agua caliente band of cahuilla indians rights to groundwater … · 2016-01-11 · introduction as...

IntroductionAs California enters yet another year of an his-

toric drought, the all-encompassing importanceof the water resource is increasingly evident. Theneed for more responsible management of theresource has finally started to sink in – federal,state, and local policymakers are finally takingaction to conserve water and to enact measuresthat protect the availability of the resource in anuncertain water future.

Groundwater is perhaps the most critical waterresource for California’s water future. In an aridclimate, surface waters are often available onlyseasonally and can be unreliable. Because of this,many big water users have opted to simply pumpgroundwater and have been doing so with little orno oversight for decades. This practice is beingcalled into question throughout the state with theCalifornia State legislature passing new legisla-tion last year that initiates a groundwater regula-tory system, but it is incremental in executionand many fear that it’s too little too late.

For years, the Agua Caliente Band of CahuillaIndians has expressed growing concern about theviability of the groundwater basin underlying itsReservation. Indeed, the Cahuilla people havelong been the stewards of this resource. TheCoachella Valley was populated by ancestralCahuilla people prior to the arrival of Spanish andthen other people. The Cahuilla people under-stood the groundwater resource and managed itsuse with knowledge gained through millennia ofexperience surviving in the arid desert. Today,the Agua Caliente continue working to protectthe viability of the groundwater resource andensure that it is managed responsibly. Indeed,

VOLUME 40, NO. 1 WINTER/SPRING 2015

NATIVE AMERICAN RIGHTS FUND

Agua Caliente Band of Cahuilla Indians rights to groundwater recognized

Agua Caliente Band of Cahuilla Indians rightsto groundwater recognized .................... page 1

Case Updates .......................................... page 5

New NARF Board Members.................. page 12

National Indian Law Library ................ page 13

Calling Tribes to Action! ...................... page 14

NARF .................................................... page 15

NARF Board .......................................... page 16

this concern and duty to protect the groundwaterresource ultimately led the Tribe to file suitagainst the two main water agencies that servethe Reservation and surrounding lands.

The Agua Caliente ReservationThe Agua Caliente is a band of Cahuilla Indians

who have made their home in the CoachellaValley since time immemorial. Indeed, today’sAgua Caliente Reservation, which encompassesover 31,000 acres in and around the city of PalmSprings, sits in the heart of lands used and occu-pied by the clans from whom today’s AguaCaliente tribal members are descended. It is theiraboriginal land, although it is but a portion oftheir aboriginal territory.

The ancestral Cahuilla people were keenlyaware of the value of water and planned nearlyevery aspect of their lifeways in utilizing theresource efficiently, paying it the respect due to itin the arid desert environment. Cahuilla villageswere usually sited in proximity to reliable watersources. Knowledge of the location of springs,where groundwater percolates to the surface, wascritical to the survival of travelers and huntingand gathering parties. Water was diverted toenhance the growth of important food sources,such as mesquite groves. And, perhaps mostnotably, walk-in groundwater wells were dug toprovide a source of water when surface waterswere not available. The ancestral Cahuilla peoplewere aware of natural indicators of the presenceof groundwater near to the surface and usedthose indicators in developing groundwaterwells. The hot spring for which the city of PalmSprings is named, called Sec-he by the Cahuilla,was and remains a spiritually significant site andis believed to have healing power. Sec-he hasbeen renowned as a valuable water resource frompre-contact times to the present day. In the earlydays of the reservation, non-Indians repeatedlyattempted to usurp the spring from Agua Calienteownership and control. Due to its persistence, theTribe retained Sec-he as part of the Agua CalienteReservation, and has been in control of how andby whom it is used for many years now.

When California became a state in 1850, thenon-Indian population was growing rapidly. The

demand for land near dependable water sourcesunderscored the need to set aside and protectarable lands for the use of the Agua Caliente andother California Indians. Treaties with theCalifornia Indians setting aside large reserva-tions, including the majority of the land encom-passed by the Agua Caliente Reservation today,were negotiated in 1851 but were never ratifiedby the United States Congress. The Indians werenot made aware of that fact until decades later.On May 15, 1876, President U.S. Grant issued anexecutive order identifying lands to be “set apartas reservations for the permanent use and occu-pancy” of the Agua Caliente. On September 29,1877, President Rutherford B. Hayes issued a second executive order that set aside additionalsections of land adjacent to the 1876 withdrawalto be “set apart as a reservation for Indian pur-poses” as reservation lands for the Agua Caliente.Additional executive orders and actions followedover the next several decades, setting aside addi-tional lands.

Water Agencies’ History of Disrespect for andAbuse of the Groundwater Resource

The Reservation overlies the Coachella Valleygroundwater basin. This water source that hassustained the Tribe since time immemorial is inoverdraft and has been for some time. In otherwords, more groundwater is used each year thanis replaced, either through natural or artificialmeans. In 2010, for example, the CoachellaValley Water District (“CVWD”), one of the twowater agencies serving the Palm Springs areaand the Reservation (the other is the DesertWater Agency, or “DWA”), and one of the largestpumpers of groundwater in the Coachella Valley,estimated the cumulative overdraft of the aquiferover the years at over 5.5 million acre-feet andan average continuing annual overdraft ofapproximately 239,000 acre-feet per year. Theseare alarming numbers and demonstrate that thecurrent pattern of use by the water agencies isnot sustainable. Overdraft also causes subsi-dence in the lands overlying the groundwateraquifer as water levels drop, often causing prop-erty damage on the lands’ surface. Subsidencehas occurred on lands immediately to the Southof the Reservation and the Tribe is concernedthat subsidence will soon impact its lands.

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In addition to the unsustainable overuse of theaquifer, CVWD began artificially recharging theaquifer with imported Colorado River water inthe 1970s in an attempt to offset the overdraft.The imported water is not treated before it isused for recharge, further compromising theaquifer. The Colorado River water has high lev-els of total dissolved solids and other nutrientsfrom upriver agricultural runoff. From therecharge site, the lower quality water movesdown-gradient directly toward the Reservation,impacting the quality of water underlying theTribe’s lands.

The LitigationOn May 14, 2013, the Agua Caliente Band of

Cahuilla Indians filed suit against CVWD andDWA and their respective individual boardmembers, in the federal district court for theCentral District of California in Riverside,California. The relief requested by the Tribe inits complaint is a declaration of the Tribe’sreserved and aboriginal water rights to ground-water to satisfy the present and future needs ofthe Tribe and its members, as well as to protectthe Tribe’s water rights from further damage bythe water agencies’ overdraft and artificialrecharge of the Coachella Valley groundwateraquifer with untreated, lower-quality importedColorado River water. The defendant wateragencies answered the complaint, denying thatthe Tribe has reserved or aboriginal rights towater, as well as asserting other defenses. Thecase was assigned to Judge Jesus Bernal, a fed-eral judge in the Eastern Division of the CentralDistrict.

Early in the case, the Tribe and the water agen-cies agreed to divide the litigation into threephases – the first phase would address whetherthe Tribe has a reserved right to groundwater andwhether the Tribe has an aboriginal right togroundwater. The second phase encompasseswhether the Tribe owns the pore space below itsreservation, which is impacted by the artificialrecharge of imported groundwater, whether theTribe is entitled to fulfillment of its groundwaterrights with water of a certain quality, what stan-dard will be used to quantify the Tribe’s rights,and whether several of the equitable defenses

asserted by the water agencies apply to this typeof claim. The third phase encompasses the actu-al quantification of the Tribe’s groundwaterrights and pore space, and possibly determine thestandard for the quality of water required to ful-fill the Tribe’s water right.

In May 2014, the United States intervened onbehalf of the Tribe, supporting the Tribe’s claimfor a reserved right to groundwater. Motions forsummary judgment were filed by all parties onOctober 21, 2014, with respect to the phase oneissues. The Tribe and the United States bothargued that federal law controls the issues of thecase and that federal law provides that the Tribehas a reserved right to enough water from anyavailable source to fulfill its present and futureneeds. The water agencies argued that Californiastate law should apply and that the Tribe and theUnited States should be limited to the same waterrights as other landowners in the CoachellaValley, contrary to a line of cases recognizing thatfederally reserved water rights of Indian tribes areprior and paramount to state law based rights andapply to groundwater resources underlying reser-vation lands.

Oral argument was held on March 16, 2015,and Judge Bernal issued his order on March 20,2015. In this ruling, the Tribe’s reserved right towater was recognized and the court ruled in theTribe’s favor that a tribal reserved right can befulfilled by groundwater. Although many courts,both federal and state, have recognized that fed-erally reserved water rights apply to groundwateras well as to surface water, this was a significantopinion as it clearly and decisively applied thedoctrine of U.S. v. Winters, an early case estab-lishing the reserved water rights of Indian tribes,to groundwater. The court declined to find thatthe Tribe retained an aboriginal right to ground-water, ruling that previous case law limiting therights of all California tribes applied to this caseas well, and that the Tribe’s aboriginal rights wereextinguished by various federal acts, includingthe establishment of the Reservation. However,the more significant ruling that the Tribe’sreserved water rights apply to groundwater was avictory for Agua Caliente.

Looking ForwardFollowing the District Court’s ruling in favor of

the Tribe’s reserved right to groundwater, thewater agencies petitioned for interlocutoryreview on that sole issue by the federal NinthCircuit Court of Appeals. The Ninth Circuitagreed to hear the appeal in an order issued onJune 10, 2015. Belying the grant of interlocuto-ry review, there are strong arguments and prece-dent consistent with Judge Bernal’s March 20thOrder, which will inform the appeals court’sanalysis. Briefing on this part of the case is cur-rently scheduled to be completed in November2016, and oral argument will likely take place inearly 2016.

Water will continue to be an increasinglyimportant resource for Indian tribes, especially inthe arid western states. The combination ofgrowing populations in the West coupled with

the effects of climate change producing shrinkingwater supplies mean an even more uncertainwater supply picture for tribes. Tribes’ ability toensure the availability of enough clean water toplan a responsible water future for themselvesand future generations will continue to be a fun-damental challenge to many tribes for decades tocome. The ability of tribal governments to workcollaboratively as partners with decision makersin neighboring communities will be vital to effec-tive planning and the efficient use of everyone’sresources. This will only be possible when theexistence of tribal rights are recognized andrespected by surrounding communities. ❂


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Andreas Canyon in the Indian Canyons.



CASE UPDATES

In December 2014 NARF prepared a legal opin-ion for the Intertribal Council of Arizona (ITCA)on its rights and possible claims under a 1988statute establishing education trust funds. InJanuary and February 2015 NARF met with ITCAto discuss NARF’s conclusions and recommenda-tions. On April 2, 2015, NARF filed on ITCA’sbehalf a breach of trust case against the UnitedStates in the U.S. Court of Federal Claims seeking$50 million in damages for mismanagement ofthe Arizona Intertribal Trust Fund (AITF). TheAITF was established by Congress in 1988 tocompensate Arizona tribes for the closure of thePhoenix Indian School which was an off-reserva-tion boarding school operated by the Bureau ofIndian Affairs since 1891. The school’s closure

allowed the Department of the Interior toexchange the land on which the school had beenlocated for privately owned lands in Florida thatwould become part of a national wildlife refuge.The Phoenix lands were more valuable than theFlorida lands and Congress approved the landexchange only if the difference in value - $35 mil-lion – went to the AITF and a trust fund for theNavajo Nation. The private owner of the Floridalands has paid some, but not all, of the $35 mil-lion, and has given the United States notice thathe will no longer make the AITF or Navajo Nationtrust fund payments. The lawsuit seeks to holdthe United States liable for the remaining pay-ments into the AITF.

NARF files suit on behalf of Intertribal Council of Arizona

A Native American student in California will beallowed to wear an eagle feather on his cap dur-ing his high school graduation ceremony afterreaching a settlement agreement with the ClovisUnified School District on June 2. ChristianTitman, a member of the Pit River Tribe, filed alawsuit and sought an injunction in state courtafter repeated requests to wear the eagle featheron his cap at graduation were denied by theschool district.

Eagle feathers are considered sacred objects inmany Native American religious traditions. Theyrepresent honesty, truth, majesty, strength,courage, wisdom, power, and freedom. ManyNative Americans believe that as eagles roam thesky, they have a special connection with God.Often, Native American graduates receive aneagle feather from an elder or their communityin recognition of educational achievements andwish to wear it during their graduation ceremonyin order to honor their tribal religion, community,achievement and traditions.

NARF represents Native American student in challenge to ban on ceremonial eagle feathers during graduation

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In an affidavit submitted to the court, IsidroGali, Vice Chairperson of the Pit River Tribes said,“[t]he gift of an eagle feather to wear at a cere-mony is a great honor given in recognition of animportant transition and has great spiritualmeaning. When given in honor of a graduationceremony, the eagle feather is also recognition ofacademic achievement and school-related suc-cess. Eagle feathers are worn with pride andrespect.”

“Although school districts across the countryrecognize the importance of wearing eagle feath-ers to Native graduates, there remains a minoritythat persists in erecting undue barriers.However, once the religious and cultural signifi-cance of wearing eagle feathers is understood byschool districts, it is easy for schools to accom-modate the practice at graduation ceremonies,”said Joel West Williams, a Staff Attorney with theNative American Rights Fund, who represented

Titman along with the American Civil LibertiesUnion of Northern California and CaliforniaIndian Legal Services.

Matthew Campbell, also a Native AmericanRights Fund Staff Attorney representing Mr.Titman said, “Importantly, this settlementrequires the school district to remain engagedafter graduation and discuss with Christian waysthat it can improve communications regardingreligious accommodations for future graduates.We are hopeful that future Native American grad-uates will not face the same obstacles.”

NARF has a long history of assisting studentswho are prohibited from wearing eagle feathers atgraduation ceremonies due to narrow graduationdress codes.

The October Term 2014 has been and continuesto be relatively quiet in relation to cert petitionsand cases involving questions of federal Indianlaw. Oral arguments have concluded without asingle Indian law case argued on the merits thisTerm. As expected, the U.S. Solicitor Generalfiled his brief in Dollar General Corporation v.Mississippi Band of Choctaw Indians on May 12,2015, and the Court has scheduled the petitionfor conference on June 04, 2015. Although theUnited States recommended that the Court denycert in the Dollar General case, since the ques-tion involves a challenge to tribal court jurisdic-tion—specifically, jurisdiction over a tort com-mitted by a non-Indian corporation—there is ahigh probability that four Justices may vote togrant review.

The Project continues to working closely withthe attorneys for the Sac and Fox Nation and thesons of Jim Thorpe to prepare a cert-worthy peti-tion and to develop an effective amicus briefstrategy in support of the petition to be filed inThorpe v. Borough of Jim Thorpe. The Projectwas successful in lining up Jeffrey Fisher, Brian

Wolfman and the Stanford Supreme Court Clinicto work as pro bono Supreme Court counsel forthe Tribe and the Thorpe sons on all facets of thecert-stage process, and is in the process of liningup pro bono Supreme Court counsel to assist on

Tribal Supreme Court Project update



a number of the amicus briefs in support. At itscore, the Jim Thorpe case is a civil rights strug-gle, and one that is fully representative of the dis-regard American culture has often showedtoward Native American customs. The facts ofthis story are compelling and play into a broadernarrative already existing in the mainstreammedia that Native Americans have been systemat-ically discriminated against throughout historyof this country – be it through derogative sportsteam names or disregard of tribal issues by stateand federal governments.

NARF, on behalf of the Project and the Sac andFox Nation, secured the services a professionalmedia firm to work with the Tribe and the Thorpesons to conduct a successful media campaignaimed at expanding public support to bring pres-sure on decision makers at the local, state andnational levels. On June 3, 2015, the cert petitionwill be filed, and we are in the process of sched-uling national and regional press events with themainstream, legal and sports media. TheSupreme Court petition will be used as a “newshook” to re-introduce to the public the Tribe’sstruggle to bring one of their own home. A nar-rative will be created, one that emphasizes that,at its core, the Jim Thorpe case is a civil rightsstruggle, and one that is fully representative ofthe disregard American culture has often showedtoward Native American customs. The facts ofthis story are compelling and play into a broadernarrative already existing in the mainstream

media that Native Americans have been systemat-ically discriminated against throughout historyof this country – be it through derogative sportsteam names or disregard of tribal issues by stateand federal governments.

On January 26, 2015 in Knight v. Thompson,the Court issued a “GVR” (petition granted, judg-ment vacated and case remanded) for furtherconsideration in light of its unanimous decisionin Holt v. Hobbs. In Holt, the Court held thatArkansas violated the Religious Land Use andInstitutionalized Persons Act (RLUIPA) where itsgrooming policy did not allow beards and itrefused to grant a religious exemption to aninmate whose Muslim religion required him towear a beard. Shortly before the Court grantedreview in Holt, a group of Native Americaninmates filed a petition in Knight v. Thompson,asking the Court to review a decision of the U.S.Court of Appeals for the Eleventh Circuit whichheld in favor of prison officials in Alabama whorefused to grant a religious exemption from theirrestrictive grooming policy to allow NativeAmericans to wear long hair consistent with theirNative religious beliefs. The Native AmericanRights Fund, representing the National Congressof American Indians and Huy filed “friend of theCourt” briefs supporting the prisoners in bothHolt and Knight.

Like Mr. Holt, the Native American prisoners inKnight are seeking relief under RLUIPA, which

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After several years of fruitful partnership, NARFnow represents NCAI on climate change matters.Climate change is one of the most challengingissues facing the world today. Its effects onindigenous peoples throughout the world areacute and will only get worse. The effects areespecially pronounced in Alaska where as manyas 184 Alaska Native villages are threatened withremoval. NARF, in addition to working withsome of its present clients on this issue, previ-ously worked with National Tribal EnvironmentalCouncil (NTEC) on comprehensive federal cli-mate change legislation. NTEC, NARF, NCAI andthe National Wildlife Federation worked togetherand created a set of Tribal Principles and detailedlegislative proposals. Unfortunately, these effortsstalled in the Senate.

NARF and NTEC attended the United NationsFramework Convention on Climate Change(UNFCCC) Summit-COP 15- in Copenhagen,Denmark in December 2009. The purpose of the

UNFCCC process is to come up with an interna-tional treaty governing emissions of greenhousegases. NARF and NTEC also attended COP 16 inCancun in December 2010. A Cancun Agreementwas reached, likely saving the UNFCCC process.The agreement contains increased, though inad-equate, mentions of indigenous peoples and ofthe U.N. Declaration on the Rights of IndigenousPeoples (UNDRIP). There are safeguards callingfor “The full and effective participation” of indige-nous peoples in Reduction of Emissions fromDeforestation and Forest Degradation (REDD+)activities and there are also some references totaking into account traditional indigenousknowledge.

At COP 17 in Durban, South Africa, November– December 2011, the countries established anew Ad Hoc Working Group for Enhanced Action(ADP). The countries committed to adopt a uni-versal legal agreement on climate change as soonas possible, but not later than 2015, to go into

International Efforts on Climate Change

requires that a substantial burden on an inmate’sreligious exercise be the least restrictive means offurthering a compelling government interest.This standard, referred to as “strict scrutiny,” isthe most stringent legal standard applied to lawsand government rules. A lack of consistent appli-cation of this rigorous standard by the lower fed-eral courts has allowed some state prison systemsto unduly restrict religious practices of NativeAmerican inmates. Nearly 80% of U.S. prisonsystems allow Native Americans to wear longhair, either through blanket policies or specialreligious exemptions. By and large, prison offi-cials have found ways to mitigate the minimalrisks associated with these practices and haveobserved numerous benefits to Native inmatebehavior and rehabilitation as a result. However,a handful of state prison systems stubbornlyrefuse to accommodate certain facets of Nativereligion, such as long hair at issue in Knight.Those prison officials have hidden behind safety,security and hygiene concerns to frustrate sin-cere religious beliefs and practices. Yet, thesesame prison officials openly admit that they did

not investigate, or even consider, the successfulaccommodation measures taken by the 80% ofprison systems allowing long hair, or exemptionsfor Native American inmates. Rather than applyRLUIPA’s strict scrutiny to the state’s argumentsand ask, “Why not Alabama?” the lower courts inKnight deemed the policies of other jurisdictionssimply irrelevant to the operation of Alabamaprisons and accorded “due deference” to theuninformed opinions and unsubstantiated claimsof prison officials.

The Holt opinion, and the Knight case onremand, should change a fundamental aspect ofhow certain prison systems deal with NativeAmericans and their religious practices. Forthose Natives who reside in the darkest corners ofU.S. penal systems, it is no longer the rule thatthey cannot engage in their traditional religiouspractices merely because their jailors say so.Courts will demand more, just as Congressintended when it enacted RLUIPA.



effect by 2020. Based on this commitment, a coreof countries, led by the European Union agreed toa second commitment period to the KyotoProtocol (KP) (to which the U.S. is not a party).In addition, the Green Climate Fund, which is tobe the major source of funding for internationalmitigation and adaptation activities was agreed toand can start receiving funding. But no progresswas made regarding an assessment of whethersafeguards for indigenous rights are being imple-mented.

At a two week session in Bonn in May 2012, thenew ADP could not even agree on the agendauntil the last day. Informal sessions were held inBangkok, Thailand in August and September,2012 to prepare for COP 18 which was held inDoha, Qatar in November and December, 2012.The outcome at Doha was generally anemic. Asecond period for the KP was approved with weakemissions reduction commitments by countriesaccounting for a modest percentage of 31 world-wide emissions. COP 18 resulted in nothing solidin the way of commitments from non-KP coun-tries, and nothing as to financial commitments todeveloping countries. These are matters for theADP in upcoming meetings. The can was kickeddown the road once again. Further, IndigenousPeoples, along with other constituencies foundtheir already limited rights to make interventions

curtailed even more, as usually only 2-3 entitieswere allowed to speak. On a brighter note, thehead of COP 18 attended an indigenous caucusmeeting and expressed support. The caucusasked in a letter that Qatar support a meetingbetween indigenous peoples and friendly statesbefore COP 19 was to be held in Warsaw, Polandin November 2013. However, no reply was everreceived.

The first meetings on the specifics of the new“protocol to be adopted by December 2015 wereheld in Bonn in April/May and June, 2013. NARFattended all of the April /May meeting and part ofthe June meeting on behalf of NCAI. NARF wasthe only one to make a brief statement on behalfof the indigenous viewpoint at the April/Maymeeting. So far, the process is very slow anddeveloped countries are spending a lot of time ongeneral concepts, but no specific language hasbeen proposed yet. In November 2013, NARFattended COP 19 in Warsaw, Poland and theresults were disappointing. Disturbingly, Polandonly authorized a small percent of NGOs toattend. One indigenous organization requested30 slots and only seven were approved. The mainaccomplishment of COP 19 was the approval of aloss and damage mechanism (though with nofinding) which would address loss due to climatechange.

On a more positive note, the IndigenousCaucus met with the organizers of COP 20 whichwas held in Lima, Peru in December 2014 andwere assured that ample attendance byIndigenous participants would be approved andthat a pre-meeting would be held betweenIndigenous representatives and friendly statesjust as had been done before COP 16 in Mexicoand COP 17 in Durban, South Africa. Finally, thecaucus also met with organizers for COP 21which is to be held in France in 2015 who gaveassurance of ample participation as well, thoughthey did not commit to a pre-meeting.

At the March 2014 meeting of the UNFCC inBonn, an open-ended consultation occurredwhere countries exchanged views on the ele-ments of the 2015 agreement. No text was pro-duced and developing countries expressed theirview that more formal negotiations that allowedfor the tabling of text were due.

In the June 2014 session, it was anticipated thatdraft text would be tabled but this did not happen,as more discussion occurred on the elements of adraft text. An additional session was held in Bonnin October 2014, in anticipation of the COP 20

meeting in Lima, Peru. The Peruvian govern-ment hosted a meeting in Lima between friendlystates and indigenous peoples just prior to COP20. We arranged for indigenous representativesto meet among ourselves to formulate the indige-nous positions and then with “friendly” countriesto explore the possibility of support from them.Among the “friendly” countries who attendedwere the United States, Canada, Bolivia, Norway,Mexico, Singapore, Tuvalu, Panama, Brasil, Peru,Costa Rica and France. These countries weregiven the indigenous position papers, and thepapers were sent to other state parties as well. Inaddition, during the negotiations we made state-ments orally and in writing, and written propos-als for text in the draft decisions.

There were three main tasks facing the partiesgoing into COP 20 in Lima, encompassed in twoworkstreams. Workstream one deals with the2015 Agreement itself, and the task was to agreeon the elements to be contained in the Agreement,with the specific language of the Agreement to benegotiated next year leading up to COP 21 whichis to be held in Paris, France in December 2015. Asubsidiary task under this workstream was thedevelopment of guidelines for the submission of


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Intended Nationally Determined Contributions(“INDCs”), countries are to submit their INDCs tothe UNFCC Secretariat.

Workstream 2 deals with enhancing pre 2020ambition. The 2015 Agreement is to go intoeffect in 2020. It is felt that action must be takenbetween now and when the Agreement goes intoeffect. Workstream 2 became associated withthat part of workstream 1 dealing with INDCs atCOP 20 in Lima in December 2014.

Work on Workstream 1 proved extremely prob-lematic. After a few sessions, the work on the ele-ments of the 2015 Agreement was halted to be takenup in 2015. No real progress toward reachingagreement on the elements rather than the docu-ments was made. The one piece of work that had tobe completed was the draft decision on the INDCsand this work was completed only after extendingthe Conference past its scheduled closing and inquite a weak document, giving states leeway todecide what commitments they will make in whatareas e.g., emissions, reductions, adaptation,finance, etc.; when they will submit their INDCs;and what information they will provide to allowassessment of the commitments made.

As to Workstream 2, the main decision was tocontinue technical expert meetings in the period2015-2020 to identify “opportunities with highmitigation potential, including those with adap-tation, health and sustainable development bene-fits[.]” It is in this area that indigenous peoplesreceived their only mention in the draft decision,which requests the Secretariat to “Provide mean-ingful and regular opportunities for the effectiveengagement of experts from Parties, relevantinternational organizations, civil society, indige-nous peoples, women, youth, academic institu-tions, the private sector, and subnational author-ities . . .” The reference to indigenous people aresomething other than civil society.

The most recent session of the ADP was held inGeneva February 8-13, 2015 during which timethe countries finished compiling a 90 page draftdocument from which they hope to distill a finalagreement at COP 21 in Paris in December 2015.The next session which is to be conducted duringthe last two weeks of June 2015 will commencethe process of whittling the draft down to a work-able size. ❂

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Kurt BlueDog has been in theactive practice of federal Indian lawfor nearly 40 years almost exclusive-ly on behalf of Indian Tribal govern-ments. Kurt was born and raised onthe Sisseton-Wahpeton Sioux IndianReservation in South Dakota. Afterhe graduated from the University ofSouth Dakota in 1972, he served as aCommissioned Officer in the Armyparatroopers. He graduated from

the University of Minnesota School of Law in 1977 and isa member of the State Bars of Minnesota and Wisconsin,several Tribal Courts, the United States Supreme Courtand numerous Federal District and Appellate Courts.

Early on in his legal career, Kurt worked for the NativeAmerican Rights Fund (NARF) in Boulder, Colorado as aStaff Attorney for approximately seven years. His experi-ence at NARF involved extensive litigation experience inthe areas of Indian education, economic development,tribal sovereignty, American Indian religious freedom,land rights, tribal recognition, corrections and housing.Currently in his private practice, he is involved in litiga-tion, administrative and legislative activity representingtribal concerns. The emphasis of his practice has been inthe area of tribal commercial law, corporate law, gaming,and economic development. He has represented many

tribes over the years, to include service as GeneralCounsel to the Shakopee Mdewakanton Sioux Communityand the Sisseton-Wahpeton Sioux Tribe (his Tribe) forover twenty years.

Kurt has served as an adjunct professor teaching feder-al Indian law at William Mitchell College of Law and theHamline University School of Law in St. Paul, Minnesota.Additionally, he has served as the Chief Judge for the Fonddu Lac Chippewa Tribal Court for 10 years and the PrairieIsland Sioux Tribal Court for 11 years. For the past 15years he has served part-time as the Chief Judge for theLower Sioux Indian Community.

In addition to his legal work, Kurt has served on numer-ous Boards and is currently serving on the MinnesotaHistorical Society Executive Board. He has served on theExecutive Committee at the National Indian GamingAssociation (NIGA) for over twenty years. He was recent-ly named the Best Lawyer in the field of Native Americanlaw for the Minneapolis area. For the past fifteen yearsKurt has been rated “AV Preeminent,” the highest possiblepeer review rating in legal ability and ethical standards bythe Martindale-Hubbell Law Directory.

The NARF Board of Directors and staff welcome Kurt tothe Native American Rights Fund and look forward toserving with him.

NEW NARF BOARD MEMBERS

Ch’aa Yaa Eesh (RichardPeterson) is Tlingit from theKaagwaantaan Clan. Richardgrew up in Kasaan, Alaska and is alife-long Alaska Native resident ofSoutheast Alaska. Prior to beingelected as President of the CentralCouncil of the Tlingit and Haida

Indian Tribes of Alaska (Central Council), Richard servedas CEO of Prince of Wales Tribal Enterprise Consortium,LLC (POWTEC), President of the Organized Village ofKasaan (OVK), Mayor/City Council member for the City ofKasaan, and member of the Southeast Island SchoolDistrict Board of Education. He has been a delegate to theCentral Council of Tlingit and Haida since 2000.

During his tenure with OVK, Richard fostered growththrough innovative program and economic development,developing competent and reputable grant and fiscal man-agement procedures. OVK’s annual budget increasedfrom $13,000 to over $4 million dollars through wide-spread program development and a strategic pursuit ofgrant funding.

Richard has developed the skills necessary to effectivelyrepresent and communicate the needs of his Native peopleof Southeast Alaska. He is adept at negotiating and teambuilding and has worked to continually build lasting relationships that prove to be mutually beneficial to allstakeholders. Richard believes in a proactive approach toachieve win-win scenarios and continues to shape thefuture of the economic and social well-being of tribal citizens through collaborative efforts and local economicdevelopment initiatives.

Richard has also served as 4th Vice President, CentralCouncil Tlingit & Haida; 1st Vice President, CentralCouncil Tlingit & Haida; Board Member of RuralCAP; 3rdVice President, Central Council Tlingit & Haida; and,Board Member, Gulf of Alaska Coastal CommunitiesCoalition. He also served as Director of EconomicDevelopment, Organized Village of Kasaan, and TribalAdministrator, Organized Village of Kasaan.

The NARF Board of Directors and staff welcome Richardto the Native American Rights Fund and look forward toserving with him.



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Advance Justice through Knowledge! Supportthe National Indian Law Library!

You probably are familiar with the great workNARF does in court rooms and the halls ofCongress relating to tribal recognition, treatyenforcement, trust fund settlements, repatriation,and more. Did you know that NARF also is the go-to resource for legal research in Indian law?

Historically, Indian people and advocatesfighting for indigenous rights have found them-selves limited by their ability to access relevantfederal, state, and tribal Indian law resources. Indirect response to this challenge, the NationalIndian Law Library (NILL) was established overforty years ago as a core part of the NativeAmerican Rights Fund (NARF). Today thelibrary continues to serve as an essentialresource for those working to advance NativeAmerican justice. As the only public librarydevoted to Indian law, we supply much-neededaccess to Indian law research, news updates, andtribal law documents. To extend the tradition offree public access to these services we ask foryour financial support.

Each year, NILL responds to more than 2,000individual research requests and receives sever-al hundred thousand visits to its onlineresources. Whether it’s through updates to theICWA Info Blog or additions to the extensivetribal law collection, NILL is committed to pro-viding visitors with resources that are not avail-able anywhere else! Additionally, our IndianLaw Bulletins and news blog deliver timelyupdates about developments in Indian law andensure that you have the information you needto fight for indigenous rights. However, we arenot resting on our laurels; we are constantlyimproving our online resources and access to

tribal law materials. With your support, in thecoming year, we plan to publish more tribal lawand an innovative and a valuable audio directoryproviding the correct pronunciation for all 566federally recognized tribal nations.

The bulletins, research resources, extensivecatalog, and personal one-on-one librarian assis-tance can only exist with your help. TheNational Indian Law Library operates on anannual budget of $240,000—primarily from thedonations of concerned and motivated individu-als, firms, businesses, and tribes who recognizeNARF and NILL as indispensable resources forNative American justice.

By donating, you stand with the NationalIndian Law Library in its effort to fight injusticethrough access to knowledge. You help ensurethat the library continues to supply free accessto Indian law resources and that it has the finan-cial means necessary to pursue innovative andgroundbreaking projects to serve you better.Please visit www.narf.org/nill/donate now formore information on how you can support thismission. ❂

Research Support for the Public!

NARF LEGAL REVIEW

NATI

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FUND

• Agua Caliente Band of Cahuilla Indians

• Alatna Village Council

• Chickasaw Nation

• Comanche Nation of Oklahoma

• Nome Eskimo Community

• Lac Du Flambeau Band of LakeSuperior Chippewa Indians

• Mohegan Sun

• National Indian GamingAssociation

• Sac & Fox Nation

• San Manuel Band of Mission Indians

• San Pasqual Band of Mission Indians

• Seminole Tribe of Florida

• Seven CedarsCasino/Jamestown S’Klallam

• Tanana Chiefs Conference

• Twenty-Nine Palms Band of Mission Indians

• Wildhorse Foundation/Umatilla

• Yavapai-Prescott Indian Tribe

• Yoche Dehe Wintun Nation

It has been made abundantly clear that non-Indian philanthropy can no longer sustainNARF’s work. Federal funds for specific projectshave also been reduced. Our ability to providelegal advocacy in a wide variety of areas such asreligious freedom, the Tribal Supreme CourtProject, tribal recognition, human rights, trustresponsibility, tribal water rights, Indian ChildWelfare Act, and on Alaska tribal sovereigntyissues has been compromised. NARF is nowturning to the tribes to provide this crucialfunding to continue our legal advocacy onbehalf of Indian Country. It is an honor to listthose Tribes and Native organizations who havechosen to share their good fortunes with the

Native American Rights Fund and the thousandsof Indian clients we have served.

The generosity of tribes is crucial in NARF’sstruggle to ensure the freedoms and rights of allNative Americans. Contributions from thesetribes should be an example for every NativeAmerican Tribe and organization. We encourageother Tribes to become contributors and part-ners with NARF in fighting for justice for ourpeople and in keeping the vision of our ances-tors alive. We thank the following tribes andNative organizations for their generous supportof NARF for our 2015 fiscal year – October 1,2014 to September 30, 2015:

CALLING TRIBES TO ACTION



THE NATIVE AMERICAN RIGHTS FUND

NARF Annual Report: This is NARF's major report on its programs andactivities. The Annual Report is distributed to foundations, major con-tributors, certain federal and state agencies, tribal clients, NativeAmerican organizations, and to others upon request. Ray RamirezEditor, [email protected].

The NARF Legal Review is published biannually by the Native AmericanRights Fund. Third class postage paid at Boulder, Colorado. RayRamirez, Editor, [email protected]. There is no charge for subscrip-tions, however, contributions are appreciated.

Tax Status: The Native American Rights Fund is a nonprofit, charitableorganization incorporated in 1971 under the laws of the District ofColumbia. NARF is exempt from federal income tax under the provi-sions of Section 501 C (3) of the Internal Revenue Code, and contribu-tions to NARF are tax deductible. The Internal Revenue Service has

ruled that NARF is not a “private foundation” as defined in Section509(a) of the Internal Revenue Code.

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

Washington, D.C. Office: Native American Rights Fund, 1514 P Street,NW (Rear) Suite D, Washington, D.C. 20005 (202-785-4166) (FAX 202-822-0068).

Alaska Office: Native American Rights Fund, 745 W. 4th Avenue, Suite502, Anchorage, Alaska 99501 (907-276-0680) (FAX 907-276-2466).

Workplace Campaigns: NARF is a member of America’s Charities, anational workplace giving federation. Giving through your workplace isas easy as checking off NARF’s box, #10350 on the Combined FederalCampaign (CFC) pledge form authorizing automatic payroll deduction.

The Native American Rights Fund (NARF) is the oldest andlargest nonprofit national Indian rights organization in the coun-try devoting all its efforts to defending and promoting the legalrights of Indian people on issues essential to their tribal sover-eignty, their natural resources and their human rights. NARFbelieves in empowering individuals and communities whoserights, economic self-sufficiency, and political participation havebeen systematically or systemically eroded or undermined.

Native Americans have been subjugated and dominated.Having been stripped of their land, resources and dignity, tribestoday are controlled by a myriad of federal treaties, statutes, andcase law. Yet it is within these laws that Native Americans placetheir hope and faith for justice and the protection of their way oflife. With NARF’s help, Native people can go on to provide leader-ship in their communities and serve as catalysts for just policiesand practices towards Native peoples nationwide. From a histori-cal standpoint Native Americans have, for numerous reasons,been targets of discriminatory practices.

Since its inception in 1970, NARF has represented over 250Tribes in 31 states in such areas as tribal jurisdiction and recog-nition, land claims, hunting and fishing rights, the protection ofIndian religious freedom, and many others. In addition to thegreat strides NARF has made in achieving justice on behalf ofNative American people, perhaps NARF’s greatest distinguishingattribute has been its ability to bring excellent, highly ethicallegal representation to dispossessed tribes. NARF has been suc-cessful in representing Indian tribes and individuals in cases thathave encompassed every area and issue in the field of Indian law.The accomplishments and growth of NARF over the years con-firmed the great need for Indian legal representation on a nation-al basis. This legal advocacy on behalf of Native Americans con-tinues to play a vital role in the survival of tribes and their way oflife. NARF strives to protect the most important rights of Indianpeople within the limit of available resources.

One of the initial responsibilities of NARF’s first Board ofDirectors was to develop priorities that would guide the NativeAmerican Rights Fund in its mission to preserve and enforce thelegal rights of Native Americans. The Committee developed fivepriorities that continue to lead NARF today:

• Preservation of tribal existence• Protection of tribal natural resources• Promotion of Native American human rights• Accountability of governments to Native Americans• Development of Indian law and educating the public about

Indian rights, laws, and issues

Under the priority of the preservation of tribal existence, NARFworks to construct the foundations that are necessary to empow-er tribes so that they can continue to live according to theirNative traditions, to enforce their treaty rights, to insure theirindependence on reservations and to protect their sovereignty.

Throughout the process of European conquest and coloniza-tion of North America, Indian tribes experienced a steady dimin-ishment of their land base to a mere 2.3 percent of its originalsize. Currently, there are approximately 55 million acres ofIndian-controlled land in the continental United States and about44 million acres of Native-owned land in Alaska. An adequateland base and control over natural resources are central compo-nents of economic self-sufficiency and self-determination, and assuch, are vital to the very existence of tribes. Thus, much ofNARF’s work involves the protection of tribal natural resources.

Although basic human rights are considered a universal andinalienable entitlement, Native Americans face an ongoing threatof having their rights undermined by the United States govern-ment, states, and others who seek to limit these rights. Under thepriority of the promotion of human rights, NARF strives toenforce and strengthen laws which are designed to protect therights of Native Americans to practice their traditional religion,to use their own language, and to enjoy their culture.

Contained within the unique trust relationship between theUnited States and Indian nations is the inherent duty for all lev-els of government to recognize and responsibly enforce the manylaws and regulations applicable to Indian peoples. Because suchlaws impact virtually every aspect of tribal life, NARF maintainsits involvement in the legal matters pertaining to accountabilityof governments to Native Americans.

The coordinated development of Indian law and educating thepublic about Indian rights, laws, and issues is essential for thecontinued protection of Indian rights. This primarily involvesestablishing favorable court precedents, distributing informationand law materials, encouraging and fostering Indian legal educa-tion, and forming alliances with Indian law practitioners andother Indian organizations.

Requests for legal assistance should be addressed to theLitigation Management Committee at NARF's main office, 1506Broadway, Boulder, Colorado 80302. NARF’s clients are expected topay whatever they can toward the costs of legal representation. ❂

NATIVE AMERICAN RIGHTS FUND BOARD OF DIRECTORSMoses Haia, Chairman .............................................................................................. Native Hawaiian

Mark Macarro, Vice-Chairman .................................................. Pechanga Band of Luiseño Indians

Kurt BlueDog ...................................... Sisseton-Wahpeton Oyate of the Lake Traverse Reservation

Virginia Cross ........................................................................................................ Muckleshoot Tribe

Tex G. Hall ........................................................................................................ Three Affiliated Tribes

Gary Hayes ………………………………………………………………. Ute Mountain Ute Tribe

Julie Roberts-Hyslop …………………………………………………… Native Village of Tanana

Stephen Lewis ……………………………………………………... Gila River Indian Community

Robert McGhee .................................................................................... Poarch Band of Creek Indians

Larry N. Olinger .................................................................. Aqua Caliente Band of Cahuilla Indians

Richard Peterson .................................................................................. Tlingit & Haida Indian Tribes

Peter Pino ………………………………………………………………………………. Zia Pueblo

Michael Smith ........................................................................................................ Chickasaw Nation

Executive Director: John E. Echohawk .................................................................................. Pawnee

NARF LEGAL REVIEW • VOLUME 40, NO. 1 • WINTER/SPRING 2015

Native American Rights Fund1506 BroadwayBoulder, CO 80302

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