# Amicus Curiae Brief — Blatchford v. Native Village of Noatak

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 775

## Text

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

A.

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-

C,

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
i

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

18

18

26

30

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

iv
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

v

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.
ae

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

3
25
1

23

vi vii
TABLE OF AUTHORITIES—Continued

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
3

4, 22

11

12, 15

12

12

15, 16
8
13
1!
11,15

12

ix
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)

sf

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-

zc
e
a
3
x
3

2g

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.

© See Alaska Statehood Act of 1958, Pub. L. No. 85-508, 72 Stat.
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

4

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).

5

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-

7

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

10

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

ll

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

12

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

13

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.

14

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

15

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

16

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.

17

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

18

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).

19

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

20

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).

22

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 =

23

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

24

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”).

25

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

26

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.

27

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.

28

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.

et

29

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).

30

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

31

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0753%3A16. Public record. Not legal advice.