I. Introduction

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:

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":

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:

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 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:

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:

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:

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:

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:

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):

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:

1. protecting Native lands and resources;
2. providing human services;
3. protecting subsistence values; and,

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:

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:

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:

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:

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:

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:

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:

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:

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

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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;

ii: Non-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

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:

Alaska Natives Commission Hearing at Klawock, Alaska, October 24. 1992, (Testimony of Gilbert Charles Fred) .

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:

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:

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:

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

Testimony

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 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

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:

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:

July 1992 Hearing in Fairbanks (Testimony of Shirley Lee).

B. Indian Country--

Witnesses could cite from memory the scope of their traditional territory.

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:

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--

Witnesses in Kotzebue, focused on the absence of ownership or control by Alaska Natives of lands on which they depend.

Alaska Natives Commission Hearings at Kotzebue, Alaska, October 2, 1993, (Testimony of Ian Erlich).

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:

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.

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:

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:

D. Authority--