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

Tlingit, Haida and Tsimshian people gather in Juneau for the opening of Celebration on June 5, 2024. (Photo by James Brooks/Alaska Beacon)

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

As they walked to Juneau’s convention center, attendees passed a black banner advocating “LandBack,” or the return of land to Alaska Native tribes.

Hundreds of miles away, in Anchorage, a federal judge is considering a legal case that could allow tribal governments, rather than Alaska Native corporations, to take authority over significant amounts of Alaska land.

Attorneys argued the case, known as Alaska v. Newland , in early May, and U.S. District Court Judge Sharon Gleason is preparing a ruling.

At its heart, the case involves a straightforward question: Can the federal government take land into trust on behalf of Alaska Native tribes?

Doing so would allow those tribes to create “Indian Country,” giving tribes the ability to exert their sovereign governmental powers. It would also prevent the land from being sold or given away.

The state of Alaska, which filed the lawsuit, has argued that when Congress passed the Alaska Native Claims Settlement Act in 1971, it did not intend to allow the creation of new Indian Country in Alaska.

Arguing in court, Alaska Solicitor General Jessie Alloway asked Gleason to consider what has changed in the past 50 years.

“It’s certainly not any legislative intent on the part of Congress,” she said.

But the federal government’s view on existing law has changed. In November 2022, the Department of the Interior concluded that ANCSA did not forbid the federal government from taking new land into trust here.

The Central Council of the Tlingit and Haida Indian Tribes of Alaska was among the first tribes to take action based on that conclusion, petitioning to have the federal government put a small, 787-square-foot parcel into trust .

The Tribe hopes several adjacent parcels will follow.

Speaking in court last month, attorney Charmayne Staloff represented the federal government.

Rhetorically, she asked whether a 90-year-old federal law gave the Secretary of the Interior the ability to take land into trust within Alaska.

“The answer to that question is yes,” she said.

“Second, does the secretary retain that authority today? The answer is also yes,” she said.

Attorneys for the federal government and Tlingit and Haida have argued that while ANCSA did erase some tribal trust land, it didn’t prevent the creation of new trust land.

The state of Alaska has argued that the issue is a “major question,” a key term in federal jurisprudence.

Under a 2022 U.S. Supreme Court opinion , if something is a major question — involving issues of “vast economic and political significance” — a federal agency can’t act without explicit direction from Congress.

Staloff argued that the issue doesn’t apply here. Tribes in the 49 other states have long been allowed to place land into trust, and Alaska is the only exception.

“This is simply not a case in which an agency relied on some vague language or ancillary provision to discover unheralded power,” she said.

Judge Gleason also sounded skeptical of the suggestion that the issue is a major question, asking Alloway if she can think of a prior example where a major question involved just one state.

“I’ll be honest with the court that I think that that would be an issue of first impression, but I don’t think that there’s no support for it,” Alloway said.

Gleason questioned both attorneys intermittently and at one point said that based on her reading of federal law, she “isn’t persuaded” that any given tribe is entitled to put land into trust.

Gleason didn’t say when she may rule on the case, but she appeared to hint at the direction of her thinking when she asked both attorneys what they would think about a decision that declared the issue was not a major question but put limits on the federal government’s ability to put land into trust.

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