Shoshone-Bannock Tribal government leaders responded to a recent court of appeal decision that overturned an earlier decision made by federal Judge Lynn Winmill to dismiss an injunction filed against the Shoshone-Bannock Land Use Policy Commission and the Fort Hall Business Council for attempting to enforce tribal building permit requirements on Arbon Valley resident, David Evans.
The Ninth Circuit Court of Appeals reversed the decision last Thursday.
“Reversing in the district court’s denial of a motion for preliminary injunction and dismissal of an action seeking to enjoin tribal court proceedings, the panel held that the Shoshone-Bannock Tribes lacked the power to regulate the land use of the plaintiff, a non-member who owned land Fort Hall Reservation,” the Circuit Court wrote.
Members of the Fort Hall Business Council expressed their disappointment in the ruling in a news release they sent to members of the media on Dec. 9.
Chairman Nathan Small wrote: “We anticipate seeking En banc session (a session where the case is heard before all the judges of a court) by the rest of the Ninth Circuit judges. The Tribes are confident that when the entire panel of Ninth Circuit judges review the case, they will agree with Judge Winmill.”
Small continued on saying, Judge Winmill is familiar with the area and the facts and had a well-reasoned opinion that respected exhaustion of tribal court remedies. The conclusions from three judges, miles away from Idaho, and one of which was a Nevada district judge, are out of touch with the facts, he said.
According to the Shoshone-Bannock Tribes news release, the Evans case did not decide who has jurisdiction on the Reservation, it just determined that Evans does not have to go to tribal courts first.
Evans has built a home on non-tribal owned, deeded land within the boundaries of the Fort Hall Indian Reservation. During its construction, tribal authorities tried several times to get Evans to secure tribal building permits and he refused, claiming the tribes had no jurisdiction. Evans did secure building permits from Power County.
When Evans began construction of his home on Government Road, tribal authorities filed suit against him in tribal court. The also sued Evans’ contractor, P&D Construction, and his plumber, David Bott, for failure to obtain a tribal business permit.
When tribal officials, through their attorney Mark Echo Hawk, filed a complaint against Evans and his contractors in tribal court for pursuing his home building project, Evans, through his Pocatello attorney, Aaron Thompson, sought relief in federal court with an injunction.
Judge Winmill denied that relief and ruled that earlier federal court decisions had established: “The requirement of exhaustion of tribal remedies is not discretionary; it is mandatory.”
The Tribes indicated they look forward to presenting a full case to Judge Winmill to advance consistent zoning and protect the environment on the Fort Hall Reservation.
In the news release reads: “In the meantime, the Shoshone-Bannock Tribes are pleased that many non-Indian landowners on the Fort Hall Reservation continue to respect the Tribes existence and voluntarily choose to comply with simple Tribal laws. The Tribes will continue to defend their permanent homeland and sovereignty.”
The case has been remanded to Judge Winmill to address the merits of the case.