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The sovereignty retained by Indian tribes includes the power of regulating their internal and social relations. A tribe's power to prescribe the conduct of tribal members has never been doubted, and absent governing Acts of Congress, a state may not act in a manner that infringes on the right of reservation Indians to make their own laws and be ruled by them.
With extensive federal assistance and supervision, the Mescalero Apache Tribe established a comprehensive scheme for managing the reservation's fish and wildlife resources. Federally approved tribal ordinances regulated in detail the conditions under which both members of the Tribe and nonmembers could hunt and fish. However, New Mexico sought to apply its own hunting and fishing laws to nonmembers on the reservation land owned by the Tribe, the state's laws conflicting with and at times being more restrictive than the tribal regulations. New Mexico enforced its regulations by arresting non-Indian hunters for illegal possession of game killed on the reservation in accordance with tribal ordinances, but not in accordance with state hunting regulations. The Tribe filed suit against the state, and the director of the state department responsible for enforcing its hunting and fishing laws, in the United States District Court for the District of New Mexico, seeking to prevent the state from regulating on-reservation hunting or fishing by tribal members or nonmembers. The District Court ruled in favor of the Tribe, and granted declaratory and injunctive relief against the enforcement of the state's hunting and fishing laws against any person for hunting and fishing activities conducted on the reservation. The United States Court of Appeals for the Tenth Circuit affirmed, and after having its judgment vacated and remanded by the United States Supreme Court, the Court of Appeals adhered to its earlier decision.
May New Mexico superimpose its own hunting and fishing regulations on the Mescalero Apache Tribe’s regulatory scheme?
It was beyond doubt that the Mescalero Apache Tribe lawfully exercises substantial control over the lands and resources of its reservation, including its wildlife. As conceded by New Mexico, the sovereignty retained by the Tribe under the Treaty of 1852 includes its right to regulate the use of its resources by members as well as nonmembers. In Montana v. United States, the Court specifically recognized that tribes in general retain this authority. It was important to emphasize that concurrent jurisdiction would effectively nullify the Tribe's authority to control hunting and fishing on the reservation. Concurrent jurisdiction would empower New Mexico wholly to supplant tribal regulations. The State would be able to dictate the terms on which nonmembers are permitted to utilize the reservation's resources. The Tribe would thus exercise its authority over the reservation only at the sufferance of the State. The tribal authority to regulate hunting and fishing by nonmembers, which has been repeatedly confirmed by federal treaties and laws and which we explicitly recognized in Montana v. United States would have a rather hollow ring if tribal authority amounted to no more than this. Furthermore, the exercise of concurrent state jurisdiction in this case would completely "disturb and disarrange," the comprehensive scheme of federal and tribal management established pursuant to federal law. As described, federal law required the Secretary to review each of the Tribe's hunting and fishing ordinances. Those ordinances were based on the recommendations made by a federal range conservationist employed by the Bureau of Indian Affairs. Concurrent state jurisdiction would supplant this regulatory scheme with an inconsistent dual system: members would be governed by tribal ordinances, while nonmembers would be regulated by general state hunting and fishing laws. This could severely hinder the ability of the Tribe to conduct a sound management program. Tribal ordinances reflect the specific needs of the reservation by establishing the optimal level of hunting and fishing that should occur, not simply a maximum level that should not be exceeded. State laws in contrast are based on considerations not necessarily relevant to, and possibly hostile to, the needs of the reservation. The assertion of concurrent jurisdiction by New Mexico not only would threaten to disrupt the federal and tribal regulatory scheme, but also would threaten Congress' overriding objective of encouraging tribal self-government and economic development.
The State failed to "identify any regulatory function or service . . . that would justify" the assertion of concurrent regulatory authority. The hunting and fishing permitted by the Tribe occur entirely on the reservation. The fish and wildlife resources were either native to the reservation or were created by the joint efforts of the Tribe and the Federal Government. New Mexico does not contribute in any significant respect to the maintenance of these resources, and can point to no other "governmental functions it provides," in connection with hunting and fishing on the reservation by nonmembers that would justify the assertion of its authority. The State also could not point to any off-reservation effects that warrant state intervention. Some species of game never leave tribal lands, and the State pointed to no specific interest concerning those that occasionally do. The Court recognized that New Mexico may be deprived of the sale of state licenses to nonmembers who hunt and fish on the reservation, as well as some federal matching funds calculated in part on the basis of the number of state licenses sold. However, any financial interest the State might have in this case was simply insufficient to justify the assertion of concurrent jurisdiction. The loss of revenues to the State was likely to be insubstantial given the small numbers of persons who purchase tribal hunting licenses. Moreover, unlike Confederated Tribes, supra, and Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976), the activity involved here concerned value generated on the reservation by the Tribe. Finally, as already noted, the State has pointed to no services it has performed in connection with hunting and fishing by nonmembers which justify imposing a tax in the form of a hunting and fishing license, and its general desire to obtain revenues was simply inadequate to justify the assertion of concurrent jurisdiction in this case.