dissenting.
The general law relative to this matter is nicely summarized in the majority opinion, but I do not believe it to be accurately applied to the facts of this case.
The record reflects that approval of the “public highway” here involved occurred on February 18, 1938. See Department of Interior letter dated March 11, 1938. It further reflects that such approval was of a “right-of-way” for a “public highway” pursuant to the “Act of March 3, 1901 (31 Stat. 1084)” (codified into 25 U.S.C. § 311). Such Act reads in pertinent part:
“That the Secretary of the Interior is hereby authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways, in accordance with the laws of the State or Territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indians under any laws or treaties but which have not been conveyed to the allottees with full power of alienation.” (Emphasis supplied.)1
This Act is a grant by the United States, acting through the Congress, of a right-of-way for this highway, and it is an extin-guishment of the sovereignty of the Indian tribes over the land used for the highway, with a direction that the laws of Wyoming shall pertain thereto.
*1074The only issue in this case should be resolved on that simple proposition. The ultimate determination as to defendant’s liability is properly for the district court.
Common sense would lead to the conclusions that in 1938 the Congress of the United States and the State of Wyoming were well aware of the fact that this highway would be traveled by hundreds of thousands of motorists in the future; that accidents and motor vehicle violations would often occur upon it; that some of the defendants in actions arising therefrom would be enrolled Indians; that the Indian enforcement, investigative, and judicial facilities would be inadequate to handle the same; that legislation and private activities designed for safety and individual protection should not be suspended from applicability to this road-for the benefit of enrolled Indian defendants as well as others;2 that the state would be spending a large sum of money to construct and maintain the highway, its bridges, its access, its fences, and its other appurtenances; that such expenditure would be wasted if Indian defendants could disregard the state laws which prohibit making holes or trenches in the highway, or destruction of the bridges and fences; and that, generally, the highway must be subject to control of the state.
As reflected in the majority opinion, the tribal court jurisdiction is premised on the “right of the reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959). The cornerstone of the majority opinion is the proposition that exclusive jurisdiction lies in the tribal courts in cases involving internal tribal affairs or tribal self-government unless Congress had delegated such jurisdiction to the state. Williams v. Lee, supra; Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962); Kennerly v. District Court of Ninth Judicial District of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971); Fisher v. District Court of Sixteenth Judicial District of Montana, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976), reh. den. 425 U.S. 926, 96 S.Ct. 1524, 47 L.Ed.2d 772 (1976).
The operation of the highway is not an internal tribal affair-it is a public affair concerning Indians and non-Indians. It has nothing to do with tribal self-government-the tribe would never have built the highway and the use of the highway by its members is a very small percentage of the total use of it.
Beyond that, Congress did delegate the opening and establishment of the highway to the state “in accordance with state laws.” Such establishment is not a one-time construction job. It includes the continual maintenance and control of the highway, including traffic regulation and protection as necessary to the purpose of the highway, i. e., to provide the most rapid and convenient movement of traffic consistent with safety. The rules relative thereto must be enforced by the legal entity responsible for the highway and the safety of those using it.
In holding that a tribal Indian living on an Indian reservation was required to register his truck and pay a registration fee for its operation over a state highway within the reservation, the following language was used by the Wisconsin Supreme Court in State v. Tucker, 237 Wis. 310, 296 N.W. 645, 647 (1941), in applying the 1901 enactment:
“ * * * Such a grant includes by necessary implication the right of the state to take such possession of the land as will enable it to construct and repair and police the road, and to do all things necessary and incidental to the maintenance of a public highway. The fact that it is a public highway implies that no person, Indian or white, may possess, occupy or use it to the exclusion of the general public or use it except on the same terms and upon the same conditions as the general public. * * *
⅝! ⅜ * * ⅜ jfc
*1075“ * * * When a public highway operated by the state is the subject of the right of way, the control, policing and other regulations which are inseparable incidents to the maintenance of such a highway must pass to the state and with them, at least in the absence of a clear reservation, the jurisdiction to make them effective. * * * ”
The Wisconsin Supreme Court went much further in holding that the established road was no longer part of the reservation and that Indian title to it was voided. The United States District Court, Eastern District of Wisconsin, was critical of this holding as it applied to extinguishment of title. In a case dealing with the same road in Ex Parte Konaha, D.C.E.D.Wis., 43 F.Supp. 747, 748 (1942) the court expressed this criticism, but it acknowledged that:
“ * * * There might be some basis for the contention that the right to maintain a public highway necessarily extended to regulations reasonably required for the operation of vehicles thereon. * * * ”
On appeal of this case to the Court of Appeals, Seventh Circuit, the court said: “ * * * We believe the case before us
is materially different from the one before the Wisconsin Supreme Court. Our case deals with a crime, the punishment of a felony. The Wisconsin case dealt with a failure to register an automobile. Our case deals with the crime of manslaughter, covered by Federal statute. The Wisconsin case deals with the application of an automobile registration statute to an Indian member of the same reservation. * * *
* * * * * *
“ * * * It is true that the grant of a right to maintain a highway must carry with it certain implications respecting the protection of said highway against depredations. If, however, there were any implications arising therefrom which would subject the Indian members to the Wisconsin penal statutes, they would be limited to such penal provisions as served to protect and preserve the highway, such as speeding, impairing the highway, etc.” Application of Konaha, 7th Cir. 1942, 131 F.2d 737, 738, 739.
The United States Supreme Court spoke to the 1901 enactment in United States v. Oklahoma Gas & Electric Co., 318 U.S. 206, 63 S.Ct. 534, 87 L.Ed. 716 (1943). Respondent had been granted a license by the state to build and maintain rural electric service lines within the bounds of a right-of-way of a highway established across Indian lands in accordance with the 1901 enactment. The Court said at pages 536, 537 of 63 S.Ct.:
“It is not denied that under the laws of Oklahoma the use made of the highway by respondent, the State’s licensee, is a lawful and proper highway use, imposing no additional burden for which a grantor of the highway easement- would be entitled to compensation. But the Government denies that the Act of March 3, 1901, providing ‘for the opening and establishment of public highways, in accordance with the laws of the State or Territory in which the lands are situated,’ submits the scope of the highway use to state law. Its interpretation gives the Act a very limited meaning and substantially confines state law to. governing procedures for ‘opening and establishment’ of the highway. It offers as examples of what is permitted to state determination, whether a state or county agency builds the road, whether funds shall be raised by bond issue or otherwise, and the terms and specifications of the construction contract. The issue is between this narrow view of the State’s authority and the broader one which recognizes its laws as determining the various uses which go to make up the ‘public highway,’ opening and establishment of which are authorized.
“We see no reason to believe that Congress intended to grant to local authorities a power so limited in a matter so commonly subject to complete local control. '
“It is well settled that a conveyance by the United States of land which it owns beneficially or, as in this case, for the *1076purpose of exercising its guardianship over Indians, is to be construed, in the absence of any contrary indication of intention, according to the law of the State where the land lies. Presumably Congress intended that this case be decided by reference to some law, but the Government has cited and we know of no federal statutory or common-law rule for determining whether the running of the electric service lines here involved was a highway use. These considerations, as well as the explicit reference in the Act to state law in the matter of ‘establishment’ as well as of ‘opening’ the highway, indicate that the question in this case is to be answered by reference to that law, in the absence of any governing administrative ruling, statute, or dominating consideration of Congressional policy to the contrary. We find none of these.
* ⅜: * * * *
“In construing this statute as to the incidents of a highway grant we must bear in mind that the Act contemplated a conveyance to a public body, not to a private interest. There was not the reason to withhold continuing control over the uses of the strip that might be withheld wisely in a grant of indefinite duration to a private grantee. It is said that the use here permitted by the State is private and commercial, and so it is. But a license to use the highway by a carrier of passengers for hire, or by a motor freight line, would also be a private and commercial use in the same sense. And it has long been both customary and lawful to stimulate private self-interest and utilize the profit motive to get needful services performed for the public. The State appears to be doing no more than that.
* * * * * *
“The interpretation suggested by the Government is not shown to be necessary to the fulfillment of the policy of Congress to protect a less-favored people against their own improvidence or the overreaching of others; nor is it conceivable that it is necessary, for the Indians are subjected only to the same rule of law as are others in the State, and then only by permission of the Secretary, subject to compliance with ‘such requirements as he may deem necessary.’
“Oklahoma is spotted with restricted lands held in trust for Indian allottees. Complications and confusion would follow from applying to highways crossing or abutting such lands rules differing from those which obtain as to lands of non-Indians. We believe that if Congress had intended this it would have made its meaning clear.” (Emphasis supplied.)
Referring to the holding in United States v. Oklahoma Gas & Electric Co., supra, that a road opened and established pursuant to the 1901 enactment “was governed by state law,” the United States District Court of Montana used the following language in United States v. Mountain States Telephone and Telegraph Company, D.C.Mont., 434 F.Supp. 625, 627 (1977), in discussing the applicability of Montana’s constitutional provision renouncing jurisdiction over Indian tribal lands:3
“ * * * Congress, however, has plenary power over Indian lands and could grant to the states the right to build roads across Reservation lands and delineate the usage of such roads. The terms of the grant could be fixed in the congressional act or could be fixed by reference to state law. State law would then control, not because of the power of the state, but because of the congressional adoption of state law as the measure of the federal grant. * * * ”
The Tenth Circuit Court of Appeals referred to United States v. Oklahoma Gas & Electric Co., supra, in United States v. City of McAlester, Oklahoma, 10th Cir. 1979, 604 F.2d 42, 54, and said:
“Although federal law governs the conveyance of the tribal property, in the absence of a contrary statutory indication state law determines issues relating to *1077the scope of an easement over tribal property once granted. [Citation.] Thus we must focus primarily on Oklahoma law dealing with rights of the parties where such an easement exists.”
The case involved eminent domain power under the Curtis Act for a watershed and basin acquisition.
In this case, we are not called upon to determine the extent of jurisdiction conferred upon the state by virtue of the 1901 enactment vis-a-vis crimes committed on the highway having no relation to regular highway activity, safety or maintenance or vis-a-vis civil actions growing out of other than highway related activities, safety or maintenance. The facts of this ease concern the leaving of a gate open on highway fencing which was installed by the highway department to prevent such occurrences as here took place, i. e., relator’s horse allegedly went onto the highway and caused damages to a passing motorist. I would hold that such is within the purview of the jurisdiction conferred on the state by the 1901 enactment.
I would hold that such enactment confers jurisdiction on the state for all actions resulting from activities occurring on the highway having a relation to the purpose of the highway, i. e., safe movement of traffic. Many Wyoming laws pertain to this purpose, including general laws having to do with tort liability in operation of motor vehicles and per se negligence as results from violation of statutory laws. Of possible pertinency in this instance, are statutory laws enacted for maintenance of, and safety on, highways such as construction and repair of fences on highways (§ 24-1-112, W.S.1977), leaving gates open (§ 11-28-107, W.S.1977), and obstructing highways (§ 35-10-401, W.S.1977).4
This jurisdiction is not a result of a diminishment of the reservation area or of Indian country. It is simply a result of congressional action directing the application of state laws to matters on the highway having to do with its purpose. See quotation, supra, from United States v. Mountain States Telephone and Telegraph Company, 434 F.Supp. at 627.
Finally, I would note that this treatment of jurisdiction as conferred by the 1901 enactment is in recognition that that enactment provides for express application of state law upon approval of the establishment of the highway. Therefore, it is not in conflict with Williams v. Lee, supra, which premises its holding on the absence of “governing Acts of Congress” (see third paragraph under “The Supreme Court Case Law” heading of the majority opinion). Nor is it in conflict with the jurisdiction placed in the United States for offenses committed in Indian country by 18 U.S.C. § 1152 (1966) inasmuch as that section begins “Except as otherwise expressly provided by law * * 5
The grant of permission to “open and establish” this highway through the Indian reservation “in accordance with the laws of the state” is simply an application of common sense. The rules of the road should be enforced by the entity primarily responsible for the road.6 The deaths on our highways *1078exceed those caused by almost every other cause. The purpose of statutes regulating and effecting automobile traffic on our highways is to promote public safety. Zanetti Bus Lines, Inc. v. Logan, Wyo., 400 P.2d 482 (1965). State regulations are the motorists’ only protection upon highways maintained and patrolled by the state.7 The three “E’s” of traffic safety are engineering, education and enforcement. They must work in harmony. The Wyoming courts must have jurisdiction to enforce those laws which have for their purpose the control of highway-related safety, highway-related activities and highway-related maintenance, be they civil or criminal.
I would deny the petition for a writ of prohibition.
. H.R.Rep.No.2064, 56th Cong. 2d Sess. 3 (1900), refers to this provision as “ [providing for the opening of highways through * * * [Indian reservations] under State and Territorial laws * * (Bracketed material and emphasis supplied.)
. As examples of legislation: Vehicle registration laws, driver’s licensing laws, Safety-Responsibility Act. As examples of private activities: Insurance policies may have to set forth an exclusion for coverage of vehicles on this highway, causing diverting of traffic therefrom.
. Such a renunciation has been held to be a disclaimer of proprietary interest rather than governmental interest. Kake v. Egan, supra, 82 S.Ct. at 567.
. In other instances and perhaps in this instance, laws for maintenance of, and safety on, highways could include regulation of traffic on highways (§§ 31 5 101 through 31-5 1214, W.S.1977), Implied Consent Law (§§31 6 101 through 31 6 106, W.S.1977), Driver’s License Act (§§ 31 7 101 through 31 7-138, W.S. 1977), Safety Responsibility Act (§§ 31 9 101 through 31 9 414, W.S.1977), Uninsured Motor Vehicles (§§ 31 10 101 through 31-10-104, W.S.1977), Protection of Highways (§§ 31 12 101 through 31 12 206, W.S.1977), etc.
. There is no present effort to enlarge the present jurisdiction of federal courts. To the contrary, heavy dockets in such courts have resulted in congressional efforts to restrict some of the grounds for federal court jurisdiction, such as “diversity” requirements, to the end of transferring some cases from the federal court dockets to state court dockets.
.The incongruity of any other arrangement is illustrated by the David Lohnes case. He was an Indian. He was walking down the street on the Fort Totten Indian Reservation (no indication that the street was established pursuant to the 1901 enactment) when he was hit by a car being driven by another Indian. His action in state court was dismissed for lack of jurisdiction. He subsequently filed an action in the United States District Court, it was also dis*1078missed since jurisdiction was vested in the tribal court. Lohnes v. Cloud, D.C.N.D., 366 F.Supp. 619 (1973). The tribal court gave him. a judgment for $10,000. Lohnes petitioned for payment out of the North Dakota Unsatisfied Judgment Fund (Wyoming has the Uninsured Motor Vehicle Act for the same purpose). Payment was denied because the judgment was from tribal court. Lohnes v. Cloud, N.D., 254 N.W.2d 430 (1977).
. See §§ 31 2-103 and 31 2 104, W.S.1977.