Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Com'n

• Decision Date: 30 November 1978
• Docket Number: No. 76-2161,76-2161
• Citation: 588 F.2d 75
• Parties: 9 Envtl. L. Rep. 20,106 EASTERN BAND OF CHEROKEE INDIANS, Appellee, v. NORTH CAROLINA WILDLIFE RESOURCES COMMISSION, Clyde P. Patton, Executive Director, Appellant, and State of North Carolina Department of Natural and Economic Resources, George Little, Secretary, Defendants, International Association of Fish and Wildlife Agencies, Amicus, United States of America, Amicus.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 75

588 F.2d 75

9 Envtl. L. Rep. 20,106

EASTERN BAND OF CHEROKEE INDIANS, Appellee, v. NORTH CAROLINA WILDLIFE RESOURCES COMMISSION, Clyde P Patton, Executive Director, Appellant and State of North Carolina Department of Natural and Economic Resources, George Little, Secretary, Defendants International Association of Fish and Wildlife Agencies Amicus, United States of America, Amicus.

No. 76-2161.

United States Court of Appeals, Fourth Circuit.

Argued April 6, 1978.

Decided Nov. 30, 1978.

John A. Powell, Asheville, N. C. (Bruce A. Elmore, Asheville, N. C., Millard Rich, Raleigh, N. C., on brief), for appellant.

Daniel H. Israel, Boulder, Colo. (Arlinda Locklear, Native American Rights Fund, Washington, D. C., Ben Bridgers, Holt, Haire & Bridgers, Sylva, N. C., Sally N. Willett, Native American Rights Fund, Boulder, Colo., on brief), for appellee.

Edward J. Shawaker, Atty., Dept. of Justice, Washington, D. C. (Peter R. Taft, Asst. Atty. Gen. and Edmund B. Clark, Atty., Dept. of Justice, Washington, D. C., on brief), for United States as amicus curiae.

Paul A. Lenzini, Chapman, Gadsby, Hannah & Duff, Washington, D. C., on brief, for amicus curiae International Association of Fish and Wildlife Agencies.

Before HAYNSWORTH, Chief Judge, and LAY ^* and RUSSELL, Circuit judges.

HAYNSWORTH, Chief Judge:

In the district court, the Eastern Band of Cherokee Indians obtained a declaratory judgment that North Carolina may not enforce its fishing licensing laws with respect to non-Indians fishing for trout in streams on the Band's reservation. North Carolina has appealed, and we affirm.

The history of the status of the Eastern Band of Cherokee Indians and of their reservation, the Qualla Boundary, sufficiently appears in earlier opinions. ¹

Before 1965 the Band established a Fish and Game Management Enterprise, the primary purpose of which was to regulate sport fishing by persons not members of the Band. The Band and many of its members are financially dependent upon income derived from tourism. Camping and sport fishing draw many visitors to the reservation each summer. The Band charges each non-member a fee for fishing in its streams, and these fees are revenues for the Band's treasury. Moreover, visitors who come to fish spend money with other members of the Band who run shops, restaurants and other commercial enterprises.

In January 1965 the Band and the United States Department of the Interior entered into an agreement under which the United States has stocked streams on the reservation with trout large enough to attract fishermen. In recent years, fish released weekly during the tourist season have aggregated more than 200,000 each year.

The 1965 agreement provided that a non-member adult would be required to have a North Carolina fishing license, but that provision was expressly deleted in a new agreement of June 7, 1976. In that year, North Carolina had increased its fishing license fee and eliminated one-day permits. The result was that a prospective fisherman was required to buy a state fishing license for $5.50. The Band set its own fee at only $2.00, and the testimony showed that the combined fee of $7.50 for fishing permits for one day was a substantial deterrent to prospective fishermen. Obviously if the state fishing license fee was inapplicable, the Band could very substantially increase its revenues from its own fishing permits by charging substantially more than $2.00 per person.

North Carolina's continued insistence upon enforcement of its fishing licensing laws led to the commencement of this action, and a declaratory judgment in favor of the Band.

Questions of conflicting tribal-state jurisdiction are no longer resolved by automatic application of the tribal sovereignty doctrine enunciated by Mr. Chief Justice Marshall in Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832), and most controversies are settled by reliance on federal preemption principles. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); McClanahan v. Arizona State Tax Comm'n,411 U.S. 164, 173, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); See Bryan v. Itasca County, 426 U.S. 373, 376 n.2, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976). Abrogation of the Worcester rule of complete sovereignty means states may regulate reservation Indians and non-Indians in certain situations. Absent acts of Congress or strong federal policies indicating a desire to exclude state regulation, inquiry should be directed to the right of reservation Indians to make their own laws and to govern themselves. State action which substantially impinges upon that right is impermissible. Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). Under Williams, state regulatory laws may apply to tribal regulations unless their application would frustrate tribal self-government or impair a right granted or reserved by federal law. See Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 482-83, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); Mescalero Apache Tribe v. Jones, supra; McClanahan v. Arizona State Tax Comm'n, supra; Kennerly v. District Court, 400 U.S. 423, 426-27, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971); Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 686-87 and n.3, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965); Organized Village of Kake v. Egan, 369 U.S. 60, 67-68, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962).

We find enforcement of North Carolina's license requirement against non-Indian fishermen on the tribe's reservation violates both parts of the Williams preemption test. For over a decade the United States has subsidized the tribe's sport fishing program by stocking its waters with trout raised by the Department of the Interior. ² The government supplies the fish and necessary personnel for the ostensible purpose of assisting the tribe's commercial fishing program which is aimed at attracting non-Indian fishermen to visit the reservation. This governmental assistance bolsters the Band's economic well being, and is consistent with the United States' trust obligations toward Indian tribes. See Morton v. Mancani, 417 U.S. 535, 541, 552-55, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). The Band has long been the beneficiary of governmental aid, and this program is only one aspect of the government's help. See United States v. Wright, supra, at 304-312.

The Band has gained much from this assistance. It will gain much more if prospective fishermen not already licensed by North Carolina are not required to purchase North Carolina licenses. In contrast, North Carolina has no perceivable interest in reservation fishing. The fish are hatched and raised to maturity by the federal government and placed in the streams of the reservation by federal agents. They are placed in the streams in a cooperative endeavor to provide the Band with a commercial fishing resource. There is no endeavor to conserve the fish or to protect the waters as natural spawning streams. The trout are simply placed into the streams for the purpose of luring sport fishermen to the economic advantage of the Band and its members. We conclude that the strong federal policy supporting the Band's fishing program and the significant federal efforts sustaining it demonstrate an intention to preclude state regulation of non-member fishing on the Band's reservation.

If we were required to reach the second part of the...