Monday, March 31, 2014

United States Supreme Court Rejects Alaska's Request for Review of the Katie John Decision



Today the United States Supreme Court rejected the State of Alaska's petition for certiorari review of the Ninth Circuit's decision upholding the 1999 Final Rules promulgated by the Secretary of the Interior and the Secretary of Agriculture to implement part of the Alaska National Interest Lands Conservation Act concerning subsistence fishing and hunting rights on federal waters in State v. Norton, 3:05-cv-00006-HRH consolidated with Katie John v. United States of America, 3:05-cv-00158-HRH.

The Court's rejection of the State's appeal marks the end to nearly 27 years of litigation by the Native American Rights Fund on behalf of Ahtna elder, Katie John of Mentasta.  The Katie John cases, more than any other subsistence cases, exemplify the contentious battle waged between federal, tribal and state interests over jurisdiction of Alaska Native subsistence fishing rights (go to NARF website for full story of Katie John litigation and a Katie John profile).

In Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) ("Katie John I"), NARF established that in enacting ANILCA, Congress intended to protect subsistence fishing when withdrawing public lands in Alaska, and ANILCA's subsistence priority applies to those navigable waters in which the United States owns so called "reserved water rights," or about 60% of Alaska's inland waters.

In January 1999 the federal government issued its regulations identifying the waters in Alaska which fall under federal management.  Before the regulations became effective, the State of Alaska petitioned the Ninth Circuit Court of Appeals to hear the case en banc.  The Court agreed to have 11 judges hear the State's en banc appeal.  After briefing and oral argument, the Court of Appeals reaffirmed its earlier ruling and stated that "the [1995] judgment rendered by the prior panel and adopted by the district court should not be disturbed or altered by the en banc court."  247 F.3d 1032 (9th Cir. 2001) (Katie John II).

In 2005, the State of Alaska filed another lawsuit challenging the federal agency final rule implementing Katie John I.  Representing Katie John again, NARF brought a counter law suit and argued that the regulations did not go far enough but should have extended to Alaska Native allotments and upstream and downstream waters. (Katie John III).  In July 2013, the Ninth Circuit ruled in favor of the federal government and held that the Secretaries appropriately used notice-and-comment rulemaking, rather than adjudication, to identify those waters that are "public lands" for the purpose of determining the scope of the Act's rural subsistence policy.  The panel concluded that, in the 1999 Rules, the Secretaries applied Katie John I and the federal reserved water rights doctrine in a principled manner. The panel held that it was reasonable for the Secretaries to decide that: the "public lands" subject to the Act's rural subsistence priority included the waters within and adjacent to federal reservations; and reserved water rights for Alaska Native Settlement allotments were best determined on a case-by-case basis.  Alaska v. Jewell, 720 F.3d 1214 (9th Cir. 2013) (Katie John III).

Unfortunately, Katie John did not live long enough to see the completion of the litigation as she passed away at age 97 in the summer of 2013.  Katie's granddaughter, Kathryn Martin, expressed relief that the ruling would stand and stated, "Praise the Lord, my grandma can rest in peace."

Any questions can be directed to attorney Heather Kendall-Miller at (907) 229-0255. For a PDF of this press release, click here.

Thursday, March 20, 2014

NARF files amicus brief on behalf of NCAI and Huy supporting Native religious liberty

Last week NARF filed an amicus brief with the United States Supreme Court on behalf of NCAI and Huy supporting several Native prisoners petitioning for review of their religious liberty case.  These inmates sued Alabama because its prison grooming policies unduly restrict the traditional Native religious practice of wearing unshorn hair in violation of a federal law protecting religious exercise for prisoners.  Alabama is among a small minority of states still adhering to antiquated, restrictive policies that do not provide religious exceptions, even though the Federal Bureau of Prisons, at least 38 states, and the District of Columbia accommodate this important religious practice without incident.  To read the brief, click here.  Find related case filings at NARF's Tribal Supreme Court Project.

Wednesday, March 19, 2014

Please Join NARF on March 21, 22 and 23 for the Denver March Powwow

The Denver March Powwow now in its 40th year, is one of the largest regional pow-wows in the country.  The modern powwow is a gathering, a social occasion, and a time for Indian peoples to come together to sing and dance, and to honor the heritage that has been passed down to them from their ancestors.

We invite you to join us March 21-23 at this storied event, and to visit the NARF booth on the Promenade Level of the Denver Coliseum.  Learn more about the different styles of singing and dancing competitions hereCome grab a t-shirt or some other NARF swag and talk with NARF staff and friends!


Pictures: Grand Entry and the NARF booth with Rose Cuny,James Cuny and John Echohawk.

Tuesday, March 18, 2014

NARF Staff Attorneys Steven C. Moore and Heather Whiteman Runs Him present at Tribal Water in California Conference


This week NARF Staff Attorneys Steven C. Moore and Heather Whiteman Runs Him are in Cabazon, California presenting at the Second Annual Advanced Conference on Tribal Water in California: New legal and policy developments, sovereignty, settlements, resources and opportunities.  Steve is presenting on the panel titled "Case Studies of Recent and Attempted Settlements of Disputes Over Tribal Water Rights: The Importance of Unique Historical and Physical Characteristics" and Heather is presenting on the "Legal and Technical Considerations for Addressing Off-Reservation Pumping and Recharge That Affects the Quality of Tribal Water" panel.  For more information on the Conference, click here.

Monday, March 10, 2014

The Klamath Tribes Complete Negotiations on Proposed Upper Klamath Basin Comprehensive Agreement

March 5, 2014
For further information please contact: David Gover or Sue Noe, (303) 447-8760

Chiloquin, OR — The Klamath Tribes announced today the completion of nearly eight months of negotiations with Upper Klamath Basin stakeholders on the Proposed Upper Klamath Basin Comprehensive Agreement, and support of the Proposed Agreement by The Klamath Tribal Council.  Tribal negotiators, with the assistance of the Native American Rights Fund (NARF), worked non-stop to develop innovative solutions to resolve water and natural resource management issues in the Upper Klamath Basin.  The settlement efforts, which began in July 2013, were initiated via the Klamath Basin Task Force convened by Oregon Senators Ron Wyden and Jeff Merkley, Congressman Greg Walden, and Governor John Kitzhaber.  The Proposed Agreement now goes to Tribal members for their consideration by referendum vote, and to irrigators for their endorsement.

Klamath Tribal Chairman Don Gentry commended the work of the Tribes’ Negotiation Team.  “I want to express my gratitude to the Tribes’ Team.  They showed great fortitude throughout the process.”  Gentry further added, “And I am very pleased with the Klamath Tribal Council’s decision to support the Proposed Agreement and send this out to a referendum vote of the Tribal membership. We look forward to sharing the terms of the agreement with our community in the days to come.”

Vice-Chairwoman Vivian Kimbol expressed her support for the Proposed Agreement, stating “We are on the verge of bringing significant change that will continue the healing of the Basin for all involved.  At the end of the day any agreement needed to be balanced and recognize the needs of our members and treaty protected resources, which I think we accomplished.”

The Proposed Agreement includes three key programs:
  • A Water Use Program that will increase stream flows in the tributaries above Upper Klamath Lake – adding at least 30,000 acre-feet annually to inflows to the lake, while creating a stable, predictable setting for agriculture to continue in the Upper Klamath Basin;
  • A Riparian Program that will improve and protect riparian conditions to help restore Tribal fisheries; and
  • An Economic Development Program for the Klamath Tribes.
The Proposed Agreement also provides for four public access sites for Tribal members’ exercise of Tribal Treaty fishing rights.  The Agreement adds to, and facilitates implementation of, the Klamath Basin Restoration Agreement and Klamath Hydroelectric Settlement Agreement, which were approved by the Tribes in 2010 and amended in 2012.

NARF has represented the Klamath Tribes for more than 40 years on treaty resource matters and since 1976 on the Klamath Basin Adjudication, which confirmed the Tribes’ time immemorial priority date water rights and led to enforcement of the water rights for the first time ever during the 2013 irrigation season.  “When we consider all of the pieces together, the confirmation of the Tribes’ water rights in the Adjudication, the Klamath Basin Restoration Agreement, the Klamath Hydroelectric Settlement Agreement and now the Upper Basin Comprehensive Agreement, the Tribes have built a solid foundation to continue the restoration of the tribal fisheries and their economy” said David Gover, NARF staff attorney.

The full Agreement as well as a summary of the Agreement are available here.