Aleknagik Natives Ltd. v. United States

886 F.2d 237, 1989 WL 107967
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 22, 1989
DocketNo. 87-4188
StatusPublished
Cited by2 cases

This text of 886 F.2d 237 (Aleknagik Natives Ltd. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aleknagik Natives Ltd. v. United States, 886 F.2d 237, 1989 WL 107967 (9th Cir. 1989).

Opinion

TANG, Circuit Judge:

The Native Alaskan communities of English Bay and Port Graham are located in the southwestern tip of the Kenai Peninsula in Alaska, approximately 140 miles south of Anchorage. The State of Alaska recognizes the Village Councils in English Bay and Port Graham as the governing entities in these unincorporated communities.

On July 17, 1987, the district court ordered the transfer of title of unoccupied townsite lands 1 held by a Townsite Trustee to the Village Councils. On appeal, the government challenges this order, arguing that such a transfer is inconsistent with the [238]*238Alaska Native Townsite Act (“ANTA”) and with a Department of the Interior regulation which permits the transfer of such lands only to incorporated entities.

The Village Councils argue that the regulation frustrates the purpose of the ANTA as well as the Federal Land Policy and Management Act (“FLPMA”), and that in the absence of municipal corporations in these communities, the Village Councils are the appropriate entities to receive title to the land.

We affirm and hold that the district court did not err in ordering the transfer of title.

I.

A.In 1891, Congress enacted the Alaska Townsite Act (“ATA”) permitting the creation of towns out of public lands in Alaska by having townsite trustees hold land in trust. The ATA directed the Department of the Interior to “provide by regulation for the proper execution of the trust in favor of the inhabitants of the town site ...” 26 Stat. 1099.

Initial federal regulations established that the ATA included Alaskan Natives, Non-Mineral Entries in Alaska, 12 Pub. Lands Dec. 583 (1891). Natives, not then recognized as U.S. citizens, however, protested that the ATA oppressed them by permitting taxation of their property without affording them full participation in government. See Wrangell Townsite, 37 Pub.Lands Dec. 334, 334-35 (1908) (“[The Natives] have no voice in the government of the town.... They also object to being taxed for the government of the town or for the support of schools, as their children are not permitted to attend said schools.”). The regulations were amended in 1908 to prohibit expressly the conveyance of town-site lots to Alaska Natives pending “future legislation.” Alaskan Townsites — Status and Rights of Indian Occupants, 37 Pub. Lands Dec. 337, 338 (1908).

In 1916, the Secretary of the Interior again amended the regulations and provided for the disposal of residual townsite lands in non-Native, incorporated communities:

After the public sale and upon proof of incorporation of the town, all lots then remaining unsold will be deeded to the municipality, and all municipal public reserves will, by a separate deed, be conveyed to the municipality in trust for the public purposes for which they were reserved.

Circular Instructions Relating to the Acquisition of Title to Public Lands in the Territory of Alaska, 45 Pub.Lands Dec. 227, 244 (1916). This regulation (“1916 regulation”) remains in effect today, 43 C.F.R. § 2565.7 (1987), and is at the crux of the instant appeal.

B. In 1926, Congress passed the ANTA to extend the townsite laws to Alaska Natives. 44 Stat. 629. Alaska Governor George Alexander Parks had argued that “[tjhere is nothing that would give [the Alaska Natives] more encouragement in their progress toward municipal government in their own settlements than the ownership of the land.” Report of the Governor of Alaska to the Secretary of the Interior 37-38 (1925). One ANTA regulation provided that a trustee be designated to accomplish the purposes of the law. Survey and Disposition of Indian Possessions in Trustee Town Sites, Alaska, 51 Pub.Lands Dec. 501, 503 (1926). This regulation still applies to the townsites of Port Graham and English Bay. 43 C.F.R. § 2564.0-4(b).

C. On October 21, 1976, in passing the FLPMA, Congress repealed the ATA and the ANTA. 90 Stat. 2744, 2789-90 (1976). Section 701 of the FLPMA contained a general savings clause which protected land use rights existing at the time of the enactment of the FLPMA. Pub.L. 94-579. We held that the FLPMA closed all town-sites to new claims, but preserved “valid existing rights.” Aleknagik Natives, Ltd. v. United States, 806 F.2d 924, 927 (9th Cir.1986), aff'g 635 F.Supp. 1477 (D.Alaska 1985).

II.

In 1977, three Native village corporations, established pursuant to the Alaska [239]*239Natives Claims Settlement Act (“ANCSA”), 43 U.S.C. § 1607(a), and other plaintiffs,2 brought a quiet title and ejectment action against the United States, the Secretary of the Interior, and the trustee for the town-sites located within the various communities including English Bay and Port Graham (the “federal defendants”).3 The district court dismissed the case for failure to exhaust administrative remedies. Aleknagik Natives, Ltd. v. Andrus, No. A-77-200 (D.Alaska August 16, 1978). On appeal, we reversed and remanded. 648 F.2d 496 (9th Cir.1980). Following the remand, the Port Graham and English Bay Village Councils (“Village Councils”) intervened, and adopted the position of the federal defendants in arguing that the lands were available under the ANCSA, 43 U.S.C. § 1610(a)(1), and that the Townsite Trustee had an ongoing responsibility to administer the lands, despite the repeal of the townsite acts.

The district court granted summary judgment in favor of the federal defendants. 635 F.Supp. 1477 (D.Alaska 1985). The court held that unoccupied lands within the boundaries of a townsite were not available to ANCSA village corporations, and also that lands within pre-FLPMA townsites were unavailable to individual members of the communities for whose benefit the trust was established. On appeal, we affirmed. 806 F.2d 924 (9th Cir. 1986). One question then remained unanswered: whether unincorporated Native village councils are entitled to receive title to these residual lands.

The Village Councils filed a Motion for Reconsideration with the district court, asking whether village councils in unincorporated communities are eligible to receive a conveyance of residual townsite lands. The district court stayed consideration of the motion for reconsideration and ordered the Village Councils to make formal application to the Townsite Trustee for the transfer of the lands. The Townsite Trustee reaffirmed her position that she had no authority to transfer the land to unincorporated entities. The district court reinstated the Motion for Reconsideration, and on July 17, 1987, ordered the Trustee to convey the residual trust lands to the Village Councils. The government appeals.

III.

A. The central question in this appeal is whether the 1916 regulation, which provides that residual townsite lands be transferred to incorporated entities, bars the unincorporated Village Councils from taking title to the approximately 357 acres of land at issue. We affirm the district court and hold that the Village Councils may obtain title.

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Aleknagik Natives Limited v. United States
886 F.2d 237 (Ninth Circuit, 1989)

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Bluebook (online)
886 F.2d 237, 1989 WL 107967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aleknagik-natives-ltd-v-united-states-ca9-1989.