Writing enforceable tribal codes for land use, utility management, and governance enables tribes to control how their land is developed, who uses it, and how public services are provided on tribal lands. However, this can often be a challenge when trying to parse the legal implications, navigate federal codes, and determine what will be most effective for the tribe.
Patterson Real Bird & Rasmussen LLP is a majority native-owned law firm with deep experience in serving the legal needs of tribal governments. To speak directly with an attorney about drafting or updating a tribal land use or utility code, call our tribal code attorneys at (303) 926-5292 in Colorado, (505) 395-4500 in the Southwest, (701) 854-7619 in the Great Plains region, or (202) 434-8903 in Washington, DC.
Overview of Writing Tribal Codes for Land Use, Utility, and Governance
Creating tribal codes for land use and governance helps protect tribal lands, clarify jurisdiction, and improve service delivery to tribal communities.
- Land use codes support tribal sovereignty by regulating how land is allocated and used.
- Utility codes allow tribes to provide essential services like water, power, and sewer under tribal control.
- Governance codes ensure decisions reflect tribal values and comply with tribal and federal law.
Patterson Real Bird & Rasmussen LLP assists tribal governments nationwide with these efforts through culturally-informed legal advice and representation.
Tribal Land Use and Governance: The Basics
Federal recognition of tribal sovereignty under 25 U.S.C. § 450 affirms a tribe’s right to self-govern. Land use laws define how land can be developed, zoned, and regulated. For tribal governments, land use codes serve the additional purpose of reinforcing sovereignty. These codes allow tribes to control land allocation, environmental protections, housing development, and the approval of leases or easements on tribal lands. Furthermore, tribal governance codes support self-determination by providing detailed procedures for rulemaking, enforcement, and court cases.
Jurisdiction varies based on whether the tribal land is trust land, fee land, or allotted land. Therefore, writing effective tribal codes often begins with mapping existing land classifications and determining jurisdictional boundaries for enforcement. Tribal governments must also consider how their codes interact with state and federal environmental and infrastructure regulations.
How Land Use Codes Protect Tribal Land and Culture
Tribal land use codes go beyond zoning maps or building permits. These codes help preserve cultural heritage, regulate land development, and ensure long-term stewardship of natural resources. For example, some tribes include provisions to protect sacred sites, traditional use areas, or environmentally sensitive regions within their zoning designations.
Culturally sensitive land use planning is possible and respects traditional ecological knowledge. For example, in Navajo Nation v United States Forest Service, 535 F.3d 1058 (9th Cir 2008), the court acknowledged tribal religious objections to federal land use decisions, although ultimately ruling against the tribe. Nevertheless, by codifying cultural protections, tribes reduce reliance on federal or state litigation and ensure their laws reflect their values.
Modern land use codes also promote economic development while maintaining traditional priorities. For example, some tribes have established mixed-use zones that support local businesses while reserving nearby lands for ceremonial or subsistence use. Additionally, tribal consultation procedures can be embedded in the code to ensure future projects do not disrupt important cultural or environmental areas.
What Should Be Included in a Tribal Utility Code?
Tribal utility codes authorize and regulate essential services like water, electricity, broadband, and wastewater. A comprehensive utility code typically outlines the creation of a tribal utility commission, including its structure, authority, and responsibilities. These provisions are especially important in communities relying on federal funding under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 5301 et seq. Key sections of a tribal utility code generally include:
- Authority to set rates and fees for service users
- Rules for service connections, disconnections, and reconnections
- Safety and infrastructure maintenance standards
- Complaint procedures and appeal rights
- Enforcement mechanisms, including fines or service termination
These codes are foundational for tribes implementing utility services directly or through intergovernmental agreements. Furthermore, utility codes also support tribal applications for infrastructure grants, since funding agencies often require proof of regulatory capacity. For example, the United States Department of Agriculture Rural Utilities Service requires a law that defines service areas and governance procedures.
Can Tribal Governments Control Who Builds on Their Reservation?
Tribal governments possess regulatory authority over land use and construction on tribal trust lands, subject to federal oversight in some situations. Under the Indian Reorganization Act, 25 U.S.C. § 5101, tribes can establish land use permit systems that control who builds on their reservation, what types of structures are permitted, and how developments are reviewed. Construction control often involves:
- Permitting systems for residential, commercial, or agricultural use
- Environmental review requirements
- Design standards for safety and aesthetics
- Cultural review or archaeological clearances
- Enforcement for unauthorized development
In United States v. Sioux Nation of Indians, 448 U.S. 371 (1980), the court acknowledged that the government wrongfully seized tribal land. While the court offered only financial compensation, which the Sioux refused, this legacy of unresolved land claims continues to fuel modern efforts to assert tribal sovereignty and protect ancestral sites through proactive land use codes. Where tribal governments cannot fully regulate non-member construction on fee lands, if properly codified, they can impose cultural or environmental reviews.
Legal Tools to Help Tribes Manage Their Utilities
Federal programs such as the Indian Health Service, Sanitation Facilities Construction Program, and the Bureau of Indian Affairs Division of Energy and Mineral Development support tribal utility development. However, long-term control depends on codified legal authority within the tribe. Legal tools for utility management include:
- Tribal ordinances creating a public utility department
- Franchise agreements with outside service providers
- Intergovernmental agreements under 25 U.S.C. § 5331
- Enforcement authority within tribal court systems
- Compacting authority under Public Law 93-638
Additionally, in Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014), the Supreme Court reaffirmed that tribal sovereign immunity extends to off-reservation commercial activities. While the case focused on a casino dispute, this precedent clarifies the legal landscape for various tribal enterprises, including utilities, as tribes and their partners must use negotiated waivers of immunity or internal tribal forums to ensure accountability and resolve disputes. Again, clearly, strategically written codes clarify dispute resolution procedures, define limited immunity waivers, or establish utility boards.
What Happens If Tribal Codes Conflict with Federal Laws?
When a tribal code conflicts with federal law, the Supremacy Clause of the United States Constitution (Article VI, Clause 2) gives federal law priority. However, any reputable tribal land use and utility codes lawyer should draft the laws to avoid such conflicts, integrating federal standards.
Conflicts commonly arise in environmental regulation. For example, the Clean Water Act, 33 U.S.C. § 1251 et seq., imposes standards on tribal wastewater systems, especially where discharge affects navigable waters. Similarly, federal endangered species protections influence land use plans that impact protected habitats. When conflicts occur, courts evaluate whether federal law preempts tribal authority. For instance, in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), the court upheld tribal authority to conduct gaming free from state regulation because California’s gambling laws were deemed “civil regulatory” rather than “criminal prohibitory.” The court determined that the federal interest in promoting tribal self-sufficiency and economic development, which was implemented through comprehensive tribal gaming ordinances, outweighed the state’s interest in the matter, thereby reinforcing tribal sovereignty.
Call Today for Help with Tribal Land Use Code Development
Patterson Real Bird & Rasmussen LLP has decades of experience assisting tribes with drafting, revising, and enforcing tribal codes for land use, utility regulation, and governance. Our native law firm has earned national recognition, including Best Law Firms: Tier 1 in Native American Law (Colorado 2025) and Lawyer of the Year: Native American Law (Boulder 2026).
Call Patterson Real Bird & Rasmussen LLP at (303) 926-5292 for the Colorado office, (505) 395-4500 for the Southwest office, (701) 854-7619 for the Great Plains office, or (202) 434-8903 for the DC office to start revitalizing your tribe’s rights and codes today.
FAQs Regarding Tribal Land Use Utility and Governance Codes
As knowledgeable, experienced tribal land use attorneys, here are some of the questions we hear most often regarding this topic:
Can a Tribe Enforce Its Land Use Code on Non-Members?
Enforcement depends on land status and jurisdiction. Tribes typically enforce land use codes on trust lands and tribal members.
What Is The First Step In Writing A Tribal Code?
The process begins with a legal and land status review, followed by stakeholder engagement and code drafting based on tribal priorities.
Do Tribal Utility Codes Require Federal Approval?
Utility operations using federal funding must comply with applicable program requirements, but the code itself does not require formal federal approval.
Can a Tribal Government Deny a Building Permit for Cultural Reasons?
Yes, if the land use code includes cultural protection rules. These must be applied consistently to avoid equal protection challenges.
What If a Tribal Code Is Outdated or Incomplete?
The tribal council can amend or repeal outdated provisions. A trusted tribal code lawyer can help ensure the updated code reflects current laws and tribal priorities.
Who Decides If a Utility Code Is Enforced?
A designated tribal utility board or department usually handles enforcement. Appeals are often addressed in the tribal court system.
How Can Patterson Real Bird & Rasmussen LLP Help Develop Tribal Codes?
Federal Indian law attorneys, like those with Patterson Real Bird & Rasmussen LLP, can help tribal governments understand land use and utility. Consider speaking with an experienced lawyer today by reaching out to the firm at (303) 926-5292 in Colorado, (505) 395-4500 in the Southwest, (701) 854-7619 in the Great Plains region, or (202) 434-8903 in Washington, DC.