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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McCrary v. Ivanof Bay Village (12/9/2011) sp-6626
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL McCRARY, )
) Supreme Court No. S-13972
Appellant, )
) Superior Court No. 3AN-09-10267 CI
v. )
) O P I N I O N
IVANOF BAY VILLAGE and )
EDGAR SHANGIN, ) No. 6626 - December 9, 2011
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter A. Michalski, Judge.
Appearances: Donald Craig Mitchell, Anchorage, for
Appellant. Heather Kendall Miller, Natalie A. Landreth, and
Erin C. Dougherty, Native American Rights Fund, and Lloyd
B. Miller, Sonosky, Chambers, Sachse, Miller & Munson,
LLP, Anchorage, for Appellees.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
WINFREE, Justice.
I. INTRODUCTION
Michael McCrary sued Ivanof Bay Village (Ivanof Bay) and its president,
Edgar Shangin, under two contracts, alleging breaches of the implied covenants of good
faith and fair dealing. The superior court dismissed the suit based on sovereign
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immunity. McCrary appeals the sovereign immunity ruling, arguing that even though
the United States Department of Interior lists Ivanof Bay as a federally recognized Indian
tribe, Ivanof Bay has not been formally designated as a federally recognized tribe. We
have previously concluded Alaska Native tribes recognized by Congress or the Executive
Branch are sovereign under federal law, and McCrary has not demonstrated this
conclusion should be overturned. We therefore affirm the superior court's dismissal of
McCrary's suit.
II. FACTS AND PROCEEDINGS
The United States Department of Interior (Department) annually publishes
1 2
a list of federally recognized Indian tribes. Ivanof Bay has been a recognized tribe on
the Department's list since the Department issued a "preliminary" list of Alaska Native
tribes in 1982.3
In September 2005 McCrary contracted with Ivanof Bay to oversee its land
by performing certain duties, such as securing buildings, in exchange for payment of
$1,500 monthly.4 In December 2005 McCrary and Ivanof Bay cancelled that contract,
1 See 25 U.S.C. § 479a-1 (2006) (directing Secretary of Interior to publish
annual list of recognized tribes). In this opinion, we refer to the "Department's list,"
even though Congress delegated this authority to the Secretary of Interior. Id.
2 We use Ivanof Bay's preferred spelling even though it appears as "Ivanoff
Bay Village" on the Department's list.
3 Indian Tribal Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 47 Fed. Reg. 53,130, 53,131, 53,133-35 (Nov.
24, 1982); e.g., Indian Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 74 Fed. Reg. 40,218, 40,222 (Aug. 11, 2009).
4 For the purposes of this appeal, we consider the facts alleged in the
complaint as true. Fuhs v. Gilbertson, 186 P.3d 551, 554 (Alaska 2008) ("deeming all
facts in the complaint true and provable" when reviewing motion to dismiss).
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but Ivanof Bay agreed McCrary could "store his personal belongings in the tribal
building."
In June 2006 McCrary and Ivanof Bay formed a new contract for McCrary
to "provide sustainable economic development to the Ivanof Bay Village tribal
members." Ivanof Bay agreed to pay McCrary a monthly fee for being "the lead agent
in the economic development planning, developing, and management effort." McCrary
incurred expenses and assumed contractual obligations exceeding $100,000, of which
Shangin had personal knowledge. In September 2006 Shangin cancelled the June
contract on Ivanof Bay's behalf without reimbursing McCrary's expenses. McCrary
attempted to retrieve his personal property from the tribal building, but Ivanof Bay
denied him access.
In October 2008 McCrary sued Ivanof Bay and Shangin in state superior
court, alleging breaches of the implied covenants of good faith and fair dealing in the
2005 and 2006 contracts.5 In November McCrary dismissed the case without prejudice
and filed a new suit against Ivanof Bay (but not Shangin) and the Department in federal
district court. McCrary later amended his complaint to include as defendants the Acting
Assistant Secretary of Interior for Indian Affairs and the Secretary of Interior. McCrary
sought "a declaratory judgment that neither Congress nor the Secretary of the Interior nor
any other official of [the Department] . . . has recognized the members of [Ivanof Bay]
to be a 'federally recognized tribe,' and, as a consequence, [Ivanof Bay] does not possess
sovereign immunity."
In September 2009 the federal district court dismissed McCrary's complaint
for lack of subject matter jurisdiction because the complaint did not raise a federal
question. The next day McCrary again sued Ivanof Bay and Shangin in superior court,
5 The suit named Shangin in his capacity as Ivanof Bay's president.
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making the same claims as his previous superior court suit.6 In January 2010 Ivanof Bay
and Shangin moved to dismiss McCrary's suit, arguing in part that the superior court
lacked subject matter jurisdiction because "Ivanof Bay is a federally recognized [t]ribe
protected by sovereign immunity." Ivanof Bay and Shangin relied on our conclusion in
John v. Baker that Alaska Native tribes on the Department's list of federally recognized
tribes are sovereign entities entitled to sovereign immunity.7 McCrary opposed the
motion, arguing the list had no effect because Ivanof Bay has not been formally
designated as a federally recognized tribe.
In June 2010 the superior court dismissed McCrary's suit for lack of subject
matter jurisdiction because Ivanof Bay and Shangin were "protected by sovereign
immunity." McCrary appeals.8
III. STANDARD OF REVIEW
"The applicability of sovereign immunity presents a question of law that
we review de novo."9 We adopt "the rule that is most persuasive in light of precedent,
reason, and policy."10
6 The complaint is ambiguous, but because McCrary does not argue on
appeal that he brought claims against Shangin in any capacity other than as president of
Ivanof Bay, we assume he did not.
7 982 P.2d 738, 748-50 (Alaska 1999).
8 The State of Alaska declined our invitation to participate as amicus curiae.
9 State v. Alaska State Emps. Ass'n, AFSCME, AFL-CIO, 190 P.3d 720, 722
(Alaska 2008) (citing Runyon ex rel. B.R. v. Assoc. of Vill. Council Presidents, 84 P.3d
437, 439 (Alaska 2004)).
10 Runyon, 84 P.3d at 439 (citing Bennett v. Bennett, 6 P.3d 724, 726 (Alaska
2000)).
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IV. DISCUSSION
McCrary contends the superior court's implicit determination that Ivanof
Bay is a federally recognized tribe was the basis for its ruling that Ivanof Bay and
Shangin are immune from suit in state court. McCrary argues the superior court erred
by dismissing his complaint because Congress has neither recognized Ivanof Bay as an
Indian tribe nor delegated authority to the Department to do so. He concludes that Ivanof
Bay and Shangin are not entitled to sovereign immunity because Ivanof Bay is not a
validly recognized tribe.
McCrary asks us to overrule our September 1999 John v. Baker decision,
which concluded that Alaska Native tribes recognized by Congress or the Executive
Branch are sovereign under federal law.11 McCrary asserts that the parties in John v.
Baker did not adversarially brief the tribal recognition issue and therefore our conclusion
amounted to dictum, not a holding entitled to recognition under the doctrine of stare
decisis. He alternatively contends our conclusion was "originally erroneous" and that
we should overrule this aspect of John v. Baker.
InJohn v. Baker we recognized inherent tribal jurisdiction outside of Indian
country, concurrent with state jurisdiction, to adjudicate certain child custody disputes
involving tribal members.12 We examined whether Alaska Native tribes are sovereign
11 982 P.2d at 749 ("We . . . will defer to the determinations of Congress and
the Executive Branch on the question of tribal status. If Congress or the Executive
Branch recognizes a group of Native Americans as a sovereign tribe, we 'must do the
same.' " (citation omitted)).
12 982 P.2d at 748-49, 759, 765; see also State v. Native Vill. of Tanana, 249
P.3d 734, 742-44 (Alaska 2011) (discussing John v. Baker).
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under federal law:13 we observed that the Department issued a list of federally
recognized tribes in 1993 including most Alaska Native villages and that the list's
preamble expressed the Department's intention to "reaffirm the sovereign status of the
recognized tribes."14 The preamble stated that Alaska "villages and regional tribes listed
. . . have the same governmental status as other federally acknowledged Indian tribes by
virtue of their status as Indian tribes with a government-to-government relationship with
the United States."15 We concluded that the Department viewed "recognized Alaska
villages as sovereign entities."16
The Federally Recognized Indian Tribe List Act of 1994 (Tribe List Act)
directs the Department to publish annual lists of tribes eligible for special programs and
services because of their Indian tribe status.17 We stated in John v. Baker that "for those
who may have doubted the power of the [Department] to recognize sovereign political
bodies, [the] 1994 act of Congress appears to lay such doubts to rest."18 We concluded
that the "text and legislative history of the Tribe List Act demonstrate that Congress also
13 John v. Baker, 982 P.2d at 748-50.
14 Id. at 749 (citing Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs, 58 Fed. Reg. 54,364, 54,368-
69 (Oct. 21, 1993)).
15 Id. at 749-50 (emphasis omitted) (quoting 1993 list, 58 Fed. Reg. at 54,365-
66).
16 Id. at 749.
17 Id. at 750 (citing 25 U.S.C. § 479a-1 (West Supp. 1998)).
18 Id. (citing 25 U.S.C. § 479a et seq. (West Supp. 1998)).
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views the recognized tribes as sovereign bodies,"19and it emphasizes that legislative
history referring to the recognized tribes' "sovereignty," "quasi-sovereign status," and
"government-to-government relationship [with] the United States . . . as . . . domestic
dependent nation[s]."20 We also noted that the Department continued publishing lists
including Alaska Native villages pursuant to this congressionally delegated authority.21
In deference to congressional and executive recognition that listed Alaska Native tribes
are sovereign, we expressly recognized their sovereignty in John v. Baker.22
McCrary argues that John v. Baker should not be considered binding
precedent because no party in that appeal argued against recognition of the sovereign
status of Alaska Native tribes. He contends this legal issue was not tested by the
adversarial process. But our conclusion regarding the Executive Branch's tribal
recognition and Congress's approval through the Tribe List Act was carefully considered
and adopted by the entire court.23 Our conclusion in John v. Baker was not dictum -
it was decisional and an essential foundation of the broader holding that Alaska Native
tribes, by virtue of their sovereign powers, have concurrent tribal jurisdiction to
adjudicate certain child custody disputes involving tribal members.24
19 Id.
20 Id.
21 Id.
22 Id. at 749-50.
23 Id.; id. at 776 n.75 (Matthews, C.J., dissenting) ("In view of the 1993
recognition . . . of the tribal status of Alaska's Native villages, the existence of their
sovereignty is not in issue. They have the same sovereign powers as recognized tribes
in other states." (citation omitted)).
24 Id. at 748-49, 759 (majority opinion); see VECO, Inc. v. Rosebrock, 970
(continued...)
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Our precedent is not lightly set aside. We have repeatedly held "that a party
raising a claim controlled by an existing decision bears a heavy threshold burden of
showing compelling reasons for reconsidering the prior ruling."25 "We will overrule a
prior decision only when clearly convinced that the rule was originally erroneous or is
no longer sound because of changed conditions, and that more good than harm would
result from a departure from precedent."26 McCrary does not argue changed conditions
and he has not shown that our previous decision was originally erroneous or that
departure from this precedent would result in more good than harm. The U.S. District
Court for the District of Alaska has held on multiple occasions that the Department has
authority to recognize Alaska Native tribes.27 Federal courts of appeals have made
24 (...continued)
P.2d 906, 922 (Alaska 1999) (concluding discussion in previous case "was necessary for
our holding" and therefore not dictum); Gonzales v. Krueger, 799 P.2d 1318, 1322
(Alaska 1990) (Moore, J., concurring) (stating language in previous decision was not
dictum because it was necessary to reach the conclusion).
25 Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 982
n.104 (Alaska 2005) (citing Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937,
943 (Alaska 2004)).
26 Id. (quoting Thomas, 102 P.3d at 943).
27 Native Vill. of Tyonek v. Puckett, No. A82-0369-CV, slip op. at 19-21, 29-
30 (D. Alaska Oct. 29, 1996) (holding 1993 list recognized Native Village of Tyonek and
that tribal status rendered Village immune from suit); Native Vill. of Venetie I.R.A.
Council v. Alaska, Nos. F86-0075 Civ (HRH) & F87-0051 CIV (HRH), 1994 WL
730893, at *9-11 (D. Alaska Dec. 23, 1994) (holding Department had authority to
acknowledge tribes and noting Tribe List Act bolstered this position because Congress
chose to repudiate Secretary's decision to remove one Alaska tribe from 1993 list but did
not repudiate any other portions of same list); see also Native Vill. of Venetie I.R.A.
Council v. Alaska, No. F86-0075 Civ (HRH), slip op. at 9-10 (D. Alaska Sept. 20, 1995)
(summarizing holding in previous Venetie order).
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similar statements.28 Commentators also acknowledge the Department's authority to
recognize tribes.29
If the Department or the courts have misconstrued congressional intent,
Congress has had ample opportunity to clarify the Department's authority: the
Department published its "preliminary list" of eligible Alaska Native tribes in 1982,30
recognized Alaska Native tribes explicitly in the 1993 list,31 and included Alaska Native
28 Miami Nation of Indians of Indiana, Inc. v. U.S. Dep't of the Interior, 255
F.3d 342, 345 (7th Cir. 2001) (noting that "Congress has delegated to the executive
branch the power of recognition of Indian tribes"); W. Shoshone Bus. Council v. Babbitt,
1 F.3d 1052, 1056-57 (10th Cir. 1993) (relying on Department tribal recognition
regulations to hold tribe's absence from Department's list was dispositive);James v. U.S.
Dep't of Health & Human Servs., 824 F.2d 1132, 1138 (D.C. Cir. 1987) ("Congress has
specifically authorized the Executive Branch to prescribe regulations concerning Indian
affairs and relations. Regulations establishing procedures for federal recognition of
Indian tribes certainly come within the area of Indian affairs and relations.").
29 DAVID S. CASE & DAVID A. VOLUCK, ALASKA NATIVES AND AMERICAN
LAWS 371 (2d. ed. 2002) ("The publication in 1993 of the Interior Department's list of
federally recognized tribes, including some 227 Alaska tribes, and congressional
ratification of the list a year later resolved any remaining question of Alaska Native tribal
status."); COHEN 'S HANDBOOK OF FEDERAL INDIAN LAW § 3.02[4], at 140 (Nell Jessup
Newton ed., 2005 ed.) ("Congress has long delegated authority to the executive branch
to take actions consistent with federal recognition of tribes. This delegation was the
source of executive branch authority to adopt an administrative process for federal
recognition, which was done in 1978." (citation omitted)); CONFERENCE OF W. ATTY 'S
GEN .,AMERICAN INDIAN LAW DESKBOOK 63 (4th ed. 2008) ("Congress occasionally has
acted to acknowledge tribes directly but, more importantly, has delegated to the
Secretary of the Interior broad authority that encompasses promulgation of regulations
setting forth criteria for federal acknowledgment." (citations omitted)).
30 1982 list, 47 Fed. Reg. at 53,1331, 53,133-35.
31 1993 list, 58 Fed. Reg. at 54,364-66 (noting in preamble list's purpose to
eliminate doubt and unequivocally acknowledge Alaska Native tribes' governmental
(continued...)
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tribes on each subsequent list.32 Congress chose not to override those actions when it
enacted the Tribe List Act,33 but conversely overrode the Department's omission of one
Alaska Indian tribe from the 1993 list.34
We conclude McCrary has not sustained his heavy burden to demonstrate
our precedent in John v. Baker should be overturned. Because Ivanof Bay is a federally
recognized tribe, it is entitled to sovereign immunity. Ivanof Bay and Shangin, as its
president, are immune from suit in state court.35
31 (...continued)
status).
32 E.g., 2009 list, 74 Fed. Reg. at 40,222-23.
33 Federally Recognized Indian Tribe List Act of 1994, Pub. L. 103-454, 108
Stat. 4791, 4791-92 (codified at 25 U.S.C. § 479a-1 (2006)).
34 The Department's 1993 list did not include the Central Council of Tlingit
and Haida Indian Tribes of Alaska. In response, Congress passed the Tlingit and Haida
Status Clarification Act, Pub. L. No. 103-454, 108 Stat. 4791 (Nov. 2, 1994) codified
at 25 U.S.C. §§ 1212, 1213 (2006). In this Act, Congress expressly recognized the
Central Council of Tlingit and Haida Indian Tribes of Alaska. Additionally, Congress
noted that "[t]he Secretary does not have the authority to terminate the federally
recognized status of an Indian tribe as determined by Congress . . . ." Section 2, Pub. L.
No. 103-454, 108 Stat. 4791 (Nov. 2, 1994). We do not believe Congress would
expressly impugn the Secretary's authority to terminate congressionally recognized
tribes, but fail to also disaffirm the Secretary's power to recognize tribal status. See also
Native Vill. of Venetie I.R.A. Council v. State of Alaska, 1994 WL 730893, *10 (D.
Alaska Dec. 23, 1994).
35 See, e.g., Runyon, 84 P.3d at 439 ("[T]ribes have long been recognized as
possessing the common-law immunity from suit traditionally enjoyed by sovereign
powers." (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978))).
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V. CONCLUSION
We AFFIRM the superior court's dismissal of McCrary's suit based on
sovereign immunity.36
36 We note the superior court based its dismissal on lack of subject matter
jurisdiction. It is unclear whether a tribe's sovereign immunity is merely an affirmative
defense or a bar to jurisdiction. Compare Sea Hawk Seafoods, Inc. v. State, 215 P.3d
333, 339 (Alaska 2009) (holding state sovereign immunity is an affirmative defense "that
does not affect a court's subject-matter jurisdiction"), with Kiowa Tribe of Okla. v. Mfg.
Techs., Inc., 523 U.S. 751, 755-56 (1998) ("We have often noted . . . that the immunity
possessed by Indian tribes is not coextensive with that of the States.") and Puyallup
Tribe, Inc. v. Dep't of Game of State of Wash., 433 U.S. 165, 172 (1977) ("Absent an
effective waiver or consent, it is settled that a state court may not exercise jurisdiction
over a recognized Indian tribe."). But because Ivanof Bay properly raised sovereign
immunity as a defense and we affirm on that ground, we do not need to decide whether
dismissal for lack of subject matter jurisdiction was proper.
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