AGO 1959 No. 59 - Aug 20 1959
OFFICES AND OFFICERS - COUNTY - PLANNING COMMISSION - AUTHORITY TO CONTROL USE OF INDIAN ALLOTMENT LANDS LEASED TO A NON-INDIAN.
A county planning commission has no authority to control the use of Indian allotment lands which are leased to a non-Indian.
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August 20, 1959
Honorable Ray E. Munson
102 County Courthouse
Yakima, Washington Cite as: AGO 59-60 No. 59
In your letter previously acknowledged, you have requested the opinion of this office on the following question:
"Does a County Planning Commission have any authority to regulate the conduct of a business or to enforce zoning regulations against persons who have located or are about to locate a business upon Indian allotment lands which are adjacent to or surrounded by patented land within the confines of an Indian Reservation?"
We answer your question in the negative.
The above answer more readily suggests itself if we paraphrase your question as follows:
"Does a municipality have the authority to control the use of Indian allotment lands which are being leased by a non-Indian?"
The general rule regarding jurisdiction over Indian land is set out in C.J.S., Indians, § 87:
[[Orig. Op. Page 2]]
"In view of the general rule that congress has plenary power over Indians and their property . . . the rule has been announced that the extent of jurisdiction over Indians and their property exercisable by state courts depends on the will of congress, and, where the act admitting a state into the Union and its constitution provide that the state disclaims the right and title to lands within the state held by Indian tribes, and that, until the title shall have been extinguished by the United States, the same shall remain subject to the jurisdiction of congress, the state courts are precluded from exercising jurisdiction in actions involving the possession or right to possession of Indian reservation lands. . . ."
Washington is, of course, one of the states that has a disclaimer clause in its constitution, Article XXVI. On pp. 363-4 of the book, Federal Indian Law (published by the Department of the Interior, 1958), it is said that:
"It may be stated however, as a general proposition, that the State courts have no jurisdiction in civil matters affecting the restricted property or tribal relations of the Indians, . . . This is particularly so with respect to allotted lands and the transfer of any right, title, or interest thereto whether by way of purchase or descent, including wills, partition, condemnation, or judicial decree. . . ." (Emphasis supplied.)
It is true that the above discussions relate primarily to the question of jurisdiction ofstate courts to hear and determine action involvingpossession of Indian lands, but the same general rule is applicable to an attempt by a county to zone Indian allotment lands. In United States v. Rickert, 188 U.S. 432, 23 S. Ct. 478, it was pointed out that Indian allotment lands are in effect lands of the United States being held in trust for the Indians. The Department of the Interior has written a decision entitled "The Effect of County Zoning Ordinances on Land Acquired by the United States in Trust for Indians," 58 1-D 52. In this opinion the Acting Solicitor points out that zoning is certainly a proper exercise of the police power of a county. However, the opinion concludes that the state or county in the exercise of its police power may not interfere by zoning ordinance or otherwise with any use of Indian allotment lands by the sovereign, so long as the use thereof is authorized by the laws of the United States.
Insofar as zoning is concerned, we can see no material difference between the land being used directly by the sovereign (United States), and the land being used by a non-Indian who holds the land pursuant to a valid leasing agreement with the Indians.
Accordingly, it is the opinion of this office that a county planning commission has no authority to regulate the conduct of a business located on Indian allotment lands, or to control, by zoning, the use being made of these lands, and it is immaterial that the business the commission is attempting to regulate is being operated by a non-Indian.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
Assistant Attorney General