Tribal Legal Code Project: Land Use and Planning

Introduction

The topic "tribal land use and planning codes" is a broad subject. Such codes can vary from very broad and comprehensive laws to provide for statutory reform and planning to very specific codes to deal with land permits. Generally, tribal land use codes cover these areas:

• The allocation of tribal lands (held in trust by the United States) to individual members under a constitution and bylaws or by means of land leases or use permits.
• Utilizing the Indian Land Consolidation Act to buy, sell, trade, or exchange lands to end small allotment interests and checkerboarded land ownership patterns and add lands to a reservation or Indian land area.
• Comprehensive law reform and planning statutes.
• Specific land use statutes.

Allocation of Tribal Lands

Some Indian nation constitutions and bylaws provide that tribal members may receive a certain number of acres of land for their use and that of their family. Some provisions indicate the nature of the land use, e.g. homesites or grazing. There are a few instances of Indian treaties which provide for the allocation of lands to tribal members for various purposes, and the given tribe’s treaty should be consulted to see if that is the case.

Specific lands may be set aside so that a given tribal member has the exclusive use of a specific area of land. This usually requires a survey of the reservation or available lands held in trust for the tribe to specifically identify what land a member will receive.

There are other kinds of land use which are not tied to exclusive possession and use by one person or family. Examples of such land uses include grazing permits to share open range areas, hunting or fishing permits, timber harvest permits, and other permissions to use natural resources.

• The major issues in code development for the allocation of tribal lands include:
• Who is eligible to receive a piece of land or a land use permit?
• What body will survey and allocate the land and what are the eligibility conditions?
• Is the lease or use permit permanent or is only for a fixed number of years?
• What uses will be made of the land, i.e. is it for one’s home, agriculture, business, grazing, or some other specific use? Are the land use conditions and restrictions set by law or set by a standard form lease or permit?
• Can the lease or permit be inherited and if so, what are the rules of inheritance?
• What are the procedures when there are disputes? Will they be handled by the courts, a special board or commission, by the tribal council, or using traditional methods of dispute resolution?
• If a board manages land use, who are its members, what are their terms, and what are their procedures and powers?
• What are the court appeal rights when a statutory body handles a dispute?

The tribe may elect to develop a comprehensive code which addresses these and other issues, or it may use standard form lease or permit documents which set out the conditions for receipt and use of land or a land use right. The advantage of comprehensive legislation is that it deflects accusations of favoritism or unequal application. However, statutory changes may be difficult to make. The advantage of standard form leases and permits is that it allows the tribe to periodically reconsider land use rights and conditions for changes to be made in the form documents.

One of the problems with land allocations is that there is actually a shortage of land for given uses. That creates problems when most or all of the tribal land base has been allocated; particularly when land use rights can be inherited. That creates the problem where many individuals will hold interests to the land but there are so many people that no one can effectively possess and use the land. Use rights, such as grazing permits, are also a problem when there are too many people having use rights to effectively exercise them.

The Indian Land Consolidation Act and Other Legislation

The Dawes General Allotment Act of 1887 required the breakup of Indian reservations. Portions of reservations were allotted to individual Indian family heads and the remainder was put into private (usually non-Indian) hands. Indian nations lost two-thirds of their land base until allotments were frozen in the Indian Reorganization Act of 1934. That meant that while the United States no longer gave allotments, individuals and families continued holding allotment interests where the United States owns the land in trust for individuals.

Also in 1934, Congress enacted a statute to help undo the adverse affects of allotments. 25 U.S.C. Sec. 465 allows the Secretary of the Interior to buy, give up, give, exchange or assign interests in lands, water rights, or surface rights "for the purpose of providing land for Indians." In 1974, Congress recognized the need to end small interests in allotments and checkerboarded patterns of land ownership and enacted the Indian Land Consolidation Act, 25 U.S.C. Sec. 2201, et seq. It permits Indian tribes to adopt a land consolidation plan for the sale or exchange of tribal lands or interests in lands to eliminate undivided factional interests in Indian trust or restricted lands (allotments) or consolidate tribal landholdings. 25 U.S.C. Sec. 2203. Lands must be bought, sold, or exchanged for the value of the land, with provisions for cash or exchange when land is traded. The Indian Finance Act of 1974 provides for an "Indian Revolving Loan Fund" for the purchase of land by a tribe or individual Indian. 25 U.S.C. Sec. 1466.

These are tribally-specific laws which are designed to deal with the anarchy of large numbers of people who hold as little as a 1/25,000th interest in a piece of land and to restore lands to the tribal land base. Legislation to utilize these statutes should address:

• The tribal reservation or land base(1).
• The source of funds for land acquisition (e.g. trust accounts from the general revenue of the tribe or dedicating certain kinds of income for land purchases).
• Communication with federal, state and local agencies (e.g. counties or school districts with land titles) and with private landholders.
• The responsible person or agency and method of determining fair market value of lands to be bought, sold, or exchanged.
• An identification of lands the tribe wishes to sell, buy, or exchange and priorities for such land transactions.
• Provisions for receiving land interests from allotment owners.
• Eminent domain provisions for the condemnation and forced sale of land interests for public purposes by allotment holders or others(2).
• The revision of inheritance laws to provide who may or may not inherit interests in tribal or allotted lands(3).

Comprehensive Land Use Planning Codes

The American Planning Association (www.planning.org) has model statutes and a Guidebook (www.planning.org/plnginfo/growsmar/guidebk.html) for comprehensive land use planning and specific land use planning codes. Any Indian nation, which wants to take a comprehensive look at controlling its lands and land base, should consider:

1. Planning Statute Reform
   1. Study commission of legislators and department heads
   2. Independent study commission with legislators, a department head, and citizen representatives
   3. A permanent joint legislative study committee on planning, land use, and growth management
   4. An interagency planning and land-use task force and advisory committee

2. A statement of purposes and grant of power to whatever reform model is chosen

3. Definitions

4. Planning agency organization 
   1. Creation of a planning agency
   2. Functions and duties
   3. Authority to adopt rules and issue guidelines and orders
   4. Reports

5. Plans
   1. Strategic futures plan
   2. Agency strategic plan of operation
   3. Comprehensive plan
   4. Land development plan

6. Functional plans(4)
   1. Transportation plan
   2. Economic development plan
   3. Telecommunications and information technology plan
   4. Housing plan, with advisory committee and annual progress report
   5. Planning for affordable housing:
      1. Model Balanced and Affordable Housing Act
      2. Strong Council method
      3. Council and Regional Planning Agency together
      4. Action by Council or Planning Agency
      5. Application for Affordable Housing Development and appeals

7. Plan review and adoption

8. Capital budget and capital improvement program

9. Siting of government facilities

10. Areas of critical concern

11. Regional impact developments

12. Regional planning 
    1. Creation of agency
    2. Boundaries
    3. Representation
    4. Voting
    5. Officers and committees
    6. Rule-making authority
    7. Executive director, contracts, purchases and leases
    8. Agency powers and duties
    9. Reports
       

13. Plan preparation

14. Plan review and adoption

15. Relationships and agreements with other levels of government

These factors show the many possibilities that are available to undertake comprehensive planning.

Specific Land Use Laws

Indian nation leaders and planners should have a good understanding of the tribe’s long- and short-term needs and goals. Land use planning is essential for economic development. That is, if you are to attract business to your reservation, you must think out what it is that will bring business in. If, for example, you want to attract retail stores, convenience stores, gas stations, shops and other businesses which provide goods and services to the public, you must first think of (1) where you want those businesses to locate; (2) whether land is available in those areas or it can be acquired; (3) whether the land is tribal trust, allotted, or private land; (4) the nature of the business you want; and (5) what steps are necessary to purchase or free up land for the use you desire. These approaches are usually used for small commercial development.

Much the same approach is used for large business development, such as industrial parks, shopping centers, resorts, or other large ventures. Assuming that the tribe has effective control of the land, it should set aside specific, surveyed, areas of land with all the necessary environmental and archeological clearances so that when a business is found to locate upon the land, all the clearances need for secretarial approval of a lease are complete.

The public needs to be involved in this process too. Site plans should be made public so that people will know what is being done.

Special uses of land for commercial development require a great deal of thought. Are your restrictions going to be made by statute or in leases negotiated with developers or businesses? How will you address sovereign immunity? Will tribal assets or income be pledged as part of the venture? Are the plans to pledge such assets or income realistic?

Tribes should consider similar plans for other areas of development, including future housing projects, economic development ventures and other short- and long-term goals.

The land use code development agenda can be a big one and it can include:

• Environmental protection codes
• Aesthetic regulation (how you want your reservation to look)
• Historic preservation
• Farmland, grazing, wetlands, lake or forest preservation
• The protection of civil rights to property or interests in property
• Growth management
• Eminent domain
• Laws to revitalize communities
• Eminent domain
• Special provisions for tribal court jurisdiction and litigation.

Conclusion

This is only an overview of the possibilities for land use code development. It shows that there are tribal and Indian law-specific subject areas and alternatives to undertake either large planning and land use policy and law development or select only specific areas.

Land Use and Planning Bibliography

American Planning Association, http://www.planning.org/

Cyburbia Planning Resource Directory, http://www.cyburbia.org/

Hagman, Donald G. & Julian Conrad Juergensmeyer, Urban Planning and Land Development Control Law (St. Paul: West Publishing Co. 1986).

Mandelker, Daniel R., Roger A. Cunningham & John M. Payne, Planning and Control of Land Development: Cases and Materials (Charlottesville: Michie, 1995).

Mandelker, Daniel R. Land Use Law, www.wulaw.wustl.edu/~mandelke/Land_Use/

Rosebud Sioux - Rosebud Sioux Law And Order Code Land Use

Warm Springs Tribal Code Ordinance 56 Chapter 411 Zoning And Land Use Code

Swinomish Tribe Title 14 Environment And Land Use

Squaxin Island Tribe Land Use Ordinance (Second Draft)

Best Practices: Land Use and Planning
Navajo Nation Land Code

The Navajo Nation has the largest land base of any American Indian Nation, with approximately 25,000 square miles of land. It is almost the size of South Carolina in size. The Navajo Nation, as it is with most Indian nations, has difficulties administering its lands because they consist of lands held in trust by the United States for the benefit of the Navajo Nation ("reservation" lands), lands held in trust for individual Navajos ("allotments"), and lands purchased for the Navajo Nation as the result of the Navajo-Hopi land dispute (e.g. the "New Lands" area along the Arizona-New Mexico border) and lands purchased by the Navajo Nation (e.g. the "Big Boquillas Ranch" to the immediate south of the Grand Canyon) or leased by it (e.g. a Bureau of Land Management lease of lands at the San Francisco Peaks near Flagstaff).

The Navajo Nation land code materials in these materials consist of many of the provisions of Title 16 of the Navajo Nation Code (1995), which is the title that deals with land. This approach to land code development is important, because it deals with many different subjects of land use and control, and these statutes are published. That is important, because outside lenders, corporate attorneys, and others who wish to do business with or within the Navajo Nation want a reliable method to "find" the Navajo Nation law on land tenure and land use control.

The chapters included here deal with various kinds of land use problems. They are:

Policy on the Acquisition of Lands-Chapter 1

This policy, which was originally enacted in 1954 and updated at various times through 1968, is designed to consolidate Indian holdings in the "checkerboard" area of the Navajo Nation, provide grazing lands to Navajos who do not have grazing permits, provide additional lands to deal with population overcrowding, deal with "excessive use" or overgrazing, and obtain land for Navajo Nation Enterprises. The last purpose is designed to address land expansion for enterprises such as the Navajo Agricultural Products Industry and deal with housing sites for the Navajo Housing Authority.

This chapter follows the excellent publication device of publishing citations to other portions of the Navajo Nation Code dealing with similar subjects, and it references the applicable federal land statutes which must be used to implement this chapter. 16 NNC Sec. 1, "cross references."

The thrust of this chapter is to deal with open-range grazing in the checkerboard area, which is composed of many individual allotments, but 16 NNC Sec. 6 makes it clear that the Navajo Nation will acquire lands for business and industrial purposes in additional agriculture and range lands. This chapter deals with procedures to purchase land, appraisals to find fair market value, and plans for the use of acquired lands.

This chapter deals with the reality that while the Navajo Nation has a pastoral history, there is not enough land for those purposes. While modern economic development land acquisition is covered in this chapter, there is a clear policy of keeping the traditional economy and expanding it. This is in keeping with "small is better" economic planning theories.

Land Acquisition Trust Fund-Chapter 2

Obviously, if the Navajo Nation is to have an aggressive policy to acquire new lands, it must have a plan to raise the money to buy them. This chapter establishes the Navajo Nation Land Acquisition Trust Fund, which is funded by taking at least 2% of all projected Navajo Nation revenues for each fiscal year and putting them in a trust fund which will earn interest. The Resources Committee of the Navajo Nation Council must adopt procedures for investments and land purchases.

Acquisitions of Lands-Chapter 5

This chapter takes advantage of the Isolated Tract Law, which deals with the purchase of certain public lands, and the possibility of receiving gifts of land (e.g. from missions that are closing or ranches that are going out of business). This chapter permits the President of the Navajo Nation to watch for and bid upon available public lands. It also permits the president to accept gifts of lands "within the exterior boundaries" of the Nation worth up to $1,000. The President must obtain approval for lands within the Reservation worth more than $1,000 and get approval for lands worth more than $10,000 either within or outside the Navajo Nation.

Navajo Land Consolidation Plan-Chapter 6

This is the most ambitious Navajo Nation land acquisition chapter and it is an example of how an Indian nation can take advantage of the Indian Land Consolidation Act ("ILCA"). Section 501 carefully sets out the federal statutes it will take advantage of, including the ILCA, The Indian Finance Act, the Federal Property and Administrative Services Act, and specific Navajo-Hopi legislation.

Section 502 establishes a "land consolidation area" to indicate what land areas it intends to address. They include the boundaries of the Navajo Reservation, Navajo "Indian Country" under federal law, major counties in New Mexico, and all of the "aboriginal land area of the Navajo Tribe of Indians, as established by the Indian Claims Commission." The last area is important, because it seeks expansion through the original lands occupied by Navajos in historic times.

Section 503 requires the monitoring of available lands and the development of specific proposals for acquisition and consolidation by the Resources Committee of the Navajo Nation Council. This section takes advantage of deposits into an interest-bearing trust account held by the Secretary of the Interior for land acquisition.

This section gives the Resources Committee broad powers to buy, sell, and exchange land interests, and purchase small interests in allotments from allotment-holders. This is an administrative code, and the Office of Navajo Land Administration has the power to adopt regulations to implement the Land Consolidation Plan, with the approval of the Resources Committee.

Use and Disposition of Lands Generally-Chapter 7

Many of the provisions of this chapter are old. It is designed to set the policy for the use of lands by lease by non-Navajos (e.g. traders, religious organizations, and other non-Navajo persons and organizations), and it deals with rights-of-way, surveys for surface activities, oil and gas prospecting, and other exploration permits. Environmental concerns are expressed in Section 604, which cautions that injury to trees and shrubs requires special permission in advance.

Homesites-Chapter 9

This chapter deals with the procedures for individuals to obtain homesite leases for individual housing construction. This chapter is controversial to administer. That is, while it is designed to deal with setting aside lands "in or near communities," the withdrawal process spoken of can be difficult. A great deal of Navajo Nation "Reservation" land is actually open range. Some Navajos do not realize that a use right on an open range, a grazing permit, is not an interest in land. Despite that, individual Navajos attempt to get homesite permits within an open range to get control of "their" grazing area.

This chapter is important, because it is being used for non-public housing initiatives. The Navajo Nation has worked closely with area banks, the Fannie Mae Corporation, the Federal Deposit Insurance Corporation (which regulates bank loans) and others to prompt loans to individual Navajos to build homes. Separate deed of trust statutes permit Navajos with a lease of Reservation land to get mortgages on their homesite permit.

Residential and Use Rights on Lands Added to the reservation-Chapter 15

The Navajo Nation has been aggressive about locating and adding lands to its land base, and this chapter is an example of arrangements to deal with a special area, the McCracken Mesa, near Shiprock, Navajo Nation (New Mexico). One of the historical problems of the Navajo Nation is that Navajos tend to settle on public or other lands and then claim "customary use" right to the lands. When the lands are added, they claim preference, and this section deals with that. It establishes an application procedure, creates a land management district, and deals with range management and grazing permits. This is another example of the Navajo response to the special needs of its traditional economy and land management for both residential and pastoral purposes.

Conclusion

These portions of Navajo Nation land use statutes show how to deal with land acquisition and consolidation, the private use of lands set aside for the Navajo Nation, leases and uses for economic development, and other purposes. The drafters have taken advantage of general legislation for land development (i.e. the Indian Land Consolidation Act) and specific legislation. They have also sought to respond to new challenges and opportunities. These codes make use of organs of the Navajo Nation Council (e.g. the Resources Committee) and government agencies, and use administrative law models for enforcement.

Best Practices: Land Use and Planning
Cabazon Land Use Ordinance

The "Cabazon Land Use Ordinance" of the Cabazon Band of Mission Indians of the Coachella Valley of California is an important example of a land use code which is designed to deal with high density land use in a small area.

This code highlights an important point in Indian Country land use code development: You must know your land area very well and know exactly what you want to do with it. The Cabazon Band has a small land area near Palm Springs, California and an interstate highway runs through or by it. The Band obviously wanted a code that would respond to its needs for high-density land use and areas for low to high-density residences, mobile home and recreational vehicle development (to take advantage of "snow birds" who live in California in the winter) and commercial use. The code also deals with things such as industrial uses, advertising, outdoor events, parking and landscaping, and enforcement of the code. It is divided into 20 chapters with various subject matters.

Administration

There is a Planning Commission and a Planning Department with the ability to deal with plans by developers for land use. This is similar to county planning commissions and planning departments in the various states. That is, in the states, there are planning commissions and departments that must approve the plans of developers who wish to build on sites of land. The Cabazon ordinance similarly requires any developer of real property or a person authorized by an owner of land to develop a specific plan for use of the land which must be approved by the Planning Commission. Section 6-204 sets out the requirements for a land use plan, and they are actually a good checklist for land development, addressing things as varied as streets, waste disposal and utilities, seismic studies (i.e. earthquakes, because this is in an earthquake zone) and architectural design.

There are two approaches to land use development: One is where there is an attempt to anticipate every possible problem with land use and to put it in a statute, e.g. zoning ordinances. Another is to outline the elements of a land use plan and require the submission of a land use plan which can be approved after public hearings and a decision on whether the plan makes the best use of the land and best protects those who may buy or lease. This also gives an opportunity to use approved plans as the basis of regulation and the creation of individual rights against the developer (i.e. using an approved land use plan as a part of any land title or lease to place restrictions on those who lease or buy from a developer.(5)

Residential Use

This code anticipates various kinds of residential uses. It first discusses "low density residential" housing, which deals with one-family dwellings that may have crops, noncommercial animal use (e.g. horses kept for recreational use), and adjacent areas for public parks, playgrounds and country clubs(6). Next, there is "medium-density residential" housing, which deals with two-family dwellings, multiple-family dwellings, bungalow courts and apartment houses. It also deals with churches, libraries, etc. Third, there is "high-density" residential housing to deal with apartments, hotels, motels and resorts, offices, etc. All three levels of density have restrictions on the land size, placement of buildings, and how the land area will be used in accordance with the best land use.

This is designed to plan neighborhoods and the kinds of land use there will be for a given kind of neighborhood or development. People have expectations when they move into an area that the character of the area will remain the same. This kind of density planning makes it possible for a family to be assured that if it buys or leases a little "ranchette" where they can have a horse for their children that the neighborhood will remain the same and they will not find an apartment house next to their home. Similarly, high-density housing needs to be planned to take into account the nature of a more crowded neighborhood. These sections permit planners to review proposed housing plans to control population and use density for the kind of living people and the Band expect.

Mobile Home and Recreational Use

Another aspect of the particular area is the fact that people who cannot afford a house may want to have a mobile home. A given developer may want to develop a land area for visiting winter "snow birds" to put their recreational vehicles. These are sensitive development issues. Mobile home parks are controversial in many places because some look down on mobile homes. In other areas, there is a danger that mobile home parks may become overcrowded. There are also important law enforcement and criminal justice planning aspects of mobile home park development. Planners and administrators will want to be assured that mobile home residents can have a dignified and safe environment and that recreational vehicle parks are attractive to their users as well. This section of the code deals with the elements of planning that are necessary for these land uses.

Commercial Development

The code first deals with smaller commercial uses, including home furnishing businesses, food stores, restaurants, department stores, clothing stores, etc. This portion of the code is designed to attract those kinds of businesses, and development standards are set out. Next, the code deals with regional commercial uses, which is in the nature of a shopping center.

This code also addresses light, medium and heavy industrial uses. Examples of light industrial uses include research and design facilities, office buildings, warehouses, animal hospitals, gas stations and associated uses. Medium to heavy industrial uses include agricultural use, manufacturing, and thins such as junkyards, dumps, treatment plants, mining, and foundries. There are development standards for each kind of industrial use.

Natural Resources and Agriculture

The code anticipates uses of the land for crops, grazing, apiaries (bee raising), fishing lakes, and other kinds of natural resource uses. Here too, there are standards for making an application for such use and restrictions upon uses.

General Provisions for Enforcement

This chapter of the code deals with public and private projects and clearly requires a land use permit which will hold the tribe harmless for any kind of liability which may arise from the particular kind of land use. Rather than rely upon sovereign immunity for protection, the code immunizes the Cabazon Band from suit by a "hold harmless" provision. The difficulty with this approach is that it assumes that the land user will have the resources to do that. Sovereign immunity is the backup.

The general provisions then go on to fix many different kinds of land use restrictions, including planned residential developments, location and size of dwellings, parking, loading zones, yards, and the usual subjects of land use. There are provisions for permits, plot plans, and other restrictions on building.

Advertising

The code has a section to deal with advertising and restrictions upon signs. There follow sections which deal with parking and landscaping and definitions.

Enforcement

This is an ambitious code, with many restrictions which require land users to submit detailed plans for land use and which regulate actual land use. The key to the enforcement of such provisions is the enforcement mechanism. Chapter 19 delegates the responsibility for enforcement to the Tribal Planning Commission and Planning Department to issue licenses and permits, and to a Code Enforcement Office, which is responsible to conformance with the land use code and conditions of approval of permits in accordance with plans.

The difficulty with the enforcement section is that there are no provisions for administrative remedies or administrative appeals, and no provisions for a Cabazon court for enforcement. This likely assumes that enforcement will be in the California court system because California is a "P.L. 280" state.

The enforcement section does not set out detailed instructions for enforcement. While the code is ambitious and has many provisions to assure the quality of land use development in accordance with land use plans, we do not know what resources or expertise the Planning Commission or Department have for the approval of permits, and we do not know what resources the Code Enforcement Department has to investigate for violations. The difficulty with such an ambitious code is that it is highly technical and requires expensive oversight and administration bodies. However, given the nature of any one who wishes to use the Cabazon code, it is an example of an approach to comprehensive land management using planning and land use standards.

Best Practices: Land Use and Planning
Gila River Land Use Code

The Gila River Indian Community in Arizona is small and it has a limited land base. It chose to adopt a specific land use code for homesites to focus upon land use development for housing. The code is extensive, and it deals with many aspects of a process for homesite permits with land use restrictions.

The code is designed to deal with the assignment of individual lots within subdivisions, homesite leases outside subdivisions, the actual use of homesites, the revocation of assignments, the transfer of assignments, and penalties for violations of the land use code.

The code deals with administration and enforcement in the very beginning. There are two administrative entities to administer the code. The first is the "Subdivision Administrator," who is generally responsible for the Land Use Planning and Zoning Program. The Administrator receives applications for homesites, reviews applications to submit to the Planning and Zoning Commission, periodically inspects homesites for compliance with the code, keeps public records, and generally administers the homesite program. The Planning and Zoning Commission makes the actual assignment of homesites within subdivisions or on unsubdivided land, revokes homesite assignments, transfers them, gives permission for a second home, and it handles appeals and the imposition of penalties.

There are detailed provisions for the process of assigning homesites, within or without subdivisions, and conditions for homesite purposes. There are also provisions for revocation, transfers and inheritance.

Any person who is dissatisfied with a decision of the Subdivision Director or the Planning and Zoning Commission can take an appeal to the Legislative Standing Committee. If the Subdivision Administrator finds that there is a violation of the code by any person, or the terms and conditions of a homesite, the Subdivision Administrator can institute proceedings in the Community Court to ask for injunctive relief, seizure and forfeiture (of what, the code does not say), the enforcement of civil penalties, or correction of the violation. A violation of the code also carries a fine of "no less" than $50 and up to $500 and jailing for up to 20 days.

There are separate provisions for community members and for the Gila River Housing Authority to receive a homesite assignment.

The code has detailed rules for the "utilization of homesite assignments," including provisions for easements, single-family detached homes and outbuildings, and other provisions for use of the land. There are restrictions on building placements and the assignment of interests in the homesite. There are provisions for financing a house by the Gila River Housing Authority or U.S. Government programs. (There will need to be provisions for private financing schemes.)

The code provides for subdivisions and platting. This is an excellent approach to land use, because where subdivisions are provided for in accordance with good surface use, landscaping, housing, etc. restrictions, that puts things in place for planning specific projects. Chapter 2 of the code is its "subdivision regulations," and they give detailed guidance on the creation of subdivisions and platting (i.e. recording their location and use on public records).

The subdivision regulations are administered by the plat officer (who is responsible for processing requests for subdivisions), a tribal surveyor, a land use planner (who provides the Commission with information on the proposed subdivision and prepares sketch plans), the Planning and Zoning Commission (which approves plans and plats), the Natural Resources Committee (which reviews plats in accordance with its oversight responsibilities), and the Tribal Council (which gives final approval for signature by the Governor or Lt. Governor on the recommendation of the Natural Resources Committee). This provides a process for a careful and thorough review of subdivision plans in accordance with the subdivision regulations.

There are also detailed specifications for plats and plans that deal with land descriptions, titles, infrastructure, and other requirements. There are also design standards for streets, blocks, lots, and easements.

Finally, the code deals with signs, where they may located, their maintenance and all other aspects of signs.

This is a good code to consider if your land use planning goal is to put things in place to link members desires for a homesite lease with preplanned land use. The code clearly sets out the requirements for individuals to obtain a homesite lease either within our outside a planned subdivision. The subdivision requirements are strict, and they anticipate most requirements for orderly housing areas that comply with health and public safety standards. At the same time, the code provides some flexibility for homesite leases outside subdivision areas.

Gila River is a rural community that is near Phoenix. It needs to mix plans for organized subdivisions and housing communities with the desires of community members to build in rural scattered sites. This kind of ordinance gives a good overview of the housing organizational infrastructure that must be put in place to administer a code. That is, it assigns responsibilities for various aspects of the homesite permit process, from who will process homesite requests and the procedure for processing, to comprehensive restrictions for the approval of subdivisions or a lease outside a subdivision.

There are two aspects to a code such as this. On the one hand, it should be simple enough for enforcement officials to apply the code to individual uses. One of the shortcomings of the code is that it is not very "reader friendly" for individual homesite leaseholders. A code such as this would have to be backed up with simple-to-understand brochures or rules that a lessee can understand and which is capable of enforcement. On the other hand, this is a code for planners, engineers, and developers (whether such may be a private developer creating subdivisions in a special relationship with the Gila River Community or the Gila River Housing Authority). It is a code that would be familiar to housing professionals, and it incorporates features and standards that are familiar to most urban developers.

The problem with this code, as it is with other codes, is that it is an attempt to take a comprehensive look at housing development. It is a good code for building subdivisions. Is it a good code to deal with rural scattered site housing and the simple process of granting leases to community members?

There is another aspect of codes such as this, and that is the "tone" of your community. That is, members of communities should "buy into" efforts to make a community more livable. Are there gang problems? Is there graffiti? Are there problems with stray dogs? Are there residents who are selling alcohol or drugs or engaging in other illegal activity? One modern strategy is to encourage the formation of homebuyer organizations to address the social aspects of subdivisions.

Any planner or tribal official considering this code should ask if it suits your purposes. Is it what you want? Do you want planned subdivisions that will be laid out well and comply with standard urban or suburban subdivision requirements? If so, this code is your model. However, the administration of a code such as this requires a great deal of expertise. Expertise is required at the "front end," where planners are considering whether or not to approve a subdivision plat and plan. Expertise is also required at the "back end," and that is where social planning is needed. That is, those who have a homesite lease need to know their responsibilities. There will need to be enforcement effort. Does the Subdivision Administrator have assistants to carry out his enforcement duties in addition to his planning ones?

Despite the fact that technical codes such as this are necessary, and there need to be the people with the expertise to implement them, tribal council members need a way to review the implementation of a code such as this to make certain that their dream for their community comes true. This requires a strong relationship among the Council, the Planning and Zoning Commission, responsible Council committees, the Subdivision Administrator and those who are building in accordance with subdivision regulations.

At end, there should be a place for the lessees. This code makes little mention of their participation in the overall process. This is where the Subdivision Administrator and the Planning and Zoning Commission can play a leadership role. There should be town meetings, focus group sessions, or other means of getting public input into subdivision approval. There should be similar meetings of lessees to address their issues.

This is a balance of political considerations with technical land use techniques. That is, aside from a good technical code such as this, there needs to be good political oversight and lessee participation to make a good technical code work the way it should.

Footnotes

1 The land title of a given reservation in the form of statutes, executive orders, and other land documents must be researched to see if there are "outer boundaries" to the reservation, i.e. areas within which the tribe may acquire non-Indian, Indian, or allotted lands.

2 Eminent domain is a very controversial but necessary area of law, because it gives the government the authority to take someone's land or an interest in land for fair value whether that person wants to give up the land or not. There are jurisdiction problems over non-Indians and non-Indian lands which should be considered.

3 Inheritance provisions should be studied carefully because they, along with escheat (when land will go to the government rather than an heir) have been the subject of a great deal of constitutional litigation.

4 These can be the subjects of specific land use codes.

5 This is called a "restrictive covenant."

6 Here, Cabazon is taking advantage of the fact that in the nearby valleys there are many golf courses and recreation areas. The Band obviously kept an eye on the area's economic development potential.