Undermining Tribal Land Use Regulatory Authority: Brendale v. Confederated Tribes

• Publication year: 1989

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 13, No. 2WINTER 1990

NOTE

Undermining Tribal Land Use Regulatory Authority: Brendale v. Confederated Tribes

I. Introduction

The Allotment Act of 1887 diminished tribal regulatory authority over Indian reservation land use.(fn1) While the Act provided for alienation of reservation land to non-Indians, it did not terminate the reservation status of alienated land.(fn2) Hence, a question which repeatedly arises is whether Indians can control land use on non-Indian owned reservation land.

In a recent case, the United States Supreme Court held that Indians maintain their power to control non-Indian owned reservation land use only to the extent that Indians exercise their power to exclude non-Indians from reservations.(fn3) In so holding, the Court precluded Indians from controlling land use on non-Indian owned reservation land.

The Court's decision has a major effect on tribal authority because the power to control land use, including the power to zone land for different uses, is an essential power of local government.(fn4) Like state and local governments, tribal governments have enacted comprehensive zoning laws to control development and to ensure consistency in reservation land use. By depriving Indians of their sovereign authority to zone all reservation land, the Supreme Court severely hampered tribal efforts to implement comprehensive land use regulation.

This Note traces the historical basis of Indian regulatory authority over non-Indians, examines the Supreme Court's latest decision in Brendale, and then exposes the weaknesses of that decision.

II. Tribal Regulatory Authority on Reservations Before Brendale

A. Land Use Control Generally

All discussions of land use in the United States must begin with the Supreme Court's landmark Euclid decision.(fn5) In 1922, the village council of Euclid, Ohio adopted a comprehensive zoning ordinance segregating land use into roughly three categories: residential, commercial, and industrial. Under the ordinance, industries could only develop land zoned for industrial use; commercial businesses could only locate on land zoned for commercial use; and residences could only be built on land zoned for residential use.(fn6) By restricting different land uses to separate districts, the village council's objective was to control development "within definitely fixed lines."(fn7) While controlled and ordered development seemed laudable, not everyone in Euclid agreed with the way the council drew the lines.

In a lawsuit which eventually reached the United States Supreme Court, a realty company in Euclid challenged the constitutionality of an ordinance restricting it from developing its residentially zoned land for industrial use. The Ambler Realty Company asserted that the ordinance was unconstitutional because it deprived the company of liberty and property without due process-a direct violation of the fourteenth amendment.(fn8) The Court upheld the constitutionality of the ordinance because it was not capricious or arbitrary; rather, it was a proper exercise of the police power to protect public health, safety, morals, and general welfare.(fn9) The ordinance was not an arbitrary restriction on an individual landowner's property rights because it comprehensively regulated village land use for the general welfare of all village members.

Euclid therefore established that land use restrictions imposed by local governments will be upheld if they comprehensively regulate the land for the health, safety, morals, and general welfare of its residents. Simply put, land use controls must be developed pursuant to some comprehensive plan for the public welfare.(fn10) Permitting individual landowners to develop and use their land however they wish opens the door to conflicting neighboring land uses, chaos, and confusion.(fn11) It is this random and uncontrolled development that threatens the public welfare.(fn12)

Pursuant to state zoning enabling legislation, local governments enact zoning laws to control development. As Euclid demonstrates, zoning is the primary means by which local authorities restrict various uses to certain districts to achieve comprehensive land use control.(fn13) Comprehensive zoning provides at least four specific benefits: (1) it permits local government to assess how different land uses interrelate; (2) it provides a single authority to consider a locality's need for public facilities; (3) it allows local government to make sound land use decisions in light of dwindling natural resources; and (4) it permits local government to assess the needs of all landowners concerned.(fn14)

B. Land Use Control on the Reservation

Tribal governments have enacted zoning laws to control reservation land use.(fn15) As described below, the tribal regulatory authority over reservation land use has been grounded on Indian sovereignty.

In 1763, King George of Great Britain proclaimed that the King held title to all North American Indian land "discovered" by British subjects, but that Indians retained the right to occupy and use such land.(fn16) Partly on the basis of this proclamation, the United States Supreme Court's position in 1832 was that "Indian nations [are] distinct political communities, having territorial boundaries, within which their authority is exclusive."(fn17) The Court, in effect, acknowledged the sovereignty of Indians over tribal land.

Sovereignty is "the unrestricted right of groups of people to organize themselves in political, social and cultural patterns that meet their needs."(fn18) Moreover, sovereignty includes the right of people to determine how land is to be used for the common good.(fn19) Sovereignty gives rise to the "power" or "authority" to establish a government and to exercise powers of self-government, including the power to regulate land use.(fn20) Given their sovereignty, Indians should possess regulatory authority over reservation land use.

Brendale, however, dramatically changed the relationship between states and sovereign tribes. States are no longer preempted from asserting their authority over tribal relations with non-Indians. The traditional view concerning the application of state law to reservation activities was established in Worcester v. Georgia in which the United States Supreme Court held that Georgia State law was inapplicable to Cherokee Indian Nation trust lands.(fn21) The basis for the Court's decision was the early federal view that Indians were sovereign as to the states, but dependent upon the federal government.(fn22) One year before Worcester, Chief Justice John Marshall stated that an Indian nation's "relation to the United States resembles that of a ward to his guardian."(fn23) Over a century later, in Williams v. Lee, the Supreme Court affirmed its earlier view.(fn24) Citing Worcester, the Court held that, absent a congressional act conferring state power over Indian affairs, state courts lacked jurisdiction over such affairs.(fn25)

Acting substantially like local governments, tribes have exercised their fundamental right to zone reservations. For example, the Yakima Indian Nation has enacted a zoning code for the Yakima Indian Reservation.(fn26) Because reservation landowners include non-Indian, nonmember Indian,(fn27) and Indian landowners, reservations have a "checkerboard" appearance with both non-Indians and Indians dispersed throughout. The checkerboard appearance of reservations resulted from two federal acts: the General Allotment Act of 1887 (Dawes Act)(fn28) and the Indian Reorganization Act of 1934 (Wheeler-Howard Act).(fn29)

The Dawes Act attempted to achieve Indian assimilation by parceling out reservation lands to Indian families. Lawmakers believed that it would be beneficial to Indians to eventually disintegrate the reservations and assimilate the tribes into the United States "melting pot."(fn30) Yet, once alloted lands became freely transferable, Indians sold reservation lands to non-Indians resulting in the loss of nearly ninety million acres previously held by Indians in 1887.(fn31) In 1934, the Wheeler-Howard Act abolished allotment to preserve what was left of the diminished reservations. Thus, federal policy toward Indians completely reversed. However, while the Wheeler-Howard Act prohibited future allotment of Indian land, it provided no solution for the damage that had already occurred.

When the Dawes Act made Indian land transferable, much of it was sold to non-Indians. It is this concurrent ownership of reservation land by Indians and non-Indians that is at the heart of many conflicts between Indian law and state law. The conflict between Indian and state zoning laws is the issue that the Supreme Court dealt with in Brendale.(fn32) Conflicts arise from checkerboard zoning, where both state and tribal zoning laws control reservation land use. For example, a state and a tribe may impose different zoning laws upon the same parcel of non-Indian reservation fee .land. This concurrent exercise of zoning laws not only precipitates conflict between incompatible state and tribal zoning laws, but it also precludes either the county or the tribe from obtaining the benefits of comprehensive reservation land use regulation. Unless tribes and states enact compatible zoning laws, or devise cooperative zoning schemes, land use on reservations will not follow any...