Previous post on this litigation here.
On Wednesday, February 24, 2021, in an order from Klamath County Circuit Court Judge Cameron F. Wogan, the Oregon court again affirmed the Klamath Tribes’ water and treaty rights. Wednesday’s order rejected attacks on the Tribes’ water rights determined by the Oregon Water Resources Department (OWRD) during the administrative phase of the Klamath Basin Adjudication (KBA), affirmed the senior priority date of the Klamath Tribes’ water rights in the Klamath Basin, and upheld the need to maintain a healthy and productive habitat to meet the Tribes’ treaty right to fish, hunt, trap, and gather.
Klamath Tribes Chairman Don Gentry responded to the order, “We are pleased that Judge Wogan upheld the rulings from the administrative phase of the KBA. He reaffirmed that the 1864 treaty entered into between the Klamath Tribes and the United States reserved to the Tribes sufficient water to keep our fisheries and other aquatic resources healthy so that we can protect our natural resources and cultural traditions.”
NARF Staff Attorney Sue Noe explained, “Judge Wogan correctly affirmed quantification of the Tribal water rights based on the habitat needs of the fish, wildlife, and plants. Although he ruled that opponents of the Tribal rights will have another chance to try to reduce the amounts by showing the Tribes don’t need all the water awarded by OWRD to meet their livelihood needs, Judge Wogan made clear in no uncertain terms that the amounts cannot be below what is necessary to provide healthy and productive habitat.”
Importantly, like all other courts that have considered the issue, Judge Wogan ruled that the Klamath Tribes’ water rights extend to Upper Klamath Lake. Upper Klamath Lake forms part of the border of the former Reservation and provides critical habitat for the endangered c’waam and koptu (Lost River and shortnose sucker fish), which are sacred fish species traditionally harvested by the Tribes.
Represented by NARF, the Klamath Tribes successfully achieved recognition of their treaty-reserved water rights in federal court litigation in the 1970s and 1980s in United States v. Adair, but the federal courts left quantification of the water rights to the state adjudication in the KBA. After the successful conclusion of the KBA’s 38-year administrative phase, the Tribes were able to begin enforcing their water rights for the first time in 2013. The administrative determinations are presently on review in the Klamath County Circuit Court and Judge Wogan’s ruling is the latest to come out of that process.
The National Native American Bar Association (NNABA) Foundation is continuing to accept applications for the 2021 Bar Review Scholarship. This scholarship is intended to alleviate some of the financial strains to ensure that future Native attorneys can successfully devote their mind and spirit to the final hurdle of becoming legal warriors. Applications are due March 1, 2021 to firstname.lastname@example.org. Please visit www.NativeAmericanBar.org for the full application criteria. Awardees will be honored at the NNABA Annual Meeting.
Additionally, the NNABA Foundation’s 2021 scholarship awards will be given in memory of some of our legal warriors who journeyed on this past year. The hope is that our awardees will carry the spirit and fight of their memorial award as they prepare for the bar exam and honor our legal warriors’ memories as they enter the legal profession.
If you would like to nominate a legal warrior to be honored in this way, please submit their name, bio, and photo (if appropriate) to email@example.com for consideration by the Scholarship Committee. If you would like to donate to this year’s scholarship awards, you can make donations to the NNABA Foundation at https://www.nativeamericanbar.org/the-national-native-american-bar-association-foundation/.
The 51st Annual Native American Critical Issues Conference
More information at miec.org/conference
March 11-13, 2021, 9-12:30pm ET on Zoom
*there are a limited number of student registration scholarships available. Contact firstname.lastname@example.org for more information.
Join us for 3 conference tracks, including
- General Track (A), for the general public
- Youth Track (B), for young students
- NASO Track (C), for college-aged students who may be involved in Native American Student Organizations
- 15 Breakout sessions
- 4 Plenary sessions
- 2 Vendor Booth and Information Booth sessions to meet directly with vendors
- 2 Networking Café sessions to connect with other attendees
- Access to Zoom session recordings after the conference
- Cultural Uses of Fire
- Indigenous Foraging, Cooking, and Eating
- Fire Ring in the Mackinac Straits
- Ishkode: The Language of Fire
- Fired Up: Activism in Indian Country, Past and Present
- Tri-Lateral Indian Education Panel
- Missing and Murdered Indigenous Women Panel
- Rematriation and Pedagogical Reform in K-12 Systems
- Treaty Rights and Water Habitat
- The Impact of COVID-19 on Indian Country Keynote
- Native American Student Organizations Meet and Greet: Our College Experience
- Graduate School 101
- Native Scholar Network Summit Keynote
- Decolonizing NASO
- and more!
Click here to register for $150 on Eventbrite and receive access to the password protected Participant Portal. The Participant Portal at miec.org contains the Zoom links needed to gain access to the conference. Registered attendees will receive the Participant Portal password by email one week prior to the event.
Seeking Artists and Informational Vendors
Vendors: Would you like to be listed as a vendor on the conference website and meet one-on-one with attendees during 2 Vendor Sessions on March 12? Contact Dr. Martin Reinhardt to request a vendor form at email@example.com by Friday, March 5. Vendor fees are $50.
More information and registration at miec.org/conference
Here is “Muskrat Textualism,” available on SSRN. The abstract:
The Supreme Court’s decision McGirt v. Oklahoma confirming the boundaries of the Creek Reservation in Oklahoma was a truly rare case where the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been terminated, and acted accordingly. But only Congress can terminate an Indian reservation, and it simply had never done so in the case of the Creek Reservation. Both the majority and dissenting opinions attempted to claim the mantle of textualism, but their respective analyses led to polar opposite outcomes.
Until McGirt, a “faint-hearted” form of textualism has dominated the Court’s federal Indian law jurisprudence. This methodology enables the Court to seek outcomes consistent with the Justices’ views on how Indian law “ought to be.” This Article labels this thinking Canary textualism, named after the dominant metaphor used for decades to describe Indian law, the miner’s canary. Like the miner’s canary, a caged bird used by miners to detect and warn of toxic gasses in a mine, Canary textualists treat Indians and tribes as powerless and passive subjects of federal law and policy dictated by Congress and the Supreme Court. Canary textualism relies on confusion in the doctrinal landscape and fear of tribal powers to justify departures from settled law. The 1978 decision, Oliphant v. Suquamish Indian Tribe, in which the Supreme Court stripped Indian tribes of critical law enforcement powers by judicial fiat, is the prototypical Canary textualism case. Oliphant’s hallmark is the Court’s legal acknowledgment that Indian tribes are dependent on the federal government merged with centuries of precedents that presumed the racial inferiority of Indian people. This allowed the Court to quietly assume that tribal governments therefore are inferior as well.
Scholars long have decried the Court’s Canary textualism but have rarely offered a better theory. This Article attempts to fill that gap, and to provide a higher level of certainty in federal Indian law textualist doctrine that will help to preclude Canary textualist activism. A far better metaphor than of the miner’s canary would be that of the muskrat, the hero of the Anishinaabe origin story of the great flood, a lowly, humble animal that nevertheless took courageous and thoughtful action to save creation. Indians and tribes are no longer caged birds. Tribal governments are active participants in reservation governance. They are innovative and forward-thinking. Luckily, the McGirt decision exemplifies a new form of textualism, Muskrat textualism, that acknowledges and respects tribal actions and advancement. Muskrat textualists accept tribal governments as full partners in the American polity. Muskrat textualists accept the relevant interpretative rules that govern federal Indian law where texts are ambiguous and where texts are absent or not controlling. As a result, Muskrat textualism is also a superior form of textualism more generally, illustrating the proper role of the judiciary in constitutional law and statutory interpretation, and ensuring more predictable and just Indian law adjudication.
This Article argues that McGirt – and its embrace of Muskrat textualism – is a sea change in federal Indian law, and rightfully so. If that is the case, then cases like Oliphant should be reconsidered and tossed into the dustbin of history.
Here are images of some of the historical gossip I uncovered for this paper:
Call for Nominations for the 2021 Lawrence R. Baca Lifetime Achievement Award
Please consider nominating someone for the 2021 Lawrence R. Baca Lifetime Achievement Award for Excellence in Federal Indian Law!
Past recipients include Lawrence R. Baca, Professor Phil Frickey, John Echohawk, Professor David Getches, Alan Taradash, Professor Carole E. Goldberg, Tom Fredericks, Walter Echo-Hawk, Arlinda Locklear, Professor Charles Wilkinson, Professor Bill Rice, Professor Rob Williams, Eric Eberhard and Heather Kendall Miller, Frank Ducheneaux, Reid Peyton Chambers, Harry Sachse, and Hon. Abby Abinanti.
The deadlinefor nominations is Friday, February 12, 2021.
1. Nominee must have worked in the field of Indian law for at least twenty years as a practitioner, judge, legislator, leader, scholar or educator;
2. Be of good standing and held in high esteem in his or her professional arena;
3. And have made significant contributions to the field of Indian law through litigation, development of legislation, scholarship, or the development of Indian law students or through tribal leadership.
Please view the award page for nomination and submission details.