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Nenana Fuel Co. v. Venetie (7/24/92), 834 P 2d 1229
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
NENANA FUEL CO., INC. )
Cross-Appellee, ) Supreme Court File Nos.
NATIVE VILLAGE OF VENETIE, a )
Native Corporation and NATIVE )
VILLAGE OF VENETIE TRIBAL )
NENANA FUEL CO., INC., ) Supreme Court File No.
) Superior Court File No.
v. ) 4FA-87-354 Civil
NATIVE VILLAGE OF VENETIE, a ) O P I N I O N
Native Corporation, and NATIVE)
VILLAGE OF VENETIE TRIBAL )
______________________________) [No. 3869 - July 24, 1992]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Marilyn J. Kamm, Call,
Barrett & Burbank, Fairbanks, for
Appellant/Cross-Appellee in File Nos. S-
3709/S-3721, and Appellant in File No. S-
4299. Judith K. Bush, William Caldwell and
Carol Daniel, Alaska Legal Services
Corporation, Fairbanks, for Appellees/Cross-
Appellants in File Nos. S-3709/S-3721 and
Appellees in File No. S-4299. D. Rebecca
Snow, Assistant Attorney General, Fairbanks,
Douglas M. Mertz, Assistant Attorney General,
and Douglas B. Baily, Attorney General,
Juneau, for Amicus Curiae State of Alaska.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
MOORE, Justice, concurring.
RABINOWITZ, Chief Justice, dissenting.
This appeal comes after the superior court set aside a
default judgment against the Native Village of Venetie Tribal
Government (Tribal Government) and the Native Village of Venetie
(Village Corporation). The court determined that the Tribal
Government was a sovereign entity and therefore entitled to
sovereign immunity. The court found that the Village Corporation
was also a sovereign entity, but that it had waived its immunity
when it adopted a "sue and be sued"clause in its corporate
charter. Judge Greene stayed Nenana Fuel's action against the
Village Corporation, ordering that it exhaust its tribal court
remedies before proceeding in state court.
Nenana Fuel appealed the court's finding that the
Tribal Government and the Village Corporation were entitled to
sovereign immunity. Nenana Fuel argued in the alternative that
the Tribal Government waived its sovereign immunity when it
agreed to the remedies on default clause contained in a note and
security agreement signed by the parties. Moreover, Nenana Fuel
contended that this waiver pertained to Venetie's tribal courts,
and that the order to exhaust tribal remedies was therefore
improper. The Tribal Government and the Village Corporation
cross-appealed the superior court's ruling that the "sue and be
sued" clause of the Village Corporation's corporate charter was
sufficient to waive its sovereign immunity.
Nenana Fuel subsequently obtained a stay of appeal,
claiming that it had discovered new evidence which indicated that
the Tribal Government and the Village Corporation had
misrepresented their history to the court, and that they were not
sovereign entities. This evidence consisted of documents and
other evidence attached to the State of Alaska's Motion for
Summary Judgment in an unrelated federal case, State of Alaska ex
rel. Yukon Flats School Dist. v. Native Village of Venetie, No.
F87-051 CIV (D. Alaska, motion filed July 6, 1990). Based on
this new evidence, Nenana Fuel filed a motion for relief from the
superior court's earlier decision. The trial court denied that
Nenana Fuel appeals that decision. Its appeal has been
consolidated with the other issues pending in this litigation.
II. FACTS AND PROCEEDINGS
Nenana Fuel sold fuel to the Tribal Government and
Village Corporation in September 1984, when Venetie was expanding
the airstrip at Arctic Village. The fuel was used to power
equipment used on the site. The Tribal Government and the
Village Corporation executed a Promissory Note and Security
Agreement for the payment due Nenana Fuel for the fuel. The
Tribal Government and the Village Corporation failed to pay
Nenana Fuel as agreed in the promissory note. After
unsuccessfully attempting to obtain possession of the collateral
provided for in the Security Agreement, Nenana Fuel sought relief
in the superior court.
At trial, both Nenana Fuel and the superior court
accepted the representations made by the Tribal Government and
the Village Corporation as to their history. The following
history was therefore unquestioned. In 1940, the Secretary of
the Interior approved the Village's constitution pursuant to 16
of the Indian Reorganization Act (IRA), 25 U.S.C. 461 et seq.
(1982), 48 Stat. 988 (1934), and the Tribal Government has
functioned since that time under this federal authority. In
1940, the Village also incorporated under 17 of the IRA, which
empowers it through its charter, constitution and bylaws to
transact business for the village.
In 1943, at the request of the people from the Native
Villages of Venetie, Arctic Village, Christian Village and
Robert's Fish Camp, the Secretary of the Interior withdrew the
1.4 million acre Venetie reservation for the use and occupancy of
the Natives of those villages, pursuant to the authority vested
in him by 48 U.S.C. 358(a) (repealed 1976). Congress revoked
this reservation in 1971 by enacting 19(a) of the Alaska Native
Claims Settlement Act (ANCSA). See 43 U.S.C. 1618 (1988).
Rather than participate in the regional corporation
scheme established by ANCSA, the Natives of Venetie and Arctic
Village elected to take fee title to their reservation lands
pursuant to 19(b) of ANCSA, 43 U.S.C. 1618(b) (1988). Upon
the federal government's conveyance of these lands in December
1979, the ANCSA village corporation deeded the lands to the
Tribal Government. The Tribal Government has owned the former
reservation lands in fee since that time.
B. Procedural Background
In February 1987, Nenana Fuel filed a complaint in
superior court alleging that the Village Corporation and Tribal
Government owed it $134,128.17 plus interest and costs under the
promissory note and security agreement signed by the parties. In
June 1987, the superior court entered a default judgment against
When the judgment was not satisfied, the superior court
ordered a judgment debtor examination of both the Tribal
Government and the Village Corporation. Neither defendant
appeared for the examination. Pursuant to Nenana Fuel's motion,
the court then entered an order to show cause why the Tribal
Government and the Village Corporation should not be held in
contempt for failing to appear at the judgment debtor
The Tribal Government and the Village Corporation filed
a memorandum in opposition to Nenana Fuel's motion for an order
to show cause, arguing that the superior court lacked subject-
matter jurisdiction over the controversy due to tribal sovereign
immunity. Nenana Fuel replied that the Tribal Government and the
Village Corporation had waived any sovereign immunity by failing
to raise that defense during the pendency of the underlying suit,
and that the Village Corporation had also waived any sovereign
immunity by including a "sue and be sued"clause in its corporate
The Tribal Government and the Village Corporation then
moved to set aside the default judgment against them. They also
moved to dismiss Nenana Fuel's complaint, claiming sovereign
immunity and insufficiency of process. In April 1988, the trial
court ruled that the defendants were entitled to sovereign
immunity. It then dismissed the complaint as to the Tribal
Government. However, the court found that the "sue and be sued"
clause of the Village Corporation's charter was sufficient to
waive the Village Corporation's sovereign immunity. The court
ruled that the effect and extent of that waiver would be
determined after further briefing and argument by the parties.
Nenana Fuel argued that the Village Corporation's
waiver was a general one, and that suit in state superior court
was therefore proper. The Village Corporation contended that the
"sue and be sued" clause must be interpreted by the Tribal
Government. If it did constitute a waiver, the clause would
permit suit only in its own tribal courts.
After this court's May 1988 decision in Native Village
of Stevens v. Alaska Management & Planning, 757 P.2d 32 (Alaska
1988), the superior court reinstated the Tribal Government as a
party to the action and again heard argument as to whether the
Tribal Government was a sovereign entity. In its supplemental
brief on this question, the Tribal Government claimed that,
because it had a constitution adopted pursuant to the IRA and a
reservation prior to the enactment of ANCSA, it was a self-
governing tribe entitled to sovereign immunity.
In March 1989, the superior court ruled that, even
after Stevens Village, the Tribal Government was a sovereign
entitled to immunity from suit. Because the court found that the
Tribal Government had not waived its immunity, it again dismissed
the case as to the Tribal Government. The court reaffirmed its
earlier ruling that the "sue and be sued"clause of the Village
Corporation's charter acted as a waiver of the Corporation's
In November 1989, the superior court set aside the
default judgments against both the Village Corporation and the
Tribal Government. The court dismissed the action against the
Tribal Government, on the basis of its ruling that the Tribal
Government possessed sovereign immunity. After asserting that it
had subject-matter jurisdiction over the lawsuit, and that it
therefore had the authority to resolve the issues of sovereign
immunity and the nature and effect of the "sue and be sued"
clause in the Village Corporation charter, the court then stayed
the action against the Village Corporation with the order that
Nenana Fuel exhaust its tribal court remedies.
Nenana Fuel appealed this decision. The Tribal
Government and the Village Corporation cross-appealed the
superior court's assertion of jurisdiction and determination that
the Village Corporation waived its sovereign immunity.
During the course of this appeal, Nenana Fuel learned
of documents filed by the State of Alaska in a federal district
court case, State of Alaska ex rel. Yukon Flats School Dist. v.
Native Village of Venetie, No. F87-051 CIV (D. Alaska, motion
filed July 6, 1990), which contradict some representations made
by Venetie concerning its history. Because the superior court's
earlier decision was based in part on the Tribal Government's
claim that it is an IRA organization and that its constitution
and bylaws were approved by the Secretary of the Interior in
1940, Nenana Fuel requested relief from the court's ruling under
Civil Rule 60(b). The superior court denied that motion.
A. The Remedies on Default Clause Constitutes an
Express Waiver of Venetie's Sovereign Immunity
Nenana Fuel argues that the Remedies on Default clause
contained in the note and security agreement effected a waiver of
any sovereign immunity possessed by the Tribal Government and the
Village Corporation (collectively referred to as Venetie). That
On the occurrence of a default and after
any notice required . . . and in addition to
any remedies described in the Note, [Nenana
Fuel] . . . may:
(a) bring an action upon
. . .
(d) dispose of the
collateral in any commercially
reasonable manner and, in the event
of a deficiency, bring an action
against Debtors for that
. . .
(f) invoke any other
remedy provided by law or this
(g) invoke any
combination of these remedies
allowable under Alaska law.
Venetie argues that this clause contains no express waiver of its
immunity, and that a waiver of sovereign immunity cannot be
implied.1 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58
(1978) (a waiver of sovereign immunity cannot be implied but must
be unequivocally expressed).
In Native Village of Eyak v. GC Contractors, 658 P.2d
756 (Alaska 1983), we held that a tribe waives its sovereign
immunity by agreeing to contract terms inconsistent with
sovereign immunity. Eyak had entered into a contract with GC
Contractors under which GC Contractors was to build a community
center for Eyak. Pursuant to an arbitration clause in the
contract, the parties submitted to arbitration a dispute
concerning Eyak's failure to pay money due under the contract.
The arbitrator awarded GC Contractors the full sum sought, and
rejected Eyak's argument that it would not be bound by any
arbitration decision on the grounds of sovereign immunity.
Adhering to the general rule that all provisions in a contract
should be found meaningful, we affirmed the superior court's
confirmation of the arbitration award. Id. at 760.
The United States Court of Appeals for the Ninth
Circuit reached the opposite result in Pan American Co. v. Sycuan
Band of Mission Indians, 884 F.2d 416, 418-20 (9th Cir. 1989),
holding that an arbitration clause in a management agreement
between an Indian tribe and the non-Indian operator of the
tribe's bingo enterprise did not constitute a waiver of the
tribe's sovereign immunity. We distinguished Pan American from
Eyak in Hydaburg Coop. Ass'n v. Hydaburg Fisheries, 826 P.2d 751
(Alaska 1992), however, noting that Pan American involved a
challenge to the tribe's authority to regulate affairs on its
reservation, and did not involve a suit to compel arbitration or
enforce an arbitration award. Id. at 754-55. We stated:
"Arguably, even under Pan American an agreement to arbitrate
disputes arising out of a contract constitutes a tribe's consent
to suit for the limited purposes of compelling arbitration or
enforcing an arbitration award." Id. at 754. We also noted that
"[t]his principle is well established in situations involving
foreign sovereigns." Id. (citing Restatement (Third) of the
Foreign Relations Law of the United States 456(2)(b) (1987)).
In the present case, the language of the Remedies on
Default clause in the parties' security agreement clearly
expresses a waiver of immunity. In the event of default, it
authorizes Nenana Fuel to "bring an action upon the Note" or to
invoke any other remedy "allowable under Alaska law." As we
stated in Eyak, all provisions in a contract should be found
meaningful to the extent possible. 658 P.2d at 760. We
therefore must read the Remedies on Default clause as expressly
waiving any sovereign immunity which Venetie might possess, and
referring actions based upon the contract to Alaska courts for
application of Alaska law. Accordingly, we find that neither the
Tribal Government nor the Village Corporation is entitled to
sovereign immunity in this case.
Because we find that the Remedies on Default clause
constitutes an express waiver of any sovereign immunity possessed
by Venetie, we do not consider whether the Tribal Government and
Village Corporation actually constitute sovereign bodies. For
the same reason, we need not examine the nature and effect of the
"sue and be sued"clause in the Village Corporation's charter.
B. The Superior Court Erred In Requiring Exhaustion
Of Tribal Court Remedies
The superior court ruled that it had jurisdiction over
this case because the Village Corporation had waived its
sovereign immunity. However, the court stayed the action against
the Village Corporation and ordered that Nenana Fuel exhaust its
tribal court remedies. In making this holding, the court invoked
the doctrine of comity enunciated in National Farmers Union Ins.
Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985), and refined
in Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987).
However, the consent to suit in the Remedies on Default
clause was in no sense limited to the tribal court. Venetie
agreed that Nenana Fuel could "bring an action upon the note"
without restricting jurisdiction to any particular forum.
Reference to Alaska law in part (g) of the clause makes it clear
that an action in Alaska's courts was within the contemplation of
the parties. Therefore we find that the superior court erred in
ordering Nenana Fuel to exhaust its remedies in tribal court.
Furthermore, we note that the superior court's order was
erroneous because there has been no showing that Venetie has a
functioning tribal court, and because there has been no showing
of what the jurisdiction of such an entity might be.2
REVERSED and REMANDED for proceedings in accordance
with this opinion.
MOORE, Justice, concurring.
I agree with the court's finding that the Remedies on
Default clause waived any sovereign immunity possessed by
Venetie. I also agree with the court's conclusion that the
superior court erred in ordering exhaustion of tribal court
remedies. In National Farmers Union Ins. Cos. v. Crow Tribe of
Indians, 471 U.S. 845, 856 (1985), the Supreme Court declared
that the examination of a tribal court's civil subject-matter
jurisdiction "should be conducted in the first instance in the
Tribal Court itself." The Court reiterated this doctrine in Iowa
Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 16 n.8 (1987), stating
that "[e]xhaustion is required as a matter of comity . . . ."
This comity "arises out of the _attributes of sovereignty_
possessed by Indian tribes, their _inherent powers_ of self-
government, and the _vital role_ of tribal courts in that
process." State of Alaska ex rel. Yukon Flats School Dist. v.
Native Village of Venetie, 856 F.2d 1384, 1388 (9th Cir. 1988)
(citing National Farmers, 471 U.S. at 851, 856 and LaPlante, 480
U.S. at 14-19).
Before a state court can require the exhaustion of
tribal court remedies, however, it must find that a legitimate
tribal court exists. See Chilkat Indian Village v. Johnson, No.
J84-024 Civ., order at 10 (D. Alaska, Jan. 11, 1990)
("[E]xhaustion will not be required where an assertion of tribal
jurisdiction . . . would be futile because of a lack of adequate
opportunity to challenge tribal jurisdiction, as where, for
example, a tribe lacks an operational court system."). For a
tribal court to be legitimate, it must serve a federally
recognized tribe which occupies a territory over which it has
governmental authority, see State of Alaska ex rel. Yukon Flats
School Dist. v. Native Village of Venetie, 856 F.2d at 1388, and
it must be established and able to entertain suits. See Chilkat
Indian Village v. Johnson, No. J84-024 Civ., slip op. at 19 (D.
Alaska, Oct. 9, 1990). A court established by a non-tribal
entity is obviously not legitimate, since a non-tribal entity may
not establish courts in which a state or federal court can
require the exhaustion of remedies.3 State of Alaska ex rel.
Yukon Flats School Dist., 856 F.2d at 1388.
I write separately, however, because I believe the
court has failed to address the crucial issue presented by this
appeal, whether Venetie is an Indian tribe entitled to sovereign
immunity. To date, no court has expressly considered whether a
Native group which once resided on a federally recognized
reservation in Alaska constitutes a sovereign Indian tribe after
the passage of ANCSA. The primary reasons for this reluctance
are the complexity and political nature of the questions
involved. The unfortunate result of this judicial avoidance is
that great uncertainty pervades the Natives' economic dealings
and jeopardizes beneficial legislation in the state legislature.
In an attempt to partially remedy this situation, I will confront
head-on the question of whether Venetie is an Indian tribe
entitled to sovereign immunity.
The superior court determined that Venetie meets the
criteria for sovereignty set forth in Native Village of Stevens
v. Alaska Management & Planning, 757 P.2d 32 (Alaska 1988) and
therefore falls within an exception to the general rule that
Native groups in Alaska are not sovereign tribes. The court
concluded that the Tribal Government has explicit powers of self-
government pursuant to Article 4 of its constitution.4 The court
further determined that Venetie meets the reservation requirement
of Stevens Village. It noted that the Secretary of the Interior
created the Venetie Reservation under the Alaska Indian
Reorganization Act and that the villagers protested its
termination when ANCSA became effective in 1971. Because the
ANCSA village corporations within the former Venetie Reservation
elected to acquire fee title to those lands and then to deed
title to the Tribal Government, the court concluded that ANCSA's
termination of the reservation did not abolish the sovereign
immunity previously held by the entire Venetie IRA organization.
Nenana Fuel contests this ruling on several grounds.
First, it claims that Venetie does not meet certain prerequisites
to sovereignty as described in Stevens Village. It also claims
that any sovereignty Venetie had was extinguished when its
reservation was terminated by ANCSA. Finally, Nenana Fuel
contends that Public Law 280 stripped the Village Corporation and
Tribal Government of any jurisdiction they may have had over this
It has long been recognized that American Indian tribes
outside Alaska are immune from suit due to their status as
sovereign governmental entities. See Three Affiliated Tribes of
Fort Berthold Reserv'n v. Wold Eng'g, 476 U.S. 877, 891-92
(1986); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978);
United States v. United States Fidelity & Guar. Co., 309 U.S.
506, 512-13 (1940). Courts also have consistently recognized
that Alaska Native groups have a very different history than
Natives in the lower forty-eight states; their interactions with
the federal government have been very different from those
between the government and tribes of other states. Metlakatla
Indian Community v. Egan, 369 U.S. 45, 50-51 (1962); Stevens
Village, 757 P.2d at 35; Atkinson v. Haldane, 569 P.2d 151, 154
(Alaska 1977). As the United States Supreme Court stated in
There were no Indian wars in Alaska,
although on at least one occasion, see
Gruening, The State of Alaska (1954), pp 36-
37, there were fears of an uprising. There
was never an attempt in Alaska to isolate
Indians on reservations. Very few were ever
created, and the purpose of these, in
contrast to many in other States, was not to
confine the Indians for the protection of the
white settlers but to safeguard the Indians
against exploitation. Alaskan Indians are
now voting citizens, some of whom occupy
prominent public office in the state
Metlakatla, 369 U.S. at 51. Because the land resources of Alaska
appeared limitless in the early days of the territory, "the
westward migration of white civilization which displaced the
tribes [of the lower forty-eight states] never occurred in
Alaska." Atkinson, 569 P.2d at 154. And, due to the non-hostile
history of Alaska's settlement, the federal government never
attempted to enter into treaties with Alaska Natives. Id. As a
result of these circumstances, most of the facts which created
the Indian law authority of the lower forty-eight states are
absent from cases involving Alaska Natives. See Metlakatla
Indian Community v. Egan, 362 P.2d 901, 920-21 (Alaska 1961),
partially rev'd 369 U.S. 45, 50-51 (1962).
We determined in Atkinson v. Haldane that the history
of the Metlakatla Indian Community was much more like the history
of Indian tribes of other states than that of other Alaska Native
groups, thereby entitling it to sovereign tribal status.
Atkinson, 569 P.2d at 154-55. Of particular importance to this
holding was the fact that the Metlakatlans continued to reside on
a federally recognized reservation even after the passage of
ANCSA, which abolished all other reservations in Alaska. Id.;
see 43 U.S.C. 1618(a) (1988). Our conclusion was further
compelled by the strong central tribal government established by
the Native community on the reserve. Atkinson, 569 P.2d at 156.
In Stevens Village, we again acknowledged the unique
status enjoyed by the Metlakatla community. 757 P.2d at 36. We
emphasized that "judicial recognition of tribal sovereign
immunity turn[s] on whether Congress, or the executive branch of
the federal government, ha[s] recognized the particular group in
question as a tribe." Id. at 34-35 (citing Atkinson, 569 P.2d at
161-63). After reviewing the history of the relationship between
the federal government and Alaska Natives up until the passage of
the Alaska Indian Reorganization Act in 1936, 49 Stat. 1250
(1936), we concluded that, with the exception of the
Metlakatlans, Congress had intended that Alaska Native groups not
be treated as sovereigns. 757 P.2d at 34-41. Further, we
determined that neither the IRA nor any subsequent congressional
action had signaled recognition of the sovereign status of Alaska
Native groups. 757 P.2d at 34.
In arriving at this conclusion, we observed that the
Indian Reorganization Act (IRA), 25 U.S.C. 461 et seq. (1982),
was "designed to encourage Indians to _revitalize their self-
government through the adoption of constitutions and bylaws and
through the creation of chartered corporations, with power to
conduct the business and economic affairs of the tribe._" 757
P.2d at 39 (quoting Mescalero Apache Tribe v. Jones, 411 U.S.
145, 151 (1973)). Since 16 of the IRA applied only to Indian
tribes or tribes residing on a reservation,5 the Act's
applicability to Alaska was very limited. Not only were Alaska
Native groups not tribes, but there were very few reservations in
existence in Alaska. In 1936, 1 of the Alaska Indian
Reorganization Act, 49 Stat. 1250 (1936), extended 17 of the
IRA to Alaska and also expanded the applicability of the Act:
groups of Indians in Alaska not
recognized prior to May 1, 1936 as bands or
tribes, but having a common bond of
occupation, or association, or residence
within a well-defined neighborhood, community
or rural district, may organize to adopt
constitutions and by-laws and to receive
charters of incorporation and federal loans
under 10, 16, and 17 . . . of the [IRA].6
This expanded application of the IRA was deemed necessary because
it had been "assumed that Alaska Natives were not members of
federally recognized Indian tribes." Report of the Governor's
Task Force on Federal-State-Tribal Relations, at 110-11 (Feb. 14,
1986). In Stevens Village, we interpreted these circumstances as
an express Congressional statement that most Native groups in
Alaska had not been recognized as tribes. 757 P.2d at 40.
Following our review of the IRA in Stevens Village, we
concluded that the Alaska Indian Reorganization Act "expressly
states that Native groups in Alaska have not been accorded tribal
recognition."7 757 P.2d at 40. We found that while the IRA sets
forth a means by which such groups might achieve self-governing
status, the Native Village of Stevens clearly had not achieved
that status. Id. at 40-41. This conclusion was based on the
fact that the village did not have, and never had, a reservation
on which to exercise its governmental powers. Id. at 40. We
stated: "In our view, the mere approval of a section 16
constitution . . . by the Secretary of the Interior . . . does
not suffice to afford . . . tribal status for the purpose of
application of the doctrine of tribal sovereign immunity."
Stevens Village, 757 P.2d at 40. Rather, the existence of a
federally recognized reservation was a "necessary precondition to
native communities' exercising local government powers under
section 16 of the IRA." 757 P.2d at 40. Because this crucial
element of sovereignty was lacking in the Stevens Village case,
we refused to accord sovereign status to the village.
The situation of the Native Village of Venetie lies
between the two factual settings presented by the Metlakatla
Indian community and the Native Village of Stevens. Unlike
Stevens Village, which never possessed a reservation, Venetie
once possessed a reservation. That reservation, however, was
abolished in 1971 by ANCSA.8 Due to this fact, Venetie is unlike
Metlakatla, whose reservation continues to exist pursuant to
express congressional recognition in ANCSA. Our inquiries into
tribal sovereignty in Stevens Village and Atkinson therefore
provide me with insufficient guidance to resolve Venetie's
present claim. Accordingly, I proceed to analyze the question
whether a Native group which once resided on a federally
recognized reservation in Alaska can constitute a sovereign
Indian tribe even after the federal government has expressly
terminated the reserve.
I find that Congress expressly pronounced in its 1971
enactment of ANCSA that no Native Alaskan group other than the
Metlakatla Indian community of the Annette Island Reserve may be
entitled to sovereign tribal status. A review of the history of
Alaska's settlement and the goals which ANCSA was intended to
pursue makes this conclusion inevitable. As noted previously,
the history of Alaska Native groups is extremely different from
the history of Indians in the lower forty-eight states.
Specifically recognizing this unique history, and in hopes of
arriving at a new, more successful means of resolving Native
claims, ANCSA expressly rejected the reservation model which
settled Native claims in other states.
The legislative history of ANCSA is instructive on this
point. In its October 21, 1971 Report to Congress regarding the
proposed ANCSA bill, the Committee on Interior and Insular
Affairs acknowledged the errors of the past, stating: "The
Congress has an opportunity in this last major settlement between
the United States and the Native peoples of America to arrive at
a more just and hopefully, a wiser resolution than has been
typical of our country's history in dealing with Native people in
other times and in other states." S. Rep. No. 405, 92d Cong. 1st
Sess., at 61-62 (1971). The Committee then identified several
major differences between ANCSA and previous Indian settlements.
In several important respects the
disposition recommended by the Committee for
the Alaska Native land claims differs from
previous settlements with Indian groups in
the other States. The status of aboriginal
claims in Alaska is not burdened with a
history of conquest or of treaties between
the United States and tribal groups. The
status of the land, with minor and manageable
exceptions, has not been complicated by the
establishment of Indian Reservations. . . .
The most important innovations [in the
Committee's proposed bill] are as follows:
(1) The settlement is
statewide and applies to all Alaska
Native groups; all eligible Natives
regardless of their ethnic
affiliation or their location are
entitled to an equal share in the
assets provided as compensation for
claims extinguished in the
(2) The settlement will
with minor exceptions put an end to
racial or ethnic distinctions in
land tenure or hunting and fishing
(3) The assets granted
to Alaska Natives under the terms
of this settlement will be managed
and disposed of by them either as
individuals or through statewide,
regional and local corporations
controlled by them.
S. Rep. No. 405, 92d Cong., 1st Sess., at 79-80 (1971).
The Act's legislative history also shows that Congress
intended that after ANCSA's enactment there was to be no trust
relationship between the federal government and the Native groups
of Alaska, as there is between the government and the Native
tribes of other states. Congress intended that "lands granted to
Natives under this Act [are not to be] considered _Indian
reservation_ lands for purposes other than those specified in
this Act. The lands granted by this Act are not _in trust_ and
the Native villages are not Indian _reservations._" H.R. Rep.
No. 746, 92d Cong., 1st Sess. 40, reprinted in 1971 U.S.C.C.A.N.
2192, 2253. In House consideration of ANCSA, it was again
clarified that "[t]he [ANCSA] bill does not establish any trust
relationship between the Federal Government and the Natives. The
regional corporations and the village corporations will be
organized under State law, and will not be subject to Federal
supervision except to the limited extent specifically provided in
the bill. All conveyances will be in fee -- not in trust." H.R.
Rep. 523, 92d Cong., 1st Sess. 9, reprinted in 1971 U.S.C.C.A.N.
The legislative history of ANCSA thus reveals both the
comprehensive scope of the Act as well as Congress' intention to
resolve Alaska Native claims in a new and entirely different
manner than was used to resolve the claims of other Indian
groups. Due to the specific tailoring of ANCSA to Alaska Native
claims, as well as the comprehensiveness of the Act's resolution
of those claims, I conclude that ANCSA represents a final and
binding settlement of Native claims, including claims of tribal
The actual language of ANCSA is also absolutely
inconsistent with the concept that Alaska Native groups carry on
as independent and sovereign enclaves entitled to special federal
recognition. The Act's preamble unequivocally demonstrates
Congress' intention that ANCSA settle "all claims by Natives and
Native groups of Alaska,"43 U.S.C. 1601(a) (1988), and that it
accomplish the assimilation of Alaska Natives into society as a
whole. Further, in the Act's "declaration of policy," Congress
[T]he settlement should be accomplished
rapidly, with certainty, in conformity with
the real economic and social needs of
Natives, without litigation, with maximum
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 or to the legislation
establishing special relationships between
the United States Government and the State of
43 U.S.C. 1601(b) (1988) (emphasis added). Any finding that
ANCSA did not abolish native sovereignty clearly would be at odds
with Congress' desire to abolish the reservation system and to
avoid prolonged wardship or trusteeship of Alaska Natives.10
The substantive provisions of ANCSA further illuminate
the irreconcilability of that Act with concepts of tribal
sovereignty in Alaska. Significantly, the Act explicitly
provides for a privately-owned corporate system of operation
rather than a reservation-based tribal system. See 43 U.S.C.
1606 (1988). Section 7 of the Act establishes regional
corporations which are organized like any other Alaska
corporation, with, for example, articles of incorporation and
bylaws, management under a board of directors, and ownership by
stockholders. Id. The corporations operate the same as other
Alaska corporations, with certain limited exceptions such as some
restrictions on the alienation of shares. See 43 U.S.C.
1606(h) (1988 & Supp. 1992). These provisions make clear that
the regional corporations created by ANCSA are business
corporations governed by state law, not tribal sovereigns.11 As
Senator Stevens of Alaska stated during the Senate's discussion
of the Act:
[The regional corporations] are not
government entities, but they are a part of a
profitmaking picture for the native people of
Alaska for the future. . . . It is important
for all to note that these are incorporated
under the laws of Alaska to conduct business
They are not government bodies. . . .
117 Cong. Rec. 46,964 (1971).
The village corporations created by the Act are also
businesses subject to state law. 43 U.S.C. 1607 (1988). While
these organizations have been endowed with sufficient land and
other assets to ensure effective self-determination, see 43
U.S.C. 1605 & 1610 (1988); 117 Cong. Rec. 38,445 (1971)
(statement of Senator Harris during Senate debate of the ANCSA
bill) (arguing in favor of a generous ANCSA land settlement to
ensure adequate power of Native self-determination), they are
like the regional corporations in that they possess no sovereign
status. See 117 Cong. Rec. 46,964 (1971) (statement of Sen.
Stevens). In my view, both the regional and village corporate
organizations possess no status as governing bodies, but are
instead intended to facilitate the assimilation of Native
Alaskans into the modern business world.12
I find further evidence of Congress' intent to
terminate Alaska Native claims to tribal status from the fact
that Congress conveyed the land due under the Act to the ANCSA
regional and village corporations, not to any governing IRA
organizations. See 43 U.S.C. 1611 (1988). Even in the case of
villages such as Venetie, which elected not to become part of the
regional corporate scheme and to take fee title to certain lands
instead,13 43 U.S.C. 1618(b) (1988), Congress conveyed the land
due under 1618(b) to the ANCSA village corporation of Venetie,
not to the Venetie IRA organization. Because the membership of
these two organizations may differ, I interpret Congress' action
as yet another indication that the land conveyed under ANCSA does
not and cannot establish boundaries for any tribal entity's
Finally, and most significantly, ANCSA 19
specifically revokes all reservations existing in Alaska, with
the exception of the Annette Island Reserve occupied by the
Metlakatla Indian Community.15 43 U.S.C. 1618(a) (1988). ANCSA
therefore abolishes all claims to tribal status and sovereignty
by Alaska Natives other than the Metlakatlans, since federal
recognition of a reservation is a necessary prerequisite to
judicial recognition of Alaskan tribal sovereignty.16 See
Mescalero Apache Tribe, 411 U.S. at 148-49 ("Absent express
federal law to the contrary, Indians going beyond reservation
boundaries have generally been held subject to nondiscriminatory
state law otherwise applicable to all citizens of the state.");
Stevens Village, 757 P.2d at 41. If Venetie's claim to
sovereignty were recognized in the absence of a federally
recognized reservation, it would be impossible to ascertain what
boundaries defined the area of Venetie's jurisdiction.17
In summary, after Stevens Village there remains no
question that Venetie's organization under the IRA is alone
insufficient to support a finding of sovereignty. Moreover,
ANCSA, the most far-reaching federal legislation ever to affect
Alaska Natives, reveals Congress' express intent that no Native
Alaska group other than the Metlakatla Indian community may be
entitled to sovereign tribal status. Congress envisioned state
regulatory authority over almost all Native-owned lands and
Native corporations, and mandated involvement by the state in the
affairs of all Native villages. Federal trusteeship and
reservations were terminated, and permanent racially-defined
institutions were abolished. Because there is nothing in the
language or legislative history of ANCSA which remotely suggests
that Congress intended IRA villages to have a governmental role
over the lands conveyed under ANCSA, I would accord Venetie no
such role. I would hold that neither the Tribal Government nor
the Village Corporation is entitled to sovereign immunity.
Venetie argues that the Stevens Village court analyzed
ANCSA for purposes of confirming that it does not confer federal
recognition of tribal status where none existed prior to passage
of the Act. Venetie contends that the court did not conclude
that ANCSA revoked tribal status where it did exist prior to the
Act. Venetie also claims that any sovereign immunity it may have
can be waived only if it is clear from the unambiguous language
of ANCSA and its legislative history that Congress intended such
a waiver. See Bryan v. Itasca County, 426 U.S. 373, 392-93 (1976)
(a congressional determination to terminate an Indian reservation
must be expressed on the face of the Act or be clear from the
surrounding circumstances and legislative history); Atkinson, 569
P.2d at 167 (sovereign immunity of the Metlakatla Indian
Community was waived only if the clear and unambiguous language
of the statute and its legislative history show Congress intended
such a waiver). Venetie contends that ANCSA is not sufficiently
unambiguous to justify my conclusion today.
I recognize that certain federal authority exists for
the proposition that ANCSA contains no expression of
congressional intent to alter the tribal status of Alaska Indian
villages.18 Nonetheless, I disagree with this line of federal
authority because I see no possible way to reconcile the spirit
and the terms of ANCSA with concepts of tribal sovereignty in
Alaska. As demonstrated above, many provisions of the Act are at
outright odds with any finding of sovereignty. I therefore
conclude that ANCSA
constitutes an express indication of Congress' will that, with
the sole exception of the Metlakatla Indian Community, any
sovereign status held by Alaska Native groups prior to 1971 be
RABINOWITZ, Chief Justice, dissenting.
The superior court held that the section 16 IRA Native
Village of Venetie Tribal Government possesses sovereign immunity
and that this immunity had not been waived. The superior court
further held that the "sue and be sued clause" of Venetie's
section 17 corporate charter was sufficient to waive the
corporation's sovereign immunity, but stayed further action
against Venetie's section 17 corporation requiring Nenana Fuel to
first exhaust its tribal court remedies. National Farmers Union
Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985); Iowa Mut.
Ins. Co. v. LaPlante, 480 U.S. 9 (1987). I would affirm the
ruling of the superior court.
This court, without determining whether the Native
Village of Venetie Tribal Government "actually constitutes a
sovereign entity"concludes that the Remedies on Default Clause
contained in the note and security agreement effects an express
waiver of any sovereign immunity possessed by Venetie, in both
its section 16 (tribal government) and section 17 (business
In Native Village of Stevens v. Alaska Management &
Planning, 757 P.2d 32, 41 (Alaska 1988) (Rabinowitz, C.J.,
dissenting), this court held that in the absence of express
recognition of tribal status by either Congress or the executive
branch of the federal government, an Indian tribe may not avail
itself of sovereign immunity. See also Hydaburg Coop. Ass'n v.
Hydaburg Fisheries, 826 P.2d 751, 754 (Alaska 1992) (Rabinowitz,
C.J., dissenting). The court further held that organization
under section 16 of the Indian Reorganization Act was not
sufficient in itself to afford a village tribal council tribal
status for the purpose of tribal sovereign immunity. Id. at 40.
In reaching this conclusion the court reasoned:
The more controversial section 2 of
the [Indian Reorganization] Act, which
empowered the Secretary to create
reservations in Alaska, was regarded by the
Interior Department as necessary to protect
the economic rights of Alaska Natives.
Reservations were also thought to be a
necessary precondition to native communities'
exercising local government powers under
section 16 of the IRA.
. . . .
Since Stevens Village was never
granted a reservation, the power of local
government has never been extended to it. In
our view, the mere approval of a section 16
constitution for Stevens Village by the
Secretary of the Interior, which itself
withholds the power of local government to
the Village, does not suffice to afford the
Village tribal status for the purpose of
application of the doctrine of tribal
Stevens Village, 757 P.2d at 40. In the instant case, the
superior court interpreted Stevens Village as indicating that
where other factors are present, a section 16 IRA council may be
determined to possess sovereignty and as a consequence, sovereign
immunity. Nenana Fuel Co. v. Venetie, No. 4FA-87-354 CI (Alaska
Super., March 13, 1989). Examining Venetie's history of federal
relations, the superior court found the following facts to be
relevant to the issue of whether Venetie had been accorded
recognition by either Congress or the executive branch of the
The Native Village of Venetie was
organized under the terms of the Indian
Reorganization Act as amended by the Alaska
Indian Reorganization Act. The Village's
constitution and bylaws were approved by the
Secretary of the Interior in 1940 in
accordance with 16 of the Indian Reorganiza
tion Act, 25 U.S.C. 476. Pursuant to
Article 4 of the constitution as approved by
the Secretary of the Interior, the Village
had explicit powers. Included within those
powers are the following: (1) "[t]o do all
things for the common good which it has done
or has had the right to do in the past and
which are not against Federal law and such
Territorial law as may apply,"and (2) "[t]o
control the use by members or nonmembers of
any reserve set aside by the Federal
Government for the Village and to keep order
in the reserve." Clearly, these are the
powers of a self-governing organization.
At the time of its incorporation
under the Indian Reorganization Act, there
was no reservation set aside for the
inhabitants of the Venetie area. Upon
application by the people of the area, on May
20, 1943, the Secretary of the Interior
withdrew a 1.4 million acre reservation for
the people of the native villages of Venetie,
Arctic Village, Christian Village, and
Robert's Fish Camp. This reservation was
created under 2 of the Indian
Reorganization Act. See generally Stevens
Village, 757 P.2d at 40. Despite the
protestations of the villagers, the Venetie
Reservation was abolished in 1971 with the
passage of the Alaska Native Claims
Settlement Act. ANCSA 19(a), 43 U.S.C.
1618(a). Pursuant to the terms of 19(b),
43 U.S.C. 1618(b), the village corporations
within the former Venetie Reservation elected
to acquire title to the surface and
subsurface estates of the reserve. When
title was acquired, the land was deeded to
the Native Village of Venetie Tribal
Government. The court concludes that the
termination of the reservation under ANCSA
did not abolish the sovereign immunity
previously held by the Venetie IRA
organization. See generally DeCouteau [sic]
v. District County Court, 420 U.S. 425, 442-
44 (1975); Menominee Tribe of Indians v.
United States, 391 U.S. 404 (1968); Kimball
v. Callahan, 590 F.2d 768, 776-77 (9th Cir.),
cert. denied 444 U.S. 826 (1979).
In Stevens Village, I agreed with the majority "that
IRA incorporation alone does not constitute federal recognition
of tribal status for purposes of sovereign immunity."20 However,
I noted in dissent that:
In the instant case Congress has
neither expressly recognized the Village as a
tribe for the purposes of sovereign immunity
nor expressly waived the Village's immunity.
Therefore, if the Village is in fact a
historically sovereign tribe, this court is
bound to honor its immunity from suit.
. . . .
Having determined that the federal
government has not expressly recognized
Stevens Village as a tribe for purposes of
sovereign immunity, I would remand the case
to afford the Village the opportunity to make
a factual showing as to its alleged tribal
Stevens, 757 P.2d at 47-48. The facts contained in the record of
the instant case are substantially different from those in
Stevens Village and therefore lead me to conclude that the
section 16 IRA Native Village of Venetie Tribal Government has
been recognized as a tribe for purposes of sovereign immunity.
Under Article I, sec. 8, cl. 3 of the United States
Constitution, Congress is authorized to "regulate Commerce . . .
with the Indian Tribes." Congress' constitutional authority to
legislate with respect to Native Americans is based on the
federal government's political relationship with tribes. Morton
v. Mancari, 417 U.S. 535 (1974). "Recognition"of a tribe often
is effected by Congress in the context of a government-to-
government agreement with the tribe, embodied in a treaty or a
statute. However, Congress has at times delegated part of its
power to recognize particular groups as "tribes"to the Secretary
of Interior. James v. U.S. Dept. of Health and Human Services,
824 F.2d 1132 (D.C. Cir. 1987).21 Such determinations constitute
nonjusticable political questions which are final and binding.
United States v. Sandoval, 231 U.S. 28, 46 (1913).
In reference to all matters of this
kind, it is the rule of this court to follow
the action of the executive and other
political departments of the government,
whose more special duty it is to determine
such affairs. If by them these Indians are
recognized as a tribe, this court must do the
same. If they are a tribe of Indians, then,
by the Constitution of the United States,
they are placed, for certain purposes, within
the control of the laws of Congress.
U.S. v. Holiday, 70 U.S. (3 Wall.) 407, 419 (1865); see also
Perrin v. United States, 232 U.S. 478 (1914); Atkinson v.
Haldane, 569 P.2d 151, 160 (Alaska 1977). Once Congress or the
executive has recognized a tribe, there is no further need for
the court to explore the historical basis for the finding of
sovereignty. Stevens Village, 757 P.2d at 47; Atkinson, 569 P.2d
Given the federal government's grant of an IRA
reservation to Venetie for the purpose of encouraging tribal self-
government22, I conclude that Venetie was federally recognized as
a tribe for the purpose of sovereign immunity. Further support
for this conclusion is found in the fact that Venetie's
constitution, as approved by the Secretary of Interior, gives it
general police power to "control the use by members or nonmembers
of any reserve set aside by the Federal Government for the
Village and to keep order in the reserve."
It is well established that federally recognized tribes
enjoy sovereign immunity from suit absent congressional
abrogation or waiver. United States v. United States Fidelity &
Guar. Co., 309 U.S. 506, 512 (1940); United States v. Testan, 424
U.S. 392, 399 (1976). In Stevens Village the court reasoned that
because ANCSA "evidences Congress' intent that non-reservation
villages be largely subject to state law,"it cannot be deemed to
have recognized the villages as tribes. 757 P.2d at 41. In
dissent, I stated,
[I]n ANCSA, . . . Congress did not
address immunity. The court does not cite a
single provision of ANCSA that directly or
indirectly suggests a waiver of sovereign
immunity. Rather the court infers this
intent, an approach which is at odds with the
rule that a waiver of immunity must be
One of the provisions the court
uses to bolster its waiver conclusion is the
section that permits taxation of certain
lands granted pursuant to ANCSA. 43 U.S.C.A.
1620(d) (1986). In my view this section
supports the opposite conclusion, because it
is an excellent example of the type of clear
expression Congress must make to waive an
immunity, in this case tax immunity.
The court concludes that ANCSA
"evidences Congress's intent that non-
reservation villages be largely subject to
state law." Even assuming that this is true,
it does not deprive the villages of sovereign
immunity. . . . Congress does not
necessarily waive the sovereign immunity of
Indian tribes when it subjects them to some
measure of state law.
In short, nothing in ANCSA, the
IRA, or any of the earlier enactments
approaches the type of express congressional
statement that is necessary to waive
Stevens Village, 757 P.2d at 45 (citations omitted).
Contrary to the notion that ANCSA represents Congress'
express intent to extinguish those self-governing powers
possessed by Alaska's Native villages, in my view the legislative
history of the Act indicates otherwise. As one of ANCSA's prime
architects, Senator Ted Stevens stated:
[W]e have a basic agreement on the fact
that Alaska Native people themselves should
have the right to self-determination. This
is consistent with the President's policy of
self-determination without termination.23
Far from representing an express extinguishment of
sovereignty, ANCSA is properly viewed as an expression of
Congress' recognition of Alaska Natives' aboriginal title.24
The consistent policy of the United
States in its dealings with Indian Tribes has
been to grant them title to a portion of the
lands which they occupied, to extinguish the
aboriginal title to the remainder of the land
by placing such land in the public domain,
and pay the fair value of the title
Congress followed this policy in its treatment of Alaska Native
villages when it enacted ANCSA. ANCSA replaced unprotected
aboriginal lands with a full fee title interest and vested that
fee title and monetary compensation in specific Native
corporations to facilitate economic development.26
To protect the Native people in their transition to
economic self-sufficiency, Congress elected to place several
provisions in ANCSA that restricted alienation of the land for
the first twenty years, exempted from taxation undeveloped lands
for twenty years, and exempted the corporations from various SEC
restrictions. The 1980 Alaska National Interest Lands
Act (ANILCA)27 and the ANCSA amendments transformed these
provisions into permanent protections.28
I also reject the notion that ANCSA's termination of
Venetie's reservation constitutes a manifestation of Congress'
"clear purpose to terminate"Venetie's powers of self-government.29
It is well established that tribal status and governmental powers
survive the termination of a reservation unless clearly and
unequivocally extinguished by Congress. In the case at bar,
clear and unequivocal extinguishment by Congress has not
occurred. United States v. Santa Fe Pacific R.R., 314 U.S. 339,
353 (1941); Decoteau v. District County Court, 420 U.S. 425, 442-
44 (1975); Menominee Tribe of Indians v. United States, 391 U.S.
404 (1968); Kimball v. Callahan, 590 F.2d 768, 776-77 (9th Cir.),
cert. denied 444 U.S. 826 (1979). Federal courts have ruled that
this principle applies equally to ANCSA villages. See Chilkat
Indian Village v. Johnson, No. J84-024 Civ. (D. Alaska, Oct. 9,
1990) (if Chilkat had governmental power under its status as a
reservation ANCSA did nothing to extinguish those powers); Native
Village of Tyonek v. Puckett, 890 F.2d 1054, (9th Cir.
1989)(ANCSA did not abrogate Tyonek's tribal sovereign immunity);
cf. Native Village of Noatak v. Hoffman, 896 F.2d 1157 (9th Cir.
1990) rev'd on other grounds, Blatchford v. Native Village of
Noatak and Circle Village, U.S. , 111 S. Ct. 2578, 115 L.Ed.
2d 686 (1991) (ANCSA constitutes Congressional recognition of
Native Villages as Indian tribes).30
Furthermore, I disagree with this court's position that
the Remedies on Default Clause contained in the note and security
agreement effects an express waiver of any sovereign immunity
possessed by the section 16 IRA Native Village of Venetie Tribe.
Atkinson v. Haldane, 569 P.2d 151, 174 (Alaska 1977), contains a
lengthy discussion of our view that a governmental unit created
pursuant to section 16 of the Indian Reorganization Act31, and the
corporate unit created pursuant to section 17 of that Act, are
distinct legal entities. Atkinson notes that Opinions by the
Solicitor, Department of the Interior, the legislative history of
the Act, and considerations of sound public policy support the
notion of two legal entities, "one with sovereign immunity, the
other with the possibility for waiver of that immunity." Id.32
While there is considerable difference of opinion
between courts regarding whether a "sue and be sued"clause of a
section 17 corporation's charter constitutes a general waiver of
immunity possessed by a tribal corporation,33 the United States
Supreme Court has mandated that the immunity possessed by a
tribal governing body remains intact unless surrendered in
express and unequivocal terms. Santa Clara Pueblo v. Martinez,
436 U.S. 49, 58-59 (1978). Moreover, because an implied waiver
exception would undermine the federal concern for tribal
political and economic development,34 a waiver of tribal immunity
cannot be implied but must be unequivocally expressed. Id.; Pan
American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9th
Cir. 1989); American Indian Agric. Credit Consortium, Inc. v.
Standing Rock Sioux Tribe, 780 F.2d 1374, 1377-78 (8th Cir.
1985); Wichita and Affiliated Tribes v. Hodel, 788 F.2d 765, 773
(D.C. Cir. 1986).
Given these well established principles, I conclude
that neither the "sue and be sued"clause nor the Remedies on
Default Clause constitute an explicit and unequivocal waiver of
immunity by Venetie's section 16 tribal governing body. Atkinson
v. Haldane, 569 P.2d 151, 175 (Alaska 1977). As to the section
17 Venetie corporate body, I am persuaded that principles of
comity require that the extent and effect of any such waiver be
determined in the first instance by the tribal court. See A & A
Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411,
1418 (9th Cir.), cert. denied, 476 U.S. 1117 (1986); R.J.
Williams Co. v. Fort Belknap Housing Auth., 719 F.2d 979 (9th
Cir. 1983); Weeks Const. Inc. v. Oglala Sioux Housing Auth., 797
F.2d 668, 674 (8th Cir. 1986). Burlington N. R.R. v. Crow Tribal
Council, 940 F.2d 1239 (9th Cir. 1991) cert. pending, ____ U.S.
The importance of deferring to tribal forums was
emphasized by the United States Supreme Court in National Farmers
Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985), and
Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987).35 In
National Farmers Union, the Supreme Court explained:
We believe that examination should
be conducted in the first instance in the
Tribal Court itself. Our cases have often
recognized that Congress is committed to a
policy of supporting tribal self-government
and self-determination. That policy favors a
rule that will provide the forum whose
jurisdiction is being challenged the first
opportunity to evaluate the factual and legal
bases for the challenge. Moreover, the
orderly administration of justice in the
federal court will be served by allowing a
full record to be developed in the Tribal
Court before either the merits or any
question concerning appropriate relief is
addressed. . . . Exhaustion of tribal
remedies, moreover, will encourage tribal
courts to explain to the parties the precise
basis for accepting jurisdiction, and will
also provide other courts with the benefit of
their expertise in such matters in the event
of further judicial review.
471 U.S. at 856-57 (citations omitted). In Iowa Mutual Ins. Co.,
the exhaustion requirement was extended as a matter of comity to
cases involving the diversity jurisdiction of the federal courts.
480 U.S. 9 (1987). The Court rejected an attack on tribal court
jurisdiction on the basis of local bias and incompetence by
stating, "[w]e have rejected similar attacks on tribal court
jurisdiction in the past. The alleged incompetence of tribal
courts is not among the exceptions to the exhaustion requirement
established in National Farmers Union, and would be contrary to
the congressional policy promoting the development of tribal
courts."Id. at 19 (citations omitted).
Relying on these two seminal cases, the superior court
in the instant case correctly concluded:
The comity principles of National
Farmers Union and LaPlante are well-reasoned
and should be adopted by the state courts.
The federal government, with its special
constitutional relationship to the Indian
tribes, has long had the primary role in
shaping the policies which relate to the
states' relationships with the tribes. The
special federal role in determining policies
was recognized by the Alaska Supreme Court in
Atkinson v. Haldane, 569 P.2d 151, 163
(Alaska 1977) (the supremacy of federal law
required the recognition of the tribe's
sovereign immunity even in the face of valid
public policy reasons to disregard it). The
federal policies enunciated in National
Farmers Union are equally applicable to a
question of the state court's exercise of
comity. The exercise of jurisdiction by the
state court is no less likely to impact
negatively the federal policy favoring the
development of tribal courts than is the
exercise of jurisdiction by the federal
Nenana Fuel Co., Inc. v. Native Village of Venetie, No. 4FA-87-
354 CI (Alaska Super., November 21, 1989).
1. Venetie also contends that, even if the contract
contains an express waiver, the three Tribal Government Council
members who signed the document had no authority to waive the
Tribal Government's immunity without obtaining a resolution of
the entire Tribal Government. While this may be true, Venetie
waived this argument by failing to raise it before the superior
2. Because the trial court did not base its decision on the
Remedies on Default clause, it did not consider the relationship
between that clause and the doctrine of exhaustion of remedies.
We believe that comity principles are inapplicable when a party
brings a legal action in state court pursuant to a contractual
provision permitting the invocation of remedies under state law.
3. The mere fact that an Alaska Native village is organized
under the IRA is not evidence of tribal status, since portions of
the IRA applicable to Alaska Natives allow Native entities that
do not constitute tribes to organize pursuant to the IRA. See
infra note 5 & accompanying text.
4. Included in those powers are the power 1) "[t]o do all
things for the common good which [the Village] has done or has
had the right to do in the past and which are not against Federal
law and such Territorial law as may apply,"and 2) "[t]o control
the use by members or nonmembers of any reserve set aside by the
Federal Government for the Village and to keep order in the
5. After the initial passage of the IRA in 1934, 16, but
not 17, was applicable to Alaska.
6. The 1936 Act also authorized the Secretary of the
Interior to designate Indian reservations in Alaska.
Reservations were deemed necessary to protect the economic rights
of Alaska Natives, as well as to delineate the geographical
limits of Native communities' power of self-government under the
IRA. See Report of the Governor's Task Force on Federal-State-
Tribal Relations, at 109, 111-12 (Feb. 14, 1986); Native Village
of Stevens v. Alaska Management & Planning, 757 P.2d 32, 40
7. Venetie urges us to overrule this conclusion. It claims
that it is impossible to reconcile the holding of Stevens Village
with the Ninth Circuit's holding in Native Village of Noatak v.
Hoffman, 896 F.2d 1157 (9th Cir. 1990), rev'd on other grounds,
Blatchford v. Native Village of Noatak and Circle Village, 501
U.S. __, 111 S.Ct. 2578 (1991).
In Noatak, the Ninth Circuit identified three bases
upon which a court may infer that a tribe has been "duly
recognized" by the federal government for purposes of invoking
federal jurisdiction under 28 U.S.C. 1362. Id. at 1160. They
are: (1) the existence of a village governing body approved by
the Secretary of the Interior under 16 of IRA, 25 U.S.C. 476;
(2) a village's listing as a Native Village under ANCSA, 43
U.S.C. 1601(b)(1); and (3) on the basis of three recent
statutes, the Indian Self-Determination Act, 25 U.S.C. 450b(e)
(1988), the Indian Financing Act, 25 U.S.C. 1452(c) (1988), and
the Indian Child Welfare Act, 25 U.S.C. 1903(8) (1988). Id.
See Native Village of Venetie I.R.A. Council v. State of Alaska,
944 F.2d 548 (9th Cir. 1991) (relying upon Noatak to find that
Venetie is a duly recognized tribe under 1362). But see Cape
Fox Corp. v. United States, 456 F. Supp. 784, 797-98 (D. Alaska
1978), rev'd on other grounds, 646 F.2d 399 (9th Cir. 1981)
(holding that ANCSA village and regional corporations are not
duly recognized tribes or bands for purposes of 28 U.S.C.
I read Noatak and Venetie as recognizing tribal status
only for the limited purpose of establishing federal jurisdiction
under 1362. This conclusion is confirmed by the Ninth
Circuit's recent decision in Native Village of Tyonek v. Puckett,
957 F.2d 631 (9th Cir. 1992), which provides:
We have held that certain Alaska native
villages constitute tribes for the purpose of
28 U.S.C. 1362 (1988), which provides for
federal jurisdiction over civil actions
raising a federal question "brought by any
Indian tribe or band with a governing body
duly recognized by the Secretary of the
Interior." Native Village of Venetie I.R.A.
Council, 944 F.2d at 551-52; Native Village
of Noatak, 896 F.2d at 1160. However, we
have not addressed the question whether any
Alaskan native village constitutes an Indian
tribe for the purpose of sovereign immunity.
See also Noatak, 896 F.2d at 1166-67 (Kozinski, J., dissenting).
The Ninth Circuit's finding of federal recognition of tribal
status for Villages reorganized under 16 of IRA or listed as
Native Villages under ANCSA therefore peacefully co-exists with
our ruling in Stevens Village. As such, the Noatak and Venetie
decisions have no impact on my decision today.
8. The State's pleadings in State of Alaska ex rel. Yukon
Flats School Dist. v. Native Village of Venetie, 856 F.2d 1384
(9th Cir. 1988), which Nenana Fuel relies on to support its
argument that the Village Corporation and Tribal Government are
not sovereign entities, cast grave doubt on the Tribal
Government's assertions that it is an effective 16
organization. In that case, the State of Alaska seeks to enjoin
the Tribal Government from collecting a business activity tax
levied on a contractor who built new school buildings in Venetie.
The Ninth Circuit upheld the district court's issuance of a
preliminary injunction which prohibits the Tribal Government from
conducting further enforcement proceedings during the pendency of
the case. The parties subsequently filed cross-motions for
summary judgment on July 6, 1990.
In the State's cross-motion, the State alleged that the
Tribal Government does not have an IRA constitution, that the
Tribal Government is not a traditional government since it only
came into existence in 1976, and that the Tribal Government is
essentially defunct as it has no assets other than paper title to
land in the area. The State also raised a question as to the
validity of the Tribal Government's title to the former
reservation land since the ANCSA village corporations of Venetie
and Arctic Village deeded the property to the Tribal Government
before they received the patent to the land from the federal
Moreover, the state argued that since the land was the
sole asset of the ANCSA corporations and the membership of the
Tribal Government differs from that of the corporations, the
transfer could be subject to attack as an illegal transfer of
9. Justice Matthews discussed ANCSA's termination of tribal
sovereign immunity in Stevens Village, 757 P.2d at 41 n.24:
One purpose served by the doctrine of
tribal sovereign immunity is to give special
protection to Indian lands and money.
Atkinson v. Haldane, 569 P.2d at 160.
Congress, by granting Alaska Natives' lands
and money to state regulated corporations
which are not exempt from suit, and without
imposing significant restraints on the
alienation of lands, has evidently concluded
that the special protection of immunity was
not necessary or desirable for the great bulk
of Native property.
10. The Department of Interior (DOI) came to a similar
conclusion after the passage of ANCSA when it denied a petition
from the Tribal Government to restore the former Venetie
reservation to trust status. The DOI found that the election by
Venetie and Arctic Village to take their former reservation in
fee pursuant to 43 U.S.C. 1618(b), while rendering the villages
ineligible for certain other benefits provided by ANCSA, did not
disassociate them from the Act's settlement of all Native claims.
Rather, section 1618 unequivocally expresses Congress'
intention to revoke all reservations except the Annette Island
Reserve. DOI therefore concluded that the Act did not allow the
Natives of Venetie the option of voting for continued trust
status, but only allowed them to choose between two competing
forms of compensation in settlement of their claims:
participating in the regional corporate plan of the Act, or
electing to opt-out of that scheme and take fee title to the
former reservation land.
11. See S. Rep. No. 405, 92d Cong., 1st Sess. 80 (1971):
[T]he assets granted in settlement of
the claims will be, or will rapidly become,
ordinary and unrestricted forms of property.
Organizations established to implement the
settlement will have a strictly limited life
or will become ordinary public and private
corporations operating without any special
privileges or restrictions.
12. ANCSA's legislative history reveals Congress' belief
that recognition of Native Village corporations in place of the
traditional unit in Native society, the village, maximized the
local self-determination of Native groups while accomplishing the
Act's goal of assimilating Natives into modern society. See
Report of the Committee on Interior and Insular Affairs, S. Rep.
No. 405, 92nd Cong., 1st Sess. at 132 (1971). Organization as a
business corporation does not by any means end all Native control
over their village affairs. To the contrary, ANCSA has liberally
provided for the transfer of land and other assets to ensure that
Natives are able to maintain local control over their affairs.
That Act does, however, terminate any claim of tribal status.
13. Notably, ANCSA offered no option to preserve the trust
status of any reservation land, with the exception of the Annette
Island Reserve occupied by the Metlakatlan Indian community. See
43 U.S.C. 1618 (1988).
14. Because ANCSA terminated the sovereignty of all Native
groups in Alaska except the Metlakatlans, Venetie's sovereign
immunity has been extinguished regardless of whether title to
Venetie's land is held by its ANCSA village corporation or by the
15. The legislative history of 43 U.S.C. 1618(a) indicates
that the reserves of certain Native groups, such as the
Metlakatlans and the Tyonek Indians of the Moquawkie Reserve,
were accorded special consideration before that provision was
enacted. The Natives of Venetie apparently were not accorded
this special consideration. See S. Rep. No. 405, 92nd Cong., 1st
Sess. at 44 (1971). The final ANCSA bill granted the
Metlakatlans' request for an exemption from revocation of their
reservation. 43 U.S.C. 1618(a) (1988).
16. The United States Supreme Court has repeatedly linked
the concept of Indian sovereignty with that of reservations:
[The Indian sovereignty doctrine] has
undergone considerable evolution in response
to changed circumstances. As noted above,
the doctrine has not been rigidly applied in
cases where Indians have left the reservation
and become assimilated into the general
community. Similarly, notions of Indian
sovereignty have been adjusted to take
account of the State's legitimate interests
in regulating the affairs of non-Indians . .
. . Essentially, absent governing Acts of
Congress, the question has always been
whether the state action infringed on the
right of reservation Indians to make their
own laws and be ruled by them.
Finally, the trend has been away from
the idea of inherent sovereignty as a bar to
state jurisdiction and toward reliance on
federal preemption. [footnote omitted] The
modern cases thus tend to avoid reliance on
platonic notions of Indian sovereignty and to
look instead to the applicable treaties and
statutes which define the limits of state
8 The extent of federal pre-emption and
residual Indian sovereignty in the total
absence of federal treaty obligations or
legislation is therefore now something of a
McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172-73
(1973) (citations omitted). See also Brendale v. Confederated
Bands & Tribes of the Yakima Indian Nation, 492 U.S. 408 (1989)
(implying that tribal jurisdiction ends beyond the boundaries of
the reservation); Montana v. United States, 450 U.S. 544, 565-66
(1981) (identifying three situations in which a tribe can assert
jurisdiction over a non-member: where the non-member was engaged
in activities on reservation lands; where the non-member had
consensually entered into a relationship with the tribe
subjecting himself to tribal jurisdiction; or where the non-
member was acting on fee lands within the reservation and those
activities posed a direct threat to the health and welfare of the
In short, the Court increasingly looks to specific
federal statutes or treaties granting tribal authority or
limiting state authority when deciding Indian jurisdictional
questions, instead of relying on the outdated notion of sovereign
immunity. When analyzing the applicable federal law, the Court
first looks to any authority establishing a reservation. This
approach was particularly evident in the companion cases of
Metlakatla Indian Community v. Egan, 369 U.S. 45 (1962), and
Organized Village of Kake, 369 U.S. 60 (1962). Those cases arose
from this court's decision that the villages involved had no
separate jurisdiction which would immunize them from state law
prohibiting the use of fish traps. Metlakatla Indian Community
v. Egan, 362 P.2d 901 (Alaska 1961), partially rev'd, 369 U.S. 45
(1962). The Supreme Court partially overruled this decision,
holding that the reservation community of Metlakatla had separate
authority derived from federal law as a result of its
reservation, but that the non-reservation villages of Kake and
Angoon possessed no such authority. Significantly, the Court
affirmed that portion of our decision pertaining to Kake and
Angoon, holding that the federal permits under which the Indians
fished did not grant a right to be free of state regulation, and
that the state has the power to regulate the off-reservation
fishing by Indians.
The Department of the Interior has also recognized that
only those Alaska Native communities which inhabit reservations
are entitled to sovereign immunity. In its "Instructions for
Organizing in Alaska under the Indian Reorganization Act as
amended for Alaska," the Department of the Interior stated
unequivocally that government powers are available to IRA
councils only on reservations. Report of the Governor's Task
Force 113-15 (December 22, 1937).
17. As Secretary Ickes stated in his letter to the House
Committee on Indian Affairs accompanying 2 of the Alaska Indian
Reorganization Act: "[I]f native communities of Alaska are to set
up systems of local government, it will be necessary to stipulate
the geographical limits of their jurisdictions. Reservations set
up by the Secretary of the Interior will accomplish this." H.R.
Rep. No. 2447, 74th Cong., 2d Sess. 3-5 (1936) (letter from
Harold Ickes to Honorable Will Rogers), reprinted in Report of
the Governor's Task Force on Federal-State-Tribal Relations, at
112 (Feb. 14, 1986). See also Worcester v. Georgia, 31 U.S. (6
Pet.) 515, 557 (1832) (Marshall, C.J.) (the "several Indian
nations [constitute] distinct political communities, having
territorial boundaries, within which their authority is
exclusive. . . .") (emphasis added).
18. See, e.g., Chilkat Indian Village v. Johnson, No. J84-
024 Civ. (D. Alaska, Oct. 9, 1990); Native Village of Tyonek v.
Puckett, No. A82-369 Civ., transcript of decision (D. Alaska,
Dec. 3, 1986), rev'd on other grounds, 890 F.2d 1054 (9th Cir.
1989). See also Eric Smith & Mary Kancewick, The Tribal Status
of Alaska Natives, 61 U. Colo. L. Rev. 455, 509 (1990) (arguing
that ANCSA terminated only aboriginal title and all claims based
on that title, and not tribal status). Cf. Native Village of
Noatak v. Hoffman, 896 F.2d 1157 (9th Cir. 1990), rev'd on other
grounds, Blatchford v. Native Village of Noatak and Circle
Village, __ U.S. __, 111 S.Ct. 2578 (1991) (ANCSA constitutes
congressional recognition of Native Villages as Indian tribes).
In Native Village of Tyonek v. Puckett, 953 F.2d at
1183 (9th Cir. 1992), opinion withdrawn, 957 F.2d 631 (9th Cir.
1992), the Ninth Circuit held on remand from the United States
Supreme Court that the Village of Tyonek was entitled to
sovereign immunity from a claim that Tyonek Ordinance No. 4
violates the United States Constitution, the Indian Civil Rights
Act, and the Civil Rights Act of 1866. That ordinance provides
that "[a]ny white men except government men or outsider coming in
is allow [sic] to stay only 24 hours." Native Village of Tyonek
v. Puckett, No. A82-369 Civ., transcript of decision at 6 n.2 (D.
Alaska, Dec. 3, 1986), rev'd on other grounds, 883 F.2d 1024 (9th
Cir. 1989), opinion issued in 890 F.2d 1054 (9th Cir. 1989). The
Ninth Circuit withdrew its opinion approximately two months after
it was issued, partly because it was decided that "the present
record fails to set forth sufficient facts to demonstrate that
the Village is an Indian tribe in the political sense, and that
the real property it owns is Indian country." Tyonek, 957 F.2d
In its withdrawn opinion, the Ninth Circuit did not
expressly consider the impact of ANCSA in Tyonek, for the court
had affirmed that portion of the district court's decision
holding that ANCSA did not terminate Tyonek's sovereign immunity.
The basis for the Ninth Circuit's decision that Tyonek was
entitled to sovereign immunity was instead that Tyonek is "Indian
country" under the test articulated in Oklahoma Tax Comm'n v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, __ U.S. __, 111
S.Ct. 905 (1991). That case stated that one test for determining
whether land is Indian country is "whether the area has been
validly set apart for the use of the Indians as such, under the
superintendence of the Government." Oklahoma Tax Comm'n, 111
S.Ct. at 910. In applying this test to the land which Tyonek
received as a result of ANCSA, the court emphasized that "the
mere fact that a tribe holds its land in fee simple does not
prevent the land from having the status of Indian country." 953
F.2d at 1183.
I find the Ninth Circuit's reasoning in the withdrawn
Tyonek opinion unpersuasive for two reasons. First, I believe
that the Tyonek court erroneously equated Indian country with
sovereign immunity. Indian country, defined in 18 U.S.C. 1151
(1988), is a term used to define the special territory where
Indians are governed primarily by tribal and federal law rather
than state law. F. Cohen, Handbook of Federal Indian Law 28 (R.
Strickland ed. 1982). While Indian country and sovereignty are
often coterminous, they are not necessarily coterminous. See
Stevens Village, 757 P.2d at 44 (Rabinowitz, C.J. dissenting)
(stating that certain Alaska Native villages, which are not
Indian country, might be entitled to sovereign immunity). In
determining whether the Village of Tyonek was entitled to
sovereign immunity, the Ninth Circuit should have examined
whether the village's inhabitants constituted a federally
A second problem with the Tyonek decision is that, in
determining that Tyonek was entitled to sovereign immunity, it
unduly emphasized the fact that Tyonek held land in fee simple.
The Supreme Court did the exact opposite in County of Yakima v.
Confederated Tribes and Bands of the Yakima Indian Nation, 502
U.S. __, 112 S.Ct. 683 (1992), where it expressly held that
certain fee-patented reservation land allotted pursuant to the
Dawes Act to the Yakima Tribe and its members is subject to
Washington state ad valorem taxes. Writing for the majority,
Justice Scalia stated that "when 5 [of the Dawes Act] rendered
the allotted lands alienable and encumberable, it also rendered
them subject to assessment and forced sale for taxes." Id. at
19. Nenana Fuel argues that Public Law 280 waived Venetie's
claim to jurisdiction over this dispute. Public Law 280 provides
in relevant part:
Each of the States listed in the
following table shall have jurisdiction over
civil causes of action between Indians or to
which Indians are parties which arise in the
areas of Indian Country listed opposite the
name of the State to the same extent that
such State has jurisdiction over other civil
causes of action, and those civil laws of
such State that are of general application to
private persons or private property shall
have the same force and effect within such
Indian country as they have elsewhere within
State of Indian country affected
Alaska . . . . . . . . . .All Indian country
within the State
28 U.S.C. 1360(a). This argument fails, for we have concluded
that Public Law 280 was not intended by Congress to constitute a
waiver of sovereign immunity. Atkinson, 569 P.2d at 152-53.
After an exhaustive review of the statute's history, the Atkinson
court recognized that the "primary intent of [the Act] was to
grant jurisdiction over private civil litigation involving
reservation Indians in state court." Id. at 166 (citing Bryan v.
Itasca County, 426 U.S. 373, 385 (1976)).
20. 757 P.2d at 45 n.6. My reasons for so concluding,
however, were based on different considerations than the court's.
[T]he Alaska amendment to the IRA
allowed any "group of Indians in Alaska"
with a "common bond" to incorporate. 25
U.S.C.A. 473a (1983). The "common bond"
language is extremely broad. In fact, it is
nearly identical to that in a previously-
enacted statute providing for the
organization of federal credit unions having
nothing to do with Indians. 12 U.S.C.A.
1759 (1980). Whether or not so intended by
Congress, the expansive "common bond"
language has resulted in reorganization under
IRA section 16 of Alaska Native groups that
clearly had no historical existence as tribal
governmental units. For example, the
Ketchikan Indian Corporation is organized
under both IRA sections 16 and 17. Yet its
members "are not descended from any
particular Indian community, but are natives
of differing groups who happen to live in
Ketchikan." Board of Equalization v. Alaska
Native Bhd. and Sisterhood, Camp. No. 14, 666
P.2d 1015, 1025 (Alaska 1983) (Rabinowitz,
J., concurring). Therefore, it seems
unlikely that Congress intended to recognize
all IRA section 16 [entities] as tribes for
purposes of sovereign immunity.
21. See also 25 C.F.R. 83 (1991). In the absence of Congres
sional or secretarial recognition, tribal status may in the alter
native be judicially proven and, with it, the inherent sovereign
authority which flows from that status. United States v.
Washington, 641 F.2d 1368, 1372-73 (9th Cir. 1981), cert. denied,
454 U.S. 1143 (1982), Mashpee Tribe v. New Seabury Corp., 592
F.2d 575, 585-87 (1st Cir. 1979) cert. denied, 444 U.S. 866
22. One of the specific purposes for creating the IRA
reservations was to establish boundaries within which the IRA
councils would exercise their governmental powers. See Secretary
of the Interior Harold L. Ickes' Instructions for Organization in
Alaska Under the Reorganization Act of June 18, 1934 and the
Alaska Act of May 1, 1936, Dec. 22, 1937. Shortly before the IRA
reservations were revoked, the Alaska Regional Solicitor
thoroughly analyzed the status of the IRA reservations. The
solicitor concluded that the tribes possess a substantial quantum
of ownership control over reserve lands and "possess relatively
broad powers for the local management of their affairs, under the
department's usual trust supervision common to all reservations
generally." Memorandum from Regional Solicitor, Anchorage, to
Anchorage Superintendent, BIA, "Native Village of Karluk and the
[R]eservation at Karluk,"January 22, 1968; quoted in D. CASE,
ALASKA NATIVES AND AMERICAN LAWS at 107 (1984).
23. 117 CONG. REC. 38440 (daily ed. Nov. 1, 1971). See also
116 CONG. REC. 24216, 24220-27, 24234-35, 24378-82 (daily ed.
July 14, 1970) (remarks of Senator Fred Harris strongly opposing
any proposals to terminate Native American programs for Alaska
Natives). More recently, Senator Stevens reiterated that:
ANCSA was and is a land settlement. It
did not terminate the special relationship
between Alaska Natives and the Federal
Government or resolve any questions
concerning the governmental status, if any,
of various Native groups. There's not one
reference to sovereignty in ANCSA or in the
1971 Conference report. The Act's
declaration of settlement is very clear. It
extinguishes aboriginal claims of settlement
and aboriginal hunting and fishing rights,
and nothing more or less.
Hearings on S. 2065 before the Subcommittee on Public Lands of
the Senate Committee on Energy and Natural Resources, 99th Cong.,
2d Sess. 329 (1986) (Statement of Senator Stevens).
24. The United States Supreme Court has recognized that the
right to aboriginal title is a tribal one. Oneida Indian Nation
v. Oneida County, 414 U.S. 661, 667, 669 (1974).
25. H.R. REP. No. 523, 92d Cong., 1st Sess. 4 (1971);
quoted in Smith & Kancewick, The Tribal Status of Alaska Natives,
61 U. Colo. L. Rev. 455, 510 (1990).
26. It is interesting to note that Congress employed a
corporate mechanism almost forty years earlier to encourage
Native American tribal economic development in section 17 of the
Indian Reorganization Act.
27. Act of Dec. 2, 1980, P.L. 96-487, 94 Stat. 2371. As
Venetie aptly points out to the court:
[With ANILCA,] Congress extended the tax
exemptions for Native Corporation land,
created a tax exemption for land which
individual Natives received from their
corporations as shareholder homesites, and
allowed Native Corporations to amend their
bylaws in two important ways: to give them
selves a "right of first refusal"over sales
of Native Corporation shares, and to limit
voting rights to Natives or descendants of
Natives. The rights of first refusal and
Native-only voting limitations were "designed
to limit the possibility of take over of
Native Corporations by outside interests."S.
REP. NO. 96-413, 96th Cong., 1st Sess. 310
(1979), reprinted in 1980 U.S. CODE CONG. &
ADM. NEWS 5070, 5254.
Further, ANILCA established a "land
bank" into which Village Corporations could
put their land, thereby obtaining immunity
from adverse possession, real property taxes
on undeveloped property, and judgment
execution. The Village Corporation had to
agree not to alienate or pledge the lands
(except for the required conveyances under
ANCSA 14(c), 43 U.S.C. 1613(c)). The
statute explicitly provided that "For
purposes of this section only, each agreement
entered into with [an Alaska Native
Corporation] shall constitute a restriction
against alienation imposed by the United
States upon the lands subject to the
agreement." 43 U.S.C. 1636(b)(1)(emphasis
ANILCA provided Land Bank
protection for all undeveloped Native
Corporation land for at least three years. 43
U.S.C. 1636(d). Yet Congress eventually
concluded that this, too, was not sufficient.
In 11 of the Alaska Native Claims
Settlement Act Amendments of 1987, Pub. L.
100-241, 101 Stat. 1788, Land Bank
protections are made automatic and permanent
and extended to corporate bankruptcy
proceedings. See 43 U.S.C. 1636(d)(1).
They are to remain in effect so long as the
corporation involved remained under Native
control. See 43 U.S.C. 1636(d)(4).
Expansion of the Land Bank program is meant
to promote the "sound""underlying concept of
protecting Native land ownership." S. REP.
NO. 100-201, 100th Cong., 1st Sess. 36
(1986), reprinted in 1988 U.S. CODE CONG. &
ADM. NEWS 3269, 3286.
28. Pub. L. 100-241, 101 Stat. 1788. Indian legislation is
entitled to favorable rules of judicial construction and any
ambiguities must be construed in favor of Indian rights. Bryan v.
Itasca County, 426 U.S. 373, 392 (1976); Alaska Pacific Fisheries
Co. v. United States, 248 U.S. 78, 89 (1918); In re City of Nome,
Alaska, 780 P.2d 363, 367 (Alaska 1989). As the United States
Supreme Court explained, favorable rules of judicial construction
apply to Indian legislation because,
Indians stand in a special relation to
the federal government from which the states
are excluded unless the Congress has
manifested a clear purpose to terminate
immunity and allow states to treat Indians as
part of the general community.
Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 613-14
(1943); quoted in Bryan, 426 U.S. at 392. This court has
recognized that this principle applies equally to ANCSA. See
Hakala v. Atxam Corp., 753 P.2d 1144, 1147 (Alaska 1988)
(ambiguities in ANCSA, as in other federal statutes for the
benefit of Indians, are to be construed in favor of the Indians).
29. The residents of the reservation opted to keep their
reservation lands intact rather than become shareholders in the
Doyon regional corporation or receive any distributions of money
from the Alaska Native Fund. See February 20, 1973 letter from
the Solicitor's office to Gideon James in Arctic Village. The
state-chartered ANCSA corporations formed for Venetie and Arctic
Village were eventually deeded the former reservation lands in
fee simple which were then conveyed to the Native Village of
Venetie Tribal Government, which now holds the land in fee
30. The federal government has maintained its special
relationship with Alaska Natives to facilitate the goals of self-
determination. This circumstance is evidenced by the fact that
ANCSA villages have been recognized in virtually all modern
Indian legislation enacted since 1971. See e.g. Indian Self-
Determination and Education Assistance Act of 1975, 25 U.S.C.
450a(b), 450b(e) (policy of U.S. "is committed to supporting and
assisting Indian tribes in the development of strong and stable
tribal governments"); Indian Child Welfare Act of 1978, 25 U.S.C.
1901 ("[r]ecognizing the special relationship between the
United States and the Indian tribes and their members . . .
(2). . . Congress, through statutes, treaties, and the general
course of dealing with Indian tribes, has assumed responsibility
for the protection and preservation of Indian tribes and their
resources"); Indian Financing Act of 1974, 25 U.S.C. 1451,
1452(c), 31 U.S.C. 7102 (tribes, including Alaska Native
Villages, defined as "states"and thus as governments entitled to
benefits of the Act); and Indian Tribal Tax Status Act of 1986,
26 U.S.C. 7701(40), 7871 (Indian tribal governments treated as
States for certain purposes).
31. 25 U.S.C. 476, 477.
32. See also F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 325-
26 (1982 ed.).
In passing the IRA Congress intended to
allow the tribes a certain amount of freedom
to enter and compete in the private business
world. Early drafts of the Act proposed a
single tribal entity continuing the tribes'
preexisting power to govern its members polit
ically and adding new corporate powers to
allow the tribe to engage in business
dealings. An objection was raised that
tribal immunity would prevent such an entity
from obtaining credit. To resolve this
problem, Congress authorized the tribes to
organize two separate entities: a political
governing body to exercise preexisting powers
of self-government pursuant to section 16 of
the Act, and a new tribal corporation to
engage in business transactions pursuant to
section 17. . . .
Those tribes electing to form section
17 business corporations received a charter
drafted by the Bureau of Indian Affairs.
These charters often contain a clause
allowing the corporation to sue and be sued.
Some courts have held this language to be a
waiver of the immunity of the tribal
corporation. But this waiver is limited to
actions involving the business activities of
the section 17 corporation. Complications in
determining the waiver can arise from the
fact that many tribes have not clearly
separated the activities of their section 16
tribal governments from the section 17
business corporations. This should not
broaden the consent provision, because
congressional authority for the consent to
suit is clearly predicated on the existence
of two different organizations and is limited
to business transactions. Any action against
the tribe acting in a governmental capacity
is beyond the scope of the waiver and should
33. For example, compare Boe v. Fort Belknap Indian Comm.,
642 F.2d 276 (9th Cir. 1981), aff'g 455 F.Supp. 462 (D. Mont.
1978); Parker Drilling Co. v. Metlakatla Indian Comm., 451
F.Supp. 1127 (D. Alaska 1978); Martinez v. Southern Ute Tribe,
374 P.2d 691 (Colo. 1962).
34. See Indian Reorganization Act, 25 U.S.C. 461-479
(1976); Indian Self-Determination and Education Assistance Act
3, 25 U.S.C. 450a (1976).
35. A tribe need not first show that it "has a functioning
tribal court," nor establish what its jurisdiction is, before
exhaustion principles apply. In Iowa Mutual, the United States
Supreme Court quoted a lower court's holding which found:
[w]e merely permit the tribal court to
initially determine its own jurisdiction.
The tribal court's determination can be
reviewed later 'with the benefit of [tribal
court] expertise in such matters.'
480 U.S. at 14 (citations omitted). In support for this position
the Supreme Court stated:
[In National Farmers Union] we refused
to foreclose tribal court jurisdiction over a
civil dispute involving a non-Indian. . . .
We concluded that, although the existence of
tribal court jurisdiction presented a federal
question . . . considerations of comity
direct that tribal remedies be exhausted
before the question is addressed by the
District Court. . . . Promotion of tribal
self-government and self-determination
required that the Tribal Court have "the
first opportunity to evaluate the factual and
legal bases for the challenge" to its
Id. at 15-16 (citations omitted). The Court further reasoned:
Tribal authority over the
activities on non-Indians on reservation
lands is an important part of tribal
sovereignty. . . . Civil jurisdiction over
such activities presumptively lies in the
tribal courts unless affirmatively
limited. . . .
Id. at 18 (emphasis added) (citations omitted).