Today Alaska Native tribes face one of their most difficult challenges since the days of the Alaska Native Claims Settlement Act (ANCSA). Ever since the United States Supreme Court ruled in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), that ANCSA largely extinguished “Indian country” in Alaska, and thus the tribes’ territorial jurisdiction, the extent of Alaska tribal sovereignty and authority has been shrouded in uncertainty.
In the context of a vigorous debate in which the extent and perhaps the very survival of Alaska tribal sovereignty is at stake, this Article offers: (1) an analysis of Alaska tribes’ current jurisdiction, including areas of uncertainty due to their unique status as “sovereigns without territorial reach”; and (2) a range of proposals designed to resolve those uncertainties and anomalies by at least partially restoring the “Indian country” status of, and thus tribal territorial jurisdiction over, some tribal lands in Alaska. Using rural justice and law enforcement as a central example, the authors demonstrate that restoring Indian country to Alaska would promote numerous public policy objectives, benefiting both the tribes and the State.
I. INTRODUCTION: TRIBAL STATUS AND JURISDICTION AT A CROSSROADS
Rural Alaska is one of the most dangerous places to live in the United States, in large part because of an alarming lack of adequate law enforcement and justice services.1 The state’s federally recognized tribes, the governments with an actual physical presence in rural Alaska, have been hamstrung in their attempts to assist in providing these services by doubts concerning their criminal jurisdiction. We propose that Congress remove these doubts by restoring the “Indian country” status of Alaska tribal lands, making them subject to concurrent state and tribal jurisdiction. This would benefit all rural residents, Native and non-Native alike, by enabling better provision of law enforcement as well as other services. As this Article will make clear, tribal sovereignty is part of the solution to rural Alaska’s problems, not the threat that some perceive.
A. The Assault on Alaska Tribal Sovereignty
Alaska tribes have reached a crossroads in their journey to protect their sovereignty and self-determination. In recent decades the tribes have been clearly recognized as sovereigns enjoying government-to government relationships with the United States, like those of tribes in the lower 48 states,2 but that status has been attacked for many years and continues to be threatened by several recent developments. The Secretary of the Interior’s authority to recognize Alaska Native villages as tribes has been challenged legally and politically.3 For instance, the State of Alaska recently has taken the position that Alaska tribes lack inherent sovereign authority over child protection matters.4 Additionally, Senator Ted Stevens, among others, has proposed that funding for programs and services for Alaska Natives be funneled through state agencies and large regional corporations rather than through tribes.5 These developments threaten to make local tribal governments largely irrelevant to the provision of funding and services to Natives in Alaska, and severely undermine tribal self-determination and the government-to-government relationship of Alaska tribes to the United States.
Bedeviled by contradictory pronouncements on their jurisdictional authority, and besieged by assaults on their tribal status, Alaska tribes face the threat of being swallowed up in “regionalization,” if not eliminated altogether. The regionalization debate has raised questions about the scope of tribal jurisdiction in Alaska, in which the territorial jurisdiction traditionally defined as “Indian country” is largely absent.6
This Article sketches the contours of Alaska tribal jurisdiction as it currently exists, points out areas of uncertainty, and proposes the reintroduction of a geographic component to Alaska tribal jurisdiction. Using rural justice and law enforcement as our central example, we argue that by (re)introducing “Indian country” in Alaska as a description of tribal territorial jurisdiction, Congress could eliminate many of the uncertainties that plague Alaska tribes, while improving the delivery of services to rural Alaskans, Native and non-Native alike.
