The din of claims and counter-claims makes it hard to sort out
what Indian country would mean for Alaska.
When the state's lawyers warned that tribal jurisdiction could
eventually extend to all 44 million acres of regional and village
Native corporation land in the state, they were engaging in legal
hyperbole.
Technically, it's possible -- if federal courts decide to tear up
past decisions and go much farther than even the far-reaching 9th
Circuit decision in the Venetie case. Much more likely is that Indian
country will extend to some portion of the 22 million acres of
village corporation land. Maybe only Venetie and a few other remote
villages will qualify under the 9th Circuit's test.
On the other side, when Native rights lawyers note that tribal
councils and courts are subject to the Indian Civil Rights Act, they
seldom add that the Supreme Court has left enforcement of most rights
to the tribes themselves, with limited federal court oversight.
Tribal advocates point to national studies that have found most
tribal governments in the Lower 48 are scrupulous about due process
and civil rights. Indian country opponents point to the exceptions
when they suggest tribal courts will not be a fair forum for hearing
grievances.
Direct parallels to Indian reservations in the Lower 48 often
don't apply. Tribal powers here will be constrained by
Alaska-specific federal laws. For instance, Native-owned lands can be
taxed under some circumstances, and the state has been given all
criminal jurisdiction in Indian country.
Even so, it's clear that life in Alaska would change in many ways
if the Venetie decision is upheld and other villages qualify for
Indian country. Among the examples:
Non-Natives could find themselves living in communities
governed by tribal councils they can't help elect.
Freedom to travel and live where one chooses could be
restricted, because tribes have the right to exclude members and
non-members from Indian country.
Local laws would be enforced by tribal judges. In some cases,
civil rules for behavior would apply to non-Natives as well.
Tribal laws and concurrent state laws could sometimes clash.
Although the Indian Civil Rights Act extends most
constitutional protections to tribal members, there is little
federal court access for a tribal member who feels his rights have
been violated.
State and local land-use regulations would be pre-empted by
tribal rules. Tribes could adopt tougher or easier logging buffer
requirements along salmon streams, billboard rules along state
highways or subdivision rules along the Kenai River.
Tribes may assert the right to set their own hunting rules in
Indian country, which could disrupt state management goals and
hunting seasons on adjacent lands. But lawyers on both sides say
the power to regulate hunting -- usually a treaty right in the
Lower 48 -- remains uncertain in Alaska, where Congress has
extinguished aboriginal hunting rights. They say tribal control of
fishing will be even harder to assert.
Tribal bingo games are freed from state regulations that
restrict other nonprofit bingo operators. Indian country also
provides a land base for high-stakes gambling, though tribal
casinos won't come to Alaska unless the Legislature legalizes
casino games.
Native corporations could clash with tribal councils over
regulations or taxes imposed on corporate lands.
Taxes could be imposed on companies doing business in Indian
country without the limits and uniformity the state places on
municipalities.
On the other hand, tribes may be able to shelter companies
from state and local taxes, promoting local development but
cutting off tax revenues to support borough-funded schools.
Without careful contract wording, disputes over local-hire
rules or other tribal laws could end up in the tribe's own court
-- or in futile protests against sovereign tribes immune from
lawsuits.
