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WEDNESDAY, SEPTEMBER 12, 2001

In a turn-around for the protection of a sacred site, a split panel of the 9th Circuit Court of Appeals on Tuesday ruled that the Hoopa Valley Tribe can prevent a non-Indian from logging on the northern California reservation.

Previously, a three-judge panel of the court said the tribe had no authority over Roberta Bugenig, who owns 40 acres of fee land within the reservation. Reversing a lower court decision, the court last October said protection of land located near the tribe's White Deerskin Dance grounds was not a valid reason to prevent Bugenig from harvesting timber on her land.

That decision wasn't a total loss for the tribe. At the time, the court said the tribe could seek protection under California law.

Nevertheless, the tribe asked the court to reconsider its ruling. A new hearing was held in June and the full panel gave its decision yesterday.

The central issue was the tribe's protection of land used for the White Deerskin dance. The ten-day ceremony 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 used for the dance. The tribe prohibited logging within the buffer zone and on a trail leading to the hill, a decision approved by the Bureau of Indian Affairs.

Bugenig later that year sought to harvest timber on her land. The tribe soon objected as did the state, who revoked her timber permit citing the right to protect religious sites.

Bugenig challenged the tribe and her case eventually made it to federal court. But the court sided with the tribe, saying an act by Congress in 1998 granted the tribe jurisdiction over non-Indians.

The 9th Circuit yesterday agreed. The law, said the court, gave full force to the Hoopa Tribe to make decisions about usage of all land located within its reservation.

"Because the Tribe possesses unique 'attributes of sovereignty,' and because the Tribe has at least some 'independent authority over the subject matter' at issue, we hold that the federal government could delegate to the Tribe its authority to protect cultural and historical resources of significance," wrote the court in a 8-3 decision authored by Judge Susan P. Graber.

Judge Ferdinand F. Fernandez dissented from the majority, along with two other members of the court. "We should expect great clarity when Congress is ceding sovereignty to entities in which those who are affected will have no say," argued Fernandez.

Finding "not a whisper" of clear guidance, Fernandez said the tribe should not have jurisdiction over non-Indians.

Given the dispute, the case may be ripe for Supreme Court Review. Bugenig is being represented by Pacific Legal Foundation, an organization which has opposed tribal authority over non-Indians in a number of high-profile Supreme Court cases.

The foundation is also aiding non-Indian farmers in the Klamath Basin dispute, which affects the Hoopa Tribe and others in northern California and southern Oregon.

Get the Case:
BUGENIG v. HOOPA VALLEY TRIBE, No 99-15654 (9th Cir. September 11, 2001)

Related Decisions:
Bugenig v. Hoopa Valley Tribe No 99-15654 (9th Cir. October 2000, Withdrawn)
Bugenig v. Hoopa Valley Tribe (US District Court. No. C-98-3409)

Relevant Links:
Pacific Legal Foundation - http://www.pacificlegal.org

Related Stories:
Tribe loses case involving sacred site (10/5)