California Formally Recognizes and Protects Tribes' Traditional Marine Uses
The North Coast's three-year Marine Life Protection Act (MLPA) Initiative process concluded on June 6, 2012, with the State of California formally recognizing and protecting the Tribes' traditional use of marine resources by establishing a new category for Tribal use in the Fish and Game regulations.  A news release was posted by the California Department of Fish & Game at the following link: http://www.fgc.ca.gov/regulations/2012/632ncisor.pdf.  The new regulation provides formal recognition and protection for the traditional, non-commercial gathering, harvesting and fishing activities of 23 federally recognized North Coast Tribes within marine and estuarine waters along the coastlines of Mendocino, Humboldt and Del Norte Counties.  Under the new regulation, the Tribes will be authorized to continue their cultural uses in a total of ten new State Marine Conservation Areas (SMCAs) and one new State Marine Recreational Management Area (SMRMA), without the new restrictions on take of living marine organisms that will apply to the general public. It marks the first time the State of California has formally recognized and codified Tribal traditional use of the marine resources that are so vital to the Tribes' well being and cultural survival, and affirms the fundamental right of the Indigenous Nations of the State's North Coast to continue their subsistence ways of life in the 3-mile zone of State marine waters.  
 
Attorney Curtis Berkey played a pivotal role in developing a legally enforceable solution accepted by the State, which led to the regulation's inclusion of the Tribal Use element that will apply to the new SMCAs and SMRMA on behalf of the InterTribal Sinkyone Wilderness Council.  

The Kashia Band of Pomo Indians, represented by Scott Williams, successfully confirmed its rights to fish and gather on its ancestral lands along the Sonoma Coast in California. On June 24, 2010, the California Fish and Game Commission agreed to the Tribe’s proposal to amend regulations under the Marine Life Protection Act to authorize ongoing Tribal fishing, gathering, and ceremonial activities.

The Commission had issued a regulation prohibiting all take of all living resources in an area of the coast known as “Danáka” in the Kashia language, and which the Commission called the Stewarts Point Marine Reserve. The Reserve included the homelands of the Kashia people. Kashia activities on that coastal area had not been considered by the Commission when it deliberated and adopted its regulation. The Tribe proposed an emergency amendment, to restore its authority to continue its subsistence and ceremonial practices. A Tribal member testified at the hearing before the Commission: "The Kashia began on the coast. Danáka is the place where we believe the tribe first stepped on the earth. It has tremendous significance for our tribe. We are a very traditional tribe that still speaks our language, follows our culture and respects our elders and follows their direction."

Though Danáka is outside the boundaries of the Kashia Reservation, it is unquestionably within the ancestral lands of Kashia people and in continuous use by Tribal members since the beginning of time. The State’s recognition of the necessity of acknowledging and accommodating Kashia traditional practices bodes well for the Indian tribes of the Northern California Coast where the Marine Life Protection Act regulatory process is still underway.

The Tribe’s ability to retain the firm and protect its ancestral rights was supported by a substantial contribution from the Lannan Foundation, and by additional contributions from The Impact Fund.

The regulation and a video of the hearing are available on the Fish and Game Commission’s web site

Mattaponi Tribe Wins Fight to Stop Dam on Mattaponi River

Berkey Williams LLP has been privileged to assist the Mattaponi Tribe in Virginia in its successful fight to stop the construction of a reservoir dam on the Mattaponi River.  You can read more about this here. For millennia, the Tribe has depended on the River for shad fishing, cultural ceremonies and spiritual meaning.  It is one of the last free-flowing rivers in the East.  A water storage reservoir threatened to destroy the Tribe’s connection to the River and deplete its fishery.  Following several years of federal and state court litigation, on May 1, 2009, the City of Newport News, which had developed the plans to build the reservoir, announced that it was suspending work on the project.  The U.S. Army Corps of Engineers also withdrew the federal permit for the project.  These actions are the culmination of the Tribe’s 15-year legal and political effort to preserve the Mattaponi River from destruction by the reservoir.  Curtis Berkey of ABWW represented the Tribe on the unique federal Indian law issues in the case, which involved efforts to enforce a 1677 Treaty between the Tribe and Great Britain and related issues of environmental law and cultural resource protection.

Yurok Tribe Finalizes Deal to Remove Klamath River Dams.

On September 29, 2009, Scott Williams, as counsel to the Yurok Tribe and part of the Yurok Tribe’s negotiation team, successfully concluded negotiations on an agreement to remove four dams in the Klamath River. The New York Times accurately describes the dam removal agreement as a “landmark” deal, and a critical part of the largest river restoration project in American History. (September 30, 2009). The dams are impassable to fish, and for a century have blocked access of salmon and other anadromous fish to hundreds of miles of historic habitat. In consequence, the Yurok Tribe’s fishery has been in a steady, and deep decline; the fish kill of 2002 on the Yurok Reservation, which caused the loss of over 60,000 Chinook salmon and several hundred ESA-listed coho salmon, made clear to the Tribe that business as usual in the Klamath Basin was no longer tolerable. Scott and the Yurok team of negotiators worked to establish alliances with Basin farmers, other Basin tribes, conservation groups, the United States, Oregon and California; that group developed a Basin Restoration Agreement in 2008; the river restoration package is now complete with the addition of PacifiCorp, the owner of the dams, as a party to the agreement to remove the single greatest barriers to restoration of the river and the Tribal fishery.

PUBLICATIONS:

Firm attorneys Curtis Berkey and Alexendra Page contributed several chapters to a new book just published on the need for fundamental reform of federal Indian law. The book is entitled Native Land Law: General Principles of Law Relating to Native Lands and Natural Resources (2012 Lawyers Edition). It is published by West. The book proposes a fair and workable set of principles that will protect Indian land, governments and communities.

In February 2010, David House co-authored a cover article on California Lawyer magazine relating to sovereign immunity and its application to tribal employees. The full article can be found here.

David House co-authored a cover article in The Montana Lawyer (November, 2009) relating to tribal tax immunities and the Ninth Circuit’s decision in Barona Band of Mission Indians v. Yee, a case upholding state sales taxation in the context of a tribe’s construction project. The full article can be found here.

In its May, 2009, cover story, California Lawyer Magazine analyzes in some depth the water crisis of the Klamath Basin ("A River Runs Through It -- Old adversaries agree to remove dams in the Klamath River basin hoping to save farms, fish, and tribal culture"). The article shines a spotlight on the role of the Yurok Tribe, the firm's client, leading the negotiations. Scott Williams, a partner, is lead counsel to the Tribe in these talks. If successful, as we expect it will be, these talks will result in the largest dam removal and river restoration project in history. The full article can be found here.

Partner Scott Williams and Associate David House co-authored an expert commentary entitled “The D.C. Circuit’s decision to apply the National Labor Relations Act to Indian tribal enterprise: San Manuel Indian Bingo and Casino v. National Labor Relations Board.” The article analyzes and discusses the San Manuel decision, and it offers practical tips relating to case law concerning the potential application of the National Labor Relations Act to Indian tribal enterprises. This article is published on LexisNexis© and is available on that website as an Expert Commentary.

Partner Curtis Berkey and Phillip P. Frickey, the Alexander F. and May T. Morrison professor of law at the UC Berkeley School of Law, co-authored an article entitled “Resolve the Indian Trust Litigation” which was published in the Opinion/Editorials section of the San Francisco Chronicle on February 17, 2009. The article focuses on the problems with the ongoing litigation involving the collection, holding and disbursement of federal funds to Native Americans by the federal government and possible resolutions. The full article can be found here.

PRESENTATIONS:

Managing Partner Curtis Berkey addressed the Tribal Water Rights Summit in Sacramento on November 4, 2009. The Summit was part of the planning process for the 2009 Update for the California Water Plan. Mr. Berkey prepared a paper on the role of Indian tribes in water planning and policy formulation, which may be accessed here. He also made two presentations at the Summit, the first an overview of federal Indian water rights law, and the second a brief summary of his briefing paper.

LEGISLATIVE/CASE UPDATES:

Carcieri v. Salazar, 129 S. Ct. 1058 (2009). Supreme Court restricts Authority of the Bureau of Indian Affairs to Take Land Into Trust Under the Indian Reorganization Act of 1934. Click here to an ABWW Update discussing the decision.

Aitkin County, Minnesota v. Acting Midwest Regional Director, Bureau of Indian Affairs, IBIA 06-39-A (June 12, 2008). In an Interior Board of Indian Appeals decision extending the fee-to-trust “on reservation” review criteria to a trust application for a tract contiguous to an existing tract of land – but not contiguous to a proclaimed treaty reservation. Click here to an ABWW Update discussing this decision.