BRENDALE v. CONFEDERATED YAKIMA INDIAN NATION

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ORAL ARGUMENT OF JEFFREY C. SULLIVAN, ESQ. ON BEHALF OF THE PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument next In No. 87-1622, Philip Brendale versus Confederated Tribes and Bands of the Yakima Indian Nation, and companion cases.

Mr. Sullivan, you may proceed whenever you're ready.

Mr. Sullivan: Mr. Chief Justice, and may it please the Court:

Yakima County is the second largest county in the State of Washington.

The Yakima Indian Reservation consists of--

Unidentified Justice: Largest geographically or population?

Mr. Sullivan: --Geographically.

There's approximately 180,000 people in Yakima County.

25,000 reside on the reservation.

5,000 of those are Indians and 20,000 are non-Indians.

The reservation itself consists of approximately 1.3 million acres, 80 percent of which is owned in trust, 20 percent is owned by non-Indians in fee simple, or approximately 260,000 acres.

There are 10,467 separate parcels of deeded land on the reservation, 500 miles of roads; county roads, there's a state highway and a lot of BIA roads.

The issue in this case is the scope of regulatory control, civil regulatory control, that a tribe can exercise over non-members on deeded land.

At the heart of this case is the tension that's created by two sets of promises made by Congress.

On the one hand, you have the promise that Congress made to the Indians through the treaties.

On the other hand, you have the promise that Congress made to the citizens whom they invited onto those lands through the General Allotment Act.

We believe this case involves the application of this Court's ruling in Montana versus United States.

In Montana, the Court was called upon to determine the extent of power that the tribe still retained in the area of civil regulation.

In that case we were dealing with the hunting and fishing rights of those non-members on deeded land.

This Court, in examining the prior opinions of the Court, including Wheeler and Oliphant, determined first that the exclusive use and benefit language of the Crow treaty did not give them the right to control those non-members.

They did not have the inherent right, nor did they have the treaty right.

The Court recognized that, Oliphant, the intent of Congress, that the inherent right had been removed, particularly with respect to the non-Indian... removed from the tribe, this inherent power with respect to non-Indians on their own land.

We submit that Montana actually, however, did establish a bright line test, the bright line test that we are asking this Court to impose.

The Court said--

Unidentified Justice: How did the case ever get here if it's so bright?

Mr. Sullivan: --Well, because the Ninth Circuit, we submit, did not read it correctly.

And in fact, the court misperceived it dramatically.

The court said, meaning the Ninth Circuit, that in fact the treaty provided those rights and that the tribe had inherent rights, and then went on to rule that... adopt a per se rule of jurisdiction for tribes based upon its reading of Montana.

The court said... I mean, the Montana language is:

"Though Oliphant only determined the inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of non-members of the tribe. "

That's the rule.

Unidentified Justice: And then it goes on to say:

"To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations. "

Mr. Sullivan: Which is the first exception, the first exception, because you go on with that language, which then goes on to distinguish, putting in consent relationships, talks specifically about business dealings, contracts and leases.

We have no objection to that language.

We agree.

It's the kind of language, it's the kind of situation--

Unidentified Justice: So what about the other exception?

Mr. Sullivan: --The second exception is where we believe the problem exists.

The Court, in establishing the second exception, did two things.

One, it says "a tribe may also retain", which is a question as to whether in fact they retain any inherent power at all.

We believe that in fact this second exception needs to be narrowed, it needs to be clarified, or it needs to be eliminated.

Unidentified Justice: May also retain what?

Will you state what the second exception is?

Mr. Sullivan: I will, Your honor.

The second exception says:

"A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect upon the political integrity, economic security, or health and welfare of the tribe. "

Unidentified Justice: And the Ninth Circuit kind of took off with that, didn't they?

Mr. Sullivan: Yes, they did.

Not only did they disregard the first part of the test and granted, in our view, the inherent power in the treaty power, but then read this exception so that it swallowed the rule.

We submit that if the Ninth Circuit's opinion is allowed to stand, any properly drawn ordinance passed by an Indian nation would in fact confer civil regulatory control.

The broad reading--

Unidentified Justice: What were the findings of the district court in regard to the Montana factors?

Mr. Sullivan: --The district court made two completely opposite set of findings.

With respect to Mr. Brendale's property, which was then located in what we call the closed area of the reservation... and our position is is that that's an entirely different situation now because the closure no longer exists.

There is the letter from the Bureau of Indian Affairs Solicitor that's attached, or Assistant Administrator, that's attached to the appendix, is an appendix in Mr. Brendale's brief, in which now that area is open.

But with respect to that, the court made specific findings of fact that, with reference to Mr. Brendale's property, attempting to apply, I think, the Montana exception, and found that it would have an impact and therefore the tribe should exercise jurisdiction in that area.

With respect to Mr. Wilkinson's property, which is... Wilkinson's property, which is in a completely different area of the reservation, on the northern boundary four miles from the city of--

Unidentified Justice: It's in the open area?

Mr. Sullivan: --It's in the open area, that's correct.

There the court made specific findings that not only would this development have no impact, none, using its language,

"on the tribe or its ability to govern itself, its economic security, or its health and welfare. "

the court... and those findings, interestingly, in both cases were left undisturbed by the Ninth Circuit.

Unidentified Justice: Are those fact findings?

Mr. Sullivan: Yes, they are fact findings.

Unidentified Justice: And binding on the Ninth Circuit?

Mr. Sullivan: I think they are fact findings that are binding unless they're clearly erroneous or not supported by the evidence.

Unidentified Justice: Binding on us, too, I take it?

Mr. Sullivan: I think they are binding on you.

Unidentified Justice: If they are on the Court of Appeals, or to the extent that they are binding.

Mr. Sullivan: To the extent that they're binding, unless they're, again, clearly erroneous and not supported by the evidence.

Unidentified Justice: Well, are you challenging... you're challenging the result below in both cases, aren't you?

Mr. Sullivan: No.

Well, as far as the Ninth Circuit is concerned, yes, I think the Ninth Circuit should be reversed.

I think that the trial court should be reversed with respect to Mr. Brendale's property out in the closed area.

The reason that we believe the trial court should be reversed out in the closed area, we agree with the findings, but we don't agree with his conclusion of law.

Judge Quackenbush in making that decision was concerned, we believe, about the wrong part of the test.

Judge Quackenbush was concerned about a balancing test similar to the test used in Mescalero Apache versus New Mexico, and specifically referred to that in questions to me, saying: You know, don't I have to balance this; and what's the state interest, the federal interest, the county interest in this property?

Our position is that that isn't the rule in Montana.

The rule in Montana as set out by this court is the county, the city, the state begins with jurisdiction.

Unidentified Justice: So you're saying... I thought you thought that the district court was proceeding under the right rule, but apparently not You say he sought some balancing test rather than the Montana exception, is that what it is?

Mr. Sullivan: Well, I think that what happened is that Judge Quackenbush when he... clearly, we all relied on Montana.

It was briefed by both parties and we believed it to be the law.

I think that what happened was that Judge Quackenbush took a broad reading of his second exception, which we believe needs to be narrowed as a result of the Ninth Circuit's opinion.

Unidentified Justice: Well, what do you think the county car zone on the reservation beyond the fee owners of non-members?

Mr. Sullivan: That's all.

We should be able to--

Unidentified Justice: I thought there was language in your brief that went further than that.

Mr. Sullivan: --What we said was, I think, that there's two tests that I guess that we would concede.

Initially, we were indicating that we thought we should zone all of the fee land, including that owned by members.

Unidentified Justice: You don't take that position any more?

Mr. Sullivan: No, we do not.

We do not take the position that the Indian... excuse me... non-members, we're talking about non-member-owned fee land only.

Unidentified Justice: Both the open and closed portions?

Mr. Sullivan: That's correct.

We believe that--

Unidentified Justice: Explain to a non-westerner what this distinction is between open and closed portions?

Mr. Sullivan: --I think it's best illustrated by this joint appendix.

This map was included--

Unidentified Justice: I'm not concerned about its territory.

I'm concerned what does it mean to be closed and what does it mean to be not closed, and what causes it to be closed or not closed?

Mr. Sullivan: --In 1954 the Yakima nation got the Bureau of Indian Affairs to close all of the public roads into the forested area of the reservation.

The only people allowed in the forested area of the reservation are members of the Yakima Indian nation and people who are permitted there by the Yakima Indian nation or the BIA.

So that area was closed to any non-member or non-permittee.

You could not go onto that land, you could not use the public roads that were constructed with public dollars.

Unidentified Justice: And the reason was to protect the resources in that closed area, I take it?

Mr. Sullivan: The reason was, as I think the evidence would show, was to protect the timber resource, to protect the game and fish, and to have a place for the tribe.

Unidentified Justice: So how under whatever test you want to apply, how can that decision by the BIA subject a non-Indian who has a fee interest in a portion, that the BIA comes in and says, sorry, your fee interest is now in a closed portion?

Why should that alter whatever test we apply?

Mr. Sullivan: Well, I think that that, it alters it because it was a mind set in which everybody tried the case, Your Honor.

Once you eliminate that and take it out of the fact and just say that we treat it as a forested area, just exactly the same as a national forest, in which mostly there is forest lands owned by the federal government and checkerboarded deeded lands, and look at it in that fashion, then I think you change the manner in which the court looked at those lands.

Unidentified Justice: But what did the BIA do?

It just said, you can go ahead and use the public roads.

Did it change all aspects of the closing?

It didn't say people can go on and use that property?

Mr. Sullivan: No, not clearly.

But you would not have been able to use it prior to the closure.

Unidentified Justice: So it's still closed in a sense?

Mr. Sullivan: Just to the... correct, it's closed to the extent that your land and my land are closed.

We have a road that goes by them.

We don't allow trespassers to come upon it.

I agree, we would not... as a non-permittee or as a non-member, I wouldn't be able to go on the land.

Mr. Brendale, and the record reflects this, who owned the land out there, had to go to court repeatedly in order to get even access.

Unidentified Justice: Do you take the position that the county can zone property in the closed area and, for instance, permit tourist development in an area that the tribe is trying to keep pristine and undeveloped?

Mr. Sullivan: That potential exists under the scheme that I suggest.

Unidentified Justice: You say yes, the county can do that?

Mr. Sullivan: Yes, they could.

They would have to--

Unidentified Justice: Even though it's a little patch in the middle of the closed area of the reservation?

Mr. Sullivan: --I submit that the rules of this Court would allow for that, yes, Your Honor.

Unidentified Justice: And the term "closed area" is just a term that came up in this case?

It's not defined in the regulations?

Mr. Sullivan: No.

Unidentified Justice: It's not even a term of art that the BIA uses, I take it?

Mr. Sullivan: No.

Unidentified Justice: It's not even common to other Indian reservations.

Mr. Sullivan: That's correct, it's unique to this Indian reservation.

Unidentified Justice: So it doesn't matter if I'm a non-westerner at all.

[Laughter]

And here I thought I was the only one who didn't--

--A non-Yakima.

May I ask you a question about this, because if you went back to the early days of some of the reservations, didn't the tribes have the complete power to exclude non-Indians?

Mr. Sullivan: Sure.

Unidentified Justice: That's not unusual, to have closed areas as part of a reservation.

Mr. Sullivan: Well, I think that the--

Unidentified Justice: Maybe it's unusual today, but at least historically it wouldn't have been unusual.

Mr. Sullivan: --Historically, no.

In 1855 when the treaty was written, the power was there.

Unidentified Justice: The whole reservation was closed.

Mr. Sullivan: The whole reservation was trust--

Unidentified Justice: Well now, If you have a closed area today, which means I suppose your zoning inspectors have no right to go into the area, how would you ever-enforce your zoning laws?

Mr. Sullivan: --Well, two things.

One, I think the closed area is now open and so we can go on the public roads.

So that we would be in a position to inspect.

So that limitation is removed.

Unidentified Justice: I'm sorry, I don't really understand that.

I thought there was a closed area.

Mr. Sullivan: Well, I suppose that is up to dispute.

The letter from the Bureau of Indian Affairs... what closed this area other than a resolution from the tribe, these are federally funded roads which are public roads and can only be closed for some very specific emergencies.

The BIA has finally said, in April of 1988, you can go on those roads.

They are now public roads.

Unidentified Justice: You mean any member of the public can enter the closed area on those roads?

Mr. Sullivan: That is correct.

Unidentified Justice: So there is no closed area there now.

Mr. Sullivan: Correct.

That's our whole point.

It's not closed and that's why you have to--

Unidentified Justice: But they can only go on the roads.

You can't get off and build fires or camp or fish or anything like that.

But you can't do that if you're driving on the Lincoln Highway.

Mr. Sullivan: --And that's my point.

If Mr. Brendale, who owns the land, invites me on the land, I can go.

If one of the tribal members invites me to go on the land as a permittee, I can go.

Unidentified Justice: Yes, but you can only go on his land.

Mr. Sullivan: That's correct.

But again, I would not... as the Chief Justice indicates, there are places throughout the entire nation that that is the case.

You just can't get out of your car and set up a fire on somebody's private land.

Unidentified Justice: Yes, but if there's a big area that a big portion of it is inaccessible to anyone except those permitted by the tribe or anyone who is in the middle of a public road, I still don't understand how your agents can enforce zoning ordinances in inaccessible portions of the closed area.

Mr. Sullivan: Well, first of all, you know, looking at zoning, we would not be interested, nor would the county I think even consider, a plat, for example, which is what was proposed by Mr. Brendale, unless there was access to it.

I.e., the roads are now open, he's going to have to have access before his plat is going to be allowed.

The thing--

Unidentified Justice: I guess your answer would be that if indeed you're correct that the county has jurisdiction, it would be arbitrary and capricious for the BIA to close the roads to the county zoning inspectors.

Mr. Sullivan: --Well, that's correct.

It's not only arbitrary--

Unidentified Justice: It couldn't be closed for that purpose, I assume, if you're right about the law.

Mr. Sullivan: --Well, I agree coupled with the fact that there's a specific Code of Federal Regulations that says all roads that are built with public money are public roads.

Unidentified Justice: The county only wants to reach that part of the closed area that is in private ownership in fee.

Mr. Sullivan: That's exactly right.

Unidentified Justice: By a non-member.

Mr. Sullivan: By a non-member.

The reality is, we talk about our pristine forests and yet the testimony is is that the tribe, their own logging operation takes out over 100 million board-feet a year.

They agreed that that would be round-trip 40,000 logging trucks going back and forth in one year.

You know, there's a lot of activity going out on that closed area of the reservation.

This isn't a wilderness area.

Unidentified Justice: Is there anything in the county zoning ordinances which require the zoning authorities to respect the interests of the tribe as such?

Mr. Sullivan: Not specifically, but that's exactly what one of our contentions is, Justice Kennedy, is that the second exception to the Montana ruling was a statement by this Court that, if a tribe or if a county or a city is going to impose civil regulatory control, they should take into account the special needs of the tribe.

Let me give you an example.

In this case, Mr. Brendale, so you understand, he files for a plat.

The tribe gets notice of that.

The tribe in turn... our zoning administrator said this is going to have... this is going to be... excuse me... environmentally insignificant.

The tribe goes: How can you do that?

That's crazy.

So they appeal, have a three-day hearing before the Board of County Commissioners.

The County Commissioners of Yakima County ordered an environmental impact statement before Mr. Brendale could go forward.

At that point, the tribe sued.

We say, look, how can the tribe... how can what we did affect their political integrity when we did what they want?

We granted their request for an environmental impact statement in Mr. Brendale's property.

Our view is that this exception, rather than reading it broadly, if we don't do away with it altogether... I mean, we honestly believe--

Unidentified Justice: Well, is that duty of yours to protect tribal interests enforceable by federal law?

Suppose you are arbitrary so far as the tribe was concerned.

They alleged that you were not protecting their interests.

Does that create a federal cause of action?

I take it not.

It's just a zoning question.

The tribe just... you protect the tribe's interests just like you protect anybody else's interests.

Mr. Sullivan: --Absolutely, we do, and I think it's demonstrated--

Unidentified Justice: But not to any greater extent and not because of any compulsion of federal law.

Mr. Sullivan: --No, there's no direction in the federal law other than the Montana test, which we believe, if you read it closely, when they say "may retain", that in fact this Court was establishing, telling us, to the extent that there's federal mandate from this Court in Indian matters, yes, we're bound to take into consideration those special needs.

Unidentified Justice: You're going to argue the easier case, too, pretty quick?

Mr. Sullivan: Well, I will in just a second if I can get to.

I think, though, that if not, if in fact we are going to say what does that second exception in Montana mean... the tribe encouraged you to take a very broad reading.

We say take a narrow reading.

Unidentified Justice: As I understand them, they say that you have no power at all to zone, and that it should be the tribe that zones.

Mr. Sullivan: That's correct.

Unidentified Justice: It's just not a claim that this is an improvident zoning decision, that ought to be reworked by the county.

It's says that they don't have any authority at all to zone.

Mr. Sullivan: That's correct.

And I think that they're asking... the essence of the Yakima's position and the amicus position is, you need to repeal Oliphant or overrule Oliphant, you need to overrule Montana.

Unidentified Justice: Well, you're telling us we need to overrule Montana, too.

It seems to me both sides are taking very extreme positions with regard to the language of the Montana case.

Mr. Sullivan: I think initially we were.

I want to suggest to you some language... not language, but the framework of a test that we believe works and will give--

Unidentified Justice: You would concede that the action of the county in its zoning policies can have an effect, a direct effect, on the economic security or health or health or welfare of the tribe?

It could, it can?

Mr. Sullivan: --It could and it can, there's no question.

Unidentified Justice: That's what zoning does, isn't it?

Mr. Sullivan: Yes, it does.

But what we're suggesting, though, when you look at the other side of the coin, what is it to give, this Court has said that we are only going to have the tribes exercise regulatory control over non-Indians on deeded lands under extreme circumstances.

We suggest that the test should be a compelling interest test.

We equate compelling interest with self-government.

If the county is going to do something or the city that would affect the tribe's ability to govern their own members or their own land, then yes, it should be knocked down.

There's no question about it.

And the tribe should have authority, if they pass an ordinance that will affect their own people, to have control over non-members.

Let me give you an example.

It's an example that was used in the state's brief.

But if the tribe wants to pass an ordinance that says, we are going to impose a sales tax on our members, then we concede they should... the Safeway store in the city of Toppenish, which is deeded land in a non-Indian, they should in fact be required to collect that tax, which is the other side of the Colville test, in which this Court said to the Indians: You're going to have to collect tax on trust land.

It's our position that you need to take the same... treat Indian and non-Indian the same with a general rule.

If the general rule is that the tribe shall have jurisdiction over trust land, the general rule should be that the cities, the counties, the political subdivisions should have control over the non-member deeded land.

It seems to me that without that we end up with sort of a crazy situation, which is, in an example out of the South Dakota brief.

It's a little extreme, but it's true.

In Oliphant, we're saying, if it's a crime, a 25 dollar speeding ticket, the tribe can't do it.

It can't do it.

In this case, the Ninth Circuit upholds an ordinance whose penalty provision is exclusion from the reservation.

Unidentified Justice: Oliphant was the interpretation of a statute.

Mr. Sullivan: I think Oliphant was the interpretation of statutes in the sense that it determined that for the criminal process, for jurisdictional, both treaty reserved jurisdiction and inherent jurisdiction, the tribes had no criminal jurisdiction over non-Indians.

And to the extent that it interpreted the General Allotment Acts and found that that's what they provided, it becomes a statutory interpretation.

But it seems to me it set out broad principles that this Court has followed, followed in Montana, and should follow here.

Unidentified Justice: Mr. Sullivan, you know, you picked the absolute worst example of county regulation to make this argument for.

The fact is that, unlike a sales tax, which is collected at one point, zoning by its nature, that the decisions are made on the basis of the entire surrounding area.

So it just seems wierd to say that the county has jurisdiction to zone one little parcel that's in the middle, totally surrounded by Indian-owned land or trust lands, and say that it's the county that should have the right to determine whether doing something on that isolated parcel is going to affect the surrounding land.

It seems to me the people that have the interest in zoning there are the people who own the surrounding land.

Mr. Sullivan: But it's exactly the same situation the county has when it's going to zone a piece of land that's right next to a city.

These tensions between two governments that have an interest in particular land for zoning questions is not new.

All we're saying, Justice Scalia, is give us a rule that both can understand, that's clear, and that's the bright line, and then provide for an exception requiring us to take into account the tribes interest, but only the interest where what we're doing is affecting their ability to control themselves or their members.

There is just--

Unidentified Justice: What about Mr. Wilkinson?

Mr. Sullivan: --Well, with respect to Mr. Wilkinson, it seems to me that, again, the test that we are suggesting, even under the Montana misapplication, I guess, which I'm calling it a misapplication to a certain degree by the trial court... you know, Mr. Wilkinson's property, as I say, is on the north edge of the county.

It's four miles from the populated city.

There are or that side of what we call the Ahtanum Ridge, which is the north ridge of the reservation, there are 480 non-Indians, there are 2048 Indians.

There was testimony with respect to the irrigated farmland.

Again, the court specifically found that that development has no impact.

Let me just say something about that development, just to give you an example of why I think there are in fact constitutional issues here.

The tribe's zoning ordinance, as you know, calls for no judicial review, not even by the tribal court.

It can't be reviewed by a state court.

Mr. Wilkinson's property under... the tribe's view is that it is farmland.

The testimony is unequivocal in the case that that land is useless unless you can get water to it.

Mr. Wilkinson has no water.

The effect of the tribe's zoning if it applies to him is a taking, a taking which cannot be redressed because the tribe specifically in the zoning ordinance, in addition to their other position, still indicate that they maintain their sovereign immunity.

If it please the Court, I'd like to reserve whatever I have left.

Chief Justice William H. Rehnquist: Very well, Mr. Sullivan.

Mr. Weaver, we'll hear now from you.

ORAL ARGUMENT OF TIM WEAVER, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Weaver: Mr. Chief Justice, members of the Court:

I'd like to... I represent the Yakima Indian Nation, the other half of this controversy.

It's an unfortunate fact of time and occurrence that we ended up with this argument about the closed area and the open area.

Mr. Sullivan is correct in saying there is no "closed area".

There is a reservation reserved area, a zoning and land use decision made by the Yakima Indian Nation to deal with the area in which Mr. Brendale has his property.

Unidentified Justice: How much is trust land.

Mr. Weaver: Which is... well, 25,000 acres out of 740,000 acres, approximately, is held in fee, Your Honor.

The remainder of it is in trust land.

Unidentified Justice: How long... all right, go ahead.

Excuse me.

Mr. Weaver: I think that we can clear up a little bit of the problem very quickly with regard to the Brendale property.

What we're talking about here, I think all the Justices have recognized, is the police power function of the sovereign, which there's no question the Yakima Nation is a sovereign.

Mr. Sullivan in his argument to the district court in the Whiteside II case, the open area case, advised the court in regard to the Brendale issue:

"We couldn't present any testimony about the services we provide. "

"They don't exist. "

"The real interest out there in the closed area does belong to the Yakima Indian Nation, we agree. "

The county didn't appeal to the Ninth Circuit in the Brendale case.

I can only assume that the county had decided that what their counsel had advised the district court was correct.

Unidentified Justice: How did the Brendale case get to the Ninth Circuit?

Mr. Weaver: Mr. Brendale--

Unidentified Justice: Oh, Mr. Brendale, he appealed.

Mr. Weaver: --Right, yes, Mr. Brendale appealed.

Mr. Brendale filed the petition in this Court, Mr. Chief Justice.

His counsel is not here today.

That matter is being now argued by the county.

I think that the question with regard to the reservation reserved area is very clear.

Under whatever test the Court wishes to discuss, it's clear that the Yakima Indian Nation has retained jurisdiction to zone all lands within that area.

Mr. Sullivan raises the question of the inability of Mr. Brendale to have an impact.

I believe that the same is exactly true of Mr. Brendale's situation, the situation that Mr. Sullivan wishes to put my client in, and that is that the tribal zoning process is an open process.

As a matter of fact, the zoning code we enacted in 1972 almost mirrors the county's zoning ordinance.

Unidentified Justice: There's quite a bit of difference, it seems to me, between saying that it's the Yakima tribe's zoning law that's going to apply to Mr. Brendale's property and saying that the county zoning law is being exercised in a way inconsistent with Montana.

Mr. Weaver: I'm not certain that I--

Unidentified Justice: Well, suppose the county zoning law had come out the other way, that it had said to Mr. Brendale, in view of what the surrounding property is used for, we are not going to allow you to develop that piece of land.

Now, you would still be saying it's none of your business, this is the Yakima zoning law that should apply.

Mr. Weaver: --That's correct.

Unidentified Justice: Well, that's quite a different approach than what you would assume would rule what the county can do under Montana.

Mr. Weaver: Well, I think, Your Honor, that the question in the closed area is, quite frankly--

Unidentified Justice: There isn't any closed area any more, you told me.

Mr. Weaver: --On the reservation, the reservation reserved area.

No, I didn't tell you that, Your Honor.

That's Mr. Sullivan.

Unidentified Justice: Go ahead.

Mr. Weaver: In the reservation reserved area, that the interest of the county simply isn't there.

They admit that they don't have a police power interest in that area in which the Court ought to recognize them being able to now assert that interest there.

I think that the record is clear.

They've admitted it and they haven't appealed.

Unidentified Justice: Well, but the case is nonetheless here.

They've briefed the thing, and they are asking us to reverse the Ninth Circuit on the Brendale property, as well as on the Wilkinson property.

Maybe all you're saying is they don't have much of an argument.

But certainly, technically it's before us.

Mr. Weaver: Yes, I believe it is before you, Your Honor.

I think that where the sovereign, however, who claims the authority at the trial of the case disclaims any interest, they have a difficult time reasserting it at this level.

Unidentified Justice: Why do you say they have no interest?

I don't know that the county doesn't have an interest that its county citizens should, those subject to its jurisdiction, should be able to use their property in a reasonable manner.

Mr. Weaver: I don't--

Unidentified Justice: They may not have any interest in limiting his use of the property, but they certainly have an interest in his being able to use it reasonably.

He's one of their citizens subject to their jurisdiction.

Mr. Weaver: --Oh, yes, I believe that's true, Your Honor.

And under the Yakima Nation zoning code that citizen does have the opportunity to use his property in a reasonable manner.

We have not... there's no allegation before this Court of any confiscatory zoning, of any arbitrary and capricious action in either of these cases on behalf of the Yakima Nation.

Unidentified Justice: Well, if there were would the landowner have the right to test it?

He's not a member of the tribe.

He can't vote for the tribe.

There's no judicial review.

Am I right about all those things?

Mr. Weaver: He's certainly not a member of the tribe and can't vote.

I think this Court has dealt with that issue, however, Justice Kennedy, in other cases.

For instance, in the Mazurie case that issue was specifically brought forth and discussed as an issue in which the fact that the fee land owner on the reservation couldn't vote was not a determination in the issue.

And I think that--

Unidentified Justice: How would a non-member go about challenging an Indian zoning matter that the non-member thought was totally arbitrary and capricious?

Mr. Weaver: --Well, under the tribal zoning authority, Justice O'Connor, they would first of all go to the zoning administrator.

They then would go to the board of adjustment.

And the final step would be to the tribal council.

It is correct that under the current tribal zoning code there is not direct judicial review.

I caution the Court, however, that issue is not here before you, and the--

Unidentified Justice: Do you take the position, however, that the tribe has the sole zoning power even within incorporated cities on the reservation?

Mr. Weaver: --Well, yes, I believe that under--

Unidentified Justice: But you're saying that they have the power to zone any property, whoever owns it, inside the boundaries of the reservation?

Mr. Weaver: --Well, yes, in a manner of speaking, Your Honor, that's correct.

Of course, under the tribal zoning code and under a decision made in the tribe's sovereign power, they have chosen not to assert that authority within the cities.

I think that's an issue that needs to be discussed on a reasonableness basis.

Unidentified Justice: Mr. Weaver, I don't think you're accurate, by the way, that there's been no assertion of confiscatory zoning.

I think Mr. Sullivan just said that one of these parcels was zoned agricultural when there is no water for it.

I think I heard him say that.

Mr. Weaver: Well, of course--

Unidentified Justice: I think his complaint was that it was confiscatory, precisely what you're saying is not at issue here.

Mr. Weaver: --Well, that may be what the issue is that he has presented, Your Honor.

That certainly was not an issue that was presented and tried to the district court.

The question, of course, is that these lands, there are many of these lands that are zoned, for instance, by the county that are agricultural lands that are either to some degree or totally within that same category.

For him to come before you and say that every single situation where there's an agricultural land under the county zoning ordinances is not correct, either.

I think in looking at what Mr. Sullivan asks this Court to do, Your Honors, I heard him say that now under the rule in Montana that the county starts with the position that it has jurisdiction and that the tribe must come before the Court and prove its interest.

I find nothing in any of the briefs... and there are a lot of them filed here, as you know... that supports that position.

I find nothing in any Act of Congress or in the treaty with the Yakimas, that Your Honors must construe in looking at this issue, that makes that determination.

Unidentified Justice: May I interrupt with kind of a basic question here?

Mr. Weaver: Certainly.

Unidentified Justice: So much of the argument has been devoted to language in the Montana opinion as being the sole test for deciding the case.

That language as I understand it dealt with the question whether the inherent sovereignty of the tribe dictated the result in that portion of the case.

I'm wondering if both of you really think that that's the only issue, is the inherent sovereignty issue, or is it possible that the language of the basic treaty or some Act of Congress has something to do with this case?

Mr. Weaver: Thank you, Your Honor.

Yes, that was as a matter of fact going to be my next point.

I think that the test in Montana, which Mr. Sullivan now says is the sole test upon which this Court should test Indian sovereignty, simply is not the case, particularly with regard to the differences between the Yakima treaty and the treaty in the Crow case, and with the decisions of this Court discussing the Yakima treaty.

The Yakima treaty has been here five times, Your Honor the Winans case, the Suford case, the Washington Passenger Fishing Vessel case, the Colville case, and the Yakima Indian Nation versus Washington.

In every single one of those cases, this Court has held... and I refer you specifically to Winans since it was a case determined during the allotment era, when, as the county alleges, the intent of Congress was to totally deprive Indians of all vestiges of sovereignty.

In 1905 this Court held in the Winans case that the Yakima treaty was a true treaty of what we call cession, all rights reserved that weren't ceded to the government of the United States.

That is important because when you look at the provisions of the Yakima treaty, specifically article 1, the Yakima Nation ceded to the United States government in 1855 the lands to which it claimed and occupied.

When you look, when you read the Crow treaty, for instance, the treaty you were construing in Montana, the Crows simply gave up all right and claim that they had to the lands of the United States.

Unidentified Justice: What language is it in the Yakima treaty that you think entitles your client to a more favorable ruling on an effort to zone than the comparable language in the Crow treaty?

Mr. Weaver: First of all, the language of cession, that the Yakima Nation ceded its own lands.

Unidentified Justice: But that doesn't say anything about the reserve power.

Mr. Weaver: Okay, the next issue is in article 2 of the Yakima treaty, Your Honor, that says... that reserved from those lands that the Yakima Nation owned, to which they had title, which is recognized specifically in the treaty, they reserved the lands which constitute the present Yakima Nation boundary for the exclusive use and benefit of their membership.

Now, you discussed the exclusive use and membership language or similar language in the Crow treaty.

However, it's not tied to that other specific treaty language.

There is no specific language of reservation in the Crow treaty.

Unidentified Justice: Yes, but then comes allotments.

Mr. Weaver: And I think that the last point that I'd like to make before I discuss that issue is the specific guarantees, the specific discussion between the Yakima leaders at the treaty grounds in 1855 and Governor Stevens, that the Yakima Nation would have their own government, would have their own laws, that they would be provided with an area where the white man would not enter.

The Allotment Act issue--

Unidentified Justice: Which immediately violated that.

Mr. Weaver: --Well, I believe that I would have to say, Your Honor, that the Allotment Act, when you start trying to figure out what was happening... I think there were 20 briefs before the Court and each one of them says something different.

But I would--

Unidentified Justice: You're right, absolutely right.

Mr. Weaver: --I would certainly agree that under the General Allotment Act of 1987... and of course, that's another point; the Court has to look at all these Acts, and the Act specifically dealing with Yakima and its construction... that there was an intent of Congress at the very least to pass communal ownership of tribal lands into non... or into Indian hands, through the Allotment Act, and to provide those Indians with a piece of property under their ownership.

I think also it's hard to deny that Congress intended that some or a good portion of those lands would pass out of Indian ownership.

I think there are also Acts that allowed non-Indians to move onto reservations and own lands that weren't allotted.

The Court's dealt with that situation in its recent decision in Solem versus Barnett, in which it held that Acts of that type shouldn't be construed as a divestment of tribal sovereignty or tribal boundaries and government over lands of that type unless there is clear evidence of specific intent, unambiguous intent of Congress that such a divestiture was intended.

We point out in our brief, I think in the first couple of pages, some discussion of Congressional sentiment... I'm not sure whether you can call it Congressional intent... that speaks of the background of the 1905 Surplus Lands Act at Yakima, that says these Indians haven't consented, these Indians are causing us problems, we need to open these lands to non-Indian settlers.

At first blush you look at that and you think, my goodness, that language clearly indicates that Congress was taking something away.

The reason that we cite that language, the reason that we cite it, is that when you look at these Acts and when you look at what Congress intended, it's important that you look specifically at the Act and you also specifically look at what Congress knew at the time they passed those Acts.

If you look at, for instance, the Surplus Lands Act, it doesn't say anything in that Act that we are divesting the Indians of any jurisdiction over these lands within their boundaries.

It doesn't say anything as to the effect, for instance, of a potential diminishment of the reservation.

Congress clearly knew at the time they passed that Act, for instance... it was contemporaneous with this Court's decision in Winans which reserved all rights to the Yakima Nation not granted in the treaty.

It was with clear knowledge of this Court's rulings going clear back to Worcester versus Georgia giving tribal governments the right to be governed by their own laws and to govern their own territory.

Unidentified Justice: You don't suggest that the settlers in their dealings with non-Indians on the sovereign would be subject to the tribal courts, are you?

Mr. Weaver: Well, I think that once--

Unidentified Justice: If you say no to that, then you've given up the principle.

Mr. Weaver: --Well no, certainly I think that the question of course of jurisdiction in the tribal courts, for what purpose?

Your Honor, I think that this Court clearly has held in two very recent cases, the Iowa Mutual case... and I've suddenly drawn a blank on the second case, but have held that, with regard to civil jurisdiction matters in tribal court, that's clearly an area within the retained sovereignty of an Indian tribe, at least to test their jurisdiction.

Mr. Sullivan tells you that we want you to overrule the Oliphant case.

I don't believe in my brief, unless I'm mistaken, that we ask you to do that.

I think that the Oliphant case is consistent with the position taken by the Yakima Nation.

I don't see anything in the Oliphant case that says that Indian tribes didn't reserve all rights granted to them.

What you said in Oliphant was that you found an overriding and compelling federal interest that had continued virtually since treaty time that simply overrode the powers of tribes to try non-Indians for crimes committed on their reservation.

I think in that regard, Justice Scalia, the Yakima treaty probably deals with that issue.

It discusses the requirement that the Yakima tribe relinquish to the United States offenders against its laws.

I think the important thing to remember with regard to the issue, for instance, the Oliphant issue versus the issue of land use planning, we're talking here about land use planning, zoning.

What happens on this piece of property directly affects what happens on the next piece of property.

If someone wants to build a garbage dump next to your house, it's pretty damn difficult for you to say to the zoning authority: Gee, you ought to just stick on that piece of property and not let that use override onto my property.

Unidentified Justice: Don't we have some district court findings here with regard to one of these cases, Wilkinson, to the effect that the tribe's interests were not affected?

Mr. Weaver: Yes, there are some findings, and I appreciate you asking me that question because I think there's a misperception.

Unidentified Justice: Shouldn't we recognize those findings and accept those?

Mr. Weaver: No, I don't believe you do, and I'll explain, Justice O'Connor.

There's a misperception here as to what the Ninth Circuit did with regard to the findings.

First of all, we challenged those findings in the appeal process.

The Ninth Circuit reviewed those findings on a clearly erroneous distinction and, while their opinion doesn't simply say we hereby determine that these findings were clearly erroneous, what they say is: We reviewed the findings on a clearly erroneous basis; we find that there was evidence... and this is another distinction.

The district court didn't find, for instance, that... or at least the reversal wasn't based on a fact that, for instance, the sewage from Dr. Whiteside's property would not pollute Antanum Creek.

The court didn't come in and say, oh, we disagree with that.

The finding that they discussed was a finding of no evidence, a totally different standard, I believe, on which the circuit could review.

The circuit said, we find it clearly erroneous that the tribe presented no such evidence.

I think when you look in our brief at page 31 and also at pages 6 and 7 you'll find the evidence that the tribe presented.

You don't need to reach that issue, however, Justice O'Connor, I don't believe.

And I don't think that the Ninth Circuit's opinion has done violence to Rule 52(b), because the Ninth Circuit determined as a matter of threshold law, on the same basis that this Court ruled as far back as 1926 in the Euclid case that zoning, unlike hunting and fishing by non-Indians on their property on the Crow reservation, that zoning per se is a threat to the political integrity, health, welfare, and societal well-being and economic well-being of the Yakima Indian people.

They determined that Judge Quackerbush improperly determined as a matter of the first instance legally that we had not fulfilled the test in Montana.

I think that's another interesting--

Unidentified Justice: May I just interrupt there.

Mr. Weaver: --Sure.

Unidentified Justice: What you've just said relates to a question that Justice White asked earlier, and you seem to be describing what happens here as sort of all or nothing at all, either the tribe has jurisdiction or the county has jurisdiction.

And I know you don't like Montana or applying the test of Montana, but I read the second exception to Montana as not speaking in that fashion when it says

"A tribe may retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on. "

I don't think what that means in context is that, since any activity affected by zoning would affect the tribe, the tribe must have total jurisdiction over zoning.

I think it meant, should zoning be permitted by the county in such a way that the particular zoning might affect the tribe, then there would be a problem and the tribe might have some jurisdiction.

Mr. Weaver: Well, of course I certainly don't agree with that analysis, and it's based on the reserved rights doctrine of the tribe.

Unidentified Justice: You do agree that it's sort of central to this controversy?

Mr. Weaver: Well, yes, and I think it presents an interesting dilemma, not only for the tribes but for the counties, because the next time the county makes a determination to put in an 80-person subdivision, then suddenly, rather than the 40 people living in this immediate area, you have 120.

At some point under those circumstances, if that continues, you're going to have a situation that directly affects and that the tribe does have a protectable interest.

I don't believe by making that statement, however, that the Ninth Circuit misperceived either the rule in this case or in Montana.

I don't believe, Your Honor, of course, that Montana is controlling in this case.

I believe that the Yakima Nation has retained its authority over all the entire reservation to govern its own people and its own population.

That's not a unique theory.

Unidentified Justice: You're saying they have retained the authority to control the use of property anywhere within the reservation boundaries.

Mr. Weaver: Yes, in which they have a legitimate police power interest.

Yes, that's correct, because--

Unidentified Justice: You say they have a legitimate--

Mr. Weaver: --Certainly.

Unidentified Justice: --police power interest.

Mr. Weaver: They do.

Unidentified Justice: And it's not just whenever, it's everywhere within the boundaries of the reservation.

Mr. Weaver: Yes.

Unidentified Justice: Including the cities and towns.

Mr. Weaver: Yes.

I think if I were here today with a case where Mr. Sullivan was representing the Mayor of Toppenish and he represented to you that Toppenish was 100 percent fee land, that it was land-locked, as it is, it cannot affect... the expansion of the city of Toppenish cannot affect the agrarian, agricultural interests that the tribe is trying to protect, that I would have a difficult time convincing you that the police power interests of the tribe should extend into--

Unidentified Justice: But you just wouldn't... if you lost here, you just couldn't zone.

But I don't know why you would say the result is then that the county can do it.

Mr. Weaver: --I'm not certain that I follow exactly your analysis.

Unidentified Justice: Well, suppose you lost that case.

Could anybody zone?

Mr. Weaver: Within the city?

Unidentified Justice: Yes.

Mr. Weaver: Well, the cities are zoning.

Unidentified Justice: Well, the county couldn't do it.

The county couldn't.

Mr. Weaver: Yes, I believe that's correct.

I believe that's correct.

One point that I would like to make in conclusion is that you should not ignore the statement in Montana that the exercise of tribal government beyond what is necessary to protect tribal self-government is not retained.

That's the issue in this case.

The power to zone, the power to control the homeland which was guaranteed to the tribes by the United States government in their treaties, is inherent, is so inherent in that power to self-govern, that to take that away you're going to end up with the inability of the tribe to protect its homeland, its agrarian homeland.

Unidentified Justice: May I ask you a question about the three incorporated towns.

You say the tribe, if it chose to exercise, could exercise zoning authority there.

Is it your view they could exercise exclusive zoning authority?

I take it now--

Mr. Weaver: I believe under the reserved powers doctrine, Your Honor.

Unidentified Justice: --It could.

Now, under the present situation is it... I didn't quite catch a minute ago... the county or the incorporated villages that exercise zoning power now, or both?

Mr. Weaver: In the towns?

Unidentified Justice: In the towns.

Mr. Weaver: It's the towns who exercise that authority, not the county.

Unidentified Justice: I see.

Mr. Weaver: In conclusion, I believe that the Court can uphold the Ninth Circuit's opinion in both of these cases.

Clearly, in the Brendale closed area case, under whatever test Your Honors apply, I believe you find that the Yakima Nation has retained its right to zone in that area.

I think, as I said, it's an unfortunate circumstance in the way these cases were tried that they didn't both come to the Court on the same basis, because the interests of the Yakima Nation are no less compelling in the open area than they are in the closed area.

The closed... you need to remember that the Yakima Nation owns over 50 percent of the land in trust in the closed area.

It has a greater interest physically.

It's where the most governance is needed.

It's the agricultural land base of the tribe from which it derives $5 million a year income from the agriculture, in which it owns more of that agricultural land than non-Indians.

It's where most of the people reside.

Now, the people situation is in fact in the area where the tribe is governing, it's not 25,000/5, 000, as Mr. Sullivan stated.

10,000 of those people live... excuse we, 20,000 and 5,000.

Instead, in the open area it's 10,000 people outside the towns and 5,000 Indians, if that in effect somehow tips the balance.

I don't believe it does.

But there is not the inequities that they point out.

The tribe has a real and legitimate interest in protect ion of this area.

Mr. Chief Justice, my time has expired.

Chief Justice William H. Rehnquist: Thank you, Mr. Weaver.

Mr. Sullivan, you have three minutes remaining.

REBUTTAL ARGUMENT OF JEFFREY C. SULLIVAN, ESQ. ON BEHALF OF THE PETITIONERS

Mr. Sullivan: Mr. Chief Justice:

I think one of Mr. Weaver's analogies just towards the end here points out part of the problem, why we believe that there are constitutional issues here in terms of taking and how the tribe is protected and individual citizens are not.

The Mayor of the City of Toppenish is a Yakima Indian.

She participates fully, as do the tribal members, in the government of the cities, the counties, and the state.

Mr. Brendale and Mr. Wilkinson, as was pointed out, cannot vote, do not participate.

The General Allotment Acts in our view eliminated the exclusive use language upon which Mr. Weaver attempts to rely.

Footnote 9 in the Montana decision goes through this.

The tribes... and both Oliphant and in Montana attempted to use the same language.

We believe that the language difference... and I think there is a couple of words difference between the Crow treaty and the Yakima treaty... is a distinction without a difference, and that this Court's rulings previously in this matter should in fact, should follow that language and should rule that Montana does apply.

But I think the question Justice Stevens had, is it the only case.

I think it's the only case in the serse that it follows the law up to that point as it's developed in the whole area of the Indian law.

We're confronted with this question of civil regulatory control, and what we are suggesting is a rule based on Montana that puts us on an equal basis with the tribe.

We start out with the basis with all Indians that they control the deeded lands... excuse me, the trust land... no matter where it is.

They acknowledge their position is, if there was one lot of trust land in the middle of the city of Toppenish, they should exercise control over it and in fact do exercise control over it for all purposes, including taxation and zoning.

There's a Code of Federal Regulations that says that.

What the county is saying... and then there are some exceptions.

This Court in Colville gave a very narrow exception and said, tribes, that's true, you can control your trust land, but within a very narrow exception, when the state government's interest is being affected by what you are doing, in fact the state can have some control over trust land, i.e., you're going to be required to collect taxes.

All we're asking for is an equal right, that you approach even a Brendale situation as to start with the county having jurisdiction and then we're saying the carefully circumscribed exception.

Because of the constitutional limitations, we believe that exception can't be given the broad analysis that the tribes are in fact encouraging, but in fact should be extremely narrow.

And what this Court should say to the tribe is: If the state action will affect their ability to govern themselves and their members... that's what their inherent sovereignty, that's what's left of their inherent sovereignty.

It's just Judge Quackenbush said, the problem is the Allotment Act.

But we have to deal with history.

We can't just overlook history.

We've got to recognize that, because of an Act of Congress, we have non-Indians, American citizens, who are on this property, who have rights.

And in order to balance those rights, we are suggesting that the exception needs to be very narrow.

Look at the cases that were cited in support of the exception.

Fisher involved all Indians and adoptions, and in fact has been basically, the need for Fisher, eliminated by the Indian Chlid Welfare Act.

The other cases that were cited in support of that second exception I believe give weight to our argument that it was intended to be strict, very narrow.

Thank you very much.

Chief Justice William H. Rehnquist: Thank you, Mr. Sullivan.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until tomorrow at ten o'clock.