|
(Cite
as: 1996 WL 376107 (Alaska A.G.))
Office
of the Attorney General
State
of Alaska
*1
File No. 663-96-0521
January
11, 1996
Re:
Tribal Status Issues
The
Honorable Gail Phillips
Alaska
House of Representatives
State
Capitol
MS
3100
Juneau,
AK 99801
Dear
Speaker Phillips:
At the conclusion of the Joint House-Senate Judiciary Committee hearing
on tribal status held on December 4, 1995, I pledged
to provide additional information
about this important issue. This information is also being provided
to legislators who did not participate in the committee hearing
as a follow-up to my letter of November 27, 1995,
on tribal status issues.
Let me emphasize once again that the decision by the
Knowles Administration to withdraw the challenge to federal recognition of
tribes in Alaska was not driven by litigation considerations. Instead,
it was motivated by a commitment to working with Alaska
villages to achieve a healthier, safer environment in which the
community is an active participant in solutions. Litigation over the
issue of tribal status was viewed as a major impediment
to this state-local partnership.
Nevertheless, the Administration's decision to not pursue the litigation over
tribal status is also supported by events that, taken together,
lead one to conclude that the probability of prevailing in
the federal courts was extremely low. Very few human endeavors
are static. In this instance, litigation over tribal status began
in the 1980's because, in the absence of any clear
federal expression that tribes existed in Alaska, the state was
unwilling to accept each and every assertion of tribal status.
As discussed further below, there has been extensive federal activity
in the last two years that justified a fundamental reevaluation
of the state's posture in the litigation.
THE
FRAMEWORK FOR FEDERAL RECOGNITION OF TRIBES
Historically, the Alaska Supreme Court has held that for the
most part, except for Metlakatla, no tribes exist in Alaska.
The court extended sovereign immunity to Metlakatla in Atkinson v.
Haldane, 569 P.2d 151 (Alaska 1977), holding:
Once the [federal] executive branch has determined that the Metlakatla
Indian Community is an Indian tribe, which is a non-justiciable
political question, the community is entitled to all of the
benefits of tribal status.
569
P.2d at 163.
More recently, the court has declined to find sovereign immunity
or has concluded that, if it did exist, it was
waived by the tribe. These cases include Nenana Fuel v.
Native Village of Venetie, 834 P.2d 1229 (Alaska 1992); Hydaburg
Coop. Ass'n v. Hydaburg Fisheries, 826 P.2d 751 (Alaska 1992);
Native Village of Stevens v. Alaska Management & Planning, 757
P.2d 32 (Alaska 1988); and Native Village of Eyak v.
GC Contractors, 658 P.2d 756 (Alaska 1983). No case, however,
has questioned the fundamental holding of Atkinson v. Haldane.
Four events have occurred since the Alaska Supreme Court's last
decisions in 1992 that suggest the court would, if presented
the question, decide tribal status issues differently today, in keeping
with its decision in Atkinson. Those events are: (1) the
Secretary of Interior's tribal listings published in 1993
and 1995; (2) Congress' enactment of the Federally Recognized Indian
Tribe List Act of 1994; (3) Judge H. Russel Holland's
decision in Native Village of Venetie v. State, No. F86-0075
CIV (HRH), issued December 23, 1994, holding that the Native
Village of Venetie Tribal Government is an Indian tribe under
the common law criteria; and (4) Judge Holland's decision in
the same Venetie case on the tribal status of Fort
Yukon issued on September 20, 1995.
Department
of Interior's 1993 and 1995 Tribal Lists
*2
In 1993, the executive branch of the federal government took
a significant step intended to remove any ambiguity as to
the tribal status of certain Alaska Native entities. On October
21, 1993, the Secretary of Interior published a list of
more than 220 Alaska Native villages identified as having the
same status as tribes in the contiguous 48 states. The
preamble to the 1993 list expressly declared:
The purpose of the current publication is to publish an
Alaska list of entities conforming to the intent of 25
C.F.R. 83.6(b) and to eliminate any doubt as to the
Department's intention by expressly and unequivocally acknowledging that the Department
has determined that the villages and regional tribes listed below
are distinctly Native communities and have the same
status as tribes in the contiguous 48 states. Such acknowledgment
of tribal existence by the Department is a prerequisite to
the protection, services, and benefits from the Federal Government available
to Indian tribes. This list is published to clarify that
the villages and regional tribes listed below are not simply
eligible for services, or recognized as tribes for certain narrow
purposes. Rather, they have the same governmental status as other
federally acknowledged Indian tribes by virtue of their status as
Indian tribes with a government-to-government relationship with the United States;
are entitled to the same protection, immunities, privileges as other
acknowledged tribes; have the right, subject to general principles of
Federal Indian law, to exercise the same inherent and delegated
authorities available to the other tribes; and are subject to
the same limitations imposed by law on other tribes.
58
Fed. Reg. 54365-54366 (Oct. 21, 1993) (footnote omitted; emphasis added).
The tribal list published by the Secretary on February 16,
1995, reinforces this intent. The preamble to the 1995 list
states that it constitutes the list of "federally acknowledged tribes
in the contiguous 48 states and in Alaska.'' 60 Fed.
Reg. 9250 (Feb. 16, 1995). The preamble further points out
that subsequent to the publication of the 1993 list, Congress
enacted the List Act of 1994 in which "Congress confirmed
the Secretary's authority and responsibility to establish a list of
Indian tribes and mandated that
he publish such a list annually." The updated 1995 list
was published in response to that Congressional mandate. 60 Fed.
Reg. at 9251.
The
List Act of 1994
In late 1994, Congress was called upon to address the
1993 tribal list because of the Department of Interior's failure
to include two tribes on the earlier list. One of
the excluded tribes was the Central Council of Tlingit and
Haida Indian Tribes of Alaska.
The result was enactment of the "Federally Recognized Indian Tribe
List Act of 1994." Public Law 103-454; 25 U.S.C. 479a.
In the List Act of 1994, Congress directed that the
Secretary annually publish a list of federally recognized tribes; under
the Act, once recognized, an Indian tribe may be terminated
only by an act of Congress. Title II of the
Act noted that the Secretary's 1993 list did not include
the Central Council and expressly reaffirmed the federal recognition of
that tribe.
*3
The House Natural Resources Committee report accompanying the legislation discusses
the October 21, 1993, list of Alaska Native tribes and
notes the continuing controversy over the existence of "Indian country"
in Alaska. House Report No. 103-781; 1994 U.S. Code Cong.
and Adm. News, p. 3768. The committee emphasized that the
Act is neutral on the Indian country issue:
"The Act merely requires that the Secretary continue the current
policy of including Alaska Native entities on the list of
Federally recognized Indian tribes which are eligible to receive services."
Id. at 3771.
The
December 23, 1994, Decision in the Venetie Case
On December 23, 1994, Judge Holland ruled that the Native
Village of Venetie Tribal Government (encompassing the Native Village of
Venetie and Arctic Village) is a tribe based on the
federal common law criteria. Those criteria are: (1) the group
is a group of Indians of the same or similar
race; (2) it is united in a community; (3) it
operates under one leadership or government; (4) it inhabits an
area of some reasonable definition; and (5) it is the
modern day successor to an historical sovereign entity which exercised
at least minimal government functions. In applying these criteria to
the evidence presented at trial, the court took a broad
view of each one making it unlikely that any village
would fail to meet the test.
The
September 20, 1995, Decision in the Venetie Case (Fort Yukon)
The 1993 and the 1995 tribal lists, as well as
the List Act of 1994, were considered by the U.S.
District Court for Alaska when it was called upon to
decide
Fort Yukon's tribal status in the Venetie case. The state
contested Fort Yukon's inclusion on the 1993 and 1995 lists
because, in identifying the listed villages, the Secretary of Interior
had failed to follow the Department of Interior regulations necessary
to achieve tribal recognition.
In a decision issued on September 20, 1995, the court
rejected the state's argument. The court held that the Secretary
of Interior has the power to recognize tribes as a
result of the historical acquiescence of Congress. The federal regulations
established a procedure for unrecognized tribes themselves to initiate proceedings
to gain the Secretary's recognition. However, the court concluded, this
is not the exclusive means by which a tribe may
receive federal recognition, and "[t]he Secretary himself need not use
this regulatory scheme, but may recognize a tribe due to
his historically acquiesced power." Order, September 20, 1995, at 9.
The court found that the ambiguity surrounding the status of
the Alaskan entities on the tribal lists published by Interior
from 1982 to 1988 was resolved by the publication of
the October 21, 1993, list: "the executive's intent was clearly
announced" on that date. Id. at 8. Thus, as of
that date, the Native Village of Fort Yukon (as well
as the other entities on the list) became a federally
recognized tribe.
The court found support for its ruling on the tribal
status of Fort Yukon in the List Act of 1994,
stating:
*4
Congress repudiated a decision by the Secretary to remove two
Alaskan tribes
from the Secretary's 1993 list of recognized tribes. Congress did
not, however, repudiate any other portion of the 1993 list.
Congress actually referred to the 1993 list and ordered the
two tribes returned to it. Tribe List Act, section 202(2).
This leads to the conclusion that Congress approved of this
list.
Order,
September 20, 1995, at 10.
On October 20, 1995, the state moved for reconsideration of
the court's decision, thus precipitating a careful policy review by
Governor Knowles. The state's motion for reconsideration was later withdrawn.
The plaintiffs also moved for reconsideration, arguing that Fort Yukon
was a federally recognized tribe by virtue of its inclusion
on the Department of Interior's tribal lists published from 1982
to 1988. On December 12, 1995, Judge Holland issued a
decision reaffirming his previous ruling. The court stated that it
had reconsidered its order of September 20 on the tribal
status of Fort Yukon and concluded that it had made
no error of fact or law in that order. The
court reiterated its holding that as of October 21, 1993,
Interior clearly declared the listed villages, including Fort Yukon, to
be federally acknowledged tribes.
THE
STATUS OF THE "INDIAN COUNTRY" ISSUE
In two recent decisions issued by Judge Holland, the Venetie
case and the Kluti
Kaah case, the court held that ANCSA lands are not
Indian country. Both of these cases have been appealed to
the Ninth Circuit Court of Appeals. As I stated in
my November 27, 1995, letter, the Knowles Administration will defend
Judge Holland's decisions in the Indian country cases on appeal.
The Venetie Indian country case arose out of Venetie's effort
to impose a business activities tax on a school construction
project in the village. The ability of a tribe to
tax depends on the tribe having a territory, i.e., Indian
country, over which it exercises jurisdiction. In August 1995, Judge
Holland determined that the ANCSA lands owned by Venetie are
not Indian country. Thus, the tribe cannot impose a tax
on construction projects on ANCSA lands.
On November 28, 1995, Judge Holland ruled that the Kluti
Kaah Native Village of Copper Center neither owns nor occupies
land constituting Indian country. Therefore, Kluti Kaah lacks jurisdiction to
impose a business activities tax on the section of the
TransAlaska Pipeline System running through the area.
The essence of the Venetie and Kluti Kaah Indian country
decisions is: (1) the test for Indian country is whether
the land has been validly set apart for the use
of Indians as such, under the superintendence of the federal
government; (2) it is the tribe, not the land, that
must be under federal superintendence; (3) following ANCSA, Alaska Native
tribes are not subject to the degree of Congressional and
Executive agency control that evidences an intention that the federal
government, rather than the state, be the dominant political
institution in the area and are therefore not under the
superintendence of the government; and (4) under the terms and
structure of ANCSA, land conveyed to ANCSA corporations cannot be
said to have been set aside for the use of
Natives as such, and therefore is not Indian country.
*5
While the decision to not pursue litigation over tribal recognition
may focus the debate on the Indian country issue, it
does not dilute the state's arguments on that issue. The
federal court has already rejected arguments that tribal status establishes
the existence of Indian country. As stated by the Department
of Interior in its preamble to the 1995 list, "[i]nclusion
on the list does not resolve the scope of powers
of any particular tribe over land or non-members. It only
establishes that the listed tribes have the same privileges, immunities,
responsibilities and obligations as other Indian tribes under the same
or similar circumstances . . ." 60 Fed. Reg. at
9251. The department then noted the opinion of the Solicitor
of the Department of Interior, which concluded, construing general principles
of federal Indian law and ANCSA,
that ANCSA largely controls in determining whether any territory still
exists over which Alaska villages might exercise governmental powers. We
also conclude that, notwithstanding the potential that Indian country still
exists in Alaska in certain limited cases, Congress has left
little or no room for tribes in Alaska to exercise
governmental authority over land or nonmembers.
60
Fed. Reg. at 9251 n.1 (quoting Opinion of the Solicitor
of the Department of Interior, Thomas Sansonetti, M-36975, at 108,
January 11, 1993). See also 58 Fed. Reg. at 54366
n.1.
SUMMARY
OF ISSUES ADDRESSED
During the December 4 hearing, additional information was requested on
a number of issues. One of the items requested was
a list of tribal powers. Many of the issues discussed
below concern the scope of powers of a recognized tribe
without Indian country (i.e., tribal authority over internal affairs and
domestic relations of tribal members; the treatment of tribes under
the Clean Water Act; sovereign immunity; alcohol control; criminal law
enforcement; Indian gaming; and fish and game management). Questions were
also raised concerning the relationship of certain sections of the
Statehood Act and the Alaska Constitution to tribal recognition; the
federal statutes in which Alaska Native villages are defined as
tribes for specific federal purposes; and the budgetary impacts of
the tribal status litigation. These questions are discussed below as
well.
Before going into those issues, however, let me reiterate what
I stated in my letter of November 27 on tribal
recognition generally. Tribal recognition is a federal,
not a state, function. Tribal recognition means that Alaska's tribes
are eligible to receive funding and services from the federal
government, are able to set rules for tribal membership and
the domestic relations of their own members, and are immune
from suit. Governmental powers such as the right to tax,
manage fish and game, and prosecute criminal cases are only
applicable in Indian country; in other words, without Indian country,
tribes have no jurisdiction to exercise such powers.
Tribal
Authority over Internal Affairs
*6
It is well established in federal Indian law that each
tribe has the power to set its own membership criteria.
Identification of a person as a member of an Indian
tribe is an issue solely within the control of the
tribe, and perhaps the individual. Tribes can also choose the
structure within which they govern themselves. They may consider traditional
tribal councils, IRA councils, or some form which combines traditional
and modern factors. Traditional councils and IRA councils are not
subject to most state laws. Limitations on tribal action are
governed by the Indian Civil Rights Act (ICRA), 25 U.S.C.
§ 1301,
and by Congress.
Child
Protection - Indian Child Welfare Act Matters
The Division of Family and Youth Services, Department of Health
and Social Services, responds to reports of harm regarding child
abuse and neglect. Reports concerning Native children involve those living
in villages, those living in urban areas, and those whose
families travel back and forth. All of the villages listed
in ANCSA have long been recognized as "Indian tribes" for
purposes of the Indian Child Welfare Act (ICWA). See 25
U.S.C. 1903(8). Therefore, state acceptance that the listed Native villages
are tribes does not change DHSS's longstanding practice of notifying
tribes regarding Alaska Native children who come under the child
protection statutes and the tribes' right to participate in state
court child protection cases.
Not all tribes participate in state court ICWA cases involving
their children. This happens for many reasons, including lack of
funds, agreement with the state's position, and concern about lay
representation instead of representation by counsel at state court proceedings.
Over the years the state has entered into formal agreements
with a number of tribes regarding how they will interact
in child protection cases, from the earliest reports through the
completion of each case. Some tribes have not signed the
agreements because they do not address tribal jurisdiction.
The issue of jurisdiction under ICWA bears some discussion. Through
ICWA, "Congress created a comprehensive jurisdictional scheme for the resolution
of custody
disputes involving Indian children. This scheme expanded the role of
tribal courts and correspondingly decreased the scope of state court
jurisdiction." Native Village of Venetie I.R.A. Council v. Alaska, 944
F.2d 548, 555 (9th Cir. 1991). For instance, under ICWA,
jurisdiction is exclusive in the tribe when the child custody
proceeding involves Indian children who reside on their tribal reservations
(exclusive jurisdiction requires proof of Indian country). In the case
of Indian children who do not reside or are not
domiciled on their tribe's reservation, the state court may exercise
jurisdiction (at least) concurrent with the tribal court. However, the
state court must refer the dispute to the tribal court
unless good cause is shown for the retention of state
court jurisdiction.
For tribes in some states, the exclusive and referral jurisdiction
provisions of ICWA took effect automatically. However, tribes located within
Public Law 280 states, which include Alaska, can invoke such
jurisdiction only after petitioning the Secretary of the Interior and
having been granted jurisdiction. Public Law 83-280 (commonly referred to
as Public Law 280) gave enumerated states concurrent jurisdiction over
criminal and civil matters involving Indians, where jurisdiction had previously
vested only in federal and tribal courts. The civil portion
of this statute is codified at 28 U.S.C. § 1360.
*7
The Alaska Supreme Court and the federal courts are not
in agreement on their interpretation and application of Public Law
280 in the ICWA context. The
disagreement is over whether, under Public Law 280 and ICWA,
the state has exclusive jurisdiction or concurrent jurisdiction over child
custody determinations when the tribe has not petitioned the Secretary
for reassumption of jurisdiction.
The Alaska Supreme Court has held that, under Public Law
280, tribal courts in Alaska have no child custody jurisdiction
(and the state court has exclusive jurisdiction) unless the tribe
has petitioned for reassumption of jurisdiction under ICWA. Matter of
F.P., 843 P.2d 1214 (Alaska 1992); In re K.E., 744
P.2d 1173 (Alaska 1987); Native Village of Nenana v. Department
of Health and Social Serv., 722 P.2d 219 (Alaska 1986).
In Alaska, only the Metlakatla Indian Community has petitioned for
and been granted such jurisdiction.
The Ninth Circuit has held that under ICWA and Public
Law 280, a tribe that has not petitioned for exclusive
or referral jurisdiction may exercise concurrent jurisdiction with the state
over child custody cases. Village of Venetie I.R.A. Council, 944
F.2d at 561-562. The F.P. case was decided after, and
explicitly declined to follow, the Ninth Circuit's holding in Village
of Venetie that any Alaska Native entity that proved itself
a tribe retained inherent power over child welfare without going
through the reassumption process.
Therefore, the state courts and agencies currently cannot, under Alaska
law, agree that any Alaska Native tribe other than Metlakatla
may assert exclusive jurisdiction
under ICWA, 25 U.S.C. § 1911(a).
Similarly, the Alaska courts cannot order the transfer of a
case from state court to a tribal court, even though
courts in other states have been transferring cases to tribal
courts in Alaska for years.
Cultural
Adoptions
The state currently issues substitute birth certificates when the appropriate
parties attest that a cultural, or customary, adoption has taken
place. Such adoptions, which are recognized under both federal and
state law, are a traditional practice in which, for a
variety of reasons, responsibility for a child is shifted from
the natural parents to others. Before a substitute birth certificate
can be issued, both natural parents must sign a state-provided
form identifying the child and the child's tribe and affirming
that an adoption has occurred under tribal custom. In addition,
the governing body of the child's tribe must certify, in
writing, that the adoption has followed tribal custom.
The legal effect of issuing the substitute birth certificate is
unclear, as is the legal effect of a cultural adoption
in any given tribe. The state does not recognize tribal
court adoptions because of the existing Alaska case law mentioned
above, although the federal court has ordered the state to
give full faith and credit to the adoption decrees of
the Native Village of Venetie to the
same extent it gives full faith and credit to adoption
decrees from other jurisdictions. Native Village of Venetie, I.R.A. Council
v. State, Memorandum of Decision, December 23, 1994. The court
will be issuing a similar order regarding adoption decrees of
the Native Village of Fort Yukon in the Fort Yukon
portion of the Venetie case.
Marriage,
Divorce, and Child Custody
*8
A tribe's authority over the domestic relations of its members
may prompt regulation of marriage and divorce and setting of
tribal rules for each relationship. As tribes increasingly regulate the
relationships of their members, they may perform more marriages and
divorces and make more child custody decisions. Since Alaska is
a Public Law 280 state, state courts have at least
concurrent jurisdiction over family matters. This may lead to jurisdictional
questions between the state courts and tribes which will need
to be resolved.
The
Clean Water Act and Indian Tribes
A question was raised concerning whether Alaska's tribes may be
treated as "states" under the Clean Water Act. Under the
longstanding federal interpretation
of the Act, the answer is "no," except for the
Metlakatla Indian Community, because "treatment as a state" is limited
to federal Indian reservations.
The Federal Water Pollution Control Act, more commonly known as
the Clean Water Act, contains two sections expressly dealing with
Native Americans. Section 113, which was part of the 1972
Act, is entitled "Alaska village demonstration projects." It authorizes the
EPA to enter into agreements with the State of Alaska
to carry out safe water projects and pollution control projects
in "Native villages of Alaska." "Village" is defined to mean:
an incorporated or unincorporated community with a population of ten
to six hundred people living within a two-mile radius.
33
U.S.C. § 1263(g).
Section 113 also authorizes federal executive agencies to coordinate with
the State of Alaska and "appropriate Native organizations" to develop
comprehensive sanitation programs in the Native villages. The term "Native
organizations" is defined by reference to the Alaska Native Claims
Settlement Act. Id. at (e). Thus, the Clean Water Act
has long recognized Alaska Natives as such.
In 1987, Congress added section 518 to the Act. 33
U.S.C. § 1377.
Entitled "Indian Tribes," section 518 authorizes the EPA to promulgate
regulations specifying how the agency will treat tribes in the
same manner in which it treats states. [FN1]
The statute specifies those programs in which an
Indian tribe can be treated as a state and also
lists three criteria that must be met to attain such
status. Id. at (e). Essentially, a tribe may develop water
quality standards and issue effluent permits only if: (1) the
tribe has a governing body carrying out substantial governmental duties;
(2) the affected water resources are held by or for
the tribe or a tribal member "or [are] otherwise within
the borders of an Indian reservation"; and (3) the tribe
has the technical and legal ability to carry out the
mandates of the Clean Water Act.
Section 518 expressly refers to Alaska Natives in several contexts.
Some funds are expressly reserved for "Alaska Native Villages as
defined in [ANCSA]." 33 U.S.C. § 1377(c).
Subsection (g) expressly disclaims any effect section 518 may have
on "the scope of the governmental authority, if any, of
any Alaska Native organization, including any federally-recognized tribe . .
." Notwithstanding these two references, it is doubtful that section
518 applies to any Alaska Native tribe other than the
Metlakatla Indian Community because, as explained below, the section appears
to be limited to "reservations." See subsections (e)(2) and (h)(1).
*9
Pursuant to section 518, EPA has promulgated "treatment as a
state" regulations. One set of rules governs tribal establishment of
water quality standards. 40 C.F.R. 131, 56 Fed. Reg. 64875--96
(1991). Another pertains to dredge and fill permits (wetlands). 40
C.F.R. parts 232 and 233,
58 Fed. Reg. 8171 (1993). Another pertains to financial grants.
40 C.F.R. parts 35 and 130, 54 Fed. Reg. 14354
-- 60 (1989). The most recent publication of which we
are aware "specifies how Tribes will be treated in the
same manner as States for various provisions of the CWA."
40 C.F.R. 122, 123, 124 and 501, 58 Fed. Reg.
67966 (1993).
A reading of the most recent rule shows EPA only
treats tribes as states on matters related to resources within
a reservation. [FN2]
Thus, because Metlakatla is the only reservation tribe in Alaska,
the decision to no longer contest the tribal status of
Alaska Native villages on the 1993 and 1995 lists of
federally recognized tribes will have no impact under the Clean
Water Act "treatment as a state" provisions.
Sovereign
Immunity
One of the attributes tribes enjoy is sovereign immunity. See,
e.g., Native Village of Eyak v. GC Contractors, 658 P.2d
at 758. This immunity extends to corporations created by the
tribe, such as those chartered under the Indian Reorganization Act.
The most common Native corporations in the state currently are
ANCSA corporations, which do not enjoy sovereign immunity because they
are state-chartered corporations.
Sovereign immunity bars suits against tribes. It also bars cross-claims
and counterclaims.
United States v. U.S. Fidelity & Guar. Co., 309 U.S.
506, 512 (1940). It does not bar suits against individual
tribal officials. Congress can waive the tribes' sovereign immunity, but
the waiver must be clearly expressed and strictly construed. See
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Turner
v. U.S., 248 U.S. 354 (1919).
The extent to which and manner in which tribes can
waive their sovereign immunity is less clear. The Alaska Supreme
Court has held that tribes can waive their sovereign immunity
by contract. Nenana Fuel v. Native Village of Venetie, 834
P.2d at 1233; Native Village of Eyak v. GC Contractors,
658 P.2d at 759. However, federal law requires that to
waive immunity by contract in matters relating to trust property,
tribes must receive Secretarial or Congressional consent.
With respect to environmental laws, the federal courts generally hold
that Congress has abrogated tribal sovereign immunity when the United
States seeks to enforce federal environmental laws against tribes. Therefore,
a tribe operating a business would not be immune from
federal environmental standards and requirements. However, state enforcement of its
standards and requirements against such an entity may be problematic.
A few Native groups in Alaska have claimed sovereign immunity
in response to efforts by ADEC to enforce the state's
"little superfund law," AS 46.03. This could be an area
of dispute with tribes in the future.
Alcohol
Control
*10
Under state law, both Native and non-Native residents of rural
villages have been delegated significant authority to control the use
of alcohol. AS 04.11.490--04.11.506. In addition to adopting restrictions on
alcoholic beverages, "local governing bodies" may protest the issuance, transfer,
relocation, or renewal of liquor licenses. Currently, the Alcoholic Beverage
Control Board regulates the licensing of establishments that manufacture, sell,
or otherwise deal in alcoholic beverages, including those located within
Native villages.
If a particular tribe were recognized as having control over
an area of Indian country, that tribe could adopt alcohol
ordinances for enforcement in its tribal courts. In addition, the
tribe could choose to adopt ordinances regulating the sale, importation,
or possession of alcoholic beverages within its Indian country through
a federal process instead of the state process, thereby making
the ordinance enforceable by a federal court. See 18 U.S.C.
§ 116.
Otherwise, federal and state laws concurrently govern the control and
regulation of alcoholic beverages in Indian country. Rice v. Rehner,
463 U.S. 713 (1983).
Criminal
Law Enforcement
Tribal recognition alone does not confer tribal jurisdiction over any
criminal act. The criminal jurisdiction of a tribe is limited
to the territory it controls. Without territorial jurisdiction, i.e., Indian
country, a tribe has no criminal jurisdiction.
A tribe can exercise criminal jurisdiction over its members within
Indian country. Where Indian country exists, tribes have the power
to make their own criminal laws and enforce them in
tribal courts unless Congress limits that power. U.S. v. Wheeler,
435 U.S. 313 (1978). The Indian Civil Rights Act, 25
U.S.C. § 1302,
limits how tribes exercise their powers of self-government. Tribes cannot
exercise criminal jurisdiction over non-members unless Congress expressly grants that
power. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
Generally states have no criminal jurisdiction over tribal members within
Indian country. Rice v. Olson, 324 U.S. 786, 789 (1945);
Worcester v. Georgia, 31 U.S.(6 Pet.) 575 (1832). However, in
1958 Congress gave the State of Alaska "jurisdiction over offenses
committed by or against Indians in the areas of Indian
country. . . ." 18 U.S.C. § 1162,
Pub. L. 83-280. As a Public Law 280 state, Alaska
has jurisdiction over all crimes committed in Indian country. Although
18 U.S.C. § 1162
refers to the state having "exclusive
jurisdiction" within Indian country, courts have recognized concurrent tribal jurisdiction
over minor crimes.
Indian
Gaming
Tribal recognition does not impact Indian gaming in Alaska. The
federal Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701-21
(IGRA), permits recognized Indian tribes to conduct Class III gaming
on "Indian land" if such gaming is otherwise legal in
the state, upon negotiation of a gaming compact that is
approved by the federal Indian Gaming Commission. Class III gaming
consists of all casino games except bingo, pull-tabs, and traditional
social games of chance. Without Indian land, a tribe does
not have the necessary territorial jurisdiction to conduct gaming. In
addition, under current state law casino gaming is illegal and
thus not allowed to Natives or non-Natives in Alaska.
Fish
and Game Management
*11
State recognition of Alaska tribes does not affect fish and
game management. Indian rights to manage fish and game originate
from three sources: (1) reservation status of land; (2) off-reservation
treaty rights; and
(3) federal preemption of state regulation. Only one reservation exists
in Alaska (Metlakatla), and no treaties exist between the federal
government and Alaska Natives. Therefore, any Native rights to manage
fish and game can only be based on federal statutes
preempting state control. In Alaska, ANILCA grants rural residents, both
Native and non-Native, a priority for the taking of fish
and wildlife on public lands for subsistence uses. Tribal recognition
does not impact this individual federal right.
Alaska
Native Villages Defined as Tribes for Specific Federal Purposes
Although blanket federal recognition of Alaska Native villages as tribes
did not occur until the October 21, 1993, listing, Congress
has repeatedly chosen to treat Alaska Native villages as tribes
for specific purposes.
The following statutes are examples of instances in which Alaska
Native villages have been included in the statutory definition of
Indian tribes or where Native villages have been included along
with tribes in definitions of units of government affected by
statutes (citations are primarily to the definition sections involved):
5 U.S.C. § 3371.
Provisions for personnel assignments to and from states.
15 U.S.C. § 637.
Aid to small businesses.
16 U.S.C. § 470w.
Assistance in the conservation of historic sites, buildings, objects, and
antiquities.
16 U.S.C. § 470bb.
Programs for archaeological resources protection.
20 U.S.C. § 3232.
Assistance in bilingual education programs.
20 U.S.C. § 4402.
Assistance in development of American Indian, Alaska Native, and Native
Hawaiian culture and art.
23 U.S.C. § 101.
Assistance provided for public roads under the program for federal
aid for highways.
25 U.S.C. § 472a.
Included as a "tribal organization" in applying Indian preference laws.
25 U.S.C. 1452. The Indian Financing Act of 1974.
25 U.S.C. § 1603.
The Indian Health Care Amendments of 1980.
25 U.S.C. § 1622.
Eligibility of tribal organizations for health care grants
and contracts.
25 U.S.C. § 1903.
The Indian Child Welfare Act.
25 U.S.C. §§ 2011
and 2019. Establishing a new national Indian education system.
25 U.S.C. § 2401.
Indian alcohol and substance abuse prevention and treatment.
26 U.S.C. § 4225.
Exemption of articles manufactured or produced by Indians.
29 U.S.C. § 706.
Provision of vocational rehabilitation and other rehabilitation services.
29 U.S.C. § 1671.
Employment and training programs for Native Americans and migrant and
seasonal farm workers.
31 U.S.C. § 7501.
The single audit requirement for state and local governments.
42 U.S.C. § 628.
HHS payments to Indian tribal organizations for child welfare services.
*12
42 U.S.C. § 1471.
USDA financial assistance for farm housing.
42 U.S.C. § 2991b.
HHS financial assistance for Native American projects under the HHS
Native American Program, administered by ANA.
42 U.S.C. § 2992c.
HHS program for Native Americans.
42 U.S.C. 3002. HHS programs for older Americans.
42 U.S.C. § 5061.
HHS programs for administration and coordination of domestic volunteer services.
42 U.S.C. § 5122.
Provision of federal assistance to other levels of government for
disaster relief.
42 U.S.C. §§ 5302
and 5316. Assistance in providing public facilities under the Housing
and Urban Development Act of 1968.
42 U.S.C. § 6707.
Grants for public works projects.
42 U.S.C. § 6723.
Assistance under anti-recession provisions for public works employment.
42 U.S.C. § 5903.
Assistance in the planning and administration of solid waste disposal.
42 U.S.C. § 8803.
Assistance in the development of biomass energy and alcohol fuels.
42 U.S.C. § 9601,
Special programs and assistance relating to hazardous substance releases, liability
and compensation.
42 U.S.C. § 10101.
Assistance in handling nuclear waste.
42 U.S.C. § 11472.
Set-asides to assist in education, training, and community services for
the homeless.
Section
4, Alaska Statehood Act and Article XII, Section 12, Alaska
Constitution
A member of the public who testified at the hearing
inquired about the relationship between section 4 of the Statehood
Act and article XII, section 12 of the Alaska Constitution,
and the tribal status and Indian country issues.
Both section 4 of the Alaska Statehood Act (Pub. L.
85-508, 72 Stat. 339 as amended) and article XII, section
12 of the Constitution of Alaska provide that the state
and its people "forever disclaim all right and title to
any lands
or other property" owned or subject to disposition by the
United States, and to any lands or other property, including
fishing rights, the right or title to which may be
held by or in trust for any Indians, Eskimos, or
Aleuts. Both sections further provide that all such property shall
be subject to the absolute control, jurisdiction, and right of
disposal of the United States except as Congress otherwise provides.
These provisions have no relevance in the debate over tribal
status; they do not address the issue. The Statehood Act
expressly states that it shall not be construed to "recognize,
deny, enlarge, impair, or otherwise affect" claims against the United
States or to establish the validity or invalidity of any
such claim. Tribes are not mentioned in either provision, and
these sections have not been relied on by tribal advocates
in the cases now in the federal courts. These provisions
are cited as justification for permitting Native selections of state-selected
lands under the Alaska Native Claims Settlement Act (ANCSA), 43
U.S.C. 1601 et seq., and exempting undeveloped ANCSA land from
taxation, but beyond that, they are not germane to the
current debates over tribal status and Indian country.
Budgetary
Impacts of Tribal Status Litigation
*13
Concern was expressed by a legislator that the Department of
Law may have
made representations about litigating the tribal status issue in order
to secure funding for litigation.
The Department of Law made no commitment in any budget
document to litigate the tribal status issue. The department has
in the past sought CIP funding to litigate other issues
that concern or involve the interests of Alaska Natives. These
include the Endangered Species Act cases, the fishing treaty cases,
the submerged lands cases, and various ANILCA challenges, most notably
Katie John v. United States and Totemoff v. State. This
litigation continues. See, e.g., CP Descriptions for FY 1995 and
FY 1996.
CONCLUSION
Some participants in the December 4, 1995, hearing [FN3]
characterized the decision to no longer contest the tribal status
of Alaska Native villages as a wholesale reversal of prior
executive and legislative branch policies and an abdication of responsibility.
This view does not reflect the true complexity of the
state's dealings with tribes.
Successive state administrations have recognized the need to work with
tribal entities in various contexts. For example, as discussed earlier,
since the early 1980's the state has entered into memoranda
of agreement with tribes implementation of the Indian Child Welfare
Act. Governor Cowper's Administrative
Order No. 123 acknowledged the existence of tribes in Alaska.
Although Governor Hickel later revoked Administrative Order 123 and declared
that the state "opposes expansion of tribal governmental powers and
the creation of Indian Country' in Alaska," his administration did
not oppose tribal status in a wholesale fashion. Thus, my
predecessor chose not to contest the tribal status of the
Kluti Kaah Native Village of Copper Center in litigation over
the tribe's right to impose a tax on the TransAlaska
Pipeline System.
Since 1985 the legislature itself has authorized state aid to
Alaska Native village councils to the extent they waive immunity
from suit for claims arising out of activities related to
the payment. AS 29.60.140.
Finally, while people may disagree with the wisdom of this
policy change, there should be no doubt that the Governor
has the authority to adopt and implement the tribal status
policy for his administration, just as his predecessors have done.
As attorney general, I will continue to provide the best
legal advice available to the state's chief executive and to
support his policy choices to the extent they are consistent
with the law. In this instance, I have no reservation
in doing so.
Very
truly yours,
Bruce
M. Botelho
Attorney
General
[FN1]
Similar language is found in the Clean Air Act and
the Safe Drinking Water Act, 42 U.S.C. § 7601(d)(2)(B)
and 42 U.S.C. § 300j-11(b)(1)(B)
respectively.
[FN2]
"EPA believes that it was the intent of Congress to
limit Tribes to obtaining the status of Treatment in the
Same Manner as a State for lands within the reservation.
. . Tribes are limited to obtaining Treatment in the
Same Manner as a State status for only water resources
within the borders of the reservation over which they possess
authority. . ." 58 Fed. Reg. 67970.
[FN3]
During the hearing a legislator requested a copy of the
report entitled Legal Status of the Alaska Natives by Robert
E. Price (July 30, 1982; 1983 and 1989 supplements). Please
let my office know if you would like a copy.
1996 Alaska Op. Atty. Gen. No. 1, 1996 WL 376107
(Alaska A.G.)
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