Douglas Kemp Mertz
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Law Offices of Douglas Kemp Mertz |
Note: This article was written in 1991. Since that year there have been a number of important developments in Alaskan Native law which are not reflected here. The most important development is that the Department of the Interior Solicitor has listed almost all Alaskan Native villages on its list of federally recognized tribes, and the State of Alaska has declined to challenge this designation. Secondly, a panel of the U.S. Court of Appeals has held that the Native Village of Venetie constitutes Indian country despite the repeal of its status as a reservation in the Alaska Native Claims Settlement Act. That decision has been appealed to the U.S. Supreme Court, and a ruling is expected in the Spring of 1998.
Within the last decades rural Alaska Natives have experienced fundamental changes in their culture and in the institutions which affect their lives. In reaction to the changes, many Natives have asserted legal claims to the sovereign right to control their own communities and their own tribal members. These claims have broken new legal ground. Nowhere else in the United States have Native peoples made sustained claims to a right to self-governance outside of Indian reservations. This article attempts a brief overview of those sovereignty claims and of the major issues in the courts.
The legal position of Alaska Natives1 is unique among Native Americans. While the same legal rules apply to Alaskan Natives as to Native peoples elsewhere in the United States, the historical development of the relationship between Alaskan Natives and non-Natives was considerably different from that elsewhere. The primary results were that the majority of Alaskan Natives have never lived within reservations, but in their own traditional communities, and that until recent decades many Natives, in remote villages, have been affected very little by non-Native culture. The application of federal Indian law to Alaska Natives is still in its formative stages, with no clear answers to many basic legal questions.
The first significant non-indigenous presence in Alaska came from Russian fur traders in the 18th century. Under Russian influence, parts of Alaska became dominated by Czarist economic influences and by Russian Orthodox religion, but most Native villages were little affected by European influences.
Alaska was purchased by the United States from Russia in 1867. The Treaty of Cession provided that "[t]he uncivilized [Native] tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country,"2 but did not address the property rights of the native inhabitants.3 The early United States presence was limited to a few military posts. Military government was not displaced by civilian government until 1884, and then many local governments were informal and sporadic creations of area miners. Even then non-Native governmental structures were not imposed on Natives except to the extent that the Natives lived in or interacted with the non-Native communities. Since the first non-Native immigrants into Alaska were chiefly small miners, merchants, and fishing interests, there was not the same interest as in the contiguous United States in displacing the Native peoples from their lands and confining them to reservations. As a result many Native villages had no significant pressures or influences from other cultures until well into the Twentieth Century.
The federal government made no consistent effort to deal with the question of the legal status of Alaska Natives during this period. The 1884 Organic Act set up a system for protection of the possessory rights of both Natives and non-Natives to the lands they actually occupied. But there was no clear understanding that statutes designed to protect Indians in the contiguous U.S. extended to Alaska. For example, U.S. v. Seveloff, 1 Ak. Fed. Rep. 64 (D. Ore. 1872), held that the Indian Non-Intercourse Act did not apply to Alaska because the territory was not "Indian country." 4 In 1876 the same court held that Alaska was not Indian country for purposes of federal laws restricting trade with Indians, Walters v. Campbell , 1 Ak. Fed. Rep. 91 (D. Ore. 1876). In 1886, in Kie v. United States, 27 Fed. 351, 1 Ak. Fed. Rep. 125 (D. Alaska 1886), the court rejected the claim of an Alaskan Native accused of homicide that the territorial law did not apply to him because the killing occurred in Indian country, i.e., the Indian village at Juneau. And in the case of In re Sah Quah, 1 Ak. Fed. Rep. 136 (1886), the court held that the laws of the United States applied to Alaskan Natives, including the 13th amendment, thus ending the practice of slavery among the Tlingits of southeast Alaska. 5 In summary, in the early period of exploration and settlement by non-Natives after the purchase from Russia, there was a belief by most courts and federal officials - to the extent that they considered the matter at all - that Alaska Natives were not self-governing units occupying Indian country; but simultaneously, Native institutions continued undisturbed in areas of less contact with non-Natives.
As the non-Native population of Alaska became more stable in the twentieth century, Congress did attempt to impose some structure on the legal position of Alaskan Natives. In 1906 it passed the Alaska Native Allotment Act, 6 which gave Alaskan Natives the right to choose up to 160 acres of land which they occupied or used, similar to the right afforded Indians in the contiguous U.S. in the General Allotment Act of 1887 (25 U.S.C. SEC. 331, et seq.). Many hundreds of allotments exist throughout Alaska as a result, most of which are rural and undeveloped fishing, hunting, and gathering sites.
In 1926, Congress passed the Alaska Native Townsite Act, 7 which permitted homesteading of lands in the immediate vicinity of Native villages. Despite its title, the Act has been interpreted to permit both Natives and non-Natives to occupy townsite lands.8 The federal government also began creating reservations within Alaska, through both Congressional action and executive branch order.9 Ultimately several dozen reserves were created, most small but a few of sizeable acreage. However, the vast majority of the Native villages in Alaska were never within a reservation. Most of the reserves continued to exist until 1971, when all but one (the Annette Island Reserve of the Metlakatla Indian Community) were abolished by the Alaska Native Claims Settlement Act.
Six of the reserves were created by the U.S. Interior Department, using the authority granted in the Alaska Native Reorganization Act of 1936, which extended several sections of the Indian Reorganization Act (IRA) to Alaskan Natives. 10 However, that statute had a profound effect on the organization of other Native villages. Although only six reserves were established under the Act, 66 Alaskan Native villages and two regional Native entities organized under it, most in the first few years after passage.
One of the important continuing questions in Alaska Native law is whether Native villages organized under the IRA have the same powers and immunities as recognized tribes in the contiguous states. There is no definitive answer as to whether IRA entities are recognized tribes as a matter of law, and if so, what legal consequences result. No courts have adopted the theory that Congress intended federal approval of organization under the Alaska Native Reorganization Act to be tantamount to federal recognition of tribal status,11 and several courts have read the language of the Act as indicating the contrary, since it permits Native groups which are not tribes to organize, including groups with ties of occupation (e.g., fishermen's cooperatives) or mere common bonds of residence. 12
As to the powers held by Alaskan IRA councils, there is little doubt that the drafters of the Alaska Native Reorganization Act in the Department of the Interior intended to limit governmental powers to Native councils on reservations. The Secretary of the Interior stated at the time that if Native communities in Alaska wanted to set up their own local governments, the Secretary would have to first establish reservations for that purpose.13 And the Secretary issued a set of Instructions for Organization in Alaska under the Reorganization Act of June 18, 1934, and the Alaskan Act of May 1, 1936, which stated that
The power to prescribe ordinances for civil government, relating particularly to law and order, may extend only to such lands as may be held as an Indian reservation for the use of the community...
The Instructions went on to state that governmental authority, including police powers, the power to tax, and the power to exclude non-members, could be included in IRA constitutions only when reservations existed or were anticipated. At the same time the Commissioner of Indian Affairs stated that
. . . the natives would be able to provide for their own municipal government within the reservation.14
Following the early interest in organizing under the Alaska IRA, there was a long period during which the federal government provided education and other services in remote villages while the territory (and the state after 1959) provided similar services in urban areas. Throughout this period, however, the territory (and later the state) consistently treated all off-reservation areas as completely within the jurisdiction of the state.
The watershed legislation for Alaska Natives was the Alaska Native Claims Settlement Act ("ANCSA") of 1971, 43 U.S.C. § 1601 et seq.. Although there had been litigation over Native land claims for years,15 pressure for an overall settlement of Native claims did not come until the discovery of large quantities of oil on Alaska's North Slope. The need to remove obstacles to development of the oilfields and to construction of a trans-Alaska pipeline to take the oil to markets in the contiguous states caused Congress to address the claims with a final and far-reaching settlement.
ANCSA organized Alaskan Natives into twelve regional corporations, loosely designed along ethnic and geographical lines, plus one corporation for Alaskan Natives living outside the state; and village corporations for each "Native village" with a predominantly Native character and a Native population of at least 25. Over 200 Native villages eventually organized ANCSA corporations under the state business corporation code, as did a number of urban Native groups. The regional and village corporations received the right to over 44 million acres of land, and they and their members received nearly $1 billion in monetary payments. In return, all aboriginal claims to lands and any aboriginal hunting and fishing rights in Alaska were extinguished.
ANCSA was the high tide of assimilationism in Alaska. Congress explicitly rejected any role in receiving or administering ANCSA benefits for existing village councils and other groups organized under the Alaskan IRA. Instead, it required organization under corporations created under state law and subject to state regulation. Eventually all land conveyed under ANCSA was to be subject to state taxation. 16 Village corporations were required to convey a portion of their lands to the state-chartered municipality in the community, or if none existed, to the state in trust for a future municipality. And all but one of the existing reservations in the state were terminated.17 Congress stated in the preamble to the law that
the settlement should be accomplished . . . without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges...
The Department of the Interior has consistently interpreted this language and the other provisions cited above as ending its trustee duty to former reserve lands in Alaska and as ending its supervisory role over those lands, and has refused to accept ANCSA land into trust status.18 Since passage of ANCSA the Interior Department has withdrawn much of its presence in rural Alaska. It turned the system of BIA schools over to the state, which now provides all educational services in rural communities, either directly or through municipalities. Most of the rural health care system is now provided by the state. The Interior Department does not maintain BIA personnel in rural communities or administer federal programs as though the villages occupied reservations. State agencies treat Native villages (except Metlakatla) as within the state's criminal, civil, and regulatory jurisdiction.
During the 1970's there was increasing interest in asserting Native rights and the right to self-government among Native villages. In part this movement appears to have been a reaction to the provisions of ANCSA which put such a large part of the villages' land base and assets in the hands of business corporations, entities completely unknown to traditional Native culture. It may also be that it was the reaction of younger village leaders to the fact that the ANCSA corporations were largely controlled by urban Natives of a slightly older generation. In any case it was also contributed to by the increasing frustration of villagers because of inroads on traditional village culture by modern life, including alcohol, drugs, and television. Previously isolated villages found themselves unable to cope with the new invasion in the absence of local institutions which they could themselves control.
Whatever the reasons, Native sovereignty began to be asserted, in two ways. Some villages began to use legal mechanisms, including lawsuits and petitioning the Interior Department for revised IRA constitutions granting broader powers of self-government. Other villages simply began using traditional institutions which had fallen into disuse, such as tribal courts and councils. A number of small cities began the process of disestablishing city governments in favor of Native councils. And a number of villages began restricting the importation of drugs and alcohol, despite claims that such measures were illegal. One village even started enforcing a ban on non-Natives in the village.19 The most extreme form of the argument for sovereignty calls for recognition of Native villages as dependent Indian communities,20 essentially de facto reservations in which Native village councils would have all the prerogatives of reservation tribal governments, including the power to tax and to regulate the affairs of non-Native residents of the village. These claims have given rise to a great deal of litigation since the late 1970's, but the courts have not yet given any clear direction from the courts on the validity of the claims.
Today Alaska Natives are 16 percent of the population of Alaska, but Natives are a far higher percentage of the population in rural Alaska. Natives are a majority in approximately 176 villages and small cities and are a substantial part of the population in over 200 communities. All but one of these communities, Metlakatla, are outside of reservations. Of the over 200 communities characterized by the U.S. Census Bureau as Native in character, over half have state-chartered municipal governments, and 69 have Native councils with federally approved Indian Reorganization Act councils; of these, 53 have both city governments and IRA councils. Most Native villages without IRA councils have some form of traditional Native council, although these vary widely in the extent to which they are active. Almost all of these villages have village corporations formed pursuant to the Alaska Native Claims Settlement Act. Most villages are also served by one or more regional non-profit organizations which provide services to Alaskan Natives, often as subcontractors for the Bureau of Indian Affairs or the State.
The number of local institutions with a role in service delivery or governance in small villages has been a source of frustration for some villagers. In some communities the villagers have been able to integrate the various councils and service providers to maximize the benefits to the community, while others have been less successful. One common complaint is that the local problems are not addressed because local institutions -- particularly the Native councils -- are not legally empowered to act as true local governments.
A. Tribal status. Tribal status has emerged as the first area of contention for advocates of Alaska Native sovereignty. Tribal status is essential for claims of governmental powers within Indian country,21 but even in the absence of Indian country it is important because of the limited inherent powers of a tribe, such as sovereign immunity, and because many federal programs are available to tribes regardless of whether they occupy Indian country. Some advocates for Native sovereignty have argued that tribal councils have the power to tax or regulate the affairs of non-members whose activities affect tribal members, even in the absence of Indian country.
The U.S. Court of Appeals for the Ninth Circuit has been inconsistent in its treatment of the tribal status of Alaskan Natives. In State of Alaska v. Native Village of Venetie, 856 F.2d 1384 (9th Cir. 1988), a case addressing whether an off-reservation Native council may tax a state-sponsored school construction project, the court found that although a tribe has immunity from suit, tribal status is a factual question which must be addressed first. The court also rejected the village's contention that being listed by the Bureau of Indian Affairs as an "Alaskan Native entity qualified to received federal services to Indians" was de facto federal recognition as a tribe. A second panel of the Ninth Circuit then ruled that, at least for purposes of federal jurisdiction over suits by tribes, all groups listed as Native villages by ANCSA and all Native councils organized under the Indian Reorganization Act were tribes.22 Finally, a third panel of the Ninth Circuit held that IRA organization and ANCSA Native village status were merely factors to be considered regarding federal jurisdiction, but that as to tribal status in general, the courts must examine the factual circumstances to determine whether a modern Native group is the successor to an historical tribe. 23 Assuming that this last case is the Ninth Circuit's definitive position, it appears that in the absence of formal federal recognition by statute or by Interior Department ruling, Alaskan Native groups must prove tribal status by a factual showing of their historical and present-day political character.
The Alaska Supreme Court has issued two decisions touching on tribal status. In the first, Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32 (Alaska 1988), the court held that a Native council organized under the Indian Reorganization Act did not possess sovereign immunity because it was not in any meaningful sense a sovereign or self-governing. In a lengthy discussion of the history of federal treatment of Alaskan Natives, the court concluded that Congress intended that most Alaskan Native groups not be treated as sovereign tribes. It also said that when Congress extended the Indian Reorganization Act to Alaska, it expressly stated that Alaskan Native groups were not tribes. A year later the court issued a contrasting decision in which it held that an urban Native group, also organized under the IRA, could not have its business property foreclosed on for taxes owed to the municipality, because Section 16 of the IRA permitted entities organized under it to immunize their property from seizure without consent. In the Matter of 1881...Delinquent Property Taxes, 780 P.2d 363 (Alaska 1989).24 It thus appears that the court believes that there is no inherent sovereign immunity which would insulate a Native council from legal process, but that the Indian Reorganization Act grants specific statutory protections even for business property. The irony is that the party denied sovereign immunity in the Stevens Village case, the village council, is the only governing body within the village, while the Nome Eskimo Community, whose property was immunized in the second case, is an urban group within a city and performs no governmental functions. It appears that the jurisprudence of the Alaska Supreme Court is still in its formative stages in this regard.25
B. Indian Country. If federal Indian law as construed in the contiguous United States is to be applied to Alaska, the bulk of governmental powers which a tribe may exercise are available to it only within Indian country. Indian country is defined as reservations, dependent Indian communities, and allotments. 26 Since all but one Alaska Native village are outside reservations, and almost all allotments are rural fishing and gathering sites, advocates of Native sovereignty have had to claim that the areas around Native villages are dependent Indian communities. Although the courts have addressed the definition of dependent Indian communities for decades,27 they have only just begun to address the question in regard to Alaskan Native villages.
It is clear that the existence of dependent Indian communities in Alaska is a factual question. Although some villages have suggested that lands granted to village or regional corporations in ANCSA could be considered Indian country almost by definition, the courts have never adopted the suggestion.28 The only court of appeals decision of relevance states that the existence of Indian country must be determined by a factual examination, using the factors already laid out by courts of appeals in cases from the contiguous states.29 Those factors were more recently summarized by the U.S. Supreme Court as whether the area was set aside by the United States for the protection of dependent Indians, under the supervision of the U.S.30 In several pending cases in the District Court it appears that the court will look most intensely at the degree to which the community is in fact dependent on the United States and whether the U.S. treats the area like a de facto reservation.31
C. Tribal Court Jurisdiction. The lack of clarity about whether Alaskan Native groups are tribes and whether they possess governmental powers has led to another set of legal controversies, over whether those very questions must be answered first by tribal courts.
In National Farmers Union Insurance Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985), the Supreme Court held that comity required a litigant against a tribe to exhaust its remedies in tribal court before asking the federal courts to rule whether a tribal court has jurisdiction of the matter. In Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987), the Court set out a similar rule in diversity cases. However, in both those cases it was uncontested that there was a recognized tribe, that the tribe occupied a reservation, and that it had a tribal court with authority to hear cases within its jurisdiction. The question has arisen in several Alaska cases whether the same rule of comity applies when the claim of tribal status is contested or when the case arose outside of a reservation, so that there is no clear basis for a tribal court to exercise jurisdiction over a non-member. Neither Supreme Court case addressed this situaion,32 and nor has any reported decision from outside of Alaska.
In the only appellate decision thus far on this issue, the U.S. Court of Appeals for the Ninth Circuit has held that exhaustion of tribal remedies is not required until the federal courts first determine whether the claimants to tribal powers are sovereigns.
Certainly, public policy encourages tribal courts as part of the self- determination of Indian tribes. See Iowa Mutual Ins. v. LaPlante, 107 S.Ct. at 977. It also encourages exhaustion of tribal remedies. Id. However, these policies would not be furthered if an Indian community, which is not an Indian tribe, exercises powers that it clearly does not possess. Therefore, until it is decided that either Native Village or Venetie is a sovereign tribe, proceedings in the Native Court could not be in the public interest.33
The U.S. District Court for the District of Alaska has interpreted this language to mean that, although the Nat'l Farmers Union exhaustion requirement applies to tribal courts in Alaska generally, the federal courts will not require exhaustion until they themselves have first found that a valid tribal court exists with jurisdiction over non-members; in essence, the federal courts themselves will determine whether there is a tribe and whether the tribe occupies Indian country. Only if it determines these issues in favor of the tribe will the case be transferred to tribal court for a determination of jurisdictional and merit questions.34
One of the unique aspects about Native life in Alaska is that many rural villagers still depend on traditional hunting, fishing, and gathering for a large portion of their nutritional needs. This fact has led to years of litigation and legislation over how to protect subsistence activities and how to allocate the resources among conflicting subsistence, commercial, and sports users.
The Alaska Constitution provides that "fish, wildlife, and waters are reserved to the people for common use," . . . "subject to preferences among beneficial uses," (Ak. Const., Art. VIII, sec. 3 and 4). The statewide debate on whether subsistence priorities are permitted under this provision first became a statewide concern when the Alaska Department of Fish and Game attempted to limit harvest of a threatened caribou herd to local residents who showed a need for the meat; the program was challenged, and the Alaska Supreme Court invalidated the program on procedural grounds, but did not take the challengers' suggestion that a local preferential allocation violated the State Constitution or federal equal protection. 35 At about the same time Congress began debate on massive legislation regarding disposition and management of federal lands in Alaska. Congress, with the support of the state, included in the legislation (the Alaska National Interest Lands Conservation Act of 1980) a requirement that rural residents be given a preference for subsistence harvests on certain federal lands (which comprise over one-half of the state).36 Fish and game management on federal lands was permitted to remain a state function, the state provided the rural subsistence preference on state lands as well.
The State did go ahead with a formal rural preference regulation. However, in 1989, the Alaska Supreme Court ruled that the rural subsistence preference was impermissible under the Alaska Constitution's common use provisions. 37 Negotiations between representatives of subsistence users (largely Native organizations), the State, and those opposed to preferences for rural or Native users failed to achieve consensus on a method of reconciling state law with ANILCA, and the federal government took over management of subsistence fish and game resources on the designated federal lands. The impasse remains in place today.
The importance of the subsistence debate for Indian law in Alaska is two-fold. Subsistence is of such importance to Native villagers that the debate has become, for many rural Natives, a surrogate for the debate on Native sovereignty. The movement toward local Native or tribal governments is fueled, to a large degree, by villagers' desire to control their own fish and game activities. In several instances it has resulted in Native village court complaints against state and federal officials for enforcing game laws against villagers; to date none of the village court proceedings has been formally responded to, much less enforced.
Secondly, some of the many cases claiming subsistence rights under federal or state laws have included counts seeking a ruling that Native residents have inherent tribal rights to take fish and game, or that the federal government has a trust obligation to ensure Native harvests of subsistence resources. These counts -- based on Native or tribal status rather than rural residence -- have not been adjudicated, since the actual focus of litigation has been on the rural preference provisions. But they represent a second approach to subsistence problems that implicates all of the claims of tribal status, Indian country status, and federal trust duties, that are the basis for more direct sovereignty claims. If federal subsistence management does not provide the kind of preferences which rural Natives expect, it can be expected that claims based on Native status will emerge as another fruitful litigation ground.
Caselaw on Alaska Native sovereignty has developed slowly, and it will likely be some years before there are definitive judicial rulings on most of the questions of greatest concern to Alaska Natives. In the meantime, the conflicting interests of Natives and non-Natives, village councils and state government, and villagers and ANCSA corporations have prevented either Congress or the state legislature from taking steps to sort out the legal rights of Alaska Natives. The Department of the Interior has been immobilized in any attempt to find a way out of the confusion by its own internal conflicts.38 Several panels and commissions have been created to offer expert advice on resolving the conflicts,39 but to date none has produced concrete results or brought the parties closer together. Yet another federal/state panel was recently authorized by Congress. 40 Unless it or a similar effort achieves consensus on legislative clarification of the issues, it seems likely that the courts will, over the years, resolve these questions. In the meantime all parties must live with a great deal of uncertainty.
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