FAIRBANKS — Alaska Native groups cheered earlier this month when an appeals court ruled Alaska tribes can petition to place lands in federal trust, but not everyone thinks the decision is a move in the right direction.
Opponents have raised myriad concerns, such as exemption from local taxation and civil regulation and the potential disruption of natural resource access and management.
One of the biggest worries is the way the U.S. Bureau of Indian Affairs handles federal land trust applications, a process opponents say is basically a black hole of regulatory authority wielded with little legal oversight.
Some argue what they see as an even more important point: putting Native lands in federal trust will harm tribal self-determination.
On July 1, the long-running issue reignited when the U.S. Court of Appeals for the District of Columbia sided with the villages of Akiachak, Chalkyitsik and Tuluksak in their fight to be able to apply to put lands in federal trust.
Sara Taylor, the former executive director of the Alaska Citizen’s Advisory Commission on Federal Areas, said the commission has stringently opposed such a decision, holding the opinion that the Alaska Native Claims Settlement Act not only removed what tribal reservations existed in Alaska at the time but also blocked future attempts to create them.
After the passage of ANCSA in 1971, the U.S. Department of the Interior updated its regulations to say the act disallowed the federal government from accepting land trust applications from within Alaska.
“There was an understanding as to what that would mean,” Taylor said. “It would not be the IRA (Indian Reorganization Act). We were not going to have reservations.
“The state is a party to that settlement. If it was a settlement, then this action by the federal government, it undermines that settlement.”
Proponents of placing lands in federal trust, however, say it was the Interior Department’s interpretation of ANCSA — through its own regulations — that precluded such action, not the law itself.
So, in 2013, when a lower court ruled against the Interior Department, the department decided not to appeal but instead simply change its regulations to allow Alaska tribes to apply to have their lands put into federal trust.
The state later stepped in to appeal on Interior’s behalf. The state lost its appeal July 1, but it lost because its case was deemed moot. It did not lose on the merits, and, in fact, the appeals court overturned the lower court’s earlier decision, but Interior had already changed its regulations.
Trusting federal trust
Beyond the legal tangle of what does or doesn’t conflict with ANCSA or what might be good or bad for the state as a whole, some people on opposite ends of the debate actually share the same fundamental motivation: desire for tribal self-determination.
Taylor, whose position with the Alaska Citizen’s Advisory Commission on Federal Areas was removed from the state budget by Gov. Bill Walker, said placing land in federal trust would be one of the biggest steps backward Alaska tribes could take.
Taylor grew up on federal trust land, in Kayenta, located in the Navajo Nation in northern Arizona.
“I saw what reservation policy was like in the ’70s and ’80s, and it will be that way again. It can be so easily,” Taylor said. “It’s better now obviously, but it can be bad again in a heartbeat, in a blink.”
Taylor said, in her mind, Alaska Natives are in a better position than Native Americans in the rest of the country because Alaska Natives own their land through corporations they control as shareholders, a system created under ANCSA. They own their land outright, unlike many Native Americans in the Lower 48 whose tribes own their lands through federal government trust.
According to Taylor, the very idea of federal trust land reeks of paternalism. Although owning land in federal trust would designate tribes’ land as “Indian country,” which provides them certain sovereignty regarding taxation and civil and criminal litigation, it also makes them beholden to regulations from the Bureau of Indian Affairs.
There are also the concerns about how this might affect nearby non-Native areas, according to Donald Mitchell, a former vice president of the Alaska Federation of Natives and author of two books dedicated to ANCSA.
Mitchell said if a tribe were to buy, say, the Sheraton Hotel in downtown Anchorage and then get the land approved for federal trust, then the municipality of Anchorage would lose all of the tax income from the hotel.
Such a situation might seem unlikely, and could even be unlawful, but Mitchell said similar situations have occurred outside Alaska. The uncertainty of such an outcome points to another major problem with allowing federal trust lands in Alaska, Mitchell said: Namely, no one knows what is and isn’t allowable because approval is all controlled within the Bureau of Indian Affairs bureaucracy.
At its most basic level, ANCSA was designed to support self-determination in a way previous Native American legislation had not. In December 1971, U.S. Rep. Nick Begich of Alaska said the act would allow Alaska Natives to make social, economic and cultural choices independently.
In the 1960s, former AFN President Emil Notti told a U.S. Senate committee, “I stand here before you to state in the strongest terms possible that the representatives here today ... do not want paternal guidance from Washington, D.C.”
Nearly 50 years later, the AFN stood behind Akiachak, Chalkyitsik and Tuluksak in their attempt to put lands into federal trust.
Jeffrey Silverman, a spokesman for AFN, said no one from the Native organization could comment on the Akiachak ruling. However, in 2013, AFN President Julie Kitka told the Secretarial Commission on Indian Trust Administration and Reform that acquiring land in trust would be a significant aid to tribal self-determination.
Kitka made that claim, in part, she said, because of Alaska Native tribes’ frustration with the state’s refusal to recognize tribal jurisdiction. In the past, federal courts have ruled that ANCSA land does not qualify for the designation “Indian country,” a specific legal definition that guarantees certain rights and jurisdiction.
“The lack of recognized geographic delineation of tribal government jurisdiction frustrates Alaska’s tribes’ ability to fulfill needed governmental functions in rural Alaska,” Kitka said.
Seeking solutions
Proponents of federal trust land say clearer geographic jurisdiction and federal funding could have a great impact on alcohol control and other problems that have plagued parts of rural Alaska.
For many rural communities, law enforcement is handled by a handful of Alaska State Troopers hundreds of miles and at least several hours away by plane.
Evidenced by Kitka’s 2013 remarks, this lack of defined geographic jurisdiction has led Alaska tribes to fight for recognition well past the moment ANCSA became law.
“Tribes, left without any land, struggled for recognition and definition of their political existence and jurisdiction,” she said.
Mitchell said he doesn’t know how to solve law enforcement problems in rural Alaska but believes putting land in federal trust is not the right way.
“One of the great ironies in all this ... is the reason ANCSA was done the way it was done was because they were trying to get out from under the thumb of BIA bureaucracy,” Mitchell said. “Now everybody seems to want to put their head back into the noose.”
Neither of Alaska’s two Republican Senators, Dan Sullivan and Lisa Murkowski, would comment on the Akiachak ruling or on tribes putting lands in federal trust in general.
Contact staff writer Weston Morrow at 459-7520. Follow him on Twitter: @FDNMschools.