brendale confederated yakima indian nation argued january decided june treaty yakima indian nation yakima nation tribe provided tribe retain reservation exclusive use benefit white man shall permitted reside upon said reservation without tribe permission much reservation located yakima county washington roughly reservation land held trust tribe individual members remaining owned fee indian owners fee land found three towns rest scattered throughout reservation checkerboard pattern reservation divided two parts closed area named closed general public open area restricted small portion closed area consists fee land almost half open area fee land tribe zoning ordinance applies lands within reservation including fee lands owned indians county zoning ordinance applies lands within boundaries except indian trust lands petitioners brendale wilkinson hereinafter petitioners land closed open areas respectively filed applications yakima county planning department develop lands ways permitted tribe ordinance permitted county ordinance department issued declarations petitioners effect authorized developments tribe appealed declarations county board commissioners ground inter alia county zoning authority land question board concluded appeals properly issued decisions tribe filed separate actions district challenging proposed developments seeking declaratory judgments tribe exclusive authority zone properties issue injunctions barring county action inconsistent tribe ordinance held tribe exclusive jurisdiction brendale property lacked authority wilkinson property concluding brendale proposed development wilkinson posed threat tribe political integrity economic security health welfare therefore impermissible montana also determined county exercising concurrent zoning authority closed area lands interests regulating lands minimal tribe substantial appeals consolidated cases affirmed brendale property reversed wilkinson property upholding tribe zoning authority concluded fee land located throughout reservation checkerboard pattern denying tribe right local governmental police power zone fee land destroy capacity engage comprehensive planning held judgment affirmed part reversed part affirmed nos reversed justice white joined chief justice justice scalia justice kennedy announced judgment nos concluding tribe authority zone fee lands owned nonmembers within reservation pp regulatory power tribe might treaty apply lands held fee montana tribe longer retains exclusive use benefit lands within meaning treaty since indian general allotment act allotted significant portions reservation including lands issue individual members tribe lands subsequently passed sale inheritance nonmembers petitioners tribe treaty rights must read light subsequent alienations unlikely congress intended subject purchasers tribal jurisdiction avowed purpose allotment policy destroy tribal government fact allotment act repudiated indian reorganization act irrelevant since latter act restore exclusive use lands question tribe pp tribe derive authority inherent sovereignty impose zoning ordinance petitioners lands sovereignty generally extends necessary protect tribal control internal relations divested extent inconsistent tribe dependent status extent involves tribe external relations nonmembers unless express congressional delegation tribal power contrary montana supra washington confederated tribes colville indian reservation wheeler reconciled contention congress expressly delegated tribe power zone fee lands nonmembers pp although montana supra recognized exception general principle tribe may retain inherent power exercise civil authority conduct fee lands within reservation conduct threatens direct effect tribe political integrity economic security health welfare exception create tribal authority zone reservation lands fact exception prefaced word may indicates tribe authority need extend conduct specified effects instead depends circumstances literal application exception make little sense present circumstances hold tribe authority zone fee land activity land specified effects indian properties mean authority last long threatened use continued revert county use ceased conceivably switch back forth depending uses county permitted thereby engendering uncertainty neither tribe county interests chaotic landowners accordingly montana understood generally prohibit tribes regulating use fee lands way tribal ordinance actions tribal courts recognize special circumstances ownership reservation lands protectible tribal interest federal law defined terms demonstrably serious impact challenged uses imperils tribal political integrity economic security health welfare since supremacy clause requires state local governments including county zoning authorities recognize respect interest course activities tribe argued zoning proceedings county without zoning authority reservation fee land tribal interests imperiled district jurisdiction entertain tribe suit given county jurisdiction zone reservation fee lands enjoin county action county failed respect tribe rights pp light district findings county exercise zoning power wilkinson property direct effect tribe threaten political integrity economic security health welfare judgment must reversed pp justice stevens joined justice announced judgment concurred judgment nos concluding tribe power exclude nonmembers reservation derived aboriginal sovereignty express provisions treaty necessarily includes lesser power regulate land use interest protecting tribal community although one time tribe power exclude virtually absolute general allotment act dawes act respects diminished tribal authority providing allotment reservation lands severalty resident indians eventually free sell nonmembers indian reorganization act repudiated allotment policy large portions reservation lands conveyed nonmembers interim extent large portions reservation land sold fee tribe longer determine region essential character setting conditions entry parcels tribe legitimate interest regulation also diminished although inconceivable congress intended sale lots divest tribe power determine character region equally improbable congress envisioned tribe retain interest regulating use vast ranges land sold fee nonmembers lack voice setting tribal policy thus resolution cases depends extent tribe virtually absolute power exclude either diminished statute voluntarily surrendered tribe respect relevant areas reservation pp tribe power zone brendale property reservation closed area although presence logging operations construction bureau indian affairs roads transfer ownership relatively insignificant amount land area unquestionably diminished tribe power exclude area justify conclusion tribe surrendered historic right regulate land use contrary maintaining power exclude nonmembers entering small portion area tribe preserved power define area essential character fact exercised power zoning ordinance moreover tribe authority prevent individuals portions closed area fee undermining general plan preserve area unique character developing isolated parcels without regard otherwise common scheme seems necessary reasonable operation allotment process congress possibly intended enacting dawes act tribes lose control character reservations upon sale relatively small parcels lands cf seymour superintendent washington state penitentiary mattz arnett rather tribes power zone like equitable servitude burden complying zoning rules runs land without regard particular estate transferred montana require different result since unlike tribal regulation considered case yakima nation zoning rule neutrally applied indians alike necessary protect welfare tribe interfere significant state county interest pp tribe lacks authority zone wilkinson property reservation open area given half open area land owned nonmembers tribe longer possesses power determine basic character area allowing nonmember use lands manner might approved tribe upset otherwise coherent scheme land use moreover unlikely congress intended give tribe power determine character area predominately owned populated nonmembers represent population yet lack voice tribal governance furthermore extent open area lost character exclusive tribal resource become practical matter integrated portion county economically culturally delimited reservation boundaries tribe lost claim interest analogous equitable servitude thus tribe power zone open area become outmoded pp justice blackmun joined justice brennan justice marshall concurred judgment concluding indian tribe power zone reservation lands chooses exercise power exclusive thus county lacks authority zone yakima nation reservation lands including fee lands open closed areas pp decisions dealing inherent sovereignty indian tribes including montana tribes retain inherent authority exercise civil jurisdiction activities reservation lands including power zone fee lands activities implicate significant tribal interests moreover decisions common sense compel finding tribe zoning authority lands within reservation closed areas pp although concurrent authority exercise jurisdiction activities reservation lands circumstances authority exercise violence right either sovereign concurrent zoning jurisdiction nature unworkable since practical effect nullifying efforts sovereigns establish comprehensive plans every instance two establish different permissible land uses tract pp together wilkinson confederated tribes bands yakima indian nation county yakima et al confederated tribes bands yakima indian nation also certiorari jeffrey sullivan argued cause petitioners cases briefs petitioners terry austin charles flower patrick andreotti filed briefs petitioner dale ramerman ronald schaps michael mirande filed briefs petitioner tim weaver argued cause respondents cases brief wayne fn briefs amici curiae urging reversal filed state arizona et al kenneth eikenberry attorney general washington timothy malone assistant attorney general attorneys general respective follows robert corbin arizona jim jones idaho frank kelley michigan michael greely montana brian mckay nevada hal stratton new mexico nicholas spaeth north dakota david wilkinson utah joseph meyer wyoming state south dakota roger tellinghuisen attorney general john guhin deputy attorney general mendocino county et al tom tobin city green bay wisconsin et al james quarles iii william lee kathryn bucher town parker arizona john weldon stephen crofton gerald hunt citizens equal rights alliance et al kenn pugh national association counties et al benna ruth solomon joyce holmes benjamin robert deitz henry habicht ii quinault property owners association et al thomas christ dennis reynolds briefs amici curiae urging affirmance filed colorado river indian tribes alletta belin william lavell confederated tribes colville reservation et al bruce didesch allen sanders amy crewdson national congress american indians et al thomas luebben james bowen navajo nation steven bloxham governing council pinoleville indian community david rapport three affiliated tribes fort berthold reservation charles hobbs standing rock sioux tribe et al william perry harry sachse swinomish tribal community et al jeanette wolfley thomas acevedo jack trope jeanne whiteing dale white scott mcelroy richard west daniel raas justice white joined chief justice justice scalia justice kennedy delivered opinion announcing judgment nos dissenting issue presented three consolidated cases whether yakima indian nation county yakima governmental unit state washington authority zone fee lands owned nonmembers tribe located within boundaries yakima reservation confederated bands tribes yakima indian nation composed originally distinct indian tribes banded together negotiate result negotiations treaty signed ratified senate treaty yakima nation indians treaty yakimas stat terms treaty yakima nation ceded vast areas land retained area yakima indian reservation exclusive use benefit reservation located southeastern part state washington approximately million acres land located within boundaries land roughly held trust benefit yakima nation individual members tribe remaining land owned fee indian owners fee land found toppenish wapato harrah three incorporated towns located northeastern part reservation remaining fee land scattered throughout reservation pattern parties litigation well district appeals treated yakima reservation divided two parts closed area open area closed area consists western reservation predominantly forest land approximately acres land closed area acres located yakima county thousand acres seven hundred forty thousand acres fee land closed area named closed general public least since bureau indian affairs restricted use federally maintained roads area members yakima nation permittees must record landowners associated tribe access open area name suggests likewise restricted general public open area primarily rangeland agricultural land land used residential commercial development almost half land open area fee land yakima nation adopted first zoning ordinance ordinance amended present form terms yakima nation ordinance applies lands within reservation boundaries including fee lands owned indians yakima county adopted present comprehensive zoning ordinance although county regulated land use early county ordinance applies real property within county boundaries except indian trust lands ordinance establishes number use districts generally govern agricultural residential commercial industrial forest watershed uses particular zoning designations issue forest watershed general rural fee lands located closed area zoned county ordinance forest watershed designation permits development dwellings commercial campgrounds small overnight lodging facilities restaurants bars general stores souvenir shops service stations marinas sawmills minimum lot size acre none uses permitted zoning designation reservation restricted area applies closed area yakima nation zoning ordinance general rural zoning designation applicable land open area one three use districts governing agricultural properties minimum lot size land zoned general rural smaller specified agricultural land yakima nation ordinance although county use districts agricultural properties larger minimum lot sizes yakima nation ordinance petitioner philip brendale part indian member yakima nation owns tract land near center forested portion closed area parcel originally allotted brendale great aunt member yakima nation land passed inheritance brendale mother grandfather issued fee patent mother death brendale land zoned reservation restricted area yakima nation zoned forest watershed yakima county january brendale filed four contiguous short plat applications yakima county planning department determining short platting require environmental impact statement eis department issued declaration department requested comments yakima nation tribe respond short plats approved brendale submitted april long plat application divide one platted parcels lots sold summer cabin sites lot individual well septic tank electric generators provide electricity proposed plat bordered north east lands owned brendale south lands owned fee regis paper company west lands held trust proposed development permissible yakima nation ordinance county planning department issued declaration yakima nation appealed declaration yakima county board commissioners grounds county zoning authority land eis necessary commissioners concluded appeal properly board reversed planning department ordered eis prepared petitioner stanley wilkinson nonmember yakima nation owns tract land open area reservation tract located less mile northern boundary reservation slope overlooking yakima municipal airport city yakima land bordered north trust land three sides fee land currently vacant sagebrush property zoned agricultural yakima nation general rural yakima county september wilkinson applied yakima county planning department subdivide acres land lots lots range size acres acres used home served individual wells septic systems proposed development permissible yakima nation ordinance planning department initially indicated eis needed prepared project later wilkinson modified proposal department issued declaration yakima nation thereafter appealed declaration challenging county authority zone land alleging eis necessary county board commissioners concluded appeal properly affirmed planning department conclusion eis necessary yakima nation filed separate actions district challenging proposed development brendale wilkinson properties county exercise zoning authority land complaints sought declaratory judgment yakima nation exclusive authority zone properties issue injunction barring action approval action land inconsistent regulations yakima nation district held yakima nation exclusive zoning authority brendale property yakima indian nation whiteside supp ed whiteside concluded tribe lacked authority wilkinson property yakima indian nation whiteside supp ed whiteside ii district looked opinion montana controlling whether indian tribe authority regulate activities nonmembers tribe fee lands district determined evidence consensual relationship yakima nation wilkinson brendale extend authority tribe fee lands making detailed findings fact concluded brendale proposed development indeed pose threat political integrity economic security health welfare yakima nation therefore tribe authority impose zoning regulations property district proceeded determine yakima county exercising concurrent zoning authority land closed area interests regulating land minimal tribe interests substantial wilkinson proposed development impose similar threat tribe authority whatsoever property appeal ninth circuit consolidated cases affirmed brendale property reversed wilkinson property confederated tribes bands yakima indian nation whiteside upholding yakima nation zoning authority appeals disturb rely findings district instead concluded zoning ordinances nature attempt protect damage caused uncontrolled development affect residents land reservation according appeals zoning ordinances within police power local governments precisely promote health welfare community moreover major goal zoning coordinated planning fee land located throughout reservation checkerboard pattern denying yakima nation right zone fee land destroy capacity engage comprehensive planning fundamental zoning scheme unwilling brendale wilkinson yakima county petitioned writ certiorari granted petitions consolidated cases argument ii present actions brought yakima nation require development occurring property within boundaries reservation proceed accordance yakima nation zoning ordinance tribe necessarily contending exclusive authority zone property within reservation including projects issue therefore examine whether yakima nation authority derived either treaty status independent sovereign zone fee lands owned brendale wilkinson yakima nation argues first treaty establishes authority regulate fee land within reservation owned nonmembers tribe terms treaty yakimas provides land retained yakima nation shall set apart exclusive use benefit tribe white man excepting employment indian department shall permitted reside upon said reservation without permission tribe stat yakima nation contends power exclude provides source authority land issue disagree yakima nation longer retains exclusive use benefit land within reservation boundaries established treaty yakimas indian general allotment act stat significant portions yakima reservation including tracts land issue allotted individual members tribe land held trust period years generally although period subject extension fee patents issued time sale inheritance nonmembers tribe petitioners brendale wilkinson come substantial portion allotted land analyzed effect allotment act indian tribe treaty rights regulate activities nonmembers fee land montana treaty language virtually identical language treaty yakimas concluded treaty rights respect reservation lands must read light subsequent alienation lands see also puyallup tribe washington game montana present cases lands issue alienated allotment act concluded defies common sense suppose congress intend purchasing allotted lands become subject tribal jurisdiction avowed purpose allotment policy ultimate destruction tribal government yakima nation argues consider allotment act repudiated indian reorganization act stat montana well aware change indian policy engendered indian reorganization act concluded fact irrelevant although indian reorganization act may ended allotment lands restore indians exclusive use lands already passed prevent already allotted lands fee patents subsequently issued thereafter passing justice stevens acknowledges allotment act eliminated tribal authority exclude nonmembers fee lands owned post yet concludes brendale wilkinson somehow subject tribal power determine character tribal community post unless tribe voluntarily surrendered power view tribal zoning authority sort equitable servitude post wholly unsupported precedent justice stevens begins tribe power exclude nonmembers land power derives tribal power define character land post asserts basis yakima nation exercise zoning authority closed area reservation according justice stevens power exclude necessarily must include lesser power regulate land use interest protecting tribal community post yakima nation longer power exclude fee owners land within boundaries reservation justice stevens concedes post therefore power longer serve basis tribal exercise lesser included power result surely inconceivable post rather perfectly straightforward irrelevant tribe declared closed area limits brendale obtained title property brendale obtained title land land longer limits tribal authority exclude necessarily overcome justice stevens puts implici grant access land ibid aside alleged inconceivability result justice stevens offers support assertion enacting allotment act congress intended tribes retain power determine character tribal community ibid justice stevens cites seymour superintendent washington state penitentiary mattz arnett support position post cases irrelevant issue hand however concluding merely allotment consistent continued reservation status meanwhile montana directly contrary flatly rejected existence power derived power exclude regulate activities lands tribes longer exclude nonmembers see justice stevens attempts distinguish montana unavailing distinctions relies regulation discriminatory posed threat welfare tribe infringed state interests post even mentioned section montana opinion considering power exclude see page certainly considered case relevance issue follow montana conclude reasons stated regulatory power tribe might treaty apply lands held fee indian tribe treaty power exclude nonmembers tribe lands source indian regulatory authority merrion jicarilla apache tribe held tribes inherent sovereignty independent authority arising power exclude prior european settlement new world indian tribes sovereign political communities wheeler still retain elements authority ceding lands announcing dependence federal government oliphant suquamish indian tribe thus indian tribe generally retains sovereignty way tribal control aspects internal affairs montana supra tribe inherent sovereignty however divested extent inconsistent tribe dependent status extent involves tribe external relations wheeler cases found tribe sovereignty divested generally involving relations indian tribe nonmembers tribe ibid example indian tribes freely alienate lands oneida indian nation county oneida enter directly commercial governmental relations foreign nations worcester georgia pet exercise criminal jurisdiction tribal courts oliphant supra list means exclusive montana makes clear montana crow tribe sought prohibit hunting fishing within reservation anyone member tribe held tribe inherent sovereignty support extending prohibition hunting fishing fee lands owned recognized general principle exercise tribal power beyond necessary protect tribal control internal relations inconsistent dependent status tribes survive without express congressional delegation regulation hunting fishing fee lands owned nonmembers tribe bear clear relationship tribal internal relations general principle precluded extension tribal jurisdiction fee lands issue yakima nation contends insistence montana express congressional delegation tribal power nonmembers inconsistent language washington confederated tribes colville indian reservation tribal powers divested implication exercise tribal sovereignty inconsistent overriding interests national government see language inconsistent montana opinion colville made clear case involved power tax transactions occurring trust lands significantly involving tribe members involve regulation fee lands montana moreover montana reconciled two cases citing colville example sort consensual relationship might even support tribal authority fee lands justice blackmun takes slightly different approach relying particularly colville wheeler proposition tribal sovereignty implicitly divested except limited circumstances principally involving external powers sovereignty exercise tribal authority necessarily inconsistent dependent status post justice blackmun ignores made clear wheeler passage immediately preceding one cites regulation relations indian tribe nonmembers tribe necessarily inconsistent tribe dependent status therefore tribal sovereignty matters external relations divested indeed precisely discussion relied upon montana distinguish ing inherent powers retained tribes divested contention congress expressly delegated yakima nation power zone fee lands nonmembers tribe cf supp supp therefore general principle enunciated montana yakima nation authority impose zoning ordinance fee lands owned petitioners brendale wilkinson inquiry end opinion montana noted two exceptions general principle first tribe may regulate taxation licensing means activities nonmembers enter consensual relationships tribe members commercial dealing contracts leases arrangements second tribe may also retain inherent power exercise civil authority conduct fee lands within reservation conduct threatens direct effect political integrity economic security health welfare tribe parties agree first montana exception apply cases brendale wilkinson consensual relationship yakima nation simply virtue status landowners within reservation boundaries montana necessarily decided yakima nation instead contends tribe authority zone second montana exception disagree initially reject overbroad ninth circuit categorical acceptance tribal zoning authority lands within reservation boundaries find significant second montana exception prefaced word may tribe may also retain inherent power exercise civil authority conduct fee lands within reservation ibid emphasis added indicates us tribe authority need extend conduct threatens direct effect political integrity economic security health welfare tribe instead depends circumstances ninth circuit however transformed indication may cases tribe interest activities nonmembers fee land rule describing every case tribe interest indeed ninth circuit equated indian tribe retained sovereignty local government police power contrary montana montana rejected tribal sovereignty regulate hunting fishing fee land owned clearly power within police power local governments also evident literal application second exception make little sense circumstances cases hold tribe authority zone fee land activity land specified effect indian properties mean authority last long threatening use continued ceased zoning power revert county district interpretation montana regulatory authority depend first instance factual inquiry tribe interests affected particular use fee land circumstances changed time authority zone conceivably case like zoning authority vest variously county tribe switching back forth two depending uses county permitted fee land issue uncertainty kind interests either tribe county government chaotic landowners montana therefore understood vest zoning authority tribe fee land used certain ways governing principle tribe authority way tribal ordinance actions tribal courts regulate use fee land inquiry thus becomes whether extent tribe protectible interest activities taking place fee land within reservation interest may protected course ordinary law neighbors often protectible interest occurring adjoining property may seek relief appropriate forum judicial otherwise montana suggests special circumstances checkerboard ownership lands within reservation tribe interest federal law defined terms impact challenged uses political integrity economic security health welfare tribe indicated interest entitle tribe complain obtain relief every use fee land adverse effect tribe impact must demonstrably serious must imperil political integrity economic security health welfare tribe standard sufficiently protect indian tribes time avoiding undue interference state sovereignty providing certainty needed property owners since tribes protectible interest one arising federal law supremacy clause requires state local governments including yakima county zoning authorities recognize respect interest course activities tribe case first appeared county zoning proceedings submission county without zoning authority fee land within reservation tribal interests imperiled federal courts jurisdiction entertain tribe suit declaratory injunctive relief given county jurisdiction zone fee lands reservation enjoinable failed respect rights tribe federal law proper course district brendale phase case stay hand zoning proceedings completed time judgment made whether uses actually authorized brendale property imperiled political integrity economic security health welfare tribe due regard given tribe protectible interest stages proceedings every confidence nightmarish consequences predicted justice blackmun post avoided course practice proves otherwise congress take appropriate action iii district found yakima county exercise zoning power wilkinson property direct effect tribe threaten tribe political integrity economic security health welfare whiteside ii basis findings clear wilkinson development county approval development imperil interest yakima nation therefore reverse judgment ninth circuit wilkinson property brendale property presents different situation time tribe filed suit county agreed tribe eis required brendale development go forward zoning proceedings thus concluded district judgment county power go forward judgment infirm approach outlined opinion zoning proceedings allowed conclude may proceedings adequately recognize tribal interests make unnecessary action district otherwise district decide whether uses state permits brendale property serious injury clearly imperil protectible tribal interests identified opinion part case view therefore returned district majority however disagrees conclusion accordingly since respect wilkinson property justice stevens justice agree judgment appeals nos reversed judgment cases respect brendale property vacate judgment appeals remand case appeals instructions vacate judgment district remand case proceedings instead affirms judgment appeals dissent case judgment nos reversed footnotes oral argument counsel arguing petitioners represented decision bureau indian affairs april appeals issued opinion reopened roads closed area public tr oral arg see app brief petitioner brendale according counsel longer closed area reservation tr oral arg counsel respondents agreed characterization describing formerly closed area reservation reserved area based yakima nation zoning designation area despite developments justice stevens persists treating two areas differently post position rejected seven members see also post opinion blackmun continues rely district findings fact regarding brendale property undermined change circumstances opinion continue refer respective areas closed area open area convenience preparation eis underway yakima nation filed present action district addition brendale wilkinson yakima county yakima nation named defendants jim whiteside two county commissioners yakima county director planning department yakima county codeveloper brendale property prospective purchasers portions wilkinson property developer prospective purchasers dismissed parties order district see yakima indian nation whiteside supp ed whiteside yakima indian nation whiteside supp ed whiteside ii district found brendale proposed development disrupt soil conditions cause deterioration air quality change drainage patterns destroy trees natural vegetation cause deterioration wildlife habitat alter location density human population area increase traffic light use fuel wood require added police fire protection well new systems waste disposal also found number places religious cultural significance located closed area much tribe income comes lumber harvested lands within closed area unlike closed area however district found open area unique religious spiritual importance yakima nation trust land vicinity proposed wilkinson development provide significant source food tribe appeals remanded district findings fact respective interests yakima nation yakima county regulating wilkinson property since district made findings concerning brendale property confederated tribes bands yakima indian nation whiteside yakima county appeal judgment district whiteside respecting brendale property app issue presented petition certiorari concerned wilkinson property brendale wilkinson petitioned certiorari concerning property furthermore practical consequences justice stevens approach severe justice stevens conception tribal zoning authority allows indian tribes obtain power zone defining areas reservations contain small percentage fee lands post uncertainty result necessarily determination regulatory body bodies see post zoning jurisdiction land mention uncertainty tribe attempt assert jurisdiction far worse resulting scheme discussed infra contours zoning authority clearly defined resort courts protect tribal interests often required given disposition cases need address whether yakima nation retained sovereignty might also divested treaty statute wheeler see rice rehner yakima nation reliance statements retained tribal sovereignty national farmers union ins crow tribe iowa mutual ins laplante likewise misplaced neither cases decide whether indian tribe authority nonmembers involved instead established exhaustion rule allowing tribal courts initially determine whether jurisdiction left open possibility exercise jurisdiction later challenged federal see justice blackmun contends upholding zoning authority necessarily entai finding inherent authority police powers reasoning montana demonstrates may cases tribes assert power regulate activities valid interest post errors reasoning twofold first justice blackmun characterizes decision montana incorrectly hold montana tribe interest regulating fishing hunting fee land instead held tribe lacked interest sufficient justify tribal regulation second justice blackmun reasoning confirms rather disproves recognizing zoning authority equate tribal retained sovereignty police power justice blackmun view tribes evidently lack authority exercise power within police power legitimate interest regulation meaningless limitation valid exercise police power first instance government regulation must rationally related legitimate state interest see williamson lee optical justice blackmun asserts position general longer term advantages comprehensive land management justify tribal zoning fee land avoids uncertainty post broad position also authorize yakima nation zone fee land within reservation boundaries including within incorporated towns toppenish wapato harrah although justice blackmun purports avoid difficult question post appears principled basis exclude incorporated towns tribe zoning authority without leading uncertainty justice blackmun attempts dismiss hypothetical post cf oneida indian nation county oneida justice stevens joined justice delivered opinion announcing judgment concurring judgment nos granted many indian tribes including yakima nation power unknown sovereignty nation power exclude nonmembers entirely territory reserved tribe merrion jicarilla apache tribe stevens dissenting power necessarily must include lesser power regulate land use interest protecting tribal community thus proper resolution cases depends extent tribe virtually absolute power exclude either diminished federal statute voluntarily surrendered tribe facts record summarized justice white opinion ante dictate different answer two tracts land issue zoning process whereby community defines essential character whether driven concern health safety esthetics public values zoning provides mechanism polity ensures neighboring uses land mutually often unilaterally destructive justice sutherland observed landmark case euclid ambler realty power zone closely parallels common law nuisance thus finds guidance maxim sic utere tuo ut alienum non laedas use property manner injure another hence community reasonably might conclude factory place otherwise exclusively residential section amusement park belong area devoted quiet parks libraries schools nuisance law issue ultimately one whether proposed land use like pig parlor instead barnyard merely right thing wrong place indian tribe power exclude nonmembers defined geographical area obviously includes lesser power define character area new mexico mescalero apache tribe unanimous recognized tribe power exclude nonmembers entirely condition presence reservation well established likewise merrion wrote nonmembers lawfully enter tribal lands remain subject tribe power exclude power necessarily includes lesser power place conditions entry continued presence reservation conduct tribe grants right indian land tribe agrees exercise ultimate power oust long complies initial conditions entry however follow lawful property right indian land also immunizes tribe exercise power place conditions conduct continued presence reservation omitted emphasis original one time yakima nation power exclude nonmembers reservation near absolute power derived two sources tribe aboriginal sovereignty vast reaches land pacific northwest express provisions treaty even absence treaty provision expressly granting authority indian tribes maintain sovereign power exclusion unless otherwise curtailed see worcester georgia pet cohen handbook federal indian law hereinafter cohen op atty case many tribes see montana puyallup tribe washington game yakima nation power exclude confirmed express treaty provision treaty ratified senate proclaimed president buchanan yakima nation ceded millions acres land east main ridge cascade mountains exchange guarantee defined area approximately million acres reserved ceded lands use occupation aforesaid confederated tribes bands indians treaty yakima nation indians stat treaty provided entire tract shall set apart exclusive use benefit said confederated tribes bands indians indian reservation white man excepting employment indian department shall permitted reside upon said reservation without permission tribe superintendent agent thus tribe power exclude firmly established power regulate land use ran parallel power exclude tribe authority limit absolutely access reservation also limit access persons whose activities conform tribe general plan land use however indian general allotment act dawes act stat amended et extent reworked fundamental notions indian sovereignty dawes act president authorized allot reservation lands severalty resident indians allotted lands held trust members tribe period least years members received fee patents freely transfer land nonmembers lands allotted trusts expired reservation abolished mattz arnett see also moe confederated salish kootenai tribes manner dawes act designed ultimately abolish indian reservations attempting bring security civilization indian otis dawes act allotment indian lands long act took effect became apparent beneficent purpose failed indian reorganization act stat repudiated allotment policy see cohen interim however large portions reservation lands conveyed petitioners wilkinson brendale dawes act transfer regulatory power tribe state local governmental authority see moe confederated salish kootenai tribes supra mattz arnett supra nonetheless providing allotment ultimate alienation reservation land act respects diminished tribal authority recognized montana treaty rights respect reservation lands must read light subsequent alienation lands statute authorizes sale parcel land reservation must implicitly grant purchaser access property addition extent large portions reservation land sold fee tribe longer determine essential character region setting conditions entry parcels tribe legitimate interest regulation also diminished although inconceivable congress intended sale lots divest tribe power determine character tribal community equally improbable congress envisioned tribe retain interest regulating use vast ranges land sold fee nonmembers lack voice setting tribal policy since dawes act provided individual allotments held trust members tribe period least years evident tribal authority land use within reservation remained undiminished period least actual transfers land nonmembers began occur record contain chronology conveyances trust lands nonmembers tribe disclose extent fee ownership reservation lands time lawsuits began significantly establishes early tribe divided reservation two parts parties district consistently described closed area open area continues maintain closed area separate community division made many years either petitioner brendale petitioner wilkinson acquired title reservation land critical importance requires different disposition respective cases ii resolutions adopted tribal council yakima nation created known officially reservation restricted area commonly referred closed area relying language treaty assuring tribe exclusive use benefit reservation lands council resolution declared open range forested area yakima indian reservation remain closed general public protect area grazing forest wildlife resources resolution yakima tribal council emphasis supplied resolution entry area restricted enrolled members yakima tribe official agency employees persons bona fide property business interests close relatives enrolled members members certain tribes certain permittees ibid addition resolution provided ntry closed areas forbidden persons influence liquor ibid although closed area occupies acres consisting almost entire reservation acres owned fee yakima indian nation whiteside supp ed part area consists forests provide major source income tribe virtually fee land owned lumber companies whose operations subject regulation bureau indian affairs bia ibid cf white mountain apache tribe bracker excluding land owned lumber companies remaining fee land constitutes less one percent closed area permanent inhabitants yakima county portion closed area one highway traverses portion area several roads maintained bia provide access closed area interior apparently however county maintain roads portion reservation cf yakima indian nation whiteside supp ed tribe operates courtesy permit system allows selected groups visitors access closed area order protect area natural foods medicines natural resources activities visitors limited sightseeing hiking camping tribal bia family related business activity visitors expressly prohibited hunting fishing boating drinking operating vehicles established roads camping designated campsites removing flora fauna petrified wood valuable rocks minerals artifacts ibid tribal police game officers enforce courtesy permit system monitoring ingress egress four guard stations patrolling interior closed area ibid recently bia supported tribe policy denying entry closed area restricting use bia roads members tribe narrowly defined class permittees see ibid litigation government petitioner brendale eventually succeeded establishing right access property bia roads see brendale olney ed mar moreover bia ultimately decided allow public use bia roads constructed public funds see letter james bergmann acting assistant secretary indian affairs april reprinted app brief petitioner contrary suggestion justice white opinion see ante however fact nonmembers may drive roads change basic character closed area undermine tribe historic consistent interest preserving pristine character vast uninhabited portion reservation petitioner brendale property located heart closed portion reservation inherited property mother enrolled member yakima nation brendale filed proposal yakima county zoning authorities development subdivision consisting lots bia roads provide access property nearest county road miles away proposal contemplates construction recreational summer cabins sewage disposal systems interior access roads maintained homeowners association district found proposal number adverse environmental consequences interest yakima county possessed overseeing use brendale property providing regulatory functions citizens county appeal district decision holding tribe exclusive authority regulate land use closed area although logging operations construction bia roads transfer ownership relatively insignificant amount land closed area unquestionably diminished tribe power exclude portion reservation justify conclusion tribe surrendered historic right regulate land use restricted portion reservation maintaining power exclude nonmembers entering small portion closed area tribe preserved power define essential character area fact tribe exercised power taking care closed area remains undeveloped refuge cultural religious significance place tribal members may camp hunt fish gather roots berries tradition culture amended zoning regulations yakima indian nation resolution reprinted app question whether tribe authority prevent individuals portions closed area fee undermining general plan preserve character unique resource developing isolated parcels without regard otherwise common scheme simply question whether owners small amount fee land may bring pig parlor opinion congress possibly intended enacting dawes act tribes maintain power exclude bona fide purchasers reservation land property intended tribes lose control character reservations upon sale relatively small parcels land neither proposition explicit dawes act yet appear necessary reasonable operation allotment process cf seymour superintendent washington state penitentiary allotment open way settlers land reservation manner federal government acting guardian trustee indians regarded beneficial development wards mattz arnett sense tribe power zone like equitable servitude burden complying tribe zoning rules runs land without regard particular estate transferred cf cunningham stoebuck whitman law property pp hereinafter cunningham indeed strong authority proposition equitable servitudes fall within family property law easements see clark real covenants interests run land pound progress law equity harv rev basis concluding allotted property carried benefit one type servitude burden merrion case majority went step beyond narrow recognition reserved power held tribe power impose oil gas severance tax lessees reservation land derived power exclude reaching conclusion rejected lessee contention leasing land tribe relinquished power exclude thus lesser included power tax necessary go far however decide present case rather enough recognize notwithstanding transfer small percentage allotted land tribe retains legitimate interest preservation character reservation tribe power control use discrete fee parcels land simply incidental power preserve character remains almost entirely region reserved exclusive benefit tribe decision montana require different result first montana case involved discriminatory regulation tribe regulation prohibited hunting fishing property members tribe free engage activities contrast petitioners suggest member tribe allowed undertake development brendale proposes brendale seeks special privileged status second montana case careful point conduct fee lands posed threat welfare tribe sharp contrast case district expressly found planned development recreational housing places critical assets closed area jeopardy paramount concern threat closed area cultural spiritual values allow development unique undeveloped area drastically diminish intangible values turn undoubtedly negatively affect general health welfare yakima nation members must conclude therefore yakima nation may regulate use brendale makes fee land within reservation closed area view fact small proportion closed area owned fee deprive tribe right ensure area maintains unadulterated character particularly case zoning rule issue neutrally applied necessary protect welfare tribe interfere significant state county interest although application analysis advocated justice white provides assurance reservation overrun various uses inconsistent important tribal interests provide means tribe continue define character restricted area incremental shifts texture quality surrounding environment occasioned discrete decisions within expansive territory readily monitored regulated considering whether uses actually authorized relevant property imperiled political integrity economic security health welfare tribe ante therefore agree justice blackmun tribe may zone brendale property judgment appeals accordingly affirmed iii authority tribe enact enforce zoning ordinances applicable open area petitioner wilkinson property located requires different analysis although tribe originally power exclude entire reservation subsequent alienation half property open area produced integrated community economically culturally delimited reservation boundaries tribe longer power exclude nonmembers large portion area also lacks power define essential character territory result tribe interest preventing inconsistent uses dramatically curtailed reason agree justice white tribe lacks authority regulate use wilkinson property long land used manner federal law tribe special claim relief course retains authority regulate use trust land county contend otherwise see brief petitioners unlike closed area tribe makes attempt control access open area respect district found access area limited yakima nation members move freely throughout area county constructed maintained miles road equally accessible reservation residents general public app pet cert although tribe asserted authority regulate land use three incorporated towns never attempted sharp contrast pristine character closed area open area marked residential commercial developmen members yakima nation represent less percent open area total population indians alike eligible vote county elections enrolled members tribe however entitled participate tribal elections tr similarly county provides police protection public education social services indians app pet cert tr government services provided tribe although theoretically available residents practice generally used members tribe tr furthermore district found county substantial interest regulating land use open area particular protecting county valuable agricultural land open area lacks unique religious spiritual significance members yakima nation contrast closed area almost half land open area owned fee majority fee land located three incorporated towns open area approximately open area residents live remaining portion open area includes approximately acres irrigated farm land largely devoted agriculture tr acres farm land owned fee nonmembers another acres land owned yakima nation members leased ibid acres farmed tribal members petitioner wilkinson property bordered north trust land east south west fee land lot overlooks yakima municipal airport composed unfarmed sagebrush land ibid given large percentage land open area owned fee nonmembers additional portion leased nonmembers even tribe exercised power exclude nonmembers trust land unable thereby establish essential character region circumstances allowing nonmember use land manner might approved tribal council upset otherwise coherent scheme land use tribe complain nonmember seeks bring pig parlor unlike closed area tribe longer possesses power determine basic character area moreover unlikely congress intended give tribe power determine character area predominantly owned populated nonmembers represent percent population yet lack voice tribal governance finally extent open area lost character exclusive tribal resource become practical matter integrated portion county tribe also lost claim interest analogous equitable servitude change neighborhood doctrine equitable servitude lapses restriction applied general vicinity merely parcels become outmoded lost usefulness become inequitable enforce cunningham pp see also restatement property open area longer maintains character unique tribal asset tribe accordingly lacks substantial interest governing land use power zone become outmoded therefore agree justice white conclusion tribe lacks authority zone wilkinson property iv conclusion dramatically different facts two cases produce different results subject obvious criticism identify rule primary responsibility however vested legislature moreover inherent continuum exists reservations still maintain status distinct social structures become integrated local polities difficulty courts may encounter drawing line closed open portions reservations simply reflects factual predicate cases complicated indeed justice white rule little avoid difficulty drawing lines making subtle distinctions neither possible appropriate cases set fixed percentage fee ownership govern every case may arise impossible articulate precise rules govern whenever tribe asserts land use approved county board federal law although rule justice blackmun proposes provide obvious answer cases recognizes may reservations including yakima reservation essentially definable areas fee lands predominate tribe significant interest controlling land use post finally fundamentally unfair deny appropriate relief either party cases involves difficulty discerning proper line simply future case may difficult accordingly judgment appeals affirmed concur judgment nos reversing judgment appeals judgment affirmed million acres tribal land alienated allotment sale surplus lands amounting approximately total land held indian tribes see cohen citing office indian affairs dept interior indian land tenure economic status population trends labels closed area open area course irrelevant analysis important tribe maintained defined area small percentage land held fee another defined area approximately half land held fee county appeal presented question whether county might possess concurrent zoning jurisdiction closed area possibility county might jurisdiction prohibit certain land uses closed area suggest tribe lacks similar authority sort concurrent jurisdiction exist simply product unique overlapping governmental authority characterizes much jurisprudence see cotton petroleum new mexico moreover overlapping regulations inherently suspect developer land vicinity airport example must comply local zoning laws federal limitations height buildings may obstruct air travel likewise federal state environmental protection requirements may superimposed county tribal zoning ordinances although potential conflict county rules tribe rules certainly substantial neither inevitable incapable resolution tolerant cooperative approach problems generated continuing growth complexity diverse society according census total population portion yakima reservation within yakima county indians dept commerce bureau census census population table justice blackmun justice brennan justice marshall join concurring judgment dissenting nos combined judgment consolidated cases splitting tribal zoning authority fee lands open closed areas yakima indian reservation solomonic appearance compromise result arises two distinct approaches tribal sovereignty inconsistent past decisions undermines federal government longstanding commitment promotion tribal autonomy judgment tribe zoning authority fee lands open area reservation wrong view matter law fashions patently unworkable legal rule dissent nos justice stevens opinion reaches right result wrong reason respect tribe authority zone fee lands closed portion reservation concur judgment shall discuss justice white justice stevens opinions seriatim eight years ago decided montana case ruled indian tribe inherent authority prohibit hunting fishing fee lands located reservation owned tribe assert right interest infringed affected conduct today seems perfunctory discussion decisions montana justice white opinion reads case establishing general rule modified two narrow exceptions indian tribes authority activities reservations absent express congressional delegation ante applying rule justice white suggests montana second exception recognizes inherent tribal authority conduct threatens direct effect political integrity economic security health welfare tribe extend right indian tribe make rational comprehensive decisions reservation holding guarantee adjoining reservation lands subject inconsistent potentially incompatible zoning policies practical purposes strip tribes power protect integrity trust lands enjoy unquestioned exclusive authority montana need read require absurd result considered full context relevant decisions evident montana must read recognize inherent authority tribes exercise civil jurisdiction activities tribal reservations activities case land use implicate significant tribal interest justice white opinion reiterates general principle finds montana indian tribes authority activities absent express congressional delegation ante concededly montana suggested exercise tribal power beyond necessary protect tribal control internal relations inconsistent dependent status tribes survive without express congressional delegation montana simply one even recent long line decisions discussing nature inherent tribal sovereignty cases landmarks years jurisprudence establish different general principle governing inherent tribal sovereignty principle according tribes retain sovereign powers reservation lands unless exercise sovereignty inconsistent overriding interests national government see washington confederated tribes colville indian reservation montana specifically two exceptions montana recognizes anomalous general principle must read rich extensive background cases considered clear nothing montana precludes indeed montana contemplates exercise civil jurisdiction activities tribal reservation including power zone fee lands reservation activities implicate significant tribal interest crucial step process interpreting montana step justice white opinion neglects place case spectrum came time long colonies declared independence england european nations recognized native tribes continent sovereign political communities earliest jurisprudence immediately american revolution followed settled understanding international law sovereignty individual tribes domestic dependent nations placed protection survived incorporation within except necessarily diminished landmark cherokee cases chief justice marshall held dependent status tribes divested aspects sovereignty particular authority engage governmental relations foreign powers power alienate land inherently inconsistent paramount authority approach inherent tribal sovereignty remained essentially constant critical respects century half john marshall first illumination subject montana decision time stated congress retains authority abrogate tribal sovereignty sees fit tribal sovereignty implicitly divested except limited circumstances principally involving external powers sovereignty exercise tribal authority necessarily inconsistent tribes dependent status see wheeler implicit divestiture powers necessarily lost virtue tribe dependent status colville implicit divestiture exercise tribal sovereignty inconsistent overriding interests national government tribes seek engage foreign relations alienate lands without federal consent prosecute tribal courts accord full protections bill rights indeed remarkable jurisprudence inherent tribal sovereignty except aspects sovereignty recognized cherokee cases necessarily divested prior montana never thereafter found additional sovereign power relinquished upon incorporation oliphant suquamish indian tribe held tribes inherent criminal jurisdiction tribal light nearly universal understanding dating origins country dealings tribes possess criminal jurisdiction except permitted treaty light federal constitution extraordinary protections intrusions personal liberty concluded inherent criminal jurisdiction inconsistent dependent status tribes decision colville subsequent oliphant expressly establishes nothing oliphant negates historical understanding tribes retain substantial civil jurisdiction observed federal government explicitly recognized century indian tribes possess broad measure civil jurisdiction activities indian reservation lands tribes significant interest noted historical understandings regarding civil jurisdiction differ sharply underlying oliphant upholding inherent tribal authority tax cigarette sales civil jurisdiction cases subsequent montana reaffirmed view held without equivocation tribal civil jurisdiction reservation lands aspect tribal sovereignty necessarily divested reason tribes incorporation within dominant society merrion jicarilla apache tribe upheld tribe inherent authority impose severance tax mining reservation taxing authority even wrote inherent power necessary tribal territorial management iowa mutual ins laplante noted tribal authority activities reservation lands important part tribal sovereignty civil jurisdiction activities presumptively lies tribal courts unless affirmatively limited specific treaty provision federal statute citations omitted cases like predecessors clearly recognize tribal civil jurisdiction reservation lands consistent dependent status tribes given background read montana held tribe inherent authority prohibit hunting fishing fee lands within reservation respect montana general principle creating presumption tribal civil jurisdiction absent express congressional delegation find evident simply missed usual way although opinion reads restatement revision existing doctrine contains language flatly inconsistent prior decisions defining scope inherent tribal jurisdiction colville notably support anomalous general principle montana opinion relies mainly line cases address issue irrelevant issue inherent tribal sovereignty may exercise jurisdiction activities reservation see montana citing fisher district sixteenth judicial district montana mescalero apache tribe jones mcclanahan arizona state tax williams lee surprisingly critical importance deciding instant cases montana presumption found place subsequent decisions discussing inherent sovereignty see new mexico mescalero apache tribe national farmers union ins crow tribe iowa mutual ins supra recognize montana strangely reversed otherwise consistent presumption favor inherent tribal sovereignty reservation lands excise decision jurisprudence despite reversed presumption plain language montana expressly preserves substantial tribal authority activity reservations including fee lands particularly may sensibly read recognizing inherent tribal authority zone fee lands montana explicitly recognizes tribes retain inherent sovereign power exercise forms civil jurisdiction reservations even fee lands specifically montana holds tribes civil jurisdiction enter contracts leases arrangements tribe conduct threatens direct effect political integrity economic security health welfare tribe even conduct occurs fee lands thus despite montana reversal usual presumption favor inherent sovereignty reservation activity decision reasonably may read view read recognize tribes may regulate conduct whenever significant tribal interest threatened directly affected construed montana fits relative ease constellation sovereignty jurisprudence approach tribe valid regulatory interest established nature land ownership diminish tribe inherent power regulate area consistent cases affirmed reaffirmed tribal sovereignty large part geographically determined indian tribes written unique aggregations possessing attributes sovereignty members territory mazurie emphasis added see also white mountain apache tribe bracker repeatedly emphasized significant geographical component tribal sovereignty held lands obtained allotment policy permitted purchase lands located within reservations remain part reservations unless congress explicitly provides contrary mattz arnett tribal jurisdiction considered vary fee lands trust lands resulting impractical pattern checkerboard jurisdiction contrary federal statute policy moe confederated salish kootenai tribes quoting seymour superintendent washington state penitentiary thus merrion case cited approval appeals decision buster wright appeal dism affirming right tribe tax fee lands either state sovereignty loses power govern people within borders existence towns cities therein endowed usual powers municipalities ownership occupancy land within territorial jurisdiction citizens foreigners merrion quoting buster wright emphasis added merrion difficult conceive power central economic security health welfare tribe montana power zone full agreement majority zoning may indeed essential function performed local government village belle terre boraas marshall dissenting quoted part approval young american mini theatres concurring opinion fundamental sovereign power local governments control land use especially vital indians enjoy unique historical cultural connection land see fpc tuscarora indian nation black dissenting anyone doubt tribe inability zone substantial tracts fee land within reservation tracts inextricably intermingled reservation trust lands destroy tribe ability engage systematic coordinated utilization land essence zoning authority see williams american land planning law merrion held power impose severance tax oil gas producers reservation inherent power necessary tribal territorial management hard pressed find reason zoning authority critical aspect ultimate instrument territorial management deemed lie within inherent sovereignty tribes well thus montana fit within indian sovereignty jurisprudence zoning authority even fee lands must fall within scope tribal jurisdiction montana finding inherent zoning authority way conflict montana actual holding explicitly recognized mescalero apache critical difficulty montana tribe failure even allege whose fishing hunting sought regulate measure affecting identifiable tribal interest see indeed montana subsequently appears cases stands tribes may assert civil jurisdiction nonmembers fee lands absent showing montana words conduct threatens direct effect political integrity economic security health welfare tribe justice white opinion rejects reading montana several reasons none withstand scrutiny first opinion notes montana recognition tribal sovereignty conduct threatens political economic integrity health welfare tribe prefaced word may linguistic turn majority reads suggesting tribal sovereignty always retained ante read context think clear use word may expression doubt existence tribal sovereignty enumerated circumstances rather reflection obvious fact comment pure dictum definitive statement issue presented case surely inappropriate second justice white opinion suggests applying montana language literally problem zoning fee lands create peculiar untenable situation zoning authority vary time tribe state depending effect proposed land use might tribe ante hypothetical problem entirely justice white creation montana literal language require claims determination whether proposed use fee land threaten political integrity economic security health welfare tribe threat tribe derive solely proposed uses specific parcels fee lands admittedly vary time place threat stems loss general longer term advantages comprehensive land management majority offers tribes falls far short meeting legitimate needs justice white opinion fashions newfangled federal cause action tribe may bring suit federal enjoin particular proposed land use seriously imperils political integrity economic security health welfare tribe ante resort proposed cause action may ultimately prevent blatantly abusive uses reservation lands opportunity engage protracted litigation every proposed land use conflicts tribal interests nothing recognize tribe legitimate sovereign right regulate lands within reservation view active management land use difference zoning nuisance litigation justice white opinion also claims acting protect expectations landowners agree need certainty zoning laws valid concern justice white true concern practical consequences never adopt rule proposes today know tribe tribe authority zone trust lands within reservation justice white opinion majority respect open area established regime guarantees neither state tribe able establish comprehensive zoning plan although majority rule landowners may certain zoning authority controls use land adjoining parcels land throughout open area reservation throughout entire reservation justice white theory zoned different zoning authorities competing perhaps inconsistent priorities practice nothing short nightmare nullifying efforts sovereigns segregate incompatible land uses exacerbating already considerable tensions exist local tribal governments many parts nation best use reservation lands event justice white opinion really explain general inability tribe control land use numerous tracts land interspersed across reservation inherently threaten political integrity economic security health welfare tribe instead opinion claims hold tribes inherent zoning power fee lands hold tribes exercise every police power lands holding contrary result montana ante concern misplaced necessarily follow finding inherent zoning authority fee lands checkerboarded reservation authority indispensable fulfillment tribe uncontested right zone trust lands also entails finding inherent authority police powers montana demonstrates may cases tribes assert power regulate activities valid interest zoning clearly case short view inherent sovereignty decisions including montana tribes retain power zone fee lands reservation justice white opinion presents single thread logic proposition zoning power inconsistent overriding interest national government therefore necessarily divested zoning power fundamental political economic security tribe therefore reserved tribe plain language montana instead expense tribal rights many precedents years federal policy justice white opinion replaces sovereignty form legal tokenism opportunity sue replaced opportunity exercise sovereign authority substitution without sound basis law without practical value justice white opinion misreads decisions defining limits inherent tribal sovereignty justice stevens opinion disregards decisions altogether grounding tribe authority zone fee lands exclusively power exclude reservation refusing even consider whether tribe inherent authority might support zoning fee lands open area justice stevens opinion appears implicitly conclude tribes inherent authority reservation lands evident discussion justice white opinion conclusion stands flat contradiction every relevant indian sovereignty case decided justice stevens opinion also odds reservation disestablishment decisions see seymour superintendent washington state penitentiary mattz arnett moe confederated salish kootenai tribes justice stevens distinguishes open closed areas reservation ground congress enacting dawes act intended tribes maintain zoning authority fee lands open area yakima reservation allotment reservation lands produced integrated community economically culturally delimited reservation boundaries ante fail see distinction squared decisions specifically rejecting arguments reservation areas dawes act resulted substantial land ownership treated differently jurisdictional purposes areas tribal holdings predominate see seymour see justice stevens theory squared unequivocal holdings cases dawes act diminish reservation status reservation lands alienated owners even part reservation lost indian identity see mattz precedents aside justice stevens opinion points authority either text dawes act legislative history support critical conjecture lthough inconceivable congress intended sale lots divest tribe power determine character tribal community equally improbable congress envisioned tribe retain interest regulating use vast ranges land sold fee nonmembers lack voice setting tribal policy ante see also ante moreover even justice stevens right congressional intent time dawes act matter policy allotment sale surplus reservation land repudiated indian reorganization act stat amended codified et seq mattz see also moe surely considering whether congress intended tribes enjoy civil jurisdiction including zoning authority fee lands reservation areas ownership predominates direct attention intent congress passed dawes act rather intent congress repudiated dawes act established indian policies heir congress definitively interpreted executive branch time intended tribal civil jurisdiction extend lands reservation whether owned tribe members thereof outsiders see supra quoting powers indian tribes practical level justice stevens approach zoning authority poses even greater difficulties justice white approach justice stevens opinion establish regime checkerboard zoning authority open areas every reservation require intrinsically standardless threshold determination section reservation contains sufficient land holdings warrant open classification justice stevens opinion suggests benchmark making determination imagine none moreover extent justice stevens opinion discusses characteristics reservation area tribe possesses authority zone preserved essential character reservation characteristics betray stereotyped almost patronizing view indians reservation life opinion describes closed area yakima reservation pristine emphasizes spiritually significant tribe yields natural foods medicines ante opinion contrasts unadulterated portion reservation open area marked residential commercial developmen ante citation omitted view even justice stevens analysis must case tribes retain essential character reservations necessary exercise zoning authority forgo economic development maintain reservations according single perhaps quaint view characteristically indian today sum justice stevens opinion proposes approach tribal authority radically different inconsistent past decisions approach rests irrelevant conjecture congressional intent approach generally unsound concur even partially justice stevens opinion however partially attractive results past decisions common sense compel finding tribe zoning authority lands within reservation ii concluded tribe inherent authority zone fee lands question remains whether authority exclusive whether coextensive authority state acting county place extended discussion indian preemption law suffice say cases recognize authority exercise jurisdiction activities reservation see new mexico mescalero apache tribe authority either unlawfully infringe right reservation indians make laws ruled white mountain apache quoting williams lee interferes incompatible federal tribal interests reflected federal law unless state interests stake sufficient justify assertion state authority mescalero apache applying test recognized coextensive state tribal civil jurisdiction exercise concurrent authority violence rights either sovereign see washington confederated tribes colville indian reservation state taxation cigarette purchases intrude upon diminish tribe authority also tax view however concurrent zoning jurisdiction nature unworkable concurrent zoning authority practical effect nullifying zoning authority sovereigns every instance two establish different permissible land uses tract land presumably scheme concurrent jurisdiction every proposed land use satisfy stringent two competing zoning codes system obviously defeat efforts sovereigns establish comprehensive plans systematic use lands within respective jurisdictions confronted similar problem mescalero apache state sought concurrent jurisdiction hunting fishing reservation even though state regulations conflict sometimes restrictive tribe regulations held state authority important emphasize stated concurrent jurisdiction effectively nullify tribe authority control hunting fishing reservation concurrent jurisdiction empower new mexico wholly supplant tribal regulations holds true concurrent jurisdiction defeat tribe ability regulate land use reservation fee lands moreover significantly impair ability zone trust lands many areas intermingled lands state exercise controlling authority accordingly although state may assert zoning authority reservation areas tribe exercised zoning powers tribe chooses assert zoning authority authority must exclusive conclusion though derived federal statutory law finds considerable support federal government active longstanding policy encouraging tribal iowa mutual ins laplante federal indian policy includes congress overriding goal encouraging tribal economic development mescalero apache quoting white mountain apache long recognized tribal authority conduct must construed generously order comport federal policy encouraging tribal independence shall rehearse many federal statutes noted appeals recognize tribal sovereignty encourage tribal specifically facilitate encourage tribal management indian resources promote transfer zoning authority federal government tribe see confederated tribes bands yakima indian nation whiteside unlike appeals find room remand consider closely nature county conflicting interests determined tribe one entity power zone trust lands also power zone fee lands inherent unworkability concurrent zoning requires conclusion tribe power zone chooses exercise power exclusive balancing interests required thus hold open closed lands county yakima without authority zone reservation lands including fee lands cohen handbook federal indian law see also worcester georgia pet settled doctrine law nations weaker power surrender independence right associating stronger taking protection weak state order provide safety may place protection one powerful without stripping right government ceasing state see cherokee nation georgia pet worcester georgia pet see also johnson mcintosh wheat justice white opinion asserts wheeler made clear tribal regulatory authority relations necessarily inconsistent dependent status therefore divested ante wheeler says thing clear justice white opinion selective quotation placed context issue wheeler whether conviction indian tribal charge contributing delinquency minor federal prosecution second criminal proceeding arising incident barred double jeopardy clause resolution issue turned whether tribe criminal jurisdiction indian defendant stemmed inherent authority instead federal authority delegated tribe congress discussing length general rule indian tribes still possess aspects sovereignty withdrawn treaty statute implication necessary result dependent status held tribe retained inherent authority punish indian offenders first noted congress far divesting tribes power consistently recognized turned question whether criminal jurisdiction necessarily divested virtue dependent status tribes stated sovereign power tribe prosecute members tribal offenses clearly fall within part sovereignty indians implicitly lost virtue dependent status areas implicit divestiture sovereignty held occurred involving relations indian tribe nonmembers tribe thus indian tribes longer freely alienate land occupy enter direct commercial governmental relations foreign nations recently held try nonmembers tribal courts limitations rest fact dependent status indian tribes within territorial jurisdiction necessarily inconsistent freedom independently determine external relations power including power prescribe enforce internal criminal laws different type involve relations among members tribe citations omitted understanding consistent definitive administrative interpretation inherent indian sovereignty lands reservation whether owned tribe members thereof outsiders tribe sovereign power determining conditions upon persons shall permitted enter domain reside therein business powers indian tribes justice white read iowa mutual ins laplante reaching question whether tribal courts civil jurisdiction dismisses case establishing exhaustion rule permitting tribal courts determine jurisdiction lack thereof first instance ante see also national farmers union ins crow tribe justice white however read little holding issue jurisdiction civil suit brought arising tort occurring reservation land must resolved tribal courts first instance iowa mutual reaffirm exhaustion rule established national farmers union iowa mutual also stands proposition civil jurisdiction recognized part inherent tribal sovereignty exists unless affirmatively limited specific treaty provision federal statute indeed citations found montana rule governing tribal sovereignty appear dissent decision upholding tribal taxing authority merrion jicarilla apache tribe dissent denial certiorari case appeals upheld tribal civil jurisdiction city polson confederated salish kootenai tribes checkerboarding problem evident case wilkinson property bounded trust land north fee land south east west yakima indian nation whiteside supp ed fee lands scattered throughout reservation checkerboard pattern confederated tribes bands yakima indian nation whiteside complaint case allege hunting fishing reservation lands impaired tribe hunting fishing rights montana moreover complaint allege hunting fishing fee lands imperil ed subsistence welfare tribe may reservations including yakima reservation essentially definable areas fee lands predominate tribe significant interest controlling land use note yakima reservation includes three incorporated towns harrah toppenish wapato comprise almost exclusively fee lands confederated tribes bands yakima indian nation whiteside since tribe never attempted zone lands within incorporated towns litigation present difficult question whether tribe interest comprehensive zoning sufficient justify exercise zoning authority discrete portion reservation includes appreciable percentage trust lands agree justice white ante subsequent events obliterated distinction open closed areas reservation informed district appeals decisions absent distinction see difference brendale wilkinson properties therefore disagree appeals cases remanded district consideration state interest zoning wilkinson property appeals concluded tribe established sufficient interest zoning wilkinson property support inherent power zone unworkability concurrent zoning state zoning land