COULD MAKE GOVERNING COMPLICATED
Attorney General Jahna Lindemuth has spoken, and it’s changing Alaska fundamentally in a way not seen since the Alaska Native Claims Settlement Act. In fact, it reverses much of the understanding of that law:
Lindemuth says there are 229 sovereign tribal governments in Alaska and there could be more in time. It doesn’t matter if they have land or are landless — they are still sovereign. And by sovereign, she means they are like nations unto themselves.
“The existence of a tribe or tribal government does not require a federal determination and tribal sovereignty does not originate with the federal government,” Lindemuth wrote.
Each of these governments may make their own laws, establish their own justice systems, determine who can be a member, and initiate government-to-government relations with each other and the State of Alaska.
“The law is clear. There are 229 Alaska Tribes and they are separate sovereigns with inherent sovereignty and subject matter jurisdiction over certain matters” – Attorney General Jahna Lindemuth
The attorney general’s opinion was issued during the Alaska Federation of Natives’ annual convention in Anchorage, timing that was no doubt planned in advance by the administration of Gov. Bill Walker and Lt. Gov. Byron Mallott, who are running for re-election and shoring up support among Democrats and rural Alaska for their so-called “Unity Ticket.”
The 16-page opinion was published on the State’s web site on Thursday, but the Governor’s Office offered no press release regarding the breathtaking decision, which fundamentally remodels the political makeup of Alaska, creating hundreds of government layers that now must be negotiated with individually.
Lindemuth’s opinion came on the same day that Walker signed another historic document — a cooperative agreement with 17 tribes to take over child welfare functions the State has had since statehood.
“Tribal governments are separate sovereigns. As a starting point, tribal sovereignty can perhaps be understood as self-rule — the right to make one’s own laws and be governed by them. Tribes possess inherent powers of self-government and exercise these powers to the extent they have not been extinguished. It is presumed that a tribe’s inherent sovereignty remains intact unless it has been divested or limited by Congress,” she wrote.
Further, tribes have jurisdiction over people who enter their lands, and can decide who their members are, and govern them on or off their land, she wrote.
“Determining tribal citizenship is also a fundamental attribute of sovereignty. Tribal citizenship can determine, among other things, the right to vote in tribal elections, to hold tribal office, and to receive tribal resources. Eligibility for federal benefits and assistance provided to Alaska Native people because of their status as Alaska Native may be based upon tribal citizenship. And while denial of tribal citizenship may result in the denial of federal health and education benefits, tribal citizenship decisions are decisions solely made by tribes,” she wrote.
In other words, a tribe may accept a non-Native into the tribe so that person may be eligible for benefits, or may punish someone and kick them out of the tribe, thereby hampering their ability to collect government benefits. It is unclear whether the State of Alaska can extradite someone from tribal custody in criminal cases.
“Forming a government is a basic element of sovereignty. Tribes possess the inherent authority to establish their form of government, including justice systems, that best suits their own practical or cultural needs,” Lindemuth wrote.
“Constitutions adopted by tribes following the passage of the Indian Reorganization Act (IRA) were based on sample documents developed by the BIA. However, tribes exercising powers under IRA constitutions are still acting under their inherent sovereign authority. Tribal governments can also be formed or organized outside of the IRA framework, whether or not a written constitution has been adopted.”
The attorney general’s ruling changes Alaska fundamentally into a hodgepodge of hundreds of governments, all with their own rules, and all of them, except for the State of Alaska, not subject to constitutional protections.
The question of tribal sovereignty goes back to the Alaska Native Claims Settlement Act, which extinguished tribal sovereignty, to the dismay of many Native leaders. It is unclear whether the Attorney General’s decision could withstand a court challenge due to its conflicts with ANCSA.