Alaska Natives and American Laws: Third Edition / Edition 3

by David S. Case, David A. Voluck

Overview

Now in its third edition, Alaska Natives and American Laws is still the only work of its kind, canvassing federal law and its history as applied to the indigenous peoples of Alaska. Covering 1867 through 2011, the authors offer lucid explanations of the often-tangled history of policy and law as applied to Alaska’s first peoples. Divided conceptually into four broad themes of indigenous rights to land, subsistence, services, and sovereignty, the book offers a thorough and balanced analysis of the evolution of these rights in the forty-ninth state.
This third edition brings the volume fully up to date, with consideration of the broader evolution of indigenous rights in international law and recent developments on the ground in Alaska.

Product Details

ISBN-13:	9781602231757
Publisher:	University of Alaska Press
Publication date:	11/15/2012
Edition description:	3rd Edition
Pages:	499
Sales rank:	308,525
Product dimensions:	7.00(w) x 10.00(h) x 1.10(d)

About the Author

David S. Case represented Alaska Native tribal, corporate, and municipal legal interests for over thirty-six years, four of which he spent as an attorney for the Department of the Interior in the Office of the Alaska Regional Solicitor, concentrating on Alaska Native affairs. David Avraham Voluck is a magistrate for the Central Council of Tlingit and Haida Indian Tribes of Alaska and a visiting professor of Indian law for Lewis & Clark Law School’s Summer Indian Law Program.

Read an Excerpt

ALASKA NATIVES AND AMERICAN LAWS

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By DAVID S. CASE DAVID A. VOLUCK

University of Alaska Press

Copyright © 2012 University of Alaska Press
All right reserved.
ISBN: 978-1-60223-175-7

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Chapter One

The Federal Relationship to Alaska Natives

I. The Federal–native relationship generally

A. A Unique Relationship

Chief Justice John Marshall was the first American jurist of stature to define the nature of the federal relationship to the Indigenous Peoples of what is now the United States of America. He concluded in an early opinion that, although the relationship is unlike any other, it resembles that of a ward to his guardian. He did not say that the relationship is one of guardianship—only that it resembles such a relationship. Because the relationship is unique, perhaps the Chief Justice explained it in terms of a readily understood figure of speech, which he further expanded by describing what he considered to be the relationship of the Indigenous Peoples to the United States in the early nineteenth century:

They look to our government for protection; rely upon its kindness and its power; appeal to it for relief of their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory and an act of hostility.

The truly unique feature of the relationship, however, is that it also recognizes the internal sovereignty of Indigenous communities. They are, in Chief Justice Marshall's opinion:

distinct, independent political communities ... and the settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self-government—by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state.

The relationship is that of a stronger to a weaker government. Although it has admitted failings, this relationship acknowledges an inherent common law right of Indigenous Peoples to self-government. One emerging question is to what extent this federal common law right of self-government and other federal common law and statutory rights afforded Indigenous Peoples in the United States approach the right of self-determination and other indigenous human rights now evolving as principles of international law.

B. Common Law Basis

The fundamental principles of federal Indian law are common law principles derived more from history and experience than logic or fixed normative or constitutional principles of rights. Before he ascended to the United States Supreme Court bench, Oliver Wendell Holmes, Jr., famously noted of the common law:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men have had a good deal more to do than syllogism in determining the rules by which men should be governed.

Nothing better explains the common law arc of federal Indian law than this succinct summary of the "life of the law."

Chief Justice Marshall's foundational decisions in Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia looked to some extent to principles of international law, notably as those principles were said to have governed the relationships of the so-called "discovering" European powers contesting each others' claims to the Americas. The "Rule of Discovery" Marshall describes in Johnson v. M'Intosh endowed the first discovering power with the "sole right of acquiring the soil from the natives, and establishing settlements upon it." The relationships between the discovering power and the Indigenous Peoples were to be "regulated by themselves." Marshall does not explain what he means by that, but the implication is that the relationships between a discovering power and the Indigenous Peoples would be regulated by the usual political, diplomatic, and military means available to contesting political communities.

Contemporary legal scholars have grown increasingly critical of the ways in which federal Indian common law, driven by what might be summarized as the "felt necessities of the time" as well as the "prejudices which judges share with their fellow-men," has for nearly two hundred years defined, shaped, and all too often constricted the rights of the Indigenous Peoples in the United States.

In the very first case to come before the United States Supreme Court involving a significant Native American issue, Chief Justice John Marshall ominously described the American judicial system as "the Courts of the conqueror." Thus clothed, the Supreme Court handed down a sweeping opinion that appropriated legal title to the United States, even though most of the continent was still owned and occupied at the time by Indian tribes. Since that fateful decision in Johnson v. M'Intosh (1823), American law has often worked against Native Americans, legitimizing the appropriation of their property and the decline of their political, human, and cultural rights as Indigenous peoples in the hands of the government.

In the next case, Cherokee Nation v. Georgia (1831), Marshall held that although it was an "imposing argument" that the Cherokee were a foreign nation, viewed through what might well be called the "intuitions of public policy" the relationships between the Indians and the United States were "unlike that of any other two people in existence" and "marked by peculiar and cardinal distinctions which exist nowhere else." In a classic common law explanation that to this day describes the nature of tribal sovereignty under principles of federal Indian law Marshall concluded that:

[I]t may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases.

Marshall's later decision in Worcester v. Georgia attempted to modify these earlier conclusions and invoked the United States Constitution to uphold the superior authority of a federal treaty with the Cherokee against a challenge from the State of Georgia. Georgia argued that state law applied to the Cherokee Nation and for all practical purposes abrogated its existence. As noted above, Marshall's decision in Worcester v. Georgia had the indirect effect of preserving tribal governments as "distinct, independent, political communities," but only as a matter of common law, not as a matter of right entrenched in the United States Constitution. Indeed and as discussed further below, by the middle of the nineteenth century federal authority under the Indian Commerce Clause (affording Congress the power to "regulate commerce with foreign nations, among the several states and with the Indian tribes") had been transformed by judicially made common law into a source of "plenary" (complete) power for purposes of federal Indian law. Such that Congress could pass laws regulating crimes committed on Indian reservations, even though it was acknowledged that crime had nothing to do with "commerce." In the mid-twentieth century the U.S. Supreme Court concluded in an Alaska case, relying on the precedent of Johnson v. M'Intosh and "[i]n the light of the history of Indian relations in this Nation," that taking of aboriginal title by the United States did not require compensation as for the taking of private property for public purposes under the Fifth Amendment.

Tribal political authority expanded for a time in the 1960s and early 1970s when tribal sovereignty was viewed at least as a common law "backdrop" to the Supreme Court's Indian law decisions and the key question appeared to be whether state laws "infringed" on reservation self-government. These decisions are often viewed as the high-water mark of the Supreme Court's modern tribal sovereignty jurisprudence. By the last quarter of the twentieth century, perhaps due again to the "intuitions of public policy" and judicial prejudices, the common law tide ebbed away from those conclusions. Beginning in 1978 with Oliphant v. Suquamish Indian Tribe, the Court's decisions began to reflect the subjective views of the majority of the justices and to systematically cut against the exercise of tribal authority especially over non-Indians and nonmembers.

As the progressive era of Indian law jurisprudence has receded, the new tendency in the Court's tests, rules, and rhetoric is to define tribal powers according to policies, values, and assumptions prevalent in non-Indian society. Past judicial decisions led to broader exercises of tribal governance. But as tribal assertions of jurisdiction became more extensive, the Court started to retreat from its affirmations of unextinguished tribal powers, altering the margins of the tribes' jurisdiction in order to preserve the values and interests of the larger society.

In Alaska, though, there appears to be an eddy running counter to this trend. In 1998, the U.S. Supreme Court had held that lands conveyed under the Alaska Native Claims Settlement Act (ANCSA) and now held in fee title by an Alaska Native tribe were not "Indian Country" for purposes of tribal taxation of activities within the borders of tribal fee-owned lands. The decision eliminated any territorial basis for tribal jurisdiction throughout most of Alaska. The next year, the Alaska Supreme Court, after reviewing over two hundred years of U.S. Supreme Court common law precedent, departed from its own precedent to conclude for the first time in American history that even without territory, tribes had common law jurisdiction to adjudicate custody disputes involving tribal children based solely on their membership or eligibility for membership in the tribe. In 2011 the same court upheld concurrent jurisdiction of Alaska Native tribal courts to adjudicate custody cases under the federal Indian Child Welfare Act and overruled its own contrary precedents going back some twenty years.

The U.S. Supreme Court's common law decisions demonstrate that the rights of the Indigenous Peoples in the United States are not embedded in the United States Constitution nor are they principally determined by any other normative principles. The rights of the Indian tribes (such as the Cherokee Nation) were also often determined according to the language of treaties with specific tribes or specific statutes relative to a particular dispute. Together with the common law "backdrop" of sovereignty those treaties and statutes were often interpreted in the 1960s and early 1970s to support tribal political authority on treaty-protected reservations. The late twentieth century to the present has seen a consistent erosion of the federal common law rights of Indigenous Peoples. The erosion of those common law rights at the same time has been accompanied by a significant expansion of federal statutory programs by enactment of some fifty statutes since 1971. These include direct tribal access to federal funding under the federal Indian Self-Determination and Education Assistance Act and expansion of tribal jurisdiction to protect tribal children under the Indian Child Welfare Act. Moreover, and for the first time in nearly five hundred years, the late twentieth and the early twenty-first centuries (from roughly 1982 to 2007) saw the beginning of the evolution of international legal principles devoted solely to the protection of the rights of Indigenous Peoples, culminating on September 13, 2007, in the United Nations General Assembly's adoption of the Declaration on the Rights of Indigenous Peoples discussed further below.

C. International Legal Principles

1. Spanish Origins 2. Christopher Columbus's encounter in 1492 with the Indigenous Peoples of what was to become the Americas set in motion efforts within the Catholic Church, Spain, and later the Holy Roman Empire to define the rights of Spain and Portugal to the newly "discovered" lands. In the Catholic Church these efforts (usually in the form of Papal Bulls and Encyclicals) directly or indirectly defined the rights of the Indigenous Peoples as matters of what might today be considered principles of international law. Though originally addressing the imperial claims of Spain and Portugal, these Papal Bulls also influenced the legal principles applicable to the claims of other European imperial powers and their relationships with the Indigenous Peoples of the Americas.

Political goals and pressures heavily influenced these papal pronouncements. Pope Alexander VI's Bull Inter Caetera Divinae (issued May 4, 1493) wasted no time in getting to the subject of Spanish imperial control in the Americas. It allocated the newly discovered lands to the king and queen of Castile and Leon (Spain) along with the responsibility of converting the Indigenous Peoples to the Catholic faith:

[W]e, of our own accord ... and out of the fullness of our apostolic power ..., which we hold on earth, do by tenor of these presents ... give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever, together with all their dominions, cities, camps, places, and villages, and all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered towards the west and south, [by drawing a line from the north pole to the south pole one hundred leagues (360 miles) toward the west and south of the Azores and Cape Verde] no matter whether the said mainlands and islands are found and to be found in the direction of India or towards any other quarter ...

Paul VI was a native of Valencia and a personal friend of the Castilian King Ferdinand. There is little doubt that his personal history and relationships motivated his actions, which within the first year of his pontificate confirmed most of what was to become Central and South America to Spanish rule.

By its terms Inter Caetera purported to grant all the newly "discovered" lands to the Spanish Crown. Thus, unlike the English in later periods, the Spanish Crown did not initially grant land to its colonists. Instead, beginning in 1503 it granted them the right of the encomienda whereby the grantee (the "encomiendero") was supposedly entrusted with power to protect a specified number of Natives along with the responsibility to teach them Spanish and convert them to the Catholic faith. In exchange the encomiendero had the right to the labor of the Natives. The encomienda was an adaptation of the feudal system of tribute the Spanish Crown had employed after the conquest of Granada. It came to define the status of the Indigenous Peoples under Spanish rule and granted the settlers, conquistadors, and colonial officials trusteeship over the very people they had conquered. It quickly led to notorious abuses.

The first campaign to halt the mistreatment of the Indians sprang from an unlikely source and would result in the early articulation of the theory of universal human rights. Bartolomé de las Casas first met Christopher Columbus in 1493 as a boy of nine. His father and uncle sailed on Columbus's second voyage and were awarded encomiendas on the Island of Hispaniola (present-day Haiti and Dominican Republic), the site of Spain's first colonies. Las Casas, a bright student, was educated in some of the best Spanish schools, and in 1502 as a young man of about eighteen he sailed to the new Spanish colonies to work on his family's encomienda. There he farmed, owned slaves, and also acquired a plot of land. In 1510 he also became the first person to be ordained a Catholic priest in the Spanish colonies. Two years later at about the age of twenty-eight, he and a friend were rewarded with a large encomienda near the Ariamo River on Cuba. Throughout his early years in Hispaniola and Cuba the young Bartolomé had the same interests as the other Spanish colonists and conquistadores—gold and wealth earned from forced Indian labor.

Dominican friars arrived in the Spanish colonies about this same time. One refused las Casas's confession because of his participation in Indian oppression. Initially "the weight of property was heavier than principle." In Cuba between 1509 and 1513 he participated in the conquests of the Indians and extracting their labor under his encomienda. The turning point came when he witnessed an unprovoked massacre at Caonao, near Camagüey in southwestern Cuba. Angered beyond words he cursed the Spanish commander. Seeing the people return to their village, Las Casas would later recall:

To see them return caused [me] joy for they were going back to their own homes which was what they wanted, and it caused me pity and great compassion, considering their meekness, humility, and poverty, and what they had suffered, their banishment and their weariness, brought upon them by no fault of their own, the murder of their fathers, sons, brothers, and neighbors so cruelly accomplished—all, all set aside as done with and forgotten.

(Continues...)

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Excerpted from ALASKA NATIVES AND AMERICAN LAWS by DAVID S. CASE DAVID A. VOLUCK Copyright © 2012 by University of Alaska Press. Excerpted by permission of University of Alaska Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Foreword to the Third Edition xi

Foreword to the Second Edition xii

Foreword to the First Edition xiv

Acknowledgments to the Third Edition xv

Acknowledgments to the Second Edition xvi

Acknowledgments to the First Edition xvii

1 The Federal Relationship to Alaska Natives 1

I The Federal-Native Relationship Generally 1

A A Unique Relationship 1

B Common Law Basis 2

C International Legal Principles 6

D Federal Plenary Power 20

E Defining the Relationship 22

II History of the Alaska Native Relationship 24

A Early Years (1867-1905) 24

B Middle Period (1904-1971) 26

C ANCSA and Its Effect 33

III The Modern Relationship 40

A The Abstract Relationship 40

B The Specific Aspects 42

IV General Conclusions 50

2 Aboriginal Title 53

I Introduction 53

A Generally 54

B The Rule of Discovery 54

C M'Intosh-The Exclusive Right of Purchase 55

D Worcester-Protection Against States and Others 55

E Three Elements 56

II The Obligation to Protect Aboriginal Title 56

A Common Law Principle 56

B The Statutory Requirements 58

III Extinguishment of Aboriginal Title 60

A Purchase and Conquest 60

B Congress and Its Intent 60

IV Recognition and Other Rights to Compensation 61

A Recognized and Unrecognized Aboriginal Title 61

B Jurisdictional Acts 61

V Aboriginal Title in Alaska 61

A Introduction 61

B Treaty of 1867 62

C The Obligation of Protection 66

D Preserving the Status Quo 70

E Events After Statehood 72

F Alaska Native Claims Settlement Act (1971) 75

VI Conclusion 79

3 Reservations 81

I Introduction 81

A Alaska Pacific Fisheries v. United States 81

B General Principles 82

II Development and Decline of the Alaska Reservation Policy 85

A Eight Phases 85

B 1891-1919-Metlakatla and the First Executive Order Reserves 85

C 1920-1933-"Public Purpose" Reserves 96

D 1936-1940-Application of the IRA to Alaska and the Small Reservation Policy 98

E 1940-1943-Reversal of Policy and Creation of the Venetie Reserve 100

F 1944-1952-The IRA Reserves: A Policy Frustrated 100

G 1952-1960-Dormant Period 108

H 1960-1971-Restrictions and Revocation 108

III Some Conclusions 110

A Trust Responsibility to Land Before ANCSA 110

B Trust Responsibility to Land After ANCSA 111

C Guardianship 111

4 Native Allotments and Townsites 113

I Generally 113

II Allotments 114

A Allotment Policies 114

B Substantive Provisions of the Alaska Native Allotment Act 120

C Changing Alaska Allotment Policies 121

D From Trust to Restricted Status 134

E Allotment Administration 136

III Native Townsites 141

A Townsite Administration 141

B Federal Obligations 144

C Native Occupancy Rights 146

IV Jurisdictional Issues 152

A General 152

B Federal Court Jurisdiction 152

C Effect of P.L. 280 153

D Probate 156

E Federal Income Tax 161

F Condemnation 162

V Conclusion 162

5 ANCSA: The Alaska Native Claims Settlement Act 165

I Introduction 165

II Background: ANCSA's Compromises 167

III ANCSA's Provisions 170

A Generally 170

B Land Allocations 171

C "Surface" and "Subsurface" 174

D Easements and Other Encumbrances 174

E The Monetary Settlement 175

F Post-ANCSA Institutions 176

IV ANCSA's Evolution 179

A Generally 179

B Refinancing ANCSA (The NOLs) 180

C Growing ANCSA: 8(a) and Natural Resource Revenue 183

D Restructuring ANCSA 185

V Conclusions 198

6 History of Alaska Natives Services 199

I Overview 199

A Bureau of Education-1884 to 1931 199

B Bureau of Indian Affairs-1931 to Present 201

II Education 201

A History of Education in Alaska 201

B Status of Education in Alaska 205

C Federal Support for State Education 209

D Conclusion 211

III Economic Development 211

A Introduction 211

B Reindeer 212

C The Hydaburg Model Village 215

D Fish Canneries 216

E ANCSA and the Indian Financing Act 218

F Conclusion 220

IV Welfare Benefits and Services 221

A Introduction 221

B Copper Center and Vicinity-1907 to 1910 221

C The Snyder Act 222

D BIA Social Service Programs 224

E Conclusion 229

V Indian Health Service 229

A History (1868 to 1955) 229

B Native Health Conditions 230

C The Alaska Native Medical Center 231

D The Alaska Native Health Service 232

VI The Indian Self-Determination Act 232

A The 1975 Enactment 232

B 1988 Amendments 233

C 1994 Amendments 234

D BIA and IHS Compacting 235

VII Conclusion 235

7 Native Entitlement to Services 237

I Introduction 237

A Three Legal Theories 237

B Authority and Obligation 238

II Sources of Federal Authority to Provide Human Services 239

A Generally 239

B Guardianship as a Source of Federal Authority 239

C Guardianship in Alaska 242

D The Snyder Act 244

E Conclusion 245

III Federal Social Service Obligations 245

A Executive Obligations 245

B Due Process 246

C Statutory Entitlement 251

IV Beyond Due Process and Statutory Entitlement 256

A The Ruiz Approach 256

B The White v. Califano Approach 256

C Ruiz-Califano and the Transformation of Guardianship 257

V Indian Preferences 258

A Federal Indian Preference Legislation 258

B Federal Indian Preference Decisions 258

C ANCSA Preference 260

VI Conclusion 261

A Describing the "Legal Relationship" 261

B Authority and Obligation 261

C ANCSA and Federal Obligations 263

8 Subsistence in Alaska 265

I Protecting Subsistence Generally 265

A Introduction 265

B "Subsistence" 266

C Subsistence Protection Alternatives 267

II Federal Preemption in Alaska 270

A General 270

B Preemptive Treaties 271

C Preemptive Statutes 281

D Trust Responsibility for Subsistence 290

III Subsistence and ANCSA 291

A Introduction 291

B The Effect of ANCSA 291

C Problems with State Protection 292

D ANILCA 295

E Subsistence on the Outer Continental Shelf 315

F The Subsistence Defense in Federal and State Criminal Prosecutions 316

IV Possibilities for Tribal Control 318

A Introduction 318

B Exclusive Tribal Jurisdiction 319

C Exclusive State Jurisdiction 319

D Concurrent Jurisdiction 320

E Comanagement 321

V Conclusions 324

9 Modern Alaska Native Governments and Organizations 325

I Introduction 325

II Governmental Organizations 326

A Generally 326

B Territorial and State Muncipalities 326

C Traditional and IRA Governments 327

D Tlingit and Haida Central Council 335

III Economic Profit Corporations 341

A Generally 341

B IRA Corporations 341

C ANCSA Corporations 343

IV Nonprofit Development and Service Corporations 345

A Background 345

B Tanana Chiefs Conference 347

C Maniilaq Association 353

D General Conclusions 357

V Multiregional Political Organizations 357

A Introduction 357

B Alaska Native Brotherhood and Sisterhood 358

C Alaska Federation of Natives 362

D Tribal Advocacy Organizations 365

E Marine Mammal Commissions 367

F International Organizations 369

10 Sovereignty: Alaska Native Self-Government 373

I Introduction 373

A The Meaning of "Sovereignty" 373

B Alaska Native Self-Government 374

II Native American Sovereignty in General 376

A The Interplay of History and Law 376

B Inherent Sovereignty-The Most Basic Principle 377

C Preemption and Infringement-Limits on the States 378

D Powers of Native Governments 379

E Vacillating Federal Policies 381

III Legal History of Alaska Native Sovereignty 382

A Early History 382

B Change in Status 383

C The Indian Reorganization Act 384

D Tribal Political Status 387

IV ANCSA and Subsequent Events 389

A General Observations 389

B The Juridiction Problem 391

C Other Aspects of Sovereignty 392

D The Cultural Aspect 394

V State and Native Jurisdiction in Alaska 395

A Jurisdiction in General 395

B Jurisdiction over Territory: The "Indian Country" Question 397

C Jurisdiction over Persons and Property 399

D Subject Matter Jurisdiction 400

E Delegation and Other Expansions of Subject Matter Jurisdiction 405

F P.L. 280 406

G Sovereign Immunity 410

H Labor and Discrimination Laws 418

VI "Recognition" 421

A Basic Principles 421

B Federal Judical Recognition 422

C Federal Administrative Recognition 425

D Federal Legislative Recognition 427

E The State and Recognition 432

F Consultation 435

G Conclusion 436

VII Tribal Courts 437

A Tribal Court Roots 437

B Tribal Court Jurisdiction 437

C The Operation of Tribal Courts in Alaska 438

VIII Tribal Land Transfers 441

IX Conclusion 442

Bibliography 445

Table of Cases, Statutes, Regulations, and Materials 457

Opinions Cited 457

Cases Cited 458

Selected Statutes, Regulations, and Materials 470

Index 477

Editorial Reviews

For the lawyer and scholar fortunate enough to be involved in the complexities of the Alaska Native experience, this book is absolutely necessary.”

Monroe Price