In the final hours of the Trump Administration, the Solicitor of the Department of the Interior (“the Department”) issued new agency guidance reversing the Department’s position on the authority of the Secretary of the Department (“the Secretary”) to take land into trust in Alaska.[1] This summary briefly analyzes the Department’s most recent position and the legal and practical effects of that decision.
On January 13, 2017, then-Solicitor of the Department, Hilary C. Tompkins, published an Opinion concluding that Section 5 of the Indian Reorganization Act (“IRA”), as applied to Alaska through Section 1 of the Alaska Indian Reorganization Act (“Alaska IRA”), authorized the Secretary to accept land into trust for Alaska Natives.[2] The 2017 Opinion was the culmination of a lengthy legal challenge[3] and subsequent rule-making[4] process to amend a Department regulation[5] that prohibited the Secretary from taking land into trust in Alaska.
In June 2018, Solicitor Daniel H. Jorjani temporarily withdrew the 2017 Opinion[6] and, for the next eight months, proceeded to conduct consultations[7] with Alaska Native tribes and Alaska Native corporations (ANCs) and solicit public comments[8] regarding the authority for future trust acquisitions in Alaska, and the suitability for Alaska of existing regulations governing fee-to-trust applications.
On January 19, 2021, one day before the inauguration of President Biden, Solicitor Jorjani permanently withdrew the 2017 Opinion and published a new Opinion addressing the Secretary’s authority to acquire land into trust in Alaska.[9] The 2021 Opinion contends that the 2017 Opinion’s legal conclusion that the Secretary is authorized to take land into trust in Alaska is flawed because it did not address the source of the Secretary’s authority or the possible effect of the Statehood Act and the Alaska Native Claims Settlement Act (“ANCSA”), upon that authority.
Understanding the 2021 Opinion’s conclusion with respect to the Statehood Act requires briefly examining the complex history of both the IRA and the Alaska IRA. Congress enacted the IRA in 1934 in order to establish “the machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.”[10] IRA Section 5 authorized the Secretary to acquire land into trust for Indians,[11] and provided that “for the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians.”[12] At the same time, the IRA was explicitly inapplicable to any U.S. Territory.[13] But, a section of the IRA made certain provisions of the statute applicable to the Territory of Alaska.[14] IRA Section 5’s authority to make trust acquisitions in Alaska was not one of those provisions. Two years later in 1936, Congress enacted the Alaska IRA to correct perceived deficiencies with the IRA.[15] Section 1 of the Alaska IRA extended the trust authority codified in IRA Section 5 to the Territory of Alaska.
In 1958, Congress enacted the Statehood Act, the statutory basis by which Alaska would become the 49th state.[16] The 2021 Opinion suggests that because Section 1 of the Alaska IRA only extended the Secretary’s authority to take land into trust in Alaska to the Territory of Alaska – not to the newly admitted State of Alaska – it is unclear whether the Alaska IRA remains the source of authority for application of IRA Section 5, as the 2017 Opinion concluded. The 2021 Opinion suggests that it would be reasonable to conclude that the applicability of both the IRA and the Alaska IRA was limited to the Territory of Alaska, and that Alaska’s admission to the United States in 1959 terminated the applicability of both of those statutes to Alaska – undermining the source of the Secretary’s authority to take land into trust in Alaska upon which the 2017 Opinion relied.
With respect to ANCSA, the 2021 Opinion argues that despite the fact that “[a]ll previous opinions considering the Secretary’s trust acquisition authority in Alaska have concluded that IRA Section 5 was not repealed [by ANCSA] by implication…ANCSA may present the rare case where an analysis of whether the statute was intended to occupy the field is essential to address whether Congress impliedly repealed the Secretary’s discretionary authority to accept land in trust in Alaska.”[17] The 2021 Opinion suggests that ANCSA impliedly repealed IRA Section 5 because it irreconcilably conflicts with Section 5, because Congress intended ANCSA to be a substitute for the IRA, and because ANCSA’s comprehensive statutory scheme left no room for the Secretary to create trust land in Alaska outside of the settlement achieved by ANCSA.
The 2021 Opinion also asserts that there are additional plausible interpretations of IRA and the Alaska IRA provisions concerning who is eligible to ask the Secretary to take land into trust that were not explored by and which potentially implicate the validity of the 2017 Opinion. It concludes that “absent [] clear direction [from Congress], a determination by the Secretary to accept land in trust in Alaska would likely be subject to protracted litigation and a credible Administrative Procedures Act (APA) challenge asserting that the Department’s actions were ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’”[18]
The practical effect of the 2021 Opinion will be to further delay the processing of all pending applications to take land into trust in Alaska. Because the Department has not amended the regulation that permits eligible applicants to file applications to take land into trust in Alaska, it is unlikely that applications filed after the issuance of the 2021 Opinion will be automatically rejected.
With respect to the legal effect of the 2021 Opinion, unless and until it is either withdrawn, directly challenged in a lawsuit and declared invalid by a court, or addressed by Congress through legislation, the legal interpretation advanced by the 2021 Opinion will likely operate to preclude the Department from taking land into trust in Alaska.
Even though Solicitor Opinions are not final agency actions, they are not immune from legal challenges. The U.S. Supreme Court has not conclusively established the level of deference owed to a Solicitor’s Opinion subject to a direct legal challenge. Some federal courts have afforded Solicitor Opinion’s a higher level of deference,[19] thus making it more difficult to challenge the validity of the Opinion, where an agency’s construction of a statute has gone through a notice and comment period and is not arbitrary, capricious, or manifestly contrary to the statute.[20] In other instances, where a Solicitor Opinion has perhaps not gone through formal rulemaking, a court will only defer to that Opinion’s legal interpretations and conclusions to the extent they have the power to persuade.[21] Whether a Solicitor’s Opinion has the power to persuade depends upon the agency’s expertise, the care it took in reaching its conclusions, the formality with which it promulgates its interpretations.[22]
In a recent legal challenge to another Solicitor’s Opinion authored by Solicitor Jorjani, the U.S. District Court for the Southern District of New York declined to give the Opinion any deference and vacated it after finding that it violated the Administrative Procedures Act.[23] The Opinion promulgated a new interpretation of the Migratory Bird Treaty Act (MBTA) and concluded that the MBTA did not prohibit incidental takes (i.e., deaths) of birds listed as protected under the MBTA. This was a significant departure from decades-old Department guidance to the contrary – and a distinct nod to business-friendly special interest groups who had lobbied for the change due to hefty monetary penalties issued for incidental takes caused by environmental hazards.
The Court determined that the Opinion lacked the power to persuade because it was a sudden departure from long-held agency positions backed by over 40 years of consistent enforcement practices; it lacked notice and comment or other protective rulemaking procedures; the Opinion’s claim to agency expertise was questionable given the lack of evidence of input from the agency tasked with enforcing the MBTA; there was no evidence demonstrating that the Opinion benefitted from knowledge gained through practice, experience, or the agency’s familiarity with administrative need; and because the Opinion directly contradicted the purpose of MBTA – the protection of birds.
There are significant questions about the soundness and persuasiveness of the legal interpretations advanced and legal conclusions reached by the 2021 Opinion. It acknowledges that it departs from long-standing Department precedent.[24] It fails to answer any of the allegedly “new” questions that it raises about the source of the Secretary’s authority to take land into trust in Alaska. It disregards the fact that the 2017 Opinion was the culmination of a years-long Department legal review and formal rulemaking process. And, it uses legislative history and legislative materials to create ambiguity, not resolve it.[25] However, the Department went through a lengthy notice and comment period prior to issuing the 2021 Opinion, conducted multiple consultations with Alaska Native tribes and ANCs, and received at least 22 comments addressing the acquisition of trust land in Alaska.[26] Given these consultations and notice and comment periods, a court may apply a higher level of deference to the 2021 Opinion’s conclusions in the event that it is subject to a direct legal challenge. Until the 2021 Opinion is withdrawn or otherwise rendered obsolete, applicants should expect continued delays with respect to, if not outright denials of, pending applications for trust acquisitions in Alaska.
[1] See 25 C.F.R. 151.2(d). When the Department acquires land into trust, it holds title to those lands for an individual Indian or tribe, and the land is thus subject to certain restrictions concerning local taxation, development, and alienation. Primary civil and criminal jurisdiction on trust lands is typically exercised by the Indian tribe for which the Department is holding the lands in trust, not the state or municipality where those lands are located.
[2] Hilary C. Tompkins, Solicitor Opinion M-37043, “Authority to Acquire Land into Trust in Alaska” (January 13, 2017)(hereinafter “2017 Opinion”).
[3] See Akiachak Native Comty v. Jewell, 935 F.Supp.2d 195 (D.D.C 2013), vacated, 827 F.3d 100 (D.C. Cir. 2016).
[4] See Proposed Rule, Land Acquisitions in the State of Alaska, 79 Fed. Ref. 24648 (May 1, 2014); Final Rule, Land Acquisition in the State of Alaska, 79 Fed. Reg. 76888 (Dec. 23, 2014).
[5] See 25 C.F.R. 151.11 (1980).
[6] 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).
[7] See “Dear Tribal Leader” and “Dear CEO” letters distributed by the Department of the Interior to federally-recognized tribes and ANC CEOs scheduling consultations, July 2, 2018, www.indianaffairs.gov/sites/bia.gov/files/assets/as-ia/raca/pdf/7.2.18.DTLL-AK-LT_508.pdf www.indianaffairs.gov/sites/bia.gov/files/assets/as-ia/raca/pdf/7.2.18.CEO-AK-LT_508.pdf (last visited February 1, 2021).
[8] See Comments Responding to DOI Solicitation, available at www.indianaffairs.gov/as-ia/raca/regulations-development-andor-under-review/land-trust-alaska (last visited February 1, 2021).
[9] Daniel H. Jorjani, Solicitor Opinion M-37064, “Authority to Acquire Land in Trust in Alaska” (January 19, 2021)(hereinafter “2021 Opinion”).
[10] Pub. L. No. 73-383, 48 Stat. 984 (1934); see also Morton v. Mancari, 417 U.S. 535, 542 (1974).
[11] IRA Section 5.
[12] IRA Section 19.
[13] IRA Section 13.
[14] IRA Sections 9, 10, 11, 12, and 16 were made applicable to Alaska by IRA Sec. 13.
[15] Pub. L No. 74-538, 49 Stat. 1250, § 1 (1936).
[16] See Pub. L. No. 85-508, 72 Stat. 339 (July 7, 1958).
[17] 2021 Opinion at 20-21.
[18] Id. at 34.
[19] See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984).
[20] See Southern Ute Indian Tribe v. Amoco Produc. Co., 119 F.3d 816 (10th Cir. 1997).
[21] See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
[22] See U.S. v. Mead Corp., 533 U.S. 218, 228, 234-35 (2001).
[23] Nat. Res. Def. Council, Inc. v. U.S. Dep’t of the Interior, No. 18-CV-4596 (VEC), 2020 WL 4605235 (S.D.N.Y. Aug. 11, 2020).
[24] See 2021 Opinion at 8 (noting that in 2001, Solicitor John Leshy rescinded a memorandum authorized by Thomas M. Fredericks, Associate Solicitor of Indian Affairs, in 1978 after calling its legal conclusions into doubt. The “Fredericks Memorandum” had concluded that accepting a request from the Arctic Village and the Native Village of Venetie to take their former reservations into trust would be an abuse of the Secretary’s discretion because of ANCSA’s declaration that its settlement “should be accomplished…without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges…”); see also 2021 Opinion at 17 (acknowledging that the conclusion about the effect of the Statehood Act upon the original IRA and the Alaska IRA “represents a departure from previous Department statements on this issue,” as both the Fredericks Memorandum and guidance issued by Solicitor John Leshy in 2001 concluded that Section 1 of the Alaska IRA remained in effect after the enactment of FLPMA and ANCSA, respectively).
[25] See Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1750 (2020) (“Legislative history and extratextual materials on which Interior relies may only be used to “clear up ambiguity, not create it.”), quoting Milner v. Dept of Navy, 562 U.S. 562, 574 (2011).
[26] The majority of these comments supported the Secretary’s continued authority to make trust acquisitions in Alaska. See supra, note. 8.
