Tales from the Cert Pool: Montana Taxes at Crow

The Supreme Court denied cert in a case captioned Montana v. Crow Tribe of Indians, 484 U.S. 1039 (1988) (No. 87-343). The case involved the State’s attempt to impose severance and gross proceeds on a non-Indian mining company.

The cert pool memo (from a Rehnquist clerk no less) ripped the State’s argument:

[Montana]’s contention that its taxes should not be preempted because they fall on Westmoreland, rather than on the Crow Tribe itself, is ludicrous. The state severance and gross proceeds taxes have restricted the amount of taxation [Crow] can levy on its lessees. The CA9 found that the marketability of [Crow]’s coal was significantly diminished by [Montana]’s taxes, resulting in a corresponding decrease in the amount of money accruing to[Crow]’s coffers.

Cert Pool Memo at 7.

How times have changed. After Cotton Petroleum and Wagnon, states can strategically tax for the specific purpose of limiting on-reservation activities and all but eliminate tribal tax base.