New Mexico v. Mescalero Apache Tribe

PETITIONER: New Mexico
RESPONDENT: Mescalero Apache Tribe
LOCATION: Residence of Gates

DOCKET NO.: 82-331
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 462 US 324 (1983)
ARGUED: Apr 19, 1983
DECIDED: Jun 13, 1983

ADVOCATES:
George E. Fettinger - on behalf of the Respondent
Louis F. Claiborne - as amicus curiae
Thomas L. Dunigan - on behalf of the Petitioners

Facts of the case

Question

Media for New Mexico v. Mescalero Apache Tribe

Audio Transcription for Oral Argument - April 19, 1983 in New Mexico v. Mescalero Apache Tribe

Warren E. Burger:

We will hear arguments first this morning in New Mexico, et al against the Mescalero Apache Tribe.

Mr. Dunnigan, you may proceed whenever you are ready.

Thomas L. Dunigan:

Mr. Chief Justice, and may it please the Court.

The issue in this case plainly stated is simply does the State of New Mexico have the authority concurrent with the Mescalero Apache Tribe to regulate hunting and fishing by non-Indians on the Mescalero Apache reservation.

The history suggests that it does.

Since New Mexico became a state in 1912, it has had fish and game laws in a state-wide wildlife conservation program.

It has applied its game and fish laws to non-Indians hunting and fishing within all areas of the state during this period of time.

For approximately the last 15 years since the Mescalero Apache Tribe has allowed public hunting on its reservation, the State of New Mexico has applied its game and fish laws to non-Indians who have hunted or fished on that reservation as it has with respect to each of the other 26 Indian reservations or enclaves located in the State of New Mexico.

During this period of time the state has not only enforced its wildlife regulations, but the wildlife on Indian lands has benefitted from the full range of conservation programming that the state has provided over time on a state-wide basis.

In 1977, however, the Mescalero Apache Tribe passed a hunting and fishing ordinance which specified in part that a state hunting and fishing license would no longer be required of any person hunting or fishing on the Mescalero Apache reservation.

Up until that time the Mescalero Tribe had acknowledged in its hunting and fishing brochures that state game and fish licensing regulations and the entire state game and fish wildlife regulation did apply to non-Indians hunting or fishing on the Mescalero Apache reservation.

The passage of the new ordinance in 1977 followed soon after the opening by the tribe of the Inn of the Mountain Gods on the reservation.

The Inn of the Mountain Gods is a deluxe tourist resort featuring a hotel, a lake for fishing, boating and water sports, a golf course, tennis facilities, shooting range, a stable, and various other tourist and convention-related recrecational facilities and activities.

The Inn was opened by the Mescalero Apache Tribe as part of a tourism program organized by the tribe and intended to attract non-Indians onto the reservation and to the Sierra Blanca ski resort, which is a tribal commercial enterprise located adjacent to the reservation.

In connection with the opening of the Inn of the Mountain Gods, the Mescalero Apache Tribe also expanded its hunting and fishing business to include big game animal hunts known as package hunts.

Package hunts include hunting fees, lodging at the Inn of the Mountain Gods, guide service and various other hunter needs.

Warren E. Burger:

Well, would it make any difference, Mr. Dunnigan, how much of the activity the Mescaleros were engaged in, whether it was one resort or a great many, a small amount or a great deal of this hunting?

Thomas L. Dunigan:

No, Your Honor, I don't think that the amount or the size of the commercial enterprise of the tribe has any jurisdictional significance.

Warren E. Burger:

How do you distinguish it from the logging operations, for example?

Thomas L. Dunigan:

Well, Your Honor, the logging operations were conducted by non-Indian companies together with Indian enterprises.

Warren E. Burger:

The Indians could have done it all on their own if they wanted, had they had the equipment and the personnel.

Thomas L. Dunigan:

Yes, Your Honor, I presume that is true.

In that respect there is no difference between the cases.

There is a difference, though, in terms of the federal regulatory scheme that applied in that case, in the White Mountain Apache Tribe v. Bracker case to which you refer as opposed to the one that applies in this case.

For that reason, the cases are distinguishable, not because there is a difference in the commercial enterprise at stake.

Sandra Day O'Connor:

Mr. Dunnigan.

Thomas L. Dunigan:

Yes, Your Honor.

Sandra Day O'Connor:

The Court in Montana v. United States, of course, recognized that an Indian tribe can prohibit non-members from hunting and fishing on the reservation or can allow them and condition that permit as the tribe determines.

Now how do you reconcile what New Mexico is asking for here with that case because it would seem that if the tribe has a right to condition the hunting and fishing as described in Montana, that the right would be meaningless if a state were allowed to apply inconsistent regulations.

Thomas L. Dunigan:

Your Honor, I recognize that the Montana case articulates the principles you have described, and we do not argue that the Mescalero Apache Tribe does not have the right to admit hunters or fisherman if it desires or preclude hunting and fishing if it desires.