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Alaska governor pursues appeal in landmark land-into-trust case

Tuesday, August 25, 2015

Alaska Gov. Bill Walker (I), right, and Lt. Gov. Byron Mallott (D), who is Alaska Native. Photo from Facebook

Alaska Natives who were hoping a change in leadership would usher in a new era in tribal-state relations saw their dreams dashed when Gov. Bill Walker (I) on Monday moved forward with an appeal in a landmark land-into-trust case.

After Walker took office with his Native running mate Byron Mallott at his side, he delayed action on Akiachak Native Community v. Department of Interior to consider the ramifications of fighting tribes that want to assert more sovereignty over their own lands. He met with Native leaders in the affected communities just two weeks ago as he faced a deadline in the case.

But even though Attorney General Craig Richard acknowledged both "good elements and bad elements" of placing land into trust, Walker's administration concluded that the lawsuit must continue. An opening brief was filed with the D.C. Circuit Court of Appeals yesterday, ensuring that tribes in the state might not be able to take advantage of a process that has been used in the lower 48 for more than 80 years.

“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,” Richards said in a press release. “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."

A view of the Akiachak Native Community, the lead plaintiff in a lawsuit that prompted the Obama administration to include Alaska tribes in the land-into-trust process. Photo from Calista Corporation

The law at issue is the Alaska Native Claims Settlement Act of 1971. The brief argues that law forecloses the creation of a "reservation system" similar to that in the lower 48.

The federal government made the same argument when the Akiachak Native Community and other Native plaintiffs filed the suit during the Bush administration. But even before that, the Bureau of Indian Affairs for decades cited the law in refusing to allow Alaska tribes to participate in the land-into-trust process.

Judge Rudolph Contreras, however, rejected that line of thinking when he ruled for the Native plaintiffs in 2013. He said the settlement only pertains to land claims and does not preclude Alaska tribes, just like any other in the lower 48, from having lands placed in trust.

The decision was a major victory for the 49th state's original inhabitants. In a sign of a change in leadership in Washington, D.C., the Obama administration declined to appeal and the BIA developed a land-into-trust rule that includes Alaska tribes for the first time.

Richard Peterson, the president of the Central Council of the Tlingit and Haida Indian Tribes of Alaska. Photo from Facebook

The regulation, though, is on hold pending resolution of the state's appeal. The process will take several more months to resolve, putting off the ability of tribes to exercise more self-determination over the lands on which they have lived for centuries.

"Dozens of states south of the 48th parallel have survived and thrived with tribal trust land within their borders. In fact, tribal trust land can create a win-win situation for both tribes and neighbors," Richard Peterson, the president of the Central Council of the Tlingit and Haida Indian Tribes, said in The Alaska Dispatch News this month. "With proper management, it invites economic development activity, as well as federal and private-sector investment, which has been overlooked in Alaska for far too long."

The state's decision comes as Alaska Natives prepare to welcome President Barack Obama to their homeland next week. His administration has sought parity for Alaska tribes not just on land-into-trust but on other issues, including jurisdiction over non-Indian domestic violence offenders.

Alaska was excluded from the historic tribal provisions of the Violence Against Women Act of 2013. After Vice President Joe Biden called attention to the oversight at the White House Tribal Nations Conference last December, Congress passed S.1474, the Alaska Safe Families and Villages Act, to ensure tribes can exercise their authority.

Vice President Joe Biden speaks at the White House Tribal Nations Conference on December 3, 2014. Photo from VP Biden / Twitter

With trust land, advocates believe tribes will be an even stronger position to protect their women, who suffer from the highest rates of domestic violence in the state and in the nation.

"Trust land in Alaska can open up new streams of funding and training for rural public safety, law enforcement, victim services, justice and rehabilitation," law professor Sarah Deer, who won a MacArthur Foundation genius grant for her efforts to prevent violence against Native women, wrote for The Alaska Dispatch News in an opinion co-authored by David Voluck, a tribal court judge.

Relevant Documents:
Dear Tribal Leader Letter from Kevin Washburn (April 30, 2014)

District Court Decisions:
Akiachak Native Community v. Jewell (September 30, 2013)
Akiachak Native Community v. Salazar (March 31, 2013)

Federal Register Notice:
Land Acquisitions in the State of Alaska (December 23, 2014)