Sisseton Wahpeton College on the Lake Traverse Reservation in Sisseton, South Dakota. Photo: Angela Smith

Federal Recognition | Law | Opinion | Politics | Trust

Donovan White: Alaska Native villages are Indian tribes. ANC Corporations are Not.

Monday, April 20, 2020

By Donovan White

Chairman, Sisseton Wahpeton Oyate

The Seven Council Fires—Oceti Sakowin—of our Dakota, Lakota, and Nakota nations always stand up for our lands and treaties.

As Indian nations, we maintain self-government and self-determination. Indian lands are the cornerstone of jurisdiction, and our Tribal government status. Self-defense is the cornerstone of sovereignty.

Right now, we must defend ourselves against Assistant Secretary for Indian Affairs Tara Sweeney’s plan to divert funds from Tribal Governments to Alaska Native Corporations (“ANC”), which are state for-profit corporations. Sweeney’s plan is contrary to law.

The Federally Recognized Indian Tribes List Act says: "the list of federally recognized tribes which the Secretary publishes should reflect all of the federally recognized Indian tribes in the United States which are eligible for the special programs and services provided by the United States to Indians because of their status as Indians."

Donovan White serves as chairman of the Sisseton Wahpeton Oyate, an Indian nation with homelands in present-day South Dakota and North Dakota. Courtesy photo

On January 30, 2020, ASIA Sweeney, acting on behalf of the Secretary of the Interior, published the Federal government’s annual list of federally-recognized Indian Tribes. Alaska Native villages are on the list because they are “Indian tribes.”

ANCs are not listed as Federally Recognized Indian tribes because ANCs are for-profit state corporations, not Indian tribes or Tribal Governments. ANCs have 45,000 employees: 27% in Alaska and 73% worldwide. ANC employees in Middle East and Southeast Asia count for Coronavirus Relief Funding under Sweeney’s plan. Congress didn’t intend that.

From the start, ANCs rejected sovereign status as Indian tribes. In the late 1960s, when oil companies sought to build pipelines across Alaska, Interior Secretary Stewart Udall “froze” oil pipeline construction by requiring settlement of aboriginal land claims. In 1971, the Alaska Native Claims Settlement Act (ANCSA), included $1 Billion cash settlement ($6.4 Billion today’s value) and a 45 million acre settlement in fee land subject to state taxation and jurisdiction (worth $45 Billion today).

In ANCSA, Congress rejected “racially defined institutions” of the lower-48 states and our “reservation system.” The “racially defined ethnic institution” reference is contrary to the U.S. Constitution and our treaties, and it is an insult to our Native Nations. Congress should strike the reference from U.S. Public Laws, just as it did for the word “Oriental,” because it is an ethnic slur.

ANCSA Regional Association explains: “ANCSA extinguished aboriginal land claims in Alaska and mandated a for-profit model with land title under corporate ownership.” ANCSA Regional Association board of directors are the presidents and CEOs of ANC regional corporations. The Association states:

Unlike in the lower-48 states where the reservation system was the norm, ANCSA departed significantly—it was not based on the reservation system, tribal sovereignty within a reservation, or a government-to-government relationship between a tribe and the federal government. Instead, ANCSA’s foundation was in Alaska Native corporate ownership.

The ANCs acknowledge that they are not sovereigns and do not have a government-to-government relationship with the United States. They are for-profit corporations.

The CARES Act references the definition of “Indian tribe” in 25 U.S.C. § 5304(e). It dates to 1975. ANCs are not federally-recognized Indian tribes under the second-prong of the definition: “recognized as eligible for the programs and services that the United States provides to Indian tribes based upon their status as Indians.”

The same statutory language was also used by Congress for the Federally Recognized Tribe List Act. Sweeney reads the first part of the Indian tribe definition to obscure its meaning. The law also references “organized group” in the first part of the definition of “Indian tribe,” but the Secretary only recognizes “groups … eligible for the special programs … provided by the United States to Indians….” Otherwise, every state corporation in America would be eligible.

An investigation by https://t.co/0yYFAWzrcJ shows the White House was one of the first recipients of sensitive #Coronavirus data on nearly 700 tribes and Native entities. #COVID19 #CoronavirusReliefFund #CoronavirusLeak #CARESAct #CARESActDataBreach https://t.co/bkfpkZmmIa
— indianz.com (@indianz) April 20, 2020

To count the ANCs in our State-Local-Tribal Government Coronavirus Relief Fund would be double or triple counting because Regional Corporate shareholders are also Native Village Corporate shareholders and also Alaska Native village tribal members.

Sweeney seeks to “shoehorn” ANC corporate fee land into the CARES Act. The Supreme Court held: ANCSA corporate fee lands are not Indian lands in Alaska v. Native Village of Venetie, 522 U.S. 502 (1998).

To count the ANC corporate fee lands is contrary to law, and again results in double counting. The ANC fee lands are under state authority—the State of Alaska gets funding from Congress under the Coronavirus Relief Fund for its lands, including ANC fee lands.

The Constitution recognizes our Indian nations through the Treaty and Indian Commerce Clauses. Our tribal citizens (members) are recognized in the Constitution as “Indians not taxed.”

By using the Federally Recognized Indian Tribe List Act for funding, Congress can stop Bureau of Indian Affairs' disrespect for Indian nations, our citizens and our Indian lands.

Donovan White serves as chairman of the Sisseton Wahpeton Oyate, an Indian nation with homelands in South Dakota and North Dakota.