(dissenting):
I dissent. I would affirm, substantially for the reasons stated by Chief Judge Neill in the District Court, E.D.Wash.1976, 412 F.Supp. 651. I do not agree that “the tribal council’s own scheme permits the ‘situation of dual state-federal jurisdiction’ that the district court found Congress had intended”, as the majority states supra, p. 92. Judge Neill pointed out that the “dual state-federal jurisdiction” does not extend to hunting and fishing, by virtue of 18 U.S.C. §§ 1162(b) and 1165. As he said, the grant of jurisdiction to Washington is subject to the limitation of § 1162(b). (412 F.Supp. at 654-55.)
Judge Neill also concluded that the Tribes have enacted “a comprehensive program for the administration of tribal fisheries resources” and this preempts the state’s power to regulate (id. at 655). I agree. The cases do not require that the tribal regulation must contain language expressly preempting, but even if they did, the Tribes’ resolutions contain language that makes their intent to preempt clear.
The evidence that the majority cites in support of its conclusion that there has been no preemption seems to me to negate rather than to support the majority’s conclusion.
The majority first refers to § 3(c) of the Tribes’ “Ordinance Governing hunting and fishing within the boundaries of the Colville Reservation.” Section 3 reads as follows:
Section 3. Jurisdiction.
(a) This code shall be applicable to all persons and lands within the boundaries of the Colville Reservation.
(b) Special regulations may be promulgated from time to time establishing special areas, seasons, gear and limits applicable to members of the Colville Tribes and members of reciprocating tribes. Except where otherwise provided, these regulations shall apply to all such persons as well as nonmembers of the Colville Tribes.
(c) No act prohibited by this code or by any other tribal ordinance may be committed, even though such act would be lawful under the law of the State of Washington. Brief of Plaintiffs-Appellees, App. 2, p. 2.
I submit that the foregoing language points to preemption, not away from it.
The next reference is to resolution 1971-516. This was adopted before the Tribal Ordinance, which became effective April 13, 1972, and so is of little weight in construing it.
Next is resolution 1973-158, which says: Fishing Season shall be identical to the Washington State fishing season. Id., App. 3, p. 16.
I suggest that this is merely a convenient shorthand definition, making it part of tribal law.
Next is the 1974 tribal permit. This is the only bit of evidence that I find possibly persuasive. Yet it can equally be said to be merely a warning as to what the state says that it requires, rather than a recognition that the state is entitled to require it.
Next is resolution 1971-365 quoted at 92, supra. This, too, precedes the Ordinance, and it also states:
WHEREAS, the management of game within the Colville Indian Reservation is *94under the exclusive jurisdiction and control of the Colville Tribes; and
* * * * * *
WHEREAS, the State of Washington issues annual hunting permits for game within the State of Washington, including the Colville Indian Reservation; and
WHEREAS, the State of Washington is without statutory authority to issue hunting permits covering the Colville Reservation area;
IT IS, THEREFORE, RESOLVED, that we, the Colville Business Council, . do hereby request the State of Washington to exclude the Colville Indian Reservation from future hunting permits and to properly notify the public accordingly; and
BE IT FURTHER RESOLVED, that the State Game Commission be requested, in the preparation of their hunting maps, to identify the Colville Indian Reservation in green as a “Closed Area”; and
FURTHER RESOLVED, that the violation of the “Closed Area — Colville Indian Reservation” provision of the hunting permit be handled in applicable state courts under state law.
Brief, App. 3, p. 8.
This is hardly recognition of dual regulation within the reservation. I note, too, that in Resolution 1971-625, the tribe declines to honor state issued beaver trapping permits.
In short, I am convinced that hunting and fishing on Indian reservations, being historically the very basis of Indian survival, have always been within the power of the tribes to control and regulate, that Congress has expressly preserved that power in 18 U.S.C. § 1162(b) and provided a Federal means of enforcing it in § 1165, that the tribe has fully exercised that power, and that this preempts the power of Washington to regulate hunting and fishing on the reservation. See also, Quechon Tribe of Indians v. Rowe, 9 Cir., 1976, 531 F.2d 408; Mescalero Apache Tribe v. State of New Mexico, D.N.M. 1978, No. 77-395-M Civil.
United States v. Sanford, 9 Cir., 1976, 547 F.2d 1085, is not contrary to the views just stated. There, we held that Montana’s game laws did apply to non-Indians hunting on the Crow Reservation. However, it does not appear that a comprehensive regulation of hunting on the Reservation had been adopted by the Crow Tribe as the Colville Tribes have done. See also, Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 4 Cir., 1978, 588 F.2d 75.
I would affirm.