Confederated Tribes of the Colville Indian Reservation v. Washington

CHOY, Circuit Judge:

The State of Washington appeals from a district court declaratory judgment that the State is without jurisdiction to regulate or control fishing by non-Indians on the Col-ville Indian Reservation. Appellees are the Confederated Tribes of the Colville Indian Reservation (the Tribes), a federally recognized tribal organization. We reverse.

1. Statement of the Case

The Tribes and the United States Fish and Wild Life Service have sponsored a program to bolster sports fishing in reservation waters. The Fish and Wild Life Service stocks the lakes and tribal police regulate and control fishing activity. The State has contributed research and survey materials to the program.

Tribal regulations require that all persons fishing in reservation waters purchase a tribal fishing license. The State also requires a license for non-Indians fishing in reservation waters. Non-Indians are thus required to purchase two licenses.

In June, 1975, state officers entered reservation lands and issued four citations to non-Indians who possessed tribal but not state fishing licenses. Tribal police at the scene contested the authority of state officers to issue the citations. After issuing the citations, the state officers departed without further incident.

On June 25,1975, the Tribes filed suit for injunctive¹ and declaratory relief. The district court held that the State regulation of fishing by non-Indians on the reservation had been preempted under the Supremacy Clause.² It observed that applicable federal law “create[s] a situation of dual state-federal jurisdiction over the Colville Reservation.” 412 F.Supp. 651, 655 (E.D.Wash. 1976). It then noted that Congress had delegated to the Tribes the right to regulate fishing on the reservation and “the exercise of such delegated powers has the same force and effect under the Supremacy Clause as if exercised by the federal government directly.” Id. The court then stated the applicable law of preemption:

Whenever dual jurisdiction exists between a state and the federal government, the state may regulate only to an extent and in a manner that is consistent with federal regulation. Therefore, where the federal regulatory scheme is not intended to be pervasive and all-inclusive, the state is free to regulate the same area in a manner that does not conflict or interfere with federal regulation. [Citations omitted.] But where federal regulations provides a comprehensive scheme in a given area, the state’s power to regulate is preempted .

Id. The district court concluded that because the Tribes had adopted a “comprehensive regulatory scheme ... to control and utilize the tribal fisheries resources,” state regulation was preempted. Id. at 656.³

II. Manifestation of Preemptive Intent

We believe that the district court erred in concluding that tribal regulations preempted state regulation. The Supreme Court has indicated that the purpose of the Supremacy Clause is to invalidate those state laws that stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941) (footnotes omitted). Accord, Jones v. Rath Packing Co., 430 U.S. 519, 526, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). See Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 483, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) (quoting United States v. McGowan, 302 U.S. 535, 539, 58 S.Ct. 286, 288, 82 L.Ed. 410 (1938): “Enactments of the federal government passed to protect and guard its Indian wards only affect the operation ... of such state laws as conflict with the federal enactments.”) The Court has also noted that complementary state and federal programs are often intended and should not be lightly invalidated:

If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed.

New York Department of Social Services v. Dublino, 413 U.S. 405, 413, 93 S.Ct. 2507, 2513, 37 L.Ed.2d 688 (1973) (quoting Schwartz v. Texas, 344 U.S. 199, 202-03, 73 S.Ct. 232, 97 L.Ed. 231 (1952)).

In the instant case the district court acknowledged that Congress envisioned a “situation of dual state-federal jurisdiction over the Colville Reservation,” thereby indicating that Congress did not find that state jurisdiction would necessarily impede congressional objectives. 412 F.Supp. at 655. The district court found nonetheless that the tribal government’s “comprehensive” regulatory scheme preempted state regulation.

In creating that system, however, the tribal government explicitly acknowledged that state jurisdiction would not constitute an obstacle to its efforts. Instead, the tribal government sought to aid enforcement of state law upon the reservation. For example, while the Tribal Hunting and Fishing Code specifies that where tribal law is more restrictive than state law the tribal law shall prevail, it does not specify that state law should never apply. See Tribal Hunting and Fishing Code § 3(c). Moreover, tribal enactments appear to place their imprimatur on state restrictions. Thus, resolutions of the tribal governing council provide that state definition of fishable waters shall limit tribal permits and that the tribal “[f]ishing season shall be identical to the Washington State Fishing Season.” Resolutions 1971-516; 1973-158. The tribal governing board has also noted that tribal permits have been issued with the provisions that

[t]he permittee must have appropriate State of Washington Hunting and Fishing license and must comply with State seasons, species and limitations as required by State law.

Resolution 1971-516. And the 1974 tribal permit reads in part:

IN ADDITION TO OUR PERMIT, THE STATE OF WASHINGTON REQUIRES STATE FISHING PERMITS TO FISH ON ALL LAKES, RIVERS AND STREAMS WITHIN THE EXTERIOR BOUNDARIES OF THE STATE OF WASHINGTON.

(Emphasis in original.)

This scheme of joint state-tribal regulation’ is perhaps most clearly articulated in a tribal resolution regarding hunting on the reservation, enacted pursuant to the same tribal constitutional provisions as are the fishing regulations. Though questioning the State’s authority to regulate hunting on the reservation, the resolution requested that the State note on its hunting permits that Colville land was excluded, adding:

[T]he violation of the “Closed Area-Col-ville Indian Reservation” provision of the hunting permit [should] be handled in applicable state courts under state law.

Resolution 1971-365.

We conclude that the tribal council’s own scheme permits the “situation of dual state-federal jurisdiction” that the district court found Congress had intended.⁴

The question we decide is a very narrow one. In its opening brief the State of Washington says:

The state has not disputed, although fishing rights are not mentioned in the 1872 Executive Order creating the Col-ville Reservation, that such rights are there by implication. The state historically has not attempted to regulate enrolled tribal members in the exercise of their fishing right on reservation and does not seek to exercise such power in this appeal.

The Colville Tribe, as present occupiers of the reservation can charge non-Indians for the privilege of going upon Indian lands to fish much like any normal private owner or tenant. Failure to pay or gain permission before access is trespass. 18 U.S.C. § 1165 codifies this normal trespass rule. Likewise, the tribe can apply more restrictive tribal regulations on non-Indians or even close all Indian lands within the reservation entirely, like [sic] any other private land occupier might do.

The foregoing concessions by the State are in line with our holding in Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 410-11 (9th Cir. 1976).

The only authority claimed by the State is to impose upon non-Indians who wish to fish upon the reservation its licensing requirements and such of its statutes and regulations as impose restrictions equal to or more restrictive than those that the Tribes apply to both Indians and non-Indians who fish on the reservation. The State does not claim that it can authorize fishing or fishing practices by non-Indians on the reservation that are prohibited by the Tribes’ regulations.

We need not decide now whether tribal efforts if made to preempt the State would be consistent with congressional intent,⁵ or whether such efforts, if consistent with congressional goals, would preempt state regulation.⁶ We hold only that we cannot find a “clear manifestation” of congressional or tribal intent to preempt state regulation, or that state regulation presents an obstacle to achieving federal policy.

REVERSED.

1 . The district court refused to grant injunctive relief because there was no showing of a threat of future irreparable harm from state actions. 412 F.Supp. at 656. This decision has not been appealed.

2 . U.S.Const. art. VI, cl. 2.

3 . Because we conclude infra that the tribal council has not made a “clear manifestation” of intent to preempt or that state regulation constitutes an obstacle to accomplishing federal purposes, we need not consider if “the exercise of such delegated powers has the same force and effect under the Supremacy Clause as if exercised by the federal government directly.” 412 F.Supp. at 655.

4 . On May 9, 1972, Judge Albert Orr of the Colville Confederated Tribes wrote a letter to Robert Ford, a Wildlife Agent for the State of Washington, which read in part:

Non members of the Colville Tribes desiring to hunt or fish on the Colville Reservation must comply with all applicable state laws, in addition to all ordinances of the Colville Tribes.

[If] the subject is not a member he does not have the priviledges [sic] of enrolled members. And so, at this time he is under the jurisdiction of the State.

5 . The filing of the instant lawsuit may presage a change in tribal policy. But it would be inconsistent with the Supreme Court’s teaching that “federal supremacy is not lightly to be presumed” in the absence of “a clear manifestation of intention to do so” for us to base preemption on a prediction of what attitude the filing of a lawsuit may suggest. See New York Dep’t of Social Serv. v. Dublino, 413 U.S. 405, 413, 415, 93 S.Ct. 2507, 2513, 37 L.Ed.2d 688 (1973); Schwartz v. Texas, 344 U.S. 199, 202-03, 73 S.Ct. 232, 97 L.Ed. 231 (1952). The dissent argues that the Tribes’ statements may be interpreted as calling for preemption. But given that, as noted supra, these statements also suggest tribal acknowledgment of the “situation of dual state-federal jurisdiction” Congress intended, we do not believe that the dissent establishes “a clear manifestation of intention” to preempt. Accordingly, we cannot presume preemption.

6 . Compare Confederated Tribes of the Colville Indian Reservation v. Washington, 446 F.Supp. 1339, 1360-62 (E.D.Wash.1978) (three judge court; majority opinion), cert. granted, - U. S. -, 99 S.Ct. 1210, 59 L.Ed.2d 452 (1979), with id. at 1374-77 (Kilkenny, C. J., concurring and dissenting).