July 5, 1997

Misty Matthew and Frank Fox

Misty Matthew, 22, and Frank Fox, 54, Quinhagak's tribal natural resources manager, pilot a boat along the coast near their village. "(Indian country) gives young people someone to look up to," Matthew said. "They see their elders making decisions about important things. When I was young, I didn't have people to look up to that way." (Anchorage Daily News photo by Bob Hallinen)

Jubilation and fear

Venetie ruling changed Alaska politics

By Tom Kizzia
Daily News reporter

TYONEK -- One weekend last December, the sky above northern Cook Inlet buzzed with small planes. Native leaders and seven dance troupes from around the state were flying to a potlatch at the last isolated Dena'ina Indian village in Alaska's most populated region.

A banner was hung in the high school gym: ''Welcome to Tyonek's Victory Celebration.''

It was a double-barreled celebration.

The 9th U.S. Circuit Court of Appeals had just ruled, in a case involving the northern Indian village of Venetie, that village-based tribes in Alaska may have territorial jurisdiction over Indian country. Only weeks earlier, a federal judge had upheld Tyonek's claim to be a historical tribe, the end of a 15-year legal battle.

''We were celebrating recognition of our sovereignty,'' said Tyonek council president Peter Merryman. ''We had it all the time, but now they recognized it.''

On an alcohol-free weekend, the villagers and their guests danced all night.

''The jubilation that greeted this Indian country decision was amazing to me. It was like a rebirth,'' said John Sky Starkey, attorney for the Association of Village Council Presidents in the Yup'ik region around Bethel.

But jubilation was far from universal.

In Juneau, the Legislature set to work assembling a $1 million legal fund to fight the Venetie decision. Critics said tribal governments would ultimately hurt Natives, economically and socially, and would segregate Alaska into Native and non-Native camps.

''When I first came up here 30 years ago, everyone was proud to be an Alaskan,'' said Anchorage attorney and sportsmen's advocate Wayne Anthony Ross. ''Now the impression is people are being taught to be more proud of being a Native than of being an Alaskan.''

With state lawyers predicting chaos and Rep. Al Vezey, R-North Pole, calling tribal sovereignty an ''absolute evil'' during a House floor debate, the battle over tribal government in Alaska was far from over.

For now, all attention is on the state's appeal to the U.S. Supreme Court. Beyond that, both sides are talking about carrying their case to Congress. But thoughtful leaders on both sides also are beginning to worry about the difficulties that victory for their side would bring.

There may be no return to the political landscape that existed in rural Alaska before the Venetie decision.

Next up: Supreme Court

Last November, Native rights lawyers won a stunning victory at the 9th Circuit. But now they face reinvigorated legal opposition and a Supreme Court that has not appeared inclined to expand the powers of Indian tribes.

In June, the Supreme Court agreed to hear the state's challenge of the Venetie decision. The state succeeded in getting the court's attention with a fusillade of legal arguments, supported by briefs from the Legislature, Sen. Ted Stevens, R-Alaska, and 20 other states.

The heart of the state's argument is historical. The state contends Indian country never existed in Alaska as in the Lower 48, and in any event Congress did away with it in the Alaska Native Claims Settlement Act. This approach sidesteps some of the most controversial debate on the future of Alaska Native society.

''The issue isn't whether this is good or not. The issue is, 'What did Congress intend when it passed ANCSA?' '' said former state attorney general Charlie Cole, who has been hired by the Republican majority to represent the Alaska Legislature.

Venetie's counsel, Heather Kendall-Miller of the Native American Rights Fund, said the court may have decided to take the case to clarify tribal rights ''so that people in Alaska can get back to business.'' But her defensive effort to minimize the ruling's impact, saying it applied only to Venetie, had failed.

Oral arguments before the Supreme Court are expected in November or December, state lawyers said.

More lawsuits likely

If the Venetie decision survives the state's Supreme Court appeal, it will mean recognized Indian country jurisdiction at first only for Venetie. The appeals court said Venetie, with its former 1.8 million-acre federal reserve, presented an especially compelling historical tie between a landscape and a people.

But more federal lawsuits over Indian country powers would be right behind, as litigants begin piecing together the jigsaw picture of which lands in Alaska fall under tribal authority.

Native rights lawyers say tribes in racially mixed urban areas may have a hard time establishing themselves as ''dependent Indian communities'' under the 9th Circuit's test, which includes examination of ''the cohesiveness of the area inhabitants.'' The Eklutna tribe in Anchorage or the Kenaitze in Kenai may not pass, nor tribal governments in mixed-race regional hubs such as Bethel and Nome, nor village Native corporation land holdings distant from the core village.

Lare Aschenbrenner, a lawyer with the Native American Rights Fund, predicted the total amount of Indian country in Alaska if tribes win will eventually be ''well under 20 million acres'' -- less than half the land conveyed to Natives under the settlement act.

''I think we'll have a good idea after maybe one more big case with a more typical village,'' said Lloyd Miller, who opened an Anchorage office in 1984 for Sonosky Chambers, a Washington, D.C., law firm specializing in Indian law, and represented the Alaska Federation of Natives in the Venetie case. ''If a village like Kwethluk wins, there isn't going to be litigation over Hooper Bay or Nulato.''

State lawyers disagree. Each village will have a particular pitch to make in court, based on its own circumstances. Then there will be legions of lawsuits to determine which tribal powers apply in each unique Alaska situation.

''There are hundreds of tribes, and the litigation permutations are as vast as the capacity of fine human minds can make them,'' said 9th Circuit Judge Ferdinand Fernandez in a reluctant concurring opinion.

''There are lots of inventive attorneys out there, and you are collecting some of them now,'' said Washington attorney Jim Johnson, an adviser to the Alaska Legislature who has made a career arguing against tribal lawyers. ''All the big firms have got people migrating up there to Alaska.''

Tribes making progress

People who say Indian country can work foresee a period of adjustment if Alaska's tribes continue to prevail in federal court.

As the extent of Indian country becomes clear, tribal councils in villages would begin sorting out which governmental functions to assume and which to relinquish to the state, municipalities or to regional tribal confederations. Already the Alaska Inter-Tribal Council is setting up an association to assist nascent tribal courts.

For their examples, tribal leaders are turning to Lower 48 Indian reservations. Long portrayed as islands of poverty and despair, some reservations are now being touted as bootstrap-success stories. Congressional support for Indian self-determination has changed the face of Indian country since the 1971 Alaska Native Claims Settlement Act, scholars say.

''No one when ANCSA was passed would have predicted the kind of renaissance we've seen in Indian country,'' said Colorado law professor Charles Wilkinson, a Western land-use specialist who has watched developments in Alaska with fascination. ''In hindsight, ANCSA was the wrong idea. What we know now is governmental status is far more effective than corporate status. ... There's no question that the reservations were downtrodden. But in every area a person could name, the tribes are making deep progress. And they are making it themselves.''

In Alaska, state agencies and private industry would have to develop new contracts to deal with complex, overlapping jurisdictions.

It wouldn't be easy, tribal supporters say, but the result should be a strong, lasting Alaska Native culture.

''The non-Native community ought to be grateful that they're sitting on a cultural gold mine,'' said Dalee Sambo Dorough, a former Alaska tribal coalition leader who is returning to Alaska to open a new office for the Montana-based Indian Law Resource Center.

But tribal critics say Indian country would bring mounting resentment from non-Native state residents. Millions of state dollars are sent to the Bush for rural education and village water and sewer systems. As state budgets decline, critics say, legislators will not want to pour money into communities that claim to be independent.

''Eventually, people will tire of providing services on this one-way ticket and there's liable to be a backlash,'' Ross said.

Those who foresee chaos and division say they will turn to Congress if the Supreme Court upholds the Venetie decision.

Turning to Congress

Alaska's senators have promised to try for a congressional fix if the Venetie decision stands, but they aren't putting proposals on the table yet.

Stevens, one of the most powerful members of the U.S. Senate, has seemed personally affronted by the possible collapse of the land claims deal he helped broker. Nevertheless, he has suggested that Congress might eventually concede limited powers to Alaska tribes.

''There's an opportunity for us to recognize village areas need extra powers so they can deal with problems like alcohol,'' Stevens said in February after a testy meeting in Juneau with Native leaders who welcomed the Venetie decision. ''But they do not need sovereignty powers so they can evict non-Natives off their land.''

For an example of limited sovereignty, Congress might look to Maine, where land claims of the Passamaquody and Penobscott Indians were revived in the 1970s by court decisions recognizing old treaties.

In 1980, the Maine Legislature cut a deal with the tribes to grant them more than 300,000 acres of land, a $27 million trust fund and limited legal jurisdiction -- mostly over internal matters, including minor criminal offenses by tribal members. In return, the state was assured that the tribes would bring no further claims. The deal was ratified by Congress.

''We did not want a nation within a nation,'' said Paul Stern, an assistant attorney general for Maine. Stern notes that the tribes have since expressed regret about the deal, which among other things bars them from operating casinos under the 1988 Indian Gaming Act.

But attempting to rein in tribal sovereignty in Alaska would be difficult, even with the leadership positions of Alaska's three-man congressional delegation, state leaders said.

''It would be very difficult,'' conceded former attorney general Cole. ''Certainly every Indian group in the United States would oppose substantial changes to the settlement act.''

Any steps to strip tribal powers would be seen nationally as a step toward termination of Alaska's tribes, said Tanana Chiefs Conference president Will Mayo.

Across the Lower 48, tribal-state relations are strained these days. Casino gambling has been a major source of friction, but tribes also are asserting more governmental powers under the Indian Self Determination Act. The states are defending their own sovereignty, bringing a sudden boom of court cases nationwide.

''Tribes are really on edge in the Lower 48,'' said Mayo, a former executive board member with the National Congress of American Indians. ''They're very much on guard about regional events, because if one state is successful at weakening tribal powers, other states will look at that.''

''You can let the federal government take away tribal self-government one tribe at a time, or you can have the tribes work together,'' said John Dossett, a staff attorney with the Indian congress.

In Alaska, any effort to forge a political compromise for Congress could expose divisions masked during the fight over the Venetie decision.

On the Native side, internal differences were apparent last fall when the Alaska Federation of Natives floated a proposed ''omnibus bill'' seeking limited recognition of tribal sovereignty in Alaska. Citing conclusions of the federal-state Alaska Natives Commission, the AFN wanted tribal councils to get power over alcohol laws, a stronger hand in child welfare matters and new tools for economic development.

The proposal was sharply criticized by many sovereignty advocates for not going far enough and for being drawn up without the participation of tribal leaders. After the broader Venetie ruling, it was shelved.

On the state's side, a search for compromise could reopen the crevasse between Democratic Gov. Tony Knowles, who accepts the existence of sovereign tribes without Indian country, and Republican legislative leaders, many of whom refuse to accept tribes at all.

What if tribes lose?

What if Alaska's tribes lose in the Supreme Court? The prospects of a political solution become even more volatile and unpredictable, leaders on both sides of the issue say.

Tribal laws and courts have spread rapidly in rural Alaska in the past decade, even without recognition from the federal and state governments. In villages where tribal government seems to be working so far, community leaders say there is a new sense of optimism.

Among young people, the age group identified as most at risk in past studies of Native society, tribal self-government is having an impact, said 22-year-old Misty Matthew of Quinhagak.

''It gives young people someone to look up to,'' Matthew said. ''They see their elders making decisions about important things. When I was young, I didn't have people to look up to that way.''

A reversal in the Supreme Court would not persuade villages to disband their self-governing activities, tribal leaders say.

''Am I going to return to Venetie and say, 'We don't exist'?'' asked Mayo.

''We'll still have recognized status as a tribe,'' said John Amik, the tribal administrator in Kipnuk, a coastal Yup'ik village that has been run by a traditional council since the 1930s. ''As long as the public here in the village supports our effort to deal with criminal and civil matters we'll keep doing what we're doing.''

Echoing the state's predictions of statewide chaos, he added: ''It seems like the intent of the state is to create chaos in our village.''

''It would be an international human rights issue and you'd see civil disobedience,'' said Mayo. ''This is a fundamental right of human beings.''

Some opponents of Indian country predict a far worse reaction if the Venetie ruling is overturned.

Arguing that rural Natives are being led astray by ''verbal bomb throwers,'' Stevens warned of possible violence.

''We're really going to have, literally, riots, you know, violence between our separate portions of the community,'' Stevens said. ''I don't like to even think about that. It could well come if this decision is not in favor of the sovereignty claim.''

With recognition of Indian country overturned and tribes continuing to assert their power, what would be the state's next move?

Knowles said he would continue to work with tribal governments to find creative ways to address the problems and frustrations of Alaska Natives.

''The question is what can be the best way to deliver state services in the villages?'' Knowles said. ''I'm not afraid to look at all the tools we have.''

His attorney general, Bruce Botelho, said a victory for the state should prompt a period of introspection on all sides.

''I see a large part of the push for tribal government in the Indian country context behind a deep-seated concern about loss of culture,'' Botelho said. ''There's been a failure of state institutions to stem that diminution. ... We need to recommence that kind of discussion.''

But Knowles said he drew the line at taxation or fish and game management, where tribal rule in Indian country would mean trouble and confusion for Alaska.

''Given the divisive effects, the extended litigation and all the adjacent uncertainty, I felt it was better that, rather than have the courts decide the policy, Alaskans should decide the policy themselves,'' Knowles said.

If the policy were left to Alaskans, what course would the state be likely to set?

In the Legislature, Republican majority leaders say they sympathize with the desire for greater local autonomy. But so far they have suggested they have few options beyond encouraging villages to become state-chartered, self-governing municipalities under the state's Title 29.

''They'll do a better job there than we do here. I support them on that,'' said Sen. Robin Taylor, R-Wrangell, chairman of the Senate Judiciary Committee. ''But run it through a municipal government. The only muster they have to pass is: Does it pass the Constitution of the state of Alaska, which demands equal rights.''

Sen. Rick Halford, R-Chugiak, said he's worried that tribal governments might be unfair. His concern evokes 200 years of argument in America over the status of Indian tribes.

''There have to be other alternatives (to tribes) that give people some security in their lifestyle without violating basic equality provisions,'' Halford said. ''I don't believe that segregation and inequality work in the long run.''

If the state prevails, said House Speaker Gail Phillips, R-Homer, one of the first orders of business should be another lawsuit. This time, she said, the state needs to deal with the other half of the problem: the federal government's recognition of Alaska's villages as tribes, even tribes stripped of Indian country.

''I think this is a major issue that does need to be settled,'' Phillips said. ''Then we can go back to the table and say what is it, under Title 29, that the state is doing wrong that you feel disenfranchised and what can we do to help? But not acquiescing to tribes and tribal sovereignty, because that is not part of our heritage in Alaska.''

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