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OCTOBER 5, 2000

On Tuesday, the Ninth Circuit Court of Appeals ruled that the Hoopa Valley Tribe of California cannot prevent a non-Indian from harvesting timber on land located near one of the tribe's sacred sites.

Every year, the Hoopa tribe holds a ten-day ceremony known as the White Deerskin dance. The event holds great cultural and spiritual significance for the tribe.

Due to the dance's importance, the tribe in early 1995 enacted a half-mile buffer zone around Bald Hill, one of the four locations of the dance. The tribe prohibited logging within the buffer zone and on a trail leading to Bald Hill, a decision approved by the Bureau of Indian Affairs.

Later that year, Roberta Bugenig, a non-Indian purchased, in fee, 40 acres of land on the reservation which happened to fall within the buffer zone. She wanted to harvest some timber on her land and received a logging permit from the state of California.

But the tribe refused to grant her a hauling permit. The council ordered Bugenig to stop logging on her land and eventually filed suit against her in tribal court.

The tribe was able to stop Bugenig from cutting down trees. Soon after, the state revoked Bugenig's permit, citing the right to protect religious Indian sites.

But Bugenig fought the tribal court decision and a tribal appeals court decision by filing suit in US District Court for the Northern District of California. The court dismissed her case, ruling that the tribe had jurisdiction over non-members due to the Hoopa-Yurok Settlement Act of 1988, an act which split up the reservation between the Hoopa tribe and the newly recognized Yurok.

However, the Ninth Circuit disagreed. In its ruling, the court said that nothing in the settlement act gives the tribe the right to regulate activities of non-members.

Only Congress can grant tribes jurisdiction over non-members, but there exist exceptions to the rule. The two are known as the Montana exceptions, named for a 1981 Supreme Court case involving the Crow tribe.

The Hoopa tribe claimed the right to prevent non-Indians like Bugenig from harvesting timber on sacred land fell under the second Montana exception. Tribes can exercise control over non-members if the activity affects the political integrity, economic security, or health or welfare of the tribe.

However, the Ninth Circuit said the Hoopa's protection of sacred land doesn't pass this test. The court said to allow the tribe to claim the White Deerskin dance as affecting the tribe's self-government or internal tribal relations would "swallow the rule" and give them too much power over the activities of non-members.

Nonetheless, the court said the tribe has the opportunity to prevent persons like Bugenig from harvesting timber within the buffer zone. The court said California's law protecting sacred sites could give the tribe a way to uphold the buffer zone.

Get the Decision:
Bugenig v. Hoopa Valley Tribe (Ninth Circuit Court of Appeals. No 99-15654. October 2000)

Get the District Court Decision:
Bugenig v. Hoopa Valley Tribe (US District Court. No. C-98-3409)