Tribal sovereignty remains Alaska's unfinished business

 

Do Alaska Native tribes posses sovereignty? 

A simple question. And, in Indian Country, the answer is usually a quick “yes.” Of course. But in Alaska just asking this question is an act of defiance. The state and many of its citizens have assumed, planned, and operated on the premise that tribal powers no longer exist, so the state is free to impose its will on Alaska Natives.

A simple question that’s framed by dueling narratives. One story says the Alaska Native Claims Settlement Act (ANCSA) was a termination bill that should have extinguished tribal sovereignty. The other counters saying ANCSA was primarily a land settlement. A land bill that did create Native corporations but did not answer questions about governance. 

A simple question with multiple answers. Alaska, however, has stuck to a refusal to recognize tribal authority and has spent millions of dollars on litigation. In one such case, a federal court recognized tribal communities’ authority to put land into trust, removing lands from state control and a recognition of Indian Country (a status similar to reservations in other states). Alaska appealed that decision to the U.S. Court of Appeals in Washington, D.C.

Governor Bill Walker and Lt. Gov. Byron Mallott at a transition conference last November. A transition team report suggested that Alaska had much to gain by recognizing the government-to-government relationship with tribes. However, an appeal of a lawsuit over land-into-trust raises questions about the state's commitment. (Picture from Gov. Walker's Facebook page.)

Then in November a new governor was elected: Bill Walker, an independent who promised a new way of doing business. A Walker transition team report said: “Where no tools exist, they must be created, such as establishing a mechanism (e.g., legislation, constitutional amendment, etc.) where Alaska tribes 'as sovereign nations they are' negotiate and partner with the state of Alaska on an officially recognized, permanent government-to-government basis.”

But on Feb. 9, the state of Alaska fell into its old patterns. It asked the appeals court for a six-month stay to rethink its policy followed by some sort of status report. The state said: “The central issue in this appeal is purely legal: whether the Alaska Native Claims Settlement Act precludes the creation of new trust land in Alaska. However the decision whether to continue to pursue a judicial remedy, seek congressional action, or determine and implementing strategies for integrating trust land into Alaska’s ownership pattern -- with the resulting impacts to state regulatory jurisdiction -- are policy matters entrusted to a state administration that was inaugurated only a few weeks ago. As the state’s chief executive, the governor has the authority and obligation to frame state policy.”

I can think of a lot of governors who like the notion of absolute state authority, especially when it conflicts with tribal communities. But the hashtag would read: #NeverGonnaHappen. Native Americans have a right, even an obligation, to govern ourselves. 

“Why now is the state choosing to continue its hostile litigation stance against tribes in Alaska instead of attempting to understand the potential benefits that would come to the state if it were to stop fighting and start working with tribes and start working with tribes and assisting those tribal communities in achieving the goals of public safety and issues that have been recurring problems in the state for years?” asks Heather R. Kendall-Miller, an attorney with the Native American Rights Fund, representing villages and individuals who filed the suit. “We believe the land into trust option is one very strong tool that can and should be used to enhance tribal autonomy.”

Last year’s federal Law and Order Commission report was particularly blunt about the state’s role in law enforcement. The “problems in Alaska are so severe and the number of Alaska Native communities affected so large, that continuing to exempt the state from national policy change is wrong. It sets Alaska apart from the progress that has become possible in the rest of Indian Country. The public safety issues in Alaska -- and the law and policy at the root of those problems -- beg to be addressed. They are no longer just Alaska’s issues. They are national issues.”

The Alaska Native Claims Settlement Act might have been the largest land treaty ever. But the act clearly did not resolve the issues of tribal authority (or a host of other issues). And now the weight of history is coming down on the side of Alaska’s tribes. So forget asking “do Alaska Native tribes posses sovereignty?” Instead, demand to know when the state will figure out that a partnership with tribes is better for everyone involved? As it’s been said, the answer is not an Alaska issue. It’s a national issue.

Mark Trahant holds the Atwood Chair at the University of Alaska Anchorage. He is an independent journalist and a member of The Shoshone-Bannock Tribes.