Tribes and Self-Determination in Alaska

Vol. 33 No. 2

By

David Case is a partner in the Anchorage, Alaska, office of Landye Bennett Blumstein LLP, where he specializes in Native American law and policy. Dr. Dalee Sambo Dorough is a human rights advisor to the Inuit Circumpolar Conference, representing them at the UN, the Organization of American States, and other international fora.

When Congress enacted the Alaska Native Claims Settlement Act (ANCSA) on December 18, 1971, it was generally assumed that tribes did not exist in Alaska under the principles of what is generally called “federal Indian law.” Article III of the 1867 Treaty of Cession provided simply, “The uncivilized tribes [of Alaska] will be subject to such laws and regulations as the United States may, from time to time adopt in regard to aboriginal tribes of that country.” Despite its nineteenth-century ethnocentrism, the reference to the “tribes” of Alaska is significant, indicating that they are distinct peoples under principles of both international and federal domestic law.

Alaska territorial leaders and courts generally ignored the treaty’s mention of tribal existence, and post–Civil War federal Indian policy shifted from treaty making and segregation to assimilation of the Indian tribes. The pendulum of American Indian policy shifted again in the 1930s. The Bureau of Indian Affairs was delegated responsibility for Alaska Native programs in 1931. Congress extended the federal Indian Reorganization Act (IRA) to Alaska in 1936. The Bureau of Indian Affairs treated Alaska Native villages as tribes for administrative purposes, and seventy-one villages organized under the IRA in the 1940s.

Predating this northern history, the Law of Nations had evolved principles recognizing the sovereignty and territories of indigenous peoples. Tribes and nations such as the Haudenosaunee, Delawares, Shawnee, Cherokee, and others were engaged in international diplomatic negotiations culminating in a long list of treaties recognizing their distinct status and rights as indigenous peoples. These treaties recognize the existence of indigenous nations, thus weaving the parallel principles of international law into federal Indian law .

The Consequences of ANCSA

However, Congress ignored international legal principles and the existence of tribes when ANCSA was enacted. Avoiding termination and reservations, the result for Alaska Natives was a unique act that (1) extinguished aboriginal title of the tribal villages to some 365 million acres, (2) authorized transfer of some 45 million acres to state-chartered Alaska Native village and regional corporations, and (3) “comp­­ensated” those corporations in the amount of $962.5 million for “extinguishment” of aboriginal title. How­ever, neither the land nor the money went to the tribes. The regional and a few of the village corporations have since become some of the most important business enterprises in Alaska, employing thousands of people and generating some $3 billion in annual revenue from business activities around the world.

ANCSA’s more immediate effect was to transform the communal land claims of the tribes into private corporate assets. It also transformed the tribal members into corporate shareholders if they were of one-quarter native blood or more and born on or before December 18, 1971. Their descendants could still become tribal members under terms determined by the tribes but could not generally become shareholders in the corporations except by inheritance, gift, or court order, as permitted under ANCSA.

Like many indigenous land claims, the discovery of exploitable resources prompted the “settlement” of aboriginal rights and title of the Alaska Native peoples to their homelands. The enactment of ANCSA did not allow for the collective right of Alaska Native peoples to consent to the terms of the act, an essential element of self-determination under international law. In this way and many others, ANCSA represents an example of the need to address the rights of indigenous peoples in comprehensive terms and in a manner consistent with existing and emerging international human rights law.

Some of ANCSA’s most adverse pro­visions are those that purportedly extinguished aboriginal right and title to all other lands, as well as aboriginal hunting and fishing rights. The latter is most disturbing when read in context with the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both adopted by the United Nations (UN) in 1966 and both of which affirmatively state in Article 1(2), “In no case may a people be deprived of its own means of subsistence.” In 1999, the UN human rights treaty bodies responsible for reviewing compliance with the cove­nants specifically denounced the notion of “extinguishment.” Ironically, ANCSA, the instrument that intended to secure a future for Alaska Native peoples, has in fact jeopardized their distinct characteristics, status, and rights by purporting to extinguish them.

Fighting Back

Responding to the threats facing Alaska Native communities, the indigenous peoples of Alaska have taken a range of actions, including establishing an independent commission to review the impact of ANCSA, lobbying Congress for favorable amendments, litigating, and organizing and strengthening the legitimate role of tribal governments. Soon after ANCSA’s enactment, the shareholders of the ANCSA corporations in Arctic Village and Venetie voted to transfer all their lands to the federated tribal government of the two villages. This set the stage for another twenty-five years of litigation to determine the existence and scope of tribal jurisdiction in Alaska. The federated villages imposed a tax on a state school construction project in Venetie, asserting that the land was part of a “dependent Indian community” within “Indian country,” as defined under federal law and subject to tribal taxing authority.

The state sued to enjoin the tax, denying both the existence of the tribe and its authority to tax ANCSA lands. In 1993, the Department of the Interior ended decades of technical uncertainty about the status of the Alaska tribes by publishing a formal list of more than 200 federally recognized Alaska tribes. Congress ratified the list in 1994. Four years later, the U.S. Supreme Court held in Alaska v. Venetie, 522 U.S. 520 (1998), that the ANCSA lands now owned by Venetie were not “Indian country” because they had not been “set aside” for the tribe but rather for the ANCSA village corporations. Moreover, the lands were freely alienable under ANCSA and therefore not under the “superintendence” of the federal government.

The very next year, the Alaska Supreme Court, heretofore the implacable foe of tribal status and jurisdiction, held in a groundbreaking decision that “Indian country” was not required for tribal jurisdiction based on tribal membership. John v. Baker, 982 P.2d 738 ( Alaska 1999). In addition to membership matters, such as the child custody that was at issue in this case, John v. Baker suggests that Alaska tribes have jurisdiction over a range of “internal matters . . . where the tribe needs jurisdiction over a given context to secure tribal self-governance.” Id. at 756. More than thirty-five years after ANCSA’s enactment, the political jurisdiction of the Alaska Native tribes is still evolving under the principles of domestic federal Indian law.

This litigation is an example of the ways that tribal governments in Alaska have persisted and taken on ANCSA’s unfinished issues. Another example is the direct government-to-government negotiation with the state of Alaska that borrowed language of the draft UN Declaration on the Rights of Indigenous Peoples. These negotiations culminated in the Alaska governor’s promulgation of Administrative Order No. 186, which acknowledges the existence of tribes in Alaska and their distinct legal and political authority. In addition, a companion Millennium Agreement was adopted in April 2001 by tribal governments and the state executive branch. This agreement sets the stage for future working relationships between the state and the participating tribal governments.

Though the fundamental rights to participation in decision making, consent, intergenerational rights, development, and a wide range of other rights were not contemplated within the terms of ANCSA, Alaska Native tribes have remained intact and active. Rather than empowering those forces that allowed the enactment of ANCSA to deny their right to self-determination, Alaska Native tribes have remained an important economic and political force within the state. Though the political jurisdiction of Alaska Native tribes has not been fully resolved, this has not stifled the exercise of their right to self-determination under international law. Nor does it exclude the possibility of righting the wrongs of ANCSA. International law and, in particular, the UN Declaration on the Rights of Indigenous Peoples, if adopted by the UN General Assembly, have real potential for positively redefining the political and legal relationships of Alaska’s indigenous peoples.

As published in Human Rights, Spring 2006, Vol. 33, No. 2, pp.13-14.

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