dissenting.
In my view, the position advanced by the United States as an amicus curiae is the correct one. The United States asserts that the district court improperly interpreted the second Montana exception to require an extremely strong showing that tribal regulation of non-Indian conduct on the taken lands— specifically conduct relative to hunting and fishing by non-Indians — is necessary to protect tribal welfare. The proper approach must include an analysis of whether non-Indian conduct on the taken lands has a “direct effect” on the Tribe’s political or economic health or welfare.
The Montana exception at issue states that “[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana v. United States, 450 U.S. 544, 566, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981), quoted in South Dakota v. Bourland, — U.S. -, -, 113 S.Ct. 2309, 2320, 124 L.Ed.2d 606 (1993) (emphasis added). The district court recited examples of conduct that affected the Tribe. The court found that “[d]eer harvested by nonmember hunters on the taken area and the nonmember fee lands does reduce the amount of deer available to tribal members.” South Dakota v. Ducheneaux, Civ. 88-3049, slip op. at 11 (D.S.D. Aug. 22, 1990). It also found that nonmembers of the Tribe “may have harassed cattle grazing on the taken area or on tribal lands, failed to close pasture gates, or let down wires on fences.” Id. at 12-13. The district court thus recognized that non-Indian conduct had affected the Tribe, yet it failed to produce any analysis of whether such conduct satisfied the “direct effect” prong of the Montana test.
In its analysis of the second Montana exception, the district court found no “threat” to the Tribe from the conduct of non-Indians who hunt and fish on the taken lands, see id., but did not consider the other half of the Montana inquiry to see whether such conduct had a “direct effect” on the Tribe’s political integrity, economic security, or health or welfare. Instead the court framed the test to allow the Tribe to exercise civil authority over non-Indian hunting and fishing activities “only if that conduct ‘imperils’ ‘significant tribal interests.’” Id. at 52-53 (quoting Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 431, 109 S.Ct. 2994, 3008, 106 L.Ed.2d 343 (1989)) (emphasis added). Proceeding from this stringent standard, the district court concluded that non-Indian conduct with respect to hunting and fishing “has not been so extreme and pervasive as to warrant extraordinary enforcement efforts by state or tribal game officers.” Duche-neaux, slip op. at 12-13 (emphasis added).
The district court erred in applying the higher standard articulated in the Brendale plurality opinion. The second Montana exception clearly covers conduct that threatens or has a direct effect on the Tribe. I see nothing in the Supreme Court’s Bourland decision, which remanded this case, to indicate that Brendale altered the inquiry under Montana. Indeed, the Court in Bourland quoted the exact language of the Montana exception. The majority avoids having to decide whether Brendale modified the second Montana exception in our case by concluding *872that the district court’s findings were not clearly erroneous even as measured by the less rigid Montana standard. See supra at 870 n. 4. I disagree.
The majority concludes that “the District Court’s factual finding set forth in its memorandum opinion — that non-Indian conduct on the taken land, relative to hunting and fishing, neither threatens nor has a direct effect on the political integrity, the economic security, or the health or welfare of the Tribe — is not clearly erroneous.” Id. at 870. But in fact the district court never analyzed whether conduct by non-Indians had a “direct effect” on the Tribe and made no finding on that issue. The majority concludes that incidents such as the killing of deer by non-Indians and interference with the Tribe’s cattle grazing rights “undeniably are vexatious to the individual Indians affected, but ... do not amount to a direct effect on ... the Tribe as a whole.” Id. at 870.
The district court found that the “Tribe has always asserted jurisdiction over all hunting and fishing activities on the reservation, including nonmember fee lands and the taken area,” that the “Tribe has not acquiesced to any State assertion of jurisdiction over hunting and fishing activities on the reservation,” and that since the 1930s the Tribe has “required nonmembers to obtain a tribal permit to hunt or fish on the reservation.” Ducheneaux, slip op. at 9-10. This history illustrates the Tribe’s interest in regulation and its belief that it is affected by non-Indian conduct relating to hunting and fishing. In my view, in the context of the Tribe’s history of regulation, the district court’s finding that non-Indian hunting of deer reduces the amount available for the Tribe and the findings concerning interference with the Tribe’s grazing rights are sufficient to constitute a “direct effect” on the Tribe that satisfies the second Montana exception.
In addition to ignoring the “direct effect” prong of the Montana test, the district court’s conclusions regarding the impact on the Tribe of non-Indian hunting and fishing on the taken lands are further undercut by its undue focus on issues of questionable relevance to the “direct effect” inquiry. For example, the court determined that tribal hunting and fishing for subsistence purposes was not widely practiced — a questionable finding — and that the Tribe places greater management emphasis on hunting and fishing for recreation than for subsistence. Id. at 11. It also offered its observation that the Tribe has not been successful in developing a recreational hunting and fishing industry to pay for a large-scale management program, and thus the Tribe’s economic security would not be threatened if it were now deprived of the right to regulate non-Indian hunting and fishing on the taken lands. Id. at 13-14. The court’s opinions that the Tribe’s food needs are being adequately met and that the Tribe’s recreational hunting and fishing programs are at present not as well developed as they might be, however, are not directly responsive to the inquiry of whether non-Indian conduct has a “direct effect” on the Tribe. While it may be true that the Tribe’s recreational industry is not so well developed that its economic security would be “threatened” if it were unable to regulate non-Indian hunting and fishing, that issue is separate from the question of whether non-Indian conduct on the taken lands has a “direct effect” on the Tribe. The court’s extensive discussion of the superior financial and management resources of the State compared with the Tribe is similarly non-responsive to the “direct effect” inquiry. See id. at 14-17.
The district court also pointed out that the Tribe accords preferential treatment to Tribe members when establishing licensing fees and restrictions on season closings and on the type, sex, and age of deer that may be killed; that Tribe members have sometimes engaged in the same sort of interference with tribal grazing rights as have non-Indian hunters; and that it is not “necessary” for the Tribe to regulate non-Indian hunting and fishing in order to protect tribal grazing rights because those rights “can be adequately protected through the United States, the state of South Dakota, or reciprocal tribal agreements.” Id. at 13, 17-18, 55. Again, however, though these statements may be true, they fail to address the question of whether the conduct of non-Indians with respect to hunting and fishing has a “direct *873effect” on the Tribe’s economic or political health or welfare so as to satisfy the second Montana exception. There is nothing improper in the Tribe according hunting or fishing preferences to Tribe members. Furthermore, the fact that Tribe members sometime engage in conduct affecting the Tribe that is similar to the conduct of non-Indians is irrelevant, inasmuch as the Tribe already can and does regulate the conduct of its own members. Finally, I see nothing in the case-law to indicate that under the second Montana exception a Tribe can regulate the harmful conduct of non-Indians only if no alternate means of protecting its interests are available.
I believe the district court misapplied the Montana test by ignoring the “direct effect” prong and instead considering only whether there was any “threat” or “peril” to the Tribe’s economic security, political integrity, or health or welfare. I conclude that the second Montana exception, properly applied, has been satisfied, and therefore I respectfully dissent.