Appeal from the United States District Court for the District of Alaska. D.C. No. CV-92-00018-JWS. John W. Sedwick, District Judge, Presiding.
Before: Harry Pregerson, William C. Canby, Jr., and Robert Boochever, Circuit Judges. Opinion by Judge Canby.
Minchumina Natives, Inc. ("MNI"), a group of seven Alaska Natives claiming to reside near Lake Minchumina, Alaska, seeks recognition as a "Native group" under the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. §§ 1601-1629. MNI can qualify as a "Native group" only if its Native members "comprise a majority of the residents of the locality." Id. at § 1602(d); see Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457-58 (9th Cir. 1990). Whether they constitute a majority depends entirely upon how the boundaries of "the locality" are drawn; those boundaries are the subject of this appeal.
The Bureau of Indian Affairs initially accepted the narrow boundaries claimed by MNI, which enclosed the smallest area that included all of the members' residences. Those boundaries, however, were expanded by an administrative law Judge and then again by the Interior Board of Land Appeals. After disqualifying those who were not resident on the crucial date of April 1, 1970, the Board found that the expanded locality included four Natives and six non-Natives. It accordingly denied recognition of MNI as a Native group. The district court affirmed, and MNI appeals.
We vacate the decisions of the district court and the Board, and order the case remanded to the Board for further proceedings.
Val Blackburn and Tom Flood were non-Native trappers, who moved into the Lake Minchumina area, in the center of Alaska, after the federal government constructed an airstrip at the edge of the Lake during World War II. Their Native wives and their children (who are also Native because they possess more than one-quarter degree of Native blood)*fn1 formed Minchumina Natives, Inc., in order to seek recognition and benefits as a Native group.
At the times in issue, there were only a few other households around Lake Minchumina, some near the Blackburns and Floods on the West side of the Lake, and others farther away on other shores. The nearest towns are nearly one hundred miles away by air.
In 1976, MNI filed with the Department of the Interior an application for recognition as a Native group. That category was designed for the benefit of communities of Natives which, because of their sparse population, were ineligible to qualify as Native villages. See 43 U.S.C. § 1602(c). Under 43 U.S.C. § 1602(d), a Native group is "any tribe, band, clan, group, village, community or association of Natives in Alaska composed of less than twenty-five Natives, who comprise a majority of the residents of the locality." Among other benefits, a recognized Native group is entitled to receive fee title to as many as 320 acres of public land per member in the area in which the group lives.*fn2 See 43 C.F.R. § 2653.6(b).
Seven years after MNI applied, the Bureau of Indian Affairs determined that the group was eligible for recognition. After examining the history and geography of the Lake Minchumina area, the BIA determined that the locality included the lands of the Flood and Blackburn families and the land between their homes. Within this locality, the Native residents outnumbered non-Native residents and, thus, the group was eligible for recognition.
Non-Native homeowners in the area, who alleged they would be adversely affected by the grant of public lands to the group, appealed the BIA's ruling and obtained a reversal. The administrative law Judge drew the boundaries of the locality more widely than had the BIA, bringing in an additional non-Native resident. The ALJ also ruled that one of the Blackburn children, who was away attending college on the relevant date, should not be considered in the equation. The ALJ concluded that, in all, the locality contained three Natives and three non-Natives - not a Native majority as required for recognition.
MNI appealed the ALJ's decision to the Interior Board of Land Appeals. After a de novo review, the Board held that the Native student who was away at college should be considered a resident of the locality. The Board, however, drew the boundaries of the locality even more expansively than had the administrative law Judge. First, it included the Federal Aviation Administration ("FAA") land comprising the airport, because the access to the airport was open and the FAA facilities, such as a telephone and meeting room, had been used by the community.
The Board also included in the locality the Holmes residence, which was separated from the center of the new locality by the airport. It included the Holmes residence even though it was not located in the "same relative proximity" as others in the area, for two reasons: (1) the Holmeses would be affected if land adjacent to theirs were conveyed to MNI, and (2) the Holmes residence was the location of the electric power plant, store, and telephone for those at the lake. With the addition of the Holmeses, and a man named White who lived at the FAA installation at the Lake Minchumina airport, the ...