State Files Opening Brief in Akiachak Appeal
August 24, 2015
(Anchorage, AK) –Whether or not the federal government should be able to take lands into trust in Alaska presents complex policy issues for Alaska Tribes, the State, and all Alaska citizens. The Department of Law received numerous comments on both sides of the issue, illustrating the interest and passion that surrounds this topic.
“Many of the comments I received, whether pro or con, made good points. It is clear that there are good elements and bad elements about the creation of trust lands in Alaska for both the Tribes and the State,” said Attorney General Craig Richards. “But ultimately this is a fundamental change to a law that has been in place for over 30 years, and a change of that magnitude requires thorough and deliberative dialogue that can’t occur in just a matter of months. The current legal question will continue before the courts, but the State’s policy position will also continue to develop in dialogue with the citizens of Alaska, including Tribes.”
When the federal government takes land into trust, it holds it for the benefit of an individual Alaska Native or a Tribe. It is the federal government’s position that this land becomes Indian country—a legal status that can be likened to an Indian reservation. Currently, Alaska has only one reservation—the Metlakatla Indian Community’s reservation on the Annette Islands Reserve. Indian reservations are generally exempt from state jurisdiction, including taxation, except when Congress specifically authorizes such jurisdiction.
If lands are put into trust in Alaska, the exact scope of federal, state, and tribal powers on trust lands would be played out as specific factual scenarios develop. Alaska would retain some civil and criminal powers over trust lands because Alaska is a P.L. 280 state. But generally, the federal government has the power to manage tribal and individual land that it holds in trust. The federal government will potentially have powers to approve and cancel leases of tribal trust land; as well as to govern the leasing of mineral resources (including oil and gas), regulate certain fishing activities, manage timber resources, issue grazing permits, and deal with certain water rights and irrigation matters on trust land. And Tribes have jurisdiction over civil and regulatory matters occurring on trust land. Gaming can occur on certain trust land in accordance with the Indian Gaming Regulatory Act.
The current legal question before the D.C. Circuit Court of Appeals is whether the Alaska Native Claims Settlement Act prohibits the federal government from taking lands into trust in Alaska. This lawsuit, Akiachak Native Community v. Salazar, was filed in 2006 by four Tribes and one individual challenging a longstanding “Alaska exception” to the regulations governing the creation of trust land. Until the D.C. District Court’s 2013 decision invalidating the Alaska exception, the Alaska exception had been in place ever since the trust land regulations were published in 1980. Alaska was singled out in the regulations because of the unique land claims settlement enacted by Congress in the Alaska Native Claims Settlement Act (ANCSA). 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” in Alaska. ANCSA did not provide land to Alaska tribal governments. Instead, ANCSA provided 44 million acres of fee land and nearly one billion dollars ($962.5 million) in state and federal money to state-chartered regional and village Native corporations.
In 2014, the State appealed the district court’s decision striking down the Alaska exception to the trust regulations. The court stayed the case to allow the State to examine the issues further. Today, the Department of Law filed its opening appellate brief in the case.
- Opening brief - (PDF 280K)
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