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Thread: Tribal zoning conflicts

  1. #1

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    Tribal zoning conflicts

    I am in search of instances, personal experiences, case law, and/or local ordinances that deal with tribal vs. non-tribal zoning and planning conflicts. Has anyone experienced a conflict (in a zoning and/or planning sense) between two neighboring properties (or neighboring entities in general) where one is under the jurisdiction of a Native American Reservation or Tribal Government and the other is under the jurisdiction of the local unit of government (i.e. township, city, etc.)?

    For example, a tribal member (who is NOT under the zoning jurisdiction of the local unit of government) owns property within a medium density residential neighborhood surrounded by property owners who are non-tribal members (who are under the zoning jurisdiction of the local unit of government) and wants to or has used their property in a manner that is not compatible with a medium density neighborhood and they are within their right to do so because they are under the zoning jurisdiction of the tribe; or vice versa?

    Any type of example is welcome. Thanks in advance for your help.

    Eric

  2. #2
    Cyburbian KSharpe's avatar
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    I don't understand how a tribal member, surrounded by non-tribal members, is exempt from the zoning ordinance. Basically, as I understand it, reservations are exempt, but obviously they are distinct communities with only tribal members. If a tribal member leaves the reservation, he doesn't get to be exempt because of this ethnicity.
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  3. #3

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    In the situation for which I am conducting preliminary research, a tribe is looking to incorporate a very large area of land into their jurisdiction (an approximately 36 sq. mile area). However, unlike a reservation where the tribe has total jurisdiction, if this acquisition proceeds, the tribal government would only have jurisdiction over those properties in this 36 sq. mile area that are owned by tribal members. So, in effect, you could have a tribal member living next door to a non-tribal member and they would be governed by completely different jurisdictions (i.e. zoning ordinances, master plans, law enforcement, etc.); one by the tribe and the other by the township or city.

    Eric

  4. #4
    Cyburbian Plan 9's avatar
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    Since it appears from your post that the 36 sq mi would not be part of a reservation, it would all be subject to the local zoning regulations. The tribal government would be no different than a corporation if there is no federal recognition of the 36 sq mi.
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  5. #5

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    The land is technically part of the reservation, it is considered an "open area" where non-tribal members can reside and are under the jurisdiction of the local unit of government; not the tribe. Tribal members living in this area are under tribal jurisdiction however, not the local unit of government (see Brendale v. Confederate Yakima Indian Nation). Examples of zoning/planning conflicts created by this "checkerboard" pattern of jurisdiction are what I'm looking for.

  6. #6
    Cyburbian KSharpe's avatar
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    Man, this sounds like a bad idea. Not your fault, of course
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  7. #7
    Cyburbian wahday's avatar
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    Wow. I have never heard of a situation like this before and we have a large Native population here.

    One question I have is if the tribe is purchasing this 36 sq. mi. piece of land and non-tribal members live there, what becomes of their status? Are they just private owners within tribal land (the way you find private property within, say, National Forest land?) If so, whose jurisdiction covers the streets and other public areas? This would seem to me like it might determine whose zoning should prevail within the 36 sq. mi. area.

    Under this line of thought, I would tend to think that the "health, welfare and safety" aspect of zoning would require that one set of zoning regulations apply to all residents of the area (tribal or not). The objective being to eliminate instances of incompatible use for the benefit of the local residents.

    I would then think that the responsible jurisdiction for zoning would be whichever entity is responsible for the streets, infrastructure like water, sewer, electricity, and fire and police service. If the tribe is buying all of the developed area, then it would be their responsibility (I think). If they are cobbling together the individual tribal member-owned lots under a collective tribal ownership structure, I would think of it more as a Land Trust type of model and in that case, the City jurisdictions might prevail.

    This also sounds a bit like County/City interfaces and the jurisdictional issues that crop up there. You might to look to those examples for precendent. We have areas of Albuquerque, for example, that are completely surrounded by County land and you get some strange stuff, like 100 feet of sidewalk and storm sewer infrastructure that serves 10 City houses and then abruptly ends (the City does sidewalks, the county does not).
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  8. #8

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    "Under this line of thought, I would tend to think that the "health, welfare and safety" aspect of zoning would require that one set of zoning regulations apply to all residents of the area (tribal or not). The objective being to eliminate instances of incompatible use for the benefit of the local residents."

    The paragraph above states the exact problem I am looking to research. The tribe isn't purchasing the land but has petitioned the state in order to incorporate it into their current reservation. The land would then be designated as reservation land but would have fee ownership by tribal and non-tribal members. In the case Brendale v. Confederated Yakima Indian Nation, the Supreme Court ruled that tribes do not have the authority to zone land within their reservation that is owned in fee by non-tribal members but can zone land within their reservation owned in fee by tribal members. This creates the "checkerboard" zoning/planning effect mentioned earlier which, as you can imagine, which has the potential to cause use incompatibilities between adjacent properties.

    One solution to this would be tribal/governmental inter cooperation; which just makes sense; but I need examples of situations where tribal and governmental zoning/planning clashed and there was a conflict.

  9. #9
    Cyburbian wahday's avatar
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    How do you see my suggestion that the party responsible for fire and police (and streets and other infrastructure) take jurisdiction over zoning? (in this case, it sounds like, the city). Afterall, this is the entity charged with protecting the residents' safety. I can't imagine, for example, the fire department NOT putting out a fire on tribally owned land when the house next door is part of the city and in danger of burning down (or the other way around).

    The more I think about it, tribal jurisdiction only seems to make sense to me if they are actually the managing municipality (in terms of being responsible for infrastructure and services) and that non-tribal members are present because of some historical precedent (as in, the tribe legally purchased the land after others were already present).

    Anyway, this is not a strong area for me, but a very interesting scenario.

    Good luck
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  10. #10
    Cyburbian RandomPlanner's avatar
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    Bad bad idea

    Check out Madison County/Oneida County, NY for details details details on a similar situation that has been in litigation for years now. Basically, the Indian Nation bought up parcels of land and was somehow allowed to 'checkerboard' their jurisdiction around the region. You'd be amazed to see a 20+ story high rise in the middle of an ag district!
    The City of Sherrill won a case last year saying that the newly acquired land was not part of the reservation and could not be considered soverign (thus should have taxes collected -- which haven't been done as of yet). Now, it's in court again with the BIA (Bureau of Indian Affairs) investigating as well. Big mess -- stay away -- wouldn't recommend it! Feel free to PM me for more info.
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  11. #11
    Cyburbian mgk920's avatar
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    I'm not sure about the exact inner workings of it, but a similar situation exists with the Wisconsin Oneida tribe, whose reservation covers parts of Outagamie and Brown counties, extending with a somewhat irregular border as far east as US 41 in the City of Green Bay. Large portions of land within their reservation's legal borders are privately owned by non-Oneidas and it covers most or all of several municipalities, including heavily urbanized west-central Brown County.

    The Wisconsin Oneidas do operate a large gambling casino on a finger of their reservation that is across the main road (WI 172) from the GRB airport terminal, which is mostly off of the reservation, along with several smaller 'C-store' casinos and poker halls in the western Green Bay metro area.

    I would check with them (Brown County, Outagamie County, City of Green Bay, Village of Ashwaubenon, Village of Hobart and Oneida Township [Outagamie County]) for more on their arrangements.

    Mike

  12. #12
    Cyburbian Otis's avatar
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    We have a similar situation in my community. As I understand the law, property, even within an incorporated city, that is reservation land or held "in trust" by the Bureau of Indian Affairs is not subject to the local jurisdiction. So zoning restrictions, local building codes, taxes, do not apply to them. They are subject to certain state and federal requirements, however. If the property is not yet in trust, in the course of that they will ask for local government comments, and if it is thought that the propoesed use of the land will be incompatible with the surrounding use, that can be a factor in the approval process.

  13. #13
    Cyburbian RandomPlanner's avatar
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    Quote Originally posted by Otis View post
    We have a similar situation in my community. As I understand the law, property, even within an incorporated city, that is reservation land or held "in trust" by the Bureau of Indian Affairs is not subject to the local jurisdiction. So zoning restrictions, local building codes, taxes, do not apply to them. They are subject to certain state and federal requirements, however. If the property is not yet in trust, in the course of that they will ask for local government comments, and if it is thought that the propoesed use of the land will be incompatible with the surrounding use, that can be a factor in the approval process.
    I agree that if the property is reservation or trust land, it is not subject to local jurisdiction (or state, I believe). The problem then arrises what is reservation land and what is not. Just becuase an Indian Nation buys land doesn't make it reservation. And that's where the fights begin, I think (or continue!).
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  14. #14
    Zoning Lord Richmond Jake's avatar
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    I won't start another thread as this is slightly related:

    I received a call this morning for a local lawyer asking me what authority local jurisdictions have over tribal lands. My immediate reaction was “none” but I haven’t found a citation during a Google search.

    I think the lawyer may be representing a tribe that is searching to purchase land and possibly construct a casino. So it got me to thinking, can a tribe purchase land, either within or outside their historic range, and declare it autonomous tribal land not subject to local land use regulations?

    What are your experiences in this area?

  15. #15
    Cyburbian Wannaplan?'s avatar
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    Off-topic:
    Quote Originally posted by RichmondJake View post
    I think the lawyer may be representing a tribe that is searching to purchase land and possibly construct a casino. So it got me to thinking, can a tribe purchase land, either within or outside their historic range, and declare it autonomous tribal land not subject to local land use regulations?
    This is a very good question. My experience indicates that the issue of tribal gaming depends on agreements with the state. In Michigan, several tribes with reservations have negotiated gaming compacts with the Governor's office. In addition, several tribes without reservations have also negotiated gaming compacts with the Governor's office. Furthermore, some tribes - without reservations and no gaming operations - have also attempted to negotiate gaming compacts, but have not met with any success. Much of the willingness of the State to negotiate has to do with a tribe's claim to "treaty rights" (circa 1836 in Michigan) and whether or not they participated in the original treaty.

    I am by no means an expert, and the best advice I can offer is to hire some pretty good lawyers. The long and short of all this, because of histroic treaties, the State will get invloved sooner or later.


    But back to the orignal question, I worked in a tribal casino for three years, one not on a reservation. My impression is that the tribe thought of its gaming lands as their own, unaffected by local regulations. My impression is that they thought it was up to the local jurisdiction or State to force them to comply with local or State regulations.

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    Checking up

    Did you ever get this resolved? I may be able to provide some insight. I'm a land use planner for a tribe.

  17. #17
    Cyburbian
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    Quote Originally posted by Jciesla View post
    Did you ever get this resolved? I may be able to provide some insight. I'm a land use planner for a tribe.
    Please do, I'm interested in the topic from your perspective.

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