A federal judge has ruled that the Department of the Interior may take land into trust on behalf of Alaska Native tribes, a decision that could allow tribes to create “Indian country,” which had been mostly eliminated here by the 53-year-old Alaska Native Claims Settlement Act.
In a 39-page summary judgment order on June 26, Anchorage Judge Sharon Gleason ruled mostly but not entirely against the state, which sued the Interior Department in 2023 to challenge an administrative decision that the department has the power to take land into trust on behalf of the state’s 228 federally recognized tribes.
At issue in the case was the Biden Interior Department’s decision to accept a trust application from the Central Council of the Tlingit and Haida Indian Tribes of Alaska, which sought to protect a 787-square-foot parcel of land in downtown Juneau.
Though Gleason said the Interior Department has the power to place land into trust, the process used for the Tlingit and Haida request was flawed and should be redone.
Putting land into trust would put it under tribal law and shield it from sale or taxation by city and state officials, effectively locking its authority in place. Tlingit and Haida has worked for decades to place portions of Juneau’s historic “Indian Village” into trust.
The U.S. District Court for Washington, D.C., previously ruled in favor of Alaska tribes’ right to put land into trust, but that ruling was later vacated by an Appeals Court, and Interior Department rules have fluctuated based on the party controlling the White House.
The Democratic Obama and Biden administrations have supported Alaska tribes’ efforts to put land under tribal control, while the Republican Bush and Trump administrations opposed them.
“I think the main takeaway for the tribe is that for the second time now, a federal judge has held that the (Interior) Secretary retains authority to take land into trust in Alaska. The state has now fought that multiple times and lost,” said Whitney Leonard, an attorney that represented Tlingit and Haida in court.
Most Alaska Native land in Alaska is owned by Native corporations, which fall under state and federal law. Alaska Native tribes, which are sovereign governments and can exert authority over Indian country, have relatively little land under their control.
“From the tribe’s perspective,” Leonard said, “being able to take control of its land and control how those lands are going to be designated and used in perpetuity is really important to the tribe.”
Attorneys representing the state had argued that while the 1971 Alaska Native Claims Settlement Act did not explicitly forbid the Department of the Interior from putting land into trust on behalf of tribes, Congress’ actions implied that it intended to do so.
In legal arguments, the state expressed its worry that allowing land into trust could divide Alaska into a variety of disparate jurisdictions.
“We filed this litigation because of the patchwork it would create with enclaves of reservations scattered through the state,” said Alaska Attorney General Treg Taylor in an emailed statement June 26.
Attorneys representing the federal government and Tlingit and Haida argued that the actual language of federal law — which does not forbid taking land into trust — should carry the day.
Gleason agreed with the state’s argument that the Department of the Interior must declare that a tribe meets one of three definitions under federal law before placing land into trust — thus requiring a redo of the decision on the Juneau lands case.
She also “finds problematic” the Interior Department’s statement that it was putting Tlingit and Haida land into trust as part of the “restoration of Indian lands.”
The Alaska Native Claims Settlement Act specifically ended aboriginal title in Alaska, Gleason said. While the Department of Interior may put tribal land into trust, she said, it cannot justify that decision by saying that it is restoring land to a tribe.
That determination is somewhat academic. It doesn’t prevent the department from putting historic tribal land into trust; the federal government simply can’t use that historic use as justification for doing so.
It isn’t yet clear whether the decision will be appealed. All sides said they are still reviewing Gleason’s order.
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