U.S. SUPREME COURT ISSUES RULING IN TRIBAL SOVEREIGNTY CASE

In a decision decried by one tribal leader as "a breach of honor" the Supreme Court ruled that 1.9 million acres of ancestral lands owned by a remote Alaska Native tribe are no longer under the governmental jurisdiction of the Tribe.

ANCHORAGE, AK – The unanimous and unusually short 13-page decision written by Justice Clarence Thomas came in a much-watched landmark case brought by the State of Alaska twelve years ago to block an outside construction company from paying a tribal tax that funds road repairs, maintenance of a rudimentary airstrip, and other governmental services in the Native Village of Venetie. The ruling reverses a Ninth Circuit Court of Appeals decision that upheld the tribal tax.

Much of the litigation centered on the interpretation of the Alaska Native Claims Settlement Act (ANCSA) -- the largest tribal land claims settlement in American history. Under that Act, Congress extinguished Alaska tribal claims to 340 million acres in return for a cash payment of $962.5 million and secure title to 44 million acres selected and to be divided under a complex formula. In an unprecedented move in federal/tribal relations, Congress directed that the 44 million acres be conveyed not to the Alaska tribes, but to new Native corporations which the tribes were required to establish under state law. At the same time, Congress eliminated some of the federal controls over land development that generally apply on Indian reservations elsewhere. In the end, some 200 village tribes took part in the land claims settlement.

The particular conflict that gave rise to the litigation in this case involved the application of ANCSA to the Venetie Tribe of Neetsaii' Gwich'in Indians - a remote Athabascan Tribe that inhabits a vast area north of the Arctic Circle and hundreds of miles away from Alaska's major population centers. Accessible only by air, boat, snowmobile or dogsled, tribal members largely live a traditional life based on hunting, fishing and trapping. The tribal council administers all essential governmental services other than the federally supported local school.

In 1943, the Secretary of the Interior set aside a 1.9 million acre reservation in order to protect the Venetie Tribe from outsiders encroaching on tribal hunting and trapping grounds. During the late 1960s the Tribe opposed the evolving ANCSA legislation. The Tribe wrote to Congress to retain its reservation, even if doing so meant giving up the cash settlement. Congress obliged and the Tribe received no share of the monetary settlement. Still, Congress required that the land initially be conveyed to two state chartered corporations established by the Tribe for its tribal citizens. Once the lands were conveyed, the corporations immediately reconveyed the lands back to the Venetie Tribe, which continues to own the land today.

In ruling against the Tribe's continued right to tax, the Supreme Court reasoned that when a reservation does not exist, Indian tribes can only continue to govern their lands if those lands qualify as a "dependent Indian community" under a 1948 federal law known as the "Indian Country" statute. Relying heavily on two Supreme Court cases decided at the early part of the century, the Court interpreted that term narrowly to mean that the federal government must have "set apart" the lands "for the use of Indians as such," and that the government must retain "superintendence" and "control" over how the land is used and developed. The Court then ruled that Venetie's lands could not satisfy this standard because Congress initially conveyed the lands to the corporations for whatever use they might , and because the Congress had deliberately chosen to forego any control over how those choices would be made.

Spokesperson Gideon James, Venetie Tribal Government Administrator, called the high court's action "a breach of honor," adding "we may not have been educated in the white man's ways, but we were promised we would always be able to keep and govern our lands where our ancestors are buried. We were told we could opt out of the Settlement Act. Now we are told it was all a big lie to take our rights away!"

Native American Rights Fund (NARF) attorney Heather Kendall-Miller called the opinion "superficial and poorly reasoned." She remarked that "over thirty years ago Congress abandoned the Court's paternalistic view of keeping Indians under absolute federal control and of being unable to take charge of their own affairs. Instead Congress did everything possible to promote tribal independence and self-governance. The Court's analysis today twists that policy into a cruel and backhanded termination of the very rights it was intended to promote."

Indeed, the Court's opinion acknowledges the apparent conflict between statutes like the Settlement Act designed to promote greater Native American autonomy, and the Court's conclusion that tribal governmental jurisdiction demands federal control over tribal lands. But Justice Thomas added that the conflict is one "entirely for Congress" to resolve.

In its briefs before the Court, the State of Alaska repeatedly warned of chaos across the state if the Court sustained the Venetie Tribe's claim to govern its lands, and one state legislator went further by calling Alaska Native tribes "an absolute evil." Ms. Kendall-Miller called such statements "irresponsible and provocative extremes bordering on racism, reflecting a belief that the tribes which have been conscientiously governing their communities according to tribal custom since before recorded history are in fact incapable of continuing to do so responsibly and in cooperation with the state and federal governments." She added that moves by the state courts, the state legislature and the Alaska congressional delegation to weaken the limited Native hunting and fishing rights that survived the 1971 Settlement Act "have so polarized the State that genuine dialogue on issues of tribal self-government has been virtually impossible." She nonetheless expressed hope that a new commission appointed last week by Alaska Governor Tony Knowles to address village government issues would provide the first forum to begin healing the wounds created by the Court's decision . "In the end," she added, "both law and justice will demand that Congress restore what the Court now says Congress took away. Any reconciliation depends on that. Congress must act."

Back in Venetie, Mr. James was asked how life would now change for the tribal community. "It won't," he said, "we are still here, just as our ancestors were, and the views of nine black robes 10,000 miles away cannot change that. People who come here must respect our laws and traditions. We are the only government here, and we will remain the only government here, so long as the wind blows."

The Native Village of Venetie was represented by NARF staff attorney Heather R. Kendall-Miller.

The Native American Rights Fund is a non-profit organization that provides legal representation to over 190 tribes nationwide in the areas of: the preservation of tribal existence; the protection of tribal natural resources; the promotion of human rights; and the accountability of governments to Native Americans; and the development of Indian Law.