THAT A COURT CONSIDERING THIS ISSUE WOULD CONCLUDE THAT THE APPLICATION OF STATE HEALTH CARE REGULATIONS TO A FACILITY LOCATED ON INDIAN LAND THAT TREATS ONLY INDIANS BELONGING TO THE TRIBE OWNING THE LAND ON WHICH THE FACILITY IS LOCATED WOULD INFRINGE UPON THOSE INDIANS' RIGHT TO GOVERN THEMSELVES.
AS TO THE SECOND KIND OF FACILITY (ONE THAT TREATS NON-INDIANS OR MEMBERS OF OTHER TRIBES) DIFFERENT CONSIDERATIONS ARE APPLICABLE. AS TO SUCH A FACILITY, ONE MUST UNDERTAKE THE BALANCING OF FEDERAL, TRIBAL AND STATE INTERESTS (AS SET FORTH IN WHITE MOUNTAIN, SUPRA) IN ORDER TO DETERMINE WHETHER STATE HEALTH CARE REGULATIONS MAY BE PROPERLY APPLIED TO THE FACILITY. SEE ALSO SEQUNDO V. CITY OF RANCHO MIRAGE, 813 F.2D 1387, 1390-91 (9TH CIR. 1987).
THIS BALANCING INQUIRY IS USUALLY UNDERTAKEN BY COURTS THAT HAVE A FACTUAL RECORD BEFORE THEM. THESE COURTS REVIEW PARTICULAR FACTUAL RECORDS IN ORDER TO ASSESS THE STRENGTH OF THE INTERESTS INVOLVED. SUCH A FACT-BASED REVIEW IS NECESSARY BECAUSE THE NATURE OF PARTICULAR INTERESTS MAY VARY FROM CASE TO CASE. FOR EXAMPLE, A STATE'S INTEREST IN REGULATING THE CONDUCT OF NON-INDIANS ON INDIAN COUNTRY MAY DEPEND IN PART, ON WHICH STATE LAWS ARE INVOLVED. A STATE MIGHT HAVE A STRONGER INTEREST IN ENFORCING LAWS REGARDING HAZARDOUS WASTES THAN IN ENFORCING MINOR TRAFFIC LAWS. SIMILARLY, ONE PARTICULAR KIND OF STATE REGULATORY ACTIVITY MAY HAVE A GREATER IMPACT ON TRIBAL SELF GOVERNMENT THAN ANOTHER KIND OF STATE REGULATION.
IN CONSIDERING THE QUESTIONS RAISED IN YOUR LETTER, I DO NOT HAVE ANY FACTUAL RECORD BEFORE ME. AS A RESULT, I CANNOT MAKE ANY DEFINITIVE STATEMENTS AS TO HOW THE SPECIFIC FEDERAL, TRIBAL, AND STATE INTERESTS INVOLVED SHOULD BE BALANCED. NEVERTHELESS, IF NONINDIANS ARE TREATED AT A HEALTH CARE FACILITY ON INDIAN LAND, THE STATE'S INTEREST IN PROTECTING THOSE INDIVIDUALS BY ENFORCING ITS REGULATIONS WOULD PROBABLY BE QUITE STRONG. UNLESS STATE ENFORCEMENT WOULD SIGNIFICANTLY INFRINGE UPON A TRIBE'S RIGHT TO GOVERN ITSELF (PERHAPS BY CONFLICTING WITH THE TRIBE'S OWN HEALTH REGULATIONS, IF IT HAS ANY), I WOULD THINK THAT THE STATE'S INTEREST IN PROTECTING ITS OWN CITIZENS WOULD SUPPORT ENFORCEMENT OF STATE HEALTH REGULATIONS TO FACILITIES TREATING NON-INDIANS OR MEMBERS OF OTHER TRIBES.
THIS GENERAL STATEMENT NEEDS TO BE QUALIFIED SOMEWHAT, FOR THERE ARE A NUMBER OF DECISIONS THAT HAVE HELD THAT CERTAIN STATE LAWS MAY NOT BE APPLIED EVEN TO NON-INDIAN ACTIVITIES WITHIN INDIAN COUNTRY. SEE E.Q., WHITE MOUNTAIN, 448 U.S. AT 145-152 (HOLDING STATE TAXATION OF LOGGING OPERATIONS OF NON-INDIANS ON INDIAN COUNTRY TO BE PRECLUDED); SEQUNDO, 813 F.2D AT 1392-94 (CONCLUDING THAT STATE RENT CONTROL ORDINANCE CANNOT BE APPLIED TO NON-INDIANS IN INDIAN COUNTRY). HOWEVER, CASES FINDING A LACK OF STATE JURISDICTION OVER NON-INDIAN ACTIVITIES IN INDIAN COUNTRY HAVE GENERALLY INVOLVED AN EXTENSIVE FEDERAL REGULATORY SCHEME THAT PREEMPTED STATE LAW. FOR EXAMPLE, IN SEQUNDO, THE NINTH CIRCUIT FOUND THAT FEDERAL REGULATIONS CONCERNING THE LEASING OF INDIAN LAND INDICATED THAT THE STATE LACKED AUTHORITY TO REGULATE LEASING ON ITS OWN.
IN THE HEALTH CARE FIELD, CONGRESS HAS ENACTED A NUMBER