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Native News
Smoke Signals
U.S. Supreme Court issues
ruling in tribal sovereignty case
ANCHORAGE, AK The unanimous and un
usually short 13-page decision written by Justice
Clarence Thomas came in a much-watched land
mark case brought by the State of Alaska twelve
years ago to block an outside construction com
pany from paying a tribal tax that funds road re
pairs, maintenance of a rudimentary airstrip, and
other governmental services in the Native village
of Venetie. The ruling reverses the Ninth Circuit
Court of Appeals decision that upheld the tribal tax.
Much of the litigation centered on the interpreta
tion of the Alaska Native Claims Settlement Act
(ANCSA), the largest tribal land claims settlement
in American history. Under the Act, Congress ex
tinguished Alaska tribal claims to 340 million acres
in return for a cash payment of $962.5 million and
secure title to 44 million acres selected and to be
divided under a complex formula. In an unprece
dented move in federaltribal relations, Congress
directed that the 44 million acres be conveyed not
to the Alaska tribes, but to new Native corpora
tions which the tribes were required to establish
under state law. At the same time, Congress elimi
nated some federal controls over land development
that generally apply on Indian reservations else
where. In the end, some 200 village tribes took
part in the land claims settlement.
The particular conflict that gave rise to the litiga
tion in this case involved the application of ANCSA
to the Venetie Tribe of Neetsaii Gwich'in Indians
a remote Athabascan tribe that inhabits a vast area
north of the Arctic Circle and hundreds of miles away
from Alaska's major population centers. Accessible
only by air, boat, snowmobile, or dogsled, tribal
members largely live a traditional life based on hunt
ing, fishing, and trapping. The Tribal Council ad
ministers all essential governmental services other
than the federally supported local school.
In 1943, the Secretary of the Interior set aside
$1.9 million acre reservation in order to protect
the Venetie Tribe from outsiders encroaching on
tribal hunting and trapping grounds. During the
late 1960s the Tribe opposed the evolving ANCSA
legislation. The Tribe wrote to Congress to retain
its reservation, even if it meant giving up the cash
settlement. Congress obliged and the Tribe re
ceived no share of the monetary settlement. Still,
Congress required that the land initially be con
veyed to two state chartered corporations estab
lished by the Tribe for its tribal citizens. Once the
lands were conveyed, the corporations immediately
reconveyed the lands back to the Venetie Tribe,
which still owns the lands today.
In ruling against the Tribe's continued right to
tax, the Supreme Court reasoned that when a res
ervation does not exist, Indian tribes can only con
tinue to govern their lands if those lands qualify as
a "dependent Indian community," under a 1948
federal law known as the Indian Country statute.
The Court then ruled that Venetie's lands could
not satisfy the standard because Congress initially
conveyed the lands to the corporations for what
ever use they might, and because Congress had
deliberately chosen to forego any control over how
those choices would be made.
Native American Rights Fund (NARF) attorney
Heather Kendall-Miller called the opinion "super
ficial and poorly-reasoned." She said that "over
thirty years ago Congress abandoned the Court's
paternalistic view of keeping Indians under abso
lute federal control and of being unable to take
charge of their own affairs. Instead, Congress did
everything to promote tribal independence and self
governance. The Court's analysis today twists that
policy into a cruel and backhanded termination of
the very rights it was intended to promote."
NCAI News: Legislative Update
Senator Gorton introduces bill
As tribal leaders were forewarned by Senator
Dan Inouye (D-Hawaii) at the National Congress
of American Indians (NCAI) gathering in early
January of this year, Senator Slade Gorton (R-WA)
introduced legislation on February 27, 1998 that
would remove tribal government sovereign immu
nity and make tribal governments subject to law
suits in federal and state courts. The bill, S. 1691,
was referred to the Senate Committee on Indian
Affairs (SCIA).
The SCIA has scheduled hearings for this issue.
NCAI President W. Ron Allen has been invited to
testify, along with a number of tribal leaders and
legal experts. Senator Gorton has not yet identi
fied to the SCIA the witnesses that he will invite to
testify.
Senator Gorton's bill will certainly be subject to
further analysis in the coming weeks, but a pre
liminary review indicates that the bill is similar in
scope to Section 120, the budget rider that Senator
Gorton attempted to attach to the FY 1998 Interior
Appropriations bill. The bill is more detailed in its
mechanisms, but contains extremely broad waiv
ers of tribal sovereign immunity that would make
it highly difficult to carry out government func
' tions. In brief, S. 1691 would:
1) waive tribal government immunity for tort
to remove tribal immunity
claims to the same extent as a private organi
zation except for punitive damages;
2) waive tribal government immunity for con
tract claims;
3) waive tribal government immunity regard
ing the collection of state taxes;
4) subject tribal governments to lawsuits in fed
eral district courts;
5) subject tribal governments to lawsuits in
state courts under state law for torts and con
tracts; 6) waive tribal government immunity for pur
poses of the Indian Civil Rights Act and create
a cause of action under that act in federal dis
trict courts.
In summary, S. 1691 promotes the notion that
an Indian tribal government should be treated no
differently than any private individual or organi
zation and represents Senator Gorton's desire to
extinguish hundreds of years of federal Indian
policy that protects the sovereign status of tribal
governments. In the coming weeks and months,
NCAI will be mobilizing efforts to defeat S. 1691
and the misrepresentations of tribal governance that
it embodies.
For more information, please contact the National
Congress of American Indians at (202) 466-7767.
Spirit Mountain Development
strives for economic diversity
By Adam Henny, Public Relations Specialist
As a result of the hardships of Termination, and
the long struggle for Restoration, the tribal leaders
vowed to achieve self-sufficiency and economic
security for the Tribe.
In 1988, the Tribe received 9,811 acres of tim
berland and began to generate timber revenue.
However, it soon became clear that the timber alone
could not enable the Tribe to become self-sufficient:
it didn't produce enough revenue to meet
the Tribe's needs and restrictions placed on log
ging activities by Congress, combined with the
volatility of timber markets, made timber an unre
liable source of income.
The Tribal Council soon realized that we needed
to diversify to secure the Tribe's economic future.
The Council set up Spirit Mountain Development
Corporation (SMDC) to develop a diversified asset
of businesses. Thus, diversification has always been
a primary goal of Spirit Mountain Development.
The first project undertaken by SMDC was gam
ing. Although the Casino has been very success
ful, gaming is subject to even greater uncertainties
than timber. The Tribal Council recognized the
need to develop other businesses outside of gam
ing and Spirit Mountain Development has pursued
other sound economic opportunities. The first de
velopment since the Casino' is the retail center in
Salem. We are working in partnership with a very
experienced real estate developer with a long his
tory of success in similar projects. We also se
lected real estate, because it is, in general, a con
servative investment. ,
So far, SMDC has been able to insulate the Tribe
from major risk by obtaining non-resource financ
ing. Through sound diversification and limited li
ability by SMDC, the Tribe is securing its future
by not relying on one source of income.
Spirit Mountain Development has been guided
in making sound and profitable investments for the
Tribe by an extremely experienced and qualified
Board of Directors. The next issue of Smoke Sig
nals will feature an article on SMDC's Board of
Directors and management team.
Grant to aid Warm Springs
educational program
CORVALLIS, OR - The GTE Foundation has
awarded Oregon State University (OSU) a $30,000
grant to assist with development of its Bachelor's
degree program at the Warm Springs Indian Res
ervation. This innovative program is allowing
Native American students to earn, for the first time,
complete Bachelor's degrees in natural resources
or environmental sciences without ever leaving the
reservation.
The grant is one of only 15 awarded nationally
by the GTE Foundation for 1998. It will help sup
port student scholarships and a part-time adviser
and program coordinator at the Warm Springs site
elements that university officials say "is critical
to the success of new programs such as this."
The goal is to provide lifelong education from
high school through retirement. The Warm Springs
initiative, in particular, seeks to meet the needs of
students who want an advanced education but are
concerned about interrupting the social and cul
tural ties provided by the reservation, or lack the
time or financial resources to pursue a college de
gree elsewhere.
The grant is part of GTE's annual "FOCUS" pro
gram, which has awarded a total of $6.1 million
since its inception in 1982.