July 30, 1979

Mr. Jon R. Erickson 
Deputy State's Attorney 
Brule County Courthouse 
Chamberlain, South Dakota 57325

Official Opinion No. 79-24

Sale of game fish taken by Indians within boundaries of reservation

Dear Mr. Erickson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

The Crow Creek Sioux Tribe has contracted with various tribal members to take game fish within the exterior boundaries of the Crow Creek Indian Reservation for the purpose of offering them for sale to commercial enterprises. 

SDCL 4-14-25 provides: 

It is a Class 2 misdemeanor to barter, sell, or offer for sale at any time any fish taken or killed in any of the waters of this state except as provided in § §  41-6-39 to 41-6-45, inclusive, § §  41-13-9 to 41-13-11, inclusive, and § § 41‑14­‑27 and 41-14-29.

Based on the above facts, you ask:

QUESTION: 

Would a non-Indian restaurant owner operating a restaurant outside the exterior boundaries of an Indian reservation violate SDCL 41-14-25 by purchasing and offering for sale game fish taken by Indians within the exterior boundaries of the Indian reservation?

In my opinion the above-cited statute clearly makes illegal any sale of game fish taken from “the waters of this state.”  The exceptions listed in the above-cited statute are inapplicable to this factual situation.

The question therefore becomes whether waters within the exterior boundaries of an Indian reservation may be considered “waters of this state” for the purposes of SDCL 41-14-25.

Congress and the United States Supreme Court have recognized that for some purposes, waters within the exterior boundaries of an Indian reservation are subject to state control; it is my opinion, therefore, that these waters may be considered “waters of this state” for the purposes of the above-cited statute.

In Puyallup Tribe v. Department of Game of Washington, 391 U.S. 392, 88 S.Ct. 1725 (1968), the Court held that the state could enforce reasonable regulation of on-reservation fishing in the interest of conservation.  State regulation for conservation purposes is also recognized on the Missouri River. The general authority to construct the dams built on the Missouri River is contained in the 1944 Flood Control Act, Public Law 78-534, 58 Stat. 887. Section 4 of that act provides:  “No use of any area to which this section applies shall be permitted which is inconsistent with the laws for the protection of fish and game of the State in which such area is situated.”  See also 1946 Flood Control Act, Public Law 79-526, §  4, 60 Stat. 641.

As SDCL 41-14-25 is intended to protect the supply of game fish within the state, it is a regulation for the purposes of conservation.  As Congress and the United States Supreme Court have recognized concurrent state jurisdiction in conservation areas, “state waters” for the purposes of SDCL 41-14-25 include all waters located in the state.  It is therefore my opinion that waters within the exterior boundaries of an Indian reservation may be considered 'state waters' for the purposes of fish conservation.  As the fish were taken in “state waters,” a non-Indian restaurant owner operating a restaurant outside the exterior boundaries of the reservation where the fish were taken would violate SDCL 41-14-25 by offering such fish for sale.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:RRH:esp