The road to 'Indian Country' in Alaska

On Friday, in a lawsuit called Akiachak Native Community v. Department of the Interior, the federal appeals court in Washington, D.C., cleared the way for the Bureau of Indian Affairs to begin taking title to land located any and everywhere in Alaska into trust for Alaska "tribes." When the BIA does so the land will become "Indian country" within which the state has no civil regulatory jurisdiction, including authority for municipal and borough governments that have property taxes to continue to subject the land to taxation.

The decision is a victory for the Native American Rights Fund. The organization's attorneys have been at the forefront of the Native sovereignty movement, which for more than 30 years have pursued an audacious objective: the tribalization of federal Indian policy in Alaska in contravention of the intent of Congress expressed in the Alaska Native Claims Settlement Act and other Alaska Native-related enactments dating back to 1884.

How, since 1984 when NARF opened an office in Anchorage, its attorneys have pursued that objective is a story that, while entertaining, is too legally and politically convoluted to tell here. However, here is why the federal appeals court decided as it did:

Section 5 of the Indian Reorganization Act, which Congress passed in 1934, authorizes the secretary of the interior to acquire title to land "for the purpose of providing land for Indians." In 1995 a federal appeals court observed that grant of authority is so unfettered that it not only permits "the secretary to purchase a factory, an office building, a residential subdivision, or a golf course in trust for an Indian tribe," but also "to purchase the Empire State Building in trust for a tribal chieftain as a wedding present."

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

In 1936 in a statute some call the Alaska Indian Reorganization Act, Congress made section 5 of the IRA applicable to the territory, later state, of Alaska. But since 1936 the secretary has never used his section 5 authority in Alaska.

There are two reasons why. The most important is that, for the purposes of section 5, section 19 of the IRA defines "Indian" to mean "persons of Indian descent who are members of any recognized Indian tribe." And prior to 1993 there had never been "recognized Indian tribes" in Alaska. As the Alaska Supreme Court explained in 1988: "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 according sovereign tribal status" and "No enactment subsequent to the Alaska Indian Reorganization Act granted or recognized tribal sovereign authority in Alaska."

That was the legal situation in 1993 when attorneys in the NARF office in Anchorage were instrumental behind the scenes in arranging for Assistant Secretary of the Interior for Indian Affairs Ada Deer, who prior to her appointment to that office had been chairperson of the NARF board of directors, to try to create more than 200 "federally recognized tribes" in Alaska simply by publishing a list of "Native entities" in the Federal Register.

While Deer's attempt to usurp Congress's authority was patently unlawful, at the direction of Gov. Tony Knowles, in 1999 Alaska Attorney General Bruce Botelho told the Alaska Supreme Court the state of Alaska agreed with NARF that there are federally recognized tribes in Alaska because six years earlier Assistant Secretary Deer said there were. And since then no Alaska governor, including Bill Walker, and none of the attorneys general who have served them, have challenged the validity of Deer's attempt to create federally recognized tribes in Alaska by agency fiat.

In 2006, NARF attorney Heather Kendall Miller filed the Akiachak Native Community lawsuit to try to persuade the federal court in Washington, D.C., to invalidate a regulation the secretary of the interior had adopted in 1980 that prohibited him from using section 5 of the IRA to take title to land in Alaska into trust. In 2007 when the state asked the court for permission to intervene as a defendant in Miller's lawsuit, Talis Colberg, Gov. Sarah Palin's attorney general, began the brief he filed in support of the state's request by informing the court the lawsuit raised "the important question of whether the secretary of the interior may maintain regulations that bar acquisition of land in trust on behalf of federally recognized tribes in Alaska."

That unnecessary concession the members of the Akiachak Native Community and the other village plaintiffs are federally recognized tribes for the purposes of section 5 of the IRA gratuitously inserted the state's neck more than halfway into the noose. As a consequence, it is no surprise the federal appeals court began its decision by describing the village appellees as "tribes" and describing the state's appeal as an attempt "to prevent any new efforts by the United States to take tribal land in trust within the State's borders."

Given the refusal of Walker — with Lt. Gov. Byron Mallott, who until his election to state office was an outspoken tribal sovereignty advocate, sitting at his side — to defend the state's interests by contesting NARF's assertion there are more than 200 federally recognized tribes in Alaska, it is unlikely the state will prevail in any future litigation. And when the state next loses, one of the most likely outcomes will be the arrival of Indian casinos.

If anyone thinks that is unlikely, they need to visit Duluth, Minnesota, where in 1985 the secretary of the Interior used section 5 of the IRA to transform the land under a boarded-up Sears & Roebuck Co. store downtown into an Indian reservation on which the Fond du Lac Band of Lake Superior Chippewa today operates the Fond-du- Luth Casino. But while entertaining, how that happened is another way too long story.

Donald Craig Mitchell is a former general counsel for the Alaska Federation of Natives. He is the author, most recently of “Wampum: How Indian Tribes, the Mafia, and an Inattentive Congress Invented Indian Gaming and Created a $28 Billion Gambling Empire.”