Federal recognition of a tribe means that the federal government recognizes tribal sovereign powers and the right to certain services from the United States that are primarily delivered through the Bureau of Indian Affairs and Indian Health Service. Tribal recognition is a political classification and not a racial one, and is based in the fact that tribes were self-governing in America before immigrants came over from Europe. Federal recognition creates government-to-government relationships between the federal and tribal governments. The federal government formally recognized many tribes in the Lower 48 by making treaties with them. Since treaty-making with Indian tribes ended just a few years after Alaska was purchased from Russia, recognition of Alaska tribes took a different path.
Following ANCSA there was considerable debate and challenge as to whether or not ANCSA extinguished the status of the tribes in Alaska. The land settlement placed the land with profit-making Native corporations rather than with tribes, and Congressional findings in ANCSA specified that the settlement should be accomplished “…without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservations system or lengthy wardship or trusteeship, and without adding to the categories and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska.” The findings went on to say that the Act shall not diminish any federal obligations to protect and promote the rights or welfare of the Alaska Native people. Even though some of these findings indicated that tribal status was terminated, the Act did not expressly terminate tribal status. After the Act passed, tribal activity was relatively quiet during the 1970s, and was mostly expressed through tribal organizations receiving federal money to provide services through the Indian Self-Determination and Education Assistance Act of 1975.
The tribal sovereignty movement in Alaska picked up during the 1980s, as tribes became more active in asserting their existence and jurisdiction through their tribal governments and courts. Tribal court activity increased tremendously as a result of the Indian Child Welfare Act. Tribes that did not have constitutions under the Indian Reorganization Act (IRA) pursued them in hopes of confirming tribal recognition. Tribes published tribal alcohol ordinances in the Federal Register, asserting jurisdiction over alcohol issues. Tribes also brought cases pursuing their existence and jurisdiction in front of federal and state courts. Tribal leaders made active efforts to specifically include Alaska tribes in any federal legislation affecting tribes in the country. While tribes were asserting their existence and jurisdiction, the State of Alaska challenged the existence of tribes throughout the 1980s, even declaring that there were no tribes in Alaska except for Metlakatla in 1988 in an Alaska Supreme Court case called Stevens V. Alaska Management and Planning. On the federal front, tribal status was confusing because Alaska tribes were listed as “Alaska Native Entities” and included among Native corporations on the list of federally recognized tribes.
In the last days of President H. W. Bush’s term (January 11, 1993), the Department of Interior (DOI) issued an opinion that tribes do exist in Alaska, but ANCSA lands do not qualify as Indian country in a legal opinion titled: ‘Governmental Jurisdiction of Alaska Native Villages Over Land and Non-members.’ This opinion is also known as the ‘Sansonetti Opinion.’ President Bill Clinton replaced President Bush just days after the Sansonetti Opinion was issued. Clinton’s administration did not outright pull the Opinion but it did take a significant step toward resolving the vagueness of federal recognition of tribes the following fall. On October 21, 1993, during the term of Assistant Secretary of Indian Affairs Ada Deer, the Department of the Interior issued a list of tribes in the United States eligible for services from the Department. Previous DOI lists included Alaska tribes as tribal entities, which left the status of tribes unclear. The 1993 list named the Alaska villages recognized under ANCSA as tribes, and specifically stated that they have “all the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes.”
The lengthy preamble to the list explicitly stated that: “This list is published to clarify that the villages and regional tribes listed below are not simply eligible for services, or recognized as tribes for certain narrow purposes. Rather, they have the same governmental status as other federally acknowledged Indian tribes by virtue of their status as Indian tribes with a government-to-government relationship with the United States; are entitled to the same protection, immunities, and privileges as other acknowledged tribes; have the right, subject to general principles of Federal Indian law, to exercise the same inherent and delegated authorities available to other tribes; and are subject to the same limitations imposed by law on other tribes.” (Bureau of Indian Affairs, List of Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, Oct. 1993).
Congress specifically confirmed the validity of the Department of Interior list through passage of the Federally Recognized Indian Tribe List Act of 1994. The Act defines the term ‘Indian tribe’ as meaning any Indian or Alaska Native tribe that the Secretary of the Interior acknowledges to exist as an Indian tribe. The list is to be published by the Department of Interior annually and the Department cannot take a tribe off the list without an act of Congress. The only ways for a tribe not on the list to become federally recognized are through an act of Congress, a decision by a federal court, or by successfully going through the lengthy and expensive acknowledgement process established by Department of Interior regulation (25 CFR Part 83).
Although recognition of Indian tribes is a federal decision, state governors are in control of all the state agencies that interface with tribes such as the State Troopers, Office of Children’s Services, and Bureau of Vital Statistics. Tribes find more support for their governmental and judicial activities when state governors recognize and support them. In Alaska, tribal recognition by governors has varied widely. In 1990, Governor Steve Cowper issued Administrative Order 123, recognizing that there are tribes in Alaska, likely to be the same as those communities recognized in the Alaska Native Claims Settlement Act. The Order recognized the powers of tribes to be to regulate membership, to manage internal affairs of the tribe, and any powers delegated to tribes by the federal government such as through the Indian Child Welfare Act. The next Governor, Walter J. Hickel, rescinded the Administrative Order 123. He described Alaskans as ‘all one people,’ leaving no room for administrative recognition of a special political status for Alaska Native people. Gov. Tony Knowles, recognized the tribes through Administrative Order 186, and started a major project called the ‘Millennium Agreement’ which was meant to be “a framework for the establishment of lasting government-to-government relationships and an implementation procedure to assure that such relationships are constructive and meaningful and further enhance cooperation between the parties.”
The State of Alaska had come to accept that tribes, as sovereign governments exist in Alaska because the federal government had made it clear through the passage of the Tribal List Act of 1994, so the State turned its attention to challenging tribal jurisdiction. Governor Frank Murkowski ignored Administrative Order 186 and the Millennium Agreement and his administration issued an opinion through the Alaska Attorney General in 2004 that tribes cannot hear children’s cases or any other case in tribal court. During Governor Palin’s short time as governor, she continued to support that same opinion as did Governor Parnell who replaced her in 2009.
In 2017 Governor Walker requested a legal opinion for the Attorney General recognizing that Tribes do exist in Alaska, that they are governments with inherent sovereignty, but that there are areas remaining where the scope of tribal authority is not clear. Later in 2017 the State of Alaska promulgate the Alaska Child Welfare Compact, which among other things, recognized the inherent sovereign authority of tribal governments in Alaska in protecting their children.
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