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

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Nos. 87-1622, 87-1697, and 87-171

OCTOBER TERM, 1988

PHILIP BRENDALE,

Petitioner,

V.

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, e/ al.,

respondents.

STANLEY WILKINSON,

. Petitioner,

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Respondent.

COUNTY OF YAKIMA, ef ai..,

7 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

REPLY 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

RNID CORSA AR A AR I OL IIE TEE EELS LES

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

TABLE OF CONTENTS

i: ITI ss ichcstessdsiecennestbigapsapsidesihies cenihapnaniedetiigies

II. CONGRESS HAS DIVESTED THE YAKIMA

ill.

INDIAN NATION OF THE PRE-TREATY

TERRITORIAL AUTHORITY IT CLAIMS

OVER NONMEMBERS OF THE TRIBE AND

i EE a A ED

A. The Tribe Does Not Retain Absolute Civil

Power Over Nonmembers Within Reserva-

SRS SIE IN ey A PO

B. Montana v. United States Correctly Estab-

lishes That Congress Generally Divested

The Tribe Of Civil Land Use Regulatory

Jurisdiction Over Nonmembers On Fee

Lands Within Reservation Borders .................

1. Montana Is Consistent With Prior Au-

EO NET RRL TAREE Te A na

2. Montana Is Consistent With Congress’s

Post-Allotment Era Enactments ..............

a. USC. § 476 ................ i Rend As rune

Se PS we eens ae

c. Recent Statutes ..................... atetet aba teaciee

CHECKERBOARD LAND USE REGULA-

TORY AUTHORITY WITHIN THE RKESER-

VATION IS NOT A PER SE THREAT TO THE

TRIBE’S POLITICAL INTEGRITY, ECO-

NOMIC SECURITY OR HEALTH AND WEL-

i)

Co no nN eS

11

IV.

¥e

VI.

ii

TABLE OF CONTENTS—Continued

THE TRIBE’S PRECONSTITUTIONAL STA-

TUS DOES NOT INSULATE ITS ACTIONS

FROM CONSTITUTIONAL SCRUTINY

WHEN THE TRIBE EXERCISES GOVERN-

MENTAL POWER CONGRESS HAS DELE-

TN ke y

A. Talton v. Mayes Is Not Controlling ................

B. Wilkinson Is Without Electoral Or Effective

Judicial Redress For The Tribe’s Arbitrary

Exercise Of The Power Congress Has Alleg-

SE RP TR eictccctbenicpsinceitiininiiiaaieneinnie

ANY REMAND FOR A BALANCING OF

COUNTY AND TRIBAL INTERESTS IN REG-

ULATING NONMEMBER USE OF OPEN

AREA FEE LAND WOULD BE A WASTEFUL

ACT IN DISREGARD OF THE DISTRICT

COURT’S UNREFUTED FINDINGS OF

BI cibdiccestssnntsisinniassssutllcaindsiipenasidlealaduopaemenneetinetindinties

Page

16

16

17

19

20

iii

TABLE OF AUTHORITIES

Cases Page

Bates v. Clark, 95 U.S. 204 (1877) ................0.00.-..-- 6

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

appeal dismissed, 203 U.S. 599 (1906) ................. 5, 6

California Coastal Commission v. Granite Rock

Company, 480 U.S. 572, 107 S. Ct. 1419 (1987)... 10

Dry Creek Lodge, Inc. v. Arapaho and Shoshone

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

Re 18

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S.

ee 19

Fisher v. District Court, 424 U.S. 382 (1976) ......... 9

Fuentes v. Shevin, 407 U.S. 67 (1972) 2.000.000.0000. 5

Garcia v. San Antonio Metro. Transit Authority,

EET a ee 19

Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60

EEE a rel SO eo el RO ae 17, 18

Iowa Mutual Insurance Company v. LaPlante, 480

EEE ESE ee 12

Knight v. Shoshone and Arapahoe Indian Tribes,

670 F.2d 900 (10th Cir. 1982) .....................cceeeeeee 14

Little Horn State Bank v. Crow Tribal Court, 690

F. Supp. 919 (D. Mont. 1988) ............................... 18

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

Sth ORE REE a a ae a 3

Moe v. Confederated Salish and Kootenai Tribes of

the Flathead Reservation, 425 U.S. 463 (1976)... 8,15

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

Morris v. Hitchcock, 194 U.S. 384 (1904) ....000000..... 5

Nevada v. Hall, 440 U.S. 410 (1979) -0000 0. 18

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

ea a EIR Oe ec 3

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

a sienna 4,5, 19

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) .......... 17

Rice v. Rehner, 463 U.S. 713 (1983) .. pares A 8

Rosebud Sioux Tribe v. Kneip, 430 ‘US. 584

iv

TABLE OF AUTHORITIES—Continued

Page

San Francisco Arts & Athletics, Inc. v. United

States Olympic Committee, 107 S. Ct. 2971 ’

ORD nciccincdkticdedvarmcasehiaiaiaiiaintedaiebibamin citabamedetiabbitins 17

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

OD sini cia soc alee lich acacia ane a, 17

Santa Rosa Band v. Kings County, 532 F.2d 655

(9th Cir. 1975), cert. denied, 429 U.S. 1038

REAP RMD sed Me Hate OP egos RO 10, 14

Seymour v. Superintendent, 368 U.S. 351 (1962) .. 15

Solem v. Bartlett, 405 U.S. 463 (1984) —.....0000......... 7,8

State of Minnesota By Alexander v. Block, 660 F.2d

1240 (8th Cir. 1981), cert. denied, 455 U.S. 1007

CI eheiniesninieadedilisanicis ia indaesaares tiiealen dab bait dskabigediasee 13

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

United States v. Antelope, 430 U.S. 641 (1977) ...... 9

United States v. Kagama, 118 U.S. 375 (1886) ....... 9

United States v. Mazurie, 419 U.S. 544 (1975) ....... 6

United States v. Wheeler, 435 U.S. 313 (1978) .....3, 11, 16

Washington v. Confederated Bands And Tribes Of

The Yakima Indian Nation, 437 U.S. 463 (1979)... 8

Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980) _........ 8,11, 12

Wesberry v. Sanders, 376 U.S. 1 (1964) .....000........ 18

White Mountain Apache Tribe v. Bracker, 448

5 a fC RES Ear ee eee areee 3,13

Williams v. Lee, 358 U.S. 217 (1959) ..................... 9, 11, 12

Federal Constitution

Property Clause, Art. IV, § 3, cl. 2 .........-..0000 oe... 13

Supremacy Clause, Art. VI, § 2 ..............---...:-:s20000++ 13

aE eC a a A 16, 17, 19

Statutes, Administrative Regulations, & Court Rules

FE 5 REE aaer nee ena een 5 oe a 8,9

Bp Ota Oe is 0 GI ocesececcnnncccccnccosecessas fe ort NO 4

a 7

Se le rs Te IE ecrecceteiccchisnercnsntcdicirninaliccananiice 9

v

TABLE OF AUTHORITIES—Continued

Page

EERSTE toe ae Sa Se a a eR 9

8 ET Is ee Re oe 10

Fed. R. Civ. P. 52(a) ........... a eee 13, 16, 20

Other Authorities

Cohen’s Handbook of Federal Indian Law (1982

|p ARR SRS ESET ADDON CR ak og tN AN Care Recre IE 5

Op. Sol. LD. Ind. Aff. 1917-1974, Vol. I, 484 (M.

I ese eee ee ae Se et a 7

a ees ee 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

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

PHILIP BRENDALE,

Petitioner,

V.

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et a/.,

Respondents.

STANLEY WILKINSON,

Petitioner,

Vv.

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Respondent.

COUNTY OF YAKIMA, et al.,

Petitioners,

Vv.

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

REPLY BRIEF OF PETITIONER STANLEY WILKINSON

2

I. INTRODUCTION.

The responses of the Tribe and its amici to petitioner

Wilkinson’s arguments revolve around four primary

themes.

First, they assert that Congress has not divested the

Tribe of its original, pre-Treaty power to manage com-

prehensively all of the land within the Tribe’s reserva-

tion. Because Montana v. United States, 450 U.S. 544

(1981), which reflects but one instance of this Court’s

repeated recognition that Congress has modified Chief

Justice Marshall’s absolute view of tribal sovereignty,

stands as an obstacle to that position, they attack Mon-

tana as “unprecedented” and as a “momentary” “diver-

gence from recognized law’’, the authority for which the

Tribe is “unwilling to accept.” See Brief of Respondent,

Yakima Indian Nation (“RB’’) at 36, 40 & 42.

Second, they urge that under Montana the Tribe nec-

essarily possesses the power to regulate all land within

the reservation because a checkerboard scheme of civil

land use regulatory jurisdiction by definition interferes

unacceptably with the Tribe’s political integrity, economic

security and health and welfare. See, e.g., RB at 31, 43

n.23.

Third, they assert that the pre-Constitutional status of

Tribal power stands as an absolute barrier to the consti-

tutional concerns of nonmembers of the Tribe in this

case. See, e.g., RB at 47-49.

Fourth, they give short shrift to the District Court’s

findings of fact and assert that if the County of Yakima

has any land use authority over reservation fee lands,

Whiteside II should be remanded to the District Court for

the balancing the Ninth Circuit envisoned between Tribal

and County interests in exercising such power in the open

area. RB at 31-35.

None of these contentions withstands scrutiny.

3

II. CONGRESS HAS DIVESTED THE YAKIMA IN-

DIAN NATION OF THE PRE-TREATY TERRI-

TORIAL AUTHORITY IT CLAIMS OVER NON-

MEMBERS OF THE TRIBE AND THEIR PROP-

ERTY.

A. The Tribe Does Not Retain Absolute Civil Power

Over Nonmembers Within Reservation Borders.

This Court has recognized both that tribal authority

includes a “ ‘significant geographical component’ ” defined

by reservation boundaries, New Mexico v. Mescalero

Apache Tribe, 462 U.S. 324, 335 n.18 (1983), quoting,

White Mountain Apache Tribe v. Bracker, 448 U.S. 136,

151 (1980), and that in the jurisdictional context “the

reservation boundary is not absolute.” White Mountain

Apache Tribe v. Bracker, 448 U.S. at 151. The Tribe’s

assertion in this case that it retains a comprehensive

power coextensive with reservation borders over all jiand

use thus represents an unacceptable return to the ab-

solutism this Court eschewed when it “long ago departed

from the ‘conceptual clarity of Mr. Chief Justice Mar-

shall’s view in Worcester’. .. and... acknowledged cer-

tain limitations on tribal sovereignty.” New Mevico v.

Mescalero Apache Tribe, 462 U.S. at 331, quoting Mesca-

lero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973).

B. Montana v. United States Correctly Establishes

That Congress Generally Divested The Tribe Of

Civil Land Use Regulatory Jurisdiction Over Non-

members On Fee Lands Within Reservation Borders.

Wilkinson does not take issue with the principle that

the Tribe retains “those aspects of sovereignty not with-

drawn by treaty or statute or by implication as a neces-

sary result of [its] dependent status.” United States v.

Wheeler, 435 U.S. 313, 323 (1978). Compere Wilkinson

Brief (“WB”) at 27 with RB at 24 & 36-37. Applica-

tion of that principle, however, requires recognition that

the Tribe no longer possesses the full civil regulatory

power it asserts over nonmembers.

4

This Court’s explanation in Montana of the impact of

the Allotment Acts on treaty provisions setting land

apart for a tribe’s “exclusive use and benefit,” estab-

lishes unmistakably that reservation borders no longer

define a comprehensive tribal civil regulatory power over

nonmembers and their fee land: “Jt defies common sense

to suppose that Congress would intend that non-Indians

purchasing allotted lands would become subject to tribal

jurisdiction ...” Montana, 450 U.S. at 559 n.9."

Similarly contrary to the Tribe’s assertion (RB at 39),

this Court has determined that the implicit divestiture

principle of Oliphant v. Suquamish Indian Tribe, 435 U.S.

191 (1978) (which provides both that “Indian tribes

cannot exercise power inconsistent with their diminished

status as sovereigns” and that the governance of non-

members is one of those “inconsistent” powers, Montana,

450 U.S. at 565), applies in the civil context: “Tl ough

Oliphant only determined inherent tribal authority in

criminal matters, the principles on which it relied sup-

port the general proposition that the inherent sovereign

1 Congress’s allotment policy, embodied in both the General Allot-

ment Act of 1887, 25 U.S.C. § 331 et seq., and in the special Yakima

Reservation allotment enactments, is central to this case. See WB

at 5-9. Amici Colville Tribe, et al., have made the unfounded as-

sertion, contrary to the undisputed evidence the Yakima Nation

submitted below (Tr. 556, 557; Ex. 248), that the Yakima reserva-

tion was alloted solely pursuant to “special treaty provisions.”

Colville Brief at 10 n.10. The unrefuted evidence of record belies

this assertion. An historian of the Yakima Nation, a member of the

Tribe whose work the Tribe relied upon below to establish the im-

pact on the reservation of the Allotment Acts, refutes that position

(Ex. 248 at 59-60), and it should not be given credence here.

In a related matter, Amici Colville Tribe makes a similarly

unexamined argumentative assertion that “petitioners maintain

that land ownership patterns on reservations have remained static

since the effects of the Allotment Act were noticed.” Colville Brief

at 11 n.11. This could not be more inaccurate; petitioner Wilkin-

son's arguments, and his statement of the case, highlight the evolu-

tion of the reservation, including the Tribe’s post-Allotment Act

reacquisition of fee land. See, e.g., WB at 16, 36-38 & n.11.

5

powers of an Indian tribe do not extend to the activities

of nonmembers of the tribe.” Jd. (footnote omitted).

This reasoning is entirely consistent with this Court’s

recognition that “unwarranted intrusions on . . . per-

sonal liberty,” Oliphant, 435 U.S. at 210, are no less con-

stitutionally offensive because they occur in the civil

context. Cf. Fuentes v. Shevin, 407 U.S. 67 (1972).

Thus, as the Tribe recognizes, any Tribal claim to full

territorial power over nonmembers on fee land must

hurdle Montana. Cf. RB at 36, 38-43, & 44.

This Court’s reliance in Montana on the continued im-

pact of Congress’s allotment policy on tribal civil regula-

tory power over nonmembers on fee land is undoubtedly

correct.

1. Montana Is Consistent With Prior Authority.

Neither Morris v. Hitchcock, 194 U.S. 384 (1904), nor

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

dismissed, 203 U.S. 599 (1906), which the Tribe’s amici

rely upon extensively, puts into question this Court’s

reasoning in Montana.

Morris v. Hitchcock did not concern tribal power over

nonmembers on fee lands, but rather addressed tribal

taxing authority over the cattle of nonmembers that were

grazing on trust land pursuant to a business arrange-

ment between tribal members and nonmembers. 194 U.S.

at 384-385. Even staunch advocates of tribal authority

recognize that any statement in Morris relating to tribal

power over nonmembers on fee land can only be char-

acterized as dictum. See Cohen’s Handbook Of Federal

Indian Law (1982 ed.) at 256 n.114.

This Court appreciated these distinctions. It cited Mor-

ris in Montana, but solely as authority for the proposi-

tion—uncontested here—that a tribe may regulate “the

activities of nonmembers who enter consensual relation-

ships with the tribe or its members .. .” Montana, 450

U.S. at 565-566.

6

Buster v. Wright is similarly unpersuasive. In fact, in

Buster’s own language, that case affirms the “general

rule of law announced in Bates v. Clark, 95 U.S. 204,

205, 208, 24 L.Ed. 471, that all the original Indian coun-

try remains such until the Indian title to it is extin-

guished, and no longer, ‘unless by the treaty by which

the Indians parted with their title, or by some act of

Congress, a different rule was made applicable to the

case’. 135 Fed. at 952 (emphasis added.) Buster fell

within this exception. Jd. The fee land in Buster was

not land the tribe had reserved from a cession of terri-

tory and which was thereafter allotted, but rather was

land that was patented to the Creek Nation from the

United States. Jd. at 951. Thus, a “different rule was

made applicable” to this special case of the relocated

Creek Nation (one of the Five Civilized Tribes), which

pursuant to Congress’s express intent was extended a

power over the fee land of nonmembers that would other-

wise have perished with Indian title. Jd. at 952. Fur-

ther, Buster dealt with the extent of tribal power in re-

gard to a consensual business arrangement—“the privi-

lege which {the Creek Nation] offers to those who are

not citizens of its nation of trading within its borders”.

Id. at 949. Thus, it also falls within Montana’s “con-

sensual relationship” exception to the general prohibition

of tribal regulatory authority over nonmembers on fee

lands. Montana, 450 U.S. at 565. See also United States

v. Mazurie, 419 U.S. 544, 557-558 (1975).

2. Montana Is Consistent With Congress’s Post-

Allotment Era Enactments. The Tribe and its amici

make much of the datum that Congress has repudiated

the allotment policy of the nineteenth century, a point

this Court specifically acknowledged in Montana. 450

U.S. at 559 n.9. This repudiation, which manifests itself

in Congress’s decision to cease allotting reservation land

and to foster tribal self-government, is said to eliminate

the effects of the allotment process. This is simply un-

tenable. One cannot ignore history. Cf. Rosebud Sioux

aaa

7

Tribe v. Kneip, 430 U.S. 584, 615 (1977). Only if Con-

gress has legislated specifically to remove the effect of

its prior policy can the Tribe’s position stand. Congress,

however, has not so legislated.

a. 25 U.S.C. § 476. As the amici States of Arizona,

et al. show conclusively, the 1934 Indian Reorganization

Act’s statement that tribes retained “all powers vested

... by existing law”, 25 U.S.C. § 476, did not imply a

recognition that tribes possessed comprehensive civil reg-

ulatory power over nonmembers on fee lands. Rather,

this statement represented a legislative acquiescence, af-

ter extensive debate and controversy centering upon this

very question, to the proposition that tribes would con-

tinue to possess only limited authority regarding non-

members on fee lands. See Brief of Arizona, et al. at

10-16. Almost immedietely after passage of the Act, the

Executive Branch confirmed this view. Jd. at 16-20, dis-

cussing, Op. Sol. I.D. Ind. Aff. 1917-1974, Vol. I 484 at

489-491 (M. 27810) (advising that a tribe possessed the

inherent power of eminent domain only with respect to

tribal members). See also 55 I.D. 14, 50 (1934) (Inter-

ior Department opinion recognizing that nonmembers oc-

cupying fee land within a reservation are insulated from

tribal authority in regard to rights vested in them by

federal law}. This Court recognized as much in Solem v.

Bartlett, 465 U.S. 463, 468 (1984) :

The notion that reservation status of Indian lands

might not be coextensive with tribal ownership was

unfamiliar at the turn of the century. Indian lands

were judicially defined to include only those lands in

which the Indians held some form of property in-

terest: trust lands, individual allotments, and, to a

more limited degree, opened lands that had not vet

been claimed by non-Indians. ... Only in 1948 did

Congress uncouple reservation status from Indian

ownership, and statutorily define Indian country to

include lands held in fee by non-Indians within res-

ervation boundaries. See Act of June 25, 1948, ch.

8

645, 62 Stat. 757 (codified at 18 U.S.C. § 1151

(1982 ed.)).

(Emphasis added. )

b. 18 U.S.C. § 1151. Congress’s enactment in 1948 of

the currently effective definition of “Indian Country”, 18

U.S.C. § 1151, which this Court referred to in the above

quoted portion of Solem v. Bartlett, did not erase the

impact of the allotment process on the rights of non-

members. Moe v. Confederated Salish and Kootenai

Tribes Of The Flathead Reservation, 425 U.S. 463

(1976), which preceded Montana, establishes only that

18 U.S.C. § 1151 embodies a Congressional intent to dis-

place checkerboard Tribe-State civil jurisdiction over

tribal members within a reservation. /d., 425 U.S. at

478-479. Section 1151 does not mandate the elimination

of checkerboard civil regulatory jurisdiction over non-

members on fee land. Indeed, Moe upholds a State’s ex-

action of a tax within a reservation from nonmembers

of a tribe. /d., 425 U.S. at 481-483. WB at 40 n.12.

See also Rice v. Rehner, 463 U.S. 718, 721 (1983) (tri-

bal sovereignty is implicated by state regulation of alco-

hol “only insofar as the State attempts to regulate...

sale of liquor to other members of the Pala Tribe on the

Pala Reservation”) & id. at 720 n.7 (“[{rJegulation of

sales to non-Indians or nonmembers of the Pala Tribe

simply does not ‘contravene the principle of tribal self-

government’’”’); Washington v. Confederated Tribes of

the Colville Indian Reservation, 447 U.S. 1384, 161

(1980) (holding that a state tax on nonmembers within

a reservation does not transgress the doctrine of tribal

self-government “for the simple reason that nonmembers

are not constituents of the governing Tribe”) ; Washing-

ton v. Confederated Bands And Tribes Of The Yakima

Indian Nation, 439 U.S. 463, 501 (1979) (“classifica-

tions based on tribal status and land tenure inhere in

many of the decisions of this Court involving jurisdic-

tional controversies between tribal Indians and the

States”).

9

This reading of section 1151 comports with this Court’s

repeated recognition that the relations among the federal

government, the Indian tribes and the States ultimately

turn on “the unique status of Indians as ‘a separate peo-

ple’ with their own political institutions”. United States

v. Antelope, 430 U.S. 641, 646 (1977). See also, e.g.,

United States v. Kagama, 118 U.S. 375, 381-382 (1886)

(Indian tribes constitute a “separate people, with the

power of regulating their internal and social relations’’).

Congress has recognized that the integrity of a tribe

depends on its ability to govern itself under its own laws,

Williams v. Lee, 358 U.S. 217, 220 (1959); to determine

its membership and enforce its domestic customs, e.g.,

Fisher v. District Court, 424 U.S. 382 (1976); The In-

dian Child Welfare Act, 25 U.S.C. § 1901, ef seq.; to

preserve its unique religious and cultural heritage, e.q.,

The American Indian Religious Freedom Act, 42 U.S.C.

§ 1996; and to prevent nonmember activities that threaten

such core values, Montana, 450 U.S. at 564-566. The

broad reading of section 1151 the Tribe and its amici

urge is unnecessary to achieve any of these ends. It also

reflects an unwarranted contention that recognition of

County authority over nonmembers occupying fee land is

tantamount to disestablishment of the reservation. See,

e.g., Brief Of The Colorado River Indian Tribes at 12.

This falsely paints petitioner Wilkinson as an extremist.

Wilkinson’s point is more modest and far less inflamma-

tory: the Tribe undoubtedly retains certain powers “over

non-Indians on [its] reservation{ |], even on non-Indian

fee lands.” Montana, 452 U.S. at 565. The power the

Tribe here asserts, however, is not one of them. /d.

ce. Recent Statutes. Congress’s more recent enact-

ments, see, e.7., RB at 44, foster tribal se/f-government

and independence, but do not undermine Moniana’s rec-

ognition of the continued impact of Conegress’s former

allotment policy. None of the statutes the Tribe cites dis-

place State and local land use regulatory jurisdiction over

10

nonmembers on fee land. The federal environmental stat-

utes the Tribe cites are particularly apt.

There is a clear distinction between environmental reg-

ulation and local land use planning. California Coastal

Commission v. Granite Rock Company, 480 U.S. 572, 107

S. Ct. 1419, 1428 (1987) (land use chooses particular

uses for land; environmental regulation requires that

damage to the environment is kept within given limits).

Congress, fully cognizant of this distinction, has in the

statutes the Tribe cites extended to Indian tribes certain

environmental regulatory authority over all reservation

land, but has not provided for a tribe’s authority over

land use.” In implicit recognition of this approach, the

Department of the Interior, Bureau of Indian Affairs

(“BIA”) has provided for displacement of State land use

authority only over trust land:

$ 1.4. State and local regulation of the use of Indian

property.

(a) Except as provided in paragraph (b) of this

section, none of the laws, ordinances, codes, resolu-

tions, rules or other regulations of any State or po-

litical subdivision thereof limiting, zoning or other-

wise governing, regulating, or controlling the use or

development of any real or personal property, includ-

ing water rights, shall be applicable to any such

property leased from or held or used under agree-

ment with and belonging to any Indian or Indian

tribe, band, or community that is held in trust by

the United States or is subject to a restriction

against alien:tion imposed by the United States.

25 C.F.R. § 1.4(a) (1988) (emphasis added). See also

Santa Rosa Band v. Kings County, 532 F.2d 655, 664-

666 (9th Cir. 1975), cert. denied, 429 U.S. 1038 (1977).

To assert, as certain amici of the Tribe do, that zoning

authority is merely a surrogate for environmental regu-

2 The record shows as well that timber operations on fee land

in the closed area is subject to State forestry practices regulation.

Br. Tr. 606; WB at 9-10.

11

lation, see, e.g., Colville Brief at 28, is to ignore this

plain distinction.

In fact, as the appendix to petitioner Brendale’s open-

ing brief shows, after the local office of the BIA sanc-

tioned the Tribe’s closure of the roads into the “closed

area” of the reservation, the Assistant Secretary of In-

dian Affairs reversed that decision. He did so because

the BIA is not authorized under federal law to imple-

ment such tribal land use controls. Brendale Brief at

la-5a. The Tribe and every one of its amici fail even to

cite this ruling, preferring to rely solely on the Tribe’s

unilateral decision to close part of the reservation. See

RB at 4. Their silence cannot erase this ruling’s impact.

No longer can the Tribe claim express federal endorse-

ment of the line it drew arbitrarily across roads that un-

der federal law are accessible to all citizens. Thus, not only

are the general statutes the Tribe cites unsupportive, but

the Executive Branch has expressly refused to endorse

the power the Tribe claims.

3. Montana Is Well Reasoned. Montana is not an

anomalous decision.

Montana’s requirement that there be an express Con-

gressional delegation of authority for a tribe to exercise

“power beyond what is necessary to protect tribal self-

government”, 450 U.S. at 564, does not contradict what

the Tribe characterizes as the Colville/Wheeler formula-

tion that tribes retain those powers that Congress has

not explicitly or implicitly divested. See RB at 40. Mon-

tana speaks of the need for delegation in the context of

its explanation that Congress can divest a tribe of a

given power, and once it has, the Tribe cannot reacquire

it absent Congress’s intervention. Montana cites for this

proposition that portion of Williams v. Lee that includes

the statement “absent governing Acts of Congress, the

question has always been whether the state action in-

fringed on the right of reservation Indians to make their

own laws and be ruled by them.” Williams v. Lee, 358

12

U.S. 217, 220 (1959) (emphasis added). Cf. Montana,

450 U.S. at 564, citing, Williams v. Lee at 219-220. See

also Washington v. Confederated Tribes Of The Colville

Indian Reservation, 447 U.S. 134, 153 (1980) (a tribe

is divested of power when its exercise “would be incon-

sistent with the overriding interests of the National Gov-

ernment”).

Montana’s discussion of the need for express Congres-

sional delegation should therefore not be understood as

establishing a false dichotomy between a view of tribes

as original sovereigns vs. tribes as solely possessors of

delegated authority. In the contested language, Montana

was not addressing a tribe’s power pre-divestment; the

phrase in question merely states how a tribe divested of a

certain power may come to possess it anew.

Montana is also not out of step with such recent cases

as lowa Mutual Insurance Company v. LaPiante, 480

U.S. 9 (1987). LaPlante recognizes that tribal “[c]ivil

jurisdiction over {the “activities of non-Indians on res-

ervation lands’’| presumptively lies in the tribal courts

unless affirmatively limited by a specific treaty provision

or federal statute.” 480 U.S. at 17. Montana’s assertion

that the Allotment Acts are such a specific federal stat-

ute, 450 U.S. at 559 n.9, does not contradict LaPlante.

It is merely an example of an instance the LaPlante

language envisions.

Ill. CHECKERBOARD LAND USE REGULATORY AU-

THORITY WITHIN THE RESERVATION IS NOT

A PER SE THREAT TO THE TRIBE’S POLITICAL

INTEGRITY, ECONOMIC SECURITY OR HEALTH

AND WELFARE.

The Tribe and its amici assert that because the Tribe

admittedly possesses zoning jurisdiction over all reserva-

tion trust land, the County’s exercise of zoning authority

over nonmember fee land within the reservation neces-

sarily interferes with the Tribe’s authority and as a mat-

ter of law so threatens its political integrity as to bring

13

the case within the Montana exception designed to pre-

serve tribal self-government. RB at 17. There are sev-

eral fatal difficulties with this assertion.

First, it finds support not in the facts of record, but

in the Tribe’s—and the Ninth Circuit’s—political view

that comprehensive zoning power is “fundamental to'a

local government” and therefore must be an attribute of

the Tribe’s authority. RB at 32. In contrast, the Dis-

trict Court found as fact that |

[T]here 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 interfere with

the political integrity, economic security, or health

or welfare of the Tribe.

W. Pet. at 99a (emphasis added). See also Fed. R. Civ.

P. 52(a).

It is inappropriate to rely on platonic notions of what,

by some lights, tribal authority ideally entails, when this

Court has clarified repeatedly that tribal authority is not

subject to blanket definition. “[T]here is no rigid rule

by which to resolve the question whether a particular

state law may be applied to an Indian reservation . . .”

White Mountain Apache Tribe v. Bracker, 448 U.S. 136,

142 (1980). To posit Tribal authority in derogation of

the facts of record and based on a political presupposi-

tion concerning the benefit of comprehensive land use

power, is to transform Montana’s exception for authority

necessary for a Tribe’s maintenance of political integrity

into little more than a reification of one view of the

police power.*

3% Moreover, to uphold the Tribe’s assertion of a per se entitle-

ment to zoning authority over non-Indian owned land would be

anomalous—it would be to recognize a power in the Tribe greater

than the analogous power the United States possesses under the

property and supremacy clauses to regulate non-federal land. See

State of Minnesota By Alexander v. Block, 660 F.2d 1240, 1249

& n.18 (8th Cir. 1981), cert. denied, 455 U.S. 1007 (1982) (Congress

14

Second, the Tribe’s assertion of the need for compre-

hensive land use regulatory power in the open area flies

in the face of the District Court’s express finding that

the County’s zoning is more protective of agriculture,

the preservation of which is the admitted object of Tribal

open area zoning, than is the Tribe’s. See W. Pet. at 53a,

19; RB at 7.4 It is simply inappropriate to ignore the

facts of record and attempt to justify comprehensive

Tribal land use authority based upon general assertions

that other States or Counties allegedly have a “less than

normal concern” for regulating reservation land.* This is

political rhetoric that distorts this case, wherein the Dis-

trict Court expressly related its observation of the

County’s sensitivity to Tribal concerns. W. Pet. at-100a.

This case is thus distinguishable from Knight v. Shoshone

and Arapahoe Indian Tribes, 670 F.2d 900, 903 (10th

Cir. 1982), where the “absence of any [state] land use

control over lands within the Reservation” might justify

the impression of local government’s alleged indifference.

It is also inappropriate to ignore the clear record that

County authority in this case is circumscribed by State

law, and thus that the Tribe is safeguarded from the

danger of local prejudice. See, e.g., Tr. 494-495 (the

County treats the Tribe as a “consulted agency” under

Washington’s Environmental Policy Act); WB at 13.

Cf. Santa Rosa Band of Indians v. Kings County, 532

F.2d at 664.

has no plenary authority over non-federal land, but may regulate

conduct on such land only if Congress demonstrates that it must

exercise such power to protect federal property).

4 Contrary to the Tribe’s assertion (RB at 8), Wilkinson cer-

tainly does not contend that the County acted exclusively in regulat-

ing reservation land.. Wilkinson discussed the Tribe’s regulatory

history in his brief. WB 14-15. It is the propriety of this regula-

tion, not its existence, that is at issue.

5 See, e.g., Standing Rock Sioux Brief at 9. See also Fort Bert-

hold Tribes Brief at 10-12. Eleven States and an untold number of

counties and cities are concerned enough to have filed briefs here.

15

Third, the concern expressed in Moe v. Confederated

Salish and Kootenai Tribes, that checkerboard jurisdic-

tion is impractical because it would require enforcement

personnel “ ‘to search tract books in order to determine

whether criminal jurisdiction’ ” existed, 425 U.S. at 478,

quoting, Seymour v. Superintendent, 368 U.S. 351, 358

(1962), should not be read as a broadly controlling as-

sessment of what tribal governmental efficiency legally

requires. As a practical matter, Moe’s observation is in-

appropriate in this context; recourse to maps is a regu-

lar, necessary aspect of the application and enforcement

of land use regulations. Moreover, land use regulation

does not present the need for immediate, possibly life-and-

death response determinations essential in the area of

criminal jurisdiction.

Ultimately, any inefficiency attributable to checker-

board zoning jurisdiction is the necessary result of press-

ing, paramount concerns about the intent of Congress

and the Constitutional rights of United States citizens.

Moreover, if checkerboarding proves as inefficient as the

Tribe asserts, it should be an impetus leading the parties

to a cooperative, political resolution of what in truth is

essentially a political question of local land use control.

Montana does not preclude such an approach; it merely

recognizes the limits Congress has placed on a tribal

power that would otherwise be regularly exercised over

disenfranchised citizens.

Fourth, and most telling, the Tribe’s assertions about

the inefficiency, peril, and general unacceptability of

checkerboard zoning authority are absolutely inconsistent

with the Tribe’s simultaneous insistence that its zoning

scheme excepts from its reach all the incorporated cities

in the open area. See RB at 7 n.6, 12 n.9, 14 n.10, 25

n.15 & 31. The Tribe has, in its words, chosen—

presumably as the only politically expedient option—to

create a checkerboard scheme of its own, carrying with

it all the potential for conflict that it finds offensive in

the County’s regulation of the open area. This is not a

16

mere academic objection. Taxing the Tribe at its word,

it appears that its choice illustrates the core of Wilkin-

son’s objection: questions of local land use planning

theory are essentially political, and thus, absent the com-

pelling factual showing Montana requires, it is not for

the judiciary to posit in the Tribe a comprehensive zon-

ing power over nonmember fee land. The facts of record

as found by the District Court should determine the ex-

tent to which there is a need for Tribal authority over

nonmember fee land in this case, and any reassessment

of those facts must be made under the constraints of Fed-

eral Rule of Civil Procedure 52(a). Cf. Montana, 450

U.S. at 564 & 566 ns. 13, 15 & 16.

IV. THE TRIBE’S PRECONSTITUTIONAL STATUS

DOES NOT INSULATE ITS ACTIONS FROM CON-

STITUTIONAL SCRUTINY WHEN THE TRIBE

EXERCISES GOVERNMENTAL POWER CON-

GRESS HAS DELEGATED TO IT.

A. Talton v. Mayes Is Not Controlling.

The Tribe aserts that Talton v. Mayes, 163 U.S. 376

(1896), precludes Wilkinson from successfully cuntend-

ing that the Tribe’s exercise of civil regulatory power

over nonmembers is subject to scrutiny under the Fifth

Amendment. See RB at 47-49. The Tribe’s response mis-

perceives the issue presented.

It is uncontroverted that Talton v. Mayes establishes

only that a tribe’s pre-Constitutional status insulates its

activities from Constitutional scrutiny when the tribe is

exercising its original authority. Wilkinson’s argument

proceeds from this assumption to the next, unanswered

question: whether a tribe that is divested of a given

power, but regains it by Act of Congress, would there-

after be an arm of the federal government when it exer-

cises that power. See United States v. Wheeler, 435 U.S.

315, 328 n.28 (1978).

It is Wilkinson’s position that Congress, both in the

Allotment Acts and as a necessary, implied condition of

17

its recognition of the Tribe’s dependent status, divested

the Tribe of the broad, civil authority the Tribe claims

over nonmembers and their fee land. Montana, 450 U.S.

at 564. The Tribe contests this, but also asserts that

Congress has repudiated the assimilationist policies un-

derlying those Acts, and in practical effect has restored

to the Tribe whatever the Allotment Acts took away.

RB at 44.

If this Court proves the Tribe correct in its latter

assertion, the question Wilkinson frames becomes neces-

sary to decide.

B. Wilkinson Is Without Electoral Or Effective Ju-

dicial Redress For Arbitrary Tribal Exercise Of

The Power Congress Has Allegedly Delegated To

It.

It is uncontested that Wilkinson, while allegedly sub-

ject to the Tribe’s governmental power of land use con-

trol,* is nonetheless disenfranchised from all participa-

tion in Tribal government. The only justification for this

is a matter of blood: Wilkinson is not a member of the

Tribe. It is similarly uncontested that, while the Tribe’s

zoning ordinance purports to subject Wilkinson to out-

right expulsion from his home, (Jt. App. 56), he is with-

out access to direct judicial review of Tribal land use

decisions mandating that penalty (Jt. App. 54). Cf.

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

See also RB at 28 n.17 (asserting the Tribe’s immunity

from suit).

These stark deprivations are not in any way amelio-

rated by the irrelevant assertions of the Tribe’s amici

*6 Land use control is undoubtedly a core, traditional govern-

mental activity. See, e.g., Holt Civie Club v. City of Tuscaloosa,

439 U.S. 60, 72 n.8 (1978). The Tribe’s exercise of such a fed-

erally delegated power should cause it to assume the status of a

governmental actor, triggering the application of the Fifth Amend-

ment. Cf. San Francisco Arts & Athletics, Inc. v. United States

Olympic Committee, 107 S.Ct. 2971, 2985 (1987); Rendell-Baker

v. Kohn, 457 U.S. 830, 842 (1982).

18

that other tribal constituticns extend nonmembers cer-

tain rights, Swinomish Brief at 8; that other tribes pro-

vide nonmembers representation in tribal land use plan-

ning bodies, see, e.g., Colville Brief at 13 n.14; by the

specious assertion that the “ability to vote” is not an

“essential” protection of a landowner such as Wilkinson

who resides on the land subject to the Tribe’s control,

id. at 13;° or by the unhelpful suggestion that Wilkinson

could possibly prove an “offsetting” claim if he is sued

by the Tribe, or that he might be able to sue a tribal

official acting outside the scope of official authority, see

Brief of Colorado River Indian Tribes at 29.

The hard truth is that Wilkinson is without effective

redress. The situation of citizens such as Wilkinson has

not escaped the attention of the lower federal courts,

some of which have felt compelled to go almost unseemly

far in distinguishing this Court’s authority to provide

redress. See, e.g., Dry Creek Lodge, Inc. v. Arapahoe

and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980),

cert. denied, 449 U.S. 1118 (1981); Little Horn State

Bank v. Crow Tribal Court, 690 F. Supp. 919 (D. Mont.

1988). These cases create an unmistakable tension in

the law bred of an awareness of the fundamental and

unacceptable incongruity of Congress subjecting citizens

of a Nation founded on the principle that the “sovereign

governs only with the consent of the governed,’ Nevada

v. Hall, 440 U.S. 419, 426 (1979), to the delegated, un-

checked authority of an alien power.

The only defense the Tribe offers to these facts is that

Congress can once again divest the Tribe of the power

*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’). See also Holt Civie Club v. City of Tuscaloosa,

439 U.S. 60, 72 n.& (1978) (casting significant doubt on the constitu-

tionality of a municipality’s exercise of the “vital and traditional”

authority to “zone property for various types of uses” when those

subject to that power are disenfranchised).

19

it now exercises if the Tribe goes too far. RB at 48-49.

This conveniently ignores the interim harm. See, ¢.g.,

First English Evangelical Luthern Church of Glendale

v. County Of Los Angeles, 482 U.S. , 107 S.Ct. 2378

(1987). It also begs the question of whether Congress is

constitutionally free to delegate such power subject only

to a political check. Cf. Garcia v. San Antonio Metro.

Transit Authority, 469 U.S. 528 (1985). The Tribe

offers as defense nothing less than insulation of Congress

from the constraints of the Fifth Amendment. The only

prudential response is that of this Court in Oliphant and

Montana pretermitting this question: Congress has di-

vested the Tribe of the broad power it seeks here, and

because of the United States’s “great solicitude” that its

citizen’s liberty he protected, that Tribal power remains

moribund absent the compelling factual showing Montane

requires.

V. ANY REMAND FOR A BALANCING OF COUNTY

AND TRIBAL INTERESTS IN REGULATING NON-

MEMBER USE OF OPEN AREA FEE LAND

WOULD BE A WASTEFUL ACT IN DISREGARD

OF THE DISTRICT COURT’S UNREFUTED FIND-

INGS OF FACT.

The Tribe asserts that if its attack on Montana fails,

this Court should affirm the Ninth Circuit’s remand of

Wilkinson’s case (Whiteside II) to the District Court for

a balancing of the competing interests of County and

Tribe to regulatory authority over nonmember fee land

in the open area. This position reflects at least three

crucial errors.

First, the Tribe (RB at 32) incorrectly asserts that

the County failed to identify any off-reservation impact

of Tribal or County authority in the open area. There is

strong testimony in the vecord detailing the off-reservation

importance to Yakima County of the preservation of the

agricultural characteristics of open area fee land. Sce

Tr. 416-423: Ex. 244; WB at 10-11. In light of this evi-

dence, the District Court found specifically that Yakima

20

County’s open area zoning is “expressly designed to pro-

tect the County’s valuable agricultural land and other re-

sources.” WV’. Pet. at 52a, { 7.

Second, the District Court has already assessed the

factual impact of checkerboard jurisdiction and found

that it was neither difficult nor impossible to administer.

W’. Pet. at 97a.

Third, the Tribe and its amici ignore that the District

Court has already accomplished all the balancing that

can be done. The District Court determined that the

Tribe presented “no evidence whatsover” that could sup-

port the Tribe’s assertion that County regulatory au-

thority interfered with its political integrity, economic

security, or health or welfare. W. Pet. at 99a (emphesis

added). This is unequivocal. The Tribe has nothing to

bring to the scales: only the most cavalier disregard of

Fed. R. Civ. P. 52a) can alter the District Court’s

decision.

VI. CONCLUSION.

For the foregoing reasons, and those Wilkinson has

previously briefed, this Court should grant the relief

Wilkinson requested in his opening brief.

Respectfully submitted on December 2, 1988.

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