Williams v. Babbitt

• Decision Date: 28 May 1997
• Docket Number: No. 95-35607,95-35607
• Citation: 115 F.3d 657
• Parties: 97 Cal. Daily Op. Serv. 3982, 97 Daily Journal D.A.R. 6755 Thomas E. WILLIAMS; Alaska Reindeer, Inc.; Reindeer Herders Association, Inc., Plaintiffs-Appellants, v. Bruce BABBITT, in his capacity as the United States Secretary of the Interior; Cesar Niles, in his capacity as Juneau Area Director of the United States Bureau of Indian Affairs, Defendants-Appellees, Kawerak Reindeer Herders Assoc., Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 657

115 F.3d 657

97 Cal. Daily Op. Serv. 3982, 97 Daily Journal

D.A.R. 6755

Thomas E. WILLIAMS; Alaska Reindeer, Inc.; Reindeer

Herders Association, Inc., Plaintiffs-Appellants, v. Bruce BABBITT, in his capacity as the United States

Secretary of the Interior; Cesar Niles, in his capacity as

Juneau Area Director of the United States Bureau of Indian

Affairs, Defendants-Appellees,

Kawerak Reindeer Herders Assoc., Defendant-Intervenor-Appellee.

No. 95-35607.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 8, 1996.

Decided May 28, 1997.

Walter T. Featherly, Koval & Featherly, P.C., Anchorage, AK, for plaintiffs-appellants.

Edward J. Shawaker, Sylvia F. Liu, Judith Rabinowitz, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, for defendants-appellees.

Eric Smith, Anchorage, AK, for defendant-intervenor-appellee.

Michael R. Doyen, Munger, Tolles & Olson, Los Angeles, CA, for Alaska Federation of Natives, Chugach Alaska Corp. and Cook Inlet Region, Inc., Amicus Curiae.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-94-00245-JWS.

Before: GOODWIN, BRUNETTI and KOZINSKI, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge.

We must decide whether the Reindeer Industry Act of 1937, 25 U.S.C. §§ 500 et seq., prohibits reindeer herding by non-natives in Alaska.

I

Contrary to popular belief, reindeer are neither native to Alaska nor part of the Alaskan native way of life. Around the turn of the century, white settlers had just about exhausted the natural food supply of Alaskan natives, who traditionally relied on fishing and hunting. Dr. Sheldon Jackson, the famous missionary, realized that raising livestock could provide natives a stable food supply, so he arranged for the importation of reindeer from Russia. ¹ See Alaska Legislation: Hearing on Bills Relating to the Territory of Alaska Before the House Comm. on the Territories, 75th Cong., 1st Sess. 4-5 (1937) (statement of Rep. Dimond). But white settlers also muscled into the reindeer business, prompting Congress to pass the Reindeer Act of 1937. The Act appropriated $2 million to buy all reindeer owned by non-natives in Alaska and give them to the natives. The Act also strictly limits the sale of reindeer to non-natives.

In 1986, appellant Williams informed the Bureau of Indian Affairs Area Director in Alaska that he intended to import reindeer from Canada for commercial purposes; he asked whether his plan would run afoul of the Reindeer Act. See Reindeer Herders Ass'n v. Juneau Area Dir., 23 IBIA 28, 35 (1992). The Area Director referred the inquiry to the Regional Solicitor's Office, which held that it would not. Nothing in the Act, the Solicitor noted, specifically prohibits non-natives from owning and selling reindeer. The Solicitor further noted that the Act's prohibitions on selling reindeer to non-natives apply only to two categories of reindeer: those owned by the government and those owned by natives, see 25 U.S.C. § 500i ("Live reindeer in Alaska, and the increase thereof, acquired by the Secretary of the Interior ..., and live reindeer in Alaska, and the increase thereof, owned by the said natives ... shall not be sold or transferred ... to anyone other than ... natives of Alaska...."). The Regional Solicitor, therefore, held that these restrictions didn't apply to appellants' imported Canadian reindeer and that appellants were free to sell their reindeer to anyone. See Reindeer Herders Ass'n, 23 IBIA at 35-37 (quoting the Regional Solicitor's opinion). In 1989, the Regional Solicitor reconsidered the issue and reached the same conclusion. See id. at 39-41. The Area Director officially adopted the Regional Solicitor's interpretation, and native reindeer herders appealed to the Interior Board of Indian Appeals (IBIA).

The IBIA acknowledged that the Act says nothing about non-native ownership of reindeer. Nevertheless, it held that, based on the Act's policy, structure and legislative history, the statute "must be construed to prohibit non-Native entry into the reindeer industry in Alaska, regardless of the source of the reindeer involved." Id. at 69. The district court upheld the IBIA's interpretation and rejected appellants' claim that the Act violates equal protection. See E.R. at tab 9. The non-native reindeer herders appeal.

II

We start, as did the Regional Solicitor, by noting that the Reindeer Act does not by its terms guarantee Alaskan natives a monopoly in the reindeer business. To be sure, a lot there suggests that Congress meant to give natives a big leg up in the business. The Act's declared purpose is to "preserv[e] the native character" of the reindeer industry, 25 U.S.C. § 500, and it authorizes the Secretary of Interior to organize and manage the reindeer industry so that natives have "responsibility ... in all branches of said industry," id. § 500f. To that end, the Act directs the Secretary to buy all reindeer and equipment needed to effectuate the Act's purpose, id. § 500a, and imposes a continuing duty on any non-natives who come into possession of reindeer to register them with the Interior Department, id. § 500b, presumably so the government can buy the reindeer for the natives. Most significantly, the Act prohibits the sale of government- and native-owned reindeer to non-natives unless the reindeer are to be slaughtered within 30 days of sale or exported from Alaska "and never brought back alive." Id. § 500i.

Taken as a whole, these provisions do place significant obstacles in the way of any non-native who would operate a reindeer business in Alaska. To begin with, as of 1937, the Act ensured that only natives would be established in the industry; a non-native who wanted to get into the business would have had to overcome the advantages of incumbency enjoyed by natives, and suffered the disadvantage of not being allowed to buy local reindeer or any of their offspring. See 25 U.S.C. § 500i. At the time the Act was passed, this meant that non-natives would have had to obtain the reindeer from Scandinavia or Russia where they are indigenous. Moreover, non-natives intending to start a reindeer business would have had to buy grazing land, as the government allows only natives to graze reindeer on federal land. Id. § 500m; 43 C.F.R. § 4310.2 (1995). This too would have been a huge obstacle because 99% of land in Alaska, until statehood in 1950, was owned by the federal government. See Richard O. Stern, et. al, Eskimos, Reindeer, and Land 187 (1980). Congress may well have thought that, by passing the Act, it was effectively precluding anyone other than natives from entering the reindeer business. Nevertheless, nothing in the Act actually prohibits non-natives from entering the Reindeer business if they can overcome all these obstacles. ²

Were we interpreting the statute free from any constraint, therefore, we would conclude that the Reindeer Act does not proscribe appellants' activities. But, as often happens, we must construe the statute subject to a number of countervailing considerations. In the first place, we owe the IBIA's interpretation substantial deference. See Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). ³ Then too, we are required to construe statutes favoring Native Americans liberally in their favor. See, e.g., County of Yakima v. Confederated Tribes and Bands, 502 U.S. 251, 269, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992). Weighing on the other side is appellants' claim that the Reindeer Act, as interpreted by the IBIA, violates the constitutional guarantee of equal protection of the laws.

III

It is a close question whether-even giving the agency the full measure of deference to which it is entitled under Chevron and adding in the special solicitude to which that interpretation is entitled because it favors natives-we could uphold the agency's interpretation. The simple fact is that the Act-which is so explicit on so many points-does not say the one thing the agency reads it to say: that non-natives may not herd reindeer. ⁴ This is not a minor detail-a mere interstice-that the agency is entitled to fill in at its discretion. Rather, the total and perpetual exclusion of a majority of the population of Alaska from a particular enterprise is the kind of significant feature we would normally expect Congress to spell out if that were its intent. We are aware of no other provision in the Code of Federal Regulations that effectuates quite so sweeping a policy based on such ambiguous statutory language.

At the same time, we recognize that for the past 60 years natives have enjoyed a de facto monopoly in the Alaskan reindeer business. This monopoly has developed under the watchful supervision of the agency charged with enforcing the Reindeer Act and is, therefore, entitled the added force of a long-standing construction. See Reindeer Herders Ass'n, 23 IBIA at 34 (noting that, since 1939, the Interior Department and general public "assumed" the Act precluded non-native ownership). Under these circumstances, we conclude that the agency's interpretation of the Reindeer Act, favoring natives as it does, is not unreasonable.

IV

This only brings us to a far more complex question: To what extent is a court bound to defer to an agency's interpretation where that interpretation raises difficult constitutional questions? The Supreme Court has spoken twice on this subject. In DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988), the Court rejected the NLRB's interpretation of section 8(b)(4) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4), that would have prohibited certain handbilling by unions. See 485 U.S. at 588, 108 S.Ct. at 1404. Although the NLRB was entitled to Chevron deference, id. at 574, 108 S.Ct. at 1397, the Court refused to defer to...