The Power Source of a Tribe Seeking to Achieve World Renewal and the Protection of Its Natural and Cultural Resources

By Gingrich, Jennifer | Environmental Law, Winter 2003 | Go to article overview

The Power Source of a Tribe Seeking to Achieve World Renewal and the Protection of Its Natural and Cultural Resources


Gingrich, Jennifer, Environmental Law


I.   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. …

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