Law | Trust

Law Article: Major change for Alaska tribes with land-into-trust

A view of the Akiachak Native Community, the lead plaintiff in a lawsuit that prompted the Obama administration to include Alaska tribes in the land-into-trust process. Photo from Calista Corporation

Attorneys discuss new Bureau of Indian Affairs regulation that allows Alaska tribes to follow the land-into-trust process for the first time:
The final rule announced on December 19 allows trust acquisitions in Alaska by deleting language from 25 C.F.R. § 151.1 (which governs the acquisition of land by the United States in trust for individual Indians and tribes) that previously stated “These 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.” This language is commonly known as the “Alaska Exception,” and has always been controversial. The exception owes its genesis to a 1978 memorandum from the Assistant Solicitor of Indian Affairs and was included in 25 C.F.R. § 151.1 since its promulgation in 1980. In 2001, the 1978 memorandum was rescinded but the Alaska Exception remained in the regulations. In March 2013, a federal district court held that the Alaska Exception was invalid as it discriminated among Indian tribes. Akiachak Native Cmty. v. Salazar, 935 F. Supp. 2d 195, 2010-11 (D.D.C. 2013). It was this decision that prompted the BIA’s issuance of the December 19, 2014 final rule.

The BIA’s decision to delete the Alaska Exception is notable because it demonstrates the BIA’s willingness to react to litigation. The final rule goes as far as to specifically state that it is intended to clarify the law (rather than change it), which could be of significance to the ongoing appeal in Akiachak. The BIA’s announcement of the final rule also specifically states that there should not be different classes of federally recognized tribes. The BIA’s announcement notes its other policy considerations in promulgating the final rule include enhancing law enforcement and furthering economic development. Some commentators were opposed to the regulation, noting the BIA’s history of ineptitude in managing Indian affairs. In response, the BIA noted that having land put into trust is a voluntary process for tribes. Some commentators also expressed concern that taking land into trust in Alaska could affect the State of Alaska’s jurisdiction over certain lands, to which the BIA responded that trust decisions would be made on a case-by-case basis “sensitive to inter-jurisdictional concerns.”

Get the Story:
Richard Rosston, Mary Streitz and Forrest Tahdooahnippah: Monumental Change Announced for Alaska Native Tribes—BIA will Allow Alaskan Land to be Taken into Trust (JD Supra 12/24)

Relevant Documents:
Dear Tribal Leader Letter from Kevin Washburn (April 30, 2014)

District Court Decisions:
Akiachak Native Community v. Jewell (September 30, 2013)
Akiachak Native Community v. Salazar (March 31, 2013)

Federal Register Notice:
Land Acquisitions in the State of Alaska (December 23, 2014)

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