BRENDALE v. CONFEDERATED TRIBES AND BANDS OF THE YAKIMA INDIAN NATION ET AL.
No. 87-1622
Supreme Court of the United States
Argued January 10, 1989—Decided June 29, 1989
492 U.S. 408
*Together with No. 87-1697, Wilkinson v. Confederated Tribes and Bands of the Yakima Indian Nation, and No. 87–1711, County of Yakima et al. v. Confederated Tribes and Bands of the Yakima Indian Nation, also on certiorari to the same court.
Jeffrey C. Sullivan argued the cause for petitioners in all cases. With him on the briefs for petitioners in No. 87–1711 was Terry Austin. Charles C. Flower and Patrick Andreotti filed briefs for petitioner in No. 87-1622. Dale B. Ramerman, Ronald T. Schaps, and Michael Mirande filed briefs for petitioner in No. 87-1697.
Tim Weaver argued the cause for respondents in all cases. With him on the brief was R. Wayne Bjur.†
The issue presented by these three consolidated cases is whether the Yakima Indian Nation or the County of Yakima, a governmental unit of the State of Washington, has the authority to zone fee lands owned by nonmembers of the Tribe located within the boundaries of the Yakima Reservation.
I
A
The Confederated Bands and Tribes of the Yakima Indian Nation are composed of 14 originally distinct Indian Tribes that banded together in the mid-1800‘s to negotiate with the United States. The result of those negotiations was a treaty signed in 1855 and ratified by the Senate in 1859.
The reservation is located in the southeastern part of the State of Washington. Approximately 1.3 million acres of land are located within its boundaries. Of that land, roughly 80% is held in trust by the United States for the benefit of the Yakima Nation or individual members of the Tribe. The remaining 20% of the land is owned in fee by Indian or non-Indian owners. Most of the fee land is found in Toppenish, Wapato, and Harrah, the three incorporated towns located in the northeastern part of the reservation. The remaining fee land is scattered throughout the reservation in a “checkerboard” pattern.
The parties to this litigation, as well as the District Court and the Court of Appeals, have treated the Yakima Reservation as divided into two parts: a “closed area” and an “open area.” The closed area consists of the western two-thirds of the reservation and is predominantly forest land. Of the approximately 807,000 acres of land in the closed area, 740,000 acres are located in Yakima County. Twenty-five thousand acres of the seven hundred and forty thousand acres are fee land. The closed area is so named because it has been closed to the general public at least since 1972 when the Bureau of Indian Affairs restricted the use of federally maintained roads in the area to members of the Yakima Nation and to its permittees, who must be record landowners or associated with the Tribe.2 Access to the open area, as its name sug-
B
The Yakima Nation adopted its first zoning ordinance in 1970. The ordinance was amended to its present form in 1972. By its terms, the Yakima Nation ordinance applies to all lands within the reservation boundaries, including fee lands owned by Indians or non-Indians. Yakima County adopted its present comprehensive zoning ordinance in 1972, although the county had regulated land use as early as 1946. The county ordinance applies to all real property within county boundaries, except for Indian trust lands. The ordinance establishes a number of use districts, which generally govern agricultural, residential, commercial, industrial, and forest watershed uses. The particular zoning designations at issue are “forest watershed” and “general rural.”
The fee lands located in the closed area are zoned by the county ordinance as forest watershed. That designation permits development of single-family dwellings, commercial campgrounds, small overnight lodging facilities, restaurants, bars, general stores and souvenir shops, service stations, marinas, and sawmills. The minimum lot size is one-half acre. None of these uses would be permitted by the zoning des-
The general rural zoning designation, applicable to land in the open area, is one of three use districts governing agricultural properties. The minimum lot size for land zoned general rural is smaller than that specified for agricultural land in the Yakima Nation ordinance, although the other county use districts for agricultural properties have larger minimum lot sizes than the Yakima Nation ordinance.
C
1
Petitioner Philip Brendale, who is part Indian but not a member of the Yakima Nation, owns a 160-acre tract of land near the center of the forested portion of the closed area. The parcel was originally allotted to Brendale‘s great aunt, a member of the Yakima Nation. The land passed by inheritance to Brendale‘s mother and grandfather, who were issued a fee patent in 1963, and then, on his mother‘s death in 1972, to Brendale. The land is zoned as reservation restricted area by the Yakima Nation. It is zoned forest watershed by Yakima County.
In January 1982, Brendale filed four contiguous “short plat” applications with the Yakima County Planning Department. After determining that the short platting did not require an Environmental Impact Statement (EIS), the department issued a Declaration of Non-Significance. The department requested comments from the Yakima Nation, and after the Tribe did not respond, the short plats were approved.
Brendale then submitted in April 1983 a “long plat” application to divide one of his platted 20-acre parcels into 10 2-acre lots to be sold as summer cabin sites. Each lot is to have an individual well and a septic tank. Electric generators would provide electricity. The proposed plat is bordered on the north and east by other lands owned by Brendale, on the
The county planning department again issued a Declaration of Non-Significance. The Yakima Nation appealed the Declaration of Non-Significance to the Yakima County Board of Commissioners on the grounds that the county had no zoning authority over the land and that an EIS was necessary. The commissioners concluded that the appeal was properly before the Board but reversed the planning department and ordered that an EIS be prepared.3
2
Petitioner Stanley Wilkinson, a non-Indian and a nonmember of the Yakima Nation, owns a 40-acre tract of land in the open area of the reservation. The tract is located less than a mile from the northern boundary of the reservation and is on a slope overlooking the Yakima Municipal Airport and the city of Yakima. The land is bordered on the north by trust land and on the other three sides by fee land, and is currently vacant sagebrush property. It is zoned agricultural by the Yakima Nation and general rural by Yakima County.
In September 1983, Wilkinson applied to the Yakima County Planning Department to subdivide 32 acres of his land into 20 lots. The lots range in size from 1.1 acres to 4.5 acres. Each is to be used for a single-family home and will be served by individual wells and septic systems. The proposed development would not have been permissible under the Yakima Nation ordinance.
The planning department initially indicated that an EIS needed to be prepared for the project, but later, after Wilkinson modified his proposal, the department issued a Declaration of Non-Significance. The Yakima Nation thereafter ap-
D
The Yakima Nation then filed separate actions in United States District Court challenging the proposed development of the Brendale and Wilkinson properties and the county‘s exercise of zoning authority over the land.4 The complaints sought a declaratory judgment that the Yakima Nation had exclusive authority to zone the properties at issue and an injunction barring any action or the approval of any action on the land inconsistent with the land-use regulations of the Yakima Nation.
The District Court held that the Yakima Nation had exclusive zoning authority over the Brendale property, Yakima Indian Nation v. Whiteside, 617 F. Supp. 735, 744, 747 (ED Wash. 1985) (Whiteside I), but concluded that the Tribe lacked authority over the Wilkinson property, Yakima Indian Nation v. Whiteside, 617 F. Supp. 750, 758 (ED Wash. 1985) (Whiteside II). The District Court looked to this Court‘s opinion in Montana v. United States, 450 U.S. 544 (1981), as controlling whether an Indian tribe has authority to regulate activities of nonmembers of the tribe on fee lands. The District Court determined that there was no evidence of any “consensual relationship” between the Yakima Nation
On appeal, the Ninth Circuit consolidated the cases and affirmed as to the Brendale property but reversed as to the Wilkinson property. Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside, 828 F.2d 529 (1987). In upholding the Yakima Nation‘s zoning authority, the Court of Appeals did not disturb or rely on the findings of the District Court. Instead, it concluded that zoning ordinances
Brendale, Wilkinson, and Yakima County each petitioned for writ of certiorari.7 We granted the petitions and consolidated the cases for argument. 487 U.S. 1204 (1988).
II
The present actions were brought by the Yakima Nation to require development occurring on property within the boundaries of its reservation to proceed in accordance with the Yakima Nation zoning ordinance. The Tribe is necessarily contending that it has the exclusive authority to zone all of the property within the reservation, including the projects at issue here. We therefore examine whether the Yakima Nation has the authority, derived either from its treaty with the
A
The Yakima Nation argues first that its treaty with the United States establishes its authority to regulate fee land within the reservation but owned by nonmembers of the Tribe. By its terms, the Treaty with the Yakimas provides that the land retained by the Yakima Nation “shall be set apart ... for the exclusive use and benefit” of the Tribe, and no “white man, excepting those in the employment of the Indian Department, [shall] be permitted to reside upon the said reservation without permission of the tribe.”
We disagree. The Yakima Nation no longer retains the “exclusive use and benefit” of all the land within the reservation boundaries established by the Treaty with the Yakimas. Under the
We analyzed the effect of the Allotment Act on an Indian tribe‘s treaty rights to regulate activities of nonmembers on fee land in Montana v. United States. The treaty language there was virtually identical to the language in the Treaty with the Yakimas, 450 U.S., at 558, and we concluded that “treaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands.” Id., at 561. See also Puyallup Tribe, Inc. v. Washington Game Dept., 433 U.S. 165, 174 (1977). In Montana, as in the present cases, the lands at issue had been alienated under the Allotment Act, and the Court concluded that “[i]t defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government.” 450 U.S., at 560, n. 9.
The Yakima Nation argues that we should not consider the Allotment Act because it was repudiated in 1934 by the
JUSTICE STEVENS acknowledges that the Allotment Act eliminated tribal authority to exclude nonmembers from fee lands they owned. Post, at 436-437. Yet he concludes that Brendale and Wilkinson are somehow subject to a tribal power to “determine the character of the tribal community,” post, at 437, unless the Tribe has voluntarily surrendered that power. This view of tribal zoning authority as a sort of equitable servitude, post, at 442, is wholly unsupported by precedent.
JUSTICE STEVENS begins with a tribe‘s power to exclude nonmembers from its land and from that power derives a tribal “power to define the character of” that land, post, at 434, which he asserts as the basis for the Yakima Nation‘s exercise of zoning authority over the closed area of its reservation. According to JUSTICE STEVENS, the power to exclude “necessarily must include the lesser power to regulate land
Aside from the alleged inconceivability of the result, JUSTICE STEVENS offers no support for his assertion that in enacting the Allotment Act Congress intended tribes to retain the “power to determine the character of the tribal community.” Ibid. JUSTICE STEVENS cites only Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351 (1962), and Mattz v. Arnett, 412 U.S. 481 (1973), in support of his position. Post, at 441-442. Those cases are irrelevant to the issue at hand, however, concluding merely that allotment is consistent with continued reservation status. Meanwhile, Montana is directly to the contrary: the Court there flatly rejected the existence of a power, derived from the power to exclude, to regulate activities on lands from which tribes can no longer exclude nonmembers. See 450 U.S., at 559. JUSTICE STEVENS’ attempts to distinguish Montana are unavailing. The distinctions on which he relies, that the regulation there was discriminatory, posed no threat to the welfare of the Tribe, and infringed on state interests, post, at 443-444, are not even mentioned in the section of the Montana opinion considering the power to exclude, see 450 U.S., at 557-563, and certainly were not considered by the Court in that case as having any relevance to this issue.8
We would follow Montana and conclude that, for the reasons stated there, any regulatory power the Tribe might have under the treaty “cannot apply to lands held in fee by non-Indians.” Id., at 559.
B
An Indian tribe‘s treaty power to exclude nonmembers of the tribe from its lands is not the only source of Indian regulatory authority. In Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982), the Court held that tribes have inherent sovereignty independent of that authority arising from their power to exclude. Prior to the European settlement of the New World, Indian tribes were “self-governing sovereign political communities,” United States v. Wheeler, 435 U.S. 313, 322-323 (1978), and they still retain some “elements of ‘quasi-sovereign’ authority after ceding their lands to the United States and announcing their dependence on the Federal Government,” Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 (1978). Thus, an Indian tribe generally retains sovereignty by way of tribal self-government and control over other aspects of its internal affairs. Montana, supra, at 564.
A tribe‘s inherent sovereignty, however, is divested to the extent it is inconsistent with the tribe‘s dependent status,
This list is by no means exclusive, as Montana makes clear. In Montana, the Crow Tribe sought to prohibit hunting and fishing within its reservation by anyone not a member of the Tribe. The Court held that the Tribe‘s inherent sovereignty did not support extending the prohibition on hunting and fishing to fee lands owned by non-Indians. It recognized the general principle that the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” 450 U.S., at 564. Because regulation of hunting and fishing on fee lands owned by nonmembers of the Tribe did not bear any “clear relationship to tribal self-government or internal relations,” ibid., this general principle precluded extension of tribal jurisdiction to the fee lands at issue.
The Yakima Nation contends that the Court‘s insistence in Montana on an express congressional delegation of tribal power over nonmembers is inconsistent with language in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 153 (1980), that tribal powers are
JUSTICE BLACKMUN takes a slightly different approach, relying particularly on Colville and Wheeler for the proposition that “tribal sovereignty is not implicitly divested except in those limited circumstances principally involving external powers of sovereignty where the exercise of tribal authority is necessarily inconsistent with their dependent status.” Post, at 451-452. But JUSTICE BLACKMUN ignores what the Court made clear in Wheeler, in a passage immediately preceding the one he cites: that regulation of “the relations between an Indian tribe and nonmembers of the tribe” is necessarily inconsistent with a tribe‘s dependent status, and therefore tribal sovereignty over such matters of “external relations” is divested. 435 U.S., at 326. Indeed, it is precisely this discussion that the Court relied upon in Montana as “distinguish[ing] between those inherent powers retained by the tribes and those divested.” 450 U.S., at 564.
C
Our inquiry does not end here because the opinion in Montana noted two “exceptions” to its general principle. First, “[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.” 450 U. S., at 565. Second, “[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 566.
The parties agree that the first Montana exception does not apply in these cases. Brendale and Wilkinson do not have a “consensual relationship” with the Yakima Nation simply by virtue of their status as landowners within reservation boundaries, as Montana itself necessarily decided. The Yakima Nation instead contends that the Tribe has authority to zone under the second Montana exception. We disagree.
Initially, we reject as overbroad the Ninth Circuit‘s categorical acceptance of tribal zoning authority over lands within reservation boundaries. We find it significant that the so-called second Montana exception is prefaced by the word “may” - “[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands
It is also evident that a literal application of the second exception would make little sense in the circumstances of these cases. To hold that the Tribe has authority to zone fee land when the activity on that land has the specified effect on Indian properties would mean that the authority would last
Montana should therefore not be understood to vest zoning authority in the tribe when fee land is used in certain ways. The governing principle is that the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land. The inquiry thus becomes whether, and to what extent, the tribe has a protectible interest in what activities are taking place on fee land within the reservation and, if it has such an interest, how it may be protected. Of course, under ordinary law, neighbors often have a protectible interest in what is occurring on adjoining property and may seek relief in an appropriate forum, judicial or otherwise. Montana suggests that in the special circumstances of checkerboard ownership of lands within a reservation, the tribe has an interest under federal law, defined
Since the tribes’ protectible interest is one arising under federal law, the Supremacy Clause requires state and local governments, including Yakima County zoning authorities, to recognize and respect that interest in the course of their activities. The Tribe in this case, as it should have, first appeared in the county zoning proceedings, but its submission should have been, not that the county was without zoning authority over fee land within the reservation, but that its tribal interests were imperiled. The federal courts had jurisdiction to entertain the Tribe‘s suit for declaratory and injunctive relief,13 but given that the county has jurisdiction to zone fee lands on the reservation and would be enjoinable only if it failed to respect the rights of the Tribe under federal law, the proper course for the District Court in the Brendale phase of this case would have been to stay its hand until the zoning proceedings had been completed. At that time, a judgment could be made as to whether the uses that were actually authorized on Brendale‘s property imperiled the political integrity, the economic security, or the health or welfare of the Tribe. If due regard is given to the Tribe‘s protectible interest at all stages of the proceedings, we have every confidence that the nightmarish consequences predicted by JUSTICE BLACKMUN, post, at 460-461, will be avoided. Of course
III
The District Court found that Yakima County‘s exercise of zoning power over the Wilkinson property would have no direct effect on the Tribe and would not threaten the Tribe‘s political integrity, economic security, or health and welfare. Whiteside II, 617 F. Supp., at 755. On the basis of these findings, it is clear that the Wilkinson development and the county‘s approval of that development do not imperil any interest of the Yakima Nation. Therefore, I would reverse the judgment of the Ninth Circuit as to the Wilkinson property.
The Brendale property presents a different situation. At the time the Tribe filed its suit, the county had agreed with the Tribe that an EIS was required before Brendale‘s development could go forward. The zoning proceedings had thus not been concluded, and the District Court‘s judgment was that the county had no power to go forward. That judgment was infirm under the approach outlined in this opinion. The zoning proceedings should have been allowed to conclude, and it may be that those proceedings would adequately recognize tribal interests and make unnecessary further action in the District Court. If it were otherwise, the District Court could then decide whether the uses the State permits on the Brendale property would do serious injury to, and clearly imperil, the protectible tribal interests identified in this opinion. This part of the case in my view should therefore be returned to District Court. A majority of this Court, however, disagrees with this conclusion.
Accordingly, since with respect to the Wilkinson property, JUSTICE STEVENS and JUSTICE O‘CONNOR agree that the judgment of the Court of Appeals in Nos. 87-1697 and 87-1711 should be reversed, that is the judgment of the Court in those cases. With respect to the Brendale property, I would vacate the judgment of the Court of Appeals
The judgment in Nos. 87-1697 and 87-1711 is
Reversed.
JUSTICE STEVENS, joined by JUSTICE O‘CONNOR, delivered an opinion announcing the judgment of the Court in No. 87-1622 and concurring in the judgment in Nos. 87-1697 and 87-1711.
The United States has granted to many Indian tribes, including the Yakima Nation - “a power unknown to any other sovereignty in this Nation: a power to exclude nonmembers entirely from territory reserved for the tribe.” Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 160 (1982) (STEVENS, J., dissenting). That power necessarily must include the lesser power to regulate land use in the interest of protecting the tribal community. Thus, the proper resolution of these cases depends on the extent to which the Tribe‘s virtually absolute power to exclude has been either diminished by federal statute or voluntarily surrendered by the Tribe itself. The facts of record, which are summarized in JUSTICE WHITE‘S opinion, ante, at, 414-421, dictate a different answer as to the two tracts of land at issue.
I
Zoning is the process whereby a community defines its essential character. Whether driven by a concern for health and safety, esthetics, or other public values, zoning provides the mechanism by which the polity ensures that neighboring uses of land are not mutually - or more often unilaterally - destructive. As Justice Sutherland observed for the Court in the landmark case of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), the power to zone closely parallels the common law of nuisance and thus finds guidance in “the maxim
An Indian tribe‘s power to exclude nonmembers from a defined geographical area obviously includes the lesser power to define the character of that area. In New Mexico v. Mescalero Apache Tribe, 462 U. S. 324 (1983), a unanimous Court recognized that “[a] tribe‘s power to exclude nonmembers entirely or to condition their presence on the reservation is . . . well established.” Id., at 333. Likewise, in Merrion, the Court wrote:
“Nonmembers who lawfully enter tribal lands remain subject to the tribe‘s power to exclude them. . . . This power necessarily includes the lesser power to place conditions on entry, on continued presence, or on reservation conduct . . . . When a tribe grants a non-Indian the right to be on Indian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry. However, it does not follow that the lawful property right to be on Indian land also immunizes the non-Indian from the tribe‘s exercise of its lesser-included power . . . to place . . . conditions on the non-Indian‘s conduct or continued presence on the reservation.” 455 U. S., at 144-145 (footnote omitted) (emphasis in original).
It is difficult to imagine a power that follows more forcefully from the power to exclude than the power to require
At one time, the Yakima Nation‘s power to exclude nonmembers from its reservation was near absolute. This power derived from two sources: The Tribe‘s aboriginal sovereignty over vast reaches of land in the Pacific Northwest and the express provisions of its 1855 treaty with the United States. Even in the absence of a treaty provision expressly granting such authority, Indian tribes maintain the sovereign power of exclusion unless otherwise curtailed. See Worcester v. Georgia, 6 Pet. 515, 561 (1832); F. Cohen, Handbook of Federal Indian Law 252 (1982) (hereinafter Cohen); 1 Op. Atty. Gen. 465, 465-467 (1821). As is the case with many tribes, see, e. g., Montana v. United States, 450 U. S. 544, 548 (1981); Puyallup Tribe, Inc. v. Washington Game Dept., 433 U. S. 165, 174 (1977), the Yakima Nation‘s power to exclude was confirmed through an express treaty provision. Through the 1855 treaty, which was ratified by the Senate and proclaimed by President Buchanan in 1859, the Yakima Nation ceded to the United States millions of acres of land east of the main ridge of the Cascade Mountains in exchange for the guarantee that a defined area of approximately 1.3 million acres would be reserved from the ceded lands “for the use and occupation of the aforesaid confederated tribes and bands of Indians.” Treaty between the United States and the Yakima Nation of Indians, 12 Stat. 951-952. The treaty provided that the entire “tract shall be set apart . . . for the exclusive use and benefit of said confederated tribes and bands of Indians, as an Indian reservation,” and that no “white man, excepting those in the employment of the Indian Department, [shall] be permitted to reside upon said reservation without permission of the tribe and the superintendent and agent.” Id., at 952. Thus, as of 1859, the Tribe‘s power to exclude was firmly established. The power to regulate land use ran parallel to the power to exclude. Just as the Tribe had authority to limit absolutely access to the reserva-
In 1887, however, the Indian General Allotment Act (Dawes Act),
The Dawes Act did not itself transfer any regulatory power from the Tribe to any state or local governmental authority. See Moe v. Confederated Salish and Kootenai Tribes, supra; Mattz v. Arnett, supra. Nonetheless, by providing for the allotment and ultimate alienation of reservation land, the Act in some respects diminished tribal authority. As we recognized in Montana v. United States, “treaty
Since the Dawes Act provided that individual allotments would be held in trust by the United States for members of the Tribe for a period of at least 25 years, it is evident that the tribal authority over land use within the reservation remained undiminished during that period and at least until actual transfers of land to nonmembers began to occur. The record does not contain a chronology of conveyances of trust lands to nonmembers of the Tribe, but it does disclose the extent of fee ownership of reservation lands at the time these lawsuits began. Most significantly, it establishes that as early as 1954 the Tribe had divided its reservation into two parts, which the parties and the District Court consistently described as the “closed area” and the “open area,” and that it continues to maintain the closed area as a separate community. That division, which was made many years before either petitioner Brendale or petitioner Wilkinson acquired title to reservation land, is of critical importance and requires a different disposition of their respective cases.2
II
Resolutions adopted by the Tribal Council of the Yakima Nation have created what is known officially as the “reservation restricted area,” and commonly referred to as the “closed area.” Relying on language in the 1855 treaty assuring the Tribe “exclusive use and benefit” of reservation lands, the Council in a 1954 resolution declared “that the open range and forested area of the Yakima Indian Reservation is to remain closed to the general public” to protect the area‘s “grazing, forest, and wildlife resources.” Resolution of Yakima Tribal Council (Aug. 4, 1954) (emphasis supplied). Under the 1954 resolution, entry into this area was “restricted to enrolled members of the Yakima Tribe, official agency employees, persons with bona fide property or business interests,” close relatives of enrolled members, members of certain other Tribes, and certain permittees. Ibid. In addition, the resolution provided that “[e]ntry into closed areas is forbidden all persons while under the influence of liquor.” Ibid.
Although the closed area occupies about 807,000 acres, consisting of almost two-thirds of the entire reservation, only 25,000 acres are owned in fee. Yakima Indian Nation v. Whiteside, 617 F. Supp. 735, 741 (ED Wash. 1985). For the most part this area consists of forests, which provide the major source of income to the Tribe. Virtually all of the fee land is owned by lumber companies whose operations are subject to regulation by the Bureau of Indian Affairs (BIA). Ibid. Cf. White Mountain Apache Tribe v. Bracker, 448 U. S. 136 (1980). Excluding the land owned by these lumber companies, the remaining fee land constitutes less than one percent of the closed area. 617 F. Supp., at 741. There are no permanent inhabitants of the Yakima County portion of the closed area. Id., at 742. One state-maintained highway
The Tribe operates a “courtesy permit system” that allows selected groups of visitors access to the closed area. In order to protect the area‘s “natural foods, medicines,” and other natural resources, the activities of visitors “are limited to sightseeing, hiking, camping and tribal, BIA or family related business or activity.” 617 F. Supp., at 738. Visitors are expressly “prohibited from hunting, fishing, boating, drinking, operating vehicles off established roads, camping at other than designated campsites and removing flora, fauna, petrified wood, other valuable rocks or minerals or artifacts.” Ibid. Tribal police and game officers enforce the courtesy permit system by monitoring ingress and egress at four guard stations and by patrolling the interior of the closed area. Ibid.
Until recently the BIA supported the Tribe‘s policy of denying entry into the closed area by restricting use of BIA roads to members of the Tribe and a narrowly defined class of permittees. See ibid. In litigation with the Government, petitioner Brendale eventually succeeded in establishing a right of access to his own property over BIA roads. See Brendale v. Olney, No. C-78-145 (ED Wash., Mar. 3, 1981). Moreover, in 1988 the BIA ultimately decided to allow the public to use BIA roads because they had been constructed with public funds. See Letter from James S. Bergmann, Acting Assistant Secretary, Indian Affairs, of April 8, 1988, reprinted in App. to Brief for Petitioner in No. 87-1622, p. 1a. Contrary to the suggestion in JUSTICE WHITE‘S opinion, see ante, at 415-416, n. 2, however, the fact that nonmembers may now drive on these roads does not change the basic character of the closed area or undermine the Tribe‘s
Petitioner Brendale‘s property is located in the heart of this closed portion of the reservation. He inherited the property in 1972 from his mother, who had been an enrolled member of the Yakima Nation. In 1982, Brendale filed a proposal with the Yakima County zoning authorities for the development of a 20-acre subdivision consisting of 10 2-acre lots. BIA roads provide the only access to the property, the nearest county road being more than 20 miles away. The proposal contemplates the construction of recreational summer cabins, on-site sewage disposal systems, and interior access roads that would be maintained by a homeowners’ association. 617 F. Supp., at 741. The District Court found that the proposal would have a number of adverse environmental consequences and that the only interest that Yakima County possessed in overseeing the use of the Brendale property was that of “providing regulatory functions to its tax-paying citizens.” Id., at 741-743. The county did not appeal from the District Court‘s decision holding that the Tribe has the exclusive authority to regulate land use in the closed area.3
The question is then whether 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 character of this unique resource by developing their isolated parcels without regard to an otherwise common scheme. More simply, the question is whether the owners of the small amount of fee land may bring a pig into the parlor. In my opinion, just as Congress could not possibly have intended in enacting the Dawes Act that tribes would maintain the power to exclude bona fide purchasers of reservation land from that property, it could not have intended that tribes would lose control over the character of their reservations upon the sale of a few, relatively small parcels of land. Neither proposition is explicit in the Dawes Act, yet both appear necessary to a reasonable operation of the allotment process. Cf. Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351, 356 (1962) (allotment “did no more than open
In the Merrion case, a majority of this Court went a step beyond this narrow recognition of reserved power. There, the Court held that a tribe‘s power to impose an oil and gas severance tax on non-Indian lessees of reservation land can be derived from the power to exclude. 455 U. S., at 144-148. In reaching this conclusion, the Court rejected the lessee‘s contention that in leasing the land to the non-Indians the Tribe relinquished the power to exclude and thus the lesser included power to tax. Id., at 146-148. It is not necessary to go this far, however, to decide the present case. Rather, it is enough to recognize that notwithstanding the transfer of a small percentage of allotted land the Tribe retains its legitimate interest in the preservation of the character of the reservation. The Tribe‘s power to control the use of discrete, fee parcels of the land is simply incidental to its power to preserve the character of what remains almost entirely a region reserved for the exclusive benefit of the Tribe.
“planned development of recreational housing places critical assets of the Closed Area in jeopardy. . . . [O]f paramount concern to this court is the threat to the Closed Area‘s cultural and spiritual values. To allow development in this unique and undeveloped area would drastically diminish those intangible values. That in turn would undoubtedly negatively affect the general health and welfare of the Yakima Nation and its members. This court must conclude therefore that the Yakima Nation may regulate the use that Brendale makes of his fee land within the Reservation‘s Closed Area.” 617 F. Supp., at 744.
Finally, in holding in the Montana case that the Tribe could not regulate non-Indian fishing and hunting on fee land within the reservation, we stressed that the State of Montana, and not the Tribe, stocked the river with fish and provided a portion of the game found on the reservation. 450 U. S., at 548. In addition, we held that the State owned the bed of the Big Horn River and thus rejected the Tribe‘s contention that it was entitled to regulate fishing and duck hunting in the river based on its purported ownership interest.
In my view, the fact that a very small proportion of the closed area is owned in fee does not deprive the Tribe of the right to ensure that this area maintains its unadulterated character. This is particularly so in a case such as this in which the zoning rule at issue is neutrally applied, is necessary to protect the welfare of the Tribe, and does not interfere with any significant state or county interest. Although application of the pre-emption analysis advocated by JUSTICE WHITE provides some assurance that the reservation will not be overrun by various uses inconsistent with important tribal interests, it does not provide a means by which the Tribe can continue to define the character of the restricted area. The incremental shifts in the texture and quality of the surrounding environment occasioned by discrete land-use decisions within an expansive territory are not readily monitored or regulated by considering “whether the uses that were actually authorized on [the relevant] property imperiled the political integrity, the economic security, or the health or welfare of the Tribe.” Ante, at 431.
I therefore agree with JUSTICE BLACKMUN that the Tribe may zone the Brendale property. The judgment of the Court of Appeals is accordingly affirmed in No. 87-1622.
III
The authority of the Tribe to enact and enforce zoning ordinances applicable in the open area - where petitioner Wilkinson‘s property is located - requires a different analysis. Although the Tribe originally had the power to exclude non-Indians from the entire reservation, the “subsequent alienation” of about half of the property in the open area has produced an integrated community that is not economically or culturally delimited by reservation boundaries. Because the Tribe no longer has the power to exclude nonmembers from a large portion of this area, it also lacks the power to
Unlike the closed area, the Tribe makes no attempt to control access to the open area. In this respect, the District Court found that “access to the area is not limited by the Yakima Nation and non-tribal members move freely throughout the area.” 617 F. Supp., at 752. The county has constructed and maintained 487 miles of road, all of which are equally accessible to reservation residents and the general public. App. to Pet. for Cert. in No. 87-1697, p. 87a. Although the Tribe has asserted that it has the authority to regulate land use in the three incorporated towns, it has never attempted to do so. In “sharp contrast to the pristine, wilderness-like character of the ‘Closed Area,‘” the open area is marked by “residential and commercial developmen[t].” 617 F. Supp., at 752.
Members of the Yakima Nation represent less than 20 percent of the open area‘s total population.4 Indians and non-Indians alike are eligible to vote in county elections. Only enrolled members of the Tribe, however, are entitled to participate in tribal elections. 2 Tr. 167. Similarly, while the county provides police protection, public education, and other social services to both Indians and non-Indians, App. to Pet. for Cert. in No. 87-1697, p. 88a; 4 Tr. 546-547, government services provided by the Tribe -
In contrast to the closed area, almost half of the land in the open area is owned in fee. Id., at 752. The majority of the fee land is located in three incorporated towns in the open area, where approximately 10,000 of the open area‘s 25,000 residents live. Id., at 752, 755. The remaining portion of the open area, which includes approximately 143,000 acres of irrigated farm land, is largely devoted to agriculture. 3 Tr. 416. About 63,179 acres of this farm land are owned in fee by nonmembers. Id., at 422. Another 67,466 acres of this land are owned by the Yakima Nation or its members, but are leased to non-Indians. Ibid. Only 12,355 acres are farmed by tribal members. Ibid. Petitioner “Wilkinson‘s property is bordered to the north by trust land and to the east, south and west by fee land.” 617 F. Supp., at 754. The 40-acre lot overlooks the Yakima Municipal Airport and is composed of unfarmed, sagebrush land. Ibid.
Given that a large percentage of the land in the open area is owned in fee by nonmembers - and that an additional portion is leased to nonmembers - even if the Tribe had exercised its power to exclude nonmembers from trust land, it would have been unable thereby to establish the essential character of the region. In such circumstances, allowing a nonmember to use his or her land in a manner that might not be approved by the tribal council does not upset an otherwise coherent scheme of land use. The Tribe cannot complain that the nonmember seeks to bring a pig into the parlor, for, unlike the closed area, the Tribe no longer possesses the power to determine the basic character of the area. More-
I therefore agree with JUSTICE WHITE‘S conclusion that the Tribe lacks authority to zone the Wilkinson property.
IV
My conclusion that the dramatically different facts of these two cases should produce different results is subject to the obvious criticism that it does not identify a bright-line rule. The primary responsibility for line-drawing, however, is vested in the legislature. Moreover, line-drawing is inherent in the continuum that exists between those reservations that still maintain their status as distinct social structures and those that have become integrated in other local polities. Any difficulty courts may encounter in drawing the line between “closed” and “open” portions of reservations simply reflects that the factual predicate to these cases is itself complicated. Indeed, JUSTICE WHITE‘S rule does little to avoid the difficulty of drawing lines and making subtle distinctions. Just as it is neither possible nor appropriate in these cases to set
Accordingly, in No. 87-1622, the judgment of the Court of Appeals is affirmed. I concur in the judgment in Nos. 87-1697 and 87-1711 reversing the judgment of the Court of Appeals.
The judgment in No. 87-1622 is
Affirmed.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in the judgment in No. 87-1622 and dissenting in Nos. 87-1697 and 87-1711.
The Court‘s combined judgment in these consolidated cases—splitting tribal zoning authority over non-Indian fee lands between the so-called “open” and “closed” areas of the Yakima Indian Reservation—is Solomonic in appearance only. This compromise result arises from two distinct approaches to tribal sovereignty, each of which is inconsistent with this Court‘s past decisions and undermines the Federal Government‘s longstanding commitment to the promotion of tribal autonomy. Because the Court‘s judgment that the Tribe does not have zoning authority over non-Indian fee lands in the “open” area of its reservation is wrong, in my view, as a matter of law and fashions a patently unworkable legal rule, I dissent in Nos. 87-1697 and 87-1711. Because
I
Eight years ago, this Court decided Montana v. United States, 450 U. S. 544 (1981). In that case, it was ruled that an Indian Tribe did not have the inherent authority to prohibit non-Indian hunting and fishing on fee lands located on a reservation and owned by a non-Indian, where the Tribe did not assert that any right or interest was infringed or affected by the non-Indian conduct. Today, with what seems to me to be no more than a perfunctory discussion of this Court‘s decisions both before and after Montana, JUSTICE WHITE‘S opinion reads that case as establishing a general rule, modified only by two narrow exceptions, that Indian tribes have no authority over the activities of non-Indians on their reservations absent express congressional delegation. Ante, at 425-426.
Applying this rule, JUSTICE WHITE further suggests that Montana‘s “second exception,” which recognizes inherent tribal authority over non-Indian conduct that “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe,” 450 U. S., at 566, does not extend to the right of an Indian tribe to make rational and comprehensive land-use decisions for its reservation. Such a holding would guarantee that adjoining reservation lands would be subject to inconsistent and potentially incompatible zoning policies, and for all practical purposes would strip tribes of the power to protect the integrity of trust lands over which they enjoy unquestioned and exclusive authority.
Montana need not, and should not, be read to require such an absurd result. When considered in the full context of the
A
JUSTICE WHITE‘s opinion reiterates a “general principle” it finds in Montana that Indian tribes have no authority over the activities of non-Indians absent express congressional delegation. Ante, at 426. Concededly, the Court in Montana suggested that the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” 450 U. S., at 564. But Montana is simply one, and not even the most recent, of a long line of our decisions discussing the nature of inherent tribal sovereignty. These cases, landmarks in 150 years of Indian-law jurisprudence, establish a very different “general principle” governing inherent tribal sovereignty—a principle according to which tribes retain their sovereign powers over non-Indians on reservation lands unless the exercise of that sovereignty would be “inconsistent with the overriding interests of the National Government.” See, e. g., Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 153 (1980). Montana, and specifically the two “exceptions” that Montana recognizes to its anomalous “general principle,” must be read against the rich and extensive background of these cases. When so considered, it is clear to me that nothing in Montana precludes, and indeed Montana contemplates, the exercise of civil jurisdiction over non-Indian activities on a tribal reservation, including the power to zone fee lands, where those non-Indian reservation activities implicate a significant tribal interest.
The crucial step in the process of interpreting Montana, and the step that JUSTICE WHITE‘S opinion neglects, is to place that case in the spectrum of what came before and after it. From a time long before the 13 Colonies declared their independence from England, European nations recognized the native tribes of this continent as self-governing, sovereign, political communities. From this Court‘s earliest jurisprudence immediately after the American Revolution, it followed the settled understanding of international law that the sovereignty of the individual tribes, “domestic dependent nations” that placed themselves under the protection of the United States, survived their incorporation within the United States, except as necessarily diminished.1 In the landmark Cherokee Cases, this Court, through Chief Justice Marshall, held that the dependent status of the tribes divested them only of those aspects of their sovereignty—in particular the authority to engage in governmental relations with foreign powers and the power to alienate land to non-Indians—that were inherently inconsistent with the paramount authority of the United States.2
Our approach to inherent tribal sovereignty remained essentially constant in all critical respects in the century and a half between John Marshall‘s first illumination of the subject and this Court‘s Montana decision. Time and again we stated that, while Congress retains the authority to abrogate tribal sovereignty as it sees fit, tribal sovereignty is not implicitly divested except in those limited circumstances
Our civil jurisdiction cases subsequent to Montana have reaffirmed this view: we have held without equivocation that tribal civil jurisdiction over non-Indians on reservation lands is not an aspect of tribal sovereignty necessarily divested by reason of the tribes’ incorporation within the dominant society. In Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982), we upheld a tribe‘s inherent authority to impose a severance tax on non-Indian mining on the reservation. This taxing authority, even over non-Indians, we wrote, is an “inherent power necessary to tribal self-government and territorial management.” Id., at 141. And in Iowa Mutual Ins. Co. v. LaPlante, 480 U. S. 9 (1987), we noted: “Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. ... Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.” Id., at 18 (citations omitted).5
2
Given this background, how should we read Montana, where the Court held that the Tribe had no inherent authority to prohibit non-Indians from hunting and fishing on fee lands within the reservation? With respect to Montana‘s “general principle” creating a presumption against tribal civil jurisdiction over non-Indians absent express congressional delegation, I find it evident that the Court simply missed its usual way. Although the Court‘s opinion reads as a restatement, not as a revision, of existing doctrine, it contains language flatly inconsistent with its prior decisions defining the scope of inherent tribal jurisdiction, e. g., Colville. Notably, in support of its anomalous “general principle,” the Montana opinion relies mainly on a line of state-law pre-emption cases that address the issue—irrelevant to the issue of inherent tribal sovereignty—as to when States may exercise jurisdiction over non-Indian activities on a reservation. See Montana, 450 U. S., at 564-566, citing Fisher v. District Court of Sixteenth Judicial District of Montana, 424 U. S. 382, 386 (1976); Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973); McClanahan v. Arizona State Tax Comm‘n, 411 U. S. 164, 171 (1973); and Williams v. Lee, 358 U. S. 217,
But to recognize that Montana strangely reversed the otherwise consistent presumption in favor of inherent tribal sovereignty over reservation lands is not to excise the decision from our jurisprudence. Despite the reversed presumption, the plain language of Montana itself expressly preserves substantial tribal authority over non-Indian activity on reservations, including fee lands, and, more particularly, may sensibly be read as recognizing inherent tribal authority to zone fee lands.
Montana explicitly recognizes that tribes “retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands.” 450 U. S., at 565. Specifically, Montana holds that tribes have civil jurisdiction over non-Indians who enter “contracts, leases or other arrangements” with the tribe, ibid., and over non-Indian conduct which “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe,” even if that conduct occurs on fee lands. Id., at 566. Thus, despite Montana‘s reversal of the usual presumption in favor of inherent sovereignty over reservation activity, the decision reasonably may be read, and, in my view, should be read, to recog-
Under this approach, once the tribe‘s valid regulatory interest is established, the nature of land ownership does not diminish the tribe‘s inherent power to regulate in the area. This, too, is consistent with our cases. The Court has affirmed and reaffirmed that tribal sovereignty is in large part geographically determined. “Indian tribes,” we have written, “are unique aggregations possessing attributes of sovereignty over both their members and their territory.” United States v. Mazurie, 419 U. S. 544, 557 (1975) (emphasis added); see also White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 151 (1980) (“The Court has repeatedly emphasized that there is a significant geographical component to tribal sovereignty“). We have held that lands obtained under the allotment policy, which permitted non-Indians to purchase lands located within reservations, remain part of those reservations unless Congress explicitly provides to the contrary, e. g., Mattz v. Arnett, 412 U. S. 481, 498-499 (1973), and that tribal jurisdiction cannot be considered to vary between fee lands and trust lands; the resulting “‘impractical pattern of checkerboard jurisdiction‘” would be contrary to federal statute and policy. Moe v. Confederated Salish & Kootenai Tribes, 425 U. S. 463, 478 (1976), quoting Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351, 358 (1962). Thus, in Merrion, a post-Montana case, we cited with approval the Court of Appeals decision in Buster v. Wright, 135 F. 947 (CA8 1905), appeal dism‘d, 203 U. S. 599 (1906), affirming the right of the Tribe to tax non-Indians on non-Indian-owned fee lands: “[n]either the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities therein endowed
It would be difficult to conceive of a power more central to “the economic security, or the health or welfare of the tribe,” Montana, 450 U. S., at 566, than the power to zone. “I am in full agreement with the majority that zoning ... may indeed be the most essential function performed by local government.” Village of Belle Terre v. Boraas, 416 U. S. 1, 13 (1974) (MARSHALL, J., dissenting), quoted in part and with approval in Young v. American Mini Theatres, Inc., 427 U. S. 50, 80 (1976) (concurring opinion). This fundamental sovereign power of local governments to control land use is especially vital to Indians, who enjoy a unique historical and cultural connection to the land. See, e. g., FPC v. Tuscarora Indian Nation, 362 U. S. 99, 142 (1960) (Black, J., dissenting). And how can anyone doubt that a tribe‘s inability to zone substantial tracts of fee land within its own reservation—tracts that are inextricably intermingled with reservation trust lands—would destroy the tribe‘s ability to engage in the systematic and coordinated utilization of land that is the very essence of zoning authority? See N. Williams, American Land Planning Law § 1.08 (1988). In Merrion, we held that the power to impose a severance tax on non-Indian oil and gas producers on the reservation was “an inherent power necessary to tribal self-government and territorial management.” 455 U. S., at 141. I am hard pressed to find any reason why zoning authority, a critical aspect of self-government and the ultimate instrument of “territorial management,” should not be deemed to lie within the inherent sovereignty of the tribes as well. Thus, if Montana is to fit at all within this Court‘s Indian sovereignty jurisprudence, zoning authority—even over fee lands—must fall within the scope of tribal jurisdiction under Montana.
3
JUSTICE WHITE‘s opinion rejects this reading of Montana for several reasons, none of which withstand scrutiny. First, his opinion notes that Montana‘s recognition of tribal sovereignty over non-Indian conduct that threatens the political and economic integrity or health or welfare of the tribe is prefaced by the word “may“—a linguistic turn that the majority reads as suggesting that such tribal sovereignty is not always retained. Ante, at 428. Read in context, I think it clear that the Court‘s use of the word “may” was not an expression of doubt about the existence of tribal sovereignty under the enumerated circumstances, but, rather, was a reflection of the obvious fact that the comment was pure dictum. A more definitive statement on an issue not presented in the case surely would have been inappropriate.
Second, JUSTICE WHITE‘S opinion suggests that applying Montana‘s language literally to the problem of zoning fee lands would create the peculiar, and untenable, situation of having zoning authority vary over time between the tribe and the State depending on what effect a proposed land use might have on the tribe. Ante, at 429-430. This hypothetical problem is entirely of JUSTICE WHITE‘s own creation.
What the majority offers the tribes falls far short of meeting their legitimate needs. JUSTICE WHITE‘s opinion fashions a newfangled federal nuisance-type cause of action by which the tribe may bring suit in federal court to enjoin a particular proposed land use that seriously imperils the political integrity, economic security, or health or welfare of the tribe. Ante, at 431-432. While resort to this proposed cause of action may ultimately prevent blatantly abusive non-Indian uses of reservation lands, the opportunity to engage in protracted litigation over every proposed land use that conflicts with tribal interests does nothing to recognize the tribe‘s legitimate sovereign right to regulate the lands within its reservation, with the view to the long-term, active management of land use that is the very difference between zoning and case-by-case nuisance litigation.
JUSTICE WHITE‘s opinion also claims that it is acting here to protect the expectations of landowners. I agree that the need for certainty in zoning laws is a valid concern. But if JUSTICE WHITE‘s true concern were with practical consequences, he would never adopt the rule he proposes today. Because we know that the Tribe, and only the Tribe, has authority to zone the trust lands within the reservation, JUSTICE WHITE‘s opinion, and a majority of the Court with respect to the “open” area, have established a regime that guarantees that neither the State nor the Tribe will be able to establish a comprehensive zoning plan. Although under the majority‘s rule landowners may be certain as to which
In any event, JUSTICE WHITE‘s opinion does not really explain why the general inability of a tribe to control land use on numerous tracts of land interspersed across its reservation does not inherently threaten the political integrity, economic security, or health or welfare of the tribe. Instead, the opinion claims that to hold that tribes have inherent zoning power over non-Indian fee lands would be to hold that tribes can exercise every police power over such lands, and that such a holding is contrary to the result in Montana itself. Ante, at 428-429.
This concern is misplaced. It does not necessarily follow that a finding of inherent zoning authority over fee lands on a checkerboarded reservation, an authority indispensable to the fulfillment of a tribe‘s uncontested right to zone its trust lands, also entails a finding of inherent authority for all police powers. As Montana itself demonstrates, there may be cases in which tribes assert the power to regulate activi-
4
In short, it is my view that under all of this Court‘s inherent sovereignty decisions, including Montana, tribes retain the power to zone non-Indian fee lands on the reservation. JUSTICE WHITE‘s opinion presents not a single thread of logic for the proposition that such zoning power is inconsistent with the overriding interest of the National Government, and therefore necessarily divested, or that such zoning power is not fundamental to the political and economic security of the tribe, and therefore reserved to the tribe by the plain language of Montana. Instead, at the expense of long-recognized tribal rights, many of our precedents, and 150 years of federal policy, JUSTICE WHITE‘S opinion replaces sovereignty with a form of legal tokenism: the opportunity to sue in court has replaced the opportunity to exercise sovereign authority. This substitution is without sound basis in law, and without practical value.
B
While JUSTICE WHITE‘s opinion misreads the Court‘s decisions defining the limits of inherent tribal sovereignty, JUSTICE STEVENS’ opinion disregards those decisions altogether. By grounding the Tribe‘s authority to zone non-Indian fee lands exclusively in its power to exclude non-Indians from the reservation, and by refusing even to consider whether the Tribe‘s inherent authority might support the zoning of non-Indian fee lands in the “open area,” JUSTICE STEVENS’ opinion appears implicitly to conclude that tribes have no inherent authority over non-Indians on reservation lands. As
JUSTICE STEVENS’ opinion also is at odds with this Court‘s reservation disestablishment decisions. See, e. g., Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351 (1962); Mattz v. Arnett, 412 U. S. 481 (1973); Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976). JUSTICE STEVENS distinguishes between the “open” and “closed” areas of the reservation on the ground that Congress, in enacting the Dawes Act, could not have intended for tribes to maintain zoning authority over non-Indian fee lands where, as in the “open area” of the Yakima Reservation, the allotment of reservation lands “has produced an integrated community that is not economically or culturally delimited by reservation boundaries.” Ante, at 444. I fail to see how this distinction can be squared with this Court‘s decisions specifically rejecting arguments that those reservation areas where the Dawes Act has resulted in substantial non-Indian land ownership should be treated differently for jurisdictional purposes from those areas where tribal holdings predominate. See, e. g., Seymour, 368 U. S., at 357-359. And I do not see how JUSTICE STEVENS’ theory can be squared with the unequivocal holdings of our cases that the Dawes Act did not diminish the reservation status of reservation lands alienated to non-Indian owners even where that part of the reservation had “lost its [Indian] identity.” See, e. g., Mattz, 412 U. S., at 484-485.
Precedents aside, JUSTICE STEVENS’ opinion points to no authority, either in the text of the Dawes Act or its legislative history, in support of its critical conjecture that “[a]lthough 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 tribal community, it is equally improbable that Congress envisioned that the Tribe would retain its interest in regulating the use of vast ranges
On a practical level, JUSTICE STEVENS’ approach to zoning authority poses even greater difficulties than JUSTICE WHITE‘S approach. JUSTICE STEVENS’ opinion not only would establish a self-defeating regime of “checkerboard” zoning authority in “open” areas of every reservation, but it would require an intrinsically standardless threshold determination as to when a section of a reservation contains sufficient non-Indian land holdings to warrant an “open” classification. JUSTICE STEVENS’ opinion suggests no benchmark for making this determination, and I can imagine none.
Moreover, to the extent that JUSTICE STEVENS’ opinion discusses the characteristics of a reservation area where the Tribe possesses authority to zone because it has preserved the “essential character of the reservation,” these characteristics betray a stereotyped and almost patronizing view
In sum, because JUSTICE STEVENS’ opinion proposes an approach to tribal authority radically different from, and inconsistent with, our past decisions, because this approach rests on irrelevant conjecture about congressional intent, and because the approach is generally unsound, I cannot concur even partially in JUSTICE STEVENS’ opinion, however partially attractive its results. Our past decisions and common sense compel a finding that the Tribe has zoning authority over all the lands within its reservation.
II
Having concluded that the Tribe has the inherent authority to zone non-Indian fee lands, the question remains whether this authority is exclusive or whether it is coextensive with the authority of the State acting through the county. This is not the place for an extended discussion of Indian pre-emption law. Suffice it to say that our cases recognize that the States have authority to exercise jurisdiction over non-Indian activities on the reservation, see, e. g., New Mexico v. Mescalero Apache Tribe, 462 U. S. 324 (1983), but that this authority is pre-empted if it either “unlawfully infringe[s] ‘on the right of reservation Indians to make their own
In my view, however, concurrent zoning jurisdiction by its very nature is unworkable. Concurrent zoning authority has the practical effect of nullifying the zoning authority of both sovereigns in every instance where the two establish different permissible land uses for the same tract of land. Presumably, under a scheme of concurrent jurisdiction, every proposed land use would have to satisfy the more stringent of the two competing zoning codes. Such a system obviously would defeat the efforts of both sovereigns to establish comprehensive plans for the systematic use of the lands within their respective jurisdictions.
This Court confronted a similar problem in Mescalero Apache. There, the State sought concurrent jurisdiction over non-Indian hunting and fishing on the reservation, even though the State‘s regulations were in conflict with, and sometimes more restrictive than, the Tribe‘s regulations. We held that state authority was pre-empted. “It is important to emphasize,” the Court stated, “that concurrent jurisdiction would effectively nullify the Tribe‘s authority to control hunting and fishing on the reservation. Concurrent jurisdiction would empower New Mexico wholly to supplant tribal regulations.” 462 U. S., at 338. The same holds true here. Concurrent jurisdiction would defeat the Tribe‘s abil-
This conclusion, though not derived from federal statutory law, finds considerable support in the Federal Government‘s active and “longstanding policy of encouraging tribal self-government.” Iowa Mutual Ins. Co. v. LaPlante, 480 U. S., at 14. Federal Indian policy “includes Congress’ overriding goal of encouraging ‘tribal self-sufficiency and economic development,‘” Mescalero Apache, 462 U. S., at 335, quoting White Mountain Apache, 448 U. S., at 143, and we have long recognized that tribal authority over on-reservation conduct must be “construed generously in order to comport with the federal policy of encouraging tribal independence.” Id., at 144. I shall not rehearse the many federal statutes noted by the Court of Appeals that recognize tribal sovereignty and encourage tribal self-government. Some of these specifically facilitate and encourage tribal management of Indian resources and promote the transfer of zoning authority from the Federal Government to the tribe. See Confeder-
Unlike the Court of Appeals, I find no room here for a remand to consider more closely the nature of the county‘s conflicting interests. When it is determined that the Tribe, which is the one entity that has the power to zone trust lands, also has the power to zone fee lands, the inherent unworkability of concurrent zoning requires the conclusion that the Tribe‘s power to zone, once it chooses to exercise that power, is exclusive. No further balancing of interests is required. Thus, I would hold that, as to both “open” and “closed” lands, the County of Yakima is without authority to zone reservation lands, including fee lands.10
Notes
“[T]he sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. ... They cannot enter into direct commercial or governmental relations with foreign nations. And, as we have recently held, they cannot try nonmembers in tribal courts.
“These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the power of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe.” Id., at 326 (citations omitted).
Clearly, nothing in this discussion suggests that tribes have lost all inherent sovereignty over tribal relations with non-Indians. (Indeed, the Court in Wheeler had no cause to address this issue.) Wheeler simply stands for the uncontroversial proposition that those specific aspects of inherent sovereignty that necessarily have been divested (criminal jurisdiction over non-Indians, alienation of land, and foreign relations) involve tribal relations with non-Indians. Notably, JUSTICE WHITE‘s proposed reading of Wheeler is in direct conflict with Montana, which explicitly recognizes that tribes retain some inherent authority over non-Indians. Montana v. United States, 450 U. S. 544, 565-566 (1981).