What happens when the U.S. Secretary of the Interior takes lands into trust for Indian tribes? A recent national report recommends doing so to improve social conditions in our rural Alaska villages. While I do not presume to be an Indian law expert, I do know the issue is enormously complex.
In the Lower 48, when ownership of land is transferred to a tribe, the tribe can ask the Secretary to put it in trust status. According to a 2013 Pepperdine Law Review article the process, known as "fee-to-trust," is fervently opposed by many affected communities because the land is no longer subject to state and local taxation or zoning, planning, fish and game and other regulatory controls. Alaska tribes are asking for this fee-to-trust privilege. Trust status would provide a territorial land base for tribal governing authority -- two acres here, five acres there, 40 or 400 acres somewhere else. Presumably, lands could be given or sold to a tribe by regional or village Native corporations, by Native allotment owners (allotments exist extensively throughout Alaska), by any Native or non-Native individual or business interested in establishing a tribal business free of state taxation and regulation within the trust lands.
Those who understand Indian law best are those who passionately and patiently advocate for increased tribal authority and financial benefit available through judicious use of this complex body of law. They do not necessarily have the broader interests of all Alaskans in mind.
Why might Alaska tribes want lands put into federal trust? Several reasons come to mind. To improve the social and economic status of tribal members is the most frequently stated reason. But this seems illogical; virtually all reservations in the Lower 48 are on Indian country trust lands, and they do not generally seem to be good models for social or economic health.
Second, to have jurisdiction over domestic disputes within villages is another stated reason. However, the Alaska Supreme Court in 1999 has already confirmed some of that tribal authority in the John v. Baker case. Alaska tribal governments, even without the territorial base designated as "Indian country," retain sovereign power to regulate internal domestic affairs such as determination of membership, regulation of domestic relations among members, and regulation of inheritance. However, Alaska tribes do not now have jurisdiction over non-members.
A third important reason may be to gain territory, called "Indian country," over which tribes have governmental authority. In 1998 the U.S. Supreme Court ruled in the Venetie decision that no "Indian country" existed in Alaska except on the Annette Island Reservation. Lands transferred through the 1971 Alaska Native Claims Settlement Act (ANCSA) were not transferred to tribes. Instead Native corporations received land in fee title.
Congress declared in ANCSA that the settlement should be accomplished "without establishing any permanent racially defined institutions, rights, privileges or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges..." Just before President Nixon signed ANCSA, village representatives voted overwhelmingly in favor of the legislation - 511 to 56.
The Venetie decision did not prohibit Indian country in Alaska in the future. If Indian country is established, then tribal courts would have jurisdiction within the confines of that territory--jurisdiction consistent with that allowed in certain other states. Would this be the unraveling of ANCSA?
To uphold ANCSA surely all the settlement lands should be exempt from federal trust status. This could best be clarified by Congress, through efforts of our congressional delegation. If the Lower 48 is any example, otherwise years of litigation can be anticipated.
A fourth important reason for gaining fee-to-trust benefits likely is to gain business and political advantage for tribes and their associates. Alaska is one of six states that are subject to federal Public Law 280, which means that the state and its municipalities have no regulation and taxation authority on trust lands. That authority resides with the tribe. In addition, tribes hold sovereign immunity from suit on most tribal business endeavors existing on trust lands. As examples, they cannot be sued for breach of contract or for injury to a customer in their business establishment open to the public unless a formal "waiver of sovereign immunity" has been signed.
Thus, tribal businesses that sell taxed products gain a substantial advantage over their neighboring non-tribal businesses. The Lower 48 has seen a boom in the Indian casino business. As a result some tribes are now among the largest contributors to political campaigns and spend millions on lobbying efforts.
The Venetie case concerned the village's effort to tax a contractor building a state school on land owned by the village pursuant to ANCSA. Lower courts had upheld the tax. If these lands had been in federal trust, would the Supreme Court have also upheld the tax?
Sometimes a non-Indian business entity in the Lower 48 joins with a tribal group to establish a non-taxable business on tribal lands. I don't think this would relate to the lucrative federal 8(a) contracting in which many Alaska Native corporations engage -- but it's another item to have clarified.
Tribal members living on trust lands are full citizens of the state, must receive all state benefits, and can vote on state and county/borough bonding issues. But members living within Indian country cannot be taxed to support them. Members can be elected to state or municipal office and vote on budgets for which many of their constituents would have no tax responsibility.
Is this "representation without taxation"? It may make good business sense to gain this privilege - but is it good public policy? How would this impact the "rural-urban" divide and racial relations in Alaska?
These are only some aspects to be considered when supporting or opposing the proposal to take Alaska tribal lands into trust status. I suggest interested parties check the internet for a "fee-to-trust introduction" by Citizen's Equal Rights Alliance and study "American Indian Law in a Nutshell," by Ninth Circuit Judge William Canby. But no text will have all the answers; masses of litigation are ongoing constantly. The Pepperdine Law Review article stresses the need for comprehensive reform of the fee-to-trust process.
I encourage readers to comment soon on this federal proposal "to take land into trust for Alaska Native tribes." The Department of Interior welcomes written comments by June 30, 2014. Email comments to consultation@bia.gov or mail to Mr. Kevin Washburn, Assistant Secretary-Indian Affairs, 1849 C Street NW, MS 7328-MIB, Washington, D.C. 20240. Please also send copies to Governor Sean Parnell and our congressional delegation.
For over 50 years, Mary Bishop has lived in Fairbanks and Interior Alaska villages. During the 1980s and 1990s she edited the Alaska Outdoor Council's quarterly newsletter, and in that capacity became familiar with the issue of Indian country in Alaska.
By MARY BISHOP