Opposition Brief — Donnelly v. Eklutna, Inc.

Supreme Court, U.S,

FILED

DEC 5 1988

No. 88-549 JOSEPH F. SPANIOL, UR.

—StERK

In The

Supreme Court of the United States

October Term, 1988

ny

Vv

JAMES W. LEE,

Petitioner,

Vv.

EKLUTNA, INC., UNITED STATES OF AMERICA,

SECRETARY OF THE INTERIOR,

DIRECTOR, BUREAU OF LAND MANAGEMENT,

Respondents,

THERESE U. DONNELLY, Personal Representative

of the Estate of Joseph F’. Donnelly, Deceased,

Respondent.

fy

Vv

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

fh.

Vv

RESPONDENT EKLUTNA, INC.’S

BRIEF IN OPPOSITION

ty

Vv

Davin P. Wor

JAMES 8S. CRANE

Counsel for Respondent,

Eklutna, Inc.

420 L Street, Suite 302

Anchorage, Alaska 99501

(907) 276-5152

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

ur call collect (402) 342-2831

Saby

ee

QUESTIONS PRESENTED

1. Whether §14(c)(1) of the Alaska Native Claims

Settlement Act, 43 U.S.C. 1613(c) (1), should be construed

against a trespasser on Federal land to deny him amnesty

and the right to take the land away from an Alaska Native

Village Corporation, the intended beneficiary of ANCSA

and holder of the patent to the land?

2. Whether the United States is an indispensable

party to a suit filed by a failed homesteader under ANCSA

§ 14(ce) (1) against an Alaskan Native Village Corporation?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....0 ww. i

i nnunsomsinsbaesnsenslisiisiieion ii

TABLE OF AUTHORITIES 0.

lee yy 1 fy Ot gil os) Oe ' | cn 1

REASONS WHY THE PETITION SHOULD BE

I ne as ileal 9

I ANCSA WAS INTENDED TO BENEFIT

ALASKA NATIVES, NOT TO BENEFIT

SII 6 ieee hvac spsncctrcosinncnctnpanincnneentoiie 10

U. THE ALASKA SUPREME COURT HAS

NOT HELD THAT §14(c)(1) OFFERS

AMNESTY TO TRESPASSERS oo... 12

Ill. THE COURT OF APPEALS CORRECTLY

DETERMINED THAT THE UNITED

STATES IS AN INDISPENSABLE PAR-

TY TO LEE’S CLAIM TO A HOME-

ocak eek ahs caat eceadipiohenamaairiadsnonie 15

IV. THE DECISION BELOW WAS JUSTLY

DECIDED AND IS OF LIMITED IMPACT 22

FT| a ena eee Boh, Rm eaieoess 23

NI, scseisccaponsnictaceniaopocaanin SSacusucnssonsnomsioioreosraeeaasnnaraian A-1

ill

TABLE OF AUTHORITIES

CASES

Block v. North Dakota, 461 U.S. 273 (1988) ccc. 18

Buch v. Morton, 449 F.2d 600 (9th Cir. 1971) ow. 7

Buettner v. Kavileo, Inc., — F.2d —, 1988 West

Law 111344 (October 26, 1988) (9th Cir. 1988) ........... 13, 14

California Fed. Sav. and Loan Ass’n. v. Guerra,

479 U.S. 272, 107 S.Ct. 683 (1987) 12

Cape Fox Corp. v. United States, 4 Cl.Ct. 223 (1983) 10

Church of the Holy Trinity v. United States, 143

oa rg eae ae eta 12

Donnelly v. United States, 841 F.2d 968 (9th Cir.

SDE cease ; ia 8, 9, 15, 18

Duluth & Iron Range RR. v. Roy, 173 U.S. 587

apenas ats ah AAR er 9 eI DSRNA te OR 18

Hakala v. Atxam Corporation, 753 P.2d 1144

I NI ear a aa eae 8, 13, 14

Hoofnagle v. Anderson, 20 U.S. (7 Wheat) 212,

am RE I eho aeeceesennnsnscabapentaabeabeoonins 18

Kale v. United States, 489 F.2d 449 (9th Cir. 1973),

cert. dented 417 U.S. G15 (1974) ccc cccccssessssmecssmessccenmeeee 18

Lee v. Eklutna, Inc., — U.S. —, 108 S.Ct. 772 (1988) ..... 5

Lee v. United States, 629 F.Supp. 721 (D.Alaska

1985), aff’d 809 F.2d 1406 (9th Cir. 1987), cert.

denied sub nom Lee v. Eklutna, Inc., — U.S. —,

SE a I tection ene tnantncnemncsen 15, 17

Lee v. United States, 629 F.Supp. 721 (D.Alaska

| EIS RnE thane ASRS Ue oe eae ST rer ao 4, 5, 9,17

Lee v. United States, 809 F.2d 1406 (9th Cir. 1987) .....5, 18

Mine Safety Appliances Co. v. Forrestal, 326 U.S.

9 BE SERRE ee prone aie ener onan ron MA Net 20

iv

TABLE OF AUTHORITIES—Continued

Nichols v. Rysavy, 610 F.Supp. 1245 (D.C.S.D.

1985), aff’d 809 F.2d 1317 (8th Cir. 1987), cert.

denied 108 S.Ct. 147 (1987)

Nichols v. Rysavy, 809 F.2d 1317 (8th Cir.), cert.

denied 108 S.Ct. 147 (1987)

Norfolk Redev. and Housing Auth. v. Chesapeake

and Potomac Tel. Co. of Va., 464 U.S. 30 (1983)... 12

United States v. Public Utilities Commission of

Page

California, 245 U.S. 295 (1955) 11

United States v. Western Pac. RR., 352 U.S. 59

arcs Scisectes ategare nueticade saci ecincaeleceid oo nienaeticiacrletomnsncan 21

Sratutes, REGULATIONS AND RULES

16 U.S.C. 818 (Federal Power Act, § 24) 220. 2,7

28 U.S.C. 1491(a) (1) 5

28 USC. 96000 (Quiet Title Act) 18

28 U.S.C. 2409a(g) .............. 9, 15,18

43 U.S.C. 141 (Pickett Act) (repealed) ..... 7

Alaska Native Claims Settlement Act (ANCSA),

43 U.S.C. 1601 et seq. 1

43 U.S.C. 1601(a) (ANCSA § 2(a)) 6, 10

43 U.S.C. 1601(b) (ANCSA § 2(b)) 6

43 U.S.C. 1603(b) (ANCSA § 4(b)) 0 1

43 U.S.C. 1607(a) (ANCSA § 8(a)) . 1

43 U.S.C. 1610(a) (ANCSA § 11(a)) +

43 U.S.C. 1610(b) (ANCSA § 11(b)) 1

43 U.S.C. 16li(a)(1) (ANCSA § 12(a)(1)) 1

Vv

TABLE OF AUTHORITIES—Continued

Page

43 U.S.C. 1613(a) (ANCSA §14(a)) oon 1

43 U.S.C. 1613(¢e)(1) (ANCSA § 14(e)(1) ...Passim

43 U.S.C. 1613(g¢) (ANCSA §14(g)) ce 5, 14

43 U.S.C. 1621(b) (ANCSA § 22(b) uu... Passim

43 U.S.C. 1621(j)(2) (ANCSA § 22(j)(2)) ...... 20

43 U.S.C. 1632(b) (ANCSA §33(b)) uu. 16

43 C.F .R. § 2650.3-1( a) ec cccccsccsen ese 17

POR. i CG I itis cect ee eee 19

Fed, F Gae, Bee saencccataeee ee 15, 19, 21

Pub. L. 94-579, Section 704(a), 90 Stat. 2792 ~ ce

OTHER AUTHORITIES

2A Sutherland Statutory Construction (4th Ed. 1984) 11

26 Fed.Reg. 2486 (1961) nn cccccscssseucessesssssesssueseueenesc 3

117 Cong. Record 46781, 46785-86, 46788 (Dec. 14,

| | COR SSS 10

STATEMENT OF THE CASE

This case concerns the ownership of sixty-five acres of

land in the Eagle River Valley near Anchorage, Alaska.

Long before any white settlement, the Eagle River Valley

was encumbered by aboriginal title and by traditional sub-

sistence use and occupation of the valley by Alaska Na-

tives.' These traditional claims of aboriginal title by the

Natives were formally presented for adjudication before

the Indian Claims Commission in 1953.2. Donnelly App. E’

at 84a. These claims were extinguished by §4(b) of the

Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C.

1601 et seq. 43 U.S.C. 1603(b). Pursuant to ANCSA, Ek-

lutna, Ine.* (‘* Eklutna’’) was formed as the Village Corpo-

ration which includes as shareholders the Natives of the

area where the disputed land is found. 43 U.S.C. 1607(a),

1610(b). Eklutna selected and received patent to the sur-

face estate to lands, including that currently in dispute, as

settlement of their aboriginal claims. 43 U.S.C. 1611(a)(1),

1613(a).

'The term “Natives” in Alaska includes indians, Aleuts, and

Eskimos.

“Even earlier, all the lands in the Eagle River Valley which

are relevant to this case had been part of the Eklutna Reserve

established under the Indian Reorganization Act. Donnelly App.

E at 84a.

‘Donnelly App.” refers to the Appendix to the Petition

for a Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit in Donneliy v. United States, no. 88-533.

“Pet. App. E” refers to the Findings of Fact in the district court

decision in that case, A75-27 Civil, United States District Court

for the District of Alaska, February 5, 1981.

‘Pursuant to Supreme Court Rule 28.1, Eklutna, Inc. has no

parent company or subsidiary, except wholly-owned subsidiaries.

~

In 1957, James Lee (‘‘Lee’’ or ‘‘petitioner’’) entered

160 aeres, including the land now in dispute, to home-

stead it. CRS 87 (BLM files). The entry occurred thirty-

two years after Power Site Classification (‘‘PSC’’) 107

had withdrawn the disputed land from appropriation un-

der the publie land laws for power site purposes under Sec-

tion 24 of the Federal Power Act, 16 U.S.C. 818, and seven

years after PSC 399 had also withdrawn the land. Donnel-

ly, App. E at 60a. Although in 1952 the Federal Power

Commission (**FPC’’) deiermined that the value of the

disputed land would not be injured or destroyed for the

purposes of power development by location or entry, td. at

Gla, the Secretary of Interior never acted pursuant to

to Section 24 of the Federal Power Act to revoke the with-

drawal, and the land therefore remained closed to entry.

At the time Lee filed his notice of location, he was noti-

fied in writing that ‘“‘OCCUPANCY OR USE IS AT

YOUR OWN RISK UNTIL FURTHER NOTICE FROM

THE LAND OFFICE.’’ CR 87. In 1958, Lee was advised

in a letter from the FPC that, ‘‘We do not find that any

restoration to entry of the subject lands has yet been made.

Restoration is a function of the Bureau of Land Manage-

ment ....°' CR 76, Ex. 4. In February 1959, Lee and

other settlers in the area sent a letter to the Secretary of

the Interior asking for a clarification of their situation. CR

108, Ex. K. The Assistant Secretary responded in March

of that year, stating that the settlement could not be rec-

ognized under existing law, that Lee was in trespass, and

that even if the lands were re-opened to entry, Lee would

*“CR” refers to court record in the Lee case, no. A79-336,

United States District Court for the District of Alaska.

I.

not have preference rights. CR 108, Ex. L. These positions

were repeated in a letter sent by the BLM in August 1959,

which also denied Lee’s entry. CR 80.

In 1961, BLM filed a platted survey of the area that

delineated, inter alia, the boundaries of Classification 399

in relation to the potential homestead sites selected by peti-

tioners. 26 Fed.Reg. 2486 (1961). Immediately afterwards,

on April 27, 1961, BLM issued final decisions rejecting

Lee's entry insofar as they conflicted with the power site

withdrawal. Donnelly App. C at 36a.

Nevertheless, Lee filed a homestead entry final proof

covering 160 acres in 1962. CR. 87. However, his final

proof indicated a deficit in his cultivation requirements.

/d.. Thereafter, Lee and his attorney met with the BLM to

attempt a compromise. CR 87; CR 76, Ex. 20. Lee was al-

lowed to ‘‘clarify’’ his final proof testimony at which time

he increased the amount of acreage he claimed cultivated.

He was required to buiid a habitable dwelling on the 95

acres located outside the withdrawn area and cultivate

acreage in this area. CR 87. His prior residency on lands

-withdrawn from entry was considered ‘‘constructive’’ for

purposes of gaining title to the 95 available acres. CR 76,

Ex. 21, 22, 23.

Lee accepted the compromise. He submitted the proof

of construction of a habitable dwelling and cultivation as

required, CR 87. Although he was represented by legal

counsel, Lee did not appeal the BLM’s decision not to grant

him the withdrawn 65 acres. CR 76, Ex. 21. In November,

1964, patent was issued to Lee for the 95 acres outside the

power reserve. CR 76, Ex. 25. Lee thereafter had no ap-

plication pending for additional acreage and took no fur-

ther action to pursue his original homestead claim. How-

ever, in 1967, Lee petitioned the BLM for restoration of

the disputed land, which would have opened the land to

homestead entry by interested persons. CR 87. Lee’s peti-

tion was rejected in 1968, which decision was affirmed by

the national office. Lee did not make further appeal to the

Secretary. Id.

In 1970, Lee was served with a trespass notice, direct-

ing him to vacate the 65 acres inside the power reserve.

In compliance with that notice, Lee moved off the land by

November 1971. CR 105, 121 (Lee deposition pages 46-47,

181.)

Upon the adoption in December 1971 of ANCSA, the

disputed land was again withdrawn to allow for selection

and conveyance to Native corporations in settlement of

their aboriginal claims. 43 U.S.C. 1610(a). Eklutna, Inc.

(‘‘Ekdutna’’) selected the disputed land, the required no-

tice was given by publication, and patent was issued to

Eklutna in 1979. CR 87. Having compromised and settled

his claims in 1963-64, Lee v. United States, 629 F.Supp.

721, 724-25 (D.Alaska 1985), and having no applications

pending, Lee was no longer of record at this time.

Fifteen years after accepting the settlement and re-

ceiving patent to 95 acres, Lee filed a complaint in federal

district court against the United States and Eklptna, CR

1. The case was consolidated with similar cases filed by

two other claimants. CR 61. Lee sought patents from the

United States to the portion of Eklutna’s land for which he

had sought to make homestead entries. He also sought

conveyance from Eklutna on a variety of grounds: that

Eklutna held the land subject to a constructive trust for the

benefit of Lee; that he was entitléd to conveyance of the

land as a homestead under ANCSA § 22(b), 43 U.S.C.

1621(b); that he was entitled to the land on the grounds

that he had ‘‘prior existing rights’’ under ANCSA § 14(g),

43 U.S.C. 1613(g); that he was entitled to the land as its

occupier under ANCSA § 14(c)(1), 43 U.S.C. 1613(¢)(1),

which requires a Native Village corporation to convey land

to, inter alia, a person who occupies it as a principal place

ot residence. See Lee v. United States, supra at 725.

In January, 1985, the district court granted judgment

in favor of the United States and Eklutna on all claims ex-

cept the claim under ANCSA §14(c)(1). Lee v. United

States, 629 F.Supp. 721 (D.Alaska 1985). The judgment

of the district court was affirmed on appeal. 809 F.2d 1406

(9th Cir. 1987). This Court denied Lee’s Petition for Cer-

tiorari under the name Lee v. Eklutna, Inc., — U.S. —-, 108

S.Ct. 772 (1988).

Lee’s § 14(¢c)(1) claim was consolidated with that of

another party, Joseph Donnelly, in Donnelly v. United

States, No. A75-27 Civil, United States District Court for

the District of Alaska. CR-D’ 284. On November 26, 1986,

the district court issued its Findings of Fact and Conclu-

sions of Law granting summary judgment to Eklutna.

®Lee also filed monetary claims against the United States

for an alleged taking of his property. The district court dis-

missed those claims, holding that because the amount in con-

troversy exceeded $10,000, the Claims Court had exclusive juris-

diction under 28 U.S.C. 1491(a)(1). 629 F.Supp. at 733-34. Lee

did not seek review of that ruling in the court of appeals.

™CR-D” refers to the Donnelly Court Record, No. A75-27

Civil, United States District Court for the District of Alaska.

Donnelly App. C at 32a-49a. The court held that individ-

uals cannot assert claims based on ANCSA § 14(c)(1) to

the surface estate of lands conveyed to Alaska Native Vil-

lage Corporations when these lands have been withdrawn

from entry by the United States prior to the time that the

individuals entered and remained upon them. Jd. at 33a-

34a, 42a. The court further held that the lands at issue

were validly withdrawn as part of Power Site Classifica-

tions 107 and 399, and that they were never subsequently

restored to public entry under the public land laws. Jd.

at 42a.

The district court rejected the contention that all that

is required for an individual to obtain rights to village cor-

poration lands under 4 14(e)(1) is that the person physi-

cally ‘‘oceupied [those lands] as of December 13, 1971...

as a primary place of residence, or as a primary place of

business, or as a subsistence camp site, or as headquarters

for reindeer husbandry,’’ regardless of the status of those

lands or the individual’s right to use or reside upon them.

43 U.S.C. 1613(¢e)(1). The court stated that Lee’s inter-

pretation of §14(c)(1) would operate to change the well

established principle that individuals could not obtain

rights under the public land laws to lands that had been

withdrawn from entry by the federal government. Don-

nelly App. 48a (citations omitted). The court also felt it

was ‘‘inconceivable’’ that Congress intended to reward

trespassers at the expense of Alaska Natives when ANCSA

was intended to provide “a fair and just settlement” of all

native land claims to serve “the real economie and social

needs of [Alaska’s] natives.” 48 U.S.C. 1601(a)-(b). The

court stated that it would be ‘*peculiar’’ for such a statute

ee —*

to transform an individual’s trespass into valid title. Don-

nelly App. C at 44a.

In an attempt to avoid trespasser status, Lee and

Donnelly argued that they had equitably vested title to

the disputed lands because those lands were not validly

withdrawn when they initiated their claims. Lee and Don-

nelly contended that Power Site Classifications 107 and

399 did not constitute orders withdrawing lands from

entry because they did not contain the word ‘‘withdraw”’

and that the-Secretary of the Interior could not exercise

the President’s authority to withdraw lands for power

purposes under the Pickett Act, 43 U.S.C. 141 (repealed

October 21, 1976 by Pub. L. 94-579, Section 704(a), 90

Stat. 2792). The court rejected those arguments. Don-

nelly App. C 45a-46a. The court also rejected the claim-

ants’ contention that, even if the 1925 and 1950 orders

validly withdrew the lands, 424 of the Federal Power

Act, 16 U.S.C. 818, required that the lands automatically

became open to public entry when the Federal Power

Commission issued its ‘‘no-injury’’ determination in 1952.

The court held that § 24 is not ‘‘self-executing’’ and that

it explicitly ‘‘contemplates action by the Secretary to

terminate the [withdrawal] classification.’? Donnelly

App. C at 47a, citing Buch v. Morton, 449 F.2d 600 at 607

(9th Cir. 1971). Because the Secretary did not issue an

express order restoring the lands to entry, the lands re-

mained withdrawn. Donnelly App. C at 48a. Moreover,

the court further noted that, even if the Secretary had

issued such an order, the State of Alaska would have been

entitled to the first-preference rights, and qualified vet-

erans would have had a superior right to other claimants,

such as Lee and Donnelly. Donnelly App. C at 48a.

Following certifications under Civil Rule 54(b), Lee

and Donnelly appealed’. The Ninth Cireuit ruled against

Lee and Donnelly in a decision filed on March 10, 1988

and amended on June 27, 1988. Donnelly v. United States,

841 F.2d 968 (9th Cir. 1988).2 The court affirmed the

district court’s holding that ANCSA §14(¢)(1) could not

operate as an amnesty provision extending rights to indi-

viduals who are merely trespassers, failed homesteaders,

or land users without any vested rights prior to December

18, 1971 because there was no indication of congressional

intent to override the established principal that individ-

uals could obtain no rights to withdrawn lands. 841 F.2d

at 975. In so ruling, the court approved the district court’s

position that congressional intent to provide a ‘‘just and

fair settlement’’ of native land claims is inconsistent with

an interpretation of §14(c)(1) that would reduce the

land patented to native corporations in favor of tres-

passers. Id.

The court also ruled against Lee on his claim that he

was not a trespasser for the purposes of §14(¢)(1) by

virtue of title having equitably vested before ANCSA

withdrew all lands in 1971. Not deciding this issue on

the merits of such title, the court ruled that such title

was based on a homestead claim. Adopting the reasoning

SOnly Eklutna’s claims for ejectment are still pending.

*The reported decision is not the Amended Opinion, which

is set forth at Donnelly App. A. The decisions differ in that the

Amended Opinion contains a reference to a case decided by

the Alaska Supreme Court during the period between the two

court of appeals’ decisions, Hakala v. Atxam Corp., 753 P.2d

1144 (Alaska 1988). Donnelly App. A at 16a, n.9. See infra at

pp. 13 to 14.

from the Lee district court decision, 629 F.Supp. 730-32,

that ANCSA could not require Native corporations to re-

solve the merits of a homesteader’s title dispute with the

government, the court of appeals held that the United

States was an indispensable party to a determination of a

§ 14(c)(1) claim based on a disputed homestead claim.

In order to challenge the validity of the patents to Ik-

lutna, Lee had to establish his own entitlement to the

disputed lands, which he could do only in direct proceed-

ings against the United States. The United States could

not be made a party because the statute of limitations

had run under the Quiet Title Act, 28 U.S.C. 2409a(g).

Donnelly, supra at 974-975. Therefore, Lee’s and Don-

nelly’s claims were dismissed.

Lee then filed this petition for certiorari. Donnelly

has also filed a petition for certiorari on the § 14(c)(1)

issue and others, entitled Donnelly v. United States, no.

88-549.

o

REASONS WHY THE PETITION

SHOULD BE DENIED

In affirming the district court’s grant of summary

judgment against Lee, the court of appeals correctly held

that the language and intent of ANCSA § 14(c)(1) do

not require that trespassers be awarded land at the ex-

pense of Native Corporations, the intended beneficiaries

of ANCSA, and that the United States is an indispens-

able party to an ANCSA § 14(e)(1) claim based on a

homesteading claim. The court of appeals’ decision does

not conflict with any decision of this Court, any decision

10

of another court of appeals, or with any decision of a

state court of last resort. The decision does not present

a question of general importance that should be reviewed

by this Court.

I. ANCSA WAS INTENDED TO BENEFIT ALASKA

NATIVES, NOT TO BENEFIT TRESPASSERS.

ANCSA was enacted in 1971 as a comprehensive set-

tlement of the claims of Alaska Natives based upon abor-

iginal title. 43 U.S.C. 1601(a); 117 Cong. Reeord 46781,

46785-86, 46788 (Dee. 14, 1971). Its overall purpose is to

provide ‘‘a fair and just settlement of all claims by Na-

tives and Native groups of Alaska, based on aboriginal

land claims...’ 43 U.S.C. 1601(a). Congress further

intended that ANCSA be liberally interpreted in favor of

the Natives. Cape Fox Corp. v. United States, 4 Cl.Ct.

223, 231 n. 11 (1983).

Notwithstanding the fact that it is absurd to contend

that a comprehensive status enacted to settle Native claims

and to be liberally construed in favor of the Natives some-

how grants rights to a trespasser like Lee, he argues that

§14 (c)(1) states in plain terms that an individual who

oceupied land in Alaska on December 18, 1971 is entitled

to receive a deed.'° Lee seeks to isolate a single clause in

Lee’s claim of occupancy is dubious because he did not

actually occupy the disputed land on December 18, 1971. In

his Petition for Certiorari at p. 6, Lee claims that he has lived

on the ‘unitary’ 160 acre tract since 1958, except for a period

of military service. Without citation to the record below, he

further claims that after being served with a Notice of Trespass

by the BLM in 1971, he removed “some of his improvements’

(Continued on following page)

|

i

11

a much larger statute, which is in turn but one part of the

entire body of the public land laws. The preper approach

for interpreting §14(c)(1) is to construe that provision

in light of ANCSA as whole, giving equal weigh to all

provisions in the enactment and construing the overall

act so as to harmonize its various provisions. 2A SUTH-

ERLAND STAT. CONST. §§ 46.05, 47.02 (4th Ed. 1984).

Section 14(c)(1) cannot be read in literal terms where

the literal meaning would produce absurd results. United

States v. Public Utilities Commission of California, 345

U.S. 295, 315 (1953). If Lee is correct in asserting that

§14(c)(1) applies in this situation, then every rejected

homestead entryman, every unsuccessful applicant for a

trade and manufacturing site or headquarters site, and

every person who has failed to lawfully acquire a small

tract entry, will have vested rights under 4 14(c)(1).

Lee’s interpretation would sweep aside all applicable land

laws concerning homesteads, trade and manufacturing

sites, headquarters sites, and small tracts. Yet there is

nothing in § 14(c)(1) or any other part of ANCA which

repeals these laws. On the contrary, ANCSA § 22(b) con-

cerning homesteads makes it clear that these laws are to be

fully enforced.

Even worse, under Lee’s interpretation, willful tres-

pass and knowing violation of the public land laws would

(Continued from previous page)

from the disputed land. However, in his deposition, Lee ad-

mitted that he removed his physicai improvements from the

disputed land. This Opposition, supra at 4. Apparently, Lee

is trying to treat residence on the 95 acres he accepted as a com-

promise to his homestead claim as residence on the remaining

65 acres. Lee cannot show he occupied as a primary place of

residence any more than the land he received as a homestead.

12

be rewarded under § 14(e)(1). Since § 14(¢) (1) clearly re-

quires occupancy, a rejected entryman who obeyed the pub-

lic land laws, relinquished his or her unlawful entry, and

moved off the land prior to ANCSA could gain no rights

under ¢ 14(c)(1). Those who stayed in spite of the rejec-

tion of their unlawful entries, trespass notice, and full

knowledge that they had no right to entry or occupancy,

would be entitled to benefits under § 14(c) (1).

Although the language of §14(c)(1) contains only a

reference to occupancy, it is a ‘‘familiar rule, that a thing

may be within the letter of the statute and yet not within

the statute, because not within its spirit, nor within the in-

tention of its makers.’’ California Fed. Sav. and Loan

Ass'n. v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 691 (1987),

quoting Church of the Holy Trinity v. United States, 143

U.S. 457, 459 (1892). As in all cases of statutory construc-

tion, this Court’s task is to interpret the words of the stat-

ute in light of the purposes Congress sought to serve. Nor-

folk Redev. and Housing Auth. v. Chesapeake and Potomac

Tel. Co. of Va., 464 U.S. 30, 36 (1983). ANCSA was never

designed to be remedial legislation for homesteaders whose

entries had been rejected. Since ANCSA was enacted for

the purpose of remedying prior wrongs and neglect suf-

fered by the Native peoples of Alaska, it must be construed

in light of this purpose. Lee’s interpretation is not just

inconsistent with the spirit of ANCSA, it would actually

defeat the basic intent of the Act.

II. THE ALASKA SUPREME COURT HAS NOT HELD

THAT §14(c)(1) OFFERS AMNESTY TO TRES-

PASSERS.

Lee maintains that the ‘‘gist’’ of his petition is whether

the courts should “transpose” the limitations of the home-

13

stead laws to § 14(¢e)(1) reeconveyances. Petition at 15. He

argues that in Hakala v. Atram Corporation, 753 P.2d 1144

(Alaska 1988), the Supreme Court of Alaska adopted a

reading of 4 14(c)(1) that held that there were ‘‘no condi-

tions under that statute to preexisting titles or withdraw-

als.’’ Petition at 21. Lee implies that the decision in Hak-

ala is in conflict with the court of appeals’ decision in this

case. Petition at 16. Lee’s characterization of the Hakala

ease is erroneous, because the Alaska Supreme Court

found that a condition to a §14(¢c)(1) reconveyance was

legal occupancy. That finding was echoed in Buettner v.

Kavileo, Inc., —- F.2d —, 1988 West Law 111344 (October

26, 1988) (9th Cir. 1988). ;

In Hakala, the Alaska Supreme Court held that a hunt-

ing guide was entitled to a §14(c)(1) reconveyance of a

hunting cabin and curtilage used as a primary place of

business. The Alaska Supreme Court saw “the primary

issue’’ as being ‘‘how the court should interpret the phrase

‘a primary place of business’ as contained in § 14(c)(1) of

ANCSA.” 753 P.2d at 1147. The court perceived the

phrase ‘‘a primary place of business’’ as effectuating Con-

gress’ intent to protect a ‘‘wide array of existing legiti-

mate businesses,’’ those who were using the lands in ‘‘an

established, legal and routime fashion.’’ Jd. (Emphasis

added.) The court in Hakala was apparently not con-

fronted with a trespasser or a claimant who was on the land

illegally. Although the decision by the court of appeals in

this case was apparently not brought to the attention of

the Alaska court, the Alaska court clearly recognized that

a claimant under 4 14(¢c)(1) must be legally on the land in

order to state a claim, a status which Lee did not have.

i¢

In an extremely recent decision, the Ninth Circuit has

noted that Hakala is consistent with an interpretation of

14(c)(1) that denies a right of reconveyance to illegal oc-

eupants but grants a right to legal occupants. Buettner v.

Kavilco, Inc., supra. In that case, the plaintiff, who held

a special use permit from the United States Forest Ser-

vice to build a year-round residence on land selected

by the defendant Native corporation, sought recon-

veyance of the land pursuant to §14(¢c)(1). The court

of appeals held that the plaintiff’s status as a ‘‘prior ex-

isting right’? under ANCSA §14(g) (43 U.S.C. 1613(g))

did not preclude a claim under § 14(¢)(1). 1988 West Law

111344 at p. 2. Noting that the decision of the court of ap-

peals in this case denied rights under § 14(c)(1) to tres-

passers, the court found that the plaintiff was legally on

the land by virtue of the Forest Service permit and that the

Hakala decision also recognized the rights of legal occu-

pants. 1988 West Law 111344 at pp. 2-3.

Thus, the courts that have considered the matter have

consistently stated that §14(c)(1) grants rights only to

legal occupants, not illegal ones. Both the federal and

Alaska state courts are in agreement on that point. For

that reason, Lee misses the point when he characterizes the

gist of this case as being the transposition of homestead

law onto ANCSA. The gist of this case is his own invalid

occupancy, which Congress clearly did not intend to be a

basis for a claim under § 14(¢)(1).

15

III. THE COURT OF APPEALS CORRECTLY DETER-

MINED THAT THE UNITED STATES IS AN IN-

DISPENSABLE PARTY TO LEE’S CLAIM TO A

HOMESTEAD.

As discussed above at pp. 7-9, Lee attempted to show

legal occupancy by claiming that he had equitable vested

title to the disputed land. The court of appeals correctly

dismissed this claim without reaching the merits. The

court reasoned that such a claim was essentially a home-

stead claim against the United States; the statute of limi-

tations on the homestead claim had run under the Quiet

Title Act, 28 U.S.C. 2409a(g), so that the United States

could not be made a party; dismissal was required under

Fed. R. Civ. P. 19(b) because the United States was an

indispensable party. 841 F.2d at 975. In his Petition, Lee

never directly asks for reversal of this ruling, perhaps in

recognition that he had previously substantially litigated

the indispensable party issue and lost. Lee v. United

States, 629 F.Supp. 721 (D.Alaska 1985), aff’d 809 F.2d

1406 (9th Cir. 1987), cert. denied sub nom Lee V. Eklutna,

lnc., — U.S. —, 108 S.Ct. 772 (1988). See pp. 5-6, supra.

The court of appeals correctly determined that Lee’s

claim under § 14(¢)(1) based on equitably vested titie was

essentially a homestead claim. Although Lee never argues

that his occupancy arose from anything other than an at-

tempt at homesteading, the argument is indirectly made

that the §14(c)(1) claim is independent from the home-

stead claim. See, Petition at 21 (‘‘By enacting § 14(c) (1)

Congress intended a new, independent grant to arise as of

the date of conveyance . .. .’’). Under this theory,

§ 14(c)(1) would also have to protect lawful homestead en-

tries, since Congress could never be deemed to have pro-

16

tected unlawful entries while sacrificing lawful ones. But

Congress obviously did not agree with Lee’s interpretation

of § 14(c)(1). In order to protect valid homestead entries,

it was deemed necessary to add ANCSA § 22(b), which

deals with homestead claimants, and even more specifically

with homestead claimants who had not performed all re-

quirements of law for a patent, as evidenced by receiving

certificate of final proof. As to claimants who had ob-

tained a certificate of final proof, § 22(b) provides that

they should receive patent as soon as possible. As to clain-

ants who had not obtained a certificate of final proof, they

would be permitted to perfect their claims and ultimately

obtain patent. Section 22(b) would not have been necessary

if Congress had originally intended that § 14(¢)(1) was to

apply to homestead entries.

Thus, § 14(c)(1) does not address persons such as Lee

who have made formal entry under the homestead laws.

Formal entries upon the public lands pursuant to the home-

stead laws are governed exclusively by § 22(b), and rights

are accorded only to lawful entries in full compliance with

the applicable statutes. The court of appeals therefore

correctly concluded that Lee’s § 14(c)(1) claim is essential-

ly a homestead claim and should be treated as such.

As a further argument that his equitable title claim

under § 14(c)(1) should not be treated the same as his

homestead claim under § 22(b), Lee also contends that

the fact that ANCSA §33(b) (43 U.S.C. 1632(b)) pro-

vides a separate statute of limitations for judicial review

of a Native Corporation’s § 14(c)(1) decisions is evidence

that Congress ‘‘believed that §14(c) had nothing to do

either with the Quiet Title Act or the Secretary’s land title

decisions under ANCSA.”’ Petition at 24-25. In a sense,

17

Lee is perfectly correct: Congress did not intend that

homestead claims under 22(b) could be renewed or re-

litigated through the ‘‘backdoor’”’ of § 14(¢)(1). A sepa-

rate statute of limitations for § 14(c)(1) claims is neces-

sary because of the fact that §14(c)(1) rights are as-

serted only after patent of land by the federal government

to a Native Corporation, and after the Native Corpora-

tion makes the initial determination of a claimant’s rights.

In contrast, § 22(b) operates prior to, rather than follow-

ing, any ANCSA conveyance: it requires the Secretary

of Interior to assess the validity of potentia! claims that

might be raised under the homestead laws before econvey-

ing lands involving such claims to native corporations.

The Secretary’s regulations provide that he will not con-

vey to a Native corporation any land for which he de-

termines that valid homestead entries have been made.

43 C.F.R. §2650.3-1(a). See, Lee v. United States, 629

F.Supp. 721, 729-731 (D.Alaska 1985). Therefore, the fact

that Congress enacted a statute of limitations for review

of a Native Corporation’s § 14(c)(1) decisions does not

mean that Congress intended to extend or revive home-

stead claims or to confer new substantive rights on home-

steaders.

Having correctly perceived that Lee’s § 14(¢) (1) claim

based on ‘‘equitable title’? is essentially a homestead

claim, the court of appeals correctly applied the reason-

ing from Lee’s previous case in dismissing the § 14(c) (1)

claim for the failure to join the United States as an in-

dispensable party. Lee v. United States, 629 F.Supp. 721

(D. Alaska 1985), aff’d 809 F.2d 1406 (9th Cir. 1987), cert.

denied sub nom Lee v. Eklutna, Inc., — U.S. —, 108 S.Ct.

18

772 (1988). Claims against the United States for patents

to the disputed land are governed by the Quiet Title Act,

28 U.S.C. 2409a. Id.; Block v. North Dakota, 4061 U.S.

273 (1983). Lee knew or should have known of the United

Staies’ claim to the disputed land in 1961 at the very

latest when the BLM issued the final decisions denying

his homestead claims. Lee, 809 F.2d at 1410; Donnelly,

supra at 974. Because Lee did not file suit until at least

fifteen years later, the claim against the United States

is barred by the twelve year statute of limitations in 28

U.S.C. 2409a(g). 7d. Congress intended for seetion 2409.

(zg) to apply retroactively. Block, supra at 286, n.3.

The court of appeals correctly decided that Lee’s

equitable title claim had to be dismissed in the absence

of the United States as a party. That claim ‘‘ean only

properly establish [his] entitlement to the lands in direct

proceedings against the United States.’’ Lee v. United

States, 809 F.2d at 1411. In order to establish his entitle-

ment to the lands, Lee must show his own entitlement as

against the United States. Jd. at 1410; Kale v. United

States, 489 F.2d 449, 454 (9th Cir. 1973), cert. denied 417

U.S. 915 (1974):

Kale has no basis for an attack upon the land

patent granted to Cord. A United States patent is

protected from easy third-party attack. Hoofnagle

v. Anderson, 20 U.S. (7 Wheat) 212, 5 L.Ed. 437 (1822).

It is not sufficient for one challenging a patent to

show that the patentee should not have received the

patent; he must also show that he (the challenger)

is entitled to it. Duluth & Tron Range RR. v. Roy,

173 U.S. 587, 590 (1899). (Citation omitted.)

The result of this suit on the merits will depend en-

tirely upon whether Donnelly was entitled to patent from

19

the United States government. Eklutna is an innocent

party, having selected available lands, according to the

public records, in settlement of its aboriginal claims. The

‘‘United States is the party who issued the fee patent in

question, thus setting the entire series of events in motion

that resulted in the action.’’ Nichols v. Rysavy, 610 F.

Supp. 1245, 12538 (D.C.S.D. 1985), aff'd 809 [*.2d 1317

(8th Cir. 1987), cert. denied 108 S.Ct. 147 (1987) (United

States held to be an indispensable party to suit challenging

the validity of fee patents issued to Native Americans).

Federal Rule of Civil Procedure 19(a) sets forth the

conditions for determining if a person ought to be joined

as a party,’ and Rule 19(b) deseribes the conditions under

which a suit should be dismissed if joinder is not possible.

The United States is a party that should be joined

under Rule 19(a) because it has an ‘‘interest’’ that would

be impaired if Lee were to prevai! on the merits against

Eklutna: if Eklutna loses this action and has to convey

the disputed land to Lee, the United States will have te

make up the acreage to Eklutna. As discussed above at

pp. 15-17, the court of appeals correctly characterized Lee’s

§ 14(¢)(1) claim as a homestead claim. Congress intended

"Rule 19(a) states:

A person who is subject to service of process and

whose joinder will not deprive the court of jurisdic-

tion over the subject matter of the action shall be

joined as a party in the action if (1) in the person’s

absence complete relief cannot be accorded among

those already parties, or (2) the person claims an in-

terest relating to the subject cf the action and is so

situated that the disposition of the action in the per-

son’s absence may (i) as a practical matter impair or

impede the person’s ability to protect that interest... .

20

that the Village Corporation’s land entitlements not be

reduced by homestead claims, which Congress saw as being

decided under § 22(b) prior to conveyance to Village Cor-

porations. Supra at 16-19. Consistent with this intent,

43 UsS.C. 1621(j)(2) (ANCSA § 22(j)(2)) requires the

Secretary of the Interior to make additional acreage avail-

able to the Village Corporations for selection and con-

veyance, if the original selections were inadequate. If

Eklutna’s land is reduced because it is required to re-

eonvey the disputed land to Lee to satisfy a § 14(c)(1)

claim which is essentially a homestead claim, the United

States will be required to make up that acreage to Ek

lutna.

Thus, whether the United States will be deprived of

additional land depends precisely on whether Lee pre-

vails in his suit against Eklutna. But ‘‘the government’s

liability cannot be tried behind its back.’? Mine Safety

Appliances Co. v. Forrestal, 326 U.S. 371, 375 (1945),

cited in Nichols v. Rysavy, 809 F.2d 1317, 1333 (Sth Cir.),

cert. denied, 108 S.Ct. 147 (1987) (United States was in-

dispensable party to suit attacking fee patents to Native

Americans. )?

'2The United States may also have an interest because reso-

lution of this case would turn on a variety of factual and legal

issues that directly implicate the interests of the United States—

e.g., whether the Secretary of the Interior erred when he deter-

mined that the land within the withdrawal area was not avail-

able for homestead entry, whether Lee otherwise complied with

the homestead laws, whether other persons would have had

superior claims to the lands, and whether Lee abandoned or

compromised his claims in the 1960's. In the normal course, all

of these questions would be decided by the Secretary in_the

(Continued on following page)

21

An analysis using the four-part test provided in Rule

19(b) that must be applied in each case to determine

whether, in equity and good conscience, the action should

proceed in the absence of the United States shows that

the court of appeals correctly determined that the action

should not proceed. The first part is whether a judgment

will prejudice the absent party. Here, the prejudice to

the United States is clear. As explained above, the United

States will have to make up any land reconveyed under

§ 14(e)(1) by Eklutna to Lee for his homestead claim.

The second part of the test is whether relief may be

shaped to lessen the harm to the absent party. In this

case, there appears no way to tailor a judgment in favor

of Lee that would lessen the prejudice to the United

States. Moreover, a result that would require Eklutna

to bear the loss of land conveyed to Lee is unfair, since

even Lee does not contend that Eklutna was at fault; any

alleged legal error in the cirenmstances of this case in-

stead is attributable to the federal government in its ad-

ministration of the publie land laws.

The third and fourth parts of the test mentioned in

Rule 19(b) are whether a judgment rendered in the United

States’ absence would be adequate-and whether the plain-

tiff would have an adequate remedy if the action is dis-

missed for non-joinder. Although these factors are some-

(Continued from previous page)

first instance under the doctrine of primary jurisdiction (see,

e.g., United States v. Western Pac. RR., 352 U.S. 59, 63-64

(1956), and the Secretary would be a party to any suit seeking

judicial review. This interest was asserted by the government

in the Brief for the Federal Respondents in Opposition to Lee’s

previous petition for certiorari. No. 87-642.

ey

——

what in favor of not requiring dismissal of Lee’s claim

to equitable title, it should be noted that the latter part

of the test is not particularly compelling: at one time,

Lee did have an adequate remedy in the nature of a suit

against the United States, but he voluntarily allowed the

statute of limitations to run.

Thus, ‘‘equity and good conscience’’ hardly compel

allowing Lee’s claims against Eklutna to proceed in the

absence of the United States. Lee’s problems are of his

own making, and they are not of Eklutna’s making. By no

later than 1961, he knew of the government’s position that

the land was not available for homesteading, but he failed

to bring suit for more than eighteen years. If Lee had

sued in a timely manner, the government would have been

a defendant. If Lee had prevailed, the disputed lands

could have been excluded from the grants to Eklutna.

In light of Lee’s lack of diligence and in light of the

basic unfairness to Eklutna arising from having to re-

solve the merits of Lee’s homestead claim against the

government, the court of appeals’ conclusion that the

United States is an indispensable party squarely comports

with ‘‘equity and good conscience.’’

IV. THE DECISION BELOW WAS JUSTLY DECIDED

AND IS OF LIMITED IMPACT.

Although of great importance to Eklutna, this case

will have no practical impact outside the state of Alaska.

Even within the state, its impact will be limited to failed

homesteaders of lands conveyed to Native Corporations.

Eklutna does not know how many such failed homesteaders

there are, but there are almost certainly not the ‘‘thou-

23

sands’’ Petitioner alleges (Petition at 27) without the

slightest shred of evidence in the record.

This case involves nothing more than the argument

of a failed homesteader that ANCSA, which was enacted

for the benefit of Alaska’s Natives, provides him with

amnesty from his failure to comply with the provisions of

federal law concerning homesteads and, thereby, entitles

him to sixty-five acres in addition to the ninety-five he

has already received. The district court’s and the court

of appeal’s interpretation of § 14(c)(1) that distinguishes

between legal and illegal occupants, whether Native or

non-Native, is just and fair.

o

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

Davin P. Wor

JAMES S. CRANE

Counsel for Respondent,

Eklutna, Inc.

CopELAND, Lanpyk&, BENNETT

AND WOLF

420 L Street, Suite 302

Anchorage, Alaska 99501

(907) 276-5152

A-1

APPENDIX”

28 U.S.C. 1491(a)(1)

The United States Claims Court shall have jurisdic-

tion to render judgment upon any claim against the United

States founded either upon the Constitution, or any Act

of Congress or any regulation of an executive department,

or upon any express or implied contract with the United

States, or for liquidated damages in cases not sounding in

tort. For the purpose of this paragraph, an express or

implied contract with the Army and Air Foree Exchange

Service, Navy Exchanges, Marine Corps Exchanges, Coast

Guard Exchanges, or Exchange Councils of the National

Aeronauties and Space Administration shall be considered

an express or implied contract with the United States.

43 U.S.C. 141 (repealed)

The President may, at any time in his discretion, teii-

porarily withdraw from settlement, location, sale, or entry

any of the public lands of the United States, ineluding

Alaska, and reserve the same for water-power sites, irri-

gation, classification of lands, or other publie purposes

to be specified in the orders of withdrawals, and such with-

drawals or reservations shall remain in force until re-

voked by him or by an Act of Congress.

3Petitioner did not submit an appendix, apparently relying

on the appendix submitted in the related case, Donnelly v.

Eklutna, Inc., et al., no. 88-533 (pending). Eklutna will similarly

utilize the Donnelly Appendix, as supplemented by this ap-

pendix.

A-2

43 U.S.C. 1603. Declaration of Settlement

(b) Aboriginal title and claim extinguishment where

based on use and occupancy; submerged lands under-

neath inland and offshore water areas and hunting or

fishing rights included

All aboriginal titles, if any, and claims of aboriginal

title in Alaska based on use and oceupancy, including sub-

merged land underneath all water areas, both inland and

offshore, and including any aboriginal hunting or fishing

rights that may exist, are hereby extinguished.

438 U.S.C. 1607. Village Corporations

(a) Organization of Corporation prerequisite to receipt

of patent to lands or benefits under chapter

The Native residents of each Native village entitled

to receive lands and benefits under this chapter shall or-

ganize as a business for profit or nonprofit corporation

under the laws of the State before the native village may

receive patent to Jands or benefits under this chapter, ex-

cept as otherwise provided.

43 U.S.C. 1610. Withdrawal of public lands

(b) List of Native villages subject to chapter; review;

eligibility for benefits; expiration of withdrawals for

villages; alternative eligibility; eligibility of unlisted

villages

(1) The Native villages subject to this chapter are

as follows:

NAME OF PLACE AND REGION

Eklutna, Cook Inlet

A-3

438 U.S.C. 1611. Native Land Selection

(a) Acreage limitation; proximity of selections and size

of sections and units; waiver

(1) During a period of three years from December

18, 1971, the Village Corporation for each Native village

identified pursuant to section 1610 of this title shall select,

in accordance with rules established by the Secretary, all

of the township or townships in which any part of the vil-

lage is located, plus an area that will make the total selec-

tion equal to the acreage to which the village is entitled

under section 16138 of this title. The selection shall be made

from lands withdrawn by section 1610(a) of this title:

Provided, that no Village Cerporation may select more

than 69,120 acres from lands withdrawn by section 1610

(a)(2) of this title, and not more than 69,120 acres from

the National Wildlife Refuge System, and not more than

69,120 acres in a National Forest: Provided further, That

when a Village Corporation selects the surface estate to

lands within the National Wildlife Refuge System or Naval

Petroleum Reserve Numbered 4, the Regional Corporation

for that region may select the subsurface estate in an

equal acreage from other lands withdrawn by section

1610(a) of this title within the region, if possible.

Fed. R. Civ. P. 19(b) Determination by Court When-

ever Joinder Not Feasible

If a person as described in subdivision (a)(1)-(2)

hereof cannot be made a party, the court shall determine

whether in equity and good conscience the action should

proceed among the parties before it, or should be dis-

A4

missed, the absent person being thus regarded as indis-

pensable. The factors to be considered by the court in-

elude: first, to what extent a judgment rendered in the

person’s absence might be prejudicial to the person or

those already parties; second, the extent to which, by pro-

tective provisions in the judgment, by the shaping of re-

lief, or other measures, the prejudice can be lessened or

avoided; third, whether a judgment rendered in the per-

son’s absence will be adequate; fourth, whether the plain-

tiff will have an adequate remedy if the action is dis-

missed for nonjoinder.