Last Thursday, the Ninth Circuit Court of Appeals issued a decision in Evans v. Shoshone-Bannock Land Use Policy Commission, in which the court continued the trend of the Supreme Court in limiting tribal jurisdiction over non-Indian on-reservation activities. In particular, the court interpreted the second exception to the general rule announced in Montana v. United States, 450 U.S. 544, 565 (1981). The general rule states that tribes lack civil jurisdiction over non-Indians on non-Indian fee lands within reservation borders. The exception to the Montana rule that the court considered provides that tribes may regulate nonmember activity that directly affects the tribe’s political integrity, economic security, health, or welfare. Strate v.A-1 Contractors, 520 U.S. 438, 446 (1997). Following recent Supreme Court decisions, the court gave a narrow reading to this exception, requiring a fact-specific evaluation of impacts to the tribe’s political integrity, economic security, health, or welfare.
The case involved David Evans, a non-Indian, who owns land in fee simple within the borders of the Fort Hall Reservation, the home of the Shoshone-Bannock Tribes. In 2012 Evans began constructing a single-family residence on his property after receiving a building permit from the surrounding county. Evans refused to obtain tribal permits. The Tribes took enforcement action against Evans for violating the Tribes’ Land Use Policy Ordinance. Shortly thereafter, Evans and his contractor brought suit in the United States District Court for the District of Idaho seeking a declaration that the tribal court lacked jurisdiction. The district court granted the Tribes’ motion to dismiss, concluding that Evans’ federal suit was premature because he failed to exhaust tribal remedies. The district court reasoned that tribal authority to regulate Evans’ land use was plausible, so the tribal court did not plainly lack jurisdiction.
The Ninth Circuit disagreed with the district court’s analysis, holding that the Tribes lacked the power to regulate the land use of Evans, and thus Evans was not required to exhaust tribal remedies because the tribal court plainly lacked jurisdiction due to the Tribes’ lack of regulatory jurisdiction. In reaching its conclusion, the court determined that neither the Supreme Court’s 1989 decision in Brendale v. Yakama Nation (492 U.S. 408), nor the second Montana exception more generally, supports tribal jurisdiction over Evans. In Brendale, the Supreme Court held that while the Yakama Nation lacked authority to zone nonmembers’ fee land within an area of the Tribe’s reservation open to the general public, it retained the authority to zone fee land in an area of the reservation closed to the general public. In Evans, the Ninth Circuit emphasized the Supreme Court’s narrow construction of Brendale, noting that under subsequent cases the Tribe can only zone nonmember fee land isolated “in the heart of a closed portion of the reservation” where the proposed use would threaten the Tribes’ overall plan to preserve the character of a unique (and largely undeveloped) resource.
The Ninth Circuit conducted a highly fact specific inquiry to determine whether Brendale would support tribal regulatory jurisdiction in Evans. The court looked to the character of the area in which Evans’ project is located and the nature of his project, in an effort to determine whether (1) the area was similar to the “closed” portion of the reservation in Brendale, and (2) whether the intended use of the land would place the character of the surrounding area “in jeopardy.” The court determined that Brendale would not support tribal jurisdiction because the Evans’ project was located in an area where many nonmember owned residential properties, and his proposed use is similar to other uses in the area.
The Ninth Circuit also rejected the Tribes’ arguments that the second Montana exception applies more generally because it could create environmental harms—including groundwater contamination, improper disposal of construction debris, and increased fire risk—that would threaten the health and welfare of the Tribes. The court concluded that the Tribes’ concerns with respect to Evans’ project are speculative and do not pose “catastrophic risks” to tribal self-government so as to invoke the second Montana exception. The court also noted that no other federal authorities, including the Tribes’ treaty, give the Tribe the authority to regulate Evans’ activities on fee land.
Although the Ninth Circuit narrowly construed the second Montana exception consistent with recent United States Supreme Court precedent, the Court’s analysis suggests that the application of the exception remains a highly fact specific inquiry. In order to defeat a challenge to exertion of regulatory jurisdiction over reservation fee lands owned by non-Indians, tribes must meet the burden of proof by creating a robust evidentiary record detailing the likely harms to tribal self-governance that would result from the tribe’s inability to exert regulatory jurisdiction over the fee land at issue.