On Sept. 1 a commentary appeared online at Alaska Dispatch News, written by a lawyer whose goal seemed to be to convince the public that tribes do not exist in Alaska and therefore, by extension, could not take their fee lands into trust. Beginning with the 1934 Indian Reorganization Act (IRA) which was extended to include Alaska in 1936, the writer attempts to make his case for the non-existence of tribes. He doesn't explain why he is so invested in this non-existence nor does he indicate why he is so against the taking of lands into trust by Alaska's tribes. Without logical reasons for questioning the existence of tribes, or preventing these tribes from protecting and governing their land-holdings, we must ask why private citizens would want to challenge the existence of tribes, or for that matter, a land-into-trust decision unless it adversely affected their own property.
We must also question why our Congressional delegation should consider asking Congress for an amendment to the IRA which would adversely affect the interests of Alaska's tribes who also happen to be citizens of our state, especially when no tribes are requesting that change.
A "tribe" is defined in the Oxford English Dictionary as "A social division in a traditional society consisting of families or communities linked by social, economic, religious, or blood ties, with a common culture and dialect, typically having a recognized leader." "Tribes" existed all over the Americas long before contact with Europeans. While these groups may not have originally used the word "tribe" to describe themselves, it is the word that is now in common use by the settler societies and also by the tribes themselves to identify these political entities. There is such a large body of research (archeological, anthropological, geographical etc.) to support their existence that few people would dispute this. Alaska was not somehow separate from the rest of the continent, and there is a lot of proven research indicating that clearly defined political groups of people, now known as tribes, existed in Alaska long before European contact.
Subsequent to contact, a substantial body of law developed that recognized the existence of tribes in Alaska long before the IRA became law. Before examining that law we should first look at the context for the IRA. The IRA was passed in large part to counter the absolute devastation visited on tribes in the Lower 48 by the Dawes Allotment Act (1887). This piece of legislation coincided with a period of extreme racism against Native peoples in the Lower 48 and rampant desire by immigrants to acquire Native lands. Only after tribes had been reduced to abject poverty and millions of acres of tribal land had been lost, did Congress realize the serious negative ramifications of this legislation and countered it with the IRA. Although there was not the same rush to grab land in Alaska, the racism and gold rush were there, and it was recognized that similar problems could occur in Alaska as the immigrant population expanded unless tribes there were also protected.
The IRA was extended to Alaska in 1936. Subsequently six reserves were created under the Act. These came in addition to two statutory reserves, approximately 150 executive order reserves and five public purpose reserves created for Alaska Natives prior to 1936 (Case and Voluck 3rd ed., page 84/85). Regardless of the terminology used to describe them, it is very clear that the federal government recognized that there were political entities in Alaska with which it had the same relationship and to whom it owed the same duties of care as it did with entities known as tribes in the rest of the nation.
The writer cites a 1988 Alaska Supreme Court decision Native Village of Stevens v. Alaska Management & Planning (which has since been modified by later decisions) to support his case for the non-existence of tribal sovereignty. The case based its holding on tribes in part on an obscure decision by a federal district court judge in a case called In Re Sah Quah (1886) which has since been discredited. In that case the judge held incorrectly that tribes lacked sovereignty unless they had signed treaties with the United States and, because Alaska tribes had not signed any, they could not be sovereign. In reality of course the opposite is true. The signing of a treaty does not create sovereignty; both parties have to be sovereign to participate. The reason there were no treaties in Alaska related to the existence of a less than five year window between the signing of the Treaty of Cession in 1867 and 1871 when Congress moved from signing treaties with tribes to making agreements. In this very short period no treaties were negotiated because the need to ask Alaska Natives to cede land had not yet arisen; it had nothing to do with the standing of Alaska tribes to participate in treaty making.
Early federal decisions in U.S. v Berrigan (1905), U.S. v Cadzow (1914) and In Re McCord (1957) clearly speak to the existence of tribes in Alaska. Modern decisions from our own Supreme Court include John v Baker (1999), State v Native Village of Tanana (2011), Simmonds v Parks (2014) and McCrary v Ivanoff Bay (2011). These decisions are a small selection from a longer list of cases that clearly recognize the existence of tribes in Alaska. No serious scholar can ignore the large amount of legal literature that supports Alaskan tribal existence.
In spite of the writer's views to the contrary, Assistant Secretary of the Interior, Ada Deer, did not invent Alaska's tribes. Including tribes on the federal register makes their relationship with the federal government clear, but tribes must already exist in order to be placed there. Recognition for Alaska's tribes was long overdue but it was in no way magic. The Alaska Native Claims Settlement Act (ANCSA) left tribes with little to no land but it certainly did not extinguish their existence as governments or the inherent sovereignty that those governments possess because their inception predates that of the United States. There was a hurried attempt to settle Native claims to land so that the pipeline construction could proceed. ANCSA was not intended to meet the political needs of Alaska Natives for self-governance. Tribes are the political entities best positioned to meet those needs. ANCSA corporations are not governments nor should they be expected to try to govern.
In the same way that the federal government cannot invent tribes, it also cannot simply eliminate them. When this was tried during the 1950s termination era of federal Indian policy, it had disastrous effects, worsening poverty for Indians and increasing the cost to states for services. Terminated tribes fought to be reinstated and some were ultimately successful while others are still litigating. Termination policy did not eliminate the people who formed those tribes and still actively participated in their functions; those people were obviously very much invested in the existence of their tribes and did not want to lose what they had.
One really has to wonder why anyone would want to eliminate tribes. Some people convinced themselves that assimilation was "in the best interest of Indians" but that theory has long since been de-bunked. Forced assimilation never brings good results. The real intent behind allotment and assimilation was to divest Indians of their lands and resources and we would hope that would not be an objective today. Individual Natives who wish to assimilate into non-Native society and disassociate themselves from tribal activities can do this, so the argument that Alaska Natives are somehow being forcefully prevented from assimilation is also unsound. No one will be forcing anything unwanted on tribes ... unless someone tries to terminate their existence.
While examining objectives we should perhaps take a look at what might happen if the writer's wishes came true and Alaska's tribes were all to lose their federal recognition. Non-federally recognized tribes are not eligible for federal funds to help defray the costs of governance. They cannot participate in programs intended to promote the well-being of tribal citizens. The burden for supporting these communities, many of which are in very remote locations and have extremely high levels of unemployment, would fall upon our already cash-strapped state government. Alaskans, both Native and non-Native, would lose jobs. It is hard to see how that could be in anyone's best interest. We already know that the state is unable to provide anything remotely close to adequate law enforcement in many Native communities, forget about other services; what do we suppose would happen if all federal funding went away?
Looking further we would find that eliminating tribes would be unlikely to benefit ANCSA corporations. They would likely be the first port of call when tribal citizens found their governments had lost all of their funding and this would place them in a very difficult position. ANCSA corporations were never intended to govern or provide social services and if large numbers of people began demanding this they would find it extremely difficult if not impossible to meet the need. This would be especially problematic in regions where the majority of younger Alaska Natives are not shareholders.
In the rest of the nation, states have learned to co-exist with tribes and recognize their sovereignty, and all parties are learning to be good neighbors and share resources. People have moved beyond some of the extreme ways of thinking that fueled efforts to extinguish tribal existence, and it really is time that we in Alaska left antiquated ideas of assimilation and termination behind. Attacking tribes and those who work on their behalf serves no useful purpose and only exacerbates the situation. Accepting tribal presence and understanding their needs for land jurisdiction and protection would be the most forward-thinking thing we could do. Alaskans benefit in so many ways from the existence of tribes; supporting that existence is in everyone's best interest.
Jenny Bell-Jones is an assistant professor and program coordinator of the Department of Native Studies and Rural Development at the University of Alaska Fairbanks.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com