Law | National | Trust

Tribes in Alaska celebrate long-awaited victory in trust land case

Monday, July 4, 2016

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

A federal appeals court on Friday cleared the way for Alaska tribes to participate in the land-into-trust process for the first time in history.

For decades, the Bureau of Indian Affairs refused to process land-into-trust applications submitted by tribes and individuals in the state. The agency long believed that the Alaska Native Claims Settlement Act of 1971 precluded the acquisition of Indian lands there.

The landscape changed when a federal judge sided with four tribes and one Native individual and ruled that the exclusion was not supported by law. The BIA subsequently issued a new rule that opened the land-into-trust process to the 49th state.

But the state of Alaska, whose officials intervened in an earlier stage of the litigation, wouldn't accept the result. That led to a round of arguments before the D.C. Circuit Court of Appeals in March, during which a panel of judges wondered whether they had anything to resolve.

By a 2-1 vote, the judge concluded there indeed was no controversy. Since the BIA officially deleted the Alaska exception, the state can't challenge a non-existent regulation.

"In sum, once the Department of Interior rescinded the Alaska exception, this case became moot," Judge David S. Tatel wrote for the majority.

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

The court's decision won praise from the Native American Rights Fund. The non-profit has been representing the Alaska Native plaintiffs since 2006.

“Today’s decision is an important victory for all Alaska tribes," staff attorney Heather Kendall-Miller said in a press release. "Nearly a year ago the state of Alaska decided to appeal this case and continue its fight to treat Alaska tribes differently than tribes in the rest of the country. We sincerely hope that fight ends today.”

But the court pointed out that the controversy isn't entirely over. The state can challenge the new rule or file a lawsuit in the event the BIA approves a land-into-trust application in Alaska.

The Obama administration has been eager to take action in light of the BIA's goal to have 500,000 acres placed in trust before President Barack Obama leaves office in January 2017 -- the agency is about 84,000 acres away from reaching the milestone. A stay had been imposed by the federal judge handling the case but the D.C. Circuit's decision removes that hurdle.

The state could ask the D.C. Circuit to rehear the case before a larger panel of judges. An appeal to the U.S. Supreme Court is also possible and it would represent the first major land-into-trust challenge since the disastrous Carcieri v. Salazar decision that undermined the BIA's ability to acquire lands for newly recognized tribes.

The administration of new Gov. Bill Walker (I) has sought to improve the state's relationship with the first Alaskans. Further appeals could complicate those efforts.

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.

D.C. Circuit Court of Appeals Decision:
Akiachak Native Community v. Department of the Interior (July 1, 2016)

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)