Alexis Applegate has published her note, “Tribal Authority to Zone Nonmember Fee Land Using the First Montana Exception: A Game of Checkers Tribes Can Win” (PDF), in the Boston College Environmental Affairs Law Review.
The modern Congress and executive branch generally recognize that American Indian tribes retain their inherent sovereign authority over people and property within Indian Country unless Congress previously acted to limit that authority. The Supreme Court, however, has incrementally departed from this recognition of inherent sovereign authority by implementing limits on tribal authority over nonmembers and nonmember land. These impediments began with the divestiture of tribal jurisdiction over crimes committed by nonmembers and expanded to limitations on tribal authority to assert civil regulatory and adjudicative jurisdiction over nonmembers. The Supreme Court first applied this theory of implicit divestiture on limitations of tribal civil regulatory authority in the landmark case Montana v. United States. This limitation on tribal sovereignty continues to severely impact the ability of tribal governments to implement successful zoning and comprehensive land use plans withinreservation boundaries. This Note accepts the status of the law for the time being and offers advice and suggestions for tribes to use the language of these decisions to develop consensual relationships with nonmember fee land owners in the creation of comprehensive zoning plans.