On June 29, 2018, Department of the Interior (“Interior”) issued a public notice withdrawing an opinion issued January 13, 2017 by Interior’s then-Solicitor, Hilary Tompkins, which concluded that Interior retains the authority to acquire land into trust for Alaska natives.

Interior’s now-withdrawn 2017 opinion found that Section 5 of the Indian Reorganization Act (“IRA”) provided specific authority for the Secretary of the Interior to accept Alaska lands into trust for Alaska natives.  The 2017 opinion was the culmination of several decades of debate and litigation over the issue, including a 1978 Interior memorandum finding that it would be an “abuse of the Secretary’s discretion” to take land into trust on behalf of Alaska Native tribes.  The 1978 memorandum was based on an interpretation of the Alaska Native Claims Settlement Act (“ANCSA”), a statute drafted to settle all land claims by Alaska Natives, and concluded that ANSCA revoked the Secretary’s authority to take Alaska Native lands into trust.

In 2001, Interior issued final regulations that implemented the findings of the 1978 memorandum by not allowing lands to be taken into trust for Alaska Natives, except in the case of the Metlakatla Indian Community in Southeast Alaska, which was established by Congress in 1891 and is the state’s only remaining reservation, as the Metlakatla chose not to give their lands up for payment under the ANCSA, as other Alaska Native tribes had.  In 2006, four Alaska Native tribes—the Akiachak Native Community, Chilkoot Indian Association, Tulusak Native Community, Chalkyitsik Village—and one Alaska Native Individual, filed suit against Interior, arguing for their right to have land taken into trust on behalf of Alaska Natives, alleging that ANCSA’s exception for Alaska tribes was unfair, and that all Indian tribes should receive equal treatment with respect to land-into-trust obligations, regardless of their location.  The D.C. Circuit found in favor of the Alaska Natives, who then petitioned the federal government to take lands into trust, resulting in Interior’s 2017 opinion.

In its June 28 notice, Interior expressed “doubts as to the completeness and balance” of the 2017 opinion and its lack of discussion on post-ANCSA legislation, including the Federal Lands Policy and Management Act (“FLPMA”), which repealed portions of the IRA and raised questions as to whether Interior’s authority to take lands into trust in Alaska still existed.  Interior’s June 28 notice also discussed the Alaska National Interest Lands Conservation Act (“ANILCA”), which established a subsistence priority for rural residents, and a land bank program to protect undeveloped lands.  The June 28 notice concludes by describing the need for a more thorough regulatory review of post-ANCSA legislation on the Secretary’s authority to take land in trust in Alaska and to conduct consultation with Indian and Alaska Native communities on an interim policy for land-into-trust acquisitions in Alaska and elsewhere.  It establishes a six-month notice and comment period on the decision to withdraw Interior’s 2017 opinion, followed by another six months for internal review of comments.