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

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Nos. 87-1 87-1697, and 87-171

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In the Supreme Co pds

BOSKPN ff, SPANIO‘, uA

United States

OcTOBER TERM, 1988

PHILIP BRENDALE,

Petitioner,

Vv.

CONFEDERATED TRIBES AND BANDS OF

THE YAKIMA INDIAN NATION, et al.,

Respondents.

STANLEY WILKINSON,

Petitioner,

v.

CONFEDERATED TRIBES AND BANDS OF

THE YAKIMA INDIAN NATION,

Respondent.

COUNTY OF YAKIMA, et al.,

Petitioners,

v.

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

— a

a a

BRIEF OF THE COLORADO RIVER INDIAN TRIBES AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

WILLIAM G. LAVELL ALLETTA D’A. BELIN*

Tribal Attorney KENNETH L. KIMMELL

FAIN P. GILDEA SHUTE, MIHALY & WEINBERGER

Associate Tribal Attorney 310 McKenzie Street

JOHN C. SCHUMACHER Post Office Box 2768

Associate Tribal oe, Santa Fe, NM 87504-2768

COLORADO RIVER INDIAN TRIBES __ Telephone: 505-988-8938

hoes as Come! of Rc

Telephone: 602-669-5271

Attorneys for Amicus Curiae Colorado River Indian Tribes

BOWNE OF SAN FRANCISCO, INC. + 190 NINTH ST + SF... CA 94103 + (415) 8664-2300

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TABLE OF CONTENTS

Interest of the Amicus Curiae ................ceceeees

re et Se i voc ivéetuccistoeunes

Ns Ce ie ie dnt eine indienne chad eens

In determining which entity has land use regulatory authority

over fee lands on reservations, the Court looks at the scope

of inherent tribal sovereign powers, at relevant treaties,

and at all relevant subsequent laws which may either

preempt or confer state or tribal authority.............

II

At the time the Yakima Reservation was created, the tribe

possessed civil regulatory power throughout its reservation

over both Indians and non-Indians...................

Ill

Federal actions since the creation of the Yakima Reservation

confirm tribal authority to zone fee lands on the reserva-

tion and preempt any county authority to zone such lands

A. The General Allotment Act of 1887 .............

B. The Indian Reorganization Act..................

C. The 1948 Enactment of a New Statutory Definition

of “Indian Country,” 18 U.S.C. Section 1151......

D.- Post-1948 Enactments and Policy Statements .....

IV

Tribal authority to zone and regulate land use on fte lands

within the reservation is essential to the political integrity,

economic security, health and welfare of the tribe ......

A. Importance of Tribal Zoning...............\....

B. County Zoning of Fee Land Undermines and Is

Inconsistent With Tribal Zoning Authority ........

C. The Zoning Scheme Urged By Petitioners Would

Engender Other Unfair and IIlogical Results ......

4

19

21

TABLE OF CONTENTS

Page

V

If remedies for aileged violations of civil rights of non-

Indians on fee lands in Indian reservations are inadequate,

the proper solution is congressional action, not judicial

revamping of the fundamental precepts of Indian law... 26

ComGRRGIOR . ow. cc cccccccccencsnsennese eee 30

iil

TABLE OF AUTHORITIES CITED

Cases

Page

Bryan v. Itasca County, 426 U.S. 373 (1976) ........... 17

i i , UES sco ccccccccsceseccesece 13, 16

California v. Cabazon Band of Mission Indians, 107 S.Ct.

Te en cc ewtecesecs 17

California State Board of Equalization v. Chemehuevi

Indian Tribe, 106 S.Ct. 289 (1985) .................. 29

Central Machinery Co. v. Arizona State Tax Comm'n, 448

EE EE 7

DeCoteau v. District County Court, 420 U.S. 425 (1975) 16

Donnelly v. United States, 228 U.S. 243 (1913) ......... 15

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ..... 19, 22

Fisher v. District Court, 424 U.S. 382 (1976) ........... 7

F.P.C. v. Tuscarora Indian Nation, 362 U.S. 99 (1960)... 20

lowa Mutual Ins. Co. v. LaPlante, 107 S.Ct. 971 (1987) ..5, 21

Kennerly v. District Court of Montana, 400 U.S. 423 (1971) 7,8

Knight v. Shoshone & Arapahoe Indian Tribes, etc., 670

I 23

Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47

Nene tcc ecevcecce 27

Lyng v. Northwest Indian Cemetery Protective Ass’n, 108

ds Ce ec eccsescorccce 20

Mattz v. Arnett, 412 U.S. 481 (1973)................. 10, 11

McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164

ed cic ee dente ceceses 5, 6, 7,8

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

EE 6, 14, 18, 27

Moe v. Confederated Salish & Kootenai Tribes, 425 U.S.

ee ng cen canenees 7, 11, 12, 16, 22

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

Morris v. Hitchcock, 194 U.S. 384 (1904) ............. 13, 16

Morton v. Mancari, 417 U.S. 535 (1974) ............... 17

National Farmers Union Ins. Co. v. Crow Tribe, 105 S.Ct. 7

rr 18, 27, 29

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324

a i cc eee tnscce 5,7, 18

Puyallup Tribe, Inc. v. — of Game, 433 U.S. 165

ee Die sek esaneccscdvceensenece 29

iv

TABLE OF AUTHORITIES CITED

CASES

Page

Ramah Navajo School Bd. v. Bureau of Revenue, 458 U.S.

CE cara id ss eke Reenle Reh taste Gis Was 7

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ....17, 27

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

Ns sd vA A OAR OES Enea bad o6 eK 21

Segundo v. City Rancho Mirage, 518 F.2d 1387 (9th Cir.

PE iaekwssga0 cscchebees Paeknnedannnde Vie ond 5, 21

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

Solem v. Bartlett, 465 U.S. 463 (1984) ............... 10, 11

Tribes and Bands of Yakima Indian Nation v. Whiteside,

Se ae ee Gs OD 5 es badkesamesancescoess 22

United States v. Kagama, 118 U.S. 375 (1886).......... 8

United States v. Mazurie, 419 U.S. 544 (1975)....... 5, 27, 28

United States v. McGowan, 302 U.S. 535 (1938) ........ 16

United States v. Pelican, 232 U.S. 442 (1914) .......... 15

United States v. Sandoval, 231 U.S. 28 (1913) ......... 15, 16

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

Village of Belle Terre v. Boraas, 416 U.S. | (1973) ...... 20

Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U.S.

ere re ee eee 8

Washington v. Confederated Tribes of Colville Reservation,

we. SS FPP ee eee 14, 18

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

Per sere hy eo ree cea 5, 6, 7, 8, 18

Williams v. Lee, 358 U.S. 217 (1959) ............... 5, 8, 27

Worcester v. Georgia, 6 Pet. (31 U.S.) 515 (1832) ...... 9

Yakima Indian Nation v. Whiteside, 617 F.Supp. 750 (E.D.

TE SD 6.0o 4c adedekeuseteneseniwenes viesease 21, 22

Young v. American Mini Theaters, 427 U.S. 59 (1976)... 20

Statutes

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

Sree: MED Bs MO hick cadavinncedu sous 10, 11, 13

The Indian Civil Rights Act of 1968, 25 U.S.C. sections

PEGE SAbadevenbenkecsanhueectrwaeeenienans 17

Vv

TABLE OF AUTHORITIES CITED

STATUTES

Page

Indian Financing Act of 1974, 25 U.S.C. sections 1451 et

ga i x edd 5 bnne nade db coe ck ens co eesdeiond seus 17

Indian Reorganization Act of June 18, 1934, 25 U.S.C.

RE PT Oe Pe eee Pe ere aye 1,14

Indian Self-Determination and Education Assistance Act of

1975, 25 U.S.C. sections 450 et seq. ..........22.655. 17

Indian Trade and Intercourse Act (4 Stat. 729) ......... 15

Pub. L. 280, 67 Stat. 588, as amended, 18 U.S.C. section

Sy ee a ED EOD 4. bce 6 us ete dde cécnecess 17

ER eg ke oe dks b ecu ewnesteedese )

Ro OT a Ge se oenee ee ean 2

ee EE es ode dv aceehecenee 2

8 rere 8, 15, 16, 17

Other Authorities

AIPRC Jurisdiction Report, 96 (1976) ................ 27, 28

23 Ops. Atty. Gen. 214 (1900) ...... Ree aah « 4 3 13, 16

Be Gs Be es Se IED hb ood beet csrdctesecsce. 13, 16

Felix S. Cohen’s Handbook of Federal Indian Law (1982) 6

Comment, Jurisdiction to Zone Indian Reservations, 53

fi, Ns SD GOED cvcccendescccescecs 20, 21

V. Deloria, Jr., God is Red (1973) at 91-109, 249 ....... 23

Gross, Indian Self-Determination and Tribal Sovereignty:

An Analysis of Recent Federal Policy, 56 Texas L. Rev.

eee a eee a eke Y ob in 4 18

Historical and Revision Notes: Federal Indian Law at 34......

Ra eae Samer ere ainite Fe NPA Pr nce Re aie ee 16, 26

Jurisdiction to Zone Indian Reservations, 53 Wash. L. Rev.

da Dl a ie it 23

D. Mandelker, Land Use Law, section 1.03 ............. 22

Report on Federal, State, and Tribal Jurisdiction, Final

Report to the American Indian Policy Review Commis-

Se EE 6 c4 oud ce bu eeReuhs ne OLsCudekoute use bas 24

vi

TABLE OF AUTHORITIES CITED

OTHER AUTHORITIES

Page

D. Suagee, American Indian Religious, Freedom and Cul-

tural Resources Management: Protecting Mother Earth’s

Caretakers, 10 American Indian Law Review, 1, 13

LOGE 005465006054 eden sh cndadunhecsdh sé 21

6 Weekly Comp of Pres. Doc. 894, 899-900 (1970) ...... 18

19 Weekly Comp. Pres. Doc. (Jan. 24, 1983) ........... 18

C. Wilkinson, American Indians, Time, and the Law

SORTED ius 00600 kasd nb aed bere eee eethe tases bee 28, 29

N. Williams, American Land Planning Law, section 1.06

GURPEE oc cp axsiascsaneseneienenseecueenseaeunae 21

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

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1988

PHILIP BRENDALE,

Petitioner

V.

CONFEDERATED TRIBES AND BANDS OF

THE YAKIMA INDIAN NATION, et al.,

Respondents.

STANLEY WILKINSON,

Petitioner,

v.

CONFEDERATED TRIBES AND BANDS OF

THE YAKIMA INDIAN NATION,

Respondent.

COUNTY OF YAKIMA, et al.,

Petitioners,

v.

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 THE COLORADO RIVER INDIAN TRIBES AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

The Colorado River Indian Tribes (“CRIT’’) is an Indian tribe

organized in accordance with Section 16 of the Indian Reorgani-

zation Act of June 18, 1934, 25 U.S.C. section 476 (“IRA”). The

Colorado River Indian Reservation comprises approximately

275,000 acres of land in both California and Arizona spanning the

Colorado River north of Blythe, California. The Reservation was

established by Congress on March 3, 1865 (13 Stat. 5*9). The

boundaries of the Reservation were expanded and further deline-

ated by Executive Orders of November 22, 1873, November 16,

1874, May 15, 1876, and November 22, 1915. The Reservation

was established to provide a permanent homeland for the Indian

tribes of the Colorado River, and it encompasses a portion of the

traditional homeland of the Mohave tribe.

The townsite of Parker lies on the Arizona side of the Colorado

River within the exterior boundaries of the Reservation. Whether

Parker is part of the Reservation, as CRIT and the United States

contend, or is instead an island of non-reservation land sur-

rounded by the Reservation, as Parker claims, is disputed in

litigation currently pending in United States District Court for the

District of Arizona. Colorado River Indian Tribes v. Town of

Parker, No. CIV 83-2359-PHX-RGS.'

' The Town of Parker has filed an amicus curiae brief in support of

petitioners in this case. In its brief, Parker does not adhere to proper

rules of practice by simply describing its interest in the case and then

presenting legal argument relating to the case before the Court. Rather,

Parker presents to this Court an extensive summary of the legal

arguments it has presented to the United States District Court in CR/T

v. Parker, terming these arguments a “surnmary of facts.” Parker then

proceeds to argue to this Court that fee lands within Parker should not

be subject to tribal authority.

Parker’s argument is improper on several counts. First, the issues

addressed by Parker are pending before the United States District Court

in Phoenix, not before this Court. Second, the arguments labeled “facts”

by Parker are not undisputed facts supported by evidence. Rather, they

are inaccurate representations of fact mixed in with legal argument. The

evidence in the record before the District Court paints a factual picture

far different from that presented by Parker in its amicus brief. This

2

Approximately two-thirds of the lots in Parker are fee patented

lots owned by non-Indians and Indians. The remaining one-third

of the lots were never patented and are either owned by the

United States in trust for CRIT, as the United States and CRIT

contend, or by the United States, as Parker contends. Elsewhere

on the Reservation, the vast majority of land is owned by the

United States in trust for CRIT. Less than 10,000 acres of the

Reservation was allotted to individuals pursuant to the Allotment

Acts of April 21, 1904 (33 Stat. 224), and March 3, 1911 (30

Stat. 1058, 1063).

According to the U.S. Census, as of 1980 there were 7,873

persons living on the Reservation, of whom 1,965 (25%) were

American Indians. Within the town of Parker, in 1980 there were

2,542 persons, 282 of whom (11%) were American Indians.

There are approximately 2980 enrolled members of CRIT.

CRIT has exercised land use regulatory authority throughout

the Reservation, including in the town of Parker. CRIT has

adopted a nuniber of land use ordinances which regulate such

matters as development permits, off-road vehicles and preserva-

tion of cultural resources. In September 1988, CRIT adopted a

comprehensive general plan for a 20,000 acre portion of the

Reservation known as “the Western Boundary,” which comprises

the majority of the California side of the Reservation. CRIT

intends to adopt additional area plans for other portions of the

Reservation as well. CRIT is also in the process of developing a

Reservation-wide zoning code.

Within the town of Parker, both CRIT and Parker assert land

use regulatory authority. The fact that Parker has required tribal

compliance with its building and zoning laws on both fee lots and

non-fee lots in Parker has underscored conflicts with CRIT

Court should not assume to be true any of the factual assertions made by

Parker in section II of its brief.

Despite CRIT’s intense desire to set the record straight before this

Court, it will refrain from repeating the errors made by Parker and will

not embark on any argument of the merits of CRIT v. Parker. The only

facts from that case presented herein are those that are necessary for

CRIT to describe its interest in the case before this Court.

3

regulations and has caused serious problems for CRIT and its

members.

Insofar as the Court’s decision in this case could affect which

jurisdiction—CRIT, the town of Parker, or the counties of La

Paz, Arizona or San Bernardino or Riverside, California—has

land use regulatory authority over fee lands and trust lands within

the Colorado River Indian Reservation, CRIT has a very strong

interest in the outcome of this case.

SUMMARY OF ARGUMENT

This brief presents two parallel, complementary arguments.

One is largely legal; the other largely factual. CRIT’s legal

argument places the holding in Montana v. United States, 450

U.S. 544 (1981) and its language concerning tribal sovereign

authority over non-Indians on fee lands into the context of over

150 years of treaties, statutes, and case law. CRIT shows that

Montana cannot be construed to impose the narrow limits on

tribal civil regulatory authority urged by petitioners. If so con-

strued, Montana conflicts in fundamental ways with prior law.

Instead, Montana must be understood as an affirmation of inher-

ent tribal authority “necessary to protect tribal self-government

[and] to control internal relations.” 450 U.S. at 564.

To give that affirmation full force, and to avoid an abrupt

departure from prior case law, the Court must endow the Mon-

tana language regarding tribal authority over non-Indians on fee

lands with vigor and meaning. The inevitable conclusion is that in

this case, as will be true in most cases, the tribe will be found to

have retained the exclusive power to zone fee lands within the

reservation.

The factual argument presented in this case demonstrates that

allowing counties and cities to zone fee lands within Indian

reservations (and concomitantly stripping tribal governments of

that authority) prevents tribal governments from regulating con-

duct which “threatens or has some direct effect on the political

integrity, the economic security, or the health or welfare of the

tribe.” 450 U.S. at 566. This argument is rooted in the fact that

the power to zone within “Indian country” is an essential aspect

4

of the right of tribal self-government. It is undisputed that Indian

tribes have the power to zone trust lands. That power cannot

possibly be effective if the tribe cannot also regulate adjacent or

interspersed fee lands within the reservation. Thus, in virtually all

instances, eliminating tribal zoning authority over such lands

would effectively deprive the tribe of the ability to protect the

health, safety, and welfare of its members and of all those people

residing on the reservation. ,

ARGUMENT

I

IN DETERMINING WHICH ENTITY HAS LAND USE

REGULATORY AUTHORITY OVER FEE LANDS ON

RESERVATIONS, THE COURT LOOKS AT THE SCOPE

OF INHERENT TRIBAL SOVEREIGN POWERS, AT

RELEVANT TREATIES, AND AT ALL RELEVANT SUB-

SEQUENT LAWS WHICH MAY EITHER PREEMPT OR

CONFER STATE OR TRIBAL AUTHORITY

Most of the briefs in support of petitioners focus exclusively on

the narrow issue whether, under Montana v. United States, 450

U.S. 544 (1981), the Yakima Nation has the authority to zone

fee lands within the reservation. While this issue is indeed

presented to the Court in this case, it is only part of the larger

question before this Court. That central question is which entity

has zoning and land use regulatory authority over fee lands within

an Indian reservation—the tribe or the city or county within

which the fee lands lie? In reviewing this case, the Court must

therefore look not only at the case law defining the extent to

which an Indian tribe may regulate non-Indians and fee land on

the reservation; it must also carefully consider the authorities

descnbing the permissible reach of state regulatory jurisdiction on

Indian reservations.”

> As CRIT’s own experience confirms, concurrent zoning or other

land use regulatory authority over fee lands is infeasible. To the extent

that the regulations imposed by the County and the tribe conflict. a

logjam would be created, and neither entity could effectively regulate

5

The scope of tribal authority over fee lands within Indian

reservations is defined by two parameters: inherent tribal sover-

eign powers and powers conferred or withdrawn by treaties and

other federal laws. Summarizing the nature of tribal sovereign

powers in United States v. Wheeler, 435 U.S. 313, 323 (1978),

this Court stated:

Indian tribes still possess those aspects of sovereignty not

withdrawn by treaty or statute, or by implication as a

necessary result of their dependent status.

Tribal sovereign powers are also commonly referred to as “the

right of reservation Indians to make their own laws and be ruled

by them.” Williams v. Lee, 358 U.S. 217, 220 (1959). See White

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 151

(1980); McClanahan v. Arizona State Tax Comm'n, 411 US.

164, 168-173 (1973).

The Court has emphasized that there is a “significant geo-

graphical component to tribal sovereignty... “The cases in this

Court have consistently guarded the authority of Indian govern-

ments over their reservations.””” White Mountain Apache, 448

U.S. at 151 (quoting Williams v. Lee, 358 U.S. at 223). Recently,

in lowa Mutual Ins. Co. v. LaPlante, 107 S.Ct. 971 (1987), the

Court took pains to point out that the attributes of sovereignty

retained by tribes extend throughout their territory to non-Indians

as well as Indians on the reservation. The Court stated, “Indian

tribes retain ‘attributes of sovereignty over both their members

and their territory.” 107 S.Ct. at 975, quoting United States v.

Mazurie, 419 U.S. 544, 557 (1975). In other words,

Because the Tribe retains all inherent attributes of sover-

eignty that have not been divested by the Federal Govern-

ment, the proper inference from silence...is that the

sovereign power... remains intact.

land use. See Section IV below. See also New Mexico v. Mescalero

Apache Tribe, 462 U.S. 324, 339 (1983) (concurrent state and tribal

jurisdiction “would effectively nullify the Tribe’s authority to control

hunting and fishing on the reservation” and “could severely hinder the

ability of the Tribe to conduct a sound management program”);

Segundo v. City Rancho Mirage, 518 F.2d 1387, 1393 (9th Cir. 1987).

6

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149, n.14 (1982)

(upholding tribe’s authority to impose a severance tax on oil and

gas production by non-Indians on reservation land).

The Court also discussed the nature of tribal sovereign powers

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

the Court reaffirmed that the inherent sovereign powers retained

by Indian tribes are those “necessary to protect tribal self-

government [and] to control internal relations.” 450 U.S. at 564.

In the context of regulation of non-Indians on fee lands in the

reservation, tribal sovereign powers include the power to regulate

non-Indian conduct “when that conduct threatens or has some

direct effect on the political integrity, the economic security, or

the health or welfare of the tribe,” or where a non-Indian has

entered a consensual relationship with the tribe or its members.

450 U.S. at 566.

To determine whether tribal powers have been conferred or

withdrawn by treaties or other federal laws, courts must scrutinize

the applicable treaties and laws in each case. Ambiguities in those

laws are to be resolved in favor of Indians “in order to comport

with these traditional notions of sovereignty and with the federal

policy of encouraging tribal independence.” White Mountain

Apache Tribe v. Bracker, 448 U.S. at 144. See McClanahan vy.

Arizona State Tax Comm'n, 411 U.S. at 174-75. As stated in

Felix S. Cohen's Handbook of Federal Indian Law (1982)

(hereinafter “Federal Indian Law”), at 221, 224-25:

Since congress is exercising a trust responsibility when deal-

ing with Indians, courts presume that Congress’ intent to-

ward them is benevolent and have developed canons of

construction that treaties and other federal action should

when possible be read as protecting Indian rights and in a

manner favorable to Indians.

[The canons] provide for a broad [statutory] construction

when the issue is whether Indian rights are reserved or

established, and for a narrow construction when Indian rights

are to be abrogated or limited.

——

7

The scope of state or local civil regulatory jurisdiction on an

Indian reservation is also determined by reference to inherent

tribal sovereign powers and federal law. There are two indepen-

dent but related barriers to assertion of state regulatory authority

over Indian country and tribal members. First, such exercise of

authority may be preempted by federal law. White Mountain

Apache Tribe v. Bracker, 448 U.S. at 142; New Mexico v.

Mescalero Apache Tribe, 462 U.S. 324 (1983). As the Court has

repeatedly emphasized, the preemption analysis used in determin-

ing jurisdiction over Indian reservations is strikingly different

from that used in other areas of the law:

Tribal reservations are not States, and the differences in the

form and nature of their sovereignty make it treacherous to

import to one notions of pre-emption that are properly

applied to the other. The tradition of Indian sovereignty over

the reservation and tribal members must inform the determi-

nation whether the exercise of state authority has been pre-

empted by operation of federal law.

White Mountain Apache, 448 U.S. at 143 (citing Moe v. Confed-

erated Salish & Kootenai Tribes, 425 U.S. 463, 475 (1976)).

The Court has found that the federal purposes of Indian

treaties and statutes are broadly preemptive of state law, and in

many circumstances has found state laws preempted based not on

specific preemptive language but rather on implications from

general purposes of federal treaties and statutes. See, e.g., Ramah

Navajo School Bd. v. Bureau of Revenue, 458 U.S. at 838; Fisher

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

As a general matter, state laws may be enforced against non-

Indians in Indian country only “up to the point where tribal self-

government would be affected.” McClanahan v. Arizona State

Tax Comm'n, 411 U.S. at 179. The Court has held state authority

over non-Indians acting on reservations to be preempted in a

number of cases even though Congress had made no express

statement on the subject. See New Mexico v. Mescalero Apache

Tribe, 462 U.S. 324 (1983); Ramah Navajo School Bd. v. Bureau

of Revenue, 458 U.S. 832 (1982); Central Machinery Co. v.

Arizona State Tax Comm'n, 448 U.S. 160 (1980); Kennerly v.

8

District Court of Montana, 400 U.S. 423 (1971); Warren Trading

Post Co. v. Arizona Tax Comm'n, 380 U.S. 685 (1965); Williams

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

Second, exercise of state authority within Indian country may

be an unlawful infringement on tribal sovereign authority. See

White Mountain Apache Tribe v. Bracker, 448 U.S. at 142, 151:

McClanahan v. Arizona State Tax Comm'n, 411 U.S. at 168-173;

Williams v. Lee, 358 U.S. at 220. In general, the Court has

emphasized that within the boundaries of “Indian country,” as

the term is defined in 18 U.S.C. section 1151, states have strictly

limited civil regulatory authority. As the Court stated in McClan-

ahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173 (1973),

quoting from United States v. Kagama, 118 U.S. 375, 381-82

(1886), Indian tribes have retained

‘a semi-independent position. . . not as States, not as na-

tions, not as possessed of the full attributes of sovereignty,

but as a separate people, with the power of regulating their

internal and social relations, and thus far not brought under

the laws of the Union or of the State within whose limits they

resided.”

In sum, whether the Court focuses on the permissible extent of

State authority on the reservation or the scope of tribal authority

over fee lands, and whether the Court couches its analysis under

the rubric of “preemption” or that of “inherent tribal sovereign

powers,” the factors to be analyzed remain the same. The Court

must determine whether the Yakima Nation, by virtue of treaty

or inherent powers, originally had the power to zone all lands in

the reservation, including the lands in question in this case. Then

the Court must review pertinent subsequent Congressional ac-

tions to determine the extent to which state authority is pre-

empted, or conversely, tribal authority has been diminished.

9

AT THE TIME THE YAKIMA RESERVATION WAS CRE-

ATED, THE TRIBE POSSESSED CIVIL REGULATORY

POWER THROUGHOUT ITS RESERVATION OVER

BOTH INDIANS AND NON-INDIANS

In the treaty between the tribes of the Yakima Indian Nation

and the United States which was signed in 1855 and ratified in

1869, 12 Stat. 951, the tribes ceded vast areas of land, at the same

time reserving an area for their “exclusive use and benefit.” The

treaty provided that no white man could reside on the reservation

without permission of the tribe. /d. Petitioners do not dispute that

this treaty conferred upon the Yakima tribe full authority to

govern use of the lands in the reservation and to control use of

those lands by both tribal members and non-Indians. Rather,

petitioners and their amici argue only that any authority which

the tribe had over non-Indians was subsequently removed by acts

of Congress and, most particularly, the Allotment Act of 1887.

That tribal sovereign power at the time the Yakima Reserva-

tion was created extended to the actions and use of land by non-

Indians on the reservativn is also clear. In the seminal case of

Worcester v. Georgia, 6 Pet. (31 U.S.) 515 (1832), holding that

the State of Georgia could not exercise jurisdiction over a non-

Indian on the Cherokee Reservation, Chief Justice Marshall

noted that Indian tribes retained broad inherent powers over their

territories:

The Indian nations had always been considered as distinct,

independent political communities retaining their original

natural rights, as the undisputed possessors of the soil, from

time immemorial, with the single exception of that imposed

by irresistible power.

As of the 1850’s and 60’s, tribal sovereign powers as described by

Chief Justice Marshall remained intact, as neither congressional

action nor judicial interpretation had placed any limits upon the

holding in Worcester v. Georgia. )

Thus, the Court must determine whether any subsequent

action of Congress stripped the Yakima tribe of its authority to

10

zone some of its lands. At the same time, relevant subsequent

congressional acts must be scrutinized to determine whether they

preempt, either expressly or by implication, state authority over

fee lands on the reservation.

FEDERAL ACTIONS SINCE THE CREATION OF THE

YAKIMA RESERVATION CONFIRM TRIBAL AUTHOR-

ITY TO ZONE FEE LANDS ON THE RESERVATION

AND PREEMPT ANY COUNTY AUTHORITY TO ZONE

SUCH LANDS

A. The General Allotment Act of 1887

Petitioners’ arguments in support of County zoning authority

over fee lands on the reservation rest largely on the General

Allotment Act of 1887, 24 Stat. 388, as amended, 25 U.S.C.

section 331 et seq. Indeed, petitioner Wilkinson acknowledges

that in the absence of this Act, “that former treaty right [to

exclude non-members from their reservation] might now serve as

authority for Tribal regulation of non-members’ use of fee land.”

Wilkinson Brief at 33. When Congress authorized the allotment

of plots of reservation land to individual Indians and the disposal

of “surplus” lands to non-Indians, petitioners argue, Congress

specifically intended that those non-Indian purchasers and their

fee lands should not be subject to tribal regulation. Since Con-

gress contemplated ultimate dissolution of Indian tribes and

assimilation of Indians into non-reservation life, they argue,

Congress could not have simultaneously intended that non-Indian

land purchasers remain subject to tribal regulatory authority.

Similar arguments have been rejected time and again in the

context of disestablishment cases that have come before this

Court. See, e.g., Solem v. Bartlett. 465 U.S. 463 (1984); Mattz v.

Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent, 368

U.S. 351 (1962). In each of those cases, it was argued that laws

passed by Congress pursuant to its Allotment Act policy of

allotting lands to individual Indians and selling surplus lands to

non-Indians were intended to and did terminate the reservation

status of the lands covered by the laws. The Court, however, has

ll

been unwilling to assume from the overall understanding of that

time that reservations would be terminated a specific desire of

Congress to terminate reservation (or “Indian country”’) status of

lands whenever they were opened up for sale to non-Indians.

Solem v. Bartlett, 465 U.S. at 468-472.

With respect to the General Allotment Act, this Court has

stated:

The Act did no more than open the way for non-Indian

settlers to own land on the reservation in a manner which the

Federal Government, acting as guardian and trustee for the

Indians, regarded as beneficial to the development of its

wards.

Seymour v. Superintendent, 368 U.S. at 356. See Mattz v.

Arnett, 412 U.S. at 496-7. The Court has emphasized that when

Congress truly intended an act not only to make Indian lands

available for sale to non-Indians but also to remove those Indian

lands from the reservation (and from tribal jurisdiction), it used

language that clearly and specifically indicated such an intent.

Mattz v. Arnett, 412 U.S. at 504.

The Court’s decision in Moe v. Confederated Salish & Kootenai

Tribes, 425 U.S. 463 (1976) is most instructive on this point.

There the state argued that it had taxing jurisdiction over Indians

on fee lands within the reservation because that was the intent of

the General Allotment Act. The Ccurt rejected this argument,

noting that the disestablishment cases had effectively disposed of

the issue. 425 U.S. at 478. The Court stated:

If the General Allotment Act itself establishes Montana’s

jurisdiction as to those Indians living on “fee patented”

lands, then for all jurisdictional purposes—civil and crimi-

nal—the Flathead Reservation has been substantially dimin-

ished in size. A similar claim was made by the State inp

Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7

L.Ed.2d 346 (1962), to which we responded:

“[The] argument rests upon the fact that where the

existence or nonexistence of an Indian reservation, and

therefore the existence or nonexistence of federal juris-

12

diction, depends upon the ownership of particular par-

cels of land, law enforcement officers Operating in the

area will find it necessary to search tract books in order

to determine whether criminal jurisdiction over each

particular offense, even though committed within the

reservation, is in the State or Federal Government.” Id.,

at 358, 82 S.Ct., at 428, 7 L.Ed.2d, at 351.

Congress by its more modern legislation has evinced a clear

intent to eschew any such “checkerboard” approach within

an existing Indian reservation, and our cases have in turn

followed Congress’ lead in this area.

425 U.S. at 478-79. The holding in Moe is on point. Congress did

not intend by the General Allotment Act to remove fee lands

from tribal jurisdiction, whether the fee lands were ultimately

held by Indians or non-Indians.

Petitioners propose to make the disestablishment issue a nullity

by establishing a new rule whereby fee lands on Indian reserva-

tions are not subject to tribal regulatory authority. Presumably

this is because under the congressional intent standard carefully

enunciated by this Court, the fee lands at issue clearly have not

been disestablished from the reservation. Thus, having lost the

disestablishment battle, petitioners Propose a new standard under

which lands not disestablished from a reservation may be treated

as if disestablished. Amicus CRIT contends to the contrary: the

jurisdictional question surrounding fee lands created pursuant to

allotment and surplus land acts is primarily a disestablishment

question which revolves around whether Congress intended to

remove those fee lands from the reservation.? The Court should

not at this late stage create a brand new status for fee lands within

Indian country which status entirely deprives Indian tribes of

their regulatory authority over such lands.

: Adhering to the Court’s traditional view that the principal jurisdic-

tional issue regarding fee lands is whether or not Congress intended that

they be disestablished from the reservation would have the additional

beneficial effect of reducing uncertainty and thereby reducing the need

for litigation to resolve jurisdictional questions.

13

Other authorities also contradict petitioners’ argument con-

cerning the General Allotment Act. The case most directly on

point is the 1905 case, Buster v. Wright, 135 Fed. 947. In this

case, the Eighth Circuit held that neither the establishment of

town sites within the Creek Nation territory nor the sale of lots

therein to non-Indians deprived the Creek Nation of jurisdiction

over those townsites or lots. The Court stated:

the jurisdiction to govern the inhabitants of a country is not

conditioned or limited by the title to the land which they

occupy in it, or by the existence of municipalities therein

endowed with power to collect taxes for city purposes, and to

enact and enforce municipal ordinances. Neither the United

States, nor any other sovereignty loses the power to govern

the people within its borders by the existence of towns and

cities therein endowed with the usual powers of its territonal

jurisdiction by citizens or foreigners.

i35 Fed. at 952.

t

This Court endorsed the same opinion in Morris v. Hitchcock,

194 U.S. 384, 392 (1904) (in upholding a tribal tax on livestock

owned by non-Indians, Court approves concept of tribal taxation

of hay grown on non-Indian fee lands in reservation). Two turn of

the century Attorney General opinions follow the same reasoning.

23 Ops. Atty. Gen. 214 (1900); 23 Ops. Atty. Gen. 528 (1901).

In considering the effect of an 1898 act providing for the organi-

zation of municipal corporations, the selection of town sites, and

the appraisal and sale of town lots to non-Indians within the

Creek Reservation, the Attorney General stated:

if the Indian title to the particular lots sold had been

extinguished, and conceding that the statute authorizes the

purchase of such lots by any outsider, and recognizes his

right to do so, the result is still the same, for the legal right to

purchase land within an Indian nation gives to the purchaser

no right of exemption from the laws of such nation, nor does

it authorize him to do any act in violation of the treaties with

such nation.

23 Ops. Atty. Gen. at 217.

14

B. The Indian Reorganization Act

By the Indian Reorganization Act of June 18, 1934 (48 Stat.

984), Congress repudiated the policy of allotment and sale of

Indian lands. 25 U.S.C. sections 461-475. The IRA stopped

further alienation of Indian lands, authorized the Secretary of

Interior to restore any remaining unsold surplus lands to tribal

ownership, and reconfirmed the continued existence of tribal

sovereign powers. /d. In addition to listing a number of specific

powers retained by Indian tribes, the Act affirmed that tribes have

“all powers vested in any tribe or tribal council by existing law.”

25 U.S.C. section 476.

Insofar as petitioners argue that Congress intended by the

General Allotment Act to terminate Indian reservations and tribal

jurisdiction, the IRA represents a total reversal of that policy. The

IRA was the first modern federal action enunciating the now

well-established policy favoring tribal self-determination. While

the IRA does not explicitly address the issue of tribal authority

over fee lands within a reservation, by reaffirming tribal powers in

Indian country and by ending allotment and sale of Indian lands it

strongly supports such authority.

That the “existing powers” referred to in the IRA include

authority over non-Indians and fee lands is demonstrated by 1934

Department of Interior Solicitor opinion discussing the nature of

such “existing powers.” 55 I.D. 14 (1934).4 The Solicitor’s

opinion finds that “existing powers” include the powers “to

regulate the use and disposition of all property within the jurisdic-

tion of the tribe,” and “to levy dues, fees, or taxes upon the

members of the tribe and upon nonmembers residing or doing any

business of any sort within the reservation.” Opinions of the

Solicitor, Department of the Interior, vol. 1 at 446.

Nothing in the Solicitor’s Opinion indicates that tribal “ex-

isting powers” do not extend to fee lands within the reservation.

*This opinion has been cited and relied upon by this Court. See

Washington v. Confederated Tribes of Colville Reservation, 447 U.S.

134, 153 (1980); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 174-

85 (1982).

15

Nevertheless, as described in the following section, even if there

was some confusion about tribal powers over fee lands as of 1934

because such lands were not considered “Indian country,” in 1948

Congress eliminated this uncertainty and mandated tribal author-

ity over such fee lands when it enacted a new definition of “Indian

country.”

C. The 1948 Enactment of a New Statutory Definition of

“Indian Country,” 18 U.S.C. Section 1151

A key statute that should guide the Court’s review of this case

is the federal definition of “Indian country,” 18 U.S.C. sec-

tion 1151, enacted in 1948. The term “Indian country” rather

than “reservation” has historically been the determining term for

jurisdictional purposes. See Federal Indian Law at 27-45. Prior to

1948, “Indian country” was not generally understood to include

lands not owned by an Indian tribe. The first statutory definition

of “Indian country,” contained in the 1834 Indian Trade and

Intercourse Act (4 Stat. 729) provided in pertinent part:

[A]ll that part of the United States west of the Mississippi,

and not within the states of Missouri and Louisiana, or the

territory of Arkansas, and, also, that part of the United States

east of the Mississippi river, and not within any state [,] to

which the Indian title has not been extinguished, for the

purposes of this act, be taken and deemed to be the Indian

country.

(Emphasis added. )

After this statute was omitted from the 1874 Revised Statutes

(R.S. section 5596, effective June 22, 1874), the definition of

“Indian country” was left to the courts. Decisions by this Court in

following years held that “Indian country” included land “law-

fully set apart as an Indian reservation,” Donnelly v. United

States, 228 U.S. 243 (1913), Pueblo Indian lands in New Mex-

ico, United States v. Sandoval, 231 U.S. 28 (1913), and trust

allotments, United States v. Pelican, 232 U.S. 442 (1914). The

Court stated that the test was whether the land in question “had

been validly set apart for the use of the Indians as such, under the

superintendence of the Government.” United States v. Sandoval,

16

23i U.S. at 449. See also United States v. McGowan, 302 U.S.

535 (1938).

Relying upon these decisions, in 1948 Congress codified the

definition of “Indian country.” See 18 U.S.C. section 1151 His-

torical and Revision Notes; Federal Indian Law at 34. Congress

also provided that fee lands within Indian reservations were

Indian country, thus changing the prior rule. Section 115! pro-

vides in pertinent part:

[T]he term “Indian country,” as used in this chapter, means

(a) all land within the limits of any Indian reservation under

the jurisdiction of the United States Government, notwith-

standing the issuance of any patent, ....

(Emphasis added. )

This Court has held that the term “Indian country” as defined

in section 1151 does not apply just to the criminal code sections in

that chapter, but “generally applies as well to questions of civil

jurisdiction,” DeCoteau v. District County Court, 420 U.S. 425,

427 n.2 (1975), and also to questions of tribal jurisdiction. Moe v.

Confederated Salish & Kootenai Tribes, 425 U.S. at 477-79. See

Federal Indian Law at 27 n.8, 28.

By defining “Indian country” to include fee lands within

reservation boundaries, Congress enunciated its clear intention

that fee lands and non-fee lands within the reservation be treated

alike for jurisdictional purposes. Whereas prior to 1948 the status

of fee lands within a reservation was in question, Congress in

enacting section 1151 intended to put a definitive end to those

questions by treating all land within the boundaries of an Indian

reservation as “Indian country.””*

* In light of the widespread pre-1948 belief that fee lands could not be

considered “Indian country,” it is to be expected that pre-1948 state-

ments on the issue might conclude that Indian tribes lacked jurisdiction

over fee lands. What is surprising is the extent to which such actions and

holdings reflect a persistent belief that Indian tribes did maintain

jurisdiction over fee lands. See, e.g., Morris v. Hitchcock, 194 U.S. 382:

Buster v. Wright, 135 Fed. 947; 55 1.D. 14; 23 Ops. Att’y Gen. 214; 23

Ops. Att’y Gen. 528.

17

Thus, even if tribal authority over fee lands on the reservation

were not already clear from prior treaties and statutes as well as

inherent tribal sovereign powers, it is certainly clear from the

enactment of section 1151. That section evinces a congressional

intent to preempt state authority over fee lands on reservations

and to confirm tribal and fec eral authority over such lands.

D. Post-1948 Enactments and Policy Statements

Notwithstanding petitioner Brendale’s arguments, this Court

has repeatedly held that Pub. L. 280, 67 Stat. 588, as amended,

18 U.S.C. section 1162, 28 U.S.C. section 1360, did not confer

upon states general civil regulatory jurisdiction over Indian reser-

vations. California v. Cabazon Band of Mission Indians, 107

S.Ct. 1083, 1087-88 (1987); Bryan v. Itasca County, 426 US.

373 (1976). Nor did Pub. L. 280 strip tribes of any of their

jurisdiction over their reservations. Thus, Pub. L. 280 is not

relevant to this case.

Other more recent federal enactments are relevant, however, in

demonstrating a consistent and pervasive federal policy encourag-

ing tribal self-government, self-determination and economic inde-

pendence. For example, the Indian Financing Act of 1974, 25

U.S.C. section 1451 et seq., states:

It is hereby declared to be the policy of Congress . . . to help

develop and utilize Indian resources, both physical and

human, to a point where the Indians will fully exercise

responsibility for the utilization and management of their

own resources and where they will enjoy a standard of living

from their own productive efforts comparable to that enjoyed

by non-Indians in neighboring communities.

Section 1451. Similar policies underlie the Indian Self-Determi-

nation and Education Assistance Act of 1975, 25 U.S.C. sec-

tion 450 et seq. The Indian Civil Rights Act of 1968, 25 U.S.C.

section 1301, et seq. also reflects the Congressional intent “to

promote the well-established federal ‘policy of furthering Indian

self-government.’ ” Santa Clara Pueblo v. Martinez, 436 U.S. 49,

62 (1978), quoting Morton v. Mancari, 417 U.S. 535, 551

(1974).

18

In addition, both President Nixon and President Reagan issued

policy statements strongly supporting Indian tribal self-govern-

ment. 6 Weekly Comp of Pres. Doc. 894, 899-900 (1970)

(Message of President Nixon); 19 Weekly Comp. Pres. Doc.

(Jan. 24, 1983) (Message of President Reagan). Cf. Gross,

Indian Self-Determination and Tribal Sovereignty: An Analysis

of Recent Federal Policy, 56 Texas L. Rev. 1195 (1978). Numer-

ous decisions of this Court have emphasized the importance of

this overriding federal policy of recent decades. See e.g., National

Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. at 856; New

Mexico v. Mescalero Apache Tribe, 462 U.S. at 332; Merrion vy.

Jicarilla Apache Tribe, 455 U.S. at 137, 138 n.5; Washington v.

Confederated Tribes of the Colville Indian Reservation, 447 U.S.

at 152; White Mountain Apache Tribe v. Bracker, 448 U.S. at

143-44 n.10.

These recent actions by both the legislative and the executive

branches evince a clear federal goal not only of promoting tribal

self-government and economic security, but also of fostering the

mechanisms and tribal authority necessary to achieve these goals.

The power to zone and to regulate land use within a political

entity’s jurisdiction is one of the most fundamental and essential

attributes of self-government. See section IV below.

Denial of tribal zoning authority over fee lands on the reserva-

tion would run totally contrary to the clear federal policy of

promoting tribal self-government. That federal policy, as set forth

in numerous statutes, presidential statements, and the statements

of this Court, requires a finding that state, county and city land

use regulatory authority over fee lands in Indian reservations is

preempted and tribal authority over such lands is exclusive.

19

IV

TRIBAL AUTHORITY TO ZONE AND REGULATE LAND

USE ON FEE LANDS WITHIN THE RESERVATION IS

ESSENTIAL TO THE POLITICAL INTEGRITY, ECO-

NOMIC SECURITY, HEALTH AND WELFARE OF THE

TRIBE

The parties agree that under the holding in Montana v. United

States, tribal authority over non-Indian conduct on fee lands

within the reservation is proper insofar as that conduct “threatens

or has some direct effect on the political integrity, the economic

security, or the health or welfare of the tribe.” 450 U.S. at 566.

Petitioners and their amici argue, however, that the Ninth Circuit

gave too much sweep to that language by finding it a proper basis

for Yakima tribal authority to zone fee lands within the reserva-

tion.® Petitioners apparently do not understand either the funda-

mental importance of the power to zone or the devastating

impacts upon Indian tribes that would result from depriving the

tribes of land use regulatory authority over fee lands sprinkled

throughout their reservations.

A. Importance of Tribal Zoning

Zoning is an exercise of police power, the power of government

to protect the public health, safety and welfare. Euclid v. Ambler

Realty Co., 272 U.S. 365, 387 (1927). The authority to plan and

zone—whether exercised by a county, a municipality, or an

° Petitioners argue that under Montana, Yakima County has authority

to zone fee lands within the reservation, regardless of ownership of those

lands. As respondent Yakima Nation points out, however, many of the

fee lands within the reservation are owned by individual tribal members

or by the tribe itself. The language in Montana relied upon by petitioners

relates only to non-Indian conduct on fee lands and thus cannot provide

any authority for County zoning of fee lands owned by the tribe or by

tribal members. Montana would, at most, provide the county zoning

authority over fee lands owned by non-Indians. Yet such a scheme

would require that the authorities keep track of both the fee or non-fee

status of parcels and the ownership of the fee parcels. As sales between

Indians and non-Indians occur, parcels would oscillate from one zoning

jurisdiction to another.

20

Indian tribe, is among the most important powers that a local

governing body possesses. As Justice Marshall stated, zoning

“may indeed be the most essential function performed by local

governments, for it is one of the primary means by which we

protect that sometimes difficult to define concept of quality of

life.” Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1973)

(Marshall, J., dissenting), quoted with approval in Young v.

American Mini Theaters, 427 U.S. 50, 80 (1976) (Powell, J.,

concurring).

The power to zone is particularly important to Indian tribes

because they possess unique historical, physical, and spiritual ties

to their lands. See Comment, Jurisdiction to Zone Indian Reser-

vations, 53 Wash. L. Rev. 677, 680 (1978). Justice Black dis-

cussed this historical connection in a case involving federal

eminent domain over ancestral Indian land:

It may be hard for us to understand why these Indians cling

so tenaciously to their lands and traditional tribal way of life.

The record does not leave the impression that the lands of

their reservation are the most fertile, the landscape the most

beautiful or their homes the most splendid specimens of

architecture. But this is their home—their ancestral home.

There, they, their children, and their forbears were born.

They, too have their memories and their loves.

F.P.C. v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960)

(Black, J., dissenting).

Similarly, in the First Amendment context, Justice Brennan

recently described the spiritual connection between Indians and

the land:

Native American faith is inextricably bound to the use. of

land. ... The site specific nature of Indian religious practice

derives from the Native American perception that land is

itself a sacred, living being.

Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S.Ct.

1319, 1331 (1988) (Brennan, J., dissenting). For Indians, “land

is not fungible.” 108 S.Ct. at 1331. Tribal governments use their

zoning power to nurture and protect fundamental Indian beliefs

21

about the appropriate uses of land. See Comment, Jurisdiction to

Zone Indian Reservations, 53 Wash. L. Rev. at 680; D. Suagee,

American Indian Religious Freedom and Cultural Resources

Management: Protecting Mother Earth’s Caretakers, 10 Ameri-

can Indian Law Review 1, 13 (1982).

The ability to regulate reservation lands is also essential to

tribal programs that promote the economic development of tribal

economy. As the Ninth Circuit stated in striking down a county’s

attempt to enforce its zoning and building code on tribal trust

lands, “tribal use and development of tribal trust property pres-

ently is one of the main vehicles for the economic self-develop-

ment necessary to equal Indian participation in American life.”

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

(9th Cir. 1975).

B. County Zoning of Fee Land Undermines and Is Incon-

sistent With Tribal Zoning Authority

Effective planning and zoning require the “systematic and

coordinated utilization of land” in a particular area. N. Williams,

American Land Planning Law, section 1.06 (1974). The planned

pattern “must be coherent and internally consistent; that is, the

various component parts must fit with each other” or “the result

will be a disorganized mess of patchy development.” Jd. at

section 1.07.

Petitioners in this case do not challenge tribal zoning authority

over trust lands. It is clear that tribal governments have full

authority to regulate land use on trust lands. Segundo v. City of

Rancho Mirage, 813 F.2d 1387, 1393 (9th Cir. 1987); lowa

Mutual Ins. Co. v. LaPlante, 107 S.Ct. at 975. Petitioners propose

a scheme whereby tribes have full regulatory authority over trust

lands in reservations but the county has authority over the fee

lands within the reservation. Such a regulatory scheme would

create a “crazy quilt” of checkerboard zoning throughout the

reservation, with the tribal zoning applying to one set of lands and

county zoning applying to the other. The checkerboard pattern is

apparent in the instant case: Whiteside’s property is bounded by

trust land to the north, and fee land to the south, east, and west.

Yakima Indian Nation v. Whiteside, 617 F.Supp. 750, 754 (E.D.

22

Wash. 1985). Other fee lands are “scattered throughout the

reservation in checkerboard fashion.” Tribes and Bands of

Yakima Indian Nation v. Whiteside, 826 F.2d 529, 531 (9th Cir.

1987).

This Court has repeatedly rejected similar proposed jurisdic-

tional divisions. See, e.g., Moe v. Confederated Salish & Kootenai

Tribes, 425 U.S. at 478 (rejecting scheme in which state sales tax

imposed on cigarette sales by Indians on fee lands but not Indian

on trust lands); Seymour v. Superintendent, 368 U.S. at 358

(rejecting similar jurisdictional division of state and federal crimi-

nal authority).

Furthermore, different land uses are often incompatible; the

very purpose of zoning is to segregate uses that are hostile to one

another. See, e.g, D. Mandelker, Land Use Law, section 1.03;

Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926): “[a]

nuisance may merely be the right thing in the wrong place—like a

pig in a parlor instead of the barnyard.” If an Indian tribe can only

designate the permissible uses of non-fee lots, then it cannot

ensure that uses on adjacent, nearby, or entirely encircled fee lots

are compatible with the tribal zoning uses. The tribe cannot

segregate incompatible conduct and activity on land; it cannot

effectively zone.

For example, if the tribe designates a given trust area for

agricultural use, but the county designates fee lots in that area for

residential use, then the tribal scheme becomes unworkable. The

use of pesticides, domestic pet interference with livestock and

agricultural operations, odors emanating from a farm, and other

such things make these two designations incompatible.

Similarly, if the tribe zones an area for low density residential

use, but the county zones fee lots sprinkled through the area for

high intensity office or industrial complexes, then the purpose and

effect of the tribe’s design is destroyed. See Euclid v. Ambler

Realty Co., 272 U.S. at 391 (noting health and safety dangers of

locating office buildings in a residential district). Or, if the tribe

desires a given area to remain as undisturbed as possible due to

the cultural or religious significance of the area or for other

reasons, then even one multi-story apartment complex on one fee

23

parcel, with its associated traffic, population and congestion, could

destroy that scheme entirely. See Knight v. Shoshone & Arapahoe

Indian Tribes, etc., 670 F.2d 900 (10th Cir. 1982) (non-Indian

owners of fee land proposed large residential subdivision near area

where traditional tribal ceremonies held, where tribal cemeteries

located, and where substantial other tribal activities took place;

court enjoined work on subdivision, finding tribe, not county, had

zoning authority); Jurisdiction to Zone Indian Reservations, 53

Wash. L. Rev. at 678 n.5.’

These conflicts have been live ones on the Colorado River

Indian Reservation. Both Parker and CRIT assert zoning and

land use regulatory authority over fee lands and Tribal trust lands

within Parker. The building and zoning laws applied by Parker

and CRIT are inconsistent in certain critical respects. For exam-

ple, whereas the Parker Town Code severely limits construction

with adobe masonry and prohibits construction of traditional

tribal dwellings, the CRIT Health & Safety Code allows safe

adobe construction and construction of traditional dwellings. The

Parker Town Code requires payment of substantial fees before

tribal members may construct owner-built structures and im-

provements, while the CRIT Health & Safety Code waives fees

for such owner-built construction.

The conflicts between Tribal and Parker land use and zoning

regulations have created problems for CRIT and its members.

Serious problems have arisen in connection with at least two

federally-funded housing projects initiated by the Colorado River

Indian Housing Authority within Parker due to this conflict.

7 Of course, adjacent governments often have conflicting land use

regulatory schemes. However, there are two critical differences between

intra-reservation tribal/county conflicts and adjacent jurisdiction “bor-

der” conflicts. The first is that fee lots are typically sprinkled in

checkerboard fashion throughout a reservation, whereas adjacent coun-

ties and cities merely share common borders. The second is that Indians

and whites often hold fundamentally different views about land. The

roots of these different views lie deep in the two cultures. As one author

explained, the Indian view stresses human's dependence on the natural

world, whereas the Christian view stresses mankind’s role of exercising

dominion over nature. V. Deloria, Jr., God is Red (1973) at 91-109, 249.

24

Many sites that the Housing Authority has found to be the most

suitable for the planned housing, and which are available for

residential use under relevant CRIT regulations, are not zoned

residentially by Parker and thus have not been able to be used for

Tribal housing. Application of Parker’s zoning has thus resulted in

use of inferior lots, delays and added costs, together with in-

creased risks of losing the federal funding for the projects.

Another result of regulation by both Parker and CRIT has been

that Tribal members, most of whom have extremely limited

income and assets, have been required to pay double fees and be

subject to dual inspections and administrative review.

These examples demonstrate that a jurisdictional scheme per-

mitting city or county land use regulation of fee lots on reserva-

tions would deprive Indian tribes of one of the most important

aspects of the power of self-government: the power to protect the

public health, safety and welfare. See Report on Federal, State.

and Tribal Jurisdiction, Final Report to the American Indian

Policy Review Commission (1976) (hereinafter “AJPRC Juris-

diction Report’) at 119 (“Application of State or local land-use

controls, directly or indirectly, have [sic] serious adverse effects

on the ability of reservation Indians to formulate and implement

comprehensive and beneficial development and protection of

Indian resources”). Specifically, Indian tribes would effectively

be denied the power to zone within their reservations. Although

zoning authority would only be expressly denied for fee lands, the

net result is that tribal authority to zone non-fee lands would be

rendered ineffectual and unworkable due to the lack of authority

over checkerboarded fee lands. Such a scheme would, therefore,

severely “threaten” and have a “direct effect” on “the political

integrity, the economic security, or the health or welfare of the

tribe.” 450 U.S. at 566.8

* The Court’s holding in Montaiia that hunting and fishing on fee land

would not imperil the tribe is inapplicable to this case. Allowing a

county to regulate hunting and fishing on fee lands does not undermine

or negate the power of the tribe to effectively regulate such activities

elsewhere on the reservation. In contrast, zoning by its very nature

demands uniformity and consistency for it to work at all. County/tribal

regulation of hunting and fishing is feasible: county/tribal zoning is not.

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25

Rather than eviscerate tribal authority, the Ninth Circuit

adopted the course amicus CRIT urges here—recognizing the

right of Indian tribes to zone all lands within the reservation.

C. The Zoning Scheme Urged By Petitioners Would En-

gender Other Unfair and Illogical Results

As noted by the parties and amici, a substantial portion of fee

lands are owned by Indians or Indian tribes. Petitioners’ argument

that the General Allotment Act eliminated tribal jurisdiction over

fee lands logically implies that counties now have jurisdiction over

all fee lots—whether held by Indians or non-Indians. See Brief of

County of Yakima at 33 (calling for “bright line” division

between fee lands (state jurisdiction) and trust lands (tribal

jurisdiction) ).”

Petitioner’s bright line rule would also divest tribal authority

over fee lands when the county has little interest in regulating the

fee lots and the tribe has great interest. For exampie, this

jurisdictional division would strip the Yakima Indian Nation of

jurisdiction over the 25,000 acres of fee lots located in the “closed

area” of the reservation.

Although petitioners deride the balancing test described by the

Ninth Circuit in this case, the rule they propose as an alternative

is illogical and contrary to both tribal and non-Indian interests. In

CRIT’s view, the Ninth Circuit’s test is workable; it is certainly

no more difficult to apply than other balancing tests applied by

the courts under First Amendment, Commerce Clause, or Equal

Protection jurisprudence."°

* This argument for exclusive county jurisdiction is flatly inconsistent

with petitioners’ other argument—that tribes should be stripped of

zoning authority over fee lands because non-members have no political

influence over tribal decisions. The “no representation/no regulation”

argument would seem to concede that tribes should at least exercise

jurisdiction over fee lots owned by tribal members.

'° Given the complexities of the jurisdictional conflicts on Indian

reservations, neither Indian tribes nor cities, counties or states can

expect the Court’s decision in this or other cases to bring a final

resolution to all of these jurisdiction-related problems. Ultimately,

26

The Ninth Circuit has correctly held that as a general rule,

tribes have the authority to zone fee lands under the second

exception of Montana. That presumption may, however, be over-

come under certain limited circumstances where tribal interesis

are obviously de minimis, such as where a tribe has explicitly

renounced any regulatory interest in the fee lands. Such a rule is

consistent with Montana, with other decisions by this Court, and

with congressional enactments on the subject.

Vv

IF REMEDIES FOR ALLEGED VIOLATIONS OF CIVIL

RIGHTS OF NON-INDIANS ON FEE LANDS IN INDIAN

RESERVATIONS ARE INADEQUATE, THE PROPER

SOLUTION IS CONGRESSIONAL ACTION, NOT JUDI-

CIAL REVAMPING OF THE FUNDAMENTAL PRE-

CEPTS OF INDIAN LAW

A recurrent theme raised by petitioners and their amici, echo-

ing arguments that have been repeated time and again over

the years in relation to non-Indians on Indian reservations, is that

Indian tribes can have no authority over non-Indians because

effective solutions which take into account the unique facts of each

situation can only be found with the diligent efforts of each of the

governmental entities involved and of their constituents. One such

solution which CRIT and others have found effective and workable is

that of intergovernmental agreements.

CRIT has entered into intergovernmental agreements with the

Town of Parker for sewage disposal and fire protection and is negotiating

fire protection agreements with Riverside and San Bernardino Counties.

CRIT also has an intergovernmental agreement with La Paz County for

solid waste disposal as well as various intergovernmental agreements

with the State of Arizona for the administration of education, social

welfare and vocational programs. While the legal authority for each type

of agreement must be addressed on a case by case basis, tribes and local

governments have entered into such agreements in areas ranging from

law enforcement to child welfare. See Federal Indian Law at 380-81. In

those situations where full implementation of an intergovernmental

agreement requires a specific grant of jurisdictional authority, the

agreement can be submitted to Congress for ratification.

—

27

non-Indians have no voice in tribal government. In addition, non-

Indians argue, there is limited judicial recourse available to them

for alleged civil rights violations because under the doctrine of

tribal sovereign immunity they may file legal proceedings against

a tribe only where the tribe has expressly consented to suit. See

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

same argument has been made to this Court in virtually every

case involving exercise of tribal authority over non-Indians. See,

e.g., National Farmers Union Ins. Co. v. Crow Tribe, 105 S.Ct. 7

(1985) (Rehnquist, J., granting stay); Merrion v. Jicarilla

Apache Tribe, 455 U.S. 130, 183 (Stevens, J., dissenting opin-

ion); United States v. Mazurie, 419 U.S. 544, 557-58 (1975). See

also AIPRC Jurisdiction Report at 96-98 (1976).

This Court in United States v. Mazurie, 419 U.S. at 557-58,

quoting Williams v. Lee, 358 U.S. at 223, answered the point

definitively:

It is immaterial that respondent is not an Indian. He was on

the Reservation and the transaction with an Indian took

place there. The cases in this Court have consistently

guarded the authority of Indian governments over their

reservations. Congress recognized this authority in the

Navajos in the Treaty of 1868, and has done so ever since. If

this power is to be taken away from them, it is for Congress

to do it. Lone Wolf v. Hitchcock, 187 U.S. 553, 564-566, 23

S.Ct. 216, 220-221, 47 L.Ed. 299.

Precisely the same point was made by the American Indian

Policy Review Commission which reviewed the issue of exercise

of tribal jurisdiction over non-Indians on reservations. The Com-

mission concluded:

non-Indians which make up the vast majority of nonmem-

bers on reservations, are the beneficiaries of the policies

passed by Congress which placed such lands in their hands.

Any notion that Indian people received adequate compensa-

tion for those lands does not require refutation here. If

nonmembers are in a position of loss of property without due

process of law, then they must look at the body which

occasioned that loss—the United States Congress.

28

Remedies available to nonmember fee patent owners

should not come at the expense of tribal entities which were

subjected to such policies without their consent and, often,

over their objections. Such limitations may have the effect of

stifling the very forward movements so long promised and so

long sought after by Indian people and tribal governments.

AIPRC Jurisdiction Report at 118. Addressing the issues raised in

this case, the Commission recommended that tribal regulation of

land use within reservation boundaries should preempt any State

or local control over both trust and fee patent lands where such

tribal regulation is in furtherance of a scheme to develop or

protect reservation land or resources. AJPRC Jurisdiction Report

at 119.

The issue of the conflicts between the expectations of Indian

tribes and those of non-Indian settlers is described at length in the

recent book American Indians, Time, and the Law (1987), by

indian law scholar Charles Wilkinson, at 22-23, 111-119. Like

this Court in United States v. Mazurie, 419 U.S. at 557-58 and

Williams v. Lee, 358 U.S. at 223, and like the American Indian

Policy Review Commission, Wilkinson concludes that it is up to

Congress, not the courts to address the concerns raised by non-

Indians on reservations:

The settled principles of preconstitutional and extraconsti-

tutional tribal status, coupled with the promise of a viable,

evolving separatism in the treaties and treaty substitutes,

justify race-based tribal governments without political repre-

sentation by nonmembers. The courts should respect these

precepts and provide latitude to tribes by generously constru-

ing tribal powers over nonmembers. Congress, not the courts,

should make alterations based on expediency.

** *

A continuing theme of the modern opinions is for the Court

to affirm the existence of Indian rights, with the caveat that

Congress can make adjustments pursuant to its power over

Indian affairs.

* * *

[J Judicial opinions in Indian law usually involve just one

tribe but apply generically to all tribes. Thus if a court is

29

influenced by an individual flagrant abuse and departs from

principle to deny tribal powers, the rights of all tribes are

implicated. .. Whether abuses exist and, if they do, whether

they are sufficiently serious to warrant curtailing tribal pow-

ers are matters that Congress is best equipped to resolve. A

legislature is not bound by the facts of just one case.

Congress has investigative and oversight powers designed to

produce a comprehensive record. Institutionally, the courts

are best suited to the judiciary’s traditional role of holding

firmly to historic principles that are protective of tribal

prerogatives.

American Indians, Time, and the Law, at 117-18.

As Wilkinson also points out, non-Indians on reservations are

not totally without recourse as petitioners and their amici imply.

Id. at 114. Where, for example, tribai officials are acting outside

the scope of their official authority, judicial relief may be availa-

ble. See, e.g., Puyallup Tribe, Inc. v. Department of Game, 433

U.S. 165, 170-71 (1977). Also, non-Indians may pursue offset-

ting claims when they are sued by Indian tribes. See California

State Board of Equalization v. Chemehuevi Indian Tribe, 106

S.Ct. 289 (1985). In addition, this Court’s decision in National

Farmers Union Ins. Co. v. Crow Tribe permits a non-Indian, after

exhausting tribal court remedies, to obtain a federal court deter-

mination of whether the tribe has jurisdiction.

Finally, various amici claim that Indian tribes are more likely

to abuse their zoning power than are cities and counties, as a

result of tribes’ desires to promote tribal enterprises. The potential

for such abuses is, however, no greater with respect to Indian

tribes than it is for cities and counties. More and more, cities and

counties also are owners of some of the lands which they iegulate.

Like tribes, cities and counties promote projects on their lands to

provide much-needed income. Insofar as there is a risk that a

zoning authority will favor its own lands, the risk exists for all

governmental entities that both zone and own land within their

jurisdiction.

30

CONCLUSION

The language in Montana v. United States, 450 U.S. 544

(1981) concerning tribal powers over non-Indians on fee lands in

a reservation can best be understood in light of this Court’s prior

holdings concerning tribal sovereign powers and limited state

jurisdiction on reservations. A review of the applicable case law,

as well as all pertinent congressional enactments relating to fee

lands on reservations demonstrates that the Montana language

cannot be given the constricted interpretation urged by petition-

ers. To the contrary, the instant case presents a perfect example of

the type of case that falls squarely within reach of the Montana

language, as zoning of fee lands on the Yakima Reservation

clearly “threatens or has some direct effect on the political

integrity, economic secuirty, or the health and welfare of the

tribe.” 450 U.S. at 566.

As described above, the right to zone a// lands within an Indian

reservation, both fee lands and trust lands, is critical to Indian

tribes’ right of self-governance. Unlike the hunting and fishing

rights at issue in Montana, it is impossible and improper to

attempt to place zoning authority over fee lands with one govern-

mental entity and zoning authority over non-fee lands with

another. Insofar as non-Indians residing or owning fee lands on

Indian reservations have legitimate complaints of violations of

their rights for which they can find no remedy, it is up to

Congress, not this Court, to solve that problem.

For all the reasons stated herein, amicus curiae Colorado River

Indian Tribes urges the Court to affirm the decision of the Ninth

Circuit in this case.

Dated: November 4, 1988

Respectfully submitted,

WILLIAM G. LAVELL ALLETTA D’A. BELIN*

Tribal Attorney KENNETH L. KiIMMELL

FAIN P. GILDEA SHUTE, MIHALY & WEINBERGER

Associate Tribal Attorney 310 McKenzie Street

JOHN C. SCHUMACHER Post Office Box 2768

Associate Tribal Attorney Santa Fe, NM 87504-2768

COLORADO RIVER INDIAN TRIBES Telephone: 505-988-8938

Route |, Box 23-B

Parker, AZ 85344

Telephone: 602-669-5271 * Counsel of Record

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