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

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NOS. 87-1622, 87-1697 AN

IN THE

SUPREME COURT

OF THE

UNI™ED STATES

|

>

~

~m

OCTOBER TERM, 1987

PHILLIP BRENDALE, Petitioner,

V-.

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,

Vv.

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION, Respondent.

BRIEF OF THE GOVERNING CO'NCIL OF THE

PINOLEVILLE INDIAN COMMUNITY IN SUPPORT

OF THE CONFEDERATED TRIBES AND BANDS OF

THE YAKIMA INDIAN NATION

DAVID J. RAPPORT

CALIFORNIA INDIAN LEGAL SERVICES

Attorneys for Governing Council

200 W. Henry Street

P.O. Box 488

Ukiah, California 95482

(707) 462-3825

a “i ‘. << %

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES... .ceeeeeeeees Liriv

INTRODUCTION. ccccccccccccscecccccccce I

SUMMARY OF 4, re se 1

INTEREST OF AMICUS CURIAE........... 3

A. Factual background........eeeee- 3

B. Statement of Interest.....-eese-- Ll

DE wl be 6s 606056 66666660066 e Oo Ce 12

I. THIS COURT HAS ARTICULATED

STANDARDS FOR DECIDING WHEN AN

INDIAN TRIBE CAN REGULATE NON-

INDIAN USE OF FEE LAND LOCATED

ON ITS RESERVATION.....eeeeeee- 12

II. THE COURT OF APPEAL PROPERLY

APPLIED THESE STANDARDS. THIS

COURT SHOULD AFFIRM ITS

DECISION. .cccccccccccccccccccee LY

A. Congress has not divested Indian

tribes of the authority to

regulate non-Indian fee owned

reservation land......eeseeeeeee LY

B. Comprehensive tribal land use

regulation generally promotes

the tribe's ability to make its

own laws and be ruled by them... 24

GC. go 66 56666 60 bebe bbe b6ebS Os 29

APPENDIX rrr eutTrLterrerrreririee A-l

-i-

TABLE OF AUTHORITIES

Page

CASES:

v. Mendoci unty,

123 Cal. App. 3d 334 (1981)....... 5

onfed d ibes and nd

the Yakima Indian Nation v.

Whiteside,

828 F.2d 529 (9th Cife ee 10,11

DeCoteau v. Distric urt,

420 U.S. G2Eecaneceensetsseeeenneene 21

Duncan v. Andrus,

517 F. Supp. 1 (N.D. Cal. 1977)... 4

Duncan v. United States,

667 F.2d 36 (Ct. Cls. 1981), cert.

denied 463 U.S. 1228 (1983)....... 4

Euclid v. Ambler Realty Co.,

272 U.S. 365 (1IDZO) coccscecocecses 24,25

Hardwick v. U.S.,

No. C-79-1710 SW

(N.D. Cal. 1979) wccccccccccesecs oo S

In re Hang Kie,

69 Cal. 149 (1886)..... o6eee6 0040008

Lincoln Trust Co. v. Williams

Bldg. Corp.,

229 N.Y. 313 (1920) .cccccces sesese ae

Mattz v. Arnett,

412 U.S. EBL (1973) cccceseesess oe

Montana v. United States,

450 U.S. 544 (1981) -cccccccccceses Passim

Page

ni ns. Cos.

vy. Crow Tribe,

471 U.S. 845 hid oh ed oe aneee 15

WwW i . a

Tribe, ,

462 U.S. 324 A 15,18

is ndi

’

> 12,16,17

fe) ni Vv.

i ,

684 F. Supp. 1042, 1044

(N.D. Cal. hh 2 66 6 © ¢ *eeee eee 3,7,8,9

Vv i naent,

MEE So ccccccccccccs 21

i Vv ni tes,

515 F. Supp. 56 (N.D. Cal. 1978)... 4

i Ww ler,

435 U.S. 313 PT 2a's céescecee *eeee 13

untai a ibe v.

Bracker,

eens Oe CROOO) cc cccccccs sevoe 26

Wi j Vv P

see U.8. 217 (1959) ..cccc. deoeveee ce 18

STATUTES:

Ee ow a ccc ccccccece 21,22,23

California Rancheria Act, Act of

August 18, 1958, Pub. L. 85-671,

72 Stat. 619, as amended by the

Act of August ll, 1964, 78 Stat.

DEEN ERGUN6G 6660600660 “TUTTE TTT 4

Page

General Allotment Act of 1887,.

24 Stat. ci: 1- ee 20

Indian Reorganization Act, Act of

June 18, 1934, c. 576, 48 Stat.

GBT. ccc ccc ccesrcesesesesesesesesers 22

MISC:

Anderson & Roswig, Planning, Zoning

& Subdivision: A Summary of

Statutory Law in the 50 States

(1966) ccccccccccciceccccsccseseccs 26

Cohens, Handbook of Federal Indian

Law (1982 EG.) cccececesseeesessees 23

Cunningham, Land-Use Control - The

State and Local Programs, 50 Iowa

L. Rev. 367 (1965) ccc wee eeeeeeeees 26

Opinions of the Solicitor, Dept.

of Interior, Vol. 1, 55 I.D.

14 (Oct. 25, 1934) ~ cece ceceeeseces 23

3 Ruthtcopf, The Law of Zoning and

Planning 100 (3d Ed. 1967)..++-++- 25

-iv-

INTRODUCTION

The Governing Council of the Pinoleville

Indian Community submits this brief in sup-

port of the Confederated Tribes and Bands of

the Yakima Indian Nation. Pursuant to Rule

36, the Governing Council submits with this

brief letters from counsel for Petitioners

Wilkinson, Yakima County and Brendale as

well as the Yakima Indian Nation which con-

sent to the filing of this brief.

SUMMARY OF ARGUMENT

_ According to the prior decisions of this

Court, to determine whether an Indian tribe

can exercise civil regulatory authority over

a non-Indian owner of reservation fee land, a

court must carefully review the existence of

tribal sovereignty by reference to relevant

Statutes, Executive Branch policy and ad-

ministrative or judicial decisions.

If these materials fail to demonstrate a

divestiture of tribal sovereignty, and the

non-Indian activity threatens to have a

direct effect on core tribal interests, the

tribe can civilly regulate that activity. If

tribal interests in regulating the activity

outweigh county interests, the tribal regula-

tion will pre-empt inconsistent county

regulations. .

The Court of Appeals properly applied

these principles in this case.

Comprehensive tribal zoning of all

reservation land is not inconsistent with the

Indian tribes' dependent status. The General

Allotment Act and similar laws did not divest

tribes of this authority.

Comprehensive zoning is an essential

element of tribal self-government and neces-~-

sarily affects core tribal interests.

In every county throughout the country

cities comprehensively zone within their

boundaries, leaving counties to zone the

unincorporated areas. Comprehensive tribal

zoning within reservation boundaries fits

this national pattern.

EE

INTEREST OF US CURIA

A. Factual background.

Between 1983 and 1986 the Pinoleville

Indian Community was restored as a federally

‘recognized Indian Tribe and the Pinoleville

1

Rancheria as a federally recognized

2

reservation. The 99 acres comprising the

reservation were originally purchased by the

United States in 1911 pursuant to appropria-

l. The rancheria is located in Mendocino

County, California. Mendocino County is a

rural county located approximately 100 miles

north of San Francisco in Northern Califor-

nia. The reservation is less than a mile

north of the City of Ukiah. It is bordered

on the north by Ackerman Creek which is a

tributary of the Russian River, and on the

south by its sole access road, Pinoleville

Drive.

2. The restoration resulted from final

judgments entered in Hardwick y. U.S., No C-

79-1710 SW (N.D. Cal. 1979) against the

United States on December 22, 1983 and March

5, 1986, and against Mendocino County on

November 18, 1985. The judgments resulted

from stipulations with the parties, approved

by the court following a hearing preceded by

notice mailed to potential class members and

published in the local newspaper. See

i ndi ) Vv n in

County, 684 F. Supp. 1042, 1044 (N.D. Cal.

1988).

tions acts passed in 1908. Prior to its res~-

toration the reservation had been terminated

under the California Rancheria Act, Act of

August 18, 1958, Pub. L. 85-671, 72 Stat.

619, as amended by the Act of August ll,

1964, 78 Stat. 390 [hereafter, “the Rancheria

Act").

As part of its termination the reserva-

tion was subdivided into 19 parcels. Deeds to

these parcels were conveyed in fee simple to

Indians from the reservation. Subsequent

parcel splits approved by Mendocino County

and conveyances by Indian owners have

resulted in the creation of 29 parcels. Of

these parcels 14, or 43% of the acreage,

remain in Indian ownership. The Indian par-

cels are scattered throughout the reserva-

3. For a further description of the ter-

mination process under the Rancheria Act see

Duncan v. Andrus, 517 F. Supp. 1 (N.D. Cal.

1977); Smith v. United States, 515 F. Supp.

56 (N.D. Cal. 1978); Duncan v. United States,

667 F. 2d 36 (Ct. Cls. 1981), cert. denied

463 U.S. 1228 (1983). |

a Sa eeaE

pt: ae th ee —

tion.

Zoning began in the unincorporated areas

of Mendocino County in 1956, before the

reservation was terminated in the early

1960's. Prior to 1979, when the law suit

which ultimately restored the reservation was

filed, Mendocino County had zoned the reser-

vation lands for agricultural uses. In 1982,

While the law suit was pending, the county

substantially revised its general plan and

zoning ordinance, re-zoning the reservation

industrial. See, Camp v. Mendocino County,

123 Cal. App. 3d 334 (1981). Residential uses

are not allowed in an industrial zone in Men-

docino County, because industrial uses are

generally regarded as incompatible with

residential use.

In May 1987, a non-member Indian of the

reservation applied to the county for a per-

mit to locate a redimix concrete plant and an

asphalt batch plant on land located in the

virtual middle of the reservation within the

100 year flood Plain of Ackerman Creek. In-

dian owned homes border the Parcel and no

fence or other obstruction separates the par-

cels. Pinoleville Drive, a narrow, two lane

road, provides the only access to the parcel.

Trucks entering or leaving the Parcel must

pass homes owned by tribal members, some of

which are occupied by elderly. tribal members.

Others are occupied by families with pre-

school age children.

When it learned of this application, the

Governing Council of the Pinoleville Indian

Community, formed in March 1985, adopted an

Ordinance imposing a one-year moratorium on

new industrial uses of reservation property.

The ordinance was intended to allow the

Governing Council time to develop a com-

prehensive land use plan for the reservation

that would harmonize continued residential

and agricultural uses of rese:vation land

with some commercial and limited industrial

uses. The ordinance was adopted Only after

the Governing Council conducted noticed

public hearings. The moratorium did not

prevent agricultural, residential or commer-

cial uses of reservation land.

The Governing Council also opposed the

permit application in hearings before the

county zoning administrator and Board of Su-

Pervisors. During the hearings the Governing

Council argued that the county was required

to prepare an Environmental Impact Report un-

der state law before approving the applica-

tion. The Governing Council's environmental

expert had determined that the proposed

Plants would create vast increases in heavy

truck traffic, noise, dust and air pollution

and threatened the continued use of Ackerman

Creek as a source of fish and water for mem-

bers of the Pinoleville Indian Community.

vi ndian uni v. Mendocino

County, supra, 684 F. Supp. at 1045.

In addition, the Governing Council

argued that under the circumstances confront-

ing the Pinoleville Indian Community it had

the authority to pass the morateriue or-

dinance and county approval would violate the

ordinance. The county nevertheless approved

the application without requiring an Environ-

mental Impact Report. See Pinoleville Indian

Community v. Mendocino County, Supra, 684 F.

Supp. at 1044. In so doing the county found

that the industrial plants as approved could

not have any significant impact on the en-

vironment. The county based this finding, in

part, on the industrial zoning for the reser-

vation.

The county reasoned that heavy truck

traffic, noise, dust and air and water pollu-

tion necessarily accompany industrial

develesennt. The county equated the existing

zoning of the reservation with the existing

environmental conditions on the reservation.

The Goverming Council pointed out that the

industrial zoning classification was in-

herently incompatible with its efforts to re-

Store the reservation as a residential com-

munity for its members. The Council argued

that over time industrial use of non-Indian

Property would effectively force tribal men-

- bers to abandon residential use of their

Property. Eventually, the conflict between

tribal and county land use policies would

cause a de facto termination of the Pinole-

ville Indian Community, even as the tribe

Struggled to recover from the de jure,

though invalid, termination attempted by the

federal government.

After the county approved the plants,

the Governing Council filed suit in the

Federal District Court for the Northern Dis-

trict of California, inter alia, to enjoin

the county and the Property owner from

violating its ordinance. Pinoleville Sesion

Community v. Mendocino County, supra, 684 PF.

Supp 1042. On March 19, 1988, the court

granted the Governing Council a preliminary

injunction against the Property owner. In

granting the injunction the court relied

primarily on this Court's decision in Montana

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

the Court of Appeals decision in Confederated

v. Whiteside, 828 F. 2d 529 (9th Cir. 1987).

Id.

Subsequent to the issuance of the

preliminary injunction, the Governing Council

approached the county with the suggestion

that the parties attempt to resolve the

litigation by adopting compatible land use

policies. As a result the parties, including

the affected property owner, entered into a

stipulation staying further proceedings for a

one year period, during which the Governing

Council and the county will attempt to adopt

identical, or, at least, compatible land use

policies governing both fee and trust lands

on the reservation. A true and correct copy

of the stipulation is attached hereto as Ap-

pendix 1. Under Montana if the parties adopt

-10-

2

compatible policies, the county zoning will

apply to non-Indian fee owners on the reser-

vation and tribal zoning will apply to trust

lands.

B. Statement of Interest.

The Governing Council believes that the

Yakima decision properly applied the prin-

ciples articulated in Montana and the other

decisions discussed below. As the Governing

Council has so recently learned, the consis-

tent application of those principles is ab-

solutely essential in preserving the right of

reserva’.ion Indians to make their own laws

and be ruled by them. This is particularly

true of the small reservations throughout

California called "rancherias." Without this

protection these communities will exist at

the whim of the countie. in which they are

located.

So long as this Court's recently articu-

lated principles of inherent tribal

sovereignty continue to apply, Indian tribes

and counties in California can negotiate

reasonable solutions to land use issues of

mutual concern. With their limited resources,

tribes and counties share a mutual interest

in resolving these issues without the expense

of litigation. The Governing Council's ex-

perience illustrates, however, that nego-

tiations on a government-to-government basis

will net occur unless the tribe's inherent

sovereignty empowers it to regulate non-

Indian use of fee land in appropriate cir-

cumstances.

ARGUMENT

I. THIS COURT HAS ARTICULATED STANDARDS

FOR DECIDING WHEN AN INDIAN TRIBE CAN REGU-

LATE NON-INDIAN USE OF FEE LAND LOCATED ON

ITS RESERVATION.

In | v. Suguami d ibe,

435 U.S. 191 (1978), this Court announced

that Indian tribes can be dispossessed of

aspects of their sovereignty ". .- - by im-

plication as a necessary result of their de-

pendent status ... " as well as by specific

-12<

congressional enactment. Oliphant, of

course, only specifically held that the

Suquamish Tribe's dependent status neces-

sarily deprived it of the sovereign authority

to prosecute two non-Indians in tribal court

for criminal violations.

In United States v. Wheeler, 435 U.S.

313 (1978), the Court clarified that Indian

tribes retain the sovereignty to prosecute

tribal members in tribal court for violations

of tribal criminal laws. The Court clearly

held that this authority derived from

retained sovereignty and was not a grant of

authority from Congress. Wheeler, supra, at

326, noted that:

The areas in which such implicit

divestiture of sovereignty has been

held to have occurred are those in-

volving the relations between an In-

dian tribe and non-members of the

tribe.

In Montana v. United States, 450 U.S.

544, 564 (1981), the Court explained that the

"implicit divestiture" doctrine does not

-}13-

apply to a tribe's internal relations, such

as the conduct of tribal members, questions

of tribal membership, domestic relations

among members, and rules of inheritance for

members.

But exercise of tribal power beyond

what is Cc i

= or to control inter-

nal relations is inconsistent with

the dependent status of tribes, and

so cannot survive without express

congressional delegation. [Citations

omitted.] (Emphasis added.)

Based on these principles, Montana held

that the Crow Tribe had no sovereign or

delegated congressional authority to prohibit

non-members from hunting on fee land located

on the reservation. However, the Montana

decision recognized that retained tribal

sovereignty could still provide an Indian

tribe with authority to regulate non-Indians

who enter consensual relations with the tribe

or when the conduct of non-Indians on fee

lands within the reservation:

. « « threatens or has some direct

effect on the political integrity,

the economic security, or the health

-14-

Or welfare of the tribe. Id. at 566.

The Court found that none of the conditions

which might allow the Crow Tribe to regulate

non-Indian hunting on fee land had been al-

leged in that case. The Court did provide

some examples of allegations that might jus-

tify tribal regulation: 1) non-Indian hunting

that imperils the Subsistence or welfare of

the tribe; 2) an abdication Or abuse by the

State of its responsibility to protect or

manage wildlife; 3) state regulations that

impair the right of tribal members to hunt or

fish; or 4) less Stringent regulation for on-

reservation hunting or fishing than for

Similar activities elsewhere. Id., at 566,

fn. 16. See also New Mexico vy. Mescalero

Apache Tribe, 462 U.S. 324, 331, fn. 12

(1983).

National Parmers Union Ins. Cos. vy, Crow

Tribe, 471 U.S. 845 (1985), has eliminated

any suggestion that implicit divestiture has

deprived Indian tribes of all authority to

-)S-

regulate non-Indians not involved in consen-

sual relations with tribes. In that case the

Court specifically held that Oliphant does

not automatically prevent an Indian tribal

court from exercising civil subject-matter

jurisdiction over non-Indians. That case in-

volved a suit brought by a tribal member

against a Montana school district based on an

occurrence arising on land owned by the state

within the boundaries of the reservation.

In remanding the case to the tribal

court to determine its own jurisdiction the

Court stated:

Rather, the existence and extent of

a tribal court's jurisdiction will

require a careful examination of

tribal sovereignty, the extent to

which the sovereignty has been al-

tered, divested, or diminished, as

well as a detailed study of relevant

Statutes, Executive Branch policy as

embodied in treaties and elsewhere,

and administrative or judicial deci-

sions. Id., at 855-856.

The issue now before this Court is

whether the Yakima Indian Nation by act of

Congress or by virtue of its dependent status

-16-

has been divested of the civil jurisdiction

to establish comprehensive land use policies

for its entire reservation encompassing all

lands within reservation boundaries, includ-

ing land owned in fee by non-Indians. That

question must be answered using the analyses

developed by this Court since Qliphant. That

is, in the context of the Yakima Indian Na-

tion establishing comprehensive land use

policies for its reservation:

1. Does a careful review of tribal

sovereignty and relevant statutes, Executive

‘Branch policy and administrative or judicial

decisions demonstrate a divestiture of juris-

diction over non-Indians; and

2. Will non-Indian use of fee land on

the reservation threaten or have a direct ef-

fect on the political integrity, economic

security, health or welfare of the tribe? In

answering this question a court should ex-

amine whether the non-Indian's activities on

his land imperil the subsistence or welfare

-17-

of the tribe. It should also examine exist-

ing state regulations to see whether 1) the

state in its regulation has abdicated or

abused its responsibility to regulate the

non-Indian, 2) the non-Indian activities per-

mitted under applicable state regulations in-

terfere with Indian use of reservation

resources, or 3) state regulations are ap~

plied on the reservation as rigorously as

4

they are off the reservation.

4. This case appears to present the Court

with a related although analytically distinct

question, since both the Yakima Indian Nation

and Yakima County seek to regulate the same

non-Indian activities. As recently pointed

out in New Mexico v. Mescalero Apache Tribe,

supra, 462 U.S. at 334, fn. 16:

The exercise of state authority

[even over non-Indians] may also be

barred by an independent barrier--

inherent tribal sovereignty --if it

"unlawfully infringe[s) ‘on the

right of reservation Indians to make

their own laws and be ruled by

them.'” j

v. Bracker, 448 U.S. 136, 142

(1980), quoting Williams v. Lee, 358

U.S. 217 (1959) [additional cita-

tions omitted.]

However, if, after applying the Montana

analysis, the Court concludes that the tribe

-18-

II. THE COURT OF APPEAL PROPERLY AP-

PLIED THESE STANDARDS. THIS COURT SHOULD AF-

PIRM ITS DECISION.

_The Court of Appeal in the decision

below followed this approach. It first

determined by reference to relevant statutes

and case law that the Yakima Nation had not

been divested of its inherent authority to

adopt comprehensive zoning laws for the en-

tire reservation, including non-Indian owned

fee lands. After determining that the tribe's

authority had not been divested, it remanded

the case to the district court to determine

whether the balance of the interests favors

tribal over county regulation.

-The Court of Appeals' conclusions and

disposition of this case were correct.

has authority to regulate the non-Indian, it

Should follow without further analysis that

application of the state law would interfere

with the right of reservation Indians to make

their own laws and be ruled bv them.

-19-

Nothing in the relevant statutes, Execu-

tive branch policy or legislative or judicial

decisions reveals an intent or understanding

that the allotment of a reservation divests

an Indian tribe of jurisdiction to regulate

non-Indian use of fee owned property, where

that use has a direct affect on the ability

of the tribe to regulate its own internal af-

fairs.

Congress. did not understand that the

General Allotment Act of 1887, 24 Stat 388,

so divested tribes of this authority. On the

contrary, this Court has repeatedly held that

the policy of the Act " .. . was to continue

the reservation system and the trust status

of Indian lands, but to allot tracts to in-

dividual Indians for agriculture and grazing.

When all the lands had been allotted and the

trust expired, the reservation could be

abolished.” Mattz v. Arnett, 412 U.S. 481,

496 (1973).

This congressional understanding is fur-

=20-

ther buttressed by the definition of "Indian

Country" in 18 U.S.C. §1151, which includes

+ « « all land within the limits of any In-

dian reservation under the jurisdiction of

the United States Government, notwithstanding

the issuance of any patent, ..." Id., at

504. In Seymour v. Superintendent, 368 U.S.

351, 358 (1962) this Court specifically held

that 18 U.S.C. §1151 includes within the

definition of “Indian Country" reservation

land patented in fee to a non-Indian. And in

DeCoteau v. District Court, 420 U.S. 427, fn.

2, this Court further explained that:

If the lands in question [non-Indian

owned fee lands] are within a con-

tinuing "reservation," jurisdiction

is in the tribe and the Federal

Government "not withstanding the is-

Suance of any patent, [such

jurisdiction] including rights-of-

way running through the reserva-

tion." 18 U.S.C. §115l(a) ... While

§1151 is concerned, on its face,

only with criminal jurisdiction, the

court has recognized that it

generally applies as well to ques-

tions of civil jurisdiction.

[citations omitted. ]

Of course, the allotment policy was

@2l-

repudiated in the Indian Reorganization Act,

Act of June 18, 1934, c. 576, 48 Stat. 987.

However, if Congress intended the reserva~

tions to continue until the Allotment Act

fulfilled its promise of assimilating the In-

dian residents into the dominant white

society, the question remains whether

Congress would have intended to deprive In-

dian tribes of any ability to regulate the

non-Indians moving onto the reservations

during the transition period. 18 U.S.C. §1151

and this Court's decisions interpreting that

statute as well as numerous allotment acts

demonstrate that it did not.

While it may defy common sense to sup-

pose that Congress intended that such non-

Indians automatically became subject to

‘tribal jurisdiction, see Montana v. United

States, supra, 450 U.S. at 560, fn 9, it is

equally nonsensical to suppose that Congress

intended to prevent tribes from regulating

such non-Indian conduct, if regulation is

@22-

necessary to protect the tribe's ability to

govern its Own members; not only nonsensical

but directly contrary to 18 U.S.C. §1151 and

the decisions of this Court.

The Executive branch likewise has con-

Sistently understood that the aliotting of

land in severalty and the granting of

citizenship has not destroyed the tribal

relationship or the tribe's authority to

regulate within the entire reservation not-

withstanding the issuance of fee patents to

Indians or non-Indians. See Opinions| of the

Solicitor, Dept. Of Interior, Vol 1, 55 I.D.

14 (Oct. 25, 1934), p. 445, 454, 466. See

also Cohens, n k of Fed ndi Ww

(1982 Ed.) p. 254, citing Attorney General

and Solicitor's Opinions dating from 1855.

Accordingly, the Montana test is fully

compatible with the judicial and administra-

tive interpretation of the effect of the

General Allotment Act, and later acts pat-

terned after the General Allotment Act. As

-23-

long as the reservations continue to exist

the tribes resident thereon continue to exer-

cise their inherent sovereignty within the

limits established by this Court.

B. Comprehensive tribal land use

regulation generally promotes the tribe's

ability to make its own laws and be ruled by

them.

The Court of Appeals was also correct in

concluding that comprehensive zoning of its

reservation necessarily affects a tribe's

ability to govern its own members. The

Governing Council's experience illustrates

that if county land use policies are suffi-

ciently hostile to the preservation of an In-

dian community, the power to zone non-Indian

property may be necessary to protect the very

existence of that community. But even where

the conflicts are much less intense, com-

prehensive regulation within a defined

geographical area is the sin qua non of

zoning. See Euclid v. Ambler Realty Co., 272

U.S. 365 (1926).

@24-

Zoning within municipal-boundaries in

the United States began in the late 1800's.

As early as 1899, Congress enacted height

zones for Washington, D.C. 30 Stat. 922. In

re Hang Kie 69 Cal. 149, 10 P. 327 (1886)

upheld a City of Modesto, California, or-

dinance prohibiting public laundries except

within a defined area of the city. New York

City adopted the first modern, comprehensive

zoning ordinance in 1916. See Lincoln Trust

Co. v. Williams Bldg. Corp., 229 N.Y. 313,

128 N.E. 209 (1920). However, this Court did

not uphold the constitutionality of com-

prehensive zoning until Euclid, supra, in

1926.

Comprehensiveness became the standard

for modern zoning ordinances, when the

Department of Commerce developed the Standard

State Zoning Enabling Act (1926). Reprinted

in 3 Ruthtcopf, The Law of Zoning and Plan-

ning 100 (3d Ed. 1967). All 50 states have

Since adopted such acts for municipalities,

-25<

but only 37 have enabled counties to zone.

See Anderson & RosSwig, Planning Zoning &

Subdivision: A Summary of Statutory Law in

the 50 States (1966); Cunningham, Land-Use

Control - The State and Local Program, 50

Iowa L. Rev. 367, 369, n. 3 (1965).

Thus, comprehensive zoning within

municipal boundaries has developed as the

pattern in modern land use regulation and in

37 of 50 states counties zone within their

unincorporated areas. Consequently, counties

are accustomed to local general purpose

governments within their boundaries develop-

ing separate zoning ordinances. Tribal

zoning within entire reservations fits this

historical development of zoning within the

United States. County zoning of non-Indian

fee owned lands within reservation bound-

aries, on the other hand, is contrary to this

historical development, and frustrates the

very purpose of comprehensive zoning.

As envisioned by the Standard Act a

-26-

zoning ordinance establishes zones or dis-

tricts designated as usable primarily for

defined purposes. The provisions in each

zone had to be uniform throughout the zone.

Standard Act §2. While variations within

zones are allowed through the use of

variances and use permits, the primary objec-

tive remains grouping compatible uses

together.

If a county, for example, could zone

every third parcel in each block of a city

located in the county, certainly such a prac-

tice would undermine comprehensive municipal

zoning. Similarly, if a county can reach

into the heart of an Indian reservation and

authorize uses on non-Indian fee lands that

are incompatible with uses of adjacent tribal

land authorized by a tribal zoning ordinance,

5

the result will disrupt tribal zoning.

5. Many of the amici in support of the County

of Yakima suggest that it violates due

process or is, at least, unfair to subject

non-Indians to any form of tribal regulation,

because as non-members they cannot vote in

@27J-

As the history of zoning in Yakima and

Mendocino counties demonstrates, both tribal

and county zoning are relatively recent

developments. For this reason, non-Indian

fee owners of reservation land cannot

legitimately claim that tradition dictates

the application of county zoning laws to

their property. In the absence of any clear

congressional intent to divest tribes of such

authority, the Court of Appeal's remand to

have the district court balance the respec~

tive interests of the federal and tribal

governments, on the one side, and the county

government, on the other, was the proper dis-

position.

tribal elections and directly influence the

content of these regulations. However,

property owners are frequently subject to

land use regulation by jurisdictions in which

they are not voters. This circumstance is

not unique to Indian reservations. The right

to vote generally depends on residence, not

property ownership. Accordingly, counties

frequently regulate through zoning property

owned by non-residents, who have no voice in

county elections. Amici simply cannot tie

the right to regulate to the right to vote.

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Contrary to the arguments advanced by

amici in support of Yakima County, the Court

of Appeal's disposition properly respects

this Court's pronouncements in Montana,

Supra. The decision simply recognizes that

in the unique field of land use regulation a

tribal decision to include non-Indian fee

owned reservation land in a comprehensive

tribal zoning ordinance rests upon the

tribe's need to make its own laws and be

ruled by them.

CONCLUSION

The Yakima Indian Nation retains its

sovereign authority to zone its reservation.

That authority necessarily extends to both

trust and fee land located on the reserva-

tion. The exercise of that authority is not

inconsistent with the Yakima Nation's depen-

dent status. In fact, its ability to coor-

dinate the use of reservation land lies at

the heart of reservation self-government.

Congress has not divested the tribe of this

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authority.

As the Governing Council has learned

county and tribal governments can accommodate

their mutual interests in land use regulation

through negotiation. But this will not hap-

pen unless this Court upholds the tribe's

sovereign status and its authority to regu-

late fee lands in appropriate circumstances.

Respectfully submitt

fO_-

DAVID J. RAPPOR

CALIFORNIA INDIAN LEGAL SERVICES

Attorneys for Governing Council of

Pinoleville Indians

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DAVIO J. RAPPOS'

LESTER J. MARSTO!

yEE Pern

a) , mi he

CALIFORNIA INDIAN LEGAL PSenu foes— § | ee

: 200 West Henry Street

* Ukiah, California $5482 ~ .

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'Telepnone: (707) 462-3825 9 1" JUN 1 0 882

: ’ ° ? ; Ai WT TAR CH

‘Attorneys for Piaintilt ete bas etd oS erst) CQuat

ae NORTHERN IST RICT OF CALIFORNIA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Governing Council] of Pinoleville

Indian Community

Plaintiff, NO. C-87-4320 EFL

v. STIPULATION AND ORDER

Mendocino County, Boerd of

Supervisors of Mendocino County;

Ross Mayfield, Brent Mayfield,

Defendants.

i ed

It is hereby stipulated by and between the sarties to the

* above-entitled action through their respective attorneys of

record as follows.

1. The existine preliminary injunction enjoining the

_Mavfield defendants from operating any concrete plant or any as-

- phalt Dlant shall remain in effect for one (1) vear, unless the

Mayfield defendants obtain from plaintiff a hardship exemption as

to either one or both of such plant operations.

2. Prior to July 1, 1988, the County shall consider adopt-

inc an interim ordinance effective immediately upon edoption that

‘prohibits for a one-year period any issuance of any approval for

CTTOMFEATTION AND ORNER l

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any industrial use witmin the existing voundaries of nlaintiff's

| Rancheria. In the event the County fails to adopt such an or-

dinence prior to July 1, 1988, this Stipulation shall de null and

“void and of no further force or effect.

4%. With the assistance of County piaintiff£ snall present to

defendant County for implementation plaintiff's proposed amend -

“ment to that part of defendant County's General Plen which 4p-

‘plies within the existing boundaries of plaintiff's Rancheria.

' such proposed amendment shall be sufficiently detailed to allow

' defendant County to determine the appropriateness of compatible

,.

' land use policies and zoning requirements within the existing

‘ boundaries of plaintiff's Rancheria. Defendant County and piain-

* tiff shall cooperate to initiate and timely process such proposed

amendment. Defendank County shall waive all faes associated with

| processing such amendment, including implementine zoning require-

ments.

4. Except for plaintiff's ordinance currently in effect

. strictly prohibiting new industrial uses w,.thin its boundaries,

' plaintiff shall adopt no zoning ordinance or any other land use

regulation prior to or during the period of the County interim

_ ordinance described in paragraph 2 of this Stipulation.

5S. The parties stipulate to a stay of further proceedincs

in this court, pending defendant County's adoption of amendments

to the County General Plan end implementing zoning laws satisfac-

. tory to plaintiff. Such stay of further proceedings shall remain

' im effect for a one-year period commencing July 1, 1988, or until

the above-referenced County General Plan Amendment is adopted,

‘ whichever occurs first.

@TTPHLATION AND ORDER 2

PF =SEESE TT at

=SSs Se Ss SS Sst sess

6. Issues caised in the instant complaint as to the effect

of tne stipulated judgment in Hardwick v. Uni a

No. C-79-1710 SW (N.D.Cal. 1979), and plaintiff's CEQA claims

shall be reserved for further proceedings in this court.

7. #.|I-€ the County adopts the interim ordinance described in

Paracraph 2 of the stipulation, plaintiff shall waive its claims

to attorney's fees incurred to date and to civil penalties for

past violations under its Ordinance No. 2.

8. If the County adopts the interim ordinance described in

paracrapnh 2 of this Stipulation, defendant County shall pay

plaintiff its costs of litigation incurred as of the date of this

Stipulation which plaintiff estimates at this time to equal the

sum of $1,330.71, including expert witness fees. County shall

pay said costs within thirty (30) days after Slaintiff submits

its cost bill to the County.

9. If the stay of further proceedings is terminated by the

County's adoption of amendments to the County General Plan

satisfactory to plaintiff, the parties agree as follows:

(a) Plaintiff shall dismiss Mendocino County from the pend-

ing litigation;

(b) Defendant County and defendant Mayfields shall dismiss

any pending appeal of the instant voreliminary injunction.

(c) Plaintiff shall waive any claim for attorney's fees in-

curred subsequent to the date of this Stipulation, reserving the

right to claim such fees if the County fails to adopt the above

referenced General Plan Amendment and implementing zoning

requirements.

(d) The Mayfields shall stipulate to comply with the Tribal

eT TDNTATTAN ANN AONFeE 3

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land use plan, provided said plan allows the Mayfields to con-

tinue uses to the extent the Tribe has authorized said uses under

the hardship exemption provisions of Ordinance No. 2 in effect

before adoption of said plan.

The parties reserve the right to request an additional stay

if at the end of the one-year period they believe completion of a

satisfactory General Plan Amendment will occur within a

reasonable time.

DATED: C/o J £5

Deputy County Counsel

Attorneys for Defendants

County of Mendocino and

Board of Supervisors of

County of ——

DATED: £-6-*& GOVERNING coonctL OF P EVILLE

ne MUNITY

BY: a a

ql J. rereiats

Attorney for Plaintiff

DATED: £-7-JS5

Ross Mayfield and

Brent Mayfield

ORDER

Having read the foregoing Stipulation and good cause appear-

ing therefor,

IT IS SO ORDERED.

JUDGE of the United States

District Court

DATED: '4UH G

ieee

STIPULATION AND ORDER t

Onn Ont neler eomr ori amrnat

CERTIFICATE OF SERVICE

I, David Rapport, being first duly sworn deposes and says:

1. I am a member of the Bar of this Court and represent the

Governing Council of the Pinoleville Indian Community.

2. I have served copies of Brief of the Governing Council

of the Pinoleville Indian Community in Support of the Con-

federated Tribes and Bands of the Yakima Indian Nation on all

parties of record herein as follows:

On Moven ber ¥ , 1988, I deposited a true copy of said

document in a sealed envelope with the correct postage thereon

fully prepared in the United States Post Office mailbox at Ukiah,

California, addressed to each attorney of récord herein as

follows:

Patrick Andreotti Tim Weaver

Flower & Andreotti Cockrill, Weaver & Bjur, P.S.

Suite 1, Yakima Legal Center 316 North Third Street

303 East "D" Street P.O. Box 487

Yakima, WA 98901 Yakima, WA 98907

Jeffrey C. Sullivan Michael Mirande

Yakima County Prosecuting Bogle & Gates

Attorney The Bank of California Center

392 County Courthouse ' WA 98164

Yakima, WA 98901

J.

County of Mendocino )

) ss.

State of California )

On _NOVEMBER 4 , 19.88, before me, the undersigned a Notar

Public in and for said State, personally appeared DAVID J. RAPPORT

known to me to be the person whose name is

subscribed to the within instrument, and severally acknowledged

to me that he executed the same.

OFFICIAL SEAL

Witness my hand and official seal. KATHY @RADISH

Gary a

tr ay MENDOCINO COUNTY

fr My Comm. Exp. Sep. 10, 1931

Notary Public\\in and for said State ===———oowoOoOCUoO >

: