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Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Comm'n

Citation: 9 ELR 20106
No. No. 76-2161, 588 F.2d 75/(4th Cir., 11/30/1978)

The court affirms a lower court's ruling rejecting North Carolina's claim of authority to regulate fishing for trout by non-Indians on the plaintiff Band's reservation. Under the test established by the Supreme Court, state regulatory laws may preempt tribal regulation unless their application would frustrate tribal self-government or impair a right granted or reserved by federal law. Applying this test, the court determines than enforcement of the state's fishing license requirements cannot be permitted. Significant federal efforts to sustain the Indians' fishing program, including stocking of the reservation's streams, demonstrate an intent to preclude state regulation of nonmember fishing on the reservation. State regulation also frustrates the major tribal goal of financial self-sufficiency in that the Band would receive substantial revenues from fishing regulation but for the existence of the state licensing requirements. The court distinguishes this case from those where the state may have a substantial conservation interest in limiting the taking of wildlife, particularly where a species is sufficiently mobile to travel freely across reservation boundaries.

Counsel for Plaintiff
Ben O. Bridgers
P.O. Box 248, Sylva NC 28779
(704) 586-2121

Daniel Israel
Native American Rights Fund
1506 Broadway, Boulder CO 80302
(303) 447-8760

Sally N. Willett
Native American Rights Fund
1712 N St. NW, Washington DC 20036
(202) 785-4166

Counsel for Defendants
John A. Powell
304 Northwestern Bank Bldg., Asheville NC 28801
(704) 253-1492

Joined by Lay* and Russell, JJ.