Controlling Land Use on the Reservation: The Powers of Tribes to Regulate Land Owned in Fee by Non-Indians

Abstract

The extent to which non-Indians are subjected to tribal civil law has been of interest to land use planners and land use attorneys for decades. Tribes and abutting municipalities share natural and human resources, including resources as diverse and distinct as water and labor, among many others. Cities and towns constantly—either by choice or necessity—interact with tribes and tribal governments. This interaction is generally economic. Tribes and abutting local and state governments have a long history of cooperative agreements regarding taxation, law enforcement, child welfare, and most recently, gaming. For example, the Maine Indian Claims Settlement Act of 1980 granted the Passamaquoddy, Maliseet, and Penobscot Indians claims to a significant portion of the state of Maine in exchange for a grant to the state of limited criminal and civil jurisdiction over tribal members, cooperative agreements for shared law enforcement between the tribals and the state, and preservation of tribal sovereign immunity from the state where the tribe is acting in a governmental, as opposed to proprietary, capacity.