Thursday, December 18, 2014

Department of the Interior publishes final regulation on trust land acquisitions for Alaska Natives

Today the Department of the Interior published a final regulation removing the prohibition against the Secretary of the Interior acquiring lands in trust status on behalf of Alaska Native Tribes and Alaska Native individuals. 

The new rule reopens a door which had been closed two decades ago when a department lawyer incorrectly concluded that a 1971 law had repealed the Secretary’s authority to protect Alaska Native tribal and individual lands.  Today’s action comes in direct response to litigation brought by the Native American Rights Fund to overturn that illegal limitation on the ability of the Secretary to protect Alaska Native lands.

NARF challenged the prohibition in a 2006 lawsuit,
Akiachak Native Community, et al. v. Salazar, brought against the Secretary on behalf of four Tribes and one Native individual—the Akiachak Native Community, Chalkyitsik Village, the Chilkoot Indian Association, the Tuluksak Native Community, and Alice Kavairlook.  Working with the Alaska Legal Services Corporation, NARF challenged a regulation found at 25 C.F.R. § 151.1 which generally barred the Secretary from acquiring lands in trust status (other than for the Metlakatla Indian Community).  NARF argued that this differential treatment of Alaska Native Tribes violated a statutory rule set forth in the Indian Reorganization Act (25 U.S.C. § 476(g)) nullifying federal regulations that discriminate among Native American Tribes.  The State of Alaska intervened in the longstanding case to argue that this differential treatment was required by the Alaska Native Claims Settlement Act, but the District Court for the District of Columbia rejected that position and agreed with NARF and the Tribes on all counts.  It is that court decision which laid the groundwork for today’s final rule.

Although the new Interior Department rules remove a key barrier to the Secretary’s acquisition of trust lands in Alaska, one additional barrier still remains.  The federal court in Washington, D.C. has directed that during the pendency of the State of Alaska’s appeal, the Secretary may now process trust land applications from Alaska but she may not actually acquire title to such lands until the litigation is concluded.  Briefs in the case are scheduled to be filed early next year.  

Lead attorney Heather Kendall Miller called today’s announcement “an extraordinary step forward in the longstanding battle of Alaska Tribes to secure greater tribal self-determination, to protect their lands and way of life in perpetuity, and to enjoy the same basic privileges and immunities enjoyed by all other Native American Tribes.”  Ms. Kendall Miller added that “only by enjoying all of the governing tools available to other Native American Tribes will Alaska Tribes finally have the means to preserve their way of life and to protect the health, safety, and welfare of their communities.”