A Revisionist History of Indian Country

CitationVol. 14
Publication year1997


Alaska Law Review
Volume 14
14 Alaska L. Rev. 283





A. The Original Bright Line of Sovereignty

B. Toward Indian Country Without Sovereignty


A. A Wrong Turn

B. Scholarly Misguidance

C. A Conflict of Authority

D. The Proper Test


A. Venetie II's Relaxed Standard

B. Venetie IRA: Toward Personal Sovereignty?



This Article argues that tribal sovereignty is not purely a question of federal intent, but rather also requires an affirmative cession of jurisdiction by the state. The Article traces the history of the Indian country concept and concludes that the current statute was never intented to create tribal sovereignty. It urges a return to the historical two-step test: federal set-aside of land and subsequent state consent. The Article contends that the use of the Indian country statute to recognize sovereignty is recent, that it directly conflicts with other United States Supreme Court standards for defining the scope of Indian government, and that it runs afoul of principles of state sovereignty. The Article finds that under the proper test, there is no tribal sovereignty in Alaska other than in Metlakatla. It concludes that the Venetie cases are merely a symptom of a current confusion in which the Indian sovereignty doctrine is degenerating into one based solely on ancestry.


During the eighteenth and nineteenth centuries, "Indian country" was coterminous with tribal sovereignty. In the late nineteenth century, however, assimilationist policies began to extinguish tribal governments across the nation. Yet at the same time, the United States Supreme Court was confronted with a set of federal protective laws that purported to apply to the "Indian country." Had the Court continued to define Indian country in jurisdic- [*pg 284] tional terms, it effectively would have repealed those statutes. Instead, in a series of early twentiethcentury decisions, the Supreme Court severed the definition of Indian country from tribal sovereignty and decided that it exists wherever there is a dependent Indian community. It stopped defining Indian country in terms of the exclusion of state law. These cases were codified in the federal criminal statutes in 1948.

Recently, courts have begun applying the 1948 definition of Indian country to recognize tribal sovereignty and preempt state jurisdiction. They are using the twentieth century test, but giving it a nineteenth century meaning. General confusion about Indian law, abetted by an authoritative treatise in this area, has led the courts to overlook critical changes made to the meaning of "Indian country" at the beginning of this century.

While the initial results of this misunderstanding were unremarkable, that has begun to change. Last year, the Ninth Circuit Court of Appeals embarked on a course of recognizing land held in fee by Native corporations in Alaska as sovereign Indian country. At issue is whether the state of Alaska has the right to apply its laws to more than forty million acres within its borders. In November 1996, a three-judge panel took the first bite: the Venetie II [1] decision declares that 1.8 million acres held in fee by the Natives of the Village of Venetie are part of a dependent Indian community, and are thus sovereign to the exclusion of state law.

Alaska's travails have their origins in the misadventures of one Pete McGowan. In 1937, the Ninth Circuit affirmed a trial court's dismissal of a prosecution of McGowan on charges of introducing liquor into Indian country. [2] The court accepted that McGowan had brought two bottles of whiskey to the Reno Indian Colony. The court found, however, that the colony could not possibly be Indian country, because it was not "'out of the jurisdiction of any state.'" [3] Since Nevada never had ceded its sovereignty over the place, its jurisdiction remained "'complete and perfect,'" [4] and the court could not "legislate and extend the criminal laws of the United States over the farm sites under the guise that they are [*pg 285] 'Indian country.'" [5]

The Supreme Court reversed. [6] In doing so, however, it dismissed only the "therefore" in the court of appeals' reasoning, not the "because." United States v. McGowan found that since the Reno Colony was a "dependent Indian community," it qualified as "Indian country" for the purposes of federal protective legislation. [7] However, the Supreme Court rejected the notion that the Indian country designation would limit the application of state law. [8] The unanimous Court declared that its Indian country finding

does not deprive the state of Nevada of its sovereignty over the area in question. The federal government does not assert exclusive jurisdiction within the colony. Enactments of the federal government passed to protect and guard its Indian wards only affect the operation, within the colony, of such state laws as conflict with the federal enactments. [9]

To establish its point, the McGowan Court cited two cases which emphasize that a state's laws apply throughout its borders unless it voluntarily has surrendered its jurisdiction. [10] The first, Surplus Trading v. Cook, [11] declares that absent an "affirmative cession of jurisdiction by the state, [a federal] reservation is part of her territory and within the field of operation of her laws." [12] The other, Hallowell v. United States, [13] holds that even when an area and its inhabitants are governed by state laws, the area can still be Indian country for purposes of federal Indian legislation. [14]

McGowan represents the culmination of more than one hundred years of efforts by the Supreme Court to draw the boundaries of Indian country. Much of the federal protective legislation for Indians applied only in "Indian country," but Congress had not defined that term since 1834. [15] Moreover, in the 1880s, the federal government began to break up tribal holdings and subject Indians to state law. [16] In response, the Supreme Court abandoned the notion that Indian country means sovereignty, no longer limiting that term to areas beyond the United States or to places where the states had ceded their jurisdiction. Instead, the Court held there is [*pg 286] Indian country wherever land has been set aside for Indians under federal superintendence. [17] This definition was codified in 1948 at 18 U.S.C. 1151.

In recent years, courts across the country have begun applying 18 U.S.C. 1151 to declare Indian communities beyond the reach of state law, even when there has been no affirmative cession of jurisdiction by the state. [18] Land outside of a reservation purchased by a tribe from private parties has been declared Indian country. [19] Even individual housing projects have been adjudicated Indian country. [20] While many of these courts were faced only with the application of federal laws, they all have assumed that the Indian country designation also works an exclusion of state law. [21]

Some courts, although seeing no alternative, have expressed reservations about preempting all state authority on the sole basis of 18 U.S.C. 1151. [22] However, the Ninth Circuit has embraced this new misunderstanding, pressing it to its logical extreme. At issue in last November's Venetie II case was whether a tribal council could impose a $160,000 "Business Activities Tax" on the State of Alaska for building a schoolhouse in the village. [23] While the court remanded the tax question, it had no difficulty concluding that an area roughly the size of Delaware is a sovereign nation that [*pg 287] is beyond the reach of state law. [24]

Not only does Venetie II stand at odds with the fact that Congress explicitly terminated the Venetie reservation in 1971, [25] the ruling also has the potential to disrupt seriously the enforcement of state law throughout a sizeable area of Alaska. Approximately forty-four million acres in the state are held by Native corporations as a result of the Alaska Native Claims Settlement Act of 1971 ("ANCSA"). [26] The Ninth Circuit's version of the "dependent Indian communities" test probably would allow almost all of this land to qualify as Indian country.

However, while the Ninth Circuit's new six-factor inquiry is more liberal than the test being applied in other circuits, it is not a radical departure. Rather, Venetie II represents the logical result of using 18 U.S.C. 1151 to create jurisdictional enclaves. By reading into the Indian country statute an effect that was never intended, the courts have been able to retract Alaska's sovereignty over almost two million acres that only twenty-five years earlier were placed under its authority by a federal enactment. [27] Venetie II demonstrates that when the test for tribal sovereignty is uncoupled from any requirement of a federal-state agreement to cede jurisdiction, it will produce results that are totally at odds with congressional intent and that substantially interfere with states' rights.

This Article argues that 18 U.S.C. 1151 was meant to define only the scope of federal laws that apply to Indian country. It was never intended to withdraw state authority or create...

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