The opinion
FERNANDEZ, Circuit Judge,
concurring:
Because judges are historically minded and experts at analogical reasoning, it is very tempting to treat ANCSA as just another statute to be adjudged as if it were a mere continuation of prior Indian policy. A continuation, that is, if that policy can really be called continuous. But ANCSA was intended to be and was something very different. It attempted to preserve Indian tribes, but simultaneously attempted to sever them from the land; it attempted to leave them as sovereign entities for some purposes, but as sovereigns without territorial reach. Thus, the land and the vast sums of money made available did not go to the tribes. It went into mere private corporations.
Those corporations were to be separate from the tribes, could sell land, and could even be taxable eventually, although the land could also be placed in tax-free preserves, just as anyone else’s land can be under proper circumstances. The tribes were no longer land based; they were member based. In short, Congress wanted to provide for “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 ...” in Alaska. 43 U.S.C. § 1601 (b). The tribes would continue as sovereigns, but there would be no more Indian country because the land would not be set aside by the United States “for the use of the Indians as such.” United States v. Pelican, 232 U.S. 442, 449 , 34 S.Ct. 396, 399 , 58 L.Ed. 676 (1914). Nor would it remain “under the superintendence of the government.” Id.; see also Op. Sol. Gen. of Dep’t of Interior, M-36975, 131-33 (Jan. 11, 1993).
Let me put it a slightly different way. The reason that the old Indian country test will not work is that Congress’s new conception was to maintain tribal sovereignty and to maintain a federal interest in and protection of Indians and tribes, but to separate the land, and an almost billion-dollar fund, from the tribes themselves. That left a potent resource in the hands of the Indian peoples. It also left tribal sovereignty intact, but it simultáneously precluded that sovereignty from being reified in the form of control over land.
In so doing, Congress disassociated the land from all other claims, including Indian country claims. It did so explicitly when it extinguished all claims “based on claims , of aboriginal right, title, use, or occupancy of land ... or ... based on any statute or treaty_” 43 U.S.C. § 1603 (c). The very idea of Indian country is, of course, a notion incorporated into a statute. See 43 U.S.C. § 1151 . Moreover, the assertion of § 1151 sovereignty over territory is a claim which is necessarily based upon aboriginal title, statute, or treaty. Both were abolished. As we have previously recognized, the provenance of ANCSA was unique, so even the old rule of construction of statutes in favor of Indians “operates with less force.” United States v. Atlantic Richfield Co., 612 F.2d 1132, 1139 (9th Cir.1980). That uniqueness is why the old tests just do not work.
Of course, the land deeded to the private corporations was for the benefit of their Indian stockholders, just as the money was for their benefit. Of course, those same Indian stockholders tended to be members of tribes, though they did not need to be. Of course, the government retained its interest in the tribes, as such, and in the Indian peoples themselves. Perhaps riot every group could show cohesiveness, but it certainly is true that the land was set aside for Indian peoples ab initio, although in no sense was most of it for their exclusive use, occupancy, or protec *1304 tion any more than land owned by any other corporate entity is for the use, occupancy, or protection of its members. But all of that is really rather irrelevant under the new regime. If ANCSA meant anything at all, it meant that the tribés, as such, would no longer have control or sovereign power over the land. They would only have sovereignty over their members. As far as the land was concerned, the regular state and federal political entities would have and retain the necessary power. In short, it was no longer necessary to explicate and mull over previous Indian country concepts. That was the promise of the new era. When Congress did all of that, it created something rather different, rather unique, rather simple, and yet rather daedalian.
We have been asked to confuse matters by applying out-of-date theories to a truly new concept of Indian relationships and sovereignty. We have been asked to blow up a blizzard of litigation throughout the State of Alaska as each and every tribe seeks to test the limits of its power over what it deems to be its Indian country. There are hundreds of tribes, and the litigation permutations are as vast as the capacity of fine human minds can make them. They can include claims to freedom from state taxation and regulation, claims to regulate and tax for tribal purposes, assertions of sovereignty over vast areas of Alaska, and even assertions that tribes can regulate and tax the various corporations created to hold ANCSA land. The latter assertion would give the tribes the power to control, regulate, and tax those corporations out of existence and would provide a fruitful area for intertribal conflict. This is no imaginative parade of horribles. In the cases before us today, one tribe, Kluti Kaah, seeks sovereignty over an area as unlike Indian country as one could imagine. The other seeks sovereignty, and has been made sovereign, over a piece of the State of Alaska about as large as the State of Delaware. Furthermore, both Kluti Kaah and Venetie assured us at argument that tribes, as they see it, do have the power to tax and regulate the myriad of private corporations which received land under ANCSA.
Were we writing on a clean slate, I would eschew the tribe’s request and would avoid creating the kind of chaos that the 92nd Congress wisely sought to avoid. Alas, it is too late because we have already taken the position that ANCSA did not eliminate Indian country in Alaska. We have directed that decisions be made on a ease-by-case basis. See State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1390-91 (9th Cir.1988) (Venetie I); cf. Native Village of Tyonek v. Puckett, 957 F.2d 631, 634 (9th Cir.1992). It is unfortunate that what could have been a tessellation is to be a crazy quilt instead. But if we are to have that quilt, I agree that Venetie’s territory is Indian country, if any still exists in Alaska. 1 Needless to say, I do not embrace that result with the gusto shown by the majority, and I do not accept all of the majority’s reasoning.
Nevertheless, under the compulsion of orn-eases, I concur in the result.
. Of course, I recognize that there is an exception. One reservation was preserved. See 43 U.S.C. § 1618 (a).