Bureau Of Indian Affairs Proposes Regulation To Allow Taking Of Land Into Trust For Tribes In Alaska

by Perkins Coie
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After decades of interpreting the Alaska Native Claims Settlement Act of 1971 (ANCSA) to preclude the federal government’s acquisition of land in trust for tribes in Alaska, on May 1, 2014, the Bureau of Indian Affairs announced a proposed rule to eliminate the “Alaska Exception” from its trust regulations. 79 Fed. Reg. 24,648 (May 1, 2014).  Under current regulations, tribes in Alaska do not have the ability to have land taken into trust in the way that Indian tribes located elsewhere in the United States do.  Due to an interpretation of ANCSA adopted by the Department of the Interior in 1980, the current regulations that implement the Department’s authority to acquire land in trust for Indian Tribes exclude land located in the State of Alaska, except when acquired for the Metlakatla Indian Community. 

ANCSA was adopted in 1971 to settle the claims of Native Indian, Aleut, and Eskimo populations in Alaska to their aboriginal lands — claims that had been unresolved since the United States purchased Alaska in 1867.  ANCSA extinguished these claims (encompassing almost the entire state), along with all Alaska reservations except the Metlakatla Reservation; in exchange, Native Alaskan regional and village corporations were established to hold settlement lands as private lands on behalf of their shareholders — individual Alaska natives.  Under the settlement, ANCSA regional and village corporations selected over 40 million acres of land in and around native villages in the state, in proportion to their enrolled populations. Village corporations own the surface rights to the lands they selected, but regional corporations own the subsurface rights of both their own selections and those of the village corporations.  As noted above, the Metlakatla Reservation was preserved, and as a result that tribe did not receive any ANCSA entitlements.  The Department of the Interior long interpreted ANCSA to prohibit its ability to acquire land in trust on behalf of Alaska tribes. 

Last year, a federal district court vacated the Alaska Exception in Akiachak Native Community. v. Salazar, 935 F. Supp. 2d 195 (D.D.C. 2013).  The court held that ANCSA did not repeal the Secretary’s authority to take lands into trust pursuant to another statute, section 5 of the Indian Reorganization Act of 1934 (IRA).  The court further held that the Alaska Exception impermissibly diminished the privileges and immunities of Alaska tribes relative to other tribes, in violation of the 1994 amendments to the IRA.  Although the case is currently on appeal before the D.C. Circuit, BIA announced the proposed change, stating that the elimination of the Alaska Exception “is essential to ensure cultural preservation, self-determination and self-governance and to advance the social and economic development of tribal communities.”

With over 200 tribes in Alaska, the proposed rule could have far-reaching consequences throughout the State.  The taking of land into trust creates a land base within which a tribe exercises sovereign governmental authority, and generally is not subject to state and local laws.  For example, on trust lands, tribes often establish their own taxation and judicial systems, can assert sovereign immunity for their actions, can assume the administration of many federal laws, especially in the environmental regulatory arena, and can engage in Indian gaming activities.  In addition, taking land into trust for Indian tribes has been a top priority of the Obama Administration, and Secretary of the Interior Sally Jewell recently announced a goal of taking 500,000 acres into trust by 2017, doubling the amount of land taken into trust for Indian tribes since 2009.  More broadly, the land selection rights established under ANCSA, and the assumption that there would be no trust lands, cleared the way for the enactment of the Alaska National Interest Lands Conservation Act and the establishment of over 155 million acres of conservation system unit lands.  Thus, by reopening the potential for trust lands, BIA's action threatens to disrupt the balance in land use and management achieved through these two landmark laws.  Finally, it is important to note that the authority to take land into trust also extends to any interest therein.  Tribes in Alaska own relatively little land, but may have interests or options in land which could be taken into trust. 

Comments on the proposed rule are due June 30, 2014.  Opportunities for comment will be limited, as the BIA has determined that the proposed rule is of an administrative, technical and procedural nature that will not have a significant effect and thus does not require review by the Office of Management and Budget or further analysis under the National Environmental Policy Act or other authorities requiring the analysis of impacts to small businesses and other entities, or to state, local or tribal governments.   

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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