OPINION: Alaskans should pay close attention to tribal sovereignty issues

Alaska has recognized the sovereign status of tribes within our state consistently since the 1999 Alaska Supreme Court decision in John v. Baker. No question about that. Alaskans of all stripes can successfully deal with the ramifications and complications of tribal sovereignty, but not well and not without strife if we are not better educated about what tribal sovereignty means.

My passion, the purpose of this commentary, is to encourage free and open discussion about tribal sovereignty. Alaska Native governments and corporate structures form a big part of our uniquely great state. Alaskans must not feel that they are “touching the third rail,” an issue too controversial, too hot, to even discuss. Alaska has about 220 federally recognized tribal governments organized under federal law. Alaska has a similar number of village for-profit corporations, which were created to accept land and funding through the 1971 Alaska Native Claims Settlement Act. These village corporations are organized under state corporate law and are located within the same roughly 220 communities as the tribes. Each little community may have a city government, a tribal government and an ANCSA village corporation. A lot of paperwork for a few people! The village corporations, like Chickaloon-Moose Creek and Seldovia Native Associations, are organized separately from but with links to the 13 regional ANCSA for-profit corporations, like Cook Inlet Region, Inc. and Arctic Slope Regional Corp.

Alaska’s tribal governments have formed about 20 regional consortia organized as nonprofit corporations — such as Tanana Chiefs Conference, Maniilaq and Association of Village Council Presidents. For example, Fairbanks-based TCC is a tribal consortium representing about 41 villages in Alaska’s Interior. Some consortia only involve three or four tribes.

Regional nonprofits provide services to their member tribes. For-profit ANCSA organizations, both village and regional, provide dividends to their member shareholders.

As sovereign nations, federally recognized tribes have sovereign immunity from suit for breach of contract, slip-and-fall lawsuits, and other matters. Alaska’s state government knows this and obtains a limited waiver of sovereign immunity whenever, for business transactions, it is prudent to do so.

As mentioned above, Alaska has about 20 tribal consortia registered as state nonprofit corporations. Arguably they, too, are sovereign entities holding immunity from suit. And that argument is pretty intense right now.

Former Alaska Attorney General Jahna Lindemuth’s 2017 policy statement on tribal sovereignty asserted that Alaska’s tribal consortia do not have sovereign immunity. At that time, Alaska’s lower court had ruled against such immunity. But attorneys are active, and interpretation of the laws at issue is somewhat fluid.

A key case now before the Alaska Supreme Court is Yvonne Ito v. Copper River Native Association. Ito, a former employee, is challenging her dismissal by CRNA, a tribal consortium. The lower court said CRNA has sovereign immunity from suit – that no state or federal court has jurisdiction to hear the case. Several tribal consortia have submitted amicus briefs supporting CRNA’s position.

The state’s Supreme Court invited the state to participate, noting that important matters of taxation, licensing, regulation and municipal ordinances were likely at issue. The state responded with notice of intention to cover these topics in an amicus brief, due shortly, by Feb. 9.

The nature of sovereign immunity from suit is complicated. Former U.S. Supreme Court justices Ruth Bader Ginsburg and John Paul Stevens both wrote critical comments when dissenting from majority decisions that supported tribes in major sovereign immunity cases in Michigan and Oklahoma.

As a non-attorney student of American Indian law for several decades, I have reviewed materials pertinent to the Ito case. Among them is a March 2019 presentation by three UAF professors available on YouTube entitled “Indian Country Explained.” It repeatedly stresses the need for competent legal advice when doing business with tribes. This presentation does not mention tribal consortia.

Several tribal consortia, including the Alaska Native Tribal Health Consortium, have filed informative amicus briefs in the Ito case. All are accessible via the Alaska appellate court website, appellate-records.courts.alaska.gov. TCC asserts its sovereign status and frequent filings of limited waiver of immunity when doing business. The CRNA brief, page 14, states it “as a matter of policy does not waive immunity in employment contracts.” A tribal consortium is a group of tribes as authorized under the 1975 Indian Self-Determination and Educational Assistance Act. Each consortium is established to carry out services typically provided by federal or state entities, usually health or education related. The consortium receives federal funds to do this. These consortia employ thousands of Alaskans and engage in frequent business dealings. Within the bounds of federal law, each consortium establishes its own rules, consistent with member tribes’ directions. Thus, legal advice is always needed when doing business with tribes and tribal consortia.

Tribal consortia and tribes work through contracts and compacts. They are different. It is my understanding that when a compact is signed, disengagement by the non-tribal entity from the agreement can be quite difficult to accomplish. Recently, advocates have urged the Alaska Legislature to turn over some state government functions, particularly rural schools, to tribal consortia.

A local tribal consortium providing local or regional education may be desirable, but the ground rules for the endeavor need to be well defined – whether contract or compact.

Several other states have developed advisory documents, or primers, for doing business with tribes within their states. Each state is different. Alaska is desperately in need of such a document. Alaska is unique because over a third of U.S. tribes are in Alaska, because many are small and without developed judicial systems, and because the state and federal governments work with numerous tribal consortia, all of which may have different operating rules. I urge our legislators and executive branch to produce an advisory primer on doing business with Alaskan tribal entities. I urge all our citizens to be legitimately and intellectually curious about the sovereign nature of Alaska’s tribes and tribal consortia.

Mary Bishop has lived in Fairbanks and Interior Alaska villages for more than 50 years. During the 1980s and 1990s, she edited the Alaska Outdoor Council’s quarterly newsletter, and in that capacity became familiar with the issue of Indian country in Alaska.

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