A University of Montana law professor, Michelle Bryan, has outlined three potential legal strategies to restore tribal control over land-use decisions on reservation territories. The U.S. Supreme Court has characterized local government’s ability to regulate land use as one of the “most essential” and “least limitable” powers. Despite this recognition, federally recognized tribes—who collectively hold more land than any entity except the federal government—lack meaningful ability to govern land-use matters within their own reservations.
According to Bryan, the current limitations stem from historical land ownership patterns, changing congressional policies, and conflicting Supreme Court decisions. The federal policy of allotment-which erased communal ownership of tribal lands in favor of individual private property interests-opened the door to non-tribal member land ownership. Among Supreme Court cases, Montana v. United States has had the most significant impact in undermining tribal land-use authority.
Historical Land Ownership Frameworks
Bryan argues that historical patterns of land ownership are essential to the current regulatory environment. The transition from communal tribal landholdings to private ownership began with the federal allotment policy, which divided “communally held tribal lands” into individually owned private property. The Dawes Act of 1877 implemented this approach under the premise of “civilizing” native communities by promoting agriculture and allotting tribal members their own plots of land. Any remaining unallocated parcels either remained as tribal trust lands or were transferred to non-Native settlers. After a 25-year period, these allotments could be purchased by non-tribal individuals, often without tribal consent.
While Congress officially ended allotment policies in the 1970s in favor of tribal self-determination, contemporaneous Supreme Court decisions created substantial obstacles for tribal governance. Some rulings, including White Mountain Apache Tribe v. Bracker, affirmed tribal sovereignty over reservation lands. In that case, the Court determined Arizona lacked authority to tax a non-tribal logging operation conducting business exclusively on tribal territory, establishing that states must overcome a “presumption of inherent tribal sovereignty” to interfere with tribal jurisdiction.
However, Bryan claims that the Court “flipped Bracker on its head” with its decision in Montana v. United States. That decision prevented the Crow Tribe from regulating hunting and fishing activities by non-tribal individuals on non-tribal-owned lands within reservation boundaries. The Court established the “implicit divestiture” doctrine, concluding that tribes were “implicitly divested of any inherent sovereign powers which were inconsistent with their status as domestic dependent nations.” This ruling shifted legal burdens-from states needing to justify interference with tribal authority to tribes proving that state actions “sufficiently interfere” with their governance.
Limitations of the Implicit Divestiture Doctrine
Bryan identifies two narrow exceptions where tribal regulations can override state authority under the implicit divestiture standard: when non-tribal individuals voluntarily engage in commercial transactions with tribes or when their actions threaten a tribe’s “political integrity, economic security, or health and welfare.” While the second exception holds particular relevance for land-use matters, the burden required by this raised standard is “extraordinary.”
Bryan cites Supreme Court decisions requiring that tribes show “noxious, menacing, or catastrophic” effects to supersede state regulations. Only once has this exception been applied in a land-use context, halting a private resort development on the Yakama Reservation that would have disrupted sacred Native ceremonies in an area predominantly owned by tribal members.
Given that land-use regulations serve core public health, safety, and welfare objectives, Bryan argues the Montana decision disproportionately harms tribes already facing severe economic hardship, environmental health disparities, and cultural heritage threats. The ruling forces tribes to implement land-use controls in fragmented ways, applying separate regulatory frameworks to tribal-owned and non-tribal-owned parcels within the same reservation boundaries.
For tribes seeking full land-use authority across all reservation lands, legal challenges under Montana’s second exception require demonstrating threats to their “political integrity, economic security, or health and welfare.” The uncertain outcomes of such litigation have emboldened some local governments to expand their regulatory reach, attempting to assert control over both tribal and private lands.
The fact that 40 percent of reservation lands are currently owned by non-tribal members compounds these challenges for tribes seeking uniform land-use policies. Bryan argues that to correct this imbalance of regulatory authority, the Supreme Court should reevaluate its decision in Montana. The clearest and strongest option would be for the Court to recognize that a sovereign right-such as regulating land use-can only be revoked by an act of Congress.