National Indian Law Library

NILL No. 010069/2002 dl cl

THE LONG STRUGGLE HOME: THE KLAMATH TRIBES' FIGHT TO RESTORE THEIR LAND, PEOPLE AND ECONOMIC SELF-SUFFICIENCY

On March 19, 2002 the Secretary of the Indeed, the entire ecosystem of the Klamath Interior invited the Klamath Tribes to meet with Basin has been so degraded that it can no longer Interior officials to work on long term solutions sustain either the quantity or quality of water to an entire range of water, land and wildlife demanded. In 2001 it was necessary for the first issues facing the people of the Klamath Basin time in nearly 100 years for the federal Bureau in Oregon and California. This historic of Reclamation to curtail delivery of invitation will include discussions of agriculture irrigation water to a the potential return of public lands federally subsidized reclamation taken from the Tribes in the project in order to avoid jeopar­ 1960's when the federal govern­ dizing treaty protected fisheries ment took the Tribes ancestral listed on the federal endangered reservation lands. The Tribes' species list. That fishery is a lands were taken as part of the central component of tribal sub­ now repudiated "Termination Era" sistence, and it has been cut off when the policy of the United since 1986 when the Tribes States Congress was to end the determined that the fishery was in government-to-government relation­ jeopardy. While Congress reacted ship with Indian tribes and force the quickly to provide 20 million dollars of assimilation of Indian economic relief to the people into the main- farmersin 2001, along with stream of the majority The Long Struggle Home: The a long list of other supports culture. Although the Klamath Tribes' Fight to and benefits, not one dime Tribes retained significant Restore Their Land, People and of relief has been provided property rights on their Economic Self-Sufficiency to the Tribes for the loss of former lands to hunt, fish ...... page 1 their fishery. The farmers and gather and water in the irrigation project rights to sustain those CASE UPDATES reacted angrily to having activities, the water and -Alaska Court Strikes Down their water deliveries wildlife resources have English-Only Law curtailed for the first time been continuously degraded ...... page 12-13 in the project's history. to a state where they can The Tribes have warned for no longer be harvested to New Board Member ...... page 14 years that the federal and provide subsistence for state governments had tribal members. Indian Law Library ...... page 14 seriously over committed

VOLUME 27, NO. 1 WINTER/SPRING 2002 Q the waters of the Basin, promising far more Z water than nature could possibly deliver in even � an average water year. That problem finally came to a head last year when the degraded en 11- condition of the Klamath basin watershed in :c c::s a year of serious drought simply could not i: meet the needs of all concerned and the endangered species took precedence. z c:r: u- At the same time the State of Oregon has a: initiated a General Stream Adjudication to LI.II E quantify the claims to the use of waters c:r: originating on the Oregon side of the Klamath � Basin. Over 700 claimants are engaged in an - administrative/judicial process that will require = several more years and millions of dollars to Z complete. Wildlife refuges necessary to support migratory waterfowl and the largest population of bald eagles in the country are chronically de-watered. Coho salmon in the lower reaches of the Klamath River are listed as threatened species and continuously fail to meet the treaty reserved subsistence needs of the Indian Tribes who depend upon them. Hatman - Klamath Warrior (Edward S. Curtis Collection It is clear that the Basin from its headwaters 1868-1952) - Courtesy of the Klamath News Department to the ocean is in a seriously degraded and depleted condition. The restoration of the The subjugation and the destruction of lifeways entire Basin is necessary to meet the needs and economic viability of sustainable agriculture, viable wildlife refuges, a vigorous fishery for both the upper No tribe in America has been more victimized and lower river tribes, and a restored habitat by the vagaries of federal-Indian policies than that accommodates habitat for healthy deer the Klamaths of Oregon. These resourceful and and related wildlife species and abundant productive people have been twice decimated by food gathering. federal policies designed to deliberately destroy their economy and undermine their culture. The Klamath Tribes are beginning discussions The prosperous and powerful Klamath, Modoc about the return of the Tribes' land base as an and Yahooskin Band of Snake Paiute people essential element of their restoration as a ("the Klamaths") once controlled 22 million people, and of the reconstruction of their once acres of territory in south central Oregon and vital economy. These discussions, of necessity, northern California. Their lifestyles and must include the restoration of the seriously economies provided abundantly for their needs degraded eco-system that is integral to the vital­ and their cultural ways for over fourteen thou­ ity of the entire Klamath Basin. It is difficult to sand years. Contact with invading Europeans, understand how the Tribes were placed in the however, quickly decimated their numbers position in which they find themselves without through disease and war and resulted in a treaty an appreciation of the historical events that reserving to the Tribes a diminished land base of placed them there. 2.2 million acres. Once traditional rivals, the three tribes were forcedto live in close proximity to one another.

PAGE 2 NARF LEGAL REVIEW The Tribes' economy and trade z were wiped out and the people !i were forced to survive on a subsis­ - c: tence basis dependent almost rn entirely on the fish, wildlife and ::s:a gathering provisions of the treaty, == a subsistence that was further rn :a diminished by the destruction of - C'") the abundant salmon runs by the ::s:a construction of hydroelectric z

dams in the early 1900's. The -:a Tribes were, in addition, forced to C') :c engage in a continuous struggle -I with the United States over its (,I,» relentless efforts to diminish and ""l"I c: ultimately wipe out the Klamath z homelands, a struggle fu rther = exacerbated by federal encourage­ Klamath Chief at Crater Lake (Edward Curtis Collection 1868-1952) - ment of strife among the tribes. S. Courtesy of the Klamath News Department

In spite of these obstacles the Klamaths thrived on the remaining fish and in 1953 on its own motion, without the request wildlife resources, and recreated their vigorous of any tribe and over the objections of almost economy based on careful timber production all tribes and Indian organizations of the day. and livestock grazing. They soon became one The purpose of the policy, in its simplest terms, of the nation's wealthiest and strongest tribes. was to force the assimilation of Indian people In 1953 the Klamath people were nearly at into the mainstream American culture by the economic parity with mainstream society. Tribal abolition of tribal governments, the eradication individual income was 93% of the majority of reservations and all tribal holdings of lands culture. The Tribe was, moreover, no burden on and assets, and a whole array of other purposes. taxpayers. The Klamath Tribes were the only In short, having gotten the benefit of the tribe in the country paying their BIA adminis­ bargain from the treaties with Indian nations, trative costs. In 1957 there were only four the federal government no longer wished Indians on welfare in the Klamath Basin - three to uphold, even in the smallest degree, its side on old age benefits and one on disability. The of the bargain. Klamath Tribes were by every measure not only no burden, but a significant contributor to Termination was, therefore, accomplished the local economy. over the objections of the majority of the tribal members and to the great detriment of the Their strength and wealth were, however, no Tribes. The thrust of the policy was to match for determined efforts of the federal abrogate and remove the bulk of the federal government to eradicate their culture and responsibilities guaranteed to the Tribes by acquire their most valuable natural resources - treaty. These treaty guarantees had been bought a million acres of land and ponderosa pine. The and paid for with Tribal cessions which stage was set for the dispossession of the surrendered over 20 million acres of prime Klamaths in the early 1950's when the Tribes timber and farm lands to the United States. were subjected to the worst of many The federal obligations promised in exchange disastrous experiments in federal-Indian policy included a whole array of services and benefits -"Termination". "Termination" was a federal to which the Klamath people were entitled. policy adopted by the United States Congress Among those federal guarantees were �

NARF LEGAL REVIEW PAGE 3 = delivery of a range of social Z services including health, educa­ � tion, and housing, as well as the (I) protection of their sovereignty and I- natural resources. ::c -c::s a: Once terminated the Tribes were z cut off from these valuable cs: services. There was not at the time, u- nor has there ever been, any com­ a: ..... pensation for the loss of these E entitlements. The value of these cs: lost services from the implementa- 1.1.1 tion of termination in 1961 until -> restoration in 1986 has been =:;: estimated to be about one hundred Z forty-eight million dollars ($148,000,000). Woman gathering wocus at the marsh (Edward S. Curtis Collection 1868- 1952) - Courtesy of the Klamath News Department There were, in addition, federal guarantees which insulated the Tribes and its members from taxation and other It is difficultto overstate the disastrous impact economic burdens imposed by the state or the enormous stupidity of these actions. and local non-Indian governments. These Congress first reached the patently sham guarantees had tremendous value - the most conclusion that the Klamath people were conservative estimate being at least $100 "ready" for termination because they had million over the period from 1961 to 1986 - yet achieved sufficient sophistication in the arts were given no consideration at Termination of "civilization" that they were prepared to when they were discontinued. assimilate into the majority culture. This conclusion was contrary to both the report of But Termination took even more important the Bureau of Indian Affairs that the Klamaths assets from the Klamath people, both tangible did not meet Congress' criteria for termination, and intangible. The intangible was the and the Stanford Research Institute report Klamaths' identity as an Indian nation among that implementation of termination would be the great circle of recognized Indian tribes disastrous. The federal agencies responsible for of America. The loss of this identity did implementing termination then reached incalculable psychological damage to the the incredible conclusion that fully one-half of Klamath people. They were inappropriately the adult Klamaths were incapable of managing viewed as having "sold out" their Indian their own affairs without a legal guardian. heritage. The tangible asset that was taken Undaunted by this extraordinary inconsistency, was the then diminished but still extensive termination proceeded to the realization of its reservation of over 880,000 acres of ponderosa actual purposes - the dispossession of the pine - the reservation lands and resources that Klamath people from their rich and prosperous embodied the sacred homeland and source of homeland and the removal of the Tribes and sustenance for these proud and resourceful its members from federal recognition. people. The timber resource by itself would, over the next 40 years, produce in excess of The corollary but unrecognized and related $450 million in revenues for the United States. inconsistency of the Klamath termination legislation was the taking of the land. Any validity to the conclusion that the Klamath

PAGE 4 NARF LEGAL REVIEW people may have been prepared for release from z federal supervision was dependent solely upon == the assessment that they were one of the, if - c not the most, economically self-sufficient tribes m in the country. But that self-sufficiency was :a::ii directly related to the revenues generated == primarily by the tribal timber and ranching m :a and related industries. - n :a::ii These industries - ranching and timber - are z

of necessity tied to the lands that support them. -:a It was, however, ownership of those very C) :c resources that termination legislation was ..... designed to remove from the Tribes and its fl) members. It was, moreover, done in a fashion -n c that guaranteed that neither the Tribes nor its z members would have any realistic chance of = acquiring any of the lands of the soon to be former reservation.

At the time of termination tribal members were separated into two groups; those who would receive their share of the tribal estate in cash from liquidation of tribal assets - the "withdrawing members"; and those who would Klamath Indian in fo rmer fo rest (Edward S. Curtis hold an undivided interest in a share of the trib­ Collection) - Courtesy of the Klamath News Department al estate to be managed by a private trustee - the "remaining members." The election to be in one fully appreciating that it meant they would lose group or the other was the only choice ever their ancestral reservation. As for the remaining given to the Klamath people. But only those who lands concept, there was no information about had reached majority - 21 years of age - could what the plan for the remaining members would vote. The tribal estate would be divided into two be, how those lands would be managed, who parcels: one to be sold to produce the revenues would manage them or what role the remaining to be paid to the "withdrawing members"; and, members would play in the management. another to be managed by a private trustee for the benefit of the "remaining members." After the election Congress determined that such a large portion of the ponderosa pine There was great confusion at the time of the forest reservation would be sold that they election. Very little useful or reliable informa­ needed to do something to protect the local tion about the real meaning of either choice was timber industry. Without any concern for the available. There was, in addition, much misin­ impact on the tribal members, Congress formation. It was generally felt that taking the amended the termination legislation and made cash being offered at the time may be the only it a provision that no portion smaller than 5,000 chance to ever get anything from the tribal acres could be acquired and that these forest estate. Many thought that they could take the lands had to be managed on a sustained yield money and acquire a parcel of land. Others sim­ basis. This new provision had two important ply did not understand that the payment meant effects: 1) it virtually assured that no tribal the loss of the lands. Given this confusion, 77% member would receive enough money to of those who voted chose to take the money, not purchase the minimum sized parcel; and, 2) �

NARF LEGAL REVIEW PAGE 5 ca since "sustained yield" was a poorly understood Z management concept at the time, it depressed � the value of the lands on the market. This was en evidenced by the fact that there was only one !;:: private bid on the lands - Crown-Zellerbach took a 90,000 acre parcel. -C::S a: z Even if a tribal member had wanted to borrow cc money to add to their share of the liquidated u - estate so they could purchase lands, they had a: LI.I little or no sophistication in financial affairs. E The only economic purpose for which they cc could have acquired the land was timbering or � ranching. It would have been nearly impossible to demonstrate any real possibility of competing -S with the United States Forest Service as a Z supplier of timber in the late 1950's. Except for the Crown-Zellerbach parcel, the rest of land was taken through condemnation by the United States to become the majority part of the Winema National Forest and a portion of the Fremont National Forest.

Congress determined after the vote that there Wife ofModuc Henry (Edward S. Curtis Collection 1868- would be a private trustee to manage the 1952) - Courtesy of the Klamath News Department so-called "remaining lands." A local bank was selected as the trustee and the remaining occasions. The trustee turned out to be the members were given very little say about how United States National Bank of Oregon. On the lands were to be managed. Once again the second vote in 1971 the majority opted to the irony and inherent inconsistency for remove the trustee. The trustee bank then deter­ the management of the "remaining lands" mined that the vote was to terminate the trust, was evident. Here were people declared by not merely the Bank's role as trustee. There was congressional finding to be prepared to handle no opportunity fo r the remaining members to their own affairs nevertheless having their assets clarify their vote and retain a new trustee. The placed under the supervision of a federally Bank began proceedings to liquidate the trust. appointed trustee. The "remaining members" Despite significant protests and one lawsuit were to have no real say or control over their (later voluntarily dismissed under community own assets nor over the actions of the trustee. pressure), the liquidation of the remaining lands Nor would the remaining members ever have of the former Klamath Reservation was arranged any real opportunity to ultimately undertake by the Bank through condemnation by the management of the trust assets for themselves. United States. Once again no member was given Indeed their only opportunity for input on the a chance to acquire any of their ancestral lands. adequacy of the performance of the trustee was a vote every five (5) years on whether to retain As outrageous as the imposition of termina­ the federally selected trustee - something tion was, as ridiculous as the liquidation they discovered only after they elected to be of the tribal estate was, few things rival "remaining members". the irresponsibility of the incredible scheme for distribution of the tribal estate The remaining members exercised their right to the withdrawing, and later the remaining, to vote on retention of the trustee on two members.

PAGE 6 NARF LEGAL REVIEW There is a temptation to point to the political ences of the majority culture. They certainly had z strife among the Klamath people and conclude no experience with large distributions of money. ::= that they were politically vulnerable because They were, in addition, not subject to state ::C they were in disarray. Such a conclusion would income or other taxes while on the reservation. m be unwarranted and erroneous. Their govern­ Although, like Indian people everywhere, they :l:li ment was far more stable than comparable paid every conceivable tax when they went to al: local non-Indian governments all over the town and purchased the necessary goods and � nation at the time. This is all the more remark­ services for daily life. c=; able considering that these people were; 1) :l:li constituted of traditional enemies forced They also had a connection to their ancestral z together on a land base representing one tenth lands, the significance of which is impossible to 25! (1110) of their original territory, 2) that they had convey here. They were spiritually responsible §! overcome a war involving the escape from and for the land that was being sold out from under -1 return to the reservation of the Modoc people, 3) them. The land was a source from which they en that they had rebuilt from the ground up a drew spiritual and cultural as well as bodily a:! viable economy, and 4) that they enjoyed a sustenance. They took their stewardship respon- Z reasonably stable tribal government and sibilities seriously. They conveyed much of their Cl relationship with the BIA for over several cultural ways to the young through experiences generations. It is impossible to imagine a on the land that reflected their relationship with healthy local government that does not have the Creator. among its numbers at least one dissenting voice on any issue, and usually one or more vocal Their lives were being transformed by forces minority factions. The Klamaths were no beyond their control and in ways beyond their different in that regard, and certainly no worse. comprehension. All of this without one single study by Congress prior to adopting this policy These were a well integrated people, economi­ about the economic, social or cultural impacts cally prosperous, politically active, culturally involved. The single possible exception to this and spiritually vital while on their reserved was the Stanford Research Institute study which homelands. They were also, for all of their was finished after Congress had adopted success at rebuilding their reservation economy, the Termination Act, and which Congress reservation Indians. That had some very ignored in all subsequent considerations in the specific meanings in the 1950's. It meant, for implementation of the Act. example, that they were unaccustomed to a number of the attributes of the majority society. It is against this backdrop that the federal They lived in a setting where they paid no government in 1961 determined to distribute property taxes. They had little or no consumer checks for $43,000 each to 1,659 Klamath debt. A significant portion of their subsistence individuals. A distribution that was to take place was taken from reservation fish and game without counseling for either the Klamaths or sources, to which they had exclusive access. the local community; without the provision for They enjoyed an enclave secure from the a reasonable transition by the Klamath people; destructive management practices of the without any safeguards against sharp dealings or Fish and Game Department of the State and the unscrupulous consumer practices. And, because habitat destroying practices of the U.S. Forest so many Klamath's "ready" for termination were Service. Few of them had checking accounts or declared to not be competent to handle their engaged in any significant amount of consumer own financial affairs, a significant portion of purchases for large and expensive items with the the payments went into individual trust exception of cars or appliances. They lived accounts managed primarily by local attorneys primarily on the reservation in small or bank trust officers, most of them having communities insulated from most of the influ- no experience in handling such matters, �

NARF LEGAL REVIEW PAGE 7 Cl and none of them having any training m siblings a year or more older received either !$ cultural sensitivity. $43,000 or a share in the Remaining Members u.. estate. As a result many of the Klamath parents en The bulk of the money distributed to the and siblings shared their distributions with !;: Klamaths which actually was delivered into those cut off by the accident of later birth. C:S- their hands was expended on the usual array of a: consumer goods purchased by most citizens of Some of the money, however, went to far more z the day; homes, furniture, appliances, cars sensational purchases. These became the fodder ::§ etcetera. These purchases were intended to of the stories told in the press about days long - accomplish at least some of the symbolic transi­ parties, multiple purchases of cars, and Indian ffi ti on of the Klamath people toward the goal they individuals walking around with thousands of E had been told they must pursue - assimilation dollars in paper bags. Many of the stories were C::::C into the majority culture. What they were not true. The fact that they were the exception � told, of course, is that no amount of money did nothing to keep them from marking all of ;:::: could purchase a non-racist community willing the Klamath people as wild squanderers C to deal honorably with them in commercial and of their money. Z social affairs. These behaviors are not significantly different The result, as predicted by the Stanford from what any thoughtful person might have Research Institute Study, was a disaster. Much of expected given a moment to reflect on what the wealth derived from the sale of the could actually happen. Any group of 2,100 Klamath's heritage was lost to sharp dealings by people randomly selected would have engaged in merchants; unscrupulous attorneys that mis­ much the same conduct given a check for a handled, embezzled or engaged in self-dealing large amount of money with no experience in from trust accounts of those determined to be financial affairs and no counseling of any sort incompetent; to poorly considered investments available to them. Recent studies of the fate - sometimes by attorneys lending themselves of lottery winners reflects some of the same money from the accounts; or to exorbitant fees experiences. charged by local attorneys or banks for the handling of the beneficiaries affairs - which Add to that the burdens facing the Klamaths. hardly ever got more sophisticated than handing They were being asked to deal with this at a time out checks to the beneficiaries - a process usu­ when their whole culture was undergoing ally handled in the most paternalistic of ways. significant upheaval. Their way of life was being They were also lost to non-Indian spouses who completely transformed. Their economic system married Klamaths, had them declared incompe­ was being stripped away. And in all of this they tent, and gained control of their assets. There were being blamed for abandoning their Indian were also those who simply wasted their identity in a situation where they had no real Klamath spouses' wealth and then left. There choices and little hope of having others under­ were, in addition, mysterious deaths of Klamath stand the complex set of circumstances that led people. And in some cases following the death of them to the situation in which they were placed. a Klamath member, the disinheriting of the One result was tremendous guilt along with children born before the marriage in favor of frustration - all the more confusing because the surviving non-Indian spouse. there was no basis at the time for understanding these feelings. These contributed to the desire, But much of the wealth went to another far both overt and subliminal, to get rid of the less visible but culturally significant end. Those money that symbolized their betrayal. It also led born after August 13, 1954 were cut off from to rampant alcoholism and the attendant eligibility to share in the distribution of the problems of suicide, domestic violence, loss of tribal estate. They would receive nothing while self-esteem, symptoms of post-traumatic stress

PAGE 8 NARF LEGAL REVIEW syndrome, and more. This is but a :z part of the legacy of termination. � < The economy of the Klamath's m was destroyed. Their land lost ::r::­ to the federal government for a :1 fraction of what would prove to be m :a its real value. The culture and - n social fabric of the people was ::r::­ seriously hurt. Their government :z

was critically undermined and all -:a but dysfunctional. Their consistent G) :z: requests for assistance in ... preserving a small portion of their (I) heritage went unheeded. They .... c: were dispossessed from the very :z land-based enterprises at which Treaty signers and descendants (Treaty of1864) = they had been so successful. They were sent to participate in a society for which they had few of the skills or increased infant mortality, decreased life inclinations necessary with which to succeed; a expectancy and more. society ill-prepared and largely unwilling to accommodate them. The single exception being The once self-sufficient Klamath people had those willing to marry tribal members to not realized the dream of assimilation that the obtain access to their relative wealth. Few of federal officials and bureaucrats had crafted and those marriages survived the dissipation of forced upon them. They had, instead, had their the payments. land and resources stripped from them; been subjected to the distribution of large sums of The local community viewed them with envy money with which they were ill-prepared to and growing contempt based on the bizarre deal; suffered the worst of consumer and other notion that the payments for their land were in practices in having that wealth wrested from some sense a windfall which was unearned and them; been offered no realistic alternatives in undeserved. This conclusion was based in part the process; and finally blamed and ridiculed for on the perception that the Klamath's inability the very process that had victimized them. to hold on to and increase that wealth was an indication that they truly had not deserved it in The enduring spirit of survival; the fight to the first place. The irony of the latter conclu­ protect part of the legacy sion all the more poignant since the loss of so much of that wealth is directly traceable to Despite the announced goals of the dealings with much of that same community. Termination Act the Klamath Tribes didn't disappear, and they didn't give up their battle to Faced with growing demoralization, the social regain what they had lost. Although the lands profile of the Klamath people reflected increasing had been taken by condemnation the Tribes evidence of all of the indices that have come to reserved to themselves the right to hunt, fish characterize one face of Indian America - poverty, and gather on their former reservation in the alcoholism, high suicide rates, low educational Treaty of 1864. Congress further determined in achievement, disintegration of the family, poor the Termination Act of 1954 that these housing, high drop-out rates from school, hunting, fishing and gathering rights would not disproportionate numbers in penal institutions, be terminated in the legislation ending the �

NARF LEGAL REVIEW PAGE 9 Cl government-to-government status of the Tribes Z with the United States and expressly said so in � the Act. Despite these clear indications the State U) of Oregon refused to allow tribal members to � exercise their rights, and subjected them to harassment and arrest. -ca a: z In 1972 five members of the Tribes, represented c by the Native American Rights Fund, brought u - suit in federal district court to have their rights a: LI.I vindicated. After appeals to the federal circuit E court the Tribes rights to hunt, fish and gather c on their former reservation lands were upheld in Man fishing. (Edward S. Curtis Collection 1868-1952) - Courtesy of the Klamath News Department � Kimball v Callahan. The Tribes, since the mid ;::: 1970's, have been working diligently to protect C the viability of these rights. were not included in the lawsuit even though z the termination legislation had expressly Despite tireless work on behalf of the Tribes to preserved the Tribes rights to water. Once again, stem the decline of those fish, wildlife and plant the Native American Rights Fund, this time on resources on which they relied for subsistence, behalf of the Klamath Tribes, intervened in the the habitat destructive practices of the United lawsuit and fought to protect the rights of the States Forest Service and wildlife decimating Tribes to the water needed to sustain the tribes policies of the State of Oregon have nearly wiped hunting, fishing and gathering rights. Once out the fish, deer and wocus - a water lily the again, after appeals that went to the federal seeds of which were a staple for the Tribes. In the circuit court of appeals, the rights of the Tribes 1960's when the State assumed management of were sustained in United States v Adair. the wildlife the mule deer were estimated to be at 60 deer per square mile. Today the are below 4 As soon as it saw the result in the Adair case, per square mile. The fisheries upon which the the State of Oregon started a General Stream Tribes primarily relied - the c'wam and qupto Adjudication (GSA) of the Klamath Basin to (two succulent mullet that exist in only one prioritize and quantify all water uses that other place in the world) - have been reduced to had been initiated prior to 1909 - the year in listing on the federal endangered species list. which the state began requiring permits to The wocus beds have been reduced to a fraction substantiate a right for the use of water. The (less than 10%) of their former range as the wet­ Tribes resisted the State's GSA in federal court lands throughout the Klamath basin are drained but were rejected and are now full participants in and water diverted fo r agriculture. the GSA.

One of the parcels acquired by the United States Throughout all of this the Tribes persisted in from the former reservation was converted into their quest for the reversal of termination, the Klamath Marsh Wildlife Refuge. Soon after it continuously seeking the restoration of the was acquired it became apparent to the federal government-to-government status unilaterally refuge managers in the United States Fish and taken from them in the 1950's. They worked Wildlife Service that the water diversions for with their own people, congressional leaders, agriculture were depriving the marsh of water, state and local community representatives, and even leaving it dry in some years. In order to anyone else who would listen. They were told secure a legal determination of the rights to frequently that despite the factthat other tribes water for the marsh the United States filed a subjected to termination had been and would be lawsuit against all of the water users. The Tribes restored, there would be no restoration for the

PAGE 10 NARF LEGAL REVIEW Klamaths. Ironically, the reason was because In like manner the Tribes have consistently z they had been "paid" for their reservation, the struggled with the State of Oregon over its !:: outrageous injustice of their treatment being practice of historically ignoring Klamath rights c completely obscured by the seemingly large when setting bag limits for wildlife take. The m amounts of money distributed and the huge result has been the decimation of the deer herds :S:­ losses of their resources and culture completely and reduction of fisheries to endangered status. :!I eclipsed by the processes that stripped them of '" ::ZI their heritage. But through the leadership and The Tribes now see a land and its related - C"') vision of the Klamath people and the assistance resources nearly decimated. The Klamaths seek :s:=­ of a few congressional leaders, the Klamath return of these lands primarily for the purpose z Restoration Act was adopted into law in 1986. of healing the land and its resources and :! restoring them to some semblance of the §! Restoration of the Tribes to the great circle of abundance they once reflected. They also seek to ""'"4 recognized tribes in America began the process restore the spiritual integrity of the land. en of providing the Tribes and their citizens with The culmination of "restoration" in its full sense C!:! the resources necessary to put their nation and is the healing of the land, its related resources, Z their people back together. But the damage and the people, both Indian and non-Indian. Ct wrought over 120 years and particularly over the last 40 years cannot be cured in a single act, nor The goals of the Klamath people are simple over a course of even a few years. Just as it took and reflective of those to which most communities decades to create the problem it will take signif­ aspire. The Klamath people wish to be self­ icant time for the Klamath people to heal it. sufficient. Their concept of self-sufficiency takes them back to earlier times when they Rebuilding their lives, their government, their experienced no dependence on any federal, state community and their economy or local non-tribal government or any other outside institutions. It recalls the time both NARF attorneys are working with the Tribes before the invading Europeans arrived and again to define both the meaning and the methods before the disastrous policy of termination was for achieving economic self-sufficiency. visited upon them. It incorporates the concept This includes a plan for the return of former of tribal independence to provide for the social, reservation lands held by the federal govern­ economic, cultural, and spiritual well-being of ment within the boundaries of the pre-termina­ all of its citizens. It is the fundamental notion of tion reservation. The federal government tribal self-determination. The Klamaths have presently holds as U.S. forest lands 690,000 never and do not now wish to participate in acres of the former reservation. federal welfare dependency. They want the ability and resources to provide for their own Since the federal government has assumed people, consistent with their cultural norms management of the Klamaths' former lands, and lifeways. they have been so poorly managed that the Tribes' were forced to sue the United States The Tribes and their citizens seek the where­ Forest Service to get a declaration that the withal to achieve these goals from the very same Forest Service needed to take into account the resources that formed the foundation of their Tribes adjudicated rights when making forest earlier ability to provide for their well-being and management decisions that could effect those development. And in that quest they seek some rights. After winning that case in federal measure of justice for the imposition of past court the Tribes and the Forest Service entered wrongs and inequities. In the simplest terms, into a Memorandum of Agreement concerning the Klamath people want the chance to restore future management. their fo rmer lands and related resources. They want their way of life back. 0

NARF LEGAL REVIEW PAGE 11 i! CASE UPDATES = .... en Alaska Court Strikes Down English-Only Law .... :c c:s a: Alaska's Official English Initiative violates Article Secti n I, o 5 of the Alaska Constitution :ii and is therefore unconstitutional, and null and void in its entirety. -" a: ..... & 4 ..... > !; z

After three years of litigation, Judge Fred The specter of governmental control of the To rrisi of the Superior Court for the State of physical appearances of private citizens, young Alaska ruled in Alakayak v. State that Alaska's and old, is antithetical to a free society, contrary Official English Initiative violates Article I, to our notion of a government of limited Section 5 of the Alaska Constitution and is powers, and repugnant to the concept of personal therefore unconstitutional, and null and void in liberty." In addressing this question, Torrisi its entirety. Judge To rrisi concluded " ...that the concluded that public officials and employees do initiative was not narrowly tailored to achieve a have free speech rights and the Official English legitimate state interest and unduly constricts Initiative interferes with those rights. the opportunities for free expression." NARF attorney Heather Kendall-Miller and Torrisi said that he realized that the people of former NARF attorney Eric Johnson, joined by Alaska did pass this initiative and that it attorneys from the Alaska Civil Liberties Union presumed its constitutionality, but ..."In the and the North Slope Borough Law Department, end, however, it appears that the main purpose claimed that Alaska's English-only law is uncon­ of the initiative was to try to change people's stitutional because it violates constitutional behavior; to make non-English speakers learn rights to free speech, equal protection, and due the language more quickly. But both the process, and argued those pending motions for American experience and a world view teach summary judgment on October 12, 2001. otherwise - in a free society, laws about language don't accomplish much." NARF had filed the Alakayak case in February 1999, in the state superior court in Anchorage, In addressing the free speech rights of public on behalf of twenty-seven individual plaintiffs employees and as to what limitations can be who sought an order declaring that English­ placed on government in this regard, Torrisi only Ballot Measure Six is unconstitutional. quoted Justice Rabinowitz of the Alaska On March 3, 1999, Alaska State Superior Supreme Court who stated " ...The United States Court Judge Fred Torrisi granted a preliminary of America, and Alaska in particular, reflect injunction that enjoined the State of Alaska a pluralistic society, grounded upon such from the operation and enforcement of Alaska's basic values as the preservation of maximum Official English Initiative, which was passed by individual choice, protection of minority senti­ state voters in November 1998. ments, and appreciation for divergent lifestyles.

PAGE 12 NARF LEGAL REVIEW Heather Kendall-Miller explained that NARF The measure also contained a private cause of z brought this lawsuit "to protect the rights of action that allowed any person to bring suit == Alaska Native villages to freely choose, shape and against a government entity to enforce the ::C: control the forms of community self-governance provisions of the act. Thus, a non-Native rn that exist in their local communities." Because resident of Anchorage would have been able to :s=­ Alaska Native villages exercise their powers of bring an enforcement action to require a Yupik- :I community self-governance through numerous speaking community in Southwest Alaska, to rn structures, both tribal and state, many of the force it to conduct its city business in English, :! most basic powers of community self-gover­ and English only. g nance in Native villages are exercised through z institutions established under state law, such as The impact of this statute would have been :a city governments, school districts, and the direct and immediate, had it gone into effect in m various citizen advisory boards that provide March 1999. For example, of the 226 Native :Z: local input on state agency decisions. villages in Alaska, over 100 have formed UJ As Kendall-Miller explained, "Alaska Native municipal governments. It is very common for .., villages have a fundamental community right to city officials to conduct business in Yupik, C: govern themselves through whatever structures Inupiat, or Athabaskan languages. If this !ii they may choose, which necessarily includes the initiative had become law, they would no longer right to do so in the Native languages of their have been able to do so. And, if they had, they communities, the only languages many of would have been law breakers and potentially their citizens can understand." subject to suit. Moreover, those city officials who do not speak English as a first language (and The temporary restraining order and prelimi­ there are many in rural Alaska), would have nary injunction had become necessary because a effectively been excluded from participating in number of the Alakayak plaintiffs had meetings local government. The breadth of this measure of their city governments or school functions made it all the more unconstitutional, since it scheduled for after the date the law would have violated both free speech and the constitutional gone into effect. She added that the potential for right to participate in and have access to state enforcement of the English-only law government. against these plaintiffs after that date "threat­ ened the most basic sovereign rights of these Because the measure extended to all state communities to meaningful self-government." employees, it would have prohibited an Inupiat school teacher and a monolingual Inupiat­ The "English Only" initiative was written speaking parent from speaking in Inupiat in very broad terms, and would have had a about a child's education. It would have also major impact upon Alaska Natives, had it gone precluded a discussion in a language other into effect. Unlike most other official English than English between public employees and measures that are primarily symbolic, this citizens seeking unemployment or worker's measure would have prohibited the use of compensation benefits, or access to fair housing any language except English in virtually or public assistance, or information with respect all governmental functions and actions. to child support, child welfare, foster care The measure applied to "the legislative and placement, Indian Child Welfare Act matters, or executive branches of the State of Alaska and to redress violations of those rights. In short, all political subdivisions, including all depart­ the measure would have had a chilling effect on ments, agencies, divisions and instrumentalities all Native languages, which is why NARF filed of the State, the University of Alaska, all public this lawsuit, and secured this decision to keep authorities and corporations, all local govern­ the law from taking effect. ments and departments, agencies, divisions, and instrumentalities of local governments, and all It is not yet known if the state will appeal. 0 government officersand employees."

NARF LEGAL REVIEW PAGE 13 = z NEW BOARD MEMBER = ..... Clinton Pattea, Dr. Clinton M. Pattea, a proposal for the construction of Orme Dam to en Dr. M. I- President of the Fort McDowell Yavapai Nation be built at the confluence of the Verde and Salt i§ of Arizona since 1986, was elected to the Native Rivers - a project which would have forced the ;;: American Rights Fund Board of Directors, community off of what little remained of their replacing Rebecca Tsosie who completed three ancestral homeland. The most crucial episode z cc terms on the Board. The Fort McDowell of Dr. Pattea's Presidency occurred on May 12, � Reservation is the home to the Yavapai, 1992 when FBI agents invaded the Fort l:IC Mohave-Apache and Apache Indians. Dr. Pattea McDowell Casino, seizing the community's 348 E graduated with a degree in Business gaming machines. Community members cc Administration in 1959 from Northern Arizona quickly formed a blockade of cars, trucks and University. In 1999, he was recognized with an machinery, preventing the movement of the I.I.I Honorary Doctorate Degree from Northern Agents and machines. The Fort McDowell -> =c Arizona University for his " ...continued com- Casino had been waiting for several years to Z mitment to education for his Tribe, for all sign gaming compacts with the state govern­ Indians, and for non-Indians as well..." ment, which was opposed to Indian gaming at the time. With a standoff in effect, Dr. Pattea Dr. Pattea began his public service in 1960 as successfully negotiated and signed a compact an elected Tribal Council member, which has with the Governor of Arizona, ensuring the continued to the present time. He witnessed future of Indian gaming and tribal sovereignty first-hand many of the obstacles faced by his for Indian tribes in Arizona. Since this time, people: low educational attainment, unemploy­ Dr. Pattea has overseen the extensive creation ment and lack of sufficient social and health of social, health, environmental and education­ services. But he knew that his homeland, rich al services for his people. in culture and history, held much potential. His tenure in tribal leadership encompassed The NARF Board of Directors and staff look two historic events which solidified the Tribe's forward to working with Dr. Clinton Pattea. 0 sovereignty. First, the Tribe successfully defeated

National Indian Law Library

The National Indian Law Library (NILL) located at the library patrons can then choose to review their selected Native American Rights Fund in Boulder, Colorado is a materials, request mailed copies for a nominal fee, or bor­ national public library serving people across the United row materials through interlibrary loan. In addition to States. Over the past thirty years NILL has collected near­ making its catalog and extensive collection available to ly 10,000 resource materials that relate to federal Indian the public, the National Indian Law Library provides and tribal law. The Library's holdings include the largest reference and research assistance relating to Indian law collection of tribal codes, ordinances and constitutions and tribal law. NILL serves a wide variety of public patrons in the United States, legal pleadings from major American including attorneys, tribal and non-tribal governments, Indian cases; law review articles on Indian law Indian organizations, law clinics, students, educators, topics; handbooks; conference materials; and government prisoners and the media. The National Indian Law documents. Library users can access the searchable Library is a project of the Native American Rights catalog which includes bibliographic descriptions of Fund and is supported by private contributions. the library holdings by going directly to: For further info rmation about NILL, visit: http://wanderer.aescon.com/webpubs/webcat.htm or by http://www.narf.org/ nill/nillindex.html or contact Law accessing it through the National Indian Law Library link Librarian David Selden at 303-447-8760 or on the Native American Rights Fund website at [email protected]. Local patrons can visit the library at www.narf.org. Once relevant materials are identified, 1522 Broadway, Boulder, Colorado. 0

PAGE 14 NARF LEGAL REVIEW z THE NATIVE AMERICAN RIGHTS FUND == - The Native American Rights Fund (NARF) was founded NARF strives to protect the most important rights of c: m in 1970 to address the need for legal assistance on the Indian people within the limit of available resources. To :a:- major issues facing Indian country. The critical Indian achieve this goal, NARF's Board of Directors defined five == issues of survival of the tribes and Native American priority areas for NARF's work: (1) the preservation of m people are not new, but are the same issues of survival tribal existence; the protection of tribal natural (2) -:a that have merely evolved over the centuries. As NARF resources; (3) the promotion of human rights; (4) the n is in its thirty-second year of existence, it can be accountability of governments to Native Americans; and :a:­ z acknowledged that many of the gains achieved in Indian (5) the development of Indian law. Requests for legal :a country over those years are directly attributable to assistance should be addressed to NARF's main office at - the efforts and commitment of the present and past Broadway, Boulder, Colorado NARF's C) 1506 80302. :z: clients and members of NARF's Board and staff. clients are expected to pay whatever they can toward the .... However, no matter how many gains have been costs of legal representation. en "'" achieved, NARF is still addressing the same basic issues c that caused NARF to be founded originally. Since the NARF's success could not have been achieved without z inception of this Nation, there has been a systematic the financial support that we have received from Cll attack on tribal rights that continues to this day. throughout the nation. Your participation makes a For every victory, a new challenge to tribal sovereignty big difference in our ability to continue to meet arises from state and local governments, Congress, ever-increasing needs of impoverished Indian tribes, or the courts. The continuing lack of understanding, groups and individuals. The support needed to and in some cases lack of respect, for the sovereign sustain our nationwide program requires your attributes of Indian nations has made it necessary continued assistance. 0 for NARF to continue fighting.

NARF's website awarded Standard of Excellence by the Web Marketing Association. Visit NARF's award winning website at www.narl.org

NA RF Annual Report. This is NARF's major report TaxStatus. The Native American Rights Fund is a nonprofit, charitable organi­ on its programs and activities. The Annual Report is dis­ zation incorporated in 1971 under the laws of the District of Columbia. NARF tributed to foundations, major contributors, certain fed­ is exempt from federal income tax under the provisions of Section 501 C (3) of eral and state agencies, tribal clients, Native American the Internal Revenue Code, and contributions to NARF are tax deductible. The organizations, and to others upon request. Editor, Ray Internal Revenue Service has ruled that NARF is not a "private foundation" as Ramirez ([email protected]). defined in Section 509(a) of the Internal Revenue Code.

Th e NA RF Legal Review is published biannually by Main Office: Native American Rights Fund, 1506 Broadway, Boulder, Colorado the Native American Rights Fund. Third class postage 80302 (303-447-8760) (FAX 303-443-7776). http://www.narf.org paid at Boulder, Colorado. Ray Ramirez, Editor Washington, D.C. Office: Native American Rights Fund, 1712 N Street, NW, ([email protected]). There is no charge for subscrip­ Washington, D.C. 20036 (202-785-4166) (FAX 202-822-0068). tions, however, contributions are appreciated. Alaska Office: Native American Rights Fund, 420 L Street, Suite 505, Anchorage, Alaska 99501 (907-276-0680) (FAX 907-276-2466).

NARF LEGAL REVIEW PAGE 15 Wallace E. Coffey, Chairman ...... Comanche Mary T. Wynne, Vice Chairwoman ...... Rosebud Sioux Jaime Barrientoz ...... Ottawa/Chippewa

Billy Cypress ...... Mic cosukee John Gonzales ...... San Ildefonso Pueblo Nora Helton ...... Fort Mojave Karlene Hunter ...... Oglala Lakota Kenneth P. Johns ...... Athabascan E. Ho 'oipo Pa ...... Native Hawaiian Clinton Pattea ...... Fort McDowell Yavapai Sue M. Shaffer ...... Cow Creek Band of Umpqua Ernie L. Stevens, Jr...... Wiscons in Oneida Michael P. Williams ...... Yup 'ik Executive Director: John E. Echohawk ...... Pa wnee

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