By Mary Bishop
Juneau civic leaders may want to revisit an issue they addressed back in June of 2017. It relates to fairness in regulation and taxation of borough business and private properties among other things.
A few small tribally owned properties in downtown Juneau were submitted in 2017 to the Bureau of Indian Affairs for trust status approval. In January of that year a small parcel in Craig was approved by BIA and taken into trust. That parcel in Craig is now the first post-ANCSA Indian reservation or “Indian country” in Alaska. Indian country equates to Lower 48 Indian reservations.
Many Alaskans think the Alaska Native Claims Settlement Act did away with the possibility of Indian reservations in Alaska. Things have changed. Tribes received no land in ANCSA. ANCSA provided lands to native regional and village corporations, not to tribes. Tribes acquire land now through transfers from Native corporations, and likely through purchases and gifts.
Tribally fee-owned land transferred to federal ownership and held in trust for the tribe is sometimes called fee-to-trust land. Whichever name, as Indian Country the property attains some very specific attributes.
So what’s the problem?
First, over 200 tribes are federally recognized to exist in Alaska as dependent sovereign nations. They have certain limited but real authority over their tribal members. Presumably, this authority can be exercised by tribal courts where they exist. This tribal authority was confirmed in 1999 by the Alaska Supreme Court in the Baker v. John case.
These tribes have sovereign immunity from suit — from breach of contract, from “slip and fall” suits, and from other business transaction suits. Tribal immunity is a basic attribute of all recognized tribes but can be waived by the tribe for specific purposes if they so choose. The Douglas Island tribe learned about this when their attempt to sue Central Council Tlingit and Haida Indian Tribes of Alaska failed in state court a few years ago because no waiver of sovereign immunity was signed. Yvonne Ito very recently failed in her attempt to sue the Copper River Native Association, her former employer, as this tribal consortium successfully claimed sovereign immunity from suit in state district court.
Second, when a sovereign tribe owns land in fee the tribe can request BIA to have that land placed in federal trust, i.e. fee to trust land. Applications to BIA for fee to trust tribal land have been submitted for land in downtown Juneau, Ninilchik and Fort Yukon.
With BIA’s approval the land becomes “Indian country,” which is exempt from all state and municipal taxation; is exempt from all state and municipal regulation consistent with Alaska’s status under Public Law 280; and provides that tribal members and businesses receive all the usual state and municipal benefits, like sewer and water, police and fire protection, road maintenance, etc. Mutual agreements can be negotiated. Expect court cases. Waivers of immunity are essential. Taxes? Never.
In my opinion we have a serious problem. We have potentially one defined segment of Alaskan society which could, in downtown Juneau, run a tourist shop, a grocery store, a bingo parlor, etc. free of state or municipal taxation and regulation. Still the tribal business would receive all the state and municipal benefits. The tribal business would be in competition with all the other similar shops in town. Is this fair?
From my understanding the City and Borough of Juneau had no objection to approval of the BIA application back in 2017. In letters from the CBJ, I saw nothing that indicated concern about waivers of sovereign immunity or other financial agreements.
Similarly, problems related to potential tribal housing projects on lands within urban and suburban communities are troubling — with tribal member homes and businesses free of borough and municipal taxation and regulation.
The states of Washington and Oregon provide documents for general information on the subject. An Oregon State Bar Bulletin in October 2002, included “Legal Practice Tips, Indian Law Essentials, What every attorney should know,” by Gabe Galanda who has written other useful documents.
The state of Alaska should be providing similar information.
• Mary Bishop has been a resident of Fairbanks and Interior Alaska villages since 1961. Bishop has been learning about this issue since the mid-1980s. Columns, My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire. Have something to say? Here’s how to submit a letter to the editor or My Turn.
