On November 16, the Solicitor for the U.S. Department of the Interior issued Opinion M-37076,¹ clarifying that the Secretary of the Interior does in fact have authority to acquire land in trust within the State of Alaska. The next day, the Interior’s Assistant Secretary for Indian Affairs announced the approval of a land into trust acquisition for the Central Council of Tlingit and Haida Indian Tribes of Alaska.

Land into trust land acquisitions, also called “fee-to-trust” acquisitions, transfer a land title to the federal government to be held in trust for the benefit of an individual or tribe. By establishing trust status through the Department of the Interior, tribes can establish a land base for tribal communities, reacquire lands within or near their reservations, and clarify jurisdiction over their lands. Acquisition of land into trust is also important because it helps to maximize a tribe’s eligibility for federal services and programs.

The acquisition on behalf of the Tlingit and Haida Tribes is only the second land into 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 Indian Tribes submitted this land into trust application back in 2009.

Understanding this momentous occasion requires a brief examination of the complex history of the Indian Reorganization Act (“IRA”) and Alaska Indian Reorganization Act (“Alaska IRA”). Congress enacted the IRA in 1934 in part to establish an opportunity for tribes to assume a greater degree of self-government, both politically and economically, by allowing conservation and development of Indian lands. Section 5 of the IRA generally authorizes the Secretary to acquire land into trust across the U.S. However, confusion over the Secretary’s ability to acquire land into trust specifically within Alaska has plagued interpretation of the IRA from the beginning.

Originally, Section 5 authorized the Secretary to acquire land into trust for Indians and provided that for the purposes of the Act, Eskimos and other aboriginal people of Alaska are considered “Indians.” At the same time, however, the IRA was explicitly inapplicable to any U.S. Territory.

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

After decades of uncertainty, in January 2017, then-Solicitor Hilary C. Tompkins published an Opinion concluding that Section 5 of IRA, as applied to Alaska through Section 1 of the Alaska IRA, authorized the Secretary to accept land into trust for Alaska Natives.² This clarification was short-lived because in June 2018, then-Solicitor Daniel H. Jorjani temporarily withdrew the 2017 Opinion while he investigated the Secretary’s authority for future trust acquisitions in Alaska.³

On January 19, 2021, one day before President Biden’s inauguration, then-Solicitor Jorjani permanently withdrew the 2017 Opinion and published a new Opinion addressing the Secretary’s authority to acquire land into trust in Alaska.⁴ The 2021 Opinion contended that the 2017 Opinion’s legal conclusion that the Secretary is authorized to take land into trust in Alaska was flawed because it did not address the possible effect of the Statehood Act and the ANCSA upon the Secretary’s authority. For almost two years the 2021 Opinion effectively precluded the Department from taking any land into trust in Alaska.

The recent 2022 Opinion serves as a withdrawal 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, mainly the issue of ANCSA applicability, affects the scope of the Secretary’s authority to acquire land into trust under the IRA and Alaska IRA.

Though the 2022 Opinion is being touted as a sign of great progress for Alaskan tribes, it is important to note that the opinion is vulnerable to withdrawal just as the 2017 and 2021 Opinions. But, at least for the foreseeable future, Alaskan tribes certainly have an opportunity to use the land into trust acquisition process to greatly expand upon their government, social, and economic development.

Footnotes:

1. Robert T. Anderson, Solicitor 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 “2022 Opinion”).

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

3. Daniel H. Jorjani, Solicitor Opinion M-37053, “Withdrawal of Solicitor Opinion M-37043, ‘Authority to Acquire Land into Trust in Alaska’ Pending Review” (June 29, 2018).

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