dissenting:
In Wisconsin v. Sanapaw et al. 21 Wis. 2d 377, 124 N. W. 2d 41 (19.63), cert. denied, 377 U.S. 991 (1964), rehearing denied 379 U.S. 871- (1964), tbe Wisconsin Supreme Court held that Congress by its enactment of Section 10 of the Menominee Termination Act of 1954 ended plaintiff’s unregulated hunting and fishing and brought them within the purview of the state’s game laws. See 68 Stat. 250, 25 U.S.C. § 899 (1964). The state court found that the state’s asserted regulation of the Indians was derivative of Federal statutes and that the Indians had no claim against the state. The majority of our court now decides the reverse; that is, that the Termination Act “did not abrogate the exclusive hunting and fishing rights of the Menominees on their own reservation, but actually preserved and protected them.” The court means that any future complaint by the Indians for violation of their hunting and fishing rights is against the State of Wisconsin and not the Federal Government. Each court has told the Indians that they have rights, but not in the deciding court. Thus, the Indians have won both contests, but each time on the wrong playing field and against the wrong opposition.
This court’s decision leaves plaintiffs in a state of legal weightlessness. While each court has held that the other court’s government is responsible for plaintiffs’ condition, neither is able to enforce its finding. The Wisconsin Supreme Court cannot make the Federal Government compensate the Indians. And this court is unable to stop Wisconsin’s enforcement of state game laws, even though we say the Indians are not subject thereto. Thus, if there is no appeal of this court’s decision, plaintiffs may never have their dilemma effectively resolved. Their situation will not be the common one of the party who finds himself with conflicting decisions in several Federal circuit courts. Eather it will be akin to the situation of Alphonse and Gaston where two courts tell each other that any further resolution of the dilemma belongs to the other’s docket. The result is that neither court takes further action, and the Menominee Indian who tries to exercise his ancient hunting and fishing rights on his own reservation winds up in jail.
*518The predicament of plaintiffs does not have to remain insolvable. The majority opinion presents one solution. It recommends that plaintiffs seek, in a Federal district court, an injunction against the State of Wisconsin preventing it from enforcing its game laws. This suggestion is fraught with drawbacks; the most minor one being the possibility that the injunction will not be granted. Of major consequence are the difficulties connected with Federal action against state officials in the functioning of their duties. It suffices to say that the problems arising out of Ex Parte Young, 209 U.S. 123 (1908) and its progeny make me very chary of Federal injunctions issued against state functions. See, generally, Hart & Wechsler, The Federal Courts and the Federal System, 81A-890; Develoyments in the Law— Injunctions, 78 Harv. L. Rev. 994, 1045 (1965); Wright, Federal Courts, 348. Cf. Martin v. Creasy, 360 U.S. 219 (1959).1
A more obvious solution to plaintiffs’ difficulties would be a grant of certiorari by the Supreme Court and a resolution of the conflict between the state and Federal courts’ decisions. However, the United States Supreme Court has already denied certiorari in the Wisconsin Supreme Court Indian case, and in the Klamath Indian case cited by the majority herein to the same effect as our present opinion.
In situations like this, at least two other approaches— comity and certification — are available to assist in resolving the Indians’ predicament. These legal vehicles contain a greater degree of certainty than either certiorari or inj miction. For, with them, the resolution of the conflict between the courts is not left to a later court’s acts, but is handled while the case is still within this court’s jurisdiction. Even though the conflict between the courts would be resolved in this court, neither of the two additional approaches require as thorough handling of the merits of the case as the majority does. Thus by doing less in the handling of the case, this court could do more to resolve plaintiffs’ situation.
*519The first of these approaches — comity—would mean the acceptance by this court of the decision of the Wisconsin Supreme Court. Acceptance of the state court’s decision does not mean that the process is automatic, that there is no inspection of either the present case or the state’s decision. That approach would relegate the court to being a mere rubber stamp or a judicial conduit. Not only would that possibly saddle the court with an unsound decision, but also it would mean an abdication of duty. In this case, the thought of comity should not arise until one believes that he is not without doubt on the question of whether or not the Menominee Termination Act cancelled hunting and fishing rights of the Indians. The nest step is to inspect the state court decision to see if it is reasonably derived. With a positive answer to this inspection, one would use comity and leave the final resolution to a higher court. Mast, Foos & Company v. Stover Manufacturing Company, 177 U.S. 485, 488-89 (1900); Sanitary Refrigerator Company v. Winters, et al., 280 U.S. 30, 35 (1929).
The second approach available to courts whose resolution of an issue is not fixed is the seldom used process of certification. Moore & Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 Va. L. Rev. 1,46-50 (1949). 28 U.S.C. §1255(2) provides that “[c]ases in the Court of Claims may be reviewed by the Supreme Court * * * [b]y certification of any question of law by the Court of Claims in any case as to which instructions are desired, and upon certification the Supreme Court may give binding instruction on such question.” The sporadic use of certification is not due to its lack of success. For, when used, it has been beneficially employed. See Williams v. United States, 289 U.S. 553 (1933) and O'Donoghue v. United States, 289 U.S. 516 (1933) (both certifications from the Court of Claims). Use of certification in this case should not augment the fears held by many that an extensive use of this right could unduly enlarge the Supreme Court’s obligatory jurisdiction. This is not the case where a court is trying to conceal an obligatory appeal in another guise. There is no wolf in sheep’s clothing. Certification is put forth so that this court could make every possible *520effort to arrive at a sound adjudication of a case that presents a troubling issue of law augmented by the possibility of a never-solved conflict between Federal and state courts that would deprive plaintiffs of a final, meaningful resolution of their suit. The Menominees are either entitled to their hunting and fishing rights under the Treaty or they are entitled to damages because these rights have been taken away, and certification would guarantee one of these decisions and not a meaningless hybrid.
Between comity and certification, I favor the latter approach because it seeks guidance from a higher court rather than looks backwards to a lower court as comity does. Therefore, rather than reach a decision on the merits of the case at this time, I would have certified the following question to the Supreme Court: Did the Menominee Termination Act of 1954 cancel the hunting and fishing rights of plaintiffs on their reservation and thereby subject them to the game laws of the State of Wisconsin as if they were non-Indian citizens of the state?
The history of the Menominee Tribe does not read well for the conduct of the United States. Again and again the Tribe has had to sue the Federal Government in this court to recover damages to which they were entitled. Recently, a committee of the Congress referred to this court as “the keeper of the nation’s conscience.” If the court is to continue to deserve this title, we must now see to it that before the Federal Government finally closes its books on the old Menominee Tribe, the last page is written with honest justice for them and for their rights.
Laramore and ColliNS, Judges, join in the foregoing dissent.Tlie problems in this area were passed oyer without comment by the court in United States v. Moore, 62 F. Supp. 660 (W. D. Wash. 1945), aff’d 157 F. 2d 760 (9 Cir. 1946), cert. denied, 330 U.S. 827 (1947), the case cited by the majority to support the suggestion of an injunction. In that case, plaintiff requested an injunction. After holding for plaintiff on the law, the court decided that it should grant plaintiff’s request.