Reviving Indian Country: Expanding Alaska Native Villages’ Tribal Land Bases Through Fee-to-Trust Acquisitions

Alexis Studler* April, 2024

For the last fifty years, the possibility of fee-to-trust acquisitions in Alaska has been precarious at best. This is largely due to the Alaska Native Claims Settlement Act of 1971 (ANCSA), which eschewed the traditional reservation system in favor of corporate land ownership and management. Despite its silence on trust acquisitions, ANCSA was and still is cited as the primary prohibition to trust acquisitions in Alaska. Essentially, ANCSA both reduced Indian Country in Alaska and prohibited any opportunities to create it, leaving Alaska Native Villages without the significant territorial jurisdiction afforded to Lower 48 tribes. However, recent policy changes from the Department of Interior reaffirmed the eligibility of trust acquisitions post-ANCSA and a proposed rule from the Bureau of Indian Affairs signals a favorable presumption of approval for Alaska Native fee-to-trust applications. This Note reviews the history and controversy of trust acquisitions in Alaska, and more importantly, it demonstrates the methods in which Alaska Native Villages may still acquire fee land for trust acquisitions after ANCSA.

Introduction

In federal Indian law, “Alaska-specific provisions reflect the simple truth that Alaska is often the exception, not the rule.”¹ This pervasive and partially correct statement exemplifies the disparate treatment of Alaska Natives in federal Indian policy.² In a more literal sense, an “Alaska exception” in the Department of Interior’s (“Interior”) authority to take land into trust for tribes barred Alaska Native trust acquisitions until 2014.³ While that Alaska exception is officially “off the books,” it lingers in Interior’s wavering position on the legality of trust acquisitions in Alaska.⁴

The latest development in Interior’s position is a progressive one: at the end of 2022 Interior Solicitor Robert Anderson issued an opinion reaffirming the Secretary of Interior’s authority to acquire land in trust for Alaska Natives and establish reservations in the state.⁵ Shortly after, Interior approved a trust acquisition in downtown Juneau for the Central Council of Tlingit and Haida Indian Tribes of Alaska.⁶ The Central Council of Tlingit and Haida Indian Tribes has four additional fee-to-trust applications pending, and other Villages are following suit;⁷ both the Ninilchik Traditional Council and the Native Village of Fort Yukon have submitted applications.⁸ Solicitor Anderson’s recent opinion and Interior’s subsequent trust acquisition provides a hopeful signal that federal Indian policy in Alaska is aligning with that of the Lower 48—eliminating the Alaska exception for new, protected tribal land bases.

However, by January 17th, 2023, the State of Alaska filed suit alleging that the Tlingit and Haida trust acquisition was unlawful and challenging the Secretary’s authority to make trust acquisitions in the state.⁹ Ultimately, the State is not suing over 787 square feet of Tlingit and Haida trust land; rather, it aims for a judicial ruling categorically denying any future trust acquisitions in Alaska.¹⁰ The suit jeopardizes Alaska Natives’ only option to expand their territorial jurisdiction after the Alaska Native Claims Settlement Act (“ANCSA”).

In 1971, Congress enacted ANCSA to settle aboriginal claims to millions of acres across the State of Alaska, effectively clearing the way for oil and gas development.¹¹ ANCSA was a highly experimental attempt to avoid the perceived shortcomings of the reservation system in the Lower 48.¹² Rather than issuing the settlement proceeds to benefitting tribes, Congress created for-profit Alaska Native Corporations to receive and manage assets resulting from the settlement.¹³ While ANCSA revoked all but one of the existing reservations in Alaska,¹⁴ it never addressed the Secretary’s authority to take land into trust for Alaska Natives after ANCSA.

Solicitor Anderson’s opinion and a recent proposed rule from the Bureau of Indian Affairs (“BIA”) streamline the trust acquisition process. Interior’s current policy states that any fee land owned by an Alaska Native individual or Village may be eligible for fee-to-trust applications.¹⁵ Villages still have opportunities for acquiring fee land post-ANCSA; Village governments have successfully acquired fee land by transferring land from Alaska Native Corporations¹⁶ and by dissolving state law municipalities.¹⁷ Additionally, a municipal trust land program managed by the State enables partial land transfers to Villages within Village boundaries.¹⁸

Nonetheless, ANCSA was and still is cited as the primary prohibition to trust acquisitions in Alaska.¹⁹ This interpretation of ANCSA has left Alaska Native Villages frequently characterized as “sovereigns without territorial reach” and without Indian Country.²⁰ This is not to posit that the Villages cannot exercise tribal jurisdiction;²¹ unlike tribes within Indian Country, Alaska Native Villages exercise tribal jurisdiction as “membership- and interest-based” rather than land-based.²²

While land is not the “magic bullet” for the exercise of tribal sovereignty,²³ there are several benefits to developing a protected tribal land base designated as Indian Country.²⁴ For Alaska Natives specifically, tribal territorial jurisdiction could enhance economic development, enable regulations of abused substances, improve Village law enforcement, and bolster self-governance and self-determination.²⁵

This Note does not attempt to advise Alaska Native Villages to or to not put their land into trust. It reinforces the fact that the choice to expand territorial jurisdiction is a choice inherent to tribal sovereignty and must be afforded to the Alaska Native Villages accordingly.

This Note argues that the availability of trust acquisitions in Alaska is critical to facilitate a fuller form of tribal self-determination after ANCSA. It does so by summarizing the current and historical status of trust land in Alaska, reviewing recent developments in trust acquisition rules that may impact Alaska trust acquisitions, and exploring the avenues through which Alaska Natives can expand tribal territorial jurisdiction through trust acquisitions.

Part I summarizes the current state of Alaska Native Village tribal jurisdiction and the statutes that inform the status of Indian Country in Alaska. Part II explores both the opportunities and threats to trust acquisitions in Alaska—including Interior’s shifting policies, the Supreme Court’s Carcieri decision,²⁶ and new proposed regulations. Part III explores the opportunities and considerations for Alaska Native Villages in acquiring land through corporate transfers, municipal dissolution, and municipal trust land transfers.

Part I: A Brief History of Indian Country in Alaska

Federal treatment of Alaska Natives has been “scattershot” at best.²⁷ After the Treaty of Cession in 1867, every branch of the federal government oscillated on whether federal Indian law applied to Alaska Natives at all.²⁸ For example, early court decisions determined Alaska Natives were “not tribal” in the same sense as American Indians.²⁹ Statutes enacted between 1884 and 1900 protecting aboriginal title were presumed to be inapplicable to Alaska Natives.³⁰ It was not until the twentieth century that the judiciary³¹ and Congress³² acknowledged that federal Indian law applied to Alaska Natives. Reserves were established for the exclusive use of Alaska Natives³³ and in 1923 Interior asserted authority over negotiating leases as it did for Lower 48 tribes.³⁴ By 1932 an Interior Department Solicitor stated, “[i]t must now be regarded that the laws of the United States with respect to the American Indians are applicable generally to the Natives of Alaska.”³⁵ Nonetheless, Alaska Native tribes were not formally recognized under federal law until 1994,³⁶ or under state law until 2022.³⁷

Recognition of tribal land in Alaska fared little better than the formal recognition of tribal status. Early statutes regarding land claims entitled Alaska Natives to property they occupied as individuals but not as tribes.³⁸ Similarly, whether Alaska Native land was eligible for any claims of aboriginal title³⁹ or Indian Country status was initially unclear.⁴⁰ While Alaskan aboriginal title was eventually confirmed by the Supreme Court in 1955,⁴¹ the status of Alaskan Indian Country remains muddled in a century-long debate informed by two statutory schemes: the Indian Reorganization Act (“IRA”) and the Alaska Native Claims Settlement Act.

A. Alaska Native Tribal Jurisdiction and the Benefits of Indian Country

The “Indian Country” designation is critical to tribal governments’ full exercise of inherent sovereign powers; it delineates tribal jurisdiction for both civil and criminal purposes.⁴² Indian Country is a statutory term of art that encompasses reservations, “dependent Indian communities,” Indian allotments, and land held in trust.⁴³ This last category of land held in trust, or “trust land,” is property held in title by the United States⁴⁴ for the benefit of “individual Indians or tribes.”⁴⁵ Trust land was not originally included under the umbrella of Indian Country;⁴⁶ its inclusion is judicially-imposed.⁴⁷ It enjoys the same jurisdictional benefits as the other categories of Indian Country. Thus, having land designated as trust land, or Indian Country generally, usually precludes the application of state law and enables the exercise of a variety of governmental powers.⁴⁸

Specifically, tribal governments may enact and impose taxes, enforce tribal laws, adjudicate civil and criminal disputes including minor criminal offenses occurring on tribal lands, issue marriage licenses, buy and sell real property, regulate land use, provide essential and non-essential governmental services, and regulate the affairs of non-Natives on tribal land.⁴⁹

Perhaps more importantly, aside from its legal importance, Indigenous authors characterize Indian Country as “a place that marks the endurance of Indian communities against the onslaught of a marauding European society . . . a place that holds the promise of fulfillment.”⁵⁰

For a variety of historical and statutory reasons,⁵¹ Alaska has significantly less Indian Country than the Lower 48.⁵² This does not deprive Alaska Native Villages of tribal jurisdiction,⁵³ as a “tribe’s authority over its reservation or Indian Country is incidental to its authority over its members.”⁵⁴ However, it does shift the basis of jurisdiction to “membership- and interest-based” rather than “land-based.”⁵⁵ Thus, Alaska Native tribal courts retain jurisdiction over both their members and nonmembers who have entered a consensual relationship with the tribe and its members.⁵⁶ For example, relatively recent cases have solidified concurrent state and tribal jurisdiction over child welfare cases,⁵⁷ required State enforcement of tribal court decisions,⁵⁸ and espoused judicial comity with tribal courts as well as tribal court exhaustion.⁵⁹

However, while Alaska Native Villages may not need Indian Country to exercise their inherent sovereignty, certain aspects of sovereignty may only be exercised territorially; therefore, there are a number of benefits to putting land into trust. For example, because the Indian Country designation is necessary to regulate economic activity and tax transactions occurring in tribal territory, trust land is an important tool for managing tribal economic development.⁶⁰ Additionally, a number of federal grant programs—such as those for housing or environmental and cultural resource protection—are only available on land held in trust.⁶¹ For rural Villages specifically, an Alaska Commission on Rural Governance and Empowerment Report noted that putting land into trust could effectively manage “a range of land-based jurisdictional issues involving alcohol and other substance abuse control, economic development, environmental management and local governance innovation.”⁶²

Putting land into trust could also benefit the State, for example, by alleviating the strain on Alaska’s criminal justice system. Alaska is one of five states where concurrent state and tribal jurisdiction over criminal matters is mandated by Public Law 280.⁶³ While state courts exercise comity with tribal courts over some criminal misdemeanors, Alaska Native and Village tribal courts may not be able to exercise tribal jurisdiction over non-members without the Indian Country designation. For example, the Violence Against Women Reauthorization Act of 2013 provides for special tribal criminal jurisdiction over offenses committed by non-members in Indian Country.⁶⁴ Despite the fact that Alaska Natives are several times more likely to become victims of violent crime than other Alaskans,⁶⁵ their communities have the least law enforcement presence.⁶⁶ But, a 2013 report from the Indian Law and Order Commission (“ILOC”) suggested that because remote Villages are better positioned, culturally and geographically, to address criminal justice in their communities than the highly centralized state system, ⁶⁷ a tribal trust land base would facilitate criminal justice administration in Alaska Native Villages.⁶⁸

Most importantly, putting land into trust protects Alaska Natives’ right to self-governance and self-determination.⁶⁹ Proponents of trust acquisitions in Alaska note trust land would “improve Alaska Native tribes’ ability to maintain their cultural integrity, including language preservation, religion, traditional Native foods, and other aspects of tribal identity and sovereignty.”⁷⁰ Just as taking land into trust for tribes in the Lower 48 “succeeded in allowing tribes to reconsolidate and preserve homelands,”⁷¹ land held in trust for Alaska Natives would also protect traditional land bases, including by bridging gaps between existing allotments.⁷² Trust land would enable tribal governments, rather than corporate entities,⁷³ “to guide development to take more useful forms and improve standards of living for all tribal members.”⁷⁴

B. The Indian Reorganization Act

Often referred to as “the Indian New Deal,”⁷⁵ the Indian Reorganization Act of 1934 signaled a progressive move toward tribal self-determination after “a century of oppression and paternalism.”⁷⁶ It established the “machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.”⁷⁷ Contrary to the assimilation policies of preceding allotment statutes, the IRA emphasized the protection of tribal land bases,⁷⁸ encouraged tribal constitutions and bylaws,⁷⁹ and granted Interior authority to take land into trust⁸⁰ and establish reservations.⁸¹

While the IRA’s definition of “Indians” included Alaska Natives,⁸² it was not fully applicable in Alaska due to an unintentional drafting error.⁸³ Congress remedied that error in 1936 through an amendment to the IRA sometimes called the “Alaska Indian Reorganization Act” (“Alaska IRA”)⁸⁴ that tailored the existing classifications of the IRA to better fit Alaska Natives.⁸⁵ The Alaska IRA provided that Alaska Natives were not “recognized as bands or tribes, but having a common bond of occupation, or association, or residence within a well-defined neighborhood, community, or rural district may organize to adopt constitutions and bylaws and receive charters of incorporation and Federal loans” under the IRA.⁸⁶

The Alaska IRA also extended the IRA’s provisions authorizing the Secretary of Interior to take land into trust and establish reservations⁸⁷ to land in Alaska.⁸⁸ The Secretary instructed that only Villages consisting of “all Native residents” could exercise governmental powers and it was assumed these Villages would petition to create reservations.⁸⁹ Organizations of Alaska Natives occupying existing territorial municipalities alongside non-Natives or organizations of Alaska Natives based on common occupation could not.⁹⁰

Pursuant to the Alaska IRA, sixty-nine Alaska Native Villages or regional groups adopted IRA constitutions, and over sixty also adopted corporate charters.⁹¹ They were encouraged to use standard forms, and many constitutions did not specify what kind of IRA organization they established.⁹² The first two significant reservations, the Venetie Reserve and Karluk Fishing Reserve,⁹³ were established in 1943.⁹⁴ Eventually, a total of six reserves were established under the Alaska IRA, all of which earned trust land status.⁹⁵ However, all six IRA reservations were abolished with the passage of the 1971 Alaska Native Claims Settlement Act.⁹⁶

C. The Alaska Native Claims Settlement Act

ANCSA is a stunningly complex and experimental statute that has cast uncertainty on both the existence of Indian Country⁹⁷ and even recognizable tribes⁹⁸ in Alaska decades after its enactment. The need for ANCSA originated from land claims disputes upon statehood. The Alaska Statehood Act admitted Alaska into the Union in 1959.⁹⁹ It required the State to disclaim “all right and title” to tribal lands¹⁰⁰ but permitted it to select 103 million acres of “vacant, unappropriated, and unreserved” public federal lands.¹⁰¹ However, the boundaries and claims of aboriginal title in Alaska were left unclear and unsettled.¹⁰² Alaska Natives protested the State’s selections and claimed aboriginal title over most of the state.¹⁰³ In 1966, the Secretary of the Interior issued a moratorium on land conveyances until the Alaska Natives’ claims could be settled by Congress.¹⁰⁴ The result was the 1971 passing of ANCSA.

ANCSA extinguished all claims of aboriginal title¹⁰⁵ in exchange for approximately 45 million acres of land¹⁰⁶ and $962.5 million.¹⁰⁷ Unlike similar settlements in the Lower 48,¹⁰⁸ it “severed Native land ownership from Native government.”¹⁰⁹ Rather than allocating settlement assets to tribal governments and their territory,¹¹⁰ ANCSA mandated the sharing of assets among state-chartered Alaska Native village and regional corporations.¹¹¹ The over 200 village corporations were to select up to 23 million acres of surface estate within or around townships enclosing Native Villages,¹¹² while the twelve regional corporations received the subsurface estate allocations within their region in addition to subsurface estates of land conveyed to village corporations.¹¹³ Eligible Alaska Natives also received shares in both the village and regional corporations with which they were affiliated.¹¹⁴

ANCSA did not address the tribal sovereignty and jurisdiction of Alaska Native Villages beyond the revocation of reservations and the preservation of allotments.¹¹⁵ Some scholars have insinuated that the village corporations essentially replaced Village governments,¹¹⁶ and others have argued that ANCSA “specifically abrogated” an “extended trust relationship with the federal government.”¹¹⁷ For decades, commentators contended that ANCSA was a de facto termination statute,¹¹⁸ pointing to its oft-cited declaration of policy:

[T]he settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship . . . .¹¹⁹

In a 1993 Opinion issued by Solicitor Thomas Sansonetti (“Sansonetti Opinion”), Interior acknowledged that the lack of trust land, abolition of reservations, and minimal federal supervision of ANCSA corporations paralleled the tribal termination legislation of the 1950s.¹²⁰ However, scholars note that ANCSA differs from termination legislation by preserving the federal trust relationship between the United States and Alaska Natives based on “their status as tribal people, not because of the status of their land.”¹²¹ While the recognition of Alaska Native sovereignty was judicially confirmed post-ANCSA, the Indian Country question would not be addressed until Alaska v. Native Village of Venetie Tribal Government.¹²²

D. Alaska v. Native Village of Venetie Tribal Government

In 1943, Interior designated 1.8 million acres of land as the Chandalar Reservation for the Neets’aii Gwich’in.¹²³ This reservation
was revoked pursuant to ANCSA, but Section 19 of the Act permitted village corporations on former reservations to keep the surface and subsurface estates of those lands in lieu of all other ANCSA benefits.¹²⁴ The Venetie and Arctic Village Corporations exercised Section 19 to transfer fee title of the former Chandalar Reservation to the Venetie Tribal Government and sought to tax business activities occurring in the reservation under the rules governing Indian Country.¹²⁵

However, the Supreme Court held that lands conveyed pursuant to ANCSA did not constitute a “dependent Indian community,” which would have been the only applicable category of Indian country according to the Court.¹²⁶ To meet the “dependent Indian community” definition, the land must be set aside “for the use of Indians as Indian land” and held under federal superintendence.¹²⁷ The Court asserted former ANCSA corporation could not meet either requirement because ANCSA lands were transferred in unrestricted fee title, so Venetie could use it for “non-Indian purposes,” and “ANCSA’s settlement provisions were intended to avoid a lengthy wardship or trusteeship” associated with federal superintendence.¹²⁸ As a result, any land conveyed pursuant to ANCSA, even if it ended up in tribal ownership, would not be considered Indian Country.

Part II: Reasserting Trust Acquisitions for Alaska Natives

After ANCSA and Venetie, Alaska Native Villages became characterized as “sovereigns without territorial reach,”¹²⁹ and Indian Country in Alaska was limited to allotments, trust land, or other restricted land set aside for federal superintendence.¹³⁰ Although multiple village corporations have conveyed land in fee simple to Village governments, without further action, it will not constitute or confer the benefits of Indian Country.¹³¹ However, one option to convert such fee land into Indian Country is to put it into trust. Over the past decade, Alaska Natives launched a successful campaign to remove the “Alaska exception” from the Secretary of Interior’s authority to acquire new trust land in Alaska, reopening the opportunity to expand Indian Country through trust acquisitions.

A. Akiachak and Removing “the Alaska Exception”

Until 2014, the Department of the Interior interpreted ANCSA as precluding any new Alaska trust land acquisitions under Section 5 of the IRA.¹³² The land into trust regulation, 25 C.F.R. Part 151.1 (“Part 151”), stated it did 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.”¹³³ This exclusion, commonly called the “Alaska exception,” derived from a 1978 memorandum from Associate Solicitor Thomas W. Fredericks (“1978 Opinion”) regarding Venetie. Citing ANCSA’s policy declaration to avoid “creating a reservation system or lengthy wardship or trusteeship,” he concluded that it would be an abuse of discretion to accept the former reservation lands into trust.¹³⁴ Despite the later withdrawal of the Fredericks Opinion¹³⁵ and acknowledgements that the validity of the Alaska exception was questionable,¹³⁶ it remained in place “without a clear legal basis or policy rationale.”¹³⁷

In 2006, Akiachak Native Community, Chalkyitsik Village Council, Tuluksak Native Community, and the Chilkoot Indian Association (collectively “Akiachak”) successfully sought judicial review of the Alaska exception in Akiachak Native Community v. Salazar.¹³⁸ In 2013, the D.C. District Court held that the Alaska exception violated the IRA’s privileges and immunities clause barring “any regulation . . . that discriminates among federally recognized . . . [t]ribes relative to the privileges and immunities available to them by virtue of their status as Indian tribes.”¹³⁹ The court noted that ANCSA did not explicitly revoke trust land eligibility¹⁴⁰ and that such an aspect of tribal sovereignty cannot be implicitly repealed.¹⁴¹

During the decade-long Akiachak litigation,¹⁴² Interior amended Part 151 to remove the Alaska exception (“2014 Final Rule”)¹⁴³ and Solicitor Hilary Tompkins issued Solicitor Opinion M-37043 (“Tompkins Opinion”), memorializing the Department’s views on the applicability of IRA Section 5 in Alaska.¹⁴⁴ The “rule gives Alaska Native tribes the option of applying to have fee land taken into trust through the same procedures as Indian tribes elsewhere in the United States.”¹⁴⁵ With regard to any lands transferred under ANCSA, the rule states: “[i]f an application for ANCSA or other lands owned by a tribe meets the statutory and regulatory criteria, the land could be taken into trust.”¹⁴⁶ Land that is eligible for fee-to-trust applications includes “fee title to any alienable land, including ANCSA lands,” held by Alaska Native tribes or individuals.¹⁴⁷ In the 2014 Final Rule, Interior’s position is clear: any fee land owned by Alaska Natives may be applied to be taken into trust.

Despite the ruling in Akiachak and the 2014 Final Rule, the certainty of trust land acquisitions in Alaska was short-lived. In 2018, just four years later, trust acquisitions temporarily halted when Acting Solicitor Daniel Jorjani withdrew the Tompkins Opinion to review the validity of the Alaska exception.¹⁴⁸ Later, on the last full day of the Trump Administration,¹⁴⁹ Solicitor Jorjani permanently rescinded the Tompkins Opinion in M-37064 (“Jorjani Opinion”).¹⁵⁰ However, in April of 2021, Solicitor Robert Anderson withdrew the Jorjani Opinion, criticizing it on the grounds that it did not “engage, explain, or attempt to reconcile its concerns with the . . . regulations, which allow for land into trust acquisitions in Alaska.” ¹⁵¹ Solicitor Anderson also noted that the Jorjani Opinion was not “accompanied by any formal change in policy (e.g. a proposed rulemaking for [25 C.F.R.] § 151.1).”¹⁵² As of 2023, “the Secretary’s land into trust authority and reservation proclamation authority for Alaska Natives and Alaska Tribes remain intact.”¹⁵³

However, because the Interior’s Solicitor Opinions are binding on all Interior offices and officials until formally modified or revoked,¹⁵⁴ even without formal regulatory changes, trust acquisitions for Alaska Natives remain vulnerable to changing attitudes and administrations.

B. Carcieri v. Salazar and its Applicability to Alaska

The Secretary’s general authority to take land into trust is limited by Carcieri v. Salazar, which dictates that Interior may only acquire and hold land in trust for tribes or members of tribes that were “under Federal jurisdiction” at the time of the IRA’s enactment in 1934.¹⁵⁵ The Court based its classification on the IRA’s definition of “Indian,” which is limited to “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.”¹⁵⁶ However, Interior’s current policy is that Alaska Natives are included under the IRA’s definition of Indian because IRA Section 19 states that “Eskimos and other aboriginal peoples of Alaska shall be considered Indians.” ¹⁵⁷ Interior posits
that because Alaska Natives fall under this “stand-alone definition,” they are not subject to Carcieri’s “under federal jurisdiction” analysis.¹⁵⁸

This position on the Carcieri requirements to Alaska Natives has not been challenged in court; however, the Carcieri requirements may not be applicable to any Indigenous tribes in the future. In 2023, legislation was introduced in both the House of Representatives and Senate to amend Section 19 of the IRA by replacing the phrase “any recognized Indian tribe now under Federal jurisdiction” with “any federally recognized Indian tribe.”¹⁵⁹ This amendment would overrule the Carcieri criteria and codify Interior’s authority to acquire trust land for any federally recognized tribes.¹⁶⁰

C. Proposed Rule for Improved Trust Acquisitions

Interior’s current support for trust acquisitions is bolstered by the Bureau of Indian Affairs’ (“BIA”) recent proposed rule.¹⁶¹ The rule “make[s] the land into trust process more efficient, simpler, and less expensive to support restoration of tribal homelands” by modifying a number of sections within Part 151.¹⁶² Broadly speaking, these modifications establish “a clear Departmental policy to support land into trust,” require a 120-day deadline for trust application decisions, streamline the process for different forms of acquisitions, define the process for determining whether a tribe is eligible for IRA benefits as required by Carcieri, and modify minor aspects of the rule that tend to create obstacles to trust acquisition.¹⁶³

The Proposed Rule makes it clear that “the Secretary’s policy is to support acquisitions of land in trust for the benefits of tribes and individual Indians.”¹⁶⁴ BIA proposes a list of reasons to support the Secretary’s policy, including “establishing a tribal land base and providing for climate change-related acquisitions.”¹⁶⁵ However, tribes will not need to demonstrate or argue these reasons if they already own a fee interest in the land.¹⁶⁶

Perhaps most promising to Alaska Native tribal governments is the Proposed Rule’s third objective. In addition to streamlining the application processes for existing acquisition methods,¹⁶⁷ BIA added a new category called “initial Indian acquisitions”¹⁶⁸ that is “designed to ease the process of acquiring first trust lands for those tribes who do not currently possess any land in trust.”¹⁶⁹ Tribes currently without trust land are eligible for this category, regardless of whether they have had trust land at some earlier point.¹⁷⁰ BIA specifically notes that Alaska Native individuals qualify for individual Indian trust acquisitions in “the same manner and to the same extent as any eligible individual Indian under these regulations.”¹⁷¹ These changes afford greater “weight to applications pursuing certain important purposes for tribal welfare, including, for instance, the need to protect tribal homelands” and establishes a presumption of approval for initial Indian acquisition requests.¹⁷²

Part III: Expanding Land Eligible for Trust Acquisitions

Current tracts of Indian Country in Alaska include allotments, townsites, the Metlakatla Reserve, and a few fishing reserves that maintained trust status after ANCSA.¹⁷³ As long as Interior maintains trust acquisition authority in Alaska, any fee land owned by Alaska Natives may be put into trust through BIA’s fee-to-trust applications.¹⁷⁴

A. Former Reservations or Reserves

Former IRA reservations, executive order reservations, and public purpose reserves do not currently have trust land status;¹⁷⁵ however, land within reserves that existed before ANCSA are eligible for fee-to-trust applications if the land is owned in fee by tribal governments.¹⁷⁶ Under BIA’s Proposed Rule, acquisitions of former reservation land would be considered initial Indian acquisitions and would enjoy a presumption of approval.¹⁷⁷ These former reservations and reserves, if now owned in fee, could constitute a significant gain in trust land. For example, the six IRA reservations constitute over 1.9 million acres,¹⁷⁸ the former executive order reserves constitute almost half a million acres,¹⁷⁹ and the former public purpose reserves constitute approximately 777,500 acres.¹⁸⁰

B. Transferring Land from Village Corporations

A majority of the land within former reserves is likely not held in fee by tribal governments, but rather by village and regional corporations.¹⁸¹ Five reserves—St. Lawrence Island, Elim, Chandalar, Tetlin, and Klukwan—were transferred to village corporations in fee under Section 19 of ANCSA. As a result, these reserves (and their associated villages)¹⁸² maintained a combined total of almost 4 million acres. ¹⁸³

By contrast, part or all of the former Chandalar and Tetlin reserves are held in fee simple by the Native Village of Venetie’s and the Native Village of Tetlin’s respective tribal governments rather than village corporations.¹⁸⁴ This was achieved by transferring land distributed to their respective village corporations under ANCSA back to the tribal governments.¹⁸⁵ While not a novel idea,¹⁸⁶ the corporate element of these transfers imposes requirements from the Alaska Corporate Code on the transaction and exposes Native corporations to liabilities like shareholder derivative suits and dissenters’ rights.¹⁸⁷ A sale of all, or substantially all, of a corporation’s assets requires a shareholder vote,¹⁸⁸ which in turn requires the village corporation’s board of directors to issue proper notice and hold a shareholder meeting for the vote.¹⁸⁹ For corporations without classes of shareholders, approval requires an affirmative vote of two-thirds of the outstanding shares of common stock.¹⁹⁰ If a corporation does have classes of shares,¹⁹¹ approval requires the affirmative vote of two-thirds of each class in addition to the affirmative vote of two-thirds of total outstanding shares.¹⁹²

The Tetlin Native Corporation (“TNC”) successfully transferred land to the Tetlin Village Council in this manner. After an affirmative shareholder vote, TNC transferred 643,000 of its 743,000 acres to the tribal government for $10.¹⁹³ However, a group of “dissenting” shareholders later sued the TNC Board of Directors alleging the transfer constituted a breach of fiduciary duty.¹⁹⁴ Typically, dissenting shareholders would have the opportunity to have their shares purchased, ANCSA’s restrictions on alienability seemed to prevent TNC from purchasing the plaintiffs’ shares.¹⁹⁵ While the Alaska Supreme Court held that any settlement agreement involving the alienation of dissenters’ shares would violate ANCSA, it did not address what dissenter’s rights exist with respect to shares in Native corporations.¹⁹⁶ The actual transfer of title to the Village government was not challenged or struck down. Notwithstanding the question of dissenters’ rights, current law allows Alaska Native Corporations to convey land to Village governments upon a successful shareholder vote. Once land ownership passes to the Village government it is eligible for a fee-to-trust application.

In addition to corporate duties and shareholder suits, another consideration for corporate transfers is the existence of split estates. Except for Section 19 conveyances mentioned above, estates are typically split between surface estates, given to the village corporations, and subsurface estates, given to the regional corporations.¹⁹⁷ In the 2014 Final Rule, several commenters noted concerns over the regional corporations’ rights and abilities to continue development on their subsurface estates if the corresponding surface estates were taken into trust.¹⁹⁸ Interior noted that subsurface estates would not only be unaffected, but also that mineral estates are considered dominant over surface estates; subsurface owners retain a “right of reasonable access to the minerals below.”¹⁹⁹ Having surface estates held in trust for Villages, instead of owned by village corporations, will not change the development rights of regional corporations. However, regional corporations will be subject to tribal regulatory jurisdiction for any activities on the surface estate in addition to ANCSA’s consent requirements.

Regional corporations must receive consent from village corporations for any mining activities “within the boundaries of [a] Native village.”²⁰⁰ The Ninth Circuit has interpreted “boundaries” to include the actual territory of Villages defined by occupied area rather than historical boundaries or the land owned by village corporations.²⁰¹ Because the area requiring consent is based upon Village territory, having land in trust for Villages would solidify and potentially expand those boundaries.

For village corporations that merge, consolidate, or otherwise dissolve, the consent requirement passes to “a separate entity composed of the Native residents of such Native village.”²⁰² For example, village corporations that have merged with other ANCSA corporations have required in their merger agreements that regional corporations seek consent from Village tribal governments.²⁰³ Whether a village corporation continues to operate after a land transfer to a tribe or not, the regional corporations must seek permission for subsurface development,²⁰⁴ and Villages may exert their inherent sovereign power to regulate economic activities on the surface estate if it is held in trust.²⁰⁵

C. Acquiring Land from Municipalities and Municipal Trust Land

Municipalities and land held in trust by the State for future municipalities may also be sources of fee land for eventual fee-to-trust applications. To encourage Alaska Native Villages to adopt municipal governments under state law,²⁰⁶ ANCSA required village corporations to convey to municipalities land “on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs.”²⁰⁷ For Villages without a state-chartered municipality, the land was put into trust with the State for future municipalities.²⁰⁸

1. Existing Municipalities

At the passage of ANCSA in 1971, 120 Alaska Native Villages had existing municipalities organized under state law.²⁰⁹ These municipalities have the power to “to acquire, manage, control, use, and dispose of real and personal property, whether the property is situated inside or outside the municipal boundaries.”²¹⁰ Municipal governing bodies establish the procedures for acquiring and disposing of land or interests in land by the municipality.²¹¹ However, the state constitution limits the acquisition and disposal of municipal land.²¹² Most notably, the Alaska State Constitution’s Equal Protection Clause has been interpreted to bar restrictions on municipal land sales that allow sales only to Alaska Native individuals.²¹³ Additionally, municipal transfers to tribal governments may not survive an equal protection challenge without special provisions ensuring that the land “will be used for public purposes on a nondiscriminatory basis.”²¹⁴ Therefore, while it is technically possible for established municipalities to transfer land directly to Alaska Natives or Village governments, equal protection restrictions make this route less feasible or attractive.

2. Municipal Dissolution

Through the State, Village governments may acquire the property of dissolved municipalities for fee-to-trust applications by petitioning the Local Boundary Commission or securing signatures from 25% of local voters.²¹⁵ Generally, petitions to dissolve come from the municipality itself or its citizens.²¹⁶

In the event of a successful dissolution petition, there are two methods for entities to succeed to the interests of the dissolved municipality.²¹⁷ First, the dissolving municipality may designate another municipality to act as a successor for their assets and liabilities.²¹⁸ Second, if no such successor exists, the assets and liabilities succeed to the State.²¹⁹ Dissolving municipalities may not directly designate tribal governments as successors through this first method because tribal governments and entities are not included in the statute’s definition of “municipality.”²²⁰ However, several tribal governments are listed as successors to assets and liabilities for dissolved municipalities,²²¹ and both state and federal documents reference tribal governments as successor entities for former municipalities.²²² While this implies that tribal governments may be designated successors, a judiciary committee hearing regarding a proposed amendment to the statute governing successor entities revealed that the ownership of assets and liabilities always passes to the State before it is passed to tribal governments.²²³ Marjorie Vandor, Assistant Attorney General at the Alaska Department of Law, noted that “[t]here is a split second of time when the transferring document is recorded . . . where the state is in this transfer of title.”²²⁴ This means that Village governments may not be directly designated as municipal successors without some level of state intervention and permission.

To succeed the municipalities, tribal governments sign an agreement prepared by the Department of Law transferring any assets and liabilities and waiving tribal sovereign immunity.²²⁵ In 1996, at the time of the proposed amendment, these agreements included “an actual assertion . . . that [Alaska Natives and Village governments] will not claim this property to be Indian [C]ountry now or in the future.”²²⁶ However, because this proposed amendment eventually died in committee, the process for transferring former municipal assets, including land, to Village governments still requires state action.²²⁷ While the state action requirement may not create a substantial hurdle for Villages seeking to acquire former municipal lands, any anti-Indian Country provisions in the transfer agreements may impact future fee-to-trust applications. Because Interior currently states that any land held in fee by Alaska Natives is eligible for fee-to-trust applications, former municipal lands now owned in fee by Village governments may still be eligible; however, it is not clear how Interior would treat such an agreement between the State and the tribal entity.²²⁸

3. Municipal Trust Lands

As briefly mentioned above, ANCSA mandated that land not transferred to existing municipalities was to be held in trust by the State for future municipalities.²²⁹ As of 2019, the State held approximately 11,500 acres in trust for future municipalities.²³⁰ While title to this “municipal trust land” is held by the State, it is restricted in how it may manage and dispose of the land on behalf of unincorporated Villages.²³¹ For example, transfers of interest in municipal trust lands may not be made without the approval of an “appropriate village entity such as the traditional council, a village meeting, or a village referendum.”²³² Specifically, transfers such as sales, leases, easements, and permits require appropriate village entity approval.²³³

Village governments may use municipal trust land, but the State will only fully transfer ownership if a municipality forms under state law.²³⁴ At that point, all title to the municipal trust lands will then transfer to the municipality and the State will release its trust responsibility.²³⁵ However, mandatory public notices issued prior to the transfer municipal trust land demonstrate that the State will partially transfer land to individuals and Village entities through quitclaim deeds.²³⁶ For individuals, the State has granted quitclaim deeds of former municipal trust land for residential purposes.²³⁷ By contrast, for Village entities such as the Minto Village Council and the Native Village of Nelson Lagoon, the State deeded former trust land to the Village governments outright.²³⁸

The language of relevant statutes and regulations does not impose a limit on how much land may be transferred out of trust to individuals or Village entities.²³⁹ However, the Commissioner may reject a proposed transfer of trust land “if he or she finds that the disposal would be inconsistent with the good faith execution of the commissioner’s trust responsibility to [the municipality] that might be incorporated in the Native village.”²⁴⁰ Additionally, a “resolution of a recognized village entity or the village residents” that “request[s] and approv[es] the disposal of specific municipal trust land” does not “impose a duty upon the commissioner to make such a disposal.”²⁴¹ While a request for a full transfer of municipal trust lands to a Village entity may run afoul of the Commissioner’s duty to “future” state-chartered municipalities, parcels successfully transferred to Alaska Native individuals or Village governments are nonetheless transferred in fee, making them eligible for federal fee-to-trust applications.²⁴²

Conclusion

If an Alaska Native Village chooses to pursue trust acquisition, Village governments have several opportunities to acquire additional fee land for fee-to-trust application. Former reservation land owned in fee by Village governments is already eligible for trust acquisition. Village corporations that took advantage of ANCSA’s Section 19 may grant both surface and subsurface estates to Villages via corporate transfers, and other village corporations may do the same with their surface estates. In the municipal sphere, Villages may directly receive land from existing municipalities or become the eventual successors to dissolved municipalities. Finally, Villages may acquire some of the municipal trust land within the boundaries of their Village through quitclaim deeds issued by the State. Alaska Native Villages that employ these methods to acquire land can take advantage of Interior’s new presumption for trust acquisitions to significantly expand legally protected tribal land bases in Alaska.

^* J.D. Candidate, University of Michigan Law School, 2024; B.S.B. University of Minnesota, 2019. Thank you to Professors Kaighn Smith, Jr. and Matthew Fletcher for their guidance during my research, writing, and publication of this note. Thank you to my partner for his thoughtful review and to my former classmate Mitchell Forbes for fielding my many questions.