Self-Governance

by Sara Bioff

During my 2023 summer internship at Kawerak, a non-profit organization in Nome, Alaska, my mentor showed me the power of knowledge and creative thinking in the legal field. An immense portion of my time was spent working on Youth Court, a program that is customarily led by youth to arrange peace-making circles for other youth who have been involved in offenses such as misdemeanors. In doing so, they have the opportunity for restorative justice instead of resorting to the punitive alternative. I coordinated with family and Tribal Council members to be invited to the circle, with the goal to be present for the offender. In the circle, each member would communicate how they want to help the youth, and the youth is invited to share their thoughts at any moment. When each member reflects, they demonstrate to the kid that they are at the circle to support them. Near the end of the trial, the participants discuss what would be an appropriate act of service for them to do as a sentence. This is where creativity plays a crucial role. The typical sentence is based on the interest of the youth. For example, if they enjoyed subsistence, they could catch fish for elders and help provide for them.

The ability to create a unique system that is tribally led is a reflection of self-governance. Tribal legal systems of justice were created with the understanding of the power they held. It first started with a question such as, to what extent could they help the youth in their communities with a new way of justice? The question acknowledges that there are systems in place that have not been historically the way of operating, and it creates room to be creative in envisioning new, helpful systems. Understanding the boundaries of self-governance involves examining how far a system can extend in the predominant system it already exists in, which in this case is the United States government. I aim to use self-governance to show the significance of history in areas that lead to the development of new governmental structures in Alaska, the different legal practices that achieved those structures, and the various outcomes it has produced. In analyzing those features, with the understanding that I am writing this paper for future Perspectives in Native American Studies students, I hope to remind them of the power they hold with knowledge bearing and creative thinking.

Before one can reimagine a system, it is important to understand its historical development. Self-governance is an evolving concept, which was initiated by the identification of Native Nations in the Constitution and activated through legislation such as the Alaska Native Claims Settlement Act (ANCSA). Mark Savage researched the federal and state power that Native Americans were granted in the United States Constitution. The Constitution states that Native Americans are “domestic dependent nations,” are not foreign or with other states, but rather hold a tertiary status (Savage 1991:60-61). This details that Native American Tribes are separate entities from the United States and foreign nations, but they are third in power. The United States occupies plenary, or absolute power, over Tribes (Savage 1991:61).

There was a lack of representation within the overall Constitution for Indigenous peoples, and the editors were decisive for when to incorporate such representation to Native Americans. This is exemplified with the Three-Fifths Clause. Initially, the first few drafts included the exception of taxing Native Americans but was later changed to those who were not citizens of the state (Savage 1991:65). Representation holds power. If Native Americans were mentioned, it would then give future opportunities for argumentation and interpretation of their standing. The argumentation comes from future students, such as the ones reading this document. Interpreting documents is a form of power that produces change within systems, by challenging their representations of Native Americans. The Constitution was not the beginning of the United States and Native Americans’ relationship, but it was one of the earliest documents that the United States heavily references in every aspect that discusses the power Native Americans can wield.

With the lack of clarification in the Constitution, Alaska Natives sought the acknowledgment of aboriginal rights. In 1971, the Alaska Native Claims Settlement Act (ANCSA) was passed (McCarrey 2017:437). The document denoted the boundaries of the United States government with Alaska Native Tribes. The argument was that Alaska Native Tribes hold an inherent right to self-governance due to the fact that they have done so for time immemorial (McCarrey 2017:439). Time-immemorial references to the idea that Tribes established their own way of governance long before the United States government colonized them. The title that Alaska Tribes possessed before ANCSA had not officially declared the status and powers that they held. There were other mentions and representations of the Tribes via the Organic Act that observed territorial rights for Tribes or the Alaska Statehood Act in 1958 that, again, declared the federal government as having absolute power over the land in Alaska (McCarrey 2017:442). Though all had partial representation of Alaska Tribes, they mainly focused on United States power over them. The main purpose of ANCSA was to officially declare the status of Alaska Native Tribes in areas of land distribution, titleship, funding, and organization (McCarrey 2017:444-445).

The Alaska Native Claims Settlement Act achieved great controversial and structural change within the State with the implementation of thirteen corporations representing geographical locations in Alaska (McCarrey 2017:445). This put the focus on the organization of Alaska Tribes. Each corporation represents the Tribes within the region, instead of the reservations system as seen in the contiguous United States, because of the greater number of Tribes. Each corporation receives funding from the federal government, that in part also goes to shareholders as well (McCarrey 2017:445). The birth of this document changed the way of operation and opportunities for Alaska Natives because of the institutions created out of it. Through my internship, I had the opportunity to witness how they operate by working for a non-profit organization that provides services for the twenty tribes in the Bering Strait Region.

My internship is representative of an outcome from ANCSA; by figuring out the system, leaders such as my supervisor were able to get funding for internships within the non-profit organization to expand restorative justice work in Tribal courts. Branches of self-governance are able to operate under documents that establish them power with law strategy and unique governmental models. With ANCSA, the federal government established the structural system that the tribes of Alaska must hold itself to, but that system was challenged recently with the Coronavirus Aid, Relief, and Economic Strategy (CARES) fund during the pandemic. Self-governance grants Tribes the right to organize their healthcare assistance, especially through funding; however, it was challenged whether Alaska Tribes can be under the same definition as “Indian Tribes” (Huhndorf 2022:2). Essentially, the structures given to Alaska Tribes by the federal government were then challenged by them as well, showing the importance of representational wording and their consequences. The system of the Tribes was challenged, but with deeper conceptualization, it is also prevalent that the identities of Tribes were challenged. When reviewing the arguments of the United States, it is beneficial to critically analyze what they are challenging. Students in any field of Native and Indigenous Studies should understand the impacts of the claims and the messages that are being challenged against Tribes, especially pertaining to the systems that they run. An outcome could be as severe as funding for healthcare. It is deeper than the system, it is the challenge of sovereignty rights.

Along with critical thinking, the tools that are used in law for the governmental systems are distinctive. Who gets to manage funding is determined by ANCSA, but the idea of contracting programs for self-governance became prevalent in 1975 with the Indian Self-Determination and Education Assistance Act (Delaney 2016:309). Contracting is a binding agreement for the federal government to pass contracted programs to the Alaska Tribes to manage, such as healthcare (Delaney 216:309). One of the greatest strategies that my community had during the pandemic was the ability to govern and give elders proper care. Though the governmental structures in Alaska and Tribes in the contiguous United States were challenged against each other with CARES funding, I believe there is strength in unity. Both Reservation Tribes and Alaska Tribes can, and have, been used to strengthen their ideas together with utilizing their own method of tools in law. In Navajo Courts and Navajo Common law, Raymond D. Austin describes his tribe's integration of their beliefs into their way of law through stories. He states that Navajo stories can relate all across the globe with Indigenous people because they tell the same lessons of colonization (Austin 2009:XViii). The history is similar, the only difference is the manifestation of specific needs within the Tribes.

The resources that Tribes have are then brought through institutions that were created from ANCSA. In Alaska the production of the North Slope Borough was created for three reasons; defending Native subsistence rights, distributing public goods, and enriching cultural identity (McBeath and Morehouse 1980:88-93). The different creative institutions that Tribes have worked to create are managed for a specific outcome, but in a way that is limited. Adrienne Davidson in “Regional Governance Without Self-government: dynamism and change in the North American Arctic” discussed the problem that corporations are “weak units of governance” that lead to jurisdictional tensions (Davidson 2015:75). She argues that corporations were used to bring Alaska Natives to the “modern market economy” rather than allowing them to form in their own traditional practices (Davidson 2015:75). With the practice of contracting for institutions such as the North Slope Borough or the healthcare system, it could be argued that Tribes are working to speak the language of the Federal government. This relates back to the idea that the federal government has the status of absolute power in the Constitution that forces Tribes to use their system. Challenging the grounds that institutions were built brings the discussion to whether they are then producing services that are in the best interest for Alaska Tribes or whether the institutions created from ANCSA are a response to the overriding power. What would the structure of self-governance look like today without ANCSA? With a keyword, for those in the future who will do this assignment, challenge the concept of it and whether it is a word that Tribes themselves would have used before the colonization of their structures.

Does the system that has been determined for Alaska Tribes work? After examining the different tools, documents, and goals of establishing self-governments, consider if these systems should still be in place. To delve into that question, I will look at examples of self-governance in Alaska that deal with accommodations uniquely intertwined within the state, the authority structures that run them, and the healthcare system. A Harvard Project in the 1980s studied the components of what sustains and grows economic development using Alaska’s self-governance, specifically with delivery services (Kalt 2003:12). It was found that effectiveness was more important than efficiency for providing delivery services to rural areas of Alaska with three key rules to keep the institutions stable: self-rule (decision-making in the hands of the Tribes), capable governing institutions, and cultural match (the ability to resonate with indigenous culture to harness trust) (Kalt 2003:13-16). Resources are the reality of maintaining and supplying the Tribes of the State. Due to the unique ruralness that many tribes are living in, providing resources then falls into the hands of the consortiums to use their self-governance delivery services to carry out the demands.

This is particularly important in healthcare as discussed previously. The Alaska Native Corporations (ANC) are responsible for administering healthcare services across the state (Watson 2022:19). This became imperative with the vaccine distribution during the pandemic. The Southcentral Foundation President said that the ability to distribute vaccines smoothly was hugely due to the community-healthcare model (Watson 2022:16). This does not only relate to healthcare, distinguishing how to properly distribute resources can take form in a variety of different ways. Depending on the resource, it is up to the Tribes to decide what institutions should be involved in the process of organizing those needs across the state. Should the authority be regional, local, or statewide? (Fischer 1999:96). Resource services, such as delivery and healthcare, are unique examples of self-governance that are crucial for maintaining sustainable communities within the state by figuring out effectiveness strategies.

Prior to ANCSA and the United States, Tribal citizens had the opportunity to freely subsist, before the implementation of Fish and Game. The way of life of Indigenous communities have been affected through the elimination of self-sustaining activities and thus brings them to rely on resources outside of the land. This demonstrates a dependent relationship with the United States that then causes Tribes to use these systems put in place. So, the resources that institutions provide may work, but that is because they must. The real consideration is whether these systems are morally right for the Tribes to use. The implementation of them were grounded in colonization and their services are products of it. Tribes are then working to be creative in the system that was enacted to them.

During my internship, I created unforgettable memories while I traveled to villages and connected with Tribal Council members. I received experience for the future of what I could with a career in law. It was bitter-sweet because I knew that I was operating under a system that was not historically in the best interest for Tribes; however, I also felt an overwhelming sense of excitement. My supervisor taught me about the United States Judicial system and Tribal courts. With each piece of knowledge I learned, a question of its boundaries emerged in my head. How can we expand the power of this to represent the needs of the Tribes? Learning about the systems and documents that produce growth toward self-governance can then lead to expansion of creative thinking. Having the historical perspective provides context to how Indigenous people are thought of by the United States, which determines the power that Tribes are allotted. These systems are then carried out through services by institutions governed by Tribes. The Tribes have the authority to distinguish what power and funding goes to what programs through means such as contracting. The power of Tribal governance can be as wide-ranging as the self-government relationship with the United States, to the internship I did over the summer for Tribal courts. When thinking about your keyword or any future in Tribal work, understand that knowledge is power, and with power, creativity is just as important.

Works Cited

Austin, Raymond Darrel. Navajo courts and Navajo common law: A tradition of tribal self-governance. U of Minnesota Press, 2009.
This source provides the history of resistance and knowledge of the Navajo Nation common law that relates to self-governance. With this source, I analyzed law and practices outside of Alaska. I explored both the experience of Alaska Native Tribes and others, such as the Navajo Nation.

Davidson, Adrienne M. "Regional governance without self-government: dynamism and change in the North American Arctic." Arctic Yearbook (2015): 68-85.
This source focuses on the Northern Arctic region of Alaska and its self-government systems. It delves into the laws that helped these systems emerge and examines how institutional structures influence policymaking. I used this source because it analyzes regional structures that produce specific government systems.

Delaney, Danielle A. "The Master's Tools: Tribal Sovereignty and Tribal Self-Governance Contracting/Compacting." Am. Indian LJ 5 (2016): 308.
This source provides historical context by analyzing different federal law ideologies such as the Allotment, Assimilation, and Relocation eras, as well as the Indian Reorganization Act. It also delves into contracting and sovereignty. I am interested in focusing on law because I want to pursue a career in it, so this helped provide law history and tools to self-governance.

Fischer, Victor, et al. "Achieving Alaska Native Self-Governance: Toward Implementation of the Alaska Natives Commission Report." Institute of Social and Economic Research, University of Alaska (1999).

This source challenges the concept of self-governance in Alaska by evaluating the Alaska Inter-Tribal Council, Rural Alaska Community Action Program Conference of Tribes, and the Rural Governance Commision. It explores whether the idea of self-governance achieves greater goals than non-Native systems and the extents of them. I think challenging my keyword will be important to provide diverse perspectives.

Huhndorf, Shari M. "Indigeneity, Modernity, and the Alaska Native Claims Settlement Act." The Routledge Handbook of North American Indigenous Modernisms (2022).
This source takes a modern approach to analyzing the Alaska Native Claims Settlement Act (ANCSA). It presents information about the legislation that went into creating the Act and the impacts it had on events such as era of Covid-19. This source provided me with more contextual information on ANCSA as well as its impact on governance.

Kalt, Joseph P. "Alaska Native self-government and service delivery: What works?." Available at SSRN 464980 (2003).

This source focuses on governmental systems and their operations in Alaska Native tribes. The author investigates the economic strategy of location and how it affects villages outside the places that receive frequent resource deliveries. Providing a comprehensive analysis of self-governance in relation to economics, I used it to observe adaptations over time.

McBeath, Gerald A., and Thomas A. Morehouse. The dynamics of Alaska Native self-government. Lanham, MD: University Press of America, 1980.
This book is written about self-government dynamics. I explored the relationship between self-government systems in Alaska and the United States government. To analyze the relationship, I looked at the Statehood Act of Alaska. The United States and Tribes have a complex relationship that became more complicated during Statehood. I used the relationship in my keyword-project to explain how self-governmental systems are able to operate.

McCarrey, Kristin. "Alaska Natives: Possessing Inherent Rights To Self-Governance and Self-Governing From Time Immemorial To Present Day." American Indian Law Journal 2.1 (2017): 7.
This source analyzes the inherent right to self-governance through a variety of different perspectives. In doing so, the author analyzes the Alaska Native Claims Settlement Act (ANCSA), the Supreme Court holding in Alaska vs. Venetie, and the difference between Alaska Native Tribes and Reservations. I think those sources and her perspective are important to understand the rights of self-governance because of her integration of law perspectives.

Savage, Mark. "Native Americans and the Constitution: The Original Understanding." Am. Indian L. Rev. 16 (1991): 57.

This source provides historical contexts about the United States Constitution and how it affects Native American government systems. With this source, I specifically wanted to learn how the United States defined Native American Tribes. Understanding how they are defined helped my project by providing a basis of knowledge on Tribal government systems, so for my research, I was able to analyze how they run today.

Watson, Danika Elizabeth. "Healthcare Self-Governance." Am. Indian LJ 10 (2022): 1.
This source provides a look into a specific aspect of self-governance that is healthcare. Watson analyzes the rights to healthcare, Alaska Native Corporations, Tribal Health Consortiums, the Indian Health Service, and how they are applied. I think incorporating a unique system created a great example with how self-governance is used today.