Huge Win for Alaska Tribes: No Appeal from State of Alaska in Land-into-Trust Case
August 17, 2016
“It’s important to acknowledge Governor Walker and Attorney General Lindemuth’s courage to move on from this decade long litigation,” said Central Council of the Tlingit and Haida Indian Tribes of Alaska" President Richard Peterson. “You’ve acted in the best interest of Alaska Natives and the State of Alaska as a whole. I also want to express my deep gratitude to the Akiachak Native Community, Chalkyitsik Village, Chilkoot Indian Association, Tuluksak Native Community (IRA), and Alice Kavairlook for challenging the Department of Interior’s exclusion of Alaska tribes in court. Central Council looks forward to working with the State alongside our Alaska Native brothers and sisters to implement the land-into-trust policy and build a new age of tribal and state collaboration.”
Trust lands are a cornerstone of federal Indian policy and are the key to federal and private sector funding and investment. Given our State’s fiscal challenges, tribal trust land is just one more solution to Alaska’s budget crisis. The ability for Alaska tribes to petition for trust land acquisition maximizes tribal government resources, eligibility for federal programs and services, and fosters economic development. It will help address public safety and child welfare issues, protect historic homelands and cultural sites, and expand funding for services, education, and housing.
Land-into-trust presents a multitude of advantages for the State and Alaska tribes, but overall it’s about tribal self-determination and the right for Alaska tribes to weigh the advantages and disadvantages of trust lands for themselves and their communities.
The U.S. Department of Interior will begin accepting applications to take land-into-trust starting August 22, 2016. Federally recognized tribes can apply for land into trust by petitioning the Secretary of the Interior to take the land into trust specifically for the benefit of the tribe and its tribal citizens. Applications can be submitted to the Bureau of Indian Affairs and the land must qualify under federal Indian laws, historic preservation, and environmental laws.
Central Council of the Tlingit and Haida Indian Tribes of Alaska’s said their priority will be to restore the federal protections to land previously lost. The Tribe has submitted a fee-to-trust and reservation proclamation applications for property Central Council of the Tlingit and Haida Indian Tribes of Alaska (Central Council) holds in fee and lands held in federally restricted status by individual tribal citizens of Central Council. All parcels are located within the historical and cultural area long known as the “Juneau Indian Village” and comprise the parking lot and subsurface of Central Council’s Andrew Hope Building on Willoughby Avenue.
Alaska Attorney General Jahna Lindemuth announced Monday, August 15, 2016, that the State of Alaska will not pursue further litigation in Akiachak Native Community v. U.S. Secretary of the Interior. That case affirmed the ability of the Secretary of Interior to take land into trust on behalf of Alaska Tribes and also acknowledged the rights of Alaska Tribes to be treated the same as all other federally recognized Tribes. The State’s decision to not seek Supreme Court review ends years of protracted litigation and ushers in a new era for Alaska Tribes.
The case was brought in 2006 when 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 Tribes differently from other federally recognized Tribes in the continental United States. NARF and Alaska Legal Services Corporation sought judicial review of the “Alaska Exception” which barred the acquisition of land in trust in Alaska other than for the Metlakatla Indian Community or its members. The State of Alaska intervened in defense of the regulatory bar on the basis that the differential treatment was required by the Alaska Native Claims Settlement Act (ANCSA). The District Court for the District of Columbia rejected both the Secretary and Alaska’s defense of the regulatory bar and found in favor of plaintiff Tribes on March 31, 2013.
The Secretary of the Interior and the State of Alaska both initially appealed the decision to the D.C. Circuit Court of Appeals, but on May 1, 2014, the Secretary changed course and formally proposed repealing the Alaska Exception and accepting Alaska trust petitions. The Secretary explained that the Department had come to the conclusion that the importance of trust lands for tribal self-determination, self-governance, and fulfillment of the federal trust responsibility had convinced the Secretary to adopt a new regulatory policy for Alaska. The Secretary published a final rule on December 23, 2014, concluding the “removal of the Alaska Exception is supported by both legal and public policy considerations.” The final rule removed “the categorical ban and provides for the Department to make a case-by-case determination on whether to take any given property into trust.” With the Secretary’s formal repeal of the Alaska Exception, the basis for the litigation no longer existed as the case became effectively moot.
The State of Alaska nonetheless pursued its appeal before the D.C. Circuit Court of Appeals and the case was argued March 4, 2016. A two-one majority entered an Order on July 1, 2016, that directed that the appeal be dismissed for lack of jurisdiction and the case be remanded to the District Court with instructions to vacate the judgment. The State had six weeks or until August 15, 2016 to decide whether to attempt to get a rehearing or further pursue litigation before the United States Supreme Court.
Monday’s announcement from the State of Alaska that it will forego further litigation ends a long history of state and tribal animosity and represents a significant policy shift from prior administrations that chose to vigorously litigate any assertion of tribal sovereignty. Governor Walker’s decision to work with Tribes rather than against them ushers in a new era where tribal and state officials can cooperatively work together to protect the health, safety, and welfare of Alaska’s tribal member citizens.
Given Attorney General Jahna Lindemuth’s announcement Monday morning regarding not pursuing the Akiachak litigation any further, Governor Bill Walker has tasked his administration with holding meetings with those who may be impacted by the federal government taking lands into trust.
“I have tasked the Attorney General with reaching out to the Bureau of Indian Affairs, tribes, other Native interests and organizations, commercial interests doing business in Alaska, local governments and other interested stakeholders,” said Governor Walker.
The purpose of the stakeholder meetings is to identify concerns and work collaboratively to resolve those concerns. This process will help the State comment on specific lands-into-trust applications and may result in additional federal regulations to better address Alaska’s needs.
“I support Attorney General Lindemuth’s conclusion that it doesn’t make sense to use the state’s limited resources pursuing this litigation that has already dragged on for ten years,” Governor Walker said. “Instead, we will work collaboratively with all parties to shape solutions that improve public safety, empower local communities, and protect our resources.”
“Alaska is a unique state in many ways,” said Lt. Governor Byron Mallott. “We have an opportunity to establish a new set of rules that works for our particular circumstances.
Central Council of the Tlingit and Haida Indian Tribes of Alaska (Central Council) is a tribal government representing over 30,000 Tlingit and Haida Indians worldwide. Central Council is a sovereign entity and has a government to government relationship with the United States.
Reporting & Editing by Mary Kauffman, SitNews
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