June 29, 1997

Jimmy Erick

Jimmy Erick skins a muskrat in his cabin in the Athabaskan village of Venetie. The 9th U.S. Circuit Court of Appeals said the village is in Indian country. The state has appealed, but villagers say the ruling simply recognizes their historic relationship to the land that provides their subsistence. (Anchorage Daily News photo by Bob Hallinen)

Villages or Tribes?

A history of congressional indecision
regarding Alaska's Native people

By Tom Kizzia
Daily News reporter

Why is Alaska dealing with questions of Indian country now, when Congress extinguished aboriginal title to Alaska land 26 years ago?

The answer appears to lie in the back-and-forth drift of federal Indian policy. Congress has a history of passing contradictory Indian legislation -- and it has been especially irresolute about the indigenous population of the territory purchased from Russia.

At times, Congress has aimed to promote self-determination for sovereign Indian tribes. At others, it tried just as wholeheartedly to assimilate Indians into the larger society.

The nation has never had a problem setting Indian policies, says South Dakota deputy attorney general Larry Long, an expert on state-Indian relations. ''The problem has been to stay the course.''

That failure to make up its mind, according to the Venetie decision by the 9th U.S. Circuit Court of Appeals, left a fatal crack running through the 1971 Alaska Native Claims Settlement Act.

Congress gives, takes

How is it that Alaska's Native villages are even considered individual tribes? Aren't tribes broad ethnographic groups, such as Navajo and Cherokee?

The answer is that they're tribes if Congress or its delegate -- the Department of Interior -- says they are.

Congress has the ultimate power to dictate to tribes, under principles dating back to the U.S. Constitution (''Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes'').

Under federal law, an Indian tribe is said to have entered a sort of bilateral contract with the United States, bringing its own inherent self-government powers to the bargain. But as the superior partner, Congress can take away certain tribal powers when it chooses.

An act of Congress can even wipe out a tribe's legal standing, turning American Indians into Indian-Americans. ''Termination'' is the phrase for tribes that have disappeared that way, usually when a leadership faction surrendered their self-government powers explicitly in exchange for land and money.

Alaska Natives came into national view during an assimilationist period in the 1880s. They were treated as Indian tribes in some cases and not in others. In a land far from Washington with no treaties and little settlement, there were few pressing reasons to settle their status -- until the discovery of oil on the North Slope in 1968.

With Native claims forcing a halt to any activity on federal land in Alaska, Congress passed the Alaska Native Claims Settlement Act in 1971, just as the nation was moving into a new Indian self-determination era under President Richard Nixon.

Congress tried an experiment for Alaska that blended self-determination and assimilation: land-owning corporations with Native shareholders.

It was an experiment that hasn't been repeated.

''You're kind of a footnote off on one of those tangents in federal policy,'' said South Dakota's Long.

Some of the new Native corporations became important economic forces in Alaska. But for many shareholders in village corporations, the sense that they were also members of a village-based tribe never went away.

A Native sovereignty movement that reasserted a role for tribal governments bubbled up in the early 1980s, driven partly by mounting fears that settlement act corporations could lose their land through sale or bankruptcy.

Some Native corporations greeted the tribal insurgency with disdain. But corporate leaders fell silent as the village-based tribal movement grew.

State digs in

State officials were not silent. In court, Alaska's state government opposed the new assertion of tribal powers. The state said any official recognition accorded Alaska's traditional village governments as ''tribes'' was terminated by the settlement act.

It was not surprising to find the state and tribes on opposite sides, in the 1980s or today.

Historians say it was always thus on the American frontier. Indian tribes west of the Appalachians allied with the French against the British colonies, then with King George against the colonists. As the new nation moved west, tribes generally preferred working with federal emissaries rather than territorial settlers eager to take their land and resentful of their lingering

''Because of the local ill feeling, the people of the States where (Indian tribes) are found are often their deadliest enemies,'' the U.S. Supreme Court observed in 1886.

In Alaska, federal policies empowering Natives often have stirred strong local opposition. In the 1930s and 1940s, during the self-determination era known as the ''Indian New Deal,'' the federal government withdrew land for six Indian ''reserves'' in Alaska (including the land around Venetie) and promised many more. Opposition from territorial residents, who complained that reserves would stifle economic development, halted the program and nearly persuaded Congress, in 1948, to repeal the first six reserves.

Similarly, in 1958, when a federal court ruled that the territory's criminal laws didn't apply on the reserve around Tyonek, local reaction was so strong that Alaska soon became one of only six states with criminal jurisdiction in Indian country.

The state's opposition to tribes remained unbudging through the second administration of Gov. Wally Hickel.

U.S. recognizes tribes

Congress continued to fund Indian programs directed at Alaska's tribal members, often through special provisos inserted by the state's congressional delegation.

Under President George Bush, the federal government parted ways from the state. Nine days before President Bill Clinton was sworn into office in 1993, Republican Interior solicitor Thomas Sansonetti issued a landmark 133-page opinion tracking the history of federal relations with Alaska Natives and concluding that the settlement act had not terminated the villages' status as tribes.

But Sansonetti drew the line at Indian country, saying Alaska's tribes had no jurisdiction over land because of the settlement act.

Clinton then appointed as his director of Indian Affairs a woman with a keen appreciation of the politics of tribal termination. Ada Deer had won national attention leading a successful campaign in the 1970s to restore recognition of her tribe, the Menominee of Wisconsin, which Congress had terminated in 1954.

In 1993, Deer ordered the Bureau of Indian Affairs to issue a list granting formal federal recognition to 226 tribes in Alaska. Deer's order nearly doubled the number of recognized tribes in the United States.

The move undercut the legal position of the state, which was making a last-ditch effort in the federal appeals court to block recognition of Alaska tribes. Gov. Tony Knowles, a Democrat elected in 1994 with strong Native support, announced he was dropping the appeal.

Knowles said the appeal was no longer winnable. His surrender drew an angry eruption from the Republican-dominated Alaska Legislature, with political repercussions still felt this year when the majority insisted on doubling Knowles' request for $500,000 to battle Indian country -- keeping the extra money for its own friend-of-the-court appeal.

Knowles' capitulation was not total. He argued that Alaska tribes after the settlement act had jurisdiction only over some internal affairs. His attorney general, Bruce Botelho, described the 1993 Sansonetti opinion as ''the best overall expression'' of Alaska Natives' status.

Like the Bush administration, Knowles sought a political middle ground: tribes without Indian country.

Enter the 9th Circuit

That middle ground vanished in November, when a three-judge panel of the 9th Circuit ruled that Indian country exists in Alaska, despite the settlement act.

The 9th Circuit based its decision on the existence of ''dependent Indian communities'' in Alaska. In such communities, tribal governments have the same jurisdiction over lands here as tribes do on reservations.

The court spelled out a six-point test for determining the presence of dependent Indian communities. Among the tests: was the Native community cohesive, and did the federal government exert ''superintendence'' over the Natives?

While not every tribal government and village corporation holding appears likely to meet the test, the village of Venetie was found to be in Indian country.

The appeals court said that, notwithstanding the settlement act's disavowal of new ''permanent racially defined institutions,'' the new Native corporations ''maintain a distinctly Native identity.'' The underlying purpose of the settlement act, the court concluded, ''is to permit Alaska Natives to retain the historic connection between tribes and their lands.''

An overarching consideration for the judges was the well-established Indian-law tradition of resolving ''doubtful expressions'' in favor of the Indians.

Many politicians and lawyers involved in drafting the settlement act in 1971 insist that it created a coherent alternative to Indian country, implicitly severing the relationship between tribes and the land. They point, for instance, to provisions allowing Native corporation land to be taxed, unlike reservation land in the Lower 48.

But the appeals court said the law failed to explicitly terminate the special government-to-government relationship between Alaska Natives and the nation.

''Absent a clear and unequivocal expression by Congress,'' wrote the 9th Circuit, ''we will not imply that such termination has occurred.''

Coming home to roost

Was the Alaska Native Claims Settlement Act really so unclear? If so, why?

The state, in its appeal to the U.S. Supreme Court, argues that the intent of Congress in the settlement act was clear when it disavowed reservations and extinguished all claims based on ''aboriginal right, title, use or occupancy.''

Some of those who cut the deal, especially Sen. Ted Stevens, said Congress rejected any attempt to set aside lands in the settlement act for tribes. Critics of the Venetie decision accused the 9th Circuit of ignoring reality to reach a politically correct conclusion.

Former state attorney general Charlie Cole called the decision ''the sort of slipshod judicial craftsmanship which we've come to expect from the 9th Circuit.'' But he also conceded Congress had ''ducked the issues'' surrounding tribal government in the settlement act. ''It's finally coming home to roost,'' Cole said.

Tribal sovereignty activists offer a very different reading of the politics of the settlement act.

Some say the Native leaders who consciously rejected the Lower 48 ''reservation model'' for the act were distant from the reality of Native self-government that even then existed, however faintly, in rural Alaska.

''I think even the word tribe probably would have carried insulting overtones to them at that time,'' said Will Mayo, president of the Tanana Chiefs Conference. ''It's hard to describe, the dynamics of the time.''

Others contend that an explicit attempt to terminate tribes in Alaska would have touched off a huge fight. Congress, they say, shoved the issue aside in its rush to promote the trans-Alaska oil pipeline.

''They probably pushed the deal as far as they could,'' said John Sky Starkey, attorney for the Association of Village Council Presidents. ''If they insisted on a position explicitly extinguishing tribal rights, it would have been a deal breaker.''

When it agreed last week to hear the state's appeal, the Supreme Court set itself the task of sorting out the contradictions in Alaska's history.

And somewhere in the future, it may be put to Congress once again to make up its mind about the legal status of Alaska Natives.

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