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Bugenig v. Hoopa Valley Tribe

 

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After exhausting all remedies within the tribal court system, Roberta Bugenig, a non-Indian living on the Hoopa Valley Indian Reservation (the “Reservation”) in northern California, filed suit in federal court seeking declaratory and injunctive relief against the Hoopa Valley Tribe’s exercise of regulatory jurisdiction over use of her fee lands inside the Reservation. The Ninth Circuit reversed the district court, holding that the Tribe cannot regulate timber harvesting on fee-patented private property within Indian reservation boundaries.

Every other summer, the Hoopa Valley Tribe holds a ten-day, world renewal dance at five locations on the Reservation, including the White Deerskin Dance Site (the Site). To preserve the integrity and sanctity of the Site, the Hoopa Tribal Council adopted a forest management plan in 1995. The forest management plan prohibited logging within a half-mile buffer zone surrounding the Site and the trail leading to the Site. The federal Bureau of Indian Affairs approved the buffer zone after the Tribe gave notice to affected fee-land holders and held public hearings.

Shortly after the Tribe established the buffer zone, Roberta Bugenig purchased forty acres of fee land within the external boundaries and the buffer zone. Bugenig wanted to selectively harvest trees on her land inside the buffer zone. Bugenig applied to the State of California for a logging permit, and to the Hoopa Valley Tribal Council for a hauling permit to transport the timber on a tribal road. Although the Tribal Council refused to grant the hauling permit, Bugenig sent a check for $140 to the Tribal Council as payment for the hauling permit after she received the logging permit from the state. Bugenig started harvesting trees, despite the fact that the Tribal Council returned the check and ordered Bugenig to cease and desist logging inside the buffer zone.

The Tribe filed suit against Bugenig in the Hoopa Valley Tribal Court, seeking injunctive relief and damages resulting from the logging activities in violation of the forest management plan. After the Tribal Court issued a temporary restraining order and a preliminary injunction, California revoked Bugenig’s logging permit. The Tribal Court held that the Tribe had jurisdiction over Bugenig’s fee lands and permanently enjoined her from harvesting timber within the buffer zone.[1] Bugenig appealed to the Northwest Regional Tribal Supreme Court. The Tribal Supreme Court affirmed the Hoopa Tribal Court’s decision based on the second exception to the main rule of Montana v. United States[2] and the Hoopa-Yurok Settlement Act (Settlement Act).[3]

Having exhausted her remedies in the tribal court system, Bugenig filed suit in federal court, seeking declaratory and injunctive relief against the Tribe’s exercise of jurisdiction. The Northern District of California granted the Tribe’s motion to dismiss, holding that Congress expressly authorized jurisdiction over nonmembers when it passed the Settlement Act. However, the district court did not reach the merits of the Tribal Supreme Court’s holding based on the second Montana exception.[4] Bugenig appealed.

The Ninth Circuit reversed, holding that nothing in the Settlement Act explicitly conferred regulatory jurisdiction to the Tribe over nonmembers. The Ninth Circuit disagreed with the district court’s interpretation of the Settlement Act, which “ratified and confirmed” tribal governing documents that assert tribal jurisdiction over nonmembers. Examining the legislative history of the Settlement Act, the Ninth Circuit concluded the “ratified and confirmed” language “may simply represent Congress’s attempt to establish the Hoopa Valley Tribe and the Yurok Tribe as the governing authorities for their respective reservations, rather than a conscious delegation of authority to the tribes to exercise jurisdiction over nonmembers.”[5] The Ninth Circuit reasoned that although an argument could be made for congressional authorization of tribal jurisdiction in the Settlement Act, the Supreme Court requires an “express authorization” from Congress for an Indian tribe to exercise authority over nonmembers.[6] Courts are reluctant to find the requisite congressional authorization through implication. In Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation,[7] the Supreme Court found that all of the examples of express statutory delegations of authority contained the same standard language: “notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.”[8] The Ninth Circuit reformulated this inquiry into a “clear statement rule,” holding that because the Settlement Act failed to include the “gold standard” of delegation in the form of the “notwithstanding” proviso and does not reflect on its face any congressional consideration of the proper scope of tribal authority, the Settlement Act did not overcome the presumption against tribal jurisdiction over nonmembers.[9]

The Ninth Circuit also concluded that the Hoopa Valley Tribe’s assertion of jurisdiction over Bugenig’s land use could not be upheld under the second Montana exception. Under the main rule in Montana, “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.”[10] But tribes may exercise civil jurisdiction over nonmembers 1) who enter consensual relationships with the tribe or its members, or 2) when the nonmember activity “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”[11] The Ninth Circuit underscored that the second exception “is narrowly construed.”[12] Otherwise, observed the court, the exception would “swallow the rule because virtually every act that occurs on the reservation could be argued to have some political, economic, health or welfare ramification to the tribe.”[13] The exception is thus limited to the extent that tribal jurisdiction “is necessary to protect tribal self-government or to control internal relations.”[14] Recognizing that Bugenig’s logging may have some implications for the Tribe, the Ninth Circuit emphasized that “the dispositive inquiry is whether [Bugenig’s] logging threatens to ‘trench unduly on tribal self-government.'”[15] Rather than conducting an aggregation analysis and considering the overall impact of potential logging in the buffer zone, the court looked only to the effect of Bugenig’s logging of her own particular parcel on the Hoopa Valley Tribe’s political integrity. The Ninth Circuit concluded that this selective timber harvest on a parcel of less than three acres was not demonstrably serious, nor did it trench unduly on tribal self-government.[16]

The Ninth Circuit distinguished the Hoopa Valley Tribe’s buffer zone from a recent decision upholding the Salish and Kootenai Tribes’ authority to regulate nonmember activity that threatened tribal water rights and water quality.[17] Due to the tangible and direct impact posed to tribal health and welfare, the Ninth Circuit stated that while “it [was] difficult to imagine how serious threats to water quality could not have profound implications for tribal self-government,” the same could not be said of the buffer zone.[18] Finally, the Ninth Circuit confirmed the inapplicability of the second Montana exception based upon the Tribe losing its right to exclude nonmembers from the Reservation.[19] The court noted the strong connection between tribal power to regulate and tribal ability to control the land. Because “tribes lack authority to regulate, and thus power to adjudicate, activities on land alienated to non-Indians,”[20] the Ninth Circuit concluded that the main rule of Montana controlled this case.


[1] See Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1214 (9th Cir. 2000). Bugenig was also found in contempt of court for failing to comply with the Tribal Court’s order to clean up the property, to cooperate with the Tribal Forestry Department in developing a reforestation plan, and to pay the Tribe’s costs. Id.

[2] 450 U.S. 544 (1981). Under the main rule in Montana, “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Id. at 565. However, tribes may exercise civil jurisdiction over nonmembers who enter consensual relationships with the tribe or its members, or when the nonmember activity “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id. at 565-66.

[3] Hoopa-Yurok Settlement Act of 1988, 25 U.S.C. §§ 1300i-1300i-11 (1994). The Act partitioned the Reservation into two parts. The original reservation, as defined in 1876, was set aside as the Hoopa Valley Indian Reservation, and the extension added in 1891 was set aside as the reservation for the newly recognized Yurok Tribe.

[4] 229 F.3d at 1215.

[5] Id.

[6] Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997).

[7] 492 U.S. 408 (1989).

[8] Id. at 433 (citations omitted).

[9] 229 F.3d at 1229.

[10] Montana v. United States, 450 U.S. 544, 565 (1981).

[11] Id. at 565-66.

[12] County of Lewis v. Allen, 163 F.3d 509, 515 (9th Cir. 1998) (en banc).

[13] Id.

[14] Id. (quoting Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997)).

[15] Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1220 (9th Cir. 2000) (quoting Strate, 520 U.S. at 458).

[16] The court also noted the inapplicability of the second Montana exception in situations where tribes may pursue their cause of action in state or federal court. Because California law provides protections for Indian resources, the Hoopa Valley Tribe had a form of redress against Bugenig in state court. SeeCal. Pub. Res. Code § 5097.9 (2000) (prohibiting state agencies from “caus[ing] severe or irreparable damage to any Native American sanctified cemetery, place of worship, religious or ceremonial site, or sacred shrine located on public property, except on a clear and convincing showing that the public interest and necessity so require”). Therefore, the Tribe’s exercise of jurisdiction was not “necessary to protect tribal self-government.” Montana, 450 U.S. at 564 (1981).

[17] Montana v. Envtl. Prot. Agency, 137 F.3d 1135 (9th Cir. 1998) (upholding a facial challenge to EPA regulations qualifying Indian tribes to be treated as states for purposes of setting water quality standards under the Clean Water Act).

[18] 229 F.3d at 1222.

[19] Nevada v. Hicks, 196 F.3d 1020 (9th Cir. 1999) (upholding tribal jurisdiction over nonmembers because the tribe had not lost its power to exclude nonmembers).

[20] Id. at 1027.

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