Alaska v. Native Village of Venetie: Statutory Construction or Judicial Usurpation? Why History Counts

• Citation: Vol. 14
• Publication year: 1997

§ 14 Alaska L. Rev. 353. ALASKA V. NATIVE VILLAGE OF VENETIE: STATUTORY CONSTRUCTION OR JUDICIAL USURPATION? WHY HISTORY COUNTS

Alaska Law Review
Volume 14
Cited: 14 Alaska L. Rev. 353

ALASKA V. NATIVE VILLAGE OF VENETIE: STATUTORY CONSTRUCTION OR JUDICIAL USURPATION? WHY HISTORY COUNTS

DONALD CRAIG MITCHELL ^[*]

I. INTRODUCTION

II. CONGRESS'S ALASKA NATIVE POLICY, 1867-1936

III. THE ALASKA AMENDMENTS TO THE INDIAN REORGANIZATION ACT AND THEIR IMPLEMENTATION, 1936-1950

IV. INDIAN COUNTRY IN ALASKA

A. The Revisers' Interpretation of the Intent of the 80th Congress Embodied in 18 U.S.C. 1151

B. The Department of the Interior's Interpretation of the Intent of the 80th Congress Embodied in 18 U.S.C. 1151

C. Indian Country and the Alaska Statehood Act

D. Indian Country and In re McCord

V. THE ALASKA NATIVE CLAIMS SETTLEMENT ACT

VI. THE ALASKA NATIVE SOVEREIGNTY MOVEMENT

VII. TRIBAL RECOGNITION

VIII. VENETIE I

A. Tribal Recognition

B. Indian Country

IX. VENETIE II AND INDIAN COUNTRY

X. CONCLUSION

FOOTNOTES

This Article conducts a thorough review of the legislative history determining the sovereignty status of Alaska Natives and the existence of "Indian country" in Alaska. The Article discusses congressional policies toward Alaska Natives from the time the Territory was first acquired up to the Alaska Native Claims Settlement Act Amendments passed by the 100th Congress. The Article highlights the various pieces of legislation that have influenced the sovereignty of Alaska Natives and the designation of "Indian country," and describes the congressional intent behind this legislation, the executive branch's application of this intent, and the judiciary's interpretation of this intent. The Article culminates in an analysis based on this legislative history of the Venetie I and II decisions and concludes that the Ninth Circuit has erred in finding the existence of Indian country in Alaska.

I. INTRODUCTION

[I]f you put one rock ahead of the other, pretty soon you're across the stream. And many people, in my view, who sense that sovereignty is a huge issue are doing just that. They're saying if this happened and if that happened and if that happened and if that happened we'll have sovereignty. ^[1]

On November 20, 1996 a three-judge panel of the United [*pg 354] States Court of Appeals for the Ninth Circuit issued Alaska ex rel. Yukon Flats School District v. Native Village of Venetie Tribal Government (Venetie II). ^[2] The facts underlying the dispute are unique. But if, as the prevailing counsel contends, the principles of law announced in Venetie II "apply to virtually all . . . Native villages," ^[3] the application of those principles throughout Alaska will have monumental, and potentially society-altering, consequences for the future of the State of Alaska as a cohesive polity.

In Venetie II, the circuit court first accepted the agreement of the parties (without deciding the question itself) that several hundred Gwich'in Indians who reside in two small villages located on the south side of the Brooks Mountain Range in north-central Alaska are a federally recognized Indian tribe whose governing body possesses inherent governmental authority. ^[4] The court then held that Congress intended 1.8 million acres of fee title land surrounding the villages to be an area occupied by a "dependent Indian community" and, hence, "Indian country," within which the Alaska State Legislature has no criminal or civil jurisdiction, except in exceptional circumstances or to the extent explicitly granted by Congress. ^[5]

The State of Alaska petitioned the United States Supreme Court for certiorari; the Court granted the petition and will review Venetie II during its 1997 term. ^[6] The outcome of that review will turn on the Court's answers to esoteric questions of statutory construction. But like every lawsuit, Venetie II has a context. And that context must be understood for the Venetie II decision and its potential import to be understood.

In brief, since the birth in 1983 of what in Alaska now is known as the Native sovereignty movement, the members of the movement and their attorneys have pursued an audacious objective: the realignment by agency action and judicial fiat of Con- [*pg 355] gress's relationship with Alaska Natives into a configuration that approximates Congress's relationship with members of federally recognized Indian tribes who reside on reservations in the coterminous states. Over the past fourteen years, the pursuit of that objective has involved the adroit exploitation of "pro-Indian" sentiment inside the Department of the Interior bureaucracy, a competently executed litigation strategy, and a purposeful rewriting of the history of Congress's Alaska Native policy. The purposes of this article are, first, to correct the misconceptions about that history on which the Venetie II court based its misconclusions of law, and, second, to describe the political process that culminated in the court's blithe acceptance of those misconceptions.

Parts II and III of this Article trace the early congressional policy and legislation concerning Alaska Natives. Part IV describes the evolution of the definition of "Indian country" and its application to Alaska by Congress, the Department of the Interior, and the courts. Part V discusses the legislative history and intent of the Alaska Native Claims Settlement Act ("ANCSA"), followed by Part VI's analysis of the influence of the Alaska native sovereignty movement on the interpretation of ANCSA. Part VII describes the evolving process by which tribal recognition by the executive and judicial branches has occurred over time. Finally, Parts VIII and IX apply the information presented in the previous parts to analyze the court's decisions in Venetie I and II.

II. CONGRESS'S ALASKA NATIVE POLICY, 1867-1936

The analysis of Congress's dealings with Native Americans begins with the Indian Commerce Clause of the United States Constitution, which grants Congress "Power . . . [t]o regulate [c]ommerce . . . with the Indian Tribes." ^[7] The clause grants Congress "plenary power to legislate in the field of Indian affairs." ^[8] In exercising that power, Congress may enact statutes that repudiate its earlier Indian policies, ^[9] as well as statutes whose policy objectives are inconsistent ^[10] or unjust. ^[11]

[*pg 356] Congress initially exercised its plenary power to legislate in the field of Indian affairs to accomplish a single objective: the compelled clearing of the public domain of the Native Americans who occupied it. Congress accomplished that objective, first by the Senate ratifying treaties that recognized particular Native American groups as political entities whose governing bodies were persuaded, and, when persuasion failed, were compelled, to cede their members' aboriginal title to vast tracts of land. ^[12]

Treaty-making opened the frontier for white settlement. But it did not physically clear the public domain of Native Americans. For that reason, in 1830 Congress delegated to the President the authority to relocate Native Americans who occupied land east of the Mississippi River to land located west of the river. ^[13] When in the 1840s large numbers of whites began settling west of the river, the President and the Senate began negotiating and ratifying treaties that compelled land cessions west of the river and established reservations for the members of tribes whose governing bodies made the cessions. ^[14] In 1871, Congress ordered the President to cease negotiating treaties. ^[15] But with Congress's approval, the President continued to negotiate land cessions and establish reservations. ^[16]

The army implemented Congress's removal and reservation policies with a facinorous ruthlessness ^[17] that continues to haunt the [*pg 357] United States government's dealings with the descendants of the Native Americans who were the objects of those policies. ^[18] However, Alaska Natives ^[19] were spared the common Native American fate.

In 1867, when Congress purchased Russian America from the czar, ^[20] Alaska (as the territory henceforth was known) was populated by several hundred Russians and thousands of Alaska Natives who lived a nomadic life that revolved around seasonal relocations that facilitated Native participation in hunting, fishing, and gathering. ^[21]

The Alaska purchase coincided by chance with the beginning of an historic change in the objectives of Congress's Indian policy. As a precursor to that change, Congress in 1849 increased civilian [*pg 358] participation in the implementation of Indian policy by moving the Bureau of Indian Affairs, which in 1824 had been established in the War Department, to the Department of the Interior. ^[22] In 1862, the Episcopal Church "proposed that a commission of citizens should be appointed to devise a better Indian policy." ^[23] And in 1869, Congress authorized the President to appoint "men eminent for their intelligence and philanthropy" to a Board of Indian Commissioners ^[24] that, until the Board was abolished in 1933, advised the Secretary of the Interior and Congress on Indian policy.

In 1869, Vincent Colyer, the secretary of the new Board of Indian Commissioners, visited Alaska. After doing so, he recommended that "[t]he wild [Alaska] tribes should . . . be placed upon [a] reservation." ^[25] Since not enough whites moved to Alaska...