•THE TRIBAL SUPREME

COURT PROJECT

Indian Law Library pageJ4

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

was created to coordinate resources, improvestrategy and strengthen Indian advocacy beforethe Court. The Project operates under the theorythat if Indian tribes take a strong, consistent,coordinated approach before the U.S. SupremeCourt, they will be able to reverse, or at leastreduce, the erosion of tribal sovereignty andtribal jurisdiction by the federal courts. The

Tribal Supreme CourtProject is jointly staffed byattorneys from the NativeAmerican Rights Fund(NARF) and the NationalCongress of AmericanIndians (NCAl).

Now in existence for justover four years, the TribalSupreme Court Project canlook back to review itstheory in practice. Since2001, the Project has beeninvolved in seven casesargued before the U.S.Supreme Court with four

solid wins, two disappointing losses and onedraw. This winning percentage is a vast improve­ment from the deplorable win-loss record Indiantribes have suffered before the Court in the pasttwo decades. And this winning record does notreflect a number of cases where the Project hasworked "behind the scenes" to ensure thatvictories won at the U.S. Circuit Courts ofAppeal are denied discretionary review by theSupreme Court. ~

CASE UPDATES- Hawaiian Land Protected .... page 7- Support for Kamehameha

Schools in Hawaii page 9- Land Into Trust Declared

Constitutional page 10

~ The Tribal SupremeCourt Project page 1

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~ New Board Members page 11

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Today, many of the battles in Indian countryare being fought in the courtroom. Many judges,who lack an understanding of the fundamentalprinciples underlying federal Indian law and whoare unfamiliar with the practical challenges facingtribal governments, are making decisions thatthreaten the continued sovereign existence ofIndian tribes. Perhaps the greatest threat toIndian tribes comes fromthe recent decisions of theUnited States SupremeCourt. As noted Indianlaw scholar David Getchesfound, in the past twodecades, Indian tribes havelost approximately 80% oftheir cases before theSupreme Court. (David H.Getches, Beyond IndianLaw:TheRehnqu~tCourls

Pursuit of States' Rights,Color Blind Justice andMainstream Values, 86MINN. L. REV. 267 (2001)(providing an in-depth analysis of the Court'sre-writing of Indian law.) And these losses havebeen severe. The Court has in recent years takena very aggressive approach to eroding tribalsovereignty and jurisdiction. At the same time,the Court has been increasing State jurisdictionover Reservations

In 2001, Tribal Leaders formed the TribalSupreme Court Project as a part of the TribalSovereignty Protection Initiative. The Project

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VOLUME 30, NO.2 SUMMERIFALL 2005

The Tribal Supreme Court Project is also con­stantly looking ahead, preparing for the nextseries of cases challenging tribal sovereigntyand contesting tribal jurisdiction. As we lookforward to the October 2005 Term, the Project isevaluating the impact of the death of ChiefJustice William H. Rehnquist, while reviewingthe qualifications and experience of his successor,Judge John G. Roberts. The Project continues tomonitor new developments in relation to theresignation of Justice Sandra Day O'Connorfrom the Court. The Project remains very busy,tracking numerous cases at various stages ofappeal within both state and federal courts,while directly participating in the preparation ofamicus briefs in the u.s. Supreme Court and theU.S. Circuit Courts of Appeals.

Looking BackIn the October 2004 term of the U.S. Supreme

Court, Indian country suffered q. difficult loss inCity of Sherrill v. Oneida Nation of New York(No. 03-855), celebrated a significant victory inthe Cherokee Nation cases (Nos. 02-1472 and03-853) and worked diligently to ensure thatimportant victories won at the lower courtswere denied review by the Supreme Court.

In City of Sherrill, the Supreme Courtreversed the U.S. Court Appeals for the SecondCircuit and ruled against the Oneida Nation,holding that while the Nation maintains a validclaim for damages for reservation lands sold inviolation of the Nonintercourse Act, it may notassert tax immunity on repurchased lands with­in the reservation boundaries until those landsare placed into trust by the Secretary of Interior.This case was closely monitored by many Indian

tribes for its impact on tribal land claims and itsapplication of a number of important principlesof federal Indian law. Justice Ginsburg wrote theopinion in the 8-1 decision against the Nation,stating: "Given the longstanding distinctly non­Indian character of the area and its inhabitants,the regulatory authority constantly exercised byNew York State and its counties and towns, andthe Oneidas' long delay in seeking judicial reliefagainst parties other than the United States, wehold that the Tribe cannot unilaterally revive itsancient sovereignty, in whole or in part, over theparcels at issue. The Oneidas long ago relin­quished the reins of government and cannotregain them through open-market purchasesfrom current titleholders."

For the first time in a case involving tribalclaims, the Court's decision invoked the equi­table doctrine of laches - that the long passageof time, the Oneida's inaction during that timeand the disruptive nature of the remedy - preventsthe Nation from asserting its tax immunity. TheCourt made clear that it was not invalidating theland claim, but only one of the remedies avail­able for the claim. The Court's reliance on thedoctrine of laches, which was never presented orbriefed by the parties, betrays a deep lack ofunderstanding of the legal and historical realitiesthat prevented many tribes from being able tovindicate their rights until recent decades.While the decision should be construed as anarrow decision regarding the remedies thatare available for land claims under theNonintercourse Act, the Second Circuit has nowrelied on City of Sherrill and the doctrine oflaches to reverse the district court's award of$247 million in money damages and to entirely

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bar the land claims brought in Cayuga IndianNation olNew York and Seneca-Cayuga Nationof Oklahoma v. Pataki. The Project is also veryconcerned that states and others are using theCity ofSherrill and the doctrine of laches to barcauses of action or to diminish the remediesavailable in other tribal claims, including treatyhunting and fishing litigation, natural resourceclaims and water rights adjudications.

In the Cherokee Nation cases, the U.S.Supreme Court reviewed and considered for thefirst time the enforceability of the Indian SelfDetermination Act of 1975. In the first case,Cherokee Nation of Oklahoma and Shoshone­Paiute Tribes of the Duck Valley Reservation v.Thompson, the Tenth Circuit Court of Appealshad held that the federal government wasimmune from any liability for its failure to payfull contract support costs to Indian tribes,during a period in the mid 1990's in whichCongress did not place a statutory cap on theamounts the Indian Health Service (IHS) couldpay tribal contractors. In the second case,Thompson v. Cherokee Nation ofOklahoma, theFederal Circuit Court of Appeals had reached theopposite conclusion, awarding the CherokeeNation $8.5 million in damages for the failure bythe federal government to fully pay contractsupport costs.

In the litigation, the United States had takenthe position that Indian tribes are not entitled tothe same protections afforded other governmentcontractors, and self-determination contractsare merely "governmental funding arrange­ments." A unanimous U.S. Supreme Courtrejected the U.S. position and held that Indianself-determination contracts are "legally binding"agreements - enforceable promises by the federalgovernment similar in nature to other procure­ment contracts. Justice Breyer, delivering theopinion for the unanimous Court, accepted theview of "the Tribes and their amici... that as longas Congress has appropriated sufficient legallyunrestricted funds to pay the contracts at issue,the government cannot normally back out of apromise to pay on the grounds of 'insufficientappropriations,' even if the contract uses

language such as 'subject to the availability ofappropriations,' and even if an agency's totallump-sum appropriation is insufficient to pay allthe contracts the agency has made" (emphasisin original).

In both the City of Sherrill and the CherokeeNation cases, the Project developed a tribalamicus brief strategy starting at the petitionfor certiorari stage, and then coordinated thepreparation and filing of several tribal amicusbriefs on the merits after review was granted.The Project also monitored several other Indianlaw cases at the petition for certiorari stage,oftentimes working directly with the attorneysrepresenting their tribal clients, to ensure thatother victories won at the U.S. Circuit Courts ofAppeal and the various state Supreme Courtswere denied review by the U.S. Supreme Court,including:

Eastern Shoshone Cases (Nos. 04-731 and 04­929). In a mixed decision for Indian country,the Federal Circuit held that the SupremeCourt's decision in United States v. NavajoNation moots the Tribes' claims relating to abreach of trust for asset mismanagementunder the Indian Mineral Leasing Act of 1938.However, the United States is liable for mis­management of trust funds after collectionand for losses to trust funds resulting from thefailure to collect. Finally, the Tribes areentitled to interest on the amounts of fundsthat the government was obligated to collector delayed in collecting.

Hammond v. Coeur d'Alene Tribe of Idaho(No. 04-624). The Ninth Circuit held that theincidence of the Idaho motor fuel tax imper­missibly falls on the Tribes, notwithstandingthe state legislature's declared intent to shiftthe incidence of the tax to the non-Indiandistributors. Further, the Ninth Circuit heldthat the Hayden Cartwright Act, which autho­rizes states to tax motor fuel sales on "UnitedStates military or other reservations," does notmanifest sufficiently clear congressionalintent to abrogate tribal immunity and allowstates to tax gasoline sales on Indian reservations.

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South Dakota v. Cummings (No. 04-74). TheSouth Dakota Supreme Court held that acounty sheriff may not exercise criminaljurisdiction over an Indian in Indian country,even when in hot pursuit for a crime committedoff-reservation. The State of South Dakota hadasked the U.S. Supreme Court to overturn thecase and expand the Nevada v. Hicks decision toincrease the jurisdiction of states to enterIndian reservations. Even with this goodresult, it would be a mistake to believe that theissue of "hot pursuit" is resolved. It is certainlypossible that this issue will make its way backto the Supreme Court, and if it does it will bea tough challenge to tribal sovereignty.

Finally, over the past term, the Project hasbeen consulted by a number of Indian tribeswho have suffered significant setbacks or lossesat the lower courts and who were consideringreview by the Supreme Court. Generally, thesepetitions for certiorari were discouraged by theProject in recognition that, at present, there isno bad situation that the Supreme Court cannotmake worse for Indian country.

Looking AheadIn the 2005 Term of the U.S. Supreme Court,

Indian country faces another difficult challengein Wagnon (formerly Richards) v. Prairie BandPotawatomi Nation (No. 04-631). In Wagnon,the State of Kansas is seeking to overturn theTenth Circuit's decision to invalidate theapplication of the Kansas motor fuel tax on tribalsales to non-Indian motorists. Significantly,the Tenth Circuit held that the Nation was not"marketing a tax exemption" but instead its gasstation was an essential part of its on-reservationgaming enterprise - particularly where theNation charged a tax equal to the state tax andthe Nation built and maintained the transportationinfrastructure on its rural reservation. Theimportance of this case to the states' interests isunderscored by the filing of amicus briefs insupport of Kansas by State of South Dakota,joined by 13 other states (Alaska, California,Connecticut, Idaho, Michigan, Missouri,

Nevada, New Mexico, North Dakota, Oklahoma,Pennsylvania, Utah, and Wyoming), theMultistate Tax Commission and the NationalAssociation of Convenience Stores, thePetroleum Marketers Association of Americaand the Society of Independent GasolineMarketers of America.

The Tribal Supreme Court Project responded,working closely with the attorneys representingPrairie Band Potawatomi Nation and attorneysfrom throughout Indian country, by coordinating,preparing and filing four tribal amicus briefs:(1) the National Congress of American Indiansbrief which focuses on the major tax principlesin federal Indian law, tracing the history of judicialdecisions, beginning with the Indian CommerceClause and moving forward; (2) the NationalIntertribal Transportation Alliance brief whichdiscusses the importance of motor fuel taxes toIndian tribes due to the poor quality of roadsystems in Indian country and the disparity infunding between states and tribes for trans­portation infrastructure, emphasizing thediscriminatory application of state motor fueltaxes on reservations, which siphon reservationfunding and leave reservations with the worstroads in the country; (3) the National IntertribalTax Alliance brief which provides the Court withan overview of the numerous tax compactsentered into by tribes and states, arguing thatthere has been considerable reliance on thebalancing test and that a decision supportingthe Kansas position will severely upset theseeffective state-tribal agreements; and (4) theKansas Tribes' brief which discusses the violationby Kansas of its Act for Admission and its aban­donment of prior state-tribal tax agreements.In all, over 30 individual Indian tribes signed onto the tribal amicus briefs. To their credit,attorneys working for the Tribe and the Projectwere also successful in persuading the U.S.Solicitor General's Office to file a brief supportingthe Prairie Band Potawatomi Nation. Attorneysfor the United States shared time with the Tribein presenting oral arguments to the SupremeCourt on October 3, 2005.

Other challenges await. In the area of tribal

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criminal jurisdiction, the U.S. Circuit Courtof Appeals for the Ninth Circuit recently issuedits decision in Means v. Navajo Nation (No. 01­17489). By way of background, during its 2003Term, the Supreme Court issued its decisionin United States v. Lara which upheld tribalcriminal jurisdiction over nonmember Indiansbased on the 1990 amendments by Congress tothe Indian Civil Rights Act, and ruled that a sub­sequent prosecution by the federal governmentdoes not violate double jeopardy clause of theU.S. Constitution because an Indian tribe is"acting in its capacity of a separate sovereign."In Lara, the Supreme Court held that "theConstitution authorizes Congress to permittribes, as an exercise of their inherent tribalauthority, to prosecute nonmember Indians."However~ the Supreme Court's opinion left openthe issue of whether a tribal prosecution of non­member Indian may be challenged on the basisof a lack of due process or as a violation of equalprotection.

In Means, the Ninth Circuit addressed boththe lack of due process and the violation of equalprotection issues left open in Lara. First, theunanimous three judge panel held that the"weight of established law requires that wereject Means' equal protection claim," citingMorton v. Mancari for the legal principle thatIndian tribal identity is political in nature(enrollment in an Indian tribe), and is not basedon any suspect racial classification. Next, thecourt rejected Means' due process challenge,finding that "the Indian Civil Rights Act confersall the criminal protections on Means that hewould receive under the Federal Constitution,except for the right to grand jury indictment

and the right to appointed counsel if he cannotafford an attorney." However, since the NavajoBill of Rights confers the right to counsel to theaccused, and since Means was charged with amisdemeanor to which the right to a grand juryindictment does not attach, Means was notdeprived of any constitutionally protectedrights. The Project has been monitoring theMeans case (and a similar case titled Mot:ris v.Tanner) in the Ninth Circuit for the past twoyears. The Project fully expects that the losingparties will pursue these matters for review bythe Supreme Court.

In the area of tribal civil jurisdiction, theProject continues to deal with the fallout fromthe Supreme Court's disastrous decisions inStrate v. A-l Contractors, Atkinson Trading Co.v. Shirley and Nevada v. Hicks. In Ford MotorCo. v. Todecheene, the Ninth Circuit held thatthe Navajo Nation does not have jurisdictionover products liability action arising out of aroll-over accident on the Navajo Reservation ona road wholly owned by the Nation whichinvolved a police vehicle leased by the Nationwhich resulted in the death of a Navajo policeofficer. The Project assisted the Navajo Nation inpreparing its petition for rehearing or rehearingen banco In Smith v. Salish Kootenai College,the Ninth Circuit held that an Indian tribe doesnot have civil jurisdiction over tort action thatarose as a result of a traffic accident on a publichighway within the Reservation which involveda non-member Indian who was a student at thetribal college and who was driving the vehicle aspart of a vocational program at the college. TheProject prepared and filed a tribal amicus briefsupporting the Tribe's petition for rehearing or

Hawaiian Lands ProtectedCASE UPDATES

In 1993, the United States Congress enactedthe Hawaiian Apology Joint Resolution, PublicLaw 103-150, admitting that the role of theUnited States military in removing the Hawaiianmonarch, Queen Lili'u'okalani, from power andinstalling a provisional government was illegalunder American and international law. Prior tothe overthrow, Hawaii was regarded internationallyas one of the family of nations which hadconcluded numerous treaties of trade, commerceand friendship with several countries, includingthe United States. The Apology was a watershedevent in American history, seen by manyHawaiian people as the first step in makingreparations for the illegal overthrow. The over­throw has been viewed by Native Hawaiians asthe ultimate atrocity committed against theirsovereign Nation, the culmination of theenormous political, social, cultural, economicand spiritual changes wrought on the Hawaiianpeople since the 1778 arrival of Captain Cook.

The United States' admission that the over­throw was illegal, immoral, and unjust was seenas but a first step in the long process of establishing"ho'opono'pono" - the Hawaiian traditionalsystem for "making things right."

In another step towards "ho'opono'pono," onSeptember 12, 2005, Hawaii Governor LindaLingle, the Office of Hawaiian Affairs (OHA), theDepartment of Land and Natural Resources(DLNR), and the Trust For Public Land (TPL)announced the purchase of 25,856 acres - morethan 40 square miles - of Native Hawaiianrainforest known as Wao Kele 0 Puna that isstrategically located near Hawaii VolcanoesNational Park.

"The struggle for this rainforest dramatically brings together Native cultural rights andenvironmental issues; the need to protect sacred, unspoiled areas for Native peoples gives Wao Keleo Puna national importance." (John Echohawk, Executive Director, Native American Rights Fund)

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the State to brief its alternative argument thateven if additional land may be taken into truston behalf of the Narragansetts, the trust must berestricted to preserve Rhode Island's civil andcriminal laws and jurisdiction. Once again, theProject coordinated the preparation and filing ofa tribal amicus brief in response to the order,providing the requested information to theCourt and opposing the petition for rehearing.The matter has been fully briefed and we areawaiting a decision from the Court.

Other areas under attack include the IndianChild Welfare Act, (Doe v. Mann - denial of tribalexclusive jurisdiction under the Indian ChildWelfare Act over a child custody decision involv­ing an Indian child within the boundaries of anIndian reservation in a Public Law 280 state);tribal treaty rights (Skokomish v. United States- denied the Tribe a federal common law right tomonetary relief against any party except a treatysignatory, holding that only injunctive relief isavailable against state, local governments, orprivate individuals who violate treaty protectedproperty right); and tribal land claims (CayugaIndian Nation ofNew York and Seneca-CayugaNation ofOklahoma v. Pataki - reliance on Cityof Sherrill and the doctrine of laches to reversethe district court's award of $247 million inmoney damages and to entirely bar the landclaims).

The battles will wage on. Thus, the importanceof the Tribal Supreme Court Project in all ofthese areas will continue to demand constantvigilance and to call upon the collectiveresources of Indian tribes, legal scholars, andIndian law firms.a

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rehearing en banco In both cases, vigorous dis­senting opinions were also filed, providing somemeasure of optimism that the petitions forrehearing will be granted.

In the area of tribal lands, in March 2005, theU.S. Court of Appeals for the First Circuitannounced its decision in Carderi v. Norton,upholding the authority of the Secretary ofInterior to take land into trust for theNarragansett Tribe under Section 5 of the IndianReorganization Act (IRA). The Project coordi­nated the writing of two amicus briefs in thecase with the attorneys for the NarragansettIndian Tribe and the United States. This case is asignificant victory for Indian tribes because ofthe significance of the IRA and the Secretary'sland into trust authority. First, the court inter­preted the definition of "Indian tribe" in the IRA,and rejected an argument that the IRA does notapply to any tribe that was not "now under fed­eral jurisdiction" in 1934. A significant numberof tribes could have been hurt by the oppositeruling. Second, the court rejected a broadargument that Section 5 is an unconstitutionaldelegation of legislative authority. Unfortunately,in May 2005 in response to a petition for rehearingfiled by the State, the First Circuit issued anorder directing the U.S. to file a response toaddress the State's argument concerning theapplication of the IRA to the NarragansettIndian Tribe, including specifically any supportfor the assertion made at oral argument that "allthe Secretaries of the Interior for the last 70years have read the word 'now' to mean thepresent, as at the time of a tribe's application,"and that trust acquisitions for scores of tribescould be implicated if this Court were to acceptthe State's argument. The order also directed

The property has had a history of controversy,litigation, and civil protest, but is now on a pathto permanent protection thanks to the partner­ship. Under the plan, the private non-profit Trustfor Public Land will acquire the property nextyear from current landowner Campbell Estateand later convey the culturally important landsto the Office of Hawaiian Mfairs. DLNR is workingclosely with aHA to protect and properly managethe vast forest area when the transfer occurs.Together, the partnership will ensure that WaoKele 0 Puna will no longer be threatened withgeothermal energy production or converted tonon-forest uses.

The Pele Defense Fund, organized in the 1980'sto protect native gathering and religious rightsin the forest, was instrumental in focusingattention on the need for permanent protectionfor the forest. "We took a stand for this land twodecades ago in the courts, and have never givenup the fight to find a permanent way to protectthis forest," said Palikapu Dedman, President ofPDF. "We are looking forward to working withaHA and DLNR to keep this forest healthy andthriving-it is our responsibility as much as it isour right to malama this place that means somuch to our community."

For twenty years, the Native American RightsFund has co-counseled with the Native HawaiianLegal Corporation ("NHLC") and private counselYukIon Aluli and Jim Dombrowski in representingthe Pele Defense Fund in efforts to prevent large­scale geothermal development in the Wao Kele'OPuna rainforest on the Big Island, and to regainNative Hawaiian access rights to Wao Kele lands.These efforts culminated with the entry inAugust 2002 of a stipulated judgment and orderby the state court in Hilo, Hawaii recognizingthe rights of Native Hawaiians to hunt, gather,and worship on the Wao Kele lands - as part ofthe bundle of "traditional and customary rights"protected, preserved and enforced under ArticleXII, Section 7 of the Hawaii Constitution. WithNARF's assistance, the Trust for Public Lands(Hawaii Office) secured an appraisal of theproperty and efforts to purchase the land began.

The property is valuable on multiple levels.Wao Kele 0 Puna is extremely important to

Native Hawaiians, who for centuries have consis­tently used the property for traditional hunting,gathering, and religious purposes. In addition,the vast rainforest provides essential wildlifehabitat for more than 200 native Hawaiian plantand animal species, including several that arelisted as threatened or endangered. The vast forestwill serve as a protected corridor for native birdstraversing from mauka to makai. Wao Kele 0

Puna is also critical to protecting drinking waterquality in Hawaii County, covering over twentypercent of the Pahoa aquifer, the single largestdrinking water source on the island.

On August 26th, the Board of Trustees of theOffice of Hawaiian Mfairs unanimously committedto providing the necessary $250,000 in gap fundingtowards the purchase, as well as ongoing fundingfor planning and management. aHA is acquiringthe area to protect the natural and culturalresources on the land, to guarantee that NativeHawaiians can continue to exercise traditionaland customary activities on the land, and toensure that aHA can pass it on to a sovereigngoverning entity.

"The aina is the foundation of our culture,"stated Haunani Apoliona, Chair of the aHABoard of Trustees. "Our ability to protect such arich and symbolic resource in partnership withTPL and DLNR means that future generations inHawaii will benefit from our collective vision andforesight in protecting traditional lands andresources."

The U.S. Congress, thanks to the leadership ofU.S. Senator Daniel Inouye, a senior member ofthe Senate Appropriations Committee, approved$3.4 million in August from the U.S. ForestService's Forest Legacy Program towards thepurchase of the property.

The nearby Hawaii Volcanoes National Parkalso depends on the vast forest as a seed bank toprovide new growth on fresh lava flows that havedevastated the Park's own native forests. "Thebiological future of Hawaii Volcanoes NationalPark is tied directly to the conservation of nativeforests at Wao Kele 0 Puna," said Cindy Orlando,Hawaii Volcanoes National Park Superintendent.

For more information on this issue visithttp://www.oha.org.

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CASE UPDATESSupport for Kamehameha Schools in Hawaii

The Native American Rights Fund (NARF), incoordination with the Bishop Estate Trustees, onbehalf of its client, the National IndianEducation Association (NIEA) filed an amicuscuriae brief in support of the petition for rehear­ing en banc filed by the Kamehameha Schools inthe Ninth Circuit Court of Appeals. The AlaskaFederation of Natives (AFN), through its attorney,signed onto the brief NARF drafted.

In June 2003, a lawsuit was filed by an anony­mous student challenging the KamehamehaSchools' policy of restricting admission to NativeHawaiians only. The Kamehameha Schools havegiven preference to Native Hawaiians in itsadmissions policy for the past 117 years. Inaddressing this challenge, the federal districtcourt ruled that the policy was legal because itserved "a legitimate remedial purpose of improvingNative Hawaiian's socioeconomic and educationaldisadvantages." On August 9, 2005, in a 2-1decision, the Ninth Circuit Court reversed thatruling finding that the Schools' admission policyconstitutes unlawful discrimination and is aviolation of federal civil rights law.

NIEA and their member tribes and tribalorganizations have a direct interest in ensuringthat the educational needs of Native Hawaiian,American Indian and Alaska Native students, andthe public and private programs implemented tofulfill those needs, are protected and preservedunder federal law. This case presents questions ofexceptional importance. In particular, whetherremediation of ongoing socioeconomic andeducational deficiencies suffered by Nativepeoples as the result of the influx of westerncivilization provides "legitimate justification" tosupport a remedial race-conscious admissionspolicy of a private school which gives preferenceto Native students.

rNew Board Member

interests. For many years she was a CertifiedEmergency Medical Technician.

Acommunity and civic leader, Delia Carlyle hasbeen recognized many times for her service andcontributions. Among these awards, she was thefirst recipient of the Tony Sanchez Award foroutstanding contributions to Indian Elderlyprograms. She also was honored for her over 13years of service to the Nineteen Tribal NationsWorkforce Investment Act Board. Ms. Carlylewas recently selected as the first Arizona NativeAmerican woman to be inducted into the ArizonaDemocratic Hall of Fame.

Ms. Carlyle credits her commitment to givingback to her own community and the largercommunity to the teachings of her aunt whoinstructed her that "We have to serve when weare asked to serve. It is an honor to do so."Despite her many accomplishments, Ms. Carlylebelieves that her greatest achievements are herchildren and grandchildren

The Board of Directors and staff of the NativeAmerican Rights Fund look forward to workingwith and learning from Delia.

Delia M. Carlyle is a native of the Ak-ChinIndian Community in Arizona. She is currentlyChairman of the Arizona Indian GamingAssociation (AlGA) and Vice-Chairman of theAk-Chin Indian Community. Since being electedto office in 1984, Ms. Carlyle served as Chairmanand Secretary of the Ak-Chin CommunityCouncil.

Delia Carlyle joined the staff of the Ak-ChinIndian Community Center in 1978 and wasappointed director of the Center in 1994. In 1981she played a major role in establishing theCommunity's Elderly Program. Her professionaland political service to the Community Centerand the Tribal Council enabled her to create andimplement numerous programs in areas includinghousing, health, transportation, social services,education, and community development, all ofwhich directly benefit her Community.

Ms. Carlyle is active outside of her ownCommunity having served as the Ak-Chin IndianCommunity's representative on a number ofboards and committees. At the national level, shewas appointed to the National Indian HealthBoard. Regionally, she served on the Board ofRegents for the Southwestern PolytechnicInstitute (Albuquerque, New Mexico). ArizonaState appointments include the Nineteen TribalNations Workforce Investment Act Board, theIndian Education Advisory Board, the ArizonaCommission on Indian Affairs and Indian HealthCare Advisory Board.

Locally, Delia Carlyle serves as a board memberand clerk of the Maricopa Unified SchoolDistrict. She also continues to be active in theMaricopa Precinct Election Board, a position shehas held for 15 years. Ms. Carlyle graduated fromMaricopa High School in 1974, attended HaskellIndian Junior College in Lawrence, KS andCentral Arizona College. Upon returning to theAk-Chin Indian Community, Delia Carlylereceived her Nurses' Aid Certificate and workedat the Hohokam Hospital in Casa Grande. TheHealth Care field is one of her most enduring• •

•CASE UPDATESLand Into Trust Declared Constitutional

NARF worked with the Lower Brule SiouxTribe against the State of South Dakota'schallenge to the United States' decision to placeapproximately 91 acres of land into trust for theLower Brule Sioux Tribe under Section 465 ofthe Indian Reorganization Act. In South Dakotav. United States, the State alleged, among otherthings, that the Secretary of the Interior lacksauthority to place land into trust because Section465 is an unconstitutional delegation of legislativeauthority. In an earlier proceeding regarding thissame 91 acres of land, the Eighth Circuit Courtof Appeals did hold that Section 465 was uncon­stitutional, but the U.S. Supreme Court vacatedthat opinion and remanded to the Secretaryfor further reconsideration. The State thenchallenged the Secretary's reconsidered, andagain favorable, decision to place the land intrust. In April 2004, the Federal District Courtupheld the Secretary's decision and the Stateappealed.

The Lower Brule Sioux Tribe, acting as amicuscuriae, and the United States argued before theEighth Circuit Court of Appeals to defend theSecretary's decision and the constitutionality ofSection 465. NARF and former NARF AttorneyTracy Labin filed an amicus curiae brief insupport of the Tribe.

On September 6, 2005 the Eighth CircuitCourt ofAppeals affirmed the constitutionality ofSection 465, holding that it did not constitute anunlawful delegation of authority to the Secretary."The statutory aims of providing lands sufficientto enable Indians to achieve self-support andameliorating the damage arising from the allot­ment policy sufficiently narrow the discretionaryauthority granted to the Department." The Courtalso concluded that the Secretary's action wasnot arbitrary, capricious, or an abuse ofdiscretion, and affirmed the grant of summaryjudgment in favor of the Department.O

• Native Village of Eyak

• Nulato Village• Oneida Tribe of Indians of Wisconsin• Pechanga Band of Mission Indians

• Pueblo Of Laguna• Ruby Tribal Council• Santa Rosa Rancheria• Shakopee Mdewakanton Sioux Community

of Minnesota

• Shoonaq' Tribe of Kodiak

• Southern Ute Tribe• St. Regis Band of Mohawk Indians• Sycuan Band of Mission In .

• Tanana Chiefs Conference,

• Tling't and Haid

• Tuol

of Indian Country. It is an honor to list thoseTribes and Native organizations who have chosento share their good fortunes with the NativeAmerican Rights Fund and the thousands ofIndian clients we have served in the past twelvemonths. The generosity of Tribes is crucial inNARF's struggle to ensure the future of all NativeAmericans. We encourage other Tribes tobecome contributors and partners with NARF infighting for justice for our people and in keepingthe vision of our ancestors alive. We thank thefollowing tribes and Native organizations fortheir recent support. 0

• Agua Caliente Band Of Cahuilla Indians• Ak Chin Indian Community Council

• Akiak Native Community IRA• Aleut Community of St. Paul Island• Chickaloon Village Traditional Council• Coeur D' Alene Tribal Council• Colorado River Indian Tribes

• Colusa Rancheria• Comanche Nation• Confederated Tribes of the Grand Ronde

Community of Oregon

• Cow Creek Band Of Umpqua Tribe

• Elk Valley Rancheria• Forest County Potawatomi Community ofWisconsin

ort McDowell Yavapai Nation

• Fort Mojave Tribal Council• Little Traverse Bay Bands of Odawa Indians

• Louden Tribal Council• Lummi Indian Business Council• Miccosukee Resort and Gaming

• Mohegan Indian Tribe• Morongo Band Of Mission Indians

CALLING TRIBES TO ACTIONIIt has been made abundantly clear that non­

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

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Lydia has published articles in the EPA QuarterlyNewsletter and the Oregonian.

Lydia wants everyone to know that she lives inthe most beautiful place in the world, LakeIliamna and the Kvichak River. It is located 250miles southwest of Anchorage. Lake Iliamna isthe largest freshwater lake in Alaska. Lydia says,"There is only 47 people here in the village andlots more wildlife than people. We have theMulchatna Caribou herd, historically the largestsockeye salmon run in the world, coastal brownbears, moose, beaver, otter, wolves, eagles, lynx,wolverines, porcupines and lots more animalsand fish. I am surrounded by beauty here."

The Board of Directors and staff of the NativeAmerican Rights Fund have welcomed Lydia andlook forward to her six years on the Board. 0

Lydia Olympic is Aleut and Yupik Eskimo andthe daughter of late John Olympic of Kokhanok,Alaska and Mary Ann Olympic of Igiugig, Alaska.Lydia has served on the Igiugig Village Council asa Council member from November 1999 throughNovember 2004, and has been a CouncilPresident since November 2004. She lived inTigard, Oregon before moving back to Alaska torun the newly formed Igiugig EnvironmentalOffice which got her involved in local andregional politics.

Lydia attended University of Alaska Fairbanksand Anchorage and will be working toward adegree in Rural Development or EnvironmentalScience thru the Bristol Bay Campus. Shecurrently serves as a Board member for theNative American Rights Fund, EPA Region10 National Tribal Operations Committee,Bristol Bay Area Health Corporation, Bristol BayAlliance, and Bristol Bay Native Association.

New Board Member

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

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

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

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

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

NARF strives to protect the most important rights ofIndian people within the limit of available resources.To achieve this goal, NARF's Board of Directorsdefined five priority areas for NARF's work: (1) thepreservation of tribal existence; (2) the protection oftribal natural resources; (3) the promotion of humanrights; (4) the accountability of governments toNative Americans; and (5) the development of Indianlaw and educating the public about Indian rights,laws, and issues. Requests for legal assistance shouldbe addressed to NARF's main office at 1506Broadway, Boulder; Colorado 80302. NARF's clientsare expected to pay whatever they can toward thecosts of legal representation.

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

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

THE NATIVE AMERICAN RIGHTS FUND

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

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

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

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

About the LibraryThe National Indian Law Library (NILL) located

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

Nalionallndian Law LibraryYour Information Partner!

Library ServicesInformation access and delivery: Library users

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

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

Keep up with changes in Indian law withNILL's Indian Law Bulletins: The Indian LawBulletins are published by NILL in an effort keepNARF and the public informed about Indian lawdevelopments. NILL publishes timely bulletinscovering new Indian law cases, U.S. regulatoryaction, law review articles, and news on its web site.(See: http://www.narf.org/nill/bulletins/ilb.htm)New bulletins are published on a regular basis,usually every week and older information ismoved to the bulletin archive pages. When new

E. Ho'oipo Pa, Chairwoman Native HawaiianJaime Barrientoz, Vice Chairman Ottawa/ChippewaTom Acevedo Confederated Salish& Kootenai TribesDelia Carlyle Ak Chin Indian CommunityElbridge Coochise HopiBilly Frank Nisqually TribeJohn Gonzales San Ildefonso PuebloJames Roan Gray OsageKarlene Hunter Oglala LakotaPaul Ninham Wisconsin OneidaLydia Olympic YupikJAleutAnthony Pico Viejas Band of Kumeyaay IndiansWoody Widmark Sitka TribeExecutive Director: John E. Echohawk Pawnee

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NARF LEGAL REVIEW • VOLUME 30, NO.2 • SUMMERIFALL 2005

NARF Legal Review1506 BroadwayBoulder, CO 80302

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