# Petition for Writ of Certiorari — Bugenig v. Hoopa Valley Tribe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 927

## Text

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 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 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 . 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 curiae brief urging affirmance
based on inherent tribal authority pursuant to the second Montana
exception. The motion of the United States for an extension of time

to file an amicus brief, construed as a motion for leave to file an.

untimely amicus brief, is granted.

- TREN RMR yp te RPA Oe ENG RA A os es ss

Appendix C-11

[1] 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
reservations, 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 *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 to “give[ ] every clause in the document being ratified

Appendix C-12

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 land located within the boundaries of the reservation.

There is, however, a competing plausible interpretation of
the Tribal Constitution. Bugenig, relying upon language in the
Tribal Constitution asserting tribal jurisdiction over “such other
lands as may hereafter be acquired by or for the Hoopa Valley
Indians,” argues that “other lands” should be read as referring
only to “fee lands not presently owned by the tribe—land
outside the reservation boundaries and land such as
Mrs. Bugenig’s fee property.” In other words, the district
court’s and Tribe’s broad reading of “all lands” within
reservation boundaries would render superfluous the reference
to “such other lands as may hereafter be acquired by or for the
Hoopa Valley Indians.” Bugenig’s interpretation also appears
viable.

The district court additionally relied upon Article IX of the
Tribal Constitution. This provision provides that the Tribal
Council, “subject to any limitations imposed by Federal statutes
or by the Constitution of the United States,” shall have the
power “[t]o 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.” The wording of this
provision, which links “conduct of trade” with the “use and

Appendix C-13

disposition of property,” suggests that it merely represents the
Tribe claiming for itself the power to regulate consensual
commercial dealings between tribal members and nonmembers
under the first exception to Montana's main rule. The district
court, however, simply accepted the tribal courts’ interpretation
of this language as a jurisdictional grant, based on a tribal
court’s power to determine the purpose, scope, and operative
effect of its own constitution.

It is worth noting that nothing in Article IX affirmatively
grants or expressly claims tribal authority to regulate non-
member activity; rather, in recognizing the possibility of a tribal
ordinance “directly affecting” nonmembers, the provision is at
best an implicit grant of power. Furthermore, as Bugenig points
out, the provision could also be easily viewed as “referjring] 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.” Cf County of Yakima v. Confederated
Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251,
264-65 (1992) (contrasting in rein jurisdiction over fee-patented
land within reservation boundaries with in personam
jurisdiction over nonmembers on the reservation). In short, to
the extent that Articles II] and IX are not free of ambiguity, the
Tribal Constitution’s status as a grant of authority to the Tribe
is less than perfectly clear.

B

[2] As the foregoing discussion indicates, there are
plausible arguments on both sides as to whether the Settlement
Act confers upon the Tribe the jurisdiction to regulate the
activities of nonmembers. There is a reasonable case to be
made for finding congressional authorization of tribal juris-
diction, but the case is by no means airtight. There is before us
language that potentially, but not definitively, carries out a
delegation of authority. We are thus confronted with the

Appendix C-14

following question: What standard should be employed for
evaluating the sufficiency of a claimed delegation of
congressional authority to a tribe to regulate the activities of
nonmembers?

[3] Strate requires “express authorization” for an Indian
tribe to exercise authority over nonmembers, 520 U.S. at 445;
we have not yet had the occasion to address in detail how
“express” this delegation must be. In Burlington Northern
Railroad Co. v. Red Wolf, 196 F.3d 1059 (9th Cir. 1999), cert.
denied sub nom. Estates of Red Wolf & Bull Tail v. Burlington
Northern Railroad Co., 120 S. Ct. 1964 (2000), we touched
upon the question, but only briefly. In Red Wolf, the estates of
two Indians killed in an accident between a train and an
automobile on a right-of-way granted by-Congress to a railroad
claimed that a tribal court had civil jurisdiction over their
wrongful death actions. The estates attempted to argue that two
statutes delegated to the tribe jurisdiction over the right-of-way:
(1) the congressional grant of the right-of-way, which directs
that the “operation of such railroad shall be conducted with due
regard for the rights of the Indians”; and (2) the Indian Tribal
Justice Support Act of 1993, which provides assistance for
building tribal justice systems. Jd. at 1064. We rejected these
arguments for inferred grants of jurisdiction, holding simply
that “[t}ribal jurisdiction over nonmembers on land subject to
Montana's main rule requires express congressional authori-
zation. Neither statute contains it.” Jd.

The above discussion from Red Wolf demonstrates that we
are reluctant to find the requisite congressional authorization
through implication from statutes that do not explicitly speak in
terms of delegating authority.

[4] As for guidance from the Supreme Court and other
courts, the relevant precedents are few, in part because “[t]here
are few examples of congressional delegation of authority to
tribes.” Felix S. Cohen, Handbook of Federal Indian Law 253

Appendix C-15

(1982). In United States v. Mazur! ‘19 U.S. 544 (1975), the
Supreme Court concluded that 18 . ‘ C. § 1161 constitutes a
valid and express delegation to tribes of the authority to
regulate the distribution of alcoholic beverages on reservations.
In Rice v. Rehner, 463 U.S. 713 (1983), the Supreme Court
reaffirmed this view of § 1161. That these are the only two
cases in which the Supreme Court has squarely confronted and
expressly found congressional delegation of authority to tribes
suggests the extraordinary nature of such grants of power.

[5] In Brendale v. Confederated Tribes and Bands of the
Yakima Indian Nation, 492 U.S. 408, 433 (1989) (White, J.)
(plurality opinion), Justice White cited the following examples
of express statutory delegations of power to Indian tribes: 18
U.S.C. § 1151, 18 U.S.C. § 1161, and 33 U.S.C. § 1377(e),
(h\(1). The specific language of these provisions merits careful
consideration. Section 116] gives tribes power to make laws
regarding liquor sales in “Indian country,” which is defined as
including “all land within the limits of any Indian reservation
under the jurisdiction of the United States government,
notwithstanding the issuance of any patent, and, including
rights-of-way running through the reservation.” 18 U.S.C.
§ 1151 (emphasis added). Section 1377(e) allows tribes to be
treated as states under the Clean Water Act in setting water
standards for federal Indian reservations, with the term “federal
Indian reservation” defined as “all land within the limits of any
Indian reservation under the jurisdiction of the United States
government, notwithstanding the issuance of any patent, and
including rights-of-way running through the reservation.” 33
U.S.C. § 1377(h) (emphasis added). It is worth noting, then,
that the delegations of congressional authority to Indian tribes
that have been recognized by the Supreme Court all employ the
same standard language to achieve delegation, giving Indian
tribes authority over all land within the geographical boundaries
of the reservation, “notwithstanding the issuance of any patent.”

Appendix C-16

This recognized delegation language is conspicuously absent
from the Settlement Act section relied upon by the Tribe.

In terms of evaluating the significance of this omission,
we find highly persuasive the treatment of a similar omission in
statutory language in Arizona Public Service Co. v. EPA, 21}
F.3d 1280, 1300 (D.C. Cir. 2000) (Ginsburg, J., concurring in
part and dissenting in part). In Arizona Public Service, the D.C.
Circuit was called upon to determine whether 42 U.S.C.
§ 7601(d)(2)(B), a provision of the Clean Air Act, delegates to
Indian tribes the authority to enforce the Clean Air Act on
nonmember fee-owned land within a reservation. A majority of
the court upheld the provision as a delegation based on its
review of specific language in the statute that it found to
establish an express delegation, see 211] F.3d at 1287-92; Judge
Ginsburg dissented in part.

In his thorough and well-reasoned opinion, Judge
Ginsburg expressed the view that § 7601(d)(2)(B) contains no
express delegation of authority to tribes. He began by noting
the general rule that because “an Indian tribe lacks inherent
authority to regulate the conduct of a nonmember on land he
owns within the boundaries of the tribe’s reservation,” a tribe
may exercise such authority only by “express congressional
delegation.” Jd. at 1300 (quoting Montana, 450 U.S. at 564)
(emphasis added). Turning to the language of § 7601(d)(2)(B),
he found it insufficient to establish such a delegation, in large
part because of its failure to employ the “notwithstanding the
issuance of any patent” language that “has been a feature in the
only two cases in which the Supreme Court has found an
express delegation of authority to tribes,” namely, Mazurie and
Rice, 211 F.3d at 1301-02. He offered the following analysis:

One important indication that the Congress did _
not intend this phrase as an express delegation is
that it used the Court tested “notwithstanding”
provision in [42 U.S.C. § 7410(0)} but not in

Appendix C-17

[§ 7601(d)(2)(B)}. .... I do not believe that the
Congress, obviously aware that it could enlarge tribal
authority over nonmember lands only through an
express delegation, would include the formulaic
“notwithstanding” proviso—the gold standard for
such delegations—in the narrower of the two
sections, and then use an obscure and
never-before-attempted formulation to accomplish
the same result in the broader of the two sections.

Id. at 1302-03. The above reasoning applies to the instant case.
Not only does the Settlement Act fail to include the “gold
standard” of delegation in the form of the “notwithstanding”
proviso, but the provision relied upon by the Tribe, unlike
§ 7601(d)(2)(B), does not even reflect on its face any
congressional consideration of the proper scope of tribal
authority. If § 7601(d)(2)(B) is accurately described as an
“obscure and never-before-attempted formulation” for
delegation, § 1300i-7’s ratification and confirmation of tribal
documents is obscurer still.

[6] Supreme Court precedent establishes the existence of
a presumption against tribal jurisdiction over nonmembers:
“exercise of tribal power beyond what is necessary to protect
tribal self-government or to contro] internal relations is
inconsistent with the dependent status of the tribes, and so
cannot survive without express congressional delegation.”
Montana, 450 U.S. at 544 (emphasis added). As Montana and
Strate make clear, tribal jurisdiction over nonmembers is highly
disfavored in light of the tribes’ “diminished status as
sovereigns.” Jd. at 565. In light of this presumption against
such extraordinary grants of power, we believe it appropriate to
adopt in this context a “clear statement rule”: 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 nonmembers, any such
delegation must truly be “express.” If Congress uses the

Appendix C-18

“notwithstanding proviso,” which is an easily invoked,
Court-approved “gold standard” for delegation, then an
appropriate delegation has been made. If a 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] Although the district court properly recognized that a
statute’s plain meaning is the starting and ending point for
analysis in cases of statutory construction, its approach to
interpreting the Settlement Act found plain meaning where
none was to be found. The district court should have reviewed
the claimed grant of congressional authority in light of the
well-established background norms against which congressional
delegations of authority to Indian tribes must be evaluated.
These norms dictate that, when a tribe claims that Congress has
delegated to it the authority to exercise jurisdiction over
nonmembers, the claimed statutory delegation is subject to a
clear statement rule. The provision of the Hoopa-Yurok
Settlement Act relied upon by the Tribe—which contains no
explicit authorization of jurisdiction, but simply incorporates by
reference tribal documents that are themselves subject to
varying interpretations—falls well short of the required
standard.”

* Much of Bugenig’s argument on appeal is devoted to her claim that
Congress, even if it had sought to do so, lacked the constitutional
authority to delegate regulatory power over her land to the Tribe;
such authority, she contends, properly belongs to the State of

California under principles of federalism. In light of our holding that -

Congress did not intend nor effectuate any delegation of power to the
Tribe through its passage of the Settlement Act, we express no view
on Bugenig’s constitutional challenges. See Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)
(“The Court will not pass upon a constitutional question although

(continued...)

a | BSR T RABE Ar Het PRN iris Oe

Appendix C-19
Il]

[8] Strate and Montana make clear that an Indian
tribe may have the authority to regulate the conduct of
nonmembers through either congressional delegation or
inherent tribal authority. Having found no express
congressional authorization, we must next decide whether the
Tribe has inherent authority to regulate Bugenig’s land under
the Montana analysis.

[9] In Montana, the Supreme Court set forth the “general
proposition” that “the inherent sovereign powers of an Indian
tribe do not extend to the activities of nonmembers of the tribe.”
450 U.S. at 565 (emphasis added) (stating the “main rule” of
Montana). Noting the tribes’ “diminished status as sovereigns,”
id., the Montana Court pointed to two narrow exceptions to its
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) non-
members 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.” Jd. at 565-66. Finding neither exception
applicable, the Montana Court held that the Crow Tribe lacked
the authority to regulate hunting and fishing by nonmembers on
property located within Crow reservation boundaries but owned
in fee simple by non-Indians.

[10] The issue in this case is whether the Tribe's exercise
of regulatory jurisdiction over Bugenig’s land through
enforcement of the buffer zone can be upheld under the second

* (...continued)
properly presented by the record, if there is also present some other
ground upon which the case may be disposed of.”).

Appendix C-20

Montana exception.’ The Supreme Court, in Strate, explained
the exception in the following terms:

Read in isolation, the Montana rule’s second
exception can be misperceived. Key to its proper
application, however, is the Court’s preface: ‘Indian
tribes retain their inherent power [to punish tribal
offenders,] to determine tribal membership, to
regulate domestic relations among members, and to
prescribe rules of inheritance for members. ... But
[a tribe’s inherent power does not reach] beyond
what is necessary to protect tribal self-government or
to control internal relations.’ 450 U.S. at 564.

520 U.S. at 459 (emphases added). Following Strate, we have
emphasized that “[aJlthough broadly framed, [the second
Montana] exception is narrowly construed.” County of Lewis
v. Allen, 163 F.3d 509, 515 (9th Cir. 1998) (en banc). In our
unanimous en banc decision in Allen, we held that the Nez
Perce Tribal Court lacked jurisdiction over a lawsuit brought by
a tribal member against Idaho county law enforcement officers
for false arrest, other torts, and a civil rights violation.
Rejecting the tribe’s argument for the exception’s applicability
based on the tribal interest in the safety of its members, we
explained that “[u]nder the tribe’s analysis, the exception would
swallow the rule because virtually every act that occurs on the
reservation could be argued to have some political, economic,
health or welfare ramification to the tribe. The exception was
not meant to be read so broadly.” Jd. at 515. Rather, when read
“in its proper context,” the exception allows for tribal
jurisdiction only to the extent that such authority “is necessary

® The parties agree that Montana’s main rule controls if the second
exception does not apply. The Tribal Supreme Court concluded that
the first exception was inapplicable in light of the absence of any
significant consensual relationship between Bugenig and the Tribe,
and the Tribe does not challenge this holding.

Appendix C-21

to protect self-government or to control internal relations.” Jd.
(quoting Strate, 520 U.S. at 459) (quoting Montana, 450 U.S.
at 564)); see also Montana Dep't of Transp. v. King, 191 F.3d
1108, 1114 (9th Cir. 1999) (explaining that “[t]he exception
applies when to hold otherwise would threaten ‘the right of
reservation Indians to make their own laws and be ruled by
them.’” (quoting Strate, 520 U.S. at 459)).

[11] While Bugenig’s logging of her l-nd- may well have
some political, economic, or health or welfare implications for
the Tribe, the dispositive inquiry is whether her logging
threatens to “trench unduly on tribal self-government.” Strate,
520 U.S. at 458. While we acknowledge the cultural, social,
and religious importance of the White Deerskin Dance, we
cannot conclude that Bugenig’s proposed logging is the type of
activity that triggers the second Montana exception. The
exception authorizes a tribe to do such things as punish tribe
members, regulate their domestic relations and promulgate rules
regarding tribal membership or inheritance within the tribe. See
id. at 459. These tasks are fundamentally different from a
tribe’s attempt to regulate a nonmember’s use of her fee-owned
land; regulating such land use, even when justified by reference
to some tribal interest, simply does not implicate “tribal
self-government” or “internal [tribal] relations” in the same
direct way that the activities enumerated in Strate do. Under
the Tribe’s view of the exception, a tribe could effectively
acquire general regulatory jurisdiction over nonmember land
simply through asserting an interest in protecting various sites
of claimed historical or cultural importance. The Tribe’s
interpretation of Montana would permit the exception to
“swallow the rule”—the very outcome that we warned against
in Allen. 163 F.3d at 515.

Our conclusion that the second Montana exception does
not give the Tribe jurisdiction over Bugenig’s land is strongly
reinforced by cur decision in Yellowstone County v. Pease, 96
F.3d 1169 (9th Cir. 1996). In Pease, a member of the Crow

Appendix C-22

Tribe invoked the second Montana exception to defend the
jurisdiction of the Crow Tribal Court (which had ruled that he
was not required to pay property taxes imposed by Yellowstone
County). See id. at 1176-77. We were unpersuaded:

[W]e reject Pease’s argument that the Tribe has
_ jurisdiction under the second Montana exception.
Although he concedes that this action directly
concerns only his particular property, he argues that
the overall impact of the loss of land due to potential
foreclosures could be devastating to the Tribe’s land
holdings and political integrity. This contention fails
to establish a “direct effect on the political integrity,
the economic security, or the health or welfare of the
Tribe as a whole.” As the Supreme Court has stated,
“[t]he impact must be demonstrably serious and
must imperil the political integrity, the economic
security, or the health and welfare of the tribe.”

Id. at 1176-77 (emphasis added and citations omitted). What
Pease makes clear is that when determining the applicability of
the Montana exceptions, we will not conduct an aggregation
analysis.’ See id.; see also Red Wolf, 196 F.3d at 1065 (“We do
not doubt the truth of John Donne’s observation that ‘[n]o man
is an island.’ ... However, the Supreme Court has declined to
employ this logic in conjunction with the second Montana
exception.”). Instead, we focus our attention upon the actual
impact of the individual activity over which a tribe seeks to
exercise jurisdiction.

” Perhaps the most well-known example of aggregation analysis can
be found in the Supreme Court’s interpretation of the Commerce
Clause in Wickard v. Filburn, 317 U.S. 111, 127-28 (1942) (“That
appellee’s own contribution to the demand for wheat may be trivial
by itself is not enough to remove him from the scope of federal
regulation where, as here, his contribution, taken together with that
of many others similarly situated, is far from trivial.”).

Appendix C-23

As was the case in Pease, the litigation between Bugenig
and the Tribe “concerns only [her] particular property.” 96 F.3d
at 1176. Accordingly, we do not consider “the overall impact
of the loss of [forested] land due to potential [logging],” id., but
look only to the effect that Bugenig’s logging of her own
particular parcel might have upon the Tribe’s political integrity.
Under this analysis, we cannot say that Bugenig’s logging
fundamentally threatens the Tribe’s ability to govern itself in
any way. We are confident enough in the governmental
strength of the Tribe to conclude that its political integrity
would not be “imperil[ed],” as required under Pease, by a
selective timber harvest on a parcel of less than three acres.

Furthermore, our precedents have stressed the
inapplicability of the second Montana exception in situations
where tribal jurisdiction “is not necessary to protect Indian
tribes or their members who may pursue their causes of action
in state or federal court.” Allen, 163 F.3d at 516. This
reasoning also applies here. California state law provides
protections for certain Native American tribal resources. See,
e.g., Cal. Pub. Res. Code § 5097.9 (prohibiting state agencies
from “caus[ing] severe or irreparable damage to any Native
American sanctified cemetery, place of worship, religious or
ceremonial site, or sacred shrine located on public property,

except on a clear and convincing showing that the public

interest and necessity so require”). The Tribe’s success in
obtaining relief from the State of California, in the form of the
revocation of Bugenig’s logging permit, demonstrates that
“[t]he absence of tribal jurisdiction does not leave the Tribe or
its members without redress for nonmembers’ alleged wrongs.”
Red Wolf, 196 F.3d at 1065.

Any lingering doubts as to the inapplicability of the
second Montana exception are dispelled when the instant ease

‘is measured against our most recent application of the

exception. In Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998),
we upheld against facial challenge regulations of the

Appendix C-24

Environmental Protection Agency allowing a qualifying Indian
tribe to be treated as a state for purposes of promulgating water
quality standards under the Clean Water Act. See id. at 1138.
We did so in large part based upon precedent “recogniz[ing]
that threats to water rights may invoke inherent tribal authority
over non-Indians” due to the tangible and direct impact that
such threats pose to tribal health and welfare. Jd. at 1141.

This case is quite different. Simply stated, any arguable
impact that cutting second-growth timber might have upon the
holding of a tribal dance once every two years, at a site some
distance away, “has no potential to affect the health and welfare
of a tribe in any way approaching the threat inherent in
impairment of the quality of the [tribe’s] principal water
source.” Jd. Returning to Montana’s emphasis upon political
integrity, to the extent that a government is legitimately charged
with providing certain basic services to its citizens, it is difficult
to imagine how serious threats to water quality could not have
profound implications for tribal self-government. The same
cannot be saic' of the situation here.

Finally, our recent decision in Nevada v. Hicks, 196 F.3d
1020 (9th Cir. 1999), confirms the correctness of our
conclusion as to the inapplicability of the second Montana
exception. In holding that a tribal court had jurisdiction over
state officials for tribal common law torts and certain federal
and tribal civil rights claims, we emphasized that “the incidents
underlying the instant case occurred on Indian-owned,
Indian-controlled land, over which the Tribe retained its right
to exclude non-members.” Jd. at 1027. Surveying the relevant

® A tribe’s “virtually absolute power to exciude” was crucial to the
analysis of the separate opinion of Justice Stevens in Brendale v.
Confederated Tribes and Bands of the Yakima Indian Nation, 492
U.S. 408, 433 (1989) (opinion of Stevens, J., joined by O’Connor, J.)
(“[P]roper resolution of these cases depends on the extent to which

(continued...)

Appendix C-25

precedents of the Supreme Court and this court, we noted the
strong connection between tribal power and the ownership and
contro] of land. See id at 1025-27. Because of this
relationship, an Indian tribe’s claim of jurisdiction is signifi-
cantly strengthened when the events at issue took place on land
owned and controlled exclusively by tribal members.

* (...continued)

the Tribe’s virtually absolute power to exclude has been either
diminished by federal statute or voluntarily surrendered by the Tribe
itself.”). As we have previously explained, the views expressed in
Justice Stevens’s opinion deserve careful consideration because
Justice Stevens and Justice O’Connor were the deciding votes in
Brendale. See Hicks, 196 F.3d at 1028 n.9.

Unlike Brendale, this case involves no allegation of a non-total
exclusionary power on the part of the tribe seeking to exercise
jurisdiction. Thus, the holding of Brendale with respect to the
Yakima Indian Nation’s power to zone nonmember fee land located
within the so-called “closed” area of the reservation simply does not
apply here. Although the Tribe attempts to discount the significance
of the Yakima Nation’s right to exclude in Brendale, the controlling
opinion of Justice Stevens makes its importance quite clear. See 492
U.S. at 437 (describing the difference between the “closed area” and
the “open area” as one of “critical importance”).

The Tribe stresses that the closed area in Brendale, like the area at
issue in this case, was almost entirely owned by tribal members.
Under Brendale, however, a high percentage of tribal ownership in
an area is not enough by itself to trigger tribal jurisdiction. It is also
necessary to ma

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0920%3A1. Public record. Not legal advice.