GM 14-036

DOI Proposes Rule to Eliminate the "Alaska Exception" to Taking Land into Trust

On May 1, 2014, the Department of the Interior (DOI) published the attached Proposed Rule in the FEDERAL REGISTER that would eliminate the “Alaska Exception” from the land-into-trust regulations found at 25 C.F.R. Part 151. The so-called “Alaska Exception” was added to these regulations in 1980, following a 1978 Associate Solicitor for Indian Affairs opinion that concluded, in part, that the enactment of Alaska Native Claims Settlement Act (ANCSA) operated in a manner to “remove all Native lands in Alaska from trust status.” Comments are due by June 30, 2014.

As the Proposed Rule discusses at some length, recent events have led the Department of the Interior to conclude that the Indian Reorganization Act, which authorizes land being taken into trust for tribes, did not include an Alaska Exception, nor has the enactment of subsequent law (including ANCSA) created an Alaska Exception. What the DOI discusses in the Proposed Rule is the discretionary aspect of the land-into-trust approval process, noting that while there would be no categorical exclusion for land-into-trust in Alaska, it would still be governed by the broad discretion the DOI has to approve or deny those applications.

Recent events have led up to this Proposed Rule, including the District Court decision in the Akiachak case, affirming the DOI’s right to take land into trust in Alaska. Akiachak Native Cmty. v. Salazar, 935 F. Supp. 2d 195, 197 (D.D.C. 2013). The November 2013 Report by the Indian Law and Order Commission similarly concluded that having trust land in Alaska was important, focusing in on the link between tribal trust land and tribal capacity to provide for community public safety. A Roadmap for Making Native America Safer: Report to the President and Congress of the United States, at 45, 52 (Nov. 2013).

The Proposed Rule lays out several options for submitting comments—by the federal rulemaking portal, by email, by mail, and by hand delivery. We expect substantial interest from various groups on this Proposed Rule. Please let us know if we may provide additional information or assistance in preparing comments.