With the date approaching for Gov. Bill Walker to decide if the state of Alaska will pursue an appeal against the decision in Akiachak v. Department of Interior, we need to understand what the case is about and what would result if the decision were to be overturned.
The Akiachak case, involving four Alaska tribes and one individual Native, was brought to court to challenge an "Alaska exception" in the Code of Federal Regulations. (25 C.F.R. § 151.1). Language in the code excluded tribes in Alaska, except for the Metlakatla Indian Community, from petitioning the secretary of the interior to take fee lands owned by tribes or Native individuals into trust on their behalf. The March 2013 decision held that the exception was discriminatory and therefore illegal. The DOI has published a new rule that removes the Alaska exception, but is enjoined from approving Alaska petitions pending the outcome of an appeal by the state of Alaska.
Here are some facts and fictions about the Akiachak decision:
Akiachak will result in large swaths of "Indian Country" throughout Alaska: False. The Akiachak decision does one thing; it ends discrimination and allows Alaska tribes and individual Natives to petition DOI to have fee lands they own be taken into trust. Tribes in Alaska own around 6 million acres of fee land, much of it in small parcels. The petitions are discretionary; DOI is not required to approve them. Even if all the tribally owned fee lands were taken into trust, this would result in just a tiny portion of Alaska's 375 million acres earning the designation of Indian Country in mostly small parcels dispersed throughout the state.
"Indian Country" is something to be afraid of: False. Indian Country is well established in many other states. Indian Country is legal terminology used to describe one or more of the following:
• all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights of way running through the reservation;
• all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and
• all Indian allotments, the Indian titles to which have not been extinguished, including rights of way running through the same. (18 U.S. Code § 1151).
It provides Indian tribes with established jurisdiction over land that allows them to govern properly, doing such things as providing effective law enforcement, establishing functional judiciaries, enforcing planning and zoning regulation, managing natural resources and raising revenue via taxation -- in other words, all the normal and expected functions of government. Tribal and state governments develop partnerships in the same way that states partner with neighboring state and local governments do, working together for mutual benefit.
Akiachak will force Alaska Natives onto reservations: False. Tribal trust lands are held in trust by the United States government for the use of a tribe. Tribes already own the lands they are submitting petitions for; they are not asking the government to reserve other land for them. The process is entirely voluntary; tribes that don't want Indian Country won't submit petitions.
Tribes will rush to place land into trust: False. Not all Alaska tribes own fee land and some that do may have good reasons for not wanting to place that land into trust. Trust status is not a cure-all and won't work for everyone. Like land owned in fee, trust lands have both advantages and disadvantages; each tribe will need to weigh these before submitting a petition.
Trust lands will provide financial opportunities for tribes: True. Lands held in trust status allow tribes to take advantage of federal programs restricted to trust lands, such as opportunities for business development, housing, court systems, and environmental and cultural protection.
All petitions will be approved: False. Successful petitions must include the purposes for which the tribe is requesting trust status. These must fall into at least one of three categories: (1) to facilitate tribal self-determination through governmental offices, health care and public services; (2) for economic development such as an industrial park or a shopping mall, and (3) for Indian housing. A petition that fails to satisfy at least one of these requirements is unlikely to succeed.
Trust lands will result in proliferation of casinos: False. While gaming is a form of economic development, it is governed separately; a successful lands-into-trust application does not mean that gaming can then take place. Limited Class II Indian gaming exists in Alaska but tribes cannot engage in Class III gaming, because the state does not allow it. If the state did allow some form of casino gambling, then a tribe would need to enter into a compact with the state to open a casino.
Trust lands will remove land from state and local tax rolls: True, if the property was previously taxed. Indian tribes with trust lands receive the same level of consideration as other government bodies in the United States. Federal, state and local governments don't pay property tax because the land is owned for the benefit of their constituents. An Alaska tribe placing property it owned within a taxing jurisdiction into trust would see it removed from the tax rolls. This could only happen if that property met the criteria for taking lands into trust. Property that a tribe had acquired for investment purposes would be an unlikely choice for a petition. Much of the land owned by tribes is not currently subject to taxation, so placing it into trust would not change state revenues.
Akiachak will "dismantle" the Alaska Native Claims Settlement Act (ANCSA): False. Akiachak includes no provisions requiring ANCSA corporations to transfer lands to tribes. Any such conveyance would be voluntary and would require agreement between the two entities.
ANCSA corporations will stop paying shareholder dividends if tribes place lands into trust: False. The money that ANCs use to pay dividends comes from profits earned from business activities. It has nothing to do with tribally owned fee lands. Even if an ANCSA corporation were to convey some land to a tribe, it could retain the rights to develop the subsurface resources, thus retaining the ability to generate revenue from the land for dividends.
Trust lands will help tribes combat violence and abuse in their communities: True. Two of the four tribal plaintiffs in Akiachak wanted to take land into trust to help with enforcement of alcohol bans. (The other two wanted to protect land for future use by members.) In a July 24 Alaska Dispatch News commentary, Liz Medicine Crow and Troy Eid spelled out just how bad the public safety situation is in rural Alaska and spoke in favor of dropping the appeal. The state has been unable to provide even the most basic law enforcement in many of Alaska's Native communities. With trust lands, tribes can actually do something to change this!
The state of Alaska will suffer if tribes take land into trust: False. The case came to court because safety and other concerns exist throughout Alaska's Native communities. The taking of land into trust by tribes would be a small step towards a remedy that would benefit all Alaskans. Appealing the decision will further damage state and tribal relations and will incur huge expense for the state. The issues that brought the case to court will remain if the suit fails and will come back to court again until they are finally resolved. Ignoring the needs of tribes will not make them go away.
Gov. Walker has been making real efforts to improve the state and tribal relationship. We should encourage him to drop the appeal and join with tribes and work in partnership to support any and all efforts they are undertaking to make their communities safer places to live.
Jenny Bell-Jones teaches indigenous law at the University of Alaska Fairbanks. She holds a master's degree in rural development. This commentary is her opinion alone and not that of the university.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.