Is Indian country in Alaska to be or not to be?

JUNEAU, Alaska - Since initial contact with the Russians nearly 300 years ago, Alaska Natives have been fighting to retain fundamental rights, from basic subsistence to political self-determination. That fight continues to this day.

Alaska Natives are some of the last and one of the largest groups of America's Indigenous peoples to even be recognized as retaining any collective rights. At the dawn of the 21st century, they are still fighting with the state of Alaska to be acknowledge as distinct governmental entities and to protect their right to subsistence hunting and fishing which they see as guaranteed through treaty and federal law.

In 1867, Alaska was purchased from Russia by the United States for $7.2 million, with no mention of tribal rights. With only a few simple trade outposts, such as Sitka, the center of Russia activity, Russia had never retained any real control over the area and Alaska Natives never gave up their rights to the land. These observations and the views and positions of Native peoples were never considered and control of the territory would now be enforced by a new sovereign - the United States.

While the history of Russian occupation and atrocities in Alaska has been extensively documented, their goals within the area were merely related to the control of the fur trade and whaling, with little effort put toward colonization.

Once the United States gained its perceived right to control Alaska, its activities not only included military occupation, whaling and trade in furs, but the added greed, violence and population influx associated with the discovery of gold. With the gold rush also came settlement and with settlement came the forces of assimilation through Christianity, subversion of Native languages and cultures, and the taking of Native lands.

By the early part of the 20th century, the U.S. government had fully committed itself to the Alaskan territory, as it had in the lower 48 states.

Although the territory of Alaska would not become a state until 1959, federal Indian policy imposed on tribes in the south would be imposed on Alaska's Native people, even before statehood.

Following passage of the Indian Reorganization Act in 1934, the U.S. government began to impose non-traditional forms of government - a "tribal council system" - over traditional forms of government practiced for centuries by villages throughout the Alaskan territory. Prior to this, traditional councils ran the affairs of most tribes and villages and the land. With the new tribal council system and its structure similar to municipal governments, new political divisions were created and old methods of resolution were lost, leading many times into a breakdown of the community's core.

While laws like the Indian Reorganization Act would have a profound impact on the lives of Alaska Natives, it was the passage of the Alaska Native Claims Settlement Act, or ANCSA, in 1971, that would have the greatest effect on the future of Alaska Natives.

Under ANCSA, tribes and villages in Alaska were divided into 13 regional and a variety of smaller village corporations established under Alaskan rather than federal charters. The act required these corporations to be formed "without establishing any racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions engaged in tax privileges."

In short, Alaska's tribes and villages were dissolved by Congress and their "assets", approximately 44 million acres of property, including timber and oil, were converted into federal "domestic assets." Despite partial amendment of the act in the late 1980s and passage of the Alaska National Interest Lands Conservation Act, the original legal structure imposed on Native Alaskans by ANCSA remains.

In 1998, the tribes and villages of Alaska were dealt another serious blow to the recognition of tribal sovereignty when the U.S. Supreme Court ruled that "Indian Country" did not exist in Alaska. The decision followed an appeal by the state of Alaska to a earlier decision by a lower court that "Indian Country" did exist in Alaska.

The case dated back to 1986, when the Village of Venetie sought to assess taxes on a state-funded school contractor, claiming that the village constituted "Indian Country" under federal law.

Under federal law and the term "Indian Country," tribes have broad authority over matters of taxation and regulation, while states are precluded from exercising such power on Indian lands. The state challenged that claim in federal court where it was argued before the 9th Circuit, which found in Venetie's favor.

In its appeal to the U.S. Supreme Court, the state argued that the 9th Circuit Court was wrong in its interpretation that ANCSA land qualifies as Indian Country. In its brief, the state argued that "Alaska has been governed on the basic jurisdictional premise, reflecting the unique history of the land and its Natives, that there is no Indian Country in Alaska."

It further stated that "the Ninth Circuit disregarded the clear intent of Congress that ANCSA land not be Indian Country; indeed the transformation of ANCSA land into Indian Country is antithetical to what settlement was all about."

The Village of Venetie, represented by the Native American Rights Fund, argued that Venetie's one million acres held by the tribe in fee simple and occupied almost extensively by tribal members is a dependent Indian community over which the tribe has jurisdiction and that ANCSA did not extinguish the Indian Country status of Alaska Native villages.

Venetie also argued that the court must apply the "Indian Cannon of Construction," a legal finding that statutes passed for the benefit of Indians (including ANCSA) must be liberally construed in favor of Indians, and that congressional intent to extinguish Indian Country must be reflected by "clear and plain" language.

While the 9th Circuit agreed with Venetie, the Supreme Court agreed with the state and held that the Village of Venetie's land holdings satisfied none of the requirements necessary for the land to be considered Indian Country. The High Court also went on to find that Venetie was neither a "federal set-aside" nor was it under federal superintendence.

Since this decision, tribes in Alaska have struggled with state and federal agencies over interpretations of the court's findings and its application in Alaska tribal policy.

"In Alaska the state is continuously taking the tribes to court to further erode the sovereign powers of Native tribal governments," said Edward Thomas, president of the Central Council of Tlingit and Haida. "I think the dominant society already understands the need for our distinct rights, it's just the political powers that be that continue to create problems."

These battles over the status of tribes in Alaska have leaked down to the most basic of rights: subsistence and the right to hunt and fish. A case filed almost 10 years ago involving an Athabascan woman named Katie John is still being argued. She is suing the U.S. government under the Alaska National Interest Lands Conservation Act for not protecting her fishing rights which she feels are being violated by the state.

Under ANILCA, Native subsistence users like Katie John are allowed recourse in federal court if ANILCA's subsistence protections are not being enforced by federal agencies. The state, through the Alaska State Supreme Court, claims that although it is required to protect subsistence rights on Alaska's federal public lands under ANILCA, the Alaska State Constitution says the state's resources are for the common use of "all citizens" of the state, Native or non-Native. Therefore, a law that requires subsistence uses to have priority over other uses violates the "common use" clause of the Constitution.

"One of the most critical issues facing us right now is subsistence, a right which must be protected forever," said Mike Williams, chairman of the Alaska Inter-Tribal Council. "When the federal government came up with ANCSA and ANILCA, it was promised that our rights would be upheld and protected by the state and the federal government."

Through cases like Venetie and Katie John, as well as legislative attempts by the state and some in the U.S. Congress, tribes in Alaska have come to find that efforts to diminish their sovereign rights appear to have no end. For many tribal leaders here, they see those in power tirelessly working to subject tribal governments in Alaska to the authority of the state, an effort they vow to fight until they win.

"The relationship between the state of Alaska and the tribes has been very negative over the years since the state has failed to recognize that tribes even exist in Alaska," Williams said. "In the future I see the tribes in Alaska controlling their own members, managing their own services, running their own fish and game, having their land in trust, and having a government-to-government relationship with the state and the federal government."