Evans v. Shoshone-Bannock LUPC

When a tribal court lacks jurisdiction, a nonmember to an Indian Tribe does not have to exhaust tribal remedies prior to filing a suit in federal court, and it is not within the Tribes’ authority to regulate land owned in fee simple by a nonmember of the Tribe unless the land’s intended use is considered to put the area of the surrounding reservation in jeopardy.

Plaintiff David Evans, who is not a member of a Native American tribe, started to build a house on land that he inherited and owned in fee simple. The land was located in the home of the Shoshone-Bannock Tribes, the Fort Hall Reservation. The Tribes’ Land Use Policy Commission’s (“Commission”) Compliance Officer asked Evans to pay the Tribes’ fees, make sure the contractors had proper business licenses, and submit a building permit application. When Evans refused, the Tribes’ representatives went to Evans’ property and posted a Stop Work Notice. The Commission filed a complaint in Shoshone-Bannock Tribal Court, and Evans filed suit in United States District Court of Idaho. The district court concluded that Evans’ land use could be regulated because the Tribe had authority and that Evans did not exhaust tribal remedies; the Tribes’ motion to dismiss was granted. The Ninth Circuit noted that exhausting tribal remedies is not an absolute requirement to jurisdiction. In order for the tribe to regulate Evans’ land use, the Tribes must be able to show an exception in Montana v. United States or Brendale v. Confederated Tribes & Bands of Yakima Indian Nation applied. However, the Tribes were not able to show that the land is similar or that Evans’ intended use would put the surrounded area “in jeopardy.” The panel concluded that the tribal court jurisdiction lacked a plausible basis. The panel held that the district court erred by concluding that exhaustion of tribal remedies was required because the Tribe did not have authority to regulate non-Indian fee land where Evans’ construction of a single-family home was taking place. AFFIRMED in part, REVERSED in part, and REMANDED.