The Routledge Companion to Native American Literature (original) (raw)

Alaska Native Sovereignty: The Limits of the Tribe-Indian Country Test

Cornell International Law Journal, 1984

Analysis of Indian law requires an understanding of specific terms. The term "Indian" has no uniform definition. It varies from tribe to tribe and from statute to statute. For example, the Indian Reorganization Act defines "Indian" to mean a person of one half or more Indian blood, but does not require tribal affiliation. 25 U.S.C. § 479 (1982). The Indian Self-Determination and Education Assistance Act, however, requires membership in a tribe. Indian Self-Determination Assistance Act of 1975, 25 U.S.C. § 450b(a) (1982). "Indian country" is an Indian reservation, a dependent Indian community, or an Indian allotment. 18 U.S.C. § 1151 (1982). "Indian reservation" has no statutory definition, but the modem meaning refers to land set aside under federal protection for residence of tribal Indians. See F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 34 (1982 ed.) [hereinafter cited as F. COHEN, 1982 ed.]. "Indian sovereignty" refers to powers of self-government retained by Indian tribes and neither explicitly limited by treaty or federal statute nor inherently inconsistent with the federal-tribe relationship. See infra text accompanying notes 7-18. Chief Justice Marshall characterized Indian tribes as "domestic dependent nations" whose relation "to the United States resembles that of a ward to his guardian." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). Thus, Indian sovereignty paradoxically depends on the federal government. Because Indian sovereignty can be limited by treaty or federal statute, it is characterized as "limited sovereignty." Indian sovereignty is also characterized as "inherent" and "retained," because it consists of the original and remaining powers of self-government. See F. COHEN, 1982 ed., supra, at 235. "Indian tribe" does not have a uniform legal definition. The Bureau of Indian Affairs, however, relies upon the definition in Montoya v. United States, 180 U.S. 261 (1901). "By a 'tribe' we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes illdefined territory.. . ." Id. at 266. See infra text accompanying notes 22-25. 2. Alaska Native Claims Settlement Act [ANCSA], Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified as amended at 43 U.S.C. § § 1601-1628 (1982)). See infra note 73 and accompanying text. 3. The most important general principle in American Indian law is inherent sovereignty. It holds that Indian tribes retain inherent powers of self-government that are not explicitly limited by the federal government. See infra text accompanying notes 10-18. See generally F. COHEN, 1982 ed., supra note 1, at 232-41 (discussing the nature of tribal powers). 4. See infra notes 78, 113-15 and accompanying text. [Vol. 17:375 ALASKA NATIVE SOVEREIGNTY tion of international law. 8 The United States continued this pattern of diplomacy, thus recognizing the tribes as sovereigns. 9 Tribal sovereignty, however, is subordinate to the sovereignty of the United States. 10 Chief Justice Marshall addressed the paradox of a subordinate sovereign in Cherokee Nation v. Georgia" and Worcester v. Georgia. 12 In Cherokee Nation, Marshall portrayed the tribes as "domestic dependent nations" having a "relationship to the United States resembl[ing] that of a ward to his guardian."' 1 3 In Worcester, Marshall stated that "the settled doctrine of the law of nations is, that a weaker power does not surrender its independence-its right to selfgovernment, by associating with a stronger, and taking its protection."' 4 The tribes, he stated, were "independent political communities." 15 Courts, administrators, and commentators have struggled with the paradox of a relationship between a sovereign and a dependent sovereign. A Department of the Interior opinion addressed the problem, emphasizing the tribes' inherent sovereignty: The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: An Indian tribe possesses, in the first instance, all the powers of any sovereign State. Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe,.. . but does not by itself affect the internal sovereignty of the tribe .... These powers are subject to be qualified by treaties and by express legislation of Congress, but save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of 8. The United States stopped negotiating treaties with Indians in 1871. See infra note 48 and accompanying text. But see Cayuga Indians Claims, 6 R. Int'l Arb. Awards 173, 20 AM. J. INT'L L. 574 (Amer. & Brit. Cl. Arb. Trib. 1926) (compensatory award to Canadian Cayugas for taking of tribal lands based on equitable grounds and not on the theory that the tribe is a legal unit under international law). 9. The dictionary definition of "sovereign" is "one that exercises supreme authority within a limited sphere." WEnsTER's NEW COLLEGIATE DICTIONARY 1104 (1973 ed.). In this Note, the term "sovereignty" refers to the "inherent political independence" to which some native groups are entitled, and the term "exercise of sovereignty" refers to various powers that a sovereign may attempt to exercise. See F. COHEN, 1982 ed., supra note 1, at 246-57 (discussing powers retained by inherently sovereign tribes). This Note's proposed analysis identifies the existence of sovereignty by reference to natural rights theory and analyzes limits on the exercise of sovereignty by reference to limits imposed by the federal government. See infra text accompanying notes 151-60.

Alaska Native Language, Culture and Identity

uaa.alaska.edu

Alaska Native peoples inherited customs, languages, and intricate ways of knowing the land of their birth. There are many ways to configure the groups of languages and pre-colonial nations depending on your perspective. Most agree that there are 20 indigenous Alaskan languages with many dialects within each language. Likewise, most agree that there are two predominant language families that divide the coastal Inupiat, Yupiit, Unangan and Sugpiat peoples from the Athabascan, Eyak and Tlingit languages.

Smooth the Dying Pillow: Alaska Natives and Their Destruction [chapter]

1990

This paper was originally presented in Symposium III, "Group Rights at the Close of the Twentieth Century: Strategies for Assisting the Fourth World; Session 3, Evaluating Strategies for Change" at the 12th International Congress, Commission on Folk Law and Legal Pluralism, International Union of Anthropological and Ethnological Sciences, Zagreb, Yugoslavia, Jul 1988. The paper as originally presented can be found at http://hdl.handle.net/11122/7350.The policy for Native self-determination in Alaska developed by the Congress and the state has sought to replace a tribal model of governance with a body of legislation which confirms land rights without the direct political involvement of Alaska Native villages. However, the author argues, the absence of tribes as formal political structures has contributed to a loss of self-determination among Alaska Natives and to serious negative effects on Native village life.The Pre-Land Claims Agenda: 1955-1965 / The Land Claims Era: 196...

Interpreting Indian Country in State of Alaska v. Native Village of Venetie

2006

NATivE REvImV CONWISSION 92 (1985) [hereinafter "BERGER"]. 2. Like many Indian law articles, this one uses the terms "Indian" .native" and "indigenous" somewhat interchangeably. "Alaska Natives" include Tlingit, Eyak, Haida, Tsimshian and Athabaskan Indians, Aleuts, Inupiats, and Yupiks. These cultural and linguistic groups are represented in 220 federally recognized Alaska Native tribes. See generally, DAVID CASE, ALASKA NATVES AND AMRICAN LAws 333 (1997) [hereinafter" CASa"]. 3. See Rennard Strickland and Glora Valencia-Weber, Observations on the Evolution of Indian Law in the Law Schools, 26 N.M. REV. 153, 167 (1996) [Federal law affects] over 550 federally recognized tribes and 200 plus in the process of qualifying for such a nation-to-nation relationship. Through [Title 25 of the U.S. Code and Code of Federal Regulations], individual Indians also have a unique relationship with the federal government, which reaches into everyday life to affect occupations, family relations, land title, probate and other matters in ways that no other citizens experience.)