Courtesy Native American Rights Fund
NARF Attorney Staff Hard At Work in the 1980s

NARF Marks another Big Anniversary

Michelle Tirado

The Native American Rights Fund turned 45 years old in 2015. Just as it has done with other anniversaries since 1970, NARF is doing a lot of looking back this year—and it has so much to look back at.

NARF, a non-profit 501c (3) organization, began as a pilot project of California Indian Legal Services. Equipped with only three attorneys, its goal was to tackle Native American legal challenges that are national in scope. It separated from CILS in 1971, moving to Boulder, Colorado, where it remains.

It could not have emerged at a better time: the tail-end of the termination era and the dawn of the civil rights movement in Indian country. There were a lot of wrongs—broken treaties and sovereignty-stripping federal policies—and too few Indian attorneys to right them where they could best be righted, in the courts.

NARF attorneys, which today number 16, are behind many of Indian country’s landmark cases, from the organization’s first, which culminated in the enactment of the Menominee Restoration Act in 1973, to United States v. Washington, a case that reaffirmed the treaty fishing rights of Washington tribes, to the class-action Indian accounts mismanagement lawsuit Cobell v. Salazar to Agua Caliente v. Coachella Valley Water District, et al., a water rights case won this spring – and dozens more in between.

But the footprint of this team of modern-day Indian warriors goes beyond the courtroom. It tracks into the corridors of Congress, with, for example, its instrumental work on legislation such as the Native American Graves Protection and Repatriation Act (NAGPRA), and the international arena, committing its resources to global indigenous issues and climate change.

While today the number of Native American attorneys exceeds 2,500, according to the Native American Bar Association, NARF still has plenty of work to do, whether it is fighting for tribal existence in the courts; developing codes for tribal governments; preserving tribal cultural and natural resources; and growing, shaping, and promoting knowledge of Native American law.

By the Numbers: What’s NARF up to in 2015?

Water Rights: Although Winters v. United States in 1908 and Arizona v. California in 1963 reserved special water rights for Indian reservations—allocations to meet present and future needs—only 29 out of 566 federally recognized tribes have secured their rights, according to NARF.

Tribal water rights have been and undoubtedly will be well into the future a focus for NARF. Since its inception, it has helped nine tribes achieve settlements and is currently at various stages of securing settlements for the Agua Caliente Band of Cahuilla Indians, Klamath Tribes of Oregon, Nez Perce Tribe of Idaho, Tule River Tribe of California, and Kickapoo Tribe of Kansas.

The Agua Caliente’s lawsuit was filed in 2013 in the U.S. District Court for the Central District of California against Coachella Valley Water District and Desert Water Agency, both water agencies that provide water services in the Palm Springs area and to the tribe’s reservation. In this case, the tribe sought to secure its reserved and aboriginal water rights to groundwater. In March 2015, a federal judge applied the Winters’ Doctrine and ruled that the tribe’s reserved right can be fulfilled by groundwater.

RELATED: Agua Calente’s Legal Tug-of-War Over California Groundwater

This is the first Indian water rights case to include ground water and surface water. “That is very precedent setting,” said Morgan O'Brien, NARF’s director of development, adding that it could have “ripple effects.”

Repatriation: NARF is not working on a lot of repatriation cases this year. Okay, it only has one—the return of the remains of Sac and Fox Olympic gold medalist Jim Thorpe—but it has been a headline maker.

RELATED: It’s Time to Bring Home Jim Thorpe

In a nutshell: In the 1950s, Thorpe’s third wife sold his remains to a town in eastern Pennsylvania in exchange for renaming the town the Borough of Jim Thorpe and creating a monument in his honor. As NARF put it, this was nothing short of “the trafficking of human remains.”

Through its Tribal Supreme Court Project, NARF joined the legal team representing Thorpe’s family and tribe in Thorpe v. Borough of Jim Thorpe, filed in 2010 in the Federal District Court in Pennsylvania. The lawsuit seeks, plain and simple, the repatriation of Thorpe’s remains so that he can be buried on Sac and Fox lands, his desired resting place.

RELATED: Thorpe’s Family Appeals Court Ruling; Gains Powerful Supporters

While in 2013 the District Court ruled in favor of Thorpe’s family and tribe, concluding that the town fit into the broad definition of “museum” under NAGPRA, the U.S. Court of Appeals for the Third Circuit reversed the decision last fall, finding that, even though the borough met the definition of “museum,” “Congress could not have intended the kind of patently absurd result that would follow from a court resolving a family dispute by applying NAGPRA to Thorpe’s burial in the Borough under the circumstances here.”

NARF told ICTMN that the family and Sac and Fox are considering taking the case to the Supreme Court. “In the meantime, we are getting together with the tribe and other organizations, trying to do a media appeal on this case,” said Ray Ramirez, a spokesperson for NARF.

Climate Change: In the 21st century a new issue appeared on NARF’s radar—climate change. With a large portion of Indian country feeling the effects of rising temperatures, how could it not take up the challenge?

“In Alaska, we have 184 villages that are probably going to have to be moved for various reasons, rising sea levels and the melting of the permafrost,” Ramirez said. “It is an issue that we are on top of and are working very hard with tribes to mitigate the effects.”

In addition to representing the National Congress of American Indians and other tribal clients on climate change matters, NARF has worked with the National Tribal Environmental Council (NTEC) on comprehensive federal climate change legislation. In collaboration with NCAI, NTEC, and the National Wildlife Federation, NARF developed a set of Tribal Principles and legislative proposals, which have stalled in the Senate, according to NARF.

NARF has taken a seat at the larger international climate change table to advocate for indigenous communities. It has been a regular participant of the annual United Nations Framework Convention on Climate Change Conference of the Parties (COP), starting with COP 15, in Copenhagen, Denmark, in 2009, though it concedes that no real progress has been made to include safeguards for Native people.

Voting Rights: Voting rights continues to be a significant legal area for NARF, and in recent years Alaska has been a hot spot. NARF took part in a successful lawsuit against the State of Alaska, which had violated the Voting Rights Act (VRA) by failing to provide voting materials to voters whose primary language is Gwich’in or Yup’ik in the Dillingham, Wade Hampton, and Yukon-Koyukuk Census Areas, according to NARF. Decided in September 2014, this was a landmark case in all regards, as Section 203 of the VRA requires all states and localities with a certain number of citizens with limited English proficiency to provide translated materials. In 2008, it helped achieve a similar victory for Yup’ik speakers in the Bethel region.

NARF is now focusing its attention on North Dakota, where in Shelby County the Supreme Court had struck down parts of the VRA. “A slew of states have rushed to enact a more restrictive voting measure,” O'Brien said. “There has been a very wide and coordinated response to that, both among foundations that are providing funding and among rights organizations, including NARF, the ACLU, and the Southern Poverty Law Center.”

NARF’s case involves North Dakota’s voter ID law, which, O’Brien said, is the most restrictive in the nation. It requires voters to present an ID that has both a photo and a physical address. Because most Natives who live on reservations have post office boxes, the law essentially denies North Dakota tribal people the right to vote.

Peyote: NARF represents the Native American Church of North America on rights issues related to its sacramental Peyote. It recently conducted research for the church on the decline of peyote and its impact, though it could not disclose the results.

“There is only one tiny place in the United States where Peyote is grown, and that’s in a valley in Texas,” Ramirez said. “What we are doing is looking at all of the causes of the decline and options on how to resolve that.”

Ramirez noted a couple of options: a trade agreement between the United States and Mexico that would allow church members to import Peyote and growing the plant in greenhouses. Either one calls for reaching out to lawmakers on Capitol Hill.

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