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Rural Alaska

State loses another round in fight against feds over Alaska tribal lands

WASHINGTON — Alaska Native tribes can now petition the federal government to take their land into "trust," an action previously barred in Alaska that could result in greater federal support for village efforts to ban alcohol and prosecute some crimes.

A federal appeals court in Washington, D.C., on Friday rejected an appeal by the state of Alaska, saying the state's argument was moot because the Interior Department had already done away with the regulation Native groups were challenging.

The ruling marks a major legal change for Alaska tribes. For 35 years, the Interior Department held to an "Alaska exemption" barring it from acquiring Native land into trust, citing land agreements of the 1971 Alaska Native Claims Settlement Act in which the federal government granted Alaska Natives 44 million acres and gave Native corporations $952.5 million.

Three remote villages — the Akiachak Native Community, Chalkyitsik Village and Tuluksak Native Community — along with the Chilkoot Indian Association, sued the federal government to challenge the rule that kept Alaska lands out of the trust program. A federal district court sided with the tribes, and eventually the Interior Department rescinded the rule. But further action was put on hold during the state's appeal.

The state doesn't want the federal government taking control of any more land in Alaska, where it already controls 222 million acres. But some tribes see a great opportunity in the trust process.

The Bureau of Indian Affairs describes the land-into-trust process as one of the Interior Department's most important functions when it comes to tribes. Many federal programs and services are available only to reservations or trust lands, for acquiring housing aid, promoting energy development, and offering additional environmental protections, according to the bureau. The Alaska Native tribes are particularly interested in getting federal help for prosecuting bootleggers.

Friday's appeals court ruling relied not on the merits of the Alaska exemption but instead faulted the state's legal process in fighting the rule.

"Unfortunately for Alaska, which intervened in the district court as a defendant and brought no independent claim for relief, the controversy between the tribes and the Department is now moot," Judge David S. Tatel wrote in the opinion. Because the Alaska exemption "regulation no longer exists, we can do nothing to affect Akiachak's rights relative to it" and there is no "live controversy," Tatel wrote.

One member of the three-judge panel disagreed. Judge Janice Rogers Brown wrote a dissenting opinion that "the court today euthanizes a live dispute."

"Alaska has tried all along to prevent the repeal of the Alaska exception; it hardly moots Alaska's case to have the Department formalistically (if meaninglessly) do exactly what Alaska feared," Brown wrote.

Alaska will now have two options, Brown said: The state can challenge the regulation that repealed the Alaska exemption — back in district court — "or wait for the Department to take lands into trust and then challenge that administrative decision directly."

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