Alaska Native Ass'n of Oregon v. Morton

• Decision Date: 23 December 1974
• Docket Number: Civ. A. No. 2133-73,2141-73.
• Citation: 417 F. Supp. 459
• Parties: ALASKA NATIVE ASSOCIATION OF OREGON et al., Plaintiffs, v. Rogers C. B. MORTON et al., Defendants. ALASKA FEDERATION OF NATIVES, INTERNATIONAL et al., Plaintiffs, v. Rogers C. B. MORTON et al., Defendants.
• Court: U.S. District Court — District of Columbia

417 F. Supp. 459

ALASKA NATIVE ASSOCIATION OF OREGON et al., Plaintiffs, v. Rogers C. B. MORTON et al., Defendants.

ALASKA FEDERATION OF NATIVES, INTERNATIONAL et al., Plaintiffs, v. Rogers C. B. MORTON et al., Defendants.

Civ. A. Nos. 2133-73, 2141-73.

United States District Court, District of Columbia, Civil Division.

December 23, 1974.

A. John Wabaunsee, Boulder, Colo., admitted pro hac vice, for ANAO.

A. Raymond Randolph, Jr., Miller, Cassidy, Larroca & Lewin, Washington, D. C., for AFNI.

Herbert Pittle, Atty., Dept. of Justice, Washington, D. C., for defendant Morton.

Kenneth C. Bass, III, Washington, D. C., for intervenor defendant Alaska Federation of Natives in No. 2141-73.

Stephen M. Truitt, Washington, D. C., for intervenor defendant Aleut Corporation in No. 2141-73.

MEMORANDUM

GASCH, District Judge.

This matter is before the Court on cross-motions for summary judgment. It involves the construction of Section 7(c) of the Alaska Native Claims Settlement Act, 85 Stat. 688 et seq. (1971), 43 U.S.C. §§ 1601-1624, which provides for an election to determine whether a thirteenth region for non-resident Alaska Natives shall be established, and it involves the procedures of the Department of the Interior in carrying out the election.

Plaintiffs are two organizations for Alaska Natives residing in States other than Alaska: the Alaska Native Association of Oregon (ANAO) and the Alaska Federation of Natives, International (AFNI), and ten non-resident Alaska Natives. Defendants are the Secretary of the Department of the Interior and its agencies which are responsible for the implementation of the Act, and two intervenor defendants, the Alaska Federation of Natives (AFN), an organization which represents ten of the twelve Alaska regional corporations, and the Aleut Corporation, one of the twelve regional corporations.

In order to put the two legal issues before the Court in perspective, it is first necessary to review the Alaska Native Claims Settlement Act (the Act), especially that portion dealing with an election to determine whether a thirteenth region for non-resident Alaska Natives shall be established, and then describe the history of the election process.

I. THE ACT.

The purpose of the Alaska Native Claims Settlement Act is to meet the "immediate need for a fair and just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims."¹ "`Native' means a citizen of the United States who is a person of one-fourth degree or more Alaska Indian . . .."² The Act declares that all such claims are extinguished³ and, as part of the legislative settlement, establishes an Alaska Native Fund (the Fund), which consists of $962,400,000 to be distributed to the Natives as part of the compensation for their claims.⁴

Pursuant to the Act, the State of Alaska was divided into twelve geographic regions "with each region composed as far as practicable of Natives having a common heritage and sharing common interests."⁵ Regional Corporations for each of these twelve regions were thereafter established.⁶ Each region was further subdivided into villages, and Village Corporations were established.⁷ The Regional Corporations are the conduits through which the monies from the Fund are distributed to the Village Corporations and to the Natives who are stockholders of the corporations.⁸

For the purpose of enrolling Natives in the various regions, the Act directed the Secretary of the Interior to prepare a roll of all living Alaska Natives by December 18, 1973.⁹ The roll was to show where each Native resided on the date of the 1970 census enumeration, and, if the Native was a permanent resident of Alaska, he was to be enrolled in the corresponding region in Alaska.¹⁰

The Act also provided that a thirteenth region and regional corporation would be established

if a majority of all eligible Natives eighteen years of age or older who are not permanent residents of Alaska elect . . . to be enrolled in a thirteenth region for Natives who are non-residents of Alaska. . . .¹¹

Therefore a non-resident Native might elect to be enrolled in one of the twelve Alaska regions or in a thirteenth region for non-resident Natives.¹² The thirteenth region, if established, would consist only of those non-resident Natives who had voted in favor of a thirteenth region.¹³ If a thirteenth region were not established by a majority vote, each non-resident Native, regardless of his vote, would then be enrolled in one of the twelve Alaska regions¹⁴ as one of "the class of stockholders who are not residents of . . . villages."¹⁵

After completion of the enrollment process, the money in the Fund "shall be distributed at the end of each three months of the fiscal year among the Regional Corporations . . . on the basis of the relative numbers of Natives enrolled in each region."¹⁶ Non-resident Natives enrolled in a thirteenth region, if established, would receive not less than 50 percent of their per capita share of the amount distributed to their thirteenth Regional Corporation from the Fund.¹⁷ Non-resident Natives enrolled in one of the twelve Alaska regions would receive from that Regional Corporation not less than 45 percent during the first five-year period following December 18, 1971, and 50 percent thereafter of their per capita share of the amount distributed to their Regional Corporation from the Fund, and also their per capita share of "all other net income" of that Corporation.¹⁸ Such "other net income" specifically includes that income derived from the Corporation's own investments and resource development and also its proportionate share of 70 percent of all Alaska Regional Corporations' revenues from timber resources and subsurface estates.¹⁹ However,

an equitable portion of the amount distributed as dividends to non-village-resident stockholders may be withheld by the Corporation and combined with Village Corporation funds to finance projects that will benefit the region generally.²⁰

It is the opinion of the plaintiffs, who are seeking the establishment of a thirteenth region, that non-resident Natives would receive more money in dividends through a thirteenth regional corporation, even though such a corporation's income would be limited to the Fund, because money distributed through the twelve Regional Corporations would be deflected from the stockholders to projects to benefit the local region. Obviously, non-resident Natives would not benefit from such local projects.

The defendants think that the additional income from the regions' resource development would more than compensate for any funding of local projects out of the Fund so that non-resident Natives would receive more money in dividends by belonging to one of the twelve Regional Corporations. The Court expresses no opinion as to which would be of greater financial benefit to non-resident Natives.

II. THE ELECTION PROCESS.

On March 17, 1972, the Secretary of the Interior issued regulations for the enrollment of Alaska Natives. Applications provided by the Bureau of Indian Affairs were to be completed by all Natives and submitted to the Coordinating Office in Anchorage, Alaska, by March 30, 1973.²¹

1. Assistance.

The regulations also provided as follows:²²

Residents of Alaska: Enumerators shall be sent to all villages to assist in the completion and filing of applications and centers will be established in urban areas to furnish assistance in the completion and filing of applications. Persons who are missed by the enumerators may apply to the Coordinating Office by mail or in person.

Nonresidents of Alaska: Natives not residing in Alaska shall be furnished application forms, together with instructions for completing the forms, upon request made to the Commissioner, the Area Director, or the Coordinator.

Enumerators were dispersed throughout Alaska to assist resident Natives in filling out the enrollment application. In the process of enrolling resident Natives, the enumerators discovered the names and addresses of Natives living outside of Alaska, and they mailed enrollment applications to them. Applications were also made available at all Area Offices of the Bureau of Indian Affairs. A public relations firm was retained to handle a media campaign designed to inform Natives living outside of Alaska about the Act. But non-resident Natives experienced difficulty in completing the application with only the assistance of the accompanying instruction sheets. Organizations of non-resident Natives sought the appointment of enumerators to assist Natives residing outside of Alaska. In Mid-February, 1973, just six weeks before the deadline for filing applications, nineteen Native enumerators were hired to serve Natives living outside of Alaska.

2. The Enrollment Application.

Non-resident Natives who procured enrollment forms received a packet containing a notice, an instruction sheet, and an application.

The notice advised the recipient:²³

This is your official enrollment form . . .. This form will be used to qualify you for your share of the Alaska Native Land Claim Settlement Act of 1971 . . .. All completed applications must be returned and received by the Coordinating Officer: address not later than March 30, 1973 . . ..

The non-resident Alaska Natives who live outside the State of Alaska will have the choice of establishing a 13th Region. The 13th Region will only come into existence if a majority of the non-resident Alaska Natives vote "yes" to be in the 13th Region. The only benefit members of the 13th Region will receive is a share of the $462.5 million in Federal funds and $500 million in revenues from the State of Alaska. Members of the 13th Region will not share in any of the land or revenues (money) derived from the yield of the 40 million acres of land that is owned by the Alaska Natives. If you choose to be enrolled in a village or region for which you qualify (see instructions, especially 16, on your enrollment form) you

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