FAIRBANKS—Alaska Native communities won a significant victory against the state of Alaska on Friday when a federal appeals court ruled that tribes in the state have the right to place their land in federal trust.

For decades, the Department of Interior contended that the Alaska Native Claims Settlement Act prevented the federal government from ever placing Alaska Native lands in trust, other than lands of members of the Metlakatla reservation in Southeast Alaska.

This barrier became known as the Alaska Exception, because it exempted Alaska from provisions in the Indian Reorganization Act of 1934 that allowed the federal government to accept lands of Native Americans into trust or designate new reservations.

By placing their land in trust, tribes allow the federal government to take co-ownership through a trust benefiting the tribe. Such a designation comes with several significant benefits to tribes.

Firstly, the tribes gain access to Bureau of Indian Affairs funding for things such as economic development and transportation, from which tribes in Alaska had been barred in the past. Secondly, tribes would gain more explicit authority to institute and enforce their own criminal and civil laws on the land in trust, along with access to federal funding to cover costs of enforcing those laws themselves.

Heather Kendall-Miller, the lead attorney for Akiachak and the other Native communities, said many rural Alaska communities are in desperate need of the aid that will come with a land trust designation.

"As everybody has recognized for years, the state of Alaska doesn't have law enforcement to the extent that is needed or necessary in rural Alaska," Kendall-Miller said in an interview with the News-Miner following the ruling by the U.S. Court of Appeals for the District of Columbia.

Specifically, having land in trust would provide tribes more explicit authority and more funding to enforce liquor laws and to capture and prosecute bootleggers the state doesn't have the resources and manpower to monitor, she said.

Kevin Illingworth, a professor of rural studies at the University of Alaska Fairbanks, said the state shouldn't be upset with the opportunity even though it lost a case.

"It would not take any authority away from the state," Illingworth said. "So, in the sense of establishing public safety in villages, it really does go a long way in being able to cross-deputize (and) have cooperative enforcement."

Akiachak v. Alaska

Arguments about the Alaska Exception have been ongoing for decades, but this particular case began in 2007. At that time, three Native communities — Akiachak, Chalkyitsik, and Tuluksak — challenged the Interior Department's interpretation of the Alaska Exception and won.

The department acquiesced and eliminated the rules to allow Alaska tribes to make such requests, but the state of Alaska stepped in as a defendant when the department abandoned the fight. The courts placed a moratorium on the change, preventing the Interior Department from approving land trust applications until an appeal decision came.

On Friday, the federal appeals court ruled that the state's claim was moot, in part because the Department of Interior rule on which the case hinged no longer existed and because the state brought no new, independent claim of its own.

One of the judges on the Court of Appeals dissented, siding instead with the state of Alaska. The dissenting judge pointed out that the state's case did have grounds because it, in fact, contended a different point altogether than Interior. Whereas Interior claimed only that the Alaska Exception was permissible, the state of Alaska claimed that ANCSA required the Alaska Exception.

Lloyd Miller, one of the lawyers working on the case for the Native communities, called Friday's decision historic.

"More than it being a very historic decision, it's the end of a very long campaign that began decades ago to move the federal government and the state to rethink (their) entire approach to Alaska Native tribal issues," Miller said. "One might be tempted to ask, 'What is the big deal?' but it is a huge deal."

Illingworth said the immediate impact of the decision is effectively "nil" but that its long-term impact could be massive. In order for the real change to take place, Native communities will have to begin the lengthy application process with Interior requesting lands be placed into federal trust.

Woodie Salmon, first chief of Chalkyitsik, said he hopes his community will apply for federal land trust now that it has the opportunity. Chalkyitsik is a rural community of about 70 people on the Black River 50 miles east of Fort Yukon.

"The village council will ... see if we can work hand in hand with the Native corporation and see if we can get that land into trust," Salmon said. "It's going to take time."

Salmon, a former state legislator, said he was happy to hear about the ruling but cautiously so, as he expected the state to continue fighting.

"We're really happy," he said, "but we don't want to be too happy."

 

State steps in

When Gov. Bill Walker took office, his administration's Department of Law was given several months to review the Akiachak case and determine if it wanted to pursue litigation.

"That was one of the first things the governor had on his plate," Kendall-Miller said.

In the end, the Walker administration chose to continue litigating.

"I was (surprised). I was disappointed very much," Kendall-Miller said. "It did feel like a violation of promises made."

Kendall-Miller said the Walker administration's decision to fight this battle against tribes on the heels of a campaign full of promise to Native communities hurt. Despite that, she said she is optimistic about the future, especially as the administration moves on with a new attorney general.

Walker's office declined to comment on the ruling, instead directing questions to the Department of Law.

"We will review the decision as we do all appellate decisions and determine next steps," a spokeswoman for the department wrote. "We will go through our normal review process before making any decision."

If the state chooses to appeal, it would have to do so to the U.S. Supreme Court. Miller said the team would be surprised to see the state appeal.

Contact staff writer Weston Morrow at 459-7520. Follow him on Twitter: @FDNMschools.

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