Voices from the Flats – Alaska’s Third Rail of Politics
Put on your flame-retardant suit and get ready to grab the third rail of Alaska Politics -tribal sovereignty. Issues of race, and culture and the law are always prickly. Discussions can get heated, people can feel misunderstood and there is huge frustration on both sides of this issue. But NOT talking about sensitive topics usually leads to more of the above. If there were easy solutions, or solutions that guaranteed everyone would be happy, we’d have had them by now. But in the meantime, debate, discussion, and listening are critical to making progress happen, and this topic is one that constantly simmers. This piece does not necessarily reflect the opinion of the editors of the Mudflats, but we welcome the following op-ed from Donald Craig Mitchell, and we look forward to the productive and interesting discussion it will generate from all sides.
Sean Parnell Keeps Hands Off the Third Rail of Alaska Politics: Tribal Sovereignty
by Donald Craig Mitchell
Alaska is a month away from the 2010 gubernatorial primary election. But, to date, no candidate for Governor has said much of anything about one of the most important public policy issues the state faces. The issue is: what can and what should Alaskans of good will who don’t live there, and the Governor who leads us all, do about rural Alaska?
More than 100,000 Alaskans – more than half of whom are children – live in more than 200 communities in rural Alaska. A fifth of those 100,000 live in one of five regional centers – Bethel, Nome, Kotzebue, Barrow, and Dillingham. The other 80,000 live in smaller communities that range from Evansville (population 13) on the south side of the Brooks Mountain Range to Hooper Bay (population 1,158) on the coast of the Bering Sea. A majority, but by no means all, of those residents are descendants of Alaska’s indigenous Indian, Eskimo, and Aleut peoples.
In most of those rural communities – including the regional centers – other than federal and state government spending there is no cash economy that can provide even a modicum of the goods and services such as electricity, heating oil, snow machines, boats and motors, plasma TVs, and, most recently, access to the Internet that community residents have come to expect. Even more troubling, the statistics by which the health of a community is measured are what they were thirty years ago when I first began paying attention to them: awful. Alcohol and drug abuse, domestic violence, child sexual assault, school drop-out rates, diabetes, dental caries, teenage suicide rates. Pick a category and then find the statistic. The statistic will tell you that way too many of the human beings behind the numbers are in serious trouble.
In 2008 Kirk Wickersham, an attorney who has spent time in the bush, summed the situation quite well when he lamented in the Anchorage Daily News that
Billions of dollars and 37 years after the Alaska Native Claims Settlement Act (ANCSA), life in many small villages is still not viable. A village of 200 or 300 people, only half of whom are adults, cannot offer adequate education or health care. It can’t provide law enforcement or effective local government. There are few social services, minimal intervention for drug and alcohol abuse, domestic violence and sexual assault. Most villages are so small that food, fuel – anything shipped in – is unbelievably expensive. There are few jobs and no real prospects for the future.
Sean Parnell has been Governor of Alaska for a year now. What during that time has he had to say about rural Alaska other than the usual ritual platitudes? Zero. Nada. Goose egg. Nothing. And last Wednesday, July 21, Sean’s political pusillianimity made a difficult situation worse when the U.S. House of Representatives passed the Tribal Law and Order Act, which now is on its way to President Obama to be signed into law.
The behind-the-scenes story of Congress’s enactment of the Tribal Law and Order Act is indicative of why, not only for Governor Parnell, but also for Alaska Senators Lisa Murkowski and Mark Begich, rural policy is the third rail of Alaska politics that, if they can avoid doing so, none of them want to touch.
During the nineteenth century the Indian policy Congress implemented in the lower 48 states was to, in a treaty or a statute, designate a group of Native Americans as a “federally recognized tribe” and then confine the members of the group on a tract of federally-owned land designated as the group’s “reservation.” As federal law evolved, the law became that the government of a state within which an Indian reservation is located has no jurisdiction to enforce its civil or criminal laws unless Congress enacts a statute that grants the state government that authority.
In Alaska, Congress decided not to create “federally recognized tribes” and initially decided not to create reservations. Instead, in the 1884 Alaska Organic Act, Congress decreed that at all locations in Alaska, including rural communities that in 1971 Congress would designate as “Native villages” for the purposes of ANCSA, all residents of Alaska – both Native and non-Native – would be subject to the same civil and criminal laws.
That was the jurisdictional situation in 1891 when Alaska Territorial Governor Lyman Knapp advised Congress:
Since the passage of th[e Alaska Organic] Act, if not before, the courts assumed jurisdiction to try Indian offenders according to the laws of the United States, in no case allowing local customs among the tribes or native people to have any determining influence upon questions of punishment, as has ever been the case in the States where the tribal relation is recognized.
That was the jurisdictional situation in 1932 when Secretary of the Interior Ray Lyman Wilbur advised Congress:
In the United States statutes Alaska has never been regarded as Indian country. The United States has had no treaty relations with any of the aborigines of Alaska nor have they been recognized as the independent tribes with a government of their own. The individual native has always and everywhere in Alaska been subject to the white man’s law, both Federal and territorial, civil and criminal.
That was the jurisdictional situation in 1971 when Congress settled aboriginal land claims in Alaska by enacting ANCSA, which required Native residents of Native villages to organize business corporations under Alaska state law and directed the Secretary of the Interior to convey federal land to the corporations in fee title (which means that the use of the land is subject to Alaska state law).
And that was the jurisdictional situation in 1988 when, after reviewing the history of Congress’s Alaska Native-related enactments, in its decision in Native Village of Stevens v. A.M.P. the Alaska Supreme Court concluded:
In a series of enactments following the Treaty of Cession [in 1867] and extending into the first third of this century, Congress has demonstrated its intent that Alaska Native communities not be accorded sovereign tribal status. The historical accuracy of this conclusion was expressly recognized in the proviso to the Alaska Indian Reorganization Act [of 1936] . . .
No enactment subsequent to the Alaska Indian
Reorganization Act [of 1936] granted or
recognized tribal sovereign authority in Alaska.
Notwithstanding Congress’s repeated clear expression of its Alaska Native policy, early in the 1980s a group of mostly young Alaska Natives, and the half dozen attorneys who served them, decided that the intractable social and economic problems in rural Alaska somehow could be alleviated if the Native residents of each of the more than 200 communities that are Native villages for the purposes of ANCSA were designated as “federally recognized tribes” that, as a consequence of that legal status, were empowered to govern themselves without state interference. But rather than asking Congress to enact a statute that would confer tribal status (which they knew Alaska Senators Ted Stevens and Frank Murkowski would never allow Congress to do), the members of the group and their attorneys began asserting that, from time immemorial, Alaska Natives in ANCSA Native villages had always been members of “federally recognized tribes.”
When that assertion first was made I was general counsel for the Alaska Federation of Natives. So I can say based on personal knowledge that most of the leaders of the Alaska Native community with whom I dealt in those days were embarrassed by what became known as the Alaska Native sovereignty movement. But today, from Julie Kitka, the president of AFN, on down, every Alaska Native leader who wants to remain one publicly touts the Alaska Native sovereignty movement’s time immemorial party line.
Over the past twenty-five years the transformation inside the Alaska Native community of the Alaska Native tribal sovereignty movement from a fringe movement into a mainstream one whose legal basis and policy efficacy cannot be questioned slowly contorted Alaska politics into the configuration that, to advance his political career, Sean Parnell allowed the Alaska Native tribal sovereignty provisions that are buried in the Tribal Law and Order Act to be enacted into law with no public complaint.
How that happened is a story that began in 1993 when President Bill Clinton appointed a woman named Ada Deer as Assistant Secretary of the Interior for Indian Affairs. A former chairperson of the Native American Rights Fund (NARF), when she arrived at the Department of the Interior Ms. Deer began working under the public radar with attorneys in NARF’s Anchorage office to create more than 200 “federally recognized tribes” in Alaska simply by waving her wand. And at that year’s AFN convention she waved it when, with the convention delegates on their feet wildly applauding, Ms. Deer announced that henceforth each of them was a member of a “federally recognized tribe” because when she returned to Washington, D.C., she would publish a notice in the Federal Register that said that they were. When she returned to Washington, D.C., that’s what Ms. Deer did. And seventeen years later no federal court has ever decided whether Ms. Deer’s unilateral administrative action was lawful.
But I’m ahead of the story.
Since there now were more than 200 “federally recognized tribes” in Alaska because Ada Deer said there were, in 1994 the Department of Justice began handing out to the ersatz Alaska tribes the same tribal criminal justice grants that it had been handing out to real tribes such as the Navajo, the Blackfeet, and the Oglala Sioux to improve the administration of criminal justice on their reservations. What criminal laws were the Alaska tribes enforcing? What was the legal authority for the tribal councils’ enactment of those laws? Were individual Natives being arrested by tribal police officers? Being tried in tribal courts? Being incarcerated in tribal jails? No one knew.
The situation came to what I (wrongly) thought at the time was a head during the August 2003 congressional recess when while he was driving from Glennallen to Anchorage, Ted Stevens saw an SUV painted up like a police car with the symbol of the Chickaloon Indian Nation on the door parked on the side of the Glenn Highway and a Chickaloon Indian Nation “tribal police officer” giving the occupant of an automobile parked in front of the “police car” a speeding ticket. Chickaloon (population 277) is an ANCSA Native village located several miles north of the highway.
Several weeks later when I walked into Ted’s office in Washington, D.C., to attend a meeting about a commercial fishing bill, before the meeting began Ted began railing, “Don, he had a gun! The man was standing on the Glenn Highway with a gun! He was armed!” I had no idea what the Senator was talking about until he calmed down and told me about seeing the traffic stop.
As a consequence of the situation finally coming to Ted’s attention, on September 5, 2003 when the Senate Committee on Appropriations, of which Ted Stevens was chairman, reported that year’s Department of Justice appropriations bill, the bill contained a rider whose enactment would have prohibited the Department of Justice from giving out tribal justice grants in Alaska.
Alaska Native tribal sovereignty advocates’ response to the rider was to play the race card.
On September 24, 2003 Heather Kendall Miller, the head of NARF’s Anchorage office who today has been short-listed by her law school chum, Barack Obama, to be nominated to the seat on the U.S. Court of Appeals for the Ninth Circuit that Andy Kleinfeld is vacating even though she recently told First Alaskans Magazine that “I don’t particularly like the law,” publicly accused Ted of having employed a “stealth tactic” as part of his self-declared “war on tribalism.”
The next week when an Alaska reporter asked him about his rider Ted perorated that “the road they [i.e., Heather Kendall Miller and other Alaska Native tribal sovereignty advocates] are on now is the road to the destruction of statehood” because “they want to have total jurisdiction over anything that happens in a village without regard to state law and without regard to federal law.” He also reiterated that insofar as he was concerned, “We do not have sovereign tribes” in Alaska.
In response, Vernita Herdman, an Inupiat Eskimo from Unalakleet who at the time worked for the Rural Alaska Community Action Program, publicly called Ted a racist. And Heather Kendall Miller just as publicly backed up Vernita.
Two weeks later when the AFN Convention convened in Anchorage, Ted Stevens, who was in Washington, D.C., sent a videotape that was projected onto the fifteen-foot tall television screen on the wall next to the podium. Ted began his remarks by saying that he hoped the convention delegates would “listen to what I have to say and make up your own minds as to who is or is not a ‘racist’ in the dialogue about Alaska tribal issues.” After reviewing the accomplishments of his thirty-five years of service to the Alaska Native community, he then restated his view that Alaska Native tribal sovereignty was a
problem that developed because the former director of BIA, Ada Deer, decreed that every Alaska Native village was a tribe, leading many to assert there are now 231 Alaskan tribes. Some seek to have each Native village declared to be a sovereign tribe. They have sought courts, administrative tribunal support,and grants for many tribal government services.
Sovereignty advocates want each village to be a sovereign nation not subject to state law, not subject even to the jurisdiction of the federal courts. But that course of action cannot succeed.
Tribal sovereignty is not the answer to the problems Alaska Natives face. It merely brings authority to some, power to others, and legal fees to advocates that bring incessant litigation.
Ted finished by observing that:
I turn 80 next month. It has long been my hope
that our congressional delegation’s hard work
would create a ‘color and racial blind’ citizenry
in Alaska by now and I would enjoy the respect I
have tried to show each of you whether we agreed
or not.
Although Ted Stevens had seemingly held his ground, in the end he caved.
Two weeks after the AFN convention when the Senate Committee on Appropriations rolled its Department of Justice appropriations bill into a massive end-of-the-congressional-session omnibus appropriations bill, the rider that prohibited the Department of Justice from giving out tribal criminal justice grants in Alaska had disappeared, replaced by a provision that created a federally-funded Alaska Rural Justice and Law Enforcement Commission whose job would be to hold meetings at which the tribal justice situation in Alaska would be studied. In the meantime, the Department of Justice would continue to give out tribal criminal justice grants in Alaska.
Today, Ted Stevens is gone. But the Commission, to which over the past seven years hundreds of thousands of public dollars have been appropriated, continues on with a staff, an Anchorage office, and a website – www.akjusticecommission.org.
I have never asked Ted why he caved. But I think I know because one of the other things Ted told the delegates in his AFN convention speech was:
The resolution of the sovereignty issue is critical to Alaska’s future. A lot is at stake, and there are reasonable differences of opinion. But to be called a “racist” after more than 50 years of dedicated service to Alaskans, particularly Alaska Natives, is something I will not forget. It is a stain on my soul.
(my emphasis).
Based on that, my theory is that, even though in 2003 he was bullet-proof politically, upon private reflection Ted Stevens decided that he still had to prove to Vernita Herdman and Heather Kendall Miller that he was not a racist. In other words, playing the race card worked.
While Ted being race-baited into abandoning the rider that he knew was in the State of Alaska’s best interest was disappointing, I am wholly sympathetic to why Ted decided that he had to do it.
In 2005 when the Alaska Rural Justice and Law Enforcement Commission began meeting, Alaska Senator Gene Therriault, who at the time was president of the Alaska Senate, asked me to participate as the Alaska Legislature’s representative. When my participation was announced Commission member Ross Schaeffer, an Inupiat Eskimo from Kotzebue who was mayor of the Northwest Arctic Borough, resigned. When the Anchorage Daily News asked him why, Schaeffer answered: “Most of us Alaska Natives view Don Mitchell just like you non-Natives view the Ku Klux Klan. He’s anti-Native, and most of us don’t want anything to do with him.”
Unlike Ted Stevens, I was not an elected public official who periodically had to ask for Native votes. So I cared less what Ross Schaeffer, a racist jerk who not only had never spoken with me but had never met me, thought of me. So Schaeffer departed the Commission and I stayed. But that said, it was no fun having Schaeffer’s remarks reported as if they were true by the Anchorage Daily News on page A1 below the fold.
All of that is interesting, if arcane, history. But what does it have to do with Sean Parnell and the Tribal Law and Order Act? What it has to do with it is this:
At Pine Ridge and the Navajo and many other reservations on which the members of real “federally recognized tribes” reside in the lower forty-eight states the social and economic conditions are, in many of their particulars, worse than the conditions in Native villages in Alaska (which is one of the reasons I have never understood why Alaska Native sovereignty advocates believe that replicating the lower forty-eight-state Indian tribe model in Native villages will improve those conditions).
To improve the administration of criminal justice on Indian reservations, in April 2009 North Dakota Senator Byron Dorgan, the chairman of the Senate Committee on Indian Affairs, introduced S. 797, the Tribal Law and Order Act, a 96-page wish-list grab bag that contained every pro-Indian tribe amendment to every federal criminal justice statute that had ever crossed the mind of every Indian lobbyist on Capitol Hill.
The devil is always in the details. And the Alaska-related details in S. 797 were awful in that their enactment would put the 111th Congress on record as believing not only that there are more than 200 “federally recognized tribes” in Alaska, but, even worse, that those tribes had jurisdiction to enact and enforce their own criminal laws in and around Native villages.
For that reason, for the Governor of Alaska the policy choice should have been simple.
But in April 2009 when Senator Dorgan introduced S. 797, Sarah was Governor. By then her failed campaign for the vice-presidency had transformed Sarah into a rock star caliber celebrity who had little time for governing. And even before that happened, while she enjoyed being Governor, Sarah had had little interest in taking on the work that governing requires. So her disinterest in the adverse effect that Congress’s enactment of S. 797 might have on the State of Alaska’s exercise of its criminal jurisdiction in the bush was, to me, not surprising.
However, between July 26, 2009 when Sarah abdicated and June 23, 2010 when the Senate passed the Indian Tribal Law and Order Act, not only did Governor Parnell not inform the Senate Committee on Indian Affairs of his position on “federally recognized tribes” in Alaska and his position regarding tribal criminal jurisdiction, his failure to communicate was intentional. My pretty good guess as to why is that John Katz, who since 1979 has been every Governor of Alaska’s representative in Washington, D.C., advised Sean, who had little experience on Capitol Hill, to quietly communicate whatever his views on S. 797 were to Alaska Senators Lisa Murkowski and Mark Begich, and then leave it at that.
While that non-confrontational, out-of-the-public-eye approach was not a strident defense of the interests of the State of Alaska that Governor Parnell had sworn an oath to defend, the strategy, while classically Katzonian, was not irrational since Lisa is a member of the Senate Committee on Indian Affairs.
While that penny-wise-politically-pound-foolish approach has gotten Sean off the hook during an election year regarding a political issue that in 2003 had burned Ted Stevens, what John Katz knew as well as I knew it when he gave Governor Parnell that advice was that Lisa and Mark Begich already had rolled over on the Alaska Native tribal sovereignty issue.
When she was still an ersatz Senator who had been appointed by her father and knew that, to hold her seat, she would have to defeat former Alaska Governor Tony Knowles (who throughout his governorship had shamelessly pandered to the Native community), at the 2003 AFN convention Lisa had stood with Vernita Herdman and Heather Kendall Miller in their opposition to the Stevens rider that prohibited the Department of Justice from giving out tribal criminal justice grants in Alaska. According to the Anchorage Daily News, in an attempt to out-Tony Tony, when she spoke at the convention Lisa told the delegates that she opposed the Stevens rider because it would “abruptly terminate” the “only law enforcement presence in some tribal villages.” How she thought those “tribal villages” had acquired the legal authority to make and enforce their own criminal laws was a subject of which the Senator, who is an attorney by trade, made no mention.
Consistent with the superficial, but politically expedient, understanding of the situation she displayed at the 2003 AFN convention, it was no surprise to me six years later when Lisa signed on as a co-sponsor of S. 797. What was a surprise was that John Katz, who prides himself on being a seasoned Capitol Hill professional, would advise Sean Parnell that the way for him to defend the interests of the State of Alaska was to keep his head low and let Lisa handle it.
And advising Sean to depend on Mark Begich to defend the State’s interests rather than to do so publicly himself was even more ill-advised.
In the 2008 election Mark had snuck by Ted Stevens by 3,724 votes out of more than 315,000 cast only because he had been able to convince enough Native village voters to abandon Ted, who at the time was a convicted felon.
Having the new Senator in its political debt, last October at AFN’s 2009 convention AFN’s attorneys typed up an Alaska Native tribal sovereignty wish-list bill that they euphemistically named the Alaska Safe Family and Villages Act and whose enactment would, among other things adverse to the interests of the State of Alaska, create a new program inside the Department of the Interior “for the employment of Village Peace Officers by federally recognized tribes in Alaska Native villages.” When I asked Mark about the bill he told me: “I strongly support the Alaska Safe Families and Villages Act. I believe we should increase the role tribal courts play in Alaska and believe the best solutions for community problems come from the community itself. Tribal courts play an important role in justice in rural Alaska.”
Interestingly, it has been eight months since he told me that but Senator Begich still has not introduced the Alaska Safe Family and Villages Act in the Senate. Maybe because he understands that doing so will publicly expose him to criticism that to solidify his support with what for every statewide Democratic candidate is a core constituency he is willing to compromise the interests of the State of Alaska in order to advance what he hopes are his chances of being reelected in 2014. That may be an unfair conjecture. Or it may not be. In any case, given his genuflective support for whatever AFN throws across his transom, it also was no surprise to me when, like Lisa, Mark signed on as a co-sponsor of S. 797.
Since Governor Parnell intentionally refused to publicly engage the Senate Committee on Indian Affairs in the defense of the interests of the State government he heads, and then refused to public confront Senators Murkowski and Begich when people who work for him reported that the Alaska senators could not be counted upon, the Alaska-related provisions in the version of the Tribal Law and Order Act that is on its way to President Obama to be signed into law could be worse than they are.
There is one useful provision, section 407, which authorizes federal funding for the State of Alaska’s village public safety officer program. But subsection (d)(1) of section 407 then authorizes the Federal Law Enforcement Training Center to train not only village public safety officers, but also “tribal law enforcement officers.” That devil in the details provision puts the 111th Congress on record as believing that there are “federally recognized tribes” in Alaska that have authority to enact “tribal laws” that “tribal law enforcement officers” have authority to enforce. If Barack Obama does not nominate her for the open seat on the U.S. Court of Appeals for the Ninth Circuit for which she has been conniving and she stays at NARF – for Heather Kendall Miller that devil-in-the-details provision will prove quite useful in the next lawsuit she files against the State of Alaska. And if I turn out to be right about that, the people Alaskans should blame are Sean Parnell, Lisa Murkowski, and Mark Begich and in that order.
The Tribal Law and Order Act is riven with other potentially legally consequential devil-in-the-details Alaska-related provisions. But the Tribal Law and Order Act is a done deal. So why continue to make an issue of it?
The reason is that, like waves incessantly rolling onto the beach, there is a new provision making its way through Congress that for Governor Parnell presents the same political choices.
For reasons too convoluted to explain here, between 1912 and 1949 the President and the Secretary of the Interior established a handful of reservations for Alaska Natives (rather than for Alaska Native tribes) by executive and secretarial order. Tyonek on Cook Inlet, Venetie on the south side of the Brooks Mountain Range, and Karluk on Kodiak Island are the best known.
In 1971 when it settled Alaska Native land claims by enacting ANCSA, in section 2 of ANCSA Congress announced that henceforth there would be no “permanent racially defined institutions” and no “reservation system” in Alaska, and, to implement that policy decision, in section 19 of ANCSA Congress revoked all of the reservations that had been created by executive and secretarial order.
In 1934 Congress enacted the Indian Reorganization Act (IRA). In sections 5 and 19 of the IRA, Congress authorized the Secretary of the Interior to take title to whatever land he wished into trust for “any recognized Indian tribe now under Federal jurisdiction.”
Because ANCSA did not repeal the applicability of sections 5 and 19 of the IRA in Alaska, in 1978 the Athabascan Indian residents of Venetie, one of the birthplaces of the Alaska Native sovereignty movement, asked Secretary of the Interior Cecil Andrus to exercise his authority under section 5 of the IRA and take title to the land that had been inside the boundaries of the revoked Venetie reservation back into trust. In response to the request, Tom Fredericks, the Associate Solicitor of the Department of the Interior for Indian Affairs, issued a legal opinion in which he advised Secretary Andrus that, given Congress’s clear expression in ANCSA of its Alaska Native policy, it would be an abuse of discretion for the Secretary to exercise his section 5 authority “to restore the former Venetie Reserve to trust status.”
For the next twenty years that was the settled law, until 2001 when less than a week before George W. Bush was sworn into office as President the same attorneys in NARF’s Anchorage office who in 1993 had arranged for Ada Deer to wave her wand and create more than 200 “federally recognized tribes” in Alaska persuaded John Leshy, the outgoing Solicitor of the Department of the Interior, to rescind the 1978 Fredericks legal opinion. As a consequence, since 2001 the question of whether the Secretary of the Interior can use section 5 of the IRA to create new trust land reservations in Alaska (within which the State of Alaska will be divested of its jurisdiction except as otherwise authorized by Congress) has been an unsettled legal question.
Then in February 2009 the U.S. Supreme Court rocked the Native American world when, in a decision called Carcieri v. Salazar, the Court announced that in 1934 Congress intended section 5 of the IRA to mean what its text clearly says. And what the text says is that Congress delegated the Secretary of the Interior authority to take title to land into trust for a tribe only if that tribe was “recognized” and “under federal jurisdiction” on the date of enactment of the IRA, i.e., in 1934.
Since over the past thirty years Congress and the Secretary of the Interior have created a number of “federally recognized tribes” in the lower forty-eight states, many for the singular purpose of opening an Indian casino, and the Secretary has taken title to land into trust for those tribes, since the tribes were created after 1934 those land acquisitions were unlawful.
On Capitol Hill the Indian lobby’s response to the Carcieri decision was to have Senator Byron Dorgan, the sponsor of the Tribal Law and Order Act, introduce S. 1703, a bill whose enactment will authorize the Secretary of the Interior to take title to land into trust – i.e., to create reservations – for all “federally recognized tribes” without regard to the date that a particular tribe became one. At Senator Dorgan’s urging, last December the Committee on Indian Affairs reported S. 1703 to the Senate. But taking land into trust for the purpose of opening an Indian casino is a controversial enough subject in the Senate that that is as far toward enactment as S. 1703 is going to go.
But on Capitol Hill there are many ways to get from here to there. And with the 111th Congress now headed toward adjournment, on July 22 when the Interior, Environment, and Related Agencies subcommittee of the House Committee on Appropriations reported the FY 2011 Department of the Interior appropriations bill to the full committee, the Indian lobby arranged for Representative Tom Cole (R-Oklahoma) to plug a version of S. 1703 into the subcommittee’s bill as a rider.
What does that have to do with Alaska?
If, as I don’t think she did, in 1993 Ada Deer had the legal authority to wave her wand and create 200-plus “federally recognized tribes” in Alaska, since those tribes were created fifty-nine years after the IRA was enacted in 1934, as a consequence of the Carcieri decision Secretary of the Interior Ken Salazar has no authority pursuant to section 5 of the IRA to create Indian reservations in Alaska even if he wanted to. But if the Cole rider is enacted into law as part of the Department of the Interior Appropriations Act he will have the authority.
Last December when I asked him about S. 1703, Mark Begich told me: “I believe S. 1703 should pass, as it will resolve important issues for tribes in the Lower 48. This week Senator Dorgan [actually the Committee on Indian Affairs] will mark up S. 1703 and it will include language to ease some groups concerns with the effect on Alaska.” While the version of S. 1703 the Committee reported did, as Mark alluded that it would, include a proviso which states that the bill will not affect any federal statute other than the IRA – i.e., will not affect ANCSA, that leaves the legal question of whether Congress intended ANCSA to prohibit the Secretary of the Interior from taking land in Alaska into trust pursuant to section 5 of the IRA unresolved.
But the question can be resolved quite easily by simply inserting a sentence into the Cole rider that states explicitly that Congress prohibits the Secretary of the Interior from creating Indian reservations in Alaska. Period. Since Lisa Murkowski is a member of the Senate Committee on Appropriations, if she wants to insert a sentence like that in the Cole rider she can do so as easy as pie.
Will Lisa do so on her own? Based on the lengths to which she has gone since the 2003 AFN convention to keep her own hand off the third rail of Alaska politics by, unlike Ted Stevens, avoiding a public confrontation with AFN and Heather Kendall Miller, the answer is no. But what if Sean Parnell publicly asks her to because he tells her that as Governor of Alaska he believes that settling in the State of Alaska’s favor the legal ambiguity that NARF put Solicitor Leshy up to creating in 2001 is in the State of Alaska’s best interest?
Were that to happen, since Ethan Berkowitz and Hollis French, one of whom will be the Democratic candidate against whom Sean will compete in the November general election, both have signed on with the Alaska Native sovereignty movement since statewide Democratic candidates no longer have any choice except to do so, for us voyeurs, the situation this election year would get even more interesting than it already is. Should that happen, I’ll be the first to let you know.
I disagree with you about many many things here Mr Mitchell but am glad to see this out in the open…
Wow, this is confusing. I guess I’m not convinced that Don has made his case that local control of law enforcement is “against the best interest of the State of Alaska.” Just asserting that it is, doesn’t make it so, and he has not clearly explained the downside of the proposal. I do understand that the standing of the local “tribes” is not cemented in time immemorial, but only recently conferred and that perhaps was done illegally. That does not, however, make it morally wrong. Perhaps there is a new reality in the 21st century which supports the development of local rule and law enforcement. I don’t know, and as an outsider have no relevant opinion, only insomuch as it affects the body politic of all U.S. citizens. I’ll watch for more information on this subject.
What I do wish Gov. Parnell did acknowledge was the need for the villages to develop a system or systems of local employment, which probably has to be subsidized by the State and Federal governments. Infrastructure needs to be built or improved, including waste and sewage disposal, new energy options explored and developed, particularly bio-thermal and geo-thermal, roads can be regraded. The infamous intra-state natural gas pipeline needs to be resurrected. Incentives for teachers and doctors/medical personnel to provide services to the villages need to be increased, and the all-important broadband capabilities need to be expanded to rural Alaska.
Thanks, Don, for the thought-provoking article. Not agreeing with you, but open to ideas.
I personally find many of the comments in this article abhorent and borderline rascist. To dismiss the legality of a Native people with simple political calculation is akin to saying that those that fight for freedom have no legality. If this were Revolutionary America, I would suspect Mr. Mitchell would be a TORY, in the way he expresses his belief of superiority. Most interesting is how a “progressive” site such as MudFlats would print such….such….I digress and just close by saying in my honest opinion, in short, this “piece” is not in keeping with the spirit of progressivism. Rather, in my opinion, it’s an apologetic for someone who seemingly sees a superiority of one group of people over another.
It’s assimilation theory… not superiority…
Am happy to see this elephant-in -Alaska’s -front room out in the open even though I think Mr Mitchell is full of horsepunky.
Thank you AKM- for a forum to take some of this on in
I thought reading this would end my confusion. It hasn’t; the situation is too complex. I’ll read it again and see if I’m any clearer. No wonder the one Native Alaskan woman I know lives with the Lakota in SD! There, at least, most understand tribal politics (though very few like them much). Why must First Americans (or in this case, First Alaskans) always end up sucking hind teat? I have no idea how many tribes there are in Alaska, but 200 sounds like a ridiculous number to an Outsider. I plead ignorance, and am awaiting clarification from someone who knows what’s going on. This excellent attempt to explain it made my head spin.
Zyxomma-
go here and read…
http://www.mertzlaw.com/Native_Sovereignty.html
Mr Mitchell is a strict adherent to the idea of assimilation and his ideas are all filtered through that…
And remember you are reading one attorney’s take on the issues…
The number of tribes recognized in Alaska was an accomodation to the outfall of ANSCA in which each village is now called a tribe.
It is messy and ungainly and does much damage to the culture of First Alaskans but was all that was left to bulid on after ANSCA. In actuality , within the classic view of what constitutes a tribe, there are very few…
Within the legal framwork we live with there are over 200…
I just want to clear this up further. This op-ed does not necessarily reflect the opinion of any of the editors of The Mudflats. It opens a discussion, and it presents one side of the picture. I haven’t heard anyone discussing issues of tribal sovereignty at all, and I think we need to talk about it. I think it’s a good thing every once in a while to look at a side of the issue that we might find uncomfortable.
I don’t want people to think that just because they read something here that I’ve written, or Shannyn or Linda have written, or a guest contributor has written that it must be what they think too.
Mr. Mitchell has written quite a few Voices from the Flats pieces about Sarah Palin, and legal issues involving ethics complaints. That doesn’t mean that I agree with him about everything he says. But it also doesn’t mean that we shouldn’t talk about it. I’m hoping for civil dialogue and to hear from those with other points of view. I’m asking a big group of people “So, what do you think about THAT?”
I think a lot about it AKM
Gonna go find more info/links to broaden the scope of the conversation here…
Thanks AKPi! I and others will be looking forward to it.
I was just going to post almost the exact thing.I like it here because there are differencing views and civility at least most of the time.I agree we need both sides and it does not mean we agree with either.I went thru an indian reservation in the northern part of my state and the housing is just terrible or at least back then 20 years ago was.
Yes, excellent discussion opportunity.
Jeanne, I think theres a time and a place for such discussions. However, after all the anger, hatred, and discord unleashed on this state by the Tea Party and Right Wingers….this is not the time for a civil dialogue….because honestly, there’s no opposite response to Mr. Mitchell. Just because Mr. Mitchell wrote pieces going after Sarah Palin, does not justify his writing this diatribe. It’s your blog, but I honestly and politely disagree that now is the time to open this can of worms.
ArkInAk – I can see where it gets burdensome to have so much ‘unleashed’ at the same time, but is there really any way to prioritize the ugly?
Do we recognize there is malnutrition and then only focus on getting protein to some of the malnourished? Or, do we look at the whole body and focus on how we get it the protein, fat, carbs, and fiber it needs?
We can’t, I don’t think, be well-nourished (as a body or a nation), unless we ensure all aspects of ‘nutritional’ health are openly discussed and fairly addressed.
One thing (among many!) I’ve been particularily ‘proud of’ over the years about ‘libruls’, is that they tend to allow opposition/contrary views to be voiced; they tend to afford the opposition/contrary the courtesy of at least listening to those views of theirs (no matter how odd, whacked out, inane, etc., they might be.) If you never hear the ‘opposition’, all you hear is an echo of your own voice, no? beth.
http://www.alaskool.org/projects/native_gov/native_gov_indx.html
lots and lots of resources here…
http://www.alaskool.org/projects/ancsa/tcc/tcc_ancsa.htm
http://www.narf.org/
Lots to poke in here to understand NARF Mr Mitchell so disparages…
including links to Indian Law Library etc…
important, important info here!!!!!!!!!!!!!!!!!!!!!!!
http://justice.uaa.alaska.edu/rlinks/natives/ak_natives_sovereignty.html
http://www.alaskool.org/resources/anc2/ANC2_Sec5.html
A report which addresses some of the concerns Mr Mitchell ignores with his single culture mindset
http://www.abanet.org/irr/hr/spring06/case.html
majorly important and clear to read…
Thank you, AK Pi!
Ok- there’s a ton of stuff for folks to start poking around in…
Shannyn did a couple Moore-up-Norths -including one in which she interviewed Ms Kendall-Miller … Jan? Early Feb?
Good interview…
Thanks so much for the links, Alaska Pi. My head has stopped spinning under your tutelage! It’s still a complex and thorny issue, but I understand somewhat more.
I don’t know enough about Alaska Native issues to comment much on this, but as a native to Oklahoma (with roots in one of the five “civilized” tribes marched there in the 1830s courtesy of Andrew Jackson), one part of it did resonate with me:
“At Pine Ridge and the Navajo and many other reservations on which the members of real ‘federally recognized tribes’ reside in the lower forty-eight states the social and economic conditions are, in many of their particulars, worse than the conditions in Native villages in Alaska (which is one of the reasons I have never understood why Alaska Native sovereignty advocates believe that replicating the lower forty-eight-state Indian tribe model in Native villages will improve those conditions).”
It is true that in the reservations I’ve visited, especially prior to the advent of Indian casinos, economic conditions are, er, not good. In northeastern Oklahoma, before the oil got too difficult and expensive to extract, some tribes had money to spare, but for the most part it was no advantage to have any kind of tribal autonomy. In the time between the oil and the casinos, most people on the reservations were just poor. I’m not sure if it’s helped or hurt most of the groups to be federally recognized as tribes. I suspect the question is as complicated to answer in Alaska as it is in Oklahoma.
The knee jerk hostile responses to Mr. Mitchell are sad. It’s especially sad that within 2 comments somebody just comes out and calls him a racist. Voila! See how easily you commenters prove the point?
Look, this is difficult stuff. It’s not just a question of native Alaskans wanting sovereigntyand a ‘racist’ questioning its wisdom. There’s a Constitution, there’s Congress, and there are 130 years of laws to decipher. The reality — so sad, so true — is that those who have responsibility to make policy in this area, i.e., the politicians, don’t have the least bit of a clue what this history is. Lisa M. and Mark B. don’t. They bluff. They dodge. They pretend to understand it and then just make calculations for political gain.
This is what politicians do, so it shouldn’t surprise us, but this is not like a politician who doesn’t understand a tax bill and votes for it anyway. Why? Because lots of people understand taxes and it doesn’t take an attorney like Don Mitchell with 35 years of experience to explain it. The different sides compete, and it can be explained.
Who can say the same about sovereignty issues like those presented by Mitchell here?
It’s all very depressing.
Thank you for this, AKM, through controversy things become clear.
An excellent read:
“A Long and Terrible Shadow: White Values, and Native Rights in the Americas Since 1492” by Thomas Berger
“”real”" ‘federally recognized tribes’ reside in the lower forty-eight states…
.
..
…How she thought those “tribal villages” had “”acquired”" the legal authority
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MILSov. but he makes it sound like a bad thing. I got as far as that paragraph and got tired of being yelled at, so skipped right to the comment section.
Maybe it’s who you let.
Think I’ll take off that flame-retardant suit and look at some off AlaskaPi’s links…
but I’ll be back and read the rest
_________________________________________
…”"allowed”" the Alaska Native tribal sovereignty provisions that are buried in the Tribal Law and Order Act to be enacted into law “”with no public complaint.”"
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So, more than 200 Sovereign but some in the public don’t want to let them.
Yes.
Spot on.
Wow those little sparrows are ubiquitous! There was so much history and information here my head is spinning. I must reread.
Those little sparrows were borrowed from the link at the very bottom of the post subwaynut.com
I believe they’re from Prospect Park in Brooklyn. There are no house sparrows in Alaska.
But, I did like the idea of two sparrows sitting atop the third rail. Seems fitting somehow as a metaphor for the discussion.
Read these 2 distinct and different takes on issues with similar genesis…
They are very readable.
One is Mr Mitchell, without all the name dropping and personalities thrown in, and the other is a Mr Johnson…
Law is a living working project… issues surrounding sovereignty scare the shorts off a lot of folks but it’s not some rabble-rousery idea as Mr Mitchell seems to be trying to say
It has real meaning and consequences for all – all over America, Native or no…
http://www.law.duke.edu/shell/cite.pl?18+Alaska+L.+Rev.+1
http://www.law.duke.edu/shell/cite.pl?14+Alaska+L.+Rev.+353
A voice form totally outside and learning from reading – sorry Mr. Mitchell, but you do indeed sound VERY racist. Not once in your article do you explain WHY native tribes shouldn’t govern themselves, but paternalstically want Alaskan control .
Only in the convoluted world of the “sovereignty movement,” in Alaska and Outside, is questioning whether dividing up Americans based on their racial composition *itself* a “racist” position. The only thing racist in this entire discussion is the notion that tribes can exist based on race. The entire enterprise is a retrograde, un-American endeavor.
Come to think of it, Mr. Mitchell’s arguments sound very similar to those that backed continuance of slavery in the American antebellum South. “But Jasper – why do you want to leave the plantation, you get food and a cottage to sleep in and when you’s all growed up, I’ll e’en buy you a wife.”
Yeah, rondo, except you forgot the forty acres and a mule.
In general, I’ve found it one thing to report when you, yourself, have been called a pejorative; another thing, entirely, to call someone else a pejorative.
I find when a speaker calls someone else a pejorative, my respect for them as an authority and a person, greatly diminishes. Can’t help it; for me, personally, it has ever been thus. beth.
[see: discussion of Ross Schaeffer, above. b.]
Both the article and the responses show how difficult it is to take positions on this issue that are not lock-step in sync with one side or the other.
If someone wants to be nuanced, and say, Well, I agree with certain points from this side, but the other side really has valid concern when it comes to x,y, and z– that person will get hammered. No matter which side they offend. While emotions are high, and the weight of generations of history presses down here, it does not seem fair for people in the broader conversation “out there” to have to take that kind of risk. So people don’t. I can see why politicians will be the first in line to avoid this.
Yes. Well said. Where we are today is, well, where we are today, so the discussion about relationships between the tribes, ANCSA corporations, and state and federal government needs a refresh. Don Mitchell implies the direction of the discussion is constrained by past events and intentions. That won’t do. As you say, that kind of a discussion always ends up being nuanced. Our daily lives are not composed of policy discussions. Our daily lives are made up of conversations among our families and neighbors.
In closing, I think it is pretty arrogant for Mitchell to say that villages are not sustainable. Recently many of those kinds of statements have been made about Point Hope, in relationship to offshore oil exploration issues. Point Hope is the oldest continuously inhabited community on the North American continenet. If anything, Point Hope is even more stable today with two economies active side-by-side – a traditional non-market economy, and a cash-based market economy.
Good observations there.
Ah yes, it is rather interesting you describe Ted Stevens as “caved”, when it comes to the questioning of the legality of the Alaskan Native Tribes.
It was nice and rewarding to hear from Ted himself as to why he changed his mind about this. I would hardly consider it “caved”.
Don, I see you found another venue to spread your word as to western cultures legal or illegal acceptance of Alaska Native Tribes.
70 eh?
Well I still have that letter from you. Oddly it wasn’t the lust exposed within the sentences as to why I kept it these 30+ years, but the stationary it was written on that prompted me to keep it.
I am so sad folks were so put off by Mr Mitchell’s tone that discussion in this safe place which is Mudflats has faltered.
His tone IS off putting . Well, actually his tone torches my shorts.
Personally I say pffft! to putting Mr Stevens’ work for Alaska and Alaska Natives on a pedestal. Mr Stevens never met nor legislated a corporation he didn’t like. As Americans and Alaskans ,we would be wise to look carefully at how and what this view of conducting public business has done to Alaska. ANSCA lodged Native land under the for profit umbrella, Native peoples in groups as villages as non-profit or for profit corporations…I think there were good and bad things about that. As time goes on I think many of the bad things are more and more obvious, not the least of which is the stifling of Native communities within the confines of corporate structure and law.
Mr Mitchell’s argument is fundamentally that assimilation of all into a wider group benefits us most as a society. I personally think that argument fails on many levels but can’t quite get hold of a place to start on it.
ANSCA , which settled land claims between Alaska Natives and the federal government, was initially assumed by many to also settle/extinguish the trust responsibility the federal government has for indigenous groups. That idea seems to have turned on the notion that the responsibility resided entirely in the fed’s management of tribal lands and that since ownership of lands passed out of federal oversight under ANSCA the rest of the relationship was ended.
A series of federal actions and state cases reaffirmed the feds’ role in relations with tribal groups independent of property.
There’s a brief history of Alaska tribal status and courts in this historical perspective of tribal courts on the Native American Constitution and Law’s Project’s digitized website.
“Before the purchase of Alaska in 1867, tribes in the Lower 48 had already undergone a lengthy history of interaction with the federal government. Treaty making was the typical way tribes were recognized in the legal sense and how aboriginal land claims were ‘settled.’ Congress terminated treaty making with Indian tribes in 1871, long before large numbers of settlers came to Alaska, resulting in the fact that there are no treaties with Indian tribes in Alaska. One hundred years later, in 1971, aboriginal land claims for Alaska tribes were settled not by treaty, but in a unique way through the Alaska Native Claims Settlement Act (ANCSA). Although the Act settled aboriginal land claims, it left legal questions about tribal status, jurisdiction, and hunting and fishing rights.”
I would like to know what he bases his stance on Ms Deer’s certification of Alaskan tribes on…
Her decision has been upheld over and over contrary to what Mr Mitchell contends- from various entities, including Congress.
The stretch to deal with the outfall of ANSCA regarding tribal status HAS caused enormous problems for Alaska Natives, Alaska , and the fed but having to work harder to sort out what we are doing and how should not be seen as a reason to sit down and shut up.
Not mentioned at all by Mr Mitchell is the fear in many circles that sovereignty issues will reopen land issues and/or Indian Country issues,
be resolved against the state regarding education in the bush
and any number of day to day public policies might have to be readjusted.
because our current federal administration has vowed to honor the idea of parity, inherent in the term nation-to-nation, in it’s dealings with tribes. Parity at the table… equal standing, or something akin to it, for tribes in their dealings with the federal government…
This has created much hope within tribes across America . This appears to be the next step forward in a long series of at- least- two-steps-back-for-every-step-forward attempts to sort out self determination for tribal groups.
Oh horrors! Change!
For Americans Outside, we have a messy, messy situation which has no counterpart in the system of landed Native Americans- the reservation system, which is hard enough to understand. Alaska has a unique situation regarding tribes which make the whole thing very untidy, more than I can begin to point to.
Tribal sovereignty including nation-to-nation dealings is not a new idea or construct. There is a body of law going back to the beginnings of America flowing directly from the Constitution of the United States surrounding this idea and the set of issues it contains.Tribal sovereignty including nation-to-nation dealings is not a new idea or construct. There is a body of law going back to the beginnings of America flowing directly from the Constitution of the United States surrounding this idea and the set of issues it contains.
Do you think maybe Canada has done it all a little better? More respect for First Nations? And in turn, First Nations are more respectful to others in return?
There is, of course, no perfect way out of a former system where Natives were abused and their land rights taken away by newcomers.
However, none of us were around at the time–so we now must form our own best community as we know how.
The history of the planet is territorial–with plants, animals, people. No easy answers.
Thanks to all of you for the links. I will read them all. I do not have enough prior knowledge of this to comment, but will when I finish reading.
I did want to thank AKM for providing this forum.
I’m still having some trouble (make that great trouble) understanding the designation of “Tribe” in AK. Would it be akin to having designated the students at The University of Washington a tribe, the students at Yale University a tribe, and the students at Paris (TX) Junior College a tribe?
If I’m understanding it correctly, where you were at the time of the designation, determined what Tribe you were — in the college anology, irrespective of any *other* factors, you’d always (and only) be a Husky, Eli, or Dragon…each with its own campus, faculty, students, code of ethics, college traditions, etc.. As would your children and your children’s children.
IOW, the larger ‘affiliation’ (i.e. being an individual student among *all* college students with an entering gpa of 3.0, or who was raised Catholic, or who was not raised in the town where the college is located, and/or etc.) was immaterial — that you happened to be at that particular school when the designation was made, was THE factor, the *only* factor, used in determining the tribe to which you belonged. Do I have that right?
So, (back to the indigenous peoples) if your ‘bloodline’ was [predominently] Indian, Eskimo, or Aleut, that was *not* a factor; where you were (physically) living, was…for you and for your descendants. You, living in town X, were of the X tribe; your parents, living across the state in town Y, were of the Y tribe; and your sister, living 3 miles north of you in town A, was of the A tribe. Your sister’s children and your children, although first cousins by virtue of being next-generation direct descendants of the same set of grandparents, are of different tribes? Oy, my head hurts.
Am I understanding the tribal designation –how the tribes were determined– correctly? Tribal affilliation (and designation) of/for an individual was solely based on their residence at the time of the designation? Help, please! beth.
http://www.uaf.edu/anlc/
Classic definition of tribe is Aleut, Tlingit, Yup’ik…
Alaska tribal entities , under law, are ANSCA Native villages-
Village Council A, Traditional Council B, Village Council C,etc may all be Yup’ik peoples but under our current way of trying to figure out what to do since ANSCA in legal and public business that fundamental cultural connection is ignored.
Thanks, Alaska Pi, for the valiant attempt at educating this AK-born but Lower-48-living one; sad to say, it’s still as clear as mud to me. Drat! and Ugh!
Is there any ‘flow chart-ish’ something-or-other, somewhere, showing how the Tribal system/designation (ANSCA) is set up? …or is all too wibbly-wobbly to pin down in such a manner? beth.
[From what my mind's eye is seeing of the 'system' thus far, it's looking more than anything, like it was conceived by the highly imaginative and incredibly convoluted mind of Glenn Beck. And brought to life on his ever-ready chalkboard.
b.]
http://www.lbblawyers.com/1602.htm#c
Here are definitions under ANSCA for Native village, group etc. Remember these definitions were arrived at to settle land issues with the fed- see betel @35.They have NO thing to do with culture or race directly.
This was at the end of a long period of US termination policy towards Native peoples .
Shortly thereafter, 1975, a shift had occurred and the Indian Self Determination Act passed. This Act provided that native peoples could contract directly with the fed to provide their own services the fed used to provide through BIA- social and health services, education to some extent, some tribal justice functions, etc.
Alaska’s unique situation, before ANSCA (almost no legally recognized “Indian Country” ) and after ( no central entities in the classic notion of tribe) made trying to do this difficult. It is all rather convoluted but in the end each village which met federal recognition standards was recognized as a tribe.
Does that help at all?
It is untidy and messy to unravel the legal reasoning because each law from Congress only addresses some piece of something yet builds on definitions arrived at in another oft times.
Thanks for the link, Alaska Pi. “They” sure did make a mish-mash of things, didn’t they? And it appears as if none of these issues will be settled any time real soon…mainly because the very foundations of the ‘designations’ were so poorly constructed in the first place.
Maybe the state of AK should give Glenn and his chalkboard a whack at it…if he can (and he does!) take the completely sane and, with his swirly-line-drawing chalk, turn it into some totally incomprehensible head-scratcher, surely he can take some totally incomprehensible head-scratcher and work some ‘reverse’ magic on it? Hey, it’s a thought… beth.
Thank you Anna, I grew up in NE OK, and yes the issues are hugely complex. Even well-meaning attempts to protect or preserve the rights of native tribes and individuals have over time proved disasterous.
Really the only tribe that benefited economically (that I’m aware of) from the oil boom were the Osage, who through a unique history had actually bought their tribal land from the Cherokee before allotment and had reserved mineral rights of all that land to the tribe itself – to this day, individual Osage own “head-rights” which are similar to shares in the Alaska native corporations (as far as I understand), even after the surface land had been alloted to individuals. Now, back in the twenties these individuals were suddenly the richest people on the planet with the discovery and development of oil fields on their land. Similar to Kuwait in more modern times.
So what happened next was that a lot of white people started getting themselves appointed guardians of Osage individuals – who were deemed too ignorant or incompetent to take care of their own money. And these wards were killed off in what was called “The Osage Reign of Terror” – leaving their white guardians with the oil money. The journalist Dennis McAuliffe wrote about his investigation into his own family’s history during this shameful time in this book (which has appeared under a couple of different titles):
http://search.barnesandnoble.com/The-Deaths-of-Sybil-Bolton/Dennis-McAuliffe/e/9780812921502
Another issue is the lack of protection for women who are victims of violence when jurisdictional issues hinder law enforcement and prosecution due to byzantine laws and procedures between state, federal, and tribal authorities. Sometimes it is not just where but who the victim is, who the perpetrator is, that determines which entity has authority. When you throw in economic factors, the outcome for native women is pretty horrific.
Don’t get me started on the whole casino culture which has brought to the fore a whole slew of battles about who is really a member of what tribe (did you know that the Cherokee nation recently kicked out the Black Cherokee – persons descended from slaves who had been owned and or adopted into the tribe? Or that the Lenape or Delaware, who were administratively made part of the completely unrelated Cherokee tribe back in the 1800s, have been stymied in their attempts to separate in large part because they would be economic competitors if they opened their own casinos?
I’m not an expert on any of this by any means. Just want to point out that the issues can be whole lot more complicated than just race or local control of issues or who owns the resources, and that it is wise to not jump to conclusions about what the problems are, much less the solutions.
Smart comments. .
Don Mitchell’s essay is incomplete in at least one important regard: Venetie. The village of Venetie had one of the stronger claims that it was a sovereign entity. When it tried to impose a tax, the State of Alaska sued in U.S. District Court, seeking to permanent bar Venetie from attempting to impose taxes on State activities. (Ironically, the activity at issue in Venetie was construction of a school.)
The case went all the way to the U.S. Supreme Court. You can read the 1998 decision at
http://fedbbs.access.gpo.gov/library/sc_97/r029pzs.pdf
Any informed discussion of tribal sovereignty has to include discussion of the Venetie case.
What’s the theory? Mitchell didn’t *know* about Venetie? That a blog post should mention every single case? Come on. I think Mitchell even filed amicus briefs in that case. Can’t remember.
Henry, we could talk about the history of racisim in America without mentioning Plessy v. Ferguson (approving “separate but equal”) but it wouldn’t be a very informed conversation.
The SCOTUS held in Venetie that the Alaska Native group with the strongest claim didn’t qualify as a “tribe.” Among other things, the SCOTUS found that ANCSA settled claims of “Indian lands.” It specifically held, “ANCSA lands were set apart for the use of the Neets’aii Gwich’in, “as such,” by their acquisition pursuant to § 1618(b) is that ANCSA transferred reservation lands to private, state-chartered Native corporations, without any restraints on alienation or significant use restrictions, and with the goal of avoiding “any permanent racially defined institutions, rights, privileges, or obligations,” § 1601(b)”
Don’t get me started on the whole casino culture which has brought to the fore a whole slew of battles about who is really a member of what tribe (did you know that the Cherokee nation recently kicked out the Black Cherokee – persons descended from slaves who had been owned and or adopted into the tribe?
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i thank you Ghostbuster…black people will never forgive this insult. through my grandfather on my mother’s side i have blood ties to the Seninole people. many folks don’t know the history of the Seminole wars in which Black Indians fought alongside natives in the longest war ever against the U.S. government. i promised my ancestors that i will never spend one thin dime in any Indian casino. as for the Cherokee Nation who betrayed their blood i have nothing but contempt. i hope that those Black Cherokees win their suit in court and bankrupt those casinos in Oklahoma. shame be forever.upon them and all that is theirs.
One State in which common law is applied to all things.
Anything less is retarded. Not racist. Retarded.
Of what benefit could it ever be to a society living together inside of one border to have 200+ sovereign nations; each with their own version of law, inside of the boundaries of this State?
That situation guarantees people will be harmed with no “right” to address the harm and is in fact precisely the situation now. There are multiple examples of one village or tribal member being affected by another “tribes” decision especially when it comes to children of mixed marriages. (one tribe marrying into another tribe)
Many non native people in Alaska are feeling or have felt the oppression by tribes and tribal members who do wrong then hide behind the veil of sovereign immunity claiming common law does not apply to them.
Do tribes have a right to hire or contract with non tribal people or companies and then avoid state and federal wage and hour law or contract law because they are immune from jurisdiction?
Do tribal members have a right to Alaska permanent fund dividends?
One rule of law seems both appropriate and necessary in Alaska.
What is to prevent one “tribe” from taking land or claiming ownership to land from another tribe…which is already happening by the way. And guess what…they use the courts and common law to fight amongst each other. Hypocrisy. You bet-cha.
Or, what is to prevent a well armed and tactical group of people from conquering a tribe?
Does the State or Federal Government have a right and would they assert that right if there is one and interfere with two countries at war over child custody or land or fish or game going on within the boundaries of the SOA?….ohhh yah sure forgot…the long list of interventions in foreign nations divided by those claiming “sovereign or historical cultural” rights is the US Governments M>O. But…maybe not in Alaska…Alaska being so different and all.
How preposterous to argue that we are all one people who should live under the rule of law and that dividing up Americans based on racial composition is retrograde.
If I hear one more non-Native say that this is a can of worms, I’m going to scream. Now we are not only a can of worms, we’re complex….controversial…..we musn’t bring this up because the Tea Party has spewed enough hate. What a clever excuse to keep Alaska Natives quiet over the most vital issue ever faced. How small of Lisa Murkowski, et al to keep us Out Of Sight, Out of Mind.
What a clever ruse to “acquire” the land and its resources: just ignore Natives to death after denial of basic human and civil rights. Yes, those rights. The same ones born in Dumbarken Oaks Chaired by the great Eleanor Roosevelt. Our rights are not complex. They are basic. What do you do when your children and you are hungry? You eat. Off the land and water. All wild, renewable resources were abundant upon “contact.” Those resources are disappering under state management with the approval or eye winking of “Christian” sports hunters. (And who shall not steal? Kill? Covet? Bear False Witness?)
Of course Don Mitchell will bring up Heather Kendal and Vernita Herdman. They not only oppose Sovereignty, but battled to quash and usurp our rights, in the name of We The People, to give Tony Knowles a live political event. They refused to bring up Subsistence, the Murders of Native Women and the Paint Ball Victims, let alone our rights. Patti Higgens, the Democrat Bigshot du jour, insisted on this. These are not Tribal Sovereignty Advocates by any means. Heather Kendall could have won the Venetie Case. She didn’t.
I’ve met every kind of Native known: New Wave Natives, Last Minute Natives, State Natives, Lost Natives, Sell Out Natives, Safe Natives and the latest kind: Pet Natives. These are “allowed” at their events, given a moment to speak before the group gets down to “real issues.” The democrats had one during Begich’s campaign. None of them had the courage or honesty to inform their latest pet that running for office was not in the best interest of Alaskans or herself.
This article only proves that apartheid and colonialism are alive and well in Alaska yoked and stoked by cultural, political and economic genocide.
I don’t believe Shannyn Moore has the courage to invite real Tribal Sovereignty Advocates on her show. She hasn’t the knowledge either. Just controversial cans of worms sitting on another “Third Rail.”
This is not a can of worms, neighbor. Please keep speaking.
Here is a little about my street in south Anchorage. Twenty-two households on a steet ending in a circle. 10 Anglo, 2 Alaska Native/Anglo, 5 Korean, 1 Chinese, 1 Nepalese, 1 Lebanese/Turkish, 2 Phillipino/Anglo. One of the Anglo households is a flamer recently moved in from the Valley with a “Joe Miller” sign in the yard, now being ostracized by most. The rest get along, talk, share garage sales, sell and buy Boy Scout and Girl Scout cookies, take salmon to one another, and largely enjoy each others’ company, I believe. Music played by hands comes from many windows in the evenings. Many of the families have parties on the weekends, which look and sound fun. This is the setting I have known every day for many recent years. in this neighborhood, I think most families will listen to you, if they are not already, and the one who won’t advertises it, so no loss. Our street is so much not the Anchorage I remember from the early 70s, and the change is for the better. So, please keep speaking.
Polar Bear, some years ago someone asked, ” If you were standing in a room and someone dumps a full honey bucket on you over and over again and you were up to your nose with raw sewage and one more bucket would bring you under, what would you do?”
Simple. You don’t take that raw sewage anymore.
Agreed. It is a matter of basic human dignity.
“I don’t believe Shannyn Moore has the courage to invite real Tribal Sovereignty Advocates on her show.” – Desa Jacobsson @32
It strikes me that what one person defines as “THE real advocate for [anything]” might not necessarily be what a person who is *part of* the larger [anything] might define as “THE real advocate.” Is Franklin Graham THE real advocate for *all* Evangelicals? Jesse Jackson THE real advocate for *all* black peoples? FOX News THE real advocate for *all* newscasters/programs?
Also, and too, within *any* group, there is always going to be a more ‘radical’ element — I don’t pass judgement on their, shall I call it, ‘devotion’. I do, however, know that there is a *huge* difference between:
1) advocating for a cause with reason, logic, calm, tempered sharing, and thoughtful presentation, and
2) ADVOCATING for a cause through IN-YOUR-FACE, ball-peen hammer tactics.
Just because someone is *passionate* about something, does not necessarily make them the *best possible* advocate for it; on the contrary, with their intently-focused passion, they often are the *least* affective (and effective) advocates [for the group as an *entirety*]. Leastwise, that’s the way I see it. beth.
Look up the word advocate. All effective advocacy is based on truth. Don Mitchell, Heather Kendall and Vernita Herdman are sadly lacking.
Your number (1) one assertion above is another clever way to keep us quiet. Vernita Herdman advocated “quiet diplomacy” while acting as a shill for Knowles during the subsistence issue.
Beth, Alaska Natives do not need your permission, approval or opinion to do the right thing.
And don’t try it. We’re privvy to these old democratic tricks. Republican ones too.
Desa – I’m sorry you took so negatively what I wrote. I was expressing an absolute truth I have learned over many, many years of MY advocacy for persons who have systematically (and institutionally) been denied the rights and privileges others are afforded without question.
It’s impossible to knock the chip off of someone else’s shoulder when you’re weighed down with chips on your own; addressing an issue combatively inevitably begets resistance and combat right back. Mohandas K. Gandhi and Martin Luther King, Jr., among others, knew that; they took the higher road, they met ugly with calm and purpose, and they prevailed. And that, Desa, is a valuable, valuable lesson to learn.
I do not pretend to know the personalities –on either ’side’– involved in the issues of Native Rights in AK, I do, however, know that when folks start yammering and yelling at each other in demand for (or against) things, the ‘target’s’ ears close, nothing is heard, and the fortifications against the onslaught are reinforced.
If you want to be a voice, you have to at least present the truth you are saying in a manner that can be heard! I stand by what I wrote @ 32.2. beth.
I do not need you to preach to me about Ghandi or King.
I live here. I’ve seen the victims. And those who collaborate with them.
Desa – I believe you are entirely missing the point. While you may live in AK, and while you may have “seen the victims. And those who collaborate with them,” it doesn’t seem as if you are understanding that *nothing* will be accomplished FOR those you want to have given respect, IF the request [demand] isn’t heard.
And, it will, gurandamnteed, *not*, be heard if it is presented as a bull-dozer. Human nature won’t ‘allow’ it [nor will the egos and pride of those who are being 'bulldozed', allow for it to be heard].
The reason Ghandhi, King, et. al, were able to change opinions [win], is that they took fundamental truth and presented it in a calm, rational, logical, consistently steady, honest and open manner. Had they tried to bulldoze their opinions across, they, too, would have failed. Trying to sway fanatic by countering it with ‘opposing’ fanatic, gets nowhere.
I may be misreading what you’ve written, here, Desa, but my impression is that you are of the opinion that strident and ‘revolutionary’ tactics MUST be used to bring about the change you seek. If how I’m interpreting what I’m reading is the case, I have a feeling you’re going to terribly disappointed –for a loooong time– that you are [still!] aren’t making inroads into getting things changed; if I’m not reading what you’ve written ‘correctly’, my apologies.
I’m *not* ‘preaching’ anything at you, Desa; but time, I think, will prove me correct on the difference between fighting for a just cause with sanity, and fighting for it with reciprocal insanity. One works; the other fails. Just sayin’. beth.
Mitchell: “Several weeks later when I walked into Ted’s office in Washington, D.C., to attend a meeting about a commercial fishing bill, before the meeting began Ted began railing, “Don, he had a gun! The man was standing on the Glenn Highway with a gun! He was armed!”
This vignette makes me laugh…..and not pleasantly either. Who really has the guns? Who has the rights to stalk around with semi-automatics on their hips talking smack about “Second Amendment Remedies” these days …..and in the past?
I know my comment may seem somewhat off the main topic, but it’s really not. It’s about power, and who gets to wield it with the public’s (and government’s) blessing.
“Guns, Germs, and Steel: The Fates of Human Societies” (by Jared Diamond)…..as relevant to the discussion as any secondary (in my opinion) legalese.
Ignoring the entire Native vs. non-Native issue, I’m more concerned about the overall viability of 200 tiny isolated villages and the people who live in them. Is there any other state or country in the developed world with so many completely isolated villages? What kind of economic and educational future can children growing up in those villages expect, and how will they compete with the best and the brightest of China, India, Japan, and other countries in this globalized economy?
In most cultures there is a natural tendency to move where the resources and opportunities are greatest. In earlier days that may have meant following caribou or salmon or some other resource, but those days are gone. Like it or not, the resources and opportunities are now in larger communities. If a particular group of people and its culture are to survive they will have to fall back on these historic patterns and move to where they have the best chance to succeed.
Lesgood, this has been a position of many who want to “acquire” our land and resources: create a false environment and conclude that it’s best for Natives to leave the land in search of a better life. If it wasn’t so serious, it would be down right comical. And…. it’s a clever way to steal. Clever. You shouldn’t fall for that. We didn’t.
It should be mentioned that ANSCA wasn’t passed because Ted Stevens cared so much about the Native people of Alaska. It was passed so the pipeline could be built.
It was a hurry-it-up bill that did not even take into consideration provisions for offspring of Native people.
I was living in a village during that time and remember very well how the government established blood percentages. They gathered “leaders” of the village who orally expressed their opinion and that became law. Many people were disenfranchised over petty village politics. (same thing with commercial fishing permits, but, that’s another story)
Quite frankly, I think ANSCA was a huge farce legislated to benefit corporations.
I will not get started on the BIA and what they have done to Native Americans in this country. From not paying for oil rights to disenfranchising children through their “formulas,” they do not have a record of which to be proud.
The Native corporations were invaded by lawyers & bankers by people like Frank Murkowski who made huge bundles of money with no benefit to Native Alaskans.
Having spent time on reservations in Arizona and New Mexico, and having experienced living in rural Alaska, I beg to differ that the villages in Alaska have it easier than people on the reservation.
Casinos have made a positive impact for many tribes. Quite frankly, I quite enjoy seeing all those old white folks leaving their pension money there.
“Ms. Deer began working under the public radar with attorneys in NARF’s Anchorage office to create more than 200 “federally recognized tribes” in Alaska simply by waving her wand.”
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Waving her wand?……Dismissive metaphor.
Which “wand” was waved by Andrew Jackson in 1830?…….”Nunna daul Tsuny” (1838).
Any debate about tribal sovereignty should have the beating heart of history pounding through it to counter the hubris of lawyers, politicians, (and business interests) who create policy on Native issues.
Here are a few voices from the past which won’t directly solve Alaskan rural issues, but they do address the hubris I’m hearing:
“Where today are the Pequot? Where are the Narragansett, the Mohican, the Pokanoket, and many other once powerful tribes of our people? They have vanished before the avarice and the oppression of the White Man, as snow before a summer sun.
“Will we let ourselves be destroyed in our turn without a struggle, give up our homes, our country bequeathed to us by the Great Spirit, the graves of our dead and everything that is dear and sacred to us? I know you will cry with me, ‘Never! Never!’”
…Tecumseh (Shawnee)
“We did not ask you white men to come here. The Great Spirit gave us this country as a home. You had yours. We did not interfere with you. The Great Spirit gave us plenty of land to live on, and buffalo, deer, antelope and other game. But you have come here, you are taking my land from me, you are killing off our game, so it is hard for us to live. Now, you tell us to work for a living, but the Great Spirit did not make us to work, but to live by hunting. You white men can work if you want to. We do not interfere with you, and again you say why do you not become civilized? We do not want your civilization! We would live as our fathers did, and their fathers before them.”
…Crazy Horse – Sioux
“The white people, who are trying to make us over into their image, they want us to be what they call “assimilated,” bringing the Indians into the mainstream and destroying our own way of life and our own cultural patterns. They believe we should be contented like those whose concept of happiness is materialistic and greedy, which is very different from our way.
We want freedom from the white man rather than to be integrated. We don’t want any part of the establishment, we want to be free to raise our children in our religion, in our ways, to be able to hunt and fish and live in peace. We don’t want power, we don’t want to be congressmen, or bankers….we want to be ourselves. We want to have our heritage, because we are the owners of this land and because we belong here.
The white man says, there is freedom and justice for all. We have had “freedom and justice,” and that is why we have been almost exterminated. We shall not forget this.”
…From the 1927 Grand Council of American Indians
Read both of your posts, and believe your comments need acknowledgement. I just feel it is important for you to know that non-Natives, in my case an Anglo, are reading and listening. This note is just to say, “I hear you” and hope that you continue to post. I cannot say much positive about the political conversation swirling around us all right now, only that based on our changing racial and cultural composition, I think my own neighborhood is getting healthier on an interpersonal level. I see signs close around me that neighbors of strongly different cultural backgrounds are connecting and listening to one another. And I think the civility of Mudflats helps. Who knows, perhaps blogs will help us all.
Hollis French said he would fully fund the ferry system and carefully review projects so that they would not harm wild fish stocks.
That’s good for rural Alaska!!
Oh, and Senate candidate Scott McAdams is Mayor of Sitka and Alaska Native. He’s the credible candidate who is going to take Lisa Murkowski’s seat away from her.
That also would be one good choice.
Support Scott’s campaign:
http://scottmcadams.org
I think this is an important issue that needs to be answered by anyone running for governor of Alaska! The governor needs to take care of the entire state not just certain parts, and the rural parts is still considered Alaska.
Correction: For the sake of accuracy, my mistake. Scott McAdams seems like he is an Alaska Native, is Mayor of a rural community that is strongly Alaskan Native, and has been adopted into Alaska Native, but is not actually Alaska Native.
He has corrected me on this. Is making no false claims. My error solely.