Indian country

 

News analysis

 

Just in time for the political season in Alaska, the administration of President Donald Trump has withdrawn and is reviewing a Department of the Interior decision on lands-into-trust that would have made possible defacto Indian nations similar to reservations in the 49th state.

Putting Native lands-into-trust is a complicated and divisive issue in a land where the Alaska Native Claims Settlement Act of 1971 (ANCSA) was once thought to have settled aboriginal land claims in a better and more equitable way than the reservation system.

Some in the Native community, however, view the Claims Act as a sell-out to Western capitalism and want their own sovereign nations within the state as reservations are now viewed elsewhere. The administration of President Barack Obama moved to grant that wish in 2014.

“Our aim is to make it possible to secure tribal homelands,” Interior said in a press release at the time. 

The decision split Alaskans left and right, rural and urban, and then quietly faded away. What the revisit will mean remains to be seen.

The Interior letter spelling out the grounds for the review cites a 1978 conclusion by the “Associate Solicitor for Indian Affairs…that it would ‘be an abuse of the Secretary’s discretion’ to acquire land in trust in Alaska based on the language and apparent intent of ANCSA.”

Alaska Republican governors and Republican candidates for governor have in the past held to that view, but that was then and this is now.

Since Alaska Native corporations helped finance incumbent Republican Sen. Lisa Murkowski’s stunning, write-in upset of conservative Republican primary winner Joe Miller in 2010, the state’s Republican leaders have appeared warier of involvement in issues affecting the state’s Native community.

Not a peep was heard from Republican leaders in-state after Rep. Don Young, R-Alaska, earlier this year tried to amend federal tax standards to give ANCSA corporations an unprecedented 3 percent share of royalty revenues from any new oil development in the Arctic National Wildlife Refuge. The funds would have come out of the state’s share of what was supposed to be a new, 50-50 split with the feds in spite of a seeming Statehood Act promise entitling the state to 90 percent under the terms of the Mineral Leasing Act of 1920, although there are those who argue the statehood promise on revenue sharing is not as clear as it might seem.

Murkowski was the one who first argued for the new 50-50 split, saying it was vital to get the votes in the Senate to pass the legislation to open ANWR to drilling. She; Sen. Dan Sullivan, R-Alaska, and Gov. Bill Walker later agreed privately with Young on the plan to give 3 percent to the ANCSA corporations, but Murkowksi eventually balked at attaching the tax rider to a Senate spending bill, saying she was bowing to a Senate agreement to avoid all such moves this year.

The corporations were uniformly lined up behind the ANWR legislation. Where they stand on lands-into-trust is more complicated. When the Obama administration rule was under review, Interior records reflect that several of the regional corporations “expressed concern that their ability to develop” mines or oil and gas prospects could be put in jeopardy by trust lands.

“These commenters emphasized that the access of these corporations to their mineral estate is critical to the success of their economic development efforts,” Interior reported. “Several stated that their consent should be required for any applications for land into trust in which they own the subsurface estate.”

The agency dismissed those concerns with the observation that “it is well-settled under the law that a mineral estate remains dominant, and a subsurface owner has a right of reasonable access to the minerals below.”

The law settles legal issues, but it doesn’t resolve political issues, and that can make for difficulties in the north. Tribes and Native corporations in Alaska have sometimes found themselves uncomfortably at odds over development.

The Kivalina tribe in Northwest Alaska has long battled with the NANA Regional Native Corporation over the Red Dog Mine, the world’s largest zinc mine and the economic mainstay of Northwest Alaska.

Alaska’s Native people are no different from non-Native Alaskans in their wide diversity of opinions on the path forward into the future.

The real fight

But the big debate over lands into trust has largely settled on the transfer of legal authority from the state to tribes. Walker, a Republican turned independent, was roundly criticized for sacrificing state sovereignty in rolling over to the feds on lands-into-trust in 2016. 

How that will play out for the incumbent governor and running mate Lt. Gov. Byron Mallott, the former president of the Sealaska regional corporation, in the runup to the fall election is another thing that remains to be seen.

Though the latest action by Trump’s Interior to review the decision of Obama’s Interior has so far attracted little mainstream media attention, it’s hard to imagine that lands-into-trust won’t again become a political football.

It has in the past fostered a politically contentious split along Republican-Democrat party lines and urban-rural geographic lines.

Rural Alaska represents the strongest Democrat voting block in the state, and much – if not most – of the largely Native population there favors land into trust for villages that so desire.

“One aspect to understand is that trust land falls under tribal government authority and is not subject to state law. This allows tribes to form their own governments, make and enforce laws, tax citizens, and to determine membership, who to include and exclude,” according to 1st Tribal Lending, an entity that assists tribal groups trying to obtain loans from the U.S. Department of Housing and Urban Development.

Local control free of the oversight of seemingly faraway state officials sounds to good to some in small, isolated villages. But other Alaskans fear a proliferation of tribal governments could lead to an Indian-country patchwork of differing laws, taxes and regulations across the state making life difficult for everyone, including villagers traveling between villages.

Most of the villages in Alaska are concentrated in river corridors that form water roads in the summer and ice roads in the winter. Different laws in every village would make Alaska like driving the back roads of the Lower 48 with every small town set up with a different, independent government reporting only to Washington, D.C.

The Fairbanks Daily News-Miner, one of the few mainstream news organizations to note the latest Interior action, Sunday applauded the Trump administration’s move to review the earlier Obama decision, and called lands-into-trust “a ghastly assault on Alaska’s authority as a state.” 

The newspaper’s editorial generally reflected what has been the Republican view on the issue. A string of Republican governors fought efforts to tribalize the state and when that failed tried to block moves to put lands-into-trust to help tribes strengthen control over tribal members and extend control to non-tribal members.

Federal officials for years agreed with the state’s view that Uncle Sam lacked the legal authority to take Alaska lands into trust. But in 2006, four of the state’s 229 federally recognize tribes sued the feds in an effort to overturn an Interior ruling that prohibited the agency from establishing Native trusts in the 49th state.

The Akiachak Native Community, the Chalkyitsik Village Council, and the Tuluksak Native Community IRA in Western Alaska and the Chilkoot Indian Association in Southeast argued the agency erred in deciding ANCSA barred it from taking Alaska lands-into-trust.

Six years later, a federal district court judge ruled in their favor. Two years after that, Interior – under Democrat President Barack Obama – began writing rule for lands-into-trust. Meanwhile, the state of Alaska under Republican Gov. Sean Parnell appealed the federal court ruling.

On appeal “the court found that the state would suffer no harm from allowing the rule-making to proceed,” the Native American Rights Foundation reported, “but granted the stay in part to prevent the Interior Department from considering specific applications or taking lands into trust in Alaska until resolution of the appeal.”

The state was still arguing the case when Parnell lost his bid for re-election. Rural Alaska helped Walker and Mallott, the Democrat candidate for governor before joining Walker on an independent ticket, squeak out a victory with 48 percent of the vote.

Walker eventually dropped the state appeal of lands-into-trust.

The beginnings

How Alaska got to that point goes back to a 1993 administrative order under which the federal government decided to recognize every ANCSA-designated village in Alaska as a tribe. As a result, the state became to be home to about 40 percent of the nation’s tribes though only about 2 percent of the American Indian and Native population lives in Alaska.

The state opposed the original decision on tribes much as it regularly opposed lands-into-trust, although opposition as well as support has waxed and waned along party lines.

Gov. Steve Cowper, a Democrat, in 1990 issued an administrative order recognizing Alaska tribes. The governor who followed him into office, the late Wally Hickel, promptly rescinded it with the declaration that Alaskans are “all one people.”

His successor, Tony Knowles, another Democrat, reversed policy once more and began a project he called the “Millennium Agreement” meant to foster “constructive and meaningful” government-to-government relationships between the state and tribes.

Not much of substance came of it, however, and the following string of governors – Republicans Frank Murkowski, Sarah Palin, and Parnell – while largely accepting the existence of tribes, fought the idea of establishing “Indian country” wherein tribes could exercise full legal authority over federal lands-in-trust.

It is hard to imagine the picture could get so confused in a state where almost 50 years ago a good-faith effort was made to avoid the oppression of the lower 48 system of Indian reservations in favor of an idealistic and well-meaning inclusion.

The Claims Act revoked, with the exception of the Annette Island Reserve near Ketchikan,  the few reservations in existence in Alaska in ’71 and replaced them with a land settlement – a contract – that established 224 village and 13 regional Native corporations; granted the corporations legal title to 44 million acres of land, an area about the size of Missouri; and provided the new businesses nearly $1 billion in start-up capital.

With the fledgling state then on the cusp of an oil boom and the good intentions of the “Flower Power” era still wafting, ANCSA was a bold scheme to embed Native people in the fabric of fast-growing Alaska “in conformity,” as the act said, “with the real economic and social needs (of) Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States government and the state of Alaska.”

The weaving has not gone smoothly. There is no denying the good the Claims Act did for some Natives. Sixteen of the state’s largest businesses are now Native corporations, and the financial success has given those corporations the money to wield significant political power.

Just ask Joe Miller.

But many rural Natives still live in poverty and depend heavily on federal and state assistance to survive, and many urban Alaska Natives struggle to stay above the poverty level.

“In Alaska, Medicaid covers two in three (American Indian and Alaska Native children and more than one in four American Indian and Alaska Native adults,” according to the Henry J. Kaiser Family Foundation. About a third of rural Alaskans report receiving SNAP – Supplemental Nutrition Assistance Program benefits or what used to be called food stamps. Crime rates in rural Alaska remain high and law-enforcement resources low.

In the decades since the passage of ANCSA, there are reasons to question how well it has worked for Alaska Natives overall, especially in rural areas with no economic base and no apparent resources on which to build an economy.

No one can know, however, whether lands-into-trust would make things better or not, though there are those who argue it could.

“This authority helps tribes in many ways; for example, by facilitating tribal land restoration and economic development, insulating tribes from state and local jurisdiction and taxation, and protecting land with historical and cultural significance,” Geoffrey Stommer and colleagues wrote in the American Indian Law Journal. 

Stommer, an Indian law attorney in Portland, sees land-into-trust a potential “game
changer, a shift in ownership and land tenure that brings enhanced tribal jurisdiction and opportunities for economic development, cultural resource protection, and the exercise of tribal sovereignty.”

But there is also the possibility land-into-trust could create more new problems than it solves old ones.

Out on the Kuskokwim River in far Western Alaska, there are villages which hope land-into-trust will free them from the yoke of state and federal regulations on the harvest of Chinook salmon and allow them to set their own limits. But with the salmon runs weak these days and everyone along the river wanting their “fair share” of the fish, someone would still need to moderate between what could be more than two dozen tribes to protect the salmon run from being decimated.

In such a situation, it’s not hard to imagine the bureaucratic tangle of lands-into-trust envisioned by  the state of Alaska affecting more than just the state of Alaska.