Hoping to protect rural Alaska women from violence, the U.S. House of Representatives wants to establish “Indian Country” in the 49th state and grant Native tribes police powers over non-Natives on what could be millions of acres of land.
Indian Country has long been a controversial subject in Alaska, but the House action has gone unnoticed and undiscussed in the state.
When the Alaska Native Claims Settlement Act of 1971 was enacted into law, it avoided the creation of Indian Country and set off on a new path toward resolving the inherent conflict between the descendants of the Native people who first moved into Alaska to claim the land and the descendants of the white people who came later to push the original inhabitants aside and take over.
With U.S. Indian reservations then viewed as little more than ghettos for Native Americans, ANCSA rejected creation of new reservations in favor of establishing 12 regional Native corporations and 226 village corporations to be seeded with 44 million acres of land and nearly $1 billion to build an economic future for Alaska Natives.
“Congress finds and declares that,” ANCSA said “the settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska.”
Abandoning the old model of reservations with their economic deprivation and Indian Country governed by tribal laws at the time seemed like a good idea to most Alaskans – both Native and white – but some Natives have since concluded it left them powerless.
Among their biggest complaints is the inability to enforce their own laws and a lack of state support in enforcing any laws. Law enforcement in rural areas is left to unarmed Village Public Safety Officers (VPSOs) and Alaska State Troopers who are present in only a few regional hubs.
Most villages lack a trooper, and usually see one only when he or she arrives to arrest someone. A House bill (H.R. 1585) to reauthorize the Violence Against Women Act of 1994 would change that by creating “a pilot project to allow up to five Indian tribes in Alaska to implement special tribal criminal jurisdiction” in rural areas.
The legislation goes on to define the area of enforcement:
“Indian Country Defined – For purposes of the pilot project…the definition of ‘Indian Country’ shall include Alaska Native-owned townsites, allotments and former reservations lands acquired in fee by Alaska Native Village Corporations pursuant to the Alaska Native Claims Settlement Act and other lands transferred in fee to Native villages.”
The bill would nullify a 1998 U.S. Supreme Court decision which went against the Native Village of Venetie on the south slope of the Brooks Range north of Fairbanks, and it could set the stage for expansion of other Indian-Country powers.
“In (the Venetie) decision the U.S. Supreme Court concluded that former reservation land transferred to an ANCSA village corporation and then subsequently transferred in fee to the tribe did not qualify as a ‘dependent Indian community’ and the land was therefore not Indian country,” former Alaska Attorney General Jahna Lindemuth wrote in an October 2017 legal opinion prepared for then-Gov. Bill Walker.
Lindemuth added, however, that “there remain open questions about Indian country in Alaska. Throughout Alaska, there are currently scattered non-ANCSA Alaska Native lands with federal interests: it is estimated that there are close to one million acres of restricted fee land granted under the Alaska Native Allotment Act of 1906 and the Alaska Native Townsite Act of 1926.”
She concluded the state’s 229 tribes – almost every village in Alaska has been designated a tribe – remain sovereign nations occupying a place within the state of Alaska, but there are issues with “the extent of that jurisdiction.”
The House bill, which appears to be moving rapidly toward passage, would significantly expand that jurisdiction.
Almost 50 years after passage of ANCSA, the well-intentioned plan to settle aboriginal land claims and bring all Alaskans together as economic equals struggling together toward the lofty goal of a colorblind society seems to have run headlong into the state’s rural-urban divide.
At the urban level, the legislation has arguably been a success. Based on annual revenues, Alaska Business ranked Native corporations among 15 of the top 20 businesses in the state. But that success, much of it built on contracting business outside of Alaska, in largely focused in the state’s largest city and has not trickled down to Natives living in more than 200 villages scattered across rural Alaska.
Anchorage got multi-story office buildings and good-paying jobs. Rural Alaska got not much. The disparities have only served to raise resentments and a feeling of powerlessness.
“Most Alaska Native Corporations (ANCs) do not make their hiring data public,” the report said. “But in 2009, (Sen. Claire) McCaskill’s Senate contracting subcommittee surveyed 19 ANCs and found that only 5 percent of their 45,000 employees were shareholders or relatives.”
“The unemployment in rural villages contributes to high levels of alcohol and drug abuse—historic problems in Alaska,” the report added. “ANCs contend that the lives of villagers have improved over time. But many of those improvements have come from federal or state programs, not ANCs.”
Frustrations with the lack of economic success and a widely held view that the state hasn’t done enough to help villages has led some to call for empowering rural residents by extending tribal sovereignty to large areas of rural Alaska.
In her opinion, Lindemuth noted that a U.S. Supreme Court in 1978 found that all U.S. tribes lacked “criminal jurisdiction to prosecute non-Indians, finding that such jurisdiction was ‘inconsistent with their status’ as sovereigns subordinate to the federal government.”
When the Violence Against Women Act was reauthorized in 2013, however, tribal polices and courts in the lower 48 were granted authority over non-Natives who assaulted women on reservations.
An Alaska attorney intimately familiar with Indian law said that Congress granting Alaska tribes the authority “to implement special tribal criminal jurisdiction” extends that authority northward.
Sen. Lisa Murkowski, R-Alaska, took some heat for failing to amend the law in 2013 to extend to Alaska tribes the authority to arrest and try non-tribal members.
“It’s the state’s position that anyone who moves through the villages who’s not a tribal member should not be handled by a local tribal court,” Myron Naneng, the president of the Bethel-based Association of Village Council Presidents told the Alaska Public Radio Network at the time. “But we move into urban areas ourselves, and we’re subject to state courts.”
Naneng and some other rural Native leaders think that unfair. The House would remedy this with the pilot program to empower tribes to prosecute non-tribal members who commit violent acts against women.