Tribe Denied Power Over Nonmember's Land

     (CN) - The Shoshone-Bannock Tribes of Idaho cannot regulate home construction by a nonmember on land he owns within the Fort Hall Reservation, the 9th Circuit ruled Thursday.
     David Evans inherited land near Pocatello, one of several plots of "non-Indian fee land" within the 800-square-mile reservation, and hired Sage Builders to construct a home there in 2012. Though Evans obtained a building permit from Power County, he did not seek authorization from the 5,822-member Shoshone-Bannock Tribes.
     After Evans ignored the tribe's request that he submit a building permit, along with permit fees, to them, tribal authorities issued a stop-work order and threatened to fine him $500 a day if he continued to dodge the tribe's regulations.
     Evans, Sage and a subcontractor sought a federal ruling that the tribes had no jurisdiction over non-Indian fee land, but U.S. District Judge B. Lynn Winmill in Pocatello said that they had to first take the issue to the tribal court. Winmill denied Evan's move for an injunction and dismissed the case.
     A three-judge federal appeals panel in Portland unanimously reversed on Thursday.
     "The tribes plainly lack the power to regulate Evans' conduct," Judge Milan Smith wrote for the court.
     To gain such power and assert tribal-court jurisdiction in the case, the tribes would have had to show that Evans' home-building threatened their "political integrity, economic security, or health or welfare," according to the ruling.
     The tribes failed to show any such threats, the panel found, noting that Evans' would not be the first home to be built by a nonmember within the reservation.
     "To begin with, the area contains many residential properties owned and inhabited by nonmembers," Smith wrote. "Additionally, the city of Pocatello operates the Pocatello Municipal Airport on non-Indian fee land a short distance from Evans' parcel."
     Smith added that, "because the tribes plainly lack the authority to regulate Evans' construction of a single-family house on non-Indian fee land, the District Court erred in concluding that exhaustion is required."
     Attorney Mark EchoHawk argued for the tribes that the plaintiffs were attempting to wriggle away from tribal-court jurisdiction at the expense of the "tribal court system and decades of federal legislative, executive, and judicial policy supporting tribal courts."
     "Rather than exhaust tribal remedies as required, plaintiffs prematurely sued the tribes in federal court, seeking an order declaring that the tribes cannot ever assert jurisdiction of any kind over the plaintiffs, regardless of what they may do on the reservation," EchoHawk wrote in an appellate brief.
     He further argued that the question of whether the tribe can regulate Evans cannot be answered "until the tribal court has had a full opportunity to develop the record and consider the question in the first instance."
     Finding, however, that the "exhaustion requirement is not absolute," the appellate court allowed Evans to forgo tribal court and predicted the "overwhelming likelihood of success on the merits" of his case.
     EchoHawk has yet to return a request for comment.