Recreating Territoriality in Alaska: Building Indian Country through

PLACING LAND INTO TRUST

As stated in Chapter 5, lands transferred to Alaska Native Corporations under ANCSA lost their status as Indian Country. However, other lands within the state remain in Indian Country status. The Venetie decision included a footnote where the Court made this allowance:

Other Indian country exists in Alaska post-ANCSA only if the land in question meets the requirements of a ‘dependent Indian communit[y]’ under our interpretation of [18 U.S.C.]

1151(b), or if it constitutes “allotments” under [18 U.S.C.] 1151(c).

This footnote leaves open the possibility that some lands within Alaska could be the basis for tribes to assert territorial authority, even if “the scope of territorial jurisdiction is . . . limited to allotments and restricted town site lots” (Case 2005 at 154). Although the amount of Indian

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Country in Alaska is unknown, some estimate that millions of acres could currently exist in this status (Landreth and Dougherty 2012; Attorney General's Advisory Committee 2014, 138).

Despite this legal fact, at present, no tribes are relying on allotment or trust lands to assert geographic jurisdiction for purposes of self-governance. One speculative reason for this is because the amount of land involved is limited. Allotments and townsites were granted as relatively small tracts of land, in the 10s and sometimes 100s of acres. While cumulatively, the number of allotments and townsites may reach into the millions of acres, each individual parcel is too small. Likewise, generally, individual Alaska Natives, not tribal governments, hold title to these allotments and townsites.

However, a recent federal court decision opens the possibility for creating more Indian Country in Alaska, and may open the door to such lands being governed by tribes (Akiachak Native Community v. Salazar, 935 F. Supp. 2d 195, 197 (D.D.C. 2013)). Until 2014, Alaskan tribes were subject to an exception in federal regulations that allow lands to be taken back into trust status by the Department of Interior, which then opens the door to these lands being reclassified as “Indian Country” capable of sustaining tribal territorial authority.

The history behind this regulation dates back to the 1800s when the United States government pursued policies designed to assimilate Native Americans into non-Native culture.

One of these policies aimed to dismantle Indian reservations piece by piece. The General Allotment Act (24 Stat. 388 (1887)), otherwise known as the Dawes Severalty Act, allowed parcels of land within the borders of Indian reservations, transforming commonly held land into to private parcels to be owned by individual Indians for agricultural and grazing purposes.

Although protected from sale and local taxation for a short period of time, much of the land allotted under this Act was quickly lost to these individuals who were not able to pay taxes on

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their lands. Reservations were carved up and the tribal land base was fractionated, making tribal self-governance difficult if not impossible (Pommersheim 2013, 522, 525). The amount of reservation land held in trust for indigenous tribes fell from 138 million acres in 1887 to 52 million acres in 1934 (Pommersheim 2013, 522).

In 1934, U.S. Indian policy turned away from efforts to assimilate Indians into non-Native society, and instead began an era of self-determination that recognized and respected the unique sovereign status of tribes. Policies of assimilation were replaced with policies of determination and federal law began the slow shift of building tribal capacity to support self-governance. One example includes the Indian Reorganization Act of 1934 (IRA), which included a provision (section 5) authorizing the Secretary of the Interior to take privately held lands taken back into trust status upon petition by a tribal member or tribal government. In 1936, this provision was extended to the Territory of Alaska (79 Fed. Reg. 24649 (May 1, 2014)).

Section 5 has never been legislatively amended to exclude Alaska, even by the Alaska Native Claims Settlement Act (79 Fed. Reg. 24650).

After ANCSA’s passage, the Native Village of Venetie’s tribal government requested that lands conveyed to its village corporation be transferred back into trust status pursuant to IRA Section 5. In response, an Associate Solicitor for Indian Affairs denied the request, finding that ANCSA intended to “permanently remove all Native lands in Alaska from trust status” (as cited in 79 Fed. Reg. 24650). Two years later, this position was codified into federal regulation, and tribes in Alaska lost the ability to petition the federal government to take lands into trust status.

45 FR 62034 (Sept. 18, 1980).

That position became the subject of litigation in 2007 when four Alaskan tribes sued to challenge what became known as the “Alaska Exception” Akiachak Native Community v.

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Salazar, 935 F. Supp. 2d 195, 197 (D.D.C. 2013). Six years later, the Federal District Court ruled in favor of the tribes, finding that Congress did not explicitly prevent Alaskan tribes from petitioning to have lands put into trust and thus, the Alaska Exception violated the rights of Alaska tribes to enjoy the privileges and immunities “available to all other federally recognized tribes by virtue of their status as Indian tribes.” (935 F.Supp 2d at 210-211).

Currently, the State of Alaska is appealing the Akiachak decision arguing that ANCSA eliminated Indian Country and that “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” (Demer 2015). Despite the on-going appeal, the U.S. Department of Interior issued final regulations to eliminate the Alaska exception and open the door to petitions to place lands back into trust 79 FR 24648 (May 1, 2014). The U.S. Department of Interior justifies its efforts as consistent with the policy of “honoring of principles of tribal self-reliance and self-governance” (79 FR 24651).

Likewise, the federal register notice specifically identifies the need to promote self-determination by expanding the land base available to tribal governance. The U.S. Department of Interior’s comments in the proposed regulation evidence their belief that increasing trust lands in Alaska would provide this additional source of authority for tribes. Id.

In a legal review of the proposed change to land into trust regulations, the Alaska Federation of Natives determined that this regulation could result in an increase in Indian Country, and therefore an expansion of tribal jurisdiction.

If the decision in the Akiachak case is affirmed on appeal, Tribes in Alaska will be able to request that the Secretary take land into trust, and if granted, tribes’ ability to regulate alcohol, respond to domestic violence, and generally protect the health, safety, and welfare of tribal members will be enhanced.

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Trust status offers a number of benefits that are not available through other avenues.

Tribes and tribal member activities on trust lands are generally beyond the reach of all state and local taxes. The lands, whether developed, leased (with the consent of the Secretary of Interior) or not developed or leased, would be entitled to all the protections of the ANCSA land bank, plus more, including protection from exercise of eminent domain, special review under environmental laws, and additional agency support. A trust land base is also often a significant factor in determining the amount of federal program funds are allocated to a tribe (AFN White Paper on Akiachak).

As a matter of policy, two federal reports are calling for increased Indian Country in Alaska to expand governance authority for tribal communities and their efforts to combat community violence. The 2013 Indian Law and Order Commission Report identified particular recommendations to combat violence in Indian Country. Three out of five of the recommendations involved expanding the territorial land base available to tribes for self-governance:

 Amend ANCSA to provide for lands transferred under that Act to be included as Indian Country under federal law.

 Clarify and affirm that Native allotments and townsites are Indian country.

 Amend ANCSA to allow regional corporations to transfer lands to tribal governments and provide that those lands can be put back into trust status, reinvigorating their status as trust lands and therefore capable of sustaining tribal governance (Indian Law and Order Commission 2013).

One year after the ILOC issued its report, the U.S. Attorney General called for dramatic changes in the way communities deal with violence against American Indian and Alaska Native children. Specifically, the Attorney General called for amending the federal definition of Indian Country to “clarify (or affirm) that Native allotments and townsites are Indian Country (Attorney General's Advisory Committee 2014, 138). This report states,

There is an archipelago of land—individual Indian allotments and commonly held lands within Alaska Native town sites—that ANCSA did not affect. These are geographies over which the federal government retains a trust responsibility, and they should be fully recognized as Indian country. These parcels are significant—conservative estimates place their total area somewhere between four and six million acres. If a land base is what is

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needed to exercise criminal jurisdiction (and other kinds of land-based jurisdiction), the change would clarify that at least some Alaska Tribes do have a land base. Furthermore, these lands are a foothold from which Indian country in Alaska can be expanded (Attorney General's Advisory Committee 2014, 138).

The federal government has made clear its position that territorial authority is vital to the ability of tribes to govern the wellbeing of their people. The combined reports by the U.S. Indian Law and Order Commission and the U.S. Attorney General, and the efforts by the U.S.

Department of Interior to increase Indian Country, all recognize that territoriality is necessary for self-determination. However, even with this renewed enthusiasm for expanding geographic tribal jurisdiction in Alaska, tribal territorial sovereignty will never mirror that of Indian Reservations in the continental United States. Lands in Alaska are “carved up into a complex mosaic of federal, state and native ownerships [that] . . . created a land ownership pattern that has been called ‘irrational’ and a ‘patchwork quilt’” (Gallagher 1988, 92). The complexity of natural resource management and the competing and often overlapping jurisdictions means that effective governance in a regional setting requires cooperation and agreements between all three layers of sovereigns – tribes, state and federal governments. It is with this awareness that I describe the next effort to increase tribal authority over fish and game management.

7.2. RELYING ON NON-TERRITORIALITY: LEGISLATION TO CREATE SUBSISTENCE CO