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Two tribes and Alaska governor at odds over tribal sovereignty

Two tribes say that Gov. Mike Dunleavy and his administration aren’t doing enough to consult with their leaders on big issues facing the state. The previous administration made it state policy to consult with tribal entities on a government-to-government basis, which is standard practice at the federal level. But while Dunleavy acknowledges the policy, he’s unclear about how it would apply.

The Orutsararmiut Native Council in Bethel sent letters to three state agencies: the Alaska Department of Natural Resources, Alaska Department of Environmental Conservation, and Alaska Department of Fish and Game, asking for government-to-government consultation on the permitting process for the proposed Donlin gold mine. The agency commissioners, all appointed by Gov. Dunleavy, said no.

"I was shocked. I couldn’t believe they were denying our request and it was like another shutdown to our voices," said Mary Matthias, ONC’s natural resources director.

In a letter to ONC, the commissioners said that they want to treat all Alaskans fairly. In this case, they say that government-to-government consultation is a federal process, and is not applicable to state permitting. The Dunleavy administration also refused to consult with the Chilkat Indian Village over the proposed Palmer Project, a mineral exploration effort. In a press conference earlier this week, Dunleavy said that he is willing to use the government-to-government process only if it leads to an “absolute” outcome.

"My wife and my children are tribal members. I have a lot of friends who are tribal members. We’re going to be sitting down with various stakeholder groups associated with rural Alaska. We want to have genuine conversations, though, that move us from point A to point B. We just don’t want to have conversations for the sake of conversations," Dunleavy said.

Alaska Native tribes are a form of government that’s recognized at the federal level as having sovereignty over certain matters. But Alaska, like many states, is sometimes reluctant to accept tribal authority.

In 2018, then-Governor Bill Walker issued an administrative order saying that the state must deal with tribes on a government-to-government basis when tackling issues that impact them. That order has not been rescinded by the Dunleavy administration. Walker’s administrative order is one step in a decades-long debate over tribal sovereignty in Alaska.

"Alaska as a state government and its approach to tribal sovereignty is really, unfortunately, it breaks down to political choices by past governors and past legislators, [or rather] Legislatures," said Matthew Newman,  a staff attorney for the Native American Rights Fund.

In the 1990s, the U.S. Department of the Interior formally recognized 229 Alaska Native tribes. Newman says that several court decisions have recognized tribal jurisdiction in Alaska.

"The universal answer every time is Alaska Tribes are indeed tribal sovereigns in the same sense that the Navajo Nation, the Cherokee Nation, or any other tribal nation in the Lower 48 is a tribe," Newman said.

But tribal sovereignty is not enshrined in state law or the Alaska constitution. That leaves a lot of uncertainty over how the state will interact with tribes, and the political whiplash makes it harder for tribes to address problems and move forward with solutions. Kendra Kloster is the executive director with the nonprofit group Native Peoples Action, and a member of the Tlingit and Haida tribe. She says that every time a new governor steps into office, tribes must play defense.

"We’re constantly defending and trying to make people understand that Alaska Natives have been here; we’ve been stewards of this land. Every four years we might have to be doing that education part of it," Kloster said.

Kloster says that government-to-government consultation should be standard in Alaska, especially when dealing with major projects like the proposed Donlin gold mine.

Dunleavy has repeatedly said that he understands rural Alaskan issues, including tribal sovereignty. Kloster says that just because Dunleavy’s wife and daughters are Alaska Native tribal members, that doesn’t give him a buy-in with the community or an automatic understanding of how tribal government works.

"I feel like he's been using his wife, saying that 'I understand, I understand,' but clearly he does not or he's not listening. He's not responding to people, he's refusing to work with tribes; this is very concerning," Kloster said.

Back in Bethel, ONC says that their letter shows that they and Dunleavy want the same thing: an absolute outcome. But in this case, the desirable outcomes differ: ONC doesn’t want the proposed gold mine, and Dunleavy supports it.

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