Native Village of Stevens v. Alaska Management & Planning

NATIVE VILLAGE OF

STEVENS, Appellant, & MANAGEMENT

ALASKA

PLANNING, Appellee.

No. S-1345. of Alaska.

Supreme Court

May 24, 1988. Aug. Denied

Rehearing Walleri, Tanana Chiefs Con-

Michael J. ference, Inc., Fairbanks, appellant. for Fairbanks, Merdes, appel- Edward A. lee. RABINOWITZ, C.J.,

Before MATTHEWS, BURKE, COMPTON and MOORE, JJ.

OPINION MATTHEWS, Justice. dispute out of a contract

This case arises (Ste- between the Native of Stevens Management Village) & vens and Alaska (AMP). Planning juryA returned a verdict AMP, finding had that Stevens administration, ing, budget- appeal, On Stevens construction contract. breached the grounds it ing, progress on which Village three and construction evaluation. raises aside. should be set May, parties verdict In amended the believes the First, this suit is agreed provide that barred agreement. it claims AMP to con- sovereign immunity. Sec- administration, the doctrine expediting, engi- struction ond, the contract violated it contends that neering, construction services on the and regulations and government procurement project place of electrification Marks En- Finally, it therefore unenforceable. was contract, gineering. original Under the personal contract was a contends that the compensated per- AMP to was seven containing no term service contract definite plus percent cent of costs five construction and was therefore terminable of duration management of total costs for financial party. of either We conclude at the will Under services. the amendment to the Village that does not have sover- Stevens agreement, relating solely the electrifi- to that eign immunity. We further conclude project, per cation AMP was $35 to receive ground Village is the second Stevens raises expenses. plus hour none- meritorious. AMP is 2, 1983, By dated letter December Ste- quantum meruit re- theless entitled to Village vens terminated contract with covery. we un- Because find the contract Village AMP. Stevens claims that HUD not reach third enforceable we do problems and the state had found with the ground Village. We raised Stevens project’s electrification administration and therefore and remand retrial reverse for a Village’s relationship to AMP. Stevens damages. on the issue of Village asserts AMP failed to also provide report requested by status I. OF THE STATEMENT CASE failing that it for officials and fired AMP A. Statement Facts AMP, perform obligations. its contractual is Village Stevens an Alaska Native vil- hand, on the other claims that it was fired lage organized Reorgani- Village because Stevens learned could seq. (IRA), 461 et zation U.S.C. §§ get the services free TCC or the same the Yukon in Inte- located on River federal Public Health Service. Village rior Stevens re- Alaska. Department Housing ceived a federal Background B. Procedural (HUD) Development grant and for Urban $369,000 bring electricity to to be used to brought against AMP suit Stevens Vil- village. Tanana Chiefs Confer- lage Stevens for breach contract. Vil- ence, (TCC) Inc.1 assisted Stevens ground lage moved dismiss on the hiring in obtaining grant and an the HUD barred doctrine of suit was (Marks engineering management firm and sovereign immunity. The court denied trial Engineering) manage the electrification motion, concluding that the project. on the immunity defense did not exist facts event, that, any

AMP in of this and joint specializing is a case venture village had community Alaskan bush been waived. court devel- opment granted projects. oper- partial summary AMP AMP’s motion for owned Slaby finding ated judgment, David Nims. On that a valid contract ex- James parties. March isted It also denied Stevens entered between Village’s partial into a pursuant contract with AMP to Stevens cross-motion perform argu- “planning summary judgment, rejecting which AMP would services, management agreement and be ment that because the one established Engineer personal Architect and services which contained no record for Village.” duration, community period definite it was either Stevens AMP provide grant missing also to services as writ- essential that no con- such term so Conference, porations respect 1. The Tanana Chiefs Inc. non- contracts is a profit corporation grants. village cor- formed assist Martinez, Clara Pueblo v. Santa See it was terminable at formed or tract was L supra, 2d party. Ed either U.S.] [436 will Nonetheless, 98 S Ct [at 1676]. court Village’s petition to this Stevens authorization, of federal trib- absence denied. rulings was of the above for review aspects like al all of tribal to dismiss Village later moved privileged sovereignty, from diminu- con- ground on the claim AMP’s States. in it was because unenforceable tract was Engineer v. Three Tribes Wold Affiliated procurement federal and state violation ing, 476 U.S. 877, 2305, 890-91, 106 S.Ct. court denied this regulations. The trial 2313, 881, (1986). 90 L.Ed.2d 894 well. motion as We conclude that Stevens trial, jury returned verdict After sovereign immunity does not have because $38,891.00. AMP, awarding it, Alaska, groups like in is not most native II. DISCUSSION in self-governing any meaningful or sense sovereign. supported This conclusion is by the Doc- This Suit is not Barred

A. Atkinson v. court, the decisions of this Sovereign Immunity trine of Haldane, 569 P.2d 151 (Alaska 1977) Summary Community, Indian Annette Metlakatla Indian tribes outside Alaska American Egan, Island Reservation v. 362 P.2d 901 recognized long been have (Alaska 1961). Further, history governmental entities immune from suit. relationship govern between the federal See, Three Tribes v. Wold e.g., Affiliated up passage ment and Alaska Natives Engineering, 476 877, U.S. 106 Act, Reorganization 2305, 2313-14, 881, 894 S.Ct. (1936) 49 Stat. 1250 indicates Martinez, Pueblo v. Santa Clara (1986); groups most intended that Alaska Native 49, 1670, 1677, 58, 436 98 S.Ct. 56 U.S. sovereigns. Finally, not be treated as nei 106, United States v. L.Ed.2d 115 Reorganization ther Alaska Indian Co., Fidelity & United States Guar. 309 subsequent Congressional nor acts have 656, 506, 512-13, 84 60 S.Ct. L.Ed. U.S. signaled change non-sovereign to (1940). 898-99 sovereign status. Supreme United States Court Court doctrine: Arizona State Pueblo that which the Tribe’s 309 US eign” ^[656] because possessed by governance. corollary 2d The common law United States reemphasized the States, enjoy. status of 98 S to Indian Martinez, Ct Cf. Fidelity Guaranty the Tribe is a See, e.g., Tax Federal 84 Ed L particular “quasi-sover- is also sovereignty Comm’n, supra sovereign immunity importance United States v. McClananhan v. & Government, US congruent Santa Clara 60 S Ct tribes, Of necessary and self- 56 Ed course, L [411 Co., P.2d 151 immunity in which is not all the lands within those guaranteed by the United States. tinct torial thority stated that (1832), in which We addressed first 2. Alaska P.2d at U.S. tribal political boundaries, (6 Pet.) 515, 557, (Alaska 1977). exclusive, the Indian nations Atkinson communities, only acknowledged, After a review of Chief within which their question Worcester v. Court Cases Justice having We Haldane, L.Ed. having Indians was boundaries, noted Marshall Georgia, right many terri- that: but dis- au- authorities, judicial 36 L Ed 2d 93 S we rec- Ct concluded 164] aspect ognition sovereign immunity And this tribal [1263]. sovereignty, others, Congress, like all turned on whether execu- plenary government, control definition. tive had branch particular group question recognized the sembled the status of the tribes in other a tribe. 569 P.2d at 161-63. states than the status of other Natives Alaska. In we held that the Metlakat- Atkinson

lans, emphasis located on the Annette Island Reser- 569 P.2d at 156. Our on the vation, sovereign immuni- possessed differences between the Metlakatlans and ty. interactions of the other Alaska groups suggests We noted “[t]he government and the the United States that other Alaska Native would not as a whole peoples sovereign immunity. Alaska Native have be afforded those been much different from between Community, Metlakatla Indian An and the tribes the other Egan, nette Island Reserve v. 362 P.2d 901 states.” at 154. We observed that a Id. (Alaska 1961), part, rev’d in general system reservation was never de- 7 L.Ed.2d 562 we had veloped and the federal occasion to review detail the historical attempted enter ment never into treaties relationship govern between the federal with Alaska Natives. Id. we ment and Alaska Natives. The issue in stated that the Metlakatlans were “an ex- regulations Metlakatla was whether issued id., ception exception,” to the in that Con- by Secretary the authorizing of the Interior gress up had a reservation set for them.2 traps operated by fish the Indian communi “The Metlakatlans’ reservation status sets Metlakatla, Kake, Angoon ties of were Natives, apart them from other Alaska prohibited valid. Alaska state law fish making them much more like the tribes of traps. We held that regula the Secretarial (footnote the other states.” Id. at 154-55 tions were invalid as to all three communit omitted). Further, noted we that the Met- ies.3 strong lakatlans have “a central tribal or- opinion following points Our made the ganization unlike most Alaska Native germane present which are to the case. groups.” Id. at 155. We noted that in “The United States has never entered into general, villages and commu- “[t]he any treaty type agreement or similar with organized nities of Alaska were not on any group of Indians in Alaska.” Id. at lines, village ‘tribal’ and the rather than the appellant 917. “None of the Indians of ethnological tribe has been central unit exempt communities have ever been from organization.” of 155 n. 12. Id. at by Territory taxation State Alas- We concluded our historical discussion in by ka.” Id. at 919. “Crimes committed Atkinson as follows: always pun- Indians Alaska have been Thus, foregoing, based on the we con- ished the territorial and state courts.” clude that the status reservation of the Id. at 920. “There is not now and never Community Metlakatla Indian sets them has recognized been an area of Alaska apart from other Alaska Natives country possible excep- Indian with one that the status of the Metlakatla Indian tion.” Id.4 “There are not now and never Community always closely has more re- have been tribes of Indians in Alaska as history 2. The Congress setting apart Indian Commu- Metlakatla on an 1891 act of a reser nity unique. Metlakatlans, Community including was established vation for the waters approximately when surrounding mi- 800 Tsimshian Indians the land reservation. The 1891 grated Territory empowered Secretary govern from British Columbia statute Alaska 1887. For a detailed discussion of use of the Reservation the Metlakatlans "un Haldane, history regulations might see v. 569 P.2d der such rules and Atkinson as he 151, (Alaska 1977). 48, prescribe.” 153-54 time to time 369 U.S. at 82 S.Ct. 555, authority at 7 L.Ed.2d at 566. This Thus, appeal, unique 3. On Secretary’s reg States to Metlakatla. Metlakatla, community reversed our decision as to the ulations were authorized as to but Metlakatla, Community, An Metlakatla Indian not as to the native of Kake and An- Egan, goon. nette Island Reserves v. S.Ct. 7 L.Ed.2d 562 and affirmed our exception decision as to the communities of Kake and 4.The noted the Metlakatla court Angoon, Organized Village Egan, Moquawkie recognized Kake v. was the reserve in Peti McCord, (D.Alaska, F.Supp. U.S. 7 L.Ed.2d 573 power 1957). grounded Secretarial in Metlakatla was The United States District Court for the Thus, Angoon. nities of Kake law.” Indian is used term in Metlakatla tribe, indepen- no tribes

Id. statement “No 917-18. at recognized has been power recognized in Alaska was inaccu- dent nation have been Id. at 920.5 in Alaska.” re- the Metlakatlans have rate because Congressional recognition. In all ceived noted, Metlakatla was reversed As however, legal respects, conclu- community of as to Supreme Court in Metlakatla are accurate.6 sions commu- affirmed Metlakatla 50-53, S.Ct. Egan, Alaska, unpublished deci oral in an Reserve District sion, Puckett, (1962), expressed Tyonek 82-369 567-68 Decision, (Transcript December of Oral same views: Civil some Village Tyonek 1986), that the has concluded Alaska, The Indians of southeastern who Moquawkie Reserve on the former located sovereign very substantially adopted history have adopted by and been Tyonek’s "based on civilization, man’s the white govern the federal in which and the manner position in the hostile and isolated never Tyonek." 20. The Id. at ment has dealt early many tribes in other States. As as 1886 among unique Alaska vil Tyonek history holding judge, Alaska Indians sub McCord, in Petition lages, as Amendment, ject denied that to the Thirteenth occupied Tyonek F.Supp. because principle of Indian national time it Order Reservation Executive adopted (US) Georgia 6 Pet enunciated in Worcester v by-laws a constitution 483, applied Re Sah 8 L ed to them. Reorganization 49 Stat. 1250 Quah, (D [1886]). 31 F. 327 There (Tran Tyonek, (1936). Village 82-369 Civil Alaska, although were no Indian wars in on at script) at 5. occasion, Gruening, least one see The State of (1954), pp. there were fears of Alaska attempt uprising. an There was never an in up histori- opinion its summed 5. The Metlakatla Alaska to isolate Indians Very reservations. as follows: cal review created, purpose ever and the few were in its policy United States those, States, of the broad many The in in contrast to other relations, as outlined of federal-Indian protec control by not confine for the was to the Indiems brief, first to in States the United safeguard to the tion of the white settlers but Indians, to the of the for the use reserve areas against exploitation. Alaskan Indians Indians state law. and of complete citizens, of whites exclusion voting occu are now py prominent public some whom amal- provided for modified policy later This gamation in the office state by population Booth, the white with government. See United States v. application permissive process and (D 1958); Supp. allotment F 269 Alaska United States always subject degree, to a limited of state law Libby, Libby, F.Supp. McNeil & protection of the Metlakatlans, for the (D 1952). controls to federal Alaska the State tells history of federal- us, taxes, is not the But this always paid Indians. have in contrast to application of The in Alaska. Indian relations practice prescribed for oth described necessary. been policy has never (Blue such er reservations in The Kansas Indians peacefully and Amalgamation 737, 18 has occurred (US) County) Jacket v. Johnson 5 Wall man’s civi- naturally. Adaptation the white to always L and it been assumed Ed quick willing and in has been lization subject reservation is to state laws. that the by many tribes in made Booth, (161 to that direct contrast supra Supp, F United States We do parts United States. 270). of the Congress in 49 Stat 48 USC imply States has not 358a, that the United to Secretary mean by authorizing the process, it has. In the in the assisted Interior to create Indian reservations of land education, and economi- of health fields cally reserved for Indian uses under 48 USC § instances, many has rendered and it in seems to have believed that Metlakatla was no as- and valuable reservation, humane to render continues ordinary since Metlakatla alone do What we natives of Alaska. Finally, sistance say is covered in in United States which created of the facts (F) that most is supra, v. Booth the District Court for Alas by appellants authority relied on law ka held that a crime committed on the Metla- Reserve, case. from this jurisdic are absent before the extension of katla Metlakatla, Alaska, at 920-21. 362 P.2d country [citation tion over Indian to punishable under territorial omitted] laws, since for the reasons here outlined the country" within the Reserve was not 'Indian United States in 6. The Court of the meaning of 18 USC 1151-1153. §§ Community, Annette Islands Metlakatla Indian relationship history of the be- Act should in Intercourse be force Alaska, provide.... so States can tween Government Natives, pas- Alaska until 1873, Congress responded to the Seve- Reorgani- sage of the Alaska Indian decision in a limited ex- fashion. It loff Act in zation indicates only sections of tended the Intercourse intended that most dealing Act9 with alcohol control. This not be treated sov- implies that did not intend the ereigns. comprehensive protection which the Act was meant afford to apply to Indians to relationships exam- Federal-Native Alaska. by detail appointed ined in task force subject study holding of Alas- the Governor That was of Waters v. (D.Ore.1876), report Campbell, The task force of im- 1 Alaska Fed. 91 ka. issued a where the of the Indian pressive scholarship.7 section Intercourse The conclusion requiring doing white traders business Report, period for the from the Alaska country obtain a federal license purchase passage until Indi- of the Alaska apply was found not Alaska. Act,8 Similar Reorganization is as follows: ly, States, the court stated Kie v. United language applica- of federal statutes (D.Ore.1886) 1 Alaska re Fed. Alaska, interpretation by their ble to spect to the legis 1873 amendment: “[t]his Courts their administration and en- lation, my judgment, at least a rea army, navy, forcement sonable, necessary, if implication, Secretary Interior, territo- and the equivalent ato declaration that legislature, contemporaneous rial and the country,’....” not to be considered ‘Indian knowledgeable of the most views Quah, And in 31 F. In re Sah living in then Alaska indicate that be- (D.Alaska 1886), regarding the court stated tween and 1936 intended presumption “The amendment: is clear Alaska Natives to federal out, mentioning, singling and ex applicable generally and territorial laws tending only, two sections the intention Alaska residents. all was to or exclude from withhold the terri (footnote Report, supra, note at 100 tory all the other sections of the act.” omitted). 1884, Congress Second. In enacted the report set out in which The events Act, Organic establishing Alaska for the support Congress the conclusion that in- government first time a civil for the Dis- tended that Alaska Native be trict of Alaska. Stat. The following. treated as include the Organic Act, economy, unusual enact- Cession, Treaty Soon after the First. ed criminal an entire and civil code for the United States District Court concluded by adopting Oregon.10 Alaska laws country” that was not “Indian and Alaska Report The notes: thus the Indian Intercourse 1834 did Act of Nothing language in the of the 1884 Act apply in Alaska. United States Sev legislative history or its indicates that (D.Ore.1872). eloff, 1 Fed. 64 The Alaska Congress any to intended area of Alaska court concluded: country or be Indian that Alaska Natives villages

If should think it that desirable would subject not be any provision Oregon this or of the Indian the civil criminal laws of and Report provided: on 7. Governor’s Task Force Feder- 10.Section of the Act “That the (Feb. 14, 1986) (here- al-State-Tribal Relations general Oregon the State of laws of now in force Report). inafter hereby are trict, to be declared the law in said dis- may applicable so far the same be and (1982), 8. 25 U.S.C. 473a 49 Stat. 1250 provisions not in conflict with the of this Act (1873); the laws of the United States...." Report, supra 9. 17 Stat. 485-530 note at 73. States, jurisdiction of subject as the white residents extent

the same courts.... its the District. Id. supra note at

Report, 1899, Congress de- Third. In enacted a subject to the were held Natives Alaska superseding crim- tailed criminal code12 Oregon criminal laws general civil Oregon which had been inal laws Organic though even Alas- under by reference in the adopted for Alaska in his governor recommended ka’s second enacting In local Organic Act of 1884. be amend- that report to this, national legislation such as “the exempt be Natives would ed so that as the ... acts States, v. United In provisions.11 Kie in ad- act within their several limits ments (1886), Tlingit Indian Fed. ordinary rights person ministering the Tlingit village his in a killed wife who had Dana, In re Fed. property.” prosecution subject properly was held (D.C.N.Y.1895); United States 899-900 Oregon Criminal provision under a Doo-Noch-Keen, 2 Alaska applicable in Alaska rather Code was supra Either the Report, note 88-89. Major the Federal Indian than under Act,13 law, Major Crimes Indian or tribal (1885) Act, 23 Stat. 362 which was Crimes crime, depending the nature by one applicable to homicides committed not the 1899 Alaska Criminal Code would Indian in Indian against Indian another if villages apply to Natives within Native country. sovereign or located Quah, (1886), However, Congress In re Sah country.” 31 F. 327 “Indian it Tlingit cus- enacted a in 190914 made person was slave statute who quite petition alleging clear Criminal Code corpus a habeas tom filed applicable. illegal. Tling- subjugation His that his Ex Parte it master country, court customs of country, and subject alcoholic 27 L.Ed. concluded to no except argued: Crow beverages, Indians.” law, that Alaska was not Dog, “[T]hat they save and that the rule purpose Id. at 328. Alaska is Indian inhabitants usages District control are tion of authority “to arrest under the nal Code Service” as a District of Alaska General of the “any person employed in the The 1909 Act any provisions of the jurisdiction of the Alaska School Alaska.” special empowered charged ... peace States to with the viola Native of ^[1899] only officer with Attorney appoint schools School Crimi Territory jurisdic- Dakota lacked schools in Native vil Service were Native supra note try Report, tion to an Indian who had murdered lages. “Therefore, he was con another because obvious that law, apply did code of to be to Alaska sidered criminal Alaska applicable living to Indians not white Indians: Booth, States v. communities.” recog- The no United States has at time (Alaska 1958). F.Supp. 161 269 independence nized or rela- Fourth. Indians, among tions these has never any capacity, treated with them in but replaced Congress Ore- In 1900 the every Congress from relation to gon Code with a detailed Alaska Civil people territory clearly of this (1900). Like the Code. 31 Stat. Civil they Code, nothing inferable that have been and now Criminal subjects, regarded dependent legislative history are ame- the 1900 penal nable to the laws the United Civil Code indicates (1885). Report 11. of the of Alaska 13. Stat. 362 Governor Report, supra note at 78. (1909). Stat. 837 (1899). 12. 30 Stat. 1253 exempt living understanding Alaska Natives intended in had del- purview villages from the egated legislature’s jurisdiction Native civil powers the Civil Code. over the internal form and self-government villages in Native (footnote at 90 inte- Report, supra note surrounding the area within and text). grated into villages country. such not Indian was Fifth. Further, Report, supra note at 94. years some after first assert- legislature territorial levied and collected Alaska, Congress ing jurisdiction over living taxes Alaska Natives Native legislature established a territorial to villages to the same extent that it levied delegated significant segment which it and collected taxes from other residents. jurisdiction of its criminal and civil over 1919; E.g., note Report, supra Ch. SLA § territory.141 the Act extended the Section 9 of the 1912 at 97. Where Indians have sover- legislative power of the eign powers, jur- states and territories lack legislature rightful “to all sub- territorial Cohen, isdiction to tax them. F. Handbook legislation jects of not inconsistent with (1982); Report, Federal Indian Law the Constitution and laws of the United supra note at 97. specifically States.” Section 9 then empted ex.- Reorgani- 4. Neither the Alaska Indian subjects legisla- a list of from the subsequent zation Act of 1936 nor jurisdiction.142 ture’s criminal and civil Alaska Natives and Native not included on the list and there is no Congressional legislation granted villages recognized sovereign status to groups. Alaska Native legislative history evidence in the Reorganization (IRA) 1912 Act that intended to Act16 limit designed was legislature’s encourage the territorial inal civil and Indians crim- to “re self-government vitalize their jurisdiction through over Alaska Natives liv- adoption of ing villages. constitutions bylaws through the creation of corpora chartered tions, power with 141. 37 Stat. 512 to conduct the business and economic affairs of the tribe.” Mes Congress prohibited leg- the territorial enacting legislation islature from which con- Apache calero Jones, 145, 114, Tribe v. lands, veyed property taxed Unit- S.Ct. States, imposed discriminatory ed taxes on non- Section 16 of empow the IRA residents, granted spe- exclusive franchises or tribe, ers an Indian “or residing tribes lotteries, privileges, gambling, cial authorized the same adopt reservation” to a constitu alcohol, appropri- or the manufacture or sale of by-laws approval schools, money private ated issued bonds or Secretary of the Interior. 25 U.S.C. 476. money, borrowed budget or resulted in an unbalanced Section 17 authorized the Secretary to is or ununiform taxation. sue incorporation charters of to tribes. 25 Report, supra note at 90-91. U.S.C. 477. legislature The territorial did enact laws When the IRA was initially passed in governing living Alaska Natives in Native 1934, section 16 but not section 17 was villages. “One of the Legislature’s applicable to Alaska. Since section 16 was first enactments was a statute which com limited to a tribe or residing on a pelled Native children to attend Bureau of reservation and Alaska had few reserva- Education Schools and established the fail tions, applicability quite limited.17 ure parent of a Native to send his or her This Reorganization Act, changed by the Alaska Indian child to school as a criminal offense.”15 49 Stat. 1250 legislature second territorial in 1915 which in section 1 extended section 17 and enacted a authorizing law Alaska Natives some other sections of the IRA to Alaska living in forty with or more following proviso: residents to establish self-governing “a vil lage organization for purpose gov the PROVIDED, groups in That of Indians affairs_” erning certain local 11, Ch. 1, recognized prior Alaska not May to 1, SLA 1915. According to Report: § the tribes, having 1936 as bands or a but contemporaneous occupation, ex- common bond of or The 1915 Act is a pression associa- tion, legislature’s or residence of the territorial within well-defined 1913; 7, 15. Ch. Report, supra § SLA note 16. seq. U.S.C. 461 et 48 Stat. 988 at 91. Report,

17. supra 7, note at 108 n. 74. reserva- Village not have a does dis- or rural community neighborhood, trict, may organize shows, and, never as the record insofar adopt constitutions to organized section under one. It was of had charters to receive and by-laws and incorporation of section proviso and the 16 of the IRA loans and However, consistent IRA. [IRA], of the Alaska 16, of the ... 10, §§ history of the Alaska legislative the with IRA, the Secre- Act authorized 2 of the Section Village of Stevens the constitution designate Indian to the Interior tary of power general police give it does —the to withdraw Alaska and in reservations re- except “any keep to power order— by “actually occupied Indians public lands by set aside the serve purpose. for that or Eskimos” Withholding gener- the village.”20 the for al Interior accomplished under police power was language section 1 of the proviso The which instructions Department Reorganization Act “as- prescribe to power “The part: stated were not mem- that Alaska Natives sumed relating government, for civil ordinances federally recognized Indian bers order, may extend law and particularly to tribes_” 7, Report, note 110- supra an may as be held only to such lands Congressional express ll.18 It was thus com- use of the the Indian reservation groups to applicable most Native statement in Alaska that munity. ...”21 they recog- had not been nized as tribes. Village granted never Since Stevens reservation, power of local the section 2 of the The more controversial In our extended to it. empowered Secretary to cre- been ment has never Alaska, regarded view, approval of section the mere ate reservations Village by the Sec- Department necessary to Interior for Stevens constitution protect rights Interior, Alaska Natives. with- which itself government retary holds Village, economic supra power note 111. Reser- to Report, of local thought Vil- to be a neces- to afford the vations were also not suffice does purpose appli- sary precondition to communities’ lage native tribal status exercising government powers under local doctrine of cation Ickes Secretary immunity. 16 of the IRA. As section stated in his letter to the House Committee accompanying summary, Reorga- Bill: In on Indian Affairs Alaska Indian important nization First, of Alaska are to Act is for two reasons. native communities “[I]f expressly it up systems government, of local it will states that Native set necessary stipulate groups in geographical Alaska have not been accorded Second, jurisdictions. recognition. forth a limits of their set accomplish Reservations sets might up by Secretary means achieve which Native of the Interior will self-governing status. this.”19 18. The House Committee on Indian Village property Affairs said or lands without proviso necessary consent, aid, that this peculiar “is get legal because as set forth in organizations nontribal under which the act June operate. They the Alaska Indians organization have no tribal To the use members nonmem- control general- as the term is understood bers of reserve aside Federal set ly.” H.Rep. Cong., No. 74th 2d Sess. Village keep for the order Government in the reserve. life, guard arts and to foster native To H.Rep. No. Cong., 74th 2d Sess. 3-5 against possessions native customs not (1936) (letter from Harold Ickes to Honorable law. Rogers), reprinted Will Report, supra . note Only grant third clause conditional is a at 112. power government; powers, unique to the other IV, important, corporations are 20. Article the Constitution of the while common organizations. provides: of Stevens and fraternal following powers: The shall have the Interior, things good 21.Dept, Organiza- do To all for the common Instructions for Reorganization right tions Alaska Under The which it has done or has had the to do (48 984) past against of June Stat. And and which Federal are (49 1250) May may apply. Act of Stat. law and law as And such Territorial Thereto, (Decem- 1(a) Amendments Instruction To deal with the and Territorial Federal 1937), Report, reprinted supra ber note Governments on Village, matters interest stop any giving away taking at 113. Stevens that status was case of subject lands are tion. to state and local taxa- not achieved.22 Id. 1620. ANCSA abolishes all § in except reservations Alaska the Annette legislation passed sub- nothing in We see Island Reserve. Id. 1618. gives ANCSA § Reorganiza- sequent the Alaska to either state chartered municipalities or the recognition of constitutes Act which 1,280 state itself at least acres of the land authority. To the con- sovereign tribal underlying nificantly, village. each Sig- Id. § Native Claims of the Alaska trary, passage grant go this does not to IRA (ANCSA)23evidences Con- Settlement gress’s corporations, which would been logi- have non-reservation intent recipients cal if they were meant to have a policy subject largely to law. be Indeed, in government.25 role local there is 2(b): in section expressed of ANCSA nothing legislative in the history ANC- accomplished the settlement should be SA which remotely suggests that IRA vil- conformity certainty, in rapidly, with lages are to be recognized having as real economic and social needs with the of government role. Natives, litigation, by with maxi- without in participation mum sions Natives deci- 5. Conclusion affecting rights property, and their In a following series enactments the into the establishing ra- any permanent without Treaty first third extending of Cession and institutions, rights, privi- cially defined this century, Congress has creating leges, obligations, or without demonstrated communities intent that Alaska Native wardship system lengthy or reservation not be accorded trusteeship, adding or and without to tribal status. The this conclusion was the zation Act a mechanism accuracy historical property categories of and institutions expressly recognized enjoying special privileges or tax to proviso to the Reorgani- Alaska Indian legislation establishing special relation- and, although that Act afforded ships between the United States self-governing sta- ment and the of Alaska.... State might tus be achieved Native communi- 1601(b). 43 U.S.C. § ties, the mechanism not utilized Village. case of grants Stevens simple title in No enactment ANCSA fee subsequent regional corporations Reorgani- to village lands to Alaska Indian granted zation Act or organized under which are which are state law sov- ereign authority in sons, and in Alaska. For these any be treated as rea- corporations, exceptions opinions as accordance with temporary our Metlakatla, Atkinson and alienability stock. Id. we conclude §§ is not paid entitled to uti- The funds under ANCSA paid regional corporations.24 Id. lize defense of tribal are immuni- ty. temporary period, 1605. After a ANCSA parties special 22. The another issue this protection briefed IRA concluded that the of immu- IRA, nity case: whether section 16 of the 25 U.S.C. necessary great or desirable for the (1982), prevents against § 476 Ste- execution property. bulk Native Village's vens assets without its consent. Enti- 1613(c)(3) amended, organized 25.Section provides: ties under section 16 the IRA are sale, power prevent vested with "to dis- Village Corporation convey [T]he shall then lease, position, lands, any encumbrance Municipal Corporation in the Native vil- lands, lage interests in or other tribal assets without to the State Municipal in trust for appeal Corporation consent the tribe.” village established the Native money judgment, future, is from a from an order remaining in the title to the surface characterizing assets execution. improved estate of the land on which the what, question any, if are village assets available is located and as much addi- satisfy judgment should be raised in necessary tional land as is community post-judgment proceeding. trial in a expansion, court appropriate rights-of-way use, public community other foreseeable seq. U.S.C. 1601 et Provided, needs: That the amount lands to purpose 24. One served the doctrine of tribal Municipal Corporation transferred to the sovereign immunity give special protection is to 1,280 or in trust shall be no less than acres to dane, money. Indian lands and Atkinson v. Hal- Village Corporation unless the and Munic- Congress, by P.2d granting at 160. ipal- Corporation or the State in trust can money regu- Natives’ lands and to state agree writing on an amount which is less corporations lated exempt which are not them one eighty thousand two hundred suit, imposing significant and without restraints acres.... lands, on the evidently alienation of the Finding Erred Village that the con- also asserts Lower Court The that Stevens B. against was prohibitions federal the Contract violated tract Enforceable responds AMP that it contracts. Allegations Violated contingent fee Despite project Regulations federally funded Procurement only Federal that AMP the electrification by was on worked moved to dismiss Village also Stevens governed by the amend- was project, which con- ground that on the claim

AMP’s provided for contract that ment violated it because unenforceable tract position AMP’s compensation. hourly rate regulations. procurement state and federal The lower record. supported is not holding motion, court denied trial Slaby’s in Daniel assertions found court affidavit, violation, any is a fact there “if that of AMP’s support submitted waived, Federal has been violation to be true. summary judgment, for motion it, the State waived government’s following: contained the That affidavit Village has —the it, and waived ment’s any any project/grants have waived d. Additional that I this action parties — preparation on worked included of the violation.” Village] capital improvement .[Stevens pro is clear that violations law Case program submitted to the Alaska State regulations may render a con curement (item B), a HUD CDBG Legislature Comdisco, v. Inc. unenforceable. tract [Community Development Block Grant] States, (7th cir. 756 F.2d United developing revolving housing for loan Quinn Corp., v. and Western 1985); Gulf a HUD program, jobs project for devel- (2d Cir.1981); Schoenbrod v. F.2d 89 oping cooperative process- a fisheries States, 404, 187 Ct.Cl. 410 F.2d (item ing plant C), on the Yukon River Newspaper New York Mail & grant requests logging two CRA for States, F.Supp. Transp. Co. United storage (items F). E and fuel & I denied, 276, 139 cert. Ct.Cl. 751 grants worked on these based on the 332, 2 L.Ed.2d 260 agreement contractual which included de- applied cases (1957). This same rule is payment receipt of fee ferral grant. until agency involving regulations violations contained in manuals and circu that are lars, case, in this rather than statutes. Thus, in addition to the electrification Schoenbrod, 402; Chatterton 410 F.2d at project, Slaby federally several worked on Co., Waverly Terminal F.Supp. projects for funded (D.N.J.1943). contingent arrangement fee in violation of procurement procedures.26 the federal finding court’s of waiver The lower The contract at issue clearly here state violated procurement procedures by the Nor did the court supported record. required by Management Office of finding when it offer rationale for this (OMB) Budget Circular A-102 Attachment parties its decision. Private announced O. The contract competitively ne requirements reg- such cannot waive gotiated, and it provision contained no Chatterton, F.Supp. at 547. ulations. termination grantee. Moreover, there is evidence that village former given chief was joba on the argues AMP that electrification it was Stevens Vil- project by job lage’s AMP —a responsibility procurement that prede AMP’s under the cessors had give procedures refused to him. competing Since the advertise bids village former participated chief required provisions and to include the select ing AMP, appears it contract was contract that Stevens entered in violation of the capitalize no-conflict-of-in should not be allowed to on its provision terest contained in responsibility. Circular A- failure to fulfill that But important one purpose obvious and grant, state required O, procedures Unlike that the OMB identical Circular A-102 will be Attachment procurement grant. procedures conditions to another As- included in the suming they grant apply generally, state do express contract contain no similar indica- they regard conclusion obtains generally applied. are to work on the In other words, projects state Slaby. listed cannot be assumed that because the procedures are made a condition of one eign immunity. my ensure that is to procedures view procurement public intended government never tent to Alaska the spent as the stated with clarity sufficient an funds are in- awith When faced sovereign to be. waive the immunity them of held that case, villages. of Claims Court Native I agree While similar that estopped to not be could express- States has never the United provisions validity ly of contract deny as procurement regula- purposes sovereign for of violated immunity, firmly the United is that it sovereign The court found established that a historically tions. those terms. suit, tribe could not be bound is immune from States even Curry v. United in the Co. Park recognition, absence of federal Yosemite until States, 217 Ct.Cl. F.2d or the expressly tribe waives its immunity. Accordingly, I would remand this case for a factual determination Nonetheless, also found: the court “[I]t Village whether Stevens possesses the at- that the Government bar- equally is clear sovereign tributes of a Indian tribe that for, of gained received the benefit sovereign would entitle it to immunity.1 services_ we For this reason YPC’s quantum a plaintiff is entitled to hold the recovery for the reasonable value meruit Id. received defendant.” of the services I. appropriate is here. A similar award “Congress The dem- court holds that has jury solely The was instructed on breach onstrated its intent that Alaska Native damages. contract measures The sovereign be communities not accorded must, therefore, case retrial be remanded a status,” and that therefore “Stevens damages issue based on a Village is entitled to utilize the defense quantum meruit theory.27 immunity.” sovereign of tribal It is true Village’s if that waived the sover- in part, AFFIRMED REMANDED in eign immunity, Village barred would be part. utilizing “[Tjribal from ereignty this defense. sov- superior ... is Santa plenary Congress.” control Martinez, 49, 58, Clara Pueblo v. U.S. Justice, RABINOWITZ, joined by Chief 98 S.Ct. (1978). COMPTON,Justice, dissenting. I if dissent from II. Part A. of the court’s to waive2 a opinion sovereign immunity, tribe’s clearly addresses issue of sover- must Village 27. argued also that (1) its contract in the the court instant case: that federal personal with AMPwas a service recognition contract which prerequisite is a to tribal was terminable at the will of party. either (2) Be- id. at that the Alaska cause we find that the contract is not (ANCSA), enforce- Native Claims Settlement Act able procurement because it violates regula- C.A. §§ 1601-1629a was waiver "the tions, we need not address this issue. immunity village governments organized un- der IRA section 16.” Id. at 24 n. 13. After decision, unpublished an the Federal Dis- carefully considering history Village trict Court recently District of Alaska ANCSA, and the effects of id. at the District precise presented addressed the issue in the Village Court concluded that was entitled to Village Tyonek instant case. See Native sovereign immunity, which neither it nor Con- Puckett, Civil, transcript No. A82-369 of deci- gress had waived. Id. at 30. (D.Alaska 3, 1986). case, sion Dec. In that Tyonek, an IRA section opinion explain court’s does not whether corporation, attempting plaintiff to en- Congress waived villages’ or discontinued the prohibiting force ordinance non-mem- sovereign immunity, or somehow declared residing Village. bers from in the The defend- immunity the may never existed. Whatever the case counterclaimed, ants but the court concluded be, any congressional expression of intent by sovereign that the counterclaim was barred must applied meet the strict standard to waiver. immunity. Any lesser standard would run afoul of the persuasively expressly The federal court principle settled passed that "statutes for the rejected principal arguments the two made settled “It isdiction over Indian See intent: tribes. express be ‘cannot C.A. U.S.C.A. waiver ex unequivocally (Supp.1987). grant Even this jur must broad implied but ” added; citation isdiction, however, (emphasis Id. was not sufficient pressed.’ Ninth Circuit Accordingly, sovereign immunity. waive omitted). conten “rejected the recently Court held: “We Appeals have never read un enactments L 280 congressional Pub to constitute a waiver grant implicitly immunity may sovereign immunity, nor found L 280 Pub related against bring suit represent authority to abandonment of the federal v. Cal Tribe Indian interest in guarding Chemehuevi self-gover tribes.” 757 Equalization, Bd. nance.” Three State Tribes of Affiliated of ifornia (compulsory coun Cir.) (9th Fort Berthold Reservation v. 1047, 1053 Engi Wold F.2d 13(a) of the neering, 877, 892, of Rule 2305, 476 U.S. requirement 106 S.Ct. terclaim not 2314, held 881, Procedure 90 (1986). short, Civil L.Ed.2d 894 of In Rules Federal rev’d immunity), jurisdiction of tribal state over an Indian is not tribe to be waiver 289, 9, 106 88 S.Ct. U.S. grounds, sovereignty 474 inconsistent with gen tribal (1985). eral or sovereign with tribal immunity 9 L.Ed.2d Thus, particular. nothing any of previously recognized This court pre-1936 cited by enactments the court Haldane, Atkinson principles. In these constitutes sovereign a waiver of immuni 1977), 151, (Alaska we stated: 569 P.2d 167 ty- only immunity waived “[Sovereign ... [is] The court next turns to the Indian Reor unambiguous lan- if it is clear from (IRA), ganization Act 25 U.S.C.A. 461- §§ legislative guage of statute] [the (1983). provision of The court cites no 479 intended such a history that remotely Act resembles waiver bar, at the court fails In the case waiver.” Indeed, sovereign immunity.3 of is some a con- canons and infers to observe these perplexing to infer a what even waiver immunity from a bat- gressional waiver of of provisions of the IRA. One not that do address the tery of enactments purposes of the IRA was to revi the clear immunity. sovereign issue see, e.g., Mes self-government, talize tribal Jones, 145, Apache Tribe v. 411 calero U.S. pre-1936 cites numerous The court first 114, 1267, 1272, 93 36 L.Ed.2d judicial suggest- S.Ct. decisions enactments sovereign immunity “is a villages ing time that Native were at that necessary corollary to Indian law not to state considered Three self-governance.” country.” “Indian None these enact- Affiliated Tribes, 890, 2313, at 106 S.Ct. ments, however, express U.S. contained an 894. The United States Su L.Ed.2d at sovereign immunity. Con- waiver of When preme Reorgani Court has held that gress juris- subjects an tribe “[t]he strip diction, not Indian tribes ... implicitly zation did strip it does not the tribe immunity from state and local example, their historic sovereignty. of its inherent For Tribe, Apache control.” Mescalero 588, (1953) 280, 67 Stat. Public Law 1267, states, 36 L.Ed.2d at U.S. at 93 S.Ct. explicitly granted to certain includ- Although agree I court’s ing Alaska, jur- 121.4 extensive and criminal civil sovereign to tribe’s claim is not fatal dependent status immunity. benefit of Indian tribes are to be ... view, my II. this construed, Part In See liberally expressions being doubtful infra "unequivocal expression” of an section Bryan resolved favor the Indians." villages' sovereign Congress’s to waive intent County, Itasca 96 S.Ct. immunity. (1976) (quoting Alas- States, ka Pac. Fisheries v. 89, villages suggests Alaska Native that The court (1918)). 63 L.Ed. possess no incorporated section 16 under IRA they never governmental powers because court finds in the Alaska amendment disagree rea- I for two express Congressional granted the IRA "an statement reservations. First, plain argument applicable groups nullifies the to most Native in Alaska sons. this that IRA, they recognized language amendment See of the Alaska had been tribes." "groups Indians 473a is true this on its face allows U.S.C.A. It sec- incorporate acknowledges under section 16 without that some had Alaska” 25 U.S.C.A. any See not been ever, as of mention of reservations. 1936. How- recognition of 473a the lack of federal tribal incorporation deprive IRA alone does not immunity. conclusion does recognition not constitute As discussed above in connec- status, note I cannot see the earlier enactments and tion with Law waive the Public infra agree necessarily when combined with does not enactments, previous sovereign immunity somehow consti- the tutes a waiver of Indian sovereign immunity. subjects when it them to some mea- tribes sure of state law.5 ANCSA, Similarly, in the final enactment short, nothing ANCSA, IRA, court, considered address did not approaches of the earlier enactments immunity. The court does not cite type express congressional the ment that is immunity. state- single provision a or directly ANCSA that necessary to waive indirectly suggests a waiver of sover- Thus, if Stevens is a Rather, eign immunity. the court infers principles “tribe” under common law intent, approach this with the rule which is at odds sovereign immunity, this court lacks that a waiver of jurisdiction adjudicate the claim in the clearly expressed. must be case. instant provisions One of the the court uses to bolster its waiver conclusion is the section permits taxation of certain lands II. granted pursuant to ANCSA. 43 U.S.C.A. The court also concludes that an Indian 1620(d) (1986). In my view this section sovereign im- may not avail itself of tribe munity supports opposite conclusion, because it recogni- express in the absence of example an excellent of type of clear of either tion the executive branch ment. This tribal status expression Congress must make to waive govern- of the federal in this immunity. case tax argument has been considered The court courts, concludes that ANCSA “evi- rejected by the federal is incon- Congress’s dences intent that underlying non-reserva- sistent with the basis tion be largely subject to sovereign immunity, doctrine of tribal is not assuming law.” Even true, that this is it supported by our own decisions.6 Second, argument negate many case, would project cooper- tion the instant with the approved constitutions ing under section includ- Department Housing of ation of the federal Village, explicitly which Development. Urban record no The leaves grant powers self-government even in the Village doubt that Stevens in fact continues to absence of a reservation. The Constitution of governmental serve a role with the assistance of Village grants Village the Native of Stevens agencies. power things do all for the common "[t]o Recently again recognized that this court good right has done or has had the ANCSA, ambiguities as in other federal stat- past....” By-laws do in the Constitution and Indians, are to be con- utes for the benefit of Stevens, IV, the Native art. 1.§ strued in favor of the Indians. Hakala v. Atxam Thus, power to control the use of reser- (Alaska, 1988). Corp., 753 P.2d merely component vation was one of a much grant power. broader cally If the histori- agree I with the court incorporation that IRA powers sovereign exercised of a tribe not alone does not recognition constitute federal applicable inconsistent with federal and territo- purposes status for sovereign immuni- law, clearly grants rial its constitution it the ty, my but reasons are somewhat different. power capacity. to continue in this disagree notes, I further opinion with the court’s conclusion As the court’s the Alaska that the Alaska Native Claims Settlement Act any "group[ amendment to the IRA allowed of] (ANCSA), 43 U.S.C.A. 1601-1629a §§ Indians in Alaska” with a "common bond” to Congress's corpo- demonstrates intent that IRA incorporate. 25 U.S.C.A. § 473a rations in Alaska "were meant to have a [not] language extremely "common bond” broad. government.” self-govern- fact, role in local Local nearly In it is previ- identical to that in a very purpose ment was the ously-enacted of IRA section 16 providing organiza- statute for the corporations, and there is no indication having whatso- nothing tion of federal credit unions do with Indians. repeal ever that intended ANCSA to 12 U.S.C.A. 1759 corporations IRA section 16 in Alaska. If IRA by Congress, Whether or not so intended expansive to have no further role in local language "common bond” has result- ment, explain why it is difficult to reorganization the Native ed in under IRA section 16 of Village of Stevens coordinated the clearly electrifica- Alaska Native had no histori- Cohen, Feder- F. Handbook of guished.’ recogni- express federal its support of In (1945) (emphasis in al Indian Law original) on Atkinson court relies analysis, the (Alaska 1977). Haldane, 569 P.2d v. However, Atkinson, sover- noted as we doctrine, and immunity is a eign course, longer are, no “Indian tribes supremacy court is bound this clause, of sover- full attributes ‘possessed of the Const, VI, cl. to follow art. incorporation within eignty.’ ... Their holdings the United States States, and the United territory of the their P.2d at 163. Court. protection, neces- acceptance of its aspects of them of some sarily divested taken opinion position my In previous- they had express necessity for regard to the court treaty provision By specific ly exercised. conflict with recognition is direct

federal federal law. sovereign powers; up they yielded The First Circuit statute, plenary in the exercise of and, directly rely- Appeals faced this issue ing on control, removed still oth- Congress has precedent, concluded Supreme Court ers. recognition implied federal express or that was immunity. necessary to establish Indi- recognize that the our cases “But up their full given have an tribes sovereignty.... sovereignty that to, and our research has are cited We unique retain is of Indian tribes uncovered, case which conditions the no only exists It limited character. on the invocation factors lant: formal federal and is the sufferance to appel- emphasized the state or But until Con- complete defeasance. recognition of the existing acts, their gress sovereign powers. retain statute, particular by treaty or tribe sum, dealing prolonged course of between aspects sov- possess those tribes still government, geo- of and the federal tribe treaty or by ereignty not withdrawn location, graphic na- the tribe’s warlike statute, neces- implication as a by or ture, protection of a the absence of state status dependent sary result their exercise of a tribe or the continued full tribe’s of sovereign powers. Bottomly Tribe, Passamaquoddy 599 surpris- authority of is not absence 1061, (1st Cir.1979) (quoting F.2d 1065-66 ing, urged by appellant analysis for the Wheeler, 313, United States v. 435 U.S. and the state seems to us to fundamen- 322-23, 303, 1079, 1085-86, 98 S.Ct. 55 L.Ed.2d tally principles of misconceive basic fed- (1978))(emphasis original 312-13 or effect, ap- eral Indian law. their court; by Bottomly added footnotes omit- proach the of an would condition exercise ted).7 Since had not waived the aspect sovereignty showing on a of sovereign tribe’s that the court held granted by it had federal recognition of the been the tribe the doctrine barred the suit even government, by explicit either though Congress explicitly had never implicitlythrough a course implicitly recognized the tribe. 599 F.2d at dealing. Supreme re- As the however, proper cently explained, analysis just is the reverse: Although Court has never issue, addressed this are, analysis powers of Indian “The court’s relevant decisions leads to the conclusion the First Circuit reached. general, powers a limited same ‘inherent Im- been extin- sovereignty which has never Therefore, curring). unlikely For it seems units. that Con governmental tribal as cal existence gress recognize Corporation is intended to all IRA 16 section Indian example, Ketchikan corporations purposes sovereign and 17. as tribes for 16 sections IRA organized both any immunity. descended "are members Yet its community, natives but are particular Indian Equalization in Ketchi v. Alaska Native happen live 7. Accord Board differing groups who Sisterhood, 14, Camp No. 666 P.2d v. Alaska Bhd. and 1015, Equalization Board kan.” J., 14, 1983) (Rabinowitz, (Alaska Sisterhood, P.2d 666 con- Camp. No. 1024 Bhd. J., 1983) (Rabinowitz, curring). con 1015, (Alaska 1025

47 ty. contrary, To the discussion in each attribute of sover- munity from suit is one n his tribes, suggests immunity that the basis eignty which are retained sovereign rather torical status than predating annexation entities recognition. though is Three “It See United States. Affiliated Tribes, 890, 2313, 106 sovereigns 476 U.S. at S.Ct. at immunity theirs as which was (“The 90 L.Ed.2d at 894 eign common law sover for their bene- passed to the United States fit, immunity possessed properties did.” United Tribe is a as their tribal necessary corollary and Fidelity v. United States & Guar. States self-governance.”); 653, 656, Co., 506, 60 Santa Clara Pueb S.Ct. lo, 58, 1677, 436 at S.Ct. at U.S. L.Ed. (“Indian long L.Ed.2d at 115 tribes have Therefore, need for the feder- is no there possessing been law common- recognize the expressly to al immunity traditionally from suit en the tribe to retain sovereignty of a tribe for joyed sovereign powers.”); U.S. Fideli sovereignty. As the of its attributes most ty, 309 U.S. (“These 60 S.Ct. L.Ed. just year, explained last Supreme Court exempt at from suit without Indian Nations are all inherent at- the Tribe retains “Because congressional authoriza sovereignty that have been tributes though It tion. was theirs as is as Government, the by the Federal divested passed sovereigns to the silence ... is that inference from proper benefit, States for their as their remains intact.” sovereign power ... the Iowa Mut. Ins. Co. v. did.”).8 properties LaPlante, 480 U.S. (1987) 94 L.Ed.2d 107 S.Ct. It is finding true that the basis Apache (quoting Jicarilla Merrion v. sovereign immunity in Atkinson v. Tribe, n. Haldane, (Alaska 1977) 569 P.2d 151 37 n. 14 n. 907-08 express contrary recognition. Wheeler, (1982)). 23, 435 U.S. at 322- See also implication of the court’s 1085-86, 55 L.Ed.2d at 312- 98 S.Ct. at opinion today, nothing the Atkinson above). (quoted opinion suggests only is the way this sovereign immunity can be established. In the instant case has neither Once or the executive branch has expressly recognized Village as a tribe recognized tribe, question nonjusti- purposes for expressly immunity nor ciable, and there further is no need for the the Village’s immunity. waived the explore court to basis for historical Therefore, if fact a histori- finding sovereignty. explained, As we cally sovereign tribe, court is bound to “Once the executive branch determined honor immunity its suit. from that the Community Metlakatla Indian is tribe, is nonjusticiable a Supreme The court cites three Court political question, Community the is enti- pertaining sovereign cases to the of to all the of tled Id. benefits tribal status.” immunity: Three Tribes the of Affiliated at 163. Even in absence of such Engi Fort Berthold Reservation Wold recognition, however, we remain bound to 890, 877, 2305, neering, 476 106 U.S. S.Ct. sovereignty honor the a historical 2313, (1986); 881, 894 Santa recognized implicitly tribe. We in de- Martinez, 49, 58, 436 Clara Pueblo v. U.S. scribing immunity suit as a from “re- L.Ed.2d 56 115 vestige[ formerly ... aof com- tain[ed] ]” Fidelity, 309 512- U.S. U.S. at plete sovereignty. at 160. Id. 60 S.Ct. at 84 L.Ed. at 898-99. In apparently of these each some federal cases there recognition of the tribe. However, there is indication that no the the finding relied on in Court this fact III. sovereign immunity. tribes entitled to None of the three federal respective Having explicitly that cases mentions determined the federal recognition has expressly of tribal status their recognized Stevens Village sovereign discussions of immuni as a for purposes tribe constitution, immunity Oregon, thought F.2d 8. See also United 657 neces- States ('Indian sary (9th Cir.1981) preserve existence.") enjoy tribes autonomous tribal (per J.). Kennedy, immunity sovereigns predating they because are immunity. case, In that I remand the sovereign would stated, “By opportunity a ‘tribe’ we understand to afford a case to make a factual body of showing alleged to its Indians of the or same a similar race, united in a community one under lead tribal status. ership government, inhabiting par a that no court has ever appears It fash- ticular though sometimes ill-definedterrito specifically of “tribe” for ioned a definition ry....” Id. S.Ct. determining sovereign purposes immuni- L.Ed. at 523. Some modern courts have ty. Unfortunately, reference to definitions purposes. followed this definition for other purposes for other does not nec- “tribe” Mashpee See Interior, Secretary Tribe v. essarily provide definitive answer (1st F.2d Cir.1987); immunity leading A sovereign context. au- Joint Tribal Passamaquod Council thority explains: dy Morton, Tribe v. 528 F.2d 377 n. 8 (1st Cir.1975). legal tribe has no universal The term single There is no definition. statute defining an Indian tribe for all I think this definition sets forth minimum purposes, although the Constitution and requirements for tribal immuni- immuni- regulations many federal statutes and ty. ty above, however, As discussed make use of the term. In most instances from suit derives from question of tribal existence can be possessed a tribe at the time the Unit- treaty, resolved reference to stat- ed superior States sovereignty. asserted ute, order, agreement recog- Thus, executive requirements addition nizing in question. the tribe definition, other Montoya there is also a need for tribe, many cases the definition of like showing sovereignty. of historical generic terms, other depend such will part which purposes on the context and (BIA) Bureau Indian Affairs term is used. question adopting regula- considered this acknowledge tions to existence Indi- Felix S. Cohen’s Handbook Federal In an tribes entitled to the “immunities and (R. 1982) (foot ed. dian Law 3 note Strickland privileges” recognized tribes. 25 omitted). C.F.R. Presumably 83.2 sover- eign One of the most often cited definitions of among the immunities appears Montoya recognized. “tribe” appears v. United It BIA has States, S.Ct. 45 L.Ed. not corporations IRA in Alaska involving a case not pursuant regulations.9 to these groups eligible petition ity 9. Alaska Native are of native entities in To Alaska. alleviate recognition regulations these might publi- for tribal confusion arise from multiple listing, basis as in the eligibility "on the same lower 48 cation of a the fol- 39,361 (1978). FedJReg. Although lowing preliminary States." 43 list shows those entities to procedures originally provided that gives pri- which tiie Bureau of Indian Affairs among corporations ority purposes IRA were not those Alaska funding and services. id., 53,133-34. groups eligible petition, subsequent years, the BIA Id at In practice the BIA published listing a list in 1982 include numerous has continued the Alaska “Na- corporations, including tribes, separately Alaska IRA Stevens Vil- tive Entities” lower 53,133, 53,135 (1982). lage. list, Fed.Reg. although explanation This quoted the 1982 above has separate recog- the list republished. Fed.Reg. which from not been See 50 tribes, 25,118 Fed.Reg. nized “Alaska lower was entitled Na- Recognized Eligible tive to Receive appears Entities Thus it that the BIA has listed Alaska services, eligible groups Services From the United States Bureau of Indi- but has ex- 53,133. Following cap- plicitly an Id. at specify Affairs.” this declined to which in Alas- explanation purpose might tion was an of the of the ka as historical tribes. See Equalization list: also Board v. Alaska Native Bhd Sisterhood, Camp eligibility No. 666 P.2d While for services administered J., (Rabinowitz, concurring). 1024 n. 2 generally But see of Indian Affairs is Bureau Report of the Governor’s Task Force on Feder- limited to historical communities. reservations, (Feb. 1986) residing al-State-Tribal Relations 65-66 (citing of Indians and their members, unique unwritten from communications Ulterior circumstances have made Department stating eligible officials that deletion of additional entities in Alaska winch are above-quoted explanation specifically not in- historial tribes. Such [sic] circumstances tribes). recognition tended as multiple, overlapping eligibil- have in entities as resulted Village responds has that it Nevertheless, provide status. regulations can these documentation,” but declined inquiry. “reams of guidance present in significant trial court because AMP present it in the considered BIA in The factors Village’s tribal status. did not contest regulations these are: historical identifica incomplete and does not clear- The record is “aboriginal,” Indian” or tion as “American in arguments that AMP made ly reveal the 83.7(a); However, 25 C.F.R. historical habitation party superior § neither the could court. particular community, a 7(b); area or id. 83.- anticipated easily § the standards have political author historical influence or adopt proving this court would status. Given members, 83.7(c); ity id. over established importance § issue though necessarily governing written provide remand to presented, I Ste- would criteria, procedures and membership id. opportunity prove vens its historical tribal 83.7(d); consisting and a membership pri § status under the stan- marily of descendants of a histori distinct dards set forth above. cal tribe members of other North 83.7(e) (f). American tribe. Id. These & § requirements essentially track the Monto IV. definition, ya with the requirement added element that each have existed of the test be shown agree I As with the court stated earlier historically.10 In Price v. Ha any express never been fed- that there has waii, (9th Cir.1985) 764 F.2d recognition of Alaska Native eral as tribes for employed Ninth Circuit these factors immuni- purposes determining tribal purposes status for equally it is clear that ty. Con- jurisdiction federal court under 28 U.S.C. gress expressly denied has never § villages. The immunity to these unfortu- inescapable fact is that nate but has an provide the BIA standards my view defining steadfastly avoided the extent determining whether test for appropriate an eign sovereignty in Alaska. and limits of Native Illustrative of sover- purposes is a tribe for entity this fact are the recent immunity. I not unmindful am ANCSA, “1991” amendments Congress developed with these factors were fact that declared, provision of this “[N]o of Indi- and characteristics experiences on, to, any deny confer or Act shall ... Native There- lower 48 states mind. ans in the fore, organization any degree of sover- merely as view these factors I would eign authority lands governmental over ... accom- may be tailored to guidelines persons in Alaska....” Alaska Native or unique history and circumstanc- modate the Act Amendments Claims Settlement 1987, Thus our groups in Alaska. es of Native 2(8)(B), Pub.L. No. § factors courts should consider trial that 1788, 1789 See also id. Stat. determining wheth- may be relevant 17(a), Report 1814. The Senate 101 Stat. § group Alaska Native particular er a on the bill stated: tribal status.11 proved its It is the Committee’s clear intent that argues AMP parties this issue, in the did not because it did not bill leave proof meet its exactly burden same status ifas present any evidence of were not amendments enacted. historical tribal Obviously legislation corporations al equal no IRA section 16 to treat Alaska Natives on an See, but this is not to such basis with in the existed before fatal Indians lower 48 states. Act, showing e.g., corporation’s sov- of historical tribal Indian Self-Determination 25 U.S.C.A. 450b(b) (1983) (definition ereignty. The framework of a tribal of tribe includes an change village may regional village ment or even ex- dissolve without cor- poration pursuant ANCSA); tinguishing sovereign immunity. public established “The Indi- Act, Financing 1452(c) (1983) policy exempted dependent well as 25 U.S.C.A. § (same); sovereignties Child without Welfare the dominant suit 25 U.S.C.A. (definition 1903(8) (1983) dis- of tribe consent continues even includes after government.’’ Fidelity, the tribal Alaska Native as defined in solution 43 U.S.C. 1602(c)); 60 S.Ct. at L.Ed. at Indian Tribal Governmental Tax added; omitted). (emphasis 7701(a)(40)(A) Status (Supp. footnote 26 U.S.C.A. 898-99 1988) (definition of tribe includes Alaska Native 11. This view of the of Native vil- Secretary entities whom of the Interior lages in feder- is consistent with a decided trend functions). exercising governmental deems to be is an should left to This issue which applicable in interpreting courts law play that these amendments should procedural role such

no substantive

court decisions. Cong., 1st

S.Rep. No. 100th Sess. Cong. U.S.Code & Admin.News

1988, pp.

Thus, appears has cho- courts on to abdicate to the this issue.

sen any express

In the absence of federal rec-

ognition waiver court is to follow the bound common principles

law Supreme my

announced Court. opinion the court’s fails to

view do this. JANES, individually,

Richard and as representative, Appellant,

class

OTIS ENGINEERING

CORPORATION, Appellee.

No. S-1665. of Alaska. 3, 1988.

June

Rehearing Denied June

Case Details

Case Name: Native Village of Stevens v. Alaska Management & Planning

Court Name: Alaska Supreme Court

Date Published: May 20, 1988

Citation: 757 P.2d 32

Docket Number: S-1345

Court Abbreviation: Alaska