The Noatak Decision

This opinion article was published in the Anchorage Daily News in July 1991

When the U.S. Supreme Court decided the case of Blatchford v. Native Village of Noatak on June 24th, everyone lost. The Court ruled in favor of the State of Alaska and against the Native villages who had tried to sue the State in federal court over a question of state aid to tribal councils. But in fact, the parties all lost years earlier when they decided to leave to the courts the resolution of vital public policy problems.

The Noatak case has only minor importance among the bigger issues of Alaska Native sovereignty. The Court held that tribes, along with everyone else, may not sue states for money damages in federal courts. Tribes may still sue in federal court for other relief and may still sue for any available relief in state courts. The case did not say whether Alaskan Native villages are tribes and did not say what powers they would have if they were tribes. In short, after years of litigation, the case resolved very little of importance to Alaska. What it did do along with every other piece of sovereignty litigation that has been brought in Alaska was to drive the parties even farther apart, harden their positions, and leave public policy decisions up to the judiciary, the branch of government poorest equipped to handle them.

The issues surrounding Native village government are complex and far-reaching. They affect all rural Alaskans and even most urban Alaskans. To resolve the conundrum of self-government for Native villagers in a state with almost no reservations and no treaties defining Native rights requires a comprehensive balancing of the interests of the entire public to achieve the maximum good for all. That is precisely the task for which the legislative and executive branches are equipped, but the judiciary is not. The litigation process drives people apart, not toward consensus. The courts are not intended to balance competing interests in order to maximize the public good; their role is to apply the law and to declare a winner and a loser. And while the courts are designed to apply legal precedents in order to resolve conflicts, there are few helpful precedents in Alaska Native law. So it is little wonder that in, ten years of litigation over Native sovereignty, we are only beginning to get judicial answers to the central questions. The fact that we are sending our sovereignty disputes to the courts for resolution, instead of using other means, is prime evidence of our collective lack of wisdom.

What Alaska needs now is a forum within which the various sides on this issue can search for common ground, not joust over disparate positions. Alaska needs a forum within which each side can recognize the validity of the other's concerns. The State needs to recognize that Native villagers who are remote from state services, feel powerless over local problems, and who see traditional cultural values crumbling as a result, need the legal ability to control their own affairs. Sovereignty advocates need to recognize that some regulatory authority, such as power over fish and game, must be exercised statewide or areawide to be effective, and that it is fundamentally unjust to subject a non-Native in a rural village to laws in whose creation he has no vote.

We have had several such opportunities in the past. Almost a decade ago the state created a Task Force on Federal-State-Tribal Relations. Earlier, the Alaska Statehood Commission studied the same issues. Two years ago, Congress authorized a new federal-state panel, but the federal members have not been appointed and the panel has never met. The past efforts failed to achieve positive results because they sank into a debate on the legal status of Alaskan Natives, where advocates repeated the same arguments being urged in the courts today. Instead, we need a debate which focuses entirely on the current problems of Alaskan Natives and on ways to solve them which maximize the benefits and minimize the disadvantages to everyone. The first step is to put aside the current state of the law, perhaps even prohibit the lawyers from debating the legal points. Once the parties have found common ground on proposed policies which maximize the benefit to the entire public, we can look for ways to encourage Congress or the legislature to enact the consensus into positive law.

Achieving results in this manner will not be easy. There are many ways to derail an effort at positive consensus-building. But now, there is literally no ongoing effort to achieve such a result. Unless Alaskans make the effort, the entire problem will be left to the courts to decide. And in the courts, one side always loses, and sometimes both.