Amicus Curiae Brief — Brendale v. Confederated Tribes and Bands of Yakima Nation

4) \\) 1)

Nos. 87-1622, 87-1697 and 87-1711

IN THE

Supreme Court of the United

OCTOBER TERM, 1988

PHILIP BRENDALE,

y Petitioner,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et ai.,

Respondents.

STANLEY WILKINSON,

Vv.

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Respondent.

Petitioner,

COUNTY OF YAKIMA, et al..,

y Petitioners,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

STANDING ROCK SIOUX TRIBE AND

ASSINIBOINE AND SIOUX TRIBES OF

THE FORT PECK INDIAN RESERVATION

IN SUPPORT OF RESPONDENT

WILLIAM R. PERRY *

HARRY R. SACHSE

REID PEYTON CHAMBERS

SONOSKY, CHAMBERS & SACHSE

1250 Eye Street, N.W.

Suite 1000 ~

Washington, D.C. 20005

* Counsel of Record (202) 682-0240

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

S) Sal ie hee

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TABLE OF CONTENTS

INTEREST OF AMICI..............0........... dy. Caer

SUMMARY OF ARGUMENT . 0000000... eeeeeeeeee

PE deities ecareithnevieniiigitccceeciianiaricidichcinicaiaicsiog

I. TRIBES RETAIN CIVIL JURISDICTION

Il.

ITI.

OVER ALL LANDS ON THEIR RESERVA-

TIONS WHERE TRIBAL INTERESTS ARE

EF ND cient dibicetnseivntltatidibentiinnigtiedentimedibeepers

A. The Territorial Component of Tribal Sover-

eignty is Firmly Established by The Rulings

YC oe a Ee

B. Montana v. United States Supports Tribal

I A a Ca

C. The Courts of Appeais Have Properly Rec-

ognized The Need for Tribal Zoning of Res-

I te I chat cliecednicncececsnnnteee

CONGRESSIONAL POLICY—AS DEMON-

STRATED BY THE RECENT AMENDMENTS

TO THE INDIAN SELF-DETERMINATION

ACT—SUPPORTS TRIBAL ZONING AU-

Bg REN ENERRRE SERN Rn ee UO oe Ce

THE INDIAN REORGANIZATION ACT OF

1934, CONTRARY TO THE POSITION OF

THE STATE AMICI, RECOGNIZED BROAD

INHERENT TRIBAL GOVERNMENTAL AU-

THORITY INCLUDING AUTHORITY OVER

NON-INDIANS ON INDIAN’ RESERVA-

11

14

ii

TABLE OF AUTHORITIES

Cases: Page

Buster v. Wright, 135 Fed. 947 (8th Cir. 1905),

appeal dismissed, 203 U.S. 599 (1906)... ...... 6, 16

Cardin v. De La Cruz, 671 F.2d 363 (9th Cir.

1982), cert. denied 459 U.S. 967 (1982) -........... 9

Citizens Band of Potawatomi v. United States,

14 Ind. Cl. Comm. 570 (1964) ............-..--22--000--0-0-- 7

Confederated Salish and Kootenai Tribes v. Na-

men, 665 F.2d 951 (9th Cir. 1982), cert. denied

450 0° BS. GFT (IGG ccccccecteccssses 10

Fisher v. District Court, 424 U.S. 382 (1976) ........ 15

Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9

(| CE 6, 7, 11, 15

Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195

¢) | 15

Knight v. Shoshone and Arapahoe Indian Tribes,

670 F.2d 900 (10th Cir. 1982) ............................... 3,9

Lummi Indian Tribe v. Hallauer, 9 Indian Law

Reporter 3025 (W.D. Wash. 1982) ..................... 6

Mattz v. Arnett, 412 U.S. 481 (1973) .......--------------- 5

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

(BGG) —- nneecvccveccsssevsenssnencsluinscsiaienaen 5, 6

Montana v. United States, 450 U.S. 544 (1980) ....passim

Morris v. Hitchcock, 194 U.S. 384 (1904) -.............. 16

Morton v. Mancari, 417 U.S. 535 (1974).................. 15

National Farmers Union Ins. Co. v. Crow Tribe,

rrp mie S Re. | ae 5, 6

New Mexico v. Mescalero Apache Tribe, 462 U.S.

| enn See 6, 8, 11

Oliphant v. Suquamish Tribe, 435 U.S. 191

0, | SENS 5

Sac and Fox Tribe v. United States, 18 Ind. Cl.

Commm. GBB (2008) —ncssccccssisesinine 7

Talton v. Mayes, 163 U.S. 376 (1896)..................... 16

United States v. Celestine, 215 U.S. 278 (1909)... 5

United States v. Mazurie, 419 U.S. 544 (1975)....passim

United States v. Wheeler, 435 U.S. 313 (1978)... 5,15

iii

TABLE OF AUTHORITIES—Continued

Page

Washington v. Confederated Tribes of Colville In-

dian Reservation, 447 U.S. 134 (1980) ........... 5, 6, 8, 15

White Mountain Apache Tribe v. Bracker, 448 U.S.

EE ee 5, 11, 15

Williams v. Lee, 358 U.S. 217 (1959) 0.00000... —. *

Statutes and Treaties:

SESE 7

Indian Reorganization Act of 1934, 25 U.S.C.

re secamnsdttontewovocs passim

Indian Self Determination Act, 25 U.S.C. § 450

EE EES a a et passim

Indian Self Determination Amendments of 1987

Public Law 100-472, 102 Stat. 225. .......0000000000.... 12

Nene cansesneeanosees 16, 20

EEE EE 20

Clean Water Act, 33 U.S.C. § 1877... 14

Safe Drinking Water Act, 42 U.S.C. § 300j-11_......... 14

Comprehensive Environmental Response, Com-

pensation and Liability Act, 42 U.S.C. § 9626... 14

Congressional Materials:

Hearing on H.R. 7902 before the House Commit-

tee on Indian Affairs, 73d Cong., 2d Sess.

SS passim

Hearing on S. 2755 before the Senate Committee

on Indian Affairs, 73d Cong., 2d Sess. (1934) ....passim

S. Rep. No. 274, 100th Cong., Ist Sess. (1988)... 13-14

H.R. Rep. No. 2049, 73d Cong., 2d Sess. (1934)... 20

Dee nn ccceccccereesencees 18

LS 22

| 21

a” 22

pe!) 19, 21, 22

|) 22

Sg” 22

76 Coma. Bec. LITST (1984). ..............ccccccccccccccccccccceceee 22

| |) 22

iv

TABLE OF AUTHORITIES—Continued

Page

cot) OM eee 19

FE Games. TR, TIS CGD ececicceececccctiniinnssinittttenstnteninn 19

Miscellaneous:

Cohen’s Handbook of Federal Indian Law (1982

SNEED « cossecscunctstitinscisciativeitegnbalianiciesisethenaithdiinbdiiidliialiiil dines 7

Tribal Self-Government and The Indian Reorgani-

zation Act of 1934, 70 Mich. L. Rev. 955 (1972).. 17, 22

The Powers of Indian Tribes, 55 I.D. 14 (1934)... 6,15

IN THE

Supreme Court of the United Staies

OCTOBER TERM, 1988

Nos. 87-1622, 87-1697 and 87-1711

PHILIP BRENDALE,

i Petitioner,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et ai.,

Respondents.

STANLEY WILKINSON,

Petitioner,

Vv.

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Respondent.

COUNTY OF YAKIMA, et al.,

io Petitioners,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

STANDING ROCK SIOUX TRIBE AND

ASSINIBOINE AND SIOUX TRIBES OF

THE FORT PECK INDIAN RESERVATION

IN SUPPORT OF RESPONDENT

=

2

INTEREST OF AMICI

The Assiniboine and Sioux Tribes of the Fort Peck

Indian Reservation and the Standing Rock Sioux Tribe

are both federally recognized Indian tribes.’ Both the Fort

Peck Reservation (in Montana) and the Standing Rock

Reservation (in North and South Dakota) contain a mix-

ture of trust lands and fee lands. The ability to zone

Reservation fee lands to protect tribal communities from

harmful development is crucial to maintaining the tribal

homeland for the future.

The Tribes are also concerned with the wholesale attack

on tribal jurisdiction made in this case by the states in

which they live. This appears to be an attempt to remove

from the Reservations all lands owned by non-Indians,

further reducing the homeland guaranteed the Tribes by

treaty.

The amici Tribes urge this Court to uphold the exclu-

sive zoning jurisdiction of the Yakima Tribe over both

the opened and closed portions of its reservation.

All parties have consented to the filing of this brief

amicus curiae, and those consents have been lodged with

the Clerk.

SUMMARY OF ARGUMENT

(I) This case involves the authority of tribes to zone

reservation fee lands, where conduct on those lands af-

fects tribal interests. The petitioners and their amici

argue that a tribe has no jurisdiction to zone fee land on

its reservation—that a tribe’s powers do not extend to

fee lands. This is contrary to this Court’s numerous de-

cisions upholding the territorial component of a tribe’s

jurisdiction, e.g., United States v. Mazurie, 419 U.S. 544

(1975).

In Montana v. United States, 450 U.S. 544 (1980),

the Court expressly recognized a tribe’s authority over

conduct on fee lands which “threatens or has some direct

3

effect on the political integrity, the economic security, or

the health or welfare of the Tribe.” Jd. at 566. Zoning,

where the land of the tribe or its members is threatened

or affected by the use of fee land, is precisely authority

over such conduct.

Both the Ninth and Tenth Circuits, in which large

numbers of tribes are located, have upheld tribal zoning

authority. In doing so they have been sensitive to the

rulings of this Court and to the local situation. They

have understood that non-Indian communities have little

interest in protecting reservation lands, and that without

the power to zone fee lands on their reservations, tribes

would be without any effective remedy to preserve their

reservation as a homeland. See Knight v. Shoshone and

Arapahoe Indian Tribes, 670 F.2d 900 (10th Cir. 1982).

(II) Congressional policy, including this year’s amend-

ments to the Indian Self-Determination Act, endorses the

capabilities of tribal governments and recognizes the ne-

cessity of tribal zoning and land use planning to facilitate

economic development. The denigration of tribal govern-

ment by several amici supporting petitioners here is not

only inappropriate but is inconsistent with Congress’

findings and the decisions of this Court.

(III) The State Amici seek to reconstrue the legisla-

tive history of the Indian Reorganization Act to have the

Court view it as insignificant in the strengthening of

tribal government and the preservation of tribal govern-

mental authority. Their view is inconsistent with the

numerous decisions of this Court construing the Act, with

the language of the Act, and with the Act’s legislative

history. It is true that the original bill would have dele-

gated enumerated powers to the Tribes to the extent de-

termined by the Secretary of the Interior. Those provi-

sions were stricken and in their place was put the cur-

rent Section 16 which instead preserves ail existing tri-

bal powers and allowed others to be added. The initial

4

objections to the Act—which amici rely upon—were over-

come after President Roosevelt’s intervention, and the

Act as passed strongly strengthened Indian government

and repudiated the policies of allotment and assimilation.

ARGUMENT

I. TRIBES RETAIN CIVIL JURISDICTION OVER

ALL LANDS ON THEIR RESERVATIONS WHERE

TRIBAL INTERESTS ARE AFFECTED

A. The Territorial Component of Tribal Sovereignty is

Firmly Established by the Rulings of This Court.

Much of the argument by petitioners and their sup-

porting amici consists of their reading of certain lan-

guage from Montana v. United States, 450 U.S. 544

(1980). But the decisions of this Court both before and

after Montana, and Montana itself, recognize tribal civil

jurisdiction over non-Indian activities on reservation

lands—whether trust or fee—which significantly affect

tribal interests.

In United States v. Mazurie, 419 U.S. 544 (1975), a

unanimous Court upheld tribal authority to regulate the

sale of liquor by non-Indians on fee lands on an Indian

reservation. Mazurie arose on the portion of the Wind

‘River Reservation which was open to non-Indian settlers

and checkerboarded, much like the open area at Yakima.

The Tenth Circuit had ruled that Congress could not

delegate to the Tribes licensing authority over liquor

sales on fee lands, because the Tribes were mere land-

owners, lacking authority over fee lands. In wholly re-

jecting this argument Justice Rehnquist wrote:

This Court has recognized limits on the authority of

Congress to delegate its legislative power. Those

limitations are, however, less stringent in cases

where the entity exercising the delegated authority

itself possesses independent authority over the sub-

ject matter. Thus it is an important aspect of this

case that Indian tribes are unique aggregations pos-

—— ee

5

sessing attributes of sovereignty over both their

members and their territory.

Id. at 557 (citations omitted).

The Court has reaffirmed the territoriality of tribal

jurisdiction in numerous decisions. As the Court stated

in White Mountain Apache Tribe v. Bracker, 448 U.S.

136, 151 (1980), “there is a significant geographical com-

ponent to tribal sovereignty.” '

In a broader sense, the Tribes’ territorial powers in

civil matters are part of the “inherent powers of a lim-

ited sovereignty which has never been extinguished.”

United States v. Wheeler, 435 U.S. 313, 322-23 (1978) .*

These retained powers have been consistently upheld as

1 The lands at issue are on the Reservation. No claim is made—

nor could one be—that these lands are off the Reservation. Never-

theless, petitioners and their supporting amici suggest that the

Court treat these lands as if they were no longer within the Res-

ervation or subject to any tribal jurisdiction. Their argument—

in effect that fee lands are per se not to be treated as reservation

lands—has been rejected continuously by the Court for over 75

years. See United States v. Celestine, 215 U.S. 278, 285 (1909).

While under the allotment policy, now repudiated, the United States

allowed non-Indians to purchase land within reservations, unless

Congress unequivocally provided otherwise, those purchased lands

remain within the reservation. E.g., Mattz v. Arnett, 412 U.S. 481,

498-99 (1973).

2In addition to express congressional limitations on tribal au-

thority, tribes have been implicitly divested of their criminal juris-

diction over non-Indians by virtue of their status as domestic de-

pendent sovereigns. Oliphant v. Suquamish Tribe, 435 U.S. 191

(1978). Oliphant relied on the “commonly shared presumption of

Congress, the Executive Branch, and lower federal courts that

tribal courts do not have the power to try non-Indians ... .” 435

U.S. at 206. With respect to civil jurisdiction, the Court has con-

sistently found the common understanding of the three branches

of Government to be precisely the opposite. See National Farmers

Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 854-55 (1985);

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144-147 (1982);

Washington v. Confederated Tribes of the Colviile Indian Reserva-

tion, 447 U.S. 134, 152-54 (1980).

6

to vivil jurisdiction over non-Indian conduct on the res-

ervation, e.g., New Mexico v. Mescalero Apache Tribe,

462 U.S. 324 (1983) (hunting and fishing) ; Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130 (1982) (severance

taxation); Washington v. Confederated Tribes of the

Colville Indian Reservation, 447 U.S. 134 (1980) (sales

taxation). This has been so where the conduct was on

fee land. United States v. Mazurie, 419 U.S. 544 (1975)

(individually owned fee land) ; National Farmers Union

Ins. Co. v. Crow Tribe, 471 U.S. 845 (1985) (fee land

owned by school district). As this Court recently stated,

Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987)

(citations omitted) :

Tribal authority over the activities of non-Indians

on reservation lands is an important part of tribal

sovereignty. Civil jurisdiction over such activities

presumptively lies in the tribal courts unless affirma-

tively limited by a specific treaty provision or fed-

eral statute.*

Nor is this anything new. Merrion v. Jicarilla Apache

Tribe, 455 U.S. at 140 (quoting from an 1879 Senate

Report describing broad civil powers of Indian tribes) ;

Buster v. Wright, 135 Fed. 497 (8th Cir. 1905), appeal

dismissed, 203 U.S. 599 (1906) (upholding tribal author-

ity to tax non-Indians on reservation fee lands); The

Powers of Indian Tribes, 55 I.D. 14, 55 (1934) (defining

the broad civil authority of tribes preserved by the In-

dian Reorganization Act.) *

3 The ruling in LaPlante did not turn on whether the underlying

incident involved trust or fee lands. LaPlante involved an injury

in an automobile accident allegedly occurring on a federal highway

on the reservation. The District Court made no findings—and

neither the Ninth Circuit nor this Court commented on—the fee

or trust status of the accident site. The lower court opinions are

unpublished but were printed in the appendix to the petition for

writ of certiorari in Jowa Mutual Ins. Co. v. LaPlante.

4Thus, it has long been clear that, for jurisdictional purposes,

people living on fee lands within Indian reservations are not in

7

B. Montana vy. United States Supports Tribal Zoning

Authority.

Montana must be read within the context of this

Court’s other rulings, both before and after it. Viewed

in this manner, Montana teaches that Indian tribes have

civil jurisdiction over non-Indian activities on reserva-

tion fee lands where the non-Indian activities threaten or

affect Indian governmental, property or other interests.

Where Indian interests are not implicated—as the Court

found to be the case in Montana—tribes do not have civil

jurisdiction over non-Indians on fee lands. This Court

and the lower courts have consistently read Montana this

way. No court has ruled—as petitioners invite here—

that Montana was the death knell of tribal civil jurisdic-

tion over non-Indians.

In Montana, the Crow Tribe sought to prohibit non-

Indian hunting and fishing on certain fee lands. The

Court stated that “[t]he complaint in this case did not

the same situation as people living off reservations. They cannot

sell liquor on their land without the consent of the tribe. United

States v. Mazurie, 419 U.S. 544 (1975). Crimes committed on

their land, if they involve an Indian, may be handled in federal

courts. 18 U.S.C. 1151-1152; see Cohen’s Handbook of Federal

Indian Law (1982 ed.) (“Cohen”), pp. 286-287. Civil suits involv-

ing events that occur on such lands may be tried in Tribal Courts.

Williams v. Lee, 358 U.S. 217 (1959) (non-Indian as plaintiff) ;

Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987) (non-Indian

as defendant).

On the other side of the ledger, the non-Indians who purchased

reservation lands obtained considerable benefits in this arrange-

ment. They were able to obtain land free or well below market

price. E.g., Citizens Band of Potawatomi v. United States, 14

Ind. Cl. Comm. 570, 580 (1964) (Docket 96); Sac and Fox Tribe

v. United States, 18 Ind. Cl. Comm. 558, 616, 631 (1967) (Docket

219). They were and are able to use irrigation systems built for

the Indians. See Cohen, pp. 728-732. They were often able to

obtain permits to use large areas of federal land or lease Indian

lands at concessionary rates, thus expanding small farms or ranches

into effectively much larger ones.

8

allege that non-Indian hunting and fishing on reservation

lands has impaired” the Tribes’ treaty right to hunt and

fish. Montana, 450 U.S. at 558 n.6.° In these circum-

stances—where there was not even an allegation that the

non-Indians were in any measure affecting any Indian

interests—the Court held the Tribe lacked authority to

bar non-Indians from hunting and fishing on fee lands.

At the same time, the Court in Montana reaffirmed

that tribes “retain inherent sovereign power to exercise

some forms of civil jurisdiction over non-Indians on their

reservations, even on non-Indian fee lands.” Jd. at 565.

This includes civil jurisdiction over nonmembers who

enter “contracts, leases, or other arrangements” with the

Tribe or Indians. Jd. In addition, tribes retain civil au-

thority over non-Indian conduct on reservation fee lands

which “threatens or has some direct effect on the political

integrity, the economic security, or the health or welfare

of the Tribe.” Jd. at 566.

Montana, then, means that where a significant tribal

interest is threatened, or directly affected, the tribe may

regulate the on-reservation conduct of non-Indians, on

trust lands or fee. See New Mexico v. Mescalero Apache

Tribe, 462 U.S. 324, 331, n.112 (1983); Washington v.

Confederated Tribes, 447 U.S. 134, 152 (“tribes possess

a broad measure of civil jurisdiction over the activities

of non Indians on Indian Reservation lands in which the

tribes have a significant interest.”). Indeed, this Court

has cited Montana for the proposition that “[t]ribal au-

thority over the activities of non-Indians on reservation

lands is an important part of tribal sovereignty.” Jowa

Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987).

5 The complaint moreover “did not allege that non-Indian hunt-

ing and fishing on fee lands imperil the subsistence or welfare of

the Tribe.” Jd. at 566. “

9

C. The Courts of Appeals Have Properly Recognized

The Need for Tribal Zoning of Reservation Fee

Lands.

Tribal regulatory jurisdiction over fee land on a tribe’s

reservation is essential to protect the use of the tribal

land. Only the Tribe has an interest in protecting the

reservation as a homeland for its people. To the non-

Indian governments, the reservation is a place of less

than normal concern, in part because of the sweep of

federal jurisdiction. To the tribe it is everything.

The Courts of Appeals have consistently applied Mon-

tana to preserve this much-needed aspect of tribal civil

jurisdiction over reservation fee lands. For example, in

Knight v. Shoshone and Arapahoe Indian Tribes, 670

F.2d 900 (10th Cir. 1982), the Tenth Circuit upheld the

application of a tribal zoning ordinance to fee lands on

the checkerboarded Wind River Reservation. While the

county had land use regulations, those regulations did

not stop a non-Indian from subdividing land into an 132

lot trailer park in the midst of a rural Indian commu-

nity. The county’s interest apparently was to allow “de-

velopment”—even this haphazard development, which was

proposed without adequate provision for fire, garbage and

other necessary services. Only the Tribes had an interest

in preserving the integrity of the rural Indian community.

Without the power to zone, tribes would be without

any effective remedy to keep non-Indians from turning

their reservations into places for cheap subdivisions,

dumps and land speculation. As the Tenth Circuit rec-

ognized in Knight, under this Court’s rulings, including

Montana, tribal governments are not powerless to prevent

such a result. See also Cardin v. De La Cruz, 671 F.2d

363 (9th Cir. 1982), cert. denied 459 U.S. 967 (1982)

(in which the Ninth Circuit upheld a tribe’s authority to

regulate a grocery store on reservation fee lands which

10

was a fire hazard and threatened rodent contamination

of food) .®

The Ninth Circuit in this case applied Montana con-

sistently with other decisions of this Court and the courts

of appeals.. The Yakima Nation enacted its zoning ordi-

nance in 1970 and has ruled on hundreds of land use

applications. The Court of Appeals upheld tribal au-

thority to zone fee lands in both the closed area (com-

prised of largely undeveloped trust lands) and vhe open

area (a checkerboard of trust and fee lands) of the res-

ervation. The Court stated that in

enacting zoning ordinance[s], a tribe attempts to

protect against the damage caused by uncontrolled

development, which can affect all of the residents

and land of the reservation. Tribal zoning is par-

ticularly important because of the unique relation-

ship of Indians to their lands. 828 F.2d at 534.

With respect to both portions of the reservation, the

Court noted the Tribe had significant interests which

could be impaired by the proposed development—includ-

ing harm to lands through erosion, harm to the tribal

way of life through increased population density, harm

to tribal governmental interests by requiring additional

police or fire services, as well as harm to tribal religious

interests in sacred burial grounds near the planned de-

® See also Lummi Indian Tribe v. Hallauer, 9 Indian Law Re-

porter 3025 (W.D. Wash. 1982), in which the district court upheld

the Lummi requirement that non-Indian owners of fee land, as

well as Indians, use the new tribal sewer disposal system; Con-

federated Salish & Kootenai Tribes v. Namen, 665 F.2d 951 (9th

Cir. 1982), cert. denied 459 U.S. 977 (1982) upholding, inter alia,

the Flathead Tribes’ regulation of piers and sewer discharge into

Flathead lake from fee land as well as trust.

7 These rulings also show that tribes have exercised their powers

with restraint. Both the Yakima ordinance here, and the Shoshone

and Arapahoe ordinance in Knight, did not seek to zone non-Indian

communities on the reservation.

11

velopment. Jd. at 535 and 536 n.5. These tribal inter-

ests were found sufficient to sustain tribal zoning.

This case is factually unlike Montana—in which no

impact on tribal interests was alleged. Rather, this is a

case in which core tribal interests—the Tribe’s ability to

preserve its resources and the character of its reserva-

tion homeland—are at stake. The court below, following

the teachings of this Court, properly held that the Tribe

retains the power to zone as necessary to protect those

interests.*

II. CONGRESSIONAL POLICY—AS DEMONSTRATED

BY THE RECENT AMENDMENTS TO THE IN-

DIAN SELF-DETERMINATION ACT—SUPPORTS

TRIBAL ZONING AUTHORITY

South Dakota (Br. pp. 2-12) and certain other amici

use their briefs to denigrate tribal government. Congress

does not share their views.

This Court has “repeatedly recognized the Federal

Government’s longstanding policy of encouraging tribal

self-government.” Jowa Mutual Ins. Co. v. LaPlante, 480

U.S. 9, 14 (1987). Federal Indian policy “includes Con-

gress’ overriding goal of encouraging ‘tribal self suffi-

ciency and economic development’... .” New Mezico v.

Mescalero Apache Tribe, 462 U.S. 324, 335 (1983), quot-

ing White Mountain Apache Tribe v. Bracker, 448 U.S.

136, 143 (1980). Tribal authority over on-reservation con-

duct must be “construed generously in order to comport

. with the federal policy of encouraging tribal inde-

pendence.” White Mountain Apache Tribe v. Bracker,

448 U.S. 136, 144 (1980).

Action at the close of the 100th Congress confirms both

that federal policy recognizes the capabilities of tribal

8 With respect to the open portion of the Reservation, the Ninth

Circuit remanded for a determination of whether off-reservation

impacts could justify county zoning.

12

government and supports tribal zoning and land use plan-

ning. Within the past month, one of the cornerstones of

federal Indian policy, the Indian Self-Determination Act,

25 U.S.C. 450 et seq., has been amended to expand gov-

ernmental opportunities for tribes and to enhance reser-

vation economic development. Indian Self-Determination

Amendments of 1987, Pub. L. 100-472, 102 Stat. 225

(October 5, 1988). The original Self-Determination Act

—enacted in 1975—was designed to allow tribes to as-

sume increased responsibility for federal Indian pro-

grams. The amendments, among other things, expand

the scope of federal programs which tribes may admin-

ister (Section 201(a)), clarify that funds available for

tribally-run programs are not to be arbitrarily dimin-

ished (Section 205), remove indirect cost penalties (Sec-

tion 205), and broaden the availability of technical as-

sistance to tribes (Section 202).

In seeking to further the tribal self-determination pol-

icy, Congress noted the progress tribes have made over

the past decade, and expressed confidence in tribal gov-

ernmental capabilities. As the Senate Report on the bill

which became the Self-Determination Amendments states:

Indian tribal governments have developed rapidly

since passage of the Indian Self-Determination Act.

In addition to operating health services, human serv-

ices, and basic governmental services such as law

enforcement, water systems and community fire pro-

tection, tribes have developed the expertise to man-

age natural resources and to engage in sophisticated

economic and community development. All of these

achievements have taken place during a time when

tribes have also developed sophisticated systems to

manage and account for financial, personnel and

physical resources. Most Indian communities share

with rural non-Indian communities problems of in-

adequate infrastructure and lack of access to man-

agerial talent. Nevertheless, compared to state,

county and municipal governments of similar demo-

13

graphic and geographic characteristics, the level of

development attained by tribal governments over the

past twelve years is remarkable. This progress is

directly attributable to the success of the federal

policy of Indian self-determination.

S. Rep. No. 274, 100th Cong., 1st Sess., p. 4 (Emphasis

added).

The Act also reflects Congress’ determination that

strong tribal governmental authority and _ reservation

economic development are related goals which must ad-

vance together.

The obvious conclusion is the same for Indian and

non-Indian rural communities: the development of

local government services, the provision of suppor-

tive human services, and local planning are essential

to successful economic development. The Indian

Self-Determination Act has made these conditions

possible on many Indian reservations. Jd. at 5.°

More specifically, Congress recognized that tribal self-

determination contracts are appropriately used to pro-

duce tribal land use and zoning ordinances, which in

turn promote tribal economic development efforts.

Tribal self-determination contracts to conduct com-

prehensive planning, land use studies and natural

resource inventories have been essential to the suc-

cess of Indian economic development efforts. Id. at

4-5. (Emphasis added. )

® This is also reflected in the Act’s declaration of policy, which

was amended to include the following language (Section 102) :

In accordance with this policy, the United States is committed

to supporting and assisting Indian tribes in the development

of strong and stable tribal governments, capable of admin-

istering quality programs and developing the economies of

their respective communities. (Emphasis added.)

14

Likewise, in discussing the provision authorizing ex-

panded technical assistance, the Senate Report states:

Not only will such interaction [between Tribes and

entities other than the federal government] lead to

improved program planning, it could also lead to

improved intergovernmental cooperation when tribes

obtain technical assistance from local government

sources in such areas as zoning ordinances, environ-

mental quality planning, and other technical areas.

(Emphasis added.) Id. at 28.7

In short, Congressional policy of promoting tribal gov-

ernment as a means toward Reservation economic devel-

opment has recently been reaffirmed. In specifically ad-

dressing tribal land use planning and zoning, the Senate

Committee which reported the measure indicated that

these are important tools for Tribes in achieving the

congressionally sanctioned goal of improving their eco-

nomic status. Thus congressional policy would be fur-

thered by upholding tribal zoning authority in this case.

In the end, Congress’ expression of Federal Indian

policy, not certain amici’s attempts to undermine that

policy, must control.

Ill. THE INDIAN REORGANIZATION ACT OF 1934,

CONTRARY TO THE POSITION OF THE STATE

AMICI, RECOGNIZED BROAD INHERENT TRIBAL

GOVERNMENTAL AUTHORITY INCLUDING AU-

THORITY OVER NON-INDIANS ON INDIAN RES-

ERVATIONS

This Court often has reviewed the Indian Reorganiza-

tion Act (IRA), ruling time and again that the IRA

confirmed broad tribal governmental powers, based on

10 Note that this language treats tribal zoning in the same man-

ner as environmental quality planning, which tribes are authorized

to regulate on all reservation lands, both trust and fee. Clean

Water Act, 33 U.S.C. § 1877; Safe Drinking Water Act, 42 U.S.C.

§ 300j-11; Comprehensive Environmental Response, Compensation

and Liability Act (Superfund), 42 U.S.C. § 9626 et seq.

15

inherent tribal authority... State Amici™ nevertheless

contend (Br., III) that the Indian Reorganization Act of

1934 somehow limited tribal governmental powers, par-

ticularly over non-Indians. This is clearly not so.

It is true, as State Amici. note (Br., p. 10), that the

final Act was a very substantial rewrite of the bill orig-

inally proposed by the Interior Department. State Amici

speculate from some comments during the hearings on

the original bill that the purpose of this revision was to

limit tribal powers over non-Indian residents of reserva-

11 F.g., lowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987)

(The “Federal Government’s longstanding policy of encouraging

tribal self-government... .” is embodied in the IRA) ; Kerr-McGee

Corp. v. Navajo Tribe, 471 U.S. 195, 199 (1985) (“The 73d Con-

gress, in passing the IRA to advance tribal self-government, see

Williams v. Lee, 358 U.S. 217, 220 (1959), did nothing to limit the

established, preexisting power of the Navajo to levy taxes”) ; White

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980) (IRA

among “a number of congressional enactments demonstrating a

firm federal policy of promoting tribal self-sufficiency and economic

development.”) ; Washington v. Confederated Tribes of the Colville

Reservation, 447 U.S. 134, 168 (1980) (The “strong and oft-cited

policy of encouraging tribal self-government” and the “comple-

mentary interest in stimulating Indian economic and commercial

development”, “[b]both found expression in the Indian Reorganiza-

tion Act ... .”) (citations omitted); United States v. Wheeler,

435 U.S. 318, 328 (1978) (IRA “recognized that Indian tribes

already had such power [the power to try Indian offenders] under

‘existing law.’ See Powers of Indian Tribes, 55 I.D. 14 (1934)”);

Fisher v. District Court, 424 U.S. 382, 387 (1976) (IRA is “a

statute specifically intended to encourage Indian tribes to revitalize

their self-government.”) ; Morton v. Mancari, 417 U.S. 535, 542-43

(1974) (“The overriding purpose of that particular Act [IRA] was

to establish machinery whereby Indian tribes would be able to

assume a greater degree of self-government, both politically and

economically. ... The solution ultimately adopted was to strengthen

tribal government... .”).

12 Ten states (Arizona, et al.) have jointly filed an amicus brief

in this case. We refer to these as the “State Amici.”

16

tions. This conjecture is contrary to both the language

and legislative history of the Act."

The key language of the Act concerning tribal gov-

ernment authority, as State amici concede (Br., p. 16),

is in Section 16, 25 U.S.C. § 476. That section in per-

tinent part, reads:

In addition to all powers vested in any Indian

tribe or tribal council by existing law, the constitu-

tion adopted by said tribe shall also vest in such

tribe or its tribal council the following rights and

powers: To employ legal counsel, the choice of coun-

sel and fixing of fees to be subject to the approval

of the Secretary of the Interior; to prevent the sale,

disposition, lease, or encumbrance of tribal lands,

interests in lands, or other tribal assets without the

consent of the tribe; and to negotiate with the Fed-

wo B wee and local Governments. (Emphasis

a ‘

“Existing law” in 1934 confirmed tribal powers to tax

and civilly regulate activities by non-Indians. This

Court had expressly so held in Morris v. Hitchcock, 194

U.S. 384 (1904). And this tribal governmental authority

over non-Indian activities had been held to extend to

lands owned by non-Indians in fee within a reservation.

Buster v. Wright, 1385 Fed. 947 (8th Cir. 1905), appeal

dismissed, 203 U.S. 599 (1906). In 1934, it was also

clear that tribes possessed these governmental powers as

part of their inherent sovereignty, and not as powers

granted or delegated to them by the United States. This

Court had so held in Talton v. Mayes, 163 U.S. 376

(1896), dealing with the authority of the Cherokee tribal

court.

18 Throughout this discussion, references to “Senate Hearings”

are to Hearing on S. 2755 before the Senate Committee on Indian

Affairs, 73d Cong., 2d sess. (1934), and references to “House

Hearings” are to Hearing on H.R. 7902 before the House Com-

mittee on Indian Affairs, 73d Cong., 2d sess. (1934).

17

The Interior Department draft bill introduced in Feb-

ruary 1934 would have entirely changed the status of

tribes: by making tribes federal municipal corporations,

instrumentalities of the United States—-rather than

inherent sovereign entities. See, e.g., Note, Tribal Self-

Government and The Indian Reorganization Act of 1934,

70 Mich. L.Rev. 955, 962 (1972) (hereafter “Michigan

Note’).

BIA Commissioner Collier stated at the opening of the

House hearings, “the bill curbs Federal absolutism and

provides Indian Home Rule under Federal guidance.”

House Hearings, p. 18 (emphasis added). Throughout

their extensive consideration of the bill from February

through May, 1934, members of both the Senate and

House Committee complained that Interior’s bill con-

tained so much “Federal guidance” that it retained the

“Federal absolutism” that the Commissioner stated he

wished to curb. Title I of the Interior bill as originally

introduced, would have authorized the Secretary of the

Interior to issue a charter to any Indian tribe “granting”

that tribe “any or all . . . powers of government” enu-

merated in the bill as seen fit by the Secretary. S. 2755

and H.R. 7902, 73d Cong., 2d Sess., Title I, §§ 2, 4."

The Secretary would have had discretion over which

powers to grant tribes, and which to withhold.” More-

over, all tribes would have been subject to the Act,

whether they wished to be covered or not.

14 The original bill is App. A to the State Amici’s brief.

15 BIA Commissioner Collier repeatedly and unsuccessfully urged

that “this discretion is only a tithe of the existing discretion which

the bill curbs” and that “the grant of discretion was necessary be-

cause in no other way can the variety of conditions be met. Flexi-

bility is necessary.” E.g., House Hearings, p. 47, Commissioner’s

statement (starting the second day of hearings). As their subse-

quent statements and actions show, congressional leaders were un-

convinced and substantially changed the bill, among other reasons,

to eliminate this federal control.

18

The bill also contemplated establishing a new federal

Court of Indian Affairs under Title IV. This Court

would have had jurisdiction “[o]f all cases at law or in

equity arising out of commerce with any Indian tribe

. . or members thereof, wherein a real party in inter-

est is not a member of such tribe... ” as well as cer-

tain other cases including those to which any tribe is

a party. Title IV, §3(3). This Court of Indian Affairs

could order the removal to itself of any pending tribal

court cases, Title IV, § 5, and would hear appeals of all

tribal court decisions, Title IV, § 6.

These and other features of the bill—particularly

those features that represented compulsory Interior De-

partment and federal control over tribes—were strongly

resisted by members of both the Senate and House Com-

mittees on Indian Affairs, and by some tribes. Indeed, it

seemed likely by late April that the entire bill would be

rejected.'*

On April 28, however, President Roosevelt intervened

by letter to both Committee Chairman, see 78 Cong. Rec.

7959 (May 1, 1934); House Hearings, p. 233; Senate

Hearings, pp. 145-46. The President’s advocacy as to the

importance of the bill, and his power and prestige at this

16 This is particularly apparent from a colloquy at the Senate

Committee on Indian Affairs hearing that opened on April 30 be-

tween the principal participants in the Senate hearings—Com-

mittee Chairman Wheeler of Montana, Senator Ashurst of Arizona

and Senator Thomas of Oklahoma.

Senator Ashurst stated that “[i]t is well known I am opposed

to the bill . . . —the most important Indian bill ever brought

before Congress during my service.” He moved that a subcommit-

tee be appointed to review the bill. Senate Hearings, pp. 143-144.

A colloquy then ensued where each of the three Senators ex-

pressed doubts about the bill. (Jd. at pp. 114-145.) This colloquy is

quoted in part by State Amici in their brief, p. 12, n.8. As noted,

infra, however, President Roosevelt’s intervention changed this

viewpoint and convinced the opponents to support and enact the

final bill, as modified.

ee

=

19

early point in the New Deal, apparently convinced both

Committees to support the bill,’’ but only after working

with the Administration in extensively rewriting it, so

much so that—as Congressman Howard, Chairman of the

House Indian Affairs Committee, told the House—“the

original bill would not recognize this as its own child.”

78 Cong. Rec. 12164.

17 The coniext of the Senate Committee’s consideration of the

bill was dramtically changed, when, during the colloquy referred

to in note 16 and relied upon by State Amici, Chairman Wheeler

informed his colleagues:

I received a letter from the President Saturday in which

he gave whole-hearted support to the bill and said that he

was very anxious that the bill should be passed at this session

of Congress. I am anxious not to delay the consideration of

it but to try and get something worked out that can be worked

out that might be satisfactory to the Senator from Arizona

and to the different Senators. I think something can be

worked out of this bill. In its present form I think it has

many objectionable features, but my idea is that we can work

out something ... .”

Senate Hearings at 145-146.

A subcommittee proved unnecessary, because on May 17, Chair-

man Wheeler announced that, after he met with BIA Commis-

sioner Collier, the Interior Department produced a new “bill,

which eliminates, it seems to me, practically all of the matters

that are in controversy ....” Jd. at 237. The House Committee

went into executive session beginning May 9, and evidently re-

wrote the bill between then and May 17, in conjunction with

Commissioner Collier. House Hearings, pp. 497, 502-503. ‘With

some further technical modifications by the Senate Committee

and on the Senate floor, this modified bill was enacted.

In addition to persuading Chairman Wheeler to develop a modified,

compromise bill (discussed supra), President Roosevelt’s personal

intervention was also seen as critical to passage of the bill by

several Congressmen. 78 Cong. Rec. 11732 (Rep. Howard); 11743

(Rep. Frear). House Committee Chairman Howard’s disclosure

of the same letter to his Committee on May 1 persuaded committee

members that the President really did support the purposes of the

bill, and had not earlier “given his endorsement in a haphazard

way ... wholly unaware of the real purport of the bill.” House

Hearings, p. 234.

20

Title IV, which provided a separate Court of Indian

Affairs, was completely removed, leaving tribal courts

free to operate without federal interference. As nvied,

instead of tribes being “granted” those governmental

powers enumerated at great length in Title I at the suf-

ferance of the Department, Section 16 of the final Act,

25 U.S.C. §476, confirmed all powers held by tribes

“under existing law.” And Section 18 of the bill, 25

U.S.C. § 478, gave tribes the option of voting to be ex-

cluded from the Act’s provisions, which included adop-

tion of a modern constitution.

The explanations given by the two Committee Chair-

men—Senator Wheeler and Congressman Howard—and

other committee members when they presented the re

vised bill on the floors of the two houses, confirm that

the dominant purpose of the Committees’ revisions was

to free Indians from the heavy bureaucratic control of

the Interior Department contained in the Department’s

original draft. Congressman Howard, for example, ex-

plained the situation as follows:

. . . [i]n reality the Indians can only be described

as Federal peons.

Although many thousands of Indians are living

in tribal status on the various reservations, their

own native tribal institutions have very largely dis-

integrated or been openly suppressed, and the entire

management of Indian affairs has been more and

more concentrated in the hands of the Federal In-

dian Service. The powers of this Bureau over the

property, the persons, the daily lives and affairs of

the Indians have in the past been almost unlimited.

It has been an extraordinary example of political

absolutism in the midst of a free democracy—abso-

lutism built up on the most rigid bureaucratic lines,

18 This language was in both rcdrafts considered by the Com-

mittees after the President’s in‘ervention—Section 9 of the Sen-

ate bill and Section 17 of thc House bill. It became Section 16 of

the Act, 25 U.S.C. $476. See H.R. Rep. No. 2049, 73d Cong., 2d

Sess., (1934) p. 8 (Conference Report).

ee |

21

irresponsible to the Indians and to the public;

shackled by obsolete laws; resistant to change, re-

form, or progress;....

* * . *

... It is perfectly clear that the Indian, in order to

win a secure and self-respecting position in our

American community, must have not only economic

security and the chance of self-support, but must

also have constant practice in civic affairs and in the

management of property and business. The system

of guardianship hither to in effect has deprived the

Indian of this practice.

78 Cong. Rec. 11729 (Emphasis added).

Congressman Howard summarized “the ultimate goais

of the policy embodied in this bill” as including:

seek[ing] the functional and tribal organization of

the Indians so as to make the Indians the principal

agents in their own economic and racial salvation,

and ... progressively reduce and largely decentral-

ize the powers of Federal Indian Service. In carry-

ing out this program, the Indian Service will become

the adviser of the Indians rather than their ruler

.... [T]he new policy will constantly strengthen

the Indians, rather than weakening them.”

Id. at 11732.

Senator Wheeler explained the bill in similar fashion

to the Senate. Senator King of Utah stated (evidently

referring to the Interior Department’s original draft) :

I have been told that this bill may perpetuate the

Indian Bureau, and that the Indian Bureau has been

very anxious for a measure of this character . . .”

Senator Wheeler responded :

Let me say to the Senator there is not a provision

in this bill which superimposes upon the Indians

bureaucratic control from Washington. On the con-

trary, this bill proposes to give the Indians an oppor-

tunity to take over the control of their own resources

{

22

and fit them as American citizens. The bill as it

originally came from the Department had many ob-

jectionable features, which were eliminated from it.

Id. at 11124.

As noted, the “objectionable features” (see State

Amici Br., p. 16) the Committees “eliminated” from the

bill were mainly in Title I and Title IV. As finally pre-

sentel, the rewritten bill, with deletion of the extensive

federal control over tribal governments contained in the

original bill, and tribal option as to whether to come

under most provisions of the Act, was unanimously

passed by the Senate, Jd. at 11139—and unanimously

supported by the House Committee on Indian Affairs.

Id. at 11732. Even so, some members of the House op-

posed the final bill as retaining too much power in the

Interior Department over tribal governmental decisions.

Id, at 11734 (Rep. Beiter), 11736-37 (Rep. Carter).

The strengthening of tribal governmental authority

and lessening of federal control in the final bill were

seen by its congressional supporters as an important

“reversal of established policy.” E.g., 78 Cong. Ree.

11743 (Rep. Frear). As Congressman Howard said

(characterizing the provision that became Section 16 of

the Act): “[t]he psychological and moral effects of these

provisions for Indian incorporation and home rule are

bound to be far-reaching.” Jd. at 11731.

The complete legislative history of the Act, as well as

its language, overwhelmingly reject State Amici’s char-

acterization of its purpose and support prior holdings of

this Court. State Amici rely upon isolated, often out of

context statements—usually made before President

Roosevelt’s personal intervention with the Committees

changed the minds of key members.*”” The Indian Reor-

** As the Michigan Nete concludes “every section [of the IRA]

in some way affects tribal self-government.” 70 Mich. at 964.

* For example, Senator Wheeler’s statement (State Amici Br.,

p. 15) that “you are going entirely too far * * * in letting those

reese

23

ganization Act changed its method—from delegations of

enumerated authority to preservation of all existing au-

thority—but kept its same purpose and effect as a dra-

matic strengthening of tribal governments and a reversal

of earlier destructive policies.

CONCLUSION

The court below properly followed this Court’s rulings.

With regard to the closed portion of the Reservation, it

upheld exclusive tribal zoning authority. As to the open

portion, the court below upheld tribal power to zone fee

lands, and remanded for a determination of whether

off-reservation county interests could justify superimpos-

ing county zoning on the Tribe’s regulatory scheme. The

ruling of the court below should be affirmed.

~~ Respectfully submitted,

WILLIAM R. PERRY *

HARRY R. SACHSE

REID PEYTON CHAMBERS

SONOSKY, CHAMBERS & SACHSE

1250 Eye Street, N.W.

Suite 1000

Washington, D.C. 20005

* Counsel of Record (202) 682-0240

Dated: November 3, 1988

tribes set up rules and regulations,” Senate Hearings, p. 199, was

his reaction to Title IV’s proposal to create a separate federal

Court of Indian Affairs, and give that Court authority to remove

cases concerning off-reservation transactions involving Indians

from state courts, see Senate Hearings, p. 198. His comments on

Indian government were to the concept of chartered communities.

Similarly, Commissioner Collier, the chief Interior witness testify-

ing iu support of the bill, made the statement quoted by amici

(State Amici Br., p. 16) that non-Indians would “kick like steers”

if the Federal Court of Indian Affairs—which Collier supported as

did Congressman DePriest, with whom he was talking—were en-

acted. The special federal court, of course, was not enacted, and

Title I was changed to support inherent tribal governmental au-

thority rather than making tribes creatures of authority delegated '

by the Secretary of the Interior.