On December 23, 2014, the Department of Interior (DOI) published a final rule in the FEDERAL REGISTER that eliminates 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 the Alaska Native Claims Settlement Act (ANCSA) operated in a manner to “remove all Native lands in Alaska from trust status.” The final rule is attached and can be found at http://www.gpo.gov/fdsys/pkg/FR-2014-12-23/pdf/2014-30099.pdf
As the final rule discusses at some length, recent events have led the Department 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 final rule discusses is the discretionary aspect of the land-into-trust approval process, and that while there would be no categorical exclusion for land-into-trust in Alaska, it would still be governed by the broad discretion the Department has to approve or deny those applications.
The final rule acknowledges that there is ongoing litigation in the Akiachak case, but notes that the most recent ruling in that case was the court 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 final rule also acknowledges the public safety/tribal justice benefits of trust land in Alaska, citing the November 2013 Report by the Indian Law and Order Commission. That Report similarly concluded that having trust land in Alaska was important, focusing 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 final rule addresses many of the issues raised in the comments to the proposed rule—and essentially notes that the Secretary’s discretion in approving or not approving applications will be on a case by case basis, thus eliminating the need to lay out answers to every question at this stage. The DOI acknowledges that it has experience dealing with split estates on lands (where ownership for subsurface rights is different than the surface owner), and notes that the dominant right is generally in the owner of the subsurface estate. The final rule notes that the process for applications will follow the existing regulations and Departmental Handbook, and applications will be allowed for both tribes and Alaska Native individuals.
Passage of this final rule raises interesting questions and opportunities for implementation by tribes in Alaska. Please let us know if we may provide additional information regarding Department of Interior’s final rule that eliminates the “Alaska Exception” from the land-into-trust regulations found at 25 C.F.R. Part 151.