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Court decision limits Hoopa authority over non-members

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HOOPA VALLEY, Calif. - In a setback for the northern California Hoopa tribe which may have national implications, the 9th Circuit Court of Appeals reversed decisions made by both Hoopa tribal courts and a United States District Court.

The decision may have set a precedent for civil cases regarding tribal authority over non-tribal members living on reservation land.

The central issue in the case Bugenig vs. Hoopa Valley Tribe is whether the tribe has the authority to halt logging on privately held land within its reservation.

Roberta Bugenig, a non-tribal member, bought 40 acres of land within the boundaries of the Hoopa Valley reservation.

Hoopa Valley tribal sources say Bugenig attempted to log more than eight acres of woodland on her property - in excess of the three-acre limit on private lands by the state of California.

Compounding the problem is that part of Bugenig's property lies in a prohibition-of-timber buffer zone established by the tribe in the 1980s to protect a sacred ceremonial area where the tribe holds its annual White Deerskin Dance, a practice that dates to pre-European contact times.

Several archaeologists and anthropologists confirm that the ceremony is one of the oldest, continuous practices in the United States.

The tribe created the buffer zone in the 1980s when some members wanted to use logging as a form of economic development. When tribal elders objected to the proximity to the ceremonial area, a compromise was reached where logging was forbidden in a one-mile-wide zone surrounding the sacred area.

The buffer zone was then mapped out and sent on to the BIA where it was approved by the United States government. The State Historic Preservation office also approved the zone, which also was registered as protected by the California Department of Forestry.

Local landowners were notified of the exact location of the buffer zone.

Not surprisingly the controversy has its roots in the attempted congressional termination of California Indian tribes in the 1950s. Many reservations were carved up into allotments to be given to individual tribal members. Since the Hoopa tribe lived in a remote area and had tenaciously clung to its lands since the arrival of American settlers, the process was never completed in Hoopa Valley.

Though the tribe managed to hold on to the majority of its tribal lands until more favorable political times came along, a small portion was individually allotted. In a story that parallels many other situations around the United States, unscrupulous non-tribal land speculators came in and bought the allotments below the market price.

Tribal sources say that though Bugenig was not one of the initial speculators, since she purchased the land in the early 1990s, she still received it below market price. Bugenig's family has held large tracts of land in Humboldt County for several generations.

The tribe was first informed of Bugenig's logging plan when she came into the tribal offices and requested a permit to cross tribal roads to bring in equipment and to haul out logs. The tribe declined to issue the permit and showed her a map pointing out that she was in the buffer zone and was thus ineligible to log her property.

Bugenig sent a check for an undisclosed amount to the tribe and continued the logging process anyway. The tribe returned the check and sued her in tribal court where an injunction was issued, but Bugenig hauled out the downed timber.

The tribal Supreme Court upheld the injunction and, having exhausted her tribal remedies, Bugenig sued in Federal District Court in Oakland.

Bugenig was represented by Pacific Legal Services, an ultra-conservative non-profit legal organization. The district judge in Oakland said the force of the law was behind the tribe and Bugenig appealed to the 9th Circuit Court of Appeals where she and her lawyers were granted a hearing before a three-judge panel.

The 9th Circuit overturned decisions of both the tribal and district courts. Judge Diarmund O'Scanlon, regarded as one of the most conservative judges on the circuit, cited the 1988 Settlement Act, which sought to confirm jurisdiction for both the Hoopa and the neighboring Yurok tribes.

"The fact that nothing in the Settlement Act itself explicitly confers upon the Tribe jurisdiction to regulate non-members raises serious questions as to how carefully Congress considered whether it was making any grant of regulatory authority to the Tribe," O'Scanlon wrote in his decision.

"I think what happened here is that some conservative judges on the 9th Circuit are trying to eliminate tribal jurisdiction over non-tribal members in civil cases," says Tom Schlosser, the Seattle-based attorney for Hoopa.

Schlosser goes on to say that tribes had already lost jurisdiction of non-tribal members in criminal cases in a 1978 court ruling and the 9th Circuit is trying to exercise the same authority over civil cases by using this case as a future precedent. Furthermore, Schlosser says the implication is that both the federal government and the tribe lack authority in the area.

Additionally Schlosser cites the Second Montana Exception in this case to authorize tribal jurisdiction over non-members. That exception refers to a 1970s case in which a precedent was established for regulating civil cases for non-tribal people on tribal lands.

Hoopa Chairman Duane Sherman says state law still protects the buffer zone. He cites protection offered by the California Department of Forestry. However, Sherman says he is alarmed at the precedent he feels will undermine tribal authority on reservation lands.

"This is a very unfortunate statement coming from the Ninth Circuit with big implications," Sherman says.

James Burling, an attorney at Pacific Legal Services who has argued the case for Bugenig, confirms that state law could prohibit Bugenig from harvesting the timber on her property. He says she will have to hire an archaeologist to study the property and has to adhere to any rules regarding protection of the area.

Burling claims the land had already been clear cut and says most of the timber on the property is second growth and is therefore not subject to certain restrictions. He says Bugenig has only felled a few trees and is no way in violation of any state forestry practices.

Both Sherman and Schlosser say the next step is to try and get an en banc hearing before every judge in the 9th Circuit. They said they feel they received an unlucky draw on the three-judge panel and are hopeful the full court will uphold the decisions of the lower courts.