Courts vs. Native Alaskans: the 'Last Indian War'

Kenneth Frank, a member of the Gwich'in tribe in Arctic Village, Alaska, tells the legend of the giant who took over the fishing hole. One of his enemies ran to the far side of the frozen lake and called like a chickadee, knowing the giant feared the bird. Hearing the call, the giant fled in such a rush that he tripped, and his enemies killed him. All because of a tiny bird that thrives in arctic winters.

The Gwich'ins of Arctic Village (population 150) and Venetie (population 300) are fighting an ongoing battle that their attorney, Heather Kendall-Miller, calls "the last Indian war." Late last month they experienced a disturbing setback from the nation's highest court.

Using state and federal funds, the Native Alaskans built a school in Venetie a decade ago and wanted to tax the contractor for using their roads and water, just as towns tax businesses on their land. But the state of Alaska sued, saying the tribe had no authority to collect taxes. The case centered on whether the tribe has the power to govern activities on the land it owns.

This "chickadee's call" was seen by the state's lawyers as threatening its business, legal, environmental, judicial, and policing authority. They said if the tribe prevailed, it would mean separate, sovereign governments in 226 tribal villages, with more than 70,000 residents.

One main question drew the attention of the US Supreme Court: Does Alaska's territory embrace "Indian Country," land similar to reservations where native people retain much of their ancient sovereignty and can make their own laws? The US Ninth Circuit Court of Appeals said it does. The Supreme Court, however, ruled that native Alaskans do not have the same rights as Indians in the lower 48 with regard to native lands - that laws passed in the 1970s somehow silently took those rights away.

Indian law experts deride the unanimous decision written by Justice Clarence Thomas for ignoring the judicial precedent that Congress, as the trustee for all Indian tribes, cannot extinguish any tribal rights without explanation of what it is doing and why. "The clear message to tribes everywhere is that we're in a very scary, scary political time," Ms. Kendall-Miller says.

It's hard to imagine what powers the state wants over these remote villages. Flying state troopers in to resolve disputes is costly, time consuming, and rare. Disputes rage over who has the right to enforce fishing, hunting, and environmental regulations, with the state predicting that, left on their own, the Indians would ruin their resources. Ten thousand years of tribal history indicate otherwise.

Already, chaos has surfaced as a result of the ruling. The state attorney general is asking the state supreme court if the state should recognize tribal domestic violence protection orders. (Under federal law, states recognize such tribal orders, but it is unclear now if this applies to Alaskan tribes.)

Native Alaskans will be taking their cause to Congress, to push for bills clarifying Indian Country law and the rights of sovereign tribes. Gideon James, a council member of the native Village of Venetie Tribal Government, is traveling to Geneva in a few weeks to join a UN working group on indigenous people in an attempt to find justice for the tiny Gwich'in tribe through international circles.

"It's a basic principle that self-determination is a fundamental human right," Kendall-Miller said. "There's no expression of true self-determination when indigenous people are forced to have to deal with the laws of the colonizing power."

The 1.8 million acres the Gwich'in own outright does not feel like a place to colonize, a land of opportunity where anyone would need to care about taxes on outsiders. The school-construction tax that started the court battle wasn't exorbitant, about 5 percent. But the non-native legislators in Juneau seem to assume that, given the power, the Indians would treat everyone else as shoddily as, historically, policymakers have treated the Indians.

Venetie and Arctic Village are not places one visits without good reason - there's no place to stay. Arctic Village, the northernmost Indian community in the US, is about an hour's flight over empty mountains. The high ridges, sky, rooftops, streets, and chimney smoke are all varying shades of bluish white. Outsiders flying into native villages have complained when local officials search their bags without probable cause, but the villagers believe this is necessary to keep their communities free of alcohol and smugglers.

The tribe will continue on as it has for millennia, without much change, despite the ruling of nine justices on the other side of the continent who favor the "giant" who wants to keep the "fishing hole" to himself. The Gwich'in will continue hunting caribou and using everything but the antlers, which often hang above doorways.

In his home, Mr. Frank displays a fist-shaped maroon object - the delicate, translucent lining of a caribou heart, used to carry bits of fat from ground squirrels and other small game, which villagers need in their winter diet. It is usually soft and malleable from the grease, he explains, but it feels light and brittle now. Fragile, like the traditions behind it.

* Tina Kelley is a freelance writer in Seattle.