A new legal opinion by the top attorney at the United States Department of the Interior has extended the jurisdiction of Alaska tribes over a broad swath of the state, upending decades of precedent and offering new opportunities for the state’s 228 federally recognized tribal governments.
The opinion, issued Feb. 1 by Interior Department Solicitor Robert Anderson, says tribal authority applies on land allotments given to individual Alaska Natives unless those parcels of land are owned by a nontribal member or are “geographically removed from the tribal community.”
“That is a very big change,” said Joel Jackson, president of the Native Village of Kake in Southeast Alaska. “We’re always looking for land back. That’s important to us. We’re going to do that.”
The opinion, which reverses decades of prior interpretation, doesn’t change who owns the land, but it does change the laws that apply to the land. Tribal law, not just state, local, or federal law, will now apply.
Since the passage of the Alaska Native Claims Settlement Act, Alaska’s tribal governments have had authority over minimal territory because that law assigned Native corporations, which are legally distinct and not governments, most Native land.
Almost 17,500 allotments have been awarded to individual Alaska Natives since 1906 or are in the process of being awarded, according tofigures published by the U.S. Department of the Interior. Each parcel can be as bigas 160 acres.
That means the opinion has the potential to change the legal framework around many thousands of acres in Alaska.
“All in all, it will be a positive step forward for the state of Alaska,” said Rhonda Pitka, first chief of the Native Village of Beaver. “Having Native lands in Native jurisdiction makes a lot of sense for everybody, I think.”
Attorneys for the state of Alaska disagree. Ina court filing last month, they expressed alarm, calling the new opinion a “sea change” for the state.
In response to emailed questions, the Alaska Department of Law provided a written FAQ that said, “In two strokes of its Solicitor’s pen, Interior has changed how Alaska has operated for more than 50 years. The state has gone from minimal amounts of tribal territorial jurisdiction to millions of acres.”
“The federal government already owns more than 60% of the lands in Alaska, but with these recent changes that percentage could significantly increase,” the FAQ said.
The change has implications for things as varied as game management, local zoning, and police coverage.
In the past 10 years, the Native Village of Eklutna and the Central Council of the Tlingit and Haida Indian Tribes of Alaska each sought to open federally regulated gaming halls on Native allotments in their traditional territory.
A federal judge and the National Indian Gaming Commission, respectively, rejected the plans, concluding that the allotments were not under tribal jurisdiction.
“The tribe is reviewing the solicitor’s opinion with interest and considering what it might mean for us,” said Brenda Hewitt, tribal administrator for the Native Village of Eklutna.
A message to the Tlingit and Haida Central Council was not returned.
Legal experts expressed mixed opinions about the state’s analysis, which was offered in a legal filing known as a surreply.
“The state’s vibe in its surreply is a bit like that ‘It’ll be anarchy!!!!’ line in the ‘Breakfast Club.’ Will it though? My short answer is that I don’t think it will be anarchy or affect folks much day to day,” said Erin Dougherty Lynch, senior staff attorney for the Native American Rights Fund, by email.
“And if the state is worried about confusion, it could proactively work with Tribes to address any issues, as other states have done for years,” Dougherty Lynch said.
Dougherty Lynch said that Palm Springs, California is an example. There, the Agua Caliente Reservation is arranged in a checkerboard over the city, with Native land next to municipal and private land.
Multiple people familiar with the new legal opinion said that each of the state’s tribes will use the new authority differently and gradually, based on local needs and goals.
“There is no one, tribal way of doing things,” Pitka said. “It’s really a local decision, and it’s up to (the tribes) how they wish to enforce it."
Pitka said that she believes the change will help public safety in her region. The holders of Native allotments nearby are being plagued by trespassers, she said, but state and federal law enforcement has been slow to address the problem.
“We’ve called them on this several times, and the troopers won’t enforce it. They asked us to put up more signs on our lands. So we do that, and they still don’t come out and enforce the trespass,” Pitka said.
In one case, Pitka said, someone appeared to steal large amounts of gravel from an allotment. Having tribal jurisdiction over that allotment might allow the tribe or the owner of the allotment to bring claims in tribal court against trespassers and thieves.
“That would be the remedy,” Pitka said. “That would be kind of exciting to do. That would be kind of exciting to test.”
Dougherty Lynch also suggested that the state’s concerns should be viewed in context. The state of Alaska, federal government, and Native tribes are deep in litigation over the extent to which the federal government has the ability to take land into trust on behalf of tribes. Trust lands are held by the United States for the benefit of tribes or individuals.
Tribes in the Lower 48 and Hawaii have long had that ability, but the state has argued that federal law applies differently in Alaska, something the U.S. Department of the Interior and several tribes contest.
The state filed suit against the federal government in 2023, after Tlingit and Haida put a 787-square-foot parcel of land into federal trust, becoming the first tribe to take that action since 2017.
Oral arguments in that case are scheduled for March 28, and the state has argued that the matter should fall under the “major questions doctrine,” which says that judges should give federal agencies less deference when there are conflicts over the meaning of the law.
The arrival of the new solicitor’s opinion adds evidence to the idea that the issue is a major question, state attorneys say. Opposing attorneys disagree, and the issue is among those that the judge will decide.
Most Native allotments have been in the hands of individuals or families for decades.
From 1906 through the enactment of the Alaska Native Claims Settlement Act in 1971, individual Alaska Natives could request up to 160 acres of land from the federal government, akin to a homestead.
Natives lost the ability to select allotments under ANCSA, but in 2019, Alaska’s congressional delegation inserted a provision allowing Alaska Native veterans of the Vietnam War, or their survivors, to select new allotments.
Already, the U.S. Bureau of Land Management has received 358 applications, with more expected. Both Gov. Mike Dunleavy and Alaska’s members of Congress have urged the federal government to speed up the transfer process, an act that might result in more land being placed under tribal jurisdiction.
To date, the federal government has restricted the locations of new allotments, and most are in Interior, northern, or western Alaska. Jackson, of Kake, said that Vietnam veterans in his area have been reluctant to seek allotments under the new law because they’re far from home.
Dougherty Lynch said that it’s too early to tell how much new tribal jurisdiction will be created by the new legal opinion, which requires the allotment to be owned by a tribal member and be geographically close to the relevant tribe.
“So given those requirements there are some allotments (who knows how many) that would not meet that criteria,” Dougherty Lynch said by email.
In Southeast Alaska, Jackson and the Kake Tribe have a long-running culture camp on one Native allotment, and the tribe has been seeking to acquire the land around the camp in order to protect it. The order could offer additional protection, Jackson said.
But he also has his eyes in a different direction, said Jackson. The Tribe has been fighting development projects in the Tongass National Forest for more than two decades and has frequently taken a lead role in lawsuits over the region’s Roadless Rule.
Jackson said that he sees the new order as a chance to protect some of the remaining stands of old-growth forest in the region.
“We want to protect it,” Jackson said. “That’s our main concern.”
Jackson is now in his 60s, and as a younger man worked on a road-building crew, logging in the region. He later came to realize what was being lost as the forest was cut.
“When I take a breath and look back — and I tell you the truth — I was out on my boat, and I looked up at the land, and a tear rolled down my cheek,” Jackson said. “I still go out — I can hardly walk very far anymore. But I’ll walk into an area, and find a log to sit on, and just sit there and absorb everything that’s going on around me: the smells, the sounds,” Jackson said. “And, you know, it’s just amazing how much peace it brings me. It centers me in my life. And it’s way more valuable to me to leave something for future generations to experience that, to be able to walk into an old growth forest.”
This article was republished from the Alaska Beacon.