What authority does an Indian tribe have over land located in a reservation but owned by a non-Indian?

By March 20, 2017Real Estate

By Joseph G. Ballstaedt

What if you are a non-Indian and purchase land within the borders of an Indian reservation? Are you submitting yourself to regulation by the Tribe and the jurisdiction of the tribal courts for matters related to your property and the use thereof? Probably not. The United States Supreme Court has explained that, as a general rule, tribes do not possess authority over non-Indians who come within the borders of an Indian reservation. This rule is particularly strong when the non-Indian’s activity occurs on land that the non-Indian owns in fee simple.

A good illustration of this rule is found in Evans v. Shoshone-Bannock Land Use Policy Commission, a Ninth Circuit case dealing with land located in Pocatello and within the borders of the Fort Hall Reservation. Evans, who inherited this land in fee simple, was not a member of the Shoshone-Bannock Tribes. He obtained a building permit from Power County—not from the Tribes—and began constructing a residence on the inherited property. The Tribes’ Land Use Policy Commission requested that Evans submit a building permit application and fees to the Tribes, but Evans refused. Eventually, the Tribes served a complaint on Evans from the Shoshone-Bannock Tribal Court, and Evans responded by seeking in federal court a declaration that the tribal court lacked jurisdiction.

The case ended up before the Ninth Circuit, who sided with Evans under the general rule explained above. It reasoned that the tribal court did not plausibly have jurisdiction over Evans’ property because Evans was an owner in fee-simple, the Tribe’s efforts to regulate him were therefore presumably invalid, and no exception to overcome this presumption applied. First, Evans did not enter a consensual relationships with the Tribe or its members, and, second, the activity at issue did not directly affect the Tribe’s political integrity, economic security, health, or welfare.

In discussing the second exception, the Ninth Circuit recognized that it had only been applied once, in Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, where a tribe was allowed to restrain particular uses of non-Indian fee land through zoning regulations because the tribe maintained significant control of the land at issue, which was not openly available to the public. Brendale did not apply to the activity in Evans, however, because, for instance, Evans’ property was surrounded by many residential properties owned and inhabited by non-Indians, the City of Pocatello operated the Pocatello Regional Airport on non-Indian fee land a short distance from Evans’ land, and a public road traversed the area. In sum, the area was not an “undeveloped refuge” like that in Brendale, and development would not place the entire area in jeopardy. In fact, there were already houses in the area like the one Evans was attempting to build.

 

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