September 01, 2017

Legal Developments: Trust Lands in Alaska

by Heather Kendall Miller

Federal officials often draw from their experience of Indians on reservations in the continental United States and mistakenly assume that the legal principles applicable there do not apply in Alaska. This is due in large part to the perception that Alaska’s history is somehow “different,” and that the 1971 Alaska Native Claims Settlement Act (ANCSA) altered the legal principles that apply to federally recognized tribes in Alaska.

But in fact and law, federally recognized tribes in Alaska have the same legal status as other federally recognized tribes singled out as political entities in the Commerce Clause of the United States Constitution. Akiachak Native Community v. Salazar, 935 F. Supp. 2d 195 (D.D.C. 2013).

Lands into Trust

Prior to enactment of ANCSA, Congress adopted statutes that imposed trust responsibilities on the Secretary of the Interior (Secretary) over lands in Alaska for Alaska natives, including statutory obligations over Alaska native allotments, fiduciary responsibilities over restricted native town sites, general trust authority over India Reorganization Act (IRA) tribal reserves, and specific responsibilities related to leases on executive order reserves.

In 1934, Congress, in section 5 of the IRA, authorized the Secretary to take real Legal Developments: Trust Lands in Alaska property into trust on behalf of tribes and individual Indians. The IRA was amended to apply to the Territory of Alaska in 1936. The 1936 amendments gave the Secretary authority to designate certain lands in Alaska as reservations and take lands into trust. A total of six reservations were created in Alaska pursuant to the Act.

Congress enacted ANCSA in 1971, revoking all existing reservations in Alaska (except for the Metlakatla Reserve). Importantly, however, ANCSA did not repeal any portion of the IRA or any portion of its 1936 amendments.

In 1980, the U.S. Department of the Interior, for the first time, promulgated a regulatory process to make fee-to-trust transactions more uniform. Those regulations created the Alaska Exception, expressly excluding acquisition of trust land for tribes or tribal members situated in Alaska, other than Metlakatla, based on a 1978 Solicitor’s Opinion, stating to do so would be an abuse of discretion.

Litigation

Litigation commenced in 2006 to challenge the Alaska Exception. The plaintiff tribes argued that this exclusion of Alaska Natives—and only Alaska Natives—from the land into trust application process was void under the IRA section 476(g), which prohibits the Secretary from classifying, enhancing, or diminishing the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes. The State of Alaska intervened to argue that ANCSA required the differential treatment. The Secretary defended the regulation by reference to ANCSA and argued that while ANCSA did not revoke secretarial authority to take lands into trust, it supported the policy and practice of the Secretary’s discretion to exclude Alaska tribes from the land into trust regulatory process.

Decision

On March 31, 2013, Judge Rudolph Contreras granted summary judgment to the plaintiff tribes. The court rejected the State’s argument that ANCSA’s extinguishment of aboriginal claims and Congress’s declaration of purpose implicitly extinguished the Secretary’s authority to take lands into trust in Alaska, and held that the Secretary was conferred authority to take land into trust in Alaska in 1936 with the IRA’s application to Alaska, and that authority had not been revoked by ANCSA or any other legislative action.

Having established that ANCSA did not revoke the Secretary’s authority to take Alaska lands into trust, the court next examined the legality of the Alaska Exception and found it was inconsistent with the congressional mandate that the Secretary not diminish the privileges available to tribes relative to the “privileges . . . available to all other federally recognized tribes by virtue of their status as Indian tribes.” 25 U.S.C. § 476(g).

BIA Revision of Its Regulations

During the pendency of Alaska’s appeal, the Secretary repealed the Alaska Exception. After notice and comment, the Secretary’s repeal of the regulation went into effect in January 2015. Alaska requested, and was granted, an injunction blocking any acquisition of trust lands pending the resolution of its appeal.

In July 2016, the Court of Appeals ruled that Alaska’s appeal was “moot for lack of a live controversy” because the challenged regulation no longer existed. With the district court injunction lifted, the Secretary gave notice of her intent to acquire approximately 1 acre of land underlying the Craig Tribal Association tribal office. This is the first parcel acquired under the 1936 Alaska IRA since the 1980 Alaska Exception was promulgated.

Heather Kendall Miller is a senior staff attorney with the Native American Rights Fund in Anchorage, Alaska.

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