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Tue, 25 Jan 2000
http://www.billingsgazette.com/region/20000125_reg10.html

Crow Tribe's 1995 resort tax upheld by Indian appeals court
By LORNA THACKERAY
Of The Gazette Staff

A 4 percent resort tax the Crow Tribe seeks to  impose on tourists, both Indian and non-Indian,  has been upheld by the Crow Court
of Appeals.

In a 38-page opinion issued earlier this month, the three-judge panel held that tribes still have broad authority to tax, even in light of recent
federal court decisions that have narrowed tribal jurisdiction over non-Indians. The tribes' authority to tax exceeds its powers of
adjudicating civil matters involving non-Indians, the judges wrote.

Their ruling represents the tribal court's final act in a case brought more than four years ago by five non-Indian businesses challenging
the resort tax approved by the Crow Tribal Council on Jan. 14, 1995. The decision affirmed a Jan. 5, 1998, ruling from a lower tribal court
upholding the tax.

The appeals court decision, however, doesn't mean the legal issues are all settled. In October, the same five businesses filed a lawsuit in
U.S. District Court in Billings challenging the tribe's right to impose or collect the tax. That lawsuit is still pending before Chief U.S. District
Judge Jack Shanstrom.

John Fredericks III, attorney for the tribe, said another case with almost identical facts is pending at the 10th Circuit Court of Appeals in
Denver. Although federal district court decisions in Montana are reviewed by the U.S. 9th Circuit Court of Appeals headquartered in
San Francisco, a ruling in the 10th Circuit would be looked at closely by other federal courts.

In the 10th Circuit case, attempts by the Navajo to impose a hotel tax is being considered, Fredericks said.

The Crow tax has a wide reach. It applies to gross receipts from all goods and services sold on the reservation in connection with a resort
business. That includes, campgrounds, dude ranches, guest ranches, hunting and fishing lodges, bed and breakfast establishments,
souvenir shops, hotels, motels, hunting and guiding services, and recreation equipment rentals. Under Crow law, the tax is to be
imposed on the consumer and be collected by the resort owner. The owner would be allowed to keep 2 percent of the tax to cover
administrative costs.

Non-Indian business owners challenging the tax paid it under protest for the first quarter of 1995, but have not paid since filing their
first legal action in tribal court about the same time.

Plaintiffs in the lawsuit are Gordon Rose and June Rose, doing business as Quill Gordon Fly Fishers; Big Horn Country Outfitters,
Inc.; Recreation Development Systems, Inc.; Joe S. Bassett, doing business as Schively Ranch; Miracle Trust, doing business as Little
Big Horn Camp; and Big Horn Business Association.

Their attorney, Jim Torske of Hardin, could not be reached for comment Monday.

Recently, federal courts reviewing tribal court jurisdiction over non-Indians on the reservation have sliced away at the tribe's civil
authority. A 1981 U.S. Supreme Court case that pitted Montana and the Crow Tribe against each other in a fight for control of the Bighorn
River is often used as the baseline. In that case, the court ruled that unless Congress has specifically authorized it, Indian tribes do not
have civil authority over non-Indians on non-Indian lands within reservation boundaries.

In 1997, the court further limited tribal court jurisdiction in a case that involved non-Indians involved in an accident on a state highway
through the Fort Berthold Reservation in North Dakota. The court ruled that a tribal court had no jurisdiction to hear civil matters arising
on a federally granted highway right-of-way . That ruling has been used to further erode tribal jurisdiction over non-Indians on the
reservations.

But the Crow Tribal Appeals court said in upholding the Crow resort tax that while those decisions were based largely on the status of
the land where non-Indians were operating - fee lands and federally granted rights of way - taxation was not necessarily bound by the same
limitations. Decisions in the Montana and North Dakota cases were based on narrow land-status issues and don't automatically apply
to reservation wide issues such as taxation.

Taxation has long been recognized by the courts as an essential power of tribal government, the judges said, and taxpayers have not
been limited to members of the tribe.

Although the plaintiffs in the case maintain that the tribe does not provide substantial benefits to justify the tax, the appeals court judges
said ample evidence was produced to show that the tribe does provide government services for the benefit of tourists. They include
law enforcement, fire protection, road construction and maintenance, wildlife management, education, public utilities services and health
and welfare services.

Four of the five business owners testified before the tribal court that their customers used Bureau of Indian Affairs roads; another said the
tribal fire department put out a fire that threatened his property; and another said that he called tribal police when disturbances occurred
at his business, the judges wrote.

At the same time the demand for services on the reservation is increasing, the amount of money provided by the Bureau of Indian
Affairs has been drastically reduced, the judges said. The tribe has to spend more of its own budget making up the difference, they said.

The ruling was signed by Chief Tribal Court Judge Glen Birdinground, Judge Donald A. Stewart Sr. and Special Judge Brenda C. Desmon.

---
Updated: Tuesday, January 25, 2000
Copyright © The Billings Gazette, a division of Lee Enterprises.

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