State appeals D.C. court’s decision on Akiachak lands


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The State of Alaska has filed a motion asking for reconsideration of a Washington, D.C. federal district court decision that could allow Alaska Native tribes to establish trust lands.

The decision by the 3rd District U.S. Court of Appeals, released March 31, has potentially far-reaching implications because it could establish trust lands in Alaska that are potentially self-governing, creating conflicts with the state.

The district court’s decision was in Akiachak Native Community et al. vs. Salazar, a case filed in 2006 by four tribes and one Native individual that names current Interior Secretary Ken Salazar as defendant.

What was being disputed was whether an Interior Department regulation barring Salazar from accepting applications for land trusts in Alaska was legal in view of other rules that bar the Secretary from discriminating among Indian Tribes. The court nullified the regulation prohibiting the Secretary from approving lands taken into trust by Alaska Tribal groups.

The state’s motion asks either for the district court to reconsider its decision or the decision to be reviewed by the District of Columbia’s Circuit Court of Appeals through a process known as interlocutory review, which means the appeals court can review arguments before the district court has completed its own process and rendered a final decision.

If the district court’s decision is left in place, state attorneys said it could lead to confusion as to the extent of Tribal authority on trust lands regarding police powers, environmental regulation, and wildlife management.

Federal officials, speaking on background said there could also be implications for fish and game management, raising questions, for example, of whether federal subsistence management rules for federal lands and adjacent streams under the 1980 Alaska National Interest Lands and Conservation Act would apply to Tribal lands in trust, even though the Secretary of the Interior is trustee of trust lands.

The alternative is to have Tribal fish and game management.

Tribal land trusts, approved by Interior Department, are done in the Lower 48 states but in Alaska, Interior developed its rule not to create land trusts following passage of the Alaska Native Claims Settlement Act, or ANCSA, in 1971.

The State of Alaska has intervened in the Akiachak case, arguing that ANCSA barred the establishment of Indian reservations or Tribal trusts. The court found for the plaintiffs, which include the Akiachak Native Community, Chalkyitsik Village, Chilkoot Indian Association, Tuluksak Native Community, and an individual, Alice Kivairlook.

“This decision is a victory for all Alaska tribes. The ruling will allow Alaska Tribes to petition the Secretary to have non-ANCSA lands placed into trust and the opportunity to enhance their ability to regulate alcohol, respond to domestic violence, and generally protect the health, safety and welfare of tribal members,” attorneys for the plaintiffs, the Native American Rights Fund, wrote in a statement.

The next step would be a hearing to discuss remedies to the March 31 ruling. Those could range from a simple rewrite of the current regulation to something more involved that the plaintiffs may suggest at the hearing, sources familiar with the issue said.

However, the state’s motion will be heard, and decided, before a hearing on remedies to the March 31 decision is held.

For its part, the state Department of Law said, “the state is disappointed by and disagrees with the federal district court’s decision. The creation of trust land in Alaska would create jurisdictional complications in areas such as law enforcement, environmental regulation and fish and game management.

 The crux of the state’s argument is that ANCSA resolved these issues.

“It (ANCSA) chose a different model, of private corporations,” state attorney Ann Nelson said in an interview.

In its statement, the state law department said, “ANCSA revoked all reservations in Alaska except the Metlakatla Indian Community of the Annette Island Reserve, and disavowed ‘creating a reservation system or lengthy wardship or trusteeship.’ ANCSA did not provide lands to Alaska tribal governments. Instead ANCSA provided 44 million acres of fee land and almost one billion dollars ($962.5 million) in state and federal money to state-chartered regional and village Native corporations.”

However, it is not entirely clear that ANCSA lands might not become Tribal lands by different mechanisms, such as a donation of lands by village corporations or regional corporations.

Tim Bradner can be reached at tim.bradner@alaskajournal.com.

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