•NARF WINS BIG VICTORY AS FEDERALCOURT ALLOWS PEMBINA CHIPPEWADAMAGES CLAIMS TO GO FORWARD

Indian Law Library page 14

CALLING TRIBES TO ACTION!.................................................. page 13

- Draft Declaration on IndigenousPeoples page 11

United States to get the case dismissed orsubstantially reduced. It allows the case to goforward to determine whether the United Statesbreached its trust responsibilities to thePembina Chippewas with respect to their trust

funds, and to determine anamount of damages forwhich the United States isliable for those breaches.

The Pembina Chippewas'$53 million judgmentaward is the second largestIndian judgment award

The Pembina Chippewas'trust fund is not small. In1991 as the U.S. Departmentof the Interior's Bureauof Indian Affairs enteredinto a contract with theaccounting firm of ArthurAndersen to "reconcile" all1500 tribal trust funds heldby the United States, thePembina Chippewa trust

fund was listed as the "second largest" judgmentfund being managed by the United States at thattime. The total awards to the PembinaChippewas by the Indian Claims Commission(ICC) - in 1964 and1980 -were about $53 million.Only the ICC awards to the Lakota (Sioux)Nations of about $200 million exceeded those ofthe Pembina Chippewas. ~

CASE UPDATES- Klamath Basin

Adjudication page 10

~ NARF Wins Big Victory as Federal CourtAllows Pembina Chippewa DamagesClaims to Go Forward page 1

~ New Board Members page 12

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In 1863 and 1892, plaintiffs' ancestors cededlands totaling some 20 million acres to theUnited States. The Indian Claims Commissionand this court awarded compensation for thoselands. The compensation awarded was thenheld in trust by the UnitedStates. This suit seeksdamages for mismanage­ment by the United Statesof the funds it held intrust.

So begins the Opinion ofthe U.S. Court of FederalClaims in its opinion datedJanuary 26, 2006, in thecase Chippewa Cree Tribeof the Rocky Boy'sReservation, Little ShellTribe of Chippewa Indiansof Montana, TurtleMountain Band ofChippewa Indians, andthe White Earth Bandof Minnesota ChippewaIndians, et al. v. UnitedStates.

The Court's fifty-five (55) page OpInIOn is astunning victory for these four tribes, who alsoare known as the "Pembina Chippewa Tribes." Itcomes almost fourteen years after the case wasfiled by the Native American Rights Fund(NARF) on behalf of the Pembina ChippewaTribes. It rejects four major arguments by the•

VOLUME 31, NO.1 WINTER/SPRING 2006

While the Lakota Judgment Funds have yet tobe distributed, the government has made severaldistributions of the Pembina Chippewas' judg­ment fund. In 1984, 1988, 1990, and 1994, largeamounts of the fund were, at the request of thePembina Chippewa Tribes' leaders and withcongressional approval, distributed in the formof one-time "per capita payments" to membersand non-members of the Tribes eligible toreceive such payments under the congressionalPembina Distribution Acts of 1971 and 1982.The per capita payments ranged from $44.00 to$1400.00. In addition, under the 1982Distribution Act, and also at the request of thetribal leaders, twenty percent (20%) of eachtribe's share is held by the United States in trustfor tribal economic and social programs. Thetribes are allowed to receive approved programfunds from the interest earned on their 20%shares.

The filing of this case in 1992But, particularly in 1988, at the time of one of

the per capita distributions, the tribal leaders ofthe Turtle Mountain Band of Chippewa Indianswere dismayed at the overall lack of moneyavailable for distribution. The Tribe sought anaudit of the Pembina Judgment Fund (PJF) fromthe Interior Department's Office of the InspectorGeneral. The Tribe also hired independentaccountants who confirmed to the Tribe that onthis issue, "you don't need an accounting firm,you need a law firm." The Tribe retained NARFto file a breach of trust lawsuit over the govern­ment's fiduciary management - accounting andinvestment - of the PJF from the inception ofthe Pembina Awards in 1964 to the present.A case for money damages was filed in the U.S.Court of Federal Claims in September 1992.It was filed as a class action on behalf of "allbeneficiaries to the PJF."

The United States' efforts to reconcile tribaltrust funds

For many years after it was filed, the case wasstayed upon agreement of the parties and withthe Court's approval to allow the completion of

the Arthur Andersen tribal trust fund reconcili­ation project. In the early 1980s, critical reportsby the U.S. General Accounting Office and theInterior Department's Office of the InspectorGeneral documented major problems in theUnited States' fiduciary management of tribaltrust funds. By 1987 Congress had mandated anaudit and reconciliation of the tribes' funds ­which had never been done even though some ofthe funds date back to treaties of the early 1800s.And yet the United States was required to holdthese funds in trust for tribes under its ownfederal law.

Eventually, the Bureau of Indian Affairsadmitted that it was incapable of conducting anaudit and reconciliation itself, and so it bid outthe project. The contract was awarded to ArthurAndersen, and at the end cost the government$21 million dollars. But Arthur Andersenadmittedly was unable to perform a historicalaccounting, a standard audit, or even a full rec­onciliation of the tribal trust funds - largely dueto poor or non-existent record keeping on thepart of the government. Instead, ArthurAndersen performed a very limited reconciliation

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on tribal trust funds for the time period 1972 to1992. This limited reconciliation project resultedin reports to tribes in 1996.

After studying their Arthur Andersen reports,in July 1997, at the Court's request, the PembinaChippewa Tribes filed their response to thereports. The Tribes were adamant that theArthur Andersen reports did not resolve any oftheir claims in this case, and in fact the reportssupported the Tribes' claims of misaccountingand mismanagement of the PJF. In November1997, the government replied that it was willingto entertain proposals from the Tribes inan effort to resolve this case by means of anegotiated settlement.

Efforts to resolve this case by means ofnegotiated settlement

For the next several years, the case again wasstayed by the agreement of the parties and withthe Court's approval. During this time period,the parties worked together to identify, locate,and collect the documents pertaining to the PJF.For the Arthur Andersen reconciliation period,much of the information had been collected.Still, the process was arduous. "If you or I go toa private bank or trustee and ask for our accountrecords, we will get them within a reasonabletime," says Melody McCoy, who has served asNARF's lead attorney on this case sinceSeptember 1996. "That is not the situation wherethe federal government is your trustee," shecautions. "It takes the government about fiveyears to produce all of the records for a tribaltrust fund. The records are in various storagefacilities literally across the country - from SanFrancisco to Albuquerque to Denver to Kansas toChicago to Virginia. Until recently they were notsorted or indexed by tribe or by account. Thegovernment is undertaking that effort only now,in light of repeated mandates of Congress andlawsuits like that of the Pembina Chippewas. Andat the end of the day you'll never know whetheryou've gotten all of your trust records. You'll justnever know."

But NARF nevertheless persisted on behalf ofthe Pembina Chippewas' claims. Accounting and

investment experts were hired to piece togetherwhat evidence there was of the government'saccounting and management of the PJF. ByAugust 2000, the experts had prepared and theTribes had approved a report to the governmenton their view of the government's accounting ofthe PJF from 1964 to September 1992, the end ofthe Arthur Andersen reconciliation project. TheTribes' report showed that, based on the docu­ments provided to the Tribes to date, for this timeperiod there were over 11,000 transactions in thePJF accounts. About 10,000 of these appeared tobe investment transactions, and about 1000of them appeared to be non-investment transac­tions. Of the 1000 non-investment transactions,at least 250, (one quarter or 25%) were lackingsufficient documentation or validity under thecriteria governing such transactions as set forthin the government's own tribal trust fundaccounting and management manuals. Thesequestionable non-investment transactionstotaled over $63 million.

Over the next several years, many in-personmeetings were held to discuss the 250 non­investment transactions. By March 2003 the

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government had produced sufficient documenta­tion of the validity of many of the questionedtransactions that the parties were in agreement atleast for purposes of a negotiated settlement onall of the non-investment transactions for the1964 Pembina Award (which reflected the ICCcompensation for lands ceded by the Treaty of1863 that are today located in western Minnesotaand eastern North Dakota) up through the timeof the per capita distribution of this Award thatbegan in 1984. And the parties generally were inagreement about the dates, timing, and amountsof about eighty percent (80%) of the non-invest­ment transactions for the 1980 Pembina Award(which reflected the ICC compensation for landsceded by an Agreement of 1892 that are todaylocated in northern North Dakota), up throughthe time of a major per capita distribution of thatAward that began in 1988.

The United States goes back to court to try toget the case dismissed

The parties then agreed to turn their attentionto the claims that the PJF had been underinvestedby the government. In January 2004 the Tribes'submitted to the United States a "Partial

Preliminary Report on Estimate of Damages" thatshowed the gap in how the PJF funds wereactuaJly invested compared to how in the Tribes'view they should have been invested had thetrustee properly and fully managed the PJEIt was around this time that the United Statesreturned to Court and sought to get this caseeither dismissed or substantially limited.

The Court set a schedule for briefing by theparties on the issues that the United States wasraising. Essentially, the United States wasmaking four arguments: 1) that the PJF fundswere not as a matter of law held in trust by thegovernment; 2) that Congress has not created anyfiduciary duties on the part of the government tomanage the PJF such that the government can beheld liable in court for money damages forbreaches of trust; 3) that the claims in this casewere untimely - that is, they were brought tocourt too late; and, 4) that class certificationshould be denied, largely because of a lack ofcommonality among the proposed class of all PJFbeneficiaries.

The Court rejects all of the government'sdismissal arguments

The briefing on these issues was completed inOctober 2005. On October 25, 2005, the Courtheard oral argument for over three hours by theattorneys in Washington, DC on these issues. OnJanuary 26, 2006, the Court issued its opinion onthe issues. The Court ruled against the UnitedStates and for the Pembina Chippewas on all ofthe issues.

The Court first held that as a matter of law thePJF was held by the United States in trust fromthe time of the appropriations of the awards byCongress in 1964 and 1980. The Court foundsufficient evidence of the trust status of the PJFAwards from the Permanent AppropriationsRepeal Act of 1934, 31 U.S.C. Sec. 1321(a)(67)(which classifies judgment funds such as the PJFas "tribal trust funds"); the classification by theU.S. Treasury Department of the PJF Awards astrust accounts; and, the Office of Managementand Budget's Interpretation of the trustobligations with respect to Indian trust funds.

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Further, the Court found nothing in the PJFAppropriations or Distributions Acts that negatedthe trust character of the PJF Awards.

The Court also held that Congress has createdstatutory duties on the part of the United Statesto invest the PJF Awards, and the Court can hearand resolve claims for money damages of allegedbreaches of these trust duties. NARF argued thatthe statutory duties are in the general tribal trustfund investment statutes, 25 U.S.C. Sees. 161aand 162a. The United States argued that theselaws merely authorize (as opposed to require) thegovernment to invest the funds. The Courtagreed with NARF and held that in the tribal trustfund statutes, Congress created specific fiduciaryduties on the part of government agencies for the"productive investment of trust funds" such asthe PJF. And the Court found that a "breach ofthose fiduciary duties gives rise to a Tucker Actclaim for damages."

The United States made several arguments thatsome or most of the claims in this case areuntimely under the six-year statute of limitationsthat governs generally claims against the UnitedStates. For example, the United States arguedthat claims regarding the 1964 PJF Award, whichwas largely distributed in 1984, should have beenbrought within six years of the distribution ratherthan in 1992. NARF pointed out, however, thatCongress, in a series of laws beginning in 1990has clarified that claims against the United Statesas trustee for tribal trust funds do not accrueuntil the United States provides the beneficiarieswith an accounting "from which the beneficiarycan determine whether there has been a loss."NARF further argued that no such accountinghad been provided regarding the 1964 Award orthe 1980 Award.

The Court agreed with NARF and held that allclaims for breach of trust in this case with regardto both the 1964 and 1980 Awards are timely andproperly before the Court. The Court agreed withNARF that annual and monthly account state­ments generated by the government in the 1980swere not an accounting from which losses couldbe determined. The Court also held that the PJFper capita distributions in 1984 and 1994 were

insufficient to constitute the requisite accounting.The Court also rejected the United States'argument that because it did the distributions itneed not provide an accounting.

The court understands the government tobe arguing that a trustee can avoid liability formalfeasance by handing back whatever isthen held in trust and walking away. This isnot the law... Defendant's attempt to avoidliability by arguing that its duty to trust fundbeneficiaries terminated with the distributionof the funds is unavailing.

As noted above, the plaintiff Tribes that filedthis case intended it from its inception to be aclass action on behalf of all PJF beneficiaries. TheUnited States argued vehemently against classcertification. In the end, the Court agreed withNARF that the case met the requirements forclass certification. The Court, however, was ofthe view that there is another and perhaps bettermeans by which this case can proceed - under 28U.S.C. Sec. 1505 as a claim against the UnitedStates brought by an "identifiable group ofAmerican Indians."

On this point, the Court noted that the PJFbeneficiaries already have been recognized as an"identifiable group of American Indians" under28 U.S.C. Sec. 1505, by both the ICC in theproceedings that led to the PJF Awards andCongress.

The group of beneficiaries of the 1964 and1980 Awards, as defined in the 1971 and 1982Distribution Acts, including their heirs,descendants, and successors-in-interest, arean "identifiable group." The court finds thatthe "beneficiaries of the Pembina JudgmentFund... are an 'identifiable group of AmericanIndians' under the terms of 28 U.S.C. Sec.1505 and were entitled to bring suit againstthe government at the time the Complaintwas filed.

The Court further was of the view that recog­nizing the beneficiaries of the 1964 and 1980

The Voting Rights Act and Alaska

the impact of the VRA in Alaska over the past 40years, including whether state voting practicesor procedures discriminate against minorityvoters, or how well the state is complying withthe minority language assistance provisions.

"Rural" Alaska is a term of art, qualitativelydistinct from rural Nebraska or rural Montana.As the state with the largest land area and withthe lowest population density of any state in theUnited States, rural Alaska includes nearly 200Native villages and communities that are notaccessible by road. They are only accessible bysmall propeller plane. The fewer than 300 AlaskaNatives who reside in each of these villages stillpractice their traditional way of life - living offthe land through subsistence fishing, huntingand gathering. Alaska Natives are by far thelargest minority population in Alaska, currentlymaking up 19 percent of the total statepopulation, with numbers growing in bothurban and rural Alaska. Despite certain gains,Alaska Natives are still the largest group of thetotal Alaskan population to live in poverty, withthe highest unemployment and the lowest levelof education.

Voting in rural Alaska can be a very differentexperience than voting elsewhere in the country.Voting can involve crossing a river, or askingyour grandchildren to translate for you andexplain what is on the ballot. One example isKasigluk, a Yup'ik village fifteen minutes fromBethel by air. There, the local election official

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The Native American Rights Fund, inconjunction with the National Congress ofAmerican Indians, is working with a coalition ofcivil rights organizations under the direction ofthe Leadership Conference on Civil Rights(LCCR) to ensure that Congress reauthorizescertain remedial provisions within the VotingRights Act (VRA) that are scheduled to expire in2007. In preparation for upcoming legislativehearings, NARF prepared testimony andauthored a comprehensive report that wassubmitted to members of Congress. This report,the first of its kind, details Alaska's experienceunder the VRA and concludes, rather surprisingly,not only that Alaska should continue to be cov­ered under the VRA but also that Alaska hasnever complied with the current mandate underthe VRA with respect to Alaska Natives. Thefollowing is the executive summary to the report,which was authored by Natalie Landreth of theAlaska office, Richard Guest of the DC office, andBoalt Hall law student Moira Smith.

General Report FindingsThe 1965 Voting Rights Act (VRA) is arguably

one of the most important pieces of legislationever adopted by Congress. The state of Alaska,which has the single largest indigenouspopulation in the United States, is covered bysection 5 (the preclearance provision) andsections 4(f)4 and 203 (the language assistanceprovisions) of the VRA. Yet, little is known about•

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heard) applicable under the U.S. Constitution.NARF is presently in the process of opposing

the United States' Motion for Reconsideration.NARF believes that group plaintiffs in Indianbreach of trust cases against the governmentexpressly have been provided for by Congress inthe ICC Act and in 28 U.S.C. Sec. 1505, whichclarifies the Court of Federal Claims' jurisdictionover such claims. A ruling by the Court on theUnited States' Motion for Reconsideration isexpected later this year.

It also is likely that the government will try tobring at least a few more issues to the Courtbefore it seriously considers settlement of thecase. Nevertheless, after over thirteen years ofrepresenting the Pembina Chippewas in this case,NARF is extremely pleased with the Court'sJanuary 26, 2006 Opinion which allows the caseto go forward as it originally was filed - for moneydamages on behalf of all of the beneficiaries to thePJF 1964 and 1980 Awards. Assuming that theUnited States' Motion for Reconsideration isdenied, NARF will have helped the PembinaChippewa Tribes clear many potential hurdles.NARF will look forward to getting to the merits ofthe underlying issue in the case - how muchmoney should there have been in the PJF todistribute to the beneficiaries had the trusteeproperly and timely accounted for and investedthe PJF. 0

Awards as an identifiable group offers anumber of advantages over either a classaction under RCFC 23 or permissive joiriderunder RCFC 20. By recognizing the group ofbeneficiaries as a single group plaintiff underthe original complaint, the parties mayproceed to litigate the claims before the courtwithout delay for notification to all classmembers or to all potential plaintiffs entitledto joinder. A second advantage is that anyamount of damages that may be awardedcould be shared by all group members andnot only by successful class members orparticular beneficiaries joined as plaintiffs.

Thus, the Court viewed the single groupplaintiff approach as being the most expedientand fair approach in this action.

What will happen nextNARF initially was hopeful that in light of this

opinion that is so favorable to the PembinaChippewas, meaningful negotiations between theparties on this case would resume. In February2006 the United States informally told NARF thatit was not likely to appeal the Court's rulings inthe January 26, 2006 Opinion. The attorneys forthe parties proceeded to comply with the Court'sdirective to propose jointly a form and method ofnotice to members of the plaintiff group "as shallserve reasonably to publicize the pendency of thisaction and the opportunity to participate..."Notice discussions quickly stalled, however; whenthe United States decided that it was not happywith the case proceeding in the posture of agroup plaintiff.

On April 10, 2006 the United States filed aMotion for Reconsideration of a Portion of theCourt's Opinion. The United States seeks recon­sideration of one of the four issues on which itlost - that portion of the January 26, 2006Opinion that declares "that the P.JF beneficiariesare an identifiable group under the 28 U.S.C. Sec.1505 for purposes of litigating claims that theUnited States mismanaged PJF monies..." TheUnited States argues that proceeding as a groupplaintiff in this case does not meet requirementsof Due Process (notice and an opportunity to be

announces through a borrowed marine radiothat anyone who wants to vote has to come downto the community center by 11:30 a.m. At 11:30,she promptly collects the election materials,packs up the single ballot machine, drives itdown to the river by four-wheeler and loads itonto a boat (there is no bridge) to cross over to

; the other side of the river to the old village site~ where she sets up the ballot machine again at the: school. The principal then announces on the'I radio that the poll is open. The State Division of! Elections says there are about 150 communities! like Kasigluk. It is also important to note that

24 Native villages did not even have pollingplaces in 2004.

Alaska Natives not only inhabit a uniquegeographical place, they also possess a uniquepolitical status in the landscape of Alaska.Following the adoption of the 1971 AlaskaNatives Claims Settlement Act (ANSCA) termi­nating aboriginal title to lands in Alaska, threedifferent types of Native groups or organizationsemerged in co-existence: (1) 231 federally recog­nized Indian tribes; (2) 13 for-profit Native cor­porations; and (3) 12 regional non-profit corpo­rations. These Native groups intersect with theinternal political structure of Alaska, which isdivided into 16 boroughs and one large areareferred to as the unorganized borough (an areaencompassing most of the rural Native villages).Those who reside in the 16 boroughs generallyreceive their services through their organizedand state-funded regional governments, whilethose who reside in the unorganized boroughmust generally rely on the local Native villagetribal government for services.

A History of Discrimination and Section 5Preclearance

In the early years of the twentieth century, theburgeoning Alaska Territory passed laws limitingthe ability of Alaska Natives to be citizens, toparticipate in the political process, and to entercertain public establishments. In 1924, when theU.S. Congress conferred citizenship on "allnoncitizen Indians born within the territoriallimits of the United States," the TerritorialLegislature responded by enacting a literacy law

the next year requiring that "voters in territorialelections be able to read and write the Englishlanguage." Alaska's Constitution, which became­operative with the Formal Declaration ofStatehood on January 3, 1959, also included anEnglish literacy requirement as a qualificationfor voting which was not repealed until 1970.

During World War II, the Aleuts were forciblyrelocated from their island homelands andinterned in overcrowded "duration villages" withno electricity, plumbing, clean water or medicalcare. After the war, there were still signs in storesand restaurants that read "No Natives Allowed"and "No Dogs or Indians." This history ofdiscrimination is indicative of why Alaska is acovered jurisdiction under Section 5 of the VRA.

But continuing attempts by the state to dilutethe Alaska Native vote speak to the need for reau­thorization of Section 5 of the VRA. Followingthe 1990 census, the state adopted a legislativeredistricting plan that was harshly criticized onthe grounds that it diluted Native votes, disre­garded the differences between Alaska Nativegroups, and was prepared in secret underthe influence of some questionable dealings.A coalition of Native interests appealed to theU.S. Department of Justice (DOJ) imploring DOJnot to preclear the plan under Section 5 of theVRA and identified some of the discriminatorycomponents of the proposed "anti-Native" plan.DOJ requested more information and ultimatelydeclared the plan legally unenforceable becauseof its negative effects on Alaska Native voters.Thus, throughout the redistricting process andlitigation, the VRA and DOJ stood as the last linesof defense. Without Section 5 preclearance,retrogressive practices would have been imple­mented with the approval of the Alaska courts.

As a general matter, the 2000 redistrictingproceeded without significant problems.However, three aspects of the 2000 redistrictingare relevant to the need for reauthorization: (1)compliance with the VRA was clearly the drivingforce behind several of the State's new districts;(2) the redistricting board hired a national votingrights expert whose report revealed that certainareas in Alaska still have racially polarizedvoting; and (3) in the litigation following the

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2000 redistricting, the Alaska Supreme Court setforth a new standard of deviation that willrequire future monitoring by the DOJ.

Finally, in both the 2000 and 2004 elections,the state made significant changes to itselections laws shortly before the election,including changing absentee ballot require­ments, acceptable forms of identification andpolling places. None of these changes were"precleared" prior to the election and the statelater withdrew some of these changes. While thechange of a polling place may not raise a red flagin most jurisdictions, in rural Alaska it can havea significant impact on the ability of Native votersto get to the right poll. In short, the Section 5preclearance provision has resulted in someimportant changes in Alaska's districts andelection laws.

Native Languages and Sections 4(f)(4) and 203Language Assistance

There are 20 different languages still spoken inAlaska. The largest groups of language speakersare Inupiaq (more than 3,000 speakers), SiberianYup'ik (about 1,100 speakers), and Central Yup'ik(about 10,000 speakers). Siberian Yup'ik andCentral Yup'ik are particularly important herebecause they are still the primary language ofmany of the villages and the first language thatchildren learn at home. Maintaining and pre­serving these languages is critically important tothe Native population because language expressesa culture's worldview, and is, according to theAlaska Native Languages Center, "the glue thatsticks everything together."

There is and has always been a significantdisparity in educational opportunities for AlaskaNatives, resulting in many Native languagespeakers having limited English proficiency("LEP"). Beginning in the early territorial days,official government policy established a segre­gated school system, ultimately leading to aboarding school policy that resulted in the Stateof Alaska not building high schools in ruralvillages. Native students had to travel hundredsof miles, sometimes out of state, to obtain a highschool education. At the time the VRA wasextended in 1975, only a total of 2,400 Alaska

Natives had graduated from high school. As aresult of litigation, educational opportunitiesand graduation rates have improved for AlaskaNative students. But further litigationhas revealed that the state still discriminates,providing inadequate funding to rural Alaskaschools.

Although Congress amended the VRA in 1975to remedy the discrimination faced by languageminorities in voting, there is little evidence ofcompliance with sections 4(f)(4) and 203 by theState of Alaska in the past 30 years. While voterregistration and turnout appear to be relativelyhigh in Alaska, Alaska Native turnout is difficultto discern because the State chooses not tocollect racial data.

Although there are no formal barriers toregistration such as literacy tests, there are stillbarriers. Alaska continues its practice of English­only elections, adversely impacting the ability ofAlaska Natives to exercise their right to vote.Alaska only provides registration materials printedin English and many Alaska Natives find theEnglish-only ballot language confusing. Further,Alaska has a re-registration requirement thatdisproportionately affects Alaska Natives, whoare the most mobile segment of the population.

In short, Alaska appears to have not compliedwith its obligations to provide minority languageassistance to Alaska Native voters. The stateoffers intermittent oral language assistance andno written assistance for Alaska Natives. WhileAlaska seems to provide translators upon requestin many places, this reflects a commitment tofulfill its obligations under state law to assistqualified voters needing assistance in voting.By contrast, Alaska does provide written electionmaterials for the 2 percent of the Alaskapopulation that is Filipino.

Thus, Alaska is arguably out of compliancewith the VRA and has been since the mandatewas imposed on the state 30 years ago. AsCongress contemplates reauthorization of thelanguage provisions, it should take into accountthis non-compliance and the ongoing need forsome assistance demonstrated in this report.Alaska Native voters still experience what theVRA was meant to eradicate 30 years ago.O

was reached on 16 preambular paragraphsand 22 operative articles. The areas in whichagreement was not reached include self deter­mination, and lands, territories and naturalresources. The Chair of the Working Groupdrafted compromise provisions on those issuesand submitted an entire document to theHuman Rights Commission, hoping it wouldapprove the draft before going out of business.That did not happen. The Human RightsCommission was replaced by a new entity, theHuman Rights Council (Council). It is unclearat this time how the work on the declaration willbe handled by the new Council.

The OAS process continues. The seventhnegotiation session was just held in March 2006.This session marked the completion of a roundof negotiations on the entire document. A fewprovisions have been adopted, but most progresshas been in the narrowing of issues to bediscussed on the next reading of the document.The hope is that all disputes can be resolved anda document agreed upon during the course ofthe next reading. 0

Draft Declaration on Indigenous Peoples

The Native American Rights Fund representsthe National Congress of American Indians inboth the United Nations and the Organization ofAmerican States where draft declarations on therights of Indigenous Peoples are being elaborated.These documents seek to develop internationallaws and standards to protect the rights ofindigenous peoples in the United States andthroughout the world. Native American tribesneed to be involved in these efforts, especially tolobby the United States on these issues since itis so influential in the world. While the DraftDeclarations cover a broad range of rights, ofcentral importance is solidification of the statusof indigenous peoples as "Peoples" possessinggroup rights to lands and natural resources, aswell as the right to self-determination underinternational law.

The U.N.Working Group on the draft declaration(WGDD) finished its eleventh session onFebruary 3, 2006 The WGDD, a process inwhich U.N. members and Indigenous Peoplesparticipated, worked on the fundamentalpremise that nothing is agreed until everythingis agreed. With that caveat in mind, agreement

CASE UPDATES

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private water users, owns the Project water andstorage rights.

Following a month-long trial, thousands ofexhibits and hundreds of pages in post-trialbriefs, the Administrative Law Judge (ALl)upheld the Tribes' position that BOR is the properholder of Project water and storage rights, andthat the private water users own no water rightsat all. Accordingly, their claims were denied.The opinion states that the water users holdonly contract rights to the use of Project waterand nothing more. Given the vast amount oflitigation resources poured into Case 003 by thecoalition of irrigation districts, it is likely theywill ask the ALl to reconsider the decisionor otherwise appeal the decision at theappropriate time. 0

CASE UPDATESKlamath Basin Adjudication

NARF represents the Klamath Tribes in theKlamath Basin Adjudication (KBA). The KBA is ageneral stream adjudication commenced by theState of Oregon to quantify all water rights in theKlamath River system in Southern Oregon. TheKlamath Tribes, various federal agencies andhundreds of private water users, and numerousirrigation districts filed claims. Adjudication oftheir claims in several hundred separate contestproceedings has been underway for the pastseveral years.

One of the largest, most complex contests isCase 003, which involves the water and storageclaims for the enormous Klamath IrrigationProject operated by the U.S. Bureau ofReclamation (BOR). The Project stores water inUpper Klamath Lake to irrigate about 200,000acres in Oregon and California that are served byapproximately 16 irrigation districts, includingtwo important National Wildlife Refuges. TheKlamath Tribes have an interest in the operationsof this vast Project, because Upper Klamath Lakeis also home to an important treaty fishery whichincludes several endangered species of fish. TheTribes want to be sure that the Project continuesto operate after the adjudication in accordancewith the Federal Government's legal obligationsunder the Endangered Species Act (ESA) and itsIndian trust obligations, both of which are neededto provide adequate legal protection for theendangered treaty fishery.

In Case 003, the irrigation districts filed waterand storage claims for the Project that conflictwith BOR's claims, asserting that private waterusers own all of the water and storage rights forthe Project, and BOR owns nothing at all. Thisposition, if successful, would reduce federalinvolvement in Project operations and thereforerestrict, if not eliminate, the need to comply withexisting federal ESA and tribal trust dutiesthat are currently imposed upon BOR's Projectoperations. To prevent the striping away of existinglegal protections for its fishery, the Tribes tookthe position in Case 003 that BOR, not the

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• Keweenaw Bay Indian Community• Little Traverse Bay Band of Odawa Indians

• Mashantucket Pequot• Native Village of Nunapitchuk (IRA)

• Oneida Tribe of Indians of Wisconsin• Saginaw Chippewa Indian Tribe of Michigan

• San Manuel Band of Mission Indians

• Seminole Tribe of Florida

• White Mountain Apa

of Indian Country. It is an honor to list thoseTribes and Native organizations who have chosento share their good fortunes with the NativeAmerican Rights Fund and the thousands ofIndian clients we have served. The generosity ofTribes is crucial in NARF's struggle to ensure thefuture of all Native Americans. We encourageother Tribes to become contributors andpartners with NARF in fighting for justice for ourpeople and in keeping the vision of our ancestorsalive. We thank the following tribes and Nativeorganizations for their recent support sinceOctober 1, 2005: 0

• Coeur D'Alene Tribe• Colusa Indian Casino & Bingo

• Coquille Indian Tribe• Denver Indian Family Resource Center

• Fort Mojave Tribe• Grand Traverse Band of Ottawa & Chippewa

Indains

• Hoonah Indian Association

• Hopi Tribe

CALLING TRIBES TO ACTIONIIt has been made abundantly clear that non­

Indian philanthropy can no longer sustainNARF's work. Federal funds for specific projectsare also being reduced at drastic rates. NARF isnow facing severe budget shortfalls. Our abilityto provide legal advocacy in a wide variety ofareas such as religious freedom, the SupremeCourt Project, tribal recognition, human rights,the trust funds case, tribal water rights, IndianChild Welfare Act, and on Alaska sovereigntyissues has been compromised. NARF is nowturning to the tribes to provide this crucialfunding to continue our legal advocacy on behalf

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Andrew J. Bowers, Jr., TribalCouncil Representative of theSeminole Tribe of Florida, waselected to the Native AmericanRights Fund Board of Directorsin February 2006. A member ofthe Florida Bar Association, Mr.Bowers served as AssistantPublic Defender for the 10th

and 19th Judicial Circuit in Florida from 1990until 2005. Mr. Bowers attended HaskellInstitute, Broward Community College andreceived a Bachelor of Science degree inCriminal Justice from Nova University in FortLauderdale, Florida. He received his Juris DoctorDegree in 1988 from St. Thomas UniversitySchool of Law in Miami, Florida. Mr. Bowers alsoserved as the Manager of the Seminole IndianPlaza from 1978 until 1985. The NARF Board ofDirectors and staff look forward to working withMr. Bowers.O

and Scotland. Kunani wrote an article onrepatriation, "Bone by Bone, Stone by Stone,Rebuilding the Hawaiian Nation in the Illusionof Reality" which was published in the Spring2002 Arizona State Law Journal on CulturalSovereignty: Native Rights in the 21st Centuryheld at the Arizona State University.

Kunani and artist wife Ipo, created the 'UhaneNoa Foundation and art-related programs forKanaka children and adults through grants fromthe State of Hawai'i Departments of HawaiianHome Lands (DHHL) and Health (DOH) in theircommunities and schools since 1984. He roundsout his expertise with his awareness of farming,fishing, language, video technician work, grantswriting, the arts (multi-media contemporary andtraditional visual and performing), restoration ofcultural sites, such as Pu'u 0 Mahuka andrebuilding of contemporary burial and sacredsites for na iwi kupuna (ancestors) through theOZa Na Iwi Project (Life to the bones).

The NARF Board of Directors and staff lookforward to working with Kunani Nihipali.O

New Board MembersKunani Nihipali, Native

Hawaiian, is the Vice Presidentand Director of the NativeHawaiian Advisory Council(dba Ke Kia'i) , which worksto protect traditional andcustomary practices and buildeconomic and politicalIndependence for Hawai'i.

He has served as a director with the Pu'aFoundation, which is responsible for the redressto kanaka maoli that resulted from the UnitedChurch of Christ apology for their complicity inthe "overthrow" of the sovereign nation ofHawai'i. As an elected delegate of the AhaHawai'i 'O'iwi since 1999, he asserted, "It is anopportunity to have a voice in our own process toreestablish Hawai'i as a culturally rejuvenatedSovereign Nation." From 1991 to 1993, heserved as the executive director for Hui Na'auao,a sovereignty education awareness projectgoverned by over 40 Hawaiian organizations.

Kunani served as the Po'0 (head) of HuiMaZama I Na Kupuna 0 Hawai'i Nei, a groupcaring for the ancestors ofka pae 'clina 0 Hawai'ithrough repatriation. Hui MaZama members aretrained in traditional cultural protocols relatingto the care of iwi kupuna (ancestors) and moepu(sacred burial objects). Hui MaZama hasconducted reburial ceremonies throughout theHawaiian island archipelago including theNorthwestern islands of Nihoa and MokuManamana. This sixteen-year-old organization isrecognized by two federal laws and State law,including the National Museum of the AmericanIndian Act and the Native American GravesProtection and Repatriation Act (NAGPRA), ashaving standing to repatriate iwi kupuna andmoepu from U.S. institutions and have conductedextensive repatriation and reburial effortsabroad. Based on cultural training and practice,legal standing, and national and internationalefforts, Hui MaZama has repatriated over 5,732iwi kupuna and moepu from 31 institutions inthe United States, Canada, Australia, Switzerland

has ruled that NARF is not a "private foundation" asdefined in Section 509(a) of the Internal Revenue Code.

NARF strives to protect the most important rightsof Indian people within the limit of availableresources. To achieve this goal, NARF's Board ofDirectors defined five priority areas for NARF's work:(1) the preservation of tribal existence; (2) the pro­tection of tribal natural resources; (3) the promotionof human rights; (4) the accountability of govern­ments to Native Americans; and (5) the developmentof Indian law and educating the public about Indianrights, laws, and issues. Requests for legal assistanceshould be addressed to NARF's main office at 1506Broadway, Boulder; Colorado 80302. NARF's clientsare expected to pay whatever they can toward thecosts of legal representation.

NARF's success could not have been achieved with­out the financial support that we have received fromthroughout the nation. Your participation makes abig difference in our ability to continue to meet ever­increasing needs of impoverished Indian tribes,groups and individuals. The support needed tosustain our nationwide program requires yourcontinued assistance.

Washington, D.C. Office:Native American Rights Fund, 1712 N Street, NW,Washington, D.C. 20036 (202-785-4166)(FAX 202-822 0068)

Main Office:Native American Rights Fund, 1506 Broadway,Boulder, Colorado 80302(303-447-8760) (FAX 303-443-7776)http://www.narf.org

Alaska Office:Native American Rights Fund, 420 L Street, Suite 505,Anchorage, Alaska 99501(907-276-0680) (FAX 907-276-2466)

The NARF Legal Review is published biannually by theNative American Rights Fund. Third class postage paidat Boulder, Colorado. Ray Ramirez, Editor,ramirez@narf.org. There is no charge for subscriptions,however, contributions are appreciated.

The Native American Rights Fund (NARF) wasfounded in 1970 to address the need for legalassistance on the major issues facing Indian country.The critical Indian issues of survival of the tribes andNative American people are not new, but are thesame issues of survival that have merely evolved overthe centuries. As NARF is in its thirty-sixth year ofexistence, it can be acknowledged that many of thegains achieved in Indian country over those years aredirectly attributable to the efforts and commitmentof the present and past clients and members ofNARF's Board and staff. However, no matter howmany gains have been achieved, NARF is stilladdressing the same basic issues that caused NARFto be founded originally. Since the inception of thisNation, there has been a systematic attack on tribalrights that continues to this day. For every victory, anew challenge to tribal sovereignty arises from stateand local governments, Congress, or the courts.The continuing lack of understanding, and in somecases lack of respect, for the sovereign attributesof Indian nations has made it necessary for NARF tocontinue fighting.

THE NATIVE AMERICAN RIGHTS FUND

NARF Annual Report. This is NARF's major report onits programs and activities. The Annual Report isdistributed to foundations, major contributors, certainfederal and state agencies, tribal clients, NativeAmerican organizations, and to others upon request.Ray Ramirez, Editor, ramirez@narf.org.

Tax Status. The Native American Rights Fund is a non­profit, charitable organization incorporated in 1971 underthe laws of the District of Columbia. NARF is exempt fromfederal income tax under the provisions of Section 501 C(3) of the Internal Revenue Code, and contributions toNARF are tax deductible. The Internal Revenue Service

••information is published, NILL sends out briefannouncements and a link to the newly revisedbulletin page via e-mail. Send an e-mail to DavidSelden at dselden@narf.org if you would like tosubscribe to the Indian Law Bulletin service.The service is free of charge!

Support the Library: The National Indian LawLibrary is unique in that it serves the public butis not supported by local or federal tax revenue.NILL is a project of the Native American RightsFund and relies on private contributions frompeople like you. For information on how you cansupport the library or become a sponsor of aspecial project, please contact David Selden,the Law Librarian at 303-447-8760 ordselden@narf.org. For more information aboutNILL, visit: http://www.narf.org/nill/index.htmLocal patrons can visit the library at 1522Broadway, Boulder~ Colorado. 0

Library ServicesInformation access and delivery: Library users

can access the searchable catalog whichincludes bibliographic descriptions of thelibrary holdings by going directly to:http://www.narf.orglnill/index.htm or by access­ing the catalog through the National Indian LawLibrary/Catalog link on the Native AmericanRights Fund website at www.narf.org. Oncerelevant materials are identified, library patronscan then choose to request copies or borrowmaterials through interlibrary loan for anominal fee.

Research assistance: In addition to making itscatalog and extensive collection available to thepublic, the National Indian Law Library providesreference and research assistance relating toIndian law and tribal law. The library offers freeassistance as well as cutomized research for anominal fee.

Keep up with changes in Indian law with NILL'sIndian Law Bulletins: The Indian Law Bulletinsare published by NILL in an effort keep NARF andthe public informed about Indian law develop­ments. NILL publishes timely bulletins coveringnew Indian law cases, U.S. regulatory action, lawreview articles, and news on its web site.(See: http://www.narf.org/nillibulletins/ilb.htm)New bulletins are published on a regular basis,usually every week and older information ismoved to the bulletin archive pages. When new

About the LibraryThe National Indian Law Library (NILL) located

at the Native American Rights Fund in Boulder,Colorado is a national public library serving peopleacross the United States. Over the past thirty-threeyears NILL has collected nearly 9,000 resourcematerials that relate to federal Indian and triballaw. The Library's holdings include the largestcollection of tribal codes, ordinances and constitu­tions in the United States; legal pleadings frommajor American Indian cases; law review articleson Indian law topics; handbooks; conferencematerials; and government documents.

National Indian Law LibraryYour Information Partner!

John Gonzales, Chairwoman San Ildefonso PuebloJaime Barrientoz, Vice Chairman Ottawa/Chippewa

Andrew 1. Bowers, Jr. .. Seminole Tribe of FloridaDelia Carlyle Ak Chin Indian Community

Elbridge Coochise Hopi

Billy Frank Nisqually Tribe

James Roan Gray OsageKarlene Hunter Oglala Lakota

Kunani Nihipali Native Hawaiian

Paul Ninham Wisconsin Oneida

Lydia Olympic YupikJAleutAnthony Pico Viejas Band of Kumeyaay Indians

Woody Widmark Sitka Tribe

Executive Director: John E. Echohawk Pawnee

NARF LEGAL REVIEW • VOLUME 31, NO.1 • WINTER/SPRING 2006

NARF Legal Review1506 BroadwayBoulder, CO 80302

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