What others say: State’s failure to pursue land trust appeal at odds with prior statements

  • Monday, August 22, 2016 8:07pm
  • Opinion

Gov. Bill Walker’s decision to not appeal a federal court’s ruling in an Alaska Native lands trust case is as disastrous as the ruling itself.

It was a year ago that the state, in taking over a lawsuit against the federal government brought by Alaska tribes in Akiachak, Chalkyitsik and Tuluksak, made a compelling case that the Department of the Interior erred terribly when it changed its rules to allow Alaska Native land to be accepted into trust by the federal government.

The department’s action came after a federal District Court judge in the District of Columbia in 2013 ruled that the Alaska Native Claims Settlement Act of 1971 didn’t bar land from being taken into trust. The Interior Department had been relying on its own interpretation of ANCSA, as seen through the department’s implementing regulations, as requiring that Alaska be exempted from provisions in the Indian Reorganization Act of 1934 that allowed for land to be held in trust by the government. Rather than appeal the court ruling, however, the department changed its regulations to comply with the lower court.

Putting lands into trust appears as though it would benefit tribes greatly, but it also brings great risk and responsibility. There is no guarantee that the needs of residents on such lands would be improved.

Allowing lands to be put into federal trust will come at a fundamental cost to state sovereignty. For example, tribes will gain greater authority to implement their own criminal and civil laws on the land, affecting any Alaskan who would venture onto the trust land and be accused of violating tribal law. Federal funds for a variety of functions, including law enforcement, will become available when the government essentially owns the land in the trust.

That’s why the state entered the case a year ago, on Aug. 24, 2015. It was that important.

The administration of Gov. Walker appealed the lower court ruling once the Interior Department opted not to. The state argued that the so-called “Alaska exception” was actually mandated by ANCSA itself, and not just through department regulation, and that the exemption therefore superseded the Indian Reorganization Act.

The state made crisp, bold points in its appeal. Among them:

“Alaska has a major stake in the issue of whether ANCSA remains viable and how millions of acres of land within its borders will be governed.”

“Injury-in-fact has occurred here because the district court judgment prevents the state from getting what it bargained for in ANCSA.”

“Trust land in Alaska would diminish the state’s authority by creating islands of land within its borders potentially controlled by 229 competing sovereigns, thus harming Alaska’s sovereign and proprietary interests.”

“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.”

“New trust land in Alaska thus harms the state by abrogating its authority over land within its borders and creating widespread uncertainty over governance. 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.”

The state’s tough position continued for many pages, and the point was clear: This decision was damaging to Alaska and must be overturned.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia sided with the tribes, however, though in a split 2-1 decision.

The dissenting judge, Janice Rogers Brown, seemed to share the state’s view when she noted the lower court judge acknowledged that Alaska could be severely harmed. Judge Brown, in her dissenting opinion, wrote “Specifically, the district court enjoined the department from taking any Alaska lands into trust while this appeal was pending because such an action would cause ‘irreparable harm to state sovereignty and state management of land’ in Alaska.”

Would the state ask for a hearing before the full appeals court so as to avoid this damage? Surely Gov. Walker would do so given the strong claims made a year ago when the state entered the case.

No. Instead, the governor simply gave up and said the state would be attentive and comment as necessary as individual land trust applications were presented to the federal government.

The governor stated in news release Monday that “it doesn’t make sense to use the state’s limited resources pursuing this litigation that has already dragged on for ten years.”

Yes, governor, it does make sense — especially if you believe the points your administration raised just one year ago.

—Fairbanks Daily News-Miner,
Aug. 21

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