Tribal Legal Code Project: Tribal Zoning Codes

Introduction

Tribal zoning codes are laws that divide the tribe’s territory into separate districts, prescribing the types of land use allowed in each district. Indian nations can employ zoning to control and direct the development of property within their borders in order to prevent environmentally harmful uses and preserve natural resources, to avoid congestion, to preserve the community’s cultural identity, and to advance a broad range of values related to community safety and well-being. For example, zoning laws may be used to prohibit the location of factories or waste sites adjacent to housing, or they may be used to require a minimum lot size for any housing development. Zoning codes normally implement a tribe’s preestablished land use plan. Thus, for zoning to be effective, an Indian nation should normally have adopted a comprehensive plan that indicates where growth and development are projected and where less intensive uses are favored.

When all of an Indian nation’s territory is tribal land, other laws besides zoning may function to prevent undesirable uses. For example, in allocating leases or use permits to tribal members, the Indian nation may specify that land may be used only for a homesite, grazing, or some other designated use. Even in such a situation, however, zoning may prove valuable as a more comprehensive and enforceable mechanism for land use control, particularly in townsites or more densely settled areas. For Indian nations that have trust allotments, fee lands held by tribal members, or non-member-owned fee lands, zoning may prove the only means of regulating and directing the overall impact of reservation development, and hence is essential for that purpose.

In developing a zoning code, an Indian nation will want to pay attention to the following issues:

• Jurisdiction, or power to apply the code to parcels characterized by different forms of ownership, and the possibility of intergovernmental agreements to alleviate jurisdictional issues;
• Designation of types of zones, including special zones corresponding to tribal cultural needs, such as sacred areas or traditional hunting territories;
• Different institutional arrangements for applying and enforcing zoning requirements, such as special agencies or tribal committees, and the role of judicial review in tribal courts.
• Requirements of tribal law or of the Indian Civil Rights Act that may impose limits on the exercise of zoning power when individual rights are adversely affected.

Jurisdiction

As governments, Indian nations have inherent power to promote the health, safety, and welfare of their communities. This power normally encompasses the authority to regulate or zone land use within the nation’s borders. With respect to tribally owned lands (trust or non-trust), trust allotments, and fee land owned by tribal members, this description of the Tribe’s authority stands unchallenged. In the case of reservation lands that are owned in fee by non-members, however, the Tribe’s zoning power is less clearly established. In the case of Brendale v. Confederated Tribes and Bands of Yakima Indians, 492 U.S. 408 (1989), a divided United States Supreme Court held that in areas that the Tribe has opened to non-members, the state has exclusive zoning power over non-member-owned fee land. If the Tribe objects to the state’s exercise of this zoning authority, claiming that a permitted land use will threaten the tribal community, the Tribe’s sole remedies are to complain within the state zoning process or to bring a nuisance action in state court. In areas that the Tribe has closed to non-member entry, the Tribe’s exclusive zoning power remains.

Brendale has made comprehensive zoning extremely difficult on reservations that have significant amounts of non-member-owned fee land in areas open for general entry. Effective zoning is designed to create contiguous areas of harmonious uses. If areas of land subject to tribal jurisdiction are interspersed or checkerboarded with areas of land subject to state jurisdiction, there is a serious risk of concurrent application of conflicting regulations. As a result, it may be impossible to create a coherent set of land uses through zoning. Also, tribal legal challenges to state zoning decisions may delay and hinder the regulatory process.

There are several ways Tribes may overcome this planning standoff. One is for tribes to enter into agreements or memoranda of understanding with relevant state, county, or municipal zoning authorities to establish a system of coordinated land use planning and regulatory activities for the reservation. The Swinomish Tribe in Washington State has made such an agreement with Skagit County, in which the governments resolve to set jurisdictional conflicts aside and create a joint comprehensive land use plan together with implementing ordinances and administrative procedures.

A second solution to the planning dilemma created by Brendale is for Tribes to invoke their environmental regulatory powers rather than their zoning powers to control land use. Whereas zoning identifies permitted uses on the land, environmental regulations specify the permissible environmental consequences of land use. But both may have the same effect. For example, if the location of a solid waste disposal site on a particular tract of land will pollute the local groundwater, then an environmental law that prohibits water pollution at that site will effectively preclude the location of the disposal site on that tract. Unlike the Tribe’s zoning power under Brendale, tribal environmental authority normally extends to non-member-owned fee land. That is because federal environmental statutes, as implemented by the federal Environmental Protection Agency, designate Tribes as the proper regulatory authority over all reservation lands, regardless of ownership.

A third solution may be to work with on-reservation non-Indian communities to reduce the likelihood of a challenge to tribal zoning. For example, the Colville Tribe has provided for the appointment of two non-Indian residents of that Reservation to the seven-member Land Use Review Board that administers the Tribe’s zoning ordinance. The Colville assert zoning jurisdiction over all lands within their Reservation, regardless of trust status or non-Indian ownership.

Designation of Types of Zones, Including Special Zones to Protect Tribal Culture

Tribes engaged in land use planning and zoning must determine the balance they wish to strike between preserving the natural or rural quality of their reservations and facilitating economic development. The range and type of zones that the Indian nation identifies will dictate the types of uses that can take place in different parts of the reservation. Common types of zones are residential (single or multiple family), rural residential (with no public utilities service), industrial, commercial, mobile home, government or institutional, forestry, agricultural, planned unit development (for more diverse uses), conservancy or wilderness, floodplain, and quarry.

As Indian nations make choices among the different types of zones, they should be aware that zoning can be used to insure protection of important cultural uses (such as hunting, fishing, and gathering) and sacred sites. Zoning can designate districts for forestry, conservancy or no development at all, with special uses allowed for culturally related activities. In the Muckleshoot Zoning Ordinance, for example, one of the "Findings" is that "Preservation of the rural character of the Reservation and limitation of development to uses compatible with the natural physical and aesthetic nature of Reservation land is essential for the continued maintenance of Muckleshoot culture and identity." The recently enacted Menominee Tribal Zoning Ordinance establishes conservancy districts, in order to protect environmental values and "culturally sensitive areas," and designates some areas as "prohibited development overlay districts" in order to protect environmental and cultural resources. The forestry district created in the Colville Land Use Ordinance limits non-forestry uses to "uses by tribal members for culturally related activities such as hunting, fishing, and food gathering."

Within each zone, the zoning ordinance will normally identify permitted uses and structures, density and lot size requirements, and uses allowed with a conditional use permit. Conditional use permits typically authorize uses that may be deemed compatible with permitted uses, depending on the outcome of a careful, public, case-specific evaluation of influences upon neighboring uses, public facilities, and the environment. By enlarging the availability of conditional use permits, an Indian nation can introduce flexibility and public participation into the zoning process. Tribes should also be aware, however, that the approval process for conditional use permits could stimulate opposition by nearby occupants to uses that may have widespread public value.

Institutional Arrangements for Applying and Enforcing Zoning Laws

Zoning decisions can be politically sensitive and volatile within the tribal community, as they deeply affect the quality of reservation life and the ability of individuals to fulfill their desires regarding particular land uses. Thus, in designing a zoning ordinance, an Indian nation will need to consider which institutions should be involved in its administration and enforcement. Should they be politically accountable, and if so, to whom? Should they be insulated from the most vigorous political influences applied in individual cases? Should they possess planning expertise? Should they operate publicly or behind closed doors?

The institutions most often employed in tribal zoning administration and enforcement are:

• a planning department of the tribal government;
• a committee of the tribal legislature or council;
• a politically appointed zoning review board;
• the tribal legislature or council itself;
• tribal court.

The planning department consists of specialists in land use planning and the environment. It is normally responsible for public education and advice regarding the zoning laws, maintenance of records, factual investigations related to permits and violations, and sometimes, decisions in the first instance regarding permits. A committee of the tribal council or a politically appointed zoning review board is typically available to insure review of planning department decisions in the name of consistency and fidelity to the broad public interest. Sometimes, these agencies assume responsibility for initial permitting decisions as well, providing public arenas where all interested individuals and groups can air their concerns. Because of the inherently political nature of zoning decisions, the tribal legislature or council is often available as an appeals process of last resort. Finally, a tribal court may be used to review political decisions for arbitrariness and to entertain enforcement or penalty actions when uses are commenced or continued in violation of the zoning laws.

Some Indian nations prefer to decentralize their zoning process, just as states typically delegate zoning authority to counties and municipalities. Thus, for example, the Navajo Nation Local Governance Act specifies that political subdivisions known as Chapters may establish community based land use plans, adopt their own zoning ordinances, and enforce those ordinances.

Limits on Tribal Zoning Powers

Zoning may run afoul of tribal constitutional requirements or the Indian Civil Rights Act of 1968 if it is undertaken arbitrarily; if it is carried out without adequate opportunities for affected landowners, lessees or permit holders to be heard; or if it accomplishes a "taking" of private property for a public use without just compensation. A zoning ordinance "takes" property only if the ordinance prevents the property owner, lessee, or permit holder from making an economically feasible use of that land.

Zoning ordinances can be designed to avoid these potential pitfalls. For example, provisions for review of permit denials (in the tribal council or the tribal court) can help prevent arbitrary decision-making. Likewise, the procedures for zoning board or tribal council hearings can be crafted to insure adequate opportunities to be heard. Finally, ordinances can include provisions for granting "variances," or departures from established zoning designations, under circumstances where the only permitted uses preclude any economically feasible use. For instance, the Colville Land Use Ordinance allows for the granting of a variance where "the strict enforcement of this [ordinance] would result in practical difficulties or unnecessary hardships for the applicant and that, by granting the variance, the spirit of [this ordinance] will be observed, public safety and welfare secured, and substantial justice done."

When a regime of zoning is instituted, permitted uses may sometimes conflict with or impair traditional uses. An Indian nation may choose to allow for public compensation for loss of such uses, as the Navajo Nation has done.

Zoning Bibliography

Goeppele, Craighton, "Note: Solutions for Uneasy neighbors: Regulating the Reservation Environment after Brendale v. Confederated Tribes & Bands of Yakima Indian Nation," 65 Washington Law Review 417 (1990).

Royster, Judith V., "Environmental Protection and Native American Rights: Controlling Land Use Through Environmental Regulation," Kansas Journal of Law and Public Policy, Summer, 1991, p. 89.

Solomon, Shirley, "Tribal/County Cooperation: Making It Work at the Local Level," Cultural Survival Quarterly, Fall, 1995, p. 56.

Zaferatos, Nicholas Christos, "Planning the Native American Tribal Community: Understanding the Basis of Power Controlling the Reservation Territory," 64 Journal of the American Planning Association 395 (1998).

Navajo Nation Zoning Law

The Navajo Nation has recently abandoned its system of central responsibility for enacting and enforcing zoning ordinances. The new system, adopted in 1998, devolves zoning authority onto traditional political subdivisions, known as Chapters. The Nation sets minimum procedural, community participation, and substantive requirements for Chapters to establish comprehensive land use plans, and then defers to the Chapters with respect to adoption and enforcement of zoning requirements.

Both the expanse and the traditional governing system of the Navajo Nation justify the more decentralized system of zoning. The Navajo Nation has the largest land base of any Tribe in the United States, with 16,224,896 acres (26,897 square miles), including the main reservation, trust lands of the Eastern Navajo, and satellite reservations of Alamo, Canoncito, and Ramah. Nearly all of the reservation is tribally owned, with the remainder allotted. Some of the tribal and allotted lands are leased, for such purposes as mining, industrial parks, and commercial centers. The reservation population is approximately 160,000, most of whom are tribal members.

The Navajo Nation territory encompasses parts of three different states (Arizona, New Mexico, and Utah) and eleven different counties. The Hopi Reservation is also wholly encircled by the Navajo Reservation. The Navajo Nation territory is relatively remote from urban settlement, containing desert areas of spiritual significance and spectacular natural beauty. Because of this remoteness and the absence of non-Indian-owned land, the Navajos have been spared struggles with state and local governments over zoning on the reservation.

The Navajo Nation enacted its current zoning laws in April 1998, as part of the Nation's Local Governance Act. This Act was designed to decentralize much of Navajo governance, delegating considerable authority to the approximately 110 separate Chapters. In the traditional Navajo system of governance, the Chapters, not a centralized national government, exercised most governing authority. Hence, the Local Governance Act was intended to return the Nation to a more traditional form of organization.

According to the Local Governance Act, "Chapters may adopt ...[z]oning ordinances consistent with the Chapter's community based land use plan." (Section 102(E)(4)) Thus, before a Chapter may enact a zoning ordinance, it must first adopt a comprehensive community based land use plan. Under the Local Governance Act, the plan must be preceded by a process of educating the community about the "concepts, needs, and process for planning and implementing a land use plan." (Section 2004(B)(1)) Other procedural provisions in the Local Governance Act operate to insure that the Chapter's comprehensive plan reflects expert assessment of community resources and the Chapter members' goals, priorities, and vision for the future of the community. At a minimum, the comprehensive land use plan must include an open space plan, a plan showing areas to be used for residential, commercial, industrial, and public purposes, a thoroughfare plan, and a community facilities plan. Before it becomes effective, the Transportation and Community Development Committee of the Navajo Nation Council must approve the Chapter’s plan.

The Local Governance Act does not dictate the substantive terms of any Chapter's zoning ordinances. It merely provides that if any permit that is granted destroys or diminishes the value of any land for its customary use by any tribal member, the Chapter must compensate the former Navajo user. Responsibility for enforcing the zoning ordinance rests with the Chapter.

To date, no Navajo Chapter has adopted a zoning ordinance. At least one Chapter, Kayenta, has its enactment process underway.

Colville Land Use Ordinance

Enacted in 1996, the Colville Land Use Ordinance regulates a large land base of 1,400,000 acres in northeastern Washington, about 100 miles northwest of Spokane. Notwithstanding the General Allotment Act, the vast majority of the Colville Reservation is collectively owned, with a relatively small amount having been allotted to individual tribal members. The landscape is quite diverse, encompassing forestlands (nearly half the Reservation territory), range lands, farmlands, lakes, and streams. The Columbia and Okanogan Rivers border the reservation's east, south, and west sides; and Grand Coulee Dam, located on the reservation, creates a large artificial lake used for recreation. Tribal lumber mills, meatpacking plant, casino, and construction company, along with several retail/commercial centers, constitute the primary non-residential development. Thirteen different tribes have been brought together to form the Confederated Tribes of the Colville Reservation, and the total reservation population is approximately 7,000, most of whom are tribal members.

In a concise statement of purpose, the Colville Land Use Ordinance provides that the Tribes seek "to preserve and protect the political integrity, the economic survival, and the health and welfare of the present and future members of the Confederated Tribes of the Colville Reservation, to exercise the Tribes' powers of self-government and self determination over all lands of the Colville Indian Reservation; and, to implement the Tribes' Comprehensive Land Use Policy Guidelines." (Section 4-3-3(b)) Interestingly, there is no specific mention of natural resource conservation or cultural protection.

The Colville Land Use Ordinance asserts jurisdiction over "all lands of the Colville Indian Reservation notwithstanding the issuance of any patent," as well as over "all persons residing or found within the exterior boundaries of the Reservation, or having title or use or possessory interests to lands of the Reservation." (Section 4-3-3(c)) As the statement of purpose above suggests, affirming the Tribes' powers of self-determination and insuring the Tribes' political integrity was a primary objective of the Land Use Ordinance. Although two Washington counties overlap the Colville Reservation and there is some non-Indian-owned land, the Tribes have determined that the Supreme Court's Brendale decision does not preclude their broad jurisdictional claims. In 1998, for example, the Tribe initiated a proceeding in tribal court to halt a non-Indian landowner from proceeding with a subdivision that had received county approval.

The specification of districts and uses in the Colville Land Use Ordinance is at a mid-level of detail and rigidity. A system of special use permits, conditional use permits, and variances introduces flexibility under circumstances where the purposes of the zoning laws would not be thwarted or where special hardship exists. As in the Menominee Tribal Zoning ordinance, conditional uses are specified separately for each zone, as are dimensional requirements. But whereas the Menominee ordinance also lists the accessory uses permitted for each zone, the Colville ordinance merely indicates that "customary" accessory uses are allowed for each permitted use. Special uses (including mining and land fills) are not associated with any particular zone, and may be approved on a case-by-case basis for any district where they ar

The enumerated zones and permitted uses under the Colville Land Use Ordinance are as follows:

• Residential, where single family dwellings and mobile homes, multiple family dwellings, public parks, and playgrounds are the only permitted uses;
• Commercial, where retail, professional, service, religious, and recreational uses are permitted;
• Rural, where agricultural, grazing, home occupations, kennels, single family dwellings, public parks, playgrounds, planned residential developments, and truck gardening and stands are the only permitted uses;
• Forestry, where forestry, grazing, fish and game management, agriculture, greenhouses and nurseries, and single family dwellings associated with forest production are permitted;
• Game Reserve, where only grazing, harvesting of wild crops, selective timber production, recreation, hunting, fishing, and trapping by tribal members, and wildlife preserves are the only permitted uses;
• Industrial, where a variety of specified manufacturing, service, forestry, agriculture, and service facilities are permitted;
• Wilderness, where recreational and educational uses are the only ones permitted, and special, strict prohibitions on development, mining, forestry, and grazing apply;
• Special District, where all existing uses are frozen, and conditional use permits are required for any and all uses, because the areas have experienced the greatest development, have the greatest amount of inconsistent adjacent uses, and "are expected to have the largest amount of future growth."

Even though the Colville Land Use Ordinance does not emphasize natural resource and cultural protection in its statement of purposes, the particular districts identified in the ordinance, especially the Wilderness and Game Reserve Zones, provide considerable flexibility to achieve those objectives.

The Colville Land Use Ordinance relies on a Planning Department, its administrative head, the Planning Director, and a Land Use Review Board for most administration and enforcement. The Planning Director has authority to approve conditional use permits or to determine that a proposed use will have adverse impact on environmental or cultural resources and should be referred to the Land Use Review Board. This Board, appointed for three-year terms by the Colville Business Council, consists of seven reservation residents, two of whom must be non-Indians. Members may be excused from voting by a majority of the remaining members if they have a conflict of interest, as specified in the Ordinance. (Section 4-3-80(d)(3)) The responsibilities of the Land Use Review Board include resolving appeals from decisions of the Planning administrator, and deciding whether to grant applications for special-use permits, variances, and conditional uses. Public hearings are required before the Land Use Review Board renders its decisions, and permits may be denied on the basis that the proposed development will likely have adverse effects on environmental or cultural resources.

The Colville Business Council has power to revise the Zoning Map, resolve rezone applications, and approve or disapprove special-use permits. All special-use permit decisions by the Land Use Review Board must be submitted to the Business Council for final determination. Final decisions of the Land Use Review Board and of the Business Council are subject to review by the Colville Tribal Court.

No development, sale, or other transfer of property on the Colville Reservation may take place unless a proper zoning permit has been issued. Initial responsibility for investigating violations rests with the Planning Department staff. The Ordinance specifies civil penalties for violations of its requirements, as well as equitable actions.

Muckleshoot Zoning Ordinance

Enacted in 1981, the Muckleshoot Zoning Ordinance was designed for a relatively small reservation located near a large, fast-growing city, Seattle, Washington. The total area of the reservation is 3,840 acres, of which 689 acres are tribally owned and another 1,096 acres are trust allotments. About one-third of the total number of 3,200 reservation residents are tribal members

Several different jurisdictions contend for authority within the Muckleshoot land base. Portions of two counties, a main highway, and the northern section of the city of Auburn all intersect with the reservation. The Zoning Ordinance, enacted before the United States Supreme Court's decision in the Brendale case, asserts jurisdiction over "all property located within the exterior boundaries of the Muckleshoot Reservation notwithstanding the issuance of any allotment or patent and notwithstanding the trust status of the land involved, and ... all tst or restricted fee property within Muckleshoot Indian Country." (Section 7.01.060) In 1997 the Tribe and King County clashed over an amphitheater project that the Tribe was developing on non-trust reservation land that it had acquired. Despite efforts of nearby non-Indian farmers to halt the project, the County did not issue an emergency measure that would have had that effect.

The reservation is composed of two distinct areas. The western portion is urban and melds with the city of Auburn. The eastern part of the reservation is primarily agricultural and open space area, and also includes gravel quarries. When the Muckleshoot first enacted their zoning ordinance, their primary objectives were to preserve the river valley and its steep slopes by zoning that area for conservation, and to ensure orderly development in areas zoned for such activity. At that time, the majority of employed tribal members pursued livelihoods in the fields of forestry, agriculture, and fisheries, occupations that are integral to Muckleshoot culture and identity. Since the opening of a tribal casino in 1995, economic development has become more important for the Muckleshoot. As a consequence, the zoning ordinance is under review to determine whether it goes too far in protecting rural areas of the reservation from economic activity.

The overall design of the Muckleshoot Zoning Ordinance is an elaborate statement of purpose and findings, combined with a restrictive set of permitted uses and flexible provision for special use permits. The avowed purpose of the Ordinance is "to maintain the Reservation as a social, cultural, political, and economic unit for the continued benefit and prosperity of the members of the Muckleshoot Indian Tribe." The Ordinance places a strong emphasis on preserving the natural environment and promoting tribal culture, as reflected in language emphasizing use of the land in a sensitive way; protection of traditional tribal lifestyles and culture by preserving natural resources; prevention of pollution that degrades the environment; preservation of agricultural areas and the rural character of the reservation; and preservation of existing views, vistas, archaeological sites, trails, and fruit picking areas of the Muckleshoot people. While development is allowed to advance the housing and other community welfare needs of reservation residents, that development must be properly planned in relation to adjacent uses, public utilities, and soil and flood conditions.

The Muckleshoot Zoning Ordinance creates the following zones for the reservation:

• Rural Residential and Agricultural, with permitted uses being agricultural, forestry, single family rural residential, cemeteries, churches, day care centers, home industry, and tribal community facilities;
• Neighborhood Commercial, with permitted uses including retail sales and services, restaurants, auto service stations, banks, and business and professional offices;
• Quarry, for continued use and development of exist
• Conservancy, to protect areas of wildlife habitat, natural scenic areas, sensitive areas of the environment, and floodplain and slope areas, where the only permitted uses are nonintensive.

To allow flexibility and creativity in land use decision-making, the Muckleshoot Zoning Ordinance provides for special use permits, which enable uses not otherwise permitted in a zone, so long as those uses adhere to the purpose of the zone and the overall objectives of the Ordinance. In determining whether and on what terms to recommend approval of such permits, the Tribal Planning Commission is directed to consider whether the proposed use is physically harmonious with the area in which it is proposed, the nature of any environmental impact, and the extent to which the proposed use meets the housing, employment, and other needs of reservation residents. The Planning Commission must hold a public hearings before preparing a recommendation regarding any special use permit. Ultimately, such recommendations are submitted to the Tribal Council, which has final decision-making authority, subject to review by the Muckleshoot Tribal Court. The Tribal Court's reviewing power is confined to determining whether the Tribal Council's decision was "clearly erroneous" or without factual basis.

The Muckleshoot Planning Department is responsible for administering and enforcing the Tribe's zoning ordinance. Under the Ordinance, any structure that is built or altered in violation of zoning requirements is declared a public nuisance. The Tribe or any individual may bring an action in Tribal Court to halt the use of any property in violation of the Ordinance, to obtain damages, and to achieve restoration of the property. In addition, civil penalties, seizure, or forfeiture may be imposed on any person who knowingly violates the Ordinance. It is important that the fines are deemed civil, because the United States Supreme Court has declared that Indian nations may not exercise criminal jurisdiction over non-Indians.

Menominee Tribal Zoning Ordinance

The Menominee Tribe, located in northeast Wisconsin, enacted its comprehensive, detailed zoning ordinance in 1997. The ordinance specifies and limits uses in fifteen different zones and four overlay zones, with separate provision for conditional uses associated with each zone. Although the law is very long (131 pages), it includes seventeen helpful appendices which provide guides for obtaining various permits, variances, amendments, and appeals, as well as a "Quick Reference Chart of Permitted Land Uses." The guides are in question-and-answer format, making them accessible to the general public.

The Menominee designed their zoning ordinance for a relatively large reservation that is some distance from major urban centers. The reservation spans approximately 235,000 acres, nearly all of which is held in trust for the Tribe. More than 90% of this reservation territory is heavily forested, and the reservation also features abundant lakes, rivers, and streams. In addition, there are four communities and a tribal casino. The total reservation population is approximately 3,500.

The concisely stated purposes of the Menominee Tribal Zoning Ordinance are to protect environmental and natural resources, to prevent congestion, to insure compatible adjacent uses of land, to facilitate adequate provision of services, and to prevent harm to persons and property as a result of natural and human-made hazards. The Tribe asserts jurisdiction over all land and water within the reservation and all other lands held in federal trust for the Tribe. Because most of the reservation land is tribal trust land, there is little evidence of friction between the Tribe and its local county government related to zoning power. Zoning authority is most important for tribal lands that are leased to

After an extensive set of definitions and a reservation-wide ban on facilities for sale of alcohol and adult bookstores, the Menominee Tribal Zoning Ordinance establishes fifteen different zones and four overlay zones. The overlay zones cut across districts, establishing more restrictive requirements in order to protect environmentally sensitive areas. For each zone, the ordinance identifies permitted principal uses, permitted principal structures, permitted accessory uses, permitted accessory structures, conditional uses (allowed with special permits), and dimension requirements. The zones are as follows:

• Single-Family Residential, with single-family housing and parks and playgrounds the only permitted principal uses;
• Single-Family Mobile Home, with single mobile homes and parks and playgrounds the only permitted principal uses;
• Low Density Multiple-Family Residential, with low density residential, single-family housing, and parks and playgrounds the only permitted principal uses;
• High Density Multiple-Family Residential, with multi-family housing and child care the only permitted principal uses;
• Single Family Rural Residential (where public sewer and water systems may not exist), with single-family housing and parks and playgrounds the only permitted principal uses;
• Tribal Institutional, where government services, health care, religious facilities, cemeteries, child care, and recreational and social programs are the permitted principal uses;
• Neighborhood Business, where various specified retail sales, professional, service, and commercial uses are permitted;
• General Business, where a broader range of retail sales, professional, service, and commercial uses is permitted;
• Utility-Industrial, where mill yard overflow, fire control, game management, and public utilities are the permitted principal uses;
• Exclusive Industrial, where a wide range of specified industrial and manufacturing uses is permitted;
• Exclusive Forestry, where forestry, fire control, recreational uses, and wildlife habitat are the only permitted principal uses;
• Exclusive Agriculture, where agriculture and single family housing are the only permitted principal uses;
• Conservancy, where uses are limited to recreation and wildlife habitat;
• Planned Unit Development, for multiple-use projects conceived and implemented as comprehensive and cohesive developments and designed to conserve open space
• Highway Access and Setbacks;
• Prohibited Development Overlay, where no structures are allowed and the only permitted uses are recreational, in order to preserve natural and cultural resources;
• Shoreland Overlay, where construction is sharply limited;
• Floodplain Overlay, where development is constrained in order to minimize damage from flooding, and special construction requirements apply;
• Wellhead Protection Overlay, designed to limit uses that would endanger the municipal water supply and well fields.

The Menominee Tribal Zoning Ordinance maintains flexibility, control, and public involvement through a system of conditional use permits, waivers, and variances. Conditional uses are specified separately for each zone. In addition, conditional use permits must be obtained for all large subdivisions, high-density multi-unit dwelling, mobile home parks, and campgrounds. In a particularly helpful passage, the Menominee Tribal Zoning Ordinance asserts that "The conditional use permitting process should inform public decision makers and private individuals on the environmental and economic effects of actions that have been proposed, increase the exchange of information among interested parties, lead to environmentally and economically sound projects, and be used as a planning tool for aspects of decision making."

To obtain a conditional use permit, applicants must ordinarily provide an impact evaluation report, which includes social, economic, and environmental consequences of the project, as well as possible alternatives. Applications are considered initially by the Tribe's Community Development Department, which conducts a review and generates comments. The Department then refers the application to a Committee of the Tribal Legislature, which holds a public hearing and then renders a decision. If the applicant wishes to appeal the Committee's decision, it must first present the appeal to the Committee, which then formulates a recommendation to the Tribal Legislature. Final disposition of the appeal is in the form of a resolution by the Tribal Legislature. (Section 34) There is no special provision for judicial review.

Unlike conditional uses, which are different for each zone, allowable waivers and modifications are identified across all stricts. Waivers or modifications are allowed, without the need for a conditional use permit or variance, for a variety of specified purposes, including yard regulations, fences, recreational vehicles, and family day care homes.

Variances can be obtained under special conditions, where the literal enforcement of the zoning ordinance would cause unnecessary hardship, defined as "an unusual or extreme decrease in the adaptability of the property to the uses permitted by the zoning district, caused by facts such as rough terrain or soil conditions uniquely applicable to that particular piece of property...." (Sec. 34.020(C)(1)) Applications for variances are presented to the Community Development Department, considered by the Committee of the Tribal Legislature after notifying adjacent residents or leaseholders, and then finally resolved by a vote of the Tribal Legislature.

Enforcement of the Menominee Tribal Zoning Ordinance begins with investigations by the Community Development Department and notice to responsible parties that violations should be halted or remedied. If an alleged violation is not remedied within the specified time period, the Tribe's Prosecuting Attorney's Office may initiate proceedings for forfeiture and/or injunction. If a forfeiture is not paid, the violator is confined for a period up to six months, or until the amount is paid. And if such proceedings are ineffective to halt violations, the Community Development Department may proceed with lease cancellation. Forfeiture amounts are specified for a variety of different violations. There is no clear indication that the monetary forfeitures represent civil rather than criminal penalties, raising the possibility that non-Indians may challenge the Tribe's jurisdiction under the Supreme Court's Oliphant decision.