Alaska’s Line in the Snow: Tribal Rule

It’s barely autumn, but morning dawned at 8 below zero and the pockets on the discarded pool table outside the village office are stuffed with snow. The moose that Ernest Erick hung out back is frozen stiff. The sled dogs stand silent, a still life of frosty fur and reproachful blue eyes, except for the breath clouding around their heads.

This is a Currier and Ives of the Alaskan bush, as pacific a scene as you’re likely to find in the northern outback--an unlikely backdrop for a revolution that may transform the political landscape of rural Alaska.

It all started when the regional education district decided to build a school addition for the 225 Neets’aii Gwich’in Indians of Venetie. The village was happy enough to have a new school but wondered why the building contractor should have free use of limited roads, water and waste disposal facilities.

The tribal council presented the contractor with a $161,000 bill--a 5% business activities tax of the kind that might be assessed by a city government. Except that Venetie isn’t a city, and Alaskan natives, unlike those elsewhere in the nation, don’t have reservation lands from which they can levy taxes of their own.

The state challenged the tax bill, and the U.S. 9th Circuit Court of Appeals last year issued an astounding reply: Venetie, the court said, was “Indian country” and theoretically could issue whatever taxes, land use regulations, environmental restrictions and social welfare laws it wanted.

The case, which is scheduled to go before the U.S. Supreme Court on Dec. 10, opens the possibility that Indian country could range over 226 native villages in Alaska, potentially doubling the area in the nation that tribes claim as sovereign territory.

“The prospect of 100 or more communities viewing themselves as sovereign enclaves beyond the reach of state regulatory power is a shocking . . . kind of experience,” said Alaska Atty. Gen. Bruce M. Botelho. “Half the tribes in the entire United States today are in Alaska. In this decision, one may be talking about adding anywhere between 20 and 44 million acres to Indian country in this nation.”

The decision, he said, could leave the state with full jurisdiction over less than 3% of the privately held land. (About 10% of Alaska is in private hands. The federal government owns more than 65% of the state’s 589,757 square miles, and the state owns most of the rest.)

To understand the idea that 44 million acres could be declared Indian country, imagine 200 foreign countries erecting borders in a patchwork across the state. Under the concept of sovereignty, tribes are not minorities but sovereign nations whose powers predate even the U.S. Constitution. In Indian country, state governments deal with tribal leadership on a government-to-government basis, and much of state civil law does not apply. Many federal constitutional rights also do not apply.

High-Powered Appeal of Case

The state Legislature has allocated $1 million for the appeal. Republican U.S. Sen. Ted Stevens has taken the rare step of filing a personal brief with the high court. And 20 other states, led by California, have joined in support, spurred by fears that Indian communities without official reservation status might assert sovereignty claims.

The powerful movement to assert aboriginal sovereignty rights is claiming a beachhead in Alaska, where about 100,000 Aleuts, Eskimos and Indians make up more than 16% of the population. Throughout the interior, tiny villages have grown increasingly audacious in their assertion of self-government in a state so vast that the capitol in Juneau, 800 miles from Venetie, has been unable, or unwilling, to do anything about it.

“The tribal governments in Alaska have never been extinguished . . . and these tribal governments that are now existing are extensions of the ones that [predate] both the state and the federal government,” said Willie Kasayulie, a leader in Akiachak, one of a growing number of villages with its own tribal court, police, curfew and liquor laws.

“We’re only asking for what most Native Americans all over the country have,” Kasayulie said. “If the outcome of the Venetie case is positive, it will be more or less the affirmation of tribal rights for all the Alaskan native tribes.”

The implications, said Michael Jennings, interim director of the University of Alaska’s native studies program, can only be appreciated when you think of Alaska itself: a largely undeveloped state as big as California, Washington, Arizona and Montana combined--a state whose resources are so huge they can barely be imagined.

Twenty years ago, the state was able to exercise eminent domain to build the trans-Alaska pipeline that opened up the North Slope oil fields. What if the state were to undertake a similar endeavor today, crossing millions of acres of Indian country whose leaders were opposed to increased development of oil and gas resources?

“What you’re doing [with the sovereignty movement] is increasing the ability of Native Americans to control development on and around their lands,” Jennings said. “The state can’t declare eminent domain in Indian country. This is America’s largest resource warehouse. You have copper, coal, oil and gas. . . . With Indian country, you’ve got to deal with 226 villages if you want to cross their land or extract resources.”

Indian country spans more than 56 million acres in the Lower 48, and tribes exert extensive regulatory authority on reservation and allotment lands.

Alaska, however, was supposed to be different. Settled largely after the era of Indian wars and treaties in the Lower 48, it was a place where a new generation of political leaders vowed to avoid herding tribes onto reservations, allow continuation of voluntary land-based subsistence lifestyles and give all native Alaskans the means to prosper in a modern economy.

The solution was the 1971 Alaskan Native Claims Settlement Act, drafted during the tumultuous years when hundreds of millions of acres of former territorial land were parceled out (both the state and native tribes were laying claim to them) and a huge underground sea of oil was discovered on the Arctic Slope.

1971 Settlement Shifted Status

In the end, natives walked away with 44 million acres and $962.5 million in exchange for extinguishing their aboriginal claims. The land was parceled out to a series of native-controlled corporations that would try to maximize its economic potential and pay future dividends to native shareholders, wherever they might live.

In a single swoop, a swath of land as big as the state of Washington shifted to private hands. Tribes were permitted to opt out of the law’s settlement benefits and take outright ownership of their tribal lands instead. The Gwich’in at Venetie and nearby Arctic Village were among a handful that did so, taking full title to all 1.8 million acres of their former reservation.

A quarter-century later, the 1971 act is seen as a mixed blessing. Native-controlled corporations like the oil-blessed Arctic Slope Regional Corp. and timber-rich Sealaska Corp. have emerged as some of the most important economic powerhouses in the state.

Others have teetered on the verge of bankruptcy, and few have done anything to change the fundamental reality of rural Alaska: a far-flung network of native villages largely dependent on hunting, fishing and welfare, plagued by alcoholism, crime, suicide and despair. The average per capita income remains about $13,800.

The sovereignty movement has grown out of that reality, with an activist generation of leaders convinced that taking control of their villages and holding fast to tribal traditions are the best answers for a culture led astray from outside.

“There was a study a number of years ago conducted on the social and economic status of the Alaska native villages,” said Heather Kendall-Miller, the attorney for the Native American Rights Fund who is taking the Venetie case before the Supreme Court. “The study found they really are a people in peril with many, many problems, and they attribute those to the fact that they have become people that are in a pattern of dependency that has been a result of nonnative institutions being imposed upon existing native institutions.

“Venetie is an example of a community that is attempting to break out of this syndrome by taking control. They are an example of what’s working when a village does so. They are an example of what’s working in the face of a lack of state involvement, and they have been doing it all along.”

Ernest Erick shot the moose hanging in his backyard shortly before the first snow set in; the long racks of ribs will feed two families through the spring.

He makes boots out of caribou and wolf pelts. He hunts in the fall and fishes in the summer. And what he hauls home has to feed a family that can rarely afford a foray to the grocery, where 10 pounds of potatoes cost $7.35.

“Our traditional way is, get off your seat and get out there and do what your forefathers did,” Erick said. “My kids, they like potato chips, but they like subsistence [food] more. We live off the land. This is the tribe that was here before time.”

His wife, Donna, the tribal administrator, remembers her greatest fear growing up was that some day she would be moved onto a reservation. “TV came when I was 4, and we saw the cowboy and Indian movies. I used to dream about the cowboys and Indians, and the Indians were getting me. That was my nightmare.”

Today, those are the stories she remembers when she talks about the state offer to construct waste water facilities for the village, where there is no running water. The catch, she said, was that the tribe had to sign a waiver of sovereign immunity to qualify for the grant. The tribe said no.

“To say we have to sign away our land for a sewer line, it isn’t going to happen,” she said. “No government is going to make us sign a sovereignty waiver to be able to have a flush toilet.”

Holding On to the Land

Venetie was one of only a few Alaskan tribes that had a reservation designated by the federal government, in 1943. After the passage of the 1971 act, Venetie and Arctic Village opted under a little-used provision to give up any claim to a monetary settlement or membership in a native corporation and take title to the 1.8 million acres of their former lands. Today, a joint tribal council from the villages oversees the tribal lands.

Tribe members like Ernest Erick, a former chief, believed the Gwich’in couldn’t survive, physically or culturally, without the ability to roam and dominate their ancestral domain. They never had any intention, they say, of extinguishing their aboriginal title to anything, or setting aside a tribal government that had been in place, more or less, for millenniums, in favor of a state government whose nearest urban outpost, in Fairbanks, is an hour’s plane flight away.

State officials looked the other way when tribal councils in Venetie and other communities unilaterally declared bans on alcohol and began searching incoming passengers and baggage. They have even been grateful when local tribes have assumed control of property offenses and domestic disputes; state troopers fly in only for serious felonies.

The state has attempted to mediate conflicts between tribes and sport hunters, and has set up the prospect of cooperative fish and game management on native corporation lands.

But Venetie crossed an invisible line when it imposed a tax on the new school. It was a line that both sides knew was there, a confrontation both knew was looming.

Stevens has predicted violence in the villages if the tribes lose their Supreme Court battle; the state foresees a nightmare of litigation and jurisdictional chaos if they win, as 226 Alaskan villages apply a complicated legal formula to determine whether they qualify as Indian country and what rights they might assert.

The quietest minds point out that Venetie, because of its historic reservation status and its decision to reject any financial or native corporation settlement, might qualify as Indian country under the 9th Circuit’s legal reasoning, where most other villages would not.

The court set up a complicated test for determining Indian country, and among its keys were the extent to which an area was set aside for “dependent Indian peoples” and the degree of federal ownership and control over the area. The judges looked back to Venetie and Arctic Village’s continuing reliance on a series of federal grants and programs--as, indeed have most Alaskan villages--and determined that the 1971 law never spelled out any termination in the federal trust relationship with Alaska’s tribes. Nor, the court said, did the law specifically extinguish Indian country in Alaska.

State officials expect suits will be filed by 226 villages seeking Indian country status; with that, they say, likely will come squabbles between tribes over territory and confusion over who oversees minor criminal offenses and civil law relating to non-tribal members. More important, the state says, it could have difficulty enforcing environmental controls on logging and state fish-and-game conservation laws--a prospect that alarms sport hunters.

“This whole idea of subsistence is in itself a step back into the 19th century,” said Wayne Anthony Ross, an Anchorage attorney and Republican activist who has represented hunting groups. “What the native leaders should be talking about is developing their land, making use of it, so people will not have to live in economies where there are no grocery stores.”

‘An Issue of Racism’

Kendall-Miller, an Alaskan native herself, has a ready answer for arguments like these: “I’m afraid what I see more or less is an issue of racism. Why would some of these very same acts [of self-government] be considered valid if they were done under an existing [municipal] form of government? It’s an issue of power, and a refusal to share power.”

In the state’s view, the hardest part is that Alaska spent years going over the issue of native claims and thought it had put the issue to bed. “Most of the political leadership in the state today was around when the settlement agreement was reached in 1971, and have a visceral sense of what the deal was,” said Atty. Gen. Botelho. “And Indian country wasn’t it.”

Venetie begs to disagree. Nobody anywhere signed anything giving up rights to tribal self-rule, nor would they have, said Gideon James, the tribe’s sovereignty coordinator.

“ANCSA was not a solution to native problems. The problems that exist in all the villages are still here: law enforcement, health delivery, housing, communication, transportation. I don’t see any state input into these things. The tribes are the ones that are really doing the work of taking care of themselves.”