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Alaska v. Babbitt

ELR Citation: 29 ELR 21251
Nos. No. 95-36122, 182 F.3d 672/(9th Cir., 06/18/1999)

The court holds that a district court has jurisdiction under the Quiet Title Act (QTA) to review an Interior Board of Land Appeals' (IBLA's) decision that a Native American's claim for an allotment of land under the Native Allotment Act takes precedence over a state's earlier right-of-way grant in that land. The court first notes that the QTA's Native American lands exception, which bars suits against the United States regarding Native American lands, applies only if the lands at issue are Native American lands, or at least colorably so. The court then holds that there is no colorable basis for application of the Native American lands exception in this case. Since the district court's initial decision that it lacked jurisdiction, the IBLA has held that commencement of the use and occupancy period for a Native American allotment is without "color of law" if the state already has a right-of-way at the time, that a materials site right-of-way suffices to bar effective use and occupancy by the would-be allottee, and that subsequent elimination of the right-of-way does not retroactively give "color of law" to the Native use and occupancy. In this case, the state's 1961 right-of-way was in effect when the Native American commenced use of the land.

The court next holds that because the IBLA would now apparently hold that the Native American's commencement of use and occupancy was not made under color of law, application of the Native American lands exception lacks a rational basis, and the district court has jurisdiction to review the IBLA's decision.

Counsel for Plaintiff
E. John Athens Jr., Ass't Attorney General
Attorney General's Office
First National Center
100 Cushman, Fairbanks AK 99701
(907) 451-2811

Counsel for Defendants
Andrew C. Mergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Noonan and Thompson, JJ.