On February 4, the State of Alaska filed a lawsuit in the federal district court of Washington D.C. to obtain a ruling that former President Joe Biden’s administration’s last minute moves to allow Indian casinos in Alaska was unlawful, that the Eklutna casino is unlawful, and to halt the issuance of new casino authorizations in Alaska going forward.

In its papers, the State of Alaska notified the D.C. court that a related case was already underway in Alaska. That case—-Hollis v. Avery—-was filed by individuals who owned property near the site of Eklutna casino. 

Why did the State of Alaska file its case in Washington D.C. court? There are a few possibilities.

The first possibility is that the State is hoping that a 2021 decision in D.C. court will help its current case. In 2021, federal Judge Dabney Friedrich ruled against Eklutna in a lawsuit it brought against the U.S. Department of Interior for not allowing Eklutna to use the Ondola Allotment (the real property where the Eklutna casino sits) for gambling. Judge Friedrich reasoned that Interior had properly applied its internal legal guidance that was, at that time, a 1993 legal opinion by then-Interior Solicitor Thomas Sansonetti.  

Sansonetti was tasked by the first President Bush to help develop the federal government’s position as to tribal government powers in Alaska. Sansonetti concluded that Congress decisively eliminated village jurisdiction over village and Native corporation lands and non-village members when it passed the Alaska Native Claims Settlement Act (ANCSA) in 1971. Under ANCSA, all Alaska Native aboriginal land claims were extinguished in exchange for the federal government transferring 44 million acres of land and $962.5 million dollars (worth $7.5 billion in current dollars) to Alaska Native Corporations. 

Sansonetti concluded that almost all evidence pointed to Congress intending for ANCSA to not replicate the lower 48 model of a patchwork of federal, tribal and state government authority over lands within a state. Specifically, as to Alaska Native allotments (the Ondola parcel where the Eklutna casino is located is such an allotment) Sansonetti noted that these parcels of land were not carved out of any reservation, were issued even if the applicant was not a member of a federally recognized tribe, and were legally designated as the “homestead of of the allottee and his heirs.”

Given these realities, Sansonetti concluded “there is little or no basis for an Alaska village claiming territorial jurisdiction over an Alaska Native allotment.” Sansonetti’s reasoning applied to the current situation would mean that there is little to no basis for the Native Village of Eklutna to claim territorial jurisdiction over the Ondola allotment, including little to no basis for Eklutna to claim that the Ondola allotment was subject to tribal jurisdiction and Indian gaming. 

Judge Friedrich agreed with Sansonetti’s interpretation of ANCSA and pointed to other federal courts (the D.C. Circuit, 9th Circuit and Alaska’s federal court) that had likewise given favorable treatment to Sansonetti’s reading of ANCSA, native allotments, and tribal authority. It seems likely that the State of Alaska may hope that Judge Friedrich or another D.C. federal judge will read the 2021 decision rejecting Eklutna’s request it be allowed to build a casino as decisive to its recent construction of a casino in the same place.

In the final year of the Biden Presidency, the U.S. Department of Interior (DOI) issued a new interpretation of tribal authority and native allotments. That new interpretation was issued by now-former DOI Solicitor Robert Anderson, who has a long history of advocating for tribal authority in Alaska. Anderson lived in Anchorage for a period of time and was an attorney for the Native American Rights Fund, a nonprofit group that focuses on representing Native American, Native Alaska, and Native Hawaiian causes. Anderson withdrew the Sansonetti interpretation and reasoned that, under certain circumstances, tribes in Alaska could exercise tribal jurisdiction over native allotments granted to individual Native Alaskans.

Back to the current lawsuit. Given this background, the State of Alaska may have filed in Washington D.C. hoping that whichever judge is assigned to that case will turn to Judge Friedrich’s 2021 ruling and rule that Eklutna cannot exercise tribal jurisdiction over the Ondola allotment, thereby making it unlawful to have a tribal casino there. But that argument does not take into account that Friedrich’s opinion looked to Interior’s position based on the Sansonetti opinion that has since been rescinded.

Another reason the State may have filed in D.C. is the lack of active federal judges in Alaska. The Hollis case filed by property owners neighboring the casino site was filed nearly two months ago on December 16. Yet, to date, no judge is presiding over the case. Two of Alaska’s three federal judge spots are vacant. One from the resignation of Judge Joshua Kindred last summer and the other from the retirement of Judge Timothy Burgess to senior status at the end of 2021.

When the Hollis lawsuit was filed, it was originally assigned to Judge Hezekiah Holland, a long-serving federal judge (on senior status since 2001) who was law partners with the late Senator Ted Stevens and presided over the Exxon Valdez trial. But Judge Holland immediately recused himself, transferring the case to Judge Sharon Gleason. Fun fact: Holland is the father of freshman Representative Ky Holland (I – Anchorage). On January 29, Judge Gleason recused herself, leaving the case without a judge, as shown below: 

Federal judges are not required to disclose the reason for recusal and it is unknown why Judge Holland then Judge Gleason recused themselves. The State could believe that the Alaska federal court lacks the judicial personnel to timely resolve this dispute and filed in D.C. as an alternative.

This is a developing story and the Alaska Landmine will be following these lawsuits as they proceed.