The Interior Department announced Wednesday it will consider taking Alaska tribal land into trust, a move that could lead to pockets of “Indian country” in the state where tribal governments and courts would have authority to create their own laws and justice systems.
The move is opposed by the state, which has said that Indian country exists only on the state’s sole reservation, Metlakatla, in Southeast. Alaska Native tribes, supported by nonprofit law firms, said the Interior Department should have been taking land into trust years ago and had sued in federal court to affirm that belief.
A judge in Washington, D.C., agreed last year. The state has appealed to the D.C. Circuit U.S. Court of Appeals, but the Interior Department acted on the ruling by U.S. District Judge Rudolph Contreras.
The Interior Department is opening a 60-day comment period on the proposal.
“Everyone’s going to weigh in,” said Matthew Newman, an Anchorage attorney with the Native American Rights Fund. He expects the state, the Alaska Federation of Natives, Alaska Native corporations and tribes to submit comments, among others. Based on comments, Newman said, it’s possible the proposed rule won’t be adopted.
“I would not be bold enough to say it’s a sure thing,” Newman said. But even if the regulation is adopted, it would only authorize the Interior Department to accept applications for trust status. Approvals could take a long time and are not guaranteed, he said.
“We’re years away from a particular parcel being placed into trust status,” Newman said.
Acceptance of Indian country in Alaska was a key recommendation last year of the Indian Law and Order Commission, a bipartisan presidential and congressional task force. The commission attributed high rates of domestic violence and sexual assault in rural Alaska to the state’s top-down, centralized law enforcement and judicial systems. It recommended that tribes get increased authority to create their own local laws and to enforce them in tribal courts.
“Recent blue ribbon commissions have emphasized the need for the (Interior) Department to be able to take land into trust in Alaska,” the Interior Department said in announcing the proposed rule. “The basic thrust of the Indian Law and Order Commission’s recommendation is that the state of public safety for Alaska Natives, especially for Native women who suffer high rates of domestic abuse, sexual violence and other offenses, is unacceptable; providing trust lands in Alaska in appropriate circumstances would provide additional authority for Native governments to be better partners with the State of Alaska to address these problems.”
The rule barring the Interior Department from taking Alaska tribal lands into trust dates back to 1980, when the program was created for Native Americans in the Lower 48. It is one of several “Alaska exceptions” on the books denying Alaska Natives the same rights as Indians in the Lower 48 and in part is the legacy of the 1971 Alaska Native Claims Settlement Act.
Four village tribes sued in 2006 to overturn the rule — Akiachak and Tuluksak in the Kuskokwim River region, the Chilkoot Tribe in Haines and Chalkyitsik in Northwestern Alaska. They argued that the rule discriminated against Alaska Natives, and cited laws going back to the treaty under which Russia ceded Alaska to the United States that guaranteed land rights to the aboriginal people.
Newman said that if the new Interior rule is adopted and the department begins to take Native lands into trust, it would affirm the notion that Indian country exists in Alaska.
“It’s the embodiment of what Indian country is — geography upon which a tribe exerts its sovereign authority,” he said.
In a prepared statement, U.S. Sen. Mark Begich, D-Alaska, said Wednesday he had been urging the Department of the Interior to accept trust applications from Alaska Natives.
“In my view, DOI’s actions today are an important step to ensure Alaska tribes are self-determined and can adequately address public safety, economic development, and other priorities on tribal lands,” Begich said.