The U.S. Ninth Circuit Court of Appeals has reversed a lower court judgment giving an Indian tribe the right to regulate the use of fee-patented private property within a reservation boundary. The unanimous three-judge panel ruled that an Indian tribe has the authority to regulate land owned by nonmembers only when given specific Congressional approval or when then land use directly affects the tribe's political integrity, economic security, or health and welfare. The case involved a small timber harvest in the Hoopa Valley Indian Reservation in Humboldt County. In January 1995, the Hoopa Valley Tribal Council adopted a forest management/timber harvest plan. It prohibited all logging within a half a mile of the White Deerskin Dance Site, where the tribe conducts a 10-day dance dedicated to world renewal every two years. Only two months later, Roberta Bugenig purchased in fee simple 40 acres within the reservation — and within the new no-harvest buffer zone. In July 1995, Bugenig received a state permit to selectively harvest three acres of second-growth timber on her parcel. She sought a hauling permit from the Tribal Council so she could transport timber on a tribal road, but the council denied her application. Bugenig began cutting trees anyway. The Tribal Council ordered her to stop and soon filed a lawsuit at the Hoopa Valley Tribal Court, which issued an injunction to halt the logging. In October, the state revoked Bugenig's permit, citing the Indians' protests. In 1996, the Tribal Court ruled that the Tribal Council had jurisdiction over Bugenig's land and permanently enjoined her from harvesting timber. Bugenig appealed to the Northwest Regional Tribal Supreme Court, which upheld the lower Tribal Court in 1998. Bugenig then sued in federal court, seeking declaratory and injunctive relief against the Tribe's exercise of regulatory jurisdiction and the Tribal Court's exercise of adjudicatory jurisdiction. U.S. District Court Judge Claudia Wilken granted the Tribe's motion to dismiss the lawsuit. On appeal, however, the Ninth Circuit ruled that the two bases on which the Tribe asserted jurisdiction where not applicable in this case. The Tribe asserted jurisdiction based on the Hoopa-Yurok Settlement Act of 1988, 25 U.S.C. §§1300i-1300i-11. The Settlement Act ended a century-old dispute between the Hoopa Indians and the Yurok Tribe by dividing the reservation into two parts, and by ratifying the governing bodies of both Tribes. Judge Wilken ruled that the Settlement Act gave the Hoopa Valley Tribe jurisdiction over all land within the boundaries of the reservation, including Bugenig's. The Ninth Circuit disagreed. Only specific Congressional authority could give the Tribe jurisdiction over private lands. "[T]he 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.' This recognized delegation language is conspicuously absent from the Settlement Act section relied upon by the Tribe," Circuit Judge Diarmuid O'Scannlain wrote. The judge cited United States v. Mazurie, 419 U.S. 544 (1975), and Rice v. Rehner, 463 U.S. 713 (1983), as the only two Supreme Court cases directly on point. The second basis for the Tribe's jurisdiction was the "Montana exception," which gives Tribes jurisdiction when "nonmembers engage in conduct on fee lands within a tribal reservation that ‘threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.'" (Montana v. United States, 450 U.S. 544 (1981).) The Ninth Circuit called this exception "exceedingly narrowly." Bugenig's logging did not threaten the Tribe's ability to govern itself, nor would it harm the tribe's health and welfare, the court held. "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," O'Scannlain wrote. The court rejected that far-reaching interpretation. The Case: Roberta Bugenig v. Hoopa Valley Tribe, No. 99-15654, 00 C.D.O.S. 8131, 2000 Daily Journal D.A.R. 10823, filed October 3, 2000. The Lawyers: For Bugenig: James Burling, Pacific Legal Foundation, (916) 362-2833. For Thomas Schlosser, Morriset, Schlosser, Ayer & Jozwiak, (206) 386-5200.