a 40 year legacy in indian law - native american rights … · the inherent sovereign powers ......

Native American Rights Fund Honors the Pastwith a Focus on the Future

The Native American Rights Fund’s (NARF)40th Anniversary event was held on October 29,2010, and was hosted by the Chickasaw Nation ofOklahoma at theirWinStar World Hotel andCasino in Thackerville,Oklahoma. The celebra-tion not only reflectedthe past accomplish-ments of NARF, butalso focused on NARF’spath forward.

Among the eventhighlights, NARF hon-ored 40 clients, boardmembers, staff mem-bers and funders whosignificantly contributedto NARF’s success overthe last four decades.The event brought together some of the mosttransformative figures in Native Americanrights.

“Sink your teeth in like a wolverine and never,ever let go until you see victory,” said Elouise

Cobell, a NARF former client and honoree at the40th Anniversary event. “NARF represents thatfortitude when it comes to fighting for Indianpeople and Indian causes.” Cobell is recognizedfor the groundbreaking Cobell v. Salazar case,

which challenges fed-eral mismanagement oftrust accounts belong-ing to 300,000 NativeAmericans. Cobell is amember of the BlackfeetTribe from Montana.NARF now represents42 tribes in litigationagainst the federal government seekingaccountings for tribaltrust accounts.

Ada Deer, also a for-mer NARF client andhonoree, was appointedAssistant Secretary of

the Interior by former President Bill Clinton andled the Bureau of Indian Affairs for four years. Amember of the Menominee Tribe, Deer was a keyfigure in bringing the Termination Era to anend. “NARF is needed today as much as it was

VOLUME 35, NO. 2 SUMMER/FALL 2010

A 40 year legacy in Indian law .......................... page 1

CASE UPDATES

- Shinnecock Nation’s federal acknowledgment finallyrealized .................................................................... page 11

- Kaltag Tribe’s ICWA case now final.................. page 11

- Pamunkey Indian Tribe Files for FederalAcknowledgment .......................................... page 12

- Tribal Supreme Court Project Update .......... page 14

New Board Members ............................................ page 15

National Indian Law Library ............................ page 17

CALLING TRIBES TO ACTION! ...................... page 18

NARF ................................................................ page 19

A 40 year legacy in Indian law

NATIVE AMERICAN RIGHTS FUND

John E. Echohawk Executive Director

40 years ago because the battles continue,” said Deer.Other notable honorees included:• Walter Echohawk, a leading voice in the

Native American Graves Protection andRepatriation Act, was a long-time attorney forNARF. Echohawk was co-director of NARF’sAmerican Indian Religious Freedom Projectand director of the Indian Corrections Project.

• Katie John took a stand on behalf of AlaskaNative subsistence fishing rights. With thehelp of NARF, John was successful in protect-ing her basic right to subsistence fish in theState of Alaska.

• The Fort McDowell Indian Community, a tribeof Yavapai Indians, was subject to severelyrestricted water rights. Working with NARF,the Fort McDowell Indian Community wassuccessful in a complete restructuring of theirwater rights. The outcome of the litigationyielded $25 million for development on theReservation; $13 million in loan funds to putthe water rights to use; and a permanent ease-ment to ensure access to diversion works.

• The Ford Foundation has funded NARF everyyear for the last 40 years. A Ford Foundationgrant totaling $155,000 launched NARFnationwide in 1970.

• A veteran in Indian law, Arlinda Locklear wasthe first American Indian woman to argue acase before the U.S. Supreme Court. She represented the Oneida Indian Nation ofWisconsin in a land claim litigation, fromwhich similar cases are based.

“As leaders and advocates in American Indianand Alaska Native rights, it is important toreflect on just how far we have come,” said JohnEchohawk, Executive Director of NARF. “Wehave conquered challenges and obtained goalsthat were only dreams just 40 years ago.”

Event organizers concluded the celebrationwith a re-commitment to the NARF mission –preservation of tribal existence; protection oftribal natural resources; promotion of NativeAmerican human rights; accountability of

governments to Native Americans; and develop-ment of Indian law and educating the publicabout Indian rights, laws, and issues.

“I believe in NARF because of the grassroots itslegacy built on men and women warrior energy.In spite of the tremendous progress and successthere remains so many challenges in IndianCountry,” said Chairman of the National IndianGaming Association, Ernie Stevens, Jr. “We astribes need to help NARF continue its good workwith moral and financial support.” Stevens is aformer NARF board member and serves on itsNational Support Committee.

“NARF was in our 32 1/2-year battle to becomea federally recognized tribe for the long haul –and they held true to their word to stand behindour federal recognition. For that, I have theutmost respect and thanks for NARF’s phenom-

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NARF attorney Natalie Landreth, former NARF attorneyCharles Wilkenson, NARF attorney Steve Moore.

Former Board member Eddie Tullis and ChickasawNation Lieutenant Governor Governor Jefferson Keel.

NARF LEGAL REVIEW PAGE 3


enal work,” said Gordell Wright, a NARF clientand member of the Shinnecock Nation Board ofTrustees.

Native American environmental leader, BillyFrank, Jr., also supports the future direction ofNARF. “I know and believe in NARF’s early war-riors and modern day warriors – today’s Indianattorneys,” said Frank, a member of theNisqually Tribe and important figure in NativeAmerican fishing rights. “It was medicine for meto be here to celebrate NARF’s 40 years.” Frankis a former NARF board member.

Among its “Modern Day Warriors,” is NARFAttorney Amy Bowers, a member of the YurokTribe of Northern California. “The reason Iwanted to work for NARF is because I get topractice law with Indian people for Indian people. Whether it be treaty rights, natural

resources or tribal recognition, I will always getto work for Indian tribes.”

NARF concluded its 40th Anniversary activitieswith an Appreciation Pow-Wow on November13, 2010, to thank the Denver/Boulder areacommunity for 40 years of support.

A reflection on achievements in NativeAmerican rights as “Modern Day Warriors”

The Native American Rights Fund is the oldestand largest nonprofit national Indian rightsorganization in the country devoting all itsefforts to defending and promoting the legalrights of Indian people on issues essential totheir tribal sovereignty, their natural resourcesand their human rights. NARF believes inempowering individuals and communitieswhose rights, economic self-sufficiency andpolitical participation have been systematicallyeroded or undermined.

At its inception in 1970, NARF believed thatthe best hope for Indian survival and develop-ment rests with the maintenance of the tribe asan institution. The inherent sovereign powersof a tribe to hold land, to govern tribal membersand to command the respect of other units ofgovernment are essential to an Indian nationconcept. Throughout its history, NARF has heldfast to this hope and through its work hasinsured that this concept has become a reality.

At any given time, NARF works on approxi-mately fifty ongoing cases and/or projects repre-senting tribes, Native villages and organizations.The volume and importance of the cases onNARF's docket illustrate the continuing needand demand for NARF’s services.

For the past 40 years, NARF has representedover 250 Tribes in 31 states in such areas as tribal restoration and recognition, tribal juris-diction, land claims, hunting and fishing rights,the protection of Indian religious freedom, andmany others. In addition to the great stridesmade in achieving justice on behalf of NativeAmerican people, perhaps NARF’s greatest distinguishing attribute has been its availabilityto bring excellent, highly ethical legal represen-

NARF attorney Heather Kendall-Miller.

Former NARF attorneys Keith Harper, former Boardmember Billy Frank, former NARF attorney Bob Anderson.

tation to dispossessed Tribes. The survival andstrengthened sovereignty of the nation’s 565federally recognized tribes of 2.5 million NativeAmericans are due, in no small measure, to thebattles waged and won by NARF.

NARF has a governing board composed ofNative American leaders from across the country– wise and distinguished people who are respectedby Native Americans nationwide. IndividualBoard members are chosen based on theirinvolvement and knowledge of Indian issues andaffairs, as well as their tribal affiliation, toensure a comprehensive geographical represen-tation. The NARF Board of Directors, whosemembers serve a maximum of six years, provideNARF with leadership and credibility, and thevision of its members is essential to NARF’seffectiveness in representing its NativeAmerican clients.

As established by NARF’s first Board of

Directors, the priorities that guide NARF in itsmission to preserve and enforce the status oftribes as sovereign, self-governing bodies stillcontinue to lead NARF today: (1) the preserva-tion of tribal existence; (2) the protection of tribal natural resources; (3) the promotion ofhuman rights; (4) the accountability of govern-ments to Native Americans; and (5) the develop-ment of Indian law and educating the publicabout Indian rights, laws, and issues.

NARF works to empower tribes so that theycan continue to live according to their Nativetraditions; to enforce their treaty rights; toinsure their independence on reservations; andto protect their sovereignty. In 1971, NARF firststarted working with the Menominee Tribe ofWisconsin to restore them as a federally recog-nized tribe which culminated in the MenomineeRestoration Act in 1973. Since that time, NARFhas assisted the Siletz Tribe of Oregon, the Gay


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NARF’S 40th Anniversary Appreciation Powwow



Head Wampanoag Tribe of Massachusetts, theKickapoo Tribe of Texas, Alabama-Coushatta,and Ysleta Tribes of Texas, the Pascua YaquiTribe of Arizona, the Tunica-Biloxi Tribe ofLouisiana, the Poarch Creek Tribe of Alabama,the Narragansett Tribe of Rhode Island, theMashpee Wampanoag Tribe in Massachusettsand the Shinnecock Indian Nation of New York,in establishing their government-to-govern-ment relationship with the United States. In1993, NARF also assisted in the federal recogni-tion of 229 Alaska Native villages to insure thatthey would have the same tribal status as thosetribes in the contiguous 48 states. NARF is currently working with the Little Shell Tribe of Chippewa Indians in Montana, and thePamunkey Tribe of Virginia in establishing theirgovernment-to-government status.

The land base and natural resources of Indiannations continue to be critical factors in the

preservation of tribal existence. Through control over tribal lands and resources, Indiantribes can regain a degree of economic self-sufficiency necessary for Indian self-determina-tion. NARF assisted the Passamaquoddy Tribe,the Penobscot Nation and the Maliseet Indiansin the return of 300,000 acres of land. NARFalso assisted the Narragansett Tribe, theGayhead Wampanoag Tribe, the Catawba Tribeof South Carolina, the Swinomish Tribe, theAlabama-Coushatta Tribe in Texas, and thePotawatomi Nation in Canada with the returnand/or compensation of their traditional lands.

Water is one of the most crucial Indianresources in the western states. NARF hashelped secure water rights to the TohonoO`odham in Arizona, the Muckleshoot Tribe inWashington, the Southern Ute Tribe inColorado, San Luis Rey Water Authority inCalifornia, the Pyramid Lake Paitue Tribe in


Nevada, the Fort McDowell Yavapai Tribe inArizona, the Northern Cheyenne Tribe inMontana, Rocky Boy’s Chippewa Cree inMontana, and the Nez Perce Tribe in Idaho.NARF also currently represents the KlamathTribes in Oregon and the Kickapoo Tribe inKansas in active water rights litigation and theTule River Indian Tribe of California in watersettlement negotiations with federal, state andlocal stakeholders.

The subsistence way of life is essential for thephysical and cultural survival of Alaska Natives.In what is known as the Katie John case, NARFbrought suit on behalf of two Native Eldersfrom the Native Villages of Menasta and DotLake in federal court in 1990 alleging that the 1980 Alaska National Interest LandsConservation Act (ANILCA) requires the federalgovernment to manage subsistence fisheries forrural Alaskans in navigable waters of Alaska. In2001 the Ninth Circuit Court of Appeals issuedan opinion in favor of protecting Alaska Nativesubsistence rights. Katie John, more than anyother subsistence case that had been pendingbefore state or federal courts in Alaska, exempli-fies the contentious battle being waged betweenfederal, tribal and state interests about jurisdic-tion over Native fishing rights. NARF has beenat the forefront of this battle for 26 years now.

Because religion is the foundation that holdsNative communities and cultures together, religious freedom is a NARF priority issue. As aresult, NARF has utilized its resources to protectFirst Amendment rights of Native American religious leaders, prisoners, and members of theNative American Church, and to assert tribalrights to repatriate burial remains. Since NativeAmerican religious freedom affects basic culturalsurvival of Indian tribes, NARF believes thatAmerican law and social policy must provideadequate legal protection.

NARF was a leading proponent of the NativeAmerican Graves Protection and RepatriationAct (NAGPRA) which was signed into law in1990. The Act requires federal agencies and private museums that receive federal funding to

inventory their collections of Native Americanhuman remains and funerary objects, notify thetribe of origin, and return the ancestral remainsand funerary objects upon request to the tribe.It makes clear that Indian tribes have ownershipof human remains and cultural items which areexcavated or discovered on federal or tribal landand that they alone have the right to determinedisposition of Indian human remains and cultural remains discovered in these areas.

NARF works to hold all levels of governmentaccountable for the proper enforcement of themany laws and regulations which govern thelives of Indian people. NARF was co-counsel forthe Cobell plaintiffs in Cobell, et al. v. Salazarwhen the case was originally filed in 1996 andparticipated in the case until 2006 when itundertook the filing of a similar case for Indian


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NARF attorneys Erin Dougherty and Don Wharton.

NARF attorney David Gover.



tribes over federal mismanagement of tribaltrust fund accounts, Nez Perce Tribe, et al. v.Salazar. NARF now represents forty-two tribesin this litigation.

NARF is in the start up phase of a new project,tentatively called the “Many Paths to PeaceProject.” The mission of the “Many Paths toPeace Project” is to promote and support Nativepeople in restoring sustainable peacemakingpractices. This project provides NARF with anopportunity to support traditional peacemakingand community-building practices as an exten-sion of Indian law and sovereign rights.

Peacemaking is a community-directed processto develop consensus on a conflict resolutionplan that addresses the concerns of all interestedparties. The peacemaking process uses tradi-tional rituals such as the group circle, and

traditional peacemaker such as from a traditionalClan, to involve the parties to a conflict, theirsupporters, and other elders and interestedcommunity members. Within the circle, peoplecan speak from the heart in a shared search forunderstanding of the conflict, and togetheridentify the steps necessary to assist in healingall affected parties and prevent future occur-rences and conflicts. NARF began program rollout in calendar year 2010 with support of theMany Paths to Peace Advisory Committee, consisting of peacemaking experts and practi-tioners. NARF will focus its initial efforts on thecreation of a clearinghouse, conducting needsassessment of peacemaker resources, and developing a sustainable business model for theprogram.

The National Indian Law Library (NILL) is theonly law library in the United States devoted toIndian law. The library serves both NARF andmembers of the public. Since it was started as aNARF project in 1972, NILL has collected nearly9,000 resource materials that relate to federalIndian and tribal law. The Library’s holdingsinclude the largest collection of tribal codes,ordinances, and constitutions; legal pleadingsfrom major Indian cases; and often hard to findreports and historical legal information. In addition to making its catalog and extensive collection available to the public, NILL providesreference and research assistance relating toIndian law and tribal law, and its professionalstaff answers close to 2,000 questions each year.In addition, the Library has created and main-tains a huge web site that provides access tothousands of full-text sources to help theresearcher.

The birth of modern day Indian lawModern Indian law and policy began to come

to life in the late 1950s and early 1960s when aconsensus was reached among tribal leaders,young Indian professionals, and traditionalists.They were tied by an indelible reverence for theaboriginal past, an educated appreciation of theaccelerating consequences of five centuries of


contact with Europeans,and desperation con-cerning the future ofIndian societies as dis-crete units within thelarger society.

The termination policy– Congress’ forced dis-memberment ofAmerican Indian tribesin the 1950s – had to beslowed, halted, and thenreversed. In a largersense, the most persis-tent evolution of federalIndian policy since themid-19th Century –assimilation of Indians,reduction of the Indianland and resource base,and the phasing out oftribal governments –had to be stilled. Evenmore broadly, the tribeshad to cease reacting tofederal policy. The tribes had to grasp the initiative.

The Indian initiatives would be premised ontribalism. Chief Justice John Marshall’s oldopinion, Worcester v. Georgia (U.S. SupremeCourt 1832), had carved out a special, separateconstitutional status for Indian tribes. Withintheir boundaries, tribes had jurisdiction – gov-ernmental and judicial power – and the statescould not intrude. Indian tribes were sovereigns.Those doctrines left the tribes with the potentialof substantial control over their resources,economies, disputes, families, and values – overtheir societies.

To outsiders, it has always been astonishingthat reservation Indians would know of conceptslike sovereignty and jurisdiction. But they dotoday, and they did in the 1950s and 1960s. Onreflection, the reason for this is simple. Thechiefs bargained for those things when treatieswere made. Chief Justice Marshall was true to

those negotiations. For generation after genera-tion, elders passed down information about thetalks at treaty time and about the fact thatAmerican law, at least in Marshall’s time, hadbeen faithful to those talks.

It was not through choice that modern Indianpeople have placed so much reliance on federallaw, as made by Congress and the courts. Theywould rather build things internally. But therewas no alternative. Outside forces were bent onobtaining Indian land, water, fish and tax revenues, and on assimilating the culture out ofIndian people, especially the children. Therecould be no internal development or harmonyuntil the outside forces were put at rest.

Today, we are able to see that the program conceived at the end of the termination era wassuccessful in many ways. However, in this newcentury, the forces of termination and the challenges to tribal sovereignty have once againreared their heads. For every victory, a new


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Former Board member Lionel Bordeaux.



challenge to tribal sovereignty arises from stateand local governments, Congress, or the courts.The continuing lack of understanding, and insome cases lack of respect, for the sovereignattributes of Indian nations has made it neces-sary for the struggle to continue.

The founding of the Native American Rights Fund

In the 1960s the United States governmentadopted new policies and programs in a wide-spread effort to address some of the social illsaffecting the country. As part of the “War onPoverty,” the Office of Economic Opportunitylaunched government-funded legal services pro-grams throughout the nation to provide legalrepresentation to the disadvantaged. Those pro-grams which were set up on or near Indianreservations and large Indian communitiescame to realize that the legal problems of theirIndian clients were, for the most part, governed

and controlled by a little known area of law –“Indian Law” – that was driven by treaties, courtdecisions, federal statutes, regulations andadministrative rulings. They also found that fewattorneys outside of the legal services systemwere willing to represent Indians, and those whodid generally worked on a contingency basis,only handling cases with anticipated monetarysettlements. Very few cases were handled on acontingency basis, meaning many issues wouldnot get to court.

During this same period the Ford Foundation,which had already assisted in the developmentof the NAACP Legal Defense Fund and theMexican American Legal Defense Fund, beganmeeting with California Indian Legal Services(CILS) to discuss the possibility of creating asimilar project dedicated to serving all of thenation’s indigenous people. CILS had alreadyestablished somewhat of a reputation for takingon Indian legal cases. As a result of those

NARF 40th Anniversary Honorees.

meetings, the Ford Foundation awarded CILS aplanning grant in 1970 and start-up funding tolaunch the Native American Rights Fund in 1971.

As a pilot project of CILS in 1970, NARF attor-neys traveled throughout the country to find outfirsthand from the Indian communities what thelegal issues were. They also began a search for apermanent location for the project, which wasinitially being housed at CILS’s main office inBerkeley, California. The site needed to be centrally located and not associated with anytribe. In 1971, NARF selected its new home andrelocated to Boulder, Colorado.

An eleven member all-Indian SteeringCommittee (now a 13 member Board ofDirectors) was selected by the CILS Board ofTrustees to govern the Fund’s activities.Individuals were chosen (as they continue to betoday) based on their involvement and knowl-edge of Indian affairs and issues, as well as theirtribal affiliation, to ensure a comprehensive geo-graphical representation.

NARF continued to grow at a rapid pace overthe next several years. In 1971, the projectincorporated in the District of Columbia andopened its first regional office in Washington,D.C. An office close to the center of governmentwould prove critical in future interaction withCongress and federal administrative agencies.The Carnegie Corporation of New York awardedNARF start-up funding in 1972 for the creationof the National Indian Law Library, a national

repository for Indian legal materials andresources. Over ten years later, in 1984, NARFestablished its second branch office inAnchorage, Alaska, to take on the Alaska Nativeissues of tribal sovereignty and subsistencehunting and fishing rights. �


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Sara Rios, Ford Foundation. Board Chairman Delia Carlyle, NARF Executive DirectorJohn Echohawk, former Board member Charles Lohah.



Shinnecock Nation’s federalacknowledgment finallyrealized

The Shinnecock IndianNation (Nation) and theNative American Rights Fund(NARF) are celebrating theOctober 1, 2010 decision bythe U. S. Interior Board ofIndian Appeals (the “IBIA”)dismissing two requests forreconsideration of the U.S.Department of the Interior’sFinal Determination forFederal Acknowledgment ofthe Nation (the “FD”), becausethe requesters failed todemonstrate that they were interested partiesunder the federal acknowledgment regulations.With the ruling, the FD is immediately effective,thereby rendering the Nation the 565th federallyrecognized Indian nation in the United States.NARF is proud and honored to have representedthe Nation in its federal acknowledgment peti-tion efforts during this time, along with Mark C.Tilden of the law firm Tilden McCoy, LLC.

The decision ends a 32-year saga initiated bythe Nation and NARF when NARF filed theNation’s initial petition and litigation request in1978 with the U. S. Department of the Interior.The events in the following years finally culmi-nated in the Department issuing a FD datedJune 13, 2010 concluding that the Nation metthe seven mandatory federal acknowledgmentcriteria under 25 C.F.R. § 83.7. (See 75 Fed. Reg.34,760 (June 18, 2010)). The FD was challengedin the IBIA by the requesters who claimed to beinterested parties. But, the IBIA rejected theirchallenges.

Chairman Randy King of the Nation’s Board ofTrustees eloquently stated, “After 32 years, theShinnecock Indian Nation has finally obtainedformal federal acknowledgment, thus closing a

long chapter on the Nation’s epic struggle. TheNative American Rights Fund was part of thiseffort and the Nation is grateful that it crossedthe finish line with NARF by its side.”

John Echohawk, NARF Executive Director,reflected on the long fight by his modern daywarriors, the NARF attorneys, lamenting “Ittook forever to achieve federal acknowledgmentfor Shinnecock, but with the persistence of theNation and the expertise of former NARF attor-ney Mark Tilden and NARF attorney KimGottschalk, we finally got it done.”

The Shinnecock Indian Nation is located onthe Shinnecock Indian Reservation, adjacent toSouthampton, New York.

Kaltag Tribe’s ICWA case now finalThe United States Supreme Court declined to

hear the State’s appeal in the case of Hogan v.Kaltag Tribal Council, thus effectively endingthe case and clearly reinforcing the rule thattribal courts have authority to initiate and fullyadjudicate children’s cases.

The Kaltag Tribal Council had taken emer-gency custody of one of its member children dueto allegations of abuse and neglect and, after

CASE UPDATES

Gordell Wright, Shinnecock Nation; Billy Frank, former NARF Board member;Lance Gumbs, Shinnecock Nation.

NARF LEGAL REVIEW

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conducting hearings and find-ing a suitable home, it termi-nated the rights of the birthparents and issued an order ofadoption to the adoptive par-ents in Huslia. Kaltag thennotified the State of AlaskaBureau of Vital Statisticsabout the adoption andrequested a new birth certificate reflecting thenames of the adoptive parentsand the new last name of thechild. The State refused,claiming that it did not owefull faith and credit to thedecision of the Kaltag Tribal Court becauseKaltag did not have jurisdiction to initiate thecase at all.

In the fall of 2006, NARF filed a lawsuit onbehalf of the Kaltag Tribal Council and the adop-tive parents to enforce the full faith and creditprovision of the Indian Child Welfare Act(IWCA). In February 2008, the United StatesDistrict Court rejected the State’s claims andheld that Tribes have jurisdiction to adjudicateadoptions and child-in-need-of-aid (CINA) typecases over their member children, and that theTribal Court's decisions are entitled to full faithand credit by the State. In a detailed andthoughtful opinion, the Court reaffirmed whatthe United States Supreme Court stated in theHolyfield case that the IWCA created “concur-rent but presumptively tribal jurisdiction in thecase of children not living on a reservation.” TheCourt also noted that denying tribal jurisdictionin CINA-type cases would leave Tribes “power-less to help children in their own villages at themost critical time.” The Court's decision wasthen summarily affirmed by the Ninth CircuitCourt of Appeals.

This case reaffirms the rule that when Tribesadjudicate domestic matters of their own mem-ber children, whether it is a simple voluntaryadoption or a CINA-type case, their decisions are

entitled to full faith and credit.Counsel for Kaltag, Natalie Landreth, said

“The fact is that the Kaltag Tribal Court wasdoing what it, and the 561 other tribes in thiscountry, has been doing since time immemorial:taking care of their own children. This casenever should have been appealed to the UnitedStates Supreme Court, and the Plaintiffs arevery glad that their victory stands.” Moreover,the Native American Rights Fund and plaintiffsKaltag Tribal Council and Hudson and SelinaSam call upon Governor Parnell and AttorneyGeneral Sullivan to rescind the Renkes Opinionissued in October 2004 and instead take thisopportunity to work with tribes and tribal courtsto ensure the protection of all children, no matter which court their case is in.

Pamunkey Indian Tribe Files for FederalAcknowledgment

After years of preparing the necessary historical,legal, genealogical and anthropological evidenceto fully document its petition for federalacknowledgment, the Pamunkey Indian Tribe,located on the Pamunkey Indian Reservation,Virginia, filed its petition with the Office ofFederal Acknowledgment, Bureau of IndianAffairs (BIA) on October 14, 2010. It is the onlyIndian Tribe located in the Commonwealth ofVirginia to have filed a fully documented



petition. Established no later than 1646, thePamunkey Indian Reservation is located next tothe Pamunkey River, and adjacent to KingWilliam County, Virginia. The Reservation comprises approximately 1,200 acres and is theoldest inhabited Indian reservation in America.

The history of the Pamunkey people is richand well documented. In the course of collectingevidence for the federal acknowledgment petition, researchers compiled more than athousand documents recording their existencefrom the period of first European contactthrough the present. These documents com-prise official censuses, correspondence betweenthe Pamunkeys and officials of the Common-wealth and U.S. governments, numerous news-paper stories, church and school records, booksby prominent scholars, popular authors, andfederal officials, memoirs and much more.Because of these rich resources, continuous,detailed genealogies have been created for the

Pamunkey Tribal members, which trace theirlineage back over two hundred years.

Notably, documents have been preserved bothin the United States and England that show thecontinual existence of the Pamunkey IndianTribe as an independent sovereign since the firstvisit of Capt. John Smith in 1607, when theEnglish settled Jamestown. At this time,Powhatan, father of Pocahontas, ruled a vastempire which included the great and powerfulPamunkey Indians who were at the core of hisempire. A Treaty relationship between thePamunkeys and Great Britain in 1646, followedby the Treaty of Middle Plantation in 1677, isstill honored between the Pamunkeys and theCommonwealth of Virginia. One expression ofthis continuing relationship is the annual trib-ute ceremony at Richmond, Virginia, where deerand other wild game are presented to theVirginia Governor by the Pamunkey Chief andmembers of Tribal Council.

The Tribe has survived intact as an identifiableIndian tribe, although they are not yet federallyacknowledged. Tribal existence does not dependon federal acknowledgment. It is, however, nec-essary to establish a government-to-governmentrelationship between the Tribe and the Federalgovernment, which allows the Tribe access tofederal services and benefits. The Tribe’s peti-tion documents their continued existence from1789 to the present and their self-governancethroughout this time, which meets the federalacknowledgment regulations.

The Pamunkey Chief and Tribal Council statethat “Current Pamunkey Tribal membersrespect and appreciate what our ancestors haveaccomplished since first European contact,especially their sustained and successful effortsto maintain the lands, identity and sovereigntythat have belonged to the Pamunkey Indians forthousands of years. We believe that federalacknowledgment is the natural means to con-tinue those traditions and honor the ancestorswho have given us our birthright. We look for-ward to the day our existence as an Indian Tribeis formally acknowledged by the United States.”

The Native American Rights Fund (NARF) hasrepresented the Pamunkey Indian Tribe in thiseffort since 1988, joined by the law firm ofTilden McCoy, LLC this year.

Tribal Supreme Court Project UpdateThe Tribal Supreme Court Project is part of

the Tribal Sovereignty Protection Initiative andis staffed by the National Congress of AmericanIndians (NCAI) and the Native American RightsFund. The Project was formed in 2001 inresponse to a series of U.S. Supreme Court casesthat negatively affected tribal sovereignty. Thepurpose of the Project is to promote greatercoordination and to improve strategy on litiga-tion that may affect the rights of all Indiantribes. We encourage Indian tribes and theirattorneys to contact the Project in our effort tocoordinate resources, develop strategy and pre-pare briefs, especially at the time of the petitionfor a writ of certiorari, prior to the SupremeCourt accepting a case for review.

On November 1, 2010, the U.S. Supreme Courtheard oral argument in the first Indian law caseof the term, United States v. Tohono O’odhamNation. The Court is reviewing a decision of theU.S. Court of Appeals for the Federal Circuitwhich found that 28 U.S.C. § 1500 does not pre-clude jurisdiction in the Court of Federal Claimswhen a Indian tribe has also filed an action inFederal District Court seeking different relief(e.g. money damages versus historical account-ing). During oral argument, the Justicesappeared to struggle with the positions of bothparties and the practical implications resultingfrom a ruling for either side. In particular, theCourt appeared hesitant to adopt the broad rulesought by the United States — a rule precludingjurisdiction in the Court of Federal Claims inwhich a “related” case is pending in anothercourt even if it seeks different relief. A numberof Indian tribes have filed identical claims forbreach of fiduciary duties in both the Court ofFederal Claims and the Federal District Courtseeking separate relief. Unlike prior Indian law

cases, the Justices did not appear as hostile tothe tribal position.

On October 12, 2010, the Court granted reviewin the second Indian law case for this term,Madison County v. Oneida Indian Nation of NewYork. In Madison County, the U.S. Court ofAppeals for the Second Circuit held that theOneida Indian Nation is immune from suit inforeclosure proceedings for non-payment ofcounty taxes involving fee property owned bythe Tribe. In a terse concurring opinion writtenby Judge Cabranes and joined by Judge Hall, twoof the three judges on the Second Circuit panelagreed that they were bound by Supreme Courtprecedent upholding tribal sovereign immunity,but wrote that this decision “defies commonsense” and “is so anomalous that it calls out forthe Supreme Court to revisit Kiowa andPotawatomi.” This case is the latest chapter of alengthy dispute over payment of taxes addressedby the Supreme Court in 2005 in City of Sherrillv. Oneida Indian Nation of New York.

You can find copies of briefs and opinions onthe major cases we track on the Project’s website(www.narf.org/sct/index.html). �


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Mark Macarro, Tribal Chairman of thePechanga Band of Luiseño Indians in California,was first elected as a Councilman in 1992. He isserving his eighth consecutive two-year term onthe council and is in his 14th year as TribalChairman. Macarro’s vision for the Pechangapeople is to see the band strengthen its politicalself-determination and economic self-sufficiencyby developing a diversified economy for thePechanga Band while maintaining its distinctand unique cultural identity.

A national leader, Macarro representsPechanga in the National Congress of AmericanIndians (NCAI) as an alternate area Vice-President of the Pacific Region 2007-2009 andrepresents the Pacific Region on the board ofdirectors for the National Indian GamingAssociation (NIGA). He is a member of theElectoral College 2008 US Presidential Election,2008 Platform Committee Member of theDemocratic Party and a member of the Board ofGovernors, Harvard Honoring Nations. In 2008he was presented as a Pathbreaker AwardHonoree at the 20th Annual IGRA Symposium.

He also served as a Riverside County Board ofSupervisors appointee to the County HistoricalCommission and served on the board of direc-tors of Borrego Springs Bank, NA. In the 1990sas a charter board member, Chairman Macarrohelped found the Advocates for IndigenousCalifornia Language Survival (AICLS), a non-profit organization with the mission of fundingtribal language speakers in the state. Macarrohas a Bachelor of Arts degree in political sciencefrom the University of California, Santa Barbara.

Chairman Macarro believes it is critical tomaintain and cultivate the Pechanga tribal cul-ture, language, and traditional life ways so thatthe Pechanga people can preserve their uniquetribal identity. Macarro is a traditional Luiseñosinger, singing ceremonial Nukwáánish funeralsongs at tribal wakes throughout area Indianreservations, and is a practitioner of Cham’tééla,the Luiseño’s native language. He has also beenan apprentice bird singer to Robert Levi, anelder of the Torres-Martinez Reservation; havinglearned hundreds of Levi’s birdsongs.



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Buford L. Rolin is a member of the PoarchBand of Creek Indians in Alabama. He has servedas Secretary for the Tribe and has served as theVice-Chairman from 1991-1999. As of June 2006he serves in the capacity of Chairman.

In 1989, Chairman Rolin received a serviceaward for improving the Health of IndianPeople. In 1993, he was awarded the Director’sAward for Excellence by the Indian HealthService. In 1996, he also received the AreaDirector’s Special Commendation Award fromthe Indian Health Service. Chairman Rolin hasserved on many national organizations includ-ing the National Congress of American Indians(NCAI), the Atmore Area Partnership for YouthBoard of Directors, and the Florida Governor’sCouncil on Indian Affairs. He has held variouspositions involving the Northwest Florida CreekIndian Council, the National Committee onIndian Work, the Episcopal Church, TheChamber of Commerce Board of Directors,Creek Indians Arts Council, Creek IndianHeritage Memorial Association, and the UnitedSouth & Eastern Tribes (USET) and currently asVice-Chairman for the National Indian HealthBoard (NIHB). He serves on the State of

Alabama Public Health Advisory Board and is amember of the USET Health Committee. During2000, Mr. Rolin was appointed to the WhiteHouse Commission on Complimentary andAlternative Medicine Policy by then PresidentBill Clinton.

Natasha V. Singh, serves as General Counselto the Tanana Chiefs Conference in Fairbanks,Alaska. Previous to this, Ms. Singh was a lawclerk for Justices Daniel Winfree and DiesjeSteinkruger of the Alaska Supreme Court. Shewas also a law clerk for the Native AmericanRights Fund in the Summer of 2006. Ms. Singhreceived a Bachelor of Arts from DartmouthCollege in 2004 where she was President ofNative Americans at Dartmouth and receivedDartmouth’s Stacey Coverdale AcademicAchievement Award. Ms. Singh received a JurisDoctor from the University of Washington in2007 and was a member of the Native AmericanLaw Students Association. She was the TulalipTribes Public Defender from 2006 to 2007. �



National Indian Law Library

About the LibraryThe National Indian Law Library (NILL) located

at the Native American Rights Fund in Boulder,Colorado is a national public library serving theIndian law information needs of people across theUnited States. Since 1972 NILL has collectednearly 10,000 resource materials that relate tofederal Indian and tribal law. The Library’s hold-ings include the largest collection of tribal codes,ordinances and constitutions in the United Statesand hard to find reports, handbooks and confer-ence proceedings. We believe the real value ofNILL is the professional staff that responds toabout 150 questions from the public each month– providing copies of documents in a timely way.In addition, the free Indian Law Bulletin Service

helps keep the legal professional, student andgeneral public informed on weekly developmentsin Indian law. Visit the NILL web site to learnmore and to register for the free Indian LawBulletin alerts. www.narf.org/nill/index.htm

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 a spe-cial project, please contact David Selden, the LawLibrarian at 303-447-8760, [email protected] orvisit us in Boulder, Colorado. �

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• Chickasaw Nation

• Citizen Potawatomi Nation

• Fond du Lac Band of LakeSuperior Chippewa

• Iowa Tribe of Oklahoma

• Mississippi Band of ChoctawIndians

• Poarch Band of CreekIndians

• Pokagon Band ofPotawatomi Indians

• San Manuel Band of MissionIndians

• Shakopee MdewakantonSioux Community

• Wildhorse Foundation

• 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 theNative American Rights Fund and the thousands

of Indian clients we have served. The generosityof Tribes is crucial in NARF’s struggle to ensurethe future of all Native Americans.

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 partners with NARF in fighting for justice forour people and in keeping the vision of ourancestors alive. We thank the following tribesand Native organizations for their generous support of NARF thus far for our 2011 fiscal year– October 1, 2010 to September 30, 2011:

CALLING TRIBES TO ACTION!



THE NATIVE AMERICAN RIGHTS FUND

NARF Annual Report. This is NARF’s major report onits programs and activities. The Annual Report is distributed to foundations, major contributors, certainfederal and state agencies, tribal clients, NativeAmerican organizations, and to others upon request.Ray Ramirez Editor, [email protected].

The NARF Legal Review is published biannually by theNative American Rights Fund. Third class postage paid at Boulder, Colorado. Ray Ramirez, Editor,[email protected]. There is no charge for subscriptions,however, contributions are appreciated.

Tax Status. The Native American Rights Fund is a nonprofit, charitable organization incorporated in 1971under the laws of the District of Columbia. NARF isexempt from federal income tax under the provisions ofSection 501 C (3) of the Internal Revenue Code, andcontributions to NARF are tax deductible. The Internal

Revenue Service has ruled that NARF is not a “privatefoundation” as defined in Section 509(a) of the InternalRevenue Code.

Main Office: Native American Rights Fund1506 Broadway, Boulder, Colorado 80302 (303-447-8760) (FAX 303-443-7776).http://www.narf.org

Washington, D.C. Office:Native American Rights Fund1514 P Street, NW (Rear) Suite D, Washington, D.C.20005 (202-785-4166) (FAX 202-822-0068).

Alaska Office: Native American Rights Fund801 B Street, Suite 401, Anchorage, Alaska 99501 (907-276-0680) (FAX 907-276-2466).

The Native American Rights Fund (NARF) wasfounded in 1970 to address the need for legal assis-tance on the major issues facing Indian country. Thecritical 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 fortieth year of exis-tence, it can be acknowledged that many of the gainsachieved 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. Thecontinuing lack of understanding, and in some caseslack of respect, for the sovereign attributes of Indiannations has made it necessary for NARF to continuefighting.

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 pro-tection of tribal natural resources; (3) the promotionof human rights; (4) the accountability of govern-ments to Native Americans; and (5) the developmentof Indian law and educating the public about Indianrights, laws, and issues.

Requests for legal assistance should be addressedto the Litigation Management Committee at NARF’smain office, 1506 Broadway, Boulder, Colorado80302. NARF’s clients are expected to pay whateverthey can toward the costs of legal representation.

NARF’s success could not have been achieved with-out the financial support that we have received fromthroughout the nation. Your participation makes abig difference in our ability to continue to meet ever-increasing needs of impoverished Indian tribes,groups and individuals. The support needed to sustain our nationwide program requires your continued assistance.

NATIVE AMERICAN RIGHTS FUND BOARD OF DIRECTORS

Delia Carlyle, Chairwoman ....................................................................Ak Chin Indian CommunityKunani Nihipali , Vice-Chairman ..............................................................................Native HawaiianVirginia Cross ........................................................................................................Muckleshoot TribeGerald Danforth ........................................................................................................Wisconsin OneidaBeasley Denson ..........................................................................Mississippi Band of Choctaw IndiansRichard Luarkie ........................................................................................................Pueblo of LagunaMark Macarro ..............................................................................Pechanga Band of Luiseño IndiansMarshall McKay ......................................................................................Yocha Dehe Wintun NationBuford Rolin ........................................................................................Poarch Band of Creek IndiansNatasha Singh ..............................................................................................Native Village of Stevens Barbara Anne Smith ................................................................................................Chickasaw NationRon His Horse Is Thunder ................................................................................Standing Rock SiouxExecutive Director: John E. Echohawk ..................................................................................Pawnee

NARF LEGAL REVIEW • VOLUME 35, NO. 2 • SUMMER/FALL 2010

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