If you were speeding across the Navaho Reservation in New Mexico you could be stopped by a Navaho cop, given a citation, and you'd pay your fine to a Navaho Nation court. The same could happen on most reservations in the U.S. The legal basis is part of a complex set of laws that come under the general title of "Indian Country" that provide for limited tribal sovereignty.
Indian Country may be coming to Alaska soon. Based on U.S. District Court case Akiachak vs. Salazar and findings such as those of the bipartisan Indian Law and Order Commission, the Bureau of Indian Affairs is prepared to remove regulatory language that has prevented Alaska tribes from putting their lands into BIA trust. That would allow Alaska villages the same Indian Country limited sovereignty as tribes in the Lower 48.
Indian Country is a federal concept harkening back to pre-Revolutionary laws such as King George's Proclamation of 1763, when the king declared lands east of the Appalachian Mountains to be England's and gave the tribes control of the territory west of the Appalachians. With the Revolution, the Confederation Congress Act (1783) and the six Indian Nonintercourse Acts (1790 to 1834) affirmed the concept of Indian Country.
With the Indian Wars of the 1800s and accompanying legislation such as the Dawes Act of 1871, Indian Country rights were significantly eroded. Then, before World War II, the pendulum swung the other way and legislation such as President Franklin D. Roosevelt's Indian Reorganization Act gave back many of the rights taken away. All presidents from Roosevelt through President Obama, Republican and Democrat, have generally supported the concept of limited sovereignty afforded Native Americans through Indian Country.
It has been argued that the Alaska Native Claims Settlement Act extinguished Indian Country sovereignty in Alaska in favor of the regional and village corporate model. ANCSA corporations made a lot of money for some regional and village shareholders, and some corporate entities set up nonprofits to deal with education and health issues. But, in the end, corporations are designed to make money for shareholders, not solve social problems. That takes something tougher, something like the concept of Indian Country to express values and solve problems through an indigenous legal framework.
When Alaska villages work, they are beautiful places. I have been in villages where children treat adults, including teachers, with respect and elders with a kind of reverence. Adults are cordial. The land is respected and fish and game are hallowed. In these villages, the suicide rate is almost nonexistent. But I've also been in villages that don't work and they are hell on Earth. Drug and alcohol abuse and physical abuse of all types are everyday experiences. Some are numb to yet another suicide. Most villages, of course, are somewhere between this nirvana and hell. The function of Indian Country laws is to provide limited sovereignty so local people can create their unique legal structure to solve social problems.
An example is the recent tragic trooper killings in Tanana. The accused will be dealt with through the regular justice system. But Tanana dealt with two local bullies who reportedly had a negative influence on the shooter and the community by banishing them from the village. Banishment is not in federal or state statutes and probably is not legal. It would be under Indian Country law if the village chose to enact it. Many villages, in cooperation with the state, have aspects of Indian Country such as tribal courts and these are working well. They need to be solidified in regulation to create permanent institutions.
There are limits to Indian Country legislation. The BIA must approve laws. In most civil cases, Indian Country laws apply to both Natives and Non-Natives (hence the Navaho speeding ticket) but criminal law enacted by a tribal process only applies to Native Americans.
The Parnell administration has objected to the concept of Indian Country in Alaska, in part because, if enacted, it would erode state authority and create a dual legal system on the small amount of tribal (vs. corporate) lands that would become Indian Country.
I believe Indian Country in Alaska will give extra tools for villages to deal with abusers, rein in bootleggers and run bullies out of their villages. You have until June 30 to comment; go to www.regulations.gov and search for "Alaska Natives."
Alan Boraas is a professor of anthropology at Kenai Peninsula College.
commentBy ALAN BORAAS