# Petition — New Mexico v. Mescalero Apache Tribe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0782%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 1036 ## 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, v. 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 so 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- Se 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 iV 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 © Pe viacicaiccdeavhcncictabilacedradelidcinaaleieucbanmemneds 20 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 0 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, V. 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, 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. 3 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. 4 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). 5 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 6 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 7 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. 8 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. 9 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. 10 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 12 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 13 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 14 “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 15 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 16 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. 17 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. 18 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), 19 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. 20 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. 21 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 la 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. 2a 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. 3a 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). 4a 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. 5a 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. 6a 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. Ta 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 8a 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. 9a 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 — - Neeeeeeeeeeeeeeeeeeeeeeeeee eee eeeee ————eeee_ ee eeeeseererewOwWm=_—E__wwoaaaaaase 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 reservat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0782%3A1. Public record. Not legal advice.