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April 19, 1973

Charles EDWARDSEN, Jr., Individually and as Executive Director of the Arctic Slope Native Association, et al., Plaintiffs,
Rogers C. B. MORTON, Secretary of the United States Department of the Interior, and his successors and predecessors in Office, et al., Defendants

Gasch, District Judge.

The opinion of the court was delivered by: GASCH

GASCH, District Judge.

This case came on for consideration on the defendants' motion for summary judgment and the entire record herein. Plaintiffs are certain Native villages on the Arctic Slope (also termed the North Slope) of Alaska, the Arctic Slope Native Association, the Inupiat Community of the Arctic Slope, and certain individual Inupiat Eskimos living in the region concerned. Defendants are Rogers C. B. Morton, the Secretary of Interior (hereafter called "the Secretary") and three other Department of Interior officers responsible for public lands management or Indian affairs at the time this action was brought, namely, Louis R. Bruce, Commissioner, Bureau of Indian Affairs; Harrison Loesch, Assistant Secretary for Public Land Management; and Burton Silcock, Director, Bureau of Land Management. The successors and predecessors in office of the Secretary, Commissioner Bruce, and Assistant Secretary Loesch are also named as defendants.

 The issues in this action are not susceptible of easy capsulization. At the risk of considerable oversimplification, plaintiffs' claims can be said to concern actions by defendants which allegedly violated plaintiffs' rights in Arctic Slope lands and waters by facilitating allegedly unlawful transfers of land to the State of Alaska and by issuing purported authorizations for third-party trespasses on the lands and waters in question. Plaintiffs have not moved for summary judgment because they properly believe issues of material fact must be resolved in their favor before the relief they request could be granted.

 Defendants raise a number of defenses in their motion for summary judgment. Their principal defense is that plaintiffs never had rights of the kind alleged and even if they did, any suit based directly or indirectly on those asserted rights is barred by the Alaska Native Claims Settlement Act of 1971, 85 Stat. 688 (hereafter termed Settlement Act).

 Interests of great importance are ultimately at stake in this action. Seen against the dark backdrop of this nation's often callous treatment of Native Americans, plaintiffs' claims are especially compelling. On the other hand, defendants rightly emphasize the desire of Congress to bring to an end a period of intolerable uncertainty about the potential impact of Native claims on land titles and mineral leases in Alaska.

 I. Background

 The legal issues are more easily grasped if the history out of which they have arisen is at least briefly sketched in. The Arctic Slope of Alaska where the Inupiat Eskimos live was occupied by their ancestors for many hundreds of years before them. *fn1" In this area they, like their ancestors, have sustained themselves by fishing, hunting, and trapping. When Alaska was acquired by the United States from Russia in 1867, the treaty, in unfortunate language, provided as follows:

The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The 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. *fn2"

 The United States, through Congress, did proceed to enact laws containing provisions that concerned the Alaskan Natives. Among other acts, it recognized the Natives' right not to be disturbed in the possession of lands they occupied until such time as Congress should act to extinguish their occupancy rights, *fn3" and it authorized the Secretary of Interior to issue deeds to Alaskan Natives for townsites under certain conditions. *fn4" However, no treaties were negotiated, and the creation of reservations, although authorized, was negligible. The lands involved in this action are not reservation lands.

 In 1958, the admission of Alaska to the Union was accomplished by the enactment of the Alaska Statehood Act of July 7, 1958, 72 Stat. 339, as amended, 73 Stat. 141 (hereafter termed Statehood Act). The Statehood Act provided for selections by the State of over 100 million acres, to be chosen from public lands that were "vacant, unappropriated, and unreserved at the time of their selection." *fn5" Selections from public lands other than national forest lands required the approval of the Secretary of Interior, the officer with authority to patent such lands to the State. *fn6" Section 6(g) of the Act further provides: "Following the selection of lands by the State and the tentative approval of such selection by the Secretary of Interior or his designee, but prior to the issuance of final patent, the State is hereby authorized to execute conditional leases and to make conditional sales of such selected lands." *fn7" The Act also contained a provision, Section 4, which the legislative history indicates was intended to maintain the status quo as to Native property rights until Congress should act further on the matter. *fn8"

 During the 1960's, the State made selections of large areas of land in, among other places, the Arctic Slope of Alaska, a region in which the existence of large oil deposits had been suspected. During this same period, protests from various Alaskan Native organizations were mounting in the face of State selections of land in which the Natives claimed rights they believed to be inconsistent with valid State selections. The proportion of the State land area affected by these protests was great. Thus, a report issued in 1968 by the Federal Field Committee for Development Planning in Alaska indicated that of 272 million acres in the public domain, Alaskan Natives had claimed title, based on continuous use and occupancy, to 250 million acres; and of 12 million acres "in the process of selection by State under the terms of the Statehood Act," Alaskan Natives claimed all but 100,000 acres. *fn9" In the Arctic Slope Area, which is the subject of the action herein, exhibits filed by plaintiffs indicate that Native claims covered virtually the entire region. *fn10"

 Partly in response to such protests, an informal land freeze was instituted by Secretary of Interior Udall late in 1966; issuances of mineral leases on federal lands and approvals or tentative approvals of State selections were suspended pending Congressional determination of Native land rights. *fn11" Large areas of land had been selected by the State before the freeze, however, and reports of oil deposits in one area selected -- the Prudhoe Bay region on the Arctic Slope -- were confirmed in 1968. The Secretary had given tentative approval to selections in this area, and the State moved quickly to exploit its good fortune, executing a sale of leases to oil companies in 1969 for a price in excess of 900 million dollars.

 In the meantime there was a movement in Congress to enact legislation which would end the uncertainty about the nature and extent of Native rights in land already selected by the State and land which the State might wish to select upon the termination of the freeze. Finally, in 1971, in order to provide "a fair, just, and final settlement of all land claims of Alaskan Natives, Native villages, and groups," Congress passed the Settlement Act. *fn12" As will be apparent from the discussion below of the legal issues, defendants believe that this Act effectively bars all of plaintiffs' claims; and plaintiffs contend not only that the Act does not bar their claims but that it enables them to select large sections of the oil-rich lands on the Arctic Slope which had previously been transferred to Alaska. *fn13"

 II. Plaintiffs' Claims.

 Plaintiffs' claims fall into two main categories: (1) challenges to the validity of certain titles to land and interests in leasable minerals, which allegedly rest on unlawful acts by the defendants; and (2) claims for compensation for alleged trespasses by third parties who, it is asserted, entered plaintiffs' lands under color of the allegedly invalid titles or of permits, licenses, and the like unlawfully issued by defendants. As subsequent discussion will reveal, defendants' summary judgment motion is sufficient to defeat some, but not all, of plaintiffs' claims. For that reason it is necessary to review the claims in some detail. To clarify the theories of the Amended Complaint, the Court will, in the following discussion, be drawing on plaintiffs' brief in opposition to the defendants' motion.

 It is necessary at the outset to define Native land rights as plaintiffs see them before reviewing plaintiffs' theories regarding the ways in which defendants have allegedly violated these rights. Plaintiffs claim that by ancient authority Native Americans have enjoyed exclusive possessory rights in their aboriginal lands even after the European conquest of America. Plaintiffs cite the early cases of Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L. Ed. 681 (1823), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832), and a long succession of later cases as demonstrating that these rights -- sometimes referred to as "aboriginal title" or "Indian title" -- are based simply on continued use and occupancy of lands, and can be extinguished only by Congressional action. Plaintiffs contend further that even though aboriginal title does not, in their view, depend on Congressional recognition for its validity, Cramer v. United States, 261 U.S. 219, 229, 43 S. Ct. 342, 67 L. Ed. 622 (1923), such recognition does exist in the case of the Arctic Slope lands they have claimed. One of the alleged manifestations of Congressional recognition is Section 8 of the Organic Act of May 17, 1884, 23 Stat. 24, 26, which provides:

That the said district of Alaska is hereby created a land district, and a United States land-office for said district is hereby located at Sitka. . . . [The] Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.
SEC. 4. As a compact with the United States said State and its people do agree and declare that they forever disclaim all right and title to any lands or other property not granted or confirmed to the State or its political subdivisions by or under the authority of this Act, the right or title to which is held by the United States or is subject to disposition by the United States, and to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives; that all such lands or other property (including fishing rights), the right or title to which may be held by said natives or is held by the United States in trust for said natives, shall be and remain under the absolute jurisdiction and control of the United States until disposed of under its authority except to such extent as the Congress has prescribed or may hereafter prescribe, and except when held by individual natives in fee without restrictions on alienation: Provided, That nothing contained in this Act shall recognize, deny, enlarge, impair, or otherwise affect any claim against the United States, and any such claim shall be governed by the laws of the United States applicable thereto; and nothing in this Act is intended or shall be construed as a finding, interpretation, or construction by the Congress that any law applicable thereto authorizes, establishes, recognizes, or confirms the validity or invalidity of any such claim, and the determination of the applicability or effect of any law to any such claim shall be unaffected by anything in this Act: And provided further, That no taxes shall be imposed by said State upon any lands or other property now owned or hereafter acquired by the United States or which, as hereinabove set forth, may belong to said natives, except to such extent as the Congress has prescribed or may hereafter prescribe, and except when held by individual natives in fee without restrictions on alienation. *fn14"

 These rights which plaintiffs contend are based on use and occupancy and strengthened by Congressional recognition are said to include the right to exclude all parties except those whose entry is authorized by Congress and the ownership of a beneficial interest in all exploitable resources such as timber and minerals. On the latter point they cite United States v. Shoshone Tribe, 304 U.S. 111, 58 S. Ct. 794, 82 L. Ed. 1213 (1938), and The Tlingit and Haida Indians of Alaska v. United States, 389 F.2d 778, 182 Ct. Cl. 130 (1968).

 Given the existence of these rights, plaintiffs assert that title to the land selections made by Alaska, pursuant to the Statehood Act, in the Arctic Slope region never rightfully passed, even provisionally, to the State. According to Section 6 of the Act, such selections could be made only from lands that were "vacant, unappropriated, and unreserved at the time of their selection," and the Secretary of Interior could give his approval only to selections meeting these criteria. Insofar as the Secretary tentatively approved selections of lands in which plaintiffs possessed rights based on aboriginal title, such approvals were void ab initio, plaintiffs assert. Moreover, they contend, the oil leases sold by Alaska on Arctic Slope lands at a price of approximately 912 million dollars were similarly void because, under Section 6(g) of the Statehood Act, tentative approval by the Secretary of the selections of land on which leases were conditionally sold, was a prerequisite for the sales.

 In addition, plaintiffs allege that all tentative approvals by the Secretary of Arctic Slope selections violated the Secretary's fiduciary duty to protect the interests of Native Americans, whose welfare is a federal trust responsibility, *fn15" and that the approvals violated certain Department of Interior regulations. In particular, it is alleged that the Secretary violated the following regulations: 43 C.F.R. § 2091.6-3 (1972), providing that "Lands occupied by Indians, Aleuts, and Eskimos in good faith are not subject to entry or appropriation by others"; *fn16" and 43 C.F.R. § 2091.5 providing that

Managers will ascertain by any means in their power whether any public lands in their districts are occupied by Indians and the location of their improvements, and will suspend all applications made by others than the Indian occupants, upon lands in the possession of Indians who have made improvements of any value whatever thereon.

 Finally, it is claimed that the Secretary's tentative approvals were void because they were granted in violation of plaintiffs' rights to due process under the Administrative Procedure Act, 5 U.S.C. §§ 551-559 (1967), and the Fifth Amendment. In particular it is asserted that they did not receive adequate notice of the approval proceedings, an adequate opportunity to make their claims known, or an opportunity to be represented by counsel at a fair hearing, even though the approvals affected interests of great importance to them.

 In making their claims arising from alleged trespasses on their lands, plaintiffs challenge not only the tentative approvals of land selections and leases sold thereunder but also various land use permits, licenses, and other authorizations issued by the Secretary or other defendants which, plaintiffs assert, purported to authorize the entry of third parties on lands and waters used or occupied by plaintiffs. Specifically it is alleged that the issuance of such authorizations to oil companies, construction companies, and others led to "acts of waste, trespass, and destruction" on plaintiffs' lands, including takings of gravel, desecration of graveyards where plaintiffs' ancestors lay buried, and reduction of plaintiffs' annual whale catch. (The damage to the whale catch was allegedly inflicted in 1970, when certain third parties, acting under licenses granted by the Department of Interior, conducted onshore and offshore seismic blasting in the vicinity of Icy Cape and Wainwright Village.)

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