The Alaska Land Transfer Acceleration Act: Background and Summary

CRS Report for Congress
The Alaska Land Transfer Acceleration Act:
Background and Summary
January 14, 2005
Nathan Brooks
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

The Alaska Land Transfer Acceleration Act:
Background and Summary
On December 10, 2004, the President signed into law P.L. 108-452, the Alaska
Land Transfer Acceleration Act. The act represents an attempt to clear up the
conflicting land claims of three distinct parties in Alaska – the State, Alaska Native
Corporations, and Native allottees – in time for the fiftieth anniversary of Alaska’s
statehood in 2009. These claims are grounded in the Alaska Statehood Act, the
Alaska Native Claims Settlement Act, and the Native Allotment Act of 1906. This
report provides a background on these Acts, the claims they support, and a summary
of the provisions of the Alaska Land Transfer Acceleration Act.

In troduction ..................................................1
Background ..................................................1
The Alaska Land Transfer Acceleration Act.........................3
Title I...................................................3
Title II..................................................5
Title III..................................................8
Title IV..................................................9
Title V..................................................9
Title VI..................................................9

The Alaska Land Transfer Acceleration Act:
Background and Summary
On December 10, 2004, the President signed into law P.L. 108-452, the Alaska
Land Transfer Acceleration Act. The act represents an attempt to clear up the land
claims of various groups in Alaska in time for the fiftieth anniversary of Alaska’s
statehood in 2009. This report provides a background on these claims and a
summary of the act’s provisions.
The Alaska Statehood Act (“the Statehood Act”) was passed in 1958 and
allowed the State to select for ownership approximately 104 million acres of
unclaimed and unreserved federal land.1 Soon after passage of the Statehood Act,
however, Alaska natives began to challenge many of the State’s selections, arguing
that native lands were not available for State selection under the Statehood Act. In2
1969, the Ninth Circuit ruled in favor of the Alaska natives, making it difficult for
the State to continue the selection process without clarification as to the specific
boundaries of Alaska native lands. Congress attempted to resolve this problem in
1971 with the Alaska Native Claims Settlement Act3 (ANCSA), which was designed
to settle the aboriginal claims of the Alaska natives. ANCSA authorized the transfer
of over 45 million acres of land and the payment of nearly $1 billion to Alaska
The ANCSA approach to the native land transfers is unique in its reliance on the
corporate form. To manage the lands transferred to the Alaska natives, ANCSA
created two tiers of Native Corporations: the Village Corporations, of which there are
over 200; and the larger Regional Corporations, of which there are thirteen.4 A
Village Corporation files an application selecting certain lands and, if this application
is approved, then the Village Corporation is conveyed title to the surface estate, while
the Regional Corporation is generally conveyed title to the subsurface estate. The
conveyance process is similar to the state application process, in that the
Corporations first file applications for selections of land, which BLM then reviews
and, if approved, surveys, transfers, and issues a final patent to the land to the
appropriate Native Corporation.

1 P.L. 85-508 (72 Stat. 339). Alaska became a state the following year.
2 Alaska v. Udall, 420 F.2d 938 (9th Cir. 1969).
3 P.L. 92-203 (codified, as amended, at 43 U.S.C. §§ 1601-1629).
4 ANCSA granted natives 100 shares of the Village and Regional Corporations in which
they were enrolled.

The conveyance process has proven difficult to complete, due in large part to
complications in the surveying of lands. Neither the Statehood Act conveyance
process nor the ANCSA conveyance process has been completed. BLM estimates
that, of the 104.5 million acres to which the State is entitled under the Statehood Act,
BLM has completed the survey, transfer, and patent process for about 43 million
acres. An additional 47 million acres have been transferred, but the State is still
awaiting patent of those lands. This leaves 15 million acres on which, according to
BLM, the conveyance process has not even begun.5
BLM further estimates that, of the 45.6 million acres to which the Native
Corporations are entitled under ANCSA, BLM has issued final patents on
approximately 18 million acres. BLM has transferred an additional 19 million acres
that are still awaiting final patents. BLM officials say that they cannot complete the
survey and conveyance process on the remaining 8.4 million acres of land for a
variety or reasons, the primary one being that many of the Native Corporations have
overselected lands beyond their entitlements.6 The Native Corporations were
encouraged to do this so that they would receive their full entitlement even if certain
lands were not approved for transfer, but these overselections require BLM to
determine which of the overselected lands will be used to fulfill the Corporations’
Further complicating the land transfer process is the Native Allotment Act of
1906.7 Under this act, Alaska Natives were authorized to acquire individual
allotments of up to160-acre parcels of unreserved and unappropriated land. Alaska
Natives filed roughly 10,000 applications for 16,000 parcels of land before the
Allotment Act was repealed by ANCSA.8 In 1998, Congress passed the Alaska
Native Veterans Allotment Act,9 which allowed those Vietnam veterans who missed
the opportunity to apply for allotments under the 1906 Act the chance to do so. BLM
estimates that it still has pending applications for 3,256 acres of land under these two
Acts,10 all of which must be finalized before the State and ANCSA entitlements can
be filled.

5 See S. Hrg. 108-416, Alaska Native Subdivision Act; Alaska Land Transfer Facilities (sic)
Act; Ojito Wilderness Act; and Inventory and Management Program for Public Domain
Lands: Hearing Before the Subcommittee on Public Lands and Forests of the Committee onth
Energy and Natural Resources, United States Senate, 108 Cong., 14 (2003) [hereinafter
S. Hrg. 108-416] (prepared statement of Kathleen Clarke, Director, Bureau of Land
6 Id.
7 34 Stat. 197.
8 See S. Hrg. 108-163, Alaska Native Allotment Subdivision Act; Cape Fox Entitlement Act;
Alaska Land Transfer Acceleration Act: Hearing Before the Subcommittee on Public Landsth
and Forests of the Committee on Energy and Natural Resources, United States Senate, 108
Cong., 20 (2003) [hereinafter S. Hrg. 108-163] (testimony of Henri Bisson, State Director,
Bureau of Land Management, Department of the Interior).
9 43 U.S.C. § 1629g.
10 S. Hrg. 108-163, at 20 (testimony of Henri Bisson, State Director, Bureau of Land
Management, Department of the Interior).

The entitlements created by the Statehood Act, ANCSA, and the Native
Allotment Act have resulted in a tangled web of interests vying for a finite amount
of land -- land which also happens to be the subject of very bitter, long-running
disputes between environmental groups and private oil, timber, and mining interests.
In 2001, BLM came up with a plan to complete the land transfer process by 2020.
Many have expressed the strong desire, however, that the process be completed by

2009, the 50th anniversary of Alaska’s statehood. In order to meet this deadline,

BLM and the Department of the Interior requested legislative action to streamline a
process that has traditionally moved very slowly. The Alaska Land Transfer
Acceleration Act is Congress’s response.
The Alaska Land Transfer Acceleration Act
Title I. Title I represents an attempt to speed up the State selection process.
Under section 6(a) of the Statehood Act, the State is allowed to select 400,000 acres
of national forest land and 400,000 acres of other public lands, all adjacent to existing
communities. Approval authority for these community development grants is vested
in the Secretary of Agriculture for national forest lands and in the Secretary of the
Interior for all other public lands.11 The Statehood Act requires BLM to convey tracts
of at least 160 acres, but many pending applications for selections of public lands are
in violation of this minimum tract requirement. Further, because the statutory
application deadline has passed, these applications cannot be amended, giving the
Secretary of the Interior no alternative but to reject the applications.12 The act waives
the minimum tract requirement for five grant applications totaling almost 400
acres.13 In addition, the act approves any community grant applications for other14
public lands on file with the Interior Secretary on the date of enactment.
Many of the State’s current community grant selections are in areas likely to be
conveyed to ANCSA corporations, which could leave the State without sufficient
remaining selections to fulfill its community grant entitlement to 400,000 acres. To
remedy this problem, the act allows the State to convert selection applications from15
its much larger general entitlement under section 6(b) of the Statehood Act into
community grant selection applications.16 These 6(b) entitlements amount to more
than 102 million acres of vacant, unappropriated, and unreserved federal lands, and
cannot be selected from national forests.

11 P.L. 85-508, § 6(a) (note preceding 43 U.S.C. § 21).
12 This information was provided to the author in phone interviews with BLM officials.
13 P.L. 108-452, § 101(a). The five areas are: Yakutat Airport; Bear Valley (Portage); hyder-
Fish Creek; Elfin Cove; Edna Bay Admin Site; and Point Hilda. Id.
14 Id. See S. Hrg. 108-163, at 20 (testimony of Henri Bisson, State Director, Bureau of Land
Management, Department of the Interior).
15 P.L. 85-508, § 6(b) (72 Stat. 340).
16 P.L. 108-452, § 101(b).

When Congress enacted the Alaska National Interests Land Conservation Act17
(ANILCA) in 1980, Congress granted the State the ability to prioritize its selections.
The act clarifies the State’s responsibilities as to these prioritizations.18 Some of the
lands prioritized by the State have a reversionary interest vested in the United States,
as the statutes under which the lands were conveyed to the State require the federal
government to retain such an interest to ensure the lands are used consistent with the
respective purposes of the conveyances. The act allows the State to fulfill its land
entitlement by selecting these reversionary interests.19 This would have the effect of
removing the federal government’s control and oversight of these lands, and possibly
allowing development inconsistent with any surrounding federal lands. In testimony
before a Senate Subcommittee, a BLM official conceded that much of these lands are
within National Wildlife Refuges, but argued that the lands are generally adjacent to
towns and villages and are already developed in ways beneficial to the local
communities (e.g., they have schools or community centers built on them).20
Since the passage of ANILCA, the State has been allowed to fulfill its 6(a) and
6(b) entitlements by selecting lands that are presently withdrawn for some other
purpose but may become open for selection at a future date.21 The State is still
waiting for much of the land selected according to these so-called “top filings” to
become available. The act makes available eight parcels of land top-filed for
selection that were previously reserved for power projects or withdrawn as hot or
medicinal springs.22 The act excludes land within conservation system units
(CSUs)23 from availability under this provision.24
Congress in 1929 granted a 100,000-acre land entitlement to the University of
Alaska,25 but disputes abound as to just how much land remains to be conveyed under
this entitlement. The act sets the remaining entitlement at 456 acres, and allows the
State, on behalf of the University, to fulfill the University’s entitlement by selecting
mineral interests in land, the unreserved portion of which is held by the University,

17 P.L. 96-487 (codified, as amended, at 16 U.S.C. § 3101 et seq; 43 U.S.C. §§ 1631-1641).
18 P.L. 108-452, § 102.
19 Id. at § 103.
20 S. Hrg. 108-163, at 20 (2003) (testimony of Henri Bisson, State Director, Bureau of Land
Management, Department of the Interior).
21 43 U.S.C. § 1635(e). The State cannot, however, select land within a conservation system
unit or the Alaska National Petroleum Reserve. Id.
22 P.L. 108-452, § 104(a). These parcels are in the following areas: Bradley Lake; Eagle
River/Ship Creek/Peters Creek; Salmon Creek; Nenana River; Solomon Gulch at Valdez;
and Kruzgamepa River Pass Creek. Id.
23 ANILCA defines CSUs as any unit of Alaska land within the National Park System,
National Wildlife Refuge System, National Wild and Scenic Rivers System, National Trails
System, National Wilderness Preservation System, or a National Forest Monument. 16
U.S.C. § 3102(4).
24 P.L. 108-452, § 104(b).
25 Act of January 21, 1929, Chap. 92 (45 Stat. 1091).

or the United States’ reversionary interests in land, the unreserved portion of which
is held by the University.26
The act grants the Secretary of the Interior the flexibility to enter into binding
agreements with the State to finalize Alaska’s entitlements under the Statehood Act.27
In addition, the act allows the State to select or top-file specific parcels of land in the
Chugach National Forest and the Trans-Alaska Pipeline System that were mistakenly
omitted from previous applications or top-filings.28
The act institutes a streamlined procedure for the conversion of certain federal
mining claims to state mining claims.29 Some lands selected by the State are
encumbered by federal mining claims, making the lands unavailable for selection.
The surrounding lands can be conveyed to the State, but that creates isolated tracts
of federal land which BLM has complained are very difficult to manage.30 The act
allows for the holder of a valid federal mining claim on State-selected or top-filed
lands to relinquish that claim and have it converted to a state mining claim. The
lands attached to the mining claim are then transferred to the State so long as the land
was selected or top-filed as of January 3, 1994.31
Title II. Title II of the act attempts to finalize the Regional and Village
Corporation land selections under ANCSA. Under ANCSA, Regional and Village
Corporations had a limited time in which to select lands, and could only select lands
that were available during that period. In other words, they did not have the option
to “top-file” withdrawn lands for future selection when they became available. Title
II of the act allows the Corporations to select previously unavailable land that is part
of or adjacent to a town in which a Village Corporation is located.32
Section 12 of ANCSA gave the Village Corporations two separate selections of
land: selections of land within which the Native Villages were located (“12(a)
selections”); and excess land reallocable to the Village Corporations by the Regional33
Corporations on an equitable basis (“12(b) selections”). The Regional Corporations
have been slow to reallocate the 12(b) lands, and the act requires the Regional34
Corporations to complete the process by October 1, 2005. The act also attempts to
counter the effects of overselections and ease BLM’s surveying duty by allowing the

12(a) and 12(b) selections to be combined for the purpose of surveying and

26 P.L. 108-452, § 105.
27 Id. at § 106.
28 Id. at § 108.
29 Id. at § 107.
30 See S. Hrg. 108-163, at 10 (prepared statement of Henri Bisson, State Director, Bureau
of Land Management, Department of the Interior).
31 P.L. 108-452, § 107.
32 Id., at § 201(a).
33 43 U.S.C. § 1611(a), (b).
34 P.L. 108-452, § 202(1).

conveying those lands.35 If a village has overselected its 12(a) lands, for example, it
can take a smaller amount of 12(b) lands to fulfill its entitlement.
BLM has argued that one of the primary obstacles to completing the conveyance
process is the requirement that BLM survey down to the very last acre to ensure that
conveyances do not exceed the Corporation’s entitlement. According to BLM, this
often takes more than one field survey season to accomplish.36 The act addresses this
problem by allowing the Interior Secretary to enter into an agreement with the
affected Corporation, according to which the Secretary conveys some or all of the
next whole prioritized section (640 acres) of land if doing so would satisfy that
Corporation’s entitlement.37 Exactly how much the Secretary is allowed to “round
up” under this provision depends on the status of the land:
!If the land is managed by BLM and is not within a CSU, then the
Secretary can convey the next whole section;
!If the land is not within a CSU and is managed by an agency other
than BLM, then the Secretary can convey the next quarter-section
(with the concurrence of the other agency); and
!If the land is within a CSU, then the Secretary can convey the next
quarter of a quarter-section (if managed by an agency other than
BLM, then the concurrence of that agency is also required).38
ANCSA authorized the Secretary of the Interior to withdraw 2 million acres of
unreserved and unappropriated public lands and convey them to Corporations and
Native groups for special situations and purposes, such as cemetery land and reserved
mineral charges against Regional Corporation entitlements.39 Delays in finalizing
these conveyances have, according to BLM, created significant delays in enabling
Regional Corporations to know their final entitlements.40 The act creates an
expedited process for the conveyance of roughly 1,800 existing cemetery and
historical sites.41 According to ANCSA, any of these 2 million acres of special
purpose land left over are to be distributed among the Regional Corporations

35 Id. at § 202(2).
36 See S. Hrg. 108-163, at 11 (prepared statement of Henri Bisson, State Director, Bureau
of Land Management, Department of the Interior).
37 P.L. 108-452, § 203.
38 Id.
39 43 U.S.C. § 1613(h).
40 See, e.g., S. Hrg. 108-163, at 11 (prepared statement of Henri Bisson, State Director,
Bureau of Land Management, Department of the Interior).
41 P.L. 108-452, § 204. The act also requires that Regional Corporations filing applications
for historic sites under this provision must include statements of the historical significance
of the site within one year of the bill’s passage. Id.

according to population.42 Determining just how much remains of that 2 million
acres has proved difficult, however, and so the act deems there to be 200,000 acres
remaining to be divided.43
The act provides that if a Regional Corporation does not have sufficient land
selected to fulfill its entitlement under the remainder provision, then the Secretary
may withdraw land to fulfill that entitlement, so long as the land is vacant,
unappropriated, and unreserved.44
Section 17(d)(1) of ANCSA gave the Secretary of the Interior the authority to
withdraw lands for further study and reclassify them for various uses in the public
interest.45 Much of this land remains withdrawn today but has yet to be reclassified,
and the question of what to do with these “lingering withdrawals” - estimated by
BLM to comprise over 53 million acres of land - proved to be one of the most
controversial aspects in the debates leading to the passage of the act.46 Of this 53
million acres, BLM estimates that roughly 28 million acres are selected by the State,
a Native Corporation, or both, leaving 25.3 million acres potentially open for
economic activities under federal law should the lands withdrawn under 17(d)(1) be
opened up.47 The act requires that, within 18 months of its enactment, the Interior
Secretary must conduct a review of these lingering withdrawals and submit a report
to the Senate Energy Committee and the House Resources Committee identifying
portions that can be opened up for appropriation.48

42 43 U.S.C. § 1613(h)(8)(A).
43 P.L. 108-452, § 205. There are two minor exceptions: the Chugach Native Corporation’s
portion of the 200,000 acres is determined according to a 1982 agreement with the
Corporation; and Cook Inlet Region’s portion is held by the United States. Id.
44 Id. at § 206.
45 43 U.S.C. § 1616(d)(1).
46 The first few versions of S. 1466, which eventually became P.L. 108-452, would have
vested the Interior Secretary with varying degrees of discretion to open and/or close these
lands, touching off a debate between the mining and environmental communities. While the
mining interests argued that the Secretary should only have the authority to open these lands,
environmental groups countered that the Secretary should only be able to close them. In
addition, the environmental groups did not want the Interior Secretary to be able to open
these lands without going through the process mandated by the Federal Land Policy
Management Act (FLPMA) (43 U.S.C. § 1701 et seq.). FLPMA requires that the Secretary
develop land use plans governing management of public lands considering, among other
things, present and potential uses, principles of sustained yield, long term vs. short-term
benefits to the public, and compliance with applicable pollution control laws (43 U.S.C. §
1712(c)). For both sides of these debates, see S. Hrg. 108-163, at 32 (prepared statement
of Steven C. Borrell, Executive Director, Alaska Miners Association, Inc.); and S. Hrg. 108-

163, at 60 (statement of Eleanor Huffines, Alaska Regional Director, and Allen E. Smith,

Alaska Senior Policy Analyst, the Wilderness Society).
47 These statistics were provided to CRS by BLM’s Alaska Office.
48 P.L. 108-452, § 207. In conducting this review, the Secretary must provide for public
notice and comment. Id.

While overselection of lands by Native Corporations presents practical obstacles
to the completion of the land transfer process, there is also a relatively small number
of Corporations that have not selected enough lands to fulfill their entitlements.
Federal officials have been grappling with these “underselections” for years;
Congress included in ANILCA a process for dealing with underselections,49 but BLM
argued that this process is too cumbersome.50 This process includes two steps. First,
the Secretary issues a Public Land Order (PLO) withdrawing twice the amount of
land necessary to fulfill the Corporation’s entitlement. Then, the Corporation has
ninety days in which to file an application selecting from that amount enough land
to fulfill its entitlement.51 The act allows the parties to agree in advance which lands
are to be selected. The Secretary may then withdraw the agreed-upon amount of
land, which the Corporation would formally select.52
Similar to the authority that granted to the Secretary of the Interior to negotiate
with the State to finalize its entitlements, the act grants the Secretary that same
authority with regards to the Native Corporations.53
Title III. In 2003, BLM estimated that the remaining pending allotment
applications totaled 3,256 acres of land, approximately 1,100 acres of which were
erroneously conveyed to the State or to Native Corporations, and so no longer belong5455
to the United States. Recovery of title of these lands has proven especially
difficult, and the act seeks to ameliorate this problem by allowing the Secretary of the
Interior to either correct erroneous conveyances (i.e., the conveyances that caused the
lands to pass from the federal government’s ownership in the first place) to exclude56
allotment land or enter into agreements with Native Corporations whereby the
Corporations reconvey the land to the United States.57
If the parties cannot agree to use the processes described above, then the act
allows the State or Native Corporation to enter into an agreement with the applicant
in which the applicant would receive substitute Native Corporation lands in place of

49 43 U.S.C. § 1621(j)(2).
50 See S. Hrg. 108-163, at 10 (prepared statement of Henri Bisson, State Director, Bureau
of Land Management, Department of the Interior).
51 43 U.S.C. § 1621(j)(2).
52 P.L. 108-452, § 208.
53 Id. at § 209.
54 See S. Hrg. 108-163, at 9 (prepared statement of Henri Bisson, State Director, Bureau of
Land Management, Department of the Interior).
55 For many years, the Department of the Interior routinely denied allotment applications for
land conveyed to the State or Village Corporations. In 1979, however, a federal District
Court ruled this was illegal, and ordered the Department to recover title to such lands. Ethel
Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979).
56 P.L. 108-452, § 301.
57 Id. at § 302.

those originally included in the allotment application.58 If, as a result of any of the
processes described above or any other effort to accelerate the Alaska land transfers,
the State or a Native Corporation loses land in relation to its entitlement, then the
Secretary of the Interior is empowered to adjust the remaining entitlement
accordi n gl y. 59
The act allows for the reinstatement or reconstruction of previously closed
allotment applications, and authorizes the Interior Secretary to seek the voluntary
reconveyance of the land described in the application.60 Native Veterans are
allowed to amend their applications to include land valuable for its sand and gravel
deposits, unless that land is part of a National Park.61 In addition, the act amends the
process for determining cause of death for applications filed on behalf of deceased
Native Veterans to ensure that such determinations are supported by sufficient
evi d ence. 62
Title IV. In order to complete the land transfers by 2009, the act establishes
sequential deadlines for prioritizing selections, with six-month intervals in between
to allow the next group in line to know what the preceding group chose. The63
deadlines would expire in the following order: 1) Village Corporations; 2) Regional
Corporations;64 and 3) the State.65
Title V. The act authorizes the Secretary of the Interior to establish a field
office of DOI’s Office of Hearings and Appeals in Alaska to handle disputes related
to the Alaska land transfers.66
Title VI. The act requires the Secretary of the Interior, within three years of the
bill’s passage, to submit to Congress a report including a statement of progress on the67
Alaska land transfers and recommendations for completing the conveyances.
Finally, the act authorizes the appropriation of the sums necessary to carry out the68

purposes of the act.
58 Id. at § 303.
59 Id. at § 304.
60 Id. at § 305.
61 Id. at § 306.
62 Id.
63 Id. at § 403(a)(1).
64 Id. at § 403(a)(2).
65 Id. at § 404.
66 Id. at § 501.
67 Id. at § 601.
68 Id. at § 602.