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Proposed Second Amended Complaint

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Proposed Second Amended Complaint Steven Carl Moore, Esq., Colorado Bar #9863 K. Jerome Gottschalk, Esq., New Mexico Bar #3799 NATIVE AMERICAN RIGHTS FUND 1506 Broadway Boulder, Colorado 80302-6296 [email protected] [email protected] Amelia C. Holmes, Esq. Kansas Bar #20346 Kickapoo Tribal Legal Department KICKAPOO TRIBE IN KANSAS Post Office Box 110 1107 Goldfinch Road Horton, Kansas 66439 [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS KICKAPOO TRIBE OF INDIANS OF THE ) KICKAPOO RESERVATION IN KANSAS ) (also known as the KICKAPOO TRIBE IN KANSAS), ) for itself and as parens patriae on behalf of its members ) ) Plaintiffs, ) ) v. ) ) Civil Action 06-2248 MICHAEL BLACK, in his official capacity as ) SECOND Director, BUREAU OF INDIAN AFFAIRS, ) AMENDED UNITED STATES DEPARTMENT OF INTERIOR; ) COMPLAINT ) DAVID BARFIELD, in his official capacity as Chief ) Engineer of the Division of Water Resources, ) of the KANSAS DEPARTMENT OF AGRICULTURE; ) ) DEXTER DAVIS, President, Board of Directors ) WAYNE HEINIGER, Vice President ) GLENN HENNIGAN, Secretary-Treasurer ) LEO WESSEL, Officer ) RODNEY LIERZ, Officer ) JIM RENYER, Officer ) ROGER PLOEGER, Officer ) DAVID ZEIT, Officer ) 1 RODNEY HEINEN, Officer ) In their individual capacities and as current or former ) Officers of the District; ) ) NEMAHA BROWN WATERSHED ) JOINT DISTRICT NO. 7; ) ) Defendants. ) ) NATURE OF THE ACTION 1. Water is life to the Kickapoo people. Since aboriginal times in the Great Lakes region the Kickapoo people have managed water to sustain life. Many traditional stories and practices of the Kickapoo people revolve around the mystery and sanctity of water. The Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas, also known as the Kickapoo Tribe in Kansas (hereinafter the “Tribe”), has many historical, social, and religious ties to water. The selection by the Tribe of the lands which became its present reservation in Kansas was made in part due to the proximity to, and abundance of water sources. Water is vital to make the Tribe’s Reservation homeland in Brown County, Kansas a liveable and economically viable place for the Tribe and its members, as well as other non-tribal members who live on the reservation and depend on the same water supply. Nevertheless, because of the refusal of the Bureau of Indian Affairs to take affirmative protective action, and because of the systematic actions of defendants as a whole, the Tribe has been deprived of the water which it reserved in its treaties more than one hundred and fifty years ago. This action is brought to secure for the Tribe and its members the rights reserved in those treaties and the enjoyment of those rights which was secured through a contract duly entered into, but dishonored in execution. 2. This is an action under 42 U.S.C. §1983 and under 28 U.S.C. §§ 2201 et seq., seeking compensatory damages for deprivation of rights secured by treaty, by contract, and by 2 the Constitution and laws of the United States, including 42 U. S. C. § 1981, and seeking a declaration against all defendants, State and Federal, that the Tribe and its members hold the senior water rights on the Upper Delaware River and tributaries water system in Kansas, as a matter of Federal and State law. This is also an action seeking declaratory and injunctive relief against certain of the defendants, namely the Nemaha Brown Watershed Joint District No. 7, to prevent any expenditure of State and Federal funding of projects on private land in the Upper Delaware River and Tributaries Watershed (“UDT”). These projects, described in more detail herein, have destroyed and are continuing to destroy the Tribe’s access to long-term and sufficiently dependable water quantities, of sufficient quality to ensure a viable homeland. 3. This action also seeks enforcement of promises made by the United States and the State of Kansas to provide meaningful access to water for the Kickapoo people. The Tribe seeks specific performance of express promises made to the Kickapoo Tribe in 1994 in the Upper Delaware River and Tributaries Watershed Plan and Agreement (“1994 UDT Watershed Agreement” or “1994 Agreement”), executed by some of the parties to this lawsuit. 4. The 1994 UDT Watershed Agreement was executed under the authority of “PL- 566" or the “Small Watersheds Program,” as it is known. The PL-566 program was first established and funded by Congress in 1954, with the enactment of the Watershed Protection and Flood Prevention Act. Public Law 83-566, 16 U.S.C. §§ 1001-1008. The Act authorized the Natural Resources Conservation Service of the United Sates Department of Agriculture to cooperate with States, local conservation and watershed districts and private landowners – and was amended in 1981 to include Indian tribes – to carry out works of improvement for soil conservation and for other purposes including flood prevention. 5. This action is also commenced pursuant to the Federal Administrative Procedures 3 Act, 5 U.S.C. § 701, et seq. (“APA”). The Federal defendants named herein have acted in ways which are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and have repeatedly denied the specific relief sought by the Tribe, as specified in the body of this Complaint. 5 U.S.C. § 706(2). 6. For far too long the Kickapoo people have waited patiently for their State and Federal neighbors and partners to act honorably and in good faith. The Kickapoo people now seek to receive justice from the courts of the United States for promises repeatedly delayed, denied and broken. 7. The Tribe brings this action on its own behalf and as parens patriae for its members. JURISDICTION AND VENUE 8. This action is brought by a Federally recognized Indian tribe, arises under several Federal treaties and statutes, as well as Federal common law, and seeks recovery of damages for the deprivation of federal Constitutional, treaty, and statutory rights and therefore this Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343 (3) and 1362. The treaties, statutes, constitutional provisions, and Federal common law under which this action arises include inter alia: a. The 1832, 1854 and 1862 Treaties between the Kickapoo Tribe of Kansas and the United States – 7 Stat. 391 (1832); 10 Stat. 1078(1854); and 12 Stat. 1249 (1862) – pursuant to which the Tribe reserved lands for its Reservation, and reserved sufficient water and water rights to provide a viable homeland for the Kickapoo Tribe and its members These land and water rights are held in trust for the Tribe by the United States and the United States has an obligation to protect those rights. Winters v. United States, 207 U.S. 564 (1908); Arizona v. 4 California, 373 U.S. 546 (1963). b. A 1994 Federal contract executed expressly under the authority of the Watershed Protection and Flood Prevention Act of 1954 (“Small Watershed Program”), 16 U.S.C. 1001-1008, and in accordance with section 102(2)(c) of the National Environmental Policy Act of 1969(“NEPA”), Public Law 91-190, 42 U.S.C. 4321 et seq., said contract being expressly approved and authorized by Congress in 1996 and 1998. c. The American Indian Agricultural Resource Management Act of 1993, 25 U.S.C. §§ 3701 et seq., wherein the United States expressed its “trust responsibility to protect, conserve, utilize, and manage Indian agricultural lands consistent with its fiduciary obligation and its unique relationship with Indian tribes.” 25 U.S.C. at § 3701(2). Water is expressly defined therein as an agricultural resource subject to Federal trust protection. 25 U.S.C. § 3703(3)(A); d. 25 U.S.C. § 1632(5), wherein the Congress stated that “it is in the interest of the United States, and it is the policy of the United States, that all Indian communities and Indian homes, new and existing, be provided with safe and adequate water supply systems and sanitary sewage waste disposal systems as soon as possible,” because, “many Indian homes and communities still lack safe water supply systems and sanitary sewage and solid waste disposal systems.” 25 U.S.C. § 1632(4). e. 25 U.S.C. § 4301(a)(9)(B), wherein Congress expressly found that “the United States has an obligation to assist Indian tribes with the creation of appropriate economic and political conditions with respect to Indian lands to facilitate economic ventures with outside entities that are not tribal entities.” f. The Federal common law of the United States, pursuant to which the 5 United States has a trust responsibility to protect the trust assets of the Kickapoo Tribe and its members, which includes their land and water resources. g. The 1988 “Agreement in Principle Between the U.S. Department of the Interior and U.S. Department of Agriculture,” wherein these Federal departments acknowledge that “the U.S. government is the trustee of most American Indian lands” and that both departments share “a common objective of helping promote the highest and best use of [Indian] trust lands.” The Agreement in Principle also States that the Interior Department is the lead agency for the “protection of Indian trust land and resources.” The Interior Department “enter[ed] into this agreement as a foundation for their endeavors in promoting the objectives of meeting the needs of American Indians.” h. The Secretarial Order 3215 – Departmental Responsibilities for Indian Trust Resources (April 8, 2000), pursuant to which Michael Black and the Bureau of Indian Affairs have an affirmative obligation to account for the potential effect of all Federal and State actions on the trust water rights and resources of the Kickapoo Tribe and its members, and to ensure that the Department’s actions promote and protect the Tribe’s interests. i.
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