Chapter § 5.6 Tribal Governmental Regulatory Powers, Including Health Regulation, Zoning, and Land Use Regulation

• Jurisdiction: Washington

§5.6 TRIBAL GOVERNMENTAL REGULATORY POWERS, INCLUDING HEALTH REGULATION, ZONING, AND LAND USE REGULATION, WITHIN INDIAN COUNTRY

In certain circumstances, the owner of fee property (as well as owners of trust land) within the boundaries of an Indian reservation may be subject to the police power of the tribal government, including health, zoning, and land use regulation. In other circumstances, the state may have authority. Regulation of land use involves not only the nature of the land but also the nature of the activity, regardless of whether preemptive federal or tribal law applies, and also may depend on whether the individual whose behavior is sought to be regulated is a member of the tribe.

The full nature and scope of the tribe's authority involves complex questions of jurisdiction, far beyond the scope of this chapter. Moreover, the issue of the tribe's authority is often tied to the question of whether the state has authority. For general purposes, however, it should be noted that the tribal government may have, at the very least, concurrent jurisdiction to regulate land use.

The question of tribal jurisdiction over real property held in fee by non-Indians generally involves examining whether there is a tribal interest sufficient to justify tribal regulation.

In Montana v. United States, 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981), the Court held that "Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands." Id. at 565. As to possible regulatory authority over non-Indians on fee lands within the reservation, the Court held:

A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

Id. at 565-66 (citations omitted).

The most recent United States Supreme Court pronouncement on the specific issue of zoning is Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 109 S. Ct. 2994, 106 L. Ed. 2d 343 (1989). At issue in Brendale were incompatible zoning...