Alter 16 Years Nez Perce Tribe Water Rights Settlement Framework Announced The Native American Rights Fund has repre way for a long-term public water policy for sented the Nez Perce Tribe in its water rights Idaho and enables the United States to fulfill claims in the State of Idaho's Snake River Basin trust responsibilities for the Tribe," said Adjudication ("SRBA") since January 1988. The Secretary Norton. Tribe's claims to water rights for instream flows Nez Perce Tribal Executive Committee in the Snake River and its primary tributaries, Chairman Anthony Johnson commended the the Salmon and Clearwater Rivers, to springs on hard work of the mediating parties. "We are lands ceded by the Tribe in 1863, and to on pleased at the progress that has been made in reservation consumptive uses of water, were filed resolving these difficult issues. The process can in the SRBA in 1993. The Nez Perce claims now move forward to closure with new momen- dispute has been the tum, for the benefit of all biggest outstanding dispute concerned." Idaho Governor in the SRBA, which includes a legal inventory ~ Nez Perce Tribe Water Righ~ ..•. p4ge l . f~~: "~~~~~~~::en~ta!~~ of about 180,000 water ~ The 'fribaLSupreme Court Pr()ject enable the State of Idaho to rights claims in 38 of .. ·.:.:~ .. ,:.~ .. ,.: ... ~; ..•. ~:; ...... :.... :.:., .. :: .. :. page 6 more effectively address its Idaho's 44 counties. Since responsibilities for water 1998, however, the Nez ~ CASE UPDATES · ·. •. ·.. ··. resource management and BJAGrant to· Fund Indian LegaL Perce Tribe, the United the needs of protected fish" ServiCes <''''.' ...... :... :...... ,: page I? States, the State of Idaho, Among the major initia and local communities f>residentSigns Executive Order.on. tives, the three sovereign and water users in Idaho Indian Education·"···~ ...... :.: page 12 ·. parties and Idaho water have engaged in court- users have agreed to a long ordered mediation, led by ~ Indian Law Library ...... ,.... page 14 term flow augmentation Duke University Law plan for the Snake River Professor Francis McGovern, above Hells Canyon, a to resolve the claims of the major instream minimum Nez Perce Tribe. flow plan for important streams and rivers in the In a press release issued by the U. S. Salmon and Clearwater River basins, and an Department of the Interior on May 15, 2004, agreement to use 200,000 acre-feet of water in Interior Secretary Gale A. Norton, Idaho Dworshak Reservoir for a flow augmentation Governor Dirk Kempthorne and Nez Perce plan benefiting listed species in the Clearwater Tribal Executive Committee Chairman Anthony and Snake Rivers. The United States also will Johnson announced an agreement to settle the agree to tribal management of Kooskia National Nez Perce water rights claims in the Snake River Fish Hatchery and tribal co-management of Basin. "This framework agreement clears the Dworshak National Fish Hatchery, establishment ~ VOLUME 29, N0.1 WINTER/SPRING 2004 of a $50 million fund for the Tribe to restore and The settlement also will include the transfer of =z improve fish habitat, develop water resources scattered parcels of federal Bureau of Land ....= and other agricultural projects, and a $23 million Management lands within the present Nez Perce U) fund for improvements to the Tribe's drinking Reservation to the Tribe. The transferred units ....:z: water and sewage systems. will be subject to all valid existing mineral c:s The Nez Perce Tribe is located in northern claims, grazing leases, rights of way and other -a: Idaho near the confluence of the Snake and rights and permitted uses. The parcels, valued at z Clearwater Rivers. The current reservation $7 million, will assist overall management and cc u boundaries contain approximately 700,000 provide valuable compensation and benefit to the -a: acres, or about one-tenth of the original seven Tribe without incurring additional appropriations LI.I million acre reservation reserved in the Treaty of or costs. The Tribe's share of the settlement is E 1855 with the United States. That treaty also about $93 million over 30 years. This agreement cc reserved to the Tribe off-reservation fishing is the first major step in the settlement process. ~ rights at all "usual and accustomed" sites on and State and federal legislation, final Nez Perce - off the reservation. Subsequent treaties and tribal approval, a court consent decree, and the =:i: agreements reduced the size of the reservation, drafting of ESA and NEPA documents also are Z but expressly left intact the Tribe's on and off- needed. Reservation treaty fishing rights. These rights are exercised by the Tribe's members at ceremonial, Agreement Background subsistence and commercial fisheries. The Snake River Basin Adjudication (SRBA) is In May of this year, all parties to the negotiations a water rights adjudication of the Snake River signed on to a comprehensive term sheet agree within the State of Idaho. As a part of that ment, which also calls for the suspension of all adjudication, the Nez Perce Tribe and the United litigation regarding Nez Perce claims in the States, as trustee for the Tribe, filed a variety of SRBA. The parties created a coordinating claims to water rights, based on treaties entered committee and drafting subcommittees to into between the United States and the Nez implement a plan which included drafting federal Perce Tribe. Among these, water rights were and state approval legislation. The Idaho claimed for instream flows to protect the Tribe's Supreme Court and the SRBA Court both agreed treaty-reserved fisheries. Those claims were to suspend all litigation to permit settlement contested by the State of Idaho and certain negotiations to proceed. The parties asked the Idaho water users because they could have SRBA Court and the Idaho Supreme Court to affected the rights of Idaho water users to extend the stay of all appeals and litigation until continue to divert water. By order of the SRBA March 31, 2005. Court in 1998, the parties have been attempting The agreement will launch a habitat restoration to resolve the issues. Negotiations to resolve the and management initiative in the Salmon and instream flow water right claims have focused Clearwater River Basins to improve instream on finding ways to protect fish habitat, including flows and fish habitat and passage to benefit both flow and non-flow related issues, while ESA-listed fish. The parties will agree on minimum preserving existing water uses. flows pursuant to a state law process for 184 The claims for the Tribe include not only the Tribal Priority Rivers and Streams that are instream flow water right claims, but also claims important for anadromous fish. These flows will to support the Tribe's consumptive water needs be established in a manner that protects all and claims to springs in the area ceded by the existing uses of water and provides for limits to Tribe in 1863. The proposed settlement includes future water development. A Habitat Fund will provisions resolving all of the issues relating to support improvements under this program and the Tribe's water right claims. the state will administer innovative cooperative The parties to the mediation included the agreements under the ESA to enhance riparian United States and the Tribe as claimants, as well habitat. as parties to the SRBA who filed legal objections
PAGE 2 NARF LEGAL REVIEW z !:; - to the Tribal claims. These objectors include the The proposed settlement agr~ement would State of Idaho, Idaho Power Company, and water finally and fully determine the Tribal claims to users throughout the Snake River basin within water rights, set out the understandings and · Idaho. After several years of negotiations, the criteria necessary to provide long-term ESA parties have developed a framework for a proposed compliance for water use in the Snake River settlement agreement (although not a party to basin in Idaho and for timber land management the settlement, Idaho Power participated in the activities on state and private lands, and protect mediation and is expected to continue working existing water uses. with others on issues associated with the Hells Canyon Complex). Nez Perce Tribal Component Specifically, the Agreement's framework is The Tribal component resolves water and divided into three separate components: (1) the other natural resource concerns raised by the Nez Perce Tribal component to resolve issues Tribe in the SRBA. These resource concerns relating to its water claims as well as related include water rights, development of water land and natural resource issues; (2) the resources, hatchery management, certain BLM Salmon/Clearwater component to protect flows lands, and fisheries habitat. In exchange for the and habitat within the Salmon and Clearwater Tribe's agreement to resolve their water right River basins; and (3) the Snake River flow com claims, as well as to resolve any other Tribal ponent to resolve issues involving the use of the water-based claims, the United States will provide Snake River above the Hells Canyon Complex. financial compensation to the Tribe. NARF LEGAL REVIEW PAGE 3 Cll The specific prov1s10ns of this component selected streams of importance to the Nez Perce Z include: (1) The Tribe's multiple-use water Tribe. These flows will provide for future domestic, ~ rights will be decreed in the amount of 50,000 commercial, municipal, and industrial uses and ~ acre-feet per year, primarily from Clearwater will allow for a certain level of future develop !ii: River sources. Water from other sources will be ment of other water uses. The State will admin ca decreed only to the extent water is unappropriated ister a cooperative agreement(s) under the -a: and existing water rights are not injured. (2) The Endangered Species Act to enhance riparian z Tribe's "springs or fountains" water rights claims habitat and protect existing and future State ::§ on federal lands within the 1863 Nez Perce permitted uses. - Treaty ceded area will be decreed, while similar Under the Forestry Component of the agree ffi rights claimed on non-federal lands will be ment, riparian/streambank protection measures 15 waived. (3) BLM lands valued at $7 million will will improve habitat for aquatic species on enrolled 111111 be transferred to the Tribe. BLM's recreational lands. This voluntary program supplements ~ lands along the Clearwater River and Lolo Creek existing Idaho Forest Practice Rules and all State - corridors will be excluded from this transfer. (4) and private landowners in the Salmon/Clearwater !::....., The United States and the Tribe will enter into River basins will be encouraged to participate. Z agreements providing for tribal management of A Habitat Trust Fund will be established to the Kooskia National Fish Hatchery and tribal provide funding for habitat improvement projects co-management of the Dworshak National Fish under both the flow and forestry programs Hatchery. (5) The United States, the Tribe, and described above. the State of Idaho will enter into an agreement regarding use of 200,000 acre-feet of water in Snake River Flow Component Dworshak Reservoir as part of a flow augmentation The Snake River flow component anticipates plan for fish. (6) The United States will establish 30-year Biological Opinions (BO) from NOM a $50 million water and fisheries trust fund for Fisheries and USFWS under the Endangered use by the Tribe in acquiring lands and water Species Act on continued operation of the rights, restoring and improving fish habitat, fish Bureau of Reclamation's projects in the upper production, agricultural development, cultural Snake River basin. These BOs would address preservation, and water resource development. issues relating to flows from the Snake River (7) The United States will provide $23 million above Brownlee Reservoir and the use of for design and construction of sewer and water water for flow augmentation. The significant system projects for local Nez Perce tribal com prov1s10ns of this component include munities. (8) In lieu of contracting 45,000 Minimum flows defined by the Swan Falls acre-feet of Payette River storage space for a Agreement will be decreed by the SRBA Court 30-year rental term, the United States will pay to to the Idaho Water Resources Board. The State the Tribe the $10.1 million present rental value of Idaho will extend the provisions of State of that storage space. The agreement does not water law (Idaho Code 42-l 763B) for the term resolve, but looks to separate discussions for a of the agreement to allow Reclamation to lease potential resolution of issues relating to the up to 427,000 acre-feet of water from Idaho Bureau of Reclamation's Lewiston Orchards water banks for flow augmentation. Irrigation District water diversion system. Reclamation will be allowed to rent or acquire up to 60,000 acre-feet of consumptive natural Salmon/Clearwater Component flow water rights from the Snake River between Many of the parties believe the Salmon/ Milner and Swan Falls for flow augmentation Clearwater component of the agreement will purposes. When added to the other rentals, this provide benefits for ESA listed species in several water may increase the total water available ways: improved instream flows, habitat, and pas for flow augmentation to 487,000 acre sage. Instream flows will be established and feet. The United States will compensate local held by the Idaho Water Resources Board for governments for impacts caused by Reclamation's PAGE 1' NARF LEGAL REVIEW z !:i c -m z:.. ==m :a n -z:.. z :a m :z:- '" ....en ....c: z Cl acquisition of this additional 60,000 acre-feet. After years of contentious litigation in the The Settlement must be approved by the Tribe, SRBA, and complex settlement negotiations, the Congress, and the State Legislature by March Tribe, the United States, and numerous water 31, 2005. In addition, a final judgment and user interests in Idaho have come together finally decree must be entered by the SRBA court. to forge a settlement agreement that moves Idaho, and its widely divergent interests, Concluding Thoughts forward into a future where these divergent The Nez Perce Tribe has been a prominent interests work together to solve Idaho's piece of party to the SRBA. Having lived in what is now a regional solution to water resource allocation know as the State of Idaho for more than 10,000 and salmon recovery. This is consistent with the years, and being a party to several treaties and Tribe's legacy the past 200 years, since the other agreements with the United States relating arrival of Lewis and Clark, of working together to natural resource - land, water, fishery - with Euro-American settlers to share the allocations, the Tribe is keenly interested in resources of the earth provided by the Creator - restoring salmon stocks to levels which enable to the Nez Perce people, the "Sacred Law." 0 its members to harvest salmon for all purposes - commercial, subsistence and ceremonial. NARF LEGAL REVIEW PAGE 5 =z The Tribal Supreme Court Project =.... U) :z:.... Introduction disputes. Judges are also ruling in favor of state m Will we wait to be destroyed in our turn, encroachment into Indian country by ruling -a: without making an effort worthy of our race? that states may regulate certain activities within z Shall we give up our homes, our country, Indian reservations, that they have the authority c::c bequeathed to us by the Great Spirit, the to impose certain taxes on reservations, and c.:. graves of our dead, and everything that is even that they may impose certain requirements -a:..... dear and sacred to us, without a struggle? on the tribes to collect those taxes for them. E I know you will cry with me: Never! Never! c::c Then ... let us form one body, one heart, and What is the Tribal Supreme Court Project? ..... defend to the last warrior our country, our The Tribal Supreme Court Project is a joint > homes, our liberty, and the graves of our project of the Native American Rights Fund =; fathers. -Tecumseh (excerpt from article by (NARF) and the National Congress of American z Tracy Labin and John Dossett, "Vigilance Indians (NCAI). The Project was created to coor through the Supreme Court Project," Indian dinate and strengthen Indian advocacy before Country Today, June 18, 2003) the United States Supreme Court and ultimately, to improve the deplorable win-loss record tribes Tecumseh, Shawnee leader and warrior, spoke have suffered before the Court in the past two these words in 1811 in a speech called Sleep Not decades. The theory behind the Tribal Supreme Longer 0 Chocktaws and Chickasaws. This was Court Project is that if tribes take a strong, one of many speeches he gave in his mission to consistent, coordinated approach before the form a grand alliance of tribes - an alliance that Supreme Court, they will be able to reverse, or would be strong enough to battle and defeat the at least reduce, the erosion of tribal sovereignty American troops that were marching deeper and and tribal jurisdiction by the Court. deeper into Indian territory to make room for migrating settlers. In Tecumseh's view, only a What Does the Supreme Court Project Do? great Indian alliance could fight this devastating The Tribal Supreme Court Project: encroachment of white settlers into Indian • Offers assistance to Tribes and tribal attorneys country. Only by uniting, could Indian nations in determining whether to file a Petition for survive. a Writ of Certiorari While these Indian wars may be over, it is time • Offers assistance to Tribes and tribal attorneys again for Indian nations to unite and fight. in writing/editing Briefs in Opposition to Today, Indians are fighting on a different battle Petitions for Certiorari - briefs aimed at ground, but are fighting just as much for their keeping successful appellate court Indian survival as they were in 1811. Today, the battles law decisions out of the Supreme Court happen in courtrooms. Judges, not soldiers, are • Fosters discussions among Indian law threatening tribes' continued sovereign exis attorneys nation-wide about pending Indian tence. Judges are ruling that Indian tribes lack law cases and issues authority to exercise criminal jurisdiction over • Coordinates a tribal Amicus Brief writing nonmembers, that they lack the power to regulate network and writes briefs on Indian issues hunting and fishing within certain parts of their • Works with States to gain their amicus brief reservations, that they lack the power to tax support in favor of tribal jurisdiction certain people within their reservations, that • Works with the United States' Solicitor they lack authority to zone certain parts of their General's Office on cases impacting tribal reservations, and that their courts lack the interests jurisdiction to settle certain on-reservation • Coordinates and conducts Moot Court and PAGE 6 NARF LEGAL REVIEW z !; - Roundtable opportunities for attorneys How is the Project Structured? preparing for oral argument before the The Tribal Supreme Court Project is staffed by Supreme Court attorneys and support personnel from both •Provides convenient on-line access to briefs NARF and NCAI. In an effort to foster greater and information on pending Supreme Court coordination in advocacy, the Project has also cases established a Working Group of more than 200 •Monitors and analyzes Indian cases in the noted attorneys and academics from across the state and federal appellate courts that have nation who specialize in Indian law and other the potential to reach the Supreme Court areas of law impacting Indian cases - areas like Information on Indian law cases in the United property law, trust law, and Supreme Court States Supreme Court, Federal Courts of litigation. The Project coordinates regular Appeals, U.S. District Courts, and State Courts is conference calls with the Working Group to located in the Indian Law Bulletins section of discuss case strategy in pending Supreme Court the National Indian Law Library website: litigation and to coordinate the writing of amicus http://www.narf.org/nill/ilb.htm briefs. The group also hold calls to discuss issues Briefs, including those at the Petition for and to make recommendations to Tribes consid Certiorari stage in pending and recent Supreme ering seeking Supreme Court review. In making Court cases are located in the Tribal Supreme such recommendations, the Working Group Court Project section of the NARF website: helps Tribes analyze the merits and risks of their http://www.narf.org/sc/index.html documents cases. The Group also offers help to those located at: http://doc.narf.org/sc/index.html. attempting to avoid Supreme Court review. ~ NARF LEGAL REVIEW PAGE7 Attorneys are always welcome and strongly holdings have included: =z encouraged to join the Working Group and are •Nevada v. Hicks (2001) Restricted the Power ...= asked to participate in the Project only as their of Tribal Courts The Court held that a tribal U) time, interest, and resources allow. An Advisory court did not have jurisdiction to adjudicate :z:~ Board comprised of NCAI Executive Committee a claim brought by a tribal member for ca members and other tribal leaders willing to alleged harm done to him by state game -a: volunteer their time also assists the Project. wardens executing a search warrant at his z The Board's role is to provide necessary political home on tribal trust land. cc and tribal perspective to the legal and academic •Atkinson Trading Co. v. Shirley (2001) a: expertise. Restricted Tribal Governmental Power The "-..... Court held that a Tribe lacked the authority E Why is the Tribal Supreme Court Project to tax a hotel or its non-Indian guests where cc Necessary? the hotel was located on fee land, even ~ A specific Supreme Court project is necessary though the land was within the exterior - both because Supreme Court litigation is boundaries of the Reservation and the Tribe !:....., unique and specialized, and because Supreme provided the hotel and its guests with essen Z Court rulings have such broad effect. Unlike tial police, fire, and medical services. most other courts, the Supreme Court has broad • Cass County v. Leech Lake Band ofMission discretion in determining which cases it hears, Indians (1998) Authorized the State to exer and in fact exercises that discretion to hear only cise Jurisdiction over a Tribe on-Reservation a very small percentage of the cases that The Court upheld the authority of states and litigants ask it to review. As one treatise on local governments to tax tribally owned fee Supreme Court litigation reports, the Court is land within the reservation asked to review more than 7,000 cases per year, •Alaska v. Native Village of Venetie (1998) but hears fewer than 100 of those. Also, the Restricted Tribal Governmental Power The Supreme Court is not bound by precedent to the Court held that Alaskan Native Villages lack same degree that the federal appeals or district the authority to tax non-members doing courts are, and thus, can and does focus more business on tribal lands because such lands on policy considerations in rendering its deci are not "Indian Country" sions. And, Supreme Court rulings become the •Strate v. A-1 Contractors (1997) Restricted law of the country, which for Indian tribes in the Power of Tribal Courts The Court held recent years is a very unfortunate fact. that a Tribal court did not have authority Perhaps the greatest threat to continued tribal over an action arising out of an automobile sovereign existence comes from the recent accident involving non-Indians on a state decisions of the United States Supreme Court. highway right-of-way on the Reservation - As noted Indian law scholar David Getches even where the plaintiff was married to a found, in the past two decades, Indian tribes tribal member, had children who were tribal have lost approximately 80% of their cases members, had lived on the reservation her before the Supreme Court. (David H. Getches, entire adult-life, and where the defendant Beyond Indian Law: The Rehnquist Court's was a contractor doing work for the Tribe. Pursuit of States' Rights, Color Blind Justice • County of Yakima v. Confederated Tribes & and Mainstream Values, 86 MINN. L. REV. 267 Bands of the Yakima Indian Nation (1992) (2001)(providing an in-depth analysis of the Authorized State Jurisdiction over Tribes Court's re-writing of Indian law.) And these loses and tribal members on-Reservation The have been severe. The Court has in recent years Court held that the County could tax on taken a very aggressive approach to eroding tribal reservation fee land owned by reservation sovereignty and jurisdiction. At the same time, Indians or the Tribe itself where the members the Court has also increased State jurisdiction or Tribe had reacquired the land after it had over Reservations. Some of the more notable been lost under the General Allotment Act. PAGE 8 NARF LEGAL REVIEW z !:i --=m :1:11 ==m :a ,.n- z :a- =:z: ....en c"'" z Cll •Dura v. Reina (1990) Restricted the Power of difficult for the Tribe to impose its own taxes. Tribal Courts The Court held that Tribes do •Montana v. United States (1981) Restricted not have criminal jurisdiction over Indians Tribal Governmental Power The Court held from other Tribes and thus may not prosecute that the Tribe could not regulate hunting such Indians when they commit crimes on and fishing by nonmembers on land held in the Reservation fee within the Reservation boundaries • Brendale v. Confederated Tribes and Bands because the exercise of tribal power over of Yakima Indian Nation (1989) Restricted nonmembers "beyond what is necessary to Tribal Governmental Power The Court held protect tribal self-government or to control that while the Tribe could enact zoning reg internal relations is inconsistent with the ulations for certain parts of its Reservation, dependent status of the tribes." it lacked the authority to zone other parts of • Washington v. Confederated Tribes of the its Reservation Colville Indian Reservation (1980) Authorized • Cotton Petroleum Corp. v. New Mexico State to exercise Jurisdiction on-Reservation (1989) Authorized State to exercise The Court held that the State could tax on Jurisdiction on-Reservation The Court held Reservation cigarette sales to nonmembers, that the State could tax non-Indian lessees including nonmember Indians. for oil and gas production even where all •Oliphant v. Suquamish Indian Tribe (1978) production occurred on-reservation and Restricted the Power of Tribal Courts The where such taxation would make it more Court held that Tribes lack criminal ~ NARF LEGAL REVIEW PAGE 9 c::ll z .....= fl) ....::z: c:s -a: z c:::c u -.....a: E .....c:::c -=- =:z jurisdiction over non-Indians and hence may amicus briefs. Representing 18 Indian tribes, not prosecute non-Indians when they commit NARF submitted a brief focusing on the factual crimes on the Reservation. issues. NCAI's amicus brief then cente-red' on the constitutional issues of the case. In its Lara Success of the Supreme Court Project decision, the Supreme Court cited both briefs. The success of the Supreme Court project has The Supreme Court heard oral arguments on been appreciable. While only in existence for a February 3, 2004 and issued its opinion on April few years, the Project has shown that by uniting 19, 2004. Central questions to the case existed in and coordinating, tribes can improve tribal the source of tribes' power to punish nonmember advocacy before the Supreme Court and can Indian offenders and in Congress' authority to possibly even help shape the direction of Indian relax restrictions on tribes' exercise of inherent law made by Supreme Court. Since its incep prosecutorial power. The Court held that Indian tion, the Tribal Supreme Court Project has tribes possess criminal jurisdiction over non improved the win-loss record of Tribes before member Indians arising from their inherent the United States Supreme Court. Out of four sovereign power. Additionally, the Court cases decided by the Court since the Project acknowledged that the Constitution authorizes began, tribes have only lost one case! The Congress to relax restrictions placed on tribes' Project succeeded in blocking efforts to have the inherent sovereignty. Supreme Court review, and possibly overturn, Billy Jo Lara, a member of the Turtle favorable Indian law decisions. The unprece Mountain Band of Chippewa Indians, married a dented victory of convincing states to file member of the Spirit Lake Tribe and resided on amicus briefs in support of the tribal position, the Spirit Lake Reservation with his wife and and in one case to disavow their support of the their two children. After repeated offenses of state position, was also achieved. domestic violence, public intoxication, and In the most recent U.S. Supreme Court resisting arrest, the Spirit Lake Tribe issued an decision, NARF and NCAI had contributed to the exclusion order, prohibiting Mr. Lara from United States v. Lara case by submitting two entering the reservation. Mr. Lara violated this PAGE 10 NARF LEGAL REVIEW z !:I --=m 1:11 m== ::a -~ 1:11z ::a -m ::c.... tn c:.... =z exclusion order and tribal police arrested him thus, not delegated to the Indian tribes by for public intoxication, resisting lawful arrest, the federal government. Moreover, the Court and violence to a police officer. Mr. Lara pled recognized the authority of Congress to relax guilty to all three charges in tribal court. The restrictions placed on the rights of Indian tribes United States then indicted Mr. Lara for the through the passage of its legislation. Congress offenses against the BIA officer, a federal asserted the authority from the Constitution's employee. Indian Commerce Clause and the Treaty Clause. In response to the United States' indictment, Therefore, the Supreme Court found that the Mr. Lara asserted double jeopardy as his defense Spirit Lake Tribe may prosecute Mr. Lara, a because the government may not prosecute a nonmember, for crimes committed on the person for the same crime twice. While United reservation. Furthermore, the double jeopardy States v. Wheeler stated that an Indian tribe acts clause cannot bar a subsequent prosecution by as a sovereign when prosecuting its own the federal government because the Spirit Lake members, in Dura v. Reina, the Supreme Court Tribe acted as a separate sovereign in its held that an Indian tribe no longer possessed the prosecution. inherent right to prosecute a nonmember The Lara decision sidestepped the question of Indian. However, Congress reacted to the Dura whether the Dura fix legislation violated the decision by passing new legislation, an Due Process and Equal Protection rights of non amendment to the Indian Civil Rights Act member Indians prosecuted in tribal courts. known as the "Dura fix," specifically recognizing Notably absent was any discussion over the inherent authority of Indian tribes to recognition of inherent powers over non exercise criminal jurisdiction over all Indians. Indians. Thus, the importance of the Tribal The question then arose about the source of this Supreme Court Project in the area of criminal authority and the applicability of the double jurisdiction will continue to call upon the jeopardy defense. In Lara, the Court recognized collective efforts of Indian tribes, legal scholars, that this authority was indeed inherent, and and Indian law firms. 0 NARF LEGAL REVIEW PAGE 11 .:::::::. CASE UPDATES ...=z BJA Grant to Fund Indian Legal Services e? The Bureau of Justice Assistance/Office of Indian country, including in the areas of energy ::z:: Justice Programs has indicated to NARF that it and natural resource development, economic ~ will provide a grant in the amount of $1,987,000 development, domestic violence, technology and 11:11: to fund Indian Legal Services (ILS) programs the "digital divide," and environmental issues. Z throughout Indian country. The grant will be ILS programs are some of the longest-standing Cl utilized to provide funding to thirty ILS programs programs in Indian reservation communities, iii: for civil and criminal representation in tribal with an excellent track record for service to I.I.I courts and to develop tribal court projects on a individual Indian people and small tribes. I host of areas in justice administration. Funding Collectively, these programs today serve I.I.I will also be provided for training and technical reservation communities in the following states: > assistance to train legal services personnel and Alaska, Arizona, California, Colorado, Hawaii, -=: the tribal court personnel with whom they will Idaho, Maine, Michigan, Minnesota, Mississippi, z be working with. Montana, Nebraska, Nevada, New Mexico, North Indian Legal Services programs serve a vital Carolina, North Dakota, Oklahoma, Oregon, role in the administration of and access to justice South Dakota, Texas, Utah, Washington, for Indian people in Indian Country. These Wisconsin and Wyoming. programs both provide legal representation to It is unquestioned that Indian country today - individual Indian people and to tribal govern and especially Indian people living below federal ments, and assist with the development of tribal poverty guidelines - suffers from a tremendous courts through the provision of their legal lack of access to legal resources. Too many Indian expertise and resources. While a majority of ILS tribes also suffer from the lack of resources to assistance is civil, some ILS programs also provide enhance the infrastructure necessary to improve tribal court criminal defense and public defender the administration of criminal and civil justice. representation. This grant will increase substantially the advocacy This grant would be used to supplement resources available to Indian reservation com resources provided through the Legal Services munities to redress the numerous and significant Corporation to continue and expand the kinds of problems identified in an extensive survey by the civil and criminal representation and assistance National Association of Indian Legal Services to tribal court systems currently conducted by (NAILS), of the ILS programs, asking each to ILS programs, including representation on a identify additional needs/projects/goals to be wide range of civil and criminal matters before undertaken with additional resources derived tribal courts; lay advocate, judicial and law from this grant. enforcement training; serving as a clearing The infusion of $1.9 million into the thirty ILS house to compile tribal laws; assisting with the programs will enable each of these programs to add development of tribal bar associations; develop valuable staff which in tum will enable the programs ment of tribal, juvenile and peacemaking codes; to broaden the scope of the activities they are and assistance to pro se litigants. Funds would already engaged in, plus take on additional advocacy also be used to expand program capacity to projects identified via the recent NAILS survey address unmet needs for legal representation in results to assist their client individuals and tribes. President Signs Executive Order on Indian Education The three original directors of the Tribal ing on April 30, 2004 by President George W. Education Departments National Assembly Bush of the Executive Order on American Indian (TEDNA) were among the attendees at the sign- and Alaska Native Education. Jerome Jainga, PAGE 12 NARF LEGAL REVIEW Education Director for the Suquamish Indian capabilities of tribal educational institutions and z Tribe in Washington; Quinton Roman Nose, the convening of a national conference on ~ Education Director for the Cheyenne-Arapaho American Indian and Alaska Native education. ::C Tribes of Oklahoma; and, Joyce Silverthorne, The 2004 Executive Order supercedes the m Education Director for the Confederated Salish Executive Order on American Indian and Alaska :DI and Kootenai Tribes of the Flathead Reservation Native Education signed by President William J. B in Montana were among the one hundred tribal Clinton in August 1998. The 1998 Executive s:I leaders, Indian educators, and federal officials to Order was the result of a proposal to the White ;::; attend the signing ceremony which was held at House by the National Indian Education :DI the Eisenhower Executive Office Building in Association (NIEA) and the National Congress of Z Washington, DC. American Indians (NCAI) for improved adminis- i! The Executive Order recognizes "the unique tration of federal Indian education programs §! educational and culturally related academic and funding. Many of the strategies and -1 needs of American Indian and Alaska Native stu activities developed under the 1998 Executive en dents consistent with the unique political and Order, however, will be resurrected by the 2004 a:! legal relationship of the Federal Government Executive Order. They include the Inter-Agency Z with tribal governments ... " In the Executive Working Group, the consultation between the = Order, the Administration affirms its commit Working Group and Indian tribes and organiza ment "to continuing to work with... Federally tions, and a focus on comprehensive Indian recognized tribal governments on a government education research and reporting. NIEA and -to-government basis, and... [to supporting] NCAI specifically had sought to reactivate these tribal sovereignty and self-determination." The activities with the new Executive Order. purpose of the Executive Order is "to assist "This Executive Order is actually stronger American Indian and Alaska Native students in than the first one with respect to the importance meeting the challenging student academic of Native language and culture when educating standards of the No Child Left Behind Act of tribal students," said TEDNA Director Joyce 2001 (Public law 107-110) in a manner that is Silverthorne. "NIEA did an excellent job of consistent with tribal traditions, languages, and advocating for and securing that," she added. cultures." The signing was preceded by an overview by The Executive Order establishes an Inter Deputy Under Secretary and Office of Indian Agency Working Group to oversee its Education Director Victoria Vasques of the implementation. The Working Group consists of Department of Education's Indian education the Departments of Education, the Interior, programs and activities in the last eighteen Health and Human Services, Agriculture, months. Her report on national activities Justice, Labor, and other departments, agencies, included the contract with the Native American or offices as designated. Within ninety days of Rights Fund to establish TEDNA. She affirmed April 30, 2004, the Working Group must develop the Department's commitment to support and a federal interagency plan that recommends work with Tribal Education Departments. initiatives, strategies, and ideas for future inter TEDNA Director Jerome Jainga pointed out agency actions that promote the Executive that, "the Executive Order clearly recognizes the Order's purpose. The Working Group also must importance of enhancing tribal governance in conduct a multi-year study of American Indian education generally, and specifically with and Alaska Native students that comprehensive respect to education research." ly describes their educational status and TEDNA Director Quinton Roman Nose con progress with respect to meeting the goals of No cluded that the new Executive Order "is a very Child Left Behind, and report the study results good document. We only wish that it had been to the President. done two or three years ago so that we all could Other activities called for by the Executive have been working under it for that time." 0 Order include the enhancement of research NARF LEGAL REVIEW PAGE 13 =z National Indian Law Library ..... Your Information Partner! =en ....:z: About the Library c:s The National Indian Law Library (NILL) located -a: at the Native American Rights Fund in Boulder, z Colorado is a national public library serving people c u across the United States. Over the past thirty-two -a: years NILL has collected nearly 10!000 resm~rce ..... materials that relate to federal Ind ran and tnbal E law. The Library's holdings include the largest c collection of tribal codes, ordinances and consti ..... tutions in the United States; legal pleadings from -=- major American Indian cases; law review articles z=: on Indian law topics; handbooks; conference materials; and government documents. Library Services Information access and delivery: Library users can access the searchable catalog which includes and a link to the newly revised bulletin page via bibliographic descriptions of the library holdings e-mail. Send an e-mail to David Selden at by going directly to: http://nillcat.narf.org/ ?r by [email protected] if you would like to subscribe accessing the catalog through the National to the Indian Law Bulletin service. The service is Indian Law Library/Catalog link on the Native free of charge! American Rights Fund website at www.narf.org. Support the Library: The National Indian Law Once relevant materials are identified, library Library is unique in that it serves the public but patrons can then choose to request copies or is not supported by local or federal tax revenue. borrow materials through interlibrary loan for a NILL is a project of the Native American Rights nominal fee. Fund and relies on private contributions from Research assistance: In addition to making its people like you. For information on how you can catalog and extensive collection available to the support the library or become a sponsor of a special public, the National Indian Law Library p~ovides project, please contact David Selden, the Law reference and research assistance relatmg to Liberian at 303-44 7-8760 or [email protected] Indian law and tribal law. The library offers free For more information about NILL, visit: assistance as well as customized research for a http://www.narf.org/nill/nillindex.html Local nominal fee. patrons can visit the library at 1522 Broadway, Keep up with changes in Indian law with Boulder, Colorado. 0 NILI..:s Indian Law Bulletins: The Indian Law Bulletins are published by NILL in an effort keep NARF and the public informed about Indian law developments, NILL publishes timely bulletins covering new Indian law cases, U.S. regulatory action, law review articles, and news on its web site. (See: http://www.narf.org/nill/ilb.htm) New bulletins are published on a regular basis, usually every week and older information is moved to the bulletin archive pages. When new information is published, NILL sends out brief announcements PAGE 14 NARF LEGAL REVIEW z THE NATIVE AMERICAN RIGHTS FUND !; The Native American Rights Fund (NARF) was NARF strives to protect the most important --=m founded in 1970 to address the need for legal rights of Indian people within the limit of J::li assistance on the major issues facing Indian available resources. To achieve this goal, NARF's B country. The critical Indian issues of survival of Board of Directors defined five priority areas for m the tribes and Native American people are not NARF's work: (1) the preservation of tribal -n= new, but are the same issues of survival that existence; (2) the protection of tribal natural J::li have merely evolved over the centuries. As NARF resources; (3) the promotion of human rights; z is in its thirty-fourth year of existence, it can be (4) the accountability of governments to Native acknowledged that many of the gains achieved Americans; and (5) the development of Indian =-m in Indian country over those years are directly law and educating the public about Indian :z:: attributable to the efforts and commitment of rights, laws, and issues. Requests for legal assis en.... the present and past clients and members of tance should be addressed to NARF's main office c""l"I NARF's Board and staff. However, no matter how at 1506 Broadway, Boulder, Colorado 80302. z many gains have been achieved, NARF is still NARF's clients are expected to pay whatever they addressing the same basic issues that caused can toward the costs of legal representation. = NARF to be founded originally. Since the inception of this Nation, there has been a systematic NARF's success could not have been achieved attack on tribal rights that continues to this day. without the financial support that we have For every victory, a new challenge to tribal received from throughout the nation. Your sovereignty arises from state and local govern participation makes a big difference in our ments, Congress, or the courts. The continuing ability to continue to meet ever-increasing lack of understanding, and in some cases lack of needs of impoverished Indian tribes, groups and respect, for the sovereign attributes of Indian individuals. The support needed to sustain our nations has made it necessary for NARF to nationwide program requires your continued continue fighting. assistance. 0 NARF Annual Report. This is NARF's major report on its The Internal Revenue Service has ruled that NARF is not a programs and activities. The Annual Report is distributed to "private foundation" as defined in Section 509(a) of the foundations, major contributors, certain federal and state Internal Revenue Code. agencies, tribal clients, Native American organizations, and to others upon request. Editor, Ray Ramirez [email protected]. Main Office: Native American Rights Fund, 1506 Broadway, Boulder, Colorado 80302 (303-447-8760) (FAX 303-443-7776). The NARF Legal Review is published biannually by the Native http://www.narf.org American Rights Fund. Third class postage paid at Boulder, Colorado. Ray Ramirez, Editor [email protected]. There is no Washington, D.C. Office: Native American Rights Fund, 1712 charge for subscriptions, however, contributions are appreciated. N Street, NW, Washington, D.C. 20036 (202-785-4166) (FAX 202- 822 0068). Tax Status. The Native American Rights Fund is a nonprofit, charitable organization incorporated in 1971 under the laws of Alaska Office: Native American Rights Fund, 420 L Street, the District of Columbia. NARF is exempt from federal income Suite 505, Anchorage, Alaska 99501 (907-276-0680) (FAX 907- tax under the provisions of Section 501 C (3) of the Internal 276-2466). Revenue Code, and contributions to NARF are tax deductible. NARF LEGAL REVIEW PAGE 15 E. Ho'oipo Pa, Chair ...... Native Hawaiian Jaime Barrientoz, Vice Chair ...... Ottawa/Chippewa Mark Brown ...... Mohegan Tribe Elbridge Coochise ...... Hopi Billy Frank ...... Nisqually Tribe John Gonzales ...... San Ildefonso Pueblo James Roan Gray ...... Osage Vernita Herdman ...... Inupiaq Karlene Hunter ...... Oglala Lakota Nora McDowell ...... Fort Mojave Paul Ninham ...... Wisconsin Oneida Anthony Pico ...... Viejas Band of Kumeyaay Indians Woody Widmark ...... Sitka Tribe Executive Director: John E. Echohawk ...... Pawnee NARF LEGAL REVIEW • VOLUME 29, N0.1 • WINTER/SPRING 2004 NARF Legal Review Non-Profit Org. 1506 Broadway U.S. Postage Boulder, CO 80302 PAID Boulder, Colorado Permit No. 589 PRINTED ON RECYCLED PAPER