Bugenig v. Hoopa Valley Tribe

No. 99-15654 (229 F.3d 1210) (9th Cir. October 3, 2000)

ELR Digest

The court holds that a Native American tribe in California cannot regulate land use of fee-patented private property within its reservation boundary. A nonmember of the tribe that owned her land in fee sought to harvest timber. After receiving a state logging permit, the property owner sent a check to the tribe as payment for a hauling permit that the tribe had previously denied. The tribe returned the check and sued to stop the logging, which fell within a tribe-designated buffer zone around a traditional dance ground where logging was prohibited. Tribal courts found in favor of the tribe, and the federal district court held that through the Hoopa-Yurok Settlement Act that ratified and confirmed the tribe's reservation, the tribe could regulate the owner's land.

The court first holds that nothing in the Settlement Act explicitly confers on the tribe jurisdiction to regulate nonmembers. Similarly, the legislative history contains no indication that Congress considered giving or intended to give the tribe authority to exercise jurisdiction over fee-patented land owned by nonmembers. The court then holds that the Tribal Constitution is ambiguous as to whether the tribe has jurisdiction over the land of nonmembers. In light of the presumption against tribal jurisdiction over nonmembers, the court then adopts a "clear statement rule," under which Congress can make express delegation of power to Native American tribes to regulate the actions of nonmembers, but any such delegation must be truly "express." The court next holds that the Settlement Act falls well short of the required standard because it contains no explicit authorization of jurisdiction and simply incorporates by reference tribal documents that are themselves subject to varying interpretations. The court then holds that the tribe does not have inherent authority to regulate the owner's land. Tribes may exercise civil jurisdiction over nonmembers when (1) the nonmember consents or (2) when nonmembers engage in conduct on fee lands within a tribal reservation that threatens or has some direct effect on the political integrity, economic security, or health or welfare of the tribe. Here, the issue is whether the tribe's exercise of regulatory jurisdiction fits within the second exception. The exception applies when to hold otherwise would threaten the right of the reservation to make their own laws. While the owner's logging may have some political, economic, or health implications for the tribe, it does not threaten the tribe's ability to govern itself in any way.

The full text of this opinion is available from ELR (15 pp., ELR Order No. L-276).

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
Morriset, Schlosser, Ayer & Jozwiak
1325 4th Ave., Ste. 1350, Seattle WA 98101
(206) 386-7755

[31 ELR 20165]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]