By Patrick Sullivan

The question of whether Alaska Natives may place land in the same federal trust status as Indian tribes in the lower 48 states was widely thought to have been resolved but is now before the Court of Appeals for the District of Columbia Circuit. The issue in Alaska v. Akiachak Native Community, et al. is whether the Alaska Native Claims Settlement Act (“ANCSA”), signed into law by President Richard M. Nixon in 1971, withdrew the Secretary of the Interior’s authority to place Alaskan land in trust under Section 5 of the Indian Reorganization Act of 1934 (“IRA”).

The Secretary of the Interior has had the authority to place land into federal trust status for Indians since 1934 and to proclaim those lands to be Indian reservations. Subsequent amendments made the IRA applicable to Alaskan lands, and the Secretary proceeded to accept Alaskan land in trust and create several reservations there. Alaskan land was also held by Alaska Natives in allotment status and in reservations expressly created by Congress, including the Annette Island Reserve, which was set aside by Congress in the Act of March 3, 1891.

The 1968 discovery of enormous oil reserves in Alaska’s Prudhoe Bay and the demand for a pipeline across the state to deliver that oil to the U.S. market required the settlement of pending Alaska Native land claims along the route. To settle those claims, Congress passed ANCSA in 1971. ANCSA was the product of a negotiated settlement between the federal government, the State of Alaska, and the Alaska Federation of Natives (“AFN”), an umbrella group representing the Alaska tribes. AFN had made clear that it was not interested in the traditional Indian reservation model adopted in the lower 48 states. The legislation created a new model adopted for settling native land claims throughout Alaska without creating new Indian reservations. ANCSA expressly extinguished all claims of aboriginal title in Alaska, aboriginal hunting and fishing claims, and any “claims against the United States, the State, and all other persons that are based on…any statute or treaty of the United States relating to Native use and occupancy.”

ANCSA dissolved the existing allotments and all but one of the reservations, compensated Alaska Natives with $962.5 million in state and federal funds, and conveyed 44 million acres of Alaskan land to “Alaska Native Corporations” (“ANCs”). Alaska Natives became shareholders in the ANCs instead of receiving money and land directly. Many of the ANCs continue to generate substantial dividends and employment opportunities for their shareholders.

In 1978, Associate Solicitor-Indian Affairs Thomas Fredericks issued an opinion declaring that acceptance of trust land in Alaska would be an abuse of secretarial discretion, and in 1980, the Department promulgated the regulation known as the “Alaska Exception.” That regulation provided that the Department’s land-to-trust regulations “do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or its members.”

Akiachak Lawsuit and Department of the Interior’s Reversal

In 2007, a group of Alaska tribes including the Akiachak Native Community sued the Secretary and Department of the Interior in the federal D.C. District Court arguing that the Alaska Exception illegally discriminated against Alaska Natives by prohibiting them from placing land in trust status. In March 2013, following years of litigation, the District Court agreed with the Tribes and held the Alaska Exception to be void and unenforceable because it violated a law prohibiting regulations that diminish the privileges available to Alaska Natives relative to the privileges available to all other federally recognized tribes.

In December 2014, Assistant Secretary Kevin Washburn formally revoked the Alaska Exception. Washburn’s statement accompanying the revocation declared that ANCSA did not prohibit trust land acquisitions in Alaska under the IRA and that “the shocking and dire state of public safety” in Alaska Native communities could be improved by allowing land to be placed in trust status, thereby allowing Alaska Natives the opportunity to exercise criminal jurisdiction over those lands. The revocation was not legally challenged and became effective on January 22, 2015.

Alaska’s Appeal

Despite the legal finalization of the Secretary’s revocation of the Alaska Exception, the State appealed the District Court’s decision and asked for a declaration that ANCSA prohibits the creation of new trust land and Indian Country in Alaska. The Alaska Native parties and the Secretary have moved to dismiss the State’s appeal on the basis that ANCSA never repealed the Secretary’s IRA authority to place Alaskan land in trust and that the Bureau of Indian Affairs’ repeal of the Alaska Exception rendered the controversy moot.

In its appeal, the State characterized the revocation of the Alaska Exception as nothing more than an “administrative end-run around ANCSA, facilitating the re-creation of trust land in Alaska after Congress expressly revoked it.” The State further argued that Congress never granted the Secretary the authority to reverse the deal struck between the State and the Tribes through ANCSA.

Implications of the D.C. Circuit Decision

The pending decision may have far-reaching consequences in Indian Country and may fundamentally alter the rights of Alaska Natives. In its 1998 Alaska v. Native Village of Venetie Tribal Government decision, the United States Supreme Court struck down a tribal tax imposed on non-tribal members contracted to build a school on land owned by the Native Village of Venetie, a former reservation which has been dissolved through ANCSA. The Court held that, because the Village was not “Indian Country,” the Tribe could not impose any tax on the land.

Should the D.C. Circuit affirm the District Court and open Alaskan lands to trust status, key issues ostensibly decided in the Venetie case would be reopened, resulting in a likely contentious struggle between the State of Alaska and its large population of Alaska Natives to define the jurisdictional boundaries and taxability of those lands, as well as rights to conduct gaming and regulate natural resources development. Such an outcome would almost certainly prompt the State to propose federal legislation preventing the Department from accepting Alaskan land in trust. With those issues at stake, the D.C. Circuit’s resolution of the case is being closely watched by Alaska Native communities and their neighbors alike.