Three Decades of Standing Firm for Justice
This year marks NARF's 30th Anniversary. As we look back over the last thirty years we can embrace a sense of pride in the many significant milestones we have achieved in the area of Indian Law and Policy. But this is hardly a time for celebration because Indian people still have not obtained equal justice under the law. Today, we still find ourselves having to address many of the most basic issues that were at the forefront when NARF was first established in 1970. Stated simply, there is much work to be done. With the election of each new Administration, state and Congressional representatives, and the appointment of new court justices, tribal sovereignty becomes more at risk of being diminished and eventually eradicated. As a result, we must continue to safeguard the rights of Tribes by re-educating and working closely with our legislative, executive and judicial leaders who are in charge of determining federal Indian policy.
The Foundation of Our Work
To better understand Indian Law and policy and the unique political and legal status that differentiates Indian people from other minority groups, one must examine the history between the U.S. government and Indian Tribes. This relationship is based on three fundamental principles: sovereignty, treaty rights and trust responsibility.
To most Americans, tribal sovereignty is either an unknown concept or it is grossly misunderstood. It is often perceived as a threat to the republic state of America, and is labeled as a separatist movement.
Sovereignty, however, is an inherent right that gives Tribes the authority and power to govern themselves. It is derived from international law, thus making Tribes sovereign nations long before the formation of the United States and continuing to remain sovereign today. The framers of the U.S. Constitution acknowledged tribal sovereignty and over the decades, the courts and Congress have affirmed it through court decisions and legislation. Tribal sovereignty empowers Indian Tribes to form governments, determine tribal membership, regulate property, tax, maintain law and order, regulate domestic relations, and regulate commerce and trade.
Treaties formalize the nation-to-nation relationship between sovereign entities - Indian Tribes and the U.S. government and Indian Tribes and state governments. A common misconception is that treaties grant special rights to Tribes. However, these are not special rights. Rather, they are federal obligations that Tribes secured in return for ceding land over to the federal government. These obligations include protecting and enhancing Indian lands and resources, ensuring the power to self-govern, and providing economic, social and educational services which are necessary to raise the standard of living and social well-being of Indian people.
Trust responsibility is the U.S. government's obligation to live up to the responsibilities they agreed to in treaties. When the U.S. government or state governments do not live up to those obligations, that is when NARF becomes involved.
Current Case Updates
Individual Indian Money Accounts Trust Fund (Cobell v. Babbitt)
In 1996, the Native American Rights Fund and private attorneys filed a lawsuit to hold the federal government accountable for the on-going mismanagement of 500,000 Individual Indian Money (IIM) trust fund accounts. By law, the accounts are held in trust by the government and are comprised primarily of money that is earned by Indians through leases of their land for oil, gas, timber, ranching and farming.
A report released by the U.S. District Court on December 6, 1999, revealed that lawyers for the U.S. Department of the Treasury destroyed 162 boxes of documents relevant to the trust funds case and then covered it up. Special Master Alan Balaran submitted the report following a month-long investigation into the matter. He concluded in his report that the Treasury cover-up continued even during proceedings earlier this year, which eventually resulted in contempt citations against Treasury Secretary Rubin and Interior Secretary Babbitt for violating the Court's discovery orders.
In a historic and long-awaited decision, Federal District Court Judge Royce C. Lamberth ruled on December 21, 1999, that the federal government has breached its fiduciary duties to the individual Indian fund beneficiaries, and cannot be trusted to carry out trust management reform without continued oversight by the Court. Calling decades of Indian trust fund mismanagement by the United States "fiscal and governmental irresponsibility in its purest form," Judge Lamberth vowed to retain jurisdiction over the case for at least five years to ensure that the government's promises to reform are kept. He ordered the government to submit quarterly reports on its progress in implementing trust reform and stressed that he would take necessary action in the event that the government does not appear to be living up to its promises. The judge characterized the outcome of the first phase of this case as a "stunning victory" for the Indian plaintiffs.
On January 3, 2000, the United States filed a petition to appeal Lamberth's decision. The government is appealing whether the Court can order the U.S. to perform an accounting and whether the Court can have oversight of the Department of the Interior and Department of the Treasury`s repair of the trust management system. The appeal has been scheduled for oral argument on September 5, 2000.
The government submitted its first quarterly report on trust reform to Judge Lamberth on March 1, 2000. The report confirmed that most of the promises made by the government during trial were empty. Trust reform is already seriously off schedule. As a result, NARF intends to ask the Court to appoint a Special Master to actively oversee trust reform from this point forward.
Meanwhile, NARF continues to prepare for trial in the second phase of the case. The second trial, a date for which has not yet been set, will involve an accounting by the government.
Alaska Inter-Tribal Council et. al. v. State of Alaska
NARF, on behalf of the Alaska Inter-Tribal Council (AITC), ten Alaska Native villages and seven individuals, filed a lawsuit in October against the State of Alaska over its failure to provide adequate police protection to Alaskans who live in off-road Native villages. The plaintiffs seek to prevent the State from using over $8 million of federal funds annually in its law enforcement programs, until it submits a plan, acceptable to the court, to eliminate its discriminatory conduct.
All urban centers, as well as communities located on the road system, are served by fully certified and trained police who can perform all tasks that police are expected to perform. In contrast, most of Alaska's off-road communities, including nearly all Alaska Native villages, either have no local police at all, or the police lack training, equipment, and certification. Village law enforcement officers are not allowed to conduct essential law enforcement functions, and are prohibited from carrying firearms. Over 87% of the population of Alaska that receives fully trained and certified local police protection is non-Native. Over 80% of the population of Alaska that does not receive such protection is Alaska Native.
Amazingly, in opposing NARF's request for a preliminary injunction, the State of Alaska has admitted that it designed its village policing program along consciously racial lines, as police for Alaska Natives. This admission is critical, as it shows that the inferior police protection Native villages receive from the State can be attributed to the State's establishment of a separate and racially defined institution for policing Native communities. Like the supposedly "separate but equal" schools for African Americans once common in the South, Alaska's development of a separate and inferior police program for Native communities is clearly unconstitutional.
A hearing on NARF's request for a preliminary injunction has been set for May.
Katie John v. United States
The federal government assumed management of subsistence fisheries on October 1, 1999, when the Alaska State Legislature failed to take action on a constitutional amendment. Shortly thereafter, the district court lifted the stay over court proceedings and then issued a final judgment on January 7, 2000, in Katie John's favor. On January 26th, the state of Alaska filed a notice of appeal. A successful appeal would render the federal protections for rural subsistence fishing unenforceable. And for Alaska Native communities across the state, a successful appeal would mean the end of traditional subsistence village life.
Alaska Native Subsistence Coalition Efforts
Frustrated by thirty years of state inaction denying them their federally protected subsistence rights, Alaska Natives announced that they will shift their efforts to secure permanent subsistence protections from Congress and federal officials. The announcement came on February 17, 2000, following a special convention called by the Alaska Federation of Natives in response to the State of Alaska's recent appeal of the Katie John decision. The move represents a significant shift from earlier efforts by Alaska Natives to work with the State to pass a constitutional amendment that would allow a public vote on the contentious subsistence issue.
State of Nevada, et. al. v. Hicks
On March 9, 2000, the U.S. Court of Appeals for the Ninth Circuit denied the State of Nevada's petition for rehearing in a case challenging tribal court jurisdiction over civil actions arising on a reservation that were brought by a tribal member against state officials in their individual capacities. In November 1999, a three-judge panel of the U.S. Court of Appeals ruled 2-1 in favor of the Fallon Paiute-Shoshone Tribe saying that the tribal court does indeed have jurisdiction in this case. With the denial of rehearing, that ruling now stands as final from the Court of Appeals.
The case began when, on two separate occasions, officers of the Nevada Division of Wildlife searched the property and confiscated the possessions of a member of the Fallon Paiute-Shoshone Tribe who lives on the Tribe's reservation. On both occasions, the State determined that the tribal member committed no crime. His possessions were returned, but in an allegedly damaged condition. As a result, the tribal member sued the officers in tribal court for various violations of his rights. The officers then contested the Tribe's jurisdiction over the case.
The Native American Rights Fund has represented the Fallon-Paiute Shoshone Tribe in this case since 1994. Melody McCoy (Cherokee), NARF's lead counsel in the case, is very pleased with the decision. "This is a terrific recognition by the federal judiciary that tribal courts are valid forums for resolving disputes that occur on Indian trust land and involve tribal members. We're not taking a position on whether these officers did anything wrong. All that we're saying is that the Tribe's court can decide that issue in the first instance." McCoy added that the State has one more chance for review of this case, in the U.S. Supreme Court. She indicated that the State has until June 7, 2000, within which to ask the Supreme Court to review the case, and "I'm sure the State will meet or beat that deadline."
The March 9th ruling by the U.S. Court of Appeals upholds prior decisions by the Tribal Appellate Court and the U.S. District Court for the District of Nevada.
Chippewa Cree Tribe of the Rocky Boy's Reservation Water Rights
President Clinton signed the Rocky Boy's Water Rights Settlement Bill into law on December 9, 1999. Congress passed the bill on November 18, 1999, after it was introduced in the Senate by Senator Conrad Burns (MT) and Senator Max Baucus (MT), and in the House of Representatives by Representative Rick Hill (MT).
The Rocky Boy's Water Rights Settlement - the first Indian water rights settlement that had the support of the Administration, as well as the State and Tribe - is the culmination of 17 years of work by the Chippewa Cree Tribe seeking a fair settlement of their water rights claims in the State of Montana. NARF has been representing the Tribe since 1987.
The settlement quantifies the Tribe's on-reservation water rights and establishes a water administration system designed to have minimal adverse impacts on downstream non-tribal water users. A more efficient and effective utilization of Spring snowpack runoff through enlarged or new storage facilities on the Reservation is a critical part of the settlement package. In addition, the bill authorizes the initial steps of a more extensive process of obtaining a long-term drinking water supply for the Chippewa Cree Tribe - a process that is vital to the survival of the Tribe. The Tribe, the State, and the Administration agree that the future drinking water needs of the Tribe can only be provided for by the importation of water to the Reservation. Toward that end, the bill authorizes the following: (1) an allocation of 10,000 acre feet of storage water to the Tribe in Tiber Reservoir, a federal storage facility; (2) seed money toward the cost of a future project to import drinking water to the Reservation; and (3) funds for the Secretary of the Interior to conduct a feasibility study to identify water resources available to meet the Tribe's future drinking water needs, to evaluate alternatives for the importation of drinking water to the Rocky Boy's Reservation, and to assess on-reservation water needs, such as the need for a wastewater treatment facility. The bill also authorizes funds for a regional feasibility study to evaluate water resources over a broader area of North Central Montana.
NARF is currently assisting the Chippewa Cree Tribe in efforts to obtain federal legislation that will authorize funds to construct a water pipeline from Tiber Reservoir to the Rocky Boy's Reservation. This effort builds upon the Tribe's recently enacted water rights settlement act. The Tribe is partnering with a number of northern Montana non-Indian communities that also seek to obtain drinking water from Tiber Reservoir. These communities, like the Tribe, suffer from an insufficient water supply and one that is of poor quality, as well.
Oglala Sioux Tribe Safe Drinking Water Code
NARF continues to work with the Oglala Sioux Tribe's Water Task Force on developing a Safe Drinking Water Code and water quality standards for the reservation waters.
Since President Clinton signed Executive Order No. 13096 on American Indian and Alaska Native Education in August 1998, NARF has represented the National Congress of American Indians and the National Indian Education Association in the implementation of the Order. In January 2000, Congress approved the President's request for $10 million in new federal dollars to train 1,000 new Indian teachers as part of the Order's implementation. In February 2000, the President asked for $10 million in continued funding for Indian teacher training in FY 2001, and $5 million to train new Indian school administrators. Congress is currently reviewing the FY 2001 budget requests.
In the Summertime
Summertime means different things for all of us: adventurous vacations to fun and far-off places, pow- wow season, family roadtrips, fishing, barbecues, baseball, gardening, etc.
Here at NARF, the long days and hot temperatures bring with them our summer law clerks - up-and- coming Indian attorneys who are eager to get their feet wet in the practice of Indian law. Starting in late May, NARF will be welcoming four Indian law students who will spend ten to twelve weeks working in our Boulder, Washington, DC, and Anchorage offices. Over the course of their clerkships, these law students will work closely with our staff attorneys and focus primarily on legal research and writing. This year, the summer clerkships are being funded by The Everett Public Service Internship Program, the University of Denver's Public Interest Law Group and the Council of Energy Resource Tribes.
Tammie Curtis (Navajo) and Kimberly Dutcher (Navajo) will be clerking in the Boulder office. Tammie attends Arizona State University's College of Law and participated in the American Indian Center's Pre-law Summer Institute at the University of New Mexico. She is active in her Native American Law Student Association (NALSA) chapter and has received many awards, including Outstanding University of Arizona Native American Undergraduate and the Outstanding Northern Navajo Nation Intern. Tammie has worked with the Secretary of Indian Affairs Office, the San Xavier Dist. of the Tohono O'odham Nation, Gila River Indian Community Law Office, DNA-San Juan County Legal Services, and the Office of the Assistant Secretary for Water and Science.
Kimberly attends Arizona State University's College of Law and is a Yates Scholar, Navajo Tribal Scholar and American Indian Graduate Center Scholar. She has earned degrees in Regional and Comparative Studies and Education and Human Development from George Washington University. Kimberly is active in her college's NALSA chapter, is Co-Chair of the NALSA Moot Court, is a Street Law Instructor, and is the Student Liaison to the ASU Indian Legal Program Committee. Kimberly's work experience includes working for Georgetown University as a Program Officer and for ORBIS Association as an Education Specialist.
Boulder's third law clerk Kelly Clarke is a second-year law student at the University of Denver College of Law. She received her graduate degree in American Indian Studies from the University of Arizona. She has worked as a law clerk at Lumbee River Legal Services and Southern Arizona Legal Aid, and has also worked with Native Seeds/ Search, the Center for Community Action and Lawyering Process. Kelly received the Outstanding Legal Intern award from Pima County's Volunteer Lawyers Program in 1999.
Doreen Nanibaa Hobson (Navajo) will be the Washington, DC, law clerk. Doreen attends Arizona State University's College of Law and received her undergraduate degree from Princeton where she was the President of Native Americans at Princeton and a member of the National Indian Education Assoc. She is a Yates Scholar, Wassaja Scholar, Fellows of the Arizona Bar Scholar and has received a Navajo Fellowship. Doreen has worked as a tutor at the Pre-Law Summer Institute, a mathematics teacher for the Chinle Unified School District, and as a library assistant in the Western Americana Special Collections section of the Firestone Library at Princeton.
Our Anchorage office will welcome Anetra Parks (Cherokee and Nez Perce) who attends the University of Colorado (CU) at Boulder School of Law. Anetra is currently a school-year clerk in the Boulder office and has worked as a library assistant at the National Indian Law Library. She is involved in NALSA, the Oyate Native American Club, Miss Indian Colorado, several Diversity Committees at CU and the I Have A Dream Foundation. She has received the Van Ek Award, the University Women's Club Scholarship, and the Academic Excellence Award. She has worked as a law clerk at Green, Meyer and McElroy, a legal research specialist at Shepards/McGraw Hill, and as a Scholarship Assistant at the CU Office of Financial Aid.
Welcome Tammie, Kimberly, Kelly, Doreen and Anetra!
The Eagle Feather
The staff and board of directors would like to honor John Echohawk, NARF Executive Director, for his thirty years of service and dedication to the Native American Rights Fund. A member of the Pawnee Tribe of Oklahoma, John has been a leading force in Indian Law and policy. As one of the most sought after experts on Indian issues and Indian law, he is often called upon to serve on special commissions and committees that are assigned to develop state, regional and national policy that will affect Indian people everywhere.
As the first graduate of the University of New Mexico's special program to train Indian lawyers, and founding member of the American Indian Law Students Association at UNM, John joined NARF in 1970 as a staff attorney. In 1977, he was hired as NARF's Executive Director. Over the years, he has received numerous service awards and recognition for his leadership in this field, including the "Spirit of Excellence Award" from the American Bar Association. John has been recognized as one of the "100 Most Influential Lawyers in America" by the National Law Journal. In 1995, he was appointed by President Clinton to serve on the Western Water Policy Review Advisory Commission and in 1992 he was a member of the Clinton- Gore transition team. Most recently, John was named "Native American Heritage Honoree" by Rocky Mountain PBS (Public Broadcasting System). He was selected because of his "on-going devotion to improving the lives of Native Americans throughout Colorado and the nation."
Congratulations, John. We greatly admire your tireless commitment to Indian issues and your inspirational leadership at NARF.
The Challenges Ahead
Over the past thirty years, there has been more Indian litigation than in the previous two-hundred years ... and the Native American Rights Fund has been involved in most of the major cases during this time. If it were simply a matter of a misunderstanding of the treaties and laws that fueled all these cases, the task of NARF would be a relatively simple one: Explain the laws and treaties as they were written and find ways to reach agreements based on the realities of today. But, clearly, these cases have been fueled by much more than misunderstanding. Racial prejudice and a continuing desire on the part of powerful members of society to destroy everything that is Native American - our cultures, our religions, our sovereignty - are the incendiary forces that we must constantly battle. These have not gone away, no matter how many cases we have won. So we must continue to fight for the rights of Native peoples, wherever and whenever we are needed. It is the right thing to do, the only thing to do. With your help, in the near future, NARF will be able to celebrate its accomplishments because we will have finally won justice for our people.