Alaska Tribes Allowed to Put Land Into Trust

(CN) — Alaska cannot halt new rules allowing the Interior Department to take land into trust for indigenous Alaskan tribes, a divided D.C. Circuit ruled.

The Akiachak Native Community and other tribes filed a federal lawsuit in Washington, D.C., against the U.S. Department of the Interior in 2013, challenging its interpretation of the Alaska Native Claims Settlement Act, or ANCSA, to exclude Alaska natives from a land-into-trust application process.

The 1971 Act sought to settle land claims by Alaska tribes 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.

For decades, the Interior Department interpreted the law to bar it from taking land into trust for indigenous tribes in Alaska.

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 purportedly flawed land-into-trust application process.

The natives claimed differential treatment in favor of a non-native tribe.

U.S. District Judge Rudolph Contreras found that Alaska had illegally excluded indigenous natives from the process of taking land into trust. Contreras also said the Alaska exception within ANCSA 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,'" the 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 into trust."

The Bureau of Indian Affairs then proposed a rule to formally remove the Alaska exception and to consider the acquisition of lands into trust on behalf of Alaska native tribes.

The state of Alaska opposed the rule change, and sought an injunction to prohibit the federal government from taking land into trust for Alaska tribes.

But the D.C. Circuit dismissed the state's lawsuit for lack of jurisdiction Friday.

"The State of Alaska disagrees with both the district court and Interior, and now seeks to prevent any new efforts by the United States to take tribal land in trust within the state's borders," Judge David Tatel said, writing for the panel's 2-1 majority. "Unfortunately for Alaska, which intervened in the district court as a defendant and brought no independent claim for relief, the controversy between the tribes and the Department is now moot."

Tatel said the case become moot once the Interior Department rescinded the Alaska exception.

However, Judge Janice Brown dissented, saying the court "today euthanizes a live dispute."

She said the issue should be decided on the merits.

"ANCSA has been recognized as a significant legislative accomplishment, bringing disparate interest groups together — the State of Alaska, native peoples, the federal government — to create a new system for land recognition that explicitly repudiated and replaced the paternalistic reservation model implemented in the lower continental states," Brown wrote. "The Department's new view of ANCSA runs counter to that historical narrative, and the express intentions of Congress. Whether the Department's view is accurate is a question deserving serious consideration."

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