Tribal land issues are a serious challenge facing Alaska

As a never-Trump Republican, I strongly opposed Donald Trump’s reelection — for the sake of our nation. Under Joe Biden, I fear more for the social fabric of our state. I made that choice.

Specifically, Biden will appoint a Secretary of the Interior, sometimes called “Alaska’s other governor.” His or her Department of the Interior includes an alphabet soup of agencies like the Bureau of Land Management, National Parks Service, U.S. Fish and Wildlife Service, U.S. Geological Survey and Bureau of Indian Affairs. We are talking mining, oil and gas, federal refuges and parks, fish and game management, and Native American issues.

My great concern is the prospect of Bureau of Indian Affairs approval of more Indian country in Alaska. Indian country equates to Lower 48 Indian reservations. Typically, these are lands at first owned outright by the tribe. The tribal land is then transferred to federal ownership and held in trust for the tribe. Sometimes the land is called fee-to-trust land. Whichever name is used, as Indian country, it attains some very specific attributes.

So what’s the problem? Many Alaskans think the Alaska Native Claims Settlement Act (ANCSA) did away with the possibility of Indian reservations in Alaska. But things have changed, and it’s important to realize how the change can affect all Alaskans.

First, we must understand that more than 200 federally recognized tribes exist in Alaska. Each is recognized as a dependent sovereign nation. As such they have certain limited but real authority over their tribal members. Presumably, this authority can be exercised by tribal courts where they exist. This tribal authority was confirmed in 1999 by the Alaska Supreme Court in the Baker v John case. They also have sovereign immunity from suit — from breach of contract, from “slip and fall” suits, and from other business transaction suits. This tribal immunity is a basic attribute of all recognized tribes but can be waived by the tribe for specific purposes if they so choose.

Tribes received no land in the Alaska Native Claims Settlement Act. ANCSA provided lands to Native regional and village corporations, not to tribes. But tribes are acquiring land now through transfers from Native corporations, and likely through purchases and gifts.

Second, we must realize that whenever a sovereign tribe acquires land in fee ownership, the tribe can request BIA to have that land placed in federal trust, i.e. fee-to-trust land. When this is accomplished, the land becomes “Indian country,” which is exempt from all state and municipal taxation, and is also exempt from all state and municipal regulation consistent with Alaska’s status under Public Law 280. This status also provides that tribal members and businesses receive all the usual state and municipal benefits, like sewer and water, police and fire protection, road maintenance, etc. Law enforcement can be by mutual agreement, but conflicts can and do end up in court, including, as now, in the U.S. Supreme Court.

Applications to BIA for fee-to-trust tribal land have been submitted for land in downtown Juneau, Ninilchik and Fort Yukon. About a year ago, BIA approved an application in downtown Craig, making this the first post-ANCSA reservation in Alaska. Annette Island is a pre-ANCSA reservation by virtue of a very early treaty with a Canadian tribe that moved to Metlakatla on the island. In my opinion, we have a serious problem. We have potentially one defined segment of Alaska society which could, in downtown Juneau, run a tourist shop, a marijuana shop, a grocery store, a bingo parlor or other business, totally free of state or municipal taxation and regulation. Yet the tribal business would receive all the state and municipal benefits. The tribal business would be in competition with all the other similar shops in town. Is this fair? By my understanding, the City and Borough of Juneau had no objection to approval of the BIA application.

Similarly, problems related to potential tribal housing projects on lands within urban and suburban communities are troubling, with tribal member homes and businesses free of borough and municipal taxation and regulation. So many, many questions revolve around the matter of Indian country in Alaska.

Can a tribally owned grocery store or marijuana business really avoid state and municipal tax and regulation? Can non-Native entrepreneurs partner with tribes to gain tax and regulation relief from their joint businesses? Can a tribe dictate to its members within a small community that they may not rent to non-Natives — as was done in Tyonek back in the mid-1980s?

These are only a few of the questions for which we should have answers. The states of Washington and Oregon provide documents for general information on the subject. An Oregon State Bar Bulletin in October 2002 included “Legal Practice Tips, Indian Law Essentials, What every attorney should know,” by Gabe Galanda, who has written other useful documents.

In summary, each of Alaska’s 200-plus tribes have a sovereign status and have had for decades. If any one of those tribes own fee-simple land which the BIA accepts as trust land, then the complications between the state, its municipalities, the tribe and the people of Alaska will increase.

Mary Bishop has been a resident of Fairbanks and Interior Alaska villages since 1961.

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