# Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation

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## Concurring Opinion

    Blackmun
United States Supreme Court
492 U.S. 408
Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation
Certiorari to the United States Court of Appeals for the Ninth Circuit
No. Nos 87-1622, 87-1697 and 87-1711 Argued: January 10, 1989 --- Decided: June 29, 1989
Rehearings Denied in Nos. 87-1697 and 87-1711 Aug. 30, 1989.
See 492 U.S. 937, 110 S.Ct. 22.
Syllabus
The treaty between the United States and the Yakima Indian Nation (Yakima Nation or Tribe) provided that the Tribe would retain its reservation for its "exclusive use and benefit," and that "no white man [shall] be permitted to reside upon the said reservation without [the Tribe's] permission." Much of the reservation is located in Yakima County, Washington. Roughly 80% of the reservation land is held in trust by the United States for the Tribe or its individual members, and the remaining 20% is owned in fee by Indian or non-Indian owners. Most of the fee land is found in three towns, and the rest is scattered throughout the reservation in a "checkerboard" pattern. The reservation is divided into two parts: a "closed area," which is so named because it has been closed to the general public, and an "open area," which is not so restricted. Only a small portion of the closed area consists of fee land, while almost half of the open area is fee land. The Tribe's zoning ordinance applies to all lands within the reservation, including fee lands owned by Indians or non-Indians, while the county's zoning ordinance applies to all lands within its boundaries, except for Indian trust lands. Petitioners Brendale and Wilkinson (hereinafter petitioners), who own land in the closed and open areas respectively, filed applications with the Yakima County Planning Department to develop their lands in ways not permitted by the Tribe's ordinance but permitted by the county ordinance. The department issued declarations to both petitioners which, in effect, authorized their developments, and the Tribe appealed the declarations to the county board of commissioners on the ground, inter alia, that the county had no zoning authority over the land in question. After the board concluded that the appeals were properly before it and issued decisions, the Tribe filed separate actions in District Court challenging the proposed developments and seeking declaratory judgments that the Tribe had exclusive authority to zone the properties at issue and injunctions barring any county action inconsistent with the Tribe's ordinance. The court held that the Tribe had exclusive jurisdiction over the Brendale property but lacked authority over the Wilkinson property, concluding that Brendale's proposed development, but not Wilkinson's, posed a threat to the Tribe's political integrity, economic security, and health and welfare, and therefore was impermissible under Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493. The court also determined that the county was pre-empted from exercising concurrent zoning authority over closed area lands because its interests in regulating those lands were minimal while the Tribe's were substantial. The Court of Appeals consolidated the cases and affirmed as to the Brendale property but reversed as to the Wilkinson property. In upholding the Tribe's zoning authority, the court concluded that, because fee land is located throughout the reservation in a checkerboard pattern, denying the Tribe its right under its local governmental police power to zone fee land would destroy its capacity to engage in comprehensive planning.
Held: The judgment is affirmed in part and reversed in part.
828 F.2d 529 (CA9 1987): No. 87-1622, affirmed; Nos. 87-1697 and 87-1711, reversed.
Justice WHITE, joined by THE CHIEF JUSTICE, Justice SCALIA, and Justice KENNEDY, announced the judgment of the Court in Nos. 87-1697 and 87-1711, concluding that:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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