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Seldovia Native Association Inc. v. United States

May 14, 1998


Appealed from: United States Court of Federal Claims. Judge Miller.

Before Rich, Lourie, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Bryson, Circuit Judge.

Seldovia Native Association, Inc. ("Seldovia"), a corporation organized under the Alaska Native Claims Settlement Act, brought this takings action seeking compensation from the United States for the value of certain lands in Alaska. Seldovia claims that recent administrative decisions of the Department of the Interior deprived Seldovia of its interest in the lands and constituted both a taking and a breach of the government's fiduciary obligations. The United States contends that no taking or breach of fiduciary duty occurred and that Seldovia's claims are barred by the statute of limitations. The Court of Federal Claims agreed with the United States and dismissed Seldovia's claims. Seldovia Native Ass'n v. United States, 35 Fed. Cl. 761, modified, 36 Fed. Cl. 593 (1996). We affirm.


The Alaska Native Claims Settlement Act ("ANCSA"), Pub. L. No. 92- 203, 85 Stat. 668 (1971) (codified as amended at 43 U.S.C. §§ 1601- 1629f), is a complex piece of legislation that fundamentally altered land rights in Alaska. The Act sought to achieve "a fair and just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims." 43 U.S.C. § 1601(a). Several years of hearings and detailed studies commissioned by Congress preceded the enactment of the ANCSA. See, e.g., Federal Field Committee for Development Planning in Alaska, Alaska Natives and the Land (1968). Reports accompanying the final bills in the House and Senate indicate that Congress believed it had struck a fair balance among the competing interests. See S. Rep. No. 92-405, at 85-86 (1971); H.R. Rep. No. 92- 523, at 4-6 (1971). The Act was well received by the major groups that stood to benefit from it, including the Alaskan Natives. See, e.g., Robert D. Arnold, Alaska Native Land Claims at v, 145-46 (1976).

In the period leading up to the enactment of the ANCSA, there was substantial pressure on Congress to achieve a comprehensive resolution of Native claims. The terms of Alaska's entrance into the Union in 1959 granted the State the right to select up to 103 million acres of public lands. See Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 339 (1958). Lands to which the "right or title . . . may be held by Eskimos, Indians, or Aleuts," however, were exempted from selection by the State. See Alaska Statehood Act § 4. Because the legal status of Native title to many lands in Alaska was uncertain, Native groups filed protective land claims encompassing approximately 300 million acres of land, or 80% of all the land in Alaska. In response to those claims, the federal government instituted a "land freeze" policy that halted the transfer of lands to the State or to private parties. That policy, however, could not be maintained indefinitely, particularly after the discovery of oil in northern Alaska in the 1960s. See S. Rep. No. 92- 405, at 73, 96-98; Alaska Natives and the Land, at 442, 525-27.

The ANCSA authorized the transfer to Native Alaskans of 40 million acres of land and $962.5 million in direct payments and mineral royalties. See S. Rep. No. 92-581, at 38-39 (1971). In exchange, all Native land claims in Alaska based on aboriginal occupancy were permanently extinguished. See 43 U.S.C. § 1603. Congress declared that "the settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation [and] with maximum participation by Natives in decisions affecting their rights and property." 43 U.S.C. § 1601(b). In fact, implementation of the ANCSA has fallen considerably short of that objective. Instead of producing a quick and comprehensive resolution of Native land claims, many of the ANCSA's provisions have required extensive administrative involvement and generated protracted legal struggles. This litigation, which Seldovia initiated some 20 years after the enactment of the ANCSA to challenge the partial resolution of its land claims, exemplifies the difficulties that have been encountered.

The ANCSA did not convey land or money directly to individual Alaskans, but instead provided for distributions to be made to corporations that reflected pre-existing Native organizations. The ANCSA required each of the approximately 200 Native villages to create "village corporations" to receive land grants. See 43 U.S.C. § 1607. The plaintiff in this case, Seldovia Native Association, Inc., is one such village corporation. On a larger scale, regional corporations were established to mirror existing regional Native associations. See 43 U.S.C. § 1606. The regional corporation to which the residents of Seldovia belong is Cook Inlet Region, Inc. ("CIRI").

To effectuate land distribution to the village corporations, the ANCSA established a three-step regimen -- withdrawal, selection, and conveyance. The Secretary of the Interior was required to withdraw certain public lands for transfer. Withdrawals were made in units of "townships," a standard land surveying unit of 36 square miles (or 23,040 acres). The Secretary was required to withdraw all available public lands in the township in which any Native village was located, as well as all public lands in two concentric rings of townships around the village. See 43 U.S.C. § 1610(a). The withdrawal for each village would consist of all available public lands in the 25-township area including and surrounding the village.

Each village corporation was entitled to select a certain number of acres from the withdrawn land, based on the size of its Native population. See 43 U.S.C. § 1613(a). These selections were known as "12(a) selections," a reference to the pertinent section of the ANCSA. See ANCSA § 12(a), 43 U.S.C. § 1611(a). Seldovia's population entitled it to 12(a) selections totaling 115,200 acres, or the equivalent of five townships.

In some instances, the initial land withdrawals in the 25-township region were insufficient to allow the village corporation to select its full 12(a) entitlement. In heavily populated areas, for example, the supply of public land was often quite limited. Land withdrawals were also limited to those public lands that were not already subject to "valid existing rights," see 43 U.S.C. § 1610(a), i.e., lands that had not already been designated to be used for parks, for strategic reserves, or for other purposes.

When the initial land withdrawals were inadequate, the Secretary was authorized to make further withdrawals, known as "deficiency withdrawals," from the nearest available public lands. The Secretary was directed, "insofar as possible," to withdraw public lands "of a character similar to those on which the village is located and in order of their proximity to the center of the Native village." 43 U.S.C. § 1610(a)(3)(A). In making deficiency withdrawals, the Secretary was required to withdraw three times the amount of the deficiency remaining after the initial withdrawal from the 25-township area. The village corporation could then complete its 12(a) selections from the deficiency withdrawals.

The ANCSA also provided a second means of land distribution to the village corporations. After each village corporation completed its 12(a) selections, section 12(b) of the ANCSA called for the Secretary to allocate additional lands to the various regional corporations based on the Native population of each region, until the sum of the 12(a) and 12(b) entitlements totaled 22 million acres. See ANCSA § 12(b), 43 U.S.C. § 1611(b). The regional corporations were required to reallocate the 12(b) acreage among the native villages in the region "on an equitable basis after considering historic use, subsistence needs, and population." 43 U.S.C. § 1611(b). As in the case of the 12(a) selections, if the supply of public lands in the initial withdrawal area surrounding a village proved insufficient to satisfy the village's 12(b) entitlement, the village corporation could select its remaining acreage from lands withdrawn by the Secretary in deficiency withdrawals.

Finally, the ANCSA provided for some land to be distributed to the regional corporations for their own use. The regional corporations were entitled to proportionate shares of 16 million acres and to the subsurface estate in all the lands selected by the village corporations in their respective regions. See 43 U.S.C. §§ 1611(c), 1613(f); S. Rep. No. 92-581, at 35.

After the Secretary withdrew a particular parcel of land and a village or regional corporation selected it, the ANCSA contemplated that the Secretary would "immediately" convey the land by issuing a patent for it. See 43 U.S.C. § 1613 (a), (e). In fact, however, the offices responsible for issuing the patents needed time to survey the land, ascertain that the selections were valid, and sort out any conflicting claims. As a result, the actual conveyance of land under the ANCSA often proceeded slowly.

The process of land withdrawal and selection did not go smoothly in the Cook Inlet region. The Cook Inlet region is the most developed and heavily populated area of Alaska. Much of the public land in the region had already been patented to the State of Alaska and therefore was not available for selection by the village corporations. See Alaska Natives and the Land, at 500. Several Native villages, including Seldovia, were located along the coast of the inlet, so that many of the encircling townships were completely or partially submerged. Some of the villages were also located in close proximity to one another so that their natural withdrawal areas overlapped. As a result, many of the village corporations in the region were unable to select their full statutory land entitlements from the townships surrounding their villages. The Secretary was thus forced to make deficiency withdrawals from other public lands in order to satisfy the villages' 12(a) and 12(b) entitlements.

Although the deficiency withdrawals for the Cook Inlet region contained sufficient acreage for each village corporation to complete its 12(a) and 12(b) selections, there were gross disparities in the value of the withdrawn lands. Some withdrawals along the western shore of Cook Inlet contained valuable timber resources and were highly desirable, while other tracts were located along glacial plains or in inaccessible mountainous areas. Rather than attempt to allocate lands of roughly equal value for each village in the region, the Secretary of the Interior decided to allow all the village corporations to make selections from the entire deficiency withdrawal pool.

The village corporations in the Cook Inlet region encountered considerable difficulty in attempting to comply with the ANCSA rules and deadlines governing land selection and distribution. In fact, the entire selection process appears to have been plagued by imperfect communication and misunderstandings between the Department of the Interior, CIRI, and the various village corporations. Eventually, the ANCSA had to be amended to resolve the problems flowing from the 12(a) and 12(b) selections in the Cook Inlet region. Those amendments gave rise to the claims at issue in this case.


Seldovia's takings claims are based on land that it chose in its 12(a) and 12(b) selections. Before any action was taken on Seldovia's selections, legislative amendments to the ANCSA redefined the pool of lands available for selection by the village corporations. As a result, some lands initially chosen by Seldovia were no longer available. Seldovia argues that its initial act of selection was sufficient to give it compensable rights in the selected lands and that later decisions by the Department of the Interior rejecting Seldovia's claims constituted a compensable taking of those lands.

Resolving the takings claims requires us to consider two distinct issues. The first is whether Seldovia's claims are barred by the statute of limitations. The government argues that, for any particular parcel, Seldovia's claim accrued on the effective date of the legislative amendment to the ANCSA that affected the Disposition of that parcel. Seldovia argues that its claim with respect to a particular parcel did not accrue until the date of the Interior Department's decision denying Seldovia's rights to that parcel or transferring it to a third party. If the former, then Seldovia's claims are barred by the statute of limitations. If the latter, then Seldovia's claims are timely. The second issue concerns the extent to which Seldovia's act of selection gave it compensable property rights in the selected properties. That issue turns on whether the process of selection under the ANCSA sufficiently fixes property rights in identifiable parcels of land.

Our analysis of the ANCSA amendment that affected Seldovia's 12(b) selections leads us to conclude that Seldovia's principal takings claims for the 12(b) selections arose when the amendment went into effect in 1978. As to those selections, there is no need to determine whether selection alone is sufficient to confer vested rights.

With respect to Seldovia's 12(a) selections, we hold that Seldovia's claims are not subject to the statute of limitations bar. Nonetheless, we conclude that those selections did not give rise to compensable property rights in the selected lands, for two reasons. First, we hold that the land selections made under the authority of the ANCSA did not have sufficient fixity or convey sufficient rights to support a takings claim. Second, many of Seldovia's 12(a) selections failed to comply with the requirements of the ANCSA and failed to give rise to property rights for that reason as well.

We address the statute of limitations issues first because they are jurisdictional. See Bray v. United States, 785 F.2d ...

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