Alaska Native Allotments: Conflicts with Utility Rights-of-way Have Not Been Resolved through Existing Remedies
Released: 2004-10-07T00:00:00

Letter

Background

For over a century, there have been controversies surrounding the status and use of lands involving Alaska Natives. For generations, Alaska Natives have used the land to hunt, fish, and gather wild plants for food. Land use was seasonal, and the intensity of its use depended on the availability of these subsistence resources. The 1867 Treaty of Cession transferred all of the lands and waters of Alaska from Russia to the United States and made them public domain. However, the treaty failed to clearly define the status of Alaska Natives, their rights, or their ownership of land. “That the Secretary of the Interior is hereby authorized and empowered, in his discretion and under such rules as he may prescribe, to allot not to exceed one hundred and sixty acres of nonmineral land in the district of Alaska to any Indian or Eskimo of full or mixed blood who resides in and is a native of said district, and who is the head of a family, or is twenty-one years of age; and the land so allotted shall be deemed the homestead of the allottee and his heirs in perpetuity, and shall be inalienable and nontaxable until otherwise provided by Congress. Any person qualified for an allotment as aforesaid shall have the preference right to secure by allotment the nonmineral land occupied by him not exceeding one hundred and sixty acres.”

Under Interior’s regulations, the 160 acres may be in separate parcels that need not be contiguous, but each separate tract should be in reasonably compact form. In a 1956 amendment to the act, Congress required that “o allotment shall be made to any person under Act until said person has made proof satisfactory to the Secretary of the Interior of substantially continuous use and occupancy of the land for a period of five years.” Initially, the Native Allotment Act was little used by Alaska Natives. However, before the law’s repeal with passage of the Alaska Native Claims Settlement Act on December 18, 1971, roughly 10,000 Alaska Natives applied for over 16,000 parcels of land. The provision that repealed the Native Allotment Act preserved any pending Native allotment applications “before” Interior as of December 18, 1971. While Interior has processed most of the Native allotment applications, as of March 2004, applications for about 3,000 parcels remain to be processed.

Interior’s policies in the early 1970s required clear, physical evidence to support a Native’s use and occupancy of an allotment claim. Since traditional Native land uses, such as hunting, fishing, and gathering, did not leave much physical evidence, Interior questioned the legitimacy of many allotment applications and eliminated or reduced the size of many allotments. In response, many Natives appealed Interior’s decisions regarding their allotment applications. In 1976, Interior was compelled by a federal appeals court decision to provide hearings before denying any allotment application for factual reasons. In addition to providing hearings for pending applications, Interior, as a result of this decision, reopened cases for applicants that had been denied a hearing in the past, slowing the allotment adjudication process. Also, in 1979, an Alaska district court ruled that a Native’s right to the land was deemed to have vested as of the date of first use and occupancy, rather than at the time the allotment was approved. Therefore, a Native’s use of an allotment took priority over other land selections made by the State of Alaska under the Alaska Statehood Act of 1958. This case also slowed down the allotment adjudication process, because BLM had to recover land from the state and other entities so it could be reconveyed as Native allotments. Also, BLM reopened and readjusted cases that had been denied in the past due to conflicts with other land selections.

In 1980, in an attempt to get the allotment adjudication process moving forward again, Congress legislatively approved all pending allotment applications (with certain exceptions) without regard to the applicant’s actual use of the land, as part of the Alaska National Interest Lands Conservation Act (ANILCA). Section 905(a)(1) of ANILCA states that, “Subject to valid existing rights, all Alaska Native allotment applications made pursuant to the which were pending before the Department of the Interior on or before December 18,1971… are hereby approved…” Although ANILCA reduced the need for factual investigations and hearings regarding a Native’s use and occupancy of an allotment approved under the act, conflicting interpretations of the wording and intent of the statute continued to hamper the allotment adjudication process. In particular, differing interpretations of the phrase “valid existing rights” with regard to rights-of-way, set the stage for conflicts between Native allotees and holders of rights-of-way and resulted in numerous legal appeals.

Process for Awarding Allotments, Adjudicating Disputes, and Granting Rights-of-way

Two agencies within Interior—BLM and BIA—as well as the IBLA have key responsibilities with regard to Native allotments in Alaska. These responsibilities include adjudicating applications for Native allotments, granting rights-of-way on federal lands, and handling disputes between Native allottees and holders of rights-of-way. BIA is responsible for the administration and management of Alaska Native allotments on behalf of the United States. BLM is responsible for adjudicating applications for Native allotments and granting rights-of-way on BLM lands. BLM’s decisions concerning Native allotments and rights-of-way can be appealed to the IBLA. The IBLA makes decisions for Interior on appeals related to actions taken by Interior officials relating to the use and disposition of public lands. In Alaska, hundreds of BLM’s Native allotment decisions have been appealed to the IBLA, including those concerning the validity of rights-of-way within Native allotments.

The allotment adjudication process begins when an Alaska Native files an application with BLM. The allotment application requires the applicant to designate the land’s location, state his or her age or head of household status, and specify how and when the land was used. BIA then certifies that the applicant is an Alaska Native and is qualified to make an application under the provisions of the 1906 Native Allotment Act. Following BIA certification, BLM is responsible for the remainder of the application review process. BLM’s basic responsibilities are to (1) determine whether the lands were available for selection at the time use and occupancy began; (2) perform a field examination to locate the claimed land and collect information to determine whether the applicant meets the eligibility requirements; (3) approve or disapprove the application; (4) if the application is approved, survey the land; and (5) issue a certificate of allotment. For allotments legislatively approved under ANILCA, BLM does not need to perform the field examination and verify the Native’s use and occupancy of the allotment. But BLM would still have to determine whether the allotment is qualified for legislative approval. Until it has surveyed an allotment, BLM cannot transfer legal title to the applicant.

Once BLM approves an allotment and passes title to an Alaska Native, BIA, which has a fiduciary responsibility for Native lands, assumes some management responsibility for Native allotments. BIA is generally the first point of contact for an Alaska Native regarding the administration of their allotment. They provide realty services such as providing advice regarding sales, leases, granting rights-of-way, and investigating trespass claims. As authorized by the Indian Self-Determination and Education Assistance Act, as amended, BIA also contracts with regional nonprofit corporations or other Native entities to perform realty services for owners of Native allotments. Under the act, as amended, BIA’s ability to impose specific performance standards is limited and, in some cases, prohibited. The Aleutian/Pribilof Islands Association, Inc.; Chugachmiut, Inc.; and the Copper River Native Association, Inc.; are three Native regional nonprofits in Alaska that have assumed management of the realty function from BIA for selected villages within their respective regions. In 1995, these three regional nonprofits formed Alaska Realty to provide realty services. Alaska Realty is responsible for about 260 Native allotments across the three regions, including over 160 allotments in the Copper River area.

Since BIA grants or approves actions affecting Native title on Native allotments, an applicant must work with BIA or its contractor (realty service provider) to obtain a right-of-way through an approved Native allotment. BIA’s right-of-way application process generally takes at least 24 months to complete and begins when the applicant contacts the BIA, or its realty service provider, for permission to survey the Native allotment. The BIA, or its realty service provider, would then contact the owners of the allotment to obtain consent to survey. After surveying the allotment, the applicant submits the right-of-way application. The application includes maps, survey field notes, the landowner’s written consent, and requests for the appraisal report. Other requirements such as timber permits and other regulatory permits may be necessary. After the appraisal is conducted, the BIA, or its realty service provider, will negotiate with the allottees and the right-of-way applicant to discuss the settlement terms. Under federal regulations, the BIA may not approve or grant a right-of-way for less than the fair market value unless when waived in writing by the allotment owner and approved by Interior. A right-of-way is issued after BIA had concurred with and approved the settlement agreement.

For rights-of-way applications within pending Native allotments, BLM grants the right-of-way after coordinating with BIA. Since BLM has administrative jurisdiction while the Native allotment is under adjudication, the applicant would apply through BLM in the survey and appraisal process to obtain a right-of-way. Under a 1979 Memorandum of Understanding between BLM and BIA, BLM coordinates with BIA when processing right-of-way applications for pending Native allotments, and BIA assumes responsibility for Native allotments once BLM approves the allotment.

Conflicts Have Emerged Over the Status of Utility Rights-of-way within Native Allotments

As allotment applications have been processed over the last three decades, conflicts have arisen between the property rights of Alaska Natives and the holders of rights-of-way. Interior and the State of Alaska have granted rights-of-way in Alaska for a variety of uses such as electrical transmission lines, oil and gas pipelines, and highways. Some of these rights-of-way cross Native allotments, giving rise to conflicts between Alaska Natives and holders of rights-of-way, which in many cases are utilities. In some of these conflicts, electric utilities and other holders of rights-of-way have had their rights-of-way across Native allotments invalidated.

Prior to 1987, Alaska Native allotments were generally subject to rights-of-way existing when they were approved. However, in 1987, the IBLA began applying the relation back doctrine to declare certain existing rights-of-way null and void. Under the relation back doctrine, the IBLA gives priority to an allottee if the allottee’s claimed initial use and occupancy of the land predated other uses and rights-of-way, even if the allotment application was submitted after the right-of-way was issued. Legal challenges to Interior’s use of the relation back doctrine in federal court have been dismissed because the U.S. government has not waived its sovereign immunity and allowed itself to be sued with regard to Alaska Native allotments. Sovereign immunity is a legal doctrine that precludes bringing suit against the government without its consent. Congress has enacted various statutes setting out the circumstances under which the U.S. government has consented to be sued. Under the Quiet Title Act, the U.S. government has waived its sovereign immunity for certain land issues; however, the waiver in the act does not apply to “trust or restricted Indian lands.” Since Alaska Native allotments are “restricted Indian lands,” federal courts have ruled that they do not have jurisdiction to review the IBLA’s decisions concerning the application of the relation back doctrine to rights-of-way over Native allotments. Appendix II provides further analysis of the relation back doctrine.

Copper Valley Electric Association’s Rights-of-way and Native Allotments

One holder of rights-of-way within Native allotments is Copper Valley, a rural nonprofit electric cooperative that was formed in 1955 and currently provides electricity to about 4,000 members in Alaska’s Valdez and Copper River Basin areas via 500 miles of distribution and transmission lines. There are dozens of Native allotments within Copper Valley’s service area. (See fig.1.) As early as 1958, Copper Valley obtained rights-of-way permits from Interior, and later from the State of Alaska, to construct and maintain electric power lines. Copper Valley built some of these transmission lines in the 1960s. Some conflicts later arose when BLM approved some Native allotments containing Copper Valley’s transmission lines. Historically, cooperative utilities in Alaska, as in much of the United States, do not purchase easements from cooperative members and, in the case of Copper Valley, its bylaws prohibit the utility from doing so. Rural electric cooperatives, like Copper Valley, are nonprofit, member-owned utilities that provide electric service to predominantly rural areas and were originally formed solely to provide electricity to their members at cost. Currently, possible conflicts exist regarding the validity of Copper Valley’s rights-of-way within Native allotments.

Conflicts Exist in 14 Cases and Alaska Realty Is Pursuing Four Other Cases without Evidence of a Trespass

There are 14 cases where conflict exists regarding the validity of Copper Valley’s rights-of-way within Native allotments. (See table 1 and fig. 2.) In each of these cases, BIA and/or the allottee believes that Copper Valley has failed to obtain permission for electric lines on Native property. These conflicts exist for three reasons. First, in 5 cases BLM and Alaska Realty have applied the relation back doctrine to invalidate or question Copper Valley’s rights-of-way. Second, conflict exists in 6 cases because Interior does not recognize rights-of-way to install electric lines granted by the State of Alaska to Copper Valley within certain highway easements that were issued by the federal government to the state. Third, conflict exists in 3 cases because Copper Valley constructed electric lines across Native allotments even though they were never issued a right-of-way. Additionally, there are 4 other cases where Alaska Realty is requesting that Copper Valley obtain rights-of-way without evidence that Copper Valley is in trespass.

BLM and Alaska Realty Have Applied the Relation Back Doctrine

Conflict exists in five cases where BLM and Alaska Realty have invalided or questioned Copper Valley rights-of-way because a Native allottee’s use and occupancy of the land predated the right-of-way. (See table 2.)

In two of these cases, conflict exists between Native allotments and Copper Valley because BLM has applied the relation back doctrine to declare Copper Valley rights-of-way null and void. For example, In 1992, BLM voided Copper Valley’s right-of-way across Evelyn Hash Koonuk’s allotment that Copper Valley held for over 27 years. BLM determined that even though her application for the allotment was not filed until almost 7 years after the right-of-way was issued her use and occupancy predated the right-of-way. (See fig. 3.)

In 1995, BLM voided Copper Valley’s right-of-way across Carol Holt’s allotment that it held for 19 years. Based on the date of use and occupancy claimed in Carol Holt’s application, BLM determined that she had rights prior to Copper Valley. (See fig. 4.)

Both of these allotments were legislatively approved under ANILCA. In these two cases, officials from Copper Valley stated that they believe that the relation back doctrine has, in effect, voided the requirement in ANILCA that Native allotments are to be approved subject to valid existing rights. In Copper Valley’s view, their rights-of-way are valid rights, existing at the time the Native allotment applications were approved. Copper Valley also believes that the relation back doctrine should be repealed, or at the very least, that an allottee’s claimed date of use and occupancy should not be used to declare their rights-of-way null and void.

In three other cases conflict exists where Alaska Realty considers Copper Valley’s rights-of-way invalid because it has applied the relation back doctrine to grant priority to Native allottees whose use and occupancy of the land began before the right-of-way was issued. In these three cases, the allotments were certified prior to the IBLA’s introduction of the relation back doctrine in 1987. Additionally, the applications for these allotments were adjudicated under the 1906 Act; they were not legislatively approved under ANILCA. To date, BLM has only used the relation back doctrine to invalidate rights-of-way within Native allotments that were certified after 1987 and has not gone back to re-examine rights-of-way across allotments that already have been certified. However, in these cases, a BIA official told us that because the allottees’ use and occupancy of the land predated Copper Valley’s right-of-way, Alaska Realty does not recognize the right-of-way across Markle Ewan and Tazlina Joe’s allotments as valid. In the case of Peter Ewan’s allotment, a 1988 letter from BIA to Copper Valley stated the following, “While was granted a across the subject lands in 1958, this office believes it was granted erroneously, since Mr. Ewan had by this time already established his use and occupancy.” (See fig. 5.) Alaska Realty is requesting that Copper Valley obtain a new right-of-way across these allotments. However, according to Interior’s Alaska Office of the Solicitor, Alaska Realty does not have the authority to require utility companies to obtain a new right-of-way until Interior has taken the administrative action to declare an existing right-of-way null and void. Interior has yet to take this action.

In addition to the five cases with conflicts discussed earlier, BLM has also applied the relation back doctrine to declare Copper Valley’s rights-of-way within two other Native allotments null and void. However, the conflicts created by BLM’s actions in these two additional cases have been resolved by actions taken by Native allottees and Copper Valley. In one case, in 1992, BLM voided Copper Valley’s right-of-way across Jack Tenas’ allotment that it held for 34 years. Six years after BLM’s decision, Jack Tenas’ allotment was deeded to a non-Native, therefore ending the dispute between Copper Valley and the Native allottee. According to BIA officials, when a Native allotment is sold to a non-Native, BIA no longer has a fiduciary responsibility; including pursuing damages for past trespass actions. In the second case, BLM declared Copper Valley’s right-of-way across Howard Adams’ allotment null and void 7 years after it was granted. However, following BLM’s decision, Copper Valley used BIA procedures to negotiate a valid right-of-way with the Native allottee. In contrast to the Evelyn Hash Koonuk and Carol Holt allotments, where BLM also applied the relation back doctrine, the Jack Tenas and Howard Adams allotments were adjudicated under the 1906 Act, because they did not meet the criteria for legislative approval under ANLICA.

Finally, while conflicts created by using the relation back doctrine to declare Copper Valley rights-of-way null and void are relatively few, the possibility exists that future applications of the doctrine will create additional conflicts. First, approximately 3,000 Native allotment applications are still pending. Some of these pending allotments may give rise to additional conflicts in the Copper River area. Second, Interior has not systematically re-examined all the allotments certified before 1987, to determine if the relation back doctrine is applicable. Although a few cases have been identified so far in the Copper River area, others may exist. Officials we spoke with at the Office of the Solicitor in Alaska stated that Interior is not precluded from taking action under the relation back doctrine to void rights-of-way for allotments certified prior to 1987.

Interior Does Not Recognize Copper Valley’s State Issued Rights-of-way within Certain Federally Granted Highway Easements

There are six cases where conflict exists regarding the status of Copper Valley’s rights-of-way within Native allotments because Copper Valley has a state—but not a federal—right-of-way within a highway easement granted by the federal government to Alaska. (See table 3.) The federal government transferred the easements for the Richardson and Old Edgerton Highways to the State of Alaska under the 1959 Alaska Omnibus Act.

In 1962 and 1983, the State of Alaska granted Copper Valley utility rights-of-way within these federally granted highway easements. For example, in 1983, the State of Alaska granted Copper Valley a utility right-of-way within the Old Edgerton Highway easement that crosses Howard Jerue’s allotment. (See fig. 6.) Then in 1989, 30 years after Alaska became a state and was granted the highway easements from the federal government, Interior’s Alaska Office of the Solicitor issued an opinion concerning whether a federal grant of a highway easement to the State of Alaska authorized the state to grant a right-of-way within the highway easement to a utility. The Solicitor concluded that federal, not state, law governed the issue and that under federal law, certain federally granted highway easements did not convey to the state the authority to grant rights-of-way for utility lines because they are not structures necessary for the use of highway easements but are new uses being imposed on the land. The Solicitor relied on a decision of the Court of Appeals for the Ninth Circuit, holding that a right-of-way issued under Revised Statute 2477 does not include the right to install utility lines. The Solicitor’s opinion stated that the utility must apply for a federal right-of-way—in this case from BIA because the power lines crossed a Native allotment.

Relying on the Solicitor’s opinion, Alaska Realty is now requesting that Copper Valley apply for rights-of-way from BIA on behalf of the allottee where their electric lines are located within highway easements that cross Native allotments. Alaska Realty has taken the position, supported by Interior, that Copper Valley is trespassing on the allotment because it installed electric lines without acquiring a federal right-of-way across these allotments. Copper Valley, however, maintains that its state issued utility easements are sufficient. Officials from Copper Valley told us that they believe that their rights-of-way across these six allotments are adequate, pointing to a 1983 Alaska Supreme Court decision that found electric line construction was an incidental and subordinate use of a highway easement and that an additional right-of-way from the landowner was not necessary.

Copper Valley Constructed Electric Lines Even Though They Were Never Issued a Right-of-way

In three cases conflict exists because Copper Valley built an electric line across Native allotments where a right-of-way had not been issued. (See table 4.) In 1965, Copper Valley filed a right-of-way application with BLM for an electric distribution line, which was built 2 years later. However, it took BLM until 1982, or 17 years, to act on Copper Valley’s application. In the meantime, several Native allotment applications were filed where Copper Valley had constructed its electric lines. BLM received Native allotment applications from Frank Gurtler, Mary Ann Gurtler, and Florence Sabon in 1972, and they were subsequently approved in 1983 and 1984. In addition, in 1979, BLM and BIA signed a Memorandum of Understanding that clarified jurisdictional responsibilities for granting rights-of-way across pending Native allotments. Under this memorandum and in accordance with BLM state director policy, Copper Valley was to have obtained BIA concurrence before BLM could grant a right-of-way across a pending Native allotment. As such, in 1982 when BLM acted on Copper Valley’s right-of-way application it determined that Copper Valley’s right-of-way application for the existing electric line would be held for rejection where it crossed the land of Frank Gurtler, Mary Ann Gurtler, and Florence Sabon unless Copper Valley received BIA approval to cross lands that were, at the time, pending approval as Native allotments.

According to BIA officials and Interior records, Copper Valley did not obtain BIA approval for a right-of-way across these pending allotments. Because Copper Valley did not obtain BIA approval, BLM’s decision to reject Copper Valley’s application where the right-of-way crossed the three Native allotments took effect. Following BLM’s 1982 decision, the applications for the three Native allotments were approved by BLM. Since BLM never granted Copper Valley a right-of-way through these allotments, Alaska Realty is requesting that Copper Valley obtain a valid utility right-of-way for these electric lines.

Copper Valley officials noted that even if BLM had promptly granted the right-of-way prior to the filing of the Native allotment applications, the relation back doctrine could presumably now have been applied to invalidate their right-of-way. The claimed use and occupancy for the three allotments all predate Copper Valley’s 1965 right-of-way application. However, since Copper Valley was not granted a right-of-way across these allotments they are not examples of the relation back doctrine. In 1982, BLM told Copper Valley to obtain BIA concurrence to cross the pending Native allotments. Over 20 years later, that is still essentially what Copper Valley needs to do. Alaska Realty maintains that Copper Valley needs to obtain a right-of-way for its electric lines across these allotments in accordance with BLM and BIA regulations and policies.

Alaska Realty Is Pursuing Four Other Cases Against Copper Valley without Evidence of a Trespass

In four cases, Alaska Realty has requested that Copper Valley obtain rights-of-way even though we believe Alaska Realty lacks evidence that the company’s electric lines cross a Native allotment. Since 1996, through correspondence and in-person meetings, Alaska Realty has requested that Copper Valley resolve conflicts over four allotments despite having insufficient evidence that a Copper Valley right-of-way was in conflict with a Native allotment. (See table 5.) Over the years, Alaska Realty contractors developed a list of Native allotments where it maintains that Copper Valley needs to negotiate rights-of-way. Representatives from Alaska Realty told us that they did not know what criteria were used to place allotments on the list; however, some of the allotments were added to the list because Copper Valley had requested a right-of-way.

Without proper surveys of Copper Valley electric lines, Native allotment boundaries, and highway rights-of-way it is impossible to determine whether Copper Valley is in trespass. In all four cases, Alaska Realty was unable to demonstrate that it had investigated and documented the location of electric lines and relevant allotment boundaries. For example, Alaska Reality has pursued Copper Valley to obtain a right-of-way across Derira George’s allotment even though Alaska Realty cannot document that it performed an investigation to determine if Copper Valley’s rights-of-way conflict with the Native allotment. Based on our review of the Master Title Plat, discussions with BLM, and an inspection of the land, it appears that an electric line does not cross this allotment and, therefore, that a conflict does not exist. A professional survey would be required to confirm our preliminary determination.

In two other cases, Alaska Realty is requesting that Copper Valley obtain rights-of-way even though electric lines do not cross Native allotments. Although Copper Valley first initiated the effort to obtain rights-of-way across Adam Bell and Verina Estes’s Native allotments, Alaska Realty did not investigate to determine if Copper Valley was in trespass. We reviewed the BLM’s adjudication file for Adam Bell’s allotment and found a 1999 BLM decision concluding that the boundary of Adam Bell’s allotment ended at the highway right-of-way; therefore, the highway right-of-way does not cross the allotment. In addition, our examination of the allotment found that Copper Valley’s electric lines appeared to be within the highway right-of-way. A similar review of Verina Estes’ BLM adjudication file found that Copper Valley’s electric lines do not cross the Native allotment. Evidently, the original Master Title Plat for this allotment shows Copper Valley’s electric lines traversing a portion of the allotment. However, in 1989, BLM realized that the Master Title Plat for this Native allotment was inaccurate and that the electric lines do not conflict with Verina Estes’ allotment.

In the final case, Alaska Realty has requested that Copper Valley obtain a right-of-way across Caroline Mackey’s allotment without evidence of the electric line’s exact location. Alaska Realty’s file has a 1987 BIA appraisal report that adequately documents an electric line within the allotment without a valid right-of-way. However, in 1996, the Native allotment was partitioned in half and divided equally between a Native heir and a non-Native heir. The east side of the allotment belongs to a Native heir and remains under BIA oversight, while the west side of the allotment was transferred into private ownership and is not under BIA oversight. Alaska Realty is currently requesting Copper Valley to obtain a right-of-way for this allotment even though there is no evidence, such as a survey, to show the precise location of the electric line within the former Caroline Mackey Native allotment. This type of documentation is important because if the electric line is within the unrestricted side of the allotment, Alaska Realty has no authority to pursue Copper Valley for trespass.

Due to the frequent turnover of staff among its realty service providers in Alaska and the specialized nature of Native land transactions, BIA has recognized the need to provide realty training and technical assistance for its realty service providers. In March 2004, BIA’s Alaska Region Realty Office held a basic realty training course for its realty service providers in the state. The agenda for the training course covered the basic processes and procedures of realty transactions, such as sales, mortgages, rights-of-way, leases, and trespass. According to the BIA’s Alaska Regional Realty Office, this was the first year that BIA offered the basic realty training course. The course’s section on trespass included a discussion of the types of trespass, how to conduct a site visit and investigation of the alleged trespass, a field examination checklist, and notices to the trespasser about the unauthorized use of the land. While BIA’s training materials provided general information on trespass, the materials did not provide specific information on trespasses involving rights-of-way. For example, the training materials did not include information on the types of evidence that should be obtained to determine if a conflict exists involving rights-of-way, such as the exact location of electric lines, and the boundaries of Native allotments and highway easements.

Existing Remedies Available to Resolve Disputes over the Validity of Copper Valley Rights-of-way within Native Allotments Have Produced Limited Results

While the resolution of a number of these conflicts has been intermittently pursued since the mid-1990s, only a few cases have been resolved using existing remedies. Copper Valley currently has three remedies available to it to resolve conflicts. It could (1) negotiate rights-of-way with Native allottees in conjunction with BIA or its realty service provider; (2) relocate its electric lines outside of the Native allotment; or (3) exercise the power of eminent domain, also known as condemnation, to acquire the land. Since the mid-1990s, Copper Valley has negotiated rights-of-way for three Native allotments; however, it has not relocated any of its electric lines outside of allotments and has been reluctant to exercise eminent domain to resolve other conflicts. Finally, in addition to remedies available to Copper Valley, the federal government could force the resolution of these conflicts by bringing trespass actions against Copper Valley.

Since the mid-1990s, Few Cases Have Been Resolved Using Existing Remedies

While there are several options currently available to resolve conflicts between Native allotments and Copper Valley rights-of-way, these remedies have produced limited results. Under the first option, Copper Valley can negotiate with Alaska Realty to secure a right-of-way across a Native allotment. Using this remedy, Copper Valley was able to negotiate and reach an agreement for rights-of-way across 3 of 13 Native allotments on which it had begun negotiations. Copper Valley officials noted that historically, cooperative utilities in Alaska do not purchase rights-of-way or easements from members. According to Copper Valley’s bylaws and tariffs, as a condition of service, members or the legal property owner shall without charge to Copper Valley “execute an easement providing for a suitable right-of-way for the Association distribution lines crossing the owner’s property and providing service to the consumer.”

Since the mid-1990s, Copper Valley began discussions with Alaska Realty to obtain rights-of-way within 13 Native allotments. Copper Valley had 9 of these Native allotments surveyed, the first step in obtaining a right-of-way grant. Ultimately, BIA appraised 7 of these allotments, and Copper Valley was able to reach an agreement for rights-of-way across only 3 Native allotments. The other 4 cases that were appraised remain in conflict, and Copper Valley and the Native allottees have been unable to agree on the terms of the proposed right-of-way. For example, we spoke with heirs or allottees from Mary Ann Gurtler’s and Carol Holt’s allotments who said that for several years they had been negotiating with BIA, Alaska Realty, and Copper Valley in an attempt to get electric service to their homes and a right-of-way for the electric lines that cross their allotments. The allottees claim that Copper Valley is denying them electric service because of all of the unresolved conflicts with the rights-of-way in the area. They also noted that, at this point in time, all they want is to get electric service and that they are willing to waive compensation for a right-of-way. Copper Valley in its comments to us disagreed with the allottees’ statements and noted that the association has the goal of servicing all potentially eligible customers in its service area.

While the amount paid to an allottee for the use of the land in a right-of-way is generally a couple of thousand dollars, the process for obtaining a right-of-way can be costly and time consuming. Copper Valley claims that the cost of negotiating rights-of-way and compensating the allottees ranges from $10,000 to $30,000 in surveying, legal, and other administrative costs per allotment and may take several years to complete. Copper Valley is concerned that purchasing rights-of-way across Native allotments will, over time, increase electric rates for members. It is also concerned that purchasing rights-of-way from select members would alienate members who are not compensated yet have to pay a higher electric bill for those who do.

Under the second option—relocating its electric lines outside of Native allotments—Copper Valley officials noted that they had not removed electric lines from Native allotments as a way to resolve conflicts over rights-of-way. Removing electric power lines from a Native allotment and relocating them elsewhere raises cost and environmental concerns. Relocating electric lines would scar the land and possibly damage the surrounding areas due to heavy equipment traversing through the allotment. Copper Valley does not view this option as very practical given that, in many areas, Native allotments border the highway on both sides, leaving few options for where to relocate the lines.

Under the third option, Copper Valley has the authority to resolve conflicts through condemnation pursuant to 25 U.S.C. § 357, in conjunction with Alaska Stat. § 42.05.631. Copper Valley is opposed to condemnation and is reluctant to secure a right-of-way in this manner for two reasons. First, officials maintain that Copper Valley does not have the funds to compensate the allottees for the land condemned. Second, Copper Valley believes that condemnation is not politically feasible and may damage relationships with the community they serve.

In summary, Copper Valley officials maintain that the options currently available to resolve conflicts over rights-of-way within Native allotments are too costly, impractical, and/or potentially damaging to relationships with the community. Furthermore, Copper Valley takes the position that on principle they should not have to bear the cost of resolving conflicts that they believe the federal government caused by applying the relation back doctrine and by failing to recognize state issued rights-of-way within federally granted highway easements. Copper Valley has stopped trying to settle these disputes and is now seeking legislation to resolve the conflicts.

Federal Government Is Unlikely to Bring Trespass Actions against Copper Valley

In addition to remedies available to Copper Valley, the federal government has the option of resolving these conflicts by bringing trespass actions against Copper Valley to require that it relocate its electric lines and pay damages to Native allottees. For example, for the Evelyn Hash Koonuk allotment, the Interior Alaska Office of the Solicitor could recommend to the Justice Department that the federal government bring a trespass action against Copper Valley because it has not yet negotiated a valid right-of-way. In this case, BLM declared null and void Copper Valley’s 1965 right-of-way through Ms. Koonuk’s allotment, even though Copper Valley had obtained its right-of-way 7 years before Ms. Koonuk filed her allotment application. According to the Interior Alaska Office of the Solicitor, the federal government is unlikely to pursue this course of action because it would provide Copper Valley the opportunity to raise its concerns about the relation back doctrine and other legal issues in federal court. For this reason, the Department of Justice is generally unwilling to bring trespass cases against electric companies.

Legislative Alternatives to Resolve Conflicts between Native Allotments and Copper Valley Rights-of-way Have Been Identified

Several legislative alternatives to resolve conflicts over Copper Valley rights-of-way within Alaska Native allotments have been identified. Copper Valley representatives, Alaska Native advocates, and GAO have identified alternatives including legislation to: (1) change Interior’s application of the relation back doctrine with respect to Alaska Native allotments, (2) allow the U.S. government to be sued with regard to Alaska Native allotments so that legal challenges to the relation back doctrine can be heard in federal court, (3) ratify the rights-of-way granted by the State of Alaska within its highway easements, and (4) establish a federal fund to pay for rights-of-way across Native allotments. These alternatives may be combined, and we do not hold an opinion as to which, if any, of these alternatives might be preferable. We also note that some of these individual legislative remedies would address only one specific cause of the conflicts between Native allottees and Copper Valley rights-of-way. Further, while we did not determine the financial costs or the legal ramifications on the property rights of the Alaska Native allottees associated with any of these options, such costs and legal ramifications would need to be assessed.

Alternative 1: Change Interior’s Application of the Relation Back Doctrine to Alaska Native Allotments Congress could enact legislation directing Interior to use the date an allotment application is filed, rather than the date an allottee claimed initial use and occupancy of the land, to determine the rights of allottees and holders of rights-of-way. This option, which would rescind application of the relation back doctrine to Native allotments, would allow Copper Valley to keep its federal rights-of-way as long as the right-of-way was issued before the allotment application was filed. Implementing this option would likely benefit Copper Valley by favoring the holders of rights-of-way and might result in legal challenges by Native allottees claiming that this action constitutes a taking of their property. If such challenges were successful, the federal government would have to compensate Native allottees.

Alternative 2: Allow the U.S. Government to be Sued with Regard to Alaska Native Allotments A second option is for Congress to allow the U.S. government to be sued with regard to Alaska Native allotments by waiving the U.S. government’s sovereign immunity so that legal challenges involving the relation back doctrine can be heard in federal court. Under this option, IBLA decisions regarding the relation back doctrine could be appealed to the courts, providing an opportunity for judicial review of these administrative decisions. While this option would allow Copper Valley and others to challenge Interior’s administrative decisions, the courts may well uphold Interior’s decisions. Moreover, appeals would entail legal costs to Copper Valley and the federal government. In addition, even if Copper Valley were to prevail, a solution to the conflict may take years to achieve as these cases make their way through the courts. Also, a decision would need to be made regarding whether this alternative would only apply to future IBLA decisions or whether old cases could also be refiled. For this alternative to apply to old cases, like the Copper Valley relation back cases from the 1990s, a special exemption would need to be crafted that waived the statute of limitations for these older cases.

Alternative 3: Ratify Rights-of-way Granted by the State of Alaska within Certain Federally Granted Highway Easements Congress could ratify the rights-of-way granted by the State of Alaska within certain federally granted highway easements. This option could provide Copper Valley with a valid right-of-way across the allotments dating back to the time the state right-of-way was granted. Legislation providing a right-of-way across Native allotments would have legal and financial implications. For example, such legislation might constitute a taking, for which compensation is required.

Alternative 4: Establish a Federal Fund to Pay for Rights-of-Way A fourth option is to establish a federal fund to pay for rights-of-way across Native allotments. This option would benefit both Native allottees and Copper Valley by compensating allottees for use of their land and by not requiring Copper Valley to pay for the right-of-way across a Native allotment. Under this option, the federal government and taxpayers would bear the entire cost of resolving the conflicts. However, the cost of alternative four would be similar to the combined cost of alternatives one and three if they are determined to be takings that require federal compensation.

Conclusion

Some of the conflicts over the validity of Copper Valley’s rights-of-way within Native allotments date back over 30 years. Since the mid-1990s, Alaska Realty, as the new realty service provider for BIA, has been pursuing Copper Valley to resolve these conflicts. Despite trying to resolve these conflicts intermittently over the past 9 years, existing remedies have generally been unsuccessful in settling disputes between Native allottees and Copper Valley. We have identified several legislative alternatives to address the issues at the root of these conflicts. While we did find a number of cases where conflicts currently exist over the validity of Copper Valley rights-of-way within Native allotments, we also found cases where Alaska Realty is requesting Copper Valley to obtain valid rights-of-way without sufficient proof that a trespass actually exists. In these cases, we believe Alaska Realty has created unnecessary conflict by requesting that Copper Valley obtain rights-of-way without adequately investigating and documenting the boundaries of Native allotments and the location of electric lines and highway rights-of-way. BIA’s ability to prescribe specific performance standards for Alaska Realty is limited and, in some cases, prohibited under the Indian Self-Determination and Education Assistance Act, as amended. While BIA can and does provide training and technical assistance to its realty service providers in Alaska, the March 2004 training materials did not include information on the types of evidence that should be developed before pursuing an alleged trespass involving rights-of-way, such as the exact location of electric lines, and the boundaries of Native allotments and highway rights-of-way.

Recommendations for Executive Action

To ensure that potential conflicts over the validity of rights-of-way within Alaska Native allotments are not escalated unnecessarily, we are recommending that the Secretary of the Interior direct the Assistant Secretary for Indian Affairs to develop, as part of BIA’s training and technical assistance provided to its realty service providers in Alaska, a training module identifying the types of evidence that should be developed before pursuing an alleged trespass involving rights-of-way.

Agency Comments and Our Evaluation

We provided copies of our draft report to Interior, the State of Alaska, and Copper Valley. Interior, the State of Alaska, and Copper Valley provided written comments. (See appendixes IV through VI, respectively, for the full text of the comments received from these three entities and our responses.) Interior and Copper Valley specifically commented on and agreed with our recommendation. The State of Alaska did not specifically comment on our recommendation, but did comment on our four legislative alternatives. Interior and Copper Valley also provided technical comments that we incorporated where appropriate.

Interior agreed with our recommendation that BIA develop a training module identifying the types of evidence that should be developed before pursuing an alleged trespass involving rights-of-way. Interior noted that BIA’s Alaska Region Realty Office in conjunction with Interior’s Alaska Office of the Solicitor would include evidentiary standards that should be developed before pursuing an alleged trespass involving rights-of-way. Interior did not comment on any of the four legislative alternatives.

The State of Alaska commented that the GAO report was laudable in its breadth of analysis of conflicts between Alaska Native allotments and rights-of-ways. The state commented on each of the alternatives, emphasizing the benefits and limitations of each alternative. In particular, the state expressed support for alternative three—a legislative solution that would include a clarification by Congress that third party rights-of-way granted by the state within federal highway easements are valid. The State of Alaska also noted that it is prepared to work cooperatively with the federal government, allotment advocates, and utility companies on a comprehensive legislative solution that recognizes the valid existing rights of all parties.

Copper Valley agreed with our recommendation and most of the alternatives. In its comments, Copper Valley congratulated GAO for assembling information on all 34 Native allotments in controversy. They noted that this section is the heart of the report and provides a cogent summary of these cases. Copper Valley commented on each of the alternatives and specifically noted that alternative one—changing the application of the relation back doctrine—and alternative three should be adopted to resolve the problems. In addition, Copper Valley also expressed support for the establishment of a fund (alternative four), as long as the federal government covers all costs and administrative burdens.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies of this report to the Secretary of the Interior, the Governor of the State of Alaska, the Chief Executive Officer of Copper Valley, as well as to appropriate Congressional Committees, and other interested Members of Congress. We also will make copies available to others upon request. In addition, the report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff have questions about this report, please contact me at (202) 512-3841. Key contributors to this report are listed in appendix VII.

Objectives, Scope, and Methodology

Based on an August 25, 2003, request from the Chairman, Senate Committee on Appropriations, and subsequent discussions with the Chairman’s staff, we reviewed conflicts concerning the validity of the rights-of-way of Copper Valley Electric Association within Alaska Native (Native) allotments. Copper Valley, a rural nonprofit electric cooperative, operates in south-central Alaska, north and east of Anchorage. Specifically we determined (1) the number of conflicts that exist between Alaska Native allotments and Copper Valley Electric Association’s rights-of-way and the factors that contributed to these conflicts; (2) the extent to which existing remedies have been used to resolve these conflicts; and (3) what legislative alternatives, if any, could be considered to resolve these conflicts.

To determine the number of conflicts that exist between Alaska Native allotments and Copper Valley Electric Association’s rights-of-way and the factors that contributed to these conflicts, we reviewed 34 Native allotments identified by Copper Valley and the Alaska Realty Consortium, a Bureau of Indian Affairs (BIA) contractor providing realty services for Native allotments in south-central Alaska, where either party suggested a conflict existed. To determine whether there was an actual conflict between Native allotments and Copper Valley’s rights-of-way, we examined the Department of the Interior’s Bureau of Land Management (BLM) allotment adjudication files and all of the rights-of-way permits (seven federal and two State of Alaska) issued to Copper Valley for these allotments. We interviewed representatives from BLM, BIA, and Interior’s Alaska Office of the Solicitor. We also met with officials and reviewed records from Alaska Realty, Copper Valley, and the State of Alaska, including the Departments of Law, Transportation and Public Facilities, and Natural Resources. In May 2004, we met with 15 Alaska Native allottees, or their representatives, at group meetings in Glennallen and Anchorage, Alaska. We also spoke by telephone with several other allottees that were not able to attend the meetings.

To determine the extent to which existing remedies have been used to resolve conflicts between Alaska Native allotments and Copper Valley Electric Association’s rights-of-way, we met with representatives from Copper Valley, Alaska Realty, and Native allottees. We also visited some Native allotments in question and several electric line rights-of-way to obtain a better understanding of the physical features of various land allotments. In addition, we reviewed records at Copper Valley and Alaska Realty to obtain information on when Copper Valley first initiated the right- of-way process, whether Copper Valley had conducted a survey of the allotment, and if BIA performed any appraisal.

To determine what legislative alternatives, if any, could be considered to resolve these conflicts, we developed legislative alternatives based on our analysis of federal laws and regulations, federal court rulings, and decisions of Interior’s Board of Land Appeals. In addition, we discussed possible legislative options with federal officials in Alaska and Copper Valley Electric Association representatives.

We conducted our work between November 2003 and June 2004 in accordance with generally accepted government auditing standards.

Legal Appendix on the Relation Back Doctrine

Relation back is a legal doctrine that considers an act performed at one time to have taken place at an earlier time. In the context of Alaska Native (Native) allotments, relation back refers to relating an Alaska Native’s rights back to the date the Native first initiated use and occupancy rather than the date the allotment application was filed. Under this doctrine, when a Native allotment application is filed, the Native allotment relates back to the time the Alaska Native began (or claims he/she began) use and occupancy. When use and occupancy of available land began before the granting of a highway or utility right-of-way, the Native allotment is given priority, and the right-of-way is deemed to be invalid. The doctrine has been applied to Native allotments by federal courts and the Department of the Interior’s Board of Land Appeals (IBLA).

Federal District Court Cases Applying Relation Back Doctrine

Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979)

Alaska Natives had applied for an allotment under the Alaska Native Allotment Act of 1906. The Department of the Interior rejected their application because the land they claimed for the allotment had already been conveyed to the State of Alaska. In challenging the rejection of their allotment, the Alaska Natives claimed that the use and occupancy upon which their allotment was based began before the conveyance of the land to Alaska. The District Court for the District of Alaska ruled that the fact that the Natives did not file an application for an allotment until after the land was selected by and conveyed to Alaska did not eliminate their preference right in the land. The court ordered the Department of the Interior to hold a hearing to determine the facts concerning the existence and sufficiency of the Alaska Natives’ use and occupancy. The court stated that based on the facts determined at the hearing, if the Department of the Interior had mistakenly or wrongfully conveyed land to the State of Alaska to which the Alaska Natives had a superior claim, then the Department of the Interior was responsible to recover the land.

Alaska v. 13.90 Acres of Land, 625 F. Supp. 1315 (D. Alaska 1985), aff’d sub nom., Etalook v. Exxon Pipeline Co., 831 F.2d 1440 (9th Cir. 1987)

An Alaska Native began to occupy the allotment at issue in 1946 and applied for a Native allotment in 1971. The allotment was issued in 1975. In 1969, Alyeska Pipeline Company applied for rights-of-way for the Trans- Alaska oil pipeline, including across lands occupied by the Alaska Native. Alyeska’s rights-of-way were granted in 1974, resulting in a conflict with the Alaska Native’s allotment. Alyeska subsequently obtained rights-of-way for portions of the pipeline that crossed the allotment from the Alaska Native and for the other portions of the pipeline that crossed the allotment through a formal condemnation action. In adjudicating the amount of compensation to be awarded to the Alaska Native in the condemnation action, the District Court for the District of Alaska disagreed with Alyeska’s argument that its right-of-way application had priority over the Alaska Native’s allotment application. The court applied the relation back doctrine, ruling that the use and occupancy of the allotment by the Alaska Native created an inchoate preference right that became vested upon the filing of a timely application. Once vested, the preference relates back to the initiation of occupancy and takes preference over competing applications filed prior to the Native allotment application.

Selected IBLA Cases Applying the Relation Back Doctrine

Golden Valley Electric Association (On Reconsideration) (Jennie K. Irwin Allotment), 98 IBLA 203 (1987)

In this decision, the IBLA reconsidered its 1985 decision in which it had reversed a BLM decision declaring a portion of a right-of-way for a power transmission line null and void. In its 1985 decision, the IBLA had held that the Alaska Native’s allotment was subject to the utility’s right-of-way. Golden Valley Electric Ass’n, 85 IBLA 363 (1985). The IBLA reconsidered its decision in light of the Alaska district court’s decisions applying the relation back doctrine in Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979) and Alaska v. 13.90 Acres of Land, 625 F. Supp. 1315 (D. Alaska 1985).

The IBLA held that an Alaska Native had a preference right to an allotment of land commencing with the first use and occupancy of the land. This preference right was not barred by the fact that a Native allotment application was not filed for the land until after a right-of-way had been granted across the land. Once the preference right becomes vested, the preference relates back to the initiation of occupancy and takes preference over rights-of-way or other uses of the land filed subsequent to the commencement of use and occupancy by the Native. Thus, in this case, where a Native allotment application was filed after a highway right-of-way was issued, the Native allotment related back and nullified the right-of-way that had already been granted.

State of Alaska, Golden Valley Electric Association (Dinah Albert Allotment), 110 IBLA 224 (1989)

Alaska and Golden Valley were granted highway and transmission rights-of- way in the mid-1960s. Subsequently, an Alaska Native filed Native allotment applications in 1967 and 1968, asserting use and occupancy that initiated in 1938. The application was legislatively approved under the Alaska National Interest Lands Conservation Act (ANILCA) in 1980. In a 1987 decision, the Bureau of Land Management (BLM) declared the portions of the rights-of- way that crossed the allotment null and void. In their appeal, Alaska and Golden Valley contended that the allotment should be made subject to their rights-of-way because the Native’s use and occupancy was not open and notorious and, therefore, was insufficient to provide notice of her claim.

The IBLA affirmed BLM’s decision and held that, where an allotment was legislatively approved, the legislative approval precluded any additional inquiry into the facts of the Native’s use and occupancy of the land, including whether the use had been open and notorious. The IBLA stated that although the legislative approval of the allotment was subject to valid existing rights, the rights-of-way, approved in the mid-1960s, cannot be considered valid existing rights since they did not come into existence until after initiation of Albert’s allotment, which was stated in the record as 1938. The IBLA concluded that the rights-of-way approved after the reported initiation of the Native’s use and occupancy are not valid and existing rights, and BLM, therefore, was correct in declaring the rights-of-way null and void.

State of Alaska Department of Transportation & Public Facilities (Irene Johnson and Jack Craig Allotments), 133 IBLA 281 (1995)

In this decision, the IBLA consolidated appeals from two separate BLM decisions. Native allotment applications were filed by Johnson and Craig in the early 1970s. Johnson claimed use and occupancy of the land beginning in 1940, and Craig claimed use and occupancy beginning in 1937. A materials site right-of-way application was filed with BLM by the State of Alaska Department of Highways in 1965, after the date claimed for the initiation of use and occupancy of the allotments, but before the filing of the allotment applications. The right-of-way was granted in 1965. BLM later approved the allotment applications of Johnson and Craig but did not issue a certificate of allotment. Subsequently, ANILCA was enacted, and BLM held that the applications were legislatively approved by section 905(a)(1) of ANILCA. BLM did not state that the allotments would be subject to Alaska’s materials site right-of-way.

Alaska appealed BLM’s decisions, contending that the allotments should be subject to the right-of-way. The IBLA agreed with the state. In its decision, the IBLA considered whether the allottees had a preference right that related back to the initiation of use and occupancy that preempted the right-of-way and concluded that they did not. The IBLA stated that the authority to allot federal lands under the 1906 Native Allotment Act is limited to vacant, unappropriated, and unreserved nonmineral land. The IBLA ruled that, in the cases of Johnson and Craig, the land applied for was mineral in character and thus not available for Native allotment during the period of use and occupancy prior to the creation of the state’s right-of- way. The IBLA concluded that the state right-of-way is a valid existing right to which the legislative approval of the allotment was subject under section 905(a)(1) of ANILCA.

In its decision, the IBLA noted that its 1987 decision in Golden Valley (On Reconsideration) “marked a departure from the approach espoused by the Board in [its 1985 Golden Valley decision] and other cases, holding that an allotment was subject to a right-of-way granted during the period of use and occupancy, but prior to the filing of the allotment application.” 133 IBLA at 287 n.8, citing State of Alaska v. Albert, 90 IBLA 14, 21-22 (1985).

State of Alaska Department of Transportation & Public Facilities (Goodlataw Allotment), 140 IBLA 205 (1997)

Land was withdrawn in 1953 and 1956 for power projects. In 1965, Alaska filed an application for a channel change right-of-way using some of these lands. BLM issued the right-of-way in 1966, subject to all valid rights existing on the date of the grant.

In 1971, BIA filed an amended application for a Native Allotment on behalf of Goodlataw, claiming use and occupancy commencing in 1954. In 1974, BLM advised Goodlataw that the lands embraced by his amended application were not vacant and unreserved on the date he filed his application or on the date he initiated use and occupancy because they had been withdrawn by the power projects. Subsequently, BLM informed Goodlataw that the power site withdrawal was no longer an obstacle to ultimate approval of his application and in 1991 and 1992 issued decisions to confirm legislative approval of his allotment application and to declare Alaska’s right-of-way null and void, respectively. In its 1992 decision, BLM noted that the right-of-way had been issued subject to all valid rights existing on its 1966 issuance date. BLM stated that Goodlataw’s application, which claimed use and occupancy beginning in 1954, had begun prior to the 1965 filing of the state’s right-of-way. Since the right-of-way had been issued subject to valid and existing rights, BLM held that the channel change right- of-way was null and void as to lands within the Native allotment.

Alaska appealed, asserting that its right-of-way is a valid existing right to which Goodlataw’s Native allotment is subject. The IBLA agreed with Alaska and held that, because Goodlataw’s occupancy of the land began after the land had been withdrawn, his occupancy did not constitute a valid existing right when the right-of-way was issued to the state. Accordingly, Goodlataw’s allotment application could only properly be approved subject to Alaska’s right-of-way, and the decision canceling the right-of-way was in error.

State of Alaska Department of Transportation & Public Facilities (Sabon Allotment), 154 IBLA 57 (2000)

This case involved Alaska’s appeal from a BLM decision declaring Alaska’s highway right-of-way null and void to the extent that it embraced lands within a Native allotment.

In 1966, BLM issued a right-of-way to Alaska for highway purposes (realignment of a highway), subject to “all valid rights existing on the date of the grant.” The Alaska Native, Florence Sabon, applied for an allotment in 1971 and claimed use and occupancy starting in 1954. In 1983, BLM determined that Sabon’s application had been legislatively approved under section 905(a)(1) of ANILCA. BLM’s decision also stated that the land was valuable for oil and gas and that the allotment would be subject to a highway easement transferred to Alaska under the Alaska Omnibus Act. Subsequently, in a 1998 decision, BLM applied the relation back doctrine and concluded that part of Alaska’s right-of-way was null and void due to Sabon’s allotment.

In considering the state’s appeal, the IBLA concluded that Alaska’s right-of- way is a valid existing right to which the Sabon allotment is subject. The IBLA found that, at the time Sabon claimed she commenced her use and occupancy, the land had been withdrawn from all forms of appropriation and reserved for highway purposes by the Department of the Interior’s Public Land Order (PLO) No. 601 (14 Fed. Reg. 5048 (August 16, 1949)). Thus, her allotment could not relate back to that time, as the land was not available. Subsequently, in 1958, PLO No. 1613 revoked PLO No. 601 and made the lands available for settlement claims but provided an easement for highway purposes on these previously withdrawn lands. PLO No. 1613 also prohibited the use of the lands within the easements for other than the highways except with the permission of the Secretary of the Interior.

The IBLA concluded that the legislative approval of Sabon’s claim constituted permission under PLO No. 1613. However, while PLO No. 1613 permitted Sabon to commence use and occupancy in 1958, it also made that use and occupancy subject to the highway easement. Accordingly, the IBLA reversed BLM’s decision as to the portions of the right-of-way that were located within the easement established by PLO No. 1613 and ruled that the Sabon allotment must be subject to any portion of the state’s right- of-way within the easement.

Cases Analyzing Whether the Quiet Title Act Precludes Judicial Review of IBLA Decisions Concerning the Relation Back Doctrine

The IBLA decisions concerning the relation back doctrine generally cannot be appealed in the federal courts because the courts lack jurisdiction under the Quiet Title Act. The Quiet Title Act waives the sovereign immunity of the United States in actions to adjudicate title disputes involving real property in which the United States claims an interest. However, the Quiet Title Act does not apply to “trust or restricted Indian lands.” Federal courts have ruled that, under this exception, federal courts do not have jurisdiction to review the IBLA’s decisions concerning application of the relation back doctrine to rights-of-way over Native allotments.

Alaska v. Babbitt (Albert Allotment), 38 F.3d 1068 (9th Cir. 1994)

The State of Alaska brought suit against the Department of the Interior seeking judicial review of the IBLA’s decision, applying the relation back doctrine, that Alaska’s rights-of-way over a Native allotment were null and void. The Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of the lawsuit and held that sovereign immunity was not waived under the Quiet Title Act. The appeals court also addressed the IBLA’s application of the relation back doctrine and stated that the IBLA’s analysis of relation back in its adjudication of the Albert allotment was not arbitrary or frivolous.

Alaska v. Babbitt (Foster I), 67 F.3d 864 (9th Cir. 1995) (amended and superseded by 75 F.3d 449 (9th Cir. 1996))

The State of Alaska brought suit against the Department of the Interior seeking judicial review of an IBLA decision that a Native allotment applicant’s right to land took preference over the state’s highway right-of- way. The Court of Appeals for the Ninth Circuit held that the government was immune from suit under the Quiet Title Act. In addition, the court rejected the state’s assertion that the IBLA had restricted the relation back doctrine.

Alaska v. Babbitt (Foster II), 75 F.3d 449 (9th Cir. 1996) (amended and superseded Foster I decision)

The State of Alaska brought action against the Department of the Interior, seeking judicial review of an IBLA decision that a Native allotment applicant’s preference right to land took preference over the state’s highway right-of-way. The Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of the lawsuit, holding that the Quiet Title Act renders the government immune from suit. The court stated that its decision was based primarily on the authority of its earlier decision in Alaska v. Babbitt (Albert Allotment), 38 F.3d 1068 (9th Cir. 1994). The court did not address the merits of the action, focusing solely on whether the United States had waived its sovereign immunity to allow an appeal from an IBLA decision. In the reissued opinion, the court deleted language contained in its earlier opinion concerning the IBLA’s use of the relation back doctrine.

Alaska v. Babbitt (Bryant Allotment), 182 F.3d 672 (9th Cir. 1999)

The Court of Appeals for the Ninth Circuit held that, under the facts of this case, sovereign immunity was waived under the Quiet Title Act and judicial review of an IBLA decision concerning a state materials site right-of-way over a Native allotment was permitted. In 1961, the United States granted a material site right-of-way to the State of Alaska. The grant was amended in 1969. In 1970, Bryant, an Alaska Native, filed an application for an allotment, based on use beginning in 1964 (3 years after the initial grant of the right-of-way to Alaska). BLM approved the allotment. The state’s challenge to the allotment was dismissed by the IBLA, and the state appealed. The district court dismissed the action for lack of jurisdiction under the Quiet Title Act. The Ninth Circuit reversed. The appeals court observed that, subsequent to the IBLA’s decision in Bryant’s case, the IBLA changed its interpretation of the law. Specifically, in the 1997 Goodlataw case, the IBLA had held that commencement of the use and occupancy period for a Native allotment is without “color of law” if the state already has a right-of-way at the time. The Ninth Circuit determined that, under Goodlataw, the IBLA would now find that Bryant was not occupying the land under “color of law” because the state’s right-of-way was in effect when he began using the land. Since the allottee did not have a colorable claim that the land at issue was Indian land, the Indian lands exception under the Quiet Title Act did not apply.

Other Applications of Relation Back Doctrine

The doctrine of relation back is not unique to Native allotment cases and, for over a century, has been applied in other contexts, in particular civil and criminal forfeiture. As with holders of rights-of-way that cross Native allotments, application of the relation back doctrine in forfeiture cases can adversely affect the rights of third parties.

For example, in an 1889 case concerning forfeiture of property used in a crime, the Supreme Court stated: “By the settled doctrine of this Court, whenever a statute that upon the commission of a certain act specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immediately upon the commission of the act . . . and the condemnation, when obtained, relates back to that time, and avoids all intermediate sales and alienations, even to purchasers in good faith.” United States v. Stowell, 133 U.S. 1, 16-17 (1889).

One hundred years later, in United States v. 92 Buena Vista Avenue, 507 U.S. 111 (1993), the Supreme Court discussed the relation back doctrine in a drug trafficking case. In Buena Vista, the government sought to require a homeowner to forfeit a house that had allegedly been purchased with drug trafficking proceeds. The issues before the Court were whether ownership vested in the government at the time the house was purchased with the drug trafficking proceeds, and whether the homeowner could assert an innocent owner defense. In analyzing these issues, the Court stated that the relation back doctrine is not self-executing and does not make the government an owner of property before forfeiture has been decreed, thus allowing the purchaser to assert an innocent owner defense. However, if the government obtains a decree of forfeiture, the decree establishes the government’s title to the property as of the date of the underlying offense and supersedes all subsequent transfers to third parties. “By the doctrine of relation is meant that principle by which an act done at one time is considered by a fiction of law to have been done at some antecedent period. It is usually applied where several proceedings are essential to complete a particular transaction, such as a conveyance or deed. The last proceeding which consummates the conveyance is held for certain purposes to take effect by relation as of the day when the first proceeding was had. 237 U.S. at 167, quoting Gibson v. Chouteau, 13 Wall. 92, 100-101 (1871).”

The above are examples of application of the relation back doctrine by courts under common law principles. The doctrine also has been incorporated in statutes, including those dealing with drug trafficking and money laundering. For example, 18 U.S.C. § 981(f) and 21 U.S.C. § 881(h) codify the relation back doctrine, providing that “all right, title, and interest in property . . . shall vest in the United States upon the commission of the act giving rise to forfeiture. . . .” Under these statutes, although a judgment resulting in civil forfeiture takes place some period of time after the commission of the illegal act, title to the property passes to the government when the illegal act was committed. However, in these cases, another statute, the Civil Asset Forfeiture Act, provides an innocent owner defense. The act states that “an innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute.” 18 U.S.C. § 983(d). Accordingly, for example, a bona fide purchaser for value may have a defense to forfeiture of the property.

Status of the 34 Native Allotments Identified by Alaska Realty and Copper Valley Where Conflicts Were Suspected to Exist

This appendix contains two tables on the universe of 34 Alaska Native (Native) allotments identified by Alaska Realty and Copper Valley where conflicts were suspected to exist. Table 6 shows each of the 34 Native allotments categorized by its current status.

Table 7 shows the list of the 34 Native allotments categorized by the date the Native allotment was certified. Half of the Native allotments, 17 out of 34, were certified prior to the IBLA’s 1987 decision on the relation back doctrine, including 6 that were certified prior to ANILCA in 1980. Also, about half of the Native allotments were approved under the 1906 Native Allotment Act, and about half were legislative approved under ANILCA.

Comments from the Department of the Interior

Comments from the State of Alaska

Comments from the Copper Valley Electrical Association

The following are GAO’s comments on the Copper Valley Electrical Association’s letter dated August 13, 2004.

GAO Comments

Copper Valley commented on our recommendation and the legislative options, both of which are discussed in the Agency Comments and Our Evaluation section of this report. Copper Valley also provided technical comments, which we incorporated as appropriate. In addition, discussed below are GAO’s corresponding detailed responses to some of Copper Valley’s comments. 1. GAO has not concluded that Copper Valley is trespassing on allotments, rather, our report states that Interior and/or Alaska Realty have determined that Copper Valley is trespassing or allegedly trespassing across Native allotments. 2. We acknowledge Copper Valley’s goal of serving all potentially eligible customers in its service area and its requirement that customers agree to a blanket easement across their property without cost to Copper Valley. However, Copper Valley has been inconsistent in how it has dealt with securing rights-of-way across Native allotments. For example, as stated in our report Copper Valley has negotiated a right-of- way and compensated Native allottees for use of the land in the following cases: Howard Adams (1998 right-of-way), Delores Lausen (1997 right-of-way), and Nicolas Tyone (1996 right-of-way). 3. Yes, as noted in our report, we state that while several relation back cases have been identified so far in the Copper River area, other cases may exist. 4. Yes, we agree that in these cases the relation back doctrine could presumably have been applied to invalidate Copper Valley’s right-of- way, if Copper Valley had obtained a right-of-way. As our report notes, because Copper Valley did not obtain BIA approval and was not granted a right-of-way through these Native allotments, they are not examples of the relation back doctrine. BLM’s 1982 right-of-way decision affecting these Native allotments was 5 years before Interior started applying the relation back doctrine to Native allotments. The decision was based on a 1979 Memorandum of Understanding between BLM and BIA and not on the relation back doctrine. 5. GAO has no position on this case and did not intend to comment on the merits of this case. We have revised the footnote by deleting the phrase “in error” and we have noted Copper Valley’s appeal to the IBLA.

GAO Contacts and Staff Acknowledgments

GAO Contacts

Staff Acknowledgments

In addition to those individuals named above, John Delicath, Doreen Stolzenberg Feldman, José Alfredo Gómez, Paul Staley, Carrie Wilks, and Arvin Wu made key contributions to this report.

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