"...the Department of Interior has handled
On September 17, 2002 U.S. District Court Judge Royce Lamberth found Secretary of Interior Gale Norton and Assistant Secretary Neal McCaleb in civil contempt of court for having engaged in litigation misconduct by failing to comply with the Court's Order of December 21, 1999, to initiate a Historical Accounting Project. The Court also found the Secretary and Assistant Secretary to be in civil contempt of the Court for committing a fraud on the Court by concealing the Department's true actions regarding the Historical Accounting Project, failing to disclose the true status of the TAAMS (a computer system know as the Trust Asset and Accounting Management System), filing false and misleading quarterly status reports regarding TAAMS and Bureau of Indian Affairs (BIA) Data Cleanup, and making false and misleading representations regarding computer security of Individual Indian Money (IIM) trust data.
In addition to the contempt charges, the Court ordered that the Phase 1.5 trial is set for May 1, 2003. A Phase II trial on the historical accounting was originally envisioned and described by the Court in the Opinion issued on December 21, 1999. With the conclusion of the contempt trial, it became clear that the Court, prior to a Phase II trial, must now consider granting further injunctive relief with respect to the fixing the system portion of the case and the historical accounting project. The Phase 1.5 trial will address additional remedies with respect to fixing the system portion of the case and approving an approach to conducting a historical accounting of the IIM trust accounts. The Interior defendants have until January 6, 2003 to file a plan for conducting a historical accounting of the IIM trust accounts and file a plan for bringing themselves into compliance with the fiduciary obligations that they owe to the IIM beneficiaries. The plaintiffs will also be able to propose their own plans on these matters if they choose. The filing of motions for summary judgment deadline is set for January 31, 2003.
The Court held that it had authority to appoint a receiver for the IIM trust as plaintiffs had requested, but declined to do so at this time. Instead, the Court ordered that a Special Master-Monitor be appointed for this case. The Court authorized the Special Master-Monitor to exercise the power to regulate all proceedings in every hearing before the Special Master-Monitor; monitor the status of trust reform and the Interior defendants' efforts as they relate to the duties declared by the Court and prescribed in the 1994 Act; periodically file reports with the Court to ensure that the Court and the plaintiffs receive complete and accurate information regarding trust reform efforts; file a final report with the Court when the defendants have brought themselves into compliance with their fiduciary duties as declared by the Court and prescribed in the 1994 Act; oversee the discovery process in this case and administer document production; and, file a final report with the Court on completed discovery.
In November 2001 the Special Master submitted his report on the computer security systems that were in place at DOI. He concluded that the DOI "has demonstrated a pattern of neglect that has threatened, and continues to threaten, the integrity of trust data upon which Indian beneficiaries depend." He found that DOI knew that its computer systems were insecure and had not taken any actions to correct these numerous and longstanding security deficiencies, and that protecting the trust funds has never been a priority. The Special Master noted that even after the publication of tens of thousands of pages detailing all of the problems of DOI's security system, rather than take corrective action, the DOI opted to conduct yet another review of the faulty system. The computer security system has ..." no firewalls, no staff currently trained/capable of building and maintaining firewall devices, no hardware/software solution for monitoring network activity including but not limited to hacking, virus and worm notification ... [and] a serious lack of wide area networking and security personnel in general." In a penetration test, access was gained into these computer systems housing the IIM trust accounts that allowed creating shared directories, accessing data, and making changes to these systems that included adding new fictitious user accounts.
The reports showed that the Interior continued to ignore its own and other agency reports. These reports concluded that those very systems have been open to compromise and due to the Interior's pattern of neglect that continued to threaten the integrity of the trust data which Indian beneficiaries depend on, the Court had no choice but to order that Interior disconnect from the internet all the information systems that house or provide access to individual trust data.
In addressing the Historical Accounting Project, the Court found that the Department of Interior, in failing to initiate a Historical Accounting Project, did not take any substantive measures during the eighteen month period after the Court's Phase I trial decision to provide the plaintiffs with the accounting that they are legally entitled to receive, ..."except publishing a sham notice in the Federal Register". The Court went on to say that it is "both saddened and disgusted by the Department's intransigence."
The Court found that the Department concealed its true actions regarding the Historical Accounting Project from March 2000 until January 2001. "...The evidence presented and representations made at this contempt trial with respect to this specification prove just how deceitful and disingenuous the defendants can be towards both the individual Indian trust beneficiaries and this Court. The Court's factual findings further demonstrate the lengths the Department will go to avoid having to provide the 300,000 plaintiffs in this action with an accounting of their money held in trust by the United States."
In intentionally filing false and misleading quarterly reports to the Court regarding the TAAMS and BIA Data Cleanup, the Interior defendants mislead the Court into believing, for more than eighteen months, that significant headway had been made on these two subprojects when in reality neither project is even remotely close to being completed. "...In my fifteen years on the bench I have never seen a litigant make such a concerted effort to subvert the truth seeking function of the judicial process." "...The Department of Interior is truly an embarrassment to the federal government in general and the executive branch in particular. The 300,000 individual Indian beneficiaries deserve a better trustee-delegate than the Secretary of Interior."
Between March 2000 and May 2001, the plaintiffs filed several motions arguing that the Department of Interior was not taking proper measures to ensure the security of the trust information maintained in the Department's computer systems. The Court wrote that it had no difficulty in finding that the Interior defendants made false and misleading representations regarding the computer security of IIM trust data. "...There is no question that the defendants, by representing to the Court (and plaintiffs) for more than a year that they were in the process of making their computer systems more secure when in reality they were doing virtually nothing, committed fraud on this Court."
After the Opinion
"In February of 1999, at the end of the first contempt trial in this matter, I stated that I have never seen more egregious misconduct by the federal government. ....Now, at the conclusion of the second contempt trial in this action, I stand corrected. The Department of Interior has truly outdone itself this time. The agency has indisputably proven to the Court, Congress, and the individual Indian beneficiaries that it either unwilling or unable to administer competently the IIM trust. Worse yet, the Department has now undeniably shown that it can no longer be trusted to state accurately the status of its trust reform efforts. In short, there is no longer any doubt that the Secretary of Interior has been and continues to be an unfit trustee-delegate for the United States." U.S. District Judge Royce Lamberth
A Brief Historical Perspective
In 1887, in an attempt to destroy tribal organization, the United States Congress enacted the General Allotment Act (Dawes Act) that called for the division of some tribal lands among individual tribal members. Imposed upon Indians without their consent, the Act gave tribal members 40, 80, 160, or 320-acre parcels. Allotted land was held in trust by the U.S., which negotiated leases money belonging to individual Indians on some of these lands to non-Indians for grazing, mining, and logging as well as oil and gas production. Income from these leases was supposed to be deposited in the U.S. Treasury and checks issued to landowners. This income forms the core of the IIM trust now involving more than 500,000 present and past account holders. The historic and present mismanagement of the IIM trust is the basis for the lawsuit. In 1934, the government repudiated the allotment policy by enacting the Indian Reorganization Act of 1934. It ended allotments, and made the individual Indian trust perpetual. The United States is the trustee of the IIM trust. Management of the IIM trust is the responsibility of the Department of the Interior and the Treasury. The trustee has consistently and egregiously failed to perform the most fundamental fiduciary duties and continues to do so. Over the years, the trust management system deteriorated and is essentially nonfunctional. The government has never provided account holders an accounting. Ownership records are wildly inaccurate, so the wrong people often get paid and there is no way to accurately determine to whom income belongs. The gross mismanagement and inaccuracies are mind-boggling...
In 1988, Congress held more hearings on the mishandling of the IIM trust and, in April 1992, the House Committee on Government Operations issued a report entitled Misplaced Trust: The Bureau of Indian Affairs' Mismanagement of the Indian Trust Fund. The report stated that Interior had made no genuine effort to address the extraordinary mismanagement and has willfully disobeyed congressional mandates aimed at forcing the Interior to correct trust management practices.
Based largely on the findings of this report, Congress passed the Indian Trust Fund Management Reform Act in 1994 (1994 Act). Among other things, it established an Office of the Special Trustee for American Indians within the Department of the Interior. A Special Trustee heads the Office, but was given no final decision making authority. The Interior vigorously opposed the Act and ever since has built roadblocks to prevent the Special Trustee from instituting any meaningful reform. In addition, Congress failed to appropriate sufficient funds to properly implement the Act. No lasting changes were forthcoming...something had to be done.
The NARF Class Action Lawsuit
The IIM accounts had an aggregate balance of more than $450 million, with $300+ million passing through them each year. These are the main objectives of this lawsuit: (1) to require the United States to institute reforms which will enable it to properly manage all trust assets; (2) to provide an accurate and complete accounting to each beneficiary; and (3) to correct accounting balances in accord with the accounting.
Elouise Pepion Cobell is the lead plaintiff. A member of the Blackfeet Indian Tribe in Montana, she helped organize the Blackfeet National Bank. For 13 years, she served as Treasurer of the Tribe and has also served as Controller. She is now Project Director of the IIM Trust Correction, Recovery, and Capacity-Building Project of Blackfeet Reservation Development Fund, Inc.
Cobell has talked to dozens of people and over the years has heard hundreds of heartbreaking stories of people trying to get their checks money that is theirs! "They would beg the agents at the BIA office for their checks and routinely be turned away, told to come back next month or next year," she recalls. "People needed money to buy food, clothing and medicine...it was terrible what they had to go through." [Standing Strong, Native America's magazine, Fall/Winter 2001]
In November 1996, Judge Royce C. Lamberth, the judge assigned to the case, signed an order consented to by the government requiring the government to produce all records pertaining to the five-named plaintiffs representing the class in the case. Although they initially said they would do so, the government refused to produce the documents and NARF filed a motion to hold them in contempt for failure to comply. A contempt trial was held, Judge Lamberth ruled in 1999 that then Secretary of Interior Bruce Babbitt, Secretary of Treasury Robert Rubin, and Kevin Gover, Assistant Secretary of Indian Affairs, were in civil contempt of court. During this contempt trial it was later admitted by the government the Treasury Department was destroying 162 boxes of documents relevant to this case. They withheld this information for three months.
NARF and plaintiffs have won every phase of this litigation. The trial in the first phase of the case lasted from June 10 to July 21,1999. Thousands of pages of testimony were taken, including an admission from Secretary Babbitt that the "fiduciary responsibilities" of the U.S. are "not being fulfilled."
Judge Lamberth issued his ruling on December 21, 1999 calling the case a "stunning victory" for the Indian plaintiffs. He was severely critical of the DOI and Treasury, noting the particularly severe impact on the plaintiff class: "The United States' mismanagement of the IIM trust is far more inexcusable than garden variety trust management of a typical donative trust. For the beneficiaries of this trust did not voluntarily choose to have their lands taken from them...[the] plaintiffs' class includes some of the poorest people in this nation. Human welfare and livelihood are at stake." The court ordered the government to take steps necessary to reform the system and retained jurisdiction for at least five years to ensure that reform is carried through.
The government appealed almost immediately. However, on February 23, 2001, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously upheld the lower court ruling. In a landmark ruling the Appeals Court upheld the Court's ability to closely monitor the Department's reform efforts and held that the United States does indeed have an obligation to account for every dollar from the inception of the trust.
In November, 2001 the Court ordered current Secretary of the Interior Gale Norton and Assistant Secretary for Indian Affairs Neal McCaleb to show cause why they should not be held in civil contempt of court for not initiating an historical accounting project ordered by the Court in 1999, concealing their true actions on the project and the TAAMS project, and the filing of false quarterly reports. In response, without consulting any Native leaders, Secretary Norton announced a plan to form a new Bureau of Indian Trust Asset Management that would strip the BIA of all of its trust responsibilities. Tribal leaders denounced the plan as ill-conceived and said that if the BIA no longer manages the trust then other functions could be easily taken over by a number of different agencies. From December 2001 to February 2002, the Court held a second contempt trial. This one demonstrated that Secretaries Babbitt and Norton engaged in a pattern and practice of obstruction of justice, fraud on the Court and violation of Court orders. In addition, a fifth contempt charge relating to computer failures was added.
During the summer of 2001, the General Accounting Office issued yet another warning that the computer systems and corresponding Internet connections that maintain the Indian trust records were lacking even minimal security and were vulnerable to hackers. Very little was done about it. Special Master Alan L. Balaran, with the Court's permission, hired a firm to try to hack into the Trust Fund. They hacked successfully, not once but twice, the second time setting up a bogus account in Balaran's name. They proved that anyone with off-the-shelf software tools could steal money from the system and manipulate data. Moreover, any changes to the accounts were without any audit trails!
As a result, Judge Lamberth ordered, on December 5, that all Interior departments disconnect from the Internet all access to individual Indian trust data. The Interior overreacted and shut down all their computer systems. As the Christmas holidays were nearing, more than $15 million in trust fund payments to over 43,000 Indian beneficiaries were not paid. In spite of the fact that Judge Lamberth issued a second order on December 17 allowing the Interior to reactivate the computer systems necessary to issue checks, the Interior continued to play political games in an attempt to punish and divide Indian Country.
June 10, 1996
November 27, 1996
March 3, 1997
December 9, 1998
January 11 - 22, 1999
February 22, 1999
June 10, 1999 - July 21, 1999
December 21, 1999
January 3, 2000
February 23, 2001
May 25, 2001
July 3, 2001
June - September 2001
November 14, 2001
November 14, 2001
December 5, 2001
December 17, 2001
November 2001 - Feb. 2002
Dec. 10, 2001 - Feb. 21, 2002
March 20, 2002
April 17, 2002
April 18, 2002
September 17, 2002
As this is an on-going case, there are new developments almost on a daily basis. For complete updates, please visit our Web site www.narf.org or visit www.indiantrust.com.
I am a Cheyenne woman nothing can change that. As such, I view life through a cultural lens. Furthermore, as but one of our Cheyenne nation's many prayer women, I have a sacred point of view, a place from which I observe the world. This is the context of my reflections tonight.
Our most beloved and wise ancestors teach us that the two most sacred moments in life are birth and death, and that regardless of what we confront on the road of life we must be realistic and optimistic. September 11, 2001 was a day of infamy. It is important to recognize its terror and tragic human dimensions, but it is just as important to acknowledge its sacredness and its monumental dimensions. It also was a day of sympathy, empathy, compassion, courage, and love.
It is a heroic Cheyenne Dog Soldier story, of brave men and women on United Airlines Flight #93, who made a stand to the death. They chose to go down in a plane in a sparsely populated Pennsylvania field, rather than become the fourth suicide plane aimed at another metropolis or strategic site. We will never know how many lives were saved as a result of their choice.
It is an incredible love story of compassionate, extraordinary individuals helping others down the burning, smoke-filled stairwells of the twin towers. The Indian women's tremolo for courage and honor goes out to the four sacred directions for all of them, for the firemen, policemen, and clergy "just doing their jobs," some making the final sacrifice under the rubble of tons of twisted steel at the base of the twin towers.
The Pentagon is a true story about the heart and spirit of America, of the place that houses our country's Department of Defense. The structure is a large lodge, a Peace Teepee, where our peace chiefs and warriors sit in council and discuss how to defend freedom in our quest for world peace.
The Winds of Change converged upon this Great Turtle Island with such force that they send shock waves around the world, and we can still feel the after shocks 364 days later. I am reminded of the World Trade Center, the Pentagon, and United Airlines Flight #93 every time I go to an airport and fly in a plane. I am reminded of it when I hear of what possibly could be additional terrorist activities or the use of biological weapons. I am reminded of it when I pick up a newspaper or a magazine, or when I turn on the television set. I am reminded of it when I see parents with children and my heart aches for those that were orphaned on September 11th and the fifty-four children who will never know one of their parents.
As a prayer woman, I am reminded of it every day as I ask for blessings upon all life, especially the four children/relations of earth, the white, red, yellow, and black peoples of the world. I am reminded of it when I offer sacred cedar, sage, or sweet grass for individual and world peace. Oahvah-nah-xhe-da-notse Peace.
For the past 364 days, I have had to look back over my life as a Cheyenne woman and attempt to reconcile my indigenous heritage and history with what happened to us last year. I come from a long line of people that greeted the many others that came to our beautiful, abundant land after 1492. Unfortunately, there are historical precedents of terrorism in American history in the way that our government has politically and militarily interacted with native peoples. As indigenous people we have had a lengthy experience with orphaned children and grief.
FOUR EXAMPLES OF TERRORISM
1830 Indian Removal Act
Pine Ridge Reservation, South Dakota
Nez Perce say they made friends with Lewis and Clark and agreed to let them pass through their country.
In April 1879, Chief Joseph also stated in a narrative:
As indigenous peoples, the tears we shared, and still share, with the people of America, and with the rest of the world, are tears that come from the experience of having walked through similar situations. More than that, however, they are tears from the oldest people of this land the grandparent generation. Throughout all the years and countless changes, grandparents have had the water of life return to them through tears, transformative tears which are called "Diamond Water." The grandparents' tears that came unexpectedly on September 11th are tears of love over the needless loss of innocent lives, RE-visiting the places "where we cried," feeling an overwhelming sense of injustice, and experiencing newborn fear.
Grandparents teach us many things about what it is to be human. They teach about respect. They teach about looking for the positive, rather than dwelling upon the negative. They teach that people are more important than material things. They teach about slowing down rather than rushing through life. They teach about being cautious as we walk on earth.
They also teach about having a holistic worldview that is grounded in balance and harmony that honors our spirit-centered identities, on a spirit-filled journey in a spirit-filled world. They teach about achieving wholeness within the self, about being a whole person who is balanced physically, emotionally, mentally/intellectually, and spiritually.
This common indigenous holistic concept is best illustrated by the symbol of a circle the inclusive earth circle of life. It represents all time and all space our entire past and where we will go tomorrow. Astronaut John Herrington, a Chickasaw man will be taking indigenous people into space on November 9, 2002 on the space shuttle Endeavour. We are all travelers along life's road and Commander Herrington's ten-day walk among the stars will be enfolded into this circle.
The circle is a cyclical road that is enduring and never-ending. It is characterized by respect, in which all life is considered as one. It is a way of understanding the profound ancestral view of completeness and wholeness, which encompasses the totality of life. The circle also represents our beloved Earth Grandmother/Mother, who has given each of us an identity, a purpose, and a responsibility. We are travelers along life's road and we are each responsible for tomorrow and all that the future holds.
Life is an incredible earth journey in an interdependent, inter-related, inter-connected, and inter-relational universe, in which everyone and every thing matters. Since all things are connected, then what happens to one affects the balance maintained by the whole. Indigenous philosophy states it as "the pain of one is the pain of all; the honor of one is the honor of all," which is about wholeness, mutuality, and sacred relationships of respect. Because of our connections we can feel the universal heartbeat that reverberates in our oceans of relations. It is also the heartbeat of Earth Grandmother/Mother and the heartbeat of wholeness.
Since all things are related to one another, then all things have a degree of responsibility for the whole. Your actions affect everyone else, and the actions of everyone affect you. Our grandparents teach that life is a constant reciprocal process, illustrated by the fact that humans inhale what the trees exhale, and trees inhale what humans exhale. Put another way, taking requires giving, either in the form of sacrifice or unconditional gifts. What are we going to give back for the sacrifices made at Pennsylvania, the Pentagon, and Ground Zero?
On November 13, 2001, Richard Masur, a film actor and friend, my daughter Montoya Whiteman, who also is a Cheyenne prayer woman, and I went to Ground Zero. I had been to Ground Zero before in my collective tribal memory and in my bloodline. Whatever the motivation historical, spiritual, or otherwise, Montoya and I both knew that we just had to go there to pray and add our prayers to all the others. I also felt that we had to support Richard, who had spend virtually every day at Ground Zero visiting with firemen, policemen, rescue workers, or anyone who wanted to talk. In one of our conversations, I mentioned that we were both coming to New York City and wanted to offer prayers at a place as close to Ground Zero that we could get. "Would it be possible?"
Working through the Red Cross Spiritual Care Center, Richard was able to get clearance for us to go on site, much to my amazement. Upon arriving in New York, we had to file the necessary paperwork and get identification badges. We three must have been quite a sight on the subway to Brooklyn--a very recognizable movie star, a young Cheyenne and Arapaho woman who bears a strong physical resemblance to the older Cheyenne woman with spiked silver hair. On the return subway trip to Manhattan, we agreed to meet at Grand Central Station the next morning from where we would again go by subway to Ground Zero.
That morning my daughter and I were both contemplative and quiet as we prepared ourselves spiritually and emotionally for the day ahead. It felt much the same as going into ceremony, which was what it was. Montoya reverently packed our sacred objects in her backpack: the smudge pot; instant burning charcoal; wooden matches; Grandmother's sacred perfumes, sage, cedar, and sweet grass; eagle feather fan; and her pipe. I carried my small traveling pipe on my person.
We met Richard at the appointed time and place, went underground and came up close to the George Gustave Heye Center of the National Museum of the American Indian. I had been in the area numerous times.
We walked to one of the Respite Centers and waited inside the building where the rescue workers ate, slept, showered, and rested. Richard went to find the place for our ceremony and returned with a small golf cart-like vehicle. We each put on a hard hat, and I climbed into the passenger seat beside Richard. Montoya sat in the back with a Public Relations Officer named Liz, and a youthful Chaplain. Away we went, through a congested thoroughfare to the place where some of the cleanup workers were waiting. We were met and greeted respectfully by two men and two women, representatives of the fifty natives in the cleanup crews. Ironically they were helping to untangle and disassemble the wreckage of the megastructures that many Mohawk Ironworkers, the "Skywalkers," had helped build. We were informed that it was good that we were there as another body had been located minutes prior to our arrival.
Reality hit. I needed the reassurance of the prayer circle because what I had seen on the ride in had finally reached a level of feeling, somewhere deep in my heart and spirit. It is still there and I will carry it as a sacred trust for the remaining days of my life. "Diamond Water" returned me to life and to the blessing ceremony that we were there to do. We made prayer offerings, asked for blessings upon the people and New York City, prayed for the healing of earth, and gave our loving farewells to the spirits on their spiritual journey back home. We smudged the four workers, Liz, the Chaplain, and Richard. I smudged Montoya and Montoya smudged me.
My prayer and prayer song were accompanied with tears and more tears. For us, tears are the highest form of prayer. It was "high ceremony" that day on ground made sacred by sacrifice, courage, compassion, and love. It was one of the most reverent of days in my sixty-eight years of life. I read later in Liz's news release:
At some point, it was as if I had suddenly developed "Eagle" wings and vision and I was looking down from some very high place above. Not only could I see what happened on September 11th, I could see the "Trail Where the Cherokee Cried;" I could see two of my great-grandmothers at Sand Creek, one rapidly riding away on a pony, her little brother behind her. I saw so much more and I understood even more.
I sadly understood how far from the spiritual center that some people have strayed, made apparent by the lack of respect for human life. It was obvious that the inter-connectedness and inter-relatedness of all life is severely weakened or non-existent. Thus, it is critical that our teachers and grandparents continue to pass on their teachings about what it is to be a human being, a fully developed whole person who stands respectfully and responsibly in the great circle of life. Simply, we cannot continue to be fragmented in self or disconnected from one another as the four children of earth from the sacred white, red, yellow, and white quarters of the universe.
Like our grandparents, I understood the necessity for living in a holistic way, knowing that individual actions have an impact upon the whole that we must remember that "the pain of one is the pain of all, and that the honor or one is the honor of all." I also understood the need for continuous self and collective development, especially of the heart that makes us compassionately human and becomes harmony in motion.
I know that the Eagle is sacred, as did all my ancestors, but on that November day, on Manhattan Island, the Eagle's view gave me new understanding. I learned that day what humility is, and how insignificant humans are in the larger plan of life. It is a loving plan that includes all our relations in an inclusive circle that is whole and complete. The circle represents the totality and oneness of life.
I understood what friendship is as I looked into Richard's face, a face that so many have seen or will see on film yet he is the friend of my heart. He honored the necessity of Montoya and I having to maintain our roles as prayer women and offering prayers at Ground Zero.
I understood the self-confident strength of peace in the eyes of the two Haudenosaunee men, who were doing the most dangerous of work, this time on Ground Zero and not in the sky. They trusted me in ceremony and walked across cultural-spiritual lines just as easily as they walk on narrow steel girders high in the New York skyline.
I understood the flaming fire of the heart fueled by love in the faces of the two native women. Their beautiful smiles warmed the landscape of my heart and dissipated yesterday's pain and the horror of what I was seeing and feeling at the edge of the pit still smoldering in some places from the fire within.
Standing tall in his white hard hat with the design of a cross on the front, I understood the spiritual strength of another faith, in the young man who without question, respectfully let me pray and sing in my own way.
I understood respect in the bearing of another woman from another culture as she let the eagle feather fan brush her entire body and her heart with sacred medicine plants as she stood reverently under the large red crane that was suspended above us.
I understood what love is as I looked into the future that stood beside me in my daughter and I could trust that Grandfather Sacred Above and Grandmother Sacred Below would be well served in the tradition of her Cheyenne and Arapaho ancestors. I understood her vows and many ceremonial sacrifices, which have guided her to walk and dance through life in a sacred manner, in rhythm with the heartbeat of Earth. I also understood that she is my hope for tomorrow, just as I see a hopeful future in the face of every child and young person.
Ceremony completed, we climbed back onto the little pony of a vehicle and went back to the Respite Center to wash the dirt off our shoes. I realized then that some of the dust of my relatives was mixed in with some possibly hazardous substances on the ground. I understood why our elders teach us to walk gently on earth.
Although Richard had three respirators in his backpack, we did not wear them. It was enough that we had done ceremony in hard hats.
I also understood the necessity of quietness and silence as the three of us slowly walked away from Ground Zero. As two Cheyenne prayer women, we left our prayers of love and compassion there, a part of the spiritual journeys we each walk. We gave our prayerful tears, the "Diamond Water" of life back to the Earth Grandmother/Mother at Ground Zero.
(Henrietta Mann is a Northern Cheyenne religious leader and the mother of NARF employee Montoya Whiteman. It is with great honor and compassion that we share her reflections on the tragedy of September 11, 2001 with our readers.)
Pele Defense Fund Advances Protection of Puna Rainforest
On August 26, 2002, the Hawaii Third Circuit Court entered a judgment in the case of Pele Defense Fund vs. The Estate of James Campbell et al., that permanently enjoins activities of the Campbell Estate that may interfere with traditional subsistence and cultural activities in Wao Kele o Puna. The case had its origins in the opposition to a State plan for massive geothermal development. That plan was eventually abandoned by the State, in part because of opposition from PDF and others opposed to adverse impacts from geothermal development.
In December, 1985, the State exchanged approximately 27,800 acres of public ceded lands, including the Wao Kele o Puna Natural Area Reserve and other Puna lands on the Island of Hawai`i, for approximately 25,800 acres of land owned by the Estate of James Campbell at Kahauale`a. PDF claimed the exchange was a breach of the trust created under the Hawaii Admission Act and the Hawaii Constitution. Legal challenges to the land exchange however, were turned down by the courts, but the subsistence hunting and gathering claims were successful.
The geothermal project having been abandoned and the Estate planning to sell Wao Kele o Puna as part of its termination in 2007, PDF leaders and attorneys asked the Third Circuit Court to supervise settlement discussions that might lead to the acquisition of Wao Kele o Puna by a charitable organization. The Court agreed to lead settlement discussions with regard to the final ruling and judgment, resulting in the entry of the final judgment this past August. The parties continue to discuss possible avenues for land acquisition.
Chippewa Cree Tribe Water Rights Settlement Finalized
On December 9, 1999, the Rocky Boy's water rights settlement bill was signed into law by the President and became Public Law No. 106-163. The Act was the culmination of 17 years of work by the Chippewa Cree Tribe seeking a fair settlement of the Tribe's water rights claims in Montana. The Native American Rights Fund has represented the Tribe in the settlement of its water rights claims since 1987. The Act ratified a water rights settlement compact between the Tribe and the State of Montana, allocates 10,000 acre feet of federal storage water for future Tribal drinking water needs, and authorized $47 million to be appropriated for the Tribe.
Court Rules Against Government in "Kennewick Man" case
Several scientists, i.e., anthropologists, archeologists, museumologists, petitioned DOI for permission to conduct extensive studies of the remains before reburial by the Tribes. DOI denied the scientists petition and granted the Tribes' petition. At that point, the scientists sought review and reversal of DOI's decision in the federal district court of Oregon. The court heard arguments and issued an opinion requiring DOI to reconsider its decision in light of analysis of a number of questions posed in the Court's opinion. DOI reconsidered and adhered to its original decision. The scientists again filed suit in Oregon court seeking review and reversal of DOI's decision. Briefs were filed and oral argument was held on June 23, 2001. The Court invited NCAI to sit at counsel table and participate in oral argument. NARF attorney Walter Echo-Hawk argued for NCAI.
The Bonnichsen case raised several important issues requiring interpretation of the Native American Graves Protection and Repatriation Act. These issues include whether the scientists have free speech rights to study the remains; whether the use of oral religious traditions by DOI as a basis for finding "cultural affiliation" between the remains and the Tribes violates the anti-establishment of religion clause of the Constitution; whether DOI's decision was arbitrary and capricious; and whether the remains are "Native American" as defined in NAGPRA.
On August 30, 2002 Magistrate Judge John Jelderks, U.S. District Court for the District of Oregon, issued a ruling that vacated the Department of Interior's decision awarding the remains of "Kennewick Man" to the claimant Tribes for reburial. The Court ordered that the government shall not transfer the remains to the Tribal Claimants and shall allow the plaintiffs (scientists) to study the remains of "Kennewick Man." Before the remains are to be transferred, the plaintiffs are required to submit a proposed study protocol to the government within 45 days. Upon receipt, the government in turn has 45 days to respond to the proposed protocol. However, their response must allow for a study of the remains.
In determining whether the remains are "Native American" as defined in NAGPRA, the Court found that its interpretation of the statute as requiring a "present-day relationship" is consistent with the goals of NAGPRA and the intent of Congress. The Court found that the Secretary of Interior did not provide evidence that the remains are "Native American" under NAGPRA and that the Secretary's findings of cultural affiliation is arbitrary and capricious. In addressing whether the use of oral religious traditions violates the anti-establishment of religion clause of the Constitution, the Court ruled that in this case it did not. However, the Court noted that the use of oral tradition does not establish how far in the past cultural continuity extends and that oral traditions may not be reliable. In the plaintiffs assertion that their First Amendment free speech rights were violated by the defendants by refusing to allow them to study the remains, the Court ruled that since the plaintiffs are entitled to study the remains on statutory grounds, the Court does not need to decide this Constitutional question.
The Tribes charge that this decision removes any barriers that would prevent scientists from demanding access to all Native American human remains for their research and study, regardless of whether the remains were 20 or 20,000 years old. Under NAGPRA, Congress intended that ancestral remains of tribes be treated with respect as non-Indian remains are treated. The Court chose to substitute its own judgment over those of the federal agencies that are charged with the implementation of NAGPRA.
On October 21, 2002, Magistrate John Jelderks granted a request by the four Pacific Northwest Tribes to intervene in the lawsuit. The government is considering an appeal, but has not made an official decision as of yet. The scientists complained that by allowing the Tribes to intervene, the resolution of the lawsuit could be delayed for another two to four years.
Native American Rights Fund Receives Education Grant From W.K. Kellogg Foundation
"Tribes are the catalyst. They can bring together tribal, state and federal resources to improve the learning experience of more than 500,000 Native American school age children," says John Echohawk, NARF Executive Director. "With this funding from W.K. Kellogg Foundation, we will be able to expand our current work in this area and develop models that may be of use to other tribes. We've proven that nobody cares more about tribal students than the 556 tribes in this country."
NARF's efforts will continue to focus on developing effective tribal education departments and tribal education codes. Through these efforts, tribes can revamp education data collection, reporting and communication systems for Native American students. They can develop and lead initiatives that draw on other community resources such as programs for truancy intervention, parent and family involvement and violence and gang prevention.
NARF's work will help increase the number of Native American parents prepared to promote their children's educational development, facilitate early detection of potential learning problems, and broaden the academic opportunities for Native American children.
"Increasing the number of tribes who assume a leadership role in doing what it takes for Native American students to succeed is the most important outcome of this Project" continues Echohawk. "There are five NARF attorneys who will be working part-time on this Project who will continue NARF's 32 year involvement in the area of Indian education."
For more information about NARF's Indian education legal project and an opportunity to work in partnership with NARF in improving education for tribal students, contact our office in Boulder, Colorado during business hours, Monday-Friday from 8:30 a.m. to 5:30 p.m. (Mountain Time).
The W.K. Kellogg Foundation was established in 1930 "to help people help themselves through the practical application of knowledge and resources to improve their quality of life and that of future generations." Its programming activities center around the common vision of a world in which each person has a sense of worth; accepts responsibility for self, family, community, and societal well-being; and has the capacity to be productive, and to help create nurturing families, responsive institutions, and healthy communities.
To achieve the greatest impact, the Foundation targets its grants toward specific areas. These include: health; food systems and rural development; youth and education; and philanthropy and volunteerism. Within these areas, attention is given to the cross-cutting themes of leadership; information and communication technology; capitalizing on diversity; and social and economic community development. Grants are concentrated in the United States, Latin America and the Caribbean, and the southern African countries of Botswana, Lesotho, Mozambique, South Africa, Swaziland, and Zimbabwe.
John Gonzales, Governor of the San Ildefonso Pueblo of New Mexico, was elected to the Native American Rights Fund Board of Directors, replacing Roy Bernal who completed three terms on the Board. John Gonzales graduated with a Bachelor of Arts degree in Social/Political Science from Stanford University in 1980 and received his Masters Degree in City Planning from the Massachusetts Institute of Technology in 1982. John has served on the San Ildefonso tribal council for 12 years since 1983 and also currently serves as the Vice Chairman of the Eight Northern Indian Pueblo Council. He was inducted into the Stanford University American Indian Alumni Hall of Fame in 1998.
Mr. Gonzales brings with him a history of outstanding commitment to and involvement in Indian country. He currently serves as the Albuquerque Area Vice President of the National Congress of American Indians (NCAI) and has also served as its President and First Vice President.
John has also been very committed to the arts. With the encouragement of his father, Lorenzo, a well-established potter, John immersed himself into the centuries old tradition of pottery making and quickly became well-known for his art, wining first place at the Santa Fe Indian Market and exhibits at the Iris and R. Gerald Cantor Center for the Visual Arts at Stanford University. He has served as Commissioner for the City of Santa Fe Arts Commission and as Director of the Southwest Association for Indian Arts.
The NARF Board of Directors and staff look forward to working with Mr. Gonzales.
The National Indian Law Library (NILL) located at the Native American Rights Fund in Boulder, Colorado is a national public library serving people across the United States. Over the past thirty years NILL has collected nearly 10,000 resource materials that relate to federal Indian and tribal law. The Library's holdings include the largest collection of tribal codes, ordinances and constitutions in the United States; legal pleadings from major American Indian cases; law review articles on Indian law topics; handbooks; conference materials; and government documents. Library users can access the searchable catalog which includes bibliographic descriptions of the library holdings by going directly to: the catalog or by accessing it through the National Indian Law Library link on the Native American Rights Fund website at www.narf.org. Once relevant materials are identified, library patrons can then choose to review their selected materials, request mailed copies for a nominal fee, or borrow materials through interlibrary loan. In addition to making its catalog and extensive collection available to the public, the National Indian Law Library provides reference and research assistance relating to Indian law and tribal law. NILL serves a wide variety of public patrons including attorneys, tribal and non-tribal governments, Indian organizations, law clinics, students, educators, prisoners and the media. The National Indian Law Library is a project of the Native American Rights Fund and is supported by private contributions. For further information about NILL, visit: http://www.narf.org/nill/index.html or contact Law Librarian David Selden at 303-447-8760 or firstname.lastname@example.org. Local patrons can visit the library at 1522 Broadway, Boulder, Colorado.
The Native American Rights Fund (NARF) was founded in 1970 to address the need for legal assistance on the major issues facing Indian country. The critical Indian issues of survival of the tribes and Native American people are not new, but are the same issues of survival that have merely evolved over the centuries. As NARF is in its thirty-second year of existence, it can be acknowledged that many of the gains achieved in Indian country over those years are directly attributable to the efforts and commitment of the present and past clients and members of NARF's Board and staff. However, no matter how many gains have been achieved, NARF is still addressing the same basic issues that caused NARF to be founded originally. Since the inception of this Nation, there has been a systematic attack on tribal rights that continues to this day. For every victory, a new challenge to tribal sovereignty arises from state and local governments, Congress, or the courts. The continuing lack of understanding, and in some cases lack of respect, for the sovereign attributes of Indian nations has made it necessary for NARF to continue fighting.
NARF strives to protect the most important rights of Indian people within the limit of available resources. To achieve this goal, NARF's Board of Directors defined five priority areas for NARF's work: (1) the preservation of tribal existence; (2) the protection of tribal natural resources; (3) the promotion of human rights; (4) the accountability of governments to Native Americans; and (5) the development of Indian law. Requests for legal assistance should be addressed to NARF's main office at 1506 Broadway, Boulder, Colorado 80302. NARF's clients are expected to pay whatever they can toward the costs of legal representation.
NARF's success could not have been achieved without the financial support that we have received from throughout the nation. Your participation makes a big difference in our ability to continue to meet ever-increasing needs of impoverished Indian tribes, groups and individuals. The support needed to sustain our nationwide program requires your continued assistance.
NARF Annual Report. This is NARF's major report on its programs and activities. The Annual Report is distributed to foundations, major contributors, certain federal and state agencies, tribal clients, Native American organizations, and to others upon request. Editor, Ray Ramirez (email@example.com).
The NARF Legal Review is published biannually by the Native American Rights Fund. Third class postage paid at Boulder, Colorado. Ray Ramirez, Editor (firstname.lastname@example.org). There is no charge for subscriptions, however, contributions are appreciated.
Tax Status. The Native American Rights Fund is a nonprofit, charitable organization incorporated in 1971 under the laws of the District of Columbia. NARF is exempt from federal income tax under the provisions of Section 501 C (3) of the Internal Revenue Code, and contributions to NARF are tax deductible. The Internal Revenue Service has ruled that NARF is not a "private foundation" as defined in Section 509(a) of the Internal Revenue Code.
Main Office: Native American Rights Fund, 1506 Broadway, Boulder, Colorado 80302 (303-447-8760) (FAX 303-443-7776). http://www.narf.org
Washington, D.C. Office: Native American Rights Fund, 1712 N Street, NW, Washington, D.C. 20036 (202-785-4166) (FAX 202-822-0068).
Alaska Office: Native American Rights Fund, 420 L Street, Suite 505, Anchorage, Alaska 99501 (907-276-0680) (FAX 907-276-2466).