Facebook Twitter Email
NOVEMBER 30, 2000

As the nation prepares itself for a historic Supreme Court hearing on the Presidency, a high profile case is raising questions about how far the government should go to protect tribal interests.

In 1999, the Ninth Circuit Court of Appeals ruled that the Department of Interior and the Bureau of Indian Affairs must comply with a Freedom of Information Act (FOIA) request made by a group of Oregon citizens. Indian law advocates say the trust relationship between tribes and the government is at risk unless the Supreme Court overturns this decision.

The documents a group of Oregon water users have requested address the government's fulfillment of its trust obligations to several tribes in Oregon and northern California, as well as a water rights lawsuit it filed on behalf of them in the state of Oregon. As such, groups like the Native American Rights Fund of Boulder, Colorado, say they should be kept confidential between tribes and the United States.

A federal court supported this notion, ruling that the seven documents were exempt from a FOIA request. The court said they qualified as "inter-agency or intra-agency documents."

But the Ninth Circuit disagreed and said that while the Interior must act in the interests of tribes when protecting trust resources such as water, it can't give them greater rights than they would normally have.

The court even cited President Bill Clinton's 1994 tribal consultation memorandum as support for its position. That memorandum directed agency officials to consult with tribes over decisions that affect them, but the court pointed out that the process must be "open and candid" so that other interested parties can be involved.

Clinton later issued a tribal consultation executive order in 1998 and renewed it earlier this month, calling on government officials to give tribes "the maximum administrative discretion possible." The order has been hailed as evidence of the administration's commitment to tribes and tribal sovereignty.

In preparation for the Supreme Court hearing, scheduled for January 2001, several tribes and tribal organizations have shown their support of the administration's appeal of the case. The National Congress of American Indians, the United South and Eastern Tribes, and the Campo Band of Mission Indians of California are a few who have filed support briefs.

Get the Case:
Klamath Water v. USDOI (Ninth Circuit No. 97-36208. August 1999)

Related Stories:
Clinton renews tribal commitment (Tribal Law 11/7)
Photo: Executive Order Ceremony (Tribal Law 11/7)

Relevant Links:
The Supreme Court - www.supremecourtus.gov
The Native American Rights Fund - www.narf.org
Klamath Water Users Association - www.orgsites.com/or/klamathwaterusers
Freedom of Information Act, Department of Justice - www.usdoj.gov/04foia/index.html