942 F. 2d 794 - United States v. C Edwards

MEMORANDUM*

Stanley Edwards was charged under the Lacey Act with transporting across states lines animals taken in violation of state law. The animals were taken on the Crow Indian reservation in Montana. Edwards appeals on the theory that Montana cannot regulate hunting on the reservations and therefore that the animals were not taken in violation of state law. We affirm.

* Edwards, who is neither an Indian nor a member of any Indian tribe, was charged with violating the Lacey Act, 16 U.S.C. §§ 3372(a), 3373(d)(2),1 by transporting across state lines two pronghorn antelopes and one black bear taken in violation of the laws of Montana. Edwards was alleged to have violated Montana law by hunting in a closed season and by hunting without a proper license. See Montana Code Ann. §§ 87-3-104, 87-2-103. The crimes were alleged to have occurred on or about April 1988. The parties agree that the animals were taken while Edwards was hunting on land within the boundaries of the Crow Reservation.

On July 9, 1990, Edwards moved to dismiss on the ground that the State of Montana lacked jurisdiction to regulate hunting by non-Indians on land within the boundaries of the Crow Reservation and therefore that the state law underlying the Lacey Act charges could not apply to Edwards' conduct. The district court denied the motion and Edwards agreed to plead guilty to count 2 in return for the dismissal of count 1. Edwards reserved the right to appeal the issue of the State's jurisdiction. He was sentenced to a fine of $500, placed on probation for two years, and required to repay the government for the legal fees incurred by his court-appointed attorney.

The parties agree that the case most closely on point is New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). In Mescalero, the Mescalero Apache Tribe (Mescalero Tribe) and the Federal Government jointly conducted a comprehensive program to manage wildlife on the reservation. The Mescalero Tribe brought suit to prevent New Mexico from regulating hunting and fishing by non-Indians on the Mescalero reservation. New Mexico agreed that it could not exercise exclusive jurisdiction, but argued that it could exercise concurrent jurisdiction over nonmembers hunting or fishing on the reservation.

The Court held that a state may exercise concurrent jurisdiction over non-Indians hunting or fishing on Indian reservations unless such jurisdiction is pre-empted by the operation of federal law or unlawfully infringes on the right of reservation Indians to make their own laws and be ruled by them. See id. at 324-34 & n. 16. "State jurisdiction is pre-empted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority." Id. at 334 (citation omitted).

The Court found that state regulation of hunting and fishing on Indian reservations implicates "Congress' overriding objective of encouraging tribal self-government and economic development." See id. at 341; see also id. at 335-36 & n. 17.2 This objective is based in part on a recognition of the Tribe's authority to regulate the use by members and nonmembers of the lands and resources on its reservation, including wildlife. Id. at 337 (citing Montana v. United States, 450 U.S. 544, 557 (1981)).3 These interests alone did not preempt concurrent state jurisdiction, however, because the Court found it necessary to examine the tribal regulatory scheme.

The simple fact that there existed a tribal regulatory scheme also was not sufficient to preempt state law. The Court noted the conflict between state and tribal hunting and fishing regulations and analyzed the effect of that conflict on federal and tribal interests. Enforcement of the state regulations, which were in numerous instances more restrictive than the tribal regulations, id. at 329, would have "nullif[ied] the Tribe's authority to control hunting and fishing on the reservation." Id. at 338. Additionally, concurrent state jurisdiction would have frustrated the Tribe's efforts, undertaken through its comprehensive regulatory scheme, id. at 328, to address the special needs of the reservation's wildlife resources. Id. at 339-40. Finally, enforcing more restrictive state regulations would have threatened Congress' "overriding objective" of encouraging tribal economic development because the revenue generated by the Tribe's sale of hunting and fishing licenses would be decreased if state regulations were enforced.

In the present case, the district court found that at the time Edwards hunted on the Crow reservation, the Tribe had repealed its old Fish and Game Code. A new Code had been "approved" by the Tribe, but no regulations had been promulgated under the new Code.4 The court concluded that because there were no tribal regulations in force at the time, state jurisdiction over hunting could not have been preempted.

If there were no regulations in force, the district court's conclusion was correct. As in Mescalero, the simple fact that Congress intends Indians to be able to control their own resources and economic development does not preempt concurrent state jurisdiction where the Indians have not undertaken to regulate hunting and fishing themselves.

Edwards contends, however, that the Crow tribe had not abandoned its regulation of hunting and fishing on the reservation. Section 1 of the new Wildlife Management Code states:

It is intended that the hunting and fishing laws of Montana not be applicable to the territory within the exterior boundaries of the Crow Reservation as to either Tribal members or as to non-Tribal members, unless otherwise enacted by the Crow Tribal Council.

Section 7 states that until changed, "those hunting and fishing seasons presently in effect shall remain in effect." According to Edwards, this meant that until regulations were promulgated to implement the new Code, the previous hunting regulations remained in effect.

Some scholars have read Mescalero as holding that the existence of any tribal regulatory scheme preempts state jurisdiction to enforce even equivalent regulations. See, e.g., Royster & Fausett, Control of the Reservation Environment: Tribal Primacy, Federal Delegation, and the Limits of State Intrusion, 64 Wash.L.Rev. 581, 597-600 & n. 55 (1990). The Court stated that

[c]oncurrent 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.

Mescalero, 462 U.S. at 338.

By itself, this language suggests that once the Tribe takes action to regulate its wildlife resources, even equivalent regulation by the state would infringe on tribal interests, presumably by keeping the tribe from ever making its regulations less restrictive. Although this interpretation appears consistent with Congress' desire to promote tribal self-government, it makes superfluous the Court's discussion of the particular effect of the conflict between New Mexico law and the tribal regulations on federal and tribal interests. See id. at 338-40. This whole discussion was unnecessary if any tribal regulatory scheme automatically preempts state regulation.

We conclude, therefore, that concurrent jurisdiction is preempted only to the extent that the specific state law in question would actually interfere with the relevant federal and tribal interests. If it would not, the state may exercise jurisdiction. If the tribe then alters its regulations, the preemption analysis begins again. Our interpretation is consistent with the Supreme Court's statement in an earlier case that "[e]nactments of the Federal Government passed to protect and guard its Indian wards only affect the operation within the [reservation] of such state laws as conflict with the federal enactments." Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 483 (1976).

In the present case, unlike in Mescalero, there is no conflict between the Indian regulations Edwards alleges to have been in force and the state law being enforced. The old tribal hunting regulations prohibited non-members of the Crow tribe from hunting or fishing on the reservation. Therefore, even if those regulations were in effect when Edwards hunted, there was no substantive conflict between the tribal regulations and state law.

Where there is no conflict between state law and tribal regulations, there is no interference with the federal and tribal interest in tribal self-government, tribal regulation of wildlife resources, or development of tribal independence. State regulations that simply mirror those of the Tribe do not interfere with the Tribe's authority to control hunting or to manage tribal resources. Nor do such regulations discourage activity the Tribe is attempting to encourage.

The judgment of the district court is AFFIRMED.