Evans v. Shoshone-Bannock Land Use Policy Commission, 736 F.3d 1298

Background

David Evans (nonmember) owns fee-simple parcel within the Fort Hall Reservation and began building a single-family home after obtaining a county permit.
The Shoshone-Bannock Tribes, through their Land Use Policy Commission, demanded tribal permits, fees, and contractor licensing; Evans refused.
The Tribes posted a Stop Work Notice, issued a Cease-and-Desist/Notice of Violation, and sued Evans and his builders in tribal court for violating tribal land-use and business-license ordinances.
Evans filed in federal court seeking declaratory and injunctive relief, arguing the tribal court lacked jurisdiction; he had not exhausted tribal remedies.
The district court dismissed for failure to exhaust, finding tribal jurisdiction plausible; Evans appealed. The Ninth Circuit reversed, holding tribal courts plainly lacked jurisdiction and remanded for further proceedings on remaining injunction factors.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether tribal-court jurisdiction over Evans (owner of non-Indian fee land) is plausible such that exhaustion is required	Evans: Tribal court plainly lacks jurisdiction over nonmember fee land; exhaustion not required	Tribes: Their zoning/regulatory authority (and environmental concerns) plausibly extend to Evans’ project; exhaustion required	Held: Tribal jurisdiction is not plausible here; exhaustion not required (district court erred)
Whether Brendale zoning exception supports tribal zoning of Evans’ parcel	Evans: Area is unlike Brendale’s closed, undeveloped refuge; Brendale inapplicable	Tribes: Brendale (and its reasoning) supports tribal zoning authority over certain fee parcels	Held: Brendale does not apply — surrounding area is developed/public and unlike Brendale’s closed area
Whether Montana’s second exception (protecting tribal political integrity, economic security, health/welfare) applies based on environmental/public-safety risks	Evans: Construction of one house does not pose catastrophic harm to tribal self-government	Tribes: Groundwater contamination, debris disposal, fire risk justify regulation	Held: Tribes failed to show catastrophic or direct effects; Montana exception not met
Whether other sources (treaty, statutes, state law, tribal ordinance) grant jurisdiction	Evans: Once land is fee-simple non-Indian, tribal plenary jurisdiction is lost; cited federal precedent controls	Tribes: Treaty, delegated authority, Idaho/Organic Act, and tribal ordinance support jurisdiction	Held: None of these sources grants jurisdiction over non-Indian fee land; tribal authority absent

Key Cases Cited

Plains Commerce Bank v. Long Family Land & Cattle, 554 U.S. 316 (2008) (tribes generally lack authority over nonmember activity on non-Indian fee land)
Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001) (Montana-rule context and limits on tribal power over nonmembers)
Montana v. United States, 450 U.S. 544 (1981) (two limited exceptions allowing tribal regulation of nonmembers)
Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408 (1989) (plurality and controlling opinion limiting tribal zoning to ‘‘closed’’ reservation areas)
Strate v. A-1 Contractors, 520 U.S. 438 (1997) (tribal adjudicative jurisdiction cannot exceed legislative jurisdiction)
Nevada v. Hicks, 533 U.S. 353 (2001) (narrow application of Montana exceptions)
Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842 (9th Cir. 2009) (federal challenge to tribal court jurisdiction and exhaustion framework)
Boozer v. Wilder, 381 F.3d 931 (9th Cir. 2004) (exhaustion of tribal remedies is prudential/comity-based with limited exceptions)
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standards for preliminary injunction)