State drops appeal of tribal land into trust regulation

The state of Alaska is dropping its lawsuit over federal regulations that banned Alaska tribes from putting land into trust, calling it “dead-end litigation.” But that doesn’t mean the state sees smooth roads ahead.

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Trust status for tribal lands transfers title to those lands to the federal government, and protects the land from taxation or seizure for debt. And it gives tribes greater jurisdiction. Trust lands include reservations and are a long-standing and common feature of land management for lower 48 tribes.

But trust lands are scarce in Alaska due to a 1970s Department of Interior opinion saying trust status conflicts with the Alaska Native Claims Settlement Act. That legal interpretation meant Alaska tribes were banned from putting lands into trust until now. In 2006 five tribes and one individual sued to force the Interior to accept trust land applications from Alaska tribes. The state of Alaska intervened, saying allowing tribes to put land into trust would diminish state sovereignty.

But a DC District Court sided with tribes, ruling in 2013 the ban was arbitrary and capricious. The state is dropping its appeal of that ruling because new Interior Department regulations have since been issued allowing Alaska tribes to put lands into trust. Cori Mills is the Department of Law’s public outreach coordinator.

“They have this new regulation and we’re going to go forward and work with the federal government, work with all interested stakeholders in Alaska and see how Alaska’s unique circumstances can fit into the lands-into-trust process that has occurred in the lower 48,” Mills said. “We kind of have to make it our own just because of the unique situation we have here.

Alaska’s unique situation includes state ownership of subsurface rights, for example, and ANCSA, and the Alaska National Interest Lands Conservation Act. Mills said it’s not clear how well those laws will mesh with land into trust statutes.

“So the question is when you’re taking lands into trust, how do all of those federal laws on trust lands interact with the statutes that determine, y’know, how the state functions, and the state’s relationship with the federal government, and the state’s relationship with the land and fish and game management, all of those kind of issues,” Mills said.

Mills said Alaska may need new regulations or rules on how trust status will work here.

“Our hope is to kind of come to the table early before these applications… there’s any specific application granted,” Mills said, “so that we can work out the issues in advance instead of after the federal government has already acted on one of the applications.”

The Chilkoot Indian Association in Haines is one of the plaintiffs in the case. Speaking to KHNS in July, Tribal Administrator Harriet Brouillette  said the changes are not as momentous as some may fear.

“I would hope that people are not fearful of the changes that this is going to bring to the state. I know people think this will change the way people hunt and fish in the state, but it’s not. A lot of time in Indian Country when tribes are sovereign entities and they write their own laws, they’re usually not that much different than what the United States or the State of Alaska laws are,” Brouillette said. “So I don’t think this is going to cause a huge upheaval in the state of the Alaska like some people are thinking it is.”

Brouillette said the way she sees it, putting land into trust status simply gives tribes greater ability to take care of their land.

“What this will do is give us some sovereign authority over our own land,” Brouillette said. “So we can make decisions just like any other tribe in the Lower 48 does about how we can use our land. And like any other sovereign nation, we won’t have to ask permission from anybody but ourselves.”

In a prepared statement, Attorney General Jahna Lindemuth stated that if the state’s concerns “cannot or are not addressed by the federal government, resolution of disputes in court remains an option.”

The Department of Interior can start considering applications to take Alaska lands into trust on August 22.

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Joaqlin Estus is a reporter at KNBA in Anchorage.

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