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NOVEMBER 28, 2000

The fate of a tax imposed on businesses by the Crow Tribe of Montana may lie with the Supreme Court's decision involving the Navajo Nation.

The Supreme Court on Monday agreed to take on the Navajo case. It comes after a ruling by the the Tenth Circuit Court of Appeals, who in May said the tribe's eight percent hotel occupancy tax could be imposed on non-Indians, whether or not they stayed on hotels located on non-Indian land.

A court in the Ninth Circuit, however, ruled otherwise when confronted with the Crow Tribe's four percent resort tax. US District Court Judge Jack Shanstrom for the District of Montana ruled in August that the tax could not be assessed on non-Indian businesses on non-Indian land.

John Fredericks III, a lawyer who handled the case for the tribe, predicted in July that the Supreme Court would step in to resolve the issue. Although courts in each circuit aren't required to follow one another's decisions, a ruling by the Supreme Court would apply to both.

But there appear to be differences which would prevent the Crow Tribe from prevailing even if the Supreme Court were uphold the Navajo tax. In general, tribes don't have authority to regulate activities of non-Indians on non-Indian land except in two cases: 1) when non-Indians enter into a consensual relationship with the tribe; or 2) if the activities of non-Indians affect the political integrity, the economic security or the health and welfare of the tribe.

Shanstrom said the Crow's tax was illegal because it satisfied neither exception. In particular, he said the tribe did not provide any government services to the businesses or its customers. In contrast, the 10th Circuit found that the Navajo Nation provided fire, police, and other services to hotel guests.

Another factor appears to weigh negatively for the Crow. In several cases involving the tribe, the ruling has set down or clarified limitations to tribal authority, as the Supreme Court did in 1981 and 1985, or a decision favoring them has been overturned, which the Supreme Court did in 1998.

Most recently, the Ninth Circuit Court of Appeals struck down their tax on a public utility, applying a 1997 Supreme Court decision.

Get the Crow Case:
Big Horn v. Adams (9th Circuit. No. 99-35799. July 2000)

Get the Navajo Case:
Atkinson v. Joe, et. al (10th Circuit No. 982247. May 2000)

Related Cases:
Montana v. US (US Sup Ct. 450 US 544. 1981)
Strate v. A-1 Contractors (US Sup Ct. 520 US 438. 1997)
Natl Farmers Union Ins Cos. v. Crow Tribe (US Sup Ct. 471 US 845. 1985)
Montana v. Crow Tribe (US Sup Ct. 000 US 96-1829. 1998)

Relevants Links:
The Crow Court of Appeals - www.littlehorn.com/CCA_Home.htm
The Crow Tribal Council - tlc.wtp.net/crow.htm

Related Stories:
Crow tax dispute continues (Tribal Law 11/22)
Crow may appeal tax case to Supreme Court (Tribal Law 09/19)
Crow lose another taxation case (Tribal Law 08/10)
The effects of the Crow tax ruling (Tribal Law 07/21)
Court rules against Crow tax (Tribal Law 07/18)