Spotlight on Zoning Practice

Tribal Zoning? Well, It’s Complicated

APA's Equity in Zoning Policy Guide highlights common zoning practices that have disproportionately burdened tribal communities in the U.S. But it's also important to acknowledge the repeated harmful federal actions toward Indigenous peoples that set the table for burdensome local zoning.

Unlike other historically disadvantaged and vulnerable communities, federally recognized tribal communities are sovereign governments. This means tribal authorities have wide latitude to regulate their internal affairs; however, the complexities of tribal land ownership can make zoning an exception to this general rule. In the November issue of Zoning Practice, "Tribal Zoning, Sovereignty in Action," Margo Hill and J.D. Tovey III, AICP, remind us of the painful history undergirding tribal planning and zoning authority, while striking a hopeful note for local-tribal collaboration.

How Did We Get Here?

In most cities, towns, and counties across the U.S., zoning only has to contend with one type of land: fee simple. But, as Hill and Tovey explain, tribal communities can have up to four types of land, each with distinct rules and obligations. In areas dominated by tribal trust and allotment lands, tribal authorities can apply zoning in much the same way as local jurisdictions. But, in areas with a "checkerboard" pattern of ownership, where tribal trust and allotment lands are comingled with tribal fee and fee simple lands, tribal authorities must contend with two key U.S. Supreme Court decisions that effectively transfer zoning authority for fee lands to neighboring jurisdictions.

In 1981, Montana v. United States prohibited tribal authorities from enforcing their zoning regulations on fee lands, unless the owners of those lands consent to the zoning or the uses of the land pose a direct threat to the "political integrity, the economic security, or the health or welfare of the tribe." Then, in 1989, Brendale v. Confederated Tribes and Bands of Yakima Nation tested whether a tribal authority could apply zoning across a "checkerboard" reservation.

The court's decision affirmed the tribe's right to zone areas where the predominant pattern of ownership was tribal trust or allotment but nullified the tribe's zoning for fee lands in more evenly mixed areas, upholding the neighboring county's overlapping zoning regulations.

How Can Non-Tribal Planners Help?

As Hill and Tovey note, federally recognized tribal authorities, unlike cities, towns, and counties, are not creatures of the state or states that host their tribal lands. State planning and zoning enabling laws do not confer powers on these tribes, nor do they constrain their planning and zoning activities. Yet, the Brendale decision created a problem for "checkerboard" reservations that can only be resolved through local-tribal collaboration.

For those of us planners who aren't serving tribal authorities, this means we need to put in the work to build trust with tribal communities and learn how we can uphold their planning priorities through local plans and zoning regulations. According to Hill and Tovey, a memorandum of understanding between a tribal authority and a local jurisdiction can be a powerful tool for re-establishing tribal sovereignty over planning and zoning. But as they emphasize, local planners must exercise patience in these trust-building, learning, and negotiating processes.

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Top image: The small Navajo township of Leupp, near Flagstaff, Arizona (Credit: Kevin Walsh, Wikimedia)

About the Author
David Morley, AICP, is a research program and QA manager with APA and editor of Zoning Practice.

November 13, 2023

By David Morley, AICP