Full opinion text
MEMORANDUM OPINION JENKINS, District Judge. This is an appeal from the Magistrate’s determination that Oranna B. Felter was fishing within the Uintah and Ouray Indian Reservation in violation of 18 U.S.C. § 1165 (1976). That section reads as follows: § 1165. Hunting, trapping, or fishing on Indian land Whoever, without lawful authority or permission willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited. At trial before the Magistrate, the parties were in agreement as to material facts: On July 6, 1980, a federal misdemeanor citation was issued to Oranna B. Felter by Carlin Cuch for fishing at the Bottle Hollow Reservoir within Indian country and upon lands held by the United States in trust for the Ute Indian Tribe, without a tribal permit. The defendant does not deny fishing at that time and place, but asserts a legal right to do so which would negate any liability for violation of § 1165. The defendant, formerly an enrolled member of the Ute Indian Tribe, is one of a number of Indians terminated from that status by Congress in the years following 1954. See Part I, infra. She asserted in proceedings before the Magistrate and again asserts here that she retains a right to fish within the Ute reservation notwithstanding the effect of the termination legislation. Following the hearing and arguments presented below by counsel, the Magistrate determined that whatever fishing rights Oranna B. Felter had possessed as a tribal member were extinguished through the process of termination. The defendant now appeals from that determination. The parties have submitted briefs. On November 13,1981, counsel appeared before this Court and presented arguments. At that time, this Court took the appeal under advisement. The Memorandum and Decision of the Magistrate entered in this case reflects care and effort in drafting and is here affirmed in many respects. However, following a careful review of the record herein, the governing legal authorities and the arguments of counsel here and before the Magistrate, this Court finds reversible error in narrow but decisive aspects of the Magistrate’s decision. I. TERMINATION In the 1950’s Congress embarked upon an experimental approach to federal Indian policy. In an effort to reduce federal involvement and expenditure in Indian affairs, Congress terminated federal supervision and services in relation to specific tribes or groups of Indians. See Wilkinson & Biggs, “The Evolution of the Termination Policy,” 5 American Indian L.Rev. 139', 145-165 (1977). Among those terminated by Congress were the “mixed blood” Utes, a group comprising approximately one-quarter of the Ute Indian Tribe of the Uintah-Ouray Reservation as it existed at that time. It is important to note that “termination” does not mean that someone’s identity as an Indian is ended. Cf. United States v. Heath, 509 F.2d 16 (9th Cir. 1974). Rather, what is terminated is (1) eligibility for federal services made available to those recognized as “Indian,” and (2) the duties and powers invested in the United States regarding the management of their affairs, or their property. Termination legislation ends a relationship between the federal government and specific persons. It is a question of non-recognition or recognition at law of a status, not a denial of one’s personal history or heritage. This distinction is borne out in subsequent action taken by Congress in relation to various “terminated” Indians. In the Indian Education Act, for example, the term “Indian” is defined to include “a member of a tribe, band, or other organized group of Indians, including those tribes, bands or groups terminated since 1940 ...” Act of June 23,1972, Pub.L. 92-318, Title IV, § 453, 86 Stat. 345, now codified at 20 U.S.C. § 1221h (supp. 1981) (emphasis added). “Terminated” Indians are counted with the unterminated for recordkeeping and providing of services under Title IV Indian education programs. See also American Indian Policy Review Comm’n, Report of Task Force on Terminated and Non-Federally Recognized Indians 1665-1670 (Comm, print 1976). As to specific groups, Congress has restored federal recognition, responsibilities and services through subsequent legislation. See Act of April 3, 1980, Pub.L. 96-227, 94 Stat. 317, now codified at 25 U.S.C. §§ 761 et seq. (supp. 1981) (the “Paiute Indian Tribe of Utah Restoration Act”); Act of Nov. 18, 1977, Pub.L. 95-195, 91 Stat. 1415, now codified at 25 U.S.C. §§ 711 et seq. (the “Siletz Indian Tribe Restoration Act”); Act of May 15, 1978, Pub.L. 95-281, 92 Stat. 246, now codified at 25 U.S.C. §§ 861 et seq. (supp. 1981) (restoration of four terminated Oklahoma tribes); Act of Dec. 22, 1973, Pub.L. 93-197, 87 Stat. 770, now codified at 25 U.S.C. § 903 et seq. (the “Menominee Restoration Act”). A congressional study commission has recommended that other groups terminated be restored to federal status as well. See I American Indian Policy Review Comm’n, Final Report 453-454 (Comm, print 1977). Termination, therefore, does not equate with the destruction in fact of tribal or Indian identity, nor does it equate with the uncompensated extinguishing of vested rights in property protected by the United States Constitution. The termination policy has been discredited in the eyes of both Congress and the Indians. See e.g., “Menominee Restoration Act,” Hearings on S. 1687 before Subcomm. on Indian Affairs of the Senate Comm, on Interior and Insular Affairs, 93d Cong. 1st Sess. (1973); “Menominee Restoration Act,” Hearings on H.R. 7421 before Subcomm. on Indian Affairs of the House Comm, on Interior and Insular Affairs, 93d Cong. 1st Sess. (1973); Wilkinson & Biggs: “The Evolution of Termination Policy,” 5 American Indian L.Rev. 139, 162-166 (1977). Even though it is against this background that the language of the Ute Termination Act must be construed, any reading of its terms is governed “by that ‘eminently sound and vital canon’, Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 655 n.7, 96 S.Ct. 1793, 1797 n.7, 48 L.Ed.2d 274 (1976), that ‘statutes passed for the benefit of dependent Indian tribes ... are to be liberally construed, doubtful expressions being resolved in favor of the Indians.’ Alaska Pacific Fisheries v. United States, 248 U.S. 78, 84, 39 S.Ct. 40, 63 L.Ed. 138 (1918).” Bryan v. Itasca County, Minn., 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976). In determining congressional intent, we are cautioned to follow “the general rule that ‘[djoubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith’,” McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973), quoting Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586, 97 S.Ct. 1361, 1362, 51 L.Ed.2d 660 (1977); Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1154 (D.Utah 1981) and cases cited therein. In this context, courts are “extremely reluctant” to find abrogation of vested Indian rights by Congress absent explicit statutory language. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 690, 99 S.Ct. 3055, 3076, 61 L.Ed.2d 823 (1979). II. THE UTE TERMINATION ACT Pursuant to the Act of August 27, 1954, ch. 1009, 68 Stat. 868, now codified at 25 U.S.C. §§ 677-677aa (1976), the Ute Tribe was divided into two groups: those who possessed by ancestry one-half degree Ute Indian heritage and a total Indian blood quantum greater than one-half, and those who did not. 25 U.S.C. § 677c (1976). Rolls were to be prepared, listing the membership of each group. Following publication of the final rolls in the Federal Register, the Ute Indian Tribe was to consist only of those enrolled as “full-blood” members. 25 U.S.C. §§ 677d, 677g (1976). Also following such publication, both groups were to commence “a division of the assets of the tribe that are then susceptible to equitable and practicable distribution,” 25 U.S.C. § 677i (1976), which would then be distributed in some manner to individuals, 25 U.S.C. § 677 (1976); “all unadjudicated or unliquidated claims against the United States, all gas, oil, and mineral rights of every kind, and all other assets not susceptible to equitable and practicable distribution shall be managed jointly by the Tribal Business Committee and the authorized representatives of the mixed-blood group, ...” Net proceeds from the undivided assets were to be apportioned according to the ratio of persons on each roll. 25 U.S.C. § 677i. Following distribution of the assets, property held by mixed-blood individuals or mixed-blood corporate entities was to be released from trust or restricted status and patented to the individual or corporate owner. 25 U.S.C. § 677o (1976). Section 23 of the Act, 25 U.S.C. § 677v, provides as follows: Upon removal of Federal restrictions on the property of each individual mixed-blood member of the tribe, the Secretary shall publish in the Federal Register a proclamation declaring that the Federal trust relationship to such individual is terminated. Thereafter, such individual shall not be entitled to any of the services performed for Indians because of his status as an Indian. All statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to such member over which supervision has been terminated, and the laws of the several States shall apply to such member in the same manner as they apply to other citizens within their jurisdiction. Other sections of the Act dealt with tax exemptions, water rights, alienability of individual shares, protection of the rights of minors, and certain administrative problems. See generally 25 U.S.C. §§ 677-677aa. On August 24, 1961, the Secretary of the Interior issued the proclamation removing restrictions on mixed-blood property and terminating federal recognition of and trust responsibilities to the mixed-blood Ute Indians. 26 Fed.Reg. 8042 (August 24, 1961), VII C. Kappler, Indian Affairs: Laws and Treaties 1840 (1979). Termination of the mixed-blood Utes under the Act of August 27, 1954 has led to extensive' litigation. See Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 5. Ct. 1456, 31 L.Ed.2d 741 (1972); Hackford v. First Security Bank of Utah, N.A., 521 F.Supp. 541 (D.Utah 1981); Ute Indian Tribe of the Uintah and Ouray Reservation v. Probst, 428 F.2d 491 (10th Cir. 1970), cert. denied 400 U.S. 926, 91 S.Ct. 189, 27 L.Ed.2d 186; Miera v. First Security Bank of Utah, N.A., No. C 126-73 (filed Apr. 20, 1973). However, this is the first time the fishing rights issue by itself has been raised to this level of controversy. The Ute Termination Act is silent on the subject of hunting and fishing rights. The Act has been amended three times. See Act of Aug. 2, 1956, Pub.L. 84-920, 70 Stat. 936; Act of Sept. 25, 1962, Pub.L. 87-698, 76 Stat. 597; Act of Jan. 2, 1975, Pub.L. 93-608, § 1(15), 88 Stat. 1969. None of these amendments deal with fish and game. An amendment dealing with fishing and hunting rights was suggested in 1960, but did not result in any substantial action. See letter of M. M. Zollar to F. H. Haverland, Area Director, of Mar. 2, 1960; letter in response, Mar. 15, 1960, plaintiff’s Exhibits P & Q. The legislative history of the Act as well offers no meaningful illumination of the question. See Sen.Rep.No. 1632, 83d Cong., 2d Sess. (1954); H.Rep.No.2493, 83d Cong., 2d Sess. (1954). It must be determined by inference whether the mixed-blood Utes retain their hunting and fishing rights as do tribal members, or have lost them through termination. If retained, this Court must determine whether they provide a complete defense to the Government’s complaint herein; if lost, this Court must determine where they went. Contemporaneous administrative construction of a statute, often a helpful source for interpretation of ambiguous language, see e.g., E. I. duPont de Nemours & Co. v. Collins, 432 U.S. 46, 54-55, 97 S.Ct. 2229, 2234, 53 L.Ed.2d 100 (1977); Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 660, 96 S.Ct. 1793, 1799, 48 L.Ed.2d 274 (1976), has been offered here through some of the documents found in the record. The persuasive force of the view expressed by officials of the Bureau of Indian Affairs and others during the early years of the Ute termination program on the subject of hunting and fishing rights is severely limited by the confusion and contradictions reflected in the documents. The administrative treatment of the hunting and fishing question in the 1950’s reflects a number of efforts to grapple with the problem, but without a consistent theoretical basis for the views expressed. At one time the hunting and fishing rights are deemed partitioned as appurtenances to the various lands distributed to the mixed-bloods, yet are not represented in the mixed-bloods’ individual shares in the two range corporations established to possess and manage these lands. At other times, the mixed-blood hunting and fishing rights are thought to be extinguished by the termination of federal trust responsibility alone, or by the extension of state jurisdiction over the mixed-bloods, and yet are claimed in court proceedings as having been repurchased by the Ute Indian Tribe in transactions with the mixed-bloods. Further, the view was expressed by officers that patenting of lands to the mixed-blood corporations would transfer control to the state of Utah and extinguish any special entitlement to hunt or fish that the mixed-bloods might have, yet an agreement was proposed between the state and the mixed-bloods by which the state would assume control of fish and game on the patented lands in consideration for allowing free hunting and fishing privileges to the mixed-bloods. Finally, the view was expressed that hunting and fishing rights, as an accouterment of tribal membership, were not distributed at all, yet no explanation is given as to why such rights should not be deemed assets “not susceptible to equitable and practicable distribution” brought under joint management of the tribe and the Affiliated Utes by 25 U.S.C. § 677i (1976). This Court acknowledges “the settled principle that administrative interpretations of statutes are entitled to great weight,” Wilderness Society v. Morton, 479 F.2d 842, 864 (D.C.Cir.1973) (en banc); see Northern Cheyenne Tribe v. Hollowbreast, supra; Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1973); Volkswagen werk Aktiengesellschaft v. F.M.C., 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), particularly as to administrative constructions contemporaneous with the legislation itself. See Leary v. U. S., 395 U.S. 6, 25, 89 S.Ct. 1532, 1542, 23 L.Ed.2d 57 (1969). Such administrative construction of a statute, however, “is only one input in the interpretational equation.” Zuber v. Allen, 396 U.S. 168, 192 (1969). A court should defer to an administrative construction only if there are no “compelling indications that it is wrong.” Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). Courts are final authorities on questions of the interpretation of statutes and are not bound to follow administrative determinations that are found to be inconsistent with the statutory mandate or that frustrate congressional policy underlying a statute. See Federal Maritime Comm’n v. Seatrain Line, Inc., 411 U.S. 726, 745, 93 S.Ct. 1773, 1784, 36 L.Ed.2d 620 (1973); S.E.C. v. Sloan, 436 U.S. 103, 117-118, 98 S.Ct. 1702, 1711, 56 L.Ed.2d 148 (1978); Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94-95, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1979); F.T.C. v. Colgate Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965); N.L.R.B. v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965); Plateau, Inc. v. Department of the Interior, 603 F.2d 161, 164 (10th Cir. 1979). In this case, the administrative interpretations of the Ute Termination Act as to hunting and fishing are in conflict with each other and find little or no support in the Act itself. They conflict as well with settled principles of law governing such questions, and consequently were afforded little weight, if any, in this Court’s consideration of the questions presented. III. THE GOVERNMENT’S POSITION The Government asserts that the defendant’s claim of right should be denied for any of several reasons: (1) the defense is barred in this action by collateral estoppel; (2) that any such rights were extinguished by the final termination of the mixed-blood Utes in 1961 under 25 U.S.C. § 677v; (3) that any such rights were partitioned and distributed as appurtenant to the lands taken by the Affiliated Ute corporations, excluding the mixed-bloods from exercising such rights on lands retained by the full-bloods; and (4) that not having been distributed to the corporations nor retained as an asset under joint management, the rights, if any, simply dissipated through the process of termination itself. A. Collateral Estoppel The Government first argues that the issues of mixed-blood Ute hunting and fishing rights were litigated and decided in the Court of Claims in 1977, and that the Court of Claims’ disposition precludes litigation of the same issue in this action. In Affiliated Ute Citizens v. United States, No. 156-69 (Ct.Cl. filed Mar. 14, 1969), the mixed-blood Utes sought either compensation for a range of rights lost through termination, including hunting and fishing rights, or a declaration that the rights in question remained in the mixed-blood Utes in spite of termination. Of primary concern in that action was whether the bar of the statute of limitations, 28 U.S.C. § 2501, prevented adjudication of the mixed-blood claims. In 1972, the Court of Claims held the claims as to most assets to be barred by the six-year statute, but reserved on the question as to water, hunting, fishing and timber rights. See id., 199 Ct.Cl. 1004 (1972). Upon further development of the record, that court dismissed the remaining claims on statute of limitations grounds as well. In pertinent part, the court’s order of October 28, 1977 read as follows: We find nothing in the record to shake our conviction that any acts for which the federal government might have been liable occurred by 1961, leaving plaintiffs’ 1969 filing untimely. The purpose of the termination act was to end the tribal status of mixed-blood Utes and to convert their status to that of ordinary American citizens. The division and distribution of assets of which plaintiffs complain were effected by 1961, all intangible assets being conveyed either in the form of shares in the Ute Distribution Corporation or as appurtenant to land; whatever claims plaintiffs may have had matured then and became barred by the statute of limitations in 1967.... In short, plaintiffs have pointed to no evidence, and we can find none ourselves, establishing a continual federal responsibility for claimed assets of the mixed-bloods beyond the time of the termination proclamation [1961]. id., 215 Ct.Cl. 935, 936, 566 F.2d 1191 (1977). The mixed-blood Utes’ claim, if any, against the United States for any taking of hunting and fishing rights was thus barred as arising, if at all, more than six years before the filing of the complaint in 1969. However, the Government urges here, as it argued below, that the dismissal of the Affiliated Ute claim was tantamount to a declaratory judgment that the mixed-blood Utes’ hunting and fishing rights had indeed been taken, giving rise to a claim that is now barred. If such is not the case, counsel reasons, why didn’t the Court of Claims rule that there was no claim because the rights were not taken? How could a non-existent claim be barred? This approach, while perhaps appealing at first glance, fundamentally misapprehends the nature of the Court of Claims’ disposition of the Affiliated Ute case. The Court of Claims is granted jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort,” 28 U.S.C. § 1491 (1976), provided that the plaintiff’s claim petition is filed “within six years after such claim first accrues.” 28 U.S.C. § 2501 (1976). Cases falling outside of those express limitations are beyond the jurisdiction of the Court of Claims. As the United States Court of Appeals for the Tenth Circuit has said, The essential inquiry in any case where the conclusive effect of an order or judgment is pleaded, is thus whether the critical issue was within the power and authority conferred upon the first tribunal to which the issue was tendered, and whether the matter pleaded as collateral estoppel was actually adjudicated..... Tidewater Oil Co. v. Jackson, 320 F.2d 157, 161 (10th Cir. 1963), cert. denied, 375 U.S. 942, 84 S.Ct. 347, 11 L.Ed.2d 273 (1963). A claim tendered to the Court of Claims more than six years after it accrues, regardless of its ultimate merit, is beyond the authority conferred on that court. The statute of limitations is not merely a bar to litigation of meritorious claims older than six years, it bars all claims, regardless of the probability that one party or the other will ultimately prevail. To accept the Government’s argument would be to place upon a party raising the defense of the statute of limitations the additional burden of showing that the opposing party indeed raises a meritorious substantive claim that is so barred. There is no support in the Judicial Code or the case law for such a view. See e.g., Warner v. Buffalo Drydock Co., 67 F.2d 540, 541, 543 (2d Cir. 1933), cert. denied, 291 U.S. 678, 54 S.Ct. 529, 78 L.Ed. 1066 (1934); IB Moore’s Federal Practice ¶ 0.409[6] (2d ed. rev. 1981); see also Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965). Any notion that the Court of Claims could extend its jurisdiction to grant a declaratory judgment as to the continued existence of the mixed-blood Utes’ right in spite of the six-year limitations period is dispelled by United States v. King, 395 U.S. 1, 5, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969) in which the Supreme Court unanimously held the Court of Claims to be without power to grant declaratory judgments. The Court of Claims is empowered to hear money claims against the United States. The sense of its 1977 order in the Affiliated Ute case is that if the mixed-bloods had any money claims at all arising out of the Government’s termination actions, they accrued more than six years before that action was commenced. That determination precluded that court from concluding anything more. The defendant, therefore, is not precluded by collateral estoppel from raising the question of the continued existence of those rights in this forum. This Court has previously held that the Court of Claims did not determine the substantive status of the mixed-blood hunting and fishing rights and sees no reason to now retreat from that view. See Hackford v. First Security Bank of Utah, N.A., 521 F.Supp. 541, 557-558 (D.Utah 1981). • B. Extinguishment Under 25 U.S.C. § 677v The Government concedes that the Ute Indian Tribe possesses hunting and fishing rights recognized by the Act of Congress confirming the establishment of Uintah Indian Reservation (now the Uintah-Ouray Indian Reservation) in 1864. See Act of May 5, 1864, ch. 77, 13 Stat. 63. Yet the parties have devoted considerable attention to whether the Utes existing hunting and fishing rights are “aboriginal” in origin or are a product of legislative grant. If “aboriginal,” the defendant argues, congressional abrogation of those rights “cannot be lightly implied,” particularly in the absence of a clear expression of legislative intent that they be extinguished. United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 354, 62 S.Ct. 248, 255, 86 L.Ed. 260 (1941); United States v. Truckee-Carson Irrigation Disk, 649 F.2d 1286, 1298 (9th Cir. 1981); cf. State v. Coffee, 97 Idaho 905, 556 P.2d 1185 (1976). In contrast, the Government asserts that any rights the defendant may have had derive from the 1864 Act and were extinguished by 25 U.S.C. § 677v, which provides that “all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to” the mixed-bloods. This argument of origin, while of historical interest, has no bearing on the issues to be resolved in this case. Both sides agree that the Utes possess tribal hunting and fishing rights and that the 1864 Act implicitly recognizes that fact. The standards for determining whether Congress has abrogated Indian property rights are no less stringent as to rights recognized in legislation than they are as to aboriginal rights under Santa Fe and similar cases. See Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 690, 99 S.Ct. 3055, 3076, 61 L.Ed.2d 823 (1979); Antoine v. State of Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975); United States v. Truckee-Carson Irrigation District, supra; Annot., 41 A.L.R. Fed. 425 (1979); Wilkinson & Volkman, “Judicial Review of Indian Treaty Abrogation,” 63 Cal.L.Rev. 601, 623-633 (1975). Two cases relied upon by the defendant, Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), and Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974), cert. denied, 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 and 590 F.2d 768 (9th Cir. 1979) cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33, have applied to the 1954 termination statutes the same rules of construction applied to other legislation affecting Indians. See Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1154 (D.Utah 1981). In each case the courts found no clear expression of congressional intent that the Menominee or the Klamath tribal hunting and fishing rights be abrogated as part of the termination process. Consequently both courts held that the Indians of each group still possessed tribal hunting and fishing rights, notwithstanding even the individuals’ withdrawal from tribal membership, as in the Kimball case. See Kimball v. Callahan, supra, 590 F.2d at 773. The Government seeks to distinguish this case from the Menominee and Kimball cases by pointing out that in both of the earlier cases the rights in question were recognized by treaty while the Utes’ fish and game rights are recognized by act of Congress. The 1864 Act confirming the establishment of the Ute reservation, the Government asserts, is among those whose effect in relation to the mixed-bloods was to be ended by 25 U.S.C. § 677v. In effect, the Government asserts that a legislative instrument of a policy intended to reduce federal expenditures and supervisory responsibility in Indian affairs silently extinguished vested Indian property rights if recognized by act of Congress, but not if the rights are recognized by treaty. Language in a treaty would thus afford greater protection for Indian rights than equivalent language' in an act of Congress. The Magistrate found the results of this distinction to be “admittedly anomalous,” and justifiably so. Magistrate’s Memorandum and Decision, at 8. Treaties and acts of Congress are constitutional equivalents. See U.S.Const., Art. 6, ¶ 2; L. Tribe, American Constitutional Law § 4-4, at 168 (1978). Long ago, Chief Justice John Marshall declared that a treaty, ratified pursuant to constitutional procedures, must “be regarded in courts of justice as equivalent to an act of the legislature,” if self-executing in form. Foster v. Nielson, 27 U.S. (2 Ret.) 253, 314, 7 L.Ed. 415 (1829). If there is an irreconcilable conflict between language of a treaty and an act of Congress, the enactment that is later in time prevails. See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 600, 9 S.Ct. 623, 627, 32 L.Ed. 1068 (1889); Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888); The Head Money Cases, 112 U.S. 580, 599, 5 S.Ct. 247, 254, 28 L.Ed. 798 (1884); P. Freund, et al., Constitutional Law 694-695 (4th ed. 1977). Both treaties and acts of Congress are subject to constitutional limitations on the exercise of federal power. See e.g., Reid v. Covert, 354 U.S. 1, 18, 77 S.Ct. 1222, 1231, 1 L.Ed.2d 1148 (1957) (treaties); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) (acts). Even as to Indian reservations, creation by treaty or by act of Congress are functional equivalents. See F. Cohen, Handbook of Federal Indian Law 294-299 (1942 ed.). Congress can create a reservation, reserve rights to. the Indians and dispose of federal lands by statute as well as by treaty; whether a treaty or statute is read to create a specific right depends on its language and purpose. See Hynes v. Grimes Packing Co., 337 U.S. 86, 103-104 & n. 23, 69 S.Ct. 968, 979 & n. 23, 93 L.Ed. 1231 (1949); Confederated Band of Ute Indians v. United States, 330 U.S. 169, 67 S.Ct. 650, 91 L.Ed. 823 (1947). As one United States Court of Appeals recently commented: We do not think that the distinction between a treaty and a statute has great significance. Before 1871, relations between the United States and Indians were frequently established by treaties with Indian nations which were held to be independent sovereign powers under the protection of the United States. E.g., Worcester v. Georgia, 1832, 31 U.S. (6 Pet.) 515, 559-560, 8 L.Ed. 483. In 1871, Congress determined that “no Indian or tribe within the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty. . . . ” 16 Stat. 566, now 25 U.S.C. § 71. However, first, both treaties and statutes are the supreme law of the land. Const. Art. VI, cl. 2. Second, the real power had lain with the United States alone long before 1871. Some at least of the treaties were the embodiment of orders imposed on Indians by the Executive. On occasion the United States invented tribes and appointed their chiefs. Washington v. Washington State Commercial Fishing Vessel Association, 1979, 443 U.S. 658, 664 n.5, 99 S.Ct. 3055, 3064 n.5, 61 L.Ed.2d 823. Third, the change from treaty to statute was at least in part the result of political infighting in Congress. The House was excluded from the treaty making process under Const. Art. II, § 2, cl. 2, and it wished to have a greater say in Indian policies. Antoine v. Washington, 1975, 420 U.S. 194, 202, 95 S.Ct. 944, 949, 43 L.Ed.2d 129. Fourth, as regards Indians, there is no clear cut distinction between treaties and statutes, nor any clear division between what was done by treaty and what was done by statute. Both treaties and statutes were worded in a wide variety of ways, some explicitly granting fee simple interests to tribes, some explicitly granting only Indian title (a right of occupancy at the pleasure of the United States), some saying no more than that land was reserved for Indian occupancy, some expressly reserving or granting rights, some silent on the subject. United States Department of the Interior, Federal Indian Law, 601-622 (1958). Finally, it is clear that Congress has the power to cancel unilaterally rights granted by Indian treaty. Lone Wolf v. Hitchcock, 1903, 187 U.S. 553-566, 23 S.Ct. 216-21, 47 L.Ed. 299; The Cherokee Tobacco, 1871, 78 [8] U.S. (11 Wall) 616, 621, 20 L.Ed. 227. For all of these reasons we believe that whether the source of a right is in a treaty or in a statute is of little contemporary relevance. Blake v. Arnett, 663 F.2d 906, 909-910 (9th Cir. 1981). Prior cases evidence an identical view. In Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975), for example, the Supreme Court held that an Act of Congress ratifying an agreement with the Colville Indians secured hunting rights under that agreement as firmly as if guaranteed by treaty. In Arizona v. California, 373 U.S. 546, 594-601, 83 S.Ct. 1468, 1494-1498, 10 L.Ed.2d 542 (1963), the Court recognized reserved water rights for reservations created by Act of Congress and Executive Order that are equivalent to those secured for treaty reservations. Compare Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), and see Pelcyger, “The Winters Doctrine and the Greening of the Reservations,” 4 J.Contemp.L. 19 (1977). Concerning Fifth Amendment protection of Indian property rights, the courts have treated recognition through treaty or statute as having equal force. “[W]here lands have been reserved for the use and occupation of an Indian Tribe by the terms of a treaty or statute, the tribe must be compensated if the lands are subsequently taken from them.” Sioux Tribe of Indians v. United States, 316 U.S. 317, 326, 62 S.Ct. 1095, 1099, 86 L.Ed. 1501 (1942) (emphasis added and citations omitted); see Sioux Nation of Indians v. United States, 220 Ct.Cl. 442, 601 F.2d 1157 (Ct.Cl.) affirmed; 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980); Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 277, 75 S.Ct. 313, 316, 99 L.Ed. 314 (1955); United States v. Creek Nation, 295 U.S. 103, 55 S.Ct. 681, 79 L.Ed. 1331 (1935); Strong v. United States, 518 F.2d 556, 563 (Ct.Cl.1975); Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 911 (Ct.Cl.1963). Recognized title is constitutionally protected title. “Congress, acting through a treaty or statute, must be the source of such recognition, . . . . ” and if recognition of a specific right is given expressly or by implication, constitutional limits govern the termination or extinguishment of that right. Sac and Fox Tribe of Indians of Oklahoma v. United States, 315 F.2d 896, 897 (Ct.Cl.1963); see United States v. Sioux Nation of Indians, 448 U.S. 371, 415, 100 S.Ct. 2716, 2740, 65 L.Ed.2d 844 (1980); Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Shoshone Tribe of Indians v. United States, 304 U.S. 111, 118, 58 S.Ct. 794, 798, 82 L.Ed. 1213 (1935); United States v. Klamath and Moadoc Tribes of Indians, 304 U.S. 119, 123, 58 S.Ct. 799, 801, 82 L.Ed. 1219 (1938); cf. United States v. Jim, 409 U.S. 80, 93 S.Ct. 261, 34 L.Ed.2d 282 (1972). But the Government’s argument in this case would drive a wedge of artificial distinction between those Indian property rights recognized by Act of Congress and those recognized by treaty, a distinction neither identified by prior court decision, nor of practical or constitutional utility. As in Menominee Tribe v. United States and Kimball v. Callahan, supra, the question raised here is whether Congress intended to take Indian hunting and fishing rights through the termination legislation it enacted. The Supreme Court said of the statutory language in Menominee, The provision of the Termination Act (25 U.S.C. § 899) that “all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe” plainly refers to the termination of federal supervision. The use of the words “statute” is potent evidence that no treaty was in mind. Id., 391 U.S. 412, 88 S.Ct. at 1710 (emphasis in original). The § 677v limitation of “statutes” to those “which affect Indians because of their status as Indians” is equally potent evidence that § 677v terminates the mixed-blood Utes’ entitlement to federal services as “Indians,” as well as federal jurisdiction over them as “Indians,” but leaves their interests in recognized tribal property for determination pursuant to other provisions such as § 677i, if at all. This reading is in harmony with the central purposes of the termination legislation and the text of the Act itself. Like the Supreme Court in Menominee, this Court will readily “decline to construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians,” id., 391 U.S. at 412, 88 S.Ct. at 1710, at least under § 677v. This reading of that section is further supported by legislation contemporaneous with the termination acts. In Menominee, for example, the Supreme Court construed the termination act in that case in pari materia with Public Law 83-280, Act of August 15, 1953, ch. 505, 67 Stat. 588, an act of general application that provided for assumption by the states of civil and criminal jurisdiction over “Indian Country,” i.e., land within federal Indian reservations, Indian allotments, or dependent Indian communities. See Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979); Bryan v. Itasca County, Minn., 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976); Kennerly v. District Court, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971); Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975). Though Public Law 280 is not an example of termination legislation, see Washington v. Yakima Indian Nation, supra, 439 U.S. at 489 n.32, 99 S.Ct. at 755 n.32, it was certainly “intended to facilitate, not to impede, the transfer of jurisdictional responsibility to the states,” wholly consistent with the termination policy. Id., 439 U.S. at 490, 99 S.Ct. at 756; see Goldberg, “Public Law 280: The Limits of State Jurisdiction over Reservation Indians,” 22 U.C.L.A.L.Rev. 535 (1974); 1 American Indian Policy Review Comm’n, Final Report 199-200 (Comm, print 1977). Of most significance in Menominee and in this case, however, are the express limitations set forth in the Act concerning state assumption of jurisdiction. Section 2(b) of that Act provides as follows: (b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof. 18 U.S.C. § 1162(b) (1976) (emphasis added). Similar language was found in § 4(b) of that Act. In Menominee, the Supreme Court construed the quoted language of Public Law 280 m pan materia with the Menominee Termination Act. The same Congress that had passed the Termination Act had enacted Public Law 280; in fact it came out of the same House and Senate committees that produced the termination legislation. Id., 391 U.S. at 410-411, 88 S.Ct. at 1709. Finally, at the time Public Law 280 went into effect it was applicable to the Menominee reservation. Public Law 280 must therefore be considered in pari materia with the Termination Act. The two acts read together mean to us that, although federal supervision of the tribe was to cease and all tribal property was to be transferred to new hands, the hunting and fishing rights granted or preserved by the Wolf River Treaty of 1954 survived the Termination Act of 1954. Id., 391 U.S. at 411, 88 S.Ct. at 1710 (footnote omitted). At page 8 of the Magistrate’s Opinion it is reported that as originally enacted, “Wisconsin, where the Menominee Reservation was located, was not included as one of the designated states” [for mandatory assumption' of Public Law 280 jurisdiction.] Then two months after passage of the Menominee Termination Act Public Law 280 was amended to include Wisconsin. Therefore, by its amendment the Congress removed the Menominee Indian hunting, fishing and trapping rights from the application of Section 899 of the Menominee Termination Act,” a section nearly identical to § 677v of the Ute Termination Act. See p. 1006, supra. This is erroneous both in fact and law. Wisconsin was always a “mandatory” P.L. 280 state; a 1954 amendment eliminated an exclusion of the Menominee Reservation from P.L. 280 coverage. See Act of Aug. 24, 1954, 68 Stat. 795; Menominee Tribe of Indians v. United States, supra, 391 U.S. at 410 n.11, 88 S.Ct. at 1709 n.11. Nothing in Menominee indicates that it was the Court’s view that Public Law 280 removed from the operation of § 899 right that would otherwise be affected. Rather, the language of Public Law 280 was additional evidence that Congress did not intend to extinguish those rights in the process of transferring supervision to the states in the first place. Statutes are construed in pari materia — as relating to the same subject matter — when they “are closely related, were adopted close together in point of time, and were part of the same legislative program.” Weber v. C.M.P. Corp., 242 F.Supp. 321, 325 (S.D.N.Y.1965). “It is clear that ‘all acts in pari materia are to be taken together, as if they were one law.’ United States v. Freeman, [44 U.S.] 3 How. 556, 564 [11 L.Ed. 724].” United States v. Stewart, 311 U.S. 60, 64, 61 S.Ct. 102, 105, 85 L.Ed. 40 (1940). “Where two statutes are in pari materia and one contains provisions omitted from the other, the omitted provisions have been applied in proceedings under the statute not containing them when it is not inconsistent with that statute’s purpose.” Brown v. Gilligan, Will & Co., 287 F.Supp. 766, 775 (S.D.N.Y.1968) (citations omitted). “In other words, in construing a statute, consideration may be given to its relation to other statutes, and, if reasonably practicable, a statute is to be explained in conjunction with other statutes to the end that they may be a harmonious and consistent body at law.” 82 C.J.S. Statutes § 365, at pp. 799-800 (1953) (footnotes omitted). Further, as the Supreme Court has observed, “[t]here is no better key to a difficult problem of statutory construction than the law from which the challenged statute emerged. Remedial laws are to be interpreted in the light of previous experience and prior enactments.” United States v. Congress of Industrial Organizations, 335 U.S. 106, 112-113, 68 S.Ct. 1349, 1352, 92 L.Ed. 1849 (1948) (footnotes omitted). In Menominee the Court simply construed the Termination Act in light of Congress’ great care to avoid abrogation of hunting, fishing and trapping rights evidenced in the express language of Public Law 280. The Government argues that Public Law 280 not be considered in construing the Ute Termination Act for two reasons: this case does not involve treaty rights, and Utah was not a “Public Law 280” state. Again, the Government reads far too narrowly. While Menominee on its facts dealt with rights recognized by treaty, the relevant language of Public Law 280 speaks of hunting, fishing and trapping rights recognized under “federal treaty, agreement, or statute ... ” 18 U.S.C. § 1162(b); 25 U.S.C. § 1321(b) (emphasis added). No distinction is drawn. Public Law 280, therefore, reflects congressional concern that these rights not be infringed upon through the transfer of jurisdictional responsibility to the states, regardless of how those rights are recognized by Congress. Cf. Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975). The second distinguishing ground also does not withstand close analysis. Public Law 280 grouped the states into two categories: (1) “mandatory” states were those specifically enumerated in the Act and required to assume civil and criminal jurisdiction over “Indian country” within their borders; (2) “voluntary” states were the remaining states, who were free to assume such jurisdiction, wholly or partially, through unilateral legislative act. See Washington v. Yakima Indian Nation, supra, 439 U.S. at 471-474, 99 S.Ct. at 746-748. Public Law 280 was “of general applicability.” Id., at 471, 99 S.Ct. at 746. The scope and extent of jurisdiction assumable under its provisions was uniformly the same. Had Utah chosen to accept jurisdiction over the Ute reservation after 1953, its authority — and the limits thereon — would have been identical to those of Wisconsin or other “mandatory” states. For this reason, Public Law 280 forms a meaningful backdrop for interpretation of all of the termination legislation enacted a year later by the same Congress. That Utah did not choose to accept the jurisdiction made available by Congress does not translate into a conclusion that the acts are not in pari materia and that Congress used identical language to mean one thing as to Menominees and to mean the contrary as to the mixed-blood Utes. Compare 25 U.S.C. § 899 with 25 U.S.C. § 677v. Public Law 280 expressed a congressional policy decision to protect Indian hunting and fishing rights during any transfer of jurisdictional authority over Indians from the federal government to the states. Nothing in the language or history of the Ute Termination Act reflects a departure— let alone a reversal — of that approach. If Congress intended to abrogate the mixed-blood Utes’ hunting and fishing rights, it should have done so expressly. Where Congress has previously provided for the withdrawal of persons from tribal affiliation in particular situations, it has provided for complete withdrawal. Consider, for example, Section 6 of the Stockbridge-Munsee Partition Act of 1871, Act of Feb. 6, 1871, ch. 38, 16 Stat. 404, 406. That section provided for creation of two rolls — one for “tribal” Indians, and one for “citizen” Indians who were leaving tribal affiliation. Enrollment on the “citizen” roll, the Act declared, shall be held as a full surrender and relinquishment on the part of the citizen party, each and every one of them, of all claims to be thereafter known or considered as members of said tribe, or in any manner interested in any provision heretofore or hereafter to be made by any treaty or law of the United States for the benefit of said tribes, and that they and their descendants shall thenceforth be admitted to all the rights and privileges of citizens of the United States. No such complete break was prescribed by the Ute Termination Act. To the contrary, the mixed-blood Utes retained significant common interests in the management, control and proceeds of “[a]ll unadjudicated or unliquidated claims against the United States, all gas, oil, and mineral rights of every kind, and all other assets not susceptible to equitable and practicable distribution” held by the Ute Tribe. 25 U.S.C. § 677L While general statutes applicable to “Indians” because they are “Indians” no longer applied to the mixed-bloods, 25 U.S.C. § 677v, no language comparable to the Stockbridge-Munsee Act ended the mixed-bloods’ interests in any provision “made by any treaty or law of the United States for the benefit of said [Ute tribe],” at least as their interests were reserved by § 677i. This Court now refuses to find a complete abrogation of the mixed-blood Utes’ hunting and fishing rights for the simple reason that Congress did not provide for one. Here, as in Menominee, “[w]e find it difficult to believe that Congress, without explicit statement, would subject the United States to a claim for compensation by destroying property rights conferred by treaty [or by statute], particularly when Congress was purporting by the Termination Act to settle the Government’s financial obligations toward the Indians.” Id., 391 U.S. at 413, 88 S.Ct. at 1711 (footnote omitted). As noted above, in the absence of express congressional statement, abrogation of Indian rights is “not lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 354, 62 S.Ct. 248, 255, 86 L.Ed. 260 (1941); Menominee Tribe of Indians v. United States, supra, 391 U.S. at 413, 88 S.Ct. at 1711; see United States v. Truckee-Carson Irrig. Dist., 649 F.2d 1286, 1298 (9th Cir. 1981); “doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith.” Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56 L.Ed. 941 (1912); accord, Bryan v. Itasca County, Minn., 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976). C. Termination of Federal Recognition Since 25 U.S.C. § 677v does not have the broad effect claimed for it by the Government, the assertion that the defendant’s right to fish “was legally extinguished by the termination proclamation published August 26, 1961, [26 Fed.Reg. 8042]” Respondent’s Memorandum at 7, must fall as well. Termination of federal recognition, like non-recognition in other contexts, does not by itself extinguish tribal rights, or individual interests in tribal rights. Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974); id., 590 F.2d 768 (9th Cir. 1979); accord, United States v. State of Washington, 520 F.2d 676, 692-693 (9th Cir. 1975); Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370, 376-380 (1st Cir. 1975); Weatherhead, “What is an ‘Indian Tribe’? — The Question of Tribal Existence,” 8 Am. Indian L.Rev. 1, 32-33 (1980). Nor does individual withdrawal from tribal enrollment pursuant to a termination act by itself extinguish vested hunting and fishing rights not otherwise affected by the act. See Kimball v. Callahan (II), supra, 590 F.2d at 773. D. The Appurtenance Theory Having determined that the Ute Termination Act did not operate directly to extinguish the hunting and fishing rights of the mixed-blood group, the question of their present status is raised. The Government argues that the rights, if not directly extinguished, were distributed as rights appurtenant to the lands apportioned to the mixed-blood Utes. However, this approach misconceives the nature and scope of the tribal rights involved. Fish and game enjoy a unique status in American law. In the early days of the Republic, lawmakers eschewed the notion that individual landowners held absolute ownership of fish and game located on their property in favor of the view expressed in Blackstone’s Commentaries: In the first place then we have already shown, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are ferae naturae, and therefore the property of nobody, but liable to be seised by the first occupant. And so it was held by the imperial law, even so late as Justinian’s time .... But it follows from the very end and constitution of society that this natural right, as well as many others belonging to man as an individual, may be restrained by positive laws enacted for reasons of state, or for the supposed benefit of the community. This restriction may be either with respect to the place in which this right may or may not be exercised; with respect to the animals that are the subject of this right; or with respect to the persons allowed or forbidden to exercise it. And, in consequence of this authority, we find that the municipal laws of many nations have exerted such power of restraint; have in general forbidden the entering on another man’s grounds, for any cause, without the owner’s leave; have extended their protection to such particular animals as are usually the objects of pursuit; and have invested the prerogative of hunting and taking such animals in the sovereign of the state only, and such as he shall authorize, ... 2 W. Blackstone, Commentaries on the Laws of England, at 411 (1st ed. 1766) (emphasis in original; footnotes omitted); see 2 Id., at 410-419; see also Lund, “Early American Wildlife Law,” 51 N.Y.U.L.Rev. 703, 712 (1976). The wild animals and fish within a state’s borders were deemed to be “so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all its people. Because of such ownership, and in the exercise of its police power the States may regulate and control the taking, subsequent use and property rights that could be acquired therein.” Lacoste v. Department of Conservation, 263 U.S. 545, 549, 44 S.Ct. 186, 187, 68 L.Ed. 437 (1924); see Geer v. Connecticut, 161 U.S. 519, 522-530, 16 S.Ct. 600, 601-604, 40 L.Ed. 793 (1896), overruled by Hughes v. Oklahoma, 441 U.S. 322, 325, 99 S.Ct. 1727, 1730, 60 L.Ed.2d 250 (1979). As the Supreme Court of California declared years ago in Ex parte Maier, 103 Cal. 476, 37 P. 202 (1894): The wild game within a State belongs to the people in their collective sovereign capacity. It is not the subject of private ownership except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or traffic and commerce in it if it is deemed necessary for the protection or preservation of the public good. Id., 37 P. at 404. Or, as the Supreme Court of Minnesota observed, We take it to be the correct doctrine in this country, that the ownership of wild animals, so far as they are capable of ownership, is in the State, not as proprietor but in its sovereign capacity as the representative and for the benefit of all its people in common. State v. Rodman, 58 Minn. 393, 59 N.W. 1098, 1099 (1894). The most recent trend in analysis of cases arising under the Commerce Clause has been away from notions of state “ownership” of fish and game. See Hughes v. Oklahoma, 441 U.S. 322, 325-335, 99 S.Ct. 1727, 1730-1735, 60 L.Ed.2d 250 (1979). In Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284, 97 S.Ct. 1740, 1751, 52 L.Ed.2d 304 (1977), the Supreme Court commented, In any event, “[t]o put the claim of the State upon title is,” in Mr. Justice Holmes’ words, “to lean upon a slender reed.” Missouri v. Holland, 252 U.S. 416, 434 [40 S.Ct. 382, 384, 64 L.Ed. 641] (1920). A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of “owning” wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. Ibid.; Geer v. Connecticut, 161 U.S. 519, 539-540 [16 S.Ct. 600, 608, 40 L.Ed. 793] (1896) (Field, J. dissenting). The “ownership” language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing “the importance to its people that a state have power to preserve and regulate the exploitation of an important resource.” Toomer v. Witsell, 334 U.S. [385] at 402 [68 S.Ct. 1156 at 1165, 92 L.Ed. 1460]; see also Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420-421 [68 S.Ct. 1138, 1143, 92 L.Ed. 1478] (1948). Yet the Court has taken care to point out that “[t]he fact that the State’s control over wildlife is not exclusive and absolute in the face of federal regulation and certain federally protected interests does not compel the conclusion that it is meaningless in their absence.” Baldwin v. Montana Fish and Game Comm’n, 436 U.S. 371, 386, 98 S.Ct. 1852, 1861, 56 L.Ed.2d 354 (1978). Far from it. In fact, “[s]o long as constitutional requirements have been met, .. . ‘[protection of the wild life of the State is peculiarly within the police power, and the State has great latitude in determining what means are appropriate for its protection,’ Lacoste v. Department of Conservation, 263 U.S. 545, 552, 44 S.Ct. 186, 188, 68 L.Ed. 437 (1924).” Id., 436 U.S. at 391, 98 S.Ct. at 1864 (footnote omitted). In Baldwin, for example, the court observed that “[t]he elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved,” and that regulatory “means not unreasonably related to the preservation of a finite resource and a substantial regulatory interest of the State” are therefore justified. Id., 436 U.S. at 388, 390, 98 S.Ct. at 1862, 1863. The common thread running through the case law on fish and game as it evolves is recognition of substantial interest of the sovereign in managing and conserving fish and game as an important common natural resource, including the power to regulate the efforts of persons to reduce wild fish and game to actual possession, through licensing and otherwise. This principle and the analysis behind it are important herein because it in large part defines the nature of “hunting and fishing rights.” Wildlife law in large part is resource management. See Baldwin v. Montana Fish and Game Comm’n, supra; Hughes v. Oklahoma, supra, 441 U.S. at 335-336, 99 S.Ct. at 1735; Lund, “Early American Wildlife Law,” 51 N.Y.U.L.Rev. 703, 730 (1976). Within the sphere of overall state regulatory authority a landowner has the exclusive right to take fish and game that is found upon his property; “the owner of the soil would have a qualified, but substantial, property interest in the fish upon his own land, with the exclusive right to reduce it to possession superior to that of others, and subject only to regulation by the state as a sovereign and under its police powers.” Gratz v. M’Kee, 270 F. 713, 718 (C.C.A. 8th Cir. 1920), affirmed 260 U.S. 127, 43 S.Ct. 16, 67 L.Ed. 167 (1922); accord, State ex rel. State Game Comm’n v. Red River Valley Co., 51 N.M. 207, 182 P.2d 421 (1945); 36A C.J.S. Fish § 4 (1961). When land is conveyed to others, the conveyance of fishing rights may run as an appurtenance to land, e.g., Upper Greenwood Lake Properties Ass’n v. Grozing, 6 N.J.Super. 538, 69 A.2d 896 (1949), as a personal right, e.g., Haynes v. Hunt, 96 Utah 348, 85 P.2d 861, 866 (1938), or not at all, e.g., Camp Clearwater, Inc. v. Plock, 52 N.J.Super. 583,146 A.2d 527 (1958), depending upon the terms of the conveyance. 36A C.J.S. Fish § 5 (1961). What passes as an appurtenance, if at all, is the right to take fish or game on the land in an otherwise lawful manner to the exclusion of others However, as this Court has previously observed, Indian hunting and fishing rights reflect “a hybrid mixture of Indian jurisdictional and proprietary interests.” Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1145 (D.Utah 1981). Besides the proprietary right of an Indian tribe to permit or refuse entry by outsiders to hunt fish or gather upon tribal lands, see Montana v. United States, 450 U.S. 544, 557-567, 101 S.Ct. 1245, 1254-1258, 67 L.Ed.2d 493 (1981), and to take fish and game thereon as an incident of Indian title, see United States v. Minnesota, 466 F.Supp. 1382, 1385 (D.Minn.1979), affirmed Red Lake Band of Chippewa Indians v. State of Minnesota, 614 F.2d 1161 (8th Cir. 1980) (per curiam), cert. denied, 449 U.S. 905, 101 S.Ct. 279, 66 L.Ed.2d 136 and as recognized by treaty or statute, see F. Cohen, Handbook of Federal Indian Law 285-286 (1942 ed.), the tribe stands within its territo