Published on September 4, 2015
President Barack Obama’s visit to Alaska was inspiring. I eagerly watched everything I could see online: The official restoration of the name Denali, his powerful words on the climate, his visits to Resurrection Bay, and his interaction with Alaska’s Native communities. I especially loved the Yup’ik dancing (and the president showing his moves).
But there is one story that’s missing from the national accounts of the president’s visit: the role of tribes in determining Alaska’s future.
The president himself referred to this debate in several ways. The first mention was in his statement to tribal leaders when he said: “My administration also is taking new action to make sure that Alaska Natives have direct input into the management of Chinook salmon stocks, something that has been of great concern here.” Then a few sentences later he promised to follow up on “everything from voting rights to land trusts.”
Those last two words are the story that needs to be told. The president’s language was a bit off. It’s not land trusts, but land into trust. This issue goes far beyond the status of land; it’s about the nature of sovereignty in Alaska. It’s complicated but basically there are two competing narratives that need to be resolved into a single story.
One version says that tribes ceased to exist when the Alaska Native Claims Settlement Act (or ANCSA) became law in 1971. This story says that Alaska is the primary vehicle for all government in Alaska. The state sets the rules for education, law enforcement, land use, etc., etc.
But there is another reading of this history. This narrative says ANCSA was primarily a land settlement act. It did create a different structure, such as establishing Native corporations, but it did not end the right of Native people to determine their own future.
This second story arc began shortly after ANCSA. As a Native American Rights Fund attorney Robert Anderson said in 1973: “….our work in Alaska is really on the cutting edge of Indian Law. We are establishing for essentially two hundred tribes, that they are recognized on the same level as those in the lower forty-eight (states) and that they have all the powers and authority.”
That story has multiple chapters that include the recognition of those tribes by the federal government, the push for Native hunting and fishing rights as well as the management of fish and game, law enforcement, and the most recent episode, a debate about land into trust. It’s this last issue that’s hot right now and worth a state and national conversation.
A few days before the president’s visit, Alaska’s new governor pursued an appeal that would prevent the Interior Department from taking land into trust, thus creating “Indian Country.”
The case involves Native villages Akiachak, Chalkyitsik, Chilkoot Indian Association, the tribe in Haines, and Tuluksak. These tribes seek to govern on issues ranging from law enforcement to zoning. The same powers held by other tribes. Indeed, the recognition (and expansion) of tribal authority was one of the main recommendations by the federal Indian Law and Order Commission, a bipartisan presidential and congressional task force.
But that’s unacceptable to Alaska. Simply put: The State wants to block tribal sovereignty.
As the state itself said:
“When the federal government takes land into trust, it holds it for the benefit of an individual Alaska Native or a Tribe. It is the federal government’s position that this land becomes Indian country—a legal status that can be likened to an Indian reservation. Currently, Alaska has only one reservation—the Metlakatla Indian Community’s reservation on the Annette Islands Reserve. Indian reservations are generally exempt from state jurisdiction, including taxation, except when Congress specifically authorizes such jurisdiction.
“If lands are put into trust in Alaska, the exact scope of federal, state, and tribal powers on trust lands would be played out as specific factual scenarios develop. Alaska would retain some civil and criminal powers over trust lands because Alaska is a P.L. 280 state. But generally, the federal government has the power to manage tribal and individual land that it holds in trust. The federal government will potentially have powers to approve and cancel leases of tribal trust land; as well as to govern the leasing of mineral resources (including oil and gas), regulate certain fishing activities, manage timber resources, issue grazing permits, and deal with certain water rights and irrigation matters on trust land. And Tribes have jurisdiction over civil and regulatory matters occurring on trust land. Gaming can occur on certain trust land in accordance with the Indian Gaming Regulatory Act.”
This is twisted. The state fears tribal authority. Then, this is not a new position. The one constant theme from the past four decades is that Alaska favors litigation over negotiation. And, when Alaska Natives win, the state appeals until every avenue is exhausted. This is a tired approach.
Indeed, since the Interior Department announced rules in December 2014 the state hasn’t had a formal consultation process about lands into trust, held public hearings or even set up informal town halls. This was the ideal time for a conversation about the future. (The state says it’s still talking. That’s rich. While we’re suing you, let’s negotiate, ok?)
What’s particularly disappointing about this chapter is that the new governor, Bill Walker, promised a different ending. I had a conversation with him during a public forum at the University of Alaska Anchorage last August where he said tribal-state relations would improve. And that’s been mostly true. The governor has been fantastic on many issues, especially the expansion of Medicaid. But on this big one, the future of tribes in Alaska, well, it’s back to court.
This is the story that the rest of the country needs to hear.
Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. For up-to-the-minute posts, download the free Trahant Reports app for your smart phone or tablet.