What Satisfies the “Political Integrity” Test?
Thomas P. Schlosser
Montana v. United States,
450 U.S. 544 (1981), the Supreme Court established the general proposition that
the inherent sovereign powers of an
Indian tribe do not extend to the activities of non‑members, subject to
two exceptions. It is the second
exception which is of concern here.
Tribes may exercise civil jurisdiction over non‑members when non‑members
engage in conduct on fee lands within a tribal reservation that “threatens or
has some direct effect on the political integrity, the economic security, or
the health or welfare of the tribe.”
Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), cert. denied, 535 U.S. 927 (2002), tested tribal authority over non‑Indians on fee lands within reservation boundaries. The Tribe prohibited logging within one‑half mile of an ancient ceremonial site known as the White Deerskin Dance Trail. Eventually, the Tribe won Bugenig because a special statute ratified the Tribe’s authority over non‑Indian property use.
Bugenig district court avoided the
inherent power doctrine and the
thousands of years the Hoopa people have lived in the valley near where the
Trinity and the
Tribal Supreme Court explained the history and cultural importance of the White
Deerskin Dance that the Tribe sought to protect with the logging buffer
zone. The performance and significance
of the Hoopa ceremony is well recognized by academics. E.g., A.
Kroeber & E. Gifford, World Renewal:
A Cult System of Native
Bugenig did not deny the academic
recognition of the White Deerskin Dance but suggested that “religious aspects
of the dance have been overplayed by defendants.” However, any distinction between the
cultural, social, and religious aspects of the White Deerskin Dance should have
no bearing on tribal inherent jurisdiction under the second
It seems clear that this ceremonial, as to a lesser degree other Hupa dances, presents the mechanism for the formation of social groups in this otherwise amorphous society, and by the display of wealth and prestige makes public the relative social status of these unformalized social groups.
In other words, the academic community has long recognized that Hoopa identity and “social cohesion” are linked to the White Deerskin Dance. While it has important religious aspects, the White Deerskin Dance links politically the otherwise loosely connected villages and clans into one people. The defining event in the political unification of the Hoopa people is the White Deerskin Dance.
question remains whether a defining event in the political unification of a
tribe triggers the second
exception authorizes a tribe to do such things as punish tribe members,
regulate their domestic relations and promulgate rules regarding tribal
membership or inheritance within the tribe.
Slip Op. at 12746. Rejecting any possible effect that logging by other land owners in the buffer zone might also have upon the White Deerskin Dance, Judge O’Scannlain believed that weight can be given only to the effect that Bugenig’s logging of her own particular parcel might have. He stated:
Under this analysis, we cannot say that Bugenig’s logging fundamentally threatens the Tribe’s ability to govern itself in any way. We are confident enough in the governmental strength of the Tribe to conclude that its political integrity would not be “imperiled” as required under [Yellowstone County v. Pease, 96 Fed. 3d 1169 (9th Cir. 1996)], by a selective timber harvest on a parcel of less than three acres.
Slip Op. at 12747‑48.
the Ninth Circuit en banc chose not
to adopt Judge O’Scannlain’s analysis or rely on the