coupled with comments indicating his clear impression that all that could be done was not being done and that some of the results 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 investigated and criticized 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 interference with a quasi-judicial 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, 172 U.S. App. D.C. 51, 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 constituted an impermissible congressional interference with the administrative process. This situation presents a disturbing conflict between the Congress and the Executive Branch, and it is the responsibility of the Judiciary in this instance to prevent an impermissible 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 preserve the integrity of the judicial aspect of the administrative process." 354 F.2d at 964. It cannot be gainsaid that the "appearance of impartiality -- the sine qua non of American judicial justice --" was sacrificed in this instance. Id. "[Private] litigants [have a right] to a fair trial and, equally important, [a] right to the appearance of impartiality, which cannot be maintained unless those who exercise 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 influenced by the congressional intrusion, the evidence before 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 Department 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 administrative 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 properly so, upon a prompt resolution and settlement of the Natives' claims. Key deadlines still must be met by December 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 removed. Moreover, this is not a question of, in effect, removing the administrative body altogether from decision making, since there is an untainted decision by the Secretary's delegate, the Bureau of Indian Affairs Area Director, 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 responsibility to the Natives at least of a quasi-trust character (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.Ill.1950) (three-judge court), aff'd, 341 U.S. 412, 71 S. Ct. 806, 95 L. Ed. 1062 (1951).
III. 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 proceedings required in any of these cases, it is advisable in the interests of a prompt ultimate determination for the Court to indicate briefly its 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 disadvantage 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 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 governmental 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. III, 1973), do not refer 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). Moreover, 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 eligibility of a village is properly in issue. This, however, is a two-way street and once the matter is opened up the Secretary or his delegate cannot set aside the residence determination in the roll and decrease the number of village residents without also adjusting the figures to add additional residents who were incorrectly excluded. Since the Secretary did refuse to consider increasing the number of residents in the case of Pauloff Harbor, his decision in this regard was erroneous.
Another issue of some moment involves the three listed villages of Uyak, Salamatof and Pauloff Harbor. These villages are presumptively eligible under the statute. However, the Secretary by regulation added eligibility requirements beyond those specified in the Act, see 43 C.F.R. § 2651.2(b) (discussed supra). No challenge to this is raised by the unlisted villages, which must be "established" villages to qualify for benefits, 43 U.S.C. § 1610(b)(3) (A) (Supp. III, 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 administrative 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 for summary judgment are therefore granted, and defendant's cross-motions are denied. An appropriate Order is attached.
For the reasons stated in the accompanying Memorandum which sets forth the Court's findings of fact and conclusions 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 are denied. Accordingly, in each instance the final decision of the Area Director, Juneau Area Office of the Bureau of Indian Affairs, shall be reinstated and shall constitute the final determination as to village eligibility under the Alaska Native Claim Settlement Act, 43 U.S.C. § 1601 et seq. (Supp. III, 1973).