On November 16, the United States Attorney for the Department of the Interior issued Opinion M-37076,1 clarifying that the Secretary of the Interior does in fact have authority to acquire trust land within the State of Alaska. The next day, the Assistant Secretary of the Interior for Indian Affairs announced the approval of the acquisition of trust land for the Central Council of the Tlingit and Haida Indian Tribes of Alaska.
Trust land acquisitions, also called “pay-by-trust” acquisitions, transfer title to land 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 land on or near their reservations, and clarify jurisdiction over their lands. The acquisition of trust land is also important because 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 acquisition of trust land 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 in a trust application in 2009.
Understanding this momentous occasion 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 provide 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 trust land in the U.S. However, confusion about the Secretary’s ability to acquire trust land specifically within Alaska has plagued IRA interpretation from the beginning. .
Originally, Section 5 authorized the Secretary to acquire trust land for Indians and provided that for purposes of the Act, Eskimos and other Alaskan aboriginal peoples are considered “Indians.” However, at the same time, the IRA was explicitly inapplicable to any US 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 Section 5 of the IRA to the Territory of Alaska. However, once Alaska became a state in 1959, uncertainty resurfaced 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, in January 2017, then-attorney Hilary C. Tompkins released an Opinion concluding that the Section 5 IRA, as applied to Alaska through the Section 1 Alaska IRA, authorized the Secretary to Accept Alaska Native Trust Land.two This clarification was short-lived because in June 2018, then-Attorney Daniel H. Jorjani temporarily withdrew the 2017 Opinion while investigating the Secretary’s authority for future Alaska trust acquisitions.3
On January 19, 2021, one day before President Biden’s inauguration, then-attorney Jorjani permanently withdrew the 2017 Opinion and published a new Opinion addressing the Secretary’s authority to acquire trust land in Alaska.4 The 2021 Opinion held that the 2017 Opinion’s legal conclusion that the Secretary is authorized to take trust land in Alaska was flawed because it did not address the possible effect of the Statehood Act and the ANCSA on the authority of the Secretary. For nearly two years, the 2021 Opinion effectively prevented the Department from taking trust land in Alaska.
The recent 2022 Opinion serves as a withdrawal from 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, primarily the issue of ANCSA’s applicability, affect the scope of the Secretary’s authority to acquire trust land under the IRA and the Alaska IRA.
Although the 2022 Opinion is touted as a sign of great progress for Alaskan tribes, it is important to note that the Opinion is vulnerable to withdrawal just like the 2017 and 2021 Opinions. But, at least for the foreseeable future , Alaska tribes certainly have an opportunity to use land in the trust acquisition process to greatly expand their governmental, social, and economic development.