A Most Essential Power: The Case for Restoring Comprehensive Land Use Authority in Indian Country

Authors

Michelle Bryan, Alexander Blewett III School of Law, University of Montana

Abstract

Part I of this article provides a brief overview of allotment and its lingering jurisdictional quagmire on impacted reservations. Stepping outside of Indian Country, Part II then outlines the U.S. Supreme Court’s longstanding recognition of sweeping, area-wide government land use authority—authority it considers among the “most essential” and “least limitable.” The Court has never applied this established law when determining tribal sovereignty over land use. That application is long overdue.

Part III details how we arrived at this state of affairs—how tribes, despite starting with sovereign control over land use throughout their territories, experienced losses in that authority over time due to judicial error. This Part contrasts the Court’s double-speak regarding the “essentiality” of land use authority, depending on whether the case arises within or outside of an Indian reservation. Not surprisingly, this flawed jurisprudence has negatively impacted tribes’ welfare and undermined the current federal policy of tribal self-determination.

Part IV thus argues that the Court should restore tribes’ comprehensive land use authority, outlining three potential pathways of reasoning. While legal work-arounds also exist and should be explored— such as Congressional authorization or inter-governmental cooperative agreements—this article focuses on a judicial course correction in order to establish a more enduring baseline of sovereignty in federal Indian law. Finally, the article concludes that federal jurisprudence and policies should align in favor of comprehensive authority over land use in Indian Country, regardless of the ownership status of an individual parcel.