Alaska News

State holds up effort to expand Indian Country in Alaska

The Interior Department is poised to expand Indian Country in Alaska, but the new Walker administration wants time to assess the potential impact to the state and possibly pursue a congressional compromise in a long-running battle affecting tribal and state sovereignty.

To that end, state Attorney General Craig Richards is asking for a six-month delay in a case before a federal appeals court to give the state time to work with stakeholders in developing policy addressing tribal issues and to consider alternatives to continuing the legal fight, including the possible compromise.

Despite the overtures, the four Alaska Native tribal governments and the Native individual who originally sued Interior in 2006 aren't happy with the proposed delay because they've already gotten what they want and expect to win the appeal.

"We've won," said Heather Kendall-Miller, an attorney with the Native American Rights Fund in Alaska.

They won in a federal district court in 2013. That victory led to the Interior Department's rule, issued late last year, saying the agency would accept land into trust for tribes and individuals with Native allotments.

That will lead to the expansion of Indian Country in Alaska. The move is considered helpful to Alaska tribes, which would receive increased authority and access to federal programs, but it could threaten the state's ability to enforce its laws on tribal land. At present, the only piece of Indian Country in Alaska is Metlakatla, 800 miles southeast of Anchorage in the Annette Islands, a reservation created by Congress in 1891.

The Interior Department is not appealing the case, Kendall-Miller said. The state, however, which had originally intervened on the side of the federal government, has not dropped its appeal. As a result, Interior's ability to put land into trust for Alaska Natives is on hold, angering the plaintiffs, said Kendall-Miller.

Kendall-Miller said she's fine with the state's effort to work with tribes but not by hijacking the case and tribes' ability to put land into trust.

What the state really wants "is protection from a loss in the courts for so long as necessary to secure Congressional relief," Kendall-Miller says in a brief opposing the state's request. This kind of "gamesmanship" goes far beyond the capacity of the courts, she writes.

Richards argues in his filing that creating trust lands in Alaska would be a "monumental departure from the status quo" that could diminish the state's authority over "islands of land" that would be controlled by the federal government or a tribal entity.

Native trust lands could not be taxed by the state, and the state could lose the chance to manage and protect the land and its resources, he argues.

"Exercise of police powers and regulation of state resources are fundamental elements of state sovereignty," he writes.

But the Interior Department says that creating Indian Country in Alaska would give more than 200 tribes access to the same federal grants long enjoyed by their Lower 48 counterparts, encouraging economic opportunity in poor villages and more local control in rural areas hit hard by high levels of domestic violence, sexual assault and other social ills.

Interior's rule is not in conflict with the 1998 Venetie decision, when the U.S. Supreme Court found that Native lands in that case could not be considered Indian Country, Interior has said. Also, Alaska state courts would still generally have jurisdiction over most crimes and some civil matters in Indian Country in Alaska, the agency said.

The state for decades has had a contentious relationship with its tribes, and Gov. Bill Walker said during his campaign that the way to improve state-Native relations is for them to stop suing each other. He and Lt. Gov. Byron Mallott, an Alaska Native, have said they plan to improve the state's relationship with its tribes. But they have provided few details.

Spokespeople for Mallott, Richards and Walker said they could not comment on the pending litigation. Sens. Lisa Murkowski and Dan Sullivan also could not comment because the case is ongoing, their spokespeople said.

Grace Jang, Walker's press secretary, said: "We are looking at ways to improve the state's relationships with tribes, while still protecting the state's interest. We believe there is a lot of common ground to work from, so we are evaluating the options and opening the dialogue."

State attorneys have also said they want to work with tribal stakeholders and others in an unrelated state child-protection case involving the Indian Child Welfare Act, known as the Tununak II case for the village in Southwest Alaska that sued the state.

The state has won the case at the state Supreme Court but the tribe has asked for reconsideration. The state is asking for a 45-day extension to further develop its legal and policy approaches to issues raised by the tribe.

The hope is to make it easier for potential adoptive parents to file a formal adoption petition with the state, said Jacqueline Schafer, an assistant attorney general.

She said she did not know if the state's request in this particular case was part of a broader state approach to develop a tribal policy.

"I can't speak to that personally but it's meaningful at this stage of an appeal to reach out to the tribal stakeholders," she said. "It's a really positive step."

As for the trust lands case, originally brought by the Akiachak tribal government and others, Richards' briefs seem to provide clues to how the administration wants to work with tribes.

Richards notes that the new administration needs time to determine its position on trust lands and develop an informed and "cohesive policy regarding trust land and related tribal issues."

Walker has directed Mallott, Richards and other Cabinet members to "establish a working group to gather stakeholder input and explore a range of policy options" on those issues, Richards writes.

The process would be public, he said.

Kendall-Miller said a public process already took place last summer, when the Interior Department, before issuing its rule, received more than 150 comments at formal hearings while also consulting with tribes.

"The time has come for this long journey to end" so Alaska tribes can "finally secure the protections to which they are entitled by law," Kendall-Miller writes in opposition.

Richards argues that the central question in the case is whether the Alaska Native Claims Settlement Act of 1971 prevents the creation of new trust land in Alaska. The act created Alaska Native corporations and provided them with 44 million acres of land, while attempting to sever tribes from the land, he writes.

Alaska Natives supported that "groundbreaking" law, which set the state on a course radically different than the trust-land or reservation model used in the Lower 48, Richards argues.

For decades after the 1971 law passed, the Interior Secretary respected congressional intent. But the executive branch's position on the issue has evolved, even though Congress has not had the chance to weigh in on the shift, he argues.

Now, with the administration demonstrating a willingness to reevaluate the state's approach to the land-in-trust question, and two resolutions before the state Legislature calling for congressional and legislative action on Native sovereignty and trust lands, the state should have the chance to pursue alternatives to litigation, Richards said.

The decision to continue the case, seek congressional action or determine and implement strategies for "integrating trust land into Alaska's land ownership pattern" are decisions entrusted to an administration that only recently took office, Richards writes.

Kendall-Miller said any congressional compromise would only diminish Interior's decision. She said that Richards, in arguing that the Native Claims Act raises questions about trust land in Alaska, is simply reviving old arguments the state has already lost.

"The state AG's office could have cut and pasted this from prior pleadings," she said.

Kendall-Miller said the appellant court in the District of Columbia is expected to soon decide whether it will grant the delay.

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