A recent development in the saga of trust land acquisitions expresses the Department of Interior’s (the Department) intention to green-light pending and future requests for trust acquisitions in Alaska.
Earlier this year, on the last day of the outgoing Trump Administration, then-Solicitor of Interior Daniel Jorjani issued a memorandum (the “Jorjani Opinion”) permanently withdrawing a 2017 Solicitor Opinion[1] that concluded the Secretary of Interior was authorized to acquire land into trust in Alaska. The Jorjani Opinion contended that withdrawal of the 2017 Solicitor Opinion was necessary because an irreconcilable conflict existed between the Alaska Statehood Act and the Alaska Native Claims Settlement Act (ANCSA) on the one hand, and the Secretary’s authority to take land into trust under the Indian Reorganization Act (IRA), on the other. A more detailed analysis of the Jorjani Opinion is available here.
Subsequently, on April 27, 2021, Principal Deputy Solicitor Anderson withdrew the Jorjani Opinion because it failed to acknowledge that the so-called Alaska Exception from land into trust regulations was declared unlawful by the federal district court for the District of Columbia in Akiachak Native Community v. Salazar[2], and because it did not attempt to “engage, explain, or attempt to reconcile” the conflict presented by its conclusion that the Secretary lacked authority to make trust acquisitions in Alaska with existing Department regulations authorizing trust acquisitions by the Secretary in Alaska[3]. The referenced regulations, published in the Federal Register in 2014 after the conclusion of the Akiachak lawsuit and extensive notice and comment rulemaking, explain that “the Department has ongoing statutory authority to take land into trust in Alaska under Section 5 of the IRA. This authority, explicitly granted by Congress, has never been revoked. Subsequent enactment of ANCSA and [FLPMA] have provided additional context for the exercise of such authority, but no legal impediment exits to delete the Alaska Exception from the land-into-trust regulations.”[4]
The memorandum concludes by announcing that over the next 90 days, the Department will engage in “meaningful and robust” consultation on the Secretary’s land into trust authority in Alaska, and that when the consultation period is over, the Department will begin processing trust applications.
This memorandum thus announces a return to prior Department policy acknowledging the authority of the Secretary to acquire trust land in Alaska. A practical effect of this development will be the Department’s conducting extensive consultation and resumption of processing Alaska trust acquisition applications after an almost four-year hiatus.
This development could also implicate ANCs’ ability to participate in this process. While the recent memorandum explicitly states its intention to hold consultation with “Tribal Nations” consistent with President Biden’s January 26, 2021 Memorandum on Tribal Consultation and Strengthening Nation to Nation Relationships[5], it does not clearly indicate that it also intends to hold consultations with village or regional ANCs.
This is concerning given the unique nature of land ownership in Alaska. ANCs hold fee simple title to millions of acres of surface and subsurface estates throughout Alaska. ANCs whose ownership interests may be affected by a decision to acquire trust land should have an opportunity to express their concerns about how such acquisitions could affect their ownership interest and to suggest ways to address those concerns through improved regulations.
It is also concerning given that in 2012, the Department implemented a Policy on Consultation with ANCSA Corporations that requires the Department to initiate consultation with ANCs whenever it takes “any Departmental [action, including] regulation, rulemaking, policy, guidance, legislative proposal, grant funding formula changes, or operational activity that may have a substantial direct effect on an ANCSA corporation, including (1) any activity that may substantially affect ANCSA Corporation land, water areas, or resources, and (2) any activity that may impact the ability of an ANCSA Corporation to participate in Departmental programs for which it qualifies.”[6] Trust acquisitions fall squarely within the scope of Department action requiring consultation with ANCs.
Given the significant ANC interests at stake, and the Department’s own policy, the Department should clarify whether it intends to provide consultation opportunities to ANCs as well as tribes with respect to the Secretary’s authority to make trust acquisitions in Alaska.
[1] Available at https://www.doi.gov/sites/doi.gov/files/uploads/m-37043.pdf
[2] See 935 F. Supp. 2d 195 (D.D.C. 2013).
[3] See 25 C.F.R. § 151.11.
[4] Land Acquisitions in the State of Alaska, 79 Fed. Reg. 24,648 (May 1, 2014).
[6] Available at https://www.fws.gov/r7/external/native_american/doi_ancsa_policy.pdf