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.
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.
Trust lands are scarce in Alaska because of 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.
“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,” said Cori Mills, the Department of Law’s public outreach coordinator. “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.
It’s not clear how well those laws will mesh with land into trust statutes, Mills said.
“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.
Alaska may need new regulations or rules on how trust status will work here, Mills said.
“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,” Brouillette said. “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.”
“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,” she said.
The way Brouillette 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,” she 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.”
Attorney General Jahna Lindemuth said in a prepared statement 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.