Nenana Fuel Co. v. Native Village of Venetie

RABINO WITZ, Chief Justice,

dissenting.

I dissent.

The superior court held that the section 16 IRA Native Village of Venetie Tribal Government possesses sovereign immunity and that this immunity had not been waived. The superior court further held that the “sue and be sued clause” of Vene-tie’s section 17 corporate charter was sufficient to waive the corporation’s sovereign immunity, but stayed further action against Venetie’s section 17 corporation requiring Nenana Fuel to first exhaust its tribal court remedies. National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845,105 S.Ct. 2447, 85 L.Ed.2d 818 (1985); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987). I would affirm the ruling of the superior court.

This court, without determining whether the Native Village of Venetie Tribal Government “actually constitutes a sovereign entity” concludes that the Remedies on Default Clause contained in the note and security agreement effects an express waiver of any sovereign immunity possessed by Venetie, in both its section 16 *1244(tribal government) and section 17 (business corporation) capacities.

In Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32, 41 (Alaska 1988) (Rabinowitz, C.J., dissenting), this court held that in the absence of express recognition of tribal status by either Congress or the executive branch of the federal government, an Indian tribe may not avail itself of sovereign immunity. See also Hydaburg Coop. Ass’n v. Hydaburg Fisheries, 826 P.2d 751, 754 (Alaska 1992) (Rabinowitz, C.J., dissenting). The court further held that organization under section 16 of the Indian Reorganization Act was not sufficient in itself to afford a village tribal council tribal status for the purpose of tribal sovereign immunity. Id. at 40. In reaching this conclusion the court reasoned:

The more controversial section 2 of the [Indian Reorganization] Act, which empowered the Secretary to create reservations in Alaska, was regarded by the Interior Department as necessary to protect the economic rights of Alaska Natives. Reservations were also thought to be a necessary precondition to native communities’ exercising local government powers under section 16 of the IRA.
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Since Stevens Village was never granted a reservation, the power of local government has never been extended to it. In our view, the mere approval of a section 16 constitution for Stevens Village by the Secretary of the Interior, which itself withholds the power of local government to the Village, does not suffice to afford the Village tribal status for the purpose of application of the doctrine of tribal sovereign immunity.

Stevens Village, 757 P.2d at 40. In the instant case, the superior court interpreted Stevens Village as indicating that where other factors are present, a section 16 IRA council may be determined to possess sovereignty and as a consequence, sovereign immunity. Nenana Fuel Co. v. Venetie, No. 4FA-87-354 Cl (Alaska Super., March 13, 1989). Examining Venetie’s history of federal relations, the superior court found the following facts to be relevant to the issue of whether Venetie had been accorded recognition by either Congress or the executive branch of the federal government:

The Native Village of Venetie was organized under the terms of the Indian Reorganization Act as amended by the Alaska Indian Reorganization Act. The Village’s constitution and bylaws were approved by the Secretary of the Interior in 1940 in accordance with § 16 of the Indian Reorganization Act, 25 U.S.C. § 476. Pursuant to Article 4 of the constitution as approved by the Secretary of the Interior, the Village had explicit powers. Included within those powers are the following: (1) “[t]o do all things for the common good which it has done or has had the right to do in the past and which are not against Federal law and such Territorial law as may apply,” and (2) “[t]o control the use by members or nonmembers of any reserve set aside by the Federal Government for the Village and to keep order in the reserve.” Clearly, these are the powers of a self-governing organization.
At the time of its incorporation under the Indian Reorganization Act, there was no reservation set aside for the inhabitants of the Venetie area. Upon application by the people of the area, on May 20, 1943, the Secretary of the Interior withdrew a 1.4 million acre reservation for the people of the native villages of Vene-tie, Arctic Village, Christian Village, and Robert’s Fish Camp. This reservation was created under § 2 of the Indian Reorganization Act. See generally Stevens Village, 757 P.2d at 40. Despite the protestations of the villagers, the Vene-tie Reservation was abolished in 1971 with the passage of the Alaska Native Claims Settlement Act. ANCSA § 19(a), 43 U.S.C. § 1618(a). Pursuant to the terms of § 19(b), 43 U.S.C. § 1618(b), the village corporations within the former Venetie Reservation elected to acquire title to the surface and subsurface estates of the reserve. When title was acquired, the land was deeded to the *1245Native Village of Venetie Tribal Government. The court concludes that the termination of the reservation under ANC-SA did not abolish the sovereign immunity previously held by the Venetie IRA organization. See generally DeCouteau [sic] v. District County Court, 420 U.S. 425, 442-44 [95 S.Ct. 1082, 1091-93, 43 . L.Ed.2d 300] (1975); Menominee Tribe of Indians v. United States, 391 U.S. 404 [88 S.Ct. 1705, 20 L.Ed.2d 697] (1968); Kimball v. Callahan, 590 F.2d 768, 776-77 (9th Cir.), cert, denied 444 U.S. 826 [100 S.Ct. 49, 62 L.Ed.2d 33] (1979).

Id.

In Stevens Village, I agreed with the majority “that IRA incorporation alone does not constitute federal recognition of tribal status for purposes of sovereign immunity.” 1 However, I noted in dissent that:

In the instant case Congress has neither expressly recognized the Village as a tribe for the purposes of sovereign immunity nor expressly waived the Village’s immunity.
Therefore, if the Village is in fact a historically sovereign tribe, this court is bound to honor its immunity from suit.
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Having determined that the federal government has not expressly recognized Stevens Village as a tribe for purposes of sovereign immunity, I would remand the case to afford the Village the opportunity to make a factual showing as to its alleged tribal status.

Stevens, 757 P.2d at 47-48. The facts contained in the record of the instant case are substantially different from those in Stevens Village and therefore lead me to conclude that the section 16 IRA Native Village of Venetie Tribal Government has been recognized as a tribe for purposes of sovereign immunity.

Under Article I, sec. 8, cl. 3 of the United States Constitution, Congress is authorized to “regulate Commerce ... with the Indian Tribes.” Congress’ constitutional authority to legislate with respect to Native Americans is based on the federal government’s political relationship with tribes. Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). “Recognition” of a tribe often is effected by Congress in the context of a government-to-government agreement with the tribe, embodied in a treaty or a statute. However, Congress has at times delegated part of its power to recognize particular groups as “tribes” to the Secretary of Interior. James v. U.S. Dept, of Health and Human Services, 824 ,F.2d 1132 (D.C.Cir.1987).2 Such determinations constitute nonjusticable political questions which are final and binding. United States v. Sandoval, 231 U.S. 28, 46, 34 S.Ct. 1, 5, 58 L.Ed. 107 (1913).

In reference to all matters of this kind, it is the rule of this court to follow the action of the executive and other political *1246departments of the government, whose more special duty it is to determine such affairs. If by them these Indians are recognized as a tribe, this court must do the same. If they are a tribe of Indians, then, by the Constitution of the United States, they are placed, for certain purposes, within the control of the laws of Congress.

U.S. v. Holiday, 70 U.S. (3 Wall.) 407, 419, 18 L.Ed. 182 (1865); see also Perrin v. United States, 232 U.S. 478, 34 S.Ct. 387, 58 L.Ed. 691 (1914); Atkinson v. Haldane, 569 P.2d 151, 160 (Alaska 1977). Once Congress or the executive has recognized a tribe, there is no further need for the court to explore the historical basis for the finding of sovereignty. Stevens Village, 757 P.2d at 47; Atkinson, 569 P.2d at 163.

Given the federal government’s grant of an IRA reservation to Venetie for the purpose of encouraging tribal self-government 3,1 conclude that Venetie was federally recognized as a tribe for the purpose of sovereign immunity. Further support for this conclusion is found in the fact that Venetie’s constitution, as approved by the Secretary of Interior, gives it general police power to “control the use by members or nonmembers of any reserve set aside by the Federal Government for the Village and to keep order in the reserve.”

It is well established that federally recognized tribes enjoy sovereign immunity from suit absent congressional abrogation or waiver. United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 512, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940); United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). In Stevens Village the court reasoned that because ANCSA “evidences Congress’ intent that non-reservation villages be largely subject to state law,” it cannot be deemed to have recognized the villages as tribes. 757 P.2d at 41. In dissent, I stated,

[I]n ANCSA, ... Congress did not address immunity. The court does not cite a single provision of ANCSA that directly or indirectly suggests a waiver of sovereign immunity. Rather the court infers this intent, an approach which is at odds with the rule that a waiver of immunity must be clearly expressed.
One of the provisions the court uses to bolster its waiver conclusion is the section that permits taxation of certain lands granted pursuant to ANCSA. 43 U.S.C.A. § 1620(d) (1986). In my view this section supports the opposite conclusion, because it is an excellent example of the type of clear expression Congress must make to waive an immunity, in this case tax immunity.
The court concludes that ANCSA “evidences Congress’s intent that non-reservation villages be largely subject to state law.” Even assuming that this is true, it does not deprive the villages of sovereign immunity_ Congress does not necessarily waive the sovereign immunity of Indian tribes when it subjects them to some measure of state law.
In short, nothing in ANCSA, the IRA, or any of the earlier enactments approaches the type of express congressional statement that is necessary to waive sovereign immunity.

Stevens Village, 757 P.2d at 45 (citations omitted).

Contrary to the notion that ANCSA represents Congress’ express intent to extinguish those self-governing powers possessed by Alaska’s Native villages, in my view the legislative history of the Act indicates otherwise. As one of ANCSA’s *1247prime architects, Senator Ted Stevens stated:

[W]e have a basic agreement on the fact that Alaska Native people themselves should have the right to self-determination. This is consistent with the President’s policy of self-determination without termination.4

Far from representing an express extin-guishment of sovereignty, ANCSA is properly viewed as an expression of Congress’ recognition of Alaska Natives’ aboriginal title.5

The consistent policy of the United States in its dealings with Indian Tribes has been to grant them title to a portion of the lands which they occupied, to extinguish the aboriginal title to the remainder of the land by placing such land in the public domain, and pay the fair value of the title extinguished.6

Congress followed this policy in its treatment of Alaska Native villages when it enacted ANCSA. ANCSA replaced unprotected aboriginal lands with a full fee title interest and vested that fee title and monetary compensation in specific Native corporations to facilitate economic development.7

To protect the Native people in their transition to economic self-sufficiency, Congress elected to place several provisions in ANCSA that restricted alienation of the land for the first twenty years, exempted from taxation undeveloped lands for twenty years, and exempted the corporations from various SEC restrictions. The 1980 Alaska National Interest Lands Conservation Act (ANILCA)8 and the ANCSA *1248amendments transformed these provisions into permanent protections.9

I also reject the notion that ANCSA’s termination of Venetie’s reservation constitutes a manifestation of Congress’ “clear purpose to terminate” Venetie’s powers of self-government.10 It is well established that tribal status and governmental powers survive the termination of a reservation unless clearly and unequivocally extinguished by Congress. In the case at bar, clear and unequivocal extinguishment by Congress has not occurred. United, States v. Santa Fe Pacific R.R., 314 U.S. 339, 353, 62 S.Ct. 248, 255, 86 L.Ed. 260 (1941); De-coteau v. District County Court, 420 U.S. 425, 442-44, 95 S.Ct. 1082, 1091-93, 43 L.Ed.2d 300 (1975); Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Kimball v. Callahan, 590 F.2d 768, 776-77 (9th Cir.), cert, denied 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979). Federal courts have ruled that this principle applies equally to ANCSA villages. See Chilkat Indian Village v. Johnson, No. J84-024 Civ. (D. Alaska, Oct. 9, 1990) (if Chilkat had governmental power under its status as a reservation ANCSA did nothing to extinguish those powers); Native Village of Tyonek v. Puckett, 890 F.2d 1054 (9th Cir.1989) (ANCSA did not abrogate Tyonek’s tribal sovereign immunity); cf. Native Village of Noatak v. Hoffman, 896 F.2d 1157 (9th Cir.1990) rev’d on other grounds, Blatch-ford v. Native Village of Noatak and Circle Village, — U.S.-, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) (ANCSA constitutes Congressional recognition of Native Villages as Indian tribes).11

*1249Furthermore, I disagree with this court’s position that the Remedies on Default Clause contained in the note and security agreement effects an express waiver of any sovereign immunity possessed by the section 16 IRA Native Village of Venetie Tribe. Atkinson v. Haldane, 569 P.2d 151, 174 (Alaska 1977), contains a lengthy discussion of our view that a governmental unit created pursuant to section 16 of the Indian Reorganization Act12, and the corporate unit created pursuant to section 17 of that Act, are distinct legal entities. Atkinson notes that Opinions by the Solicitor, Department of the Interior, the legislative history of the Act, and considerations of sound public policy support the notion of two legal entities, “one with sovereign immunity, the other with the possibility for waiver of that immunity.” Id.13

While there is considerable difference of opinion between courts regarding whether a “sue and be sued” clause of a section 17 corporation’s charter constitutes a general waiver of immunity possessed by a tribal corporation,14 the United States Supreme Court has mandated that the immunity possessed by a tribal governing body remains intact unless surrendered in express and unequivocal terms. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978). Moreover, because an implied waiver exception would undermine the federal concern for tribal political and economic development,15 a waiver of tribal immunity cannot be implied but must be unequivocally expressed. Id.; Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9th Cir. 1989); American Indian Agrie. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1377-78 (8th Cir. 1985); Wichita and Affiliated Tribes v. Hodel, 788 F.2d 765, 773 (D.C.Cir.1986).

Given these well established principles, I conclude that neither the “sue and be sued” clause nor the Remedies on Default Clause constitute an explicit and unequivocal waiver of immunity by Venetie’s section 16 tribal governing body. Atkinson v. Haldane, 569 P.2d 151, 175 (Alaska 1977). As to the section 17 Venetie corporate body, I am persuaded that principles of comity require that the extent and effect of any such waiver be determined in the first instance by the tribal court. See A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1418 (9th Cir.), cert, denied, 476 U.S. 1117, 106 S.Ct. 2008, 90 L.Ed.2d 659 (1986); R.J. Williams Co. v. *1250Fort Belknap Housing Auth., 719 F.2d 979 (9th Cir.1983); Weeks Const. Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668, 674 (8th Cir.1986). Burlington N. R.R. v. Crow Tribal Council, 940 F.2d 1239 (9th Cir.1991).

The importance of deferring to tribal forums was emphasized by the United States Supreme Court in National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 846, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), and Iowa Mutual Ins. Co. v. La-Plante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987).16 In National Farmers Union, the Supreme Court explained:

We believe that examination should be conducted in the first instance in the Tribal Court itself. Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination. That policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge. Moreover, the orderly administration of justice in the federal court will be served by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed.... Exhaustion of tribal remedies, moreover, will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review.

471 U.S. at 856-57, 105 S.Ct. at 2453-54 (citations omitted). In Iowa Mutual Ins. Co., the exhaustion requirement was extended as a matter of comity to cases involving the diversity jurisdiction of the federal courts. 480 U.S. 9, 107 S.Ct. 971. The Court rejected an attack on tribal court jurisdiction on the basis of local bias and incompetence by stating, “[w]e have rejected similar attacks on tribal court jurisdiction in the past. The alleged incompetence of tribal courts is not among the exceptions to the exhaustion requirement established in National Farmers Union, and would be contrary to the congressional policy promoting the development of tribal courts.” Id. at 19, 107 S.Ct. at 978 (citations omitted).

Relying on these two seminal cases, the superior court in the instant case correctly concluded:

The comity principles of National Farmers Union and LaPlante are well-reasoned and should be adopted by the state courts. The federal government, with its special constitutional relationship to the Indian tribes, has long had the primary role in shaping the policies which relate to the states’ relationships with the tribes. The special federal role in determining policies was recognized by •the Alaska Supreme Court in Atkinson v. Haldane, 569 P.2d 151, 163 (Alaska 1977) (the supremacy of federal law required the recognition of the tribe’s sov*1251ereign immunity even in the face of valid public policy reasons to disregard it). The federal policies enunciated in National Farmers Union are equally applicable to a question of the state court’s exercise of comity. The exercise of jurisdiction by the state court is no less likely to impact negatively the federal policy favoring the development of tribal courts than is the exercise of jurisdiction by the federal court.

Nenana Fuel Co., Inc. v. Native Village of Venetie, No. 4FA-87-354 CI (Alaska Super., November 21, 1989).

. 757 P.2d at 45 n. 6. My reasons for so concluding, however, were based on different considerations than the court’s. I stated:

[T]he Alaska amendment to the IRA allowed any "group[] of Indians in Alaska” with a "common bond” to incorporate. 25 U.S.C.A. § 473a (1983). The "common bond” language is extremely broad. In fact, it is nearly identical to that in a previously-enacted statute providing for the organization of federal credit unions having nothing to do with Indians. 12 U.S.C.A. § 1759 (1980). Whether or not so intended by Congress, the expansive “common bond” language has resulted in reorganization under IRA section 16 of Alaska Native groups that clearly had no historical existence as tribal governmental units. For example, the Ketchikan Indian Corporation is organized under both IRA sections 16 and 17. Yet its members "are not descended from any particular Indian community, but are natives of differing groups who happen to live in Ketchikan.” Board of Equalization v. Alaska Native Bhd. and Sisterhood, Camp. No. 14, 666 P.2d 1015, 1025 (Alaska 1983) (Rabinowitz, J., concurring). Therefore, it seems unlikely that Congress intended to recognize all IRA section 16 [entities] as tribes for purposes of sovereign immunity.

Id.

. See abo 25 C.F.R. 83 (1991). In the absence of Congressional or secretarial recognition, tribal status may in the alternative be judicially proven and, with it, the inherent sovereign authority which flows from that status. United States v. Washington, 641 F.2d 1368, 1372-73 (9th Cir.1981), cert, denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982), Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 585-87 (1st Cir.1979) cert, denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979).

. One of the specific purposes for creating the IRA reservations was to establish boundaries within which the IRA councils would exercise their governmental powers. See Secretary of the Interior Harold L. Ickes’ Instructions for Organization in Alaska Under the Reorganization Act of June 18, 1934 and the Alaska Act of May 1, 1936, Dec. 22, 1937. Shortly before the IRA reservations were revoked, the Alaska Regional Solicitor thoroughly analyzed the status of the IRA reservations. The solicitor concluded that the tribes possess a substantial quantum of ownership control over reserve lands and "possess relatively broad powers for the local management of their affairs, under the department’s usual trust supervision common to all reservations generally.” Memorandum from Regional Solicitor, Anchorage, to Anchorage Superintendent, BIA, “Native Village of Karluk and the [Reservation at Karluk,” January 22, 1968; quoted in D. Case, Alaska Natives and American Laws at 107 (1984).

. 117 CONG.REC. 38440 (daily ed. Nov. 1, 1971). See also 116 CONG.REC. 24216, 24220-27, 24234-35, 24378-82 (daily ed. July 14, 1970) (remarks of Senator Fred Harris strongly opposing any proposals to terminate Native American programs for Alaska Natives). More recently, Senator Stevens reiterated that:

ANCSA was and is a land settlement. It did not terminate the special relationship between Alaska Natives and the Federal Government or resolve any questions concerning the governmental status, if any, of various Native groups. There’s not one reference to sovereignty in ANCSA or in the 1971 Conference report. The Act’s declaration of settlement is very clear. It extinguishes aboriginal claims of settlement and aboriginal hunting and fishing rights, and nothing more or less.

Hearings on S. 2065 before the Subcommittee on Public Lands of the Senate Committee on Energy and Natural Resources, 99th Cong., 2d Sess. 329 (1986) (statement of Senator Stevens).

. The United States Supreme Court has recognized that the right to aboriginal title is a tribal one. Oneida Indian Nation v. Oneida County, 414 U.S. 661, 667, 669, 94 S.Ct. 772, 777, 778, 39 L.Ed.2d 73 (1974).

. H.R.REP. No. 523, 92d Cong., 1st Sess. 4 (1971); quoted in Smith & Kancewick, The Tribal Status of Alaska Natives, 61 U.Colo.L.Rev. 455, 510 (1990).

. It is interesting to note that Congress employed a corporate mechanism almost forty years earlier to encourage Native American tribal economic development in section 17 of the Indian Reorganization Act.

. Act of Dec. 2, 1980, P.L. 96-487, 94 Stat. 2371. As Venetie aptly points out to the court:

[With ANILCA,] Congress extended the tax exemptions for Native Corporation land, created a tax exemption for land which individual Natives received from their corporations as shareholder homesites, and allowed Native Corporations to amend their bylaws in two important ways: to give themselves a “right of first refusal" over sales of Native Corporation shares, and to limit voting rights to Natives or descendants of Natives. The rights of first refusal and Native-only voting limitations were "designed to limit the possibility of take over of Native Corporations by outside interests.” S.REP. NO. 96-413, 96th Cong., 1st Sess. 310 (1979), reprinted in 1980 U.S. CODE CONG. & ADM.NEWS 5070, 5254.
Further, ANILCA established a "land bank” into which Village Corporations could put their land, thereby obtaining immunity from adverse possession, real property taxes on undeveloped property, and judgment execution. The Village Corporation had to agree not to alienate or pledge the lands (except for the required conveyances under ANCSA § 14(c), 43 U.S.C. § 1613(c)). The statute explicitly provided that “For purposes of this section only, each agreement entered into with [an Alaska Native Corporation] shall constitute a restriction against alienation imposed by the United States upon the lands subject to the agreement.” 43 U.S.C. § 1636(b)(1) (emphasis added).
ANILCA provided Land Bank protection for all undeveloped Native Corporation land for at least three years. 43 U.S.C. § 1636(d). Yet Congress eventually concluded that this, too, was not sufficient. In § 11 of the Alaska Native Claims Settlement Act Amendments of 1987, Pub.L. 100-241, 101 Stat. 1788, Land Bank protections are made automatic and permanent and extended to corporate bank*1248ruptcy proceedings. See 43 U.S.C. § 1636(d)(1). They are to remain in effect so long as the corporation involved remained under Native control. See 43 U.S.C. § 1636(d)(4). Expansion of the Land Bank program is meant to promote the "sound” "underlying concept of protecting Native land ownership.” S.REP. NO. 100-201, 100th Cong., 1st Sess. 36 (1986), reprinted in 1988 U.S. CODE CONG. & ADM.NEWS 3269, 3286.

. Pub.L. 100-241, 101 Stat. 1788. Indian legislation is entitled to favorable rules of judicial construction and any ambiguities must be construed in favor of Indian rights. Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976); Alaska Pacific Fisheries Co. v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 41, 63 L.Ed. 138 (1918); In re City of Nome, Alaska, 780 P.2d 363, 367 (Alaska 1989). As the United States Supreme Court explained, favorable rules of judicial construction apply to Indian legislation because,

Indians stand in a special relation to the federal government from which the states are excluded unless the Congress has manifested a clear purpose to terminate immunity and allow states to treat Indians as part of the general community.

Oklahoma Tax Comm’n v. United States, 319 U.S. 598, 613-14, 63 S.Ct. 1284, 1291-92, 87 L.Ed. 1612 (1943); quoted in Bryan, 426 U.S. at 392, 96 S.Ct. at 2112. This court has recognized that this principle applies equally to ANCSA. See Hakala v. Atxam Corp., 753 P.2d 1144, 1147 (Alaska 1988) (ambiguities in ANCSA, as in other federal statutes for the benefit of Indians, are to be construed in favor of the Indians).

. The residents of the reservation opted to keep their reservation lands intact rather than become shareholders in the Doyon regional corporation or receive any distributions of money from the Alaska Native Fund. See February 20, 1973 letter from the Solicitor's office to Gideon James in Arctic Village. The state-chartered ANCSA corporations formed for Venetie and Arctic Village were eventually deeded the former reservation lands in fee simple which were then conveyed to the Native Village of Venetie Tribal Government, which now holds the land in fee simple.

.The federal government has maintained its special relationship with Alaska Natives to facilitate the goals of self-determination. This circumstance is evidenced by the fact that ANCSA villages have been recognized in virtually all modern Indian legislation enacted since 1971. See e.g. Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. § 450a(b), 450b(e) (policy of U.S. "is committed to supporting and assisting Indian tribes in the development of strong and stable tribal governments"); Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 ("[rjecognizing the special relationship between the United States and the Indian tribes and their members ... (2) ... Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed responsibility for the protection and preservation of Indian tribes and their resources”); Indian Financing Act of 1974, 25 U.S.C. § 1451, 1452(c), 31 U.S.C. § 7102 (tribes, including Alaska Native Villages, defined as "states” and thus as governments entitled to benefits of the Act); and Indian Tribal Tax Status Act of 1986, 26 U.S.C. § 7701(40), 7871 (Indian tribal governments treated as States for certain purposes).

. 25 U.S.C. § 476, 477.

. See also F. Cohen, Handbook of Federal Indian Law 325-26 (1982 ed.).

In passing the IRA Congress intended to allow the tribes a certain amount of freedom to enter and compete in the private business world. Early drafts of the Act proposed a single tribal entity continuing the tribes' preexisting power to govern its members politically and adding new corporate powers to allow the tribe to engage in business dealings. An objection was raised that tribal immunity would prevent such an entity from obtaining credit. To resolve this problem, Congress authorized the tribes to organize two separate entities: a political governing body to exercise preexisting powers of self-government pursuant to section 16 of the Act, and a new tribal corporation to engage in business transactions pursuant to section 17....

Those tribes electing to form section 17 business corporations received a charter drafted by the Bureau of Indian Affairs. These charters often contain a clause allowing the corporation to sue and be sued. Some courts have held this language to be a waiver of the immunity of the tribal corporation. But this waiver is limited to actions involving the business activities of the section 17 corporation. Complications in determining the waiver can arise from the fact that many tribes have not clearly separated the activities of their section 16 tribal governments from the section 17 business corporations. This should not broaden the consent provision, because congressional authority for the consent to suit is clearly predicated on the existence of two different organizations and is limited to business transactions. Any action against the tribe acting in a governmental capacity is beyond the scope of the waiver and should be barred.

(Citations omitted.)

. For example, compare Boe v. Fort Belknap Indian Comm., 642 F.2d 276 (9th Cir.1981), aff'g 455 F.Supp. 462 (D.Mont.1978); Parker Drilling Co. v. Metlakatla Indian Comm., 451 F.Supp. 1127 (D. Alaska 1978); Martinez v. Southern Ute Tribe, 150 Colo. 504, 374 P.2d 691 (1962).

. See Indian Reorganization Act, 25 U.S.C. § 461-479 (1976); Indian Self-Determination and Education Assistance Act § 3, 25 U.S.C. § 450a (1976).

. A tribe need not first show that it "has a functioning tribal court,” nor establish what its jurisdiction is, before exhaustion principles apply. In Iowa Mutual, the United States Supreme Court quoted a lower court’s holding which found:

[w]e merely permit the tribal court to initially determine its own jurisdiction. The tribal court's determination can be reviewed later ‘with the benefit of [tribal court] expertise in such matters.’

480 U.S. at 14, 107 S.Ct. at 975 (citations omitted). In support for this position the Supreme Court stated:

[In National Farmers Union ] we refused to foreclose tribal court jurisdiction over a civil dispute involving a non-Indian_ We concluded that, although the existence of tribal court jurisdiction presented a federal question ... considerations of comity direct that tribal remedies be exhausted before the question is addressed by the District Court_ Promotion of tribal self-government and self-determination required that the Tribal Court have "the first opportunity to evaluate the factual and legal bases for the challenge” to its jurisdiction.

Id. at 15-16, 107 S.Ct. at 975-76 (citations omitted). The Court further reasoned:

Tribal authority over the activities on non-Indians on reservation lands is an important part of tribal sovereignty_ Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited. ...

Id. at 18, 107 S.Ct. at 977 (emphasis added) (citations omitted).