MOSCOW, April 5 – RAPSI, Ingrid Burke. A federal court in Washington DC ruled this week that the Secretary for the Interior (Secretary) is entitled to take land into trust for Alaska Natives* in a landmark ruling that places Alaska’s native population on equal footing with other Native American populations.
Land issues have proved a major issue in US legal history. The present-day United States emerged amidst brutal warfare that raged between early European settlers and the native tribes that populated America for ages prior to their arrival. As settlers gained control of certain lands, many tribes were forced to relocate.
As time passed and the US continued to develop, various legal initiatives were enacted with the specific aim of rectifying past wrongs and protecting the rights of the country’s native populations. According to the US Bureau of Indian Affairs, the US government holds approximately 56.2 million acres of land in trust for American Indian tribes. Within the US as a whole, there are approximately 326 Indian land areas, ranging in size from the Navajo Nation’s 16 million-acre reservation to the Pit River Tribe’s 1.32-acre land parcel.
Alaska Natives’ land rights: legislative history
Native Alaskan land rights have remained somewhat nebulous since Russia conveyed the territory to the United States in 1867. The cession treaty contained the following provision, which would ultimately serve as a gateway to over a century of legislative uncertainty: “[t]he uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.”
Nearly two decades later, the Organic Act of 1884 served to establish Alaska’s civil government. The Organic Act made clear that Indians would retain possession of their native lands, but stipulated that the acquisition of title to these lands would be governed by terms established by future Congressional legislation.
In the years that followed, the US Congress enacted various laws aimed at providing Alaska Natives with land, but failed to resolve their actual rights with regard to land ownership. Various reservations were created and two relevant laws were enacted: one aimed at ensuring the rights of Alaska Natives to certain quantities of land, and one aimed at protecting the patentability of lots on Native lands. Still, both of these acts placed restrictions on the rights of Alaska Natives to acquire title to their land pending “certain federally prescribed conditions.”
Congress enacted the Indian Reorganization Act in 1934 (IRA), which authorized the Secretary of the Interior to acquire land by various means “for the purpose of providing land for Indians.” Although Alaska was not yet a state at the time, the law became applicable to its territory two years later in 1936. In accordance with the authority vested in him by the law, the Secretary established seven reservations in Alaska and took three properties into trust for Alaska Natives.
Everything abruptly changed in 1971 when Congress enacted the Alaska Native Claims Settlement Act (ANCSA), which extinguished “[a]ll aboriginal titles [and claims thereof] in Alaska based on use and occupancy.” ANCSA repealed the earlier Congressional law that had ensured the right of Alaska Natives to certain quantities of land.
As a consolation prize, Congress granted $962.5 million in state and federal funds and upwards of 44 million acres of Alaska land to private corporations, and then provided shares in these corporations to Alaska’s native populations.
Then in 1976, Congress and then-President Gerald Ford enacted the Federal Land Policy and Management Act (FLPMA), which repealed various other rights afforded to Alaska Natives through earlier laws. Among the provisions repealed was the Secretary’s right to establish reservations in Alaska. FLPMA did not, however, repeal the Secretary’s power to take land into trust for Alaska natives.
For years thereafter, the issue of whether the combined effect of ANCSA and FLPMA served to strip the Secretary’s power to hold Alaska land in trust remained a topic of heated dispute.
The Associate Solicitor for Indian Affairs had issued an opinion stating that: “The intent of Congress [in ANCSA] to permanently remove all Native lands in Alaska from trust status is unmistakable… In analyzing the declaration of policy, the Senate Report stated: ‘A major purpose of this Committee and the Congress is to avoid perpetuating in Alaska the reservation and the trustee system.’ This theme was oft repeated in the floor debates.”
His opinion proved influential. The most recent relevant regulations include the language at the core of the dispute in this case: “These regulations do not cover the acquisition of land in trust status in the State of Alaska.”
In 1994, three tribes championed the cause of expanding the scope of the land-into-trust regulations to include all federally recognized Alaska Native tribes.
The Secretary in turn explained that the Associate Solicitor’s opinion had served as the central premise for the Alaska Native bar included in the latest regulations.
He asserted the theory that the Associate Solicitor’s opinion had rested on a legal error, suggesting that, “[a]lthough that opinion has not been withdrawn or overruled, we recognize that there is a credible legal argument that ANCSA did not supersede the Secretary’s authority to take land into trust in Alaska under the IRA.”
In 2001, the Associate Solicitor’s opinion was withdrawn.
Still, the regulatory exception remained in place for Alaska Natives. The Department of the Interior explained that the bar had long been a matter of law and explained that it needed time – specifically, three years – to determine whether or not it should be lifted.
Ultimately, all such efforts were dropped, and the tribes filed suit.
The court began by considering whether the Secretary of the Interior retained the statutory authority to take land into trust for Alaska Natives.
With regard to the first point, the court concluded that ANCSA could not be read to have stripped the Secretary of the right to take land into trust for Alaska Natives. This conclusion was based on textual and structural evidence, and on the strong presumption against implied repeals.
According to the court, “The text of ANCSA and its structure, read alongside FLPMA, suggest that the Secretary retains the authority to take Alaska land into trust. Congress explicitly—and, on the State’s view, redundantly—repealed the Allotment Act, the Townsite Act, and, the Secretary’s authority to establish reservations in Alaska. Congress did not explicitly eliminate the grant of authority to take Alaska land into trust.”
The court further considered whether the regulation diminished the rights of Alaska Natives when compared with other Indian tribes.
The plaintiffs had advanced the theory that a bar on the taking of land in trust for Alaska Natives constituted their rights in accordance with relevant federal law stating: “Any regulation or administrative decision or determination of a department or agency of the United States that is in existence or effect on May 31, 1994, and that classifies, enhances, or diminishes the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes by virtue of their status as Indian tribes shall have no force or effect.”
The Secretary argued in part that the referenced law only prohibits discrimination between similarly situated tribes, not to all Native American tribes as a whole.
The court sided with the plaintiffs, concluding that the Alaska exception shall “have no force or effect.”
The extent of this finding remains to be determined, however. The court will now consider whether only the relevant provision should lose force, or whether a larger portion of the regulation should be brought down by this failure.
*For purposes of this article, all references to Alaska Natives exclude the Metlakatla Tribe, which was granted a reservation by Congress in 1891 after its people relocated from Canada’s British Columbia to Alaska. The Metlakatla lands have survived the past century’s legislative abyss unscathed.