Petition — New Mexico v. Mescalero Apache Tribe

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Text

80-778

Supreme Court, U.S.

FILED

NOV 12 1980

IN THE

MICHAEL RODAK, JR, CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

No.

STATE OF NEw MEXICO AND HAROLD F. OLSON,

Individually and as Director, New Mexico

Department of Game and Fish,

Petitioners,

MESCALERO APACHE TRIBE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JEFF BINGAMAN

Attorney General of

New Mexico

THOMAS L. DUNIGAN

Deputy Attorney General

P.O. Drawer 1508

Santa Fe, New Mexico 87501

(505) 982-6993

Paut A. LENZINI

CHAPMAN, DUFF AND PAUL

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 624-8870

Attorneys for Petitioners

QUESTIONS PRESENTED

1. Whether the Mescalero Apache Tribe has “inherent

authority” over wildlite within the Mescalero Apache Reserva-

tion which preempts the application of State laws to non-

Indians hunting or fishing within the Reservation.

2. Whether the authority of the State of New Mexico to

impose its game and fish laws on non-Indians hunting or fishing

on the Mescalero Apache Reservation has been preempted by

federal legislation or treaty stipulation.

3. Whether the application of State game and fish laws to

non-Indians hunting or fishing on the Mescalero Apache Reser-

vation infringes on the right of the Mescalero Apache Tribe “‘to

make its own laws and be governed by them” contrary to

Williams v. Lee, 358 U.S. 217 (1959).

INDEX

is cercdiccidetsberseennedécnessrvocosvousnscoce

Neen oa scsctecnsansesseosees

Se UE A MIENECE BEEP 0. ecsccccccsseccennssccssenssessrooncoes

TREATY AND STATUTORY PROVISIONS _IN-

ed cislhinerscevesctotocseseevcvoonsereccvoncoee

REASONS FOR GRANTING THE WRIT OF CER-

catches pianadanensescextariccensseesorences

Il.

Ill.

IV.

The Decision of the Tenth Circuit Presents a

Direct Conflict with Rulings of the Ninth Circuit

and Other Courts on a Recurring Issue of Impor-

The Tenth Circuit’s Conversion of Limited Tri-

bal Sovereignty Into Exclusive Territorial Sover-

eignty Precludes the State’s Legitimate Interest

in Regulating the Activities of Non-Indians.........

The Tenth Circuit’s “Sources of Preemption,”

Broadly Based Upon Misinterpretation of

Treaty and Statute, Would Oust State Power

Over Many Non-Indian Activities on a Reserva-

os saseasbnoenouebansce

The Ruling Below That Application of State

Game Laws to Non-Indians Would Infringe

Tribal Self-Government Conflicts With Deci-

sions of This and Other Federal Courts and

Would Significantly Expand the Exclusionary

RS ©

Neen esl css linervecnsesensncevsecsesovesesessoors

Page

PER ee iaiatiich lketeteietseis descia phaciccsiahasscepecsatiestoclanabdapeibanilocmg

Opinion and Judgment of Court of Appeals......... la

Memorandum and Judgment of District Court.... 30a

Treaty With the Apaches, July 1, 1852, 10 Stat.

RUG EE sche tnndhichaierocaadabinenan EEE de 47a

New Mexico Enabling Act, 36 Stat. 557(!910).. 48a

Indian Reorganization Act of 1934, 25 U.S.C.

OF APO siiccsediiaibsnlcedibesasnvietidlgiiaitindnenasigminmeaiuiadaeneiine 49a

Public Law 83-280, 67 Stat. 558 (1953), as

amended, 18 U.S.C. § 1162(b)...................000... 50a

ill

CITATIONS

Page

CASES:

Confederated Tribes of the Colville Indian Reser-

vation v. State of Washington, 591 F.2d 89

eS yf SONS OEE Teor are eE 11

Eastern Band of Cherokee Indians v. North

Carolina Wildlife Resources Commission, 588

F.2d 75 (4th Cir. 1978), petition for writ of

certiorari voluntarily dismissed, 48 U.S.L.W.

pF Re, ee 8,11

Ex Parte Crosby, 38 Nev. 389, 149 P. 989

A.) PASSER SAREE ING, ple RCAC 7

Fort Mojave Tribe v. County of San Bernadino,

543 F.2d 1253 (9th Cir. 1976), cert. denied,

I cree acasenesigunnenn 15,18,20

Jicarilla Apache Tribe v. United States, 601 F.2d

I OP WE casensctheensveneneosceecsodonesnees 13,14

Kennerly v. District Court of Montana, 400 U.S.

NN ic hecinandsisusiteip cdcadisieahinanetoeomcssveuee 10

Mescalero Apache Tribe v. Jones, 411 U.S. 145

IT dis sxdsslicdanieidtaclia Nidneainili ck ediuass ds psabdetetinennanis 17,20

Mescalero Apache Tribe v. O’Cheskey, 625 F.2d

967 (10th Cir. 1980), reh. denied, August 25,

a siecadinl airs diesen Cen sdnddnactapanstanceaepiepsinasian 12,13,17

Moe v. Confederated Salish & Kootenai Tribes,

ARR I TID a siiciicccckarsncincasespsaancnsiacnnobes 20

Montana ex rel Nepstad v. Danielson, 149 Mont.

ig MEE ct PEC WIT P vcascccenecnsenccensiccoseinneess 7

Oklahoma Tax Commission v. Texas Company,

EN I FIED a iichntcsdptecaeibidonwisicasixéniniptnveine 20

Oliphant v. Suquamish Tribe, 435 U.S. 191

| TERESI De re SOR AB cen Ne RO Oe 15

Organized Village of Kake v. Egan, 369 U.S. 60

f , 8 ERAS Rn eat an pe Arc 13

State of California v. Quechan Tribe of Indians,

425 F. Supp. 969 (S.D. Calif. 1977), rev'd on

other grounds, 595 F.2d 1153 (9th Cir. 1979).. 7,15,16,

: 18,20

State of Washington v. Confederated Tribes of

Colville Indian Reservation, 48 U.S.L.W. 4668

pp GE | Enna 20

United States v. State of Montana, 604 F.2d

1162 (9th Cir. 1979), cert. granted, No. 79-

1128, 48 U.S.L.W. 3661 (April 14, 1980)........ a

United States v. State of New Mexico, 590 F.2d

ee ay BPD itisscntdecasaiesninadbenaasiaaccarts 11

United States v. Winans, 198 U.S. 371 (1905) .... 9

United States v. Wheeler, 435 U.S. 313 (1978) ... 15,16

White Mountain Apache Tribe v. Robert M.

Bracker, 48 U.S.L.W. 4897 (1980)..............0000 10,16,17

White Mountain Apache v. State of Arizona, et

al., No. Civ. 77-867 (D. Ariz. June 13, 1978),

appeal docketed, No. 78-3427 (9th Cir.

PIN Sy, TOPIED cnchessvaxsrvuscsscenomatiecasseninnien 7,11,15,

18,20

Williams v. Lee, 358 U.S. 217 (1959) 0.0... cece 7

STATUTES

Federal Trespass Law, 18 U.S.C. § 1165.............. 7

Indian Reorganization Act of 1934, 25 U.S.C.

Sp a isicinicecaichiebssancseteeinirieniseniamethientaesbntisoniiiacntaaieliai 7,14

New Mexico Enabling Act, 36 Stat. 557 (1910)... 13

Public Law 83-280, 67 Stat. 588 (1953), as

amended, 18 U.S.C. § 1162(b)......................... 7,18

Treaty With the Apaches, 10 Stat. 979 (1852) .... 12

MISCELLANEOUS

PEGE Oe CFR FS D eiccmntecensnniemenaleds 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

STATE OF NEw Mexico and HAROLD F. OLSON, Individually

and as Director, New Mexico Department of Game and Fish,

Petitioners,

MESCALERO APACHE TRIBE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioners State of New Mexico and Harold F. Olson,

individually and as Director of the New Mexico Department of

Game and Fish, respectfully petition for a writ of certiorari to

review the judgment and opinion of the United States Court of

Appeals for the Tenth Circuit entered in this proceeding on

August 13, 1980.

OPINIONS BELOW

The judgment entered in this case by the United States

District Court for the District of New Mexico on August 2,

1978, which appears in the Appendix at 28a, is unreported.

The memorandum opinion of the District Court of August 2,

1978, also unreported, appears at Appendix 30a. The opinion

of the United States Court of Appeals for the Tenth Circuit

appears at Appendix 2a.

JURISDICTION

The judgment of the United States Court of Appeals for

the Tenth Circuit, Appendix at la, was entered on August 13,

1980. The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the Mescalero Apache Tribe has “inherent

authority” over wildlife within the Mescalero Apache Reserva-

tion which preempts the application of State laws to non-

Indians hunting or fishing within the Reservation.

2. Whether the authority of the State of New Mexico to

impose its game and fish laws on non-Indians hunting or fishing

on the Mescalero Apache Reservation has been preempted by

federal legislation or treaty stipulation.

3. Whether the application of State game and fish laws to

non-Indians hunting or fishing on the Mescalero Apache Reser-

vation infringes on the right of the Mescalero Apache Tribe “to

make its own laws and be governed by them” contrary to

Williams v. Lee, 358 U.S. 217 (1959).

TREATY AND STATUTORY

PROVISIONS INVOLVED

Material portions of pertinent treaty and statutory provi-

sions are included in the Appendix at 47a et seq.

STATEMENT OF THE CASE

A. The Factua! Background

In July 1975, the Mescalero Apache Tribe opened the Inn

of the Mountain Gods located on the Mescalero Apache Indian

Reservation in south central New Mexico. The Inn of the

Mountain Gods is a deluxe, tourist resort complex featuring a

luxury hotel, a stocked lake for fishing, boating and water

sports, a golf course, pro shop, tennis facilities, swimming pool,

trap and skeet shooting range, a stables complex, paddle tennis

courts, restaurants, liquor lounges, and convention facilities (R.

Vol. I, p. 120).1 The Inn is operated by the Mescalero Apache

Tribe as part of a tourism program established by the Tribe to

attract non-Indians to the Reservation as well as to the Sierra

Blanca Ski Resort, a tribal commercial enterprise located

adjacent to the Reservation. In ~ nection with operation of

the Inn of the Mountain Gods, ture Mescalero Apache Tribe

also maintains a hunting and fishing business, including “pac-

kage” hunts of big game animals, and a camping and picnic-

king program. “Package” hunts of big game animals include

hunting fees, lodging at the Inn, guide service, and various

other hunter needs (R. Vol. 1, pp. 121-122). The Inn of the

Mountain Gods, as well as the Tribe’s hunting and fishing

business, caters almost exclusively to non-Indian patrons from

across the country. At least 97 percent of the guests at the Inn

of the Mountain Gods, including hunters and anglers, are non-

Indians from off the reservation (R. Vol. I, pp. 121, 122).

Public highways and other State public facilities and services

are used by persons hunting and fishing on the Mescalero

Apache Reservation (R. Vol. I, p. 136).

In 1977 the Mescalero Apache Tribe adopted a general

hunting and fishing ordinance which states it is applicable to all

persons, Indian and non-Indian, who hunt or fish on the

™R. Vol.” refers to a particular volume of the record filed in the

Tenth Circuit.

Reservation. The ordinance requires non-Indians to purchase a

tribal permit, and it establishes seasons and bag limits. The

ordinance also declares that “no state license of any kind shall

be necessary for any person” with respect to hunting or fishing

on the Mescalero Apache Reservation (R. Vol. I, p. 122).2

Both federal and state agencies have assisted the Tribe’s

hunting and fishing business. In 1966 and 1967 the National

Park Service donated 162 elk to the Tribe. These were shipped

into New Mexico pursuant to a permit issued by the New

Mexico Game and Fish Department which had encouraged the

project (R. Vol. I, p. 124). A Bureau of Indian Affairs range

conservationist makes aerial surveys and pellet group transect

studies to estimate deer, elk, antelope and bear populations,

and he recommends seasons and bag limits for these species to

the Tribal Council (R. Vol. I, pp. 122, 123). The U.S. Fish and

Wildlife Service provides technical assistance respecting man-

agement of fish, and the Service stocks reservation streams and

several man-made lakes built with federal funds (R. Vol. I, p.

123).

The New Mexico Department of Game and Fish has in the

past stocked streams on the Reservation and has supplied other

assistance including the training of conservation officers at the

request of the Tribe (R. Vol. I, pp. 123, 124-125). The elk,

deer and bear populations in south central New Mexico range

freely on and off the Mescalero Apache Reservation throughout

the year (R. Vol. I, p. 124). Moreover, the State has

maintained wildlife conservation programs of long standing in

areas surrounding the Reservation (R. Vol. I, pp. 125-128),

and State officers enforced wildlife laws and regulations on the

Reservation against nontribal members until 1969 when the

2 Prior to 1977 the tribe’s hunting brochures stated that all New

Mexico hunting regulations apply on the Reservation (R. Vol. I, p.

125).

Tribe informed the State that its fish and game officers would

no longer be welcome on the Reservation without tribal

permission (R. Vol. I, pp. 130, 131). Thus the assertion by the

Court of Appeals that the State is unable to claim that it or its

lands played any significant role in the creation and preserva-

tion of the reservation wildlife resource is contradicted by the

record.

From at least 1971 through the period of this litigation

virtually all of the big game permits authorized by the Mesca-

lero Apache Tribe have been sold (R. Vol. I, pp. 138-139).

The non-Indian demand for big game and package hunts has

each year exceeded the number of permits available (R. Vol. I,

p. 135). Revenues from the tribal hunting and fishing program

as well as from the operation of the Inn of the Mountain Gods

have increased annually over the last several years (R. Vol. I,

pp. 135-136).

B. Proceedings in the Courts Below

On July 7, 1977, the Mescalero Apache Tribe filed an

action for declaratory and injunctive relief alleging, inter alia,

that enforcement of the hunting and fishing laws of the State of

New Mexico against persons hunting or fishing on the Mesca-

lero Apache Reservation, either once such persons are on the

reservation or after they have departed from the reservation,

infringes on tribal sovereignty, conflicts with the Treaty of July

1, 1852, between the United States and the Apaches, 10 Stat.

979, and with certain other specified federal constitutional and

statutory provisions. The complaint urged the District Court to

declare that jurisdiction to regulate hunting and fishing on the

reservation is vested in the Tribe and the United States to the

complete exclusion of the State of New Mexico.

The District Court determined that the Mescalero Apache

Tribe has an inherent right to control hunting and fishing within

tribal territory which had been neither abrogated nor surren-

dered. The District Court found that this right to control rested

exclusively with the United States and the Mescalero Apache

Tribe because, although Congress could relinquish this author-

ity to the several states, the Court found no federal legislation

conferring upon the State of New Mexico authority to regulate

on the Mescalero Apache Reservation. The District Court also

concluded that the federally approved game and fish ordi-

nances of the Mescalero Apache Tribe and its federally sup-

ported game and fish program on the Reservation constituted

an “integrated scheme that results in the federal preemption of

fish and game law on the Mescalero Apache Reservation.”

Appendix at 45a. The District Court enjoined the State of New

Mexico from enforcing its hunting and fishing laws “against any

person either on the reservation or after they [sic] have left the

reservation for acts done in the reservation.” Appendix at 29a.

The United States Court of Appeals for the Tenth Circuit

affirmed the District Court, holding that the Mescalero Apache

Tribe had “inherent authority” over wildlife within the Reser-

vation which preempted the application of state law to any

person within its tribal territory; that the application of state

game and fish laws to non-Indians hunting or fishing on the

Mescalero Apache Reservation had been preempted by federal

legislation and treaty stipulation; and that application of state

game and fish laws to non-Indians hunting or fishing on the

Mescalero Apache Reservation infringed on tribal self-

government.

REASONS FOR GRANTING THE WRIT

I. The Decision of the Tenth Circuit Presents a Direct

Conflict with Rulings of the Ninth Circuit and Other

Courts On a Recurring Issue of Importance to Many

States.

The court below held that New Mexico conservation laws

relating to taking of wildlife by nontribal members on the

Mescalero Apache Reservation are preempted by federal law

and also unlawfully infringe upon the right of reservation

Indians “to make their own laws and be ruled by them.” The

holding of the Tenth Circuit is in square conflict on both the

federal preemption question and the Williams v. Lee in-

fringement question with the holding of the Ninth Circuit in

United States v. State of Montana, 604 F.2d 1162 (9th Cir.

1979), cert. granted, No. 79-1128. 48 U.S.L.W. 3661 (April

14, 1980).3

State authority to regulate hunting and fishing by nontribal

members on an Indian reservation has been upheld in a

number of cases. White Mountain Apache Tribe v. State of

Arizona, No. Civ. 77-867, (D. Ariz., June 13, 1978), appeal

docketed, No. 78-3427 (9th Cir. Nov. 8, 1978); State of

California v. Quechan Tribe of Indians, 424 F. Supp. 969 (S.D.

Calif. 1977), rev’d on other grounds, 595 F.2d 1153 (9th Cir.

1979); Montana ex rel. Nepstad v. Danielson, 149 Mont. 438,

427 P.2d 689 (1967); Ex Parte Crosby, 38 Nev. 389, 149 P. 989

(1915).4 And, in direct contrast to the ruling of the Tenth

Circuit in the instant case, such federal enactments as the Indian

Reorganization Act, 25 U.S.C. §476, and Public Law 280, 18

U.S.C. §1162(b). and the Federal Trespass Law, 18 U.S.C.

$1165, have been held not to be preemptive of state wildlife

conservation laws insofar as such laws apply to nontribal

3.No cross petition for writ of certiorari was filed by respondents

United States and Crow Tribe in United States v. State of Montana,

supra, and hence the Ninth Circuit ruling that state fish and game

laws apply to nontribal members who obtain permission from the

tribe to hunt and fish on the Crow Reservation is not before this Court

in No. 79-1128.

4 The Solicitor of the Department of the Interior in 1971 issued a

formal opinion advising that nontribal members are subject to state

game laws on an Indian reservation. 78 1.D. 101 (1971). During

1976 the Solicitor’s Opinion was withdrawn without explanation.

members. E.g., White Mountain Apache Tribe v. State of

Arizona, supra.

The virtually identical issue of applicability of state fishing

regulations to nontribal anglers was decided adversely to the

state in Eastern Band of Cherokee Indians v. North Carolina

Wildlife Resources Commission, 588 F. 2d 75 (4th Cir. 1978).

The State of North Carolina sought review in this Court by

certiorari in No. 78-1653 and the views of the Solicitor General

were requested by this Court on June 18, 1979. In his

memorandum in response to the Court’s invitation, the Solicitor

General observed that the question was both important and

recurring and that certiorari should be granted:

In our view, the decision of the Court of Appeals is

correct. Nevertheless, like respondents—who have ac-

quiesced in the grant of certiorari—we believe review by

this Court is warranted. As set forth more fully in our brief

in No. 78-1177, White Mountain Apache Tribe v. Robert

M. Bracker, we submit the permissible limits of state

taxation of on-reservation transactions involving non-

Indians is an important and recurring issue that should be

resolved by this Court. This Court has already set for

argument State of Washington v. Confederated Tribes of

the Colville Indian Reservation, No. 78-630, which presents

one facet of this question.

5 The unreported memorandum opinion of the Distric’ Court in

White Mountain Apache Tribe v. State of Arizona, supra, is set forth

in the Appendix to the petition for writ of certiorari in North Carolina

Wildlife Resources Commission v. Eastern Band of Cherokee Indians,

No. 78-1653.

Memorandum for the United States, 2-3.6 Petitioner submits

that the question is indeed an important question of state-tribal

jurisdiction, that it is a recurring question, and that a square

conflict exists between holdings in the Tenth Circuit and Fourth

Circuit, on the one hand, and the Ninth Circuit and US. district

courts.

Ii. The Tenth Circuit’s Conversion of Limited Tribal Sover-

eignty Into Exclusive Territorial Sovereignty Precludes

the State’s Legitimate Interest In Regulating the Activi-

ties of Non-Indians.

The ratio decidendi of the court below is difficult to isolate,

the opinion constituting a collection of abstract statements from

Indian cases in the Supreme Court. While asserting that the

applicability of state regulation within a reservation depends

upon whether the subject matter has been preempted by federal

law or whether state regulation infringes on tribal self-

government, Appendix at 8a, the decision of the court below

actually proceeds on an entirely different course. Instead of an

analysis based on federal preemption or interference w.th tribal

self-government, the Tenth Circuit by way of alternate holding

declares that its analysis proceeds from the premise of tribal

sovereignty: “The sovereign powers of the tribe in wildlife

management are so pervasive that sovereignty t.ere moves from

a mere backdrop into a leading role on the litigational stage.”

Appendix at 9a. Invoking United States v. Winans, 198 U.S.

371 (1905), for the proposition that an Indian treaty is not a

grant to Indians but “a grant of rights from them,” Appendix at

10a, and also invoking the Declaration of Independence,

Appendix at 12a, the Tenth Circuit holds that the tribe’s

6 Prior to action on the petition by this Court the petitioner

moved to dismiss the petition for writ of certiorari in light of

intervening action by the North Carolina legislature suggesting moot-

ness of the cause. This Court ordered No. 78-1653 dismissed on May

22, 1980.

inherent sovereign authority over wildlife on the reservation is

exclusive of state regulation. Appendix at 10a.

The Tenth Circuit decision badly misinterprets Indian law

as well as the federal system. Application of the two conditions,

federal preemption and tribal self-government, to the assertion

of state regulatory authority on a reservation accomodates all

interests. The power of Congress here is plenary and the fact is

that an Indian tribe is sovereign to the extent that, and solely in

the manner that, Congress permits it to be sovereign. Kennerly

v. District Court of Montana, 400 U.S. 423 (1971). Accord-

ingly, analysis properly proceeds by asking whether Congress

has legislatively preempted state power. If no federal preemp-

tion is manifested by specific congressional enactment the

inquiry then turns to the question of actual infringement of

tribal self-government. Thus state law will be held in-

applicable, even if not specifically preempted by Congress, if it

infringes internal tribal affairs because traditional notions of

Indian self-government “are so deeply engrained in our

jurisprudence.” White Mountain Apache Tribe v. Bracker, 48

U.S.L.W. 4897, 4899( 1980). A finding of Indian “sovereigniy”

is thus the conclusion which results from applying the dual

analysis. But in the Tenth Circuit’s decision Indian sovereignty

is the starting point, not solely the conclusion, and that is a

fundamental misconception having broad potential to under-

mine historic state regulation of non-Indian activity on a

reservation.

New Mexico plainly has a legitimate interest in preserving

and regulating the exploitation by non-Indians of the wildlife

resources of the state which range on and off the Reservation.

The holding of the court below, starting as it does from the

premise of territorial sovereignty in the tribe, provides no

analytical framework in which to weigh the legitimate interests

of the state.

The Mescalero Apache Reservation is one of twenty-six

Indian reservations and pueblos located within the State of

New Mexico. These twenty-six Indian enclaves comprise

7,348,563 acres or 11,482 square miles. Each of these other

Indian enclaves in New Mexico could become a haven for non-

Indian activity free of State law on the model of the Mescalero

Apache enterprise. Efficient, effectual statewide game manage-

ment would be impossible under these circumstances.

On a larger scale, if the decision below stands, Indian

tribes all over the country may adopt the Mescalero model

featuring tribal operation of a commercial hunting and fishing

enterprise in an attempt to free their virtually exclusive non-

Indian patronage from the requirements of state law and to

avail themselves of the accompanying competitive advantages.

Indeed, this type of enterprise is already spreading. See

Confederated Tribes of Colville Indian Reservation v. State of

Washington, 591 F.2d 89 (9th Cir. 1979); Eastern Band of

Cherokee Indians v. North Carolina Wildlife Resources Com-

mission, 588 F.2d 75 (4th Cir. 1978), petition for writ of

certiorari voluntarily dismissed, 48 U.S.L.W. 3786 (May 22,

1980); White Mountain Apache Tribe v. State of Arizona, No.

Civ. 77-867 (D. Ariz. June 13, 1978), appeal docketed, No. 78-

3427 (9th Cir. November 8, 1978). Moreover, the Mescalero

model is now being used with respect to other Indian enter-

prises such as the operation of liquor facilities in an effort to

immunize non-Indian patrons from state law for the com-

mercial advantage of the Indian tribe. See, for example, United

States v. State of New Mexico, 590 F. 2d 323 (10th Cir. 1978).

Il. The Tenth Circuit's “Sources of Preemption,” Broadly

Based Upon Misinterpretation of Treaty and Statute,

Would Oust State Power Over Many Non-Indian Activi-

ties on a Reservation.

The Court of Appeals determined that application of state

law to non-Indians hunting or fishing on the Mescalero Apache

Reservation has been preempted by (1) the Treaty of July 1,

1852, between the United States and the Apaches, 10 Stat. 979:

(2) the Enabling Act for New Mexico, 36 Stat. 557 ( 1910); (3)

the Indian Reorganization Act of 1934, 25 U.S.C. § 476; (4)

the tribal constitution and ordinances enacted pursuant to the

Indian Reorganization Act; (5) federal developmental assis-

tance; and (6) Public Law 280, 67 Stat. 590 (1953). Appendix

at 14a-18a.

a. Treaty of July 1, 1852. The court below found the

Treaty of July 1,. 1852, to be an “expression of federal

dominance on the reservation” which completely preempted

the application of state law even to non-Indians on the Reserva-

tion. Pointing to language in Articles | and 9 of the Treaty, the

court stated:

In Article | of that document, the Tribe submits itself

“exclusively [to] the laws, jurisdiction, and government of

the United States of America.” Treaty with the Apaches,

July 1, 1852, 10 Stat. 979 (1852) (emphasis added).

Further, the Treaty provides that the United States shall

“designate, settle, and adjust [the Tribe’s] territorial

boundaries, and pass and execute . . . such laws as may

be deemed conducive to the prosperity and happiness of

{the Mescalero Apaches].” Jd., art. 9, 10 Stat. 980.

Appendix at |4a-15a. The full text of these provisions, Appen-

dix at 47a, does not sustain the interpretation of the court

below. Read in full, these treaty provisions mean only that the

tribe and its members recognized the sovereignty of the United

States against which they had previously waged war, and that

the United States would, in turn, provide a place for the tribe to

live. The meaning and significance accorded these treaty

stipulations by the court below is not only at variance with the

full text, it is also inconsistent with another decision of the

Tenth Circuit, Mescalero Apache Tribe v. O’Cheskey, 625 F.2d

967 (10th Cir. 1980), reh. denied, August 25, 1980, and with

the Ninth Circuit decision in United States v. Montana, supra.

In Mescalero Apache Tribe v. O’Cheskey, supra, the Treaty of

July 1, 1852, was not deemed to preempt application of New

Mexico’s gross receipts tax to non-Indians doing business with

the tribe on the reservation. The court in O’Cheskey stated:

[The Treaty] was an agreement entered into with some

Apaches, including some Mescaleros, and was ratified by

Congress.... It was a treaty of ‘peace and friendship.’ As

this was all it purported to be, it established no rights

generally for either party nor any rights in land. See

Choate v. Trapp, 224 U.S. 665 .... The Mescaleros were

then under the complete sovereignty of the United States.

The Treaty thus does not appear to be of any significance

as to our problem.

625 F.2d at 971. The court below failed to explain why the

‘federal dominance” expressed in the Treaty preempts one set

of state laws but does not preempt another set. In United States

v. Montana, supra, the Ninth Circuit dealt with the Treaty of

1858 with the Crow Tribe, which contains provisions similar to

those involved here, but did not deem that treaty to preempt

application of state laws to non-Indians hunting and fishing on

the Crow Reservation.

b. The New Mexico Enabling Act. The court below

concluded that the Enabling Act for New Mexico, 36 Stat. 557

(1910), which places Indian lands in New Mexico “under the

absolute jurisdiction and control of the Congress of the United

States,” taken in conjunction with the “exclusivity” language of

the Treaty of July 1, 1852, preempts state law: “In the area of

resource management, the treaty language in this case suggests

the ‘absolute’ jurisdiction is indeed ‘exclusive’ jurisdiction.”

Appendix at ISa.

Aside from the fact that neither the Treaty of July 1, 1852,

nor the Enabling Act contains any mention of hunting and

fishing by non-Indians, or for that matter by tribal members

themselves, the decision of the court below is contrary to this

Court’s decision in Organized Village of Kake v. Egan, 369 U.S.

60 (1962), and the Tenth Circuit’s own decisions in Mescalero

Apache Tribe v. O’Cheskey, supra, and Jicarilla Apache Tribe v.

United States, 601 F.2d 1116 (10th Cir. 1979),

In Organized Village of Kake, this Court was called upon to

interpret section 4 of the Alaska Statehood Act in which the

state disclaimed all right to and the United States retained

“absolute jurisdiction and control” over, inter alia, lands and

property held by Indians. After an extensive review of case law

and legislative history, this Court concluded that:

[T]he words “absolute jurisdiction and control” are not

intended to oust the State completely from regulation of

Indian “property” (including fishing rights). “Absolute” in

Section 4 carries the gloss of its predecessor statutes

meaning undiminished not exclusive.

369 U.S. at 71. And, in Jicarilla Apache Tribe v. United States,

supra, the Tenth Circuit actually rejected the notion that the

New Mexico Enabling Act established Indian reservations as

exclusive federal jurisdictional enclaves. In Jicarilla Apache,

the Tenth Circuit stated:

By 1910, the date of the enactment of New Mexico’s

Enabling Act, both the Congress and the United States

Supreme Court had established a procedure whereby

Indian Reservations might be created as exclusive federal

enclaves within states and territories similar to military

reservations created under the Arsenals and Dockyards

Clause (U.S. Const. Art. I, § 8, Cl. 17). This procedure

was followed exclusively only with respect to the Kansas

Indians. A different procedure was followed with respect

to the grant of New Mexico’s statehood. In any event,

today there is no exclusive federal jurisdictional Indian

Reservation in the United States.

601 F.2d at 1129. The Tenth Circuit’s decision in the instant

case departs from previous decisions of both this Court and of

the Tenth Circuit itself.

¢. Indian Reorganization Act of 1934. The Tenth Circuit

also inferred preemption of state authority over non-Indian

hunting or fishing from the language of the Indian Reorganiza-

tion Act of 1934 which “reconfirms” in Indian tribes organizing

under the Act “all powers vested in any Indian tribe... by

existing law.” The court below reasoned that tribal power over

reservation hunting and fishing was “unquestionably vested”

prior to 1934, and thus its “reconfirmation” in the Indian

Reorganization Act gave the Act itself preemptive effect. The

court further observed that tribal ordinances regarding hunting

and fishing on the reservation may themselves serve to preempt

state law on the reservation.

The lower court’s conclusions in this regard are contrary to “|

this Court’s decision in Oliphant v. Suquamish Tribe, 435 U.S.

191 (1978); United States v. Wheeler, 435 U.S. 313 ( 1978); the

Ninth Circuit’s decision in Fort Mojave Tribe v. County of San

Bernadino, 543 F.2d 1253 (9th Cir. 1976) cert. denied, 430 U.S.

983 (1977), the decision of the U.S. District Court for the

District of Arizona in White Mountain Apache Tribe v. State of

Arizona, et al., supra, and the decision of the U.S. District Court

for the Southern District of California in State of California v.

Quechan Tribe of Indians, supra.

With respect to the effect of the Indian Reorganization Act

of 1934, this Court in Oliphant v. Suquamish Tribe has said:

Respondents do contend that Congress has “confirmed”

the power of Indian tribes to try and punish non-Indians

through the Indian Reorganization Act of 1934, 25 U.S.C.

§ 476, and the Indian Civil Rights Act of 1968, 25 U.S.C.

§ 1302. Neither Act, however, addresses, let alone “con-

firms”, tribal criminal jurisdiction over non-Indians. The

Indian Reorganization Act merely gives each Indian tribe

the right “to organize for its common welfare” and to

“adopt an appropriate constitution and by-laws.” With

certain specific additions not relevant here, the tribal’

council is to have such powers as are vested “by existing

law.”

435 USS. at 196, n.6. Thus, whatever powers the Mescalero

Apache Tribe may have “by existing law” with respect to

regulating hunting and fishing on the Reservation,’ this Court

has determined that the Indian Reorganization Act neither

confirms such powers nor do such powers somehow infuse the

Act with preemptive effect with respect to the applicability of

state law to non-Indians on Indian land.

d. Federal Developmental Assistance. The court below also

found preemption of state law in the federal assistance pro-

vided to the Mescalero Apache Tribe by the Department of the

Interior in the development of a tribal hunting and fishing

business enterprise. This conclusion on the part of the court

below likewise conflicts with decisions of this Court and with at

least one other decision of the Tenth Circuit itself.

The federal assistance which the court below considered to

be preemptive of state law was a donation of elk, fish stocking

of reservation lakes, technical assistance on fish management,

and aerial surveys and animal pellet studies by a Bureau of

Indian Affairs range conservationist to assess wildlife popu-

lations.

The finding of the Tenth Circuit that this degree of federal

assistance to the tribe preempts the application of state law to

non-Indian hunters and anglers on the Reservation is inconsist-

ent with a standard for preemption recently expressed by this

Court in White Mountain Apache Tribe v. Bracker, 48 U.S.L.W.

4897 (1980). In this case, this Court declared that congression-

al enactments and comprehensive implementing regulations

which establish a pervasive federal regulatory scheme (as

opposed to merely federal material and technical assistance )

must be involved in order to oust state law from application on

7 Apart from its power as a landowner to exclude non-Indians

from the Reservation or to place conditions on their entry onto the

Reservation, an Indian Tribe may enforce police regulations only

against its own members. See United States v. Wheeler, supra; State

of California v. Quechan Tribe of Indians, supra.

an Indian reservation. Indeed, as explained in White Mountain

Apache Tribe v. Bracker, supra:

Our decision today is based on the preemptive effect of the

comprehensive federal regulatory scheme, which, like that

in Warren Trading Post Company v. Arizona Tax Commis-

sion, supra, leaves no room for the additional burdens

sought to be imposed by state laws.

48 U.S.L.W. at 4901, n. 15.

In Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973),

federal involvement in an Indian commercial enterprise, similar

to the degree of federal activity involved in this case, failed to

preempt the application of state law to the tribal activity. In

that case the Bureau of Indian Affairs had conducted a

feasibility study, equipment and construction money had been

provided by a loan from the federal government, and the

necessary land was supplied by the United States Forest Service

on a long-term lease to the tribe. The degree of federal activity

in the instant case falls below even that involved in the Jones

case.

Moreover, the Tenth Circuit itself acknowledged, in

Mescalero Apache Tribe vy. O’Cheskey, supra, that federal

participation and interest in a particular Indian enterprise does

not alone preempt state law from application to non-Indians

involved in the venture. In that case, the Tenth Circuit stated:

Finally, the extent of the federal government’s role in this

area, aS a measure of federal interest in Indian affairs, is

Significant. Federal participation and interest in this

particular business venture is extensive, but that alone is

not enough to immunize these contractors from state

taxation.

625 F.2d at 974 (concurring opinion). The decision of the

court below that the measure of federal assistance involved in

this case preempts state law cannot be squared with decisions of

this Court or with other decisions of the Tenth Circuit itself.

e. Public Law 280. Finally, the Court of Appeals deter-

mined that federal preemption resulted from “the negative

inferences from Public Law 280.” Appendix at 14a. The court

reasoned that because Public Law 280, 18 U.S.C. § 1162(b),8

protects “traditional” Indian hunting and fishing rights from

being hindered, even in those states which accept Public Law

280 jurisdiction, a non-Public Law 280 state like New Mexico

may not, a fortiori, hinder such rights.

This holding of the court below stands in conflict with the

Ninth Circuit decision in Fort Mojave Tribe v. County of San

Bernadino, supra, where the court interpreted Public Law 280

to preserve rights and immunities granted to an Indian tribe but

not to extend such rights or immunities to non-Indians under-

taking activity on a reservation. Accordingly, Public Law 280

did not prevent the imposition of a state POssessory interest tax

on a non-Indian lessee of reservation land. If Public Law 280

does not directly preempt state law from application to non-

Indians on Indian land, it surely does not do so by “negative

inference.” The “grandfather” role of the proviso to Public Law

280 is well summarized by the District Court in White Moun-

tain Apache Tribe v. State of Arizona:

After all, Public Law 280 only grandfathers rights held by

the Indian tribe under “Federal treaty, agreement, or

statute.” The executive order establishing the Fort Apache

Reservation does not authorize tribal preemption of state

8 The Court of Appeals had reference to the following proviso in

Public Law 280:

Nothing in this section... shall deprive any Indian or Indian

tribe... of any right, privilege, or immunity afforded under

federal treaty, agreement, or statute with respect to hunting,

trapping, or fishing, or the control, licensing or regulation thereof.

%On the same reasoning, state fish and game laws were held

applicable to non-Indians on an Indian reservation in State of

California v. Quechan Tribe of Indians, 424 F. Supp. 969, rev'd on

other grounds, 595 F.2d 1153 (9th Cir. 1979),

game and fish law. Neither federal trespass law nor the

Indian Reorganization Act delegate legislative authority to

the White Mountain Tribe. Therefore, Public Law 280, by

itself, cannot be a congressional delegation of regulatory

authority. 10

There is thus wide variation between the circuits not only

as to the preemptive force of particular enactments by Congress

and treaty provisions but also as to the gauge to be used in the

measurement. The divergent results in the lower courts on

these important jurisdictional issues cannot be brought to rest

by ambiguous formulas; neither do the problems created

improve with age. This Court should provide guidance.

IV. The Ruling Below that Application of State Game Laws

to Non-Indians Would Infringe Tribal Self-Government

Conflicts With Decisions of This and Other Federal

Courts and Would Significantly Expand the Exclusionary

Effect of Williams yv. Lee.

In an alternate holding, the court below concluded that

application of New Mexico game and fish laws to non-Indians

on the Mescalero Apache Reservation would infringe on the

right of the reservation Indians to make their own laws and be

ruled by them. This conclusion was based on three perceived

outcomes of such enforcement. Foremost is the court’s per-

ception that state enforcement would financially impair the

Tribe’s hunting and fishing business enterprise. Second, the

Court of Appeals believed that state enforcement would inter-

fere with the tribal regulatory program over a “value generated

on the reservation.” Finally, the court observed that enforce-

ment of state regulations as to nontribal hunters and anglers

would deny the tribe an opportunity to develop its own system

of resource management. Appendix at 19a-21a.

0 Appendix, p. A-52, No. 78-1653, Petition for Writ of Certiorari

in North Carolina Wildlife Resources Commission v. Eastern Band of

Cherokee Indians.

The factual foundation for the foregoing assertions is, of

course, disputed by Petitioner. That aside, however, the Tenth

Circuit’s conclusion of infringement goes well beyond the

notion of preserving tribal autonomy over internal affairs of the

Indians. On the question of financial impairment of the Tribe’s

commercial activity, for example, the decision below is at odds

with the decisions of this Court in State of Washington v.

Confederated Tribes of the Colville Indian Reservation, 48

U.S.L.W. 4668( 1980); Mescalero Apache Tribe v. Jones, supra;

Oklahoma Tax Commission v. Texas Company, 336 U.S. 342

(1949); Thomas v. Gay, 169 U.S. 264 (1898); and Fort Mojave

Tribe v. County of San Bernadino, supra; and with the decision

of the Tenth Circuit itself in Mescalero Apache Tribe vy.

O’Cheskey, supra. Contrary to the Tenth Circuit’s view, these

cases hold that imposition of a non-discriminatory tax or

regulatory system on non-Indians doing business with an Indian

tribe is permissible even if it results in an economic burden on

the tribe. Moe v. Confederated Salish & Kootenai Tribes, 425

U.S. 463 (1976).

With respect to the Tenth Circuit’s holding that state

enforcement would interfere with the tribal regulatory program

and would deny the tribe an opportunity to develop a system of

resource management, the court has reached a result contrary to

that of the Ninth Circuit in United States v. State of Montana,

supra, and Fort Mojave Tribe v. County of San Bernadino,

supra, as well as the decisions reached by courts in State of

California v. Quechan Tribe of Indians and White Mountain

Apache Tribe v. State of Arizona, supra.

Those cases recognize that non-discriminatory, state

enforcement against only non-Indians on Indian land does not

deprive a tribe of its right to impose its own regulatory

measures or to adopt its own conservation practices. With these

options remaining open to the tribe, tribal self-government is

not infringed. The Tenth Circuit’s conclusion to the contrary

stands alone.

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be granted.

Respectfully submitted,

JEFF BINGAMAN

Attorney General

of the State of Nev Mexico

THOMAS L. DUNIGAN

Deputy Attorney General

P. O. Drawer 1508

Santa Fe, New Mexico 8750]

(505) 982-6993

PauL A. LENZINI

CHAPMAN, Durr, AND PAUL

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Attorneys for Petitioners

Dated: November 12, 1980

APPENDIX

United States Court of Appeals

FoR THE TENTH CIRCUIT

JULY TERM—August 13, 1980

Before Honorable William E. Doyle, Honorable Jean S.

Breitenstein, and Honorable Monroe G. McKay, Circuit

Judges

MESCALERO APACHE TRIBE,

Plaintiff- Appellee,

VS.

STATE OF NEW MEXICco and WIL-

LIAM S. HUEY, Individually and as

Director of New Mexico Depart-

ment of Game and Fish, or his JUDGMENT

Successors in Office, No. 78-1790

Defendants- Appellants, (D.C. No. 77-395-M)

INTERNATIONAL ASSOCIATION OF

FISH AND WILDLIFE AGENCIES,

UNITED STATES OF AMERICA, JICA-

RILLA APACHE TRIBE, STATE OF

UTAH,

Amici Curiae.

This cause came on to be heard on the record on appeal

from the United States District Court for the

District of New Mexico, and

was argued by counsel.

Upon consideration whereof, it is ordered that the

judgment of that court is affirmed. Judge Breitenstein

concurs.

PUBLISH

United States Court of Appeals

TENTH CIRCUIT

MESCALERO APACHE TRIBE,

Plaintiff- Appellee,

Vv. No. 78-1790

STATE OF NEW MEXICco and

WILLIAM S. HUEY, Individually

and as Director of New Mexico

Department of Game and Fish,

or his Successors in Office,

Defendants- Appellants.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF NEW MEXICO

(D.C. Civil Case No. 77-395-M)

Jeff Bingaman, Attorney General, and Thomas L. Duni-

gan, Deputy Attorney General (Thomas Patrick Whelan,

Jr., Assistant Attorney General, with them on the briefs),

Santa Fe, New Mexico, for Defendants- Appellants.

George E. Fettinger (Kim Jerome Gottschalk with him on

the brief), Fettinger & Bloom, Alamogordo, New Mexico,

for Plaintiff- Appellee.

Steven E. Carroll, Attorney (James W. Moorman, Assis-

tant Attorney General; Robert L. Klarquist and Edward

J. Shawaker, Attorneys, on the brief), Department of

Justice, Washington, D.C., for the United States as amicus

curiae.

Paul A. Lenzini and Susan A. Goltz, Attorneys, Chapman,

Duff and Paul, Washington, D.C., filed an amicus curiae

brief for the International Association of Fish and Wild-

life Agencies.

Daniel H. Israel, Native American Rights Fund, Boulder,

Colorado; Robert Nordhaus and Adelia W. Kearny,

Nordhaus, Moses & Dunn, Albuquerque, New Mexico, filed

an amicus curiae brief for the Jicarilla Apache Tribe.

Robert B. Hansen, Utah Attorney General; Richard L.

Dewsnup, Assistant Attorney General; and Dallin W.

Jensen, Assistant Attorney General, filed an amicus curiae

brief for the state of Utah.

Before DOYLE, BREITENSTEIN and McKAY, Circuit

Judges

McKAY, Circuit Judge.

This case involves a challenge to the State of New

Mexico’s attempt to regulate the management and

harvesting of wildlife resources within the boundaries of

the Mescalero Apache reservation. The Tribe carried its

challenge to the district court where it secured a judgment

declaring that the State may not apply its hunting and

fishing laws to any person, Indian or non-Indian, within

the boundaries of the tribal reservation. The court also

enjoined the State from enforcing its game laws “against

any person either on the Reservation or after they [ sic]

have left the Reservation for acts done on the Reserva-

tion.” Record vol. 1, at 221. The State concedes its lack of

jurisdiction over tribal members on the reservation, but

appeals the district court’s resolution as to non-members

of the Tribe.'

'For most purposes, the important distinction is between

tribal members and non-members, not between Indians and

non-Indians. Members of other tribes generally visit the

Mescalero reservation on the same footing as non-Indians. See

Washington v. Confederated Tribes of the Colville Indian

Reservation, 48 U.S.L.W. 4668, 4675 (1980).

In 1977 the Tribe, as part of “an extensive tourism

program designed to bring income and employment to the

Reservation,” Record, vol. 1, at 205, adopted various

hunting and fishing ordinances to improve management

of reservation wildlife resources. These ordinances were

adopted pursuant to the tribal constitution and were duly

approved by the Secretary of the Interior. Some of the

ordinances are clearly inconsistent with state laws.’ For

example, the Tribe specifically does not require that a

hunter on its reservation purchase a state license and, in

contrast to state law, the Tribe permits elk and antelope

hunters to purchase permits in consecutive years. In

addition, tribal hunting seasons do not all correspond with

those of the State, and bag limits differ. By obeying the

more restrictive of the regulations, a non-member hunter

on the reservation could conform his behavior to the

dictates of both Tribe and State. His doing so, however,

would render much of the tribal regulatory scheme a

nullity.

The revenue derived directly and indirectly‘ from

visiting sportsmen comprises a significant portion of the

tribal budget, but reservation hunting and fishing by

non-members is but a minuscule part of the overall state

*The parties stipulated that “[{t]he purpose of the tourism

program is to provide income for the Mescalero Apache Tribe

which may be used for its governmental purposes and economic

development.” Record, vol. 1, at 121-22.

* The Tribe may be seeking to create jurisdictional disputes.

However, no negative inference should be attached to such a

posture. In fact, a clear intent to preempt state jurisdiction is

an element in the Tribe’s favor. See Confederated Tribes of the

Colville Indian Reservation, 591 F.2d 89, 91 (9th Cir. 1979).

‘The Tribe has erected a resort complex where many

sportsmen stay while on the reservation. Because of the

recreation facilities at the resort, many nonhunters accompany

the sportsmen. In recent years direct tribal income from

hunting and fishing activities has exceeded $250,000 per year.

The indirect revenues increase that total. Record, vol. 1, at 135.

total.’ Although the State argues that wildlife manage-

ment efficiency requires its jurisdiction over reservation

activities, no claim is made that any species is endangered.

Cf. Puyallup Tribe, Inc. v. Department of Game, 483 U.S.

165, 176-77 (1977). In fact, the State agrees that tribal

management of reservation wildlife resources has been

exemplary, and in conformance with accepted wildlife

management procedures. Record, vol. 1, at 134. The Tribe

maintains a large, well-trained enforcement staff and

receives support from the Bureau of Indian Affairs.

In the factual situation presented by this case, the

State is unable to claim that either it or its lands played

any significant role in the creation and preservation of the

reservation wildlife resources. Instead, much of the reser-

vation wildlife is effectively a creation of the Tribe and the

federal government. For example, the antelope population

on the reservation is non-migratory, and few animals

ever cross the boundaries. In recent years, the herd’s

protection has been entirely in tribal hands. Furthermore,

the Tribe has taken affirmative steps to build an elk herd.

Prior to 1966, only 13 elk grazed in the general area of the

reservation. In 1966-67, the National Park Service do-

nated 162 elk. Through considerable range development,

the Tribe removed cattle from direct competition with the

elk for grazing land. The elk herd has grown to 1200,

many of which wander off the reservation during part of

the year. The migratory elk thus provide significant hunt-

ing opportunities for non-members outside the reserva-

tion, and the Tribe, despite its fundamental role in herd

development, makes no attempt to limit that hunting.

* For example, in a recent year the Tribe sold 50 elk licenses,

while the state sold 14,000. Ten tribal antelope licenses were

available, compared to 3500 for the state. Tribal deer licenses

a the taking of 500 deer; the State issued 100,000

icenses.

The reservation has no natural lakes. Several man-

made lakes have been constructed with federal funds and

are stocked from a national fish hatchery on the reserva-

tion. Federal officials from the hatchery also provide the

Tribe with technical assistance. The State has never stock -

ed reservation lakes and no longer stocks any reservation

streams. The entire tribal fishing program now exists

independent of the State.

I. Justiciability

Before proceeding to the merits, we must dispose of

several preliminary matters raised by the State. The State

challenges, as it unsuccessfully did below, the Tribe’s right

to bring this suit. The State asserts that the Tribe has no

standing and that the suit is otherwise not justiciable.

On the standing issue, the State argues that “(t]he

Tribe is seeking to enjoin the enforcement of State penal

statutes which do not apply to it and which do not

threaten it or its members in any real, direct and imme-

diate sense.” Brief for Appellant at 20. In the State’s view,

a challenge to the state regulations may be prosecuted

only by an aggrieved non-member sportsman. Since the

Tribe has sold nearly all of its available hunting and

fishing permits,’ the Tribe has allegedly suffered no reve-

nue losses and no other “injury in fact” by the regulations

the State would impose on non-member sportsmen.

The State’s understanding of standing requirements

is overly narrow. For purposes of standing, federal courts

‘In the first year that tribal antelope licenses were avail-

able, only six of ten were sold. The Tribe has sold all other

available licenses, however, and we may safely assume that the

antelope license figures reflect a temporary aberration.

may certainly consider the principles of elementary eco-

nomics. The State’s imposition of higher costs on individ-

ual sportmen clearly limits the Tribe’s ability to raise the

prices of its own licenses. Cf. Agua Caliente Band of

Mission Indians v. County of Riverside, 442 F.2d 1184, 1186

(9th Cir. 1971). We have no reason to assume that the

demand curve for reservation hunting and fishing is so

inelastic that the Tribe could charge and receive any

imaginable price for its licenses. Even though all tribal

licenses are now sold, and applications for licenses exceed

the number available, that fact merely reflects the Tribe’s

conservative adjustment to market forces in devising its

own fee structure. Similarly, other conflicts between the

tribal and state regulatory structures—e.g., variations in

hunting seasons—necessarily deter some non-member

hunters from entering the reservation at some times.

These conflicts affect the Tribe’s own regulatory scheme.

They also influence the prices the Tribe may charge and

impinge on the Tribe’s revenue-raising powers. These

effects are not merely speculative, but are the straight-

forward and immediate results of economic forces. Cf.

United States v. Students Challenging Regulatory Agency

Procedures, 412 U.S. 669, 683-90 (1973).

Beyond economics, the Tribe has another legitimate

basis for standing. When one sovereign entity is alleged to

have usurped the authority lawfully belonging to another,

the injured sovereign must have standing to challenge the

usurpation. Other circuits have routinely found standing,

without discussion, when Indian tribes have sought judg-

ments that states were unlawfully interfering with tribal

regulation of hunting and fishing. See, e.g., Confederated

Tribes of the Colville Indian Reservation v. Washington, 591

F.2d 89 (9th Cir. 1979); Eastern Band of Cherokee Indians

v. North Carolina Wildlife Resources Commission, 588 F.2d

75 (4th Cir. 1978).’

No other barrier to justiciability is present. The im-

pact of the state regulation upon the Tribe is “sufficiently

direct and immediate as to render the issue appropriate

for judicial review at this stage.” Abbott Laboratories v.

Gardner, 387 U.S. 186, 152 (1967). The limits of state

jurisdiction on the reservation is an issue now as ripe for

resolution as it will ever be. The State has made clear that

prosecution of non-member violators of state game laws,

with the attendant effects on tribal regulation and

revenue-raising, is intended and probable. Record, vol. 1,

at 204 Cf. Poe v. Ullman, 367 U.S. 497, 501-2 (1961).

Finally, all indispensable parties are named in the

suit. As the district court noted, ‘A determination that

New Mexico game laws are not applicable to non-Indian

activity within the Mescalero Apache Reservation cannot

injuriously affect the interests of the United States... .”

Record, vol. 1, at 204. In addition, “no act would be

required of the Secretary [of the Interior] regardless of

the outcome of the suit.” Jd. at 205.

II. Federal Preemption

Any attempt by a state to exercise regulatory powers

within the confines of a federally recognized, ‘semi-

independent” Indian reservation is precluded if the sub-

ject matter has been preempted by federal law or if the

‘Since standing is in part a constitutional concept, a

federal court has an obligation to consider the issue even if the

parties do not raise it. The lack of discussion in these cases

therefore cannot reflect only party failure to press the standing

issue.

state regulations infringe on the tribe’s rights of self-

government. White Mountain Apache Tribe v. Bracker, 48

U.S.L.W. 4897, 4899 (1980). Accordingly, in this

jurisdictional dispute between a state government and an

Indian tribe, we must first determine whether the appli-

cable treaty and federal statutes, read against the

“backdrop” of Indian sovereignty, preempt exercises of

state power. See McClanahan v. Arizona State Tax Com-

mission, 411 U.S. 164, 172 (1973); Mescalero Apache Tribe

v. Jones, 411 U.S. 145, 148 (1973); Warren Trading Post Co.

v. Arizona Tax Commission, 380 U.S. 685, 690-91 (1965).

Under a standard of construction followed from the time

of the Marshall Court, we must construe the applicable

treaty and statutes liberally in order to further Indian

interests. See, e.g., Bryan v. Itasca County, 426 U.S. 373, 392

(1976); McClanahan v. Arizona State Tax Commission, 411

U.S. at 174; Squire v. Copoeman, 351 U.S. 1, 6-7 (1956);

Carpenter v. Shaw, 280 U.S. 363, 366-67 (1930); Worcester

v. Georgia, 31 U.S. (6 Pet.) 515, 582 (1832).*

The sovereign powers of the Tribe in wildlife manage-

ment are so pervasive that sovereignty here moves from a

mere backdrop into a leading role on the litigational

stage. The historical relationship between Indian tribes,

their lands, and the wild game thereon has of necessity

been one of great interdependence. Access to and control

of wildlife was “not much less necessary to the existence of

the Indians than the atmosphere they breathed.” United

States v. Winans, 198 U.S. 371, 381 (1905). After a careful,

thoughtful analysis, the district court properly deter-

mined that, before the signing of the Treaty with the

Apaches, July 1, 1852, 10 Stat. 979 (1852), the Tribe “had

‘The applicable treaty itself mandates “liberal construc-

tion... to the end that... the government of the United States

shall so legislate and act as to secure the permanent prosperity

and happiness of said Indians.” Treaty with the Apaches, July 1,

1852, art. 11, 10 Stat. 980 (1852).

10a

inherent and complete authority to control the fish and

game found within the confines of the tribal territory.”

Record, vol. 1, at 208. Since the treaty is “not a grant of

rights to the Indians, but a grant of rights from them—a

reservation of those not granted,” Jd. (quoting United

States v. Winans, 198 U.S. at 381), the Tribe retains its

authority even though the treaty itself did not fix the

boundaries of the tribal reservation.’ Cf. Antoine v.

Washington, 420 U.S. 194 (1975). Abrogation of any rights

protected by treaty, particularly fundamental hunting

and fishing privileges, must be explicit to be effective, see

Menominee Tribe of Indians v. United States, 391 U.S. 404,

413 (1968), and no congressional enactment here meets

that standard. See United States v. Wheeler, 435 U.S. 3138,

323 (1978).

The Tribe’s inherent authority stems largely from the

traditional reliance on wild game for basic survival needs.

See F. Cohen, Handbook of Federal Indian Law 286 (1942).

However, the Tribe’s historical use of only some species

within its territory does not mean that the game control

powers reserved by treaty are less than all-encompassing.

It is quite irrelevant whether the Mescalero at one time

were primarily hunters, fishermen or gatherers. At the

treaty’s signing, the United States must certainly have

understood that the Tribe could alter its use of wildlife as

conditions changed. For example, “[it is] inconceivable

that the United States intended to withhold from the

Indians the right to sustain themselves from any source of

food which might be available on their reservation.”

United States v. Finch, 548 F.2d 822, 832 (9th Cir. 1976),

vacated on other grounds, 433 U.S. 676 (1977).

The Tribe’s sovereign powers are not, of course, limit-

ed to control of wildlife. The Tribe’s historical powers

*The treaty mandated creation of a new tribal territory,

but the actual boundaries of the reservation were set by a series

of executive orders from 1873 until 1883.

lla

extend to the territory itself. The State acknowledges that

the Tribe has, at a minimum, the power of any landowner

to exclude non-official persons from the reservation.” In

the State’s view, the Tribe may altogether forbid per-

mission to hunt and fish or may condition the grant of

permission upon compliance with state laws, but the Tribe

may not exempt a non-member hunter from the appli-

cation of state laws. The power of a landowner, however,

provides only one source—and a secondary one—of tribal

authority. See Powers of Indian Tribes, 55 Interior Dec. 14,

48-50 (1934). The Supreme Court has repeatedly stressed

“that Indian tribes are unique aggregations possessing

attributes of sovereignty over both their members and

their territory; they are ‘a separate people’ possessing ‘the

power of regulating their internal and social relations.’ ”

United States v. Mazurie, 419 U.S. 544, 557 (1975) (empha-

sis added) (citations omitted) (quoting United States v.

Kagama, 118 U.S. 875, 381-82 (1886)). See Merrion v.

Jicarilla Apache Tribe, 617 F.2d 587, 541-48 (10th Cir.

1980); United States v. New Mexico, 590 F.2d 328, 327-28

(10th Cir. 1978) (“Indian nations [are] distinct political

communities, having territorial boundaries in which their

authority is exclusive”). In its most recent statement, the

Court “emphasized that there is a significant geographical

component to tribal sovereignty, a component which re-

mains highly relevant to the preemption inquiry;... it

In 1969 the Tribe informed the State that its game and

fish officers would be welcome only if they obtained tribal

permission to enter the reservation. The State has honored the

Tribe’s request, but it does not concede the Tribe’s power to

exclude officials. Brief for Appellants at 9-10. Because of our

resolution of the case, we do not reach the issue of the State’s

enforcement powers on the reservation. The Supreme Court also

has not spoken on this question. See Washington v. Con-

federated Tribes of the Colville Indian Reservation, 48 U.S.L.W.

4668, 4675 (1980); Moe v. Confederated Salish & Kootenai

Tribes, 425 U.S. 468, 468 n.6 (1976).

12a

remains an important factor to weigh in determining

whether state authority has exceeded the permissible

limits.” White Mountain Apache Tribe v. Bracker, 48

U.S.L.W. 4897, 4901 (1980).

The State questions the existence of any inherent

tribal powers in this case. It argues that the Tribe could

not have exclusive rights in any traditional territory

because, in effect, there is no traditional territory: “the

Mescaleros were being swept from their lands by a tide of

white settlers.” Brief for Appellants at 37. If we were to

accept the State’s argument, we would be enshrining the

rather perverse notion that traditional rights are not to

be protected in precisely those instances when protection

is essential, i.e, when a dominant group has succeeded in

temporarily frustrating exercise of those rights. We

prefer a view more compatible with the theory of this

nation’s founding: rights do not cease to exist because a

government fails to secure them. See The Declaration of

Independence (1776).

In regulating game on the reservation, the Tribe thus

seeks to exercise its sovereign power in an area in which it

unquestionably has a “significant interest.” Cf. Washing-

ton v. Confederated Tribes of the Colville Indian Reserva-

tion, 48 U.S.L.W. 4668, 4673 (1980). This case is therefore

quite unlike Colville, in which the Court rejected tribal

claims to an exemption from state taxation of reservation

cigarette sales to non-members. Reservation sales outlets

were, except in location, identical to their off-reservation

competitors, and the product taxed was in no sense a

tribal creation. Unlike the situation in this case, no

significant tribal interest was involved.

This case is further unlike Colville in that here a

definite conflict exists between the tribal regulatory

13a

structure and that of the State. In Colville the tribal and

state taxing schemes were purely revenue-raising in na-

ture, and dual systems of pure taxation are not inherently

conflicting. In contrast, dual regulatory schemes, as the

Court implied, necessarily create mutual dislocations. 48

U.S.L.W. at 4674." It is because of this characteristic of

regulation that we presume, when Indian tribes under

federal protection seek to regulate their traditional inter-

ests, that federal law has preempted state jurisdiction. See

D. Getches, D. Rosenfelt & C. Wilkinson, Cases and Mate-

rials on Federal Indian Law 295-99 (1979). “[T]hose

standards of pre-emption that have emerged in other

areas of the law” generally do not apply “to federal

enactments regulating Indian tribes.” White Mountain

Apache Tribe v. Bracker, 48 U.S.L.W. 4897, 4899 (1980).

As this court has recently emphasized, “[T ]he cases stress

that regulatory powers in Indian country or on Indian

lands belong to the Congress except for inherent jurisdic-

tion of the tribes. Congress may delegate this authority to

the state, but when it does so it must be in specific terms.”

''In Mescalero Apache Tribe v. O’Cheskey, No. 77-2102

(10th Cir. June 5, 1980) (en banc), we were also not faced with

dual regulatory schemes. The state tax there at issue, like the

Colville tax, was purely revenue-raising in nature, and the Tribe

had not imposed its own taxing scheme. In United States v.

Montana, 604 F.2d 1162 (9th Cir. 1979), cert. granted, 48

U.S.L.W. 3661 (1980), the Ninth Circuit upheld dual regulation

of hunting and fishing on the Crow reservation. The court

assumed, however, that tribal-state cooperation would be

“forthcoming.” 604 F.2d at 1172. Because of the Mescalero

Apache Tribe’s clear position in this case, we may make no such

assumption. See also Confederated Tribes of the Colville Indian

Reservation v. Washington, 591 F.2d 89, 91 (9th Cir. 1979)

(“tribal government explicitly acknowledged that state

jurisdiction would not constitute an obstacle to its efforts”).

l4a

United States v. New Mexico, 590 F.2d 323,328 (10th Cir.

1978) (emphasis added)."”

As important as sovereignty is in this case, we need

not consider whether the Tribe’s sovereign powers alone

are sufficient to preempt state jurisdiction. The Supreme

Court has not ruled on that question but has noted, given

the pervasiveness of federal treaties and statutes, that it

is “something of a moot question.” McClanahan v. Arizona

State Tax Commission, 411 U.S. 164, 172 n.8 (1973). See

Note, Tribal Preemption, 54 Wash. L. Rev. 633, 689 (1979).

In this case, the treaty and statutory basis for federal

preemption is strong. We see as sources of preemption (1)

the treaty; (2) the Enabling Act for New Mexico; (3) the

Indian Reorganization Act of 1934; (4) the tribal con-

stitution and ordinances enacted pursuant to the IRA; (5)

the extensive federal developmental assistance; and (6)

the negative inferences from Public Law 280. These

factors, considered in light of the Tribe’s inherent powers

over reservation land and wildlife, compel our conclusion

of preemption.

The applicable treaty, as we have noted, implicitly

reserves to the Tribe control over reservation hunting and

fishing. In addition, the treaty is explicit in its expression

of federal dominance on the reservation. In Article 1 of

that document, the Tribe submits itself “exclusively [to]

the laws, jurisdiction, and government of the United

Insofar as other courts have improperly presumed the

existence of state jurisdiction in similar cases, their decisions do

not control our determination. See, e.g., United States v.

Montana, 604 F.2d 1162, 1172 (9th Cir. 1979), cert. granted, 48

U.S.L.W. 3661 (1980). Nor does past participation by the State

in reservation wildlife regulation necessarily limit any tribal

claim of sovereign powers. See Brief for Appellant at 55. Past

cooperation of the Tribe with the State reflects nothing more

than a temporary waiver of the Tribe’s preemptive rights in the

hunting and fishing area.

15a

States of America.” Treaty with the Apaches, July 1, 1852,

10 Stat. 979 (1852) (emphasis added).'* Further, the

treaty provides that the United States shall “designate,

settle, and adjust [the Tribe’s] territorial boundaries, and

pass and execute ... such laws as may be deemed con-

ducive to the prosperity and happiness of [the Mescalero

Apaches ].” Jd., art. 9, 10 Stat. 980.

The treaty’s exclusivity language aids our inter-

pretation of the Enabling Act for New Mexico, 36 Stat.

557 (1910), in which New Mexico Indian lands were placed

“under the absolute jurisdiction and control of the Con-

gress of the United States.” Although Organized Village of

Kake v. Egan, 369 U.S. 60, 68 (1962), said that “ ‘absolute’

federal jurisdiction is not invariably exclusive jurisdic-

tion,” Egan “did not purport to provide guidelines for the

exercise of state authority in areas set aside by treaty for

the exclusive use and control of Indians.” McClanahan v.

Arizona State Tax Commission, 411 U.S. 164, 176 n.15

(1973). In the area of resource management, the treaty

language in this case suggests that “absolute” jurisdiction

is indeed “exclusive” jurisdiction."

The tribal constitution gives to the Mescalero Apache

Tribal Council the power “[t]o protect and preserve the

property, wildlife and natural resources of the tribe, and

'’ New Mexico does not challenge the validity of the treaty.

The parties stipulated that it was signed by a representative of

the Tribe. Record, vol. 1, at 118.

‘The New Mexico Supreme Court has understood the impli-

cations of the McClanahan clarification of Egan. In a case

involving the Mescalero Apaches, the court viewed the clari-

fication as a refusal “to extend the concept of concurrent federal

and state jurisdiction to cases which arise in areas set aside by

treaty for the exclusive use and control of Indians.” Chino v.

Chino, 90 N.M. 204, 561 P.2d 476, 478 (1977).

l6a

to regulate the conduct of trade and the use and dis-

position of tribal property upon the reservation.” Mesca-

lero Apache Tribe Revised Const. art. 11, § 1(c)."° That

constitution was adopted and approved pursuant to the

Indian Reorganization Act of 1934, 25 U.S.C. § 476, under

which Congress provided that the adoption of a tribal

constitution reconfirms in the tribe “all powers vested ...

by existing law.” The statute thus reconfirms all pre-

existing powers of the Tribe and itself becomes a source of

preempting power. See White Mountain Apache Tribe v.

Bracker, 48 U.S.L.W. 4897, 4899, 4899 n.10 (1980); Note,

Balancing the Interests in Taxation of Non-Indian Activi-

ties on Indian Lands, 64 Iowa L. Rev. 1459, 1463, 1463 n.27

(1979).

Tribal power over reservation hunting and fishing

was unquestionably vested prior to 1934. Tribal ordi-

nances enacted to implement traditionally held, and con-

gressionally approved, powers, may themselves serve to

preempt the State. The Supreme Court saw another

similarly enacted tribal ordinance as the implementation

of “an overriding federal policy which is clearly adequate

to defeat state jurisdiction.” Fisher v. District Court, 424

U.S. 382, 390 (1976). Any constitutional limitations on

congressional authority to delegate its legislative powers

are “less stringent ... where [as here] the entity ex-

ercising the delegated authority itself possesses independ-

ent authority over the subject matter.” United States v.

Mazurie, 419 U.S. 544, 556-57 (1975). The tribal scheme

also negates any argument that the Tribe has not mani-

fested an intent to preempt state jurisdiction. Cf. Con-

federated Tribes of the Colville Indian Reservation v.

Washington, 591 F.2d 89 (9th Cir. 1979).

“The constitution also provides that “[n]o_provi-

sion...shall be construed as a limitation on the inherent

residual sovereign powers of the Mescalero Apache Tribe.”

Mescalero Apache Tribe Revised Const. art. 27, § 1.

17a

The Fourth Circuit has held that extensive federal

participation in reservation wildlife development is itself

an element indicating federal preemption. Eastern Band

of Cherokee Indians v. North Carolina Wildlife Resources

Commission, 588 F.2d 75, 78 (4th Cir. 1978). In Eastern

Band, as here, the federal government and the Tribe had

developed the reservation fishing program with no state

assistance. Where the State plays no role in stocking

reservation waters, it “has no perceivable interest in

reservation fishing.” Jd. See White Mountain Apache

Tribe v. Bracker, 48 U.S.L.W. 4897, 4901 (1980). See also

Central Machinery Co. v. Arizona State Tax Commission, 48

U.S.L.W. 4904 (1980).

Finally, we infer federal preemption from the statu-

tory structure of Public Law 280, 67 Stat. 590 (1953), and

its later amendments. Under that statute, New Mexico

had the option until 1968 of unilaterally asserting civil and

criminal jurisdiction over the Mescalero Apache reserva-

tion. It did not do so. See McClanahan v. Arizona State

Tax Commission, 411 U.S. at 177-79. Even had the State

assumed jurisdiction, the statute in its present form

specifically protects the tribes from the deprivation of

“any right, privilege, or immunity afforded under Federal

treaty, agreement, or statute with respect to hunting,

trapping, or fishing or the control, licensing, or regulating

thereof.” 25 U.S.C. § 1321(b). If those states which

accepted Public Law 280 jurisdiction may not hinder

traditional hunting and fishing rights, New Mexico a

fortiori may not do so.

The presumption of federal preemption is clearly not

overcome by a treaty and statutory scheme which reassert

‘In Eastern Band, Chief Judge Haynsworth emphasized

that the fishing program was a “purely commercial under-

taking” of the Cherokees. 588 F.2d at 79. We believe that the

tribal interests are, if anything, enhanced when the purposes of

the wildlife regulation are much broader.

18a

the exclusivity of federal and tribal regulation of hunting

and fishing. The State may not apply its game laws to

persons for acts done on the reservation."

III. Tribal Self-Government

The second test for determining the propriety of state

regulation on Indian reservations analyzes the impact of

the regulation on tribal self-government. Even if the

treaty and statutory scheme, read against the backdrop of

sovereignty, were insufficient to create federal preemp-

tion, the Tribe’s authority is here protected under a tribal

self-government analysis."

In the landmark case of Williams v. Lee, 358 U.S. 217

(1959), which upheld tribal court jurisdiction over non-

Indians, the Supreme Court restated the controlling test:

“Essentially, absent governing Acts of Congress, the

question has always been whether the state action in-

fringed on the right of reservation Indians to make their

own laws and be ruled by them.” Jd. at 220. To apply that

test, a court must “[seek] an accomodation between the

interests of the Tribes and the Federal Government, on

the one hand, and those of the State, on the other.”

Washington v. Confederated Tribes of the Colville Indian

"Qur analysis does not attach independent preemptive

significance to 18 U.S.C. § 1165. Cf. Central Machinery Co. v.

Arizona State Tax Commission, 48 U.S.L.W. 4904 (1980). The

import of that statute is addressed in Part V.

‘We recognize that the preemption and self-government

analyses overlap, and that the Supreme Court appears to be

gradually collapsing the tests into one. See Washington v.

Confederated Tribes of the Colville Indian Reservation, 48

U.S.L.W. 4668, 4673-74 (1980). Nonetheless, the two tests

continue to provide different analytical perspectives. See White

Mountain Apache Tribe v. Bracker, 48 U.S.L.W. 4897, 4899

(1980).

en EE a — -

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19a

Reservation, 48 U.S.L.W. 4668, 4674 (1980). Congress has

identified one overriding federal interest by “recogniz-

[ing] the obligation of the United States to respond to the

strong expression of the Indian people for self-

determination.” 25 U.S.C. § 450a(a).

In the context of its analysis of the pure-taxation

schemes of the tribe and state in Colville, the Supreme

Court delineated the relevant considerations for the bal-

ancing process:

While the Tribes do have an interest in raising

revenues for essential governmental programs,

that interest is strongest when the revenues are

derived from value generated on the reservation

by activities involving the Tribes and when the

taxpayer is the recipient of tribal services. The

State also has a legitimate governmental inter-

est in raising revenues, and that interest is

likewise strongest when the tax is directed at

off-reservation value and when the taxpayer is

the recipient of state services.

48 U.S.L.W. at 4674. In the case before us, the scales tip

decisively in the Tribe’s favor.

Unlike Colville, we here have a clear state inter-

ference with a traditional tribal regulatory power. To

restrict the application of the tribal scheme to members

only would be to complicate excessively the enforcement

process and to render the very idea of “regulation” an

absurdity. Here the Tribe has, with the aid of the federal

government, generated the “value...on the reservation”

which it now seeks to control and whose benefits it seeks to

enjoy. The state services received by on-reservation

sportsmen are minimai—incidental spillover effects of

state activities outside the reservation. In fact, the

spillover benefits to the State from the tribal conservation

20a

scheme—e.g., development of the migratory’ elk

herd—may well be more significant. Although New Mexi-

co has a legitimate interest in the conservation of its

wildlife, the Tribe’s activities do not threaten that inter-

est in any way.

The Ninth Circuit held, in United States v. Sanford,

547 F.2d 1085 (9th Cir. 1976), that Montana’s elk hunting

laws were applicable to non-Indians hunting on a tribal

reservation. The court found no indication that Montana

game laws interfered with tribal self-government. Jd. at

1089. In distinguishing Sanford, the Fourth Circuit em-

phasized that “there was no showing in Sanford that the

applicability of Montana’s game laws... would materially

affect or frustrate the Indians’ governance of themselves

or any commercial, conservationist or other program ad-

ministered by the Indians for their own advantage.”

Eastern Band of Cherokee Indians v. North Carolina Wild-

life Resources Commission 588 F.2d 75, 78-79 (4th Cir.

1978). In this case, precisely that sort of showing was

made.

Washington v. Confederated Tribes of the Colville In-

dian Reservation, 48 U.S.L.W. 4668 (1980), indicates that

state regulation of an activity in which a tribe has no

significant interest—and where the only effect on the

tribe is to limit tribal revenues—does not infringe upon

tribal self-government. /d. at 4673-74. However, such an

effect still remains a factor to be considered, for “financial

self-sufficiency” is “one major goal of tribal self-

government.” Eastern Bank of Cherokee Indians v. North

Carolina Wildlife Resources Commission, 588 F.2d at 78.

See also White Mountain Apache Tribe v. Bracker, 48

U.S.L.W. 4897, 4901 (1980). The unquestioned importance

to the Tribe of the game revenues contributed to the

district court’s determination that tribal self-government

was infringed upon, and we affirm that finding.

2la

Finally, we note that underlying the infringement

test is a desire to promote the development of indigenous

Indian institutions. Congress has declared that its policy

is “to help develop and utilize Indian resources. . . toa

point where the Indians will fully exercise responsibility

for the utilization and management of their own re-

sources.” 25 U.S.C § 1451. If we were to permit state

interference with the tribal scheme, we would be effec-

tively “deny[ing] Indians the opportunity of developing

their own system.” Chino v. Chino, 90 N.M. 204, 561 P.2d

476, 479 (1977). The federally declared policy of self-

determination becomes a mockery if it is subject to defea-

sance by the State.

IV. Environmental Concerns

This nation has recently begun to recognize the fra-

gility of the natural environment. However, the federal

system, whose competing sovereignties serve to protect

individual liberties, may not provide the optimum

environmental regulatory scheme. The State suggests

that, whatever the justification for exclusive tribal regu-

lation under a traditional legal analysis, the seriousness of

ecological problems creates an implied exception in this

case. The State proclaims that “its management efforts

are directed to biological rather than political units,” Brief

for Appellant at 27, so state regulation should be allowed.

The State vastly overstates its case. Just as wildlife

does not respect reservation boundaries, it also does not

respect the boundaries of states. The State surely does not

mean to suggest that it ignores state boundaries in its

enforcement efforts. Somewhat inconsistently, the State

also maintains that, “[s]ince wildlife exists in widely

varying conditions throughout the United States,” “there

is no dominant federal interest which requires preemp-

tion.” Brief for Appellant at 55. The State’s “biological

—_—— ———eee

22a

units” argument would seem logically to prefer federal

regulation, because only that regulation can take account

of the varying conditions without the restraints of politi-

cal boundaries. Hence, if ecological necessities were to

require changes in constitutional arrangements—a posi -

tion we certainly do not endorse—the changes would not

necessarily be those suggested by the State.

In its ecological analysis, the State misinterprets

Supreme Court language declaring the common law duty

of a “state in its sovereign capacity” to protect wildlife

“for the common benefit of all of its people.” LaCoste v.

Department of Conservation, 263 U.S. 545, 549 (1924).

That language does not describe the ecologically optimum

vehicle for regulation of wildlife. Nor does it require that

only one sovereign, the State, participate in wildlife

management. Instead, it is descriptive of the trusteeship

duty imposed on all sovereigns. The Tribe as a sovereign

has undertaken that duty, as the State concedes, in an

exemplary fashion, vastly improving the wildlife habitat

on the reservation. Therefore, the Ninth Circuit’s reason-

ing in United States v. Montana, 604 F.2d 1162 (9th Cir.

1979), cert. granted, 48 U.S.L.W. 3661 (1980)—that simul-

taneous state regulation is permissible if the stated pur-

pose is “conservation and proper management of game

and fish,” 604 F.2d at 1166—simply does not extend to this

case. Based on the Tribe’s record in wildlife management,

we, unlike the Ninth Circuit, are not “convinced that the

preservation and improvement of the stocks of fish and

game,” id. at 1170, requires dual regulation.

V. Enforcement

Our analysis has indicated that the Tribe has plenary

power over reservation wildlife management. In this

section we consider whether the absence of tribal criminal

jurisdiction over non-members necessitates a cutback in

that power.

23a

New Mexico relies heavily on an enforcement vacuum

that would allegedly exist if the State could not assert its

criminal jurisdiction over the Indian reservation. The

State insists that “[c]riminal jurisdiction over non-

Indian hunters and fisherman [sic] is indispensable to

effective management.” Brief for Appellant at 36. Oli-

phant v. Suquamish Indian Tribe, 485 U.S. 191 (1978),

effectively repudiated tribal criminal jurisdiction over

non-members, and 18 U.S.C. § 1165,” it is argued, gives

the United States jurisdiction over trespass only. Hence,

the State maintains that without state criminal sanctions,

violations by non-members would go unpunished and

enforcement would be impossible. We believe New Mexico

has overstated the effect of Oliphant and the need for

criminal jurisdiction, and has underestimated the poten-

tial reach of § 1165.

New Mexico’s interpretation of Oliphant would lead to

the untenable conclusion that the Supreme Court impli-

citly abolished most aspects of tribal sovereignty, while at

the same time asserting the continuing validity of that

doctrine.” Many tribal powers that derive from inherent

’ Section 1165, entitled “Hunting, trapping, or fishing on

Indian land,” reads:

Whoever, without lawful authority or permission,

willfully and knowingly goes upon any land that

belongs to any Indian or Indian tribe, band, or group

and either are held by the United States in trust or

are subject to a restriction against alienation imposed

by the United States, or upon any lands of the United

States that are reserved for Indian use, for the

purpose of hunting, trapping, or fishing thereon, or

for the removal of game, peltries, or fish therefrom,

shall be fined not more than $200 or imprisoned not

more than ninety days, or both, and all game, fish,

and peltries in his possession shall be forfeited.

* Recent Supreme Court reiterations of the continuing

importance of tribal sovereignty are legion. See, e.g., Santa

(footnote continues)

24a

sovereignty would perhaps best be enforced through crim-

inal sanctions. However, the Oliphant Court clearly did

not intend to end all traditional tribal authority, in-

cluding, for example, the taxing power—a power this

court has recently reaffirmed. See Merrion v. Jicarilla

Apache Tribe, 617 F.2d 537 (10th Cir. 1980)(en banc). In

fact, the Supreme Court has recognized the limited nature

of the Oliphant holding. See Wushington v. Confederated

Tribes of the Colville Indian Reservation, 48 U.S.L.W. 4668,

4673 (1980).

Many regulatory schemes, at all levels of government,

exist without criminal sanctions for enforcement pur-

poses. New Mexico itself relies in part on civil sanctions in

its hunting and fishing enforcement scheme. See, e.g.,

N.M. Stat. Ann. § 17-2-26 (1978). Although the Tribe

may not assert criminal jurisdiction over non-members,

the Supreme Court has at no time denied the power of an

Indian tribe to assert its civil powers. For example,

“{t]ribal courts have repeatedly been recognized as

appropriate forums for the exclusive adjudication of dis-

putes affecting important personal and property interests

of both Indians and non-Indians.” Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 65 (1978). See also Williams v. Lee,

358 U.S. 217 (1959). There is no inconsistency in the

existence of tribal regulatory power without the avail-

ability of criminal sanctions. Cf. United States v. Montana,

604 F.2d 1162, 1165 (9th Cir. 1979), cert. granted, 48

U.S.L.W. 3661 (1980). Included in the Tribe’s unquestion-

ed authority is the power to expel those who violate tribal

ordinances on the reservation. See Quechan Tribe of

Indians v. Rowe, 581 F.2d 408, 411 (9th Cir. 1976).

(footnote continued )

Clara Pueblo v. Martinez 436 USS. 49, 55-56 (1978); United

States v. Wheeler, 435 U/S. 313, 322-28 (1978); Oliphant v.

Suquamish Indian Tribe, 435 U.S. 191, 208 (1978); United States

v. Antelope, 430 U.S. 641, 646 (1977); United States v. Mazurie,

419 U.S. 544, 557 (1975).

25a

We reject the State’s assertion that we must imply a

divestiture of tribal sovereignty in any area in which the

Tribe becomes involved with non-members. The Supreme

Court has noted that “[t]he areas in which . . . implicit

divestiture of sovereignty has been held to have occurred

are those involving the relations between an Indian tribe

and nonmembers of the tribe,” United States v. Wheeler,

435 U.S. 313, 326 (1978), but the Court did not mean that

sovereignty has necessarily been divested whenever a

tribe’s external relations are involved. The divestiture

found in Oliphant is of a very special sort, and “[i]n most

respects the Oliphant Court’s rationale does not apply to

noncriminal cases.” Collins, Implied Limitations on the

Jurisdiction of Indian Tribes, 54 Wash. L. Rev. 479, 508

(1979). See Note, Balancing the Interests in Taxation of

Non-Indian Activities on Indian Lands, 64 Iowa L. Rev.

1459, 1467-69 (1979).

Even if tribal civil sanctions are not sufficient to

provide efficient wildlife regulation, the criminal author-

ity of the United.States under 18 U.S.C. § 1165 could be

interpreted broadly enough to fill much of any enforce-

ment vacuum. When a non-member violates, for example,

a tribal bag limit, he can be considered to have gone upon

tribal land “without lawful authority or permission.” His

permission to enter was conditioned upon his observance

of tribal game regulations.”’ The scienter element of the

statute does not require for conviction that the offender

This interpretation of § 1165 may differ in spirit from

that of the Ninth Circuit: “[S]ection 1165 must be considered to

be a statute providing a penalty for trespass to an Indian

reservation and not an attempt by Congress to enter the field of

fish and game regulation.” United States v. Sanford, 547 F.2d

1085, 1089 (9th Cir. 1976) (quoting State v. Danielson, 427 P.2d

689, 691 (Mont. 1967)). However, we do not believe that it

differs in substantive result. It is sufficient for purposes of

providing an enforcement mechanism that § 1165 be read mere-

ly as an anti-trespass statute.

. |

26a

intended to violate tribal lawful authority when he en-

tered the land. The requirement is only that he “know-

ingly goes upon any land . . . for the purpose of hunting,

trapping, or fishing thereon.” If the statute does leave an

enforcement vacuum, it would be for that very limited

class which enters the reservation with no intent to

participate in hunting, trapping or fishing and then

violates the tribal game ordinances.

VI. Effect of Injunction

We must address one final question, an alleged lack of

clarity in the district court’s order. That ambiguity

reflects, it is argued, the application of improper stan-

dards in granting injunctive relief. The State suggests

that the district court’s injunction provides incomplete

relief to the Tribe because it expressly governs only “acts

done on the Reservation” and does not address the State’s

claimed power to regulate possession of game off the

reservation. Brief for Appellant at 23-24.

No dilemma exists. The simple answer is that, absent

justification, the State may not discriminatorily prohibit

possession of game lawfully obtained from the reservation

while permitting possession of game obtained elsewhere.

See N.M. Stat. Ann. § 17-2-7A(2) (1978). A proper game

license from another state is presumably a defense to a

New Mexico prosecution for possession of game without a

New Mexico license. The same principle applies to game

obtained on the reservation with a proper tribal license.

Unless New Mexico is willing to prohibit possession of

game altogether, it may not prohibit possession of game

legally obtained from a source outside the State’s jurisdic -

tion. The Supreme Court has recently stressed that a

state’s historic interest in protection of wild animals, see

Geer v. Connecticut, 161 U.S. 519 (1896), does not extend to

27a

the “ownership of game that had been lawfully reduced to

possession.” Hughes v. Oklahoma, 441 U.S. 322, 327 (1979).

The district court’s injunctive order properly pro-

tected its declaratory judgment.

AFFIRMED.

No. 78-1790—Mescalero Apache Tribe v. State of New

Mexico

BREITENSTEIN, Circuit Judge, concurring in the result.

I concur in the result. In my opinion New Mexico may

not enforce its fishing and hunting jaws on the Mescalero

Apache Reservation. The Tribe has the right of self-

government. See Joe v. Marcum, 10 Cir., F.2d .

Nos. 78-1912 and 78-1932, opinion filed May 16, 1980. The

control which the Tribe has exercised over fishing and

hunting is reasonable. The Supreme Court has long been

solicitous in its protection of the fishing and hunting

rights of Indians. Cheyenne- Arapaho Tribes v. State of

Oklahoma, 10 Cir., 618 F.2d 665, 669. Dual Tribe and State

control may be appropriate as an aid in the conservation

of fish and game. Id. at 667. The instant record shows no

need for joint conservation measures. The right of the

State to regulate off-reservation possession of game law-

fully reduced to pussession in accordance with Tribal law is

foreclosed by Hughes v. Oklahoma, 441 U.S. 322, 327, 335-

336.

28a

IN THE

United States District Court

For THE DISTRICT OF NEW MEXICO

MESCALERO APACHE TRIBE,

Plaintiff,

Vv. No. 77-395-M

Civil

STATE OF NEW MEXICO and

WILLIAM S. HUEY, Individually

and as Director of the New

Mexico Department of Game

and Fish, or his Successors

in Office,

Defendants.

JUDGMENT AND INJUNCTION

This case having come on for non-jury trial, the

evidence having been heard and the arguments consid-

ered, a memorandum opinion has been entered which

constitutes the findings of fact and conclusions of law; and

having found the issues in favor of the plaintiff and

having concluded that the plaintiff has made the requisite

showing for issuance of an injunction against the defend-

ants; Now, Therefore,

IT IS ORDERED that judgment is hereby entered

against the defendants, and in favor of the plaintiff, the

Mescalero Apache Tribe; and the hunting and fishing laws

and regulations of the State of New Mexico are hereby

declared inapplicable to any person, Indian or non- Indian,

hunting or fishing within the exterior boundaries of the

Mescalero Apache Reservation and jurisdiction to regulate

29a

hunting and fishing within the Mescalero Apache Reser-

vation is hereby declared to rest with the Mescalero

Apache Tribe and the United States to the exclusion of the

defendant the State of New Mexico; and

IT IS FURTHER ORDERED that the defendants or their

agents are permanently enjoined from enforcing New

Mexico hunting and fishing laws and regulations against

any person either on the Reservation or after they have

left the Reservation for acts done on the Reservation.

United States District Judge

30a

IN THE

United States District Court

For THE DISTRICT OF NEW MEXICO

MESCALERO APACHE TRIBE,

Plaintiff,

Vv. No. 77-395-M

Civil

STATE OF NEW MEXICO and

WILLIAM S. HUEY, Individually

and as Director of the New

Mexico Department of Game

and Fish, or his Successors

in Office,

Defendants.

MEMORANDUM OPINION

The plaintiff, the Mescalero Apache Tribe, brought

this action against the State of New Mexico for declara-

tory and injunctive relief. The plaintiff contends that the

United States has authorized the Mescalero Apache Tribe

exclusively to manage and to regulate the hunting and

fishing resources on the Mescalero Apache Reservation

and that the State of New Mexico is unlawfully infringing

upon this exclusive jurisdiction, thereby violating the

Tribe’s right of self-government. The plaintiff seeks a

judgment that New Mexico’s hunting and fishing laws

and regulations are inapplicable to any person, Indian or

non- Indian, hunting or fishing within the exterior bound-

aries of the plaintiff’s Reservation and that jurisdiction to

regulate hunting and fishing within the Mescalero Apache

Reservation rests with the Mescalero Apache Tribe and

the United States to the exclusion of the defendant. The

3la

plaintiff also seeks to permanently enjoin the defendant

State from enforcing its hunting and fishing laws and

regulations against any person, either on the Reservation

or after they have left it, for acts done on the Reservation.

The following will constitute my findings of fact and

conclusions of law. I conclude in favor of the plaintiff.

The plaintiff invokes federal jurisdiction pursuant to

28 USC 1331 and 28 USC 1362. Jurisdiction is present.

The defendant raises the issues of ripeness and standing.

The defendant, in addition, argues that the United States

and the Secretary of the Interior are indispensable parties

to the plaintiff’s action. There is no basis to these

contentions.

A justiciable controversy exists here. Even though

one hunting season has ended, another is imminent. State

enforcement of its laws and regulations against persons

hunting and fishing on the plaintiff’s Reservation persists.

In the defendant’s proposed findings of fact, the defend-

ant states: “The State of New Mexico has enforced and

intends to continue to enforce its hunting and fishing laws

and regulations against non-Indians hunting and fishing

on Indian lands, including the Mescalero Apache Reserva-

tion.” The case is not moot and the plaintiff has standing

to litigate. The plaintiff alleges injury in fact and an

interest within that zone of interests protected by the

constitutional guarantee in question. See: Assoc. of Data

Processing Service Organizations, Inc. v. Camp, 397 U.S.

150 (1970).

A determination that New Mexico game laws are not

applicable to non-Indian activity within the Mescalero

Apache Reservation cannot injuriously affect the interests

of the United States and the plaintiff has a legal right to

bring this action in its own behalf. Neither will a

determination in this cause affect the Secretary of the

Interior; no act would be required of the Secretary

32a

regardless of the outcome of the suit. The defendant’s

contentions regarding indisyensable parties, therefore,

are without basis.

The parties have stipulated that the Mescalero Apache

Tribe is a federally recognized Indian Tribe governed by

its revised constitution of January 12, 1965, which was

adopted pursuant to 25 USC 476. The governing body of

the Mescalero Apache Tribe is duly recognized by the

United States Secretary of Interior. The Tribe signed a

treaty with the United States on July 1, 1852, which

submitted the Tribe and its members to the laws, jurisdic-

tion, and government of the United States of America.

Article 9 of the Treaty provided that the United States

government would designate, settle and adjust the bound-

aries of the Mescalero Apache lands. The Reservation of

the Mescalero Apache Tribe was originally created by a

Presidential Order in 1878, was modified by subsequent

Executive Orders, and was established as it presently

exists by an Executive Order dated March 24, 1883. The

Reservation is located entirely within the State of New

Mexico in the aboriginal territory of the Mescalero

Apache.

Over the past several years the Mescalero Apache

Tribe has developed an extensive tourism program de-

signed to bring income and employment to the Reserva-

tion. As a part of that program and in order to better

manage and control its wildlife resources the Tribe,

pursuant to its constitution, has adopted hunting and

fishing ordinances requiring tribal licenses, setting bag

limits, and establishing programs and seasons for hunting

and fishing on the Reservation. The Tribe’s 1977 ordi-

nances were duly approved by the Secretary of Interior.

The Tribe benefits economically from hunting and fishing

revenues. Fees from tribal licenses provide individual

tribal members a wide range of governmental and social

services. The Tribe employs seven full-time conservation

33a

officers who assist a Bureau of Indian Affairs range

conservationist with game management, aerial surveys,

and pellet group transect studies to determine the deer,

elk, antelope and bear populations on the Reservation.

In 1966 and 1967 the National Park Service donated

an elk herd to be released on the Mescalero Apache

Reservation. At that time it was estimated the elk in the

general area of the Reservation numbered 13; the herd

imported from Wyoming numbered 162. Although the

antelope population on the Reservation is non- migratory,

the elk range freely on and off the Mescalero Apache

Reservation throughout the year. Since elk were planted

in 1966, however, the Tribe has placed several wells in

areas previously unable to support cattle because of ab-

sence of water. This considerable amount of range devel-

opment has removed cattle from direct competition with

elk in the higher parts of the Reservation. The Reserva-

tion is well suited to support elk as well as other game and

the elk population in the area is now estimated at 1200.

The Bureau of Sport Fisheries and Wildlife of the

United States Fish and Wildlife Service, Department of

the Interior, operates a National Fish Hatchery on the

Reservation and provides technical assistance in the man-

agement and development of fishery resources in Reserva-

tion waters. There are no natural lakes within the

boundaries of the Reservation. Several man-made lakes

have been constructed with federal funds and are stocked

from the National Fish Hatchery.

Within the boundaries of the Mescalero Apache

Reservation the State of New Mexico, in the last eight

years, has not selected or improved any land or water

areas as adaptable for wildlife feeding, resting or breed-

ing places. The State has not adopted nor formulated any

plans for restocking lakes and streams with fish, has not

conducted research into problems of fish management or

34a

administration of fish resources, and has undertaken no

wildlife restoration projects. In short, the Tribe conducts

its complete fish and game management program ex-

clusive of the State of New Mexico.

The State, nevertheless, has been actively prosecuting

non-Indians for violation of New Mexico hunting and

fishing laws for acts committed within Reservation limits

that did not violate tribal law. Section 53-2-31 N.M.S.A.

1953 Comp. states that the hunting and fishing laws of the

State are applicable to“... all Indians off the reservation

within the state or coming into the state from adjoining

states, and to all persons hunting on any Indian reserva-

tion within the state...” except that no Indian is re-

quired to have a license to hunt or fish within the limits of

the reservation where he resides. This conflicts with the

law of the Tribe. Mescalero Apache Tribal Ordinance 77-1

provides: “No state license of any kind shall be necessary

for any person.” Other conflicts between State and Tribal

regulations exist with regard to bag limits, fishing licens-

es, hunter training course requirements, and season dates.

New Mexico 1978 Big Game Proclamation begins the

antelope season on August 29, 1978; Tribal Ordinance 78-3

begins the antelope season on the Reservation on August

28, 1978. The State’s hunting proclamation prohibits

anyone who held an elk license in 1977 from applying

again in 1978. The Tribe has no such restriction. The same

New Mexico prohibition applies to antelope licenses, but

the Tribe has no such restriction. Thus the present suit

arises.

“As a basic proposition it is clear that Indians

traditionally enjoyed the exclusive right to hunt and fish

on lands reserved to them, unless such rights were clearly

relinquished by treaty.” Confederated Tribes of the Colville

Indian Reservation v. State of Washington, 412 F. Supp.

651, 654 (1976). See also: Menominee Tribe v. United

States, 391 U.S. 404 (1968). Thus before the Mescalero

35a

Apache Tribe signed the Treaty of July 1, 1852, it had

inherent and complete authority to control the fish and

game found within the confines of the tribal territory.

This right was part of the Indians’ “larger rights” and

was “not much less necessary to the existence of the

Indians than the atmosphere they breathed.” United

States v. Winans, 198 U.S. 371, 381 (1905). It was not

surrendered by the Treaty of July 1, 1852. Even though

the Treaty is silent as to hunting and fishing rights, it

must be viewed as “not a grant of rights to the Indians,

but a grant of rights from them—a reservation of those

not granted.” Jd. A tribe reserves its right to control

hunting and fishing in the area in which it resides

whether or not such right is specifically mentioned in a

treaty. Menominee Tribe v. United States, supra. Whether

the reservation on which the right is to be exercised is

created by Executive Order or by treaty makes no differ-

ence. Antoine v. Washington, 420 U.S. 194 (1975). A

treaty is to be construed liberally and not to the prejudice

of the Indians. United States v. Winans, supra. Antoine ».

Washington, supra. McClanahan v. Ariz. State Tax Com-

mission, 411 U.S. 164 (1973).

Aboriginal possession “creates a possessory right le-

gally enforceable against everyone except the United

States.” United States v. Santa Fe Pacific Railroad Co., 314

U.S. 339, 342 (1941). United States v. Tillamooks, 329 U.S.

40 (1946). Such right can be limited or abolished only by

the United States. Worchester v. Georgia, 31 U.S. (6 Pet.)

515 (1832). United States v. Mazurie, 419 U.S. 544 (1975).

Wilkinson and Volkman, “Judicial Review of Indian

Treaty Abrogation: ‘As Long As Water Flows, or Grass

Grows Upon the Earth’—How Long a Time Is That?”, 63

Calif. Law Rev. 601 (1975). No Presidential act and no

federal legislation since 1852 has abrogated either the

Treaty of July 1, 1852 or the Mescalero Apache Tribe’s

right to control hunting and fishing on its Reservation.

36a

Whether the test for finding an abrogation of treaty

rights is “a clear showing of legislative intent”, “not

lightly implied” or “express legislative reference” need

not be decided. By any of these measures the Mescalero

Apache Tribe has not lost its hunting and fishing rights.

This conclusion is reinforced by specific federal legis-

lation, including 18 USC 1165. See: S. Rep. 1686, 86th

Cong. 2d Sess. (1960). Section 1165 makes it a crime to go

upon Indian lands for the purpose of hunting, trapping or

fishing without permission of the tribe. The tribe decides

who may and who may not hunt and fish within its

reservation. This power is confirmed, as well, in the

Indian Reorganization Act of 1934, 25 USC 461 et seq.

Title 25 USC 1321, the successor to Public Law 280, gives

some states limited jurisdiction over specified Indian af-

fairs, but exempts “any right, privilege or immunity

afforded under Federal treaty, agreement, or statute with

respect to hunting, trapping or fishing or the control,

licensing or regulating thereof.” Public Law 280 is not

applicable in New Mexico. Its language and that of

Section 1321 (b), however, indicate a congressional policy

to allow all Indian tribes self-government in specific areas

including fish and game regulation and, in those states

such as New Mexico which are not Public Law 280 states,

to allow tribes self-government in other matters as well.

Hence, in addition to aboriginal and treaty rights, Con-

gress has clearly allowed Indian tribes, including the

Mescalero, continued powers over reservation hunting and

fishing.

Does this right exist in the tribe exclusively? The

recent case of White Mountain Apache Tribe v. State of

Arizona, No. 77-867 Civ., D. Ct. Ariz., Decided June 13,

1978, holds that it dves not. Predicated on dual state-

tribal jurisdiction over Indian lands and lack of specific

legislative authority delegating to the White Mountain

Apache Tribe power to preempt state fish and game laws,

37a

the case concludes in favor of the State because “the

overlapping jurisdiction of state and tribal law to non-

Indian on-reservation hunting and fishing does not

significantly infringe on a legitimate tribal interest in

self-government.”

The Court in White Mountain Apache finds that

United States ownership of land within a state’s bound-

aries does not withdraw the land from the jurisdiction of

the state. I find, likewise, that the State of New Mexico

has jurisdiction over some federal lands within its bound-

aries. But as to state jurisdiction there exists not one, but

several different situations. Little similarity exists, for

example, between the exercise of state jurisdiction on

national forest lands and the exercise of state jurisdiction

on military reservations. Federal jurisdiction over public

lands “may range from exclusive federal jurisdiction with

no residual state police power (cites omitted), to con-

current, or partial, federal legislative jurisdiction which

may allow the State to exercise certain authority.” Kleppe

v. State of New Mexico, 426 U.S. 529, 542 (1976). Land

owned by the United States cannot be considered as if it

were of one kind only. To find, as the Court in White

Mountain Apache does, that states have concurrent

jurisdiction over all federal land within their boundaries is

not consistent with the law I read on the subject. Such a

general conclusion neglects to consider what is essential to

the question of jurisdiction in Indian country: the Com-

merce Clause and the Supremacy Clause of the United

States Constitution and a long line of federal Indian cases

beginning with Worcester v. Georgia, supra.

The Constitution, Article I, Section 8, gives the Fed-

eral government plenary power “to regulate Commerce

with foreign Nations, and among the several States, and

with the Indian tribes.” Worcester v. Georgia, supra, ex-

amined the Commerce Clause and the basic relationships

38a

among tribal, state and federal governments. Worcester

held that the Constitution gives to the federal govern-

ment plenary power to regulate Indian affairs and that,

because Indian territory is territory distinct from that of

a state, state laws do not apply within its boundaries. In

one of many passages that remain a basis of contemporary

Indian law, Worcester speaks of “the universal conviction

that the Indian nations possessed a full right to the lands

they occupied, until that right should be extinguished by

the United States, with their consent; that their territory

was separated from that of any State, within whose

chartered limits they might reside, by a boundary line,

established by treaties; that the whole power of regulating

the intercourse with them was vested in the United

States.” 8 Law. Ed. at 501.

No doubt Worcester v. Georgia has been modified.

Oliphant v. Suquamish Indian Tribe, U.S. Supr. Ct. Slip

Op. No. 76-5729, Decided March 6, 1978, qualified the scope

of tribal powers by limiting tribal criminal jurisdiction.

Yet the broad principles of Worcester, that the federal

government has plenary authority in the regulation of

Indian affairs and that Indian people are sovereign na-

tions apart from the states, stand. Williams v. Lee, 358

U.S. 217, 219 (1959). “The sovereignty that the Indian

tribes retain is of a unique and limited character. It exists

only at the sufferance of Congress and is subject to

complete defeasance. But until Congress acts, the tribes

still possess those aspects of sovereignty not withdrawn by

treaty or statute, or by implication as a necessary result of

their dependent status.” United States v. Wheeler, U.S.

Supr. Ct. Slip Op. No. 76-1629, Decided March 22, 1978.

See also: McClanahan v. Arizona State Tax Commission,

supra.

The Court in White Mountain Apache v. State of

Arizona, supra, purports to find, first, state authority to

extend its police powers to affairs on Indian reservations,

and then looks for legislative authority permitting the

39a

Indian tribe to preempt this state law. I take a different

approach. I conclude from the Constitution, the Treaty of

July 1, 1852, and the case law that authority to regulate on

the Mescalero Apache Reservation, or on any Indian

reservation, rests entirely in the federal government and,

although Congress can relinquish to the several states

aspects of its jurisdiction over Indian affairs, the intent of

Congress to give up any part of such authority must be

clear. Ex Parte Crow Dog, 109 U.S. 556 (1883). Bryan v.

Itasca County, 426 U.S. 373 (1976). It is legislation giving

New Mexico authority to regulate on the Mescalero

Apache Reservation that I must look for but do not find.

The defendant argues that because the State of New

Mexico receives federal matching funds under the

Pittman-Robertson Act, for wildlife management, and

the Dingle-Johnson Act, for fish management, calculated

by a method that includes the land area of the Mescalero

Apache Reservation, Congress must be intending that the

State of New Mexico exercise jurisdiction over the Reser-

vation. The legislation in question does not meet the test

of clear legislative intent. “Certain state laws have been

permitted to apply to activities on Indian reservations

where those laws are specifically authorized by Acts of

Congress, or where they clearly do not interfere with

federal policies concerning the reservations.” Warren

Trading Post Co. v. Ariz. Tax Commission, 380 U.S. 685, 687

(1965), emphasis added. The legislation cited by the

defendant simply employs a formula adaptable to dis-

similar situations, including those where an Indian reser-

vation consents to a State’s wildlife management scheme.

In the instant case the Mescalero Apache Tribe conducts

its own management program and enforces its own regu-

lations; and the federal legislation in question is in-

sufficient by itself to give the State of New Mexico

authority to intervene.

40a

I am not saying that it is 18 USC 1165 that prevents

the defendant here, the State of New Mexico, from inter-

fering with tribal fish and game regulation on the Mesca-

lero Apache Reservation. In the case of United States v.

Sanford, 547 F2d 1085 (9th C. 1976), the Court reasoned

that 18 USC 1165 did not constitute an attempt by

Congress to enter the field of fish and game regulation.

The Sanford case held that Montana fish and game laws

did apply on the Crow Indian Reservation. But the

Sanford case and the present one differ significantly. |

find with the Mescalero Apache Tribe a comprehensive

fish and game policy together with an adequate and

enforceable set of tribal ordinances. United States v. San-

ford, supra, did not reach the question presented by the

facts in the present case. In the absence of tribal

ordinances, no law of the Crow Reservation conflicted with

Montana law. In the absence of federal action regarding

hunting and fishing on the Crow Reservation, Montana

law could not be said to interfere with federal policies.

Thus, despite specific authority, in the lack of conflict state

law could be permitted to apply on the Reservation. I

note, however, that the Court in Sanford stated: “We

express no opinion concerning the possible concurrent

application of tribal law to non-Indians on Indian reser-

vations under the circumstances of this case”, 547 F2d at

1089.

Reading United States v. Sanford with United States v.

Finch, 548 F.2d 835 (9th C. 1977), I understand the Ninth

Circuit to recognize those same Indian rights I have

discussed and to consider 18 USC 1165 for the same

purposes for which I have considered it. As the Court said

in Finch, “The language and the history of 18 USC 1165

show that the right of Indians to control hunting, trap-

ping and fishing on their lands is a prerogative of own-

ership which the United States recognizes as a matter of

federal law.” 548 F.2d at 834.

—

4la

What I do believe prevents the exercise of state fish

and game jurisdiction on the Mescalero Apache Reserva-

tion is federal preemption of the field. On July 1, 1852, the

Mescalero Apache Tribe, in Article One of the Treaty,

placed itself “exclusively under the laws, jurisdiction, and

government of the United States.” The New Mexico

Enabling Act, 36 Stat. 557 (1910) states:

All right and title... to all lands lying within

said boundaries owned or held by any Indian or

Indian tribes the right or title which shall have

been acquired through or from the United States

or any prior sovereignty, and that until the title

of such Indian or Indian tribes shall have been

extinguished the same shall be and remain sub-

ject to the disposition and under the absolute

jurisdiction and control of the Congress of the

United States.

The defendant maintains that absolute jurisdiction is not

exclusive jurisdiction. Because of the Supremacy Clause of

the United States Constitution, however, even in a field

where a state might legislate, or where state law could be

applied absent federal law in the area, a state’s power is

subordinate to federal law. Once Congress has chosen to

adopt a comprehensive, integrated scheme of regulation

ia a given area, state action is precluded. Hines v.

Davidowitz, 312 U.S. 52 (1940). Warren Trading Post Co.

v. Arizona Tax Commission, supra.

White Mountain Apache Tribe v. State of Arizona,

supra, rejected the preemption argument and used an

infringement test analysis. The infringement test is

clearly set out in Williams v. Lee, supra: “Essentially,

absent governing Acts of Congress, the question has

always been whether the state action infringed on the

right of reservation Indians to make their own laws and

be ruled by them.” 358 U.S. at 220. The infringement test

is coupled in Williams v. Lee with the preemption doctrine,

42a

that is “absent governing Acts of Congress.” Subsequent

cases have \ever used the infringement test by itself; it is

a concomitant consideration. Kennerly v. District Court of

Montana, 400 U.S. 423 (1971).

I understand that New Mexico’s hunting and fishing

laws are not enforced against members of the Mescalero

Apache Tribe on their own Reservation and that no State

officers go on the Mescalero Apache Reservation to enforce

against non-Indians. Notwithstanding New Mexico’s

present enforcement policies, the Mescalero Apache Tribe

is fully able to govern its own members. On the other

hand, revenues from tribal hunting and fishing licenses

greatly benefit the Mescalero Apache Tribe. The Tribe

owns and operates a large hotel on its Reservation. Tour-

ism is a major source of tribal income and revenues from

tourists attracted by fishing and hunting on the Reserva-

tion contribute substantially to the Tribe’s financial wel-

fare. These facts are substantially the same as those in

Eastern Band of Cherokee Indians v. State of North Caro-

lina Department of Natural and Economic Resources, Civ.

No. BC-C76-65, D. Ct. W.D. No. Carol., Decided August 21,

1976. In Eastern Band of Cherokee Indians, the United

States, as in this case, had provided financial and technical

assistance to a tribal wildlife program; the Tribe had

enacted extensive regulations regarding hunting and

fishing on the Reservation; the Tribe had a well-developed

tourism program; and enforcement of the state’s hunting

and fishing laws, even as against non-Indians only, had a

direct impact upon the revenues of the Tribe. In-

fringement was not the test relied on, however; the Court

based its holding on preemption. “This Court finds and

concludes that the federal government has assumed com-

prehensive supervision and management of trout fishing

on the Reservation and has thereby preempted this field,

and has delegated its regulatory power to the plaintiff,

Eastern Band of Cherokee Indians. It therefore follows

48a

that the State has no authority to levy and collect the

fishing license fee.” Eastern Band of Cherokee Indians,

supra, cf. Confederated Tribe of the Colville Indian Reser-

vation v. State of Washington, supra. Whether or not the

defendant’s actions in the present case, then, infringe on

the self-government of the Mescalero Apache Tribe is not

the principle consideration.

Confederated Tribes of the Colville Indian Reservation

v. State of Washington is another case similar in facts to

the one at hand. The Colville Indian Reservation was

established by Executive Order on July 2, 1972. The

Colville Indians have developed a program of sport fishing

and tourism on the reservation and have been supported

by the financial and technical assistance of the United

States Fish and Wildlife Service. The Tribes have a set of

fishing ordinances and regulations requiring tribal licens-

es but not a license from the State of Washington. When

the State attempted to enforce its license requirement on

non-Indians fishing within the boundaries of the Colville

Reservation, the Tribes brought suit. The Court concluded

that the Indians had fishing and hunting rights not

relinquished by treaty, that although some tribal jurisdic-

tion had been taken from the Tribes and given to the

State of Washington by express provisions of Public Law

280, the Colville Indians had retained their jurisdiction

over hunting and fishing, and that “Since plaintiff

(tribes) has enacted a comprehensive program for the

administration of tribal fisheries resources as authorized

by the proviso of Section 1162(b), any state infringement

of the tribes’ exercise of this regulatory power would

violate the Supremacy Clause.” 412 F.Supp at 655. “Fur-

ther, the exercise of such delegated powers has the same

force and effect under the Supremacy Clause as if ex-

ercised by the federal government directly.” Jd.

United States v. Mazurie, supra, dealt with the dele-

gation of Congressional authority to an Indian tribe. The

44a

Wind River Tribes in Wyoming had adopted an ordinance

which permitted liquor sales on the reservation, but which,

in 1971, was amended to require both a state and a tribal

license. In 1972, Mazurie applied for a tribal license and

the license was denied. Mazurie continued his liquor sales

without a tribal license until federal officers seized the

alcoholic beverages and a criminal prosecution was in-

itiated. The tribal court entered judgments of conviction;

the Court of Appeals reversed on the grounds that the

prosecution had failed to prove the bar was not excluded

from “Indian country” under the exception for fee-

patented lands and that the tribal ordinance was an

invalid delegation of Congressional authority. The Su-

preme Court held, as to the second ground, that the

delegation of federal authority to the Indian tribe was

proper. The Court stated at 556-557:

This Court has recognized limits on the authority

of Congress to delegate its legislative power.

(Cite omitted.) Those limitations are, however,

less stringent in cases where the entity ex-

ercising the delegated authority itself possesses

independent authority over the subject matter.

(Cite omitted.) Thus it is an important aspect of

this case that Indian tribes are unique aggrega-

tions possessing attributes of Sovereignty over

both their members and their territory, Worces-

ter v. Georgia, 6 Pet. 515, 557 (1832); they are “a

separate people” possessing “the power of regu-

lating their internal and social relations... ,”

United States v. Kagama, 118 U.S. 375, 381-382

(1886); McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164, 173 (1973).

The fish and game ordinances and regulations of the

Mescalero Apache Tribe, therefore, authorized and sanc-

tioned by the federal government and accompanied by

active federal support of the fish and game program on

45a

the Mescalero Reservation, provide the integrated scheme

that results in the federal preemption of fish and game

law on the Mescalero Apache Reservation. The United

States had acted in the exercise of its fiduciary duty to an

Indian tribe. It has, additionally, permitted tribal regu-

lations reaching non-Indians that, had it wanted, the

federal government itself could have enacted. As stated

in Eastern Band of Cherokee Indians, supra:

... these governmental acts, under congressional

authority and approval, relate to the exercise of

guardianship and protection over the Eastern

Band and...such acts reasonably relate to the

Tribe’s economic welfare. It is a valid govern-

mental function consistent with its fiduciary

relationship with the Tribe, and under the facts

of this case, preempt the State’s regulation. It

follows that the United States, in conjunction

with the Eastern Band, is entitled to regulate

and maintain the fish management program on

the Cherokee Reservation with the interference

of the State.

Coupled with the federal policy of Indian self-

determination, ali of these considerations lead me to the

conclusion that the combined actions of the United States

and the Mescalero Apache Tribe establish in the United

States and the Mescalero Apache Tribe an exclusive

jurisdiction over hunting and fishing on the Mescalero

Apache Reservation and prevent the State of New Mexico

from enforcing its fish and game laws and regulations

against any person, Indian or non-Indian, for acts com-

mitted within the boundaries of the Reservation.

The record indicates that the defendants or their

agents might continue enforcement of New Mexico hunt-

ing and fishing laws against persons hunting and fishing

on the Mescalero Apache Reservation and that if this

46a

occurred the plaintiff would suffer irreparable harm and

stand without a remedy at law. I conclude that a per-

manent injunction against the defendant is warranted. A

judgment and injunction will be entered consistent with

this opinion.

UNITED STATES DISTRICT JUDGE

47a

Treaty With The Apaches, July 1, 1852, 10 Stat. 979 (1852)

Article 1. Said nation or tribe of Indians through

their authorized Chiefs aforesaid do hereby acknowledge

and declare that they are lawfully and exclusively under

the laws, jurisdiction, and government of the United

States of America, and to its power they do hereby submit.

Article 9. Relying confidently upon the justice and

the liberality of the aforesaid government, and anxious to

remove every possible cause that might disturb their peace

and quiet, it is agreed by the aforesaid Apache’s [sic] that

the government of the United States shall at its earliest

convenience designate, settle, and adjust their territorial

boundaries, and pass and execute in their territory such

laws as may be deemed conducive to the prosperity and

happiness of said Indians.

48a

The New Mexico Enabling Act, 36 Stat. 557 (1910)

All right and title... to all lands lying within said

boundaries owned or held by any Indian or Indian tribes

the right or title which shall have been acquired through

or from the United States or any prior sovereignty, and

that until the title of such Indian or Indian tribes shall

have been extinguished the same shall be and remain

subject to the disposition and under the absolute jurisdic-

tion and control of the Congress of the United States.

49a

Indian Reorganization Act of 1934, 25 U.S.C. § 476

§ 476. Organization of Indian tribes; constitution and by -

laws; special election

Any Indian tribe, or tribes, residing on the same

reservation, shall have the right to organize for its com-

mon welfare, and may adopt an appropriate constitution

and bylaws, which shall become effective when ratified by

a majority vote of the adult members of the tribe, or of the

adult Indians residing on such reservation, as the case

may be, at a special election authorized and called by the

Secretary of the Interior under such rules and regulations

as he may prescribe. Such constitution and bylaws, when

ratified as aforesaid and approved by the Secretary of the

Interior, shall be revokable by an election open to the same

voters and conducted in the same manner as hereinabove

provided. Amendments to the constitution and bylaws

may be ratified and approved by the Secretary in the same

manner as the original constitution and bylaws.

In addition to all powers vested in any Indian tribe or

tribal council by existing law, the constitution adopted by

said tribe shall also vest in such tribe or its tribal council

the following rights and powers: To employ legal counsel,

the choice of counsel and fixing of fees to be subject to the

approval of the Secretary of the Interior; to prevent the

sale, disposition, lease, or encumbrance of tribal lands,

interests in lands, or other tribal assets without the

consent of the tribe; and to negotiate with the Federal,

State, and local Governments. The Secretary of the

Interior shall advise such tribe or its tribal council of all

appropriation estimates or Federal projects for the ben-

efit of the tribe prior to the submission of such estimates

to the Office of Management and Budget and the Con-

gress.

50a

Public Law 83-280, as amended, 18 U.S.C. § 1162(b)

(b) Nothing in this section shall authorize the alien-

ation, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any Indian

or any Indian tribe, band, or community that is held in

trust by the United States or is subject to a restriction

against alienation imposed by the United States; or shall

authorize regulation of the use of such property in a

manner inconsistent with any Federal treaty, agreement,

or statute or with any regulation made pursuant thereto;

or shall deprive any Indian or any Indian tribe, band, or

community of any right, privilege, or immunity afforded

under Federal treaty, agreement, or statute with respect

to hunting, trapping, or fishing or the control, licensing,

or regulation thereof.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.