Mescalero Apache Tribe v. State of N. M., 78-1790
| Decision Date | 26 April 1982 |
| Docket Number | No. 78-1790,78-1790 |
| Citation | 677 F.2d 55 |
| Parties | MESCALERO APACHE TRIBE, Plaintiff-Appellee, v. STATE OF NEW MEXICO and Harold F. Olson, Individually and as Director of the New Mexico Department of Game and Fish, or his successors in office, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jeff Bingaman, Atty. Gen., Thomas L. Dunigan, Deputy Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, N. M., for defendants-appellants.
George E. Fettinger and Kim Jerome Gottschalk of Fettinger & Bloom, Alamogordo, N. M., for plaintiff-appellee.
Carol E. Dinkins, Asst. Atty. Gen., Robert L. Klarquist and Edward J. Shawaker, Dept. of Justice, Washington, D. C., for the U. S. as amicus curiae.
B. Reid Haltom and Marcia L. Green of Nordhaus, Haltom & Taylor, Albuquerque, N. M., for the Jicarilla Apache Tribe as amicus curiae.
Before DOYLE, BREITENSTEIN and McKAY, Circuit Judges.
In Mescalero Apache Tribe v. New Mexico, 630 F.2d 724 (10th Cir. 1980), this court affirmed an order of the district court enjoining the State of New Mexico from enforcing its game laws against non-Indians who hunt and fish within the boundaries of the Mescalero Apache Indian Reservation. Subsequently the United States Supreme Court granted the State's petition for a writ of certiorari, vacated this court's judgment, and remanded the case for further consideration by this court in light of Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981).
While this court was considering Mescalero v. New Mexico on remand, the Supreme Court decided Merrion v. Jicarilla Apache Tribe, --- U.S. ----, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982), in which the Court affirmed the authority of an Indian tribe to impose a severance tax on non-Indian mining activities on the Tribe's reservation. In Merrion the Court held that "the Tribe's authority to tax non-Indians who conduct business on the reservation ... is an inherent power necessary to tribal self-government and territorial management." 102 S.Ct. at 903. In the Court's opinion, that authority "derives from the tribe's general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services," as well as from the tribe's authority to exclude non-Indians from tribal land. Id. at 901. The Court's decision in Merrion v. Jicarilla convinces us that Montana v. United States does not dictate a result different from that originally reached by this court in Mescalero v. New Mexico. Montana v. United States deals with "the sources and scope of the power of (the Crow) Indian (T)ribe to regulate fishing and hunting by non-Indians on lands within its reservation owned in fee simple by non-Indians. " 450 U.S. at 547, 101 S.Ct. at 1249 (emphasis added). Mescalero v. New Mexico, however, involves the question of whether a state has the authority to regulate non-Indian hunting on Indian-owned land within a reservation. 1 In contrast to Montana v....
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