A New Solicitor Opinion Revisits Tribal Jurisdiction Over Alaska Native Allotments

By Heidi McNeil Staudenmaier and Kelsey Haake

In the complex landscape of Indigenous rights and jurisdiction, the question of tribal authority over Alaska Native allotments has long been a subject of legal debate. The recent Opinion known as Partial Withdrawal of Solicitor’s Opinion M-36975, Governmental Jurisdiction of Alaska Native Villages Over Land and Nonmembers, and Clarification of Tribal Jurisdiction Over Alaska Native Allotments (Opinion)¹ delves into the evolving discourse surrounding the jurisdictional boundaries of federally recognized tribes in Alaska over Alaska Native allotments. United States Department of the Interior Solicitor Robert Anderson critically evaluates the previous 1993 opinion of then Solicitor Thomas Sansonetti (Sansonetti Opinion)² regarding a similar matter and clarifies why Sansonetti’s conclusions may no longer hold sway considering subsequent legislative enactments and legal developments.

The crux of the Sansonetti Opinion revolves around the assertion that Alaska Native allotments do not fall under the jurisdictional boundaries of Alaska Native villages, rather that the State of Alaska holds authority over those lands. Sansonetti’s conclusion originally was supported by several findings, which included the absence of tribal membership as a prerequisite for receiving an allotment, the non-reservation origins of these allotments, and the purported lack of a land base for Alaska Native villages.

Despite its initial prominence, the Sansonetti Opinion has encountered significant scrutiny in various legal analyses since its issuance more than 30 years ago. Predominantly, the Sansonetti Opinion argued that the interpretation of the Alaska Native Allotment Act (ANAA) lacks textual support, fails to align with congressional intent, and does not require tribal enrollment to be eligible for Native allotments. 

Sansonetti points out that the ANAA refers to Native allotments as “the homestead of the allottee and his heirs.” However, Solicitor Anderson writes that this verbiage does not preclude Alaska Native tribal jurisdiction over these allotments. He reiterates that Sansonetti’s attempted analogy between the ANAA and the general Indian homestead act is unpersuasive. Moreover, Solicitor Anderson further contends the analogy may be considered incomparable because the homestead allotment act allows Indians to “receive allotments under the general allotment statutes.” Rather, Solicitor Anderson asserts the ANAA, “does not reference homestead laws or suggest any intent to bring ANAA allotments within the distinct legal framework governing homesteads” and thus would not fall under the Indian homestead act.  

Solicitor Anderson also references the legislative history of the ANAA, which suggests the intention to treat Alaska Native allotments akin to those tribes governed by the General Allotment Act (GAA). Essentially, Solicitor Anderson opines that Sansonetti’s reasoning lacks statutory support in his conclusions because Congress passed the ANAA to “extend the same tribal benefits and privileges” to Alaska Natives that the GAA provides to federally recognized tribes in the contiguous United States. The GAA established that tribes in the lower 48 have jurisdiction over individual tribal allotments.

While the Sansonetti Opinion emphasizes the absence of a reservation framework in Alaska – which is predominant in the lower 48 states – Solicitor Anderson writes that the historical origins of allotments are irrelevant in determining tribal jurisdiction. Courts have increasingly affirmed tribal authority over both tribal members and territories, regardless of reservation status. Solicitor Anderson also notes that additional administrative developments since the Sansonetti Opinion imply a presumption favoring tribal jurisdiction over off-reservation allotments which does not depend on past or current reservation status – in essence, confirming that reservation status is irrelevant when determining jurisdictional boundaries. 

Recent legislative enactments, notably the Violence Against Women Reauthorization Act of 2022, have explicitly recognized the inherent authority of Alaska tribes to assert territorial jurisdiction within their boundaries, including allotment areas. Additionally, legal amendments such as the Privileges and Immunities Amendment of 1994, undermine the distinctions drawn in the Sansonetti Opinion. Under the Privileges and Immunities Amendment, Congress is required to state its intention to restrict the territorial jurisdiction clearly and concisely for Alaska Native tribes. Since such direction has never explicitly been provided, the Sansonetti Opinion is at odds with the Privileges and Immunities Amendment. Ultimately, both legislative developments undercut the Sansonetti Opinion's examination of tribal jurisdiction over Alaska Native allotments. These new legislative acts provide a statutory basis for tribes in Alaska to assert jurisdiction over Alaska Native allotted lands.

The new Opinion advocates that, in light of these new legislative and related developments, it is imperative to reevaluate the conclusions of the Sansonetti Opinion regarding tribal jurisdiction over Alaska Native allotments. On this basis, Solicitor Anderson withdraws portions of the Sansonetti Opinion addressing “the existence or extent of tribal jurisdiction over Native Allotments and clarify[ies] that [Alaska] Native Allotments are subject to the same legal principles governing allotments in the lower 48 states.” 

The recent Opinion seeks to clearly direct that (1) tribes have jurisdictional authority over Alaska Native Allotments; and (2) Alaska Native jurisdiction should be viewed as comparable to other tribes in the contiguous United States. Despite Sansonetti’s Opinion suggesting Alaska Native allotments may be an exception to this rule, Solicitor Anderson writes that Congress did not intend to divest Alaska Native tribes of their jurisdictional powers when enacting the ANAA. Instead, he concludes that Alaska Native allotments are subject to the same legal principles as other Native allotments in the lower 48 states where tribes are presumed to have jurisdiction over lands designated as Indian Country.

In the new Opinion, Solicitor Anderson establishes a presumption of tribal jurisdiction over Alaska Native allotments. This presumption can be rebutted if the allotment is owned by a non-tribal member or lacks a clear relationship with the tribe claiming jurisdiction. To maintain tribal jurisdiction, the Alaska Native tribal member must own the allotment, maintain a political connection with the tribe, and the allotment must be in close geographic proximity to the tribal community. 

The evolving legal landscape surrounding tribal jurisdiction over Alaska Native allotments stresses the dynamic nature of Alaska Native tribal rights. Solicitor Anderson’s Opinion seemingly strengthens Alaska Native Sovereignty and Alaska Native’s ability to control and determine their own path in terms of jurisdictional boundaries of their tribal member allotments.  

Footnotes 

1. Robert Anderson, Partial Withdrawal of Solicitor’s Opinion M-36975, Governmental Jurisdiction of Alaska Native Villages Over Land and Nonmembers, and Clarification of Tribal Jurisdiction Over Alaska Native Allotments (Feb. 1, 2024). ["Anderson Opinion"] [Back]

2. Thomas L. Sansonetti, Solicitor Opinion M36975, Governmental Jurisdiction of Alaska Native Villages Over Land and Nonmembers (Jan. 11, 1993) [”Sansonetti Opinion”]. [Back]