On Friday, Jan. 13, a small parcel of land in Craig, Alaska became the latest Native American reservation: One acre of Indian Country.
It is the first Alaska land to be placed into “federal trust” by the Department of Interior under a July, 2016 court ruling that Gov. Bill Walker refused to challenge (read his explanation below).
Such a demure dipping of Alaska’s toe into the waters of Indian Country was likely a move calculated to diminish the importance of such an event. After all, it’s only one acre.
Walker this week issued no statement congratulating the tribe for its new federal co-ownership of its land, nor was there any public gesture from the tribe itself thanking Walker for backing away from the Akiachak Native Community v. U.S. Secretary of the Interior ruling, which went against the State’s clear interest in preserving its sovereignty.
By allowing the lower court ruling to stand without a fight, Walker can take credit for ushering Indian Country into Alaska. His silence is mystifying, since it’s one of his few accomplishments, other than Obamacare Medicaid expansion.
Land trusts create tribal ownership partnerships with the federal government, and cuts the state from being at the table on any decision. Tribes can tap more federal funds this way, which some conservatives say grows dependency on government. Reservation lands also further Balkanize Americans, the argument goes, because it’s not a unifying direction for states to go in.
The new acre-sized reservation already houses the Craig Tribal Association offices, meeting hall, space rented from the Tribe by the Alaska Court System, and a parking lot. The association acquired the the parcel in 1996 and built a community hall. The development is not yet eligible for a gambling casino, although that could materialize eventually. The tribe has talked openly about a future with gambling.
IN THE WAYBACK MACHINE: The matter goes back to federal legislation that helped build the Trans Alaska Pipeline, which needed to cross Native lands. Congress passed the Alaska Native Claims Settlement Act (ANCSA) in 1971, settling all land claims by Alaska Natives “rapidly, with certainty [and] without creating a reservation system or lengthy wardship or trusteeship.”
Congress returned 44 million acres of land to newly created Alaska Native corporations and paid Alaska Natives $962.5 million. It was to be a new model that would avoid the problems with reservations that have become centers of the worst sort of poverty and criminal activity in America today.
The Secretary of the Interior set forth by regulation in 1980 that the “Alaska exception,” excludes federal trust authority for acquiring Native land in Alaska. The Alaska exception has now been overturned by the Obama Administration, which is calling the exception an unfortunate “error.”
BIA IS HAPPY TO HELP: Principal Deputy Assistant Secretary for Indian Affairs Lawrence S. Roberts, announced the Craig reservation decision through a press release:
“The journey to this decision has been a long one. Today, the federally recognized tribes in Alaska have the same opportunity as those in the Lower 48 states to maintain a permanent homeland for themselves,” Roberts said.
“The decision to place the Craig Tribal Association’s land into trust reflects the policies of tribal self-determination and self-governance through the restoration of tribal homelands that will benefit its current and future generations of tribal members. I congratulate the Craig Tribal Association leadership on their achievement. I also commend the State of Alaska and the City of Craig for their comments on the land-into-trust application. Their approach, much like other state and local governments, is another important example of tribes, states and local governments working together in a government-to-government relationship to address concerns so that they may better serves their collective communities.”
Bureau of Indian Affairs Director Bruce Loudermilk said, “I want to thank the Office of Trust Services staff in the BIA’s Alaska Regional Office and the staff across the Department for their hard work on this complex matter. I also want to add my congratulations to the Craig Tribal Association leaders on the restoration of a small part of their homeland.”
Lands held in federal reservation status cannot be sold or transferred to non-Indians or non-Natives. They are exempt from state and local taxes, but the tribe does not pay those now, so there is no material change.
According to the Department of Interior, the State of Alaska is still responsible for law enforcement on the property in the heart of Craig, which is the largest town on Prince of Wales Island, about 56 miles by air from Ketchikan. About 1,200 people live in Craig.
The Obama Administration has had an aggressive schedule to create more reservations. Secretary of Interior Sally Jewell set the goal of a half-million acres of land to be designated in the land-into-trust status before Obama leaves office this week.
The Administration has exceeded that goal by processing more than 2,265 trust applications and setting aside nearly 571,000 acres as reservation property since 2009.
“The finalization of the tribal land-into-trust application is very good news for Alaska tribes,” said Brian Cladoosby, NCAI President, on the organization’s web site. “Land into trust will enable Alaska tribal governments to protect lands for future generations and to better exercise governmental authority for the protection of their citizens.”
“When tribal governments set their own policies and enforce the laws in their own communities, then they can take care of law enforcement, improve their economy, and help to build productive communities,” said Cladoosby, evidently unaware that the one acre that houses a building is not a law-enforcement issue in Alaska and that the City of Craig and State Public Safety Department will still provide law enforcement.
Other reservations in Alaska predate the 1980 ANILCA decision. Metlakatla on Annette Island), Klawock, and Kake tribes have grandfathered-in reservation status.
WALKER SUPPORTS NATIVE RESERVATIONS: On Aug 29, 2016, Gov. Bill Walker and Lt. Gov. Byron Mallott published this explanation of their actions in the Juneau Empire:
Since we came into office, the topic of tribes placing lands into trust in Alaska has engendered some of the most passionate comments and concerns we have heard on the many sides of this issue.
Many believe that this action will further empower tribes to become more self-sufficient while improving the quality of life throughout rural Alaska — a goal we all share. Those with strong state’s rights convictions are concerned that it may weaken state authority and make an already overly complicated fish and game management system more difficult and impact the constitutional requirement of sustained yield. The reality is that, as of Aug. 22, the federal government can take lands into trust in our state under a 2014 adopted federal regulation. We recognize the validity of many of the concerns we have heard. But instead of litigating a resolution in court that no one may be satisfied with, we think it is time to forge a new path forward of dialogue and collaboration to see if we can achieve a resolution that’s in the best interests of all Alaskans.
We have an opportunity as we embark into this new reality to help shape the outcome so that it works best for our state. Alaska is unique, and just like so many other areas, the way trust lands may occur in our state is unique. There is no reason to assume that Indian country here will be the same as Indian reservations in other places. We believe that we can work together to address people’s concerns and shape solutions that improve public safety, empower local communities and protect our resources.
The current reality is that rural Alaska experiences the highest unemployment in the nation, very high rates of domestic violence, and drug and alcohol abuse and some of the lowest graduation rates in the country. The current reality in rural Alaska is an utter failure rivaling some of the worst conditions found on reservations throughout the country. We must consider other options that seek partnerships to make Alaska better instead of the decades-old practice of perpetual lawsuits that have not made Alaska better.
After the decision came out ending the lawsuit, some have said that we are not recognizing the many concerns that our administration raised in the litigation regarding Indian country and reservations: quite the opposite. We acknowledge the concerns that have previously been mentioned — such as ensuring the state’s role in resource development and game management — and there will likely be additional concerns raised. But the question is how best to have those concerns addressed: Will continued litigation get us to a solution? Or should we try to see if we can resolve concerns through proactive outreach and negotiation?
We believe Indian country in Alaska should look different than the typical Indian reservations we all know in the Lower 48. Being an active participant in the way lands into trust is implemented in our state will hopefully bring us to a better solution. We are not sitting back and letting something happen — we are going full steam ahead on engaging with tribes, the federal government and others to ensure all concerns are addressed.
The alternative that some support is continuing to pursue dead-end litigation that simply divides our state further. Litigation is win or lose, all or nothing. Litigation does not allow us to be at the table. The state lost its appeal in Akiachak Native Community v. U.S. Secretary of the Interior on procedural grounds. Therefore, it is as if that lawsuit never happened, including the original ruling against the state. That leaves us with no binding legal precedent.
As Attorney General Jahna Lindemuth stated, litigation remains an option but a court challenge is a blunt instrument that is not well designed to address such a complex issue, let alone one critical to the future of this state. If necessary, further litigation remains an option, but let’s try sitting down and talking to each other here in Alaska rather than doing so in a courtroom in Washington, D.C.
The end of this litigation provides some breathing room for all Alaskans to sit down and see if everyone’s concerns can be addressed outside the courtroom. We view this as a blank slate to craft a new set of rules. We have tasked Attorney General Lindemuth with reaching out to the Bureau of Indian Affairs, tribes, other Native interests and organizations, commercial interests doing business in Alaska, local governments, and other interested stakeholders to find out where there is common ground and where there is disagreement. Hopefully, we can reach consensus on the major issues and gain a better understanding of what lands into trust will mean for Alaska. We will work collaboratively on new regulations that will take into consideration the uniqueness of Alaska and Alaskans.
We envision a path forward where Alaska as a whole engages on the issue and decides what is best for the future of all Alaskans. We did not “give up” nor are we sitting on our hands, responding to one trust application at a time. Rather, this administration is engaging in active diplomacy on this critically important issue. In the end, the onus is on the federal government and all of us collectively to make sure the state’s concerns are addressed and that we have engaged in a meaningful process before any application is granted. We expect the federal government to uphold its end of the bargain and believe that reaching out early to start the discussion will help lead to a smooth transition.
Having the federal government take lands into trust will be one tool in the belt to help address rural justice issues and improve government relations with tribes. There are other innovative solutions that we should continue to explore, including diverting certain matters to tribal courts, continuing to streamline the child-in-need-of-aid process, and figuring out how to expand our law enforcement presence in spite of dwindling state resources. We are not a one size fits all state, and we need solutions that address the unique circumstances of each tribe and each local community. It’s time to think outside the box, and we encourage you to send your thoughts and comments to our office or to Attorney General Lindemuth as we forge this new path.