2020 New Mexico Statutes
Chapter 17 - Game and Fish and Outdoor Recreation
Article 2 - Hunting and Fishing Regulations
Part 1 - GENERAL PROVISIONS
Section 17-2-28 - [Indians hunting off reservations; hunting on reservations; application of laws.]
The provisions of this chapter shall apply to all Indians off the reservation within this state, or coming into this state from adjoining states, and to all persons hunting on any Indian reservation within this state; provided, however, that no Indian shall be required to have a license to hunt or fish within the limits of the reservation where said Indian resides.
History: Laws 1912, ch. 85, § 7; Code 1915, § 2430; Laws 1919, ch. 133, § 1; C.S. 1929, § 57-212; 1941 Comp., § 43-233; 1953 Comp., § 53-2-31.
ANNOTATIONSCompiler's notes. — The words "this chapter" refer to Chapter 47, 1915 Code. For disposition of Chapter 47 in NMSA 1978, see note to 17-2-11 NMSA 1978.
Preemption. — The application on the Mescalero Apache tribe reservation, of New Mexico's hunting and fishing laws to nonmembers of the tribe is preempted by the operation of federal law. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S. Ct. 2378, 76 L. Ed. 2d 611 (1983).
In absence of treaty Indian outside Indian country is subject to state laws. — As a general rule, if there is no treaty or agreement between the United States and the Indian tribe recognizing or granting rights to Indians to hunt and fish outside the Indian country, an Indian hunting or fishing in New Mexico outside the Indian country is subject to the laws of the state of New Mexico the same as any other person. 1953-54 Op. Att'y Gen. No. 6041.
An Indian may be assessed a license fee and regulated off the reservation for hunting and fishing the same as any other person of the state, except the Navajos must be permitted to hunt free of charge off the reservation. 1954 Op. Att'y Gen. No. 54-6041.
Indian is exempt in Indian country even if off his reservation. — An Indian hunting or fishing on a reservation not his own is still an Indian in Indian country and is exempt from the game laws of the state. 1954 Op. Att'y Gen. No. 54-6041.
Non-Indian may be prosecuted for violation in Indian country. — The state of New Mexico has jurisdiction to prosecute non-Indians violating the hunting and fishing laws of this state even though such violation occurs on an Indian reservation. 1973 Op. Att'y Gen. No. 73-18; 1954 Op. Att'y Gen. No. 54-6041.
Jurisdiction in Indian country. — Section 2 of N.M. Const., art. XXI, provides that until the title of Indians shall have been extinguished, the lands shall be under the absolute jurisdiction and control of the congress of the United States, but this clearly does not deprive the state of jurisdiction over offenses committed by a non-Indian against a non-Indian in Indian country, nor does it prevent the enforcement of the game laws against non-Indians in the Indian country. 1954 Op. Att'y Gen. No. 54-6041.
State has jurisdiction of hides, etc., taken on Indian reservation only if taken by non-Indian. — So far as possession of hides, skins, pelts, heads and game animals, birds or fish, or parts thereof, taken by a non-Indian on an Indian reservation, the state would have jurisdiction the same as though taken anywhere else in the state; but in the case of such items taken by an Indian on an Indian reservation and transported elsewhere, the state would have absolutely no jurisdiction whatsoever. 1954 Op. Att'y Gen. No. 54-6041.
Law reviews. — For article, "New Mexico v. Mescalero Apache Tribe: When Can a State Concurrently Regulate Hunting and Fishing by Nonmembers on Reservation Land?," see 14 N.M.L. Rev. 349 (1984).
For article, "The Native American's Right to Hunt and Fish: An Overview of the Aboriginal, Spiritual and Mystical Belief System, the Effect of European Contact and the Continuing Fight to Observe a Way of Life," see 19 N.M.L. Rev. 377 (1989).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 41 Am. Jur. 2d Indians §§ 64 et seq., 155 et seq..
42 C.J.S. Indians §§ 122 to 129.
