AKIACHAK NATIVE COMMUNITY, et al., Plaintiffs, v. Kenneth SALAZAR, Secretary of the Interior, et al., Defendants, and The State of Alaska, Intervenor.
Civil Action No. 06-969 (RC)
United States District Court, District of Columbia.
March 31, 2013.
935 F. Supp. 2d 195
RUDOLPH CONTRERAS, District Judge.
Daniel G. Steele, United States Department of Justice, Washington, DC, for Defendants.
Elizabeth Jeanne Barry, J. Anne Nelson, State of Alaska Department of Law, Anchorage, AK, for Intervenor.
MEMORANDUM OPINION
RUDOLPH CONTRERAS, District Judge.
Four tribes of Alaska Natives and one individual Native brought this suit to challenge the Secretary of the Interior‘s decision to leave in place a regulation that treats Alaska Natives differently from other native peoples. The challenged regulation governs the taking of land into trust under Section 5 of the Indian Reorganization Act,
dures “do not cover the acquisition of land in trust status in the State of Alaska.”
I. BACKGROUND
The land claims of Alaska Natives remained unresolved for the first century of our history in Alaska. The Treaty of Cession, by which Russia conveyed Alaska to the United States, provided that “[t]he uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.” Treaty of Cession, U.S.-Russia, art. 3, Mar. 30, 1867, 15 Stat. 542. When the Organic Act of 1884 established a civil government in Alaska, it also declared “[t]hat the Indians or other persons in said district [that is,
Congress enacted a series of laws providing land for Alaska Natives without resolving their claims of aboriginal right. A reservation was established by Congress in 1891 for the Metlakatla Indians, who had recently moved to Alaska from British Columbia. See Metlakatla Indian v. Egan, 369 U.S. 45, 48 (1962). In the years that followed, other reserves were established by executive order. See COHEN‘S HANDBOOK OF FEDERAL INDIAN LAW § 4.07[3][b][iii], at 337–38 (Nell Jessup Newton ed., 2012); DAVID S. CASE & DAVID A. VOLUCK, ALASKA NATIVES AND AMERICAN LAWS 81–110 (3d ed. 2012) (both discussing the history of reservation policy in Alaska). While those reserves were being established, Congress enacted Alaska Native Allotment Act, Pub. L. No. 59-171, 34 Stat. 197 (1906), and the Alaska Native Townsite Act, Pub. L. No. 69-280, 44 Stat. 629 (1926). The Allotment Act allowed Alaska Natives to acquire title to as much as one hundred and sixty acres of land that they used and occupied, while the Townsite Act “provid[ed] for the patenting of lots within Native townsites.” United States v. Atlantic Richfield Co., 435 F. Supp. 1009, 1015 (D. Alaska 1977), aff‘d, 612 F.2d 1132 (9th Cir. 1980). “Both acts placed restrictions on the title conveyed so that lands could not be alienated or taxed until ... certain federally prescribed conditions were met.” CASE & VOLUCK at 113; see also Atlantic Richfield, 435 F. Supp. at 1015 (“Native townsite residents received a restricted deed, inalienable except by permission of the townsite trustee.“).
In 1934, Congress enacted the Indian Reorganization Act, Pub. L. No. 73-383, 48 Stat. 984. Section 5 of the IRA provided that:
The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands ... within or without existing reservations, including trust or otherwise restricted allotments ... for the purpose of providing land for Indians.
48 Stat. 985 (codified at
In 1971, Congress enacted the Alaska Native Claims Settlement Act, Pub. L. No. 92-203, § 2(b), 85 Stat. 688, “a comprehen-
sive
the settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska[.]
ANCSA, § 2(b), 85 Stat. 688 (codified at
All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy ... are hereby extinguished....
All claims against the United States, the State [of Alaska], and all other persons that are based on claims of aboriginal right, title, use, or occupancy of land or water areas in Alaska, or that are based on any statute or treaty of the United States relating to Native use and occupancy ... are hereby extinguished.
ANCSA, § 4(b)–(c) (codified at
ANCSA repealed the Allotment Act, although the Secretary retained the power to process pending applications. ANCSA, § 18(a) (codified at
In the years after the Claims Settlement Act, the question arose whether the Secretary‘s land-into-trust authority had survived ANCSA and FLPMA, or whether one or both of those statutes had withdrawn a portion of that power. In 1978, the Secretary proposed a regulation to govern the taking of land into trust; the proposed rule made no special mention of Alaska. See Land Acquisitions, 43 Fed. Reg. 32,311 (July 19, 1978). Several months after that proposed rule was published, the Associate Solicitor for Indian Affairs signed an opinion letter addressing the question of whether the Secretary could take former reservation land into trust. The Associate Solicitor concluded that, in light of the Claims Settlement Act, “it would ... be an abuse of the Secretary‘s discretion to attempt to use Section 5 of the IRA (which, along with §§ 1, 7, 8, 15, and 17 of the IRA still apply to Alaska pursuant to the unrepealed portion of the Act of May 1, 1936) to restore the former Venetie Reserve to trust status.” AR 3 (Memorandum from Thomas W. Fredericks, Associate Solicitor, Indian Affairs, Department of the Interior (“Fredericks Memo.“) at 3 (Sept. 15, 1978)). The Associate Solicitor explained that:
The intent of Congress [in ANCSA] to permanently remove all Native lands in Alaska from trust status is unmistakable. The declaration of policy states that “the settlement should be accomplished ... without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges....”
43 U.S.C. § 1601(b) .
In analyzing the declaration of policy, the Senate Report stated: “A major
purpose of this Committee and the Congress is to avoid perpetuating in Alaska the reservation and the trustee system.” S. Rep. No. 405, 92nd Cong., 1st Sess. (1971) at 108. This theme was oft repeated in the floor debates....
The structure and legislative history of Section 19 itself precludes the restoration of former reservations to trust status. Section 19 revokes all reservations (except for Metlakatla) and directs that the land be conveyed to the ANSCA village corporation, not to the IRA entities. It does not allow Natives to vote for continued trust status....
Also significant is the repeal, in Section 704(a) of the Federal Land Policy and Management Act of 1976, 90 Stat. 2743, of Section 2 of the Act of May 1, 1936, 49 Stat. 1250,
25 U.S.C. § 496 , which ... gave the Secretary the authority to designate certain lands in Alaska as Indian reservations....In conclusion, Congress intended permanently to remove from trust status all Native land in Alaska except allotments and the Annette Island Reserve.
Id. at 1–3; see also Sansonetti Memo. at 112 n. 276, AR 246 (“In 1978, the Acting Solicitor accepted the conclusion of the Associate Solicitor, Division of Indian Affairs, that although § 5 of the IRA,
When the final land-into-trust regulation was published in 1980, its preamble noted that, during the notice-and-comment period “[i]t was ... pointed out that the Alaska Native Claims Settlement Act does not
In 1994, three tribes of Alaska Natives petitioned the Secretary to revise the land-into-trust regulations to “include within [their] scope all federally recognized Alaska Native tribes.” AR 275 (Petition for Rulemaking at 1 (Oct. 11, 1994)). The Secretary put that petition out for notice and comment, describing it as a request that the Secretary “remove the portion of the existing regulation that prohibits the acquisition of land in trust status in the State of Alaska for Alaska Native villages other than Metlakatla.” Land Acquisitions, 60 Fed. Reg. 1,956, 1,956 (Jan. 5, 1995).
Although the Secretary proposed a revision to the land-into-trust regulation in 1999, he noted that “[t]he proposed regulations would ... continue the bar against taking Native land in Alaska in trust.” Acquisition of Title to Land in Trust, 64 Fed. Reg. 17,574, 17,578 (Apr. 12, 1999). The Secretary explained that, “[t]he regulatory bar to acquisition of title in trust in Alaska in the original version of these regulations was predicated on an opinion of the Associate Solicitor, Indian Affairs
... which concluded that the Alaska Native Claims Settlement Act (ANCSA) precluded the Secretary from taking land into trust for Natives in Alaska (again, except for Metlakatla). Although that opinion has not been withdrawn or overruled, we recognize that there is a credible legal argument that ANCSA did not supersede the Secretary‘s authority to take land into trust in Alaska under the IRA.” Id. at 17,577–78 (citations omitted).
The Secretary noted that “if land were taken in trust by the Secretary, such trust land then would qualify as Indian country and an Alaskan tribe would have all the powers that pertain within Indian country” and invited “comment on the continued validity of the Associate Solicitor‘s opinion and issues raised by the petition noticed at 60 FR 1956 (1995).” Id. at 17,578.
In 2001, the Secretary published a final rule and his Solicitor withdrew the Associate Solicitor‘s opinion. The Solicitor announced that although “the Associate Solicitor for Indian Affairs concluded that the Alaska Native Claims Settlement Act (ANCSA) precludes the Secretary from taking land in trust for Alaska Natives except for members of the Metlakatla Indian Community.... I have concluded that there is substantial doubt about the validity of the conclusion reached in the 1978 Opinion.” AR 619 (Memorandum from John Leshy, Solicitor, Department of the Interior (“Leshy Memo.“) at 1 (Jan. 16, 2001)). The Solicitor explained his conclusion as follows:
Among other things, the Associate Solicitor found “significant” that in 1976 Congress repealed section 2 of the Indian Reorganization Act (IRA). That section had extended certain provisions of the IRA to Alaska, and had given the Secretary the authority to designate certain lands in Alaska as Indian reservations. See
U.S.C. § 704(a) , 90 Stat. 2743, re-
pealing
Because of my substantial doubt about the validity of the conclusion in the 1978 Opinion, and in order to clear the record so as not to encumber future discussions over whether the Secretary can, as a matter of law, and should, as a matter of policy, consider taking Native land in Alaska into trust, I am hereby rescinding the Associate Solicitor‘s 1978 Opinion.
Leshy Memo. at 1–2, AR 619–20. Although that opinion was withdrawn, the “Department ..., in its final Part 151 regulations ... decided in its sound discretion to continue in place the bar against taking Native land in Alaska into trust (other than Metlakatla).” AR 620. The preamble to the revised regulation announced that,
the position of the Department has long been, as a matter of law and policy, that Alaska Native lands ought not to be taken in trust. Therefore, the Department has determined that the prohibition in the existing regulations on taking Alaska lands into trust (other than Metlakatla) ought to remain in place for a period of three years during which time the Department will consider the legal and policy issues involved in determin-
ing whether the Department ought to remove the prohibition on taking Alaska lands into trust. If the Department determines that the prohibition on taking lands into trust in Alaska should be lifted, notice and comment will be provided.
Acquisition of Title to Land in Trust, 66 Fed. Reg. 3,452, 3,454 (Jan. 16, 2001). The revised regulation amended the “prohibition on taking Alaska lands into trust,” id., to read, “We will not accept title to land in trust in the State of Alaska, except for the Metlakatla Indian Community of the Annette Island reserve of Alaska or its members,” id. at 3,460 (to be codified at
After delaying its effectiveness several times, the Secretary withdrew the revised land-into-trust rule later that same year. See Acquisition of Title to Land in Trust, 66 Fed. Reg. 56,608, 56, 609 (Nov. 9, 2001). This suit followed.
II. LEGAL STANDARD
“[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law,” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), and the “complaint, properly read ... presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action,” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993); accord Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009); Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C. Cir. 1999);
James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996). The district court‘s review “is based on the agency record and limited to determining whether the agency acted arbitrarily or capriciously,” Rempfer, 583 F.3d at 865, “or otherwise not in accordance with law,”
III. ANALYSIS
A. Statutory Authority to Take Alaska Land Into Trust
Despite the length and complexity of the history recounted above, the legal questions in this case are relatively straightforward. The first question is whether the Secretary still possesses the statutory authority to take land into trust for the benefit of Alaska Natives outside of Metlakatla.1 Alaska land-into-trust authority was conferred in 1936, Act of May 1, 1936, § 1, 49 Stat. 1250 (codified at
plicitly repealed. And unlike some other claims settlement acts, ANCSA did not explicitly revoke the Secretary‘s land-into-trust authority. Cf. Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 5(e), 94 Stat. 1785, 1791 (codified at
The plaintiffs argue that, absent the explicit repeal of the Secretary‘s Alaska land-into-trust authority—either by an amendment to the 1936 Act or a provision of the sort found in the Maine Claims Settlement Act—that authority should be understood to have survived ANCSA. After many ambiguous pronouncements and years of internal debate, the Secretary now agrees. Compare Fredericks Memo. at 3, AR 3 (“Congress intended permanently to remove from trust status all Native land in Alaska except allotments and the Annette Island Reserve.“) and Leshy Memo. at 1, AR 619 (concluding that there is “a serious question as to whether the
The State of Alaska takes the position that the Claims Settlement Act implicitly repealed the Secretary‘s statutory authority to take Alaska land into trust outside of Metlakatla. “While a later enacted statute ... can sometimes operate to amend or even repeal an earlier statutory provision ... ‘repeals by implication are not favored’ and will not be presumed unless the ‘intention of the legislature to repeal [is] clear and manifest.‘” Nat‘l Ass‘n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007) (quoting Watt v. Alaska, 451 U.S. 259, 267 (1981)) (brackets in original). Because of this “cardinal rule” of statutory construction, Morton v. Mancari, 417 U.S. 535, 549 (1974) (quoting Posadas v. Nat‘l City Bank, 296 U.S. 497, 503 (1936)), a court “will not infer a statutory repeal ‘unless the later statute “expressly contradict[s] the original act“” or unless such a construction ‘is absolutely necessary ... in order that [the] words [of the later statute] shall have any meaning at all,‘” Nat‘l Ass‘n of Home Builders, 551 U.S. at 662 (quoting Traynor v. Turnage, 485 U.S. 535, 548 (1988), which quotes Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976), which in turn quotes THEODORE SEDGWICK, THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 98 (2d ed. 1874)) (alterations in original); see also Hunter v. FERC, 711 F.3d 155, 160 (D.C. Cir. 2013) (noting the “strong presumption against implied repeals“); Fogg v. Gonzales, 492 F.3d 447, 453 (D.C. Cir. 2007) (applying the “interpretive norm against implied repeals“).
The State points first to ANCSA‘s extinguishment of “[a]ll claims against the United States, the State [of Alaska], and all other persons that are based on claims of aboriginal right, title, use, or occupancy of land ... or that are based on any
Congress understood ANCSA § 4(c) to “extinguish all claims by Alaska Natives, as Alaska Natives, to land in Alaska, whether the claim originated from aboriginal title ... or was based on a statutory property right,” as the State has argued, Defs.’ Mot. [Dkt. # 76] at 26, suggests that Congress did not understand ANCSA‘s extinguishment of claims to sweep as broadly as the State would have it. (The subsequent, explicit repeal of the Townsite Act and section 2 of the 1936 Act, see FLPMA, § 704(a), 90 Stat. 2792, would have been similarly redundant under the State‘s interpretation.) And, finally, the State‘s position would require the court to conclude that ANCSA eliminated the Secretary‘s authority to take land in trust for the benefit of Metlakatla Indians, whose land claims were extinguished along with all other claims by Alaska Natives. If a petition to have land taken into trust is, as the State argues, a “claim[] against the United States ... based on [a] statute or treaty of the United States relating to Native use and occupancy,” ANCSA, § 4(c) (codified at
The State does not argue with any particular force that petitions to have land taken into trust are “claims” within the usual meaning of that word, and the court
The State turns to ANCSA‘s declaration of congressional purpose, which indicates that “the settlement should be accomplished ... without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges.” Id. § 2(b) (codified at
creating no new trust land, and the intention of its drafters and proponents,4 many of whom associated trust land with paternalism and dependency,5 to the conclusion that the Claims Settlement Act necessarily prevents the Secretary from taking additional Alaska land into trust.6
This statement of purpose could only effect an implicit repeal if it was in “irreconcilable conflict” with the Secretary‘s land-into-trust authority, Branch v. Smith, 538 U.S. 254, 273 (2003) (quoting Posadas, 296 U.S. at 503), or to infer a repeal of that authority was “absolutely necessary in order that the words of the later statute shall have any meaning at all,” Nat‘l Ass‘n of Home Builders, 551 U.S. at 662 (brackets, ellipses, and internal quotation marks omitted). Although the Claims Settlement Act “sought to end the sort of federal supervision over Indian affairs that had previously marked federal Indian policy,” Venetie, 522 U.S. at 523–24, the terms of the settlement are “capable of co-existence” with the power to take Alaska land into trust, see Traynor, 485 U.S. at 548,
the settlement. Because it is possible to give effect to both ANCSA and the statute giving the Secretary land-into-trust authority in Alaska, it is the court‘s obligation to do so.9
The text of ANCSA and its structure, read alongside FLPMA, suggest that the Secretary retains the authority to take Alaska land into trust. Congress explicitly—and, on the State‘s view, redundantly—repealed the Allotment Act, the Townsite Act, and, the Secretary‘s authority to establish reservations in Alaska. Congress did not explicitly eliminate the grant of authority to take Alaska land into trust. If the Secretary‘s authority to take land into trust had been implicitly repealed, it would follow that his authority to establish reservations was repealed by an even stronger implication. But Congress felt the need to explicitly repeal the Secretary‘s reservation authority in FLPMA. And the simple fact that the statute conferring land-into-trust authority in Alaska survives is a strong indication that the Secretary‘s authority to take Alaska land into trust also survives.10
B. Regulatory Authority
i. Effect of 25 C.F.R. § 151.1
The land-into-trust regulations state that they “do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or it[s] members.”
The court “owe[s] the Secretary ‘substantial deference‘” for his interpretation of his own regulation. Tozzi v. U.S. Dep‘t of Health & Human Servs., 271 F.3d 301, 311 (D.C. Cir. 2001) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)). To adopt his reading, the court “need not find that the agency‘s construction is the only possible one, or even the one that the court would have adopted in the first instance.” Id. (quoting Wyo. Outdoor Council v. United States Forest Serv., 165 F.3d 43, 52 (D.C. Cir. 1999)); see also Thomas Jefferson, 512 U.S. at 512 (“Our task is not to decide which among several competing interpretations best serves the regulatory purpose.“). Instead, the court must “give the agency‘s interpretation ‘controlling weight,‘” Tozzi, 271 F.3d at 311 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)), “unless an ‘alternative reading is compelled by the regulation‘s plain language or by other indications of the Secretary‘s intent at the time of the regulation‘s promulgation,‘” id. (quoting Consolidation
Coal Co. v. Fed. Mine Safety & Health Review Comm‘n, 136 F.3d 819, 822 (D.C. Cir. 1998)) (internal quotation marks and citation omitted in original); accord Thomas Jefferson, 512 U.S. at 512; Gardebring v. Jenkins, 485 U.S. 415, 430 (1988).
The mere fact that “the Secretary‘s interpretation” of a regulation is first announced “in the form of a legal brief ... does not ... make it unworthy of deference.” Auer v. Robbins, 519 U.S. 452, 462 (1997); see also Nat‘l Wildlife Fed‘n v. Browner, 127 F.3d 1126, 1129 (D.C. Cir. 1997) (“The mere fact that an agency offers its interpretation in the course of litigation does not automatically preclude deference to the agency.“). As the D.C. Circuit has explained, “[i]t]here are at least three preconditions for applying this so-called Auer deference.” Drake v. FAA, 291 F.3d 59, 68 (D.C. Cir. 2002). One precondition is that “there must be ‘no reason to suspect that the interpretation does not reflect the agency‘s fair and considered judgment on the matter in question.‘” Id. (quoting Auer, 519 U.S. at 462); see also Bigelow v. Dep‘t of Defense, 217 F.3d 875, 878 (D.C. Cir. 2000). “In conducting this inquiry,” a court must “consider whether the agency has ‘ever adopted a different interpretation of the regulation or contradicted its [current] position....‘” Drake, 291 F.3d at 69 (quoting Nat‘l Wildlife, 127 F.3d at 1129).
When the Secretary promulgated
katla Indian Community.” Land Acquisitions, 45 Fed. Reg. at 62,034. Since that time, he has said that “the current regulations bar the acquisition of trust title in land in Alaska, unless an application for such acquisition is presented by the Metlakatla Indian Community or one of its members.” Acquisition of Title to Land in Trust, 64 Fed. Reg. at 17,577; see also Acquisition of Title to Land in Trust, 66 Fed. Reg. at 3,454 (discussing “the bar in the existing regulations to the acquisition of trust title in land in Alaska (other than for the Metlakatla Indian Community or its members)“). He has also referred to this bar as a “prohibition.” Acquisition of Title to Land in Trust, 66 Fed. Reg. at 3,454 (discussing “the prohibition in the existing regulations on taking Alaska lands into trust (other than Metlakatla)“); see also Land Acquisitions, 60 Fed. Reg. at 1,956 (referring to
The position that the Secretary has taken here—that the Alaska exception does not prohibit him from taking Alaska land into trust outside of Metlakatla—is contradicted both by evidence of his understand-
ing
The Alaska exception represents the Secretary‘s considered judgment that he will not take Alaska land into trust outside of Metlakatla, as his repeated characterizations and the withdrawn regulation make clear. Whether this judgment can be accurately described as a “bar” is, finally, beside the point. The question is whether it is legally valid.
ii. Legality of 25 C.F.R. § 151.1
The plaintiffs argue that the Alaska exception is “not in accordance with law,”
Any regulation or administrative decision or determination of a department or agency of the United States that is in existence or effect on May 31, 1994, and that classifies, enhances, or diminishes the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes by virtue of their status as Indian tribes shall have no force or effect.
The Secretary makes two attempts to counter this argument. First, he notes that
The Secretary‘s second argument is that
The Secretary does not deny that his regulation diminishes the privileges available to tribes of Alaska Natives (except for the Metlakatlans) relative to the “privileges ... available to all other federally recognized tribes by virtue of their status as Indian tribes.”
The court will order briefing as to the scope of the remedy in this case: whether it is only the Alaska exception that is deprived of “force or effect,” or whether some larger portion of the land-into-trust regulation must fall.
IV. CONCLUSION
For the reasons set out above, the plaintiffs’ motions for summary judgment will be granted, and the State‘s and the Secretary‘s motions will be denied. An order for additional briefing on the question of the appropriate remedy will follow.
RUDOLPH CONTRERAS
UNITED STATES DISTRICT JUDGE