MITCHELL.CONV.FIN 12/09/97 9:52 AM Alaska v. Native Village of Venetie: Statutory Construction or Judicial Usurpation? Why History Counts DONALD CRAIG MITCHELL* This Article conducts a thorough review of the legislative history determining the sovereignty status of Alaska Natives and the exis- tence of “Indian country” in Alaska. The Article discusses con- gressional policies toward Alaska Natives from the time the Ter- ritory was first acquired up to the Alaska Native Claims Settlement Act Amendments passed by the 100th Congress. The Article highlights the various pieces of legislation that have influ- enced the sovereignty of Alaska Natives and the designation of “Indian country,” and describes the congressional intent behind this legislation, the executive branch’s application of this intent, and the judiciary’s interpretation of this intent. The Article culmi- nates in an analysis based on this legislative history of the Venetie I and II decisions and concludes that the Ninth Circuit has erred in finding the existence of Indian country in Alaska. I. INTRODUCTION [I]f you put one rock ahead of the other, pretty soon you’re across the stream. And many people, in my view, who sense that sovereignty is a huge issue are doing just that. They’re saying if this happened and if that happened and if that happened and if that happened we’ll have sovereignty.1 On November 20, 1996 a three-judge panel of the United Copyright © 1997 by Alaska Law Review * J.D., Hastings College of the Law, 1979. From 1977 through 1983, Mr. Mitchell was Washington, D.C., counsel, and then vice-president and general counsel, of the Alaska Federation of Natives. From 1984 through 1986, he served as counsel to Alaska Governor Bill Sheffield’s Task Force on Federal-State- Tribal Relations. Most recently, he is the author of SOLD AMERICA: THE STORY OF ALASKA NATIVES AND THEIR LAND, 1867-1959 (1997). 1. To Amend the Alaska Native Claims Settlement Act: Hearings on S. 2065 Be- fore the Subcomm. on Public Lands, Reserved Water and Resource Conservation of the Senate Comm. on Energy and Natural Resources, 99th Cong. 92 (1986) (statement of Morris Thompson, President, Doyon Limited) [hereinafter 1986 Sen- ate Hearings]. 353 MITCHELL.CONV.FIN 12/09/97 9:52 AM 354 ALASKA LAW REVIEW [Vol. 14:2 States Court of Appeals for the Ninth Circuit issued Alaska ex rel. Yukon Flats School District v. Native Village of Venetie Tribal Government (Venetie II).2 The facts underlying the dispute are unique. But if, as the prevailing counsel contends, the principles of law announced in Venetie II “apply to virtually all . Native vil- lages,”3 the application of those principles throughout Alaska will have monumental, and potentially society-altering, consequences for the future of the State of Alaska as a cohesive polity. In Venetie II, the circuit court first accepted the agreement of the parties (without deciding the question itself) that several hun- dred Gwich’in Indians who reside in two small villages located on the south side of the Brooks Mountain Range in north-central Alaska are a federally recognized Indian tribe whose governing body possesses inherent governmental authority.4 The court then held that Congress intended 1.8 million acres of fee title land sur- rounding the villages to be an area occupied by a “dependent In- dian community” and, hence, “Indian country,” within which the Alaska State Legislature has no criminal or civil jurisdiction, ex- cept in exceptional circumstances or to the extent explicitly granted by Congress.5 The State of Alaska petitioned the United States Supreme Court for certiorari; the Court granted the petition and will review Venetie II during its 1997 term.6 The outcome of that review will turn on the Court’s answers to esoteric questions of statutory con- struction. But like every lawsuit, Venetie II has a context. And that context must be understood for the Venetie II decision and its potential import to be understood. In brief, since the birth in 1983 of what in Alaska now is known as the Native sovereignty movement, the members of the movement and their attorneys have pursued an audacious objec- tive: the realignment by agency action and judicial fiat of Con- 2. 101 F.3d 1286 (9th Cir. 1996), cert. granted, 117 S. Ct. 2478 (1997). 3. Native American Rights Fund, Indian Country in Alaska: The Venetie Deci- sion, JUST., Spring 1997, at 1, 1 (announcing that the Venetie II holding “represents a complete and unqualified victory for tribes in Alaska. It eliminates the argument that ANCSA extinguished the territorial power of the tribes and, therefore, will ap- ply to virtually all other Native villages.”). 4. See Venetie II, 101 F.3d at 1300 n.6 (“[T]he [district] court held that Venetie qualifies as an Indian tribe. This holding is not challenged on appeal.”). 5. See id. at 1302; cf. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331-32 (1983) (holding that states can exercise authority over reservations only in “exceptional circumstances”); Seminole Tribe v. Butterworth, 658 F.2d 310, 312 (5th Cir. 1981) (“The [s]tates lack jurisdiction over Indian reservation activity until granted that authority by the federal government.”). 6. See Alaska ex rel. Yukon Flats Sch. Dist. v. Native Village of Venetie Tribal Gov’t, 117 S. Ct. 2478 (1997). MITCHELL.CONV.FIN 12/09/97 9:52 AM 1997] WHY HISTORY COUNTS 355 gress’s relationship with Alaska Natives into a configuration that approximates Congress’s relationship with members of federally recognized Indian tribes who reside on reservations in the coter- minous states. Over the past fourteen years, the pursuit of that objective has involved the adroit exploitation of “pro-Indian” sen- timent inside the Department of the Interior bureaucracy, a com- petently executed litigation strategy, and a purposeful rewriting of the history of Congress’s Alaska Native policy. The purposes of this article are, first, to correct the misconceptions about that his- tory on which the Venetie II court based its misconclusions of law, and, second, to describe the political process that culminated in the court’s blithe acceptance of those misconceptions. Parts II and III of this Article trace the early congressional policy and legislation concerning Alaska Natives. Part IV de- scribes the evolution of the definition of “Indian country” and its application to Alaska by Congress, the Department of the Interior, and the courts. Part V discusses the legislative history and intent of the Alaska Native Claims Settlement Act (“ANCSA”), followed by Part VI’s analysis of the influence of the Alaska native sover- eignty movement on the interpretation of ANCSA. Part VII de- scribes the evolving process by which tribal recognition by the ex- ecutive and judicial branches has occurred over time. Finally, Parts VIII and IX apply the information presented in the previous parts to analyze the court’s decisions in Venetie I and II. II. CONGRESS’S ALASKA NATIVE POLICY, 1867-1936 The analysis of Congress’s dealings with Native Americans begins with the Indian Commerce Clause of the United States Constitution, which grants Congress “Power . [t]o regulate [c]ommerce . with the Indian Tribes.”7 The clause grants Con- gress “plenary power to legislate in the field of Indian affairs.”8 In exercising that power, Congress may enact statutes that repudiate its earlier Indian policies,9 as well as statutes whose policy objec- tives are inconsistent10 or unjust.11 7. U.S. CONST. art. I, § 8, cl. 3. 8. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) (citing Morton v. Mancari, 417 U.S. 535, 551-52 (1974); FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 207-08 & nn.2-3 & 9-11 (Rennard Strickland & Charles F. Wilkinson eds., Michie 1982)). 9. See, e.g., In re Heff, 197 U.S. 488, 499 (1905) (confirming Congress’s author- ity to abandon dealing with Native Americans by negotiating treaties and to pursue a new Indian policy whose objective was “the breaking up of tribal relations”). 10. In 1854, for example, the Senate ratified a treaty that established a reserva- tion in Wisconsin for the “Menominee tribe of Indians.” Treaty with the Menomi- nee Indians, May 12, 1854, 10 Stat. 1064, 1064. In 1954, Congress abolished the MITCHELL.CONV.FIN 12/09/97 9:52 AM 356 ALASKA LAW REVIEW [Vol. 14:2 Congress initially exercised its plenary power to legislate in the field of Indian affairs to accomplish a single objective: the compelled clearing of the public domain of the Native Americans who occupied it. Congress accomplished that objective, first by the Senate ratifying treaties that recognized particular Native Ameri- can groups as political entities whose governing bodies were per- suaded, and, when persuasion failed, were compelled, to cede their members’ aboriginal title to vast tracts of land.12 Treaty-making opened the frontier for white settlement. But it did not physically clear the public domain of Native Americans. For that reason, in 1830 Congress delegated to the President the authority to relocate Native Americans who occupied land east of the Mississippi River to land located west of the river.13 When in the 1840s large numbers of whites began settling west of the river, the President and the Senate began negotiating and ratifying trea- ties that compelled land cessions west of the river and established reservations for the members of tribes whose governing bodies made the cessions.14 In 1871, Congress ordered the President to cease negotiating treaties.15 But with Congress’s approval, the President continued to negotiate land cessions and establish reser- vations.16 The army implemented Congress’s removal and reservation policies with a facinorous ruthlessness17 that continues to haunt the Menominee reservation and instructed the Secretary of the Interior to convey title to the land inside the reservation boundaries to a corporation organized under Wis- consin state law and in which tribal members were issued shares of stock.