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Martin - Mid-Year Tribal Land Use Presentation

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Connie Sue Martin

This document discusses tribal land use and environmental protection. It provides an overview and background on federal Indian policy and its impact on reservation lands. It discusses the checkerboard pattern of land ownership that resulted from the Dawes Act and the jurisdictional issues that arise. It examines the Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation Supreme Court case that addressed tribal zoning authority over non-member fee lands. It also describes how some tribes have established their own land use planning and zoning codes to regulate activities on reservation lands.

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www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use and Environmental Protection WSBA Environmental & Land Use Mid-Year 2015 Connie Sue Martin
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Overview • Federal Indian policy and its impact on reservation lands • The checkerboard problem • Tribal jurisdiction over reservation residents and lands • Tribal zoning, land use planning, and environmental protection
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribes of the Northwest • 29 federally- recognized tribes in Washington • 10 federally- recognized tribes in Oregon • 4 federally recognized tribes in Idaho
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Historical Backdrop • Eras in Federal Indian Policy –Discovery and Conquest (pre-1789) –Treaty Making (1789-1871) –Allotment and Assimilation (1871-1928) –Reorganization Era (1928-1945) –Termination Era (1945-1961) –Self Determination (1961-present)
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Treaty Making (1789 – 1871) • Between 1854-1855, Governor Isaac Stevens negotiated 10 treaties with the tribes in the Washington territory • The Stevens treaties sought, in the face of increasing pressure of settlement, to provide a peaceful solution that would open vast swaths of land to white settlers, and relocate Indians to reservations
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Allotment/Assimilation (1871-1928) • The United States stopped making treaties in 1871 – Treaty-making was seen as an impediment to the assimilation of Indians into white society. • To encourage assimilation, Congress passed the General Allotment Act of 1887 (also called the Dawes Act).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Allotment/Assimilation (1871-1928) • The Dawes Act changed the communal ownership of tribal lands to individual ownership. – Each Indian male over 18 year old was given an allotment of acres and the rest of the tribal lands, considered to be “excess,” were sold to non-Indians. – The main goal of allotting tribal land was to assimilate natives into mainstream society.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Allotment/Assimilation (1871-1928) • By the time the Dawes Act was repealed by the Indian Reorganization Act in 1934, 90 million acres of land had been lost • Indian lands alienated under the Act were sold or transferred to non-Indians, but they were still, geographically, within the reservation boundaries
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Allotment/Assimilation (1871-1928) • As a result of the Dawes Act, trust lands, fee lands, and lands owned by tribes, individual Indians and non-Indians are mixed together on the reservation, creating a checkerboard pattern
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • State and county zoning regulations do not apply to trust lands • “[T]he application of state or local zoning regulations to Indian trust lands threatens the use and economic development of the main tribal resource ... handicaps the Indians ... living on the reservation and interferes with tribal government of the reservation.” Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975)
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Reservation Land Ownership
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Subject to two exceptions, “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana v. United States, 450 U.S. 544, 565 (1981). • Exceptions: – Consensual relationships with tribe or its members; – Activity that directly affects the tribe's political integrity, economic security, health, or welfare.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Jurisdictional disputes between local, county, state, federal and tribal governments regularly arise • Conflicts arise when both local and tribal zoning laws control reservation land use, resulting in different zoning laws applying to the same parcel of non-member fee property
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • A comprehensive zoning ordinance is a proper exercise of police power to protect the public health, safety, morals, and general welfare. Village of Euclid, Ohio v. Ambler Realty, 272 U.S. 365, 392-95 (1926). • Given the Village of Euclid decision, the second Montana exception should apply to authorize tribal zoning of on-reservation fee land. . .
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The Yakama Nation took the issue of its authority to regulate zoning and land use of on-reservation non-member fee lands to the United States Supreme Court in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 109 S. Ct. 2994 (1989).
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • 80% of the 1.3 million acres of Yakama reservation land is trust land, the remaining 20% is held in trust for members, or owned in fee by members and nonmembers. • Most of the trust land is in the Closed Area, which is predominantly forested and relatively undeveloped
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • There are few permanent residences in the Closed Area and the tribe limits access to tribal members, employees, and permittees • Most of the fee land is in the Open Area; area is mostly land used for grazing, agriculture, commercial, and residential purposes, with no access restrictions
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Brendale was the consolidation of two lower federal court decisions, both entitled Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside • Whiteside I involved non-member fee land in the Closed Area of the reservation, Whiteside II involved non-member fee land in the Open Area of the reservation
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside I: proposed development of land the tribe had closed to the public to protect the area's grazing, forest, and wildlife resources • Whiteside II: proposed development of agricultural land located within a portion of the reservation generally open to the public
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside I – Philip Brendale was a permittee and fee owner of 160 acres in the middle of the forested portion of the Closed Area. – Filed an application with Yakima County to subdivide a 20-acre parcel into ten 2-acre lots – Brendale planned to sell the lots, each with independent sewage and water facilities, as sites for summer cabins, recreational vehicles.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside I – County zoning law permitted the proposed development, while Yakama zoning law did not – Yakama Nation sued in federal district court to enjoin the proposed development
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside II – Stanley Wilkinson, a non-Indian fee landowner of an undeveloped 40-acre tract, applied to the county to subdivide 32 acres into 20 single family residential lots. – As in Whiteside I, the tribe’s zoning prohibited the proposed development while Yakima County zoning did not.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside II – The Yakama Nation opposed the development and asserted that the Yakima County lacked the authority to regulate Wilkinson's property – Tribe sued in federal district court to enjoin the county from applying its zoning law to the Wilkinson property.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • In both Whiteside I and Whiteside II, the ultimate question was whether the county or the tribe possessed the authority to zone non-Indian reservation land
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The 9th Circuit concluded that in both the Open Area and Closed Area, the tribe had the authority to regulate non-Indian fee landowners. • In Whiteside I, the tribe’s zoning law controlled because of the threat Brendale's project posed to tribal interests. • In Whiteside II, the court held that the tribe had the authority to zone Wilkinson's land, but remanded on the question of whether tribal or county zoning should apply
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The Supreme Court issued two plurality decisions in the appeals of Whiteside I and Whiteside II, consolidated as Brendale: – In the Closed Area, because more land was still reserved for the tribe's exclusive use, the tribe retained its power to shape the character of that land. – Thus, the tribe controlled the proposed development of Brendale's property
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The Supreme Court issued two plurality decisions in Brendale: – As to fee land in the Open Area, the Yakama Nation was unable to demonstrate that protectable interests would be threatened by Wilkinson's development – For that reason, the tribe lacked authority to zone Wilkinson's land
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The concurrent exercise of zoning laws precipitates incompatibility and conflict • Precludes either the tribe or the local municipality from obtaining the benefits of comprehensive land use regulation
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Unless tribes and local municipalities enact compatible zoning laws, or devise cooperative zoning schemes, land use on reservations will not follow any predictable, logical pattern.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning • One way that tribes have worked around this jurisdictional issue is by entering into cooperative agreements with adjacent municipalities. • Swinomish Tribe’s 1996 Joint Comprehensive Plan – The first comprehensive planning effort attempted between a tribe and a county in the nation.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning – Articulated goals and policies to guide the stewardship of reservation lands and natural resources and outlined a framework for an implementation strategy – Created a procedure for reviewing land use applications, dispute resolution process to ensure consistency in land use matters administered by the two governments
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning • A number of tribes have adopted zoning ordinances and established comprehensive systems of land use regulations.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning • Tulalip Tribal Code, Title 7: LAND USE – “[T]he Tulalip Tribes . . . hereby assert and exercise its jurisdiction over the uses of lands located within said exterior boundaries[of the reservation], and does impose upon said lands . . . those land use controls that may be hereafter promulgated. . .” Tribal Code, §7.05.010 • Includes a Comprehensive Plan
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Zoning Codes • Tulalip Tribal Community Development – Enforces the tribal zoning code, manages development, permitting, mapping, and GIS for balanced growth, resource conservation, and social and economic well-being. – Prepares, updates and implements land use plans, development regulations, and maps
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Zoning Codes • The Tulalip Tribe also created the Consolidated Borough of Quil Ceda Village, a “municipal body politic and corporate,” a municipality separate and distinct from the Tulalip Tribe.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Zoning Codes – First federally-chartered municipality since Congress chartered Washington, D.C. in 1871 – Separate status allows Village to encourage outside investment in a commercial center without binding the entire Reservation. • High-end outlet mall • Big-box stores (Wal-Mart, Home Depot). – Preserves the rural character of the rest of the reservation while encouraging development of the shopping center area.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Zoning Codes • Can be used to protect culturally significant plant and animal species – Outright prohibition on hunting or gathering in particular areas: create “closed areas” that are closed to legal hunting, fishing, trapping, access or other activities in order to protect culturally significant species – Impose time/place/manner limitations on hunting or gathering in particular areas: create areas where legal hunting, fishing, or trapping activities have been restricted to specified seasons, means or methods
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Conservation Districts • Conservation districts are local units of government established under state law to carry out natural resource management programs at the local level. • Districts work with cooperating landowners and operators to help them manage and protect land and water resources on private lands and many public lands in the US.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Conservation Districts • Conservation districts work with landowners on a voluntary basis, providing incentive- based conservation help on private lands. • In Washington, RCW 89.08 authorizes conservation districts and provides the framework for their activities.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Conservation Districts • The USDA, through its Natural Resources Conservation Service (NRCS), enables the creation of Tribal Conservation Districts through a three-party Memorandum of Understanding – Tribal Government – Tribal Conservation District – Department of Agriculture
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Conservation Districts • TCDs function to make technical, financial, and educational resources available, and focus or coordinate them so that they meet the needs of the local land user for conservation, development, restoration and preservation of soil, water, air, plants, animals, and related resources.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Conservation Districts • Examples of TCD projects might include conservation practices on agricultural lands to address animal waste, sedimentation, noxious weeds, insufficient water supply for livestock or irrigation, pesticide or nutrient contamination of ground or surface waters, at-risk species habitat, or invasive species.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Conservation Districts • There are approximately 40 TCDs across the country, including the St. Regis Mohawk Tribe in New York, the Kiowa Tribe of Oklahoma, the White Earth Tribe of Minnesota, and the Tyonek Tribe of Alaska.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • A voluntary, incentive- based, and market- driven approach to preserve land and steer development growth away from rural and resource lands.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • Based on free-market principles and prices that would motivate landowner and developer participation. – Rural landowners realize economic return through the sale of development rights to private developers who are able to build more compactly in designated unincorporated urban areas and partner cities.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • When a landowner chooses to separate some, or all, development rights for sale, the property is preserved through a conservation easement. • Landowners can retain development rights on their property for future use, and the land remains in private ownership.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • Tribes (as landowners or developers) may participate in existing TDR programs, such as King County’s, for off-reservation land
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • Tribal TDR programs may be established under tribal codes for on-reservation development – encourage the preservation of open space or environmentally sensitive areas of the reservation – permit more intensive uses in more appropriate areas.
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Sovereignty and Zoning • Zoning, land use planning, and land use controls are tools tribes can and do use to protect tribal land and resources from the negative effects of on-reservation development and land uses. – Separate, control, and prevent incompatible uses of neighboring properties – Protect tribal natural resources and the reservation environment
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Sovereignty and Zoning • In addition to traditional zoning and land use planning tools, there are other, innovative means of controlling the use, development, and preservation of reservation lands and resources available to tribal governments – Tribal TDR programs – Tribal Conservation Districts
www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use and Environmental Protection WSBA Environmental & Land Use Mid-Year 2015 Connie Sue Martin

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Martin - Mid-Year Tribal Land Use Presentation

  • 1. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use and Environmental Protection WSBA Environmental & Land Use Mid-Year 2015 Connie Sue Martin
  • 2. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Overview • Federal Indian policy and its impact on reservation lands • The checkerboard problem • Tribal jurisdiction over reservation residents and lands • Tribal zoning, land use planning, and environmental protection
  • 3. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribes of the Northwest • 29 federally- recognized tribes in Washington • 10 federally- recognized tribes in Oregon • 4 federally recognized tribes in Idaho
  • 4. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Historical Backdrop • Eras in Federal Indian Policy –Discovery and Conquest (pre-1789) –Treaty Making (1789-1871) –Allotment and Assimilation (1871-1928) –Reorganization Era (1928-1945) –Termination Era (1945-1961) –Self Determination (1961-present)
  • 5. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Treaty Making (1789 – 1871) • Between 1854-1855, Governor Isaac Stevens negotiated 10 treaties with the tribes in the Washington territory • The Stevens treaties sought, in the face of increasing pressure of settlement, to provide a peaceful solution that would open vast swaths of land to white settlers, and relocate Indians to reservations
  • 6. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Allotment/Assimilation (1871-1928) • The United States stopped making treaties in 1871 – Treaty-making was seen as an impediment to the assimilation of Indians into white society. • To encourage assimilation, Congress passed the General Allotment Act of 1887 (also called the Dawes Act).
  • 7. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Allotment/Assimilation (1871-1928) • The Dawes Act changed the communal ownership of tribal lands to individual ownership. – Each Indian male over 18 year old was given an allotment of acres and the rest of the tribal lands, considered to be “excess,” were sold to non-Indians. – The main goal of allotting tribal land was to assimilate natives into mainstream society.
  • 8. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Allotment/Assimilation (1871-1928) • By the time the Dawes Act was repealed by the Indian Reorganization Act in 1934, 90 million acres of land had been lost • Indian lands alienated under the Act were sold or transferred to non-Indians, but they were still, geographically, within the reservation boundaries
  • 9. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Allotment/Assimilation (1871-1928) • As a result of the Dawes Act, trust lands, fee lands, and lands owned by tribes, individual Indians and non-Indians are mixed together on the reservation, creating a checkerboard pattern
  • 10. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
  • 11. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • State and county zoning regulations do not apply to trust lands • “[T]he application of state or local zoning regulations to Indian trust lands threatens the use and economic development of the main tribal resource ... handicaps the Indians ... living on the reservation and interferes with tribal government of the reservation.” Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975)
  • 12. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Reservation Land Ownership
  • 13. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Subject to two exceptions, “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana v. United States, 450 U.S. 544, 565 (1981). • Exceptions: – Consensual relationships with tribe or its members; – Activity that directly affects the tribe's political integrity, economic security, health, or welfare.
  • 14. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
  • 15. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Jurisdictional disputes between local, county, state, federal and tribal governments regularly arise • Conflicts arise when both local and tribal zoning laws control reservation land use, resulting in different zoning laws applying to the same parcel of non-member fee property
  • 16. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • A comprehensive zoning ordinance is a proper exercise of police power to protect the public health, safety, morals, and general welfare. Village of Euclid, Ohio v. Ambler Realty, 272 U.S. 365, 392-95 (1926). • Given the Village of Euclid decision, the second Montana exception should apply to authorize tribal zoning of on-reservation fee land. . .
  • 17. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The Yakama Nation took the issue of its authority to regulate zoning and land use of on-reservation non-member fee lands to the United States Supreme Court in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 109 S. Ct. 2994 (1989).
  • 18. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • 80% of the 1.3 million acres of Yakama reservation land is trust land, the remaining 20% is held in trust for members, or owned in fee by members and nonmembers. • Most of the trust land is in the Closed Area, which is predominantly forested and relatively undeveloped
  • 19. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • There are few permanent residences in the Closed Area and the tribe limits access to tribal members, employees, and permittees • Most of the fee land is in the Open Area; area is mostly land used for grazing, agriculture, commercial, and residential purposes, with no access restrictions
  • 20. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Brendale was the consolidation of two lower federal court decisions, both entitled Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside • Whiteside I involved non-member fee land in the Closed Area of the reservation, Whiteside II involved non-member fee land in the Open Area of the reservation
  • 21. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside I: proposed development of land the tribe had closed to the public to protect the area's grazing, forest, and wildlife resources • Whiteside II: proposed development of agricultural land located within a portion of the reservation generally open to the public
  • 22. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside I – Philip Brendale was a permittee and fee owner of 160 acres in the middle of the forested portion of the Closed Area. – Filed an application with Yakima County to subdivide a 20-acre parcel into ten 2-acre lots – Brendale planned to sell the lots, each with independent sewage and water facilities, as sites for summer cabins, recreational vehicles.
  • 23. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside I – County zoning law permitted the proposed development, while Yakama zoning law did not – Yakama Nation sued in federal district court to enjoin the proposed development
  • 24. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside II – Stanley Wilkinson, a non-Indian fee landowner of an undeveloped 40-acre tract, applied to the county to subdivide 32 acres into 20 single family residential lots. – As in Whiteside I, the tribe’s zoning prohibited the proposed development while Yakima County zoning did not.
  • 25. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Whiteside II – The Yakama Nation opposed the development and asserted that the Yakima County lacked the authority to regulate Wilkinson's property – Tribe sued in federal district court to enjoin the county from applying its zoning law to the Wilkinson property.
  • 26. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • In both Whiteside I and Whiteside II, the ultimate question was whether the county or the tribe possessed the authority to zone non-Indian reservation land
  • 27. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The 9th Circuit concluded that in both the Open Area and Closed Area, the tribe had the authority to regulate non-Indian fee landowners. • In Whiteside I, the tribe’s zoning law controlled because of the threat Brendale's project posed to tribal interests. • In Whiteside II, the court held that the tribe had the authority to zone Wilkinson's land, but remanded on the question of whether tribal or county zoning should apply
  • 28. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The Supreme Court issued two plurality decisions in the appeals of Whiteside I and Whiteside II, consolidated as Brendale: – In the Closed Area, because more land was still reserved for the tribe's exclusive use, the tribe retained its power to shape the character of that land. – Thus, the tribe controlled the proposed development of Brendale's property
  • 29. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The Supreme Court issued two plurality decisions in Brendale: – As to fee land in the Open Area, the Yakama Nation was unable to demonstrate that protectable interests would be threatened by Wilkinson's development – For that reason, the tribe lacked authority to zone Wilkinson's land
  • 30. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • The concurrent exercise of zoning laws precipitates incompatibility and conflict • Precludes either the tribe or the local municipality from obtaining the benefits of comprehensive land use regulation
  • 31. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. The Problem of Checkerboard Title • Unless tribes and local municipalities enact compatible zoning laws, or devise cooperative zoning schemes, land use on reservations will not follow any predictable, logical pattern.
  • 32. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning • One way that tribes have worked around this jurisdictional issue is by entering into cooperative agreements with adjacent municipalities. • Swinomish Tribe’s 1996 Joint Comprehensive Plan – The first comprehensive planning effort attempted between a tribe and a county in the nation.
  • 33. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning – Articulated goals and policies to guide the stewardship of reservation lands and natural resources and outlined a framework for an implementation strategy – Created a procedure for reviewing land use applications, dispute resolution process to ensure consistency in land use matters administered by the two governments
  • 34. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning • A number of tribes have adopted zoning ordinances and established comprehensive systems of land use regulations.
  • 35. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning • Tulalip Tribal Code, Title 7: LAND USE – “[T]he Tulalip Tribes . . . hereby assert and exercise its jurisdiction over the uses of lands located within said exterior boundaries[of the reservation], and does impose upon said lands . . . those land use controls that may be hereafter promulgated. . .” Tribal Code, §7.05.010 • Includes a Comprehensive Plan
  • 36. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use Planning
  • 37. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Zoning Codes • Tulalip Tribal Community Development – Enforces the tribal zoning code, manages development, permitting, mapping, and GIS for balanced growth, resource conservation, and social and economic well-being. – Prepares, updates and implements land use plans, development regulations, and maps
  • 38. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Zoning Codes • The Tulalip Tribe also created the Consolidated Borough of Quil Ceda Village, a “municipal body politic and corporate,” a municipality separate and distinct from the Tulalip Tribe.
  • 39. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Zoning Codes – First federally-chartered municipality since Congress chartered Washington, D.C. in 1871 – Separate status allows Village to encourage outside investment in a commercial center without binding the entire Reservation. • High-end outlet mall • Big-box stores (Wal-Mart, Home Depot). – Preserves the rural character of the rest of the reservation while encouraging development of the shopping center area.
  • 40. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Zoning Codes • Can be used to protect culturally significant plant and animal species – Outright prohibition on hunting or gathering in particular areas: create “closed areas” that are closed to legal hunting, fishing, trapping, access or other activities in order to protect culturally significant species – Impose time/place/manner limitations on hunting or gathering in particular areas: create areas where legal hunting, fishing, or trapping activities have been restricted to specified seasons, means or methods
  • 41. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Conservation Districts • Conservation districts are local units of government established under state law to carry out natural resource management programs at the local level. • Districts work with cooperating landowners and operators to help them manage and protect land and water resources on private lands and many public lands in the US.
  • 42. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Conservation Districts • Conservation districts work with landowners on a voluntary basis, providing incentive- based conservation help on private lands. • In Washington, RCW 89.08 authorizes conservation districts and provides the framework for their activities.
  • 43. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
  • 44. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Conservation Districts • The USDA, through its Natural Resources Conservation Service (NRCS), enables the creation of Tribal Conservation Districts through a three-party Memorandum of Understanding – Tribal Government – Tribal Conservation District – Department of Agriculture
  • 45. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Conservation Districts • TCDs function to make technical, financial, and educational resources available, and focus or coordinate them so that they meet the needs of the local land user for conservation, development, restoration and preservation of soil, water, air, plants, animals, and related resources.
  • 46. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Conservation Districts • Examples of TCD projects might include conservation practices on agricultural lands to address animal waste, sedimentation, noxious weeds, insufficient water supply for livestock or irrigation, pesticide or nutrient contamination of ground or surface waters, at-risk species habitat, or invasive species.
  • 47. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Conservation Districts • There are approximately 40 TCDs across the country, including the St. Regis Mohawk Tribe in New York, the Kiowa Tribe of Oklahoma, the White Earth Tribe of Minnesota, and the Tyonek Tribe of Alaska.
  • 48. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • A voluntary, incentive- based, and market- driven approach to preserve land and steer development growth away from rural and resource lands.
  • 49. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • Based on free-market principles and prices that would motivate landowner and developer participation. – Rural landowners realize economic return through the sale of development rights to private developers who are able to build more compactly in designated unincorporated urban areas and partner cities.
  • 50. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • When a landowner chooses to separate some, or all, development rights for sale, the property is preserved through a conservation easement. • Landowners can retain development rights on their property for future use, and the land remains in private ownership.
  • 51. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights
  • 52. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights
  • 53. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • Tribes (as landowners or developers) may participate in existing TDR programs, such as King County’s, for off-reservation land
  • 54. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Transfer of Development Rights • Tribal TDR programs may be established under tribal codes for on-reservation development – encourage the preservation of open space or environmentally sensitive areas of the reservation – permit more intensive uses in more appropriate areas.
  • 55. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Sovereignty and Zoning • Zoning, land use planning, and land use controls are tools tribes can and do use to protect tribal land and resources from the negative effects of on-reservation development and land uses. – Separate, control, and prevent incompatible uses of neighboring properties – Protect tribal natural resources and the reservation environment
  • 56. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Sovereignty and Zoning • In addition to traditional zoning and land use planning tools, there are other, innovative means of controlling the use, development, and preservation of reservation lands and resources available to tribal governments – Tribal TDR programs – Tribal Conservation Districts
  • 57. www.schwabe.com Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C. Tribal Land Use and Environmental Protection WSBA Environmental & Land Use Mid-Year 2015 Connie Sue Martin

Editor's Notes

  1. Historical perspective is of central importance in the field of Indian law. To understand 21st century Indian law and policy, you have to be familiar with developments that date back to the 16th, 17th, and 18th centuries, because those developments continue to shape federal Indian law and policy today. When I first started representing tribes, I read a lot of Indian history. I grew up in Virginia and Ohio, and there aren’t any federally recognized tribes there because we killed or moved them all. I read books like “Bury My Heart at Wounded Knee,” and “I Will Fight no More Forever: Chief Joseph and the Nez Perce War” – after I finished that one, I kept apologizing to my client, whose ancestors were Nez Perce.
  2. This is the mechanism by which reservations became “checkerboarded” – with non-Indians acquiring land in fee within what had been the reservation boundaries.
  3. Fort Berthold Indian Reservation, North Dakota
  4. Crow Reservation, Montana
  5. Nez Perce Indian Reservation, Idaho