The power source of a tribe seeking to achieve world renewal and the protection of its natural and cultural resources.

• Author: Gingrich, Jennifer
• Position: Case Note

1. INTRODUCTION II. INHERENT SOVEREIGNTY AND THE PROTECTION OF SIGNIFICANT CULTURAL AND NATURAL RESOURCES A. Importance of Tribal Authority to Protect Natural Resources and Cultural and Historical Sites B. The Hoopa Valley Tribe's Timber Management Plan and White Deerskin Dance Site C. Diminished Tribal Inherent Sovereignty 1. The Allotment Era and Its Lasting Impact on Tribal Inherent Sovereignty 2. Limitations on Inherent Sovereignty and Civil Jurisdiction D. Protection of the Hoopa Valley Tribe's Political Integrity and Tribal Welfare 1. Application of Montana's Second Exception 2. Application of Montana's Second Exception and Brendale's Support of Tribal Land Use Regulatory Authority 3. The Need to Revise the Standard for Exercising Tribal Land Use Zoning Authority III. CONGRESSIONAL DELEGATION OF AUTHORITY OVER NON-INDIAN FEE LAND A. The Ninth Circuit Rehearing En Banc: A Straightforward Express Congressional Delegation 1. Interpretation of the Hoopa-Yurok Settlement Act 2. The Hoopa Valley Tribe's Constitution--A Governing Document B. The Ninth Circuit Three-Judge Panel Decision: Express Delegation and the Application of the "Clear Statement Rule" 1. The Panel's Analysis of How "Express" Congressional Delegation Must Be 2. Canons of Construction C. Implications for Tribal Constitutions Approved by the Bureau of Indian Affairs D. The Message Sent by the Ninth Circuit En Banc to Tribes in Its Finding of Congressional Delegation IV. CONCLUSION I. INTRODUCTION

   If you believed restoring balance to the earth and achieving world renewal required your community to carry out a ceremonial dance incorporating elements of the natural world at a location significant to your community's origins, would you not seek to protect that site from environmental degradation? The White Deerskin Dance is a central religious practice and cultural tradition of the Hoopa Valley Tribe. (1) The Hoopa perform this ceremony to achieve "world renewal," not only for the Hoopa, but "for all people." (2) In 1995 the Tribe, as part of a ten-year forest management plan, prohibited logging activities within a half-mile buffer zone surrounding its most sacred dance site and the trail leading to the sacred site. (3) Exercising jurisdiction over its reservation pursuant to its constitution, (4) the Tribe enacted logging restrictions within the buffer zone to protect the sacred White Deerskin Dance site and trail as part of the Tribe's larger efforts to protect sacred sites within the boundaries of its reservation. (5) The Tribe gave notice and held public hearings regarding the timber management plan. (6)

   Roberta Bugenig, a non-Indian landowner on the reservation who wanted to log on a portion of her land located within the area of the reservation subject to the timber management plan, challenged the Tribe's exercise of regulatory authority over her property. (7) In response, the Tribe exercised its regulatory authority, claiming inherent sovereignty as well as congressionally authorized tribal constitutional powers. (8) The Tribe asserted that its constitution, as part of the Tribe's "governing documents," had been "ratified and confirmed" by Congress through the Hoopa-Yurok Settlement Act of 1988 (Settlement Act). (9) The Northwest Regional Tribal Supreme Court for the Hoopa Valley Tribal Court of Appeals (Tribal Supreme Court) affirmed the Hoopa Valley Tribal Court's finding of regulatory jurisdiction over non-Indian fee land on the reservation based on congressional authorization and inherent sovereignty. (10) The United States District Court for the Northern District of California affirmed after finding congressional delegation. (11) A Ninth Circuit three-judge panel reversed the district court and adopted a clear statement rule. The rule created a presumption against congressional delegation of authority over non-Indians in the absence of explicit language. (12) The panel also found the Tribe lacked jurisdiction based on inherent sovereignty. (13) In a subsequent opinion, the Ninth Circuit, sitting en banc, reversed the three-judge panel and found congressional delegation. (14) Thus, the Tribe ultimately prevailed in establishing its authority over the entire reservation, including non-Indian fee land. The United States Supreme Court recently denied Ms. Bugenig's petition for certiorari. (15)

   Throughout the nation, American Indian tribes face ongoing and pervasive threats to theft ability to self-govern and to protect and preserve theft people, theft land, and theft resources. (16) Many tribes face widespread ecological threats on theft reservations, leaving theft lands and resources subject to degradation and destruction by pollution, exploitation, and development. (17) Tribal governments are attempting to implement comprehensive environmental regulatory programs but have been hindered by theft precarious relationship with Congress and the pervasive effects of the Supreme Court's judicial activism. (18) The protection of cultural and religious resources is a significant and unique tribal interest not readily separable from the interest tribes have in environmental regulation. (19)

   In Part II, this Note examines the scope of inherent sovereignty and tribal interests in protecting cultural and natural resources and regulating land use within reservation boundaries. (20) The discussion addresses the basis for tribal inherent sovereignty and the judicially imposed limitations that have inhibited tribes from exercising civil regulatory jurisdiction within their reservations. Part II explores why the Ninth Circuit should have decided Bugenig v. Hoopa Valley Tribe based on inherent tribal authority. This Part argues that because the Ninth Circuit decided Bugenig on the basis of congressional delegation, the court has relegated the protection of cultural and natural resources vital to tribal identity and welfare to Congress and the courts rather than to the tribes themselves. (21) Part III investigates congressional delegation of authority to tribes in light of the Ninth Circuit's en banc rejection of the panel's standard requiring an explicit congressional delegation of authority. (22) This Note concludes by arguing that tribal regulatory authority should be interpreted to include tribal regulation of lands within reservation boundaries in order to protect both the integrity of tribal natural resources and to safeguard tribal cultural and historical sites. Further, this Note argues that the analyses and presumptions involved in determining inherent sovereignty and congressional delegation should be kept separate in order to give effect to congressional intent. (23)

2. INHERENT SOVEREIGNTY AND THE PROTECTION OF SIGNIFICANT CULTURAL AND NATURAL RESOURCES

   Tribes such as the Hoopa Valley Tribe should be able to protect their natural resources and cultural and historical sites by exercising regulatory authority based on their inherent sovereign powers. (24) However, the effects of the Allotment Era and judicial limitations on inherent sovereignty and civil jurisdiction hinder tribes' ability to exercise inherent sovereignty. (25) Specifically, judicial affirmation of inherent tribal sovereignty has been narrowly applied to tribes seeking to exercise jurisdiction over non-Indians. (26)

   In Bugenig, the Ninth Circuit reversed en banc an earlier three-judge panel decision and found Congress had expressly delegated authority over non-Indian fee land within the reservation to the Tribe, entitling the Tribe to enact a timber management plan to protect its sacred cultural and historical site. (27) Although this decision apparently corrected the Ninth Circuit three-judge panel's flawed and overly restrictive approach to determining an express congressional delegation, the fact that the Tribe's authority was decided on the basis of congressional delegation rather than tribal inherent sovereignty highlights recent judicial restrictions on tribes' ability to exercise inherent sovereignty. The Ninth Circuit's decision also demonstrates the limitation of the second exception to the rule of Montana v. United States. (28) The Montana rule presumes that tribes lack regulatory jurisdiction over non-Indian activities on non-Indian fee land. (29) The second exception to the Montana rule provides that a tribe may exercise inherent authority over "non-Indians on fee lands within the 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." (30)

   Although the Ninth Circuit en banc resolved Bugenig on the basis of congressional delegation, the court could have appropriately decided the case on the basis of tribal inherent sovereignty under the second exception to the Montana rule. (31) The Tribe's ordinance was integral to protecting the Tribe's political integrity and tribal welfare and thus met the second exception standard. (32) Alternatively, the Tribe's authority to enact the ordinance could have been determined on the basis of land use zoning under Montana's second exception according to Brendale v. Confederated Tribes and Bands of the Yakima Nation. (33) Although the land use zoning alternative is less protective of tribal sovereignty, the failure of the Ninth Circuit three-judge panel to give effect to Brendale on the facts in Bugenig suggests a need for the Supreme Court to provide greater clarity and possibly a broader interpretation of tribal land use zoning authority that allows for greater tribal control. (34)

   A. Importance of Tribal Authority to Protect Natural Resources and Cultural and Historical Sites

   Effective environmental and natural resource management on reservations is a central issue for many tribal governments and is a strong tribal interest. (35) When tribes manage their environment and natural resources, their policy decisions tend to reflect uniquely tribal cultural values because tribal cultures are often rooted in the natural world...