A recent decision from the solicitor general’s office of the U.S. Department of the Interior to withdraw an Obama-era action regarding Alaska Natives placing lands into federal trust is a good step toward reaffirming Alaska sovereignty.
Allowing lands from federally recognized tribes — 229 are in Alaska — to be placed into federal trust raises too many concerns, chief among them that it basically establishing sovereign entities within, but not controlled by, the sovereign state of Alaska. When the federal government accepts land into trust, it holds the title to the property; the land becomes exempt from taxation, and the tribes make the decisions on how to govern it and develop it.
It was in the final week of the Obama administration that the Interior Department’s then-solicitor general, Hilary C. Tompkins, announced that a 1936 action by Congress to extend a provision of the Indian Reorganization Act to Alaska “provides specific authority for the secretary (of Interior) to take Alaska lands into trust.” Ms. Tompkins also determined that the authority was not limited by a U.S. Supreme Court decision on the subject and that neither the Alaska Native Claims Settlement Act of 1971 nor the Federal Land Policy and Management Act “expressly or impliedly repeal that authority.”
Now, however, President Donald Trump’s principal deputy solicitor general in the department, Daniel H. Jorjani, has withdrawn that opinion, stating he was doing so as part of the administration’s wider regulatory review process. But Mr. Jorjani also wrote in his June 29 opinion that the previous administration’s position “omits discussion of important statutory developments, resulting in an incomplete analysis of the secretary’s authority to acquire land in trust in Alaska.”
Mr. Jorjani, after citing numerous flaws in the previous administration’s position, concluded his five-page memorandum by stating that a failure to discuss possible implications of legislation approved after ANCSA’s adoption and a failure to address the lower court’s finding regarding the applicability of the Indian Reorganization Act of 1934 to Alaska Native lands rendered the previous analysis about the lands into trust issue for Alaska “incomplete and unbalanced.”
It’s highly encouraging to see that previous and faulty opinion withdrawn.
It is also a welcome response to Gov. Bill Walker’s disappointing decision not to appeal a federal appeals court decision upholding a 2013 lower court’s ruling that the Alaska Native Claims Settlement Act does not prohibit land from being accepted into federal trust. The case, filed in 2006, was brought by the tribes of Akiachak, Chalkyitsik and Tuluksak and the Chilkoot Indian Association.
The state of Alaska had entered the case, at Gov. Walker’s direction, when the Department of Interior under the Obama administration chose to change its position on lands into trust, in compliance with the court ruling, rather than appeal. The state’s filing was strong, arguing, for example, these points:
“The state has no authority to tax trust land. Furthermore, the Secretary (of the Interior) has stated that trust land in Alaska would be considered Indian country, which means the state could also lose authority to impose on it land use restrictions, natural resource management requirements, and certain environmental regulations. Exercise of police powers and regulation of state resources are fundamental elements of state sovereignty.”
And this: “Trust land and Indian country could confuse Alaskans and nonresidents who could be subject to a patchwork quilt of legal and regulatory authorities, depending on where they are and whether they are a tribal member or nonmember.”
And yet the governor gave up, choosing not to fight the appellate court’s ruling against the state.
It appears it took the election of a receptive national administration to do the work that Alaska should have carried on.
So what happens now that the Obama-era position on lands into trust has been withdrawn?
The Trump administration will “prepare for consultation with the Indian and Alaska Native communities on an interim policy for off-reservation land-into-trust acquisitions within and outside of Alaska,” Mr. Jorjani’s memo concludes.
This move by the principal deputy solicitor to review a ghastly assault on Alaska’s authority as a state isn’t the end of the matter, however. Alaskans must now watch closely as a new policy is formulated.
The stakes remain high for Alaska and its sovereignty, which needs to be guarded vigorously regardless of who is in the White House.
—Fairbanks Daily News-Miner, July 8, 2018