Alaska Seeks Delay In Tribal Sovereignty Case

Governor Bill Walker’s administration is seeking a delay in a long-running tribal sovereignty case, saying it wants to form a working group to explore policy issues and potential alternatives to continued litigation. But the tribes’ attorney says the state’s request for a delay is just a ploy to get around its loss in court.

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In an email, Department of Law Assistant Attorney General Cori Mills said the state is looking at ways to improve the State’s relationships with tribes and would rather reach out to stakeholders before launching further into litigation. She said a six-month delay would give the new administration time to consider other options, including a Congressional remedy.

Native American Rights Fund senior attorney Heather Kendall says her clients had hoped for a different approach from the new administration:

“Obviously they’re not happy with this. The Governor had indicated before the election that he would consider dropping the litigation altogether,” Kendall said. “This is clearly not the case based upon his recent actions. What he apparently is trying to do is put the case into limbo so he can look at potential Congressional alternatives, looking for a political fix.”

At issue is whether Alaska tribes have the same rights as Lower 48 tribes to put land into trust –a protected status that exempts lands from state jurisdiction, including taxation. In the 1970s, the Department of Interior Solicitor’s office issued an opinion that Congressional intent, as expressed in the Alaska Native Claims Settlement Act, was that Alaska Native tribes not be allowed to put land into trust.

Four tribes and several individuals filed suit, and in 2013, the Washington, D.C. federal district court ruled that Alaska Native tribes retain their right to place lands in trust under the authority granted by Congress in the Indian Reorganization Act of 1934.

In its motion requesting the delay, the state stated it has a good chance of winning its appeal of that ruling.

But Kendall says tribes won a solid court ruling that agrees with the tribes on all counts, and has the federal government on their side. She says the state is just trying to delay the results of a ruling it has little chance of winning on appeal.

“The state is seriously unlikely to succeed on the merits of an appeal and that is why the state has now shifted ground and asked to suspend the briefing in the appeal itself,” Kendall said.

Following the 2013 ruling, the Department of Interior issued final regulations allowing the Secretary to consider proposals to take lands into trust for Alaska tribes. The court directed the agency not to act on the petitions until appeals are decided.

Kendall says the tribes and individuals who brought the case should not have to endure further delay in final resolution of the issues, which have been pending in court since 2006.

“There have been several tribes that have applied and have petitions actually before the Secretary for consideration and who knows but it’s very possible the secretary is in the process of considering those petitions,” Kendall said. “I want to be clear in that although it may take a while for the Secretary to act upon those petitions once the stay is lifted, there are active petitions before the secretary even now.”

The district court may deny the state’s motion, allow a delay of six months or a delay of some period of time less than six months.