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AGO 1970 No. 11 - June 04, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington

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.

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                                                                    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 communitythat 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.  TheSnohomish 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 theSnohomish 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 wasState 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 . . ."

            ThePaul 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 theBoeing 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 assumecriminal 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.

            InQuinault 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 thePaul 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, inMakah 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 theSnohomish 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 theQuinault 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.

 

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