dissenting:
I.
In Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir. 1979), we discussed the unique relationship between the United States Government and the Indian Tribes:
Since the year 1871, Indian tribes have been subject to the power and authority of the laws of the United States by means of the exercise of its legislative power over them. Prior thereto the various tribes were recognized by the United States as possessing the attributes of separate nations to the extent that treaties were entered into with them. Thus, since 1871 the Congress has regulated Indian affairs and the United States government serves as guardian of the Indian tribes, nations, or bands. Cherokee Nation v. Hitchcock, 187 U.S. 294, 23 S.Ct. 115, 47 L.Ed. 183 (1902). It has been said that, in a general way, the relationship now between the United States government and the Indian tribes is that of superior and inferior, in that the government has assumed, in large measure, the care and control of Indians and Indian Tribes. Montoya v. United States, 180 U.S. 261, 21 S.Ct. 358, 45 L.Ed. 521 (1901). The paradox, so to speak, is that even though Indian tribes have been held to have a [sovereign] status higher than the states they are nonetheless limited in sovereign power to the extent required of them by the superior sovereign, the United States. Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959).
Congress possesses paramount power over the property of the Indians by reason of its exercise of guardianship over their interests. Thus, plenary authority over the tribal relations of Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one not subject to the control of the judicial branch of government. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903). The propriety or justification of action by the Federal Government, legislatively mandated, relative to Indian lands and properties is a political rather than a judicial question and that power is plenary. Oneida Indian Nation v. County of Oneida, [414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73] supra; United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941).
*557It is within the power of the Congress to provide that the laws of a state shall extend over and apply to Indian country and activities thereon, where they clearly do not interfere with federal policies concerning the lands. Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965); Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962). 601 F.2d at pp. 1125, 1126.
In the exercise of the elusive concept of “tribal sovereignty”, the courts have been able to readily define the limits thereof only if a federal statute or treaty speaks directly to the subject, i. e., the power of an Indian tribe to exercise a particular jurisdiction. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); Bryan v. Itasca County, Minnesota, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976). Thus, any general federal law fails if it conflicts with or abrogates a tribal treaty right. United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976). The two primary sources of explicit limitations on tribal sovereignty or political independence are treaties and federal legislation dealing with Indians; the Tribes do, however, retain those aspects of “sovereignty” not withdrawn. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).
Indian treaties have not been interpreted narrowly, but have been construed so as to generously recognize the full obligation of the United States to protect the interests of a dependent people. Peoria Tribe of Indians of Oklahoma v. United States, 390 U.S. 468, 88 S.Ct. 1137, 20 L.Ed.2d 39 (1968). Accordingly, all doubtful expressions contained in treaties should be resolved in the Indians’ favor, Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970), although the Congress has exclusive plenary legislative authority over Indians and all of their tribal relations. Lone Wolf v. Hitchcock, supra.
In the instant case there are no treaty rights involved, inasmuch as the Jicarilla Apache Tribe Reservation was carved out of the public domain and withdrawn by Executive order. A tribe occupying lands under a treaty has rights which are contractual in nature; however, a tribe occupying reservation lands by virtue of an Executive Order does so at the will of the Congress. Under either circumstance, i. e., creation of Indian reservations by treaty or Executive order, the exclusive plenary legislative authority of the Congress is superior when exercised. The “jurisdictional” problem relating to the applicable law of “Indian country” was discussed in Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979):
Before the enactment of the state law here in issue, the Yakima Nation was subject to the general jurisdictional principles that apply in Indian country in the absence of federal legislation to the contrary. Under those principles, which received their first and fullest expression in Worcester v. Georgia, 6 Pet. 515, 517, [8 L.Ed. 483], state law reaches within the exterior boundaries of an Indian reservation only if it would not infringe “on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 219-220 [79 S.Ct. 269, 270, 3 L.Ed.2d 251].7 As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws. Moe v. Salish & Kootenai Tribes, 425 U.S. 463, [96 S.Ct. 1634, 48 L.Ed.2d 96], except where Congress in the exercise of its plenary and exclusive power over Indian affairs has “expressly provided that State laws shall apply.” McClanahan v. Arizona State Tax Comm’n., 411 U.S. 164, 170-171 [, 93 S.Ct. 1257,1261, 36 L.Ed.2d 129] [Footnote omitted].
439 U.S. at pp. 470, 471, 99 S.Ct. at p. 746.
The Congress, of course, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereign powers of Indian tribes. United States v. Wheeler, supra. This power was articulated in United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975):
*558This court has recognized limits on the authority of Congress to delegate its legislative power. Panama Refining Co. v. Ryan, 293 U.S. 388 [, 55 S.Ct. 241, 79 L.Ed. 446] (1935). Those limitations are, however, less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-322 [, 57 S.Ct. 216, 220-222, 81 L.Ed. 255] (1936). Thus it is an important aspect of this case that Indian Tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory. Worcester v. Georgia, 6 Pet. 515, 557 [, 8 L.Ed. 483] (1832); they are “a separate people” possessing “the power of regulating their internal and social relations . . . ,” United States v. Kagama, 118 U.S. 375, 381-382 [, 6 S.Ct. 1109, 1113, 30 L.Ed. 228] (1886); McClanahan v. Arizona State Tax Comm’n., 411 U.S. 164,173 [, 93 S.Ct. 1257, 1261-1262, 36 L.Ed.2d 129] (1973).
[W]hen Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent. authority over matters that affect the internal and social relations of tribal life. Clearly the distribution and use of intoxicants is just such a matter. [Emphasis supplied].
419 U.S. at pp. 556, 557, 95 S.Ct. at pp. 717, 718.
The Supreme Court has recognized that Indian Tribes have separate, distinct rights of self determination constituting them “quasi-sovereign tribal entities.” United States v. Wheeler, supra; Oliphant v. Su-quamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). These rights flow from the historical recognition of tribal political independence in the context of tribal-federal relations first declared in Worcester v. Georgia, supra, which involved the applicability of certain statutes enacted by the State of Georgia relative to reservation lands of the Cherokee Tribe. The Court held that the State statutes were not enforceable. While recognizing that Indian tribes are independent political communities possessing attributes of sovereignty over both their members and their territory, the Court nevertheless placed particular significance on the fact that the Constitution vested full control of Indian affairs in the Federal Government. In my view, the exclusivity of “control” indicated in Worcester, supra, was modified, at least interpretive-wise, by subsequent Supreme Court decisions which recognized the power of the states in specific areas over Indians and reservation lands providing that the power exercised does not infringe on the tribal powers of self-government which are part of the doctrine of tribal sovereignty, and, thus, those “inherent powers of a limited sovereignty” referred to in United States v. Wheeler, supra.
Applying the foregoing test, I conclude that it is incumbent upon the courts, on a case-to-case basis, to carefully scrutinize the power to be exercised in terms of the intended purpose and the interest to be served. Neither treaties or statutes dealing with Indian affairs relate or “speak” to many of the “jurisdictional” conflicts which have surfaced.
If statutes and treaties provide clear guidance relative to Congressional intent, no further inquiry is required. Thus, in the very area of our inquiry here (the power of the Indian Tribes to tax non-members on the Reservation lands) there are decisions upholding tribal tax assessments authorized by treaties, statutes or agreements with the United States. In Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030 (1904), the Supreme Court upheld an act of the Chickasaw Nation imposing an annual per head privilege or permit tax on cattle and other animals owned by a non-Indian who was grazing animals under a lease on the Reservation lands. The Court specifically found the tax assessment to be authorized under both the terms of treaties entered into with the Five Civilized Tribes, and the Curtis Act. In Buster v. Wright, 135 F. 947 (8th Cir. 1905) the Court upheld a “permit tax” imposed by the Creek Indian Nation in the nature of a percentile levy on all goods *559offered for sale by non-member traders doing business on the Reservation lands. The Court relied upon Morris v. Hitchcock, supra, and Crabtree v. Madden, 54 F. 426 (8th Cir. 1893) in upholding the tax, i. e., the existence of the power and authority granted the Tribe under treaties and acts. Even so, the court did opine that in the absence of an Act of Congress, treaty or agreement with the United States, the Creek Nation would be empowered to impose the tax as “ . . . one of the inherent and essential attributes of its original sovereignty”. In Crabtree v. Madden, supra, the Court upheld an annual license tax of $200.00 assessed by the Creek Nation against nonmember traders doing business on the Reservation based upon the power and authority reserved to the Tribe under the Treaty of August 7, 1856, 11 Stat., p. 703, Art. 15, which granted the Creeks the unrestricted right of self-government with full jurisdiction over persons and property within their limits. The Treaty provided that all persons not members of the Tribe were to be regarded as “intruders” subject to removal unless traveling through or “trading therein under license”.
If, then, there are no treaties, statutes and agreements granting such power, the courts have been compelled to engage in the “balancing of interests” process. In this circumstance, the Supreme Court has recognized that non-Indians and their property interests within Indian reservations are subject to licensing enactments or ordinances. United States v. Mazurie, supra, involved the inherent power of the Tribe to grant or deny a liquor license to a non-Indian liquor dealer operating a retail business on non-Indian lands within the boundaries of the reservation. In like manner, tribal hunting and fishing licenses governing nonmembers who enter the reservations to hunt and fish have been grounded upon the inherent powers of the Tribe. Quechan Tribe of Indians v. Rowe, 531 F.2d 408 (9th Cir. 1976).
There are other areas where courts have been compelled to engage in the balancing of interest process. Thus, in Puyallup Tribe, Inc. v. Washington Game Department, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977), the State of Washington’s conservation regulations dealing with an allocation of the total number of steelhead fish which could be netted by the Indians on the waters flowing through reservation lands was upheld as a proper conservation measure and not as an attempt to allocate the number of fish which could be netted by the tribe. To the same effect is Organized Village of Kake v. Egan, supra. The Court there upheld the State of Alaska’s prohibition against the Thlinget Indians’ use of salmon traps on waters flowing through the incorporated communities, notwithstanding Alaska’s disclaimer in its Alaska Statehood Act relating to Indians, to-wit: (a) disclaimer of right and title to Indian property, and (b) recognition that the United States retains “absolute jurisdiction and control” over right and title of Indian property. Enriquez v. Superior Court, 115 Ariz. 342, 565 P.2d 522 (App. 1977) held that a tribal court had jurisdiction in tort cases involving actions brought by a non-member against a tribal member resulting from an accident occurring on the reservation.
The Supreme Court has dealt with the “balancing of interests” problem in very few decisions. In Oliphant v. Suquamish Indian Tribe, supra, the Court held that Indian tribes lack criminal jurisdiction over non-members in the absence of specific Congressional authorization. The Court observed, inter alia:
Indian reservations are “a part of the territory of the United States.” United States v. Rogers, 4 How. 567, 571 [, 11 L.Ed. 1105] (1846). Indian tribes “hold and occupy [the reservations] with the assent of the United States, and under their authority.” Id., at 572. Upon incorporation into the territory of the United States, the Indian tribes thereby came under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty. “[T]heir rights to complete sovereignty, as independent nations *560[are] necessarily diminished.” Johnson v. M’Intosh, 8 Wheat. 543, 574 [, 5 L.Ed. 681] (1823).
435 U.S. at pp. 208, 209, 98 S.Ct. at p. 1021.
The Supreme Court, in Organized Village of Kake v. Egan, supra, following a review of a number of its prior decisions in this area of concern, observed:
These decisions indicate that even on reservations state laws may be applied to Indians unless such application would interfere with reservation self-government or impair a right granted or reserved by federal law.
369 U.S. at p. 75, 82 S.Ct. at p. 571.
The problems generated by the issue of the “exclusiveness” of federal jurisdiction were highlighted by this language contained in Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973):
. The upshot [of more individuality in treatment of certain treaties and specific federal statutes, including statehood enabling legislation as they, taken together, affect the respective rights of states, Indians and the Federal Government] has been the repeated statements of this Court to the effect that, even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law. Organized Village of Kake, supra [, 369 U.S.] at 75 [82 S.Ct. at 570]; Williams v. Lee, 358 U.S. 217 [, 79 S.Ct. 269, 3 L.Ed.2d 251] (1959); New York ex rel. Ray v. Martin, 326 U.S. 496, 499 [, 66 S.Ct. 307, 308, 90 L.Ed. 261] (1946); Draper v. United States, 164 U.S. 240 [, 17 S.Ct. 107, 41 L.Ed. 419] (1896). 411 U.S. at p. 148, 93 S.Ct. at p. 1270. See also: United States v. Mazurie, supra.
I would hold that the District Court did not err in finding that the Tribe’s sovereign status does not extend to or allow the imposition of the challenged Tribal Severance Tax. In my view, the power of the Tribe to impose such a tax in these consolidated cases is clearly a political question which has not been explicitly addressed by the Congress. If the Congress intends that such power exists, it is incumbent that legislation be enacted explicitly so declaring. Until or unless the Congress affirmatively acts, I would hold that Tribe does not possess the right, power and authority to enforce the collection of its Tribal Severance Tax. My research discloses only two opinions which recognize the inherent power of an Indian tribe to enact and enforce a tribal ordinance assessing a tax upon a non-Indian’s income from business conducted within reservation boundaries. Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir. 1958) cert. denied 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956). I decline to adopt the broad interpretation of inherent tribal sovereignty — power laid down in these opinions, and adopted by the majority here.
A significant aspect of the issue before us here involves recognition that the United States Government, as guardian, has enacted much legislation and appropriated significant amounts of federal funds for the direct, specific and exclusive benefit of its Indian wards. In like manner, the various states wherein the tribes reside have rendered state governmental aid and assistance in many important areas, utmost of which is perhaps the maintenance of the public schools. To what extent the Congress intends its beneficial enactments and appropriations to serve as exclusive means, I do not know. It is, however, my view that this involves a legislative judgment in the nature of a political question. The question of what involves “essential tribal relations” referred to in Williams v. Lee, supra, is, in my judgment a political question.
In positing the “inherent sovereignty” issues presented here as a political question for Congressional determination, I recognize that the United States Government, out of avowed solicitude for the welfare of its Indian wards who were considered “ . . .a weak and defenseless people, who are wards of the nation, and dependent *561wholly upon its protection and good faith,” Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56 L.Ed. 941 (1912), undertook by treaties, statutes and executive orders to establish legal relations between the United States Government and the Indian Tribes which “ . . . resembles that of a ward to his guardian.” Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831). Implicit in the relationship thus created, in terms of “ownership” of the property set aside for the use, occupancy and benefit of the Indian tribes, is the fact that legal title, with its attendant aspect of dominion and ultimate control, vests in the United States, as guardian, with the right of use, benefit and occupancy vesting in the Indian wards. That relationship between the United States Government and the various Indian tribes, however, was never intended to be one of Indian servitude. Thus, the Supreme Court has held that the power of Congress over Indian affairs, though plenary in nature, is not absolute and that the standard of review recently applied is that legislative judgments should not be disturbed “as long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians.” Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 85, 97 S.Ct. 911, 919, 51 L.Ed.2d 173 (1977); Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2474, 2485, 41 L.Ed.2d 290 (1974).
The “Indian Sovereignty” doctrine cannot be equated with the governmental sovereignty of the United States Government. It is, however, of a “unique and limited character” existing at the sufferance of Congress and subject to complete defea-sance. United States v. Wheeler, supra, 435 U.S. at p. 323, 98 S.Ct. at p. 1086. Tribal self government is rooted in the current federal policy of promoting tribal self-government, Bryan v. Itasca County, Minnesota, supra, which advances the social, institutional, political and cultural values peculiar to the respective tribes. The basic right of Indian internal self-government is directed to their right “of regulating their internal and social relations,” out of recognition of their “semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people.” United States v. Kagama, 118 U.S. 375, 381, 6 S.Ct. 1109, 1112, 30 L.Ed. 228 (1886).
II.
In the context of the above analysis of the current federal policy, I now consider the status of Congressional judgment in the area of the challenged Tribal Severance Tax in weighing the preemption contention against the claim of inherent tribal sovereignty. If the Congress has explicitly addressed the subject matter, obviously there is no need for this Court to engage in the “balancing of interests” determination.
In my view, just as found by the District Court, there is clear congressional intent controlling in this case. I would hold that the enactment by the Congress on March 3, 1927, of 25 U.S.C.A. § 398c., 44 Stat. 1347, constituted clear, unambiguous legislative intent that only a “state or local authority” is empowered to levy and collect taxes upon the production from oil and gas wells produced and saved “upon lands within Executive order Indian reservations.” That statute imposes one restriction only, i. e., that such taxes may not become a lien against Indian lands or property. The statute reads in full as follows:
§ 398c. Same; taxes
Taxes may be levied and collected by the State or local authority upon improvements, output of mines or oil and gas wells, or other rights, property, or assets of any lessee upon lands within Executive order Indian reservations in the same manner as such taxes are otherwise levied and collected, and such taxes may be levied against the share obtained for the Indians as bonuses, rentals, and royalties, and the Secretary of the Interior is hereby authorized and directed to cause such taxes to be paid out of the tribal funds in the Treasury; Provided, that such taxes shall not become a lien or charge of any kind against the land or other property *562of such Indians. Mar. 3, 1927, c. 299, § 3, 44 Stat. 1347.
Tribe and the Secretary of the Interior contend that 25 U.S.C.A. § 398c. does not pertain or control. They argue, first, that Tribe, as an element of its sovereign status, is empowered to enact and enforce its severance tax ordinance and, second, that the Congressional enactment on May 11, 1938, of 25 U.S.C.A. § 396a. specifically governs the subject leases (and production therefrom) and does not permit state taxation of oil and gas produced within the Tribe’s reservation. That statute reads as follows:
§ 396a. Leases of unallotted lands for mining purposes; duration of leases On and after May 11, 1938 unallotted lands within any Indian reservation or lands owned by any tribe, group, or band of Indians under Federal jurisdiction, except those specifically excepted from the provisions of this section by section 396f of this title, may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council or other authorized spokesmen for such Indians, for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities. May 11, 1938, c. 198 § 1, 52 Stat. 347.
I cannot accept the contentions of Tribe and the Secretary, with full recognition of the rule that limitations on tribal ' self-government cannot be implied from a statute or treaty but must be expressly stated or otherwise made clear from surrounding circumstances and legislative history. Bryan v. Itasca County, Minnesota, supra; Morton v. Mancari, supra. My review of the legislative history of 25 U.S.C.A. § 398c convinces me that the Congress did intend to grant States and local authorities the exclusive authority to tax non-Indian oil and gas lessees on production realized from their oil and gas operations conducted on Executive order Indian reservation lands. It has been held that Indian tribes are not “states”. Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Barta v. Oglala Sioux Tribe, supra. The Congressional discussions and debates relating to this legislation concentrated on the fact that Executive order reservation lands were not in the- same category as those lands set aside under treaty to a tribe which “gave up” or “surrendered” ancestral or aboriginal rights in exchange therefor, but were, instead, simply set aside as a “gratuity” to the tribes from the United States. In the sense of the “balancing of interests” process, the Congress compromised the competing interests of the States and the tribes by authorizing the tribes to retain all of the royalties paid under the operating leases and the States to impose taxes on the production of oil and gas. (H.Rept.No.1791, 69th Cong., 2nd Sess., 69 Cong.Rec. 4580 (1927)). See also: (S.B. 876, 68th Cong., 2nd Sess., 66 Cong.Rec. 999 (1924); 66 Cong.Rec. 2234 (1925); 67 Cong. Rec. 10915 (1926).
I would reject Appellants’ argument that the 1938 enactment of the Indian Mineral Leasing Act, 25 U.S.C.A. § 396a, et seq., repeals 25 U.S.C.A. § 398c. Although cognizant that statutes enacted for the benefit of the dependent Indian tribes are to be liberally construed and that doubtful expressions are to be resolved in favor of the Indians, Morton v. Mancari, supra, I would hold that because nothing in the Mineral Leasing Act of 1938 speaks to the subject of taxation of oil and gas produced from Indian lands and certainly nothing relating to Executive order reservation lands, there is lacking that required “clear intention” of provisions contained in a general statute necessary to effect repeal of or nullify the express terms of a specific statute, (25 U.S.C.A. § 398c.), regardless of the priority of enactment. Morton v. Mancari, supra; Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Jicarilla Apache Tribe v. United States, supra; Glover Construction Company v. Andrus, 591 F.2d 554 (10th Cir. 1979); Sutherland, Statutory Construction, 4th Ed., Vol. 2A, § 51.05. Statutes must be construed as intended by the drafters when enacted in the light of conditions as they *563existed. United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. 40 (1940).
In addition to reliance on repeal by implication of 25 U.S.C.A. § 398c. by enactment of 25 U.S.C.A. § 396a, et seq., Tribe further relies on the authority of the Indian Reorganization Act of June 18,1934, 25 U.S.C.A. §§ 476-477.
In accordance with the Indian Reorganization Act, Tribe adopted a revised Constitution on December 23, 1968,' subsequently approved by the Undersecretary of the Interior. The revised Constitution organized the tribal government into the tripartite departments of legislative, executive and judicial. The principal governing body is the tribal council consisting of elected members of the Tribe. Pertinent portions of the Tribe’s revised Constitution are:
Article XI, Section 1 provides:
The inherent powers of the Jicarilla Apache Tribe, including those conferred by Section 16 of the Act of June 18, 1934, (48 Stat. 984), as amended, shall vest in the tribal council and shall be exercised thereby subject only to limitations imposed by the Constitution of the United States, applicable Federal statutes and regulations of the Department of the Interior, and the restrictions established by this revised constitution. [Emphasis supplied].
Subparagraph (e) of Section 1, Article 10, provides:
(e) Taxes and fees. The tribal council may levy and collect taxes and fees on tribal members, and may enact ordinances, subject to approval by the Secretary of the Interior, to impose taxes and fees on non-members of the tribe doing business on the reservation.
Section 2 of Article 10 establishes the procedures for approval of tribal ordinances, which, in substance, provides that ordinances enacted be presented to the Superintendent, Bureau of Indian Affairs, Ji-carilla Apache Agency, within ten days after approval by the Council, and that the Superintendent shall within ten days following receipt by him, transmit it to the Secretary of the Interior with his recommendation. The enactment becomes effective when approved by the Secretary, or if he does not act within 120 days following submittal to him. It was under authority thereof that the tribal council of Tribe on July 9, 1976, enacted its Oil and Gas Severance Tax Ordinance and further enacted a Severance Tax Permanent Fund Ordinance. These ordinances were subsequently approved by the Secretary of the Interior’s delegate. The Tribal Severance Tax is expressly imposed on “any oil and natural gas severed, saved and removed from Tribal lands”. The measure of the tax is 5 cents per million BTU of gas and 29 cents per barrel of crude oil or condensate produced on the Reservation and “sold or transported off the reservation ”. All oil, gas or condensate representing [reserved] royalty, gas “taken by the Tribe in kind and used by the Tribe”, is exempt from the Tax.
Tribe does not — and cannot — point to any specific language in the Indian Reorganization Act of 1934 authorizing or empowering it to tax. In lieu of any such specific, clear language, Tribe relies upon (a) the stated purpose of the Act, i. e., freedom to organize for purposes of self-government and economic enterprise, and (b) an opinion rendered by the Solicitor to the Secretary of the Interior in 1934, identified as 55 I.D. 14, setting forth the purported intentions of Congress in enacting Section 16 of the Act. The opinion reads in part as follows:
Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.
I conclude that under Section 16 of the Wheeler-Howard Act (Public No. 383, 73rd Congress) the “powers vested in any Indian tribe or tribal council by existing law”, are those powers of local self-*564government which have never been terminated by law or waived by treaty, and that chief among these powers are the following:
5. To levy dues, fees, or taxes upon the members of the tribe and upon nonmembers residing or doing any business of any sort within the reservation, so far as may be consistent with the power of the Commissioner of Indian Affairs over licensed traders.
Tribe contends that the Solicitor’s opinion, rendered the same year the Act became effective, is the “best indication of Congressional intent available”, citing to Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883 (1956). [Brief of Tribe, In Chief, p. 24]. A careful examination of the exact language employed by the court in Squire v. Capoeman, supra, is simply that “These relatively contemporaneous official and unofficial writings are entitled to consideration.” 351 U.S. at p. 9, 76 S.Ct. at p. 616. I have considered them and find them wanting.
The only express language contained in the 1934 Act vesting rights and powers in a tribe or its tribal council, if organized under the terms of the Act is: To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent the sale, disposition, lease or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local Governments. 25 U.S.C.A. § 476. The only conceivable language expressed in the § 476, supra, which the Solicitor’s Opinion 55 I.D. 14 could have relied upon to “make the case” is that authorizing the various Indian tribes to organize under the Act “for its common welfare” and to adopt “an appropriate constitution and bylaws”. Any reliance thereon, as support of Tribe’s contention that the Act effectively repealed 25 U.S.C. § 398c, supra, is misplaced.
My interpretation of the interplay between these conflicting contentions is, I believe, in accord with a detailed analysis of a similar conflict set forth in Fort Mojave Tribe v. San Bernardino County, 543 F.2d 1253 (9th Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1678, 52 L.Ed.2d 377 (1976). In that case, California exercised civil and criminal jurisdiction over Indian country within its borders [but specifically exempted taxation of any real or personal property belonging to any Indian or Indian tribe] authorized under 28 U.S.C. § 1360(b). The court pertinently observed:
While the imposition of a possessory interest tax on the leasehold interest will have an economic effect on the Indian lessors, and perhaps, although not certainly, will reduce the amount of rent they will be able to collect the legal incidence of the tax clearly falls on the lessee. The lessor will never be personally liable for any delinquent taxes arising under this taxing statute . . .Under these circumstances, there cannot be a direct encumbrance on the lessor’s reversionary interest. Similarly, the lease, apart from the lessor’s reversionary interest, even if considered an asset of the tribe, is not directly encumbered simply because the amount of the tax is determined by the value of the leasehold. Whatever may be the scope of the indirect burden placed on the lessor’s interest in this case, we hold that it is not sufficient to constitute an encumbrance of an “interest in land or other tribal asset.”
Our conclusion is buttressed by the Supreme Court’s decision in Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973). There the Court, relying on the statement that section 476 of the Act [The Indian Reorganization Act of 1934] was designed to encourage tribal enterprises “to enter the white world on a footing of equal competition,” 78 Cong.Rec. 11732, found that traditional tax immunities had neither been expanded nor reduced by the Act. Mescalero, supra at 153-54 n. 9, 93 S.Ct. 1267 [at 1273 n. 9]. Because the court would not imply tax exemptions absent clear statutory guidelines it upheld the imposition of a state tax on the gross *565receipts of a ski resort operated by the Mescaleros on land located outside the boundaries of their reservation. We follow that lead here and refuse to find that the Act created a tax exemption for non-Indian lessees of Indian land. Congress has given no clear indication that such a result was desired. When such a signal is given, the state and local governments must retreat.
Thus, we see that neither the Act nor PL-280 evidences a Congressional intent to preclude the taxation that is being challenged here. However, we cannot say that PL-280 directly authorizes such taxation. Bryan v. Itasca County, supra, forecloses the possibility of such a statement by specifically holding that the PL-280 grant of civil jurisdiction only confers jurisdiction over civil causes of action involving Indians. It is not a general grant of regulatory and taxing power over Indians. This is not, however, fatal to the state’s cause. Although McClanahan, supra, held that, in the absence of Congressional consent, states are preempted from taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, the court specifically did not deal with “exertions of state sovereignty over non-Indians who undertake activity on Indian reservations.” McClanahan, supra at 411 U.S. 168, 93 S.Ct. at 1260. When the state action is directed at non-Indians, with only indirect effects on Indians or Indian lands, it is necessary to reconcile the federal preemption rationale with the state’s recognized authority to regulate its citizens. McClanahan, supra at 179, 93 S.Ct. 1257 [, at 1266]. Reconciliation requires that state legislation primarily directed at non-Indian lessees of Indian land be considered as not automatically preempted by the federal government in the absence of specific authorization . To permit such non-Indians to enjoy the immunity designed for Indians requires, we believe, a stronger Congressional signal than a statute which neither precludes nor authorizes the taxation in question. [Footnote omitted]. [Emphasis supplied].
543 F.2d at pp. 1256, 1257.
I observe that in the case at bar a holding that the New Mexico State taxes levied against the proceeds of oil and gas produced by lessee Operators from Tribe’s Reservation lands are valid based upon the express Congressional “signal” authorizing same, i. e., 25 U.S.C. § 398c, avoids any risk of permitting its imposition absent such clear Congressional consent. The Congress has expressly provided that the taxing laws of the various states extend over and apply to proceeds realized by non-Indian Operators from mineral exploration conducted on Executive Order Reservation lands. It is this power the court recognized in Warren Trading Post Co. v. Arizona State Tax Commission, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965).
In its Reply Brief and Additional Brief filed prior to oral argument, Tribe relies upon the Natural Gas Policy Act of 1978, 15 U.S.C. §§ 3301, et seq., as express Congressional recognition of tribal authority to impose severance taxes on natural gas. 15 U.S.C. § 3320(c) defines, for purposes of the Act, “State Severance Tax” as any “severance, production, or similar tax . imposed on the production of natural gas by any State or Indian Tribe.” Tribe acknowledges that the conference report statement clearly shows that the Congressional conferees did not intend thereby to prejudge the outcome of cases then on appeal to this Court respecting the power of Indian tribes to impose taxes on non-Indians engaged in business activities on Indian reservations. In any event, I would hold that nothing in the language of the Natural Gas Act of 1978 can be interpreted as a Congressional grant of power to Indian tribes to enact and levy tribal severance taxes. The language is not, either expressly or impliedly, an affirmative grant of such power of taxation to Indian tribes.
III.
I would hold that the District Court did not err in concluding that the Tribe’s Sever-*566anee Tax levied only against oil, gas or condensate produced on the Reservation and sold or transported off the Reservation is an unlawful multiple burden on and discriminatory against interstate commerce.
Tribe and Secretary contend that the severance tax ordinance is not in conflict with the commerce clause because the precise “triggering” event here is entirely “local” in nature, i. e., the tax is imposed on oil and gas when severed, saved and removed from tribal lands. From thence, it is contended that the eventual entry of oil and gas taxed locally upon severance from tribal property into interstate commerce outside of New Mexico does not thereby invalidate the tax. Thus, Tribe and Secretary, in effect, contend that the Tribe’s tax is “insulated” by reason of the local nature of its application.
The record reflects that all of the gas provided by Appellee Marathon from Tribe reservation lands is sold in interstate commerce. [R., Vol. VI, p. 240]. Some sixty percent of the production realized by Appel-lee Amoco is sold in interstate commerce. [R., Vol. VI, p. 229]. Thus, inasmuch as the tax is not designed to apply until the oil and gas produced is “sold or transported off the reservation”, I would hold that the incidence bears directly and discriminately against interstate commerce. Northwestern States Portland Cement Co. v. State of Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959); Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586 (1939); J. D. Adams Manufacturing Co. v. Storen, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365 (1938). A tax imposed on local activity related to interstate commerce is valid only if the local activity is not such an integral part of interstate process, the flow of commerce, that it cannot realistically be separated from it. Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954). There a Texas tax on the occupation of “gathering gas”, measured by the entire volume of gas “taken”, as applied to an interstate natural gas pipeline company, where the taxable incidence is the taking of gas from the outlet of an independent gasoline plant within the State for the purpose of immediate interstate transmission, was held invalid under the Commerce Clause. The Commerce Clause is offended when, as here, the tax, by its very nature, makes interstate commerce bear more than its fair share. Central Greyhound Lines v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633 (1948).
The Supreme Court has consistently struck down state laws which discriminately benefit [or may discriminately benefit] local or intrastate commerce at the expense of out-of-state or interstate commerce. In Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978) the Court held that the Commerce Clause protects the interstate market, and not particular firms from prohibitive regulations. Under this rationale, the Court observed that a state law does not discriminate against interstate commerce if it leaves the in-state and out-of-state businesses participating in the market on an equal competitive footing. In relation to the instant case, those businesses engaged in exclusive intrastate refining, marketing and distribution of oil and gas who purchase that portion of the oil and gas retained on the Tribe’s land and thus not subject to the Tribal Severance Tax, would enjoy a discriminatory competitive advantage over those businesses supplying the oil and gas produced from the Reservation lands moving in interstate commerce. The in-state businesses would not be assessed the Tribe’s Severance Tax, while the out-of-state businesses would. The impact would thus be an unequal competitive footing.
In Boston Stock Exchange v. State Tax Comm’n., 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977), the Supreme Court stated:
On various occasions when called upon to make the delicate adjustment between the national interest in free and open trade and the legitimate interest of the individual States in exercising their taxing powers, the Court has counseled that the result turns on the unique characteristics of the statute at issue and the particular circumstances in each case. E. g., *567Freeman v. Hewit, supra, [329 U.S. 249] at 252 [, 67 S.Ct. 274 at 276, 91 L.Ed. 265], This case-by-case approach has left “much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation.” Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457 [, 79 S.Ct. 357, 362, 3 L.Ed.2d 421] (1959). Nevertheless, as observed by Mr. Justice Clark in the case just cited: “[F]rom the quagmire there emerge . . . some firm peaks of decision which remain unquestioned.” Id., at 458 [, 79 S.Ct., at 362]. Among these is the fundamental principle that we find dispositive of the case now before us. No State, consistent with the Commerce Clause, may “impose a tax which discriminates against interstate commerce ... by providing a direct commercial advantage to local business.” Ibid. See also Halliburton Oil Well Co. v. Reily, 373 U.S. 64 [, 83 S.Ct. 1201, 10 L.Ed.2d 202] (1963); Nippert v. Richmond, 327 U.S. 416 [, 66 S.Ct. 586, 90 L.Ed. 760] (1946); I. M. Darnell & Son v. Memphis, 208 U.S. 113 [, 28 S.Ct. 247, 52 L.Ed. 413] (1908); Guy v. Baltimore, 100 U.S. 434, 443 [, 25 L.Ed. 743] (1880); Wel-ton v. Missouri, 91 U.S. 275 [, 23 L.Ed. 347] (1876). The prohibition against discriminatory treatment of interstate commerce follows inexorably from the basic purpose of the Clause. Permitting the individual States to enact laws that favor local enterprises at the expense of out-of-state businesses “would invite a multiplication of preferential trade areas destructive” of the free trade which the Clause protects. Dean Milk Co. v. Madison, 340 U.S. 349, 356 [, 71 S.Ct. 295, 299, 95 L.Ed. 329] (1951).
429 U.S. at p. 329, 97 S.Ct. at p. 606.
I would affirm the District Court.