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This opinion was acquired from the 9th Circuit and enhanced for distribution on the Internet byFOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF ALASKA ex rel. YUKON
FLATS SCHOOL DISTRICT,
UNALAKLEET/NEESER CONSTRUCTION
JV, UNALAKLEET NATIVE
CORPORATION, NEESER
CONSTRUCTION COMPANY, and
GERALD NEESER,
Plaintiffs-Appellees,
No. 96-35042
v.
D.C. No.
NATIVE VILLAGE OF VENETIE TRIBAL
CV-87-00051-HRH
GOVERNMENT, a/k/a THE NATIVE
OPINION
VILLAGE OF VENETIE, THE VENETIE
TAX COURT, THE VENETIE TAX
COMMISSION, GIDEON JAMES,
LAWRENCE ROBERTS, LARRY
WILLIAMS, ERNEST ERICK, LINCOLN
TRITT, JOHN TITUS, and DAVID
CASE,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, Presiding
Argued and Submitted
October 7, 1996--Seattle, Washington
Filed November 20, 1996
Before: James R. Browning, Dorothy W. Nelson, and
Ferdinand F. Fernandez, Circuit Judges.
14907
Opinion by Judge D.W. Nelson;
Concurrence by Judge Fernandez
14911
COUNSEL
Heather R. Kendall, Native American Rights Fund, Anchor-
age, Alaska, for the defendants-appellants.
William F. Cummings and D. Rebecca Snow, Assistant Attor-
neys General, State of Alaska, Juneau, Alaska, for the
plaintiffs-appellees.
Lloyd Benton Miller, Sonosky, Chambers, Sachse, Miller &
Munson, Anchorage, Alaska, for amici Native Village of Bar-
row, et al.
14912
W.D. Bennett, Partnow, Sharrock & Tindall, Anchorage,
Alaska, for amicus Alaska Support Industry Alliance, Inc.
_________________________________________________________________
OPINION
D.W. NELSON, Circuit Judge:
The Native Village of Venetie Tribal Government appeals
the district court's determination that the Alaska Native
Claims Settlement Act extinguished Indian country in Alaska,
and that the tribal government therefore lacks the authority to
impose its Business Activities Tax upon a state contractor.
We have jurisdiction pursuant to 28 U.S.C. S 1291, and
reverse the district court's judgment. We conclude that the
Alaska Native Claims Settlement Act did not extinguish
Indian country in Alaska as a general matter, and that the land
Venetie occupies is Indian country.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from Venetie's attempt to impose its Busi-
ness Activities Tax upon the Nesser Construction Company,
which had been hired by the State of Alaska to build a new
school in the village.
The Neets'aii Gwich'in -- from whom nearly all of the
inhabitants of Venetie descend -- are a group of Alaska
Natives that has historically inhabited an area consisting of
the East Fork of the Chandalar River. In 1940, the Neets'aii
Gwich'in adopted a constitution under the Indian Reorganiza-
tion Act, 25 U.S.C. S 476. This constitution established the
Native Village of Venetie as the governing authority of the
Neets'aii Gwich'in. In 1943, the Secretary of the Interior cre-
ated a reservation for the Neets'aii Gwich'in out of approxi-
mately 1.8 million acres surrounding Venetie. The Native
Village of Venetie has governed this reserve since its creation.
14913
In 1976, the Native Village of Venetie restructured its council
to include formal representation from Arctic Village (another
community comprised of Neets'aii Gwich'in) and changed its
name to the Native Village of Venetie Tribal Government
("Venetie").
In 1971, Congress passed the Alaska Native Claims Settle-
ment Act ("ANCSA"), 43 U.S.C. S 1601 et seq. ANCSA
revoked "the various reserves set aside" for Alaska Natives by
legislative or executive action, including the Venetie Reserva-
tion. 43 U.S.C. S 1618(a). In exchange, Congress authorized
the transfer of $962.5 million and approximately 44 million
acres of land to Native village and regional corporations cre-
ated by the Act. 43 U.S.C. SS 1606, 1607, 1611. These corpo-
rations were to be owned by Native shareholders residing in
the corporations' respective geographical areas.
Announcing the goals of the Act, Congress declared that
the settlement should be accomplished rapidly, with
certainty, in conformity with the real economic and
social needs of Natives, without litigation, with max-
imum participation by Natives in decisions affecting
their rights and property, without establishing any
permanent racially defined institutions, rights, privi-
leges, or obligations, without creating a reservation
system or lengthy wardship or trusteeship . . . .
43 U.S.C. S 1601(b). Congress clarified that ANCSA did not
"relieve, replace, or diminish any obligation of the United
States or of the State or [sic] Alaska to protect and promote
the rights or welfare of Natives . . . ." 43 U.S.C. S 1601(c).
Congress enabled Native village corporations to opt out of
ANCSA and to receive title in fee simple to their former res-
ervation lands. 43 U.S.C. S 1618(b). Under this option, "any
Village Corporation or Corporations may elect within two
years [after the enactment of ANCSA] to acquire title to . . .
14914
any reserve set aside for the use or benefit of its stockholders
or members prior to December 18, 1971." Id. Village corpora-
tions that exercised this option were not eligible to receive
land or monetary distributions from the regional corporation.
Two Native villages were recognized by ANCSA within
the boundaries of the former Venetie Reservation and two
Native village corporations were thus established for the
Neets'aii Gwich'in: one in Venetie (the Venetie Indian Cor-
poration), and one in Arctic Village (the Neets'aii Corpora-
tion). In 1973, the shareholders of both corporations elected
to opt out of ANCSA and to take title to their former reserva-
tion lands. The United States conveyed title to the former
Venetie Reservation to the Venetie Indian Corporation and
the Neets'aii Corporation as tenants in common.
In 1979, the tribal membership, acting through the Venetie
Indian Corporation and the Neets'aii Corporation, transferred
title to the former Venetie Reservation to Venetie. The share-
holders then voted to dissolve the two Native village corpora-
tions. In 1981, the State of Alaska dissolved the corporations
for non-payment of fees.
In 1986, Venetie enacted a Business Activities Tax, which
imposed a five percent tax on "source gains" derived from
commercial activities within the village. That same year, the
State of Alaska, through the Yukon Flats School District,
entered into a contract with the Nesser Construction Company
for the construction of a school within the Native Village of
Venetie.
In 1987, Venetie filed suit in the tribal tax court to collect
taxes assessed against the Nesser Construction Company in
the amount of $161,203.15. The State of Alaska, as the party
responsible for paying the tax, refused to defend in tribal
court and brought a federal action in the District of Alaska for
declaratory and injunctive relief against the Tribe. The state
claimed that the Tribe lacked jurisdiction to impose the tax.
14915
The district court issued a preliminary injunction enjoining
the Tribe from further enforcement proceedings. The Ninth
Circuit upheld this ruling. State of Alaska v. Native Village of
Venetie, 856 F.2d 1384 (9th Cir. 1988) (Venetie I). The
Venetie I court held that the Tribe's authority to impose the
tax upon non-members turned on whether Venetie is a feder-
ally recognized tribe and, if so, whether it inhabits Indian
country. The court articulated a six-part test to guide the dis-
trict court in its determination of the Indian country question.
On remand, the district court held that although Venetie is
a tribe, it does not occupy Indian country as that term is
defined by 18 U.S.C. S 1151. Applying its own four-part
inquiry, the court determined that while Venetie was a depen-
dent Indian community before 1971, Congress extinguished
that status when it passed ANCSA.
Venetie's argument on appeal is in three parts. First, Vene-
tie contends that the district court applied an unduly restric-
tive standard to determine whether the land at issue is Indian
country. Second, Venetie argues that ANCSA did not extin-
guish Indian country in Alaska. Finally, Venetie asserts that
it continues to occupy Indian country and therefore retains its
inherent authority to tax activities occurring within its terri-
tory.
STANDARD OF REVIEW
The interpretation of a statute is a question of law reviewed
de novo. Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 921 (9th
Cir.), cert. denied, _______ U.S. _______, 116 S. Ct. 337, 133 L. Ed.
2d 236 (1995). The district court's factual findings are
reviewed for clear error. Fed. R. Civ. P. 52(a); United States
v. American Prod. Indus., Inc., 58 F.3d 404, 407 (9th Cir.
1995). Accordingly, the district court's determination that
Venetie does not occupy Indian country as defined by 18
U.S.C. S 1151(b) is reviewed de novo, but the facts mar-
14916
shalled by the district court to support this determination are
reviewed for clear error.
THE LEGAL STANDARD FOR DETERMINING
WHETHER A TRIBE OCCUPIES INDIAN COUNTRY
[1] The ultimate question presented by this case -- whether
Venetie has the authority to tax activities occurring within its
territory -- turns on whether Venetie occupies Indian country.
Venetie I, 856 F.2d at 1390. To resolve this question, we must
first establish the proper standard for determining whether
Indian country exists in a given case.
Congress has defined Indian country as follows:
"Indian country," as used in this chapter, means (a)
all land within the limits of any Indian reservation
under the jurisdiction of the United States Govern-
ment, notwithstanding the issuance of any patent,
and, including rights-of-way running through the
reservation, (b) all dependent Indian communities
within the borders of the United States whether
within the original or subsequently acquired territory
thereof, and whether within or without the limits of
a state, and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including
rights-of-way running through the same.
18 U.S.C. S 1151 (emphasis added). This definition applies to
both criminal and civil jurisdiction. California v. Cabazon
Band of Mission Indians, 480 U.S. 202, 207 n.5, 107 S. Ct.
1083, 94 L. Ed. 2d 244 (1987). Venetie occupies neither a res-
ervation nor an allotment. Thus, we must establish the test for
determining whether a tribe constitutes a dependent Indian
community within the meaning of S 1151(b).
Although the Supreme Court has never resolved this nar-
row question, we do not write on a blank slate. A clear body
14917
of Court precedent emphasizes two central features of the
inquiry into whether a given area constitutes Indian country,
as a general matter: first, whether the territory is "validly set
apart for the use of the Indians as such," and second, whether
the Natives who inhabit it are "under the superintendence of
the [federal] Government." Oklahoma Tax Comm'n v. Citizen
Band Potawatomi Indian Tribe, 498 U.S. 505, 511, 111 S. Ct.
905, 112 L. Ed. 2d 1112 (1991); see United States v. John,
437 U.S. 634, 649, 98 S. Ct. 2541, 57 L. Ed. 2d 489 (1978);
United States v. McGowan, 302 U.S. 535, 539, 58 S. Ct. 286,
82 L. Ed. 410 (1938); United States v. Pelican, 232 U.S. 442,
449, 34 S. Ct. 396, 58 L. Ed. 676 (1914).1
Four circuits, including our own, have incorporated these
two factors into more detailed approaches to the question of
whether a Native group constitutes a dependent Indian com-
munity. Drawing upon the Eighth Circuit's decision in United
States v. South Dakota, 665 F.2d 837 (8th Cir. 1981), cert.
denied, 459 U.S. 823, 103 S. Ct. 52, 74 L. Ed. 2d 58 (1982),
the First and Tenth Circuits have also adopted a multi-
factored test to determine whether a tribe constitutes a depen-
dent Indian community:
[W]hether a particular geographical area is a depen-
dent Indian community depends on a consideration
of several factors. These include: (1) whether the
United States has retained "title to the lands which
it permits the Indians to occupy" and "authority to
enact regulations and protective laws respecting this
territory,"; (2) "the nature of the area in question,
_________________________________________________________________
1 The district court noted that "it is not land but Indians whichmust be
under the superintendence of the federal government. " We agree. Cf. John,
437 U.S. at 649 ("The Mississippi lands in question here were declared by
Congress to be held in trust by the Federal Government for the benefit of
the Mississippi Choctaw Indians who were at that time under federal
supervision." (emphasis added)). The set aside requirement adequately
ensures that Indian country will not be found absent some federal connec-
tion to the land at issue.
14918
[(3)] the relationship of the inhabitants in the area to
Indian tribes and to the federal government, and[(4)]
the established practice of government agencies
toward the area,"; ([5]) whether there is "an element
of cohesiveness . . . manifested either by economic
pursuits in the area, common interests, or needs of
the inhabitants as supplied by that locality," and ([6])
"whether such lands have been set apart for the use,
occupancy and protection of dependent Indian
peoples."
Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d
1531, 1545 (10th Cir. 1995) (quoting South Dakota, 665 F.2d
at 839 (citations omitted)); see also Narragansett Indian Tribe
of Rhode Island v. Narragansett Elec. Co., 89 F.3d 908, 917-
22 (1st Cir. 1996). The Second Circuit has endorsed the three-
fold inquiry originally outlined in United States v. Martine,
442 F.2d 1022, 1023 (10th Cir. 1971), which consists of the
three elements subsumed within the second prong of the
South Dakota test. See United States v. Cook, 922 F.2d 1026,
1031 (2d Cir.), cert. denied, 500 U.S. 941, 111 S. Ct. 2235,
114 L. Ed. 2d 477 (1991).
Relying upon South Dakota and Martine, we have sug-
gested that an inquiry into whether a Native group qualifies
as a dependent Indian community requires an analysis of six
factors:
(1) the nature of the area; (2) the relationship of the
area inhabitants to Indian tribes and the federal gov-
ernment; and, (3) the established practice of govern-
ment agencies toward that area; . . . . ([4]) the degree
of federal ownership of and control over the area;
([5]) the degree of cohesiveness of the area inhabi-
tants; and ([6]) the extent to which the area was set
aside for the use, occupancy, and protection of
dependent Indian peoples.
14919
Venetie I, 856 F.2d at 1391. The only significant difference
between our suggested inquiry and the test adopted by the
First, Eighth, and Tenth Circuits is that we assess the "degree
of federal ownership and control" over the area in question
while the other circuits ask whether the United States retains
"title" to the land in question.
In this case, the district court departed from our suggested
six-part inquiry and carved out a new test that differs not only
from Venetie I but from South Dakota and Martine as well.
Relying primarily on John and Potawatomi, the court deter-
mined that the essential factors to be considered when assess-
ing whether a dependent Indian community exists are whether
"the Tribal Government holds land set apart for Alaska
Natives as such," and whether "the Tribal Government is
under the active supervision of the federal government."
Indeed, the court concluded that a finding of a dependent
Indian community requires a showing of these two factors,
along with proof that the Native group in question is a tribe.
The court listed two additional factors that could be consid-
ered to determine the extent, rather than the existence, of
Indian country: "the nature of the area" and "the relationship
of the area inhabitants to one another, to Indian tribes, and the
federal government." The district court explained that the
additional factors set forth in the circuit tests were "somewhat
overlapping," and were subsumed in its new test.
We agree with the district court in this respect: a federal set
aside and federal superintendence are the dominant factors of
the dependent Indian community calculus. The most plausible
reading of the caselaw supports the district court's approach.
Although John and Potawatomi concerned reservation lands
that would now fall under S 1151(a),2 and Pelican concerned
_________________________________________________________________
2 In both Potawatomi and John, the Supreme Court concluded that the
territories in question were Indian country because they could be viewed
as reservations, construed broadly, and not because they were dependent
Indian communities. John, 437 U.S. at 648 n.17 ("Inasmuch as we find in
14920
allotment land that would now fall within the provisions of
S 1151(c), we do not believe that courts should abandon the
basic principles that have informed their analysis of Indian
country for decades just because they are evaluating the status
of an area that does not fit neatly into S 1151(a) or (c).
Clearly, the Supreme Court has stressed the importance of an
inquiry into whether tribal land was set aside by the federal
government and whether the Natives who inhabit it are under
the superintendence of the federal government. See, e.g.,
Potawatomi, 498 U.S. at 511; John, 437 U.S. at 649. Indeed,
in McGowan, a case concerning a dependent Indian commu-
nity that was decided prior to the enactment ofS 1151, the
Court enunciated precisely these criteria. McGowan, 302 U.S.
at 539. Furthermore, numerous lower courts have emphasized
these requirements. See, e.g., Buzzard v. Oklahoma Tax
Comm'n, 992 F.2d 1073, 1076-77 (10th Cir.), cert. denied,
510 U.S. 994, 114 S. Ct. 555, 126 L. Ed. 2d 456 (1993);
Blatchford v. Sullivan, 904 F.2d 542, 548-49 (10th Cir. 1990),
cert. denied, 498 U.S. 1035, 111 S. Ct. 699, 112 L. Ed. 2d 689
(1991); Weddell v. Meierhenry, 636 F.2d 211, 212-13 (8th
Cir. 1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L.
Ed. 2d 329 (1981); United States v. Adair, 913 F. Supp. 1503,
1515 (E.D. Okla. 1995); United States v. Mound, 477 F. Supp.
156, 160 (D.S.D. 1979); Youngbear v. Brewer, 415 F. Supp.
807, 809 (N.D. Iowa 1976), aff'd, 549 F.2d 74 (8th Cir.
1977).
Although we adopt federal set aside and superintendence as
prerequisites to the existence of a dependent Indian commu-
nity, we believe that these requirements should be construed
broadly. This construction accords with the Supreme Court
_________________________________________________________________
the first category [S 1151(a) -- Reservations] a sufficient basis for the
exercise of federal jurisdiction in this case, we need not consider the sec-
ond and third categories [of S 1151]."); Potawatomi, 498 U.S. at 511 ("As
in John, we find that this trust land is`validly set apart' and thus qualifies
as a reservation for tribal immunity purposes.").
14921
cases upon which S 1151 is based, see Reviser's Note, 1948
Act, 18 U.S.C.A. S 1151: United States v. Sandoval, 231 U.S.
28, 34 S. Ct. 1, 58 L. Ed. 107 (1913), and McGowan, 302
U.S. at 539. Both cases eschewed a formalistic assessment of
the status of tribal land and adopted a more functional
approach to the problem of Indian country that focuses on
dependence as the primary consideration. For example, in
Sandoval the Court held that Congress possessed the power to
designate lands held in fee by the Pueblo as Indian country.
Congress neither had conferred the lands to the Pueblo, nor
held them in trust; rather, they were held in fee under land
grants from the King of Spain. Thus, Sandoval suggests that
the fact that a tribe holds title to land in fee simple, without
any restrictions on alienation imposed by the federal govern-
ment, should not in itself preclude a finding that the land was
"set aside" by the government. A per se refusal to construe fee
land as Indian country would conflict with Sandoval, 231 U.S.
at 48; see Narragansett, 89 F.3d at 918. While Sandoval is not
inconsistent with a general set-aside requirement, it suggests
that a set-aside can include land held in fee when Congress
designates that land as Indian country.
Likewise, federal superintendence should be interpreted
broadly. We cannot agree with the district court's requirement
that federal superintendence must be "pervasive, " meaning
that it be the "dominant political institution " in the area as
compared to the state. There is no precedent to support nar-
rowing the federal superintendence requirement in this man-
ner. Proof that federal superintendence is "pervasive" has
never been required by the Supreme Court. To the contrary,
the Court indicated in John that unchallenged state jurisdic-
tion and noncontinuous federal supervision do not eliminate
Indian country. 437 U.S. at 652-53; see also Indian Country,
U.S.A. v. Oklahoma Tax Comm'n, 829 F.2d 967, 974 (10th
Cir. 1987), cert. denied, 487 U.S. 1218, 108 S. Ct. 2870, 101
L. Ed. 2d 906 (1988); South Dakota, 665 F.2d at 842 (citing
John, 437 U.S. at 653).
14922
Having determined that a federal set aside and federal
superintendence are required elements of a dependent Indian
community, and that these requirements should be broadly
construed, we must also consider whether the district court
erred when it replaced the six-factor inquiry suggested by this
court in Venetie I with its own four-part test.
The purpose of developing a multi-factored analysis is not
to calcify the Indian country inquiry by erecting a compli-
cated set of prerequisites to the establishment of a dependent
Indian community. Rather, the multi-factored inquiry sug-
gested by Venetie I and modified by the district court is
intended to illuminate the "factually dependent " inquiry into
whether those requirements have been met. See Venetie I, 856
F.2d at 1391. We must guide lower courts as they seek to pro-
vide meaning to the general notions of set aside and superin-
tendence. We conclude that the functional approach to Indian
country suggested by Sandoval and McGowan recommends
the more textured six-factor inquiry presented by this court in
Venetie I and adopted by three other circuits, see Narragan-
sett, 89 F.3d at 917-22; Pittsburg, 52 F.3d at 1545; South
Dakota, 665 F.2d at 839, over the more restrictive four-prong
test advanced by the district court.
Having explained the purpose of the multi-factored inquiry,
it is not surprising to find that the factors set forth in our six-
part test overlap considerably. For example, the inquiry into
the "practice of government agencies toward the area" (third
factor in Venetie I) may be subsumed within the larger princi-
ple of federal superintendence. And the inquiry into the
"degree of federal ownership and control" (fourth factor in
Venetie I) falls within the set-aside inquiry. Indeed, all six fac-
tors listed in the Venetie I decision could be construed to fit
within the two fundamental elements of a dependent Indian
community. Likewise, the two additional factors that the dis-
trict court chose to leave in place -- "the nature of the area"
and "the relationship of the area inhabitants to one another, to
Indian tribes, and the federal government" -- fall under the
14923
general rubric of set aside and superintendence, respectively.
Because we believe that a functional inquiry into federal set
aside and superintendence is better facilitated by a consider-
ation of a wide range of factors, we embrace the six-factor
analysis that was suggested in Venetie I and which is virtually
identical to the approach adopted by three other circuits. See
Narragansett, 89 F.3d at 917-22; Pittsburg, 52 F.3d at 1545;
South Dakota, 665 F.2d at 839.
[2] In sum, we hold that a dependent Indian community
requires a showing of federal set aside and federal superinten-
dence. These requirements are to be broadly construed and
should be informed in the particular case by a consideration
of the following factors:
(1) the nature of the area; (2) the relationship of the
area inhabitants to Indian tribes and the federal gov-
ernment; (3) the established practice of government
agencies toward that area; (4) the degree of federal
ownership of and control over the area; (5) the
degree of cohesiveness of the area inhabitants; and
(6) the extent to which the area was set aside for the
use, occupancy, and protection of dependent Indian
peoples.
DID ANCSA EXTINGUISH INDIAN COUNTRY IN
ALASKA?
We proceed to apply this standard to discern whether the
Alaska Native Claims Settlement Act extinguished Indian
country in Alaska. Our analysis focuses on federal set aside
and federal superintendence because they are the factors that
are most relevant to an analysis of the effect of a general stat-
ute such as ANCSA. The additional factors that we have
adopted above become significant when analyzing whether a
specific parcel of land qualifies as Indian country. For exam-
ple, the cohesiveness of the community and the nature of the
area at issue only become intelligible factors once the level of
14924
inquiry moves from general statutory provisions to specific
territorial claims. Accordingly, the following analysis of
ANCSA focuses on set aside and superintendence generally.
When we proceed to answer the ultimate question of whether
Venetie occupies Indian country, we will illuminate this gen-
eral inquiry by considering the additional factors of our six-
part test.
A. Canons of Construction
[3] We begin by emphasizing the fundamental principle
that statutes affecting Indian rights "are to be liberally con-
strued, doubtful expressions being resolved in favor of the
Indians." Alaska Pacific Fisheries Co. v. United States, 248
U.S. 78, 89, 39 S. Ct. 40, 63 L. Ed. 138 (1918); see also Rum-
sey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d
1250, 1257 (9th Cir. 1994); McNabb v. Bowen, 829 F.2d 787,
792 (9th Cir. 1987). This canon of construction derives from
the trust relationship that exists between the federal govern-
ment and Native Americans. See Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1, 17, 8 L. Ed. 25 (1831). "Since Congress
is exercising a trust responsibility when dealing with Indians,
courts presume that Congress' intent toward them is benevo-
lent and have developed canons of construction that treaties
and other federal action should when possible be read as pro-
tecting Indian rights and in a manner favorable to Indians."
Felix S. Cohen, Handbook of Federal Indian Law 221 (1982
ed.). Among these canons is the rule that Congress's intent to
abrogate Indian rights must be indicated by a "clear and plain
statement." See id. at 224.
[4] ANCSA falls into that category of statutes enacted for
the benefit of Indians. Therefore, it should be liberally con-
strued, and "doubtful expressions [should be ] resolved in
favor of the Indians." Alaska Pacific Fisheries, 248 U.S. at
89. Specifically, congressional intent to extinguish Indian
country must be reflected by "clear and plain " language.
United States v. Sante Fe Pac. R.R. Co., 314 U.S. 339, 353,
14925
62 S. Ct. 248, 86 L. Ed. 260 (1941). It is with this background
principle in mind that we consider the effect of ANCSA.
B. Federal Set Aside
[5] There is no question that Congress set aside land for
specific Native entities when it enacted ANCSA. The only
question is whether Congress set aside ANCSA land for
Alaska Natives, as such. We believe that the village corpora-
tions established under ANCSA, while business entities,
maintain a distinctly Native identity. Accordingly, we con-
clude that land set aside for such corporations qualifies as
land set aside for Alaska Natives, as such.
The district court determined that the corporate model of
Native land ownership established under ANCSA precluded
a finding that the federal government had set aside the land
at issue for the use of Alaska Natives. The court concluded
that the corporate model of land ownership dictated by the
Act evinced a congressional intent to treat Alaska Natives as
ordinary business entities -- not Natives, "as such."
[6] We disagree. First, the corporations established under
ANCSA differ markedly from ordinary business corporations.
Natives own and manage the corporations. Under the original
statute, membership in the corporations was restricted to
Natives for 20 years, 43 U.S.C. S 1606(h)(1), and the 1987
Amendments allow each corporation to extend this restriction
indefinitely. Alaska Native Claims Settlement Act Amend-
ments of 1987, Pub. L. No. 100-241 (1987) (codified at 43
U.S.C. S 1629c). In addition, the Act provides for each village
corporation to be comprised of Natives from a particular
Native village, each an existing Native political and cultural
entity. 43 U.S.C. S 1607(a). Indeed, under the Act each vil-
lage corporation gained at a minimum the surface estate to the
very land on which the particular Native village was situated.
43 U.S.C. S 1611(a)(1) (conferring on each local corporation
the right to select "all of the township or townships in which
14926
any part of the village is located, plus an area that will make
the total selection equal to the acreage to which the village is
entitled . . . ."). Accordingly, the land grants under the Act
were far different from mere distributions made to business
entities on the basis of monetary value. Rather, they were
informed by Natives' historical ties to the lands they inhabit.
[7] Second, the statute suggests that the local corporations
are the instruments of, and owe obligations to, the Native vil-
lages. The Act defines each village corporation as charged
with the responsibility of managing assets "for and on behalf
of a Native village . . . ." 43 U.S.C. S 1602(j).
[8] Third, the significant protections of Native land offered
by ANCSA and its amendments indicate the extraordinary
character of these "business" corporations. Under the original
version of the Act, the corporations enjoyed nearly a complete
exemption from the requirements of the federal securities
laws until 1991, 43 U.S.C. S 1625 (original version of stat-
ute), as well as immunity from state and local property taxes
on undeveloped land, 43 U.S.C. S 1620 (original version of
statute). The 1987 Amendments enabled the corporations to
extend the former exemption. Pub. L. No. 100-241 (1987)
(codified at 43 U.S.C. S 1625).
The Alaska National Interest Lands Conservation Act
("ANILCA"), Pub. L. No. 96-487 (1980) (codified at 16
U.S.C. SS 3101-3233, 43 U.S.C. SS 1606, 1631-41), has pro-
vided further protections to Native land. ANILCA permitted
Native corporations to place their undeveloped lands in a
"land bank," which entitles them to tax benefits, 43 U.S.C.
S 1636. Specifically, in exchange for placing a moratorium on
development and sale of the "banked" land, and agreeing to
manage the land in accordance with federal requirements, the
corporations qualify for federal and state property tax immu-
nity. 43 U.S.C. S 1636.3
_________________________________________________________________
3 The fact that all private landowners, and not just Native corporations,
are eligible for benefits under ANILCA is not significant. Only private
14927
Finally, the restrictions on Native corporation stock pro-
vided by ANCSA indicate the special character of these cor-
porations. At the election of the corporation, its stock may not
be alienated, 43 U.S.C. S 1606(h)(1)(B)(vi), and voting rights
may be limited to Native stockholders, 43 U.S.C.SS 1606(h)
(2)(C). Even where the corporation elects to lift restrictions on
alienation, it may still restrict voting rights to Native stock-
holders. 43 U.S.C. S 1606(h)(3)(D)(i). Native corporations
may also amend their bylaws to give the corporation the right
to buy any stock offered for sale by a stockholder, 43 U.S.C.
S 1606(h)(3)(D)(ii), and the right of first refusal on any shares
transferred to a non-Native pursuant to intestate succession,
43 U.S.C. S 1606(h)(2)(B).
[9] In reaching its conclusion that ANCSA lands were not
set aside for Alaska Natives as such, the district court also
emphasized ANCSA's provision for Native ownership of land
in fee. It is true that in spite of the protections described
above, the lands selected by the Natives under ANCSA are
freely alienable, unless the Natives elect to seek the shelter of
the ANILCA "land bank." But the mere fact that Alaska
Natives hold title to the land in fee does not preclude a finding
that Congress set aside the lands for their use and occupancy.
Refusal to treat a Native group as a dependent Indian commu-
nity simply because it owned land in fee would conflict with
one of the seminal cases on the subject, Sandoval, 231 U.S.
at 48. Such a rule would also violate principles articulated by
the Supreme Court in another early Indian country case,
United States v. Chavez, 290 U.S. 357, 364, 54 S. Ct. 217, 78
_________________________________________________________________
owners of land adjacent to or directly affecting federal or state lands are
eligible. 43 U.S.C. S 1636(a)(1). Even more important, Native corpora-
tions receive greater benefits than other landowners -- only Native corpo-
rations are entitled to tax immunity, 43 U.S.C.S 1636(c)(2). These
protections not only evince a congressional intent to preserve a protective
relationship with Alaska Natives, one which continues a policy of federal
superintendence, see infra, but they also suggest that Congress meant to
"set aside" the land specifically for the use of Natives, as such.
14928
L. Ed. 360 (1933). There, the Court stated that Indian country
includes "any unceded lands owned or occupied by an Indian
nation or tribe." Id. (emphasis added).
The Tenth Circuit has considered several cases raising this
issue and has concluded that mere fee ownership does not pre-
vent Native-owned land from qualifying as Indian country. In
Indian Country, U.S.A., 829 F.2d at 973, the Tenth Circuit
held that land owned by the Creek Nation is Indian country,
even though it is neither on a reservation nor on land held in
trust by the federal government. The court concluded that "it
would be anomalous to adopt the State's position suggesting
that the treaties conferring upon the Creek Nation a title
stronger than the right of occupancy have left the tribal land
base with less protection, simply because fee title is not for-
mally held by the United States in trust for the tribe." Id. at
975-76. The First Circuit has drawn a similar conclusion.
Narragansett, 89 F.3d at 918.
[10] These cases suggest that the purpose of the "set-aside"
requirement is to ensure that Native groups do not unilaterally
claim rights over Indian country by requiring that Congress at
least recognize or designate the land at issue for Native use.
On these grounds, the argument that the government set aside
the land is stronger in this case than it is in either Sandoval
or Martine, where the Tribes acquired fee title from entities
other than the government. Here, Congress specifically has
conferred the land at issue on the Natives by statute. We hold
that this satisfies the set aside requirement.
C. Federal Superintendence
[11] The superintendence requirement of the dependent
Indian community test is designed to determine the extent to
which the traditional trust relationship between the federal
government and Native Americans remains intact in a particu-
lar case. There is no hard and fast rule for determining how
14929
involved the trust relationship must be to constitute the requi-
site level of superintendence.
[12] Before the passage of ANCSA, Alaska Natives were
thought to be under the guardianship of the United States and
were entitled to the benefits of this special relationship. See
Alaska Pacific Fisheries Co., 248 U.S. at 88; Pence v. Kleppe,
529 F.2d 135, 138 n.5 (9th Cir. 1976); Cohen, supra, at 739.
We believe that this trust relationship survived the passage of
ANCSA. This circuit "appears to recognize a federal trust
responsibility comparable to that toward other Indians, even
after passage of the Alaska Native Claims Settlement Act."
William Canby, American Indian Law 274-75 (2d ed. 1988)
(citing Alaska Chapter, Associated General Contractors v.
Pierce, 694 F.2d 1162, 1168-69 n.10 (9th Cir. 1982)).
The district court found that ANCSA "effected a significant
change in relationship as between the federal government and
Alaska Natives." The court emphasized that the corporate
model introduced by ANCSA constituted "a significant dimi-
nution of the power of Congress and the Executive agencies
over Alaska Native tribes," and that Congress's policy in
enacting ANCSA "strongly suggests a shift from government
superintendence to self regulation." The district court con-
cluded that "[t]he federal government no longer exercises that
level of active superintendence necessary to evidence an
intent to be the dominant political institution in the area in
question to the exclusion of the state."
[13] As a threshold matter, we reject the notion that federal
supervision must be "dominant" in order to satisfy the super-
intendence prong of the Indian country test. This "dominant"
standard appears to have been determinative in the district
court: the court relied on the introduction of state control over
Native corporations to support its conclusion that federal
superintendence had been displaced by ANCSA. But the
introduction of state supervision over certain aspects of Indian
life does not eviscerate Indian country. "[A]t times Congress
14930
has retained Indian country status but has delegated partial
jurisdiction to states over areas of Indian country or over spe-
cific legal subjects." Cohen, supra, at 361. An example of
such congressional action is Public Law 280, which grants
certain states extensive criminal and civil jurisdiction over
Indian country. See 18 U.S.C S 1162 (criminal jurisdiction);
28 U.S.C. S 1360 (civil jurisdiction). Although this law
"radically shifts the balance of jurisdictional power toward the
states and away from the federal government . . . .[it does
not] terminate the trust relationship between the tribes and the
federal government." Canby, supra, at 176. Courts have deter-
mined that tribal jurisdiction -- and thus Indian country --
exists in states to which Public Law 280 applies. See Bryan
v. Itasca County, 426 U.S. 373, 388-89, 96 S. Ct. 2102, 48 L.
Ed. 2d 710 (1976); see also David Case, Alaska Natives and
American Laws 439 (1984) ("[E]ven P.L. 280 does not
deprive a tribe of continuing (although concurrent) tribal
jurisdiction"). This analysis indicates that the litmus test of
federal superintendence is whether the federal government
has abandoned its trust responsibilities, rather than whether
the state government has been injected into tribal affairs.
[14] Any law terminating the federal trust relationship with
a Native tribe or organization must do so clearly and explic-
itly. Cohen, supra, at 224. ANCSA contains no such state-
ment; in fact, it is clear that it did not extinguish federal
superintendence of Alaska Natives. Therefore, the federal
government continues to execute its trust responsibilities
toward Alaska Natives.
[15] First, the plain language and legislative history of the
statute evince Congress's intent to maintain federal superin-
tendence over Alaska Natives. While the Act promotes Native
autonomy and disavows any "lengthy wardship or
trusteeship," 43 U.S.C. S 1601(b), Congress declared that
ANCSA did not "relieve, replace, or diminish any obligation
of the United States or of the State or [sic] Alaska to protect
and promote the rights or welfare of Natives . . . . " 43 U.S.C.
14931
S 1601(c). Additionally, Congress rejected an earlier version
of the bill that would have transferred federal responsibilities
for Alaska Natives to state authorities. See Alaska Native
Claims Settlement Act of 1970, S. 1830, 91st Cong., 2d Sess.
at S 4(b)(1) (1970).
[16] Second, ANCSA neither prohibits nor discontinues the
provision of federal services to Alaska Natives. Payments
made under the Act do not "substitute for any governmental
programs otherwise available to the Native people of Alaska
. . . ." 43 U.S.C. S 1626(a). Indeed, Alaska Natives remain eli-
gible for federal benefit programs after ANCSA:
ANCSA did not end federal benefits and protections
for Alaska Natives; it concerned only their lands and
land-related claims. Natives in Alaska continue to be
eligible for and receive assistance under federal pro-
grams available to Indians throughout the United
States. All major Indian legislation since ANCSA
specifically has included Alaska Natives or their vil-
lages or corporations.
Cohen, supra, at 766. Examples of such major legislation
include the Indian Self-Determination and Education Assis-
tance Act, 25 U.S.C. S 450b(e), the Indian Health Care
Improvement Act, 25 U.S.C. SS 1603(c)-1603(d), the Tribally
Controlled Community College Assistance Act, 25 U.S.C.
S 1801(2), and the Indian Child Welfare Act, 25 U.S.C.
SS 1903(3), 1903(8).4 Taken together, this patchwork of bene-
_________________________________________________________________
4 The State of Alaska has identified four acts of Congress that do not
specifically define Alaska Native corporations as "Indians" or ANCSA
land as "Indian land." In fact, only the Indian Gaming Regulation Act, 25
U.S.C. S 2701 et seq., defines "Indian lands" in a way that may not
encompass ANCSA lands, see 25 U.S.C. S 2703(4)(B), and only the
Indian Land Consolidation Act, 25 U.S.C. S 2201 et seq., defines "tribe"
in a way that may not include Alaska Native corporations, see 25 U.S.C.
S 2201(1). The Indian Law Enforcement Reform Act, 25 U.S.C. S 2801 et
14932
fit programs demonstrates a continuing intent by Congress to
maintain federal superintendence over Alaska Natives.
[17] Third, the fact that ANCSA transferred title to settle-
ment lands to corporate entities does not appear to have extin-
guished federal superintendence over Alaska Natives. The
House Report accompanying ANCSA suggests that the Act
significantly diminishes federal supervision over Native cor-
porations: "The regional corporations and the village corpora-
tions will be organized under State law, and will not be
subject to Federal supervision except to the limited extent
specifically provided in the bill." H.R. Rep. No. 523, 92d
Cong., 1st Sess., reprinted in 1971 U.S.C.C.A.N. 2192, 2199.
However, subsequent legislative action belies this intention
and indicates that Congress continues to exercise federal
superintendence over Native corporations. "Since the enact-
ment of ANCSA, Congress has not excluded Alaska Natives
from any programs available to other Native Americans and,
indeed, specifically has included Alaska Natives, villages, and
corporations among those eligible for programs under all new
major Indian legislation." Cohen, supra, at 769 (emphasis
added).
_________________________________________________________________
seq., adopts the definition of "Indian country " set forth in 18 U.S.C.
S 1151 -- the very statute that we interpret today to contemplate Alaska
Natives as dependent Indian communities. See 25 U.S.C. S 2801(4). The
only other statute to which the State of Alaska cites can be read to support
the notion that Congress continues to exercise superintendence over
Alaska Natives. The National Indian Forest Resources Management Act,
25 U.S.C. S 3101 et seq., establishes an Alaska Native technical assistance
program designed to promote the sustained yield management of Indian
forest services. See 25 U.S.C. S 3112(a). The federal government provides
this support directly to ANCSA corporations, implicitly recognizing the
essentially Native character of such corporations.
Even if we were to read these four statutes as suggesting a disconnect
between ANCSA corporations and Alaska Natives, we are not persuaded
that they overcome the evidence of continuing federal superintendence
over Alaska Natives that is contained in the major legislative initiatives
affecting Indians.
14933
[18] Furthermore, the Native corporations themselves are
subject to federal controls that have not been imposed upon
the general corporate community. Corporate articles and stock
ownership are regulated by the federal government. See, e.g.,
43 U.S.C. S 1606(e) (requiring that Secretary of Interior must
approve Native corporations' articles of incorporation and
bylaws and that such articles and bylaws may not be amended
for five years without Secretary's approval); 43 U.S.C.
S 1606(h)(1)(B) (providing that stock in Native corporations
is inalienable at corporations' election); 43 U.S.C.S 1606(h)
(2)(C) (providing that only Natives may own voting shares of
stock); 43 U.S.C. S 1606(h)(2)(B) (granting Native regional
corporations right of first refusal to shares transferred to a
non-Native pursuant to intestate succession); 43 U.S.C.
S 1606(h)(3)(D)(i) (corporation may amend its bylaws to give
corporation the right to buy any stock offered for sale by a
stockholder). Additionally, Native corporations may place
their land in a "land bank," which entitles the corporation to
various tax benefits. 43 U.S.C. S 1636.
[19] Congress did provide Native corporations with the
power to opt out of these supervisory controls, see 43 U.S.C.
S 1629c(b) (alienability restrictions continue in perpetuity
unless rescinded by Native corporation), and the decision to
place land in a "land bank" is at the corporations' discretion.
43 U.S.C. S 1636. But these provisions do not indicate a clear
congressional intent to terminate federal superintendence over
Native corporations. Instead, when viewed in conjunction
with the federal assistance provided to the members of these
corporations, these provisions at most reflect the general
ambiguity of ANCSA's effect on claims of Indian country in
Alaska. This ambiguity has been recognized by Congress:
"No provision of this Act (the Alaska Native Claims Settle-
ment Act Amendments of 1987) . . . or change made by. . .
this Act in the status of land shall be construed to validate or
invalidate or in any way affect . . . any assertion that Indian
country . . . exists or does not exist within the boundaries of
the State of Alaska." Pub. L. No. 100-241 S 17(a)(2) (1988),
14934
101 Stat. 1814. Because statutes affecting Indian rights "are
to be liberally construed, doubtful expressions being resolved
in favor of the Indians," Alaska Pacific Fisheries, 248 U.S. at
89, we conclude that the transfer of title to Native corpora-
tions -- and not to tribes -- does not extinguish federal super-
intendence over the Alaska Natives who comprise those
corporations.
[20] Perhaps the strongest objection to this conclusion is
that ANCSA appears to implement, in no uncertain terms, a
policy of Native self-determination that is fundamentally at
odds with the paternalistic echoes of the trust relationship. As
noted above, ANCSA promotes Native autonomy and dis-
avows any "lengthy wardship or trusteeship." 43 U.S.C.
S 1601(b). How can this intent be reconciled with a continu-
ing design to exercise federal superintendence over Alaska
Natives?
[21] The answer is found in the unique relationship that
Native Americans share with the federal government. On July
8, 1970, President Nixon enunciated a federal policy toward
Indians that continues to this day: self-determination without
termination of the trust relationship. The President "called for
rejection of the extremes of termination and paternalism: ter-
mination because it ignored the moral and legal obligations
involved in the special relationship between tribes and the
federal government, and paternalism because it resulted in
`the erosion of Indian initiative and morale.' " Cohen, supra,
at 186 (quoting Richard M. Nixon, Special Message to the
Congress on Indian Affairs (July 8, 1970)). The reconciliation
of self-determination and superintendence is reflected in the
Indian Self-Determination and Education Assistance Act of
1975, where Congress declared its commitment
to the maintenance of the Federal Government's
unique and continuing relationship with, and respon-
sibility to, individual Indian tribes and to the Indian
people as a whole through the establishment of a
14935
meaningful Indian self-determination policy which
will permit an orderly transition from the Federal
domination of programs for, and services to, Indians
to effective and meaningful participation by the
Indian people in the planning, conduct, and adminis-
tration of those programs and services.
25 U.S.C. S 450a(b). The federal government is fulfilling, not
abandoning, its trust responsibilities when it facilitates Indian
self-determination. Moreover, as expressed by the Self-
Determination Act, Indian self-determination involves
increased participation of Native Americans in the administra-
tion of federal programs, not the elimination of those pro-
grams nor the removal of federal officials from a supervisory
role over those programs.
[22] We believe that ANCSA also implemented the federal
policy of self-determination without termination of the trust
relationship. Accordingly, we find that Native self-
determination and ongoing federal superintendence may coex-
ist, and that this is precisely the federal-tribal relationship that
was introduced by ANCSA.
In sum, we hold that ANCSA neither eliminated a federal
set aside for Alaska Natives, as such, nor terminated federal
superintendence over Alaska Natives. As a result, Indian
country still may exist in Alaska.
DOES VENETIE OCCUPY INDIAN COUNTRY?
Having determined that ANCSA does not extinguish Indian
country in Alaska, we must ask: Is Venetie a dependent
Indian community? The district court found that prior to
ANCSA, the Venetie Reservation had been set aside for the
Neets'aii Gwich'in as Alaska Natives, and its inhabitants
were subject to the active superintendence of the federal gov-
ernment. Its conclusion that Venetie no longer constitutes a
14936
dependent Indian community rests on the changes effected by
ANCSA.
We have determined that ANCSA does not extinguish
Indian country in Alaska as a general matter. This conclusion
changes the import of the district court's factual findings;
when we accord a broad interpretation to set aside and super-
intendence, the district court's factual findings actually sup-
port the determination that the land owned by Venetie is
Indian country. We proceed to illustrate this point by examin-
ing the relevant factors of our six-pronged inquiry, mindful of
the overarching prerequisites to a dependent Indian commu-
nity -- set aside and superintendence.5
A. The Nature of the Area
[23] Venetie owns the former Venetie Reservation, an area
of 1.8 million acres that is the heart of the land traditionally
used by the Neets'aii Gwich'in. This land is isolated and
undeveloped; it is not accessible by surface roads or railroads.
We accept the district court's conclusion that "the Neets'aii
Gwich'in have, since before the appearance of non-natives,
inhabited a reasonably well-defined territory to the virtual
exclusion of other people; and in modern times have occupied
much of that same territory, in the form of the Venetie Reser-
vation. They still occupy this same land."6 The district court
also found that the land owned by Venetie is well suited to the
Tribe's subsistence lifestyle. These determinations support the
conclusion that Venetie has a special "use and occupancy"
relationship to the land at issue.
_________________________________________________________________
5 The factual predicate for the following discussion is drawn from the
district court's tribal status and Indian country opinions in this case. The
district court's factual findings are not clearly erroneous, and we accept
them without objection. Our difference with the district court concerns the
legal significance of these factual findings.
6 This conclusion is contained in the district court's tribal status decision
in the Venetie case, wherein the court held that Venetie qualifies as an
Indian tribe. This holding is not challenged on appeal.
14937
B. The Relationship of the Area Inhabitants to Indian Tribes
and the Federal Government
[24] Venetie is home to the Neets'aii Gwich'in, and its
inhabitants are, almost exclusively, members of that Tribe.
The near-perfect correlation between area inhabitants and
tribal membership indicates the strong ties between the land,
its people, and the Tribe.
[25] The area inhabitants are similarly bound to the federal
government. Venetie has enjoyed a long history of interaction
with federal officials. Since the early part of this century, the
Bureau of Indian Affairs has been involved in the administra-
tion of educational and health services in Venetie. The BIA
operated a school at Arctic Village until 1970 and at Venetie
until 1984. Venetie obtained one of the first approved consti-
tutions under the Indian Reorganization Act. The district court
acknowledged that the inhabitants of Venetie maintain
"significant contacts and relationships" with numerous federal
agencies. And as the district court recognized, the fact that the
Tribe has established ties to the State of Alaska "is not incon-
sistent with a finding of Indian Country if all of the elements
of such are proven." See John, 437 U.S. at 652 n.23 ("[T]he
provision of state services to Indians would not prove that the
Federal Government ha[s] relinquished its ability to provide
for these Indians under its Article I power.").
C. The Established Practice of Government Agencies
Toward the Area
Despite the longstanding relationship between Venetie and
the federal government and the continuing interaction
between the Tribe and federal agencies, the district court
found that the federal government's role in providing various
services to the area had diminished in two principal respects.
First, "federal largess is now available in the form of grants
and other programs which are administered by Native people
themselves with general oversight by agencies as opposed to
14938
direct agency services to the tribe." Second, the State of
Alaska has played a more pervasive role in providing these
services.
Undoubtedly, the practice of federal agencies toward Vene-
tie has changed since ANCSA was enacted in 1971. In many
respects, the federal government has been replaced by either
the State or the Tribe itself as the direct provider of services.
If the litmus test of federal superintendence was that such
superintendence be "pervasive," meaning that it be the
"dominant political institution" in the area as compared to the
state, the diminished federal role would undermine the con-
clusion that federal superintendence over Venetie continues
today. But "dominance" is not the proper benchmark of super-
intendence. As explained supra, the litmus test of federal
superintendence is whether the federal government has aban-
doned its trust responsibilities, not whether the state govern-
ment has been injected into tribal affairs.
On the record before us, it is clear that the federal govern-
ment continues to be involved in the affairs of the Neets'aii
Gwich'in. For example, as noted by the district court,
"[f]ederal grants have been approved for an airport at Arctic
Village, a 29-unit housing project at Venetie, water and
wastewater systems at Arctic Village and Venetie, housing
renovation at Venetie, and a self-governance project. There
were other similar federal grants as well." This supports a
finding that Venetie has met the federal superintendence
requirement of the dependent Indian community test.
D. The Degree of Federal Ownership of and Control over
the Area
[26] ANCSA terminated federal ownership of the Venetie
Reservation. Today, Venetie owns its land in fee simple, and
the federal government exercises few controls (if any) over
Venetie's territory. As noted above, however, tribal owner-
ship of land in fee does not defeat a finding of Indian country.
14939
Cf. Sandoval, 231 U.S. at 48; Narragansett, 89 F.3d at 918.
It does mean that the Tribe must produce alternative evidence
of federal superintendence over Native affairs in the territory.
Based on our findings in subsections B and C, supra, we con-
clude that the Tribe has met this burden.
E. The Degree of Cohesiveness of the Area Inhabitants
[27] The high degree of cohesiveness among the inhabi-
tants of Venetie is uncontested. We have no reason to depart
from the district court's finding that
the Neets'aii Gwich'in are a cohesive community.
All but a few residents of the area (notably school
teachers) are Alaska Natives and members of the
tribe. They have at all times relevant to this case,
right down to the present, voluntarily come together
for purposes of forming their own traditional coun-
cils which have provided for the protection and wel-
fare of the whole community.
F. The Extent to Which the Area Was Set Aside for the Use,
Occupancy, and Protection of Dependent Indian Peoples
The district court correctly acknowledged that when the
Neets'aii Gwich'in obtained a reservation in 1943,"this land
was set aside for [them] as a Native people. " However, the
district court concluded that the land is no longer set aside for
the use and occupancy of Alaska Natives, as such. This con-
clusion was based upon ANCSA's extinguishment of the
Venetie Reservation and the Act's transfer of land not to the
Neets'aii Gwich'in Tribe but to a corporate entity. As indi-
cated in our general discussion of ANCSA's impact upon the
federal set aside requirement, supra, we disagree with this
conclusion. We believe that the village corporations estab-
lished under ANCSA, while business entities, maintain a dis-
tinctly Native identity. Accordingly, we conclude that land set
14940
aside for such corporations qualifies as land set aside for the
use, occupancy, and protection of Alaska Natives, as such.
Venetie presents an especially compelling illustration of
this conclusion. Section 1618(b) of ANCSA permits a village
corporation to acquire title to "any reserve set aside for the
use or benefit of its stockholders or members prior to Decem-
ber 18, 1971." In exchange, the village corporation forfeits
any claim to land or funds distributed by the regional corpora-
tion under ANCSA. When the members of the Venetie and
Arctic Village corporations voted to exercise their rights
under S 1618(b), they received a parcel of land that mapped
the former reservation of their common Tribe -- the Neets'aii
Gwich'in. Title to this former reserve was subsequently trans-
ferred to Venetie, effecting the result made possible by
S 1618(b): reunification of the Tribe and its reserve land.
We believe that this result strengthens the conclusion that
a federal set aside for the use and occupancy of the Neets'aii
Gwich'in, as such, has been maintained. Section 1618(b) may
use the general corporate form of ANCSA, but its underlying
purpose is to permit Alaska Natives to retain the historic con-
nection between tribes and their lands. Corporations may be
the vehicle through which this goal is accomplished under
S 1618(b), but this section defines eligible land according to
the pre-ANCSA claims of corporation members. The reunifi-
cation of Venetie with its former reservation land demon-
strates that the land has been set aside for Indians, as such --
an assertion that is somewhat less straightforward where
Native corporation land does not share such a close associa-
tion with former tribal land.
[28] The foregoing application of our six-factor inquiry
indicates that Venetie meets the set aside and superintendence
requirements of the dependent Indian community test.
Although the federal government no longer owns or controls
the former Venetie Reservation, every other factor of our
inquiry supports the conclusion that Venetie occupies Indian
14941
country: Venetie has a special "use and occupancy " relation-
ship to its land; the inhabitants of Venetie maintain
"significant contacts and relationships" with numerous federal
agencies; the federal government continues to be involved in
the affairs of the Neets'aii Gwich'in; the high degree of cohe-
siveness among its inhabitants indicates that Venetie is a
strong and distinct Native community; and the reunification of
Venetie with its former reservation land via a statutory mech-
anism provided by Congress demonstrates that the land has
been set aside for Indians, as such. We therefore conclude that
Venetie is a dependent Indian community and that, accord-
ingly, its territory qualifies as Indian country.
CONCLUSION
This nation has a special relationship with and responsibil-
ity toward Native American citizens. The Alaska Native
Claims Settlement Act is a unique and innovative attempt to
meet that responsibility. It marks a genuine endeavor to facili-
tate Native self-determination by providing for the direct
involvement of Alaska Natives in the management of their
affairs. This policy of self-determination fulfills the special
relationship between Alaska Natives and the federal govern-
ment; it does not terminate that relationship. Absent a clear
and unequivocal expression by Congress, we will not imply
that such termination has occurred.
ANCSA does not contain a definitive statement expressing
its effect upon Indian country in Alaska. In fact, various ele-
ments of ANCSA indicate that a federal set aside was con-
veyed by the Act and that federal superintendence of Alaska
Natives was preserved under the Act. Accordingly, we hold
that ANCSA did not extinguish Indian country in Alaska, and
that Venetie, having demonstrated that it qualifies as a depen-
dent Indian community, occupies its territory as Indian coun-
try.
14942
The judgment of the district court is REVERSED and this
case is REMANDED to the district court to determine
whether Venetie has the power to impose a tax upon a private
party where the State of Alaska will ultimately pay the
obligation.7
_________________________________________________________________
FERNANDEZ, Circuit Judge, concurring:
Because judges are historically minded and experts at ana-
logical reasoning, it is very tempting to treat ANCSA as just
another statute to be adjudged as if it were a mere continua-
tion of prior Indian policy. A continuation, that is, if that pol-
icy can really be called continuous. But ANCSA was intended
to be and was something very different. It attempted to pre-
serve Indian tribes, but simultaneously attempted to sever
them from the land; it attempted to leave them as sovereign
entities for some purposes, but as sovereigns without territo-
rial reach. Thus, the land and the vast sums of money made
available did not go to the tribes. It went into mere private
corporations.
Those corporations were to be separate from the tribes,
could sell land, and could even be taxable eventually,
although the land could also be placed in tax-free preserves,
just as anyone else's land can be under proper circumstances.
The tribes were no longer land based; they were member
based. In short, Congress wanted to provide for "maximum
_________________________________________________________________
7 In Venetie I, Venetie argued that sovereign immunity shielded it from
suit and that, in the alternative, the tribal abstention doctrine precluded the
federal court from hearing Alaska's claim until it was adjudicated in tribal
court. The Venetie I court declined to reach either argument on the ground
that both contentions depended upon a preliminary finding that Venetie
was a tribe.
On remand, the district court held that Venetie is in fact a tribe. How-
ever, Venetie asserts neither sovereign immunity nor the tribal abstention
doctrine on this appeal.
14943
participation by Natives in decisions affecting their rights and
property, without establishing any permanent racially defined
institutions, rights, privileges, or obligations, without creating
a reservation system or lengthy wardship or trusteeship, and
without adding to the categories of property and institutions
enjoying special tax privileges . . ." in Alaska. 43 U.S.C.
S 1601(b). The tribes would continue as sovereigns, but there
would be no more Indian country because the land would not
be set aside by the United States "for the use of the Indians
as such." Pelican v. United States, 232 U.S. 442, 449, 34 S.
Ct. 396, 399, 58 L. Ed. 676 (1914). Nor would it remain
"under the superintendence of the government. " Id.; see also
Op. Sol. Gen. of Dep't of Interior, M-36975, 131-33 (Jan. 11,
1993).
Let me put it a slightly different way. The reason that the
old Indian country test will not work is that Congress's new
conception was to maintain tribal sovereignty and to maintain
a federal interest in and protection of Indians and tribes, but
to separate the land, and an almost billion-dollar fund, from
the tribes themselves. That left a potent resource in the hands
of the Indian peoples. It also left tribal sovereignty intact, but
it simultaneously precluded that sovereignty from being
reified in the form of control over land.
In so doing, Congress disassociated the land from all other
claims, including Indian country claims. It did so explicitly
when it extinguished all claims "based on claims of aboriginal
right, title, use, or occupancy of land . . . or . .. based on any
statute or treaty . . . ." 43 U.S.C. S 1603(c). The very idea of
Indian country is, of course, a notion incorporated into a stat-
ute. See 43 U.S.C. S 1151. Moreover, the assertion of S 1151
sovereignty over territory is a claim which is necessarily
based upon aboriginal title, statute, or treaty. Both were abol-
ished. As we have previously recognized, the provenance of
ANCSA was unique, so even the old rule of construction of
statutes in favor of Indians "operates with less force." United
14944
States v. Atlantic Richfield Co., 612 F.2d 1132, 1139 (9th Cir.
1980). That uniqueness is why the old tests just do not work.
Of course, the land deeded to the private corporations was
for the benefit of their Indian stockholders, just as the money
was for their benefit. Of course, those same Indian stockhold-
ers tended to be members of tribes, though they did not need
to be. Of course, the government retained its interest in the
tribes, as such, and in the Indian peoples themselves. Perhaps
not every group could show cohesiveness, but it certainly is
true that the land was set aside for Indian peoples ab initio,
although in no sense was most of it for their exclusive use,
occupancy, or protection any more than land owned by any
other corporate entity is for the use, occupancy, or protection
of its members. But all of that is really rather irrelevant under
the new regime. If ANCSA meant anything at all, it meant
that the tribes, as such, would no longer have control or sover-
eign power over the land. They would only have sovereignty
over their members. As far as the land was concerned, the
regular state and federal political entities would have and
retain the necessary power. In short, it was no longer neces-
sary to explicate and mull over previous Indian country con-
cepts. That was the promise of the new era. When Congress
did all of that, it created something rather different, rather
unique, rather simple, and yet rather daedalian.
We have been asked to confuse matters by applying out-of-
date theories to a truly new concept of Indian relationships
and sovereignty. We have been asked to blow up a blizzard
of litigation throughout the State of Alaska as each and every
tribe seeks to test the limits of its power over what it deems
to be its Indian country. There are hundreds of tribes, and the
litigation permutations are as vast as the capacity of fine
human minds can make them. They can include claims to
freedom from state taxation and regulation, claims to regulate
and tax for tribal purposes, assertions of sovereignty over vast
areas of Alaska, and even assertions that tribes can regulate
and tax the various corporations created to hold ANCSA land.
14945
The latter assertion would give the tribes the power to control,
regulate, and tax those corporations out of existence and
would provide a fruitful area for intertribal conflict. This is no
imaginative parade of horribles. In the cases before us today,
one tribe, Kluti Kaah, seeks sovereignty over an area as unlike
Indian country as one could imagine. The other seeks sover-
eignty, and has been made sovereign, over a piece of the State
of Alaska about as large as the State of Delaware. Further-
more, both Kluti Kaah and Venetie assured us at argument
that tribes, as they see it, do have the power to tax and regu-
late the myriad of private corporations which received land
under ANCSA.
Were we writing on a clean slate, I would eschew the
tribe's request and would avoid creating the kind of chaos that
the 92nd Congress wisely sought to avoid. Alas, it is too late
because we have already taken the position that ANCSA did
not eliminate Indian country in Alaska. We have directed that
decisions be made on a case-by-case basis. See State of
Alaska v. Native Village of Venetie, 856 F.2d 1384, 1390-91
(9th Cir. 1988) (Venetie I); cf. Native Village of Tyonek v.
Puckett, 957 F.2d 631, 634 (9th Cir. 1992). It is unfortunate
that what could have been a tessellation is to be a crazy quilt
instead. But if we are to have that quilt, I agree that Venetie's
territory is Indian country, if any still exists in Alaska.1 Need-
less to say, I do not embrace that result with the gusto shown
by the majority, and I do not accept all of the majority's rea-
soning.
Nevertheless, under the compulsion of our cases, I concur
in the result.
_________________________________________________________________
1 Of course, I recognize that there is an exception. One reservation was
preserved. See 43 U.S.C. S 1618(a).
14946
the end