Friday, February 29, 2008

NARF & Alaskan Native Village Sues 24 Oil and Energy Companies for Destruction Caused by Global Warming

CONTACT: Colleen Swan, Tribal Administrator, Native Village of Kivalina, 907-645-2153
Janet Mitchell, City of Kivalina Adminstrator, 907-645-2281
For attorney comment contact Matt Pawa 617-641-9550

Alaskan Native residents of Kivalina, AK face imminent relocation from their traditional homeland due to impact of global warming on their community. Photo by David Hocs.

                    • Lawsuit results from ravages of global warming;

                    • Case seeks relocation of Native Alaskan village in order to protect against total destruction.

                    KIVALINA, Alaska A tiny and impoverished Alaskan village of Inupiat Eskimos located in the Arctic Circle, Kivalina, filed a lawsuit Tuesday against industrial corporations that emit large quantities of greenhouse gases. Kivalina faces imminent destruction from global warming due to the melting of sea ice that formerly protected the village from coastal storms during the fall and winter. The diminished sea ice due to global warming has caused a massive erosion problem that threatens the village’s existence and urgently requires the village be relocated. The lawsuit was filed on behalf of Kivalina by two non-profit organizations-Native American Rights Fund (NARF) and The Center on Race, Poverty & the Environment- plus six law firms. NARF is a national non-profit legal and advocacy organization for Native American rights that has been based in Boulder, CO for 37 years.

                    The Native Village of Kivalina, which is a federally recognized Indian Tribe, and the City of Kivalina, which is an Alaskan municipality, filed the lawsuit Tuesday in the United States District Court for the Northern District of California, located in San Francisco.They filed the case on their own behalves and on behalf of all tribal members against defendants ExxonMobil Corp., Peabody Energy Corp., Southern Company, American Electric Power Co., Duke Energy Co, Chevron Corp., and Shell Oil Co., among others. In total there are nine oil company defendants, fourteen electric power company defendants and one coal company defendant. The suit claims damages due to the defendant companies’ contributions to global warming and invokes the federal common law of public nuisance. The suit also alleges a conspiracy by some defendants to mislead the public regarding the causes and consequences of global warming. The residents of Kivalina are among the nation’s poorest people.

                    Colleen Swan, Tribal Administrator of the Native Village of Kivalina, said “The campaign of deception and denial about global warming must stop.” She added, “Global warming and its effects are a reality we have to deal with. Peoples’ lives are in danger because of it.” Swan noted that “official reports from the U.S. Army Corps of Engineers and the Government Accountability Office have found that Kivalina is directly harmed by global warming and must relocate at an expense that could cost $400 million or more.”

                    “We need to relocate now before we lose lives,” echoed Janet Mitchell, City Administrator for the City of Kivalina. “We are seeing accelerated erosion because of the loss of sea ice. We normally have ice starting in October, but now we have open water even into December so our island is not protected from the storms.”

                    The defense of Alaska Native rights has been a long-standing priority for the Colorado-based NARF. The non-profit, with offices also in Anchorage, Alaska and Washington D.C. has represented Alaska Native Tribes for over two decades bringing litigation to protect tribal sovereignty and customary and traditional subsistence practices.

                    "In recent years it has become evident that another, perhaps more impending threat to Alaska Native lifeways looms," stated NARF Alaska attorney Heather Kendall-Miller. "Global climate changes are wreaking havoc on the Arctic causing loss of habitat and widespread erosion. Subsistence practices, too, are being threatened. Upon learning that many villages along Alaska’s coastline were eroding into the ocean necessitating relocation, NARF’s Alaska office took on the challenge of developing new litigation that would seek compensation from industry polluters for the cost of village relocation."

                    Kendall-Miller further added that, "Working with the environmental public interest firm, Center on Race, Poverty & the Environment, NARF reached out to the private bar to establish a team of top notch attorneys to develop the first climate change case that seeks damages from industry for the loss of property due to global warming. While the private firm attorneys bring the workforce and tort experience to the case, NARF brings the client and the relationship. Together this coalition of law firms hope to establish the climate change equivalent of the tobacco cases."

                    Friday, February 15, 2008

                    Tribal Supreme Court Project Update

                    Washington D.C.-In a major development, on January 4, 2008, the Supreme Court granted review in Plains Commerce Bank v. Long Family Land and Cattle Company, No. 07-411, to review a decision by the U.S. Court of Appeals for the Eighth Circuit which held that the Cheyenne River Sioux Tribal Court has jurisdiction over claims by tribal members against a non-Indian bank doing business on the reservation. The question presented by the petitioner, Plains Commerce Bank, is: “Whether Indian tribal courts have subject matter jurisdiction to adjudicate civil tort claims as an ‘other means’ of regulating the conduct of a nonmember bank owning fee-land on a reservation that entered into a private commercial agreement with a member owned corporation.” Throughout the proceeding in the federal courts, the Bank has only challenged the tribal court’s jurisdiction over the discrimination (tort) claim, leaving the breach of contract and bad faith claims unchallenged.

                    NARF is representing the Long family as pro-bono co-counsel before the Supreme Court and the Project is working with co-counsel in the preparation of the merits brief. The Project is also working with the attorneys representing the Cheyenne River Sioux Tribe, NCAI and NAICJA and others to develop a tribal amicus brief strategy in support of affirming tribal court jurisdiction. The Bank’s opening brief is due on February 14, 2008, and the Long family’s response brief is due March 12, 2008. Oral arguments will be heard on April 14, 2008.

                    The Project is closely monitoring the Carcieri v. Kempthorne, a case which involves another challenge to the Secretary’s authority to take land into trust for the benefit of Indians and Indian tribes and is currently pending before the Court on a petition for cert. The case is scheduled for conference next Friday, February 22, 2008. The Tribal Supreme Court Project has also been busy preparing amicus (“friend of the court”) briefs in two important cases the Court is reviewing that have serious implications for American Indians and Alaska Natives: Crawford v. Marion County Election Board (challenging the constitutionality of state voter identification laws which require voters to show state or federal photo identification as a requirement to vote) which was argued on January 9, 2008; and Exxon Shipping Company v. Baker (defending award of punitive damages against Exxon for destruction of subsistence fishing and hunting as result of Exxon Valdez oil spill) which will be argued on February 27, 2008.

                    For more information and for copies of briefs and other materials for each of the cases listed in the Update are available on the NARF website at The purpose of the Tribal Supreme Court Project is to strengthen tribal advocacy before the U.S. Supreme Court by developing new litigation strategies and coordinating tribal legal resources, and to ultimately improve the win-loss record of Indian tribes. The Project is staffed by attorneys with the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI) and consists of a Working Group of over 200 attorneys and academics from around the nation who specialize in Indian law and other areas of law that impact Indian cases, including property law, trust law and Supreme Court practice.

                    Victory in Cobell Case: Hearing Date Set to Discuss Remedy

                    Washington D.C.- A federal judge ruled on January 30th in favor of half-a-million Individual Indian Money account holders who argued the Department of Interior's accounting for their trust funds was totally insufficient. After 11 years of litigation in the courts and numerous Congressional hearings, in a 165-page decision, U.S. District Court for the District of Columbia Judge James Robertson declared that a historical accounting of the Indian trust is "impossible."

                    After a 10-day trial last October, Judge Robertson ruled in the Cobell v. Kempthorne case that the Interior Department is unable to perform an adequate accounting of the Individual Indian Money trust and that the government "has not" and "cannot" cure its breach of trust to hundreds of thousands of Indian beneficiaries who have never been told how much money they are owed for the use of their land. Judge Robertson called for a hearing in 30 days to begin discussions on a remedy. The hearing has now been scheduled for March 5, 2008.

                    The Cobell v. Kempthorne case was filed in 1996 by the Native American Rights Fund and private attorneys. It is brought on behalf of approximately 500,000 past and present individual Indian trust beneficiaries. The individual Indian money account holders (plaintiffs) seek a full accounting of their trust assets for the entire period that such assets have been held in trust since 1887. Trustees, without exception, have a fiduciary duty to provide accurate and complete statement of accounts to each beneficiary at regular intervals and a complete and accurate accounting upon demand. Yet, the United States has never provided an accounting to individual Indian trust beneficiaries. It has never provided beneficiaries accurate and complete statement of accounts. In addition, plaintiffs ask that the account balances be restated in accordance with the accounting. Finally, plaintiffs seek reform of the trust management and accounting system.

                    Currently, there are over 11 million acres of land held in trust for the IIM beneficiaries. More than $300 million dollars pass through the U.S. Treasury on behalf of Indians annually from oil and agricultural leases, mining and water rights, rights-of-way and timber sales, and are collected by the Interior Department for distribution to the rightful owners.

                    Although the Native American Rights Fund has not been actively involved in the case over the past year, we intend to become re-involved as prospects for a Congressional settlement of the case improve.

                    To learn more about the class action lawsuit NARF filed on behalf of American Indian and Alaska Native Tribes seeking full and complete accountings of trust funds that the United States government holds as trustee for the Tribes, visit

                    To read recent articles published in the New York Times and other publications on the Cobell decision, visit the following links:

                    "The Verdict: It's Broken" Editorial by the New York Times, 2/1/08
                    "Indian Trust Funds: It's broke, so fix it" Editorial by Seattle Post-Intelligencer, 2/4/08
                    "Settle the botched Indian trust case" Editorial by Seattle Times, 2/6/08

                    Tuesday, February 5, 2008

                    NARF Launches New Young Artists Book for Native Rights

                    Denver, CO (12/1/2007)—The Native American Rights Fund in partnership with Fulcrum Publishing has recently published a visually stunning tribute to young Native American artists and their progressive visions. A collection of artwork from around the country, Visions for the Future: A Celebration of Young Native American Artists, shares unique views on the 21st century. These works capture the vivid emergence taking shape in the Native American art world and includes writings by the young artists on their perspectives on Native rights, Native art, and the future of Indian country.

                    Visions for the Future is based on the annual art show of the same name, sponsored by the Native American Rights Fund (NARF). The goal of the art show is to raise awareness for NARF’s work and to bridge generations and communities in the struggle for Native American rights through the celebration of contemporary Native American art and culture. Exploring topics such as resistance, perseverance, pride, media coverage, and legacy, the artists in these pages will be important names to watch.

                    Visions for the Future contains:

                    • 14 featured artists in their favorite medium (songs, painting, photography)
                    • Artist background and artistic statement
                    • Introductory essays about contemporary Native American art, where the movement is heading, and the continuing struggle for Native rights
                    • Explanations by the artists of the featured works

                    “The imagery of tribal life in these pages is both contemporary combat and revered allegiance. In collection of innovative painting, sketches, digital art, existing stereotypes are confronted, new perceptions are challenged, and a history of survival is championed. Although no single song, painting, or photograph can entirely express what centuries of catastrophe has done to tribes, they can teach everyone who views them about the valiant efforts fought and won, born from an era that has reignited a vision for the future.”—Jenni Ghahate-Monet, journalist (excerpt from Visions for the Future)

                    Visit NARF's online store to purchase a copy of "Visions for the Future." A portion of book sales will benefit the non-profit legal and advocacy work of NARF.

                    NARF to Co-Counsel U.S. Supreme Court Case

                    Washington D.C.-On January 4, 2008, the United States Supreme Court accepted the petition of a non-Indian bank to review a decision of the U.S. Court of Appeals for the Eighth Circuit upholding tribal court jurisdiction over claims by tribal members against the bank. In the Supreme Court, NARF will serve as co-counsel to the Indian family business, along with their local counsel and a Supreme Court practitioner. The Response Brief is due March 12, 2008 and the case will be argued in April 2008.

                    In Plains Commerce Bank v. Long Family Land & Cattle Co., the Supreme Court granted review of a decision by the U.S. Court of Appeals for the Eighth Circuit which affirmed the district court’s holding that the Cheyenne River Sioux Tribal Court has jurisdiction over a discrimination action by tribal members against a non-Indian bank who had entered into a number of loan transactions with the Long family farming and ranching business. The question presented by the petitioner, Plains Commerce Bank, is: “Whether Indian tribal courts have subject matter jurisdiction to adjudicate civil tort claims as an “other means” of regulating the conduct of a nonmember bank owning fee-land on a reservation that entered into a private commercial agreement with a member owned corporation.”

                    In the tribal court proceedings, a unanimous jury had found in favor of the Long family, and the verdict was upheld by the tribal court of appeals based on traditional common law of the Tribe. The Eighth Circuit found that the bank had formed concrete commercial relationships with the business and its Indian owners, had taken advantage of the BIA loan guarantees and, therefore, had engaged in the kind of consensual relationship contemplated by Montana v. United States, the leading Supreme Court case on tribal civil jurisdiction over non-Indians. Montana determined that tribal courts do not have civil jurisdiction over non-Indians unless a consensual relationship has been established.

                    The Tribal Supreme Court Project is working with the attorneys representing the Long family in the preparation of the merits brief which is due March 12, 2008. The Project is also working with the attorneys representing the Cheyenne River Sioux Tribe and others to develop and coordinate a strategy for tribal amicus briefs which are due on March 19, 2008.

                    For more information on the Tribal Supreme Court Project and how you can support its important work, please visit and click on Tribal Supreme Court Project.

                    Court Denies Government’s Motion in Tribal Trust Funds Case

                    Washington D.C.-On December 19, 2007 the district court for the District of Columbia denied a motion made by the Federal Government in the Nez Perce Tribe v. Kempthorne action filed by NARF on behalf of more than two hundred tribes. The Court denied the government’s motion that this action and the thirty-six (36) other tribal trust cases before it are not properly before the Court. The Government attempted to argue that these cases should be sent back to the U.S. Department of the Interior under the Administrative Procedure Act (APA) that would allow the agency an opportunity to plan for the required accountings. The Court however denied the Government's motion. If the government does not seek interlocutory appeal of the denial of its motion, it is likely that Nez Perce Tribe v. Kempthorne and the other cases will resume proceedings.

                    Nez Perce Tribe v. Kempthorne was filed by NARF on December 28, 2006 in the federal district court for the District of Columbia. The action seeks full and complete accountings of tribal trust funds, which never have been provided by the federal government who is the trustee for the funds. The action also seeks a court order declaring that the Arthur Andersen reports prepared under a reconciliation project contract with the Bureau of Indian Affairs and provided to tribes in the 1990s are not full and complete trust fund accountings.

                    Twelve tribal plaintiffs are named in the action- Nez Perce Tribe; the Mescalero Apache Tribe; the Tule River Indian Tribe; the Hualapai Tribe; the Yakama Nation; the Klamath Tribes; the Yurok Tribe; the Cheyenne-Arapaho Tribe; the Pawnee Nation of Oklahoma; the Sac and Fox Nation; the Santee Sioux Tribe of Nebraska; and the Tlingit and Haida Indian Tribes of Alaska. However, Nez Perce Tribe v. Kempthorne was filed as a class action to protect the rights of all tribes that do not file their own actions and that choose to remain in the class. About seventy (70) tribes filed their own actions, but as many as two hundred and twenty (220) may be in the class if certification is granted. The action had to be filed by December 31, 2006 under an act of Congress that gave tribes that date as a deadline by which to challenge the accounting adequacy of the Arthur Andersen reports.

                    For more information and updates on Nez Perce Tribe, et al. v. Kempthorne, et al.
                    Tribal Trust Funds Accountings Lawsuit, please visit