Mitchell Forbes on Powers of Alaska Tribes without Reservations

Mitchell Forbes has published “Beyond Indian Country: The Sovereign Powers of Alaska Tribes Without Reservations” in the Alaska Law Review. PDF

Here is the abstract:

The Alaska Native Claims Settlement Act of 1971 (ANCSA) devised a land entitlement system markedly different from the Indian reservation system that prevailed in the Lower 48 states. It directed the creation of twelve, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations, which would receive the bulk of Native land in the state. This corporate model left nearly all tribes in Alaska without a land base. As such, there is very little Indian Country land in the state over which tribes can exercise territorial-based sovereignty. Yet, the Supreme Court has long recognized the power of tribes to exercise membership-based jurisdiction. This Comment analyzes a range of state and federal court decisions addressing the authority of tribes and argues that Alaska tribes, through membership-based jurisdiction, can exercise various sovereign powers, like the exclusion of nonmembers. Importantly, this membership-based jurisdiction does not depend on lands over which tribes can exercise jurisdiction. Therefore, the exclusionary orders imposed by several Alaska Native tribes during the Covid-19 pandemic in 2020 were valid exercises of the tribes’ sovereign powers.

Highly recommended.

Alaska Law Review Vol. 38 — Selected Indian Law Articles



Alaska Native Corporation Endowment Models
Robert Snigaroff & Craig Richards

New settlement trust provisions in the Tax Cuts and Jobs Act of 2017 have significant implications for Alaska Native Corporation (ANC) business longevity and the appropriateness of an operating business model given ANC goals as stated in their missions. The Alaska Native Claims Settlement Act (ANCSA) authorized the creation of for-profit corporations for the benefit of Alaska Native shareholders. But for Alaska Natives, cultural continuation was and continues to be a desired goal. Considering the typical life span of U.S. corporations and the inevitability of eventual failure, the for-profit corporate model is inconsistent with aspects of the ANC mission. Settlement trust amendments to ANCSA facilitate ANC cultural continuation goals solving the problem of business viability risk. We make a normative case that ANCs should consider increasing endowment business activity. We also discuss the Alaska Permanent Fund and lessons that those structuring settlement trusts might learn from literature on sovereign wealth funds and endowments.

Alaska’s Tribal Trust Lands: A Forgotten History
Kyle E. Scherer

Since the enactment of the Alaska Native Claims Settlement Act in 1971, there has been significant debate over whether the Secretary of the Interior should accept land in trust for the benefit of federally recognized tribes in Alaska. A number of legal opinions have considered the issue and have reached starkly different conclusions. In 2017, the United States accepted in trust a small parcel of land in Craig, Alaska. This affirmative decision drew strong reactions from both sides of the argument. Notably absent from the conversation, however, was any mention or discussion of Alaska’s existing trust parcels. Hidden in plain sight, their stories reflect the complicated history of federal Indian policy in Alaska, and inform the debate over the consequences of any future acquisitions.


Selective Justice: A Crisis of Missing and Murdered Alaska Native Women
Megan Mallonee

Across the country, Indigenous women are murdered more than any other population and go missing at disproportionate rates. This crisis of missing and murdered Indigenous women is amplified in Alaska, where the vast landscape, a confusing jurisdictional scheme, and a history of systemic racism all create significant barriers to justice for Alaska Native women. This Note examines the roots of the crisis and calls for a holistic response that acknowledges the role of colonialism, Indigenous genocide, and governmental failures. While this Note focuses on the epidemic of violence against Alaska Native women in particular, it seeks to provide solutions that will increase the visibility and protection of Indigenous women throughout North America.

“If a person is murdered in the village, you’ll be lucky if someone comes in three, four days to work the murder site and gather what needs to be gathered so you can figure out a case later . . . but if you shoot a moose out of season, you’re going to get two brownshirts there that day.”

New Scholarship on Tribal Court Jurisdiction in Alaska

The Alaska Law Review has published “Advancing Tribal Court Jurisdiction in Alaska.”

Here is the abstract:

Extensive case law already exists in Alaska on the jurisdiction of tribal courts over domestic relations cases, with one of the seminal cases—John v. Baker—establishing that Alaska tribes have jurisdiction even in the absence of Indian country. A common assumption, though, is that Alaska tribes do not have jurisdiction over criminal offenses. This Article argues that both under the logic of John v. Baker and the development of Indian law in the Lower 48, Alaska tribes already possess inherent jurisdiction over criminal offenses within their Native villages. With the gamut of social challenges facing Alaska Natives in rural Alaska, tribes need to be empowered to exercise this jurisdiction.

New Scholarship on Employment Preferences and Statutory Exemptions for Alaska Native Corporations

Gregory S. Fisher & Erin “Faith” Rose have published “Selling Ice in Alaska: Employment Preferences and Statutory Exemptions for Alaska Native Corporations 40 Years After ANCSA” in the Alaska Law Review.

Here is the abstract:

In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in order to settle land disputes between Alaska Natives and the federal government. ANCSA established Alaska Native Corporations (ANCs), which were tasked with managing settlement funds to provide for the health, education, and economic welfare of Alaska Natives. To enable the ANCs to promote the interests of their shareholders, Congress exempted ANCs from certain employment restrictions contained in Title VII of the Civil Rights Act, but did not exempt ANCs from other worker-protective legislation. In subsequent decades, courts reviewing the preferential practices of ANCs have often construed these statutory exemptions narrowly, thus exposing ANCs to liability under various anti-discrimination statutes. This Article argues that Congress never intended to subject ANCs to these pieces of worker-protective legislation, despite court holdings to the contrary. The Article proposes two possible solutions to this discrepancy: (1) congressional amendment of ANCSA to clarify and further limit the extent of ANC liability; and (2) judicial adoption of a two-part test which would consider employment policies giving preference to Alaska Native shareholders in light of Congress’s intent to protect such preferences.

Troy Eid Review of Case & Voluck’s “Alaska Natives and American Laws, 3rd Ed.”

Troy A Eid has published a book review (PDF) of Alaska Natives and American Laws, by David S. Case and David A. Voluck, published in the Alaska Law Review.

An excerpt:

Alaska Natives and American Laws—”Case-Voluck,” for short—has been called the Alaskan equivalent of the late Felix Cohen’s Handbook of Federal Indian Law (“Cohen’s Handbook”), the Bible of the profession. Cohen’s Handbook, a massive work first published in 1941 and revised in recent years by more than three dozen Indian law scholars, itself describes Case-Voluck as a “comprehensive treatise on Alaska Native legal issues.” It is much more than that.

New Scholarship on ANILCA Compliance

Miranda Strong has published “Alaska National Interest Lands Conservation Act Compliance & Nonsubsistence Areas: How Can Alaska Thaw Out Rural & Alaska Native Subsistence Rights?” in the Alaska Law Review.

Here is the abstract:

The Alaska Constitution prevents the Alaska National Interest Lands Conservation Act’s (ANILCA) rural subsistence priority from being enforced. The Federal Government currently manages subsistence on federal lands in Alaska and Alaska can only resume management if it becomes ANILCA compliant. The current federal management system does not sufficiently protect rural and Alaska Natives’ subsistence rights. Alaska’s Legislature must overcome the rural-urban divide to amend its constitution to become ANILCA compliant again by providing a modified rural priority that includes urban Alaska Natives. The Alaska Legislature should repeal the nonsubsistence zones statute because it denies federally defined rural areas the state’s subsistence priority.

Two New Articles on Alaskan Native Issues in Alaska Law Review


Subsistence Hunting and Fishing in Alaska: Does ANILCA’s Rural Subsistence Priority Really Conflict with the Alaska Constitution? by Jack B. McGee

Note: One Company, Two Worlds: The Case for Alaska Native Corporations by Travis G. Buchanan