# Petition — Koniag, Inc. v. Andrus

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1781%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 1052

## Text

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,
v.

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. late bie

13

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).

14

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

15

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).

16

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
J

17

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

18

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 ohare

ss

73a

requirements of this chapter, and which the Secretary
determines was, on the 1970 census enumeration date
(as shown by the census or other evidence satisfactory
to the Secretary, who shall make findings of fact in
each instance), composed of twenty-five or more Na-
tives.

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

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

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

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

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

Villages that were not listed might also be eligible for
benefits under the Act. Section 11(b)(3), 43 U.S.C. § 1610
(b)(3) (Supp. III, 1973), provides:

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ter and lands shall be withdrawn pursuant to this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

74a

(A) twenty-five or more Natives were residents of
an established village on the 1970 census enumera-
tion date as shown by the census or other evidence
satistactory to the Secretary, who shail make find-
ings of fact in each instance; and

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

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

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

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

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

(2) The village shall have had on April 1, 1970, an
identifiable physical location evidenced by occupancy
consistent with the Natives’ own cultural patterns and
life style and at least 13 persons who enrolled thereto
must have used the village during 1970 as a place where

75a

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 speci-
fied in this subsection by reason of having been tem-
porarily unoccupied in 1970 because of an act of God
or government authority occurring within the preced-
ing 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 the following attributes as of April 1,
1970:

(i) Population over 600.

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

(iii) Five or more business establishments which
provide goods or services such as transient accom-
modations or eating establishments, specialty re-
tail 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.

The Secretary’s regulations also required that the Ju-
neau, Alaska, Area Office of the Bureau of Indian Affairs
review and make determinations not later than December

76a

19, 1973, on all applicant Native village corporations’ eli-
gibility for benefits as Native villages under the Act. Prior

to the determinations, the Area Director was required to

publish proposed decisions, 43 C.F.R. §§ 2651.2(a)(1), (2).
Those decisions became final unless protested within 30
days of their date of application by ‘‘any interested party,’’
43 C.F.R. § 2651.2(a)(3). Upon receipt of a protest by an
interested party, the Area Director was required to examine
and evaluate it and within 30 days render a final decision,
43 C.FLR. § 2651.2(a)(4). These Area Director decisions
automatically became final unless an ‘‘aggrieved party’’
appealed to the Secretary of the Interior by filing a notice
with the Ad Hoe Board? within 30 days of publication (43
C.F.R. § 2651.2(a)(5). The Secretary reserved to himself
personally the ultimate decision in each case (43 C.F.R.
§ 2651.2(a)(5)).

Not all cases were appealed. If an appeal was taken a
record on appeal was developed in the following fashion.
The Board assigned each appeal to a Department of the
Interior administrative law judge for a full de novo adver-
sary hearing on a record. At the hearings the ‘‘aggrieved’’
parties were represented mainly by an attorney from the
Solicitor’s Office of the Department of the Interior. Motions
challenging standing were heard and evidence taken. The
administrative law judges received proposed findings of
fact and heard argument from the parties.

Thereafter, over the protest of plaintiffs, all subsequent
proceedings were in camera. The decisions of the adminis-
trative law judges were forwarded in camera to the Board
without being served on the villages. The Board then made
formal decisions in each case and submitted these to the
Secretary in camera without service on the villages. Fol-
lowing this, Secretary consulted members of his staff and

* Name later changed to Alaska Native Claims Appeal Board,
hereinafter ANCAB or the Board.

77a

decided to accept the Board’s decisions in each case. It
was only at this stage that the villages learned of the result.

The entire process resulted in the following determina-
tions by the Secretary. Of the 215 villages listed in section
11(b)(1) and section 16(a) of the Alaska Native Claims
Settlement Act, 191 were determined to be eligible to re-
ceive land benefits under the Act, and 17 were determined
to be ineligible. Thirty-one villages not listed in the Act
applied for a determination of eligibility to receive land
benefits, and 12 of these were determined to be eligible,
while 19 were determined to be ineligible. Thus a total of
203 villages have been determined to be eligible for benefits
under the Act; 191 listed and 12 unlisted.

In this consolidated case, three of the plaintiffs (Uyak,
Salamatof and Pauloff Harbor) were ‘‘listed’’ villages,
and village corporations were established to claim land and
benefits under the Act. The Area Director confirmed that
they were in fact qualified. Upon appeal by the Fish and
Wildlife Service, these plaintiffs ultimately were deter-
mined by the Secretary not to meet the statutory standards
for eligibility as Native villages.

The remaining eight plaintiffs were not listed as villages
in section 11 of the Act. They each applied to the Area
Director for certification as eligible villages pursuant to
section 11(b)(3). The Area Director found them qualified.
Upon the filing of protests by the Fish and Wildlife Serv-
ice, the National Forest Service, or the State of Alaska, it
was finally determined that they were not in fact eligible
as Native villages because they did not meet the conditions
specified in that section of the Act and the implementing
regulations.

Accordingly, each of these eleven cases was brought to
obtain judicial review of those adverse decisions by the
Secretary.

The plaintiffs contend that Fish and Wildlife, Forest
Service and the State of Alaska were not in fact parties

78a

aggrieved and thus lacked standing to appeal, so that the
proceedings before the administrative law judges in each
instance and the Board and the Secretary are consequently
of no force and effect. Alternatively, they urge that the
proceedings on appeal were defective in a number of re-
spects and constitute a denial of due process. In this respect
they object, among other things, to the in camera treatment
of the recommended decisions of the administrative law
judges and the Board, and also urge that the proceedings
were tainted because of congressional interference. Further
objections are raised concerning the legality of the Secre-
tary’s regulations in some instances and the asserted failure
of the Secretary properly to carry out his decisional respon-
sibilities. All of these matters will be considered herein.

1. Standing.

Common to all cases is the threshold question whether
the State of Alaska, the United States Fish and Wildlife
Service and the National Forest Service had standing as
aggrieved parties to appeal determinations made by the
Alaska Bureau of Indian Affairs Area Director that each
of the plaintiff villages was qualified for benefits under the
Act. See 43 C.F.R. §§ 4.7000, 2651.2(a)(5). The Fish and
Wildlife Service and the Forest Service raise a common
question of standing. Basieally, the Services argue that
since Congress did not intend for an unqualified village to
be awarded land from a wildlife refuge or a national forest
they have standing as the agencies responsible for these
refuges and forests to challenge the eligibility of a village
which either will be required or may choose to take some
land from their respective domains.

It is true, as plaintiffs argue, that Congress put careful
safeguards in the statute designed to minimize the possible
adverse effects of such takings. The Alaska Native Claims
Settlement Act provides very specifically for protection of
the interests of the Fish and Wildlife Service, the Forest
Service and the State of Alaska in deference to the poten-

79a

tial conflict between village claims and the national wild-
life refuge system or the national forests.

Plaintiffs are at some pains to point out the scope and
nature of these protections. With respect to the Fish and
Wildlife Service, the Act first of all limits the amount of
refuge lands which can be selected by a Native village.
Alaska Native Claims Settlement Act, § 12(a)(1), 43 U.S.C.
§ 1611(a)(1) (Supp. III, 1973). It provides for expansion
of the boundaries of a national wildlife refuge to replace
acreage selected by Native villages out of the refuge.
ANCOSA, §§ 11(a) (3) (A), 17(a) (7) (1), and 22(e), 43 U.S.C.
§§ 1610(a) (3) (A), 1616(a) (7) (1), 1621(e) (Supp. IIT, 1973).
It requires that if land from a refuge is patented to a
Native village, and the land is ever sold, provision must be
made in the patent for a right of first refusal in the United
States to buy back those lands. ANCSA, § 22(g), 43 U.S.C.
§ 1621(2) (Supp. ITI, 1973). It further provides that every
patent issued which transfers refuge lands to Natives must
contain a provision that such lands ‘‘. . . remain subject
to the laws and regulations governing use and development
of such Refuge.’? ANCSA, § 22(g¢), 43 U.S.C. § 1621(g)
(Supp. ITI, 1973).

With respect to Forest Service, the Act similarly limits
the amount of acreage in a national forest which any Native
village may select. ANCSA, §12(a)(1), 43 U.S.C. §11(a)
(1) (Supp. TIT, 1973). It also provides for ‘‘. . . orderly,
planned and [environmentally] compatible . . .’’ planning
of lands received by the Natives from national forests
(ANCSA, § 17(a)(7) (1), 43 U.S.C. § 1616(a) (7) (1) (Supp.
TIT, 1973)), and provides that national forest lands selected
by a Native village shall be subject to Forest Service man-
agement prior to conveyance (ANCSA, § 22(i), 43 U.S.C.
§ 1621(i) (Supp. IIT, 1973)). Finally, the statute requires
that patents of national forest lands which are issued to
Native villages under the Act shall contain extremely re-
strictive conditions on the use of said lands by the Natives,
including a provision that ‘‘. . . such lands are [to be]

80a

managed under the principle of sustained yield and under
management practices for protection and enhancement of
environmental quality no less stringent than such manage-
ment practices on adjacent national forest lands for a
period of twelve years.’’ ANCSA, § 22(k), 43 U.S.C. § 1621
(k) (Supp. LIL, 1973).

Nonetheless, the Government’s point is well taken that
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 provide standing. Under
the statutory scheme, many of .the relevant facts cannot
yet be determined, for example, which land will be selected
by the villages, which land will be added to the National
Wildlife Refuge System to replace that chosen by the vil-
lages (43 U.S.C. § 1621(e) (Supp. IIT, 1973)), or how the
villages will in fact use and manage the land (cf. 43 U.S.C.
§ 1621(¢) (Supp. III, 1973)). The Government will not be
held to an impossible burden of proof. That these and
other facts are not now known with certainty does not
render the Government’s interest too remote or conjec-
tural. Moreover, the Forest Service and the Fish and Wild-
life Service have broad mandates to protect our forests
and wildlife, e. g., 16 U.S.C. §§ 551, 553; 16 U.S.C. § 742a
et seq. The Court is particularly reluctant to deny stand-
ing to those most likely in fact to have a legitimate concern
ahout these lands and to come forward to protect the public
interest, especially where the effect of finding standing is
simply to allow adversary proceedings to be held which,
if properly conducted, could contribute to fair and informed
decision making. Accordingly, the Court finds that the
Forest Service and the Fish and Wildlife Service, rather
than merely engaging in ‘‘an ingenious academic exercise
in the eonceivable,’? United States v. SCRAP, 412 US.
669, 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973), have
a sufficiently direct stake in the outcome to establish their
standing to appeal as ‘‘parties aggrieved.’’ See United

8la

States v. SCRAP, supra; Sierra Club v. Morton, 405 US.
727, 92 8.Ct. 1361, 31 L.Md.20 636 (1972).

However, the conclusion that these governmental entities
had standing to appeal is not applicable in the cases of
Anton Larsen Bay and Bells Flats, and the Court finds
that in these two cases standing did not exist.’ Each of
these two villages had made extensive good-faith commit-
ments not to take land from a wildlife refuge or national
forest. Even the most theoretical harm was removed by
these commitments, and the Court finds that it was only
because of improper congressional interference (see infra)
that the Fish and Wildlife Service appealed in these in-
stances.

Two other plaintiff villages, Solomon and Alexander
Creck, were challenged only by the State of Alaska. Alaska
did not have standing. The State’s only interest was the
speculative possibility that at some later time for some
undisclosed reason it might, under the Alaska Statehood
Aci, seek to have land patented to it that would be claimed
by these villages. Congress was not unaware of this issue,
for 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.

* Moreover, in the case of Pauloff Harbor, there has arisen a
factual dispute as to whether this village, if eligible, would be
entitled to take land from a wildlife refuge. Since this cannot be
resolved on cross-motions for summary judgment, the Court makes
no determination concerning the standing of the Fish and Wild-

life Service to appeal the Area Director’s decision on Pauloff
Harbor.

82a

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.

Thus, in four of the cases, the appeals were not brought
by a proper party and hence were unauthorized and in-
valid. Accordingly, the final decision of the Bureau of In-
dian Affairs Area Director in the cases of Anton Larsen
Bay, Bells Flats, Solomon and Alexander Creek must be
reinstated.

Il. The Fairness and Integrity of the Administrative
Process.

In the other seven cases the Court must now consider
the plaintiffs’ various challenges to the basic fairness and
integrity of the appellate administrative proceedings. Two
issues are of major concern, First, it is claimed that the
Seeretary, 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 Hoc Board were kept in camera
and remained undisclosed to the parties until the Secretary
had already reached his final decision. This process @onied
the villages the opportunity to bring to the Secretary’s
attention any exceptions or objections they might have had
to the determinations below.’ Significantly, although it is
not necessary to show the prejudice in each instance, some
of the cases were decided adversely to the villages by the
Board and the Secretary on grounds that had never been
raised before the administrative law judges and of which

‘It is argued that the Secretary performed a purely ministerial
act or residual function but this is not correct. He is bound by his
own regulations and the decision was his and his alone.

* Indeed, it appears that the Secretary did not even see the pro-
posed findings of fact submitted by the villages to the administra-
tive law judges.

83a

the parties were unaware until the Secretary announced
the final result,

The Government argues that there are no legal con-
straints on the Secretary as to the nature or format of
the administrative proceedings. The Court finds this posi-
tion to be without merit. First, plaintiffs herein had a sta-
tutory entitlement under the Act that could not be adversely
affected without due process of law. The legislative criteria
for village eligibility were clear, specific and objective, and
any and all qualified villages would be able to receive the
designated benefits. Moreover, listed villages were pre-
sumptively eligible for benefits, and the unlisted villages
in the instant proceeding assumed a comparable status
once the Area Director had found them to be qualified. See
Garfield v. Goldsby, 211 U.S. 249, 29 S.Ct. 62, 53 L.Ed. 168
(1908). Finally, this is not a situation in which benefits
are provided through government largess. Rather, the
quid pro quo to the Government under the Act was the
extinguishment of all aboriginal land claims, and the vil-
lages were entitled to be heard on the inseparable issues
of the abatement of their land titles and the compensation
therefor. Cf. Cameron v. United States, 252 U.S. 450, 460-
61, 40 S.Ct. 410, 64 L.Ed. 659 (1920); United States v.
Consolidated Mines & Smelting Co., Ltd., 455 F.2d 482, 441
(9th Cir. 1971); Adams v, Witmer, 271 F.2d 29, 32-33 (9th
Cir. 1958). Under these circumstances, the Court concludes
that plaintiffs had a sufficient property interest to come
within the due process clause.

Supporting plaintiffs’ right to due process is section
2(b) of the Settlement Act, 43 U.S.C. §1601(b) (Supp.
III, 1973), which declares that ‘‘the settlement should be
accomplished . . with maximum participation by Natives
in decisions affecting their rights and property.’’ In light
of this congressional directive, the Secretary was well
advised to make provision in the regulations for adversary
proceedings before an administrative law judge. However,

Sta

the adversarial nature of the process at the initial stage
could not be disregarded or forgotten at later stages. Once
the Seeretary chose to establish a multi-tiered administra-
tive process and elected to reserve to himself the personal
responsibility to make the ultimate decision, he was obli-
gated to provide a consistent structure that did not frus-
trate basic notions of fairness, impartiality and informed
and rational decision making. By unnecessarily foreclosing
to himself knowledge of the Natives’ contentions as to the
underlying issues, the Secretary has deviated from this
obligation.

The Government next urges that this defect was harmless
error. Whether judged under the Administrative Proce-
dure Act® or the more flexible due process concepts of
fundamental fairness and a meaningful opportunity to
be heard, the Government’s contention must be rejected. It
is absolutely clear on this record that the in camera proce-
dures were inherently unfair and did not comport with
the minimum requisite standards.

Closely related to this aspect is the pervasive influence
of the so-called Dingell hearings. Honorable John D. Din-
gell, Chairman of the House Subcommittee on Fisheries
and Wildlife Conservation and the Environment of the
Ifouse Committee on Merchant Marine and Fisheries, held
so-called “oversight” hearings relating to the adminis-

®“Sec 5 U.S.C. §557e) (2970); Riss & Co. v. United States,
841 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345 (1951) (per curiam),
rev’g 96 F.Supp. 452 (W.D.Mo. 1950) (three-judge court) ; Wong
Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616
1950), order modified, 339 U.S. 908, 70 S.Ct. 564, 94 L.Ed. 1336
(1950); Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301
U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); Western Union
Division v. United States, 87 F. Supp. 324, 334 (D.D.C.) (three-
judge court), aff’d per curiam, 338 U.S. 864, 70 S.Ct. 148, 94
L.Ed. 530 (1949); Muncie Broadcasting Corp., 15 Ad.L. 329
(F.C.C. 1964). Compare Sofield Transfer Co., 115 M.C.C, 280
(1972).

85a

tration of the Alaska Native Claims Settlement Act on
June 4, 5 and 12, 1974. A transcript of some 130 pages
is of record. Numerous witnesses appeared representing
different bureaus and sections of the Department of the
Interior, including the Bureau of Indian Affairs and the
Fish and Wildlife Service, and representatives of the
Forest Service of the Agriculture Department. Of particu-
lar significance is the fact that among the witnesses was
Kenneth Brown, who served as legislative counsel and
chairman of the Alaska Task Force Working Committee
of the Department of the Interior and was one of the
Secretary’s two principal advisors who reviewed the cases
personally with him at the time he made his decision in
the plaintiff’s cases. The hearings took place during the time
that the validity of certain claims being advanced by the
plaintiffs was being litigated before the Secretary and
followed upon earlier correspondence which the Congess-
men had addressed to various subordinates of the Secre-
tury. The stated purpose of the hearings was to present
a forum for discussing the implementation of the Act
but in fact 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
re-examined, travel vouchers and other information were
sought to probe the adequacy of the investigations made,
all papers in the pending proceedings were demanded, the
accuracy of data and procedures followed was questioned,
and constantly the Committee interjected itself into aspects
of the decision-making process. While representatives of
Interior indicated the were very concerned about preju-
dice to the quasijudicial administrative process, and the
chair on several occasions denied that it was his purpose
to pressure the agencies involved, Representative Dingell
stated that he was obliged to confess that he had doubts
as to whether the law was being properly carried out. On
key issues now in dispute before the Court, representatives

86a

of the Government were obliged to take positions as to the
interpretation of the Act. A strenuous effort was made by
the chairman to encourage protest and appeals, coupled
with comments indicating his clear impression that all that
could be done was not being done and that some of the re-
sults being reached were contrary to congressional intent.
It was following this experience that settlements arranged
with two of the plaintiffs, Anton Larsen Bay and Bells
Flats, were abandoned by the Department of the Interior
because of the hearings. It should also be noted again that
when the Secretary reached the crucial point of making his
personal decision on the merits of cases that were investi-
gated and critized by the Committee he had as one of his
two immediate personal advisors Mr. Brown, who had been
subjected to the intervention and subtle harassment of the
Legislative Branch.

The leading decision on the issue of congressional inter-
ference with a quasijudicial administrative proceeding is
Pillsbury Co. v. Federal Trade Commission, 354 F.2d 952
(5th Cir. 1966). The Pillsbury doctrine has been approved
in this jurisdiction. D. C. Federation of Civic Associations
v. Volpe, 148 U.S. App.D.C. 207, 459 F.2d 1231, 1246-47
(1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.
2d 489 (1972), subsequent appeal, 520 F.2d 451 (D.C.Cir.
1975); see also Jarrott v. Scrivener, 225 F.Supp. 827 (D.
D.C. 1964, and cases cited therein.

The Dingell hearings gonstituted an impermissible con-
gressional interference with the administrative process.
This situation presents a disturbing conflict between the
Congress and the Executive Branch, and it is the responsi-
bility of the Judiciary in this instance to prevent an im-
permissible intrusion by one branch into the domain of the
other. It is no less the responsibility of the Court to protect
the procedural due process rights of litigants and “to pre-
serve the integrity of the judicial aspect of the adminis-
trative process.” 354 F.2d at 964. It cannot be gainsaid

Rett. etl ot. eae

On Ae te tut hie

eect SOI PIED BIN a

87a

that the “appearance of impartiality—the sine qua non of
American judicial justice—” was sacrified in this instance.
Id. “{P|rivate litigants [have a right] to a fair trial and,
equally important, [a] right to the appearance of impar-
tiality, which cannot be maintained unless those who exer-
cise the judicial function are free from powerful external
influences,” id. The appearance of justice was breached
and while the complaining party is not required to shoulder
the virtually impossible burden of proving whether and in
what way the outcome before the agency was actually in-
fluenced by the congressional intrusion, the evidence be-
fore the Court indicates that the Dingell hearings indeed
had a direct and demonstrable effect at least on the cases
of Anton Larsen Bay and Bells Flats.

Because of these two factors, the appellate proceedings
in all eleven cases must be invalidated and set aside. In
four cases, the decision of the Bureau of Indian Affairs
Area Director has already been reinstated, see supra. In
the remaining seven cases the Court must now determine
whether the appropriate course is to remand to the De-
partment of the Interior for further proceedings or to
accept the Area Director’s decision as the last authoritative
ruling that was untainted by these two defects. 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 can be presumed to have
been dissipated. For this Court to allow further admin-
istrative proceedings to be held when the agency has failed
to demonstrate the absence of any lingering effect would
be to countenance a continuing violation of due process.
Apart from this, Congress has been insistent, and prop-
erly 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 inherent in a remand
which could only proceed to proper conclusion when there
was assurance that the congressional taint had been re-

88a

moved. Moreover, this is not a question of, in effect, re-
moving the administrative body altogether from decision
making, since there is an untainted decision by the Secre-
tary’s delegate, the Bureau of Indian Affairs Area Di-
rector, which can be reinstated. Compare Federal Trade
Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct.
793, 92 L.Ed. 1010 (1948); Pillsbury, supra, 354 F.2d at
965. Recognizing that the Government has a particular res-
ponsibility to the Natives at least of a quasi-trust char-
acter (see infra) and considering all of these factors, the
Court will not remand but will in all cases reinstate the
decision of the Area Director. Cf. Radio Corp. of America
v. United States, 95 F.Supp. 660, 669 (N.D.111.1950) (three-
judge court), aff’d, 341 U.S. 412, 71 S.Ct. 806, 95 L.Ed. 1062
(1951).

Ill. Remaining Issues.

There are several remaining issues that were sharply
contested, briefed and argued before the Court. Normally
there would be no need to resolve such issues in view of
the above holdings, but in the event that on appeal, if one
is taken, the Court’s ruling is modified and further pro-
ceedings rquired in any of these cases, it is advisable in the
interests of a prompt ultimate determination for the Court
to indicate briefly is views on these subsidiary questions.

There permeates the entire controversy a dispute as to
whether the Secretary at one stage or another violated
his trust responsibility to the Alaskan Natives. In the
context of this statute, the Court finds that the Secretary
was obliged, in a broad sense, to act in the nature of a
trustee, which required him, at the least, not to disad-
vantage the Natives without good cause. This does not
resolve the question, however. It must be recognized that
under the statute and regulations the Secretary occupied
a position as a quasi-judicial officer, and whatever trust
responsibility he may have had did not extend so far as
to require him to abandon his role as a neutral, impartial

Soar Se i an 5 cages oie RR Tt ne Se eet Tae fe ie oe ig ir RA ODS.

foes Nad sta aire Ch Re

Se ee ee

89a

and disinterested decision maker. Clearly Congress did not
intend for all issues to be decided in favor of the Natives
regardless of the underlying situation. This is particularly
true where the interest competing with the Natives’ was
that of the public, to whom the Secretary as a govern-
mental servant also had a solemn responsibility. In any
event, whatever benefits are not awarded to one group
of Natives inure under the statute to another group, so
that the Secretary’s trust obligation was in equipoise and
did not require that, in effect, he favor some Natives over
others. Under all the circumstances, no breach of trust
was shown.

Another important issue is whether or not in village
eligibility hearings residence is determined conclusively by
the roll prepared by the Secretary pursuant to 43 U.S.C.
§ 1604 (Supp. III, 1973). The Board and the Secretary
took the position that this was not the case, and it appears
to the Court that their view is correct. Sections 1610(b) (2)
(A), (b)(3)(A) of 43 U.S.C. (Supp. ITI, 1973), do not re-
fer to the roll at all, but rather provide that this residence
determination be based on “the census or other evidence
satisfactory to the Secretary.” See also § 1602(c). More-
over, these same sections state that the Secretary “shall
make findings of fact in each instance,” a requirement
which would be unnecessary if the roll were dispositive.
These specific and unambiguous sections must control over
the more general language of 43 U.S.C. § 1604. Thus a re-
examination of residence is permissible where the eligi-
bility of a village is properly in issue. This, however, is a
two-way street and once the matter is opened up the Secre-
tary or his delegate cannot set aside the residence deter-
mination in the roll and decrease the number of village
residents without also adjusting the figures to add addi-
tional residents who were incorrectly excluded. Since the
Secretary did refuse to consider increasing the number of
residents in the case of Pauloff Hurbor, his decision in this
regard was erroneous.

90a

Another issue of some moment involves the three listed
villages of Uyak, Salamatof and Pauloff Harbor. These
villages are presumptively eligible under the statute. How-
ever, the Secretary by regulation added eligibility require-
ments beyond those specified in the Act, see 43 C.F.R.
§ 2651.2(b) (diseussed supra). No challenge to this is raised
by the unlisted villages, which must be “established” vil-
lages to qualify for benefits, 43 U.S.C. §1610(b)(3)(A)
(Supp. ITI, 1973). As to the listed villages, the question is
presented whether these regulations are consistent with
the Act and within the rule-making power conferred upon
the Secretary by 43 U.S.C. § 1624 (Supp. III, 1973). The
Court holds that the statutory standards for listed villages
are exclusive, and thus these regulations were beyond the
authority of the Secretary.

The contention that the Secretary did not act within
the statutory deadlines is without merit. It was not the
purpose of the statute to prevent orderly quasi-judicial
determination of issues which properly had been raised
prior to the deadline date.

The Court does not consider the claim that individual
Natives should have been made parties to the administra-
tive proceedings. These Natives are not before the Court
and the villages are without standing to raise the point.
Indeed, recognizing these defects, counsel withdrew this
claim at oral argument.

Plaintiffs’ motions foy summary judgment are therefore
granted, and defendant’s cross-motions are denied. An ap-
propriate Order is attached.

ORDER

For the reasons stated in the accompanying Memoran-
dum which sets forth the Court’s findings of fact and con-
clusions of law, the motions for summary judgment of each
and all of the plaintiffs should be, and hereby are, granted,
and the defendant’s cross-motions for summary judgment

9la

are denied. Accordingly, in each instance the final decision
of the Area Director, Juneau Area Offce of the Bureau of
Indian Affairs, shall be reinstated and shall constitute the
final determination as to village eligibility under the Alas-
ka Native Claim Settlement Act, 43 U.S.C. § 1601 et seq.
(Supp. III, 1973).

So ordered.

92a
APPENDIX E

Unitep States DeparTMENT OF THE INTERIOR
ALASKA NATIVE CLAIMS APPEAL BOARD

P. O. Box 2433
ANCHORAGE, ALASKA 99510

Bureau or Sport Fisuertes & Wiipiire, Appellant
v.

Vinvacr or Uyak, Kontaa, Inc., and Burgau or
Inpian Arrains, Respondents

ANCAB #VE 74-11

Involving the eligibility of the Village of Uyak under
the Alaska Native Claims Settlement Act

DECISION
Preface

This is a decision on the eligibility of the village of
Uyak, Alaska, for status as a Native village under the
Alaska Native Claims Settlement Act of December 18, 1971,
85 Stat. 688, 43 U.S.C., Sec 1601 et seq., hereinafter referred
to as the Act, and the Secretary of the Interior’s Rules and
Regulations on Alaska Native Selections, 43 CFR, 2650,
et seq. Status as a village confers certain statutory benefits
under the Act, including the right to select substantial
quantities of land and receive patent conferring the surface
rights associated with it. Subsurface rights to village lands
may be patented to the regional corporation for the region
in which the village is located.

The Act in Section 3(¢) defines the term ‘‘ Native village’’
as ‘‘any tribe, band, clan, group, village, community, or
association in Alaska listed in sections 11 and 16 of the
Act, or which meets the requirements of this Act, and which
the Secretary determines was, on the 1970 census enumera-

93a

tion date (as shown by the census or other evidence satis-
factory to the Secretary, who shall make findings of fact
in each instance), composed of twenty-five or more natives.’’

Statutory criteria for village eligibility are contained
in Section 22(b)(2) of the Act, which provides:

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—

(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.

Implementing regulations in 43 CFR 2651.2(b) provide:

(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 2, 1970, an
identifiable physical location evidenced by occupancy
consistent with the Natives’ own cultural patterns and
life style and at least 13 persons who enrolled thereto
must have used the village during 1970 as a place
where they actually lived for a period of time: Pro-
vided, That no village which is known as a traditional
village shall be disqualified if it meets the other cri-
teria specified in this subsection by reason of having

94a

been temporarily unoccupied in 1970 because of an Act
of God or Government authority occurring within the
preceding 10 years.

(3) The village must not be modern and urban in
character. A village shall be considered to be of modern
and urban character if the Secretary determines that
it possessed all of the following attributes as of April
2, 1970;

(i) Population over 600,

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

(iii) Five or more business establishments which
provide goods or services such as transient ac-
commodations 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 case of unlisted villages, a majority of
the residents must be Native, but in the case of villages
listed in sections 11 and 16 of the Act, a majority of
the residents must be Native only if the determination
is made that the village is modern and urban pursuant
to subparagraph (3) of this paragraph.

Regulations in 43 CFR 2651.2(a) establish a procedure
for determining whether a village meets the above criteria
for eligibility. The determination is made by the Director,
Juneau Area Office, Bureau of Indian Affairs, by a process
involving publication of a proposed decision, subject to
protest by interested parties; consideration of protests;

95a

and publication of a final decision on village eligibility
which may be appealed to the Secretary. Appeals to the
Secretary are made to an ad hoc board which he has per-
sonally appointed, at least one member of which must be
familiar with Native village life. Appeals to the Board are
governed by applicable regulations in 43 CFR 4,.700-4.704,

43 CFR 4.704, as amended January 21, 1974 (39 F.R.
2366) provides:

Any hearing on such appeals shall be conducted by
the Ad Hoe Appeals Board or a member or members
thereof, or by an Administrative Law Judge of the
Office of Hearings and Appeals and shall be governed
insofar as practicable by the regulations applicable to
other hearings under this part.

The Ad Hoe Appeals Board has subsequently been desig-
nated the Alaska Native Claims Appeal Board and will
hereinafter be referred to as the Board,

The Village of Uyak is listed in Section 11(b)(1) of the
Act, and was found eligible by the Director, Juneau Area
Office, Bureau of Indian Affairs in a decision published in
the Federal Register on December 12, 1973,

The decision was appealed by the Bureau of Sports Fish-
eries and Wildlife, hereinafter referred to as the Appellant,
on January 11, 1974. The Bureau of Indian Affairs, the
Village of Uyak, Inc., and the Regional Corporation of
Koniag, Inec., responded to the appeal. Following receipt
and consideration of briefs and motions and issuance of
certain preliminary rulings, the Board directed that a
de novo hearing be conducted on May 16, 1974, in Kodiak,
Alaska, by an Administrative Law Judge, All parties ap-
peared by counsel, and were given the opportunity to pre-
sent oral argument and evidence, to cross-examine opposing
witnesses, and to submit proposed findings of fact and con-
clusions of law after receipt of the hearing transcript. The
record compiled in this proceeding and now before the

96a

Board consists of the BIA case file, the Board’s file con-
taining the Notice of Appeal, pleadings, briefs, and motions
and preliminary rulings thereon by the Board; exhibits sub-
mitted by the parties and admitted into evidence at the
hearing; the hearing transcript; proposed findings of fact
and conclusions of law submitted by the parties; and a rec-
ommended decision submitted by the Administrative Law
Judge to the Board. It is on this record taken as a whole
that the Board reaches its decision.

Issues

The appellant contends that the decision of the Area
Director was in error because (1) there were not 25 or
more Native residents of the village on April 1, 1970, (2)
the village did not have on April 1, 1970, an identifiable
physical location evidenced by occupancy consistent with
the natives’ own cultural patterns and life style, and (3) at
least 13 persons who enrolled thereto did not use the village
during 1970 as a place where they actually lived for a
period of time.'

Decision of Administrative Law Judge
Findings

The Administrative Law Judge made the following find-
ings in his recommended decision submitted to the Board:
(ALJ Decision 18-19, 21)

1. The Appellant presented a prima facie case that
as of April 1, 1970, the village of Uyak did not have

* The parties\ stipulated at the hearing (1) that the proviso in
43 CFR 2651.2(b)(2) relating to villages that were temporarily
unoccupied in 1970 because of an Act of God or government au-
thority occurring within the preceding 10 years is not applicable
in this case (Tr. 4) ; (2) that the village or site is not modern and
urban in character within the meaning of 43 CFR 2651.2(b) (3)
(Tr. 4); and (3) that the village or site has an identifiable physi-
eal location from the standpoint that is shown on maps (Tr. 5).

=

_— aaeat -
ai tse ts 4 Fey ee ae —— sso ee ee ——- ="

fan sitet inl ee ssi etree ane: Bib ees Se A ee

97a (

an identifiable physical location evidenced by ocecu-
pancy consistent with the Natives’ own cultural pat-
terns and life style.

2. The Appellant did not present a prima facie case
that thirteen Natives enrolled to Uyak did not use the
village site during 1970 as a place where they actually
lived for a period of time.

3. The Appellant presented a prima facie case that
there were not 25 or more Native residents of the
village on April 2, 1970. (This finding is conditioned
on the Board’s reversal of the Judge’s rulings on a
motion to dismiss the appeal on the grounds that the
Appellant lacked standing, which will be discussed
hereinafter. )

Rulings on Motions

Seven motions were presented at the hearing and denied
by the Administrative Law Judge subject to his possible
reconsideration. (ALJ Decision 3-4)

The Judge did not reconsider his ruling on the following
motions, numbered 1, 4, and 5 in his decision and therefore
his denial of these motions stands. The Board concurs.
The first motion does not merit discussion and as to the
other two, Respondents had adequate notice before the
hearing that these questions would be in issue.

1. A motion by the appellant to dismiss the Bureau
of Indian Affairs from the proceedings on the ground
that the agency is not properly a party to the pro-
ceedings.

4. A motion by the respondents to exclude as an
issue the question of whether there were 25 or more
Native residents of the village on April 1, 1970, inas-
much as the issue was not timely raised in the notice
of appeal or in supporting documents.

98a

5. A motion by the respondents to exclude as an
issue the question of whether the village had on April
1, 1970, an identifiable physical location evidenced by
occupancy consistent with the Natives’ own culture
patterns and life style on the ground that while the
issue was raised in the notice of appeal, it was not
argued nor referred to in the appellant’s supporting
documents.

The Judge upon reconsideration again denied the motion
numbered ‘‘2’’ in his decision, to dismiss the appeal because
of the failure of the appellant to timely serve a copy of
the notice of appeal and statement of reasons for the
appeal on other parties. The Board concurs, for the fol-
lowing reasons, which are adopted from the Judge’s deci-
sion. (ALJ Decision 9-11)

Respondents contend that the appeal should be dismissed
for failure to serve the notice of appeal on the village of
Uyak, Koniag, Inc., and other parties listed in the regula-
tions. They argue: first, that service of the notice of appeal
on the parties must be made contemporaneously with the
filing of the notice of appeal; second, that failure to timely
serve the notice of appeal is jurisdictional and may not be
waived; and third, that even if failure to serve timely may
be waived, there are not grounds for doing so in the instant
case.

The first contention must be rejected. The applicable
regulation, 43 CFR 4.701, merely states that a certificate
of service accompany the notice of appeal. Nowhere does
it imply that service be made prior to or simultaneously
with the filihg of the notice of appeal. The common practice
in the Department is for appellants to state that on a spe-
cified date a copy of the notice of appeal was mailed to
certain named parties. There is no requirement that the
certificate state that the notice of appeal was received by
such parties as of a date certain. Indeed, the regulation

ea es ee

— —

99a

itself says the certificate shall set forth ‘‘the names of the
parties served, their addresses, and the dates of mailing.”’
(Emphasis supplied.) Proof of service is usually tendered
after the receipt of the notice of appeal. See e.g., 43 CFR
4.401(c) (2).

Secondly, failure to serve a notice of appeal is not juris-
dictional. Failure to timely file a notice of appeal is juris-
dictional and dismissal is mandated in such cases. Cf. Ta-
gala v. Gorsuch, 411 F2d 589 (9th Cir. 1969). It is the
receipt of the notice of appeal which activates the appellate
jurisdiction. Service of the notice of appeal has no effect
thereon. The applicable regulations in the case at bar do
not require dismissal of the appeal. By comparison, 43
CFR 4.402, which regulates appeals to the Interior Board
of Land Appeals, provides in relevant part, that:

An appeal to the Board will be subject to summary
dismissal by the Board...

(b) If the notice of appeal is not served upon ad-
verse parties within the time required. . . . (Emphasis
supplied.)

The Board of Land Appeals, in interpreting this regu-
lation, has held that dismissal is discretionary, not man-
datory. Allen M. Boyden, 2 IBLA 128 (197i). Inasmuch
as the Board of Land Appeals regulation has been con-
strued as discretionary, a fortiori, acceptance of the late
service of the notice of appeal on the village of Uyak and
Koniag, Ine., under regulations which do not provide for
a summary dismissal, must be seen as involving the exer-
cise of discretion.

The rationale animating the service requirement is a con-
cern that persons be given notice of possible actions which
might adversely affect their interests. As a practical mat-
ter, the Alaska Native Claims Appeal Board File, ALJ
Ex. 2, indicates that the attorney for both the village and
regional corporations had knowledge of the appeal within

100a

four days of its filing. Actually the respondents probably
had notice of the appeal as a result of a telephone com-
munication with the Board sooner than if the documents
had been mailed at the time the notice of appeal was filed.
Respondents have shown no injury from this slight delay.
Regarding the other persons required to be served, it is
to be noted that none of them appeared in this case despite
the fact that all were eventually served. In the absence of
a showing of any injury, the Board denies the motion to
dismiss the appeal for lack of timely service of the notice
of appeal on respondents.

The Administrative Law Judge upon reconsideration
granted the motion, numbered ‘‘3”’ in his decision, to dis-
miss the appeal on the grounds that the Appellant lacked
standing to appeal. (ALJ decision, 3.) The Judge con-
cluded upon analysis of the legal briefs and evidence pre-
sented at the hearing that, (1) Appellant was not pre-
cluded from appeal because of its status as an agency
within the Department of Interior; but (2) Appellant failed
in this case to allege injury in fact sufficient to entitle it
to standing. (ALJ decision 4-9)

The Board concurs in the Judge’s first conclusion, but
disagrees with the second. Therefore, the Board reverses
the ruling of the Judge and denies Respondents’ motion to
dismiss on the grounds that the appellant lacked standing
to appeal. The Board’s reasons for denial of this motion
will be discussed herein.

The Administrative Law Judge upon reconsideration
granted the motion, numbered ‘‘6’’ in his decision, to ex-
clude as an issue the question of residence of persons en-
rolled as residents of the village on the official roll on the
grounds that the residence of such persons has been deter-
mined and is not subject to collateral attack or redetermi-
nation in this proceeding. (ALJ decision 3).

The Judge after lengthy analysis concluded that such
a redetermination would be contrary to the intent and

10la

purpose of the Act and applicable regulations. (ALJ deci-
sion 11-15) After careful consideration of the Judge’s
interpretation and of legal briefs filed by the parties, the
Board reaches the opposite conclusion.

While the issue raised by this motion is not dispositive
of the instant appeal, it is of critical importance to the
Board’s jurisdiction and to other appeals before the Board.
The Board reverses the ruling of the Judge and denies
Respondent’s motion to exclude as an issue the question
of residence of persons enrolled as residents of the village.
The Board’s reasons for denial of this motion will be
discussed herein.

The Judge upon reconsideration denied Respondents’
motion, numbered ‘‘7’’ in his decision, to dismiss the ap-
peal or grant summary judgment on the ground that Ap-
pellant had not presented a prima facie case. (ALJ deci-
sion 3.) The Judge concluded that (1) Appellant presented
a prima facie case that as of April 1, 1970, the village of
Uyak did not have an identifiable physical location evi-
denced by occupancy consistent with the Natives’ own
cultural patterns and lifestyle; (2) Appellant did not pre-
sent a prima facie case that thirteen Natives enrolled to
Uyak did not use the village site during 1970 as a place
where they actually lived for a period of time; and (3)
Appellant presented a prima facie case that there were
not 25 or more Native residents of the village on April 1,
1970. (ALJ decision 18-21).

The Judge’s ruling is of course conditioned upon the
Board’s denial of Respondents’ motion to dismiss the ap-
peal for lack of standing; and his third conclusion, noted
above, depends upon the Board’s denial of Respondents’
motion; ‘‘6’’. The Board has denied both motions, and
concurs in denial of the motion now under discussion for
reasons which will be discussed herein.

102a

Decision of the Alaska Native Claims Appeal Board
Rulings on Motions

The Boards rulings on motions before both the Board
and the Administrative Law Judge have been stated in the
preceding discussion of the Judges’s decision. The Board’s
reasons for reversal of the Judge’s rulings and denial of
Respondents’ third motion, dealing with the standing of
the Appellant, and Respondents’ sixth motion, dealing with
redetermination of residence of Natives enrolled to the
village, are as follows.

Standing

Appellant’s standing is challenged on the grounds that
they cannot be a ‘‘party aggrieved’”’ within the meaning of
43 CFR 4.700 because, as a Government agency, they are
not eligible for status as a party and because they have
failed to assert a real injury.

The Board is unable to accept the general proposition
that agencies of a Department do not have the capacity to
appeal decisions of other agencies within the same Depart-
ment to the head of that Department. In Margaret Chicha-
rello, 9 IBLA 124 (1972), the Interior Board of Land Ap-
peals ruled that the Bureau of Indian Affairs had standing,
in its official capacity, to appeal a decision of the New
Mexico State Director, Bureau of Land Management, dis-
posing of lands under the Publie Sale Act, 43 U.S.C. 1171
(1970), and the Recreation and Public Purposes Act, 43
U.S.C. 869 (1970).

Neither the Act nor its legislative history can be con-
strued as affirmatively prohibiting the recognition in the
proper circumstances, of an agency as an aggrieved party.
The fact that Congress made no express provision for the
formal participation of the Bureau of Sports Fisheries and
Wildlife in the determination of village eligibility cannot
be read as a constructive denial of standing.

108a

Except for Section 2(b) of the Act which states ‘‘the
settlement should be accomplished rapidly ... with maxi-
mum participation by Natives in decisions affecting their
rights and property ...’’, the Act does not expressly con-
template participation by parties other than the Secretary
in the determination of village eligibility... . A logical
result of respondents’ argument would be that no one could
appeal a decision certifying a village as eligible since Con-
gress had not specifically so provided. The Board rejects
this argument.

Respondents’ contention, that Appellant lacks standing
as an aggrieved party because of a failure to assert suffi-
cient injury, must be examined carefully. It is helpful to
review the rationale and development of the concept of
standing.

The requirement of standing dictates that each party to
litigation should have some interest therein, and operates
to protect both individual parties, and the judicial process.
This requirement recognizes that it is intrinsically unfair
to expose an individual party to the trouble and expense
of a frivolous suit, instigated by an opposing party who
has suffered no real harm from the actions of the defend-
ant. It also recognizes the reliance of the court, in the
adversary system, on the ability of the parties before it to
present relevant evidence. The issue of standing focuses
on the party seeking to get his complaint before the court,
to ascertain that he has such a personal stake in the out-
come as to assure the ‘‘concrete adverseness’’ which sharp-
ens the presentation of issues on which the court depends.
Flast v. Cohen, 20 L Ed 2d 947 (1968; Baker v. Carr, 7
L Ed 2d 663 (1962),

Pursuing this concept, the courts have developed a dual
test of standing; to have standing, a party must allege
injury in fact; to an interest within a zone of interest
protected by the statute or constitutional guarantee in-
voked. Association of Data Processing Service Orgamiea-

104a

tions v. Camp, 25 L Ed 2d 184 (1970); Barlow v. Collins,
25 L Ed 2d 192 (1970). Not only must the injury alleged
be to a cognizable interest, but the party alleging it must
himself be among the injured. Sierra Club v. Morton, 31
L Ed 2d 636, The injury must be real, not remote or
speculative; a plaintiff must allege ‘‘that he has been or
will in fact be perceptibly harmed by the challenged agency
action, not that he can imagine circumstances in which he
could be affected by the agency’s action.’ U.S. v. SCRAP,
37 L Ed 2d 254 (1973).

It is recognized, as argued by the Respondents, that
courts have applied these tests to determine the standing
of litigants before them. However, it must also be remem-
bered that the Board is an administrative body, not a court.

The Board acts in this proceeding for the Secretary,
who has been directed by Congress in Section 11(b)(2) of
the Act to determine village eligibility through considera-
tion of census data or other evidence, and to ‘‘make find-
ings of fact in each instance.’’

Part of this statutory fact finding responsibility has been
delegated to the Director, Juneau Area Office, of the Bureau
of Indian Affairs in that it is his duty under regulations
in 43 CFR 2651.2 to investigate the villages listed in the
Act and publish decisions on their eligibility. It is these
decisions which are appealed to this Board, and it is the
Board’s duty to decide, subject to the approval of the
Secretary, whether these decisions were correct.

In carrying out this duty, delegated to it by the Secre-
tary, the Board is authorized, in its discretion, to direct
hearings. (43 CFR 2651.2(a) (5) ; 43 CFR 4.704)

It is clearly the purpose of such hearings to enable the
Secretary, through the Board, to fulfill his statutory obli-
gation of deciding village eligibility appeals with the fullest
possible command of the relevant facts.

1058

This purpose is best served by recognizing standing of
a party who demonstrates a nexus with the village suffi-
cient to assure the presentation of factual evidence relevant
to the village’s eligibility.

The Board will therefore be guided by a relatively broad
concept of standing, particularly when the Secretary’s fact
finding obligation would be thwarted by a more restrictive
approach,

This is consistent with the approach followed in other
proceedings before the Department of the Interior, In
Navajo Tribe of Indians v. Utah, 12 IBLA 5, 80 I.D. 441,
the Tribe was accorded standing to challenge issuance of
a confirmatory patent to Utah, based on prior occupancy
of the patented lands by individual Navajos—although such
occupancy, if proven would have defeated the Tribe’s claim
to, and interest in, the lands. In Crooks Creek Commune,
10 IBLA 243 (1973) the Interior Board of Land Appeals
recognized standing of a commune consisting of some ten
people to appeal denial of the proposed logging of lands
adjacent to their property, despite the fact that the Com-
mune asserted no legal interest in such lands and despite
uncertainty as to the group’s legal status as an entity.

It must also be remembered that the ‘‘injury in fact”’
test imposed by the courts is itself a liberal standard.
Denial of standing to the Sierra Club in Sierra Club v.
Morton, 31 L Ed 2d 636, was based on the Club’s failure
even to allege that it or its members would be affected by
the action complained of, rather than on the type of harm
alleged. And in U.S. v. SCRAP, 37 L Ed 2d 254 (1973),
the court deemed plaintiffs to have alleged perceptible harm
based on allegations that their use of natural resources
in Washington, D.C. area would be disturbed by the ad-
verse environmental effects of nonuse of recyclable goods,
which plaintiffs asserted would result from a railroad
freight surcharge on such goods.

106a

Appellant Bureau of Sports Fisheries and Wildlife did
not allege standing in its Notice of Appeal and Appeal
Brief. It submitted with its appeal brief statements of five
persons purporting to contradict the findings of the Area
Director, BIA, in support of his decision that the village
was eligible. The statements of two pilots, a guide, and a
salmon fisherman indicated that the village was unoccupied
in 1970; the statement of June Williams indicated that she
was the census taker for Uyak Bay and that she did not
stop in Uyak in 1970 because her aircraft pilot told her
nobody lived there.

Appellant then alleged, in defense of Respondents’ mo-
tion to dismiss for lack of standing that a decision of eligi-
bility of the village of Uyak would lead to severe damage
to Alaskan wildlife refuges under its care and stewardship,
and further asserted that the Board as a factfinding and
review body for the Secretary should broadly grant stand-
ing to parties potentially able to impart information to
the Secretary.

The injury alleged by Appellant arises from the fact
that Uyak is located in close proximity to the Kodiak
National Wildlife Refuge, and the village, if eligible, would
be entitled to select lands within the Refuge and receive
patent conferring the surface rights to such lands. Section
12(a)(1) of the Act limits the lands which a village may
select within a Refuge to a maximum of 69,120 acres.

Respondents argue that the injury to the refuge inherent
in the loss of such a substantial quantity of land are
ameliorated by other provisions in the Act. They point out
that under, Sections 12(a)(1) and 14(f) of the Act, the
Regional Corporation for the Region in which the village
is located does not receive subsurface rights to village
lands within the refuge; that under Section 22(e), the
Secretary may add to the Refuge other public lands in
Alaska, to replace those selected by a village; and that
under Section 22(g), the United States reserves a right of

107a

first refusal if village land rights within the refuge re
ever sold, and such lands remain subject to the laws and
regulations governing use and development of the refuge.

owever, the Board is not persuaded that these provi-
sions operate to deprive Appellant of standing in this
e.ppeal. In allowing village selections within wildlife re-
fuges, Congress clearly chose between competing policies.
In limiting village rights to such lands, through the provi-
sions referenced above, Congress clearly recognized and
sought to mitigate the potential for adverse effects on the
refuge caused by its choice. It would be an unwarranted
assumption, however, to conclude that these provisions com-
pletely ameliorated the injury.

Under cross-examination at the hearing, Mr. Gerry At-
well, present Manager of the refuge, testified that the
passage of lands within the refuge from public to private
ownership would necessitate a dual management plan and
require the expenditure of time on this plan, to the detri-
ment of research and wildlife management. (Tr. pp. 120,
121.) He also testified to the unique character of lands in
the refuge:

Q. (By Mr. Bruce) Is it also not correct that in Sec-
tion 12 of the Act that you can, if the Secretary deter-
mines it is necessary, to secure additional land than
lands selected by you—so, in other words, the Act
really—not only does it (not) harm you, but it could
be considered as giving you twice as much land as
you had the first time on the basis of selection.

A. This is one way it could be looked at, yes.

Q. Would you consider that harmful or helpful to wild-
life habitat?

A. Of course, we are concerned here mainly with bear,
and the situation at Kodiak is a unique echo system
(sic), and if the Island were not available, say, in total

108a

for bear refuge, and we had to go someplace else, we
could never completely duplicate Kodiak Island, as far
as bear habitant is concerned, (Tr. p. 122)

Both Mr. Atwell and Mr. Hensel, a former manager of
the Refuge, revealed considerable uncertainty under cross-
examination as to the consequences of village selections in
the refuge, and the effect of mitigating provisions in the
Act. (Tr. pp, 118-119, 129, 146-150). However, as both wit-
nesses’ training and experience is in game management
rather than interpretation of the law, the Board assigns
less weight to this testimony than to Mr. Atwell’s testimony
on bear habitat and management problems quoted above.
The latter is clearly within Mr. Atwell’s field of expertise,
and the Board considers it significant.

It further appears to the Board that Respondent’s re-
liance on the mitigating provisions in the Act, to negate
Appellant’s injury, may be misplaced. These provisions
are arguably irrelevant to the injury complained of; i.e.,
that refuge lands would pass into the ownership of a village
not eligible under the Act to receive them, The operation
of statutory safeguards when refuge lands pass to a quali-
fied village should not foreclose Appellant from challeng-
ing the certification of a village which it believes to be
ineligible. This Board is the proper forum for such a
challenge.

Respondents have argued that the Act must be liberally
construed in favor of the Natives wherever any ambiguity
exists in the statutory language. The cases cited on this
point, however, are dealing specifically with the ‘‘tradi-
tional guardian-ward relationship between the United
States and the Indians’’ which has been the relationship
between the Federal Government and the Native people in
the lower 48. Squire v. Capoeman, 351 U.S. 1; Carpenter
v. Shaw, 280 U.S. 363. As is emphasized time and time
again in the legislative history of the Act, Congress in-
tended this legislation to be ‘‘a more just and, hopefully,

109a

a wiser solution than has been typical of our country’s
history in dealing with Native people in other times and
in other states, S. Rep, No, 405, 92d Cong., Ist Sess. 61-62
(1971), The Act ‘intends to avoid prolonged legal or prop-
erty distinctions or implications of wardship based upon
race.’’ Id. at 80.

Further, in the specific cases involving village eligibility
appeals, the legal doctrine of liberal statutory construction

in favor of Indians loses its meaning because of Section
12(b) in the Act:

The difference between twenty-two million acres and
the total acreage selected by Village Corporations pur-
suant to subsection (a) shall be allocated by the Sec-
retary among the eleven Regional Corporations (which
excludes the Regional Corporation for Southeastern
Alaska) on the basis of the number of Natives en-
rolled in each region. Each Regional Corporation shall
reallocate such acreage among the Native villages with-
in the region on an equitable basis after considering
historic use, subsistence needs and population. The
action of the Secretary or the Corporation shall not
be subject to judicial review.

If an unqualified village is certified, it receives land
benefits at the expense of those properly certified Native
villages and thus deprives other Native stockholders of land
benefits to which they would otherwise be entitled.

For these reasons, the Board concludes that Appellant
has standing to appeal.
RESIDENCE
Board’s Jurisdiction to Review Residence

The question of the Board’s jurisdiction to review the
residence of individuals enrolled to a village has been pre-
served by the Respondents.

110a

In connection with certain motions to dismiss, the Board
has previously ruled on this question as follows:

As to the assertion that certain issues relating to
enrollment are outside the Board’s jurisdiction:

(a) Enrollment for purposes of determining the
status and eligibility of the individuals as Alaska Na-
tives is outside the jurisdiction of the Board, and the
Board will not hear appeals from Decisions of the
Enrollment Coordinator.

(b) The Enrollment Coordinator is not a necessary
party before the Board because the only administrative
determination properly appealed and within the
Board’s jurisdiction on this appeal is the Final Deci-
sion of the Area Director on the eligibility of the
village. ...

(c) The regulations of 43 CFR § 2651.2(b) (1) pro-
vide for an investigation and examination by the Area
Director of ‘‘available records and evidence that may
have a bearing on the character of the village and its
eligibility.’’

(d) The regulations in 43 CFR § 2651.2(b) (1) di-
rect the Area Director to consider the residence of
Natives ‘‘properly’’ enrolled to the village as shown
on the roll, but also direct the Area Director to con-
sider the census and other evidence.

(e) Since the regulations thus recognize that the
determinations of village eligibility and enrollment are
separate decisions, made by separate officers, under
separate procedures, this Board has jurisdiction to
review the final decision of the Area Director on the
eligibility of the village ... but is not required to
review the enrollment of the individuals as determined
by the Enrollment Coordinator.

Therefore, in deciding appeals from the Area Direc-

llla

tor’s decisions on village eligibility, where the question
of whether a village has the requisite minimum of 25
Native residents, as set forth in 48 CFR § 2651.2(b)
(1), is in issue, the Board will consider evidence on
such questions including, but not limited to, evidence
of residence as shown on the roll.—Order Denying
Motion to Dismiss, dated March 25, 1974.

This order constitutes a ruling by the Board that it does
have jurisdiction to determine the residence of enrolled
Natives in connection with the determination of village
eligibility.

Basis of Jurisdiction on Residence

This decision is based on construction of the Act and
applicable regulations.

Section 5(a), 43 U.S.C. Section 1604(a), of the Act
provides:

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 the enactment of this Act. Any decision of the
Secretary regarding eligibility for enrollment shall be
final. (Emphasis added)

The finality of the Secretary’s decision goes to eligibility,
i.e., determination of sufficient blood quantum for individual
placement on the Roll.

Section 5(b), 43 U.S.C. Section 1604(a), of the Act
provides:

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 ac-
cording to such residence. (Emphasis added)

1l2a

There is no inference of finality of decision insofar as
the residence of individuals on the roll is concerned, ac-
cording to the language in the Act. However, the language
‘*shall show’’ establishes a strong presumption of the cor-
rectness of the residency shown on the Roll. To interpret
otherwise would lead to the conclusion that the Roll, inso-
far as it presumes to establish residence, is a futile en-
deavor.

Finally, the Roll signed by the Bureau of Indian Affairs
Enrollment Coordinator and approved by the Secretary on
December 17, 1973, certifies only that persons listed on
the Roll were determined to be eligible for enrollment as
Alaska Natives.

Upon completion, the Coordinator shall affix to the
Roll a certificate indicating that to the best of his
knowledge and belief the Roll contains only the names
of persons who were determined to meet the require-
ments for enrollment as Alaska Natives. The Roll

shall be submitted to the Secretary for approval. (25
CFR 43h.9)

The differing language of the statute regarding eligibility
and residency on the roll reflects a unique Indian enroll-
ment required by the Alaska Native Claims Settlement Act.
Since the settlement involves both land and money entitle-
ments, and since these settlement entitlements accrue, in
most part, (exceptions in § 14(h)) to regional and village
corporations and enrollee-stockholders of these corpora-
tions, the roll had first to establish who was eligible to
participate in the benefits of the settlement—i.e., who was
an Alaskan-Native. Second, the roll had to provide the basis
for determining the kinds of benefits an individual would
receive—i.e., whether as a stockholder of a village corpora-
tion and/or, a stockholder of a regional corporation. Third,
the roll had to provide, on the basis of an individual’s
claimed residence, information as to the proportional
amount of and and money entitlements the village and

—

113a

regional corporations will receive insofar as these are based
on population.

Certification of the roll with a final determination as to
eligibility of Natives and a showing of residency to deter-
mine individual benefits and assignment of proportional
money and land entitlements to the village and regional
corporations occur, under the timetable in the Act, prior to
a determination of village eligibility.

Determination of village eligibility, under the Act and
regulations, occurs after completion of the roll, but never-
theless requires a second round of fact finding.

Section 3(c), 43 U.S.C. Section 1602(c), of the Act
provides:

‘‘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 de-
termines 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. ...
(Emphasis added).

The determination by the Secretary as to what qualifies
as a Native village must be based on findings of fact,
according to the language of the statute.

Section 11(b)(2), 43 U.S.C. Section 1602(c), of the Act
provides:

Within two and one-half years from the date of enact-
ment 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 villages
shall expire if the Secretary determines that—

1l4a

(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 satis-
factory 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.
(Emphasis added)

Section 11(b)(3), 43 U.S.C. Section 1610(b) (3), of the
Act provides:

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 Secvetary 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 established village on the 1970 census enumera-
tion date as shown by the census or other evidence
satisfactory to the Secretary, who shall make find-
ings of fact in each instance; and

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

The statutory language mandates a Secretarial review
and factfinding before final determination of the eligibility
of a village, and the mandate is inclusive as to the require-
ments for eligibility-—-25 residents of a village on April 1,
1970, and that the village not be of a modern and urban
character.

Again, under the timetables in the Act, decisions as to
eligibility and a showing of residency occur first: ‘‘The
Secretary shall prepare within two years from the date
of enactment of this Act, a roll... .’’ §5(a) (emphasis

115a

added). ‘‘ Within two and one-half years from the date of
enactment of this Act, the Secretary shall review all of
the villages... .’’? §11(b)(1) and (2) (Emphasis added)

Because the compilation and certification and the roll
precedes in time the determinations of village eligibility,
Congress had the opportunity to require that residency as
indicated on the roll was to be conclusive for the purposes
of determining village eligibility. The fact that Congress
did not so provide indicated that Congress did not intend
for the residency as indicated on the roll to be conclusive
for such purposes.

Instead, Congress mandated that the Secretary, with the
roll completed and information on it available to him, make
a review and finding of fact on every village to determine
whether it was, on the April 1, 1970 census date, composed
of 25 Native residents and was not modern and urban in
ch racter.

If the residency as shown on the roll is, as Respondents
argue, conclusive on its face, why did Congress specifically
direct the Secretary to make a review and findings of fact
in the determination of 25 residents?

Interior Department regulations affecting Native land
selection reflects compliance with the Congressional fact-
finding and review mandate in 43 CFR Part 2650.

§ 2651.2(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.

The parts following provide regulations for such deter-
minations, including appeal procedures to this Board.

The residence criteria pertaining to village eligibility are
contained in § 2651.2(b) (1):

1l6a

There must be twenty-five 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.

If this paragraph contained only the first sentence, there
would be clearly no question regarding the Board’s juris-
diction to review the issue of residence. It is the second
sentence which has been asserted as a conclusive presump-
tion in favor of residence as determined by the Enrollment
Coordinator. However, this construction renders the word
‘*properly’’ superfluous in the sentence. Reading the sen-
tence with the word ‘‘properly,’’ however, seems to conflict
with the phrase ‘‘shall be deemed,’’ since a Native ‘‘resi-
dent’’ of a village is necessarily ‘‘properly enrolled’ t»
the village. Giving effect to both the word ‘‘properly’’ and
the phrase ‘‘shall be deemed’’ in the sentence clearly
creates a rebuttable presumption that a Native who is
enrolled to a village is a resident of that village.

This construction is consistent with other rebuttable pre-
sumptions normally used by courts and administrative
agencies, such as the presumption that public officials have
performed their duty in the proper manner, and the pre-
sumption that a person's statements on an official govern-
ment form are true and accurate to the best of his knowl-
edge and belief.

This rebuttable presumption was adopted by the Board
and issued as a ruling in connection with the Board’s allo-
cation of the burden of proof in the Pre-Hearing Confer-
ence Noticé and Order in this matter, dated April 8, 1974:

b. Persons who appear on the Roll of Alaska Natives
as residents of a named village are rebuttably pre-
sumed to be residents of the village named for pur-
poses of village eligibility determinations.

117a

The rebuttable presumption is consistent with Section
5(b) of the Act.

Therefore, the Board concludes that it has jurisdiction
to review the residence of individuals enrolled as Alaska
Natives for purposes of village eligibility determinations.
The Board also rules that it does not have jurisdiction to
review the determination of the Enrollment Coordinator;
that a person meets the requirements for enrollment as an
Alaska Native, since such determinations have been vested
in the Enrollment Coordinator and the Regional Solicitor
by regulations in 25 CFR Part 43h, subject only to the
approval of the Secretary, pursuant to 25 CFR 43h.9, The
Board takes official notice that persons listed as eligible on
the Roll of Alaska Natives approved by the Secretary are
‘‘Natives’’ within the meaning of the Act and regulations.

Definition of Permanent Residence

For determinations of village eligibility, the Board adopts
the same definition of residence used by the Enrollment
Coordinator, contained in 25 CFR 43h.1(k) :

‘‘Permanent residence’? means the place of domicile
on April 1, 1970, which is the location of the permanent
place of abode intended by the applicant to be his actual
home. It is the center of the Native family life of the
applicant, to which he has the intent to return when
absent from that place. A region or village may be the
permanent residence of an applicant on April 1, 1970,
even though he was not actually living there on that
date, if he has continued to intend that place to be his
home.

It is helpful to compare this definition of permanent resi-
dence with the concept of ‘‘home,’’ defined in the Restate-
ment 2d, Conflict of Laws, Section 12, as ‘‘the place where
a person dwells and which is the center of his domestic,
social, and civil life.’”? The comments indicate that when
determining whether a place is a person’s home, considera-

118a

tion should be given to its physical characteristics, the
time one spends there, the things one does there, his inten-
tion when absent to return to that place, other dwelling
places of the person and similar factors concerning those
other dwelling places, Comment ©, Section 12, Restatement
2d, Conflict of Laws.

Other factors in the definition in 25 OFR 48h.1(k) recog-
nize the special situation of Alaska Natives, where Native
family life may be characterized by patterns of kinship
and activities substantially different from non-Native fam-
ily life. In addition, the definition recognizes the frequently
transient life style of Alaska Natives, Thus, the definition

emphasizes the factors of Native family life and intent to
return,

While intent is obviously subjective and personal, it is
frequently capable of objective proof, and where objective
evidence is presented which contradicts subjective intent,
and the objective evidence is neither rebutted nor explained,
it will clearly be persuasive. On the other hand, where
economic, educational, or other requirements have tempo-
rarily deprived one of any real choice, and both the sub-
jective intent and the objective evidence indicate a genuine
connection with the place of enrollment, that place is con-
sidered to be the permanent residence of the individual
within the meaning of 25 CFR 43h.1(k), notwithstanding
that for other purposes a court or an administrative agency
may find that person’s residence or domicile to be some
place other than his ‘permanent residence’’ as determined
for purposes of the Alaska Native Claims Settlement Act.

The Respondents have cited a letter from Curt Berklund,
Deputy Assistant Secretary of the Interior, dated February
27, 1973, to Morris Thompson, Area Director, Bureau of
Indian Affairs, Juneau, Alaska, which interprets the defi-
nition of ‘‘permanent residence’? in 25 CFR 43h.1(k). The
pertinent paragraph in the letter reads:

The primary point of confusion is who now living out-

119a

of-state enrolls back to Alaska, Under the above defi-
nition a person who has at one time lived in a village
or other place in Alaska and considered that place to
be his permanent residence on April 1, 1970, and in-
tends to return to that place must enter that place in
column 16 on the application form and be enrolled
there. If he considered some place outside of Alaska
as his permanent residence on April 1, 1970, and in-
tends to return there, he must enter that place in
column 16. There is no ‘‘choice’’ involved, Under no
circumstances may an individual who has never lived
in Alaska enroll to a village in Alaska through per-
sonal choice by entering a village name in column 16
on the application form. The only way in which a
person who has never lived in Alaska may be enrolled
in Alaska would be by (1) showing an out-of-state
permanent residence in column 16 of the application
form and (2) voting ‘‘No’’ on the establishment of a
13th regional corporation. He would then be enrolled
by the Secretary in one of the twelve regions in Alaska
based upon the priorities listed in Section 5(¢) of the
Act, (emphasis in original)

Considered in the context of the enrollment regulations
in 43 CFR 43h, and with particular reference to the prob-
lem addressed by this letter,—that is, the enroilment of
persons who are residents outside the state of Alaska—the
letter is not inconsistent with the interpretation of ‘‘ perma-
nent residence’? adopted by the Board; but neither is it
particularly relevant to the problem of how the place of
‘‘nermanent residence’? should be determined, There is
no disagreement with the proposition that one should be
enrolled to his ‘‘permanent residence.”’

Exceptions

The Board has also been asked to rule on three motions
not before the Administrative Law Judge.

120a

1. Respondents have moved that decisions shall be par-
ticipated in by the full membership of the Board. The
Board rules that, since all four members of the Board
participated in this decision, the issue is moot.

2. Respondents have moved that they be given an oppor-
tunity to submit exceptions to the recommended decision
issued by the Board. The fact that respondents were af-
forded opportunity to submit proposed findings and con-
clusions to the Administrative Law Judge prior to the
issuance of his decision satisfied the requirement that each
party prior to final decision shall be afforded reasonable
opportunity to submit proposed findings and conclusions
or exceptions to the decision or recommended decision of
subordinate officers. Watson Bros. Transportation Co. v.

United States, 180 F. Supp 732.
The Board therefore denies such motion.

3. Respondents have moved that they be given an oppor-
tunity to submit exceptions to the recommended decision
of the Administrative Law Judge. The Board denied such
motion for the reasons stated above. Both motions were
denied in an Order dated May 28, 1974.

Summary of Evidence

The Administrative Law Judge discussed the evidence
presented at the hearing in his decision. (ALJ decision
15-28.) His discussion is substantially dupliceted here
merely for the sake of continuity in the Board’s decision.

Appellant called a total of ten witnesses. Robert
Bruce; the attorney for the Bureau of Indians Affairs,
was called merely to identify documents. (Tr. 160-174)
Gail Fitzpatrick, a realty specialist employed by the
Bureau of Indian Affairs, was called in reference to
his work in preparing a field report which had recom-
mended certification of the village of Uyak. Fitzpatrick
testified that he had visited Uyak last summer at which

12la

time it was a long established village. (Tr. 22) He
stated that there were Native residences, remnants of
an old boat dock destroyed by unknown forces, live-
stock, and, to the best of his knowledge, native bonyas.
(Tr 22, 25) He also testified that Uyak was listed in
the Alaska Dictionary of Place Names, but he was
unable to recall the accompanying population figures.
(Tr. 23-24)

Dee Dee Hans testified that she had lived in Uganik
Bay, which was about 4 hours by boat from Uyak, since
1959, until she had moved to Kodiak in the last year.
(Tr. 26) She testified that she had visited approxi-
mately 4 or 5 villages, a total of 12 times, with some
stays being overnight. (Tr. 33-34) She stated that from
her experience a village consisted of a group of
people living in close proximity with a church, post
office, stores, etc. (Tr. 28) She declared that she had
never met anyone who said they were from Uyak. (Tr.
28) She admitted, however, that she had never been
to the site of the village of Uyak. (Tr. 26, 28)

A present and a former pilot testified as to their
contact with the village of Uyak. David Henley, a pilot
in Kodiak since 1950, stated that he had put down in
Uyak a couple of times, had flown over the site a
number of times, and had never seen a Native village
there. (Tr. 43-46) He admitted that he could not, from
personal knowledge, state how many people lived there
or the business activity in the area in 1970, (Tr. 48)
He also admitted that he was not an expert on the
Natives’ way of life or how they live. (Tr. 49) Jerry
Holt, a former pilot, who was a naval security officer
in 1969-70, testified that he had put down in Uyak Bay
and had never seen a Native community there. (Tr.
97-98) Though he never set foot at Uyak he did testify
that he was within 500 feet of the village, and had
never seen people there or skiffs on the beach, (Tr.
98, 103) He compared the native communities of Kar-

122a

luk, Port Lions, Larson Bay, and Akhiok to Uyak
stating that in those communities people live there on
a year-round basis. (Tr. 106) He admitted that many
Natives from those villages spend the winter in Kodiak.
(Tr. 99-100) He stated that in his opinion a native
village would have someone living there all year long.
(Tr. 106) He admitted that he had no personal knowl-
edge as to whether there were or were not 25 people in
Uyak in 1970. (Tr. 180)

Darrell Farmen, a taxidermist and guide, testified
that he had visited Uyak on two occasions. (Tr. 131)
He stated that he could recall no sign of habitation
other than buildings presently owned by Leon Fran-
ciseo. (Tr. 132) He admitted, however, that he had
not been to Uyak since 1962. (Tr. 132)

Appellant also presented the testimony of two resi-
dents of Uyak Bay. The first, Leon Francisco, main-
tains a furnished home with his wife and four children,
at the site of Uyak village. (Tr. 57-58) Francisco lived
across the Bay from Uyak in 1966. (Tr.58) In 1970,
he purchased his present residence in Uyak but was
not physically in residence until the late spring of
1971. (Tr. 71-72) He had been to the site for 10 days
in April of 1970 and had passed by in March of that
year. (Tr. 72) He declared that he had never seen a
Native village at the site. (Tr. 71) He compared Port
Lions with Uyak stating that at Port Lions there are
people there with a much larger scale of economic
activity. (Tr. 75) He stated that to him residence
means_residing in a structure on the land a majority
of the year. (Tr. 79-80) He did agree that you could
live on a boat and it could be a residence, but said
that those boats he saw in Uyak harbor stayed about
3 days maximum, (Tr. 81, 85)

Park Munsey, who lives at Uyak Bay about eight to
ten miles from the Francisco home, also testified for

123a

the appellant. For the past ten to twelve years he has
lived at Uyak Bay for 9 months out of the year. (Tr.
87) He said he was familiar with the Uyak area and
that he did not feel as if he was in a village when he
was at Uyak. (Tr. 88, 90) While he admitted that he
was not an expert on Native culture, it was his opin-
ion, based on visits to other villages, that a village
evidenced signs of occupancy on a year round basis,
such as a certain amount of activity and the presence
of children, (Tr. 91)

The present Manager of the Kodiak National Wild-
life Refuge, Gerry Atwell, who has been manager of
the refuge since June of 1971, and the former manager
of the Kodiak National Wildlife Refuge, Richard Hen-
sel, testified for the appellant. Atwell’s testimony was
primarily directed to the impact of the exercise of
land selection rights within the refuge. (Tr. 118-130)
He did identify a number of pictures of the area which
show the site in its present condition. (Tr. 115-116)

Hensel testified that he was the refuge manager from
February of 1963 to October of 1970, He stated that
he had visited between 60-70 Native villages in Alaska,
including every Native village on Kodiak island. (Tr.
144) He testified that on April 6, 1970, he flew over
the Uyak site. On April 30 of that year he was on a
Marine vessel anchored at Uyak, and flew over the
site again on May 21 and on August 23. (Tr. 141) On
all four occasions, he found it unoccupied, though on
the August overflight he saw a series of gill net sites
off Seven-Mile Beach, approximately 2-3 miles from
Uyak. (Tr. 141) He stated that, on the basis of his
experience, it was his view that Uyak was an abandoned
village in 1970. (Tr. 144)

The testimonial evidence presented at the hearing
can thus be synthesized as follows: (1) a number of
people had passing familiarity with the area and with

124a

other Native villages and did not believe that Uyak
was a Native village in that it had invariably been
unoccupied when they were at the village site; (2) two
witnesses, Munsey and Francisco, who have lived at
Uyak Bay, Munsey about 8 miles from the site of
Uyak village, Francisco at the village site, testified
that they had never seen a Native village at the site.
(It should be noted that Francisco commenced living
at the site in 1971); (3) one witness, Hensel, testified
as to extensive contacts with Native villages as well
as personal viewings of the village site in 1970.

Findings

The Board makes the following findings, which support
the Board’s denial of Respondents’ motion to dismiss the
appeal on the grounds that Appellant had not presented
a prima facie case.

1. Appellant presented a prima facie case as of April 1,
1970, the village of Uyak did not have an identifiable phy-
sical location evidenced by occupancy consistent with the
Natives’ own cultural patterns and life style.

It was stipulated during the hearing that the physical
situs of the village of Uyak was as shown in Bureau of
Sport Fisheries and Wildlife Ex. 2. The stipulation left
open, however, the question of occupancy consistent with
the Natives’ own cultural patterns and life style. The evi-
dence adduced at the hearing tended to show a historical
chain of non-oceupancy through 1973. Particularly impor-
tant was the testimony of Hensel, Munsey and Francisco.
Hensel testified that, on the basis of extensive contacts with
Native villages, he felt that the village had been abandoned
in 1970. Munsey testified that he had lived in the general
area of the village for the past ten to twelve years, nine
months out of the year, and had never seen what he con-
siders to be a Native village at the Uyak site. Francisco
who lived at Uyak from 1971 to the present stated that he

125a

had never seen, with the exception of Joe Darling and his
family, Natives occupying the village. While his testimony
is not directly related to the critical date, it does properly
give rise to an inference of non-occupancy during 1970,
since it is unlikely, albeit possible, that occupancy consistent
with Native cultural patterns existed in 1970 but abruptly
terminated in 1971.

The phrase ‘‘consistent with the Native’s own cultural
patterns and life style’’ is not self definable. There was
much argument in the briefs concerning seasonal use as
being consistent with the cultural patterns of the Natives.
But the actual testimony presented at the hearing by ap-
pellant’s witnesses, based on the relatively minor acquaint-
ence with Native village life of many to the rather extensive
experience of Hensel with a great number of villages, was
that Uyak was not a Native village.

2. The Appellant did not present a prima facie case that
thirteen Natives enrolled to Uyak did not use the village
site during 1970 as a place where they actually lived fora
period of time. To do so is a difficult burden, since neither
the required length of the period of time nor the required
manner of living at the site are specified by the regulations.
It has been argued by Respondents that seasonal visits or
use for very short periods are sufficient to meet the regu-
latory requirement. The Board does not now decide the
issue, but notes that there are large time gaps in the evi-
dence relating to observation of the site in 1970. Francisco
testified to a visit ‘‘sometime’’ in March and for ten days
April, Hensel to overflights on April 6, May 21, and August
23, and an anchorage off Uyak on April 30, and Holt to an
overflight on July 4. There was no evidence as to the months
of January, February, June, September, October. The evi-
dentiary gaps here are simply too large to permit an in-
ference that thirteen Natives enrolled to Uyak did not use
the village site in 1970 as a place where they actually lived
for a period of time.

126a

%. The Appellant presented a prima facie case that there
were not twenty-five or more Native residents of the village
on April 1, 1970. Thirty-one Natives are enrolled to Uyak.
None of them testified at the hearing. The printout, ob-
tained from Respondent BIA and admitted as Appellant’s
Exhibit 8 contains answers on place of residence elicited
from Native enrollees to Uyak on the official enrollment
forms.

The printout shows that 31 Natives stated that the village
of Uyak was their ‘‘permanent residence as of April 1,
1970’’. Under the heading on the forms reading ‘‘Your
Permanent Residence as of date you complete this form’?
five of the 31 Natives left the column blank and none of
the remaining 26 Natives stated or claimed the village of
Uyak. The forms were completed during 1972 or the first
part of 1973. Twenty-three of the Natives submitted the
forras on June 9, 1972, and stated that Kodiak or the vicinity
of Kodiak was their permanent residence on the date the
forms were completed. Under the hearing on the forms
‘‘Region and Villiage or City where you resided on April
1, 1970, if you resided there two or more years without
substantial interruption,’’ four of the 31 natives left the
column blank and none of the remaining 27 stated or claimed
the village of Uyak. Eighteen of the 31 Natives placed
Kodiak or the vicinity of Kodiak in this column.

Under the heading on the forms ‘‘Region and Village
or City where you previously resided for an aggregate of
10 years or more,’’ 11 of the 31 Natives left the column
blank and none of the remaining 20 Natives stated or
claimed the village of Uyak. Seven of the 31 Natives placed
Kodiak or the vicinity of Kodiak in this column.

In summary, 31 Natives stated that Uyak was their per-
manent residence as of April 1, 1970; that a place other
than Uyak was their permanent residence as of the date
the form was completed in 1972 or 1973; that on April 1,
1970, they resided at a place other than Uyak and had

127a

resided at other place for two or more years without sub-
stantial iterruption; and that they previously resided for
an aggregate of 10 years or more at a place other than
Uyak.

Of the 31 Natives who stated that Uyak was their per-
manent residence on April 1, 1970, not one indiceted even
that Uyak was his birthplace or the birthplace of an an-
cestor. Thus, none of the Natives who claimed, during the
enrollment process, that Uyak was their permanent resi-
dence on the critical date claimed the slightest ties to it
at any other time. An inference of non-use is properly
drawn from the printout, in conjunction with the testimony
of Appellant’s witnesses. This inference is sufficient to
raise a substantial doubt that the village of Uyak had 25
Native residents on April 1, 1970, within the meaning of
permanent residence as discussed herein. Appellant there-
fore met his burden of going forward with the evidence,

Decision

Appellant presented a prima facie case on two of the
issues raised in this appeal. Respondents did not present
a case at the hearing, but chose to rest their case at the
close of Appellant’s presentation.

Upon consideration of the record in this appeal, the
Board finds that (1) there were not 25 or more Native
residents of the village of Uyak on April 1, 1970; and (2)
the village of Uyak did not have on April 1, 1970, an
identifiable physical location evidenced by occupancy con-
sistent with the Natives’ own cultural patterns and lifestyle.

Therefore it is the decision of the Board that the village
of Uyak listed in section 11(b)(1), 43 USC section 1610
(b)(1) of the Act is not eligible to receive land benefits
under Sections 14(a) and (b), 43 USC sections 1613(a) and

(b) of the Act.
This represents a unanimous decision of the Board.

128a
Darep this 10th day of June, 1974, at Anchorage, Alaska.

/s/ Jupirn M. Brapy
Judith M. Brady, Chairman
Alaska Native Claims Appeal Board

/s/ Avpert P. Apams
Albert P. Adams, Board Member

/s/ Asicain F, Dunnine
Abigail F. Dunning, Board Member

/8/ Joun A. WALLER
John A, Waller, Board Member

Approvep: June 14, 1974

/s/ Rocers C. B. Morton
Secretary of the Interior

129a

APPENDIX F
Unitep States DEPARTMENT OF THE INTERIOR

ALASKA NATIVE CLAIMS APPEAL 30ARD
P. O. Box 2433
Anchorage, Alaska 99510

Strate or Auaska, ALasKA Conservation Society, ALASKA
ProressionaAL Hunters Assn., Inc., and Forest Servicr,
Unirep States Department or Acricutture, Appellants

V.

Vittace or Litnik, Konraa, Inc., and
Bureau or Invian Arrairs, Respondents

ANCAB #VE 74-25
ANCAB #VE 74-96
ANCAB #VE 74-101
ANCAB #VE 74-102
ANCAB #VE 74-106

Involving the eligibility of the Village of Litnik for
benefits under the Alaska Native Claims Settlement
Act of December 18, 1971.

DECISION
Preface

This is a decision on the eligibility of the village of
Litnik, Alaska, for status as a Native village under the
Alaska Native Claims Settlement Act of December 18,
1971, 43 U.S.G. Section 1601-1624 (Supp. II, 1972), herein-
after referred to as the Act, and the Secretary of the
Interior’s Rules and Regulations on Alaska Native Selec-
tions, 43 CFR Part 2650. Status as a village confers cer-
tain statutory benefits under the Act, including the right
to sclect substantial quantities of land and receive patent
conferring the surface rights associated with it. Subsurface

130a

rights to village lands may be patented to the regional
corporation for the region in which the village is located.

In accordance with an Order issued by the Alaska Native
Claims Appeal Board on June 28, 1974, an Administrative
Law Judge conducted a hearing on August 5, 1974, on the
matter of the eligibility of the Village of Litnik.

The parties were afforded an opportunity to file briefs
and recommended findings of fact and conclusions of law
with the Judge after receipt of the hearing transcript.

On August 30, 1974, the Judge issued a Recommended
Decision which sets forth the procedural, legal and factual
background of this decision.

Basis for Decision

The record compiled in this proceeding and now before
the Board consists of the BIA case file, the Board’s file
containing the Notice of Appeal, pleadings, briefs, and
motions and preliminary rulings thereon by the Board;
exhibits submitted by the parties and admitted into evi-
dence at the hearings; the hearing transcript; proposed
findings of fact and conclusions of law submitted by the
parties; and a recommended decision submitted by the
Administrative Law Judge to the Board. It is on this
record taken as a whole that the Board reaches its de-
cision,

Issues
The general issue in this case is whether Litnik meets

the village eligibility requirements of Section 11(b)(3) of
the Act and 43 CFR 2651.2. The specific issues are:

1. Whether the village of Litnik had 25 or more Native
residents on April 1, 1970, as shown by the census or other
evidence satisfactory to the Secretary?

2. Whether the village of Litnik had on April 1, 1970
an identifiable physical location evidenced by occupancy

13la

consistent with the Natives’ own cultural patterns and
life styles?

3, Whether at least 13 Natives who are enrolled resi-
dents of the village of Litnik used the village during 1970
as a place where they actually lived for a period of time?

4. Whether the village of Litnik is a traditional village
which was temporary unoccupied in 1970 because of an
Act of God or government authority occurring within the
preceding 10 years?

5. Whether the majority of the residents of the village
of Litnik are Natives?

Discussion

Respondents have made a motion to dismiss this appeal
on the basis that the Natives who are enrolled as residents
of the village of Litnik are necessary parties to the deter-
mination of the eligibility of the village for benefits under
Section 11(b)(3) of the Act. The Administrative Law
vudge denied respondents’ motion, The Board coneurs,

The principle question before the Board on this appeal
is whether the village qualifies for land selection benefits
under the Act. The Board has previously held that the
determinations of the Enrollment Coordinator are not
appealable to this Board, and therefore the Board does
not assume to change or correct the enrollment of indi-
viduals as shown on the Roll. Department of Natural Re-
sources, State of Alaska, et al, vy

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1781%3A1. Public record. Not legal advice.