32 ELR 20319 -- Akootchook v. United States

Akootchook v. United States

No. 00-35325 (271 F.3d 1160) (UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT November 8, 2001)

ELR Digest

The court holds that the Interior Board of Land Appeals (IBLA) may require applicants for land allotments under the Alaska Native Allotment Act (ANAA) to prove personal use and occupancy independent of immediate family members prior to withdrawal of the land from the public domain. The IBLA denied the applicants requests for land allotments because prior to the lands withdrawal from the public domain, the applicants has used the lands only as minors and under the control and supervision of their parents. Thus, the applicants did not begin to use the lands as independent citizens in their own right until after the lands were withdrawn. The applicants filed an action in district court, but the district court dismissed, holding that an earlier class action suit barred the present claims under the doctrine of res judicata.

The court first holds that the district court erred in finding that the applicants' claims were barred by res judicata. The applicants' claim differs from that in the class action suit because the individuals are not asserting rights to allotments based on ancestral use of the land but rather on their own personal use of the land when they were children. Further, their personal use claims were not ripe for review at the time of the class actions. Third, requiring the applicants to bring their personal use claims in a class action would destroy the purpose of class actions. The court next holds that the IBLA's interpretation of substantial use and occupancy under the applicable regulation is entitled to deference. The right to an allotment is personal to the applicant and not a communal right. Further, it is reasonable to require the applicant to show hallmarks of personal use independent of any family members. Last, the court holds that because none of the applicants could establish personal use independent of other family members, the IBLA's denial of all five applications for allotments was not arbitrary and capricious or an abuse of discretion.

The full text of this decision is available from ELR (15 pp., ELR Order No. L-400).

Counsel for Plaintiffs
Harold J. Curran
Alaska Legal Services Corporation
1648 S. Cushman St., Ste. 300, Fairbanks AK 99701
(907) 452-5181

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

[32 ELR 20319]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]