Petition for Writ of Certiorari — Bugenig v. Hoopa Valley Tribe
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oupreme Court, Us,
o FILED
O1 900 DEC 1 02003
OFFICE
No. OF THE CLERK
In the
Supreme Court of the United States
Se
ROBERTA BUGENIG,
Petitioner,
V.
HOOPA VALLEY TRIBE; THE HOOPA
VALLEY TRIBAL COUNCIL; THE TRIBAL
COURT OF THE HOOPA VALLEY TRIBAL
RESERVATION; BYRON NELSON, JR., Honorable
Judge of the Hoopa Valley Tribal Court; MERV
GEORGE, Chairman of the Hoopa Valley Tribal Council,
Respondents.
+
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
+
PETITION FOR WRIT OF CERTIORARI
+
JAMES S. BURLING
Counsel of Record
Pacific Legal Foundation
10360 Old Placerville Road,
Suite 100
Sacramento, California 95827
Telephone: (916) 362-2833
Facsimile: (916) 362-2932
Counsel for Petitioner
Oe rE |
QUESTIONS PRESENTED
The Ninth Circuit held that Congress granted to the Hoopa
Valley Indian Tribe regulatory jurisdiction over fee simple
property belonging te nonmembers (including non-Indians)
when it enacted the Hoopa-Yurok Settlement Act of 1988, 25
U.S.C. §§ 1300i-7.
1. When delegating regulatory jurisdiction ¢ver
nonmember owned fee simple property to an Indian tribe, must
Congress describe that delegation in express and unambiguous
language that refers to nonmember owned fee simple property?
2. Does Congress have the authority to delegate
regulatory jurisdiction over fee simple property belonging to a
nonmember to the Hoopa Valley Indian Tribe?
Se
ii
LIST OF ALL PARTIES
Petitioner: Roberta Bugenig.
Respondents: Hoopa Valley Tribe; the MHoopa
Valley Tribe! Council; the Tribal Court of the Hoopa Valley
Tribal Reservation; Byron Nelson, Jr., Honorable Judge of the
Hoopa Valley Tribal Court; Merv George, Chairman of the
Hoopa Valley Tribal Council.
ili
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .........-. cece ee cere eee reece i
LIST OF ALL, PARTIES oc ccvcccccccccccvesesvcvecvoens ii
TABLE OF AUTHORITIES .........cceececcceeceeeees V
PETITION FOR WRIT OF CERTIORARI .............+55. ]
os 6. | 0) | ee nen eee ]
En o's cocccusveseesorcescvcreeccsesevenss 2
CONSTITUTIONAL PROVISIONS AT ISSUE ............ 2
STATEMENT OF THE CASE ..........cceccccecceeeces 2
REASONS FOR GRANTING THE WRIT ...........-+-5-- 8
1. THE COURT BELOW FOUND AN “EXPRESS”
DELEGATION USING STANDARDS EMPLOYED
BY NO OTHER COURT ..........cececececceeces 10
A. The History Behind the Settlement Act Provides
No Support for the Notion That Congress Meant
to Grant the Tribe Jurisdiction over Fee Simple
Property Owned by Non-Indians ............... 1]
B. The Purported Express Congressional
Delegation Is Ambiguous and Overly Reliant
upon a Strained Interpretation of the Tribal
ee edn beutewsedeseeeeeseces 14
C. The Finding of an Express Delegation Is in
Conflict with Decisions of This and Other
Courts Requiring Truly Express and
Unambiguous Language of Delegation .......... 19
D. Assertions of Federal Authority That Impinge
upon State Sovereignty Must Be Strictly
Construed and Not Based upon Ambiguous
Ce ashen es gaucteteeserervesses 22
iV
TABLE OF CONTENTS—Continued
Page
Il. THE NINTH CIRCUIT’S FINDING THAT
CONGRESS HAS CONSTITUTIONAL
AUTHORITY TO GIVE THE TRIBE
REGULATORY JURISDICTION OVER FEE
SIMPLE PROPERTY CONFLICTS WITH
NUMEROUS DECISIONS HOLDING THAT THE
FEDERAL GOVERNMENT LACKS PLENARY
REGULATORY AUTHORITY OVER FEE LANDS
BELONGING TO NON-INDIANS ............0.05: 24
CREE. on So naked be desis oa seve edesepuatesnes 30
Vv <
TABLE OF AUTHORI?f 5
Page
Cases
Arizona Public Service Company v.
Environmental Protection Agency,
211 F.3d 1280 (D.C. Cir. 2000), cert.
denied, sub nom. Michigan v. Environmental
Protection Agency, 121 S. Ct. 1600 (2001) ...... 21-22
Atkinson Trading Company v. Shirley,
Dae Wels Gd, LAE Be GE. BED GEOUE) ct ccccvecevcess 9
Bailess v. Paukune, 344 U.S. 171 (1952) ............. 25
Bugenig v. Hoopa Valley Tribe,
ee Be CE EE odie ovecemecesesdves ]
Bugenig v. Hoopa Valley Tribe,
yo Sw rie fo ot eee rer rrr irre rT l
Bugenig v. Hoopa Valley Tribe,
re ER By EE, Lee | er rr rrr rr er l
Bugenig v. Hoopa Valley Tribe,
pT dt) eee eno ere ]
County of Yakima v. Confederated Tribes and
Bands of Yakima Indians, 502 U.S. 251 (1992) ... 18, 29
Dick v. United States, 208 U.S. 340 (1908) ............ 27
Dillon y. Antler Land Co. of Wyola, 341 F. Supp.
734 (D. Mont. 1972), aff'd, 507 F.2d 940 (9th
Cir. 1974), cert. denied, 421 U.S. 992 (1975)........ 25
Gregory v. Ashcroft, 501 U.S. 452 (1991) .......... 22-23
Karuk Tribe of California v. Ammon,
209 F.3d 1366 (Fed. Cir. 2000), cert.
Se Re ee a a err 12
vi
TABLE OF AUTHORITIES—Continued
Page
Levindale Lead & Zinc Mining Co. v.
CRE, BGT UR Sao CRONE cave cccvcccccessees 25
Matiz v. Arnett, 412 U.S. 481 (1973) .......- scene eee 12
Merrion v. Jicarilla Apache Tribe,
Et BREE ob ub ocivckckseveaveatees 26-27
Moe v. Confederated Salish and Kootenai
TPUNE, SIS Gi CEST cccvecccdcveriieecetts 29
Montana v. United States,
BOP Ue. SOG CIGRTD co cccevevevicses 5-9, 19, 24, 28
Nevada v. Hicks, 121 S. Ct. 2304 (2001) .............. 19
Rice v. Rehner, 463 U.S. 713 (1983) .............. 20, 28
Seymour v. Superintendent,
eis Sade win em aes 20, 29
Short v. United States, 486 F.2d 561 (Ct. Cl.
1973), cert. denied, 416 U.S. 961 (1974) ........ 11-12
Short v. United States,
ee Lae Cais Ga SUED ih eicv ees vcccccienss 11-12
Short v. United States, 719 F.2d 1133 (Fed. Cir.
1983), cert. denied, 467 U.S. 1256 (1984) ....... 11-12
Solid Waste Agency of Northern Cook County v.
United States Corps of Engineers,
S31 VB TOPE Ccks cies dcenk vive ceete ss 23
United States ex rel. Noel v. Moore Mill &
Lumber Co., 313 F.2d 71 (9th Cir. 1963) ........... 26
United States ex rel. Warren v. Ickes,
73 Fie WAC. Sa UU os woh bob he ecevesess 26
United States v. Mazurie, 419 U.S. 544 (1975) ... 20, 27-28
Vii
TABLE OF AUTHORITIES—Continued
Page
United States v. Waller, 243 U.S. 452 (1917) ........-. 25
White Mountain Apache Tribe v. Bracker,
BEE SCE Kd AS EG ee ie cere nceereeesees 24
Constitutions
CR Demet GAT. BG icasek en cccerescewcvecseces 2, 28
po) ee ee ee ere ee 2
ME Pere vuGun dare vaswanenr eee eenereseds he 2
Eo lichens es uabadeaNaehleaeentaveses 2, 15-17
ef err ry re eee ere 17
EA cose c ei ds cadens abedercersonsesven a ta Se
Statutes
TRUS. BUISE code civeccn cevodvscescccecseees 20
EDEN Viiv sesntad sed vedebenendeereceess 20, 28
BP RE UND hb. Sv ck i ncty opted ocacveresss ves 20
y LTS Se er Ere hr rere rer rr Tree tt 8
OE as Fe adn SERA CAs Hd te Rech eeeverdesieees 18
1 Pe eee ee ey er eee PT ee eee te eee 18
ED so uvccwesdservcesvdcccneveteveciese’ 18
DD biviccce ds vevssecectovesstsnbessesiens 18
SEDI ang Fes oa Vober diace eee ep piece de cee sd aes 2
DUET. oc.ceei vnus ees be Us ¥O8% Critweee 2, 10, 14-15
St | eer en Pere r rr. Teer ere ee 15
Viil
TABLE OF AUTHORITIES—Continued
a ED EO LIne
OE PEt Pee Ree ane
WE IIE isos ccccsscscccovduncss
I BN oc oii cnvsvesacurcient
II 5s code cecvvdisenscusnas
oe ERA ars NO Neato
wi cavcdawse cen:
SS aaa aes re pe
st Sidi ake
Alaska Statehood Bill, Pub. L. No. 85-508,
FE OU SOP CSTE eh CWE Sewewevwen stein
Idaho Admission Act, ch. 656, 26 Stat. 215 (1890)
Indian Affairs Act of April 8, 1864,
i Te 5 66 ie RS Es 8
Indian General Allotment Act, 24 Stat.
390 (1887) (current version at
25 U.S.C. § 331, et seg. (2001)) ............
Cal Fa Be CS DOPE ov ccc cccccioses
ix
TABLE OF AUTHORITIES—Continued
Page
Supreme Court Rules
Pate pare ors Peers soe eer ee ee ee ee Lee 2
Miscellaneous
134 Cong. Rec. H9406 (Oct. 3, 1988)
(statement of Rep. Bosco) ......-.. see e cree eee 13
134 Cong. Rec. $13967 (Sept. 30, 1988)
(statement of Sen. Inouye) ..........-.-+ee eee: 13-14
Goldschmidt, Walter R., & Driver, Harold E.,
The Hupa White Deerskin Dance, 35 U. of
Cal. Publications in American Archaeology
& Ethnology 1934-1943 (A.L. Krober ed. 1943) ...... 4
Tribe, Laurence H., American Constitutional
Law (26 od. 1988) 2... cc ccccccccccccesucecvcess 23
PETITION FOR WRIT OF CERTIORARI
Roberta Bugenig respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Ninth Circuit.
+
OPINIONS BELOW
The Opinion of the Ninth Circuit Court of / ppeals, en
banc, in Bugenig v. Hoopa Valley Tribe, is reported at 266 F.3d
1201 (9th Cir. 2001), and is reproduced as Appendix A. The
Ninth Circuit’s order vacating an earlier decision and granting
rehearing en banc is reported at 240 F.3d 1215 (9th Cir. 2001),
and reproduced as Appendix B. The original, now vacated,
decision of the Ninth Circuit Court of Appeals is reported
at 229 F.3d 1210 (9th Cir. 2000), and reproduced as
Appendix C. The final judgment of the United States District
Court, Northern District of California, March 8, 1999, is
unreported and is reproduced as Appendix E. That court’s
amended Order of March 31, 1999, is unreported and
reproduced as Appendix D.
A prior case in this matter was litigated in Tribal Court.
For this Court’s- convenience, the Opinion of the Northwest
Regional Tribal Supreme Court in and for Hoopa Valley,
decided on April 28, 1998, and reported at 25 Indian L. Rep.
6139 (1998), is attached as Appendix F. The Order of the
Hoopa Valley Tribal Court, July 11, 1996, is attached as
Appendix G.
*-
2
JURISDICTION
The final opinion of the United States Court of Appeals
for the Ninth Circuit was issued on September 11, 2001. This
petition is timely filed under Supreme Court Rule 13. This
Court has jurisdiction under 28 U.S.C. § 1254.
+
CONSTITUTIONAL PROVISIONS AT ISSUE
The Indian Commerce Clause, United States Constitution,
Article I, section 8, gives Congress power “[t]o regulate
commerce with foreign nations, and among the several States,
and with the Indian tribes.”
The Hoopa-Yurok Settlement Act of 1988, 25 U.S.C.
§ 1300i-7, states:
The existing govening [sic] documents of the Hoopa
Valley Tribe and the governing body established and
-elected thereunder, as heretofore recognized by the
Secretary, are hereby ratified and confirmed.
Relevant excerpts of the Hoopa-Yurok Settlement Act of
1988, 25 U.S.C. § 1300i, et seq., are reproduced at Appendix H.
The Hoopa Tribal Constitution, the Preamble, Articles I,
Il, Il, and relevant portions of Article IX, are reproduced at
Appendix I.
4—
STATEMENT OF THE CASE
In 1995, Roberta Bugenig purchased 40 acres of fee-
simple land on which she wished to retire. The land was
located within the boundaries of the Hoopa Valley Indian
Reservation, near where her family had lived for nearly 150
years. The land is accessible by and adjacent to a public
highway that Indians and non-Indians traverse freely.
i
3
Mrs. Bugenig is not amember of the Hoopa Valley Indian Tribe
and cannot participate in its government.
So that she could raise enough money to build her
retirement home (and to make room for that home),
Mrs. Bugenig was obliged to cut down some of the second-
growth trees on her land. Her plans were designed to be
consistent with state and county land use policies and practices.
She developed her plans in cooperation with the California
Department of Forestry and the Humboldt County Planning and
Building Department. Throughout the planning process, she
intended only to achieve her modest goal of building a home in
which to live.
‘In July of 1995 Mrs. Bugenig received the necessary
certification from the Humboldt County Planning Division and
a “Less Than 3 Acre Conversion Exemption” from the
California Department of Forestry (CDF). On July 26, 1995,
Mrs. Bugenig, relying on the exemption, began cutting trees on
her land.’ |
Unbeknownst to Mrs. Bugenig, however, the Hoopa
Valley Indian Tribe had adopted a timber management plan on
January 28, 1995 (and ratified that plan on February 2, 1995),
that claimed a permanent buffer zone that prohibited all timber
harvesting activities within one-half mile on either side of the
site of a deer skin dance trail, a trail that begins south of
Mrs. Bugenig’s property near the banks of the Trinity River,
proceeds northward along a public highway, and then proceeds
to a gathering spot to the west of the highway which itself is to
the west of Mrs. Bugenig’s parcel. The dance takes place every
| See Excerpt of Record (ER) at 36, filed with Mrs. Bugenig’s
opening brief to the Ninth Circuit Court of Appeals. For the Court’s
convenience, citations to the trial court record will be placed in
footnotes.
4
other year in this area.? All of Mrs. Bugenig’s property is
located within the buffer zone. Appendix at A-10. Two days
after Mrs. Bugenig began harvesting her trees, the Hoopa
Valley Tribal Council (Council) issued to Mrs. Bugenig a
CEASE AND DESIST NOTICE asserting that ONLY the
Hoopa Valley Tribal Council has the authority to make land use
changes.’ Furthermore, the Council threatened to take criminal
and civil actions against Mrs. Bugenig.* On August 10, 1995,
the Hoopa Valley Tribal Court issued an Order of Preliminary
Injunction restraining her from cutting down any trees on her
property.’ In turn, the Tribe brought other legal proceedings
against Mrs. Bugenig and Mrs. Bugenig objected, claiming that
the Tribe lacked jurisdiction over her property.°
On October 10, 1995, the California Department of
Forestry and Fire Protection sent a letter to Mrs. Bugenig
revoking her conversion exemption.’ In a letter sent the
following week, the department advised her that it was
withhold[ing] judgment on whether or not the tribe
has the authority ‘o impose their zoning ordinances
? United States District Court Docket Entry (DE) at Tab 3, Exh. 6,
Declaration of Byron Nelson; see also Walter R. Goldschmidt &
Harold E. Driver, The Hupa White Deerskin Dance, 35 U. of Cal.
Publications in American Archeology & Ethnology 1934-1943 103,
106 (A.L. Krober ed. 1943).
> ER at 6-7; see also Appendix at A-10.
‘ ER at 6-7.
° ER at 14-15; see also Appendix at A-10 to A-11.
® See, e.g., DE at 21, Tab 1, Tab 16, and DE at 21, Tab 44.
7 DE at 21, Tab 48 at 33-34 (Appendix).
———
5
on non-tribal lands or whether the Department will
enforce such ordinances.®
On July 11, 1996, the tribal trial court issued its final
decision and order, granting judgment in favor of the Hoopa
Valley Tribe, ruling in particular that
Humbolt [sic] County does not have authority
or subject matter jurisdiction within the exterior
boundaries of the Hoopa Valley Reservation to
regulate land use. This jurisdictional authority lies
exclusively with the Hoopa Valley Tribal Council
and membership of the Hoopa Valley Tribe.
Appendix at G-6.
On July 19, 1996, Mrs. Bugenig timely filed her notice of
appeal from the decision and order of the Hoopa Valley Tribal
Court, based in part on the assertion that the Tribal Court was
without jurisdiction to hear the matter.’ Subsequently, the Tribe
placed a lien, which is still in place, on Mrs. Bugenig’s property
in a dispute over the removal of the trees that had been
previously cut.'°
_ The decision of the tribal trial court was affirmed by the
Northwest Regional Tribal Supreme Court in and for Hoopa
Valley on April 28, 1998. See Appendix F. The court ruled
that the Tribe had jurisdiction under the second exception of
Montana vy. United States, 450 U.S. 544 (1981), to the general
* DE at 21, Tab 48 at 35 (Appendix). State law, incidentally,
specifically protects Native American religious resources. Cal. Pub.
Res. Code § 5097.9. By utilizing state resources, the Tribe can (and
did) get the state to put a hold on timber harvesting pending further
analysis.
* DE at 21, Tab 44.
'© ER at 28-29; see also Appendix at A-11.
6
rule that tribes do not have jurisdiction over private non-Indian
owned fee property. Specifically, it held that Mrs. Bugenig’s
timber harvesting activities would threaten the health and
welfare of the Tribe by affecting the sanctity of the location of
the dance. Appendix at F-23. The court did not address the
assertion of tribal jurisdiction alleged to be contained in the
language of the Hoopa-Yurok Settlement Act of 1988
(Settlement Act) (the sole basis of the decision by the Ninth
Circuit below). The court determined, furthermore, that there
was no consensual relationship between Mrs. Bugenig and the
Tribe that would invoke the first exception of Montana.
Appendix at F-23.
Mrs. Bugenig filed her complaint in federal district court
in the present case on September 4, 1998.'' The tribal
defendants filed a motion to dismiss on November 30, 1998.
The district court entered an order dismissing the case on
March 4, 1999. Judgment was entered March 8, 1999.
Appendix E. An amended order was filed March 31, 1999.
Appendix D. The district court below based its decision on its
interpretation of the Settlement Act, an issue not reached by the
tribal appellate court, finding that the language of the statute
served to give the Tribe jurisdiction over Mrs. Bugenig’s
property. Jd. at D-8 to D-9. The court’s decision did not touch
upon the Tribe’s suggestion that the two exceptions in Montana
applied.
A three-judge panel of the Ninth Circuit Court of Appeals
reversed on October 3, 2001. Appendix at C-26. The panel
began by noting: “The fact that nothing in the Settlement Act
itself explicitly confers upon the Tribe jurisdiction to regulate
nonmembers raises serious questions as to how carefully
Congress considered whether it was making any grant of
regulatory authority to the Tribe.” Appendix at C-11. Turning
to the legislative history of the Act, the court found no clear
"! ER at 39-45.
7
indication that Congress had intended to grant to the Tribe
jurisdiction over fee simple property such as Mrs. Bugenig’s:
“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
non-Indians such as Bugenig.” Appendix at C-11. Examining
the words of the Act itself, the court noted that nowhere in the
statute were the usual words or indications that this Court has
always found to be persuasive in determining that there has
been an express delegation. Appendix at C-14 to C-18.
Finding no express delegation the court found no reason to
examine the constitutional question of whether Congress could
have granted the Tribe jurisdiction in this case. Appendix at C-
18 n.5. Finally, the court concluded that none of the Montana
exceptions provided authority for tribal jurisdiction over
Mrs. Bugenig’s property. ©
The Ninth Circuit granted the Tribe’s petition for
rehearing en banc. Appendix B.
A divided en banc panel of the Ninth Circuit affirmed the
district court decision. In words described by three dissenters
as “a marvelous act of interpretation, bordering on
thaumaturgy,” Appendix at A-43 (Fernandez, J., dissenting), the
court held that the Settlement Act delegated to the Tribe
regulatory authority over Mrs. Bugenig’s property. It relied on
language in that Act that Congress “ratified and confirmed” the
Tribal Constitution and thereby adopted language in that Tribal
Constitution, and the local laws enacted pursuant to that
constitution, all of which together allegedly served to extend
tribal jurisdiction to all land within reservation boundaries,
including fee simple property owned by non-Indians. Appendix
A, passim. The court further held that Congress had the
constitutional authority to make such a delegation. Appendix
at A-13 to A-16, A-27 to A-37. The court did not reach the
question of whether tribal jurisdiction over Mrs. Bugenig’s
8
property could be supported by any of the exceptions of
Montana.
Three judges dissented, describing the purported language
of delegation as being too ambiguous and too lost in “the midst -
of a fuliginous cloud of words” for there to be an effective and
express delegation. Appendix at A-38 (Fernandez, J.,
dissenting). Employing a gladitorial metaphor of a warrior with
a net and trident, the dissenting opinion further suggested that
the court should not “decide that by using the constitution’s
unexceptional language the Tribe, like a retiarius, ensnared and
skewered Congress, thereby obtaining exceptional jurisdiction.”
Appendix at A-42 (Fernandez, J., dissenting). The dissenters
further described the tribal “constitution’s bland language as
a power grab over land and peoples not related to the Tribe
itself or to its government.” Jd at A-42 (Fernandez, J.,
dissenting).
+
REASONS FOR GRANTING THE WRIT
It is undisputed that the fee land that is now owned by
Mrs. Bugenig first became private property as a result of the
Indian General Allotment Act, 24 Stat. 390 (1887) (current
version at 25 U.S.C. § 331, et seg. (2001)). ‘The General
Allotment Act, after the passage of a trust period, provided that
patent should issue and then each and every allottee shall have
the benefit of and be subject to the laws, both civil and
criminal, of the State or Territory in which they may reside. 25
U.S.C. § 349. The end result of the Allotment Act was to
diminish tribal jurisdiction over certain non-Indian owned fee
lands. As this Court has made clear, because the intent of the
Allotment Act was to do away with the reservation system, it
was only natural that the non-Indian owners of the allotments
were to be under state, rather than tribal, jurisdiction.
9
It defies common sense to suppose that Congress
would intend that non-Indians purchasing allotted
lands would become subject to tribal jurisdiction
when an avowed purpose of the allotment policy was
the ultimate destruction of tribal government.
Montana, 450 U.S. at 559 n.9; quoted most recently in Atkinson
Trading Company v. Shirley, 532 U.S. 645, 121 S. Ct. 1825,
1830 n.1 (2001). This Court in Montana noted exceptions to
the general rule that tribes lack jurisdiction over fee property
purchased by non-Indians:
But exercise of tribal power beyond what is
necessary to protect tribal self-government or to
control internal relations is inconsistent with the
dependent status of the tribes, and so cannot survive
without express congressional delegation.
450 U.S. at 564 (emphasis added). The opinion further
elaborated the exceptions to the general rule against tribal
jurisdiction:
A tribe may regulate, through taxation, licensing, or
other means, the activities of nonmembers who enter
consensual relationships with the tribe or its
members, through commercial dealing, contracts,
leases, or other arrangements .... A tribe may also
retain inherent power to exercise civil authority over
the conduct of non-Indians on fee lands within its
reservation when that conduct threatens or has some
direct effect on the political integrity, the economic
security, or the health or welfare of the tribe.
450 U.S. at 565-66 (citations omitted).
While the tribal supreme court found tribal jurisdiction
through the political integrity exception, the Ninth Circuit relied
instead upon the finding of an “express congressional
delegation.” However, it did so by relying on ambiguous
10
statutory language that purported to incorporate an ambiguous
Tribal Constitution. This manner of “express” delegation is in
conflict with every other delegation countenanced by Congress
or this Court. The Ninth Circuit also purported to find a
delegation of authority that Congress never had in the first
place, a delegation in conflict with numerous decisions of this
and other courts relating to the extent of federal jurisdiction
over allotted lands on Indian reservations.
This leads to the questions presented to this Court: Did
Congress expressly grant to the Tribe jurisdiction over fee
simple property using language far more ambiguous than the
delegation standards of this Court and a lower court that
examined the issue? And, did Congress actually have authority
under the United States Constitution to grant to the Tribe land
use regulation that had previously been exercised exclusively by
the State of California?
I
THE COURT BELOW FOUND AN
_ “EXPRESS” DELEGATION USING STANDARDS
EMPLOYED BY NO OTHER COURT
The Ninth Circuit’s finding of a delegation to the Hoopa
Valley Indian Tribe of regulatory authority over fee simple land
owned by non-Indians is unprecedented both in terms of the
scope of the delegation, granting unlimited regulatory authority
over fee lands, but also in the manner in which the delegation
is purported to have been effected. As will be shown, there is
not a single word in the Settlement Act itself that discusses such
a delegation of jurisdiction. Instead, the delegation is purported
to exist in the Tribal Constitution that the Settlement Act
“ratified and confirmed.” 25 U.S.C. § 1300i-7. As will be
further shown, the Tribal Constitution is also quite ambiguous,
and there is no clear indication of the unprecedented usurpation
of jurisdiction that the Ninth Circuit reads into that document.
In every other case of delegation, both Congress and this Court
1]
have been very careful to make sure that the language of
delegation is clear and unambiguous. In fact, in every other
case of delegation, Congress has employed explicitly clear
language that expressly refers to patented fee lands. The utter
lack of any such reference in the Settlement Act puts the Ninth
Circuit’s opinion in stark contrast to and in conflict with
numerous holdings of this Court.
A. The History Behind the Settlement Act Provides
No Support for the Notion That Congress Meant
to Grant the Tribe Jurisdiction over Fee Simple
Property Owned by Non-Indians
The Settlement Act does not discuss in terms ambiguous
or otherwise any express delegation of jurisdiction to the Tribe.
Absent any statutory ambiguity, resort to legislative history
should be unnecessary. However, to the extent that a majority
of the en banc court below was able to find an express
delegation of authority contained within the Settlement Act,
there is at least an argument that the language is ambiguous.
Therefore, in order to understand whether the language of the
Settlement Act contains the language of delegation that courts
traditionally have relied upon, it is helpful first to understand
the historical context of the Settlement Act. Prior to the
Settlement Act, no one tribe had exclusive jurisdiction over the
reservation. This fact led to a long and bitter dispute between
members of the Hoopa Valley Tribe and members of other
tribes that lived on the reservation. The problem was that
members of the Hoopa Valley Indian Tribe collected all the
timber revenues from reservation lands, to the exclusion of
members of other tribes who had been lawfully settled upon the
reservation. See, e.g., Short v. United States, 486 F.2d 561, 564
(Ct. Cl. 1973), cert. denied, 416 U.S. 961 (1974) (Short q;
Short v. United States, 661 F.2d 150 (Ct. Cl. 1981) (Short I),
aff'd, 719 F.2d 1133 (Fed. Cir. 1983) (Short III), cert. denied,
12
467 U.S. 1256 (1984). This dispute was not resolved until the
passage of the Settlement Act.”
The history of the reservation, as summarized in the Short
opinions, as well as in Mattz v. Arnett, 412 U.S. 481 (1973),
shows that the core of the reservation (the Square) was first
created in 1864 by the California Superintendent of Indian
Affairs pursuant to powers ratified in the Indian Affairs Act of
April 8, 1864, ch. 48, 13 Stat. 39. Since the reservation was
formed, the Hoopa Valley Indian tribe was only one of many
Indian tribes that occupied the reservation. Short J, 486 F.2d at
565. The Short J court expressly found the Hoopa Indians did
not have exclusive or vested rights in the resources of the
reservation. /d. Nor were the Hoopa Indians the sole aboriginal
occupants of the Square. Jd. at 564.
Unlike the traditional view of Indian reservations, where
resources are considered held in trust for the tribal entity, the
Short courts found that the resources were not held by the
Hoopa Valley Indian tribe, or any other tribe. Instead, these
resources were owned by the individual members of all the
tribes inhabiting the reservation. Short JI, 661 F.2d at 154
(rejecting theory that the Reservation und its resources are tribal
property rather than the common property of the individual
Indians); at 155-56 (noting that it was appropriate that
individual Indians (rather than the tribes) receive payments and
that there was no functioning tribal entity for the Yuroks). In
fact, the Hoopa Valley Tribe was recognized only in 1950,
Short ITI, 719 F.2d at 1136, many years after new allotments on
the reservation had ceased being issued in 1933, Short J, 486
F.2d at 568. As the Hoopa Valley Tribe did not have
jurisdiction over the resources on the reservation it would be
2 Even with the Act, some disputes remain. See, e.g., Karuk Tribe
of California v. Ammon, 209 F.3d 1366 (Fed. Cir. 2000), cert.
denied, 121 S. Ct. 1402 (2001).
13
illogical to presume that it had jurisdiction over fee-simple
property.
It was with this often bitter history in mind that Congress
passed the Settlement Act in order to give the Hoopa Valley
Indian Tribe jurisdiction over the “Square,” the Yuroks
jurisdiction over an “addition” to the reservation, and to help
resolve the status and rights of the many other Indians, who
were not members of either the Hoopa or Yurok tribes, but who
had been settled on the reservation. Congress wanted to ensure
that the Hoopas could govern the Hoopa reservation without the
acrimony and uncertainty caused by the claims brought by the
Yuroks and members of other tribes.'? See 134 Cong. Rec.
S13967 (Sept. 30, 1988) (statement of Sen. Inouye), at §13972:
13 See 134 Cong. Rec. H9406 (Oct. 3, 1988) (statement of Rep.
Bosco), at H9410:
As the Hoopa Tribe began to take advantage of a booming
timber market, however, a dispute arose over the
distribution of revenues from timber sales. This dispute
turned the people against each other. It brought them to
the courtrooms of Eureka, San Francisco, and the U.S.
Supreme Court in a legal battle that has lasted some 25
years.
Sadly, these people are some of the poorest in our
country, suffering unemployment rates of over 60 percent.
The money and energy expended on this protracted legal
battle could better have been spent to strengthen these
tribes and build the schools, health facilities, roads and
other improvements needed by these people.
The legislation recognizes that some Yurok Indians
prefer to live in an organized community and others would
simply want to receive funds held in trust for the tribes.
This legislation will make funds available to the organized
tribes and to individuals who heretofore would r % be
entitled to a distribution of such funds.
14
As aresult of some 25 years of litigation, the Hoopa
Valley Tribe has lost its capacity to govern . . . the
reservation square, and provide those programs it has
so long delivered.
There is absolutely nothing, however, in the legislative history
demonstrating any congressional desire to give either tribe
jurisdiction over fee simple property belonging to non-Indians.
With this history in mind, attention must be turned next to the
language of the purported delegation.
B. The Purported Express Congressional Delegation
Is Ambiguous and Overly Reliant upon a Strained
Interpretation of the Tribal Constitution
The purported delegation reads in its entirety:
The existing govening [sic] documents of the Hoopa
Valley Tribe and the governing body established and
elected thereunder, as heretofore recognized by the
Secretary, are hereby ratified and confirmed.
25 U.S.C. § 1300i-7. This, of course, says nothing on its face
about there being any delegation of authority from the United
States to the Tribe of land-use regulatory authority over fee
simple property. Nevertheless, the Ninth Circuit began its
odyssey of delegation by focusing on the words “ratified and —
confirmed,” finding that these words served to incorporate the
Tribe’s constitution as federal law, and then finding that the
language of the Tribal Constitution unambiguously exerted
jurisdiction over fee simple land belonging to non-Indians.
This delegation is unlike any delegation of congressional
authority previously encountered, and falls far short of the
standards traditionally followed for determining whether there
has been a delegation.
The three dissenters on the en banc panel quoted verbatim
the original panel’s vacated finding that this “ratify and
confirm” language is not an express delegation:
15
The fact that nothing in the Settlement Act
itself explicitly confers upon the Tribe jurisdiction to
regulate nonmembers raises serious questions as to
how carefully Congress considered whether it was
making any grant of regulatory authority to the Tribe.
Moreover, the Settlement Act uses the same “ratified
and confirmed” language to recognize the newly
created Yurok Tribe, 25 U.S.C. § 1300i-8, which
suggests that this 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 consciously made delegation of authority to
the tribes to exercise jurisdiction over nonmembers
Despite this ambiguity with respect to the
Settlement Act as a grant of power over tribal
nonmembers, the district court interpreted § 1300i-7
as a congressional delegation of authority to the
Tribe to exercise such jurisdiction. The district court
reasoned that § 1300i-7’s “ratified and confirmed”
language works to “give[] every clause in the
document being ratified the full force and effect of a
congressional statute.”
Appendix at A-39 to A-40 (Fernandez, J., dissenting),
Appendix at C-11 to C-12.
There being no express delegation within the four comers
of the Settlement Act, the district court and the en banc panel
below focused instead on two articles, Article II and Article
IX, of the “ratified and confirmed” Tribal Constitution as
containing the grant of delegation. These will be taken in turn.
16
Article III states:
The jurisdiction of the Hoopa Valley Tribe shall
extend to all lands within the confines of the Hoopa
Valley Indian Reservation boundaries as established
by Executive Order of June 23, 1876, and to such
other lands as may hereafter be acquired by or for the
Hoopa Valley Indians.
Appendix at I-] to J-2. The court below saw the perfunctory
“all lands” reference as being the sine qua non of the
- delegation. However, this really is not clear at all. Referring to
this section the dissenters noted that
the district court was surely wrong when it
determined that the language in question clearly
conferred jurisdiction over non-Indians on
non-Indian land within the boundaries of the
reservation. There is not a whisper of that in the
language in question; nor is there any reason to think
that Congress divined that intention lurking in the
words. To assume that jurisdiction means a general
plenary jurisdiction over others and that all we need
to do is ruminate on its territorial scope is to beg the
question.
As it is, there is nothing remarkable about a
tribal constitution’s declaration that the reach of
tribal authority will extend to its own boundaries,
and that is all the language at hand declares. That is
a far cry from saying that the tribe will have
unrestricted authority to regulate the use of
non-Indian land within those boundaries, regardless
of the fact that a tribe generally has no such powers.
Appendix at A-41 (Fernandez, J., dissenting). Another reason
why the “all lands” language is inadequate as an express grant
17
of jurisdiction is because the final clause of Article II refers “to
other lands as may hereafter be acquired by or for the Hoopa
Valley Indians.” These “other lands” logically include fee
simple property that belongs to non-Indians such as
Mrs. Bugenig. If that is a logical reading of this part of Article
Ill, then this is anything but an express congressional
delegation.
Second, the panel below found that Articie 1X, section
1(1), of the Tribal Constitution dispositive. That section reads
in relevant part:
Section 1. The Tribal Council shall have the
following powers subject to any limitations imposed
by federal statutes or by the Constitution of the
United States.
(1) To safeguard and promote the peace, safety,
morals and general welfare of the Hoopa Valley
Indians by regulating the conduct of trade and the
use and disposition of property upon the reservation,
provided that any ordinance directly affecting non-
members of the Hoopa Valley Tribe shall be subject
to the approval of the Commissioner of Indian
Affairs or his authorized representative.
Appendix at I-2. The en banc panel found that this section of
its constitution is “unambiguous” and that it “unequivocally”
delegates jurisdiction over nonmembers if that jurisdiction is
claimed in any tribal ordinance. Appendix at A-23. But as the
dissenters and vacated panel decision point out, “that language
appears to do no more than allow for regulation of ‘consensual
commercial dealings between tribal members and
nonmembers.’” Appendix at A-41 n.2 (quoting Appendix at C-
13).
18
The court below overreached when it translated the words
of Article IX, “directly affecting nonmembers,” into a blanket
congressional grant of regulatory jurisdiction over nonmember
activities on non-Indian fee land. This provision could best and
most easily be interpreted to refer to in personam jurisdiction
over non-Indians within the reservation, an interpretation that
would be consistent with the presumption against tribal
regulatory jurisdiction over non-Indian fee lands. See County
of Yakima v. Confederated Tribes and Bands of Yakima
Indians, 502 U.S. 251, 264-65 (1992). Because this section
refers to the nonmembers and not their fee land, the Tribe’s
interpretation is too much of a reach. In short, there is no
showing that Congress understood that it was agreeing to
anything except allowing for Hoopa tribal regulation of
activities (by members and nonmembers) involving Hoopa
reservation lands."* —
'* The court’s expansive reading of the words “ratifies and
confirms” has some potentially significant ramifications for other
congressional acts dealing with Indian Tribes that have employed
similar language. See, e.g., 25 U.S.C. § 1725(b)(1) (ratifying and
confirming the Maine Implementing Act, affecting state jurisdiction
over the Passamaquoddy Tribe and the Penobscot Nation); 25 U.S.C.
§ 941m(e)-(f) (settlement agreement between South Carolina and
Catawaba Tribe “ratified and confirmed,” including ability of State
and Tribe to amend the settlement agreement). See also various
ratifications and confirmations of other tribal settlement agreements
at 25 U.S.C. § 640d (Navajo and Hopi); § 672 (Ute); § 1750b
(Miccosukee); § 1771 (Wampanoag); § 1773 (Puyallup); § 1776b
(Crow); and § 1778b (Torres-Martinez Desert Cahuilla). Similarly,
statehood acts employ such language in ratifying and confirming
state constitutions. See, e.g., Idaho Admission Act, ch. 656, 26 Stat.
215 (1890); Alaska Statehood Bill, Pub. L. No. 85-508, 72 Stat. 339
(1958).
19
C. The Finding of an Express Delegation Is
in Conflict with Decisions of This and
Other Courts Requiring Truly Express
and Unambiguous Language of Delegation
There can be no argument that before the Settlement Act
the State of California had regulatory jurisdiction over fee
simple property on the Hoopa Valley Indian Reservation.
Similarly, there can be no argument that tribes are presumed
not to have regulatory jurisdiction over non-Indian fee lands.
See Montana, 450 U.S. at 565-66. As emphasized by this Court
last term:
Hitherto, the absence of tribal ownership has been
virtually conclusive of the absence of tribal civil
jurisdiction; with one minor exception, we have
never upheld under Montana the extension of tribal
civil authority over nonmembers on non-Indian land.
Nevada v. Hicks, 121 S. Ct. 2304, 2310 (2001).
And, absent a relevant exception of Montana, there must
be a valid congressional delegation of authority in order for the
Tribe to regulate non-Indian fee property. Furthermore, in order
to find that Congress has delegated the power to regulate such
fee lands to tribes, this Court has always required that such an
intent be made in express terms. See, e.g., Montana, 450 U.S.
at 564.”°
The usual and traditional way for Congress to express its
intent to delegate to a tribe regulatory authority over non-Indian
fee property has been to include specific language in the
particular act in question. Thus, when Congress passes a statute
'S Similarly, with respect to attempts to convey navigable waters to
a tribe, this Court warned one “must not infer such a conveyance
‘unless the intention was definitely declared or otherwise made very
plain’ . . . or was rendered ‘in clear and especial words.’” Montana,
450 U.S. at 552 (citations omitted).
20
giving tribes authority to carry out some governmental function
on fee simple lands, Congress expressly states that the statute
applies to all land in a reservation “notwithstanding the
issuance of any patent.” See, e.g., 18 U.S.C. § 1151 (defining
Indian Country in context of tribal and federal criminal
jurisdiction); 23 U.S.C. § 402(i) (jurisdiction of highway safety
programs); 25 U.S.C. § 3902(3)(A) (defining Indian country for
purposes of open dump cleanups on Indian lands); 30 U.S.C.
§ 1291(9) (jurisdiction over surface mining operations); 33
U.S.C. § 1377(h) (defining Indian reservations for possible
treatment as state in Clean Water Act regulation); 42 U.S.C.
§ 7410(0) (defining scope of jurisdiction over tribal air quality
plans pursuant to “tribal ‘implementation plans” in Clean Air
Act). Each one of these statutes contains the express
“notwithstanding the issuance of any patent” language and each
one therefore contains an unambiguous expression of
congressional intent to delegate to the Tribe regulatory authority
over fee simple non-Indian property.
Indeed, in the only cases where this Court has found that
Congress delegated regulatory jurisdiction over fee lands to a
tribe, the “notwithstanding the issuance of any patent” language
was dispositive. Thus, this Court in United States v. Mazurie,
419 U.S. 544, 547 n.3 (1975), and in Rice v. Rehner, 463 U.S.
713, 729 (1983), found congressional delegations to the tribes
(and states) of the federal authority to regulate the sale of liquor
on Indian reservations contained in a combination of 18 U.S.C.
§ 1151 and § 1161, the former of which contains the
“notwithstanding” proviso.
Similarly, in Seymour v. Superintendent, 368 U.S. 351,
353 (1962), this Court noted that the “notwithstanding the
issuance of any patent” language removed any “uncertainty”
over the extent of federal criminal jurisdiction in “Indian
country.”
oe
Since Congress has always employed the “notwithstanding
the issuance of any patent” language in its express delegations,
and since this Court has found express delegations only when
that language has been present, the decision of the Ninth Circuit
is in conflict with the holdings of this Court.
There has been only one other significant case resolving
whether there has been an express delegation of congressional
authority to an Indian tribe. In Arizona Public Service
Company v. Environmental Protection Agency, 211 F.3d
1280 (D.C. Cir. 2000), cert. denied, sub nom. Michigan v.
Environmental Protection Agency, 121 S. Ct. 1600 (2001), the
United States Court of Appeals for the D.C. Circuit found that
Congress had authorized tribal jurisdiction over non-Indian fee
property for purposes of 42 U.S.C. § 7601(d)(2), a provision of
the Clean Air Act. Section 7601(d)(2) allows tribes, under
certain circumstances, to enforce the Clean Air Act within the
boundaries of an Indian reservation. The Court found that
Congress provided an express delegation of federal authority
over fee property despite the absence of the “notwithstanding
the issuance of any patent” language in this subsection. 211
F.3d at 1288. Nevertheless, the court also noted that the
particular “notwithstanding” language was found elsewhere in
the act, at 42.U.S.C. § 7410(0), which deals with tribal
enforcement of “tribal implementation plans” and which cross-
references § 7601(d).” 211 F.3d at 1295.
Judge Ginsburg, however, wrote in dissent that although
there was an express delegation of federal authority (utilizing
the “notwithstanding” language) to the tribes over fee simple
non-Indian land in section 7410(o), that such a delegation could
not be imputed to the more expansive section 7601(d)(2). 211
F.3d at 1302-03. In language that was adopted by the original,
now vacated, Ninth Circuit decision in Bugenig, Judge
Ginsburg found that employment of the “notwithstanding the
issuance of any patent” language was the “gold standard” for
delegations. While congress may certainly express its intent to
22
delegate its authority in other ways, he wrote, it ought to at least
be as clear and unambiguous, rather than an “obscure and
never-before-attempted formulation to accomplish the same
result.” 211 F.3d at 1303.
Nonetheless, unlike the Settlement Act at issue in this
case, at least Congress had employed the “notwithstanding”
proviso somewhere in the Clean Air Act and cross-referenced
that proviso to other provisions of the statute.
D. Assertions of Federal Authority That
Impinge upon State Sovereignty Must
Be Strictly Construed and Not Based
upon Ambiguous Language
Another reason why this Court should grant
Mrs. Bugenig’s petition for writ of certiorari is that the decision
below is inconsistent with this Court’s repeated admonitions
not to find congressional intent that impinges on state
sovereignty unless Congress’ intent is plain. Thus, in Gregory
v. Ashcroft, 501 U.S. 452 (1991), this Court wrote that when
interfering with attributes of state sovereignty,
“it is incumbent upon the federal courts to be certain
of Congress’ intent before finding that federal law
overrides” this balance. We explained recently: “If
Congress intends to alter the ‘usual constitutional
balance between the States and the Federal
Government,’ it must make its intention to do so
‘unmistakably clear in the language of the statute.’
... Congress should make its intention ‘clear and
manifest.’”
501 U.S. at 460 (citations omitted).
Pointedly, this Court called for “special care when
interpreting alleged congressional intrusions into state
sovereignty under the Commerce Clause.” Jd. at 463 n.*. The
same principle should apply with equal force to the Indian
23
Commerce Clause. As shown above, the Settlement Act is, at
best, ambiguous as to whether it demonstrates a congressional
intent to delegate authority to the Tribe. As this Court also
noted: “To give the state-displacing weight of federal law to
mere congressional ambiguity would evade the very procedure
for lawmaking on which Garcia relied to protect states’
interests.” 501 U.S. at 464 (citing Laurence H. Tribe, American
Constitutional Law § 6-25, at 480 (2d ed. 1988)).
More recently, in Solid Waste Agency of Northern Cook
County v. United States Corps of Engineers, 531 U.S. 159
(2001), this Court determined that ambiguous language in the
Clean Water Act did not give the Corps jurisdiction over
isolated wetlands. This Court noted that the “(rjegulation of
land use [is] a function traditionally performed by local
governments,” 531 U.S. at 174 (citation omitted), and refused
to acquiesce to an administrative interpretation of a statute that
impacted a local government function; especially when that
very statute expressed an intent not to interfere with “the
primary responsibilities and rights of States . . . to plan the
development and use . . . of land and water resources.” Id.
(quoting 33 U.S.C. § 1251(b)).
The decision of the court below conflicts with this Court’s
wariness to find congressional intrusions upon state sovereignty
and land use planning prerogatives.
24
I
THE NINTH CIRCUIT’S FINDING
THAT CONGRESS HAS CONSTITUTIONAL
AUTHORITY TO GIVE THE TRIBE
REGULATORY JURISDICTION OVER FEE
SIMPLE PROPERTY CONFLICTS WITH
NUMEROUS DECISIONS HOLDING THAT
THE FEDERAL GOVERNMENT LACKS
PLENARY REGULATORY AUTHORITY OVER
FEE LANDS BELONGING TO NON-INDIANS
Even if Congress had expressed an intent to grant the
Tribe jurisdiction over fee simple property, the question
remains whether Congress had the power to do so. The
problem here is that once lands were allotted, they became
subject to state regulatory jurisdiction in derogation of tribal
and federal control. The Ninth Circuit suggests, however, that
the federal government retains “plenary” authority over the
reservations and therefore can delegate its plenary authority to
the tribes. Appendix at A-28 to A-32.
The term “plenary” may be an accurate enough description
of the federal government’s power to regulate tribal relations
and the reservation land that remains in trust for the Indian
tribes. See, e.g., White Mountain Apache Tribe v. Bracker, 448
U.S. 136, 145-46 (1980). But there is no authority for the
proposition that the federal government retains any sort of
plenary regulatory authority over nonmember fee land. Instead,
the court below infers, incredibly, such authority from Montana
because that case recognized that the tribes might, in
exceptional circumstances, have jurisdiction under the
exceptions of that case. Appendix at A-30. This not only turns
Montana on its head, but it is in conflict with virtually every
case that has examined the extent of federal jurisdiction over
allotted lands—including cases from the Ninth Circuit.
Numerous decisions of several courts have held that once
a patent is issued for an allotment the trust relationship between
25
the federal government and the owner of the fee ends. For
example, in an opinion affirmed by the Ninth Circuit, the
District of Montana held:
The issuance of the fee patent had a broader effect
than merely to free plaintiff to sell her land—it freed
the United States from its trustee duties and altered
the relationship of the land and plaintiff to the State
of Montana.
Dillon v. Antler Land Co. of Wyola, 341 F. Supp. 734, 741 (D.
Mont. 1972), aff'd, 507 F.2d 940 (9th Cir. 1974), cert. denied,
421 U.S. 992 (1975).
In Levindale Lead & Zinc Mining Co. v. Coleman, 241
U.S. 432, 438 (1916), this Court noted:
We find no indication of an intent that they [federal
restrictions on trust land] should apply to lands, or an
interest in lands, which had come lawfully into the
ownership of white men who were non-members of
the tribe.
Cited with approval in Bailess v. Paukune, 344 U.S. 171, 173
(1952).
Similarly, this Court found: “As to them [patented
allotments] the Government has no further interest in or control
over the lands.” United States v. Waller, 243 U.S. 452, 463
(1917). Continuing, the Court wrote:
With those restrictions entirely removed and the fee
simple patent issued it would seem that the situation
was one in which all questions pertaining to the
disposal of the lands naturally would fall within the
scope and operation of the laws of the State.
243 U.S. at 463 (emphasis added).
26
The District of Columbia Circuit has noted that once
allotted lands are patented the federal supervision ceases:
[T]he supervision of the Secretary over the royalties
collected under the lease automatically ceased with
the removal of the restrictions which occurred on...
the termination of the special estate.
United States ex rel. Warren v. Ickes, 73 F.2d 844, 847 (D.C.
Cir. 1934), Continuing, the court held:
On removal of the restrictions the owner of the land
and the funds was at full liberty to use, dispose of,
and contract with relation to them in his or her
individual capacity, without reference to approval or
disapproval of the Secretary of the Interior, subject
only to approval of the court of competent
jurisdiction, in this instance the county court of
Hughes county, Okl.
Id. at 848 (emphasis added). Cited with approval in United
States ex rel. Noel v. Moore Mill & Lumber Co., 313 F.2d 71,
73 (9th Cir. 1963).
In sum, these cases demonstrate that once a fee patent
issued on these allotted lands, the federal government had
divested itself of direct (or plenary) regulatory oversight over
these properties.
Nor is the Indian Commerce Clause a carte blanche for
federal or tribal jurisdiction. For example, in Merrion v.
Jicarilla Apache Tribe, 455 U.S. 130, 153-54 (1982), the Court
held:
To date, however, this Court has relied on the
Indian Commerce Clause as a shield to protect
Indian tribes from state and local interference, and
has not relied on the Clause to authorize tribal
27
regulation of commerce without any constitutional
restraints.
Congress no more has plenary land use regulatory authority
over fee simple non-Indian owned land on Indian reservations
deriving from the Indian Commerce Clause than it has plenary
land use regulatory authority over fee simple non-Indian owned
land outside the reservation pursuant to the (ordinary)
Commerce Clause. The court below is in conflict with this
great weight of authority.
The Ninth Circuit is also in error when it relies on liquor
cases such as Mazurie in support of the notion that the federal
government retains land use authority over fee simple property
owned by non-Indians. See Appendix at A-30. That is because
the very activity regulated, liquor sales to Indians, implicates
actual commerce with Indians rather than an activity with
limited impact on tribal members or tribal governments.
Indeed, courts have long upheld restrictions on liquor sales
from allotted fee property. In Dick v. United States, 208 U.S.
340, 354 (1908), this Court explained:
[Tt was necessary that the Indians, remaining on the
unallotted and retained lands, should be protected
against the pernicious influences that would come
from having the allotted lands used by citizens of the
United States as a storehouse for intoxicants. Only
the authority of the United States could have
adequately controlled the conduct of such citizens.
If intoxicants could be kept upon the lands of the
allottees in severalty, it is easy to perceive what
injury would be done to the Indians living on the
other lands, who, in order to obtain intoxicating
liquor, could go regularly or frequently to the places
near by, on some allotted lands, where intoxicants
were stored for sale or exchange.
Lee ee a ees eNO RE PO oh RENTON LINEN Cele ERIS oF oN TE SESE
28
In contrast to local land use regulation, the ability to
regulate the sale of liquor within Indian Country is squarely
within the ambit of the Indian Commerce Clause. Liquor sales
within Indian Country were banned at least since 1832, and
lesser bans were effected during the Colonial Era. Rice v.
Rehner, 463 U.S. at 722. There is nothing in the terms of the
Allotment Act that served to rescind the long-standing
prohibition against liquor sales in Indian Country. The
regulation of liquor sales was delegated to Indian Tribes in
1953. See 18 U.S.C. § 1161, United States v. Mazurie, 419
U.S. at 547." In Mazurie, the Court upheld this delegation,
finding first that Congress had the power to regulate liquor sales
in Indian Country and second that it could delegate this power
to Indian tribes."”
Mazurie, however, does not stand for the blanket
proposition that Congress can take jurisdiction over regulatory
activities that it never had and delegate that authority to a tribe.
The regulation of activities on private fee property that do not
involve commerce with Indians is not subject to Congress’
authority under Article 1, section 8, unless either of the
Montana exceptions exist. As noted, the court below did not
rely on a Montana exception for its holding. Because Congress
has no inherent power to assert land use regulation over
'© Because the 1953 act required conformance with state law, the
regulation of liquor in Indian Country can best be described as
concurrent jurisdiction. Rice, 463 U.S. at 722-23. The concept of
concurrent jurisdiction is not at issue in this case as the Tribe asserts
that only it has regulatory jurisdiction over Mrs. Bugenig’s property.
Appendix at G-6. Furthermore, there is no authority for finding that
prohibitory land use regulation is amenable to concurrent
jurisdiction.
'” To be precise, this Court upheld the federal enforcement of federal
law that incorporated a tribal liquor regulation.
29
Mrs. Bugenig’s property, it cannot delegate that power to the
Tribe."*
To the extent that the court below relies on cases involving
federal jurisdiction over crimes committed by non-Indians on
tribal and allotted lands, see, e.g., Seymour v. Superintendent,
Appendix at A-30, the court confuses in personam jurisdiction
over non-Indians who happen to be within Indian Country with
in rem jurisdiction over activities on fee simple property. This
Court has made the distinction plain. In County of Yakima v.
Confederated Tribes and Bands of Yakima Indians, 502 US.
251, this Court was confronted with the question of whether the
County could impose certain real estate taxes on fee lands
within the Yakima reservation. The Tribe argued, citing Moe
v. Confederated Salish and Kootenai Tribes, 425 U.S. 463
(1976), that the Allotment Act had essentially been repealed and
that any state assertion of jurisdiction over fee lands was
unlawful. This Court disagreed. When looking at the entirety
of the Allotment Act, this Court concluded that because
“Yakima County’ s assertion of jurisdiction over reservation fee-
patented land . . . is in rem rather than in personam, it is
assuredly not Moe-condemned, and it is not impracticable
either.” Jd. at 264-65. The Court therefore found that the
county could impose certain taxes over all fee lands—owned by
Indians and non-Indians alike. In other words, cases like
Seymour that provide federal in personam jurisdiction over non-
Indians acting within Indian country do not diminish the weight
of authority against finding any federal authority over land use
on fee simple property. |
18 To the extent that Congress has delegated to tribes regulatory
authority in the context of clean air and clean water legislation, such
a delegation would be permissible if Congress asserted appropriate
Commerce Clause authority over all activities that significantly
affect clean air and clean water.
30
Thus, the federal government’s power over activities on
allotted lands is limited to those powers enumerated in the
Constitution; this has never been held to include the police
power of general land use regulation over private property.
That leaves the State of California as the only entity with
appropriate regulatory jurisdiction over timber harvesting
activities on Mrs. Bugenig’s property. The decision of the
Ninth Circuit, therefore, is in conflict with the decisions of this
and the lower federal courts.
4-
CONCLUSION
The petition for writ of certiorari should be granted.
DATED: December, 2001.
Respectfully submitted,
JAMES S. BURLING
Counsel of Record
Pacific Legal Foundation
10360 Old Placerville Road,
Suite 100
Sacramento, California 95827
Telephone: (916) 362-2833
Facsimile: (916) 362-2932
Counsel for Petitioner
i
TABLE OF CONTENTS
Opinion from the United States Court of Appeals for the
Ninth Circuit (September 11, 2001)
Order from the United States Court of Appeals for the
Ninth Circuit (February 28, 2001)
Opinion from the United States Court of Appeals for the
Ninth Circuit (October 3, 2000)
Amended Order Granting Defendant's Motion to Dismiss
and Denying Plaintiff s Motion to Strike (March 31, 1999)
Judgment from the United States District Court for the
Northern District of California (March 8, 1999)
Decision from the Northwest Regional Tribal Supreme
Court in and for Hoopa Valley (April 28, 1998)
Decision and Order from the Hoopa Valley Tribal Court,
Hoopa California (July 11, 1996)
Excerpts from 25 U.S.C. § 1300i, ef seq.
Excerpts from the Constitution and Bylaws of the Hoopa
Valley Tribe, Hoopa Valley Indian Reservation (Amended
June 18, 1996)
Decision of Hoopa Valley Tribal Council (January 28,
1995)
= =
a see i a rs
i i te i a Ne eee
a; Sa
Appendix A-1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTA BUGENIG,
Plaintiff-Appellant,
Vv.
HOOPA VALLEY TRIBE; No. 99-15654
THE HOOPA VALLEY
TRIBAL COUNCIL; THE D.C. No.
TRIBAL COURT OF THE CV-98-03409-CW
HOOPA VALLEY TRIBAL
RESERVATION; OPINION
HONORABLE BYRON
NELSON, JR., Judge of the
Hoopa Valley Tribal Court;
MERV GEORGE, Chairman
of the Hoopa Valley Tribal Council,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted
July 18, 2000—Seattle, Washington
Opinion Filed October 3, 2000
Rehearing En Banc Granted February 28, 2001
Argued and Submitted
June 19, 2001—San Francisco, California
Filed September 11, 2001
Appendix A-2
Before: Mary M. Schroeder, Chief Judge, and Procter Hug, Jr.,
Ferdinand F. Fernandez, Thomas G. Nelson, Andrew J.
Kleinfeld, Barry G. Silverman, Susan P. Graber, M. Margaret
McKeown, Kim McLane Wardlaw, Richard A. Paez, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Fernandez
COUNSEL
James S. Burling, Pacific Legal Foundation, Sacramento,
California, for the plaintiff-appellant.
Thomas P. Schlosser and K. Allison McGaw, Morisset,
Schlosser, Ayer & Jozwiak, Seattle, Washington, for the
defendants-appellees.
- Anne R. Traum, Appellate Section, Environment & Natural
Resources Division, U.S. Department of Justice, Washington,
D.C.; and Michael D. Beach, Faegre & Benson LLP,
Minneapolis, Minnesota, for the amici curiae.
OPINION
GRABER, Circuit Judge:
The issue for decision is whether the Hoopa Valley Indian Tribe
(Tribe) has authority to regulate logging by a non-Indian on fee
land that she owns, located wholly within the borders of the
Tribe’s Reservation, in order to protect tribal lands of cultural
and historic significance. The district court held that Congress
expressly delegated such authority to the Tribe. We agree, and
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We begin with a brief overview of the historical context in
which the present question arises.
Appendix A-3
A. Establishment of the Reservation
In the middle of the Nineteenth Century, numerous conflicts
between White settlers and Native Americans in
northern California. As California grew, due in part to the
discovery of gold, clashes between the White settlers and the
tribes increased in frequency and severity, usually to the
detriment of the Native American populations. In response,
Congress determined that “the best policy was to set aside small
tracts of land in the new state for the tribes,” in order to protect
them from the worst effects of settlement. See Partitioning
Certain Reservation Lands Between the Hoopa Valley Tribe
and the Yurok Indians, to Clarify the Use of Tribal Timber
Proceeds, and for Other Purposes, S. Rep. No. 100-564, at 4
(1988) (Senate Report). In accordance with that policy,
Congress enacted legislation authorizing the President to
establish four Indian reservations in California. Act of April 8,
1864, 13 Stat. 39, er seq.
Pursuant to the 1864 Act, President Lincoln appointed Austin
Wiley as Superintendent of Indian Affairs for the State of
California. Wiley then issued a proclamation, which was
subject to the approval of the President, establishing the Hoopa
Valley Reservation on the Trinity River in Klamath County,
California. Short v. United States, 486 F.2d 561, 563 n.1 (Ct.
Cl. 1973) (quoting text of proclamation); see also, generally
Byron Nelson, Jr., Our Home Forever: A Hupa Tribal History
(1978) (providing a detailed history of the Hupa Tribe). The
Reservation extended six miles on either side of a twelve-mile
stretch of the Trinity River, up to the junction of the Trinity and
the Klamath Rivers. The “Square,” the common name of the
Reservation, did not garner presidential authorization until
1876, when President Grant issued an executive order
approving Wiley’s action. Short, 486 F.2d at 563 n.3. As
defined by President Gram, the Square consisted of 89,572.43
acres on an area of land populated primarily by the Hoopa
Valley Tribe. Jd.; Senate Report at 5-6.
Appendix A-4
Fifteen years later, in 1891, President Harrison issued an
executive order enlarging the Square by adding a tract of land
one mile wide on each side of the Klamath River, extending to
the Pacific Ocean. See generally Mattz v. Arnett, 412 U.S. 481,
485-94 (1973) (providing a detailed history of the Klamath
River Reservation). The 1891 order created a single reservation
by joining the Square with the Klamath River Reservation,
which was populated mainly by the Yurok Indians but was not
officially recognized as a reservation. The original Klamath
River Reservation became known as the “Extension” or
“Addition.” ;
B. Congress Changes Course: Allotment and Reorganization
Contemporaneously with the events just described, Congress
began to rethink its policy toward Native Americans. Instead
of encouraging communalism and separatism through land
grants to the tribes, Congress decided to encourage individual
land ownership and, hopefully, eventual assimilation into the
larger society. Solem v. Bartlett, 465 U.S. 463, 466-67 (1984).
With that new goal in mind, in 1887 Congress passed the Indian
General Allotment Act, 24 Stat. 388, codified at 25 U.S.C.
§ 331 (1887). That Act
permitted the President to make allotments of
reservation lands to resident Indians and, with tribal
consent, to sell surplus lands. Its policy was to
continue the reservation system and the trust status
of Indian lands, but to allot tracts to individual
Indians for agriculture and grazing. When all the
lands had been allotted and the trust expired, the
reservation could be abolished. Unallotted lands
were made available to non-Indians with the
purpose, in part, of promoting interaction between
the races and of encouraging Indians to adopt white
ways.
Matiz, 412 U.S. at 496.
| Appendix A-5
The allotment policy did not have its desired effect; that is, in
many respects it did not benefit Native Americans. Philip P.
Frickey, A Common Law for our Age of Colonialism: The
Judicial Divestiture of Indian Tribal Authority over
Nonmembers, 109 Yale L.J. 1, 14-15 (1999). One result of
allotment was that large swaths of reservation land were lost
from Indian control altogether, due to sales and tax
foreclosures. Congress recognized this problem, so it reversed
course and passed the Indian Reorganization Act (IRA) in 1934,
25 U.S.C. 461-479), in which it proclaimed that “no land of any
Indian reservation . . . shall be allotted in severalty to any
Indian.” 25 U.S.C. § 461. The IRA was an “attempt to
encourage economic development, self-determination, cultural
plurality, and the revival of tribalism.” Felix S. Cohen,
Handbook of Federal Indian Law 147 (1982 ed.).
Section 16 of the IRA, 25 U.S.C. § 476, gave each Indian tribe
“the right to organize for its common welfare, and... adopt an
priate constitution and bylaws,” which were to be
approved by the Secretary of the Interior (Secretary). The Tribe
did so and, in 1952, the Secretary approved its constitution and
bylaws.
Although the IRA was Congress’ attempt to reduce the negative
effects of allotment, Congress did not try “to undo the dramatic
effects of the allotment years on the ownership of former Indian
lands. It neither imposed restraints on the ability of Indian
allottees to alienate or encumber their fee-patented lands nor
impaired the rights of those non-Indians who had acquired
title.” County of Yakima v. Confederated Tribes & Bands of the
Yakima Indian Nation, 502 U.S. 251, 255 (1992). Thus, the
policy of allotment shriveled some reservations; much property
that once was under Indian control was sold off to non-Indians.
Cohen at 137-38.
The Square emerged from this period mostly, although not
completely, unscathed. That outcome was due, in part, to the
Appendix A-6
government’s unwillingness to commit to wide-scale allotment
on the Hoopa Valley Reservation. Nelson at 153-58, 195-96.
The court below, the Northwest Regional Tribal Supreme Court
for the Hoopa Valley Tribal Court of Appeals, found that less
than one percent of the Square’s approximately 90,000 acres is
presently owned by non-Indians,' Bugenig v. Hoopa Valley
Tribe, No. A-95-020, 25 Indian L. Rep. 6139, 6141 (Apr. 23,
1998). This one percent includes the land that now is owned by
Plaintiff Roberta Bugenig and is at issue in this case.’
C. The Settlement Act
Members of at least four different Native American tribes lived
within the boundaries of the Hoopa Valley Reservation. Senate
Report at 6. However, neither the 1864 congressional act nor
the 1876 or 1891 executive orders, by their terms, granted any
governing rights to any particular tribe. Short, 486 F.2d at 568.
Despite that omission, throughout the Twentieth Century, the
Bureau of Indian Affairs (BIA) governed the Reservation as if
the Square were a reservation for the Hoopas and as if the
' Facts found by a tribal court are given deference unless they are
“clearly erroneous.” FMC v. Shoshone-Bannock Tribes, 905 F.2d
1311, 1313 (9th Cir. 1990). The record contains a map showing that
2.8 percent of the Reservation is held in fee by “Indian and
non-Indian owners,” but it does not distinguish between the two.
Plaintiff presented no evidence to contradict the tribal court’s
finding. Accordingly, we defer to the tribal court's finding.
? The tribal court found that Plaintiff's property was allotted
originally to members of the Hoopa Valley Tribe under the General
Allotment Act. A twenty-acre portion, held in trust for Mae Wallace
Baker, was converted to a fee simple patent in 1947, while another
parcel, held in trust for Robert Pratt, was sold out of trust status in
1958 to Don H. Gould. Those parcels then became the property of
a California Limited Partnership called the Gould Family
Partnership, which sold them to Plaintiff in 1995. 25 Indian L. Rep.
at 6141.
Appendix A-7
Extension were a reservation for the Yuroks, Senate Report at
7. That distinction became important, because the Square was
a source of substantial revenues from the sale of commercial
timber, all of which was being divided among the Hoopas.
Short, 486 F.2d at 562.
Not surprisingly, the Yuroks were dissatisfied with those
financial arrangements. In 1963, they sued the Secretary of the
Interior, challenging his decision to exclude them from sharing
in the revenue from the harvest of timber grown in the Square.
Ten years later, the Court of Claims agreed with the Yuroks’
position. Jd. at 561. The Court of Claims held that the
executive orders and congressional acts described above
established a single reservation for the benefit of all the Indians
who were living within its boundaries. The federal acts did not
vest in any particular tribe rights to the Reservation’s natural
resources, at least not to the exclusion of any other tribe that
was living in the Hoopa Valley. Jd. at 567-68. Therefore, the
Court of Claims concluded that all the “Indians of the
reservation” were entitled to the proceeds from the sale of the
Square’s natural resources. /d. at 568.
After Short was decided, several Yuroks filed another action
against the BIA and the Hoopa Tribe, alleging that those
defendants had “violated their rights to participate in
reservation administration and to benefit from the reservation’s
~ resources.” Puzz v. United States, No. C80-2908-THE, 1988
WL 188462, at *1 (N.D. Cal. Apr. 8, 1988), order vacated
Dec. 21, 1988 (dismissing as moot after passage of the
Settlement Act). The crux of the Yuroks’ complaint was that,
although several tribes resided in the Hoopa Valley
Reservation, only one tribe, the Hoopas, was allowed to
administer it. As noted, the Hoopas had formed a tribal
government in which non-Hoopa Indians were ineligible to
participate. Id.
Appendix A-8
The district court agreed that the executive orders and
congressional acts did not grant any territorial or political rights
to the Hoopa Valley Tribe to the exclusion of other Indians
living on the Reservation. /d. at *3. The court ordered the BIA
to “exercise supervisory power over reservation administration,
resource management, and spending of reservation funds, to
ensure that all Indians receive the use and benefit of the
reservation on an equal basis.” Jd. at *10.
Congress entered the fray 1988 with the Hoopa-Yurok
Settlement Act (“Settlement Act”). a 6 Uk.
§§ 1300i-1300i-11. In the Settlement Act, Congress sought to
establish a “fair and equitable settlement of the dispute relating
to the ownership and management of the Hoopa Valley
Reservation.” Senate Report at 14. Congress did so by
partitioning the Reservation. The Square became the Hoopa
Valley Reservation, with the “unallotted trust land and assets
. .. held in trust by the United States for the benefit of the
Hoopa Valley Tribe,” while the Extension became the Yurok
Reservation, with a similar trust arrangement for the Yurok
Tribe. 25 U.S.C. § 1300i-1(b) & (c).
Congress also established a Settlement Fund and authorized the
Secretary to prepare a roster of all persons who could be
considered “Indian[s] of the Reservation” as discussed by the
Court of Claims in Short. 25 U.S.C. §§ 1300i-3 and 1300i-4.
Moreover, as part of its plan to define the rights of the parties
involved in the Settlement Act, Congress stated:
The existing govening [sic] documents of the Hoopa
Valley Tribe and the governing body established and
elected thereunder, as heretofore recognized by the
Secretary, are hereby ratified and confirmed.
25 U.S.C. § 1300-7.
Congress provided that the partition of the Reservation, and the
ratification and confirmation of the Hoopa Valley Tribe’s
Appendix A-9
governing documents, were contingent on the Tribe’s adopting
a resolution that (i) waived any claim that the Tribe otherwise
might have against the United States arising out of the
Settlement Act, and (ii) consented to the establishment of the
Settlement Fund. 25 U.S.C. § 1300i-l(a)(2)(A). The resolution
had to be reviewed by the Secretary and published in the
Federal Register, both of which occurred. 53 Fed. Reg. 49361
(Dec. 7, 1988).
D. The Present Dispute
Article IX of the Tribe’s Constitution provides that the
governing body of the Tribe is the Hoopa Valley Business
Council (Council). The jurisdiction of the Tribe is set forth in
Article Ill: “The jurisdiction of the Hoopa Valley Tribe shall
extend to all lands within the confines of the Hoopa Valley
Reservation boundaries . . . and to such other lands as may
hereafter be acquired by or for the Hoopa Valley Indians.” One
of the Council’s enumerated powers, found in Article IX,
section (1)(]), is to
safeguard and promote the peace, safety, morals, and
general welfare of the Hoopa Valley Indians by
regulating the conduct of trade and the use and
disposition of property upon the reservation,
provided that any ordinance directly affecting
non-members of the Hoopa Valley Tribe shall be
subject to the approval of the Commissioner of
Indian Affairs ....
On January 28, 1995, pursuant to those constitutional
provisions, and after a public notice and period for public
comment, the Council adopted a timber-harvesting plan. The
plan included a mitigation measure, adopted after consultation
with the BIA, that was designed to protect certain sites of
cultural significance to the Tribe. The plan established a
one-half-mile buffer zone, where no timber could be harvested,
around the White Deerskin Dance Ground. The White
Appendix A-10
Deerskin Dance Ground is located on a trail that winds through
the Reservation, and on a portion of the Reservation called Bald
Hill. The prohibition against harvesting timber applied to
“tribal trust land, trust allotments, and fee land within the 4
mile buffer.” Decision of Hoopa Valley Tribal Council:
Alternative for FY 1995 Timber Sale Program (Jan. 28, 1995).
The parties dispute somewhat the religious centrality of the
White Deerskin Dance, although they agree that it is of
significant historical and cultural importance to the Tribe. The
Tribe describes the dance as “a world renewal dance.” The
Tribe also asserts that the Bald Hill dance site “is the most
important dance site of . . . all dances that the Tribe has....
The site is very ancient. There’s scientific evidence that
indicates that it could be one of the oldest dance sites, oldest
ceremonies in the country.” Bugenig, 25 Indian L. Rep. at
6139.
Shortly after the Council passed its timber-harvesting plan,
Plaintiff purchased her property, which is located on Bald Hill
within the buffer zone. Plaintiff applied to the California
Department of Forestry and the County of Humboldt for a
“timberland conversion” to convert approximately 2.5 acres of
her land from timberland to pasture. The state granted the
permit. Plaintiff then applied to the Tribe for a permit to haul
logs over Reservation land. The Tribe denied the request.
Nevertheless, Plaintiff sent the Tribe a check to cover the
hauling fee, but the Tribe returned it to her. The Tribe also
included a letter that explained the Tribe’s position that, within
the Square, “ONLY the Hoopa Valley Tribal Council has the
authority to make land use changes.”
Undeterred, Plaintiff began clearing timber, which she
eventually hauled off her land. The Hoopa Valley Tribal Court
issued a temporary restraining order and a notice of hearing.
After the hearing, which Plaintiff declined to attend, the court
issued a preliminary injunction enjoining her “from carrying out
Appendix A-11
any timber operations” within the buffer zone. Shortly
thereafter, the state revoked Plaintiff's logging permit, stating
that “no timber operations are allowed on significant historical
or archaeological sites [defined as ] sites that have significant
or religious importance to California Indians.”
After another hearing, the Tribal Court held that the Tribe “has
the power and authority to define areas of sacred significance
and, through establishment of the buffer no-cut zone in the Bald
Hill area, has exercised that power.” Hoopa Valley Tribe v.
Bugenig, C-95-020, 25 Indian L. Rep. 6137, 6138 (July 11,
1996). In support of its decision, the Tribal Court cited
Montana v. United States, 450 U.S. 544 (1981). The Tribal
Court then found that Plaintiff had acted with “blatant disregard
of tribal law.” Bugenig, 25 Indian L. Rep. at 6138.
Accordingly, the court issued a permanent injunction, which
barred Plaintiff's logging activities in the buffer zone and
ordered Plaintiff to undertake certain remedial measures
respecting the trees that she already had felled. Id.
The injunction was affirmed on appeal by the Tribal Court of
Appeals. That court held that the Tribe had acted pursuant to
its inherent authority to regulate non-members’ land in certain
circumstances, and also pursuant to the express authority
delegated to it by Congress in the Settlement Act. Plaintiff did
not comply with the injunction. On October 11, 1996, the
Tribal Court held her in civil contempt and ordered her to pay
a sanction of $100.
Plaintiff then filed a complaint in the Northern District of
California, seeking declaratory and injunctive relief. She
argued that, because she is a non-Indian who owns her land in
fee simple, neither the Tribe nor the tribal courts have
regulatory or subject-matter jurisdiction over her land. The
district court disagreed, holding that Congress, in the Settlement
Act, had delegated authority to the Tribe to regulate all the
lands within the Square, regardless of ownership.
Appendix A-12
Plaintiff filed this timely appeal.
STANDARD OF REVIEW
We review de novo a district court’s decision concerning the
scope of a tribe’s authority to regulate matters affecting
non-Indians. Ariz. Pub. Serv. Co. v. Aspaas, 77 F.3d 1128,
1132 (9th Cir. 1996). Additionally, the question whether
Congress delegated regulatory jurisdiction to the Tribe in the
Settlement Act involves the interpretation of a federal statute,
which we likewise review de novo. United States v. Fiorillo,
186 F.3d 1136, 1146 (9th Cir. 1999), cert. denied, 528 U.S.
1142 (2000).
DISCUSSION
A. The Analytical Framework
At the outset, it bears repeating that certain important facts are
undisputed: (1) The Square was created pursuant to an 1864
congressional act and an 1876 executive order; (2) the land that
Plaintiff bought had become private property as a result of the
operation of the 1887 General Allotment Act; and (3) in 1988,
Congress partitioned the Hoopa Valley Reservation and ratified
and confirmed the Tribe’s governing documents.
Those facts are noteworthy because the Supreme Court-has
ruled that, after allotted land is conveyed to a non-Indian
pursuant to the General Allotment Act, the Indian tribe loses
“the right of absolute use and occupation of lands so conveyed”
and no longer has “the incidental power to regulate the use of
the lands by non-Indians.” South Dakota v. Bourland, 508
U.S. 679, 688 (1993). The Court has observed that, although
Congress eventually repudiated the policy behind the General
Allotment Act, “‘it defie[s] common sense to suppose that
Congress would intend that non-Indians purchasing allotted
lands would become subject to tribal jurisdiction.’” Atkinson
Trading Co. v. Shirley, 121 S. Ct. 1825, 1830 n.1 (2001)
(quoting Montana, 450 U.S. at 559 n.9).
Appendix A-13
This presumption against tribal jurisdiction over fee land owned
by non-Indians within reservation boundaries is not absolute,
however. The Supreme Court has set out three “limited
exceptions” to the general rule. Jd. at 1828-29. First, a tribe
can regulate non-members on non-Indian fee land that is within
a reservation if that power is delegated to the tribe by Congress.
Id. at 1830; United States v. Mazurie, 419 U.S. 544, 553-54
(1975). The other two exceptions come from an Indian tribe’s
retained, inherent sovereignty to (a) “regulate, through taxation,
licensing, or other means, the activities of nonmembers who
enter consensual relationships with the tribe or its members,
through commercial dealing, contracts, leases, or other
arrangements” and to (b) “exercise civil authority over the
conduct of non-Indians on fee lands within its reservation when
that conduct threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of the
tribe.” Montana, 450 U.S. at 565-66; see also Nevada v. Hicks,
121 S. Ct. 2304, 2309-10 (2001), These two exceptions are the
so-called Montana exceptions.
In the present case, the district court held that the first exception
was satisfied; Congress, in the Settlement Act, delegated
authority to the Tribe to regulate Plaintiff's land. That is, even
if the Tribe no longer retained inherent authority to regulate
timber harvesting on non-Indian land within the Reservation’s
boundaries in order to protect cultural resources, the Settlement
Act gave the Tribe authority to do so.
There is ample support for the general proposition that
Congress can delegate jurisdiction to an Indian tribe. The
Supreme Court has stated, repeatedly, that Congress can
delegate authority to an Indian tribe to regulate the conduct of
non-Indians on non-Indian land that is within a reservation.
See, e.g., Atkinson Trading Co., 121 S. Ct. at 1830; Strate v.
A-1 Contractors, 520 U.S. 438, 445 (1997); Bourland, 508 U.S.
at 694-95 & n. 15; Brendale v. Confederated Tribes & Bands of
the Yakima Indian Nation, 492 U.S. 408, 426 (1989) (White, J.)
Appendix A-14
(plurality opinion); Montana, 450 U.S. at 564; Mazurie, 419
U.S. at 553-54.
Whether Congress actually delegated authority here is a
difficult question, however, because the Supreme Court has
discussed only rarely the concept of express congressional
delegation. Indeed, the only opinion in which the Court has
done so in any depth is Mazurie. See Cohen at 253 (noting the
paucity of cases discussing Congressional delegation of
jurisdiction to Indians).
At issue in Mazurie was a tribal ordinance that required every
liquor store located within the Wind River Reservation to
obtain a tribal liquor license. The Wind River Tribes had
enacted the ordinance pursuant to a federal statute that
prohibited the introduction of alcoholic beverages into “Indian
country,” unless it was done in conformity with both state law
and “an ordinance duly adopted by the tribe having jurisdiction
over such area of Indian country.” 18 U.S.C. § 1161. For the
purposes of § 1161, “Indian country” is defined as “all land
within the limits of any Indian reservation,” but excluding
“fee-patented lands in non-Indian communities or rights-of-way
through Indian reservations.” 18 U.S.C. §§ 1151, 1154(c).
The defendants in Mazurie owned a bar on private, non-Indian
fee land within the boundaries of the reservation. The land did
not fit the definition of the statutory exclusion because,
although the land was “fee-patented,” it was not in a
“non-Indian community.” Mazurie, 419 U.S. at 550-52.
Defendants, who were non-Indians, were arrested by federal
officers for operating their bar without a tribal liquor license
and were convicted in federal district court. The Court of
Appeals reversed the convictions, holding that 18 U.S.C.
§ 1161 was an invalid congressional attempt to delegate
Appendix A-15
authority to Indian tribes. Jd. at 550.° The Supreme Court
reversed, holding that
Congress has the constitutional authority to control
the sale of alcoholic beverages by non-Indians on
fee-patented land within the boundaries of an Indian
reservation, and that Congress could validly make a
delegation of this authority to a reservation’s tribal
council.
Id, at 546.
In reaching that conclusion, the Court first noted that Article 1,
section 8, of the United States Constitution grants to Congress
the power to regulate commerce “with the Indian Tribes.” Jd.
at 554. This clause, the Court observed, combined with Court
precedent, leaves no “room for doubt” that Congress has the
power to regulate the sale of alcoholic beverages to Indians and
to regulate the introduction of alcoholic beverages into Indian
country, even if the affected land is owned by a non-Indian and
even if the person regulated is a non-Indian. Jd at 554-56.
Having determined that Congress possessed the power to
regulate the defendants’ land and business, the Court then
analyzed whether this power could be delegated to the Wind
Valley Tribes. The Court said “yes.” Although there are limits
on the authority of Congress to delegate its legislative power,
[t]hose limitations are . . . less stringent in cases
where the entity exercising the delegated authority
itself possesses independent authority over the
subject matter. Thus it is an important aspect of this
case that Indian tribes are unique aggregations
possessing attributes of sovereignty over both their
members and their territory; they are a separate
3 The Tenth Circuit also had held that the statutory definition of the «
term “Indian country” was impermissibly vague, a ruling that the
Supreme Court reversed. Mazurie, 419 U.S. at 552-53.
Appendix A-16
people possessing the power of regulating their
internal and social relations.
Id. at 556-57 (citations and internal quotation marks omitted);
see also Rice v. Rehner, 463 U.S. 713, 730 (1983) (approving
Mazurie’s holding after Montana); Atkinson Trading Co., 121
S. Ct. at 1835 (citing Mazurie with approval).
Mazurie instructs that any determination that Congress
expressly delegated to the Tribe authority to regulate logging on
Plaintiffs land involves two distinct questions. First, we must
be sure that Congress, in the Settlement Act, actually delegated
regulatory authority to the Tribe. Second, if we conclude that
Congress did delegate such authority, we must analyze whether
that delegation was lawful. We answer each question in turn.
B. Dj ‘ ;
ee ee ee ical R 2
The Tribe’s delegation argument goes as follows: In § 1300i-7
of the Settlement Act, Congress stated that the “existing
[governing] documents of the Hoopa Valley Tribe and the
governing body established and elected thereunder, as
heretofore recognized by the Secretary, are hereby ratified and
confirmed.” (Emphasis added.) That section, argues the Tribe,
gave their 1972 Constitution, an “existing [governing]
document,” the force of law.‘
Article III of the 1972 Constitution states that the “jurisdiction
of the Hoopa Valley Tribe shall extend to all lands within the
confines of the Hoopa Valley Reservation boundaries as
established by Executive Order of June 23, 1876, and to such
other lands as may hereafter be acquired by or for the Hoopa
Valley Indians.” (Emphasis added.) Article IX, section (1)()),
* The Tribe’s 1952 Constitution was amended in 1972 and again
approved by the Secretary.
Appendix A-17
states that the Hoopa Valley Business Council, the Tribe’s
“governing body,” may regulate the “use and disposition of
property upon the reservation, provided that any ordinance
directly affecting non-members of the Hoopa Valley Tribe shall
be subject to the approval of the Commissioner of Indian
Affairs.” (Emphasis added.) Therefore, the Tribe concludes,
when Congress ratified and confirmed the Tribe’s Constitution,
Congress delegated power to the Tribe to regulate the use of all
non-members’ land that is within the boundaries of the
Reservation, in certain circumstances.
In response, Plaintiff observes that the Supreme Court has ruled
that any delegation of power to an Indian tribe to regulate a
non-Indian must be express. Because the Settlement Act and
the Tribe’s Constitution are subject to varying interpretations,
argues Plaintiff, they do not rise to the level of “express”
delegation that the Supreme Court has required.
For the reasons that follow, we agree with the Tribe.
1. Inthe Settlement Act, Congress “Ratified and Confirmed”
he Tribe’s Constitut
As with all matters of statutory interpretation, we begin by
examining the statute’s text. Consumer Prod. Safety Comm'n
v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Title 25
U.S.C. § 1300i-7 states that the Tribe’s governing documents
are “hereby ratified and confirmed.” It is notable that Congress
used those terms of art. Black’s Law Dictionary 1135 (Sth ed.
1979)° defines “ratification” as “the confirmation of a previous
act[,] ... [t]he affirmance ... ofa prior act . .. whereby the act
. . . 1S given effect as if originally authorized.” Similarly,
“confirmation” is defined as to “give formal approval .... The
ratification or approval of executive acts by a legislature.” Jd.
* We examine the meaning of statutory terms as of the date of the
enactment in question, Perrin v. United States, 444 U.S. 37, 42
(1979}—here, 1988.
Appendix A-18
at 270. Referring to the ordinary legal significance of the terms,
when Congress “ratified and confirmed” the governing
documents that were “heretofore recognized by the Secretary,”
Congress was authorizing, giving effect to, and formally
approving the Tribe’s 1972 Constitution.
The phrase “ratified and confirmed” has additional significance
because it is the same phrase that Congress historically has used
to give legal recognition to agreements between Native
Americans and the United States. See, e.g., Act of Feb. 28,
1877, 19 Stat. 254 (establishing that an agreement between the
“Manypenny Commission” and the Sioux Indian Tribes was
“ratified and confirmed”); Act of Mar. 3, 1891, 26 Stat. 1027,
1029 (establishing that two agreements between the
Commissioner of Indian Affairs and the Coeur d’ Alene Indian
Tribe were “ratified and confirmed”); Curtis Act, 30 Stat. 495,
505 (establishing that an agreement between the Dawes
Commission and the Choctaw and Chicksaw Tribes was
“ratified and confirmed”).°
Furthermore, in 1988, Congress was well aware of the
significance of the term “ratified,” for the Supreme Court
recently had held that an agreement with an Indian tribe is given
the force of law when “ratified” by Congress. In Antoine v.
Washington, 420 U.S. 194 (1975), the Court had to interpret a
statute “ratifying” an agreement between the Colville
Confederated Tribes and the United States. Jd. at 198 (quoting
34 Stat. 1015, 1050-1051 (1907)). The question before the
Court was whether a provision in the ratified agreement
preempted a Washington state law. The Washington Supreme
° The Settlement Act, unlike the congressional acts cited, “ratified
and confirmed” a tribal constitution, rather than an agreement
between the United States and an Indian tribe. But the fact that
Congress used the words that it typically uses when it gives the force
of law to a document involving an Indian tribe still illuminates
Congress’ intent.
TS en et Ee ENGEL OTT Te ee EE Re ee re eT ee ee
Appendix A-19
Court had interpreted the statute as not giving the agreement the
force of law because the agreement was not a treaty. The
Supreme Court disagreed, holding that, “[o]nce ratified by Act
of Congress, the provisions of the agreements become law, and
like treaties, the supreme law of the land.” Jd. at 204. We
presume that Congress knew of this interpretation. See
Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988)
(“We generally presume that Congress is knowledgeable about
existing law pertinent to the legislation it enacts.”).
In view of the usual meaning of the terms, their historic usage,
and the Supreme Court’s interpretation, the plain text of the
Settlement Act establishes that, when Congress “ratified and
confirmed” the Tribe’s governing documents, it intended to
give the Tribe’s Constitution the force of law.
Our conclusion is buttressed by the legislative history, which
makes clear that the Settlement Act was a response to confusion
over who had the right to “make management decisions relating
to the lands and resources of the ‘Square’ or, for that matter, the
reservation as a whole.” Senate Report at 9. The Senate Report
explains that Congress’ understan<ing of the law governing the
Reservation was that, “absent statutory delegations,” the
Hoopas could not manage the Square. Jd. The ratification and
confirmation of the Tribe’s Constitution was exactly that: a
“statutory delegation[ ]” of authority to the Tribe to “make
management decisions relating to the lands and resources of the
. Square. 999
The dissent argues that any delegation of authority to regulate
non-members’ land within the Reservation was not
“consciously made” and hypothesizes that Congress’ use of the
words “ratified and confirmed” in § 1300i-7, when juxtaposed
‘against Congress’ repetition of those words in § 1300i-8,
expressed Congress’ intent to recognize the Tribe and the
Yuroks as the “governing authorities of their respective
reservations.” (Dissent at 12917.) That forced parallelism will
Appendix A-20
not withstand contextual scrutiny. The phrase “ratified and
confirmed” cannot exist in isolation; it requires an object.
Section 1300i-8 “ratifies and confirms” the Yurok Tribe’s status
“as an Indian tribe,” a status that was previously unrecognized,
while § 1300i-7 “ratifies and confirms” the Hoopa Tribe’s
“[governing] documents.” (Emphasis added.) As we have
explained, the Hoopa Valley Tribe had a longstanding
government, while the Yuroks had none.
In sum, the natural reading of § 1300i-7—confirmed by its
context and history—is that Congress was giving legal force to
the Tribe’s governing body and governing documents, and that
is the reading that we give it. We turn now to the meaning of
the Tribe’s Constitution with respect to the use of fee lands
within the Reservation.
2. The Constitution G he Tribe Authori Plaintif?
Land.
The Tribe points to two provisions of its constitution that, it
claims, give it regulatory authority over Plaintiff s land in order
to protect the Tribe’s cultural and natural resources: Articles Ill
and IX(1)(]). We agree that the plain text of those provisions
supports the Tribe’s position.
Article Ill states that the jurisdiction of the Hoopa Valley Tribe
shall extend to all lands within the confines of the Hoopa Valley
Reservation boundaries as established by Executive Order of
June 23, 1876, and to such other lands as may hereafter be
acquired by or for the Hoopa Valley Indians.” (Emphasis
added.) Article III is clear. The Tribe has jurisdiction over “all
lands” within the borders of the Square.’
Plaintiff argues that the last clause of Article II, which refers to
“such other lands,” renders ambiguous the first clause, “shall
7 “Confines” means “border or limit; boundary.” The American
Heritage Dictionary 279 (1976).
Appendix A-21
extend to all lands within the confines” of the Reservation.
Specifically, Plaintiff posits that, if the “other” lands that may
be acquired later must be “acquired by or for the Hoopa Valley
Indians,” then the original lands referred to in the first clause
also must be assumed to include only lands “acquired by or for
the Hoopa Valley Indians” and thus must be assumed to
exclude fee lands owned by non-Indians.
Plaintiff's reading of Article III is labored; it gives too much
weight to the word “other” and gives too little weight to the
word “all.” Article III’s reference to “all lands within the
confines of the Hoopa Valley Reservation boundaries as
established by Executive Order of June 23, 1876, “means the
Square. “[O]ther lands” simply adds to the first clause—lands
in addition to the Square, which may be acquired later by or for
the Tribe.
Plaintiff also argues that the reference to “such other lands as
may hereafter be acquired” must mean all land that the Tribe
did not own at the time of the Settlement Act, including fee
land such as hers. Under that interpretation, fee land does not
qualify for inclusion in “all lands within the confines of the
Hoopa Valley Reservation boundaries.” To read Article III
otherwise, she says, would be to make the second clause
“surplusage.”
That conclusion does not follow. The “such other lands” clause
refers to a meaningful category of lands—lands outside the
Square—that could be acquired later, but that do not fall within
the category of “all lands” within the Square.
Our understanding of Article I] makes perfect sense when it is
read in the light of the overall historical context. The first
clause of Article III refers to “all lands within the confines of
the Hoopa Valley Reservation boundaries as established by
Executive Order of June 23, 1876.” (Emphasis added.) At that
time, there was no fee land yet checkerboarding the
Reservation, because the General Allotment Act was not passed
Appendix A-22
until 1887. Thus, our reading of the first clause gives meaning
to the historical reference in Article III, while Plaintiff's does
not.
Additionally, the Indian Reorganization Act authorizes the
Secretary of the Interior to acquire Jand for Indians “within or
without existing reservations,” 25 U.S.C. § 465, and to “add
such lands to existing reservations,” 25 U.S.C. § 467. The
second clause of Article III appears to be designed to foresee
that contingency, extending tribal jurisdiction over any new
lands so acquired.
In short, Article III provides that the Tribe has jurisdiction over
“all lands” within the borders of the Square. We conclude that
this assertion of jurisdiction includes Plaintiff's land.
The second provision on which the Tribe relies is Article
IX(1)(i). Article IX sets out the “powers” of the Hoopa Valley
Business Council Section 1(]) grants the Council the power to
safeguard and promote the peace, safety, morals, and
general welfare of the Hoopa Valley Indians by
regulating the conduct of trade and the use and
disposition of property upon the reservation,
‘provided that any ordinance directly affecting
non-members of the Hoopa Valley Tribe shall be
subject to the approval of the Commissioner of
Indian Affairs... .
(Emphasis added.)
That provision unambiguously contemplates tribal regulation of
the use of property upon the reservation, even if the regulation
affects “non-members.” Plaintiff acknowledges that Article
IX(1)(]) refers to non-members as individuals, but notes that it
does not refer to non-members’ fee lands. Again, we are not
persuaded.
Appendix A-23
Plaintiff's position is that fee lands owned by non-Indians do
not count as “property upon the reservation.”* In view of our
reading of Article III, however, we believe that Article IX(1)(1)
plainly refers to all property upon the Square, whoever owns it.
Moreover, Plaintiff's reading of Article [X(1)(1) would make
some of its provisions meaningless. The proviso that “any
ordinance directly affecting non-members” is subject to
approval contains no further limitation; that is, it assumes that
any of the kinds of ordinances covered by Article [X(1)(1) could
affect non-members. (Emphasis added.) Plaintiff's
interpretation gives full force to the grant of power to regulate
non-members’ “conduct of trade” but would give no force to
the grant of power ‘to regulate non-members’ “use and
disposition of property.” If the Tribe could not regulate non-
members’ fee lands, there would be no reason to provide for
approval of ordinances that affect for example, non-members’
“disposition of property upon the reservation.”
Like Article II, Article [X(1)(1) is unambiguous. It states
unequivocally that the Council can pass an ordinance that
affects non-members and their lands, so long as the ordinance
safeguards and promotes the peace, safety, morals, and general
welfare of the Tribe and is approved by the Commissioner of
Indian Affairs. An ordinance that is designed to protect a
tribe’s significant historical and cultural resources “safeguard(s]
and promote{s] the peace, safety, morals, and general welfare”
of the tribe. It is undisputed that the ordinance was approved by
the Commissioner of Indian Affairs.
* Plaintiff does not argue that “property” refers only to personal
property, rather than real property, and indeed Article IX(1)(]) would
not support such a limitation.
Appendix A-24
Under Article III and Articie [X(1)(]), then, the Tribe had the
power to pass the ordinance that affected Plaintiff's logging
activity on her fee land within the borders of the Reservation.’
3, ; ‘ “ie
| Read Together with the Inbal Constituuon. the Settlement E Delegati he Tri
Plaintiff argues that, even if the Settlement Act and the Tribal
Constitution, read together, constitute a delegation of authority
to the Tribe, it is not the kind of “express” authorization that the
Supreme Court has required before a tribe may regulate
non-Indian lands that are within a reservation’s boundaries. See
Strate, 520 U.S. at 445 (“Our case law establishes that, absent
express authorization by federal statute or treaty, tribal
jurisdiction over the conduct of nomnembers exists only in
limited circumstances.”). We come to the opposite conclusion.
As the preceding analysis establishes, neither the Settlement
Act nor the Tribe’s Constitution contains any ambiguity. When
Congress ratified and confirmed the Tribe’s Constitution,
Congress delegated authority to the Tribe to regulate all the
lands within the Square, including that owned by Plaintiff.
We presume, as we must, that Congress understood the contents
of the governing documents that it ratified and confirmed. As
the Supreme Court has taught, the argument that “Congress was
unavare of what it accomplished or that it was misled by the
groups that appeared before it” lacks force. United States R.R.
Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980). “If this test were
* When Congress enacted the Settlement Act in 1988, the Tribe did
not yet have delegated authority to regulate private land,
notwithstanding the provisions of Article II] and Article [X(1)J).
The Tribe may have retained inherent authority to do so, but we need
not decide whether it had inherent authority. Even if the tribal
assertion of jurisdiction over non-members’ fee lands within the
Reservation was ultra vires in 1972, Congress “ratified and
confirmed” the Tribe’s Constitution in 1988—that is, it validated and
confirmed the Tribe’s previous act.
Appendix A-25
applied literally to every member of any legislature that ever
voted on a law, there would be very few laws which would
survive it.” Jd. If the text of a statute is clear, as it is here, we
must assume that “Congress intended what it enacted.” Jd.
Even if that presumption did not apply, the events surrounding
the enactment of the Settlement Act show that Congress
understood the scope of its delegation. As noted, the legislative
history makes clear that Congress was under the impression
that, “absent statutory delegations,” the Hoopas could not
“make management decisions relating to the lands and
resources of the ‘Square.’” Senate Report at 9.
The Tribe had been attempting to make such “management
decisions” before Congress enacted the Settlement Act. In
doing so, the Tribe took the position that its constitution
enabled it to promulgate ordinances affecting non-members and
their fee lands within the Square. For example, section 1.1.04
of the Law and Order Code of the Hoopa Valley Tribe, which
was enacted in 1986, asserts that
the effective area of this Code shall include all
territory within the Hoopa Valley Indian
Reservation, as defined by . . . the Hoopa Tribal
Constitution, including fee patent lands, allottments
[sic], assignments ... and existing and future lands
outside the boundaries of the Reservation owned or
controlled by the Hoopa Valley Tribe.
Similarly, the Comprehensive Plan for the Hoopa Valley Indian
Reservation, adopted in 1973, grants the Tribe’s government
the power to “provide for assessments or license fees . . . [of] all
commercial ventures within the limits of the Reservation,”
while at the same time acknowledging that “95 percent of all
commercial business services are owned by non-Indians and are
located on former Tribal land.” Hoopa Valley Indian
Reservation Comprehensive Plan §§ 1.604, 1.608 (adopted
June 21, 1973).
Appendix A-26
Moreover, it is significant that the ratification of the Tribe’s
Constitution was not self-executing. Instead, its
implementation was contingent on actions that were to occur
within sixty days alter the Act’s passage. Section
1300i-1(a)(2)(A) provided that the partition of the reservation
and the ratification and confirmation of the Tribe’s governing
documents would occur only if the Tribe passed a resolution
waiving claims against the United States and consenting to the
Settlement Fund. The tribal resolution had to be approved by
the Secretary and published in the Federal Register.
The Tribe passed the requisite resolution and had it approved by
the Secretary and published in the Federal Register. The
resolution sheds more light on the circumstances surrounding
the Settlement Act. It stated, among other things, that the Puzz
and Short cases had “crippled the power of the Hoopa Valley
Business Council to exercise the authorit[y] granted under the
Tribe's Constitution. .. to governnon-members.” 53 Fed. Reg.
at 49361 (emphasis added). With the Settlement Act, Congress
expressly gave that authority to the Tribe.
After that resolution was published and approved, Congress
amended the Settlement Act, see Pub. L. 101-301, but it did
nothing to alter the Tribe’s interpretation, which the Secretary
had approved, and which had been duly published. “Although
postenactment developments cannot be accorded the weight of
contemporary legislative history, we would be remiss if we
ignored these authoritative expressions concerning the scope
and purpose” of the statute. N. Haven Bd. of Educ. v. Bell, 456
U.S. 512, 535 (1982) (citation and internal quotation marks
omitted). When “an agency’s statutory construction has been
fully brought to the attention of the public and the Congress,
and the latter has not sought to alter that interpretation although
it has amended the statute in other respects, then presumably the
legislative intent has been correctly discerned.” Jd. (citation
Appendix A-27
We acknowledge that the Settlement Act does not contain a
detailed explanation, such as “we hereby delegate to the Tribe
the power to regulate all lands within the Reservation,
notwithstanding any patent owned by non-Indians.” But no
particular verbal formula is required.
On this issue, we agree with the District of Columbia Circuit’s
opinion in Arizona Public Service Co. v. EPA, 211 F.3d 1280
(D.C. Cir. 2000), cert. denied, 121 S. Ct. 1600 (2001). There,
the court responded to an argument that because Congress had,
in the past, delegated authority to regulate non-Indians to Indian
tribes by using the words “notwithstanding the issuance of any
patent,” any delegation that did not use these words could not
be an express delegation of authority to regulate non members.
The court disagreed and observed: “That a provision uses a
new formulation is not dispositive of the question as to whether
it constitutes an express delegation.” 211 F.3d at 1289.
The Settlement Act is not ambiguous. When Congress ratified
and confirmed the Tribe’s Constitution, it gave that constitution
the force of law. Neither is the Tribe’s Constitution ambiguous.
It contemplates regulation of all land within the Square, in order
to protect the general welfare of the Tribe, even if that
regulation affects the use of lands owned in fee by
non-members. In sum, when the Tribe passed the ordinance, it
was acting pursuant to authority expressly granted by Congress.
C. Could Congress Delegate That Authority to the Tribe?
Plaintiff's final argument is that Congress could not delegate
such authority to the Tribe, even if it meant to. Plaintiff asserts
that “there is no authority or precedent for finding that an Act
of Congress can take regulatory jurisdiction over fee-simple
non-Indian owned property away from a state government and
give it toa tribe.”
Plaintiff has framed the question incorrectly, because her
question assumes that state and federal jurisdiction cannot exist
EE Se te Fg Se Tae Ps
Appendix A-28
simultaneously over fee-patented land within a reservation. It is
true that a state has some jurisdiction over fee-patented land
within an Indian reservation. E. g., County of Yakima, 502 U.S.
at 257-58, 268; Cohen at 352. It also is true, however, that
federal jurisdiction reaches activities that occur on fee patented
land within a reservation. £.g., 18 U.S.C. §§ 1151, 1152;
Mazurie, 419 U.S. at 555. Put differently, the want of state
regulatory jurisdiction over land is not a necessary condition for
federal, regulatory jurisdiction over the same land. See White
Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43
(1980) (explaining preemption law applicable to Indian
reservations).'° In fact, the Supreme Court has suggested that
tribal jurisdiction and state jurisdiction are not mutually
exclusive. See Brendale, 492 U.S. at 440 n.3 (“The possibility
that the county might have jurisdiction to prohibit certain
land uses . . . does not suggest that the Tribe lacks
similar authority.”) (Stevens, J.) (plurality opinion); see also
Confederated Tribes v. Washington, 591 F.2d 89 (9th Cir.
1979) (holding that tribal fishing regulations on waters within
the Colville Reservation did not preempt state fishing
regulations concerning the same waters).
Regardless, the question whether California may also have
jurisdiction over Plaintiff's land is not before us; we are
concerned only with whether Congress, in order to protect sites
of cultural or religious significance to a tribe, can regulate
timber ‘h=r'vesting on private property that is located within a
reservation and, if so, whether it can delegate that power to the
Tribe. apts ibis vise cw teal
Congress’ sovint srvat Willd Andiaa cai leita
our federal system because it includes general federal authority
” This principle is not unique to fee-patented lands within the
borders of Indian reservations. The use of private property routinely
is subject to regulation by both the federal and state governments.
Appendix A-29
to legislate over health, safety, and morals.” Cohen at 219. It
is “now generally recognized that the power derives from
federal responsibility for regulating commerce with Indian
tribes and for treaty making.” McClanahan v. State Tax
Comm'n, 411 U.S. 164, 172 n.7 (1983) (citing U.S. Const. art.
I, § 8, cl. 3; U.S. Const. art. Il, § 2, cl. 2). The Supreme Court
has referred to Congress’ power over Indian affairs as “plenary”
and has noted that,
“in the exercise of the war and treaty powers, the
United States overcame the Indians and took
possession of their lands, sometimes by force,
leaving them needing protection against the
selfishness of others and their own improvidence.
Of necessity the United States assumed the duty of
furnishing that protection, and with it the authority to
do all that was required to perform that obligation
and to prepare the Indians to take their place as
independent, qualified members of the modern body
politic.”
Morton v. Mancari, 417 U.S. 535, 552 (1974) (quoting Bd. of
County Comm'rs v. Seber, 318 U.S. 705, 715 (1943)). Of
course, the power of Congress in Indian affairs, although
“plenary,” is not absolute; it must be “rationally related” to the
‘on of Indians. Del. Tribal Bus. Comm. v. Weeks, 430
U.S. 73, 86 (1977).
It is clear that Congress, exercising its plenary power Over
Indian tribes, could enact the ordinance in question and could
regulate all the land within the Reservation that is owned by the
Tribe or held in trust for the Tribe. White Mountain Apache
Tribe, 448 U.S. at 145-46. And we do not read the Supreme
Court’s cases as holding that Congress’ plenary power to act on
bebalf of Native Americans necessarily ends at the border of
allotted land, owned by a non-Indian, that is located wholly
within a reservation. Rather, although the ownership status of
Appendix A-30
land is one factor in determining the jurisdictional reach of the
federal government, it is not dispositive.
As we noted earlier, the Court has held that Congress can
delegate to an Indian tribe the power to regulate a private
landowner whose property is located wholly within a
reservation. £.g, Montana, 450 U.S. at 564. By necessary
implication, it follows that Congress itself could regulate the
same property in the first instance.
A more express version of that proposition is found in Mazurie,
in which the Court noted that the federal government retains
authority, under its Indian Commerce Clause power, to regulate
the use of land within a reservation that is owned by a
non-Indian, if the regulation—in that case, a regulation
pertaining to the sale of alcohol—is meant to benefit the tribe.
419 U.S. at 555. Indeed, the Court in Mazurie upheld the
constitutionality of 18 U.S.C. § 1151, which defines “Indian
country,” the purposes of federal criminal jurisdiction, as
including fee-patented lands. Jd. at 555."
The Court in Mazurie was guided by two other cases, Seymour
v. Superintendent of Washington State Penitentiary, 368 U.S.
351 (1962), and Perrin v. United States, 232 U.S. 478 (1914).
In Seymour, the Court held that the federal government had
jurisdiction over a crime committed by an Indian on land
patented in fee to anon-Indian. 368 U.S. at 358. In so holding,
the Court reasoned that making criminal jurisdiction dependent
on land ownership would create an “impractical pattern of
checkerboard jurisdiction,” which would be unworkable. Jd.
Similarly, in Perrin, the Court held that the federal government
could regulate the sale of alcohol on surplus lands that were
formerly part of a reservation (as distinct from allotted land
! Other cases have extended 18 U.S.C. § 1151 to include civil .
jurisdiction. E.g., DeCoteau v. Dist. unperonee tes beem 425,
427 n.2 (1975).
Appendix A-3!
within a reservation.), but now were owned by non-Indians.
732 U.S. at 486-87. The defendant argued that the federal
regulation exceeded the power of Congress, but the Court
disagreed. Congress did have the authority to protect the tribe:
As the power is incident only to the presence of the
Indians and their status as wards of the Government,
it must be conceded that it does not go beyond what
is reasonably essential to their protection, and that, to
be effective, its exercise must not be purely arbitrary,
but founded upon some reasonable basis.
Id. at 486.
Mazurie, Seymour, and Perrin establish that, when evaluating
a regulation aimed at protecting a tribe, land ownership and
tribal membership are not determinative of jurisdiction. More
support for that proposition can be found in the legal doctrine
that has developed around the “surplus land act” cases, in which
the Court has attempted to define the applicable jurisdictional
regime on unallotted surplus reservation lands that Congress
opened to non-Indian settlement. Generally, the Court has
instructed, the states have jurisdiction over unallotted surplus
lands “if the applicable surplus land act. . . diminished the
reservation boundaries.” Solem, 465 U.S. at 467. By contrast,
if a surplus land act “simply offered non-Indians the
opportunity to purchase land within established reservation
boundaries, then the entire opened area remained Indian
country,” including non-Indian fee land, and was subject to
federal regulation. South Dakota v. Yankton Sioux Tribe, 522
U.S. 329, 343 (1998) (citation and internal quotation marks
omitted).
In ‘those cases, the Court has determined jurisdiction by
examining the text of the surplus land act in question, as well
as the historical context surrounding the act and the subsequent
Appendix A-32
treatment of the land. Jd. at 344. Notably, in Solem, the Court
observed that, “[o}nce a block of land is set aside for an Indian
Reservation and no matter what happens to the title of
individual plots within the area, the entire block retains its
reservation status until] Congress explicitly indicates otherwise.”
465 U.S. at 470 (emphasis added).
From that jurisprudence we derive support for the principle that
federal jurisdiction within a reservation is not dependent solely
on the ownership status of the land in question. Instead,
following the cases described above, we must (a) examine
whether Congress intended to divest itself of all jurisdiction
when it authorized allotment of the Reservation, and (b) then
determining whether the ordinance is necessary for the
protection of the Tribe.
We do not believe that Congress intended to divest itself of
jurisdiction in this case. The Hoopa Valley Reservation, even
after allotment, remains 97.2 percent intact. Less than one
percent of the land is owned in fee simple by non-Indians.
Again, reasoning by analogy to the surplus land act cases, when
determining Congress’ intent to divest itself of jurisdiction,
“Congress’s own treatment of the affected areas . . . has some
evidentiary value, as does the manner in which the [BIA] and
local judicial authorities dealt with unallotted open lands.”
Solem, 465 U.S. at 471. Here, less than one percent of the land
is owned in fee by non-Indians, due primarily to the federal
government’s own unwillingness to authorize large-scale
allotment in the Square. See Nelson at 195-96 (summarizing
the history of allotment on the Hoopa Valley Reservation).
That unwillingness also is illustrated by Congress’ failure to
pass an allotment act that was directed specifically to the Hoopa
Valley Reservation, as it did for several other reservations. See
Matiz, 412 U.S. at 497 (noting that “Congress occasionally
Appendix A-33
enacted special legislation in order to assure that a particular
reservation was in fact opened to allotment”).
The Supreme Court’s opinion in Mattz is especially instructive.
There, the question for the Court was whether the Klamath
River Indian Reservation (i.e., the Extension) was terminated by
congressional act, or whether it remained “Indian country.” The
State of California argued for the former result, It reasoned that,
although in 1891 the Extension was joined to the Square, in
1892 Congress passed an “act to provide for the disposition and
sale of lands known as the Klamath River Indian Reservation,”
which opened the Extension to allotment to Indians and to
homesteading by non-Indians. Jd. at 494-95. The 1892 statute,
said the state, extinguished the entire Extension’s “reservation
status.” Id. at 496.
The Supreme Court disagreed. The Court noted that the 1892
act was similar to the 1887 General Allotment Act, in which
Congress had established its intention “to continue the
reservation system and the trust status of Indian lands, but to
allot tracts to individual Indians for agriculture and grazing.
When ail the lands had been allotted and the trust expired, the
reservation could be abolished.” Jd. (emphasis added). The
Court determined that the provisions of the 1892 Act “do not
differ materially from those of the General Allotment Act of
1887” and, therefore, “allotment under the 1892 Act is
completely consistent with continued reservation status.” Id.
at 497 (emphasis added). The Court then stated that ““when
Congress has once established a reservation all tracts included
within it remain a part of the reservation until separated
therefrom by Congress.” Jd. at 504-05 (emphasis added)
(quoting United States v. Celestine, 215 U.S. 278, 285 (1909)).
As we have noted, the Supreme Court also has held that land
retains its “reservation status” after being ceded to non-Indians
under a surplus land act and, thus, may be subject to federal
jurisdiction. This is in contrast to a statute that diminished the
Appendix A-34
reservation boundaries, leaving the non-Indian fee land outside
the reservation. See Yankton Sioux Tribe, 522 U.S. at 333, 343
(evaluating whether ea landfill was subject to federal
environmental regulations by determining whether the land,
which was owned in fee by a non-Indian, was still a part of the
reservation, and concluding that it was not part of the
reservation). The key to determining “reservation status” is
Congressional intent. Jd. at 343. And Mattz establishes that
Congress meant for tracts of land within a reservation that were
allotted pursuant to the General Allotment Act to retain their
reservation status until all reservation lands eventually could be
allotted and the reservation could be abolished. 412 U.S. at
496.
The foregoing analysis, combined with Mazurie’s holding that
it is constitutional for Congress to regulate non-Indians’
conduct on privately owned, allotted land within a reservation,
leads us to conclude that Plaintiff's land—which is wholly
within a reservation and which was allotted pursuant to the
General Allotment Act—remains subject to plenary federal
jurisdiction.
It is true, as Plaintiff points out, that the Court has stated that it
“defies common sense to suppose that Congress would intend
that non-Indians purchasing allotted lands would become
subject to tribal jurisdiction.” Montana, 450 U.S. at 559 n.9.
However, that statement was a reference to a tribe’s inherent
authority, not to the jurisdiction of the United States that may
have remained after allotment. Jd.
Moreover, even concerning a tribe’s remaining inherent
authority, the Court recently held that Congress “could not have
intended,” in enacting the General Allotment Act, “that tribes
would lose control over the character of their reservations upon
the sale of a few, relatively small parcels of land.” Brendale,
492 U.S. at 441 (Stevens, J.) (plurality opinion) (emphasis
added). In Brendale, the Court, in a fractured opinion, held that
Appendix A-35
an Indian tribe retains authority to zone a 1f0n-Indian’s fee land
that is within a “closed” part of a reservation. Id We believe
that the same can be said of Congress’ plenary authority over
the Square. Congress could not have intended, after “the sale
of a few, relatively small parcels of land,” id., to lose its power
to pass regulations that protect the Tribe, including regulations
that encompass the entire Reservation.
b. The Ordinance Protects the Tribe.
The ordinance in question, like the regulations in Mazurie,
Perrin, and Brendale, is a role of general applicability that is
intended to protect “the internal and social relations of tribal
life.” Mazurie, 419 U.S. at 557. While Plaintiff has
deconstructed the ordinance into a regulation that is only about
cutting trees, we view it more holistically as a reasonable means
to preserve and protect tribal resources that possess significant
historical and religious value. We see no principled reason why
the federal government can prohibit a non-Indian from selling
alcohol on land that he owns in fee within a reservation, in
order to protect the physical health of an Indian tribe, but cannot
prohibit a non-Indian from using such lands so as to put the
spiritual health of a tribe at risk.
We conclude, then, that the federal government did retain
jurisdiction to protect the cultural and natural resources of the
Reservation, despite the fact that land owned by non-Indians
would be affected by such regulation.
Finally, we must determine whether Congress could delegate
- that regulatory authority to the Tribe. Again, we look to
Mazurie for our answer. There, the Court noted that, although
there are “limits on the authority of Congress to delegate its
legislative power,” those limits are “less stringent in cases
Appendix A-36
U.S. at 556-57. Indian tribes, the Court observed, “are unique
aggregations possessing attributes of sovereignty over both their
members and their territory.” Jd. at 557; see also Atkinson
Trading Co., 121 S. Ct. at 1835 (citing Mazurie with approval).
This case, like Mazurie, involves the regulation of a
non-Indian’s conduct on land owned by a non-Indian wholly
within the boundaries of a reservation. As in Mazurie, the
ordinance at issue affects “the internal and social relations of
tribal life,” a subject as to which the Tribe retains at least some
independent authority. 419 U.S. at 557; see also Brendale, 492
U.S. at 441 (holding that an Indian tribe retained inherent
authority to zone land held in fee by a non-member in a closed
area of a reservation); Montana, 450 U.S. at 566 (noting that
Indian tribes retain inherent power to exercise civil authority
over the conduct of non-Indians on fee lands within the
reservation “when that conduct threatens or has some direct
effect on the . . . health or welfare of the tribe”).
Plaintiff also argues that Congress could not delegate regulatory
power to the Tribe because she cannot become a member of the
Tribe and therefore cannot participate in its government. The
Court in Mazurie rejected a similar argument, noting that
non-members were protected from arbitrary tribal conduct in at
least two ways: (1) by 25 U.S.C. § 1302, which applies
constitutional prohibitions to tribal governments; and (2) by the
fact that the tribal ordinances had to be approved by the
'2 The Court’s reference to Indian tribes’ “independent authority
over the subject matter” is not an instruction for us to undertake a
Montana-like analysis to see whether the Tribe actually retains
inherent authority over Plaintiff's land. Instead, we read the Court
to mean only that Congress can delegate to Indian tribes those
powers that are within the sphere of the Indian Commerce
Clause—powers that are “rationally related” to the protection of
Indians. Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 86 (1977).
Congress could not, for example, delegate to a tribe the power to
regulate commerce with foreign nations.
Appendix A-37
Secretary. 419 U.S. at 558 n.12. The same is true here.
Section 1302 applies to the Tribe and, pursuant to the Tribe’s
Constitution, any ordinance directly affecting non-members
must be approved by the Secretary—as this ordinance was.
Because the Tribe possesses unique “attributes of sovereignty,”
and because the Tribe has at least some “independent authority
over the subject matter” at issue, we hold that the federal
government could delegate to the Tribe its authority to protect
cultural and historical resources of significance, “even though
the lands were held in fee by non-Indians, and even though the
persons regulated were non-Indians.” Mazurie, 419 U.S. at
554, 557.
CONCLUSION
We hold that Congress expressly delegated authority to the
Tribe to enact the ordinance in question and that Congress had
the power to do so.
AFFIRMED.
Sot ee
Appendix A-38
FERNANDEZ, Circuit Judge, with whom KLEINFELD and
WARDLAW, Circuit Judges, join, Dissenting:
Because I disagree with the majority’s holding that Congress
has expressly conferred jurisdiction upon the Hoopa Valley
Tribe over lands held in fee by non-Indians, | dissent.
In reaching this conclusion, I have given, as I must, the greatest
deference to the Supreme Court’s insistence that jurisdiction
over non-Indians on non-Indian land is exceptional. That is
because tribes have limited authority and jurisdiction over
non-Indians. See Atkinson Trading Co., Inc. v. Shirley, U.S
__,__, 121 S. Ct. 1825, 1830, 149 L. Ed. 2d 889 (2001); Strate
v. A-] Contractors, 520 U.S. 438, 446, 117 S. Ct. 1404,
1409-10, 137 L. Ed. 2d 661 (1997); Montana v. United States,
450 U.S. 544, 549, 101 S. Ct. 1245, 1250, 67 L. Ed. 2d 493
(1981). That limitation is surely proper and should be treated
with respect, especially in light of the fact that if jurisdiction
exists non-Indians will have no representation in the
government or councils of the tribes, but will be subjected to
the demands of a separate sovereign within the boundaries of
the United States itself.' Thus, before finding that Congress has
expressly authorized a tribe to assert jurisdiction over non
indians and their lands, the authorization should, in my view, be
truly pellucid. We should not have to ferret it out in the midst
of a fuliginous cloud of words. We should expect great clarity
when Congress is ceding sovereignty to entities in which those
' As the Court recently noted: “Hitherto, the absence of tribal
ownership has been virtually conclusive of the absence of tribal civil
jurisdiction; with one minor exception, we have never upheld under
Montana the extension of tribal civil authority over nonmembers on
non-Indian land.” Nevada v. Hicks, U.S.__, _,121 S. Ct. 2304,
2310, 69 L. Ed. 2d 4528 (2001). That, it seems to me, lays bare the
fondemental fact that the scope of the jurisdiction asserted here is
truly unusual.
Appendix A-39
who are affected will have no say. With that in mind, | turn to
the issue at hand.
be improved upon.
The original panel set out the issue in words that cannot easily
I shan’t try, but will instead rather
extensively quote its language.
The statutory provision at issue provides, in full, as
follows: “The existing governing documents of the
Hoopa Valley Tribe and the governing body
established and elected thereunder, as heretofore
recognized by the Secretary, are hereby ratified and
confirmed.” 25 U.S.C. § 1300i-7.
The fact that nothing in the Settlement Act itself
explicitly confers upon the Tribe jurisdiction to
regulate nonmembers raises serious questions as to
how carefully Congress considered whether it was
making any grant of regulatory authority to the Tribe.
Moreover, the Settlement Act uses the same “ratified
and confirmed” language to recognize the newly
created Yurok Tribe, 25 U.S.C. § 1300i-8, which
suggests that this 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 consciously made delegation of authority to
the tribes to exercise jurisdiction over nonmembers.
Indeed, legislative history makes clear that
Congress’s overriding concern in passing the
Settlement Act was ending the acrimonious disputes
between the Hoopa and non-Hoopa Indians living in
_ the Hoopa Valley by creating two separate
_ seservations, one for the Hoopa and one for the
Yurok, in which each group would be free to govern
itself without interference from the other. See, e.g.,
134 Cong. Rec. $13967-02, 1988 WL 177595, at
Appendix A—40
*34 (Sept. 30, 1988) (statement of Sen. Inouye)
(explaining the Hoopa Tribe’s loss of its ability to
govern the area that ultimately became its exclusive
reservation); 134 Cong. Rec. H9406-01, 1988 WL
176807, at *35 (Oct. 3, 1988) (statement of Rep.
Bosco) (explaining the Settlement Act as “lay[ing]
the groundwork for strong, healthy tribal
communities”). 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
non-Indians such as Bugenig.
Despite this ambiguity with respect to the Settlement
Act as a grant of power over tribal nonmembers, the
district court interpreted § 1300i-7 as a congressional
delegation of authority to the Tribe to exercise such
jurisdiction. The district court reasoned that
§ 1300i-7’s “ratified and confirmed” language works
o “give[ ] every clause in the document being
ratified the full force and effect of a congressional
statute.” Turning to the Tribe’s governing
documents, the district court looked to Article III of
the Tribal Constitution, which provides that the
Tribe has jurisdiction over “all lands within the
confines of the Hoopa Valley Indian Reservation
boundaries as established by Executive Order of
June 23, 1876, and to such other lands as may
hereafter be acquired by or for the Hoopa Valley
Indians.” The district court held that “under the
plain language of Article III, the Hoopa Valley Tribe
has jurisdiction over Bugenig’s land” as Jand located
within the boundaries of the reservation.
Appendix A-41
Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1215-16 (9th
Cir. 2000) (Bugenig 1).’
As | see it, the district court was surely wrong when it
determined that the language in question clearly conferred
jurisdiction over non-Indians on non-Indian land within the
boundaries of the reservation. There is not a whisper of that in
the language in question; nor is there any reason to think that
Congress divined that intention lurking in the words. To
assume that jurisdiction means a general plenary jurisdiction
over others and that all we need to do is ruminate on its
territorial scope is to beg the question.
As itis, there is nothing remarkable about a tribal constitution’s
declaration that the reach of tribal authority will extend to its
own boundaries, and that is all the language at hand declares.
That is a far cry from saying that the tribe will have unrestricted
authority to regulate the use of non-Indian land within those
boundaries, regardless of the fact that a tribe generally has no
such powers. Still, there are occasions when a tribe is
empowered to regulate others, even without an express
conferral of jurisdiction by Congress. The Supreme Court said
as much before this tribal constitution was ratified by Congress,
and Congress must have been aware of that. I speak, of course,
of the so-called Montana exceptions. See Montana, 450 U.S.
at 565-66, 101 S. Ct. at 1258. Those exceptions have been
carefully circumscribed. See, e.g., Atkinson Trading, US.
at _, 121 S. Ct. at 1832-35 (2001.); County of Lewis v. Allen,
163 F.3d 509, 515 (9th Cir. 1998). Nonetheless, the exceptions
2 The district court also pointed to Article IX, § 1(1) of the
constitution, which allows regulation of trade and the use and
disposition of property, if the Commissioner of Indian Affairs
approves of it. However, as the panel pointed out, that language
appears to do no more than allow for regulation of “consensual
commercial dealings between tribal members and nonmembers.”
Bugenig I, 229 F.3d at 1216.
Appendix A—42
do exist, and a tribe whose jurisdiction does not extend to non-
Indian land when they do exist might well find that it could not
“*protect tribal self-government or . . . control internal
relations.”” Atkinson Trading, _U.S.at__, 121 S. Ct. at 1835
(20011) (citation omitted). In that sense, then, it is perfectly
reasonable to believe that when the Tribe drafted its
constitution, it intended to reach out and accept all jurisdiction
that properly belonged to it, but there is no reason to believe
that Congress read the constitution’s bland language as a power
grab over land and peoples uot related to the Tribe itself or to
its government. The Tribe simpiy could not authorize itself to
do that. We should not act as if it could, or as if Congress
thought that the Tribe had tried to do so and then ratified the
attempt. Nor should we decide that by using the constitution’s
unexceptional language the Tribe, like a retiarius, ensnared and
skewered Congress, thereby obtaining exceptional jurisdiction.
I would, therefore, hold that the language in question, even
coupled with the ratification statute, was not an express
conferral of additional authority or jurisdiction, but, rather, a
mere confirmation of the general jurisdictional rights that every
tribe must have.’ .
That being said, I see no real need to explore the outer limits of
the meaning of express authorization. Wherever they may be,
the language of the tribal constitution did not reach them. The
panel found a mere ambiguity in the language. Bugenig I, 229
F.3d at 1216-17. With all due respect, I believe that in doing so
> Incidentally, when the provision in question is read as a whole it
can also be seen as an express liynitation of jurisdiction to land that
is held “by or for the Hoopa Valley Indians.” That is, when it refers
to “other lands” acquired “by or for” the Indians, implicit in that is
the thought that the words “all lands within the confines of . . .
Reservation boundaries” also concerns those that are “by or for” the
Hoopa Valley Indians. I eschew that reading, however, lest it
foreclose tribal jurisdiction under circumstances when the Montana
exceptions would allow it. .
Appendix A-43
it conceded too much. Because it did, however, the panel felt
the need to press on. I consider that to be a divagation, but to
those who are interested in exploring the subject, I commend
the panel’s discussion. See id. at 1216-19.
Once the express authorization issue is resolved as | have
resolved it, the next question is whether the Tribe’s desire to
protect the area in question is sufficient to bring its assertion of
regulatory power over non-Indian lands within the Montana
exception for “conduct [that] threatens or has some direct effect
on the political integrity, the economic security, or the health or
welfare of the tribe.” Montana, 450 U.S. at 566, 101 S. Ct. at
1258. As the Court has told us, that would require that the
impact of the non-Indian conduct was “demonstrably serious”
and regulation was necessary to “protect tribal self-government
or to control internal relations.” Atkinson Trading, U.S. at
__, 121 S. Ct. at 1835 (2001) (citations and internal quotation
marks omitted). The district court did not really explore those
issues which are, to say the least, fact intensive. Thus, I would
remand this case so that the district court could further develop
the record and decide in the first instance whether the exception
does apply.
In sum, it seems plain to me that the Hoopa Valley Tribe’s
constitution could not, and did not, reserve or confer upon the
tribe what it did not have and could only obtain through a
separate express gift from Congress—plenary jurisdiction over
other peoples’ lands. It seems equally plain that on its face the
constitution did no more than reserve all of the jurisdiction that
it could reserve—jurisdiction over tribal lands and, in special
circumstances, jurisdiction over non-tribal lands as well. So
plain it seems, it would take a marvelous act of interpretation,
bordering on thaumaturgy, to read the constitution as expanding
Appendix A—44
the Tribe’s jurisdictional reach beyond the norm. There is no
reason to believe that Congress did so.‘
Thus, I respectfully dissent.
‘ Because my framing of the nature of the problem may mislead
some regarding my position, see for example the majority opinion at
12898, let me be, perhaps redundantly, explicit. I would not hold that
an inattentive or ill-informed Congress misunderstood the plain
meaning of its own enactment, or the proper reading of the
provisions of the tribal constitution. 1 would hold, instead, that the
plain and proper reading of the tribal constitution is what I have
already indicated, and that Congress must be deemed to have
upon us.
Appendix B—1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FILED: February 28, 2001
ROBERTA BUGENIG, )
) No. 99-15654
Plaintiff-Appellant, )
) DC No. CV-98-03409-CW
v. )
) ORDER
HOOPA VALLEY TRIBE; )
THE HOOPA VALLEY )
TRIBAL COUNCIL; THE )
TRIBAL COURT OF THE )
HOOPA VALLEY TRIBAL +)
RESERVATION; BYRON )
NELSON, Jr.. HONORABLE )
JUDGE OF THE HOOPA )
VALLEY TRIBAL COURT; _)
MERV GEORGE, CHAIRMAN)
OF THE HOOPA VALLEY
TRIBAL COUNCIL,
BEFORE: SCHROEDER, Chief Judge.
Upon the vote of a majority of nonrecused regular active
judges of this court,’ it is ordered that this case be reheard by
the en banc court pursuant to Circuit Rule 35-3. The three-
' Judge Fisher was recused.
Fie ey a
2h J
2 phar .< -
ERE eae ae S
cited as precedent by or to this
Appendix B-2
not be
court of the Ninth Circuit, except to the
the en banc court.
judge panel opinion
court or any district
extent adopted by
nes
+o
3
ab
+
Be OT B®
Appendix C—1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTA BUGENIG,
Plaintiff-Appellant,
No. 99-15654
v.
D.C. No.
CV-98-03409-CW
OPINION
)
)
)
)
HOOPA VALLEY TRIBE; )
THE HOOPA VALLEY )
TRIBAL COUNCIL; THE )
TRIBAL COURT OF THE )
HOOPA VALLEY TRIBAL _)
RESERVATION; BYRON )
NELSON, Jr.. HONORABLE)
JUDGE OF THE HOOPA )
VALLEY TRIBAL COURT; _)
MERV GEORGE, CHAIRMAN)
OF THE HOOPA VALLEY _)
TRIBAL COUNCIL, )
Defendants-Appellees. )
)
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted
July 18, 2000—Seattle, Washington
Filed October 3, 2000
Appendix C-2
Before: Thomas H. Reaviey,’ Diarmuid F. O’Scannlain, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge O’Scannlain
SUMMARY
Government Law/Native Americans
The court of appeals reversed a judgment of the district
court and remanded. The court held that an Indian tribe can not
regulate timber harvesting on fee-patented private property
within the reservation boundary.
The Hoopa-Yurok Settlement Act of 1988 (Settlement
Act) resolved conflicts between the Hoopa and Yurok Indian
tribes, partitioned an Indian reservation into two parts, one for
each of these tribes, and “ratified and confirmed” existing
governing documents of appellees the Hoopa Valley
Indian Tribe (Tribe) and the Hoopa Valley Tribal Council (Tribal
Council). The Tribal Council adopted a forest management/
timber harvest plan prohibiting all logging within a half-mile
buffer zone around the sacred White Deerskin Dance Site and
the trail leading to it. Appellant Roberta Bugenig, a
nonmember of the Tribe and a non-Indian, shortly after estab-
lishment of the buffer zone, purchased in fee simple forty acres
of land located within the Hoopa Valley Reservation and the
buffer zone. The state of California issued Bugenig a logging
permit for her land. The Tribe filed suit against Bugenig in the
Hoopa Valley Tribal Court (Tribal Court) seeking injunctive
relief and damages resulting from her logging activities in
’ The Honorable Thomas H. Reaviey, Senior United States Circuit
__ Judge for the United States Court of Appeals, Fifth Circuit, sitting by
designation.
Appendix C-3
violation of the forest management plan. The state revoked her
logging permit. The Tribal Court found that the Tribe had
jurisdiction over Bugenig’s land and permanently enjoined her
from harvesting timber in the buffer zone. Bugenig sought
declaratory and injunctive relief against the Tribe and various
tribal defendants in federal district court. |
The district court granted the Tribe’s motion to dismiss
Bugenig’s action, finding that Congress conferred upon the
Tribe the authority to regulate Bugenig’s land in the Settlement
Act, which “ratified and confirmed” tribal governing documents
that asserted tribal jurisdiction over nonmembers.
[1] Nothing in the Settlement Act itself explicitly
conferred upon the Tribe jurisdiction to regulate nonmembers.
The legislative history contained no indication that Congress
considered giving or intended to give the Tribe authority to
exercise jurisdiction over fee-patented land owned by
non-Indians such as Bugenig.
[2] Language in the Tribal Constitution, which was
“ratified and confirmed” by the Settlement Act potentially, but
not definitively, delegated this authority to the Tribe.
[3] There must be express authorization for an Indian tribe
to exercise authority over nonmembers.
[4] There are few examples of congressional delegation of
authority to tribes.
[5] Federal law expressly delegates power to Indian tribes
to regulate the distribution of alcoholic beverages in “Indian
country,” defined as Indian reservation land, “notwithstanding
the issuance of any patent.” This recognized delegation
language is conspicuously absent from the Settlement Act.
- [6] Congress can make express delegations of power to
Indian tribes to regulate the actions of nonmembers, but
because of the presumption against tribal jurisdiction over
Appendix C-4
nonmembers, any such delegation must truly be express. If
Congress uses the “notwithstanding the issuance of any patent”
proviso, which is an easily invoked gold standard for
delegation, then an appropriate delegation has been made. Ifa
tribe claims that some other statutory language represents a
conferral of jurisdiction, however, any such alternative
language must, on its face, represent a pellucid delegation of the
claimed authority.
[7] The provision of the Settlement Act relied upon by the
Tribe for its authority to regulate timber harvesting on
Bugenig’s property, which contained no explicit authorization
of jurisdiction, but simply incorporated by reference tribal
documents that were themselves subject to varying
interpretations, fell well short of the required standard.
[8] An Indian tribe may have the authority to regulate the
conduct of nonmembers through either congressional delegation
or inherent tribal authority.
[9] As a general proposition, the inherent sovereign
powers of an Indian tribe do not extend to the activities of
nonmembers of the tribe. There are two narrow exceptions
to this general rule: Tribes may exercise civil jurisdiction
over nonmembers when (1) nonmembers enter consensual
relationships with the tribe or its members, through commercial
dealing, contracts, leases, or other arrangements; or
(2) nonmembers engage in conduct on fee lands within a tribal
reservation that threatens or has some direct effect on the
political integrity, the economic security, or the health or
welfare of the tribe.
[10} At issue in this case was whether the Tribe’s exercise
of regulatory jurisdiction over Bugenig’s land through
enforcement of the buffer zone could be upheld under the
second exception, which is narrowly construed. This exception
allows for tribal jurisdiction over nonmembers only to the
Appendix C—5
extent that such authority is necessary to protect self-
government or contro] internal relations.
[11] The Tribe’s regulation of Bugenig’s use of her
fee-owned land, even if justified by reference to some tribal
interest, did not implicate tribal self-government or internal
tribal relations. The exception did not apply.
COUNSEL
James S. Burling (argued), Pacific Legal Foundation,
Sacramento, California, for the plaintiff-appellant.
Thomas P. Schlosser (argued), K. Allison McGaw, Morriset,
Schlosser, Ayer & Jozwiak, Seattle, Washington, for the
defendants-appellees.
Ethan G. Shenkman, Anne R. Traum, United States Department
of Justice, Environment and Natural Resources Division,
Washington, D.C.; Sandra J. Ashton, Office of the Solicitor,
United States Department of the Interior, Washington, D.C., for
amicus United States of America.
OPINION
O’SCANNLAIN, Circuit Judge:
This case presents questions of Indian law regarding the
scope of tribal jurisdiction over the activities of nonmembers:
specifically, to what extent can the tribe regulate land use of
fee-patented private property within a reservation boundary?
Se
Appendix C-6
]
In 1864, the Superintendent of Indian Affairs set aside the
Hoopa Valley and its adjacent mountains, located in north-
western California, as the Hoopa Valley Indian Reservation.
The boundaries of the original reservation, defined by statute in
1876, were subsequently extended by executive order in 1891.
The expanded reservation was occupied jointly by the Hoopa
Indians and a group of non-Hoopa Indians. This arrangement
led to numerous disputes, and a great deal of litigation, over the
proper allocation of political authority and reservation income
(primarily from the sale of timber) between the two groups. See
Short v. United States, 661 F.2d 150, 151-53 (Ct. Cl. 1981)
(describing the history of the Hoopa Valley Indian Reservation
and the disputes between the Hoopa and non-Hoopa Indians);
Puzz v. United States, No. C80-2908-THE, 1988 WL 188462,
at *1-2 (N.D. Cal. April 8, 1988) (same).
Congress attempted to resolve these conflicts through
passage of the Hoopa- Yurok Settlement Act of 1988, 25 U.S.C.
§§ 1300i-1300i-11 (“the Settlement Act”). The Settlement Act
partitioned the expanded reservation into two parts: (1) the
original reservation as defined in 1876, which was sev aside as
the Hoopa Valley Indian Reservation (“the Reservation”); and
(2) the extension added in 1891, which was set aside as a
reservation for a newly recognized tribe of non-Hoopa Indians
called the Yurok Tribe. See id § 1300i-1 (partitioning the
expanded reservation); id. § 1300i-8 (recognizing the Yurok
Tribe). The Settlement Act also provided that (1) “[t]he
existing governing documents of the Hoopa Valley Tribe and
the governing body established and elected thereunder, as
heretofore recognized by the Secretary [of the Interior], are
hereby ratified and confirmed,” id § 1300i-7; and (2) the
“status as an Indian tribe” of the newly recognized Yurok Tribe
“is hereby ratified and confirmed,” id. § 1300i-8(a)(1).
Appendix C-7
The Hoopa Valley Tribe (“the Tribe”) is a federally-
recognized Indian tribe. The Tribe is organized under a
constitution and amendments approved by the Secretary of the
Interior and is governed by the Hoopa Valley Tribal Council
(“Tribal Council”), pursuant to the Hoopa Valley Tribal
Constitution.
Every other summer, the Tribe holds its well-known
White Deerskin Dance, a ten-day dance dedicated to “world
renewal.” The dance is a public event imbued with cultural,
social, and religious significance for the Tribe. The dance,
which is accompanied by feasting and celebration, takes place
at the sacred White Deerskin Dance Site (“the Site”) on Bald
Hill, as well as at four other locations throughout the
Reservation.
On January 28, 1995, after providing notice to affected
land owners and holding public hearings, the Tribal Council
adopted a forest management/timber harvest plan prohibiting all
logging within a half-mile buffer zone around the Site and the
trail leading to it. The Tribal Council justified its action by
citing the need to preserve the integrity and sanctity of the Site.
The establishment of the buffer zone was approved by the
Bureau of Indian Affairs.
Roberta Bugenig is a nonmember of the Tribe and a non-
Indian whose ancestors migrated to the Hoopa Valley area
approximately 150 years ago. On March 22, 1995, shortly after
establishment of the half-mile buffer zone around the Site,
Bugenig purchased in fee simple forty acres of land located
within the Reservation’s external boundaries and the buffer
zone. Non-Indians such as Bugenig own less than three percent
of the land within reservation boundaries.
Bugenig sought to harvest some second-growth timber on
less than three acres of her forty-acre parcel in order to help pay
for the construction of her retirement residence. On June 19,
1995, Bugenig applied to the State of California (“the State”)
Appendix C-8
for a logging permit to harvest trees selectively on her land.
Also on June 19, Bugenig appeared before the Tribal Council
to request a hauling permit to transport harvested timber on a
tribal road running over reservation land. The Tribal Council
denied her request for a hauling permit.
After receiving a logging permit from the State in early
July 1995, Bugenig sent a check for $140 to the Tribal Council
on July 24, 1995, as intended payment for a hauling permit. On
July 26, Bugenig began cutting down and harvesting trees on
her land. On July 28, the Tribal Council returned Bugenig’s
check and ordered her to cease and desist from logging inside
the buffer zone.
On August 3, 1995, the Tribe filed suit against Bugenig in
the Hoopa Valley Tribal Court (“Tribal Court”), seeking
injunctive relief and damages resulting from her logging
activities in violation of the forest management plan. The
Tribal Court issued a temporary restraining order that same day,
followed a week later by a preliminary injunction barring
Bugenig from harvesting timber on her land. On October 10,
1995, the State revoked Bugenig’s logging permit, explaining
that “no timber operations are allowed on significant historical
or archeological sites [defined as] sites that have significant or
religious importance to California Indians.”
On July 11, 1996, the Tribal Court held that the Tribe has
jurisdiction over Bugenig’s land, and it permanently enjoined
her from harvesting timber in the buffer zone, The Tribal Court
also ordered Bugenig to clean her property, to cooperate with
the Hoopa Valley Tribal Forestry Department in developing a
reforestation plan, and to pay the Tribe’s costs. Bugenig was
Appendix C-9
subsequently found in contempt for failing to comply with the
Tribal Court’s order.’
Bugenig appealed the Tribal Court’s decision to the
Northwest Regional Tribal Supreme Court (“Tribal Supreme
Court”). On April 23, 1998, the Tribal Supreme Court affirmed
~ the Tribal Court’s holding that the Tribe has jurisdiction over
Bugenig’s activities and her land. The Tribal Supreme Court
based its decision on (1) the second exception to the main rule
of Montana v. United States, 450 U.S. 544 (1981);? and (2) the
Settlement Act.
On September 4, 1998, having exhausted her remedies
within the tribal court system, Bugenig filed suit in federal court
against the Tribe and various tribal defendants. Bugenig sought
declaratory and injunctive relief against the Tribe’s exercise of
regulatory jurisdiction over her land use and the tribal courts’
exercise of adjudicatory jurisdiction over her disputes with thé
? The Tribal Court’s injunction remains in effect, and a lien has
been placed on Bugenig’s property for the collection of the Tribal
Court’s $190 fine for contempt. The State’s revocation of Bugenig’s
logging permit does not render this case moot, because it is possible
that Bugenig will apply for a new logging permit and begin to
harvest timber on her property if the injunction is lifted. See Allee v.
Medrano, 416 U.S. 802, 810 (1974).
> As discussed infra, the first Montana exception permits certain
tribal regulation of “the activities of nonmembers who enter
consensual relationships with the tribe or its members,” while the
second exception authorizes tribal jurisdiction over nonmember
conduct when such conduct “threatens or has some direct effect on
the political integrity, the economic security, or the health and
welfare of the tribe.” 450 U.S. at 565-66. The Tribal Supreme Court
reversed a portion of the Tribal Court’s decision finding the first
Montana exception applicable and affirmed as to the applicability of
the second exception.
Appendix C-10
Tribe. The Tribe filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6).
The district court granted the Tribe’s motion to dismiss.
The district court held that through passage of the Settlement
Act, which “ratified and confirmed” tribal governing documents
- that assert tribal jurisdiction over nonmembers, Congress
conferred upon the Tribe the authority to regulate Bugenig’s
land. Because it found express congressional authorization for
the Tribe’s exercise of jurisdiction, the district court did not
reach the issue decided by the tribal courts regarding the Tribe’s
claim of inherent authority to regulate under the second
Montana exception.
Bugenig filed this timely appeal.‘
I
We begin by addressing whether the relevant section of
the Settlement Act relied upon by the Tribe and the district
court constitutes an “express authorization by federal statute or
treaty [of] tribal jurisdiction over the conduct of nonmembers.”
Strate v. A-] Contractors, 520 U.S. 438, 445 (1997).
A
The statutory provision at issue provides, in full, as
follows: “The existing governing documents of the Hoopa
Valley Tribe and the governing body established and elected
thereunder, as heretofore recognized by the Secretary, are
hereby ratified and confirmed.” 25 U.S.C. § 1300i-7.
* The United States, which did not participate in the district court
proceedings, submitted an amicus cur
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