Petition — Koniag, Inc. v. Andrus

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Ea Supreme Court, U.S }

i FILED

;

1} Ste 2 1978

‘MIGHASL RODAK, JR., CLERK |

IN THE

Supreme Court of the United States

OcToBER TERM, 1978

Ne. %8-519

Kona, Inc., et all.,

Petitioners,

Ceci, D. Anprus, Secretary of the Interior,

Respondent.

————e

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA

EpWARD WEINBERG

FREDERICK L. MILLER, JR.

1775 Pennsylvania Ave., N.W.

Washington, D. C. 20006

F. Concer Fawcetr

1 Maritime Plaza

San Francisco, California 94111

Attorneys for Petitioners

Of Counsel:

)

Puiuie L. CHasor, Jr.

Duncan, Brown, WEINBERG & PALMER, PC

| 1775 Pennsylvania Ave., N.W.

Washington, D.C. 20006

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

Pe ee Cg cw od welt se aew he On on at 1

IN Sodan aba scn dep svenead-s6s cenes yeubeaees 2

Comeraeets PRINTED 5 occ cw cece etic cccescswcvesces 2

ConSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS

SUED «wie Vin he 6 0 a Alin 658 0K 0h a soe eed ed obs 3

Sravusemme ow wate Cag... mec ccccce spe cucecccvveces 4

Reasons ror GRANTING THE WRIT ..........-sceccees 11

ee Oe ee ee a ie ee eee alee g 22

Aprrenpix A—Alaska Native Claims Settlement Act,

P.L. 92-203, 85 Stat. 688, 43 U.S.C. § 1601, et seq. . la

Aprenpix B—Department of Interior, Bureau of Land

Management Regulations, 43 C.F.R. Part 2651 ... 30a

Aprenptx C—Opinion of the Court of Appeals Below . 37a

Aprrenpix D—Opinion of the District Court Below .... 70a

Aprenpix FE—ANCAB Decision re Village of Uyak .. 92a

Apprenpix F—ANCAB Decision re Village of Litnik ..129a

Arrenptx G—ANCAB Decision re Village of Anton

RS ey ree eres oe ee eee Poe 135a

Arrenptx H—ANCAB Decision re Village of Uganik ..146a

Aprenvix I—ANCAB Decision re Village of Bells

SE, sasaliveG acdick d+ an Gao ahSue deus vaheeshe ane 172a

Arprenpix J—ANCAB Decision re Village of Ayakulik .182a

Aprenpoix K—ANCAB Decision re Village of Port

William

Aprenpix L—ANCAB Decision re Village of Solomon .217a

Arrenpix M—ANCAB Decision re Village of Sala-

SNE eee aaa WdeRs Ge vada adie tities 235a

ii Table of Contents Continued

Page

Apprenpix N—ANCAB Decision re Village of Alexan-

Ge TG os oo oc chceacy rs Hebb sea T eae Vers 4 261la

Arpenpix O—Excerpts of ALJ Recommended Deci-

sions re Villages of Anton Larsen Bay and Bells

PRUE Wn 6-64 cache acececentsectdsdathehateruwnes 338a

TABLE OF AUTILORITIES

Cases:

Alaska v. American Can Co., 358 U.S, 224 (1959) .... 138

Alaska Pacific Fisheries v. United States, 248 U.S. 78

4 PPP rere rere reer Pate rrr eek Te 17

American Airlines, Inc. v. C.A.B., 231 F.2d 483 (1956) 21

Archambault v. United States, 224 F.2d 925 (10th Cir.

SOD ho kth obs oe ep Rac bend en cuaberewanne’s 17

Association of Data Processing Service Organizations

vy, Cotman; SUT UB. 30D 1301) > i5 «weirs: events 16

Bryan vy, Itasca County, 426 U.S. 373 (1976) ......... 17

Choate v. Trapp, 224 U.S. 665 (1912) .........eeee 12,17

Choctaw Nation v. United States, 100 F, Supp. 318 (Ct.

Cl. 1941), cert denied, 348 U.S. 956 (1952) ...... 19

Dorsey v. Kingsland, 173 F.2d 405 (D.C. Cir.) rev. on

other. grounds, 338 U.S. 318 (1949) .........0e ees 21

Hickman v. Taylor, 329 U.S, 495 (1947) ........ eens 15

Koniag, Inc. v. Kleppe, 405 F. Supp. 1360 (1975) ....2, 14

Lemon v. Kurteman, 411 U.S, 192 (19738) -............ 15

McClanahan vy. State Tax Commissioner, 411 U.S. 164

CREE eos whens Vee pakke bal teesian senses 17

National Welfare Rights Organization v. Finch, 429

Oe A CE Cy CED Go cc cada ideas cabveces 16

Northern Cheyenne Tribe vy. Hollowbreast, 425 U.S.

Ga WLOOEE oa krokk Mane Meee te de lindbateens tuebas 17

Rockbridge v. Lincoln, 499 F.2d 567 (9th Cir. 1971) .. 17

Sierra Club v. Morton, 405 U.S. 727 (1972) .......... 15

Squire v. Capoeman, 351 U.S. 1 (1956) ...........05. 17

Uniled Church of Christ v. FCC, 359 Fed, 2d 994 (D.C.

CEE, ME v<u'vig Sune Rhees Vine we eee Saws ob ss 16

United States v. Coleman, 390 U.S. 599 (1968) ...... 13

United States v. Leahey, 434 F.2d 7 (1st Cir, 1970) ... 17

United States ex rel Lowe v. Fisher, 223 U.S. 95 (1912) 20

United States v. Nixon, 418 U.S. 683 (1974) .......... 17

United States v. Ruzicka, 329 U.S, 287 (1946) ........ i

a a Aen

eT ee Tm ee TT eee

Table of Authorities Continued iii

Page

United States v. Rumely, 345 U.S, 41 (1953) ......... 15

United States v. Santa Fe Pacific R.R., 314 U.S, 339

SRT bay pete Ra alae cca htia Wikilnale 0 k.dy binsetia 17

United States v. SCRAP, 412 U.S. 669 (1973) ...... 15, 16

United States v. Singer Mfq. Co., 374 U.S. 174 (1963). 15

United States v. Zazove. 334 U.S, 602 (1948) ........ 13

Vitarelli v. Seaton, 359 U.S. 535 (1959) ............. 17

Watkins v. United States, 354 U.S. 178 (1957) ........ 15

Willapoint Oysters, Inc. v. Evwing, 174 F.2d 676 (9th

SENG ck Soa Souda hee Patek os uke ehwrds bien 17

STATUTES:

Bet OF Ming 17, TOOK, So Btmt. Bb oi. ccc ce ctieccsennes 1]

Act of March 3, 1891, 26 Stat. 1005 .........ccccccccs 11

Act of May 14, 1898, 30 Stat. 409 ....... cu cece ccc cees 11

Act of May 17, 1906, 34 Stat. 197 2.0... wo cece eee 1]

Act of May 25, 1926, 44 Stat. 629 ............ccee cess 11

Wet. OF Sune GB; TF0 SP BMG OEE ove ce icesccccdeccds 11

PA TU a bee ai ea bab ce Gam ane ve 2i baketews 16

pie Te | Oe te ee ee ere

Se SUS SEEN G60 % i ledins Wik ve Werte Oto etalon’, 2

28 U.S.C. $§ 1331, 1361, 1362, 2201, and 2202 .......... 4

OF Re a orig ee Ss oo ba 8 b08 be duc ees vais passim

48 U.S.C. Pree. § 21, 72 Stat. 339, as amended ........ 12

Recunations:

41 Pod. Reg. 14734, ef seq. .....cccccvccccccveeets . 14

Se RA een SNe Ce, Oe BOS: ob vn oes de coseaknecdoewes 7

GF CLP as SOE oka ctvace addy Rhee MEK om Poo sm 5 Oe 3, 7,18

MISCELLANEOUS!

Alaska Native Claims, Hearings Before the Subeomm.,

on Fisheries and Wildlife Conservation and the

Invironment of the Comm. on Merchant Marine

and Fisheries, 93d Cong., 2d Sess. (1975) ....... 9

S. Rep. 92-581, 92d Cong., Ist Sess. (1971)... ..... 4

Treaty of March 30, 1867, 15 Stat. 539 .............. 11

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No.

Konuaa, Inc., et al.,

Petitioners,

Ceci, D, Anprus, Secretary of the Interior,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA

ee ee

The petitioners Koniag, Inc., Cook Inlet Region,

Inc., Bering Straits Native Corporation, and the Vil-

lages of Uyak, Uganik, Litnik, Anton Larsen Bay,

Bells Flats, Ayakulik, Port William, Salamatof, Alex-

ander Creek and Solomon respectfully pray that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

District of Columbia entered in this proceeding on

April 28, 1978.

OPINIONS BELOW

i The Opinion of the United States Court of Appeals

| for the District of Columbia, not yet reported, appears

in the Appendix hereto as Appendix C. The opinion

of the United States District Court for the District

of Columbia is reported at 405 F. Supp. 1360 (D.D.C.

1975) and appears in the Appendix hereto as Ap-

pendix D.

JURISDICTION

The judgment of the United States Court of Ap-

peals for the District of Columbia was entered on

April 18, 1978. Upon application timely made, peti-

tioners requested and on July 10, 1978, were granted

by Mr. Justice Brennan, a sixty day extension of time,

to and including September 25, 1978, within which to

file this petition. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1),

QUESTIONS PRESENTED

1. May the Secretary of the Interior, having pro-

vided by published regulation that only ‘‘aggrieved’’

parties may appeal a determination of village eligi-

bility made after notice and opportunity for hearing,

nonetheless consider an appeal by parties not ‘‘ag-

grieved’’ by such a determination? *

2. Does a district court, having found that admin-

istrative proceedings have (a) violated plaintiffs’

rights to due process and (b) been tainted by Con-

gressional intrusion into the administrative process,

exceed the bounds of its discretion in fashioning a

remedy by reinstating the last untainted determina-

tion where Congress has required that the matter be-

fore the ageney be resolved rapidly and with cer-

tainty?

3. Having once determined Native residence in the

course of enrollment, pursuant to the Alaska Native

‘The villages involved in this question are Anton Larsen Bay,

Bells Flats, Solomon and Alexander Creek,

———

ct Ste ee

Claims Settlement Act, may the Secretary of Interior

re-determine Native residence for village eligibility

purposes after the time for determination of residence

has expired ?*

4. Upon appellate review of cases consolidated for

hearing on cross-motions for summary judgment in-

volving only questions of law common to two or more

plaintiff villages, may a court of appeals remand to

the Secretary of the Interior one of the cases prior to

the determination by the district court of a dispositive

issue of law in that case involving but a single village

and therefore neither decided by the district court nor

considered by the court of appeals.’

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

The relevant provisions of the Alaska Native Claims

Settlement Act, 43 U.S.C. § 1601 et seq. are set forth

in the Appendix hereto as Appendix A.

Title 5, United States Code, section 706, provides:

‘‘To the extent necessary to decision and when

presented, the reviewing court shall decide all rele-

vant questions of law, interpret constitutional and

statutory provisions, and determine the meaning

i applicability of the terms of an agency ac-

ion... .

The provisions of 43 C.F.R. § 2651 (1973) are set

forth in the Appendix-hereto as Appendix B.

* This question does not involve the Village of Salamatof.

* This question involves only the Village of Salamatof.

STATEMENT OF THE CASE

This action, filed by eleven plaintiffs * invoking the

jurisdiction of the United States District Court for the

District of Columbia pursuant to 28 U.S.C. §§ 1331,

1361, 1362, 2201 and 2202, challenged decisions of the

Secretary of the Interior which found each of the vil-

lages ineligible for land and money under the Alaska

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

§ 1601, et seq.

ANCSA sought to accomplish a fair, rapid settle-

ment of all aboriginal land claims by Natives and

Native groups of Alaska without litigation. 43 U.S.C.

) 1601." Under the Act, 40 million acres of land and

#£962,500,000 were to be disbursed to qualified regional

and village corporations representing Native ‘‘resi-

dents.’’? 43 U.S.C. §§ 1605, 1611, 1613, 1615.° In ex-

change, all aboriginal titles of the Alaska Natives and

‘ Individual actions were brought by Koniag, Ine. and the Vil-

lage of Uyak (Civil Action No 74-1061), Salamatof Village Asso-

ciation and Cook Inlet Region, Ine. (Civil Action No. 74-1134),

the Village of Uganik, and Koniag, Ine. (Civil Action No. 74-1790),

the Village of Litnik and Koniag, Ine. (Civil Action No. 74-1792),

the Village of Bells Flats and Konaig, Ine. (Civil Action No. 74-

1793), the Village of Avakulik and Koniag, Ine. (Civil Action No.

74-1794), the Village of Port William and Koniag, Ine. (Civil Ac-

tion No. 74-1795), the Village of Solomon and Bering Straits Na-

tive Corporation (Civil Action No, 75-452), Sanak Corporation

and Aleut Corporation (Civil Action No, 75-485), the Village of

Alexander Creek and Cook Inlet Region, Ine. (Civil Action No.

75-1097). The cases were consolidated for purposes of summary

judgment. Parties below not petitioners herein are Aleut Corpora-

tion and Sanak Corporation (Pauloff Harbor, in which the protest

was Withdrawn after the district court decision).

® See generally 8S. Rep. No. 92-581, 92d Cong., Ist Sess. (1971).

*Criteria for village qualification are set forth at 43 U.S.C.

§ 1610(b) (2), (3). Regional qualifications are not at issue.

Oe ee ee ee eee

claims based threon were extinguished, 43 U.S.C.

§ 1603(b), (¢). Thus, unless a Native corporation es-

tablishes its entitlement under ANCSA, it receives

nothing, although the land claims of its members are

nevertheless extinguished. (A. 71).

The Secretary of the Interior was given the respon-

sibility to administer the legislation and, in so doing,

to determine each Native’s place of residence, 43

U.S.C. § 1604(b), and the eligibility of each Native

village. 43 U.S.C. § 1610(b) (2), (3).

Under ANCSA, a Native’s residence determines:

the Native’s corporation membership, 43 U.S.C.

§§ 1606(g¢), 1607(a), 1613 (h)(2), (3); the allocation

of land among Native corporations, 43 U.S.C. §§ 1611

(a), (b), (¢); the distribution of the $962,500,000

Alaska Native Fund among regional corporations, vil-

lage corporations and non-village stockholders of re-

gional corporations, 43 U.S.C. §§ 1605(¢), 1606(j) and

(m); the sharing among regional corporations of 70%

of each regional corporation’s revenues from timber

resources and subsurface estate, 4 3U.8.C. § 1606(i).

And it determines whether a given locality has the

Native residents required for ‘‘village’’ status. 43

U.S.C. §§ 1602(e), 1602(e), 1610(b) (2) and (3).

Section 3(c) of the Act, 43 U.S.C. § 1602(c), defines

a ‘Native village’’ as follows:

(ec) ‘‘Native village’’ means any tribe, band,

clan, group, village, community, or association in

Alaska listed in sections [11 and 16] of this [ Act],

or which meets the requirements of this [ Act], 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), list 215 villages (the so-called Listed

Villages) that were presumed to be eligible to receive

benefits. The Secretary was directed by section 11(b)

(2), 43 U.S.C. § 1610(b) (2), to review the Listed Vil-

lages within two and one-half years of ANCSA’s pas-

sage (1e., by December 19, 1974). A «isted Village

would be ineligible if the Secretary determined 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 find-

ings of fact in each instance; or,

(B) the village is of a modern and urban char-

acter, and the majority of the residents are non-

Native.

43 U.S.C. § 1610(b) (2).

Other villages, the so-called ‘‘Unlisted Villages”’

could be found eligible:

(3) Native villages not listed in subsection (b)

(1) hereof shall be eligible for land and benefits

under this [Act] and lands shall be withdrawn

pursuant to this section if the Secretary within

two and one-half years from [the date of enact-

ment of this Act], determines that—

(A) twenty-five or more Natives were resi-

dents of an established village on the 1970

census enumeration date as shown by the cen-

sus or other evidence satisfactory to the Sec-

retary, who shall make findings of fact in

each instance; and

(B) the village is not of a modern and ur-

ban character, and a majority of the residents

are Natives.

43 U.S.C. § 1610(b) (3).

ee ot ee Dee weil.

Of the village petitioners here, Uyak and Salamatof

are Listed Villages. Each of the others is an Unlisted

Village.

Before making the determinations required by sec-

tion 11 of the Act, the Secretary adopted regulations

to govern the village eligibility proceedings. 43 C.F.R.

Part 2650, et seq., adopted May 30, 1973, effective July

2, 1973, 38 Fed. Reg. 14218. (A. 74). These regu-

tions required the Juneau Area Office of the Bureau

of Indian Affairs to review the Listed Villages and

applications of Unlisted Villages, and make initial de-

terminations thereon not later than December 19, 1973.

43 C.F.R. §§ 2651.2(a)(1), (2), (6), (8). Proposed

decisions of the BIA, which were required to be pub-

lished, became final within 30 days of their date of

publication unless protested by ‘‘any interested party.”’

43 C.F.R. §§ 2651.2(a)(3), (9). The Area Director

of BIA was required to examine and evaluate any

such protest and, within thirty days, render a final

decision. 43 C.F.R. §§ 2651.2(a) (4), (10). The final de-

cision of the Area Director or a protest could be ap-

pealed by an ‘‘aggrieved party’’ by filing a notice with

the Ad Hoe Board.’ 48 C.F.R. § 2651.2(a)(5)." The

Secretary reserved to himself the ultimate decision in

each ease. 43 C.F.R. § 2651.2(a) (5).

Kach of the original eleven plaintiff villages was

initially found eligible by the Area Director. (A. 77).

Protests were filed, inter alia, by the U.S. Fish and

* Later called the Alaska Native Claims Appeal Board (ANCAB).

* If an appeal was taken, the case was assigned to an adminis-

trative law judge. After an initial de novo hearing, subsequent

proceedings were held in camera, shielded from the knowledge and

participation of plaintiffs. (A. 76, 77).

Wildiife Service,’ the U.S. Forest Service,”* or the

State of Alaska." After considering the protests, the

Area Director made and published final decisions of

eligibility. (A. 77). Claiming to be ‘‘aggrieved,’’ ap-

peals were taken by these protestants to ANCAB,”

By in camera decisions, unknown and unavailable to

petitioners until made public following approval

months later by the Secretary of the Interior, it was

finally determined that the villages were not eligible.

(A. 77).

rior to the institution of these proceedings and

just before the deadline established in section 5 of the

Act, 43 U.S.C. § 1604, the Secretary certified the Roll

of Alaska Natives. This Roll shows the residence of

each Native as required by section 5."* Notwithstand-

U.S. Fish and Wildlife Service filed protests against Uyak,

Uganik, Anton Larsen Bay, Bells Flats, Ayakulik, and Salamatof.

'° U.S. Forest Service filed protests against Litnik, Anton Larsen

Bay, and Port William.

'''The State of Alaska filed protests against Litnik, Anton Lar-

sen Bay, Bells Flats, Port William, Alexander Creek and Solomon.

The State’s protests against Litnik, Bells Flats and Port William

were dropped.

1 But see n. 17 infra, Certain other protestants also appealed

one or more of the decisions. Those appeals were either withdrawn

or dismissed.

The section provides so far as here material :

‘‘(a) The Secretary shall prepare within two years from

the date of enactment of this Act a roll of all Natives who

were born on or before, and who are living on, the date of

enactment of this Act. Any decision of the Secretary regard-

ing eligibility for enrollment shall be final.

‘‘(b) The roll prepared by the Secretary shall show for

each Native, among other things, the region and the village

or other place in which he resided on the date of the 1970

a EC AO

On ce 6

Oe eee

De ar RS

ee ee *

ing this determination, the Secretary permitted new

inquiries into residence in the course of the village

eligibility proceedings. (A. 89).

While these village eligibility cases were before the

Secretary, the Chairman of the House Subcommittee

on Fisheries and Wildlife Conservation and The En-

vironment of the House Committee on Merchant Ma-

rine and Fisheries, Hon. John D. Dingell, held hear-

ings, relating to the administration of ANCSA." Of

these hearings the district court found that:

The Committee, through its chairman and staff

members, probed deeply into details of contested

cases then under consideration, indicating that

there was ‘‘more than meets the eye.’’ The entire

rule-making process was reexamined, travel

vouchers and other information were sought to

probe the adequacy of the investigations made, all

papers in the pending proceedings were demand-

ed, the accuracy of data and procedures followed

was questioned, and constantly the Committee in-

terjected itself into aspects of the decision mak-

ing process ... It was following this experience

that settlements arranged with two of the plain-

tiffs Anton Larsen Bay and Bells Flats, were

abandoned by the Department of the Interior be-

cause of the hearings. (A. 85, 86).

census enumeration, and he shall be enrolled according to such

residence... .’’

43 U.S.C. § 1604(a).

The determination of residence is critical to the eligibility of a

village, since eligibility requires at least twenty-five residents.

‘Alaska Native Claims, Hearings Before the Subeomm. on

Fisheries and Wildlife Conservation and the Environment of the

Comm. on Merchant Marine and Fisheries, 93d Cong., 2nd Sess.

(1975).

As a result, the district court ruled that these hear-

ings constituted ‘‘an impermissible Congressional in-

terference with the administrative process’’ in viola-

tion of due process.” (A, 86). The district court also

ruled that the procedures involved in the three-tiered

administrative adjudication violated the Natives’

rights to due process’ (A. 84), and that certain ap-

pellants in the administrative proceedings before

ANCAB had neither alleged nor proven their stand-

ing to maintain administrative appeals under the

‘‘narty aggrieved’’ criteria of the Secretary’s regula-

tions.'’ (A. 82). Villages affected by the district court’s

holding on lack of standing were ordered reinstated

on that ground. As to all villages, because of the

Congressional mandate to resolve the settlement rap-

idly and with certainty, 43 U.S.C. § 1601(b), the court

directed that the last untainted decision—that of the

Area Director of the Juneau Area Office, Bureau of

the Indian Affairs—be reinstated. (A. 87, 91).

The United States Court of Appeals for the District

of Columbia affirmed the district court’s findings re-

garding the violations of due process, but reversed on

'° The correctness of this determination was not questioned by

the court of appeals which disagreed with the district court only

as to whether the taint of such interference continued, (A. 55).

' All villages were ordered reinstated by the district court on

the basis of Congressional interference and lack of due process.

'' Villages reinstated by the district court on the basis of pro-

testants’ lack of standing were Anton Larson Bay, Bells Flats,

Alexander Creek and Solomon. In the eases of Anton Larsen Bay

and Bells Flats, no lands within the jurisdiction of an administra-

tive appellant were selected. (A. 81). In the eases of Solomon and

Alexander Creek, the State of Alaska, the only administrative ap-

pellant, had neither selected nor indicated an intent to select land

that would be conveyed to either village if eligible. (A. 81, 82).

the question of standing and the reinstatement remedy.

(A. 55, 56). The court did not consider matters ex-

pressly reserved from consideration of the cross-

motions for summary judgment on the consolidated

issues.

Both the district court and the court of appeals con-

cluded that the Secretary had authority to redetermine

residence for purposes of village eligibility. (A. 56, 89).

In this petition for certiorari, petitioners seek re-

view of the appellate court’s decision with respect to

(1) standing, (2) the remedy fashioned by the district

court, (3) the authority of the Secretary to redeter-

mine residence for purposes of village eligibility, and

(4) the propriety of the appellate court’s remand or-

der in the case of Salamatof Village where dispositive

issues had not yet been reached by the district court.

REASONS FOR GRANTING THE WRIT

On December 18, 1971 the Congress of the United

States honored a commitment, made nearly a century

before, to provide legislation to enable Alaska Natives

to receive title to lands of this vast territory they had

long occupied.” Through the Alaska Native Claims

Settlement Act (ANCSA), 43 U.S.C. § 1601 et seq.,

Congress finally settled the century-old claims of

Alaska Natives by providing land and cash to Native

Alaskans, in the main through the village and regional

corporations established pursuant to the Act. At the

same time, however, Congress extinguished all abori-

ginal titles and claims and, in sharp contrast to the

immediate extinguishment of all claims, established

See Act of May 17, 1884, 23 Stat. 24. See also, Treaty of

March 30, 1867, 15 Stat. 539; Act of March 3, 1891, §§ 12 and 14,

26 Stat. 1095, 1100; Act of May 14, 1898, § 10, 30 Stat. 409, 413;

Act of June 6, 1970, § 27, 31 Stat. 321, 330; Act of May 17, 1906,

34 Stat. 197; Act of May 25, 1926, 44 Stat. 629.

strict procedures by which Alaska Natives could realize

their heritage.

The Secretary of the Interior’s determination of

Native residence and village eligibility is at the core

of Congress’ purpose to accomplish, through ANCSA,

a “fair and just’? settlement of Native claims ‘‘rap-

idly and with certainty.’’ 43 U.S.C. § 1601(b). For un-

less entitlements are established in compliance with

the Act’s strict procedures, Natives as members of

Native village corporations receive nothing for the ex-

tinguishment of their claims.

Through these provisions of ANCSA, it is in the

power of the Secretary not only to determine whether

Native entities obtain the benefits to which the Natives’

tradition entitles them but, in so doing, to determine

how and to whom forty million acres of public lands

in the State of Alaska and almost a billion dollars in

cash are to be distributed.

Thus, the Secretary’s determinations regarding

residence and village eligibility are of tremendous im-

portance to the future development of the State of

Alaska. And these decisions, while made pursuant to

ANCSA, impact as well upon the administration of

the Statehood Act,” the utilization of public lands, and

upon people to whom the United States owes a special

duty of trust. See Choate v. Trapp, 224 U.S. 665

(1912).

"The decision of the Secretary impacts upon the administra-

tion of the Alaska Statehood Act, 48 U.S.C. Prec. § 21, 72 Stat.

339, as amended, because substantial acreages of lands conveyed

to Native entities under ANCSA are withdrawn from selection by

(and in some cases taken from selections of) the State of Alaska.

Fe ee ee eS ee

>. late bie

A Writ of Certiorari has frequently been found ap-

propriate in cases involving such significant issues.

See, e.g., United States v. Ruzicka, 329 U.S, 287 (1946)

(significance of the issue in the administration of the

statute) ; United States v. Coleman, 390 U.S. 599, 601

(1968) (importance of the decision to the utilization

of public lands). See also, Alaska vy. American Can

Co., 358 U.S. 224, 225 (1959) (certiorari granted ‘in

view of the fiscal importance of the question to Alaska

.. 2°); United States v. Zazove, 334 U.S. 602, 613-14,

n. 17 (1948) (statutory construction issue involved

billions of dollars).

Because of the importance of the responsibilities of

the Secretary which flow from ANCSA and its ad-

ministration, it is critical to the proper administration

of the Act that the Secretary act lawfully and that

any departure from lawful conduct be remedied in

light of the policies of the Act and in such a way as to

protect against the possibility of repetition.

Both the district court and the court of appeals

concluded that the actions of the Secretary, with re-

spect to these villages, was unlawful.” However, the

courts differed significantly in the relief to be ac-

corded, The court of appeals directed that the ques-

tion of the eligibility of these villages for benefits un-

der the Act be remanded to the Secretary. The district

court, however, had concluded that this traditional

remedy could not be applied for two independent rea-

“’ Both courts agreed that the secrecy imposed by the Secretary

upon the second and third tier of the administrative proceedings

violated due process and that these proceedings were impermis.

sibly influenced by the interference of a Congressional Committee

(A. 84, 86, 54, 55).

sons. One reason was because the taint of improper

Congressional interference continued to linger. The

second reason was beeause the delay incumbent in a

remand would frustrate the purposes of the Act. The

district court carefully balanced the rights and inter-

ests of the parties before it, concluding:

There is nothing before the Court to indicate

that the effect of the Dingell hearings has been

removed, and they did not occur so long ago that

their influence ean be presumed to have been dis-

sipated. For this Court to allow further adininis-

trative proceedings to be held when the agency

has failed to demonstrate the absence of any

lingering effect would be to countenance a contin-

uing violation of due process. Apart from this,

Congress has been insistent, and properly so, upon

a prompt resolution and settlement of the Natives’

claims. Key deadlines still must be met by De-

cember of this year and the general purpose of

the statute would be thwarted by the delays in-

herent in a remand,....

Koniag, Inc. v. Kleppe, 405 F. Supp. 1360 at 1372.

In contrast, the remand directed by the court of

appeals creates the kind of delay Congress sought to

avoid. The sole basis for the appellate court’s conclu-

sion was its own inference that the intervention of

time had purged the possibility of interference. This

not only conflicts with the facts,” it constitutes an un-

** At the time this case was before the court of appeals, many

of the principal participants were still serving in the Department

of Interior and in ANCAB. Moreover, the ANCSA land selection

regulations had been amended, 41 Fed. Reg. 14734, et seq. (April

7, 1976), imposing more restrictive tests, over the vigorous objec-

tion of the Alaska Natives, upon the ‘‘group’’ eligibility determi-

nation than upon villages. Brief for Appellees at 48-52. ANCSA

§ 3, 43 U.S.C. § 1602(d), defines a ‘‘group’’ similarly to a ‘‘vil-

ee re tb eee ee eee

warranted intrusion into the discretion of the district

court. See Lemon vy. Kurtzman, 411 U.S. 192 (1973) ;

United States v. Singer Mfg. Co., 374 U.S. 174 (1963)

(in fashioning constitutional remedy district court

has wide diseretion that will be disturbed on appeal

of federal rules of procedure).

Moreover, the court of appeals ignored the second

independent ground upon which the district court re-

instated the BIA’s decisions of eligibility—the Con-

gressional command for prompt action.

Certiorari should be granted for these reasons

alone. This Court has both the responsibility to mark

the appropriate limits of the investigating power of

Congressional committees and to assure the proper

functioning of the federal judiciary. Both are appro-

priate grounds for the issuance of a writ of certiorari.

See, e.g., Watkins v. United States, 354 U.S. 178, 187

(1957); United States v. Rumely, 345 U.S. 41, 42

(1953), (court circumscribed committee inquiries) ;

Hickman v. Taylor, 329 U.S, 495 (1947), (construction

of federal rules of procedure).

Further, in promulgating the village eligibility regu-

lations, the Secretary chose to apply the term ‘“ag-

grieved party’’ to those persons from whom a petition

would lie, It is beyond cavil that the term ‘‘aggrieved

party’’ is a term of art with a precise, technical mean-

ing. Sce, ¢e.g., United States v. SCRAP, 412 U.S. 669

(1973) ; Sierra Club v. Morton, 405 U.S. 727 (1972) ;

lage’’ except for the requirement of 25 residents. The change in

the regulations prescribing more stringent criteria for ‘‘groups”’

may well preelude these village petitioners from now qualifying

for the lesser benefits accorded ‘‘groups’’ under ANCSA § 14(h)

(2), 43 U.S.C, § 1613(h) (2).

Association of Data Processing Service Organizations

vy. Camp, 397 U.S. 150 (1970), (all construing 5 U.S.C.

) 702). And, it must be presumed that the Secretary

acted from knowledge and not ignorance of the mean-

ing of these words,

Expressly refusing to apply the judicial concept of

standing, the court of appeals reversed the district

court’s holding that the administrative appellants

lacked standing to appeal to the Secretary from the

BIA’s favorable determinations of the eligibility of

Anton Larsen Bay, Bells Flats, Alexander Creek and

Solomon.

In the cases of Alexander Creek and Solomon, the

court of appeals described the interest of the State of

Alaska as ‘teonjectural at best’’. (A. 50). Sueh an in-

terest would not confer standing under this Court’s

decisions cited above.

In the cases of Anton Larsen Bay and Bells Flats,

the court of appeals relied on a ‘‘domino theory’? that

if these villages did not take land from the Wildlife

Refuge or National Forest other villages miaht select

more land therefrom, (A. 47, 48). But the testimony

cited by the ALJ upon which the Secretary and the

courts of appeals relied is on its face speculative. (A.

338-40, 341-43). The court of appeals allowed standing

on the basis of the “ingenious academic exercise in the

conceivable’? denouneed in SCRAP, 412 U.S. at 688.

It may well be that the court of appeals was correct,

as a general proposition, that administrative standing

and judicial standing are not interchangeable. But

see National Welfare Rights Organization v. Finch,

429 B.2d 725 (D.C. Cir. 1970); United Church of

Christ y. FCC, 359 F.2d 994 (D.C. Cir. 1966). But

- ate it no ates meal

ee a

that is hardly relevant where, as here, the Secretary

has, by his own regulations, bound himself to the judi-

cial standard. Having imposed by regulation the judi-

elal standing requirement, he cannot thereafter de-

prive that standard of vitality by a post hoe definition

which grants to the most speculative interest a roving

right to protest.

This is particularly so in a ease involving Native

rights. For this Court has consistently ruled that in

construing a statute intended to benefit Natives, ques-

tions should be resolved in favor of the Natives.

Choate v. Trapp, 224 U.S. 665 (1912).”

Accordingly, the decision of the court of appeals is

worthy of review because it is contrary in principle

to the precedents established by this Court and those

followed by other circuits with respect to the binding

effect of regulations as well as the benefit owing to

Natives as a result of the trust responsibility of the

United States.”

—— se

*" The principle adopted in Choate has been frequently followed.

F.g., MeClanahan vy. State Tax Commissioner, 411 U.S, 164 (1973) ;

Squire v. Capoeman, 351 U.S. 1 (1956); United States v. Santa

Fe Pacific R.R., 314 U.S, 339 (1941); Alaska Pacific Fisheries v.

United States, 248 U.S. 78 (1918).

*“"Eg., United States v. Nixon, 418 U.S, 683, 695-96 (1974);

Vitarelli v. Seaton, 359 U.S. 535 (1959) ; United States v. Leahey,

434 F.2d 7 (1st Cir. 1970); Archambault v. United States, 224

l.2d 925 (10th Cir, 1955) ; Willapoint Oysters, Ine. v. Ewing, 174

I’.2d 676 (9th Cir, 1949),

* f.g., Bryan v. Itasea County, 426 U.S. 373, 392 (1976) ; Rock-

bridge v. Lincoln, 449 F.2d 567 (9th Cir, 1971), and eases cited

in n.18, supra. Unlike Northern Cheyenne Tribe v, Hollowbreast,

425 U.S, 649, 655 n.7 (1976), this is not a dispute between two con-

tending groups of Natives. While eligibility of the petitioning vil-

lages would reduce the amount of land to be distributed as ‘‘second

round’’ selections under ANCSA section 12(b), 43 U.S.C, § 1611

As can be seen from the above, as weil as an ex-

amination of the statute itself, the provisions of

ANCSA are complex and interrelated. Just as land

conveyances under ANOSA turn upon the eligibility

of villages, the eligibility of villages turns upon the

Secretary’s determination of each Native’s place of

residence, Section 5(a), 43 U.S.C, § 1604(a), gives the

Secretary two years (i.e, to December 18, 1973) to

prepare a roll of all eligible Natives. That roll must

show the residence of each enrolled Native on the 1970

census enumeration date (April 1, 1970), ‘Sand [each

Native] shall be enrolled according to such residence.”

43 U.S.C. § 1604(b) (emphasis supplied),

Here, after having determined each Native’s resi-

dence for purposes of enrollment, the Secretary

granted himself the privilege in some instances of

redetermining that residence for purposes of village

eligibility. This is the only instance in which the

Secretary has departed from the use of enrollment

residence for other purposes of the Act, It results in

the anamolous situation of some Natives having two

‘residences’? yor purposes of ANCSA,

That a Native can have only one residence follows

from the time sequence for ANCSA’s implementa-

tion, First, by December 18, 1973 the Seeretary was

ae es ee ee ee <

(b), under which the difference between the total section 12(a),

43 U.S.C, §1611(a), land entitlements of eligible villages and

22,000,000 acres are to be allocated among eleven of the Alaska

Native regional corporations for reallocation to eligible village

corporations, no regional or village corporation protested the

eligibility of these villages in the administrative proceedings or

sought to intervene below, All regional corporations were given

express notice of the KILA's initial proposed decisions of eligibility.

43 C.F.R, §§ 2651,.2(a) (2), (8).

i hE ee a a es er eee oe -

—

to determine who was a Native and where that Native

resided, An additional six months (i.e., through June

18, 1974) is allowed for the determination of village

eligibility, 43 U.S.C. 99 1610(b)(2) and (3). Village

corporations (which, of course, had to be organized

in the meantime by the ‘residents’? of the villages)

are allowed an additional six months (or through

December 17, 1974) in whieh to make their land se-

lections, 43 U.S.C. § 1611(a)(1). Regional eorpora.

tion selections must be completed by no later than

one additional year (i.e, December 17, 1975). 48

U.S.C. § 1611(¢) (3), December 17, 1974 is also the

date upon which the withdrawals for Native selee-

tions lapse, except as to village, regional, or group

selections which are continued until the land is con-

veyed, 43 U.S.C, § 1621(h) (2), Such a sehedule could

not be met were residency open to continuing redeter-

mination,

Clearly, Congress could not have intended that the

same Native could have different residences on April

1, 1970 for different ANCSA purposes. Yet both the

distriet court and court of appeals approved exactly

such a result.

Because so much turns upon the Secretary’s deter-

minations with regard to residence, resolution of this

issue is also of vital importance to the administration

of ANOSA, This issue also presents to this Court sig-

nificant questions regarding the authority of the See-

retary to alter or amend the Native Roll in any way

to the prejudice of petitioners after the statutory dead-

line for certification of the Roll has passed, See Choc-

taw Nation v. United States, 100 F. Supp. 318 (Ct.

Ol, 1941), cert. denied, 343 U.S. 956 (1952). Cf. Unit-

ed States ex rel Lowe vy. Fisher, 223 U.S. 95, 106-107

(1912). On this issue there is an obvious conflict be-

tween the United States Court of Claims and the court

of appeals for the Distriet of Columbia.

As to petitioner Salamatof, the court of appeals ex-

ceeded its authority in a way not present in any of the

other cases. In so doing, it effectively denied to this

petitioner its right to full, proper and meaningful

judicial review,

As expressly noted in the district court opinion, (A.

70), the case as decided by the district court in cross

motions for summary judgment dealt only with a por-

tion of the administrative appeals, namely, those issues

common to two or more plaintiff villages, Lapressly

reserved were issues in any particular case not ‘*com-

mon’? to the others; and as to Salamatof, its unique

facts permit and indeed require full and final deter-

mination of its case by the district court, at this june-

ture, without further remand to the Seeretary’s ad-

ininistrative process. Salamatof’s attempt to revive

these **non-common”’ grounds in the district court, fol-

lowing the appellate court’s reversal of the reinstate-

ment remedy, was, however, seen by the lower court

as blocked by the appellate court’s mandate,

Thus Salamatof, which believes it can establish, on

the present record, its lawful entitlement to village

eligibility status, is relegated to yet another year or

move of further and pointless administrative proceed-

ings--in all predictability, only to reach the same pre-

determined end at the hands of the Secretary (a re-

affirmance of the previous finding of ineligibility) and

the consequent necessity of yet another judicial appeal.

}

;

ee a Ne eT mR eS Tee ene Te mT ee

The Administrative Procedure Act, 5 U.S.C. § 706,

compels a reversal of this bizarre result. That section

requires, in pertinent part, that: ‘‘To the extent neces-

sary to decision and when presented, the reviewing

court shall decide all relevant questions of law... .”’

(emphasis added), Where the reviewing authority of

a court is properly invoked by an aggrieved party, it

is the duty of the court to review the action of the

ageney, Dorsey Vv. Kingsland, 173 F.2d 405, 410 (D.C,

Cir), rev. on other grounds, 388 U.S, 818 (1949);

American Airlines, Ine. v. CLA.B., 231 F.2d 483, 486

(1956),

Salamatof has properly invoked the jurisdiction of

the distriet court and is entitled to an adjudication of

“all’’ the relevant issues raised before that court.

The unexplained refusal of the court of appeals to

acknowledge and permit this result was a fundamental

denial of Salamatof’s statutory and constitutional due

process rights, and so wholly arbitrary and in excess

of the court of appeals’ lawful powers as to require

correction by this Court.

In summation, each of the four questions presented

for review present significant issues of national im-

portance with respect to the administration of

ANCSA, the utilization of publie lands, the authority

of the Secretary, and the fulfillment of the fiduciary

obligations of the United States, This case also raises

questions regarding the proper scope of Congressional]

oversight of administrative functions and the role of

appellate courts in supervising matters within the dis-

cretion of federal distriet courts.

In passing upon such questions below, the court of

appeals, in particular, departed from well established

9»)

principles of both this Court and the courts of appeals

for other circuits, as well as the United States Court

of Claims.

CONCLUSION

For these reasons, petitioners respectfully request

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the District

of Columbia.

Respectfully submitted,

KDWARD WEINBERG

Frepertck L. Miner, JR.

1775 Pennsylvania Ave., N.W.

Washington, D. C. 20006

(202) 467-6370

F. Concer FAWCETT

1 Maritime Plaza

San Francisco, California 94111

(415) 986-2171

Attorneys for Petitioners

Of Counsel:

Puitie L. CHABor, JR.

DUNCAN, Brown, WEINBERG & PALMER, PC

1775 Pennsylvania Ave., N.W.

Washington, D.C. 20006

APPENDIX

APPENDIX A

ALASKA NATIVE CLAIMS SETTLEMENT ACT

PUBLIC LAW 92-203; 85 STAT. 688

[H. R. 10367]

An Act to provide for the settlement of certain land claims

of Alaska Natives, and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress

assembled, That:

This Act may be cited as the ‘‘Alaska Native Claims

Settlement Act”.

DECLARATION OF POLICY

43 U.S.C. § 1601

Sec. 2. Congress finds and declares that—

(a) there is an immediate need for a fair and just settle-

ment of all claims by Natives and Native groups of Alaska,

based on aboriginal land claims;

(b) the settlement should be accomplished rapidly, with

certainty, in conformity with the real economic and social

needs of Natives, without litigation, with maximum par-

ticipation by Natives in decisions affecting their rights and

property, without establishing any permanent racially de-

fined institutions, rights, privileges, or obligations, with-

out creating a reservation system or lengthy wardship or

trusteeship, and without adding to the categories of prop-

erty and institutions enjoying special tax privileges or

to the legislation establishing special relationships between

the United States Government and the State of Alaska;

any right, privilege, or obligation of Natives as citizens

of the United States or of Alaska, or relieve, replace, or

diminish any obligation of the United States or of the

State of Alaska to protect and promote the rights or wel-

fare of Natives as citizens of the United States or of

Alaska; the Secretary is authorized and directed, together

with other appropriate agencies of the United States Gov-

ernment, to make a study of all Federal programs pri-

marily designed to benefit Native people and to report back

to the Congress with his recommendations for the future

management and operation of these programs within three

years of the date of enactment of this Act;

(d) no provision of this Act shall constitute a precedent

for reopening, renegotiating, or legislating upon any past

settlement involving land claims or other matters with any

Native organizations, or any tribe, band, or identifiable

group of American Indians;

(e) no provision of this Act shall effect a change or

changes in the petroleum reserve policy reflected in sec-

tions 7421 through 7438 of title 10 of the United States

Code except as specifically provided in this Act;

(f) no provision of this Act shall be construed to consti-

tute a jurisdictional act, to confer jurisdiction to sue, nor

to grant implied consent to Natives to sue the United States

or any of its officers with respect to the claims extinguished

by the operation of this Act; and

(g) no provision of this Act shall be construed to termi-

nate or otherwise curtail the activities of the Economic

Development Administration or other Federal agencies

conducting loan or loan and grant programs in Alaska. For

this purpose only, the terms ‘‘Indian reservation’’ and

‘‘trust or restricted Indian-owned land areas’’ in Public

Law 89-136, the Public Works and Economic Development

Act of 1965, as amended, shall be interpreted to include

lands granted to Natives under this Act as long as such

lands remain in the ownership of the Native villages or the

Regional Corporations.

ect S Br Pet han ee

Bfest Ontos ot Dest cc des

DEFINITIONS

43 U.S.C. § 1602

Sec. 3. For the purposes of this Act, the term—

(a) ‘‘Secretary” means the Secretary of the Interior;

(b) ‘*Native’’ means a citizen of the United States who

is a person of one-fourth degree or more Alaska Indian

(including Tsimshian Indians not enrolled in the Metlaktla

Indian Community) Eskimo, or Aleut blood, or combina-

tion thereof. The term includes any Native as so defined

either or both of whose adoptive parents are not Natives.

It also includes, in the absence of proof of a minimum blood

quantum, any citizen of the United States who is regarded

as an Alaska Native by the Native village or Native group

of which he claims to be a member and whose father or

mother is (or, if deceased, was) regarded as Native by any

village or group. Any decision of the Secretary regarding

eligibility for enrollment shall be final;

village, community, or association in Alaska listed in sec-

tions 11 and 16 of this Act, or which meets the requirements

of this Act, 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;

(d) ‘‘Native group” means any tribe, band, clan, village,

community, or village association of Natives in Alaska

composed of less than twenty-five Natives, who comprise a

majority of the residents of the locality ;

(e) ‘‘Public lands’’ means all Federal lands and inter-

ests therein located in Alaska except: (1) the smallest prac-

ticable tract, as determined by the Secretary, enclosing

land actually used in connection with the administration of

any Federal installation, and (2) land selections of the

State of Alaska which have been patented or tentatively

approved under section 6(g) of the Alaska Statehood Act,

as amended (72 Stat. 341, 77 Stat. 223), or identified for

selection by the State prior to January 17, 1969;

(f) ‘‘State’’ means the State of Alaska;

(gz) ‘*Regional Corporation” means an Alaska Native

Regional Corporation established under the laws of the

State of Alaska in accordance with the provisions of this

Act;

(h) ‘*Person’’? means any individual, firm, corporation,

association, or partnership;

(i) ‘*Municipal Corporation’’ means any general unit of

municipal government under the laws of the State of

Alaska ;

(j) ‘‘ Village Corporation” means an Alaska Native Vil-

lage Corporation organized under the laws of the State

of Alaska as a business for profit or nonprofit corporation

to hold, invest, manage and/or distribute lands, property,

funds, and other rights and assets for and on behalf of a

Native village in accordance with the terms of this Act.

(k) ‘*Fund’’ means the Alaska Native Fund in the Treas-

ury of the United States established by section 6; and

(1) ‘*Planning Commission’’ means the Joint Federal-

State Land Use Planning Commission established by sec-

tion 17.

DECLARATION OF SETTLEMENT

43 U.S.C. § 1603

Sec. 4, (a) All prior conveyances of public land and water

areas in Alaska, or any interest therein, pursuant to Fed-

eral law, and all tentative approvals pursuant to section

6(g) of the Alaska Statehood Act, shall be regarded as an

extinguishment of the aboriginal title thereto, if any.

— ee

Daw tei ee

So. est ee Es Be eb 8 a BO ee te eee

“a

jue

(b) All aboriginal titles, if any, and claims of aboriginal

title in Alaska based on use and occupancy, 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.

all other persons that are based on claims of aboriginal

right, title, use, or occupancy of land or water areas in

Alaska, or that are based on any statute or treaty of the

United States relating to Native use and occupancy, or

that are based on the laws of any other nation, including

any such claims that are pending before any Federal or

state court or the Indian Claims Commission, are hereby

extinguished.

ENROLLMENT

43 U.S.C. § 1604

Sec. 5. (a) The Secretary shall prepare within two years

from the date of enactment of this Act a roll of all Natives

who were born on or before, and who are living on, the

date of enactment of this Act. Any decision of the Secre-

tary regarding eligibility for enrollment shall be final.

(b) The roll prepared by the Secretary shall show for

each Native, among other things, the region and the village

or other place in which he resided on the date of the 1970

census enumeration, and he shall be enrolled according to

such residence. Except as »rovided in subsection (c), a

Native eligible for enrollment who is not, when the roll is

prepared, a permanent resident of one of the twelve re-

gions established pursuant to subsection 7(a) shall be en-

rolled by the Secretary in one of the twelve regions, giving

priority in the following order to—

(1) the region where the Native resided on the 1970

census date if he had resided there without substantial

interruption for two or more years;

(2) the region where the Native previously resided

for an aggregate of ten years or more;

(3) the region where the Native was born; and

(4) the region from which an ancestor of the Native

came:

The Secretary may enroll a Native in a different region

when necessary to avoid enrolling members of the same

family in different regions or otherwise avoid hardships.

of age or older and is not a permanent resident of one of

the twelve regions may, on the date he files an application

for enrollment, elect to be enrolled in a thirteenth region

for Natives who are non-residents of Alaska, if such region

is established pursuant to subsection 7(c). If such region

is not established, he shall be enrolled as provided in sub-

section (b). His election shall apply to all dependent mem-

bers of his household who are less than eighteen years of

age, but shall not affect the enrollment of anyone else.

ALASKA NATIVE FUND

43 U.S.C. § 1605

Sec. 6. (a) There is hereby established in the United

States Treasury an Alaska Native Fund into which the

following moneys shall be deposited:

(1) $462,500,000 from the general fund of the Treas-

ury, which are authorized to be appropriated according

to the following schedule:

(A) $12,500,000 during the fiscal year in which

this Act becomes effective ;

(B) $50,000,000 during the second fiscal year;

and fifth fiscal years;

A ee

Oe SO at A EF ee Cee 2

<es S wis Ot el SS ee eS

= ——_—— - _— ois. a . sees

(D) $40,000,000 during the sixth fiscal year; and

(E) $30,000,000 during each of the next five fis-

cal years,

(2) Four percent interest per annum, which is au-

thorized to be appropriated, on any amount authorized

to be appropriated by this paragraph that is not ap-

propriated within six months after the fiscal year in

which payable.

(3) $500,000,000 pursuant to the revenue sharing

provisions of section 9.

(b) None of the funds paid or distributed pursuant to

this section to any of the Regional and Village Corpora-

tions established pursuant to this Act shall be expended,

donated, or otherwise used for the purpose of carrying on

propaganda, or intervening in (including the publishing

and distributing of statements) any political campaign on

behalf of any candidate for public office. Any person who

willfully violates the foregoing provision shall be guilty

of a misdemeanor and, upon conviction thereof, shall be

fined not more than $1,000 or imprisoned not more than

twelve months, or both.

section 5, all money in the Fund, except money reserved

as provided in section 20 for the payment of attorney and

other fees, shall be distributed at the end of each three

months of the fiscal year among the Regional Corporations

organized pursuant to section 7 on the basis of the relative

numbers of Natives enrolled in each region. The share of

a Regional Corporation that has not been organized shall

be retained in the Fund until the Regional Corporation is

organized.

REGIONAL CORPORATIONS

43 U.S.C, § 1606

Sec. 7. (a) For purposes of this Act, the State of Alaska

shall be divided by the Secretary within one year after the

date of enactment at this Act into twelve geographic re-

gions, with each region composed as far as practicable of

Natives having a common heritage and sharing common

interests. In the absence of good cause shown to the con-

trary, such regions shall approximate the areas covered by

the operations of the following existing Native associa-

tions:

(1) Aretie Slope Native Association (Barrow, Point

Hope) ;

(2) Bering Straits Association (Seward Peninsula,

Unalakleet, Saint Lawrence Island) ;

(3) Northwest Alaska Native Association (Kotze-

hue) ;

(4) Association of Village Council Presidents

(southwest coast, all villages in the Bethel area, in-

cluding all villages on the Lower Yukon River and the

Lower Kuskokwim River) ;

(5) Tanana Chiefs’ Conference (Koyukuk, Middle

and Upper Yukon Rivers, Upper Kuskokwim, Tanana

River);

(6) Cook Inlet Association (Kenai, Tyonek, Ek-

lutna, Iliamna) ;

(7) Bristol Bay Native Association (Dillingham,

Upper Alaska Peninsula) ;

(8) Aleut League (Aleutian Islands, Pribilof Islands

and that part of the Alaska Peninsula which is in the

Aleut League) ;

(9) Chugach Native Association (Cordova Tatitlek,

Port Graham, English Bay, Valdez, and Seward) ;

(10) Tlingit-Haida Central Council (southeastern

Alaska, including Metlakatla) ;

(11) Kodiak Area Nativ. Association (all villages

on and around Kodiak Island); and

_ (12) Copper River Native Association (Copper

Center, Glennallen, Chitina, Mentasta).

Any dispute over the boundaries of a region or regions

shall be resolved by a board of arbitrators consisting of

one person selected by each of the Native associations in-

volved, and an additional one or two persons, whichever is

needed to make an odd number of arbitrators, such addi-

tional person or persons to be selected by the arbitrators

selected by the Native associations involved.

(b) The Secretary may, on request made within one year

of the date of enactment of this Act, by representative and

responsible leaders of the Native associations listed in

subsection (a), merge two or more of the twelve regions:

Provided, That the twelve regions may not be reduced to

less than seven, and there may be no fewer than seven Re-

gional Corporations.

of age or older who are not permanent residents of Alaska

clect, pursuant to subsection 5(¢), to be enrolled in a thir-

teenth region for Natives who are non-residents of Alaska,

the Secretary shall establish such a region for the benefit

of the Natives who elected to be enrolled therein, and they

may establish a Regional Corporation pursuant to this Act.

(d) Five ineorporators within each region, named by

the Native association in the region, shall incorporate un-

der the laws of Alaska a Regional Corporation to conduct

business for profit, which shall be eligible for the benefits

10a

ef this Aet so long as it is organized and functions in ac-

cordance with this Aet. The articles of incorporation shall

include provisions necessary to carry out the terms of this

Act.

(e) The original articles of incorporation and bylaws

shall be approved by the Secretary before they are filed,

and they shall be submitted for approval within eighteen

months after the date of enactment of this Act. The articles

of incorporation may not be amended during the Regional

Corporation’s first five years without the approval of the

Secretary. The Seeretary may withhold approval under

this section if in his judgment inequities among Native in-

dividuals or groups of Native individuals would be created.

(f) The management of the Regional Corporation shall

be vested in a board of directors, all of whom, with the ex-

ception of the initial board, shall be stockholders over the

age of eighteen. The number, terms, and method of election

of members of the board of directors shall be fixed in the

articles of incorporation or bylaws of the Regional Cor-

poration,

(g) The Regional Corporation shall be authorized to is-

sue such number of shares of common stock, divided into

such classes of shares as may be specified in the articles

of incorporation to reflect the provisions of this Act, as

may be needed to issue one hundred shares of stock to each

Native enrolled in the region pursuant to section 5,

(h) (1) Except as otherwise provided in paragraph (2)

of this subsection, stock issued pursuant to subsection (g)

shall carry a right to vote in elections for the board of

directors and on such other questions as properly may be

presented to stockholders, shall permit the holder to re-

ceive dividends or other distributions from the Regional

Corporation, and shall vest in the holder all rights of a

stockholder in a business corporation organized under the

laws of the State of Alaska, except that for a period of

Ce nt Ce

nd te

lla

twenty years after the date of enactment of this Act the

stock, inchoate rights thereto, and any dividends paid or

distributions made with respect thereto may not be sold,

pledged, subjected to a lien or judgment execution, as-

signed in present or future, or otherwise alienated: Pro-

vided, That such limitation shall not apply to transfers of

stock pursuant to a court decree of separation, divorce or

child support.

(2) Upon the death of any stockholder, ownership of

such stock shall be transferred in accordance with his last

will and testament or under the applicable laws of inte-

stacy, except that (A) during the twenty-year period after

the date of enactment of this Act such stock shall carry

voting rights only if the holder thereof throngh inheritance

also is a Native, and (B), in the event the deceased stock-

holder fails to dispose of his stock by will and has no heirs

under the applicable laws of intestacy, such stock shall

escheat to the Regional Corporation.

(3) On January 1 of the twenty-first year after the year

in which this Act is enacted, all stock previously issued

shall be deemed to be canceled, and shares of stock of the

appropriate class shall be issued without restrictions re-

quired by this Act to each stockholder share for share.

(i) Seventy per centum of all revenues received by each

Regional Corporation from the timber resources and sub-

surface estate patented to it pursuant to this Act shall be

divided annually by the Regional Corporation among all

twelve Regional Corporations organizec pursuant to this

section according to the number of Natives enrolled in each

region pursuant to section 5. The provisions of this sub-

section shall not apply to the thirteenth Regional Corpora-

tion if organized pursuant to subsection (c) hereof.

(j) During the five years following the enactment of this

Act, not less than 10% of all corporate funds received by

each of the twelve Regional Corporations under section 6

(Alaska Native Fund), and under subsection (i) (revenues

12a

from the timber resources and subsurface estate patented

to it pursuant to this Act), and all other net income, shall

be distributed among the stockholders of the twelve Re-

gional Corporations. Not less than 45% of funds from such

sources during the first five-year period, and 50% ‘ there-

after, shall be distributed among the Village Corporations

in the region and the class of stockholders who are not resi-

dents of those villages, as provided in subsection to it. [sic]

In the case of the thirteenth Regional Corporation, if or-

ganized, not less than 50% of all corporate funds received

under section 6 shall be distributed to the stockholders.

(k) Funds distributed among the Village Corporations

shall be divided among them according to the ratio that

the number of shares of stock registered on the books of

the Regional Corporation in the names of residents of each

village bears to the number of shares of stock registered in

the names of residents in all villages.

(1) Funds distributed to a Village Corporation may be

withheld until the village has submitted a plan for the use

of the money that is satisfactory to the Regional Corpora-

tion. The Regional Corporation may require a village plan

to provide for joint ventures with other villages, and for

joint financing of projects undertaken by the Regional Cor-

poration that will benefit the region generally. In the event

of disagreement over the provisions of the plan, the issues

in disagreement shall be submitted to arbitration, as shall

be provided for in the articles of incorporation of the Re-

gional Corporation.

(m) When funds are distributed among Village Cor-

porations in a region, an amount computed as follows shall

be distributed as dividends to the class of stockholders who

are not residents of those villages: The amount distributed

as dividends shall bear the same ratio to the amount dis-

tributed among the Village Corporations that the number

of shares of stock registered on the books of the Regional

Corporation in the names of nonresidents of villages bears

edie te

Ta Ne ar 2 ee PE es 4 6 OF 2

13a

to the number of shares of stock registered in the names

of village residents: Provided, That an equitable portion

of the amount distributed as dividends may be withheld

and combined with Village Corporation funds to finance

projects that will benefit the region generally.

(n) The Regional Corporation may undertake on behalf

of one or more of the Village Corporations in the region

any project authorized and financed by them.

(0) The accounts of the Regional Corporation shall be

audited annually in accordance with generally accepted

auditing standards by independent certified public account-

ants or independent licensed public accountants, certified

or licensed by a regulatory authority of the State or the

United States. The audits shall be conducted at the place

or places where the accounts of the Regional Corporation

are normally kept. All books, accounts, financial records,

reports, files, and other papers, things, or property belong-

ing to or in use by the Regional Corporation and necessary

to facilitate the audits shall be available to the person or

persons conducting the audits; and full facilities for veri-

fying transactions with the balances or securities held by

depositories, fiscal agent, and custodians shall be afforded

to such person or persons. Fach audit report or a fair and

reasonably detailed summary thereof shall be transmitted

to each stockholder, to the Secretary of the Interior and

to the Committees on Interior and Insular Affairs of the

Senate and the House of Representatives.

(p) In the event of any conflict between the provisions

of this section and the laws of the State of Alaska, the

provisions of this section shall prevail.

(q) Two or more Regional Corporations may contract

with the same business management group for investment

services and advice regarding the investment of corporate

funds.

l4a

VILLAGE CORPORATIONS

43 U.S.C. § 1607

Sec. 8. (a) The Native residents of each Native village

entitled to receive lands and benefits under this Act shall

organize as a business for profit or nonprofit corporation

under the laws of the State before the Native village may

receive patent to lands or benefits under this Act, except as

otherwise provided.

(b) The initial articles of incorporation for each Village

Corporation shall be subject to the approval of the Re-

gional Corporation for the region in which the village is

located. Amendments to the articles of incorporation and

the annual budgets of the Village Corporations shall, for

a period of five years, be subject to review and approval

by the Regional Corporation. The Regional Corporation

shall assist and advise Native villages in the preparation

of articles of incorporation and other documents necessary

to meet the requirements of this subsection.

audit, and transfer of stock ownership on death or by court

decree provided for Regional Corporations in section 7

shall apply to Village Corporations except that audits need

not be transmitted to the Committees on Interior and In-

sular Affairs of the Senate and the House of Represen-

tatives.

* o . *

STATUTE OF LIMITATIONS

43 U.S.C. § 1609

Sec. 10. (a) Notwithstanding any other provision of law,

any civil action to contest the authority of the United

States to legislate on the subject matter or the legality of

this Act shall be barred unless the complaint is filed within

one year of the date of enactment of this Act, and no such

action shall be entertained unless it is commenced by a duly

es a

il _

De ROE lL eel tibia ie

15a

authorized officia! of the State. Exclusive jurisdiction over

such action is hereby vested in the United States District

Court for the District of Alaska. The purpose of this limi-

tation on suits is to insure that, after the expiration of a

reasonable period of time, the right, title, and interest of

the United States, the Natives, and the State of Alaska

will vest with certainty and finality and may be relied

upon by all other persons in their relations with the State,

the Natives, and the United States.

(b) In the event that the State initiates litigation or vol-

untarily becomes a party to litigation to contest the au-

thority of the United States to legislate on the subject mat-

ter or the legality of this Act, all rights of land selection

granted to the State by the Alaska Statehood Act shall be

suspended as to any public lands which are determined by

the Secretary to be potentially valuable for mineral de-

velopment, timber, or other commercial purposes, and no

selections shall be made, no tentative approvals shall be

granted, and no patents shall be issued for such lands

during the pendency of such litigation. In the event of such

suspension, the State’s right of land selection pursuant to

section 6 of the Alaska Statehood Act shall be extended for

a period of time equal to the period of time the selection

right was suspended.

WITHDRAWAL OF PUBLIC LANDS

43 U.S.C. § 1610

Sec. 11. (a) (1) The following public lands are with-

drawn, subject to valid existing rights, from all forms of

appropriation under the public land laws, including the

mining and mineral leasing laws, and from selection under

the Alaska Statehood Act, as amended:

(A) The lands in each township that encloses all or

part of any Native village identified pursuant to sub-

section (b);

16a

(B) The lands in each township that is contiguous

to or corners on the township that encloses all or part

of such Native village; and

to or corners on a township containing lands with-

drawn by paragraph (B) of this subsection.

The following lands are excepted from such withdrawal:

lands in the National Park System and lands withdrawn or

reserved for national defense purposes other than Naval

Petroleum Reserve Numbered 4.

(2) All lands located within the townships described in

subsection (a) (1) hereof that have been selected by, or

tentatively approved to, but not yet patented to, the State

under the Alaska Statehood Act are withdrawn, subject to

valid existing rights, from all forms of appropriation un-

der the public land jaws, including the mining and mineral

leasing laws, and from the creation of third party interests

by the State under the Alaska Statehood Act.

(3) (A) If the Secretary determines that the lands with-

drawn by subsections (a) (1) and (2) hereof are insuffi-

cient to permit a Village or Regional Corporation to select

the acreage it is entitled to select, the Secretary shall with-

draw three times the deficiency from the nearest unre-

served, vacant and unappropriated public lands. In making

this withdrawal the Secretary shall, insofar as possible,

withdraw public 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: Provided, That if the

Secretary, pursuant to section 17, and 22(e) determines

there is a need to expand the boundaries of a National

Wildlife Refuge to replace any acreage selected in the

Wildlife Refuge System by the Village Corporation the

withdrawal under this section shall not include lands in

the Refuge.

Se eS ee

” . . i

ee ee -— ——

17a

(B) The Seeretary shall make the withdrawal provided

for in subsection (3) (A) hereof on the basis of the best

available information within sixty days of the date of

enactment of this Act, or as soon thereafter as practicable.

(b) (1) The Native villages subject to this Act are as

follows:

NAME OF PLACE AND REGION

Atfognak, Afognak Island.

Akhiok, Kodiak.

Akiachak, Southwest Coastal Lowland.

Akiak, Southwest Coastal Lowland.

Akutan, Aleutian.

Alakanuk, Southwest Coastal Lowland.

Alatna, Koyukuk-Lower Yukon.

Aleknagik, Bristol Bay,

Allakaket, Koyukuk-Lower Yukon.

Ambler, Bering Strait.

Anaktuvuk Pass, Arctic Slope.

Andreafsey, Southwest Coastal Lowland.

Aniak, Southwest Coastal Lowland.

Anvik, Koyukuk-Lower Yukon.

Arctic Village, Upper Yukon-Poreupine.

Atka, Aleutian.

Atkasook, Arctie Slope.

Atmautluak, Southwest Coastal Lowland.

Barrow, Arctic Slope.

Beaver, Upper Yukon-Porcupine,

Belkofsky, Aleutian.

Bethel, Southwest Coastal Lowland.

Bill Moore’s Southwest Coastal Lowland.

Biorka, Aleutian.

Birch Creek, Upper Yukon-Poreupine.

Brevig Mission, Bering Strait.

Buckland, Bering Strait.

Candle, Bering Strait.

Cantwell, Tanana.

18a

Canyon Village, Upper Yukon-Porcupine.

Chalkyitsik, Upper Yukon-Poreupine.

Chanilut, Southwest Coastal Lowland.

Cherfornak, Southwest Coastal Lowland.

Chevak, Southwest Coastal Lowland.

Chignik, Kodiak.

Chignik Lagoon, Kodiak.

Chignik Lake, Kodiak.

Chistochina, Copper River.

Chitina, Copper River.

Chukwuktoligamute, Southwest Coastal Lowland.

Circle, Upper Yukon-Poreupine.

Clark’s Point, Bristol Bay.

Copper Center, Copper River.

Crooked Creek, Upper Kuskokwim.

Kwethluk, Southwest Coastal Lowland.

K wigillingok, Southwest Coastal Lowlund.

Larsen Bay, Kodiak.

Levelock, Bristol Bay.

Lime Village, Upper Kuskokwim,

Lower Kalskag, Southwest Coastal Lowland.

McGrath, Upper Kuskokwim.

Makok, Koyukuk-Lower Yukon.

Manley Hot Springs, Tanana.

Manokotak, Bristol Bay.

Marshall, Southwest Coastal Lowland.

Mary’s Igloo, Bering Strait.

Medfra, Upper Kuskokwim.

Mekoryuk, Southwest Coastal Lowland.

Mentasta Lake, Copper River.

Minchumina Lake, Upper Kuskokwim

Minto, Tanana.

Mountain Village, Southwest Coastal Lowland.

Nabesna Village, Tanana.

Naknek, Bristol Bay.

Napaimute, Upper Kuskokwim.

Napakiak, Southwest Coastal Lowland.

Se leet hte ee eee ED a ERE era) Dee

ee I ee ee ee

19a

Napaskiak, Southwest Coastal Lowland.

Nelson Lagoon, Aleutian,

Nenana, Tanana.

Newhalen, Cook Inlet.

New Stuyahok, Bristol Bay.

Newtok, Southwest Coastal Lowland.

Nightmute, Southwest Coastal Lowland.

Nikolai, Upper Kuskokwim.

Nikolski, Aleutian.

Ninilehik, Cook Inlet.

Noatak, Bering Strait.

Nome, Bering Strait.

Nondalton, Cook Inlet.

Nooiksut, Arctie Slope.

Noorvik, Bering Strait.

Northeast Cape, Bering Sea.

Northway, Tanana.

Nulato, Koyukuk-Lower Yukon.

Nunapitchuk, Southwest Coastal Lowland.

Ohogamiut, Southwest Coastal Lowland.

Old Harbor, Kodiak.

Oscarville, Southwest Coastal Lowland.

Ouzinkie, Kodiak.

Paradise, Koyukuk-Lower Yukon.

Pauloff Harbor, Aleutian.

Pedro Bay, Cook Inlet

Perryville, Kodiak,

Deering, Bering Strait.

Dillingham, Bristol Bay.

Dot Lake, Tanana.

Kagle, Upper Yukon-Poreupine,

Kek, Southwest Coastal Lowland.

EKgegik, Bristol Bay.

Eklutna, Cook Inlet.

Ekuk, Bristol Bay.

20a

Ekwok, Bristol Bay.

lim, Bering Strait.

Emmonak, Southwest Coastal Lowland,

English Bay, Cook Inlet.

False Pass, Aleutian.

Fort Yukon, Upper Yukon-Poreupine,

Gakona, Copper River.

Galena, Koyukuk-Lower Yukon.

Gambell, Bering Sea.

Georgetown, Upper Kuskokwim.

Golovin, Bering Strait.

Goodnews Bay, Southwest Coastal Lowland.

Grayling, Koyukuk-Lower Yukon.

Gulkana, Copper River.

Hamilton, Southwest Coastal Lowland.

Holy Cross, Koyukuk-Lower Yukon.

Hooper Bay, Southwest Coastal Lowland.

Hughes, Koyukuk-Lower Yukon.

Huslia, Koyukuk-Lower Yukon,

Igiugig, Bristol Bay.

Iliamma, Cook Inlet.

Inalik, Bering Strait.

Ivanof Bay, Aleutian.

Kaguyak, Kodiak,

Kaktovik, Aretie Slope.

Kalskag, Southwest Coastal Lowland.

Kaltag, Koyukuk-Lower Yukon.

Karluk, Kodiak.

Kasigluk, Southwest Coastal Lowland.

Kiana, Bering Strait.

King Cove, Aleutian.

Kipnuk, Southeast [sic] Coastal Lowland.

Kivalina, Bering Strait.

Kobuk, Bering Strait.

Kokhanok, Bristol Bay.

Koliganek, Bristol Bay.

Kongiganak, Sonthwest Coustal Lowland.

2la

KXotlik, Southwest Coastal Lowland.

Kotzebue, Bering Strait.

Koyuk, Bering Strait.

KKoyukuk, Koyukuk-Lower Yukon.

Pilot Point, Bristol Bay.

Pilot Station, Southwest Coastal Lowland.

Pitkas Point, Southwest Coastal Lowland.

Platinum, Southwest Coastal Lowland.

Point Hope, Arctie Slope.

Point Lay, Arctie Slope.

Portage Creek (Ohgsenakale), Bristol Bay.

Port Graham, Cook Inlet.

Port Heiden (Meshick), Aleutian.

Port Lions, Kodiak.

Quinhagak, Southwest Coastal Lowland.

Rampart, Upper Yukon-Poreupine.

Red Devil, Upper Kuskokwim,

Ruby, Koyukuk-Lower Yukon.

Russian Mission or Chauthalue (Kuskokwim), Upper

Kuskokwim.

Russian Mission (Yukon), Southwest Coastal Lowland,

St. George, Aleutian.

St. Mary’s, Southwest Coastal Lowland.

St. Michael, Bering Strait.

St. Paul, Aleutian.

Salamatof, Cook Inlet.

Sand Point, Aleutian.

Savonoski, Bristol Bay.

Savoonga, Bering Sea.

Scammon Bay, Southwest Coastal Lowland.

Selawik, Bering Strait.

Seldovia, Cook Inlet.

Shageluk, Koyukuk-Lower Yukon.

Shaktoolik, Bering Strait.

Sheldon’s Point, Southwest Coastal Lowland.

Shishmaref, Bering Strait.

Shungnak, Bering Strait.

Slana, Copper River.

22a

Sleetmute, Upper Kuskokwim,

South Naknek, Bristol Bay.

Squaw Harbor, Aleutian.

Stebbins, Bering Strait.

Stevens Village, Upper Yukon-Poreupine.

Stony River, Upper Kuskokwim,

Takotna, Upper Kuskokwim.

Tanacross, Tanana.

Tanana, Koyukuk-Lower Yukon,

Tatilek, Chugach.

Tazlina, Copper River.

Telida, Upper Kuskokwim.

Teller, Bering Strait.

Tetlin, Tanana.

Togiak, Bristol Bay.

Toksook Bay, Southwest Coastal Lowland.

Tulusak, Southwest Coastal Lowland.

Tuntutuliak, Southwest Coastal Lowland.

Tununak, Southwest Coastal Lowland.

Twin Hills, Bristol Bay.

Tyonek, Cook Inlet.

Ugashik, Bristol Bay.

Unalakleet, Bering Strait.

Unalaska, Aleutian.

Unga, Aleutian.

Uyak, Kodiak.

Venetie, Upper Yukon-Poreupine.

Wainwright, Arctic Slope.

Wales, Bering Strait.

White Mountain, Bering Strait.

(2) Within two and one-half years from the date of

enactment of this Act, 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 subsections

14(a) and (b), and any withdrawal for such village shall

expire, if the Secretary determines that—

— ———— ee

~~ es oman weak.

——~

23a

(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 subsection 14(h).

(3) Native villages not listed in subsection (b) (1) here-

of shall be eligible for land and benefits under this Act and

lands shall be withdrawn pursuant to this section if the

Secretary within two and one-half years from the date of

enactment of this Act, determines that—

(A) twenty-five or more Natives were residents of

an esiablished village on the 1970 census enumeration

date as shown by the census or other evidence satis-

factory to the Secretary, who shall make findings of

fact in each instance; and

(B) the village is not of a modern and urban char-

acter, and a majority of the residents are Natives,

NATIVE LAND SELECTIONS

43 U.S.C, § 1611

See, 12, (a) (1) During a period of three years from the

date of enactment of this Act, the Village Corporation for

each Native village identified pursuant to section 11 shall

select, in accordance with rules established by the Secre-

tary, all of the township or townships in which any part

of the village is located, plus an area that will make the

total selection equal to the acreage to which the village is

entitled under section 14. The selection shall be made from

lands withdrawn by subsection 11(a): Provided, That no

Village Corporation may select more than 69,120 acres

24a

from lands withdrawn by subsection 11(a) (2), and not

more than 69,120 acres from the National Wildlife Refuge

System, and not more than 69,120 acres in a National For-

est: Provided further, That when a Village Corporation se-

lects the surface estate to lands within the National Wild-

life 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 subsection 11(a) within the region, if pos-

sible,

(2) Selections made under this subsection (a) shall be

contiguous and in reasonably compact tracts, except as

separated by bodies of water or by lands which are un-

available for selection, and shall be in whole sections and,

wherever feasible, in units of not less than 1,280 acres.

(b) The difference between twenty-two million acres and

the total acreage selected by Village Corporations pursu-

ant to subsection (a) shall be allocated by the Secretary

among the eleven Regional Corporations (which excludes

the Regional Corporation for southeastern Alaska) on the

basis of the number of Natives enrolled in each region.

Each Regional Corporation shall reallocate such acreage

among the Native villages within the region on an equit-

able basis after considering historic use, subsistence needs,

and population. The action of the Secretary or the Cor-

poration shall not be subject to judicial review. Each Vil-

lage Corporation shall select the acreage allocated to it

from the lands withdrawn by subsection 11(a).

the 22 million acres selected by Village Corporations pur-

suant to subsections (a) and (b) shall be allocated among

the eleven Regional Corporations (which excludes the Re-

gional Corporation for southeastern Alaska) as follows:

(1) The number of acres each Regional Corporation is

entitled to receive shall be computed (A) by determining

on the basis of available data the percentage of all land in

—_, ee

25a

Alaska (excluding the southeastern region) that is within

cach of the eleven regions, (B) by applying that percentage

to thirty-eight million acres reduced by the acreage in the

southeastern region that is to be selected pursuant to

section 16, and (C) by deducting from the figure so com-

puted the number of acres within that region selected pur-

suant to subsections (a) and (b).

(2) In the event that the total number of acres selected

within a region pursuant to subsections (a) and (b) ex-

ceeds the percentage of the reduced thirty-eight million

acres allotted to that region pursuant to subsection (c) (1)

(B), that region shall not be entitled to receive any lands

under this subsection (c). For each region so affected the

difference between the acreage calculated pursuant to sub-

section (ce) (1) (B) and the acreage selected pursuant to

subsections (a) and (b) shall be deducted from the acreage

calculated under subsection (c) (1) (C) for the remaining

regions which will select lands under this subsection (c).

The reductions shall be apportioned among the remaining

regions so that each region’s share of the total reduction

hears the same proportion to the total reduction as the

total land area in that region (as calculated pursuant to

subsection (c) (1) (4) bears to the total land area in all

of the regions whose allotments are to be reduced pursuant

to this paragraph.

(3) Before the end of the fourth year after the date of

enactment of this Act, each Regional Corporation shall

select the acreage allocated to it from the lands within the

region withdrawn pursuant to subsection 11(a) (1), and

from the lands within the region withdrawn pursuant to

subsection 11(a) (3) to the extent lands withdrawn pur-

suant to subsection 11(a) (1) are not sufficient to satisfy

its allocation: Provided, That within the lands withdrawn

by subsection 11(a) (1) the Regional Corporation may

select only even numbered townships in even numbered

ranges, and only odd numbered townships in odd numbered

ranges.

26a

(d) To insure that the Village Corporation for the Na-

tive village at Dutch Harbor, if found eligible for land

grants under this Act, has a full opportunity to select lands

within and near the village, no federally owned lands,

whether improved or not, shall be disposed of pursuant to

the Federal surplus property disposal laws for a period

of two years from the date of enactment of this Act. The

Village Corporation may select such lands and improve-

ments and receive patent to them pursuant to subsection

14(a) of this Act,

(e) Any dispute over the land selection rights and the

boundaries of Village Corporations shall be resolved by a

board of arbitrators consisting of one person selected by

each of the Village Corporations involved, and an addi-

tional one or two persons, whichever is needed to make

an odd number of arbitrators, such additional person or

persons to be selected by the arbitrators selected by. the

Village Corporations.

CONVEYANCE OF LANDS

43 U.S.C. § 1613

Sec. 14. (a) Immediately after selection by a Village

Corporation for a Native village listed in section 11 which

the Secretary finds is qualified for land benefits under this

Act, the Secretary shall issue to the Village Corporation

a patent to the surface estate in the number of acres shown

in the following table:

If the village had on the

1970 census enumeration It shall be entitled to a pa-

date a Native population tent to an area of public

hetween— lands equal to—

ee en ho kin ad 40 che 69,120 acres.

SO A Sioa cea cn oe eek eae 92,160 acres.

Se OE GE civic keeete eh eee 115,200 acres.

rae a 2a

ned te et

ey Eo aie aw kee as Sk eas. 138,240 acres.

I Cs ek ene et 161,280 acres.

The lands patented shall be those selected by the Vil-

lage Corporation pursuant to subsection 12(a). In ad-

dition, the Secretary shall issue to the Village Cor-

poration a patent to the surface estate in the lands

selected pursuant to subsection 12(b).

(b) Immediately after selection by any Village Corpora-

tion for a Native village listed in section 16 which the

Secretary finds is qualified for land benefits under this Act,

the Secretary shall issue to the Village Corporation a

patent to the surface estate to 23,040 acres. The lands

patented shall be the lands within the township or town-

ships that enclose the Native village, and any additional

lands selected by the Village Corporation from the sur-

rounding townships withdrawn for the Native village by

subsection 16(a).

(e) Immediately after selection by a Regional Corpora-

tion, the Seeretary shall convey to the Regional Corpora-

tion title to the surface and/or the subsurface estates, as

is appropriate, in the lands selected.

(f) When the Secretary issues a patent to a Village

Corporation for the surface estate in lands pursuant to

subsections (a) and (b), he shall issue to the Regional

Corporation for the region in which the lands are located

a patent to the subsurface estate in such lands, except

lands located in the National Wildlife Refuge System and

lands withdrawn or reserved for national defense purposes,

including Naval Petroleum Reserve Numbered 4, for which

in lieu rights are provided for in subsection 12(a) (1):

Provided, That the right to explore, develop, or remove

minerals from the subsurface estate in the lands within the

boundaries of any Native village shall be subject to the

consent of the Village Corporation.

28a

MISCELLANEOUS

43 U.S.C. § 1621

(e) If land within the National Wildlife Refuge System

is selected by a Village Corporation pursuant to the pro-

visions of this Act, the secretary shall add to the Refuge

System other public lands in the State to replace the lands

selected by the Village Corporation.

(g) If a patent is issued to any Village Corporation for

land in the National Wildlife Refuge System, the patent

shall reserve to the United States the right of first refusal

if the land is ever sold by the Village Corporation. Not-

withstanding any other provision of this Act, every patent

issued by the Secretary pursuant to this Act—which covers

lands lying within the boundaries of a National Wildlife

Refuge on the date of enactment of this Act shall contain

a provision that such lands remain subject to the laws and

regulations governing use and development of such Refuge.

(h) (1) All withdrawals made under this Act, except as

otherwise provided in this subsection, shall terminate with-

in four years of the date of enactment of this Act: Pro-

vided, That any lands selected by Village or Regional

Corporations or by a Native group under section 12 shall

remain withdrawn until conveyed pursuant to section 14.

(2) The withdrawal of lands made by subsection 11(a)

(2) and section 16 shall terminate three years from the

date of enactment of this Act.

* * e .

(4) The Secretary is authorized to terminate any with-

drawal made by or pursuant to this Act whenever he

determines that the withdrawal is no longer necessary to

accomplish the purposes of this Act.

Sl el te

sain Wik etitconds

a oe

29a

PUBLICATIONS

43 U.S.C. § 1624

Sec. 25. The Secretary is authorized to issue and publish

in the Federal Register, pursuant to the Administrative

Procedure Act, such regulations as may be necessary to

carry out the purposes of this Act.

SAVING CLAUSE

43 U.S.C. § 1625

Sec. 26. To the extent that there is a conflict between

any provision of this Act and any other Federal laws ap-

plicable to Alaska, the provisions of this Act shall govern.

Approved December 18, 1971.

30a

APPENDIX B

FrperaL Reoister, Vou. 38, No. 103

Wednesday, May 30, 1973

Title 43—Publie Lands: Interior

Cuaprter [1—Bureavu or LAND MANAGEMENT, DEPARTMENT

OF THE INTERIOR

Subchapter B—Land Resource Management (2000)

Part 2650—A.aska Native SELECTIONS

Subpart 2651-—Village Selections

§ 2651.0-3 Authority.

Sections 12 and 16(b) of the act provide for the selection

of lands by eligible village corporations.

§ 2651.1 HMntitlement.

(a) Village corporations eligible for land benefits under

the act shall be entitled to a conveyance to the surface

estate in accordance with sections 14(a) and 16(b) of the

act.

(b) In addition to the land benefits in paragraph (a) of

this section, each eligible village corporation shall be en-

titled to select and receive a conveyance to the surface

estate for such acreage as is reallocated to the village

corporation in accordance with section 12(b) of the act.

§ 2651.2 Eligibility requirements.

(a) Pursuant to sections 11(b) and 16(a) of the act, the

Director, Juneau Area Office, Bureau of Indian Affairs,

shall review and make a determination, not later than

December 19, 1973, as to which villages are eligible for

benefits under the act.

}

3la

(1) Review of listed native villages. The Direetor, Ju-

neau Area Office, Bureau of Indian Affairs, shall make a

determination of the eligibility of villages listed in section

11(b)(1) and 16(a) of the act. He shall investigate and

examine available records and evidence that may have a

bearing on the character of the village and its eligibility

pursuant to paragraph (b) of this section.

(2) Findings of fact and notice of proposed decision.

After completion of the investigation and examination of

records and evidence with respect to the eligibility of a

village listed in sections 11(b)(1) and 16(a) of the act for

land benefits, the Director, Juneau Area Office, Bureau of

Indian Affairs, shall publish in the Frprrat Reorster and

in one or more newspapers of general circulation in Alaska

his proposed decision with respect to such eligibility and

shall mail a copy «f the proposed cecision to the affected

village, all villoscs Joeated in the regiva in which the affec-

ted village is located, all regional corporations within the

State of Alaska and the State of Alaska. His proposed

decision is subject to protest by any interested party within

30 days of the publication of the proposed decision in the

I’eperaL Rearstrer. If no valid protest is received within the

40-day period, such proposed decision shall become final

and shall be published in the Frnerat Reorsrer. If the final

decision is in favor of a listed village, the Director, Juneau

Area Office, Bureau of Indian Affairs, shall issue a certi-

fieate as to the eligibility of the village in question for

land benefits under the act, and certify the record and the

decision to the Secretary. Copies of the final decisions and

certificates of village eligibility shall be mailed to the

affected village, all villages located in the region in which

the affected village is located, all regional corporations

within the State of Alaska, and the state of Alaska.

(3) Protest. Within 30 days from the date of publication

of the proposed decision in the FrprraL Reoister, any

interested party may protest a proposed decision as to the

32a

eligibility of a village. No protest shall be considered which

is not accompanied by supporting evidence. The protest

shall be mailed to the Director, Juneau Area Office, Bureau

of Indian Affairs.

(4) Action on protest. Upon receipt of a protest, the

Director, Juneau Area Office, Bureau of Indian Affairs,

shall examine and evaluate the protest and supporting

evidence required herein, together with his record of find-

ings of fact and proposed decision, and shall render a

decision on the eligibility of the Native village that is the

subject of the protest. Such decision shall be rendered

within 30 days from the receipt of the protest and support-

ing evidence by the Director, Juneau Area Office, Bureau

of Indian Affairs. The decision of the Director, Juneau

Area Offce, Bureau of Indian Affairs, shall be published

in the Feperat Reoister and in one or more newspapers of

general circulation in the State of Alaska and a copy of

the decision and findings of fact upon which the decision

is based shall be mailed to the affected village, all villages

located in the region in which the affected village is located,

all regional corporations within the State of Alaska, the

State of Alaska, and any other party of record. Such deci-

sion shall become final unless appealed to the Secretary

by a notice filed with the ad hoe board as established in

paragraph (a)(5) of this section, within 30 days of its

publication in the Freverat Reorsrer.

(5) Action on appeals. Appeals to the Secretary shall be

to the ad hoe Board which he has personally appointed.

At least one member of the ad hoe Board shall be familiar

with Native village life. Among those otherwise qualified

to serve on the ad hoe Board, preference will be given to

those familiar with Native village life. Appeals shall be

filed and governed by the applicable regulations in part 4,

subpart G, of this title, except that the appellant shall have

not more than 15 days from the date of filing of his notice

of appeal within which to file an appeal brief, and the

Ce —T- —

ee ae oe ee Ee Ne aa Se

~~.

33a

opposing parties shall have not more than 15 days from

the date of receipt of the appellant’s brief within which to

file an answering brief. No more than 15 days shall be

allowed for the filing of additional briefs in connection with

such appeals. All hearings held in connection with such

appeals shall be conducted in the State of Alaska. The

decision of the ad hoe Board shall be submitted to the

Seeretary for his personal approval.

(6) Applications by unlisted villages for determination

of eligibility. The head or any authorized subordinate offi-

cer of a Native village not listed in section 11(b) of the act

may file on behalf of the unlisted village an application

for a determination of its eligibility for land benefits under

the act. Such application shall be filed in duplicate with the

Director, Juneau Area Office, Bureau of Indian Affairs,

prior to September 1, 1973. If the application does not

constitute prima facie evidence of compliance with the

requirements of paragraph (b) of this section, he shall

return the application to the party filing the same with

a statement of reasons for return of the application, but

such filing, even if returned, shall constitute timely filing

of the application. The Director, Juneau Area Office, Bureau

of Indian Affairs, shall immediately forward an application

which appears to meet the criteria for eligibility to the

appropriate office of the Bureau of Land Management for

filing. Hach application must identify the township or town-

ships in which the Native village is located.

(7) Segregation of land. The receipt of the selection

application for filing by the Bureau of Land Management

shall operate to segregate the lands in the vicinity of the

village as provided in sections 11(a) (1) and (2) of the

act.

(8) Action on application for eligibility. Upon receipt

of an application which appears to meet the criteria for

eligibility, the Director, Juneau Area Office, Bureau of

Indian Affairs, shall have a notice of the filing of the

34a

application published in the Fepera Reorsrer and in one

or more newspapers of general circulation in Alaska and

shall promptly review the statements contained in the

application. He shall investigate and examine available

records and evidence that may have a bearing on the char-

acter of the village and its eligibility pursuant to this

subpart 2651, and thereafter make findings of fact as to

the character of the village. No later than December 19,

1973, the Director, Juneau Area Office, Bureau of Indian

Affairs, shall make a determination as to the eligibility of

the village as a Native village for land benefits under the

act and shall issue a decision. He shall publish his decision

in the FeperaL Reoister and in one or more newspapers

of general cireulation in Alaska and shall mail a copy of

the decision to the representative or representatives of

the village, all villages in the region in which the village

is located, all regional corporations, and the State of

Alaska.

(9) Protest to eligibility determination. Any interested

party may protest a decision of the Director, Juneau Area

Office, Bureau of Indian Affairs, regarding the eligibility

of a Native village for land benefits under the provisions

of sections 11(b)(3) (A) and (B) of the act by filing a

notice of protest with the Director, Juneau Area Office,

Bureau of Indian Affairs, within 30 days from the date

of publication of the decision in the Fepera, Reorsrer, A

copy of the protest must be mailed to the representative

or representatives of the village, all villages in the region

in which the village is located, all regional corporations

within Alaska, the State of Alaska, and any other parties

of record. If no protest is received within the 30-day period,

tho decision shall become final and the Director, Juneau

Area Office, Bureau of Indian Affairs, shall certify the

record and the decision to the Secretary. No protest shall

be considered which is not accompanied by supporting

evidence. Anyone protesting a decision concerning the

eligibility or ineligibility of an unlisted Native village shall

——

———

‘

;

{

‘

rg Oe a ee sn

35a

have the burden of proof in establishing that the decision

is incorrect. Anyone appealing a decision concerning the

eligibility or ineligibility of an unlisted Native village shall

have the burden of proof in establishing that the decision

is incorrect.

(10) Action on protest, appeal. Upon receipt of a pro-

test, the Director, Juneau Area Office, Bureau of Indian

Affairs, shall follow the procedure outlined in paragraph

(a) (4) of this section. If an appeal is taken from a decision

on eligibility, the provisions of paragraph (a)(5) of this

section shall apply.

(b) Exeept as provided in subparagraph (4) of this

parazraph, villages must meet each of the ‘ollowing 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 iden-

tifiable 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 be-

cause of an act of God or government authority oceurring

within the preceding 10 years.

(3) The village ‘must not be modern and urban in char-

acter. A village will be considered to be of modern and

urban character if the Secretary determines that it

possessed all of the following attributes as of April 1, 1970:

36a

(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 pro-

vide goods or services such as transient accommodations

or eating establishments, specialty retail stores, plumbing

and electrical services, ete.

(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 ease 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.

* ? i, *

Rocers C. B. Morron,

Secretary of the Interior.

May 23, 1973.

[FR Doe. 73-10598 Filed 5-29-73; 8:45 am]

th. Re ee te 8 ee ee

~ a ca

37a

APPENDIX C

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1325

KONIAG, INC,

THE VILLAGE OF UYAK

Vv.

Ceci, D, ANDRUS, Secretary of the Interior, APPELLANT

(Civil 74-1061)

No. 76-1826

THE VILLAGE OF LITNIK KONIAG, INC.

CeciIL D. ANDRUS, Secretary of the Interior, APPELLANT

(Civil 74-1791)

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

O8a

No. 76-1327

SALAMATOF VILLAGE ASSOCIATION and

Cook INLET REGION, INC.

Ceci, D, ANDRUS, Secretary of the Interior, APPELLANT

(Civil 74-1134)

No. 76-1328

THE VILLAGE OF ANTON LARSEN BAY KONIAG, INC.

Ceci. D, ANDRUS, Secretary of the Interior, APPELLANT

(Civil 74-1792)

No. 76-1329

THE VILLAGE OF UGANIK KONIAG, INC.

Vv.

Cecit D. ANDRUS, Secretary of the Interior, APPELLANT

(Civil 74-1790)

No. 76-1830

THE VILLAGE OF BELLS FLATS KONIAG, INC.

Vv.

Ceci, D. ANpruS, Secretary of the Interivr, APPELLANT

(Civil 74-1798)

—_ ee ae

ne Et

39a

No. 76-1331

THE VILLAGE OF AYAKULIK KONIAG, INC.

Ceci, D, ANDRUS, Secretary of the Interior, APPELLANT

(Civil 74-1794)

No. 76-1332

THE VILLAGE OF PoRT WILLIAM KONIAG, INC.

Ceci, D. ANDRUS, Secretary of the Interior, APPELLANT

(Civil 74-1795 )

No. 76-1333

THE VILLAGE OF SOLOMON BERING SRAITS

NATIVE CORPORATION

Cecit D. ANDRUS, Secretary of the Interior, APPELLANT

(Civil 75-0452)

No. 76-1334

VILLAGE OF ALEXANDER CREEK COOK INLET REGION, INC.

Vv.

CeciL D, ANDRUS, Secretary of the Interior, APPELLANT

(Civil 75-1097)

40a

Appeals from the United States District Court

for the District of Columbia

mee ee

Argued March 24, 1977 | 727”

‘Wae® cate

Decided April 28, 1978 LSsas

Jacques B. Gelin, Attorney, Department of Justice,

with whom Peter R. Taft, Assistant Atterney General,

Edmund B. Clark, Raymond N. Zagone and Herbert

Pittle, Attorneys, Department of Justice, were on the

brief for appellant.

Edward Weinberg and F. Conger Fawcett with whom

Frederick L. Miller, Jr. and John P. Meade were on the

brief for appellees.

Avrum M. Gross, Attorney General, State of Alaska

filed a brief on behalf of the State of Alaska as amicus

curiae urging reversal.

Before: WRIGHT, Chief Judge, BAZELON and Robs,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Robb.

Concurring Opinion filed by Circuit Judge BAZELON.

Ross, Circuit Judge: The plaintiffs, eleven Native

Alaskan villages, filed this action to challenge decisions

of the Secretary of 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.

The Alaska area director of the Bureau of Indian

Affairs (BIA) had determined initially that all eleven

villages were eligible under ANCSA but on administra-

tive appeal the Secretary of the Interior ruled to the

ee ee ee ee ee ee

—

4la

contrary. Granting summary judgment to the villages *

the District Court vacated the Secretary’s determinations

and ordered the BIA decisions reinstated. Koniag, Inc.

v. Kleppe, 405 F. Supp. 1860 (D.D.C. 1975). The Dis-

trict Court did so in four of the cases on the ground that

the BIA decisions had been appealed to the Secretary by

a party without standing to do so; the appeals were

therefore unauthorized and invalid, and under Depart-

ment of the Interior regulations, the BIA decision, if

unappealed, constituted the final decision of the Secre-

tary. In the other seven cases, the court held the pro-

cedure followed to determine the appeals failed to comply

with due process and further, that congressional inter-

ference had infected the determinations. The court or-

dered the BIA decisions reinstated in these seven cases

because the effects of the congressional interference lin-

gered and the BIA decisions were the last untainted deci-

sions of the Secretary’s delegate.

On appeal the Secretary attacks each of the District

Court’s rulings on the merits and argues that the proper

remedy under any circumstance is a remand to him

rather than reinstatement of the BIA decisions. We con-

clude that the District Court erred on the standing and

congressional interference issues. We agree with the

District Court, however, that the appeal procedure used

here does not meet the requirements of due process. Ac-

cordingly, we hold that the proper remedy is a remand

to the Secretary to redetermine these cases.

'The villages are Alexander Creek, Anton Larsen Bay,

Ayakulik, Bells Flats, Litnik, Port William, Salamatof, Solo-

mon, Uganik, and Uyak. The Secretary has dismissed his

appeal from the judgment as it applies to the eleventh

village, Pauloff Harbor.

42a

THE ACT AND THE REGULATIONS

Claims of Native Alaskans have long created obstacles

to development of Alaska’s oil and other natural resources

and have raised questions of the state’s ability to take

dominion over public lands that it might otherwise select

under provisions of the Alaska Statehood Act. To deal

with this problem Congress intended ANCSA to accom-

plish a fair, rapid settlement of all aboriginal land claims

by Natives and Native groups without litigation. The

District Court’s opinion contains an excellent summary

of ANCSA, 405 F. Supp. 1364-67; for our purposes here,

however, the complexities of the Act can be simplified.

Under ANCSA, 40 million acres of land and $962,000,000

are to be distributed to Native villages and regional

corporations; in exchange, all aboriginal titles and claims

are to be extinguished. The funds and lands made avail-

able through the Act are to be divided among 13 regional

corporations, in which the Natives hold stock, and what-

ever villages are found to be eligible. Depending upon

their population, eligible villages may select between

69,120 and 161,280 acres from the public lands in their

vicinity. The village will receive a patent to the surface

estate and the regional corporation will receive a patent

to the subsurface estate. Village eligibility requirements

are set forth in the Act. 48 U.S.C. § 1610(b) (2), (8).

The Secretary of the Interior is charged with making vil-

lage eligibility determinations and with implementing

the Act.

The Secretary adopted regulations to govern the deci-

sion-making process. 43 C.F.R. Part 2650 (1973). These

regulations were applied in deciding the cases of the

eleven villages. The Alaska area director of the BIA

made initial eligibility determinations on all applicant

Native villages. He published his proposed decision in the

Federal Register and it became the final decision of the

Secretary unless protested by “any interested party”

43a

within thirty days. Upon receipt of a protest, the area

director evaluated it and rendered his final decision

within thirty days. This decision, in turn was appealed

to the Secretary by an “aggrieved party” filing notice with

the Alaska Native Claims Appeal Board.’ 43 C.F.R.

§ 2651.2 (1973) ; id. § 4.700 (1973). Although the regula-

tions did not require a particular type of hearing on

appeals, the Board referred all appeals to a Department

of the Interior Administrative Law Judge (ALJ) who

conducted a full de novo hearing on the record. The par-

ties were permitted to submit proposed findings and con-

clusions to the ALJ.

At this point the procedure veered from the usual

course of administrative law. The recommended decision

of the ALJ was forwarded to the Board without being

served on the villages concerned. The Board made formal

decisions based on the hearing record in each case and

forwarded its recommended decisions to the Secretary,

also without service on the villages. Only after the Secre-

tary personally decided to accept the Board’s decisions

were the recommended decisions of the ALJ and the

Board revealed to the parties.

STANDING

The first issue we must resolve is whether appeals

from the BIA decisions were properly taken. The BIA

area director determined that all ten of the villages be-

for us here, see note 1 supra, were eligible under ANCSA.

The U.S. Fish and Wildlife Service, the Forest Service,

and the State of Alaska appealed one or another of the

decisions, arguing that the villages did not meet the re-

quirements of the Act. After separate de novo proceed-

ings before an ALJ and review as described above, the

? Initially the Board was merely an ad hoc Board. Later

the present title was created.

44a

Secretary ruled that the villages were not eligible under

the Act.

In the District Court the villages renewed the argu-

ment which they had pressed before the ALJ that neither

the federal agencies nor the State had standing to appeal

from the BIA decisions. The District Court rejected the

argument with respect to six of the villages because of

the possibility that they might select land from a Wild-

life Refuge or National Forest. The court noted:

some presently immeasurable degree of disadvantage

may result if an unqualified village obtains authority

over a portion of the lands now in the exclusive care

of the United States and that this is sufficient to pro-

vide standing. . . . Moreover, the Forest Service and

the Fish and Wildlife Service have broad mandates

to protect our forests and wildlife, e. g., 16 U.S.C.

$$ 551, 553; 16 U.S.C. § 742a et seg. The Court is

particularly reluctant to deny standing to those most

likely in fact to have a legitimate concern about

these lands and to come forward to protect the public

interest, especially where the effect of finding stand-

ing is simply to allow adversary proceedings to be

held which, if properly conducted, could contribute

to fair and informed decision making.

495 F. Supp. at 1368-69.

We agree with the District Court’s reasoning here and

adopt it.” However the District Court went on to hold

‘The appellee villages have challenged the District Court’s

decision that the Forest Service and the Fish and Wildlife

Service have standing with respect to the six villages. The

Secretary argues that the challenge is barred because the

villages have not cross-appealed. Having prevailed below,

however, the villages obviously could not have cross-appealed

on this issue. Insofar as this attack on the ruling supports

their judgment below, however, they may urge the argument

here. United States v. American Ry. Express Co., 265 U.S.

425, 435 (1924); see Dandridge v. Williams, 397 U.S. 471,

475-76 n.6 (1970).

that the appeals from the BIA decisions in four other

cases were invalid because as to two, Anton Larsen Bay

and Bells Flats, the federal agencies had no standing to

take the appeals, and as to two others, Alexander Creek

and Solomon, the State of Alaska had no standing.

The Federal Agencies

The District Court ruled against the standing of the

agencies to appeal the cases of Anton Larsen Bay and

Bells Flats because

{ejach of these two villages had made extensive

good-faith commitments not to take land from a

wildlife refuge or national forest. Even the most

theoretical harm was removed by these commit-

ments...

405 F. Supp. at 1369.

The issue is whether the Secretary has violated his

regulations in permitting the Fish and Wildlife Service

and the Forest Service to appeal administratively the de-

cision on the eligibility of the two villages. Under the

regulations, “any interested party” may protest the BIA

initial decision, 43 C.F.R. § 2651.2(a) (3) (1978), and

“any party aggrieved” by the BIA final decision may ap-

peal to the Board. 43 C.F.R. § 4.700 (1973). The vil-

lages concede that these agencies were “interested par-

ties” for purposes of protest but argue that they were

not “parties aggrieved” to appeal. Citing Office of Com-

munication of the United Church of Christ v. FCC, 123

U.S. App. D.C. 328, 334, 359 F.2d 994, 1000 (1966) and

National Welfare Rights Organization v. Finch, 139 U.S.

App. D.C. 46, 53 n.27, 429 F.2d 725, 732 n.27 (1970) for

the proposition that “the concept of standing at the ad-

ministrative level and in the courts is essentially inter-

changeable,” brief at 15, the villages argue that the

agencies are not “parties aggrieved” because they have

not demonstrated the kind of concrete injury necessary

46a

for standing to obtain judicial review. Neither case

stands for so broad a proposition.

In the Church of Christ case the court assumed that

the same standards apply to determining standing before

an agency and standing to obtain judicial review and

went on to hold that the FCC must permit listeners to

participate in broadcast relicensing proceedings. In the

National Welfare Rights Organization case the court

reasoned that a party with an interest sufficient to obtain

judicial review of agency action should be permitted to

participate before the agency to ensure it meaningful

judicial review on all the issues. But it does not follow

from either case that a party must be excluded from

participation before the agency if it does not have a

sufficient interest to meet Article III requirements for

judicial review. Indeed, as we pointed out in the Na-

tional Welfare Rights Organization case, “standing to

sue depend|s]| on more restrictive criteria than standing

to appear before administrative agencies. . .” 139 U.S.

App. D.C. at 53 n.27, 429 F.2d at 732 n.27; see Gardner

v. FCC, 174 U.S. App. D.C. 284, 288, 580 F.2d 1086,

1090 (1976). See also 3 K. Davis, Administrative Law

Treatise § 22.08, at 240 (1958). To determine what a

party must show to qualify as aggrieved under the regu-

lations, we look to the scheme intended and devised by

the Congress and the Secretary. See Office of Communi-

cation of the United Church of Christ v. FCC, supra at

334-36, 359 F.2d at 1000-02. -

Congress sought to quiet the Native land claims in

Alaska justly and expeditiously, so that the State’s de-

velopment could proceed. At the same time Congress

took care to assure that grants of public lands would be

made only to eligible Native groups by requiring the Sec-

retary to review the eligibility of each village. Over two

hundred villages were involved. Although many findings

could be perfunctory because eligibility was clear, the

a ee es

ae ee ee a

47a

eligibility of some villages was in dispute. It is apparent

that the Secretary intended the area director of the BIA

to settle the easy, undisputed cases, but when a party

was adversely affected by the area director’s determina-

tion, the Secretary would make his own eligibility deter-

mination after more elaborate factfinding in the three-

tiered appeal process. A necessary corollary to this

scheme is that the term “party aggrieved” must be con-

strued generously to achieve the congressional objective

that determinations be careful as well as quick. We con-

clude, therefore, that grafting strict judicial standing

requirements onto these regulations would be inconsist-

ent with the Act and the Secretary’s plan to implement it.

Both the ALJ and the Board determined that the

Forest Service and the Fish and Wildlife Service were

parties aggrieved within the meaning of 43 C.F.R. § 4.700

(1973). Because he approved the Board’s decisions the

Secretary is presumed to have concurred. This interpre-

tation of the regulation is entitled to great deference.

Udall v. Tallman, 380 U.S. 1, 16 (1965).

The District Court found it determinative that the two

villages “had made extensive good-faith commitments not

to take land from a wildlife refuge or a national forest”.

405 F. Supp. at 1369. However, the ALJ and the Board

had held that this did not vitiate the standing of the agen-

cies to appeal. We agree. These villages are located on

Kodiak and Afognak Islands, large parts of which are

included in Chugach National Forest and Kodiak Na-

tional Wildlife Refuge. Available public land is thus lim-

ited and numerous villages appear to be eligible to select

from it. If the two villages make all their selections from

the limited unrestricted acreage, other villages may be

compelled to choose land within the refuge or forest. The

adverse effect on the Forest Service or the Fish and

Wildlife Service would be plain. Ample testimony in the

records of these two cases, credited by the ALJ, supports

48a

the likelihood of this occurring. Bells Flats ALJ Recom-

mended Decision at 9-10; Anton Larsen Bay ALJ Recom-

mended Decision at 9-10. At best, therefore, the com-

mitments of the two villages not to select forest or refuge

land attenuate the likelihood of harm to these agencies,

but they do not negate it. We cannot say that the

rationale of the ALJ, or of the Board in adopting it,

amounts to a “plainly erroneous” interpretation of the

term “party aggrieved” as it is used in the regulations.

Udall v. Tallman, supra at 17. Thus we must sustain

that interpretation and reverse the District Court’s hold-

ing that the appeals from the BIA decision on Anton

Larsen Bay and Bells Flats were invalid.

The State of Alaska

Alaska was the only party to appeal the decision on the

eligibility of Solomon and Alexander Creek. The Dis-

trict Court held that Alaska had no standing to do so be-

cause “‘|t|he State’s only interest was the speculative pos-

sibility that at some later time for some undisclosed rea-

son it might, under the Alaska Statehood Act, seek to

have land patented to it that would be claimed by these

villages.” 405 F. Supp. at 1369. We think this possibility

is enough to confer standing upon Alaska under the

regulations.

The Alaska Statehood Act, 72 Stat. 339 (1958), gives

Alaska until 1984 to select more than 108 million acres

from federal lands in the state not already reserved for

another purpose. Id. §6(a), (b), 72 Stat. 340. Putting

aside minor exceptions not relevant here, ANCSA re-

serves 25 townships immediately surrounding a Native

‘A political subdivision, the Borough of Matanuska-Susit-

na also challenged the eligibility of Alexander Creek. Be-

cause it appears that the interests of the State and its sub-

division are substantially identical, we will deal only with

the State’s positions here.

ee ee ee ae —

49a

village from which the village must select its lands. The

regional corporations may fill their land entitlements only

with land surrounding a village, and the land patented

to the villages and regional corporations cannot be selected

by the State. Thus it is in the interest of the regional

corporations to establish the existence of eligible villages

on valuable mineral-bearing lands, and it is in the inter-

est of the State to prove that such villages are ineligible.

The District Court was persuaded that Congress al-

ready accounted for the State’s interests in the Act

when it

excluded from the definition of “public lands” that

could be taken by the villages any “land selections of

the State of Alaska which have been patented or

tentatively approved under section 6(g) of the

Alaska Statehood Act, as amended (72 Stat. 341, 77

Stat. 223), or identified for selection by the State

prior to January 17, 1969,” 43 U.S.C. § 1602 (e)

(Supp. III, 1973). The failure of the State to bring

itself within this statutory provision underscores the

conjectural and attenuated nature of its interest

here. Alaska had ample opportunity to select land

but did not do so, and one does not have standing

merely by appearing in a case for the purpose of

keeping one’s options open an indefinite period in the

future.

405 F. Supp. at 1369.

The provision cited by the District Court protects lands

in which Alaska already had expressed interest; but we

do not infer from it a congressional intention to negate

any interest Alaska might have elsewhere. At the time

of statehood, and even now, the value of much of the land

was not and has not been established. We think Alaska

has been reasonable in exercising its right under the

Statehood Act to wait until 1984 to complete its land

50a

selections.’ As in the case of the federal agencies, our

inquiry is limited to determining whether the Secretary

has violated his regulations in permitting Alaska to take

these apeals as a party aggrieved.

The regulations provide that the BIA decisions are to

be served on the village affected, all villages within the

region, all regional corporations and the State of Alaska.

43 C.F.R. § 2651.2(a) (2), (4), (8). We interpret this

requirement as evidence that the Secretary regarded these

parties as potentially aggrieved if a village were wrong-

fully determined to be eligible or ineligible. We agree

with the District Court that the interest of Alaska in

these two cases is conjectural at best but we emphasize

we are not dealing with Article III considerations here;

rather, the inquiry is whether the Secretary has violated

his own regulations. In light of the broad reading which

the Secretary has given the term “party aggrieved” we

cannot say that permitting Alaska to appeal in the cases

of Solomon and Alexander Creek was a plainly erroneous

interpretation of the regulations.

We hold therefore that all ten of the administrative

appeals taken in these cases were valid and we turn to

the question whether the procedure followed comported

with principles of due process.

°In the Statehood Act, Alaska disclaimed all rights to

lands held by Natives or by the United States in trust for

Natives. 72 Stat. 339 (1958). Through ANCSA Congress

has elected to extinguish ei] aboriginal titles and, in ex-

change therefor, to patent lands to regional corporations in

which all Natives participate and to certain villages in

which some Natives live. The disclaimer in the Statehood

Act clearly bars Alaska from challenging ANCSA itself.

But we think it does not bar Alaska from attempting to

show that a given village does not meet the threshold re-

quirements of ANCSA any more than it bars Alaska from

challenging the title of an Englishman who merely alleges

that he is a Native Alaskan.

an Pee Caer ees

5la

THE ADMINISTRATIVE APPEAL PROCEDURE

The District Court held that the administrative process

used here was improper because the

Secretary, who reserved final decision to himself,

was prevented from making a rational decision on

the records developed because the decisions of both

the administrative law judges and the Ad Hoe Board

were kept in camera and remained undisclosed to the

parties until the Secretary had already reached his

final decision. This process denied the villages the

opportunity to bring to the Secretary’s attention any

exceptions or objections they might have had to the

determinations below.’

° Indeed, it appears that the Secretary did not even

see the proposed findings of fact submitted by the vil-

lages to the administrative law judges.

405 F. Supp. at 1870 | footnote omitted].

The Secretary argues that the administrative decision-

making was institutional. Relying upon the Morgan

cases * the Secretary asserts that he was not required to

circulate to the parties “recommended decisions prepared

by subordinates for approval by the Secretary.” Under

this analysis the ALJ and the Board are mere assistants

who aided the Secretary in making his decision by tender-

ing recommeiidations in the nature of draft decisions.

The institutional process used here, in the Secretary’s

view, met whatever due process requirements there were

by affording all parties an opportunity to present their

cases and confront their opponents before the ALJ.” We

do not agree.

® Morgan v. United States, 298 U.S. 468 (1936); Morgan

v. United States, 304 U.S. 1 (1938); United States v. Mor-

gan, 307 U.S. 183 (1939); United States v. Morgan, 313

U.S. 409 (1941).

* Evidently the submissions of the villages which were re-

ceived were not even forwarded to the Secretary with the

record. See 405 F. Supp. at 1370 n.5.

At the outset we affirm the District Court’s holdings

that the villages have a sufficient property interest to

come within the due process clause. 405 F. Supp. at

1370. Indeed the Secretary concedes as much. The issue

is what process is due under the circumstances. The

Secretary argues that the opportunity to present a case

and to confront opponents before the ALJ was enough.

The difficulty with this position is that it overlooks the

mandate of Congress in ANCSA which declares that “the

settlement should be accomplished . . . with maximum

participation by Natives in decisions affecting their rights

and property.” 43 U.S.C. § 1601(b). We are unable to

reconcile the Secretary’s “institutional” approach with so

clear an expression of Congress’ will.

The only conceivable purpose of the secret review pro-

cedure was to expedite the resolution of the claims. This

is a valid purpose, responsive to Congress’ instruction

that the settlement be accomplished rapidly; nevertheless,

affording the villages an opportunity to see the recom-

mended decisions and to brief exceptions to them would

cause only a slight delay in the proceedings. At the same

time that opportunity would greatly enhance the partici-

pation of the Natives as well as the appearance of fair-

ness so critical to the administrative process.

Determinations of village eligibility need not comply

with the Administrative Procedure Act (APA) require-

ments for adjudications because ANCSA does not require

that they be made “on the record after an opportunity for

an agency hearing.” 5 U.S.C. $554(a); see 48 U.S.C.

§ 1610(b) (2), (3). Nonetheless, we are guided by its

requirements in a case such as this which entails due

process rights but has no controlling statutory procedures.

See Wong Yang Sunq v. McGrath, 339 U.S. 38, 50-51

(1950) ; Riss & Co. v. United States, 341 U.S. 907 (1951),

rev’ per curiam, 96 F. Supp. 452 (W.D. Mo. 1950) (3

judge court). Section 557(c!} of the APA provides that

ae eet

ee eon ns re

parties be given an opportunity to .ubmit proposed find-

ings and conclusions, or exceptions tu decisions before a

recommended, initial, or tentative decision of an agency

is reviewed within the agency. In these cases there were

two intermediate decisions in the administrative review

process, the ALJ’s initial decisions and the Board’s recom-

mended decisions. The villages had an opportunity to sub-

mit, and did submit, proposed findings and conclusions to

the ALJs before the initial decisions were made. The

villages were not, however, permitted to see the ALJs’

decisions nor were they permitted to submit exceptions

before the Board made its recommended decisions. We

believe that ANCSA’s requirement of maximum partici-

pation by the Natives required the Secretary to extend

the full measure of procedural rights suggested by sec-

tion 557(c). Considering the great importance to the

Natives of these potential property rights (the quid pro

quo for the extinguishment of their aboriginal titles), the

congressional requirement of maximum participation by

the Natives, and the minimal cost to administrative ex-

pediency, see Mathews v. Eldredge, 424 U.S. 319, 335

(1976), we hold that on remand the Secretary must per-

mit the parties to take exceptions to the ALJs’ decisions *

and to submit briefs thereon to the Board.

The Supreme Court’s recent decision in Vermont Yan-

kee Nuclear Power Corp. v. NRDC, —— U.S. ——, 46

U.S.L.W. 4301 (Apr. 3, 1978) does not require a different

result. In that case, the Court held that a reviewing court

may not dictate to an agency the methods and procedures

to be followed to develop an adequate record for judicial

review.

Absent constitutional constraints or extremely com-

pelling circumstances ‘‘the administrative agencies

®*The ALJ recommended decisions themselves are not at-

tacked here and are accordingly not disturbed.

“.

‘should be free to fashion their own rules of proce-

dure and to pursue methods of inquiry capable of

permitting them to discharge their multitudinous du-

ties.’” Federal Communications Comm’n v. Schrei-

ber, 381 U.S. 279, 290 (1965), quoting from Federal

Communications Comm’n v. Pottsville Broadcasting

Co., 809 U.S. 134, 143 (1940).

46 U.S.L.W. at 4807. Our holding today does not trench

upon this principle. We hold only that the Secretary’s

secret review process is inconsistent with both constitu-

tional constraints and the mandate of ANCSA that Na-

tives participate as fully as possible in the decisionmaking.

THE REMEDY

The District Court ordered the decisions of the BIA

area director reinstated because hearings conducted by

Congressman Dingell “constituted an impermissible con-

gressional interference with the administrative process”,

405 F. Supp. at 1872, which destroyed the appearance of

administrative impartiality and caused actual prejudice

to the villages, denying them fundamental fairness re-

quired by the Fifth Amendment. See Pillsbury Co. v.

FTC, 354 F.2d 952 (5th Cir. 1966). The court believed

that the effects of the interference lingered making the

usual remedy, remand to the Secretary for a redetermina-

tion, impossible. We disagree.

The hearings in question were called by Congressman

Dingell in June of 1974 at the time the Board and the

Secretary were considering most of these cases. Alaska

Native Claims, Hearings Before the Subcomm. on Fish-

eries and Wildlife Conservation and the Environment of

the Comm. on Merchant Marine and Fisheries, 93d Cong.,

2d Sess. (1975). During the hearings Congressman

Dingell made no secret of his displeasure with some of

the initial BJA eligibility determinations. Nevertheless,

we think the Pillsbury decision is not controlling here be-

cause none of the persons called before the subcommittee

was a decisionmaker in these cases. One possible excep-

tion was Mr. Ken Brown, a close advisor to the Secretary

who briefed him on the cases at the time he decided to

approve the Board’s recommended decisions. However,

even if we assume that the Pillsbury doctrine would

reach advisors to the decisionmaker, Mr. Brown was not

asked to prejudge any of the claims by characterizing

their validity. See Pillsbury Co. v. FTC, supra at 964.

The worst cast that can be put upon the hearings is that

Brown was present when the subcommittee expressed its

belief that certain villages had made fraudulent claims

and that the BIA decisions were in error. This is not

enough.

A more serious matter is a letter that Congressman

Dingell sent to the Secretary two days before he deter-

mined that eight of these villages were ineligible. The

letter requested the Secretary to postpone his decisions

on the cases pending a review and opinion by the Comp-

troller General, because it “appears from the testimony

{at the hearings] that village eligibility and Native en-

rollment requirements of ANCSA have been misinter-

preted in the regulations and that certain villages should

not have been certified as eligible for land selections

under ANCSA.” The letter did not specify any particular

villages, but we think it compromised the appearance of

the Secretary’s impartiality.” D.C. Federation of Civic

Ass’ns v. Volpe, 148 U.S. App. D.C. 207, 222, 459 F.2d

1231, 1246, cert. denied, 405 U.S. 1030 (1972) ; see Pills-

bury Co. v. FTC, supra at 964. Nevertheless, a remand to

the Secretary, rather than a reinstatement of the BIA

decisions, is the proper remedy in this case. Assuming

the worst—that the letter contributed to the Secretary’s

decision in these cases—we cannot say that 31% years

®We of course intimate no view as to the validity of the

Congressman’s criticism.

dba

later, a new Secretary in a new administration is thereby

vendered incapable of giving these cases a fair and dis-

passionate treatment.

RESIDENCE DETERMINATION

One final matter remains to be considered. The villages

challenge the District Court’s conclusion that because the

residence of Natives is not established conclusively by the

roll prepared by the Secretary pursuant to 43 U.S.C.

§ 1604 residence was open to redetermination in the vil-

lage eligibility proceedings. The Secretary argues that

this challenge is barred because no cross-appeal was filed.

We reject this argument, see note 3 supra, but affirm the

District Court’s interpretation of the statute for the rea-

sons stated in its opinion."”” 405 F. Supp. 1373-74.

CONCLUSION

We hold the administrative appeals by the Fish and

Wildlife Service, the Forest Service, and the State of

Alaska were valid. The appeal process itself, however,

should have permitted the parties to take exceptions to

the ALJs’ recommended decisions and to submit briefs

to the Board for its consideration. Therefore, these cases

must be remanded to the District Court for remand to

the Secretary for redetermination of the appeals. The

judgment of the District Court is

Affirmed in part, reversed in part.

'°The District Court also ruled that the Secretary had not

violated his trust responsibilities to the Alaska Natives and

that th. statutory criteria in the Act for “listed” villages

are exclusive. 405 F. Supp. at 1873-74. No appeal has been

taken on either issue and we leave the District Court ruling

undisturbed,

~ Re

ee ee ee eee

57a

BAZELON, Circuit Judge, concurring: I join Judge

Robb’s fine opinion for the court, but wish to highlight

my reasons for concluding that appellants had standing

to seek administrative review of the village eligibility

decisions.

The decisions of this court and others on administra-

tive standing have created not a little uncertainty.’ It is

unclear whether the limitations appertinent to judicial

standing apply in the administrative context. And if

such limitations do not apply, it is unclear what stand-

ards should govern. For the reasons set forth below, I

find no basis for importing judicial standing doctrines

into the administrative area. In my view, administrative

standing should be determined in light of the functions

of an administrative agency, and whether a would-be

participant would contribute to fulfilling those functions.

An examination of the theoretical foundations of ju-

dicial standing reveals no reason to equate judicial and

administrative standing. The Supreme Court has identi-

fied two general types of judicial standing limitations—

constitutional limitations derived from the “case or con-

troversy” requirement of Article III, and prudential

limitations formulated by the Court in its supervisory

capacity over the federal judiciary. See generally, Simon

v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,

37-46 (1976): Warth v. Seldin, 422 U.S. 490, 498-502

(1975). Neither type of limitation is applicable in the

administrative context.

The “case or controversy” requirement of Article III

restricts federal courts to adjudication of disputes in

which a plaintiff has a “personal stake” in the outcome.

’ See text and notes at nn.5-7 infra.

Baker v. Carr, 369 U.S. 186, 204 (1962). This means,

first and most fundamentally, that a plaintiff must allege

“some threatened or actual injury resulting from the

putatively illegal action... .” Linda R.S. v. Richard D.,

410 U.S. 614, 617 (1973). In addition, the Supreme

Court has ruled that a plaintiff must assert an injury

that is likely to be ‘‘redressed by a favorable decision,”

Eastern Kentucky, supra at 38, and an injury that can

fairly “be traced to the challenged action of the defend-

ant, and not injury that results from the independent

action of some third party not before the court.” Id.

Administrative agencies, like federal courts, frequently

exercise adjudicatory or “quasi-judicial” functions. But

administrative tribunals have few if any of the indicia

of the “inferior courts” Congress is authorized to estab-

lish pursuant to Article III.2 Even independent regula-

tory agencies do not share the two attributes of federal

courts explicitly mentioned by the Constitution—secure

compensation and life tenure. Hence, administrative

agencies are not bound by the “case or controversy”

limitation of Article III.* Congress, in its discretion, can

require that any person be admitted to administrative

* See Glidden Co. v. Zdanok, 370 U.S. 530, 552 (1962) (opin-

ion of Harlan, J., joined by Brennan and Stewart, JJ.)

(“{WJhether a tribunal is to be recognized as one created

under Article III depends basically upon whether its establish-

ing legislation complies with the limitations of that article;

whether, in other words, its business is the federal business

there specified and its judges and judgments are allowed the

independence there expressly or impliedly made requisite.’’) ;

Gardner v. FCC, 530 F.2d 1086, 1090 n.i8 (D.C. Cir. 1976)

(“{A]djudicative agencies are really a type of ‘legislative

court, which operates free from the restrictions of Article

||} ay

‘Cf. Palmore v. United States, 411 U.S. 389 (1973) (Arti-

cle I tribunal need not comply with the tenure and salary pro-

visions of Article III.)

ey ee ne eee

59a

proceedings, whether or not that person has alleged “in-

jury in fact” or has satisfied the other constitutional

standing requirements recognized by the Supreme Court.

Prudential rules of judicial standing, like Article III

limitations, are “founded in concern about the proper—

and properly limited—role of courts in a democratic

society.” Warth, supra at 498. The major prudential

limitations recognized by the Supreme Court are the

requirement that the plaintiff assert an interest “ ‘argu-

ably within the zone of interests to be protected or

regulated’ by the statutory framework within which his

claim arises,” EHastern Kentucky, supra at 39 n.19; that

the plaintiff assert more than “a ‘generalized griev.nce’

shared in substantially equal measure by all or a large

class of citizens,” Warth, supra at 499; and that the

plaintiff assert his own rights and interests, rather than

those of third parties. Id.

The function of prudential standing rules, the Court

has stressed, is to “limit the role of courts in resolving

public disputes.” Warth, supra at 498; id. at 500. Pru-

dential limitations serve to define “the proper judicial

role relative to the other major governmental institutions

in the society.” Tax Analysts and Advocates v. Blumen-

thal, 566 F.2d 130, 139 (D.C.Cir 1977). In short, pru-

dential limitations reflect a concern about the limited

authority and competence of the judiciary in setting

general policy.

As such, prudential limitations are no more applicable

to administrative agencies than Article III limitations.

The authority of federal courts to set general policy is

restricted by Article III, which empowers courts to hear

only “cases” and “controversies.” Administrative agen-

cies, on the other hand, derive their powers from Con-

gress, and thus indirectly from Article I. Although this

60a

delegation of power is subject to limitations,* an agency

has unquestioned authority to set general policies affect-

ing large numbers of people when it acts within the

scope of its statutory mandate.

The competence of federal courts to formulate general

policy is also severely limited by the method in which

they reach decisions. Courts are confined to the resolution

of particular disputes in an adversary setting. Admin-

istrative agencies, however, have unique resources for

establishing broad, prospective policies. Unlike courts,

administrative agencies can devote uninterrupted atten-

tion to relatively narrow problem areas, and can call

upon technical staff assistance in formulating solutions.

Unlike courts, they are not limited to the adjudicatory

format, but have the flexibility to proceed by adjudica-

tion, legislative hearings, rulemaking, investigation or

in other ways. And unlike courts, agencies do not have to

wait for a plaintiff to file suit; they have the power to

institute an investigation or an action on their own

initiative.

The decisions of this circuit, as appellants acknowledge,

are “not uniform” on the subject of whether judicial

standing principles should, be applied in administrative

proceedings. App. Br. at 14 n.4. Admittedly, a number

of decisions, including one by the author of this opinion,

have applied judicial standing concepts in determining

whether a party should have standing before an agency.°

' National Cable Television Ass’n v. United States, 415 U.S.

336, 342 (1974).

* Martin-Trigona v. Federal Reserve Bd., 509 F.2d 368, 366

(D.C. Cir. 1975) (Bazelon, C.J.); see also American Civil

Liberties Union v. FCC, 523 F.2d 1344, 1847 (9th Cir. 1975);

National Welfare Rights Org. v. Finch, 429 F.2d 725, 732-33

(D.C.Cir. 1970); Office of Communication of United Church

of Christ v. FCC, 359 F.2d 994, 1000 n.8 (D.C.Cir. 1966) and

eases cited. For cases recognizing a distinction between judi-

eee ee eS ee See

ee a ee

6la

At the same time, however, nearly all courts that have

considered the question have recognized at least a theo-

retical distinction between judicial and administrative

standing.’ Moreover, most decisions that apply judicial

standing concepts stand only for the proposition that if

a party would have standing to seek judicial review of

administrative action, he should be allowed to appear

before the agency, if only to assure the proper develop-

ment of the record. See, e.g., National Welfare Rights

Organization v. Finch, 429 F.2d 725, 786-37 (D.C.Cir.

cial and administrative standing see, e.y., Pittsburgh & W.Vir.

Ry. Co. v. United States, 281 U.S. 378 (1930); Alexander

Sprunt & Son, Inc. v. United States, 281 U.S. 249 (1930);

yardner v. FCC, 530 F.2d 1086, 1090 (D.C.Cir. 1976) ; Cheme-

huevi Tribe of Indians v. FPC, 489 F.2d 1207, 1212 n.12 (D.C.

Cir. 1973); United States v. Board of Sch. Com’rs. of In-

dianapolis, Ind., 466 F.2d 578, 577 (7th Cir. 1972); National

Motor Freight Traffic Ass’n v. United States, 205 F.Supp.

529, 593-94 (D.D.C.), aff'd, 371 U.S. 223 (1962), reh. denied

and opinion clarified, 8372 U.S. 246 (1963). Commentators

have generally recognized that there are practical and theo-

retical differences between administrative and judicial stand-

ing. See 3 K. DAVIS, ADMINISTRATIVE LAW TREATISE 239-43

(1958); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE AC-

TION, 524 (1965); Shapiro, Some Thoughts on Intervention

Before Courts, Agencies and Arbitrators, 81 HARV. L. REV. 721,

726, 767 (1968).

° As we stated in Gardner v. FCC, 530 F.2d 1086, 1090

(D.C. Cir. 1976):

Within their legislative mandates, agencies are free to

hear actions brought by parties who might be without

party standing if the same issues happened to be before a

federal court. The agencies’ responsibility for implemen-

tation of statutory purposes justifies a wider discretion,

in determining what actions to entertain, than is allowed

to the courts by either the constitution of the common law.

See also Martin-Trigona v. Federal Reserve Bd., 509 F.2d 363,

366 n. 10 (D.C. Cir. 1975); National Welfare Rights Org. v.

Finch, 429 F.2d 725, 782 (D.C. Cir. 1970).

62a

1970).’ As such, these cases do not establish that ad-

ministrative standing would necessarily be improper if

a party would not have standing to obtain judicial review.

The fact that judicial and administrative standing are

conceptually distinct does not, of course, mean that Con-

gress could not require an admiristrative agency to apply

judicial standing concepts in determining administrative

standing. Nor does it mean that courts and agencies

should never refer to judicial standing decisions, where

helpful, by way of analogy. But absent a specific justi-

fication for invoking judicial standing decisions, | see no

basis for interjecting the complex and restrictive law of

judicial standing into the administrative process.

II.

What should be the standards for determining stand-

ing to appear before an agency? Generalizations are

hazardous, for administrative standing questions arise

in contexts as diverse as the methods and objectives of

the agencies themselves. Nevertheless, the present case

suggests some principles that may be broadly applicable.

The starting point fn determining administrative

standing should be the language of the statutes and

’ See also American Communications Association v. United

States, 298 F.2d 648, 650-51 (2d Cir. 1962). Martin-Trigona

v. Federal Reserve Bd., 509 F.2d 363 (D.C.Cir. 1975) is excep-

tional, in that we there sustained a denial of a petitioner’s re-

quest for a hearing, relying in part on judicial standing con-

cepts. The decision was a limited one, however, and we made

it clear that “the different policies applicable to standing be-

fore this court and before an administrative agency might in a

different context require different concepts of standing.” Id.

at 366 n.10. The denial of administrative standing would have

been proper in any event under a functional analysis, see Part

II infra, since the petitioner refused to state the nature of his

interest. Id. at 367.

;

PS 6 ee germ ee Hw te ee -

Se Sm Bee

—

63a

regulations that provide for an administrative hearing,

appeal or intervention. To be sure, these sources fre-

quently provide no criteria for determining standing, or

speak in vague terms of persons “aggrieved,” “affected,”

or having an “interest’”—in which case they are of little

assistance. On occasion, however, the applicable statutes

and regulations do supply specific criteria for determin-

ing standing, in which case they should of course be con-

trolling.

An example of a regulation supplying relatively pre-

cise standards is 43 C.F.R. § 4.902 (1976), part of the

new regulations on ANCSA hearing procedures promul-

gated after the hearings in the instant cases were com-

pleted." This section provides:

Any party who claims a property interest in land

affected by a determination from which an appeal to

the Alaska Native Claims Appeai Board is allowed,

or an agency of the Federal Government, may ap-

peal as provided in this subpert. However, a re-

gional corporation shall have the right of appeal in

any case involving land selections.

This regulation quite clearly establishes three classes of

persons who have standing: those asserting a property

interest in land, federal agencies, and regional corpora-

tions in land selection cases. It thus provides fairly ob-

jective criteria that can be applied without recourse to

a more refined analysis.”

* See 40 Fed. Reg. 33172 et seq. (1975), codified as 43 C.F.R.

§ 4.900 et seq. (1976).

® Generally, an appeals court must apply the law—including

regulations—in effect at the time it renders its decision, “un-

less doing so would result in manifest injustice or there is

statutory direction or legislative history to the contrary.”

Bradley v. School Bd. of the City of Richmond, 416 U.S. 696,

711 (1974); Thorpe v. Housing Authority of the City of Dur-

ham, 893 U.S. 268, 281-82 (1969). Since the court concludes

64a

More often, however, the statutes and regulations do

not provide specific guidelines for determining admin-

istrative standing. The regulation actually applied in

these cases, for example, refers only to “[a]ny party

aggrieved... .” 43 C.F.R. § 4.700 (1976). Such a gen-

eral and indefinite provision suggests no concrete stand-

ards for determining who should have standing to appeal.

In these circumstances, I believe a functional analysis of

administrative standing is appropriate. Such an analysis

would examine the nature of the asserted interest, the

relationship of this interest to the functions of the

agency, and whether an award of standing would con-

tribute to the attainment of these functions.

There is nothing revolutionary about such an approach

to administrative standing. Several commentators have

suggested adoption of a functional standard.” Moreover,

that the federal agencies and the State of Alaksa had admin-

istrative standing under 43 C.F.R. § 4.700, maj. op. at 10, 13,

it is unnecessary to consider whether 43 C.F.R. § 4.902 should

be applied retrospectively to this case. See Nixon v. Sampson,

Nos. 75-2194 & 2195 (D.C.Cir., March 22, 1978).

Any party aggrieved by an adjudicatory action or deci-

sion of a Department official relating to rights or privi-

leges based upon law in any case or proceeding in which

Departmental regulations allow a right of appeal to the

head of the Department from such action or decision,

should direct his appeal to the Director, Office of Hearings

and Appeals, if the case is not one which lies within the

appellate review jurisdiction of an established Appeals

Board and is not excepted from the review authority dele-

gated to the Director. No appeal will lie when the action

of the Departmental official was based solely upon admin-

istrative or discretionary authority of such official.

43 C.F.R. § 4.700 (1976).

't See Crampton, The Why, Where and How of Broadened

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65a

the elements of a functional approach can be discerned

in our prior decisions—most prominently, in fact, in the

very cases cited by appellees for the proposition that

judicial standing limitations should govern.

The seminal decision on administrative standing point-

ing toward a functional approach is Office of Communi-

cation of United Church of Christ v. FCC, 359 F.2d 994

(D.C.Cir. 1966). We held there that standing to inter-

vene in a Federal Communications Commission license

renewal proceeding is not limited to those alleging eco-

nomic injury or electrical interference, but extends also

to responsible representatives of the listening public. We

ruled that “the concept of standing is a practical and

functional one designed to insure that only those with a

genuine and legitimate interest can participate in a

proceeding.” Jd. at 1002. Given this standard, we could

“see no reason to exclude those with such an obvious and

acute concern as the listening audience.” Jd. Moreover,

we found that the Commission had insufficient resources

to fulfill its obligation to assure balanced broadcast pro-

gramming. Representatives of the listening public, act-

ing as “private attorneys general” enforcing the Com-

mission’s Fairness Doctrine, would therefore provide val-

uable assistance. Jd. at 1003-04. We specifically re-

jected the Commission’s argument that a broad rule of

standing would overwhelm the Commission with “hosts”

of protestors, and found that the Commission had au-

thority to adopt rules to screen out spurious petitions

and “limit public intervention to spokesmen who can

be helpful.” Jd. at 1005.

tive Proceedings, 81 YALE L. J. 359 (1972); Jacks, The Public

ond Peaceful Atom: Participation in AEC Regulatory Proceed-

ings, 52 Tex L. Rev. 466 (1974); Shapiro, supra note 5; cf.

Scott, Standing in the Supreme Court—A Functional Analysis,

86 Harv. L. REV. 645 (1973).

Public Participation in the Administrative Process, 60 GEO.

L.J. 525 (1972); Gellhorn, Public Participation in Administra-

66a

In National Welfare Rights Organization v, Finch, 429

F.2d 725 (D.C.Cir. 1970), we expanded the rationale of

United Church of Christ, making the functional ele-

ments of the analysis even mo.’e explicit. We held that

organizations of welfare recipients were entitled to take

part in hearings conducted by the Department of Health,

Education and Welfare to determine if state welfare

programs were in conformance with federal standards.

A functional-type analysis of the organizations’ standing

served as an alternative ground for the decision:

As intervenors in conformity hearings appellants may

serve the public interest in the maintenance of an

efficient state-federal cooperative welfare system. Ap-

pellants’ role would be analogous to that of persons

accorded standing, not for the protection of their

own private interests, but because they are especially

well suited to represent an element of the public in-

terest. Thus they serve as “private attorneys gen-

eral.”

Id. at 738. As in United Church of Christ, supra, we

noted that the “threat of hundreds of intervenors” was

more apparent than real. The appropriate way to limit

the possibility of abuse was “by controlling the proceed-

ing so that all participants are required to adhere to the

issues and to refrain from introducing cumulative or

irrelevant evidence,” not by “excluding parties who have

a right to participate.” Id., quoting Virginia Petroleum

Jobbers Ass’n v. FPC, 265 F.2d 364 n.1 (D.C.Cir.

1959) .*°

These authorities suggest a functional analysis com-

posed of the following factors:

(1) The nature of the interest asserted by the poten-

tial participant.

*? See also Marine Space Enclosures, Inc. v. F.M.C., 420 F.2d

577, 590-92 (D.C.Cir. 1969).

67a

(2) The relevance of this interest to the goals and

purposes of the agency.

(3) The qualifications of the potential participant to

represent this interest.

(4) Whether other persons could be expected to rep-

resent adequately this interest.

(5) Whether special considerations indicate that an

award of standing would not be in the public

interest.

Such a standard would have to be flexible, of course, and

the appropriate variables might well vary from one

context to another.** The important point is that ad-

ministrative standing should be tailored to the functions

of the agency, not to arcane doctrine from another area

of the law.

Under such an approach, there can be little doubt that

the Secretary acted properly in finding that the United

States Fish and Wildlife Service, the National Forest

Service, and the State of Alaska had standing to appeal

the eligibility determinations of the BIA area director.

In fact, although the standing discussion of the Alaska

Native Claims Appeals Board, acting for the Secretary,

‘One important distinction might be between a would-be

participant seeking to institute a new administrative hearing

or appeal, and one merely seeking to intervene in an on-going

proceeding. An award of standing in the former circumstances

is clearly more burdensome than in the latter. See 3 K. DAvis,

ADMINISTRATIVE LAW TREATISE 241 (1958). Since interven-

tion generally has no effect on what decisions are reached, or

when they are rendered, if might be appropriate in considering

requests for intervention merely to focus on (1) whether the

potential intervenor represents a point of view that would

assist in illuminating the issues; (2) whether he is qualified

to represent this point of view; (3) whether other parties to

the proceeding could be expected to represent this perspective;

and (4) whether there are special considerations that indicate

intervention would not be in the public interest.

68a

relied in part on a consideration of judicial standing

concepts, it also included an elementary functional

analysis,

The federal agencies and the State of Alaska main-

tained that if certain villages were eligible to take public

lands, their own flexibility in selecting such lands would

be impaired. The Board found that this interest estab-

lished “a nexus with the village sufficient to assure the

presentation of factual evidence relevant to the village’s

eligibility.” State of Alaska v. Village of Solomon, Final

Decision of Board and Secretary (Sept. 16, 1974) at 4.

Thus, the Board found that the asserted interest was

relevant to one of the principal purposes of the Act—

determination of eligibility “with the fullest possible

command of the relevant facts.” /d. the board concluded

that it was proper to recognize appellants’ standing,

“particularly when the Secretary’s factfinding obligation

would be thwarted by a more restrictive approach.” Id.

No suggestion was made by the Board that appellants

were not qualified to represent the interest they asserted,

that affording them an appeal would result in duplicative

presentations, or that there were any considerations of

public policy militating against recognizing their stand-

ing."

‘*The Board's functional-type analysis is also found, vir-

tually verbatim, in U.S. Fish & Wildlife Service v. Village of

Bells Flats, Final Decision of Board and Secretary (Sept. 20,

1974) at 2-3; and U.S. Forest Service v. Anton Larsen, Inc.,

Final

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