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Interior Rule on Trusts Nixed for Alaska Natives

(CN) - The Interior Department illegally excludes the indigenous Alaska Natives from the process of taking Alaska land into trust, a federal judge ruled.

After the United States acquired Alaska from Russia in 1867 and established a civil government seven years later, legislators agreed that Alaska Natives could continue to live on and use any land they possessed at that time. But a clause in the law - known as the Organic Act of 1884 - directed that future congressional acts would handle acquisition of title laws.

Throughout the 20th century, Congress established reservations and allowed Native tribes 160 acre parcels with restricted titles. And in 1936, lawmakers authorized the secretary of the Interior to take large swaths of Alaska into trust - presumably on behalf of Alaska Natives.

The 1971 Alaska Native Claims Settlement Act (ANCSA) attempted to settle all land claims by Alaska Natives by shuttering all but one reservation and extinguishing aboriginal titles. In exchange, the U.S. government paid nearly $963 million and relinquished 44 million acres of Alaska land to private corporations held by Alaska Natives.

Another debate erupted, however, as to whether the Interior Department still had the ability to continue acquiring Alaska land after ANCSA. Though the associate solicitor for Indian affairs opined 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.

The Interior Department limited its power, however, to set aside land in trust for only one tribe - the Metlakatla community, which migrated to Alaska from British Columbia in the late 1800s. That decision sparked a lawsuit against the department from four tribes of Alaska Natives and an individual, claiming differential treatment in favor of a tribe that is not even Alaska Native.

Pointing to the Indian Reorganization Act, which nullifies laws which discriminate among Indian tribes, the tribes challenged the secretary's decision to exclude Alaska Natives - and only Alaska Natives -from the land-into-trust application process. For its part, the state of Alaska argued that ANCSA actually requires differential treatment since it deprived the secretary of the power to take most Alaska land into trust.

U.S. District Judge Rudolph Contreras disagreed this week and found that 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,'" Contreras wrote. "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."

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."

By refusing to take additional land except for the Metlakatla Indian community, the Interior Department diminished the rights of Alaska Natives in favor one single group, and its rule is therefore invalid under the Indian Reorganization Act, the court found.

"The secretary's second argument that [provisions of the Indian Reorganization Act] only prohibits discrimination between 'similarly situated' tribes, and, Alaska Natives are not 'similarly situated' to any other tribes because of the Claims Settlement Act," Contreras wrote. "But 'similarly situated' appears nowhere in the statutory text, and the Secretary cannot invent a limitation on the statute any more than he could import one from the public statements of individual legislators."

He added: "The secretary does not deny that his regulation diminishes the privileges available to tribes of Alaska Natives (except for the Metlakatlans) relative to the 'privileges ... available to all other federally recognized tribes by virtue of their status as Indian tribes.' Instead he asks the court to adopt limiting constructions that have no basis in the statutory text. But a law 'is not susceptible to a limiting construction' when 'its language is plain and its meaning unambiguous.' The Secretary offers no other arguments, and the challenged regulation shall therefore 'have no force or effect.'"

After granting the plaintiffs summary judgment, Contreras ordered additional briefing as to the proper remedy.

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