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

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. 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)

II. 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. (36) Many tribal regulatory programs are developed primarily to preserve tribal cultures. (37) Tribal territory, and tribal control over the natural resources within it, is essential to perpetuating tribal culture because tribal religious and cultural practices are commonly based on the sacredness of the land. (38)

Tribes, like other sovereign entities, have a strong interest in exercising their rights of self-government and self-determination to protect the natural resources and environment within their territories. (39) Today, many tribal governments are attempting comprehensive environmental regulatory programs. The federal policies of "tribal self-determination, self-government, and self-sufficiency" support the notion of tribal environmental regulation and regulation of natural resources within tribal lands. (40) Specific statutes also support tribal control of territorial resources. (41) Tribal control over natural resources within tribal territories finds even greater support in light of the significance of the land to tribal cultural and religious practices and the relationship of these elements to tribal inherent sovereignty. (42) Unfortunately, many tribes' abilities to implement environmental regulatory programs are hindered by an uncertain trust relationship with Congress, and by restrictive, seemingly result-oriented Supreme Court decisions. (43)

Not only is tribal regulation of natural resources 'intimately connected to tribal cultural and religious practices, but the preservation of tribal cultural and religious resources is a federal concern. (44) Federal interest in preserving tribal sacred sites and traditional tribal forms of worship is evident in a variety of federal laws that protect such cultural and religious resources. (45) Courts also affirm this interest. (46) When tribal authority to regulate environmental and natural resource matters on reservations is restricted, not only are specific tribal cultural and natural resources endangered, but the cultural and political integrity of all tribes is undermined. (47)

The Hoopa Valley Tribe's regulation of logging activities on its reservation to protect a significant sacred site embodies this problem. (48) The Hoopa attempted to regulate natural resources within its reservation borders to protect a natural and historical resource uniquely tied to the cultural and religious inheritance of the Tribe. (49) Prohibiting the Tribe from protecting this site would jeopardize a central cultural ceremony that represents the Tribe's ability to achieve "world renewal," and would leave vulnerable a historical site that not only embodies a sacred ceremonial event but holds significance as to the Tribe's origins. (50) Thus, there is an inherent tribal interest in safeguarding the ceremony and associated sacred site to ensure the integrity of the tribal cultural identity and traditional practices.

B. The Hoopa Valley Tribe's Timber Management Plan and White Deerskin Dance Site

The White Deerskin Dance is a central religious practice and cultural tradition of the Hoopa Valley Tribe, which takes place every two years. (51) The ceremonial event is performed through a series of five dances held to restore balance and achieve world renewal. (52) The Tribe incorporates elements of the natural world into this renewal ceremony in celebration of the Tribe's origins in the area, which is considered "the center of the [Hoopa] world." (53) The Tribe travels on foot to this sacred ritual's final dance on the historic and sacred site within the reservation on Bald Hill. (54) Evidence suggests that this ceremonial site could be as old as fifty thousand years. (55) The White Deerskin Dance creates social and communal unity by perpetuating religious and cultural traditions and by reinforcing social order among the Tribe. (56) In establishing the buffer zone around the site, the Tribe prepared an archeological evaluation of the affected area, and the Bureau of Indian Affairs (BIA) supported the Tribe's determination of the site's historical and cultural significance. (57)

The Tribe gave notice of the no-logging restrictions of its timber management plan through publication in a local newspaper on January 25 and February 1, 1995, and by letter to landowners on Bald Hill. (58) The affected landowners on Bald Hill included tribal members, as well as non-tribal owners of six parcels of fee land. (59) This notice was sent to the Gould Family Partnership, from which Roberta Bugenig purchased her land on March 22, 1995. (60)

Despite being on notice at the time of purchase that her land was subject to the no-logging restrictions of the timber management plan, Roberta Bugenig applied to the State of California for a logging permit. (61) Because her proposed conversion of 2.5 acres of woodland to pasture was in conformance with county regulations, Humboldt County granted her a permit exemption. (62) The tribe denied her application for a hauling permit. (63) When she began logging anyway, the Hoopa Valley Tribal Court issued a preliminary injuction, and the State of California Department of Forestry and Fire Protection revoked her conversion exemption. (64) A year later, Bugenig was found in contempt of tribal court when she removed the cut trees via a tribal road without the necessary permit. (65) After challenging the permit denials in tribal court, Ms. Bugenig exhausted her remedies and sought federal judicial review of the Tribe's injunction of her logging activities. (66)

U. Diminished Tribal Inherent Sovereignty

The concept that American Indian tribes such as the Hoopa Valley possess tribal sovereignty is uniquely tied to their cultural and religious inheritance. (67) For instance, Congress has recognized the survival of cultural and religious practices and traditions as essential to the tribal "political integrity." (68) Congressional prioritization of tribal cultural and religious traditions underscores the importance of these traditions to the strength and welfare of tribal communities and to the integrity of tribal institutions. (69)

At the core of Indian law is the principle of inherent sovereignty, a principle acknowledged and affirmed through early Supreme Court decisions. (70) Traditionally, because tribal powers predate the United States Constitution, the Court held that tribal inherent sovereignty empowered tribes to self-govern within Indian country without interference of state laws. (71) The Court recognized tribes as diminished sovereigns, possessing all sovereign powers unless Congress, through its plenary powers, takes that power, or a tribe voluntarily cedes such powers. (72) Greatly limiting the scope of inherent tribal sovereignty is the theory that tribes are dependent on the United States government, (73) and that they are divested of inherent sovereignty to the extent inherent sovereignty is inconsistent with that dependent status. (74) The standard of inherent tribal sovereignty has been damaged by congressional acts abrogating tribal governmental authority and, more importantly, by the dispossession of tribal land. (75) Specifically, the Allotment Era had the most damaging impact. (76)

1. The Allotment Era and Its Lasting Impact on Tribal Inherent Sovereignty

Congress passed the General Allotment Act (77) in 1887 to "civilize" Indians by assimilating their cultures according to white agricultural traditions. (78) As a result of the Allotment Act, tribes lost almost two-thirds of their existing territory, leaving the reservations with a "checkerboard" pattern of land ownership and jurisdiction. (79) In addition to ending tribalism, the Allotment Act was designed to open lands to non-Indians who were expanding westward into lands where Indian reservations existed. (80) The Allotment Act was generally carried out through congressional acts allotting reservation land to individual Indians and Indian families. (81) The allotted lands were held in trust for a period of twenty-five years before vesting in fee simple, after which the lands were freely alienable. (82) Surplus lands not allotted to tribal members could then be sold to non-Indians. (83) Today, reservations consist of a mixture of property owned by the tribe itself, restricted trust allotment property, property owned in fee simple by tribal members, and property owned in fee simple by nonmember Indians and non-Indians. (84) This has led to inconsistent exercise of jurisdictional powers on reservations, restricting tribes' ability to exercise jurisdiction over non-Indian fee lands on reservations. (85) Allotment destroyed the majority of the Indian land base throughout the nation, and is arguably the most devastating federal policy ever adopted in relation to tribes. (86)

Even though the allotment policy has been expressly repudiated by Congress, the allotment policy remains the basis for resolving cases of tribal sovereignty and the effects of the Allotment Era, such as control over reservation land and resources, personal jurisdiction, and jurisdiction over activities that transpire on reservation lands. (87) Because of Congress's silence and its failure to provide a solution to the damage caused by allotment, the Court has been left to resolve disputes arising from the impact of the Allotment Era. (88) Failing to acknowledge that it has based much of its reasoning on "a general (and repudiated) congressional purpose rather than explicit congressional intent," the Court has shifted "blame for the erosion of tribal authority to a century-old Congress rather than where it belongs--the current Court." (89)

Ultimately, the Court's approach has greatly hindered tribal sovereignty, particularly with regard to exercising jurisdiction over non-Indians. (90) Congress's silence with regard to resolving the negative effects of allotment is conceivably a breach of Congress's trust duty to Indian tribes because Congress left tribes in the vulnerable situation that accompanies checkerboard land ownership, which greatly limited tribal control over protecting the integrity of tribal lands and resources. (91) This jeopardizes tribal rights to self-government and to maintain the integrity of their lands, thus jeopardizing resources that may be essential to the perpetuation of their cultures. This problem is exemplified in the history of the Bugenig dispute that preceded the Ninth Circuit decision en banc where the Tribe sought to exercise its right to protect the integrity of the sacred site on Bald Hill, which included six parcels of land owned in fee by non-tribal owners. (92) The question should be asked, then, if in the absence of an express congressional authorization of the Tribe's exercise of regulatory authority or other express congressional action to protect the sacred site, is Congress breaching its fiduciary duty to the Tribe by leaving the site unprotected? This inquiry is significant in light of the judicially imposed limitations on tribal exercise of inherent sovereignty and regulatory authority. (93)

2. Limitations on Inherent Sovereignty and Civil JurisdiCtion

Recent Supreme Court decisions are at odds with the founding principle of Indian law established in Worcester v. Georgia, (94) which recognized that tribes possess inherent sovereignty, and denied state jurisdictional reach into Indian country. (95) Today the general notion is that absent congressional authorization, tribes lack civil regulatory authority over non-Indian conduct; however, tribes retain authority to regulate non-Indian activity in limited circumstances. (96) The Court established the general rule that tribes lack inherent authority over non-Indians in Montana v. United States. (97)

Montana v. United States addressed the Crow Tribe's ability to regulate hunting and fishing by non-Indians on non-Indian fee land within the reservation on and near the Big Horn River. (98) The Tribe claimed authority to regulate activities of non-Indians based on its claim to title of the bed of the Big Horn River. According to the Tribe's treaty with the federal government, the Tribe's right to the riverbed was held in trust for the "use and benefit of the Tribe." (99) The Supreme Court disagreed and held that upon Montana's admission to the Union, title to the riverbed passed to the State. (100) The Court denied the Tribe's claims of tribal authority to regulate non-Indians on non-Indian fee land (101) and held that the Crow Allotment Act implicitly abrogated the Tribe's treaty right of "absolute and undisturbed use and occupation" of the land. (102) Thus the Tribe's jurisdiction did not extend to allotted lands owned in fee by non-Indians. The Court also held the Tribe's inherent sovereignty insufficient to extend to non-Indian fee lands. (103) The Court narrowly defined tribal inherent sovereignty as extending to that which is "necessary to protect tribal self-government or to control internal relations." (104)

In dicta, the Montana Court created two exceptions to this general rule, one of which left determination of tribal sovereignty vulnerable to subjective court assessments. (105) The first exception provides that tribes may have jurisdiction over "nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." (106) The second exception provides that a tribe may exercise its inherent authority over "non-Indians on fee lands within the reservation when the non-Indian conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." (107) This second exception contains broad language that conceivably protects tribal interests. However, subsequent cases illustrate the lack of clarity in the Montana exceptions and follow a trend toward increasing infringements upon tribal inherent sovereignty. (108)

The Court's restrictive approach to determining a tribe's ability to exercise regulatory jurisdiction over non-Indians on fee land hinders efforts to protect tribal land and resources, and undermines land-based aspects of inherent sovereignty. (109) Lower courts must try to make sense of this Supreme Court precedent that strongly favors non-Indian interests at the expense of traditional principles of Indian law. (110) Ultimately, the narrow reading of Montana's second exception is at odds with the unique relationship of tribal inherent sovereignty and protection of natural and cultural resources. (111) It can be presumed that, absent the delegating language of the Settlement Act, the Hoopa Valley Tribe's White Deerskin Dance site would be left vulnerable to the activities of non-Indian landowners, such as Ms. Bugenig's logging, which escape protective tribal regulatory schemes. (112) Tribes seeking to protect their culture and lands consequently face unfavorable outcomes, (113) illustrating the need for courts to acknowledge tribal inherent sovereignty as a basis for protecting tribal resources.

D. Protection of the Hoopa Valley Tribe's Political Integrity and Tribal Welfare

As discussed above, the concept of tribal sovereignty is uniquely tied to the cultural and religious inheritance of a tribe, which in turn is intimately connected to the land and resources. (114) The Ninth Circuit's en banc holding in Bugenig is limited to the fact-specific circumstances surrounding the delegation language of the Settlement Act. The holding left open the question of whether, absent direct congressional authorization, the Hoopa Valley Tribe had regulatory authority over non-Indian fee land on the basis of inherent sovereignty. (115) However, the Ninth Circuit three-judge panel addressed this issue and, finding no express congressional delegation, concluded that the Tribe lacked inherent authority under Montana's second exception. (116) In a footnote, the three-judge panel rejected Brendale as a basis for the Tribe's land use regulatory authority under Montana on the grounds that, unlike Brendale, "this case involves no allegation of a near-total exclusionary power on the part of the tribe seeking to exercise jurisdiction." (117) The three-judge panel decision arguably created a tension with Supreme Court precedent as to the scope of inherent tribal sovereignty. (118) Regardless of express congressional authorization, the facts of Bugenig should have yielded a finding of tribal regulatory jurisdiction on the basis of tribal inherent sovereignty.

1. Application of Montana's Second Exception

The basic language of the second Montana exception which allows for jurisdiction when that conduct "threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe" (119) appears to apply to the Hoopa Valley Tribe's exercise of regulatory jurisdiction over Roberta Bugenig's land in order to protect the White Deerskin Dance site. (120) The Hoopa Valley Tribe neutrally implemented a timber management plan throughout the reservation to protect the Tribe's most sacred spiritual site. (121) Implementing a natural resources management plan to protect the integrity of a sacred cultural site is reasonably analogous to regulating "conduct [that] threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." (122) Further, the Tribe justified its exercise of regulatory authority in part on similar language of Article IX of its constitution, which authorizes regulation in order to "safeguard and promote the peace, safety, morals, and general welfare of the Hoopa Valley Indians." (123) Even though this tribal action on its face appears to meet the purpose and standard of Montana's second exception, the Supreme Court has narrowly construed this exception, finding it applies only in limited circumstances. (124) However, federal law and policy have endorsed and legitimized site-specific worship as essential to safeguarding the cultures, religions, and traditions of Indian tribes. (125) This federal support acknowledges the significance of such resources to maintaining tribal communities and tribal institutions. (126)

The Ninth Circuit three-judge panel found that Montana's second exception did not apply to the threat posed to the Hoopa Valley Tribe's sacred site because the logging activity did not sufficiently "implicate 'tribal self-government' or 'internal [tribal] relations'" (brackets in original). (127) The three-judge panel contrasted the Tribe's interest with the Ninth Circuit's analysis of Montana's second exception as applied in Montana v. EPA. (128) In Montana v. EPA, the Environmental Protection Agency permitted a tribe to be treated as a state for purposes of setting water quality standards pursuant to the Clean Water Act. (129) The panel distinguished the Hoopa Valley Tribe's jurisdiction by asserting that

   any arguable impact that cutting second-growth timber might have
   upon the holding of a tribal dance once every two years, at a site
   some distance away, "has no potential to affect the health and
   welfare of a tribe in any way approaching the threat inherent in
   impairment of the quality of the [tribe's] principal water
   source." (130)

In addition to belittling the significance of the Hoopa's ceremony and sacred site, the court's refusal to implement Montana's second exception demonstrated the panel's disregard of the tribal need to protect cultural and religious sites in order to preserve the integrity and unity of tribal communities. (131)

The three-judge panel noted that Ninth Circuit precedent indicates the court cannot perform "an aggregation analysis" of threatening non-Indian activity to determine the applicability of Montana's second exception, but instead must focus on the individual activity tribes seek to regulate. (132) This analysis is short-sighted because it fails to consider the potentially devastating impact of activities in the aggregate. After all, what is a tribe doing by setting water quality standards except regulating individual activities that, in the aggregate, affect the quality of tribal water? (133) Thus, Montana's second exception should apply to the Hoopa Valley Tribe's regulation of activities that pose a direct threat to its sacred site, regardless of whether the threat comes from a single source or the activities of multiple landowners. This reasoning should apply both to protecting individual sacred sites and as a basis for tribal land use authority. (134)

2. Application of Montana's Second Exception and Brendale's Support of Tribal Land Use Regulatory Authority

An alternative application of Montana's second exception could also be applied to the Hoopa Valley Tribe's exercise of regulatory jurisdiction according to Brendale. Brendale held that a tribe could exercise zoning jurisdiction in a tribally controlled portion of the reservation where little land was owned in fee by nonmembers and the tribe retained the power to exclude. (135) The Northwest Regional Tribal Supreme Court for the Hoopa Valley Tribal Court of Appeals (Tribal Supreme Court) found that the Hoopa Valley Tribe had regulatory jurisdiction over non-Indian fee land on the reservation on the basis of congressional authorization and the Brendale standard applied to the Montana exception. (136) On appeal, the Ninth Circuit panel analyzed Montana's second exception. The court rejected the Tribe's argument that Brendale applied to the Tribe's timber management plan, which would have allowed the Tribe to regulate non-Indian fee land. (137) Although Brendale found tribal jurisdiction in limited situations, Brendale has undermined tribes' abilities to protect the integrity of their lands by leaving them with a restrictive and confusing basis for determining land use zoning jurisdiction on non-Indian fee lands. However, the facts in Bugenig meet the limited application of tribal jurisdiction under Brendale and should have provided an alternative basis for the Tribe to assert regulatory jurisdiction over Roberta Bugenig's property. (138)

The Supreme Court civil regulatory precedent regarding the power of a tribe to zone land owned in fee by non-Indians presents an intensely fact driven inquiry that complicates the determination of a tribe's right to exercise its jurisdiction over reservation lands. (139) In Brendale's plurality opinions delivered by Justices White (140) and Stevens, (141) with Justice Blackmun dissenting, (142) six members voted that the tribe lacked zoning jurisdiction over the "open" areas within a reservation. Five members voted that the tribe had zoning jurisdiction over the "closed" areas within the Yakima Indian Reservation in the state of Washington. (143) The closed area of the Yakima reservation consisted of primarily forested land closed to the general public. (144) The "open" area of the reservation consisted of approximately fifty percent land owned in fee, primarily used for agriculture, ranching, residential, and commercial activities. (145)

The area at issue in Bugenig is analogous to the closed portion of the reservation in Brendale. (146) The Ninth Circuit three-judge panel rejected Brendale as a basis for the Tribe's zoning authority because the Tribe did not claim "near-total exclusionary power" (147) in the regulated area of the reservation. However, the panel neglected to consider Justice Stevens's assertion in Brendale that "'[w]hat is important is that the Tribe has maintained a defined area in which only a very small percentage of the land is held in fee....'" (148) Whereas in Brendale, the percentage of nonmember land ownership in fee was three percent, the percentage on the Hoopa Valley Reservation is less than one percent. (149) The no-cut zone established by the Hoopa timber management plan, establishing a half-mile buffer around the White Deerskin Dance site, applied to Indian and non-Indian landowners. (150) Only six parcels of land on Bald Hill, the regulated area where the site is located, were owned by non-tribal owners. (151) In Brendale, Justice Stevens concluded that Congress did not intend the sale of a small portion of the reservation land to divest tribes of power to determine the character of land; nor did Congress intend that tribes retain regulatory authority over vast areas of fee land sold to non-Indians. (152) Justice Stevens's analysis centered on whether the tribe retained the original character of the reservation in the closed land. (153) Thus, the facts strongly suggest that Brendale appropriately applies to Bugenig, allowing the Hoopa to regulate the small percentage of non-Indian fee land on its reservation. (154)

3. The Need to Revise the Standard for Exercising Tribal Land Use Zoning Authority

The power to regulate land use comprehensively is a distinct aspect of self-government and self-determination. (155) Checkerboard jurisdiction on reservations resulting from the effects of the Allotment Era has led to inconsistent regulation of natural resources, which places tribal resources, such as the Hoopa's White Deerskin Dance site, at risk. (156) Although the General Allotment Act was enacted to abolish tribal governments, the Act on its own did not abolish either tribal governments or tribal sovereignty without further specific legislation terminating such status. (157) Traditional property law principles suggest that because a tribe's government existed at the time of the allotment and subsequent sales to non-Indians, purchasers were on notice that the property was within Indian Country and subject to encumbrances and servitudes related to tribal government. (158) In Bugenig, Roberta Bugenig not only received this general notice at the time she purchased land on the reservation in 1995, but she was on notice, through both publication and a letter sent to her predecessor in interest, of the particular timber harvest plan affecting her property. (159)

Perhaps, then, the Supreme Court should revisit Brendale and set forth a clearer rule that is more reflective of reasonable land use planning considerations, and gives greater effect to traditional principles of property law. (160) Because Bugenig conceivably comes under the current rule set forth in Brendale, Bugenig is not necessarily the ideal test case to remedy the Court's fractured opinion. (161) However, the Ninth Circuit three-judge panel's refusal to find Justice Stevens's opinion applicable to the facts of Bugenig illustrates that lower courts are not giving effect to even the extremely limited circumstances set forth in Brendale that allow tribal exercise of land use zoning authority, thus demonstrating the need for greater clarity by the Supreme Court. (162)

III. CONGRESSIONAL DELEGATION OF AUTHORITY OVER NON-INDIAN FEE LAND

When analyzing congressional delegations of authority, courts should refrain from extending the restrictions of Montana and subsequent precedent, which have increasingly infringed on the exercise of tribal inherent sovereignty. (163) Broadly extending the presumption of Montana would enable courts to manipulate congressional intent and place limits on Congress's plenary power to authorize tribal authority over reservation lands. The Supreme Court's lack of guidance in analyzing issues of congressional delegation is made plain by the Ninth Circuit's en banc reversal in Bugenig. (164) The Ninth Circuit's en banc decision also highlights the friction between it and the Supreme Court over the issue of inherent sovereignty. The three-judge panel's decision in Bugenig demonstrates the potential for lower courts to apply the Supreme Court's increasingly restrictive inherent sovereignty precedent to the analysis of congressional delegation. (165) According to United States v. Mazurie, (166) because tribes possess "unique 'attributes of sovereignty'" and "at least some 'independent authority over the subject matter' at issue," Congress can authorize the Hoopa to exercise regulatory jurisdiction over non-Indian fee lands. (167)

Although the Supreme Court has been increasingly reluctant to find inherent tribal jurisdiction over non-Indians--due in part to its departure from the traditional canonical approach to statutory and treaty construction toward a policy that favors non-Indian interests--this trend does not change Congress's plenary power to deal directly with Indian affairs. (168) Part III.A infra compares the Ninth Circuit en banc panel's straightforward statutory analysis approach under Mazurie with the approach of the three-judge panel. (169) Part III.B infra addresses the three-judge panel's clear statement rule for congressional delegations to tribes. (170) The divergence of these opinions illustrates two directions courts could pursue in addressing congressional delegation. Ultimately, where Congress has indeed spoken, courts should follow the straightforward approach of the Ninth Circuit en banc and avoid applying the standards of the inherent sovereignty analysis to analyses of congressional delegations. This requires courts to be wary of making and changing Indian law by assuming a legislature-like role despite Congress's primacy over Indian affairs, and without regard to the traditional rules of interpreting federal Indian treaties. (171)

A. The Ninth Circuit Rehearing En Banc: A Straightforward Express Congressional Delegation

The Ninth Circuit en banc rejected the three-judge panel's restrictive clear statement rule, and held that Mazurie controlled the issue of whether Congress expressly delegated regulatory authority to the Hoopa Valley Tribe. (172) Supreme Court precedent provides little guidance regarding congressional delegation of authority to tribes over non-Indians. (173) Mazurie is the only Supreme Court opinion exploring in depth the topic of congressional delegation to tribes. (174)

In Mazurie, the Court held that Article I, section 8 of the U.S. Constitution grants Congress authority to regulate the distribution of alcohol in "Indian country," as defined by 18 U.S.C. [subsection] 1151, 1154(c). (175) Section 1154(c) excludes from the definition of Indian country "fee-patented lands in non-Indian communities or rights of way through reservations." (176) The Court upheld a tribal ordinance, enacted pursuant to 18 U.S.C. [section] 1161, prohibiting alcohol within the reservation. (177) This prohibition extended to non-Indians within the reservation. (178) The Court noted that "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory," and thus upheld the tribal ordinance. (179) The Court affirmed this congressional delegation of authority to tribes on the basis that tribes "possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life." (180) The Mazurie analysis first requires determining whether Congress actually delegated authority to a tribe; if it did, the court must then ask whether the delegation was lawful. (181)

1. Interpretation of the Hoopa-Yurok Settlement Act

In finding an express delegation of congressional authority to enact the tribal timber plan, the Ninth Circuit en banc gave effect to the plain meaning of the Hoopa-Yurok Settlement Act. (182) The en banc panel analyzed the usual meaning, the historic usage, and the Supreme Court's interpretation of the words "ratified and confirmed" to determine that the Settlement Act gave the Tribe's governing documents the force of law. The scope of this force of law included the Tribe's constitution by which it asserted authority over Roberta Bugenig's property. (183)

In comparison, the three-judge panel had interpreted Supreme Court precedent regarding express congressional delegation of authority to tribes over non-Indians to require "gold standard" language that such congressionally delegated authority extended to lands on reservations "notwithstanding issuance of any patent." (184) The three-judge panel found that because nothing in the Settlement Act explicitly gave the Tribe authority over nonmembers, it was unlikely that Congress intended to make a delegation of jurisdictional authority over nonmembers. (185) The three-judge panel concluded that there can be no delegation of jurisdictional authority where there has been no explicit authorization, and the Settlement Act, which "simply incorporates by reference tribal documents that are themselves subject to varying interpretations[,] ... falls well short of the required standard [of the clear statement rule]." (186)

The Ninth Circuit en banc found that Congress has traditionally used the phrase "ratified and confirmed" to give legal recognition to agreements between tribes and the federal government. (187) The en banc panel noted that because the phrase is typically used to give effect to a "document involving an Indian tribe," Congress likely intended its meaning to apply to a tribe's constitution in addition to agreements between the federal government and tribes. (188) By rejecting the three-judge panel's restrictive standard for delegation, the Ninth Circuit en banc honored the principles set forth in Mazurie and recognized, to a certain degree, the Tribe's sovereign attributes that were largely ignored by the three-judge panel, (189)

To the extent the three-judge panel considered the Tribe's inherent sovereignty, it painted congressional delegation with the same brush used for determining inherent sovereignty. (190) Although the congressional delegation analysis by the Ninth Circuit en banc turned in part on attributes of tribal sovereignty, this analysis was not based on the consideration of tribal inherent sovereignty as defined in decisions like Montana. (191) If the Supreme Court were to apply a congressional delegation analysis following the reasoning of the three-judge panel--without guidance from Congress--it would potentially give greater weight to a result-oriented judicial policy aimed at protecting non-Indian interests than to basic congressional plenary power over Indian affairs. (192) That judicial findings of tribal inherent sovereignty are increasingly rare does not justify applying the same narrow approach to determinations of congressional delegations of authority. (193)

2. The Hoopa Valley Tribe's Constitution--A Governing Document

The Ninth Circuit en banc concluded that when Congress ratified and confirmed the Tribe's governing documents, it presumably knew the traditional meaning of the phrase "ratified and confirmed" and intended to give the documents, which were in fact ratified and confirmed, the force of law. (194) The Ninth Circuit en banc also presumed that Congress, in ratifying and confirming the Tribe's "governing" documents, understood what it was ratifying. (195) The court also rejected the three-judge panel's conclusion that provisions of the Tribe's constitution, by which the Tribe asserts its jurisdiction, are ambiguous, instead holding that the plain text of the Tribe's constitution supported the Tribe's exercise of jurisdiction over Ms. Bugenig's land to "protect the Tribe's cultural and natural resources." (196) In doing so, the Ninth Circuit en banc corrected the three-judge panel's failure to give effect to the tribal court's interpretation of the Tribe's constitutional authority. (197) That failure was counter to controlling precedent that requires deference to a tribal court's interpretation of the tribal laws. (198)

B. The Ninth Circuit Three-Judge Panel Decision: Express Delegation and the Application of the Clear Statement Rule

The Ninth Circuit three-judge panel applied a clear statement rule that exceeded the Supreme Court's standard for determining congressional delegation of authority to tribes, and instead relied largely on the dissent in Arizona Public Service Co. v. EPA, a decision by the D.C. Circuit. (199) The three-judge panel's application of the clear statement rule leads to the conclusion that Congress lacks the power to implicitly delegate authority to tribes in the absence of explicit delegation language. (200) The three-judge panel created a clear statement rule reflecting judicial policy rather than congressional intent.

1. The Panel's Analysis of How "Express' Congressional Delegation Must Be

Clear statement rules are "policy-based canons" used in moderation by the courts because they can radically twist documents away from their plain meaning. (201) Judicial application of clear statement rules is generally justified to protect the principles of federalism and separation of powers where Congress has acted. (202) The three-judge panel in Bugenig essentially required that an express delegation of tribal authority over nonmembers must not only be express, it must be "explicit." (203) The panel's high standard for congressional delegation is policymaking that advances judicial limitation of tribal jurisdiction over non-Indians. (204)

In requiring an explicit congressional delegation of authority to tribes, the three-judge panel formulated a statutory analysis structured around a presumption against tribal jurisdiction over non-Indians and gave little or no effect to the canons of statutory construction. (205) Its analysis misconstrued fundamental principles of Indian law by treating congressional delegation to tribes in the same manner as congressional delegation to administrative agencies. (206) Because tribes possess sovereign powers that did not originate from a legislative source, Congress need not speak directly when it delegates authority to tribes; in contrast, when delegating authority to agencies, the Court has held that delegations of power must be express. (207) Courts should refrain from treating congressional delegations of authority according to the same analysis applied to determinations of inherent sovereignty, and should, rather, adhere to the traditional canonical approach to statutory construction. (208)

2. Canons of Construction 

In Bugenig, the three-judge panel analyzed the language of the Settlement Act and the tribal constitution to determine whether Congress had made a delegation of authority to the Tribe. The panel found the two documents, when read together, were ambiguous, and the ambiguity was resolved in Bugenig's favor. (209) The Settlement Act is a statute that specifically concerns Indians. (210) By finding the language of the statute, read together with the Tribe's constitution, ambiguous, the three-judge panel did not implement the well-founded canon to construe ambiguity in favor of the Indians. (211) Further, in determining the significance of the Settlement Act and whether Congress had delegated authority to the Tribe, the three-judge panel found the Tribe's constitution to be ambiguous, despite the tribal court's interpretation. (212) In doing so, the panel ignored the controlling legal authority that requires courts to give deference to tribal court interpretations of tribal law. (213) The Ninth Circuit en banc did not find the statute, read together with the Tribe's Constitution, ambiguous, and thereby avoided the need to explicitly invoke the canons of statutory construction in its interpretation of the Settlement Act. (214)

Statutes that apply to Indians should be liberally construed, with ambiguities resolved in favor of Indians. (215) Although inconsistently used by the judiciary, these canons of construction are unrevoked and remain in effect. (216) The three-judge panel's requirement of a clear statement rule and the "notwithstanding the issuance of any patent" language is at odds with the canons. (217) Thus, these standards are legally deficient. (218) The three-judge panel's statement--that although "[t]here is a reasonable case to be made for finding congressional authorization of tribal jurisdiction ... the case by no means is airtight"--flies in the face of the canon requiring ambiguities be resolved in favor of the Tribe. (219) The panel's restrictive approach to interpreting congressional delegation threatens additional injury to the notion of tribal inherent sovereignty.

Courts employ canons of construction in the interpretation of Indian treaties and statutes because of the trust relationship between the United States and tribes, and to mitigate past inequalities in negotiations between tribes and the government. (220) Although the degree to which the canons of construction apply to unilateral federal acts (i.e., statutes and executive orders) is unclear, the canons do apply to statutes specifically concerning Indians. (221) The Supreme Court has been inconsistent in applying the canons of construction; this inconsistency has hindered tribal sovereignty (222) and allowed for an unwarranted extension of state jurisdiction within Indian country. (223)

C. Implications for Tribal Constitutions Approved by the Bureau of Indian Affairs

Because the Ninth Circuit en banc decided Bugenig on the basis of congressional delegation, tribes should look to alternative sources of federal authority in order to exercise authority over activities occurring on non-Indian fee lands within reservations. (224) This raises the question of whether a tribal constitution approved by the Bureau of Indian Affairs (BIA) containing provisions similar to those in the Hoopa Valley Tribe's constitution carries the force of law to apply to non-Indians. (225) The Indian Reorganization Act of 1934 authorized tribes to establish their own legal systems and draft their own constitutions, most of which the BIA actually drafted. (226) The exercise of tribal constitutional powers pursuant to a BIA-approved tribal constitution is considered to be an exercise of tribal sovereignty that predates the United States Constitution rather than a delegation of federal powers. (227) However, the Ninth Circuit en banc clearly considered the ratification and confirmation of the Hoopa Valley Tribe's constitution a delegation of authority to the Tribe. (228) Therefore, the next step is to look to other sources of legislative ratification of tribal constitutions. (229) The Court probably would not find that Congress empowered the BIA to make such delegation to the tribes. (230) Therefore, it is unlikely that the Court would find that Congress intended BIA approval of a tribal constitution to have the force of federal law over non-Indian activities on non-Indian fee land.

D. The Message Sent by the Ninth Circuit En Banc to Tribes in Its Finding of Congressional Delegation

Although the Ninth Circuit's en banc decision in Bugenig ultimately favored the Tribe on the issue of congressional delegation, the underlying message is that a tribe's ability to protect its natural resources and cultural and religious heritage necessarily depends on whether Congress expressly granted it the power to do so. This decision further reduces the status of tribes from diminished sovereigns (retaining all powers not taken or ceded) to a status more closely resembling an administrative agency that receives its powers through legislative authorization. (231) By potentially imposing upon tribes only the values and concerns of the federal government, delegation undermines tribal self-determination. (232) Tribes seeking to protect the integrity of their lands and cultural heritage are thus discouraged from exercising authority pursuant to their inherent rights of self-government and self-determination. Tribes must instead rely on alternative sources of authority from the federal government, such as congressional ratification of a tribal constitution. (233) Unfortunately, congressional "ratification and confirmation" of tribal authority to manage and protect tribal natural and cultural resources, such as that found in Bugenig, is a rare occurrence. (234) Ultimately, this leaves tribes seeking to protect their natural resources and cultural inheritance vulnerable because congressional delegation is infrequent, and inherent authority to protect such assets from non-Indians is seldom found by the Court. (235)

IV. CONCLUSION

Because of the unique nature of the relationship of tribal cultural identities and tribal natural resources, judicial analysis of tribal authority over reservation lands should extend the determination of tribal inherent sovereignty to permit tribes to regulate lands both to protect the integrity of tribal lands and to safeguard tribal cultural and historical resources. (236) The Hoopa Valley Tribe, as an inherently sovereign entity, is in the best place to set priorities and establish regulations to protect its important cultural and natural resources and thus ensure the perpetuation of its culture and survival of its people. Where congressional delegation is at issue, courts should not extend the analysis of Montana and subsequent precedent to color congressional intent and restrict Congress's plenary power to authorize tribal authority over reservation lands. The doctrine of inherent sovereignty better enables tribes to protect the welfare of their communities. The judicial limitation of a tribe's ability to protect its natural resources and cultural heritage is inconsistent with a federal policy designed to ensure tribal rights of self-government and the integrity of tribal cultural and religious traditions.

(1) Bugenig v. Hoopa Valley Tribe, 25 Indian L. Rep. 6139, 6139-40 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (citing testimony of tribal elder Byron Nelson and quoting his book BYRON NELSON, OUR HOME FOREVER: THE HUPA INDIANS OF NORTHERN CALIFORNIA (1978)).

(2) Id.

(3) Id. at 6139. The Hoopa Valley Tribe's timber plan provides:

   A one-half mile buffer around the White [Deerskin] Dance Ground on
   Bald Hill and the trail leading to it will be mapped and adhered to
   in all activities associated with the 1995 Bald Hill timber sale.
   No timber harvest units or other timber-related activity (except log
   trucks and other vehicles passing though the buffer zone on main
   roads) will be located within the buffer zone. This prohibition on
   activities will apply to tribal trust land, trust allotments, and
   fee land within the 1/2 mile buffer zone.

Id. at 6142.

(4) Id. at 6141. The tribal constitution and its amendments were approved by the Secretary of Interior. Id. Congress later ratified and confirmed the Tribe's governing documents. Id. This Note argues that the doctrine of inherent sovereignty should be sufficient for regulatory jurisdiction to protect tribal resources regardless of specific federal authorization. See infra, Part II.

(5) Hoopa Valley Tribe v. Bugenig, 25 Indian L. Rep. 6137 (Hoopa Valley Tribal Ct., July 11, 1996).

(6) Bugenig v. Hoopa Valley Tribe, 25 Indian L. Rep. 6139, 6141 (Hoopa Valley Sup. Ct., Apr. 23, 1998).

(7) Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1208-09 (9th Cir. 2001), rev,g en banc, 229 F.3d 1210 (9th Cir. 2000), cert. denied, 535 U.S. 927 (2002).

(8) Bugenig, 25 Indian L. Rep. at 6144.

(9) Bugenig, 266 F.3d at 1211-13 (citing the Hoopa-Yurok Settlement Act of 1988, 25 U.S.C. [section] 1300i-11 (1988)).

(10) Bugenig, 25 Indian L. Rep. at 6144.

(11) Bugenig v. Hoopa Valley Tribe, 28 Indian L. Rep. 3001, 3002-03 (N.D. Cal. 1999), rev'd, 229 F.3d 1210, aff'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002).

(12) Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1219 (2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002).

(13) Id.

(14) Bugenig, 266 F.3d at 1223.

(15) Bugenig v. Hoopa Valley Tribe, 535 U.S. 927 (2002).

(16) See, e.g., Montana v. United States, 450 U.S. 544 (1981) (establishing the general rule that tribes lack regulatory jurisdiction over non-Indians on non-Indian fee land); Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408 (1989) (finding no regulatory zoning jurisdiction over open portions of a reservation where there is a significant portion of non-Indian land ownership); Strate v. A-1 Contractors, 520 U.S. 438 (1997) (holding that tribes lack civil adjudicatory jurisdiction over non-Indians on non-Indian fee land, or the equivalent of non-Indian fee land such as an easement).

(17) Mary Christina Wood, Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources, 1995 UTAH L. REV. 109, 233-34 (1995).

(18) Dean B. Suagee, Legal Structure and Sustainable Development: Tribal Self-Determination and Environmental Federalism: Cultural Values as a Force for Sustainability, 3 WIDENER L. SYMP. J. 229, 231 (1998).

(19) See, e.g., Rupert v. United States Fish and Wildlife Serv., 957 F.2d 32, 34-35 (1st Cir. 1992) (discussing federal interest in protecting tribal religious resources).

(20) See discussion infra Part II.

(21) Id.

(22) See discussion infra Part III.

(23) See discussion infra Part III.

(24) See discussion infra Part II.A (discussing the unique connection of tribal culture and natural resources to the concept of tribal inherent sovereignty).

(25) See discussion infra Part II.C.1 (discussing the effects of the Allotment Era and recent judicial decisions limiting tribal jurisdiction).

(26) See discussion infra Part II.C (discussing judicial limitations on tribal civil regulatory jurisdiction and Montana v. United States, 450 U.S. 544 (1981)).

(27) Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1204, 1223 (9th Cir. 2001), rev'g en banc, 229 F.3d 1210 (9th Cir. 2000), cert. denied, 535 U.S. 927 (2002). The Ninth Circuit en banc found that the language in the Settlement Act, which ratified and confirmed the Tribe's governing documents, applied to the Tribe's constitution, which authorized the Tribe's exercise of regulatory jurisdiction over non-Indian fee land. Id at 1209-23.

(28) 450 U.S. 544 (1981).

(29) See discussion infra Part II.C (discussing judicial limitations on civil regulatory jurisdiction and Montana v. United States, 450 U.S. 544 (1981)). See generally Bugenig, 229 F.3d 1210, 1221-23 (2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001) (finding that the Hoopa lacked inherent authority to regulate non-Indian fee land on the reservation in order to protect the sacred site).

(30) Montana, 450 U.S. at 566.

(31) See Bugenig, 266 F.3d at 1223 (finding express congressional delegation); discussion infra Part II.D.2 (arguing that Montana's second exception applies to the Hoopa's exercise of regulatory authority).

(32) See discussion infra Part II.D.2.

(33) Brendale, 492 U.S. 408, 443-44 (1989). In a plurality opinion, Justice Stevens concluded that tribal land use regulation of activities impacting spiritual and cultural values was consistent with Montana. Id. See Bugenig, 25 Indian L. Rep. 6139, 6144 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (applying Brendale to the Hoopa's exercise of regulatory jurisdiction).

(34) See generally Bugenig, 229 F.3d at 1223 n.8 (rejecting the argument that the Tribe could exercise jurisdiction according to the Brendale opinion); Carl G. Hakansson, Indian Land-Use Zoning Jurisdiction: An Argument in Favor of Tribal JurisdiCtion Over Non-Member Fee Lands within Reservation Boundaries, 73 N.D.L. REV. 721, 740 (1997) (arguing for the integration of federal tribal self-determination policy with modern land use zoning concepts); discussion infra Part II.D.2 (discussing the application of Brendale to the facts of Bugenig).

(35) See generally Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000) (discussing tribal interests and finding congressional delegation of authority over non-Indian sources of air pollution on reservations); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) (discussing tribal interests in managing fish and wildlife resources on reservation).

(36) Suagee, supra note 18, at 233-34.

(37) Id. at 234.

(38) See Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1474 (1994) (discussing the threats of "development, pollution, and loss of resources" to tribal land-bases and tribal sovereignty).

(39) Judith V. Royster & Rory SnowArrow Fausett, Control of the Reservation Environment: Tribal Primacy, Federal Delegation, and the Limits of State Intrusion, 64 WASH. L. REV. 581,657-59 (1989) (discussing state pollution control laws and Indian country, and arguing that state laws are "preempted by the federal environmental management scheme for Indian country").

(40) Id. at 654 (discussing the need for tribal and federal primacy in Indian country).

(41) See, e.g., Federal Water Pollution Control Act, 33 U.S.C. [section] 1377(a) (2000). Congress gave the Environmental Protection Agency (EPA) authority to treat tribes as states for purposes of managing and protecting water resources within reservation boundaries. Id.; see also Andrea K. Leisy, Inherent Tribal Sovereignty and the Clean Water Act: The Effect of Tribal Water Quality Standards on Non-Indian Lands Located Both Within and Outside Reservation Boundaries, 29 GOLDEN GATE U. L. REV. 139, 156-57 (1999). "At least two tribal groups have succeeded in obtaining [treatment as state] status and have overcome judicial challenges to the EPA's authority to empower them to establish water quality standards." Id (citing Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996) and Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998)).

(42) See infra Part II.B (discussing an example of the significance of natural resources to a tribe).

(43) See Suagee, supra note 18, at 231 (discussing problems tribes encounter in attempting to establish environmental regulatory programs).

(44) See Brief Amicus Curiae for the United States in Support of Appellees at 19-21, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (citing American Indian Religious Freedom Act, 42 U.S.C. [subsection] 1996-1996a (1994)); Native American Graves Protection and Repatriation Act, 25 U.S.C. [section] 3001 (2000); Exec. Order No. 13007, 61 Fed. Reg. 26,771 (May 24, 1996)).

(45) See, e.g., 42 U.S.C. [section] 1996 (2000) ("[I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.").

(46) See, e.g., Rupert v. United States Fish and Wildlife Serv., 957 F.2d 32, 34-35 (1st Cir. 1992) (discussing federal interest in protecting tribal religious resources).

(47) See generally Craighton Goeppele, Solutions for Uneasy Neighbors: Regulating the Reservation Environment After Brendale v. Confederated Tribes & Bands of Yakima Indian Nation [sic], 109 S. Ct. 2994 (1959), 65 WASH. L. REV. 417, 430-31 (1990) (discussing the need for tribal land use regulation over non-Indian fee land on reservations in order to manage natural resources and environmental quality).

(48) See generally Bugenig, 25 Indian L. Rep. 6139, 6139-42 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (discussing the Hoopa Valley Tribe's timber management plan and the significance of the White Deerskin Dance site).

(49) Id.

(50) See id. at 6139-40 (describing the White Deerskin Dance ceremony).

(51) Id.; Brief Amicus Curiae for the United States in Support of Appellees at 4, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654).

(52) Bugenig, 25 Indian L. Rep. at 6139-40 (quoting testimony of tribal elder Byron Nelson).

(53) Id. at 6140 (quoting BRYON NELSON, OUR HOME FOREVER: THE HUPA INDIANS OF NORTHERN CALIFORNIA 5 (1978)).

(54) Id.

(55) Id. at 6139.

(56) Brief Amicus Curiae for the United States in Support of Appellees at 22, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (citing Walter R. Goldschmidt & Harold E. Driver, The Hupa White Deerskin Dance, 35 U.C. PUBLICATIONS IN AM. ARCHEOLOGY AND ETHNOLOGY 103, 121 (1943)).

(57) Bugenig, 25 Indian L. Rep. 6139, 6141-42 (Hoopa Valley Sup. Ct. Apr. 23, 1998).

(58) Hoopa Valley Tribe v. Bugenig, 25 Indian L. Rep. 6137, 6137 (Hoopa Valley Tribal Ct., July 11, 1996). The notice included the following statement:

   The Hoopa Valley Tribe Forestry Department has prepared an
   Environmental Assessment (EA) of the Bald Hill 1995 Timber Sale
   Project. The environmental assessment evaluates two alternatives
   based on the Tribe's recently adopted forest management plan. Both
   alternatives propose harvesting about 10.4 [million board feet]
   from the planning area during the coming year, [sic] issues
   addressed in the EA include effects to the cultural resources
   including the Deerskin Dance Site, effects of road use on prehistoric
   archaeological sites, effects to domestic water sources, right of way
   for hauling tribal timber, maintenance of habitat for owls and
   effects to other threatened or endangered wildlife and bear damage
   in conifer plantations.

Id.

(59) Bugenig, 25 Indian L. Rep. at 6141.

(60) Id. at 6141-42. The deed was recorded in Humboldt County, California on June 1, 1995. Id. at 6142.

(61) Id. at 6142.

(62) Id.

(63) Id.

(64) Id.

(65) Id.

(66) Bugenig, 266 F.3d 1201, 1209 (9th Cir. 2001), rev'g en banc, 229 F.3d 1210 (9th Cir. 2000), cert. denied, 535 U.S. 927 (2002).

(67) See, e.g., Stephen Cornell, Sovereignty, Prosperity and Policy in Indian Country Today, 5 COMMUNITY REINVESTMENTS 5 (1997), reprinted in CASES AND MATERIALS ON FEDERAL INDIAN LAW 721, 725-27 (David H. Getches et al. eds., 4th ed. 1998) (arguing that a significant component of the effective exercise of sovereignty is the legitimacy that a government attains when its actions are compatible with the values and culture of the people governed); see also discussion supra Part II.A (discussing the importance of tribal authority to protect natural resources, and cultural and historical sites).

(68) See, e.g., Brief Amicus Curiae for the United States in Support of Appellees at 20, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (quoting the congressional finding in the Native American Languages Act, 25 U.S.C. [section] 2901 (2000), which states that "languages ... are critical to the survival of cultural and political integrity of any people"). This amicus brief was submitted on behalf the Department of Interior, the Environment and Natural Resources Division of the Department of Justice, and the Assistant Attorney General in support of the Tribe's combined petition for panel rehearing and rehearing en banc.

   As part of its commitment to supporting tribal self-determination
   and selfgovernance [sic], the United States supports appropriate
   assertions of tribal jurisdiction and authority. Further, in its
   commitment to government-to-government relations with Indian
   Tribes, the United States Department of Justice respects and seeks
   to preserve tribal cultures.

Id. at 2 (citing 61 Fed. Reg. 29,424, 29,426 (June 10, 1996)).

(69) See id (using Congressional legislation to advocate for protection of tribal sovereignty over cultural and religious sources).

(70) See, e.g., Worcester v. Georgia, 31 U.S. 515, 53840 (1832) (finding tribal inherent sovereignty as a bar to state jurisdiction).

(71) Talton v. Mayes, 163 U.S. 376, 383-84 (1896); Worcester, 31 U.S. at 538-40, 559.

(72) See United States v. Wheeler, 435 U.S. 313, 328-30 (1978) (affirming that tribes and the federal government may prosecute a defendant for the same offense without violating the Fifth Amendment prohibition against double jeopardy because they are separate sovereigns, each with the right to enforce their laws).

(73) United States v. Kagama, 118 U.S. 375, 383-84 (1886).

(74) Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 211 (1978).

(75) David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV. 1573, 1584 (1996) [hereinafter Conquering the Cultural Frontier.

(76) See id. at 1584-85 (discussing the impact of loss of land on tribal sovereignty).

(77) General Allotment Act of 1887 (Dawes Act), 24 Stat. 388 (codified as amended at 25 U.S.C. [subsection] 331-358 (2000)). The Allotment Era ended officially with the passage of the Indian Reorganization Act of 1934, 25 U.S.C. [subsection] 461-479 (2000).

(78) CASES AND MATERIALS ON FEDERAL INDIAN LAW 142 (David H. Getches et al. eds., 4th ed. 1998).

(79) See Joseph William Singer, Legal Theory: Sovereignty and Property, 86 NW. U. L. REV. 1, 9 (1991) (discussing the aftermath of the Allotment Era and the devastating impact of allotment on the integrity of tribal lands).

(80) CASES AND MATERIALS ON FEDERAL INDIAN LAW, supra note 78, at 142, 165-66.

(81) Id. at 166.

(82) Id. (citing H/story of the Allotment Policy, Hearings on H.R. 7902 Before the House Comm. on Indian Affairs, 73d Cong., 2d Sess., pt. 9, at 428-85 (1934), statement of Delos Sacket Otis).

(83) Singer, supra note 79, at 9.

(84) Id.

(85) See generally Brendale, 492 U.S. 408 (1989) (finding no regulatory zoning jurisdiction over open portions of a reservation where there is a significant portion of non-Indian land ownership).

(86) Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137, 1180 (1990).

(87) See Getches, Conquering the Cultural Frontier, supra note 75, at 1622-25 (discussing the lasting impact of the "short-lived allotment policy" on issues involving tribal jurisdiction, citing cases including Montana, Brendale, and Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968)).

(88) Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers, 109 YALE L.J. 1, 24 (1999) [hereinafter A Common Law for Our Age of Colonialism].

(89) Id. at 25 (criticizing the Court for its resolution of diminishment cases).

(90) See Singer, supra note 79, at 9 (accusing the Court of engaging "in extraordinary judicial activism"); see also discussion, infra Part II.C.2 (discussing judicially imposed limitations on inherent sovereignty and exercises of civil regulatory jurisdiction) and Part II.D (analyzing the Hoopa Valley Tribe's exercise of inherent sovereignty).

(91) See generally Frickey, A Common Law for Our Age of Colonialism, supra note 88, at 17-27 (discussing Congress's failure to resolve the negative effects of allotment); Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975) (discussing the nature of the trust relationship of tribes and the federal government).

(92) See Bugenig, 25 Indian L. Rep. 6139, 6141 (Hoopa Valley Sup. Ct., Apr. 23, 1998).

(93) See discussion supra Part II.C.2 (discussing the recent judicial trend away from finding inherent tribal powers over non-Indians).

(94) 31 U.S. 515 (1832) (finding tribal inherent sovereignty as a bar to state jurisdiction).

(95) See Singer, supra note 79, at 9-10.

(96) Nee Montana 450 U.S. 544, 557-67 (1981) (holding that tribal inherent sovereignty extends to that which is necessary to protect tribal self-government and internal relations, and creating two limited exceptions to this general rule).

(97) Id.

(98) Id. at 549-51.

(99) Id. at 550-51.

(100) Id. at 556-57.

(101) Id.

(102) Id. at 558-60 (quoting the Second Treaty of Fort Laramie, May 7, 1868, art. II, 15 Stat. 649, 2 KAPPLER 998, 999).

(103) Id. at 564-65.

(104) Id. at 564.

(105) Getches, Conquering the Cultural Frontier, supra note 75, at 1610.

(106) Montana, 450 U.S. 544, 565 (1981).

(107) Id. at 566.

(108) See Frickey, A Common Law for Our Age of Colonialism, supra note 88, at 44-47 (discussing the restrictions and confusion of post-Montana cases that consider the Montana exceptions); see also Brendale, 492 U.S. 408 (1989) (finding that the Tribe lacked regulatory zoning authority over fee lands within the open portion of the reservation where a substantial portion of the land was owned in fee and the Tribe had lost the power to exclude); Strate, 520 U.S. 438 (1997) (extending Montana's ruling to exclude civil adjudicatory jurisdiction over non-Indians on non-Indian fee land, or the equivalent of non-Indian fee land such as an easement); Nevada v. Hicks, 533 U.S. 353 (2001) (finding that the Tribe lacked jurisdiction over non-Indians for tortious activities on Indian land because sovereign jurisdiction was not essential to tribal self-government or internal relations).

(109) Allison M. Dussias, Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty: The Supreme Court's Changing Vision, 55 U. PITT. L. REV. 1, 96-97 (1993).

(110) Id. at 78-79 (discussing the implications of the Court's member-based approach to sovereignty issues).

(111) See, e.g., Bugenig, 229 F.3d 1210, 1220-23 (9th Cir. 2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002). Because the Ninth Circuit en banc found an express delegation, it did not speak to the issue of the Hoopa Valley Tribe's inherent authority to regulate non-Indian fee land in order to protect central religious and cultural resources within the reservation. The three-judge panel's analysis of Montana's second exception found that the Hoopa Valley Tribe's timber management plan and protection of the White Deerskin Dance site did involve a threat to tribal political, economic, health, or welfare sufficient to fall within the second Montana exception. Id. at 1220-22; see also discussion infra Part II.D (discussing the application of Montana's second exception to the Hoopa Valley Tribe's regulatory activities).

(112) See Bugenig, 266 F.3d 1201 (9th Cir. 2001), rev'g en banc, 229 F.3d 1210 (9th Cir. 2000), cert. denied, 535 U.S. 927 (2002) (finding tribal jurisdiction solely on the basis of congressional delegation).

(113) See, e.g., Brendale, 492 U.S. 408, 432-33 (1989) (finding no tribal regulatory zoning authority over fee lands within the portion of the reservation where a substantial portion of the land was owned in fee and the Tribe had lost its power to exclude).

(114) See discussion, supra Part II.A (discussing connections between tribal inherent sovereignty and the land, and cultural resources of a tribe); see also Cornell, supra note 67 at 725 (arguing that a significant component of sovereignty is the legitimacy a government attains when compatible with the values and culture of the people governed).

(115) See Bugenig, 266 F.3d at 1223 (holding "that Congress expressly delegated authority to the Tribe to enact the ordinance in question"). But see discussion infra Part III.C (discussing possible application of the en banc opinion to tribal constitutions approved by the Bureau of Indian Affairs).

(116) Bugenig, 229 F.3d at 1221-23 (citing cases including Brendale, 492 U.S. 408).

(117) Id. at 1223 n.8 (citing cases including Brendale, 492 U.S. 408).

(118) See Motion of N. Bruce Duthu, Professor of Law, for Leave to File an Amicus Curiae Brief in Support of Hoopa Valley Tribe's Combined Petition for Panel Rehearing and Rehearing En Banc at 2, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (seeking consistent and coherent application of rules).

(119) Montana, 450 U.S. 544, 566 (1981).

(120) See, e.g., Bugenig, 25 Indian L. Rep. 6139, 6144 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (finding tribal jurisdiction both on the basis of the plain language of the Settlement Act and Montana's second exception).

(121) Id.

(122) See Montana, 450 U.S. at 566 (explaining the second exception); Bugenig, 25 Indian L. Rep. at 6144.

(123) Bugenig, 266 F.3d 1201, 1207-08 (9th Cir. 2001), rev'g en banc, 229 F.3d 1210 (9th Cir. 2000), cert. denied, 535 U.S. 927 (2002) (citing Article IX of the Hoopa Valley Tribe's constitution).

(124) See discussion supra Part II.C.2 (discussing the narrow application of Montana's second exception and increasing judicial infringement on tribal inherent sovereignty); Montana 450 U.S. at 566.

(125) Brief Amicus Curiae for the United States in Support of Appellees at 19-20, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654); see also discussion supra Part II.A (discussing the interrelated nature of natural resources and tribal cultural and historical sites).

(126) Brief Amicus Curiae for the United States in Support of Appellees at 19-20, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654).

(127) Bugenig, 229 F. 3d 1210, 1220 (9th Cir. 2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002) (quoting Strate, 520 U.S. 438, 458 (1997)).

(128) 137 F.3d 1135 (9th Cir. 1998).

(129) Id. at 1141.

(130) Bugenig, 229 F.3d 1210, 1222 (2000) (quoting Montana v. EPA, 137 F.3d at 1141).

(131) See Brief Amicus Curiae for the United States in Support of Appelles at 19-20, Bugenig, 266 F. 3d 1201 (9th Cir. 2001) (No. 99-15654) (arguing that preventing the destruction of cultural and religious sites is essential to the preservation and survival of tribal culture).

(132) Bugenig, 229 F.3d at 1221 (citing Yellowstone County v. Pease, 96 F.3d 1169, 1176-77 (9th Cir. 1996), and Burlington N. Ry. Co. v. Red Wolf, 196 F.3d 1059, 1065 (9th Cir. 1999)).

(133) See generally Montana v. EPA, 137 F.3d 1135, 1138-41 (9th Cir. 1998) (discussing the Clean Water Act and tribal regulation of non-member activities that threaten tribal water quality).

(134) See discussion infra Part II.D.2 (discussing the Ninth Circuit three-judge panel's failure to apply Brendale as a basis for tribal land use authority).

(135) See Bugenig 25 Indian L. Rep. 6139, 6144 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (applying Brendale to the Hoopa's exercise of regulatory jurisdiction).

(136) Id.

(137) Bugenig, 229 F.3d 1210, 1222 n.8 (9th Cir. 2000).

(138) See Singer, supra note 79, at 24-36 (discussing the fractured opinion of Brendale); Hakansson, supra note 34, at 740 (discussing the need for comprehensive tribal zoning authority). It should be noted that even though Brendale may apply to Bugenig, the Supreme Court should revisit Brendale to clarify the law and allow tribes to implement zoning authority on a comprehensive basis to protect the integrity of tribal lands and resources. See Hakansson, supra note 34, at 740.

(139) See Brendale, 492 U.S. 408 (1989).

(140) Justice White was joined by the Chief Justice and Justices Scalia and Kennedy in delivering an opinion prohibiting tribal zoning regulation over non-Indian fee land in the open area of the reservation and dissenting from opinion allowing zoning authority over non-Indian fee land in the closed area of reservation. Id. at 414-33.

(141) Justice Stevens was joined by Justice O'Conner in delivering an opinion allowing tribal zoning authority over non-Indian fee land in the closed area of the reservation. Both justices concurred in prohibiting tribal zoning authority over non-Indian fee land in the open area of the reservation. Id at 433-48.

(142) Justice Blackmun was joined by Justices Brennan and Marshall in concurring as to allowing tribal zoning authority over the closed area and dissenting from opinion prohibiting tribal zoning authority in the open area. Id at 448-68.

(143) Id. at 400-13.

(144) Id. at 415.

(145) Id at 416.

(146) See Bugenig 25 Indian L. Rep. 6139, 6143-44 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (holding that Brendale applies to Bugenig); Brief Amicus Curiae for the United States in Support of Appellees at 17-18, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (arguing that the facts in Brendale apply to Bugenig); Hoopa Valley Tribe's Combined Petition for Panel Rehearing and Rehearing En Banc at 6-9, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (arguing that the facts in Brendale apply to Bugenig).

(147) Bugenig, 229 F.3d 1210, 1222 n.8 (9th Cir. 2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002).

(148) Hoopa Valley Tribe's Combined Petition for Panel Rehearing and Rehearing En Banc, at 6, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (quoting Brendale, 492 U.S. 408, 437 n.2 (1989)).

(149) Id. at 7.

(150) Bugenig 25 Indian L. Rep. 6139, 6141 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (noting that the Tribe had approximately $5 million of timber within the buffer zone).

(151) Id.

(152) Brendale, 492 U.S. 408, 437 (1989).

(153) Frickey, A Common Law for Our Age of Colonialism, supra note 88, at 45 (citing Brendale, 492 U.S. at 442).

(154) See Brief Amicus Curiae for the United States in Support of Appellees at 16-18, 23-24, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (arguing that the facts in Brendale apply to Bugenig); Hoopa Valley Tribe's Combined Petition for Panel Rehearing and Rehearing En Banc at 5-9, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (arguing that the facts in Brendale apply to Bugenig).

(155) See Hakansson, supra note 34, at 740 (arguing that in the absence of congressional direction, the Court should apply Montana's second exception to land use zoning).

(156) Id at 737; see also discussion supra Part II.C.1 (discussing the effects of the allotment era).

(157) See Singer, supra note 79, at 26 (citing Justice Blackmun's concurring and dissenting opinion in Brendale, 492 U.S. at 463-64).

(158) Id. at 34-35.

(159) Bugenig, 25 Indian L. Rep. 6139, 6141-42 (Hoopa Valley Sup. Ct., Apr. 23, 1998).

(160) See Hakansson, supra note 34, at 740 (arguing that "[a] novel approach that integrates current federal government policy concerning tribal self-determination with the modern precepts of comprehensive land-use zoning is essential").

(161) See generally Hoopa Valley Tribe's Combined Petition for Panel Rehearing and Rehearing En Banc at 5-9, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (arguing that the facts in Brendale apply to Bugenig); Brief of Amicus Curiae for the United States in Support of Appellees at 16-18, 23-24, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (arguing that the facts in Brendale apply to Bugenig).

(162) See generally Bugenig, 229 F.3d 1210, 1223 n.8 (9th Cir. 2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002) (rejecting the argument that the Tribe could exercise jurisdiction under the Brendale analysis).

(163) See discussion supra Part II, discussing Supreme Court precedent regarding tribal inherent sovereignty.

(164) See Bugenig, 266 F.3d 1201, 1210 (9th Cir. 2001), rev'g en banc, 229 F.3d 1210 (9th Cir. 2000), cert. denied, 535 U.S. 927 (2002) (noting that the Court has rarely discussed express congressional delegation).

(165) See Bugenig, 229 F.3d at 1218-19 (noting the presumption against tribal jurisdiction over nonmembers, established according to Supreme Court precedent, requires that any congressional delegation of authority be truly express).

(166) 419 U.S. 544 (1975).

(167) Bugenig, 266 F. 3d at 1223 (quoting United States v. Mazurie, 419 U.S. 544, 557 (1975)).

(168) See id. at 1218-19 (discussing the unusual nature of Congress's plenary power over Indian affairs, citing FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 147, 219 (1982 ed.); McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164 (1973) (holding that states lacked jurisdiction to tax Indian income wholly derived from reservation resources because relevant treaty and statutes accord power exclusively to the federal government); Morton v. Mancari, 417 U.S. 535 (1974) (finding that Congress has plenary power to enact Indian hiring preferences for the Bureau of Indian Affairs). But for examples where the judicial trend favors non-Indian interests, see Montana, 450 U.S. 544, 557-67 (1981) (holding that there is a presumption against tribal regulatory authority over non-Indian activities on non-Indian fee land); Brendale, 492 U.S. 408 (1989) (finding tribe lacked regulatory zoning authority over fee lands within the open portion of the reservation where a substantial portion of the land was owned in fee and tribe had lost the power to exclude); Strate, 520 U.S. 438 (1997) (extending Montana's ruling to exclude civil adjudicatory jurisdiction over non-Indians on non-Indian fee land, or the equivalent of non-Indian fee land such as an easement); Nevada v. Hicks, 533 U.S. 353 (2001) (finding tribe lacked jurisdiction over non-Indians for tortious activities on Indian land because jurisdiction was not essential to tribal self-government or internal relations, and because Congress had not delegated power); Jill De La Hunt, The Canons of Indian Treaty and Statutory Construction: A Proposal for Codification, 17 U. MICH. J.L. REFORM 681, 691-94 (1984) (arguing that the Court's use of the traditional canons has become haphazard and increasingly disregards the interests of Indians); Getches, Conquering the Cultural Frontier, supra note 75, at 1574 (noting the Court's recent trend towards accommodating non-Indian interests at the expense of well-established principles of Indian law).

(169) See infra Part III.A.

(170) See infra Part III.B.

(171) See generally Singer, supra note 79, at 9-10 (discussing the Court's trend of restricting tribal inherent sovereignty); see also Frickey, A Common Law for Our Age of Colonialism, supra note 88. Professor Frickey accuses the Court of "implementing the ongoing colonial process" over Tribes. Id. at 7. He argues that the Court has unraveled the traditional canonical approach of the judiciary, disregarding the canons of treaty and statutory construction in favor of protecting nonmember interests. Id at 58. Professor Frickey blames Congress for the confusion that has resulted from the Allotment Era and subsequent congressional silence, which has left the Court to make sense of that confusion. Id. at 24.

(172) See Bugenig, 266 F.3d 1201, 1210-11 (9th Cir. 2001) (noting that Mazurie, 419 U.S. 544 (1975), governs the question of determining an express congressional delegation). See generally infra Part III.B (discussing the clear statement rule applied by the Ninth Circuit three-judge panel).

(173) Bugenig, 266 F.3d at 1210. There is little Supreme Court precedent regarding delegation of authority to tribes over non-Indians in part because such delegations have been infrequent.

(174) Id. (citing Mazurie and FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 253 (1982 ed.)).

(175) Mazurie, 419 U.S. at 553-57 (citing 18 U.S.C. [subsection] 1151, 1154(c)).

(176) Id. at 546 (citing 18 U.S.C. [section] 1154(c)).

(177) Id. at 553-57.

(178) Id. at 557-58.

(179) Id. at 557 (citing Worcester, 31 U.S. 515, 557 (1832)).

(180) Mazurie, 419 U.S. 544, 557 (1975).

(181) Bugenig, 266 F.3d 1201, 1211 (9th Cir. 2001) (citing Mazurie).

(182) See id. at 1212-14 (citing the Hoopa-Yurok Settlement Act, 25 U.S.C. [section] 1300i-11 (2000)). The Settlement Act was enacted by Congress in order "to establish a 'fair and equitable settlement of the dispute [between the Hoopa Valley Tribe and the Yurok] relating to the ownership and management of the Hoopa Valley Reservation." Id. at 1207 (quoting S. REP. 100 564, at 14 (1988)). The court noted that "as part of its plan to define the rights of the parties involved in the Settlement Act, Congress stated: 'The existing govening [sic] documents of the Hoopa Valley Tribe and governing body established and elected thereunder, as heretofore recognized by the Secretary, are hereby ratified and confirmed.'" Id. (quoting 25 U.S.C. [section] 1300-i7) (emphasis added).

(183) Bugenig, 266 F.3d at 1213. The Hoopa Valley Tribe's constitution provides that the Tribe's jurisdiction extends "'to all lands within the confines of the Reservation boundaries ... and to such other lands as may hereafter be acquired by or for the'" Tribe. Id. at 1207-08 (quoting Hoopa Valley Tribe Constitution, art. III). Article IX of the Tribe's constitution provides that, among its enumerated powers, the tribal council may enact ordinances that affect nonmembers, pursuant to the approval of the Commissioner of Indian Affairs, in order to "safeguard and promote the peace, safety, morals, and general welfare" of the Tribe. Id. at 1208 (quoting Hoopa Valley Tribe Constitution, art. IX).

(184) Bugenig, 229 F.3d 1210, 1218 (9th Cir. 2001) (quoting the dissent in Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1301-03 (D.C. Circuit 2000)); see also Part III.B, infra

(185) Id. at 1215.

(186) Id. at 1219 (noting that congressional delegation must be considered "in light of the well-established background norms" that create a strong presumption against such delegations); see also Part III.B, infra

(187) Bugenig, 266 F.3d 1201, 1212-13 (9th Cir. 2001) (citing Act of Feb. 28, 1877, 19 Stat. 254; Act of Mar. 3, 1891, 26 Stat. 1027, 1029; Curtis Act, 30 Stat. 495, 505).

(188) Id. at 1213 n.6. The Ninth Circuit en banc also noted that this determination with regard to the Hoopa Valley Tribe's constitution was supported by legislative history showing that the Settlement Act was intended to clarify the Tribe's "right to 'make management decisions relating to the lands and resources'" pertaining to reservation lands. Id. at 1213 (quoting S. REP. 100-564, at 9 (1988)).

(189) Id. at 1223; see also Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 NW. U. L. REV. 62, 106-08 (1990) (discussing congressional delegation of authority to tribes on the basis of their sovereign status and right to self-government).

(190) See Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1218-19 (2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002) (discussing the Montana presumption against tribal jurisdiction over land owned in fee by non-Indians).

(191) See Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1209-23 (9th Cir. 2001), rev'g en banc, (229) F.3d 1210 (9th Cir. 2000), cert. denied, 535 U.S. 927 (2002) (explaining the general analysis of the congressional delegation to the Tribe); Mazurie, 419 U.S. 544, 557 (1975) (the Court's analysis of whether Congress could delegate authority to the Tribe's did not depend on issues of tribal inherent sovereignty); Montana 450 U.S. 544, 563-66 (1981).

(192) See generally Singer, supra note 79, at 9-10 (discussing the Court's trend toward protecting non-Indian property interests over tribal sovereignty); Frickey, A Common Law for Our Age of ColonialiSm, supra note 88, at 24-26 (discussing congressional silence and the Court's need to make sense of the policy considerations arising from the post-Allotment Era).

(193) See supra Part II.C.2 for further discussion regarding the limitations on tribal inherent sovereignty and exercises of civil regulatory jurisdiction.

(194) Bugenig, 266 F.3d 1201, 1213 (9th Cir. 2001) (citing Antoine v. Washington, 420 U.S. 194, 198, 204 (1975); Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988)).

(195) Id. at 1216.

(196) Id. at 1213-14.

(197) See id. (finding support for the Tribe's assertion of jurisdiction in the constitution's plain text); Bugenig v. Hoopa Valley Tribe, 25 Indian L. Rep. 6139, 6141-44 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (finding that the Tribe validly exercised jurisdiction pursuant to its constitution and the plain language of the Settlement Act).

(198) Hoopa Valley Tribe's Combined Petition for Panel Rehearing and Rehearing En Banc at 11-12, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (citing Talton v. Mayes, 163 U.S. 376, 384-85 (1896); Tom v. Sutton, 533 F.2d 1101, 1106 (9th Cir. 1976); Burlington N. Ry. Co. v. Crow Tribal Council, 940 F. 2d 1239, 1246 (9th Cir. 1991); Judith V. Royster, Stature and Scrutiny: Post-Exhaustion Review of Tribal Court Decisions, 46 KAN. L. REV. 241, 255 (2000) [hereinafter Stature and Scrutiny).

(199) Consolidated Brief of Amici Curiae Grand Portage Band of Chippewa Indians et al. at 7, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (citing Mazurie, 419 U.S. 544 (1975); Rice v. Rehner, 463 U.S. 713 (1983); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000)).

(200) Id. at 4-5 (citing Strate, 520 U.S. 438 (1997)).

(201) Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 414-15 (1993).

(202) Id. at 415.

(203) Bugenig, 229 F.3d 1210, 1218-19 (9th Cir. 2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002).

(204) See generally Singer, supra note 79, at 9-10 (accusing the Court of engaging in judicial activism by placing restrictions on tribal sovereignty).

(205) See Consolidated Brief of Amici Curiae Grand Portage Band of Chippewa Indians et al. at 9-10, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (arguing that the panel replaced the canons of construction with a presumption against tribal jurisdiction).

(206) Id. at 10-11 (explaining that this difference in delegation procedure may be because agencies, as opposed to tribes, have no independent authority).

(207) Id. at 8, 11. In Ariz. Pub. Serv. Co. v. EPA, the D.C. Circuit found an express delegation within the Clean Water Act despite the absence of the magic words "notwithstanding the issuance of any patent." 211 F.3d 1280, 1288-92 (D.C. Cir. 2000). In rejecting the need for magic words, the D.C. Circuit stated: "That a provision uses a new formulation is not dispositive of the question as to whether it constitutes an express delegation." Id. at 1289. Further, the Supreme Court denied certiorari and left the D.C. Circuit's opinion intact.

(208) See supra Part II for further discussion of the distinct analysis required for determinations of inherent tribal sovereignty.

(209) Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1215-16 (9th Cir. 2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002) (citing 25 U.S.C. [section] 1300i-7).

(210) See Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1206 (9th Cir. 2001), rev'g en banc, 229 F.3d 1210 (9th Cir. 2000), cert. denied, 535 U.S. 927 (2002) (describing the Settlement Act).

(211) Bugenig, 229 F. 3d at 1216-17; see also Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (citing McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 174 (1973)).

(212) Bugenig. 229 F.3d at 1216. See, e.g., Bugenig, 25 Indian L. Rep. 6139, 6141-44 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (finding a valid exercise of the Hoopa's tribal constitutional authority).

(213) Hoopa Valley Tribe's Combined Petition for Panel Rehearing and Rehearing En Banc at 11-12, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654) (citing Talton v. Mayes, 163 U.S. 376, 384-85 (1896); Tom v. Sutton, 533 F.2d 1101, 1106 (9th Cir. 1976); Burlington N. Ry. Co. v. Crow Tribal Council, 940 F.2d 1239, 1246 (9th Cir. 1991); Royster, Stature and Scrutiny, supra note 197, at 255).

(214) See Bugenig 266 F.3d at 1217-18 (finding that the Settlement Act was not ambiguous).

(215) See, e.g., Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (citing McClanahan, 411 U.S. at 174); Choate v. Trapp, 224 U.S. 665, 675 (1912).

(216) De La Hunt, supra note 167, at 694.

(217) Consolidated Brief of Amici Curiae Grand Portage Band of Chippewa Indians et al. at 9-10, Bugenig, 266 F.3d 1201 (9th Cir. 2001) (No. 99-15654).

(218) Id. at 8-10.

(219) Bugenig v. Hoopa Valley Tribe, 229 F. 3d 1210, 1216 (9th Cir. 2000), rev'd en banc, 266 F.3d 1201 (9th Cir. 2001), cert. denied, 535 U.S. 927 (2002). Nee De La Hunt, supra note 167, at 694 (criticizing the Court's discussion of statutory and treaty construction and its failure to give effect to this canon by looking for "an 'unspoken [congressional] assumption'" in Oliphant, 435 U.S. 191 (1978)).

(220) See, e.g., Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968); United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975); Antoine v. Washington, 420 U.S. 194 (1975); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985).

(221) De La Hunt, supra note 167, at 690-91.

(222) Id. at 693-94 (citing Oliphant, 435 U.S. 191 (1978)).

(223) Id. at 696-97 (citing Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979)); see also Frickey, A Common Law for Our Age of Colonialism, supra note 88, at 26 (questioning the Supreme Court's disregard for the canons of construction in cases involving tribal diminishment). In a discussion of tribal diminishment cases, Professor Frickey acknowledges that the Supreme Court has authority to discontinue the "canonical method of resolving federal Indian law disputes," but questions whether the Court should do so indirectly without an adequate explanation for abandoning a "technique rooted in over a century and a half of precedent." Id. He suggests that recent Supreme Court diminishment cases have disregarded the canons in a "casual, unreflective concession to non-Indian instincts." Id.

(224) See Memorandum from Thomas P. Schlosser to the Sovereignty Protection Working Group (Sept. 24, 2001) (on file with author) (discussing legislative ratification of tribal constitutions) [hereinafter Schlosser Memo].

(225) Id.; see also Bugenig, 25 Indian L. Rep. 6139, 6141 (Hoopa Valley Sup. Ct., Apr. 23, 1998) (citing the language of Articles II and IX of the Tribe's constitution).

(226) Frank Pommersheim, The Contextual Legitimacy of Adjudication in Tribal Courts and the Role of the Tribal Bar as an Interpretive Community An Essay, in CASES AND MATERIALS ON FEDERAL INDIAN LAW 388, 389-90 (David H. Getches et al. eds., 4th ed. 1998) (citing Indian Reorganization Act of 1934, 25 U.S.C. [subsection] 461-494 (2000)).

(227) Id. at 390.

(228) Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1223 (9th Cir. 2001), rev'g en banc, 229 F.3d 1210 (9th Cir. 2000), cert. denied, 535 U.S. 927 (2002). The court held "that Congress expressly delegated authority to the Tribe to enact the ordinance in question." Id. (emphasis added).

(229) Schlosser Memo, supra note 224.

(230) See supra Parts II, III.A, and III.B (discussing the Court's generally restrictive policy in finding tribal authority over non-Indians).

(231) See generally United States v. Wheeler, 435 U.S. 313 (1978) (establishing the principle that tribes retain all inherent powers not ceded to the federal government).

(232) See Royster & Fausett, supra note 39, at 658-59 (arguing that tribes should have the same power and control over the environment and natural resources within their territories as other sovereigns).

(233) See Schlosser Memo, supra note 224. Mr. Schlosser, attorney for the Hoopa Valley Tribe, stated that the en banc ruling "corroborates [his] view that a legislative ratification of tribal constitutions can fix the Atkinson problem" (referring to Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001), which held that a hotel occupancy tax upon nonmembers on non-Indian fee land on reservation was invalid).

(234) See Bugenig, 266 F.3d 1201, 1210 (9th Cir. 2001) (noting that the Court has rarely addressed congressional delegation of authority over non-Indian fee lands within reservations, citing United States v. Mazurie, 419 U.S. 544 (1975)). But see, eg., Federal Water Pollution Control Act, 33 U.S.C. [section] 1377(e) (2000) (authorizing tribes to be treated as states for purposes of setting water quality standards on reservations).

(235) See generally Suagee, supra note 18, at 231 (discussing the obstacles to tribal implementation of environmental regulatory, programs).

(236) See supra Part II.

JENNIFER GINGRICH *

* [c] Jennifer Gingrich, 2003. Associate Editor, Environmental Law, 2002-2003; J.D. expected 2003, Lewis & Clark Law School; B.A. 1996, University of Iowa (Psychology and Spanish). The author thanks Professor Robert Miller for his guidance as advisor to this Note.