696
Opinion of the Court
to undertake a new analysis of the Montana exceptions on remand as to the 18,000 acres, it did not pass upon the District Court's previous findings regarding the taken area as a whole. See 949 F. 2d, at 995. Thus, we leave this to be resolved on remand.
Finally, respondents contend that Army Corps regulations permit the Tribe to regulate non-Indian hunting and fishing. Although Congress abrogated the Tribe's right to regulatory control in the taken area through the Flood Control and Cheyenne River Acts, it gave primary regulatory authority over the water project lands to the Army Corps of Engineers. 16 U. S. C. § 460d. See 36 CFR § 327.1(a) (1992). The Corps has authority to promulgate regulations "not inconsistent with . . . treaties and Federal laws and regulations" concerning "the rights of Indian Nations." § 327.1(f). The Corps permits "[h]unting, fishing and trapping . . . except in areas where prohibited by the District Engineer." § 327.8. This regulation provides that "[a]ll Federal, state and local laws governing these activities apply on project lands and waters, as regulated by authorized enforcement officials." Ibid. (emphasis added). See also § 327.26. Respondents argue that these regulations "not only allow for tribal regulation of hunting and fishing, they affirmatively establish the primacy of tribal treaty rights over both public use rights and state and federal regulatory interests." Brief for Respondents 33 (emphasis in original) (footnote omitted). Insisting that "tribal" law is a subset of "local" law, respondents contend that the Tribe's hunting and fishing laws apply to all who pass through the taken area. Id., at 33, n. 39.
Respondents did not rely on the Army Corps' regulations in the proceedings below. And although the United States as amicus curiae asserted at oral argument that § 327.8 leaves all pre-existing state, local, and tribal hunting and fishing regulations in effect on project lands, see Tr. of Oral Arg. 50, it did not even mention the Army Corps regulation
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007