INDIAN CASE LAW OF INTEREST

Caution - California is a PL 280 state and some cases involve non-PL 280 states

bar0320ca.jpg (5917 bytes)

Justice Stevens assenting: The Tribe's power to exclude nonmembers from its reservation - which derived from its aboriginal sovereignty and the express provisions of its treaty with the United States - necessarily includes the lesser power to regulate land use in the interest of protecting the tribal community. Although, at one time, the Tribe's power to exclude was virtually absolute, the General Allotment Act (Dawes Act) in some respects diminished tribal authority by providing for the allotment of reservation lands in severalty to resident Indians, who were eventually free to sell to nonmembers. While the Indian Reorganization Act repudiated that allotment policy, large portions of reservation lands were conveyed to nonmembers in the interim. To the extent that large portions of reservation land were sold in fee, such that the Tribe could no longer determine the region's essential character by setting conditions on entry to those parcels, the Tribe's legitimate interest in land-use regulation was also diminished. Although 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 region, 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. Thus, the resolution of these cases depends on the extent to which the Tribe's virtually absolute power to exclude has been either diminished by statute or voluntarily surrendered by the Tribe itself with respect to the relevant areas of the reservation.

***************

American Indian Virtual Law Library

Library of Congress Native Americans

Environmental Enforcement on Tribal Lands - Congressional Authority and Major Case Law by Thomas Schlosser, August 2001

Reserved Water Rights Settlement Manual by Peter Sly