Judge Stays Holding of Alaska Land in Trust

     (CN) - An appeal involving indigenous Alaska Natives requires halting the Interior Department from taking land into trust in Alaska, a federal judge ruled.
     The Akiachak Native Community and other tribes filed a federal complaint in Washington, D.C., against the federal agency and state last year over a decision to exclude Alaska Natives - and only Alaska Natives - from a land-into-trust application process.
     Though legislators agreed, back when the U.S. territory adopted a civil government in 1874, that Alaska Natives could continue to live on and use any land they possessed at that time, a clause in the law - the Organic Act of 1884 - directed that future congressional acts would handle acquisition of title laws.
     Congress established reservations and allowed Native tribes 160 acre parcels with restricted titles throughout the 20th century. And in 1936, still decades before Alaska was granted statehood, lawmakers authorized the secretary of the Interior to take large swaths of Alaska into trust - presumably on behalf of Alaska Natives.
     The Alaska Native Claims Settlement Act (ANCSA) in 1971 attempted to settle all land claims by Alaska Natives by shuttering all but one reservation and extinguishing aboriginal titles. The federal government, in exchange, paid nearly $963 million and relinquished 44 million acres of Alaska land to private corporations held by Alaska Natives.
     Further debate erupted, however, as to whether the Interior Department could still acquire Alaska land. Though an associate solicitor for Indian affairs argued that ANCSA prevented the department from taking more land, the secretary decided in 2001 against implementing a proposed rule that would have barred his department from taking Alaska land in trust.
     Citing a decision to set aside land in trust for only one tribe - the Metlakatla Indian Community, which migrated to Alaska from British Columbia in the late 1800s - four Alaska Native tribes filed suit over the supposedly flawed land-into-trust application process.
     The natives claimed differential treatment in favor of a non-native tribe under the Indian Reorganization Act, and U.S. District Judge Rudolph Contreras found last year that Alaska had illegally excluded indigenous natives from the process of taking land into trust. Contreras also said the Alaska exception within the ANSCA did not expressly revoke the Interior Department's land-into-trust authority.
     "There may be a tension between ANCSA's elimination of most trust property in Alaska and the secretary's authority to create new trust land, but a tension is not an 'irreconcilable conflict,'" that March 2013 opinion by Contreras states. "It is perfectly possible for land claims to be settled by transferring land and money to tribal corporations, which the Secretary retains the discretion - but not the obligation - to take additional lands (or, perhaps, those same transferred lands) into trust." (Parentheses in original.)
     Contreras continued: "Although ANCSA instructed that 'the settlement should be accomplished ... without creating a ... lengthy ... trusteeship,' the fact that the settlement would not create a trusteeship does not necessarily mean that it prohibits the creation of any trusteeship outside of the settlement. Because it is possible to give effect to both ANCSA and the statute giving the secretary land-into-trust authority in Alaska, it is the court's obligation to do so."
     The Bureau of Indian Affairs then proposed a rule in April 2013 to formally remove the Alaska exception and to consider the acquisition of lands into trust on behalf of Alaska Native tribes.
     Alaska, in its May response, moved for a stay and injunction pending appeal.
     Contreras noted last week that Alaska had specifically wanted to "enjoin the secretary's rulemaking activities, including accepting comments on the recently proposed rule, and enjoin the secretary from accepting and processing applications to take land into trust for Alaska tribes, pending resolution of the appeal."
     In granting and denying that motion in part on April 26, Contreras said the proposed rule and process of accepting applications for taking land into trust "does not constitute irreparable harm."
     "Because the court concludes that the proposed rule and the process of accepting applications for taking land into trust does not constitute irreparable harm, it will deny Alaska's motion to enjoin the Secretary from engaging in those activities," the 16-page ruling states. "However, because the court concludes that irreparable harm to Alaska will result if the Secretary is permitted to actually take land into trust for Alaskan tribes, it will grant Alaska's motion on that ground, and enjoin the Secretary from taking land into trust pending disposition of the appeal in the D.C. Circuit."
     Contreras found, repeatedly, that Alaska presented "the stronger argument."
     "There is a public interest in having certainty over title to land in Alaska maintained," Contreras wrote. "If the secretary were able to take land into trust pending the outcome of the appeal, and the D.C. Circuit reversed this court's decision, title to land in Alaska would be clouded at best, and ensuing litigation would likely require energy and expense from the federal government, the state of Alaska, and all Native tribes involved. Such confusion over land title is not in the public interest, and as such, the public interest favors a partial injunction pending appeal."
     Contreras also enjoined the secretary of the Interior from taking any land into trust in Alaska, pending the outcome of the appeal, and clarified that the ruling does not apply to the pre-existing exception for the Metlakatla Indian Community.
     "The secretary of the Interior is hereby enjoined from taking land into trust in Alaska (except for the Metlakatla Indian Community of the Annette Island Reserve or its members, as set forth above) until the D.C. Circuit issues a ruling and mandate resolving Alaska's appeal," Contreras wrote (parentheses in original).