Tribal Governments & Federal Law
The transition of tribal governments from the traditional to the modern era is marked by several important events and government policy that at times promoted assimilation and eradication of Indian Tribes and that at other times supported the Tribes and the tribal governments as sovereign entities. There are generally considered to be five periods in U.S. and tribal relations.
- 1789-1871 - formative period
- 1871-1928 - period of assimilation policy
- 1928-1945 - reorganization period
- 1945-1961 - termination era
- 1961- present - period of self-determination
In order to illustrate some of the dynamics of these periods a few examples of some significant events are described in more detail in the following paragraphs.
In 1885 Congress passed the Major Crimes Act. The circumstances leading to the passage of this act illustrate some of the differences between Indian and 'white' societies. The case involved a situation where one Indian had killed another Indian. The Territory of Dakota determined in District Court that a murder had been committed and that the murderer should die by hanging. For the tribe this was a case of self-defense, as the person that had been shot had declared that he was going to kill the one who shot him. Such a threat in tribal society was considered grounds to strike back and it was considered fair and in self-defense that the person who was threatened responded first. The case was eventually appealed to the Supreme Court. The Court ruled in 1883 that the Territory had no jurisdiction in this matter because it had occurred on sovereign tribal land and involved two members of the tribe. Congress, offended by the fact that in their view a murderer had escaped justice, passed legislation that is known as the Major Crimes Act. This Act contained a list of felony crimes that, if committed, would be tried in the U.S. federal court system and not by the tribes. This was the case regardless of whether the perpetrator was Indian and regardless of whether or not the act was committed on an Indian reservation. The Major Crimes Act thus diminished the power of the tribes and shows how the federal court system with its laws and sense of justice began to gradually replace tribal law which in some cases defined and understood justice differently.
Another significant event in U.S. and tribal relations unfolded during the last part of the nineteenth century, when the cattle ranchers in the West were expanding their operations and sought additional land. The Cattlemen's Association, along with the Friends of the Indians (a missionary group) promoted a plan that would result in additional Indian land becoming available to non Indians. The idea was to break up the community property of the tribal land by offering male Indian head of households up to one hundred and sixty acres of land to which they would hold individual title. This idea was incorporated into policy in the Dawes Act passed by Congress in 1904 (applied to Alaska in 1906.) For the missionaries and many members of Congress the move from community property (reservation property) to individual property (owned by one male head of a household) was a step towards civilizing American Indians. For others it was an opportunity to gain access to more land, because some of the reservation land that was not claimed by male Indian head of households would be put up for lease or sale by Congress. In fact, within a relatively short period of time, between 1900 and 1920, half of the reservation land was leased or sold. Another unfortunate consequence of the Dawes Act was that lands that were claimed by male Indians resulted in a "checker boarding" of allotments, i.e., the allotments were not contiguous. This lack of contiguous boundaries broke up the integration and coherence of Indian societies.
By the 1920s the negative impact of the Dawes Act on Indian nations was obvious. An influential document, the Merriam Report, was published in 1928 and it concluded that the idea of allotments had been a failure that was plagued by corruption and land granting practices (such as allotting land without water or access to water) that had basically destroyed any opportunity for Indians to sustain themselves economically on the allotments that had been distributed. The Merriam Report described how counties had tripled and quadrupled taxes on the 'new' land owners, but offered forgiveness clauses for 'old' land owners. The numbers of foreclosures and bankruptcies was astounding. Ninety million acres, almost two-thirds, of reservation land had been lost. The power of the tribal governments was greatly diminished during this period both because of the total loss of land and the checkerboard nature of the remaining land. The lack of contiguous boundaries that resulted from the Dawes Act continues to bedevil tribal governments today.
In 1934 (amended to include Alaska in 1936) Congress passed the Indian Reorganization Act (IRA). The United States Congress had considered the failed Dawes Act and the Merriam Report and come to a conclusion: Rather than trying to destroy and undermine tribes and nations, the federal government should work with tribal governments to improve the lives of tribal members. The IRA was highly significant in that it reversed the past course of the federal government's relationship with Indian Tribes. The principle of working with tribal governments continues to guide government policy and today many areas, including health, economic development projects, housing, college scholarships, technical training, the protection of allotments, and fire services, to name a few, are recognized as shared concerns of the tribal and federal governments. Alaska's Tribes are very active in pursuing federal resources for the benefit of their members and have been particularly successful in the establishment of health services in both urban and rural areas of the State.
While tribal government in Alaska must be understood within the general historical context of this country there are also some issues that are unique to the State. The surprisingly few lands dedicated by the federal government as Indian reservations and reserves is now one although in the past there were more that were eventually incorporated into corporation lands under ANCSA. Because of its northern location, Alaska, when rights were purchased from the Russians in 1867, was not of much interest to the Western cattlemen or to other groups of settlers moving west. It was, however, of interest to missionaries and miners. Many church groups applied for land from the federal government, often in 360 acre tracts, and were supported in their applications. Land for mining districts was also appropriated by the federal government in Alaska during this time in accordance with the provisions of the Mining Act of 1874.
Alaska Natives pursued land claims with the United States government for land that had been used traditionally and customarily by tribes for thousands of years, however, most missionaries opposed the establishment of reservations and reserves as contrary to their goals of assimilating and Christianizing the Natives. While there were some exceptions most of Alaska's tribes were left without land title. Tribal governments were recognized but there were no clear boundaries within which they operated. Imagine the government of a country that had no land. What would the government do? How would the society survive? Such was the case for most tribal governments in Alaska for about one hundred years until the discovery of oil on the North Slope precipitated a strong incentive to resolve the issues of Alaska Native land claims. The result of the negotiation between Alaska Natives and the U.S. government is known as the Alaska Native Claims Settlement Act (ANCSA) and it was signed into law in 1971. By the terms of ANCSA Alaska Natives gave up claim to millions of acres of land that had been used traditionally in exchange for the establishment of thirteen State chartered corporations that received an infusion of money (962.5 million dollars) to promote the economic well being of Alaska Natives and to preserve their heritage. No money was given directly to tribes under the terms of ANCSA.
Today, tribal governments in Alaska continue to try to sort through issues of land ownership created by the historical and continued tangle of tribes, churches, State and federal government structures and Native village and regional corporations. One way that this sorting out' occurs is through the legal system and one case regarding Alaska's tribal governments was taken all the way to the United States Supreme Court. The legal issues are very complex and complicated and the judicial process can take years before a final decision is rendered. The stakes for tribal governments are high, as without land their position is uncertain. Alaskans can expect to see more disputes over tribal land ownership and tribal government jurisdiction well into the foreseeable future.
There are many other issues before the State involving the roles and responsibilities of tribal governments. One issue is subsistence and the right of Alaska Native tribes to have access to lands of "customary and traditional use" for subsistence purposes. The federal government guaranteed this right under legislation called Alaska National Interest Lands Conservation Act (ANILCA) that was passed in 1980. The issue of subsistence rights in Alaska has divided people in this State (some supporting rural subsistence rights and others not in support) and thus far a compromise has not been forthcoming. How the United States government and Alaska continue to respond to ANILCA will have a direct impact on what happens to traditional communities and tribes.
Tribal governments must also deal with various oil, mining and environmental groups, as the policies, decisions and actions of these groups may have an enormous impact on the well being of a tribe and while these groups are well financed for lobbying efforts, the tribal governments are not. The environmental risks associated with development may have adverse consequences for tribes and their members. Likewise the agenda of some conservation groups to protect Alaska's land from development through the purchase of allotment lands from individual Alaska Native owners and ANCSA corporations has the effect of alienating this land from Native tribes for all future generations.
Tribal governments also face a host of issues related to the nature of contemporary society and culture. The current generation of tribal members must be educated about tribal membership. What does it mean to be a tribal member? What are the roles and responsibilities of members? How does tribal government impact the life of its members? This education in far too many instances is not occurring. Economic issues facing tribal members are crucial, as the growing dependence on cash economies requires opportunities to earn cash wages. As the life expectancy of tribal members continues to lengthen, the needs of the elders must be addressed. Energy, water and sanitation services are becoming increasingly expensive.
The issues surrounding tribal governments today are profound. From the tribal government perspective the successful resolution of many of these issues depends upon educating the citizens of Alaska about Alaska Native history. Too many Alaskans are unaware of the status of tribes in the State and the issues and questions that are before them. Likewise too many Alaskans are unaware of the history, tradition and knowledge that tribal governments can bring to bear in shaping not only the future of their people but the future of the State. The coming decades will be crucial for All Alaskans as tribal governments continue to define their roles in a world that has changed in such a remarkable fashion.