Potential rule change could allow Alaska tribal land into trusts

The U.S. Department of Interior has proposed a rule change that would allow Alaska tribes to ask the federal government to hold their lands in trust.

The decision isn’t always granted, but yesterday’s announcement is a legal turn that could vastly expand tribal sovereignty in Alaska.

Tribal advocates are celebrating the Department’s announcement. Native American Rights Fund Attorney Heather Kendall-Miller says it corrects a wrong-headed policy that excluded Alaska tribes from an important tool of self-governance.

“This is huge. It is a major shift in federal policy that treats Alaska tribes similarly to tribes in the Lower 48,” Kendall-Miller says.

If the federal government agrees to take a tribe’s land in trust, it in effect creates a patch of Indian Country, where state jurisdiction is limited and tribes can have law enforcement powers. The Interior Department cites the rule as a way to improve public safety in Alaska villages.

The rule would apply only to lands owned by tribes, not the millions of acres owned by Alaska Native corporations. Kendall-Miller says most Native villages sit on a patchwork of different types of land, so the rule change is limited in creating village-wide tribal law enforcement.

“Clearly it’s not going to wind up being the panacea to fix all problems in rural Alaska, but it very well may be a potential model that would work for some communities,” Kendall-Miller says.

Kendall-Miller won a federal district court case last year arguing the secretary is allowed to take Alaska tribal lands in trust. Anchorage attorney Don Mitchell, an ardent opponent of Alaskan tribal sovereignty, says creating trust status for tribally owned land conflicts with the 1971 Alaska Native Claims Settlement Act.

“It certainly is rolling back ANCSA, and that’s exactly why the proponents of this change have persuaded their friends within the Department of Interior to do this,” Mitchell says.

Mitchell says the implications could be enormous, because any land owner, including Native corporations, could transfer lands to an Alaska tribe, and those lands could become in effect, an Indian reservation.

With ANCSA, Congress agreed to transfer millions of acres and nearly one billion dollars to newly created Native corporations. The state of Alaska, like Mitchell, contends the settlement was Congress’s rejection of creating Indian reservations across Alaska. The state is appealing the court decision that paved the way for the proposed policy change. Kip Knudson, who runs Gov. Sean Parnell’s Washington, D.C. office, says it’s important to defend the integrity of the 1971 settlement act.

“I mean, it’s sort of the underpinning of our land status in the state and it’s an underpinning of a tremendous amount of economic activity in the state, and so if we start unraveling it or amending it, there’s probably a lot of things that have to be taken into consideration,” Knudson says.

Kendall-Miller says Congress never took away the Interior secretary’s power to accept Alaska tribal land in trust. The announcement today seemed to split Alaska’s two U.S. senators.  Mark Begich said it would improve tribal self-determination, while Lisa Murkowski said she had questions about breaking established policy. The Interior Department now kicks off a 60-day comment period on the proposed rule.

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