Edwardsen v. Morton

• Decision Date: 19 April 1973
• Docket Number: Civ. A. No. 2014-71.
• Citation: 369 F. Supp. 1359
• Parties: Charles EDWARDSEN, Jr., Individually and as Executive Director of the Arctic Slope Native Association, et al., Plaintiffs, v. Rogers C. B. MORTON, Secretary of the United States Department of the Interior, and his successors and predecessors in Office, et al., Defendants.
• Court: U.S. District Court — District of Columbia

369 F. Supp. 1359

Charles EDWARDSEN, Jr., Individually and as Executive Director of the Arctic Slope Native Association, et al., Plaintiffs, v. Rogers C. B. MORTON, Secretary of the United States Department of the Interior, and his successors and predecessors in Office, et al., Defendants.

Civ. A. No. 2014-71.

United States District Court, District of Columbia.

April 19, 1973.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

O. Yale Lewis, Seattle, Wash., admitted pro hac vice, for plaintiffs.

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

MEMORANDUM-ORDER

GASCH, District Judge.

This case came on for consideration on the defendants' motion for summary judgment and the entire record herein. Plaintiffs are certain Native villages on the Arctic Slope (also termed the North Slope) of Alaska, the Arctic Slope Native Association, the Inupiat Community of the Arctic Slope, and certain individual Inupiat Eskimos living in the region concerned. Defendants are Rogers C. B. Morton, the Secretary of Interior (hereafter called "the Secretary") and three other Department of Interior officers responsible for public lands management or Indian affairs at the time this action was brought, namely, Louis R. Bruce, Commissioner, Bureau of Indian Affairs; Harrison Loesch, Assistant Secretary for Public Land Management; and Burton Silcock, Director, Bureau of Land Management. The successors and predecessors in office of the Secretary, Commissioner Bruce, and Assistant Secretary Loesch are also named as defendants.

The issues in this action are not susceptible of easy capsulization. At the risk of considerable oversimplification, plaintiffs' claims can be said to concern actions by defendants which allegedly violated plaintiffs' rights in Arctic Slope lands and waters by facilitating allegedly unlawful transfers of land to the State of Alaska and by issuing purported authorizations for third-party trespasses on the lands and waters in question. Plaintiffs have not moved for summary judgment because they properly believe issues of material fact must be resolved in their favor before the relief they request could be granted.

Defendants raise a number of defenses in their motion for summary judgment. Their principal defense is that plaintiffs never had rights of the kind alleged and even if they did, any suit based directly or indirectly on those asserted rights is barred by the Alaska Native Claims Settlement Act of 1971, 85 Stat. 688 (hereafter termed Settlement Act).

Interests of great importance are ultimately at stake in this action. Seen against the dark backdrop of this nation's often callous treatment of Native Americans, plaintiffs' claims are especially compelling. On the other hand, defendants rightly emphasize the desire of Congress to bring to an end a period of intolerable uncertainty about the potential impact of Native claims on land titles and mineral leases in Alaska.

I. Background.

The legal issues are more easily grasped if the history out of which they have arisen is at least briefly sketched in. The Arctic Slope of Alaska where the Inupiat Eskimos live was occupied by their ancestors for many hundreds of years before them.¹ In this area they, like their ancestors, have sustained themselves by fishing, hunting, and trapping. When Alaska was acquired by the United States from Russia in 1867, the treaty, in unfortunate language, provided as follows:

The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.²

The United States, through Congress, did proceed to enact laws containing provisions that concerned the Alaskan Natives. Among other acts, it recognized the Natives' right not to be disturbed in the possession of lands they occupied until such time as Congress should act to extinguish their occupancy rights,³ and it authorized the Secretary of Interior to issue deeds to Alaskan Natives for townsites under certain conditions.⁴ However, no treaties were negotiated, and the creation of reservations, although authorized, was negligible. The lands involved in this action are not reservation lands.

In 1958, the admission of Alaska to the Union was accomplished by the enactment of the Alaska Statehood Act of July 7, 1958, 72 Stat. 339, as amended, 73 Stat. 141 (hereafter termed Statehood Act). The Statehood Act provided for selections by the State of over 100 million acres, to be chosen from public lands that were "vacant, unappropriated, and unreserved at the time of their selection."⁵ Selections from public lands other than national forest lands required the approval of the Secretary of Interior, the officer with authority to patent such lands to the State.⁶ Section 6(g) of the Act further provides: "Following the selection of lands by the State and the tentative approval of such selection by the Secretary of Interior or his designee, but prior to the issuance of final patent, the State is hereby authorized to execute conditional leases and to make conditional sales of such selected lands."⁷ The Act also contained a provision, Section 4, which the legislative history indicates was intended to maintain the status quo as to Native property rights until Congress should act further on the matter.⁸

During the 1960's, the State made selections of large areas of land in, among other places, the Arctic Slope of Alaska, a region in which the existence of large oil deposits had been suspected. During this same period, protests from various Alaskan Native organizations were mounting in the face of State selections of land in which the Natives claimed rights they believed to be inconsistent with valid State selections. The proportion of the State land area affected by these protests was great. Thus, a report issued in 1968 by the Federal Field Committee for Development Planning in Alaska indicated that of 272 million acres in the public domain, Alaskan Natives had claimed title, based on continuous use and occupancy, to 250 million acres; and of 12 million acres "in the process of selection by State under the terms of the Statehood Act," Alaskan Natives claimed all but 100,000 acres.⁹ In the Arctic Slope Area, which is the subject of the action herein, exhibits filed by plaintiffs indicate that Native claims covered virtually the entire region.¹⁰

Partly in response to such protests, an informal land freeze was instituted by Secretary of Interior Udall late in 1966; issuances of mineral leases on federal lands and approvals or tentative approvals of State selections were suspended pending Congressional determination of Native land rights.¹¹ Large areas of land had been selected by the State before the freeze, however, and reports of oil deposits in one area selected—the Prudhoe Bay region on the Arctic Slope —were confirmed in 1968. The Secretary had given tentative approval to selections in this area, and the State moved quickly to exploit its good fortune, executing a sale of leases to oil companies in 1969 for a price in excess of 900 million dollars.

In the meantime there was a movement in Congress to enact legislation which would end the uncertainty about the nature and extent of Native rights in land already selected by the State and land which the State might wish to select upon the termination of the freeze. Finally, in 1971, in order to provide "a fair, just, and final settlement of all land claims of Alaskan Natives, Native villages, and groups," Congress passed the Settlement Act.¹² As will be apparent from the discussion below of the legal issues, defendants believe that this Act effectively bars all of plaintiffs' claims; and plaintiffs contend not only that the Act does not bar their claims but that it enables them to select large sections of the oil-rich lands on the Arctic Slope which had previously been transferred to Alaska.¹³

II. Plaintiffs' Claims.

Plaintiffs' claims fall into two main categories: (1) challenges to the validity of certain titles to land and interests in leasable minerals, which allegedly rest on unlawful acts by the defendants; and (2) claims for compensation for alleged trespasses by third parties who, it is asserted, entered plaintiffs' lands under color of the allegedly invalid titles or of permits, licenses, and the like unlawfully issued by defendants. As subsequent discussion will reveal, defendants' summary judgment motion is sufficient to defeat some, but not all, of plaintiffs' claims. For that reason it is necessary to review the claims in some detail. To clarify the theories of the Amended Complaint, the Court will, in the following discussion, be drawing on plaintiffs' brief in opposition to the defendants' motion.

It is necessary at the outset to define Native land rights as plaintiffs see them before reviewing plaintiffs' theories regarding the ways in which defendants have allegedly violated these rights. Plaintiffs claim that by ancient authority Native Americans have enjoyed exclusive possessory rights in their aboriginal lands even after the European conquest of America. Plaintiffs cite the early cases of Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), and a long succession of later cases as demonstrating that these rights—sometimes referred to as "aboriginal title" or "Indian title"— are based simply on continued use and occupancy of lands, and can be...