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Appeals court reverses tribal jurisdiction ruling

A federal appellate court says the Shoshone-Bannock Tribes don’t have absolute jurisdiction over land owned by non-tribal members on the Fort Hall Reservation.

The 9th U.S. Circuit Court of Appeals on Dec. 5 reversed a decision by U.S. District Judge B. Lynn Winmill. Winmill said a non-tribal member who built a home on land he owned within reservation borders didn’t properly go through the tribal courts before suing over the tribes’ effort to force him to get building permits.

The case arose after David Evans inherited land in Pocatello within the Fort Hall Reservation. He obtained a building permit from Power County, but after he started construction on a home last year, the Shoshone-Bannock Tribes asked him to apply for a permit from them. A tribal land use compliance officer also asked Evans to pay the tribes’ permit fees and to ensure that all his contractors had business licenses and paid fees to the tribes.

Evans declined and continued building his home, prompting the tribes to post a “stop work” notice on the property and to send Evans a cease-and-desist order.

When Evans contacted the tribes, officials told him he’d be fined $500 per day if he ignored the stop-work order.

The tribes sued Evans in Shoshone-Bannock Tribal Court in July 2012, accusing him of violating tribal land use and business license rules. In response, Evans, Sage Builders and P&D Construction sued the tribes in Pocatello’s U.S. District Court, asking the judge to declare that the tribes’ didn’t have jurisdiction over the land and to bar future tribal court proceedings against Evans.

The tribes contended that Evans had to exhaust his options for remedies by first going through the tribal courts before he could sue in federal court. The tribes also argued that construction on the reservation done outside of tribal permits and regulations posed risks, including substandard building practices, degradation of nearby hunting grounds and fisheries, and other issues. The appellate judges rejected those arguments.

“The Tribes fail to show that Evans’ construction of a single-family house poses catastrophic risks,” Judge Milan D. Smith Jr. wrote for the panel. Some of the purported risks were speculative, the judge said, and in other cases, the tribes gave no evidence that construction of a home could exacerbate existing problems or otherwise cause harm.

And the tribes’ treaty doesn’t give them jurisdiction over land owned by non-tribal members, the appeals court said.

“Because the Tribes plainly lack the authority to regulate Evans’ construction of a single-family house on non-Indian fee land, the district court erred in concluding that exhaustion is required,” Smith wrote. “We therefore reverse the judgment of the district court and remand the case for further proceedings.”

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