Amicus Curiae Brief — Baker v. John

MOTION FILED

JAN 5 1 2000 (=)

No. 99-973

IN THE

Supreme Court of the United States

JOHN BAKER,

Petitioner,

Vv.

ANITA JOHN,

Respondent.

On Petition For A Writ of Certiorari

To The Supreme Court Of The State Of Alaska

MOTION TO FILE OUT OF TIME AND FOR LEAVE

TO FILE AMICI CURIAE BRIEF; AMICI CURIAE

BRIEF OF DRUE PEARCE, PRESIDENT OF THE

ALASKA SENATE, AND BRIAN PORTER, SPEAKER

OF THE ALASKA HOUSE OF REPRESENTATIVES,

IN SUPPORT OF PETITIONER

Theodore W. Popely, Esq.

State Capitol

Room 116

Juneau, Alaska 99801

(907) 465-3439

Counsel for Amici Curiae

Baimar Legal Publishing Services, Washington, D.C. (202) 682-9800

MOTION TO FILE OUT OF TIME AND

FOR LEAVE TO FILE AMICI CURIAE BRIEF

The movants, Drue Pearce, President of the Alaska

Senate, and Brian Porter, Speaker of the Alaska House of

Representatives (“Legislative Leadership”), in their official

capacities, seek leave to file this amici curiae brief, out of

time, because of the unique circumstances associated with the

meeting times of the Alaska State Legislature. The Alaska

State Legislature only convenes for a 120-day period each

year. At other times of the year, the Legislators scatter to the

four corners of Alaska and elsewhere. Meetings between

legislators as a group when not in session is often impractical.

This year, the Legislature did not convene until January 10,

2000, a few days after the January 6, 2000 deadline to file an

amici curiae brief (or request for extension, Sup. Ct. R.

30.2).

The Court should grant this motion to file out of time

for four reasons. First, the Legislative Leadership did not

want to take any action in this case until it had meet with

other members of the Legislature, including in the caucuses

most interested in this issue. The opportunity to do so did not

come until after January 10, 2000. As soon as this

consultation occurred, the Legislative Leadership instructed

that counsel file these motions and brief as soon as possible.

Second, the Legislative Leadership, and the majority

of the State Legislature they represent, has an unique interest

in this proceeding. The Legislature considers and passes the

state laws, specifically the state child custody laws, that are

being essentially preempted by the so-called laws -- of the

' This Court has granted motions to file out of time numerous times,

although it is undoubtably not the routine practice. See, ¢.g., American

Foreign Serv. Ass'n. v. Garfinkel, 489 U.S. 1050 (1989) (granting motion

of U.S. Senate and of Speaker and Leadership Group); Mansell v. Mansell,

488 U.S. 906 (1988) (granting motion of U.S. Solicitor); Livadas v. Aubry,

511 U.S. 1028 (1994) (granting motion of Food Employers Council).

ii

hundreds of Alaskan Native entities -- given life by the

Alaska Supreme Court case under appeal here. For example,

the Legislature passed Alaska Stat. § 25.20.060, which sets up

a procedure for resolving child custody disputes, including the

Principles that should guide the Superior Court’s decisions

(e.g., the best interest of the child). This Section also

addresses such issues as grandparent visitation (added in

Third, part of the impetus for the Legislative

Leadership to file this brief is the fact that the State of Alaska,

acting at the behest of the Governor and through its Attorney

General, filed an amicus curiae brief in opposition to the

Petition for Certiorari (i.e., a position diametrically opposed

to the Legislative Leadership’s position). The State’s brief

Suggests that the government of the State of Alaska supports

the Respondent and wants to uphold the Alaska Supreme

Court’s decision. But that brief represents the views of only

one branch of the Alaska government. The State did not file

its Opposition brief until January 6, 2000, so the Leadership

could not know that the State was going to file such a brief

until that time. For the Court to hear the views of another

branch of Alaska’s government, it will have to grant this

motion.

Fourth, the enclosed amici curiae brief is relatively

short and essentially expresses the Leadership’s support of the

not prejudice any party, as no party opposing the Petition for

Certiorari would have seen this brief before having to file

ili

their own briefs (they would have been due on the same day

under Sup. Ct. R. 30.2).

For these reasons, the Legislative Leadership

respectfully asked that the Court grant leave to file this brief

out of time.

For the same reasons as discussed above, the Legislative

Leadership requests that this Court grant leave to file this

amici curiae brief. See Sup. Ct. R. 37.2. The Petitioner

consents to the filing of the Brief. See Letter from Donald C.

Mitchell to Theodore W. Popely (January 21, 2000), App.

24a. The Respondent, however, apparently believes that this

Court should have the views of only two of the three branches

of the Alaska government (the Court through its opinion and

the Governor through the State’s amici curiae brief) and has

refused consent. Thus, the Legislative Leadership seeks leave

to file the following Brief.

The Legislative Leadership recognizes that such motions

are disfavored. Sup. Ct. R. 37.2(b). But in this situation, the

Court would benefit from hearing from all the branches of the

Alaska government, notwithstanding the Respondent’s desire

to silence one of those voices. Especially considering that the

following brief is relatively short and no party will suffer

prejudice from the Court accepting this Brief, the Court

should grant leave that this Brief be filed.

* To avoid gaining an unfair advantage from filing after the

Respondent’s opposition brief was due, no attorney preparing this brief

read the Respondent’s opposition brief before preparing this Brief.

iv

TABLE OF CONTENTS

MOTION TO FILE OUT OF TIME AND FOR

LEAVE TO FILE AMICI CURIAE BRIEF... i

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AMICI CURIAE BRIEF OF DRUE PREACE,

PRESIDENT OF THE ALASKA SENATE, AND

BRIAN PORTER, SPEAKER OF THE ALASKA

HOUSE OF REPRESENTATIVES, IN SUPPORT

LL cae EO OO RE TEL TT a l

I. INTEREST OF AMICI CURIAE................................ ]

Il. ARGUMENT — REASONS FOR GRANTING

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CONCLUSION isiscicicinsndiialne Bae ESN S88 ota) 9 yuk 5

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TABLE OF AUTHORITIES

FEDERAL CASES

American Foreign Serv. Ass’n. v. Garfinkel, 489 U.S.

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Livadas v. Aubry, 511 U.S. 1028 (1994).........sccccccscecsesseneenseees i

Mansell v. Mansell, 488 U.S. 906 (1988) .0...........cccccessesseeeeees i

STATE CASES

Cigna Ins. Co. et al. v. Moses, S-8908/8918 (Alaska

Supreme Court 1999)..........ccccscscsecsccscecsreerssessnoserarsssssereces 4

John v. Baker, 982 P.2d 738 (Alaska 1999) ...........cseeceeees izs

FEDERAL STATUTES

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STATE STATUTES

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COURT RULES

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Sep. Ct. R..37-20D) ....s.sssacerescacsoceascrrsccanesssareesenenssevoesnesoneornioan ili

Sup. Ct. R. 37.5 ......cc.csrccscsovscossscceseeretennesevesasenevavenenovsoccsoasosseese ]

vi

MISCELLANEOUS

Letter from Donald C. Mitchell to Theodore W. Popely

CAMRY 21; FIO siieinettdbsiheleee Oe iii

Letter from Alaska Attorney General Bruce Botelho to

Representative Gail Phillips (Jan. 11, 1996) .................. 1,5

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AMICI CURIAE BRIEF OF DRUE PEARCE,

PRESIDENT OF THE ALASKA SENATE, AND BRIAN

PORTER, SPEAKER OF THE ALASKA HOUSE OF

REPRESENTATIVES, IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

Amici Curiae are the President of the Alaska State

Senate and the Speaker of the House of Representatives of the

Alaska Legislature (i.e., the Legislative Leadership of the

State of Alaska).’ Representing the majority of 20 Alaska

Senators and 40 Representatives duly elected by all Alaska

citizens, the Legislative Leadership represents the views of

the majority of the Legislature. The Legislature has the duty

under the Alaska Constitution to formulate and enact laws in

the best interests of the State and its constituents.

Following the Alaska Supreme Court’s decision in

John v. Baker, 982 P.2d 738 (Alaska 1999), the case under

review here, hundreds of Native village governments may

now be exempt from the application of numerous state laws.

Thus, the Legislative Leadership is concerned that a vast

number of Alaska Natives are left unprotected by the State’s

uniform structure of laws, subject instead to no law at all or

any number of rules set by 226 different village tribal

organizations.’

The astonishing lack of governing rules is not limited

to domestic relations, but may extend to all the “same

inherent and delegated authorities available to other tribes.”

John, 982 P.2d at 753 (quoting 58 Fed. Reg. 54,366 (1993)).

* Amici curiae states that no counsel for a party authored this brief in

whole or in part, and that no person or entity other than amici made any

monetary contribution to the preparation or submission of this brief. Sup.

Ct. R. 37.5

* See, e.g., Letter from Alaska Attorney General Bruce Botelho to

Representative Gail Phillips (Jan. 11, 1996), attached as an appendix to

this brief (“Botelho Letter”), App. 9a-14a.

2

The Alaska Legislature will be the body forced to address the

uncertainty and confusion that will inevitably result from the

newly recognized sets of rules. Such uncertainty limits the

Legislature’s ability to regulate matters of vital importance to

the citizens of Alaska and compromises its sworn duty to

further the public interest. In addition to severely hindering

the Legislature’s role as policymaker for the State, the John v.

Baker decision will inevitably spawn substantial litigation

over precisely which state laws and regulations remain

applicable to Native villages and which do not. Litigation

Over sovereign immunity status will drain the limited

resources of both the State and Native communities, resources

that could be used better for much-needed services.

Contrary to representations made to this Court by the

State Department of Law in its amici filing, the Legislature is

the body that most closely represents the views of the State’s

citizenry, and it does support the petition for certiorari. Mr.

Baker has convincingly demonstrated why the decision below

warrants review by the Court. Amici is filing separately to

emphasize the difficulties that the decision poses for the

State’s lawmaking body and the Legislature’s ability to fulfill

its responsibilities to the Alaska citizens. As the branch of

government most directly impacted by the decision, the

Legislature can offer a unique perspective on both the

Legislative history leading to this dispute and the likely

consequences of a failure to review the lower court decision.

For these reasons, the views of amici should further inform

the Court’s judgment as to whether to grant the petition.

ARGUMENT - REASONS FOR GRANTING THE

PETITION®

The legal issues presented in this case transcend the

State of Alaska and constitute precisely the sort of “important

question of federal law” contemplated by Supreme Court Rule

* Because of the shortness of this Brief, no summary of the argument is

included.

are Na ES gl Bic ns

3

10(c). The Alaska Supreme Court’s interpretation of the

inapplicability of the Indian Child Welfare Act, 25 U.S.C. §§

1901-1963 (“ICWA”), io this case presents an issue of such

wide-reaching national scale as to merit review by this Court.

For example, the State of Alaska has cited several decisions

on this issue by other state and circuit courts, and the United

States has weighed in as an amicus curiae in the case before

the Alaska Supreme Court. Should the decision stand, the

likely result is a significant departure from the states’

traditional jurisdictional structure with respect to child

custody determinations.

The Alaska Supreme Court ignored the plain meaning

of the ICWA. Consistent with legislative history, Congress

provided an exception to the application of ICWA in child

custody disputes for “an award, in a divorce proceeding, of

custody to one of the parents.” 25 U.S.C. § 1903(1) (emphasis

added). The Alaska Supreme Court applied the exception,

ignoring the fact that Mr. Baker and Ms. John had never been

married and were not involved in a “divorce proceeding.”

John, 982 P.2d at 743. Congress’ limitation of the exception

to “divorce proceedings” should be read as it is written.

Judicial expansion of the plain meaning contained in the

Statute is unnecessary and inappropriate. Amici Curiae agrees

with Petitioner on this issue.

Amici Curiae also supports the Petitioner’s argument

that the Alaska Supreme Court has fundamentally

misconstrued the application of both the Assistant Secretary

of the Interior for Indian Affairs’ published list of Native

entities and the 1994 Federally Recognized Indian Tribe List

Act, 25 U.S.C. § 479a - 479a-1, (“FRITLA”). Prior to 1993,

no federal statute had ever recognized Native entities as

“tribes” in Alaska, except for inclusion for specific and

limited federal programs such as ICWA. In addition, no

* See State of Alaska amici curiae brief at 9.

4

Native village had petitioned the Assistant Secretary for

recognition as a tribe, as required by federal regulation.

To confer tribal status to a Native entity, the Secretary

must have been delegated that authority explicitly by

Congress. Legislative history confirms that the Assistant

Secretary unilaterally usurped that authority in 1993.

Congress did not explicitly delegate that authority, and it did

not affirm the Assistant Secretary’s actions in FRITLA.

Congress has long recognized Alaska Native villages as

“tribes” only for the limited purpose of receiving certain

program benefits from the federal government. That

inclusion cannot now be read to demonstrate Congress’

sudden departure from historical treatment of Alaska Natives

by naming them in the 1990’s as fully sovereign “tribes.”

Although the case at bar involves a _ custody

disagreement between two unmarried Native parents, the

implications of the Alaska court’s ruling are far broader.

Should Native residents of rural villages be considered

“federally recognized tribes” for the purpose of the issuance

of child custody decisions, then they may be “federally

recognized tribes” for all other purposes, including sovereign

immunity.

Newly conferred sovereign immunity could apply to

all of the 226 Native villages in Alaska. In addition to

domestic relations, a wide range of state laws and regulations

could be virtually invalidated for a significant number of

Alaska citizens. If the Alaska Supreme Court’s ruling stands

and Native villages are afforded tribal status for all purposes,

sovereign immunity may exempt tribes from compliance with

state law.

For example, currently on appeal before the Alaska

Supreme Court is a case where the widow of a man working

for the village of Mekoryuk IRA Council sought workers

compensation benefits after he was killed in an accident while

on the job. Cigna Ins. Co. et al. v. Moses, S-8908/8918

(Alaska Supreme Court 1999). The Alaska Workers

5

Compensation Board denied the widow benefits because

Mekoryuk was found to be a federally recognized tribe

possessing sovereign immunity, and was therefore immune

from suit for workers compensation death benefits. In

addition, the state Attorney General has acknowledged that

some Native entities have already claimed sovereign

immunity from application of the State’s environmental

protection laws. See Botelho Letter, App. 16a.

The decision of the Alaska Supreme Court undercuts a

significant premise on which the Legislature has patterned its

governance for much of the state and its citizens. The

implications of this case for the lawmakers of this State are

huge. From domestic relations to workers compensation to

environmental protection and beyond, the Alaska Legislature

has been placed ‘in an untenable position. Sworn to protect

the interests of the public in a fair and equitable manner, the

lawmakers are now forced to reconsider the application of

every law that has been considered and passed and each that

will be.

CONCLUSION

For the reasons discussed above, and those stated in

the Petition, the Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Theodore W. Popely, Esq.

State Capitol

Room 116

Juneau, Alaska 99801

(907) 465-3439

Counsel for Amici Curiae

Tony Knowles, Governor

State of Alaska

Department of Law

P.O. Box 110300

Juneau. Alaska 99811-0300

Phone 907 465-3600

Fax 907 465 3075

OFFICE OF THE ATTORNEY GENERAL

January 11, 1996

The Honorable Gail Phillips

Alaska House of Representatives

State Capitol

MS 3100

Juneau, Alaska 99801

Dear Speaker Phillips:

At the conclusion of the Joint House-Senate Judiciary

Committee hearing on tribal status held on December 4, 1995,

I pledged to provide additional information about this

important issue. This information is also being provided to

legislators who did not participate in the committee hearing as

a follow-up to my letter of November 27, 1995, on tribal

status issues.

Let me emphasize once again that the decision by the

Knowles Administration to withdraw the challenge to federal

recognition of tribes in Alaska was not driven by litigation

considerations. Instead, it was motivated by a commitment to

working with Alaska villages to achieve a healthier, safer

environment in which the community is an active participant

2a

in solutions. Litigation over the issue of tribal status was

viewed as a major impediment to this state-local partnership.

Nevertheless, the Administration’s decision to not pursue

the litigation over tribal status is also supported by events that,

taken together, lead one to conclude that the probability of

prevailing in the federal courts was extremely low. Very few

human endeavors are static. In this instance, litigation over tribal

status began in the 1980's because, in the absence of any clear

federal expression that tribes existed in Alaska, the state was

unwilling to accept each and every assertion of tribal status. As

discussed further below, there has been extensive federal activity in

the last two years that justified a fundamental reevaluation of the

State’s posture in the litigation.

THE FRAMEWORK FOR FEDERAL RECOGNITION

OF TRIBES

Historically, the Alaska Supreme Court has held that

for the most part, except far Metlakatla, no tribes exist in

Alaska. The court extended sovereign immunity to Metlakatla

in Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977), holding:

Once the [federal] executive branch has determined that

the Metlakatla Indian Community is an Indian tribe,

which is a nonjusticiable political question, the

community is entitled to all of the benefits of tribal

Status.

569 P.2d at 163.

More recently, the court has declined to find sovereign

immunity or has concluded that, if it did exist, it was waived

by the tribe. These cases include Nenana Fuel v. Native

Village of Venetie, 834 P.2d 1229 (Alaska 1992); Hydaburg

Coop. Ass’n v. Hydaburg Fisheries, 826 P.2d 751 (Alaska

1992); Native Village of Stevens v. Alaska Management &

Planning, 757 P.2d 32 (Alaska 1988); and Native Village of

Eyak v. GC Contractors, 658 P.2d 756 (Alaska 1983). No

case, however, has questioned the fundamental holding of

Atkinson v. Haldane.

3a

\

Four events have occurred since the Alaska Supreme

Court’s last decisions in 1992 that suggest the court would, if

presented the question, decide tribal status issues differently

today, in keeping with its decision in Atkinson. Those events

are: (1) the Secretary of Interior’s tribal listings published in

1993 and 1995; (2) Congress’ enactment of the Federally

Recognized Indian Tribe List Act of 1994; (3) Judge H.

Russel Holland’s decision in Native Village of Venetie v,

State, No. F86-0075 CIV (HRH), issued December 23, 1994,

holding that the Native Village of Venetie Tribal Government

is an Indian tribe under the common law criteria; and (4)

Judge Holland’s decision in the same Venetie case on the

tribal status of Fort Yukon issued on September 20, 1995.

Department of Interior’s 1993 and 1995 Tribal Lists

In 1993, the executive branch of the federal government took

a significant step intended to remove any ambiguity as to the

tribal status of certain Alaska Native entities. On October 21,

1993, the Secretary of Interior published a list of more than

220 Alaska Native villages identified as having the same

Status as tribes in the contiguous 48 states. The preamble to

the 1993 list expressly declared:

The purpose of the current publication is to

publish an Alaska list of entities conforming to the

intent of 25 C.F.R. 83.6(b) and to eliminate any

doubt as to the Department’s intention by expressly

and unequivocally acknowledging that the

Department has determined that the villages and

regional tribes listed below are distinctly Native

communities and have the same status as tribes in the

contiguous 48 states. Such acknowledgment of tribal

existence by the Department is a prerequisite to the

protection, services, and benefits from the Federal

Government available to Indian tribes. This list is

published to clarify that the villages and regional

tribes listed below are not simply eligible for

services, or recognized as tribes for certain narrow

purposes. Rather, they have the same governmental

4a

status as other federally acknowledged Indian tribes

by virtue of their status as Indian tribes with a

government-to-government relationship with the

United States; are entitled to the same protection,

immunities, privileges as other acknowledged tribes;

have the right, subject to general principles of

Federal Indian law, to exercise the same inherent and

delegated authorities available to the other tribes; and

are subject to the same limitations imposed by law on

other tribe.

58 Fed. Reg. 54365-54366 (Oct. 21, 1993) (footnote omitted;

emphasis added).

The tribal list published by the Secretary on February 16,

1995, reinforces this intent. The preamble to the 1995 list states

that it constitutes the list of “federally acknowledged tribes in

the contiguous 48 states and in Alaska.” 60 Fed. Reg. 9250

(Feb. 16, 1995). The preamble further points out that

subsequent to the publication of the 1993 list, Congress enacted

the List Act of 1994 in which “Congress confirmed the

Secretary’s authority and responsibility to establish a list of

Indian tribes and mandated that he publish such a list annually.”

The updated 1995 list was published in response to that

Congressional mandate. 60 Fed. Reg. at 9251.

The List Act of 1994

In late 1994, Congress was called upon to address the 1993

tribal list because of the Department of Interior’s failure to

include two tribes on the earlier list. One of the excluded

tribes was the Central Council of Tlingit and Haida Indian

Tribes of Alaska.

The result was enactment of the “Federally Recognized Indian

Tribe List Act of 1994.” Public Law 103-454; 25 U.S.C.

479a. In the List Act of 1994, Congress directed that the

Secretary annually publish a list of federally recognized

tribes; under the Act, once recognized, an Indian tribe may be

terminated only by an act of Congress. Title II of the Act

noted that the Secretary’s 1993 list did not include the Central

Sa

Council and expressly reaffirmed the federal recognition of

that tribe. :

The House Natural Resources Committee report

accompanying the legislation discusses the October 21, 1993,

list of Alaska Native tribes and notes the continuing

controversy over the existence of “Indian country” in Alaska.

House Report No. 103-781; 1994 U. S. Code Cong. and Adm.

News, p. 3768. The committee emphasized that the Act is

neutral on the Indian country issue: “The Act merely requires

that the Secretary continue the current policy of including

Alaska Native entities on the list of Federally recognized Indian

tribes which are eligible to receive services.” Id. at 3771.

The December 23, 1994, Decision in the Venetie Case

On December 23, 1994, Judge Holland ruled that the Native

Village of Venetie Tribal Government (encompassing the

Native Village of Venetie and Arctic Village) is a tribe based

on the federal common law criteria. Those criteria are: (1) the

group is a group of Indians of the same or similar race; (2) it

is united in a community; (3) it operates under one leadership

or government; (4) it inhabits an area of some reasonable

definition; and (5) it is the modern day successor to an

historical sovereign entity which exercised at least minimal

government functions. In applying these criteria to the

evidence presented at trial, the court took a broad view of

each one making it unlikely that any village would fail to

meet the test.

The September 20, 1995, Decision in the Venetie Case (Fort

Yukon)

The 1993 and the 1995 tribal lists, as well as the List Act

of 1994, were considered by the U.S. District Court for Alaska

when it was called upon to decide Fort Yukon’s tribal status in

the Venetie case. The state contested Fort Yukon’s inclusion on

the 1993 and 1995 lists because, in identifying the listed

villages, the Secretary of interior had failed to follow the

Department of Interior regulations necessary to achieve tribal

recognition.

6a

In a decision issued on September 20, 1995, the court

rejected the state’s argument. The court held that the Secretary

of Interior has the power to recognize tribes as a result of the

historical acquiescence of Congress. The federal regulations

established a procedure for unrecognized tribes themselves to

initiate proceedings to gain the Secretary’s recognition.

However, the court concluded, this is not the exclusive means

by which a tribe may receive federal recognition, and “[t]he

Secretary himself need not use this regulatory scheme, but may

recognize a tribe due to his historically acquiesced power”.

Order, September 20, 1995, at 9. The court found that the

ambiguity surrounding the status of the Alaskan entities on the

tribal lists published by Interior from 1982 to 1988 was

resolved by the publication of the October 21, 1993, list: “the

executive’s intent was clearly announced” on that date. Jd. at 8.

Thus, as of that date, the Native Village of Fort Yukon (as well

as the other entities on the list) became a federally recognized

tribe.

The court found support for its ruling on the tribal status of

Fort Yukon in the List Act of 1994, stating:

Congress repudiated a decision by the Secretary to

remove two Alaskan tribes from the Secretary’s 1993

list of recognized tribes. Congress did not, however,

repudiate any other portion of the 1993 list. Congress

actually referred to the 1993 list and ordered the two

tribes returned to it. Tribe List Act, section 202(2).

This leads to the conclusion that Congress approved

of this list.

Order, September 20, 1995, at 10.

On October 20, 1995, the state moved for

reconsideration of the court’s decision, thus precipitating a

careful policy review by Governor Knowles. The state’s motion

for reconsideration was later withdrawn. The plaintiffs also

moved for reconsideration, arguing that Fort Yukon was a

federally recognized tribe by virtue of its inclusion on the

Department of Interior’s tribal lists published from 1982 to

Ta

1988. On December 12, 1995, Judge Holland issued a decision

reaffirming his previous ruling. The court stated that it had

reconsidered its order of September 20 on the tribal status of

Fort Yukon and concluded that it had made no error of fact or

law in that order. The court reiterated its holding that as of

October 21, 1993. Interior clearly declared the listed villages,

including Fort Yukon, to be federally acknowledged tribes.

The Status of the “Indian Country” Issue

In two recent decisions issued by Judge Holland, the

Venetie case and the Kluti Kaah case, the court held that

ANCSA lands are not Indian country. Both of these cases have

been appealed to the Ninth Circuit Court of Appeals. As I stated

in my November 27, 1995, letter, the Knowles Administration

will defend Judge Holland’s decisions in the Indian country

cases on appeal.

The Venetie Indian country case arose out of Venetie’s

effort to impose a business activities tax on a school

construction project in the village. The ability of a tribe to tax

depends on the tribe having a territory, i.e., Indian country; over

which it exercises jurisdiction. In August 1995, Judge Holland

determined that the ANCSA lands owned by Venetie are not

Indian country. Thus, the tribe cannot impose a tax on

construction projects on ANCSA lands.

On November 28, 1995, Judge Holland ruled that the Kluti

Kaah Native Village of Copper Center neither owns nor

occupies land constituting Indian country. Therefore, Kluti

Kaah lacks jurisdiction to impose a business activities tax on

the section of the TransAlaska Pipeline System running

through the area.

The essence of the Venetie and Kluti Kaah Indian country

decisions is: (1) the test for Indian country is whether the land

has been validly set apart for the use of Indians as such, under

the superintendence of the federal government; (2) it is the

tribe, not the land, that must be under federal superintendence;

(3) following ANCSA, Alaska Native tribes are not subject to

the degree of Congressional and Executive agency control that

8a

evidences an intention that the federal government, rather than

the state, be the dominant political institution in the area and are

therefore not under the superintendence of the government; and

(4) under the terms and structure of ANCSA, land conveyed to

ANCSA corporations cannot be said to have been set aside for

the use of Natives as such, and therefore is not Indian country.

While the decision to not pursue litigation over tribal

recognition may focus the debate on the Indian country issue, it

does not dilute the state’s arguments on that issue. The federal

court has already rejected arguments that tribal status

establishes the existence of Indian country. As stated by the

Department of Interior ,in its preamble to the 1995 list,

“{iJnclusion on the list does not resolve the scope of powers of

any particular tribe over land or non-members. It only

establishes that the listed tribes have the same privileges,

immunities, responsibilities and obligations as other Indian

tribes under the same or similar circumstances .. .” 60 Fed.

Reg. at 9251. The department then noted the opinion of the

Solicitor of the Department of Interior, which concluded,

construing general principles of federal Indian law and

ANCSA,

that ANCSA largely, controls in determining whether

any territory still exists over which Alaska villages

might exercise governmental powers. We also

conclude that, notwithstanding the potential that

Indian country still exists in Alaska in certain limited

cases, Congress has left little or no room for tribes in

Alaska to exercise governmental authority over land

or nonmembers.

60 Fed. Reg. at 9251 n.1 (quoting Opinion of the Solicitor of

the Department of Interior, Thomas Sansonetti, M-36975, at

108, January 11, 1993). See also 58 Fed. Reg. at 54366 n.1.

9a

SUMMARY OF ISSUES ADDRESSED

During the December 4 hearing, additional information

was requested on a number of issues. One of the items

requested was a list of tribal powers. Many of the issues

discussed below concern the scope of powers of a recognized

tribe without Indian country (i.e., tribal authority over internal

affairs and domestic relations of tribal members; the treatment

of tribes under the Clean Water Act: sovereign immunity;

alcohol control; criminal law enforcement; Indian gaming;

and fish and game management). Questions were also raised

concerning the relationship of certain sections of the

Statehood Act and the Alaska Constitution to tribal

recognition; the federal statutes in which Alaska Native

villages are defined as tribes for specific federal purposes; and

the budgetary impacts of the tribal status litigation. These

questions are discussed below as well.

Before going into those issues, however, let me reiterate what

I stated in my letter of November 27 on tribal recognition

generally. Tribal recognition is a federal, not a state, function.

Tribal recognition means that Alaska’s tribes are eligible to

receive funding and services from the federal government, are

able to set rules for tribal membership and the domestic

relations of their own members, and are immune from suit.

Governmental powers such as the right to tax, manage fish

and game, and prosecute criminal cases are only applicable in

Indian country; in other words, without Indian country, tribes

have no jurisdiction to exercise such powers.

Tribal Authority over Internal Affairs

It is well established in federal Indian law that each tribe has

the power to set its own membership criteria. Identification of

a person as a member of an Indian tribe is an issue solely

within the control of the tribe, and perhaps the individual.

Tribes can also choose the structure within which they govern

themselves. They may consider traditional tribal councils,

IRA councils, or some form which combines traditional and

modern factors. Traditional councils and IRA councils are not

10a

subject to most state laws. Limitations on tribal action are

governed by the Indian Civil Rights Act (ICRA), 25 U.S.C. §

1301, and by Congress.

Child Protection - Indian Child Welfare Act Matters

The Division of Family and Youth Services, Department

of Health and Social Services, responds to reports of harm

regarding child abuse and neglect. Reports concerning Native

children involve those living in villages, those living in urban

areas, and those whose families travel back and forth. All of

the villages listed in ANCSA have long been recognized as

“Indian tribes” for purposes of the Indian Child Welfare Act

(ICWA). See 25 U.S.C. 1903(8). Therefore, state acceptance

that the listed Native villages are tribes does not change

DHSS’s longstanding practice of notifying tribes regarding

Alaska Native children who come under the child protection

statutes and the tribes’ right to participate in state court child

protection cases.

Not all tribes participate in state court ICWA cases

involving their children. This happens for many reasons,

including lack of funds, agreement with the state’s position,

and concern about lay representation instead of representation

by counsel at state court proceedings.

Over the years the state has entered into formal

agreements with a number of tribes regarding how they will

interact in child protection cases, from the earliest reports

through the completion of each case. Some tribes have not

signed the agreements because they do not address tribal

jurisdiction.

The issue of jurisdiction under ICWA bears some

discussion. Through ICWA, “Congress created a

comprehensive jurisdictional scheme for the resolution of

custody disputes involving Indian children. This scheme

expanded the role of tribal courts and correspondingly

decreased the scope of state court jurisdiction.” Native Village

of Venetie IL.R.A. Corrs ». Alaska, 944 F.2d 548, 555 (9th

Cir. 1991). For insts-.c, under ICWA, jurisdiction is

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exclusive in the tribe when the child custody proceeding

involves Indian children who reside on their tribal

reservations (exclusive jurisdiction requires proof of Indian

country). In the case of Indian children who do not reside or

are not domiciled on their tribe’s reservation, the state court

may exercise jurisdiction (at least) concurrent with the tribal

court. However, the state court must refer the dispute to the

tribal court unless good cause is shown for the retention of

state court jurisdiction.

For tribes in some states, the exclusive and referral

jurisdiction provisions of ICWA took effect automatically.

However, tribes located within Public Law 280 states, which

include Alaska, can invoke such jurisdiction only after

petitioning the Secretary of the Interior and having been

granted jurisdiction. Public Law 83-280 (commonly referred

to as Public Law 280) gave enumerated states concurrent

jurisdiction over criminal and civil matters involving Indians,

where jurisdiction has previously vested only in federal and

tribal courts. The civil portion of this statute is codified at 28

U.S.C. § 1360.

The Alaska Supreme Court and the federal courts are not

in agreement on their interpretation and application of Public

Law 280 in the [CWA context. The disagreement is over

whether, under Public Law 280 and ICWA, the state has

exclusive jurisdiction or concurrent jurisdiction over child

custody determinations when the tribe has not petitioned the

Secretary for reassumption of jurisdiction.

The Alaska Supreme Court has held that, under Public

Law 280, tribal courts in Alaska have no child custody

jurisdiction (and the state court has exclusive jurisdiction)

unless the tribe has petitioned for reassumption of jurisdiction

under ICWA. Matter of F.P., 843 P.2d 1214 (Alaska 1992); In

re K.E., 744 P.2d 1173 (Alaska 1987); Native Village of

Nenana v. Department of Health and Social Serv., 722 P.2d

219 (Alaska 1986). In Alaska, only the Metlakatla Indian

Community has petitioned for and been granted such

jurisdiction.

12a

The Ninth Circuit has held that under ICWA and Public

Law 280, a tribe that has not petitioned for exclusive or

referral jurisdiction may exercise concurrent jurisdiction with

the state over child custody cases. Village of Venetie 1.R.A.

Council, 944 F.2d at 561-562. The F.P. case was decided

after, and explicitly declined to follow, the Ninth Circuit’s

holding in Village of Venetie that any Alaska Native entity

that proved itself a tribe retained inherent power over child

welfare without going through the reassumption process.

Therefore, the state courts and agencies currently cannot,

under Alaska law, agree that any Alaska Native tribe other

than Metlakatla may assert exclusive jurisdiction under

ICWA, 25 U.S.C. § 1911(a). Similarly, the Alaska courts

cannot order the transfer of a case from state court to a tribal

court, even though courts in other states have been

transferring cases to tribal courts in Alaska for years.

Cultural Adoptions

The state currently issues substitute birth certificates

when the appropriate parties attest that a cultural, or

customary, adoption has taken place. Such adoptions, which

are recognized under both federal and state law, are a

traditional practice in which, for a variety of reasons,

responsibility for a child is shifted from the natural parents to

others. Before a substitute birth certificate can be issued, both

natural parents must sign a state-provided form identifying the

child and the child’s tribe and affirming that an adoption has

occurred under tribal custom. In addition, the governing body

of the child’s tribe must certify, in writing, that the adoption

has followed tribal custom.

The legal effect of issuing tire substitute birth certificate

is unclear, as is the legal effect of a cultural adoption in any

given tribe. The state does not recognize tribal court adoptions

because of the existing Alaska case law mentioned above,

although the federal court has ordered the state to give full

faith and credit to the adoption decrees of the Native Village

of Venetie to the same extent it gives full faith and credit to

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adoption decrees from other jurisdictions. Native Villiage of

Venetie R.A. Council v. State, Memorandum of Decision,

December 23, 1994. The court will be issuing a similar order

regarding adoption decrees of the Native Village of Fort

Yukon in the Fort Yukon portion of the Venetie case.

Marriage, Divorce, and Child Custody

A tribe’s authority over the domestic relations of its

members may prompt regulation of marriage and divorce and

setting of tribal rules for each relationship. As tribes

increasingly regulate the relationships of their members, they

may perform more marriages and divorces and make more

child custody decisions. Since Alaska is a Public Law 280

State, state courts have at least concurrent jurisdiction over

family matters. This may lead to jurisdictional questions

between the state courts and tribes which will need to be

resolved.

The Clean Water Act and Indian Tribes

A question was raised concerning whether Alaska’s

tribes may be treated as “states” under the Clean Water Act.

Under the longstanding federal interpretation of the Act, the

answer is “no,” except for the Metlakatla Indian Community,

because “treatment as a state” is limited to federal Indian

reservations.

The Federal Water Pollution Control Act, more

commonly known as the Clean Water Act, contains two

sections expressly dealing with Native Americans. Section

113, which was part of the 1972 Act, is entitled “Alaska

village demonstration projects.” It authorizes the EPA to enter

into agreements with the State of Alaska to carry out safe

water projects and pollution control projects in “Native

villages of Alaska.” “Village” is defined to mean:

an incorporated or uncorporated community with a

population of ten to six hundred people living

within a two-mile radius.

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33 U.S.C. § 1263(g).

Section 113 also authorizes federal executive agencies to

coordinate with the State of Alaska and “appropriate Native

organizations” to develop comprehensive sanitation programs

in the Native villages. The term “Native organizations” is

defined by reference to the Alaska Native Claims Settlement

Act. Id. at (e). Thus, the Clean Water Act has long recognized

Alaska Natives as such.

In 1987, Congress added section 518 to the Act. 33

U.S.C. § 1377. Entitled “Indian Tribes,” section 518

authorizes the EPA to promulgate regulations specifying how

the agency will treat tribes in the same manner in which it

treats states.' The statute specifies those programs in which

an Indian tribe can be treated as a state and also lists three

criteria that must be met to attain such status. Jd. at (e).

Essentially, a tribe may develop water quality standards and

issue effluent permits only if: (1) the tribe has a governing

body carrying out substantial governmental duties; (2) the

affected water resources are held by or for the tribe or a tribal

member “or [are] otherwise within the borders of an Indian

reservation”; and (3) the tribe has the technical and legal

ability to carry out the mandates of the Clean Water Act.

Section 518 expressly refers to Alaska Natives in several

contexts. Some funds are expressly reserved for “Alaska

Native Villages as defined in [ANCSAJ].” 33 U.S.C. §

1377(c). Subsection (g) expressly disclaims any effect section

518 may have on “the scope of the governmental authority, if

any, of any Alaska Native organization, including any

federally-recognized tribe . . .” Notwithstanding these two

references, it is doubtful that section 518 applies to any

Alaska Native tribe other than the Metlakatla Indian

Community because, as explained below, the section appears

’ Similar language is found in the Clean Aix Act and the Safe Drinking

Water Act, 42 U.S.C. § 7601(d)(2)(B) and 42 U.S.C. § 300j-11(b)(1)(B)

respectively.

15a

to be limited to “reservations.” See subsections (e)(2) and

(h)(1).

i Pursuant to section 518, EPA has promulgated

if “treatment as a state” regulations. One set of rules governs

4 tribal establishment of water quality standards. 40 C.F.R. 131,

56 Fed. Reg. 64875-96 (1991). Another pertains to dredge and

fill permits (wetlands). 40 C.F.R. parts 232 and 233, 58 Fed.

Reg. 8171 (1993). Another pertains to financial grants. 40

C.F.R. parts 35 and 130, 54 Fed. Reg. 14354 - 60 (1989). The

most recent publication of which we are aware “specifies how

Tribes will be treated in the same manner as States for various

provisions of the CWA.” 40 C.F.R. 122, 123, 124 and 501, 58

Fed. Reg. 67966 (1993).

A reading of the most secent rule shows EPA only treats

tribes as states on matters related to resources within a

reservation. Thus, because Metlakatla is the only reservation

tribe in Alaska, the decision to no longer contest the tribal

status of Alaska Native villages on the 1993 and 1995 lists of

federally recognized tribes will have no impact under the

Clean Water Act “treatment as a state” provisions.

OL REALE LA IER FEE VT

Sovereign Immunity

One of the attributes tribes enjoy is sovereign immunity.

See, e.g., Native Village of Eyak v. GC Contractors, 658 P.2d

at 758. This immunity extends to corporations created by the

tribe, such as those chartered under the Indian Reorganization

Act. The most common Native corporations in the state

currently are ANCSA corporations, which do not enjoy

sovereign immunity because they are state-chartered

corporations.

* “EPA believes that it was the intent of Congress to limit Tribes to

obtaining the status of Treatment in the Same Manner as a State for lands

within the reservation. . . Tribes are limited to obtaining Treatment in the

Same Manner as a State status for only water resources within the borders

of the reservation over which they possess authority. . . “ 58 Fed. Reg.

67970.

l6a

Sovereign immunity bars suits against tribes. It also bars

cross-claims and counterclaims. United States v. U. S. Fidelity &

Guar. Co., 309 U.S. 506, 512 (1940). It does not bar suits against

individual tribal officials. Congress can waive the tribes’ sovereign

immunity, but the waiver must be clearly expressed and strictly

construed. See Santa Clara Pueblo v, Martinez, 436 U.S. 49

(1978); Turner v. U.S., 248 U.S. 354 (1919).

The extent to which and manner in which tribes can

waive their sovereign immunity is less clear. The Alaska

Supreme Court has held that tribes can waive their sovereign

immunity by contract. Nenana Fuel v. Native Village of

Venetie, 834 P.2d at 1233; Native Village of Eyak v. GC

Contractors, 658 P.2d at 759. However, federal law requires

that to waive immunity by contract in matters relating to trust

property, tribes must receive Secretarial or Congressional

consent.

With respect to environmental laws, the federal courts

generally hold that Congress has abrogated tribal sovereign

immunity when the United States seeks to enforce federal

environmental laws against tribes. Therefore, a tribe operating

a business would not be immune from federal environmental

standards and requirement. However, state enforcement of its

standards and requirements against such an entity may be

problematic. A few Native groups in Alaska have claimed”

sovereign immunity in response to efforts by ADEC to

enforce the state’s “little superfund law,” AS 46.03. This

could be an area of dispute with tribes in the future.

Alcohol Control

Under state law, both Native and non-Native residents of

rural villages have been delegated significant authority to

control the use of alcohol. AS 04.11.490--04.11.506. In

addition to adopting restrictions on alcoholic beverages,

“local governing bodies” may protest the issuance, transfer,

relocation, or renewal of liquor licenses. Currently, the

Alcoholic Beverage Control Board regulates the licensing of

establishments that manufacture, sell, of otherwise deal in

17a

alcoholic beverages, including those located within Native

villages.

If a particular tribe were recognized as having control

over an area of Indian country, that tribe could adopt alcohol

ordinances for enforcement in its tribal courts. In addition, the

tribe could choose to adopt ordinances regulating the sale,

importation, or possession of alcoholic beverages within its

Indian country through a federal process instead of the state

process, thereby making the ordinance enforceable by a

federal court. See 18 U.S.C. § 116. Otherwise, federal and

state laws concurrently govern the control and regulation of

alcoholic beverages in Indian country. Rice v. Rehner, 463

U.S. 713 (1983),

Criminal Law Enforcement

Tribal recognition alone does not confer tribal

jurisdiction over any criminal act. The criminal jurisdiction of

a tribe is limited to the territory it controls. Without territorial

jurisdiction, i.e., Indian country, a tribe has no criminal

jurisdiction.

A tribe can exercise criminal jurisdiction over its

members within Indian country. Where Indian country exists,

tribes have the power to make their own criminal laws and

enforce them in tribal counts unless Congress limits that

power. U.S. v. Wheeler, 435 U.S. 313 (1978). The Indian

Civil Rights Act, 25 U.S.C. § 1302, limits how tribes exercise

their powers of self-government. Tribes cannot exercise

criminal jurisdiction over non-members unless Congress

expressly grants that power. Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191. (1978).

Generally states have no criminal jurisdiction over tribal

members within Indian country. Rice v. Olson, 324 U.S. 786,

789 (1945); Worcester v. Georgia, 31 U.S.(6 Pet.) 575 (1832).

However, in 1958 Congress gave the State of Alaska

“jurisdiction over offenses committed by or against Indians in

the areas of Indian country ... .” 18 U.S.C. § 1162, Pub. L.

83-280. As a Public Law 280 state, Alaska has jurisdiction

18a

over all crimes committed in Indian country. Although 18

U.S.C. § 1162 refers to the state having “exclusive

jurisdiction” within Indian country, courts have recognized

concurrent tribal jurisdiction over minor crimes.

Indian Gaming

Tribal recognition does not impact Indian gaming in

Alaska. The federal Indian Gaming Regulatory Act of 1988,

25 U.S.C. §§ 2701-21 (IGRA), permits recognized Indian

tribes to conduct Class III gaming on “Indian land” if such

gaming is otherwise legal in the state, upon negotiation of a

gaming compact that is approved by the federal Indian

Gaming Commission. Class III gaming consists of all casino

games except bingo, pull-tabs, and traditional social games of

chance. Without Indian land, a tribe does not have the

necessary territorial jurisdiction to conduct gaming. In

addition, under current state law casino gaming is illegal and

thus not allowed to Natives or non--Natives in Alaska.

Fish and Game Management

State recognition of Alaska tribes does not affect fish and

game management. Indian rights to manage fish and game

originate from three sources: (1) reservation status of land; (2)

off-reservation treaty rights; and (3) federal preemption of

state regulation. Only one reservation exists in Alaska

(Metlakatla), and no treaties exist between the federal

government and Alaska Natives. Therefore, any Native rights

to manage fish and game can only be based on federal statutes

preempting state control. In Alaska, ANILCA grants rural

residents, both Native and non-Native, a priority for the taking

of fish and wildlife on public lands for subsistence uses.

Tribal recognition does not impact this individual federal

right.

Nel ia a a a a aah ie Cad

19a

Alaska Native Villages Defined as Tribes for Specific

Federal Purposes

Although blanket federal recognition of Alaska Native

villages as tribes did not occur until the October 21, 1993,

listing, Congress has repeatedly chosen to treat Alaska Native

villages as tribes for specific purposes.

The following statutes are examples of instances in

which Alaska Native villages have been included in the

statutory definition of Indian tribes or where Native villages

have been included along with tribes in definitions of units of

government affected by statutes (citations are primarily to the

definition sections involved:

5 U.S.C. § 3371. Provisions for personnel assignments to

and from states.

15 U.S.C. § 637. Aid to small businesses.

16 U.S.C. § 470w. Assistance in the conservation of

historic sites, buildings, objects, and antiquities,

16 U.S.C. § 470bb. Programs for archaeological

resources protection.

20 US.C. § 3232. Assistance in bilingual education

programs.

20 U.S.C. § 4402. Assistance in development of

American Indian, Alaska Native, and Native Hawaiian

culture and art.

23 U.S.C. § 101. Assistance provided for public roads

under the program for federal aid for highways.

25 U.S.C. § 472a. Included as a “tribal organization” in

applying Indian preference laws.

25 U.S.C. 1452. The Indian Financing Act of 1974.

25 U.S.C. § 1603. The Indian Health Care Amendments of

1980.

20a

25 U.S.C. § 1622. Eligibility of tribal organizations for

health care grants and contracts.

25 U.S.C. § 1903. The Indian Child Welfare Act.

25 USC. §§ 2011 and 2019. Establishing a new national

Indian education system.

25 U.S.C. § 2401. Indian alcohol and substance abuse

prevention and treatment.

26 U.S.C. § 4225. Exemption of articles manufactured or

produced by Indians.

29 U.S.C. § 706. Provision of vocational rehabilitation

and other rehabilitation services.

29 U.S.C. § 1671. Employment and training programs

for Native Americans and migrant and seasonal farm

workers.

31 U.S.C. § 7501. The single audit requirement for state

and local governments.

42 U.S.C. § 628. HHS payments to Indian tribal

organizations for child welfare services.

42 U.S.C. § 1471. USDA financial assistance for farm

housing.

42 U.S.C. § 2991b. HHS financial assistance for Native

American projects under the HHS Native American

Program, administered by ANA.

42 U.S.C. § 2992c. RHS program for Native Americans.

42 U.S.C. § 3002. HHS programs for older Americans.

42 U.S.C. § 5061. HHS programs for administration and

coordination of domestic volunteer services.

42 U.S.C. § 5122. Provision of federal assistance to other

levels of government for disaster relief.

2la

42 U.S.C. §§ 5302 and 5316. Assistance in providing

public facilities under the Housing and Urban

Development Act of 1968.

42 U.S.C. § 6707. Grants four public works projects.

42 U.S.C. § 6723. Assistance under anti-recession

provisions for public works employment.

42 U.S.C. § 5903. Assistance in the planning and

administration of solid waste disposal.

42 U.S.C. § 8803. Assistance in the development of

biomass energy and alcohol fuels.

42 U.S.C. § 9601. Special programs and assistance

relating to hazardous substance releases, liability and

compensation.

42 U.S.C. § 10101. Assistance in handling nuclear waste.

42 U.S.C. § 11472. Set-asides to assist in education,

training, and community services for the homeless.

Section 4, Alaska Statehood Act and Article XII, Section 12,

Alaska Constitution

A member of the public who testified at the hearing

inquired about the relationship between section 4 of the

Statehood Act and article XII, section 12 of the Alaska

Constitution, and the tribal status and Indian country issues.

Both section 4 of the Alaska Statehood Act (Pub. L.

85-508, 72 Stat. 339 as amended) and article XII, section 12

of the Constitution of Alaska provide that the state and its

people “forever disclaim all mght and title to any lands or

other property” owned or subject to disposition by the United

States, and to any lands or other property, including fishing

rights, the right or title to which may be held by or in trust for

any Indians, Eskimos, or Aleuts. Both sections further provide

that all such property shall be subject to the absolute control,

jurisdiction, and right of disposal of the United States except

as Congress otherwise provides.

22a

These provisions have no relevance in the debate over

tribal status; they do not address the issue. The Statehood Act

expressly states that it shall not be construed to “recognize,

deny, enlarge, impair, or otherwise affect” claims against the

United States or to establish the validity or invalidity of any

such claim. Tribes are not mentioned in either provision, and

these sections have not been relied on by tribal advocates in

the cases now in the federal courts. These provisions are cited

as justification for permitting Native selections of

State-selected lands under the Alaska Native Claims

Settlement Act (ANCSA), 43 U.S.C. 1601 ef seq., and

exempting undeveloped ANCSA land from taxation, but

beyond that, they are not germane to the current debates over

tribal status and Indian country.

Budgetary Impacts of Tribal Status Litigation

Concern was expressed by a legislator that the Department of

Law may have made representations about litigating the tribal

Status issue in order to secure funding for litigation.

The Department of Law made no commitment in any

budget document to litigate the tribal status issue. The

department has in the past sought CIP funding to litigate other

issues that concern or involve the interests of Alaska Natives.

These include the Endangered Species Act cases, the fishing

treaty cases, the submerged lands cases, and various ANILCA

challenges, most notably Katie John v. United States and

Totemoff v. State, This litigation continues. See, e.g., CP

Descriptions for FY 1995 and FY 1996.

CONCLUSION

Some participants in the December 4, 1995, hearing’

characterized the decision to no longer contest the tribal status

: During the hearing a legislator requested a copy of the report

entitled Legal Status of the Alaska Natives by Robert L. Price (July 30,

1982; 1983 and 1989 supplements). Please let my office know if you

would like a copy.

23a

of Alaska Native villages as a wholesale reversal of prior

executive and legislative branch policies and an abdication of

responsibility. This view does not reflect the true complexity

of the state’s dealings with tribes.

Successive state administrations have recognized the need to

work with tribal entities in various contexts. For example, as

discussed earlier, since the early 1980’s the state has entered

into memoranda of agreement with tribes implementation of

the Indian Child Welfare Act. Governor Cowper’s

Administrative Order No. 123 acknowledged tile existence of

tribes in Alaska. Although Governor Hickel later revoked

Administrative Order 123 and declared that the state “opposes

expansion of tribal governmental powers and the creation of

“Indian Country’ in Alaska,” his administration did not

oppose tribal status in a wholesale fashion. Thus, my

predecessor chose not to contest the tribal status of the Kluti

Kaah Native Village of Copper Center in litigation over the

tribe’s right to impose a tax on the TransAlaska Pipeline

System.

Since 1985 the legislature itself has authorized state aid

to Alaska Native village councils to the extent they waive

immunity from suit for claims arising out of activities related

to the payment. AS 29.60.140.

Finally, while people may disagree with the wisdom: of

this policy change, there should be no doubt that the Governor

has the authority to adopt and implement the tribal status policy

for his administration, just as his predecessors have done. As

attorney general, I will continue to provide the best legal advice

available to the state’s chief executive and to support his policy

choices to the extent they are consistent with the law. In this

instance, I have no reservation in doing so.

Very truly yours,

Bruce M. Botelho

Attorney General

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Donald C. Mitchell

Attorney at Law

1335 F Street

Anchorage, Alaska 99501

(907) 276-1881

dcraigm @ aol.com

January 21, 2000

Theodore W. Popely

Counsel for the Senate and House Majority

Alaska State Legislature State Capitol, Room 116

Juneau, Alaska 99801

Re: Baker v. John

Petition for Certiorari No. 99-973

Dear Mr. Popely:

Mr. John Baker, the petitioner in the above-captioned action,

consents to the Honorable Drue Pearce, president of the

Alaska Senate, and the Honorable Brian Porter, speaker of the

Alaska House of Representatives, filing a brief in the

above-captioned action as amici curiae in support of the

petitioner. Mr. Baker also supports President Pearce and

Speaker Porter’s motion to file their brief out of time.

Sincerely,

Donald Craig Mitchell

Counsel of Record for Petitioner John Baker

cc: Andrew Harrington Counsel of Record for Respondent