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

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1 National Indian Law Library NILL No /2002 dl cl THE LONG STRUGGLE HOME: THE KLAMATH TRIBES' FIGHT TO RESTORE THEIR LAND, PEOPLE AND ECONOMIC SELFSUFFICIENCY On March 19, 2002 the Secretary of the Interior invited the Klaath Tribes to eet with Interior officials to work on long ter solutions to an entire range of water, land and wildlife issues facing the people of the Klaath Basin in Oregon and California. This historic invitation will include discussions of the potential return of public lands taken fro the Tribes in the 1960's when the federal governent took the Tribes ancestral reservation lands. The Tribes' lands were taken as part of the now repudiated "Terination Era" when the policy of the United States Congress was to end the governenttogovernent relationship with Indian tribes and force the assiilation of Indian people into the ainstrea of the ajority culture. Although the Tribes retained significant property rights on their forer lands to hunt, fish and gather and water rights to sustain those activities, the water and wildlife resources have been continuously degraded to a state where they can no longer be harvested to provide subsistence for tribal ebers. Indeed, the entire ecosyste of the Klaath Basin has been so degraded that it can no longer sustain either the quantity or quality of water deanded. In 2001 it was necessary for the first tie in nearly 100 years for the federal Bureau of Reclaation to curtail delivery of agriculture irrigation water to a federally subsidied reclaation project in order to avoid jeopardiing treaty protected fisheries listed on the federal endangered species list. That fishery is a central coponent of tribal subsistence, and it has been cut off since 1986 when the Tribes deterined that the fishery was in jeopardy. While Congress reacted quickly to provide 20 illion dollars of econoic relief to the The Long Struggle Hoe: The Klaath Tribes' Fight to Restore Their Land, People and Econoic SelfSufficiency... page 1 CASE UPDATES Alaska Court Strikes Down EnglishOnly Law... page 1213 New Board Meber... page 14 Indian Law Library... page 14 farers in 2001, along with a long list of other supports and benefits, not one die of relief has been provided to the Tribes for the loss of their fishery. The farers in the irrigation project reacted angrily to having their water deliveries curtailed for the first tie in the project's history. The Tribes have warned for years that the federal and state governents had seriously over coitted VOLUME 27, NO. 1 WINTER/SPRING 2002

2 Q the waters of the Basin, proising far ore Z water than nature could possibly deliver in even an average water year. That proble finally en cae to a head last year when the degraded 11 condition of the Klaath basin watershed in :c c::s a year of serious drought siply could not i: eet the needs of all concerned and the endangered species took precedence. c:r: u At the sae tie the State of Oregon has LI.II initiated a General Strea Adjudication to E quantify the clais to the use of waters c:r: originating on the Oregon side of the Klaath Basin. Over 700 claiants are engaged in an adinistrative/judicial process that will require = several ore years and illions of dollars to Z coplete. Wildlife refuges necessary to support igratory waterfowl and the largest population of bald eagles in the country are chronically dewatered. Coho salon in the lower reaches of the Klaath River are listed as threatened species and continuously fail to eet the treaty reserved subsistence needs of the Indian Tribes who depend upon the. It is clear that the Basin fro its headwaters to the ocean is in a seriously degraded and depleted condition. The restoration of the entire Basin is necessary to eet the needs of sustainable agriculture, viable wildlife refuges, a vigorous fishery for both the upper and lower river tribes, and a restored habitat that accoodates habitat for healthy deer and related wildlife species and abundant food gathering. The Klaath Tribes are beginning discussions about the return of the Tribes' land base as an essential eleent of their restoration as a people, and of the reconstruction of their once vital econoy. These discussions, of necessity, ust include the restoration of the seriously degraded ecosyste that is integral to the vitality of the entire Klaath Basin. It is difficult to understand how the Tribes were placed in the position in which they find theselves without an appreciation of the historical events that placed the there. Hatan Klaath Warrior (Edward S. Curtis Collection ) Courtesy of the Klaath News Departent The subjugation and the destruction of lifeways and econoic viability No tribe in Aerica has been ore victiied by the vagaries of federalindian policies than the Klaaths of Oregon. These resourceful and productive people have been twice deciated by federal policies designed to deliberately destroy their econoy and underine their culture. The prosperous and powerful Klaath, Modoc and Yahooskin Band of Snake Paiute people ("the Klaaths") once controlled 22 illion acres of territory in south central Oregon and northern California. Their lifestyles and econoies provided abundantly for their needs and their cultural ways for over fourteen thousand years. Contact with invading Europeans, however, quickly deciated their nubers through disease and war and resulted in a treaty reserving to the Tribes a diinished land base of 2.2 illion acres. Once traditional rivals, the three tribes were forced to live in close proxiity to one another. PAGE 2

3 The Tribes' econoy and trade were wiped out and the people were forced to survive on a subsistence basis dependent alost entirely on the fish, wildlife and gathering provisions of the treaty, a subsistence that was further diinished by the destruction of the abundant salon runs by the construction of hydroelectric das in the early 1900's. The Tribes were, in addition, forced to engage in a continuous struggle with the United States over its relentless efforts to diinish and ultiately wipe out the Klaath hoelands, a struggle further exacerbated by federal encourageent of strife aong the tribes. Klaath Chief at Crater Lake (Edward S. Curtis Collection ) Courtesy of the Klaath News Departent!i c: rn ::s == rn C'") ::s C') :c I (,I,» ""l"i c: = In spite of these obstacles the Klaaths thrived on the reaining fish and wildlife resources, and recreated their vigorous econoy based on careful tiber production and livestock graing. They soon becae one of the nation's wealthiest and strongest tribes. In 1953 the Klaath people were nearly at econoic parity with ainstrea society. Tribal individual incoe was 93% of the ajority culture. The Tribe was, oreover, no burden on taxpayers. The Klaath Tribes were the only tribe in the country paying their BIA adinistrative costs. In 1957 there were only four Indians on welfare in the Klaath Basin three on old age benefits and one on disability. The Klaath Tribes were by every easure not only no burden, but a significant contributor to the local econoy. Their strength and wealth were, however, no atch for deterined efforts of the federal governent to eradicate their culture and acquire their ost valuable natural resources a illion acres of land and ponderosa pine. The stage was set for the dispossession of the Klaaths in the early 1950's when the Tribes were subjected to the worst of any disastrous experients in federalindian policy "Terination". "Terination" was a federal policy adopted by the United States Congress in 1953 on its own otion, without the request of any tribe and over the objections of alost all tribes and Indian organiations of the day. The purpose of the policy, in its siplest ters, was to force the assiilation of Indian people into the ainstrea Aerican culture by the abolition of tribal governents, the eradication of reservations and all tribal holdings of lands and assets, and a whole array of other purposes. In short, having gotten the benefit of the bargain fro the treaties with Indian nations, the federal governent no longer wished to uphold, even in the sallest degree, its side of the bargain. Terination was, therefore, accoplished over the objections of the ajority of the tribal ebers and to the great detrient of the Tribes. The thrust of the policy was to abrogate and reove the bulk of the federal responsibilities guaranteed to the Tribes by treaty. These treaty guarantees had been bought and paid for with Tribal cessions which surrendered over 20 illion acres of prie tiber and far lands to the United States. The federal obligations proised in exchange included a whole array of services and benefits to which the Klaath people were entitled. Aong those federal guarantees were PAGE 3

4 = delivery of a range of social Z services including health, educa tion, and housing, as well as the (I) protection of their sovereignty and I ::c natural resources. c::s cs: u... E cs: Once terinated the Tribes were cut off fro these valuable services. There was not at the tie, nor has there ever been, any copensation for the loss of these entitleents. The value of these lost services fro the ipleenta tion of terination in 1961 until > restoration in 1986 has been =:;: estiated to be about one hundred Z fortyeight illion dollars ($148,000,000). There were, in addition, federal guarantees which insulated the Tribes and its ebers fro taxation and other econoic burdens iposed by the state and local nonindian governents. These guarantees had treendous value the ost conservative estiate being at least $100 illion over the period fro 1961 to 1986 yet were given no consideration at Terination when they were discontinued. But Terination took even ore iportant assets fro the Klaath people, both tangible and intangible. The intangible was the Klaaths' identity as an Indian nation aong the great circle of recognied Indian tribes of Aerica. The loss of this identity did incalculable psychological daage to the Klaath people. They were inappropriately viewed as having "sold out" their Indian heritage. The tangible asset that was taken was the then diinished but still extensive reservation of over 880,000 acres of ponderosa pine the reservation lands and resources that ebodied the sacred hoeland and source of sustenance for these proud and resourceful people. The tiber resource by itself would, over the next 40 years, produce in excess of $450 illion in revenues for the United States. Woan gathering wocus at the arsh (Edward S. Curtis Collection ) Courtesy of the Klaath News Departent It is difficult to overstate the disastrous ipact or the enorous stupidity of these actions. Congress first reached the patently sha conclusion that the Klaath people were "ready" for terination because they had achieved sufficient sophistication in the arts of "civiliation" that they were prepared to assiilate into the ajority culture. This conclusion was contrary to both the report of the Bureau of Indian Affairs that the Klaaths did not eet Congress' criteria for terination, and the Stanford Research Institute report that ipleentation of terination would be disastrous. The federal agencies responsible for ipleenting terination then reached the incredible conclusion that fully onehalf of the adult Klaaths were incapable of anaging their own affairs without a legal guardian. Undaunted by this extraordinary inconsistency, terination proceeded to the realiation of its actual purposes the dispossession of the Klaath people fro their rich and prosperous hoeland and the reoval of the Tribes and its ebers fro federal recognition. The corollary but unrecognied and related inconsistency of the Klaath terination legislation was the taking of the land. Any validity to the conclusion that the Klaath PAGE 4

5 people ay have been prepared for release fro federal supervision was dependent solely upon the assessent that they were one of the, if not the ost, econoically selfsufficient tribes in the country. But that selfsufficiency was directly related to the revenues generated priarily by the tribal tiber and ranching and related industries. These industries ranching and tiber are of necessity tied to the lands that support the. It was, however, ownership of those very resources that terination legislation was designed to reove fro the Tribes and its ebers. It was, oreover, done in a fashion that guaranteed that neither the Tribes nor its ebers would have any realistic chance of acquiring any of the lands of the soon to be forer reservation. == c ::ii == n ::ii C) :c... fl) n c = At the tie of terination tribal ebers were separated into two groups; those who would receive their share of the tribal estate in cash fro liquidation of tribal assets the "withdrawing ebers"; and those who would hold an undivided interest in a share of the tribal estate to be anaged by a private trustee the "reaining ebers." The election to be in one group or the other was the only choice ever given to the Klaath people. But only those who had reached ajority 21 years of age could vote. The tribal estate would be divided into two parcels: one to be sold to produce the revenues to be paid to the "withdrawing ebers"; and, another to be anaged by a private trustee for the benefit of the "reaining ebers." There was great confusion at the tie of the election. Very little useful or reliable inforation about the real eaning of either choice was available. There was, in addition, uch isinforation. It was generally felt that taking the cash being offered at the tie ay be the only chance to ever get anything fro the tribal estate. Many thought that they could take the oney and acquire a parcel of land. Others siply did not understand that the payent eant the loss of the lands. Given this confusion, 77% of those who voted chose to take the oney, not Klaath Indian in forer fo rest (Edward S. Curtis Collection) Courtesy of the Klaath News Departent fully appreciating that it eant they would lose their ancestral reservation. As for the reaining lands concept, there was no inforation about what the plan for the reaining ebers would be, how those lands would be anaged, who would anage the or what role the reaining ebers would play in the anageent. After the election Congress deterined that such a large portion of the ponderosa pine forest reservation would be sold that they needed to do soething to protect the local tiber industry. Without any concern for the ipact on the tribal ebers, Congress aended the terination legislation and ade it a provision that no portion saller than 5,000 acres could be acquired and that these forest lands had to be anaged on a sustained yield basis. This new provision had two iportant effects: 1) it virtually assured that no tribal eber would receive enough oney to purchase the iniu sied parcel; and, 2) PAGE 5

6 ca since "sustained yield" was a poorly understood Z anageent concept at the tie, it depressed the value of the lands on the arket. This was en evidenced by the fact that there was only one!;:: private bid on the lands CrownZellerbach C::S took a 90,000 acre parcel. cc u LI.I E cc S Even if a tribal eber had wanted to borrow oney to add to their share of the liquidated estate so they could purchase lands, they had little or no sophistication in financial affairs. The only econoic purpose for which they could have acquired the land was tibering or ranching. It would have been nearly ipossible to deonstrate any real possibility of copeting with the United States Forest Service as a Z supplier of tiber in the late 1950's. Except for the CrownZellerbach parcel, the rest of land was taken through condenation by the United States to becoe the ajority part of the Winea National Forest and a portion of the Freont National Forest. Congress deterined after the vote that there would be a private trustee to anage the socalled "reaining lands." A local bank was selected as the trustee and the reaining ebers were given very little say about how the lands were to be anaged. Once again the irony and inherent inconsistency for the anageent of the "reaining lands" was evident. Here were people declared by congressional finding to be prepared to handle their own affairs nevertheless having their assets placed under the supervision of a federally appointed trustee. The "reaining ebers" were to have no real say or control over their own assets nor over the actions of the trustee. Nor would the reaining ebers ever have any real opportunity to ultiately undertake anageent of the trust assets for theselves. Indeed their only opportunity for input on the adequacy of the perforance of the trustee was a vote every five (5) years on whether to retain the federally selected trustee soething they discovered only after they elected to be "reaining ebers". The reaining ebers exercised their right to vote on retention of the trustee on two PAGE 6 Wife of Moduc Henry (Edward S. Curtis Collection ) Courtesy of the Klaath News Departent occasions. The trustee turned out to be the United States National Bank of Oregon. On the second vote in 1971 the ajority opted to reove the trustee. The trustee bank then deterined that the vote was to terinate the trust, not erely the Bank's role as trustee. There was no opportunity for the reaining ebers to clarify their vote and retain a new trustee. The Bank began proceedings to liquidate the trust. Despite significant protests and one lawsuit (later voluntarily disissed under counity pressure), the liquidation of the reaining lands of the forer Klaath Reservation was arranged by the Bank through condenation by the United States. Once again no eber was given a chance to acquire any of their ancestral lands. As outrageous as the iposition of terination was, as ridiculous as the liquidation of the tribal estate was, few things rival the irresponsibility of the incredible schee for distribution of the tribal estate to the withdrawing, and later the reaining, ebers.

7 There is a teptation to point to the political strife aong the Klaath people and conclude that they were politically vulnerable because they were in disarray. Such a conclusion would be unwarranted and erroneous. Their governent was far ore stable than coparable local nonindian governents all over the nation at the tie. This is all the ore rearkable considering that these people were; 1) constituted of traditional eneies forced together on a land base representing one tenth (1110) of their original territory, 2) that they had overcoe a war involving the escape fro and return to the reservation of the Modoc people, 3) that they had rebuilt fro the ground up a viable econoy, and 4) that they enjoyed a reasonably stable tribal governent and relationship with the BIA for over several generations. It is ipossible to iagine a healthy local governent that does not have aong its nubers at least one dissenting voice on any issue, and usually one or ore vocal inority factions. The Klaaths were no different in that regard, and certainly no worse. These were a well integrated people, econoically prosperous, politically active, culturally and spiritually vital while on their reserved hoelands. They were also, for all of their success at rebuilding their reservation econoy, reservation Indians. That had soe very specific eanings in the 1950's. It eant, for exaple, that they were unaccustoed to a nuber of the attributes of the ajority society. They lived in a setting where they paid no property taxes. They had little or no consuer debt. A significant portion of their subsistence was taken fro reservation fish and gae sources, to which they had exclusive access. They enjoyed an enclave secure fro the destructive anageent practices of the Fish and Gae Departent of the State and the habitat destroying practices of the U.S. Forest Service. Few of the had checking accounts or engaged in any significant aount of consuer purchases for large and expensive ites with the exception of cars or appliances. They lived priarily on the reservation in sall counities insulated fro ost of the influ ences of the ajority culture. They certainly had no experience with large distributions of oney. They were, in addition, not subject to state incoe or other taxes while on the reservation. Although, like Indian people everywhere, they paid every conceivable tax when they went to town and purchased the necessary goods and services for daily life. They also had a connection to their ancestral lands, the significance of which is ipossible to convey here. They were spiritually responsible for the land that was being sold out fro under the. The land was a source fro which they drew spiritual and cultural as well as bodily sustenance. They took their stewardship responsibilities seriously. They conveyed uch of their cultural ways to the young through experiences on the land that reflected their relationship with the Creator. Their lives were being transfored by forces beyond their control and in ways beyond their coprehension. All of this without one single study by Congress prior to adopting this policy about the econoic, social or cultural ipacts involved. The single possible exception to this was the Stanford Research Institute study which was finished after Congress had adopted the Terination Act, and which Congress ignored in all subsequent considerations in the ipleentation of the Act. It is against this backdrop that the federal governent in 1961 deterined to distribute checks for $43,000 each to 1,659 Klaath individuals. A distribution that was to take place without counseling for either the Klaaths or the local counity; without the provision for a reasonable transition by the Klaath people; without any safeguards against sharp dealings or unscrupulous consuer practices. And, because so any Klaath's "ready" for terination were declared to not be copetent to handle their own financial affairs, a significant portion of the payents went into individual trust accounts anaged priarily by local attorneys or bank trust officers, ost of the having no experience in handling such atters, PAGE 7 ::= ::C :l:li al: c=; :l:li 25!! 1 en! Z Cl

8 Cl and none of the having any training!$ cultural sensitivity. u.. en The bulk of the oney distributed to the!;: Klaaths which actually was delivered into C:S their hands was expended on the usual array of consuer goods purchased by ost citiens of the day; hoes, furniture, appliances, cars :: etcetera. These purchases were intended to accoplish at least soe of the sybolic transiffi ti on of the Klaath people toward the goal they E had been told they ust pursue assiilation C::::C into the ajority culture. What they were not told, of course, is that no aount of oney ;:::: C Z could purchase a nonracist counity willing to deal honorably with the in coercial and social affairs. The result, as predicted by the Stanford Research Institute Study, was a disaster. Much of the wealth derived fro the sale of the Klaath's heritage was lost to sharp dealings by erchants; unscrupulous attorneys that ishandled, ebeled or engaged in selfdealing fro trust accounts of those deterined to be incopetent; to poorly considered investents soeties by attorneys lending theselves oney fro the accounts; or to exorbitant fees charged by local attorneys or banks for the handling of the beneficiaries affairs which hardly ever got ore sophisticated than handing out checks to the beneficiaries a process usually handled in the ost paternalistic of ways. They were also lost to nonindian spouses who arried Klaaths, had the declared incopetent, and gained control of their assets. There were also those who siply wasted their Klaath spouses' wealth and then left. There were, in addition, ysterious deaths of Klaath people. And in soe cases following the death of a Klaath eber, the disinheriting of the children born before the arriage in favor of the surviving nonindian spouse. But uch of the wealth went to another far less visible but culturally significant end. Those born after August 13, 1954 were cut off fro eligibility to share in the distribution of the tribal estate. They would receive nothing while siblings a year or ore older received either $43,000 or a share in the Reaining Mebers estate. As a result any of the Klaath parents and siblings shared their distributions with those cut off by the accident of later birth. Soe of the oney, however, went to far ore sensational purchases. These becae the fodder of the stories told in the press about days long parties, ultiple purchases of cars, and Indian individuals walking around with thousands of dollars in paper bags. Many of the stories were true. The fact that they were the exception did nothing to keep the fro arking all of the Klaath people as wild squanderers of their oney. These behaviors are not significantly different fro what any thoughtful person ight have expected given a oent to reflect on what could actually happen. Any group of 2,100 people randoly selected would have engaged in uch the sae conduct given a check for a large aount of oney with no experience in financial affairs and no counseling of any sort available to the. Recent studies of the fate of lottery winners reflects soe of the sae experiences. Add to that the burdens facing the Klaaths. They were being asked to deal with this at a tie when their whole culture was undergoing significant upheaval. Their way of life was being copletely transfored. Their econoic syste was being stripped away. And in all of this they were being blaed for abandoning their Indian identity in a situation where they had no real choices and little hope of having others understand the coplex set of circustances that led the to the situation in which they were placed. One result was treendous guilt along with frustration all the ore confusing because there was no basis at the tie for understanding these feelings. These contributed to the desire, both overt and subliinal, to get rid of the oney that sybolied their betrayal. It also led to rapant alcoholis and the attendant probles of suicide, doestic violence, loss of selfestee, syptos of posttrauatic stress PAGE 8

9 syndroe, and ore. This is but a part of the legacy of terination. The econoy of the Klaath's was destroyed. Their land lost to the federal governent for a fraction of what would prove to be its real value. The culture and social fabric of the people was seriously hurt. Their governent was critically underined and all but dysfunctional. Their consistent requests for assistance in preserving a sall portion of their heritage went unheeded. They were dispossessed fro the very landbased enterprises at which Treaty signers and descendants (Treaty of 1864) they had been so successful. They were sent to participate in a society for which they had few of the skills or inclinations necessary with which to succeed; a society illprepared and largely unwilling to accoodate the. The single exception being those willing to arry tribal ebers to obtain access to their relative wealth. Few of those arriages survived the dissipation of the payents. The local counity viewed the with envy and growing contept based on the biarre notion that the payents for their land were in soe sense a windfall which was unearned and undeserved. This conclusion was based in part on the perception that the Klaath's inability to hold on to and increase that wealth was an indication that they truly had not deserved it in the first place. The irony of the latter conclusion all the ore poignant since the loss of so uch of that wealth is directly traceable to dealings with uch of that sae counity. Faced with growing deoraliation, the social profile of the Klaath people reflected increasing evidence of all of the indices that have coe to characterie one face of Indian Aerica poverty, alcoholis, high suicide rates, low educational achieveent, disintegration of the faily, poor housing, high dropout rates fro school, disproportionate nubers in penal institutions, increased infant ortality, decreased life expectancy and ore. The once selfsufficient Klaath people had not realied the drea of assiilation that the federal officials and bureaucrats had crafted and forced upon the. They had, instead, had their land and resources stripped fro the; been subjected to the distribution of large sus of oney with which they were illprepared to deal; suffered the worst of consuer and other practices in having that wealth wrested fro the; been offered no realistic alternatives in the process; and finally blaed and ridiculed for the very process that had victiied the. The enduring spirit of survival; the fight to protect part of the legacy Despite the announced goals of the Terination Act the Klaath Tribes didn't disappear, and they didn't give up their battle to regain what they had lost. Although the lands had been taken by condenation the Tribes reserved to theselves the right to hunt, fish and gather on their forer reservation in the Treaty of Congress further deterined in the Terination Act of 1954 that these hunting, fishing and gathering rights would not be terinated in the legislation ending the : < ::r:: :1 n ::r:: : G) ::... (I).. c: : = PAGE 9

10 Cl governenttogovernent status of the Tribes Z with the United States and expressly said so in the Act. Despite these clear indications the State U) of Oregon refused to allow tribal ebers to exercise their rights, and subjected the to ca harassent and arrest. c u LI.I E c ;::: C In 1972 five ebers of the Tribes, represented by the Native Aerican Rights Fund, brought suit in federal district court to have their rights vindicated. After appeals to the federal circuit court the Tribes rights to hunt, fish and gather on their forer reservation lands were upheld in Kiball v Callahan. The Tribes, since the id 1970's, have been working diligently to protect the viability of these rights. Despite tireless work on behalf of the Tribes to ste the decline of those fish, wildlife and plant resources on which they relied for subsistence, the habitat destructive practices of the United States Forest Service and wildlife deciating policies of the State of Oregon have nearly wiped out the fish, deer and wocus a water lily the seeds of which were a staple for the Tribes. In the 1960's when the State assued anageent of the wildlife the ule deer were estiated to be at 60 deer per square ile. Today the are below 4 per square ile. The fisheries upon which the Tribes priarily relied the c'wa and qupto (two succulent ullet that exist in only one other place in the world) have been reduced to listing on the federal endangered species list. The wocus beds have been reduced to a fraction (less than 10%) of their forer range as the wetlands throughout the Klaath basin are drained and water diverted for agriculture. One of the parcels acquired by the United States fro the forer reservation was converted into the Klaath Marsh Wildlife Refuge. Soon after it was acquired it becae apparent to the federal refuge anagers in the United States Fish and Wildlife Service that the water diversions for agriculture were depriving the arsh of water, even leaving it dry in soe years. In order to secure a legal deterination of the rights to water for the arsh the United States filed a lawsuit against all of the water users. The Tribes Man fishing. (Edward S. Curtis Collection ) Courtesy of the Klaath News Departent were not included in the lawsuit even though the terination legislation had expressly preserved the Tribes rights to water. Once again, the Native Aerican Rights Fund, this tie on behalf of the Klaath Tribes, intervened in the lawsuit and fought to protect the rights of the Tribes to the water needed to sustain the tribes hunting, fishing and gathering rights. Once again, after appeals that went to the federal circuit court of appeals, the rights of the Tribes were sustained in United States v Adair. As soon as it saw the result in the Adair case, the State of Oregon started a General Strea Adjudication (GSA) of the Klaath Basin to prioritie and quantify all water uses that had been initiated prior to 1909 the year in which the state began requiring perits to substantiate a right for the use of water. The Tribes resisted the State's GSA in federal court but were rejected and are now full participants in the GSA. Throughout all of this the Tribes persisted in their quest for the reversal of terination, continuously seeking the restoration of the governenttogovernent status unilaterally taken fro the in the 1950's. They worked with their own people, congressional leaders, state and local counity representatives, and anyone else who would listen. They were told frequently that despite the fact that other tribes subjected to terination had been and would be restored, there would be no restoration for the PAGE 10

11 Klaaths. Ironically, the reason was because they had been "paid" for their reservation, the outrageous injustice of their treatent being copletely obscured by the seeingly large aounts of oney distributed and the huge losses of their resources and culture copletely eclipsed by the processes that stripped the of their heritage. But through the leadership and vision of the Klaath people and the assistance of a few congressional leaders, the Klaath Restoration Act was adopted into law in Restoration of the Tribes to the great circle of recognied tribes in Aerica began the process of providing the Tribes and their citiens with the resources necessary to put their nation and their people back together. But the daage wrought over 120 years and particularly over the last 40 years cannot be cured in a single act, nor over a course of even a few years. Just as it took decades to create the proble it will take significant tie for the Klaath people to heal it. Rebuilding their lives, their governent, their counity and their econoy NARF attorneys are working with the Tribes to define both the eaning and the ethods for achieving econoic selfsufficiency. This includes a plan for the return of forer reservation lands held by the federal governent within the boundaries of the preterination reservation. The federal governent presently holds as U.S. forest lands 690,000 acres of the forer reservation. Since the federal governent has assued anageent of the Klaaths' forer lands, they have been so poorly anaged that the Tribes' were forced to sue the United States Forest Service to get a declaration that the Forest Service needed to take into account the Tribes adjudicated rights when aking forest anageent decisions that could effect those rights. After winning that case in federal court the Tribes and the Forest Service entered into a Meorandu of Agreeent concerning future anageent. In like anner the Tribes have consistently struggled with the State of Oregon over its practice of historically ignoring Klaath rights when setting bag liits for wildlife take. The result has been the deciation of the deer herds and reduction of fisheries to endangered status. The Tribes now see a land and its related resources nearly deciated. The Klaaths seek return of these lands priarily for the purpose of healing the land and its resources and restoring the to soe seblance of the abundance they once reflected. They also seek to restore the spiritual integrity of the land. The culination of "restoration" in its full sense is the healing of the land, its related resources, and the people, both Indian and nonindian. The goals of the Klaath people are siple and reflective of those to which ost counities aspire. The Klaath people wish to be selfsufficient. Their concept of selfsufficiency takes the back to earlier ties when they experienced no dependence on any federal, state or local nontribal governent or any other outside institutions. It recalls the tie both before the invading Europeans arrived and again before the disastrous policy of terination was visited upon the. It incorporates the concept of tribal independence to provide for the social, econoic, cultural, and spiritual wellbeing of all of its citiens. It is the fundaental notion of tribal selfdeterination. The Klaaths have never and do not now wish to participate in federal welfare dependency. They want the ability and resources to provide for their own people, consistent with their cultural nors and lifeways. The Tribes and their citiens seek the wherewithal to achieve these goals fro the very sae resources that fored the foundation of their earlier ability to provide for their wellbeing and developent. And in that quest they seek soe easure of justice for the iposition of past wrongs and inequities. In the siplest ters, the Klaath people want the chance to restore their forer lands and related resources. They want their way of life back. 0!:: c :S: :!I '" ::ZI C"') :s:= :!! ""'"4 en C!:! Z Ct PAGE 11

12 i! =.. en.. :c c:s CASE UPDATES Alaska Court Strikes Down EnglishOnly Law Alaska's Official English Initiative violates Article I, Section 5 of the Alaska Constitution :ii and is therefore unconstitutional, and null and void in its entirety. "... & 4... >!; After three years of litigation, Judge Fred Torrisi of the Superior Court for the State of Alaska ruled in Alakayak v. State that Alaska's Official English Initiative violates Article I, Section 5 of the Alaska Constitution and is therefore unconstitutional, and null and void in its entirety. Judge Torrisi concluded "... that the initiative was not narrowly tailored to achieve a legitiate state interest and unduly constricts the opportunities for free expression." Torrisi said that he realied that the people of Alaska did pass this initiative and that it presued its constitutionality, but..."in the end, however, it appears that the ain purpose of the initiative was to try to change people's behavior; to ake nonenglish speakers learn the language ore quickly. But both the Aerican experience and a world view teach otherwise in a free society, laws about language don't accoplish uch." In addressing the free speech rights of public eployees and as to what liitations can be placed on governent in this regard, Torrisi quoted Justice Rabinowit of the Alaska Supree Court who stated "... The United States of Aerica, and Alaska in particular, reflect a pluralistic society, grounded upon such basic values as the preservation of axiu individual choice, protection of inority sentients, and appreciation for divergent lifestyles. The specter of governental control of the physical appearances of private citiens, young and old, is antithetical to a free society, contrary to our notion of a governent of liited powers, and repugnant to the concept of personal liberty." In addressing this question, Torrisi concluded that public officials and eployees do have free speech rights and the Official English Initiative interferes with those rights. NARF attorney Heather KendallMiller and forer NARF attorney Eric Johnson, joined by attorneys fro the Alaska Civil Liberties Union and the North Slope Borough Law Departent, claied that Alaska's Englishonly law is unconstitutional because it violates constitutional rights to free speech, equal protection, and due process, and argued those pending otions for suary judgent on October 12, NARF had filed the Alakayak case in February 1999, in the state superior court in Anchorage, on behalf of twentyseven individual plaintiffs who sought an order declaring that Englishonly Ballot Measure Six is unconstitutional. On March 3, 1999, Alaska State Superior Court Judge Fred Torrisi granted a preliinary injunction that enjoined the State of Alaska fro the operation and enforceent of Alaska's Official English Initiative, which was passed by state voters in Noveber PAGE 12

13 Heather KendallMiller explained that NARF brought this lawsuit "to protect the rights of Alaska Native villages to freely choose, shape and control the fors of counity selfgovernance that exist in their local counities." Because Alaska Native villages exercise their powers of counity selfgovernance through nuerous structures, both tribal and state, any of the ost basic powers of counity selfgovernance in Native villages are exercised through institutions established under state law, such as city governents, school districts, and the various citien advisory boards that provide local input on state agency decisions. As KendallMiller explained, "Alaska Native villages have a fundaental counity right to govern theselves through whatever structures they ay choose, which necessarily includes the right to do so in the Native languages of their counities, the only languages any of their citiens can understand." The teporary restraining order and preliinary injunction had becoe necessary because a nuber of the Alakayak plaintiffs had eetings of their city governents or school functions scheduled for after the date the law would have gone into effect. She added that the potential for state enforceent of the Englishonly law against these plaintiffs after that date "threatened the ost basic sovereign rights of these counities to eaningful selfgovernent." The "English Only" initiative was written in very broad ters, and would have had a ajor ipact upon Alaska Natives, had it gone into effect. Unlike ost other official English easures that are priarily sybolic, this easure would have prohibited the use of any language except English in virtually all governental functions and actions. The easure applied to "the legislative and executive branches of the State of Alaska and all political subdivisions, including all departents, agencies, divisions and instruentalities of the State, the University of Alaska, all public authorities and corporations, all local governents and departents, agencies, divisions, and instruentalities of local governents, and all governent officers and eployees." The easure also contained a private cause of action that allowed any person to bring suit against a governent entity to enforce the provisions of the act. Thus, a nonnative resident of Anchorage would have been able to bring an enforceent action to require a Yupikspeaking counity in Southwest Alaska, to force it to conduct its city business in English, and English only. The ipact of this statute would have been direct and iediate, had it gone into effect in March For exaple, of the 226 Native villages in Alaska, over 100 have fored unicipal governents. It is very coon for city officials to conduct business in Yupik, Inupiat, or Athabaskan languages. If this initiative had becoe law, they would no longer have been able to do so. And, if they had, they would have been law breakers and potentially subject to suit. Moreover, those city officials who do not speak English as a first language (and there are any in rural Alaska), would have effectively been excluded fro participating in local governent. The breadth of this easure ade it all the ore unconstitutional, since it violated both free speech and the constitutional right to participate in and have access to governent. Because the easure extended to all state eployees, it would have prohibited an Inupiat school teacher and a onolingual Inupiatspeaking parent fro speaking in Inupiat about a child's education. It would have also precluded a discussion in a language other than English between public eployees and citiens seeking uneployent or worker's copensation benefits, or access to fair housing or public assistance, or inforation with respect to child support, child welfare, foster care placeent, Indian Child Welfare Act atters, or to redress violations of those rights. In short, the easure would have had a chilling effect on all Native languages, which is why NARF filed this lawsuit, and secured this decision to keep the law fro taking effect. It is not yet known if the state will appeal. 0 == ::C: rn :s= :I rn :! g :Z: UJ.., C:!ii PAGE 13

14 = =... en Dr. Clinton M. Pattea, Dr. Clinton M. Pattea, I President of the Fort McDowell Yavapai Nation i of Ariona since 1986, was elected to the Native ;;: Aerican Rights Fund Board of Directors, replacing Rebecca Tsosie who copleted three cc ters on the Board. The Fort McDowell Reservation is the hoe to the Yavapai, l:ic MohaveApache and Apache Indians. Dr. Pattea E graduated with a degree in Business cc Adinistration in 1959 fro Northern Ariona University. In 1999, he was recognied with an I.I.I > Honorary Doctorate Degree fro Northern Ariona University for his "... continued co =c Z itent to education for his Tribe, for all Indians, and for nonindians as well..." Dr. Pattea began his public service in 1960 as an elected Tribal Council eber, which has continued to the present tie. He witnessed firsthand any of the obstacles faced by his people: low educational attainent, uneployent and lack of sufficient social and health services. But he knew that his hoeland, rich in culture and history, held uch potential. His tenure in tribal leadership encopassed two historic events which solidified the Tribe's sovereignty. First, the Tribe successfully defeated NEW BOARD MEMBER a proposal for the construction of Ore Da to be built at the confluence of the Verde and Salt Rivers a project which would have forced the counity off of what little reained of their ancestral hoeland. The ost crucial episode of Dr. Pattea's Presidency occurred on May 12, 1992 when FBI agents invaded the Fort McDowell Casino, seiing the counity's 348 gaing achines. Counity ebers quickly fored a blockade of cars, trucks and achinery, preventing the oveent of the Agents and achines. The Fort McDowell Casino had been waiting for several years to sign gaing copacts with the state governent, which was opposed to Indian gaing at the tie. With a standoff in effect, Dr. Pattea successfully negotiated and signed a copact with the Governor of Ariona, ensuring the future of Indian gaing and tribal sovereignty for Indian tribes in Ariona. Since this tie, Dr. Pattea has overseen the extensive creation of social, health, environental and educational services for his people. The NARF Board of Directors and staff look forward to working with Dr. Clinton Pattea. 0 National Indian Law Library The National Indian Law Library (NILL) located at the Native Aerican Rights Fund in Boulder, Colorado is a national public library serving people across the United States. Over the past thirty years NILL has collected nearly 10,000 resource aterials that relate to federal Indian and tribal law. The Library's holdings include the largest collection of tribal codes, ordinances and constitutions in the United States, legal pleadings fro ajor Aerican Indian cases; law review articles on Indian law topics; handbooks; conference aterials; and governent docuents. Library users can access the searchable catalog which includes bibliographic descriptions of the library holdings by going directly to: or by accessing it through the National Indian Law Library link on the Native Aerican Rights Fund website at Once relevant aterials are identified, library patrons can then choose to review their selected aterials, request ailed copies for a noinal fee, or borrow aterials through interlibrary loan. In addition to aking its catalog and extensive collection available to the public, the National Indian Law Library provides reference and research assistance relating to Indian law and tribal law. NILL serves a wide variety of public patrons including attorneys, tribal and nontribal governents, Indian organiations, law clinics, students, educators, prisoners and the edia. The National Indian Law Library is a project of the Native Aerican Rights Fund and is supported by private contributions. For further info ration about NILL, visit: or contact Law Librarian David Selden at or dselden@narf.org. Local patrons can visit the library at 1522 Broadway, Boulder, Colorado. 0 PAGE 14

15 THE NATIVE AMERICAN RIGHTS FUND The Native Aerican Rights Fund (NARF) was founded in 1970 to address the need for legal assistance on the ajor issues facing Indian country. The critical Indian issues of survival of the tribes and Native Aerican people are not new, but are the sae issues of survival that have erely evolved over the centuries. As NARF is in its thirtysecond year of existence, it can be acknowledged that any of the gains achieved in Indian country over those years are directly attributable to the efforts and coitent of the present and past clients and ebers of NARF's Board and staff. However, no atter how any gains have been achieved, NARF is still addressing the sae basic issues that caused NARF to be founded originally. Since the inception of this Nation, there has been a systeatic attack on tribal rights that continues to this day. For every victory, a new challenge to tribal sovereignty arises fro state and local governents, Congress, or the courts. The continuing lack of understanding, and in soe cases lack of respect, for the sovereign attributes of Indian nations has ade it necessary for NARF to continue fighting. NARF strives to protect the ost iportant rights of Indian people within the liit of available resources. To achieve this goal, NARF's Board of Directors defined five priority areas for NARF's work: (1) the preservation of tribal existence; (2) the protection of tribal natural resources; (3) the prootion of huan rights; (4) the accountability of governents to Native Aericans; and (5) the developent of Indian law. Requests for legal assistance should be addressed to NARF's ain office at 1506 Broadway, Boulder, Colorado NARF's clients are expected to pay whatever they can toward the costs of legal representation. NARF's success could not have been achieved without the financial support that we have received fro throughout the nation. Your participation akes a big difference in our ability to continue to eet everincreasing needs of ipoverished Indian tribes, groups and individuals. The support needed to sustain our nationwide progra requires your continued assistance. 0 == c: : == n : C) ::.. en "'" c Cll NARF's website awarded Standard of Excellence by the Web Marketing Association. Visit NARF's award winning website at NA RF Annual Report. This is NARF's ajor report on its progras and activities. The Annual Report is distributed to foundations, ajor contributors, certain federal and state agencies, tribal clients, Native Aerican organiations, and to others upon request. Editor, Ray Raire (raire@narf.org). Tax Status. The Native Aerican Rights Fund is a nonprofit, charitable organiation incorporated in 1971 under the laws of the District of Colubia. NARF is exept fro federal incoe tax under the provisions of Section 501 C (3) of the Internal Revenue Code, and contributions to NARF are tax deductible. The Internal Revenue Service has ruled that NARF is not a "private foundation" as defined in Section 509(a) of the Internal Revenue Code. The NARF Legal Review is published biannually by the Native Aerican Rights Fund. Third class postage paid at Boulder, Colorado. Ray Raire, Editor (raire@narf.org). There is no charge for subscriptions, however, contributions are appreciated. Main Office: Native Aerican Rights Fund, 1506 Broadway, Boulder, Colorado ( ) (FAX ). Washington, D.C. Office: Native Aerican Rights Fund, 1712 N Street, NW, Washington, D.C ( ) (FAX ). Alaska Office: Native Aerican Rights Fund, 420 L Street, Suite 505, Anchorage, Alaska ( ) (FAX ). PAGE 15

16 Wallace E. Coffey, Chairan... Coanche Mary T. Wynne, Vice Chairwoan... Rosebud Sioux Jaie Barriento... Ottawa/Chippewa Billy Cypress... Miccosukee John Gonales... San Ildefonso Pueblo Nora Helton... Fort Mojave Karlene Hunter... Oglala Lakota Kenneth P. Johns... Athabascan E. Ho 'oipo Pa... Native Hawaiian Clinton Pattea... Fort McDowell Yavapai Sue M. Shaffer... Cow Creek Band of Upqua Ernie L. Stevens, Jr.... Wisconsin Oneida Michael P. Willias... Yup'ik Executive Director: John E. Echohawk... Pawnee VOLUME 27, NO. 1 WINTER/SPRING 2002 NARF Legal Review 1506 Broadway Boulder, CO NonProfit Org. U.S. Postage PAID Boulder, Colorado Perit No. 589 PRfNTED ON RECYCLED PAPER