Joaqlin Estus
ICT
ANCHORAGE, Alaska — The state of Alaska is suing Assistant Secretary of Interior Bryan Newland over whether the federal agency can take land into trust in Alaska, that is, whether tribes can transfer title to the federal government to hold land for the tribe’s benefit. The state said the Alaska Native Claims Settlement Act of 1971 (ANCSA) ended the Interior’s ability to do so.
“The purpose of the case is to receive unambiguous legal clarity for the State, local governments, the tribes and all Alaskans, on the question of placing Native land into federal trust for the tribes,” said Gov. Mike Dunleavy in a prepared statement. The state said the Interior department’s decision to take land into trust limits the state’s sovereign jurisdiction in Alaska and undermines key terms of the Alaska Native Claims Settlement Act.
However, Lloyd Miller, an attorney who specializes in tribal law, said there’s no confusion; the question’s been raised before and settled in federal court.
“I don’t think he (the governor) is really asking for clarification. He just doesn’t like that he lost and he wants to play the game again, in the courts, in the hopes of a win. This is why it strikes me as somewhat abusive of the legal process to not accept the loss they suffered in the courts,” Miller told Alaska Public Media host Lori Townsend on the radio show, “Talk of Alaska” on Feb. 28.
At issue is a 787 square foot plot of land, about the size of a driveway, in Juneau. Title to the land was transferred from the Central Council of Tlingit and Haida Indian Tribes of Alaska to the Interior department on Jan. 10.
The Indian Reorganization Act of 1936 authorized federal recognition of tribes and the federal government to take land into trust.
In 1971, ANCSA authorized the transfer of almost a billion dollars and title to 44 million acres of land to for-profit Native corporations.
The Interior department, in its press release about the Juneau transfer, said, “Fee-to-trust land acquisitions, also called ‘land-into-trust,’ transfer a land title to the federal government to be held in trust for the benefit of an individual or Tribe. Acquisition of land in trust is essential to Tribal self-determination and will help maximize the Tribe’s eligibility for federal services and programs.”
However, Alaska Attorney General Treg Taylor said, “ANCSA was a compromise that was meant to avoid the Lower 48’s reservation system in Alaska. Congress meant for Alaska to be different.”
Following ANCSA, an Interior solicitor in 1978 issued an opinion stating the act ended the department’s ability to take land into trust in Alaska. Interior issued regulations based on that opinion and accepted no Alaska land into trust for decades.
The Native American Rights Fund, on behalf of Akiachak and three other Alaska villages, sued in 2006 saying the solicitor’s opinion was baseless. In March 2013, the Washington, D.C. district court ruled in favor of the Alaska tribes.
Miller said the judge concluded “the authority of the secretary under the Indian Reorganization Act to acquire lands in trust in Alaska had never been repealed by Congress and was still in effect.”
Since then, the state said in its complaint, the department has issued five conflicting opinions on the matter. “Two have concluded that the Secretary retains the authority to place Alaska Natives’ lands into trust, two have withdrawn prior opinions, and one has agreed—consistent with Solicitor Opinions issued in 1978 and 1993, that the Secretary lacks the authority, post-ANSCA, to take lands into trust.”
In its complaint, the state said, “Congress passed ANCSA in 1971 to settle claims of aboriginal title, to promote economic development, and to “maxim[ize] participation by Natives in decisions affecting their rights and property . . . without establishing a reservation system or lengthy wardship or trusteeship.”
However, the most recent opinion states, “The Secretary’s authority to play Alaska lands in trust derives from Section 5 of the IRA… No subsequent Congressional action repealed such authority.” This aligns with the district court ruling in Akiachak vs. Department of Interior.
The state said it also has an interest in maintaining the terms of ANCSA. The state, at the time, contributed half the cash settlement and relinquished lands it was eligible to select under the statehood act.
Putting land into trust is a time-consuming and costly venture, requiring a detailed title investigation, environmental assessment, and a typically years-long application process. Still, as Miller put it, a trust is the most secure way to hold land for future generations. Trust lands cannot be sold, taken or transferred without federal approval.
“So if a tribe is concerned about securing its land heritage for future generations, if land has particular cultural or historic or religious or other importance to the tribe, the best way to secure perpetual title in that land is to have it held in trust by the United States,” Miller said.
On Jan. 10, Central Council President Richard Chalyee Éesh Peterson, Tlingit and Haida, signed the deed to put its first first parcel of land into federal trust, the culmination of a 15-year effort. The land is within the boundaries of the historical Indian Village in Juneau, which has historic and cultural meaning to the Tlingit and Haida.
Peterson said the tribe is working to legally get back lands that were illegally taken through the years. And he says Indian Country status opens new federal funding opportunities for economic development. He went on to say the state should collaborate with tribes.
“This is a benchmark achievement in our land back initiative. After many years of waiting we finally have land that will be held in perpetuity for our Tribe, land which has been rightfully ours since time immemorial,” Peterson said. “The parcel may have a small footprint, but it is huge in terms of what this means to the Tribe. “
“The state isn’t hurt by our sovereignty. And there’s countless states that thrive and prosper right alongside their tribes,” Miller said.
Peterson said. “I am hopeful the Department of the Interior will approve our remaining applications.” The Central Council has three pending land-into-trust applications. The village of Craig, in southeast Alaska, in 2017 had an acre of land put into trust without objection by the state.
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