TRIBAL GAMING
became an official state in 1959, uncertainty arose again over the applicability of both the IRA and Alaska IRA to the State of Alaska (as opposed to the Territory of Alaska), and the DOI took the position that it lacked authority to acquire trust lands in Alaska. 12 Because of this, almost none of the 229 federally recognized tribes in Alaska have ever held “trust-status” land. 13 After decades of uncertainty, in January 2017, then-Solicitor for the DOI Hilary C. Tompkins published an Opinion (“2017 Opinion”) which concluded that Section 5 of IRA, as applied to Alaska through the Alaska IRA, authorized the Secretary to accept land into trust for Alaskan Native Tribes and individuals. 14 This clarification was short-lived because, in June 2018, her successor as DOI Solicitor Daniel H. Jorjani temporarily withdrew the 2017 Opinion while he investigated the Secretary’s authority for future trust acquisitions in Alaska. 15 On January 19, 2021, one day before President Joe Biden’s inauguration, then-Solicitor Jorjani permanently withdrew the 2017 Opinion and published a new Opinion (“2021 Opinion”), addressing the Secretary’s authority to acquire land into trust
in Alaska. The 2021 Opinion asserted the 2017 Opinion’s legal conclusion that the Secretary is authorized to take land into trust in Alaska was flawed because it did not address the possible effect of the Statehood Act and the ANCSA upon the Secretary’s authority. For almost two years it appeared that the DOI would maintain this position precluding land into trust acquisitions in Alaska. 16 The recent 2022 Opinion serves as a withdrawal of the 2021 Opinion. The 2022 Opinion concluded that Alaska’s statehood did not alter the applicability of the IRA to Alaska Natives and tribes. The 2022 Opinion further concluded that none of the concerns raised in the 2021 Opinion, mainly the issue of ANCSA applicability, affects the scope of the Secretary’s authority to acquire land into trust under the IRA and Alaska IRA. Impact On tribal gaming Due to the complicated history of Alaska and the land into trust process, gaming in Alaska has been very limited since the passage of the IGRA, in contrast to the lower 48 states. 17
12 Alaska’s Tribal Trust Lands: A Forgotten History, 38 Alaska L. Rev. at 38. 13 See Meghan O’Connor, The Secretary of the Interior Has the Authority to Take Land into Trust for Federally Recognized Alaska Tribes, 45 Am. Indian L. Rev. 89, 96 (2021). 14 Hilary C. Tompkins, Solicitor Opinion M-37043, “Authority to Acquire Land into Trust in Alaska” (January 13, 2017). 15 Daniel H. Jorjani, Solicitor Opinion M-37053, “Withdrawal of Solicitor Opinion M-37043, ‘Authority to Acquire Land into Trust in Alaska’ Pending Review” (June 29, 2018). 16 Daniel H. Jorjani, Solicitor Opinion M-37064, “Authority to Acquire Land in Trust in Alaska” (January 19, 2021). 17 See, e.g., Letter from Montie R. Deer, Chairman, Nat’l Indian Gaming Comm’n, to Christopher A. Karns, Attorney, Dorsey & Whitney LLP (ap-
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IMGL MAGAZINE | JANUARY 2023
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