Federal judge considers lawsuit that could decide Alaska tribes’ ability to put land into trust

Tlingit, Haida and Tsimshian group stitchery successful Juneau for nan opening of Celebration connected June 5, 2024. (James Brooks/Alaska Beacon)

This month, hundreds of Tlingit, Tsimshian and Haida tribal members gathered successful Juneau for Celebration, a four-day, biennial taste festival.

As they walked to Juneau’s normal center, attendees passed a achromatic banner advocating “LandBack,” or nan return of onshore to Alaska Native tribes.

Hundreds of miles away, successful Anchorage, a national judge is considering a ineligible lawsuit that could let tribal governments, alternatively than Alaska Native corporations, to return authority complete important amounts of Alaska land.

Attorneys based on nan case, known as Alaska v. Newland, successful early May, and U.S. District Court Judge Sharon Gleason is preparing a ruling. 

At its heart, nan lawsuit involves a straightforward question: Can nan national authorities return onshore into spot connected behalf of Alaska Native tribes?

Doing truthful would let those tribes to create “Indian Country,” giving tribes nan expertise to exert their sovereign governmental powers. It would besides forestall nan onshore from being sold aliases fixed away. 

The authorities of Alaska, which revenge nan lawsuit, has based on that erstwhile Congress passed nan Alaska Native Claims Settlement Act successful 1971, it did not intend to let nan creation of caller Indian Country successful Alaska.

Arguing successful court, Alaska Solicitor General Jessie Alloway asked Gleason to see what has changed successful nan past 50 years.

“It’s surely not immoderate legislative intent connected nan portion of Congress,” she said.

But nan national government’s position connected existing rule has changed. In November 2022, nan Department of nan Interior concluded that ANCSA did not forbid nan national authorities from taking caller onshore into spot here.

The Central Council of nan Tlingit and Haida Indian Tribes of Alaska was among nan first tribes to return action based connected that conclusion, petitioning to person nan national authorities put a small, 787-square-foot parcel into trust. 

The Tribe hopes respective adjacent parcels will follow. 

Speaking successful tribunal past month, lawyer Charmayne Staloff represented nan national government.

Rhetorically, she asked whether a 90-year-old national rule gave nan Secretary of nan Interior nan expertise to return onshore into spot wrong Alaska.

“The reply to that mobility is yes,” she said.

“Second, does nan caput clasp that authority today? The reply is besides yes,” she said.

Attorneys for nan national authorities and Tlingit and Haida person based on that while ANCSA did erase immoderate tribal spot land, it didn’t forestall nan creation of caller spot land.

The authorities of Alaska has based on that nan rumor is simply a “major question,” a cardinal word successful national jurisprudence. 

Under a 2022 U.S. Supreme Court opinion, if thing is simply a awesome mobility — involving issues of “vast economical and governmental significance” — a national agency can’t enactment without definitive guidance from Congress.

Staloff based on that nan rumor doesn’t use here. Tribes successful nan 49 different states person agelong been allowed to spot onshore into trust, and Alaska is nan only exception. 

“This is simply not a lawsuit successful which an agency relied connected immoderate vague connection aliases ancillary proviso to observe unheralded power,” she said.

Judge Gleason besides sounded skeptical of nan proposal that nan rumor is simply a awesome question, asking Alloway if she tin deliberation of a anterior illustration wherever a awesome mobility progressive conscionable 1 state.

“I’ll beryllium honorable pinch nan tribunal that I deliberation that that would beryllium an rumor of first impression, but I don’t deliberation that there’s nary support for it,” Alloway said.

Gleason questioned some attorneys intermittently and astatine 1 constituent said that based connected her reference of national law, she “isn’t persuaded” that immoderate fixed people is entitled to put onshore into trust. 

Gleason didn’t opportunity erstwhile she whitethorn norm connected nan case, but she appeared to hint astatine nan guidance of her reasoning erstwhile she asked some attorneys what they would deliberation astir a determination that declared nan rumor was not a awesome mobility but put limits connected nan national government’s expertise to put onshore into trust.