Placing Land Into Trust Will Make Alaska Safer for Rural Tribes

Geoff Strommer

The Department of the Interior recently proposed to amend the Department’s land-into-trust regulations, found at 25 C.F.R. Part 151, that currently exclude from the scope of the regulations, with one exception (Metlakatla), land acquisitions in trust in the State of Alaska. The proposed amendment will allow tribes in Alaska to place land into trust. This proposal should be approved and implemented as soon as possible.

The last time that land-into-trust regulations were promulgated, substantially impacting rights in Alaska, the so-called “Alaska exception” was inserted into the final rule found in 25 C.F.R. § 151.1 with no notice or opportunity to comment, in 1980. Since that time, the DOI has treated this “Alaska exception” as a de facto bar on the Department’s authority under the Indian Reorganization Act (IRA) to take lands into trust for tribes in Alaska. The recent decision in the Akiachak case affirmed that the Secretary of the Interior retained authority under Section 5 of the IRA to take lands into trust in Alaska.

The proposed rule change is long overdue for many reasons.

In the lower 48, Indian tribes commonly use the land-into-trust process to reconsolidate ancestral homelands; create unique opportunities for federal/tribal housing programs; protect sensitive environmental areas and sacred cultural properties; and otherwise expand tribal jurisdiction consistent with the era of self-determination and self-governance that marks the times in which we now live. The Department itself acknowledges substantial benefits to expanding tribal jurisdiction in Alaska. The Proposed Rule would allow tribes to submit land-into-trust applications to the Department, while maintaining the substantial discretion afforded the Department in the regulations to accept or deny those applications.

In Alaska, the prospect of Tribal communities gaining jurisdiction over lands in their communities brings particular hope to a problem that has vexed policy makers for decades: how to bring law and order to rural and remote tribal communities.

Congress recently made a substantial, multiyear, bipartisan investment in the Indian Law and Order Commission, which issued a ground-breaking Report in November 2013. The Commission was charged with the responsibility to examine criminal justice systems in Indian Country, and its report, A Roadmap For Making Native America Safer: Report to the President and Congress of the United States, contained an entire chapter devoted to Alaska. The Commission stated that “a number of strong arguments can be made that [Alaska fee] land may be taken into trust and treated as Indian country” and “[n]othing in ANCSA expressly barred the treatment of these former [Alaska] reservation and other Tribal fee lands as Indian country.” The Commission specifically focused on the question of placement of lands into trust by Alaska tribes and strongly recommended allowing lands to be placed in trust for Alaska Natives as a means of creating the jurisdictional underpinnings for a better functioning criminal justice system.

As the Department itself notes in the Proposed Rule, when examining the Commission’s Report: “The basic thrust of the Indian Law and Order Commission’s recommendation is that the state of public safety for Alaska Natives, especially for Native women who suffer high rates of domestic abuse, sexual violence and other offenses, is unacceptable; providing trust lands in Alaska in appropriate circumstances would provide additional authority for Native governments to be better partners with the State of Alaska to address these problems. In sum, the Commission concludes that trust land in Alaska could help improve the lives of Indian people by creating safer communities.”

In addition to the Commission, the Department itself examined this issue in December 2013 in its Report of the Commission on Indian Trust Administration and Reform. The Department, like the Indian Law and Order Commission, recommended allowing Alaska Native tribes to have tribally owned fee simple land taken into trust.

The proposed rule allowing tribes in Alaska to apply for the placement of land into trust is consistent with the IRA and federal Indian law and is good policy. This is a game-changing opportunity that offers Tribes in Alaska the ability to make a meaningful difference for people who live in their communities.

Geoff Strommer, a partner at Hobbs Straus Dean & Walker LLP, is the author, with Steve Osborne, of Indian Country and the Nature and Scope of Tribal Self-Government in Alaska, 22 Alaska L. Rev. 1 (2005).

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azpark's picture
Below are comments I sent to the BIA I am opposed to this rule change for several reasons as herein described 1) I question the timing and propriety of this rule change given that the Akiachak case is currently on appeal in the DC circuit. Is the Department just trying to get out in front of the issue? What happens if the DC circuit reverses and finds the Alaska exception doesn’t violate any law? 2) I believe the Department and the court take a very myopic view of the issue. ANSCA was a deliberate attempt to do something differently that was done in the lower 48. Obviously tribes in the lower 48 are treated differently from those in Alaska. That was the whole idea of ANSCA. 3) ANSCA was undertaken with the full cooperation of the native community. They participated in the negotiations and agreed that they didn’t want a reservation system like the lower 48. 4) ANSCA was an attempt by all participants to focus more on an economic solution whereas the reservation system focused on isolation and has tried to back fit economic solutions with very mixed results. 5) I take exception to your statement on pg 3 “Placing land into trust secures tribal homelands, which in turn advances economic development, promotes the health and welfare of tribal communities, and helps to protect tribal culture and traditional ways of life.” There is no evidence to support such a statement. Taking land into trust does indeed secure the land but it encourages isolation, stifles economic development and has resulted in 3rd world health and crime conditions. 6) From pg 7 “The Solicitor’s memorandum observed that “[t]he 1978 Opinion gave little weight to the fact that Congress had not repealed section 5 of the IRA,..” I believe the solicitor in 1978 was in a much better position to interpret the intention of congress than was the solicitor in 2001. Perhaps congress saw no need to repeal the Alaska provision because the Department regulation already prohibited it. In any event to characterize the 1978 solicitors opinion as “a mistaken legal interpretation” is nothing but a cheap shot. 7) The decision in Venetie was in keeping with the intent of ANSCA (no Indian land) and that intent should be adhered to. 8) The reservation system has been a disaster for 150 years. Self-Governance gives reason for hope but the land trust has been and continues to be an impediment to that goal. Tribes now are fighting to gain more control of their land. Trust status is the ultimate obstacle to that goal. 9) Two of the Plaintiffs in Akiachak want to put land into trust so they can obtain additional federal law enforcement resources. If that just means more federal money then there are other mechanisms to obtain that and remain true to ANSCA. Alaska is a PL-280 state. There are certainly conflicts but let the state and the tribes work those issues out. After all the federal example hasn’t been very successful. Don’t take a step backwards by putting land into trust. Despite the departments statement that they just have the authority but would only take land into trust on a case by case basis rings hollow. 10) I find it interesting that the Department refers to the 2013 Secretarial Commission on Indian Trust Administration. The whole of that report describes the ineptness with which the land into trust process has been handled; not to mention the billions of taxpayer dollars that have been wasted in settling law suits, yet they turn around and recommend that Alaska be allowed to put land into trust. This commission as did its 1977 predecessor advocates only for stronger tribal governments not for better lives for their people.
hesutu's picture
azpark, thank you for your fascinating summary of issues. It's my understanding that placing land in these trusts then gives the federal government control over the land, in particular it gives them the right to negotiate with oil and mining companies to mine and pump the land for resources, and then make royalty payments to the federal government who pretends to hold the money "on behalf" of the tribe in trust, but in reality the money is placed in the general fund and spent on wars and bailouts for the benefit of the settler state. Generally there is no accounting or accountability, as we saw in the Cobell settlement where the government collected billions of dollars in royalties for mining and drilling, but kept no records of it and was unable to say how much there was or what happened to it. Obviously land in Alaska has extensive resources associated with it. Will creating similar trust status in Alaska bring similar federal control of traditional land as it did in the lower 48?
AlaskaPi's picture
azpark- This is all rather more complicated. While it can be said that Native peoples willingly accepted ANCSA, the full ramifications of the Act were not clear from the outset, especially as regards sovereignty issues. Some have presumed it did settle those issues , as in Venetie, on the side of a general loss of governmental powers. Many court cases since have bolstered tribal jurisdiction/sovereignty rights. It is not a done deal. ANCSA settled most of the lands with the Regional (for-profit) Corporations and originally provided for them to become publically traded companies after 20 years. A later amendment allowed shareholders/ corporations to decide whether to become public companies and all have chosen not to do so. After rocky beginnings the Regs have become economic powerhouses in the state . (It is a whole 'nother issue that we now have so many, many young Native people who are not shareholders in the Regs and the economic benefits they provide.) The lands most at issue here are those of the villages, small and within original townsite boundaries. The lands of the tribes themselves. Jurisdictional issues as regards law and order, education, child welfare, and the like are very messy here in Alaska with the state by and large refusing to accept tribal sovereignty without a court fight . Given that the vast part of the state called the unorganized borough , which has many, many villages within it, are at the full mercy of the state legislature for funding and without the rights communities in organized boroughs have, many villages have sought the rights retained by Native peoples under land-into-trust federal sovereignty . Alaska Natives, including me, want to have the maximum rights to govern ourselves allowed by federal law. The State of Alaska does not.