BETHEL -- The administration of Alaska Gov. Bill Walker is moving forward with an appeal in a significant court case that could ultimately turn millions of acres of Alaska into Indian country if the state loses.
The case concerns efforts by four tribal governments and a Barrow resident to have their lands taken into trust by the federal government, which provides legal protection for land and also gives tribes jurisdiction over a geographic area.
The tribal control would be limited, but could extend to areas such as misdemeanor crimes, land use, gambling -- though not casinos, the state says -- and taxes.
The state appeal suggested one development that could end up in trust is Tikahtnu Commons, a large shopping center and movie complex in East Anchorage that owner Cook Inlet Region Inc. bills as "Alaska's premier retail and entertainment center." The village corporation for Eklutna claims to be the largest private landowner in Anchorage, another source of land that the appeal says could end up in federal trust.
"The state and the Municipality could lose valuable tax revenue if this land base is taken into trust," the court filing said.
In the case of Tikahtnu, that would require CIRI to turn over ownership of its prized retail development. CIRI, which isn't part of the court fight, "holds its land very close. We just can't imagine giving it over to anyone," spokesman Jason Moore said.
The state warns that each of Alaska's 229 federally recognized tribes could form its own governing system.
"Trust land and Indian country could confuse Alaskans and nonresidents who could be subject to a patchwork quilt of legal and regulatory authorities, depending on where they are and whether they are a tribal member or nonmember," the state appeal filed Monday said.
Tribes disagree that confusion and uncertainty would result. Federal laws already on the books govern activities such as mineral leasing, water rights and subsistence hunting and fishing. State and federal criminal codes will still apply but tribes could gain arrest powers. Tribes and the federal government would have concurrent jurisdiction in many areas, said Matt Newman, a lawyer with the Native American Rights Fund, the firm that brought the challenge back in 2006 against the Department of Interior.
"The fact of the matter is that the body of law surrounding trust lands and their administration is well developed through statute, regulation and case law," Newman said.
Gov. Bill Walker in recent weeks traveled to the village of Akiachak and other communities involved in the court fight to speak to tribal members firsthand. He told reporters Tuesday that he went to listen, and learned a lot about "what was important to them, what do they hope to accomplish through lands into trust."
He said he didn't try to make a deal to settle the case.
His administration inherited the lawsuit and the steps to resolving it aren't yet certain, he said.
"I think the relationship between tribes and the state is not good, had not been good for a long time," Walker said.
Still, tribes had hope, Newman said.
In January, just a month after Walker took office, the state sought a six-month delay in the case while it considered whether to continue the appeal. Then in July it received a 30-day extension. On Monday, time ran out.
Village residents thought Walker was ready to quit the fight, Newman said.
"He had these conversations and said to all the parties, very frankly, he wants a new day, a new relationship between the state of Alaska and the tribes," the lawyer said. "And there was this tremendous enthusiasm."
But instead, the state filed a 77-page opening appeal brief that Newman called "a full-on assault."
"To have the governor really inspire that sense of hope and then to so quickly turn around and crush it has been very devastating for some folks," Newman said.
Support for tribal trust lands goes deep.
Liz Medicine Crow, president of the First Alaskans Institute, and Troy Eid, a former U.S. Attorney who chaired the federal Indian Law and Order Commission, last month urged the governor to drop the court fight.
"Gov. Walker, Alaska's rural public safety system is broken," they wrote in a published opinion piece. "The state has the opportunity to change this paradigm by defining a new way forward for the state in partnership with tribes."
Walker told reporters his dialog with tribes was continuing.
"I expect this to be an ongoing discussion," the governor said.
In one big step, the governor said, he intends to create a tribal board to advise him on issues.
This one court fight will not bring closure for tribes, he said. His administration has taken other steps that tribes applauded, such as recognizing tribal protective orders.
The case involves Akiachak Native Community, Chalkyitsik Village, Chilkoot Indian Association -- the tribe in Haines, and Tuluksak Native Community, as well as Barrow resident Alice Kavairlook, who is seeking trust protection for her land.
Tribes wanted the federal government to hold their land in part to ensure it is there for generations, Newman said. Akiachak wanted more power to enforce a ban on alcohol. Kavairlook, who regained land that used to be a designated Native allotment, wanted to shield it from taxes, as is done for allotments.
The tribes sued the Department of Interior in 2006 over a regulation that prohibited them from petitioning for their lands to be taken into trust. The state joined in to fight the suit.
At the time, both the federal and state governments viewed most of Alaska's tribes as being in a different category than those in the Lower 48 because of the 1971 Alaska Native Claims Settlement Act, or ANCSA. That act revoked Indian reservations except for the one on Annette Island for Metlakatla Indian Community. Instead, it settled aboriginal land claims with $962 million -- $500 million from the state – and title to 44 million acres granted to Alaska Native regional and village corporations.
Congress never intended for Alaska Native lands to be returned to reservations or otherwise held in trust by the federal government, the state argues. Through the corporations, Alaska Natives had paths to success that Lower 48 Native Americans did not, the state says. The law specifically did not treat Alaska Native people as wards, the state says.
But in 2013, a judge in U.S. District Court in the District of Columbia found that Alaska tribes were entitled to the same trust protections as those in the Lower 48. The Department of Interior in 2014 dropped its appeal and has published a rule for how lands-into-trust program would work in Alaska.
All tribal lands would not instantly go into trust, Newman said. Tribes would have to petition the secretary of Interior for trust status on parcels they own outright, and each request would be evaluated. Native corporation land wouldn't be eligible -- land would have to be transferred first to tribes, he said.
An estimated 6 million acres of land are tribally owned in Alaska, though it's not cataloged.
Tribes could put those trust lands to use as they see fit, Newman said -- as wilderness, for elder housing, for stores.
Walker said the fears that trust designations will be harmful to Alaska are probably overstated, but so are the hoped-for benefits.
Alaska Dispatch News reporter Nathaniel Herz contributed to this story.