Ninth Circuit Holds Shoshone-Bannock Land Use Office/Court Has No Jurisdiction over Nonmember on Nonmember Lands

Here is the opinion in Evans v. Shoshone-Bannock Land Use Policy Commission. The court’s syllabus:

Reversing in the district court’s denial of a motion for preliminary injunction and dismissal of an action seeking to enjoin tribal court proceedings, the panel held that the Shoshone-Bannock Tribes lacked the power to regulate the land use of the plaintiff, a nonmember who owned land in fee simple within the Fort Hall Reservation.

The panel held that the plaintiff was not required to exhaust tribal remedies before bringing suit in federal court because the tribal court plainly lacked jurisdiction. The panel held that because the plaintiff was an owner of non-Indian fee land, the Tribes’ efforts to regulate him were presumptively invalid under Montana v. United States, 450 U.S. 544 (1981), and an exception for the regulation of nonmember activity that directly affects a tribe’s political integrity, economic security, health, or welfare did not apply. The panel  reversed the judgment of the district court and remanded the case for further proceedings.

Briefs and lower court materials are here.

Federal Court Orders Exhaustion of Tribal Remedies in Shoshone-Bannock Zoning Case

Here are the materials in Evans v. Shoshone-Bannock Land Use Policy Commission (D. Idaho):

Dkt 20-1 Memorandum in Support of Motion to Dismiss (00049369)[1].PDF[1][1]

Evans Opposition

Evans Motion for PI

Dkt 49 – Response to Plaintiffs’ Motion for Preliminary Injunction (00049977)[1][2][1]

Memorandum Decision & Order[2][2]

From Mark Echo-Hawk, atty for the Tribes:

The Shoshone-Bannock Tribes earned a winning decision in a hard-fought battle in the Idaho District Court today. The case was about exhaustion of tribal court remedies. The specific issue was whether the Tribes could enforce their land use laws against a non-Indian who built a single family residence on fee owned land on the Fort Hall Reservation. The Tribes attempted to enforce their building permit and business licensing laws against the builder and his contractors and when their efforts were ignored the Tribes filed suit in tribal court. The non-Indian landowner and contractors (backed by the surrounding county and non-Indian businesses) sued in federal court, seeking declaratory and injunctive relief. The Tribes filed a motion to dismiss, arguing that exhaustion of tribal court remedies was required. The non-Indian landowner and contractors argued the Reservation was ‘open’, or diminished, and that the tribes initiated the suit in bad faith. The case came down to whether it was plausible that tribal jurisdiction existed under Montana’s second exception. The federal district court found that the Reservation area in question was not open, that jurisdiction was plausible, and granted the tribes’ motion to dismiss, requiring exhaustion of tribal court remedies. Significantly, the Court confined the ‘catastrophic’ consequences language in Plains Commerce Bank relating to Montana’s second exception to land sale cases and distinguished the analysis required for land use cases. Here is the Court’s decision and the Tribes’ supporting briefing: (attached). The Tribes have been fighting with Power County for years about land use jurisdiction. There aren’t many favorable exhaustion cases that focus on Montana’s second exception, so this may be helpful to other Tribes.