From The Director's Desk
The preservation of tribal existence, one of NARF's five priorities, is the most critical issue facing Indian tribes today. The future of tribes in this country depends ultimately upon secure and permanent land bases, the rights of self-determination necessary to preserve traditional customs and ways of life, and the power and authority that tribal government status entails.
Here in the "lower 48" states federally recognized Tribes, as sovereign governments, possess the power to regulate the internal affairs of their members and the activities within their reservations. They levy taxes, pass land-use and environmental regulations, have tribal police forces, and in some cases issue fish and wildlife regulations. However, in Alaska where 40% of the tribes in the United States reside, its a different story.
Alaska Native villages and the Native American Rights Fund are struggling to uphold a recent court decision in State of Alaska v. Native Village of Venetie that says an Alaska Native tribal council has the same broad authority over its lands as lower-48 reservations -- including some authority on non-tribal members and the ability to levy taxes.
The key word here is struggling. Alaska legislators have created a $1 million "war chest" to fight the ruling and have hired a high-powered Washington lawyer to push for a Supreme Court hearing. Alaska's two U.S. senators have vowed to fight the law in Congress, despite Interior Secretary Bruce Babbitt's statement that he considers the Venetie ruling to be "the law of the land" and that he will oppose any effort by the Alaska congressional delegation to overturn it with legislation.
Clearly, this is an issue that will need constant attention. We must be prepared for a long battle before we can declare total victory.
John E. Echohawk (Pawnee)
Indian Country in Alaska - The Venetie Decision
The Native American Rights Fund represents the Native Village of Venetie in State of Alaska v. Native Village of Venetie, a case that involves the Tribe's authority to impose a tax on a non-member who engages in business activity within the Village - in this case, a contractor company that is building a school in the village. On November 20, 1996 a three-judge panel of the Ninth Circuit Court of Appeals unanimously ruled in the case that the 1971 Alaska Native Claims Settlement Act (ANCSA) did not extinguish Indian Country in Alaska, and that the land occupied by the Neets'aii Gwich'in people of Venetie and Arctic Village is Indian Country. This decision, which overrules a 1994 Federal District Court ruling, represents a complete and unqualified victory for Tribes in Alaska. It eliminates the argument that ANCSA extinguished the territorial power of the Tribes and therefore, will apply to virtually all other Native villages. Specifically, the additional powers that the Tribe will have as a consequence of Indian Country status include the authority to: tax, zone, condemn real property, regulate land use, manage fish and game (although the extent of such authority is unclear) exercise civil and criminal misdemeanor jurisdiction over Tribal members, and under certain circumstances exercise civil jurisdiction over non-Tribal members, as well.
"When [in] 1971, the Native land claims [act] came into law we had a choice of whether to take the land or take the money. And the people very wisely took the land...We call ourselves a sovereign people. And that's the way it should be, because we don't have to ask anybody [when] we're going to hunt on our land or get timber to build our cabins. We go out and do it without any waste, and we have our own laws to follow that [have] been in existence before the white man law came into the village, came into the country. And we still follow that. That's a traditional law."
Venetie & Arctic Village
Venetie (pop. 225) and Arctic Village (pop. 170) are located in northwest Alaska above the Arctic Circle and southeast of the Brooks Range. Both villages are comprised primarily of Neets'aii Gwichin ("residents of the north side") who at one time lived a highly nomadic life, utilizing semi-permanent settlements in pursuit of fish and game for subsistence and trading purposes.
The Venetie Tribal Government owns surface and subsurface title to 1.8 million acres of land held "in common" for the indigenous people of the communities of Venetie, Arctic Village, Christian Village and Kachik or Robert's Fish Camp. The Villages secured their lands in 1943 under the Indian Reorganization Act (IRA). Today most residents have settled in Arctic Village and Venetie. Christian Village and Kachik are summer camps.
Venetie and Arctic Village are each governed by an elected seven-member village council that are recognized by the federal government as official tribal governing bodies. The councils administer a variety of federal programs including local health care, employment assistance, social services and tribal operations.
The economies of Venetie and Arctic village are heavily dependent on subsistence. Village residents hunt waterfowl, whitefish and pike in the late spring and in the summer, many villagers move to fish camps on the Yukon River to fish for king and chum salmon. Fall and winter are devoted to moose and caribou hunting and trapping.
A Brief Alaska History
During the eighteenth century, Russian fur traders found their way to Alaska and came to occupy the Aleutian Islands and southeast Alaska. In 1867 by the Treaty of Cession, Russian sold its "interests" in Alaska to the United States for $7.2 million. The discovery of gold in 1889, the development of commercial salmon fisheries and logging activity brought white settlers into the territory. Over 50 years later, Japan invaded the Aleutian Islands, and more than 140,000 American military personnel were sent to Alaska.
Native land claims in Alaska date back to 1867, but it was not until 1958 that the settlement of land claims acquired a new urgency. Although the Statehood Act disclaimed any right to land and property held by Alaska Natives or held in trust for them, it granted to the new state the right to select from the public domain more than 103 million acres "which are vacant, unappropriated, and unreserved". Despite the fact that aboriginal title had never been extinguished, the state considered lands used by Alaska Natives for subsistence activities to fall within the public domain.
In 1966, Alaska Natives established a statewide organization, the Alaska Federation of Natives, that recommended that the Department of Interior cease all disposals of land pending a land claims settlement; that Congress pass a law to settle the claims; and that Alaska Natives play an active role in developing such a law (what would become ANCSA). As a result, Stewart Udall, Secretary of Interior at the time, stopped the transfer of state-selected lands. Then, after the discovery of oil at Prudhoe Bay in 1968 and at the urging of oil companies, legislators recognized the need to address the question of aboriginal claims in Alaska. For the proposed 900 hundred mile pipeline from Prudhoe Bay to the Gulf of Alaska crossed through aboriginal lands of several Alaska Native villages. This gave rise to the development and passage of the Alaska Native Claims Settlement Act.
Alaska Native Claims Settlement Act
In 1971 Alaska Natives held aboriginal title to virtually all of Alaska, a title based on Native use and occupation of the land since time immemorial. However, with the passage of the Alaska Native Claims Settlement Act (ANCSA) in 1971, Congress extinguished the aboriginal title Alaska Natives held to their lands throughout Alaska. In an effort to settle the land claims by the villages, ANCSA reserved 44 million acres of land (about 10% of Alaska's territory) for twelve regional corporations and more than 200 village corporations. The federal government reserved about 197 million acres (60%) for itself and the state selected 124 million acres (30%). As compensation for the 90% of the state claimed by the state and federal governments, Alaska Natives were paid $962.5 million -- a mere three dollars per acre.
Venetie and Arctic Village elected to keep their traditional homeland that was secured in 1934 and forego the monetary compensation.
Rulings in the Case
Following a trial in 1993 on whether the Native Village of Venetie is an Indian tribe as defined under federal law and whether the Village is a "dependent Indian community" and thus Indian Country, the federal district court ruled in 1994 that Venetie, which is organized under the Indian Reorganization Act, has tribal status. The questioned remained as to whether the Tribe had the power to levy taxes.
Tribal status for tribes means that a Native community is recognized by the federal government as a political institution holding limited sovereign powers of self-government. "Indian Country" is the geographic area which a federally recognized tribe may exercise its powers of self-government. Although tribal status is essential to Indian Country, the fact that an area is occupied by a federally recognized tribe does not alone make it Indian Country. Other criteria must be considered including the degree of federal control of the area and the extent to which the area and the extent to which the area was set aside for the use, occupancy and protection of dependent Native people.
In August 1995, the Alaska federal district court, ruled that Venetie, although a tribe, is not a dependent Indian community under federal law and therefore is not Indian Country in which it can impose tribal taxes. Judge Russell Holland's ruling said that Native land in Alaska could no longer be considered Indian country because through ANCSA the land was set aside for corporations, not tribes, and was not under the active supervision of the federal government. The court reasoned that Indian Country can exist only "where the degree of congressional and executive control over the Alaska Native tribe is so pervasive as to evidence an intention that the federal government, not the state, be the dominant political institution in the area." Furthermore, the District Court found that Venetie does not qualify as a "dependent Indian community" because it does not occupy lands specifically "set-aside" for the use of Indians.
NARF appealed the decision to the Ninth Circuit Court of Appeals saying that ANCSA extinguished aboriginal land claims only. It did not eliminate the "trust relationship" between the federal government and Alaska Natives, nor tribal or Indian Country status of Alaska Native villages. In addition, NARF argued that Venetie's one million acres held by the tribe in fee simple and occupied almost exclusively by tribal members is a dependent Indian community over which the tribe has jurisdiction.
The Ninth Circuit Court of Appeals concurred and in its recent decision rule that the corporations that were created by ANCSA are owned and managed by Natives, are controlled by the villages, and maintain a "distinctly Native identity" -- all standards used to determine Indian Country.
Although the Neetsaii Gwich'in have much to celebrate about this landmark decision, the State of Alaska is busy building its opposition. Following an unsuccessful petition to the Ninth Circuit to reconsider its ruling, the state is now asking the United States Supreme Court to hear the case.
In addition, United States Senator Ted Stevens (R-Alaska) has said that if the state fails to get the ruling overturned in court, he, Senator Frank Murkowski (R-Alaska) and Representative Don Young (R-Alaska) will attack it in Congress.
On the Case
Lawrence "Lare" Aschenbrenner has been on the NARF staff for 16 years and has served as the Directing Attorney of the Alaska office for the past ten years. Lare has over 36 years of litigation experience and previously served as the Directing Attorney for NARF's Washington, D.C. office. He earned his law degree from the University of Oregon and completed his undergraduate work there, as well.
Prior to joining NARF's staff, Lare served in a number of legal capacities, including Acting Associate Solicitor for Indian Affairs and Assistant Solicitor for Indian Affairs in the Department of the Interior from 1974 through February 1977. In addition, he has been the Deputy Attorney General for the Navajo Nation, 1982-84; Chief Counsel for the Lawyers' Committee for Civil Rights Under Law in Jackson, Mississippi, 1967-69; a partner in a public interest law firm in Oregon; the first Public Defender for the State of Oregon; and District Attorney for Josephine County, Oregon. Lare's legal responsibilities in Indian law have related primarily to issues and cases involving tribal jurisdiction, lands, minerals, hunting, fishing and water rights, and the environment.
Heather Kendall (Athabascan) has been a staff attorney with NARF since 1993. Her cases focus on Alaska issues of tribal sovereignty and subsistence rights. Heather holds a History degree from the University of Alaska-Fairbanks and a J.D. from Harvard University. Her legal experience includes working as a law clerk for Sonosky, Chambers, Sachse & Miller in Anchorage and Bogle & Gates in San Francisco. Immediately after earning her law degree Heather was a Judicial Clerk for Chief Justice Ray Rabinowitz of the Alaska Supreme Court. A Skadden Fellowship from 1992-93 funded Heather's work with Alaska Legal Services and the Native American Rights Fund where she worked as a staff and research attorney.
The Mashantucket Pequot Tribe raised $650,000 for the Native American Rights Fund through a benefit gala on November 7, 1996 at the Tribe's Foxwood's Resort Casino. Richard "Skip" Hayward -- chairman of the Mashantucket Pequot Tribe, NARF National Support Committee member and former member and Chair of the NARF Board of Directors -- and his wife Carol hosted the event. Several hundred guests including tribal members, tribal employees and business associates of the Tribe chose among four benefactor categories: patron, silver, gold and platinum. Platinum benefactors also received limousine service to and from the Hayward's home for a private reception and luxury overnight accommodations for four at Foxwoods and a gourmet breakfast.
"We are very pleased that Chairman Hayward and the tribe were able to organize this event to benefit tribes all across the nation. This is the third event they've done for us and we greatly appreciate their efforts and hospitality," said John Echohawk.
NARF represented the Mashantucket Pequots in their efforts to gain federal recognition as a Tribe and their land claim settlement.
The Eagle Feather
The Native American Rights Fund is proud to honor Alfonso Ortiz (San Juan Pueblo), anthropologist/author/scholar and NARF National Support Committee member who passed away on January 27, 1997 at his home in Santa Fe, New Mexico. He had recently taken medical leave from teaching cultural and social anthropology at the University of New Mexico (UNM) in Albuquerque, but had hoped to return this semester.
Ortiz is remembered for his countless contributions to higher education and American Indian students. He received a bachelors degree in sociology from the UNM and his masters and doctorate in Anthropology from the University of Chicago. After teaching at Princeton and Rutgers, Ortiz returned to his alma mater in 1974 to teach. Over his long career, he won numerous awards, research grants and scholarships, including a post-doctoral fellowship from the John D. and Catherine T. MacArthur Foundation and the Center for Advanced Study in the Behavioral Sciences, Stanford. Among his public service activities, Ortiz was president of the Association of American Indian Affairs; a member of the Board of Trustees of the National Museum of the American Indian; and member of the National Advisory Council on the National Indian Youth Council. Ortiz was born in 1939 at San Juan Pueblo in Northern New Mexico.
Condolences to the Ortiz family can be sent in care of the Department of Anthropolgy, University of New Mexico.
INDIVIDUAL INDIAN MONEY (IIM) ACCOUNTS CASE UPDATE
In a first-of-its-kind ruling, a federal judge has granted certification to a class of more than 300,000 individual Indian account holders suing the federal government for gross mismanagement of the Indians' multibillion dollar trust fund. The suit now becomes the largest ever brought against the government for financial mismanagement and the broadest such effort by American Indians. The Native American Rights Fund represents the 300,000 account holders.
Class certification guarantees that past and present IIM account holders will be able to pursue in court, for the first time:
A full accounting of the trust funds
The Department of Interior and Treasury are obligated to hold and reinvest individual Indian trust monies for account holders - revenue derived from oil, gas, timber and other leases. But Interior lacks even a basic accounting and accounts receivable system and perhaps tens of billions of dollars are missing or uncollected.
Hau Kolas! Occasionally in the Eyapaha, I like to share with you stories about NARF friends who have done something special to help the Native American Rights Fund. While they share a deep affinity with our continuing struggles for justice on behalf of Native American people, they are usually mature individuals with broad life experiences. Many have gone through events in their lives that have somehow made them feel close to the people in Indian country. That is why we hold them in such high regard and appreciate their wisdom and generosity.
I would like to tell you about a unique young woman. Her name is Sonja Skovsted. I say unique because Sonja -- though a sophomore at Fairview High School in Boulder, Colorado -- has helped to educate and bring understanding about NARF and Indian issues to countless high school students and educators in Colorado.
Sonja first became aware of the issues facing Native Americans after watching the movie "Lakota Woman." She then traveled to the Pine Ridge Reservation in South Dakota. That visit motivated her to compete in her school district's History Day competition. The theme of the competition was "Taking a Stand in History." Sonja's topic was "The Rights of Native Americans."
Sonja's research for the competition led her to the Native American Rights Fund where she learned firsthand from NARF staff and Executive Director John Echohawk about NARF's mission, accomplishments and our efforts to "Stand Firm for Justice." After completing her research, Sonja spent countless hours designing, selecting artwork, writing, compiling quotes and constructing her project, a display board, for the competition.
The results were well worth her efforts. She took First Place in the District Competition which allowed her to compete at the state level. Needless to say, we were extremely proud of her when she and her father came to tell us the great news. Sonja then graciously donate her project to NARF which we will be taking with us whenever we do a presentation or special event.
To Sonja and her family -- we at the Native American Rights Fund appreciate your generosity and your ability at such a young age to recognize the injustices that Native American people have faced. Through your work, you have shared your insight with others. It gives us renewed hope that one day there will be justice for Native Americans because of people like you who have the ability to learn and the courage to act. Pila Miya.
Myths Surrounding Indian Gaming
The Native American Rights Fund would like to take this opportunity to address some of the misconceptions surrounding Indian gaming. As many of our donors are aware, there is a somewhat common belief in American society that Indians "have struck it rich" with the establishment of Indian casinos. However, that is not the case.
Media coverage concerning Indian gaming has focused on the few operations that have seen spectacular success, most notably the Mashantucket Pequot Tribe. However, these operations are the exception, rather than the rule. While few Indian gaming operations are highly successful, with a profit margin of up to 40%, most are only marginally profitable. And given the financial situation on most reservations, it will take several decades of sustained revenue flow to create opportunities for economic parity.
According to the recent "Survey of Grant Giving by American Indian Foundations and Organizations" by Native Americans in Philanthropy, the needs of reservation Indians are so great that even if the total Indian gaming revenue in the country could be divided equally among all the Indians in the country, the amount ($3,000) per person would still not be enough to raise Indian per capita income (currently $4,500) to anywhere near the national average of $14,400. In addition, many tribes may never participate in gaming because of their geographic location in remote areas.
For the "successful" tribal operators, gaming has reduced or eliminated unemployment and has provided a substitute for shrinking federal funds. These tribes are using their revenues to create and maintain tribal police/fire/ambulance services, health and child-care services, educational assistance program, cultural enhancement, and numerous other human service programs. Tribal gaming facilities have also become powerful economic engines for surrounding non-Indian communities. For example, in San Diego county tribal gaming has been responsible for the creation of 1,500 jobs with a payroll of $22 million per year (and associated payroll taxes and employee income taxes). In Minnesota, Indian gaming has become the 7th largest employer in the state. Furthermore, tribal gaming facilities spend millions of dollars every year purchasing goods and services from local sources because there are no other commercial businesses on most reservations. As a result, virtually all services such as grocery stores and service stations in surrounding non-Indian communities benefit from increased visitors to the reservations.