Sovereignty and Tribal Courts in
Alaska
Tribal Management Program
Kevin Illingworth J.D.
University of Alaska Fairbanks
Interior Aleutians Campus
College of Rural and Community Development
Department of Community, Indigenous and Tribal Programs
907-474-5710
[email protected]
What is Sovereignty?
sov·er·eign·ty
1. the quality or state of being sovereign.
2. the status, dominion, power, or authority of a
sovereign; royalty.
3. supreme and independent power or authority in
government as possessed or claimed by a state or
community.
4. rightful status, independence, or prerogative.
5. a sovereign state, community, or political unit.
-Dictionary.com
2
What is Tribal Sovereignty?
Inherent Sovereignty is a recognition by the federal
government that tribal authority existed prior to the
formation of the US government.
-This means Indian governments have inherent
sovereignty that does not come from any other
government, but rather from the people themselves.
"Indian tribes have inherent powers deriving from a
sovereign status. Their claim to sovereignty long predates that of our own government." -US Supreme Court in McClanahan v.
Arizona Tax Commission
3
Inherent Sovereignty is the most
unique aspect of US Federal
Indian Law
“Perhaps the most basic principles of all Indian
law…..is the principle that those powers which
are lawfully vested in an Indian tribe are not in
general delegated powers granted by express
acts of Congress, but rather inherent powers of
a limited sovereign which has never been
extinguished.” – Felix Cohen Handbook of Federal Indian Law
4
Pathway of Sovereignty
The Pathway to Exercising Tribal Sovereignty:
1.Sovereign powers belong to the members
(inherent sovereignty)
2.Tribal members delegate some of those powers
to tribal councils to exercise, typically through
tribal constitutions.
3.Tribal members may reserve some powers to
themselves, such as the power to sell land.
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Tribal Sovereignty in Alaska
Important Events:
1.Colonization by Russia
2.Purchase by United States- Treaty of Cession
3.Emerging Federal Court cases and Statutes
4.Statehood
5.ANCSA
6.Federal Recognition and the ‘1994 Tribe List Act’
7.Tribal Sovereignty in Alaska today.
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Tribal Sovereignty in
Alaska prior to Statehood
“…it is clear that no distinction has been or can be
made between the Indians and other natives of
Alaska so far as the laws and relations of the
United States are concerned…”- 1932 Solicitors Opinion
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Tribal Sovereignty in Alaska
Important Events:
1.Colonization by Russia
2.Purchase by United States- Treaty of Cession
3.Emerging Federal Court cases and Statutes
4.Statehood
5.ANCSA
6.Federal Recognition and the ‘1994 Tribe List Act’
7.Tribal Sovereignty in Alaska today.
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Tribal Sovereignty in Alaska:
ANCSA
“Ample evidence exists that Congress did not intend for
ANCSA to divest tribes of their powers to adjudicate
domestic disputes between members. Congress intended
ANCSA to free Alaska Natives from the dictates of
"lengthy wardship or trusteeship," not to handicap tribes
by divesting them of their sovereign powers… nowhere
does the law express any intent to force Alaska Natives to
abandon their sovereignty.” -Alaska Supreme Court in John v Baker
9
Tribal Sovereignty in Alaska
Important Events:
1.Colonization by Russia
2.Purchase by United States- Treaty of Cession
3.Emerging Federal Court cases and Statutes
4.Statehood
5.ANCSA
6.Federal Recognition and the ‘1994 Tribe List Act’
7.Tribal Sovereignty in Alaska today.
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Tribal Sovereignty in Alaska
Today
“Tribes existed in Alaska before the formation of the
United States and the State of Alaska. The
existence of Tribes in Alaska, and their inherent
sovereignty, has been recognized by all three
branches of the federal government.” - State of Alaska,
Administrative Order 186, Sept. 2000
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Tribal Sovereignty in Alaska
“…tribal sovereignty stems from two intertwined sources:
tribal membership and tribal land. The United States
Supreme Court has recognized the dual nature of Indian
sovereignty for more than a century and a half; the Court
has explained that, under federal law, "Indian tribes are
unique aggregations possessing attributes of sovereignty
over both their members and their territory." -Alaska Supreme Court
in John v. Baker
-Because of the 1998 Venetie Tax Case, tribal authority over land
has been limited.
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Inherent Authority of Alaska Tribes
Inherent Authority is the primary source of tribal authority
for tribal governments to operate a justice system.
“Do Alaska Native villages have inherent, nonterritorial sovereignty allowing them to resolve
domestic disputes between their own members?… we
hold that Alaska Native tribes, by virtue of their
inherent powers as sovereign nations, do possess
that authority.”
-Alaska Supreme Court in John v Baker
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Tribal Sovereignty in Alaska
“Because Alaska Native tribes have inherent sovereignty
to adjudicate internal tribal disputes, the tribes must be
able to apply their tribal law to those disputes. Thus,
tribal sovereignty over issues like family relations
includes the right to enforce tribal law in resolving
disputes.” -Alaska Supreme Court in John v Baker
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Tribal Sovereignty in Alaska
Tribal Courts are not new, they are the
modern manifestations of traditional
justice systems.
“Traditional Athabascan Law
Ways and Their Relationship to
Contemporary Problems in ‘Bush
Justice’”
-1972 Arthur Hippler and Stephen Conn
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Examples of cases heard by Alaska
Tribal Courts:
•Adoptions
•Child Custody
•Child Protection
•ICWA Intervention
•Marriages/Divorces
•Probate/Inheritance
•Cultural Protections
•Domestic Violence
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Examples of other civil cases heard by
Alaska Tribal Courts:
•Driving Under the Influence
•Assault/Disorderly Conduct
•Juvenile Delinquency
•Vandalism
•Misuse of Firearm
•Trespass
•Drug and Alcohol Regulation
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Even more cases heard by Alaska
Tribal Courts:
•Contract Disputes
•Employment Disputes
•Environmental Regulation
•Natural Resource Regulation & Management
•Cultural Protections
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Tribal Sovereignty in
Alaska
“By acknowledging tribal jurisdiction, we enhance the
opportunity for Native villages and the state to
cooperate... Recognizing the ability and power of tribes
to resolve internal disputes in their own forums, while
preserving the right of access to state courts, can only
help in the administration of justice for all.” -Alaska Supreme Court
in John v. Baker
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Thank you,
Chin’an