| Generally, the states and, more often, municipalities enact zoning laws that direct the use of land within their borders. However, though a Native American reservation may lie within a particular jurisdiction, the tribal land is not subject to control by such entities. Rather, Native American tribes enjoy sovereignty over their members and their land to the extent such sovereignty is not obstructed by federal statute or treaty. Native American "land" is that land that has been set apart for the use of Native Americans as such, at the direction of the federal government.
Tribal self-government forms the basis for the land use planning of tribal land and a reservation operates much like its own city or state. Just as one city may not impose its zoning ordinances on another city, states and municipalities may not prescribe zoning laws applicable to a Native American reservation. Though frequently espoused in various federal statutes, the recognition of the tribal right to self-governance was reiterated in the Tribal Self-Governance Amendments of 2000 (TSGA). In the TSGA, the federal government recognized a government-to-government relationship with Native American tribes based on the United States Constitution, treaties, federal statutes, and the course of dealing between the federal government and Native American tribes.
Not all land encompassed within reservation borders is owned by the tribe or its members. While it is clear that the tribe may enact zoning laws covering the use of land owned by the tribe or its members, there is not as clear-cut authority for the applicability of the tribe's zoning laws to land owned by others. It appears that the determination of whether land owned by non-members is subject to tribal zoning laws is dependent on the extent of non-member ownership of land in the area. If such non-member ownership is so extensive that it has changed the character of the land, it is likely that the tribe no longer retains zoning authority over the land. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |