AGO_1970_No_011
[[Orig. Op. Page 1]]
INDIANS - COUNTIES - ZONING ORDINANCE - FEE
PATENT LAND
A county has the
authority to enact a zoning ordinance to govern "fee patent land" located within
the exterior boundaries of an Indian reservation in the state of
Washington.
- - - - - - - - - - - - -
June 4, 1970
Honorable Bill
Kiskaddon
State
Representative, 21st District
4404 242nd
S.W.
Mountlake
Terrace, Washington 98043
Cite as: AGO 1970 No. 11
Dear
Sir:
You have requested the opinion of this office on the following
question:
Does a county have authority to enact a zoning ordinance to govern "fee
patent land" located within the exterior boundaries of an Indian reservation in
Washington state?
We answer your question in the affirmative.
ANALYSIS
It is well established that zoning ordinances are constitutional in
principle as a valid exercise of the police power. State ex rel. Miller v. Cain, 40
Wn.2d 216, 242 P.2d 505 (1952); State ex rel. Wen. Etc. v. Wenatchee, 50
Wn.2d 378, 312 P.2d 195 (1957); Euclid v. Ambler Realty Co., 272 U.S.
365, 71 L.Ed. 303, 47 S.Ct. 114 (1926), 54 A.L.R. 1016. Thus, your question goes not to the
existence of a county's authority to enact a zoning ordinance, per se,
but only to the issue of whether such an ordinance may be made applicable to
"fee patent land" located within the exterior boundaries of an Indian
reservation in this state.
You have asked this question in the light of the recent decision of the
Washington supreme court in the case of Snohomish Cy. v. Seattle Disposal
Co., 70 Wn.2d 668, 425 P.2d 22 (1967) together with the rather complicated
status
[[Orig. Op. Page 2]] of state jurisdiction over Indian
tribes and reservations within the state of Washington at the present time. The Snohomish County case was an
action by that county for an injunction to prevent the defendant Seattle
Disposal Company from disposing of garbage within the county without first
procuring a conditional use permit.
The defendant company had leased two parcels of land from the Tulalip
Indian Tribe on the Indian reservation, both of which were subject to a federal
restriction against alienation.1/ The supreme court, although
recognizing that a county zoning ordinance is a valid exercise of the police
power, ruled that the state or its political subdivisions could not interfere
with the use of such restricted Indian lands as were involved in the case by the
enactment of such zoning ordinance.
In thus ruling, the court quoted from and relied upon RCW 37.12.060 (as
taken from 28 U.S.C. 1360) which reads as follows:
"'. . . Nothing in this chapter shall authorize the
alienation, encumbrance, or taxation of any real or personal property,
including water rights and tidelands, belonging to any Indian or any Indian
tribe, band, or community that is held in trust by the United States or is
subject to a restriction against alienation imposed by the United States; or
shall authorize regulation of the use of such property in a manner inconsistent
with any federal treaty, agreement, or statute or with any regulation made
pursuant thereto. . . .
(Italics ours.)'"
"This chapter," as referred to in this section, is the codification of
chapter 240, Laws of 1957, as amended by chapter 36, Laws of 1963. It pertains to this state's assumption
of criminal and civil jurisdiction over "Indians and Indian territory,
reservations, country, and lands within this state," and will be examined in
more detail below. The point of the
court's decision, however, was that because of the exception to state
jurisdiction which is expressed in RCW 37.12.060, the state and its political
subdivisions had no jurisdiction over the particular lands in question. Because of this lack of jurisdiction,
the court held that the state (and county) could not prohibit or interfere with
the use of
[[Orig. Op. Page 3]] these lands even by a non-Indian
lessee of the tribe where the tribe was authorized to lease the
land.2/
The critical point of
distinction between this case and the subject matter of your present question
pertains to the status of the Indian lands involved. The Snohomish County case, as the
court itself expressly recognized,3/ related only to the enforceability
of a zoning ordinance against land on an Indian reservation which remains
subject to a federal restraint against alienation. Unlike your question, the case did not
involve "fee patent land," which is land on an Indian reservation for which the
federal government has issued a patent.
Such a patent is in the nature of a deed from the federal government to
an individual who may be a member of an Indian tribe or may be a
non-Indian. By its issuance, the
land subject thereto is removed from any federally imposed restriction against
sale or alienation. Thus, the land
with which this opinion is concerned is land which is no longer under the
control of the federal government.4/
The next matter to be
considered in answering your question relates to the extent of state and local
governmental jurisdiction over lands on an Indian reservation which are not
subject to restraints against alienation in the manner of those lands which were
involved in the Snohomish County case, supra.
[[Orig. Op. Page 4]]
In 1953, the Federal Congress enacted Public Law 83-280 (67 Stat. 588, 18
U.S.C. 1162, 28 U.S.C. 1360) which conferred upon the states of California,
Minnesota, Nebraska, Oregon and Wisconsin civil and criminal jurisdiction over
all Indian tribes and reservations within those states with the exception of the
Red Lake Reservation in Minnesota and the Warm Springs Reservation in
Oregon. In addition, the Congress
included in this act the following two sections which were applicable to states
other than those specifically enumerated in the
act:
"SEC. 6. Notwithstanding the provisions of any Enabling Act for the
admission of a State, the consent of the United States is hereby given to the
people of any State to amend, where necessary, their State constitution or
existing statutes, as the case may be, to remove any legal impediment to the
assumption of civil and criminal jurisdiction in accordance with the provisions
of this Act: Provided, That the
provisions of this Act shall not become effective with respect to such
assumption of jurisdiction by any such State until the people thereof have
appropriately amended their State constitution or statutes as the case may
be.
"SEC. 7. The consent of the United States is hereby given to any other
State not having jurisdiction with respect to criminal offenses or civil causes
of action, or with respect to both, as provided for in this Act, to assume
jurisdiction at such time and in such manner as the people of the State shall,
by affirmative legislative action, obligate and bind the State to assumption
thereof."
The basis for the enumeration of the five states specifically designated
in Public Law 83-280 was apparently the expressed willingness of those states
then to assume jurisdiction over Indian tribes which were located therein. The state of Washington was not one of
those at that time; however, several years later, in 1957, this state responded
to §§ 6 and 7, supra, by means of our legislature's enactment of chapter
240, Laws of 1957 (chapter 37.12 RCW).
By this act, the legislature authorized the assumption of state criminal
and civil jurisdiction over Indian tribes and reservations by [[Orig. Op. Page 5]]
gubernatorial proclamation in those instances where a petition signed by the
tribal council or governing body of the tribe was presented to the governor of
the state requesting the assumption of state
jurisdiction.5/
Since the enactment of
chapter 240, Laws of 1957, the question of the validity of the assumption of
state jurisdiction over Indian tribes within this state has been in almost
continuous litigation before the state and federal courts. The first case brought on this issue was
State v. Paul, 53 Wn.2d 789, 337 P.2d 33 (1959). That case involved an attack upon the
constitutionality of the 1957 state act based upon the argument that the state
could not assume jurisdiction over any Indian tribe or reservation within the
state pursuant to Public Law 83-280 without first amending Article XXVI of our
state constitution. The language of
the state's Enabling Act, which became a part of Article XXVI of the state
constitution, reads as follows:
"That the people inhabiting this state do agree and declare that they
forever disclaim all right and title . . . to all lands lying within
said limits owned or held by any Indian or Indian tribes; and that until the
title thereto shall have been extinguished by the United States, the same shall
be and remain subject to the disposition of the United States, and said Indian
lands shall remain under the absolute jurisdiction and control of the congress
of the United States . . ."
The Paul case involved a member of the Skagit tribe who resided on
the Tulalip Indian Reservation in Snohomish county, and who was charged with the
crime of second degree assault against another Indian on that reservation. The Washington supreme court held that
the state of Washington could assume jurisdiction over Indian tribes and
reservations within the state under § 6 of Public Law 83-280, supra, by
legislative enactment, without the necessity of amending Article XXVI of the
state constitution. In thus
holding, the court cited as authority Boeing Aircraft Co. v. R. F. C., 25
Wn.2d
[[Orig. Op. Page 6]] 652, 171 P.2d 838 (1946), and
reaffirmed its ruling in the Boeing case as follows (53 Wn.2d at
794-795):
". . . It will be noted that the framers of our constitution,
in enacting Art. XXVI, supra, adopted the identical words found in the
enabling act. Apparently, this was
done to conform with the requirements imposed by Congress for admission of
Washington state into the Union.
Congress did not require that this compact clause be irrevocable, absent
a Washington state constitutional amendment. Rather, Congress insisted on bilateral
action by the people of the United States (speaking through Congress) and the
people of the state of Washington (speaking through the
legislature)."
The supreme court then ruled that since the Tulalip Indian Corporation
had followed the procedures outlined in chapter 240, Laws of 1957, the state of
Washington had obtained jurisdiction over the tribe so that the accused Indian
could be tried in the state court.6/
Four years after the
rendition of this decision, the Washington legislature, by its enactment of
chapter 36, Laws of 1963, amended chapter 240, Laws of 1957, to provide for the
assumption of civil and criminal jurisdiction over Indian tribes and
reservations as follows (cf., RCW 37.12.010):
"The state of Washington hereby obligates and binds itself to assume
criminal and civil jurisdiction over Indians and Indian territory,
reservations, country, and lands within this state in accordance with the
consent of the United States given by the act of August 15, 1953 (Public Law
280, 83rd Congress, 1st Session) but such assumption of jurisdiction shall
not apply to Indians when on their tribal lands or allotted lands within an
established Indian reservation and held in trust by the United States or subject
to a restriction against alienation imposed by the United States, unless the
provisions of RCW 37.12.021 have been invoked, except for the
following:
"(1) Compulsory school attendance;
[[Orig. Op. Page 7]] "(2) Public assistance; "(3) Domestic
relations; "(4) Mental illness; "(5) Juvenile delinquency; "(6) Adoption
proceedings; "(7) Dependent children; and "(8) Operation of motor vehicles upon
the public streets, alleys, roads and highways: Provided further, That Indian
tribes that petitioned for, were granted and became subject to state
jurisdiction pursuant to this chapter on or before March 13, 1963 shall remain
subject to state civil and criminal jurisdiction as if chapter 36, Laws of 1963
had not been enacted." (Emphasis
supplied.)
Following the enactment of this 1963 amendment, this office issued AGO
63-64 No. 68 (dated November 8, 1963) to the prosecuting attorney of Stevens
county in which we concluded that the jurisdiction assumed by the state under
the amendment is exclusive and not concurrent with tribal
jurisdiction.7/
Thereafter, two more lawsuits took place on the issues raised by both the
1957 and 1963 state acts.
In Quinault Tribe of Indians v. Gallagher, 368 F.2d 648 (C.A. 9th
Cir. 1966), the United States Court of Appeals for the Ninth Circuit recognized
the authority of our state supreme court to decide the question posed in the
Paul case, supra; i.e., whether the legislature had complied with
the provisions of the Washington state constitution by the enactment of chapter
240, Laws of 1957. In addition, the
circuit court ruled that chapter 36, Laws of 1963, was not unauthorized by
Public Law 83-280 as a so-called "partial" assumption of state jurisdiction over
Indian reservations, since the state had indicated its willingness to assume
total civil and criminal jurisdiction over all Indians and their reservations
within the state even though as to some matters, the law required a tribal
resolution and a gubernatorial proclamation. The United States Supreme Court denied a
petition for a writ of certiorari on May 15, 1967 see, 387 U.S.
907.
The, in Makah Indian Tribe v. State, 76 W.D. 2d 645 [[76 Wn.2d
485]], 457 P.2d 590 (1969), a suit was brought to determine whether the [[Orig. Op. Page 8]]
roads on the Makah Indian Reservation, which were part of the Bureau of Indian
Affairs road system, were public highways within the meaning of RCW 37.12.010,
supra.
The superior court of Thurston county ruled in favor of the state, and
the state supreme court affirmed that conclusion by unanimous decision. This decision recognized that the roads
in question were built on lands held in trust by the United States for the tribe
or individual allottees of the tribe, and accordingly, that the state did not
have or claim title to the land underlying the roads. However, the court pointed out that the
treaty between the federal government and the Makah Indian Tribe had reserved to
the federal government the right to build roads on the Makah Reservation where
necessary for the public convenience.
Thus, the court in this case recognized the fact that the question of
state jurisdiction over any portion of an Indian reservation is dependent upon a
federal treaty or a federal statute authorizing such jurisdiction. An appeal to the United States Supreme
Court from this decision was dismissed on March 23, 1970, for want of any
substantial federal question see, 38 U.S. Law Week, [[38 U.S. L. Week]]p.
3366.
In summary as to the foregoing, it will be seen that the one area in
which the federal government has not authorized the assumption of state
jurisdiction is in relation to the sale, encumbrance, etc. of those lands held
by Indians and Indian tribes which are subject to a restriction against
alienation imposed by the United States or held in trust by it. Accord, Snohomish County v. Seattle
Disposal Co., supra. With
regard to such lands, there is no state jurisdiction under Public Law 83-280 or
under RCW 37.12.010; and thus, in accordance with the supreme court's holding in
the Snohomish County case, no county in this state would have authority
to encumber by means of a zoning ordinance tribal or allotted lands on an Indian
reservation even though the tribe was one which had petitioned for complete
state civil and criminal jurisdiction under the 1957 act and state jurisdiction
had been assumed. However, the
decision in that case does not preclude a county from enacting a valid zoning
ordinance which covers the entire county including fee patent lands within the
exterior boundaries of an Indian reservation.
The only question which remains to be explored is whether fee patent land
within the exterior boundaries of an Indian reservation comes within the scope
of the term "Indian country" and thus, somehow, gives the tribal council or the
tribe itself some sort of inherent authority which would enable it to [[Orig. Op. Page 9]]
retain the jurisdiction to zone all of the land within the reservation including
the fee patent lands. We have been
unable to find any legal authority to support such a theory, which was to some
extent relied upon in a recent legal opinion on the subject by the prosecuting
attorney of Grays Harbor county.8/
The numerous cases which
contain discussion concerning what constitutes "Indian country" are cases which
concern the existence or the establishment of an Indian reservation and the
power of the federal government to exercise jurisdiction over such reservations
in those instances where the state in which the reservation is located has not
assumed jurisdiction pursuant to the provisions of Public Law
83280.9/ However, they
do not involve situations where (as here) a state has assumed criminal and civil
jurisdiction over Indians and their reservations and country as provided for in
this federal law; i.e., except when on their tribal lands or allotted lands
within the reservation which are held in trust or subject to a restriction
against alienation. We note
particularly, in disposing of this point, that the provisions of Public Law
83-280 speak, specifically, of the jurisdiction in the state in the areas of
"Indian country." In addition, RCW
37.12.010, supra, expressly gives the state complete criminal and civil
jurisdiction "over Indian territory, reservations, country and lands" (except as
provided in RCW 37.12.060) and, as noted above, the United States Supreme Court
has refused to overturn the decisions in the Quinault and Makah
cases, both of which affirm this state's jurisdiction assumed under chapter 240,
Laws of 1957, and the 1963 amendments thereto.
[[Orig. Op. Page 10]]
Accordingly, it is our conclusion that a county has authority to enact a
zoning ordinance to govern "fee patent land" located within the exterior
boundaries of an Indian reservation.10/
We trust the foregoing will
be of assistance to you.
Very truly
yours,
SLADE
GORTON
Attorney
General
JANE DOWDLE
SMITH
Assistant
Attorney General
*** FOOTNOTES ***
1/See, 25 U.S.C.
§ 403(a), as construed in LaMotte v. United States, 254 U.S. 570, 65
L.Ed. 410, 41 S.Ct. 204 (1921).
2/In thus
concluding, the court cited an opinion of the Acting Solicitor for the
Department of Interior which concluded that the state in the exercise of its
police power could not interfere with land held by the United States in trust
for the Indians by a zoning ordinance.
58 I.D. 52 (1942). This same
conclusion was reached by this office in an opinion issued on August 20, 1959,
to the prosecuting attorney of Yakima county (AGO 59-60 No.
59).
3/See, 70 Wn.2d
668 at pp. 670-671.
4/In Federal
Indian Law by Felix S. Cohen, the basic treatise on Indian law, it was noted
that the early legislation which was enacted to authorize the United States to
retain title to lands allotted to Indians was enacted for reasons of public
policy and in order to protect the Indians against their own improvidence. See, Starr v. Long Jim, 227 U.S.
613, 57 L.Ed. 671 (1913). That
treatise also pointed out that restrictions on the alienation of lands imposed
by the allotment acts run within the land and are not personal to the
allottee.
5/Nine tribes
originally requested and received state jurisdiction under this act. See, State v. Bertrand, 61 Wn.2d
333, 339, 378 P.2d 427 (1963).
6/An appeal from
this decision was taken to the United States Supreme Court but was dismissed
inasmuch as the appeal was not perfected.
361 U.S. 898, 4 L.Ed. 2d 155, 8 S.Ct. 203
(1959).
7/The General
Counsel of the Bureau of Indian Affairs concurred unofficially with this
conclusion.
8/See letter
dated February 24, 1970, to the Planning Director of the Grays Harbor County
Planning Commission, in which the prosecuting attorney expressed a contrary
conclusion to that which we have reached in this
opinion.
9/See, e.g.,
Seymour v. Superintendent, 368 U.S. 351, 7 L.Ed. 2d 346, 82 S.Ct. 424
(1962), which was decided prior to the enactment of chapter 36, Laws of 1963,
and prior to the petition by the Colville Indian Tribe for state jurisdiction in
1965. See, also, Beardslee v.
United States, 387 F.2d 280 (1967).
10/In exercising
this authority, we believe it appropriate to add, we would think it well for the
planning commission and county commissioners to consult with and seek the
cooperation of the applicable tribal council concerning the manner in which the
various fee patent lands on the affected Indian reservation might best be
treated by the county's zoning code.