Walker, 101917 AKAGO, AGO JU20172010

Docket Nº:AGO JU20172010
Case Date:October 19, 2017
The Honorable Bill Walker
AGO JU20172010
No. JU20172010
Alaska Attorney General Opinions
October 19, 2017
         The Honorable Bill Walker          Governor          State of Alaska          P.O. Box 110001          Juneau, AK 99811-0001          Re: Legal status of tribal governments in Alaska          Dear Governor Walker:          You have asked for a legal opinion about the sovereign status of Alaska Native tribes (Alaska Tribes) and their relationship with the State of Alaska (the State). This opinion covers the following: (1) tribes do exist in Alaska; (2) Alaska Tribes are governments with inherent sovereignty; and (3) the areas where the scope of that sovereignty is clear.          I. There are 229 federally recognized tribes in Alaska.1          The existence of a tribe or tribal government does not require a federal determination and tribal sovereignty does not originate with the federal government.2 That said, the United States Constitution gives Congress the authority to legislate with respect to Indian tribes.3 Thus, the sovereign status of tribal governments, for the purpose of determining tribes' relationships with states, is a question of federal law and federal recognition of a tribe is dispositive.4          While Alaska Native people and Alaska Tribes have existed in what is now the State of Alaska for thousands of years, Alaska Tribes have undoubtedly been recognized by the federal government since 1994. Alaska Tribes' inherent sovereignty has been recognized by all three branches of federal government and the Alaska Supreme Court. This inherent sovereignty exists regardless of whether the land that Alaska Tribes possess or inhabit is considered "Indian country."          A. The legal status of Alaska Tribes.          Tribes are legal entities separate from either the federal government or states.5 However, the status of Alaska Tribes was unclear for many years. The State initially took the legal position that tribes did not exist in Alaska.6 And the Alaska Supreme Court, in a 1988 dispute between an Alaska Native village and a contractor, held that "[t]here are not now and never have been tribes of Indians in Alaska as that term is used in federal Indian law."7          An early 1993 Department of the Interior solicitor opinion, however, concluded that the federal government's "course of dealings" with Alaska Native villages conferred upon the villages the same status as Indian tribes in the contiguous 48 states.8 Later that year, citing the solicitor opinion, the Department of the Interior, Bureau of Indian Affairs (BIA) issued a list of federally recognized Alaska Tribes.9 That publication was intended to "eliminate any doubt" as to the status and rights of Alaska Tribes; it recognized that Alaska Tribes have "the same status as tribes in the contiguous 48 states" and "the same inherent and delegated authorities available to other tribes."[10]          Through the Federally Recognized Tribe List Act of 1994 (1994 List Act), Congress effectively affirmed the BIA's recognition of Alaska Tribes. That legislation directed the BIA to publish lists of recognized tribes and, rather than reversing the 1993 List, overrode the omission of one Alaska Tribe.11 Subsequent lists published pursuant to the 1994 List Act have continued to include Alaska Tribes.12          Initially, the State litigated the federal determination.[13] But in 1996, the State discontinued this legal challenge and the state Attorney General issued an opinion outlining the status of federally recognized tribes in Alaska.[14]          The Alaska Supreme Court resolved any remaining questions about the legal status of Alaska Tribes in its 1999 decision, John v. Baker.15 The court acknowledged that in Native Village of Stevens v. Alaska Management & Planning it had concluded the federal government never recognized Alaska Tribes, but that the Department of Interior's definitive 1993 List and the 1994 List Act demanded a different conclusion. The court stated "[i]f Congress or the Executive Branch recognizes a group of Native Americans as a sovereign Tribe, we 'must do the same.' "16 The court explained that tribal status is a non-justiciable political question, requiring courts to defer to the express recognition of tribal status by the political branches of the federal government.17 Federal courts likewise 18 defer to the executive or legislative branches' tribal recognition determinations.          Since John v. Baker, the Alaska Supreme Court has consistently recognized the sovereign status of Alaska Tribes.19          The current state of the law is clear—there are 229 sovereign tribes within Alaska. Yet there continue to be misunderstandings about the existence of tribes in Alaska and their inherent sovereignty. A common misunderstanding is that ANCSA20 extinguished or terminated Alaska Tribes. But ANCSA settled, and extinguished, tribal claims to aboriginal title; it did not extinguish tribal governments.21 Because ANCSA did not explicitly terminate Alaska Tribes, it does not affect Alaska Tribes' status as sovereign governments.          Misunderstandings may have been furthered by unsuccessful, but well-publicized, arguments in litigation asserting that Alaska Tribes did not exist and lacked inherent sovereignty.22 Nevertheless, the Alaska Supreme Court has rejected several direct requests to overturn John v. Baker, and has consistently held that Alaska Tribes exist and are sovereign governments.23 Thus, there are no unresolved legal questions regarding the legal status of Alaska Tribes as federally recognized tribal governments.          B. The legal status of Indian country in Alaska.          Past confusion about the status of Alaska Tribes may also stem from misunderstandings about the relationship between Alaska Tribes and land status. Tribes and tribal governments exist regardless of the status of tribal lands.[24] Land status does not determine the existence of tribes and tribal governments.          There is, however, a "significant territorial component" to tribal authority.25 For that reason in discussing Alaska Tribes, it is also important to discuss the status of Indian country in Alaska.          The term "Indian country" means: (a) all land within the limits of any Indian reservation, (b) "dependent Indian communities," and (c) Indian allotments. 26 ANCSA extinguished all reservations in Alaska except for the Annette Islands Reserve of the Metlakatla Indian Community.27 There was a question for many years regarding whether lands patented under ANCSA constituted "dependent Indian communities" and was therefore, Indian country. This question was answered in Alaska v. Native Village of Venetie. In that decision the U.S. Supreme Court concluded that former reservation land transferred to an ANCSA village corporation and then subsequently transferred in fee to the Tribe did not qualify as a "dependent Indian community" and the land was therefore not Indian country.28          However, there remain open questions about Indian country in Alaska. Throughout Alaska, there are currently scattered non-ANCSA Alaska Native lands with federal interests: it is estimated that there are close to one million acres of restricted fee land granted under the Alaska Native Allotment Act of 1906 and the Alaska Native Townsite Act of 1926.[29] The Venetie decision solely addressed dependent Indian communities; it did not address the status of Alaska Native allotments or townsites.30 No case has determined whether Alaska Native allotments are Indian country.[31] There is also an open question about the territorial jurisdiction, if any, of Alaska Tribes over Alaska Native allotments and restricted Alaska Native townsite lots even if they are determined to be Indian country.32          In addition, the Department of Interior recently altered the land-into-trust regulations and removed the exception that prevented Alaska Tribes from petitioning for land to be placed in federal trust.33 This means that there will be more Indian country within Alaska. However, because Public Law 280 granted the State of Alaska concurrent jurisdiction over certain matters in Indian country within the State, the Indian country status of land does not change the State's ability to enforce its criminal or prohibitory laws.34          II. Alaska Tribes are sovereign governments.          Tribal governments are separate sovereigns. As a starting point, tribal sovereignty can perhaps be understood as self-rule—the right to make one's own laws and be governed by...

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