Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation/Concurrence Blackmun

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Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation by Harry Blackmun
Opinion of the Court
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Case Syllabus
Opinion of the Court
Concurring Opinion
Blackmun


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 Justice STEVENS' opinion reaches the right result for the wrong reason with respect to the Tribe's authority to zone non-Indian fee lands in the closed portion of the reservation, I concur in the judgment in No. 87-1662. I shall discuss Justice WHITE's and Justice STEVENS' opinions seriatim.

* Eight years ago, this Court decided Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (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, 101 S.Ct., 1258, 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 Court's other relevant decisions, it is evident that Montana must be read to recognize the inherent authority of tribes to exercise civil jurisdiction over non-Indian activities on tribal reservations where those activities, as they do in the case of land use, implicate a significant tribal interest.

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, 101 S.Ct., at 1257. 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, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (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 principally involving external powers of sovereignty where the exercise of tribal authority is necessarily inconsistent with the tribes' dependent status. See, e.g., Unite States v. Wheeler, 435 U.S. 313, 326, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978) (implicit divestiture only of powers "necessarily . . . lost by virtue of a tribe's dependent status"); Colville, 447 U.S., at 153-154, 100 S.Ct., at 2081 (implicit divestiture only "where the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government, as when the tribes seek to engage in foreign relations, alienate their lands to non-Indians without federal consent, or prosecute non-Indians in tribal courts which do not accord the full protections of the Bill of Rights"). [3]

Indeed, what is most remarkable about this Court's j risprudence of inherent tribal sovereignty is that, except for those few aspects of sovereignty recognized in the Cherokee Cases as necessarily divested, the Court only once prior to Montana (and never thereafter) has found an additional sovereign power to have been relinquished upon incorporation. In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), we held that tribes have no inherent criminal jurisdiction over non-Indians in tribal court. In light of the nearly universal understanding dating from the origins of this country's dealings with the tribes that they do not possess criminal jurisdiction over non-Indians except as permitted by treaty, and in light of the Federal Constitution's extraordinary protections against intrusions on personal liberty, we concluded that inherent criminal jurisdiction over non-Indians is inconsistent with the dependent status of the tribes. Id., at 208-212, 98 S.Ct., at 1020-1023. But our decision in Colville, which was subsequent to Oliphant, expressly establishes that nothing in Oliphant negates our historical understanding that the tribes retain substantial civil jurisdiction over non-Indians. [4] We there observed that the Federal Government explicitly had recognized for more than a century that "Indian tribes possess a broad measure of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest," 447 U.S., at 152, 100 S.Ct., at 2080, and noted that the historical understandings regarding civil jurisdiction "differ sharply" from those underlying Oliphant. 447 U.S., at 153, 100 S.Ct., at 2081 (upholding inherent tribal authority to tax on-reservation cigarette sales to non-Indians).

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, 102 S.Ct. 894, 71 L.Ed.2d 21 (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, 102 S.Ct., at 903. And in Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (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, 107 S.Ct., at 978 (citations omitted). [5] These cases, like their predecessors, clearly recognize that tribal civil jurisdiction over non-Indians on reservation lands is consistent with the dependent status of the tribes.

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, 101 S.Ct., at 1257-1259, citing Fisher v. District Court of Sixteenth Judicial District of Montana, 424 U.S. 382, 386, 96 S.Ct. 943, 946, 47 L.Ed.2d 106 (1976); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 171, 93 S.Ct. 1257, 1261, 36 L.Ed.2d 129 (1973); and Williams v. Lee, 358 U.S. 217, 219-220, 79 S.Ct. 269, 270-271, 3 L.Ed.2d 251 (1959). Not surprisingly, and of critical importance for deciding the instant cases, the Montana presumption has found no place in our subsequent decisions discussing inherent sovereignty. [6] See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985); Iowa Mutual Ins. Co., supra.

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, 101 S.Ct., at 1258. 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 direc 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, 101 S.Ct., at 1258. 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 recognize that tribes may regulate the on-reservation conduct of non-Indians whenever a significant tribal interest is threatened or directly affected. So construed, Montana fits with relative ease into the constellation of this Court's sovereignty jurisprudence.

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, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975) (emphasis added); see also White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151, 100 S.Ct. 2578, 2587, 65 L.Ed.2d 665 (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, 93 S.Ct. 2245, 2254-2255, 37 L.Ed.2d 92 (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 and Kootenai Tribes, 425 U.S. 463, 478, 96 S.Ct. 1634, 1643, 48 L.Ed.2d 96 (1976), quoting Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 358, 82 S.Ct. 424, 428, 7 L.Ed.2d 346 (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, 27 S.Ct. 777, 51 L.Ed. 334 (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 with the usual powers of municipalities, nor by the ownership nor occupancy of the land within its territorial jurisdiction by citizens or foreigners.' " Merrion, 455 U.S., at 143, 102 S.Ct., at 905, quoting Buster v. Wright, 135 F., at 952 (emphasis added in Merrion ).

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, 101 S.Ct., at 1258, 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, 94 S.Ct. 1536, 1543, 39 L.Ed.2d 797 (1974) (MARSHALL, J., dissenting), quoted in part and with approval in Young v. American Mini Theatres, Inc., 427 U.S. 50, 80, 96 S.Ct. 2440, 2457, 49 L.Ed.2d 310 (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, 80 S.Ct. 543, 567, 4 L.Ed.2d 584 (1960) (Black, J., dissenting). And how can anyone doubt that a tribe's inability to zone substantial tracts of fee land w thin 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, 102 S.Ct., at 903. 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. A finding of inherent zoning authority here would in no way conflict with Montana's actual holding. As we explicitly recognized in Mescalero Apache, 462 U.S., at 331, n. 12, 103 S.Ct., at 2384, n. 12, the critical difficulty in Montana was the Tribe's failure even to allege that the non-Indians whose fishing and hunting it sought to regulate were in any measure affecting an identifiable tribal interest. See 450 U.S., at 558, n. 6, 101 S.Ct., at 1254, n. 6. Indeed, Montana, as it subsequently appears in our cases, stands for no more than that tribes may not assert their civil jurisdiction over nonmembers on fee lands absent a showing that, in Montana's words, the non-Indians' "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, 101 S.Ct., at 1258.

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. Montana's literal language does not require, as he claims, a parcel-by-parcel, use-by-use determination whether a proposed use of fee land will threaten the political integrity, economic security, or health or welfare of the tribe. The threat to the tribe does not derive solely from the proposed uses of specific parcels of fee lands (which admittedly would vary over time and place). The threat stems from the loss of the general and longer term advantages of comprehensive land management.

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 zoning authority controls the use of their land, adjoining parcels of land throughout the "open" area of the reservation (and throughout the entire reservation under Justice WHITE's theory) will be zoned by different zoning authorities with competing and perhaps inconsistent land-use priorities. [7] This, in practice, will be nothing short of a nightmare, nullifying the efforts of both sovereigns to segregate incompatible land uses and exacerbating the already considerable tensions that exist between local and tribal governments in many parts of the Nation about the best use of reservation lands.

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 activities as to which they have no valid interest. [8] Zoning is clearly not such a case.

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 inconsist nt 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.

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 is evident from my discussion of Justice WHITE's opinion, this conclusion stands in flat contradiction to every relevant Indian sovereignty case that this Court has decided.

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, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962); Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973); Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (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, 82 S.Ct., at 427-429. 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, 93 S.Ct., at 2248.

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 of land sold in fee to nonmembers who lack any voice in setting tribal policy." Ante, at 437; see also ante, at 446-447. Moreover, even if Justice STEVENS is right about congressional intent at the time of the Dawes Act, why should this matter? "The policy of allotment and sale of surplus reservation land was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, now amended and codified as 25 U.S.C. § 461 et seq." Mattz, 412 U.S., at 496, n. 18, 93 S.Ct., at 2254, n. 18; see also iMoe, 425 U.S., at 479, 96 S.Ct., at 1644. Surely, in considering whether Congress intended tribes to enjoy civil jurisdiction, including zoning authority, over non-Indian fee lands in reservation areas where non-Indian ownership predominates, this Court should direct its attention not to the intent of the Congress that passed the Dawes Act, but rather to the intent of the Congress that repudiated the Dawes Act, and established the Indian policies to which we are heir. This 1934 Congress, as definitively interpreted by the Executive Branch at the time, intended that tribal civil jurisdiction extend over " 'all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders.' " See n. 4, supra, quoting Powers of Indian Tribes, 55 I.D. 14, 50 (1934).

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 of Indians and reservation life. The opinion describes the "closed area" of the Yakima Reservation as "pristine," and emphasizes that it is spiritually significant to the Tribe and yields natural foods and medicines. Ante, at 439, 439-440. The opinion then contrasts this unadulterated portion of the reservation with the "open area," which is "marked by 'residential and commercial developmen[t].' " Ante, at 445 (citation omitted). In my view, even under Justice STEVENS' analysis, it must not be the case that tribes can retain the "essential character" of their reservations (necessary to the exercise of zoning authority), ibid, only if they forgo economic development and maintain those reservations according to a single, perhaps quaint, view of what is characteristically "Indian" today.

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.

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, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983), but that this authority is pre-empted if it either "unlawfully infringe[s] 'on the right of reservation Indians to make their own laws and be ruled by them,' " White Mountain Apache, 448 U.S., at 142, 100 S.Ct., at 2582, quoting Williams v. Lee, 358 U.S., at 220, 79 S.Ct., at 270, or "interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are suffi ient to justify the assertion of state authority," Mescalero Apache, 462 U.S., at 334, 103 S.Ct., at 2386. Applying this test, the Court has recognized coextensive state and tribal civil jurisdiction where the exercise of concurrent authority does not do violence to the rights of either sovereign. See, e.g., Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (state taxation of on-reservation cigarette purchases does not intrude upon or diminish the Tribe's authority also to tax).

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, 103 S.Ct., at 2388. The same holds true here. Concurrent jurisdiction would defeat the Tribe's ability to regulate land use on reservation fee lands and, moreover, significantly would impair its ability to zone its trust lands, which in many areas are intermingled with lands over which the State would exercise controlling authority. Accordingly, although the State may assert zoning authority on the reservation in areas where the tribe has not exercised its zoning powers, once a tribe chooses to assert its zoning authority, that authority must be exclusive. [9]

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, 107 S.Ct., at 975. Federal Indian policy "includes Congress' overriding goal of encouraging 'tribal self-sufficiency and economic development,' " Mescalero Apache, 462 U.S., at 335, 103 S.Ct., at 2387, quoting White Mountain Apache, 448 U.S., at 143, 100 S.Ct., at 2583, 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, 100 S.Ct., at 2584. 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- ated Tribes and Bands of Yakima Indian Nation v. Whiteside, 828 F.2d 529, 533 (CA9 1987).

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[edit]

^1  F. Cohen, Handbook of Federal Indian Law 235 (1982). See also Worcester v. Georgia, 6 Pet. 515, 560-561, 8 L.Ed. 483 (1832): "[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence-its right to self-government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state."

^2  See Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831); Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832); see also Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681 (1823).

^3  Justice WHITE's opinion asserts that Wheeler "made clear" that all tribal regulatory authority over relations with non-Indians is necessarily inconsistent with their dependent status and, therefore, divested. Ante, at 427. Wheeler says no such thing, as is clear when Justice WHITE's opinion's selective quotation is placed in context. The issue in Wheeler was whether the conviction of an Indian in tribal court on a charge of contributing to the delinquency of a minor was a federal prosecution such that a second criminal proceeding arising from the same incident would be barred under the Double Jeopardy Clause. The resolution of this issue turned on whether the Tribe's criminal jurisdiction over the Indian defendant stemmed from its own inherent authority or, instead, from federal authority delegated to the Tribe by Congress. After discussing at some length the general rule that Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status, 435 U.S., at 323, 98 S.Ct., at 1086, the Court held that the Tribe retained inherent authority to punish Indian offenders. The Court first noted that Congress, far from divesting tribes of this power, had consistently recognized it. The Court then turned to the question whether criminal jurisdiction was necessarily divested by virtue of the dependent status of the tribes. The Court stated:

"[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, 98 S.Ct., at 1088 (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, 101 S.Ct. 1245, 1258-1259, 67 L.Ed.2d 493 (1981).

^4  Our understanding is consistent with the definitive administrative interpretation of inherent Indian sovereignty: "But over all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign power of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business." Powers of Indian Tribes, 55 I.D. 14, 50 (1934).

^5  Justice WHITE would read Iowa Mutual Ins. Co. v. La Plante, as not reaching the question whether tribal courts have civil jurisdiction over non-Indians, and dismisses the case as establishing no more than an "exhaustion rule" permitting tribal courts to determine their jurisdiction, or lack thereof, in the first instance. Ante, at 427, n. 10. See also National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L. d.2d 818 (1985). Justice WHITE, however, has read too little. In holding that the issue of jurisdiction over a civil suit brought against a non-Indian arising from a tort occurring on reservation land must be resolved in the tribal courts in the first instance, Iowa Mutual does reaffirm the exhaustion rule established in National Farmers Union. But Iowa Mutual also stands for the proposition that civil jurisdiction over non-Indians is a recognized part of inherent tribal sovereignty and exists "unless affirmatively limited by a specific treaty provision or federal statute." 480 U.S., at 18, 107 S.Ct., at 977.

^6  Indeed, the only citations that I have found of Montana's rule governing tribal sovereignty appear in the dissent to our decision upholding tribal taxing authority over non-Indians in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 171, 102 S.Ct. 894, 919, 71 L.Ed.2d 21 (1982), and in a dissent from the denial of certiorari in a case where the Court of Appeals upheld tribal civil jurisdiction over non-Indians. City of Polson v. Confederated Salish and Kootenai Tribes, 459 U.S. 977, 103 S.Ct. 314, 74 L.Ed.2d 291 (1982).

^7  The checkerboarding problem is evident in this case: Wilkinson's property is bounded by trust land to the north, and fee land to the south, east, and west. Yakima Indian Nation v. Whiteside, 617 F.Supp. 750, 754 (ED Wash.1985). Other fee lands are "scattered throughout the reservation in a checkerboard pattern." Confederated Tribes and Bands of Yakima Indian Nation v. Whiteside, 828 F.2d 529, 531 (CA9 1987).

^8  "The complaint in this case did not allege that non-Indian hunting and fishing on reservation lands has impaired" the tribe's hunting and fishing rights. Montana, 450 U.S., at 558, n. 6, 101 S.Ct., at 1254, n. 6. Moreover, the complaint "did not allege that non-Indian hunting and fishing on fee lands imperil[ed] the subsistence or welfare of the Tribe." Id., at 566, 101 S.Ct., at 1259.

^9  It may be that on some reservations, including the Yakima Reservation, there are essentially self-contained, definable, areas in which non-Indian fee lands so predominate that the tribe has no significant interest in controlling land use. I note that the Yakima Reservation includes three incorporated towns-Harrah, Toppenish, and Wapato-that comprise almost exclusively non-Indian fee lands. Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside, 828 F.2d, at 531. Since the Tribe never has attempted to zone lands within the incorporated towns, this litigation does not present the difficult question whether the Tribe's interest in comprehensive zoning is sufficient to justify its exercise of zoning authority over a discrete portion of the reservation which includes no appreciable percentage of trust lands.

^10  I agree with Justice WHITE, ante, at 415-416, n. 2, that subsequent events have obliterated the distinction between the so-called "open" and "closed" areas of the reservation that informed both the District Court and the Court of Appeals decisions. Absent this distinction, I see no difference between the Brendale and Wilkinson properties and, therefore, disagree with the Court of Appeals that these cases should be remanded to the District Court for consideration of the State's interest in zoning the Wilkinson property. As the Court of Appeals concluded, the Tribe has established a sufficient interest in zoning the Wilkinson property to support its inherent power to zone. Because of the unworkability of concurrent zoning, the State is pre-empted from zoning that land.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).