February 4, 2023

On November 16, U.S. Department of the Interior Counsel released Opinion M-37076,1 Clarifying that the Secretary of the Interior has actual authority to purchase trust lands in the state of Alaska. The next day, the assistant secretary of the interior for Indian affairs announced the approval of a property for escrow for the Central Council of the Tlingit and Haida Indian Tribes of Alaska.

Land in Trust Land acquisitions, also known as fee-to-trust acquisitions, transfer a title of land to the federal government to hold in trust for the benefit of an individual or tribe. The establishment of a trustee status by the Home Office allows tribes to establish a land base for tribal communities, reclaim lands on or near their reservations, and clarify jurisdiction over their lands. Acquisition of fiduciary land is also important as it helps maximize a tribe’s eligibility for federal services and programs.

The acquisition on behalf of the Tlingit and Haida tribes is only the second trust acquisition in Alaska since the passage of the Alaska Native Claims Settlement Act (“ANCSA”) in 1971 and the first acquisition in five years. Notably, the Tlingit and Haida Native American tribes submitted this land as a trustee application back in 2009.

Understanding this momentous event requires a brief examination of the complex history of the Indian Reorganization Act (“IRA”) and the Alaska Indian Reorganization Act (“Alaska IRA”). Congress enacted the IRA in 1934 in part to allow the tribes to gain a greater degree of self-government, both political and economic, by permitting the preservation and development of Indian lands. Section 5 of the IRA generally authorizes the Minister to acquire land in the United States in trust. However, confusion over the Secretary’s ability to acquire land in trust specifically in Alaska has plagued the IRA’s interpretation from the start.

Originally, Section 5 authorized the Secretary to acquire land in trust for Native Americans and provided that Eskimos and other Alaska Natives are considered “Native Americans” for purposes of the Act. At the same time, however, the IRA was expressly not applicable to any US territory.

Two years later, in 1936, Congress enacted the Alaska IRA to correct these perceived contradictions within the IRA. Section 1 of the Alaska IRA extended the trust authority codified in IRA Section 5 to the territory of Alaska. However, when Alaska became a state in 1959, uncertainty arose again about the applicability of both the IRA and the Alaska IRA to the state of Alaska (as opposed to the territory of Alaska).

After decades of uncertainty, then-attorney Hilary C. Tompkins released a statement in January 2017 concluding that Section 5 of the IRA, as applied to Alaska by Section 1 of the Alaska IRA, empowered the Minister to land as a trust for the Alaska Natives.2 That clarification was short-lived, as in June 2018 then-attorney Daniel H. Jorjani temporarily withdrew the 2017 opinion while investigating the secretary’s authority over future Alaskan trust acquisitions.3

On Jan. 19, 2021, the day before President Biden’s inauguration, then-attorney Jorjani permanently withdrew the 2017 advisory and released a new advisory addressing the minister’s authority to acquire land in Alaska.4 The 2021 Opinion alleged that the 2017 Opinion’s legal conclusion that the Secretary has the power to take over land in trust in Alaska was flawed because it failed to consider the potential impact of the Statehood Act and the ANCSA on the Secretary’s authority addressed. For nearly two years, the 2021 Opinion effectively barred the Department from escrowing land in Alaska.

The most recent 2022 Opinion serves as a retraction of the 2021 Opinion. The 2022 Opinion concluded that Alaska’s statehood did not alter the applicability of the IRA to Alaska Natives and tribes. The 2022 Opinion further concluded that none of the concerns raised in the 2021 Opinion, principally the issue of the applicability of ANCSA, concern the scope of the Secretary’s authority to acquire land in trust under the IRA and the Alaska IRA.

Although the 2022 Statement is touted as a sign of great progress for the Alaskan tribes, it is important to note that the Statement, like the 2017 and 2021 Statements, is vulnerable to retraction. But at least for the foreseeable future, Alaskan tribes certainly have the opportunity to use the land in the confidence-building process to greatly expand their governmental, social, and economic development.

Footnotes:

  1. Robert T. Anderson, Attorney’s Opinion M-37076, “The Secretary’s Land into Trust Authority for Alaska Natives and Alaska Tribes Under the Indian Reorganization Act and the Alaska Indian Reorganization Act” (November 16, 2022) (hereinafter the “2022 Opinion”) .

  2. Hilary C. Tompkins, Solicitor Opinion M-37043, “Authority to Acquire Land into Trust in Alaska” (13 January 2017) (hereinafter the “2017 Opinion”).

  3. Daniel H. Jorjani, Attorney’s Opinion M-37053, “Retraction of Attorney’s Opinion M-37043, ‘Alaska Land in Trust Acquisition Authority’ Pending Review” (June 29, 2018).

  4. Daniel H. Jorjani, Solicitor Opinion M-37064, “Authority to Acquire Land in Trust in Alaska” (19 January 2021) (hereinafter the “2021 Opinion”).

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