Alaska ex rel. Yukon Flats School District v. Native Village of Venetie Tribal Government

The Native Village of Venetie Tribal Government appeals the district court’s determination that the Alaska Native Claims Settlement Act extinguished Indian country in Alaska, and that the tribal government therefore lacks the authority to impose its Business Activities Tax upon a state contractor. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse the district court’s judgment. We conclude that the Alaska Native Claims Settlement Act did not extinguish Indian country in Alaska as a general matter, and that the land Venetie occupies is Indian country.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from Venetie’s attempt to impose its Business Activities Tax upon the Neeser Construction Company, which had been hired by the State of Alaska to build a new school in the village.

The Neets’aii Gwieh’in — from whom nearly all of the inhabitants of Venetie descend — are a group of Alaska Natives that has historically inhabited an area consisting of the East Fork of the Chandalar River. In 1940, the Neets’aii Gwich’in adopted a constitution under the Indian Reorganization Act, 25 U.S.C. § 476 . This constitution established the Native Village of Venetie as…

concurring:

Because judges are historically minded and experts at analogical reasoning, it is very tempting to treat ANCSA as just another statute to be adjudged as if it were a mere continuation of prior Indian policy. A continuation, that is, if that policy can really be called continuous. But ANCSA was intended to be and was something very different. It attempted to preserve Indian tribes, but simultaneously attempted to sever them from the land; it attempted to leave them as sovereign entities for some purposes, but as sovereigns without territorial reach. Thus, the land and the vast sums of money made available did not go to the tribes. It went into mere private corporations.

Those corporations were to be separate from the tribes, could sell land, and could even be taxable eventually, although the land could also be placed in tax-free preserves, just as anyone else’s land can be under proper circumstances. The tribes were no longer land based; they were member based. In short, Congress wanted to provide for “maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges,…