BRENDALE v. CONFEDERATED TRIBES AND BANDS OF THE YAKIMA INDIAN NATION Et Al.

492 U.S. 408, 109 S. Ct. 2994, 106 L. Ed. 2d 343, 1989 U.S. LEXIS 3288

• Court: Supreme Court of the United States
• Decided: June 29, 1989
• Docket: 87-1622
• Status: Published

Opinions

Justice White,

joined by The Chief Justice, Justice Sc alia, and Justice Kennedy, delivered an opinion announcing the judgment of the Court in Nos. 87-1697 and 87-1711 and dissenting in No. 87-1622.

The issue presented by these three consolidated cases is whether the Yakima Indian Nation or the County of Yakima, a governmental unit of the State of Washington, has the authority to zone fee lands owned by nonmembers of the Tribe located within the boundaries of the Yakima Reservation.

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The Confederated Bands and Tribes of the Yakima Indian Nation are composed of 14 originally distinct Indian Tribes that banded together in the mid-1800’s to negotiate with the United States. The result of those negotiations was a treaty signed in 1855 and ratified by the Senate in 1859. Treaty between the United States and the Yakima Nation of Indians (Treaty with the Yakimas), 12 Stat. 951. By the terms of the treaty, the Yakima Nation ceded vast areas of land to the United States but retained an area, the Yakima Indian Reservation, for its “exclusive use and benefit.” Id., at 952.¹

The reservation is located in the southeastern part of the State of Washington. Approximately 1.3 million acres of land are located within its boundaries. Of that land, roughly 80% is held in trust by the United States for the benefit of the Yakima Nation or individual members of the Tribe. The remaining 20% of the land is owned in fee by Indian or non-Indian owners. Most of the fee land is found in Toppenish, Wapato, and Harrah, the three incorporated towns located in the northeastern part of the reservation. The remaining fee land is scattered throughout the reservation in a “checkerboard” pattern.

The parties to this litigation, as well as the District Court and the Court of Appeals, have treated the Yakima Reservation as divided into two parts: a “closed area” and an “open area.” The closed area consists of the western two-thirds of the reservation and is predominantly forest land. Of the approximately 807,000 acres of land in the closed area, 740,000 acres are located in Yakima County. Twenty-five thousand acres of the seven hundred and forty thousand acres are fee land. ' The closed area is so named because it has been closed to the general public at least since 1972 when the Bureau of Indian Affairs restricted the use of federally maintained roads in the area to members of the Yakima Nation and to its permittees, who must be record landowners or associated with the Tribe.² Access to the open area, as its name suggests, is not likewise restricted to the general public. The open area is primarily rangeland, agricultural land, and land used for residential and commercial development. Almost half of the land in the open area is fee land.

B

The Yakima Nation adopted its first zoning ordinance in 1970. The ordinance was amended to its present form in 1972. By its terms, the Yakima Nation ordinance applies to all lands within the reservation boundaries, including fee lands owned by Indians or non-Indians. Yakima County adopted its present comprehensive zoning ordinance in 1972, although the county had regulated land use as early as 1946. The county ordinance applies to all real property within county boundaries, except for Indian trust lands. The ordinance establishes a number of use districts, which generally govern agricultural, residential, commercial, industrial, and forest watershed uses. The particular zoning designations at issue are “forest watershed” and “general rural.”

The fee lands located in the closed area are zoned by the county ordinance as forest watershed. That designation permits development of single-family dwellings, commercial campgrounds, small overnight lodging facilities, restaurants, bars, general stores and souvenir shops, service stations, marinas, and sawmills. The minimum lot size is one-half acre. None of these uses would be permitted by the zoning designation “reservation restricted area,” which applies to the closed area under the Yakima Nation zoning ordinance.

The general rural zoning designation, applicable to land in the open area, is one of three use districts governing agricultural properties. The minimum lot size for land zoned general rural is smaller than that specified for agricultural land in the Yakima Nation ordinance, although the other county use districts for agricultural properties have larger minimum lot sizes than the Yakima Nation ordinance.

C

Petitioner Philip Brendale, who is part Indian but not a member of the Yakima Nation, owns a 160-acre tract of land near the center of the forested portion of the closed area. The parcel was originally allotted to Brendale’s great aunt, a member of the Yakima Nation. The land passed by inheritance to Brendale’s mother and grandfather, who were issued a fee patent in 1963, and then, on his mother’s death in 1972, to Brendale: The land is zoned as reservation restricted area by the Yakima Nation. It is zoned forest watershed by Yakima County.

In January 1982, Brendale filed four contiguous “short plat” applications with the Yakima County Planning Department. After determining that the short platting did not require an Environmental Impact Statement (EIS), the department issued a Declaration of Non-Significance. The department requested comments from the Yakima Nation, and after the Tribe did not respond, the short plats were approved.

Brendale then submitted in April 1983 a “long plat” application to divide one of his platted 20-acre parcels into 10 2-acre lots to be sold as summer cabin sites. Each lot is to have an individual well and a septic tank. Electric generators would provide electricity. The proposed plat is bordered on the north and east by other lands owned by Brendale, on the south by lands owned in fee by the St. Regis Paper Company, and on the west by lands held in trust by the United States. The proposed development would not have been permissible under the Yakima Nation ordinance.

The county planning department again issued a Declaration of Non-Significance. The Yakima Nation appealed the Declaration of Non-Significance to the Yakima County Board of Commissioners on the grounds that the county had no zoning authority over the land and that an EIS was necessary. The commissioners concluded that the appeal was properly before the Board but reversed the planning department and ordered that an EIS be prepared.³

Petitioner Stanley Wilkinson, a non-Indian and a nonmember of the Yakima Nation, owns a 40-acre tract of land in the open area of the reservation. The tract is located less than a mile from the northern boundary of the reservation and is on a slope overlooking the Yakima Municipal Airport and the city of Yakima. The land is bordered on the north by trust land and on the other three sides by fee land, and is currently vacant sagebrush property. It is zoned agricultural by the Yakima Nation and general rural by Yakima County.

In September 1983, Wilkinson applied to the Yakima County Planning Department to subdivide 32 acres of his land into 20 lots. The lots range in size from 1.1 acres to 4.5 acres. Each is to be used for a single-family home and will be served by individual wells and septic systems. The proposed development would not have been permissible under the Yakima Nation ordinance.

The planning department initially indicated that an EIS needed to be prepared for the project, but later, after Wilkinson modified his proposal, the department issued a Declaration of Non-Significance. The Yakima Nation thereafter appealed the Declaration of Non-Significance, again challenging the county’s authority to zone the land and alleging that an EIS was necessary. The county board of commissioners concluded that the appeal was properly before it and affirmed the planning department’s conclusion that an EIS was not necessary.

D

The Yakima Nation then filed separate actions in United States District Court challenging the proposed development of the Brendale and Wilkinson properties and the county’s exercise of zoning authority over the land.⁴ The complaints sought a declaratory judgment that the Yakima Nation had exclusive authority to zone the properties at issue and an injunction barring any action or the approval of any action on the land inconsistent with the land-use regulations of the Yakima Nation.

The District Court held that the Yakima Nation had exclusive zoning authority over the Brendale property, Yakima Indian Nation v. Whiteside, 617 F. Supp. 735, 744, 747 (ED Wash. 1985) (Whiteside I), but concluded that the Tribe lacked authority over the Wilkinson property, Yakima Indian Nation v. Whiteside, 617 F. Supp. 750, 758 (ED Wash. 1985) (Whiteside II). The District Court looked to this Court’s opinion in Montana v. United States, 450 U. S. 544 (1981), as controlling whether an Indian tribe has authority to regulate activities of nonmembers of the tribe on fee lands. The District Court determined that there was no evidence of any “consensual relationship” between the Yakima Nation and Wilkinson and Brendale that would extend the authority of the Tribe to the fee lands. 617 F. Supp., at 743; 617 F. Supp., at 757. But after making detailed findings of fact,⁵ the court concluded that “Brendale’s proposed development does indeed pose a threat to the political integrity, the economic security and the health and welfare of the Yakima Nation,” and therefore the Tribe has authority to impose its zoning regulations on that property. 617 F. Supp., at 744. The District Court then proceeded to determine that Yakima County was pre-empted from exercising concurrent zoning authority over the land in the closed area because its interests in regulating the land were minimal while the Tribe’s interests were substantial. Id., at 747. But because Wilkinson’s proposed development did not impose a similar threat, the Tribe had no authority whatsoever over that property. 617 F. Supp., at 758.

On appeal, the Ninth Circuit consolidated the cases and affirmed as to the Brendale property but reversed as to the Wilkinson property. Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside, 828 F. 2d 529 (1987). In upholding the Yakima Nation’s zoning authority, the Court of Appeals did not disturb or rely on the findings of the District Court. Instead, it concluded that zoning ordinances by their very nature attempt “to protect against the damage caused by uncontrolled development, which can affect all of the residents and land of the reservation.” Id., at 534. According to the Court of Appeals, zoning ordinances are within the police power of local governments precisely because they promote the health and welfare of the community. Moreover, a “major goal” of zoning is coordinated land-use planning. Because fee land is located throughout the reservation in a checkerboard pattern, denying the Yakima Nation the right to zone fee land “would destroy [its] capacity to engage' in comprehensive planning, so fundamental to a zoning scheme.” This the court was “unwilling” to do. Id., at 534-535.⁶

Brendale, Wilkinson, and Yakima County each petitioned for writ of certiorari.⁷ We granted the petitions and consolidated the cases for argument. 487 U. S. 1204 (1988).

1 — 1 1 — 1

The present actions were brought by the Yakima Nation to require development occurring on property within the boundaries of its reservation to proceed in accordance with the Yakima Nation zoning ordinance. The Tribe is necessarily contending that it has the exclusive authority to zone all of the property within the reservation, including the projects at issue here. We therefore examine whether the Yakima Nation has the authority, derived either from its treaty with the United States or from its status as an independent sovereign, to zone the fee lands owned by Brendale and Wilkinson.

A

The Yakima Nation argues first that its treaty with the United States establishes its authority to regulate fee land within the reservation but owned by nonmembers of the Tribe. By its terms, the Treaty with the Yakimas provides that the land retained by the Yakima Nation “shall be set apart... for the exclusive use and benefit” of the Tribe, and no “white man, excepting those in the employment of the Indian Department, [shall] be permitted to reside upon the said reservation without permission of the tribe.” 12 Stat. 951, 952. The Yakima Nation contends that this power to exclude provides the source for its authority over the land at issue here.

We disagree. The Yakima Nation no longer retains the “exclusive use and benefit” of all the land within the reservation boundaries established by the Treaty with the Yakimas. Under the Indian General Allotment Act, 24 Stat. 388, significant portions of the Yakima Reservation, including the tracts of land at issue here, were allotted to individual members of the Tribe. The land was held in trust for a period of years, generally 25 although the period was subject to extension, after which fee patents were issued. Id., at 389, §5. Over time, through sale and inheritance, nonmembers of the Tribe, such as petitioners Brendale and Wilkinson, have come to own a substantial portion of the allotted land.

We analyzed the effect of the Allotment Act on an Indian tribe’s treaty rights to regulate activities of nonmembers on fee land in Montana v. United States. The treaty language there was virtually identical to the language in the Treaty with the Yakimas, 450 U. S., at 558, and we concluded that “treaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands.” Id., at 561. See also Puyallup Tribe, Inc. v. Washington Game Dept., 433 U. S. 165, 174 (1977). In Montana, as in the present cases, the lands at issue had been alienated under the Allotment Act, and the Court concluded that “[i]t defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government.” 450 U. S., at 560, n. 9.

The Yakima Nation argues that we should not consider the Allotment Act because it was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984. But the Court in Montana was well aware of the change in Indian policy engendered by the Indian Reorganization Act and concluded that this fact was irrelevant. 450 U. S., at 560, n. 9. Although the Indian Reorganization Act may have ended the allotment of further lands, it did not restore to the Indians the exclusive use of those lands that had already passed to non-Indians or prevent already allotted lands for which fee patents were subsequently issued from thereafter passing to non-Indians.

Justice Stevens acknowledges that the Allotment Act eliminated tribal authority to exclude nonmembers from fee lands they owned. Post, at 436-437. Yet he concludes that Brendale and Wilkinson are somehow subject to a tribal power to “determine the character of the tribal community,” post, at 437, unless the Tribe has voluntarily surrendered that power. This view of tribal zoning authority as a sort of equitable servitude, post, at 442, is wholly unsupported by precedent.

Justice Stevens begins with a tribe’s power to exclude nonmembers from its land and from that power derives a tribal “power to define the character of” that land, post, at 434, which he asserts as the basis for the Yakima Nation’s exercise of zoning authority over the closed area of its reservation. According to Justice Stevens, the power to exclude “necessarily must include the lesser power to regulate land use in the interest of protecting the tribal community.” Post, at 438. But the Yakima Nation no longer has the power to exclude fee owners from its land within the boundaries of the reservation, as Justice Stevens concedes. Post, at 437. Therefore, that power can no longer serve as the basis for tribal exercise of the lesser included power, a result which is surely not “inconceivable,” post, at 437, but rather which is perfectly straightforward. It is irrelevant that the Tribe had declared the closed area off limits before Brendale obtained title to his property. Once Brendale obtained title to his land that land was no longer off limits to him; the tribal authority to exclude was necessarily overcome by, as Justice Stevens puts it, an “implicit] grant” of access to the land. Ibid.

Aside from the alleged inconceivability of the result, Justice Stevens offers no support for his assertion that in enacting the Allotment Act Congress intended tribes to retain the “power to determine the character of the tribal community.” Ibid. Justice Stevens cites only Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351 (1962), and Mattz v. Arnett, 412 U. S. 481 (1973), in support of his position. Post, at 441-442. Those cases are irrelevant to the issue at hand, however, concluding merely that allotment is consistent with continued reservation status. Meanwhile, Montana is directly to the contrary: the Court there flatly rejected the existence of a power, derived from the power to exclude, to regulate activities on lands from which tribes can no longer exclude nonmembers. See 450 U. S., at 559. Justice Stevens’ attempts to distinguish Montana are unavailing. The distinctions on which he relies, that the regulation there was discriminatory, posed no threat to the welfare of the Tribe, and infringed on state interests, post, at 443-444, are not even mentioned in the section of the Montana opinion considering the power to exclude, see 450 , and certainly were not considered by the Court in that case as having any relevance to this issue.⁸

We would follow Montana and conclude that, for the reasons stated there, any regulatory power the Tribe might have under the treaty “cannot apply to lands held in fee by non-Indians.” Id., at 559.

An Indian tribe’s treaty power to exclude nonmembers of the tribe from its lands is not the only source of Indian regulatory authority. In Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 141 (1982), the Court held that tribes have inherent sovereignty independent of that authority arising from their power to exclude. Prior to the European settlement of the New World, Indian tribes were “self-governing sovereign political communities,” United States v. Wheeler, 435 U. S. 313, 322-323 (1978), and they still retain some “elements of ‘quasi-sovereign’ authority after ceding their lands to the United States and announcing their dependence on the Federal Government,” Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, 208 (1978). Thus, an Indian tribe generally retains sovereignty by way of tribal self-government and control over other aspects of its internal affairs. Montana, supra, at 564.

A tribe’s inherent sovereignty, however, is divested to the extent it is inconsistent with the tribe’s dependent status, that is, to the extent it involves a tribe’s “external relations.” Wheeler, 435 U. S., at 326.⁹ Those cases in which the Court has found a tribe’s sovereignty divested generally are those “involving the relations between an Indian tribe and nonmembers of the tribe.” Ibid. For example, Indian tribes cannot freely alienate their lands to non-Indians, Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667-668 (1974), cannot enter directly into commercial or governmental relations with foreign nations, Worcester v. Georgia, 6 Pet. 515, 559 (1832), and cannot exercise criminal jurisdiction over non-Indians in tribal courts, Oliphant, supra, at 195.

This list is by no means exclusive, as Montana makes clear. In Montana, the Crow Tribe sought to prohibit hunting and fishing within its reservation by anyone not a member of the Tribe. The Court held that the Tribe’s inherent sovereignty did not support extending the prohibition on hunting and fishing to fee lands owned by non-Indians. It recognized the general principle that the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” 450 U. S., at 564. Because regulation of hunting and fishing on fee lands owned by nonmembers of the Tribe did not bear any “clear relationship to tribal self-government or internal relations,” ibid., this general principle precluded extension of tribal jurisdiction to the fee lands at issue.

The Yakima Nation contends that the Court’s insistence in Montana on an express congressional delegation of tribal power over nonmembers is inconsistent with language in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 153 (1980), that tribal powers are divested by implication only when “the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government.” We do not see this language as inconsistent with Montana. As the opinion in Colville made clear, that case involved “[t]he power to tax transactions occurring on trust lands and significantly involving a tribe or its members.” 447 U. S., at 152. It did not involve the regulation of fee lands, as did Montana. Moreover, the Court in Montana itself reconciled the two cases, citing Colville as an example of the sort of “consensual relationship” that might even support tribal authority over nonmembers on fee lands. 450 U. S., at 565-566.¹⁰

Justice Blackmun takes a slightly different approach, relying particularly on Colville and Wheeler for the proposition that “tribal sovereignty is not implicitly divested except in those limited circumstances principally involving external powers of sovereignty where the exercise of tribal authority is necessarily inconsistent with their dependent status.” Post, at 451-452. But Justice Blackmun ignores what the Court made clear in Wheeler, in a passage immediately preceding the one he cites: that regulation of “the relations between an Indian tribe and nonmembers of the tribe” is necessarily inconsistent with a tribe’s dependent status, and therefore tribal sovereignty over such matters of “external relations” is divested. 435 U. S., at 326. Indeed, it is precisely this discussion that the Court relied upon in Montana as “distinguishing] between those inherent powers retained by the tribes and those divested.” 450 U. S., at 564.

There is no contention here that Congress has expressly delegated to the Yakima Nation the power to zone fee lands of nonmembers of the Tribe. Cf. 18 U. S. C. §§ 1151, 1161 (1982 ed., and Supp. V); 33 U. S. C. §§ 1377(e) and (h)(1) (1982 ed., Supp. V). Therefore under the general principle enunciated in Montana, the Yakima Nation has no authority to impose its zoning ordinance on the fee lands owned by petitioners Brendale and Wilkinson.

Our inquiry does not end here because the opinion in Montana noted two “exceptions” to its general principle. First, “[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 450 U. S., at 565. Second, “[a] tribe may also 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 the political integrity, the economic security, or the health or welfare of the tribe.” Id., at 566.

The parties agree that the first Montana exception does not apply in these cases. Brendale and Wilkinson do not have a “consensual relationship” with the Yakima Nation simply by virtue of their status as landowners within reservation boundaries, as Montana itself necessarily decided. The Yakima Nation instead contends that the Tribe has authority to zone under the second Montana exception. We disagree.

Initially, we reject as overbroad the Ninth Circuit’s categorical acceptance of tribal zoning authority over lands within reservation boundaries. We find it significant that the so-called second Montana exception is prefaced by the word “may” — “[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation.” Ibid, (emphasis added). This indicates to us that a tribe’s authority need not extend to all conduct that “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe,” but instead depends on the circumstances. The Ninth Circuit, however, transformed this indication that there may be other cases in which a tribe has an interest in activities of nonmembers on fee land into a rule describing every case in which a tribe has such an interest. Indeed, the Ninth Circuit equated an Indian tribe’s retained sovereignty with a local government’s police power, which is contrary to Montana itself. Montana rejected tribal sovereignty to regulate hunting and fishing on fee land owned by non-Indians, which clearly is a power within the police power of local governments.¹¹

It is also evident that a literal application of the second exception would make little sense in the circumstances of these cases. To hold that the Tribe has authority to zone fee land when the activity on that land has the specified effect on Indian properties would mean that the authority would last only so long as the threatening use continued. If it ceased, zoning power would revert to the county. Under the District Court’s interpretation of Montana, not only would regulatory authority depend in the first instance on a factual inquiry into how a tribe’s interests are affected by a particular use of fee land, but as circumstances changed over time, so, too, would the authority to zone. Conceivably, in a case like this, zoning authority could vest variously in the county and the Tribe, switching back and forth between the two, depending on what uses the county permitted on the fee land at issue. Uncertainty of this kind would not further the interests of either the Tribe or the county government and would be chaotic for landowners.¹²

Montana should therefore not be understood to vest zoning authority in the tribe when fee land is used in certain ways. The governing principle is that the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land. The inquiry thus becomes whether, and to what extent, the tribe has a protectible interest in what activities are taking place on fee land within the reservation and, if it has such an interest, how it may be protected. Of course, under ordinary law, neighbors often have a protectible interest in what is occurring on adjoining property and may seek relief in an appropriate forum, judicial or otherwise. Montana suggests that in the special circumstances of checkerboard ownership of lands within a reservation, the tribe has an interest under federal law, defined in terms of the impact of the challenged uses on the political integrity, economic security, or the health or welfare of the tribe. But, as we have indicated above, that interest does not entitle the tribe to complain or obtain relief against every use of fee land that has some adverse effect on the tribe. The impact must be demonstrably serious and must imperil the political integrity, the economic security, or the health and welfare of the tribe. This standard will sufficiently protect Indian tribes while at the same time avoiding undue interference with state sovereignty and providing the certainty needed by property owners.

Since the tribes’ protectible interest is one arising under federal law, the Supremacy Clause requires state and local governments, including Yakima County zoning authorities, to recognize and respect that interest in the course of their activities. The Tribe in this case, as it should have, first appeared in the county zoning proceedings, but its submission should have been, not that the county was without zoning authority over fee land within the reservation, but that its tribal interests were imperiled. The federal courts had jurisdiction to entertain the Tribe’s suit for declaratory and in-junctive relief,¹³ but given that the county has jurisdiction to zone fee lands on the reservation and would be enjoinable only if it failed to respect the rights of the Tribe under federal law, the proper course for the District Court in the Brendale phase of this case would have been to stay its hand until the zoning proceedings had been completed. At that time, a judgment could be made as to whether the uses that were actually authorized on Brendale’s property imperiled the political integrity, the economic security, or the health or welfare of the Tribe. If due regard is given to the Tribe’s protectible interest at all stages of the proceedings, we have every confidence that the nightmarish consequences predicted by Justice Blackmun, post, at 460-461, will be avoided. Of course if practice proves otherwise, Congress can take appropriate ' action.

Ill

The District Court found that Yakima County’s exercise of zoning power over the Wilkinson property would have no direct effect on the Tribe and would not threaten the Tribe’s political integrity, economic security, or health and welfare. Whiteside II, 617 F. Supp., at 755. On the basis of these findings, it is clear that the Wilkinson development and the county’s approval of that development do not imperil any interest of the Yakima Nation. Therefore, I would reverse the judgment of the Ninth Circuit as to the Wilkinson property.

The Brendale property presents a different situation. At the time the Tribe filed its suit, the county had agreed with the Tribe that an EIS was required before Brendale’s development could go forward. The zoning proceedings had thus not been concluded, and the District Court’s judgment was that the county had no power to go forward. That judgment was infirm under the approach outlined in this opinion. The zoning proceedings should have been allowed to conclude, and it may be that those proceedings would adequately recognize tribal interests and make unnecessary further action in the District Court. If it were otherwise, the District Court could then decide whether the uses the State permits on the Brendale property would do serious injury to, and clearly imperil, the protectible tribal interests identified in this opinion. This part of the case in my view should therefore be returned to District Court. A majority of this Court, however, disagrees with this conclusion.

Accordingly, since with respect to the Wilkinson property, Justice Stevens and Justice O’Connor agree that the judgment of the Court of Appeals in Nos. 87-1697 and 87-1711 should be reversed, that is the judgment of the Court in those cases. With respect to the Brendale property, I would vacate the judgment of the Court of Appeals and remand the case to the Court of Appeals with instructions to vacate the judgment of the District Court and to remand the case to that Court for further proceedings. Because the Court instead affirms the judgment of the Court of Appeals in No. 87-1622, I dissent as to that case.

The judgment in Nos. 87-1697 and 87-1711 is

Reversed.

1 The treaty further provides that no “white man, excepting those in the employment of the Indian Department, [shall] be permitted to reside upon the said reservation without permission of the tribe and the superintendent and agent.” 12 Stat. 951, 952.

2 At oral argument, counsel arguing for petitioners represented that a decision by the Bureau of Indian Affairs in April 1988, after the Court of Appeals issued its opinion here, has reopened the roads in the closed area to the public. Tr. of Oral Arg. 17. See App. to Brief for Petitioner Brendale la. According to counsel, there is no longer a closed area on the reservation. Tr. of Oral Arg. 17. Counsel for respondents agreed with this characterization, describing what had formerly been the closed area as the “reservation reserved area,” based on the Yakima Nation’s zoning designation for the area. Id, at 28. Despite these developments, Justice Stevens persists in treating the two areas differently, post, at 439-440, a position that is rejected by seven Members of the Court, see also, post, at 468, n. 10 (opinion of BLACKMUN, J.), and continues to rely on the District Court’s findings of fact regarding the Brendale property, which are undermined by the change in circumstances. This opinion will continue to refer to the respective areas as the closed area and the open area, but for convenience only.

3 Preparation of the EIS was underway when the Yakima Nation filed the present action in District Court.

4 In addition to Brendale, Wilkinson, and Yakima County, the Yakima Nation named as defendants Jim Whiteside and two other County Commissioners of Yakima County, the Director of the Planning Department of Yakima County, the codeveloper of the Brendale property, and prospective purchasers of portions of the Wilkinson property. The developer and the prospective purchasers were dismissed as parties by order of the District Court. See Yakima Indian Nation v. Whiteside, 617 F. Supp. 735, 737, n. 1 (ED Wash. 1985) (Whiteside I); Yakima Indian Nation v. Whiteside, 617 F. Supp. 750, 751, n. 1 (ED Wash. 1985) (Whiteside II).

5 The District Court found that Brendale’s proposed development would disrupt soil conditions; cause a deterioration of air quality; change drainage patterns; destroy some trees and natural vegetation; cause a deterioration of wildlife habitat; alter the location and density of human population in the area; increase traffic, light, and the use of fuel wood; and require added police and fire protection as well as new systems for waste disposal. The court also found that a number of places of religious and cultural significance were located in the closed area and that much of the Tribe’s income comes from lumber harvested from lands within the closed area. 617 F. Supp., at 741-742. Unlike the closed area, however, the District Court found that the open area had no unique religious or spiritual importance to the Yakima Nation and that the trust land in the vicinity of the proposed Wilkinson development did not provide a significant source of food for the Tribe. 617 F. Supp., at 755.

6 The Court of Appeals then remanded to the District Court for findings of fact on the respective interests of the Yakima Nation and Yakima County in regulating the Wilkinson property, since the District Court had made such findings only concerning the Brendale property. Confederated Tribes and Bands of the Yakima Indian Nation v. Whiteside, 828 F. 2d 529, 536 (CA9 1987).

7 Yakima County did not appeal the judgment of the District Court in Whiteside I, respecting the Brendale Property, App. 7, 11, and the only issue presented in its petition for certiorari concerned the Wilkinson property. Brendale and Wilkinson each petitioned for certiorari concerning their own property.

8 Furthermore, the practical consequences of Justice Stevens’ approach will be severe. Justice Stevens’ conception of tribal zoning authority allows Indian tribes to obtain the power to zone by defining areas on their reservations that contain only a “small percentage” of fee lands. Post, at 437-438, n. 2. The uncertainty that would result from the necessarily case-by-case determination of which regulatory body (or bodies, see post, at 440-441, n. 3) has zoning jurisdiction over such land, not to mention the uncertainty as to when a tribe will attempt to assert such jurisdiction, would be far worse than that resulting from the scheme discussed infra, at 430-432, in which the contours of the zoning authority are clearly defined and resort to the courts to protect tribal interests should not often be required.

9 Given our disposition of these cases, we need not address whether the Yakima Nation’s retained sovereignty might also have been divested by treaty or statute. United States v. Wheeler, 435 U. S. 313, 323 (1978). See, e. g., Rice v. Rehner, 463 U. S. 713, 724 (1983).

10 The Yakima Nation’s reliance on statements about retained tribal sovereignty in National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985), and Iowa Mutual Ins. Co. v. LaPlante, 480 U. S. 9 (1987), is likewise misplaced. In neither of those cases did the Court decide whether the Indian Tribe had authority over the nonmembers involved. Instead, the Court established an exhaustion rule, allowing the tribal courts initially to determine whether they have jurisdiction, and left open the possibility that the exercise of jurisdiction could be later challenged in federal court. See 471 U. S., at 856-857; 480 U. S., at 16, 19.

11 Justice Blackmun contends that upholding zoning authority does not necessarily “entai[l] a finding of inherent authority for all police powers,” reasoning that “[a]s Montana itself demonstrates, there may be cases in which tribes assert the power to regulate activities as to which they have no valid interest.” Post, at 461-462. The errors in this reasoning are twofold. First, Justice Blackmun characterizes the decision in Montana incorrectly. The Court did not hold in Montana that the Tribe had no interest in regulating non-Indian fishing and hunting on fee land. Instead, it held that the Tribe lacked an interest sufficient “to justify tribal regulation.” 450 U. S., at 566. Second, Justice Blackmun’s reasoning confirms, rather than disproves, that recognizing zoning authority here will equate tribal retained sovereignty with the police power. Under Justice Blackmun’s view, tribes evidently lack authority to exercise a power within the police power only when they have no legitimate interest in the regulation. But this is a meaningless limitation because to be a valid exercise of the police power in the first instance a government regulation must be rationally related to a legitimate state interest. See, e. g., Williamson v. Lee Optical Co., 348 U. S. 483, 491 (1955).

12 Justice Blackmun asserts that his position, that “the general and longer term advantages of comprehensive land management” justify tribal zoning of fee land, avoids this uncertainty. Post, at 460. But this broad position would also authorize the Yakima Nation to zone all fee land within reservation boundaries, including that within the incorporated towns of Toppenish, Wapato, and Harrah. Although Justice Blackmun purports to avoid this “difficult question,” post, at 467, n. 9, there appears to be no principled basis on which to exclude the incorporated towns from the Tribe’s zoning authority without leading to the very uncertainty Justice Blackmun attempts to dismiss as hypothetical, post, at 459.

13 Cf. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 677 (1974).