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ALASKA NATIVE ASSN. OF OREGON v. MORTON

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CIVIL DIVISION


December 23, 1974

ALASKA NATIVE ASSOCIATION OF OREGON et al., Plaintiffs,
v.
Rogers C. B. MORTON et al., Defendants. ALASKA FEDERATION OF NATIVES, INTERNATIONAL et al., Plaintiffs, v. Rogers C. B. MORTON et al., Defendants

The opinion of the court was delivered by: GASCH

MEMORANDUM

 GASCH, District Judge.

 This matter is before the Court on cross-motions for summary judgment. It involves the construction of Section 7(c) of the Alaska Native Claims Settlement Act, 85 Stat. 688 et seq. (1971), 43 U.S.C. ยงยง 1601-1624, which provides for an election to determine whether a thirteenth region for non-resident Alaska Natives shall be established, and it involves the procedures of the Department of the Interior in carrying out the election.

 Plaintiffs are two organizations for Alaska Natives residing in States other than Alaska: the Alaska Native Association of Oregon (ANAO) and the Alaska Federation of Natives, International (AFNI), and ten non-resident Alaska Natives. Defendants are the Secretary of the Department of the Interior and its agencies which are responsible for the implementation of the Act, and two intervenor defendants, the Alaska Federation of Natives (AFN), an organization which represents ten of the twelve Alaska regional corporations, and the Aleut Corporation, one of the twelve regional corporations.

 In order to put the two legal issues before the Court in perspective, it is first necessary to review the Alaska Native Claims Settlement Act (the Act), especially that portion dealing with an election to determine whether a thirteenth region for non-resident Alaska Natives shall be established, and then describe the history of the election process.

 I. THE ACT.

 The purpose of the Alaska Native Claims Settlement Act is to meet the "immediate need for a fair and just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims." *fn1" "'Native' means a citizen of the United States who is a person of one-fourth degree or more Alaska Indian. . . ." *fn2" The Act declares that all such claims are extinguished *fn3" and, as part of the legislative settlement, establishes an Alaska Native Fund (the Fund), which consists of $962,400,000 to be distributed to the Natives as part of the compensation for their claims. *fn4"

 Pursuant to the Act, the State of Alaska was divided into twelve geographic regions "with each region composed as far as practicable of Natives having a common heritage and sharing common interests." *fn5" Regional Corporations for each of these twelve regions were thereafter established. *fn6" Each region was further subdivided into villages, and Village Corporations were established. *fn7" The Regional Corporations are the conduits through which the monies from the Fund are distributed to the Village Corporations and to the Natives who are stockholders of the corporations. *fn8"

 For the purpose of enrolling Natives in the various regions, the Act directed the Secretary of the Interior to prepare a roll of all living Alaska Natives by December 18, 1973. *fn9" The roll was to show where each Native resided on the date of the 1970 census enumeration, and, if the Native was a permanent resident of Alaska, he was to be enrolled in the corresponding region in Alaska. *fn10"

 The Act also provided that a thirteenth region and regional corporation would be established

 

if a majority of all eligible Natives eighteen years of age or older who are not permanent residents of Alaska elect . . . to be enrolled in a thirteenth region for Natives who are non-residents of Alaska. . . . *fn11"

 Therefore a non-resident Native might elect to be enrolled in one of the twelve Alaska regions or in a thirteenth region for non-resident Natives. *fn12" The thirteenth region, if established, would consist only of those non-resident Natives who had voted in favor of a thirteenth region. *fn13" If a thirteenth region were not established by a majority vote, each non-resident Native, regardless of his vote, would then be enrolled in one of the twelve Alaska regions *fn14" as one of "the class of stockholders who are not residents of . . . villages." *fn15"

 After completion of the enrollment process, the money in the Fund "shall be distributed at the end of each three months of the fiscal year among the Regional Corporations . . . on the basis of the relative numbers of Natives enrolled in each region." *fn16" Non-resident Natives enrolled in a thirteenth region, if established, would receive not less than 50 percent of their per capita share of the amount distributed to their thirteenth Regional Corporation from the Fund. *fn17" Non-resident Natives enrolled in one of the twelve Alaska regions would receive from that Regional Corporation not less than 45 percent during the first five-year period following December 18, 1971, and 50 percent thereafter of their per capita share of the amount distributed to their Regional Corporation from the Fund, and also their per capita share of "all other net income" of that Corporation. *fn18" Such "other net income" specifically includes that income derived from the Corporation's own investments and resource development and also its proportionate share of 70 percent of all Alaska Regional Corporations' revenues from timber resources and subsurface estates. *fn19" However,

 

an equitable portion of the amount distributed as dividends [to non-village-resident stockholders] may be withheld [by the Corporation] and combined with Village Corporation funds to finance projects that will benefit the region generally. *fn20"

 It is the opinion of the plaintiffs, who are seeking the establishment of a thirteenth region, that non-resident Natives would receive more money in dividends through a thirteenth regional corporation, even though such a corporation's income would be limited to the Fund, because money distributed through the twelve Regional Corporations would be deflected from the stockholders to projects to benefit the local region. Obviously, non-resident Natives would not benefit from such local projects.

 The defendants think that the additional income from the regions' resource development would more than compensate for any funding of local projects out of the Fund so that non-resident Natives would receive more money in dividends by belonging to one of the twelve Regional Corporations. The Court expresses no opinion as to which would be of greater financial benefit to non-resident Natives.

 II. THE ELECTION PROCESS.

 On March 17, 1972, the Secretary of the Interior issued regulations for the enrollment of Alaska Natives. Applications provided by the Bureau of Indian Affairs were to be completed by all Natives and submitted to the Coordinating Office in Anchorage, Alaska, by March 30, 1973. *fn21"

 1. Assistance.

 The regulations also provided as follows: *fn22"

 

Residents of Alaska: Enumerators shall be sent to all villages to assist in the completion and filing of applications and centers will be established in urban areas to furnish assistance in the completion and filing of applications. Persons who are missed by the enumerators may apply to the Coordinating Office by mail or in person.

 

Nonresidents of Alaska: Natives not residing in Alaska shall be furnished application forms, together with instructions for completing the forms, upon request made to the Commissioner, the Area Director, or the Coordinator.

 Enumerators were dispersed throughout Alaska to assist resident Natives in filling out the enrollment application. In the process of enrolling resident Natives, the enumerators discovered the names and addresses of Natives living outside of Alaska, and they mailed enrollment applications to them. Applications were also made available at all Area Offices of the Bureau of Indian Affairs. A public relations firm was retained to handle a media campaign designed to inform Natives living outside of Alaska about the Act. But non-resident Natives experienced difficulty in completing the application with only the assistance of the accompanying instruction sheets. Organizations of non-resident Natives sought the appointment of enumerators to assist Natives residing outside of Alaska. In Mid-February, 1973, just six weeks before the deadline for filing applications, nineteen Native enumerators were hired to serve Natives living outside of Alaska.

 2. The Enrollment Application.

 Non-resident Natives who procured enrollment forms received a packet containing a notice, an instruction sheet, and an application.

 The notice advised the recipient: *fn23"

 

This is your official enrollment form. . . . This form will be used to qualify you for your share of the Alaska Native Land Claim Settlement Act of 1971. . . . All completed applications must be returned and received by the Coordinating Officer: [address] not later than March 30, 1973. . . .

 

The non-resident Alaska Natives who live outside the State of Alaska will have the choice of establishing a 13th Region. The 13th Region will only come into existence if a majority of the non-resident Alaska Natives vote "yes" to be in the 13th Region. The only benefit members of the 13th Region will receive is a share of the $462.5 million in Federal funds and $500 million in revenues from the State of Alaska. Members of the 13th Region will not share in any of the land or revenues (money) derived from the yield of the 40 million acres of land that is owned by the Alaska Natives. If you choose to be enrolled in a village or region for which you qualify (see instructions, especially 16, on your enrollment form) you will be enrolled in that village or region of your choice if you vote "no." (Emphasis in original.)

 The enrollment application sought the usual general information in the first fifteen columns: names of the members of the family, birthdates, birthplaces, etc., and the applicants' degree of Native blood. *fn24"

 Column 16 of the application requested "Your Permanent Residence as of April 1, 1970." The accompanying instructions stated with reference to column 16: *fn25"

 

The place you name here is where you will be enrolled if you are found eligible under the requirements of the Act. You need not have been physically present in that place on April 1, 1970, but you must have some ties back to that place as outlined in Section 43h.1(k) of the regulations. (Emphasis in original.)

 Column 17 of the application requested "Your Permanent Residence as of date you complete this form." The accompanying instructions stated with reference to column 17:

 

If your permanent residence on April 1, 1970, and/or the date you file this form is outside the State of Alaska, questions 17 through 21 will determine the Region in which you are enrolled if you vote NO on the establishment of the 13th Region or if you vote YES and the 13th Region is not formed. Consult the enclosed map for approximate regional boundaries.

 Columns 18-21 of the application acquire data to determine, pursuant to the Act and the regulations, *fn26" a non-resident Native's region in the event that a thirteenth region is not created.

 Column 22 of the application asked, "Do you elect to establish and be enrolled in a 13th Region?" The accompanying instructions stated with reference to column 22:

 Section 7(c) of the Act provides:

 

"If a majority of all eligible Natives eighteen years of age or older who are not permanent residents of Alaska elect, pursuant to subsection 5(c), to be enrolled in the thirteenth region for Natives who are non-residents of Alaska, the Secretary shall establish such a region for the benefit of the Natives who elected to be enrolled therein, and they may establish a Regional Corporation pursuant to this Act."

 

The Joint Statement of the Committee of Conference states in Section I.B. 3:

 

"Natives who are not permanent residents of Alaska may, if they desire, organize a 13th Regional Corporation, rather than receive stock in one of the 12 Regional Corporations. The 13th Regional Corporation will receive its pro rata share of the $962,500,000 grant, but it will receive no land and will not share in the mineral revenues of the other Regional Corporations."

 Non-resident Natives were bewildered by these confusing and contradictory instructions. *fn27" The confusion was so great that Interior decided not to count column 17 at all. *fn28" And the instructions accompanying column 22 gave no indication of any possible advantages to belonging to a thirteenth region, as those advantages have been alleged by the plaintiffs in this suit. *fn29" Only disadvantages were noticed.

 3. The Deadline for Filing Applications.

 For this reason the Department of the Interior, prior to the March 30 deadline, began telling non-resident Natives that if they filed their enrollment applications on time, they would be permitted to complete them later. *fn30"

 The first extension date for amending applications was May 4, 1973, since such amendments "could be entered on the computer in time to appear on the May 15 printout." *fn31"

 Then the date was extended to June 1. *fn32"

 Still later "a determination was made" by the Department of the Interior that amendments should be filed by May 9. *fn33"

 Finally, on August 8, 1973, an announcement appeared in the Federal Register that the deadline for filing amendments to enrollment applications was August 15, 1973. *fn34" A new regulation provided that

 

Amendments to enrollment applications, or amended applications, will not be considered originally or on appeal unless filed (received by the Enrollment Office) on or before August 15, 1973. All such amendments or amended applications received subsequent to August 15, 1973, will be returned to the applicant without action. *fn35"

 The Secretary's accompanying explanation stated that the August 15 deadline was "required in order to enable the processing of all applications, including amendments thereto, to be completed by the statutory deadline of December 18, 1973. *fn36"

 4. Action on the Amendments.

 In spite of this regulation, amendments filed after May 9 were rejected because they were "not received in time to appear in the May 15 printout to villages." *fn37" They could only be counted if the Native chose to appeal the rejection. But "the 'appeals packet' accompanying the Enrollment Coordinator's rejection notice may [have] appeared rather formidable," *fn38" especially to poorly educated Natives.

 In late July, 1973, the Enrollment Coordinator John Hope instructed his staff "not to change any thirteenth-region (column 22) votes because the statute requires the election to be made 'at the time he files an application for enrollment' . . . ." *fn39" (Emphasis added.) As a result, previously granted amendments of column 22, filed before May 9, were rejected, and the Natives' votes were changed back to their original vote. *fn40" Yet at the same time Secretary of the Interior Morton wrote Senator Jackson and Representative Meeds to assure them that all amendments received by May 9 were accepted. *fn41"

 5. The First Tabulations.

 On November 8, 1973, the Department of the Interior announced that a thirteenth region would not be established because a majority of all eligible non-resident Alaska Natives had not elected to be enrolled in such a region.

 

A tabulation made by the Bureau of Indian Affairs' data center in Albuquerque, N.M. . . . indicates that of the 5,774 Natives eligible to vote for a 13th region, only 2,375 elected to be so enrolled. *fn42"

 This led Senator Jackson to raise questions about the conduct of the election, including the propriety of including those who had abstained from voting (by leaving column 22 blank) in calculating the total vote. Secretary Morton explained in a letter to the Senator that

 

It is . . . the Department's position that in calculating whether a majority of the eligible Natives elected to be enrolled in a thirteenth region, we have no legal alternative to the inclusion in the determinative formula of such Natives who had, at the time of filing their enrollment applications, the right or privilege of voting on the question. In no other way can we determine whether "a majority of all eligible Natives" favored such enrollment and the consequent establishment of a thirteenth region. *fn43"

 Two further tabulations were made to include applications which had been on appeal at the time the preceding tabulation was announced. Neither changed the outcome. On December 3 the second tabulation was announced: n44 In favor of a 13th region 2,535 Against a 13th region 2,797 Abstaining 559 Total eligible voters 5,891

19741223

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