Akootchook v. USA.

• Decision Date: 08 November 2001
• Docket Number: No. 00-35325,DEFENDANTS-APPELLEES,PLAINTIFFS-APPELLANTS,00-35325
• Citation: 271 F.3d 1160
• Parties: (9th Cir. 2001) MARY T. AKOOTCHOOK; SERGIE ALEXANDEROFF; DANIEL AKOOTCHOOK; GEORGE AKOOTCHOOK; ADELINE JIM,v. UNITED STATES OF AMERICA; GALE A. NORTON, <A HREF="#fr1-*" name="fn1-*">*
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1160

271 F.3d 1160 (9th Cir. 2001)

MARY T. AKOOTCHOOK; SERGIE ALEXANDEROFF; DANIEL AKOOTCHOOK; GEORGE AKOOTCHOOK; ADELINE JIM, PLAINTIFFS-APPELLANTS v. UNITED STATES OF AMERICA; GALE A. NORTON,^* DEFENDANTS-APPELLEES

No. 00-35325

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 6, 2001

Filed November 8, 2001

Harold J. Curran, Alaska Legal Services Corporation, Anchorage, Alaska, for the plaintiffs-appellants.

John A. Bryson, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Alaska; H. Russel Holland, Chief District Judge, Presiding. D.C. No. CV-98-00126-HRH

Before: Schroeder, Chief Judge, T.G. Nelson and Silverman, Circuit Judges.

T.G. Nelson, Circuit Judge

George Akootchook, Mary T. Akootchook, Daniel Akootchook, Sergie Alexanderoff, and Adeline Jim (as heir of George Jim, Sr.), are five native Alaskans who challenge the Department of Interior's decision denying their applications for land allotments under the Alaska Native Allotment Act. The Department concluded that the claims to allotments were not valid because, prior to withdrawal of the land from the public domain, the individuals did not use the land independent of their families. For the reasons stated, we affirm the district court's dismissal of the action.

FACTS AND PROCEDURAL HISTORY

The 1887 General Allotment Act ¹ provided Indians not residing on a reservation with the opportunity to apply for a 160-acre allotment on unsurveyed and otherwise unappropriated land of the United States. In 1906, Congress passed the Alaska Native Allotment Act (ANAA)² to clarify the rights of Indians and Eskimos to apply for allotments of unappropriated, vacant, and unreserved nonmineral land in Alaska. To be eligible, the applicants had to show "substantially continuous use and occupancy of the land for a period of five years"³ prior to the date the land was withdrawn from the public domain. The Department's regulations implementing the ANAA provide:

The term "substantially continuous use and occupancy" contemplates the customary seasonality of use and occupancy by the applicant of any land used by him for his livelihood and well-being and that of his family. Such use and occupancy must be substantial actual possession and use of the land, at least potentially exclusive of others, and not merely intermittent use.⁴

The Alaska Native Claims Settlement Act⁵ repealed the ANAA in 1971, but preserved all applications for allotments pending before the Department of the Interior on December 18, 1971.⁶

Appellants applied for allotments under the ANAA in the early 1970's. The Department, through the Interior Board of Land Appeals (IBLA), denied the applications because Appellants had not used the claimed land for a continuous period of five years prior to withdrawal of the land from the public domain. However, in 1976, after the IBLA had denied each Appellant's application, this court held, in Pence v. Kleppe,⁷ that the IBLA's processes for reviewing applications did not meet due process requirements. Pence held, as relevant here, that applicants are entitled to an opportunity for an oral hearing before a neutral fact-finder prior to any decisions on their applications.⁸ These hearings are known as Pence hearings. In 1979, the Interior Department changed its interpretation of ANAA, requiring only that the qualifying use and occupancy of the land commence prior to withdrawal, rather than requiring five years of use prior to withdrawal.⁹

Because of Pence, Appellants were entitled to hearings on their reopened applications. But before these hearings occurred, two different groups of Alaskan natives filed class action lawsuits in the district court. The first suit, Shields v. United States,¹⁰ asserted that the IBLA's refusal to approve applications for allotments in certain national forests when the applications relied on ancestral use prior to withdrawal--as opposed to personal use--was arbitrary, capricious, and an abuse of discretion. The district court rejected the class claim, ¹¹ and this court affirmed.¹² It is undisputed that George Jim, Sr. was a member of the Shields class. The second class action, Akootchook v. United States, was initiated by George Akootchook and three other applicants not involved in this appeal. They asserted that the IBLA's refusal to approve applications for allotments in certain wildlife refuges when the applications relied on ancestral use prior to withdrawal--as opposed to personal use--was also arbitrary, capricious, and an abuse of discretion. The district court rejected the class claim, and this court affirmed.¹³ It is undisputed that Mary and Daniel Akootchook and Sergie Alexanderoff were members of the Akootchook class.

Between 1989 and 1991, after the Shields and Akootchook decisions, Appellants received their Pence hearings. At their hearings, Appellants asserted--this time relying on the Interior Department's 1979 order--that, although their personal use and occupancy may not have extended five years before withdrawal, their personal use and occupancy commenced prior to the withdrawal of the lands that they sought. The IBLA nonetheless denied all five applications, determining that, prior to the withdrawal of the lands in question, Appellants had only used the lands as minors and under the control and supervision of their parents.¹⁴ According to the IBLA, Appellants did not begin to use the lands as independent citizens in their own right until after the lands were withdrawn. Because long-standing Department decisions and policy required independent use of the land separate from any use as a minor when accompanying a parent or an elder, the Appellants could not establish the required use.

Appellants filed an action in district court, jointly challenging the denial of their applications. The district court did not reach the merits, but ruled that the present claims were barred by the res judicata effect of the earlier class action suits.¹⁵ It reasoned that George Jim, Sr.'s claim that his personal use and occupancy entitled him to an allotment could have been presented in the Shields class action. Similarly, the court held that the other Appellants' claims could have been presented in the Akootchook class action. The district court then dismissed the claims with prejudice. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We affirm the district court's dismissal of the action, although for different reasons.

STANDARD OF REVIEW

We review a district court's grant of summary judgment on res judicata grounds de novo.¹⁶ In reviewing decisions of the IBLA, we exercise a limited standard of review and will reverse only if the decision is arbitrary, capricious, not supported by substantial evidence, or contrary to law. ¹⁷ This court "carefully search[es] the entire record to determine whether it contains such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and whether it demonstrates that the decision was based on a consideration of relevant factors."¹⁸

DISCUSSION

A. Res Judicata

The United States argued in the district court, as it does here, that the res judicata effect of the Shields and Akootchook class actions bars Appellants' pursuit of this case. The United States contends that the class actions and the present case satisfy the three prerequisites for the application of claim preclusion as stated in Frank v. United Airlines, Inc.¹⁹ Those prerequisites are: "(1) an identity of claims in the two actions; (2) a final judgment on the merits in the first action; and (3) identity or privity between the parties in the two actions." Because we do not believe that there are identical claims in the class actions and the present case, thereby not satisfying the first element of the Frank analysis, we disagree with the district court's res judicata finding.

The Akootchook action was filed as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. That rule provides for class action adjudication if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."²⁰ The class in Akootchook consisted of Native Alaskans whose ancestors had used and occupied the lands in question for generations but who had been denied allotments because they could not establish personal use of the land before it was withdrawn.²¹ Their claim was that they were entitled to allotments because their ancestors had used and occupied the land prior to withdrawal of the land from the public domain.²²

The claim of Appellants differs from that in Akootchook because Appellants are not asserting rights to allotments based on ancestral use of the land but rather on their own personal use of the land when they were children. The present claim could not fit under the Rule 23(b)(2) class action because very few of the class members personally used the lands before they were withdrawn; relief for this claim would not be appropriate for the class as a whole.²³ The only claim common to the class was the ancestral use claim. Thus, the only adverse governmental action common to the class as a whole was the denial of the ancestral use claim. Litigation of Appellants' personal use claims would have been counter to the express requirements for class certification in Rule 23(b)(2).

Aside from the fact that the claims are not identical, Appellants could not have brought their personal use claims during the class action because the IBLA had not yet acted on the Appellants' applications. At the time Akootchook was filed, the Department had not denied Appellants' claim to entitlement based on personal use because Appellants had not yet received their Pence hearings. Their personal use claims against the...