Stratman v. Leisnoi, Inc.

• Citation: 545 F.3d 1161
• Decision Date: 06 October 2008
• Docket Number: No. 07-35934.,07-35934.
• Parties: Omar STRATMAN, Plaintiff-Appellant, v. LEISNOI, INC.; Koniag, Inc.; Dirk Kempthorne, Secretary of the Interior, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

545 F.3d 1161

Omar STRATMAN, Plaintiff-Appellant, v. LEISNOI, INC.; Koniag, Inc.; Dirk Kempthorne, Secretary of the Interior, Defendants-Appellees.

No. 07-35934.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 6, 2008.

Filed October 6, 2008.

Michael J. Snider, Anchorage, AK, for the plaintiff-appellant.

David C. Shilton, Environmental & Natural Resources Division, U.S. Department of Justice, Washington, D.C., for defendant-appellee Dirk Kempthorne, Secretary of the Interior.

R. Collin Middleton, Anchorage, AK, for defendant-appellee Koniag, Inc.

John Richard Fitzgerald, Morrison Mahoney, Boston, MA, for defendant-appellee Leisnoi, Inc.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, District Judge, Presiding. D.C. No. CV 02-0290 JKS.

Before: D.W. NELSON, A. WALLACE TASHIMA, and RAYMOND C. FISHER, Circuit Judges.

TASHIMA, Circuit Judge:

In 1976, Omar Stratman began his quest to challenge the Secretary of the Interior's (the "Secretary") certification of Woody Island as a native village under the Alaska Native Claims Settlement Act ("ANCSA"). Thirty-two years later, we must decide whether Congress ratified the Secretary's favorable 1974 eligibility determination when, in 1980, it enacted the Alaska National Interest Lands Conservation Act ("ANILCA") which listed Woody Island's village corporation, Leisnoi, Inc. ("Leisnoi"), as a "deficiency village corporation" entitled to lands under ANCSA. We hold that it did. Therefore, we dismiss Stratman's appeal as moot.

BACKGROUND

Statutory Framework

I. ANCSA

Congress enacted ANCSA in 1971 in order to "resolve land disputes between the federal government, the state of Alaska, Alaskan Natives, and non-native settlers." Leisnoi, Inc. v. Stratman, 154 F.3d 1062, 1064 (9th Cir.1998). In its findings and declaration of policy, Congress recognized "an immediate need for a fair and just settlement" of aboriginal land claims that was to be "accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, [and] without litigation...." 43 U.S.C. § 1601(a), (b). In furtherance of this basic purpose, "Alaskan Natives received, in exchange for the extinction of all claims of aboriginal title, approximately forty-four million acres of land and nearly $1 billion in federal funds." Leisnoi, 154 F.3d at 1064. These resources were distributed amongst thirteen "Regional Corporations," groups of Natives unified by a "common heritage and sharing common interests[,]" 43 U.S.C. § 1606(a), and an unspecified number of "Village Corporations," corporate entities based around native villages. 43 U.S.C. § 1607. The native villages were defined to include "any tribe, band, clan, group, village, community, or association in Alaska" either listed by name or determined by the Secretary to have met certain requirements. 43 U.S.C. § 1602(c).

To qualify as a "native village" under ANCSA, the Secretary must determine 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.

43 U.S.C. § 1610(b)(2). Department of the Interior ("DOI") regulations establish procedures for determining village eligibility, and initially envisioned that these determinations would be made by the end of 1973; the Director of the Juneau Area Office ("Regional Director") of the Bureau of Indian Affairs ("BIA") was required to make an initial determination of eligibility not later than December 19, 1973, 43 C.F.R. § 2651.2(a)(8), and protests to the eligibility determination were barred if brought 30 days after publication of the decision, id. at § 2651.2(a)(9). The Regional Director was required to render a decision as to the protest within 30 days, id. at § 2651.2(a)(4), and appeal from that decision could be taken before the Interior Board of Land Appeals ("IBLA"), id. at § 2651.2(a)(5). That decision would not become final until personally approved by the Secretary. Id.

Although ANCSA fixes the total allocation from the Federal government to village corporations at twenty-two million acres, the final allocation of land to each village corporation depends upon the distribution of Native Alaskans in eligible villages. First, the area included in the patent issued to the village corporation varies based on the number of natives residing in the village: for example, a village with twenty-five Native Alaskans is entitled to patent an area of public lands equal to 69,120 acres, while a village with a population of over 600 is entitled to 161,280 acres. See 43 U.S.C. § 1613(a). Next, any difference between the twenty-two million acres reserved for village corporations and the amount of land actually claimed by eligible villages as discussed above must be reallocated "on an equitable basis after considering historic use, subsistence needs, and population." 43 U.S.C. § 1611(b).¹ The final allocation of lands to eligible village corporations is therefore contingent upon the resolution of the eligibility of all other putative villages within each regional corporation. Further, the village allocations affect the computation of lands granted to the regional corporations, if the area patented to the village corporations within a regional corporation exceeds the percentage of acreage allotted to the regional corporation based on its relative size within the state. See 43 U.S.C. § 1611(c)(1)-(2).

Once a village is deemed eligible, its village corporation may select lands pursuant to 43 U.S.C. § 1611. In those situations where land selection criteria cannot be met because of a deficiency of available lands, the Secretary must "withdraw three times the deficiency from the nearest unreserved, vacant and unappropriated public lands[,]" withdrawing, "insofar as possible, ... lands of a character similar to those on which the village is located and in order of their proximity to the center of the Native village[.]" 43 U.S.C. § 1610(a)(3)(A).

The foregoing eligibility and land selection provisions of ANCSA created problems for villages within the Koniag, Inc. ("Koniag") region, Leisnoi's regional corporation, because of a shortage of available lands on Kodiak Island. A further problem for Koniag, and the village corporations in the region, was uncertainty over the status of several putative villages. In the midthrough late-1970s, eleven villages brought suits challenging ineligibility determinations made by the Secretary. See Koniag, Inc. v. Andrus, 580 F.2d 601, 603-04 (D.C.Cir.1978). Congress addressed these problems in ANILCA.

II. ANILCA

Although ANILCA is generally concerned with the designation, disposition, and management of land for environmental preservation purposes, see ANILCA, Pub.L. No. 96-487, § 101, 94 Stat. 2371, 2374-75, (codified at 16 U.S.C. § 3101), part of ANILCA is devoted to the implementation and cleanup of ANCSA. In particular, Part A of Title XIV includes amendments to ANCSA, and Part B contains "Other Related Provisions." See 94 Stat. 2374 (Table of Contents). Those provisions resolve extant membership, land, and village status questions. See id. Section 1427 concerned issues specific to Koniag and was referred to as the "Koniag Amendment."

Section 1427(a) contains several definitions relevant to this dispute. Because of the deficiency of available lands on Kodiak island, the Koniag villages had been previously assigned deficiency lands on the Alaska Peninsula by the Secretary. These lands, described as "Deficiency village acreage on the Alaska Peninsula," were defined as "the aggregate number of acres of public land to which `Koniag deficiency Village Corporations' are entitled under section 14(a) [43 U.S.C. § 1613] ...." § 1427(a)(2), 94 Stat. 2518. The subsection also defined "Koniag deficiency village corporation" explicitly to include Leisnoi. See § 1427(a)(4), 94 Stat. 2519 ("`Koniag deficiency village corporation' means any or all of the following: ... Lesnoi, Incorporated[.]"). Another definition made Leisnoi eligible, upon Koniag's designation, to receive land under § 12(b) of ANCSA, 43 U.S.C. § 1611(b), as a "village corporation[ ] listed ... above[.]" § 1427(a)(5).

Subsection (b) contains several relevant substantive provisions. First, it provides that "[i]n full satisfaction of ... the right of each Koniag Deficiency Village Corporation to conveyance under [ANCSA] of the surface estate of deficiency village acreage on the Alaska Peninsula ... and in lieu of conveyances thereof otherwise, the Secretary of the Interior shall, under the terms and conditions set forth in this section, convey ... lands on Afognak Island ...." § 1427(b)(1), 94 Stat. 2519-20. Pursuant to this exchange of lands on Afognak Island for those on the Alaska Peninsula, the claims of the deficiency villages and Koniag to lands on the Peninsula would be extinguished, all claims arising under ANCSA or this section of ANILCA relating to this transaction would be barred, and the land would be included within the Alaska Peninsula Wildlife Refuge. § 1427(b)(3), 94 Stat. 2522.

Subsection (e) resolves an ongoing legal dispute involving the eligibility challenges by the eleven villages. See Koniag, 580 F.2d at 601. By releasing the United States and its agents from all prior claims arising under ANCSA, they would "be deemed an eligible village" under ANCSA. § 1427(e)(1), 94 Stat. 2525. Finally, subsection (f) provides that "[a]ll conveyances made by reason of this section shall be subject to the terms and conditions of [ANCSA] as if such conveyances (including patents) had been made or issued pursuant to that Act." § 1427(f), 94 Stat. 2526.

Section 1412, in Part A of Title XIV, states that, "[e]xcept as specifically provided in this Act, ...