Section 5 of the Indian Reorganization Act (IRA), a law Congress passed in 1934, authorizes the secretary of the Department of Interior to acquire title to any land at any location for the purpose of providing land for Native Americans who are members of a "recognized Indian tribe now under federal jurisdiction," as well as for individual Native Americans who are of "one-half or more Indian blood" (a race-based category that likely is unconstitutional). When the secretary acquires title, the land becomes "trust" land that is tantamount to an Indian reservation.
Section 5 did not apply to the Territory of Alaska. But in 1936 Congress passed the Alaska Indian Reorganization Act, a law that authorized Alaska Natives who were not members of a "recognized tribe," but who had a "common bond of occupation, or association, or residence within a well-defined neighborhood, community, or rural district," to organize under the IRA.
The 1936 law referenced section 5. But between 1936 and Congress's enactment of the Alaska Native Claims Settlement Act (ANCSA) in 1971, the secretary did not acquire any land in Alaska pursuant to section 5. The reason is that section 5 authorizes the secretary to acquire land for "federally recognized tribes." But at the urging of the Presbyterian missionary Sheldon Jackson, in 1884 Congress decided that it would not create any "federally recognized tribes" in what at the time was the District of Alaska. As a consequence, as Secretary of the Interior Ray Lyman Wilbur explained in 1932, to that date Alaska Natives had never "been recognized as the independent tribes with a government of their own. The individual native has always and everywhere in Alaska been subject to the white man's law, both Federal and territorial, civil and criminal."
In 1971 when Congress passed ANCSA the fact that there were no "federally recognized tribes" in Alaska was well-understood and entirely noncontroversial. Because it was, in ANCSA Congress directed the secretary of the interior to implement the ANCSA settlement "without establishing any permanent racially defined institutions, rights, privileges, or obligations," and "without creating a reservation system." But since section 5 had never had any applicability in Alaska, in ANCSA, Congress did not bother to repeal section 5.
Because, for almost half a century, section 5 of the IRA had had no applicability in Alaska, in 1980 when he adopted regulations to guide his exercise in the 48 coterminous states of the authority section 5 delegates to him, the secretary of the Interior included a sentence in his regulations which stated that the regulations did "not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or its members."
That was the situation in the early 1980s when a small group of Alaska Natives, led initially by Charlie Edwardsen and Don Wright, a former president of the Alaska Federation of Natives, and a similarly small group of attorneys who represented them, decided that life in the more than 200 communities in Alaska that Congress has designated as "Native villages" for the purposes of ANCSA would be better if the residents of each village became a "federally recognized tribe" and the land around the village became "Indian country" within which the state of Alaska would have no civil regulatory jurisdiction. But in 1988, when the tribal sovereignty issue reached the Alaska Supreme Court in a case called Native Village of Stevens v. Alaska Management & Planning, here is what the Court said: "In a series of enactments following the Treaty of Cession (in 1867) and extending into the first third of this century, Congress has demonstrated its intent that Alaska Native communities not be accorded sovereign tribal status. The historical accuracy of this conclusion was expressly recognized in the proviso to the Alaska Indian Reorganization Act ... No enactment subsequent to the Alaska Indian Reorganization Act granted or recognized tribal sovereign authority in Alaska."
In 1984 the Native American Rights Fund (NARF), a law firm headquartered in Boulder, Colorado, whose mission is to advance the cause of tribal sovereignty, had opened an office in Anchorage. In response to the Stevens Village decision, Lare Aschenbrenner, the attorney who was the head of NARF's Anchorage office, and more than a dozen other attorneys who represented Native groups that wanted to be "federally recognized tribes," began quietly lobbying Eddie Brown, the assistant secretary of the Interior for Indian affairs, to reverse the Stevens Village decision administratively.
During the presidency of George H.W. Bush, Mr. Aschenbrenner and his band of conspirators got nowhere. But in 1993 Bill Clinton became president and that summer he appointed a woman named Ada Deer to replace Eddie Brown as assistant secretary of the Interior for Indian affairs. Prior to her appointment, Ms. Deer had been the chairperson of the board of directors of NARF.
In October 1993, Ada Deer flew to Anchorage and at the AFN convention announced that -- no matter what the Alaska Supreme Court had said in the Stevens Village decision -- there henceforth were more than 200 "federally recognized tribes" in Alaska for no reason other than that she intended to say that there were by publishing in the Federal Register a list of Alaska "tribes," and an explanatory preamble. The list and preamble had been given to Ms. Deer by NARF, and, prior to their publication, John Trezise, the acting associate solicitor for Indian affairs, gave Lloyd Miller, an Anchorage attorney who is a well-known tribal sovereignty advocate, a copy of the list and preamble for him to revise; which Mr. Miller did.
On October 21, 1993 Ada Deer published NARF's list and preamble in the Federal Register.
When did Congress give Ada Deer the authority to turn 109 years of congressional Alaska Native policy inside out like an old sock by creating more than 200 "federally recognized tribes" simply by publishing a list and a preamble in the Federal Register? The answer is that Congress had never given Ms. Deer any such authority.
The year after Ada Deer published her list and preamble, in 1994 Tony Knowles succeeded Wally Hickel as governor of Alaska. When he became governor, Tony inherited both Bruce Botelho, who had been Wally's attorney general, and Alaska v. Native Village of Venetie, a lawsuit Hickel had filed to establish that the residents of the villages of Venetie and Arctic Village were not a "federally recognized tribe" and that the fee title land within the boundaries of the 1.8 million acre Venetie reserve that Congress had revoked in ANCSA was not "Indian country."
In 1994, U.S. District Court Judge H. Russel Holland ruled that the residents of Venetie and Arctic Village were a "federally recognized tribe," and in 1995 he ruled that the fee title land within the boundaries of the former Venetie reserve was not "Indian country."
Represented by NARF, the Native Village of Venetie appealed Judge Holland's "no Indian country" ruling to the U.S. Court of Appeals for the Ninth Circuit. But Tony ordered Attorney General Botelho not to appeal Judge Holland's ruling that the residents of Venetie and Arctic Village were a "federally recognized tribe."
The Alaska Legislature was so outraged that Judge Holland's ruling was not being appealed that the Senate and House Judiciary Committees brought Botelho before a joint hearing. At the hearing, he explained that Tony had ordered him not to file an appeal because the governor wanted to "develop a better, happier relationship with the villages throughout Alaska."
Why would Tony Knowles want to "develop a better, happier relationship with the villages"? Knowles can answer that question for himself. But at the time he ordered Botelho not to file an appeal, Knowles knew he would be running for reelection in 1998. And Knowles, who is a Democrat, knew that Native residents of Native villages are a core Democratic constituency.
Tony Knowles made the decision not to file an appeal in the Alaska v. Native Village of Venetie lawsuit 19 years ago. Since then, every governor who has followed him has assumed -- without questioning the legal validity of the assumption -- that there are more than 200 "federally recognized tribes" in Alaska because in 1993 Ada Deer said there were. And since 1999 the Alaska Supreme Court has assumed the same.
What does the history of tribal status in Alaska have to do with section 5 of the IRA?
Represented by Heather Kendall Miller, who by then had succeeded Lare Aschenbrenner as the head of NARF's Anchorage office, in 2006 the Akiachak Native Community and three other ersatz "federally recognized tribes" filed a lawsuit against the Department of the Interior in the U.S. District Court for the District of Columbia. The purpose of the suit was to obtain a court order invalidating the sentence in the regulations implementing section 5 of the IRA that the secretary of the Interior had adopted back in 1980, which said that (except on Annette Island) section 5 did not apply in Alaska.
During the Palin administration, the state of Alaska intervened in the lawsuit. However, in the brief he filed in the U.S. District Court, Palin's attorney general did not argue that the sentence in the regulations was legally appropriate because -- since there were no "federally recognized tribes" in Alaska -- section 5 of the IRA had no applicability in Alaska.
So it is no surprise that in 2013 District Judge Rudolph Contreras issued a decision in which he sided with NARF. Insofar as how his assumption that the Akiachak Native Community and the other plaintiffs are "federally recognized tribes" determined the outcome of the case, Judge Contreras held that the sentence in the regulations which states that section 5 of the IRA does not apply in Alaska (except on Annette Island) is invalid because it is inconsistent with 25 U.S.C. 476(g), a law Congress passed in 1994 that invalidates all regulations that diminish "the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes."
Obviously, if there are no "federally recognized tribes" in Alaska, then 25 U.S.C. 476(g) has no effect on the sentence in the regulations implementing section 5 of the IRA. But since, like Governors Knowles, Murkowski, and Palin, Governor Parnell had conceded the tribal status issue, his attorney general did not explain to Judge Contreras why 25 U.S.C. 476(g) had nothing to do with NARF's lawsuit.
Before Parnell left office, his attorney general did, however, appeal Judge Contreras's decision to the U.S. Court of Appeals for the District of Columbia Circuit. And at the state's request, in June 2014 Judge Contreras issued an order in which he prohibited the secretary of the Interior from taking title to any land in Alaska into trust pursuant to section 5 of the IRA until the U.S. Court of Appeals decides the state's appeal.
Six months later when he assumed office, Governor Bill Walker asked the U.S. Court of Appeals to suspend briefing in the appeal for six months because he had "directed Lieutenant Governor Byron Mallott and Attorney General Craig Richards and other cabinet members to establish a working group to gather stakeholder input and explore a range of policy options on this issue and related tribal issues in Alaska, including potential alternatives to continuing this litigation."
After retiring as president of the Sealaska Corporation and prior to his election as lieutenant governor, Mallott had become as strident an advocate for tribal sovereignty in Alaska as Lloyd and Heather Kendall Miller. So his involvement as a leader of the working group led to speculation that he would persuade the governor to direct Attorney General Richards to drop the state's appeal. But that speculation ended last week when the attorney general filed the state's opening brief.
Unfortunately, the brief is a disorganized rehash of the legal arguments drawn from the text of ANCSA that Judge Contreras had found unpersuasive. But even worse, the brief informs the U.S. Court of Appeals that "There are 229 federally-recognized tribes in Alaska, nearly half of the 567 tribes recognized nationwide." So the brief concedes that Judge Contreras was correct when he concluded that the sentence in the 1980 regulations that is the subject of the lawsuit is invalid if it is inconsistent with 25 U.S.C. 476(g), which it is.
As a litigation strategy, that gratuitous concession is astounding in its failure to vigorously defend the state of Alaska's interest in an appeal that, when he prohibited the secretary of the Interior from taking title to any land in Alaska into trust until the appeal is decided, Judge Contreras said had the potential to inflict "irreparable harm to state sovereignty."
After reading Attorney General Richards's brief, my prediction is that the state loses its appeal.
If it does, then what happens?
Last December, Kevin Washburn, the present assistant secretary of the Interior for Indian affairs, amended the regulations that govern the implementation of section 5 of the IRA in the forty-eight coterminous states by removing the sentence that prohibited the secretary of the Interior from taking title to land in Alaska into trust (which raises the question of whether that action mooted the state's appeal). As of last February, the BIA's Alaska area office had begun processing applications that request the secretary to take title to more than 100,000 acres of land in Alaska into trust. Where all that land is located is unclear. But the Ninilchik Village Tribe wants 2.3 acres, the Chilkoot Indian Association wants 52 acres (presumably in Haines), and the Tlingit Haida Central Council wants two parcels (presumably in Juneau).
When Attorney General Richards loses the state's appeal, and the assistant secretary of the Interior -- aka Kevin Washburn -- begins taking title to all of that land into trust, what are the remaining options to prevent that from happening?
There are two.
The first is that a private party who has standing to do so can challenge a particular land-into-trust decision by filing a lawsuit which argues that the Native group for which the title was taken into trust is not a "federally recognized tribe" and that section 5 of the IRA is unconstitutional in its entirety because its text does not contain any standards to control the secretary of the Interior's exercise of the authority that section 5 delegates to him.
The second is that Senators Murkowski and Sullivan and Congressman Young can have Congress amend section 5 of the IRA to make clear that it does not apply to Alaska. Since Murkowski is a senior member of the Senate Committee on Indian Affairs and Young is chairman of the Subcommittee on Indian, Insular, and Alaska Native Affairs of the House Committee on Natural Resources, they both are well-positioned to do that if they want to. Since Lisa and Don already are running hard for reelection next year, when you see them on the campaign trail you may want to ask them to, if for no other reason than to enjoy watching to see whether either of them will give you a straight answer.
Donald Craig Mitchell is an Anchorage attorney and the author of the two books on the Alaska Native Claims Settlement Act. He was also a former vice president and general counsel for the Alaska Federation of Natives.
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.