To suggest tribes didn't exist in Alaska until the '90s ignores legal history

Donald Mitchell's ADN "road to 'Indian Country' " commentary on July 3 is notable for the potential to confuse the public regarding the recent federal appeals court decision in the case of Akiachak Native Community v. Department of the Interior, which removes roadblocks for those Alaska tribes wishing to petition to place land into trust. Some clarification is needed.

Starting at the beginning, the sentence "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' " is simply untrue. The appeals court decision in the Akiachak case means that Alaska tribes can now proceed with the submission of discretionary petitions to the Department of Interior to have fee lands they own placed into trust. This does not mean "any land" nor does it mean land "everywhere" in Alaska. Unless a tribe owns land in fee it cannot submit a petition. "Any land" does not qualify; only fee land owned by a tribe.

I mention the word "discretionary" because it is very important; the Interior Department does not have to take land into trust when the petitions are received and there are some strict guidelines as to what will qualify and what will not. Grounds for a successful petition are limited to economic development, tribal self-determination and noncommercial Indian housing. Land "everywhere" in Alaska will not qualify; only land that is suitable for one of the three uses specified in the BIA "Land Into Trust" handbook (available online). Lands that are taken into trust for tribes do not automatically result in casinos; gaming acquisitions require additional review and paperwork.

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

The "any land everywhere" mentioned by Mr. Mitchell does not include lands owned by the Alaska Native Claims Settlement Act corporations since tribes do not own these lands. Unless an ANCSA corporation conveys fee land to a tribe or agrees to try to petition on behalf of the tribe, ANCSA lands will not qualify. There is no guarantee that land conveyed from a Native corporation to a tribe would then be taken into trust, and it is unlikely that the corporations are going to convey large amounts of land to tribes. So, "any land everywhere" is only the approximately six million acres of fee land currently owned in varying amounts by some of Alaska's federally recognized tribes.

A tribe cannot have a gambling operation that would not be allowed otherwise by state law, and casino gambling is illegal in Alaska. Unless state law is changed there will be no casinos in Alaska. Not in Indian Country or anywhere else. Even supposing state law were to be changed there would still be the question of the tribe and the state negotiating a compact before a casino would be considered. Then there would be the issue of location; casinos need a steady stream of customers with discretionary income as well as roads to get them to the site. Both of these are definitely lacking in rural Alaska.

Having hopefully addressed public concerns about "any land everywhere" and the imminent arrival of Indian casinos on those lands, I will attempt to make sense of Mr. Mitchell's effort to disprove the existence of tribes in Alaska. It is this argument that underpins his attack on the Akiachak decision and it is indeed a strange one. When Assistant Secretary of the Interior Ada Deer added Alaska's tribes to the federal register in 1993 she did not invent tribes; she made their relationship with the federal government official. Tribes had always been here in some form and they certainly predated contact with Europeans. Tribes are governing political entities and it would be completely untrue to suggest that no such Alaska Native entities existed prior to 1993. Some of these tribes already had an established relationship with the federal government through the Indian Reorganization Act of 1936; Mrs. Deer's action made those relationships official for all of our tribes.

To suggest that tribes only exist today because of their addition to the federal register in 1993 ignores a long history that is well supported by legal documentation, anthropology and archaeology. Since legal history is the area I know best, I'll just mention a few instances. The Russian American Treaty of Cession references "tribes" (1867). The Tlingit and Haida Jurisdictional Act was signed into law in 1935 to allow "Tlingit and Haida Tribes" to bring their claims against the United States to court. The Alaska Citizenship Act of 1915 required Alaska Natives to sever tribal relationships in order to be eligible for citizenship. Tee-Hit-Ton Indians v. United States (1955) talks about the Tlingit Tribe. The Court in In Re McCord, 1957, clearly recognized the existence of a tribe at Tyonek. ANCSA itself, while containing little discussion of tribes, clearly recognizes that they exist in Alaska by including them in the definitions at the beginning of the Act and it contains no language eliminating them. At no time has Congress ever made any kind of proclamation to the effect that no tribes exist here nor has it ever terminated any Alaska tribes.

The idea that tribes were somehow created as political entities either by the Department of the Interior or the Native American Rights Fund is really not supported by any factual evidence. Tribes are here with us today and they have always been here. Today they are trying to fill some very serious gaps that exist in their communities in terms of public safety, health, education and economic development. Those gaps cannot be filled by the Alaska Native corporations, which are not governing entities and are responsible only to shareholders. Around 60 percent of Alaska Natives are not shareholders in the corporations and that number is growing.

Whether the tribes can further their goals by placing lands they own into trust remains to be seen, but at least they now have the opportunity to use this additional community development tool if they wish. Helping them to do this would be in the best interest of the state and we should request that no further action be taken at our expense to block their efforts.

Jenny Bell-Jones is a retired assistant professor and chair emeritus for the Department of Alaska Native Studies and Rural Development at the University of Alaska Fairbanks. The opinion provided here is her own and does not represent the department or the university.