Natalie Landreth and Erin Dougherty
Abstracted from: Natalie Landreth and Erin Dougherty, The Use of the Alaskan Native Claims Settlement Act to Justify Disparate Treatment of Alaska's Tribes, 36 American Indian Law Review 321 (2012)(161 Footnotes)
When the Alaska Native Claims Settlement Act (ANCSA) was passed in 1971, there was little mention of how it might affect tribal sovereignty or tribal jurisdiction. According to its own explicit terms, it was a land settlement: aboriginal claims were extinguished in exchange for 45.5 million acres of land in fee simple and almost $1 billion. Despite this rather narrow focus, in the years after 1971 the law became the hook on which lawyers and commentators hung their hats to argue that it was a de facto termination of Alaska's tribes. Some argued that, even if not technically terminated, Alaska's tribes no longer had any sovereignty or jurisdiction since they now lacked an Indian Country land base. Others focused on whether the trust responsibility survived at all, and thus whether Alaska's villages were even tribes anymore. Still others mistakenly thought corporations had replaced Alaska's tribes. In this way, ANCSA became another reason to treat Alaska's tribes as second-class citizens to which longstanding laws did not apply.
The strange truth is that no one seems to have given much of a thought to jurisdiction at the time, or even ten years later. The attack on tribal jurisdiction became an unintended consequence, an accidental byproduct, of ANCSA. Yet ANCSA would become the primary vehicle for attacking the most basic exercise of jurisdiction, and Alaska's tribes would find themselves struggling against a consequence they never envisioned and certainly never intended when they signed on the proverbial dotted line in 1971.
This article will discuss the context that surrounded passage of ANCSA and the Act's subsequent interpretation and implementation. With the benefit of forty years of hindsight, this article will evaluate whether the dire predictions about ANCSA's impact on Alaska's tribes have come to fruition. The article concludes that Alaska's 229 federally recognized tribes survived, sovereignty intact, and even retained a large measure of their jurisdiction simply because they are tribes. The loss of the majority of Indian Country did not cause a loss of jurisdiction in Alaska, but rather furthered the shift in the law from land-based to membership- and interest-based jurisdiction. Most importantly, Alaska's tribes have succeeded in establishing that they are not subject to different laws but must be treated like all other tribes, regardless of their sometimes unique history.
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In 2004, I walked into a client's office in rural Alaska. While speaking with the realty director, I saw over his shoulder a huge map of the village broken into blocks of varying colors, most of them red. In particular, the entire core of the village, with the sole exception of the school lands, was red. I asked what the different colors were, and I was told that the red blocks were allotments. I told them that their entire village was Indian Country. “Yeah,” they said, “we know.”
Had tribes been residing in Indian Country all along? Despite the years of negotiations about avoiding wardship or trusteeship over their lands, despite the arguments that they had in fact been terminated, and despite the series of cases about how Alaska's tribes were so very different because of the status of their land, Alaska's tribes had been living on allotments-restricted trust lands-for generations. To be sure, not all tribes are in the same situation as the client described above, but many are. Although the precise number of allotments is unknown, more than 16,000 people applied for them under the Alaska Native Allotment Act of 1906. Similarly, there are almost 4,000 village townsite lots, which are also restricted and only alienable with approval of the Secretary. Conservative estimates are that there are between four and six million acres of this type of Indian Country in Alaska, much of it likely concentrated in villages.
Given the prevalence of allotted land, does it really matter that ANCSA revoked the reservations? To be sure, the tribes would have had more land over which to exercise jurisdiction and would not have had to endure forty years of uncertainty, so yes, it matters. Moreover, it certainly matters to those tribes whose villages may not consist of allotments today. It just does not matter in the way many thought it would because the state of the law shifted as well.
With the benefit of forty years of hindsight it is safe to say that the post-ANCSA predictions of termination or a complete severance of the trust relationship have not come to fruition. The loss of the majority of Indian Country did not result in a loss of jurisdiction for Alaska's tribes, but became part of the nationwide shift in the law from land-based to membership-and interest-based jurisdiction. As noted by a colleague at the Native American Rights Fund, tribal sovereignty “does not stand or fall on the existence of Indian Country.” This is because ANCSA only created corporations-it did not terminate the tribes or tribal sovereignty.
. Natalie is a Senior Staff Attorney at the Native American Rights Fund (NARF) Alaska office. Erin is a Staff Attorney at the Native American Rights Fund (NARF) Alaska office.