A. The Scope of the Commission's Mandate
A review of the tribal status and authority of Alaska Native communities comes within the mandate of the Alaska Natives Commission for two reasons. First, Alaska Native eligibility for federal Indian programs is dependent upon the tribal status of Alaska Native communities. Second, the tribal status and authority of Alaska Native communities broadly influences the social status of Alaska Natives within their communities and in relations with the federal and state governments and their residents.
Congress charged the Alaska Natives Commission with the task of conducting a comprehensive study of the social and economic status of Alaska Natives and the effectiveness of those policies and programs of the United States, and of the State of Alaska, that affect Alaska Natives, and to make recommendations based on their findings.
Congressional authority to request and finance a study for a distinct social group such as Alaska Natives arises from a long political and legal relationship between Native American people and the government of the United States. The term "tribe" describes indigenous groups of Native American people:
Originally, the definitional question (regarding the definition of "tribe") arose in connection with treaty relations, as it was necessary to determine which groups were political entities for the purpose of negotiating treaties with them. Later, federal legislation to regulate Indian affairs, to allow claims for depredations by Indians, to permit claims by Indians against the federal government, and to protect Indian property and other rights, required determinations of which groups fell within the meaning of the particular statute. More recently, it has been necessary to identify recipients of federal programs for support, protection, and assistance.
Felix S. Cohen's Handbook of Federal Indian Law 3 (1982 ed.)("Cohen")
Alaska Native tribes and tribal organizations not only legitimize the special treatment Alaska Natives receive from the United States, but also help define the social and political status of Alaska Native communities throughout Alaska. Despite the significance of Alaska Native tribes, over time they have been the object of neglectful policies, controversy and conflict. This paper reviews the issues related to the status and authority of tribal governments in Alaska as they impact the social status of Alaska Natives and the effectiveness of State and federal policies and programs which are intended to benefit Alaska Natives and their communities.
B. Statement of the Contemporary Issue
The United States government made the legal status of Alaska Native tribes and their members an issue of significance from the time it first acquired Russian rights in Alaska. Article III of The Treaty Of Cession called for the application of federal Indian laws to the
"uncivilized tribes in Alaska":
The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory, they with exception of uncivilized native tribes, shall be admitted to the enjoyment of all rights, advantages and immunities of citizens of the United States and shall be maintained and protected in the free enjoyment of their liberty, property and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may from time to time, adopt in regard to aboriginal tribes in that country.
Treaty of March 30, 1867, 15 Stat. 539 (Emphasis added).
For the first hundred years of American occupation, legal battles over Indian affairs in Alaska revolved around the scope of the federal government's power and obligation to protect Indians and Indian tribal lands and rights.1 More recently, the focus of the political discourse and litigation has expanded to include the scope of tribal authority.2 The debate over the legal status and authority of Alaska Native village tribes, and the appropriate role and relative rights and obligations of the federal and state governments has been described as the "tribal sovereignty issue" or "tribal sovereignty debate."
Historically, American Indian tribes could claim the full attributes of an international sovereign exercising:
The supreme, absolute, and uncontrollable power ...to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like...
Definition of "sovereignty" from Black's Law Dictionary at 1568 (1968).
That time has passed. Today, Indian tribes still enjoy a sovereign status, but more akin to
the sovereignty of the states. Indian tribes and states, like Alaska, enact and enforce their own laws and tax, but they no longer make war or manage foreign affairs.
Alaska Native village tribes and confederated groups of tribal villages all base their claims to sovereignty on legal tenets commonly applied to Indian tribes in the United States:
The present right of tribes to govern their members and territories flows from a preexisting sovereignty limited, but not abolished, by their inclusion within the territorial bounds of the United States...[T]hose powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather "inherent powers of a limited sovereignty which has never been extinguished."
Cohen at 231 citing United States v. Wheeler, 435 U.S. 313, 322-23 (1978).
Generally speaking, "Indian tribes" are "bodie[s] of Indians3 of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory..."4 which have been recognized by the federal government as enjoying a government to government relationship with the United States. Congress now authorizes the formal acknowledgment of tribal status by regulation, where once accomplished by treaty with Indian tribes:
The purpose of this part is to establish a departmental procedure and policy for acknowledging that certain American Indian tribes exist. Such Acknowledgment of tribal existence by the Department is a prerequisite to the protection, services, and benefits from the Federal Government available to Indian tribes. Such acknowledgment shall also mean that the tribe is entitled to the immunities and privileges available to other federally acknowledged Indian tribes as well as the responsibilities and obligations of such tribes. Acknowledgment shall subject the Indian tribe to the same authority of Congress and the United States to which other federally acknowledged tribes are subjected.
25 C.F.R. § 83.2 Purpose (Procedures for Establishing that an American Indian Group Exists
as an Indian Tribe).5
Congress also recognizes tribes for various purposes through legislation. Cohen at 3-4. Courts normally must defer to congressional and executive branch findings of tribal status.6 Although the tribal status of some Native communities may remain at issue in the Congress and the federal courts7, sovereignty issues and conflicts have already shifted toward the scope of federal authority and obligations to protect Native rights and interests8 and to the extent of Indian Country and tribal authority in Alaska.9 More typical jurisdictional conflicts between states and tribes arising in Indian country can be expected.10
This paper addresses the issue of Alaska tribal sovereignty in three parts: A general overview of tribal self-government and federal Indian law and policy and its historical application in Alaska; contemporary Federal, Native, and State views towards Alaska Native tribal status and authority; and, finally, draft recommendations with supporting annotations from the Commission's hearing records. Original research for this paper was limited to updating the substantial, scholarly body of works which review and analyze various aspects of federal Indian policy and tribal sovereignty in Alaska.11
II. Tribal Sovereignty and Federal Indian Law and Policy
A. Federal Indian Law and Policy
Since the arrival of European explorers to the American continents, sovereign governments representing the descendants of these immigrants and the indigenous residents of America have struggled to maintain control over what they considered their land and people. The Europeans called the indigenous residents Indians and their governments tribes. United States "Indian policy" carried on where the Spanish12, the Dutch, and the English left off13:
Originally, Indians governed themselves free of outside interference or control. As the New World was settled something had to be done about the continent's aboriginal inhabitants. Very early it was apparent that the tribes could have been contained or decimated by force. But the costs in lives, material, time and conscience were far too great. Indians were in the way; their lands were needed for settlement and the frontier was too vast to defend against attacks by hostile Indians. Thus, the United States' policy of negotiating land cessions in treaties and agreements, with certain promises and rights in return, was born of necessity and convenience. One of the most essential ingredients of the process was recognition of tribes as sovereign entities. Treaty making with them indicated the tribes' legal capacity. The process of obtaining Indian lands and containing the tribes had to be done by agreement in order to be consistent with the legal and moral precepts of the new government.
D. Getches 8t C. Wilkinson, Federal Indian Law, Cases and Materials xxiv (2d ed., 1986).
The federal relationship with Indian tribes, founded upon the need to acquire land and maintain peaceful relations, continues to develop today in more domestic forms. The relationship remains grounded in the mutual recognition of federal and tribal governmental status. Federal laws which describe this relationship are called federal Indian laws. Federal
Status of the Alaska Natives; A Report to the Alaska Statehood Commission (1982); D. Case, Alaska Natives and American Laws (1984); T. Bergen, Village Journey: The Report of the Alaska Native Review Commission (1985); D. Getches and C. Wilkinson, Federal Indian Law: Cases and Materials, 774-820 (1986)("Section A. Alaska Natives: Looking Forward to the Past"J; State of Alaska, Report of the Governor's Task Force on Federal=State-Tribal Relations--Submitted to Governor Bill Sheffield (1986); Toward Understanding: A Positive View of Federal -State-Tribal Relations (1986)(An adaptation of the Governor's Task Force Report on Federal-State-Tribal Relations sponsored by the Rural Alaska Community Action Program, Inc.); R. Price, The Great Father in Alaska: The Case of the Tlingit and Haida Salmon Fishery (1990); E. Smith & M. Kancewick, The Tribal Status of Alaska Natives, 61 U. Colo. L. Rev. 455 (1990); Institute of Social and Economic Research, The Dual Political Status of Alaska Natives Under U.S. Policy (1992); Alaska Judicial Council, Resolving Disputes Locally: Alternatives for Rural Alaska (1992); Alaska Judicial Council, Resolving Disputes Locally: A Statewide Report and Directory (1993); S. Di Pietro, Forward to Native Law Selections: Recent Developments in Federal Indian Law as Applied to Native Alaskans, 10 Alaska Law Review 333 (1993); S. Di Pietro, Tribal Court jurisdiction and Public Law 280: What Role for Tribal Courts in Alaska, 10 Alaska Law Review 335 (1993).
laws, judicial decisions, and executive -branch regulations and practices which determine the course of action taken by the federal government14, with respect to Indian tribes, are collectively referred to as federal Indian policy or Indian affairs.
Federal laws and regulations governing Indian affairs are principally found in the Indian titles of United States Code and the Code of Federal Regulations--including such far ranging matters as the federal acknowledgment of Indian tribes, 25 C.F.R. part 83, to the federal authorization for state officials to enforce sanitation and quarantine regulations on Indian lands, 25 U.S.C. § 231.- Federal Indian laws are also spread throughout the federal statutes and administrative codes. For. example, courts have declared the Alaska Native Claims Settlement Act, Indian legislation despite being located in the public lands title of the federal code at Title 43.15 The collection of federal Indian laws and regulations generally are applied to Alaska Native villages through the definition of "Indian tribes."16
The rich history and pattern of federal Indian law and policy attracts analysis. Federal Indian law touches every aspect of Native individual and community life. Numerous authors have attempted to "reduce the maze of our Indian law to a manageable scheme and take account of its basic principles."17 Among these sources is Felix S. Cohen's Handbook of Federal Indian Law. First published by the Department of the Interior in 1942 under the direction of its author, Felix S. Cohen, Special Assistant to the Attorney General and
later Associate Solicitor of the Department of the Interior, the 1982 edition is a substantial update edited by a Board of Authors and Editors made up of law professors from around the country under contract with the Department of the Interior pursuant to a mandate. from Congress to revise and republish the Cohere Handbook. 25 U.S.C. § 1341 (a)(2). David H. Getches and Charles F. Wilkinson, two members of Cohen's board of authors and editors contributed a course textbook to this collection called Federal Indian Law, Cases and Materials (West Publishing Co., 1986). Finally, David S. Case wrote a treatise on federal Indian law in Alaska called Alaska Natives and American Laws (The University of Alaska Press, 1984, Case). Each work portrays the field of federal Indian law in a slightly different light. Each analysis helps explain the theory and principles of federal Indian law to the lay and professional reader.
1. Cohen's Principles of Indian Law
Cohen's authors and editors noted that his original vision of Indian law as a set of four principles proved out over time and remain largely unaltered to this day:
a) Indian Tribes are political bodies with retained powers of self-government;
b) The United States has broad authority over Indian Affairs;
c) The federal government has a trust obligation to Indians,
i) resulting in the protection of tribal self-government from state incursions,
ii) the protection of Indian property interests,
iii) and the provision of services and programs; and,
d) Indian tribes and individuals are entitled to be free of invidious discrimination under federal and state laws.
Cohen at x.
a. Indian tribes are political bodies with retained powers of self-government. Tribal powers are "inherent powers of a limited sovereign which has never been extinguished." United States v. Wheeler, 435 U.S. 313, 322-23 (1978). Customs, practices and formal codes of behavior which tribes used in the past, typically in place of written laws, constitute the governmental and legal systems which were originally recognized by federal constitutions, legislation, treaties, judicial decisions and administrative practice. Cohere at 230-231. Most tribal legal systems now incorporate written codes, published court decisions and other attributes of contemporary legal systems.
The increasing dependency of tribes on the federal government allowed the United States to limit tribal authority. Tribes now retain all rights and powers of a sovereign except those withdrawn or extinguished "by treaty or statute, or by implication as a necessary result of their dependent status."18
Indian Tribes exercise significant control over their internal affairs and may regulate and
adjudicate the activities of non-members who enter into voluntary agreements with the tribe or tribal members or otherwise threaten the tribe's political integrity or the health, safety and welfare of the tribal community. Montana v. United States, 450 U.S. 544. (1981).
Absent specific limitations, tribal power over their internal affairs remains "unfettered by assertions of federal or state authority ." Cohen at 236. Within "Indian Country" most state laws are of no effect unless Congress authorizes them. In many situations, as in the case of a federally declared Indian reservation or a comprehensive scheme of federal regulation; federal law preempts state law.19 Otherwise, state legislation applies unless it infringes upon the right of reservation Indians to make their own rules and be governed by them 20 Within their tribal territory,21 and even outside their territory, with respect to their members and certain subject matter, tribes employ the following powers:
1 / the power to determine their own form of governments;22
2) the power to determine membership;23
3 ) the power to legislate;24
4) the power to administer justice;25
5) the power to exclude persons from tribal property;26 and,
6) the power to regulate and adjudicate the civil behavior of certain
See generally, Cohen at 246-257.
b. The United States has broad authority over Indian affairs. Various sections of the
United States Constitution together provide authority for federal power over Indian
affairs.27 The sections most frequently cited include the Indian Commerce clause, the
treaty clause28, and the Supremacy claus29. The Commerce Clause offers the only
affirmative authority that actually refers to "Indian tribes." Congress may "regulate
Commerce with foreign Nations, and among the several States, and with the Indian
Tribes.30 Perhaps the purest use of this authority is found in the series of Trade and
Intercourse Acts intended principally to prevent unlawful purchases of Indian land31
Since the discontinuation of Indian treaty making in 1871 32, it has been said that the
Indian Commerce Clause provides the main authority for Congressional power over Indian
affairs. However, as Cohen notes, "it is somewhat artificial to analyze the constitutional
provisions separately. For most purposes it is sufficient to conclude that there is a single
power over Indian affairs, "an amalgam of the several specific constitutional provisions."
Cohen at 211.
Federal power over Indian affairs and the existence and recognition of the Indian tribes' political status are interdependent concepts:
"As long as these Indians remain a distinct people, with an existing tribal organization, recognized by the political department of government, Congress has the power to say with whom, and on what terms, they shall deal."
United States v. 43 Gallons of Whiskey, 93 U.S. 188, 195 (1876).
Courts have described Congress' power over Indian affairs as plenary33 in part due to the lack of any meaningful possibility of judicial review of congressional acts in this field. However minimal the standard, there are limits beyond which Congress cannot bootstrap Indian affairs authority:
Of course, it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and
not by the courts..
United States v. Sandoval. 231 U.S. 28, 46 (1913).
So long as a Native group is made up of Indians (persons whose ancestors lived in this country prior to European discovery), and is distinct from other tribes, a determination of tribal status will be upheld. Indian legislation will withstand challenge if it is "rationally connected to fulfillment of Congress' obligation to Indians."34 Stricter constitutional standards apply to Congress' management of Indian lands.35
Federal power or jurisdiction over Indian affairs also includes a territorial component. Historically, federal power over Indian affairs was limited to those geographic areas, outside of states, where tribal communities were located.. These areas were known as Indian country. The status of these lands served two purposes. Strict boundaries identified where federal Indian affairs jurisdiction started and the laws of the state ended. Secondly, Indian country boundaries identified the limits of tribal authority. Outside Indian country, state laws apply unless federal Indian laws tied to some particular subject matter preempts the state law. For example, the Indian Child Welfare Act36 applies federal standards to the adoptive and foster care placement of Indian children in state proceedings wherever they occur. Today, Indian country includes Indian reservations, trust allotments, and dependent Indian communities as defined in the Indian Country Statute and case law.37
c. The federal government has a trust obligation to Indians. This obligation includes the protection of tribal self-government from state incursions, the protection of Indian property interests, and the provision of services and programs.
The federal government first protected Indian governments, lands, and provided services and special programs to their members in order to gain their loyalty, to obtain cessions of land, and to maintain control and peace during the settlement of the frontier. Cohen at 58-78. In exchange for land and peace, early treaties promised tribes goods and the protection of the United States. The theory of a federal trust responsibility to Indian tribes arose from the general promises in treaties to protect certain tribal lands and the right of the tribes to manage their own affairs.38 Similar terms were included in other treaties and later, statutes which resulted in the acquisition of the public lands in the United States.
The historical guardian/ward relationship has been applied to find the highest fiduciary standards applied to trust duties owed to Indians.39 The more contemporary view looks to specific statutes to define the scope of the trust or duty owed.40 In this sense, Congress' power over Indian affairs is not "absolute" as much as it is "complete" -standards of care can be enforced in a court of law. On the other hand, Congress can "exercise broad police power, rather than only the powers of a limited government with specifically enumerated powers." Cohen at 220.
Although the federal duty to protect Indian trust land in the United States usually can still be traced to historical treaties or statutory land cessions, the same is not always true with respect to Indian services and programs. While Indian education and health services have been provided to Indian tribes since the earliest years of the Nation because of their status, more recently, Indian tribes have benefitted from generic social welfare programs due to their rural location, relative level of community poverty, or minority status.41
d. Indian tribes and individuals are entitled to be free of invidious discrimination under federal and state laws. During Cohen's era Indian civil rights were still much in doubt coming only years after all Indians gained citizenship42 and nearly 20 years before the civil rights laws of the 1960's. These matters are well settled now. In addition, federal policy and case law now confirm that special treatment in federal statutes or hiring and contracting preferences in favor of members of Indian tribes do not constitute a prohibited racial classification in violation of constitutional notions of equal protection or various civil rights laws. Morton v. Mancari, 417 U.S. 535 (1974). In Morton v. Mancari, the Supreme Court confirmed that the distinction between members of Indian tribes and others is political and not racial. A hiring preference in the Indian Health Service of the Bureau of Indian Affairs, "...as applied, is granted to Indians not as a discreet racial group, but, rather, as members of quasi-sovereign tribal entities..." .
2. Getches, Wilkinson & Case on Federal Indian Law
Authors of case law texts, treatises and court opinions concerning federal Indian law find it difficult to avoid the influence of Cohen's Handbook of Federal Indian Law. However, contemporary authors contribute perspectives colored by time and place. David Getches and Charles Wilkinson suggest that federal Indian law focuses on three concerns: Tribal sovereignty and Indian property rights, federal power and obligations, and States' rights. Getches and Wilkinson, Federal Indian Law: Cases and Materials xxiv (1986). Tribal sovereignty and federal power are no less valid after Cohen's publications, but tribal jurisdictional and property rights have increasingly come in conflict with States' rights and interests. As Justice Stevens wrote in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979)(estabhshing that the right of Indians in the pacific northwest to fish at their "usual and accustomed grounds and stations ...in common with all citizens of the Territory" meant they could take up to fifty percent of the run of salmon):
The purport of our cases is clear. Non-treaty fishermen may not rely on property law concepts, devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair share of the relevant runs
of anadromous fish in the case area. Nor may treaty fishermen rely on their.
exclusive right of access to the reservations to destroy the rights of other
"citizens of the territory." Both sides have a right, secured by treaty, to take
a fair share of the available fish.
Id.. The Supreme Court strictly construed the relative rights set out in the Washington treaty fishing rights cases pursuant to the federal treaty language. However, the Court has increasingly, balanced the interests of Indian tribes and states (and their subdivisions and citizens) in the absence of a preemptive federal statute. For example, in Brendale v. Confederated Tribes and Bands of the Yakima Nation. 492 U.S. 408 (1989), the Court found that a county planning code took precedence over the tribe's in the open part of a former reserve where the tribe had lost the power to exclude non-members. According to the court, "because the open area no longer maintains the character of a unique tribal asset and because the Tribe accordingly lacks a substantial interest in governing land use, the [tribal] power to zone has become outmoded."
David Case examines the federal relationship with Alaska Natives in his treatise on federal Indian law in Alaska. Case notes that federal statutes and policy define the government's relationship with Alaska Natives due to the absence of treaties:
[S]tatutory [and regulatory] descriptions afford an opportunity for both the federal government and Alaska Natives to define their respective obligations and expectancies, thereby ensuring more likely future realization of both...
These statutes manifest all four aspects of the federal relationship to Alaska Natives:
4) promoting Native government.
Case at 22.
In sum, federal Indian law and policy defines the federal relationship with American Indian tribes. As Case observes, federal Indian laws define the "respective obligations and
expectancies [of tribes and the federal government], thereby ensuring more likely future realization of both." Case at 22. While some observers believe that the relative certainty of these federal laws, which temper otherwise rapid changes in the society, can be assuring, Cohen at 2, some Natives consider legal attempts to define the social and political boundaries of a society dangerous:
I am against putting down our definitions of sovereignty. Sovereignty isn't a word that is there for other people to define. Sovereignty, to us, is a word that is lived. Sovereignty is the ancestral spirits that each and every one of us carry within our hearts and within our minds ...and that power ...that driving force ...[A]nother [politician]...can take that document; and they can twist it to suit their own fancy and put their own interpretations in there. So I'm leery about doing that.
Alaska Natives Commission Hearing at Klawock, Alaska, October 24, 1992, (Testimony of Gilbert Charles Fred).
Mr. Gilbert Fred could well be a scholar of federal Indian law. The history of federal Indian law and policy reveals many changes in the policy tide which give credence to Mr. Fred's skepticism. A brief introduction to the dynamics of federal Indian law and policy follows in the next section.
B. The Dynamics of Federal Indian Policy
Federal Indian law memorializes the legal relationship between Indian tribes and the federal government.43 The law lags behind, but eventually follows the movements of society. In order to understand federal Indian law, people must study the history of the contacts between the two societies. As Rennard Strickland, the chief editor of the 1982 edition of Cohen, observed:
In historically reconstructing the origins, purposes, goals, values and motivations of Indian policy, lawyers too often attempt to find a rational basis for policy decisions ...The consequence of this erratic legal rationality has been an absence of a single, unified, established American Indian policy ...Consistently, the rules have changed, often for reasons that have little to do with Indian concerns or needs. Boundaries are shifted when gold is discovered; promises of Indian statehood are abandoned when it is clear that the Indian territory has rich agricultural potential; land is withdrawn when railroads wish to move across the plains.
R. Strickland, The Absurd Ballet of American Indian Policy or American Indian Struggling with Ape in Tropical Landscape: An Afterword, 31 Maine L.Rev. 213, 220-221 (1979).
The larger trends in the history of Federal Indian policy reveal swings between the federal government's attempts to separate Indian communities from the larger society and later forcing the tribes to assimilate into the dominant culture. Early Indian Country statutes
kept Indian lands separate from state lands. The following period of Indian reservations located within states yielded to the allotment of those reservations into small parcels held by individual Indians. The federal government finally stopped allotting Indian lands during the Indian reorganization period of the early 1930's when it attempted to use the tribe as a vehicle of social progress and economic development. This period of tribal rebirth was quickly followed by a wholesale period of federal termination of its relationship with Tribes. Since the early 1960's, the general trend of Federal Indian policy has been to strengthen tribal government as a means to accomplishing Indian individual and collective "self-determination." Federal Indian law kept pace with each of these policy shifts and provides a sort of historical record.44
C. Historical Application of Federal Indian Law in Alaska
As agreed in the Treaty of Cession with Russia, the United States intended to subject Alaska Native tribes to the same laws it applied to other Indian tribes in the country. David Case points out that only "uncivilized tribes" were supposed to be treated in this manner, perhaps in reference to the federal practice of bestowing citizenship on Indians who were either not members of an Indian tribe or terminated their tribal relations.45 The distinction never significantly influenced federal policy in Alaska which was equally labored and unpredictable regardless of the level of any particular Native's civilization.46 Nonetheless, early managers of federal Indian policy in Alaska, which centered on the delivery of education services to Alaska Natives, promoted the distinction between tribal status and citizenship:
The Government has never treated them as Indians, and it would be a national calamity at this late date to subject them to the restrictions and disabilities of our Indian system.
Among those best known their highest ambition is to build American homes, possess American furniture, dress in American clothes, adopt the American style of living, and be American citizens.
R. Price, The Great White Father in Alaska: The Case of the Tlingit and Haida Salmon Fishery 87 /1990)/Quoting Sheldon Jackson, the first General Agent of Education in Alaska from his Report on Education in Alaska 34 (1886). Late educators carried on this philosophy:
...The abandonment of tribe and clan, together with superstition and cumbersome and barbarous traditional laws or customs that cling to them, must be accomplished, and the native must learn to recognize the laws of
Government and the moral law if he ever expects to enter into business or industrial competition. In order that these may be relinquished the principles of the Christian religion must be inculcated in him.
Id. at 88 (quoting W.G. Beanie, Superintendent of the Sitka Training School and advisor to the founders of the Alaska Native Brotherhood--the ANB47, from a 1910 volume of the Home Mission Monthly, a Presbyterian Church publication).
No one philosophy melded Federal Indian policy in Alaska in the early years. The Secretary of the Interior Seward declared Alaska to be Indian Country and it was treated as such by the military which asserted its authority over Indians on this basis. "Governmental Jurisdiction of Alaska Native Villages Over Land and Nonmembers," Opinion No. M-36975 at 17 (Jan. 11, 1993)("Solicitor's Opinion"). A later series of cases penned by judge Deady from the federal district court in Oregon rejected this view of law holding without analysis that Congress only intended to extend some, but not all, federal laws to Alaska. United States v. Seveloff, 27 F. Cas. 1021, 1024 (1872/. Some commentaries have stated that Seveloff and Deady's subsequent decisions were motivated by his not uncommon view that anything, including adverse interpretations of law, that interfered with non-Native access to and development of the frontier was not the law. 48
The end of the treaty making period with Indians came just four years after the United States acquired Alaska preventing any negotiated clarification of the relationship between Alaska Natives and the United States. Congressional legislation did little to settle matters. Laws of the time reflect the struggle to facilitate development in Alaska while maintaining some protection for the possessor rights of Alaska Natives. The first Organic Act that extended federal mining laws to Alaska declared:
That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.
The Organic Act of May 17, 1884, sec. 8, 23 Stat. 24. In the following seventy years, courts would find alternatively that the Organic Act permitted Natives to convey title to their lands49, prevented Natives from conveying lands50 and recognized compensable
individual Indian titles to lands51, before finally deciding that the Act merely maintained the status quo--that Alaska Natives held unrecognized and uncompensable rights to use and occupy lands.52
In the meanwhile, the Congress continued to include Alaska Natives in Indian legislation or crafted special statutes for their benefit, including legislation providing authority for Alaska Native allotments and town sites, Indian education, reservations of federal lands, limited protections for Native subsistence, and repeated appropriations to carry out these duties. See generally, Case, ch. 1. Modern federal courts found Indian country in Alaska53, declared that Alaska Natives held valid aboriginal land claims54 and prohibited State land selections under the Statehood Act until such time as all land in Native possession could be identified and excluded from state land selections55 In 1923, the United States Solicitor had found that relationship between Alaska Natives and the United States was "very similar and in many respects, identical with those that have long existed between the Government and Aboriginal people residing within the territory." 49 L.D. 592 (1923 ), aff'd in 53 LD. 593, 604-605 (1932).
Alaska Natives suffered through a sort of terminationist period of Federal Indian Policy at the same time as tribes in the states.56 During the late 1940's and through the 1950's federal court decisions effectively eliminated federal authority to preserve exclusive fisheries for Indians residing on reservations in Alaska. Grimes Packing Co. v. Hypes, 337 U.S. 86 (1949J(Native fishery could only be protected in a trespass action agreed to by the justice Department in Washington, D.C.); U.S. v. Libby, McNeil and Libby, 107 F. Supp. 697 (1952J(Trespass case to eject a non-Native fish trap held that the Hydaburg reserve was illegally established and void/. The United States Supreme Court also concluded that most Native lands in Alaska were held pursuant to unrecognized and uncompensable aboriginal title. Tee-Hit-Ton Band of Indians v. U.S., 348 U.S. 272 /1955). Finally, the Congress added Alaska as one of the mandatory Public Law 280 states and transferred federal criminal and limited cause of action jurisdiction over Indian Country in Alaska to the State57.
By the early 1960's, the federal government had already stopped setting aside Indian reservations in the state under the governance of village based Indian Reorganization Act tribal councils. Instead, the Department of the Interior was promoting voluntary transfers
of local government authority from federally chartered IRA councils to municipal governments organized under state law:
In commenting on matters of village organization, the Task Force calls attention to two problem areas:58
1. The need for establishing village governments consistent with the system of municipal organization found-throughout the State.
Comment: Native villages vary in size and quality for incorporation as cities of different classes. A majority, however, at least fulfill the criteria for fourth class cities. The Task Force suggests that the Juneau Office discuss with those communities which already have I.R.A. constitutions the pros and cons of dissolving their village associations and incorporating under State law. At the same time, it should work with non-I.R.A. villages to encourage them to organize in similar fashion.
2. The desirability of providing for State-licensed business organizations in the Native communities as an alternative to the granting of Federal charters.
Report to the Secretary of the Interior by the Task Force on Alaska Native Affairs 86, December 28, 1962.
Although some Native communities were persuaded to organize city governments during the 1960's, most cities in rural Alaska were not incorporated until the State of Alaska begin to distribute oil revenues to municipalities once North Slope oil production took off in the early 1970's. The tribal governments continued to exist along side the cities (IRA's require congressional action to dissolve).
Despite Statehood Act disclaimers of any interest in Native land and fishing rights, the United States Supreme Court only partially upheld Native rights to fish free of state regulation. Kake v. Egan, 369 U.S. 60 (1962); Metlakatla v. Egan, 369 U.S. 45 (1962). The State also rapidly filed for lands in'and around Alaska Native Villages as its entitlement under the Act. State of Alaska v. Udall, 420 F.2d 938 (9th Cir. 1969). Very soon, however, the Kennedy administration and later the Johnson administration started programs to address poverty conditions around the nation, including rural areas like Alaska, through a network of community development programs59 that eventually lead to increased attention to Indian programs.60Alaska Natives developed non-profit regional
development service organizations and acute political skills during this period of time.61 With these resources, political acumen, and luck, the Alaska Natives started on the path to a land claims settlement.62
Federal officials were called on to renew contacts with the tribal communities for the purpose of identifying villages that would be eligible for such a settlement. 63 At the time, very few villages still maintained active tribal governments.64 And yet, every Native community in the state relied upon the tribal status of their Native villages to sustain colorable claims to aboriginal title. With the passage of the Alaska Native Claims Settlement Act and the extinguishment of claims based upon aboriginal title, the collective attention and leadership of the Alaska Native community was drawn away from issues of local government and service delivery and, instead, focused on corporate organization, land selection, and business operations. It would take nearly ten years for villages in Alaska to replenish their cadre of leaders and for the issue of tribal government to surface again.
In the next section, we review contemporary views on tribal sovereignty and Indian affairs in Alaska.
III. Policy Positions
Knowledgeable participants in the Alaska Native land claims process thought that Native villages would eventually transform themselves from indigenous local governments into "ordinary business corporations" once a corporate based land claims was enacted:
[W]e have separated the native village as a municipal corporation from the native village as an incorporated tribal enterprise. And the lands and the' money will be going to the incorporated tribal entity which will be gradually transformed into an ordinary business corporation with shares that are fairly alienable.
See, Alaska Native Land Claims: Hearings on S. 2906, S. 1964, S. 2690, and S. 2020 Before the Comm. on Interior and Insular Affairs, 90th Cong., 2d Sess. 89 (1968)(Statement of Barry W. Jackson, Attorney for a Number of Indian Organizations)("Alaska Native Land Claims: Hearings on S. 2906").
Nothing could be further from the truth. If anything, ANCSA corporations have become more like tribes. Stock in the corporations remains inalienable indefinitely. Special amendments also allow corporate shareholders to make extraordinary distributions and stock conveyances for the benefit of Native elders and youth. Protections against the loss of community lands in corporate ownership have increased and growing numbers of Native villages are conveying lands or interests in lands back to tribal governments. Implementing the land claims took an extraordinary amount of time, but eventually attention returned to the village community.
A new policy of Indian self-determination evolved in the 1970's out of a growing number of federal Indian programs that shifted the responsibility for service delivery from the federal government to the tribes.65 Tribal government activity sped up partly because these programs were only available to Indian tribes and duly appointed tribal organizations.
The federal government began to bolster the status and authority of Indian tribes during this new era of tribal self-determination.66 In 1977, the American Indian Policy Review Commission declared that ANCSA did not "effect a termination of the traditional Alaska Native tribes...as its very title implies"--it was a settlement of aboriginal land claims.67 An earlier Special Task Force Report on Alaskan Native Issues prepared for the Review Commission went further: "It is presently unclear, although clearly a good argument can be made that Native villages are 'Indian Country' under the dependent community component
of the concept..."68 In 1977, the Assistant Solicitor for the Department of the Interior stated that Alaska Native groups could become Indian tribes within the meaning of the Indian Reorganization Act rather than going through the federal acknowledgment process.69 By 1982, the Department of the Interior published their first list of Alaska Native entities that the Bureau of Indian Affairs gave priority in federal Indian program funding and services.70
At the same time, village based tribes in Alaska began to push beyond their service delivery functions and started actively exercising governmental authority. During 1976, the Chilkat Indian Village enacted a tribal ordinance prohibiting the removal of artifacts from their village, Klukwan.71 The ANCSA village corporations for Arctic Village and Venetie quitclaimed the land encompassing their former reserve to their regional IRA government in 1979 and amended their 1978 gross receipts tax to include a business activities tax in 1986.72 In 1981, the Native Village of Tyonek amended their 1965, housing ordinance to require village approval of any alienation of tribal housing. A non-member leased tribally constructed housing in Tyonek in 1982 subject to the ordinance.73 Kluti Kaah, Native Village of Copper Center was planning a business activities tax for their community which included part of the Alyeska Pipeline.74 The Alaska State Legislature enacted a law that distributed $ 25,000 per year to tribal governments located in otherwise unincorporated communities.75 From these beginnings evolved a string of sovereignty cases and policy developments that would fuel the sovereignty debate for a decade:
Two core legal issues define the tribal sovereignty issue: 1) tribal status -- does a Native community enjoy a government to government relationship with the United States, and 2) tribal authority -- what powers does a Native community retain on its own or exercise on the basis of a delegation ffom the United States.
A few critical studies have reviewed these issues as they relate to Alaska. The American Indian Policy Review Commission Report in 1977 came too soon to address any of the specific actions being taken by Alaska Village tribes and thus concentrated on the
implications of ANCSA on the governmental status and authority of tribes in Alaska. A state study, Legal Status of the Alaska Natives, A. Report to the Alaska Statehood Commission (July 30, 1982), provides some of the first extensive legal analysis of the status and authority of Alaska's Native Tribes following David Case's early analysis of the Federal government's relationship with Alaska Natives.76 Thomas Berger raised the sovereignty issue in a Native sponsored report partly in response to the Secretary of the Interior's report on the implementation of the Alaska Native Claims Settlement Act required by section 23 of the Act.77
By far the most illustrative reports on the sovereignty debate resulted from a Governor's Task Force on Federal-State-Tribal Relations (the "Governor's Task Force") called by Governor Bill Sheffield on September 5, 1984. The official Report of the Governor's Task Force was drafted by Donald Mitchell and Robert Price.78 The Rural Alaska Community Action Program sponsored a "minority opinion" supported primarily by the Native and federal members of the Task Force.79 The two reports discussed five issues raised by Governor Bill Sheffield:
1) What groups of Alaska Natives have been recognized by the federal government as "Indian tribes?"
2) How does the federal government recognize Alaska Native tribes?
3) What are the respective governmental powers of a federally recognized "Indian tribe" in Alaska, a Native village council organized pursuant to the Indian Reorganization Act, and a Native village council which has not been organized pursuant to the Indian Reorganization Act with respect to exercising governmental authority over:
i. Its own members;
iii. Land and renewable resources otherwise subject to the
jurisdiction of the United States; and
iv. Land and renewable resources otherwise subject to the
jurisdiction of State of Alaska?
4) With respect to using state monies to fund essential governmental services in Native villages, what is the effect of a decision by residents of a village to dissolve their municipal government in order to use the IRA or traditional council to provide governmental services?
5) What are the legitimate interests of the State of Alaska and the legitimate interests of a Native council in exercising governmental authority over the Native and non-Native residents of the council's village and the land and resources within and surrounding the village? How are these interests compatible? How are they incompatible?
This framework will be used to summarize the respective policy positions expressed by Natives, the Federal government, and the State of Alaska in writings, litigation, and in public addresses. Some of these matters have been more or less resolved since 1986. We start with the first two questions regarding federal recognition, then complete the list with the comparative views of the three parties.
A. What groups of Alaska Natives have been recognized by the federal government as "Indian tribes?"
The State of Alaska and its Supreme Court believe that few if any Indian communities in the state had ever been affirmatively recognized by the United States as an Indian tribe.80 The Alaska Supreme Court relied upon research developed in the Governor's Task Force Report and ambiguous statements accompanying the publication of the BIA's earlier Alaska Tribal lists to support its finding. Without unequivocal recognition, Alaska Native tribes have been forced to argue that Congress had either recognized them through the passage of federal Indian legislation like the IRA and ANCSA, by publication of the BIA tribal list, or through a course of dealing with them as historical tribes.81
It appears that the Secretary of the Interior has resolved the status issue by publishing a list of 226 traditional councils and Indian Reorganization Act councils that the government deals with on a government to government basis. "Native Entities Within the State of Alaska Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs," 58 Fed Reg. 54,364 to be codified at 25 C.F.R. part 83 (October 21, 1993)("Alaska Tribal List"). The Secretary clarified that the listed traditional and Indian Reorganization Act councils:
are not simply eligible for services, or recognized as tribes for narrow purposes. Rather, they have the same government status as other federally acknowledged Indian tribes by virtue of their status as Indian tribes with a government to government relationship with the United States; are entitled to the same protection, immunities, privileges as other acknowledged tribes; have the right, subject to general principles of Federal Indian law, to exercise the same inherent and delegated authorities available to other tribes; and are subject to the same limitations imposed by law on their tribes.
Id. at 54366.82
The Secretary's publication of the Alaska Tribal List has already favorably impacted pending sovereignty cases in the federal courts. The federal district court in Alaska recently dismissed one of the listed villages from a federal lawsuit due to its tribal status and immunity as acknowledged by the Alaska Tribal List. Alyeska Pipeline Service Company v. Kluti Kaah Native Village of Copper Center, No. A87-0201-CV (Order (Tribal Status), December 22, 1993). The State of Alaska is a party to the Alyeska lawsuit and conceded Kluti Kaah's tribal status. The State left no indications that it will concede the tribal status of other tribal communities. Resolution of the status issue in federal cover does not necessarily mean that the state courts will follow suit until forced to either by the United States Supreme Court, the state legislature, or by continued concessions by the State's attorneys.
The Native community fought hard for the publication of a bona-fide tribal list.83 And yet, some smaller Native communities, historical Native communities located in urban areas, and a special legislative tribe are still not recognized pending administrative or legislative review.
B. How does the federal government recognize Alaska Native, tribes?
The federal government recognizes tribes by dealing with them on a government to government basis. The government memorializes the relationship in different ways. Historically, it entered into treaties with Indian tribes. More recently, the Congress has enacted laws that acknowledge the relationship. Congress delegated the duty of acknowledging Indian tribes to the Secretary of the Interior. Native groups in the United States can establish recognition of their status by petitioning the Secretary pursuant to federal acknowledgment procedure regulations.84 Alaska Native communities can also do so by filing an IRA petitions85 Successful tribal petitioners under either process are added too the list of acknowledged tribes published by the Secretary. Tribes can also litigate and attempt to prove that the United States has already recognized them as a tribe as a matter of law or fact.86
C. What are the respective governmental powers of a federally recognized "Indian tribe" in Alaska, a Native village council organized pursuant to the Indian Reorganization Act, and a Native village council which has not been organized pursuant to the Indian Reorganization Act with respect to exercising governmental authority over:
i. Its own members;
iii. Land and renewable resources otherwise subject to the jurisdiction of the
iv. Land and renewable resources otherwise subject to the jurisdiction of the
State of Alaska?
1. Native View
There was a time when it could be said that there was little if any consensus in the Native community on the status or authority of Alaska Native village tribes. Early on, missionaries acting as federal officials emphasized the policies that forced Natives to choose between citizenship and tribal membership87. These "official" actions influenced Native thought at the time and, for a time, institutionalized Native distrust of the IRA and the federal reservation system88 In the early 1980's Native leaders began to discuss the appropriated roles of Native tribes and corporations but also emphasized the failings of former tribal policies.89 More recently, with State policies perceived to be increasingly adverse to Native subsistence and civil rights, the same Native leaders now advocate that "Tribal governing powers, long denied by the State of Alaska and the federal government, need to be recognized and accepted as part of our state's governing system."90
And yet many Natives remain wary of the limited legalistic and political view of tribal status and powers. A Tlingit from southeast Alaska expressed this concern the best:
I feel that every time that we Indians dance, every time that we teach our children their culture and the way that our society is set up in a matrilineal society, how we learn from our mothers' people, how we take our mothers' crests, every time we carry potlatches every time we go out there to provide
the customary foods for our potlatches, these are ...exercises of sovereignty. I feel that every time that our people are arrested for going out and getting these foods to provide for potlatches this is an infringement and a denial of our sovereign rights...
Alaska Natives Commission Hearing at Klawock, Alaska, October 24. 1992, (Testimony of Gilbert Charles Fred) .
...I am against putting down our definitions of sovereignty. Sovereignty isn't a word that is there for other people to define. Sovereignty, to us, is a word that is lived. Sovereignty is the ancestral spirits that each and every one of us carry within our hearts and within our minds, etc. , and that power and that driving force ...This is what sovereignty means to us, another (politician) can be there, and they can take that document; and they can twist it to suit their own fancy and put their own interpretations in there. So I'm leery about doing that...
Id. (Testimony of Gilbert Charles Fred).
In sum, the Native community has reached consensus on the tribal status issue and appears to be moving toward agreement on the authority of tribes. The best example of this trend is seen in a recent analysis of the Solicitor's Opinion by the AFN 91 The AFN criticizes the Solicitor's conclusion that tribal status in Alaska is a rebuttable presumption and cites approvingly to the newly published Part 83 tribal list. AFN also claims the Solicitor's Indian Country analysis as inconsistent with recent federal court decisions and administrative practice. However, AFN does not discuss, as few do, the potential scope of tribal powers. Consensus on tribal power will only occur after tribes begin to use their power.
Generally speaking, Alaska tribes support the view that their jurisdiction is no different than that of reservation based tribes. Their views are summarized as follows:
Its own members -- Tribes enjoy civil and concurrent criminal jurisdiction over their members within and outside tribal territory which at a minimum includes ANCSA village corporation entitlements and restricted properties held by members.
Non-members -- Tribes may employ civil regulatory and adjudicatory jurisdiction over the activities of non-members who enter into voluntary agreements with the tribe or tribal members or otherwise threaten the tribe's political integrity or the health, safety and welfare of the tribal community. Montana v. United States, 450 U.S. 544 (1981).
Land and renewable resources otherwise subject to the jurisdiction of the United States? -- The federal government exercises jurisdiction over federal lands and waters in the state (including navigable waters), restricted allotments and Native town sites, and dependent Indian communities which at the very least also include village corporation lands. Tribes exercise concurrent jurisdiction, with the federal government, over
dependent Indian community lands and water and may jointly govern more in cooperation with the federal government through co-management agreements.
Land and renewable resources otherwise subject to the Zurisdiction of State of Alaska? -- Either federal laws will preempt state laws or tribal interests will prevail within dependent Indian Communities when weighed against state interests. State interests generally will prevail on state lands outside of dependent Indian communities.
2. Federal View
Congress can establish policy on any matter concerning Indian Affairs. Congress has effectively removed itself from any role in this process by including disclaimers in most recent Indian legislation. These disclaimers state that nothing in the legislation will either diminish or expand Alaska Native tribal authority nor validate or invalidate any claim of sovereign authority over lands and people.92 The Executive Branch enacts regulations consistent with federal laws and can issue opinions and publish court briefs on these matters. Executive Branch authority is particularly persuasive on determinations of tribal status which Congress delegated to it. The federal courts can determine the meaning of federal laws and their application in cases where the statute does not. do so.. In this respect, the federal courts have historically lead the way in determinations of Indian Country and may make determinations that are inconsistent with administrative decisions of the Executive Branch, but not of the Congress so long as it operates within the scope of its power over Indian affairs: The Solicitor's Opinion published in the eleventh hour of the Bush Administration is only one view, albeit and important one, of the policy of the federal government despite the fact that the current administration says that it is reviewing the opinion as it regards Indian country and tribal authority in Alaska 93 The Solicitor argues that ANCSA did nothing to effect the retained tribal powers necessary to determine membership and to regulate internal tribal affairs (subject matter untied to territory)94 other powers delegated to them by Congress -- such as the authority under the Indian Child Welfare Act.95 As for Indian Country in Alaska, the Solicitor concludes that the Congress expressed an intent that ANCSA lands do not constitute Indian Country 96 Although the Solicitor acknowledges that restricted town site lots and allotments remain Indian Country for federal jurisdiction purposes, it also concludes that tribes do not exercise governmental authority over restricted properties unless they own them. Whether these rather novel interpretations of federal Indian law will be accepted by the federal courts is yet to be seen. The Federal District Court in Alaska and the Ninth Circuit Court of Appeals have already determined that Indian Country can exist in the state and, contrary to the Solicitor's Opinion, that ANCSA did not affect either the tribal or Indian Country status of Indian
lands in Alaska. 97 The federal government's present positions are summarized as follows:
Its own members -- Solicitor: tribes control membership issues and exercise those powers that are not dependent on a territorial base. See, Cohen at 347-348.98 Federal Courts: No tribal powers are precluded subject to findings of tribal status and Indian Country.99
Non-members -- Solicitor: No tribal powers in the absence of tribal territory, except in limited instances where federal law delegates limited subject matter jurisdiction to the tribes as in ICWA.100 Federal Courts: No tribal powers are precluded. A standard analysis would apply subject to findings of tribal status and Indian Country.101
Land and renewable resources otherwise subject to the jurisdiction of the United States? -- Solicitor: No tribal powers unless the tribe is one of 27 that were conveyed unoccupied town site lots and the tribe can show some "tribal nexus" to the land.102 Federal Courts: No tribal powers precluded,
subject to standard Indian Country tests. All dependent Indian community.
lands are automatically subject to federal jurisdiction. Restricted Native
allotments and town sites could be included as part of the tribal territory.
Land and renewable resources otherwise subject to the jurisdiction of State of Alaska? -- Solicitor: No tribal powers exist.103 Federal Courts: No tribal powers precluded, subject to standard Indian Country tests. State jurisdiction could be preempted by federal law or subject to a balancing test between State and tribal interests.
3. State View
Until recently, the State clearly expressed their view on tribal status and powers in their legal opinions, briefs and court decisions. The recent concession in the Alyeska Pipeline case leaves the State Supreme Court and the State Attorney General at odds. The Alaska Supreme Court only concedes that certain factually unique villages that possessed Indian country reservations at the time they adopted IRA charters might be tribes.104 Copper Center, on the other hand, has never been declared Indian Country and is not organized under an IRA charter. Otherwise the State believes that tribes do not exist and since tribes do not exist, Indian country cannot exist for purposes of the tribes.105
At one time, Governor Cowper issued an Administrative Order 123 (Sept. 10, 1990) that recognized the tribal status of ANCSA villages for purposes of federal Indian program service delivery and recognized tribal powers sufficient to manage solely internal affairs much akin to the current Solicitor's view. Governor Walter Hickel revoked Administrative Order 123 and replaced it with Administrative Order 125 declaring that "Alaska is one country, one people." The Order goes on to say that the State "opposes expansion of tribal governmental powers and the creation of "Indian Country" in Alaska. The State of Alaska's views on tribal authority can be summarized as follows:
Its own members -- Tribes do not exist. in ,Alaska, except on Metlakatla and in extraordinary circumstances, and therefore cannot have members or jurisdiction over them..'
Non-members No tribal power except for civil authority on Metlakatla.
Land and renewable resources otherwise subject to the jurisdiction of the United States? -- No tribal power except on Metlakatla.
Land and renewable resources otherwise subject to the jurisdiction of State of Alaska? -- No tribal power.
D. With respect to using state monies to fund essential governmental services in Native villages, what is the effect of a decision by residents of a village to dissolve their municipal government in order to use the IRA, or traditional council to provide governmental services?
1. Native View - See, C.1.
Natives have argued that State actions precluding Indian tribes from state funding mechanisms on the grounds that they are racially defined organizations constitutes discrimination based on an unlawful (and erroneous) racial classification in violation of the
United States Constitution.106 Natives argue that the State can fund Native government in otherwise unincorporated communities in the same way that it funds incorporated communities and the Metlakatla Indian Reservation. The States distinguishes the funding for Metlakatla on the grounds that the tribe is recognized and occupies an unextinguished Indian reservation. The distinction will not hold up if other tribes in Alaska are found to occupy dependent Indian community since reservations are merely another kind of Indian Country unrelated to the racial makeup of the tribe.
2. Federal View - See, C.2.
3. State View - See, C.3.
Although the State does not acknowledge the existence of tribes, its agencies employ fictions to get around the practical consequences of the State's view. Since the publication of the Governor's Task Force Report, the State has enacted legislation and regulations allowing municipalities to dissolve. A.S. 29.06.470, 29.06.500; 19 AAC 10.130. The first dissolution involved the City of Akiachak.107 The Local Boundary Commission found that it was in the best interest of the State to permit the dissolution in part because "it seems evident that the Akiachak IRA Council is willing and able to provide local services to the community."108 The communities lose some state revenue sharing funds and all of their municipal assistance, but recent legislative budget cuts to these programs make this a less significant concern than before.
E. What are the legitimate interests _of the State of Alaska and the legitimate interests of a Native council in exercising governmental authority over the Native and non-Native residents of the council's village and the land and resources within and surrounding the village? How are these interests compatible? How are they incompatible?
These issues are the same as they were in 1986 when the two Task Force Reports were issued. The Governor's Report only discusses the jurisdictional implications of the Indian Child Welfare Act. The RuralCap version includes analysis on the issues of criminal and civil jurisdiction; the federal tests for jurisdictional conflicts; and the jurisdictional consequences of the Federal Liquor Control laws, the Indian Child Welfare Act and dependent Indian community. The general jurisdictional concerns arising in these contexts have already been discussed above and will be developed more fully when the federal district court in Alaska decides the current tribal sovereignty cases on its docket. The following section reviews issues and recommendations suggested by witness testimony to the Governance Task Force and to the Commission.
IV.Summary of Issues and Recommendations from Witness
Witnesses, primarily Native from all regions of the state, testified to the Alaska Natives Commission on a wide range of issues. Some hearings addressed only governance issues under the jurisdiction of the Governance Task Force established by the Commission. Hearings at smaller rural locations were open to comments on all Commission issues from education to governance. The following are excerpts from this record on matters related to Alaska Native village tribal government and the "Sovereignty Issue."
A. Tribal Status--
The Secretary of the Interior should publish a bona fide list of Alaska Native tribal governments and defend the tribal status of Alaska Native villages against legal assaults by the State and third parties.
The State of Alaska should recognize the tribal status of Alaska Native villages and conform its legal interpretation of tribal sovereign immunity with that of the federal judiciary.
The failure of the federal government to clearly recognize Alaska Native Village tribes exasperated Alaska Native witnesses and facilitates assaults on fundamental tribal interests in the state and federal courts by the State of Alaska and private parties. See, Alaska Natives Commission Hearings in Fairbanks, Alaska, July 18, 1992, (Written testimony of Shirley L. Lee).
This Secretary of the Interior partly resolved this issue by publishing an Alaska Native tribal list on October 21, 1993 clarifying that the entities listed are traditional councils or Indian Reorganization Act councils which the BIA deals with on a government to government basis.109 Since then, judge Holland dismissed Kluti Kaah Native Village of Copper Center from a federal lawsuit on the grounds of its tribal status and immunity as acknowledged by the BIA tribal list. Alyeska Pipeline Service Company v. Kluti Kaah Native Village of Copper Center, No. A87-0201-CV Order (Tribal Status, December 22, 1993 ).
Although the Alaska tribal list does not resolve the scope of tribal powers issue, tribal status raises a strong presumption that certain powers, not requiring a tribal land base to exercise, continue to exist in a tribe unless Congress explicitly extinguishes the powers by legislation. Some examples of these powers include tribal sovereign immunity, personal jurisdiction over members, and certain kinds of subject matter jurisdiction such as child welfare matters governed by the Indian Child Welfare Act. Despite federal recognition, the State continues to attack and diminish Alaska tribal status in state court decisions that conflict with federal precedent and practice. See e. g. Note, The Waiver of Tribal Sovereign Immunity in the Contractual Context: Conflict Between the Ninth Circuit and the Alaska Supreme Court?, 10 Alaska L. Rev. 363 (1993)(Student note comparing the State Supreme Court's theory of implicit waivers of tribal immunity to the federal rule against implicit waivers).
The state legislature should enact legislation reversing the untenable state policy on tribal
status reflected in Stevens Village v. Alaska Management and Planning, 757 P.2d 32 (Alaska 1988)(Supreme Court holding that there are no tribes in Alaska except for rare exceptions). 110 Only then, can the tribes and the State get on to the more critical matters of exploring the scope of tribal government powers in Alaska.
Witnesses before the Commission demonstrated a striking appreciation of tribal sovereignty, its contemporary reality and the special problems (and dangers) of replacing "living" tribal sovereignty with a process and definition grafted into a statute or other government edict such as a list created and approved by a third party. Typical of this appreciation was the testimony of Gilbert Charles Fred of Angoon, member of the Wolf Clan, speaking to the Commission at its October 24, 1992, hearing in Klawock in his native language:
[I]t needs to be reiterated that when our people speak of sovereignty, sovereignty is something that we have. Sovereignty is like our muscles. It's there. It's something that we shouldn't ask for. I believe that sovereignty is something that is useless unless we exercise it...When [the Tlingit and Haida] sued the federal government for lands taken from them and placed in the Tongass National Forest [that was] an indication of the indigenous tribes of Alaska exercising their sovereignty, making sovereign claim to these lands, and saying: "This is our land ...this is a right that we've never relinquished."
[T]he Tlingit and Haida suit, when they sued the federal government, spearheaded the ANCSA; and the passage of ANCSA is another indication of indigenous tribes of Alaska exercising their sovereignty.
I feel that every time that we Indian dance, every time that we teach our children their culture and the way that our society is set up in a matrilineal society, how we learn from our mothers' people, how we take our mothers' crests, every time we carry potlatches every time we go out there to provide the customary foods for our potlatches, these are ...exercises of sovereignty. I feel that every time that our people are arrested for going out and getting these foods to provide for potlatches this is an infringement and a denial of our sovereign rights...
Alaska Natives Commission Hearing at Klawock, Alaska, October 24, 1992, (Testimony of Gilbert Charles Fred).
I feel very saddened to testify that our people are being denied their tribal and inherent rights. We do have sovereignty, I have seen the Hickel Administration; I have seen Frank Murkowski in Washington, D.C., try to define sovereignty; and I've seen their definitions in newspapers and they try to put out into the general public that sovereignty means that our people want a totalitarian government apart from the United states government. That is not true. Their attempts to define sovereignty to destroy our efforts to claim what is our inherent rights are working to the detriment of our people; and it's evident out there today. I feel that for an official to stand up and to say that: "I am against sovereignty. I'm against,
you know, totalitarianism."
This isn't true. We swear, in the Alaska Native Brotherhood, to stand and uphold the Constitution of the United States. Many of our Tlingit, Haida, and Tshimshian people have gone to war in World War II and Viet Nam and have fought for this country. We have no indications or endeavors whatsoever to try to create a separate government. All we are here is we are citizens of the United States; but yet we have some tribal inherent rights as the indigenous tribes of Alaska, that are not being met; they are being denied at his moment.
I take offense to people like Walter Hickel, the Governor of Alaska, and Frank Murkowski opposing sovereignty and drawing their own conclusions as to what sovereignty means. Angoon is an area that understands what sovereignty means, we live it. We exercise it. Every time we teach our kids our songs and dances, we're exercising sovereign rights. Any attacks upon these rights, I look at as an ...attack on our sovereignty.
Id. (Testimony of Gilbert Charles Fred).
Asked by Commissioner Elliott to join with the people of Angoon to write down their definition of sovereignty, Mr. Fred refused:
I would object to writing [it] down and taking an attempt, irregardless of whether or not I took this issue to the Grand Clan for it to say: "Let's get together and put it in a hat what we think sovereignty is and then put this down on paper." I am against putting down our definitions of sovereignty. Sovereignty isn't a word that is there for other people to define.
Sovereignty, to us, is a word that is lived. Sovereignty is the ancestral spirits that each and every one of us carry within our hearts and within our minds, etc. , and that power and that driving force-- that forces (us to) stand up to fight for areas that are being threatened by the United States Forest Service ...This is what sovereignty means to us. Another Walter Hickel can come into office, and another Frank Murkowski can be there, and they can take that document; and they can twist it to suit their own fancy and put their own interpretations in there. So I'm leery about doing that...
Id. (Testimony of Gilbert Charles Fred).
Native people and their communities seek control over the most fundamental parts of their lives- the parts that define what it means to be a Native community- protection of Native lands and resources; promotion of the health, safety and welfare of Native people and their culture through education, Native service delivery, and protection of cultural artifacts and practices, preservation of Native land and resource uses also called subsistence; and self-government, the prerogative to make-their own rules and live by them. To these matters, governments and others attach the tag sovereignty. Preconceptions and misconceptions regarding the implications of sovereignty create constant problems for village tribes:
Unfortunately, in Alaska we have a State administration that has asserted that there are no tribes in Alaska; that they are just merely clubs based on-membership ...based on racial ties. This cannot be further from the truth. [I]n addition to the state perception, we also have a general public perception that seems to fear tribal government. When we heal the word
sovereignty, many people's hackles go up ...sovereignty is merely a reference to self-government that does exist in our villages."
July 1992 Hearing in Fairbanks (Testimony of Shirley Lee).
B. Indian Country--
The Secretary should withdraw the Solicitor's Opinion and clarify the federal government's position on the jurisdictional status of Native lands in Alaska by participating in pending federal court cases in support of Alaska Native tribes.
Witnesses could cite from memory the scope of their traditional territory.
Now, we the people from Klawock and around this part are sovereign people. We own from Point Baker all the way across to Point Ellis, all the way to the point out there, and down to Marsh Point over there. You know, these are the things that our grandfathers, our fathers told us. My grandmother told us what we owned. These are the things we understood. We never put it down on [a] piece of paper saying we owned this. But I bet you one thing, the Commissioners that they send around like you people have put it down on paper as to where we own.
Klawock Hearing (Testimony of James Martinez).
As witness Dalee Sambo reminded the Commission, The Alaska Native Review Commission, chaired by the Hon. Thomas Berger, had determined that villagers perceived their villages as staging areas for subsistence and had their own laws to deal with the conservation and harvest of wildlife. (See testimony of Dalee Sambo, October 16 Governance Hearings in Anchorage, recommending review of Chapter seven of T. Berger, Village Tourney: The Report of the Alaska Natives Review Commission (1985)). Although Berger limited his definition of Indian Country to the core village, Alaska Native witnesses to the Commission stressed the need for village government to exercise control over subsistence regulation, resource conservation practice, liquor control and economic development outside the village core. These lands include those traditionally employed by villagers, a geographic realm now usually in the private and public jurisdiction 'of entities far from the village and incapable of monitoring occurrences there without close cooperation of village authorities.
Alaska Native witnesses were confounded by the popular view of their situation and well understood their legal position under federal Indian law. Gideon James of Arctic Village drew the distinction between aboriginal title to land "that we lost and that then Native people got paid for" and aboriginal rights that were not lost. Said James:
That's why the traditional government and IRA charter are in place today. And each tribe in Alaska should pursue to exercise those powers that are still in place. And it seems like the State of Alaska does not look at it that way, they'd rather take us to court and spend many, many hours, many, many years, just litigation, litigation, after litigation. And we have experienced that. We at the IRA government experience that, and we know what we're talking about. We're not going to compromise over any specific interest decision or recommendation; we will stand by the promise and the law that was written for Native tribes and IRA documents that are in place today.
July 1992 Hearing in Fairbanks (Testimony of Gideon James). Alaska Natives, like the federal courts, do not believe that the Alaska Native Claims Settlement Act extinguished Indian Country in Alaska. By and large, Natives believe that tribes still retain control over territory in their communities.
C. Land ownership and control--
Native communities should be able to freely allocate ownership of and control over Native lands between Native corporations, tribal governments, individuals, and other Native institutions.
Native communities should be able to guide land use decisions where competing
uses threaten tribal and subsistence interests.
Witnesses in Kotzebue, focused on the absence of ownership or control by Alaska Natives of lands on which they depend.
You look at maps, like the one that's hanging on that wall right there. That's the NANA region. That's now what ...I'm supposed to identify as my region because I'm a NANA shareholder. It's probably got seven or eight different colors on there. And all these colors show all these different entities that got their hands on Native lands. And we buy into that map. We look at it and we say, Okay, NANA owns this land KIC owns this land, the National Park Service owns this land, Fish and Wildlife has a little bit in here too.
The biggest problem that the Native people have is ourselves buying into this system that's put into place for us. We've so freely given up the traditional ways of our life, the way that we governed ourselves, working with a consensus, and bought into a troubled system.
Alaska Natives Commission Hearings at Kotzebue, Alaska, October 2, 1993, (Testimony of Ian Erlich).
Maybe the government of the United States will ask the local Native government how problems should be dealt with. But its not looked at that way. There is no government-to-government basis. And we continue to all just sit around and let things go the way they are.
Id. (Testimony of Ian Erlich).
John Erlich, Sr., took up his brother's theme by illustrating how, over time, competing uses could transform policy in the wildlife refuges from one that emphasizes a subsistence preference to one that balances that off with emerging uses, including tourism. Using the world famous Kobuk sand dunes as an example he explained:
[P]eople will want to see the Kobuk sand dunes. And so they (will) set up a.
little visitor's center in there. Well, you can't have Inupiat people running
around with guns, shooting at animals, when you've got tourists and
recreationalists there viewing the sand dunes. So it'll start off they won't
cut off hunting in the whole park. But they'll declare a small area as being
a non-subsistence zone ...[B]eing that there is money in tourism, the interest
in tourism is going to grow; they're going to want to access more land,
again, perhaps, a non-subsistence zone will grow. (J. Erlich, id.).
John Erlich, Sr. emphasized that the same encroachment was likely to emerge from pressure to access land and resources by outside interests. Returning to his brother's "map," he noted that: "I don't see under any of those different colors any land holding or any reserved lands for Inupiat government or for Inupiat people." (J. Erlich id.). Even Native corporate plans were not immune.
Some people misconstrue NANA Corporation lands to be Inupiat lands. But these corporations ...operate under a state charter. And even to this day, they fall under the jurisdiction of the state, as far as fish and wildlife management. (J. Erlich, id.)
This same cold recognition of the dangers that competing interests posed on land once held
by Inupiat under Aboriginal Title, subject to now extinguished Aboriginal Hunting Rights,
emerged with an appreciation that statutory and administrative policy could change with
deadly results to those who depended on subsistence. Ricky Ashby of Noatak told the
Commission that the village had pinned its future and risked its present fiscal security on a
vast tract of land near the village in order to protect its subsistence base. (Ricky Ashby,
Kotzebue Hearings): Thus, at the core of land use concerns was a recognition by witnesses
that without a tribal land base sufficient to sustain a subsistence economy, villages would
need strong empowerment and authority over land use in domains that each did not own.
Such an authority could only emerge from secured Native governmental land use control
along with constitutional entrenchment of aboriginal hunting rights, now extinguished by
the Claims Settlement Act. --
Witnesses also noted that competing resource management regimes make attempts at coordination among owners wanting to facilitate subsistence more difficult:
A[n] area of concern has to do with game management differences, State versus Federal versus Tribal, and on private lands, ANCSA lands. Here in Barrow, we have gotten very close to initiating an agreement between the Village Corporation and the Native village organization, which would provide for the management of permitting systems for accessing of private lands for the purpose of hunting. And just about a month or so ago, came the Indian lands ruling, which basically throws all of our work out of the window.
Alaska Natives Commission Hearings at Barrow, Alaska, February 24, 1993, (Testimony of Dale B. Stotts referring to assertion of federal subsistence management).
Other problems related to land selection and available state or federal resources. As in other hearings, a witness at the Barrow hearing reported that the NSB could not complete its selection due to the absence of governmental personnel to conduct appropriate surveys and classifications. Barrow Hearings (Testimony of J. Kaleak).
Many innovative examples of land allocation were provided to the Commission at the Barrow hearing by Ronald H. Brower, Sr. Land transfers that worked to improve the community included donations by the village corporation to the City of Barrow for an elders home, seven and a half miles of gravel for housing within subdivisions and other donations to the North Slope Borough. Native control over most state and federal institutions on the North Slope provides the confidence necessary to go beyond statutorily mandated conveyances:
UIC [Ukpeagvik Inupiat Corporation] is probably the only [village corporation] in the State that has developed subsistence subdivisions and assisted the Feds in developing their regulations."
The state and federal governments should enter into co-management and other jurisdictional agreements with Native communities for the purpose of coordinating the regulation of their members, land and resources, and other persons and matters within the scope of their authority.
The state. and federal governments should formally acknowledge the concurrent criminal jurisdiction of Alaska tribes within their communities and work cooperatively to develop justice procedures that ensure adequate protections for individual rights consistent with the Indian Civil Rights Act.
Delbert J. Rexford, representing the City of Barrow, told a February 1993 hearing that the Commission should recommend that: "some sort of cooperative management of the renewable resources [should] be established with the Native tribal councils, so that there's , an enforcement program and implementation of [a] permitting process on our lands to protect our renewable resources."
This theme is borne out of the direct experience of North Slope Inupiat as the tribes fought to maintain bowhead whaling by engaging in an international process, dealt with offshore oil drilling and attempted to sort out the diverse jurisdictions of borough, state; federal, village and regional corporate, municipal and tribal entities in matters of community development and subsistence.
Village witnesses as well as state representatives and members of regional corporations spoke of both formal and informal working relationships between service providers and village leadership in problem areas, ranging from management of wildlife to concerns with health and criminal behavior. From their unique perspective as present or recent actors within the governmental processes, they gave a new call for local control, emphasizing the special utility of tribal empowerment.
In Southeast Alaska Gilbert Charles Fred of Angoon addressed the practical realities of resource management and social problems in his testimony in favor of a formal and central role for tribal authority:
The management of our resources is in havoc right now. We have the state managing within the three-mile limit, and the federal government managing outside of that. Our people 's stand [is] in honor of our ancestors [who] asserted: "We know what is best for our resources within our areas adjacent to our communities."
Irregardless of how much money the state government has, they do not have the means available to manage our resources that the local residents do. We have to buy a hunting license in order to go out and hunt food for our people. And we hear elderly saying: (Speaking in Native tongue.) "Grandson, I need some deer. I'm hungry for deer. My body's screaming for deer."
We'll have handicapped people out there that can't go out there and get their own deer, and when we use up our tickets that we acquire when we buy our hunting license, we go beyond that and go out and continue to hunt, even when we don't have deer tickets, to meet the needs of our people. And when the Fish and Wildlife Department sent out
questionnaires saying: "We need to know how many deer you shot last year."
I'm willing to bet you that virtually everybody in Angoon has put down a lower number than they have actually harvested. And I certainly believe that in order for the Fish and Wildlife Department to best manage our resources and assure future generations that, yes, these resources will be made available to them, we have to give an accurate estimation of how much deer we shot; and I feel that the State Department had best look into the feasibility of tribal management; tribal Fish and Wildlife Officers being trained; contracting out federal grants; letting Angoon IRA, Sitka SEA maintain their fish and wildlife habitat, because if I had somebody from Angoon maintaining the ordinances that the tribe lays down and if I say: "Well, I only shot two deer last year," They'll say: "No, we know how much deer you shot."
[T] his way we [can] best assure that we don't over exploit and deplete our resources that are out there. It's best managed by our people. I feel that all of the wildlife stock is out there today as a result, and it stands as a testament to the fact that our people best knew how to manage these resources.
Klawock hearing (Testimony of Gilbert Charles Fred).
Numerous witnesses promoted tribal control over justice services. William Cotton, executive director of the Alaska State Judicial Council and his colleagues presented a study which demonstrated the continuing importance to the state of tribal judicial activity by special courts and village councils in matters of village social control throughout Alaska, this despite the state's long-standing position in that it had been delegated exclusive criminal law authority under P.L. 280. Hearings Before The Alaska Natives Commission Task Force on Governance At Anchorage, Alaska, April 14, 1993, (Testimony of Bill Cotton, Ex. Dir. Alaska Judicial Council). Said Cotton:
We tend to see that ...in communities where there is an active local organization looking at what's going on in the community, trying to control minor conduct that we have a lot less cases in the state criminal justice system. We don't have the Troopers going in all the time, we don't have the prosecutor prosecuting cases, we don't see those cases, we don't see those people from those communities in the state courts. (Cotton, id.).
Both the local community and the state benefit from this village activity. Said Cotton:
[B]asically, the state does not have the resources, especially at the present time, to provide comprehensive justice services in rural Alaska. (Cotton, id.).
His colleague, Terri Cams, described recommendations of the recently concluded Sentencing Commission, chaired by the Chief justice, that had built upon the de facto working relationship in an effort to create alternative punishments.
[I]n the context of Native offenders, (the commission) encouraged the development of...alternative punishments that, again, to tie in very closely to the work of the tribal courts and councils and using them to supervise community work service and using them to come up with creative ideas for punishments in rural areas.
April 14 Governance Hearings in Anchorage (Testimony of Terri Cams). See also Exhibit Alaska Sentencing Commission's 1992 Annual Report to the Governor and the Alaska Legislature, December 1992.
Village Public Safety Officers trained by the State Troopers, but employed by regional nonprofit corporations, were said to best serve when (as in Minto) they continued the village tradition of channeling nonviolent matters to the local forum and more serious matters to the distant troopers and prosecutors in regional centers. April 14 Governance Hearings in Anchorage (Testimony of Alaska Native Major Glen Godfrey, Deputy Director, Alaska Division of State Troopers).
Despite their continuing value to both villagers and the state, witnesses spoke of pressures on this long-term arrangement. These pressures include the numbers of problems at the village level that village forums without resources or clear legal recognition must confront and the absence of funding for oversight by state troopers. April 14 Governance Hearings in Anchorage (Testimony of Major Godfrey).
At least as significant was the discovered absence of Alaska Natives or even non-Natives with village experience among, judges, prosecutors and defense attorneys in the criminal justice process. On prosecutors, see April 14 Governance Hearings in Anchorage. (Testimony of Dean Guaneh, Chief, Alaska Department of Law, Criminal Division).
The tilt of the modern state system toward urban rather than village options was most evident in the manifest failure of the state correctional system to develop probation and parole alternatives that returned village offenders to villages with authority for their behavior vested in village institutions. The result of this shift to release and supervision in urban areas created new problems for Native offenders without roots in the cities and was said to be one reason for the widespread violation of conditions of release.
According to public defenders who had represented Alaska Natives, high rates of incarceration were often due to violation of probation conditions which did not reconnect the offender to the authority of the village.
Native American people serve their sentences on the installment plan. They just do ...they get a break, they get a suspended sentence or part of their sentence suspended. They get out; there's conditions that most of us who know the system know they couldn't keep."
April 14 Governance Hearings in Anchorage (Testimony of Margi Mock, Supervisor, Statewide Appeals, Alaska Public Defender Agency).
Former Kotzebue Public defender Geddes highlighted the problems confronted by Alaska Native defendants when critical decisions are made by state professionals with little understanding of the difficulties faced by villagers who must comply with conditions of release:
[T]he individual who I saw arrive up there [as a state probation officer], for months and months didn't really comprehend how it all worked, how that lifestyle worked, how people got around, the kinds of factors that they had to consider when making any travel plans, the kind of difficulties that they had in terms of maintaining regular periodic contact.
April 14 Governance Hearings in Anchorage (Testimony of Ms. Mary Geddes, assistant federal public defender).
The conflict between the presumed statutory allocation of exclusive authority for criminal justice process to the state and the informal allocation of responsibility between state and village authorities also worked to deny villages federal funds allocated for law and order services to Indian tribes that most tribes received to sustain tribal courts and tribal police in the lower 48.
"[The] tribes in the Lower 48 are eligible for law enforcement ...I feel we're eligible for those kinds of funding, because, in the first place, we're having to deal and hire our own village police officers to enforce local ordinances. And the state, although they have some resources, they don't always show up when you Treed them."
October 16 Governance Hearings in Anchorage (Testimony of Willie Kasayulie, chairman, Akiachak Native Community).
For these reasons the Task Force recognized that for the working relationship to be maintained and enhanced (especially in development of alternatives to incarceration), the state must re-address its authority under Public Law 280 and seek a new relationship between village and state justice. See comment of Commissioner Boyko, April 14 Governance Hearings in Anchorage.
Concurrent jurisdiction in matters of juvenile and family law was also advocated by witnesses, given the diminution of social service resources, the failed promise of early state intervention or family therapy and the special initiatives undertaken by some villages under the Indian Child Welfare Act.
I think that it would be economically feasible for the state and federal governments to determine the feasibility of assisting and setting up more Indian Child Welfare Act core systems within the infrastructure of IRA and tribal governments ...because the tribe ...knows what is best for a child. If the child comes from a broken home, abusive parents that are alcoholics and drug addicts...
[I]t's disheartening to hear an Indian child coming back home and saying:
"Yes, I do not know my culture, I don't even know who my people are, I don't even know my relatives; but I know that I am a Tlingit. My parents were abusive and ...Child Social Services came in, and took me away; and they put--placed me in a Caucasian home in the Lower 48."
I feel that the Indian Child Welfare Act could best address this issue and best knows who can best care for this child. Not somebody in some agency out in Fairbanks, Anchorage, or Juneau. They need a localized .... Indian Child Welfare Act to best deal with these issues. And I feel that it would be economically feasible, not only for the state agencies--adoption agencies, etc., [because] the tribe best knows how to handle these issues. We have for thousands of years.
Klawock Hearing (Testimony of Gilbert Charles Fred).
The State and Federal governments should facilitate local and regional strategies for financing Native governments.
Arnold Brower, Jr., President of the Native Village of Barrow saw the problem of financing tribal governments in Alaska as fundamental:
[I]n speaking for the self-determination of the tribal governments ...there is a lack of funding sources that I found out for practically every tribal entity in Alaska. And this is detrimental for a self-determination act provision to a tribal government. [For example] [w]hen a government does not have a home base to have its own meeting and planning facilities, then it kills the purposes of self-determination. So these kinds of facility funds needs to be appropriated for these villages- Native villages.
Barrow Hearings (Testimony of Arnold Brower, Jr.).
Witnesses observed similar funding shortages under state law:
[T]here are meetings that are scheduled, and a lot of them are outside meetings. You know, go to Lower 48 and have these special training sessions for administrators, clerks, all members of the council; lot of information on meetings. But we don't have funds for these meetings. And I would like to see -- especially I'm speaking for Noatak, because Noatak is not incorporated through the state, so we are not recognized by the state. If we get moneys from the state, they go through the Borough ...And then by the time we get those, sometime they can be cut, because they're things that they want to cut for administrative fees before they pass them on to the village.
Kotzebue Hearings (Testimony of Ricky Ashby).
Critical to economic survival were problems of financing village infrastructure. Jack Smith, speaking on behalf of the director of the North Slope Borough health department, spoke of the difficulty of ràeeting basic needs in rural Alaska with scarce dollars:
The Alaska Native Health Board's identified that 1.6 Billion Dollars would be needed to bring just the village health clinics up to acceptable water and sewer standards.
Barrow Hearing (Testimony of Jack Smith).
Concern was voiced from many witnesses about millions of dollars spent on social programs with no apparent result. The nub of the problem for Joe Ballot, president of Maniilaq, .the regional Native non-profit corporation in Northwest Alaska, was "that there are so many policies and programs being written without the involvement of the Native people." Not only financing but finance planning should involve Native government consultation, especially with declining revenues and the increased shouldering of the burden of program implementation on Alaska Native institutions.
Witnesses stressed many economic development projects they desired to undertake if only allowed. October 16 Governance Hearings in Anchorage (Testimony of Mike Williams). Mr. Williams cited fisheries and tourism.
Given the influence and promise of the Indian Child Welfare Act, several witnesses decried what Lorraine Jackson of the Cooper River Native Association termed unfair and inconsistent distributions to the tribes by the BIA:
Programs which were funded one year were not funded the next; and, in general it was difficult to provide consistent services. This year, BIA is interested in contracting directly with tribes, and it would be a competitive process. This program should not be competitive, but be based on needs. For as long as the ICWA has been around, we have not had a program in operation to protect our children in the Ahtna Region.
July, 1992 Hearing in Fairbanks (Testimony of Lorraine Jackson).
Flexibility in use of program funding was another concern of Jackson.
[W]e are not allowed to reprogram this money [state mental health money] to better suit the local needs. Community-based programs seems to be more effective, because it is based on what the community needs to help solve their problems, it will encourage the villages to take the responsibility. Every village has different views and ways to pursue their goals. [D]istribution of the funds should be based on needs and not be competitive or based on population.
Id. (Testimony of Lorraine Jackson).
Ms. Jackson's sentiments were echoed by Jerry Isaac, Chairman of the Tanacross Village hiring council, who noted: "We-have problems that are forever dogging us due to the size of the tribe and the land jurisdiction, which causes lack of funds on a per capita basis." July, 1992 Hearing in Fairbanks (Testimony of Jerry Issac).
Innovative avenues for achieving financial rewards were suggested by several witnesses as, for example, Fred Simpson, who described the only fish buying and minority fish company in the United States with potential contracts from the Armed Forces, hospitals, prisons and schools. Klawock Hearing (Testimony of James Simpson).
Robert Willard, former president of the Tlingit and Haida Contractors Association, explained how tribal units could benefit from forthcoming housing projects if the purchasing process was arranged so that jobs and money was recirculated into the communities:
[T]he mistake we made was that we did not build a rural economy in the process of development of housing. [O]nce construction begins, you need to establish rural franchise dealerships in the local area, owned and operated by rural people ...Had we foresight in the days that we were building those houses, we would have provided sufficient capital for someone in rural areas to build those houses that we planned...
Under a franchise dealership, we would have been able to buy 454 refrigerators from that dealer, we would have been able to buy refrigerators, stoves, that sort of fixtures, furniture, windows, doors from that rural dealer, instead of shipping it in from Seattle. That was the mistake that we made in the Housing Authority housing project.
Hearing in Klawock (Testimony of Robert Willard).
Willard also stressed the need to restrict local hire to rural locales and to gear education to emerging rural economies so that homegrown specialists could be produced:
You need to set up a rural local hire law ...strong enough to withstand any lawsuit filed by union locals ...If you want strictly Alaska hire, you would end up with 50 to 60 imported, as we did in the Housing Authority Project ...Perhaps you designate that area as an economic depressed area and get away with rural local hire.
Alfrieda Lord of Barrow stressed the need for tribal based preferences for employment to assure that local residents were, in fact, the recipients of jobs under local hire. October 16 Governance Hearings in Anchorage. In this respect, federal agencies and the Congress should review the implementation of existing hiring and contracting preferences under federal law as a means of indirectly influencing the financial base of Native village governments.
Along with strong efforts to de colonize rural Alaska, was the widely held belief that the tribe and not competing entities could advance the economic well-being of indigenous peoples. .
Anything to do with water and fishing rights should be left up to the tribal elders council to decide, not the state and federal government, for us as a tribe to be successful, competitive Haida tribe in fisheries as history foretells. The Haida's proud of the ocean and the sea, so we have the aboriginal entitlements and rights ...[wje wouldn't have to beg the federal or state government for moneys that belong to us, for the state and federal government have been taking our resources since they come into our lands...We, as a tribe should be getting dollar value instead of a percentage from the Fish and Game management, so that the tribe can profit, not the federal or state Fish and Game management, to provide services for our own economic need, health and welfare, education and business management."
Klawock hearing (excerpts) (Testimony of Becky Frank, Hydaburg, speaking in Haida).
F. Structure of Native, governments--
Congress and the State should allow Native communities to change and restructure their governments with a minimum of federal standards and state influence sufficient only to ensure the relative fairness of the process.
This recommendation recognizes that the failure to establish ground rules in the relationship encourages destructive institutional conflict within Native communities.
"[M]y big concern is having three, four five governments within the small community and-- for an example in Akiak, you know, our community is split, and we're having family wars, and, you know, we have hard feelings-political hard feelings to our own family members; and we're fighting amongst ourselves ...[B]efore the arrival of different forms of govemment,...our people handled [problems] well regardless if it's domestic, or criminal or whatever issue, I think it was dealt with."
October 16 Governance Hearings (Testimony of Mike Williams).
[T]he state is still trying to force the village to use the state government as
a governance organization-but the village has converted back to the elder's council as a governing body. And it has worked very well for us because things that were becoming major problems, were taken care of."
Hearings of the Alaska Natives Commission Task Force on Governance in Connection With a Hearing on Governance Issues and Solutions at Anchorage Alaska, January 26, 1993, (Testimony of Charlie Kairaiuak of Chefornak, citing specific tribal initiatives in elimination of drinking and promotion of economic development).
[T]here's a lot of confusion as to who the real governing bodies are by those people that are dealing with those villages ...But in some villages, its very, very clear who they have chose to be their governing body. In my village, it is very clear to the people that the governing body is the elder's council …so instead of making an assessment from a far-off distance like Anchorage or Juneau, the Commission should make effort to find out which governing body that is recognized by that village.
Id. (Testimony of Charlie Kairaiuak).
A persistent theme of witnesses was their frustration in grappling with local and regional problems because of the rural populations' inability to select for itself a structure of local government best suited both to local problem solving and cooperative working relationships with the state. Citing the historical flow of liquor into his area and the inability of state law to curb it, witness Mike Williams, Vice chairman of the Akiak IRA Council, remarked:
[I]f we had a regional tribal government, and everybody voted to ban that, then we would have that authority to do so; but right now, as it stands, we cannot do that; and you know, those are the issues that we're dealing with right now."
October 16 Governance Hearings in Anchorage.
Given the fact that they basically represent the same constituents, witness Willie Kasayulie advocated that three competing entities at the village level (state municipalities, tribes and ANCSA corporations) give way to a single tribal government charged with civil and criminal jurisdiction as well as resource management with regional jurisdiction. October 16 Governance Hearings in Anchorage.
However, the task force also heard descriptions of nonprofit regional corporations who, armed with resolutions of support from village tribes, draw on federal and state dollars to create health and social service programs that reflect the special regional needs of the population. See for example, Hearings, Alaska Natives Commission, Governance Task Force Meeting in Anchorage, Alaska, January 26, 1993, (Testimony of Katherine Grosdidier, Southcentral Foundation and Testimony of Orie Williams Yukon Kuskokwim Health corporation).
Nonprofits appear confident that they can improve upon programs offered by the state and federal government in earlier times and are better attuned to village needs and aspirations. Other witnesses from regional non-profits were more blunt in their assessment of the root causes of village problems they addressed through programs that targeted symptoms:
In our villages, we have unemployment of 80 and 90 percent and they call it "too bad"...We wonder why we're spending so much on suicide and substance abuse and changing roles of the male and the changing
evolutionary process of the culture. But just the recognition of the existing conditions--if you recognize that unemployment was 80 percent, then you'd have to recognize, I guess, how people survive. And if people survive off the land and survive by eating natural foods, natural fish and game in quantities it takes to survive, then you'd have to recognize that as an economy. And then maybe you'd have to get away from the word "subsistence" and just call it a lifestyle and give rights to that fish and game.
January 26, 1993, Governance Hearings in Anchorage (Testimony of Orie Williams).
As the foregoing indicates, the personnel of the regional non-profits often recognize that the very programs they administer are often removed from an appreciation of village realities. Thus re-empowerment of local tribes through acknowledgment of their sovereignty, a position uniformly taken by witnesses of non-profits, could also mean a more carefully modulated use of funds in the region to deal with problems as defined by the villages in close association with regional managers. In addition, tribal re-empowerment could mean that the root causes of problems, such as unemployment, could be addressed at the local and regional level thus freeing up state and federal funds now employed to deal with the symptoms of unemployment.
Witnesses decried both the extinguishment of aboriginal hunting and fishing rights See testimony of Mary Ann Mills, October 16 Governance Hearings in Anchorage) and the failure to obtain tribal consent for the extinguishment of aboriginal title under the claims settlement act. They described the complex web of special purpose tribes defined in acts of Congress drafted for the purpose of providing funds and services to Alaska Natives. Given the confusion, some advocated the approach employed in other countries like Canada with the core attributes of tribal authority entrenched in the national constitution and thus rendered distinct and protected from more ephemeral statutory vehicles. See testimony of' Mary Ann Mills, id.; and Testimony of Dalee Sambo, October 16 Governance Hearings in Anchorage. Both cited the Canadian example.
G. Federal Policies & Laws--
Congress and the State should maximize Native control over all aspects of statutory program delivery including determining the need for and content of the services.
Joe Upicksoun, President of the Arctic Slope Native Association, summarized the first annual meeting of ASNA held in twenty years, conducted the night .before the Barrow regional public hearing:
[T]hey talked about control of decisions about land and their own children. Their lives are complex, but their issues are simple. Central to these needs is that the federal and state government recognize and honor the special relationship of the federal government to the indigenous people of the Arctic Slope. Despite the vitality of our borough government and our profit-making regional and village ANCSA corporations, it is our traditional relationship to our village governments that is the core of our personal and cultural strengths...
Although there are many specific examples we could give of ways you could encourage self-determination, most critical is the full protection of rights to subsistence...[W]e recommend that this Commission urge Congress to enlarge the subsistence protections of federal law to reach all Alaskan lands.
No matter how modern our lifestyle may appear, subsistence is central to our being. Our celebrations, our language, our very lives are made strong by our tie to our land and the fish and animals who share it with us.
Barrow Hearings (Prepared testimony of Joseph Upicksoun, President, Arctic Slope Regional Association, see Exhibit, February 24, 1993).
Witnesses assured the Commission that tribes would not go away and that the state would, sooner or later, need to deal with them in areas like criminal jurisdiction.
Public Law 280 allows the state to handle criminal law and jurisdiction in the communities; but I feel that the law needs to be reevaluated for Alaska; and one of the things that I would like to see, as far as Alaska is concerned is to look at how the other states in Lower 48 deal with their tribes...because tribal governments are not going to go away. We'll still be here, despite the efforts to establish state-charter governments.
October 16 Governance Hearings in Anchorage (Testimony of Willie Kasayulie).
Witnesses at the Barrow Hearing strongly endorsed co-management between the federal government and the North Slope Borough or other local entities directly involved in the subsistence way of life. Barrow Hearing (Testimony of Jeshe Kaleak, Mayor of the North Slope Borough). Kaleak stressed that this implied "all local communities or governments need to be involved in planning from the beginning of any project, not after a draft plan is out." Id. "...[T]he local experts, my fellow Native people, are not listened to at all during the planning process. We always get involved after everything's planned out, after everything is written down on paper." Id.
Barrow witness Eugene Brower recommended that the Commission recommend detachment of the whaling issue from the International Whaling Commission:
Basically ...these 4,000 plus Natives (of the Arctic Slope) are spending their own money through the Regional governments to do the scientific study ...The North Slope Borough hires these scientists to do the work which is submitted to IWC which is under a lot of scrutiny. We have been the most scrutinized people on the issue of the bowhead. What we say has to be proven in scientific words or documented on a piece of paper, saying this is the truth, instead of taking our word for it. That's the hard part.
Barrow Hearings (Testimony of Charles Brower).
However, other witnesses saw the working arrangement with the IWC as an example of future co-management arrangements with other governments. (See Recommendation C.)
Not only did witnesses relate experiences with co-management as the key to the direction that new federal policies should take, but also observed that the interrelationship between cash and subsistence economies was often not appreciated as the fulcrum of village economic life. The former general manager of the Unalakleet Native Corporation and manager of a general store in that community attempted to explain this interrelationship:
I can tell you that while we did $1 million of business in selling groceries in that community of 800 people, it was not because they had cash that they could survive; it was because they had subsistence opportunities in their community to get seals, whales, fish, trout, ducks, geese, moose, that they were able to survive at least at a standard level, or a level better than
what they were used to. It was not because the groceries could get in on Mark Air every night, and if that was all that was available to them, they would not have been able to survive in that community. Me, as a General Manager, recognized that over 60 percent of that economy was probably subsistence.
July 1992 Hearing in Fairbanks (Testimony of Chuck Akers).
Many informants returned to the hearings leading up to the passage of the Alaska National Interest Lands and Conservation Act and recommended that the Commission revisit the Congressional findings that a subsistence priority was essential to Native well-being along with a Native preference on Native owned lands.
Please ask Congress to make ANILCA consistent with the findings that Congress has already made, and extend the priority or protection for subsistence management to Native-owned lands which were primarily selected in reliance on the idea they would be protected.
July 1992 Hearings in Fairbanks (Testimony of Paul Tony).
Often the approach to program implementation was viewed as significant as the program afforded villagers.
Experts coming from outside the village keep villagers dependent on the skill from someone else, so that local skills and leadership are not developed. Money given directly to a family can keep families dependent on someone else for their livelihood, or can be used to exacerbate other problems. The Athabascan value of self-sufficiency can easily become lost in the good intentions of people outside the village trying to help.
[I] strongly believe that dollars and services must be committed where the problems are experienced--in the village. Dollars and social workers in the village ...training dollars to train village tribal members to become paraprofessionals and to become social workers ...social workers from the village helping their tribal members and families working together, watching out for and caring for their families. Villages making their own decisions for the care and best interests of their families and children; empowering tribes, empowering families.
July 1992 Hearing in Fairbanks (Testimony of Don Shircel, director of Family Services for the Tanana Chiefs Conference).
The same theme resonated through the prepared testimony of Eileen Rozenivkoff:
Welfare programs need to be changed into employment programs for able bodied recipients: Economic development that takes into consideration the traditions and subsistence lifestyle of tribal communities must be developed. Strong management trainee programs need to be a part of the economic development.
July 1992 Hearing in Fairbanks (Submitted testimony of Eileen Kozenivkoff).
Persistent dismay at seemingly arbitrary and nonproductive subsistence regulation resonated throughout the testimony:
I always helped put up subsistence. I put up dried fish; I put up smoked fish; I put up salt deer, or salt meat; I put up salt bellies. These were the things that helped us through the winter...[A] slap in the face is what the government is doing to us. They're giving us a permit and saying: "Here's a permit that you ...can go out and catch this many fish."
I think that's wrong. Before, when the people went out there and fished, they went out there and caught what they needed at one time. They didn't catch ten fish at a time to take home and dry and then go back out and catch ten more fish. That's wasting our time, and wasting your time and the government's time. You know it always happens ...they always take something from us; and they always replace it with a: "You have to get permission from us."
Hearing at Klawock (Testimony of James Martinez).
Continuing problems with the subsistence provisions of ANILCA caught the attention of many witnesses: With respect to the provision on "Customary and traditional use," the President of the local ANB Juneau Camp Number 2 told the Commission:
To me, it doesn't make a difference where we reside, whether we reside in the small community or the urban community. So, as a result, we practice our culture in traditional [ways]. [W]e need the resources like anybody else in the community.
Klawock Hearing (Testimony of Alfred McKinley, Sr.)
I feel that the subsistence status quo of our people is of great concern to, not only people in Angoon, but people all over the region, people all over Alaska. And the state is not in compliance with ANILCA. I feel that the alternatives that they place before us and ask us to choose from do not meet the needs of our cultures.
Klawock hearing (Testimony of Gilbert Charles Fred ).
Many witnesses, including Fred, recognized the strong interconnection between local economies and outside resource allocators in an increasingly complex management system. Fred for example, pressed for Native representation on the North Pacific Fisheries Management Council.
I feel that although we only utilize four percent of the natural resources out there available as subsistence users, I feel that we are not having the impact on our resources that the developmental organizations and businesses, and processing plants have on the environment and the resources. I feel that the four percent of us that utilize these resources don't have the impact ...and we're still being denied these rights.
Id. (Testimony of Gilbert Fred).
Thus a new initiative for sovereign control of the traditional subsistence domain will involve extensions of tribal authority into regulatory arenas beyond the land base of the tribal government, both to protect tribal interests and the environment from depredations of other powerful, non-Native actors.