ALASKA NATIVES COMMISSION
JOINT FEDERAL-STATE COMMISSION
ON
POLICIES AND PROGRAMS AFFECTING
ALASKA NATIVES
4000 Old Seward Highway, Suite 100
Anchorage,
Alaska 99503
TABLE OF CONTENTS
Witness List | Exhibit
List
| PDF Version
Deposition Exhibit #6 - Testimony
of Shirley L. Lee
TESTIMONY BEFORE THE
ALASKA NATIVE COMMISSION
ON
TRIBAL GOVERNANCE ISSUES
Shirley L. Lee, Director
Village Government Services
July 18, 1992
CONTENTS
Introduction
Proposed DOI Solicitor's Opinion on Tribal Status in Alaska
Federally Recognized Tribes and Alaska "Native
Entities"
Tribal
Courts
Indian Reorganization Act Constitution
Tribal Facilities
Equity of Bureau of Indian Affairs OIP Funding between Alaskan
and Lower 48 Tribes
INTRODUCTION
When
the words "tribal government" or "sovereignty" are
used many people become confused. They do not understand tribes
in Alaska do exist, both customarily and in a legal sense, and
possess inherent powers unique only to tribal governments. Tribes
in Alaska perpetuate timeless practices of self-government and
traditions.
Many times there exist two governmental organizations
in a village -the tribal government and a state municipality.
Municipalities
or cities are non-Native systems which do not incorporate tribal
practices into their infrastructure. Tribal governments, on the
other hand, reflect and utilize the culture and traditions of
the tribe.
In Alaska, there are two forms of tribal governments.
A tribe is either organized under common tribal law or under
the Indian
Reorganization Act (IRA) of June 19, 1934 (48 Stat. 984) as amended.
The IRA, a federal statute, was passed in an effort to have tribes
formally organized pursuant to an "Anglo" system.
It was applied to Alaska in 1936.
There has been much discussion
on which government, traditional or IRA, possesses the "most" powers.
In recent court cases it has become apparent that tribes organized
under the
IRA seem to hold a stronger legal argument that they do indeed
exist as a tribe and thus their powers are more easily identified.
Tribes organized under the IRA have a written constitution approved
by the Secretary of Interior and this is perceived as having
a stronger federal acknowledgement of tribal status as opposed
to a traditional government which has not been federally organized.
Regardless of this perception, tribes organized traditionally
hold and exercise all powers enumerated in the IRA.
When we speak of being sovereign governments we refer to our
right of self government. Only tribes themselves know what is
culturally appropriate for their governmental operations. In
order for tribes to function it is not required that their laws
be written, that a tribal
institution be drafted or that their tribal membership be identified.
That is a non-Native yardstick of existence which does not validate
or invalidate tribal governments.
The lack of written documentation of tribes, coupled with the
fact that only one reservation exists in Alaska, leads many people
unfamiliar with Native laws to dismiss tribal governments. Unfortunately,
tribes in Alaska must even fight to assert their very being.
The following is a discussion of the current issues affecting
tribal governments today. One of those issues is the status of
tribal governments in Alaska.
1. PROPOSED DOI SOLICITOR'S
OPINION ON TRIBAL STATUS IN ALASKA.
Secretary of the Interior
Lujan has directed the Interior Solicitor to prepare an opinion
on tribal sovereignty in Alaska. Secretary
Lujan has asked for "views on the nature and extent of governmental
powers which an Alaska Native village may have over lands and
non-members" because he "believes such an opinion
would be useful to him in resolving questions which may arise
in the context of approving the constitutions which villages
are seeking to adopt pursuant [to the Indian Reorganization Act]".
The specific issues to be addressed by this opinion are unknown
to us. It is generally believed that tribal status, Indian country,
tribal authority and jurisdiction will be reviewed in such an
opinion. The Secretary of the Interior is charged with the approval
of IRA constitutions so long as they contain no language "contrary
to applicable law". Applicable law is defined in the Indian
Reorganization Act, P.L. 100-581, as being:
"[A] ny treaty, Executive
Order or Act of Congress or any final decision of the Federal
courts which are applicable to the tribe, and any other laws
which
are applicable to the tribe pursuant to an Act of Congress or by a final decision
of the Federal courts."
The stated reason for the opinion is that the Secretary
needs legal advice on what can and cannot be approved in IRA
constitutions for Alaska. The basis
for
disapproval is clearly defined and any other reasons used for disapproval
would be capricious. Additionally, we believe the Secretary is
without authority
to define tribal sovereignty issues in Alaska. These matters are for the
courts to decide.
Too often, important decisions concerning tribes
in Alaska are politically motivated. We have requested Secretary
Lujan to withdraw his request for
a Solicitor's opinion
and to process IRA constitutions within the established and adequate guidelines
already in place.
2. FEDERALLY RECOGNIZED TRIBES AND ALASKA "NATIVE
ENTITIES".
Pursuant to 25 C.F.R. 83.6 the Secretary of the
Interior is required to annually
publish in the Federal Register a "list of all Indian tribes which are recognized
and receiving services from the Bureau of Indian Affairs". Indian Tribe" is
defined in those regulations as "any Indian group within the continental
United States that the Secretary of Interior acknowledges to be an Indian tribe".
(These regulations are being rewritten and hopefully the revision will clarify
and correct the exclusion of Alaskan tribes from this definition).
Tribal status in Alaska is constantly being challenged, most notably by the State
of Alaska. The state government has a long record of opposing tribal status and
asserts that there are no tribes in Alaska but merely Native entities with membership
based on race. The state refuses to deal with tribes in a government-to government
relationship.
Meanwhile, Alaskan tribes continue to participate
in and utilize federal tribal legislation such as the Self-Determination
Act, the Indian Child
Welfare Act
and the Indian Reorganization Act. They could not utilize these laws if they
did not possess sovereign powers. Native entities do not and cannot exercise
such powers.
The required listing of tribes is important in
that it identifies tribes with which the federal government maintains
a government-to-government
relationship
and thus which tribes are entitled to federal services and protections.
The
last list was published on December 29, 1988. It included a separate
section for Alaska Native Entities which contained a lengthy
preamble. The preamble
set out criteria under which entities could be included in the list.
Generally,
the list includes councils organized under the Indian Reorganization
Act, village and regional corporations formed pursuant to the
Alaska Native Claims Settlement Act (ANCSA),
Native groups formed or
identified under ANCSA and mere reference to a village. Traditional councils
are not specifically
addressed in the criteria or listed. This leaves the status of traditional
councils in doubt.
Another major problem with this listing is that-not
all "Alaska Native Entities" are included in it. The
Juneau Area Office conducted a review of the 1988 listing in
addition to subsequent listings and
made recommendation
to add villages and make further corrections. These recommendations were
submitted to the Assistant Secretary of Indian Affairs on January
13. 1988.
To date no follow-up action has been taken by the
Bureau. We are on record,
together with many others affected by this matter, as having requested the
1988 list be
rescinded, corrections made and a new list published.
Tribes do exist in Alaska. That has been recognized by the courts, most notably
in Noatak v. Hoffman, 872 F.2d 1384, (9th Cir. 1989); which reaffirmed
an earlier ruling that all Alaska Native villages organized under the 16
or
listed in
ANCSA have tribal status at least for purposes of suit under 28 U.S.C. 1362
and that
they are tribes for purposes of the Eleventh Amendment to the United States
Constitution.
The statements and structure of the federal listing
is in direct contrast to Presidential policy of self-determination.
President George Bush,
in a
written
statement dated June 14,1991, reaffirmed the government-to-government relationship
between the federal government and the 500+ tribes in America, including
the 200+ tribes in Alaska. In his policy statement President Bush commented
that
these government-to-government relation-ships were "the result of
sovereign and independent tribal governments being incorporated into the
fabric of our
Nation, of Indian Tribes becoming what our courts have come to refer to
as quasi-sovereign domestic dependent nations. These relationships certainly
are not sustained by
the Secretary's listing of Alaska tribal entities.
3. TRIBAL COURTS
One of the powers exercised by
tribal governments is the administering of tribal justice.
This is most often done through a tribal
court. Again, many people might
not recognize a tribal court in the village as there are numerous forms of
organization and operations. Some tribes simply utilize
their tribal councils as a court while
others form a separate body. Some tribes adopted written laws or ordinances
while others rely on customary practices.
Due to the great
importance of protecting individual rights, including those
of due process and equitable treatment
guaranteed by the Indian Civil Rights
Act of 1968, many tribes are working toward formalizing their tribal courts.
This entails careful planning and implementation.
Throughout the years
Alaska tribes have been on, the short end of the stick when
it comes to tribal court funding and technical assistance from
the
Bureau of
Indian Affairs. One tribe in all of Alaska was funded in Fiscal Year
1992 out of a one-million dollar BIA grant source. This grant
money was available
on
a national competitive basis and some 13 tribes in Alaska applied. Fiscal
1991 also only saw one tribe in Alaska funded by BIA for tribal court
grants.
Despite the lack of federal funding tribes strive
to continue to operate their tribal courts. The need for training
is great.
We have urged Assistant
Secretary
of Indian Affairs, Eddie Brown, to evaluate the grant process for tribal
court monies to Alaska and foresee an immediate need for a tribal court
training center or program.
4. IRA CONSTITUTIONS
The Indian Reorganization
Act of June 19, 1934 (48 Stat. 984) as amended, allows tribes
to reorganize under federal statute.
Tribes must submit a proposed constitution
to the Secretary of the Interior for approval. A draft constitution goes
through three levels of review at the Bureau of Indian Affairs.
Reviews are done consecutively
at the local Agency, Area Office and finally the Central Office in D.C. A
tribal roll must also be submitted to identify eligible voters.
Until recently the Bureau withheld any action on
IRA requests. (Most Alaska IRA requests on file with the Bureau
were submitted
at least ten years ago.)
This
practice was successfully challenged in court in Coyote Valley Band
of Pomo Indians v. United States of America, 639 F. Supp. 165, 172
fn.7, (E.D. Cal.
1986). Because
of this decision the IRA was amended on November 1, 1988 through P.L. 100-581,
and set specific time frame for the processing of IRA requests.
While the
processing of IRA requests has improved there remains problems.
In the last two IRA elections held in Alaska, Assistant Secretary of
Indian Affairs
Eddie Brown has attached a disclaimer to the approval of the constitutions.
This disclaimer states that Bureau approval does not validate any tribal
assertions of powers over lands and non-members. (See discussion above
on proposed Solicitor's
Opinion on Tribal Status in Alaska.) This disclaimer, we believe, exceeds
the Secretary's authority to issue approvals without attachments.
The
State of Alaska and private groups opposed to tribal governments
continue to delay the IRA process in Alaska by opposing the processing
of IRA requests.
Because of this political pressure legal questions are raised which
further hinder the rights of tribes to reorganize as permitted
by federal statute.
5. TRIBAL FACILITIES
While this is not a major
issue we felt it deserved comment. In the rural villages office
space is at a premium. Most
tribes do not have tribal offices in which
to conduct routine business. Tribes do not have easy access or the financial
means to basic office equipment. They cannot simply type up a letter. This
lack of tribal facilities directly affects effective tribal government
delivery. TCC
is working to improve this situation by employing a tribal administrator
for each of the 43 tribes we serve and helping to secure
office space and equipment.
6. EQUITY OF BIA OIP FUNDING
FOR ALASKA.
Every year the Bureau of Indian Affairs allocates
Operation of Indian Programs monies to BIA Agencies and tribes.
As
follow-up to an analysis of FY 1991
OIP distributions done by the Arizona Inter Tribal Council in January
1992, TCC
prepared a report on OIP distributions for Fiscal Years 1992 and 1993.
A copy of our report
is available if needed.
Generally our research revealed that the Juneau
Area Office of BIA comprises the third highest service population
in the Bureau while it receives
only about 3% of the national OIP funding. Additionally, Alaska is
home to some
200 of
the 500 tribes in America.
This inequity will be hard to resolve as
the funding is based on existing distributions, needs and availability
of funds. TCC continues to review
this issue.
This document was ocr scanned. We have made every attempt to
keep the online document the same as the original, including
the recorder's original misspellings or typos.
