Indian Country and Inherent Tribal Authority: Will They Survive Ancsa?

• Jurisdiction: United States,Federal,Alaska
• Publication year: 1997
• Citation: Vol. 14

§ 14 Alaska L. Rev. 443. INDIAN COUNTRY AND INHERENT TRIBAL AUTHORITY: WILL THEY SURVIVE ANCSA?

Alaska Law Review
Volume 14
Cited: 14 Alaska L. Rev. 443

INDIAN COUNTRY AND INHERENT TRIBAL AUTHORITY: WILL THEY SURVIVE ANCSA?

MARILYN J. WARD FORD ^[*]

I. INTRODUCTION

II. ANCSA AND SETTLEMENT OF ABORIGINAL LAND CLAIMS

A. Status of Aboriginal Land Rights Prior to ANCSA

B. Status of Native American Land Rights After ANCSA

III. THE EFFECT OF ANCSA ON INDIAN COUNTRY AND INHERENT TRIBAL AUTHORITY IN ALASKA

A. The Ninth Circuit's Decision in the Venetie Litigation

B. Legislative and Judicial Determination of Indian Country

C. Legislative and Judicial Recognition of Inherent Tribal Sovereignty

IV. PROJECTIONS AND IMPLICATIONS OF THE PENDING VENETIE DECISION

A. Venetie: What the Supreme Court Should Find

B. Venetie: What It Really Means

V. CONCLUSION

FOOTNOTES

This Article analyzes the effect of the Alaska Native Claims Settlement Act ("ANCSA") on the existence of Indian country and inherent tribal authority in Alaska. The Article first presents a history of the status of Native Alaskan land rights and then discusses the importance of Indian country and tribal sovereignty to Native Alaskans. Next, the Article provides a summary of the Ninth Circuit's decision in Alaska ex rel. Yukon Flats School District v. Native Village of Venetie Tribal Government (Venetie II) as well as an overview of legislative history and judicial precedent traditionally applied to determine the existence of Indian country and inherent tribal sovereignty. Finally, the Article urges the United States Supreme Court to uphold the decision in the Venetie II case by demonstrating that ANCSA did not extinguish Indian country or inherent tribal sovereignty for the Venetie tribe.

I. INTRODUCTION

With the delegates standing motionless and quiet the President said, "I want you to be among the first to know that I have signed the Alaska Native Claims Settlement Act."

After the President finished his statement there was applause and the delegates started congratulating each other. Attendants at the meeting were overjoyed, and most delegates viewed ANCSA as a victory for their people.

Like many other delegates, I thought ANCSA would bring land and money to our people, and that it would provide a means to improve the living conditions of a people basically living in poverty.

ANCSA did not provide wealth, land, or improvement in the lifestyles of Alaska Natives. It instead divided Alaska Natives, placed their lands and culture in jeopardy, and only brought worthwhile wealth and benefit to corporate consultants, lawyers, [*pg 444] managers, employees, and directors.

ANCSA was an Act of deception. An Act destined for failure. An Act designed to assimilate Alaska Natives into the mainstream of American society. ^[1]

When the Alaska Native Claims Settlement Act ("ANCSA") ^[2] was enacted in December 1971, many Alaska Natives and their leaders celebrated. ^[3] They believed ANCSA was an "innovative and wide-ranging Act, designed to empower and enrich Alaska Native Peoples," preserve and protect their ancestral lands and culture, and assure their self determination. ^[4] They thought the Act finally would provide the protection they sought for their Native lands, subsistence way of life, heritage, and culture. ^[5] Most Alaska Natives viewed ANCSA as a "real victory." ^[6]

But almost three decades after its enactment, many Alaska Natives now believe that rather than a victory, ANCSA was merely an "act of deception." ^[7] They argue that the Act destroyed their title to ancestral lands; created a complex corporate scheme in which corporations own, manage, and control their ancestral land; divided their communities; jeopardized their culture; and effectively relegated them to second-class citizens. ^[8]

While Alaska Native concerns with ANCSA are numerous, a recent Ninth Circuit decision has allayed some of these concerns. In Alaska ex rel. Yukon Flats School District v. Native Village of Venetie Tribal Government (Venetie II), ^[9] the Ninth Circuit held that ANCSA did not extinguish Indian country in Alaska. The existence of Indian country has important implications for Alaska Native tribes in that it would allow them to maintain significant inherent authority.

This article will discuss ANCSA and its recent interpretation in Venetie II. Part II describes the land rights of Alaska Natives both before and after ANCSA. Part III defines Indian country and inherent tribal sovereignty, presents the Ninth Circuit's analysis in Venetie II, and provides an overview of the legislative and judicial history of Indian country and inherent tribal sovereignty. Part IV [*pg 445] argues that the United States Supreme Court should uphold the Venetie II decision on the basis that ANCSA did not extinguish Indian country and inherent tribal sovereignty in Alaska, and that the decision is narrowly tailored to apply only to the Venetie tribe.

II. ANCSA AND SETTLEMENT OF ABORIGINAL LAND CLAIMS

Congress adopted ANCSA in 1971 to resolve controversies regarding the use, possession, and ownership of Alaska's aboriginal land and abundant resources. ^[10] Prior to the adoption of ANCSA, Alaska Natives possessed, used, occupied, and claimed Alaskan territory as their ancestral land. ^[11] This land played, and continues to play, a crucial role in the traditional subsistence lifestyle of Alaska Natives. Alaska Natives have always lived on resources taken from Alaska's land and waters, which provide them with "an abundance of fish, wildlife, and edible plants for subsistence." ^[12]

A. Status of Aboriginal Land Rights Prior to ANCSA Prior to ANCSA, many issues regarding the rights of Alaska Natives to their aboriginal lands were unclear or unresolved. The Treaty Concerning the Cession of Russian Possessions in North America, ^[13] which, in 1867, transferred power over Alaska from [*pg 446] Russian to American control, acknowledged aboriginal land rights of Alaska Natives but failed to define them. ^[14] The legal rights of Alaska Natives again were left undefined in the Organic Act of 1884, ^[15] which established a civil government for the Alaskan territory. In fact, section 8 of the Organic Act specifically postponed resolution of the issue and reserved it for future action by Congress. ^[16] The Alaska Native Allotment Act of 1906 ^[17] provided for the allotment of homesteads of up to 160 acres of non-mineral land. However, it also failed to resolve the issue of Alaska Native land claims. ^[18]

The Alaska Statehood Act of 1958 ^[19] acknowledged that Alaska Natives had claims to the land, but again did not resolve the issue of their rights. The Statehood Act directed the government of Alaska to select 102,500,000 acres of federal lands that were "vacant, unappropriated, and unreserved at the time of their selection." ^[20] However, the Statehood Act disclaimed any right or title to "any lands or other property . . . the right or title to which may be held by any Indians, Eskimos, or Aleuts . . . or is held by the United States in trust for said natives." ^[21] Despite the fact that the Act acknowledged Alaska Natives' rights to lands used and oc- [*pg 447] cupied by them, it provided no definition or criteria for such use or occupancy. ^[22]

Alaska Natives protested the early selections made by the State of Alaska under the Statehood Act. ^[23] They felt threatened with the loss of their ancestral lands when the state began to select lands near their villages. ^[24] In fact, the "potential loss of lands near Native [c]ommunities was the issue that brought Natives together, and it was what led to the formation of Native organizations throughout the state." ^[25] Thus newly organized, Alaska Natives "publicly advocated a settlement that would protect aboriginal rights, preserve Alaska Native culture, and bring self determination to Alaska Natives." ^[26]

As part of their protest, Alaska Natives claimed aboriginal title to almost all 365,000,000 acres of the state. ^[27] In order to claim title to this land, Alaska Natives filed claims with the Department of the Interior. ^[28] In 1967, the Secretary of the Interior imposed a moratorium, or "land freeze," on the transfer of title to public land to the State of Alaska until the issue of native land claims was resolved. ^[29] [*pg 448]

B. Status of Native American Land Rights After ANCSA The desire to end the Department of the Interior-imposed land freeze, the 1969 discovery of oil in Prudhoe Bay, and the possibility of earning substantial profits from the construction of the Trans-Alaska Pipeline were all significant factors in influencing Congress to adopt ANCSA in 1971. ^[30] Oil companies were extremely anxious to commence oil drilling operations in order to extract the "black gold" found in Alaska, but they declined to do so until Native claims to the land had been extinguished. ^[31] Increased pressure from the oil companies to resolve the outstanding land claims and to expedite the commencement of oil drilling operations clearly contributed to ANCSA's adoption. ^[32]

In theory, Congress adopted the legislation to effectuate a "fair and just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims" ^[33] and to resolve the issues regarding the legal rights of 80,000 Alaska Natives to the land they used and occupied and to which they...