Divided court rebuffs Alaska in bitter land dispute

By Robin Bravender | 07/01/2016 01:22 PM EDT

A federal appeals court today rejected Alaska’s case to keep authority over tribal lands, citing procedural grounds in an opinion that a dissenting judge called a “disservice.”

A federal appeals court today rejected Alaska’s case to keep authority over tribal lands, citing procedural grounds in an opinion that a dissenting judge called a "disservice."

The U.S. Court of Appeals for the District of Columbia Circuit issued a majority opinion in the case, Akiachak Native Community v. Department of the Interior, which involves a long-running dispute over whether the federal government can create new trust land for Alaska Natives.

The majority opinion dismissed Alaska’s appeal of a lower-court decision finding that the state’s claim was moot because the tribes and the Interior Department had already resolved the controversy at the center of the case. The decision is a blow to the state, which has argued that it stands to lose authority over land put into trust on behalf of Alaska Natives.


After many years of fighting, the federal government in 1971 settled land claims by descendants of Alaskan tribes. The Interior Department viewed that settlement as barring it from taking land into trust for tribes in the state. But tribes sued the agency over that interpretation because they wanted additional land taken into trust, which gives the government the legal title over land used by tribes.

A lower court ruled that Interior does have the legal authority to take land into trust on behalf of Alaska Natives, prompting Interior to revise its regulation. The agency removed the exception that was the subject of the original lawsuit.

Alaska appealed to the D.C. Circuit, warning that putting state lands into trust would broadly expand the federal government’s power over the lands. "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," Alaska Attorney General Craig Richards (R) wrote last year.

In the court’s majority opinion today, two judges of a three-judge panel dismissed Alaska’s case, saying the controversy had been settled.

"Unfortunately for Alaska, which intervened in the district court as a defendant and brought no independent claim for relief, the controversy between the tribes and the Department is now moot. We therefore dismiss Alaska’s appeal for lack of jurisdiction," wrote Judge David Tatel, a Democratic appointee. He was joined by Judge Patricia Millett, another Democratic appointee.

During oral arguments in March, much of the judges’ questioning centered on whether Alaska’s challenge was moot (Greenwire, March 4).

Judge Janice Rogers Brown, a Republican appointee, sharply criticized that decision in her dissenting opinion.

"While I acknowledge the power of this court to declare when a case is dead, the court today euthanizes a live dispute," she wrote, arguing that Alaska’s claim was still live.

"The question this court ought to address is whether the Alaska Native Claims Settlement Act (ANCSA) prohibits the Secretary of the Interior from placing land into trust in Alaska," she wrote. "We should not deceive ourselves about the disservice we do the parties in not resolving this case on the merits. The issues presented are of great significance. The district court’s decision and the Department’s actions may very well affect Alaska’s sovereignty — infringing its jurisdictional hegemony and its territorial integrity."

Click here to read the opinion.