Alaska Tribes Win Trust Lands Appeal Before D.C. Circuit Court
July 04, 2016
In Akiachak Native Community, et al. v. Department of Interior, et al., the court held 2-1 that the Department of Interior’s revision of its land into trust regulations rendered the case moot. Of the decision Native American Rights Fund (NARF) Staff Attorney Heather Kendall Miller said, “[Friday's] decision is an important victory for all Alaska Tribes. Nearly a year ago the State of Alaska decided to appeal this case and continue its fight to treat Alaska Tribes differently than Tribes in the rest of the country. We sincerely hope that fight ends today.” Miller is a senior NARF staff attorney in the Anchorage office. She is a lawyer, teacher, and mentor, her legal experience includes cases involving subsistence, tribal sovereignty, human rights, and taxation. History of the Case Friday’s decision is a historic victory for Alaska Tribes ten years in the making according to the Native American Rights Fund. In 2006, four Tribes and one Native individual - the Akiachak Native Community, Chalkyitsik Village, Chilkoot Indian Association, Tuluksak Native Community (IRA), and Alice Kavairlook - brought suit challenging the Secretary of the Interior’s decision to leave in place a regulation that treated Alaska Natives differently from other Native peoples. On behalf of their clients, the Native American Rights Fund and Alaska Legal Services Corporation sought judicial review of 25 C.F.R. § 151 as it pertained to federally recognized Tribes in Alaska. This federal regulation governs the procedures used by Indian Tribes and individuals when requesting the Secretary of the Interior to acquire title to land in trust on their behalf. The regulation barred the acquisition of land in trust in Alaska other than for the Metlakatla Indian Community or its members. Plaintiffs argued that this exclusion of Alaska Natives - and only Alaska Natives - from the land into trust application process was void under 25 U.S.C. § 476(g), which nullifies regulations that discriminate among Indian Tribes. The State of Alaska intervened to argue that the differential treatment is required by the Alaska Native Claims Settlement Act (ANCSA). In March 2013, the District Court for the District of Columbia agreed with Plaintiffs on all counts and affirmed the ability of the Secretary of Interior to take land into trust on behalf of Alaska Tribes, while also acknowledging the rights of Alaska Tribes to be treated the same as all other federally recognized Tribes. Briefing on remedies was concluded and a memorandum order was entered in September 2013 denying the State of Alaska’s motion for reconsideration, and severing and vacating Part 1 of 25 C.F.R. 151. Appellants filed their notice of appeal shortly thereafter. On May 1, 2014, the U.S. Department of the Interior published a new proposed rule addressing the acquisition of land into trust in Alaska. Specifically, the proposed rule deleted the provision that excluded trust acquisitions in the State of Alaska. Following the notice of rule-making, the State of Alaska filed a motion to stay the rule-making pending appeal. On June 6, 2014, the court issued an order granting in part and denying in part the State of Alaska’s motion to stay pending appeal. The court found that the state would suffer no harm from allowing the rule-making to proceed, but granted the stay in part to prevent the Department of Interior from considering specific applications or taking lands into trust in Alaska until resolution of the appeal. On December 18, 2014, the Interior Department published its final rule rescinding the “Alaska Exception,” which became effective on January 22, 2015. 79 Fed. Reg. 76888. On January 14, 2015, the State of Alaska moved to suspend briefing in its appeal, to “explore a range of policy options on this issue and related tribal issues in Alaska, including potential alternatives to continuing this litigation.” The Court granted the stay, as well as an additional 30-day extension of time. On August 24, 2015, the State of Alaska nonetheless filed its Appellate brief. The Department of Interior filed a motion to dismiss on October 7, 2015, on the ground that the Secretary’s rescission of the “Alaska Exception” mooted the case. On December 3, 2015, NARF and the Department of the Interior each filed their response briefs. The State of Alaska filed its reply brief shortly before the Christmas holiday and a three judge panel of the D.C. Circuit Court heard oral argument in the case earlier this year on March 4, 2016. Friday’s decision from the D.C. Circuit Court will allow Alaska Tribes to begin petitioning the Secretary of Interior to have their tribally-owned fee lands placed into trust status. With such status, Alaska’s tribal governments will have the opportunity to enhance their ability to regulate alcohol and generally protect the health, safety, and welfare of tribal members. History of Trust Land Under the 1934 Indian Reorganization Act, the federal government and tribes could place more land into the trust to protect and improve Native American reservations and resources. This land could be purchased by tribes or acquired from federal surplus lands. Since 1934, the Department of the Interior (DOI) has returned approximately 9 million acres of land within boundaries of existing reservations back into the trust. This is only about 10 percent of the total amount that was lost to tribes under the Dawes Act of 1887. Currently, there are 566 federally recognized tribes that hold more than 50 million acres of land, which is approximately 2% of the United States.
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