Tribal Trust Lands: State Files Opening Brief in Akiachak Appeal
August 27 2015
Whether or not the federal government should be able to take lands into trust in Alaska presents complex policy issues for Alaska Tribes, the State, and all Alaska citizens. This would lead to areas of "Indian country" in Alaska where tribal governments and courts would have authority to create their own laws and justice systems. Quoting an Alaska Department of Law news release, the department "received numerous comments on both sides of the issue, illustrating the interest and passion that surrounds this topic". “Many of the comments I received, whether pro or con, made good points. It is clear that there are good elements and bad elements about the creation of trust lands in Alaska for both the Tribes and the State,” said Alaska Attorney General Craig Richards. “But ultimately this is a fundamental change to a law that has been in place for over 30 years, and a change of that magnitude requires thorough and deliberative dialogue that can’t occur in just a matter of months. The current legal question will continue before the courts, but the State’s policy position will also continue to develop in dialogue with the citizens of Alaska, including Tribes.” When the federal government takes land into trust, it holds it for the benefit of an individual Alaska Native or a Tribe. It is the federal government’s position that this land becomes Indian country - a legal status that can be likened to an Indian reservation. Currently, Alaska has only one reservation - the Metlakatla Indian Community’s reservation on the Annette Islands Reserve in Southeast Alaska. Indian reservations are generally exempt from state jurisdiction, including taxation, except when Congress specifically authorizes such jurisdiction. According to the Alaska Department of Law, if lands are put into trust in Alaska, the exact scope of federal, state, and tribal powers on trust lands would be played out as specific factual scenarios develop. Alaska would retain some civil and criminal powers over trust lands because Alaska is a P.L. 280 state. But generally, the federal government has the power to manage tribal and individual land that it holds in trust. The federal government will potentially have powers to approve and cancel leases of tribal trust land; as well as to govern the leasing of mineral resources (including oil and gas), regulate certain fishing activities, manage timber resources, issue grazing permits, and deal with certain water rights and irrigation matters on trust land. And Tribes have jurisdiction over civil and regulatory matters occurring on trust land. Gaming can occur on certain trust land in accordance with the Indian Gaming Regulatory Act. The legal question currently before the D.C. Circuit Court of Appeals is whether the Alaska Native Claims Settlement Act prohibits the federal government from taking lands into trust in Alaska. This lawsuit, Akiachak Native Community v. Salazar, was filed in 2006 by four Tribes and one individual challenging a longstanding “Alaska exception” to the regulations governing the creation of trust land. Background: Until the D.C. District Court’s 2013 decision invalidating the Alaska exception, the Alaska exception had been in place ever since the trust land regulations were published in 1980. Alaska was singled out in the regulations because of the unique land claims settlement enacted by Congress in the Alaska Native Claims Settlement Act (ANCSA). ANCSA revoked all reservations in Alaska (except the Metlakatla Indian Community of the Annette Island Reserve) and disavowed “creating a reservation system or lengthy wardship or trusteeship” in Alaska. ANCSA did not provide land to Alaska tribal governments. Instead, ANCSA provided 44 million acres of fee land and nearly one billion dollars ($962.5 million) in state and federal money to state-chartered regional and village Native corporations. In 2006, the Akiachak Native Community, the Chilkoot Indian Association, the Chalkyitsik Village Council, and the Tuluksak Native Community IRA, represented by Native American Rights Fund (NARF), brought suit in the U.S. District Court for the District of Columbia seeking judicial review of 25 C.F.R. Part 151 as it pertains to federally-recognized tribes in Alaska. This federal regulation governs the procedures used by Indian tribes and individuals requesting the Secretary of the Interior to acquire title to land in trust on their behalf. At the time, the regulation bared the acquisition of land in trust in Alaska other than for the Metlakatla Indian Community or its members. After full briefing, but nearly three years of no action by the federal court, the case was transferred to Judge Rudolph Contreras. Judge Contreras issued an order on April 30, 2012, requesting that the federal government respond to six additional questions in a supplemental brief. The government filed its supplemental brief on July 11, 2012, and Plaintiff Akiachak Native Community, et al. filed its reply brief on August 15, 2012. On March 31, 2013, Judge Contreras issued his order granting Plaintiffs complete relief on all of their claims – a major victory for Alaska tribes. Briefing on remedies was concluded and a memorandum order was entered on September 9, 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 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 from considering specific applications or taking lands into trust in Alaska until resolution of the appeal. The U.S. Department of the Interior published its final rule on Alaska trust acquisitions on December 18, 2014. The case remains on appeal before the D.C. Circuit Court of Appeals.
Edited by Mary Kauffman, SitNews
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