## Facts

- The Yakima Reservation was established by an 1855 treaty for the Tribe’s “exclusive use and benefit”; most reservation land remained tribal or held in trust, with substantial non-Indian fee parcels in a checkerboard pattern.
- The reservation was functionally divided into a predominantly tribal, forested “closed area” historically closed to the general public, and a more mixed “open area” with a substantial non-Indian presence and much more fee land.
- The Tribe enacted a zoning ordinance asserting authority over all lands within reservation boundaries, including nonmember fee lands.
- Yakima County enacted a zoning ordinance asserting authority over county lands other than Indian trust lands.
- Philip Brendale, a nonmember fee owner in the closed area, sought county-approved subdivision development that tribal zoning prohibited.
- Stanley Wilkinson, a non-Indian fee owner in the open area, sought county-approved subdivision development that tribal zoning prohibited.
- After county approvals were upheld in county proceedings, the Tribe sued in federal court seeking declarations that it had exclusive zoning authority and injunctions against conflicting county action.

## Issues

1. Whether the Tribe may regulate zoning of nonmember fee land located in the reservation’s closed area.
2. Whether the Tribe may regulate zoning of nonmember fee land located in the reservation’s open area.
3. How the limits on tribal civil authority over nonmember activities on fee land within a reservation apply to land-use regulation.

## Decision

- The Supreme Court issued a fractured decision, with different majorities supporting different parts of the outcome.
- For the closed area, the Court upheld tribal authority to apply its zoning ordinance to Brendale’s nonmember fee land.
- For the open area, the Court held the Tribe lacked authority to zone Wilkinson’s nonmember fee land, and county zoning controlled.
- The Court rejected any across-the-board claim that the Tribe had exclusive zoning authority over all reservation fee lands.

## Legal Principles

- As a general rule, tribal civil regulatory authority over nonmembers on non-Indian fee land within a reservation is presumptively absent, subject to limited exceptions.
- Tribal regulation of nonmember conduct on fee land may be sustained when nonmember activity threatens or directly affects the Tribe’s political integrity, economic security, or health or welfare.
- Whether this threat-based exception applies is context-dependent and may turn on the character of the particular reservation area, including land-ownership patterns, population, and the degree of non-Indian presence.
- A single reservation may contain areas where tribal regulation of nonmember fee lands is valid and other areas where state or local regulation predominates.

## Conclusion

The Court sustained tribal zoning authority over nonmember fee land in the Yakima Reservation’s closed area because county-controlled development there could threaten core tribal interests, but it denied tribal zoning authority over nonmember fee land in the open area absent a sufficiently serious showing under the threat-based exception to the general rule limiting tribal regulation of nonmembers on fee land.


Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989)