pursuant Act section leases issued to the terms this oil, any gas, or mineral under other tions any Act.” It follows that the 1924 or other to pursuant the terms of lease issued ef to taxation remains Act’s consent state affecting Indi- any Act restricted or other to un respect fective with leases executed subject to the rules an lands shall be 1891 Acts.20 We there der 1924 and Secretary promulgated by the regulations grant of the district court’s fore affirm supplied). (Emphasis We of the Interior.” to Mon summary judgment the State of statutory language infer from upholds validity as it tana insofar pur- issued Congress envisioned leases proceeds taxing from 1924 Act and tribal be prior to acts would continue to suant leases. 1891 Act duration, subject reg- their to effective for Secretary and promulgated ulations Ill they exe- under which were to the statutes argues Act Montana that if the 1938 did made after the effective cuted. Leases implicitly it repeal must Act, however, gov- to were be date of the incorporated the implicitly read to have procedures.19 new terms and erned Therefore, contends, if 1924 Act. Montana believe, is both the interpretation, This we may gas production oil under it tax statutory lan- reading of the most natural leases, may pro- tax 1891 and 1924 Act it reading adapted guage best to 1938 Act leases as well. The purposes. To duction under effectuation of statute’s The 1938 Act scope charters. See lease lands for feel constrained statutes might cause makes susceptible to more than one We it thus be and, acknowledge issued affecting tribes excludes six Indian read pursuant supra addition, of their tribal constitutions no mining purposes the six excluded tribes. organized provision reject note 18. The reference refer expressly preserves this only "any statutory language for interpretation. tribes other statute" extant, according IRA from IRA to indefi- We be- to Professor 20. utes. nite-term leases entered into plied; interpretation: The latter and includes a related [sic] or ^[1938] footnotes (as Acts to which the parts supra provision likely Cohen’s treatise new of Acts inconsistent omitted). omits note provision leases). any taxing at 409 repealing repealed suggests tax consents (emphasis authorization herewith.” prior ”[a]Il a similar stat- sup- had argument per- production district court found same as on unrestricted We do not. suasive. lands ...” is nowhere by contradicted 1938 Act and is provi- inconsistent with no entirety provides The 1924 Act in its as sion of Therefore, the later statute. Mon- follows: insists, tana Congress’s silence in 1938 on Be it by enacted Senate and subject of taxation must be interpreted Representatives House the United implicit as an incorporation of the taxation States America in assem- portion of the 1924Act into the bled, 1938 statu- That land unallotted on Indian res- tory scheme. ervations other lands of than the Five Osage Civilized Tribes and Reserva- is, argument essence, Montana’s in an subject mining tion for purposes to lease invocation of statutory assorted maxims of period for a provi- of ten Citing construction. United v. States so to section Act of February 3 of the Greathouse, 166 U.S. 17 S.Ct. (Twenty-sixth Statutes at Large, (1897), 41 L.Ed. 1130 Montana 795), page may public be leased at auc- advises us of the rule that where two stat- by Secretary Interior, tion utes on the same matter are not with the speaking consent of the council irreconcilable, absolutely both should be Indians, for such oil gas mining for given effect. Montana also draws comfort purposes period for a of not to exceed from a long the canon that agency held years, longer ten and as much thereafter interpretation of a statute in which Con- gas as oil paying shall be found in gress acquiesced has silently is entitled to quantities, any and the terms of existing great deference. See United v. States gas mining may oil and lease in like Rutherford, 442 U.S. by manner be extending amended 61 L.Ed.2d 68 Montana long term thereof gas for as as oil or points by to informal decisions the Solicitor paying quantities: shall.be found in Pro- of the Interior Department 1956 and vided, production That gas of oil and concluding 1924-Act’sconsent and other such may minerals on be leases, state applied taxation to 1938 Act taxed the State in which said lands Department notes that did not respects are located all the same as opinions overrule these until 1977. See 84 production lands, on unrestricted and the Interior Dec. view of Secretary hereby Interior autho- Congress’s to alter Depart- failure paid rized and directed to cause to be ment’s 1956 interpretation, sug- Montana against tax so assessed the royalty inter- gests that Department improp- behaved Provided, however, ests on said lands: erly in repudiating its earlier view. There- That such tax shall not become a lien or fore, concludes, it this court must defer to charge any against kind or character Department’s position. property the land or the of the Indian owner. In invoking what it terms ap “the (codified Ch. 25 U.S.C. plicable statutory construction,” by rules of (1976)). Montana concedes that the which, insists, bound, it arewe Montana provisions of the Act concerned with the appreciate fails such rules are mere procedure issuing leases and the dura- ly guideposts discerning Congressional superseded by of leases tion have been States, intent. See Busic United Moreover, Act. method 1752-53, 406-07, U.S. S.Ct. collecting tax—disbursement (1980); United States v. Secretary equally inapplicable to —seems Corp., United Tuna Continental argues, the current leases. Montana how- 164, 168-69, 1319, 1322-23, ever, S.Ct. “Provided, language that the (1976); L.Ed.2d 653 Gooch v. United and other oil or minerals States, may such lands taxed S.Ct. State respects said lands in all which are located L.Ed. 522 Shields v. United 1202 no (9th Cir.), and find and context of 1938

States, cert. F.2d 990 — -, purpose subject a to leas- manifestation of denied, S.Ct. U.S. statutory to the the new scheme es under L.Ed.2d 86 old under several of the taxes authorized argument that the Montana’s asks that we schemes. Montana as be construed a blanket must consent Congress’s si- purpose from infer such a taxation, respect with effective consent to Supreme Court has instructed lence. The treaty leases on unallotted all mineral to us, however, to congressional consent a lands unless issued under reservation of tribal income from on-res- state taxation taxation, stretches prohibiting statute express. must be ervation activities disfavoring repeals of canon construction Bryan County, v. 426 U.S. Itasca scope. beyond implication its intended S.Ct. that invoke The Montana cites cases canon of con- We decline to hold that a case, apposite. In one not canon are supply the will suffice to deficient struction dispose arguments to of invoked canon was Congress’s express of intent manifestation re addressing one a concern statute permit the tax.21 to addressing anoth statute pealed an earlier Mancari, er, v. U.S. see Morton insists that we Montana also (1974) (Civil 2474, 41 L.Ed.2d 290 S.Ct. interpret must the two statutes in accord IRA); portion repeal not of Rights Act did Department’s with Interior earlier ance another, arguments that an dispose to of accord position. The deference we should a re part to one of statute amendment interpretations stat to administrative part, v. Na see pealed another Posadas Zapata is utes not absolute. See Cruz Bank, S.Ct. City tional (9th Resources, Inc., 695 F.2d 428 Ocean (amendment (1936) to 80 L.Ed. 351 Cir.1982). case, In this we note several repeal Act did 25 of Reserve not Federal undermine the factors that section). do not portion unamended We Depart Interior interpretation. The gen quarrel proposition that it is informally, adopted position its ment conclude, erally in the unwise to absence question any analysis of and without evidence, any Congress intended Congress intended the before us—whether a have future prior cause statute to no apply leases consent to taxation to Congress legis has effect. Where enacted the 1938 Act. See United issued under lation without attention to Opin Dept. of the Interior Solicitor’s States Acts, prior courts should not attribute 4, 1956) (unpublished). (May ion M-36345 unexpressed purpose of nulli Congress the first Department’s The articulation Interior general princi fying earlier statutes. This contempora of this was here, however, where, inapplicable as ple, is stat neous with the enactment of Congress parties intended all concede that rather, ute, later. but occurred one. supersede the later statute interpreta Department expressed this Act, Congress enacting the mani In only unpublished memoranda. tion an unmistakable intention to fested Congressional acquiescence inference of subsequent terms the new draw under Montana have us predecessors. than to statute rather where, here, as there is no evidence mined inquiry is whether The crucial Department’s interpretation was portion one intended that nonetheless Congress’s brought to attention. also predecessor control a lease statutes States, 328 v. United Girouard under the 1938 Act. issued (1946)(“It 90 L.Ed. 1084 S.Ct. intent, Congres best treacherous to find in Congress’s is at ascertaining adoption a con history silence alone the language, legislative sional we look to the 409; See, e.g., supra note see have es. 21. We in addition that commentators note Clinton, opinions M. R. Law and the Amer expressed con- also Price and their that the 1924 Act’s inapplicable leas- ican Indian 804 sent to taxation is to 1938 Act law.”). ever, trolling Finally, Depart- rale of replaced prior mineral leasing stat- repudiated ment its earlier in utes with a scheme calculated to advance (1977), see 84 Interior Dec. 905 in a policies sovereignty tribal and eco- published carefully opinion reasoned growth nomic reflected in the IRA. We analyzed Depart- that both statutes and the interpreting fail to see how the 1938 Act to prior rulings. Depart- ment’s In incorporate implicitly portion ment reexamined adhered to its 1977 1924 Act consenting to state taxation position. 86 Interior Dec. 181 purposes advance of the 1938 Act.22 circumstances, Under these confronted non-eontemporaneous interpreta- two We hold that the 1924 Act’s con Act, tions of the 1938 we do not believe inapplicable sent to taxation is to the 1938 informal, that we should defer to the un- Act pursuant and to leases executed to its published merely one because it earli- authority. Accordingly, we reverse so vintage. er much of the judgment district court’s as We conclude that Montana’s collection of upheld the taxation of royalties tribal support maxims is insufficient for what we earned on 1938 Act leases. unlikely proposition:

view to be an Congress part intended that of one sen- IV tence in one of the statutes otherwise total- argued Montana ly superseded to the incorpo- the 1938 Act district court be Act, Congress if rated into even had Congress and that not consented to taxa through proceeds manifested its intention tion of tribal silence. from 1938 Act leas es, nothing There is in legislative history its taxes were nonetheless valid because the language of the 1938 Act legal even hint- incidence of the taxes fell on the ing Congress anticipated pro- producer-lessees non-Indian and not on the visions of any statutes tribe. Because the district court concluded applied would be to leases issued under the valid, that the taxes were it did not reach 1938 Act. question legal of the taxes’ incidence. We therefore remand the case to enable note, addition, We that the 1924 Act the district court to address this issue. integral part Congress’s was an allot- Should court determine that legal program, ment under which all Indian land producer- incidence of the tax falls on the subject was intended to become to state lessees, it should then decide whether Mon expiration taxation after the of a brief preempted tana’s statutes are period. Depart- trust See United States standards Interior, 856-59; articulated supra, ment of the Crow Tribe In Montana, supra Congress’s dians v. State 650 F.2d section I. consent to the (9th Cir.1981),amended, (9th taxing authority exercise of state 665 F.2d over Indi- Cir.), harmony denied, an Tribes was in pur- with the cert.

poses of allotment. The how- 22. The district court found harmony pay between been forfeited for failure to assessed taxes. purposes of the IRA and the 1924 consent to Act of June theory sought taxation on the that the IRA (codified as amended at 25 U.S.C. 412a § enable Indians to enter the economic world on (1976)). H.R.Rep. Cong., 74th 2d equal footing an and taxation statutes are eco- (1936). Congress’s Sess. commitment to the tax gas production. nomic facts of oil and In iden- land, exempt status of restricted and its continu tifying aspect, this harmonious the district court education, ing appropriations for health disregarded express the IRA’s extension of the care, courts, police tribal and tribal services land, tax-exempt status of Indian see IRA §§ traditionally provided citizens state state 5; (codified at 25 U.S.C. taxes, governments from state demonstrate to us (1976)). Congress §§ In acted to did not intend for Indians to be exemption purchased extend the tax to land See, equally purposes. e.g., Ap treated for tax funds, appro- with Indian trust or restricted propriations August priated money to reimburse Indians whose land 574-90. any had been taxed and redeem land that had Construction, Statutory part, part Sutherland REVERSED AFFIRMED (4th 1972). fact, 23.08 at 221 ed. and REMANDED. general imply has been held to repealer ANDERSON, Judge, Circuit J. BLAINE “very may there strongly that acts on KENNEDY, with whom WALLACE thereby same which are not join, concurring and dis- Judges, Circuit repealed.” Reynolds, Hess v. senting: (1885). 377, 379, 927 5 S.Ct. 28 L.Ed.2d must therefore to other rules One turn reasons, in concur, additional I but with governing the determination whether the holding that the Act did majority’s repealed Act the 1924 Act. Suther- repeal the 1924 Act. I re- impliedly land, supra. express- did not As however, dissent, from the ma- spectfully Act, question ly repeal is the 1924 taxing the 1924 Act’s jority’s that view impliedly whether it did so. inapplicable is leases en- authorization promulgation of the 1938 tered into after Repeals strongly by implication are disfa- Act. Mancari, vored. Morton 2474, 2482, 41 L.Ed.2d 290 S.Ct. First, My has three disagreement bases. Bank, City v. National Posadas misapplies majority well-established 296 U.S. S.Ct. stating by construction rules of L.Ed. 351 As stated the Su- Act the issue is whether preme Court in Posadas: Act’s “expressly incorporated” categories There Majority are two well-settled taxing Opinion authorization. where repeal by implication (1) provi- having concluded that the 1924 Once — effect, I acts are in Act is fail understand sions the two irreconcilable still conflict, to the how it construed have no force. the latter act extent of can be Second, long-standing implied repeal has been a constitutes an there conflict one; (2) interpretation Depart- if the consistent of the earlier latter act effective- ment of Interior of the continued of the covers the whole earlier taxing ness of 1924 Act’s authorization. clearly intended as a substi- one is prior tute, I find consistent similarly as a operate repeal it will much of the intended effect case, more indicative act. But in either earlier Act on the 1924 Act than the legislature repeal intention prior Department’s position of its reversal manifest .... must be clear and Third, Congress in 1977. if meant to abro- at 352. 296 U.S. at 56 S.Ct. gate authority of the states to tax the no con- Simply, there is “irreconcilable mineral resources unallot- extraction of flict” of the 1924 between the Act, by the it ted land as conferred no doubt and 1938 Acts. There is the two surely made such intent would have an capable of coexistence. The statutes are province and it is not the clear. It did not expands Act the oil uses and judgment for the of this court to make in the leasing procedures outlined 1924 Act legislative branch. leases. applies them to all Section of opinion majority concludes § 396a, Act, reiterates the 1938 25 U.S.C. impliedly repealed be- 1924 Act was not language of the 1924 Act much of the recognized cause Act the contin- the 1938 consent, regarding ap- council BIA tribal ued entered effectiveness ten-year proval, general a durational I agree acts. 2 of the 1938 limit on the leases. Section observation, I but believe as well that § 396b, Act, expands the 1924’s U.S.C. compel such a other reasons conclusion. public requirements. The 1938 Act auction lan- regarding Act is silent taxation. The the 1938 contains a

Section 7 of guage of does not evince a clear “general clause. It hornbook the statute repealing” is taxing repeal of the authori- repealer “legal indication that general law that a is face, Sands, was taxation nullity.” 1A zation intended. On contemplation a C. mineral quite compatible 77 L.Ed.2d 298 majori- with the 1938 Act. ty’s holding neglects also the related rule “[wjhere there is no clear intention does the Nor 1938 Act “cover the whole otherwise, specific a statute will not be subject” although of the 1924 controlled or general nullified one attempt 1938 Act was an to make uniform regardless of priority of enactment.” “patch-work prior leasing state” of the Morton, 550-551, 417 U.S. at 94 S.Ct. at laws, Handbook Federal Indi- 2483. The 1938 general Act is a Law, an (1942 ed.), it is silent on the specific statute and the taxing provision of subject of taxation. It is true that the 1938 the 1924 it, Act should be read into rather replaces leasing proce- Act’s than nullified. See Radzanower v. Touche taxing provision dures. The of the 1924 Co., Ross & own, Act stands on its however. As stated Posadas, implied repeal an will be found only to the extent of the conflict between By implication, the majority relies on the the and latter statutes. 296 U.S. at argument Tribe’s that this court should 503, 56 at 352. The S.Ct. 1938 Act does not follow the canon of pro construction which address nothing taxation and in- otherwise ambiguities vides that in statutes are to be that dicates taxation conflicts with it. See, resolved in favor of the Indian tribes. e.g., Bryan v. Last, County, Itasca 373, there has 426 long-term been a U.S. inter- 392, 2102, 2112, 96 S.Ct. pretation by Department 48 L.Ed.2d 710 Interior (1976). taxing the 1938 impliedly repeal Act did not authorization Act, is, however, the 1924 1924 Act including taxing its unambiguous. authori- This (1977) zation. See 84 Interior “canon of Dec. 905 construction is not a license to disregard its references to prior opinions. expressions clear congres Gener- of ... ally, the construction of a sional intent.” DeCoteau v. District statute Court, agency charged County with its administration is 420 U.S. 95 S.Ct. great 1082, weight, when, 1094, entitled to (1975); accord, especially 43 L.Ed.2d 300 here, Congress Glover, as has the Andrus v. refused to alter 446 U.S. 100 interpretation. 1905, administrative Red Lion 1911, S.Ct. FCC,

Broadcasting Co. v. 367, 395 Nor U.S. does the 1938 Act any ambigui create 381, ty. 89 S.Ct. 23 It is repeal L.Ed.2d 371 silent on the of the 1924 Act. Use of this canon of construction require the court to amend the 1938 having Once concluded implied that no expressly That, Act to limit the 1924 Act. occurred, repeal majority nonetheless however, goes beyond interpreta a liberal taxing states consent does not ambiguous tion of an phrase clause or apply to the 1938 Act because the 1938 Act legislating by judicial entails branch. “expressly incorporate” did not may This we not do. Shields v. United taxing Act’s authorization. majority States, 987, (9th Cir.), 698 F.2d cert. 990 13, opinion at plainly 17. Such a result — denied, -, 73, U.S. 104 S.Ct. 78 principle contravenes the having that once (1983); L.Ed.2d 86 Fry see v. United implied repeal, found no it is the court’s States, 646, (9th Cir.1977), 557 F.2d 649 obligation to read the together statutes denied, cert. 434 U.S. 98 S.Ct. Mancari, to both. Morton v. give effect L.Ed.2d 754 2483; 417 U.S. at 94 S.Ct. at Regional Cases, Reorganization Rail Act British-American Oil Producing Co. 102, 133-134, 335, 353-354, Equalization, v. Board 299 U.S. (1974); see Nebraska Public L.Ed.2d 320 (1936), S.Ct. 81 L.Ed. 95 Supreme Land, Power District v. 100.95 Acres Court was faced with a similar situation. (8th Cir.1983); F.2d v. In that upheld ease the Court Montana’s Yellowfish Cir.1982), Stillwater, City (10th right 691 F.2d to tax oil and on the — denied, rt. U.S.-, pursuant 103 S.Ct. Blackfeet Reservation to the 1924 ce argued including for producer equally lands reserved Indi- non-Indian oil Act. The statutes, Act of June other return for or surrender two ans in cession 3, 16, 17, Act and the lands, possessions rights.” other them of specifical- September at at 134. The 299 U.S. S.Ct. Court on leasing of minerals ly governed the Strawberry Valley relied Cattle Co. These Blackfeet Reservation. (1896), Chipman, 13 Utah P. 348 of state taxation on the were silent practice sup- and uniform administrative and, argued, the 1924 therefore it was port “bought paid its construction of Court, however, read apply. The did not for”: ap- together as one law all the acts repeatedly ruled It has been that Indians 1924 Act. proved state taxation possession who are in of lands have do This court should States, given them the United been replaced While the 1938 same. permanent occupancy, where Con- for provisions, taxing 1924 Act’s gress recognized right has and title left intact and must be authorization was lands, holds the Indians such said 1938 Act. along read effective with the as purchasers having as paid Yellowfish, 691 F.2d at 930. same, in the sense in which the words question is not whether the 1938 Act paid “have same” are used “expressly incorporated” the but Act of 1891. taxing Act’s authoriza- whether General, Opinion Attorney Assistant applies tion under own terms Dec, 408, in 25 cited Land see into Act. The entered lan- Co., P. guage Strawberry the 1924 Act and the construction at 350-351. Cattle it Supreme show that is of it Court argued, majority The Tribe and the im- applicable. plain language, the 1924 By its accepts, pliedly that the use of the term applies Act to land on Indian “unallotted lands” in the Act should limit “such reservations other than the lands pursu- the tax authorization to leases made Osage Five CivilizedTribes and Reser- ant or 1924 Acts. We think the mining purposes vation to lease for plain meaning of the 1924 cannot be so proviso period for a of ten narrowly The constricted. term “such February Section of the Act of generally property lands” addresses 1891____” provides The Act then that “the may which leased. It does not refer of oil and and other miner- only to those leases in which the or may als state____” such be taxed on authority. 1924 Acts cited In are as Brit- added). (Emphasis “Such Oil, Supreme con- ish-American Court applies clearly lands" to unallotted lands that the 1924 Act authorized taxa- cluded subject to lease under the 1891 Act. Lands gas leasing tion of oil and on the Blackfeet subject to lease under the 1891 Act are addition, In Felix Reservation. Cohen con- occupied those “lands Indians who ... applying strued as unallot- same, bought paid for the have ted reservation land. Handbook Feder- not farm which lands are needed for Law, supra, al at 257. The 1938 Indian agricultural In purposes____” British- Act leases at issue here involve unallotted Oil, Supreme American Court con- language the 1924 Act’s tax- land. language only strued include broad, ing plainly is and it acquired by through authorization “lands Indians payment money, applies.1 of a consideration but any Presumably, law. he was well aware of

1. Mr. Cohen also made no mention of loss surely authority underlying he of the Act’s the intent the 1938 Act and effectiveness any have aware of loss of effective- state taxation due the 1938 Act. At time been Handbook, operation of publication Act due to the of the 1942 of his Mr. ness of why Department Depart- Perhaps Act. was an Assistant Solicitor in the is Cohen consistently upheld taxation of Mr. who of Interior state ment of Interior. died country’s authority preeminent until 1977. also this mineral resources was disagree majority's I also with the rejec- the result of what the Department thought long tion of the Department and consistent plainly law, i.e., was the 1938 Act had of Interior that the 1938Act power no effect on the of the states to tax right did not affect the of the states to tax. mineral resource extraction on unallotted First, Department from 1938to 1956 the land because it expressly repeal did not acquiesced Interior in state taxation min- 1924 Act. production, notwithstanding eral the exist- If Congress had intended to limit the ence of the spon- 1938 Act. Since Interior taxing Act, authorization of the 1924 it certainly sored it could have would have expressly. done so Surely, put an end to state taxation of mineral there would have pro- been at least some extraction if it intended the 1938 Act to test representatives from the of the west- Then, have that effect. the Solic- states, ern to which the taxation of mineral Department explicit- itor for the of Interior important, resources is so if the 1938 Act ly found that the 1938 Act did not affect was intended to have such effect. No such taxing the 1924 Act’s authorization. protest can be found in history of the position. the Solicitor affirmed this passage of the 1938 Act. It was not until Department reasons, preceding For the I would af- position. reversed its 84 Interior Dec. 905. firm the district court.2 majority follows that later decision holding permitted that taxation only

leases entered

1924 and interpreta- 1891 Acts. This later

tion, however, long-standing overturned a

and consistent administrative construction law, and is not any entitled to sub- Alaska,

stantial deference. v.Watt 259, 272-273, 1673, 1680-81, 68 L.Ed.2d America, Red Lion Broadcast- UNITED STATES of Co., ing 395 U.S. at Plaintiff-Appellee, S.Ct. at 1801. Instead, this court rely should on the Department’s prior interpreta consistent OTTE, Craig Defendant-Appellant. true, tion of the 1924 and 1938 Acts. It is No. 83-1965. states, majority as the an Department nouncements of the were not Appeals, United States Court of contemporaneous the passage Ninth Circuit. Also, they 1938 Act. opin were informal Submitted March Nonetheless, ions. 1984.* they are still entitled to deference from the courts. See Rice v. Decided April — Rehner, U.S.-,---& n.

103 S.Ct. 3300-3301 & n.

L.Ed.2d 976-977 & n. 13 Assi Nordwick,

niboine & Sioux Tribes v. (9th Cir.1967), denied,

F.2d cert.

389 U.S. 88 S.Ct. 19 L.Ed.2d 838

(1968). Moreover, they likely most were 2. The Act of March codi- a like effect on the continued effectiveness of 398a-e, permits fied at 25 U.S.C. §§ the state largely which was modeled on the taxation of mineral resource extraction on unal- 1924 Act. lotted executive order reservation land. See * Tribe, Apache Merrion v. Jicarilla panel appropriate finds this case for submis- majori- argument pursuant sion without to 28 U.S.C.A. ty point holding fails to 3(a) out that its would have 34(a). Fed.R.App.P. 9th Cir.R.

Case Details

Case Name: Blackfeet Tribe of Indians v. State of Montana, Director of the Montana Department of Revenue, Glacier County, Montana, and Pondera County, Montana

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 3, 1984

Citation: 729 F.2d 1192

Docket Number: 81-3041

Court Abbreviation: 9th Cir.