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The State, Native Corporations Stake Their Positions As The Push For Indian Country Begins

Courtesy of www.ancsaregional.com

The idea of creating Indian Country in Alaska by putting private lands into federal trust status has many tribal advocates excited because they see it as an avenue leading to everything from administering justice in their villages to imposing taxes on tribal lands and escaping state and municipal taxes. 

Today in Fairbanks, tribal leaders gather to get a legal assessment of the process and how best to go about using it.  This Leader's Summit follows a meeting last week in Anchorage among lawyers, representatives of Native corporations, the state and Federal government hosted by the University of Alaska Justice center, Alaska Law Review and the Bar Association to look at the Native Claim Settlement act in this new legal environment. 

Last week, the Craig Tribal Association in Southeast Alaska filed a request to put land into trust  Miranda Strong is the special assistant to the State Attorney General, leading the state's trust lands process. She noted that the application arrived on Columbus Day, which Governor Walker had declared Indigenous Day.

"So that was a happy coincidence that that was the day we received notice that the first application to take land into trust and the Craig Tribal Association has applied to take a one acre parcel into trust and on that parcel is the tribe's administration building. So you have some tribal offices, a tribal hall, a local Head Start program, some commercial space as well as a parking spot on that parcel," Strong said. 

Though Craig is the first to file an application, it is one of several Alaska tribes already indicating they want lands set aside in trust by the federal government. Governor Walker has asked the state law department to talk to various interest groups.

"Including of course tribes, as well as Alaska Federation of Natives convention next week, as well as the RDC and the Alaska Municipal League and the Alaska Mining Association.  And we're going to take that input back to the Governor and Lieutenant Governor so that they can better engage with all Alaskans to best shape outcomes of land into trust in Alaska," Strong said.

At the center of the trust lands issue is the Alaska Native Claims Settlement Act (ANCSA) and the continued existence of Alaska tribes in its wake.  Though there were tribes prior to its passage, the act was silent on the issue of tribes. ANCSA created Native corporations giving each of them title to lands to use as corporate assets, while extinguishing territorial rights.  The Native tribe of Venetie did not agree with the corporate structure set up in ANCSA.  Their corporation chose only what they considered their traditional tribal lands and then transferred them to the tribe.   When the tribe tried to impose taxes on non-tribal businesses operating on tribal lands they ended up facing a state court challenge that went on for years.

While Venetie was fighting the court case, other tribes were pushing for tribal reaffirmation that seemed to go nowhere until Ada Deer, Assistant Secretary of Indian Affairs under President Clinton, included ANCSA villages in a federal list of tribes, explicitly stating they had the same status and rights as tribes in the lower 48.  Congress later confirmed that decision.

In the 90's the tide seemed to have shifted and the village of Venetie won its case in lower court.  But when it arrived at the Supreme Court it was a different story.  Venetie lost, and lost big.  The Supreme Court said that ANCSA land, even if  transferred to Tribes, was not Indian country. For all practical purposes, that decision left Alaska's tribes without jurisdiction over land.

Now the Obama administration's Trust Lands process opens the door for jurisdiction and the creation of Indian country.  But it is a very small door. Most of the private land in Alaska is owned by Native corporations.  Only 1 percent is not.  Some corporations have given some land to tribes, but doing so reduced their assets.

The federal trust lands process also has problems in the eyes of some tribal advocates. Attorney Elizabeth Hensley, a Nana Shareholder,  supports the process for those tribes that find it useful, but questions the legal structure that makes it necessary.  She says requiring tribes to ask the federal government to put their land into trust treats tribes as dependents. 

"You don't want them to have to give it back to the federal government to have it taken in trust for the tribe by the federal government, and then be able to exercise their jurisdiction over it. There's something backward about that. The system itself needs to be changed," Hensley said.

Though the Alaska Native Claims Settlement Act did not explicitly eliminate tribes in Alaska, it did eliminate indigenous rights to hunt and fish on public lands.  That led to the creation of Title 8 of the Alaska National Interest Lands Conservation Act or ANILCA.  Originally proposed as a way to restore those indigenous rights,  Title 8 was expanded to include subsistence hunting and fishing rights for all rural residents.

Sky Starkey is an attorney with Landye Bennett and Blumstein.  He says the rural preference is a problem because it does not explicitly recognize Natives' authority to manage the lands they depend on for food.  Part of the solution, he says, is to recognize Title 8 as Indian Law.

"The first five sentences talk about Alaska Natives' need for subsistence and talk about fulfilling the promises of ANCSA and incorporate the Indian Commerce Clause in the authority Congress used to pass the act. So I can't understand the merit in an argument that it's not Indian legislation. To me it clearly is," Starkey said.

Starkey says that recognition would encourage the state to work with tribes to co-manage fish and game. The state can enter into co-management agreements already and is doing so on the Kuskokwim River. That tribal-state co-management system is relatively new, and the kinks are still being worked out.  Many hope it will become a model for other parts of Alaska. 

Because there are still lots of contentious areas, the body of law governing Native rights in Alaska will continue to play out in the courts.