"indian Country" and the Nature and Scope of Tribal Self-government in Alaska

• Publication year: 2005

§ 22 Alaska L. Rev. 1. "INDIAN COUNTRY" AND THE NATURE AND SCOPE OF TRIBAL SELF-GOVERNMENT IN ALASKA

Alaska Law Review
Volume 22
Cited: 22 Alaska L. Rev. 1

"INDIAN COUNTRY" AND THE NATURE AND SCOPE OF TRIBAL SELF-GOVERNMENT IN ALASKA

Geoffrey D. Strommer and Stephen D. Osborne ^{[*] [**]}

I. INTRODUCTION: TRIBAL STATUS AND JURISDICTION AT A CROSSROADS

II. BASIS OF NATIVE SELF-GOVERNMENT AND JURISDICTION IN ALASKA

III. SCOPE OF NON-TERRITORIAL TRIBAL RIGHTS AND JURISDICTION IN ALASKA

IV. INDIAN COUNTRY IN ALASKA AT PRESENT

V. THE BENEFITS OF RESTORING INDIAN COUNTRY FOR RURAL JUSTICE IN ALASKA

VI. CONCLUSION

FOOTNOTES

Today Alaska Native tribes face one of their most difficult challenges since the days of the Alaska Native Claims Settlement Act (ANCSA). Ever since the United States Supreme Court ruled in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), that ANCSA largely extinguished "Indian country" in Alaska, and thus the tribes' territorial jurisdiction, the extent of Alaska tribal sovereignty and authority has been shrouded in uncertainty. In the context of a vigorous debate in which the extent and perhaps the very survival of Alaska tribal sovereignty is at stake, this Article offers: (1) an analysis of Alaska tribes' current jurisdiction, including areas of uncertainty due to their unique status as "sovereigns without territorial reach"; and (2) a range of proposals designed to resolve those uncertainties and anomalies by at least partially restoring the "Indian country" status of, and thus tribal territorial jurisdiction over, some tribal lands in Alaska. Using rural justice and law enforcement as a central example, the authors demonstrate that restoring Indian country to Alaska would promote numerous public policy objectives, benefiting both the tribes and the State.

[*pg 2]

I. INTRODUCTION: TRIBAL STATUS AND JURISDICTION AT A CROSSROADS

Rural Alaska is one of the most dangerous places to live in the United States, in large part because of an alarming lack of adequate law enforcement and justice services. ^[1] The state's federally recognized tribes, the governments with an actual physical presence in rural Alaska, have been hamstrung in their attempts to assist in providing these services by doubts concerning their criminal jurisdiction. We propose that Congress remove these doubts by restoring the "Indian country" status of Alaska tribal lands, making them subject to concurrent state and tribal jurisdiction. This would benefit all rural residents, Native and non-Native alike, by enabling better provision of law enforcement as well as other services. As this Article will make clear, tribal sovereignty is part of the solution to rural Alaska's problems, not the threat that some perceive.

A. The Assault on Alaska Tribal Sovereignty

Alaska tribes have reached a crossroads in their journey to protect their sovereignty and self-determination. In recent decades the tribes have been clearly recognized as sovereigns enjoying government-to-government relationships with the United States, like those of tribes in the lower 48 states, ^[2] but that status has been attacked for many years and continues to be threatened by several recent developments. The Secretary of the Interior's authority to recognize Alaska Native villages as tribes has been challenged legally and politically. ^[3] For instance, the State of Alaska recently has taken the position that Alaska tribes lack [*pg 3] inherent sovereign authority over child protection matters. ^[4] Additionally, Senator Ted Stevens, among others, has proposed that funding for programs and services for Alaska Natives be funneled through state agencies and large regional corporations rather than through tribes. ^[5] These developments threaten to make local tribal governments largely irrelevant to the provision of funding and services to Natives in Alaska, and severely undermine tribal self-determination and the government-to-government relationship of Alaska tribes to the United States.

Bedeviled by contradictory pronouncements on their jurisdictional authority, and besieged by assaults on their tribal status, Alaska tribes face the threat of being swallowed up in "regionalization," if not eliminated altogether. The regionalization debate has raised questions about the scope of tribal jurisdiction in Alaska, in which the territorial jurisdiction traditionally defined as "Indian country" is largely absent. ^[6] [*pg 4] This Article sketches the contours of Alaska tribal jurisdiction as it currently exists, points out areas of uncertainty, and proposes the reintroduction of a geographic component to Alaska tribal jurisdiction. Using rural justice and law enforcement as our central example, we argue that by (re)introducing "Indian country" in Alaska as a description of tribal territorial jurisdiction, Congress could eliminate many of the uncertainties that plague Alaska tribes, while improving the delivery of services to rural Alaskans, Native and non-Native alike.

B. A Brief History of Tribal Status in Alaska

The tribal status of Alaska Native Village governments was unclear and hotly contested during the years following passage of the Alaska Native Claims Settlement Act (ANCSA) in 1971. ^[7] Although Congress has consistently treated Alaska Native Villages as tribes for purposes of eligibility for federal programs and services, the State of Alaska and its courts resisted acknowledging the villages as tribes. For many years, the state opposed expansion of tribal governmental powers and the creation of Indian country under the motto "Alaska is one country, one people." ^[8] The state supreme court endorsed this view in Native Village of Stevens v. Alaska Management and Planning: ^[9] "There are not now and never have been tribes of Indians in Alaska as that term is used in federal Indian law." ^[10]

In 1993, however, the Solicitor for the Department of the Interior (DOI), Thomas Sansonetti, issued an opinion rejecting the notion that there were no tribes in Alaska. ^[11] Later that year, and consistent with the [*pg 5] Sansonetti opinion, the DOI issued a list of 226 villages and regional tribes in Alaska recognized and eligible to receive federal Indian Affairs services. ^[12] Congress effectively ratified that list by enacting the Federally Recognized Tribe List Act in 1994. ^[13] Finally, in 1999, the Alaska Supreme Court acknowledged the tribal status and sovereignty of Native Villages in John v. Baker. ^[14] Despite sporadic challenges, ^[15] the status of village governments as tribes appears well established in state and federal law. The extent and scope of Alaska tribes' sovereign authority is less settled, and provides the initial focus of this Article.

C. Venetie and Indian Country in Alaska

"Indian country," as defined by federal statute, means: (1) all land within the limits of a reservation, whether owned in fee or in trust; (2) "dependent Indian communities"; and (3) Indian allotments. ^[16] Although this definition derives from a criminal statute, the Supreme Court has found that it "generally applies as well to questions of civil jurisdiction." ^[17] ANCSA extinguished all the reservations in Alaska, with the exception of the Annette Islands Reserve of the Metlakatla Indian Community. While there are some 10,000 allotments in Alaska, these form only a small percentage of Native lands in the state, and their patchwork pattern prevents a coherent exercise of tribal jurisdiction.

The key question for many years was whether lands patented under ANCSA constituted "dependent Indian communities" within the meaning of the Indian country statute. The United States Supreme Court has interpreted this phrase to cover any "area . . . validly set apart for the use of Indians as such, under the superintendence of the Government." ^[18] Arguably, ANCSA lands fit this definition, and that is what the Ninth [*pg 6] Circuit held. ^[19] However, in Alaska v. Native Village of Venetie Tribal Government, ^[20] the United States Supreme Court reversed and held that lands transferred to private corporations pursuant to ANCSA satisfied neither the federal "set-aside" nor the federal "superintendence" requirement. ^[21] The lands were not set aside "for the use of Indians as such," but rather for private, state-chartered Native corporations. ^[22] Nor were the lands subject to sufficient federal superintendence; rather, ANCSA was intended to avoid a "lengthy wardship or trusteeship." ^[23] As a result, the Village's ANCSA lands did not qualify as "Indian country," even though the lands were subsequently conveyed to the Village government, and therefore the Village lacked authority to tax a non-Native business operating on those lands. ^[24]

Importantly, the Court also found that ANCSA did not intend to terminate tribal sovereignty, but that it left Alaska tribes "sovereigns without territorial reach." ^[25] While some Indian country may remain in Alaska (see part IV below), Venetie established that the territorial jurisdiction of Alaska tribes does not extend to the 45 million acres of land affected by ANCSA -- the vast majority of Native lands in Alaska.

Even outside Indian country, however, Alaska tribes may be able to exercise member-based jurisdiction and perhaps jurisdiction over non-members in specific instances. The next section examines the basis of Native self-government and inherent sovereign power over territory and members. Section III...