The time has come for Gov. Bill Walker to tear down the wall of litigation that is impeding collaboration between the state of Alaska and Alaska Native tribes, stalling important progress on public safety, domestic violence and economic development across village Alaska. Gov. Walker, tear down this wall now.
The governor is battling the right of any Alaska tribe to request that the federal government hold the tribe's land in trust for future generations. Eighty years ago, Congress secured that right to Alaska tribes, and Congress has seen fit to leave that right intact through the 1971 Land Claims Act and dozens of intervening amendments. Although a misguided 1980 federal regulation barred the Interior secretary from acting on requests from Alaska tribes, for the last two decades the agency has questioned the legality of its own regulation. In 2013 a federal judge agreed with Alaska tribes that the regulation was unlawful, and the secretary promptly repealed it.
Yet the governor continues to litigate against Alaska tribes in a hopeless attempt to resuscitate this defunct regulation. The state's obstinacy makes no sense. What the governor seeks is a broad ruling that the 1971 Settlement Act silently extinguished the secretary's power to take trust title to any Alaska lands — a position that no court has ever held or even suggested. The governor's inexplicable resistance to the law harkens back to the old conspiracy buffs who insisted Alaska tribes were actually the creation of some cabal of lawyers (never mind that Congress itself time and again confirmed the legal status of Alaska tribes, as has every federal and state judge ever to consider the issue over the past 20 years).
Why would a tribe want its fee simple land to become federal trust land? Simple. As a legal matter, there is no better way to permanently protect a tribe's land from any future loss than for the federal government to hold that land in trust. When tribal land is placed in trust, it cannot be taken away by eminent domain, by the courts, by the banks, or by sharp dealers. In the Lower 48, it is the transfer of land out of trust status more than a century ago that led directly to the loss of millions of acres and over 90 percent of all tribal lands.
Placing land into federal trust also provides added protection and enforcement against trespassers and against timber and gravel theft. And it opens the door to additional opportunities for federally backed economic development. At the same time, trust status for Alaska tribal lands can easily coexist with the regular fee status of neighboring lands held by Native corporations under the 1971 Claims Act, and with other neighboring tribal and individual Native lands owned under the Alaska Native Allotment Act and the Alaska Native Townsite Act. Land status in Alaska has never been a one-size-fits-all proposition.
But most of all, federal trust status will enhance the ability of local tribal governments to tackle domestic violence and child abuse, control illegal alcohol importation and sales, and provide for general public safety and welfare. Two recent federal commissions have underscored the critical link between trust land status and enhanced tribal authority to act in all of these areas — alone a compelling reason for the governor to change course and embrace true partnership with local tribal governments. And while tribes may choose not to place any of their lands into trust, that should be a tribal choice. Fortunately, agency reforms, recently enacted laws and new proposals by Congressman Don Young all combine to improve the ability of tribes to control and develop their lands even when the federal government holds the title.
The Alaska Native community supported Gov. Walker's candidacy because they heard repeated commitments to improve tribal-state relations. The new administration has taken first steps to honor that commitment with regard to child welfare proceedings and tribal courts. But the litigation on the trust lands issue must stop or it will defeat all that Gov. Walker and Lt. Gov. Mallott hope to achieve. The time has come to work with the tribes, not against them, for a better future for all Alaskans.
Lloyd Miller is a partner in the Native American rights law firm of Sonosky, Chambers, Sachse, Miller & Munson. The views expressed here are his own.
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