Law | Opinion | Trust

Opinion: Alaska will lose appeal in BIA land-into-trust lawsuit

Wednesday, September 2, 2015

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

Attorney Donald Mitchell, whose efforts against tribal sovereignty have earned him comparisons to the Ku Klux Klan, doesn't think the state of Alaska will win a lawsuit over a land-into-trust rule finalized by the Bureau of Indian Affairs:

Unfortunately, the brief is a disorganized rehash of the legal arguments drawn from the text of ANCSA that Judge Contreras had found unpersuasive. But even worse, the brief informs the U.S. Court of Appeals that “There are 229 federally-recognized tribes in Alaska, nearly half of the 567 tribes recognized nationwide.” So the brief concedes that Judge Contreras was correct when he concluded that the sentence in the 1980 regulations that is the subject of the lawsuit is invalid if it is inconsistent with 25 U.S.C. 476(g), which it is.
As a litigation strategy, that gratuitous concession is astounding in its failure to vigorously defend the state of Alaska’s interest in an appeal that, when he prohibited the secretary of the Interior from taking title to any land in Alaska into trust until the appeal is decided, Judge Contreras said had the potential to inflict “irreparable harm to state sovereignty.”
After reading Attorney General Richards’s brief, my prediction is that the state loses its appeal.
If it does, then what happens?
Last December, Kevin Washburn, the present assistant secretary of the Interior for Indian affairs, amended the regulations that govern the implementation of section 5 of the IRA in the forty-eight coterminous states by removing the sentence that prohibited the secretary of the Interior from taking title to land in Alaska into trust (which raises the question of whether that action mooted the state’s appeal). As of last February, the BIA’s Alaska area office had begun processing applications that request the secretary to take title to more than 100,000 acres of land in Alaska into trust. Where all that land is located is unclear. But the Ninilchik Village Tribe wants 2.3 acres, the Chilkoot Indian Association wants 52 acres (presumably in Haines), and the Tlingit Haida Central Council wants two parcels (presumably in Juneau).
When Attorney General Richards loses the state’s appeal, and the assistant secretary of the Interior -- aka Kevin Washburn -- begins taking title to all of that land into trust, what are the remaining options to prevent that from happening?

Get the Story:
Donald Craig Mitchell: Taking Alaska tribal land into trust: How did it happen? What can be done? (Alaska Dispatch News 9/1)

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)