Federal Recognition of Alaska Tribes and Relations with the State of Alaska

Federal recognition of a tribe means that the federal government recognizes tribal sovereign powers and the right to certain services from the United States that are primarily delivered through the Bureau of Indian Affairs and Indian Health Service. Tribal recognition is a political classification and not a racial one, and is based in the fact that tribes were self-governing in America before settlers came over from Europe. Federal recognition creates government-to-government relationships between the federal and tribal governments. The federal government formally recognized many tribes in the Lower 48 by making treaties with them. Since treaty-making with Indian tribes ended just a few years after Alaska was purchased from Russia, recognition of Alaska tribes took a different path.

Aboriginal land claims are only settled with Indian tribes, not with Individual Indians. Therefore, any debate about whether or not there were federally recognized tribes in Alaska prior to ANCSA became irrelevant. After ANCSA, however, there was considerable debate and challenge as to whether or not ANCSA extinguished the status of the tribes in Alaska. The land settlement placed the land with profit-making Native corporations rather than with tribes, and Congressional findings in ANCSA specified that the settlement should be accomplished “…without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservations system or lengthy wardship or trusteeship, and without adding to the categories and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska.” The findings went on to say that the Act shall not diminish any federal obligations to protect and promote the rights or welfare of the Alaska Native people. Even though some thought these findings indicated that tribal status was terminated, the Act did not expressly terminate tribal status. After the Act passed, tribal activity was relatively quiet during the 1970s, and was mostly expressed through tribal organizations receiving federal money to provide services through the Indian Self-Determination and Education Assistance Act of 1975.

The tribal sovereignty movement in Alaska picked up during the 1980s, as tribes became more active in asserting their existence and jurisdiction through their tribal governments and courts. Tribal court activity increased tremendously as a result of the Indian Child Welfare Act. Tribes that did not have constitutions under the Indian Reorganization Act (IRA) pursued them in hopes of confirming tribal recognition. Tribes published tribal alcohol ordinances in the Federal Register, asserting jurisdiction over alcohol issues. Tribes also brought cases pursuing their existence and jurisdiction in front of federal and state courts. Tribal leaders made active efforts to specifically include Alaska tribes in any federal legislation affecting tribes in the country. While tribes were asserting their existence and jurisdiction, the State of Alaska challenged the existence of tribes throughout the 1980s, even declaring that there were no tribes in Alaska except for Metlakatla and perhaps a few others in 1988 in an Alaska Supreme Court case called Stevens V. Alaska Management and Planning. On the federal front tribal status was confusing because Alaska tribes were listed as “Alaska Native Entities” and included among Native corporations on the list of federally recognized tribes.

In the 1990s federal recognition of Alaska tribes was clarified. In 1991, the U.S. Supreme Court heard a case called Blatchford v. Native Village of Noatak, holding that Noatak could not sue the State in federal court for not giving revenue sharing to tribal councils. The tribe may have ‘lost’ that case, but actually won an important point. The Supreme Court let stand the ruling of the Ninth Circuit Court which held that Noatak was a tribe because it was organized under the Indian Reorganization Act, and that the village of Circle (also involved in the case) was a tribe because it was named under ANCSA. This case helped pave the way to clarify federal recognition of tribes a few years later.

In the last days of President H. W. Bush’s term (January 11, 1993), the Department of Interior (DOI) issued an opinion that tribes do exist in Alaska, but 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 Opinion but it did take a significant step toward resolving the vagueness of federal recognition of tribes the following fall. On October 21, 1993, during the term of Assistant Secretary of Indian Affairs Ada Deer, 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 lengthy preamble to the list explicitly stated that: “The purpose of the current publication is to publish an Alaska list of entities conforming to the intent of 25 C.F.R. Sec. 83.6(b) and to eliminate any doubt as to the Department’s intention by expressly and unequivocally acknowledging that the Department has determined that the villages and regional tribes listed below are distinctly Native communities and have the same status as tribes in the continuous 48 states…This list is published to clarify that the villages and regional tribes listed below are not simply eligible for services, or recognized as tribes for certain narrow purposes. Rather, they have the same governmental status as other federally acknowledged Indian tribes by virtue of their status as Indian tribes with a government-to-government relationship with the United States; are entitled to the same protection, immunities, and privileges as other acknowledged tribes; have the right, subject to general principles of Federal Indian law, to exercise the same inherent and delegated authorities available to other tribes; and are subject to the same limitations imposed by law on other tribes.” (Bureau of Indian Affairs, List of Indian Entities Recognizedand Eligible to Receive Services from the United States Bureau of Indian Affairs, Oct. 1993).  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,” and so the issues of tribal jurisdiction and Indian country were not clarified.

Congress specifically confirmed the validity of the Department of Interior list through passage of the Federally Recognized Indian Tribe List Act of 1994.  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 (25 CFR Part 83).

Although recognition of Indian tribes is a federal decision, state governors are in control of all the state agencies that interface with tribes such as the State Troopers, Office of Children’s Services, and Bureau of Vital Statistics. Tribes find more support for their governmental and judicial activities when state governors recognize and support them. In Alaska, tribal recognition by governors varied widely during the 1990s. In 1990, Governor Steve Cowper issued Administrative Order 123, recognizing that there are tribes in Alaska, likely to be the same as those communities recognized in the Alaska Native Claims Settlement Act. The Order recognized the powers of tribes to be to regulate membership, to manage internal affairs of the tribe, and any powers delegated to tribes by the federal government such as through the Indian Child Welfare Act.

The next Governor, Walter J. Hickel, rescinded the Administrative Order 123. He described Alaskans as ‘all one people,’ leaving no room for administrative recognition of a special political status for Alaska Native people. The last Governor in the 1990s, Tony Knowles, recognized the tribes and started a major project called the ‘Millennium Agreement’ which was meant to be “a framework for the establishment of lasting government-to-government relationships and an implementation procedure to assure that such relationships are constructive and meaningful and further enhance cooperation between the parties.” After this point the governors came to accept that there are tribes in Alaska because the federal government had made it clear and because tribal self-governance brings in about a billion federal dollars annually to Alaska. The State turned its challenge to tribal jurisdiction. Governor Frank Murkowski ignored the Millennium Agreement and instituted an opinion through the Alaska Department of Law in 2004 that tribes cannot initiate children’s cases. During Governor Palin’s short time as governor, she continued to support the opinion as has Governor Parnell who replaced her in 2009. Although recent cases such as Kaltag and Tanana are forcing more State cooperation with Alaska tribes, the state will likely continue to protect its own sovereignty and challenge tribal jurisdiction well into the future.