Introduction
Over the past three hundred years, the United States has expanded from a series of British royalist colonies on America’s East Coast to a fully-fledged democratic nation taking up the third-largest land area of any country in the world. As a result of its conquest, the U.S. claimed jurisdiction over the land of thousands of groups indigenous to North America—in many cases, without any consent or recompense for the claimed territory. Across much of the contiguous U.S., the forcible cession of land by Native Americans contributed to the federal reallocation of separate tribal enclaves—“domestic dependent nations”[1]—that initially were able to retain their sovereignty. Over time, however, this sovereignty was undermined through federal legislation, culminating in the 1968 Indian Civil Rights Act that forced Native Americans, previously considered non-parties to the U.S. Constitution and Bill of Rights due to their inability to participate, to become subject to many of its provisions.[2] In many states, unique tribal court systems have developed under the purview of these federal provisions, corresponding to the unique cultural norms of different Indigenous groups across the U.S. and allowing them to reclaim some of their former self-governance. Provided tribal courts follow U.S. guidelines placed upon them by legislation such as the Indian Civil Rights Act, these courts are considered to operate independent of state court systems and their decisions, therefore, must be upheld under the U.S. Constitution’s full faith and credit clause for rulings made by outside jurisdictions.[3] Native American groups are federally recognized as being distinct (and, thus, capable of maintaining their own judicial body) if (a) they are recognized by an act of Congress, (b) they follow Part 83 of the Code of Federal Regulations[4], or (c) a U.S. court designates them a Native American tribe.[5]
While throughout the contiguous U.S. American policy towards tribal court sovereignty is largely similar, significant differences can be seen in the state of Alaska, which has the largest Native population by percent of any U.S. stateand contains almost 40% of the nation’s Native American tribes.[6] In six states across the US, including Alaska, state courts exercise mandatory original criminal and civil jurisdiction over tribal courts in cases involving Native Americans or which take place on Native American land[7]—a decision adopted by the U.S. federal government in 1953 without consulting any Indigenous groups designed to ostensibly provide more federal support to local courts but which in actuality was designed to terminate tribal sovereignty.[8] The legal framework behind this decision is known as Public Law 83-280 (hereinafter abbreviated PL280). Though not initially included in PL280, Alaska was added via amendment in 1958 following its acceptance to the Union as a state.[9]
In some PL280 states, such as California, state and tribal jurisdiction in many cases is interchangeable, and so these states, therefore, have adopted regulations ensuring cases relating to Indigenous Americans can be transferred to or from state courts into or out of tribal courts to preserve their “working relationship.”[10] In Alaska, though, a more distinct pattern of jurisdiction emerges, where tribes exercise jurisdiction over internal civil and domestic affairs[11] and focus on rehabilitative justice initiatives instead of criminal sentencing typically exercised by the State.[12] To resolve the due process issues posed by providing concurrent jurisdiction to state and tribal courts in PL280 states (the ability to try the same case in two courts at the same time, for example), Congress in 1994 passed the Full Faith and Credit doctrine, which states in part (a) that:
Any protection order[13] issued… by the court of one State, Indian tribe, or territory (the issuing State, Indian tribe, or territory) shall be accorded full faith and credit by the court of another State, Indian tribe, or territory (the enforcing State, Indian tribe, or territory) and enforced by the court and law enforcement personnel of the other State, Indian tribal government or [t]erritory as if it were the order of the enforcing State or tribe.[14]
In domestic proceedings, this doctrine is extremely important to ensure that victims of abuse remain protected if they relocate within the country and so that custody and adoption orders cannot be circumvented by moving to an area under a different jurisdiction. In PL280 states, this doctrine requires state courts to uphold the findings of tribal courts in domestic proceedings to remain in accordance with the “double jeopardy” clause of the Fifth Amendment.[15] Alaska, however, still differs from other PL280 states in its execution of this doctrine, given its wording relies on decisions made by the “court of an[] Indian tribe”[16] as recognized by the U.S. federal government. Despite Alaska’s proportionally high Native American population, the legal recognition behind the existence of Indigenous tribes in the State is still under dispute due to Alaska’s unique history of colonization when compared to the contiguous U.S. Despite the thousands of Indigenous corporations within the state, only Annette Island negotiated its tribal status with the U.S. government and created a reservation—therefore, the full faith and credit doctrine remains ambiguous, creating due process concerns for rural Indigenous residents in Alaska who may not have access to traditional state court systems due to geographical distance and instead rely on tribal courts as their primary means of justice. While PL280 was designed ostensibly to reduce due process concerns for tribal members, Alaska’s unique history of Indigenous groups and their relations to the U.S. federal government causes PL280 to impede on indigenous due process rather than provide an avenue for the quicker resolution of cases. Given the legal distinction of Indigenous groups in Alaska, how can existing jurisdiction be modified to preserve the constitutional due process rights guaranteed to Native Alaskans under the Indian Civil Rights Act? Considering the disconnect between PL280 and the recognition of Native Alaskan groups at the federal level, this paper will argue that the best way to resolve the existing tension is by partially repealing the 1968 amendment adding Alaska to PL280, thereby removing concurrent state and tribal jurisdiction over domestic civil issues. First, this paper will provide a high-level contextualization of Native Alaskan colonization and Alaskan Indigenous legal systems and how they differ from those at the federal and state levels; second, it will discuss the intentions behind PL280 and their incongruities in application across Alaskan and other American Indigenous groups; and finally, it will consider the cases of Native Village of Venetie I.R.A. v. Alaska (1990)[17] and John v. Baker (1999)[18] to illuminate how the often pejorative restrictions of PL280 jeapordize Indigenous civil jurisdiction and self-governance. In the end, this article will contextualize the incongruities that exist between the federal treatment of Alaska Native tribes versus those in the contiguous US and determine how best to modify PL280 to ensure the legal sovereignty of Alaska Native groups is protected in ways similar to Indigenous groups throughout the contiguous US.
Colonialism in Alaska and its Judicial Impact
Before the eighteenth century, Alaska was unknown to the rest of the Western world and was occupied by Indigenous Americans of Siberian descent.[19] In pre-contact Alaskan Indigenous groups, civil disputes often were questions of social status rather than actual security, and interpersonal issues were resolved primarily through the means of “retributive justice.” Since severe punishments such as banishing or executing members would have opened a void in communal retributive justice, these exclusionary actions were rarely used.[20] In many cases, Indigenous groups acted to prioritize the continuity of their communities through their justice system, in many cases overlooking petty crimes such as stealing and treating major public crimes as “religious viola[t]ions.”[21] In cases where banishment occurred, exiled members of the group had already worked to separate themselves from their people and culture by “systematic[ally] reject[ing] group norms and subgroup ties” prior to being removed from the group.[22] In general, judicial structures were often created as a result of social necessity: in Inupiaq cultures that relied on whaling, the boat captains (“umalik”), instead of traditional village authorities, typically assumed social control over whalers during the hunting season. In Athabascan groups in central Alaska, these village authorities were responsible for dealing with criminal offenses, and the focus of justice was predominantly to reconcile the actions of a community member with the victim and the perpetrator’s family so as to preserve the communal ties within the Indigenous community. Justice was often considered served if a member expressed public sorrow for their actions and made amends with the victim.[23] Though village chiefs acted as judges for serious crimes, serving as the arbiter of punishment on individual perpetrators, justice in this case was also community-oriented, as the chiefs often based their decisions on the recommendations of other village leaders. Due to the arbitrative processes of village leaders at lower levels, the guilt of a perpetrator was presumed once they were brought before a chief, who dealt only with providing sentencing—predominantly manifesting as social stigma and thus discouraging others from attempting to commit similar crimes.[24]
In the 1770s, however, Russia laid claim to coastal regions around Alaska, primarily interested in farming and exploiting sea otter pelts.[25] In the process, Russian colonists enslaved vast populations of the Aleut people who resided on Alaska’s Aleutian Islands. This process destroyed their Indigenous cultures and introduced diseases that killed almost 80 percent of the Aleut population. As the Aleut population dwindled, Russian colonial endeavors expanded further east on Alaska’s southern coast, seeking to similarly profiteer the labor of the Koniag and Tlingit people. After nearly a decade of cultural destruction, in 1867, Alaska became an American district following the Treaty of Cession.[26] As a result of this treaty, members of the “uncivilized native tribes”[27] of the State were granted the full protections guaranteed to citizens of the United States and were subjected to U.S. laws made on their behalf without any consent of Indigenous groups being provided. The subsequent American colonization of Alaska that followed similarly disrupted Indigenous cultures and judicial systems—this time, predominantly because Alaskan Indigenous groups immediately became subject to U.S. law without any means to voice their opinions given their lack of “special political relationship” with the U.S. federal government which the Treaty of Cessions failed to specify.[28]
In 1887, the Dawes Act was passed to encourage Indigenous groups in the contiguous U.S. to take up farming initiatives on their native land and to break up then-existing stretches of Indigenous territory in an apparent effort to force Indigenous groups to assimilate into a capitalist market.[29] Following this Act, existing Indigenous land previously occupied by Native Alaskans was divided into smaller plots, with these plots being disproportionately being divided among individuals: heads of families, for example, received only 160 acres of land, all other adults eighty, and children forty.[30] Despite the land grants ostensibly offered generously from the U.S. government to Native Alaskans through this Act, this Act caused Indigenous groups in Alaska to disproportionately lose vast swaths of their previous territory, with the remainder being “‘surpluss[ed]’” to settlers and becoming “‘public domain.’”[31] In total, Indigenous groups across Alaska lost ninety million acres from the Dawes Act—a devastating loss of jurisdiction that, when coupled with the federal government’s 1871 Indian Appropriations Act, which declared Alaska Indigenous groups no longer sovereign nations (and, thus, unable to be a party to a U.S. federal treaty)[32], contributed to Indigenous Alaskan communities losing almost all basis for their self-governance.
The United States government first instituted its judicial system in Alaska in 1884 in its First Organic Act, constituting a new federal District Court for the region and compelling the Court to abide by then-existing Oregon law “so far as [they] may be applicable.”[33] This decision posed significant issues for the then-fledgling territory due in large part to its lack of specificity and its arbitrary choice: the U.S. Senate sponsor of the Organic Act explained that Congress “had not ‘made any careful study of the laws either of the state of Oregon or of the Territory of Washington’” but chose Oregon “because the Senators supposed that it was ‘in a more mature and satisfactory shape.’”[34] This lack of attention to detail greatly encumbered early Alaskan judiciaries, as, despite Congress’ suppositions, Oregon law had not been easily condensed—the last compilation of Oregon law had occurred ten years prior to the first Organic Act, and five volumes of Oregon session law had been published in the interim.[35] Congress provided no guidelines for how Alaska courts were to determine the applicability of existing Oregon law as defined in the Organic Act, and courts had no funding to enact any judgment. Many laws proved outright inapplicable given Alaska’s previous lack of federal attention: many criminal trials could not occur, as Oregon law stipulated that juries could only be drawn from tax rolls—yet Congress had yet to tax any Alaska residents, so no tax rolls were available.[36]
In addition to wreaking havoc on statewide systems of governance, the First Organic Act became the basis for the most prominent Alaskan land disputes between Indigenous groups and the U.S. federal government, many of which continue today. Pursuant to § 8 of the Organic Act, Congress created a novel land district headed in the then-capital of Sitka and stipulated
[t]hat the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.[37]
Through the subsequent years, Indigenous groups in Alaska enjoyed various land protections from the federal government, but over time, the caveats of initial legislations, limitations of subsequent acts, and expansions in the role of federal court systems compounded to reduce the impacts of the initial cessions. For example, in the 1891 Act to Repeal Timber-Culture Laws, the U.S. federal government permitted Alaska Native townsites to exercise temporary ownership of the land they resided on, though it capped townsites at no more than 640 acres.[38] At this same time, the federal government designated the “Annette Islands [sic]” to the Metlakatla Indigenous community who resided in the region[39], creating the first (and only) Native reservation in Alaska at a size of around 86,000 acres. To facilitate the expansion of the missionary education system (a process designed to uproot Alaska Native children from their communities, relocate them across the state, and forcibly assimilate them to American culture and the English language[40]), the federal government also allowed schools and church missions to purchase up to 640 acres of Alaska land—stripping Indigenous groups of both their land and culture.[41] Through the 20th century, land disputes continued to be heard in the newly created District Court of Alaska, such as in 1905 case United States v. Berrigan, where District Judge James Wickersham held that “Congress alone has the right to dispose of the lands thus specially reserved for [Alaska Native] occupancy… [Alaska Native people are] dependent ward[s] of the government, and [their] reserved lands are not subject to disposal or sale or abandonment by [them].”[42]
In 1934, the Indian Reorganization Act was passed, terminating the ability for future Native reservations to be established in the U.S. but continuing Indigenous land claims on historical territory and allowing the Secretary of the Interior to disburse previous public land to Indigenous groups at their discretion.[43] In 1936, this law originally meant for tribal use in the contiguous United States was adapted for Alaskan use, finally allowing “[g]roups of Indians in Alaska not heretofore recognized as bands or tribes, but having a common bond of occupation, or association, or residence within a well-defined neighborhood, community, or rural district may organize to adopt constitutions and bylaws and to receive charters of incorporation and Federal loans.”[44] Today, around one-third of all Alaska Native groups are organized under this Act.[45] Though this Act provided a means for which Alaska Native groups could become federally connected, the 1948 Indian Country Statute further inhibited the ability for Alaska Native groups to exercise jurisdiction over their land by defining “Indian country” as “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.”[46] In general, “Indian country” is an area over which Indigenous American tribes have jurisdiction[47] and allows tribes to manage hunting, fishing, and natural resource collection in their territory.[48]
Introduction of Public Law 280 and Modern Alaska Indigenous Courts
On August 15, 1953, Public Law 83-280 (PL280) was signed into law, officially titled “An Act to confer jurisdiction on the States of California, Minnesota, Nebraska, Oregon, and Wisconsin, with respect to criminal offenses and civil causes of action committed or arising on Indian reservations within such States, and for other purposes.” This Act rescinded exclusively tribal jurisdiction for both criminal and civil cases arising on their land and—with limited exceptions—allowed state courts to exercise jurisdiction over all crimes and civil disputes involving Indigenous people.[49] Though the state was not originally included in PL280, Alaska was added by amendment to the legislation in 1958, a year before the territory gained official statehood.[50] In 1968, PL280 was amended so that further states requesting federal intervention in tribal court proceedings must seek the consent of the state’s Indigenous tribes. Since 1968, no tribe has consented to Public Law 280 intervention.[51]
There are varying interpretations concerning the intended purpose of Public Law 280 and its effects on Indigenous judicial systems and self-governance. Many Indigenous groups and legal scholars consider PL280 a pivotal piece of legislation in the so-called “Termination Era” designed to “terminat[e] federal obligations to tribes.”[52] Though some states were given the option to opt into PL280 jurisdiction requirements, the six states specified in the Act (including Alaska) did not have this choice. Ostensibly, this Act was designed to improve federal protections of Indigenous peoples in regions where state courts were unable to provide jurisdiction: in Alaska, for example, PL280 was introduced following a lapse in territorial jurisdiction over a criminal case that occurred on the land of the Tyonek Indigenous group.[53] In general, the adoption of PL280 was brought by a federal desire to reduce their “obligations over Indian affairs, both financial and administrative”[54] in states that contained disproportionately large proportions of Indigenous tribes—359 of the 574 federally recognized tribes exist across just the six mandatory PL280 states.[55]
Though PL280 certainly increased state oversight into Indigenous areas, the law did not address the root cause of the problem it was intended to solve. In a study done by the California court system, it was found that “[t]he lack of funding, confusion over the authority conveyed to local (state-level) law enforcement—what can be enforced and what cannot, lack of training and relationships with tribal officials and police, and overlapping jurisdiction have all contributed to the inconsistent response to crimes on tribal lands.”[56] Indeed, a 2007 survey and private report made to the U.S. Department of Justice analyzing the impact of PL280 on seventeen reservations across the country determined that “[a] large majority of reservation residents in the Public Law 280 tribes… would support retrocession of state jurisdiction” and supported the federal government enacting policies “authorizing tribally initiated retrocession of Public Law 280 jurisdiction” due to its mass public disapproval.[57] Such specific retrocession initiatives between PL280 states and individual Indigenous groups have been historically rare but successful: in June 2012 the state of Washington improved its standards for retrocession, allowing Indigenous groups to apply for complete civil and criminal withdrawal from state jurisdiction; prior to this legislation eleven Indigenous groups in Washington applied for criminal retrocession and only seven of these applications were granted.[58] Carole Goldberg, recipient of the Federal Bar Association’s Lawrence R. Baca Lifetime Achievement Award for Excellence in Federal Indian Law, writes for the American Bar Association that PL280 deserves to be completely “unravel[ed],” discussing issues in disparate police and law enforcement brutality with Indigenous Americans as exacerbated by PL280 and the comparative success federal/tribal law enforcement integration initiatives have had in states like Oregon where tribal police officers are given official state peace officer designations.[59]
While it is clear that some retrocessive steps taken to ameliorate PL280’s “Termination Era” policies that have overly convoluted tribal law in the contiguous US, the same cannot be said for Alaska. To date, no Indigenous group in Alaska has been granted retrocession from Public Law 280.[60] Further, due to the state’s unique colonial history, federal recognition of Indigenous groups is extremely complex and often predicated on decades of case law—further diminishing legal recognition for Alaska Indigenous groups and inhibiting their due process. Given the state’s failure to accommodate growing Indigenous requests for retrocession and jurisdictional issues posed by PL280 in Alaska, therefore, it becomes clear that, absent other attempts to retrocede, the 1958 amendment to PL280 should be partially repealed so as to return Indigenous civil jurisdiction to Alaska Native groups.
In order to understand how PL280 uniquely impacts Alaska Native groups, it is first important to discuss how tribes are federally recognized in Alaska differently than in the contiguous United States. Following almost a century of Congress declining to rule on Indigenous land claims, the federal government decided to resolve all outstanding claims in 1971 via the Alaska Native Claims Settlement Act, better known as ANCSA. As a result of the wide-sweeping provisions of ANCSA, around 44 million acres (one-tenth of the total acreage of the state) and $962.5 million (in recompense for claimed land that was occupied by other settlements) were allocated to Indigenous Alaskans via created entities known as Native corporations.[61] These corporations were divided across two levels: twelve regional corporations, “defined by the common heritage and shared interests of the Indigenous peoples within each geographic area,”[62] and thousands of smaller, local corporations designed to serve individual villages. As ANCSA was established as an inherently “for-profit” system, regional corporations claimed land in “areas that had significant cultural or subsistence value and areas that had potential economic value for natural resource development” in efforts to jointly prioritize the ways of life of Indigenous communities while attempting to pave the way for future monetary gains.[63] Following ANCSA and the later Alaska National Interest Lands Conservation Act (ANILCA), all previous Indigenous land claims were considered to be nullified.[64]
Following the passage of ANCSA, however, the federal status of Indigenous groups became a point of significant dispute. In the 1988 case Native Village of Stevens v. Alaska Management and Planning, the Alaska Supreme Court found that “[t]he history of the relationship between the United States Government and Alaska Natives, until the passage of the Alaska Indian Reorganization Act in 1936, indicates that Congress intended that most Alaska Native groups not be treated as sovereigns.”[65] Despite the Annette Island reserve, the Court reinforced that no Indigenous tribes were federally recognized in Alaska, citing its previous decision in Alaska Supreme Court case Atkinson v. Haldane that “‘Native villages and communities of Alaska were not organized on “tribal” lines, and the village rather than the ethnological tribe has been the central unit of organization.’”[66] In 1993 alone, two conflicting opinions on Alaska Native tribal status were released under two different presidencies: under George H.W. Bush, Department of the Interior Solicitor Thomas Sansonetti released an opinion that found “Congress, with passage of the 1971 Alaska Native Claims Settlement Act (ANCSA) decisively eliminated village jurisdiction over village and Native corporation lands and non-village members.”[67] Several months later, however, Bill Clinton’s Department of the Interior contradicted this holding by publishing a list of “226 Alaskan tribal entities” which were found to “have the immunities and privileges available to other federally recognized Indian tribes in the contiguous 48 States.”[68] The designation of “tribal entit[y]” here also adds further ambiguity, considering the Department of the Interior qualified Alaska Native “entities” different from the other “318 tribes in the contiguous 48 states” federally recognized that year.[69] This list was later codified in the Department of the Interior’s Federally Recognized Indian Tribe List Act of 1994.[70]
As Alaska Native federal tribal status has shifted over time, so too has the role of tribal courts. In 1968, the U.S. Congress passed the Indian Civil Rights Act (ICRA), which obligated tribal courts to follow almost all provisions of the U.S. Constitution and Bill of Rights.[71] Though this Act was designed primarily to preserve the due process rights of Native defendants in tribal criminal cases, it also posed distinct issues: most notably eroding the notion of tribal courts as entities distinct from the U.S. judicial system and obligating tribal courts to hold themselves to higher standards they often didn’t have the funding to manage.[72] In Alaska at this time, legal issues in Indigenous communities were resolved through a variety of mechanisms, including by Alaska’s “state courts, village councils or Native panels, or[] not at all” if communities did not have enough resources.[73] The National American Indian Court Judges Association (NAICJA) was founded the following year with the primary purpose to “provide education to tribal judges so that they could conduct proceedings in compliance with ICRA” and to gain funding so tribal courts could function under ICRA’s regulations.[74] Alaskan Indigenous courts were given “regional representation” within NAICJA in 2000.[75]
The most pivotal policy shift in the role of Alaskan Indigenous courts post-statehood, however, has been the introduction of the Indian Child Welfare Act (ICWA) in 1978. Prior to the passage of ICWA, Congress found that “that an alarmingly high percentage of Indian families [we]re broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”[76] In order to combat this issue, the federal government mandated placement for Indigenous children in need of aid or in the foster care system to be in the following order of preference: “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”[77] The federal government also upheld the jurisdiction of tribal courts in these foster placements due to their unique proximity to the culture and even their familiarity with the people in their Indigenous communities, and ruled that “the [US] court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe.”[78] Given this specific preference towards Native jurisdiction, Alaskan Indigenous courts—which had previously fallen into disuse due both to decades of federal intervention and a lack of funding—quickly reorganized to hear child custody and parental rights cases pursuant to ICWA.[79] As of 2022, the Alaska Legal Services Corporation has compiled 229 existing tribal courts in the state—one for each federally recognized Alaskan Indigenous tribe.[80]
PL280 and Alaska Indigenous Court Autonomy
The unique impacts that Public Law 280 has had on Indigenous Alaskan communities can be seen in the 1990 case of Native Village of Venetie I.R.A. v. Alaska. In this case, the Ninth Circuit heard claims regarding the State of Alaska’s refusal to recognize two adoptions of Indigenous children under ICWA despite the adherence of tribal courts to their own proper procedure.
Plaintiff Margaret Solomon, an Indigenous Athabascan from Fort Yukon, adopted a child from Fairbanks, Alaska, and formalized her adoption with Fort Yukon’s tribal court. The subsequent year, the State of Alaska refused to provide her benefits under the Aid to Families with Dependent Children (AFDC) program as the State did not see the adoption as legitimate. Nancy Joseph, also an Athabascan from Fort Yukon, adopted a child from one of her relatives who lived in Venetie, Alaska. This adoption was finalized in Venetie’s tribal court, due to it being the place of birth of the child. When Joseph applied for a change of birth certificate to demonstrate her as the child’s mother from the Bureau of Vital Statistics, however, it refused to recognize the adoption or, for that matter, any “‘native or tribal council adoption orders.’”[81] When Joseph applied for AFDC benefits after being laid off from her job, the State again refused to provide any assistance as it refused to recognize the tribal adoption. Joseph and Solomon, joined by the Indian Reorganization Act (IRA) tribal councils of Venetie and Fort Yukon, together sued the State of Alaska for failing to provide “full faith and credit” to the tribal adoption decrees pursuant to ICWA.[82] This case was initially filed in the District Court of Alaska, who denied Plaintiffs’ summary judgment. Plaintiffs appealed.
The rapid development of this case from two mothers’ requests for state aid to a jurisdictional question of tribal courts’ authority is a clear example of how Indigenous law in Alaska is extremely fragile and dependent on over a century’s worth of case law predominantly designed to account for established tribes in the contiguous U.S. but not for the “tribal entities” that exist in Alaska. Following the intended purpose of ICWA—to give Indigenous groups a greater role in the management of their domestic legal affairs—it should have been Congress’ intention to allow the tribal councils of Venetie and Fort Yukon—villages then of just 132 and 586 people, respectively—to regulate the adoption of Indigenous children, often occurring within the same extended family. Indeed, section 1903(8) of ICWA defines “Indian tribe” as including any “other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village” for this express reason.[83] Despite this explicit definition that should immediately demonstrate the legitimacy of Venetie and Fort Yukon’s rulings, the Ninth Circuit’s holding in this case demonstrates that, even though the verbiage of ICWA may seem immutable, the complexities of Alaska Indigenous law can circumvent the jurisdiction of Indigenous courts.
Before reviewing the decisions of Alaska’s District Court in Venetie, the Ninth Circuit first had to determine whether the Court even had the authority to hear the case in the first place. To reach this conclusion, the Circuit first had to determine whether Venetie and Fort Yukon were “‘Indian tribe[s] or band[s]’” under 28 U.S.C. § 1362.[84] Pursuant to the Ninth Circuit’s earlier holding in Native Village of Noatak v. Hoffman, these villages can be considered Indian tribes as they have a governing body approved by the Department of the Interior and are listed as a native village under ANCSA.[85] The District Court also had jurisdiction over the individual plaintiffs Joseph and Solomon as, as the Court found in Snow v. Quinault Indian Nation, “‘the issue of tribal sovereign powers,’ even if raised by an individual rather than a tribe, was ‘a sufficient federal question… upon which to base [federal] jurisdiction.’”[86]
In this case, the Ninth Circuit made substantial findings that uphold the rights of Indigenous Alaskan groups that all but confirm the Plaintiffs’ positions, going so far as to reject the arguments of the State of Alaska at face value by stating “[i]t would… be ironic indeed if Congress… permitted only state courts, never believed by Congress to be the historical defenders of tribal interests, to determine the scope of tribal authority under [ICWA].”[87] The Ninth Circuit notes the text of ICWA § 1911(d) which requires the US, every state, and every Indigenous tribe to recognize a child custody ruling submitted by a tribal court and to provide it “full faith and credit.”[88] Here, though, the Ninth Circuit’s natural conclusion is impeded by the overstep of Public Law 280 and its jurisdictional implications. In non-PL280 states, typically “state courts may exercise jurisdiction concurrent with tribal courts” over Native American children who do not live on a Native reservation.[89] In PL280 states, however, tribes must petition the Secretary of the Interior in order to exercise concurrent jurisdiction.[90] Since Venetie and Fort Yukon had not applied for jurisdictional rights over child custody, the State of Alaska was not mandated to consider the decisions of their tribal councils legally binding and provide them full faith and credit. Though this diminished status exists across all states with PL280 status, its prominence is significantly greater in Alaska due to the state’s lack of Indigenous reservations, save for Annette Island. Since no tribes in Alaska have been retroceded civil jurisdiction under PL280, the State of Alaska, therefore, holds de facto jurisdictional superiority over cases that can also be heard by tribal
In Venetie, the Ninth Circuit additionally undermined the notion of sovereignty for Indigenous groups residing in Alaska despite Native American tribes in the contiguous U.S. maintaining their independence from the federal government. In the 1832 Supreme Court case United States v. Wheeler, it was determined that “‘[t]he powers of Indian tribes are, in general, inherent powers of a limited sovereignty which has never been extinguished… Like all sovereign bodies, they then had the inherent power to prescribe laws for their members and to punish infractions of those laws.’”[91] Alaskan Indigenous groups, as with every other Native group in the United States precolonization, should clearly fall into this category. The Ninth Circuit then turns to its holding in United States v. State of Washington to argue that tribal sovereignty additionally hinges on the historical lineage of a tribe from its precontact state to the modern day—specifically, “‘if some defining characteristic of the original tribe persists in an evolving tribal community.’”[92] In Alaska, however, the historical legal status of Alaska Native groups again prevents this case from taking effect. Though Venetie and Fort Yukon are towns of under one thousand people, the vast majority of whom are Alaska Native, the Ninth Circuit was forced to turn to the 1867 declaration of Oregon Judge Matthew Deady, who only “occasionally [sat] on the circuit court with jurisdiction extending to Alaska” and who unilaterally declared Alaska was not “‘Indian country.’”[93] Over the years, this colonial era ruling dating back to the year of Alaska’s purchase from Russia became codified into U.S. law, with Alaska’s federal District Court eventually holding that Native Alaskans were not sovereign, and instead that they are instead “‘regarded as dependent subjects.’”[94] Despite believing that Alaska somewhat “assimilated” to the rest of U.S. Indigenous law following this ruling, the Ninth Circuit still held that Venetie and Fort Yukon were obligated to demonstrate their historical succession to precontact Alaska Native groups in order to be merely “afforded the same rights and responsibilities as… sovereign bands of Native Americans in the continental United States.”[95]
Since the Ninth Circuit did not find that Venetie and Fort Yukon had demonstrated this succession or formed “bodies politic to govern domestic relations, to punish wrongdoers, and otherwise to provide for the general welfare,” the case was ultimately remanded to the Alaska District Court to make findings on the same.[96]
With this decision, many incongruous and outright problematic precedents were established in Alaskan Indigenous law. In the Ninth Circuit’s ultimate conclusion, the Court relies on a circular logic that seeks only to undermine the legal standing of Alaska tribal courts: it is blatantly obvious that both Venetie and Fort Yukon had developed their own bodies politic in the forms of their own respective tribal councils, but the U.S. government cannot respect these tribal councils without relying upon Deady’s centuries-old holding that Alaskan Indigenous groups are conquered peoples due to their purported assimilation during American colonization—not separate and sovereign entities. This issue, of course, is the reason why Plaintiffs filed suit in the first place, as their tribal adoptions were not recognized by the State of Alaska due to the niche provisions of jurisdictional law under Public Law 280. Uniquely because of its differing colonization from the rest of the United States, Alaskan Indigenous groups are now forced under a centuries-dated precedent to justify their own historical continuity from pre-contact—a fact that should yet again be self-apparent due to the system of tribal governance the villages have installed for their sub-thousand populations—in order to merely execute their jurisdictional authority over child custody as explicitly given to them under the 1978 Indian Child Welfare Act.
In 1999, the Alaska Supreme Court heard the case of John v. Baker, which was additionally informative as to the differences in jurisdiction between Alaska tribal and state courts. In this case, Appellee John Baker of the village of Northway filed a petition in the tribal court of Northway for sole custody of his children. Appellant Anita John, the mother of the children from the village of Mentasta, consented to this jurisdiction. After Northway awarded the parties shared custody, Baker filed a child custody case in Alaska’s Superior Court, where he received primary physical custody. Though John moved to dismiss the case due to its previous litigation in Northway’s tribal court, the Superior Court denied this motion, stating that it did not believe ICWA to apply to custody disputes between parents and that the State was better equipped to handle disputes between parties of different tribes. This refusal to dismiss encouraged John’s appeal to Alaska’s Supreme Court on a decision of whether Alaska tribal courts have “the inherent sovereignty to adjudicate custody disputes between its members.”[97]
In determining whether the tribal court of Northway has authority in this case, the Alaska Supreme Court was forced to revisit its previous holdings in Native Village of Nenana v. State, Department of Health and Social Services[98] and In re F.P.[99], where it held that Alaska Indigenous courts do not have jurisdiction over some types of child custody disputes under ICWA.[100] Notably in this case, “[a]ll the amici, including the United States and the State of Alaska, join[ed] Ms. John in urging [the Alaska Supreme Court] to reconsider these decisions and recognize tribal court jurisdiction.”[101] Ultimately, the Court declined to overrule either decision by deciding they both were inapplicable to the case at hand, as the domestic relations dispute in this case was determined to be outside the scope of ICWA. The Alaska Supreme Court upheld the belief that pursuant to the Department of the Interior’s 1993 publication of the list of Alaska Native villages that hold tribal status, Alaska Native villages have a sovereign status similar to other Indigenous groups in the U.S. and that this authority was not divested by the resolution of land claims brought by ANCSA or the passage of ICWA seven years later.[102] In particular, the Alaska Supreme Court highlights ICWA’s recognition of the importance of Alaskan Indigenous courts (despite ICWA’s lack of applicability to this case), stating “ICWA’s very structure presumes both that the tribes covered by the Act are capable of adjudicating child custody matters in their own courts and that tribal justice systems are appropriate forums for resolution of child custody disputes.”[103]
The Court in John is then compelled to consider the notion of Indian country in Alaska, which the appellant and amici argue gives Indigenous groups jurisdiction over their land and to nontribal members on Indigenous land.[104] Citing Wheeler, the Alaska Supreme Court held that, despite tribes existing under a “dependent relationship with the federal government,” they maintain jurisdiction over their domestic affairs.[105] The United States Supreme Court reached a different conclusion, however, in the case of Oklahoma Tax Commission v. Chickasaw Nation, which insteadstates that, in the absence of Indian country, “generally applicable state laws are usually enforceable against Natives.”[106] The Court emphasized, though, that this ruling wouldn’t necessarily hold if a domestic relations claim had been brought before the Court—thus providing no instruction in John v. Baker. To fill this gap, the Alaska Supreme Court ruled that tribes should retain the ability to adjudicate the domestic issues of their members when petitioned, even when they are not part of Indian country or have its “sovereign power.”[107]
Despite granting this privilege to tribal courts, the Alaska Supreme Court also noted that Northway does not seem to belong to Indian country under 18 U.S.C. § 1151.[108] Pursuant to U.S. Supreme Court case Alaska v. Native Village of Venetie Tribal Government (distinct from case Venetie v. Alaska), the Court determined the provisions of ANCSA caused all land under the jurisdiction of established Native corporations not to be able to meet the “dependent Indian communities” standard under 18 U.S.C § 1151(2).[109] Given the lack of exclusive jurisdiction provided by Indian country, the State of Alaska technically has concurrent jurisdiction over domestic civil cases—as well as “all disputes arising within the State.”[110] Since Alaska is the only state that has ANCSA provisions that preclude tribes from receiving Indian country status, it is thus the only state where intratribal domestic issues can be concurrently adjudicated by tribal courts and state courts. Though the Alaska Supreme Court attempts to minimize this issue, providing an example of Montana’s legislation that gives concurrent jurisdiction to tribal and state courts when at least one parent doesn’t reside within Indian country, it is impossible to reconcile this legal conclusion with the Court’s finding that “[t]ribal jurisdiction over child custody cases involving member children will further the goal under both federal and state law of best serving the needs of Native American children.”[111]
The Alaska Supreme Court relies upon flawed logic to justify its findings in this case, which uniquely established Alaska as the only state wherein concurrent state and tribal jurisdiction over Indigenous domestic disputes exists both on established tribal land and outside of it. Specifically, the Court frames its decision as a method to provide the greatest access to dispute resolution for all, celebrating that “urban Alaska Natives will [not] be required to adjudicate their cases in remote villages”[112]—a problem that in no way appears topical: as the Court itself noted, when one or both parents reside outside of tribal land (as in Montana’s existing jurisdiction), state jurisdiction applies to domestic dispute cases. Separately, the Court notes that this decision will allow “Alaska Natives who for any reason do not wish to have their disputes adjudicated in a tribal court [to] retain complete and total access to the state judicial system.”[113] This statement goes directly against the Court’s earlier findings in this same case, though, that tribal jurisdiction of cases involving children is the best course of action whenever possible. Though this statement sounds seemingly innocuous, its implications are disastrous: by introducing the illusion of choice, the Alaska Supreme Court politicizes domestic disputes, allowing parents to choose the venue they believe will be preferable to them against its findings that Indigenous tribunals are the best methods to resolve tribal family matters. It is crucial to realize that the scope of the legal systems of Indigenous courts and Alaska state courts are different here: though tribal courts are held to the standards of the 1968 Indian Civil Rights Act, Alaska Courts are subject to the whole U.S. Constitution, Alaska legislation, and almost a century of case law. The main understanding here, as the Court points out, is the sheer proximity of Indigenous tribunals to members of their communities, especially common within communities of under a thousand members, is as equal a judicial asset as Alaska’s adjudicative history—one is personal and better designed to serve the community’s integrity, and the other is more impersonal and the product of a system designed to strip Indigenous Alaskans from their self-governance.
These discrepancies are to say nothing of the broader issue at hand: in John v. Baker, which court could claim jurisdiction over the other? Under comity—the notion that courts under different jurisdictions uphold each other’s decisions[114]—the Alaska Supreme Court reversed and remanded the case to the Superior Court to determine whether the Northway tribal court’s decision should be recognized. Though this decision did take a step forward in allowing Indigenous jurisdiction, its precedent is still problematic, leaving the Alaska state courts in the position to determine whether or not to recognize the authority of Alaska Native courts. The notion of concurrent jurisdiction also continues to pose problems: under the Court’s ruling, it appears that the venue that a party files first in, whether state or tribal, can adjudicate the rest of the case. Though ICWA provides a provision for Indigenous tribes to petition for jurisdiction and for full faith and credit in child adoption cases[115], the same does not exist for other domestic disputes—ultimately leaving Alaska’s state courts in control and diminishing the ability for tribal courts to complete their own endowed functions.
Conclusion: Amending PL280 by Retrocession
Across the United States, 574 independent tribes are recognized by the federal government, whose judicial decisions are recognized with full faith and credit so long as they follow the due process guidelines established by the 1968 Indian Civil Rights Act. Two hundred twenty-nine of these tribes exist in Alaska. Though in the vast majority of states, tribal courts are permitted to hold criminal and civil jurisdiction over their members in Indian country, almost 40% of America’s tribes are not allowed this same access to justice due to the co-occurrence of Public Law 280 and the lack of Indian country caused as a result of ANCSA. As a result, tribes within Alaska are significantly limited in their purview, restricted only to misdemeanor criminal charges and domestic disputes that can often be superseded by action taken in Alaska state courts, which have concurrent jurisdiction. Despite numerous, repeated findings by U.S. federal entities that Indigenous courts allow for more appropriate resolutions to domestic issues, given the proximity of tribal courts to tribal members, no meaningful retrocession has been granted to Alaska’s tribal entities, allowing them to adjudicate their own internal processes without the intervention of Alaska’s complex legal landscape as brought by over three hundred years of colonialism. Given the existing hypocrisy of Indigenous law in Alaska and the numerous calls in recent years to overturn Public Law 280, it is clear that statewide steps must be taken to resolve existing legal issues wrought by PL280 while taking account of the practicality and limited resources of Alaska’s judicial system.
To provide any meaningful conclusion to Alaska’s civil law, domestic issues must be retroceded to tribal courts instead of state courts to be adjudicated. The adoption of ANCSA—while beneficial in promoting Indigenous self-governance—was destructive in its elimination of the notion that any Indian country existed in a state that possesses close to forty percent of all federally recognized tribes. Modifying this Act in any capacity would prove difficult, as its breadth and depth is far too entrenched in Alaska law and tribal organization fifty years after its adoption. Therefore, steps must be taken to account for its subsequent reduction in Indian country. By retroceding domestic disputes, Alaska can resolve its current state/tribal jurisdictional impasse and reinforce its belief that personal, independent communities—not impersonal federal agencies—are best equipped to resolve familial issues. By reinforcing this standard, the state of Alaska’s legal analysis would begin to approximate that of Congress when it enacted ICWA to place Indigenous children with people of their same community—and to allow Indigenous communities to be the arbiters of how best to ensure the security of their people. In addition, retrocession in these cases would prevent the State of Alaska from denying full faith and credit to adoption and child custody proceedings, as occurring in Native Village of Venetie I.R.A. v. Alaska, revoking the current standard that Indigenous groups in Alaska must apply for concurrent jurisdiction for their decisions to be considered equally valid to imposed state legal processes and promoting due process in cases that are forced to switch to Alaska state courts after beginning and failing to be recognized in tribal courts. In retrocession, any decree from a tribal court on familial issues would be required to be recognized by state agencies, removing the architecture of colonialism that has continually treated Indigenous entities as submissive to federal ones.
Ultimately, though, the greatest benefit of retrocession is the greatly improved access and efficiency such a measure would bring to rural areas across Alaska. Though tribal courts currently are equipped to handle domestic disputes, as they have done since ICWA, the issues preventing tribal decisions from being viewed as equal to state ones render many facets of such a system redundant when federal oversight stands in the way between Indigenous Alaskans and recognition of their familial composition. In Alaska, however, state courts are few and far between, often located in larger, more accessible cities and not in smaller villages (usually off the road system entirely) where small populations would make operations not cost-effective. As a result, geographic distance is currently a significant barrier to accessing the legal system across Alaska, but one that can be easily remedied by empowering community-focused entities such as tribal courts. If such entities were prioritized, state courts in Alaska would benefit from reduced civil caseloads and could reallocate their resources toward addressing Alaska’s current criminal backlog.[116]
[1] Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1, 2 (1831).
[2] See Indian Civil Rights Act of 1968, 28 U.S.C. § 1302.
[3] See U.S. CONST. art. IV, § 1.
[4] This code requires tribes: (1) be identified as a distinctly Native American body, (2) be a formation of a distinct Native American community, (3) have maintained political influence/authority over its members since 1900, (4) have a governing document, (5) have members who share similar Native American lineage. (6) be unique to other tribes, and (7) not be terminated by the U.S. Congress in order to be recognized. See Procedures for Federal Acknowledgement of Indian Tribes, 25 C.F.R. § 83.11 (2015).
[5] See Federally Recognized Indian Tribe List Act of 1994, Pub. L. 103–454, title I, §103(3), 108 Stat. 4791 (1994).
[6] See Alaska Native Peoples, Alaska Federation of Natives, https://nativefederation.org/alaska-native-peoples/ (“According to the 2014 Census update, 18% of Alaska’s general population is American Indian or Alaska Native – the highest rate for this racial group of any state”). See also Federally Recognized American Indian Tribes and Alaska Native Entities, USA.GOV, https://www.usa.gov/indian-tribes-alaska-native (“The U.S. government recognizes 574 American Indian tribes and Alaska Native entities”). See also 2022 Alaska Tribal Court Directory, Alaska Legal Services Corporation, https://alaskatribes.org/wp-content/uploads/2022/01/ALSC-Tribal-Court- Directory-2022-Digital-Version.pdf, 1 (“[T]he 2022 version includes information on all 229 Tribes in Alaska”). 229/574 = 39.89%.
[7] See 18 U.S.C. § 1162.
[8] See Carole Goldberg, Research Priorities: Law Enforcement In Public Law 280 States 1 (1998), https://www.ojp.gov/pdffiles1/nij/grants/209926.pdf. See also Lisa Jaeger, Tribal Courts: A Historical Perspective for Bush Justice in Alaska 12 (2021 ed.).
[9] See Pub. L. No. 85-615, 72 Stat. 545 (1958) (prior to 1970 amendment).
[10] See Cal. Rules of Court § 10.60(b) (West 2018), quoted at (b)(1).
[11] Department of Justice, Office of Tribal Justice, Concurrent Tribal Authority Under Public Law 83-280 in Alaska (2023), https://www.justice.gov/d9/2023-11/inherent_tribal_authority_in_alaska_memo_ 10-24-2023_final_word_version.pdf.
[12] Alaska Native Justice Center, Opportunities for Tribes to Collaborate with The State of Alaska (2021), https://anjc.org/wp-content/uploads/2021/06/Three-Opportunities-for-Tribes-to-Collaborate-with-the-State- of-Alaska.pdf.
[13] “Protection order” is defined to mean any injunction, restraining order, protective order, support order, and/or custody or visitation order awarded by a court. See 18 U.S.C. § 2266(5).
[14] See 18 U.S.C. § 2265(a), internal citations omitted.
[15] U.S. Const. amend. V.
[16] See 18 U.S.C. § 2265(a).
[17] 918 F.2d 797 (9th Cir. 1990).
[18] 982 P.2d 738 (Alaska 1999).
[19] Bering Land Bridge National Preserve, National Park Service, Alaska Natives and Early People, https://www.nps.gov/bela/learn/historyculture/alaska-natives-and-early-people.htm.
[20] Stephen Conn, Punishment in Pre-Colonial Indigenous Societies of North America, in La peine, Quatrième partie. Mondes non européens [Punishment – Fourth Part. Non-European worlds], Recueils de la Société Jean Bodin pour l’histoire comparative des institutions [Transactions of the Jean Bodin Society for Comparative Institutional History], 99–100, http://hdl.handle.net/11122/9753.
[21] Id, 100.
[22] Id.
[23] Conn, supra note 20, at 103–104.
[24] Id.
[25] Jaeger, supra note 8, at 4. See also National Oceanic and Atmospheric Administration, Early Encounters on a Western Frontier: The Search for Svyatoy Nikolai (1807-1808), https://oceanexplorer.noaa.gov/explorations/23svyatoy-nikolai/features/russian-america/russian-america.html.
[26] Formally, see Treaty Concerning the Cession of the Russian Possessions in North America by His Majesty The Emperor of all The Russias to the United States of America, U.S.-Ru., Jun. 20, 1867, 15 Stat. 539.
[27] Treaty Concerning the Cession, supra note 26, art. III.
[28] Jaeger, supra note 8, at 5.
[29] National Archives, Dawes Act (1887), https://www.archives.gov/milestone-documents/dawes-act.
[30] 24 Stat. 388 (1887), § 5.
[31] Jaeger, supra note 8, at 5.
[32] Id. See also Indian Appropriations Act codified at 25 U.S.C. § 71. See original statute at 16 Stat. 566 (1871).
[33] First Organic Act, ch. 53, 23 Stat. 24 (1884), § 3 and 7. Quoted at § 7.
[34] Frederic Brown, The Sources of the Alaska and Oregon Codes, 91 (1973),
[35] Id, 90–91.
[36] Id, 91.
[37] First Organic Act, supra note 33, at § 8.
[38] See An Act to Repeal Timber-Culture Laws, 26 Stat. 1095 (1891), § 11.
[39] Id, at § 15.
[40] Jaeger, supra note 8, at 6.
[41] 25 U.S.C. § 280a.
[42] See United States v. Berrigan, 2 Alaska 442 (D. Alaska 1905).
[43] 25 U.S.C. 461.
[44] Bureau of Indian Affairs, U.S. Department of the Interior, Alaska IRA,
[45] Jaeger, supra note 8, at 10.
[46] 18 U.S.C. § 1151 et. seq.
[47] University of Alaska Fairbanks, General Principles of Federal Indian Law,
[48] Center for Indian Country Development, The Federal Reserve Bank of Minneapolis, What is Indian Country?, https://www.minneapolisfed.org/indiancountry/What-is-Indian-Country.
[49] Pub. L. No. 83-280, 67 Stat. 588 (1953).
[50] 72 Stat. 545, supra note 9.
[51] Goldberg, supra note 8, at 2.
[52] Jaeger, supra note 8, at 12. See also Native Governance Center, It’s Time to End Public Law 280, https://nativegov.org/news/its-time-to-end-public-law-280/ (2021).
[53] Id.
[54] Matthew Harvey, Fatal Encounters Between Native Americans and the Police 6 (2020), https://www.minneapolisfed.org/~/media/assets/articles/2020/fatal-encounters-between-native-americans-and-the-police/fatal-encounters-between-native-americans-and-the-police_march-2020.pdf?la=en.
[55] See Vanessa J. Jiménez and Soo C. Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47, no. 6 Am. U. L. Rev. 1627, 1634 (1998).
[56] Judicial Branch of California, Public Law 280 Jurisdiction Information, 2, https://courts.ca.gov/publication/public-law-280-jurisdiction-information.
[57] Carole Goldberg and Duane Champagne, Final Report: Law Enforcement and Criminal Justice Under Public Law 280, ix–x (2007), https://turtletalk.blog/wp-content/uploads/2008/06/pl280_study.pdf.
[58] Robert T. Anderson, Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280, 87 Wash. L. Rev. 915, 948, 946.
[59] Carole Goldberg, Unraveling Public Law 280: Better Late than Never, 43 no. 1 Human Rights 11 (2017).
[60] Carole Goldberg and Duane Champagne, Searching for an Exit: The Indian Civil Rights Act and Public Law 280, in The Indian Civil Rights Act at Forty 246, 265 (Kristen A. Carpenter et al. eds., 2012).
[61] ANCSA Regional Association, About the Alaska Native Claims Settlement Act, https://ancsaregional.com/about-ancsa/.
[62] Id.
[63] Id.
[64] Id. See also Jaeger, supra note 8, at 16.
[65] See 757 P.2d 32 (Alaska 1988).
[66] Id. See quoted in Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977) at note 12.
[67] Bureau of Indian Affairs, U.S. Department of the Interior, Interior Solicitor Issues Legal Opinion On Alaska Native Village Powers (1993),
[68] Bureau of Indian Affairs, U.S. Department of the Interior, Interior Publishes Revised List Of Alaska Native Tribes Eligible For Services From Bureau Of Indian Affairs (1993),
[69] Id.
[70] University of Alaska Fairbanks Tribal Governance, Federal Recognition of Alaska Tribes and Relations with the State of Alaska, https://www.uaf.edu/tribal/academics/112/unit-4/federalrecognitionofalaskatribesandrelationswiththestateofalaska.php.
[71] 25 U.S.C. §§ 1301–1304. Notably, some provisions were excluded, such as the right for a jury trial.
[72] Jaeger, supra note 8, at 14.
[73] Jaeger, supra note 8, at 15.
[74] Jerry Gardner and Nikki Borchardt-Campbell, Reflecting on our Past – Celebrating 50 years of NAICJA Accomplishments, 52 (2019), https://www.tribal-institute.org/download/Pubs/NAICJA%2050%20year%20history%20pdf.pdf.
[75] Jaeger, supra note 8, at 15.
[76] See Indian Child Welfare Act, 25 U.S.C. § 1901(4).
[77] Id, at 1915(a).
[78] Id, at 1911(b).
[79] Id. See also Jaeger, supra note 8, at 18–19.
[80] See 2022 Alaska Tribal Court Directory, supra note 6, at 1.
[81] See Venetie, supra note 17, at 800.
[82] Id.
[83] See Indian Child Welfare Act, supra note 73, at § 1903(8).
[84] This section defines “Indian tribes” under federal law and allows federal District Courts the ability to hear cases involving these tribes.
[85] See Venetie, supra note 17, at 801, citing Native Village of Noatak v. Hoffman, 896 F.2d 1157, 1160 (9th Cir. 1990).
[86] Id, citing Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir. 1983).
[87] Id, at 803.
[88] Id, at 804. See also ICWA, supra note 73, § 1911(d).
[89] Id.
[90] ICWA, supra note 73, § 1918(a).
[91] See Venetie, supra note 17, at 805, citing U.S. v. Wheeler, 435 U.S. 313, 322-23 (1978).
[92] Id, at 806, citing U.S. v. State of Washington, 641 F.2d 1372–3.
[93] Id, at 807, latter quote citing U.S. v. Seveloff, 27 F.Cas 1021–2.
[94] Id, citing In re Sah Quah, 31 F. 327, 329.
[95] Id, at 808.
[96] Id.
[97] See John v. Baker, supra note 18, at 743.
[98] 722 P.2d 219 (Alaska 1986).
[99] 843 P.2d 1214 (Alaska 1992).
[100] John, supra note 18, at 744.
[101] Id, at 745.
[102] Id, at 753.
[103] Id.
[104] Id, at 754.
[105] Id, at 755, citing U.S. v. Wheeler, supra note 88, at 98 S. Ct. 1079.
[106] Id, at 758, citing Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 465 (1995).
[107] Id, at 759.
[108] Id. See also 18 U.S.C. § 1151.
[109] Id, at 771.
[110] Id, at 759.
[111] Id, at 760.
[112] Id, at 761.
[113] Id.
[114] Id, at 762, citing Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir. 1997) (decision that tribal court judgments should be recognized by state and federal courts under the comity doctrine).
[115] See 25 U.S.C. § 1911(b) and (d).
[116] Claire Stremple, Alaska’s Courts are Mired in Cases, with Gradual Progress on Pandemic Backlog, Alaska Public Media, Feb. 12, 2024, https://alaskapublic.org/news/2024-02-12/alaskas-courts-are-mired-in-cases-with-gradual-progress-on-pandemic-backlog.