TRIBAL GAMING
The land into trust process was generally created in response to the devastating effects of the Dawes Act, also known as the General Allotment Act (“GAA”). 2 Passed in 1887, the GAA divided tribal lands, allotted parcels to individual tribal members, and provided for the public sale of any surplus tribal lands remaining after allotment. This led to many negative and harmful consequences, including the dramatic reduction of land ownership by Native American tribes in both the lower 48 states and Alaska. 3 In 1934, Congress enacted the Indian Reorganization Act (“IRA”), which for practical purposes, terminated the allotment system. 4 Years later, in 1980, the DOI established regulations governing the land to trust process in an effort to help tribes regain lost lands and promote tribal self-determination. 5 Through the DOI trust process, tribes have the ability to establish a land base for tribal communities, reacquire lands within or near their reservations, and clarify jurisdiction over their lands. 6 Acquiring land into trust also helps to maximize a tribe’s eligibility for federal services and programs, including opportunities for gaming. Most tribal lands in the United States are currently held as trust lands. Alaska legislative and administrative history On November 16, 2022, the DOI Solicitor issued Opinion M-37076 (“2022 Opinion”), clarifying that the DOI Secretary does in fact have authority to acquire land into trust within the State of Alaska. 7 The next day, the DOI Assistant Secretary for Indian Affairs announced the approval of a land into trust acquisition for the Central Council of Tlingit and Haida Indian Tribes of Alaska. 8 The acquisition on behalf of the Tlingit and
Haida Tribes is only the second land into trust acquisition in Alaska since the passage of the 1971 Alaska Native Claims Settlement Act (“ANCSA”), and the first acquisition in five years. The acquisition is significant because the DOI had historically maintained that it lacked authority to acquire trust lands in Alaska, based on the ANCSA and a hodgepodge of federal statutes including the IRA and Alaska Indian Reorganization Act (“Alaska IRA”). 9 It was not until recently that the DOI changed its course. To understand how this change will likely impact tribal gaming in Alaska, the convoluted history of the IRA and Alaska IRA are briefly discussed below. Congress enacted the IRA in 1934, in part, to establish an opportunity for tribes to assume a greater degree of self- government, both politically and economically, by allowing conservation and development of Indian Lands through the land into trust process. Section 5 of the IRA generally authorizes the DOI Secretary to acquire land into trust across the United States. 10 However, confusion over the Secretary’s ability to acquire land into trust specifically within Alaska has plagued interpretation of the IRA from the beginning. Originally, Section 5 of the IRA authorized the Secretary to acquire land into trust for “Indians” and provided that, for the purposes of the IRA, Eskimos and other aboriginal people of Alaska are considered “Indians.” At the same time, however, the IRA was explicitly inapplicable to any U.S. Territory, which at the time included Alaska. Two years later, in 1936, Congress enacted the Alaska IRA to correct these perceived inconsistencies within the IRA. 11 The Alaska IRA extended the trust authority codified in IRA Section 5 to the Territory of Alaska. However, once Alaska
2 See South Dakota v. Yankton Sioux Tribe , 522 U.S. 329, 333 (1998). 3 U.S. Department of the Interior, Office of Indian Economic Development, Benefits of Trust Land Acquisition, https://www.bia.gov/service/ trust-land-acquisition/benefits-trust-land-acquisition. 4 Carcieri v. Salazar, 555 U.S. 379, 382 (2009). 5 Land Acquisitions, 45 Fed. Reg. 62034 (Sept. 18, 1980). 6 U.S. Department of the Interior, Indian Affairs, Benefits of Trust Land Acquisition, https://www.bia.gov/service/trust-land-acquisition/bene- fits-trust-land-acquisition. 7 Robert T. Anderson, Solicitor Opinion M-37076, “The Secretary’s Land into Trust Authority for Alaska Natives and Alaska Tribes Under the Indi- an Reorganization Act and the Alaska Indian Reorganization Act” (Nov. 16, 2022). 8 U.S. Department of the Interior, Indian Affairs, Indian Affairs to accept land into trust for Tlingit and Haida Indian Tribes of Alaska, https://
www.bia.gov/news/indian-affairs-accept-land-trust-tlingit-and-haida-indian-tribes-alaska (Nov. 17, 2022). 9 Kyle E. Scherer, Alaska’s Tribal Trust Lands: A Forgotten History, 38 Alaska L. Rev. 37, 38 (June 2021). 10 Anderson, Solicitor Opinion M-37076 at 6. 11 See 25 U.S.C. § 5119.
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IMGL MAGAZINE | JANUARY 2023
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