Koniag, Inc. v. Kleppe, Civ. A. No. 74-1061

• Court: United States District Courts. United States District Court (Columbia)
• Citation: 405 F. Supp. 1360
• Docket Number: 75-452,74-1134,75-485 and 75-1097.,74-1790 to 74-1795,Civ. A. No. 74-1061
• Parties: KONIAG, INC., et al., Plaintiffs, v. Thomas S. KLEPPE, Secretary of the Interior, Defendant.
• Decision Date: 14 November 1975

405 F. Supp. 1360

KONIAG, INC., et al., Plaintiffs, v. Thomas S. KLEPPE, Secretary of the Interior, Defendant.

Civ. A. Nos. 74-1061, 74-1134, 74-1790 to 74-1795, 75-452, 75-485 and 75-1097.

United States District Court, District of Columbia.

November 14, 1975.

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Edward Weinberg, Frederick D. Palmer, Frederick L. Miller, Jr., John P. Meade, Stephen M. Truitt, Washington, D. C., Allen McGrath, Anchorage, Alaska, F. Conger Fawcett, San Francisco, Cal., for plaintiffs.

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

MEMORANDUM

GESELL, District Judge.

The eleven plaintiffs have filed separate complaints challenging decisions of the Secretary of the Interior which found each of them ineligible to take land and revenues under the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1601 et seq. (Supp. III, 1973). When it appeared at a status conference that these separate cases raise a number of questions common to one or more of the complaints, plaintiffs and defendant agreed that the cases should be consolidated to hear those questions which could be adequately presented on cross-motions for summary judgment.¹ This was done. The records of the separate administrative hearings involving each of the villages held before the Secretary have been filed with the Clerk of Court to provide necessary support for references to matters raised by the summary judgment motions. In addition, various depositions were taken relevant to certain issues and these are also before the Court. Following elaborate briefing and extended oral arguments continuing over two days the common issues are now before the Court for determination.

Before attempting to identify the various contentions of the parties it is necessary to delineate the nature of the settlement with Alaska Natives accomplished through the Alaska Native Claims Settlement Act and to describe the procedures which were adopted by the Secretary through regulations to carry out his responsibilities under the Act.

The Alaska Native Claims Settlement Act of December 18, 1971, sought to accomplish a fair, rapid settlement of all aboriginal land claims by Natives and Native groups of Alaska without litigation. The history of the legislation is contained in the Conference Report, S.Rep.No.92-581, 92d Cong., 1st Sess., U.S.Code Cong. & Admin.News 1971, p. 2192. Impetus for this legislative settlement came from a realization that the aboriginal claims which had long existed created serious obstacles to development of Alaska's newly discovered oil and other natural resources and raised questions as to Alaska's ability to take dominion over public lands that might otherwise be chosen by it under the provisions of the Alaska Statehood Act and other legislation. Under the Settlement Act, 40 million acres of land and $962,200,000 were to be disbursed to regional corporations and villages that qualified. In exchange, all aboriginal titles and claims were extinguished. The Secretary of the Interior was given the responsibility to administer the complex program outlined in the legislation. This was a difficult and onerous task since it was to be performed with finality in a brief period without creating a reservation system or lengthy wardship or trusteeship. Adding to this difficulty is the fact that the Act lacks precision in a number of respects and contains ambiguities which are not clarified by the legislative history.

The land and funds made available through the Act are to be divided among thirteen regional corporations in which Natives hold stock and whatever Native villages are found eligible. Congress gave recognition to the obvious fact that some Alaska Natives had abandoned traditional life styles and villages. Settlement of claims with those Natives was to be confined to their entitlement to stock in the Native Regional Corporations which were funded by the statute, 43 U.S.C. §§ 1602(g), 1605, 1606, 1608, 1611 (Supp. III, 1973). In addition, section 12(a) of the Act authorizes Native villages of 25 or more Natives in existence on April 1, 1970, the United States census date, to select out of the public domain substantial tracts of surrounding land. This selection is to be made as specified in section 14, which provides that villages are entitled to acreages depending upon the population of each village and authorizes conveyance of from 69,120 acres to villages having between 25 and 99 Natives to as many as 161,280 acres to villages having 600 or more Natives. Section 12 (a), however, provides that no village corporation may select more than 69,120 acres from the National Wildlife Refuge System or from a National Forest. This village land ownership, among other things, assured the continued existence of the traditional life style and economies of the Natives.

Section 3(c) of the Act, 43 U.S.C. § 1602 (Supp. III, 1973), defines "Native villages" as:

"Native village" means any tribe, band, clan, group, village, community, or association in Alaska listed in sections 1610 and 1615 of this title, or which meets the requirements of this chapter, and which the Secretary determines was, on the 1970 census enumeration date (as shown by the census or other evidence satisfactory to the Secretary, who shall make findings of fact in each instance), composed of twenty-five or more Natives.

Sections 11(b)(1) and 16(a), 43 U. S.C. §§ 1610(b)(1), 1615(a) (Supp. III, 1973), list 215 geographic locations which were considered to be villages presumptively eligible to receive lands and other benefits. Section 11(b)(2), 43 U.S.C. § 1610(b)(2) (Supp. III, 1973), provides:

Within two and one-half years from December 18, 1971, the Secretary shall review all of the villages listed in subsection (b)(1) hereof, and a village shall not be eligible for land benefits under section 1613(a) and (b) of this title, and any withdrawal for such village shall expire, if the Secretary determines that —

(A) less than twenty-five Natives were residents of the village on the 1970 census enumeration date as shown by the census or other evidence satisfactory to the Secretary, who shall make findings of fact in each instance; or,

(B) the village is of a modern and urban character, and the majority of the residents are non-Native.

Any Native group made ineligible by this subsection shall be considered under section 1613(h) of this title.

Villages that were not listed might also be eligible for benefits under the Act. Section 11(b)(3), 43 U.S.C. § 1610(b)

(3) (Supp. III, 1973), provides:

Native villages not listed in subsection (b)(1) hereof shall be eligible for land and benefits under this chapter and lands shall be withdrawn pursuant to this section if the Secretary within two and one-half years from December 18, 1971, determines that —

(A) twenty-five or more Natives were residents of an established village on the 1970 census enumeration date as shown by the census or other evidence satisfactory to the Secretary, who shall make findings of fact in each instance; and

(B) the village is not of a modern and urban character, and a majority of the residents are Natives.

Prior to engaging in the review of the 215 places listed in the Act and the numerous additional places not listed in the Act which sought recognition, the Department of the Interior, under the Secretary's direction, conducted rule-making procedures which culminated in the adoption of regulations to govern the mechanics of the decision-making process on Alaska Native village eligibility, 43 C.F.R. Part 2650 et seq., adopted May 30, 1973, effective July 2, 1973, 38 Fed. Reg. 14218.

In implementing these requirements of the Act, the Secretary promulgated the following criteria (43 C.F.R. § 2651.2):

2651.2 (b) Except as provided in subparagraph (4) of this paragraph, villages must meet each of the following criteria to be eligible for benefits under sections 14(a) and (b) of the act:

(1) There must be 25 or more Native residents of the village on April 1, 1970, as shown by the census or other evidence satisfactory to the Secretary. A Native properly enrolled to the village shall be deemed a resident of the village.

(2) The village shall have had on April 1, 1970, an identifiable physical location evidenced by occupancy consistent with the Natives' own cultural patterns and life style and at least 13 persons who enrolled thereto must have used the village during 1970 as a place where they actually lived for a period of time. Provided, That no village which is known as a traditional village shall be disqualified if it meets the other criteria specified in this subsection by reason of having been temporarily unoccupied in 1970 because of an act of God or government authority occurring within the preceding 10 years.

(3) The village must not be modern and urban in character. A village will be considered to be of modern and urban character if the Secretary determines that it possessed all the following attributes as of April 1, 1970:

(i) Population over 600.

(ii) A centralized water system and sewage system that serves a majority of the residents.

(iii) Five or more business establishments which provide goods or services such as transient accommodations or eating establishments, specialty retail stores, plumbing and electrical services, etc.

(iv) Organized police and fire protection.

(v) Resident medical and dental services, other than those provided by Indian Health Service.

(vi) Improved streets and sidewalks maintained on a year-round basis.

(4) In the case of unlisted villages, a majority of the residents must be Native, but in the case of villages listed in sections 11 and 16 of the act, a majority of the residents must be Native only if the determination is made that the village is modern and urban pursuant to subparagraph (3) of this paragraph.

The Secretary's regulations also required that the Juneau, Alaska, Area Office of the Bureau of...