Interior Proposes Alaska Tribal Land Trusts

Reversing decades of federal policy, Assistant Secretary for Indian Affairs Kevin K. Washburn recently announced a proposal that would allow Alaska's 228 Native American tribes to petition to have land taken into trust. Washburn said the public will have 60 days to comment on the proposal.

On April 30, Assistant Secretary for Indian Affairs Kevin K. Washburn announced the Department of the Interior would allow the Secretary of Interior to begin considering petitions from Alaska’s 228 Native American tribes to take land into trust for them. The proposed policy reverses decades of policy under Republican and Democratic administrations. Washburn said the public would have 60 days to comment and a series of tribal consultations also would occur before Interior would finalize its decision.

Washburn said, “Acquiring land in trust is one of the most important functions that the Department of the Interior undertakes on behalf of tribes. Restoring tribal lands to trust status is essential to ensure cultural preservation, self-determination and self-governance and to advance the social and economic development of tribal communities.”

Heather Kendall-Miller, a lawyer with the Native American Rights Fund, said, “Alaska Native tribes have been waiting for this for a long time. This is a pretty big shift in policy. The federal government is now recognizing and acknowledging that its trust responsibility to tribes in Alaska is identical to those in the lower 48.”

For nearly 20 years, Kendall-Miller has fought court battles over Interior’s previous interpretations of the Alaska Native Claims Settlement Act of 1971, the basis for earlier decisions not to take lands into trust for Alaska tribes.

Kendall-Miller said two recent developments led Interior officials to change their interpretation. First, in the past year, both the Indian Law and Order Commission and the Secretarial Commission on Indian Trust Administration and Reform recommended that the prohibition on trust lands in Alaska be removed to reduce negative outcomes for Alaska Natives. Second, in a legal case known as Akiachak Native Community v. Salazar, the U.S. District Court in Washington, D.C. in 2013 ruled that the Secretary of the Interior has statutory authority to take land into trust for Alaska tribes.

U.S. Senator Mark Begich said he strongly supports the new provision.

“We look at this as a positive step. This just gives tribes new opportunities to have their lands put into trust and to have more self-determination and opportunities for economic development, social justice and public safety.” Matthew Felling, a spokesman for U.S. Senator Lisa Murkowski said she and her staff are “still closely examining the DOI proposal” on trust lands. She and U.S. Rep. Don Young have said they have questions about the proposal. Begich said, “I think once they read it as we have, they will not see a threat to the incredible piece of legislation that is ANSCA.”

Begich noted he expects the state of Alaska to fight the rule change, since the current administration has opposed many tribal issues. But the D.C. District Court already has ruled that there is nothing in ANSCA that should prevent Interior from taking lands into trust for Alaska tribes. And, according to tribal law experts, in cases of land disputes between tribes and corporations, federal policies exist that helped settle similar disputes involving tribes in the lower 48 states.

“There is not going to be an immediate cluster of tribal trust lands throughout Alaska in the immediate next one to five years. But, in the end, Alaska Native tribes will not continue to be treated as the ugly stepchildren or odd men out here. They are federally recognized tribes, and they are entitled to be treated the same,” Kendall-Miller said.