Ka Wai Ola - Office of Hawaiian Affairs, Volume 15, Number 6, 1 June 1998 — A PAINFUL LESSON FROM ALASKA [ARTICLE+ILLUSTRATION]

A PAINFUL LESSON FROM ALASKA

By Carl Christensen, staff attorney with the Native Hawaiian Legal Corporation

In February, the United States Supreme Court decided an Alaska case entitled State of Alaska v. Native Village of Venetie that carries an important message for advocates of the "nation within a nation" model for Hawaiian sovereignty. Under the "nation within a nation" model, many American Indian tribes and certain other Native American peoples are formally recognized under Federal law as having a govemment-to-government relationship with the United States. Ever since the early 19th century, Indian tribes "recognized" by the United States have been regarded as retaining certain inherent sovereign powers not subject to the control of the states in whieh the tribes are located. Recognized tribes ean adopt laws governing their members and, to some extent, non-members who eome onto the reservations. Recognized tribes ean regulate land use and impose taxes within reservations and these powers are not subject to the control of the states within whieh the reservations are located unless Congress has taken that power from them and has delegated it to the states. In 1971, with the enactment of the Alaska Native Claims Settlement Act (ANCSA), Congress created a second form of "nation within a nation" for several hundred native villages in Alaska. Under ANCSA, some 44 million acres traditionally used by residents of these native villages (including land until then set aside as "reservations" for the Alaska Natives) were conveyed to "Native corporations" organized under Alaska state law and owned by the residents of the villages. These lands were owned in fee simple by the corporations and were not subject to the trust restrictions normally applicable to lands held by recognized Indian tribes. Nevertheless, the native villages were formally "recognized" by the United States, and Alaska Natives remained eligible for certain federal benefits otherwise restricted to members of federally recognized Indian tribes. Recognized Indian tribes exercise a greater

or lesser degree of governmental authority over their members and the lands within their reservations, authority generally not subject to any overriding authority of the state in whieh the reservations are located. In recent years, however, the question of whether or not Alaska Natives have this same level of autonomy from state control — including for example, the power to impose taxes on activities conducted within lands held by the native corporations — has been a matter of great controversy between the native \dllages and the government of the State of Alaska. The native villages have argued that they ean impose taxes on eeonomie activities conducted on their lands and are not themselves subject to reguIation by the State of Alaska. The state, on the other hand, has argued that the native corporations were mere private corporations having no powers greater than any other private corporations. For example, in the state's view, these corporations had no power to levy taxes or to exercise any other governmental authority. In a unanimous decision, the U.S. Supreme Court resolved this controversy in favor of the State of Alaska. The Court said that by enacting ANCSA, Congress's intention was to avoid the recognition of a trusteeship or guardian-ward relationship between the United States and Alaskan Natives. In other words, Congress did not want to duplicate a relationship that characterizes the federal relationship with recognized tribes elsewhere in the United States. The Court said native corporations are wholly eeonomie entities, and neither they, nor the native villages whose residents own them, have the power to impose taxes or to exercise other sovereign powers over their lands. The status of these native villages is no different from that of other private landowners, and they are subject to the full regulatory authority of loeal state government. All of this sounds like a jumble of legal terms and may seem of little or no interest to

Native Hawaiians. But as complex and legalistic as it is, the Alaskan dispute is surprisingly relevant to Hawaii. The Alaskan Native corporations bear an amazingly close resemblance to the "Native Hawaiian Trust Corporation" that wou!d have been created under Rep. Ed Case's Native Hawaiian Autonomy Bill. Like the Native Corporations, the NHTC would have been a creature of State law that could not exercise sovereign powers. Unlike the Native Corporations, however, the NHTC would have been subject to control by the State of Hawaii to a mueh greater degree than any private corporation. The State would have held the power to "oversee" the NHTC and would have been subject to the Hawaii State Legislature's power to amend its bylaws, or even to abolish it if the Legislature chose to do so. The fate of Native Alaskan sovereignty under ANCSA should serve as a warning to Native Hawaiians to read the fine print in any proposal to change the existing legal relationship Native Hawaiians have with the federal govemment and with the State of Hawaii. Any proposal that does not ensure the existence of some sphere of "sovereign" authority over an established land base, not subject to control or extinguishment by the State of Hawaii, is unlikely to provide any meaningful degree of long-term autonomy.

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