A new legal opinion by the top attorney at the U.S. Department of the Interior has extended the land jurisdiction of Alaska tribes, upending decades of precedent and offering new opportunities for the state’s 228 federally recognized tribal governments.
The opinion, issued Feb. 1 by Interior Department Solicitor Robert Anderson, says tribal authority applies on land allotments given to individual Alaska Natives, unless those parcels of land are owned by a non-tribal member or are “geographically removed from the tribal community.”
“That is a very big change,” said Joel Jackson, president of the Native Village of Kake. “We’re always looking for land back,” he said. “That’s important to us. We’re going to do that.”
The legal opinion — which reverses decades of prior interpretation — doesn’t change who owns the land, but it does change the laws that apply to the land. Tribal law, not just state, local or federal law, will now apply.
Since the passage of the Alaska Native Claims Settlement Act, Alaska’s tribal governments have had authority over minimal territory because that law assigned most Native land to regional and village corporations — which are legally distinct and not governments.
Almost 17,500 land allotments since 1906 have been awarded or are in the process of being awarded to individual Alaska Natives, according to figures published by the U.S. Department of the Interior. Each parcel can be as big as 160 acres.
That means the opinion has the potential to change the legal framework around thousands of acres in Alaska.
“All in all, it will be a positive step forward for the state of Alaska,” said Rhonda Pitka, first chief of the Native Village of Beaver, on the Yukon River in Interior Alaska. “Having Native lands in Native jurisdiction makes a lot of sense for everybody, I think.”
Attorneys for the state of Alaska disagree.
In a court filing last month, they expressed alarm, calling the new opinion a “sea change” for the state.
In response to emailed questions, the Alaska Department of Law provided a written statement: “In two strokes of its solicitor’s pen, Interior has changed how Alaska has operated for more than 50 years. The state has gone from minimal amounts of tribal territorial jurisdiction to millions of acres.”
The change has implications for things as varied as game management, local zoning and police coverage.
In the past 10 years, the Native Village of Eklutna and the Central Council of the Tlingit and Haida Indian Tribes of Alaska each sought to open federally regulated gaming halls on Native allotments in their traditional territory.
A federal judge and the National Indian Gaming Commission, respectively, rejected the plans, concluding that the allotments were not under tribal jurisdiction.
“The tribe is reviewing the solicitor’s opinion with interest and considering what it might mean for us,” said Brenda Hewitt, tribal administrator for the Native Village of Eklutna, north of Anchorage.
Legal experts expressed mixed opinions about the state’s analysis.
“My short answer is that I don’t think it will … affect folks much day to day,” said Erin Dougherty Lynch, senior staff attorney for the Native American Rights Fund, by email. “And if the state is worried about confusion, it could proactively work with tribes to address any issues, as other states have done for years,” she said.
Dougherty Lynch said that it’s too early to tell how much new tribal jurisdiction will be created by the new legal opinion, which requires the allotment to be owned by a tribal member and be geographically close to the relevant tribe.
“So given those requirements there are some allotments (who knows how many) that would not meet that criteria,” she said by email.
In Southeast Alaska, Jackson and the Kake Tribe have a long-running culture camp on one Native allotment, and the tribe has been seeking to acquire the land around the camp in order to protect it. The order could offer additional protection for the land, he said.
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