Agua Caliente Revisited: Recent Developments as to Zoning of Indian Reservations

Abstract

In an earlier article on the subject of zoning Indian reservations,1 this author began with quotes from a recent issue of Time magazine that indicated two possibly overlapping problems: the legally unique status of Indian reservations, sometimes largely independent of ex ternal political control, and the need for land-use planning at the state, regional, and national levels. That those problems remain is illustrated by statements in a recent National Geographic. In one article, an American Indian speaks of problems of his people, and in particular about the Navajos of the Four Corners area: 'In recent years an extensive coal-mining operation has mutilated some of their most sacred land. A large power plant in that same region spews contamination into the sky that is visible for many miles.2 Else where in the same issue, another writer speaks of trends as to land use controls and predicts, believe that by the year 2000 the states will have a significant voice in land-use policy?and they should. The states will take back significant parts of the power they granted to municipalities half a century ago.3 In the earlier article, I suggested that the states were also moving into the area of imposing land-use controls on Indian reservations, although I urged participation of, and consultation with, Indian tribal governments in any such state activities. Since that was writ ten, my view has been challenged;4 additional writing has appeared on this subject; and several cases have been decided that relate either directly or indirectly to zoning on reservations. This article will con sider these recent developments. The basic legal and political status of Indian reservations has, of course, not changed in the past few years. It remains true that the reservations vary considerably in historical background, present form of government, and relation to other governments.5 Early United States legal authority treated the Indian tribes as independent sov ereign entities, relying on the federal government for external pro tection but retaining their right of self-government.6 The tribes thus had the unusual distinction of being sovereigns within a sovereign.7