Amicus Curiae Brief — Blatchford v. Native Village of Noatak

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ae | NATIVE VILLAGE OF NOATAK and

” a - Respondents. |

On Writ of Certiorari to the ’

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF TT'E

NA VILLAGE OF TANANA, NATIVE VILLAGE

900 W. 5th Ave., Suite 700

Anchorage, Alaska 99501

(907) 268-6377 -

Eric SMITH P

Box 202828

Anchorage, Alaska 99520

(907) 276-8451

DOT LAKE, VILLAGE OF EAGLE,

VILLAGE, NORTHWAY VILLAGR,

CANTWELL,

GULKANA VILLAGE, NATIVE VILLAGE OF GAKONA,

NATIVE VILLAGE OF AKHIOK, NATIVE VILLAGE

OF PORT LIONS, NATIVE VILLAGE OF

VILLAGE, NATIVE VILLAGE OF GOODNEWS BAY,

NATIVE VILLAGE OF HOOPER BAY, NATIVE

VILLAGE OF KASIGLUK, KONGIGANAK NATIVE

VILLAGE, VILLAGE OF KOTLIK, LIME VILLAGE,

at . ’

" ' . — se e.l!lUmU,!lUCU!lUe Oe eee

NATIVE VILLAGE OF MEKORYUK, NATIVE VILLAGE

OF MOUNTAIN VILLAGE, NAPASKIAK TRADITIONAL

VILLAGE, NEWTOK VILLAGE, NATIVE VILLAGE OF

NUNAPITCHUK, PILOT STATION TRADITIONAL

VILLAGE, NATIVE VILLAGE OF PITKA’S POINT,

NATIVE VILLAGE OF SHELDON’S POINT, ST. MARY’S

VILLAGE (ALGAACIQ), TULUKSAK NATIVE

COMMUNITY, NATIVE VILLAGE OF TUNTUTULIAK,

NATIVE VILLAGE OF TUNUNAK, NATIVE VILLAGE

OF ANDREAFSKY, NATIVE VILLAGE OF LOWER

KALSKAG, NATIVE VILLAGE OF HAMILTON,

STEBBINS COMMUNITY ASSOCIATION, TLINGIT AND

HAIDA INDIAN TRIBES OF ALASKA, COUNCIL OF

ATHABASCAN TRIBAL GOVERNMENTS, NORTHWEST

ARCTIC BOROUGH, ALASKA FEDERATION OF

NATIVES, AND ASSOCIATION ON AMERICAN

INDIAN AFFAIRS, INC.

IN SUPPORT OF RESPONDENTS

TABLE OF CONTENTS

EEE TL a AS Re

THE ALASKA NATIVE VILLAGES IDENTI-

FIED IN THE ALASKA NATIVE CLAIMS SET-

TLEMENT ACT OF 1971 ARE RECOGNIZED

TRIBES QUALIFIED TO BRING SUIT UNDER

a Ce SEINE crncpencnisincnliessesenetnanun ticienianidtadnlameainitihinn

A. Congressional and Executive Branch Determina-

tions Recognizing the Tribal Status of Native

American Groups are Primarily “Political Ques-

tions” which are Not Reviewable in the Courts.

In Enacting the Alaska Native Claims Settle-

ment Act of 1971 Congress Was Well Aware

that Alaska Natives Were and are Today Dis-

tinctly Native Communities Comprising Tribes.

The Tribal Status of Alaska Native Villages Is

Demonstrated by the Federal Government’s Re-

peated Recognition of that Status and by the

Extensive Governmental Activities The Villages

1. Since the Alaska Native Claims Settlement

Act of 1971 Congress and the Executive

Branch have Repeatedly Recognized the

Tribal Status of the Alaska Native Villages

Identified in ANCSA ..........0..

2. Congressional and Executive Branch Recog-

nition of the Tribal Status of Alaska Native

Villages is Consistent with the Activities of

the Tribes Today... cies ae

CONCLUSION

TABLE OF AUTHORITIES

CASES Page

Alaska v. Native Village of Venetie, 856 F.2d 1384

a 19

Aloysius v. Yukon-Kuskokwin Health Corporation,

No. 380-880-792 (E.E.0.C. Seattle Dist. Apr. 15,

ae A > a ee 24

Alvarado v. State, 486 P.2d 891 (Alaska 1971)... 18

Cook Inlet Native Assn. v. Bowen, 810 F.2d 1471

LE as oe ae 21

Fisher v. District Court, 424 US. 382 (1976)... 19

James v. U.S. Department of Health and Human

Services, 824 F.2d 1132 (D.C. Cir. 1987) .......... 7

Mashpee Tribe v. New Seabury Corp., 592 F.2d

575 (ist Cir.), cert. denied, 444 U.S. 866

Se ee Lace ae ee ee 7

Merrion v. Jicarilla Apache Tribe, 455 US. 130

ESERIES RIS aa ec 18

Moe v. Confederated Salish and Kootenai Tribes,

425 U.S. 463 (1976) ..... I a 18

Montoya v. United States, 180 U.S. 201 (1901) a 6

Morton v. Mancari, 417 U.S. 535 (1974) =

Native Village of Venetie v. State of Alaska, No.

88-3929, . F.2d (9th Cir. Nov. 6, 1990) . 18

Perrin v. United States, 232 U.S. 478 (1914) ' 7

Tee-Hit-Ton Indians v. United States, 348 U.S. 272

RS ee se eee 5, 9, 25

Tlingit and Haida Indians v. United States, 389

F.2d 778 (Ct. Cl. 1968) . 1

Tlingit and Haida Indians v. ‘United States, 177 F.

Supp. 452 (Ct. Cl. 1959) . » 13

U.S. v. Holliday, 70 U.S. (8 Wall. ) 407 (1865) 6,7

United States v. Berrigan, 2 Ak. Rpts. 442 (D.

CO ee 25

United States v. Quiver, 241 US. 602 (1916) 19

United States v. Sandoval, 231 U.S. 28 (1913) _7, 18, 22

United States v. Wheeler, 485 U.S. 313 (1978) 6, 22

United States v. Washington, 641 F.2d 1368 (9th

Cir. 1981), cert. denied, 454 U.S. 1148 (1982) 7

Worcester v. Georgia, 31 U.S. (6 Pet.) 515

SIIIIIIIID Gituiichatiaieninashentniadadiaanienanncnanatee ee 6

iii

TABLE OF AUTHORITIES—Continued

Wuitschick v. Copper River Native Assn., No. 380-

880-216 (E.E.0.C. Seattle Dist. Mar. 11, 1983). 24

Zharoff v. Kodiak Area Native Assn., No. 380-

880-136 (E.E.0.C. Seattle Dist. Mar. 11, 1988). 24

TREATIES, STATUTES AND

EXECUTIVE ORDERS

United States Constitution, Art. I, sec. 8, cl. 3...... 21

5 U.S.C. 3371(2) (C) Mins E ES Ee IEE TIS Et 20

13 U.S.C. 181, 184(1) ........................... cinkiiianiensies 20

15 U.S.C. 637 (a) (13) PS. Ee - 21

SS scaceiamndinibhdipaiiaieidaniaamemamniais 19

EES EE ee a A aN 27

Pub. L. 83-280 codified in part at 18 U.S.C. 1162 (a)

IT Sena 26

20 U.S.C. 4402 (5)... Ace a Sa ES eran 20

23 U.S.C. 101...... i aeE cidielicetieaaitadbietesemndnineiindiemieaas. 20

——* Eee Siselidiabsheiaianincieetaaine 7

| ae een CSTE eA ASE tew ee 7

EEE Ae oe ae PR en ee 7

Snyder Act of November 2, 1921, c. 115, 42 Stat.

208, 25 U.S.C. 13 . 25

Indian Self Determination and Education ‘Assist

ance Act of 1975, 25 U.S.C. 450 et seq. 2,21

Indian Reorganization Act of 1934, 25 U.S.C. 461

8 CEE nee ee nea ea 17, 25

25 U.S.C. 472a(f) (1) (A) - nm 20

Act of May 1, 1936, 49 Stat. 1250 codified it in : part

at 25 U.S.C. 473a PALES PIS ne cers Pee 8, 25

Reindeer Industry Act of 1937, c. _ 897, 50 Stat. 900,

i anaes ie 25

ete EAE en ere 5, 7, 17, 25

a oo seanesaeemieiiaieinneniieiiaiaaies 17

25 U.S.C. 1452(c) ....... 20

Indian Child Welfare Act of 1978, 25 U.S. C. 1901

et seq... = rater elaine tenet

25 U.S.C. 1903(8) —. acai eat horiias 19

25 U.S.C. 2011(f) (2) (A) ' 29

26 U.S.C. 7701 (40) # 22

TABLE OF AUTHORITIES—Continued

Page

EE TD . 25,8

OR ee 20

CC EE 20

31 U.S.C. 6701 (a) (5) (B) (repealed April 7, 1986,

Pub. L. 99-272, Title XIV, Sec. 14001 (a) (1), 100

EE SEE Ee 22

33 U.S.C. 1377 (h) (2) . : cheeeadineieieenaisaennniadaieaeieintemisiaaainds 21

42 U.S.C. 2000e(b) oa ESR EL Re 24

I ennai cae 20

42 U.S.C. 4701 _.............. Se ee ee cities 19

48 USC. 4768(6) ............................. ae eS ais a 19

LT 20

EET SIERO CN 20

42 U.S.C. 5318(n) (2) (A) a es 20

42 U.S.C. 5603(8) aE ae 22

42 U.S.C. 6707 (a) (1), “(h) (2) (B) . cate eee ade 20

42 U.S.C. 6723 (c) (3) (D) (ii) —... iacacaiieaa 20

EE eek aie 21

cn 19, 21

Pub. L. 101-549, amending 42 U.S.C. 7601 (a),

GSS a B19

eee 19

Alaska Native Claims Settlement Act of 1971, 43

TTS TATTLE _.... passim

I ebiniabies ed 17

43 U.S.C. 1610(b) (2) (B) —_.. Sa 18

43 U.S.C. 1610(b) (3) (B) _........................ : 18

Ce 18

a , 18

43 U.S.C. 1615(c) sae 18

43 U.S.C. 1615(d) . ed Set Ea Sy eee 19

43 U.S.C. 1620(d) .. . 17

Treaty of Cession, March 30, 1867, United States-

Russia, 15 Stat. 539, T.S. No. 301 3,8

District Organic Act of 1884, 23 Stat. 24 (1884) 3, 25

Second Organic Act of June 6, 1900, 31 Stat. 321 25

Alaska Native Allotment Act of 1906, c. 2469, 34

gE REP 25

TABLE OF AUTHORITIES—Continued

Territorial Organic Act of 1912 c. 387, 37 Stat. 512

I aac sce enceccnicereennrcnneccinsincnenneunennanenennnnnnenee

Native Townsite Act of 1926, c. 379, 44 Stat. 629.

Act of June 19, 1935, 49 Stat. 388...

‘Alaska Statehood Act of 1958, Pub. L. No. 85-508,

|)... 8) lO EEE

Act of August 19, 1965, 79 Stat. 543 _

Native American Grave Protection and Repatria-

tion of 1990, Pub. L. 101-601 . .. _..

Indian Child Protection and Family Violence Pre-

vention Act, Title IV, Pub. L. 101-630 .

Indian Arts and Crafts Act of 1990, Title I, ‘Pub. L.

Executive Order No. 1194 (April 26, 1910) .

REGULATIONS

5 C.F.R. 334.102 . Ie Sees ae Te

7C.F.R. 1944.656(¢) (2)

7 C.F.R. 3015 App. A. -

oe LO

10 C.F.R. 600.3

10 C.F.R. 600.402 we

13 C.F.R. 316.2

13 C.F.R. 317.2

13 C.F.R. 318.2

15 C.F.R. 243 .

22 C.F.R. 135.3

24 C.F.R. 85.3 . -

24 C.F.R. 571.4(k) ..

24 C.F. R. 5963

24 C.F.R. 600.7 (2)

24 C.F.R. 913.102

25 C.F.R. 23.2())

25 C.F.R. 26.1 ¢h)

25 C.F.R. 27.1¢j)

25 C.F.R. pts. 31, 32 and 8&3 (1990).

25 C.F.R. 81.1 ¢w) —

25 C.F.R. 87.1(2) seat dle .

(IB RB Ey ———————

Page

vi vii

TABLE OF AUTHORITIES—Continued

Page 7

25C.F.R.151.2(b),(c) ss t—s— 24 50 Fed. Reg. 6055 (Feb. 13,1985) ...................... 25

SCFR.262(f) ©... 23 51 Fed. Reg. 25115 (July 10,1986). 25

25 C.F_R. 286.1 (h) 24 51 Fed. Reg. 28779 (Aug. 11, 1986) 25

26 C_F_R. 305.7701-1 ee ° 29 53 Fed. Reg. 52829 (Dec. 29,1988) ....................... 25

26 C.F_R. 305.7701-1 (a) en ett a ant ee te eae 23 55 Fed. Reg. 49004 (Nov. 23, 1990) 0... 23

28 CFR. 663 23 Department of Justice Law Enforcement Assist-

29 C.F.R.973 oe se 93 ance Administration, Determination of Eligibil-

29C FR. 14703 ity of Alaska Native Villages, 45 Fed. sage 46581

oF « —e 23

31 C.F.R.51.2(j) - > ow 5 oe —

31 CFR. 52.2(h) 23 Rev. Pro. 83-87 SE Se et 7 22

32 C.F R.2783 23 ON ee a 22

34C.F.R.803. 23 LEGISLATIVE MATERIALS

34 C.F.R. 221.71 23 116 Cong. Rec. 24217, 24220-24227, 24234-24235,

36C.F.R.12073 23 24378-24381 (daily ed. July 14-15, 1976) 17

38 C.F.R. 43.3 23 American Indian Policy Review Commission, Spe-

40 C.F.R. 313 | 24 cial Joint Task Force Report on Alaskan Native

43 C.F.R.43000-5 . 24 Iesves (1976) 9

44 C.F.R. 205.251 (b) 23 Federal Field Committee for Development Plan-

45 C.F.R.743 sone 24 ning in Alaska, Alaska Natives and the Land

45 C.F.R.92.3. a 24 SRE eS SEE nae passim

45 C.F.R. 1061.50-9(f) 24 Hearings Before the Subcomm. of the Senate

45 C.F.R. 1061.51-3(i) 23 Comm. on Interior and Insular Affairs on S. 2087

45 C.F.R. 1157.3 24 and S.J. Res. 162, 80th Cong., 2d Sess. (1948). 25

45 C.F. R. 11743 - 24 S. Rep. No. 405, 92d Cong., Ist Sess. (1971)... ss WO

45C.F.R.11833 24 Russian Administration of Alaska and the Status

45 C.F.R. 1207.1-2 24 of the Alaskan Natives, Sen. Doe. No. 152, 81st

45 C.F.R. 1208.1-2 24 Cong., 2d Seas. (1950) " 9

ry eh : 24 H.R. Rep. No. 523, 92d Cong., Ist Sess, (1971). 16

“eCPe eas ~ TREATISES AND LEGAL PERIODICALS

49 C.F.R. 183 24 D. Case, Alaska Natives and American Laws

50 C.F.R.173 24 (1984) : 10, 28

50C FR. 182 a4 F. Cohen, Handbook of Federal ‘Indian Lew

50 CFR. 215.2 24 (1982) passim

50 CFR. 2163 24 L. Miller, Canght in a Crossfire: Conflict in the

47 Fed. Reg. 53133 (Nov. 24, 1982) 25 Courts, Alaska Tribes in the Balance, 1989 Har-

48 Fed. Rey. 21278 (May 12, 1983) 25 vard Indian Law Symposium (by the President

48 Fed. Reg. 30195 (June 20, 1983) 25 and Fellows of Harvard College) 4

48 Fed. Reg. 5682 (Dec. 23, 1982) 25 Miller, The Alaska Treaty (1981) ~

viii

TABLE OF AUTHORITIES—Continued

F. Prucha, The Great Father (1984)

E. Smith and M. Kancewick, The Tribal Status of

Alaska Natives, 61 Colo. L. Rev. 455 (1990) .

Smithsonian Institution, Handbook of North

American Indians, Vol. 5 (Arctic), Vol. 6 (Sub-

Arctic)

ANTHROPOLOGICAL MATERIALS

D.H. Anderson and W.C. Eells, Alaska Natives: A

Survey of Their Sociological and Educational

Status (1935) a

E.S. Burch, Jr., Kotzebue Sound ‘Eekimo, in 5

Handbook of North American Indians 303

(1984) .

E.S. Burch, Jr, The Culture and Natural Heritage

of Northwest Alaska, in V The Inupiaq Nations

of Northwest Alaska (1985) 11,

E.S. Burch, Jr., Traditional Eskimo Societica in

Northwest Alaska, Alaska Native Culture and

History in Senri Ethnological Studies No. 4

(1984)...

Caulfield, Subsistence Land Use in U pper Yukon-

Porcupine Communities, Alaska. Alaska Depart-

ment of Fish and Game Technical Paper No. 16

(1983)

Caulfield, Gwitch’in Athabescen Place Names of

the Upper Yukon-Porcupine Region—-Alasha: A

Preliminary Report, Alaska Department of Fish

& Game, Technical Report 83 (1983) 14,

A. Fienhup-Riordan, Regional Growps on the

Yukon-Kuskokwim Delta (Etudes Inuit 1984)

Osgood, Kutchin Tribal Distribution and Synon-

ymy, 36 Amer. Anthropologist 168 (1934)

D. Ray, Kotzebue Sound Eskimo in 5 Handbook of

North American Indians (1984)

D. Ray, Eskimos of the Bering Strait 1650-1898

(1975)

Slobdin, Kutchin in 6 Handbook of North Ameri-

can Indiana (1984)

Page

4, 22

12, 15

15, 16

11,15

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

ANA Award No. 10NA0171/01 (June 9, 1990).

Aboriginal Fishing Rights in Alaska, 57 LD. 461

EA Re lr aA Ed he eS

Alaska Department of Community & Regional Af-

fairs, Does One Way of Life Have to Die So That

Another Can Live? (1974) nn

Alaska Department of Fish and Game, Division of

Subsistence, Subsistence in Alaska: Arctic, In-

terior, Southcentral, Southwest, and Western

Regional Summaries (Technical Paper No. 150)

(1987)

T. Berger, ‘Village Journey, Report of the ‘Alaska

Native Review Commission (1985) "

Letter dated March 19, 1914 from Rev. P.T. Rowe

to Secretary of Commerce Redfield | .

Letter dated April 17, 1944 from TW. Wheat,

Assistant Director of Lands, Office of indian

Affairs, Field Service, to William Zimmerman,

Assistant Commissioner of Indian Affairs.

Native Village of Kiana Ordinance No. 86-01

Native Village of Selawik Ordinance No. 87-01.

Native Village of Selawik Ordinance No. 88-01

Noatak Ordinance No. 90-01

Noatak Utility Board Rules & Regulations for Util-

ity Services (Aug. 29, 1990) |

Northwest Arctic Borough Code 02.90.010 (1990)

Peratrovich, Source Book on Alaska (1971)

Selawik IRA Council Contract No. E00C 142038174

(Fiseal Year 1989)

Status of Alaskan Natives, 58 L.D. 593, 605

(1932)

United States Department of the Interior, Fish

and Wildlife Service, Subsistence Management

& Use: Implementation of Title Vill of

ANILCA (1985)

Validity of Marriage by Custom Among the Na-

tives or ludiana of Alaska, 54 L.D. 39 (1982)

2 S2S8e

—_ —

12,1

Amici Indian, Aleut and Eskimo villages are 94 of the

federally-recognized tribes identified in the 1971 Alaska

Native Claims Settlement Act, spread across a vast area

one-fifth the size of the contiguous United States and

representing in the aggregate in excess of 80,000 Alaska

Natives." They have inhabited Alaska since time im-

memorial and have a vital interest in preserving both

their recognized tribal status and their full access to fed-

eral court to redress state action violative of their re-

uding Respondent Native Village of Noatak) situated

“organized as bodies politic . . . eligible for borough

funding, grants and contracts” to assist in governmental

activities at the tribal level."

Amicus Tlingit and Haida Indian Tribes of Alaska are

a confederated federally-recognized tribe comprising ap-

proximately 16,000 enrolled members.’ The Tlingit and

' There are 200 Native village tribes in Alaska stretching from

from the southern extremity of the Alaska panhandle to the fur-

thest northern and western regions of the continent. They embrace

an area roughly equal te the combined land mass of California,

Oregon, Washington, Montana, and Arizona similarly containing

in the aggr gate 189 Native American tribes.

* Northwest Arctic Berough Code @2.90.010 | 1990).

*See Act of June 19. 1995, 49 Stat. 388. ac amended by the Act

of August 1 1965, 79 Stat. 598: Thee? ead Neaida Iediane of

Vlewbe Drited States, 10 PF 2d 778, 7H? (Ct. Cl 1968) (com

peneating tribal claims of aboriginal title).

Governments is an intertribal organization working on

behalf of the several Athabascan Gwitch’in Tribes of

Alaska.

Amicus Association on American Indian Affairs, Inc.

is a non-profit membership corporation organized under

the laws of the State of New York for the purpose of

protecting and enhancing the self-government rights and

pee De liye wey ry ee Ny Sy The

Association is the largest Indian-interest in

ot organization

Alaska Native Claims Settlement Act of 1971, 43 U.S.C.

1601 et seg. (“ANCSA”™), are federally recognized tribes,

qualified to bring suit under 28 U.S.C. 1362."

INTRODUCTION

Of all the Nation's aboriginal inhabitants, perhaps

none have succeeded better in holding fact to their rich

and diverse cultures, traditions, lifestyles and languages

than the 200 indian Eskimo and Aleut tribes of Alaska.

*The Ninth Cirewit below held that (1) a federal question ix

presented when it ix alleged that a «tate he« deprived a tribe of a

state benefit on account of race; (2) a trike maw assert euch a

claim in federal court against a <tate for money damagex< notw ith.

standing the Eleventh Amendment: 3) a reeugnired tribe may

predicate such a claim on MS USOC. DP: and (1) the plaintiff

villages are duly recognized Native American tribes that may prop-

erly Pree ute such claom. Thix trief ix offered te assi<t the

Court's deliberations on the fourth ix<ue im the event the first three

issues are resolved in Respomdents’ favor

Protected from the dominant society by extreme isola-

tion,” a harsh environment and relatively recent incor-

poration into the United States, Alaska Native tribes

largely managed to escape the period of Indian wars, the

treaty period. the Indian removal period, the reservation

period, and the allotment period, all aspects of a long-

diseredited federal policy of suppressing (if not eliminat-

ing) tribal self-governance in favor of assimilation.’

The good fortune of Alaska’s tribes is reflected in the

character of their lives today. Thus, throughout village

Alaska, Native people literally live off the land, engaging

in a subsistence way of life that is intimately woven into

the shifting seasons and the migatory patterns of caribou,

whales, seals, walrus, salmon, geese, and countless other

species." Long summer days are spent curing, smoking,

salting or drying subsistence foods, gathering berries,

cutting wood and making preparation for the nine-month

long winter. Through these activities the values of the

tribal community are passed on from generation to

generation.’

5 Most Alaska Native villages are overwhelmingly inhabited by

Indians, Eskimos or Aleuts. According to the 1980 decennial census

of the U.S. Bureau of Census, three-quarters of the population of

each counted village is over 75°% Native, and over 90° of the

villages are in excess of 50°7 Native. In 107 villages, over 90°;

of the population is Native.

29 (1958), as amended; sce also Treaty of Cession (March 39,

1867), United States-Russia, 15 Stat. 539, TS. No 201; Distric:

Organie Act of 1884, 23 Stat. 24 (1884); Territorial Organic Act

of 1912, «. “87, 37 Stat. 512 (1915).

7 See generally F. Prucha, The Great Father (1981); F. Cohen,

Handbook of Federal Indian Law 47-206 (1982) (discussing the

sequential periods of federal Indian policy).

“See conerally T. Berger, Village Journey, Report of the Alaska

Native Peview Commission, 18-72 (1985).

* See. og... Alaska Department of Fish and Game, Division of

Subsistence, Sihes ‘afeonee in Alaska, Arctir, Inte rior, Southee viral,

Southwest. and Western Regional Summaries at 67, 123, 172, 226

No other aboriginal people in America have succeeded

so well in retaining their hunting, fishing and gathering

societies into the eve of the Twenty-First century,” and

in maintaining thriving cultures, one foot in each world.

founded on traditional practices and values adapted ‘o

modern needs and circumstances. Against this back-

ground it is remarkable that challenges persist " against

past long-standing recognitior of the inherent tribal status

of Alaska Native villages. The relatively protected his-

tory of Alaska’s Indian, Eskimo and Aleut villages, and

their escape from the Nation’s removal and reservation

policies, surely by all logic cannot and should not leave

them with fewer attributes of “domestic dependent na-

tions” as quasi-sovereign tribes than their more accultu-

rated brethren in the 48 contiguous states. Amici dem-

onstrate below that the Ninth Circuit was clearly correct

in its conclusion that the Native villages of Alaska,

whether organized traditionally or organized under Sec-

(Technical Paper No. 150) (1987); United States Department of

the Interior, Fish and Wildlife Service, Subsistence Management

& Use; Implementation of Title VIII of ANILCA at I1-2.5 (1985)

(hereinafter “Subsistence Use”); Alaska Department of Com-

munity & Regional Affairs, Does One Way of Life Have to Die

Se That Another Can Live? (1974) (copy lodged with the Clerk

of the Court).

“In many villages today the Native language remains pre-

dominant. These languages include three broad language families

consisting of eleven different Athabascan Indian languages (in the

interior of Alaska); Eyak, Tlingit and Haida (along the south-

east coast); and several Inupiaq, Yupik and Aleut dialects (in

western and northern Alaska). E. Smith and M. Kancewick The

Tribal Status of Alaska Natives, 61 Colo. L. Rev. 455, 485 (1990)

(“Smith and Kancewick”). The Athabascan languages in Alaska

are also spoken among the Navajo and Apache of the contiguous

48 states,

'' For a general discussion of recent litigation involving the

powers and immunities of Alaska Native tribes, «ee L. Miller,

Caught in a Crossfire: Conflict in the Courts, Alaska Tribes in

the Balance, 1°29 Harvard Indian Law Symposium 135-151 (by the

President and Fellows of Harvard College).

tion 16 of the Indian Reorganization Act (25 U.S.C.

476), are indeed sovereign tribes on an equal footing with

other Native American tribes in the United States and

are thus fully empowered to bring suit against the State

of Alaska under 28 U.S.C. 1362 to vindicate their fed-

erally-protected rights.

SUMMARY OF ARGUMENT

Recognition of a Native American group as a tribe is

within the exclusive province of the Federal Government

acting through Congress or the Executive Branch, whose

affirmative judgment in such matters represents a politi-

cal question not reviewable by the courts.

Consistent with this Court’s acknowledgment in Tee

Hit Ton Indians v. United States, 348 U.S. 272 (1955),

Congress has long treated Alaska Natives as disinct Na-

tive communities comprising recognized tribes. This con-

gressional recognition is consistent with the extant an-

thropological and ethnographic literature regarding the

political structures of Alaska Native communities, in-

cluding special congressionally mandated studies.

In the Alaska Native Claims Settlement Act of 1971

Congress necessarily recognized Alaska Native villages

as distinctly Native communities comprising tribes, and

has since repeated that recognition in a broad range of

other legislation. To the same effect have been the con-

sistent and uninterrupted actions of virtually every de-

partment of the Federal Government, including the De-

partment of the Interior.

The recognized status of Alaska Native village tribes

is further reflected in the tremendously vital and rich

functions performed by Indian, Eskimo, and Aleut tribes

today. By administering programs and providing for the

health, safety and public welfare of their members, the

tribes continue to exercise the prerogatives of self-gov-

erning “domestic dependent nations” which have long

been recognized by the Federal Government.

See

ARGUMENT

THE ALASKA NATIVE VILLAGES IDENTIFIED IN

THE ALASKA NATIVE CLAIMS SETTLEMENT ACT

OF 1971 ARE RECOGNIZED TRIBES QUALIFIED TO

BRING SUIT UNDER 28 U.S.C, 1362.

A. Congressional and Executive Branch Determinations

Recognizing the Tribal Status of Native American

Groups are Primarily “Political Questions” which are

Not Reviewable in the Courts.

“Indian tribes consistently have been recognized .. .

as ‘distinct independent, political communities’ qualified

to exercise powers of self-government, not by virtue of

any delegation of powers, but rather by reason of their

original tribal sovereignty.” F. Cohen, Handbook of Fed-

eral Indian Law 232 (1982 Ed.) (“Cohen”) quoting

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).

See also United States v. Wheeler, 435 U.S. 313, 322-23

(1978). That original sovereignty inheres in a “tribe”

“a body of Indians of the same or similar race, united in a

community under one leadership or government, and in-

habititing a particular though sometimes ill-defined ter-

ritory ....” Montoya v. United States, 180 U.S. 261,

266 (1901). Determining which Native American com-

munities constitute “tribes” is largely a “political” ques-

tion of “recognizing” a community to be a tribe, a ques-

tion within the exclusive province of Congress. U.S. rv.

Holliday, 70 U.S. (8 Wall.) 407, 419 (1865),

“Recognition” of a tribe often is effected by Congress

in the context of a government-to-government agreement

with the tribe, embodied in a treaty or a statute. Such

recognition, however, need not be expressly stated and

typically is not. Cohen, supra at 3-4. Rather, by the

very fact of ‘treating’ or legislating with respect to a

tribal entity, Congress is deemed to have recognized the

sovereign status of that tribe. That is, since the relation-

ship between tribes and the Federal Government is a

political one, congressional action with respect to a dia-

tinctly Native American community constitutes confirma-

tion of the community's political quasi-sovereign status.'*

On some occasions Congress is more explicit, as when

it specifically defines an Indian entity to be a tribe in a

statute. Similarly, Congress has at times delegated part

of its power to recognize particular groups as “tribes”

to the Secretary of the Interior, as it has in Section 16

of the Indian Reorganization Act, 25 U.S.C, 476, and in

25 U.S.C. 1, 2 and 9." In other instances, congressional

action is less explicit, though just as direct, as when this

Court concluded that the Pueblos—“distinctly Indian com-

munities”—qualified as recognized tribes in major part

by virtue of their dependency and receipt of federal In-

dian services. United States v. Sandoval, 231 U.S. 28,

39-40, 46, 47 (1913). These “political” judgments are

final and binding, Sandoval, supra at 46; Holliday, su-

pra at 419; Perrin v. United States, 232 U.S. 478 (1914),

the only limitation on congressional authority being that

Congress may not arbitrarily take a group of non-Indians

and deem them to be a politically sovereign “tribe.” San-

doval, supra at 46.

2 As noted in Respondent Noatak’s brief, Resp. Br. at —, Con-

gress's power in this area is broad, and it is not limited to so-

called “historical” or “ethnological” tribes. Cohen supra at 5-6.

Thus, in the course of recognizing the tribal status of some 500

politically distinct modern-day tribes in the United States, Congress

has frequently givided historic tribes, consolidated (or confed-

erated) historic tribes, and even done both simultaneously. Clearly

Congress has never considered itself limited to recognizing as tribes

only the modern-day successors to historic tribes (although, as

discussed below, in Alaska Congress has, in fact, typically done so).

8 James v. gS. Department of Health and Human Services, 824

F.2d 1132 (DPC. Cir, 1987); see also 25 C.P_R. pts. 31, 32 and 83

(1990); Cohen, swpra at 13-16. In the absence of congressional or

secretarial recognition, unrecognized tribal status may in the al-

ternative be judicially proven and, with it, the inherent sovereign

authority which flows from that status. United States v. Washing-

fom, 611 F.2d 1968, 1872-78 (Oth Cir. 1981), cert. denied, 454

U.S. 1148 (1982), Mashpee Tribe v. New Seabury Corp., 592 F.2d

575, 585-87 (ist Cir.) cert. denied, 444 U.S. 866 (1979).

B. In Enacting the Alaska Native Claims Settlement Act

of 1971 Congress Was Well Aware and are Today Dis-

tinctly Native Communities Comprising Tribes.

Congress has long been well aware of the tribal nature

of Alaska Native societies.'' For instance, one year prior

to Congress’s passage of amendments to the Indian Re-

organization Act (IRA) to address unforseen difficulties

in the Act’s application in Alaska," the U.S. Office of

Education commissioned a special study on Alaska Inu-

piaq and Yupik Eskimo and Aleut villages. H.D. Ander-

son and W.C. Eells, Alaska Natives: A Survey of Their

Sociological and Educational Status (1935). Anderson

and Eells found that the permanent village was a politi-

cal, self-governing unit that had long been the characteris-

tic community for Alaska Natives. /d. at 31-37, 48-50.

They disavowed the erroneous, uninformed view that tra-

ditional self-governance did not exist, stating that such a

view “fail|s| utterly to take into account those naturally

developed means of social control which serve the pur-

poses of government and in fact are government.” /d.

at 48. After exhaustively describing Eskimo and Aleut

forms of governance,"® Anderson and Eells concluded that

'* Congressional recognition of the tribal status of Alaska Native

communities began with the original 1867 Russian American Treaty

of Cession. See Article Ill of the Treaty of March 30, 1867, 15

Stat. 539, making express provision for the “native tribes” wn-

civilized tribes [in the ceded territory of Alaska) will be subject

to such laws and regulations as the United States may, from time

to time, adopt in regard to aboriginal tribes of that country”).

See also Secretary Seward’s Memorandum to President Johnson

and Russian Minister Stoeck!'s dispatch, both discussing Article

III, in Miller, The Alaska Treaty at 71, 81 (1981).

See Act of May 1, 1936, 49 Stat. 1250, codified in pert af 25

U.S.C. 473a.

See generally Anderson and Eells at 18-50. (Ch. Vill, Reclw

Sectal Organization and Government). 144-150 (Ch. XX. Serial

(irganization and Government). Accord A. Pien! up-Riordan, Re-

gional Growpa on the Yukon-Kuakokwin Delta (Etudes Inuit TOR!

(describing the regional confederations among the Yupil villages

of the lower Yukon-Kuskokwim Rivers).

“all the necessary indications of a ‘tribe’ existed.” Jd.

at 146."

Indeed, to conclude the single villages were not self-

lived in chaos, in a state of anarchy, with no internal

forms of control for managing village life and interact-

ing with others."" As Congress well understood at the

time of ANCSA’s consideration, the facts are otherwise.

' With this report in hand Congress in 1936 amended the IRA

i had

unintentionally tmpeded implementation of the Act of Alaska.

Chief among these was the requirement that Indians reside on a

reservation, a requirement eliminated in the 1936 IRA Amendment.

See generally Respondent Noatak Br. at —.

‘8 This Court has previously acknowledged the tribal status of

Alaska Native communities. Tee-Hit-Ton Indians v. United States,

348 U.S. 272 (1955). See, e.g.. 348 U.S. at 273, 275, 279, 282, 285,

286 (noting the Tee-Hit-Ton to be “a clan of the Tlingit tribe, an

identifiable group of American Indians . . . residing in Alaska”

and a “tribe” with “tribal” attributes including sovereign land

claims), 287-288 (observing “that land claims among the Tlingits,

and likewise of their smaller group, the Tee-Hit-Tons, was [sic]

wholly tribal. It was more a claim of sovereignty than of owner-

ship”, and concluding “that the [Tribe’s! use of its lands was

like the use of the nomadic Indians of the [Lower 48) states

Indians.”

As the American Indian Policy Review Commission noted, “Quite

clearly, Alaska Natives were governing themselves for thousands

of years prior to their contact with the Russian-American Company

or the U.S. Government.” American Indian Policy Review Com-

mission, Special Joint Task Force Report on Alaskan Native Isswes

21 (1976). See also, Russian Administration of Alasha and the

Status of the Alasken Natives, Sen. Doc. No. 152, 8st Cong. 2d

Sess. (1950). In a comprehensive and more recent treatise spe

cifically directed to the legal status of Alaska Natives, a review of

much of the extant anthropological tesature led to the same con-

clusion:

AN Alaska Native traditional secicties had political systems

(structures and processes! which governed their members and

covtroll.d indicedual behavior. These arrangements, like those

in many other Native American societies, operated successfully

Congress obtained a wealth of information during its

deliberations over_ Alaska’s aboriginal land claims when

it commissioned the Federal Field Committee for Devel-

opment Planning in Alaska to study all aspects of Alaske

Native life. This massive study of Alaska Native history,

society, resource use, land use and economic status formed

he factual basis for the settlement of Alaska Native land

claims.'® Entitled Alaska Natives and the Land, the re-

port divided the state for descriptive purposes into sev-

eral regions, corresponding to ethnological linguistic group-

ings of Native people. It then described for each region of

the state and in varying degrees of detail the available

social and anthropologic data regarding the political or-

ganization of Native villages.” \

in the absence of specialized political institutions or centralized

state governments. Ideological beliefs and customary laws de-

fining interpersonal relationships and spiritual relationships to

the environment and wildlife created a tacit, yet powerful,

sanction system which contributed to the maintenance of social

order. Mechanisms for identifying a society's territory and

political autonomy and for regulating external relationships

with other societies existed in all cultural groups.

D. Case. Alaska Natives and American Laws 353 (1981) (em-

phasis added) (hereafter “Case”). See also Case at 361-62; Cohen

at 750-752. Similar observations are contained throughout volumes

5 and 6 of the Smithsonian Institution’s multi-volume treatise on

North American Indians. This massive and authoritative ethnog-

raphy of Native Americans describes at length the tribes and

political self-governing structures of Alaska’s Native people. Smith-

sonian Institution, Handbook of North American Indians, Vol. 5

(Arctic), Vol. 6 (SubArctic).

19 Federal Field Commitee for Development Planning in Alaska,

Alaska Natives and the Land (1968). This report was prepared at

the request of Senator Henry M. Jackson, Chairman of the Senate

Committee on Interior and Insular Affairs, and is recognized as a

principal factual basis for much of ANCSA. The Report is a formal

part of ANCSA’s legislative history, S. Rep. No. 405, 92d Cong.,

Ist Sess. 73-74 (1971).

2 Respondent Noatak is an Inupiaq Eskimo Tribe situated north

of Kotzebue. Respondent Circle is a Gwitch’in Athabascan Indian

tribe situated in Northeastern Alaska south of the Brooks Range

The Field Commission confirmed for Congress the tri-

bal nature of Native societies. For example, with ref-

erence to the Bering Strait Eskimos (the people living

just to the south of the Noatak and other Northwest

Inupiaq Eskimos), the study found:

[as to] the fancy that Eskimo people had no political

or territorial concepts, boundaries to property or

hunting territories{:] Quite the contrary was ac-

tually true. ... The Bering Strait Eskimo did not

live in anarchy; he lived in a well-ordered society in

which a chief and often a council played an impor-

tant role. The influence of their government ex-

tended over a definitely bounded territory within

which the inhabitants were directed by a system of

rules and laws.

Alaska Natives and the Land at 144, 146.”

along the Yukon River. Although amici therefore focus discussion

on these regions, the tribal characteristics of their villages are

similarly documented throughout the other Eskimo, Aleau and

Indian tribes of Alaska.

21 Alaska Natives and the Land relies heavily on work by

Dorothy Jean Ray, noted authority on the Bering Strait Eskimos.

Alaska Natives and the Land at 147-152. More recent work by Ray

explains in considerable detail the tribal structure of that Eskimo

people:

A tribe consisted of people with a common language and culture

living within well-defined boundaries recognized by themselves

and contiguous tribes. A tribal territory usually included a large

river and all the land drained by its tributaries. .. .

Ray, Kotzebue Sound Eskimo in 5 Handbook of North American

Indians 285, 286 (1984). Accord, Ray, Eskimos of the Bering

Strait 1650-1898, 105-106 (1975). The focal point of tne Eskimo

village was the kashim or “men’s house” which served as the po-

litical and social center for the community. Eskimos of the Bering

Strait, supra at 106-107.

Ernest S. Burch, Jr., the principal, modern commentator on the

anthropology of Northwest Alaska Eskimos has found that the

same conclusions apply to the Eskimos of that region, including the

Noatak people. See Burch, Kotzebue Sound Eskimo, in 5 Handbook

of North American Indians 303 (1984); Burch, The Cultural and

Natural Heritage of Northwest Alaska, in V The Inupiaq Nations

witch’in Indians (including those living in the

Pandy what is now Circle) were similarly —

by the Field Commission as “tribes.” Alaska Natives :

the Land at 205. The Commission noted that while t -

peoples were perhaps more nomadic than the coasta

Eskimos, they nonetheless inhabited villages “on the main

rivers and streams .. . [which] acted as base =

centers and were complementary to many family an

group fish campsites along the rivers and interior hunt-

ing and trapping camps.” Id. at 207. Again, other

anthropological work has confirmed this conclusion.

As the Field Commission observed, village “tribal”

structures also historically existed in the other regions

of Alaska.* Those tribes, and their accompanying social

of Northwest Alaska (1985) (unpublished manuscript) (copy lodged

with the Clerk of the Court). As Burch notes: |

[Ray] has depicted the early contact Eskimo as having been

organized in terms of relatively cohesive political units which

she called “tribes” each with a general adjustment to its sur-

roundings. My own research has confirmed Ray’s findings, and

has permitted me to extend them analytically, temporally, and

geographically. . |

E.S. Burch, Jr., Traditional Eskimo Societies in Northwest A laska,

Alaska Native Culture and History, in Senri Ethnological Studies

No. 4 at 253 (1984).

22 See, e.g., Caulfield, Subsistence Land Use in Upper tte

Porcupine Communities, Alaska, Alaska Department of Fish -

Game Technical Paper No. 16 at 92, 111-14, 127-31, 145-49 (198: )

(“Caulfield”) ; Slobdin, Kutchin in 6 Handbook of North American

Indians 514-15, 520-24 (1984). A study commissioned by the

Alaska Department of Education agrees. See Peratrovich, Source

Book on Alaska at 27 (1971) (“Each group is headed by some man

who, by common consent, is recognized as chief. wee gee ye

affairs are settled by a several council in which the chief and the

older men of the group rule”’’.

23 B.g., Alaska Natives and the Land at 47 (villages generally ),

129-187 (Arctic Slope Eskimos), 178-187 (Southwest Coastal Es-

kimos), 195-201 (Koyukuk-Lower Yukon Eskimos and Indians),

299.999 (Bristol Bay Eskimos), 236-245 (Aleuts), 264-269 (Chu-

gach and Eyak Indians). The Tlingit and Haida Indians were also

and governmental structures, survived and adapted to

contact with Western culture. As the leading modern

Indian law treatise concludes:

Customary society underwent many alterations after

contact, first with Russians and later with Americans,

although virtually every Native village or community

retained some kind of traditional self-governing

structure. Most established councils for community

decision-making and dispute adjustment. The coun-

cils employed procedures and adopted rules reflecting

their origins as hybrids of the influence of the non-

Natives who urged their establishment and Native

tradition which persisted in importance.

Cohen at 750-751 (emphasis added) (footnotes omitted).

See generally Alaska Natives and the Land, at 41, 87,

130-31, 187, 197, 207, 212, 220, 224-25, 238-39 (describ-

ing forces affecting traditional communities).

The modern-day Indian, Aleut and Eskimo villages re-

tain direct links with the Natives’ ancestral sites. The

Gwitch’in Indians, for example, were divided into eight

tribes, each with well-defined territories, that “recog-

nized a relationship which united them into what...

might be called correctly enough a nation.” Osgood,

Kutchin Tribal Distribution and Synonymy, 36 Amer.

Anthropologist 168, 169 (1934). For those Gwitch’in

tribes located in Alaska,** each tribe lived in a particular

area within the Gwitch’in Nation, an area that corre-

sponds precisely to a modern-day village. For example,

the present residents of Circle are descendants of the

Kutchakutchin who lived along the Yukon River, as well

organized in villages, governed by clans, Tlingit and Haida Indians

v. United States, 177 F. Supp. 452, 455-456 (Ct. Cl. 1959).

** These tribes include the Kutchakutchin, the Tranjikkutchin, the

Natsitkutchin, and the Birch Creek Kutchin. Alaska Natives and

the Land at 206; 6 Handbook of North American Indians at 514-15.

as those living in Charley’s Village;* Circle itself is

located near an historic village site.”

Like the Gwitch’in and other aboriginal tribes, the

tribes of the Bering Strait were keenly aware of their

own territories and took special care to guard their ter-

ritorial integrity:

As between sovereign nations today, permission was

needed to travel between tribes, and names were the

25 The residents of Charley’s Village moved to Circle in 1914

after Charley’s Village was destroyed by ice. Alaska Natives and the

Land at 206 (noting that some Circle residents were Hankutchin).

Outside pressure on these villages, though late, was severe. Thus

in discussing the problems caused by the establishment of a trading

post at a Native village site at Fort Yukon, the Bishop of Alaska

asked:

Have the Indians no rights? I mean exclusive rights in the

villages of immemorial times? ... ‘This is an insStance—a fla-

grant one—but one that is typical of what has gone on at Eagie

and Circle and Rampart and Tanana.

Letter dated March 9, 1914 from Rev. P.T. Rowe to Secretary of

Commerce Redfield; (emphasis added) (copy lodged with the Clerk

of the Court). Circle is also the burial place of a famous Gwitch’in

chief. See Caulfield Gwitch’in Athabascan Place Names of th

Upper Yukon-Porcupine Region—Alaska: A Preliminary Report,

Alaska Department of Fish & Game, Technical Report No. 83 at 8

(1983).

It is important to note in this context that the Federal Govern-

ment established a one-acre reserve at Circle in 1910 (Executive

Order No. 1194 (April 26, 1910) ), and later considered establishing

a 75-square mile reserve. Attachment to letter dated April 17, 1944

from T.W. Wheat, Assistant Director of Lands, Office of Indian

Affairs, Field Service, to William Zimmerman, Assistant Commis-

sioner of Indian Affairs (copy lodged with the Clerk of the

Court).

26 Similarly, amicus Chalkyitsik residents are Tranjikkutchin who

lived in settlements along the Black River; the present village site

in a seasonal fish camp that became a permanent village when a

school was built. Caulfield at 127-31. A similar history applies to

the present villages of amicus Venetie and Arctic Village, home to

the Natsitkutchin; to amicus Fort Yukon, home of the Kutcha-

kutchin; and to amicus Birch Creek, home to the Birch Creek

important passports that proved relationships and

served as entry to another territory.

Eskimos of the Bering Strait, supra at 108 Anthro-

pologists identify twelve tribes in Northwest Alaska ex-

tant between 1800 and 1825, with a remarkable identity

between these historical nations and the present villages.

Notable among them, for purposes of this case, is the

a= te an oe or lower Noatak, from which it

relia inferred t i i

Pre Bee hat the Native Village of

The Field Commission documents similar and exten-

Sive correspondences between historical tribal locations

and present-day Native villages throughout Alaska.” In

Kutchin. Alaska Natives and the Land at 206:

111-14, 145-49, 170-73. ; Caulfield at 92,

*7 These boundaries actually defined the tribe and its territory:

The largest village lent its name to the tribe. Thus Kauwera-

miut or “people of Kauwerak,” meant essentially “the people

who lived in territory presided over by the people of Kau-

werak.”

Eskimos of the Bering Strait, supra at 106. Burch notes that the

entities variously referred to by Ray as “tribes” might more prop-

erly be called “nations.” In Inupiaq the term is nunatqatigiit:

Nation is an appropriate word to use because nunatqatigiit

were, in fact, organizations of a type that were analogous to

countries, or nations, in the modern world. They were viewed

in essentially those terms by the peoples who comprise their

citizenry.

The Inupiaq Nations of Northwest Alaska, supra at 1.

: 28 See 5 Handbook of North American Indians at 304 Fig. 1

Societal territories, about 1800 to 1825”; Inupiaq Nations of North-

west Alaska, supra at 11, Fig. 3 “Political Map of Northwest Alaska

ca 1800-1825.” These maps specifically identify the territory of

Napaaqtugmiut with that area occupi

; upied by the pres r

of Noatak. P y present village

** The Field Conimission report contains maps of historical and

contemporary tribal locations for each ethnographic region of the

state. See, e.g., Alaska Natives and the Land at 136-137 (Arctic

Slope); 156-157 (Bering Strait Region including the Northwest

Arctic); 210-211 (Upper Yukon-Porcupine Region) :

(Southeast Alaska). ° egion); 278-279

t cases, the vill are located at or near tracitional

aan in others, a tribe changed location due to natural

disasters or the establishment of schools or trading posts,

though it nonetheless remained within the territory it

traditionally claimed for resource gathering.” The in-

evitable conclusion that emerges from this considerable

body of literature is that the modern-day Native villages

like Noatak and Circle are the successors to the “tribes

or “nations” which occupied these same areas since time

immemorial. These are the facts and conclusions upon

which Congress relied in crafting the 1971 settlement of

Alaska Native tribal land claims.

Given the conclusive data presented by the Field Com-

mission, and confirmed by other work, it is clear Con-

gress has been well aware that in dealing with the vil-

lages, it has been treating with tribes which in all rele-

vant respects are identical to those it has treated with

elsewhere in the United States. Any contrary determi-

nation would be at odds with the overwhelming evidence

from existing historical, ethnological and anthropological

literature—and more importantly, with the very infor-

mation provided to Congress in crafting ANCSA.

Congress’s manner of treating with the Native Vil-

lages was identical to the method it traditionally em-

ployed when dealing with other tribal land claims;

The consistent policy of the United States in its

dealings with the Indian Tribes has been to grant

them title to a portion of the lands which they oc-

cupied, to extinguish the aboriginal title to the re-

mainder of the-land by placing such land in the pub-

lie domain, and to pay the fair value of the title ex-

tinguished.

H.R. Rep. No. 523, 92d Cong., Ist Sess. 4 (1971). Con-

gress thus granted the Natives title to some land, extin-

i instance, like

% See, e.g., Caulfied at 127-31 (Chalkytsik). For ins ’

many other maritime villages devastated by Alaska’s 1964 earth-

quake, amicus Native Village of Chenega established a new village

nearby.

guished aboriginal title to the remainder, and paid the

Natives some one billion dollars for that extinguished

title." Congress, in short, clearly understood and treated

with the villages as tribes.”

Congress’ identification of the eligible villages in

ANCSA therefore entails two basic conclusions. First,

since-only tribes may hold (and therefore cede) aborigi-

nal title, Congress necessarily determined those villages

to be the relevant tribal entities.** Second, Congress

8! See generally 43 U.S.C. 1601 et seq. Congress did make one

departure from its usual practice: it provided that the cash and

lands would be managed largely by village corporations established

by the tribes themselves. The use of corporations as stewards of

the land settlement is not dissimilar from the special federal cor-

porations authorized to be established under Section 17 of the 1934

Indian Reorganization Act, 25 U.S.C. 477. In both instances Con-

gress viewed the corporate form as holding considerable promise

for guaranteeing the future economic self-sufficiency of Alaska

Natives and American Indians, and in both instances special

provisions were made to protect the tribal estate. Compare 43

U.S.C. 1606(h) (generally prohibiting alienation of Native stock

and providing that stock inherited by non-Natives “shall not carry

voting rights”) ; 1620(d) (exempting undeveloped settlement lands

from taxation for twenty years); and 1636(d) ( exempting forever

all undeveloped settlement lands from third party claims of adverse

possession, from real property taxes, and from judgment execu-

tion); with 25 U.S.C. 476 (confirming power of IRA-organized

tribe “to prevent the sale, disposition, lease or encumbrance of

tribal lands, interests in lands, or other tribal assets without the

consent of the tribe”).

32 In its deliberations over ANCSA Congress was well aware of

the Federal Government’s trust responsibility to Alaska “tribes,”

a trust underlying the provision of hundreds of millions of dollars

in Native health, education and social service programs. Ultimately

Congress rebuffed suggestions the tribal trust should be terminated

in the settlement as being inconsistent with the curre:c era of

Indian self-determination. See, e.g., 116 Cong. Rec. 24217, 24220-

24227, 24234-24235, 24378-24381 (debates between Senators Gravel,

Harris, Hollings, Stevens, Kennedy and Jackson on S. 1830) (daily

ed. July 14-15, 1970).

*8 Contrary to Petitioner’s suggestion, Pet. Br. at 35, Congress

expressly limited the land claims settlement to tribal villages “not

found as a matter of law that those villages were “dis-

tinctly [Native] communities,” Sandoval, 231 U.S. at

46.** As such, like the recognized tribes of the “Lower

48” states, there simply is no occasion for requiring each

Native village in Alaska to prove its distinctly Native

character.” Congress made that judgment in ANCSA, a

factual and political determination that is far from arbi-

trary and hence binding on this Court.

C. The Tribal Status of Alaska Native Villages Is Demon-

strated by the Federal Government’s Repeated Recog-

nition of that Status and by the Extensive Govern-

mental Activities The Villages Now Undertake.

1. Since the Alaska Native Claims Settlement Act of

1971 Congress and the Executive Branch have Re-

peatedly Recognized the Tribal Status of the Alaska

Native Villages Identified in ANCSA.

The tribal status of the ANCSA villages has been rec-

ognized in virtually all modern Indian legislation en-

acted since 1971. For instance, in the 1978 Indian Child

Welfare Act (“ICWA”), 25 U.S.C. 1901 et seqg., Congress

recognized the tribal status and governmental authority

of “any Alaska Native village [identified in ANCSA},

of a modern and urban character, [where] a majority of the resi-

dents are Natives.” 43 U.S.C. 1610(b) (2) (B), (b) (3) (B). South-

east tribes whose claims had previously been adjudicated by the

U.S. Court of Claims also participated in the settlement, albeit on

a more limited basis than tribes elsewhere, 43 U.S.C. 1615(a), (b)

and (c).

34 See also Alvarado v. State, 486 P.2d 891, 899-900 (Alaska

1971) (remarking on the “stark contrast” and “enormous gulf”

existing between Native villages and other Alaskan communities).

35 The Ninth Circuit’s suggestion otherwise in Native Village of

Venetie v. State of Alaska, No. 88-3929, Slip Op. at 12600-604,

F.2d (9th Cir. Nov. 6, 1990) is wrong. Clearly this Court has

never made any distinction between recognized tribes which are

modern-day successors to so-called “historic tribes,” and those which

are not. See discussion, supra at ——— n. . Compare Moe v. Con-

federated Salish and Kootenai Tribes, 425 U.S. 463 (1976) (involv-

ing a non-historic tribe) with Merrion v. Jicarilla Apache Tribe,

455 U.S. 130 (1982) (an historic cribe).

25 U.S.C. 1903(8). In doing so Congress speci

confirmed village tribal authority in the be apr yn Md

relations jurisdiction over tribal children, an essential

attribute of the retained sovereignty of Native American

tribes. Fisher v. District Court, 424 U.S. 382 (1976):

United States v. Quiver, 241 U.S. 602 (1916).

More recently, in the 1986 Superfund Amendments and

Reauthorization Act, 42 U.S.C. 9601(36), Congress iden-

tified Alaska Native villages as tribes when it expanded

the Act’s scope to authorize the Environmental Protec-

tion Agency to treat tribes as states for various environ-

mental purposes (such as the clean up of hazardous waste

sites and responding to hazardous spills).** Again, only

this month President Bush signed into law the 1990 ‘Clean

Air Act Amendments, putting all tribes, including Alaska

Native villages, exercising ‘“‘substantial governmental du-

ties and powers” over any “area[s] within the tribe’s

jurisdiction” on an equal footing with states for most pur-

poses. *"

Whether the subject has involved such specific essen-

tial governmental functions as domestic relations juris-

diction and environmental protection programs, or simply

general governmental activities such as the training

strengthening and improvement of tribal governments

and their employees,** Congress has time and again delib-

36 To the extent some aspects of the Act’s tribal provisi

be limited to lands owned by or under the jurisdiction a+ on

clearly many Alaska tribes would qualify. See e.g. 43 U.S.C 1615

( d) (1) (lands owned by Chilkat Indian Village) ; Alaska v. Native

Village of Venetie, 856 F.2d 1384, 1390-91 (9th Cir. 1988) (holding

tribal civil jurisdiction over non-reservation lands turns on nt

such lands qualify as a “dependent Indian co orale

U.S.C. 1151). mmunity” under 18

37 See Secs. 107(b), (d), Pub. L. 101-549 i

: : . L. -549, amending 42 U.S.C.

7601(d), 7602(r). See also the Solid Waste Disposal Act, 42 U.S.C.

6903 (13) ( A) ( treating Alaska Native villages identically with

other Indian tribes for financial assistance and other purposes).

*S See Intergovernmental Personnel Act of 1971

U.S.C. 4701, 4762(5). , as amended, 42

erately acknowledged the Alaska villages defined and iden-

tified in ANCSA to be “tribes” on an equal footing with

other Indian tribes,*” an overwhelming course of dealing

39 See e.g. 5 U.S.C. 8871(2(C) (relatir. to assignment of federal

personnel to tribal governments under the Intergovernmental Per-

sonnel Act); 13 U.S.C. 181, 184(1) (treating every “Alaska Native

village” as a “local unit of general purpose government” under the

Census Act); 20 U.S.C. 4402(5) (relating to tribal involvement in

the Institute of American Indian and Alaska Native Culture and

Arts Development); 25 U.S.C. 472a(f)(1)(A) (relating to the

authority of a tribal organization to waive the Indian preference

laws applicable to positions within the Bureau of Indian Affairs

and the Indian Health Service); 25 U.S.C. 1452(c) (access to re-

volving loan fund, loan-guaranty and loan insurance programs

established under the Indian Financing Act of 1974); 25 U.S.C.

2011(f) (2) (A) (authority of tribal organization to waive Indian

preference laws applicable to BIA educators under 1978 Indian

Education Act); 29 U.S.C. 1671(c)(1)(A) (tribal participation

in comprehensive training and employment programs established

under the Job Training Partnership Act) ; 42 U.S.C. 5122(6) (ad-

dressing Native villages as local governments in the Disaster Relief

Act) ; 42 U.S.C. 5302(a) (17) (including Alaska Native Villages as

tribes in the Housing and Community Development Act) ; 42 U.S.C.

6707(a) (1), (h)(2)(B) (targeting Alaska Native villages in the

Public Works Employment Act tribal set-aside program) ; 42 U.S.C.

6723(c) (3) (D) (ii) (extending local government emergency sup-

port payments under the Public Works Act to tribes, including any

“Alaska Native village”); Sec. 2(7) of the Native American Grave

Protection and Repatriation Act of 1990, Pub. L. 101-601; Sec.

105(d) (3), Tiitle I, Pub. L. 101-644 (Indian Arts and Crafts Act

of 1990).

See also 23 U.S.C. 101 (deeming Alaska Native villages on the

same footing as Indian reservations for purposes of the Federal-

Aid Highway Act); 29 U.S.C. 750(d) (deeming handicapped Native

Americans residing on ANCSA corporate lands to be eligible bene-

ficiaries of special vocational rehabilitation grant programs ad-

ministered by tribes) ; 42 U.S.C. 2992c(2) (Native American Pro-

gram Act) (equating lands under jurisdiction of Alaska Native

village tribes, including ANCSA corporate lands, with Indian reser-

vations); 42 U.S.C. 5318(n)(2)(A) (equating Alaska Native vil-

lage tribes with reservation-based tribes in the Urban Development

Action Grant Program); Secs. 403(9), 409 of Title IV, Pub. L.

101-630 (Indian Child Protection and Family Violence Prevention

Act) (treating ANCSA corporate lands identically to Indian reser-

cane

21 ‘

which petitioner elects to ignore.’ Those statute

hundreds of millions of dollars annually eerie.

and for the benefit of Alaska Native village tribes, draw

their constitutional authority from Congress’s power un-

der Article I, sec. 8, cl. 3 of the Constitution “to regu-

late Commerce . . . With the Indian Tribes” (emphasis

added ) . Since Congress’s constitutional authority to pro-

vide benefits and to legislate with respect to Native

Americans is based on the political relationship with their

vation lands for pu of fundi i i

perder aint cy nding village tribal child abuse

Each of these statutes deliberately distinguishes and excludes

the village corporations established under ANCSA. In other stat-

utes, however, special concerns have led Congress to make ANCSA

corporations eligible for a particular program. See é.g., Indian

Self-Determination and Education Assistance Act, 25 US.C 450

450b((e) (adding ANCSA corporations to the Act’s provisions

would extend to certain urban areas such an Anchorage where

there may not have existed any recognized tribe, see Cook Inlet

Native Assn. v. Bowen, 810 F.2d 1471, 1475 (9th Cir. 1987)); 15

U.S.C. 637(a)(13) (making the tribal minority contractor ore

visions of the Small Business Act also a i]

ae, vailable to ANCSA cor-

*° Petitioner only cites to the Clean Water Act, 33 U.S.C. 1377

and the Resource Conservation and Recovery Act, 42 U.S.C 6901

statutes which are not inconsistent with this course of dealing. Pet.

Br. at 36 n. 41. Despite the unusually restrictive definition of “In-

dian tribe” in 33 U.S.C. 1377(h) (2) of the Clean Water Act, clearly

Alaska Native villages defined in ANSCA are eligible for the waste

and sewage treatment grant programs specified in subsection (c)

( expressly including “Alaska Native Villages”). Whether an Alaska

tribe can qualify to be treated as a state under one of the alter-

natives in subsection (e) by establishing that it occupies a “reser-

vation” is uncertain, although the disclaimer (addressing tribal

powers, but not tribal status) in subsection (g) secured by the

Alaska congressionai delegation wouli appear to be unnecessary if

the villages had been categorically excluded as a matter of law

Moreover, that aspects of a statutory program may, by congres-

sional directive, not apply to Alaska tribes hardly supports the

proposition that the villages are not really tribes in the first place

As for the Resource Conservation and Recovery Act, the State is

simply wrong: the Act’s definition of tribes clearly includes Alaska

Native villages, 42 U.S.C. 6903 (13) (A).

tribes, e.g., Morton v. Mancari, 417 U.S. 535 (1974), the

fact that the benefits are provided to Alaska Native vil-

lages itself is cogent proof of the Native villages’ tribal

status. Sandoval, 231 U.S. at 23, 39-41, 46-47. See also

Smith and Kancewick at 480-82, 514-15.”

In exercising its delegated responsibility for determin-

ing which recognized Native American tribal entities

may secure the benefit of certain legislation, the Execu-

tive Branch has likewise consistently determined that all

the Native villages listed in ANCSA exercise substantial

tribal governmental functions for such purposes as tax

exemptions, revenue sharing, and law enforcement. Sim-

ilarly, virtually every department of the Federal Govern-

ment views and deals with the Alaska villages identified

in ANCSA as recognized tribal governments.** These de-

41 Petitioner would create a novel new doctrine of federal Indian

law: a “tribe” may be recognized only for certain purposes, and

to be a fully recognized tribe, Congress must somehow do more

than recognize the tribe’s status as such in one or more particular

contexts. Thus, like the elusive partial pregnancy, a Native com-

munity can be partly a tribe and partly not.

There is simply no such doctrine. The issue in this Court has

never been whether a tribe is recognized as such in a particular

context just for . particular purpose. Rather, the issue consistently

has been whether, as a recognized tribe, a tribe possesses a par-

ticular authority or immunity. See, e.g., United States v. Wheeler,

425 US. 313 (1978). Petitioner’s misplaced reliance on certain

“disclaimer” clauses goes to this issue of tribal powers, net the

issue of recognized tribal status. Pet. Br. at 35. By contrast, the

extent of Respondents’ tribal powers, and the degree to which

Congress may have legislated with respect to those powers, are

issues not directly implicated in this case.

42 See respectively, 26 U.S.C. 7701(40) and 26 C.F.R. 305.7701-1;

Rev. Proc. 83-87; and Rev. Proce. 86-17; 31 U.S.C. 6701 (a) (5) (B)

(repealed April 7, 1986, Pub. L. 99-272, Title XIV, Sec. 14001 (a)

(1), 100 Stat. 327); 42 U.S.C. 5603(a) and Department of Justice

Law Enforcement Assistance Administration, Determination of

Eligibility of Alaska Native Villages, 45 Fed. Reg. 46581 (July 10,

1980).

43 See ¢.g., 13 C.F.R. 316.2 and 317.2 (Economic Development

Administration (EDA) local public works programs); 13 C.F.R.

318.2 (EDA community emergency drought relief program); 24

oe ae

oO Fe =

C.F.R. 571.4(k) (Housing and Urban Development (HUD) com-

munity development block grants); 24 C.F.R. 596.3 (HUD enter-

prise zone development program); 26 C.F.R. 305.7701-1(a) (In-

ternal Revenue Service Indian Tribal Government Tax Status Act

program); 31 C.F.R. 51.2(j) (Treasury Department local govern-

ment financial assistance program) ; 31 C.R.R. 52.2(h) (Treasury

Department antirecession local government program); 44 C.F.R.

205.251 (b) (Federal Emergency Management Agency disaster as-

sistance program) ; 45 C.F.R. 1061.51-3(i) (Department of Health

and Human Services (DHHS) crisis intervention program): 45

C.F.R. 1336.10 (Administration for Native Americans programs )

(see also 55 Fed. Reg. 49004 (November 23, 1990) ( special ANA

Alaska initiative established in part to “strengthen village govern-

ment” and generally improve village tribal self-governance).

See also 5 C.F.R. 334.102 (Office of Personnel Management

(OPM) regulations under the Intergovernmental Personnel Act) :

7 C.F.R. 1944.656(g)(2) (Farmers Home Administration); 7%

C.F.R. 3015 App. A (Department of Agriculture (DOA) federal

assistance) ; 7 C.F.R. 3016.3 (DOA uniform administrative require-

ments for grants and cooperative agreements to local governments) :

10 C.F.R. 600.3 and 600.402 (Department of Energy uniform ad-

ministrative requirements for grants to local governments): 13

C.F.R. 143.3 (Smail Business Administration uniform adminis-

trative requirements for grants to local governments); 15 C.F.R.

24.3 (Department of Commerce uniform administrative require-

ments for grants to local governments); 22 C.F.R. 135.3 (State

Department uniform administrative requirements for grants to

local governments) ; 24 C.F.R. 85.3 (HUD uniform administrative

requirements for grants to local governments); 25 C.F.R. 23.2(i)

(Department of Interior (DIO) Indian Child Welfare Act pro-

gram); 25 C.F.R. 26.1(h) (DOI adult employment assistance pro-

gram); 25 C.F.R. 27.1(j) (DOI adult vocational training pro-

gram); 25 C.F.R. 256.2(f) (DOI housing improvement program) ;

28 C.F.R. 66.3 (Department of Justice uniform administrative re-

quirements for grants to local governments); 29 C.F.R. 97.3 (De-

partment of Labor (DOL) uniform administrative requirements

for grants to local governments) ; 29 C.F.R. 1470.3 (Federal Media-

tion and Conciliation Service uniform administrative requirements

for grants to local governments) ; 32 C.F.R. 278.2 ( Department of

Defense uniform administrative requirements for grants to local

governments) ; 34 C.F.R. 80.3 (Department of Education (DOE)

uniform administrative requirements for grants to local govern-

ments) ; 34 C.F.R. 221.71 (DOE school construction program) ; 36

C.F.R. 1207.3 (National Archives uniform administrative require-

ments for grants to local governments); 38 C.F.R. 43.4 (Veterans

partmental actions echo the longstanding position of the

Secretary of the Interior that Alaska Native villages are

Administration uniform administrative requirements for grants to

local governments); 40 C.F.R. 31.3 (Environmental Protection

Agency uniform administrative requirements for grants to local

governments); 45 C.F.R. 74.3 (DHHS grant regulations); 45

C.F.R. 92.3 (DHHS uniform administrative requirements for

grants to local governments) ; 45 C.F.R. 1061.50-9(f) (DHHS com-

munity food and nutrition program); 45 C.F.R. 1157.3, 1174.3 and

1183.3 (National Foundation on the Arts and Humanities uniform

administrative requirements for grants to local governments from

the National Endowment for the Arts, the National Endowment

for the Humanities and the Institute for Museum Services); 45

C.F.R. 1207.1-2 (DHHS senior companion program); 45 C.F.R.

1208.1-2 (DHHS foster grandparent program); 45 C.F.R. 1234.3

(DHHS uniform administrative requirements for grants to local

governments); 45 C.F.R. 2015.3 (Commission on the Bicentennial

of the U.S. Constitution uniform administrative requirements for

grants to local governments); 49 C.F.R. 18.3 (Department of

Transportation (DOT) uniform administrative requirements for

grants to local governments) .

To the same effect, the Equal Employment Opportunity Commis-

sion has consistently ruled that Alaska villages are tribes under the

“Indian Tribe” exemption to the 1966 Civil Rights Act, 42 U.S.C.

2000e(b). Aloysius v. Yukon-Kuskokwim Health Corporation, No.

380-880-972 (E.E.0.C. Seattle Dist. Apr. 15, 1988); Zharoff v.

Kodiak Area Native Assn., No. 380-880-136 (E.E.0.C. Seattle Dist.

Mar. 11, 1988); Wwitschick v. Copper River Native Assn., No. 380-

880-216 (E.E.0.C. Seattle Dist. Mar. 11, 1983) (all involving multi-

tribal confederations) .

See also 24 C.F.R. 600.7(¢)( HUD comprehensive planning as-

sistance program); 24 C.F.R. 913.102 (HUD public and Indian

housing programs); 25 C.F.R. 81.1(w) (DOI tribal reorganization

under a federal statute); 25 C.F.R. 87.1(g) (DOI use or distribu-

tion of Indian judgment funds); 25 C.F.R. 101.1(e) (DOI revolv-

ing loan fund program) 25 C.F.R. 151.2(b), (c) (DOT land acquisi-

tion program); 25 C.F.R. 286.1(h) (DOI Indian business develop-

ment program).

See also 43 C.F.R. 4300.0-5 (DOI reindeer grazing program) ;

50 C.F.R. 173 (DOI endangered and threatened wiidlife program) ;

50 C.F.R. 18.3 (DOI marine mammal program); 50 C.F.R. 215.2

(National Marine Fisheries Service (NMFS) Pribilof Islands,

Alaska marine mammal program); and 50 C.F.R. 216.3 (NMFS

marine mammal program) (all containing definitions of “Alaska

Native”).

self-governing tribes with the power to regulate the af-

fairs of their citizens.‘ In the face of this formidable

record it is simply far too late in the day to seriously

question the Federal Government’s consistent treatment

of the Native villages, including Respondents Noatak and

Circle, as recognized tribes."*

* See 47 Fed. Reg. 53133-34 (Nov. 24, 1982); 48 Fed. b

5686 (Dec. 23, 1983); 50 Fed. Reg. 6055 (Feb. 13, ny 2 Pen

Reg. 25115 (July 10, 1986): 53 Fed. Reg. 52829 (Dec. 29 1988)

(all listing the ANCSA villages as federally recognized tribes, and

the latter adding the ANCSA corporations due to their eligibility

under certain statutes); Aboriginal Fishing Rights in Alaska, 57

I.D. 461 (1942); Status of Alaskan Natives, 53 L.D. 593 605

(1932); Hearings Before the Subcomm. of the Senate Comm. on

Interior and Insular Affairs on S. 2037 and S.J. Res. 162, 80th

Cong., 2d sess. 149 (testimony of Theodore H. Haas, Chief Counsel,

Bureau of Indian Affairs on proposals to repeal the IRA), 434-449

(setting forth 1945 ruling of Harold L. Ickes, ‘ ecretary of the

Interior on resolving certain claims of the Hydaburg, Klawock and

Kake Indians), 582-583 ( testimony of Mastin G. White, Solicitor,

Dept. of the Interior, discussing Alaska tribal aboriginal rights) ;

Validity of Marriage by Custom Among the Natives or Indians of

Alaska, 54 1.D. 39, 42 (1932); and 51 Fed. Reg. 28779 (Aug. 11,

1986); 48 Fed. Reg. 21378 (May 12, 1983): 48 Fed. Reg. 30195

(June 30, 1983) (setting forth the Secretary’s approval of tribal

liquor ordinances for Minto, Chalkytsik and Northway, respectively

pursuant to 18 U.S.C. 1161).

* Congressional treatment long preceding ANCSA further sup-

ports this conclusion. See e.g., Section 8 of the First Organic Act

of May 17, 1884, c. 53, 23 Stat. 24 (discussed in Tee-Hit-Ton v.

United States, 348 U.S. at 278; United States v. Berrigan, 2 Ak.

Rpts. 442 (D. Alaska 1904) ); Section 27 of the Second Organic Act

of June 6, 1900, c. 786, 31 Stat. 321 (also discussed in Tee-Hit-Ton) ;

Alaska Native Allotment Act of 1906, c. 2469, 34 Stat. 197 ( granting

Alaska Natives rights to land allotments similar to those afforded

tribal Indians elsewhere); the Snyder Act of November 2, 1921,

ce. 115, 42 Stat. 208, 25 U.S.C. 13 (authorizing appropriations for

the general support of Indian tribes); the Native Townsite Act of

1926, c. 379, 44 Stat. 629 (providing for conveyance of public lands

by restricted title to Natives in townsites); the Indian Reorganiza-

tion Act of 1934, 25 U.S.C. 476, 479 (authorizing Alaska tribes to

reorganize their tribal governments), 473a (amending the Act to

facilitate its application to village tribes); the Reindeer Industry

Act of 1937, c. 897, 50 Stat. 900, 25 U.S.C. 500-500 ( providing for

2. Congressional and Executive Branch Recognition

of the Tribal Status of Alaska Native Villages is

Consistent with the Activities of the Tribes Today.

There is no clearer reflection of the tribal status of

Alaska Native villages than in the present day activities

of their tribal governments in protecting and advancing

the health and welfare of their people. For instance,

Alaska tribes and confederations staff and administer

dozens of clinics and hospitals across the state, providing

such services as general hospitalization and medical care,

maternal child health programs, prematernal and child de-

livery care, consumer education, and dental and eye care.

They also provide hepatitis immunization, environmental

health programs, substance abuse treatment, accident pre-

vention and emergency medical programs, mental health

counseling and an extensive tribally-based community

health aide program. With BIA-funded contracts, ANA-

funded grants, and other sources Alaska’s tribes also ad-

minister programs for agricultural assistance, adult basic

education, higher education scholarships, direct employ-

ment, adult vocational training and housing improvement

assistance.** Among a wide range of other tribal govern-

the Secretary’s acquisition of all reindeer in Alaska and their subse-

quent distribution to Natives); Section 4 of the Alaska Statehood

Act of July 7, 1958, 72 Stat. 339, as amended, 73 Stat. 141, 48 U.S.C.

prec. 21 note (requiring the State to disclaim any right or title to

Native occupied lands, leaving their disposition to the Federal Gov-

ernment and exempting Native lands from state taxation); Public

Law 83-280, as applied to Alaska in 1958, codified in part at 18

U.S.C. 1162(a) and 28 U.S.C. 1360(b) (granting Alaska criminal

jurisdiction in Indian country and civil jurisdiction over causes

of action arising in Indian country but withholding any authority

for state taxation of restricted Native tribal property ).

46 Some, like amicus Native Village of Tanana, annually admin-

ister hundreds of thousands of dollars in IHS and BIA programs

serving tribal members. Other villages band together into con-

federations to achieve economies of scale, as is the case with the

Tanana Chiefs Conference (TCC), a coalition of some 40 Atha-

bascan tribes in the Interior of Alaska. In federally funded health

care programs alone, TCC annually administers $11 million in

programs.

ment services are state court intervention and tribal court

management in children’s cases subject to the Indian Child

Welfare Act," family counseling, child advocacy and in-

creasingly active trial and appellate tribal court systems.

Not surprisingly, Alaska’s tribal governments engage

in the usual and customary activities of any small local

government.** These include such mundane matters ap-

propriate to village life as regulating all-terrain vehicle

use, animal control problems, alcohol and illicit drug use,

curfews, and other matters protective of the general wel-

fare of the community. They provide by ordinance for

the election of council members and other elected tribal

officials and for the determination of tribal citizenship.

They raise governmental funds through a variety of

means, including taxes,’ user fees, bingo revenues and

business ventures. They provide such basic necessities as

fuel and water, and operate and maintain fire depart-

ments. They use tribal funds to build clinics, employ

staff and evacuate emergency patients by air transport

to medical facilities in Fairbanks or Anchorage. They

employ village public safety officers, adjudicate civil dis-

putes and minor crimes, operate water treatment pro-

grams, operate tribal courts, collect sales taxes and carry

out alcohol control measures (including tribal liquor or-

dinances certified and approved by the Secretary of the

Interior under 18 U.S.C. 1161). Some administer tribal

employment rights ordinances to maximize Native hire

in village-based projects. Most also administer substan-

“7 25 U.S.C. 1901 et seq. Many of the villages in Alaska partici-

pate in ICWA cases, and have adopted children’s codes and other

family ordinances.

** Approximately one-half of the Alaska tribes are situated outside

any state-chartered local government; their traditional govern-

ments are thus the only active governments in their villages. In

these areas the State recognizes their tribal governments as the

only elected leadership for the administration of state-funded local

programs.

** For example, as part of a growing trend, amicus Native Village

of Akiachak administers a local sales tax to support general gov-

ernment services.

tial State-appropriated funds as a key partner with the

State in forging comprehensive and effective local gov-

ernance.

In one example typical of many Native villages, amicus

Native Village of Tatitlek in Prince William Sound (near

the EXXON VALDEZ tanker disaster) runs government

programs and facilities; acquires and disposes of real

property; raises and spends government funds; regulates

land use, play areas and the cemetery; intervenes in child

welfare matters; administers day care services; operates

a clinic; administers sewer and solid waste facilities; pro-

vides community utilities (including electric, water and

home heating oil); maintains roads and an air field; is-

sues licenses; regulates alcohol; enforces animal control

ordinances: and carries out all the other services and

programs incident to the governance of a 120-member

tribe.

Tribal governments in the Northwest Alaska Inupiaq

and Gwitch’in regions are typical. The eleven villages in

the Northwest Arctic exhibit varying degrees of tribal

governmental activity. For instance, as early as 1908

Noatak had in place a seven-member tribal council which

passed regulations governing such matters as house loca-

tion, lot size, sanitation and dog control.” The current

Tribal Council is organized under the IRA and is the

sole governing body for the Village. Among other things,

it operates the local utilities ® and is currently engaged

in the construction of a multimillion dollar water and

sewer project through the Federal Emergency Manage-

ment Agency.

Amicus Native Village of Kotzebue is the largest tribe

in this region with some 1,800 members, most of whom

live in Kotzebue. The Tribe operates a wide array of

programs under BIA contracts to provide higher educa-

5 See generally Case at 443 and materials cited therein.

51 See Noatak Utility Board Rules & Regulations for Utility

Services adopted August 29, 1990 (copy lodged with the Clerk of

the Court). See also Noatak Ordinance No. 90-01.

tion, housing improvement and employment assistance.

The Tribe also employs a full-time social worker to ad-

minister activities under the Indian Child Welfare Act,

including regular intervention in state court children’s

proceedings, investigation of foster and pre-adoptive

placements, and related home studies. The other villages

in the region are similarly active.”

The governmental activities of the Gwitch’in tribes are

equally extensive. The Circle Vilage Council is the sole

government in Circle, and works cooperatively with the

Circle Civie Association. The Council currently is admin-

istering a federal housing grant and a grant to build an

electrical line. It is also administering a state-federal

grant to build a washerteria and shower facility. The

Council intervenes in ICWA cases and is presently rede-

signing its tribal court.

Amicus Native Village of Venetie is perhaps the most

active of all of the Gwitch’in tribes. The Venetie Tribal

Council owns 1.4 million acres comprising its former

reservation and has developed numerous ordinances gov-

erning those lands, such as the control of gambling, a

prohibition on alcohol, and regulation of family relations,

* For instance, amicus Village of Selawik is organized under the

IRA and has adopted ordinances governing tribal member enroll-

ment (Ordinance 88-01) and the Akuligaaq Tribal Court. See

generally Native Village of Selawik Ordinance No. 87-01. As is

typical of any villages it administers a contract from the Bureau

of Indian Affairs to support the operation of its tribal government.

Selawik IRA Council Contract No. E00C14203174 (Fiscal Year

1989). Amicus Kiana Village organized under a tribal constitution

adopted by the tribal members, had a budget in 1988 of $94,000 from

the Bureau of Indian Affairs to operate village governmental pro-

grams including higher education, tribal operations, housing im-

provement, employment and vocational education programs. The

tribe also operates the Katyaak Tribal Court. Kiana Ordinance No.

66-01, December 11, 1986. Amicus Native Village of Kivalina, also

organized under the IRA, was recently awarded a two-year $80,000

grant from the ANA to “enable the Kivalina IRA Council to de-

velop a tribal infrastructure and council training for the Native

village.” See ANA Award No. 10NA0171/01 (June 9, 1990).

animal control, speed limits and hunting. These ordi-

nances are a codification of traditional law, and their

application and enforcement is subject to the rulings of

the Venetie Tribal Court. The Council also regulates

general relations among the members, operates the air-

ports, leases land to the schools and levies taxes.™

The foregoing profile of the Northwest Arctic and

Gwitch’in tribes is typical of other tribes throughout

Alaska. Congress with good reason identified the Alaska

Native tribes in ANCSA: that recognition accorded with

their history. And with good reason Congress has re-

peatedly since ANCSA supported the tribes’ modern-day

activities of self-government. Bolstered and strengthened

by a multitude of federal programs and federal initia-

tives implemented since 1971, these tribes are the linch-

pin of Alaska Native self-determination today. The Ninth

Circuit recognized this when it correctly concluded that

if the Eleventh Amendment is not a bar to the Respond-

ents’ suit, they are as fully entitled to redress the depri-

vation of their tribal rights in federal court as any

other recognized Native American tribe.

CONCLUSION

For the foregoing reasons the judgment below should

be affirmed.

53 Similarly amicus Native Village of Fort Yukon manages ap-

proximately $700,000 in grants per year, including capital improve-

ment, self-determination, land management and a radio station, and

has enacted a child-in-need-of-aid ordinance. It has also established

a tribal court which issues adoption decrees. Amicvs Beaver has

promulgated extensive ordinances in such areas as speed limits,

animal control and discharge of firearms. It also engages in housing

rehabilitation activities and has established a tribal court for

ICWA cases.

Davin S. CASE

COPELAND, LANDYE, BENNETT

& WOLF

550 W. 7th Ave., Suite 1350

Anchorage, Alaska 99501

(907) 276-5152

JOHN M. Sky STARKEY

Box 219

Bethel, Alaska 99559

(907) 543-3521

* Counsel of Record

Respectfully submitted,

LLOYD BENTON MILLER *

REID PEYTON CHAMBERS

SONOSKY, CHAMBERS, SACHSE

& MILLER

900 W. 5th Ave., Suite 700

Anchorage, Alaska 99501

(907) 258-6377

ErRIc SMITH

Box 202828

Anchorage, Alaska 99520

(907) 276-8451

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.