Akiachak Native Community v. United States Department of Interior, 070116 FEDDC, 13-5360

Docket Nº:13-5360
Opinion Judge:Tatel, Circuit Judge:
Party Name:Akiachak Native Community, et al., Appellees v. United States Department of the Interior and Sally Jewell, Secretary of the Interior, Appellees State of Alaska, Appellant
Attorney:J. Anne Nelson, Assistant Attorney General, Office of the Attorney General for the State of Alaska, argued the cause and filed the briefs for appellant. Elizabeth Ann Peterson, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief were John C. Cruden,...
Judge Panel:Before: Tatel, Brown, and Millett, Circuit Judges. Brown, Circuit Judge, dissenting:
Case Date:July 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Akiachak Native Community, et al., Appellees

v.

United States Department of the Interior and Sally Jewell, Secretary of the Interior, Appellees

State of Alaska, Appellant

No. 13-5360

United States Court of Appeals, District of Columbia Circuit

July 1, 2016

Argued March 4, 2016

Appeal from the United States District Court for the District of Columbia (No. 1:06-cv-00969)

J. Anne Nelson, Assistant Attorney General, Office of the Attorney General for the State of Alaska, argued the cause and filed the briefs for appellant.

Elizabeth Ann Peterson, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief were John C. Cruden, Assistant Attorney General, and William B. Lazarus, Attorney.

Heather R. Kendall-Miller argued the cause for tribal appellees. With her on the brief were Matthew N. Newman, Richard Guest, Lloyd Benton Miller, Hollis L. Handler, and Goriune Dudukgian.

Before: Tatel, Brown, and Millett, Circuit Judges.

OPINION

Tatel, Circuit Judge:

In 1971, after decades of conflict, the United States finally settled land claims staked by descendants of Alaskan aboriginal tribes. The U.S. Department of Interior had long interpreted this settlement to bar it from taking land into trust for Indian tribes in Alaska. In this case, several Alaska Native tribes sued the Department, challenging the regulation implementing that prohibition. After the district court held that Interior's interpretation was contrary to law, the Department, following notice and comment, revised its regulations and dismissed its appeal. The State of Alaska disagrees with both the district court and Interior, and now seeks to prevent any new efforts by the United States to take tribal land in trust within the State's borders. Unfortunately for Alaska, which intervened in the district court as a defendant and brought no independent claim for relief, the controversy between the tribes and the Department is now moot. We therefore dismiss Alaska's appeal for lack of jurisdiction.

I.

Like many Alaska Native tribes, the three tribes that initiated this litigation-Akiachak Native Community, Chalkyitsik Village, and Tuluksak Native Community-live in small villages reachable only by air and water. Compl. ¶¶ 24, 30, 41. These tribes, together with the Chilkoot Indian Association (collectively "Akiachak"), sought to persuade the Department of Interior to take certain land into trust-a form of restricted land ownership under which the United States possesses legal title to land for the benefit of Indian tribes. Id. ¶¶ 29, 36, 40, 42. They believed that trust status would "ensure [the] protection" of these lands "for future generations of tribal members, " id. ¶ 40, as well as allow them to "assert undisputed jurisdiction over [these] lands" and obtain federal enforcement of ordinances banning alcohol sales, id. ¶ 35.

Akiachak, however, faced a significant barrier to this course of action: the Department of Interior had long maintained that it was legally barred from procuring trust land in Alaska. See 25 C.F.R. § 151.1 (1980) (establishing that the Department of Interior's land-into-trust regulations "do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for" one tribe lacking aboriginal claims). By filing this lawsuit, Akiachak set out to change that.

Some background is necessary to understand the basis for Akiachak's claim to relief. Acquisition of Indian trust lands by the U.S. government has a long history. The Indian Reorganization Act of 1934 (IRA) authorizes the Secretary of the Interior to acquire trust lands, 25 U.S.C. § 465, and designate new Indian reservations, id. § 467. The IRA considers Alaska Natives to be Indians for purposes of the Act, id. § 479, but originally excluded Alaska, then a territory, from the trust acquisition provision, Indian Reorganization Act of 1934, Pub. L. No. 73-383, § 13, 48 Stat. 984, 986. In 1936, Congress extended the IRA's trust authority to Alaska and authorized the Secretary to designate as reservations land that had been allocated for Indian use under prior statutes and executive orders, Act of May 1, 1936, Pub. L. No. 74-538, §§ 1, 2, 49 Stat. 1250, resulting in the designation of seven reservations and the acquisition of several other properties in trust, Akiachak Native Community v. Salazar (Akiachak I), 935 F.Supp.2d 195, 198 (D.D.C. 2013). Six decades later, in 1994, Congress added an antidiscrimination provision that prohibited the Department of Interior from "classif[ying], enhanc[ing], or diminish[ing] the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes." Act of May 31, 1994, Pub. L. No. 103-263, 108 Stat. 707, 709 (codified at 25 U.S.C. § 476(g)).

But these ownership schemes left unresolved many outstanding land claims by Alaska Natives based on aboriginal rights, that is, "possessory rights of Indian tribes to their aboriginal lands . . . extinguishable only by the United States." Oneida Indian Nation of New York v. Oneida County, 414 U.S. 661, 667 (1974). After Alaska became a state in 1959, this potential for outstanding aboriginal claims limited the U.S. government's ability to transfer land to the new state under the Alaska Statehood Act. Conflict over the State's land selections prompted Congress to pass the Alaska Native Claims Settlement Act (ANCSA) in 1971. "[D]esigned to settle all land claims by Alaska Natives, " ANCSA extinguished aboriginal claims and revoked all designated reservations, except for one: the Annette Island Reserve inhabited by the Metlakatla Indians, who, as immigrants from Canada, had no aboriginal claims to Alaska lands. Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 523–24 (1998); Federal Appellees' Br. 8. In exchange, Alaska Natives received approximately 44 million acres of land and $962.5 million, to be distributed through corporations owned by Alaska Native shareholders. Venetie, 522 U.S. at 524 (citing 43 U.S.C. §§ 1605, 1607, 1613). Congress declared that the settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska[.]

43 U.S.C. § 1601(b). Following ANCSA's passage, Congress repealed other statutes governing procurement of land for use by Alaska Natives, including the 1936 amendment authorizing the Secretary to designate reservations in Alaska. Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, § 704(a), 90 Stat. 2743, 2792. Importantly, however, Congress never repealed the IRA's Alaska trust provision.

In 1978, a tribe's request to take certain land into trust spurred the Department of Interior to determine ANCSA's effect on its authority to acquire trust lands in Alaska. Concluding that "Congress intended permanently to remove from trust status all Native land in Alaska except allotments and the Annette Island Reserve, " Memorandum from Thomas W. Fredericks, Associate Solicitor, Indian Affairs, to Assistant Secretary, Indian Affairs 3 (Sept. 15, 1978) ("Fredericks Opinion"), Interior published regulations governing acquisition of Indian trust land that excluded "the acquisition of land in trust status in the State of Alaska, " a provision known as the "Alaska exception." 25 C.F.R. § 151.1 (1980). It was this Alaska exception that stood in Akiachak's way.

Akiachak filed the complaint in this case against the Secretary and the Department of Interior, seeking declaratory relief in the form of an order ruling that the Alaska exception violated the IRA's antidiscrimination provision, the Constitution, and the Administrative Procedure Act. Compl. ¶¶ 54, 56, 58; id. Prayer for Relief ¶¶ I–III. Akiachak also sought an injunction directing Interior "to implement the acquisition of land into trust procedures without regard to the bar against Alaska tribes" and "to accept and consider Plaintiffs' requests to have lands in Alaska taken into trust." Id. Prayer for Relief ¶¶ IV–V.

The State of Alaska, seeking to defend the Alaska exception's validity, intervened in the district court as a defendant. The State filed an answer in which it presented several affirmative defenses, including that Akiachak's claims were "barred by the...

To continue reading

FREE SIGN UP