Due to the dastardly terrorists attack on our nation, almost every other news worthy event on September 11, 2001 was lost in the fog of horror that day. One Item that slipped under the radar screen that day was a decision handed down from the United States Court of Appeals for the Ninth District.
The decision in this case has wide and potentially harmful consequences to all tribal and non-tribal citizens living on fee lands within the external boundaries of an Indian reservation. The title of the case is Bugenig v. Hoopa Valley Tribe. The Court in an “en banc” decision, ruled the Hoopa Valley Tribe had the power to restrict the activities of a non-Indian living on her own land.
Many of you are familiar with other United States Supreme Court decisions holding that Tribes have very limited jurisdiction over a non-member unless the non-member activity threatens the tribal economy or cultural well being or has an active business contract with the tribe. These specific activities are known as the Montana exceptions.
Beyond the Montana exceptions, there is only one other situation that permits tribal jurisdiction over non-members. The Court has ruled that Congress has the authority to extend tribal jurisdiction over non-members only when there has been an “express delegation” of that power. This means that there must be clear and unequivocal language expressing the desire of Congress to confer this power to an Indian Tribe. Such an example would be where Congress, through the EPA can grant TSTS (Treatment Similar to States).
In Bugenig, the Ninth Circuit Appeals Court denied a non-member on fee land within the reservation, the right to cut and harvest trees on her own property. While the Tribe did exert a claim to several of the Montana exceptions, the Court ultimately decided the case on the express delegation issue.
Apparently the Tribal constitution contained language that claimed Tribal jurisdiction over all lands and individuals within their exterior boundaries. The Court ruled that since the BIA had approved and affirmed the tribal constitution that this acceptance met the criteria for express delegation.
If this decision is allowed to stand, all Indians and non-members living on fee land within Indian Country are at risk of tribal jurisdiction simply on BIA approval of tribal activities. Do you like the idea that the BIA may be allowed to freely infringe on your property rights?
If not, I ask for your support. Citizens Equal Rights Foundation (CERF) is sponsoring a writ of Certiorari to the United States Supreme Court. This writ is being filed asking the Supreme Court to hear this case and hopefully reverse and further define and restrict tribal jurisdiction over non-members.
The cost of the writ is $12,000 and CERF is in the process of raising these funds. I would like to ask all of you with a stake in this matter to consider making a cash donation to CERF. CERF is a 501(c)(3) foundation and all donations are therefore fully tax deductible under current law. You may also consider gifting shares of stock. Stock donations are fully tax deductible with no capital gains obligations to the donors. We encourage you to support our effort. Any size of donation would be greatly appreciated.