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MAJOR ACTIVITIES 201 3 - CASE MAP
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Native American Rights Fund Annual Report 2013
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Native American Rights Fund Annual Report 2013

Native American Rights Fund Annual Report 2013 Andrew Williams Jr Email: aj@trn.tv Mobile: +1-424-222-1997 Skype: andrew.williams.jr http://twitter.com/AWilliamsJr http://xeeme.com/AmbassadorAWJhttp://www.yatedo.com/andrewwilliamsjr http://www.slideshare.net/andrewwilliamsjr http://www.linkedin.com/in/andrewwilliamsjr http://www.facebook.com/ajactionteam http://www.facebook.com/ambassadorawj http://www.facebook.com/andrewwilliamsjr http://www.facebook.com/AJGombeyBermuda
Published on: Mar 3, 2016
Published in: News & Politics      
Source: www.slideshare.net


Transcripts - Native American Rights Fund Annual Report 2013

  • 1. COVER AND ART: Dallin Maybee is Northern Arapaho/Seneca Indian from the Cattaraugus Indian Reservation in Western New York and the Wind River Indian Reservation in central Wyoming. His Arapaho name in English loosely translates to MThunder Sound Comes Down," or "A Thunder Being is Coming this Way." Dallin comes from a long-line of well-known beadworkers including Bob Spoonhunter and Agnes Logan-Spoonhunter; and his brother Ken Williams Jr., is a renowned contemporary beadworker. In 2007, at the prestigious Santa Fe Indian Market, Dallin was awarded Best of Show, Best of Division, Best of Classification and various other awards for his exquisite artwork. Dallin is establishing himself as an exciting contemporary ledger artist whose pieces are refreshing and culturally relevant as he explores identity, traditional and contemporary Indian life, as well as the dynamic interplay between the two which has allowed Indigenous culture to evolve, survive, and nourish. Dallin's ledger pieces are not limited to antique ledger pages; his mediums have included pages from the 1583 Geneva Bible, 16th century rice paper, rawhide, and buffalo robes. Dallin regularly shows at large art markets throughout the country, and his artwork can be seen in various private and public collections. Featured articles on his work have included; Southwest Art Magazine, Native Peoples Magazine, Western Art Collector Magazine, Cowboys and Indians Magazine, and SWAIA Magazine amongst others. Dallin received his Juris Doctorate from the Sandra Day O'Conner College of Law at Arizona State University. completed his Masters Degree coursework at UCLA in Los Angeles and also has a Bachelor of Arts degree in Philosophy. Dallin is the husband to an inspiring and amazing wife, Naomi Maybee; and the proud father of a son and two daughters. Dallin can be contacted at 505-506-5293 or dallinmaybee@hotmail.com.
  • 2. Nat ive American Right s Fund Introduction . .... . . . . . . .. . . ...... ... .. . . . . . .... . . . . . . . . . . .. .... .......... ... . . . . . . . . . . . ............ . . . . . . . . . . . . . . . . . . ... .. ...... . . . . .... . ...... . ...... . . . . . . . . . . . . page 2 Chairman's Message ............ ........ .... ................ ........... ....... . ..................... . ... ................ ....... ............. ............... ... page 5 Executive Director's Report ................................................................................................................................ page 6 The Board of Directors .................................................................................................................................... page 8 The National Support Committee .................................................................................................................... page 9 The Preservation ofTubal Exlstence .............................................................................................................. page 10 The Protection ofTribal Natural Resources .................................................................................................... page 16 MAJOR ACTIVITIES 2013 - NARF CASE MAP .. . ... .... . . . . .................. ... . ... . ... . .......... ............ . . . . . . .. .... . ........ . page 24 The Promotion of Human Rights .......................................................................... ........................................ page 28 The AccountabiBty of Governments .............................................................................................................. page 38 The Development of Indian Law .................................................................................................................... page 40 Financial Report .............................................................................................................................................. page 43 Contributors .................................................................................................................................................. page 44 NARF Staff...................................................................................................................................................... page 48 Main Office Native American Rights Fund 1506 Broadway Boulder, CO 80302 303-447-8760 www.narf.org Alaska Office Native American Rights Fund 745 West 4th Avenue, Suite 502 Anchorage, Alaska 99501-1736 907-276-0680 Washington, D.C. Office Native American Rights Fund 1514 P Street, NW, Suite D (Rear) Washington, D.C. 20005 202-785-4166 Tax Status: The Nauve American Rights Fund (NARF) ls a nonprofit, charitable org.anlzaUon Incorporated In 1971 under the laws of the District of Columbia. NARFIs exempt from federal Income tax underthe provisions of Secuon 501(c)(3) of the Internal Revenue code. Contributions to NARF are tax deductible. The Internal Revenue Service has ruled that NARF Is not a "private foundaUon' as defined In Secuon 509(a) of the Internal Revenue Code. NARF was founded In 1970 and Incorporated In 1971 In Washington, D.C. Workplace Campaigns - NARF Is a member of America's Charities, a national workplace gtvtng federation. Giving through your workplace Is as easy as checking off NARF's box, #10350 on the Combined Federal Campaign (CFC) pledge form authorlzlng automatic payroll deduction. Annual Report 2013
  • 3. Nat ive Ame rican Right s Fund c: c: c c= c c= c c c c CE c IN·1·111Jl>IJl:·1·11JN The Native American Rights Fund (NARF) is the national Indian legal defense fund whose primary work centers on the preservation and protection of Indian rights and resources. NARF began its work in 1970 with a planning grant from the Ford Foundation and through the years has grown into a reputable and well-respected advocate of Indian interests. Slnce its beglnnings, NARF has worked in conjunction with many people to seek judicial and negotiated solutions to long-standing Indian grievances, uncertainties and problems. NARF's partners have included tribal leaders, tribal attorneys, government attorneys and legal services attorneys. It is time to heal our communities and our nations. Tribal nations and the United States both stand to benefit immensely by stepping towards recovery and righting the relationship that continues to suffer because of wide scale denial and ignorance of the history of the United States boarding scllool policy. Like a lot of the details of the Annual Report 2013 United States historical relations with the indigenous inhab­ itants of this land, the story of the Indian boarding school policy of the United States government has largely been written out of the history books. Through this policy, Native American children were forcibly abducted from their homes and put into Christian and government run boarding schools beginning ln the mid 1800's, continuing into the 1950's, and in some cases until the 1970's. The boarding school policy represented a shift from genocide of Indian people to a more defensible, but no less insidious, policy of cultural genocide - the systematic destruction of indigenous communities through the removal and reprogramming of their children. Children were held in isolation in regimented and sterile settings. Separated from their homes and communities, they were placed in dormitory settings fashioned after the mili­ tary model where they were controlled, trained, neglected and abused. They were punished for speaking their native languages, banned from acting in any way representative of traditional or cultural practices, stripped of tradjtional
  • 4. Nat ive Ame rican Right s Fund RU�ll-'OHD I•'.1.1� �» Ill(.KPIP.LU It11.UO.r; Cl>� Rl�<.'J·:In:n. rmaJET n:IXDl1v<LD. ;- s ·-- ... �.. . . ·- ... ' � - -c- clothing, hair and all things and behaviors reflective of their cultures. They were intentionally and sy stematically incul­ cated with shame for being Indian through ridicule of their reUgions and their life-ways; shame that became internalized as self-loathing and emotional disenfranchisement for their own cultures. Those victimized in the schools, their children, grandchil­ dren and great-grandchildren, have become the legacy of the boarding schools and the federal policy that established and sustained them. Many of those that returned to their com­ munities came as wounded human beings. Denied the security and safety necessary for healthy growth and devel­ opment, they retained only fractured cultural skills to connect them with their families and communities. These survivors were left with varying degrees of scars and skills, but most profoundly, of psychological subordination. Many report feeling self-hatred for being Indian; bereft of spirit, knowl­ edge, language and social tools to reenter their own societies. With only Umited labor skills, exacerbated by the subordi­ nated spirit trained into them, too many carried undefined u u u u u u and unremitting arudeties that drove them to alcoholism, drug abuse, violence against their own families and commu­ nities, and suicide. To address this long-standing issue, NARF was instru­ mental in the formation of the National Native American Boarding School HeaHng Coalition (N-HABS-HC or Coalition) to formulate a specific strategy and framework to pursue healing. The main goal of the CoaUtion ishealing. The full extent and depth of the impacts of the boarding schools to our nations, communities, and families and indivicllual victims must first be better understood. The Coalition will ask the Congress to create a Commission on Boarding School Policy with the full and active participation of impacted Native Americans at all stages to carry out a range of essential tasks. The tasks of the commission can be sum­ marized as providing information about what happened at the boarding schools, who was involved, what impacts are ongoing, what healing models are available and working, and what scientific developments can support healing models. Annual Report 2013
  • 5. Nat ive Ame rican Right s Fund In order to raise awareness of the issues, and to gamer support for establishment of a congressional commission, project staffhave been conducting outreach among (ma;tly) regional trilbal organizations. NARF and Coalition represen­ tatives offer a presentation on the goals of the Coalition and request a resolution in support of the plan. To date, resolu­ tions of support have been passed by National Congress of American Indians, National Indian Health Board, Atflliated Tribes of Northwest Indians, lntertribal Council of Nevada, Montana/ Wyoming Tribal Leaders Association and the Great Lakes Inter-Tribal Council. We have provided draft resolutions and had discussions with staff or leaders from a number of other regional tribal organJzations, and are con­ tinuing to contact others. Congressional members and their staff also need to be educated about the boarding school policy and its continued impacts. NARF has initiated contact with interested Congressional staff, and plans to distribute educational materials. The project will initiate one or more Congressional briefing se�ons to provide education to relevant staffers. Then we can request one or more oversight hearings to make the case for action necessary to address the continuing harms of the boarding school policy and to provide informa­ tion directly to Congressional members. The project also held discussions with the White House and sought the benefit of guidance about the prospects for Executive and Administrative attention du.ring the remain­ der of this Presidential Term. Based on those discussions, high level administrative officials, particularly in the Departments of Interior, Education, and Justice will be recruited to support and provide guidance as the project progresses. It wilJ also be essential to generate the support of the churches that were involved in the initiation and implemen­ tation of the boarding school policy. Because of their insti­ tutional histories, the churches involved in the boarding school policy might be anticipated to provide resistance to bringing the harmful aspects of those histories to Ught. However, as moral leaders and institutions that serve as guideposts for right action, the churches also have an oppor­ tunity to serve in leadership roles in providing examples of how to right a past wrong. Annual Report 2013 NARF's Funding NARF's existence would not be possible without the efforts of the thousands of individuals who have offered their knowledge, courage and vision to help guide NARF on its quest. Of equal importance, NARF's financial contribu­ tors have graciously provided the resources to give our efforts life. Contributors such as the Ford Foundation have been with NARF since its inception. The Open Society Institute and the Bay and Paul Foundations have made long term funding commitments. Also, the positive effects of NARF's work are reflected in the financial contributions by a growing number of tribal governments like the Yocha Dehe Wintun Nation, the Seminole Tribe of Florida, the Shakopee Mdewakanton Sioux Community, tlhe San Manuel Band of Mission Indians, the Muckleshoot Tribe, the Sycuan Band of Kumeyaay, the Confederated Tribes of Siletz Indians, the Tulalip Tubes, the Chickasaw Nation, and the Poarch Band of Creek Indians. United, these finan­ cial, moral, and intellectual gifts provide the framework for NARF to fulfill its goal of securing the right to self-determi­ nation to which all Native American peoples are entitled. Finally, NARF's legal work was greatly enhanced by the on­ going generous pro bona contributions by the law firms of DLA Piper and Patton Boggs LLP. Their many hours of work made it possible for NARF to present the best positions possible and to move forward in insuring NARF's success. NARF's Priorities One of the initial responsibilities of NARF's first Board of Directors was to develop priorities that would guide the Native American Rights Fund in its mission to preserve and enforce the legal rights of Native Americans. That Board developed five priorities that continue to lead NARF today: • Preservation of tribal existence • Protection of tribal natural resources • Promotion of Native American human rights • Accountability of governments to Native Americans • Development of Indian law and educating the public about Indian rights, laws, and issues
  • 6. Nat ive Ame rican Right s Fund As my term on the Native American Rights Fund (NARF) Board of Directors comes to an end in 2014, I would Like to call attention to a startling shift in funding at NARF NARF was founded in 1970 through a grant from the Ford Foundation, and has relied heavily on institutional funding throughout its history. At the NARF Board meeting this past November the Development Director reported that gifts from tribes now comprised the single largest source of NARF funding. The shift is clear. A recent study by Native Americans in Philanthropy (NAP) bears this out: over the last decade, funding for lnc:lian Country from mainstream foundations has declined by 40%. This has affected NARF too, but more than 40 tribes have stepped up to fill NARF's gap in foundation funding. It is gratifying to receive support from the constituency we serve! At that same Board meeting, it was aJso reported that during 2013, NARF had 92 active cases, special projects, and other activities CTndian Child Welfare, Sacred Sites, Climate Change, Education, Water Rights, Trust Responsibility, and Federal Recognition - to name a few} that consume time, energy, and money. While it is very good that we could dedicate st.aff to represent 92 specific needs, there were many additional requests for l.egal assis­ tance that had to be turned down due to the lack of finan­ cial resources to acquire the legal st.aft' necessary to take on the additional work load. The need for NARF to serve those who are unable to afford legal counsel has never been greater. It is very clear that at every tum, there are constant attempts to erode lndfan country's determination to self-govern and manage its affairs. It is also apparent that the United States Supreme Court continues to allow politics to cloud itsjudicial deci­ sion making. In concert with the National Congress of American Indians, NARF continues to monitor cases and decisions ofthis H.igh Court. The reports are not good, and show no signs of positive change. One strategy to diminish harmful judicial decisions is to settle those cases out of court. NARF has been very effective in assisting with negotiated settlements in many instances and will continue this strategy, especiaJly in light of this Court. To that end, we need your helpl On behalf of the Board, I respectfully request that all of Indian Country contribute financially, and at levels that you choose. That said, I am pleased and proud to say that each of the NARF Board of Director members have made their personaJ financial contribution in 2013. I thank all who have contributed to NARF in the past and encourage you to continue giving in the future. For those who haven't thought about giving, please do. Jerry Danforth Chairman, Board of Directors Annual Report 2013
  • 7. Nat ive Ame rican Right s Fund 2013 marked the 43rd year that the Native American Rights Fund has been providing legal advice and assistance to Indian tribes, organizations and individuaJs in cases of major national significance. Our legaJ representation once again resulted in several important victories and accomplish­ ments for Indian country during the year. Diane ]. Humetewa, an enrolled member of the Hopi Tribe, was nominated by President Barak Obama to serve as a federal judge in the U.S. District Court for the District of Ariwna. The Native American Rights Fund worked with several Native organizations as part of the Judicial Selection Project to urge the nomination of Ms. Humetewa, a well­ qualified Native American attorney, for the position. If con­ firmed by the Senate, Ms. Humetewa would be the only Native American serving as a judge in the federal judicial system. On behalf of the Eastern Shoshone Tribe, the Native American Rights Fund was successful in securing approval from the EnvironmentaJ Protection Agency (EPA) of the application of the Eastern Shoshone Tribe and the Northern Arapaho Tribe of the Wind River Reservation in Wyoming to be treated in the same manner as a state in the adminis­ tration of certain Clean Air Act programs. T he decision of the EPA to approve the application also determined that the boundaries of the Wind River Reservation were not altered by the Surplus Land Act of March 3, 1905. The decision ls being appealed by the State of Wyoming. In Al<iachak Native Community v. Department ofInterior, the Native American Rights Fund obtained a favorable federal court decision on behalf of several Alaska tribes invalidating the federal regulation that barred the Secretary of the Interior from acquiring land in trust in Alaska other than for the MetJakatla Indian Community or its members. T he decision is being appeaJed by the State of Alaska. Represented by the Native American Rights Fund, the Klamath Tribes had their time immemoriaJ priority date water rights to support the Tribes' treaty hunting, fishing, trapping and gathering rights confirmed in the Final Order of Determination issued by the Oregon Water Resources Annual Report 2013 Department {OWRD) in the Klamath Basin Adjudication {KBA). For the first time ever, the Tribes are able to enforce their water rights. OWRD's determination of the Tribes' rights, as weU as all other water rights asserted in the KBA, are now subject to judicial review in an Oregon state court. Settlement negotiations are also in process that may finally settle the Tribes' water rights claims. In Katiefohn v. Norton, the Native American Rights Fund represents an Alaska Native asserting priority subsistence flshing and hunting rights provided by the Alaska National lntecest Lands Conservation Act. We prevajled in a decision by the Ninth Circuit Court of Appeals rejecting the State of Alaska's challenge to the plan ofthe Secretary of the Interior and the Secretary of Agriculture to implement the Act. The Court held that it was reasonable for the Secretaries
  • 8. Nat ive Ame rican Right s Fund to decide that the pubUc lands subject to the Act's rural subsistence priority included the waters within and adjacent to federal reservations in Alaska. The State of Alaska is seeking review of the case by the U.S. Supreme Court. In Native Village ofTununak v. State ofAlaska, the Alaska Supreme Court issued an important ruling holding that the Indian Child Welfare Act (ICWA) implicitly mandates that good cause to deviate from ICWA's adoptive placement preferences which favor Natives be proved by clear and convincing evidence, not the weaker preponderance of the evidence standard. Alaska had been the only state where courts had applied the preponderance of the evidence burden of proof to findings of good cause to deviate from ICWA's adoption pref:erences. The Native American Rights authored an amicus brief in the case on behalf of the Native Village of Kotzebue. The Indian Tribal Justice and Legal Assistance Act author­ izes the Department of Justice to provide supplemental funding to Indian legal services programs for the representa- tion of Indian people and tribes which fall below federal poverty guideBnes. On behalf of the 25 Indian legal services programs that the Indian Law Support Center at the Natrive American Rights Fund works with, we appHed for and received civil and criminal grants of $715,000 and $515.000 respectively for civil and criminal assistance in tribal courts. The grants were distributed to the Indian legal services programs. These 2013 victories and accomplishments for Indian country would not have been possible without the generosity of our many contributors across the United States. We thank you for your assistance and encourage you to continue your support of our Indian legal advocacy efforts in 2014. John E. Echohawk Executive Director Annual Report 2013
  • 9. Nat ive Ame rican Right s Fund 11111111> 111= 1>1111:1:·r1111s The Native American Rights Fund has a governing board composed of Native American leaders from across the country - wise and distinguished people who are respected by Native Americans nationwide. Individual Board mem­ bers are chosen based on their involvement and knowledge ofIndian issues and affairs, as well as their tribal affiliation, to ensure a comprehensive geographical representation. The NARF Board of Directors, whose members serve a maximum of six years, provide NARF with leadership and credibility, and the vision of its members is essential to NARF's effectiveness in representing its Native American clients. Annual Report 2013 NARF's Board of Directors: First row (left to right) Tex Hall, Board Treasurer (Three Affiliated Tribes); Gerald Danforth, Board Chairman (Oneida Indian Nation of Wisconsin); Natasha V. Singh, Board Vice ­ Chair (Native Village ofStevens); Buford L. Rolin (Poarch Band of Creek Indians; Second Row {left to right} Peter Pino, (Zia Pueblo); Moses Haia, Board Executive Committee, {Native Hawaiian); Julie Roberts-Hyslop, {Native ViUage of Tanana); and Virginia Cross (Muckleshoot IndianTribe). (Not Pictured) Mark Macarro {Pechanga Band of Luiseno Indians); Barbara Smith (Chickasaw Nation); Gary Hayes (Ute Mountain Ute Tribe); Stephen Lewis, Board Executive Committee, (Gila River Indian Community); and Larry Olinger, {Agua CaUente Band of Cahuilla Indians}
  • 10. Nat ive American Right s Fund The National Support Committee assists NARF with its fund raising and pubUc relations efforts nationwide. Some of the inc:Uviduals on the Committee are prominent in the field of business, entertainment and the arts. Others are known advocates for the rights of the underserved. All of the 31 volunteers on the Committee are committed to upholding the rights of Native Americans. Randy Bardwell, Pechanga Band of luiseiio Misrion Indians Jaime Barrientez, Grande Traverse Band ofOttawa and Chippewa Indians John Bevan Wallace Coffey, Comanche Ada Deer, Menominee Harvey A. Dennenberg Lucille A. Echohawk, Pawnee Jane Fonda James Garner Eric Ginsburg IN �VI1:��IIIII' Jeff Ginsburg Rodney Grant, Omaha Chris E. McNeil, Jr., Tli111Jit-Nisga'a Billy Mills, Og!ala LakotE Amado Pena, Jr., Yaqui/Chicano Wayne Ross Nancy Starling-Ross Mark Rudick Pam Rudick Ernie Stevens, Jr., Wisconsin Oneida Andrew Teller, .bieta Puebl o Verna Teller, lsJeta Pueblo On May 31, 2013, Ahtna elder, matriarch and icon Katie John passed away at the age of 97. Katie John was a long-time cUent of the Native American Rights Fund who represente d her in federal court litigation for nearly thirty years. The Katie John litigation, more than any other subsistence case exemplifies the contentious battle waged between federal, tribal and state interests overjuris­ diction of Alaska Native subsistence fishing rights. Richard Trudell, Santee Sioux Rebecca Tsosie, Pasqua Yaqui Tzo-Nah, ShoshoneBannock Aine Ungar Rt. Rev. William C. Wantland, Seminole W. Richard West, Southern Cheyenne Randy Willis, Oglala Lakota Teresa Willis, Umati.Da Mary Wynne, Rosebud Sioux Annual Report 2013
  • 11. Nat ive Ame rican Right s Fund ·r1t1: 1>111:s1:11fj·1·111N 111= ·r11111jI. 1:x1s·1·1:N1:1: H'P - r! 0 J "The first peace, which is the most important, is that which comes within the souls of people when they realize their relationship, their oneness, with the universe and all its powers, and when they realize that at the center of the universe dwells Wakan-Taka {the Great Spirit}, and that this center is reaUy everywhere, it is within each ofus. This is the real peace, and the others are but reflections ofthis. The second peace is that which is made between two individuals; and the third is that which is made between two nations. But above aU you should understand that there can never be peace between nations until there is known that true peace, which, as Ihave often said, is within the souls ofmen. " - Black Elk, Oglala Sioux & Spiritual Leader Annual Report 2013
  • 12. Nat ive American Right s Fund Under the priority of the preservation of tribal existence, NARF works to construct the foundations that are necessary to empower tribes so that they can continue to live accord­ ing to their Native traditions, to enforce their treaty rights, to insure their independence on reservations and to protect their sovereignty. Specifically, NARF's legal representation centers on sovereignty and jurisdiction issues and also on federal recog­ nition and restoration of tribal status. Thus, the focus of NARF's work involves issues relating to the preservation and enforcement of the status of tribes as sovereign govern­ ments. Tribal governments possess the power to regulate the internal affairs of their members as well as other activities within their reservations. Jurisdktional conflicts often arise with states, the federal government and others over tribal sovereignty. Tribal Sovereignty The focus of NARF's work under this priority is the protection of the status of tribes as sovereign, self-governing entities. The United States Constitution recognizes that Indian tribes are independent governmental entities with inherent authority over their members and territory. In treaties with the United States, Indian tribes ceded millions of acres of land in exchange for the guarantee that the federal government would protect the tribes' right to self­ govemment. From the early 1800s on, the Supreme Court has repeatedly affirmed the fundamental principle that tribes retain inherent sovereignty over their members and their territory. Beginning with the decision in Oliphant v. Suquamish Indian Tribe in 1978 and with increasing frequency in recent years, the Supreme Court has steadily chipped away at this fundamental principle, both by restricting tribal juris­ diction and by extending statejurisdiction. These decisions by the Supreme Court have made this priority more relevant than ever and have led to a Tribal Sovereignty Protection Initiative in partnership with the National Congress of American Indians (NCAI) and tribes nationwide to restore the traditional principles of inherent tribal sovereignty where those have been undermined and to safeguard the core of sovereignty that remains. This Initiative consists of three components. The first component is theTribal Supreme Court Project, the focus of which is to monitor cases potentially headed to the Supreme Court and those which actually are accepted for review. When cases are accepted, the Tribal Supreme Court Project helps to ensure that the attorneys representing the Indian interests have all the support they need and to coordinate the filing of a limited number of strategic amicus briefs. A second component of the Initiative is to weigh in on judicial nominations at the lower court and the Supreme Court levels. Finally, there is a legislative component to fight bills that are against tribal interests and to affirmatively push legi slation to overturn adverse Supreme Court declsions. The Tribal Supreme Court Project is ajoint project staffed by the Native American Rights Fund and the National Congress of American Indians. The Tribal Supreme Court Project is based on the principle that a coordinated and structured approach to Supreme Court advocacy is neces­ sary to protect tribal sovereignty - the ability of Indian tribes to function as sovereign governments- to make their own laws and be ruled by them. Early on, the Tribal Supreme Court Project recognized the U.S. Supreme Court as a highly specialized institution, with a unique set of pro­ cedures that include complete discretion on whether it will hear a case or not, with a much keener focus on policy con­ siderations than other federal courts. The Tribal Supreme Court Project established a large network of attorneys who specialize in practice before the Supreme Court along with attorneys and law professors who specialize in federal Indian law. The Tribal Supreme Court Project operates under the theory that if Indian tribes take a strong, consistent, coordi­ nated approach before the Supreme Court, they will be able to reverse, or at least reduce, the on-going erosion of tri!bal sovereignty by Justices who appear to lack an understanding of the foundational principles underlying federal Indian law and who are unfamiUar with the practical challenges facing tribal governments. In 2013, the primary focus for the Tribal Supreme Court Project has been fixed on Michigan v. Bay Mill�a case granted review by the Court even though the United States had filed a brief recommending that cert be denied. Although this litigation should be about the merits of Bay Mills' claims under the Michigan Indian Land Claims Settlement Act to conduct gaming on lands acquired with settlement funds-it is not. In its current posture before the Court, the State of Michigan used this case to mount a full frontal attack on tribal sovereign immunity and the Annual Report 2013
  • 13. Nat ive Ame rican Right s Fund authority of states to regulate "gaming activity" under the Indian Gaming Regulatory Act {IGRA). The State of Alabama, joined by fifteen other states, and the State of Oklahoma filed amicus briefs in support of Michigan. On the merits, Michigan asked the Court to examine ·'IGRA as a whole" to 6nd Congressional intent to waive tribal sovereign Immunity or, in the alternative, to overrule Santa Ciara Pueblo to allow the lower courts to apply a "le� strict standard" when considering whether legislation such as IGRA abrogates tribal sovereign immunity. If the statu­ tory arguments are not successful, the state is asking the Court to recognize that tribal sovereign immunity "is a federal common law doctrine" created by this Court and subject to adjustment by this Court. Thus, according to Michigan, the Court should narrowly read Kiowa as a ·con­ tract-based ruling" and (at the extreme) hold that a tribe's immunity is limited to its on-reservation governmental functions. With the doctrine of tribal sovereign immunity and the authority of states under IGRA on the table, this case has become high-stakes Litigation for Indian tribes across the country. Oral argument was held in December 2013. Generally, the Court appeared to accept the fact that Michigan or the federal government could resolve the matter by initiating criminal proceedings against the individuals operating or working at the casino, but questioned their efficacy. Bay Mills conceded (as it did in regard to arbitra­ tion) that both the Ex Pa.rte Youngand criminal prosecution options were available remedies that could be pursued by the State. Bay Mills reminded the Court that the casino is currently closed and that the parties are currently in the process of renegotiating their state-tribal gaming compact where the State can bargain for additional remedies. However, several Justices appeared to view tribal sovereign immunity as a hurdle to any potential remedy. Throughout the argument, various Justices noted several ways by which the Court could modify the doctrine of tribal sovereign immunity. Justice Kennedy, observing the unusual procedural posture of the case, propoSl!d a ruHng thatwould limit Kiowa so as to make the tribal sovereign immunity defense unavailable in the context of Indian gaming. Other Justices questioned whether Indian tribes should enjoy greater sovereign immunity than States or foreign nations. Justice Ginsburg proposed making a distinction between Annual Report 2013 governmental and commercial (off-reservation) activity, whereby the latter would not be covered by tribal sovereign immunity. Michigan argued that the Court could either modify /(jowa on this governmental-versus-commercial distinction, or simply distinguish Kiowa on the basis that States are different-States are constitutional sovereigns entitled to be treated differently than ordinary business plaintiffs. Finally, the Court discussed whether it should modify the doctrine of tribal sovereign immunity, or whether, in Line with Kiowa, once again defer any changes to Congress. A majority of the Justices, including Chief Justice Roberts, expressed a belief in the inherent power of the Court to modify tribal sovereign immunity despite its holding in Kiowa. A decision is expected in March/April 2014. In July 2013, in coordination with the National Indian Child Welfare Association (NICWA) and NCAI, NARF flied a civil rights lawsuit on behalf of Veronica Brown (Baby Veronica) in the U.S. Federal District Court for the District of South Carolina. Two years ago, the South Carolina Family Court held best interest hearings and deter­ mined that it was in Veronica's best interest to be with her father, Dusten Brown, a member of the Cherokee Nation. At that time, the state court determined that hewasa fit and loving parent, and as a result, the South Carolina Supreme Court transferred custody to Mr. Brown. However, in June 2013, the U.S. Supreme Court issued a 5-4 decision in Adoptive Couple v. Baby Gi.rl, reversing and remanding the case back to the South Carolina courts based on its determi­ nation that the provisions of ICWA do not to apply to this case. In July 2013, the South Carolina Supreme Court issued a controversial order to the state's family court calling for an expedited transfer of custody to the South Carolina­ based adoptive couple without a hearing of best interest for Veronica. It is standard procedure that adoption proceedings reqwre a hearing to determine the best interest of the child in advance of any transfer of custody proceeding, an essen­ tial step the South Carolina Supreme Court failed to take, thus denying Veronica the right to have her current best interests considered. The federal dfatrict court denied without prejudice NARF's motion for a temporary restraining order against the South Carolina Family Court, and Judge Martin issued an order transferring custody of Veronica to the Adoptive
  • 14. Nat ive American Right s Fund Annual Report 2013
  • 15. Nat ive Ame rican Right s Fund Couple. As pre-trial matters moved forward in our case, NARF closely monitored developments in the South CaroUna courts (e.g. criminal charges and extradition requests against Dusten Brown), and the subsequent pro­ ceedings in the Oklahoma courts and the Cherokee Nation courts. In the end, the Oklahoma courts domesticated Judge Martin's order, and in September 2013, Veronica was transferred to the custody of Adoptive Couple. Although appeals through the Oklahoma courts remained, in October 2013, Dusten Brown announced his decision to end the custody battle. In conformity with the father's decision and with the best interests of Veronica in light of these develop­ ments, NARF filed a voluntary dismissal of the federal civil rights complaint. This matter is now closed. The research objective of the Judicial Selection Project evaluates the records of federal court judicial nominees on their knowledge of Native American issues. The Project's analysis and conclusions are shared with tribal leaders and federal decision-makers in relation to their decision whether to support or oppose a particularjudicial nomination. Given the number offederal court cases involving Native American issues, the Project works with the U.S. Senate Judiciary Committee to ensure that all nominees are asked about their experience with Indian tribes and their understanding of federal Indian law during confirmation proceedings. As part of its outreach to Indian country, the Obama Administration continues to seek the names of quallfied Native American attorneys, tribal court judges and state court judg·es who are interested in being considered for vacancies on the federal bench. In September 2013, Annual Report 2013 President Obama announced his nomination of Diane ]. Humetewa, an enrolled member of the Hopi Tribe, to the U.S. District Court for the District of Arizona. Ms. Humetewa is a welJ-qualified Native American nominee who served as the U.S. Attorney for the District of Arizona from 2007-2009. Prior to her appointment as U.S. Attorney, she served as Counsel to the Deputy Attorney General and as Senior Litigation Counsel within the U.S. Attorney's Office. From 1993 to 1996, she was Deputy Counsel for the United States Senate Committee 0111 Indian Affairs for the Chairman, Senator John McCain. NARF was also invited to the White House for the President's announcement of thre.e nominations to fill vacancies on the U.S. Court of Appeals for the D.C. Circuit-sometimes referred to asthe second most powerful court in the United States. Through the work of the Tribal Supreme Court Project, NARF has worked closely with one ofthe nominees, Patricia Millett, in her capacity as a partner, head of the Supreme Court Practice, and co-leader of the National Appellate Practice at Akin Gump Strauss Hauer & Feld , LLP NARF submitted a letter of support on her behalf to the Senate Judiciary Committee for her confirma­ tion. and in December 2013. the U.S. Senate confirmed Ms. Millett as ajudge on the D.C. Circuit. Another part of NARF's work under this priority is the environmental law and policy initiative. NARF has played a key role in the implementation of federal environmental law and policy that recognizes tribal governments as the pri­ mary regulators and enforcers of the federal environmental laws on Indian lands. Afterseveral years of fruitful partner­ ship, NARF has recently begun representing NCAI on climate change matt,ers. Climate change is one of the most challenging issues facing the world today. Its effects on indigenous peoples throughout the world are acute and will only get worse. The effects are especially pronounced in Alaska where as many as 184 Alaska Native villages are threatened with removal. NARF. in addition to working with some of its present clients on this issue, previously worked with National Tribal Environmental Council (NTEC) on comprehensive foderal climate change legisla­ tion. NTEC, NARF, NCAI and the National Wildlife Federation worked together and created a set of Tribal Principles and worked with national environmental organi­ zations on detailed legislative proposals. Unfortunately, these efforts stalled in Congress.
  • 16. Nat ive Ame rican Right s Fund Federal Recognition ofTribal Status The second category of NARF's work under this priority is federal recognition of tribal status. NARF currently rep­ resents Indian communities who have survived intact as identifiable Indian tribes but who are not federally recognized. Tribal existence does not depend on federal recognition, but recognition is necessary for a government­ to-government relationship and the receipt of many federal services. In 1997, the Branch of Acknowledgment and Research (BAR) placed tlhe Little Shell Tribe of Chippewa Indians of Montana federal recognition petition on active review status. In 2000 the Assistant Secretary for Indian Affairs (AS-IA) pubUshed a PreUminary Determination in favor of recogni­ tion. A technical assistance meetingwas held with the Office of Federal Acknowledgment (OFA) to outUne a program of action to strengthen the petition prior to the fmal determi­ nation. Substantial work was done to strengthen the Tribe's petition and the final submissions were made in 2005. Active consideration of the Tribe's new material began in August 2007, and OFA conducted a three week site visit in October 2007. OFA had previously indicated it would reach a final determination by the end of calendar 2007. This deadline was not met; the date was moved to the end of July 2008. Before that date arrived, the AS-IA granted OFA new deadUnes of January 2009 and then July 2 009. OFA granted itselfan extension oftime to September 2009, and then a further extension to October 2009. In October 2009, the Acting AS-IA issued a Final Determination against recognition of the Tribe, overrullng the decision in the Preliminary Determination. The stated rationale for Final Determination was the unwillingness to go along with the "departures from precedent" which the previous AS-IA found to be justified by historical circumstances. In February 2010, the Tribe filed a Request for Reconsideration with the Interior Board of Indian Appeals (IBIA). The IBIA allowed interested parties, if any, to file opposition briefs by July 2010. No one filed an opposition brief. In June 2013, the IBIA affirmed the negative Final DetermJnation. However, it referred five legal questions to the Secretary of the Interior (SOI). In an important devel­ opment after the IBIA decision, and before our July 2013 comments, inJune 2013 the AS-IA madean announcement of "Consideration of Revision to Acknowledgment Regulations" along with preliminary discussion draft regula­ tions which propose major changes in the regulations. In light ofthis announcement, we urged the SOI to request the AS-IA to suspend consideration of the Final Determination pending completion of the revision process as the proposed amendments are very significant. We submitted extensive comments on the draft regulations in September 2013. In September 2013, the SOI ruled on the legal issues which we had raised in the IBIA and which had been referred to the SOI. The SOI referred all five questions back to the AS-IA. stating, "The allegations in these grounds suggest that further review by your office would ensure that the Department's final decision in this matter benefits from a full analysis and comports with notions of a full and fair evaluation of the Little Shell petition." The SOI requested the AS-IA to consider this request as well. Pending is the Tribe's request to place their petition on suspension pending completion of the process to amend the acknowledgment regulations. The Tribe continues to pursue legislative recog­ nition After years of preparing the necessary historical, legal, genealogical and anthropological evidence to fully docu­ ment 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 (OFA) in October 2010. The Tribe received OFA's letter of Technical Assistance (TA) in April 2011 and a response to the TA letter was filed in July 2012. In late July 2012, OFA informed the Tribe that its petitionwas moved to the top of the "Ready" List, and active consideration commenced August 2012. The Pamunkey Indian Tribe is the only tribe located in Virginia to have filed a fully documented recognition peti­ tion. EstabUshed no later than 1646, the Tribe's Reservation is located next to the Pamunkey River, and adjacent to King William County. The Rieservation comprises approximately 1.200 acres and is the oldest inhabited Indian reservation in America. NARF has represented the Tribe in this effort since 1988 and now is co-counsel on this matter. Annual Report 2013
  • 17. Nat ive Ame rican Right s Fund ''American Indians are this country's firstscientists, a fact thatis often overlooked bycontemporaryAmerica ingeneraland the scientificcommunityinparticular. As Indigenous peoples walked through history on their respective cultural roads of life, they formulated sophisticated bodies of traditional knowledge, some points ofwhich converge with mainstream science. They were intimatelyfamDiar with their environment and knew where they stood in the universe. In Indigenous thought, life is viewed holistically and for them sdence is but a strand that is interwoven into a vast, delicately balanced ecological system in which everyone and everything is connected and interdependent. For them, science did not stand separate from life. " - Henrietta Mann, Cheyenne Annual Report 2013
  • 18. Nat ive American Right s Fund Throughout the process of European conquest and colo­ nization of North America, Indian tribes experienced a steady diminishment oftheir land base to a mere 2.3 percent of its original size. Currently, there are approximately 55 millJon acres of Indian-controlled land in the continentaJ United States and about 44 mil lion acres of Native-owned land in Alaska. An adequate land base and control over natural resources are central components of economic self­ sufficiency and self-determination, and as such, are vital to the very existence of tribes. Thus, much of NARF's work involves the protection of tribal natural resources. Protection of Indian Lands Without a sufficient land base, tribal existence is difficult to maintain. Thus NARF helps tribes establish ownership and control over lands which are rightfully theirs. NARF has been retained by the Eastern Shoshone Tribe (EST) of the Wind River Indian Reservation to analyze the Surplus Land Act of March 3, 1905, and other legislation and cases, to determine their implications for the bound­ aries of the Reservation. The EST and Northern Arapaho 'Ifibe cooperated in an appUcation to the U.S. Environmental Protection Agency (US EPA) for delegation of "treatment in the same manner as a state" (TAS) in the administration of certain Clean Air Act programs. A decision supporting delegation will require that US EPA determine the location of the boundaries of the Reservation. The TAS Application has been published by US EPA and they have received comments. The Tribes filed their Response to the comments in March 2010. US EPA requested a written opinion from the Department of the Interior on the boundaries which has been completed and forwarded to the US EPA. US EPA issued its Approval of Application Submitted by Eastern Shoshone Tribe and Northern Arapaho Tribe for Treatment in a Similar Manner as a State Under the Clean Air Act in December 2013. That decision determined that the boundaries of the Wind River Reservation were not altered by the Surplus Land Act of March 3, 1905. Wyoming has indicated that it will appeal EPA's decision if not altered. NARF represents the Hualapai lndfan Tribe of Arizona in preparing and submitting four applications for the transfer of 7 parcels ofland owned in fee by the Tribe into trust status. The Tribe is located on the south rim of the Grand Canyon in Arizona, and claims a boundary that runs to the center of the Colorado River. The applications have been submitted to the BIA and await its response prior to being passed to the U.S. Interior Department's SoUcitor for a PreUminary Title Opinion on the parcels. The Regional Solicitor in Phoenix recently issued a Preliminary Title Opinion (PTO) on one of the Applications. We are working with a Title Company to cure any concerns identified in the PTO. In addition, NARF assisted the Tribe with the transfer of lands gifted to the Tribe at Challa Canyon Ranch. Because there were title concerns. NARF prepared a trust which the Tribe adopted and into which the lands were transferred. In addition, we are working on having these lands taken into trust, but the United States will not take the lands into trust until title to the Ranch has been cleared of any claim arising from questions related to transfer oftitle to the Tribe from a private trust. NARF, working with a local firm, successfully accomplished a series of transfers oftitJe to the lands to clear title to the Ranch. The Petition for transfer of these lands into trust has been filed with the BIA. In Akiachak Native Community, et al. v. Department of lnterio1; et al, the Akiachak Native Community, et al., rep­ resented by NARF. brought sujt in the U.S. District Court for the District of Columbia seeking judicial review of 25 C.FR. Part 151 as it pertains to federally-recognized Tribes in Alaska. This federal regulation governs the procedures used by Indian Tribes and individuals when requesting tl1e Secretary of the Interior to acquire title to land in trust on their behalf. The regulation bars the acquisition of land in trust in Alaska other than for the MetlakatJa Indian Community or its members. After full briefing, but nearly three years of no action by the federal court, the case was transferred to Judge Rudolph Contreras. Judge Contreras issued an Order in April 2012 requesting that the federal government respond to six additional questions in a supple­ mental brief. The governmentfiled itssupplemental brief in July 2012 and Plaintiff Akiachak Native Community filed its reply brief in August 2012. In March 2013, an Order was issued by Judge Contreras, granting Plaintiffs complete relief on all of their claims - a major victory for Alaska Tribes. Briefing on remedies was concluded and a Memorandum Order was entered in Annual Report 2013
  • 19. Nat ive Ame rican Right s Fund September 2013 denying the State of Alaska's motion for reconsideration, and severing and vacating Part 1 of 25 C.FR. 1 5 1 . The State is expected to appeal. Water Rights The culture and way of life of many indigenous peoples are inextricably tied to their aboriginal habitat. For those tribes that still maintain traditional ties to the natural world, suitable habitat is required in order to exercise their treaty­ protected hunting, fishing, gathering and trapping rights and to sustain their relationships with the animals, plants and fish that comprise their aboriginal habitats. Establishing tribal rights to the use of water Jn the arid wec;tern United States continues to be a major NARF priority. Tlhe goal ofNARF's Indian water rights work is to secure allocations of water for present and future needs for specific Indian tribes represented by NARF and other west­ ern tribes generally. Under the precedent established by the Supreme Court in 1908 in Winten v. UnitedStaterand con­ ftrmed in 1 963 in Arizona v. California, Indian tribes are entitled under federal law to sufficient water for present and future needs, with a priority date at least as early as the establishment of their reservations. These tribal reserved water rights are superior to all state-recognized water rights created after the tribal priority date. Such a date will in most cases give tribes valuable senior water rights in the water-short west. Unfortunately, many tribes have not uti­ lized their reserved water rights and most of these rights are unadjudicated or unquantified. The major need in each case is to define or quantify the amount of water to which each tribe is entitled through litigation or out-of-court settlement negotiations. Tribes are generally able to claim water for any purpose which enables the Tribe's reservation to serve as a permanent homeland. NARF, together with co-counsel, represents the Agua Caliente Band of CahuilJa Indians in a lawsuit filed in May 2013 in the U.S. District Court for the Central District of California, asking the Court to declare the existence of the Tribe's water rights as the senior rights in the Coachella VaJley under federal law, to quantify these rights, and to pre­ vent CoachelJa Valley Water District and Desert Water Agency from further injuring the Tribe, its members and rec;­ idents in surrounding communities throughout the Valley by impairing the quantity and quality of water in the aquifer. Annual Report 2013 The water districts import and then fail to adequately treat substantially lower quality water from the Colorado River and inject that water into the aquifer. The recharge water, which contains higher total dissolved solids, nitrates, pesticides, and other contaminants, is re-injected into the Coachella ValJey aquifer at a facility close to the Tribe's lands. Thus, the groundwater in the Western Coachella Valley, including the water below the Agua Caliente Reservation, which includes the cities of PaJm Springs, Cathedral City, Rancho Mirage, and Thousand Palms, is being polluted at a faster rate than the aquifer down-valley. The judge in the federal district court in Riverside, CA, has set the initial scheduling conference between the parties for January 2014. The structure for the Litigation wilJ be discussed with thejudge at that time, and a scheduling order entered by the court. The Klamath Tribes' time immemorial priority date water rights to support the Tribes' treaty hunting, fishing, trap­ ping, and gathering rights were confirmed in the Final Order of Determination (FOD) issued by the Oregon Water Resources Department (OWRD) in the Klamath Basin Adjudication (KBA) in March 2013. For the first time ever, the Tribes were able to enforce their water rights during the 2013 irrigation season. OWRD's determination of the Tribes' rights, as well as all other water rights asserted in the KEA. is now subject tojudicial review in the KJamath County Circuit Court in Klamath Falls, Oregon. In Summer and Fall 2013, the Tribes successfully defended against the Upper Klamath Basin irrigators' attempts to halt enforcement of the Tribes' water rights. In the next step of the judicial review phase, parties who dispute OWRD's determinations in the FOD have the opportunity to file exceptions to the FOD with the Klamath County Circuit Court. Under the current schedule exceptions must be Bled with the Court by March 3, 2014, but the State of Oregon has Bled a motion with the Court requesting an extension of that deadline to May 2014. Following the widespread curtailment of water use by Upper Basin irrigators and other junior water users during the 2013 irrigation season, Oregon Senator Ron Wyden ini­ tiated aseries ofmeetingsamong the Klamath Tribes, Upper Basin lrrigators, and federal and state representatives to
  • 20. Nat ive Ame rican Right s Fund explore settlement opportuni­ ties, which resulted in an Agreement in Principle (AJP) .in December 2013. In the AIP the parties agree to continue good-faith negotiations with the goal of reaching a Final Agreement consistent with the AIP principles in early 2014. The four stated goals ofthe AlP are: to support the economic interests of the Klamath Tribes; to provide a stable, sustainable basis for the ,continuation of agriculture in the Upper Klamath Basin; to manage and restore riparian corridors along streams that flow into Upper Klamath Lake; and, to resolve water rights clajms and contests in the Klamath Basin Adjudication. Negotiations directed toward developing a Final Agreement are ongoing. After almost 30 years of advocacy, the Tule River Indian Tribe, represented by NARF. successfully settled its water rights in November 2007 by signing a Settlement Agreement with water users on the South Fork Tule River of CaLifomia. The Settlement Agreement secures a domestic, municipal, industrial, and commerciaJ water supply for the Tribe. The Tribe now seeks federal legislation to ratify the Settlement Agreement and authorize appropriations to develop the water rights through the creation ofwater infra­ structure and reservoirs on theTule Reservation. Bills intro­ duced in the U.S. House and Senate in 2007, 2008, and 2009 ilid not pass. With the present Congress, we are once again engaged in strategy meetings with the CaLifornia Congressional delegation regariling the possible introduc­ tion of a water settlement bill in calendar year 2014. Additionally, we are continuing work with the federal Bureau of Reclamation on necessary studies for the feasibiLity and design of the Tribe's water storage project. In June 2006, the Kickapoo Tribe in Kansas, represented by NARF. filed a federal court Lawsuit in an effort to enforce express promises made to the Tribe to build a Reservoir }ohn &hohawk {center} with former NA.RPattorneys and formerstaff. Project. The Nemaha Brown Watershed Joint Board # 7, the Natural Resources Conservation Service of the U.S. Department of Agriculture, and the State of Kansas made these promises to theTribe over a decade ago. In the inter­ vening years these parties have been actively developing the waterresources of the watershed, resulting in the near deple­ tion of theTribe'ssenior federal water rights in the drainage. According to the Envfronrnental Protection Agency, the water supply for the Reservation is in violation of the Safe Drinking Water Act of 1974. The Kickapoo people are unable to safely drink, bathe or cook with tap water. There is not enough water on the reservation to provide basic municipal services to the community and the Tr.ibe is not even able to provide local schools with reLiable, safe running water. The fire department cannot provide ade­ quate fire protection du1e to the water shortage. The pro­ posed Reservoir Project is the most cost effective and reliable means by which the Tribe can improve the water supply. Annual Report 2013
  • 21. Nat ive Ame rican Right s Fund The U.S., the State and the local watershed district alJ concede the existence of the Tribe's senior Indian reserved water rights; the real issue is the amount of water needed to satisfy the Tribe's rights, and the source or sources of that water. The Tribe and the US are also discussing funding to quantify the Tribe's water dghts. In March 201 1 , the watershed district rejected a Condemnation Agreement that the State and Tribe had approved. That agreement created the mechanism for condemning the property for the water storage project. NARF then succeeded in restructuring the litigation to place an immediate focus on discovery against the watershed district and on getting the condemnation dispute resolved by the federal court. We also continue to investigate the possibility ofa comprehensive settlement ofthe water rights i�es in the case. Most recently, the federal court entered summary judg­ ment in favor of the watershed district on the question of whether a 1994 agreement obUgated the district to make its condemnation power available to aid the Ti-ibe in acqufring the land for the water storage project area. TheTribe is now evaluating its options, including discussions with the Interior Department and the State of Kansas to find an alternative means of securing the land rights forthe project. NARF prepared an analysis of the options the Bad River Band of Lake Superior Tribe of Indians has for protecting the quantity and quality of the waters of its Reservation. The Tribe's Reservation is located in the State of Wisconsin which uses a riparian system for allocation of the uses of the surface waters within the State. Of particular concern to the Tribe are recent amendments by the State lto remove or sig­ nificantly relax water related environmental protections contained in state Laws. These amendments were intended to facilitate the development and operation of a proposed taconite (low grade iron) mine on the headwaters of the rivers that feed the Bad River Reservation. NARF is work­ ing with the Tribe to request that the United States support the Tribe in the protection of the Tribe's treaty reserved water rights. NARF has represented the Nez Perce Tribe in Idaho in its water rights claims in the Snake River Basin Adjudication (SRBA) both litigation and settlement phases for over 16 Annual Report 2013 years. In 2001 Congress enacted and the President signed the Snake River Settlement Act. We continue to work with the Tribe, on a very limited basis, to secure final approval of the settlement by the state water court, and on the federal appropriations process. Additionally, we are representing the Tribe in the drafting and negotiations with the United States, the State and private water interests in the Final Unified Decree that wJll be the capstone document closing the SRBA. With the Court, and one ofthe special masters, we have worked through many drafts of the Final Unified Decree with an eye toward resolving all objections to the text. It is now anticipated that the Final Unified Decree wilJ be signed by thejudge in 2014. Protection of Hunting and Fishing Rights in Alaska Thesubsistenceway of life is essential for the physical and cultural survival of Alaska Natives. As important as Native hunting and fishing rights are to Alaska Natives' physical, economk, traditional and cultural existence, the State of Alaska has been and continues to be reluctant to recognize the importance of the subsistence way of life. In State v. Norton, the State ofAlaska flied a lawsuit in the U.S. District Court for the District of Columbia In 2005, challenging a federal agency final rule implementing the mandate in a prior Alaska Native subsistence case, john v. UnitedStates. The prior case, in which NARF rep­ resented Katie John, an Alaska Native, established that the United States must protect subsistence uses of fisheries in navigable waters where the United States possesses a reserved water right. In this new lawsuit, the State chal­ lenges the FederaJ agencies' implementation ofthe mandate by arguing that the rieservedwaters doctrine requires a quan­ tification of waters necessary to fulfill specific purposes. Katie John moved for limited intervention for purposes of filing a motion to dismiss for failure to join an indispen­ sable party. The United States' request to transfer the case to the U.S. District Court for the District of Alaska was granted. The case was then consolidated with John v. Norton. The issues: in the two cases were bifurcated for briefing with the State's claims addressed first. In 2007 the court upheld the agency's rule making process identifying navigable waters in Alaska that faU within federal jurisdic­ tion for purposes of federal subsistence priority. In Katiejohn v. Norton, Katie John, represented by NARF.
  • 22. Nat ive Ame rican Right s Fund filed a lawsuit in 2005 in the U.S. District Court for the District of Alaska challenging Federal Agencies' final rule implementing the prior Katie John man­ date as being too restrictive in its scope. Katie John alleged that the Federal agen­ cies should have included Alaska Native allotments as public lands and that the federal government's interest in water extends upstream and downstream from Conservation Units established under the Alaska National Interest Lands Conservation Act. The State of Alaska intervened and challenged the regulations as Ulegally extending federal jurisdiction to state waters. In 2009 the court upheld the agencies' !final rule as reasonable. While rejecting Katie John's claim that NARFhostedstudentsfrom Dartmouth. the agency had a duty to identify all ofits federally-reserved water rights in upstream and downstream waters, the court stated that the agency could do so at some future time if necessary to fulfill the purposes of the reserve. The case was appealed to the U.S. Court of Appeals for the Ninth Circuit where oral argument was held in July 2011. In July 2013, a panel of the Ninth Circuit Court of Appeals affirmed the district court's decisions upholding the 1999 Final Rules promulgated by the Secretary of the Interior and the Secretary ofAgriculture to implement part of the Alaska National Interest Lands Conservation Act concerning subsistence fishing and hunting rights. As threshold issues, the panel held that the Secretaries appropriately used notice-and-comment rulemaking, rather than adjudication, to identify whose waters are �public lands" for the purpose of determining the scope ofthe Act's rural subsistence policy; and that in construing the term "public lands," the Secretaries were entitled to "some defer­ ence." 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. The State filed a petition for U.S. Supreme Court review in November 2013. Appellees requested and were granted a 45 day extension in which to file their response until January 2014. The United States again requested a 30 day extension to and including February 2014. In Native ViUages of £yak, Tatitlek, Chenega, Nanwalek, and Port Graham v. Evans, NARF represents five Chugach villages that sued the Secretary of Commerce to estabLish aboriginal rights to their traditional use areas on the Outer Continental Shelf (OCS) of Alaska, in Cook Inlet and the Gulf of Alaska. In 2002 the federal district court ruled against the Chugach. NARF appealed to the U.S. Court of Appeals for the Ninth Circuit which in 2004 en bane vacat­ ed the district court's decision and remanded for determina­ tion of whether the Tribes can establish aboriginal rights to the areas. After denials of summaryjudgment motions on the issue, trial on whether these Tribes hold aboriginal rights to hunt and Eish in federal waters was held in August 2008. In August 2009 the court held that although the five Chugach Tribes had established that they had a "territory" and had proven they had used the waters in question, the Annual Report 2013
  • 23. Nat ive Ame rican Right s Fund Tribes could not hold aboriginal rights as a matter of law. The Chugach appealed to the Ninth Circuit en bane panel which retained jurisdiction over the case. Oral argument was heard by the en bane panel in September 201 1. In July 2012, a 6-5 majority of the Ninth Circuit en bane panel affirmed the district court's ruling that the Tribes failed to establish entitlement to non-exclusive aboriginal rights on the OCS. The majority concluded thattheVillages had satisfied the '"continuoususe and occupancy" requirement ofthe test for aboriginal rights, which is measured in accordance with the particular ways of life, customs, and habits ofthe tribe seek­ ing to estabUsh aboriginal rights. The majority determined that the district court's findings that the Villages' ancestors had hunted and fished on the OCS seasonally and while traveling to outer islands was consistent with their way of life as marine hunters and fisherman, and thus satisfied this requirement. However, the majority concluded that the Villages did not satisfy the "exclusivity� requirement of the test. Exclusivity is established when a tribe shows it used and occupied a territory to the exclusion of other Indian groups. The majority reje<:ted the argument that the lack of evidence that other groups hunted and fished in the claimed OCS territory established exclusivity. The majority interpreted the district court's finding that neighboring tribes had likely fished and hunted on the periphery of the claimed 0CS territory to constitute a finding that these other groups had likely fished and hunted within the claimed OCS territory. The majority also reUed on a state­ ment by the district court that the population ofthe ances­ tral villages was too low to have been able to exercise dominion and control over the claimed OCS area. Five judges signed on to a vigorous dissent which agreed with the majority that the Tribes had satisfied the continu­ ous use and occupancy requirement but strongly disagreed with the majority's conclusion that the exclusivity require­ ment was not satisfied. The dissent argued that exclusivity does not roquire the Tribes toshow that as a theorotical mat­ ter, they could have repelled intruders from the claimed OCS area, as suggested by the district court's population finding. Rather, in the absence ofevidence ofuse by others, case law requires only that the Villages show that they were Annual Report 2013 theonly group that used and occupied the area. The dissent engaged in a thorough and well-reasoned analysis of the district court's findings and the supporting evidence to con­ clude that tliis requirement had been satisfied with respect to at least some parts of the claimed OCS area. Thus, the dissentwould have reversed and remanded with instructions to the district court to find, under the proper legal test, precisely where within the claimed area the Tribes have aboriginal rights. NARF filed a petition for a writ of certiorari in the U.S. Supreme Court and cert was finally denied in October 2013, ending the case. The Bering Sea Elders Group is an alliance of thirty-nine Yup'ik and lnupiaq villages that seeks to protect the sensitive ecosystem of the Bering Sea, the subsistence lifestyle, and the sustainable communities that depend on it. NARF has designed a comprehensive plan to help this group ofAlaska Native villages in their efforts to protect the area and become more engaged in its management. Subsistence is the inherently sustainable Native philosophy of taking only what you need. There are often no roads and no stores in rural Alaska, and so no other group of people in the United States continues to be as intimately connected to the land and water and as dependent upon its vast natural resources as Alaska's indigenous peoples. NARF has been working with the Elders Group in their negotiations with the bottom trawl industry. These negoti­ ations have resulted in the creation of a Working Group which will study various issues including sea.floor habitat and subsistence uses of the area and make recommendations about changes that need to be made. The first Working Group meeting is currently being planned. Alaska's Bristol Bayregion is home the largest wild salmon runs in the world. It is also home to the Yup'ik, Dena'ina, and Alutiiq people who depend on the sustainable salmon runs for theirsubsistence. In April 2013, NARF assisted in the creation of the United Tribes of Bristol Bay (UTBB). UTBB is a consortium of federally recognized tribes in the region. It was formed in order for tribes to directly address regional large-scale mining proposals threatening salmon rearing streams-such as the proposed Pebble Mine, which would sit on the headwaters ofthe largestsalmon-producing
  • 24. Nat ive American Right s Fund river in Bristol Bay. UTBB possesses a unique power, sepa­ rate from any other grassroots organization in Bristol Bay: it ls a polJtical subdivision of the tribes, exercising delegated tribal governmental powers. As such, UTBB exists under tribal law and is organized as a Section7871 group-an IRS tax code provision granting tribes and their subdivisions treatment as states. Exercising its delegated governmental authority with NARF as legal counsel, UTBB has actively engaged the federal government in direct government-to­ government consultation on the proposed Pebble Mine development in Bristol Bay region, including a recent con­ sultation directly with Administrator Gina McCarthy of the U.S. Environmental Protection Agency (EPA). Climate Change Project After several years of fruitful partnership, NARF has recently begun representing NCAI on climate change mat­ ters. Climate change is one of the most challenging issues facing the world today. Its effects on indigenous peoples throughout the world are acute and will only get worse. The effects arc especially pronounced in Alaskawhere as many as 184 Alaska Native villages are threatened with removal. NARF, in addition to working with some of its present clients on this issue, previously worked with National Tribal Environmental Council (NTEC) on comprehensive federal climate change legislation. NTEC, NARF. NCAI and the National Wildlife Federation worked together and created a set of Tribal Principles and worked with national environ­ mental organizations on detailed legislative proposals. Unfortunately, t11ese efforts stalled in the Congress. NARF and NTEC attended the United Nations Framework Convention on CUmate Change (UNFCCC) Summit -COP 15- in Copenhagen, Denmark in December 2009. The purpose ofthe UNFCCC process ls to come up with an international treaty governing emissions of green­ house gases. NARF and NTEC also attended COP 16 in Cancun in December 2010. A Cancun Agreement was reached, Ukely NARFsraffreceiving their longevity awards (L to R)John Echohawk, ChrissyJohnson Dieclc, Richard Guest, Katrina Mora, Natalie Landreth, Mireille Martinez, Debbie Thomas, David Selden, SteveMoore, Chris Pereira, Don Wharton. Annual Report 2013
  • 25. Native Ame rican Right s Fund MAJOR ACTIVITIES 201 3 - CASE MAP • Hawaii
  • 26. Nat ive Ame rican Right s Fund saving the UNFCCC process. The agreement contains November 2013. No reply was ever received. increased, though inadequate, mentions of indigenous peoples and of the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP). There are safeguards calJ­ ing for "the full and effective participation" of indigenous peoples in Reduction of Emissions from Deforestation and Forest Degradation (REDD+) activities and there are also some references to taking Into account traditional indige- nous knowledge. At COP 17 in Durban, South Africa, November - December 2011, the countries established a new Ad Hoc Working Group for Enhanced Action (ADP). The coun­ tries committed to adopt a universal legal agreement on cli­ mate change as soonas possible, but not later than 2015, to go into effect by 2020. Based on this commitment, a core of countries; led by the European Union agreed to a second commitment period to the Kyoto Protocol (to which the U.S. is not a party). In addrnon, the Green CUmate Fund, which is to be the major source of funding for international mitigation and adaptation activities was agreed to and can start receiving funding. But no progress was made regard­ ing an assessment of whether safeguards for indigenous rights are being implemented. At a two week session in Bonn in May 2012, the new ADP could not even agree on the agenda until the last day. Informal sessionswere held in Bangkok, Thailand in August and September, 2012 to prepare for COP 18 which was held in Doha, Qatar in November and December, 2012. The outcome at Doha was generally anemic. A second period for the Kyoto Protocol was approved with weak emissions reduction commitments by countries accoll!nting for a mod­ est percentage ofworld-wide emissions. COP 18 resulted in nothing solid in the way of commitments from non-KP countries, and nothing as to financial commitments to developing countries. These are matters for the ADP in upcoming meetings. The can was kicked down the road once again. Further, Indigenous Peoples, along with other constituencies found their already limited rights to make interventions curtailed even more, as usually only 2-3 enti­ ties were allowed to speak. On a brighter note, the head of COP 18 attended an Indigenous caucus meeting and expressed support. The caucus asked in a letter that Qatar support a meeting between indigenous peoples and friendly states before COP 19 is held in Warsaw, Poland in Annual Report 2013 The first meetings on the specifics ofthe new "protocol to be adopted by December 2015 were held in Bonn in April/May and June, 2013. NARF attended all of the April /May meeting and part of the June meeting on behalf of NCAI. NARF was the only one to make a brief statement on behalf of the .indigenous view-point at the April/May meeting. So far, the process is very slow and developed countries are spending a lot of time on general concepts, but no specific language has been proposed yet. In November 2013, NARF attended COP 19 in Warsaw, Poland and the results were disappointing. Disturbingly, Poland only authorized a small percent ofNGOs to attend. One indige­ nous organization requested 30 slots and only seven were approved. The main accomplishment of COP 19 was the approval of a loss and damage mechanism (though with no finding) which would address loss due to climate change. On a more positive note, the Indigenous Caucus met with the organizers of COP 20 to be held in Lima, Peru and were assured that ample attendance by Indigenous participants wouId be approved and that a pre-meeting would be held between Indigenous representatives and friendly states just as had been done before COP 16 in Mexico and COP 17 in Durban, South Africa. Finally, the caucus also met with organizers for COP 21 in France who gave assurance of ample participation as well, though they did not commit to a pre-meeting. Global warming is wreaking havoc in Alaska. In recent years scientists have documented melting ocean ice, rising oceans, rising river temperatures, thawing permafrost, increased insect infestations, animals at risk and dying forests. Alaska Natives are the peoples who rely most on Alaska's ice, seas, marine mammals, fish and game for nutri­ tion andcustomaryand traditional subsistence uses; they are thus experiencing the adverse impacts of global warming most acutely. In 2006, during the Alaska Forum on the Envfronment, Alaska Native participants described increased forest fires, more dangerous hunting, fishing and traveling conditions, vjsible changes in animals and plants, infrastructure damage from melting permafrost and coastal erosion, flercer winter storms, and pervasive unpredictabiUty. Virtually every aspect of traditional Alaska Native life is impacted . As noted in the Arctic Climate Impact
  • 27. Nat ive Ame rican Right s Fund NewNARF attorneysSue Noe andHeather Whiteman Runs Him. Assessment of 2004, indigenous peoples are reporting that sea ice is decUning, and its quaUty and timing are changing, with important negative repercussions for marine hunters. Others are reporting that salmon are diseased and cannot be dried for winter food. There is widespread concern about caribou habitat diminishing as larger vegetation moves northward. Because of these and other dramatic changes, traditional knowledge is jeopardized, as are cultural struc­ tures and the nutritional needs of Alaska's Indigenous peoples. Efforts are continuing to convene Congressional hearings on climate change impacts on indigenous peoples. In Native Village of Kivalina v. Exxon Mobil, NARF represents the Native Village of Kivalina, which is a federally recogni2ed lndjan Tribe, and the City of Kivalina, which is an Alaskan municipality, in a suit filed on their own behalf 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 defen­ dant. The suit claims damages due to the defendant com­ panies' 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 pubUc regarding the causes and consequences of global warming. In October 2009, the District Court granted the Defendant's motion to dismiss on the basis that Kivalina's federal claim for nuisance is barred by the political question doctrine and for lack of standing under Article ill of the Constitution. In September 2012. the US Court of Appeals for the Ninth Circuit rejected the Tribe's appeal. The Court held, in a very short and cursory opinion, that the federal Clean Air Act defines the full scope of all federal remedies for air pollution and, since there is no monetary damages remedy under the Clean Air Act, there is no monetary damages remedy under federal common law. Writing a separate opinion, Judge Pro noted that the most recent case law from the Supreme Court - the Exxon Shipping case (i.e. Exxon Valdez oil spill case), holds the opposite; in his concurr"ing opinion Judge Pro struggles to make sense of the law since older case law would deny Kivalina's claims while Exxon Shipping says that a federal environmental statute does not bar a federal common law claim for monetary damages. Based on the separate opinion by Judge Pro, a petition for rehearing en bane was filed on October 5, 2012 but rejected. Plaintiffs filed a timely petition for a writ of certiorari before the Supreme Court but that petition was denied in May 2013. Annual Report 2013
  • 28. Nat ive Ame rican Right s Fund "Our determination to survive as a distinct Indigenous peoples comes from the will of our ancestors. They suffered unspeakable crimes to their spirits and bodies, and we stiU struggle to beat back this legacy ofgenocide. To outsiders, it might appear as if the Indian wars are over. J-% know that is not true. Our batde today is with historical oppression andgenerational trauma. Seeds ofdoubt and shameplanted hundreds ofyears ago continue to take root in the darkness ofeach new generation, winding its way through our communities. " - Beverly Cook, Wolf Clan, Akwesasne Annual Report 2013
  • 29. Nat ive American Right s Fund Although basic human rights arc considered a universal and inaLlenable entitlement, Native Americans face an ongoing threat of having their rights undermined by the United States government, states and others who seek to limit these rights. Under the priority of the promotion of human rights, NARF strives to enforce and strengthen laws which are designed to protectthe rights of Native Americans to practice their traditional reHgion, to use their own lan­ guage and to enjoy their culture. NARF also works with Tribes to ensure the welfare of their children. In the inter­ national arena, NARF is active in efforts to negotiate decla­ rations on the rights of indigenous peoples. Religious Freedom Because religion is the foundation that holds Native com­ munities and cultures together, reUgious freedom is a NARF priority issue. In NARF's Sacred Places Project, NARF has partnered with the National Congress of American Indians and the Morningstar Institute to help ensure that various federal agencies with jurisdiction over federal lands are held accountable to their obligation to protect sacred places and provide meaningful access to tribal people wishing to use those places for traditional purposes. These efforts wiU include providing best practices analysis, as well as raising awareness of issues and different approaches that can be used to protect sacred places held by the federal govern­ ment. To the extent possible, analysis and practices learned from federal lands will also be compared for use on private and state-held lands. NARF also has written amicus briefs in select cases involving sacred places and laws pertaining to the continued ability of native people to exercise their religiol!ls and tradi­ tional cultural practices. For example, NARF wrote an arnicus brief in Yount v. Salazar, arguing that the govern­ ment was able to withdraw a million acres of land around the Grand Canyon from mining without violating the Establishment Clause of the Constitution. The Northern Ariwna Withdrawal will protect many sacred sites, trails, plants, and other cultural items from future mining claims ifit is upheld. Legal work continues on a number of Native American Graves Protection and Repatriation (NAGPRA) implemen- tation is.sues. NARF continued a decade-long effort as a member of the Colorado Commission of Indian Affairs to work out agreements and protocols with the Colorado Strate Historical Society for the repatriation and reburial of hun­ dreds of Native American human remains, both culturally affiUated and unaffiliated. Part ofthe work also involved the development of a protocol for the future identification and disposition of Native American remains disturbed on state or private lands, which specifies a process for consultation with interested tribes and for the reburial on site of those remains whenever possible. The massive Chuitna Coal project in Alaska threatens to destroy a vital salmon habitatstream that the Tyonek Native ViUage utilizes for subsistence fisheries. After agreeing to assist the Tribe in protecting its subsistence fisheries resources, legal research 'established that much more was at stake as recent field surveys and excavations found numerous house pits, cultural features, and religious remains in the project area. Under such circumstances the National Historic Preservation Act requires that the federal agency tasked with jurisdiction immediately contact the impacted Tribe to seek consultation regarding the protection of the historic resources. Under existing law Tyonek should be granted the opportunit:y to identify its concerns about historic properties, advise on the identification and evalua­ tion of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects. NARF has engaged an expert and has been working with the Tribe's Council, the State Historic Preservation Office, the National Park Service and others to effectively engage the Army Corp ofEngineers on National. Historic Preservation Act issues. NARF also met in Washington, D.C. with top agency personnel in October 2012 and received significant commitments from EPA, NOAA, Department of the Interior, NPS, NHPC, and the White House Counsel on Native American Affairs to monitor the process and ensure that tribal consultation is adhered to. NARF has been assisting the Denver area Native American community and interested tribes for almost a decade to give voice to the need to clean up and preserve a prominent geologic featurejust to the northeast ofBoulder, Colorado. Valmont Butte is an ancient volcanic uplift that Annual Report 2013
  • 30. Nat ive Ame rican Right s Fund sits prominently on the outskirts of town, just overlooking the north fork ofBoulder Creek. In pre-contact times it was the location of Ute and then Arapaho village sites. Use and occupation of the area is known to go back at least 10,000 years in antiquity. The property, owned by the City of Boulder since 2000, is known to contain substantiaJ prehis­ toric materials, including burial areas. The Butte has also until recent years been the site of an active sweat lodge. There is an abandoned mJll on the property, and taiUngs from the fi�y-plus years of milUng activities are now contained on the eastern end of the property about forty acres in si2e. The City purchased the property to locate a composting facility or fire training center. The tribes and the local Native community successfully opposed these facilities. In recent years, the effort has been to monitor the development of the City's proposed cleanup plan and also to secure a County landmark designation for the Butte and surrounding acreage. NARF represents the Kaibab Paiute Tribe in their dispute with the King County Water District and the Army Corps of Engineers who are preparing to build a dam over a burial ground that is known to contain the remains ofalmost 100 people. The Water District and the Corps have not finished their study to determine exactly how many people are stiU buried there, and the Kaibab do not want the dam built or the reservoir filled until the full extent of the burials are known and steps can be taken to protect the site and the people under the Native American Graves Protection and Repatriation Act (NAGPRA). The Native American Rights Fund is part of a working group of Indian organizations and tribal leaders to address government intervention in the lives of Native people who work with or use eagle feathers in traditional ways. Since time-immemorial, the eagle and other raptor birds have been an integral part and intrinsic to the traditions, culture and religion of many tribes, pre-dating U.S. colonization. The U.S. Fish and Wildlife Service (FWS) and other feder­ al law enforcement agencies had been conducting raids, confiscations and interrogations on many Indian reserva­ tions and pow-wow events, in at least 14 states of the west­ ern United States under what purportedly is referred to as an "Eagle Feather Sting Operation." Annual Report 2013 The immediate purpose of these investigations by the FWS was to address the illicit sale of eagles and eagle parts and the poaching of eagles. However, the impact of these investigations has awakened fear that the U.S. government is once again encroaching upon tribal culture and religious practices, to the point where the tribaJ cuJture and religion may be forced underground once again. The working group met with the FWS and the Department ofJustice {DO] in 2009 to express tribal con­ cerns about raids thatwere conducted by the FWS, FBI and other law enforcement officials who seized feathers and demanded documentation. Under federal law, only Native people can possess eagle feathers through gifts or inheri­ tance, or from a government-run repository near Denver which issues permits specifically for individual birds or parts, generaJly after lengthy waits. As a result ofthis meeting, FWS and DOJ pledged to take action regarding their lack of effective outreach and educa­ tion to tribes on poUcies regarding the possession, use, gift­ ing and crafting of eagle feathers and other endangered birds. FWS proposed the development of a Tribal Advisory Group to work out long-term solutions to the issues that tribes raised. The National Congress of American Indians {NCAI) adopted a resolution supporting the establishment of Tribal Advisory Group to the U.S. Fish and Wildlife Sel!'Vice in order to provide consultation on the policies, regulations and procedures for the acquisition, possession, gifting, crafting and use of eagles and other migratory birds by tribal members. It was also resolved that NARF shall serve as a central clearinghouse for the cases appertaining to the "Eagle Feather Sting Operation" being conducted by the FSW and other federal law enforcement agencies. NARF and NCAI continued meetings with the FSW and other federal law enforcement agencies to discuss and seek solutions as to the effects and impacts of eagle feather confiscations and to discuss the drafting of an all-inclusive bill to " fix" the gap between current law and administrative policies, regulations and procedures. As a result of these efforts, the Department of Justice announced in October 2012 a department-wide, internal policy regarding the enforcement of laws that affect the
  • 31. Nat ive American Right s Fund abiUty of members of federally recognized Indian tribes to poss� or use eagle feathers. The policy provides that, con­ sistent with the Department of Justice's traditional exercise of its discretion, a member of a federally recognized tribe engaged only in the following types ofconduct will not be subject to prosecution: possessing, using, wearing or carry­ ing federally protected birds, bird feathers or other bird parts (federally protected bird parts); traveling domestically with federally protected bird parts or, if tribal members obtain and comply with necessary permits, traveling inter­ nationally with such items; picking up naturally molted or fallen feathers found in the wild, without molesting or disturbing federally protected birds or their nests; giving or loaning federally protected bird parts to other members of federally recognized tribes, without compensation of any kind; exchanging federaUy protected bird parts for federally protected bird parts with other members of federally recognized tribes, without compensation of any kind; and providing feathers or otherparts offederally protected birds to craftspersons who are members of federally recognized tribes to be fashioned into objects for the eventual use in tribal religious ofcultural activities. NARF has also continued its representation of the Native American Church of North America in addressing issues concerning the sacramental use of peyote in their religious ceremonies. NARF has begun a project to research the impact of the peyote harvest decline in Texas on Native American Church members and to develop and support access to and the use of the holy sacrament, peyote, for our client, the Native American Church ofNorth America. Indian Education During the 19th and into the 20th century, pursuant to federal policy, Native American children were forcibly abducted from their homes and put into Christian and government run boarding schools. Thepurposewas to '"civ­ ilize" Indiansand to stamp out native culture. It wasa delib­ erate policy of ethnocide and cultural genocide. Cut off from their families and culture, the children were punished for speaking their native language, banned from conducting traditional or cultural practices, shornoftraditional clothing and identity of their native culture, taughtthat their culture and traditions were evil and sinful, and that they should be ashamed of being Native American. Placed often far from home, they were frequently neglected or abused physically, sexually and psychologically. Generations of these children became the legacy of the federal Boarding School Policy. They were returned to their communities, not as the Christianized farmers that the Boarding School Policy envi­ sioned, but asdeeplyscarred humans lackingtheskills, com­ munity, parenting, extended family, language, and cultural practices. ofthose who are raised in their cultural context. There has been scant recognition by the U.S. federal gov­ ernment that initiated and carried out this policy, and no acceptance ofresponsibility for the indisputable fact that its purpose was cultural genocide. There are no apparent Annual Report 2013
  • 32. Nat ive Ame rican Right s Fund realistic legal avenues to seek redress or healing from the deep and enduring wounds inflicted both on the individuals and communities of tribal nations. Lawsuits by individuals have been turned aside, and unlike other countries that implemented similar poHcies - e.g. Canada and Australia - there has been no official U.S. proposal for heaHng or reconciUation. The Boarding School Healing Project, directed by the National Native American Boarding School Healing Coalition, mission is to secure healing and reconciLlation among Native American individuals, farniUes, communities, tribes, Pueblos, and Alaskan villages victimized by over a century of documented boarding school human rights violations. Currently, the Project is primarily in a phase of conducting education and outreach, which has three general areas of focus at this time: ( 1) Indian Country, (2) Congress, and (3) Churches. Outreach in Indian country has been moving forward by givin& presentations at regional tribal organization meetings, as well as working with Indian Country media whenever available. We have also made contact with the Assistant Secretary of Indian Affairs' staff and are keeping that office informed of our work. Project staffhave been meeting and teleconferencing with staff from both the House Native American Caucus and the Senate Committee on Indian Affairs. We will provide briefings to staff of members of each group, as requested, in order to create spheres of awareness among Congressional staff. We continue to work with representatives from the Council of Native American Ministries ln order to raise awareness among churches working in lndfan Country. We also presented to a multi-denominational audience at a briefing on the boarding schools sponsored by the Friends Committee on National Legislation (Quakers) in December 2013 in Washington DC. We are also collaborating with the local Boulder Quaker chapter and Haverford College faculty on attempting to raise awareness and academic inter­ est in church investigation and admission of roles in the boarding school policy as a field of research. NARF is seeking and compiling r(!Search on transfer of trauma related symptoms across generations of a family {Historical Trauma). as well as on heaUng models for trauma. We share this information as much as possible with anyone interested. Annual Report 2013 Recent developments mark a historical shift in Indian education law and policy by taking the fLrSt step in accom­ plishing "educational tribal sovereignty." NARF, other Indian organizations and tribes have been advocating for sys­ temic changes to American Indian/Alaska Native (AI/AN) education. Changes that would increase involvement oftribal governments, educators, parents, and elders in what Af./AN students are taught, !how they are taught, who teaches them, and where they learn. Tribal control ofthese core issues can amount to educational tribal sovereignty. NARF represents the Tribal Education Departments National Assembly (TEDNA), a national advocacy organi­ zation for tribal education departments and agencies (TEDs/TEAs) that works to strengthen the legal rights of tribes to control the formal education of tribal members. NARF started TEDNA in 2003 with a group of tribal education department directors from Indian tribes across the country. Since its inception, NARF has hosted National meetings with TEDNA to 1) identify obstacles impeding educational tribal sovereignty, 2) develop policy initiatives to address such obstacles, and 3) advocate and provide technical assistance on such policy initiatives. After over 20 years of work, NARF and TEDNA secured the first source of direct federal funding - $ 2 million - for tribal education departments ("TEDs") in the Labor, Health, and Human Services Fiscal Year 2012 Appropriations Bill to be distributed by the U.S. Department of Education via a competitive grant process under a new State Tribal Education Partnerships ("STEP") Program. The STEP program authorizes eLlgible TEDs to participate in a pilot project that allows TEDs to operate federal education programs in schools located on Indian reservations. STEP grants were awarded to the Nez Perce Tribe, the Confederated Tribes of the Umatilla Reservation, the Navajo Nation, and the Chickasaw Nation. AU of these tribes have been long time members ofTEDNA. NARF and TEDNA have been working with NCAI and NIEA on tlie Elementary and Secondary Education Act ("ESEA") amendments to provide for greater tribal self­ determination in the area of education. Several bills were recently introduced - The Strengthening America's Schools Act, S. 1094, and the Student Success Act, H.R. 5, are the primary bills. The Senate bill, S. 1094, included some of

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