After decades of opposing Alaska Native tribal trust lands, the federal government is taking major steps to once again allow lands to be taken into trust for the 228 tribes in the 49th state.
On April 30, Assistant Secretary – Indian Affairs Kevin K. Washburn announced the Department of the Interior’s reversal of long-standing policy that has been carried out under Democratic and Republican administrations since the early 1970s. In doing so, he proposed a rule that would allow the Secretary of the Interior to consider petitions from Alaska Native tribes that would allow Interior to take land into trust for them.
“Acquiring land in trust is one of the most important functions that the Department of the Interior undertakes on behalf of tribes,” Washburn said in a press release. “Restoring tribal lands to trust status is essential to ensure cultural preservation, self-determination and self-governance and to advance the social and economic development of tribal communities.”
The public, Washburn added, would have 60 days to comment, and a series of tribal consultations would take place before Interior would finalize its decision.
Tribal reactions have been widely supportive.
“Alaska Native tribes have been waiting for this for a long time,” says Heather Kendall-Miller, a lawyer with the Native American Rights Fund who for 19 years has battled in court Interior’s earlier decisions not to take lands into trust for Alaska tribes based on the department’s previous interpretations of the Alaska Native Claims Settlement Act (ANSCA) of 1971.
“This is a pretty big shift in policy,” she adds. “The federal government is now recognizing and acknowledging that its trust responsibility to tribes in Alaska is identical to those in the lower 48.”
Before ANSCSA, there were many tribal trust lands in Alaska, Kendall-Miller notes. But the reservations that previously existed there were forced to revoke their reservation status under a provision of the law. Some Alaska Natives followed provisions that allowed them to get their lands back, but many others did not, and since that time many have felt their sovereignty has been eroded.
Two recent developments encouraged Interior officials to change their interpretation, Kendall-Miller says. First, the Indian Law and Order Commission and the Secretarial Commission on Indian Trust Administration and Reform both recommended in the past year that the prohibition on trust lands in Alaska be removed in order to alleviate crime and other negative outcomes for Alaska Natives. Second, in a legal case known as Akiachak Native Community v. Salazar, the U.S. District Court in Washington, D.C. in 2013 ruled that the Secretary of the Interior has statutory authority to take land into trust for Alaska tribes.
Julie Kitka, president of the Alaska Federation of Natives, says her organization is pleased by this long-awaited opportunity. “We will vigorously participate, but first we need to ensure our community understands and has a chance to discuss internally,” she says.
Edward Thomas, the recently retired president of the Tlingit Haida Central Council, considers it a victory that Interior plans to comply with the Akiachak ruling, but he is concerned about the 60-day comment period offered by Washburn. “I find it contradictory in principle to invite public comment [for Interior to take] an illegal rule off the books when they (Interior) did not allow public comments when they put that rule in place,” he says.
On the federal front, Sen. Mark Begich (D-Alaska) says he is strongly in favor of the new provision, and he will do what he can to speed up the process.
“We look at this as a positive step that does not impact our Alaska Native Corporations created under ANSCA,” Begich tells Indian Country Today Media Network. “This just gives tribes new opportunities to have their lands put into trust and to have more self-determination and opportunities for economic development, social justice, and public safety.”
It remains to be seen whether the two other members of Alaska’s congressional delegation, Sen. Lisa Murkowski and Rep. Don Young, both Republicans, will sign off on the plan. Both have said they have questions and concerns about the proposal, and they do not want the Alaska Native Corporations created as part of ANSCA to be shortchanged as a result of the new policy.
The D.C. District Court has already ruled that there is nothing in ANSCA that should prevent Interior from taking lands into trust for Alaska tribes, but that decision is subject to an appeal that will likely be heard this coming winter. In cases of land disputes between tribes and corporations that could arise, there are already federal policies on the books to settle similar disputes involving tribes in the lower 48 states, according to multiple tribal legal experts.
Murkowski’s view, in particular, is being watched closely, Kendall-Miller says, since she won her most recent complicated re-election with the strong support of Alaska Native voters. The senator has shown willingness in the recent past to stand up against state Republican opinions on federal tribal policy by strengthening the Violence Against Women Act to offer improved protections for Alaska Natives over the objections of some state lawmakers.
Matthew Felling, a spokesman for Murkowski, says that she and her staff are “still closely examining the DOI proposal” on trust lands.
Begich says he is hopeful that Murkowski and Young will ultimately be on board for the rule change. “I think once they read it as we have, they will not see a threat to the incredible piece of legislation that is ANSCA,” he says. But he does expect the state of Alaska to fight the shift, because the current administration has expressed opposition toward many tribal issues to date.
Even if tribes in Alaska ultimately win the ability to have lands taken into trust, there will still be more waiting ahead, Kendall-Miller warns, as Interior tends to take plenty of time considering trust applications from tribes, and more lawsuits are always a possibility.
“There is not going to be an immediate cluster of tribal trust lands throughout Alaska in the immediate next one to five years,” Kendall-Miller says. “But, in the end, Alaska Native tribes will not continue to be treated as the ugly stepchildren or odd men out here. They are federally recognized tribes, and they are entitled to be treated the same.”