On Friday the Alaska Supreme court agreed with a lower court and upheld Alaska tribal government sovereignty. The attorney who argued the failed challenge says such tribal immunity doesn’t legally exist.
The case was brought by a contractor, Michael McCrary against the Ivanof Bay Village tribe and its president Ed Shangin. McCrary attempted to sue over disputed contract funds and the superior court dismissed the suit based on the Ivanof Bay Village tribe’s sovereign immunity. Federal, state and tribal governments can claim sovereign immunity from lawsuits. McCrary appealed the sovereignty ruling, arguing that Ivanof Bay Village is not really a federally recognized tribe. Heather Kendall Miller defended the tribe.
“And the court rejected that. Said, look, we’ve got all these cases from the federal court affirming tribal recognition by secretary, we’ve got congress likewise, affirming that authority and you’ve given us no basis for changing out views in John V Baker that federal recognition of tribes in Alaska has occurred,” Kendall-Miller said.
Kendall Miller says the John V Baker decision from the Alaska Supreme Court in 1999 was the first that fully recognized the autonomy of tribal governments to manage issues with tribal members and affirmed government to government authority between tribes and the federal government.
McCrary’s attorney Don Mitchell thinks Alaska’s high court got it wrong in John V Baker and tried to use that decision in the McCrary lawsuit.
“Obviously it is not interested in revisiting the question of whether they got it right in 1999,” Mitchell said.
Mitchell has long contended that Alaska tribes do not have legitimate federal recognition because in 1994 when Interior Assistant Secretary for Indian Affairs Ada Deer gave 229 tribes here recognition, he says she did not have the authority to do so. A year later Congress passed the statute- the federally recognized Indian Tribe List Act.
State Supreme Court justices referenced the list act in the John V Baker case when it affirmed tribal authority. Mitchell says because the actual statute passed a year after Alaska tribes were given federal recognition, it leaves that acknowledgement in question. He says the only way for what he considers legal gray area to be cleared up is for the U.S. Supreme court to decide the legitimacy of federal recognition for Alaska tribal governments.
“Or until such time congress passes a law that makes it absolutely clear that Congress believes that there should be 200 Indian tribes in Alaska, each of which has sovereign immunity. But until either of those things happen, either US Supreme court rules or until Congress does something that is clear, I think that these kinds of situations will continue to present themselves in Alaska,” Mitchell said.
As it stands currently however, Tribal government legal status has been clearly upheld by the state supreme court in two decisions. Mr. McCrary has no other recourse in the state court system. His attorney Don Mitchell says there’s been no discussion yet about whether to ask the U.S. Supreme court to review the decision.
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Lori Townsend is the chief editor, senior vice president of journalism and senior host for Alaska Public Media. You can send her news tips and program ideas for Talk of Alaska and Alaska Insight at ltownsend@alaskapublic.org or call 907-550-8452. Read more about Lori here.
