American Indian Law Deskbook

By Hardy Myers; Clay Smith | Go to book overview

Chapter 9
Fish and Wildlife Regulation

Indian hunting and fishing issues arise in a wide variety of contexts. Individual tribal members take fish and wildlife inside and outside Indian reservation boundaries, often raising questions of whether state, tribal, and federal laws apply to their actions. Nonmembers also take fish and wildlife in a variety of locations, raising similar questions. Frequently, moreover, the several governments serve different constituencies with equally different interests—a fact that may lead to inconsistent policies concerning conservation and harvest management.

Organizing the mix of constitutional, treaty, statutory, and common law considerations that attend resolution of fish and wildlife issues in an Indian law context can be approached in various ways. From a practitioner's perspective, however, the key concerns typically are where the regulated activity takes place—i.e., whether in or outside of Indian country—and whether federal statutory or treaty issues exist. The analysis in this chapter is structured with those concerns principally in mind. It begins with an overview of core constitutional principles that inform much of what follows.


I. CONSTITUTIONAL FRAMEWORK

Under the constitutional framework of the United States, the federal government and the states exercise concurrent, but unequal, authority. 1 States have general police powers, while the federal government has only those powers enumerated in the United States Constitution. 2 Included within the states' police powers is the authority to regulate human activity with respect to fish and wildlife within state borders, limited only by the federal and state constitutions. 3 The United States may regulate such relationships where they

____________________
1
E.g., Printz v. United States, 521 U.S. 898, 918—20 (1997).
2
E.g., United States v. Lopez, 514 U.S. 549, 552 (1995).
3
E.g., Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 386 (1978); Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 287—88 (1977) (Rehnquist, J., concurring in part); Kleppe v. New Mexico, 426 U.S. 529, 545 (1976); Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 426 (1936); Lacoste v. Louisiana Dep't of Conservation, 263 U.S. 545, 549 (1924); New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 39 (1908); Geer v. Connecticut, 161 U.S. 519, 528—29, 534 (1896); see also Hughes v. Oklahoma, 441 U.S. 322, 338—39 (1979); Toomer v. Witsell, 334 U.S. 385, 393—94, 402 (1948); Sohappy v. Smith, 302 F. Supp. 899, 908 (D. Or. 1969). 307

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