Many reservations are characterized by “checkerboard” land patterns. “Trust lands” within or outside the exterior boundaries of a reservation are lands that are held in trust by the United States for a tribe or an individual Indian. Federal law protects the possessory interest and imposes statutory restraints on alienation.
The term “fee lands” means lands that are within the exterior boundaries of a reservation, but that private individuals or entities own in fee. Fee lands exist within reservations as a result of a policy, endorsed by the General Allotment Act of 1887, of allotting reservation lands to individual tribal members. These allotments were subject to an initial 25-year restriction on alienation, after which the allottee could receive a patent-in-fee to the land. Many allottees eventually sold much of the patented land to nonmembers. The resulting “checkerboard” pattern of fee and reservation trust land ownership has resulted in jurisdictional conflicts between state and tribal governments.
The Supreme Court has determined that tribes retain inherent powers of self-government over tribal members, activities on trust lands, and activities on non-Indian fee land that affects the health, safety, or welfare of the tribe. The Court has also recognized that tribes retain authority to regulate the conduct of nonmembers while on reservation trust lands, including the power to exclude nonmembers and to place conditions on their entrance and continued presence.
In New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983), New Mexico claimed concurrent jurisdiction to regulate hunting and fishing by non-Indians on the Mescalero Apache Reservation. The Supreme Court:
- reasoned that concurrent jurisdiction by both the state and tribe would interfere with the comprehensive tribal regulatory scheme and threaten Congress' commitment to the encouragement of tribal self-sufficiency and economic development.
- recognized "the Tribe's unquestioned authority to regulate the use of its resources by members and nonmembers . . . ."
Tribes, therefore, generally have the authority to regulate activities of non-Indians on trust lands. In determining whether a state has regulatory authority or whether its authority has been preempted, the Court balances the relative federal interests:
"State jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests . . . , unless the state interests at stake are sufficient to justify the assertion of federal authority."
This analysis generally does not apply to activities of non-Indians on fee land within a reservation.