Taking Native lands into federal trust wouldn't 'unravel' ANCSA

Jenny Bell-Jones

On June 25, the Daily News published an opinion discussing the placing of Alaska Native lands into trust with the federal government. The writer expressed concern that the taking of lands into trust would “unravel” ANCSA and somehow threaten the welfare of non-Native Alaskans; this commentary will try to address that concern.

First, we must understand that language in the Alaska Native Claims Settlement Act of 1971 will not change if tribes take land into trust. Alaska tribes wish to eliminate language in the Code of Federal Regulations part 151 that currently prevents them from petitioning the Secretary of the Interior to take lands into trust. That language specifically discriminates against Alaska tribes and Native individuals; all other tribes and Native individuals have this right, and the discriminatory provision is illegal under federal law.

ANCSA was signed into law to settle valid claims of unextinguished aboriginal title that blanketed almost all of Alaska. ANCSA was not a negotiated settlement. It was an Act of Congress. The document that exists today is the result of work by Congressional members and actual contents were not public information until after the final document was signed. While Alaska Natives may have voted in favor of moving forward with an agreement, this should never be construed as a vote in favor of the wording of the law itself. The public does not get to “vote” on the contents of laws created by Congress.

ANCSA is long and complicated. Its social-engineering provisions extend beyond the land claims it was intended to settle. Some of these provisions worked well; others have not, and ANCSA has undergone numerous amendments since its inception. No one knew ahead of time what would work, and one must hope that no one would recommend failing provisions be continued. One failure is actually an omission; ANCSA provided no land base for tribal governments.

It is this omission that Alaska tribes hope to address by removing the discriminatory language from the CFR. Governments need a land base if they are to be successful. Very few governments in the world succeed without a proper land base; examples include Monaco and Vatican City, and even these have clearly defined territory.

ANCSA was intended to be “accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives” (43 U.S.C. § 1601(b)). Forty-three years later this goal is yet to be accomplished. The Indian Law and Order Commission report makes it very clear that an unacceptable situation exists in rural Alaska. Many tribal communities lack even the most basic services, resident law enforcement, and suffer extreme levels of violence and the highest unemployment in the state. Clearly economic and social needs have not been met.

The comment on June 25 suggests that taking lands into trust will not improve the social and economic status of tribal members and that tribes with trust lands in the Lower 48 “do not generally seem to be good models for social or economic health.” This language indicates lack of knowledge of the situation on the reservations. No, things are not perfect; Lower 48 tribes have suffered under two centuries of failed federal Indian policies that only started to turn around in the 1960s with the beginning of the self-determination era. Unraveling that damage will not happen overnight, but remarkable things are now happening with tribes overseeing all manner of economic development and social improvements on their tribal trust lands.

The implication that other Alaskans will somehow suffer if lands are taken into trust brings into question the intent of ANCSA. The legislation is Indian law; the benefit that non-Natives were to realize was the removal of the cloud on title to the lands so that the state could proceed with land selection and the trans-Alaska oil pipeline could be built. These benefits alone have been substantial, but there have been more. Some of the ANCSA corporations have been very successful, and many non-Natives have lucrative employment as a result. Substantial revenues come to the state as a result of ANC business activities. None of this will go away if tribes are able to take some land into trust. On the contrary, Alaskans stand to benefit in many ways from improved social and economic conditions in the villages.

The state cannot afford to provide proper services in the villages. It is not the job of the Native corporations to do this ... the provision of services and infrastructure is a responsibility of government, and the corporations are businesses not governments. If the tribes have a land base and can use that land base to raise revenue to invest in the community, they will be laying the groundwork for sustainable development that does not currently exist. It will be easier for businesses to pursue development in communities they currently avoid because of missing infrastructure. State spending on services will be reduced, and opportunities for revenue will increase, both of which benefit everyone in the state.

It is hard to see how placing lands into trust equates with unraveling anything; definitions of the word include “solve” and providing tribes with a land base would solve one of the major problems created by ANCSA. The process will not be automatic; the secretary does not “rubber stamp” trust land applications. They are dealt with on a case-by-case basis. No one will be forcing the ANCSA corporations to transfer lands to the tribes; those entities will need to work that out between themselves. If tribes own or acquire other lands that they wish to have taken into trust, this will have no effect on the corporate land base. If tribes develop tax regimes that benefit their communities and help develop infrastructure, that in turn encourages business development and everyone benefits.

The June 25 writer encouraged readers to submit comments to the Department of Interior, which I have already done. Perhaps some of the information provided here will assist others in providing commentary.

Jenny Bell-Jones teaches indigenous law at the University of Alaska Fairbanks. She holds a masters degree in rural development. This commentary is her opinion alone and not that of the university.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com.