Alaska legislation would finally recognize the existence of tribes
A bill before the Alaska House Tribal Affairs Committee is simple: "The state recognizes all tribes in the state that are federally recognized ..."
The legislation gets more complicated after that line.
There are disclaimers about what the legislation doesn’t do. There would be no changes to state jurisdiction. Or the status of land. And it does not create any new state responsibilities. Nor does the proposal diminish the federal government’s trust responsibility or other obligations, specifically acknowledging the special relationship between the federal government and tribes.
"This bill is simply honoring and recognizing our Alaska people that have been here since time immemorial, an ancient people with an ancient past, a proud people. It's to give honor and respect to those for the same reason that we would to any self-determined people," said Rep. Chuck Kopp, a Republican from Anchorage “I think every human spirit cries out for freedom, for self-determination.”
Richard Peterson, Haida, is president of Southeast Alaska’s Tlingit and Haida, a regional tribe for 31,000 citizens. He said tribal recognition would not threaten anyone. “It does not give us any special standing over any other Alaska, but it recognizes our special place in Alaska.”
Natasha Singh, Athabascan, is general counsel for the Tanana Chiefs Conference, a tribal entity representing 39 villages in Interior Alaska. She said the legislation shouldn’t even be necessary.
“The existence of a tribe or tribal government does not require a federal or state determination and tribal sovereignty does not originate with the federal or the state government. Before the United States, before the state of Alaska, there were tribes,” Singh said.
The House bill, 221, has 17 bipartisan co-sponsors (out of 40 House members).
The legislation is in line with Alaska’s history, said Holly Handler, a staff attorney for Alaska Legal Services Corporation.
“The main point I'd like to convey today is that since the Alaska purchase in 1867, state recognition of tribes in Alaska has been the norm," she said. "So for more than 150 years, what this bill proposes to do has been the accepted truth in Alaska—that Alaska sovereign tribes exist here, and have existed for 10,000 years.”
However, Handler said, since the 1980s, there’s been a battle with the state of Alaska over recognizing Alaska tribes.
“And it has been a painful and very expensive aberration. The state has expended time, money, resources, fighting against this reality and this truth. It has been a failed investment, and it's also been extremely painful to the people who live here. Going to conferences and meetings on tribes in Alaska you can hear people speak up and say, “The state of Alaska doesn't even recognize that we exist.” And so that's been a very painful history for people in Alaska for decades.”
Handler said the Alaska Native Claims Settlement Act of 1971, or ANCSA, gave anti-tribal advocates a rationale for denying tribal sovereignty.
“The Native regional corporations created under ANCSA were created alongside tribal governments. People aren't citizens of their corporation, they’re shareholders. The corporations are chartered to create economic development and profit and business, whereas tribal governments exist for the benefit of their people, working on social services, law enforcement, public safety and things of that nature,” Handler said. “So that is the background for where tribal litigation really took off.” She said anti-tribal advocates tried to twist the passage of ANCSA and other laws to say that Alaska tribes were extinguished.
She said the state of Alaska launched lawsuits challenging the authority of tribes to protect tribal children, sovereign immunity, and to govern their own citizens. The litigation, especially a handful of particularly onerous cases, was costly to the state, and to tribes, Handler said.
“In these four cases, which all took close to a decade to litigate, we're talking about hundreds and hundreds of man and woman hours of the Alaska department of law, tens of thousands of dollars for outside counsel. Because in some of these cases, the department of law tried to litigate all the way to the US Supreme Court,” Handler said.
“All of this investment turned out to have a very poor rate of return because all of these cases failed,” Handler said. “The department of law with all its outside legal power, failed. All these four cases were decided in favor of the tribes because history and research and truth were on their side,” Handler said. “And, the state Supreme court and federal courts all agreed that nothing in ANCSA extinguished the sovereignty of tribes to exist in Alaska and to continue to exercise jurisdiction over their own people.
“So not only were these cases expensive and painful, but we had this huge opportunity cost where for these decades, the state of Alaska lost out on opportunities to partner with tribes on projects,” Handler said. “They lost the opportunity to partner with the tribes on grant opportunities and federal programs. And it is only now, since 2016 when the state stopped actively litigating against the tribes in these cases that we've seen this blossoming of opportunity.
“From the legal perspective, what this bill does is nothing really revolutionary in terms of law. it recognizes what legal scholars have known to be true for more than 150 years,” Handler said. “But it's revolutionary in terms of solidifying the state's commitment to work with tribes, and to solidify as a state that we won't revert back to these periods of very expensive and painful litigation against the state's own people."
Natasha Singh said, “I would just like to point out that the real lack of understanding, the lack of education regarding tribes by Alaskans was purposeful. It was a decision made by policy makers to attempt to wipe tribal governments from the history books. And that's why Alaskans really have a misunderstanding of tribes,” Singh said.
“This education was a part of Alaska's termination policy” and based on a lack of understanding of the history of the role of Alaska Natives in the state, Singh said. “And as long as this termination era continues, we are going to be continuing this battle, going back to when a governor who doesn't have this proper history decides they would like to litigate this again. That's why this legislation is so important and critical and it's really not a time where we are able to wait because Native people are suffering,” Singh said.
“When the state of Alaska tells our tribes, our Native people that ‘no, you don't exist. You don't have the authority to fix your own problems for yourself’. … you start to see inaction and you start to see children suffering,” Singh said.
As Kopp’s legislative aide Ken Truitt, Tlingit, said, “One of the great ironies that the tribes have in dealing with the state is that on one hand, the state denies the existence of tribes, but on the other hand will not issue you a grant without requiring you to waive sovereign immunity.”
“It’s time to end an adversarial relationship between tribes and the state ...and recognizing tribes is not unique per se. You know, many of the states down south [in the lower 48 states] have formal relationships with tribes,” said Frederick Olsen, Jr., Haida, of Sitka. “In fact, 11 states have state-recognized tribes, Alabama, Connecticut, Georgia, Louisiana, Maryland, Massachusetts, New York, North Carolina, South Carolina, Vermont, and Virginia.”
Tlingit and Haida president Peterson said empowered tribes benefit all Alaskans by bringing federal dollars into the economy, much of it for services the state would otherwise have to fund. Tribes “save the state of Alaska hundreds and hundreds of millions of dollars,” Peterson said.
Alaska has 229 federally recognized tribes. Truitt said accepting the plain fact that they exist will only benefit Alaska.
“Through this government-to-government relationship, Alaska tribes are able to administer highly sophisticated programs through contracts and compacts and to truly exercise their inherent sovereignty,” Truitt said.
Enacting this legislation, said Truitt, “declares the end of, the termination era of thinking as the official state policy.”
The Alaska House Tribal Affairs Committee has another hearing on HB 221 scheduled for Tuesday Feb. 18 at 8 a.m. Alaska Standard Time.
Joaqlin Estus, Tlingit, is a national correspondent for Indian Country Today and a long-time Alaska journalist.
For more reading: Materials from the Alaska House Tribal Affairs Committee.