Citation Numbers: 71 Op. Att'y Gen. 191
Judges: BRONSON C. La FOLLETTE, Attorney General
Filed Date: 10/19/1982
Status: Precedential
Modified Date: 4/15/2017
JAMES B. MOHR, District Attorney Vilas County
You ask whether the Lac du Flambeau Band of Lake Superior Chippewa Indians has exclusive jurisdiction to regulate land use *Page 192 within the outer boundary of the Lac du Flambeau Reservation. You also ask whether the Band has authority to impose a moratorium on land division within the outer boundary of its reservation. It is my understanding that the Band recently rescinded its ordinance imposing such a moratorium and has no plan to reenact the ordinance within the foreseeable future. Consequently, this opinion will not address your second inquiry.
In this opinion, land tenure within the outer boundary of the Lac du Flambeau Reservation will be referred to either as "Indian land" or "fee land." Indian land includes land held in trust by the federal government, either for the Band or for individual Band members, together with land owned in fee by the Band and by Band members. Fee land refers to all land other than Indian land.
In my opinion, the Band has exclusive jurisdiction to zone all Indian land, and has jurisdiction concurrent with Vilas and Iron Counties to zone fee land located in each county unless it is established that county zoning would infringe on tribal self-government. If the exercise of county zoning jurisdiction infringes on tribal self-government, the Band would have exclusive zoning jurisdiction within the reservation.
The United States Supreme Court has repeatedly stated that Indian tribes retain attributes of sovereignty over both their members and their territory. See Merrion v. Jicarilla ApacheTribe,
An Indian tribe has the power to zone all land within its reservation unless divested of such power by federal law or necessary implication of its dependent status. Cf. Merrion;Washington v. Confederated Tribes,
In my opinion, the state has no power to zone Indian lands within the outer boundary of the Lac du Flambeau Reservation.Santa Rosa Band of Indians v. Kings County,
The authority of local governments to regulate land use through zoning was recognized by the Supreme Court in Village of Euclid,Ohio v. Ambler Realty Co.,
The basic test for determining whether state or local governments have any regulatory authority within reservation boundaries was considered by the Supreme Court in Williams v.Lee,
Since a tribe has a significant governmental interest in controlling any conduct or activity within its territorial jurisdiction that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Montana,
If both plans are substantially similar, then the need for dual regulation is minimized. Because state regulation cannot be applied to Indian lands, tribal zoning appears to be the only means to achieve comprehensive land use planning on reservations with mixed land ownership.
Two important related issues that arise in the context of tribal zoning of all reservation land which involve the rights of non-Indian land-owners merit comment. First, because non-Indians do not usually have the right to participate in tribal governments, there must be concern for the equal protection and property rights of non-Indians in the administration of the zoning plan. Second, non-Indians must have a judicial forum within which to pursue those rights.
Under the Indian Civil Rights Act,
These provisions, substantially similar to the relevant provisions of the United States Constitution, protect non-Indians as well as Indians in the enjoyment of their rights vis-a-vis tribal government. The rights of non-Indians are enforceable in the tribal courts. "Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians." Martinez,
While there may be some concern that non-Indians are not represented in tribal governments, the Supreme Court has held that fact to be immaterial. Williams,
In my opinion, the Lac du Flambeau Indian Band has exclusive authority to zone Indian land, and has concurrent jurisdiction with the state to zone fee land within the tribe's reservation boundaries unless county zoning would infringe on tribal self-government.
BCL:JDN
mescalero-apache-tribe-v-state-of-new-mexico-and-harold-f-olson , 677 F.2d 55 ( 1982 )
James D. Knight v. The Shoshone and Arapahoe Indian Tribes ... , 670 F.2d 900 ( 1982 )
confederated-salish-and-kootenai-tribes-of-the-flathead-reservation , 665 F.2d 951 ( 1982 )
mescalero-apache-tribe-v-state-of-new-mexico-and-william-s-huey , 630 F.2d 724 ( 1980 )
Village of Euclid v. Ambler Realty Co. , 47 S. Ct. 114 ( 1926 )
Village of Belle Terre v. Boraas , 94 S. Ct. 1536 ( 1974 )
Opinion No. Oag 94-76, (1976) , 65 Op. Att'y Gen. 276 ( 1976 )
Washington v. Confederated Tribes of the Colville Indian ... , 100 S. Ct. 2069 ( 1980 )
United States v. Mazurie , 95 S. Ct. 710 ( 1975 )
Montana v. United States , 101 S. Ct. 1245 ( 1981 )
Merrion v. Jicarilla Apache Tribe , 102 S. Ct. 894 ( 1982 )