Juneau Empire Story Archive

Commerce clause means tribes must be treated as sovereign states

By Kadashan

I have always wondered about that "commerce clause" in the U.S. Constitution. It finally became clear to me when tribes in Alaska were troubled about Sen. Ted Stevens' rider in next year's appropriations bill. This measure is designed to regionalize funding to tribes in Alaska. His idea is to seep the funds through regional corporations with the idea the money would trickle to communities. Many tribal leaders assume that this is his way of extinguishing tribes; With this effort, tribal sovereignty and self governance will be threatened. He also contends that there are too many tribes in Alaska and that he cannot keep them all solvent by funding them on an individual basis.

The Alaska Federation of Natives (AFN) has been dealing with this regionalization issue for some time now; however tribal government leaders don't think AFN has the authority to do this on their behalf and that the Alaska Intertribal Council (AITC), since it was organized for that purpose, is the one organization that should position itself to better advocate on behalf of tribes. In fact, many tribal leaders were despondent when a member of the AFN staff came to the AITC Convention and gave an update of their dealings with the senator on the matter. Last month the National Congress of American Indians (NCAI) discussed this at length and adopted a resolution supporting Alaska's opposition to Stevens' riders. Their rationale was that if it happens in Alaska it could happen to tribes in the Lower 48.

The BIA funnels funds to tribes, but this was not an issue during their Providers Conference in early part of December. The week of Dec. 8-10 the AITC, the organization that represents tribal governments, had its convention and this was a copious issue as tribal leaders deliberated the problem.

David Case, an attorney and expert on Indian law, gave a presentation on Monday, the first day of the convention. He emphasized that tribes in Alaska have always been in existence - that the land claims did not extinguish tribes. So we can assume, also, that tribes will always exist.

Mr. Case also articulated the fact that Indian tribes were mentioned only once in the U.S. Constitution. The "commerce clause," indeed, did put tribes in the same category as nations and states. In other words, the federal government must treat tribes as sovereign entities. Of course, many feel this special relationship was never practiced other than the fact that "they sold us liquor, got us drunk and then took our land" as one tribal person stated.

When Ada Deer, former assistant secretary of the Department of Interior during President Clinton's administration, published in the Federal Register a list of federally recognized tribes this strengthened the relationship significantly. Now the feds would have to actually work with tribes on a government to government relationship. This is an important tool tribes can use to erase any notion that the senator, or Congress for that matter, may instigate to regionalize or do away with tribal governments in Alaska.

It was also revealed during the AITC convention that tribes are able to provide services to their tribal members much better and cheaper than if funds were to trickle from a regional corporation. Another tribal leader said that if President Bush wants to privatize many of its government programs, the way to do it with tribes is keep things under tribal control.

Tribes have experienced regionalization of funds from the old way the BIA functioned. In the early 1990s the Self Governance Demonstration Project corrected that. Since it became permanent in 1994 the BIA has been turning more of its programs, functions, services and activities to tribes.

Yes, I think the "commerce clause" and the recognized tribal government list in the Federal Register go hand in hand. If Senator Stevens wants to take away that special relationship tribes benefit from the federal government, he is going to have to repeal, by amendment, Article 1, Section 8, paragraph 3 of the U.S. Constitution.

A senator, all by his lonesome, cannot do that.

To amend the U.S. Constitution the proposal will have to be passed by both houses and then ratified by two thirds of the states.

A humongous task, indeed.

• Kadashan is the Tlingit name of Bertrand J. Adams Sr., who lives in Yakutat.

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