New AG has tightrope to walk for lands-into-trust path

  • Alaska Attorney General Jahna Lindemuth is working with stakeholders on the lands-into-trust issue after Gov. Bill Walker decided not to appeal a recent court decision allowing the transfers. Photo/Elwood Brehmer/AJOC

New Alaska Attorney General Jahna Lindemuth has been given a tricky assignment by Gov. Bill Walker: forge a compromise on lands-into-trust, a contentious issue that is developing around the legal status of certain Alaska Native lands.

Unless resolved, this has the potential to divide Alaskans, many believe.

Opinions are sharply divided, for example, between Alaska tribal groups and Native corporations who are now large private landowners. Tribes in Alaska mostly don’t own lands, unlike in the Lower 48 where there are reservations. Some tribes, however, want to own lands in trust with the federal government, which could give them certain autonomous powers.

Potentially, this is a move in the direction of having Lower 48-type reservations in Alaska. Alaska Native corporations formed under the Alaska Native Claims Settlement Act of 1971 are private landowners operating under state laws. Tribes with lands in trust would fall under a different framework. Many of the Native corporations are leery of the tribal lands-into-trust effort.

The State of Alaska is affected, along with business interests and resource-user groups, if there is uncertainty about governmental powers over different land tracts. There are over two hundred tribes in Alaska, so it could become a problem.

Lindemuth is charged with getting this herd of cats, all spitting at each other, moving in one direction, and at the same time protect state interests and those of private citizens.

Walker, Lindemuth’s boss, has decided to accept, for now, a federal court’s decision to allow the U.S. Interior Department to accept private lands put into trusts with the federal government on behalf of Alaska Native tribes.

Lindemuth announced August 15 that she will not appeal the D.C. Circuit Court of Appeals decision on a lawsuit over the issue to which the state was a party.

When lands are placed in trust on behalf of a tribe, the U.S. Interior Department, through the Bureau of Indian Affairs, becomes the official manager of the land for the benefit of a tribe, with the actual management typically delegated to the tribe. This is essentially the way Native American reservations in the Lower 48, which are essentially self-governing entities, are functioning. 

Reservations there have their own tax and police powers and typically assume other powers including fish and game management and environmental enforcement, although these are typically under co-management systems with the relevant federal and state agencies.

Lindemuth said it’s not clear that the Lower 48 reservation model or the types of autonomous powers that Lower 48 tribes have would actually be applied in Alaska. All that will have to be worked out, she said.

“We have to figure our what this will look like, and it will take a lot of dialogue with all the stakeholders,” Lindemuth said.

At this point it’s not a huge controversy.

“There is actually very little land that can be put into trust right now. The federal government controls over 60 percent of Alaska, the state owns 28 percent and the ANCSA corporations about 12 percent. There is less than 1 percent in private ownership,” and it is not known how much that is land now owned by tribal entities, Lindemuth said. 

“What is motivating the tribes is a desire to have a more active role in criminal justice issues,” she said, which in the case of tribal police powers works best if there were specific land areas around villages over which police would have clear jurisdiction to enforce tribal law.

But Lindemuth must look further down the road to the possibility that larger land tracts may be place in trust, with a more expansive list of powers asserted. “The state must maintain its ability to manage resources like fish and game,” she said.

The issue has raised concerns among Alaskans, however, who see lands-into-trust as the opening wedge in the creation of reservations in Alaska that would assert autonomous legal powers, known as “Indian Country,” creating a series of pockets of autonomous entities within the state. There are 229 recognized Native tribes in Alaska, so in theory that many pockets of autonomy could be created.

Lindemuth said such worries may be overblown. It is likely that there will be only a limited number of relatively small Alaska land tracts, she believes. First, tribes must own the lands to be put into trust and it is unknown just how many Alaska tribes actually own lands.

Substantial lands are owned by Alaska Native regional and village corporations, which are private corporations organized under state law under the Alaska Native Claims Settlement Act of 1971, or ANCSA. State law therefore governs Native corporation lands.

Currently, the actual acreage eligible for trust applications would seem very limited.

However, if the ANCSA corporations were to decide, for their own reasons, to put their very large land tracts into trust status, it would be a very different question.

This is unlikely to be a position taken by the large regional corporations who are mostly engaged in business and natural resource development and who would seem to have less to gain from having lands in trust, but it could very well be a course selected by some village corporations.

Many of these are in communities struggling with a range of social and economic issues that trust status might ease, and where the functions of the private village corporation and tribal entities might better be done under a tribal government that would have more flexibility to address problems, and who would also have access to federal funds.

There are some real complications with this that might discourage village corporations from taking this path, Lindemuth believes.

She emphasized, however, that the U.S. Appeals Court decision was only on a procedural issue, and the basic question of whether lands-into-trust are legal in Alaska, and were not extinguished by ANCSA in 1971, is unresolved.

The state can always go back to court on the fundamental question, she said.

Here’s the background:

The Alaska Native Claims Settlement Act of 1971 settled the issue of aboriginal claims to Alaska lands with an agreement to transfer 45 million acres of federal lands in the state to Alaska Native regional and village corporations, which are private corporations organized under state law.

At the time, neither Congress or the Alaska Native groups promoting the settlement wanted Lower 48-type reservations, which carried with them federal oversight. In accord with this, the language of ANCSA seemed to prohibit Alaska lands being placed into trust, but there were different interpretations. The Interior Department’s regulations, however, held that Alaska lands were not eligible to be put into trusts.

In 2006, Alaska Native tribal entities in Akiachak vs. U.S. Secretary of the Interior, challenged these regulations, and the state entered the lawsuit on behalf of the Interior Department, the defendant. In 2013, the U.S. District Court issued a decision in favor of the tribes, striking down Interior’s regulations.

The decision was appealed, and the state joined the appeal. However, the department meanwhile changed its policy and its regulations and began accepting applications for lands-into-trust from tribal groups although it was only the application that was allowed, not the actual placement of lands.

This action removed the purpose of the original lawsuit, so the appeals court voided the case but at this point it was mainly a procedural issue. The basic question of whether ANCSA prohibits lands-into-trust, or the merits of the appeal of the District Court case, was not decided. The state still retains the option of raising the original issue again.

Could village ANCSA corporations put their private lands into trust status?

The only likely situation where there might be large land tracts placed into trust is if village corporations opt to pursue that (regional corporations are unlikely to do so). This, of course, is what the Venetie case was about, in 1998, when two villages in the former Venetie reserve, asserted tax authority over local businesses citing their lands as having “Indian Country” status.

The U.S. Supreme Court ruled against Venetie and Arctic Village, saying that the lands were granted under ANCSA and were not eligible for Indian Country status, with autonomous tax powers for the two village tribal entities. (Many see the current lands-intro-trust move as a way to get around the Venetie decision.)

The problem Attorney General Lindemuth sees in any ANCSA village corporation initiative for lands-into-trust is the complication of potential split-estate with surface lands going to the tribe and subsurface rights remaining with the regional corporation.

This is what ANCSA prescribes except in the few former reserves established in Alaska where the villages had the right to take all land rights in the reserve, surface and subsurface, into full ownership by the villages, and not participate in any of the benefits of the regional corporation, such as dividend payments to shareholders.

From a practical standpoint there’s no reason why split tribal-regional corporation surface-subsurface couldn’t work — it is split now between the ANCSA regional and village corporations — but there could be legal and procedural complications for the Interior Department in working out such arrangements, which are mostly unknown in the Lower 48.

If there are legal hurdles for the Interior Department, could the regional corporation agree to transfer limited subsurface estate, under the village’s surface lands? If there was absolutely no potential for minerals discoveries this could occur, but it would occur only in isolated situations, it seems.

All this is unclear, Attorney General Lindemuth says.

“The federal government may well allow split estate in lands transferred to trust status, but if the regional corporation (which owns the subsurface) objects, it is difficult to see how an application (for trust status) would be approved … My initial opinion is that it’s hard to see how allowing split-estate would make sense,” she said. Also, the question as to whether the state has any sort of veto power, or any special standing, in an Interior Department decision on an application is unclear, she added.

In any event, Lindemuth hopes to get a dialogue going with ANCSA regional and village corporations with the goal of getting an agreement that protects the state’s interests in unified fish and game management and environmental protection, and minimizes any conflicts on taxation issues.

“This is an issue that is critical to the future of Alaska, and it’s important that we get it right. We can’t just let some judge decide this,” she said. It has to be worked out in a negotiation.

Meanwhile, the state is already engaged in discussions of crime and justice issues with tribal groups — issues which spurred the original lands-into-trust application in 2006 — and will soon have agreement on a limited transfer of lower-level criminal cases involving Alaska Natives to tribal courts, according to the attorney general.

09/01/2016 - 9:39am