Federal judge rules Alaska tribes can place land in trust, step towards ‘Indian country’

A federal judge in Anchorage has ruled that the U.S. Department of the Interior can place land in trust on behalf of Alaska Native tribes, a decision that would allow the tribes to create “Indian country” that was largely eliminated here by the 53-year-old Dissolution Act. Alaska Native claims.

In a 39-page summary order, U.S. District Court Judge Sharon Gleason ruled mostly, but not all, against the state of Alaska, which sued the Interior Department in 2023, challenging a legal memo that said the department believed it had the right to take the lands into trust on behalf of the state’s 228 federally recognized tribes.

At issue in Wednesday’s case was the Biden Department of the Interior’s decision to accept a trust application from the Central Council of Tlingit and Haida Indian Tribes in Alaska, which sought to protect a 787-square-foot plot of land in downtown Juneau.

Gleason found that while the Department of the Interior did have the authority to place the land in trust, the process used for the Tlingit and Haida application was flawed and should be repeated.

Placing the land in trust would place it under tribal law and protect it from being sold or taxed by city and state officials, effectively perpetuating its power. The Tlingit and Haida have been working for decades to place part of Juneau’s historic Indian Village in trust.

(Previously: Cities and tribes navigate new terrain as Alaska Native territory slowly expands)

A U.S. District Court in Washington previously ruled in favor of Alaska tribes to place land in trust, but that ruling was later overturned by an appeals court and Interior Department regulations changed depending on the party in control of the White House.

The Democratic Obama and Biden administrations have supported efforts by Alaska tribes to bring the lands under tribal control, while the Republican Bush and Trump administrations have opposed it.

“I think the most important takeaway for the tribe is that for the second time a federal judge has ruled that the secretary (of the interior) retains the right to take land into trust in Alaska. The state has fought this many times and lost,” said Whitney Leonard, a lawyer who represented the Tlingit and Haida in court.

Lawyers representing the Interior Department declined to comment on the matter.

Most Alaska Native land in the state is owned by Native corporations, which are subject to Alaska and federal law. Alaska Native tribes, which are sovereign governments and can exercise authority over Indian Country, have relatively little land under their control.

“From the tribe’s perspective,” Leonard said, “the ability for the tribe to take control of its lands and control how those lands are designated and used on an ongoing basis is really important to the tribe. “So the tribe has made a concerted effort over the decades to go through this process and acquire the land in trust.”

Attorneys representing the state of Alaska argued that although the Alaska Native Claims Settlement Act of 1971 did not expressly prohibit the Department of the Interior from holding land in trust on behalf of tribes, Congress’ actions suggested it had the intention to do so.

In its legal argument, the state expressed concern that placing the land in trust could divide Alaska into multiple, disparate jurisdictions.

“We filed this lawsuit because of the patchwork it would create with reservation enclaves scattered across the state,” Alaska Attorney General Treg Taylor said in an emailed statement Wednesday. “The judge’s decision today ensures that will not happen for now. The agency’s decision has been overturned, and the agency will have to overcome several significant hurdles to grant the application in the future. The decision did not provide the clarity and finality that the state ultimately sought.”

Attorneys representing the federal government and the Tlingit and Haida tribes argued that the language of federal law, which does not prohibit taking lands into trust, was decisive.

To support their argument, state lawyers suggested it was a “substantial issue,” a term in federal case law that says Congress must expressly grant an agency authority if it involves a decision of extreme economic and political significance.

Gleason opposed the idea, stating, among other things, that the issue “would not affect millions of Americans or involve the loss of billions of dollars.”

She added that while the state suggested that “the court should still find that (the land trust) was impliedly set aside, the court refuses to do so.”

During an oral argument this spring, Gleason expressed skepticism about the rules the federal government uses to decide who can hold land trust here.

The state of Alaska argued that the federal decision in the Tlingit and Haida case would allow “any person of Indian ancestry in Alaska, regardless of percentage of ‘Indian blood,’” to place land in trust. In the Lower 48, someone must be “one-half or more” Native to place land in trust.

Gleason agreed with the state’s argument, saying the Interior Department must declare that a tribe meets one of three definitions in federal law before placing land in trust.

He also “finds problematic” the Interior Department’s statement that it placed Tlingit and Haida lands in trust as part of the “Indian lands restoration.”

The Alaska Native Claims Settlement Act specifically ended aboriginal rights to Alaska, Gleason said. While the Interior Department can place tribal land in trust, she said, it cannot justify that decision by saying it is returning the land to the tribe.

This finding is somewhat academic. This does not prevent the department from placing historic tribal land in trust; the federal government simply cannot use this historical use as justification for such action.

It is not yet clear whether Wednesday’s decision will be tabled. All parties have said they are still following Gleason’s order.

“On the one hand, the Court definitely grappled with the language in ANCSA that eliminated the reservation system and seemed to indicate that reservations are not permitted in Alaska. On the other hand, the Court still ruled that lands could be held in trust. Because this decision ultimately appears to raise more questions than answers, we will need some time to carefully evaluate it before taking next steps,” Taylor said in an email.

Originally posted by Alaska Lighthouseindependent, nonpartisan news organization covering the government of the state of Alaska.