JUNEAU — In Washington, D.C., attorneys for the State of Alaska are arguing the most important Indian Law case to hit the justice system from Alaska this century.
Back in Alaska, few believe the state will win.
After the state appealed a federal district court decision upholding the right of Alaska Natives to put land into federal trust, the Juneau Empire contacted leading Indian Law attorneys unaffiliated with the lawsuit to gather their thoughts.
Of the five who spoke to the Empire, none believe the state will win.
“Personally, I don’t think the state will win in the D.C. Circuit,” said Kristi Williams, a Gwich’in Athabascan attorney who is bar-licensed in D.C. and owns her own consulting firm. “If I was a betting person, I’d say they will lose this appeal in the D.C. Circuit.”
Why it matters
The land-into-trust issue is the biggest legal case you may never heard of.
Since 2006, four tribes and one individual represented by the Native American Rights Fund have been suing for the right to put land into federal trust, creating “Indian Country” in Alaska.
Putting land into federal trust protects it from state and local taxes, grants it protection in lawsuits and makes the tribe eligible for federal grants that benefit Indian Country.
“It is greatly protected,” explained David Case, the now-retired lead author of “Alaska Natives and American Laws,” the definitive textbook on Indian Law in Alaska.
Indian Country in Alaska (so far only found in Metlakatla and a few isolated individual parcels) also falls under the jurisdiction of tribal courts.
“What it would mean is that it would be clearer tribal jurisdiction … when it comes to people misbehaving,” Case said.
In some cases, that authority would stretch to people who aren’t members of a tribe.
Why trust has a problem
In 1934, the U.S. Congress passed the Indian Reorganization Act, which permitted the Department of the Interior to take Indian land into trust for individuals and tribes.
That power was extended to Alaska two years later and it lasted for 35 years, until the Alaska Native Claims Settlement Act was passed. The act almost entirely erased “Indian Country” in Alaska, but it didn’t explicitly revoke the authority of the Secretary of the Interior to put land into trust in Alaska.
In 1978, a Bureau of Indian Affairs attorney wrote a memorandum stating that the intent of ANCSA, though the trust issue wasn’t explicitly addressed, revoked the right of the federal government to put Alaska Native land into trust.
Two years later, the Department of the Interior formalized the “Alaska Exemption.”
Until 2001, that exemption stayed untouched despite efforts by tribes to change it. In that year, a Bureau of Indian Affairs attorney reversed the 1978 memorandum and said ANCSA wasn’t clear enough.
The federal government started writing a standard for taking land into trust in Alaska, but it abruptly stopped, leaving the exemption in place.
In 2006, tribes and individuals sued in seeking trust powers. Seven years later, U.S. District Court judge Rudolph Contreras ruled the plaintiffs had won. The state has appealed, and the district court ruling is on hold.
Why the state opposes trust
When it filed its appeal Aug. 24, the state’s key argument was simple: ANCSA eliminated the ability of the federal government to put land into trust.
“Legislative history and subsequent amendments to ANCSA demonstrate that Congress considered and rejected trust land,” the state’s opening brief says in part.
If trust land becomes widespread, the state explains, “trust land in Alaska would diminish the state’s authority by creating islands of land within its borders potentially controlled by 229 competing sovereigns.”
There are 229 federally recognized tribes in Alaska, and the state believes that it “could also lose authority to impose ... land use restrictions, natural resource management requirements, and certain environmental regulations” on land taken into trust.
If that happens, Alaska would include territory governed by a “patchwork quilt of legal and regulatory authorities.”
Breaking down the state’s argument
Geoffrey Strommer is an attorney in Portland with extensive experience in Alaska Native and American Indian law. This spring, he wrote an article in the American Indian Law Journal breaking down the Alaska trust issue.
By telephone, he explained that the onus is on the state to prove that Judge Contreras’ district court decision was wrong.
“I think judge Contreras struck the right balance,” he said. “It’s rational, it interprets both statutes (ANCSA and the Indian Reorganization Act) in a fair and appropriate way.”
“I think it’s defensible,” Case said, agreeing with Strommer’s comments and Contreras’ decision. “It says, correctly, despite the long history, that it’s pretty simple ... Congress has never repealed the land into trust statute.”
Case explained that Congress amended ANCSA every Congress for 40 years, and that the state is acting as if the original act was perfect and wholly understandable.
David Voluck, Case’s coauthor and a magistrate with the Central Council Tlingit and Haida Indian Tribes of Alaska, said the state is treating ANCSA like the U.S. Constitution — irrevocable and untouchable — but there are no “Founding Fathers of 1971.”
Williams said the notion that wide swaths of Alaska will be put into trust is unlikely. “Right now, to think that the whole landscape is going to change … I think that’s a completely unfounded fear,” she said.
While some tribes do have large amounts of land — Venetie with 1.8 million acres is the best example — most have no land at all, and they don’t have the resources to purchase it.
“Tribes right now don’t have the currency to purchase large swaths of land,” she said.
Even if they did have the money or the land, the land-into-trust process involves an extensive public process including public comment and testimony from non-tribal members.
“The (Bureau of Indian Affairs) isn’t going to just rubber-stamp large parcels into trust,” she said. “There’s a whole list of things that have to be done.”
What’s more likely are cases like one she’s working on now. She is working with a tribe — she wouldn’t identify which one — that has over 100,000 acres of land. It’s seeking to put only the land beneath its tribal offices into trust. That would give it eligibility for federal Indian Country grants.
“I think a lot of tribes are looking at it in the same way,” she said.
Strommer said he thinks the state’s arguments about tribal court jurisdiction are exaggerated.
There are “very limited circumstances where a tribe can exercise jurisdiction,” he said. It’s “certainly not a broad and expansive authority.”
In Alaska, Case said, the regulation of fish and game is a criminal matter, which means that regulating on trust land will be less difficult than the state believes.
The bottom line, Strommer said, is that “these are rights that frankly, everywhere else in the country tribes have.”
No simple matter
In addition to the separation between the state and tribes that are suing, Native organizations across Alaska have different views on land into trust. Native regional and village corporations could see some of their authority eroded in favor of tribal authority. This has led many of those corporations to express mixed feelings about the concept of land into trust.
“Despite our support in concept,” Sealaska Corp. general counsel Jaeleen Araujo wrote in 2014 on behalf of the corporation, “we believe that in most situations, the land status in Alaska could result in complications not contemplated in the current land into trust regulations.”
Nicole Borromeo, general counsel of the Alaska Federation of Natives, said it’s hard to say if the state will win its appeal and that land into trust is a controversial issue.
“It’s controversial because the Alaska Native community has many different layers of interest,” she said. “There’s many different avenues and questions here that need answers.”
Last year’s Alaska Federation of Natives conference featured extensive discussion of land-into-trust issues, and this year’s conference will as well. A workshop on the subject will take place on the day before the conference’s opening day. Borromeo said AFN is “following the issue closely” but hasn’t jumped into the legal arguments.
What comes next
With the state’s appellate document less than two weeks old, the ball is now in the hands of the Native American Rights Fund, which has until the end of September to rebut the state’s arguments.
Once that document is filed, the two sides will again trade written arguments with a deadline just before Halloween. Oral arguments are expected to follow, and the appeals court could rule sometime next year.
The Empire offered the state an opportunity to rebut the comments made by the five attorneys, but it declined to do so. By email, Department of Law spokeswoman Cori Mills wrote, “We stand by the legal reasoning and position stated in our opening appellate brief, and believe that our position is legally sound. ... We would be happy to answer factual questions but otherwise, we rely on our legal briefing to present the State’s legal arguments and await the Court’s decision.”
Unless the case is dropped, an appeal to the U.S. Supreme Court is expected to follow. The state’s argument includes a reference to the constitutionality of the district court decision, something that could give the Supreme Court grounds to take up the case.
If the case makes it to the Supreme Court, two familiar faces will take center stage. Heather Kendall-Miller, the lead attorney for the Native American Rights Fund on this case, also argued the Venetie case, the last major Alaska Native decision to reach the Supreme Court.
Operating against her on behalf of the state was a famed attorney named John Roberts.
He’s now the chief justice of the Supreme Court.
Who the Empire consulted
• Kristi Williams, Gwich’in attorney, member of the D.C. Bar and owner of G2G Strategies
• David Case, Indian Law attorney (retired) and lead author of “Alaska Natives and American Laws” (3rd edition)
• David Voluck, Central Council Tlingit and Haida Indian Tribes of Alaska Tribal Court Magistrate and coauthor of “Alaska Natives and American Laws” (3rd edition)
• Nicole Borromeo, Alaska Federation of Natives general counsel
• Geoffrey Strommer, partner at Hobbs, Straus, Dean & Walker LLP, lead author on “Placing Land Into Trust in Alaska” in the spring 2015 issue of the American Indian Law Journal