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Rural Alaska

Walker inherits a full plate of Alaska Native issues

  • Author:
  • Updated: May 31, 2016
  • Published December 6, 2014

BETHEL -- Tribal courts. Management of fishing and hunting. The possibility of Indian Country.

Big issues loom for Gov. Bill Walker when it comes to the state's relationship with tribes and Alaska Native people.

He's vowed to improve communications and connections between the state and tribes that were damaged during the litigious Parnell administration and before. While Walker still is exploring what course to take, his transition team, tribal leaders and advocates have a bounty of ideas.

"I really want to find a way of getting that dialogue with them that I hope will lead to a much better relationship," Walker said in a recent interview about Alaska tribes. "I'll look at everything."

Advocates hope that Walker will drop court challenges and stop suing over tribal and Native rights issues, areas in which the Parnell administration pushed without success. Challenges have concerned subsistence rights, voting rights, tribal court authority and Indian Country.

The state's relationship with tribes is still evolving 21 years after the U.S. Department of the Interior published a list that now includes 229 official Alaska tribes -- more than in any other state.

The U.S. Indian Law and Order Commission last year blasted the state for a system of centrally controlled government that it said failed to provide adequate safety and justice in Bush Alaska. The system, in which many villages lack any law enforcement presence, contributes to high rates of domestic and sexual violence, and glaring gaps in law enforcement in villages, the commission's report said.

A group of Alaska leaders that first studied rural governance 15 years ago last month issued a new report that declared the state's structure "unfinished business." It is fatally flawed for cutting off local control of lands that had been stewarded by Alaska Natives for thousands of years, the report by the reconvened Rural Governance and Empowerment Commission said.

"Excluding Native and rural people from the management of these lands is a perpetuation of colonial governmental structures," said the commission, which included a wide range of representatives from tribes and Alaska Native corporations, universities and businesses, local and federal governments.

When Walker's transition advisers hunkered down over a long weekend before he was sworn in, the No. 1 priority of the intergovernmental panel was to put tribal and state relations on a formal "government-to-government" basis, said Liz Medicine Crow, president of the First Alaskans Institute and chair of that transition working group.

The panel called for a structure that's "friendly, formal and forever," she said.

Two Alaska governors, both Democrats, have formally recognized tribes. Steve Cowper in 1990 issued a limited administrative order and Tony Knowles crafted a more expansive one in 2000 midway through his second term based on the work of his rural governance commission.

A government-to-government relationship can mean anything from a signed agreement recognizing a tribal court to sanctioning broad tribal jurisdiction over lands, or Indian Country, which courts have ruled generally doesn't exist in Alaska though a new strategy for it is emerging, said tribal advocates.

The transition panel didn't define "government-to-government" but supported it as a way to improve services and protections for Alaskans in rural villages, Medicine Crow said.

"That has the potential for being a significant break from at least a decade of hostile state administrations towards aspirational tribal governance issues," said Heather Kendall-Miller, an Athabascan and longtime attorney with the Native American Rights Fund.

"It's not so much about the authority and the power that the outcome is really focused on," said Medicine Crow, who is Haida and Tlingit. "It's on the people themselves, getting the protections that they deserve, that they have a right to."

Walker said his mind is open to formal recognition of tribes but he wants to work carefully and understand the impacts not only on the Native organizations, but also municipalities and the state.

"That may be a goal but how we are going to get there is going to take a little bit of time," Walker said.

Tribal adviser

One early decision will concern a key staff position. Will Walker, who won as an independent, simply hire a rural affairs coordinator, as did Republican former Govs. Sean Parnell and Sarah Palin? Or will he designate the post as "tribal relations" or even create by executive order a new Alaska Native affairs agency, as some of his advisers are urging?

Lower oil prices and plummeting state revenues may prevent creation of a new government office, Walker said, but he still intends to have someone advocating for rural Alaska with a strong, effective voice.

Already he has appointed Valerie Davidson - who is Yup'ik, a member of the Bethel tribe, and a lawyer experienced in health policy -- as commissioner of health and social services, overseeing an area where tribes play a role in child custody, foster care and adoption cases. He just named his former running mate, Craig Fleener, a Gwich'in Athabascan from the village of Fort Yukon, to serve as a special assistant on Arctic policy.

In the Parnell administration, John Moller, an Aleut from Unalaska, served as rural affairs adviser and it was a high-level Cabinet position, Moller said in an interview. But the focus of Parnell's rural advisory committee wasn't on the long-standing issues of subsistence and tribal authority, but rather on trying to create economic opportunity in rural Alaska.

"We never got that far," Moller said. "Had we gotten another four years, I certainly would have helped drive that discussion."

Fish factor

A promising arena for Walker concerns the thorny issue of subsistence rights.

His transition group on the topic supported a new system to manage fishing and hunting for subsistence purposes that would include tribes, the state and the federal governments working together, said John "Sky" Starkey, the group's chair and an attorney who often represents tribal interests and has fought the state over subsistence.

In village Alaska, subsistence is not an abstract term but rather a deep-rooted part of life and culture: fishing and hunting through summer and fall to fill drying racks and smokehouses, freezers and storage bins. This summer, emotions ran high when managers shut down fishing for king salmon on both the Yukon and Kuskokwim rivers to protect declining runs.

The transition group said the current two-headed system with the federal government managing seasons and limits in federal areas and the state managing others must be discarded. The conflict arises because federal law establishes a rural, subsistence priority for fish and game in times of shortage, while the state constitution says all Alaskans get equal access.

Tribes have been pushing for control and just last month the federal government announced an experiment to jointly manage Kuskokwim salmon runs with tribal organizations.

The agreement on a new approach was remarkable, said those on the Walker transition team, which included not only tribal advocates but those who have been on the opposite side, including the leader of the Alaska Outdoor Council, a sportsmen's group.

Tribal involvement is key, Starkey said in an interview.

"Without that being part of a solution, in my view we will never get to a solution," he said.

Walker said he wanted to review the transition team's written report on subsistence before making any decision.

Native Country?

Both the U.S. Indian Law & Order Commission and the Rural Governance and Empowerment Commission support some version in Alaska of Indian Country, which would limit state authority and give tribes more power over law enforcement, courts and possibly more.

It could be developed in a new way that includes Alaska Native corporation lands, tribal lands and Native allotments -- a form of "Native Country," the governance commission said.

Alaska's structure of Native lands is unique. The 1971 Alaska Native Claims Settlement Act settled aboriginal land claims to make way for the trans-Alaska pipeline and created regional and village corporations instead of reservations. The law provided for the distribution of 44 million acres of land and nearly $1 billion to the Native corporations. While backers say that was intended to integrate Alaska Natives into the dominate economy, detractors say it separated Natives from control over their traditional lands.

Among the questions before Walker is whether to drop the state's appeal in a complicated Washington, D.C., case involving tribal lands. The case could dramatically expand tribal sovereignty in Alaska, said Bob Anderson, a law professor and director of the Native American Law Center at the University of Washington who has worked on Alaska Native rights cases.

At issue is whether the Department of Interior can take lands owned by Alaska tribes into trust, the type of legal status that covers reservations. The state intervened to fight such action.

If the tribes seeking the establishment of trust lands win, it could create an Indian Country patchwork, Anderson said.

A district judge ruled for the tribes, but any action regarding Alaska tribal land is on hold during the state's appeal.

Knowles fought Indian Country as governor in the Venetie case, which ended with the U.S. Supreme Court ruling in 1998 that Indian Country didn't exist in Alaska. He said he supported tribes, but still believes that the Native corporation structure set up in Alaska precludes an evolution to Indian Country.

Walker, a lawyer who specialized in oil and gas issues, said he needed to evaluate the prospects of Indian Country here.

"This is a significant issue that I will review with my attorney general and others regarding the pending litigation," the governor said Saturday in an emailed response to questions.

But generally, he said the Parnell administration too often jumped into court too soon. His inclination is to stop suing at every turn.

Parnell strategy

Walker also can consider whether to reverse Parnell's course and recognize tribal court decrees in family law cases, which would correspond with a string of court rulings, Anderson said.

The Parnell administration fought tribal court authority largely over whether it extended to people who weren't tribal members at the same time it was quietly working with tribes to improve services like foster care. Tribal courts largely work in family law matters, and courts have ruled they have jurisdiction if the child is a tribal member or could be, tribal rights lawyers said.

In one case, state lawyers sought to void a Minto tribal court order declaring a man who had broken his girlfriend's ribs an unfit parent. The Alaska Supreme Court rejected the state's argument.

"Really, the state has lost every time. It's such a waste of state resources," said Natasha Singh, general counsel for the Tanana Chiefs Conference in Fairbanks.

But in other ways, Parnell recognized tribal courts. His administration was working on an agreement with Tanana Chiefs to allow tribal courts to handle domestic violence cases and first-time misdemeanor offenders through civil proceedings, Moller, the former rural affairs adviser, said.

"We didn't get to stick around long enough to finish that," he said.

There were sticking points, Singh said.

"I wouldn't describe it as 'we were close to signing,' " she said.

A shift to tribes

Walker will step in with some groundwork already laid. In December 2013, the state signed an agreement with Tanana Chiefs Conference that allows the nonprofit Native-led Interior organization to receive federal dollars directly for children in tribal foster homes.

The agreement was a first for Alaska, according to Tanana Chiefs and the state Department of Health and Social Services.

"It more or less is that government-to-government relationship," Christy Lawton, director of the Office of Children's Services, said in a recent interview. Her agency still will investigate reports that children are in danger, but if intervention is needed, the state now can send those Interior cases to tribes. Before, the tribes were limited to working with families that they came across separately from the state system, Lawton said.

Still, the small experiment is just beginning to work, she said. Individual tribes had to sign agreements, too. Court forms for placing children had to be approved.

Now with Walker on board, there's an opportunity to expand, Lawton said. Her overloaded agency needs and welcomes tribal partners, she said.

The Bethel-based Association of Village Council Presidents, the Bristol Bay Native Association in Dillingham and Southeast's Central Council of the Tlingit and Haida Indian Tribes of Alaska are farthest along, she said.

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