54 P.2d 117 | Mont. | 1936
Plaintiff, the owner of a producing oil and gas lease on certain lands within the Blackfeet Indian Reservation, brought this original proceeding to secure an injunction against the State Board of Equalization and the individual members thereof in their official capacity, to enjoin them from collecting the "corporation license tax," the "operators' net proceeds tax," the "gross production tax," and the "royalty owners' net proceeds tax" arising out of the production and recovery of oil from the leased lands and premises.
Plaintiff in its complaint alleges its corporate capacity and the official capacity of the defendants. Myrtle Billideaux Hardy, an Indian of the Blackfeet Reservation, was the owner of an allotment under a certain "trust patent" granted by the United States of America on February 28, 1918, subject to the laws of the United States. On August 8, 1932, pursuant to such laws and the regulations of the Department of the Interior, and for a good and valuable consideration, the allottee, as lessor, executed and delivered to one P.T. Sweeney an oil and gas lease describing the lands included in her allotment. By the terms of this lease it extended for a period of ten years from and after its approval by the Secretary of the Interior, and for as long thereafter as oil and gas are produced therefrom in paying quantities. The lease was approved by the Secretary of the Interior on November 15, 1932. Thereafter Sweeney, the lessee, for a good and valuable consideration, assigned the lease by an instrument in writing unto the plaintiff, and all of his right, title and interest therein, which assignment was on November 8, 1935, approved by the Secretary of the Interior as required by law, and in pursuance to the rules and regulations of the Department of the Interior. Pursuant to the *271 terms of the lease plaintiff proceeded to develop the lands therein described, and on or about May 1, 1934, completed a well on these lands, producing oil in paying quantities, and since that date this well, or others located on the lands, have been producing oil in paying quantities. It is asserted in the complaint that plaintiff, in accepting the lease and proceeding with the development of the lands in question, was acting as, and now is, an instrumentality and agent of the United States of America, and therefore the state of Montana is without power to enforce, as against the plaintiff, any of the enumerated taxes. The plaintiff alleges the nature of, and the statutory authority for, each of the taxes, and that the defendants are attempting and threatening to assess, levy and collect these taxes, all of which are said to be based on oil and gas produced by it as an instrumentality and agent of the United States, and that, unless restrained, they will continue to attempt to compute, assess, levy and collect taxes on the crude oil produced from these lands. The complaint contains other allegations necessary to invoke the original jurisdiction of this court.
The Texas Company has by leave of court filed a complaint in intervention, containing allegations similar to those found in the complaint of plaintiff, but with reference to another tract of land within the same reservation, on which it holds a lease from another allottee. The Blackfeet Tribe has likewise, by leave of court, filed a complaint in intervention on behalf of the tribe and the individual allottees similarly situated to the allottee in the lease described in plaintiff's complaint.
The defendant board has filed separate demurrers to all of[1] these complaints, on the ground that they fail to state facts sufficient to constitute a cause of action. In its brief filed subsequent to oral argument on these demurrers, it is asserted that this court is without jurisdiction to entertain the complaint of the Blackfeet Tribe and it, the tribe, without capacity to sue. This argument presents a serious question. (United States v. Candelaria,
The Corporation License Tax Law provides, sections 2296 to 2304, inclusive, Revised Codes 1921, as amended by Chapter 166, Laws 1933, for a tax "of two (2) per centum upon the total net income received by such corporation in the preceding fiscal year from all sources within the State of Montana," etc. (Sec. 2296, as amended by Laws 1933, Chap. 166, sec. 1.) Certain corporations are without the provisions of the Act, none of which are here involved. It contains numerous provisions with reference to the manner of computing the tax, providing for deductions, etc., not here important.
Section 2398, as amended by Chapter 67 of the Laws of 1923, section 1, provides in part as follows: "Every person engaging in or carrying on the business of producing, within this state, petroleum, or other mineral or crude oil, or engaging in or carrying on the business of owning, controlling, managing, leasing or operating within this state any well or wells from which any merchantable or marketable petroleum or other mineral or crude oil is extracted or produced, sufficient in quantity to justify the marketing of the same, must, for the year 1923, and each year thereafter, when engaged in or carrying on any such business in this state, pay to the state treasurer, for the exclusive use and benefit of the State of Montana, a license tax for engaging in and carrying on such business in an amount equal to two per centum of the total gross value of all petroleum *273 and other mineral or crude oil produced by such person within this state during such year." We will refer to this hereafter in the opinion as the "gross production tax."
Section 2089, Revised Codes 1921, as amended by Chapter 188 of the Laws of 1935, section 1, provides: "Every person, partnership, corporation, or association, engaged in mining * * * from or upon any mine whatsoever containing * * * petroleum, natural gas, or other valuable mineral or mineral deposits must on or before the thirty-first day of March in each year make out a statement of the gross yield of the above named metals or minerals from each mine owned or worked by such * * * corporation." The statement is to be made by proper officers to the defendant board and is to contain the various matters enumerated in the section.
By the terms of section 2090, as amended by section 2 of Chapter 188 of the Laws of 1935, it is made the duty of the defendant board to compute the gross value of the product in dollars and cents so reported, and to calculate and compute the net proceeds by making certain deductions from the gross product as provided in the section.
Under section 1 of Chapter 188 of the Laws of 1935, the operator is required to furnish the defendant board with the names and addresses of any and all persons owning or claiming any royalty interest in the product of the mine and the proceeds derived from its sale, and the amounts paid or yielded as royalty to each of such persons during the period covered by the statement. By section 3 of Chapter 188 the board is directed on receipt of the schedule setting forth the names and addresses of persons owning or claiming royalty, to assess the same at the full cash value of the money or product yielded during the preceding year, to be taxed on the same basis as the net proceeds of mines as provided by section 1999, Revised Codes of 1921. By section 5 of Chapter 188, amending section 2091, Revised Codes 1921, the board is directed to transmit at a specified time the valuation of the net proceeds of mines and mining claims for the purposes of taxation, to the county clerks *274 of the respective counties, to be placed on the assessment-roll of net proceeds of mines. By section 6 of the same Act the defendant board is directed to transmit the royalty lists to the county clerks of the respective counties, who must prepare a tax roll in the personal property assessment-book in the name of the operator of the mine, "and such assessments when entered shall have all the force and effect as if made in the names of the owners of such royalty individually as well as against the operator. The county treasurer shall proceed to give full notice thereof to such operator and to collect the same in manner provided by law. The operator or producer shall be liable for the payment of said taxes, and same shall be payable by, and shall be collected from, such operators in the same manner and under the same penalties as provided for the collection of taxes upon net proceeds of mines; provided, however, that after payment of such tax such operator may recover or withhold from any proceeds of royalty interests, either in kind or in money, coming into his hands, the amount of any tax paid by him upon such royalty or royalty interest."
The first contention of the defendant board is that the[2, 3] Blackfeet Indian Reservation is an Executive order reservation, and that Congress by the Act of March 3, 1927 (44 Stat. 1347, secs. 1-3, 25 U.S.C.A., secs. 398a, 398b and 398c), has given its consent to the imposition of these taxes. The plaintiff asserts that the reservation was created by treaty, or congressional Act, and that therefore these sections are without application.
On October 17, 1855, a treaty was made and concluded within what is now the state of Montana, then in the Territory of Nebraska, between commissioners on the part of the United States and the Blackfeet Tribe and other tribes of Indians. (11 Stat. 657.) By Article 4 a tract of country was described which "shall be the territory of the Blackfoot nation, over which said nation shall exercise exclusive control, excepting as may be otherwise provided in this treaty." By Article 7 it was agreed that the citizens of the United States might live and pass unmolested through the countries occupied and claimed *275 by the Indian tribe. By Article 8 consent was given to the United States to construct roads, lines of telegraph, and military posts, to build houses for agencies, missions, schools, etc., and to occupy permanently as much land as might be necessary for the various purposes enumerated, including the use of wood for fuel and land for grazing; and the navigation of all lakes and streams was declared to be forever free to the citizens of the United States. This treaty was ratified by the Senate of the United States on April 15, 1856 (11 Stat. 662), and on April 25, President Franklin Pierce accepted, ratified and confirmed the treaty. On July 5, 1873, President Grant by Executive order, on the recommendation of the Department of the Interior, withheld from entry and settlement as public lands all of that portion of the state of [then territory of] Montana lying west of the territory of Dakota, north of the Missouri River and the Sun River, and east of the Continental Divide, and ordered that the same be set apart as a reservation for the Blackfeet Tribe and other tribes therein enumerated. (1 Kappler's Indian Affairs, p. 854.)
Congress by the Act of April 15, 1874 (18 Stat. 28), provided that a described tract of country in the territory of Montana "be, and the same is hereby, set apart for the use and occupation of the" Blackfeet Tribe and other tribes therein enumerated. This tract was somewhat less than, but within, the area described by President Grant in his Executive order of July 3, 1873. President Grant, by Executive order on August 19, 1874, directed that the tract included in his Executive order of July 5, 1873, and not embraced within the tract set apart by the Act of Congress of April 15, 1874, be set apart for the use and occupation of the Blackfeet Tribe and the other tribes. President Hays, by Executive order on July 13, 1880, added certain additional territory to the Blackfeet Reservation. (1 Kappler's Indian Affairs, p. 856.) Congress by the Act of May 1, 1888, approved an agreement theretofore made between the commissioners on the part of the United States and the Blackfeet, whereby the Blackfeet Reservation was distinctly *276 described (25 Stat. 129), and in consideration of which they relinquished their claim to much of the land theretofore included within their reservation. Another and later agreement with the Blackfeet, approved by Act of Congress on June 10, 1896 (29 Stat. 353), still further reduced the reservation. By Article 5 of the agreement it was expressly provided that there should be no allotment in severalty of the land, but that the whole reservation should continue to be held by these Indians as a communal grazing tract. By the Act of March 1, 1907 (34 Stat. 1035) it was provided: "That so soon as all the lands embraced within the said Blackfeet Indian Reservation shall have been surveyed the Commissioner of Indian Affairs shall cause allotments of the same to be made under the provisions of the allotment laws of the United States to all persons having tribal rights or holding tribal relations and who may rightfully belong on said reservation. That there shall be allotted to each member forty acres of irrigable land and two hundred and eighty acres of additional land valuable only for grazing purposes; or, at the option of the allottee, the entire three hundred and twenty acres may be taken in land valuable only for grazing purposes."
The lands embraced within the reservation as finally reduced were included within the boundaries of all the reservations, whether made by treaty, agreement, congressional Act, or Executive order, to which we have referred. In the case ofUnited States v. Midwest Oil Co.,
"In the sense that these lands may have been intended for public use, they were reserved for a public purpose. But they were not reserved in pursuance of law, or by virtue of any general or special statutory authority. For it is to be specially noted that there was no Act of Congress providing for bird reserves or for these Indian reservations. There was no law for the establishment of these military reservations or defining their size or location. There was no statute empowering the President to withdraw any of these lands from settlement, or to reserve them for any of the purposes indicated." In the case from which we have just quoted, and also the case of Mason v.United States,
It might be well at this point to review the historical reason necessitating the passage of what are now sections 398a, 398b and 398c, Title 25 U.S.C.A. Subsequent to the enactment of the general oil and gas leasing law, the Act of February 25, 1920, 41 Stat. 437 (30 U.S.C.A., sec. 181 et seq.), the Secretary *278
of the Interior held that the provisions of that Act were applicable to Executive order Indian reservation lands. (49 Land Dec. 139.) Later, on May 12, 1924, Attorney General Stone in an exhausted opinion to the President of the United States (34 Op. Attys. Gen. 171), and on May 27, 1924, in a like opinion to the Secretary of the Interior (34 Op. Attys. Gen. 181), held that Executive order Indian reservation lands were without the scope of the general oil and gas leasing Act. In the first session of the Sixty-Ninth Congress, Senate Bill 4152, relating to the leasing of unallotted lands in Executive order Indian reservations, passed both houses of that body. President Coolidge in his veto message on this measure (vol. 67, part II, Congressional Record, 12641) reviewed the effect of the decision by the Land Department and the opinions of the Attorney General cited supra, and further stated that at the time of the Attorney General's opinion twenty permits had previously been issued by the Secretary of the Interior, and that applications for more than 400 were pending, and called attention to the fact that litigation to determine the question was then pending before the Supreme Court of the United States in the case of United States
v. Harrison, which was dismissed on stipulation. (UnitedStates v. McMahon,
By the second proviso of the Enabling Act, section 4, providing for the admission of the state of Montana into the Union (Act of February 22, 1889), it was declared: "That the people inhabiting said proposed states do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States. * * * But nothing herein, or in the ordinances herein provided for, shall preclude the said states from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any Act of congress containing a provision exempting the lands thus granted from taxation: but said ordinances shall provide that all such lands shall be exempt from taxation by said states so long and to such extent as such Acts of congress may prescribe." These identical words were incorporated into the second proviso or section of Ordinance No. 1 to our Constitution. By the sixth section of the same ordinance it is declared that "the ordinances in this article shall be irrevocable without the consent of the United States and the people of said state of Montana." The same Enabling Act as our own applied to the admission of the state of South Dakota. *280
The pertinent portion of the patent issued to the allottee is[4] as follows: "Now know ye, that the United States of America, in consideration of the premises, has allotted, and by these presents does allot, unto the said Indian the land above described, and hereby declares that it does and will hold the Land thus allotted (subject to all statutory provisions and restrictions) for the period of twenty-five years, in trust for the sole use and benefit of the said Indian and at the expiration of said period the United States will convey the same by patent to said Indian in fee, discharged of said trust and free from all charge and incumbrance whatsoever," etc.
The effect of such a "trust patent" was given consideration by the United States Supreme Court in the case of United States v.Rickert,
In the above case the state of South Dakota sought to tax the improvements and the lands held by the Indian allottee. Under the laws of South Dakota the improvements were taxed as personal property. The court there, speaking with reference to the right of the state to tax the lands, said: "If, as is undoubtedly the case, these lands were held by the United States in execution of its plans relating to the Indians, — without any right in the Indians to make contracts in reference to them, or to do more than to occupy and cultivate them, — until a regular patent conveying the fee was issued to the several allottees, it would follow that there was no power in the state of South Dakota, for state or municipal purposes, to assess and tax the lands in question until at least the fee was conveyed to the Indians. These Indians are yet wards of the nation, in a condition of pupilage or dependency, and have not been discharged from that condition. They occupy these lands with the consent and authority of the United States; and the holding of them by the United States under the Act of 1887, and the agreement of 1889, ratified by the Act of 1891, is part of the national policy by which the Indians are to be maintained as well as prepared for assuming the habits of civilized life, and ultimately the privileges of citizenship. To tax these lands is to tax an instrumentality employed by the United States for the benefit and control of this dependent race, and to accomplish beneficent objects with reference to a race of which this court has said that `from their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen.' (United States v. Kagama,
And again it was held in the same decision that under the same constitutional provision in the state of South Dakota as we have written into Ordinance No. 1 of our Constitution, and under the identical section of the Enabling Act, the Constitution of the state of South Dakota withheld all power from the taxing officials of the state to tax the lands of an Indian allottee. The court said: "We pass by, as unnecessary to be considered, whether the above provision in the Act of Congress of 1889 had any legal efficacy in itself, after the admission of South Dakota into the Union upon an equal footing with the other states; for the same provision, in the state Constitution, deliberately adopted by the state, is, without reference to the Act of Congress, the law for its legislature and people, until abrogated by the state. Looking at that provision, we find nothing in it sustaining the contention that the county of Roberts has any authority to tax these lands. On the contrary, it is declared in the state Constitution that lands within the limits of the state, owned or held by any Indian or Indian tribe, shall, until the title has been extinguished by the United States, remain under the absolute jurisdiction and control of the Congress of the United States. And when the state comes to declare, in its Constitution, what taxes it shall not be precluded from imposing, the provision is that it shall not be precluded from taxing, as other lands, `any lands owned or held by any Indian who has severed his tribal relation, and has obtained from the United States, or from any person a title *283
thereto by patent or other grant.' (S.D. Const., Art. 22, subd. 2.) The patent or grant here referred to is the final patent or grant which invests the patentee or grantee with the title in fee, that is, with absolute ownership. No such patent or grant has been issued to these Indians. So that the appellee cannot sustain the taxation in question under the clause of the state Constitution to which he refers, and the right to tax these lands must rest upon the general authority of the legislature to impose taxes. But, as already said, no authority exists for the state to tax lands which are held in trust by the United States for the purpose of carrying out its policy in reference to these Indians." This decision was approved, adhered to, and applied under the Oklahoma Constitution, the provisions of which were not as general and all-inclusive on this subject as are our own, in the case of McCurdy v. United States,
We have said that the legislature of this state has no power[5] to impose a tax of any character on any property or instrumentality of the federal government. (Ford v. City ofGreat Falls,
Having determined that the Blackfeet Indian Reservation is not an Executive order Indian reservation, and counsel having admitted that the lands in question are lands allotted in severalty, we point out that the authority for the lease is found in section 396, Title 25, U.S.C.A., which provides: "All lands allotted to Indians in severalty, except allotments made to members of the Five Civilized Tribes and Osage Indians in Oklahoma, may by said allottee be leased for mining purposes for any term of years as may be deemed advisable by the Secretary of the Interior; and the Secretary of the Interior is authorized to perform *284 any and all Acts and make such rules and regulations as may be necessary for the purpose of carrying the provisions of this paragraph into full force and effect. (Mar. 3, 1909, Chap. 263, 35 Stat. 783.)" It will be noted that no congressional consent to the imposition of state taxes is found in this section, although such consent is expressly given in section 398, of the same title, with reference to the leasing of unallotted lands for oil and gas, and also in sections 398a, 398b and 398c, relating to[6] lands in Executive order Indian reservations. There being no congressional consent expressed in the section authorizing the taxing of these trust patented lands, the question arises whether these various taxes here may be sustained.
Questions not unlike those under consideration have been before the Supreme Court of the United States on numerous occasions. In the case of Choctaw, O. Gulf R. Co. v.Harrison,
This court, in the case of Mid-Northern Oil Co. v. Walker,
In the case of Indian Territory Illuminating Oil Co. v.Oklahoma,
In the case of Jaybird Min. Co. v. Weir,
It appears from the foregoing authorities that in the absence of congressional consent to the imposition of state taxes, so far as the operators' net proceeds tax is concerned, and also the gross production tax, the state of Montana is without authority to impose these two taxes on the production of oil from lands held under a trust patent. True, it may appear that there is little reason why the distinction should be made between lands under a trust patent and lands on an Executive order Indian reservation, or between lands unallotted or a reservation created by Act of Congress. The distinction, whether justified or not, results from the fact that in the first instance Congress has not consented to the imposition of state taxes; and in the latter, congressional consent has been given. If criticism is to be leveled at this result, it must be directed at the power which created this distinction, and the sole power which has the authority to destroy it, namely, the Congress of the United States.
In the case of Carpenter v. Shaw,
We have said of the nature of a royalty interest in theMarias River Syndicate v. Big West Oil Co.,
By Article 6 of the Agreement of 1888, approved by Congress (25 Stat. 115), it was declared with reference to allotments that at the end of the trust period of 25 years, the United States would "convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all *290 charge or incumbrance whatsoever." The provisions of the agreement entered into subsequently and approved by Act of Congress (29 Stat. 356) specifically provided that the agreements contained in Article 6 were thereby "continued in full force and effect." (Article 9.) The imposition of the tax on Indian lands was held to be an encumbrance in the case of United States v.Rickert, supra. (See, also, Morrow v. United States, (C.C.A.) 243 Fed. 854.) Likewise, we are impelled to hold that the royalty interests accruing to the Indian allottee may not, under the foregoing authorities, become the subject of state taxation.
The case of Gillespie v. State of Oklahoma,
The case of Group No. 1 Oil Corporation v. Bass,Collector,
In the case of Burnet v. Coronado Oil Gas Co.,
We conclude that the facts disclosed by plaintiff's complaint and the complaint of the Texas Company in intervention are insufficient to warrant the enjoining of the defendant board from proceeding to impose and collect the corporation license tax, including in the computation the income from restricted Indian lands held under trust patents. *293
Let judgment be entered enjoining the State Board of Equalization from assessing, imposing, levying, or collecting the "operators' net proceeds tax," the "royalty owners' net proceeds tax," and the "gross production tax" from oil and gas produced on the lands and premises described in the plaintiff's complaint and in the complaint in intervention of the Texas Company, until such time as appropriate and valid congressional consent is given to the imposition of any or all of these taxes.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES MATTHEWS, STEWART and MORRIS concur.