Santa Rosa Band of Indians v. Kings County

• Decision Date: 03 November 1975
• Docket Number: No. 74-1565,74-1565
• Citation: 532 F.2d 655
• Parties: SANTA ROSA BAND OF INDIANS et al., Plaintiffs-Appellees, v. KINGS COUNTY et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 655

532 F.2d 655

SANTA ROSA BAND OF INDIANS et al., Plaintiffs-Appellees, v. KINGS COUNTY et al., Defendants-Appellants.

No. 74-1565.

United States Court of Appeals, Ninth Circuit.

Nov. 3, 1975.

Rehearing and Rehearing In Banc Denied March 26, 1976.

Larry G. McKee (argued), Deputy County Counsel, County of Kings, Hanford, Cal., for defendants-appellants.

George Forman (argued), of Cal. Indian Legal Services, Oakland, Cal., for plaintiffs-appellees.

OPINION

Before KOELSCH and DUNIWAY, Circuit Judges, and KELLEHER, ^* District Judge.

KOELSCH, Circuit Judge:

This case presents important questions regarding the extent of the civil jurisdiction over Indian reservation trust lands conferred upon state and local governments by P.L. 280, 28 U.S.C. § 1360. Specifically, the suit is a controversy between the Santa Rosa Band of Indians together with two individual members and Kings County, California, over the applicability of the County's Zoning Ordinance and Building Code on the Santa Rosa Rancheria, the Band's reservation. The Santa Rosa Band is an Indian Tribe, organized under § 476 of the Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-478 (1970); legal title to the Rancheria lands is held in trust by the United States for the use and benefit of the Band. See 25 U.S.C. § 465.

The background of the dispute is this:

Plaintiffs Barrios and Baga are members of the Santa Rosa Band. They are both poor. Each has been living with his family on an assignment (a plot of the trust land) within the Rancheria, but in totally inadequate housing. To remedy his family's housing problems, each applied in early 1973 to the Bureau of Indian Affairs (B.I.A.) for assistance in procuring mobile homes under the Bureau's Housing Improvement Program (H.I.P.). After examining the purchase documents for the mobile homes tentatively selected, the B.I.A. approved both purchases, and authorized the maximum H.I.P. grants available, $3,500, to apply towards the purchase prices. At the same time, the Indian Health Service (I.H.S.), an agency within the Department of Health, Education and Welfare, as part of a widespread project to upgrade various California Reservation water and sanitation systems, made plans to provide plaintiffs' H.I.P. housing with water and sanitary plumbing. ¹

However, after purchasing the mobile homes, plaintiffs learned that under § 402 of the County Zoning Ordinance (Kings County Ordinance No. 269) the Rancheria was zoned as a General Agricultural District, and, under § 402C(7), that use of a mobile home as a residence in such an area is permitted only with prior administrative approval, and then only for a maximum period of two years. Plaintiffs were informed by County officials that to obtain the discretionary administrative approval an application had to be submitted to the County Zoning Administrator, accompanied by a fee to defray the Planning Department's expense in preparing a required environmental impact report, and a site plan. Approval is granted if the Administrator decides that the proposed use is in conformity with the other provisions and objectives of the Zoning Ordinance. § 1803, Zoning Ordinance. Plaintiffs were advised that the County Building Code required inspections and permits for utility hookups and for the plumbing work which the I.H.S. planned to perform; these permits, too, entailed payment of fees. Plaintiffs lack money to pay the fees to seek the permits and have been unable to obtain mail service, utility hookups, or the I.H.S. water and sanitation services; they are presently deprived of the full use of the housing.

Being of the opinion that the County lacked jurisdiction to enforce its land use ordinances on the Rancheria, Barrios and Baga, and the Santa Rosa Band (several of whose members are presently awaiting H.I.P. mobile home grants) brought this action for declaratory and injunctive relief to restrain enforcement of the ordinances. The district court granted the requested relief. The County appealed; we affirm, except for some modification we require in the judgment entered below.

At the outset, we emphasize that this suit involves an attempt to regulate Indian use of Indian trust lands. We are clear, regardless of the modification worked in the exclusive Federal jurisdiction and tribal sovereignty doctrines of Worcester v. Georgia, 31 U.S. (6 Pet. 515) 350,8 L.Ed. 483 (1832), by subsequent Court decisions such as Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962) and Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), that in any event any concurrent jurisdiction the states might inherently have possessed to regulate Indian use of reservation lands has long ago been preempted by extensive Federal policy and legislation. Warren Trading Post v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 176, 176 n.15, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); Williams v. Lee, supra, 358 U.S. at 220-221, 79 S.Ct. 269. Congress, by the Indian Reorganization Act, authorized the government to purchase the lands involved here, and to hold the title in trust; it also authorized adoption of a tribal constitution for the exercise of tribal self-government over the area. 25 U.S.C. § 476. Against the historical backdrop of tribal sovereignty (subject only to the paramount power of the United States) over reservation lands, we have little doubt that Congress assumed and intended that states had no power to regulate the Indian use or governance of the reservation provided, except as Congress chose to grant that power. McClanahan, supra, 411 U.S. at 175, 93 S.Ct. 1257. ² Indeed, P.L. 280, by defining the limits of the jurisdiction granted "P.L. 280 states" such as California, necessarily pre-empts and reserves to the Federal government or the tribe jurisdiction not so granted. See McClanahan, supra, at 172 n.8, 93 S.Ct. 1257. Cf. Kennerly v. District Court, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971).

Thus the County is without jurisdiction to enforce its zoning ordinance or building code on the Rancheria unless such jurisdiction is explicitly granted by P.L. 280, 28 U.S.C. § 1360. We hold, for a number of alternative reasons, that P.L. 280 does not confer such jurisdiction.

The statute provides:

" § 1360. State civil jurisdiction in actions to which Indians are parties

"(a) (California) . . . shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise (within any Indian country within the state) . . . to the same extent that (California) . . . has jurisdiction over other civil causes of action, and those civil laws of such State or Territory that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory:

"(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States . . . ; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.

"(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section. . . . "

I. Grant of P.L. 280 jurisdiction to local governments

The first impediment to enforcement of the County ordinances is that they are not "civil laws of (the) State . . . that are of general application . . . within the State . . . ."

This is a matter of first impression for this court; district courts in this circuit have split on the issue. ³ Plaintiffs, contending that local ordinances are not state laws of "general application . . . elsewhere within the State," rely on Donelon v. New Orleans Terminal Co., 474 F.2d 1108 (5th Cir. 1973) (holding local ordinances not state laws within the meaning of the Railroad Safety Act of 1970, 45 U.S.C. § 434), and Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967) (holding local ordinances are not state statutes within the meaning of 28 U.S.C. § 2281, requiring convening of a three-judge district court to enjoin a state statute). See Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972). The County relies on California cases recognizing that the County is authorized to exercise home rule by the state constitution ⁴ and within its jurisdiction exercises the state's police power, and on cases such as Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721 (1914), which hold such local ordinances to be state law within the meaning of the Federal Constitution, and present 28 U.S.C. § 1257, for purposes of determining the appellate jurisdiction of the Supreme Court. See Restatement (Second) Conflict of Laws § 3, comment b (1969).

On the whole we find those cases unhelpful except insofar as they demonstrate the obvious that the phrase "state statute" (and even more so, "civil laws of (the) State or Territory that are of general application . . . elsewhere within the State . . . ") is ambiguous. See Note, The Extension of County Jurisdiction over Indian Reservations in California: Public Law 280 and the Ninth Circuit, 25 Hastings L.J....