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Bugenig v. Hoopa Valley Tribe

Citation: 32 ELR 20145
No. No. 99-15654, 266 F.3d 1201/53 ERC 1168/(9th Cir., 09/11/2001) Dist. Ct. aff'd

The court affirms a district court decision that a Native American tribe in California has the authority to regulate logging by a non-Native American who owns fee lands within the reservation. In 1995, the tribe, pursuant to its constitution, adopted a timber-harvesting plan for the reservation that established a one-half mile buffer zone around a dance ground of cultural and historic significance. The owner subsequently purchased fee lands within the reservation, received a state logging permit, and sought the tribe's permission to conduct logging. Although the tribe denied the logging request, the owner began logging. A tribal court enjoined the logging, and the owner filed a complaint in federal court asserting that the tribe did not have subject matter jurisdiction over her land.

The court first holds that although the General Allotment Act states that a tribe generally loses regulatory power over reservation land conveyed to a non-Native American, Congress can delegate such regulatory powers to a tribe. The court then holds that in this case, Congress delegated to the tribe authority to regulate logging activities on fee land in order to protect cultural and historical resources. The Settlement Act defining the reservation ratified and confirmed the tribe's constitution, which stated that the tribe had jurisdiction over all lands within the reservation and that any tribal regulation affecting non-Native American-owned reservation lands must be subject to the approval of the Commissioner of Indian Affairs. Further, the plain language, statutory context, and legislative history of the Settlement Act establishes that Congress gave legal force to the tribe's constitution and its provisions. In addition, the tribal constitution unambiguously grants the tribe authority over the owner's land and unambiguously allows the tribe to enact the timber-harvesting plan. Moreover, read together with the tribal constitution, the Settlement Act is an express delegation of authority to the tribe to regulate non-Native American lands within the reservation's boundaries. The court next holds that Congress could delegate regulatory authority over non-Native American lands to the tribe. Because Congress can regulate non-Native American land within a reservation under plenary authority provided by the U.S. Constitution, the owner's land remains subject to plenary federal jurisdiction. And Congress could delegate its plenary authority over the owner's land to the tribe.

Dissenting judges would hold that the tribe's constitution could not, and did not, reserve or confer upon the tribe plenary jurisdiction over other peoples' land and that the tribe could only obtain such jurisdiction through a separate express act of Congress.

[A prior decision in this litigation was digested at 31 ELR 20165.]

Counsel for Plaintiff
James S. Burling
Pacific Legal Foundation
2151 River Plaza Dr., Ste. 305, Sacramento CA 95833
(916) 641-8888

Counsel for Defendants
Thomas P. Schlosser
Morisset, Schlosser, Ayer & Jozwiak
135 Second Ave., Ste. 1350, Seattle WA 98101
(206) 386-7755

Graber, J. Before Schroeder, Hug, Nelson, Silverman, McKeown, Paez, and Berzon, JJ., with Fernandez, J., dissenting, joined by Kleinfeld and Wardlaw, JJ.