The United States Congress may have ended the century-old Alaska Native land claim when it passed the Alaska Native Claims Settlement Act (ANCSA) on December 18, 1971, but it also cast doubt on the viability of tribal governments in Alaska. By turning fee simple title over to state-charted corporations, ANCSA attempted to avoid the shortcomings of an apparently flawed reservation system. But by giving land to state-chartered corporations and leaving the tribes themselves landless, the act limited tribal governmental sovereignty at a time when federal Indian policy favored tribal self-determination. More than 30 years later, the full impact of the law is far from evident and court opinions interpreting the act continue to make waves nearly as impressive as the original law did, especially for Alaska’s 229 tribes claiming their place in the post-ANCSA world.
The U.S. government had nearly a century of Indian policy under its belt by the time Alaska Natives became involved. It is important to understand some of these early federal Indian policies because they continue to form the basis of tribal existence. The most basic principle, according to F. Cohen’s Handbook of Federal Indian Law, “is that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather ‘inherent powers of a limited sovereignty which has never been extinguished.’”1
If tribal powers truly stem from an inherent sovereignty that once existed independently from the federal government, it is critical to ask to what extent those powers really have been extinguished. In Alaska, two congressional acts and one Supreme Court opinion are particularly important in answering that question—Public Law 280, ANCSA, and Alaska v. Native Village of Venetie Tribal Government (see page 34 this issue).
Legal Background
In the 1830s, U.S. Supreme Court Chief Justice John Marshall laid the foundation for federal Indian law when he described the tribes as “domestic dependent nations” in Cherokee Nation v. Georgia.2 Clearly, Native American tribes existed with authority over their members and territory prior to, and independent of, the United States. In this sense, the tribes were once foreign nations. By the 1830s, however, many tribes were being forcibly removed from their land to accommodate an encroaching non-Native population. The continued political existence of these tribes was no longer independent of the federal government. Indeed, according to Marshall, a tribe’s relationship to the federal government was more like “a ward to his guardian.”3 This paternalistic relationship that Marshall described formed the basis of a trust doctrine which, for better or worse, continues to drive federal Indian policy today.
In order to fulfill its trust responsibility—its duty to protect Native land and resources—Congress has been held by the Indian Commerce Clause of the U.S. Constitution to have broad powers to alter, and even extinguish, the federal-tribal relationship.4 But this plenary power, as it has been described, is not necessarily absolute. Because of the inherent sovereignty principle and the federal government’s trust responsibility, extinguishment of aboriginal rights to land or self-government cannot be implied lightly.5 Over the years, Congress has attempted to shed its trust obligation by pursuing either assimilation or self-determination policies. Under the assimilation model, individual Native Americans abandon tribal ways, thereby extinguishing the federal duty by eliminating the distinction between Native people and other U.S. citizens. Under the self-determination model, tribes are empowered to manage their own affairs and thereby ease the burden of the trust obligation without necessarily destroying it.
Federal Indian policies and many inconsistent court decisions have vacillated between these two conflicting models. But one rule of statutory construction born out of the trust doctrine has held fast—when Congress acts to extinguish tribal governmental powers, it must do so clearly and without equivocation, because all doubts and ambiguities are to be construed in favor of Native Americans.
The U.S. Constitution limits Congress’ role concerning tribes to regulating commerce,6 but Congress has never shied from an opportunity to exercise its plenary power in Indian affairs. Adopted in 1830, the Removal Act was one of the first policies to severely intrude upon tribal sovereignty. The removal policy ended when the federal government began to establish reservations in 1861. The reservation period was replaced by the General Allotment Act of 1887, which sought to destroy the tribal land base. Under the allotment policy, reservations were carved up into 160-acre lots and allocated to individual Indians. Fee simple title to “surplus” land was sold to non-Indians. Individual Indians were allowed to transfer their lots to non-Indians as well. Indian land decreased by two-thirds in the 50 years following the General Allotment Act.
The allotment policy ended in 1934 with the passage of the Indian Reorganization Act (IRA). The IRA provided for the voluntary adoption of tribal governments and corporate charters by the tribes, marking a dramatic shift toward self-government. The IRA was explicitly extended to Alaska Natives in 1936. This policy, however, did not last long, as Congress again shifted in favor of another assimilation policy by terminating the tribal status and federal trust relationship with a number of tribes.7
While tribes in Alaska were not terminated, during this era Congress enacted Public Law 280, which mandated concurrent state criminal and civil jurisdiction over Native lands in place of federal jurisdiction. The territory of Alaska was covered by the law, implying that Alaska Natives had inherent powers of self-government, but that the Alaska government now held federally delegated powers in Indian affairs. The federal government’s relinquishment of its jurisdiction to state governments was a direct affront to the sovereign status of tribes.
Sovereignty After ANCSA
During most of this time, Alaska Natives were actively pursuing a land claim in federal courts and Congress. Soon after oil was discovered on Alaska’s North Slope in the 1960s, economic and political pressures pushed the Native land claim to the forefront of the public’s and Congress’ attention. Anxious to gain access to oil fields and also avoid the problems associated with the reservation system, Congress broke the mold in federal Indian law when it passed ANCSA on December 18, 1971. The act departed from the reservation policy by turning fee simple title to Indian land over to private state-chartered corporations.
ANCSA’s impact on tribal government is playing itself out in the customary federal Indian law fashion—piecemeal confusion in a sea of conflicting policies and inconsistent opinions. ANCSA may have settled aboriginal land claims and extinguished aboriginal hunting and fishing claims by giving land to the state-chartered corporations, but it did not bring an end to tribal government in Alaska. In fact, ANCSA came out of Congress at a time when tribal government powers were surging.
An analysis of tribal sovereignty requires an examination of tribal status and tribal jurisdiction. The status of tribes in Alaska has been a hotly debated subject, not because of any inherent differences between the Native people in Alaska and those in the Lower-48 states, but rather because historical circumstances placed Alaska Natives on a different timeline in the development of federal Indian law. By the time any significant number of Americans settled in Alaska, the United States had officially ended its policy of entering into treaties with tribes and, to a large extent, had stopped creating reservations. Alaska Native tribal relations with the United States began at a time when federal Indian policy favored assimilation.
Questions over the status of tribes in Alaska were answered in 1993 when the U.S. Department of the Interior published a list of Native tribal entities in Alaska.8 Congress ratified the list in 1994 in an act that also prohibited the Department of the Interior from removing any tribe from the list without Congressional approval. While the Tribal List Act solidified the status of tribes in Alaska, it did not address the question of tribal jurisdiction. The outer boundaries of tribal jurisdiction are determined by membership, geography, and subject matter. When federal Indian law was founded, the Supreme Court’s definition of tribal sovereignty was both membership- and geography-based—that is, tribes had a large amount of authority over their members and over non-members within tribal territory. Recent Supreme Court opinions have rejected the geography-based view of tribal sovereignty in favor the membership-based view.9
Sovereignty Goes to Court
In 1998, the U.S. Supreme Court addressed part of the tribal sovereignty question in Alaska v. Native Village of Venetie Tribal Government (see page 34 this issue). In Venetie, the court said that land held in fee simple by the tribe, pursuant to ANCSA, was not Indian country. “Indian country” is a term of art used to identify areas subject to tribal jurisdiction. It includes Indian reservations, dependent Indian communities; and Indian allotments. Because ANCSA revoked all reservations in Alaska except one, and no allotments were at issue, the tribe in Venetie argued that it was a “dependent Indian community.” In order to qualify as a dependent Indian community, the court held, the land in question must have been set aside by the federal government for use by the Indians as Indian land and under federal superintendence. According to a unanimous decision by the court, Congress departed from its practice of “setting aside” land “for Native use” when it revoked reservations in Alaska by passing ANCSA. Moreover, the court held that ANCSA ended “federal superintendence” over the tribe’s lands. The court went on to note that by passing ANCSA, Congress sought to settle Alaska Native land claims “without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, [and] without creating a reservation system or lengthy wardship or trusteeship.” Under this analysis, ANCSA land is not Indian country, but the court said that “whether the concept of Indian country should be modified is a question entirely for Congress.”10
ANCSA attempted to preserve the Indian tribes, but simultaneously attempted to sever them from the land; it attempted to leave them as sovereign entities for some purposes, but as sovereigns without territorial reach. Despite the absence of territorial reach, tribes still have the authority to establish a chosen form of government, determine tribal membership, and govern and provide services to members, among other rights. Tribes also enjoy sovereign immunity from lawsuits.11
The Alaska Supreme Court had the opportunity to explore the scope of post-Venetie tribal powers in Alaska in John v. Baker. Following the membership-based view of tribal sovereignty, the court, in Baker, held that Alaska Native tribes possess the inherent sovereign power to adjudicate child custody disputes between tribal members in their own courts. As Justice Dana Fabe explained, “Nowhere does [ANCSA] express any intent to force Alaska Natives to abandon their sovereignty. … Congress did not intend for ANCSA to divest tribes of their powers to adjudicate domestic disputes between members.”
At least for now, tribes in Alaska continue to retain a certain amount of power to regulate their internal affairs and many are doing so out of both a desire to retain their sovereignty and a necessity caused by reduced state and federal funding and services. But state and federal actions continue to pose a threat to tribal sovereignty.
Politicians and Sovereignty
A significant amount of tribal energy is also spent providing social programs, health care, and housing. Alaska’s 229 tribes receive some $750 million a year from the federal government to fund these programs. With federal dollars drying up, in 2002 Senator Ted Stevens announced plans to consolidate or regionalize tribes in order to cut inefficiency and unfair competition. According to Stevens, too much of the money is soaked up in administrative costs by small tribes and the system favors the larger, more politically savvy tribes that are able to hire lobbyist and “Harvard-trained” grant writers to draft appealing grant applications. Under this system, according to Stevens, smaller tribes are losing out and too much money is spent on indirect costs. As a solution, he hoped to identify or establish regional entities to direct federal funds to the tribes.
In general, Alaska’s tribes have opposed these regionalization efforts because, they say, the current system is efficient and any regionalization or consolidation efforts threaten their governmental sovereignty. As one attorney advocating for the tribes put it, “any time you tinker with funding legislation, it must not in any way work to the detriment of tribal sovereignty. Federal funding goes hand in hand with tribal existence.”12 Stevens has asked for the tribes’ assistance in finding a solution.
Sovereignty Depends on Tribes
Public Law 280, ANCSA, Venetie, and Steven’s recent call for regionalization have all been detrimental to tribal sovereignty in Alaska. Commentator Benjamin Thomas has referred to the combination of these activities as “de facto termination.”13
“By imposing Alaska state jurisdiction, transferring title to state corporations, and refusing to recognize tribal jurisdiction over tribal lands, the federal government essentially divested Alaska Native tribal governments … of most if not all their autonomous attributes,” Thomas wrote in 2000 in the American Indian Law Review. The long-term impact of these laws has yet to be determined. ANCSA no doubt presented a novel solution for Native land claims. Some people have described ANCSA as a self-determination vehicle whose true power has yet to be felt. Others consider the law to be another assimilation vehicle set on a course to destroy Native land, resources, and cultures. The only certain thing about tribal governmental sovereignty is that its existence depends 100 percent on each tribe’s willingness to assert it.
1. Cohen, F. (1982). Handbook of Federal Indian Law 231. Citing and quoting United States v. Wheeler, 435 U.S. 313, 322-323 (1978).
2. Cherokee Nation v. Georgia, 30 U.S. (5 Pet) 1 (1831). The issue in the case was whether the Cherokee Nation was a foreign state for the purpose of federal jurisdiction.
3. Cherokee Nation v. Georgia
4. Case, D. (2001). Alaska Natives and American Laws, Second Edition. P 373. Citing Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
5. Case, D. (2001). P 374. Citing Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918).
6. Indian Commerce Clause, art. I, sec 8, clause 3.
7. House Concurrent Resolution 108, 67 Stat. B132 (1953) (Terminating certain tribes). 8. The department stated its intent: “to eliminate any doubt as to the Department’s intention by expressly and unequivocally acknowledging that the Department has determined that the villages and regional tribes listed below are distinctly Native communities and have the same status as tribes in the contiguous 48 states … This list is published to clarify that the villages and regional tribes listed below are not simply eligible for services, or recognized as tribes for certain narrow purposes. Rather, they have the same governmental status as other federally acknowledged Indian tribes with a government-to-government relationship with the United States; are entitled to the same protection, immunities, privileges as other tribes; have the right, subject to general principles of Federal Indian Law, to exercise the same inherent and delegated authorities available to other tribes; and are subject to the same limitations imposed by law on other tribes.” 58 Fed.Reg. 54364 (October 21, 1993).
9. Dussias, A. (1993). Geographically Based and Membership-Based Views of Indian Tribal Sovereignty: The Supreme Court’s Changing Vision University of Pittsburgh Law Review 1, pp 55.
10. 522 P2d at 534
11. Tribes enjoy sovereign immunity even outside of Indian country. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754-755 (1998)).
12. Gray, J. (2003, May 7). Tribes Counter Spending Criticism. Anchorage Daily News.
13. Thomas, B. (2000). The De Facto Termination of Alaska Native Sovereignty: An Anomaly in an Era of Self-Determination, American Indian Law Review 421, pp 24.
Joseph G. Nelson is a member of the Teikweidi Tlingit Clan and an attorney with Simpson, Tillinghast, Sorensen & Longbaugh. He also serves on the board of directors of Yak-tat Kwaan Corporation, a Native village corporation in southeast Alaska.
