October 25, 2021

Volume XI, Number 298

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October 22, 2021

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Interior Department Moves Forward with Alaska Native Vietnam Era Veterans Land Allotment Selections

After 50 years, Alaska Native Vietnam era veterans and their heirs continue to hope for meaningful progress in obtaining the land allotments to which they are entitled and for which they have long been waiting.  There is now some indication that, despite multiple delays, challenges, and false starts, the U.S. Department of the Interior (DOI) is taking limited action to move the process forward.  On May 13, 2021, DOI announced next steps in its implementation of the Alaska Native Vietnam Era Veterans Land Allotment Program (Allotment Program), which aims to compensate Alaska Native veterans who missed the opportunity to apply for an allotment of certain federal lands in Alaska due to their military service during the Vietnam War.  Specifically, DOI announced that it will allow applications for allotments within 28 million additional acres covered by several Trump Administration Public Land Orders (PLOs) currently under departmental review.  However, while the Bureau of Land Management (BLM) has said it will process and expedite applications for these lands, it is important to note that the agency has indicated it will not complete processing unless and until DOI makes those lands available after finishing its two-year review of the legality of these PLOs.

The Allotment Program aims to address disparities created in 1971 when the Alaska Native Claims Settlement Act (ANCSA) repealed the 1906 Alaska Native Allotment Act, under which Alaska Natives could apply to receive an allotment of 160 acres of land.  Because they were off fighting in the Vietnam War, thousands of eligible Alaska Natives were precluded from applying for allotments before the 1906 Act was repealed.

A subsequent congressional effort to remediate this inequity fell short.  In 1998, Congress opened an 18-month application window for certain veterans who were in active duty between 1969 and 1971 to apply for allotments, but the limited application window, service year restrictions, and an occupancy requirement led to the issuance of only about 250 allotments.

In 2019, Congress again sought to address compensation of Alaska Native Vietnam veterans who missed the opportunity to apply for an allotment before the enactment of ANCSA in the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019, which established the Alaska Native Vietnam Era Veterans Land Allotment Program.  The Dingell Act’s Allotment Program differs from Congress’s previous efforts in several important ways.  First, the Dingell Act lengthened the amount of time lands are available for selection to a period of five years, until December 29, 2025.  Next, it extended eligibility to any Alaska Native Vietnam veteran who served between August 5, 1964, and December 31, 1971, and who did not previously receive an allotment, and it allowed the surviving heirs of deceased eligible veterans to apply in their stead.  Finally, the Dingell Act removed the personal use or occupancy requirement mandated under prior law, as many eligible veterans, and the heirs of deceased eligible veterans, now live outside of Alaska.  In November 2020, BLM issued final regulations to implement the Dingell Act and allow approximately 2,200 veterans and their heirs to apply for land allotments.

However, even with the expanded eligibility requirements, a fundamental impediment to allotment selection has long been that the lands available for selection are unsuitable to potential applicants.  Eligible individuals may only select an allotment from “vacant, unappropriated, and unreserved federal lands” in Alaska.  Although approximately 1.6 million acres are available for selection, that land is often hundreds of miles away from applicants’ home villages or otherwise practically inaccessible.  For example, a majority of eligible veterans and their heirs live in Southeast Alaska, which is largely comprised of the nearly 17-million-acre Tongass National Forest.  Because lands within national forests are ineligible for selection, these individuals are precluded from receiving allotments on their ancestral lands or lands near their homes.  Alaska Native veterans from the North Slope region face a similar challenge, with the nearly 23 million acre National Petroleum Reserve-Alaska and the 19.3 million acre Arctic National Wildlife Refuge, among other federal lands, off limits to selections, despite the fact that majority of the North Slope villages are situated within these two massive reserves.  Eligible individuals repeatedly have asked for more lands to be made available for selection near their Native villages.

In January 2021, the outgoing Trump Administration issued several PLOs that sought to remove federal restrictions on approximately 28 million acres of BLM-managed lands in Alaska, which would open the land to additional uses and selection under the Allotment Program.  Quickly following the administration transition, DOI announced that it would review those PLOs for legal defects and delay their implementation for two years.  Though the State of Alaska filed a lawsuit on July 7 challenging the Biden Administration’s action to delay the implementation of the PLOs, allotment selections of lands covered by these PLOs could also be delayed by two years, if not ultimately barred entirely.

In response to concerns raised about the impact of the PLO review on the Allotment Program, DOI recently indicated it will move forward with allotment applications for these areas while the review is ongoing.  On May 13, 2021, DOI announced that BLM will prioritize its review of those lands to offer them for allotment selection, and that it will expedite and process allotment applications across those lands during the review of the PLOs.  Accordingly, BLM added approximately 28 million acres to its “Available Lands Map” as “Potentially Available after PLO Review” to denote the lands potentially available pending DOI’s review of the PLOs.  However, although BLM has said it will immediately begin processing any applications it receives for these lands, according to a May 25, 2021, Program Update, it will only complete processing “if the lands become available after the ongoing review.”

DOI conducted consultation in May and June 2021 with Alaska Native tribes and Alaska Native corporations.  Notably, DOI has cited lack of consultation with these entities and the potential negative impacts of the PLOs on rural subsistence preferences for Alaska Natives as defects in the Trump Administration’s PLO decision-making processes.

Alaska Native and American Indians have a proud history of military service, serving in the military at higher rates than any other ethnic group in the country.  Efforts to expand the lands available for selection under the Alaska Native Vietnam Era Veterans Land Allotment Program would advance the important objective of finally allowing Alaska Native veterans or their heirs to receive the allotments to which they are entitled.  Whether and to what extent DOI’s recently announced steps ultimately help achieve the goal of rectifying this inequity for Alaska Native Vietnam veterans remains to be seen.

© 2021 Van Ness Feldman LLPNational Law Review, Volume XI, Number 218
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About this Author

Jonathan Simon, Van Ness Fledman Law Firm, Washington DC, Cybersecurity, Environmental and Litigation Law Attorney
Partner

Jonathan Simon represents clients before the courts, Congress, and federal agencies on a broad range of matters involving natural resources, public lands, environmental, and energy law.  Jon’s practice focuses on providing legal and strategic guidance and counsel with regard to the management and use of federal lands and the development of energy infrastructure projects.  Jon has broad experience in matters involving the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Clean Water Act (CWA), Coastal Zone Management Act (CZMA), Wilderness Act, and...

202-298-1932
Melinda L. Meade Meyers Associate Van Ness Feldman DC Endangered Species & Wildlife Litigation & Investigations Native Affairs Public Lands
Of Counsel

Melinda Meade Meyers’ practice focuses on federal regulatory law as it pertains to natural resources.  She represents Alaska Native corporations, concessioners, public lands user groups, zoos and aquariums, and others on regulatory compliance matters, corporate governance, and strategic business decisions related to permitting and government contracting.

Melinda’s expertise includes national park concessions, wildlife and animal law, federal small business contracting, and litigation.  She has experience advocating for clients before various courts and administrative agencies in...

202-298-1995
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