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Testimony

Submitted to the
Alaska Natives Commission
in connection with a hearing at

Fairbanks, Alaska
July 18, 1992

ALASKA NATIVES COMMISSION
JOINT FEDERAL-STATE COMMISSION
ON
POLICIES AND PROGRAMS AFFECTING ALASKA NATIVES
4000 Old Seward Highway, Suite 100
Anchorage, Alaska 99503

TABLE OF CONTENTS

Witness List | Exhibit List | PDF Version

 

Deposition Exhibit #6 - Testimony of Shirley L. Lee

 

TESTIMONY BEFORE THE
ALASKA NATIVE COMMISSION
ON
TRIBAL GOVERNANCE ISSUES

Shirley L. Lee, Director
Village Government Services
July 18, 1992

CONTENTS

Introduction
Proposed DOI Solicitor's Opinion on Tribal Status in Alaska
Federally Recognized Tribes and Alaska "Native Entities"
Tribal Courts
Indian Reorganization Act Constitution
Tribal Facilities
Equity of Bureau of Indian Affairs OIP Funding between Alaskan and Lower 48 Tribes

INTRODUCTION

When the words "tribal government" or "sovereignty" are used many people become confused. They do not understand tribes in Alaska do exist, both customarily and in a legal sense, and possess inherent powers unique only to tribal governments. Tribes in Alaska perpetuate timeless practices of self-government and traditions.

Many times there exist two governmental organizations in a village -the tribal government and a state municipality. Municipalities or cities are non-Native systems which do not incorporate tribal practices into their infrastructure. Tribal governments, on the other hand, reflect and utilize the culture and traditions of the tribe.

In Alaska, there are two forms of tribal governments. A tribe is either organized under common tribal law or under the Indian Reorganization Act (IRA) of June 19, 1934 (48 Stat. 984) as amended. The IRA, a federal statute, was passed in an effort to have tribes formally organized pursuant to an "Anglo" system. It was applied to Alaska in 1936.

There has been much discussion on which government, traditional or IRA, possesses the "most" powers. In recent court cases it has become apparent that tribes organized under the IRA seem to hold a stronger legal argument that they do indeed exist as a tribe and thus their powers are more easily identified.

Tribes organized under the IRA have a written constitution approved by the Secretary of Interior and this is perceived as having a stronger federal acknowledgement of tribal status as opposed to a traditional government which has not been federally organized. Regardless of this perception, tribes organized traditionally hold and exercise all powers enumerated in the IRA.

When we speak of being sovereign governments we refer to our right of self government. Only tribes themselves know what is culturally appropriate for their governmental operations. In order for tribes to function it is not required that their laws be written, that a tribal
institution be drafted or that their tribal membership be identified. That is a non-Native yardstick of existence which does not validate or invalidate tribal governments.

The lack of written documentation of tribes, coupled with the fact that only one reservation exists in Alaska, leads many people unfamiliar with Native laws to dismiss tribal governments. Unfortunately, tribes in Alaska must even fight to assert their very being. The following is a discussion of the current issues affecting tribal governments today. One of those issues is the status of
tribal governments in Alaska.

1. PROPOSED DOI SOLICITOR'S OPINION ON TRIBAL STATUS IN ALASKA.

Secretary of the Interior Lujan has directed the Interior Solicitor to prepare an opinion on tribal sovereignty in Alaska. Secretary Lujan has asked for "views on the nature and extent of governmental powers which an Alaska Native village may have over lands and non-members" because he "believes such an opinion would be useful to him in resolving questions which may arise in the context of approving the constitutions which villages are seeking to adopt pursuant [to the Indian Reorganization Act]".

The specific issues to be addressed by this opinion are unknown to us. It is generally believed that tribal status, Indian country, tribal authority and jurisdiction will be reviewed in such an opinion. The Secretary of the Interior is charged with the approval of IRA constitutions so long as they contain no language "contrary to applicable law". Applicable law is defined in the Indian Reorganization Act, P.L. 100-581, as being:

"[A] ny treaty, Executive Order or Act of Congress or any final decision of the Federal courts which are applicable to the tribe, and any other laws which are applicable to the tribe pursuant to an Act of Congress or by a final decision of the Federal courts."

The stated reason for the opinion is that the Secretary needs legal advice on what can and cannot be approved in IRA constitutions for Alaska. The basis for disapproval is clearly defined and any other reasons used for disapproval would be capricious. Additionally, we believe the Secretary is without authority to define tribal sovereignty issues in Alaska. These matters are for the courts to decide.

Too often, important decisions concerning tribes in Alaska are politically motivated. We have requested Secretary Lujan to withdraw his request for a Solicitor's opinion and to process IRA constitutions within the established and adequate guidelines already in place.

2. FEDERALLY RECOGNIZED TRIBES AND ALASKA "NATIVE ENTITIES".

Pursuant to 25 C.F.R. 83.6 the Secretary of the Interior is required to annually publish in the Federal Register a "list of all Indian tribes which are recognized and receiving services from the Bureau of Indian Affairs". Indian Tribe" is defined in those regulations as "any Indian group within the continental United States that the Secretary of Interior acknowledges to be an Indian tribe". (These regulations are being rewritten and hopefully the revision will clarify and correct the exclusion of Alaskan tribes from this definition).

Tribal status in Alaska is constantly being challenged, most notably by the State of Alaska. The state government has a long record of opposing tribal status and asserts that there are no tribes in Alaska but merely Native entities with membership based on race. The state refuses to deal with tribes in a government-to government relationship.

Meanwhile, Alaskan tribes continue to participate in and utilize federal tribal legislation such as the Self-Determination Act, the Indian Child Welfare Act and the Indian Reorganization Act. They could not utilize these laws if they did not possess sovereign powers. Native entities do not and cannot exercise such powers.

The required listing of tribes is important in that it identifies tribes with which the federal government maintains a government-to-government relationship and thus which tribes are entitled to federal services and protections.

The last list was published on December 29, 1988. It included a separate section for Alaska Native Entities which contained a lengthy preamble. The preamble set out criteria under which entities could be included in the list.

Generally, the list includes councils organized under the Indian Reorganization Act, village and regional corporations formed pursuant to the Alaska Native Claims Settlement Act (ANCSA), Native groups formed or identified under ANCSA and mere reference to a village. Traditional councils are not specifically addressed in the criteria or listed. This leaves the status of traditional councils in doubt.

Another major problem with this listing is that-not all "Alaska Native Entities" are included in it. The Juneau Area Office conducted a review of the 1988 listing in addition to subsequent listings and made recommendation to add villages and make further corrections. These recommendations were submitted to the Assistant Secretary of Indian Affairs on January 13. 1988.

To date no follow-up action has been taken by the Bureau. We are on record, together with many others affected by this matter, as having requested the 1988 list be rescinded, corrections made and a new list published.
Tribes do exist in Alaska. That has been recognized by the courts, most notably in Noatak v. Hoffman, 872 F.2d 1384, (9th Cir. 1989); which reaffirmed an earlier ruling that all Alaska Native villages organized under the 16 or listed in ANCSA have tribal status at least for purposes of suit under 28 U.S.C. 1362 and that they are tribes for purposes of the Eleventh Amendment to the United States Constitution.

The statements and structure of the federal listing is in direct contrast to Presidential policy of self-determination. President George Bush, in a written
statement dated June 14,1991, reaffirmed the government-to-government relationship between the federal government and the 500+ tribes in America, including the 200+ tribes in Alaska. In his policy statement President Bush commented that these government-to-government relation-ships were "the result of sovereign and independent tribal governments being incorporated into the fabric of our Nation, of Indian Tribes becoming what our courts have come to refer to as quasi-sovereign domestic dependent nations. These relationships certainly are not sustained by the Secretary's listing of Alaska tribal entities.

3. TRIBAL COURTS

One of the powers exercised by tribal governments is the administering of tribal justice. This is most often done through a tribal court. Again, many people might not recognize a tribal court in the village as there are numerous forms of organization and operations. Some tribes simply utilize their tribal councils as a court while others form a separate body. Some tribes adopted written laws or ordinances while others rely on customary practices.

Due to the great importance of protecting individual rights, including those of due process and equitable treatment guaranteed by the Indian Civil Rights Act of 1968, many tribes are working toward formalizing their tribal courts. This entails careful planning and implementation.

Throughout the years Alaska tribes have been on, the short end of the stick when it comes to tribal court funding and technical assistance from the Bureau of Indian Affairs. One tribe in all of Alaska was funded in Fiscal Year 1992 out of a one-million dollar BIA grant source. This grant money was available on a national competitive basis and some 13 tribes in Alaska applied. Fiscal 1991 also only saw one tribe in Alaska funded by BIA for tribal court grants.

Despite the lack of federal funding tribes strive to continue to operate their tribal courts. The need for training is great. We have urged Assistant Secretary of Indian Affairs, Eddie Brown, to evaluate the grant process for tribal court monies to Alaska and foresee an immediate need for a tribal court training center or program.

4. IRA CONSTITUTIONS

The Indian Reorganization Act of June 19, 1934 (48 Stat. 984) as amended, allows tribes to reorganize under federal statute. Tribes must submit a proposed constitution to the Secretary of the Interior for approval. A draft constitution goes through three levels of review at the Bureau of Indian Affairs. Reviews are done consecutively at the local Agency, Area Office and finally the Central Office in D.C. A tribal roll must also be submitted to identify eligible voters.

Until recently the Bureau withheld any action on IRA requests. (Most Alaska IRA requests on file with the Bureau were submitted at least ten years ago.) This practice was successfully challenged in court in Coyote Valley Band of Pomo Indians v. United States of America, 639 F. Supp. 165, 172 fn.7, (E.D. Cal. 1986). Because of this decision the IRA was amended on November 1, 1988 through P.L. 100-581, and set specific time frame for the processing of IRA requests.

While the processing of IRA requests has improved there remains problems. In the last two IRA elections held in Alaska, Assistant Secretary of Indian Affairs Eddie Brown has attached a disclaimer to the approval of the constitutions. This disclaimer states that Bureau approval does not validate any tribal assertions of powers over lands and non-members. (See discussion above on proposed Solicitor's Opinion on Tribal Status in Alaska.) This disclaimer, we believe, exceeds the Secretary's authority to issue approvals without attachments.

The State of Alaska and private groups opposed to tribal governments continue to delay the IRA process in Alaska by opposing the processing of IRA requests. Because of this political pressure legal questions are raised which further hinder the rights of tribes to reorganize as permitted by federal statute.

5. TRIBAL FACILITIES

While this is not a major issue we felt it deserved comment. In the rural villages office space is at a premium. Most tribes do not have tribal offices in which to conduct routine business. Tribes do not have easy access or the financial means to basic office equipment. They cannot simply type up a letter. This lack of tribal facilities directly affects effective tribal government delivery. TCC is working to improve this situation by employing a tribal administrator for each of the 43 tribes we serve and helping to secure office space and equipment.

6. EQUITY OF BIA OIP FUNDING FOR ALASKA.

Every year the Bureau of Indian Affairs allocates Operation of Indian Programs monies to BIA Agencies and tribes. As follow-up to an analysis of FY 1991 OIP distributions done by the Arizona Inter Tribal Council in January 1992, TCC prepared a report on OIP distributions for Fiscal Years 1992 and 1993. A copy of our report is available if needed.

Generally our research revealed that the Juneau Area Office of BIA comprises the third highest service population in the Bureau while it receives only about 3% of the national OIP funding. Additionally, Alaska is home to some 200 of the 500 tribes in America.

This inequity will be hard to resolve as the funding is based on existing distributions, needs and availability of funds. TCC continues to review this issue.


This document was ocr scanned. We have made every attempt to keep the online document the same as the original, including the recorder's original misspellings or typos.

 

 
 

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Last modified May 11, 2011