Petitioners Brief — Wilkinson v. Confederated Tribes & Bands of the Yakima Indian Nation

Supreme Court brief1988

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IN THE FIL

Supreme Court of the United Staten SEP |

OCTOBER TERM, 1988 JOSEPH F.

PHILIP BRENDALE,

" Petitioner,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et al.,

Respondents.

STANLEY WILKINSON,

. Petitioner,

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION,

Respondent.

COUNTY OF YAKIMA, et al.,

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 PETITIONER STANLEY WILKINSON

DALE B. RAMERMAN *

RONALD T. SCHAPS

MICHAEL MIRANDE

BOGLE & GATES

2300 Bank of California Ctr.

Seattle, WA 98164

(206) 682-5151

Counsel for Petitioner

Stanley Wilkinson

* Counsel of Record

WILSON - Eras PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Does the Yakima Indian Tribe have the authority

to control through comprehensive zoning the use of fee

land located within both Yakima County and the Yakima

Reservation when that land has been alienated pursuant

to the federal policy of land allotment to Reservation

residents who are not members of the Yakima Tribe, and

when the land in question has previously been subject to

Yakima County’s zoning authority?

2. Does a federal court of appeals proceed properly

under Fed. R. Civ. P.52(a), when it independently deter-

mines whether a tribe may exercise authority over the

fee-owned land of non-members of the tribe despite dis-

trict court findings that the factual predicates for the

existence of tribal authority are absent?

3. May Congress, consistent with the Fifth Amend-

ment to the United States Constitution, sanction a tribe’s

comprehensive regulation of the reservation fee land of

non-members, when those non-members are disenfran-

chised on the basis of ancestry and cultural affiliation

from participation in tribal government, and when they

may not secure direct judicial review of tribal land use

decisions?

(i)

LIST OF PARTIES

The petitioners are: Stanley Wilkinson, a non-member

of the Yakima Tribe who owns and resides upon land

located within both Yakima County and the Tribe’s Res-

ervation; the County of Yakima and its three County

Commissioners, Jim Whiteside, Graham Tollefson and

Charles Klarich; Richard F. Anderwald, the Director of

Yakima County’s Planning Department; and, Philip

Brendale, a non-member of the Tribe who owns land

within the Reservation. The respondent is the Confed-

erated Tribes and Bands of the Yakima Indian Nation.

Jim Gatliff and Dick Keller, who at the time of suit were

prospective purchasers of a portion of petitioner Wilkin-

son’s reservation land, were aligned as defendants-

appellees below and have filed a notice of appearance in

this matter.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...0220222222.2.2.2.2-ceeceececeececeneeeees

ELE a a

cell cacniccrccsccsecnsceeceessoonocece

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES AND RULES INVOLVED ..............

STATEMENT OF THE CASE .u00222.....2..c-ccccecececeeeeeeee-

ESS

The Treaty With The Yakima and the evolution

Ne cieeseertecennes

EST

Wilkinson’s property and the decisions below....

SUMMARY OF ARGUMENT W002... ceccecececeeeeeeeee

eee

Neither inherent tribal sovereignty nor the

Treaty With The Yakima support the Yakima

Indian Tribe’s claim that it possesses the power

to regulate the use of fee land within the bound-

aries of its Reservation when that land has

been conveyed to non-members of the Tribe

pursuant to the federal policy of land allot-

A SAT

A. The Yakima Tribe’s dependent status is nec-

essarily inconsistent with retention of an in-

herent power to control the use of property

owned in fee by non-members of the Tribe...

(iii)

TABLE OF CONTENTS—Continued

Page

1. Tribal sovereignty entails only what is

necessary for the Tribe to govern its

S| eee 26

2. Tribal authority over the fee land of

non-members constitutes an impermissi-

ble intrusion into those non-members’

Civil rights ................0...-csc--scseserecssensssssesosoees 30

3. Regulatory authority over non-member

fee land is not necessary to the Tribe’s

political integrity, economic security or

ee ee 31

B. The federal policy of land allotment has di-

vested the Yakima Tribe of any Treaty right

to regulate the use of non-member fee land

within its Reservation ...............------------s:+--s++ 33

1. The Allotment Act divested the Tribe of

power over non-member owners of fee

a em eee nr ee 34

2. The Reservation’s demographic charac-

teristics illustrate Congress’s intent to

displace tribal authority over allotted,

non-member fee land ..............--.---------------+- 37

8 The Ninth Circuit’s decision ignores the

allotment policy and turns on inappro-

priately political considerations ..............-. 38

C. The Ninth Circuit proceeded improperly un-

der Federal Rule of Civil Procedure 52(a)

when it independently redetermined whether

the Tribe possessed authority over the use

of non-member fee land within the Reserva-

Cee -- padeseuntnetanpinadpiiataniiasaianenensinnittendinnemets 41

II. The Ninth Circuit’s decision should be reversed

because it sanctions a delegation of unconstitu-

tional authority over non-members of the Tribe.. 42

CONCLUSION ........-------:--ee--eeeecseeeeeersesneeeecesenssnnsnnsennesnneees 45

oma ORS

TABLE OF AUTHORITIES

Cases Page

Anderson v. City of Bessemer City, North Caro-

Samm, re Te, I CI acne 42

Ashwander v. TVA, 297 U.S. 288 (1936)... 45

Bi-Metallic Company v. Colorado, 239 U.S. 441

fA ies SRR a ae SE 43

Bose Corporation v. Consumers Union of United

States, Inc., 466 U.S. 485 (1984) 0000000. 42

Burton v. Wilmington Parking Authority, 365

II Pict iadicctet eta ie 25, 43

Confederated Tribes And Bands Of The Yakima

Indian Nation v. County of Yakima, et al., No.

C-87-654-AAM (E.D. Wa. 1988) 000000000000. 11

DeCoteau v. District County Court For The Tenth

Judicial District, 420 U.S. 425 (1975)... 37, 40

Draper v. United States, 164 U.S. 240 (1896) ........ 34

Dry Creek Lodge, Inc. v. Arapahoe and Shoshone

Tribes, 623 F.2d 682 (10th Cir. 1980), cert. de-

nied, 449 U.S. 1118 (1981) ................................... 44

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, California,

482 U.S. ——, 107 S. Ct. 2378 (1987) ............ 30, 43

Fletcher v. Peck, 6 Cranch (10 U.S.) 87 (1810)... 27

Garcia v. San Antonio Metropolitan Transit Au-

thority, 469 U.S. 528 (1985) ......0020.0.0 25, 39

Iowa Mutual Insurance Company v. La Plante, 480

if ee fF SS | ey: eenennnnra 43

Knight v. Shoshone and Arapahoe Indian Tribes,

670 F.2d 900 (10th Cir. 1982) 0.0.00... 32

Londoner v. Denver, 210 U.S. 373 (1908) _.............. 43

Luther v. Borden, 7 How. (48 U.S.) 1 (1849)... 39

Lyng v. Northwest Indian Cemetery Protective

Association, U.S. ——, 108 S. Ct. 1319

NEE cclhisstatedadecdetisbcsnsorilniesltdbsdcsnatslacasep cb viaiaintteetecss 44

McClanahan v. Arizona Tax Commission, 411 U.S.

A ERIE TE RSENS ar de ee Re 28

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

I sbeitaeereiitendindibeaandiataiaetisin hibit tabaieeathtamstten atta 28

Mescalero Apache Tribe v. Jones, 411 U.S. 145

GREE REE Ra es NS RE 26

TABLE OF AUTHORITIES—Continued

Page

Moe v. Confederated Salish and Kootenai Tribes

of the Flathead Reservation, 425 U.S. 463

(1976) .....-0-0.------c-ccerecsenseenesersoceenocssnnsnnens: snnsnescenessens 40

Montana v. United States, 450 U.S. 544 (1981) ....passim

National Farmers Union Insurance Company V.

Crow Tribe, 471 U.S. 845 (1985) .........-..------------- 44

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

BQA (19BB) ........--.---------nceesennceeneeencescessnsensenneenneees 22, 26, 35

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

(DDTB) aacnnnnsnnsec-cnvensstoncvscsesesnrennsncngotonnanesens 24, 27, 30, 31, 44

Puyallup Tribe, Inc. v. Department Of Game Of

The State Of Washington, 433 U.S. 165 (1977).. 34

R.J. Williams Company v. Fort Belknap Housing

Authority, 719 F.2d 979 (9th Cir. 1983), cert.

denied, 472 U.S. 1016 (1985) .......--.----------------+---+ 44

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(2DTT) nnnnnecevecenneersn--ccsvoeeceneceserensnnsenenncsnssenconsseeress 24, 37, 38

Santa Clara Pueblo v. Martinez, 436 U.S. 49

(19778) ......-.--.0cce-n-ncsec--cnenssocsensnnssncsssnncenssnsensensersesssess 28, 44

Seymour v. Superintendent of Washington State

Penitentiary, 368 U.S. 351 (1962) ............-..-------.- 40

Solem v. Bartlett, 465 U.S. 463 (1984) ................----. 37, 38

Talton v. Mayes, 163 U.S. 376 (1896) .............-------- 28

Three Affiliated Tribes Of The Fort Berthold Res-

ervation v. Wold Engineering, 476 U.S. 877

(19B6) .......-..2--0----ccscesensees srannsecsscneersesnassncensessnnensneses 44

Trans-Canada Enterprises, Ltd. v. Muckleshoot

Indian Tribe, 634 F.2d 474 (9th Cir. 1980) ........ 44

United States v. Kagama, 118 U.S. 375 (1886)... 27

United States v. Mazurie, 419 U.S. 544 (1975)... 42

United States v. Montana, 604 F.2d 1162 (9th Cir.

1979), rev'd, 450 U.S. 544 (1981)..............-.--------, 22

United States v. Sioux Nation of Indians, 448 U.S.

B71 (1GBO) -2-..-.20------cenesenceneneeseseonencecsresennsecsees seeeees 40

United States v. Wheeler, 435 U.S. 313 (1978) ........ 27, 42

Village of Euclid v. Ambler Realty, 272 U.S. 365

(1GBB) ....00------00e2-e0-c-cnsecsecerenesrssnseesensssonoreonsernsensnnens 30, 43

Washington v. Confederated Bands And Tribes Of

The Yakima Indian Nation, 439 U.S. 463

(1979)

Vii

TABLE OF AUTHORITIES—Continued

| Page

Wesberry v. Sanders, 376 U.S. 1 (1964) .............. 30, 43, 44

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

136 (1980) _.... ie ce SN, en AR NE ae 22

Williams v. Lee, 358 U.S. 217 (1959)... 26

Winters v. United States, 207 U.S. 564 (1908). 32

Worcester v. Georgia, 6 Pet. (31 U.S.) 515

a nae NES) al RR RE, i ea A ee 26

Federal Constitution

a ..0, 25, 42, 43, 44

Washington Constitution

I 4

Statutes, Administrative Regulations, & Court Rules

TTT RM EEL passim

i 36

EE ce a 36

a cccedouumusesausninaeses 28

EEN 2

ET ENS 44

SE ETT RE) 17

EES a 17

AES a 18

Act of July 23, 1894, c. 152, 28 Stat.118 &

Act of March 1, 1899, c. 324, 30 Stat.940 g

Act of May 31, 1900, c. 598, 31 Stat. 246... 7

Act of December 21, 1904, c. 22, 233 Stat. 595 7

Act of March 6, 1906, c. 518, 34 Stat. 53 7

Act of May 24, 1922,c. 199,42 Stat.552.... 8

Act of June 7, 1985, c. 197, 49 Stat. 330... 9

Act of September 26, 1961, Pub. L. 87-316, 75 Stat.

(RUSTE TAR AMES ty) TaD 8

SEE 3, 4, 25, 41, 42

EET ee ae ee ee sae 4

ES ae en Ee 13

EN TD 13

Ian 13

viii

TABLE OF AUTHORITIES—Continued

Treaties Page

Treaty With The Omaha, 10 Stat. 1043 (1854) ........ 6

Treaty of Medicine Creek, 10 Stat. 1132 (1855).... 33, 34

Treaty With The Yakima, 12 Stat. 951 (1859) -......- passim

Other Authorities

F. Cohen, Handbook of Federal Indian Law

(1Q4D) .....200-c-c--nccrenevrensenenrenscsensenseneners tlle taiiilas 26

C. Kappler, Indian Affairs, Laws And Treaties......6, 7, 8, 9

C. Relander, Strangers On The Land (1962) .......... 7

N. Williams, American Land Planning Law

(1974) ....-c-cec-a-ncecensneeseseccnessnnsecosensncnsnsnseseenenaserorenees 23

Senate Report No. 847, 84th Cong., 1st Sess........... 36

Comment, Jurisdiction To Zone Indian Reserva-

tions, 58 Wash. L. Rev. 677 (| 23

IN THE

Siren Cut of the Wuited States

OCTOBER TERM, 1988

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

PHILIP BRENDALE,

“ Petitioner,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et al.,

Respondents.

STANLEY WILKINSON,

Petitioner,

Vv.

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Respondent.

COUNTY OF YAKIMA, et al.,

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 PETITIONER STANLEY WILKINSON

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 828 F.2d 529 (9th Cir. 1987), and

is reprinted in the Appendix to Wilkinson’s Petition For

A Writ Of Certiorari at page 3a.

The opinions of the District Court in Whiteside I and

Whiteside II are reported, respectively, at 617 F. Supp.

735 and 617 F. Supp. 750, and are reprinted in the

Appendix to Wilkinson’s Petition For A Writ Of Cer-

tiorari at pages 108a and 33a.

The District Court’s orally delivered Findings Of Fact

And Conclusions Of Law in Whiteside II are unreported,

but are reprinted at page 80a of Wilkinson’s Petition

For A Writ Of Certiorari (“W. Pet.”), while its un-

reported oral opinion in Whiteside I is reprinted at page

40 of the Appendix to Brendale’s Petition For A Writ

Of Certiorari.

JURISDICTION

The Court of Appeals for the Ninth Circuit entered

a judgment and order on September 21, 1987 affirming

the District Court’s decision in Whiteside I, and revers-

ing and remanding the District Court’s decision in

Whiteside II. (W. Pet. 3a.)

On January 13, 1988, the Court of Appeals for the

Ninth Circuit entered an order denying the Coutity of

Yakima’s timely filed petition for rehearing. (County of

Yakima’s Petition For A Writ Of Certiorari at 17-A.)

Petitioner Wilkinson invoked this Court’s jurisdiction

to review the Ninth Circuit’s judgment pursuant to 28

U.S.C. § 1254(1). This Court granted Wilkinson’s peti-

tion for certiorari on June 20, 1988. On that same date,

this Court also granted petitioners Brendale and the

County of Yakima certiorari. It then consolidated these

matters, bringing both Whiteside I and Whiteside II

before this Court. (Joint Appendix (“Jt. App.”) 10,

Docket Entry of June 27, 1988.)

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES AND RULES INVOLVED

Fifth Amendment To The United States Constitution:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

Treaty With The Yakima, 12 Stat. 951, reprinted in

W. Pet. 172a.

The Allotment Act of 1887, 24 Stat. 388, as amended,

25 U.S.C. § 331 et seq., reprinted in W. Pet. 194a.

Federal Rule of Civil Procedure 52(a) :

Rule 52. Findings by the Court

(a) Effect. In all actions tried upon the facts,

without a jury or with an advisory jury, the court

shall find the facts specially and state separately its

conclusions of law thereon, and judgment shall be

entered pursuant to Rule 58; and in granting or

refusing interlocutory injunctions the court shall

similarly set forth the findings of fact and conclusions

of law which constitute the grounds of its action.

Requests for findings are not necessary for purposes

of review. Findings of fact, whether based on oral

or documentary evidence, shall not be set aside unless

clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge of the

credibility of the witnesses. The findings of a master,

to the extent that the court adopts them, shall be

considered as the findings of the court. It will be

sufficient if the findings of fact and conclusions of

law are stated orally and recorded in open court fol-

lowing the close of the evidence or appear in an

opinion or memorandum of decision filed by the court.

Findings of fact and conclusions of law are unneces-

sary on decisions of motions under Rules 12 or 56

or any other motion except as provided in Rule 41 (b).

STATEMENT OF THE CASE

A. Introduction

These consolidated cases present the question of whether

the County of Yakima, Washington,’ or the Yakima

Indian Tribe has the authority to regulate the use of

land owned in fee by non-members of the Tribe, when

that federally allotted land is located in Yakima County

but within the exterior boundary of the Yakima Indian

Reservation. Petitioner Wilkinson’s case (“Whiteside

II’), concerns the conflicting claims of County and Tribe

to the authority to zone a piece of his fee land located

on the edge of an approximately 350,000 acre portion of

the 1.3 million acre Reservation termed the “open area”.

That region, approximately half owned in fee, has a

population that is 80% non-Indian. The County has exer-

cised regulatory jurisdiction over non-trust land in the

open area for a hitherto uninterrupted period of thirty-

five years. Petitioner Brendale’s case (“Whiteside I”),

concerns fee land he owns within the other two-thirds

of the Reservation. That region is termed the “closed

area,” and is primarily uninhabited timber acreage and

range land. The County has asserted jurisdiction over

closed area fee land as well.

The District Court held in separate actions that the

County possessed exclusive zoning jurisdiction over the

Wilkinson property, and that the Tribe held that author-

ity over Brendale’s land. In a decision embracing both

cases, the Ninth Circuit Court of Appeals affirmed the

1 Yakima County is a political subdivision of the State of Wash-

ington. See Wash. Const. Art. XI. The County exercises its land

use authority pursuant to the State Constitution and state land use

planning statutes. See Wash. Const. Art. XI, § 11; RCW Ch. 36.70.

result as to Brendale, but reversed the Wilkinson ruling.

It held that the Tribe had the sovereign authority to zone

comprehensively all of the land within its Reservation.

By so ruling, the Ninth Circuit inappropriately expanded

Tribal authority beyond self-government to include power

over the constitutionally protected interests of non-

members who, although citizens residing within these

United States, may not participate in Tribal government,

nor secure direct judicial review—in federal, state or

Tribal Court—of Tribal land use decisions affecting their

property.

B. The Treaty With The Yakima and the Evolution

of the Reservation

In 1855, Isaac Stevens, the governor of the Territory

of Washington, negotiated a treaty between the United

States and fourteen separate bands of Indians that occu-

pied lands extending from Mt. Rainier in the west to the

south-central portion of what is now the State of Wash-

ington. (Wilkinson’s Petition For A Writ Of Certiorari

(“W. Pet.”) 172a-177a.) For purposes of the Treaty, the

fourteen tribes and bands joined together and were to

be considered the Yakima Indian Nation (“Tribe” or

“Yakimas”). (W. Pet. 173a-174a.)

In the Treaty, the Yakimas ceded to the United States

certain of their lands and acknowledged their dependence

upon the federal government. (W. Pet. 174a-177a, 187a.)

The Tribe did, however, reserve from the ceded lands a

tract that was to be

set apart, and, so far as necessary, surveyed and

marked out, for the exclusive use and benefit of said

confederated tribes and bands of Indians, as an In-

dian reservation; nor shall any white man, excepting

those in the employment of the Indian Department,

be permitted to reside upon the said reservation with-

out permission of the tribe and the superintendent

and agent.

(W. Pet. 178a.)

The Treaty provided for the allotment of land to mem-

bers of the Tribe. (W. Pet. 186a).2 The Treaty also

identified certain limits on the Tribe’s ability to act in

the criminal and civil spheres. In the same treaty ar-

ticle in which they acknowledged their dependence on

the United States, the confederated tribes pledged them-

selves not to commit “depredations” upon the property of

United States citizens and to pay compensation for any

Indian taking or destruction of non-Indian property. (W.

Pet. 187a.) The Tribe agreed “not to shelter or conceal

offenders against the laws of the United States, but to

deliver them up to the authorities for trial.” (W. Pet.

188a.) Further, the Tribe enlisted federal assistance in

excluding the use of alcohol from the Reservation. (W.

Pet. 188a-189a. )

The Senate ratified the Treaty With The Yakima on

March 8, 1859. President James Buchanan signed it on

April 18, 1859. (W. Pet. 191a-193a. )

The allotment of Reservation land commenced soon

after the Treaty became law:

Article VI of the Treaty provided authority

whereby agents could allot land. This system of

granting farms to individuals was employed almost

from the beginning.

2 The Treaty shows that it also contemplated the possibility of sale

of allotted land to non-Indians. Article VI of the Treaty With The

Yakima, dealing with allotments, incorporates by reference the

sixth article of the Treaty With The Omaha. (W. Pet. 186a). That

cross-referenced article reflects the federal policy of encouraging

Indian assimilation, but also provides that if an allottee neglected

the “pursuits of industry” or resumed to “rove,” the federal govern-

ment could deem his allotment abandoned and, under certain cir-

cumstances, sell it for the Omaha’s benefit pursuant to “such laws,

rules or regulations, as may hereafter be prescribed by the Congress

or President of the United States.” Article VI, Treaty With The

Omaha, 10 Stat. 1043 (1854), reproduced in 2 C. Kappler, Jndian

Affairs, Laws And Treaties at 612-613 (1904).

(C. Relander, Strangers On The Land (1962) at 58. The

portion of this volume that addresses the allotment proc-

ess appears in the District Court record as Exhibit 248

(“Ex. 248”), see Transcript Of Proceedings in White-

side II (“Tr.”) 556, 557.) In 1871, Felix Brunot, the

President of the first board of Indian commissioners con-

cerned with the Yakimas, visited the Reservation and

recommended the further use of allotments. (Ex. 248 at

59.) He also recommended that allotted land be inalien-

able for two or three generations. (Jd.) Even at that

early date, therefore, sixteen years before the passage

of the Allotment Act, Feb. 8, 1887, c. 119, § 2, 24 Stat.

388, federal officials contemplated that in the usual course

allotted land would eventually be alienable. (Ex. 248 at

59.)

Allotment proceeded on the Reservation but did not be-

gin in earnest until after passage in 1887 and subsequent

amendment in 1892 of the Allotment Act. (Ex. 248 at

59-60; W. Pet. 194a-214a.) These Congressional enact-

ments changed the Reservation. Federal records show

that as of December 1, 1902, the Reservation contained

171,220 acres of allotted land. 1 C. Kappler, Indian Af-

fairs, Laws And Treaties (“Kappler”) (1904) at 1046.

“By 1905 a total of 2,484 allotments had been issued. In

1914 when the rolls were closed 440,000 acres had been

allotted to 4,506 individuals.” (Ex. 248 at 60.) The al-

lotments arose not just pursuant to the Treaty and the

Allotment Act, but also under the authority of several

statutes providing specifically for the sale of land within

the Yakima Reservation. See, e.g., Act of December 21,

1904, c. 22, 233 Stat. 595 ( providing for the sale of

surplus and unallotted Reservation land) & Act of March

6, 1906, c. 518, 34 Stat. 53 (providing for the sale of

surplus, unallotted and allotted land), reprinted respec-

tively in 3 Kappler at 110 & 159 (1913).

During this same period, the Reservation saw in-

creased development and non-Indian settlement of allotted

land. The towns of Wapato and Toppenish, located within

the borders of the Reservation, began their ultimately

successful efforts to become incorporated cities. These

efforts included the private marketing of platted fee land.

(Ex. 248 at 64.) For both cities, the record reflects that

the non-Indian developers perceived that the allotment,

sale, platting and re-sale of land, and the incorporation

of cities, would lead to “police protection” and the non-

Indian (or non-federal) control of alcohol regulation.

(Ex. 248 at 64.)

Congress further encouraged non-Indian settlement on

the Reservation by early providing for Indian leasing

to non-Indians of allotted land. See, ¢.g., Act of March

1, 1899, c. 324, 30 Stat. 940, in 1 Kappler at 686 and

Act of May 31, 1900, c. 598, 31 Stat. 246, in 1 Kappler

at 701 (both providing for the Indian leasing of allotted

land). Congress has also pursued consistently a pro-

gram to irrigate land within the Reservation to make

it attractive to Indians and non-Indians for farming.

See, e.g., Act of July 23, 1894, ¢. 152, 28 Stat. 118 in 1

Kappler at 516; Act of May 24, 1922, c. 199, 42 Stat.

552, in 4 Kappler at 337, 357 (1929); Act of September

26, 1961, Pub. L. 87-816, 75 Stat. 680, in 6 Kappler at

946 (providing for development of irrigation for Indian

and non-Indian water users).

With the allotment process came local governmental

presence on the Reservation. Congressional action illus-

trates at least one example of the federal awareness of

local governmental provision of services within the Yak-

ima Reservation. The example concerns the public schools

in the City of White Swan, which is located in what is

now the closed area of the Reservation. Article V of the

Treaty required the United States to establish schools on

the Reservation (W. Pet. 182a-183a) ; it is apparent that

by 1935 Congress perceived cooperation with established

local authorities to be the best method of satisfying this

obligation. On June 7 of that year, Congress authorized

the expenditure of federal funds “for the purpose of

cooperating with White Swan School District, Numbered

88, Yakima County, Washington for extension and im-

provement of public school buildings’, the condition for

such funding being that Indian children be permitted to

go to these public schools on the same terms, except for

tuition, as non-Indian children. See Act of June 7, 1935,

ec. 197, 49 Stat. 330 (emphasis added), in 5 Kappler

(1941) at 428.

It is against this background that the Tribe and the

County took the steps that eventually lead to the Wilkin-

son and Brendale cases.

C. The Current Character Of The Reservation

1. The Closed Area

In 1954, the Tribe declared that the western two-thirds

of the 1.3 million acre Reservation—about 807,000 acres,

of which 740,000 are in Yakima County—was “ ‘to re-

main closed to the general public’”. (W. Pet. 114a.)

Since that date, the Tribe has restricted access to the

closed area to members of the Tribe and those holding

permits from the Tribe or the Bureau of Indian Affairs

(“BIA”). (W. Pet. 115a-116a, 128a.)

The allotment process had made some lasting in-roads

into this area of forest and range land. Of the 740,000

acres of closed area land in Yakima County, about 25,000

are held in fee, leaving approximately 715,000 acres of

Tribal trust land in the closed area within the County.

(W. Pet. 128a-129a.) United States Highway 97 crosses

a portion of this region. (W. Pet. 114a.) Other roads

into the closed area are maintained by the BIA. (Jd.)

In 1972, the BIA restricted the use of its roads to those

otherwise permitted to enter the closed area. (W. Pet.

115a.)

The Tribe derives 90% of its income from timber op-

erations conducted in the closed area. (Tr. 122-124; W.

Pet. 136a.) To the extent those operations involve fee

land, the record in Whiteside I reflects that they are sub-

ject to State regulation under Washington’s Forestry

Practices Act. (Transcript of Proceedings in Whiteside I

(“Br.Tr.”) at 606.)

Petitioner Philip Brendale owns 160 acres of land inside

the closed area. Brendale, who is part Indian but ap-

parently of insufficient blood to be enrolled as a member

of the Tribe, inherited his fee land from his mother in

1972; she had acquired her patent for the allotted land in

1963. (W. Pet. 123a-124a.)

2. The Open Area

The other one-third of the Reservation is termed the

open area. That region, which embraces Wilkinson’s prop-

erty, consists of approximately 350,000 acres (W. Pet.

83a), about half of which is fee-owned (W. Pet. 40a).

About 25,000 people live in the open area. Eighty percent

of those residents are non-Indian. (Tr. 499; W. Pet. 51a.)

The open area includes the incorporated cities of Harrah,

population 345; Toppenish, population 6,575; and Wapato,

population 3,310. (Tr. 538; W. Pet. 51a.) See generally,

Ex. 200, Jt. App. 79; Tr. 28, 29, 344-346.

The open area plays a significant role in Yakima

County’s primarily agricultural economy. Yakima County

contains 14 of the irrigated land in Washington, and in

production is one of the top 20 farm counties in the

United States. (Tr. 416-417; Ex. 244 at 1-2, Tr. 420, 424,

425.) A little less than 14 of that production is attrib-

utable to land within the Reservation, which contains

about 143,000 of the 330,000 irrigated acres in Yakima

County. (Tr. 416-417; Ex. 244 at 1.) Of the 143,000

irrigated acres within the Reservation, 63,179 are owned

in fee by non-members of the Tribe, and 67,466 are

3 These and the immediately following agricultural statistics are

based on figures from 1980-83, which were used in the trial court

proceedings of 1984. (See Ex. 244.)

leased to non-members, leaving about 12,355 acres farmed

by Indians. (Tr. 422 & 418.) The irrigated Reservation

fee land owned and farmed by non-members yields greater

than 50% of the agricultural income attributable to lands

within the Reservation, even though it comprises less than

50% of the Reservation’s irrigated acreage, because it is

planted in permanent crops, such as apples. (Tr. 422-23.)

The County of Yakima maintains close to five hundred

miles of public roads in the open area, and provides

public education for both Indian and non-Indian children

residing on the Reservation. (W. Pet. 52a, 88a; Tr. 144-

146.) The County provides police protection on the Reser-

vation. (Tr. 286, 295, 547.) It also provides all Reserva-

tion residents with a full array of social and health serv-

ices, including programs concerned with recreation,

mental health, alcoholism, drug abuse and youth protective

services. (Tr. 546-547.) The County provides legal serv-

ices, such as indigent defense, and such other services as

those related to the conduct of local and national elec-

tions. (/d.) At the time of Wilkinson’s trial, the County

collected property tax on deeded, but not trust land within

the Reservation. (Tr. 548.)+

The Tribe also provides governmental services in the

open area. The Tribe provides police protection in co-

operation with Yakima County. (Tr. 286, 291.) The Tribe

also maintains a range of social service and other pro-

grams. (Tr. 126-130.) As a then member of the Yakima

Tribal Council testified, however, while theoretically open

to all, those programs actually serve only Indian residents

of the Reservation. (Tr. 143-144.)

*On May 10, 1988, Judge Alan A. McDonald of the Eastern Dis-

trict of Washington entered a judgment precluding the County

from taxing Reservation fee land owned by Tribal members. Con-

federated Tribes And Bands Of The Yakima Indian Nation v.

County of Yakima, et al., No. C-87-654-AAM. That case is on appeal

to the Ninth Circuit. Dkt. #88-3926.

All adult citizens of Yakima County, whether Indian or

non-Indian, and whether or not resident on the Reserva-

tion, are eligible to register and vote in County elections.

Only adult enrolled members of the Tribe are eligible to

participate in Tribal elections. (Tr. 169.)

D. County And Tribal Land Use Regulation

In The Open Area

There are significant procedural and substantive dis-

tinctions between County and Tribal land use regulation.

1. County Regulation

Yakima County regulates all fee land within its borders

except that contained within incorporated cities. (Tr. 545,

442-446.) It does not regulate Tribal trust land. (W. Pet.

47a; Tr. 526-529.) Yakima County began regulating the

use of land within its borders in 1946 under a temporary

zoning resolution. (W. Pet. 48a; Tr. 437.) In 1965, the

County adopted its first zoning law. (W. Pet. 43a.) In

1972, it adopted its first comprehensive zoning ordinance,

which was in substance readopted in 1974 after it was

struck down for a procedural defect. (Jd.) The County

has sub-area plans to coordinate development in the cities

of Toppenish, Harrah and Wapato. (Tr. 443-444.) The

Tribe participated in preparing the Toppenish and Wapato

plans. (Br.Tr. 467.) In 1981, the County adopted a rural

land use plan and in 1982 it adopted a new, two-tier

scheme of agricultural zoning mandating lot sizes of

either 40 or 20 acres. (Tr. 450; W. Pet. 44a-45a.) The

County Code also provides for a zone called “General

Rural,” which allows for subdivisions of lots averaging

one acre in size. (W. Pet. 45a-46a.) The County has a

comprehensive subdivision ordinance. (Tr. 453.) The

County’s goal in this regulation is the preservation of

agricultural land through the encouragement of clustered

development around cities. (Tr. 442-443; W. Pet. 45a.)

Since 1974, pursuant to State law, the County has had

a shorelines master program regulating the use of all

shorelines within the County, including those of the Yak-

ima River and Ahtanum Creek on the Reservation. (Tr.

495-496.) In 1974, the County began participating in the

federal flood insurance program, which allows all Reserva-

tion residents of deeded land—both Indian and non-Indian

—to participate in that scheme. (Tr. 496-497; W. Pet.

46a.) Also, pursuant to Washington’s Environmental Pol-

icy Act, RCW § 43.21C, the County requires environ-

mental review prior to approval of land use decisions.

(W. Pet. 46a-47a.) In implementing environmental stand-

ards, the County has provided notice to the Tribe as a

“consulted agency” on all land use questions with potential

environmental implications for the Reservation. (Tr. 494-

495.)°

Those aggrieved by County land use decisions have a

right to an administrative appeal and judicial review. (See

Ex. 212, Section 15.13.090, TR. 344.)

The record shows the County’s history of regulating

deeded land on the Reservation. For example, since 1965,

the County has processed 148 short plats for land on the

Reservation, and has processed fourteen long plats on such

land since 1970. (Tr. 455 & 457.) In fact, the evidence

shows that the Tribe submitted for County processing a

long plat application for some of the Tribe’s Reservation

land. (Tr. 455.) Since 1972, the County has issued 780

building permits for on-Reservation construction, and

since 1974, it has processed 44 special use permit files,

nineteen variances, and eleven rezoning applications con-

cerning fee land within the Reservation. (Tr. 498, 538.)

® Under the regulations implementing Washington’s Environ-

mental Policy Act, the agency with the main responsibility for

performing environmental review of a proposal is to consult other

agencies with jurisdiction or expertise in a given matter for assist-

ance. Such an assisting agency is a “consulted agency” under State

law. See WAC 197-11-724. See also WAC 197-11-500(2) (authoriz-

ing lead agency contact with a consulted agency).

2. Tribal Regulation

The Tribe also asserts land use jurisdiction over the

Reservation but, in contrast to the County (which does

not zone Tribal trust land), asserts that authority over

all land, whether or not owned by the Tribe. (Tr. 117,

188; Ex. 6, Tr. 28, Jt. App. 38.) In 1970, the Tribe

adopted its first zoning ordinance, which was modeled on

Yakima County’s then existing code. (W. Pet. 40a.) In

1972, the Tribe adopted its currently effective Amended

Zoning Ordinance. (W. Pet. 41a.) This ordinance is pat-

terned after the County’s earlier adopted 1972 Code. (Tr.

193-194.) The Tribe’s code contains one zone—“agricul-

tural”—for farm land, which requires a minimum lot size

of five acres. (W. Pet. 42a; Jt. App. 56-59.) As applied

in the open area, the Tribal Code, in harmony with the

County code, has as its primary purpose the preservation

of agricultural land. (W. Pet. 92a-93a; Jt. App. 39.)

Applications under the Tribe’s ordinance are handled

by a zoning administrator and a Board of Adjustment

comprised of Tribal Council members. (Tr. 115, 185; Jt.

App. 47, 49-54.) There is no right to direct judicial

review—either in Tribal, state or federal court—of Tribal

zoning decisions. (Tr. 158-159; Br.Tr. 184.) The Tribe’s

code leaves no room for doubt on this matter; it equates

judicial review with sovereign immunity. Section 10 of

the Tribal ordinance, which addresses an aggrieved party’s

access to judicial review of land use decisions, reads in

its entirety:

APPEAL FROM THE BOARD OF ADJUSTMENT

Nothing in this ordinance shall be construed to be

a waiver of sovereign immunity by the Yakima Indian

Nation, and its officers and agents.

(Jt. App. 54.) Despite this lack of judicial review, the

Tribe’s zoning ordinance also provides that non-complying

owners of fee land can be expelled from the Reservation:

All uses of property not in conformity with this

resolution shall be enjoined and in extreme cases the

violators excluded from the Yakima Indian Reserva-

tion.

(Jt. App. 56.)

The Tribe has issued a zoning map showing its regu-

latory scheme. According to its ordinance, that map is

an integral part of the Tribe’s zoning code (Jt. App. 39-

41) but, as a then member of the Tribal Council admitted

at trial, a landowner cannot discern from reading that

map how his property is zoned. Rather, one must visit

the Tribal zoning administrator to secure that informa-

tion. (Tr. 200-201. See also Tr. 454-455.)

The Tribe does not have a subdivision ordinance. In

fact, up to the time of trial the Tribe, on an ad hoc basis,

had approved every sub-division request that had come

before it. (Tr. 453, 198, 171.) The Tribe has no formal

environmental review process relevant to land use deci-

sions. (Tr. 198-199.) The Tribe allows building in flood

plains, and does not participate in the federal flood

insurance program. (Tr. 205-206, 497.)

The record shows the Tribe’s history of administering

its zoning code in the open area. Since 1972, it has

processed 883 land use applications and 75 variances.

Three hundred and seventeen of these applications were

submitted by nonmembers of the Tribe and concerned

deeded land. (Tr. 118.)

In applying its ordinance to the open area, the Tribe is

on record as thus far choosing not to exercise the power

it claims over the incorporated municipalities of Harrah,

Wapato, and Toppenish. (Tr. 163-164, 195-196. But see

Ex. 8, Tr. 28, 195-196—the Tribe’s Comprehensive Plan

shows Tribal zoning of these cities.) As a Tribal Council

member testified before the District Court:

The Tribe up to now has not opted to actively pursue

zoning and regulatory authority within city limits on

the reservation for towns like Wapato and Toppenish.

(Tr. 117, emphasis added.) (Cf. Tr. 147-148—the Tribe

asserts a similar unilateral power over certain water

sources. )

Along with its zoning ordinance, the Tribe has pursued

its land use efforts within the Reservation through re-

purchasing deeded, fee patent land and converting it back

into Tribal trust status. (Tr. 109-110. See also Tr. 317.)

The Tribe has expended about $54 million on this effort.

(Tr. 110.)

E. Wilkinson’s Property And The Decisions Below

Stanley Wilkinson is a non-Indian. He resides on the

Reservation and owns in excess of 100 acres in Yakima

County on the Reservation in the open area. (Tr. 519.)

His fee ownership derives from the federal allotment

policy of the late nineteenth century. (See generally Ex.

248.) The present dispute involves a portion of Wilkin-

son’s 100 Reservation acres. As the District Court de-

scribed it, the land central to Whiteside IJ is a

40 acre tract of fee Jand in the extreme north-east

corner of the Reservation. The land is approximately

three-quarters of a mile south of the Reservation’s

northern boundary. The parcel is situated on the

northern slope of Ahtanum Ridge, overlooking the

Yakima Municipal Airport (114 miles to the north)

and the City of Yakima (3 miles to the north).

Wilkinson’s property is bordered to the north by trust

land and to the east, south and west by fee land.

Currently, the property is vacant sagebrush land.

(W. Pet. 47a-48a (footnote omitted). See also W. Pet.

5la.)

Wilkinson’s land is separated from the vast majority

of the Reservation by Ahtanum Ridge, which rises to

over six hundred feet directly south of his land. (Jt.

App. 79.) On the geographically distinct north side of

Ahtanum Ridge, Wilkinson is one of about 484 residents,

10% of whom are Indian. (Tr. 499-500.) Wilkinson

owns an orchard. (Tr. 177). It, as well as several resi-

dences, is located near to that portion of Wilkinson’s

property he wishes to develop. (Tr. 177, 179, 231-232,

521.) There is an Indian cemetery 1.5 miles from Wil-

kinson’s land. (Tr. 342.)

As part of its regulation of all fee land in Yakima

County, the County zoned Wilkinson’s land. (W. Pet.

44a.) So did the Tribe. (Tr. 117.) These designations

conflict. The County zoned Wilkinson’s land “General

Rural,” the Tribe “Agricultural.” (W. Pet. 42a, 44a.)

In 1983, Wilkinson applied for and obtained the

County’s preliminary approval to subdivide a portion of

the forty-acre tract in question, which he desired to con-

vey ‘o Messrs. Gatliff and Keller. (W. Pet. 34a, 47a-

48a.) He wished to subdivide 32 of those 40 acres into

20 residential lots ranging in size from 1.1 to 4.5 acres.

(W. Pet. 48a.) The Tribe’s ordinance, which proscribed

lots of less than five acres on the Wilkinson property,

prohibited this subdivision absent a variance. (Tr. 117.)

The Tribe filed a timely appeal of the County’s decision

to the County Board of Commissioners, and urged that

the County did not have jurisdiction over Wilkinson’s

land. After a hearing, the Board of Commissioners as-

serted jurisdiction and approved Wilkinson’s proposed

land use. (W. Pet. 49a-50a.)

In response, the Tribe, pursuant to 28 U.S.C. §§ 1343

and 1362, commenced this litigation (“Whiteside JI’’)

in the United States District Court for the Eastern

District of Washington on October 28, 1983. (Jt. App.

26.) The Tribe joined as defendants Yakima County,

the Yakima County Commissioners (Jim Whiteside, Gra-

ham Tollefson and Charles Klarich), the Director of

Yakima County’s Planning Department (Richard Ander-

wald), Stanley Wilkinson, and Jim Gatliff and Dick

Keller, the prospective purchasers of Wilkinson’s land.

(Jt. App. 28.) Along with other relief under 42 U.S.C.

§ 1983 and Washington’s Environmental Policy Act, the

Tribe sought “a declaratory judgment declaring the

rights of the parties regarding land-use and entry regu-

lations within the exterior boundaries of the Yakima

Indian Reservation...” (Jt. App. 35.)

At the same time it was pursuing this action concern-

ing its authority over open area land, the Tribe was also

seeking a declaration of its regulatory power over all

land within the closed area of the Reservation. On Sep-

tember 12, 1983, it had filed the federal court action of

Yakima Indian Nation v. Whiteside (“Whiteside I’).

(Jt. App. 13.)® That case concerned whether the Tribe

had authority to preclude petitioner Brendale’s proposed

development of his 160 acre tract of closed area fee land.

(Jt. App. 15-16; W. Pet. 123a-124a.)

In Whiteside II, after a trial on the merits, the Dis-

trict Court rejected the Tribe’s claim to “paramount and

exclusive” (W. Pet. 35a) land use jurisdiction over Wil-

kinson’s property. It so ruled on the basis of this

Court’s decision in Montana v. United States, 450 U.S.

544 (1981). In reaching its judgment that the Tribe

was “without the authority to exercise regulatory juris-

diction over Wilkinson’s ‘Open Area’ fee land” (W. Pet.

67a), the District Court made the following crucial find-

ings of fact that remain undisturbed after the Ninth

Circuit’s review: First, it found that Yakima County’s

zoning scheme is more protective of open area agricul-

tural land than is the Tribe’s zoning ordinance.* Second,

¢ Wilkinson attempted unsuccessfully to intervene in Whiteside I.

(Jt. App. 1, District Court Docket Entries 58 & 83.)

7 A good deal of the testimony at trial was dedicated to this issue.

The conflict in the testimony was centered upon whether the

County’s ordinance, which in its “exclusive agriculture” and “gen-

it found that the Tribal land near Wilkinson’s property

was not a significant source of food for Tribal members,

and therefore that Wilkinson’s proposed land use did not

threaten a Tribal food source. Third, it found, in light

of the Tribe’s reliance on its closed area timber income,

that the Wilkinson project did not threaten the Tribe’s

economic security. (W. Pet. 53a, Findings of Fact

9-11.)

The District Court also found that the County’s regu-

lation of Wilkinson’s fee land would not hinder the Tribe

from exercising its power over trust land, and thus that

the Tribe’s political integrity was not endangered. (W.

Pet. 54a, Finding of Fact 14.) In its oral opinion the

District Court stated unequivocally :

I find that there is no evidence whatsoever presented

in this case to be the basis for a finding that the

exercise by Yakima County of its zoning jurisdiction

over the deeded land in the Open Area would inter-

fere with the political integrity, economic security, or

health or welfare of the Tribe.

(W. Pet. 99a, emphasis added.)

eral agriculture” zones require respectively 40 and 20 acre lot sizes,

was more protective of agriculture than the Tribe’s single agricul-

tural zone classification mandating a minimum lot size of five acres.

(W. Pet. 42a, 44a-46a, 53a; Tr. 51, 54, 467, 473-474, 489.) Although

in this particular instance the Tribe’s five-acre requirement for

Wilkinson’s property initially appeared more restrictive than did the

County’s “General Rural” designation reqiuring only one acre lots,

the evidence indicated the contrary. The testimony of Tribal Coun-

cil members clarified that the Tribal zoning scheme created no bar

to the subdivision of all Reservation agricultural land into five acre

plots, and that the Tribe had even granted variances for plots of

less than five acres. (Tr. 171, 210.) Also, the Tribe’s expert testified

on direct examination that the Tribe’s five acre agricultural lot

size did not appear to be a good size to protect agriculture. (Tr. 54.)

Indeed, he also opined that the only thing preventing wholesale

subdivision of all Reservation land into agriculturally inviable five

acre plots was State law. (Tr. 72-74.) The Court apparently credited

this testimony, and the testimony of the County’s land use expert

(Tr. 460-490), in reaching its finding of fact on this issue.

The record upon which these findings were based

reflects an important, recurring theme of the Tribe’s

presentation. During the trial of Whiteside II, the Tribe’s

witnesses, in asserting the need for exclusive Tribal zon-

ing authority, returned repeatedly to the perceived neces-

sity of reversing the effects of the federal allotment

policy. Thus, for example, Tribal Council member

Washines spoke of the importance of the Tribe’s commit-

ment to the repurchase of fee patent land. (Tr. 109-

110.) Elmer Schuster, a Tribal member owning land

contiguous to Wilkinson’s, testified as to the traditional

value of land within the Reservation by stating his fam-

ily’s long-standing opposition to the allotment process.

(Tr. 301.) Similarly, Rudy Saluskin, another Tribal

member holding an interest in land near to Wilkinson’s,

recounted and endorsed the opinion held by his father

that the allotment process was harmful to the Tribe

because it allowed non-members to establish a presence

on the Reservation. (Tr. 318. See also Tr. 109-110,

317 (Tribal land repurchase program designed to acquire

deeded land and return it to Tribal trust status).)

The District Court was very sensitive to these consid-

erations. On no less than three occasions during the

course of his oral decision the District Court noted these

concerns sympathetically:

In utilizing the Montana standards, I am not un-

moved by the desire of the Tribe and the Members

thereof to have its treaty lands returned to it, but

that does not, in my opinion, justify my finding that

such a desire constitutes a threat to the political in-

tegrity, the economic security, or the health or wel-

fare of the Tribe and its Members. (W. Pet. 96a.)

* * * *

I am unable to find that the desire, the sincere

desire of the Tribe and its Members to have the

deeded land restored to it is such as interferes with

the political integrity, the economic security, or the

health or welfare of the Tribe and its Members. Once

again, that is a matter for the Legislative Branch,

not the Judicial Branch to determine. (W. Pet. 98a.)

I suggest to the Yakima Indian Nation that despite

your sincere belief that all of the land within the

exterior boundaries should be returned in accordance

with the Treaty of 1855, that that may be some

time in coming. I think you recognize that that is a

matter for the Legislative Branch of this Govern-

ment to decide; to-wit, Congress. (W. Pet. 101a.)

(See also W. Pet. 12, n.7.)

Notwithstanding these sincere concerns, the Court felt

constrained to reach its decision in light of the control-

ling legal considerations: Congressional enactment and

implementation of the Allotment Act, and the current

pattern of land ownership on the Reservation. It stated

that the allotment policy had modified the Treaty With

The Yakima, and that this modification “is not a matter

that I have the power to rectify. That is a matter for

congressional enactment, for the Legislative Branch to

rectify if they determine that appropriate action should

be taken.” (W. Pet. 89a-90a.) Of the non-Indian home-

steading that resulted from the allotment policy, the

Court stated “[t]hat is history; that happened” (W.

Pet. 90a), and soon thereafter the Court pointed to a

map (Ex. 200, Jt. App. 79), illustrating the checker-

board pattern of fee and Tribal trust land tenure on the

Reservation, and stated that it “reflects exactly the his-

tory of the dealings by the United States’ Government

with the Indian people... .” (W. Pet. 91a.)

The District Court reached a different result in White-

side I, The Court determined that the closed area case

was factually “strikingly distinct”? from Wilkinson’s open

area matter. (W. Pet. 8la.) It held that the Tribe had

exclusive authority to regulate the use of Brendale’s

closed area fee land. (W. Pet. 108a, 159a.)

The Ninth Cireuit Court of Appeals affirmed Whiteside I

but reversed Whiteside IJ. As to Wilkinson’s case, that

Court conceived the relevant analysis to consist of a two-

step process. First, relying on Montana v. United States,

450 U.S. 544 (1981), it assessed whether the Tribe pos-

sessed any authority to zone non-Indian fee land within

the Reservation’s borders. (W. Pet. 16a-24a.) Much as

the Ninth Circuit Court of Appeals erroneously ap-

proached the Crow Tribe’s authority in United States v.

Montana, 604 F.2d 1162 (9th Cir. 1979), rev'd, 450

U.S. 544 (1981), the Ninth Circuit here ruled that the

Yakima Tribe derived its sovereign power over all fee

land within its Reservation from two sources: “im-

plicitly from its status as a dependent sovereign” and

“explicitly from the Treaty with the Yakimas.” (W. Pet.

17a.) Cf. Montana v. United States, 450 U.S. 544, 557

(1981). Having concluded that the Tribe did possess

such power, the Court remanded the case to allow the

District Court to balance the interests of the Tribe and

the County to determine which entity’s concurrent au-

thority over open area land would ultimately control

in this case. (W. Pet. 24a-25a, 29a-31a.)*®

In reversing Whiteside II, the Ninth Circuit did not

hold that the federal policy of “recognizing Indian sov-

ereignty and encouraging tribal self-government,” (W.

Pet. 15a) was preemptive of County regulatory authority

over deeded land on the Reservation. (W. Pet. 14a-16a.)

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

136 (1980). Further, it did not set aside the District

Court’s underlying findings of fact. See supra at 18-19.

§ This finding of concurrent jurisdiction parallels the scheme of

dual authority the Ninth Circuit formulated, and this Court struck

down, in United States v. Montana, 604 F.2d 1162, 1172 (9th Cir.

1979), rev'd, 450 U.S. 544 (1981). Cf. New Mexico v. Mescalero

Apache Tribe, 462 U.S. 324, 338 (1983) (“concurrent jurisdiction

would effectively nullify the Tribe’s authority to control hunting

and fishing on the reservation”).

Rather, under Montana v. United States, 450 U.S. 544

(1981), it held first that the Tribe possessed regulatory

power over its lands (W. Pet. 21a), and then concluded

that the extension of this authority over the deeded land

of non-members was a necessary attribute of the Tribe’s

sovereignty :

Further, a major goal of zoning is the “systematic

and coordinated utilization of land” in a particular

area. N. Williams, American Land Planning Law,

§ 1.06 (1974), cited in Comment, 53 Wash. L. Rev. at

679. Comprehensive planning enables a centralized

regulatory authority to balance the competing needs

of landowners and to distribute land uses in a de-

sirable pattern. Jd. at § 1.08, cited in Comment, 53

Wash. L. Rev. at 685. Yakima Nation has exclusive

authority to zone tribal trust land which constitutes

nearly all of the closed area and over half of the

open area. Although the fee land owned by non-

Indians is clustered primarily in one part of the

reservation, the reservation still exhibits essentially a

checkerboard pattern. If we were to deny Yakima

Nation the right to regulate land owned by non-

Indians, we would destroy their capacity to engage

in comprehensive planning, so fundamental to a zon-

ing scheme. This we are unwilling to do.

(W. Pet. 23a-24a, emphasis added.)

Following an unsuccessful motion for rehearing and

rejection of a suggestion for rehearing en banc, Wilkin-

son, Brendale, and the County timely filed their petitions

for certiorari, which this Court granted on June 20,

1988 and consolidated for review. (Jt. App. 8-10.)

SUMMARY OF ARGUMENT

The Tribe does not possess either inherent sovereign

authority or a treaty right to regulate the use of fee

land located within the Reservation but owned by non-

members of the Tribe.

It does not retain the inherent sovereign authority to

regulate non-member fee land because such power poses

the potential for an intrusion into the property rights

of non-members, who may neither participate in Tribal

government nor secure direct judicial review of Tribal

land use decisions. Further, the possession of this power

is not necessary to the Tribe’s political integrity, eco-

nomic security or health and welfare. See Montana v.

United States, 450 U.S. 544 (1981). Such a power is,

therefore, necessarily inconsistent with the Tribe’s status

as a “limited sovereign” dependent upon the United

States for its existence and powers. See Oliphant v.

Suquamish Indian Tribe, 485 U.S. 191 (1978).

The Treaty With The Yakima cannot serve as a source

of comprehensive Tribal land use authority because the

federal policy of land allotment, most clearly embodied in

the Allotment Act of 1887, 24 Stat. 388, as amended, 25

U.S.C. § 331, et seqg., and the evolving demographic char-

acteristics of the Reservation, reveal Congress’s intent to

preclude Tribal regulatory jurisdiction over non-member

fee land. See Montana v. United States, 450 U.S. 544

(1981). Cf. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

(1977) (relying on demographic data to support a find-

ing of Congressional intent to disestablish part of a

reservation).

In ruling as it has, the Ninth Circuit improperly arro-

gated to itself the political power to override the intent

of Congress’s allotment policy and substitute for it the

Court’s view of the appropriate attributes of Tribal sov-

ereignty. It did so while leaving undisturbed the District

Court’s crucial underlying factual findings. The Court,

therefore, transgressed both the controlling guidance this

Court provided in Montana v. United States, and Federal

Rule of Civil Procedure 52(a). Cf. Garcia v. San An-

tonio Metro. Transit Authority, 469 U.S. 528, 546

(1985) (precluding the unelected federal judiciary from

making political judgments about “which policies it

favors’).

If it is not to be reversed on the aforementioned

grounds, the Ninth Circuit’s decision must be reversed

because of the impact it will have on the constitutional

rights of non-members. The Ninth Circuit’s decision rec-

ognized Tribal power over non-members, who cannot vote

in Tribal elections nor obtain direct judicial review of

Tribal land use decisions. If the Tribe does possess this

authority, it must arise from a post-Allotment Act Con-

gressional delegation. Montana v. United States, 450

U.S. at 564. The Constitution prohibits Congress from

exercising such power directly. U.S. Const., Amend. V.

Neither may it delegate that power to the Tribe. Cf.

Burton v. Wilmington Parking Authority, 365 U.S. 715

(1961) (finding state action for purposes of the Four-

teenth Amendment).

ARGUMENT

I. NEITHER INHERENT TRIBAL SOVEREIGNTY

NOR THE TREATY WITH THE YAKIMA SUPPORT

THE YAKIMA INDIAN TRIBE’S CLAIM THAT IT

POSSESSES THE POWER TO REGULATE THE

USE OF FEE LAND WITHIN THE BOUNDARIES

OF ITS RESERVATION WHEN THAT LAND HAS

BEEN CONVEYED TO NON-MEMBERS OF THE

TRIBE PURSUANT TO THE FEDERAL POLICY

OF LAND ALLOTMENT.

A. The Yakima Tribe’s Dependent Status Is Necessarily

Inconsistent With Retention Of An Inherent Power

To Control The Use Of Property Owned In Fee By

Non-Members Of The Tribe.

1. Tribal sovereignty entails only what is necessary

for the Tribe to govern its members.

Indian tribes do not possess the status of full sover-

eigns. See F. Cohen, Handbook of Federal Indian Law

(1942) at 122.

In Worcester v. Georgia, 6 Pet. (31 U.S.) 515, 561

(1832), Justice Marshall treated the Cherokee Tribe as a

distinct nation in which the laws of the State of Georgia

could have “no force.” This Court has, however, “long

ago departed from the ‘conceptual clarity of Mr. Chief

Justice Marshall’s view in Worcester.’” New Mezico v.

Mescalero Apache Tribe, 462 U.S. 824, 381 (1983),

quoting, Mescalero Apache Tribe v. Jones, 411 U.S. 145,

148 (1973). See also Williams v. Lee, 358 U.S. 217, 219

(1959).

Indeed, despite Chief Justice Marshall’s sweeping pro-

nouncement in Worcester, this Court has recognized con-

sistently from “the first Indian case to reach this Court,”

that since their incorporation into these United States

“the Indian tribes have lost any ‘right of governing every

person within their limits except themselves.’ Montana

v. United States, 450 U.S. 544, 565 (1981), quoting,

Fletcher v. Peck, 6 Cranch (10 U.S.) 87, 147 (1810)

(Johnson, J., concurring). See also United States v.

Wheeler, 435 U.S. 318, 323 (1978) (the Tribes’s “incor-

poration within the territory of the United States, and

their acceptance of its protection, necessarily divested

them of some aspects of the sovereignty which they had

previously exercised.”) (Footnote omitted. )

Thus, the “sovereignty that the Indian tribes retain is

of a unique and limited character.” United States v.

Wheeler, 435 U.S. 313, 323 (1978). Indian tribes do not

retain those otherwise traditional attributes of sover-

eignty that have been “withdrawn by treaty or statute,

or by implication as a necessary result of their dependent

status.” United States v. Wheeler, 435 U.S. at 323.

Indians are within the geographical limits of the

United States. The soil and people within these limits

are under the political control of the Government of

the United States, or of the States of the Union.

There exists in the broad domain of sovereignty but

these two.

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 211

(1978), quoting, United States v. Kagama, 118 U.S. 375,

379 (1886).

The implicit limits of Indian sovereignty take shape at

the border “between an Indian tribe and nonmembers of

the tribe.” United States v. Wheeler, 435 U.S. at 326. It

is at this point that the exercise of tribal authority

creates the potential for subversion of what this Court

has recognized as the federal government’s “great solici-

tude that its citizens be protected by the United States

from unwarranted intrusions on their personal liberty.”

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210

(1978).

Judicial vigilance in recognizing the limits of tribal

authority over non-members is necessary. The pre-

existing, sovereign authority that Congress has not taken

from the tribes by treaty or statute is not subject to the

constraints of either the Fourteenth Amendment or the

Bill of Rights. See Talton v. Mayes, 163 U.S. 376 (1896).

Tribes maintain their civil immunity from suit. See

Santa Clara Pueblo v. Martinez, 486 U.S. 49 (1978).

Those the Tribe regulates possess only a statutory entitle-

ment to certain fundamental rights, and, with the excep-

tion of the remedy of habeas corpus, cannot judicially en-

force those rights except in Tribal court. Jd.; 25 U.S.C.

§§ 1301-03 (1982). Most importantly, those non-members

subject to Tribal power are denied the fundamental demo-

cratic safeguard of electoral redress, for they have no

voice in selecting those exercising control over their af-

fairs. It necessarily follows that

The tribes’ authority to enact legislation affecting

nonmembers is therefore of a different character than

their broad power to control internal tribal affairs.

This difference is consistent with the fundamental

principle that “in this Nation each sovereign governs

only with the consent of the governed.” Nevada v.

Hall, 440 U.S. 410, 426. Since nonmembers are ex-

cluded from participation in tribal government, the

powers that may be exercised over them are appropri-

ately limited.

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 172-73

(1982) (Stevens, J., dissenting).

It was this backdrop that informed this Court’s analy-

sis in Montana v. United States, 450 U.S. 544 (1981).

Cf. McClanahan v. Arizona Tax Commission, 411 U.S.

164, 172 (1973) (identifying concepts of Indian sover-

eignty as the backdrop to determining whether federal! in-

terests preempt state law).

In Montana v. United States, this Court rejected the

Crow Tribe’s contention that it retained the inherent

sovereign authority to regulate hunting and fishing by

non-members on their fee lands located within the Crow

Reservation. 450 U.S. at 563-564. The private fee lands

in question constituted 28% of the reservation. Id. at

548. In explaining its conclusion, the Court identified

several examples of the circumscribed self-governing au-

thority that Indian tribes retain:

Thus, in addition to the power to punish tribal

offenders, the Indian tribes retain their inherent

power to determine tribal membership, to regulate

domestic relations among members, and to prescribe

rules of inheritance for members. But exercise of

tribal power beyond what is necessary to protect

tribal self-government or to control internal rela-

tions is inconsistent with the dependent status of the

tribes, and so cannot survive without express con-

gressional delegation.

Montana v. United States, 450 U.S. at 564.

In this Court’s view, tribal regulation of non-member

hunting and fishing on fee-owned lands within the reser-

vation simply bore “no clear relationship to tribal self-

government or internal relations.” Jd. (footnote

omitted). The Court supported this result by reference

to the undisturbed factual findings of the District Court

that “the State of Montana has traditionally exercised

‘near exclusive’ jurisdiction over hunting and fishing on

fee lands within the reservation, and that the parties to

this case had accommodeted themselves to the state regu-

lation.” Id. at 564, n.13. This Court also relied on the

Tribe’s failure to show that non-Indian hunting and fish-

ing on the fee land threatened “the subsistence or wel-

fare of the Tribe” or that the State had either abdicated

or abused its responsibility for protecting and managing

wildlife. Jd. at 566 & 566 n.16.

In rendering its opinion, the Montana Court provided

guidelines to be employed in assessing whether a given

exercise of tribal authority over non-members should be

upheld. The guideline both the Ninth Circuit and the

District Court relied upon in resolving this case provides:

A tribe may also retain inherent power to exercise

civil authority over the conduct of non-Indians on fee

lands within its reservation when that conduct

threatens or has some direct effect on the political

integrity, the economic security, or the health or

welfare of the tribe.

Id. at 566.

Wilkinson’s case turns in part on the foregoing prin-

ciples.

2. Tribal authority over the fee land of non-members

constitutes an impermissible intrusion into those

non-members’ civil rights.

Tribal authority over Wilkinson’s fee land undoubtedly

creates the potential for an inappropriate intrusion into

individual rights. Cf. Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191, 210 (1978) (precluding tribal crim-

inal jurisdiction over non-members). It is clear that zon-

ing is a difficult and politically sensitive matter with

serious implications. See, e.g., First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles,

California, 482 U.S. , 107 S. Ct. 2378 (1987) (zon-

ing can effect a constitutionally cognizable taking).

Thus, it is imperative that those holding the power to

make land use decisions be democratically accountable to

the people subject to their authority. This Court has long

recognized the significant role the political process plays

in validating land use controls. See Village of Euclid v.

Ambler Realty, 272 U.S. 365, 389 & 393 (1926). Cf.

Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“No right

is more precious in a free country than that of having a

choice in the election of those who make the laws under

which, as good citizens, they must live.”’)

The Ninth Circuit’s decision inappropriately creates

the potential for significant in-roads into this constitu-

tionally protected interest. The Ninth Circuit’s ruling, in

deference to Montana v. United States, implicitly ac-

knowledges Wilkinson’s right to hunt and fish on his land,

but simultaneously creates the possibility that he may be

able to use his property for very little else. Cf. Tr. 75,

264 (indicating that the land Wilkinson sought to sub-

divide is not well-suited to agriculture). See also Brief

of the State of Arizona, et al. in Support of Petitions for

a Writ of Certiorari at 9. More ver, the Tribe threatens

landowners such as Wilkinson with expulsion from the

Reservation—and eviction from their property—if the

Tribe views a given land use as “extreme” non-conform-

ance with its code. (Jt. App. 56.)

The Ninth Circuit upheld this Tribal authority under

a regime in which Wilkinson is unable either to call the

Tribe to account through the electoral process or secure

direct judicial review of Tribal land use decisions. (Tr.

169, 158-159; Jt. App. 54; Br. Tr. 184; supra at 12, 14-

15.) The Ninth Circuit has thus imposed on Wilkinson a

second-class citizenship despite his residence within the

borders of these United States.

This is the very type of intrusion into the constitu-

tional rights of an American citizen residing within this

country that Oliphant and Montane stress should not be

countenanced.

3. Regulatory authority over non-member fee land

is not necessary to the Tribe's political integrity,

economic security or health and welfare.

The District Court characterized the record in White-

side II as providing “no evidence whatsoever” supporting

the contention that curtailing Tribal authority in the

open area would in any way threaten the Tribe’s eco-

nomic security, political integrity or health and welfare.

(W. Pet. 99a.) It thus determined that the Tribe did not

possess such authority. (W. Pet. 78a.) This conclusion

comports exactly with this Court’s view in Montana v.

United States that absent the need for tribal regulation

of non-members, no such Tribal power exists. Montana v.

United States, 450 U.S. at 566.

Essential to this Court’s holding in Montana v. United

States was that the Crow Tribe had not shown regula-

tion of non-members to be critical to the welfare of the

tribe. The tribe maintained its security without that as-

serted power: the reservation remained “livable,” the

non-member hunting and fishing the tribe sought to reg-

ulate did not imperil the tribe’s subsistence, and the State

had in no fashion “abdicated or abused” its regulatory

responsibility. See Montana v. United States, 450 U.S.

at 566 & ns. 15 & 16. Cf. Winters v. United States, 207

U.S. 564 (1908) (recognizing a tribe’s retained rights to

enough river water to make its reservation livable) ;

Knight v. Shoshone and Arapahoe Indian Tribes, 670

F.2d 900, 903 (10th Cir. 1982) (recognizing tribal land

use authority over the fee land of non-members in the

“absence of any [state] land use control over lands

within the Reservation’) .

The facts of Whiteside II show that these criteria fore-

close the Tribe’s claim to authority over the use of Wilk-

inson’s fee land. The Tribe earns 90% of its income

from timber operations in the closed area. To the extent

either the Tribe or its members derive income from ag-

riculture in the open area, the District Court determined

that the County’s code was more protective of that in-

come source than the Tribe’s ordinance. (Tr. 122-123;

W. Pet. 53a.)

Similarly, the record reflects that the Yakimas are not

dependent on a food source that is endangered by County

regulation in Wilkinson’s case. (W. Pet. 53a.) Cf. Mon-

tana v. United States, 450 U.S. at 566 (relying on the

Crow Tribe’s lack of dependence on the wildlife resources

the Tribe sought to regulate).

Moreover, rather than abdicating its responsibility, the

County has exercised zoning jurisdiction over the open

area for the last thirty-five years, a period substantially

coextensive with the time during which Yakima County

has exercised any land use regulation. (W. Pet. 85a,

43a.) (Indeed, prior to this litigation the Tribe has on at

least one occasion requested the County approve the use

of some of the Tribe’s Reservation land. (Tr. 455.) )

As the facts described indicate, the Tribe’s security is

not imperiled by the activity it seeks to regulate, and the

County of Yakima is actively fulfilling its responsibility

to exercise its regulatory power effectively and helpfully.

In disregarding these facts the Ninth Circuit has recast

the concept of Indian sovereignty in derogation of this

Court’s decisions, and should be reversed on the basis of

Montana v. United States.

B. The Federal Policy Of Land Allotment Has Divested

The Yakima Tribe Of Any Treaty Right To Regulate

The Use Of Non-Member Fee Land Within Its

Reservation.

If history had stood still since 1859, the Tribe’s for-

mer treaty right to exclude non-members from their Res-

ervation might have served to bar non-Indian settlement

on the Reservation. See W. Pet. 178a. But see supra at

6, n. 2 (discussing the Treaty’s provision for the fed-

eral sale of abandoned allotments). Similarly, if non-

members had settled on the Reservation without Con-

gressional authorization, that former Treaty right might

now serve as authority for Tribal regulation of non-

members’ use of fee land. History, however, has not

stood still. Congressional action, and the irresistible his-

torical forces that accompanied it, necessarily preclude

the Treaty from having this effect today.

This Court has dealt previously with the modern im-

plications of a treaty provision stating, as does Article

II of the Treaty With The Yakima, that a reservation

was to be “set apart, and, so far as necessary, surveyed

and marked out, for the exclusive use and benefit” of

the Tribe, and that no white man could reside on the res-

ervation absent Tribal and federal approval. Compare

Article II of the Treaty of Medicine Creek, 10 Stat. 1132

(1855), discussed in Puyallup Tribe, Inc. v. Department

Of Game Of The State Of Washington, 433 U.S. 165,

174 (1977), with, Article II of the Treaty With The

Yakima, W. Pet. 178a. This Court has stressed that the

implications of such a provision cannot be divorced from

historical fact. Puyallup Tribe, Ine. v. Department Of

Game Of The State of Washington, 433 U.S. at 174.

Rather, “treaty rights with respect to reservation lands

must be read in light of the subsequent alienation of

those lands.” Montana v. United States, 450 U.S. at 561.

Abstract reliance on the treaty language of “exclusive

use and benefit” can provide “no support” for broad

jurisdictional assertions. Jd.

The history relevant to the interpretation and applica-

tion of the Treaty With The Yakima is embodied in the

General Allotment Act of 1887, 24 Stat. 388, as amended,

25 U.S.C. § 331 et seg. (“Allotment Act”) (W. Pet. 194a-

214a), and the evolving demographic characteristics of

the Reser vation.

1. The Allotment Act divested the Tribe of power

over non-member owners of fee land.

It was through implementation of the Allotment Act

that the fee land central to this litigation was removed

from Tribal trust status and eventually passed into non-

Indian ownership. See generally, Ex. 248. As discussed

below, this Court has clarified beyond all question that

Congress passed the Allotment Act intending to divest

the tribes of power over the non-member fee holders of

allotted land.

The federal allotment policy had as its purpose the

assimilation of Indians into the fabric of American so-

ciety through the “ ‘gradual extinction of Indian reser-

vations and Indian titles.’” Montana v. United States,

450 U.S. at 559, n.9, quoting, Draper v. United States,

164 U.S. 240, 246 (1896). When Congress invited non-

Indians to settle on reservations pursuant to this policy,

it clearly intended that those non-Indians would not do

so at the expense of subjecting their civil liberties to the

authority of an absolute, alien sovereign:

There is simply no suggestion in the legislative

history that Congress intended that the non-Indians

who would settle upon alienated allotted lands would

be subject to tribal regulatory authority. Indeed,

throughout the congressional debates, allotment of

Indian land was consistently equated with the dissolu-

tion of tribal affairs and jurisdiction. . . . /t defies

common sense to suppose that Congress would intend

that non-Indians purchasing allotted lands would be-

come subject to tribal jurisdiction when an avowed

purpose of the allotment policy was the ultimate

destruction of tribal government. And it is hardly

likely that Congress could have imagined that the

purpose of peaceful assimilation could be advanced if

feeholders could be excluded from fishing or hunting

on their acquired property.

The policy of allotment and sale of surplus reserva-

tion land was, of course, repudiated in 1934 by the

Indian Reorganization Act, 48 Stat. 984, at 25 U.S.C.

$ 461 et seq. But what is relevant in this case is the

effect of the land alienation occasioned by that policy

on Indian Treaty rights tied to Indian use and occu-

pation of reservation land.

450 U.S. at 559, n.9 (emphasis added).

Although federal policy has fluctuated, and allotments

are no longer made, the Allotment Act remains unre-

pealed and the legal consequences flowing from that Act

for fee holders are of controlling significance. See, ¢.g.,

Montana v. United States, 450 U.S. at 557-561.° Those

® This comports with the Court’s repeatedly emphasized observa-

tion that the character and source of land tenure should have en-

during implications for the exercise of tribal and state regulatory

authority. See, e.g., New Mexico v. Mescalero Apache Tribe, 462

U.S. 324, 330-331 (1983) (distinguishing Montana v. United States,

on the basis that Montana v. United States “concerned lands located

within the reservation but not owned by the Tribe or its members”).

consequences are that non-member owners of fee land

within a reservation are, pursuant to Congressional in-

tent, not subject to tribal land use regulation. See Mon-

tana v. United States, 450 U.S. at 558-561." Once im-

plemented, the allotment policy intentionally generated

federally-based expectations of freedom from tribal au-

thority that cannot be judicially extinguished. Jd."

10 Even one of the recent Congressional enactments that the

Tribe relied on below confirms the continuing importance of the

distinction between fee and trust land on a reservation. See, e.g.,

25 U.S.C. § 450 et seg. (1982 and Supp. III 1985), which, in the

Ninth Circuit’s words in this case, “authorizes the Secretary of the

Interior, upon a tribe’s request, to enter into a contract with the

tribe, to reallocate management of land use programs involving

trust land, including zoning, from the federal government to the

tribe.” (W. Pet. 15a, emphasis added.)

11The Yakima Land Purchase Act, c. 423, 69 Stat. 392, as

amended, 25 U.S.C. § 608(a)(1), and the Tribe’s expenditure, with

federal approval, of $54 million to reacquire fee land, provide a

specific illustration that Congress has not attempted to repudiate

the implications for individuals of land ownership arising from the

allotment process. The Act provides for the Secretary of the

Interior to

purchase for the Yakima Tribes, with any funds of such tribes,

and to otherwise acquire by gift, exchange, or relinquishment,

any lands or interest in lands or improvements thereon within

the Yakima Indian Reservation or within the area ceded to the

United States by the treaty of June 9, 1855

In this manner, Congress showed its intent that Tribal control

over fee land should be accomplished by the land’s repurchase and

resumption of trust status. See Letter, dated May 3, 1955, of F.G.

Aandahl, Assistant Secretary of the Interior, to James E. Murray,

Chairman, Committee on Indian and Insular Affairs, United States

Senate (land repurchase would lead to “the eventual assumption

by these Indian people of the management of their own affairs’),

written in support of S. 1603, reprinted in S. Rpt. No. 847, 84th

Cong., Ist Sess. See also Tr. 110 (Tribal Council Member Washines

discussing the Tribe’s expenditure of $54 million to reacquire fee

land and return it to trust status). Cf. Tr. 317 (Tribal member

Saluskin discussing the importance of a provision for the Tribe’s

2. The Reservation’s demographic characteristics

illustrate Congress’s intent to displace tribal

authority over allotted, non-member fee land.

Congress’s intent to free non-member fee holders from

tribal jurisdiction over land use is further evidenced by

the demographic characteristics of the open area. This

Court has recognized in the analogous context of Con-

gressional diminishment of reservations that the “subse-

quent demographic history of opened lands” may serve

as a “clue”, albeit an imperfect one, “to what Congress

expected would happen once land on a particular reser-

vation was opened to non-Indian settlers.” Solem v. Bart-

lett, 465 U.S. 463, 471-472 & n.13 (1984) (footnote

omitted). See also Id., at 471 (“On a more pragmatic

level, we have recognized that who actually moved onto

opened reservation lands is also relevant to deciding

whether a surplus land Act diminished a reservation.

Where non-Indian settlers flooded into the open portion

of a reservation and the area has long since lost its In-

dian character, we have acknowledged that de facto, if

not de jure, diminishment may have occurred”) ; Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584, 603-605 (1977) ;

DeCoteau v. District County Court For The Tenth Ju-

dicial District, 420 U.S. 425, 442-443 (1975).

In this case, the District Court explicitly recognized

the importance of these considerations when he stated,

referring to a BIA map of the Reservation showing the

pattern of land ownership, that

Exhibit No. 200 reflects exactly the history of the

dealings by the United States’ Government with the

Indian People, the result being the factual situation

with which I must deal; to-wit, a substantial portion

of the Open Area of the Yakima Indian Nation being

held in fee rather than being held in trust for the

reacquisition of land.) Simply put, the Tribe inappropriately seeks

to obtain through regulation a power over land Congress intended

for it to possess only through repurchase.

benefit of the peoples of the Yakima Indian Nation

as was intended in the Treaty of 1855.

(W. Pet. 91a-92a; Ex. 200, Jt. App. 79.) This observa-

tion is clearly supported by the evidence of record: al-

most one-half the acreage in the open area is held in fee

by non-members, while non-members comprise 80% of

that region’s population (W. Pet. 40a, 51a) ; non-members

farm 130,645 of the open area’s 143,000 irrigated acres;

(Tr. 422 & 418); there are three incorporated munici-

palities with a combined population of over 10,000 in the

open area (W. Pet. 51a); and, the County has exercised

land use jurisdiction over this area for thirty-five years

(W. Pet. 85a.). The record shows that these statistics

are the direct result of the allotment policy. (Ex. 248.)

In Rosebud Sioux Tribe v. Kneip, analogous facts

proved adequate to confirm Congress’s intent to dises-

tablish a portion of an Indian reservation: “The long-

standing assumption of jurisdiction by the State over

an area that is over 90% non-Indian, both in population

and in land use, not only demonstrates the parties’ under-

standing of the meaning of the Act, but has created

justifiable expectations which should not be upset by so

strained a reading of the Acts of Congress as petitioner

urges.” 430 U.S. at 604-605 (footnote omitted). See

also Solem v. Bartlett, 465 U.S. at 479-480. The demo-

graphics of the open area, read in light of the unmis-

takable intent of the Allotment Act, mandate the conclu-

sion that Wilkinson’s fee land is not subject to the Tribe’s

land use regulation.

3. The Ninth Circuit’s decision ignores the allot-

ment policy and turns on inappropriately politi-

cal considerations.

At the core of the Ninth Circuit’s decision is a trou-

bling willingness to engage in a revisionist exercise. The

Ninth Circuit ignored the factual predicates of the Dis-

trict Court’s analysis, Congress’s intent in its allotment

policy, and this Court’s reading of that Congressional

intent, in reaching its determination that comprehensive

zoning authority was a necessary attribute of the Tribe’s

authority. The Ninth Circuit’s decision reflects its as-

sessment that history and Congress’s intent should yield

to the Ninth Circuit’s judgment that checkerboard Tribe-

County zoning jurisdiction is inappropriate. (W. Pet.

23a-24a.) That, however, is a political question. Cf.

Luther v. Borden, 7 How. (48 U.S.) 1 (1849) (the Con-

stitutional guaranty, in Art. IV, §4, of a republican

form of government poses a political question).

The Ninth Circuit’s approach is reminiscent of the “un-

sound” and “unworkable” judicial assessments of State

sovereignty jettisoned in Garcia v. San Antonio Metro.

Transit Authority, 469 U.S. 528, 546 (1985). To para-

phrase Garcia and analogize it to this case, Montana

v. United States is not properly viewed as an invitation

to “an unelected federal judiciary to make decisions about

which . . . policies it favors and which ones it dislikes.”

Garcia v. San Antonio Metro. Transit Authority, 469 U.S.

at 546. If uncorrected, the Ninth Circuit’s approach will

transform Montana v. United States into a vehicle for

the expression of overtly political judgments that are

properly within the domain of Congress.

The record below shows that checkerboard jurisdiction

over land use is commonplace. (Tr. 469-471; Ex. 246,

Tr. 470, 471. Cf. Br. Tr. 491—the County regulates the

fee land contained within the boundaries of federal en-

claves, such as the national forest, within Yakima

County.) Further, the District Court determined, con-

trary to the Tribe’s theoretical objections, that such a

scheme is oftentimes necessitated by modern conditions

and is neither impossible nor difficult to administer. (W.

Pet. 97a.)

The impermissibly political character of the Ninth Cir-

cuit’s decision to disregard these observations is evidenced

by this Court’s holding that the checkerboard pattern of

jurisdiction on the Yakima Reservation is legally unob-

jectionable. This Court has stated in regard to the very

Reservation here in question that “classifications based

on tribal status and land tenure inhere in many of the

decisions of this Court involving jurisdictional contro-

versies between tribal Indians and the States.” Washing-

ton v. Confederated Bands And Tribes Of The Yakima

Indian Nation, 439 U.S. 463, 501 (1979) .*

In essence, the Ninth Circuit embraced the Tribe’s

invitation to turn back the legacy of the allotment pol-

icy. (Tr. 301, 318.) The Ninth Circuit did what the

District Court properly refrained from doing. (W. Pet.

96a, 98a, 10la; supra at 20-21.) Such a decision is not

one for the Ninth Circuit to make. Congress has spoken.

Many of Yakima County’s citizens have accepted Con-

gress’s invitation. As this Court has stated, “[s]ome

might wish [Congress] had spoken differently, but we

cannot remake history.” DeCoteau v. Distriet County

Court For The Tenth Judicial District, 420 U.S. at 449.%°

12 Neither Moe v. Confederated Salish and Kootenai Tribes of the

Flathead Reservation, 425 U.S. 463 (1976), nor Seymour v. Super-

intendent of Washington State Penitentiary, 368 U.S. 351 (1962)

are to the contrary. Those cases establish that Congress did not

envision a scheme of checkerboard jurisdiction over tribal members

based solely upon the character of land tenure within a reservation.

The later case of Montana v. United States, demonstrates that

neither Moe nor Seymour speak to the question of the efficacy of a

system of checkerboard jurisdiction implicating the rights of non-

members of a tribe. Rather, Montana v. United States, requires

the approval of such a jurisdictional structure if the non-members

own reservation fee land pursuant to the federal allotment policy.

Indeed, Moe allowed the State of Montana to require a tribal mem-

ber to collect a state tax on a transaction occurring within the

reservation when the transaction was the Indian sale of cigarettes

to non-members of the Tribe. Moe v. Confederated Salish and

Kootenai Tribes of the Flathead Reservations, 425 U.S. at 481-483.

13 Cf. United States v. Sioux Nation of Indians, 448 U.S. 371, 437

(1980) (Rehnquist, J., dissenting) (“[t]hat there was tragedy,

C. The Ninth Circuit Proceeded Improperly Under

Federal Rule Of Civil Procedure 52(a) When It

Independently Redetermined Whether The Tribe

Possessed Authority Over The Use Of Non-Member

Fee Land Within The Reservation.

In reaching its conclusion in Whiteside II, the District

Court found:

9. In part due to the parcel size requirements of

the county’s “exclusive” and “general” agriculture

zones, 1.€., 40 and 20 acres respectively, the Yakima

County zoning scheme is more protective of the Open

Area’s agricultural lands than the Yakima Nation’s

“agricultural” use district which allows agricultural

land to be divided into 5-acre lots.

10. The trust land in the vicinity of the Wilkinson

property is not a significant source of food for mem-

bers of the Yakima Nation. The proposed Wilkinson

development does not threaten a food source of mem-

bers of the Yakima Nation.

11. Similarly, the Wilkinson project does not

threaten the economic security of the Yakima Nation.

The plaintiff has not demonstrated how Yakima

County’s regulation of the land use of Wilkinson’s

“Open Area” property in any way places its economic

security in jeopardy.

(W. Pet. 53a.)

The Ninth Circuit acknowledged that the District

Court’s findings were subject only to the deferential scru-

tiny authorized by Fed. R. Civ. P. 52(a) (W. Pet. 25a),

which provides that such findings “shall not bet set aside

unless clearly erroneous.” Fed. R. Civ. P. 52(a). It then

deception, barbarity, and virtually every other vice known to man

in the 300-year history of the expansion of the original 13 Colonies

into a Nation which now embraces more than three million square

miles and 50 States cannot be denied. But in a Court opinion, as a

historical and not a legal matter, both settler and Indian are entitled

to the benefit of the Biblical adjuration: ‘Judge not, that ye be not

judged’ ”) ’

reached its decision that the Tribe possessed regulatory

authority over Wilkinson’s land while leaving undisturbed

these findings of fact.

This Court has been clear that Rule 52(a) “means

what is says.” Bose Corporation v. Consumers Union Of

United States, Inc., 466 U.S. 485, 498 (1984).

The rule did not deter the Ninth Circuit. Despite the

District Court’s findings, the Ninth Circuit simply “would

have decided the case differently.” Anderson v. City of

Bessemer City, North Carolina, 470 U.S. 564, 573 (1985).

In disregard of the facts, it believed, on the basis of an

overtly political assessment of the nature of “sover-

eignty,” that the Tribe was threatened if it did not have

power over land neither it nor its members owned. By

so ruling the Ninth Circuit violated the command of

Rule 52(a), and therefore should be reversed.

II. THE NINTH CIRCUIT’S DECISION SHOULD BE

XEVERSED BECAUSE IT SANCTIONS A DELEGA-

TION OF UNCONSTITUTIONAL AUTHORITY

OVER NON-MEMBERS OF THE TRIBE.

Given the foregoing, the Ninth Circuit’s decision can

only be affirmed on the hasis of a Congressional delega-

tion to the Tribe of authority over the constitutionally

protected interests of non-members, when that Tribal au-

thority is immune from both legislative redress and di-

rect judicial review.

This Court has twice noted, but has thus far not ad-

dressed squarely, the question of whether the federal gov-

ernment may, in light of the constraints of the Fifth

Amendment to the United States Constitution, delegate

to an Indian Tribe power over American citizens that

Congress would be constitutionally prohibited from as-

suming directly. See United States v. Wheeler, 435 U.S.

313, 328 n.28 (1978) ; United States v. Mazurie, 419 U.S.

544, 558 n.12 (1975) (“[w]hether and to what extent

the Fifth Amendment would be available to correct ar-

bitrary or discriminatory tribal exercise of its delegated

federal authority must therefore await decision in a case

in which the issue is squarely presented and appropriately

briefed”). If this Court determines that the Federal

Government’s post-Allotment Act “policy of encouraging

tribal self-government”, Jowa Mutual Insurance Com-

pany v. La Plante, 480 U.S. 9, 107 S. Ct. 971, 975 (1987),

has reposited in the Tribe the power it seeks here, it has

made resolution of that question inevitable.

The authority the Tribe claims in regard to Wilkin-

son’s property is one that concerns him “upon individual

grounds,” Bi-Metallic Company v. Colorado, 239 U.S. 441,

446 (1915), and touches a protectable property interest.

See First English Evangelical Lutheran Church of Glen-

dale v. County of Los Angeles, California, 482 U.S. ——,

107 S. Ct. 2378 (1987). Thus, Wilkinson’s due process

rights are implicated. See, e.g., Londoner v. Denver,

210 U.S. 373 (1908). Of even more fundamental im-

portance, Wilkinson has a constitutional entitlement to

participate in selecting those exercising governmental

power over his property. See Wesberry v. Sanders, 376

U.S. 1, 17 (1964). Cf. Village of Euclid v. Ambler

Realty, 272 U.S. 365, 389, 393 (1926) (the electoral

process legitimizes governmental land use controls).

Congress may not exercise its authority to the detri-

ment of either of these Constitutional safeguards. U.S.

Const., Amend. V. Nor may it elude these constraints

through delegation. Cf. Burton v. Wilmington Parking

Authority, 365 U.S. 715 (1961) (finding state action for

Fourteenth Amendment purposes).

Under the Ninth Circuit’s decision, however, Congress

has necessarily transgressed these prohibitions.

First, Wilkinson’s constitutional rights are imperiled.

Wilkinson’s property is subject to comprehensive Tribal

regulation yet he cannot participate in Tribal elections.

Thus, he is denied the fundamental right to participate in

the government whose laws he must obey. Wesberry v.

Sanders, 376 U.S. at 17. Further, the Tribe precludes

all direct judicial review of its land use decisions, (Br.

Tr. 184), and expressly asserts immunity from suit. (Jt.

App. 54). Therefore, he cannot secure adequate judicial

review of Tribal zoning determinations. See Santa Clara

Pueblo v. Martinez, 436 U.S. 49 (1978); Trans-Canada

Enterprises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d

474, 476 (9th Cir. 1980) ; R.J. Williams Company v. Fort

Belknap Housing Authority, 719 F.2d 979 (9th Cir.

1983), cert. denied, 472 U.S. 1016 (1985). But see Dry

Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623

F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118

(1981) (providing a federal court remedy for a non-

Indian denied access to tribal court).

Second, this situation could only come to pass pursuant

to Congress’s will. All aspects of tribal sovereignty are

“subject to plenary federal control and definition.” Three

Affiliated Tribes Of The Fort Berthold Reservation v.

Wold Engineering, 476 U.S. 877, 106 S. Ct. 2305, 2313

(1986). See also National Farmers Union Insurance

Company v. Crow Tribe, 471 U.S. 845, 857 (1985) (the

existence of tribal court jurisdiction presents a federal

question within the scope of 28 U.S.C. § 1331) ; Montana

v. United States, 450 U.S. at 564 (tribes possess power

inconsistent with their dependent status only with “ex-

press congressional delegation’’) .

The Fifth Amendment necessarily precludes such a

delegation; for this reason the Ninth Circuit’s decision

cannot be sustained."

14 Reversal of the Ninth Circuit’s decision on the basis of Oliphant

v. Suquamish Indian Tribe, 435 U.S. 191 (1978) and Montana v.

United States, 450 U.S. 544 (1981) would simultaneously clarify

this area of the law and avoid resolving this difficult and unneces-

sary constitutional question. Cf. Lyng v. Northwest Indian Ceme-

tery Protective Association, 108 S. Ct. 1319, 1323-1324 (1988)

(advising resolution of a controversy without needlessly confronting

CONCLUSION

The judgment of the Court of Appeals should be re-

versed, and the case remanded with directions to enter an

order that the County of Yakima possesses exclusive au-

thority to regulate the use of non-member fee land within

the boundary of the Reservation. Alternatively, Wilkin-

son urges that insofar as the Court of Appeals reversed

the District Court’s judgment in Whiteside IJ, the Ninth

Circuit’s decision should be reversed, and the case re-

manded with directions to enter an order declaring that

the County of Yakima possesses exclusive authority to

regulate the use of non-member fee land within the open

area of the Reservation.

Respectfully submitted,

DALE B. RAMERMAN *

RONALD T. SCHAPS

MICHAEL MIRANDE

BOoGLE & GATES

2300 Bank of California Ctr.

Seattle, WA 98164

(206) 682-5151

Counsel for Petitioner

Stanley Wilkinson

* Counsel of Record

September 1, 1988

a Constitutional question), citing, inter alia, Ashwander v. TVA,

297 U.S. 288, 346-348 (1936) (Brandeis, J., concurring). That is the

course this Court should pursue.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.