Civil Regulatory Jurisdiction Over Fee Simple Tribal Lands: Why Congress Is Not Acting Trustworthy

• Jurisdiction: United States,Federal
• Citation: Vol. 27 No. 03
• Publication year: 2004

SEATTLE UNIVERSITY LAW REVIEWVolume 27, No. 4SPRING 2004

Civil Regulatory Jurisdiction over Fee Simple Tribal Lands: Why Congress Is Not Acting Trustworthy

Yvonne Mattson(fn*)

I. the problem: confusion over sovereignty in Indian Country

The reservation is home. It is a place where the land lives and stalks people; a place where the land looks after people and makes them live right; a place where the earth provides solace and nurture. Yet, paradoxically, it is also a place where the land has been wounded; a place where the sacred hoop has been broken .... And this painful truth also stalks the people and their Mother.(fn1)

Indian(fn2) law is an important area of the law. In the last decade, the American Indian population has increased by 17.9 percent, bringing the total American Indian and Alaska Native population to 2.47 million.(fn3) Nearly half of these Indians live on or near Indian reservations, with reservation land covering over 55 million acres of land in the United States.(fn4) The United States recognizes over 560 Indian tribes,(fn5) and of all the states, Washington State has the fifth largest Indian population.(fn6)

Throughout the 55 million acres of reservation lands, a troubling problem exists for tribes and their governments: Reservation lands are often subject to conflicting zoning regulations of both the tribal governments and the state and county governments. Imagine buying a piece of property and discovering that your next door neighbor is subject to different zoning laws than to which you are subject, merely because that neighbor is of a different ethnicity. Imagine that you have strong cultural and religious ties to your land and that your neighbor's land use regulations insults your culture.(fn7) As will be discussed, current tribal civil regulatory jurisprudence perpetuates this common and unfortunate scenario within Indian reservations.

Although one might argue that many individuals are subject to multiple zoning laws, Indian reservations should not be subject to state or county zoning laws because Indians have cultural and religious ties to their lands for which States neither understand nor account. "Land is basic to Indian people: they are a part of it and it is part of them; it is their Mother."(fn8) Unlike European cultures, the Indian people chose to cherish their reservation land in its natural state rather than to develop and use the land.(fn9) The Indian people "[need] the land and each other too much to permit wanton accumulation and ecological impairment to the living source of nourishment."(fn10) This concept of marriage to the land and preservation of the land above prosperity is "antithetical to European history and culture."(fn11) Unlike individuals in the average urban or even rural community, Indians on reservations have strong cultural and religious ties to their land.(fn12) Because of these ties, Indian reservations represent more than land.(fn13) In fact, these cultural and religious ties to the land make the issue of civil regulatory jurisdiction even more crucial. Without the power to zone, tribal governments are stripped of their ability to define a reservation's essential characters based on their cultural and religious ties.(fn14)

As recently as 2002, one scholar considered it settled law that "an Indian tribe, unless limited by Congress, may exercise the full range of its civil jurisdiction over tribal members within the reservation."(fn15) Even this assertion has been called into question by recent litigation.(fn16) Regardless, current law does not remedy the broader issue: Whether all counties and states are precluded from asserting land use and zoning regulations over fee simple tribal lands owned by non-tribal members. This broader issue must be addressed; Indian reservations are currently located in thirty-five states(fn17) and continue to advance economically through the establishment of non-member business locations within the reservation.(fn18)

Our society and the court system have struggled with the concept of tribal sovereignty since its conception.(fn19) This struggle is exemplified by congressional statutes passed with divergent purposes and by plurality court decisions.(fn20) Neither congressional statutes nor court opinions accurately or consistently define the concept of tribal sovereignty to yield the required result that tribes should have exclusive zoning jurisdiction over tribal lands owned by both members and nonmembers.(fn21) Because courts are restricted to hearing only cases or controversies,(fn22) the holdings are often not broad enough to resolve the overriding conflict.(fn23) These holdings have shaken and lost tribal sovereignty principles along the way;(fn24) it is imperative that the U.S. Congress, using its trust relationship with Indian tribes, clarify the law of tribal zoning jurisprudence.

The appropriate remedy must come from the U.S. Congress, which has a self-imposed trust relationship with Indian tribes.(fn25) Congress should enact a statute that expressly provides that tribal governments have exclusive zoning jurisdiction over fee simple reservation lands located within the exterior boundaries(fn26) of the reservation. The jurisdiction should extend to reservation lands owned by both tribal members and nonmembers, provided that the zoning regulations are applied equally to both member and nonmember landowners. Congress must clarify that this jurisdiction is to be exercised exclusively by the tribe, subject to limitations by the federal government, but not exercised concurrently with county or state jurisdiction. One caveat must be made explicit in the statute: If a tribe does not assert its authority to regulate the zoning of its fee simple lands, that power will vest in the state. It is imperative that Congress address this issue at the national level because federally recognized tribes are in thirty-five states.(fn27)

The U.S. Congress used its trust powers to implement the solution proposed by this Comment in other problematic areas of tribal law.(fn28) For instance, Congress has used its trust power to pass the Indian Child Welfare Act (ICWA), declaring what was in the best interest of Indian tribes.(fn29) In enacting the ICWA, the U.S. Congress recognized that it has a special relationship with Indian tribes and that it has a special responsibility to the Indian people.(fn30) The congressional findings portion of the ICWA state: (1) that clause 3, section 8, article I of the United States Constitution provides that "The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes" and, through this and other constitutional authority, Congress has plenary power over Indian affairs; (2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources; (3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe; (4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and (5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.(fn31)

Similar to the recognitions made in sections 1 and 2 of the ICWA, Congress must pass another statute explicitly recognizing its plenary power over Indians and its responsibility to protect Indian tribes and their resources. Further, just as ICWA sections 3 and 4 assert that protecting Indian children is vital to the tribe, protecting a tribe's right to zone reservation lands is vital to the integrity of Indian tribes. Finally, as ICWA section 5 points out, states are once again failing to recognize the "essential tribal relations of Indian people" and the prevailing cultural and religious importance that reservation lands have to tribal people.(fn32) Congress should resolve the current zoning jurisdiction problem in the precise manner it resolved the child welfare problem-by passing a statute. Congress should declare that tribes have exclusive zoning jurisdiction over fee simple tribal lands within the exterior boundaries of the reservation, without regard to whether the land is owned by tribal members or nonmembers.

In addition to using its trust power to pass statutes, the proposed statute would not be the first time that Congress has given tribes the authority to regulate its environment. For example, Congress, in passing the Clean Water Act (CWA),(fn33) the Safe Drinking Water Act (SDWA),(fn34) and the Clean Air Act (CAA),(fn35) gave the Environmental Protection Agency (EPA) the power to treat tribes as states,(fn36) provided that the tribe is federally recognized and has an internal governing body in place that has the authority to pass regulations affecting...