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U.S. Supreme Court

Brendale v. Confederated Tribes, 492 U.S. 408 (1989)

Brendale v. Confederated Tribes & Bands of Yakima Indian Nation

No. 87-1622

Argued January 10, 1989

Decided June 29, 1989*

492 U.S. 408


The treaty between the United States and the Yakima Indian Nation (Yakima Nation or Tribe) provided that the Tribe would retain its reservation for its "exclusive use and benefit," and that "no white man [shall] be permitted to reside upon the said reservation without [the Tribe's] permission." Much of the reservation is located in Yakima County, Washington. Roughly 80 of the reservation land is held in trust by the United States for the Tribe or its individual members, and the remaining 20 is owned in fee by Indian or non-Indian owners. Most of the fee land is found in three towns, and the rest is scattered throughout the reservation in a "checkerboard" pattern. The reservation is divided into two parts: a "closed area," which is so named because it has been closed to the general public, and an "open area," which is not so restricted. Only a small portion of the closed area consists of fee land, while almost half of the open area is fee land. The Tribe's zoning ordinance applies to all lands within the reservation, including fee lands owned by Indians or non-Indians, while the county's zoning ordinance applies to all lands within its boundaries, except for Indian trust lands. Petitioners Brendale and Wilkinson (hereinafter petitioners), who own land in the closed and open areas respectively, filed applications with the Yakima County Planning Department to develop their lands in ways not permitted by the Tribe's ordinance but permitted by the county ordinance. The department issued declarations to both petitioners which, in effect, authorized their developments, and the Tribe appealed the declarations to the county board of commissioners on the ground, inter alia, that the county had no zoning authority over the land in question. After the board concluded that the appeals were properly before it and issued decisions, the Tribe filed separate actions in District Court challenging the proposed developments and seeking declaratory judgments that the Tribe had exclusive

Page 492 U. S. 409

authority to zone the properties at issue and injunctions barring any county action inconsistent with the Tribe's ordinance. The court held that the Tribe had exclusive jurisdiction over the Brendale property but lacked authority over the Wilkinson property, concluding that Brendale's proposed development, but not Wilkinson's, posed a threat to the Tribe's political integrity, economic security, and health and welfare, and therefore was impermissible under Montana v. United States, 450 U. S. 544. The court also determined that the county was preempted from exercising concurrent zoning authority over closed area lands because its interests in regulating those lands were minimal, while the Tribe's were substantial. The Court of Appeals consolidated the cases and affirmed as to the Brendale property but reversed as to the Wilkinson property. In upholding the Tribe's zoning authority, the court concluded that, because fee land is located throughout the reservation in a checkerboard pattern, denying the Tribe its right under its local governmental police power to zone fee land would destroy its capacity to engage in comprehensive planning.

Held: The judgment is affirmed in part and reversed in part.

828 F.2d 529: No. 87-1622, affirmed; Nos. 87-1697 and 87-1711, reversed.

JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, announced the judgment of the Court in Nos. 87-1697 and 87-1711, concluding that:

1. The Tribe does not have authority to zone fee lands owned by nonmembers within the reservation. Pp. 492 U. S. 421-433.

(a) Any regulatory power the Tribe might have under its treaty with the United States cannot apply to lands held in fee by non-Indians. Montana, 450 U.S. at 450 U. S. 559. The Tribe no longer retains the "exclusive use and benefit" of such lands within the meaning of the treaty, since the Indian General Allotment Act allotted significant portions of the reservation, including the lands at issue, to individual members of the Tribe, and those lands subsequently passed, through sale or inheritance, to nonmembers such as petitioners. The Tribe's treaty rights must be read in light of those subsequent alienations, it being unlikely that Congress intended to subject non-Indian purchasers to tribal jurisdiction when an avowed purpose of the allotment policy was to destroy tribal government. Id. at 450 U. S. 560, n. 9, 450 U. S. 561. The fact that the Allotment Act was repudiated in 1934 by the Indian Reorganization Act is irrelevant, since the latter Act did not restore exclusive use of the lands in question to the Tribe. Id. at 450 U. S. 560, n. 9. Pp. 492 U. S. 422-425.

(b) Nor does the Tribe derive authority from its inherent sovereignty to impose its zoning ordinance on petitioners' lands. Such sovereignty generally extends only to what is necessary to protect tribal self-government

Page 492 U. S. 410

or to control internal relations, and is divested to the extent it is inconsistent with a tribe's dependent status -- i.e., to the extent it involves the tribe's external relations with nonmembers -- unless there has been an express congressional delegation of tribal power to the contrary. Montana, supra, at 450 U. S. 564. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 447 U. S. 153; and United States v. Wheeler, 435 U. S. 313, 435 U. S. 326, reconciled. There is no contention here that Congress has expressly delegated to the Tribe the power to zone the fee lands of nonmembers. Pp. 492 U. S. 425-428.

(c) Although Montana, supra, at 450 U. S. 666, recognized, as an exception to its general principle, that a tribe "may" 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 tribe's political integrity, economic security, or health and welfare, that exception does not create tribal authority to zone reservation lands. The fact that the exception is prefaced by the word "may" indicates that a tribe's authority need not extend to all conduct having the specified effects, but, instead, depends on the circumstances. A literal application of the exception would make little sense in the present circumstances. To hold that the Tribe has authority to zone fee land when the activity on that land has the specified effects on Indian properties would mean that the authority would last only so long as the threatened use continued, would revert to the county when that use ceased, and, conceivably, could switch back and forth depending on what uses the county permitted, thereby engendering uncertainty that would further neither the Tribe's nor the county's interests, and would be chaotic for landowners. Accordingly, Montana should be understood to generally prohibit tribes from regulating the use of fee lands by way of tribal ordinance or actions in the tribal courts, but to recognize, in the special circumstances of checkerboard ownership of reservation lands, a protectible tribal interest under federal law, defined in terms of a demonstrably serious impact by the challenged uses that imperils tribal political integrity, economic security, or health and welfare. Since the Supremacy Clause requires state and local governments, including the county's zoning authorities, to recognize and respect that interest in the course of their activities, the Tribe should have argued in the zoning proceedings, not that the county was without zoning authority over reservation fee land, but that its tribal interests were imperiled. The District Court had jurisdiction to entertain the Tribe's suit, but, given that the county has jurisdiction to zone reservation fee lands, could enjoin county action only if the county failed to respect the Tribe's federal law rights. Pp. 492 U. S. 428-432.

2. In light of the District Court's findings that the county's exercise of zoning power over the Wilkinson property would have no direct effect on

Page 492 U. S. 411

the Tribe and would not threaten its political integrity, economic security, or health and welfare, the judgment in No. 87-1697 and 87-1711 must be reversed. Pp. 492 U. S. 432-433.

JUSTICE STEVENS, joined by JUSTICE O'CONNOR, announced the judgment of the Court in No. 87-1622 and concurred in the judgment in Nos. 87-1697 and 87-1711, concluding that:

1. The Tribe's power to exclude nonmembers from its reservation -- which derived from its aboriginal sovereignty and the express provisions of its treaty with the United States -- necessarily includes the lesser power to regulate land use in the interest of protecting the tribal community. Although, at one time, the Tribe's power to exclude was virtually absolute, the General Allotment Act (Dawes Act) in some respects diminished tribal authority by providing for the allotment of reservation lands in severalty to resident Indians, who were eventually free to sell to nonmembers. While the Indian Reorganization Act repudiated that allotment policy, large portions of reservation lands were conveyed to nonmembers in the interim. To the extent that large portions of reservation land were sold in fee, such that the Tribe could no longer determine the region's essential character by setting conditions on entry to those parcels, the Tribe's legitimate interest in land use regulation was also diminished. Although it is inconceivable that Congress would have intended that the sale of a few lots would divest the Tribe of the power to determine the character of the region, it is equally improbable that Congress envisioned that the Tribe would retain its interest in regulating the use of vast ranges of land sold in fee to nonmembers who lack any voice in setting tribal policy. Thus, the resolution of these cases depends on the extent to which the Tribe's virtually absolute power to exclude has been either diminished by statute or voluntarily surrendered by the Tribe itself with respect to the relevant areas of the reservation. Pp. 492 U. S. 433-437

2. The Tribe has the power to zone the Brendale property, which is in the reservation's closed area. Although the presence of logging operations, the construction of Bureau of Indian Affairs roads, and the transfer of ownership of a relatively insignificant amount of land in that area unquestionably have diminished the Tribe's power to exclude non-Indians from the area, this does not justify the conclusion that the Tribe has surrendered its historic right to regulate land use there. To the contrary, by maintaining the power to exclude nonmembers from entering all but a small portion of that area, the Tribe has preserved the power to define the area's essential character, and has, in fact, exercised that power through its zoning ordinance. Moreover, the Tribe has authority to prevent the few individuals who own portions of the closed area in fee from undermining its general plan to preserve the area's

Page 492 U. S. 412

unique character by developing their isolated parcels without regard to an otherwise common scheme. It seems necessary to a reasonable operation of the allotment process that Congress could not possibly have intended in enacting the Dawes Act that tribes would lose control over the character of their reservations upon the sale of a few, relatively small parcels of lands. Cf. Superintendent of Washington State Penitentiary, 368 U. S. 351, 368 U. S. 356; Mattz v. Arnett, 412 U. S. 481, 412 U. S. 497. Rather, the tribes' power to zone is like an equitable servitude in that the burden of complying with the zoning rules runs with the land without regard to how a particular estate is transferred. Montana v. United States, 450 U. S. 544, does not require a different result, since, unlike the tribal regulation considered in that case, the Yakima Nation's zoning rule is neutrally applied to Indians and non-Indians alike, is necessary to protect the welfare of the Tribe, and does not interfere with any significant state or county interest. Pp. 492 U. S. 438-444.

3. The Tribe lacks authority to zone the Wilkinson property, which is in the reservation's open area. Given that about half of the open area land is owned by nonmembers, the Tribe no longer possesses the power to determine the basic character of that area, and allowing a nonmember to use his lands in a manner that might not be approved by the Tribe does not upset an otherwise coherent scheme of land use. Moreover, it is unlikely that Congress intended to give the Tribe the power to determine the character of an area that is predominately owned and populated by nonmembers, who represent 80% of the population, yet lack a voice in tribal governance. Furthermore, to the extent the open area has lost its character as an exclusive tribal resource, and has become, as a practical matter, an integrated portion of the county that is not economically or culturally delimited by reservation boundaries, the Tribe has lost any claim to an interest analogous to an equitable servitude. Thus, the Tribe's power to zone the open area has become outmoded. Pp. 492 U. S. 444-447.

JUSTICE BLACKMUN, joined by JUSTICE BRENNAN and JUSTICE MARSHALL, concurred in the judgment in No. 87-1622, concluding that an Indian tribe's power to zone reservation lands, once it chooses to exercise that power, is exclusive. Thus, the county lacks authority to zone the Yakima Nation's reservation lands, including fee lands, in both the open and closed areas. Pp. 492 U. S. 448-468.

(a) Under all of the Court's decisions dealing with the inherent sovereignty of Indian tribes, including Montana v. United States, 450 U. S. 544, tribes retain the inherent authority to exercise civil jurisdiction over non-Indian activities on reservation lands, including the power to zone fee lands, where those non-Indian activities implicate significant tribal interests. Moreover, this Court's decisions and common sense

Page 492 U. S. 413

compel a finding that a tribe has zoning authority over all the lands within it reservation, and not just those in "closed" areas. Pp. 492 U. S. 449-465.

(b) Although the States have concurrent authority to exercise jurisdiction over non-Indian activities on reservation lands in some circumstances, this authority is preempted if its exercise would do violence to the right of either sovereign. Concurrent zoning jurisdiction, by its very nature, is unworkable, since it has the practical effect of nullifying the efforts of both sovereigns to establish comprehensive plans in every instance where the two establish different permissible land uses for the same tract. Pp. 492 U. S. 465-468.

WHITE, J., joined by REHNQUIST, C.J.,and SCALIA and KENNEDY, JJ., delivered an opinion announcing the judgment of the Court in Nos. 87-1697 and 87-1711 and dissenting in No. 87-1622. STEVENS, J., joined by O'CONNOR, J., delivered an opinion announcing the judgment of the Court in No. 87-1622 and concurring in the judgment in Nos. 87-1697 and 871711, post, p. 492 U. S. 433. BLACKMUN, J., joined by BRENNAN and MARSHALL, JJ., filed an opinion concurring in the judgment in No. 87-1622 and dissenting in Nos. 87-1697 and 87-1711, post, p. 492 U. S. 448.

Page 492 U. S. 414

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