MOORE, Justice, concurring.

I agree with the court's finding that the Remedies on Default clause waived any sovereign immunity possessed by Venetie. I also agree with the court's conclusion that the superior court erred in ordering exhaustion of tribal court remedies. In National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856, 105 S.Ct. 2447, 2453, 85 L.Ed.2d 818 (1985), the Supreme Court declared that the examination of a tribal court's civil subject-matter jurisdiction "should be conducted in the first instance in the Tribal Court itself." The Court reiterated this doctrine in Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 16 n. 8, 107 S.Ct. 971, 976 n. 8, 94 L.Ed.2d 10 (1987), stating that "[e]xhaustion is required as a matter of comity. . . ." This comity "arises out of the `attributes of sovereignty' possessed by Indian tribes, their `inherent powers' of self-government, and the `vital role' of tribal courts in that process." State of Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, 856 F.2d 1384, 1388 (9th Cir. 1988) (citing National Farmers, 471 U.S. at 851, 856, 105 S.Ct. at 2451, 2453, and LaPlante, 480 U.S. at 14-19, 107 S.Ct. at 975-78).

Before a state court can require the exhaustion of tribal court remedies, however, it must find that a legitimate tribal court exists. See Chilkat Indian Village v. Johnson, No. J84-024 Civ., order at 10 (D. Alaska, Jan. 11, 1990) ("[E]xhaustion will not be required where an assertion of tribal jurisdiction . . . would be futile because of a lack of adequate opportunity to challenge tribal jurisdiction, as where, for example, a tribe lacks an operational court system."). For a tribal court to be legitimate, it must serve a federally recognized tribe which occupies a territory over which it has governmental authority, see State of Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, 856 F.2d at 1388, and it must be established and able to entertain suits. See Chilkat Indian Village v. Johnson, No. J84-024 Civ., slip op. at 19 (D. Alaska, Oct. 9, 1990). A court established by a non-tribal entity is obviously not legitimate, since a non-tribal entity may not establish courts in which a state or federal court can require the exhaustion of remedies. State of Alaska ex rel. Yukon Flats School Dist., 856 F.2d at 1388.

I write separately, however, because I believe the court has failed to address the crucial issue presented by this appeal, whether Venetie is an Indian tribe entitled to sovereign immunity. To date, no court has expressly considered whether a Native group which once resided on a federally recognized reservation in Alaska constitutes a sovereign Indian tribe after the passage of ANCSA. The primary reasons for this reluctance are the complexity and political nature of the questions involved. The unfortunate result of this judicial avoidance is that great uncertainty pervades the Natives' economic dealings and jeopardizes beneficial legislation in the state legislature. In an attempt to partially remedy this situation, I will confront head-on the question of whether Venetie is an Indian tribe entitled to sovereign immunity.

The superior court determined that Venetie meets the criteria for sovereignty set forth in Native Village of Stevens v. Alaska Management Planning, 757 P.2d 32 (Alaska 1988) and therefore falls within an exception to the general rule that Native groups in Alaska are not sovereign tribes. The court concluded that the Tribal Government has explicit powers of self-government pursuant to Article 4 of its constitution. The court further determined that Venetie meets the reservation requirement of Stevens Village. It noted that the Secretary of the Interior created the Venetie Reservation under the Alaska Indian Reorganization Act and that the villagers protested its termination when ANCSA became effective in 1971. Because the ANCSA village corporations within the former Venetie Reservation elected to acquire fee title to those lands and then to deed title to the Tribal Government, the court concluded that ANCSA's termination of the reservation did not abolish the sovereign immunity previously held by the entire Venetie IRA organization.

Nenana Fuel contests this ruling on several grounds. First, it claims that Venetie does not meet certain prerequisites to sovereignty as described in Stevens Village. It also claims that any sovereignty Venetie had was extinguished when its reservation was terminated by ANCSA. Finally, Nenana Fuel contends that Public Law 280 stripped the Village Corporation and Tribal Government of any jurisdiction they may have had over this litigation.

It has long been recognized that American Indian tribes outside Alaska are immune from suit due to their status as sovereign governmental entities. See Three Affiliated Tribes of Fort Berthold Reserv'n v. Wold Eng'g, 476 U.S. 877, 891-92, 106 S.Ct. 2305, 2313-14, 90 L.Ed.2d 881 (1986); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1676, 56 L.Ed.2d 106 (1978); United States v. United States Fidelity Guar. Co., 309 U.S. 506, 512-13, 60 S.Ct. 653, 656-57, 84 L.Ed. 894 (1940). Courts also have consistently recognized that Alaska Native groups have a very different history than Natives in the lower forty-eight states; their interactions with the federal government have been very different from those between the government and tribes of other states. Metlakatla Indian Community v. Egan, 369 U.S. 45, 50-51, 82 S.Ct. 552, 556-57, 7 L.Ed.2d 562 (1962); Stevens Village, 757 P.2d at 35; Atkinson v. Haldane, 569 P.2d 151, 154 (Alaska 1977). As the United States Supreme Court stated in Metlakatla,

There were no Indian wars in Alaska, although on at least one occasion, see Gruening, The State of Alaska (1954), pp. 36-37, there were fears of an uprising. There was never an attempt in Alaska to isolate Indians on reservations. Very few were ever created, and the purpose of these, in contrast to many in other States, was not to confine the Indians for the protection of the white settlers but to safeguard the Indians against exploitation. Alaskan Indians are now voting citizens, some of whom occupy prominent public office in the state government.

Metlakatla, 369 U.S. at 51, 82 S.Ct. at 557. Because the land resources of Alaska appeared limitless in the early days of the territory, "the westward migration of white civilization which displaced the tribes [of the lower forty-eight states] never occurred in Alaska." Atkinson, 569 P.2d at 154. And, due to the non-hostile history of Alaska's settlement, the federal government never attempted to enter into treaties with Alaska Natives. Id. As a result of these circumstances, most of the facts which created the Indian law authority of the lower forty-eight states are absent from cases involving Alaska Natives. See Metlakatla Indian Community v. Egan, 362 P.2d 901, 920-21 (Alaska 1961), partially rev'd 369 U.S. 45, 50-51, 82 S.Ct. 552, 556-57, 7 L.Ed.2d 562 (1962).

We determined in Atkinson v. Haldane that the history of the Metlakatla Indian Community was much more like the history of Indian tribes of other states than that of other Alaska Native groups, thereby entitling it to sovereign tribal status. Atkinson, 569 P.2d at 154-55. Of particular importance to this holding was the fact that the Metlakatlans continued to reside on a federally recognized reservation even after the passage of ANCSA, which abolished all other reservations in Alaska. Id.; see 43 U.S.C. § 1618(a) (1988). Our conclusion was further compelled by the strong central tribal government established by the Native community on the reserve. Atkinson, 569 P.2d at 156.

In Stevens Village, we again acknowledged the unique status enjoyed by the Metlakatla community. 757 P.2d at 36. We emphasized that "judicial recognition of tribal sovereign immunity turn[s] on whether Congress, or the executive branch of the federal government, ha[s] recognized the particular group in question as a tribe." Id. at 34-35 (citing Atkinson, 569 P.2d at 161-63). After reviewing the history of the relationship between the federal government and Alaska Natives up until the passage of the Alaska Indian Reorganization Act in 1936, 49 Stat. 1250 (1936), we concluded that, with the exception of the Metlakatlans, Congress had intended that Alaska Native groups not be treated as sovereigns. 757 P.2d at 34-41. Further, we determined that neither the IRA nor any subsequent congressional action had signaled recognition of the sovereign status of Alaska Native groups. 757 P.2d at 34.

In arriving at this conclusion, we observed that the Indian Reorganization Act (IRA), 25 U.S.C. § 461 et seq. (1982), was "designed to encourage Indians to `revitalize their self-government through the adoption of constitutions and bylaws and through the creation of chartered corporations, with power to conduct the business and economic affairs of the tribe.'" 757 P.2d at 39 (quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151, 93 S.Ct. 1267, 1271, 36 L.Ed.2d 114 (1973)). Since § 16 of the IRA applied only to Indian tribes or tribes residing on a reservation, the Act's applicability to Alaska was very limited. Not only were Alaska Native groups not tribes, but there were very few reservations in existence in Alaska. In 1936, § 1 of the Alaska Indian Reorganization Act, 49 Stat. 1250 (1936), extended § 17 of the IRA to Alaska and also expanded the applicability of the Act:

groups of Indians in Alaska not recognized prior to May 1, 1936 as bands or tribes, but having a common bond of occupation, or association, or residence within a well-defined neighborhood, community or rural district, may organize to adopt constitutions and by-laws and to receive charters of incorporation and federal loans under §§ 10, 16, and 17 . . . of the [IRA].

This expanded application of the IRA was deemed necessary because it had been "assumed that Alaska Natives were not members of federally recognized Indian tribes." Report of the Governor's Task Force on Federal-State-Tribal Relations, at 110-11 (Feb. 14, 1986). In Stevens Village, we interpreted these circumstances as an express Congressional statement that most Native groups in Alaska had not been recognized as tribes. 757 P.2d at 40.

Following our review of the IRA in Stevens Village, we concluded that the Alaska Indian Reorganization Act "expressly states that Native groups in Alaska have not been accorded tribal recognition." 757 P.2d at 40. We found that while the IRA sets forth a means by which such groups might achieve self-governing status, the Native Village of Stevens clearly had not achieved that status. Id. at 40-41. This conclusion was based on the fact that the village did not have, and never had, a reservation on which to exercise its governmental powers. Id. at 40. We stated: "In our view, the mere approval of a section 16 constitution . . . by the Secretary of the Interior . . . does not suffice to afford . . . tribal status for the purpose of application of the doctrine of tribal sovereign immunity." Stevens Village, 757 P.2d at 40. Rather, the existence of a federally recognized reservation was a "necessary precondition to native communities' exercising local government powers under section 16 of the IRA." 757 P.2d at 40. Because this crucial element of sovereignty was lacking in the Stevens Village case, we refused to accord sovereign status to the village.

The situation of the Native Village of Venetie lies between the two factual settings presented by the Metlakatla Indian community and the Native Village of Stevens. Unlike Stevens Village, which never possessed a reservation, Venetie once possessed a reservation. That reservation, however, was abolished in 1971 by ANCSA. Due to this fact, Venetie is unlike Metlakatla, whose reservation continues to exist pursuant to express congressional recognition in ANCSA. Our inquiries into tribal sovereignty in Stevens Village and Atkinson therefore provide me with insufficient guidance to resolve Venetie's present claim. Accordingly, I proceed to analyze the question whether a Native group which once resided on a federally recognized reservation in Alaska can constitute a sovereign Indian tribe even after the federal government has expressly terminated the reserve.

I find that Congress expressly pronounced in its 1971 enactment of ANCSA that no Native Alaskan group other than the Metlakatla Indian community of the Annette Island Reserve may be entitled to sovereign tribal status. A review of the history of Alaska's settlement and the goals which ANCSA was intended to pursue makes this conclusion inevitable. As noted previously, the history of Alaska Native groups is extremely different from the history of Indians in the lower forty-eight states. Specifically recognizing this unique history, and in hopes of arriving at a new, more successful means of resolving Native claims, ANCSA expressly rejected the reservation model which settled Native claims in other states.

The legislative history of ANCSA is instructive on this point. In its October 21, 1971 Report to Congress regarding the proposed ANCSA bill, the Committee on Interior and Insular Affairs acknowledged the errors of the past, stating: "The Congress has an opportunity in this last major settlement between the United States and the Native peoples of America to arrive at a more just and hopefully, a wiser resolution than has been typical of our country's history in dealing with Native people in other times and in other states." S.Rep. No. 405, 92d Cong. 1st Sess., at 61-62 (1971). The Committee then identified several major differences between ANCSA and previous Indian settlements. It wrote:

In several important respects the disposition recommended by the Committee for the Alaska Native land claims differs from previous settlements with Indian groups in the other States. The status of aboriginal claims in Alaska is not burdened with a history of conquest or of treaties between the United States and tribal groups. The status of the land, with minor and manageable exceptions, has not been complicated by the establishment of Indian Reservations. . . . The most important innovations [in the Committee's proposed bill] are as follows:

(1) The settlement is statewide and applies to all Alaska Native groups; all eligible Natives regardless of their ethnic affiliation or their location are entitled to an equal share in the assets provided as compensation for claims extinguished in the settlement.

(2) The settlement will with minor exceptions put an end to racial or ethnic distinctions in land tenure or hunting and fishing rights.

(3) The assets granted to Alaska Natives under the terms of this settlement will be managed and disposed of by them either as individuals or through statewide, regional and local corporations controlled by them.

S.Rep. No. 405, 92d Cong., 1st Sess., at 79-80 (1971).

The Act's legislative history also shows that Congress intended that after ANCSA's enactment there was to be no trust relationship between the federal government and the Native groups of Alaska, as there is between the government and the Native tribes of other states. Congress intended that "lands granted to Natives under this Act [are not to be] considered `Indian reservation' lands for purposes other than those specified in this Act. The lands granted by this Act are not `in trust' and the Native villages are not Indian `reservations.'" H.R. Rep. No. 746, 92d Cong., 1st Sess. 40, reprinted in 1971 U.S.C.C.A.N. 2192, 2253. In House consideration of ANCSA, it was again clarified that "[t]he [ANCSA] bill does not establish any trust relationship between the Federal Government and the Natives. The regional corporations and the village corporations will be organized under State law, and will not be subject to Federal supervision except to the limited extent specifically provided in the bill. All conveyances will be in fee — not in trust." H.R. Rep. 523, 92d Cong., 1st Sess. 9, reprinted in 1971 U.S.C.C.A.N. 2192, 2199.

The legislative history of ANCSA thus reveals both the comprehensive scope of the Act as well as Congress' intention to resolve Alaska Native claims in a new and entirely different manner than was used to resolve the claims of other Indian groups. Due to the specific tailoring of ANCSA to Alaska Native claims, as well as the comprehensiveness of the Act's resolution of those claims, I conclude that ANCSA represents a final and binding settlement of Native claims, including claims of tribal sovereignty.

The actual language of ANCSA is also absolutely inconsistent with the concept that Alaska Native groups carry on as independent and sovereign enclaves entitled to special federal recognition. The Act's preamble unequivocally demonstrates Congress' intention that ANCSA settle "all claims by Natives and Native groups of Alaska," 43 U.S.C. § 1601(a) (1988), and that it accomplish the assimilation of Alaska Natives into society as a whole. Further, in the Act's "declaration of policy," Congress states:

[T]he settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska.

43 U.S.C. § 1601(b) (1988) (emphasis added). Any finding that ANCSA did not abolish native sovereignty clearly would be at odds with Congress' desire to abolish the reservation system and to avoid prolonged wardship or trusteeship of Alaska Natives.

The substantive provisions of ANCSA further illuminate the irreconcilability of that Act with concepts of tribal sovereignty in Alaska. Significantly, the Act explicitly provides for a privately-owned corporate system of operation rather than a reservation-based tribal system. See 43 U.S.C. § 1606 (1988). Section 7 of the Act establishes regional corporations which are organized like any other Alaska corporation, with, for example, articles of incorporation and bylaws, management under a board of directors, and ownership by stockholders. Id. The corporations operate the same as other Alaska corporations, with certain limited exceptions such as some restrictions on the alienation of shares. See 43 U.S.C. § 1606(h) (1988 Supp. 1992). These provisions make clear that the regional corporations created by ANCSA are business corporations governed by state law, not tribal sovereigns. As Senator Stevens of Alaska stated during the Senate's discussion of the Act:

[The regional corporations] are not government entities, but they are a part of a profitmaking picture for the native people of Alaska for the future. . . . It is important for all to note that these are incorporated under the laws of Alaska to conduct business for profit.

They are not government bodies. . . .

117 Cong.Rec. 46,964 (1971).

The village corporations created by the Act are also businesses subject to state law. 43 U.S.C. § 1607 (1988). While these organizations have been endowed with sufficient land and other assets to ensure effective self-determination, see 43 U.S.C. §§ 1605 1610 (1988); 117 Cong.Rec. 38,445 (1971) (statement of Senator Harris during Senate debate of the ANCSA bill) (arguing in favor of a generous ANCSA land settlement to ensure adequate power of Native self-determination), they are like the regional corporations in that they possess no sovereign status. See 117 Cong. Rec. 46,964 (1971) (statement of Sen. Stevens). In my view, both the regional and village corporate organizations possess no status as governing bodies, but are instead intended to facilitate the assimilation of Native Alaskans into the modern business world.

I find further evidence of Congress' intent to terminate Alaska Native claims to tribal status from the fact that Congress conveyed the land due under the Act to the ANCSA regional and village corporations, not to any governing IRA organizations. See 43 U.S.C. § 1611 (1988). Even in the case of villages such as Venetie, which elected not to become part of the regional corporate scheme and to take fee title to certain lands instead, 43 U.S.C. § 1618(b) (1988), Congress conveyed the land due under § 1618(b) to the ANCSA village corporation of Venetie, not to the Venetie IRA organization. Because the membership of these two organizations may differ, I interpret Congress' action as yet another indication that the land conveyed under ANCSA does not and cannot establish boundaries for any tribal entity's jurisdiction.

Finally, and most significantly, ANCSA § 19 specifically revokes all reservations existing in Alaska, with the exception of the Annette Island Reserve occupied by the Metlakatla Indian Community. 43 U.S.C. § 1618(a) (1988). ANCSA therefore abolishes all claims to tribal status and sovereignty by Alaska Natives other than the Metlakatlans, since federal recognition of a reservation is a necessary prerequisite to judicial recognition of Alaskan tribal sovereignty. See Mescalero Apache Tribe, 411 U.S. at 148-49, 93 S.Ct. at 1270-71. ("Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the state."); Stevens Village, 757 P.2d at 41. If Venetie's claim to sovereignty were recognized in the absence of a federally recognized reservation, it would be impossible to ascertain what boundaries defined the area of Venetie's jurisdiction.

In summary, after Stevens Village there remains no question that Venetie's organization under the IRA is alone insufficient to support a finding of sovereignty. Moreover, ANCSA, the most far-reaching federal legislation ever to affect Alaska Natives, reveals Congress' express intent that no Native Alaska group other than the Metlakatla Indian community may be entitled to sovereign tribal status. Congress envisioned state regulatory authority over almost all Native-owned lands and Native corporations, and mandated involvement by the state in the affairs of all Native villages. Federal trusteeship and reservations were terminated, and permanent racially-defined institutions were abolished. Because there is nothing in the language or legislative history of ANCSA which remotely suggests that Congress intended IRA villages to have a governmental role over the lands conveyed under ANCSA, I would accord Venetie no such role. I would hold that neither the Tribal Government nor the Village Corporation is entitled to sovereign immunity.

Venetie argues that the Stevens Village court analyzed ANCSA for purposes of confirming that it does not confer federal recognition of tribal status where none existed prior to passage of the Act. Venetie contends that the court did not conclude that ANCSA revoked tribal status where it did exist prior to the Act. Venetie also claims that any sovereign immunity it may have can be waived only if it is clear from the unambiguous language of ANCSA and its legislative history that Congress intended such a waiver. See Bryan v. Itasca County, 426 U.S. 373, 392-93, 96 S.Ct. 2102, 2112-13, 48 L.Ed.2d 710 (1976) (a congressional determination to terminate an Indian reservation must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history); Atkinson, 569 P.2d at 167 (sovereign immunity of the Metlakatla Indian Community was waived only if the clear and unambiguous language of the statute and its legislative history show Congress intended such a waiver). Venetie contends that ANCSA is not sufficiently unambiguous to justify my conclusion today.

I recognize that certain federal authority exists for the proposition that ANCSA contains no expression of congressional intent to alter the tribal status of Alaska Indian villages. Nonetheless, I disagree with this line of federal authority because I see no possible way to reconcile the spirit and the terms of ANCSA with concepts of tribal sovereignty in Alaska. As demonstrated above, many provisions of the Act are at outright odds with any finding of sovereignty. I therefore conclude that ANCSA constitutes an express indication of Congress' will that, with the sole exception of the Metlakatla Indian Community, any sovereign status held by Alaska Native groups prior to 1971 be terminated.