Federal judge says Alaska tribes may put land into trust, a step toward ‘Indian country’ here

By: James Brooks, Alaska Beacon

Tlingit tribal members march down Front Street in downtown Juneau on June 8, 2024, during Celebration 2024. (Photo by James Brooks/Alaska Beacon)

A federal judge in Anchorage has ruled that the Department of the Interior may take land into trust on behalf of Alaska Native tribes, a decision that could allow tribes to create “Indian country,” which had been mostly eliminated here by the 53-year-old Alaska Native Claims Settlement Act.

In a 39-page summary judgment order, Judge Sharon Gleason ruled mostly but not entirely against the state of Alaska, which sued the Interior Department in 2023 to challenge a legal memo stating that the department believes it has the power to take land into trust on behalf of the state’s 228 federally recognized tribes.

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

Gleason said that while the Interior Department does have the power to place land into trust, the process used for the Tlingit and Haida request was flawed and should be redone.

Putting land into trust would put it under Tribal law and shield it from sale or taxation by city and state officials, effectively locking its authority in place. Tlingit and Haida has worked for decades to place portions of Juneau’s historic “Indian Village” into trust.

The U.S. District Court for Washington, D.C., previously ruled in favor of Alaska tribes’ right to put land into trust, but that ruling was later vacated by an appeals court, and Interior Department rules have fluctuated based on the party controlling the White House. 

The Democratic Obama and Biden administrations have supported Alaska tribes’ efforts to put land under tribal control, while the Republican Bush and Trump administrations opposed them.

“I think the main takeaway for the Tribe is that for the second time now, a federal judge has held that the (Interior) Secretary retains authority to take land into trust in Alaska. The state has now fought that multiple times and lost,” said Whitney Leonard, an attorney who represented Tlingit and Haida in court.

Attorneys representing the Interior Department declined to comment on the decision.

Most Alaska Native land in Alaska is owned by Native corporations, which fall under state and federal law. Alaska Native tribes, which are sovereign governments and can exert authority over Indian country, have relatively little land under their control.

“From the Tribe’s perspective,” Leonard said, “being able to take control of its land and control how those lands are going to be designated and used in perpetuity is really important to the Tribe. That’s why the Tribe has made a concerted effort over decades to walk through this process and have land taken into trust.”

Attorneys representing the state of Alaska had argued that while the 1971 Alaska Native Claims Settlement Act did not explicitly forbid the Department of the Interior from putting land into trust on behalf of tribes, Congress’ actions implied that it intended to do so.

In legal arguments, the state has expressed its worry that allowing land into trust could balkanize Alaska into a variety of disparate jurisdictions.

“We filed this litigation because of the patchwork it would create with enclaves of reservations scattered through the state,” said Alaska Attorney General Treg Taylor in an emailed statement Wednesday. “The judge’s decision today ensures that for the time being, that is not happening. The agency’s decision was vacated, and the agency will have to address some pretty major hurdles in order to grant an application in the future. What the decision did not do was provide the clarity and finality that the State was ultimately seeking.” 

Attorneys representing the federal government and Tlingit and Haida argued that the actual language of federal law — which does not forbid taking land into trust — should carry the day.

To support its argument, state attorneys suggested that the issue is a “major question,” a designation under federal case law that says Congress must explicitly grant an agency a power if it involves a decision of extreme economic and political significance.

Gleason ruled against that idea, saying in part that the issue will not “affect millions of Americans or implicate billions of dollars.”

She went on to say that while the state suggested “the court should still find that (land into trust) was impliedly repealed, the court declines to do so.”

In oral argument this spring, Gleason expressed skepticism about the rules used by the federal government to decide who may put land into trust here. 

The state of Alaska had argued that the federal government’s determination in the Tlingit and Haida case would allow “any person of indigenous descent in Alaska, no matter the percentage of ‘Indian blood,’” to put land into trust. In the Lower 48, someone must be “one-half or more” Native in order to put land into trust.

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

She also “finds problematic” the Interior Department’s statement that it was putting Tlingit and Haida land into trust as part of the “restoration of Indian lands.”

The Alaska Native Claims Settlement Act specifically ended aboriginal title in Alaska, Gleason said. While the Department of Interior may put tribal land into trust, she said, it cannot justify that decision by saying that it is restoring land to a tribe.

That determination is somewhat academic. It doesn’t prevent the department from putting historic tribal land into trust; the federal government simply can’t use that historic use as justification for doing so.

It isn’t yet clear whether Wednesday’s decision will be appealed. All sides said they are still processing Gleason’s order.

“On the one hand, the Court definitely struggled 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 held that lands can be taken in trust. Because this decision ultimately seems to raise more questions than answers, we will need some time to thoroughly evaluate it before determining next steps,” Taylor said by email.