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Editors --- "Alaska v Native Village of Venetie Tribal Government et al - Case Summary" [1999] AUIndigLawRpr 8; (1999) 4(1) Australian Indigenous Law Reporter 119

Alaska v Native Village of Venetie Tribal Government et al

25 February 1998

(96-1577) [1996] USCA9 3560; 101 F 3d 1286

American Indian Law - 'Indian country' - revocation of reservation - meaning of 'dependent Indian communities' - whether Federal set-aside requirement met - whether Federal superintendence requirement met - 18 USC º 1151 - Alaska Native Claims Settlement Act 1971 (US) (43 USC º 1601 et seq).

Facts:

In 1943, the US Secretary of the Interior created a reservation for the Neets'aii Gwich'in Indians out of land surrounding the Alaskan villages of Venetie and Arctic Village (the Venetie reservation).

In 1971, Congress enacted the Alaska Native Claims Settlement Act (43 USC º 1601 et seq) (ANCSA), which revoked the Venetie reservation (and every other reservation set aside for native use in Alaska by legislative or executive action, bar one) and completely extinguished all aboriginal claims to Alaskan land: ºº 1603 and 1618(a). In return, Congress authorised the transfer of $962.5m in Federal funds and fee simple title to approximately 44 million acres of Alaskan land to state-chartered private business corporations to be formed by Alaskan natives: ºº 1605, 1607, 1613. No Federal restrictions applied to subsequent land transfers by the corporations.

In 1973, two such corporations established for the Neets'aii Gwich'in (one in Venetie and one in Arctic Village) elected to make use of an ANCSA provision (º 1618(b)) allowing them to take title to former reservation lands, in return for forgoing the Act's monetary payments and transfers of non-reservation land. The United States then conveyed fee simple title to the former Venetie reservation land to the two corporations as tenants in common. Subsequently, the corporations transferred title to the land to the Native Village of Venetie Tribal Government (the Tribe).

In 1986, the State of Alaska entered into a joint venture agreement with a private contractor to construct a public school in Venetie. In December 1986, the Tribe notified the contractor that it owed the Tribe approximately $161,000 in taxes for conducting business on its land. After both the contractor and State (who, under the joint venture agreement, was the party responsible for paying the tax) refused to pay, the Tribe attempted to collect in the Tribal Court.

The State then filed suit in the Federal District Court (District of Alaska) to enjoin the collection of the tax. In denying a motion by the Tribe to dismiss the State's complaint, the District Court held that the Tribe did not have the power to impose a tax upon non-members of the Tribe since the Tribe's ANCSA lands were not 'Indian country' within the meaning of 18 USC º 1151(b), which provides that 'Indian country' includes all 'dependent Indian communities within the borders of the United States'. The Court of Appeals for the Ninth Circuit disagreed and reversed the decision.

Held:

(i) The Tribe's ANCSA land is not 'Indian country' and the judgment of the Court of Appeals is reversed.

(ii) The term 'dependent Indian communities' refers to a limited category of Indian lands that are neither reservations nor allotments (the two other categories of 'Indian country' set out in 18 USC º1151: º1151(a) and (c)), and that satisfy two requirements: one, that they have been set aside by the Federal Government for the use of Indians as Indian land and two, that they are under Federal superintendence. These requirements had been held necessary for a finding of 'Indian country' generally before º1151 was enacted (see US v Sandoval, [1913] USSC 247; 231 US 28 (1913); US v Pelican, [1914] USSC 77; 232 US 442 (1914); US v McGowan, [1938] USSC 14; 302 US 535 (1938)) and were codified by Congress in enacting º1151.

(iii) The Tribe's ANCSA lands do not satisfy either of these requirements:

(a) The Federal set-aside requirement is not met, since ANCSA revoked the existing Venetie reservation and all existing reservations in Alaska 'set aside by legislation or by Executive or Secretarial Order for native use', except for one: 43 USC º 1618(a). In no clearer fashion could Congress have departed from its traditional practice of setting aside Indian lands: cf Hagen v Utah, 510 US 399, 401 (1994). The difficulty with the Tribe's contention that the lands were set apart for the use of the Neets'aii Gwich'in, 'as such', because they acquired the lands pursuant to º 1618(b) is that ANCSA transferred reservation lands to private, state-chartered Native corporations, without restraints on alienation or significant use restrictions, and with the goal of avoiding 'any permanent racially defined institutions, rights, privileges, or obligations': º 1601(b) and see ºº 1607, 1613. Congress thus contemplated that non-natives could own the lands and that the Tribe could use it for non-Indian purposes.

(b) ANCSA also ended Federal superintendence over the lands by revoking the Venetie reservation and stating that ANCSA's settlement provisions were intended to avoid a 'lengthy wardship or trusteeship': º 1601(a). The post-ANCSA Federal protection (limited to an exemption from adverse possession claims, real property taxes, and certain judgments as long as it has not been sold, leased, or developed: º 1636(d)) does not approach the active control and effective guardianship over the lands that existed in prior cases: see McGowan at 537-9; Pelican at 447; Sandoval at 37, n 1. That Congress transferred the lands to state chartered and regulated corporations is hardly a choice that comports with a desire to retain Federal superintendence. The mere provision of 'desperately needed' health, social, welfare, and economic programs are forms of general Federal aid and are not indicia of active Federal control and superintendence (as the Court's 'Indian country' precedents suggest). Moreover, ANCSA's primary purposes are to effect native self-determination and to end paternalism in Federal-Indian relations, which severely undercuts any assertion of Federal superintendence.