I urge Gov. Walker to appeal the lower court Akiachak decision and oppose Indian Country (reservation) lands in Alaska. I urge him to keep the broad interests of all Alaskans in mind.
I must rebut Richard Peterson's recent commentary (ADN, Aug. 12) condemning Suzanne Downing's earlier (ADN, Aug. 11), largely accurate portrayal of taxation and regulation in Indian Country under Alaska's Public Law 280 status. Lower 48 states have indeed survived Indian Country, but none have over 200 tribes, more than 10,000 individual Native allotments, and a settlement like our 1971 Alaska Native Claims Settlement Act. ANCSA has proven to be an amazingly successful economic engine in the state and a great benefit to Native corporation shareholders.
It is important to recognize: Those who understand American 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. These advocates do not necessarily have the broader interests of all Alaskans in mind. That responsibility lies with the state of Alaska.
Because of a lawsuit which the village of Akiachak won in a lower court, the Interior Department's Bureau of Indian Affairs is now accepting -- but not acting upon -- applications for tribally owned land to be placed in federal trust status. That status means the lands are similar to Lower 48 Indian reservations. BIA will act if the Walker administration decides to drop the state's appeal of the lower court decision.
When tribes apply to BIA for trust status of their land, the BIA regularly "rubber-stamps" these requests with little regard for opposition from the surrounding community. Sometimes the BIA puts the request on long-term hold and no one knows what will happen. That's hardly a recipe for a cordial relationship between the tribe and surrounding community.
The issue is often called "fee-to-trust" and refers to land owned in fee title by a tribe and moved to federal trust status. Land in trust status cannot be taxed or regulated by the state or its cities or boroughs. The tribe can tax and regulate. This trust land over which a tribe has governmental authority is known as "Indian Country."
In the six Public Law 280 states, including Alaska, the state and its municipalities do not have zoning, planning, fishing, hunting, and other regulatory authority -- think marijuana. Usually an activity the state allows through regulation can only be regulated and/or taxed by the tribe — not the state. The lands in trust status provide a "territorial base" for tribal judicial, taxation and regulation authority.
Alaska tribes now own at least 2 million acres of land -- but it is not held in trust -- except in one Southeast community, Metlakatla. For example, the Venetie tribe owns 1.8 million acres. Numerous individual Native allotment lands could easily be turned over to tribes; pieces of village or regional Native corporation land could be turned over to a tribe through a vote of the shareholders.
Significantly, tribes may receive other lands anywhere in the state through purchase or donation. As has been done in the Lower 48, tribes may be approached by investors willing to fund the acquisition of lands that could then be used for business activities that would otherwise be inconsistent with state or local regulations.
Several allotment lands are opportunely located within our boroughs and within the city limits of Alaska communities like Fairbanks and Dillingham. During the legislative budget hearings this year, Dillingham requested special project funding from the state. The city has little revenue; it cannot establish a property tax. Too much land within the city is held in trust as tax-exempt Native allotments. But even those lands are not held by a tribe, so they are not Indian Country and exempt from municipal regulation.
News reports indicate the U.S. Justice Department told Indian tribes they can grow and sell marijuana on their trust lands as long as they follow the same federal conditions laid out for states that have legalized the drug. The feds have recently raided bad actor marijuana tribes in California.
Tribal "immunity from suit" is a common problem of trust status not found associated with ANCSA corporations. The immunity generally extends to tribal officials in their official capacity and tribal businesses within and beyond the boundaries of Indian Country unless they have "clearly" signed a formal waiver of sovereign immunity.
Tribal residents of Indian Country are full voting state and municipal citizens and must receive all usual state benefits -- roads, schools, PFDs, etc. They can vote on local bonding issues but cannot be taxed to support them -- a situation of "representation without taxation."
The governor has recently met with tribal leaders in several Southwest Alaska communities in an attempt to get their views on this important subject. In addition he should receive candid viewpoints from readers and from:
- Municipal leaders who cant tax or regulate on tribal trust lands;
- Businesses which likely cant compete with tax- and regulation-free tribal neighbors;
- Environmental and fish/game interests who recognize no state regulations apply on tribal trust lands;
- Access advocates who recognize the possible loss of access on unresolved historic RS 2477 trails and other unresolved access routes;
- Native Regional and Village Corporations who have been conspicuous by their silence on the issue, but would be competing with subsidized tribal businesses, and subject to tribal taxation & regulation when operating on tribal trust lands;
- Tax-paying Native and non-Native neighbors of tax-exempt tribal residents living on their trust land. Only members of the specific tribe are tax-exempt and over 200 tribes exist in Alaska.
Judge Ferdinand Fernandez of the 9th Circuit Court, in spite of his 1997 decision to support the village of Venetie's effort to claim Indian Country status, astutely foresaw and expressed the potential of that decision in the following comment:
We have been asked to blow up a blizzard of litigation throughout the State of Alaska as each and every tribe seeks to test the limits of its power over what it deems to be its Indian country. There are hundreds of tribes, and the litigation permutations are as vast as the capacity of fine human minds can make them. They can include claims to freedom from state taxation and regulation, claims to regulate and tax for tribal purposes, assertions of sovereignty over vast areas of Alaska, and even assertions that tribes can regulate and tax the various corporations created to hold ANCSA land. The latter assertion would give the tribes the power to control, regulate and tax those corporations out of existence and would provide a fruitful area for intertribal conflict. This is no imaginative parade of horribles.
Dropping this Akiachak lawsuit because it's a waste of money most assuredly means the state will be in many more lawsuits as "every tribe tests the limits of its power." Indeed, dropping the Akiachak case could be the biggest waste of money.
Please let the governor know your point of view on this issue -- Gov. Bill Walker at P. O. Box 110001, Juneau, AK 99811-0001, By fax: 1-907-465-3532 or by email: bill.walker@alaska.gov
For additional information see:
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.
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, email commentary(at)alaskadispatch.com.