The 2017 Tax Act and Settlement Trusts

By any measure, the enactment of the Alaska Native provisions of the 2017 Tax Act was an extraordinary achievement by the Alaska congressional delegation. Although the ANCSA Amendments Act of 1987 first permitted Alaska Native Corporations to establish “settlement trusts” to benefit their shareholders, relatively few settlement trusts have been established to date due to various obstacles posed by the Internal Revenue Code. The 2017 Tax Act removed a significant hurdle by permitting Alaska Native Corporations to claim a tax deduction for transfers to a settlement trust, thereby allowing such transfers to occur on a pre-tax basis rather than on the after-tax basis as was the rule prior to the new legislation. The 2017 Tax Act also provides tax certainty with regard to assignments to a settlement trust of certain payments required by ANCSA such as those under section 7(j), which should encourage Alaska Native Corporations to use such assignments to fund settlement trusts in convenient annual installments. To the extent that ambiguities exist as to the Alaska Native provisions of the Act, those provisions should be interpreted in favor of the Alaska Native entities and individuals that seek to utilize those provisions in accordance with canons of statutory construction for Indian Law and ANCSA