AG says Alaska's tribes have legal sovereignty
Oct. 20, 2017
ANCHORAGE, Alaska (AP) — The state's top lawyer released a legal opinion Friday saying that, despite some misconceptions, Alaska Native tribes have sovereignty and legally exist in the state.
State Attorney General Jahna Lindemuth wrote the opinion at the request of Gov. Bill Walker, who had heard concerns from his tribal advisory council about a perceived lack of recognition of the status of tribal sovereignty in the state. Some misconceptions involve the state's unique Alaska Native Claims Settlement Act.
"The existence of a tribe or tribal government does not require a federal determination and tribal sovereignty does not originate with the federal government," Lindemuth wrote. "That said, the United States Constitution gives Congress the authority to legislate with respect to Indian tribes."
The 16-page opinion outlines tribal issues clarified over the years by the courts. It does not take positions on areas courts have not addressed.
For example, Lindemuth notes that tribes are legal entities separate from other governments. The state, however, initially held that legally, tribes did not exist. The federal government formally recognized Alaska tribes in 1994, a determination that was initially challenged by the state.
Currently, there are 229 federally recognized tribes in Alaska. There is just one reservation, the southeast Alaska community of Metlakatla.
Lindemuth said in the document there continue to be misunderstandings about Alaska's tribes. A common misconception is that tribes were legally terminated by the 1971 Alaska Native Claims Settlement Act.
That law compensated tribes for the loss of historically used lands and established regional and village Native corporations. It also let the corporations select 44 million acres and appropriated them nearly $963 million.
According to the opinion, tribes were not explicitly extinguished by ANCSA, thus their status as sovereign governments is not affected. In fact, the Alaska Supreme Court has consistently recognized the tribes' inherent sovereignty.
The document says that sovereignty also includes the jurisdiction to initiate Indian Child Welfare Act child custody proceedings. Lindemuth said related tribal court orders are entitled to "full faith and credit" by state courts and its agencies.
Tribal sovereignty also includes a "plausible claim" to terminate parental rights to children in a tribe, even when a parent is not a tribal citizen.
"Further, tribal court remedies must be exhausted before a tribal court decision can be collaterally attacked in state court," Lindamuth wrote.