One year ago this week, the Interior Department’s top lawyer instigated a sharp debate over tribal lands in Alaska with a prediction that a final answer could be forthcoming in 12 months.
Which means, in theory, just about now.
But instead, Principal Deputy Solicitor Daniel Jorjani faces a politically sensitive challenge just as he awaits a Senate vote on his nomination to be solicitor and Alaska state officials remain at odds with some Alaska Native groups on the land-into-trust issue.
Consequently, a review period that’s included written comments and eight transcribed public meetings may go on longer, even as officials and tribal members eagerly await Jorjani’s next call.
At issue is whether the Interior Department has the authority to acquire land into trust for Alaska Natives, meaning the federal government holds the legal title to land for the benefit of a Native person or tribe. An Obama-era legal opinion concluded Interior does have the authority to take land into trust for Alaska Natives — a change from previous interpretations of the law.
But last June 29, Jorjani withdrew the prior Alaska land-into-trust opinion and called for further review (Greenwire, July 5, 2018).
"I believe that [allowing land into trust] will strengthen the economic opportunities for our tribes," Steve Ginnis, chief of the Gwichyaa Zhee Gwich’in tribal government, said at a July 26, 2018, hearing brought on by Jorjani’s decision. "We have high unemployment in our communities, in all of our villages … and I think it will give us that additional opportunity for economic development."
The question is different for Alaska Natives than for tribes in the Lower 48 because of the 1971 Alaska Native Claims Settlement Act (ANCSA), designed to settle all land claims by Alaska Natives. The law authorized the transfer of approximately 44 million acres of Alaska land to regional and village Native corporations that were to be formed.
"Acquiring new lands in trust in Alaska was foreclosed by ANCSA and is not in Alaska’s best interests," Alaska Attorney General Kevin Clarkson (R) wrote last January, adding that the 1971 law "extinguished the right to petition for trust lands."
Clarkson further warned that "accepting land-into-trust may impede access to natural resources and stall developing statewide infrastructure" and that "enclaves of tax-free land may compromise the state and local governments’ ability to provide public services."
Alaska state Sen. John Coghill, a senior Republican, echoed the concerns about potential consequences for the state’s taxation and regulatory authorities.
"Powerful, political factors run deep," Coghill wrote, adding that "there are still many in Alaska that look for the administration, and the federal department, to follow the rule of law."
Daniel Cheyette, vice president for lands and natural resources for the Bristol Bay Native Corp., countered that Interior’s authority to take land into trust in Alaska can promote tribal self-governance, self-sufficiency and economic opportunities.
"The Department must nevertheless implement this authority in a way that protects the existing interests of Alaska’s Native corporations who are the largest private land owners in the state," Cheyette wrote.
The Arctic Slope Regional Corp. likewise voiced support for allowing land to be taken into trust, with modifications to the standard processes to "better suit the unique nature of indigenous lands in Alaska."
The Senate Energy and Natural Resources Committee is scheduled to consider Jorjani’s nomination as solicitor Wednesday. Panel Democrats appear poised to oppose him, with several noting his withdrawing prior Interior legal opinions.
"While legal precedent is given considerable weight in American jurisprudence, it is not irrefutable," Jorjani wrote in response to a senator’s written question.