Knight v. Shoshone and Arapahoe Indian Tribes of Wind River Reservation, Wyo., 80-1810

Decision Date08 February 1982
Docket NumberNo. 80-1810,80-1810
PartiesJames D. KNIGHT, et al., Appellants, v. The SHOSHONE AND ARAPAHOE INDIAN TRIBES of the WIND RIVER RESERVATION, WYOMING, Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Bradley L. Booke, Lander, Wyo., for appellants.

Harry R. Sachse and William R. Perry of Sonosky, Chambers & Sachse and R. Anthony Rogers and Susan O. Berghoef of Wilkinson, Cragun & Barker, Washington, D. C., for appellees.

BREITENSTEIN, Circuit Judge.

This appeal questions the validity and applicability of a tribal zoning ordinance adopted by the Shoshone and Arapahoe Indian Tribes and affecting fee lands owned by non-Indians and located within an Indian Reservation. The district court ordered a partial summary judgment and a preliminary injunction requiring compliance with the zoning ordinance. District court jurisdiction is based on 28 U.S.C. § 1362 and appellate jurisdiction on 28 U.S.C. § 1292(a). We affirm.

A stipulation of the parties covers all of the pertinent facts. An 1868 treaty, 15 Stat. 673, created the Wind River Reservation for the Shoshone Indians. Since the year of the treaty the Arapahoe Tribe has shared the Reservation with the Shoshones and has been accorded a right of joint occupancy. See Shoshone Tribe v. United States, 299 U.S. 476, 495, 57 S.Ct. 244, 250-51, 81 L.Ed. 360. The reservation contains some 2,300,000 acres in west-central Wyoming along the Big Wind River at the foot of the Wind River Mountains. Ownership of the land is divided among the Tribes, the United States in trust for Indians and individual Indians, and non-Indians. About 6,000 Indians live on the Reservation. The land involved in this case was originally acquired by non-Indians through purchases from Indian allottees.

In the summer of 1978 defendants-appellants James and Karen Knight, non-Indians and the then fee owners of the pertinent land, discussed with the local office of the Bureau of Indian Affairs, BIA, plans for the subdivision of their land. At that time no tribal ordinance governed land use control.

On November 15, 1978, the Arapahoe Business Council and the Shoshone Business Council, the governmental bodies for the Reservation, enacted Tribal Ordinance No. 38, a tribal zoning code. It expressly applies to:

"(A)ll lands within the exterior boundaries of the Wind River Reservation, whether held in trust by the U. S. for the benefit of individual Indians, or for the Shoshone and Arapahoe Tribes, or held in fee by Indians or non-Indians."

The Tribes submitted the code to BIA which answered that the adoption of the code was within the authority of the Tribes and did not require BIA approval. The code was not recorded in Fremont County where the land is located, and was not published in the Federal Register.

By January, 1979, the Knights had prepared plats for a 32-lot subdivision to be called Big Wind Ranchettes No. 1 and a 100-lot subdivision to be called Big Wind Ranchettes No. 2. The plats were presented to the Fremont County Planning Commission which approved them subject to approval by the County Commissioners. Approval by the County Commissioners was never obtained.

The Knights proceeded to plat, subdivide, and sell lots. By mid-November, 1979, 18 trailers and 4 houses had been placed on the lots and 11 wells dug.

In September, 1979, the Tribes brought this action against the Knights and their grantees to enjoin the development of the subdivision and to recover damages. Some of the defendants counterclaimed for money damages from the Tribes. Others cross-claimed against the Knights alleging fraud and other charges. The State of Wyoming intervened as a defendant. The court granted a preliminary injunction. The parties entered into a comprehensive stipulation of the facts and filed cross-motions for summary judgment. The issues presented to the court were whether the Tribes had legal authority to regulate the use of non-Indian owned, fee patented lands located within the exterior boundaries of the Reservation and whether, if the power existed, the zoning code was a valid exercise of that power. The court answered each question in the affirmative, and continued the preliminary injunction with the requirement that the defendants were given time in which to apply to the Tribe for approval of the subdivision and the Tribes should promptly act on any application. The court's order contained detailed findings of fact and a lengthy discussion of the law. All defendants, except the State of Wyoming, filed a joint notice of appeal. Section 1292(a), 28 U.S.C., gives appellate jurisdiction to review the injunction. After the case was docketed in the Court of Appeals, the motion of several of the defendants to dismiss the appeal as to them was granted. Only the Knights, the Developers, have filed a brief in the Court of Appeals.

The district court held, and we agree, that the case presents no jurisdictional problem. The action was brought by Indian Tribes duly recognized by the Secretary of the Interior to enforce a right which they claim under the Constitution, laws, and treaties of the United States. See 28 U.S.C. § 1362. The Tribes allege and show that they have no adequate remedy at law and will suffer irreparable injury unless the requested relief is granted.

The Developers argue that the Tribes have no authority to control the use of fee lands by non-Indians without a delegation by Congress of such power. We disagree. Indian Tribes have "attributes of sovereignty over both their members and their territory." Merrion v. Jicarilla Apache Tribe, --- U.S. ----, ----, 102 S.Ct. 894, 903, 70 L.Ed.2d ----, 42 CCH S.Ct. p. 1121, 1129, citing United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 718, 42 L.Ed.2d 706. Included in the Tribal power is "a broad measure of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest." Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 152-153, 100 S.Ct. 2069, 2080-81, 65 L.Ed.2d 10. Civil jurisdiction is distinguishable from the criminal jurisdiction over non-Indians which was denied in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212, 98 S.Ct. 1011, 1022, 55 L.Ed.2d 209.

In the situation presented no treaty provision is of any pertinence and Congress has not acted to delegate or deny the right to control use of non-Indian owned land located within the reservation. Denial of the right does not arise by implication as a necessary result of their (the Tribes) dependent status. See United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303; Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 1245, recognizes that: ...

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    ...De La Cruz, 671 F.2d 363 (tribe's interest in enforcing building, health, and safety regulations); Knight v. Shoshone & Arapahoe Indian Tribes, 670 F.2d 900 (10th Cir.1982) (tribe's interest in enforcing zoning ordinance). Red Fox has not referred this court to any law of the Standing Rock ......
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  • Chilkat Indian Village v. Johnson, 86-4312
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    ...of federal law. Lying as it does on the boundaries of tribal jurisdiction, this case is far more like Knight v. Shoshone & Arapahoe Indian Tribes, 670 F.2d 900 (10th Cir.1982), in which the Tenth Circuit held that a tribe's suit to enforce its land-use ordinance against non-Indians arose un......
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    ...of non-members on fee land. See Burrell v. Armijo, 456 F.3d 1159 (10th Cir.2006); Knight v. Shoshone and Arapahoe Indian Tribes of the Wind River Reservation, Wyoming, 670 F.2d 900, 902 (10th Cir.1982). Concerning the three types of land described by the Tribe in the fifth amended complaint......
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