In the Indian Gaming Regulatory Act, the term “Indian lands” is defined similarly by reference to Indian reservations, trust or restricted land, and tribal jurisdiction: The term “Indian lands” means— (A) all lands within the limits of any Indian reservation; and (B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power. Thus, Indian tribes have inherent sovereign authority over their members and their territory. California v. Cabazon , 480 U.S. 202 (1987) (the Supreme Court “consistently recognized that Indian tribes retain ‘attributes of sovereignty over both their members and their territory’”). Indian country and Indian lands, including fee lands pending application for Indian trust or restricted status, form the territory of Indian tribes and should be used as the basis for the CARES Act Coronavirus Tribal Relief Fund. ANC Corporate Fee Lands are Subject to State Jurisdiction and Are Not “Indian Lands” The Supreme Court addressed the issue of ANCSA lands in Alaska v. Native Village of Venetie , 522 U.S. 520 (1998). The Supreme Court explained: In enacting ANCSA, Congress sought to end the sort of federal supervision over Indian affairs that had previously marked federal Indian policy. ANCSA’s text states that the settlement of the land claims was to be accomplished “without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions , rights, privileges, or obligations, [and] without creating a reservation system or lengthy wardship or trusteeship. ” [43 U.S.C.] §1601(b) (emphasis added). To this end, ANCSA revoked “the various reserves set aside . . . for Native use” by legislative or Executive action, except for the Annette Island Reserve inhabited by the Metlakatla Indians, and completely extinguished all aboriginal claims to Alaska land. §§1603, 1618(a). In return, Congress authorized the transfer of $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations that were to be formed pursuant to the statute; all of the shareholders of these corporations were required to be Alaska Natives. §§1605, 1607, 1613. The ANCSA corporations received title to the transferred land in fee simple, and no federal restrictions applied to subsequent land transfers by them. Id . at 523-524. Alaska Native Corporation fee lands are subject to state jurisdiction and are not Indian lands, as the Supreme Court held in Alaska v. Native Village of Venetie . ANC fee lands “are neither ‘validly set apart for the use of the Indians as such,’ nor are they under the superintendence of the Federal Government.” 522 U.S. at 532. Because ANC fee lands are under the jurisdiction of the State of Alaska per Federal law (ANCSA) and state law, Treasury would be double counting if they included ANC fee lands in their calculation of CRF Tribal Government funding. The State of Alaska received funding from the Coronavirus Relief Fund to provide services to the lands it governs.
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