# Transcript of Record — British-American Oil Producing Co. v. Board of Equalization of Mont. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0076%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1936 - **Citation:** 299 U.S. 159 ## Text senate tame _—epeees TRANSCRIPT OF RECORD * NN e a : ee, tei. te 1 | Supreme Court of the United States +. QOTOBER TERM, “1986 ne No. 37 THE BRITISH- AMERICAN om PRODUCING CoM- PANY, PETITIONER, | © v8. “THE BOARD OF EQUALIZATION OF THE STATE '- OF MONTANA ET AL, ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF MONTANA [PEYVTION FOR CERTIORARI FILED APRIL. #3, 1994 | " CERTIORARI GRANTED: JUNE 1, 1906 ‘ 4 » 7, 7 . “ ~ : “e ‘- > ~ ° ‘ ° 7 - Supreme Court of the United States OOTOBER TERM, 1935 No. THE BRITISH-AMERICAN OIL PRODUCING co COMPANY, PETITIONER, ‘ . vs. THE BOARD OF EQUALIZATION OF THE STATE OF MONTANA ET AL. © ON‘PETITION FOR A WRIT OF CERTIORARI TO .THE SUPREME COURT OF THE STATE OF MONTANA INDEX. . \__-+ Original Print Proceedings in Supreme Court of Montana................. a 1 GEE 90.066 0600660606600600060006006642 06002 0eecbice 1 - 1 Exhibit “A”—Oil and gas mining lease................. -8 6 Exhibit “B”—Assignment of oil and gas mining lease. 18 14 MED ccc ancenhabheeseeedabaeabesasccsicc 2r 17 Complaint in intervention of The Blackfeet Indian Tribe... 22 17 Demurrer to complaint .........ccccccecccccccsccccess >: 28 21 . Demurrer to complaint in intervention ................... 29 21° Stipulation re amendment of complaint .................... 30 22 Exhibit “A”—Patent and certificate................... 31 23: Opinion, Anderson, J................0.. cunhatey Rieesas 33 25 ee St On. cecccaskdbaesscecnesapenoce 48 36 Objection of defendants to petition for icteesion lg Pee 56° 45 Order denying petition for rehearing...................... 61 49 Judgment and decree ... ...5.....cccccceees obcanan rer 62 $ See MED ccccccoatuccecces (omitted.in printing) .. 4 ; Order allowing cartiorari ....... SSererrrire TTT TTYL TTT Te ' 66 50. N 4a ‘ . a . e . r aa a . ° ° . . . | } ! . # ‘ ’ - ° ° q ly ‘ ‘i 2 ‘ . é ‘ Fs . ‘ ‘ e ‘ : “ ° = : » F P ° ‘ ? . one Mie i gat TBO obanbs BNE side Deein itl ld ata anna NS RIE Re INS ake Nn ee a ee en Pee =) » Bas = ated bag par dled tate paddy We A eR atin: hath teen ow oMaieiabe ‘‘The leasing of unallotted lands on Indian Reservations is provided for in Section 398 U. S. C. A., Title 25, (43 Stat. 244), and the leasing of lands for oil and gas purposes as well as for the purpose of mining metals is provided for by the Act of Sune 30, 1919, Chapter 4, Section 10, 41 Stat. 17, and Section 26, 41 Stat. 31. Unless we make the above classification of Indian lands and apply the several stat- utes to the different classes as above set forth then the. provisions of Section 399 U. S. C. A: Title 25, and the provisions of Section 10, Chapter 4, Act of June 30, 1919, (41 Stat. 17) are meaningless.’’ They are willing to tie section 399, Title 25,.U.S. C. A., to section 10 of Chapter 4, Act of June 30, 1919 (41 Stat. 17), but unwilling to tie section 398, Title 25, U. S. C. A., to see- tion 10 of Chapter 4, Act of June 30, 1919. Oil and gas in place are minerals but they’are not metalliferous minerals. (Northern Pacific Railway Co. v. Soderberg, 188 U. S. 526, 47.L. Ed. 575; Morgan v. United States, 169 Fed. 242; 40. C. J. 737.) Therefore, section 399 does not cover leases of unallotted lands for oil and gas mining purposes. The same is true of section 396, Title 25, U.S.C. A. But if, as counsel must concede, in view of the position they have taken, sec- tion 399 does cover leases of unallotted lands withdrawn from entry under mining laws for the purpose of mining for deposits of gold, silver, copper, and other valuable metal- liferous minerals, including magnesite, gypsum, limestone, and asbestos, in what section must the oil and gas leases [fol. 58] considered in this case find a place? The question has been admirably answered Wy the court itself “Tt therefore becomes necessary for us to examine into and determine whether the premise on which plaintiff founds its argument is sound. Trye, trust patents have been issued to individual allottees covéring all of the lands described in the lease, but in each of these patents the provision ‘is found reserving the oil and gas for the benefit of the Black- feet Tribe of Indians until Congress shall direct otherwise. It is noteworthy, in passing, that the lease, a copy of which ‘s attached to the exhibit, after reciting the dates and the names of the parties, declares that it is executed under and in pursuance of section 3 of the Act approved February 28, 1891 (26 Stat. 795), as amended by the Act approved May 29, 1924 (Public No. 458, 68th Congress). The amend- a 47 ment there referred to is section 398 of Title 25, U. S. C. A., providing as follows: ‘Unallotted lands on Indian reservations other than lands of the Five Civilized Tribes and the Osage Reservation sub- ject to lease for mining purposes for a period of ten years under the preceding section may be leased at public auction by the Secretary of the Interior, with the consent of the council speaking for such Indians, for oil and gas mining purposes for a period of not to’ exceed ten years, and as much longer as oil or gas shall be found in paying quanti- ties, and the terms of any existing oil and gas mining lease may in like manner be amended by extending the term thereof for as long as oil-or gas shall be found in paying quantities : Provided, that the production of oil and gas and other minerals on such lands may be taxed by the state in which gaid lands are located in all respects the same as . production on unrestricted lands, and the Secretary of the Interior is authorized and directed to cause to be paid the tax so assessed against the royalty interests on said lands: Provided, however, that such tax shall not become a lien or charge of any kind. or character against thé land or the property of the Indian owner.’ The forégoing section ap- plies only to unallotted lands. - ‘*As we view the situation, when the trust patents were issued containing the reservation of the oil and gas as well (fol. 59] as other minerals, including coal, pursuant to 41 Stat. 17, a distinct estate was thereby carved out of created consisting of the reserved minerals which the United States thereafter held in trust for the benefit of the Blackfeet Tribe; this estate was distinct, separate and apart from the estate or interest which the United States held in trust for the benefit of the individual Indian allottees (Superior Coal Co. v. Musselshell County, 98 Mont. 501, 41 Pac. (2d) 14); and.it follows that, as to the minerals, coal; oil and gas, there was no allotment of these lands. This construction, as we have already pointed out, is in accord with that adopted by the original parties to this es which was ap- proved by the Department of the Interior, the construction of which is not to be overturned unless clearly wrong, or unless a different construction is plainly required.’’ Under the Act of June 7, 1897 (30 Stat. 62, 72), Quapaw Indians were empowered to lease their lands for farming Mie AS I OL Sa 9 be aber Be A = Mla OL A 2 — i aaa 48 : : a or grazing purposes for a term of three years or for mining purposes for a term of ten years. Under the Act of March 3, 1909 (25. U. S.-C. A..396), Indians generally, except mem- bers of the Five Civjlized Tribes and Osage Indians in Oklahoma, were empowered to lease their lands for mining purposes for any term of years, with the consent of the Secretary of the Interior. In Hallam v. Commerce Mining & Royalty Co., 49 Fed. (2d) 103, cert. denied 284 U. S. 643, ; it was held that Quapaw Indians were entitled to the benefit : of section 396 and so authorized to lease their lands for mining purposes under its provisions with the consent of the Secretary of the Interior. : vat See Seemann | The letter of the Commissioner of Indian Affairs which 4 is attached to the petition for a rehearing giyes no consider- ation whatever to section 398. Besides, it states nothing new so far as the taxation of Indian lands is concerned. In the petition for a rehearing it is broadly intimated that in Barnsdall Refineries v. Oklahoma Tax Commission, 41:Pac. (2d) 918, and in State of Oklahoma v. Barnsdall Refineries, 296 U. S. —, 80 L. Ed. —, affirming the judg- ment in the former, both the Supreme Court of Oklahoma and the Supreme Court of the United States construed @ (fol. 60] section 398 as consenting to a tax in the nature ofa property tax. Asa matter of fact these courts did not con- strue section 398 at all, but did construe the Act of Congress of March 3, 1921, 5 (41 Stat. 1250), authorizing the levy and collection of a gross production tax upon. all oil and gas pro- duced in Osage County, Oklahoma, and the gross production tax law and an excise tax law of Oklahoma. : It was held that the Act of Congress was not broad enough to-cover an \\f excise tax. In its opinion the Supreme Court of the United States said: ‘‘The Supreme Court of Oklahoma emphasized the fact that the % of a cent per barrel tax, denominated by the statute an ‘excise’, is an excise tax distinguishable from a property tax in liéu of which the gross production : tax is levied.’? Counsel for plaintiff in their brief and the i Supreme Court in its opinion refer to the tax provided by section 2398, Revised Codes 1921, as amended by section 1 of Chapter 67, Laws of 1923, as the ‘gross production tax.’’ - It is similar in its scope to the gross production tax pro- vided by section 12434, Oklahoma Statutes 1931. vy P | 7 49 We submit the petition for a rehearing should be denied. Raymond T. Nagle, Attorney General; Jeremiah J. Lynch, First Assistant Attorney General, Attor- j neys for Defendants. | File endorsement omitted. | fol. 61] Iw Supreme Court or Montana [Title omitted] Orper Denyino Petition For Renearinc—Feb. 8, 1936 Motion for rehearing read, considered and denied. John A. Matthews; Presiding-Chief Justice. Attest: A. T. Porter, Clerk. | fol. 62] In Supreme Court oF Montana Tue British-AMERIcaN Ort Propuctne Compayy, a Corporation, Plaintiff, vs. Tue Boarp or EQuaALiIzaTION OF THE STaTE OF Montana and James H. Stewart,gJohn J. Greene and Sam D. Goza, Members of the te Board of Equalization of the State of Montana, Defendants. JUDGMENT AND Decree—Filed Feb. 19, 1936 This matter came regularly on for hearing before the above entitled Court on the 10th day of December, 1935, upon the verified complaint of the plaintiff, The British- American Oil Producing Company, a corporation, the veri- fied complaint in intervention of the Blackfeet Indian Tribe, and the demurrers of the deferidants, the Board of Equali- zation of the State of Montana, James H. Stewart, John J. Greene and Sam D. Goza, members of the State Board of Equalization of the State of Montana, Messrs. E. K. Cheadle, Jr., and G. §. Frary appearing as counsel for said * > > . > Biotin netsiawrnives ACR bg Bm s 50 plaintiff, the Honorable Raymond T. Nagle, Attorney Gen- eral, and the Honorable J. J. Lynch, Assistant Attorney General, appearing on behalf of the defendants, and H. C. Hall appearing as counsel for The Blackfeet Indian Tribe. Whereupon oral argument was presented to the Court and briefs*were filed by the respective parties and said matter was submitted to the Court. Wherefore this Court having considered said argument and said briefs and pleadings herein and the law applicable thereto and being in all things duly advised in the premises ordered that the demurrers of said defendants to the com- plaint of plaintiff and the complaint in intervention of The Blackfeet Indian Tribe be sustained upon the merits and (fol. 63] said complaint and complaint in intervention be dismissed. P Wherefore by reason of the law and the premises, it is hereby ordered, adjudged and decreed that the demurrers of the defendants the Board of Equalization of the State of Montana, and James H. Stewart, John J. Greene and Sam D. Goza, members of the State Board of Equalization of the State of Montana to the complaint of plaintiff and the complaint in intervention of the Blackfeet Indian Tribe be and the same are hereby in all respects sustained and . said complaint of plaintiff and the complaint in intervention of The Blackfeet Indian Tribe be and they are hereby in all respects dismissed upon the merits. Dated this 19th day of February, 1936. By the Court. ‘John A. Mathews, Acting Chief J ustice. [File endorsement omitted. ] [fols. 64 &65] Clerk’s certificate to foregoing transcript - omitted in printing. ~ (fol. 66] Supreme Court or THE UnirTep STATES - Orper ALLOWING Certiorartr—Filed June 1, 1936 The pétition herein for a’ writ of certiorari to the Su- preme Court of the State of Montana is granted. And it is.further ordered that the duly ¢ertified copy of the tran- script of the proceedings below which accompanied the petition shall be treated as though filed in response to suchi ond ae aN a Hak Rarer ne Sed us Natio an edit tia Snleina, Sani Ca at -_—- + “+ - ? pe — SS , : . h salah: see eis sae PR ek Ant eee Ee er b] . = ee ee eee ee ee ee ee ait span ™ saves sasiccn Nabe ts — st Oot nee ten» . . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0076%3A1. Public record. Not legal advice.