FAQs on Lands into Trust Litigation
Since late 2022, Alaska has experienced two significant sea changes in federal Indian law.
The first occurred in November 2022 when the Assistant Secretary of the Bureau of Indian Affairs in the U.S. Department of the Interior (DOI) granted an application submitted by the Central Council of Tlingit and Haida Indians Tribe of Alaska to place a parcel of land in downtown Juneau into trust. This DOI action contradicted the agency’s longstanding interpretation that ANCSA limited the creation of new Indian Country with tribal territorial jurisdiction to the Metlakatla Indian Community, the one Alaska tribe who retained a reservation post-ANCSA
The second, which will be further addressed in a separate FAQ document, occurred in February 2024 when DOI partially revoked a 31-year-old Solicitor Opinion, which had concluded that Alaska tribes do not have territorial jurisdiction over Alaska Native allotments (land owned by individual Alaska Native persons). The Secretary now claims that the allotments owned by Alaska Native individuals are under the jurisdiction of nearby tribal governments.
The State disagrees with both of the new DOI positions, and in January 2024, the State filed a lawsuit to challenge the Secretary of the Interior’s November 2022 decision to take lands into trust. The State contends that Congress, and not a federal agency, should decide whether Alaska will have additional Indian Country with tribal territorial jurisdiction.
District Court Judge Sharon Gleason held that the Secretary still has the authority to take lands into trust in Alaska, but found the Secretary’s justification for taking this particular land into trust was arbitrary and capricious and must be vacated. All of the parties to that litigation have appealed Judge Gleason’s decision to the Ninth Circuit Court of Appeals, and that appeal is ongoing.
Below are answers to frequently asked questions about this litigation and its significance to Alaskans.
How are tribal lands taken into trust?
“Lands into trust” refers to lands owned by eligible tribes who have applied pursuant to the Indian Reorganization Act to have the Bureau of Indian Affairs (BIA) act as the trustee of those lands for the benefit of the tribe. For lands to be placed into trust, BIA determines whether an application satisfies its recently amended regulations; regulations that make it easier and simpler for tribes’ lands to be placed into trust. BIA then issues a decision approving or denying the tribe’s application. It is the State’s position, as discussed more in the subsequent answers, that BIA is prohibited by Congressional action from taking land into trust for all tribes in Alaska except the Metlakatla Indian Community.
If lands are taken into trust, does this mean there will be Indian reservations in Alaska?
Practically speaking, yes. Courts have held that tribal trust land is “Indian Country,” which makes it the functional equivalent of an Indian reservation. Generally, primary jurisdiction over land that is within an Indian reservation (or within Indian Country) rests with the tribe and the federal government, not with the State.
What is the significance of Alaska tribes’ lands being placed into trust and being treated as Indian Country?
It impacts which governmental entity (federal, state, tribal) has jurisdiction over the parcel. Jurisdiction can be defined as “the authority and responsibility to make and enforce laws.” Therefore, if a sovereign government has jurisdiction over land, that government can make and enforce laws over that land.
When ANCSA was passed in 1971, Congress provided that Alaska tribes’ claims would be settled without trusteeships, wardships, or reservations. The settlement ensured that the State of Alaska would not feature a patchwork of jurisdictions like in the Lower 48, with reservations where tribes can “make and enforce laws.” ANCSA ensured a simple jurisdictional template for Alaska; unlike the Lower 48, Alaska would avoid complicated litigation over issues like casino gaming and tobacco sales.
If a federal agency has the authority to take lands into trust, it also has the authority to change the jurisdictional framework--which government’s laws apply where--within Alaska. Where the federal government takes lands into trust, legal authority and responsibility for the lands shift away from the State and more authority and responsibility for the lands are placed with the tribes and federal government. By assuming lands-into-trust authority in Alaska, BIA introduces a more complicated jurisdictional framework that will yield jurisdictional questions and likely additional litigation as seen in the Lower 48, including questions about whether federal, state, and/or tribal laws apply to fish and game management, tobacco and alcohol sales, and gaming.
Why did the federal government decline to take lands into trust in Alaska for 46 years?
For 46 years (1971-2017), the federal government interpreted ANCSA the same way as the State: that ANCSA bars lands being placed into trust in Alaska because doing so would create “a reservation system or lengthy wardship or trusteeship” that ANCSA barred. The Act expressly revoked the few reservations that had been created in Alaska (except for the Annette Islands Reserve) and instead required the creation of more than 200 State-chartered village and regional corporations owned and operated by Alaska Native people as for-profit businesses subject to State law.
What is the major questions doctrine, and why does the State think it is important here?
In recent U.S. Supreme Court cases, the Court reaffirmed the major questions doctrine. Courts use the doctrine when interpreting federal statutes in certain contexts. Specifically, if there is a major change in a policy position that has substantial impacts on states and the public, the federal agency needs to show that its authority to make that policy change is clearly expressed in federal law. If it is not, then the agency lacks the authority to act, and whether the policy should change is a question for Congress to address. The State believes the major questions doctrine prohibits the complete reversal of the decades-long interpretation and implementation of federal Indian law in Alaska. This sort of policy call needs to be made by Congress and not federal bureaucrats when the decision would impact the entire landscape of territorial boundaries and governmental jurisdictions in Alaska.
What if the major questions doctrine does not apply here?
Even if the Court disagrees that this case presents a major question, it should still conclude that the Secretary’s lands-into-trust authority is limited to Metlakatla. This is because even without the “major questions doctrine,” courts do not interpret statutes in isolation. Instead, courts must consider context when interpreting the law. This includes reading a statutory provision in light of its place in the whole relevant body of law. Here, DOI must consider ANCSA and all of the post-ANCSA legislation where Congress recognized that Alaska lacked Indian country. Such legislation includes the 1991 ANCSA amendments, the Alaska Tribal Public Safety Empowerment Act, the Indian Land Consolidation Act and others. If the system that Congress created for Alaska is going to change, it must be Congress that makes the change.
When some call this action by the State “mean-spirited,” what is the Department of Law’s response?
The parties involved in this dispute have a legitimate disagreement about what the law means. And although we may disagree, that does not mean we have to be disagreeable—we can continue to respect one another and retain open dialogue during the process. The State filed this lawsuit to have the courts resolve this question for good, rather than allowing the federal government to keep changing its mind with each new presidential administration. Back and forth changing of the rules about something so consequential as governmental authority over lands is not fair to Alaska tribes or the State. That is why it is essential that the issue be definitively decided by the courts.