Appeal in Akiachak case revives tribal sovereignty fight
JUNEAU — When Gov. Bill Walker and Lt. Gov. Byron Mallott joined forces last year, they created the Unity Ticket. A legal action filed Aug. 24 by the state is straining that image.
The appeal, filed in the U.S. Circuit Court of Appeals in Washington, D.C., seeks to overturn a D.C. District Court ruling that would allow Alaska Native tribes to put land into federal trust.
Trust status would prevent the state or local governments from taxing the land and allow tribes to control such things as access and many aspects of law enforcement.
“Alaska Natives believed Gov. Walker when he said he would set a new course,” said Richard Peterson, president of the Central Council Tlingit-Haida Indian Tribes of Alaska. “Instead, by authorizing the state’s appeal, Gov. Walker is just following the old, costly, self-defeating ways of fighting instead of collaborating.”
Fighting for ‘Indian Country’
The case in question is called State of Alaska v. Akiachak Native Community et al., or the Akiachak case for short. It pits the state against four tribes and an individual who are seeking a right that tribes in the Lower 48 have — the ability to put land into federal trust and create what is formally known as Indian Country.
For decades, the Alaska Native Claims Settlement Act was thought to have erased that ability among Alaska Natives. In 1994, three tribes asked the Secretary of the Interior to erase the “Alaska exemption.” In 2001, the Interior’s associate solicitor for Indian Affairs said ANCSA precluded trust land in Alaska. A lawsuit followed, contending the solicitor was wrong.
In 2013, D.C. district court judge Rudolph Contreras agreed with those who launched the lawsuit. The Department of the Interior began accepting applications for trust land, but the state’s pending appeal has kept those applications from advancing.
Land rights and tribal sovereignty are old issues in Alaska, but the current case is bigger than most.
“This is probably the biggest issue that faces tribes right now,” Peterson said.
It’s also one of the most contentious.
No dissent at the top
The Central Council has not signed on to be a party to the lawsuit, but that hasn’t slowed Peterson from affixing the Council’s name to petitions advocating the state to settle.
The legal battle began under Gov. Sarah Palin and continued under Gov. Sean Parnell, both Republicans. When Walker, a former Republican-turned-independent, joined Mallott, a Democrat, Tlingit and clan leader, many hoped that their electoral win would settle the legal battle.
Mallott has been a longtime backer of giving tribes the right to put land into trust. In 1999, the Alaska Commission on Rural Governance and Empowerment, with Mallott as co-chair, formally recommended the state cooperate with tribal efforts to transfer land into his trust.
In his campaign, Mallott told Bethel voters in 2013 that he agreed completely with the notion of tribal sovereignty.
“By not recognizing tribes, it also continues to keep a divide between us as Alaskans that needs to be done away with,” he said in a KYUK-FM report.
On Aug. 25, Mallott changed his tone.
“I will support his decision,” he said of the governor’s action.
He explained that he believes, given time, Walker will change his mind.
“He is not doing it because he opposes tribal sovereignty,” Mallott said.
He simply hasn’t had the time to understand the issue, and the state couldn’t delay legal proceedings again. Furthermore, appealing now doesn’t mean the state will see the lawsuit through to a conclusion.
“I certainly and fully appreciate and understand the frustration,” he said. “I believe that I am in a position of working with Gov. Walker to get the state of Alaska to a point where tribes are able to exercise the full range of tribal responsibility and bring about trust, respect and understanding between Alaskan tribes.”
In the weeks before the appeal was announced Monday, Walker traveled to Akiachak, Tuluksak, Chalkyitsik, Barrow and Haines to talk about the trust issue and others facing rural communities. Mallott said that kind of outreach is appreciated.
“I think in the main, tribes have appreciated very much that response and that relationship,” he said.
After Monday’s appeal, that appreciation might fade quickly.
“Unfortunately, Gov. Walker needs to realize that it was the Native vote that got him elected, and now he’s risking alienating that support,” Peterson said.
Fish and game opposition
In its appeal, the state argues that widespread creation of trust land could lead to “a complex and confusing patchwork of dissimilarly governed areas.”
That could affect things as varied as fish and wildlife management. An Indian Country designation would allow tribes to apply their own regulations, something that has alarmed hunting and fishing organizations. In June 2014, writing on behalf of the Territorial Sportsmen, David Mastolier said: “To now consider layering lands owned by 200+ villages and 12 regional corporations over this jurisdictional landscape would be unfathomable. Over 200 separate tribes enacting their own fish and game regulations ... would be a resource management and conservation nightmare.”
He added that TSI, which conducts the Golden North Salmon Derby each year in Juneau, was “strongly opposed” to the Department of the Interior’s proposed land-into-trust rule.
That rule was approved in December but remains on hold thanks to the state’s appeal.
Indian Country is immune from state and federal taxation, another controversial point for some Alaskans.
The Tlingit-Haida Central Council has applied to put the Andrew Hope Building into trust, Peterson said. The organization is not taxed by the City and Borough of Juneau, but as Peterson explained, if the Central Council were to rent space in the building, that space could be taxed. Putting the building into trust would keep that from happening.
Alaska Natives suffer disproportionate levels of social and economic problems. Tribes contend that trust status would be a powerful economic tool to fix those problems.
“Socially, the suffering that we’re seeing is off the charts,” said David Voluck, a Central Council court magistrate and co-author of “Alaska Natives and American Laws,” one of the key legal texts addressing indigenous law in Alaska.
He says that when people point at ANCSA as an unchanging document that forever separated Alaska Native and Lower 48 laws governing American Indians, they’re off base.
“The idea that there was this wholly sacred intent, that there was the Founding Fathers of 1971 who wrote this,” is wrong, he said.