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Alaska tribes enter new era as state drops land-into-trust battle

Tuesday, August 16, 2016

Alaska Gov. Bill Walker (I), standing left, and Lt. Gov. Byron Mallott (D), standing right, at Celebration, an Alaska Native cultural festival hosted by Sealaska Heritage Institute in June 2016. Photo from Office of Governor Bill Walker

It's official -- tribes in Alaska will finally be able to follow the land-into-trust process just like their brothers and sisters in the Lower 48.

A new era emerged as state officials made two significant announcements on Monday. First, Attorney General Jahna Lindemuth said she would stop fighting a court case that paved the way for tribes to submit land-into-trust applications to the Bureau of Indian Affairs.

"I don't see any need to use our limited resources in pursuing dead-end litigation," Lindemuth, who became the state's top legal official earlier this month, said in a press release. "While litigation remains an option, it seems more productive to come back to the table and see if the state's concerns can be addressed outside of litigation."

To that end, Gov. Bill Walker (I) said the state will convene a series of meetings to discuss the land-into-trust process. Tribes, Native organizations and other stakeholders are being invited to come together and share concerns that are likely to be unique to the state.

“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,” Walker said in a press release. “Instead, we will work collaboratively with all parties to shape solutions that improve public safety, empower local communities, and protect our resources.”

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

The announcements came only a few weeks after the D.C. Circuit Court of Appeals handed a victory to tribes in the long-running dispute. But it was unclear at the time whether more litigation in the works, especially since the decision came down to a 2-1 vote.

The state could have asked for a rehearing or it could have taken the case to the U.S. Supreme Court. But rather than wait for the clock to run out on those options, Walker's administration acted quickly to end the controversy, something that hasn't happened in prior legal scuffles.

"Governor William 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," the Native American Rights Fund, which represented the Native plaintiffs in the case, said in a statement.

For now, tribes have not rushed to the BIA with land-into-trust requests. The agency itself promised not to approve any applications while the appeal was pending at the D.C. but that hurdle was removed with the court's July 1 decision.

Alaska, though, represents a huge opportunity for the Obama administration to meet its goal of placing 500,000 acres in trust before President Barack Obama leaves office in January 2017.

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

"Since 2009, we have restored 416,000 acres to tribal ownership and we anticipate reaching the administration’s goal of restoring half a million acres," Larry Roberts, the acting Assistant Secretary for Indian Affairs, said in June.

For decades, the BIA had believed the Alaska Native Claims Settlement Act of 1971 precluded the acquisition of Indian lands in the 49th state. The NARF lawsuit resulted in the removal of the so-called Alaska exception from existing land-into-trust regulations.

The regulations do not include any Alaska-specific provisions but officials say their upcoming meetings could lead to potential changes that address the state's unique jurisdictional, cultural, infrastructure, transportation and natural resource concerns.

“We have an opportunity to establish a new set of rules that works for our particular circumstances," Lt. Governor Byron Mallott (D), who is Native, said on Monday.

The state's decision to drop the case, though, does not mean that legal challenges are off the table. The state will still be able to file administrative appeals or take the BIA to court in the event it opposes a particular land-into-trust application, Attorney General Lindemuth noted.

Lindemuth just came to her post after being nominated by Walker in late June. As an attorney in private practice, she has represented Cook Inlet Region Inc., an Alaska Native regional corporation, and was part of the team that won the freedom of the Fairbanks Four, the four Native men who spent 18 years in prison for a crime they insist they did not commit.

Alaska is home to 229 tribes, the most of any state. Prior to the victory in the NARF case, 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)