Monday (Aug. 15), Alaska Attorney General Jahna Lindemuth announced she will drop an appeal in a case involving increased tribal jurisdiction through placement of tribal lands into trust.
Trust status transfers title to those lands to the federal government, and protects the land from taxation or seizure for debt. It gives tribes greater jurisdiction and access to federal funding. Trust lands include reservations. They’re a long-standing and common feature of land management for lower 48 tribes.
But trust lands are scarce in Alaska due to a 1970s Department of Interior opinion saying trust status conflicts with the Alaska Native Claims Settlement Act of 1971, or ANCSA. Related regulations banned Alaska tribes from putting lands into trust. In 2006 four tribes and one individual sued to force the Interior department to accept trust land applications from Alaska tribes. The state of Alaska intervened in the case, saying allowing tribes to put land into trust would diminish state sovereignty. It later appealed a D.C. district court ruling in favor of the tribes.
Many Alaska Native leaders saw those state actions as delaying tactics and as examples of harassment by lawsuit. For one thing, the state appealed over regulations that had been replaced, making it unlikely the U.S. Supreme Court would have heard the appeal and likely to leave standing the D.C. district court ruling. Tribal leaders also say the case was one in a series of costly, time-consuming, and unsuccessful lawsuits against tribes the state had launched over the years.
While campaigning for office, Gov. Bill Walker pledged to change that approach. Native American Rights Fund attorney Heather Kendall Miller says by dropping this latest appeal, the Governor is changing the state’s direction.
“It’s hugely significant,” said Kendall Miller. “It’s a major shift in state policy. All prior administrations, going back decades, have opposed tribal sovereignty and Indian Country specifically in Alaska. The fact that this Governor is now open to sit down and talk about Indian country in Alaska and greater tribal authority to govern their own communities is a big, big deal.”
Alaska Department of Law spokesperson Cori Mills says the state is going to meet with stakeholders to talk about the scope of federal, state and tribal powers in trust lands.
“They have this new regulation and we’re going to go forward and work with the federal government, work with all interested stakeholders in Alaska and see how Alaska’s unique circumstances can fit into the lands into trust process that has occurred in the lower 48,” said Mills. “We kind of have to make it our own just because of the unique situation we have here.”
Alaska’s unique situation includes state ownership of subsurface rights, for example, ANCSA, and the Alaska National Interest Lands Conservation Act. Mills says it’s not clear how well those laws will mesh with land into trust statutes.
“So the question is when you’re taking lands into trust, how do all of those federal laws on trust lands interact with the statutes that determine how the state functions, and the state’s relationship with the federal government, and the state’s relationship with the land and fish and game management, all of those kind of issues,” said Mills.
The Chilkoot Indian Association in Haines is one of the plaintiffs in the case. Speaking to KHNS in July, Tribal Administrator Harriet Brouillette said the changes are not as momentous as some may fear.
“I would hope that people are not fearful of the changes that this is going to bring to the state," said Brouillette. "I know people think this will change the way people hunt and fish in the state, but it’s not. A lot of time in Indian Country when tribes are sovereign entities and they write their own laws, they’re usually not that much different than what the United States or the State of Alaska laws are. So I don’t think this is going to cause a huge upheaval in the state of the Alaska like some people are thinking it is.”
The Department of Interior can begin considering applications to take Alaska lands into trust on August 22, 2016.