Thursday, December 16, 2010

U.S. Endorses the U.N. Declaration on the Rights of Indigenous Peoples


Today, at the White House Tribal Nations Conference, President Obama made the historic announcement that the United States has reversed its previous negative vote and now endorses the United Nation Declaration on the Rights of Indigenous Peoples.

In announcing the change in position, President Obama stated… "And as you know, in April, we announced that we were reviewing our position on the U.N. Declaration on the Rights of Indigenous Peoples. And today I can announce that the United States is lending its support to this declaration. The aspirations it affirms - including the respect for the institutions and rich cultures of Native peoples - are one we must always seek to fulfill… But I want to be clear. What matters far more than words - what matters far more than any resolution or declaration - are actions to match those words... That's the standard I expect my administration to be held to."

The United States is the last of four countries who voted against the Declaration in September 2007 to reverse its vote and to join the international chorus of voices recognizing the fundamental rights of indigenous peoples. Australia, Canada and New Zealand had previously reversed their opposition to the Declaration.

Indigenous peoples world-wide have worked on the Declaration since the late 1970s. The Native American Rights Fund has worked on the Declaration with its client, the National Congress of American Indians, since 1999. The Declaration affirms the collective human rights of Indigenous peoples across a broad range of areas including self-determination, spirituality, land rights, and rights to intellectual property.

Tuesday, December 7, 2010

The Stockbridge-Munsee Land-Claim Settlement Agreement Stands On Firm Legal Ground


By: John E. Echohawk, Executive Director, Native American Rights Fund, Boulder, CO

On November 22, 2010, New York State, Madison County, the Town of Stockbridge and my client, the Stockbridge Munsee Band of Mohican Indians, signed an historic land-claim settlement agreement. This settlement, if joined by the Department of the Interior, will resolve with finality Stockbridge’s claim to more than 23,000 acres in central New York. But this agreement will do much more than end a 24-year-old lawsuit.

In addition to concluding decades of contentious litigation that has strained the social fabric of many central New York communities, this settlement provides important benefits to the Stockbridge-Munsee Tribe. First and foremost, it recognizes what so many seem to have either overlooked or chosen to ignore—from time immemorial until the early 1700s the Mohican Indians lived and prospered in the Hudson River valley. In 1609, the Mohicans welcomed Henry Hudson and the crew of the Half Moon to the New World. The Mohican villages are now gone from the banks of the Hudson, but the bones of their ancestors reside there to this day and, tragically, it is not uncommon for them to be plowed to the surface every spring in farmers’ fields up and down the valley. For native peoples, whose very identity is for all time intertwined with ancestry and place, this is a travesty that is at once heartbreaking and humiliating.

These circumstances need not endure—the Stockbridge land-claim settlement agreement will help the Tribe mitigate the ongoing loss of cultural resources by creating a tribal-state cooperative process to protect historic sites. And, by authorizing development of a destination resort and casino in Sullivan County, it will provide the Tribe with the financial resources that will ensure that its cultural resources in the Hudson valley are protected. In addition, the settlement promises substantial benefits for the people of New York State. By creating thousands of non-Indian jobs, much needed development in the economically depressed Catskills region, and a desperately needed multi-million-dollar revenue stream for New York State, the agreement creates opportunities for Indian and non-Indian communities alike.
But in the days following its public announcement, the Stockbridge agreement has been loudly criticized in the press by the Tribe’s business competitors, both Indian and non-Indian, because it supposedly stands on legal footing so shaky that it cannot possibly win approval by the Interior Department. Specifically, it has been said that a tribal land-claim settlement agreement, to be effective, must be ratified by Congressional action. Because approval of this settlement is so critical to my client, they have asked me to publicly explain the legal underpinnings of its settlement agreement. As this non-Congressional settlement avenue was initially proposed by me to the Interior Department’s top lawyer for Indian Affairs, I am happy to set forth what I and the other Indian-law practitioners on the Tribe’s legal team regard as the agreement’s rock-solid legal footing.

First, it is true that most Indian land claims have been resolved by Congressional acts. Indeed, my firm, the non-profit Native American Rights Fund has initiated and pursued land-claim litigation on behalf of several eastern tribes which has resulted in the enactment of Congressional settlement legislation. But, in 2005 it became apparent that a non-Congressional settlement avenue might also be available to tribes to settle the few remaining Indian land claim cases, most of which, for complicated reasons unique to New York, are situated there. In that year, the Seneca Nation’s claim to land surrounding Cuba Lake was resolved using essentially the same mechanism we have employed in the Stockbridge agreement. In that case, the Seneca Tribe, the United States and the State entered into a three-party agreement whereby New York returned some of the land around the lake to the Senecas. In return, the Senecas permanently dismissed their claim. Stockbridge will be the second New York Indian land-claim suit to be resolved without an act of Congress.

Turning now to the federal statutes and regulations governing gaming on off-reservation lands, we must first understand that Congress’ primary purpose in passing the 1988 federal law governing Indian gaming was to promote tribal self-sufficiency and economic development. This law, the Indian Gaming Regulatory Act, or “IGRA,” permits Indian tribes to conduct gaming operations on their reservations and on certain off-reservation lands, but only if those lands also qualify as “Indian land.” The most common type of off-reservation “Indian land” is land held in trust for a tribe’s benefit by the Bureau of Indian Affairs. While the BIA has continuing authority to accept land in trust upon request by the title holder (usually a tribe), IGRA limits this power by prohibiting gaming on non-reservation land acquired after 1988.

But the 1988 act makes four narrow exceptions to this general prohibition, and one of these, the exception for lands “taken into trust as part of a settlement of a land claim,” is the exception relied on in the Stockbridge settlement agreement.
In 2008, the Bureau of Indian Affairs amended its IGRA-implementing-regulations to allow gaming on tribal land acquired by BIA in trust if it was acquired pursuant to a settlement agreement to which the United States is a party and some portion of the land claimed by the tribe in its land-claim lawsuit had been returned to the tribe via a 2005 Seneca-type land-claim settlement agreement. Previously, BIA’s regulations had envisioned gaming only on land-claim-settlement lands acquired by tribes under an act of Congress extinguishing the tribe’s Indian title and directing BIA to take land into trust. But the 2008 amendment meant that, for the first time, BIA recognized it could also lawfully allow gaming on land accepted in trust as part of a settlement agreement that finally resolved tribal land-claim litigation. As BIA’s amended regulation facilitates permanent resolution of contentious litigation that, for decades, had clouded innocent landowners’ titles and undermined economic development in a number of locales within the original 13 states, it rests on solid policy grounds. The reader should also understand that the kind of Indian land claim addressed by IGRA’s land-claim exception arises, virtually without exception, only within the boundaries of the original 13 states. For this reason, as well as the fact that virtually all of the non-New York Eastern Indian land claim cases have been either litigated to conclusion or resolved by acts of Congress, fears of an expansion of off-reservation Indian gaming based on the Stockbridge precedent appear to be unfounded.

In conclusion, while the Stockbridge settlement agreement utilizes federal statutes and agency regulations in a way that has not been done before, it falls squarely within the intent and purpose of the controlling law. Because the legal authority to enter into the agreement is clear, we are confident that the Department of the Interior will decide to approve the Stockbridge-New York land-claim settlement agreement.

Tuesday, October 19, 2010

Native American Rights Fund Reaches 40-Year Milestone

Flagship Indian Rights Organization to Celebrate Four Decades of Service October 29th at Chickasaw Nation’s WinStar World Casino

Forty years after opening its doors as a pilot project to provide legal services to American Indians nationwide, the Native American Rights Fund (NARF) will host a two-day celebration of four decades “Defending Tribal Sovereignty.” Established in 1970, NARF is the oldest and largest nonprofit law firm dedicated to asserting and defending the rights of Indian tribes, organizations and individuals nationwide.

NARF, which stemmed from government-funded legal service programs for the poor and disadvantaged in the 1960’s, will commemorate its 40th year of serving the American Indian community on October 29th at the Chickasaw Nation’s WinStar World Casino in Thackerville, OK.

“Community, tradition, culture and sovereignty are integral values to Native American people,” said John Echohawk, Executive Director of NARF. “This celebration is not only a recognition of NARF’s four decades of service, but also the commitment by American Indians to hold these values sacred.”

The event includes an Indian Law Forum, which will highlight the history of and review current concerns and challenges in Indian law. Attendees will have the opportunity to contribute to a collective vision for the future of NARF’s direction in Indian Law.

NARF will also host a celebration dinner to highlight 40 tribes, individuals and organizations that significantly impacted NARF in its 40 years of operation. Among those honored will be former NARF attorney Arlinda Locklear, who became the first American Indian woman to argue a case before the U.S. Supreme Court; and Walter Echo-Hawk for his tremendous contributions to the Native American Graves Protection and Repatriation Act.

Registration for the event is open to anyone. Those interested in participating in the Law Forum and Anniversary Dinner are invited to visit www.narf.org or call (303) 447-8760.

About the Native American Rights Fund
Founded in 1970, the Native American Rights Fund (NARF) is the oldest and largest nonprofit law firm dedicated to asserting and defending the rights of Indian tribes, organizations and individuals nationwide.

NARF’s practice is concentrated in five key areas: the preservation of tribal existence; the protection of tribal natural resources; the promotion of Native American human rights; the accountability of governments to Native Americans; and the development of Indian law and educating the public about Indian rights, laws, and issues.
www.narf.org

For more information, please contact Jennifer Redbone at 303-447-8760 or Jennifer@narf.org.

Thursday, October 14, 2010

Pamunkey Indian Tribe Files for Federal Acknowledgment

After years of preparing the necessary historical, legal, genealogical and anthropological evidence to fully document its petition for federal acknowledgment, the Pamunkey Indian Tribe, located on the Pamunkey Indian Reservation, Virginia, filed its petition with the Office of Federal Acknowledgment, Bureau of Indian Affairs (BIA) on October 14, 2010. It is the only Indian Tribe located in the Commonwealth of Virginia to have filed a fully documented petition. Established no later than 1646, the Pamunkey Indian Reservation is located next to the Pamunkey River, and adjacent to King William County, Virginia. The Reservation comprises approximately 1,200 acres and is the oldest inhabited Indian reservation in America.

The history of the Pamunkey people is rich and well documented. In the course of collecting evidence for the federal acknowledgment petition, researchers compiled more than a thousand documents recording their existence from the period of first European contact through the present. These documents comprise official censuses, correspondence between the Pamunkeys and officials of the Commonwealth and U.S. governments, numerous newspaper stories, church and school records, books by prominent scholars, popular authors, and federal officials, memoirs and much more. Because of these rich resources, continuous, detailed genealogies have been created for the Pamunkey Tribal members, which trace their lineage back over two hundred years.

Notably, documents have been preserved both in the United States and England that show the continual existence of the Pamunkey Indian Tribe as an independent sovereign since the first visit of Capt. John Smith in 1607, when the English settled Jamestown. At this time, Powhatan, father of Pocahontas, ruled a vast empire which included the great and powerful Pamunkey Indians who were at the core of his empire. A Treaty relationship between the Pamunkeys and Great Britain in 1646, followed by the Treaty of Middle Plantation in 1677, is still honored between the Pamunkeys and the Commonwealth of Virginia. One expression of this continuing relationship is the annual tribute ceremony at Richmond, Virginia where deer and other wild game are presented to the Virginia Governor by the Pamunkey Chief and members of Tribal Council.

The Tribe has survived intact as an identifiable Indian tribe, although they are not yet federally acknowledged. Tribal existence does not depend on federal acknowledgment. It is, however, necessary to establish a government-to-government relationship between the Tribe and the Federal government, which allows the Tribe access to federal services and benefits. The Tribe’s petition documents their continued existence from 1789 to the present and their self-governance throughout this time, which meets the federal acknowledgment regulations.

The Pamunkey Chief and Tribal Council state that “Current Pamunkey Tribal members respect and appreciate what our ancestors have accomplished since first European contact, especially their sustained and successful efforts to maintain the lands, identity and sovereignty that have belonged to the Pamunkey Indians for thousands of years. We believe that federal acknowledgment is the natural means to continue those traditions and honor the ancestors who have given us our birthright. We look forward to the day our existence as an Indian Tribe is formally acknowledged by the United States.”

The Native American Rights Fund (NARF) has represented the Pamunkey Indian Tribe in this effort since 1988, joined by the law firm of Tilden McCoy, LLC this year. For any questions, please contact Robert Gray, Chief, Pamunkey Indian Tribe, 804.339.1629 or RGray58@hughes.net; Tribe's legal counsels: Mark C. Tilden, Tilden McCoy, LLC at mctilden@tildenmccoy.com, 303.323.1922 or 1942 Broadway, Suite 314, Boulder, Colorado 80302, or David Gover, NARF, dgover@narf.org, 303.447.8760 or 1506 Broadway, Boulder, CO 80302.

Monday, October 11, 2010

Shinnecock Nation's federal acknowledgment finally realized

The Shinnecock Indian Nation (Nation) and the Native American Rights Fund (NARF) are celebrating the October 1, 2010 decision by the U. S. Interior Board of Indian Appeals (the “IBIA”) dismissing two requests for reconsideration of the U.S. Department of the Interior’s Final Determination for Federal Acknowledgment of the Nation (the “FD”), because the requesters failed to demonstrate that they were interested parties under the federal acknowledgment regulations. With the ruling, the FD is immediately effective, thereby rendering the Nation the 565th federally recognized Indian nation in the United States. NARF is proud and honored to have represented the Nation in its federal acknowledgment petition efforts during this time, along with Mark C. Tilden of the law firm Tilden McCoy, LLC.

The decision ends a 32-year saga initiated by the Nation and NARF when NARF filed the Nation’s initial petition and litigation request in 1978 with the U. S. Department of the Interior. The events in the following years finally culminated in the Department issuing a FD dated June 13, 2010 concluding that the Nation met the seven mandatory federal acknowledgment criteria under 25 C.F.R. § 83.7. (See 75 Fed. Reg. 34,760 (June 18, 2010)). The FD was challenged in the IBIA by the requesters who claimed to be interested parties. But, the IBIA rejected their challenges.

Chairman Randy King of the Nation's Board of Trustees eloquently stated, "After 32 years, the Shinnecock Indian Nation has finally obtained formal federal acknowledgment, thus closing a long chapter on the Nation's epic struggle. The Native American Rights Fund was part of this effort and the Nation is grateful that it crossed the finish line with NARF by its side.”

John Echohawk, NARF Executive Director, reflected on the long fight by his modern day warriors, the NARF attorneys, lamenting “It took forever to achieve federal acknowledgment for Shinnecock, but with the persistence of the Nation and the expertise of former NARF attorney Mark Tilden and NARF attorney Kim Gottschalk, we finally got it done.”

The Shinnecock Indian Nation is located on the Shinnecock Indian Reservation, adjacent to Southampton, New York.

Tuesday, October 5, 2010

Hogan v. Kaltag Tribal Council Decision

October 4, 2010

FOR IMMEDIATE RELEASE

Contact: Natalie Landreth, Staff Attorney and Counsel for Kaltag, (907)276-0680.

This morning the United States Supreme Court declined to hear the State’s appeal in the case of Hogan v. Kaltag Tribal Council, thus effectively ending the case and clearly reinforcing the rule that tribal courts have authority to initiate and fully adjudicate children’s cases.

The Kaltag Tribal Council had taken emergency custody of one of its member children due to allegations of abuse and neglect and, after conducting hearings and finding a suitable home, it terminated the rights of the birth parents and issued an order of adoption to the adoptive parents in Huslia. Kaltag then notified the State of Alaska Bureau of Vital Statistics about the adoption and requested a new birth certificate reflecting the names of the adoptive parents and the new last name of the child. The State refused, claiming that it did not owe full faith and credit to the decision of the Kaltag Tribal Court because Kaltag did not have jurisdiction to initiate the case at all.

In the fall of 2006, NARF filed a lawsuit on behalf of the Kaltag Tribal Council and the adoptive parents to enforce the full faith and credit provision of the Indian Child Welfare Act (ICWA). In February 2008, the United States District Court rejected the State’s claims and held that Tribes have jurisdiction to adjudicate adoptions and child-in-need-of-aid (CINA) type cases over their member children, and that the Tribal Court’s decisions are entitled to full faith and credit by the State. In a detailed and thoughtful opinion, the Court reaffirmed what the United States Supreme Court stated in the Holyfield case that the ICWA created “concurrent but presumptively tribal jurisdiction in the case of children not living on a reservation.” The Court also noted that denying tribal jurisdiction in CINA-type cases would leave Tribes “powerless to help children in their own villages at the most critical time.” The Court’s decision was then summarily affirmed by the Ninth Circuit Court of Appeals.

This case reaffirms the rule that when Tribes adjudicate domestic matters of their own member children, whether it is a simple voluntary adoption or a CINA-type case, their decisions are entitled to full faith and credit.

Counsel for Kaltag, Natalie Landreth, said “The fact is that the Kaltag Tribal Court was doing what it, and the 561 other tribes in this country, has been doing since time immemorial: taking care of their own children. This case never should have been appealed to the United States Supreme Court, and the Plaintiffs are very glad that their victory stands.” Moreover, the Native American Rights Fund and plaintiffs Kaltag Tribal Council and Hudson and Selina Sam call upon Governor Parnell and Attorney General Sullivan to rescind the Renkes Opinion issued in October 2004 and instead take this opportunity to work with tribes and tribal courts to ensure the protection of all children, no matter which court their case is in.

Monday, October 4, 2010

Supreme Court Update Available

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the NARF website (www.narf.org/sct/index.html).

The U.S. Supreme Court held its opening conference on Monday, September 27, 2010, in which it considered eight petitions for writ of certiorari in Indian law and Indian-law related cases. In its order of October 4, 2010, the Court requested the views of the U.S. Solicitor General in one Indian law case, Thunderhorse v. Pierce, which seeks review of a decision by the U.S. Court of Appeals for the Fifth Circuit which held that the prison’s enforcement of its grooming rules, including the prohibition of long hair on men with no exception for Native American religious practitioners, does not violate the Religious Land Use and Institutionalized Person’s Act.

Without comment, the Court denied review of the other seven Indian law petitions (see the full update memo for details). The denial of review preserves important victories in the lower courts in Hoffman v. Sandia Resort & Casino and Hogan v. Kaltag Tribal Council. In Hoffman v. Sandia Resort & Casino, the Court denied a petition seeking review of a decision by the Court of Appeals of New Mexico which held that the doctrine of tribal sovereign immunity barred a non-Indian’s claims related to a $1.5 million jackpot payout from a slot machine that “malfunctioned.” The Court of Appeals also held that the limited waiver of immunity within the tribal-state gaming compact for physical injury to persons or property did not apply to his claims. The petitioner had asked the U.S. Supreme Court to carve out “a narrower and more equitable application of tribal immunity in the context of tribal gaming under the provisions of the Indian Gaming Regulatory Act.”

In Hogan v. Kaltag Tribal Council, the Court denied the State of Alaska’s petition seeking review of a Ninth Circuit decision which upheld the authority of the Kaltag Tribal Court over a tribal member-child placement proceeding. In the view of the State, since there are no reservations (with one exception) in Alaska, Native villages have no authority under the Indian Child Welfare Act over child placement proceedings, except the authority to request transfer of tribal member-child placement proceedings from state courts. In its petition, the State sought to characterize the dispute as a challenge to “the tribe’s effort to enforce a decree entered in a child custody proceeding involuntarily initiated in tribal court involving non-members domiciled outside of Indian country.” The Court had invited the U.S. Solicitor General to file a brief expressing the views of the United States in which the Solicitor General recommended that the Court deny review.

The Court’s next scheduled conference is October 8, 2010, during which it will consider Madison County v. Oneida Indian Nation of New York. In Madison County, the Second Circuit held that the Tribe is immune from suit in foreclosure proceedings for non-payment of county taxes involving fee property owned by the Tribe. This petition is the latest chapter of a lengthy dispute over payment of taxes addressed by the Supreme Court in 2005 in City of Sherrill v. Oneida Indian Nation of New York. Five amicus briefs, including an amicus brief on behalf of the State of New York joined by seven other states, have been filed in support of the petition. This is definitely a petition to watch!

You can find copies of briefs and opinions on the major cases we track on the Project’s website (www.narf.org/sct/index.html).



To view the complete Update Memorandum CLICK HERE.

Friday, October 1, 2010

NARF Co-HOSTS EDUCATION MEETING at NIEA ANNUAL CONFERENCE

Join NARF for the 2010 TEDNA ANNUAL MEMBERSHIP MEETING, Sunrise Room, San Diego Town and Country Convention Center, San Diego, CA, Wednesday, October 6, 2010, 9 a.m. to 3 p.m. (pst), in conjunction with the NIEA Annual Conference. The meeting is free and no registration required. Topics include:

Tribal Sovereignty in Federal Education Law: What should it Look Like?

Idaho Indian Education Coordinator and NIEA President Elect, Mary Jane Oatman Wak-Wak joins the BIE Director, Keith Moore, and Don Yu, Special Council, Department of Education, and Dr. David Beaulieu for a discussion on tribal sovereignty in the reauthorization of the Elementary and Secondary Education Act. Topics include increasing tribal access to federal education funding; increasing the role of tribal governments in public schools; and increasing the role of culture and language in Indian education.

Implementing Tribal Sovereignty in Education: What Does Your Tribe Need?

National Indian Education leaders Kevin Shendo, New Mexico Indian Advisory Council Chair and Pueblo of Jemez Education Director; Denny Hurtado, Washington State Indian Education Director; and Quinton Roman Nose, TEDNA President unite to discuss building tribal education department capacity. Topics include building data systems, infrastructure to support programs and services, and building partnerships to improve academic performance.

Join U.S Department of Education Data Specialists and Acting Director of Indian Education:

Ever wondered what type of data the U.S. Department of Education has on tribal students? Ever needed more data on your tribal students to shape tribal education programs and services? Come to this workshop to find out how to access data on tribal students.

See www.tedna.org or email info@tedna.org for more information.

Monday, September 27, 2010

Supreme Court Update Available

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the NARF website.

The U.S. Supreme Court is still in summer recess, with the October 2010 Term scheduled to start on Monday, October 4, 2010. After a relatively quiet October 2009 Term in which the Court did not issue a single Indian law decision, Indian country may be facing rough waters once again with the upcoming October 2010 Term. The Court has already granted review in United States v. Tohono O’odham Nation, with the likelihood of cert grants in at least one, possibly two or more other Indian law and Indian law-related cases.

Next Monday, September 27, 2010, the Supreme Court will conduct its opening conference. Eight of the 16 petitions currently pending before the Court (see full report) will be considered during this conference. The Project has been closely monitoring each of these petitions, in particular petitions in which the tribal interests prevailed in the lower courts. The Project is working with the Tribes and their attorneys in securing those victories through the denial of certiorari. For example, the United States just filed a petition in United States v. Jicarilla Apache Nation seeking review of the decision of the U.S. Court of Appeals for the Federal Circuit which recognized a fiduciary exception to the attorney-client privilege in tribal trust cases. This fiduciary exception allows Indian tribes to obtain information regarding communications between the Department of the Interior and its attorneys relating to trust management otherwise protected by the privilege.

A second example is the State of Alaska’s petition in Hogan v. Kaltag Tribal Council asking the Court to review a Ninth Circuit decision which upheld the authority of the Kaltag Tribal Court over a tribal member-child placement proceeding. In the view of the State of Alaska, since there are no reservations (with one exception) in Alaska, Native villages have no authority under the Indian Child Welfare Act over child placement proceedings, except the authority to request transfer of tribal member-child placement proceedings from state courts. The Court invited the U.S. Solicitor General to file a brief expressing the views of the United States. The good news is that the Solicitor General recommended that the Court deny review. This petition will be considered in the Court’s opening conference.

One final example is the petition filed in Madison County v. Oneida Indian Nation of New York seeking review of a decision by the U.S. Court of Appeals for the Second Circuit which held that the Tribe is immune from suit in foreclosure proceedings involving property owned by the Tribe for non-payment of county taxes. This petition is the latest chapter of a lengthy dispute over payment of taxes addressed by the Supreme Court in 2005 in City of Sherrill v. Oneida Indian Nation of New York. Five amicus briefs, including an amicus brief on behalf of the State of New York joined by seven other states, have been filed in support of the petition. This petition will likely be scheduled for conference in early October.

You can find copies of briefs and opinions on the major cases we track on the Project’s website. You can read the full Update by clicking HERE.

Wednesday, September 22, 2010

Steve Moore to Speak at Tribal Water Law Conference

NARF attorney Steve Moore will be speaking at the Tribal Water Law Conference on October 21 & 22, 2010, in Las Vegas, NV. For more information, please click HERE.

Monday, June 7, 2010

Supreme Court Update Available

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the NARF website (www.narf.org/sct/index.html).


PETITIONS FOR WRIT OF CERTIORARI GRANTED

Currently, a writ of certiorari has been granted in one Indian law case:

UNITED STATES V. TOHONO O’ODHAM NATION (NO. 09-846) – On April 19, 2010, the Supreme Court granted review of a decision by the U.S. Court of Appeals for the Federal Circuit in Tohono O’odham Nation v. United States. In Tohono O’odham, the Federal Circuit found that 28 U.S.C. § 1500 does not preclude jurisdiction in the Court of Federal Claims when a Indian tribe has also filed an action in Federal District Court seeking different relief (e.g. money damages versus historical accounting). Specifically, the question presented is:

Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over "any claim for or in respect to which the plaintiff * * * has * * * any suit or process against the United States" or its agents "pending in any other court." The question presented is: Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.
A number of Indian tribes have filed identical claims for breach of fiduciary duties in both the Court of Federal Claims and the Federal District Court seeking separate relief. At present, the United States opening brief on the merits is due on June 29, 2010. The Tribe’s response brief on the merits is due on July 6, 2010 and the United States’ reply brief is due on August 19, 2010.

Click here to read full update.

Thursday, May 20, 2010

Supreme Court Update Available


The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the NARF website (www.narf.org/sct/index.html).

On April 19, 2010, the Supreme Court granted review in United States v. Tohono O’odham Nation, a decision by the U.S. Court of Appeals for the Federal Circuit involving claims for breach of fiduciary duties which could impact a number of other “companion” cases filed by Indian tribes against the United States in both the Court of Federal Claims and the Federal District Court. In Tohono O’odham, the Federal Circuit found that 28 U.S.C. § 1500 does not preclude jurisdiction in the Court of Federal Claims when a Indian tribe has also filed an action in Federal District Court seeking different relief (e.g. money damages versus historical accounting). Specifically, the question presented is:

Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have
jurisdiction over "any claim for or in respect to which the plaintiff * * * has
* * * any suit or process against the United States" or its agents "pending in
any other court." The question presented is: Whether 28 U.S.C. 1500 deprives the
CFC of jurisdiction over a claim seeking monetary relief for the government’s
alleged violation of fiduciary obligations if the plaintiff has another suit
pending in federal district court based on substantially the same operative
facts, especially when the plaintiff seeks monetary relief or other overlapping
relief in the two suits.

Click here to read full update.

Friday, May 14, 2010

Congress Preparing to Take Major New Action Proposed by NARF for Native American Students

Boulder, CO - May12, 2010 – The U.S. Congress is preparing to reauthorize the Elementary and Secondary Education Act (ESEA), which is the most important federal law that applies to American Indian and Alaska Native tribal students. There are over 650,000 elementary and secondary tribal students nationwide. Over 90% of these students attend state public schools; the others are served primarily by schools funded through the Bureau of Indian Education (BIE).

The ESEA was first enacted in 1965. In each periodic reauthorization, Congress has attempted to address the needs of tribal students with various supplemental programs, advisory committees, and unfunded options and mandates. Major reports have repeatedly suggested more fundamental changes are needed to improve tribal student opportunities and performance. For over 20 years, the Native American Rights Fund (NARF) and other experts have urged Congress that the key to tribal student success is to enhance and support the roles of sovereign tribal nations in the ESEA. NARF is anticipating that this Congress, and the current Administration, will finally support such efforts.

On Friday, May 14th at 10:00 a.m. EDT the Senate Committee on Indian Affairs will host a briefing on Tribal Education Departments to discuss NARF's legislative recommendations on behalf of its client, the Tribal Education Departments National Assembly (TEDNA). TEDNA is a membership organization for the Education Departments, Divisions, and Agencies of American Indian and Alaska Native Tribes. Over 200 of this country's over 562 federally recognized tribes have such Departments.

Monday, April 12, 2010

NARF 2009 Annual Report Now Available Online

The Native American Rights Fund 2009 Annual Report is now available online. Click on the cover image to view.

Tuesday, March 30, 2010

Supreme Court Update Available

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the NARF website (http://www.narf.org/sct/index.html).

Although no Indian law cases have been granted review by the Court, several new petitions have been filed in the past several weeks. At present, there are 16 petitions pending, with a total of ten petitions having been denied this term. We are monitoring several petitions closely, including: (1) Wolfchild v. United States, a case that could become a vehicle for the Court to further erode the nature of the United States’ trust responsibility, and to limit the scope of the fiduciary duties the United States owes to the Indian people; (2) Rosenberg v. Hualapai Indian Nation, a case involving the doctrine of tribal sovereign immunity as it applies to tribal enterprises; and (3) United States v. Tohono O’odham Nation, another case involving claims for breach of fiduciary duties which could impact a number of other cases filed by Indian tribes against the United States in both the Court of Federal Claims and the Federal District Court seeking separate relief.

However, most of the resources of the Tribal Supreme Court Project have been focused on litigation pending in the lower courts. Project attorneys are tracking lower court litigation based on subject matter area to allow the Project an opportunity to assist in earlier stages of litigation. For example, the Project has been monitoring five cases involving challenges to Reservation status of certain lands (diminishment) or challenges to the continuing existence of an entire Reservation (disestablishment). Currently, in Osage Nation v. Irby (Oklahoma Tax Commission), the Project is working diligently with the attorneys representing the Osage Nation in developing an amicus strategy and preparing amicus briefs in support of their petition for rehearing of a Tenth Circuit decision which held that the legislative history and subsequent events to the Osage Allotment Act evidence Congress’ intent to disestablish the Osage Reservation.

In similar fashion, the Project has been monitoring 11 cases involving challenges to the authority of the Secretary to take land in trust for tribes based on the Supreme Court’s decision last year in Carcieri v. Salazar. Currently, the Project is preparing materials and developing strategy in anticipation of amicus support for the tribes and the United States as the Carcieri-related litigation works its way through the courts. The Project is also tracking litigation involving challenges to the doctrine of tribal sovereign immunity; challenges to the authority of Tribes to regulate the activities of non-Indians on-reservation or adjudicate disputes involving non-Indians; attempts to undermine tribal cultural values and laws protecting Native religious freedom; and attacks against the authority of tribal courts to impose consecutive sentences of more than one-year for violent crimes committed by Indians on the reservation.

Read full update here.

Wednesday, March 17, 2010

$1.5 million grant from Yocha Dehe Wintun Nation fuels Native American Rights Fund

BOULDER, Colo. – The Native American Rights Fund (NARF) has received a $1.5 million grant from the Yocha Dehe Wintun Nation of Brooks, Calif., to be distributed in $500,000 allotments over three years and used for general operating expenses and special projects.

“This generous grant provides the Native American Rights Fund fiscal security for the next three years, enabling us to focus on legal advocacy and insuring the survival of tribes and their ways of life,” said Executive Director John E. Echohawk. “Our deepest thanks go to the Yocha Dehe Wintun Nation and their dedication to the legal rights of Indian Country.”

Tribal contributions are extremely important to help underwrite NARF’s vital work. This gift from the Yocha Dehe Wintun Nation—one of the largest tribal contributions ever bestowed on NARF—not only sets an example for other tribes, but also is a testament to the value and impact of the organization’s work.

“The Tribal Council of Yocha Dehe Wintun Nation is committed to Native rights and the preservation of tribal sovereignty,” said Yocha Dehe Tribal Chairman Marshall McKay. “This grant to the Native American Rights Fund tangibly expresses our belief in the importance of the outstanding work that they do.”

Since its founding in 1970, NARF has represented more than 250 tribes in 31 states in matters that have had a significant impact on the rights of all Indian people throughout the country. NARF works to empower tribes so they can continue to live according to their Native traditions, enforce their treaty rights, insure their independence on reservations and protect their sovereignty. NARF strives to enforce and strengthen laws that are designed to protect the rights of Native Americans to practice their traditional religions, use their own languages, and enjoy their cultures. NARF also works with tribes to improve education for and ensure the welfare of their children.

Yocha Dehe Wintun Nation has a longstanding culture of giving: The Yocha Dehe Community Fund was one of the first to be established by a Native American tribe in California and the Tribe is a recognized leader in charitable giving. Over the past decade, Yocha Dehe has provided nearly $18 million in financial support to nonprofit organizations and service providers in Sacramento and Yolo Counties and other organizations supporting the Tribe’s goals for education, community health, arts and culture, the environment, community development and social services.

“The generosity of tribes is crucial in NARF’s struggle to ensure the freedoms and rights of all Native Americans,” said Echohawk. “The history of Yocha Dehe’s giving should be an example for every Native American Tribe and organization. We hope others will follow with their support of our organization and other Native organizations across the country.”

Wednesday, February 24, 2010

The State of Alaska, NARF, Northern Justice Project and ACLU Reach Settlement In Yup'ik Language and Voter Assistance Case

CONTACT: Natalie Landreth (907) 276-0680 or (907) 360-3423

Anchorage, Alaska – Alaska state officials along with Native American Rights Fund (NARF), the American Civil Liberties Union, the Northern Justice Project, four Alaska Native elders and four tribal governments today jointly announced a settlement of Nick, et al. v. Bethel, et al. According to the settlement, the state of Alaska will make enhancements to language assistance for Yup’ik-speaking voters available at elections in the Bethel area.

The resolution of the case, originally filed in June 2007 on behalf of Alaska Native elders Anna Nick, Billy McCann, Arthur Nelson and David O. David and the tribal governments of Kasigluk, Kwigillingok, Tuluksak and Tuntutuliak was hailed by all parties involved.

"This settlement recognizes improvements to language-assistance protocols implemented by the state during the 2008 and 2009 elections, while providing for enhancements to ensure that limited-English-proficient voters receive effective assistance," said Alaska Attorney General Dan Sullivan. "We support fair voting practices and effective access to the voting booth for all Alaskans, and we will vigorously implement the terms of this settlement."

“We are extremely pleased the state of Alaska will provide Yup'ik-speaking voters in the Bethel area with the tools they need to fully participate in the political process," said Natalie Landreth of Native American Rights Fund (NARF). “That is what this case was all about – equal access to the polls.”

"Our right to vote is one of the most important that we as Americans possess," said Alaska Lieutenant Governor Craig Campbell, who oversees the Division of Elections. "Here in Alaska, we want all our citizens to exercise that right, regardless of where they live or the language they speak. We are pleased to have come together to ensure that this case is a win-win for Yup'ik-speaking voters and the State of Alaska."

“Every American deserves an equal voice in the political process,” said Laughlin McDonald, Director of the ACLU Voting Rights Project. "The Constitution protects all Alaskans' right to vote regardless of what language they speak."

Key protocols for the Division of Election include:

-Training bilingual poll workers to provide language and voter assistance to voters;

-Coordinating language assistance through a bilingual staff person with a toll-free number;

-Relying on Yup'ik language experts to translate election materials, including information on ballot measures, candidates, absentee and special-needs voting and voter registration,

-Preparation of a Yup'ik-English glossary of election terms and phrases to guide bilingual poll workers providing language assistance;

-Providing sample ballots in Yup'ik;

-Pre-election publicity in Yup’ik through radio ads, television programs, public service announcements and announcements over VHF radios in villages that do not receive local radio stations;

-Undertaking outreach to the villages in the census area.

“I have said all along that all we wanted was to be able to understand what we are voting for. Now that will happen, and I am very, very happy,” said Billy McCann, a plaintiff in the case. Being a Plaintiff is not easy but when you come together to fix a problem like this, it is worth it.”

Attorneys for the state of Alaska are Assistant Attorneys General Gilman Dana S. Burke, Sarah J. Felix, Margaret A. Paton-Walsh and Michael Barnhill.

Attorneys for the Plaintiffs are Natalie Landreth of NARF; Dr. James T. Tucker; ACLU of Alaska; Laughlin McDonald of the ACLU Voting Rights Project; and James J. Davis, Jr.

back row: Joe Alexie (Tuluksak Tribal Council), Jason Brandeis (Alaska ACLU), Peter Andrew (Tuluksak Tribal Council), Michael Martin (Kasigluk Traditional Council), Jim Tucker (attorney), Nick David (Tuntutuliak Tribal Council)

front row: Jim Davis (attorney), Leo Beaver (Kasigluk Traditional Council), Robert Enoch (Tuntutuliak Tribal Council), Natalie Landreth (NARF Attorney) and Elsie Nichols (Kasigluk Traditional Council)

To view the Settlement Agreement click here.

Tuesday, February 2, 2010

Supreme Court Update Available


The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the NARF website (www.narf.org/sct/index.html).

To date, no Indian law cases have been granted review by the Court. Six petitions are currently pending, and a total of ten petitions have been denied. As anticipated, on January 15, 2010, the United States filed a petition seeking review of a decision by the U.S. Court of Appeals for the Federal Circuit in Tohono O’odham Nation v. United States. In Tohono O’odham, the Federal Circuit found that 28 U.S.C. § 1500 does not preclude jurisdiction in the Court of Federal Claims when a Indian tribe has also filed an action in Federal District Court seeking different relief (e.g. money damages versus historical accounting). According to the United States, at least 31 pairs of cases have been filed by Indian tribes based on identical claims for breach of fiduciary duties in both the Court of Federal Claims and the Federal District Court seeking separate relief.

In an unexpected development, on January 13, 2010, the Court requested a response from the United States in Wolfchild (and Zephier) v. United States, a case which involves two groups of individuals who claim to be the descendants of the “loyal” Mdewakanton Sioux. The United States had waived its right of response—usually an indicator to the Court that the case is not worthy of review. Evidently, something in the case has caught the interest of the Court. The Wolfchild petitioners are seeking review of a decision by the U.S. Court of Appeals for the Federal Circuit which reversed the trial court’s finding of breach of trust by the United States. The Federal Circuit held that (1) the 1888, 1889 and 1890 Appropriation Acts enacted for the benefit of the loyal Mdewakanton Sioux and their lineal descendants which included lands, improvements to lands and monies as the corpus did not create a trust; and (2) even if the referenced Appropriations Acts did create a trust, the 1980 Act terminated that trust by transferring beneficial ownership to the three Mdewakanton Indian communities (Shakopee Mdewakanton Dakota Sioux Community, Lower Sioux Indian Community and Prairie Island Indian Community). This case could become a vehicle for the Court to further erode the nature of the United States’ trust responsibility, and to limit the scope of the fiduciary duties the United States owes to the Indian people.

Click here to read full update.

Wednesday, January 13, 2010

Heather Kendall-Miller, NARF Attorney, Cover Story in First Alaskan Magazine


Heather Kendall-Miller, NARF Attorney in Alaska office, is profiled in First Alaskan magazine's cover story, Personal Ambition for Public Good.

To read the full article, click here.

Friday, January 8, 2010

Dawn Baum deliverse Keynote Address for Library of Congress's 2009 Celebration of Native American Heritage Month

Dawn Sturdevant Baum, Native American Rights Fund Attorney, delivered Native American Heritage Month keynote address for the Library of Congress's 2009 celebration of Native American Heritage Month on Nov. 18. This year's national theme is "Pride in Our Heritage. Honor to Our Ancestors."

To watch keynote address click here.