National Indian Law Library

NILL No. 010052/1992

NATIONAL INDIAN LAW LIBRARY CELEBRATES ITS 20THANNIVERSARY

by deana harragarra waters

The National Indian LawLibrary's first twenty years havegenerated an awareness of itsimportance. The uniquedevelopment and exceptionalsuccess of the National IndianLaw Library throughout twodecades is the product of manytalented minds, and earnesthard work. Of equal impor­tance is the work that lies aheadwhich compels a permanentcommitment by the NationalIndian Law Library, and its sup­porters, to the mission on whichit has embarked.

The Need - a National IndianLaw Program

The late 1960's saw the estab­lishment of federally fundedlegal service programs as partof the national War on Poverty.The goal of these programs wasto provide representation topoor and disadvantaged

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people. Through the work ofthese legal service programs,the special needs of Indianpeople became apparent. Theconsequent necessity for a na­tional program to coordinate

and provide this assistanceemerged, for legal servicesprograms could not possiblyhandle all the issues affectingIndian people. The nationneeded a program dedicated to

Summer 1992

,

serving the legal needs of In­dians, and in the Fall of 1970,the Native American RightsFund became that program.

The accomplishments of theNative American Rights Fundsince 1970 have confirmed thenecessity for national legal rep­resentation for Indians. TheNative American Rights Fundstrives to protect the most im­portant rights of Indian people,within the limits of availableresources. To achieve this, itsfirst Steering Committee (latercalled the NARF Board ofDirectors) defined five priorityareas for the Native AmericanRights Fund's work: thepreservation of Tribal exist­ence; the protection of Tribalnatural resources; the promo­tion of human rights; the ac­countability of governments toNative Americans; and thedevelopment of Indian law. Tosecure the fulfillment of thefifth priority, the systematicdevelopment of Indian law, theNative American Rights Fundbegan a special project, the Na- "tional Indian Law Library.

The Vision - a library devotedexclusively to Indian Law

The Native American RightsFund was looking for a way tounite the field of Indian legaladvocacy. It did this by makingthe initial decision to providethe highest quality repre­sentation in the most criticalareas. During the first monthsof the Native American RightsFund's work, its attorneys andsupporters spoke often of the

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critical need for a centralclearinghouse on Indian law.

The Native American RightsFund staff discovered that inthe past, no single person orinstitution had been aware ofall the lawsuits filed affectingIndians. There had been noconcerted effort in com­municating the existence ofsuch lawsuits, or other sig­nificant developments in In­dian law, and this had beendetrimental to the restorationof Indian rights. The efforts ofthose few attorneys who hadbeen involved were uncoor­dinated, and the results of theirlitigation had not been knownto others working in the field.Many attorneys had been un­able to represent Indians due tothe difficulty of researching In­dian law and tracking currentdevelopments. The task hadeither proven too great for theattorney, or it was cost prohibi­tive for the Indian client.

There were also dozens oflegal cases being filed by Indianlegal service programs onreservations from California toMaine. These Indian legal ser­vice programs were funded bythe Office ofEconomic Oppor­tunity. The attorneys workingfor these programs wereprimarily young, inex­perienced, and overworked. Tocomplicate their situation, theyhad inadequate time to re­search issues and communicatewith each other. The conse­quence was a three-fold in­crease in the number of Indianlaw cases being litigated. After

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more than two hundred years ofsporadic involvement with thewhite man's judicial system,this increase happened in lessthan five years.

At this time- the standardcommercial reporting systemfor Indian case law was archaic.To have less than forty subjectheadings in a field of law that isa quagmire of treaties, statutes,judicial, and administrativerulings was an impediment.Consequently, even publishedor reported court decisionswere relatively inaccessible tolawyers practicing Indian law.What further complicated thesituation for legal serviceprograms was their inacces­sibility to large law libraries.They simply could not afford tosubscribe to the expensivecourt reporters and digests thatneeded to be scanned forrelevant Indian law decisions.

Early in its existence, the Na­tive American Rights Fundbegan to develop the conceptof a central clearinghouse forIndian legal materials. Theneed for such a project wasbrought into sharp focus by theNative American Rights Fundattorneys who correspondedand met with Native Americanlaw students, law professors,legal services attorneys, andmembers of the private bar whorepresented Indian Tribes.What resulted was the NativeAmerican Rights Fund's desireto join with others working inthe field ofIndian law, to insureits orderly development. Ap­propriately, the idea of a Na-

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tional Indian Law Library tocoordinate these efforts wasborn.

The Action - The National In­dian Law Library

The Steering Committee andstaff of the Native AmericanRights Fund felt that somedevelopment of a library, na­tional in scope, had to proceed,despite the lack of specificfinancial support for such anendeavor. In June 1971, PeterJ. Aschenbrenner joined theNative American Rights Fundattorney staff. He previouslyheld a teaching assistantshipfor an Indian law course atBoalt School of Law, Univer­sity of California at Berkeley.In this capacity, he hadprepared a casebook of Indianlaw materials for use by law stu­dents taking the course. As anattorney, Mr. Aschenbrennerwas spending his time develop­ing what was soon to becomethe Native American RightsFund's general index to Indianlaw. Due to the vast quantity oflaws affecting the lives of In­dians, the Index required alarge number of subject head­ings to provide sufficient accesspoints to anyone using it. Theobjective was quick access tothose cases which readily re­lated to the problem area con­fronting the Indian legalpractitioner. The result wasThe General Index to IndianLaw, encompassing more than380 legal subject headings. Itwas the key to what would be­come the National Indian LawLibrary collection. The cost of

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the considerable staff tjmeused in its development wassupported by the Ford Founda­tion.

As work on the NativeAmerican Rights Fund's TheGeneral Index to Indian Lawtook shape, a simultaneous ef­fort was made to establish amethod of collecting, class­ifying and filing those legalmaterials the Native AmericanRights Fund already possessed.In August of 1971 Melody Mac­Kenzie, a Hawaiian Native, washired as the first librarian toassist attorneys in building a re­search collection. Workingalone and surrounded by stacksof legal paperwork, a newlyprinted batch of National In­dian Law Library stationerywas ordered. The stationeryhelped to keep morale up at atime when there were no realguarantees that the rapidlyevolving library would some­day become an official entity.Once again, the FordFoundation's generous supportand encouragement permittedthe staff to begin laying vitalgroundwork for what was to bethe National Indian LawLibrary.

Throughout 1971, DavidGetches, the Native AmericanRights Fund's Founding Direc­tor, met with a representativeof the Carnegie Corporation ofNew York about the NativeAmerican Rights Fund's needfor assistance. On May 23,1972, the Carnegie Corpora­tion of New York announcedthat it had made a three-year

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grant to the Native AmericanRights Fund for the develop­ment of the National IndianLaw Library. Alan Pifer, Presi­dent of Carnegie Corporation,when announcing the $119,000grant, said, ''The National In­dian Law Library is already wellon its way to being the bestsource of documents on Indianlaw in the country. We arepleased to help it develop intoa research and informationcenter with a nation-widereach. We hope its expandedservices will encourage morelawyers to represent Indianclients and thereby secure jus­tice for Native Americans nowinadequately served."

As one of the first stepstoward establishing a lawlibrary, Native AmericanRights Fund staff membersvisited the National Clearin­ghouse for Legal Services inChicago, Illinois. This Nation­al Clearinghouse is widelyknown for providing com­prehensive services to lawyerspracticing poverty law, and inthis capacity had developed acollection of Indian relatedcases. In June, 1972, the Na­tional Indian Law Library, withthe assistance and support ofthe Office ofEconomic Oppor­tunity, officially assumed theIndian law functions of the Na­tional Clearinghouse for LegalServices with the transfer toBoulder of all Indian law docu­ments in their collection.

In the Summer of 1972, the·"',J,,4-;Y".o. A """.0"";1""")"'" 0 ;,....1,+('" t::;''I'1nrl'J. "taLlV,,", rli..11YJ.l\"'Ql1 .... '.1.5.1.1 ...." .... U.l.lU

contacted the staffof the Indian

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I

Claims Commission. Up tothis point, the decisions of theIndian Claims Commissionwere largely inaccessible to at­torneys and Tribes. A few in­complete collections had beenassembled but were nevercatalogued nor printed for dis­tribution. An agreement wasreached whereby the IndianClaims Commission wouldprovide a complete set ofdecisions to the NativeAmerican Rights Fund. In ex­change, the Native AmericanRights Fund would assume theresponsibility for cataloging,indexing, printing and dis­tributing the Indian ClaimsCommission Decisions. PeterHrobsky was the first NationalIndian Law Library staff mem­ber hired to work on the IndianClaims Commission project.

Joseph Membrino joined theNational Indian Law Librarystaff in 1972 as its first legaladvisor. He filled the dutiesleft by the departure of Peter J.Aschenbrenner from the Na­tive American Rights Fund'sattorney staff. By the end ofSummer 1972, the National In­dian Law Library had a staff ofthree. They were Melody Mac­Kenzie, Peter Hrobsky, and

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Joseph Membrino. They as­sumed the responsibility forfilling the increasing number ofrequests for materials and re­search from the library patrons.

Since the National IndianLaw Library's inception, one ofits objectives had been the pub­lication of a catalogue of allholdings, which would serve asan effective litigation tool whenin the hands of attorneys. Thusany attorney who could not visitthe National Indian LawLibrary, but wanted to knowwhat was available in any par­ticular area of Indian law,would be able to request librarymaterials.

Volume one of the NationalIndian Law Library Subject andDocument Catalogue wasprinted in July 1973. TheCatalogue was divided intothree sections. The first sec­tion listed the National IndianLaw Library holdings by sub­ject matter headings. Thesecond section listed eachholding by its classificationnumber (later known as NILLnumber), a list of all pleadingsin each law case, the state inwhich the action arose, thecourt, the Tribe, the date of thefirst pleading, and a descriptionof the law case. The third sec­tion listed the National IndianLaw Library's holdings in al­phabetical order.

In 1974, volume two of theNational Indian Law LibrarySubject and DocumentCatalogue was printed. TheNative American Rights Fund

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Announcements (later knownas The NARF Legal Review)listed the National Indian LawLibrary's holdings in its volume1, number 1, 1972 issue throughits volume 3, number 2, part 2,1975 issue. This practice wasdiscontinued with the Fall 1975publication of the first cumula­tive edition of the National In­dian Law Library Catalogue. Itsold for $20.00.

The Responsibility • meetingthe information needs

A major part of meeting theNative American RightsFund's commitment to Indianlaw development has been thecontinued operation of the Na­tional Indian Law Library, arepository and clearinghousefor materials on NativeAmerican law. Today the Na­tional Indian Law Library istwenty years old. It's historyhas demonstrated a desire tomeet the information needs ofthose involved in researchingand litigating Indian law.

Perhaps the most importantaspect of the National IndianLaw Library, as far as itspatrons are concerned, is thereference service. Included inthe reference service are sub­ject matter searches throughthe National Indian LawLibrary collection, compila­tions of bibliographies, com­puter databases for documentretrieval, legislative histories,referrals, and legal research.The National Indian LawLibrary staff performs othertraditional library tasks. These

Summer 1992

include acquiring new items foraddition to the National IndianLaw Library collection and theoriginal cataloging of specialitems collected.

The National Indian LawLibrary also performs a non­traditional library function. InSeptember, 1972, the NativeAmerican Rights Fund pur­chased a printing press,primarily for publishing the In­dian Claims CommissionDecisions, the NARF An­nouncements, and The NationalIndian Law Library Catalogue.These items were sold throughthe National Indian LawLibrary. The Native AmericanRights Fund no longer has theprinting operations; however,the National Indian LawLibrary has continued to sellIndian law books from variouspublishers.

The responsibility for provid­ing information in a timelyfashion is the shared respon­sibility of each National IndianLaw Library staff member.The National Indian LawLibrary has developed a patronbase, which highlights thelibrary's reliability. Themajority of this patron base islocated outside Boulder,Colorado, thus the telephoneprovides a convenient methodfor reference, referral and re­search in Indian Law. The Na­tional Indian Law Library isn'tso much about storing informa­tion as it is about finding it forits patrons.

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The people who use tqe Na­tional Indian Law Library's col­lection are a diverse group.The most obvious patronsbelong to the Native AmericanRights Fund itself. Included inthis group are the NativeAmerican Rights Fund Boardof Directors, the attorneys,professional staff, and supportstaff from all three offices.Other patrons include formerNative American Rights Fundstaff, Indian Legal Service at­torneys, attorneys in privatepractice, Tribal court person­nel, Tribal governments, stategovernments, Indian organiza­tions, members of the newsmedia, politicians, prisoners,libraries, and scholars of allages. It is this last group ofpatrons, with their written re­quests for "everything you haveon Indians," that give the Na­tional Indian Law Library staffa much needed smile.

The Significance - collectionand accomplishments

The National Indian LawLibrary is the only law libraryspecializing in legal practicematerials which are essentialfor practitioners of Indian law.Active collection of ephemeraltype material is totally unique.The National Indian LawLibrary therefore surpassesother law libraries with out­standing Indian legal collec­tions. The reason for this canbe found in the National IndianLaw Library's mission, 'To be anational repository for Indianlegal materials and resources."Other law libraries do not have

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the same rationale for collect­ing this type of legal informa­tion. Within the NationalIndian Law Library collection,there are over 16,000 legalpleadings and opinions in vir­tually every major Indian casesince the 1950's.

The National Indian LawLibrary is the only comprehen­sive lending collection of pastand present Tribal governmentdocuments. This lending col­lection began in 1988 and nowconsists ofTribal constitutions,codes, ordinances, and resolu­tions numbering in excess of700. It has established an in­valuable communications net­work for those involved in thedrafting and updating of Tribalgovernment documents. TheNational Indian Law Librarynow has working documents onalmost every conceivable sub­ject, from declarations of self­determination to sewagedisposal, adoptions of aUniform Commercial Code,off-reservation regulations,conservation and pow-wow or­dinances. Requests forsamples of Tribal governmentdocuments are made as fre­quently as three times a day.The National Indian LawLibrary has filled an urgentneed as the single repositorywhere Tribal governmentsroutinely send all documents.

The National Indian LawLibrary is the only clearin­ghouse actively collecting In­dian law related documents.There are well over 4,000 ofthese documents in the collec-

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tion. The National Indian LawLibrary widely collects all In­dian law-related material in­cluding books, pamphlets,federal government docu­ments, state government docu­ments, scholarly reports,journal articles, newspaper ar­ticles, student reports, and lawreviews. The National IndianLaw Library is unique becauseit is able to provide numerousaccess points for all these In­dian law related materialsthrough the subject matterindex of the National IndianLaw Library Catalogue.

The National Indian LawLibrary is an invaluableresource for attorneys as­sociated with Indian legal ser­vice programs, and Tribalattorneys. Due to thegeographic isolation of mostIndian legal service programsand Tribal governments, manywould be without access to ade­quate law libraries if it were notfor the existence of the Nation­al Indian Law Library. SinceIndian legal service programsreceive inadequate funding, allof the National Indian LawLibrary services, includingphotocopy and postage costs,are fee-waived to them.

The twenty year history of theNational Indian Law Libraryhas demonstrated its ability tomeet the information needs ofthose involved in litigating In­dian law. Since its inception,the National Indian LawLibrary remains at the heart ofIndian legal practice.

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The Future - the 21st Century

The continued existence ofthe National Indian LawLibrary is a realization that last­ing achievements are impos­sible without a vision, anddreams do not become realwithout action and respon­sibility. A critical need for thefuture is the continued reas­sessment and restatement ofthe role the National IndianLaw Library will have in thedevelopment of Indian law.Change complicates things, yetit is inevitable. Cherokeehumorist Will Rogers oncesaid, "even ifyou're on the righttrack, you'll get run over if youjust sit there."

The 21st century will be thebest for those who learn tobalance vision, action, andresponsibility. The futurebelongs to those working in In­dian law, who embrace thepotential of their vision andrecognize the realities of con­strained resources, and whofind new solutions that permitdoing more with less. The Na­tional Indian Law Library hasbeen finding solutions fordoing more with less for quite awhile.

After twenty years of officialexistence, special thanks tomany people are in order. Theconcept of a national lawlibrary was cultivated by a fewtalented minds. The creationand development of the Na­tional Indian Law Library wasaccomplished by the work ofmany highly motivated and

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dedicated individuals. Finally,warmest appreciation goes tothe excellent staff of libraryworkers who are now here.(deana harragarra waters is theLaw Librarian for the NationalIndian Law Library)

Catawba TribePrepares To Sue

Thousands InSouth Carolina

NARF, on behalf of theCatawba Tribe of SouthCarolina, and in seeking com­pensation for the loss of144,000 acres of the Tribe's an­cestralland in South Carolina,is now preparing to file lawsuitsagainst 30,000 individualproperty owners unless a settle­ment is reached with the Stateor unless the Fourth U.S. Cir­cuit Court of Appeals reversesa District Court ruling and al­lows the Catawba suit to be aclass action proceeding. Withthe statute of limitations dead­line fast approaching on Oc­tober 19, 1992, NARFattorneys will have the paper­work for the suits completed bymid-August. Once filed, it isbelieved that these suits will beunprecedented in U.S. historyas the largest mass of suits to befiled at the same time.

Summer 1992

Reaching a settlement may bedifficult if not impossible.Crawford Clarkson, SouthCarolina Tax Commissionerand chairman of the governor'sadvisory committee on theCatawba claim, stated thatmore than money, theproblems of Indian jurisdictionon the reservation remain thebiggest roadblock to achievingthe settlement. The State is in­sistent that it have law andorder and regulatory jurisdic­tion on the reservation, con­trary to the practice of Tribalsovereignty.

Catawba Chief Gilbert Bluestated that the Tribe has no in­tention ofstripping landownersof their property if the Tribewins their 12-year-old landclaim suit. The Tribe is seekinga monetary settlement to ex­pand its reservation to carry oneconomic enterprises and pro­vide residential opportunitiesfor its citizens, to educateCatawba children and to makeinvestment decisions for theTribe's long term survival.

In 1975, encouraged by legalvictories of other Eastern In­dian tribes, the Catawba Triberequested the Native AmericanRights Fund to evaluate itsclaim to 225 square miles in andaround Rock Hill, SouthCarolina. NARF attorneysconducted legal and historicalresearch for more than a yearand in 1976 concluded that theTribe possessed a strong claim.But because of the potentiallyrlic;:nlntiup pffprt of ~ bWC;:llit ~<;:_ .... v ..... '-A-.t"' ......... - _ ......__ .............. - ..... _ ...... - .....,_......

well as the probability that a

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claim of this magnitude wouldultimately be settled by Con­gress, the Tribe determinedthat it would first explorewhether a satisfactory settle­ment of its claim could beachieved.

The Catawba Claim is basedon 1760 and 1763 Treaties withthe King of England, which es­tablished the Catawba Reser­vation. In 1840, the State ofSouth Carolina, in violation oflong-standing federal law thatprohibited states from acquir­ing any interest in Indian landwithout the express consent ofCongress, swindled the Cataw­ba Tribe out of its reservation.In return for promises by theState to purchase a new reser­vation for the Tribe either closeto the Cherokees in NorthCarolina or in an unpopulatedarea of South Carolina, theTribe agreed to sell its lands tothe State. But the State did nothonor its bargain and failed topurchase a new reservation forthe Tribe. Instead, in 1843, itpurchased a one-square miletract of land located squarely inthe middle of the 1763 TreatyReservation that the Tribe hadceded almost three years ear­lier. By the 1880's, the Tribehad begun its efforts to resolveits claim and since that time hadcontinually appealed to theState and Federal Govern­ments for a just settlement.

After NARF's initial researchto establish the legal validity ofthe claim, the Tribe submitteda litigation request to theDepartment of the Interior in

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1976 asking the United Statesto undertake legal action torecover the lands to the 1763Treaty Reservation. In the fallof 1977, the Interior Depart­ment Solicitor asked the Jus­tice Department to institutelitigation on the Tribe's behalf,but not before settlement op­tions had been exhausted.

Settlement talks began in1977, but the State was unwill­ing to agree to a modest settle­ment proposal. The impassecontinued through 1979 and in1980, the Tribe filed suit inFederal District Court seekingto recover possession of its1763 Treaty Reservation, aswell as historic trespassdamages. The complaintnamed 79 defendants, includ­ing the State of South Carolinaand a number of corporate andlarge private landowners, asrepresentatives of a defendantclass comprising roughly 30,000people who claim title to theReservation lands. In June of1982, the Federal DistrictCourt dismissed all the Tribe'sclaims agreeing with the State'smotion that state law statutes oflimitations applied to theTribe's claim. The Tribe ap­pealed to the Fourth CircuitCourt of Appeals and in Oc­tober of 1983, the Circuit Courtreversed the District Court,holding that the Tribe's Claimwas not barred. In 1986, theUnited States Supreme Courtreversed the Court of Appeals,holding that State statutes oflimitations did apply to theTribe's claim, The Sunreme- - -.l

Court remanded the case to the

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Court of Appeals to determinewhat effect their applicationwould have on the Tribe'sclaim. In January, 1989, theCourt of Appeals ruled thatunder South Carolina law, theTribe's claim was barred onlyas to those parcels which hadbeen adverselypossessed for 10continuous years during the 18year period. For those landsthat had not been adverselypossessed for 10 full years bythe same person during the 18­year period, the Tribe's claimremained valid. The Court ofAppeals then sent the case backto the District Court.

The District Court dismissedthe Tribe's claim against 29 ofthe 79 named defendants inJuly of 1990, and releasedabout 75% of the land theyclaimed from the suit on thegrounds that those lands hadbeen adverselypossessed for 10years by the same person. TheTribe again appealed to theFourth Circuit. In February1991, the District Court deniedthe Tribe's motion to certify adefendant class, ruling that theTribe's claim against the 30,000or so defendants was barred bythe State statute of limitations.The Tribe also asked the Courtof Appeals to reverse thatdecision and on February 4,1992, the Court of Appealsheard oral arguments on bothcases. No decision has yet beenissued.

In the case of Catawba Tribev. the United States, the Tribe___ ..J ~1 TT', 'I""sueu rile unneo ;)tates torecover the value of those lands

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to which the Tribe's claim isbarred by the rulings in Cataw­ba v. South Carolina. InAugust, 1991, the U.S. ClaimsCourt granted theGovernment's motion to dis­miss the Tribe's case based onthe expiration, in 1951, of thestatute of limitations in the In­dian Claims Commission Act.In May of 1992, NARF attor­neys presented oral argumentin the U.S. Court ofAppeals forthe Federal Circuit, appealingthe lower court's dismissal ofthe Tribe's claim. No decisionhas yet been issued.

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Native AmericanReligions FreedomLegislation Update

Birth of an Historic Native AmericanHuman Rights Movement

War clouds are gathering inIndian country over the lack oflegal protection for the free ex­ercise of religion by traditionalNative people under theAmerican Constitution andlaws. This growing humanrights crisis -- presently seen inthe bulldozing of tribal holyplaces by federal agencies andin a felony prosecution of anelderly member of the NativeAmerican Church in Ok­lahoma -- was created by recentSupreme Court decisions deny­ing First Amendment protec­tion for tribal religiouspractices. NARF and otherconcerned Native groups, In­dian tribes and traditionalleaders issued a call in 1991 fora new federal law to protect Na­tive American religiousfreedom.

In response, Senator Inouye,Chairman of the Senate SelectCommittee, circulated draftamendments to the AmericanIndian Religious Freedom Actin August, 1991, to triballeaders for their review andcomment. NARF assisted inbringing this legislativeproposal, still under review byNARF and other proponents,to the attention of Indiancountry, NARF clients, Nativegroups and the Tribal Leaders'Forum. Much public educa­tion work and coalition build-

Summer 1992

ing was undertaken by NARFand other members of theReligious Freedom Coalitionfounded by NARF, the Nation­al Congress of American In­dians and the Association onAmerican Indian Mfairs.

By the end of 1991, Indiancountry was poised to begin amajor legislative effort to re­store Native Americanreligious freedom to the Bill ofRights. A tribal "ReligiousFreedom Summit" was held inAlbuquerque, N. M., under theco-sponsorship of PresidentPetersonZahofthe Navajo Na­tion and Patrick Lefthand ofthe Confederated Salish andKootenai Tribes, which was at­tended by over 500 spiritualand traditional leaders. Theissue was placed on the "Legis­lative Agenda of the 1990s" es­tablished by the TribalLeaders' Forum as a majorlegislative item. Likewise,religious freedom legislationwas declared by the NationalCongress of American Indiansto be its number one legislativepriority for 1992, with over 80Tribes and Native organiza­tions calling on Congress tohold hearings on this humanrights problem. Supporting theTribes is a growing coalition ofmajor environmental, humanrights, church and entertain­ment groups:

Coalition Members

American Civil LibertiesUnion

Americans for IndianflnnnTtl1n-itu'"'t'yv.l. "u.J...I..I.")

Apache Survival Coalition

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Association on AmericanIndian Mfairs

Confederated Salish andKootenai Tribes

Crow Indian PeyoteCeremonies

Cultural ConservancyFriends of the EarthHeart of the Earth Survival

SchoolHollywood Policy Center

FoundationHONORKeepers of the TreasuresLearning CircleMedicine Wheel CoalitionNational Audubon SocietyNational Conference of

Christians and JewsMinnesotalDakotaRegion

National Congress ofAmerican Indians

National Indian EducationAssociation

Native American Church ofNavajoland

Native American Church ofNorth America

Native American Church ofSouth Dakota

Native American Church ofWyoming

Native American ReligiousProject of the NativeAmerican Church

Native American Rights FundNative Lands InstituteNatural Resources Defense

CouncilNavajo Nation Corrections

ProjectNavajo Nation (In Principle)Sealaska CorporationSeventh Generation FundSierra ClubStudent Environmental

Action Coalition

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United Methodist Church,General Board

Wilderness SocietyWinds of Life

In March of 1992, the SenateSelect Committee on IndianMfairs held a field oversighthearing in Portland, Oregon, toreceive testimony on barriersto the free exercise of religionby Native witnesses. This high­ly publicized hearing, attendedby over 500 Native Americansand concerned supporters,began the historic Indianhuman rights movement.Other hearings in California,Arizona and New Mexico willbe held in November, followedby additional hearings in otherparts of the country in Decem­ber and January, 1993.

At this stage, it is expectedthat comprehensive legislationwill be introduced in January,1993. Much work remains tobe done prior to introduction ofthe legislation in Congress.NARF and other coalitionmembers are focusing effortson public education and coali­tion building necessary to bringabout fundamental social chan­ges in attitudes toward NativeAmericans and the land itselfthat will reverse 500 years ofreligious intolerance and dis­crimination against America'sindigenous religions.

For further information aboutthe Native American humanrights movement for nationalreligious freedom legislation,contact: NAFY StaffAttorney,Walter Echo-Hawk.

Summer 1992

Freedom ofWor­ship Protection

Needed ForAmerican Indian

PrIsoners

Native Americans are con­fined in federal and stateprisons in highly dispropor­tionate numbers due to factorssuch as alcoholism, poverty,discrimination and the socialanomie of living in two worlds.Over 7,000 Native Americansare incarcerated in 23 stateswith significant Native popula­tions.

The primary human rightsproblem of these prisoners isthe lack of freedom to practicetribal religions on a basis com­parable to that affordedprisoners of other, more widelyknown religions. All prisonsprovide inmates of Judeo­Christian religions withchaplains, chapels, religiousobjects and a full array ofreligious services, but typicallydeny similar worship byAmerican Indian prisoners.

Traditional religions are criti­cal to the cultural survival ofIndian tribes, because -- similarto the Amish -- religion is theglue that holds Native com­munities together and the un­derpinning for Indian cultureitself. For Native prisoners,tribal religions give renewedself-identity and the pridenecessary to return from prison

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as contributing members ofsociety.

Since 1972 more than 40 law­suits have been filed by Nativeprisoners seeking freedom ofworship in such areas as: a)right to wear traditionalhairstyles for religious reasons;b) access to Indian spiritualleaders; c) right to possessionof sacred objects such asfeathers, medicine pouches,cedar, sweetgrass and sage; andd) access to Indian sweat lodgesfor worship purposes.

Prior to 1986, most suitsprotected First and FourteenthAmendment rights of Nativeprisoners under existingAmerican legal standards.However, beginning in 1987,the Supreme Court changedthe law, seriously weakeningFirst Amendment rights ofprisoners in general [0 'Lone v.Shabazz (1987)] and eliminat­ing First Amendment protec­tions for Native religiouspractices in particular [Lyng v.Northwest Indian Cemetery(1988) and Employment Div. ofOregon v. Smith (1990)].Hence, widespread denials offreedom of worship for NativeAmerican prisoners exist todaywithout any legal protectionswhatsoever under Americanlaw.

There is a need for a newfederal law to protect religiousrights of Native Americanprisoners -- similar to the legis­lation recently passed inCoiorado. The new Coioradolaw grants American Indian in-

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mates, who practice anAmerican Indian religioIl,ac­cess to spiritualleaders,religious objects, and religiousfacilities on a basis comparableto access afforded inmates whopractice Judeo-Christianreligions. NARF and the Na­tive American ReligiousFreedom Coalition are work­ing to support passage ofamendments to the AmericanIndian Religious Freedom Actthat would, among other things,protect the religious rights ofNative American prisoners.

FOR FURTHER INFORMA­TION CONTACT: WalterEcho-Hawk, Native AmericanRights Fund, 1506 Broadway,Boulder, CO 80302, (303) 447­8760; Lenny Foster, Navajo Na­tion Corrections Project, P.O.Drawer 709, Window Rock, AZ86515, (602) 871-6244; DonaldRagona, Attorney, Colorado In­dian Prisoner Support Group,19605 Flint Lane, Morrison, CO80462, (303) 447-8760.

Summer 1992

Cheyenne ArapahoTribe Wins SuitAgainst the BIA

In Cheyenne-Arapaho Tribev. United States, NARF repre­sents the Cheyenne-ArapahoTribe in a suit against oil com­panies and the Bureau of In­dian Affairs to overturn theaction of the BIA extending theterms oftribal oil and gas leaseswithout tribal consent. TheBIA, contrary to its trust obliga­tions to the Tribe, improperlyexercised its discretion and ex­tended the terms of four oil andgas leases at below marketvalue rates. The Tribe seeksthe right to renegotiate theseleases at fair competitive rates,or perhaps to operate the wellsas a tribal economic develop­ment project. In May, 1989, afederal district court ruled inthe Tribe's favor on three of thefour disputed leases involved inthe suit. The district courtrejected the Tribe's argumentas to the fourth lease. NARFrequested and a federal courtofappeals granted an early datefor oral argument. Oral argu­ment was heard in September,1990.

In its decision dated June 5,1992, the United States Courtof Appeals for the Tenth Cir­cuit affirmed and upheld thefederal district court's decisionof May, 1989, as to three of thefour disputed leases. The threejudges who made up the Panelfor the Court of Appeals heldthat, in extending the leases,

NARF Legal Review

the BIA had breache.d itsfederal trust duties by failing toconsider and take advantage ofthe increased market value ofthe leases at the time of expira­tion. These leases were there­fore held to have expired as ofMay 10, 1981, and the Tribe wasdeclared the owner of both theroyalty and working interest inthose wells. The panel decisionis unclear as to the dispositionof the fourth lease.

Laying PawneeSpirits to Rest

The Nebraska State Histori­cal Society (NSHS) sued thePawnee Tribe of Oklahoma instate court in January of 1990over a dispute regarding theTribe's request to seek NSHSrecords. The Tribe sought therecords in order to ascertainthe agency's interpretation ofthe scope of the Tribe'srepatriation claim and torebury the skeletal remains andburial goods of Pawnee ances­tors unearthed and held byNSHS. NSHS refused dis­closure contending that it wasnot a state agency and that therecords sought were not subjectto disclosure under the publicrecords law. The Tribecounter-claimed, contending

11

that NSHS is a state agency andthat it had violated the law bynot disclosing the requesteddocuments.

On May 31, 1991, after a fiveday trial, the court ruled infavor of the Pawnee Tribe onall issues. The court held thatNSHS is a state agency subjectto the public records law, andthat it violated the law by notdisclosing the requested docu­ments. In September, 1991,after a hearing on the Tribe'srequest for attorneys fees, thecourt ruled in favor of the Tribeand awarded $61,000.00 in at­torneys fees and costs.

In November of 1991, theNSHS appealed all twelve is­sues, including the attorneysfee matter. In early 1992, theappeal was moved from theCourt of Appeals to theNebraska Supreme Court.Briefing was completed in May1992, and a decision is expectedin late 1992 or early 1993.

With respect to the repatria­tion of Pawnee skeletalremains and burial goods underthe Nebraska Reburial Act of1989, the Pawnee Tribereburied over 400 ancestralremains and associated burialgoods in September, 1990. Inmid-1991, the NSHS returnedthe remains of an additional300 individuals and their burialgoods, which were buried insouthwestern Nebraska. Thislatter repatriation was ac­complished after the Tribeprevailed in a formal grievancefiled under the Reburial Act.

Summer 1992

These repatriations were thefirst ever under a generalrepatriation statute.

The NSHS, in September,1991, also returned the covetedand controversial George IIIPeace Medal to the Tribe forreburial. This medal wasburied with a Pawnee triballeader in the 18th or 19th cen­tury, and was unearthed by theNSHS in the 1920's. It wascoveted by the agency as an ob­ject bearing great importancein Nebraska history. Thismedal has been the focal pointof a controversy between theNSHS and the Pawnee Tribefor four years. The medalformed the primary basis forthe vociferous and well-or­ganized opposition of theNSHS to the precedent-settingReburial Act of 1989.

The NSHS still retains theremains ofup to 500 individualsand their burial goods, claimingthat these remains are uniden­tifiable to any specific tribe.However, the Pawnee Tribemaintains that 200 to 300 ofthese remains are identifiableto the Pawnee, Wichita andArikara, the so-called North­ern Caddoan Tribes. TheNSHS has decided to return allof the human remains andburial offerings in its "collec­tion" to the Nebraska IndianCommission. Therefore, in­stead of filing a grievanceunder the 1989 Reburial Act,the Pawnee Tribe is working incooperation with the IndianCommission for the return andreburial of the identifiable

NARF Legal Review

Northern Caddoan remains. Itis anticipated that this processwill take one year.

During the Spring of 1992, theArizona State Law Journal pub­lished a compilation ofscholar­ly articles on the repatriationissue. It is entitled "Sym­posium: The Native AmericanGraves Protection andRepatria­tion Act of 1990 and StateRepatriation - Related Legisla­tion" (Vol. 24, No.1, Spring1992). Included in the publica­tion was an article entitled,"The Legal Basis, LegislativeHistory, and Implementationof Nebraska's LandmarkReburial Legislation," byNARF Attorney RobertPeregoy, who serves as leadcounsel and lobbyist for thePawnee Tribe in the Nebraskaburial matter.

12

Indian Languagesand the Federal

Voting Rights Act

In August of 1992, Section203 of the Voting Rights Actwill expire. Section 203 re­quires that certain jurisdictionsprovide language assistance inthe electoral process to mem­bers of Indian and other lan­guage minority groups. Today,15 counties in eight states mustprovide assistance in NativeAmerican languages. If Sec­tion 203 is not reauthorized byCongress before August 6,1992, these counties will nolonger be required by federallaw to assist Indian languagespeakers. Consequently, manyIndian people will be deniedtheir constitutional right tovote simply because they can­not understand the ballots orregistration materials. Section203 must be reauthorized andamended to protect the fun­damental right of Indianpeople to participate in thedemocratic process.

The purpose of Section 203 isto prevent discriminationbased on language ability byprohibiting covered countiesfrom conducting elections,voter education and registra­tion solely in the English lan­guage. Covered counties aredefined as those where thenumber of limited-Englishproficient Native Americans ofvoting age exceed five percentof the total voting age popula­tion of the county.

Summer 1992

Section 203's coverage for­mula is not effective as it fails toidentify many Indian languagespeakers who might benefitfrom language assistance be­cause it uses the county votingage population rather than thereservation Indian voting agepopulation as its standard com­parison. Most Indian languagespeakers live on reservationsand are relatively few in num­ber compared to other lan­guage minorities. Manyreservations are split by countyand even state lines. Section203 requires the Indian lan­guage speakers in each reserva­tion county to be talliedseparately from those in ad;.joining counties on the samereservation, making it nearlyimpossible for them to exceedthe five percent requirement.

Section 203 must bereauthorized and amended toprovide an alternate standardof comparison for NativeAmericans. S. 2236 and H.R.4312 amend Section 203 to re­quire counties to provide assis­tance where the limitedEnglish-proficient Indianvoting age population of areservation exceeds five per­cent of the total reservation In­dian voting age population.

ACTION NEEDED--Congressmust pass a bill reauthorizingSection 203 and amending itscoverage formula before August6. Please askyourcongressionaldelegations now to support S.2236 orH.R. 4312 and to opposeany attempts to weaken them.Call Peg Rogers at the Native

NARF Legal Review

American Rights fund,Washington, D.C. office, (202)785-4166, for more information.

NARF RESOURCES ANDPUBLICATIONS

THE NATIONAL INDIAN LAWLIBRARY

The National Indian Law Library(NILL) has developed a rich and uni­que collection of legal materials relat­ing to Federal Indian law and theNative American. Since its founding in1972, NILL continues to meet theneeds of NARF attorneys and otherpractitioners of Indian law. The NILLcollection consists of standard lawlibrary materials, such as law reviewmaterials, court opinions, and legaltreaties, that are available in well­stocked law libraries. The uniquenessand irreplaceable core of the NILLcollection is comprised of trial hold­ings and appellate materials of impor­tant cases relating to the developmentof Indian law. Those materials in the

13

public domain, that are non­copyrighted, are available from NILLon a per-page-cost plus postage.Through NILL's dissemination of in­formation to its patrons, NARF con­tinues to meet its commitment to thedevelopment of Indian law.

AVAILABLE FROM NILL

The NILL Catalogue

One of NILL's major contributions tothe field of Indian law is the creationof the National Indian Law LibraryCatalogue: An Index to Indian LegalMaterials and Resources. The NILLCatalog lists all of NILL's holdingsand includes a subject index, anauthor-title table, a plaintiff-defen­dant table and a numerical listing. Thisreference tool is probably the best cur­rent reference tool in this subject area.It is supplemented periodically and isdesigned for those who want to knowwhat is available in any particular areaof Indian law. (1,000 + pgs. Price:$75) (1985 Supplement $10; 1989Supplement $30).

Bibliography on Indian EconomicDevelopment

Designed to provide aid on thedevelopment of essential legal toolsfor the protection and regulation ofcommercial activities on Indian reser­vations. This bibliography provides alisting of articles, books, memoranda,tribal codes, and other materials onIndian economic development. 2ndedition (60 pgs. Price: $30). (NILL No.005166)

Indian Claims CommissionDecisions

This 47-volume set reports all of theIndian Claims Commission decisions.An index through volume 38 is alsoavailable. The index contains subject,tribal and docket number listing. (47volumes. Price $1,175). (Index pricedseparately at $25). (Available from theNationai Indian Law Library).

Prices subject to change

Summer 1992

AVAILABLE FROM THEINDIAN LAWSUPPORT CENTER

A Manual for Protecting IndianNatural Resources. Designed forlawyers who represent Indian tribes ortribal members in natural resourceprotection matters, the focus of thismanual is on the protection of fish,game, water, timber, minemls, gr'azinglands, and archaeological andreligious sites. Part I discusses the ap­plication of federal and common lawto protect Indian natural resources.Part II consists of practice pointers:questions to ask when analyzingresource protection issues; strategyconsiderations; and the effective useof law advocates in resource protec­tion. (151 pgs. Price $25).

A Manual on Tribal Regulatory Sys­tems. Focusing on the uniqueproblems faced by Indian tribes indesigning civil regulatory ordinanceswhich comport with federal and triballaw, this manual provides an introduc­tion to the law of civil regulation and achecklist of general considerations indeveloping and implementing tribalregulatory schemes. It highlightsthose laws, legal principles, and unset­tled issues which shouldbe consideredby tribes and their attorneys indeveloping civil ordinances, irrespec­tive of the particular subject matter tobe regulated. (110 pgs. Price $25).

A Self Help Manual for IndianEconomic Development. This manualis designed to help Indian tribes andorganizations on approaches toeconomic development which can en­sure participation, control, owner­ship, and benefits to Indians.Emphasizing the difference betweentribal economic development andprivate business development, thismanual discusses the task of develop­ing reservation economies from theIndian perspective. It focuses on someof the major issues that need to beresoived in economic developmentand identifies options available totribes. The manual begins with ageneral economic developmentperspective for Indian reservations:

NARF Legal Review

how to identifyopportunities, lind howto organize the internal tribal struc­ture to best plan and pursue economicdevelopment of the reservation. Otherchapters deal with more specific is­sues that relate to the development ofbusinesses undertaken by tribalgovernment, tribal members, and bythese groups with outsiders. (Approx.300 pgs. Price $35).

Handbook of Federal Indian Educa­tion Laws. This handbook discussesprovisions of major federal Indianeducation programs in terms of thelegislative history, historic problems inimplementation, and current issues inthis radically changing field. (130 pgs.Price $20).

1986 Update to Federal Indian Educa­tion Law Manual ($30) Price forhandbook and update manual ($45).

A Manual On the Indian Child Wel­fare Act and Law Affecting IndianJuveniles. This fifth Indian Law Sup-

14

port Center Manual is now available.This manual focuses on a section-by­section legal analysis of the Act, itsapplicability, policies, findings, inter­pretations, and definitions. With addi­tional sections on post-trial mattersand the legislative history, this manualcomprises the most comprehensiveexamination of the Indian Child Wel­fare Act to date. (373 pgs. Price $35).

PUBLICATIONS

ANNUAL REPORT. This is NARFsmajor report on its programs and ac­tivities. The Annual Report is dis­tributed to foundations, majorcontributors, certain federal and stateagencies, tribal clients, NativeAmerican organizations, and to othersupon request.

THE NARF LEGAL REVIEW is pub­lished by the Native American RightsFund. Third class postage paid at

Summer 1992

Boulder, Colorado. Ray Ramirez,Editor. There is no charge for sub­scriptions.

Tax Status. The Native AmericanRights Fund is a nonprofit, charitableorganization incorporated in 1971under the laws of the District ofColumbia. NARF is exempt fromfederal income tax under theprovisions ofSection 501 (c) (3) of theInternal Revenue Code, and contribu­tions to NARF are tax deductible.The Internal Revenue Service hasruled that NARF is not a "privatefoundation" as defined in Section509(a) of the Internal Revenue Code.

Main Office: Native American RightsFund, 1506 Broadway, Boulder,Colorado 80302 (303-447-8760).

D.C. Office: Native American RightsFund, 1712 N Street, N.W.,Washington,D.C. 20036 (202-785­4166).

Alaska Office: Native AmericanRights Fund, 310 K Street, Suite 708,Anchorage, Alaska 99501 (907-276­0680).

EMPLOYMENTOPPORTUNITY

Director of Major Gifts • NativeAmerican Rights Fund

Responsibilities: Responsible for allactivities related to the identification,cultivation and solicitation of majorgift prospects on a national level.

Qualifications: At least 6 years ofsuc­cessful fund raising experience. Solidbackground in soliciting major giftsfor an established nonprofit organiza­tion. Willing and able to travel exten­sively.

Salary: Competitive national salaryand benefits.

Contact: Send letter of interest andresume to: Marilyn Pourier, Develop­ment Officer, NARF, 1506 Broadway,Boulder, CO 80302. Deadline date isAugust 24, 1992.

BACK COVER PHOTOGRAPH -- Walter R. Echo-Hawk, Jr., astaff attorney in the Boulder office, is a Pawnee from Oklahoma.Walter's legal experience includes cases involving religiousfreedom, prisoner rights, treaty rights, water rights, and repatria­tion rights. He has served as Co-Director of NARF's AmericanIndian Religious Freedom Project and Director of the IndianCorrections Project. Mr. Echo-Hawk has a B.A. from OklahomaState University (1970); J.D., University of New Mexico (1973);and has worked for NARF from 1973 to the present. (Photocredit-Thomey Lieberman)

NARF Legal Review 15 Summer 1992

Native American Rights Fund

The Native American Rights Fund is a nonprofit or­ganization specializing in the protection of Indian rights.The priorities ofNARF are: (1) the preservation of tribalexistence; (2) the protection of tribal natural resources;(3) the promotion of human rights; (4) the accountabilityofgovernments to Native Americans; and (5) the develop­ment of Indian law.

Our work on behalf of thousands of America's Indiansthroughout the country is supported in large part by yourgenerous contributions. Your participation makes a bigdifference in our ability to continue to meet ever-increas­ing needs of impoverished Indian tribes, groups and in­dividuals. The support needed to sustain our nationwideprogram requires your continued assistance. Requestsfor legal assistance, contributions, or other inquiriesregarding NARF's services may be addressed to NARF'smain office: l506 Broadway, Boulder, Colorado 80302.Telephone (303) 447-8760.

BOARD OF DIRECTORSRichard (Skip) Hayward, Chairman Mashantucket PequotAnthony L. Stmng, Vice-chair TIlnglt-KlukwanLionel Bordeaux , Rosebud SiouxMildred Cleghorn " Fort SlII ApacheRick HlII " "" OneidaMahealani Kamauu •...... " Native HawaiianWillie Kasayulie , . " YupikJohn R. Lewis ". Mohave/PimaTwlla Martin-Kekahbah """"". Turtle Mountain ChippewaCalvin Peters """""""" .. " Squaxin IslandEvelyn Stevenson" , , " , "" .. , ".. "" ". , Salish-KootenaiEddie Tullis " Poarch Band of CreeksVerna Williamson " ", . ""Isleta PuebloExecutive Director: John E. Echohawk (Pawnee)

NARF Legal Review1506 Broadway

Boulder, CO 80302

NARF Legal Review

Non-Profit Org.U.S. POSTAGE PAID

Boulder, ColoradoPermit No. 589

Summer 1992