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CHAPTER ONE

TRIBAL COURTS

A HISTORICAL PERSPECTIVE

"…..Same thing with tribal court. That came in long before white people. The court brought everything out in the open, before the people. They talked to the person making trouble right in front of him. They just talk. As peaceful as they can. The Indian way is to have respect for one another.”

Chief Peter John

Traditional Chief, Minto Alaska

 

     Introduction

     Types of Tribal Courts

          Traditional Tribal Courts

          CFR Courts (Code of Federal Regulations)
          Modern Tribal Courts

     History of Tribal Court Jurisdiction in the U.S.

     Brief History of Alaska Tribal Status and Courts

          Venetie Tax Case and Indian Country
          State Recognition of Tribes and Tribal Courts in Alaska (John v Baker; C.R.H.)

     Conclusion

 

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Introduction

When the indigenous people living in the “New World” found Christopher Columbus and his crew on their shores, tribes throughout this land had laws, customs, and systems of enforcement for regulating behavior, domestic relations, natural resource use and intertribal relations. The tribes of the Iroquois Confederacy for example, were living under a highly developed governmental system from which the early founding fathers of the United States drew ideas for the design of the federal and state systems of separated powers and representative government. Since the formation of the United States, traditional tribal justice and judicial systems have undergone tremendous assaults and pressures from a variety of fronts. In spite of the turbulent history, tribes continue to develop and operate tribal courts, incorporating traditional values and practices as they proceed.

The current picture of tribal courts in the United States may be better understood by viewing the long history of events, policies, and legal legacies resulting from the interaction between tribes, the federal government, and the settlers of the “New World.” This history lead to much of the variation in tribal courts across the country. Some of the various types include traditional courts, courts of Indian offenses (CFR courts), modern adversarial tribal courts, intertribal courts, and specialty tribal courts. Tribal courts also vary in their procedures, with many tribal courts using mixtures of modern and traditional practices.

Although traditional tribal practices are very much alive among Lower 48 tribes, many of the modern tribal courts in the Lower 48 have become very ‘westernized.’ There are a variety of reasons for this, including the early models that were imposed on them, the necessity to address increasingly more complicated legal issues, procedures required to incarcerate people, and partly to ‘prove’ their ‘legitimacy’ in the eyes of the federal and state governments.

They typically evolved from courts set up by the Bureau of Indian Affairs (BIA), which were designed to integrate American Indian people into the Anglo legal system. Many Lower 48 tribes are now in the process of rebuilding traditional values and practices into their judicial systems. Although Alaska tribes have suffered delays in formal recognition, confusion over jurisdiction, and lack of financial and technical support, they have the opportunity to build and develop their tribal court systems with traditional values and practices built into them, and, with the benefit of knowledge gained over time from the turbulent experiences of Lower 48 tribes.

Types of Tribal Courts

Traditional Tribal Courts:

Traditional tribal courts are based on unwritten custom laws, traditions, practices, and the spiritual and moral values that are behind them, as passed down from tribal Elders. They often involve justice delivery by religious or other tribal leaders, particularly tribal Elders. The primary goal of traditional courts is typically to approach the problem in its entirety, using methods based on repairing lives, families, and communities, and restoring harmony and justice. Judicial remedies often include counseling by the court and restitution in various forms to repair damages done. Although procedures and offenses are defined according to unwritten, customary laws, traditional tribal courts are still bound by the provisions of the Indian Civil Rights Act, which basically requires fundamental fairness and places other general guidelines on all tribal courts in the United States. Although many modern tribal courts incorporate some traditional values and practices into their structures, procedures, and orders they enforce, today there are only a few courts that in the strictest sense are considered traditional tribal courts. Examples are the religious courts of the Pueblos in the Southwest and the Elders Court of Emmonak, Alaska.

CFR Courts (Code of Federal Regulations):

By the 1870s, wars, relocation, disease, increasing federal control and assimilationist policies had all taken a toll on traditional tribal judicial systems. In 1883 the Bureau of Indian Affairs (BIA) created ‘Courts of Indian Offenses.’ They became known as CFR courts when guidelines were established in the Code of Federal Regulations. Although the CFR courts were staffed by Indian people, the judges were originally appointed by the Bureau and served at its pleasure.

Historical writers report that the CFR courts had more to do with cultural assimilation through suppressing religious ceremonies, activities of medicine persons, and traditional methods of property distribution and other such traditional practices, than with keeping law and order. At the height of CFR court activity, about two-thirds of the reservations in the Lower 48 had adopted these systems. Today there are few CFR courts left. They are bound to the provisions of Title 25 of the Code of Federal Regulations. Title 25 contains regulations to be enforced by the CFR courts, but the tribes may adopt their own ordinances subject to the approval of the Secretary of the Interior.

Modern Tribal Courts:

The modern tribal court systems began with the passage of the Indian Reorganization Act in 1934. That Act encouraged the establishment of constitutional forms of tribal governments with tribally controlled judicial systems. By 1934, however, most tribes were not in a position to resurrect the traditional forms of justice that had functioned prior to the Courts of Indian Offenses era because of removal, dissipation, decimation through war and disease, and suppression. Instead, tribes established judicial systems that were very similar to the model urged upon them by the Bureau. Written laws were adopted and enforced while unwritten customary law was suppressed. As a result, the modern tribal courts took on practices based on Bureau offered notions of Anglo justice rather than on tribal customs.

Although some modern tribal courts are structured under specific tribal constitutional guidelines, tribal courts are typically established by tribal councils under the general authority of a tribal constitution. Procedures for tribal courts are commonly defined by the councils in the form of ordinances, but tribal court procedures may be rules created by the court itself. Judges are typically either elected by the membership or appointed by tribal councils. Tribal court proceedings may be less ridged and formal than those in the Anglo system. Indian tribes are not bound by a requirement to separate tribal government into executive, legislative, and judicial branches, and in Alaska, it is not uncommon for tribal councils to also serve as tribal courts.

Although tribal courts have a wide range of independence in terms of structures and procedures, they are all required to follow the guidance of the Indian Civil Rights Act, which is similar to the United States Bill of Rights, and passed Congress in 1968. Decisions of any type of tribal court system that result in the incarceration of someone are subject to review by the federal courts through a writ of habeas corpus which is a procedure to review the legality of an individual’s confinement. In these cases, the federal courts review cases upon request to determine if there were violations of the equal protection and due process requirements of the Indian Civil Rights Act.

History of Tribal Court Jurisdiction in the U.S.

The basic premise for tribal court jurisdiction in the United States comes from federal recognition of inherent tribal sovereignty. Inherent tribal sovereignty basically means that tribes were here in this land first, were self-governing at that time, and the U.S. federal government that formed recognized the original sovereign powers that tribes already had. Tribes have almost all of the governmental powers they once had, except as specifically terminated or limited by the U.S. Congress. Tribal powers to go to war, to make treaties with foreign countries, and to print money were terminated by the virtue of tribes coming under the umbrella of the United States government.

Over the last hundred years or so, the policies and laws of the federal government regarding tribal jurisdiction have played a significant role in the development of tribal courts. In the earliest years, Congress respected the rights of tribes to create their own forums for governing and administering justice. This right was generally recognized through treaties. Originally, tribes had exclusive jurisdiction over all persons and subjects present in ‘Indian country,’ which is the territorial area over which a tribe can make and enforce laws.

As the newly founded nation developed, however, a pattern was established of extending federal jurisdiction over crimes in Indian country when non-Indians were involved. In 1817, Congress reduced tribal jurisdiction by passing the General Crimes Act, also known as the Indian Country Crimes Act or the Federal Enclaves Act. The General Crimes Act extended federal criminal laws into Indian country, except for crimes committed by an Indian against the person or property of another Indian.

In Worcester v. Georgia (1832), the U.S. Supreme Court ruled that states had no jurisdiction over Indians within Indian country unless Congress granted them that power. This case was a benchmark case in federal Indian law in this country, setting the tone for the special legal and political status of American Indians and Alaska Native people. The 1800s, however, was an era of intense disruption and assimilation for Indian people. Indian agents of the federal government typically handled crimes in Indian country. Traditional forms of tribal justice were continually eroded. In 1871 Congress ended the practice of treaty making with the Indians. Pressures increased to open Indian reservations to settlers and to assimilate tribes into Anglo society.

During the 50 years after Worcester, there were relatively few federal court cases in the area of Indian law. The Ex Parte Crow Dog (1883) case was the next federal case of great significance. The case involved a dispute and subsequent murder of an Indian named Spotted Tail by another Indian named Crow dog, on what is now the Rosebud Indian reservation in South Dakota. The Lakota Tribe handled the murder in a traditional manner through restitution, by ordering Crow Dog to make payment to Spotted Tail’s family of $600, 8 horses, and a blanket. This was a large financial settlement in those days, and in this way the family of the murdered man would be taken care of. Peace would be restored the best it could be under the circumstances.

The Territory of Dakota viewed the Lakota way of handling the situation as leaving Crow Dog unpunished, and so they arrested Crow Dog, tried him for murder, and sentenced him to hang. The case was appealed to the United States Supreme Court, which ruled that although federal criminal law applied in Indian country when non-Indians were involved, only an Indian government could punish an Indian for committing a crime against another Indian in Indian country.

In reaction to the U.S. Supreme Court’s decision in the Crow Dog case, Congress passed the Major Crimes Act (1885). That Act extended federal jurisdiction over felony offenses committed by Indians against other Indians on Indian reservations. The Department of Interior also responded to the Crow Dog case by organizing ‘Courts of Indian Offenses,’ which mostly used BIA judges whose goals were basically to assimilate American Indian people into the non-Indian world. Shortly after Crow Dog, Congress approved the General Allotment Act (1887), which did not technically affect tribal jurisdiction, but had devastating affects on it by dividing tribal land among members, causing further disbursement of tribes. In 1896 through a case called Talton v Mayes, the U.S. Supreme Court essentially decided that since the existence and sovereign powers of tribes predated the U.S. Constitution, constitutional rights provided by the U.S. Constitution do not apply to the activities of tribal governments. Therefore, rights of criminal defendants under the U.S. Constitution do not apply to tribal criminal proceedings. Some 70 years later, Congress responded by passing the Indian Civil Rights Act (1968), which applies most of the same provisions and rights of the U.S. Bill of Rights to the activities of tribal governments.

At the turn of the century, the American Indians’ attempt at self-determination in the Lower 48 was collapsing. War, disease, removal, federal control, and land loss took unfathomable tolls on indigenous tribes. In the spirit of attempting to improve conditions on the reservations and to stop the loss of Indian lands, Congress passed the Indian Reorganization Act (IRA) in 1934. Many tribes organized under the IRA, adopting written constitutions that were typically based on the ‘boilerplate’ constitution written by the Bureau of Indian Affairs. These constitutions granted tribal councils the power to create tribally operated courts to replace CFR courts, marking the birth of the modern tribal court systems. However, the Bureau drafted a model code for these courts that was commonly used. Under this code, BIA appointed Indian judges if they were paid federal funds. Under the constitutions and codes adopted by tribes after 1934, tribal court jurisdiction was limited to minor offenses committed by Indians. The codes used by most tribal courts granted rights to jury trials, but authorized tribal courts to bar professional attorneys from court. Few other procedures were outlined in the codes and most limited sentencing power of tribal courts to six months imprisonment for any one offense.

In the early 1950s, Congress adopted polices aimed at terminating federal obligations to tribes. Although most tribes were not terminated, tribal councils were discouraged from efforts to develop more effective tribal courts. Congress passed Public Law 280 in 1953, which authorized some state courts to assume criminal and some civil jurisdiction over Indians within Indian country, regardless of tribal consent. Through the 1950s, tribal codes generally remained the same as those developed by the Department of the Interior in 1934.

At the end of the termination decade of the 1950s, the U.S. Supreme Court issued an opinion favorable to tribes in Williams v Lee. The case involved a non-Indian, who operated a store within the Navajo Nation, suing an Indian customer in the Arizona state courts. The non-Indian storeowner claimed that the Indian customer had not paid for goods sold to him on credit. The Supreme Court ruled “to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over reservation affairs and hence would infringe on the right of the Indians to govern themselves.” The U.S. Supreme Court upheld the exclusive jurisdiction of the Navajo Tribal Court over the collection of a debt owed by an Indian to a non-Indian merchant on the reservation. A new judicial ‘test’ emerged with this case: if the state intrusion does not infringe upon tribal self-government, the state may extend its civil jurisdiction into the reservation.

In the early 1960s, Congress began hearings concerning claims that tribal courts do not provide basic due process rights to Indian criminal defendants. In 1968 following seven years of Congressional hearings and debates, both within and outside the Indian community, Congress passed the Indian Civil Rights Act (ICRA). That Act established a basic bill of rights for persons subject to the jurisdiction of Indian tribes. On one hand it reaffirmed judicial powers of tribal self-government, but on the other it placed certain standards on tribal courts while providing no funding to enable tribes to restructure or improve their court systems.

At the heart of the Indian Civil Rights Act (ICRA) is the obligation of tribes to provide a basic fundamental fairness through due process and equal protection, in tribal operations. However, it is important to know that legislative history describes Congress’ intent that the meanings of these terms be tribal meanings rather than state or federal interpretations of these terms. The ICRA affects tribal court procedures particularly in the area of criminal jurisdiction. It requires basic due process rights for defendants, mandates a trial jury system if the defendant wants it for offenses with potential jail penalties, authorizes defendants in criminal proceedings to use lawyers at their own expense, and requires that laws be applied equally to all persons. It also limited tribal court sentencing to 6 months in jail and/or a $500 fine upon conviction for any one offense. This limit was later raised to 1 year in jail and/or $5,000. On another note, the ICRA amended Public Law 280 to require tribal consent before states may assume jurisdiction over Indians within Indian country.

By the late 1960s, Congress embraced a policy of promoting tribal self-government and increasing funding for tribal court operations, though many courts remained under-funded and under-staffed. Most tribes lacked resources to make procedural changes required by the ICRA and expanded tribal jurisdiction. The National American Indian Court Judges Association (NAICJA) was formed for the purpose of improving tribal court operations at this time.

During the 1970s, both Congress and the U.S. Supreme Court were very active in Indian affairs. Congress passed several pieces of significant Indian legislation and the Supreme Court heard an abundance of Indian cases. The Congressional act passed in the 1970s that most directly affected tribal courts was the Indian Child Welfare Act (ICWA). The Act basically requires state courts to notify tribal governments when a “child in need of aid” custody or adoption proceeding is initiated in state court that involves a tribal child. It also gives tribes the right to intervene, which means to become a party to the case as an advisor to state court, in state court custody cases involving tribal children.

Three significant U.S. Supreme cases affecting tribal court jurisdiction from the 1970s were: Oliphant v. Suquamish (1978), U.S. v. Wheeler (1978), and Santa Clara Pueblo v. Martinez (1978). A significant setback for tribal jurisdiction was established by the decision of the Supreme Court in the Oliphant (1978) case. The Court ruled that Indian tribes have no inherent power to prosecute and punish non-Indians who commit crimes on Indian reservations, unless the tribe has been granted such power in a treaty, agreement, or act of Congress. There is no law that specifically removed the tribal power to assert criminal jurisdiction over non-Indians, however, the Supreme Court ruled that the exercise of this power is “inconsistent with the status” of Indian tribes. For the first time, the Supreme Court declared that a fundamental tribal power could be extinguished by implication. After the Oliphant case, many tribes began a process to decriminalize their codes, meaning that they handle cases as civil cases instead of criminal cases, since tribal governments were left without criminal jurisdiction over non-Natives.

Shortly after the startling Oliphant decision, the Supreme Court issued a ruling in U.S. v. Wheeler (1978) that helped to reaffirm the sovereign nature of Indian tribes. This case held that because Indian tribal courts and federal courts derive their authority from separate sovereigns, the double jeopardy clause of the U.S. Constitution does not prohibit prosecution in federal court of an Indian defendant already tried and sentenced for the same offense in tribal court. The case arose on the Navajo reservation and involved a crime committed by a Navajo tribal member.

A positive note for tribal sovereignty was struck in the last major Indian law decision by the Supreme Court in 1970s, in Santa Clara Pueblo v. Martinez (1978). The case involved a Santa Clara Pueblo woman who brought suit against tribal officials because the tribe denied tribal enrollment to children of female members who marry nonmembers, but not to children of male members who marry nonmembers. Ms. Martinez argued that the difference in treatment between male and female members of the tribe violated the equal protection requirement of the Indian Civil Rights Act. In this case, however, the United States Supreme Court decided that federal courts should not interpret what the meaning of equal protection is for tribes.

The Court held in the Martinez case that the Indian Civil Rights Act does not grant federal courts the power to decide civil rights cases on Indian reservations, except those involving criminal matters where a release from custody is sought. In those cases, a writ of habeas corpus challenging an allegedly unlawful imprisonment is the procedural tool. The Court reasoned that to impose standards of U.S. constitutional law would cause “unnecessary intrusions on tribal governments” and would threaten a tribe’s ability to “maintain itself as a culturally and politically distinct entity.” Tribal courts were identified as the only appropriate forum for applying such ICRA principles as equal protection and due process in a manner consistent with traditional Indian values and customs.

In 1981, the Supreme Court acknowledged that tribal courts have inherent civil authority, even over actions of non-Indians, that affect tribal interests such as “the political integrity, economic security, and health or welfare of the tribes” in Montana v. United States. The case sets out a test for tribal court judges to use when deciding whether or not to assert civil jurisdiction over activities of non-Natives. The four questions for tribal court judges to ask are: 1) Has the non-Native entered into any consensual relationship with the tribe or its members?, 2) Does this non-Native’s activity threaten or have some direct effect the political integrity of the tribe?, 3) Does this non-Native’s activity threaten or have some direct effect on the economic security of the tribe?, 4) Does this non-Native’s activity threaten or have some direct effect on the health or welfare of the tribe? Through this case, the Supreme Court offered guidelines for gaining federal approval of the exercise of tribal court civil jurisdiction, but also put tribes in a defensive position in potentially having to prove affects of non-Native actions on the tribes.

In 1985, the Supreme Court addressed the question of whether or not non-Natives may challenge tribal jurisdiction in federal courts in National Farmers Union Insurance Co. v. Crow Tribe of Indians. In this case, the Court held that non-Indians who challenge a tribe’s jurisdiction must first raise the issue in tribal court and exhaust tribal appellate procedures before raising the issue in a federal court. In other words, a case must be heard by a tribal court, and by a tribal appellate court before it can be taken to a federal court for a challenge tribal authority or procedures.

Although federal courts may have the final word regarding the scope of a tribe’s jurisdiction, federal courts may not address this question until the tribal courts have done so. Given the National Farmers ruling, non-Indians who engage in activities affecting a tribe should expect that their actions are subject to tribal court jurisdiction. If a tribe does not have a court system, however, non-Indians may be able to take the issue to federal or state court systems right away. Also, exhaustion of tribal court remedies is not required when assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, where the action is obviously out of the scope of tribal jurisdiction, and when exhaustion would be futile because of the lack of adequate opportunity to challenge the court’s jurisdiction.

Brief History of Alaska Tribal Status and Courts

Before the purchase of Alaska in 1867, tribes in the Lower 48 had already undergone a lengthy history of interaction with the federal government. Treaty making was the typical way tribes were recognized in the legal sense and how aboriginal land claims were ‘settled.’ Congress terminated treaty making with Indian tribes in 1871, long before large numbers of settlers came to Alaska, resulting in the fact that there are no treaties with Indian tribes in Alaska. One hundred years later, in 1971, aboriginal land claims for Alaska tribes were settled not by treaty, but in a unique way through the Alaska Native Claims Settlement Act (ANCSA). Although the Act settled aboriginal land claims, it left legal questions about tribal status, jurisdiction, and hunting and fishing rights.

Even though tribes were mentioned in the 1867 purchase agreement with Russia in the Russian-American Treaty of Cession, tribes in Alaska endured a long hard battle for formal recognition of their status. It was through the efforts of Sheldon Jackson, who was appointed to the Interior Department’s Alaska Education program in 1885, that the federal government’s political relationship to Alaska Natives began to take shape. Over the course of the next 30 years, the Bureau of Education developed a network of Native village schools, established the Native reindeer industry, extended medical care specifically for Alaska Native people, and established village cooperative stores, sawmills, and salmon canneries. Additionally, some 150 reservations were established for the benefit of Alaska Native people. All of these programs were focused on Native villages, and the agents of the federal government dealt with representatives of the aboriginal governments in the course of providing federal programs for their benefit. Through these early programs, the government-to-government relationship between Alaska tribes and the federal government took root.

Congress included Alaska tribes in the Indian Reorganization Act in the 1930s, and then again recognized Alaska tribes by the settlement of their aboriginal land claims in 1971. However, tribes still faced a lack of recognition by the State of Alaska. In the 1980s, the Alaska Supreme Court heard several cases affecting tribes in Alaska and made both favorable and unfavorable decisions for Alaska Natives. In 1988, the Court ruled that there were no tribes in Alaska except for Metlakatla and perhaps a few others in Stevens v. Alaska Management & Planning. However, in the following year, 1989, the Alaska Supreme Court made a favorable ruling for Alaska Native villages in the Nome Eskimo Community case. In that case, the Court ruled that land cannot be taken away without tribal consent if the village is organized under the Indian Reorganization Act. The Alaska Supreme Court recognized the Indian Reorganization Act and the protection it gives for land, but still did not recognize tribal status for Alaska tribes in this case.

In 1990, Governor Steve Cowper issued a tribal status policy recognizing that tribes exist in Alaska through Administrative Order No. 123. The Order recognized only a few limited tribal powers, however. According to the Order, tribes could define their own membership and regulate their own purely internal affairs. It also recognized that tribes had powers expressly granted to them by the federal government, such as in the Indian Child Welfare Act. The Order did not recognize tribes to have broader powers such as those held by tribes on reservations.

The next governor, Governor Hickel, reversed the policy to recognize tribal status. Under Hickel, the policy was that of “all one people,” leaving no room for administrative recognition of a special political status for Alaska Native people. The following governor, Governor Knowles, was more sympathetic to Alaska tribes, but not supportive of some tribal powers for which Indian country would be necessary. At the 1997 Tanana Chiefs Convention in Fairbanks, Knowles spoke against the recognition of Indian country, especially the powers of taxation and regulation of fish and game. In 2000, however, Knowles established the first statewide tribal-state negotiations team to develop a tribal-state cooperative framework, a step along the way of government-to-government relations between tribes and the Alaska State government.

Both the administrative and judicial branches of the federal government were busy in the 1990s in the area of Alaska tribal status and Indian country. In the last days of President Bush’s term (January 11, 1993), the Department of Interior issued an opinion that ANCSA lands do not qualify as Indian country in a legal opinion titled: Governmental Jurisdiction of Alaska Native Villages Over Land and Non-members. This opinion is also known as the ‘Sansonetti Opinion.’ President Bill Clinton replaced President Bush just days after the Sansonetti Opinion was issued.

Clinton’s administration did not outright pull the Sansonetti Opinion but it did take a significant step toward tribal recognition the following fall. On October 21, 1993, the Department of the Interior (DOI) issued a list of tribes in the United States eligible for services from the Department. Previous DOI lists included Alaska tribes as tribal entities, which left the status of tribes unclear. The 1993 list named the Alaska villages recognized under ANCSA as tribes, and specifically stated that they have “all the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes.” The preamble to the list went on to state that “Inclusion on the list does not resolve the scope of powers of any particular tribe over land or non-members.” Although the Department of Interior established that federal Indian law should apply to Alaska as it does anywhere else in the U.S., it left the question of Indian country unsettled.

In 1994, Congress specifically confirmed the validity of the Department of Interior list through passage of the ‘Federally Recognized Indian Tribe List Act of 1994’ also known as the ‘Tribe List Act.’ The Act defines the term ‘Indian tribe’ as meaning any Indian or Alaska Native tribe that the Secretary of the Interior acknowledges to exist as an Indian tribe. The list is to be published by the Department of Interior annually and the Department cannot take a tribe off the list without an act of Congress. The only ways for a tribe not on the list to become federally recognized are through an act of Congress, a decision by a federal court, or by successfully going through the lengthy and expensive acknowledgement process established by Department of Interior regulation (CFR part 83).

In the 1990s, three primary federal cases developed affecting Alaska tribes, and all have rather lengthy histories. The cases are: 1) Native Village of Venetie IRA Council v. State of Alaska, 2) Native Village of Tyonek v. Puckett, 3) State of Alaska v. Native Village of Venetie. The first case involved state recognition of a traditional adoption, the second involved the power of a tribe to exclude someone from the village, and the third involved the power of a tribe to tax. A central question in all three cases involved the matter of tribal status. A second question for some aspects of these cases involved the existence of Indian country.

The first Venetie case, the adoption case, involved both the Venetie and the Fort Yukon Tribes and individual tribal members. The Native parties filed suit to require the State of Alaska to recognize tribal court adoption decrees. The State of Alaska argued that even if the villages involved had tribal status, Public Law 280 terminated tribal jurisdiction. The federal court ruled that Public Law 280 does not terminate tribal jurisdiction, but that it does give concurrent jurisdiction between the tribes and State. The Court went on to say that the tribal status question was settled by the Interior Departments publication of the list of federally recognized tribes on October 21, 1993 for all tribes on the list. The Court, however, ruled that the question of status for Alaska tribes prior to October 21, 1993 was unanswered.

In Native Village of Tyonek, the federal court held that Tyonek is a tribe and went on to say that the Interior Department’s list of recognized tribes was retroactive. In other words, tribes on the list had tribal status prior to October 21, 1993. The case put to rest the question of whether Tyonek and other Alaska tribes would be required to factually prove their tribal status for events occurring before 1993.

Venetie Tax Case and Indian Country:

In 1943, the Secretary of the Interior created a reservation for the Neets’aii Gwich’in Indians on approximately 1.8 million acres surrounding Venetie and Arctic Village on the south side of the Brooks Range. In 1971, Congress enacted the Alaska Native Claims Settlement Act that revoked the Venetie Reservation, and established a village corporation to which the former reservation land went. Shortly after, the Venetie people transferred all of that land from their village corporation to the Venetie Tribe. The Venetie Tribe’s name is on the deed to the land, meaning that Tribe holds it in fee simple title rather than the land being in trust as reservation land is.

In 1986, the State of Alaska entered into a joint venture with a private contractor to construct a public school in Venetie. The Tribe tried to impose a tax for conducting business on tribal land and the State refused to support the Tribe’s tax. State of Alaska v. Native Village of Venetie, was filed by the State to stop the Venetie Tribal Council from imposing the business tax. After years of working its way through the federal court system, U.S. District Judge Russel Holland found that although Venetie is a tribe, ANCSA terminated the Indian country status of their land. A finding of Indian country is basically necessary for a tribe to tax a person or entity against their will. The case was appealed to the Ninth Circuit Court of Appeals, which overturned Holland and ruled that the land in and around Venetie was Indian country.

The Ninth Circuit decision, however, was then appealed by the State of Alaska to the U.S. Supreme Court. The case came before the U.S. Supreme Court on December 10th of 1997, and its decision was issued On February 25th, 1998. The U.S. Supreme Court held that since the land in question had gone through ANCSA, it does not have Indian country status.

Although the land owned by the Venetie Tribe is not Indian country under the U.S. Supreme Court decision, the Tribe has federally recognized status and is the owner of the land. Tribal status combined with land ownership give the Neets’aii Gwich’in a substantial amount of control and immunities over activities on their land. The Venetie case does not rule out the possibility of Indian country for Alaska Native townsites and allotments, neither of which were issues in the Venetie case.

State Recognition of Tribes and Tribal Courts in Alaska:

At the end of the 1990s, the Alaska Supreme Court recognized the existence of federally recognized tribes and their inherent powers of self-government over members in a case called John v Baker (1999). The case was an extreme departure from earlier Alaska Supreme Court decisions. The case involved a custody dispute between two tribal members who sought and received a tribal court determination of joint custody over their children. The father however, was unhappy with the tribal court decision and sought sole custody over the children in state court. The mother moved to dismiss the case from the state superior court and was denied. She then appealed the decision to the Alaska Supreme Court. The Court basically overturned its earlier decisions and recognized the tribe and its jurisdiction over the custody case even in the absence of Indian country.

The decision of the John v Baker case was greatly needed to further state recognition of and cooperation with tribes in Alaska. The case removed a critical roadblock in progressing towards this goal, and places Alaska tribes in a much better position to benefit from both federal and state recognition as they progress into the 21st century.

The Alaska State Supreme Court further supported tribal recognition and jurisdiction in August of 2001 in a case called C.R.H. The C.R.H. case involved a child in need of aid who was eligible for tribal membership in both the village of Nikolai and Chickaloon. Chickaloon intervened in the state ICWA case before Nikolai, but later turned over their status as the ICWA tribe to Nikolai. Nikolai then made a motion to have the case transferred to the Nikolai Edzeno Tribal Court. In earlier cases concerning transferring jurisdiction under ICWA to tribes, the Alaska Supreme Court had basically held that even if there were tribes in Alaska, P.L. 280 terminated jurisdiction they might have. The State Supreme Court reversed that faulty reasoning in C.R.H. and held that ICWA cases in state court could be transferred to tribal courts, reversing earlier Supreme Court decisions on this issue.

Conclusion

Modern tribal courts face tremendous challenges in taking care of tribal justice needs and in harmonizing tribal law and customs with the requirements to comply with due process and other conditions placed on them by the Anglo system of justice. They face these challenges on a chronically underfunded basis. The maze of jurisdictional issues in sorting out tribal jurisdiction in relation to state and federal jurisdiction is staggering, with thousands of treaties, statutes, executive orders, court decisions, and agency rulings that all come into play. Dramatically shifting federal policies between assimilation and termination, to self-determination has created a web of contradictory laws.

Through all the surrounding conflicts and confusion, however, tribes have managed to survive, and even flourish. Building and maintaining effective judicial systems is critical to maintaining tribal health. An important element in that effort is that tribes do not need to create Anglo style court systems, but may incorporate more traditional methods of dispute and conflict resolution into their court systems.

The end of the 1990s struck a positive note in tribal state relations for Alaska tribes, with the Alaska Supreme Court recognizing their existence, and recognizing at least to a limited extent, tribal court jurisdiction even in the absence of Indian country. The beginning of the 21st century offers Alaska tribes both opportunities and challenges in developing their tribal court systems.

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