FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COOK INLET REGION, INC., 

Plaintiff-Appellee, No. 11-35252

v. D.C. No.  3:09-cv-00256-RRB ROBERT W. RUDE; HAROLD

RUDOLPH, OPINION

Defendants-Appellants. 

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted

June 25, 2012—Anchorage, Alaska

Filed August 20, 2012

Before: Alfred T. Goodwin, William A. Fletcher, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge William A. Fletcher

9471
COUNSEL

Frederick William Triem, Law Offices of Fred W. Triem,

Petersburg, Alaska, for the appellants.

Jahna M. Lindemuth, Dorsey & Whitney LLP, Anchorage,

Alaska, William D. Temko, Munger, Tolles & Olson LLP,

Los Angeles, California, for the appellee.

COOK INLET REGION v. RUDE 9473
OPINION

W. FLETCHER, Circuit Judge:

Plaintiff-Appellee Cook Inlet Region, Inc. (“CIRI”) is an

Alaska Native Regional Corporation formed under the Alaska

Native Claims Settlement Act (“ANCSA”). DefendantsAppellants Robert W. Rude and Harold F. Rudolph are shareholders of CIRI and former members of CIRI’s Board of

Directors. 

In 2009, Plaintiff CIRI filed suit against Defendants, alleging that they had violated ANCSA and Alaska law. The district court held that it had federal question jurisdiction over

the ANCSA claims and supplemental jurisdiction over the

state-law claims. On appeal, Defendants challenge the court’s

holding that it had subject matter jurisdiction over the

ANCSA claims. We affirm the district court.

I. Background

Congress enacted ANCSA in 1971, two years after the discovery of oil in Prudhoe Bay. Alaska Native Claims Settlement Act, Pub. Law No. 92-203, 8 Stat. 688 (1971) (codified

as amended at 43 U.S.C. §§ 1601-1629h); see also Martha

Hirschfield, Note, The Alaska Native Claims Settlement Act:

Tribal Sovereignty and the Corporate Form, 101 Yale L.J.

1331, 1335-36 (1992) (“Oil companies eager to exploit Alaska’s natural resources were unwilling to begin development

until title to the land had been quieted.”). Under ANCSA, all

Native claims to Alaskan land based on aboriginal use and

occupancy were extinguished, and Native Alaskans were

granted monetary compensation and title to forty million acres

of land. See John F. Walsh, Note, Settling the Alaska Native

Claims Settlement Act, 38 Stan. L. Rev. 227, 227 (1985).

ANCSA transferred title of the settlement land to twelve

regional corporations and numerous village corporations cre9474 COOK INLET REGION v. RUDE
ated by the Act. 43 U.S.C. §§ 1606-07. Under ANCSA, only

Native Alaskans could be shareholders in these corporations

for the first twenty years of their existence. This restriction on

alienation was designed to ensure that Native Alaskan lands

would not be sold at low prices as soon as title cleared.

§ 1606(h)(1) (1982); see also Walsh, 38 Stan. L. Rev. at 232-

33 (discussing reasons for alienability restriction).

In 1990 and 1991, as the twenty-year restriction neared its

end, Congress amended ANCSA to broaden restrictions on

the transfer of corporate stock. See Little Bighorn Battlefield

National Monument, Pub. L. No. 102-201, § 301, 105 Stat.

1631, 1633 (1991); Alaska Native Claims Settlement Act,

Amendment, Pub. L. No. 101-378, § 301, 104 Stat. 468, 471-

72 (1990). Under current law, shareholders in regional corporations established under ANCSA cannot sell or otherwise

transfer their stock except under limited circumstances. 43

U.S.C. § 1606(h)(1)(B)-(C). 

Lifting ANCSA’s alienability restrictions on stock requires

an amendment to the regional corporation’s articles of incorporation. See § 1629c(b). ANCSA provides two mechanisms

by which these restrictions can be lifted. One of them is a

shareholder vote taken at the request of a shareholder petition.

§ 1629c(b)(I)(B)(ii).

In 2009, Defendants solicited shareholder signatures for

two petitions. The first petition sought a vote to lift the alienability restrictions. The second petition sought to convene a

special shareholder meeting to consider six advisory resolutions concerning dividends, elections, financial reporting, voting rights, and compensation of senior management. The

petitions suggested that Plaintiff’s board of directors and

senior management were mismanaging the corporation.

Defendants sent four mailers soliciting signatures for the petitions. 

Plaintiff filed suit, alleging two claims under ANCSA and

two claims under Alaska law. Plaintiff moved for summary

COOK INLET REGION v. RUDE 9475
judgment on all claims. Defendants did not oppose the

motion. The district court granted summary judgment to

Plaintiff on all claims. Defendants filed a motion for relief

from judgment, arguing that the court lacked federal-question

subject matter jurisdiction. They also argued that the court

erred in granting summary judgment on the second of Plaintiff’s two ANCSA claims. The district court concluded that it

had subject matter jurisdiction. However, it changed its mind

on the merits of the second of the two ANCSA claims and

ruled against Plaintiff on this claim. 

After entry of final judgment, Defendants appealed, challenging only the jurisdictional ruling. 

II. Jurisdiction and Standard of Review

We have appellate jurisdiction under 28 U.S.C. § 1291. We

review de novo district court determinations of subject matter

jurisdiction. Puri v. Gonzales, 464 F.3d 1038, 1040 (9th Cir.

2006).

III. Discussion

Plaintiff alleged two claims under ANCSA. The first claim

alleged that defendants violated 43 U.S.C. § 1629b(c). This

section permits the holders of 25 percent of the voting power

of a Native corporation to petition the board of directors to lift

alienability restrictions. The section provides that Alaska law

governing the solicitation of proxies “shall govern solicitation

of signatures for a petition,” with exceptions not applicable

here. § 1629b(c)(1)(B). Plaintiff alleged that defendants’

solicitation materials for the petitions contained false and

materially misleading statements, in violation of Alaska law

that has been incorporated into § 1629b(c). See Alaska Stat.

§ 45.55.160. 

The second claim alleged that defendants violated 43

U.S.C. §§ 1629b(b)(2)(A) and 1629c(b)(2). These sections

9476 COOK INLET REGION v. RUDE
require that certain information be disclosed in petitions to lift

alienability restrictions. These sections do not incorporate any

Alaska law.

[1] The general federal question jurisdiction statute, 28

U.S.C. § 1331, grants federal district courts “original jurisdiction of all civil actions arising under the Constitution, laws,

or treaties of the United States.” “A case arise[es] under federal law within the meaning of § 1331 . . . if a well-pleaded

complaint establishes either that federal law creates the cause

of action or that the plaintiff’s right to relief necessarily

depends on resolution of a substantial question of federal

law.” Empire Healthchoice Assurance, Inc. v. McVeigh, 547

U.S. 677, 689-90 (2006) (internal quotation marks omitted).

We conclude that the district court had federal question subject matter jurisdiction over Plaintiff’s two ANCSA claims

because “federal law creates the cause of action” in both

claims. Id. at 690. 

Defendants make four arguments why there is no federal

question jurisdiction over Plaintiff’s first claim. First, they

argue that Plaintiff’s claim under § 1629b(c)(1)(B) “does not

allege any serious dispute over the validity, construction or

effect[ ] of the ‘federalized’ state law . . . that requires the

experience and uniformity” of a federal forum. Second, they

argue that federal question jurisdiction over the first claim

would disrupt the proper federal-state balance. Third, they

argue that the claim does not raise a substantial federal question. Fourth, they argue that Congress’ failure to create an

explicit cause of action to challenge the solicitation of signatures indicates that it did not intend to grant federal jurisdiction over claims arising under the provision. 

[2] Defendants’ first and second arguments conflate the

sometimes difficult jurisdictional question posed when federal

law is embedded in a state-law claim with the much more

straightforward question posed when state law is embedded in

a federal-law claim. There is federal question jurisdiction over

COOK INLET REGION v. RUDE 9477
a state-law claim only if it “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal

forum may entertain without disturbing any congressionally

approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g &

Mfg., 545 U.S. 308, 314 (2005). By contrast, there is federal

question jurisdiction over a federal-law claim simply by virtue

of its being a claim brought under federal law, whether or not

it incorporates state law.

[3] Plaintiff’s first claim required the district court to apply

Alaska law governing proxy solicitations to determine the

legality of Defendants’ shareholder petitions under ANCSA.

But Plaintiff’s claim was not brought as a state-law claim.

Rather, Plaintiff brought a federal law claim under a provision

of ANCSA that incorporated state law. Plaintiff did not bring,

and indeed could not have brought, a claim directly under

Alaska law because the relevant provision of Alaska law governs proxy solicitations rather than shareholder petitions. See

Alaska Stat. § 45.55.160 (prohibiting “untrue statement[s] of

material fact” in documents filed under proceedings in Chapter 55 of the Alaska Securities Act). 

Defendants’ third and fourth arguments are essentially the

same as their argument that there is no federal question jurisdiction over Plaintiff’s second claim. That argument is that

both ANCSA claims fail on the merits, and that there is therefore no federal question jurisdiction over them.

[4] Defendants’ argument fails because there is subject

matter jurisdiction over federal-law claims unless they are

“obviously frivolous.” Sea-Land Serv., Inc. v. Lozen Int’l,

LLC, 285 F.3d 808, 814 (9th Cir. 2002) (internal quotation

marks omitted). It is hard to show frivolousness. There is federal question jurisdiction unless the federal claim is “so insubstantial, implausible, foreclosed by prior decisions of [the

Supreme] Court, or otherwise completely devoid of merit as

not to involve a federal controversy.” Steel Co. v. Citizens for

9478 COOK INLET REGION v. RUDE
a Better Env’t, 523 U.S. 83, 98 (1988) (internal quotations

omitted). “Any non-frivolous assertion of a federal claim suffices to establish federal question jurisdiction, even if that

claim is later dismissed on the merits.” Cement Masons

Health & Welfare Trust Fund for N. Cal. v. Stone, 197 F.3d

1003, 1008 (9th Cir. 1999). 

[5] Neither of Plaintiff’s ANCSA claims was frivolous.

Defendants can hardly contend that Plaintiff’s first claim was

frivolous, given that the district court found Defendants liable

on that claim. The district court eventually concluded that

Plaintiff’s second claim failed on the merits, but that claim

was not “insubstantial” or “implausible.”

[6] Defendants make a final argument, applicable to both

ANCSA claims. They contend that ANCSA itself limits federal jurisdiction over claims brought under it. Section 1601(f)

states that “no provision of this chapter shall be construed to

constitute a jurisdictional act, to confer jurisdiction to sue, nor

grant implied consent to Natives to sue the United States or

any of its officers with respect to the claims extinguished by

the operation of the chapter.” 43 U.S.C. § 1601(f). Defendants

have misread this section. It limits litigation challenging the

elimination of Native Alaskan land claims under ANCSA, but

it does not limit § 1331 federal question jurisdiction over

other claims brought under ANCSA.

Conclusion

[7] We hold that there is federal question jurisdiction under

§ 1331 over Plaintiff’s ANCSA claims.

AFFIRMED. .

COOK INLET REGION v. RUDE 9479