On July 27, 2023 (text released on August 3), Senator Lisa Murkowski and Senator Dan Sullivan introduced S.2615, which would amend the Alaska Native Claims Settlement Act to provide that Alaska Native Village Corporations will no longer be required to convey land in trust to the State of Alaska for the establishment of Municipal Corporations, and for other purposes. This is an important piece of legislation for Alaska Native Village Corporations because it will free up land owned by the Village Corporation for development.

ANCSA authorized the establishment of Village Corporations, and over two hundred and fifty Village Corporations were eventually incorporated, one for each Native Village with more than twenty-five Alaska Native residents. The federal government then conveyed approximately 45 million acres of surface estate to the Village Corporations, including surface estate of land in and around their Native Villages. The surface estate conveyed to the Village Corporations had a string attached. Section 14(c)(3) of ANCSA requires Village Corporations to convey to the local government for the Native Village, or to the State of Alaska in trust for a local government that may be established in the future, “title to the remaining surface estate of the improved land on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs.”

The obligation to make these conveyances referred to as 14(c)(3) conveyances in reference to the applicable subsection of ANCSA continues to be an issue for Village Corporations fifty years after the enactment of ANCSA. While Village Corporations do not have to convey more than 1,280 acres to the local government (or the State of Alaska in trust for a future local government), some Village Corporations have not completed their 14(c)(3) conveyance obligations. More problematically, the land conveyed to the State in trust for a local government to be established in the future is intended to be used by a new first or second-class city. First and second-class cities in Alaska must meet the following requirements:

• the boundaries of the proposed city include all areas necessary to provide municipal services on an efficient scale;
• the economy of the community includes the human and financial resources necessary to provide municipal services;
• the population of the community is stable enough to support the city government; and
• there is a demonstrated need for city government.

First-class cities must additionally have 400 or more permanent residents.

Given these requirements, for many remote Alaska communities, it is unlikely they will ever meet the criteria for the creation of a first or second-class city. Accordingly, many Village Corporations have conveyed land to the State in trust for a new local government in areas where the establishment of a first or second-class city will not occur, or at least is exceedingly unlikely to ever occur. This means that, functionally, some Village Corporations have conveyed their land to the State to support a local government that will never be established.

If passed, S.2615 will require the State of Alaska to reconvey to Village Corporations land held by the State in trust for a new local government, if the local government is not in place at the time that S.2615 is enacted. The proposed legislation amends Section 14(c)(3) of ANCSA to add the following provision:

(iv) CASES IN WHICH CONVEYANCE SHALL NOT BE REQUIRED.—

(I) IN GENERAL.—Notwithstanding any other provision of this subparagraph, if a Village Corporation, prior to the date of enactment of the Alaska Native Village Municipal Lands Restoration Act of 2023, conveyed to the State in trust all or a portion of the acreage of land required to be conveyed under this subparagraph for the establishment of a Municipal Corporation in the future, and a Municipal Corporation has not been established as of that date of enactment, on formal resolution by the Village Corporation and the residents of the Native village requesting dissolution of the trust, the trust shall be dissolved and title to the land shall revert to the Village Corporation, subject to subclause (III).

(II) ADDITIONAL LAND.—Notwithstanding any other provision of this subparagraph, as of the date of enactment of the Alaska Native Village Municipal Lands Restoration Act of 2023, a Village Corporation shall not be required to convey any additional land in trust under this subparagraph for the establishment of a Municipal Corporation in the future.

(III) REQUIREMENTS.—In accordance with subsection (g)—

(aa) the reversion of land to a Village Corporation pursuant to subclause (I) shall be subject to—

“(AA) valid existing rights created by the applicable trust; and

“(BB) any existing easements, rights-of-way necessary for public roadway access, or rights-of-way for access of holders of valid existing rights; and

(bb) the Village Corporation shall assume the obligations of the applicable trust with respect to any lease or other use agreement applicable to the land on reversion of the land to the Village Corporation pursuant to subclause (I).

For Village Corporations that have conveyed land to the State in trust for a local government that has not been established, or that have not completed their 14(c)(3) conveyances, S.2615 is an important step towards obtaining full control over their traditional land, and eliminating requirements that, fifty years after ANCSA’s passage, are no longer necessary.

While S.2615 would result in the conveyance of land back to some Village Corporations, those Village Corporations will have to take the land back subject to any leases, easements, or other rights granted by the State to third parties while the land was held in trust by the State. S.2615 states that “the Village Corporation shall assume the obligations of the applicable trust with respect to any lease or other use agreement applicable to the land on reversion of the land to the Village Corporation….” While this could result in a benefit to a Village Corporation, in the form of, for example, lease payments that had been made to the State by third parties who are using the land, it could also impose obligations on Village Corporations that they may not have anticipated, such as having to provide access to their land to third parties, based on agreements entered into by the State. Accordingly, Village Corporations will have to be prepared to potentially assume some additional obligations if S.2615 is enacted and 14(c)(3) land is conveyed back to the Village Corporations.

Below is a comparison showing how Section 14(c) of ANCSA would be revised by S.2615:

(c) Patent requirements; order of conveyance; vesting date; advisory and appellate functions of Regional Corporations on sales, leases, or other transactions prior to final commitment Conveyance of Certain Land By Village Corporation.

(1) IN GENERAL. – Each patent issued pursuant to subsections (a) and (b) shall be subject to the requirements of this subsection. Upon receipt of a patent or patents:

(1)(A) tThe Village Corporation shall first convey to any Native or non-Native occupant, without consideration, title to the surface estate in the tract occupied as of December 18, 1971 (except that occupancy of tracts located in the Pribilof Islands shall be determined as of the date of initial conveyance of such tracts to the appropriate Village Corporation) as a primary place of residence, or as a primary place of business, or as a subsistence campsite, or as headquarters for reindeer husbandry.

(2)(B) tThe Village Corporation shall then convey to the occupant, either without consideration or upon payment of an amount not in excess of fair market value, determined as of the date of initial occupancy and without regard to any improvements thereon, title to the surface estate in any tract occupied as of December 18, 1971 by a nonprofit organization.

(3)(C) the Village CorporationCONVEYANCE TO MUNICIPAL CORPORATION OR THE STATE IN TRUST.

(i) IN GENERAL.—The Village Corporation shall then convey to any Municipal Corporation in the Native village or to the State in trust for any Municipal Corporation established in the Native village in the future, title to the remaining surface estate of the improved land on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs. : Provided, That the

(ii) MINIMUM ACREAGE.—The amount of lands to be transferred to the Municipal Corporation or in trust shall be no less than 1,280 acres unless the Village Corporation and the Municipal Corporation or the State in trust can agree in writing on an amount which is less than 1,280 acres.one thousand two hundred and eighty acres: Provided further, That any net

(iii) NET REVENUES.—

(I) IN GENERAL.—Any net revenues derived from the sale of surface resources harvested or extracted from lands reconveyed pursuant to this subsection shall be paid to the Village Corporation by the Municipal Corporation or the State in trust: Provided, however, That the word “sale”, as used in the preceding sentence, in trust.

(II) DEFINITION OF SALE.—For purposes of subclause (I), the term ‘sale’ shall not include the utilization of surface resources for governmental purposes by the Municipal Corporation or the State in trust, nor shall it include the issuance of free use permits or other authorization for such purposes.

(iv) CASES IN WHICH CONVEYANCE SHALL NOT BE REQUIRED.—

(I) IN GENERAL.—Notwithstanding any other provision of this subparagraph, if a Village Corporation, prior to the date of enactment of the Alaska Native Village Municipal Lands Restoration Act of 2023, conveyed to the State in trust all or a portion of the acreage of land required to be conveyed under this subparagraph for the establishment of a Municipal Corporation in the future, and a Municipal Corporation has not been established as of that date of enactment, on formal resolution by the Village Corporation and the residents of the Native village requesting dissolution of the trust, the trust shall be dissolved and title to the land shall revert to the Village Corporation, subject to subclause (III).

(II) ADDITIONAL LAND.—Notwithstanding any other provision of this subparagraph, as of the date of enactment of the Alaska Native Village Municipal Lands Restoration Act of 2023, a Village Corporation shall not be required to convey any additional land in trust under this subparagraph for the establishment of a Municipal Corporation in the future.

(III) REQUIREMENTS.—In accordance with subsection (g)—

(aa) the reversion of land to a Village Corporation pursuant to subclause (I) shall be subject to—

(AA) valid existing rights created by the applicable trust; and

(BB) any existing easements, rights-of-way necessary for public roadway access, or rights-of-way for access of holders of valid existing rights; and

(bb) the Village Corporation shall assume the obligations of the applicable trust with respect to any lease or other use agreement applicable to the land on reversion of the land to the Village Corporation pursuant to subclause (I).

(4)(D) tThe Village Corporation shall convey to the Federal Government, State, or to the appropriate Municipal Corporation, title to the surface estate for airport sites, airway beacons, and other navigation aids as such existed on December 18, 1971, together with such additional acreage and/or easements as are necessary to provide related governmental services and to insure safe approaches to airport runways as such airport sites, runways, and other facilities existed as of December 18, 1971.

(5)(E) fFor a period of ten years after December 18, 1971, the Regional Corporation shall be afforded the opportunity to review and render advice to the Village Corporations on all land sales, leases or other transactions prior to any final commitment.

(2) TECHNICAL ASSISTANCE.

(A) IN GENERAL. There is are authorized to be appropriated such sums as may be necessary for the purpose of providing technical assistance to Village Corporations established pursuant to this chapter in order that they may fulfill the reconveyance requirements of this subsection.

(B) FORM OF FUNDING. The Secretary may make funds available as grants to ANCSA or nonprofit corporations that maintain in-house land planning and management capabilities.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice, contact an attorney.