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

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.

Thomas L. Dunigan:

It can also establish terms and conditions for hunting and fishing if it so decides.

The Montana case certainly permits that.

But the Montana case did not suggest that when a tribe enjoys this authority over non-Indian visitors on its reservation, that that authority is exclusive of state authority which normally applies to non-Indians.

Sandra Day O’Connor:

But they could be totally inconsistent.

For instance, I do not know what the circumstances are here, but a tribe might develop the game to such an extent that it can offer people a chance to take five elk whereas the New Mexico requirements might permit someone to take only one, and the two would be quite inconsistent.

Thomas L. Dunigan:

Your Honor, you suggest an extreme case, which is not a part of the factual situation here, but I acknowledge that, built in to a system of concurrent jurisdiction is the possibility of conflicts arising between the two sets of laws.

Our position is that the State of New Mexico as a sovereign continues to have the authority to apply its laws to non-Indians who are not immune from those laws as Indians are and that a reservation does not provide that immunity to a non-Indian unless that non-Indian can claim that he, too, is excused from obeying state law because there is a federal law that preempts those state laws that he has to abide by instead, or that his relationship with the tribe concerns a matter of the internal governmental relations of the tribe and for that reason tribal law alone controls.

But under normal circumstances as the cases that this Court has decided suggests that the normal circumstance is concurrent jurisdiction in those situations when a tribe does enjoy jurisdiction over non-Indians, which is not always the case.

The importance of the Montana case to this case, in fact, is the statement in that case that as a general proposition, and those are the words of this Court, as a general proposition the inherent sovereign authority of an Indian tribe does not extend to non-Indians.

That is the normal proposition.

The Court did articulate and identify circumstances in which an Indian tribe may regulate activities of non-members.

In fact, the Court said that a tribe may regulate through taxation, licensing and other means the activities of non-members who enter into consensual relationships with the tribe through commercial dealings, contracts, leases, and the like.

And that may very well be the case here.

But–

Harry A. Blackmun:

Mr. Dunnigan, perhaps I am mistaken, but I thought the record does disclose conflicts between the state system and the tribal system particularly as to the taking of deer, that does may not be taken under the state regulations, but under the tribal ones a buck and a doe could be taken.

Am I mistaken?

Thomas L. Dunigan:

–Your Honor, no, you are quite correct.

Harry A. Blackmun:

So we do have some very definite conflicts as Justice O’Connor indicated?

Thomas L. Dunigan:

Your Honor, we do have conflicts.

We do not have the particular one that Justice O’Connor identified or any one quite that dramatic, but we do have conflicts in the regulations.

There is no question about that.

If we had not, perhaps this case would not have arisen.

But I am not suggesting, Your Honor, and I did not mean to leave the impression that there are no conflicts in those laws.

We recognize that and we recognize the potential for others.

What we are saying, however, is that the state nevertheless enjoys the right it has as a sovereign to apply its laws to non-members of an Indian tribe unless, again, those laws under the decisions of this Court have been preempted by a federal regulatory scheme or that the sovereign powers of the tribe with reference to the governing of its own members and their internal affairs would be disrupted and frustrated in a given instance.

Harry A. Blackmun:

Well, as I understand your position, you want the state regulation uniformly applied to non-Indians all across the state.

Thomas L. Dunigan:

That is correct, Your Honor.

That is our position.

Harry A. Blackmun:

And that there should not be an exception of a cuna so to speak for the Mescalero reservation?

Thomas L. Dunigan:

That is correct, Your Honor, or for any one of the other 26 Indian reservations or enclaves located in New Mexico which together comprise over 7 million acres of land and 11,000 square miles, approximately 10 percent of the land area of the State of New Mexico and located in virtually every region or part of the state.

John Paul Stevens:

Mr. Dunnigan, it seems to me there might be two different types of problems.

One is the substantive regulation as to how many animals of different kinds you can kill and the like and another the licensing restriction.

What is the state interest in having the right to license people to hunt within the reservation?

Thomas L. Dunigan:

Your Honor, that is in our statement–

John Paul Stevens:

If they had their own licensing system, which I guess they do.

Thomas L. Dunigan:

–I am sorry, Your Honor?

John Paul Stevens:

Assuming the Indians have their own licensing system which I guess they do.

Thomas L. Dunigan:

Yes, Your Honor, they do.

The interest of the state in licensing per se is that the licensing permit system is an essential part of the overall conservation program of the state.

Through the licensing mechanism, the state is able to control the harvest, is able to ascertain also the success ratio of particular hunting seasons and in particular areas, and for that reason, the licensing system in the judgment of the Department of Game and Fish of the state is an essential ingredient in the overall conservation program of the state as well as are the substantive regulations pertaining to the season dates, bag limits, and the like.

Thurgood Marshall:

Am I in error that it is agreed that the Indian licensing procedure is a good one?

Isn’t that admitted?

Thomas L. Dunigan:

Your Honor, we recognize that the tribe has a licensing permit system and have no quarrel with their right to impose one.

The record does indicate that at the present time the ordinances of the tribe maintain a sufficient wildlife population on the reservation to be consistent with wholesome conservation circumstances.

Thurgood Marshall:

So, where does the state get this additional interest?

Thomas L. Dunigan:

Well, the state’s interest, Your Honor, is–

Thurgood Marshall:

Its interest is that they do it… Their signatures on there are better than the Indian’s signature on the license?

Thomas L. Dunigan:

–No, Your Honor, it has nothing to do with whether one licensing system is better than another.

It has to do with the authority of the state to apply its laws to non-Indians anywhere within its borders–

Thurgood Marshall:

You never applied for that under the federal law, did you, the right to jurisdiction over the Indian reservation, did you?

Thomas L. Dunigan:

–The–

Thurgood Marshall:

New Mexico did not.

Is that right?

Thomas L. Dunigan:

–New Mexico is not a Public Law 280 state, no, Your Honor.

Thurgood Marshall:

That is what I mean.

Thomas L. Dunigan:

But in our view–

Thurgood Marshall:

Where did they get it from?

Thomas L. Dunigan:

–I am sorry, Your Honor?

Thurgood Marshall:

Where does New Mexico get it from?

Thomas L. Dunigan:

Well, Your Honor, in our view the Public Law 280 is not the only source of authority for a state to exercise jurisdiction over non-Indians within its borders.

Thurgood Marshall:

My question was where did you get it?

Thomas L. Dunigan:

Our authority over non-Indians, Your Honor, stems from the fact that New Mexico is one of the 50 sovereign states of the union and was admitted to the union on equal protection with other states who have the authority within their borders even on Indian land to apply their laws to non-Indians unless, again, those laws have been preempted by a superior congressional enactment and scheme of regulation or unless in a particular situation the non-Indian is acting in relationship to the tribe so that the internal governmental affairs and social relations of the tribe are intimately involved in that situation.

Thurgood Marshall:

Like in Montana v. United States?

Thomas L. Dunigan:

Yes, Your Honor, and Confederated Tribes of the Coville Indian Reservation v. Washington, and Thomas v. Gay, and Mescalero v. Jones.

Thurgood Marshall:

This case was sent back on Montana and not on any other case.

Thomas L. Dunigan:

That is correct, Your Honor.

This case was here once before pursuant to a petition for certiorari which the state filed after the original decision of the Tenth Circuit.

On its first visit this Court summarily remanded the case to the Tenth Circuit.

This Court vacated the judgment of the Tenth Circuit, remanded the case for reconsideration in light of this Court’s decision in the Montana case.

On remand, however, the Tenth Circuit simply reinstated its original decision and dismissed this Court’s decision in the Montana case as essentially irrelevant to a decision in this case.

And the Tenth Circuit sought to explain its decision in that regard by suggesting that the Montana case involved non-Indian fee lands within the Crow reservation and the question of whether a tribe, being the Crow tribe in that case, could impose or regulate non-Indian hunting and fishing on those non-Indian fee lands whereas this case involves tribal trust lands within a reservation and the authority of a state to regulate non-Indian hunting and fishing within those tribal trust lands.

Now, these differences, of course, do, in fact, exist between these two cases, but that much was evident when this Court originally remanded this case back to the Tenth Circuit in the first place.

So despite these factual differences, the Montana case remains crucial to this case because of one of its underlying principles.

The Montana case, as I indicated earlier, stated, as had this Court in Oliphant v. Suquamish Indian Tribe and Wheeler v. United States, that as a general proposition the inherent authority of a tribe does not extend to non-Indians.

The basis of the Montana case was not that non-Indian fee lands were involved but that non-Indians were involved.

The Court did not say that tribal laws do not apply on non-Indian fee lands.

It said that tribal laws do not apply to non-Indians as a general rule regardless of whether–

Sandra Day O’Connor:

But you have a statute here, 18 U.S.C. 1165 in which Congress has indicated that there is a right of the tribe to regulate the hunting and fishing on the reservation as to non-members.

Thomas L. Dunigan:

–Your Honor, we recognize that 1165 provides a criminal trespass penalty, a federal criminal trespass penalty to be imposed upon a person who enters a reservation without the permission of the tribe for purposes of hunting or fishing.

It does not regulate the conduct of a person on the reservation in terms of his hunting and fishing activity.

It does not recognize, Your Honor, as you suggest that the tribe has the authority to impose regulations that would oust state law if that was the Justice’s suggest.

Sandra Day O’Connor:

Well, certainly the statute unlike, for example, the liquor statute, it does not indicate that the hunting and fishing has to be done in conformity with the laws of the state.

That language is absent from this hunting and fishing statute.

Isn’t that so?

Thomas L. Dunigan:

That is correct, Your Honor.

The penalty imposed by that statute does not require that a state law be violated before it is implemented.

But again it is only a criminal trespass statute as the legislative history clearly suggests.

It does not punish anything other than entry without permission, and for that reason it does not provide the comprehensive regulatory scheme with regard to hunting and fishing that was apparent or present in the Bracker case with reference to the logging and timber operations involved in that case.

The problem with the original decision of the Tenth Circuit in this particular case was that it failed to recognize, either in its original decision or on remand, the general proposition which this Court stated in Montana that non-Indians are normally not subject to tribal law.

In fact, it inverted that principle and started at the threshold with the observation that in the area of game and fish regulation the inherent sovereign powers of a tribe extend to non-members and they are exclusive, in the judgment of the Tenth Circuit.

Thomas L. Dunigan:

In that regard, the Tenth Circuit has fashioned essentially a new rule of law which has no judicial authority to support it whatsoever.

It is certainly squarely in conflict with this Court’s judgment in the Montana case as well as many other cases in this Court, one, for example, being Washington v. Fishing Vessels Association which clearly held that an Indian tribe does not have complete dominion over the taking of any species even though it may have a treaty right to hunt and fish free of state regulation.

So we have here a situation in which the Tenth Circuit has adopted a position in this case which is virtually synonymous with the position advocated by the Solicitor General in Bracker and in the Ramah Navajo case but rejected by this Court to the effect that on-reservation activities affecting a resident tribe should be considered presumptively beyond the reach of state law by operation of the principle of tribal sovereignty.

So that in that situation a state would have to establish its jurisdiction over non-Indians by pointing to a specific congressional delegation of authority to exercise its power, or it would have to show an essential need to regulate in support of a vital state interest.

But this Court said no to that proposition in Bracker and in Ramah and it should say no to the Tenth Circuit’s formulation of the same principle in this case.

As we discussed earlier, the Montana case did recognize that there are situations in which tribal ordinances may be applied to Indians, but in those situations as a general proposition state law remains concurrent with tribal law unless again there has been a federal regulatory scheme based upon congressional legislation and implementing regulations which preempt state law and that requires an examination of the particular context to determine if there is such legislation, if there are such regulations and then a particularized inquiry into the nature of the state, federal, and tribal interests is initiated to determine whether or not in the specific context of a particular case the exercise of state authority would violate that particular regulatory scheme.

In this case, the Tenth Circuit did embark upon that inquiry eventually, choosing not to rest its decision entirely on its novel formulation respecting the exclusive tribal sovereignty over non-Indians where wildlife is concerned.

But the inquiries it made were so distorted by the threshold view that it had adopted that its inquiries really cannot withstand critical examination in light of the authorities articulated by this Court.

For example, in conducting its inquiry with regard to preemption, the Tenth Circuit noted that when a state asserts authority over the conduct of non-Indians what is called for is a particularized inquiry into the nature of the various state, federal, and tribal interests at stake.

What the court below failed to recognize, however, is that before one engages in a particularized inquiry into the nature of the interests at stake, there must be a point of departure, a frame of reference, a context in which to conduct that inquiry.

And that context is the existence of a congressional enactment or set of laws and a set of implementing regulations which establish a comprehensive and pervasive scheme of federal regulation over the activity in question.

As this Court said in the Ramah case, it is federal law reflecting the various federal and tribal interests which must be found in order for state law to be preempted.

One does not simply view the interests at stake, add them up, or weigh them in the abstract.

On the contrary, unless there is federal legislation and implementing regulations, there is no question at all of preemption.

For example, in the White Mountain case this Court considered whether or not the State of Arizona may impose certain taxes on non-Indian logging and timber companies, as we have previously described.

In finding these laws preemptive, this Court said that in that situation the federal government’s regulation of the harvesting of Indian timber is comprehensive.

In the words of the Court, that regulation takes the form of acts of Congress, detailed regulations promulgated by the Secretary of Interior, and day-to-day supervision by the Bureau of Indian Affairs.

In the Ramah case similarly, for example, this Court declared New Mexico’s gross receipts tax as applied to a non-Indian construction company building a school for Indian school children on the reservation to be preempted.

But in that case the Court pointed to the Indian Self-Determination in Education Assistance Act, the Indian Financing Act of 1974 and the regulations promulgated by the Secretary of the Interior thereunder, which among other things gave the BIA wide-ranging authority to monitor the entire construction program.

In that context, this Court found that the imposition of additional state burdens on that federal regulatory scheme would not be permissible, the state interest being simply raising revenue.

But again the preemption analysis begins with an examination of the context in which it arises to determine if there are congressional enactments, laws of the United States, and regulations of the executive branch which establish a federal regulatory scheme with respect to which the state is not permitted to intrude.

Short of that, there is no question of preemption, and state laws prevail with respect to non-Indians on Indian land.

With reference to the question of infringement in this case, it is based really upon two points.

One being the possible financial impairment to the tribe’s revenues as a result of the application of state laws and the claim that implementation of state regulation over non-Indians would create conflicts in the dual regulatory schemes.

As we have indicated, that conflict alone as this Court has indicated in the Coville cigarette tax cases is not a basis for a determination of infringement.

With reference to the claim of financial impairment, factually that has not happened in the case.

In fact, revenue levels have increased both with respect to the hunting and fishing business of the tribe and with respect to the operation of the hunting and fishing program itself.

If the Court please, I would like to reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Fettinger.

George E. Fettinger:

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

We are discussing here today a value generated on an Indian reservation.

The Mescalero Apache Tribe, for example, imported the elk.

It nurtured them.

It protected them.

It abstained from harvesting them for a long period of time, and it now has a herd of elk that can supplement a complete tourism development program on the reservation.

The Inn of the Mountain Gods is a fine resort, part of which is there to assist non-Indian hunters, most of whom are from outside the State of New Mexico, in their endeavors to hunt and to fish on that reservation.

Why did the tribe do this?

They did it to protect the resource, quite obviously.

In this particular case we had an additional reason for doing this and that was to maximize the economic yield to the Mescalero Apache Tribe of their whole tourism program, and in order to provide income for governmental and other economic development purposes on the reservation.

This is not an attempt to market anything resembling a tax break because we are selling cigarettes on that reservation.

Very simply, the quality of the product that is being provided by the tribe in this case far exceeds anything that is available anyplace else in the area.

The facility is better than anything else in the state, and there is no contest on that.

The reason people pay–

Warren E. Burger:

Would it make any difference if it were not?

George E. Fettinger:

–No, sir, but the reason people will pay substantial money for a package hunt on the Mescalero Indian Reservation is because it all fits together.

It is a complete package.

Even if it were not, the value of the elk on that reservation are a product of the tribe, not a product of any state activity, and it is because we can provide trophy elk hunting on the reservation with guides, circumstances that hunters find better than any place else.

It is that reason that this particular enterprise has been economically successful, and in this particular instance we are talking about the elk.

That is not the only issue in the case.

Back in 1966 we, in fact, had 13 elk in the vicinity of the reservation.

It was because of tribal activity that we subsequently imported in 1966-67 about 162 elk from Wyoming, and it is true that the State of New Mexico gave us a permit to import those elk into the state.

The record does not reflect any substantial additional involvement by the State of New Mexico in the development of that herd.

I would like to point out that, on the record, 11 years later we had in excess of 1,200 elk on the reservation.

I might point out to this Court that we have a herd of cattle in the neighborhood of 6,000 head on the reservation.

We have obviously permitted the elk to graze in the same area that could otherwise be occupied by our cattle.

Quite obviously, significant range development has occurred.

We have not reduced the herd of the tribe during the intervening period, and that is an economic decision.

That is forebearance on the part of the tribe in raising cattle on the reservation in order to develop this herd of elk for other purposes to supplement as an economic enterprise on the reservation a total tourism development program.

Incidentally, the State of New Mexico in this case benefits from the activities of the tribe.

George E. Fettinger:

The elks, we cannot keep all of them on the reservation as much as we would like to, and in fact the hunting has been enhanced in the immediate vicinity of the reservation to the benefit of non-Indian hunters who hunt off of the reservation.

That, I think, makes us significantly different than essentially any other case than we have had before this Court.

One other item I would like to point out–

William H. Rehnquist:

Mr. Fettinger, is the hunter going to run into any problems knowing when he leaves the land that is governed by state licensing and going onto the Indian reservation?

George E. Fettinger:

–Mr. Justice Rehnquist, the reservation is one, mountainous terrain to begin with.

It is not flat.

It is essentially fully fenced.

There is one area that goes up Sierra Blanca Mountain, that mountain being 12,004 feet high, there is some portion of that because the reservation line runs just a few feet to the side of the peak.

But other than that the reservation is essentially fully fenced, and we do have signs that indicate this.

We have made a conscientious effort to notify hunters when they are on the reservation and when they leave the reservation.

Incidentally, I might–

Byron R. White:

Aren’t the elk free to leave the reservation?

George E. Fettinger:

–Unfortuntely, we would have to concede that our elk are perfectly healthy and well able to go over a four strand barbed wire fence in one bound.

Byron R. White:

Or through it?

George E. Fettinger:

Hopefully not through it.

It tends to damage the merchandise a little bit, Mr. Justice.

Byron R. White:

Well, they do nevertheless.

George E. Fettinger:

Yes, sir.

They do go through it, and we have seen that unfortunately happen, but, in fact, most of them–

Byron R. White:

Do they roam mostly for food?

George E. Fettinger:

–No, sir.

I think our range conservationists, and I think generally the facts of this case… although in answering your question I will go beyond the facts of the case… we do have adequate winter and summer range on the reservation to accommodate this herd.

However, the nature of the animal is that the grass is always greener.

They do go over the fence, and they are hunted over the fence.

There is no question of that.

But we are not talking about owning these animals on that reservation, and frankly we–

Byron R. White:

What damage to the tribal interests would occur if the state regulation were able to be enforced against non-Indians?

George E. Fettinger:

–Several–

Byron R. White:

That would add another expense, I suppose, to the hunter.

He would have to have a state license, which is not cheap, I do not suppose.

George E. Fettinger:

–No, sir.

The state has a habit of raising their licensing fees just like the tribe does, incidentally.

Byron R. White:

Are a lot of your people from out of state?

George E. Fettinger:

Yes, sir.

Generally speaking–

Byron R. White:

What is the out of state game license in New Mexico for an elk?

George E. Fettinger:

–It runs about $200 plus… no, it went from $300 to $500 with the last session of the legislature, I believe, on some of the exotic animals.

I have–

Byron R. White:

What about elk?

George E. Fettinger:

–Elk, I believe, is in the $250 range.

Byron R. White:

What other damage… I suppose that would be a deterrent.

You might get fewer customers.

George E. Fettinger:

Mr. Justice White, it is not just a matter of the economics.

As Justice O’Connor was pointing out, we have, for example, four different seasons during which you can hunt bull elk.

The reason we have four different seasons is because we employ our tribal members as conservation officers, and we wish to use them more efficiently.

We employ part-time many of the tribal members to provide access control–

Byron R. White:

I suppose you would want to control the number of elk?

George E. Fettinger:

–Sir?

Byron R. White:

I suppose you also want to control the number of elk.

George E. Fettinger:

We are doing very well at controlling the number of elk.

They are multiplying very rapidly.

The herd is very healthy, and we have an adequate stock–

Byron R. White:

If you had only one season a year it might be a little problem.

George E. Fettinger:

–We could have too many elk, I presume, but they conceive that our game management is workmanlike at worst case, so that we do not have that problem.

But to answer your question on the–

Byron R. White:

What would the state do… how would application of the state law to any individual white hunter interfere with your having more than one season?

George E. Fettinger:

–They have a season that they suggest to us by their lawsuit that we must–

Byron R. White:

Any white hunter that wanted to hunt in one of your seasons that did not fall within the state season would be subject to arrest, I guess?

George E. Fettinger:

–Yes, sir.

They have enforced their… when the state says they have enforced their laws and regulations since 1969 as regards the reservation they mean that they have accosted our hunters once they leave the reservation, and they have been–

Byron R. White:

They would arrest people with… who had elk in excess of the bag limits, I suppose.

George E. Fettinger:

–No, sir.

They arrested them when having one elk, on the theory they did not have a New Mexico license at the time, and they have on one occasion stopped a rental vehicle operated by the tribe with elk meat frozen in the back in order to check the names to see that everybody had the appropriate licenses from the state.

That is what started this lawsuit.

Byron R. White:

How large is the reservation?

George E. Fettinger:

Four hundred sixty thousand acres, which is–

Byron R. White:

How many?

George E. Fettinger:

–Four hundred sixty thousand acres.

It is essentially–

William H. Rehnquist:

What is that?

About 1,000 square miles?

800 square miles?

George E. Fettinger:

–I have never worked it out in terms of square miles, Mr. Justice Rehnquist, but–

William H. Rehnquist:

Six forty into 460, yes.

George E. Fettinger:

–Can we do our arithmetic later?

[Laughter]

The fact is that there is only one tract of 160 acres within that that is privately owned and that is over on the side of the mountain.

In addition to that, there is 24 other acres.

Byron R. White:

How many non-Indians live on the reservation?

George E. Fettinger:

Not very many.

Most of the non-tribal members are themselves Indians because they are employees of the BIA.

There is only 14.4 acres that is privately owned within the reservation today, and there are a few non-Indians within that group but not very many.

They are not a problem.

They are not pertinent to the case.

There is no significant number.

John Paul Stevens:

Mr. Fettinger, I am interested in the legal theory that supports your position.

I understand the equities of the case as you describe them, but would the same principle apply if you did a poor job or just an average job of managing your game resources?

George E. Fettinger:

No, sir.

If I might suggest to the Court that I think that the fact that the state has stipulated that the tribe has a workmanlike program for the protection of game animals is significant to this case.

It is something that has been absent in other cases, and I would suggest that perhaps the existence of–

John Paul Stevens:

What if we had a case in which they agreed you handled the elk well, but you did not handle the antelope very well, say, or something like that, that there were some areas where you were superb and some areas in which they regarded you as deficient.

Would the constitutional rule be that you could regulate those where you did a good job but not regulate those were you did a poor job?

George E. Fettinger:

–I might suggest to the Court that the Court has already said that the species, perhaps, is pertinent, and you cannot chase the last steel head into the net theory might be applicable to this sort of a case dealing with an Indian reservation.

If, in fact, you have a comprehensive game program and it is working, then why does the state need to have jurisdiction over the reservation?

John Paul Stevens:

But lots of times lawsuits are not that easy, you know, the facts are in dispute.

I am just wondering is your principle limited to the case in which the state will stipulate that you have a comprehensive and effective–

George E. Fettinger:

No, sir.

There are many points that have been covered in regard to both preemption and in the interference with tribal government.

Both of those series of arguments carry in this particular case because you are talking about the management of the range land on the reservation itself.

You are talking about substituting game animals for cattle, for example.

John Paul Stevens:

–Your theory is not limited to a well managed tribe.

Is it limited to game resources?

Let me ask you, suppose on your resort you wanted to run a gambling table and that is against state law and it was not against tribal law but there was no general harm.

It was well regulated and well policed and well accounted for.

Would you say the tribe would have the right to do that?

George E. Fettinger:

We do not equate this case to the gambling situation for a couple of reasons.

There is also a federal statute that makes it, I believe, a federal felony to possess a gaming device in Indian country which is not ordinarily considered to be–

John Paul Stevens:

Maybe I cannot think of one right away, but some activity that is prohibited by state law, maybe selling liquor on Sunday or after 12 o’clock at night or something like that and the tribe thought, well, they would rather do it differently.

Under your theory of Indian tribal sovereignty, would they be permitted to do that?

George E. Fettinger:

–Unfortunately, I think this Court has generally said that those items are treated independently.

I would suggest to this Court that the jurisdiction of a tribe should be related more to its territory when, in fact, that theory can be reasonably applied.

I do not suggest it where you have 28 percent trust land and 72 percent non-trust land that that can be applied.

But I would suggest that where you have essentially all of the reservation being trust land that the territory of the tribe when it has an operative government operating under, in our case, the Indian Reorganization Act with ordinances, with a superintendent, with a budget approved by the federal government, with an annual ordinance that is approved by the authorized representative of the Secretary of Interior and carries down to the detail of the weight of the bullet, the area in which you will hunt, the price of–

John Paul Stevens:

I am trying to find out really are you relying primarily on a federal preemption theory or an Indian tribal sovereignty theory?

George E. Fettinger:

–It is difficult to separate them because the language even of this Court is that you–

John Paul Stevens:

But analytically they are quite different–

George E. Fettinger:

–will lose against the backdrop of tribal sovereignty.

We like the Tenth Circuit opinion, obviously.

John Paul Stevens:

–Obviously that is true, but I am still not clear on what you legal theory is.

George E. Fettinger:

In answer to your question, we would tend to say we agree with the Tenth Circuit opinion and that is a simple answer to your question.

John Paul Stevens:

That is all you have to help me with?

George E. Fettinger:

That is not all we have to help you with.

We would suggest to you that tribal sovereignty is a basic premise.

There are many pitfalls built into the preemption theory, for example, of this Court.

How… are you not to permit an Indian tribe to be successful?

Preemption implies that the Indian tribe must of necessity go back to the United States government to have them draft a contract on a timber case, to have them go out and supervise the cutting.

How can you reconcile that with the economic development plans of Congress in regard to Indian reservations and self-determination?

John Paul Stevens:

But one of the questions in a case like this is to what extent can an Indian tribe running a commercial organization like this, attracting business from non-Indians, use its ability to grant exemptions from state laws, for example, sell hunting licenses at cut rate prices.

Can it use that as a means of tribal development?

Maybe it can, but isn’t that part of the question?

George E. Fettinger:

Well, one, I would suggest, please, we are not selling hunting licenses at cut rate prices–

John Paul Stevens:

Well, what do you licenses cost?

What are your licenses?

George E. Fettinger:

–Our license packages run as high today… on the record in 1967 were under $2,000 per elk with a package hunt, $800 plus without the package.

In today’s world, you are talking about substantially more than that.

John Paul Stevens:

When you talk about package, do you sell the licenses separately?

George E. Fettinger:

Well, we have a package hunt that includes the room, the meals–

John Paul Stevens:

Do you sell the licenses separately?

George E. Fettinger:

–Yes.

We do.

John Paul Stevens:

What is the cost of a separate license?

George E. Fettinger:

Roughly, on the record, it is approximately $800.

John Paul Stevens:

Eight hundred dollars?

George E. Fettinger:

That is in 1967.

It has gone up from there.

Byron R. White:

That is to hunt anything on the reservation?

George E. Fettinger:

That is the prime.

That is the bull elk.

Byron R. White:

But you can hunt anything else, too?

George E. Fettinger:

No.

George E. Fettinger:

Licenses are per species and there are separate seasons and in backing to the question regarding how does that interfere… how does state regulation interfere–

Byron R. White:

If you want to come on the reservation, and get one elk, it will cost you $800?

George E. Fettinger:

–Yes, sir.

Now more, substantially more.

Byron R. White:

Just for one day?

George E. Fettinger:

Well, the period of time during which you can hunt is not limited to one day.

Byron R. White:

I know, but if I want to come on even for one day and get one elk, it is $800?

George E. Fettinger:

Yes, sir, and we do not have too much difficulty selling those permits.

Now, I assume the state is going to point out that we do not have that difficulty, but that is up to the tribe to manage that.

A moment ago the question was asked how does the state regulation interfere with tribal activity, and there are many different ways that they do this.

We schedule the hunts over different periods of time to supplement the business at the Inn of the Mountain Gods.

We prefer for hunter safety reasons to have fewer hunters on the reservation.

We prefer to control the access to the particular area.

We hire part time tribal employees for assistance to the conservation officers during the hunt.

We prefer to have all of our conservation officers concentrating on one species in one area.

That is all good management.

We have seven full time conservation officers on 460,000 acres of reservation.

That is six tenths of one percent of the area of the State of New Mexico.

Sandra Day O’Connor:

Mr. Fettinger, your time is running out, and like Justice Stevens, I am a little concerned about your legal theory more than I am about the facts.

What in the preemption area are you looking at specifically to constitute the preemption because it is not as comprehensive a regulatory scheme at the federal level as is the case with timber, for example?

George E. Fettinger:

Well, in this particular case, our treaty does contain, and this is all covered in our brief beginning at about page roughly 20 or 22, the treaty that the Mescalero Apaches have provides the wording that we are under the exclusive control of the United States government.

The enabling act in the constitution of the State New Mexico contains the conventional disclaimer.

We also have Public Law 280 that recites that even in a Public Law 280 state you do not have the right to interfere with the rights of the Indians in regard to the control and licensing of wildlife on that reservation.

Our tribal constitution under the Indian Reorganization Act provides specifically for the control of wildlife on the reservation.

Tribal Ordinance No. 77-1, that is a general hunting and fishing ordinance on the reservation.

We also have the annual licensing ordinance on the reservation which spells out in infinite detail, more detail perhaps than the statutes of the State of New Mexico in regard to hunting going down to the weight of the bullet.

Warren E. Burger:

Was this reservation created before New Mexico was a state?

George E. Fettinger:

We have a treaty of 1851.

We have an executive order of 1873, and we do predate the state, which is 1912 for statehood.

The state first started controlling fish and wildlife in 1895, so we well predate the state.

Warren E. Burger:

I have the same difficulty that others on the bench have had in discerning your theory.

I finally concluded between the lines, at least, you were saying that this reservation, 460,000 acres, is Just as independent for the purposes of this case, just as independent of New Mexico as Arizona is independent of New Mexico.

George E. Fettinger:

We would love to have that be the ruling of this Court, of course, sir–

Warren E. Burger:

Subject to the Interior Department control.

George E. Fettinger:

–Yes, sir.

We manage… I think the touchstone is that, yes, we manage the conservation program on the reservation as well as any of the states do.

We have several other items incidentally as a touchstone for our preemption, and they are listed in our brief.

Thank you.

Warren E. Burger:

Mr. Claiborne, would you mind addressing my last question and those of the others on the theory?

Louis F. Claiborne:

Mr. Chief Justice, certainly.

We approach the case on three different bases.

The first as we read the injunction of this Court in the White Mountain Apache case, the test this Court has laid down in judging whether the activity of non-Indians within an Indian reservation is or is not exempted from state law depends on a weighing of the respective interests of the federal government, the state government, and the Indian government.

We have engaged in our brief in that weighing here and find that what is conspicuously lacking is any serious claim of state interest.

There is no allegation that there is a need for state intervention to preserve the species or any other conservation purpose.

There is a concession that the tribal activity and the way in which the program is managed is sound and creates no off-reservation harm.

The only interest which the state asserts is one to manage the wildlife of the entire state in a unit, but that interest is one which cannot prevail for if the tribe, as it is plainly free to do, were to close the reservation to non-Indians and manage the resources for its own benefit, clearly state regulation would not be applicable there.

We cannot appreciate why that management of the same fish and game on the same lands should be a greater interest to the state merely because the hunting and fishing is done by non-Indians rather than by Indians.

Now, so much for our initial approach to the case.

We do assert what this Court has labeled the two independent barriers to state jurisdiction within an Indian reservation, they being an infringement on the right of tribal self-government or tribal sovereignty.

Here we see, particularly with respect to game management, a native resource, a special tribal claim to assert its jurisdiction within what are tribal lands in its territory, the reservation.

That interest here is conspicuous because the tribe itself as a government has determined to exploit its resource, to manage it for conservation purposes, but also for the generation of revenues.

It has developed a comprehensive, and the state concedes, a wholly satisfactory scheme, one which involves the tribal government, employs tribal members, and generates important income for governmental tribal purposes.

Hence, the claim of any infringement with that scheme is a serious one in this case.

We also look to the preemption analysis which this Court has traditionally found to be an independent barrier to state regulation and taxation within a reservation.

Here, to be sure, we do not have the pervasive federal scheme that was present in White Mountain, but we do have a very clear congressional indication, both in 1165 in the exemptions of Public Law 280 in the treaty with the Mescalero and elsewhere of an indication by Congress that the management of wildlife within a reservation is a matter to be left to the tribal authority for the most part.

And here we have no vacuum.

We have the tribe taking up the invitation which Congress has given and developing in a, as I say, satisfactory way a very comprehensive and very pervasive wildlife management scheme which is partly conservationist and partly a business venture.

Warren E. Burger:

If it were being mismanaged badly for any reason, lack of direction at the top, what would be the control of the Department of Interior?

Louis F. Claiborne:

Mr. Chief Justice, it is important that the Department of Interior yearly, annually, approves each of the ordinances enacted by the tribe and in that way assures itself that the management scheme of the tribe is indeed a sound one.

What is more, the BIA and other federal agencies have very importantly collaborated in the beginning of this venture and continue to provide on a daily basis assistance, expertise, and help in overseeing and approving annually the ordinances of the tribe and its program.

Louis F. Claiborne:

So there is that assurance in the supervision of the Department of Interior that the tribe, as New Mexico concedes, are managing this venture and this game in a proper way.

Lewis F. Powell, Jr.:

Mr. Claiborne, are there any other Indian tribes in New Mexico that are regulated in a comparable way to this particular tribe?

Louis F. Claiborne:

Justice Powell, I should know the answer, but I don’t.

I should point–

Lewis F. Powell, Jr.:

What I am leading up to inquire is whether or not the federal government customarily approves the ordinances of tribes around the United States with respect to the taking of game and fish?

Louis F. Claiborne:

–Justice Powell, I think it is right to say that the United States or the Department of Interior customarily approves any tribal ordinance which has an effect on non-Indians within that reservation, whether it is hunting or fishing or any other activity.

Most tribal constitutions provide that any ordinance that impacts on non-Indians within the reservation must be submitted for approval to the Secretary.

So that that is the normal scheme.

Now, a tribe which closed its borders to outsiders, its own ordinance if it had one with respect to hunting and fishing by tribal members, might not similarly be subject to–

Lewis F. Powell, Jr.:

Does the supervision of the federal government go to the extent of ascertaining whether or not their game and fish laws are enforced by the tribe?

Louis F. Claiborne:

–I don’t know that that is so, Justice Powell, but I must say that here there is no suggestion–

Lewis F. Powell, Jr.:

I understand the facts of this case, but I have the same interest that other Justices have expressed.

Your brief states that the ordinances, having been approved by the Secretary, have the force of federal law.

If that is so, isn’t that a complete answer if you are correct with respect to that?

That is preemption 100 percent, isn’t it?

Louis F. Claiborne:

–Well, and that is the aspect in which this case, though different from White Mountain Apache, involves an equally pervasive if not more pervasive scheme of regulation which has the imprimatur of federal approval and continuing federal monitoring.

William H. Rehnquist:

Well, in that case, Mr. Claiborne, it would have been unnecessary for the Court to refer at all in White Mountain Apache to the federal statutory structure if a tribal ordinance which is approved by the Department of the Interior has the force of federal preemptive law.

I mean a lot of our discussion of these cases has been quite unnecessary if that is the principle.

Louis F. Claiborne:

Justice Rehnquist, in White Mountain Apache so far as I am aware there was no tribal comprehensive scheme.

In that instance the regulatory scheme was federal, not tribal, but in other cases as in Fisher and, indeed, as in Mazurie the Court indicated that when a tribal law or ordinance is enacted pursuant to federal authority and with federal approval, it may have the preemptive effect which the federal regulation itself was held to have.

Byron R. White:

That may be so, but you would still have to reach the conclusion that state law was entirely preempted, either that the tribe has occupied the field, so to speak… just preemption would not mean anything more than that the state law is preempted to the extent that it is inconsistent with the tribal ordinance.

It would not mean that they could not, for example, insist on a license.

Louis F. Claiborne:

I invoke the Court’s holdings in White Mountain Apache and in Ramah Navajo to the effect that the preemption test with respect to preemption of state law on Indian reservations is a very different one.

It is not a matter of preempting only what is inconsistent.

It is a rule that state law will be seen to be preempted if the federal authority has either itself or delegated to the tribe sufficient authority.

Here the tribe has fully occupied the field, however–

Byron R. White:

You still have to reach the conclusion that the field has been sufficiently occupied to exclude the state entirely?

Louis F. Claiborne:

–Indeed.

That itself–

Byron R. White:

Even to the extent of not being able to control non-Indians?

Louis F. Claiborne:

–I would submit that there is here plainly no room left for duplicative and conflicting regulation by the State of New Mexico.

Byron R. White:

How about non-conflicting regulations?

Louis F. Claiborne:

Well, to the extent that it is wholly consistent, it may be–

Byron R. White:

How about just a license?

Louis F. Claiborne:

–Well, the licences–

Byron R. White:

And then with the state license they can go on the reservation any time the Indians want–

Louis F. Claiborne:

–The state license is imposing an additional, an important burden in the same way that the tax in White Mountain Apache–

Byron R. White:

–It isn’t inconsistent with any federal statute or any Indian regulation.

Louis F. Claiborne:

–Nor is any tax, as the tax in White Mountain, ever inconsistent.

It is simply an additional burden which so disarranges the scheme that it–

Byron R. White:

They are not taxing the tribe.

Louis F. Claiborne:

–I am sorry, sir?

Byron R. White:

They are not taxing the tribe or Indians.

They are taxing non-Indians.

I mean they are making them buy licenses.

Louis F. Claiborne:

Nor was the tax in White Mountain imposed on Indians but on the non-Indian corporation and so in Ramah it was imposed on the construction company and nevertheless was held to be preempted by federal regulation.

Warren E. Burger:

Do you have anything further, Mr. Dunigan?

You have three minutes remaining.

Thomas L. Dunigan:

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

With reference to Justice Powell’s inquiry, I should point out that there is no federal involvement whatsoever in the enforcement of tribal regulations in the area of hunting and fishing.

Moreover, tribal regulations, tribal ordinances themselves even if they are comprehensive cannot by their own terms oust, or by their own force oust state law applicable to non-Indians, and this Court has so held in Washington v. the Confederated Tribes of the Coville Indian Reservation where the Court said, we are not going to adopt the far-reaching notion that an Indian tribe has the authority as the United States would have to preempt state law merely by enacting a legislative ordinance that pertains to the same conduct that state law purports to regulate.

If this were true, if a tribe were able to do this, then any Indian ordinance passed would… if a tribe were able to do this simply because the federal government does approve its ordinances, if that alone were enough to give it preemptive effect, then any Indian ordinance of any kind adopted by an Indian tribe applicable to non-Indians at least would be preemptive of any state law that applied to the same situation because as the Solicitor General noted, all Indian ordinances that apply to non-Indians have to be approved by the Secretary of the Interior.

If his imprimatur of that regulation is enough to give the Indian ordinance preemptive effect, then we have an open-ended situation that whenever an Indian tribe enacts any ordinance whatsoever state law is preempted.

But again, that–

Byron R. White:

That isn’t consistent with some of our cases, is it?

Thomas L. Dunigan:

–No, the cases of this Court would not permit that at all.

In fact, the Court has held the opposite.

The question is essentially foreclosed.

As this Court said, again in the Coville cigarette tax cases, we are not going to the extreme of adopting a rule of law that would allow Indian ordinances to oust state law as the federal government may do if it enacts this–

Warren E. Burger:

May I ask you a question–

Warren E. Burger:

–Do you not think there is a little difference between the preemption, if that was what you were suggesting, of sales of cigarettes on a reservation, sales to non-Indians and the control and regulation of the wildlife and game?

Don’t you think there is quite a difference?

Thomas L. Dunigan:

–Well, Your Honor, in terms of the question of whether or not a tribe by its actions can preempt state law, there wouldn’t be any difference at all because–

Byron R. White:

You are selling hunting packages–

Thomas L. Dunigan:

–We are selling–

Byron R. White:

–instead of packages of cigarettes?

Thomas L. Dunigan:

–That is correct.

The tribe is selling the privilege of hunting–

Byron R. White:

In competition with other people who want to sell hunting packages?

There is a little difference between a package of cigarettes and a hunting package.

You don’t kill off elks with packages of cigarettes.

It may not be for people who are running competing tourist establishments.

May I ask you a question at the other extreme.

Am I correct in understanding that you would not challenge the right of the Indians themselves to hunt without a state license or to hunt in off season.

What about an Indian himself hunting in a season outside the… under their own regulations?

Thomas L. Dunigan:

–There is absolutely no state restriction applicable to that situation at all.

That would be wholly permissible, and we would not exercise jurisdiction to prevent an Indian within his resident reservation from hunting according to the regulations established by the tribe itself.

Thurgood Marshall:

Did you say wouldn’t or couldn’t?

Do you think the state could do that?

Thomas L. Dunigan:

No, Your Honor, I do not think the state could do that.

In fact, there is a state law… even under state law it could not because there is a state law that prevents it, whatever else may prevent it as well.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.