A Comity of Errors: Why John v. Baker Is Only a Tentative First Step in the Right Direction

• Publication year: 2001

§ 18 Alaska L. Rev. 1. A COMITY OF ERRORS: WHY JOHN V. BAKER IS ONLY A TENTATIVE FIRST STEP IN THE RIGHT DIRECTION

Alaska Law Review
Volume 18
Cited: 18 Alaska L. Rev. 1

A COMITY OF ERRORS: WHY JOHN V. BAKER IS ONLY A TENTATIVE FIRST STEP IN THE RIGHT DIRECTION

CARL H. JOHNSON ^[*]

I. INTRODUCTION

II. THE FOUNDATION FOR TRIBAL SOVEREIGNTY IN ALASKA: A CENTURY OF RECOGNITION BY CONGRESS

III. JOHN V. BAKER : MEMBER-BASED JURISDICTION AND THE COMITY SOLUTION

A. Applicability of ICWA and Public Law 280 to the John v. Baker Case

B. Post-Venetie Alaska: Endorsing Member-Based Jurisdiction of Tribal Courts

C. Choosing Between Full Faith and Credit Recognition and Comity

IV. FULL FAITH AND CREDIT AND THE UNEQUIVOCAL RECOGNITION OF TRIBES AS JURISPRUDENTIAL PARTNERS IN ALASKA

A. Standing on a Shaky Foundation: The Weaknesses of the John v. Baker Decision

B. Bright Spots in the Alaska Supreme Court's Decision: Acknowledging Member-Based Jurisdiction for Tribal Courts in Alaska

C. Full Faith and Credit as a Mechanism for Furthering Justice in Alaska's Rural Communities

D. Recognition of Sovereignty Requires More than Concurrent Jurisdiction over Domestic and Internal Disputes

V. CONCLUSION

FOOTNOTES

This Article examines the role of tribal courts in the administration of justice in rural Alaska. This Article begins by describing the relationship between Native tribes in the Lower Forty-Eight and the U.S. government, and continues by contextualizing and comparing this relationship with the relationship between Alaska Native tribes and the State of Alaska. The Article progresses by providing an overview and analysis of the comity solution articulated in the recent John v. Baker decision, and continues by acknowledging that, although the decision is an important step in recognizing tribal sovereignty, it fails to create a coherent partnership between Alaska tribal courts and the Alaska court system. The author concludes by proposing that Alaska's administration of justice would be better served by replacing John v. Baker's comity solution with full faith and credit recognition of tribal court decisions.

I. INTRODUCTION

I have heard talk and talk, but nothing is done. Good words do not last long unless they amount to something.

[*pg 2]

I am tired of talk that comes to nothing.

It makes my heart sick when I remember all the good words and broken promises.

There has been too much talking by men who had no right to talk. Too many misrepresentations have been made; too many misunderstandings have come up. . . .

When the white man treats an Indian as they treat each other, then we will have no more wars. We shall all be alike -- brothers of one father and one mother, with one sky above us and one government for all.

-- Chief Joseph, Nez Perce (1879) ^[1]

Ever since the infancy of this Union, the federal government and the many states have attempted to interpret, understand, and shape their relations with the many tribes that were the original sovereigns of this continent. ^[2] Originally, the Founding Fathers sought to treat the Indian tribes as sovereigns over which the federal government held exclusive authority to shape relations with the United States. ^[3] Aside from the few guidelines established in the Constitution, ^[4] the Framers gave little thought as to how relations with the Indian tribes might develop. ^[5]

[*pg 3]

Beginning in the late eighteenth century and continuing for most of the nineteenth century, Congress established that the treaty process would be the exclusive means for developing relationships with the Indian tribes and nations. ^[6] As white settlers continued to push westward and demand more access to land and resources, conflicts and treaties between the federal government and the Indian tribes became more frequent. On March 3, 1871, the [*pg 4] treaty process ended. ^[7] It was only four years prior to the termination of that phase in federal Indian policy that the United States purchased the Alaska territory from the occupying Russian government. ^[8] Because of this short time frame, the indigenous peoples of Alaska never entered into any treaties with the United States. ^[9] The principles of federal Indian law that developed regarding the tribes of the Lower Forty-Eight seemed inapplicable to the Natives of Alaska. ^[10]

Nothing in the history surrounding the treaty process indicates that Congress or the President considered tribes in Alaska to be [*pg 5] fundamentally distinct from those in the rest of the nation. ^[11] The need for treaties simply did not arise until the first major gold discovery in the new territory, near Juneau, in 1880. ^[12] This lack of a treaty relationship is the basic legal distinction between the tribes of Alaska and those in the Lower Forty-Eight. ^[13] Some have suggested that because Alaska Native villages organized their leadership differently than Lower Forty-Eight tribes, they should not be treated like outside tribes. ^[14] This oversimplification ignores the reality that tribes in Alaska have always shared the same goals of achieving self-government and enforcing the guarantees on their rights to use their land as do tribes of the Lower Forty-Eight. ^[15]

[*pg 6]

Alaska Native groups have endured a long history of legal disparity as a result of this difference. In 1955, the U.S. Supreme Court declared that natural resources taken from Alaska Native lands were not entitled to compensation. ^[16] The Court commented that case law consistently found that absent some explicit recognition by Congress for some possessory right, no compensation was required when Indian country was taken. ^[17] The Court added that, as "[e]very American schoolboy knows," all Indians, including Alaska Natives, were deprived of their lands by being conquered by American troops, not through treaties. ^[18]

Following the passage of the Alaska Native Claims Settlement Act ("ANCSA") in 1971, ^[19] courts and commentators were divided about the status of tribal sovereignty or Indian country in Alaska. ^[20] [*pg 7] Seeking to clarify the issue, the Department of the Interior, and later, Congress declared the inherent sovereignty of tribes in Alaska and their status as federally recognized tribes. ^[21] Despite this declaration, state courts continue to deny the sovereign status of tribes in Alaska. ^[22] This deviates substantially from the well-established principle that recognition of tribal governments is a non-justiciable political question that Congress and the executive branch should settle. ^[23]

Prior to its decision in John v. Baker, ^[24] the Alaska Supreme Court consistently had rejected the notion of tribal sovereignty in Alaska with the exception of one tribe that occupied reservation lands in the Southeast. ^[25] In Metlakatla Indian Community, Annette Island Reserve v. Egan, ^[26] the court held that because of the lack of a treaty relationship between the federal government and Alaska's [*pg 8] tribes, "[t]here are not now and never have been tribes of Indians in Alaska as that term is used in federal Indian law." ^[27]

In its 1988 decision Native Village of Stevens v. Alaska Management and Planning, ^[28] the court pronounced that most Native groups in Alaska were "not self-governing or in any meaningful sense sovereign." ^[29] The Stevens court added that even if the federal government treats a Native village as a tribe, for example, through implementing a tribal constitution under the Indian Reorganization Act, ^[30] this treatment does not afford a village tribal status. ^[31] The dissent noted, however, that it was up to Congress to waive a tribe's sovereign immunity, not the courts. ^[32]

[*pg 9] With the notable exception of Governor Cowper's short-lived order recognizing tribal sovereignty in 1990, the executive branch of Alaska also has a history of refusing to recognize tribal sovereignty. ^[33] In 1969, the Republican administration was steadfastly opposed to the land settlement and compensation demands that were made during the ANCSA development process. ^[34] As recently as 1991, the State of Alaska refused to recognize Native Alaskan communities as Native American tribes ^[35] and no formal means of communication existed between the two groups. ^[36]

This opposition to the exercise of tribal sovereignty in Alaska came to a head in 1986 when the State challenged the authority of the Village of Venetie Tribal Government to tax business activities in which the State was a joint venture partner on land acquired through ANCSA. ^[37] Although the district court found that ANCSA had extinguished Indian country, the Ninth Circuit, utilizing a multi-factor approach, reversed. ^[38] The U.S. Supreme Court rejected the Ninth Circuit's multi-factor and instead implemented a narrower two-factor approach, eventually concluding that lands transferred to Native villages under ANCSA do not constitute Indian country as defined in 18 U.S.C. 1151(b). ^[39]

In 1999, Governor Tony Knowles invited tribal representatives to meet with state cabinet members to negotiate an accord, on a [*pg 10] government-to-government basis, regarding the relationship between tribal governments and state agencies. ^[40] In the months that followed the meeting, Governor Knowles and tribal leaders formed the State-Tribal Relations Team, ^[41] which ultimately led to the State's recognition of the inherent...