# Amicus Curiae Brief — Baker v. John

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0530%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1182

## Text

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
TABLE OF AUTHORITIES .......0...cccccccssssssccscsssseeosssseeccce...... v

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
ER PERE OIN crcennccinsiesds ete idl. ci ts. 2

CONCLUSION isiscicicinsndiialne Bae ESN S88 ota) 9 yuk 5

Vv

TABLE OF AUTHORITIES
FEDERAL CASES

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

1050 (49GB) ison nccdicickciesenscisdsesnetaniebbessecavectatsubbdatnoebindsssbonse i
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
DS UBC. © STRAT vecivcsivctssistcsnscsscescaseiessoncselneinantiponeintions 3
DS UB © FY escdceccvsceriieitidcchssinptinisanccccisaninensemepnnaiotinn |
25 USC. GE TOGE-19GS wikccinitsctieniccinitconanin 3
STATE STATUTES
Alnakca Stat. § 2S 2O0G sciisiscsscssvsssscinsicteicstinseinssienspaanonieaames il
COURT RULES

Sup. Ct. R. 10(C) ............ccccssoreccencsscesercassoosensscensesseseseasasoserscsese 3
Sap. Cl BR. 90.2 cnsincscesecorsecsasesesiensonsssecestceissavanessnaponanscscevors i, iii
Sete, CO BR 37.2. .ciesssssssscssnesmevesiovenesooseusnseenennvedivessavsnsisooeesssne ili
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

13a

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.

l4a

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

24a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0530%3A5. Public record. Not legal advice.