DECISIONS OF THE DEPARTMENT OF THE INTERIOR VALID EXISTING RIGHTS SECRETARIAL ORDER NO. 3016 SUBJECT: VALID EXISTING § 38.05.077, or patented by the State under Alaska Stat. § 38.05.077, valid existing rights were created within the meaning of ANCSA. I also conclude that land covered by such a lease from the State should be included in any conveyance to a Native corporaDec. 14, 1977 tion, but the option to buy will be enforceable by the lessee against the Native corporation. The Bureau of Land Management should identify any third party interests created by the State, as reflected by the land records of the State of Alaska, Division of Lands, and serve notice on all parties of each other's possible interests, but this Department should not adjudicate these interests. This Order is not intended to disturb any administrative determination contained in a final decision previously rendered by any duly authorized Departmental official. Sec. 3 Effective Date. This Order is effective immediately and shall remain in effect until June 1, 1979 at which time it will be converted into the Departmental Manual. Sec. 1 Purpose. The purpose of this Order is to resolve for the future certain specific questions which have arisen in the implementation of that Act. Sec. 2 Policy. By this Order I hereby adopt the memorandum from the Solicitor dated Nov. 28, 1977 (copy attached), as the position of the Department on the subject of valid existing rights under the Alaska Native Claims Settlement Act. I conclude that if prior to the passage of the Alaska Native Claims Settlement Act (ANCSA) lands which were tentatively approved for state selection were conveyed by the State of Alaska to municipalities or boroughs, leased by the State with an option to buy under Alaska Stat. *Not in Chronological Order. Caried Andrus Secretary of the Interior. 85 I.D. No. 1 VALID EXISTING RIGHTS UNDER THE ALASKA NATIVE CLAIMS Alaska: Statehood Act-Alaska Native Claims Settlement Act: GenerallyAlaska Native Claims Settlement Act: Native Village Land Selections: Generally Lands tentatively approved for state selection and conveyed by the state to municipalities or boroughs prior to enactment of ANCSA are not available for native selection under ANCSA. Alaska: Statehood Act-Alaska Native Claims Settlement Act: GenerallyAlaska Native Claims Settlement Act: Native Village Land Selections: Generally Lands tentatively approved for state selection and leased by the state to individuals with an option to buy will, if selected by a Native corporation, be included in the interim conveyance with the provision that the option to buy may be exercised against the Native corporation. Where the option has been exercised against the state and a state patent issued prior to the enactment of ANCSA, the land will be excluded from interim conveyance to the Native corporation. Alaska: Statehood Act-Alaska Native Claims Settlement Act: GenerallyAlaska Native Claims Settlement Act: Native Village Land Selections: Generally-Alaska Native Claims Settlement Act: Administrative Procedure: Interim Conveyance Third party rights created by the state in lands selected by natives under ANCSA should be identified by BLM in the decision to issue interim conveyance if possible, but need not be adjudicated. Alaska: Statehood Act-Alaska Native Claims Settlement Act: Generally— Alaska Native Claims Settlement Act: Native Village Land Selections: Generally-Alaska Native Claims Settlement Act: Administrative Procedure: Interim Conveyance ANCSA and the implementing regulations draw a basic distinction between valid existing rights leading to the acquisition of title and those of a temporary nature, requiring exclusion of the former from the interim conveyance but inclusion of the latter with provisions protecting the third parties rights for the duration of his interest. The statute and the implementing regulations do not distinguish, in protecting rights leading to the acquisition of title between those arising under federal law and those arising under state law. Appeal of Eklutna, 1 ANCAB 190, 83 I.D. 619 (1976), modified; Appeals of the State of Alaska and Seldovia Native Association, Inc., 2 ANCAB 1, 84 I.D. 349 (1977), modified. Nov. 28, 1977 MEMORANDUM To: SECRETARY OF THE INTERIOR. FROM: SOLICITOR. SUBJECT: VALID EXISTING RIGHTS UNDER THE ALASKA NATIVE CLAIMS SETTLEMENT ACT Certain questions have arisen in connection with the implementation of the Alaska Native Claims Settlement Act (ANCSA),1 including an issue on which there is apparently a conflict between a decision by the 143 U.S.C. §§ 1601-1629 (1974). SETTLEMENT ACT December 14, 1977 2 Interior Board of Land Appeals (IBLA) and two decisions issued by the Alaska Native Claims Appeal Board (ANCAB).3 To the extent that the opinions have created uncertainty as to the Department's policy and legal position with respect to the implementation of ANCSA, the policy and legal position should be clarified. ISSUES PRESENTED 1. Are lands which were tentatively approved for State selection available for conveyance to Native corporations when they are located within the area withdrawn for Native selection by sec. 11 (a) (2) of the ANCSA if prior to the enactment of ANCSA the lands had been a. conveyed by the State to municipalities or boroughs? b. leased with an option to buy by the State to individuals under the State's "open to entry" program? c. patented by the State to individuals under the State's "open to entry" program? 2. If "open to entry" leases are "valid existing rights" should the land be excluded from the conveyance to Natives or should it be included in the conveyance as a "subject to" interest? 3. To what extent does ANCSA require the Department to determine whether third party rights acquired under State laws are valid? 2 State of Alaska, 19 IBLA 178 (1975). Appeal of Eklutna, 1 ANCAB 190, 83 I.D. 619 (1976); Appeals of the State of Alaska and Seldovia Native Association, Inc., 2 ANCAB 1, 84 I.D. 349 (1977). CONCLUSION 1. I conclude that all three of the third party interests identified within the meaning of ANCSA. above are "valid existing rights" 2. I conclude that the land cov ered by an "open to entry" lease should not be excluded from the Natives' conveyance but that the option to buy will be enforceable by the lessee against the Native corporation. 3. I conclude that the validity of third party interests which were created by the State should be identified if possible to put all interested parties on notice, but need not be adjudicated. DISCUSSION From the time the United States acquired possession of Alaska from Russia, Congress recognized in a general way the claims of Alaska Natives to the land they had used and occupied. Thus in 1884 Congress declared: "The Indians *** shall not be disturbed in the possession of any lands actually in their use and occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress." Act of May 17, 1884 (23 Stat. 24). At the time of the Alaska Statehood Act, July 7, 1958 (72 Stat. 339), Congress recognized that these aboriginal claims would be a potential cloud on the land conveyances to the State and would have to be addressed by Congress. Sec. 4 of the Statehood Act provides in pertinent which it had received tentative appart: [T]he State and its people * * forever disclaim all right and title * to any lands *** which may be held by any Indians, Eskimos, or Aleuts such lands * * remain under the absolute jurisdiction *** of the United States until disposed of under its authority, The legislation addressing the land claims of Alaska Natives came in 1971, thirteen years after the Statehood Act. During the thirteeninterim the State received year patent to about 4.8 million acres and "tentative approval" to about 7.7 million acres or more. It had filed selections on an additional 15 mil lion on which no federal action had been taken. The concept of tentative approval comes from sec. 6(g) of the Statehood Act which states in pertinent part: * Following the selection of lands by the State and the tentative approval of proval. Among these were conveyances to boroughs and municipalities under State Statute A.S. § 29.18.190, and conveyances by the State under its "open to entry" program A.S. § 38.05.077, as well as mineral leases, timber sales contracts, free use permits, water rights certificates and others. The determination of whether these rights survive Native selection under ANCSA could begin with an analysis of the nature of the State's title to tentatively approved lands. It is argued that the State's title is a vested title subject only to being voided if Native occupancy could be proved. Edwardsen v. Morton, 369 F. Supp. 1359 (D.D.C. 1973) is cited both for and against this proposition. It was also argued during the debates which preceded ANCSA that the State's tentatively approved selections, being vested such selection by the Secretary of the In- rights, could not be used by Con terior✶✶✶ but prior to the issuance of final patent, the State is hereby authorized to execute conditional leases and to make conditional sales of such selected lands. * The implementing regulations gress to settle the aboriginal claims without compensation to the State. If the protection which the third party grantees received is to be found in common law property prin (43 CFR 2627.3(d)) provide that ciples outside of ANCSA, these ex ceedingly complex questions would have to be resolved. Since I conclude that protection of third party interests created by the State is provided in ANCSA, I need not deter "tentative approval" will be issued only "after determining that there is no bar to passing legal title *** other than the need for survey of the lands or for the issuance of pat-mine whether such persons are also ent or both." By the time ANCSA was enacted the State had created several types of third party interests on land to Set forth in full in Appendix A, p. 9. protected by principles outside of ANCSA. A fundamental principle of ANCSA is that "All conveyances made pursuant to this Act shall be |