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Appeals court poses tough questions in Alaska land-into-trust case

Monday, March 7, 2016

Students at the Akiachak School in the Akiachak Native Community in Alaska. Photo from Akiachak Huskies / Facebook

A land-into-trust case whose outcome will affect more than 200 tribes was heard by a federal appeals court in Washington, D.C., on Friday.

For more than 40 years, nearly every Alaska tribe has been barred from following the land-into-trust process. The Bureau of Indian Affairs long believed that the Alaska Native Claims Settlement Act of 1971 precluded the acquisition of Indian lands in the state.

The situation changed in 2013 after a federal judge determined that the exclusion was unjustified. The settlement extinguished land "claims" but Judge Rudolph Contreras said approval of a land-into-trust application does not qualify as a land "claim."

The decision prompted the BIA to delete the Alaska exclusion from its land-into-trust regulations. The historic rule was finalized in December 2014 yet no tribe has been able to take advantage of what then-assistant secretary Kevin Washburn hailed as a "major step forward in federal policy" because it's been on hold at the request of the state.

Indianz.Com SoundCloud: D.C. Circuit Court of Appeals Oral Arguments in Akiachak Native Community v. DOI

The hold, though, might not last much longer. Although a decision could be months away, a panel of judges on the D.C. Circuit Court of Appeals appeared skeptical of the state's ability to challenge to a rule that technically does not exist.

"The complaint challenged the Alaska exception," Judge David S. Tatel said of the whole reason why four tribes and an Alaska Native individual filed the suit back in 2006. Since the Alaska exception is no longer valid, he said the state appears to lack standing, requiring the dismissal of the case.

"Isn't your dispute now with the Interior Department and its regulation?" Tatel asked.

"This case is over," he added, referring to the original 2006 complaint.

An aerial 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

J. Anne Nelson, an assistant attorney general for Alaska, repeatedly argued that the controversy remains alive despite the removal of the Alaska exception. "The regulation still exists," she told the court.

But Judge Patricia A. Millett -- who is reportedly being considered for the vacancy on the U.S. Supreme Court -- wasn't buying that line of thinking. She said the state is unhappy with the 2014 regulation, which has yet to be utilized due to the hold.

"It seems to me that's where your beef is," Millett observed, "not with a regulation that doesn't exist anymore. Am I right on that?"

Elizabeth Ann Peterson, an attorney with the Department of Justice, focused on that issue. Even if the D.C. Circuit were to overturn the judge's decision, she argued that nothing will happen because the Alaska exception is gone.

"So any reversal by this court would have no effect," Peterson said.

Sunrise in the Akiachak Native Community in Alaska, as seen from the Akiachak School. Photo from Akiachak Huskies / Facebook

Heather Kendall-Miller, an attorney with the Native American Rights Fund, also agreed with the Obama's administration's view that the state's appeal is "moot."

"My clients brought this cause of action only to address the regulatory ban ... and that ban no longer exists," Kendall-Miller told the court.

Even though the state didn't do well at the hearing, dismissing the case wouldn't end the controversy. As the judges pointed out, the state could always file a lawsuit in the event the BIA ever approves a land-into-trust application in Alaska.

Alaska is home to 229 tribes, the most of any state. Prior to the 2014 regulation, only the Metlakatla Indian Community was allowed to follow the land-into-trust process because the tribe was not covered by the Alaska Native Claims Settlement Act.

Alaska Gov. Bill Walker (I), right, and Akiachak School Principal Chris Barr in August 2015. Walker visited the Akiachak Native Community prior to announcing his decision to continue with an appeal in a closely-watched land-into-trust case that will affect more than 200 tribes in the state. Photo from Akiachak Huskies / Facebook

Many Alaska tribes welcome the land-into-trust process because it would give the federal government a greater role in their villages, where state resources are often limited. Many argue that it will lead to improved law enforcement and economic development opportunities.

"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, wrote in The Alaska Dispatch News last August.

The state intervened in the case during the administration of a prior governor. Tribes were hoping new Gov. Bill Walker (I) was going to drop the appeal but he went ahead with the challenge later in August.

Walker and Lt. Gov. Byron Mallott (D), who is Alaska Native, have otherwise tried to improve state-tribal relations since taking office in December 2014. They have sought to address child welfare issues by respecting tribal court decisions and by working directly with tribes, something that hasn't always happened in the past.

Federal Register Notices:
Land Acquisitions in the State of Alaska (December 23, 2014)
Land Acquisitions in the State of Alaska (July 1, 2014)
Land Acquisitions in the State of Alaska (May 1, 2014)

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)