DOI Continues Policy Fluctuations After Once Again Prohibiting Fee-To-Trust Acquisitions in Alaska

On Feb. 24, Department of the Interior (DOI) Solicitor William Doffermyre issued M-37087, revoking DOI’s authority to take land in Alaska into trust pursuant to the Indian Reorganization Act (“IRA”) on behalf of Alaska Native tribes. This opinion overturned an earlier memorandum, M-37076, issued by Solicitor Robert Anderson of the Biden administration, which had confirmed such authority. DOI solicitors have repeatedly alternated positions from administration to administration on whether the U.S. government’s fee to trust authority extends to Alaska. Below we examine how prior statutes and solicitors’ opinions have contributed to the ongoing uncertainty regarding the trust relationship and federal obligations to Alaska Natives. We also address the immediate implications of the Trump administration’s decision and how it may reflect future policies impacting Indian Country.

Placing land into trust allows tribes to exercise tribal sovereignty and jurisdiction and provide for economic development, public safety and natural resources management. Because Alaska is the 49th state, only gaining statehood in 1959 (a quarter century after the IRA) several laws were enacted that apply to United States’ relationship with Alaska Natives specifically, contributing to questions about the its authority to accept land in trust on their behalf.

How We Got Here

In 1934, Congress passed the IRA, in which Section 5 authorizes the secretary of the interior to acquire land and place it into trust for the benefit of a tribe or a tribal citizen. The law ended support for the General Allotment Act, which authorized the U.S. government to subdivide tribal communal landholdings into individual, private allotments and sell the surplus land on the reservations to non-native settlers.

Section 13 of the IRA provides that, while certain provisions of the act apply to the then-Territory of Alaska, Section 5’s land-into-trust authorization does not. Congress responded by enacting the Alaska IRA in 1936, which made Section 5, and related provisions, applicable to the Territory of Alaska.

In 1958, Congress enacted the Alaska Statehood Act. Section 6 of the Alaska Statehood Act granted Alaska the right to select vacant and unappropriated public lands to further the development and expansion of established communities. Meanwhile, Section 4 of the law required Alaska to “forever disclaim all right and title to … any lands or other property … the right or title which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives.” 

These two sections created various issues for implementation. Given the law highlighted existing Indigenous land claims, Alaska Natives disputed many of the land selections made by the state, arguing that they had a claim over the nominated parcels. In 1966, the federal government announced a moratorium on the disposition of federal lands until it solved issues surrounding Alaska Native land claims.

In 1971, in an effort to resolve these issues, Congress passed the Alaska Native Claims Settlement Act (“ANCSA”). The law extinguished native claims to more than 360 million acres of land. To compensate, the law divided approximately 44 million acres between 12 private, for-profit Alaska Native regional corporations (ANCs) and more than 200 private, for-profit Alaska Native village corporations mandated by the statute.

The ANCSA created a land entitlement system different from the reservation system that exists in the lower 48 states, one in which land held by ANCs is considered private property. Despite the stark difference in land entitlements between tribes in Alaska and those in the lower 48 states, neither the ANCSA, nor any subsequent amendments, invalidated Section 5 of the IRA.

The “Alaska Exception” and Varying Solicitors’ Opinions

In 1978, the Arctic Village and the Native Village of Venetie petitioned DOI to have land transferred into trust. Then-Associate Solicitor for Indian Affairs Thomas Fredericks authored a legal memorandum (“Fredericks Opinion”) concluding that doing so would exceed the secretary’s authorities. Accordingly, DOI promulgated regulations (Part 151) governing the federal government’s land into trust policies, which included the so-called “Alaska Exception.” It stated, “[t]hese 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 it members.” 

In 1993, Solicitor Thomas Sansonetti issued M-36975, in which he contended that while Congress had not repealed Section 5 of the IRA, it intended not to “create trusteeship or a reservation system” through its enactment of the ANCSA. In January 2001, Solicitor John Leshy withdrew the Fredericks Opinion. However, that same day DOI finalized its regulations, Acquisition of Title to Land in Trust, maintaining the Alaska Exception. 

In 2013, the U.S. District Court for the District of Columbia, in Akiachak Native Community v. Jewell, held that DOI’s Part 151 Alaska Exception violated the privileges and immunities clause of the IRA. The court ordered the Alaska Exception to be vacated from the regulations. In 2014, DOI finalized a regulation, “Land Acquisitions in the State of Alaska,” to formally remove the Alaska Exception.

Since then, DOI’s internal guidance has continued to oscillate:

• 2017: Solicitor Hilary Tompkins issued M-37043, documenting DOI’s stance on the applicability of IRA Section 5 in Alaska, allowing trust acquisitions on behalf of Alaska Natives.
• 2018‒2021: Solicitor Daniel Jorjani issued M-37053, withdrawing the M-37043 pending review, before later permanently rescinding it.
• 2021‒2023: Solicitor Anderson issued M-37069, restoring DOI’s authority to take land in Alaska into trust. The Biden administration later approved a land into trust acquisition for the Central Council of Tlingit and Haida Indian Tribes of Alaska—the second fee-to-trust acquisition in Alaska since Congress’ enactment of the ANCSA—and promulgated a rule, Land Acquisitions, to formally codify the agency’s authority. 

The Trump administration’s M-37087 now reverses Solicitor Anderson’s opinion and reestablishes the prohibition on fee-to-trust acquisitions in Alaska.

Immediate Implications and Next Steps

The Trump administration’s decision highlights the continued uncertainty surrounding tribal land ownership and sovereign control in Alaska and may foreshadow future policies with narrower interpretations of federal trust obligations in Indian Country.

For now, new fee-to-trust applications in Alaska will be rejected and any active applications will not progress while M-37087 is in place. DOI will begin a rulemaking process to formally codify the agency’s land acquisition regulations and prohibition of land into trust acquisitions in Alaska. In this forthcoming rulemaking, DOI could elect to amend other aspects of the agency’s land acquisition regulations—in both Alaska and the lower 48 states. In the interim, tribes should monitor DOI’s rulemaking process and potential litigation. Brownstein’s American Indian Law & Policy team can assist tribes with questions and concerns.

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THIS DOCUMENT IS INTENDED TO PROVIDE YOU WITH GENERAL INFORMATION REGARDING DOI fee-to-trust acquisitions in Alaska. THE CONTENTS OF THIS DOCUMENT ARE NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THIS DOCUMENT OR IF YOU NEED LEGAL ADVICE AS TO AN ISSUE, PLEASE CONTACT THE ATTORNEYS LISTED OR YOUR REGULAR BROWNSTEIN HYATT FARBER SCHRECK, LLP ATTORNEY. THIS COMMUNICATION MAY BE CONSIDERED ADVERTISING IN SOME JURISDICTIONS.