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L. Capener v. Tanagusix Corp. (11/4/94), 884 P 2d 1060
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
LILLIAN CAPENER, )
) Supreme Court No. S-4598
) Superior Court No.
v. ) 3AN-88-9062 CI
TANADGUSIX CORPORATION, ) O P I N I O N
Appellee. ) [No. 4142 - November 4, 1994]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Dana Fabe, Judge.
Appearances: John E. Havelock, Ely &
Havelock, Anchorage, for Appellant. Terrance
A. Turner, Scott J. Nordstrand, Owens &
Turner, P.C., Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
COMPTON, Justice, dissenting.
The Alaska Native Claims Settlement Act (ANCSA or the
Act) enacted in 1971 (codified at 43 U.S.C. 1601-1629a (1986))
extinguished the aboriginal title claims of the Native people of
Alaska in exchange for 962.5 million dollars and 44 million acres
of public land. In order to receive this money and land, the Act
called for the creation of thirteen regional and over two hundred
village corporations. See Kenai Peninsula Borough v. Cook Inlet
Region, Inc., 807 P.2d 487, 490 (Alaska 1991).
Congress included in ANCSA a number of provisions
designed to protect the rights of those who have valid existing
rights to land subject to conveyance under the Act. Thus
conveyances to Native corporations must be made subject to the
provisions of existing leases, contracts and permits. ANCSA
14(g), 43 U.S.C. 1613(g). Those who have made prior lawful
entries for the purpose of gaining title to a homestead, a
headquarters site, a trade and manufacturing site, or a small
tract site are protected and entitled to a patent when they meet
the requirements of the law under which they enter. ANCSA
22(b), 43 U.S.C. 1621(b). Similarly, those who have prior
valid mining claims and locations are protected. ANCSA 22(c),
43 U.S.C. 1621(c). In addition, there are provisions which
require conveyances to individuals or organizations on the basis
of their occupancy for a particular purpose rather than the
presence of a valid existing right or a lawful entry under the
public land laws. This case involves the interpretation of two
such provisions, sections 14(c)(1) and (2).1 See 43 U.S.C.
1613(c)(1) & (2).
Section 14(c)(1) requires village corporations to
reconvey land "to any Native or non-Native occupant"who occupied
the land on a specific date,2 for any one of four designated
purposes: as a primary residence, a primary place of business, a
subsistence campsite, or a headquarters for reindeer husbandry.
Section 14(c)(2) requires village corporations to reconvey to
"the occupant"land which is occupied as of December 18, 1971,3
by a nonprofit organization. The main issue in this case is the
meaning of the term "occupant"as used in these sections.
II. FACTS AND PROCEEDINGS
Lillian Capener is a missionary affiliated with the
Assemblies of God Church. She and her husband, Reverend A.E.
Capener, built a church, house and garage on federal land in the
village of St. Paul in 1966. The Capeners entered the land under
the auspices of a special use permit issued by the Bureau of
Commercial Fisheries to the "Assemblies of God Home Missions
Department"dated July 7, 1966. The permit was for the described
purpose of "constructing, establishing, creating, and maintaining
a church and parsonage, and for no other purpose whatever during
the period from July 1, 1966, to June 30, 1976." The permit
provided for automatic yearly renewals after June 30, 1976,
unless terminated with thirty days written notice.
Reverend and Mrs. Capener constructed the church
building on Lot 1, Block 20, City of St. Paul. Their house was
located on Lot 3. The Capeners added a small garage, a large
garage and a basement to the house. The large garage has been
used for a motorcycle rental and tourist service business since
1972 or 1973. Mrs. Capener testified that Lot 2 is used for
parking and as a garden incidental to her business and home.
In 1974 the Village Corporation of St. Paul, Tanadgusix
Corporation (TDX), selected property under ANCSA which
encompassed the lots in question.4 In 1979 the Bureau of Land
Management issued a patent to TDX which included these lots,
subject to existing permit rights and to the duty to convey if
and as required by section 14(c) of ANCSA.
In September of 1980 TDX informed the Capeners and the
Home Missions Department that it now administered the special use
permit. TDX notified them that it was terminating the permit as
of June 30, 1981, unless new lease arrangements could be made.
The Home Missions Department and the Capeners refused to enter
into a lease and asserted a claim under section 14(c) of ANCSA.
A.E. Capener died in 1986. Lillian Capener continued to reside
on the property, to conduct church services, and to operate the
motorcycle rental and tourist service business.
Effective June 19, 1988, TDX purported to terminate the
special use permit. On August 2, 1988, Capener and W.J.
Bransford, District Superintendent of the Alaska District
Council, Inc., an Assemblies of God organization, were sent
notices to quit the St. Paul premises. A few days later Capener
discussed the situation with Assembly of God officials in
Anchorage and Missouri and was told "I could have this property
to do with as I wish, as at the time, they could not afford the
legal expenses. They specifically called to tell me that I could
'sell' it for whatever I wished and I could 'keep the money.'"
On August 10, 1988, Bransford, on behalf of the Home Missions
Department and the Alaska District Council, Inc., signed a
document which "disclaims all interest"in the lots and the
special use permit.
On September 12, 1988, TDX filed a forcible entry and
detainer action against Capener. The trial court dismissed the
complaint because a question of title had been raised. TDX was
allowed to amend its complaint to assert claims for ejectment and
quiet title. Capener counterclaimed, contending that title ought
to be quieted in her favor. She also sought a declaration that
she is the lawful owner of the lots. Both parties moved for
summary judgment. The trial court granted the motion of TDX,
denied that of Capener, and entered a final judgment in favor of
TDX on all of its claims. This appeal followed.
A. Section 14(c) contentions.
The major issues in this case require an understanding
of the meaning and operation of sections 14(c)(1) and (2) of
ANCSA. We set forth these provisions as well as section 14(c)(3)
in the margin at this point.5
Capener relies on sections 14(c)(1) & (2) to support
her right to title to the property in question. Her first
argument, concerning Lots 2 and 3, is essentially a plain
language argument. She contends that the literal language of
14(c)(1) only requires occupancy, as of January 19, 1979,6 as a
primary residence or primary place of business. She argues that
she meets this requirement as she had occupied the house as her
residence for more than eleven years as of the critical date and
had used the annexed garage for her rental and tourist service
business for some six years.
With respect to Lot 1, the church building, Capener
contends that the Assemblies of God faith is not of a
hierarchical nature and that each minister and local church is
autonomous. She argues that the local church, an unincorporated
nonprofit organization, has been the occupant of Lot 1 since well
before the critical date under section 14(c)(2), December 18,
1971, and under a plain reading of that section is therefore
entitled to a conveyance. She is its representative and should,
she contends, take title as trustee.
With respect to all three lots, Capener makes an
alternative claim that she is the transferee of the Home Missions
Department because it "yielded any interest it might have to her
in advance of the general disclaimer."
TDX makes two arguments as to why Capener should not be
considered an occupant despite her claim that she meets the
literal definition of that term. First, TDX argues that the fact
that the permittee was the Home Missions Department disqualifies
Capener from occupant status. Second, TDX argues that even if
Capener had been the permittee, she could not have received a
conveyance because the permit was revocable.
Concerning Capener's argument that the local church
organization was the occupant of the church building, TDX
similarly contends that the fact that the permit was issued to
the Home Missions Department disqualifies any such local
organization from claiming rights under section 14(c)(2) as an
occupant. With respect to Capener's claim that the Home Missions
Department orally transferred the property to her, TDX contends
that such a transfer would be ineffective because the Home
Missions Department had no conveyable legal interest, transfer of
the permit was invalid under the terms of the permit, and the
transfer was barred by the statute of frauds.
B. Summary of questions presented and holdings under
The parties' arguments raise at least three legal
questions which require resolution in this case. They can be
expressed as follows:
1. Assuming the occupancy purpose
requirements of section 14(c)(1) or (2) are
met, can a permittee under a revocable permit
be an occupant entitled to a reconveyance?
2. Assuming the occupancy purpose
requirements of section 14(c)(1) or (2) are
met, can one who occupies property which is
subject to a revocable permit issued to
another be an occupant entitled to a
3. Can the right to reconveyance
under section 14(c)(1) or (2) be transferred
subsequent to the occupancy date set forth in
For the reasons that follow, our answers to these questions are:
2. Yes, if the occupier has an
equitable ownership interest in the
improvement on the property on the legal
Because questions of fact exist concerning the
equitable ownership interest of Capener and the local church, and
concerning whether a transfer was intended from the Home Missions
Department to Capener, we reverse the judgment of the superior
court and remand this case for further proceedings.
C. The trial court's opinion.
The trial court explicitly dealt only with Capener's
argument that she was an occupant of the residence and place of
business under section 14(c)(1). The court's opinion on this
point was as follows:
In its briefing, TDX correctly
asserts that only the church possessed a
possible 14(c)(1) claim, a claim which has
never been adjudicated and which the church
has now disclaimed. Mrs. Capener occupied
the land subject to the church's rights, and
the church, not Mrs. Capener, received the
permit. As TDX points out, the church could
have removed the Capeners from the property
at any time.
TDX also points to the fact that
the permit was subject to revocation, and
argues that TDX validly exercised this
revocation right. TDX further argues that
the property could not qualify as a primary
place of business, because the rental
business constitutes an unlawful occupation,
run in violation of the permit, and without
The Alaska Supreme Court, in
interpreting 14(c), broadly interpreted the
"primary place of business"requirement. In
Hakala v. Atxam, 753 P.2d 1144 (1988), the
court found that Congress intended 14(c)(1)
to give title to people who "had previously
utilized the lands in an established, legal
and routine fashion". Id. at 1147. The
United States Court of Appeals in Donnelly v.
United States, 850 F.2d 1313 (9th Cir. 1988),
articulated the other side of the spectrum
when it held that 14(c)(1) could not be
used to give "amnesty" for "trespassers,
failed homesteaders, or land users without
any vested rights prior to December 1, 1971".
Id. at 1320 (quoting the District Court).
The Donnelly court added that "there was no
indication of congressional intent to
override the established principle that
individuals could obtain no rights to
withdrawn lands. . . ." Moreover, the
congressional intent to provide a "just and
fair settlement"of native land claims is
inconsistent with an interpretation of
14(c)(1) that could reduce the land patented
to native corporations in favor of tres
In Hakala, the court wanted "to
protect a wide array of existing legitimate
businesses" and thus granted the appellants,
Hakala and Kitchen, title to a cabin and its
curtilage, from which appellants had
conducted guiding operations for over 15
years. Hakala, 753 P.2d at 1147, 1148. The
Hakala case differs from that of Mrs.
Capener, however, because in Hakala the
business did not violate any permit terms.
In fact, Kitchen had express authority to
conduct this business because he held a
permit, issued by the State of Alaska, that
gave him the exclusive right to guide
customers in the disputed area, as well as a
guiding license. The state, by contrast, has
never issued any permit, license, or similar
right to Mrs. Capener. The state issued a
revocable permit to the church, which had the
right, at any time, to remove the Capeners
and replace them with different missionaries.
Similarly, the appellants Buettner
and Hamar in Buettner v. Kavilco, Inc., 860
F.2d 341 (9th Cir. 1988), personally obtained
revocable special use permits from the United
States Forest Service that allowed each
appellant to live on Kasaan Island. The
Native Corporation of Kavilco then selected
this land, later attempting to revoke the
permits and enter lease agreements, which the
appellants refused. The court found that the
appellants "as permittees . . . were entitled
to occupy the land although it was owned by
someone else", thus deciding that 14(c)(1)
requires native corporations to convey title
to permittees, so long as the permittee
fulfills 14(c)(1)'s occupancy requirements.
Id. at 343. (Emphasis added). Again, unlike
Buettner and Hamar, Mrs. Capener does not
hold a permit. Since her entitlement to
occupy depended solely on the permittee-
church, which could have removed her from the
property at any time, she possesses a far
weaker interest than did the Hakala and
In determining the issues in this
case, it is helpful to examine the
Congressional purpose behind the ANCSA. The
Hakala court stated that Congress intended to
give native tribes "title to a portion of the
lands which they occupied", noting that
Congress was "sensitive to the impoverished
condition of natives and the lack of
opportunity natives have to improve their
condition". Hakala, 753 P.2d at 1147
(quoting House Comm. on Interior and Insular
Affairs, Alaska Native Claims Settlement Act
of 1971, H.R. Rep. No. 523, 92d Cong., 1st
Sess., reprinted in 1971 U.S. Code Cong. &
Admin. News 2191, 2193, 2196). Defendant's
analysis of 14(c)(1) would undermine this
ANCSA purpose, and would contradict the
policy that courts construe the ANCSA in
favor of natives where the statute contains
ambiguous language. Id. at 1147.
Additionally, Secretarial Order No.
3016 and accompanying Memorandum, Valid
Existing Rights Under the Alaska Native
Claims Settlement Act, 85 Interior Dec. 1
(1977), sheds light on the legislative intent
behind the ANCSA. The Memo defines the
meaning of "valid existing rights" in
14(g), which provides that:
All conveyances made
pursuant to this Act shall be
subject to valid existing rights.
Where, prior to patent of any land
or minerals under this Act, a
lease, contract, permit, right-of-
way, or easement (including a lease
. . .) has been issued for the
surface or minerals covered under
such patent, the patent shall
contain provisions making it
subject to the lease, contract,
permit, right-of-way, or easement,
and the right of the lessee,
contractee, permittee, or grantee
to the complete enjoyment of all
rights, privileges, and benefits
thereby granted to him. Upon
issuance of the patent, the
patentee shall succeed and become
entitled to any and all interests
of the state or the United States
as lessor, contractor, permittee,
or grantor, in any such leases,
contracts, permits, rights-of-way,
or easements covering the estate
patented. . . . 43 U.S.C.
1613(g); emphasis added.
The Memo notes that the regulations
distinguish between rights "leading to
acquisition of title", which the Act intends
to exclude from conveyance to natives; and
"rights of a temporary nature", which the Act
intends to convey, but with the condition
that the right be protected "for the duration
of the interest". Id. at 5, citing 43 C.F.R.
The Memo discusses the problem
posed by lands which the state conveyed,
leased or patented before the state had
received final approval for state selection.
It indicates that the position of the
recipients of these types of interests should
not be worsened by the passage of the ANCSA,
saying that "[t]he House Committee report
reflects Congress' concern that a lease
issued by the State which on its terms was
conditional on the issuance of a patent to
the State not be terminated by virtue of the
Native selection". Id. at 6-7, citations
Mrs. Capener did not hold a license
or permit, nor any other vested right or
interest that could "lead to the acquisition
of title"at the time of the Act's passage.
Because Mrs. Capener has no claim which could
have ripened into a title interest had ANCSA
not passed, she cannot now acquire title
because the Act did pass, particularly
considering the Act's purpose of giving title
to Alaska Natives. For these reasons, the
court GRANTS summary judgment in plaintiff's
In terms of the legal questions presented in this case
as defined in part III B, supra, the superior court thus gave a
negative answer to the second question -- whether one who
occupies property subject to a revocable permit issued to another
is entitled to a 14(c) reconveyance. Concerning the first
question -- can a permittee under a revocable permit be entitled
to a reconveyance -- the superior court gave no answer, but
discussed Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir.
1988), which indicates that this question should be answered in
D. Case law interpretations of section 14(c).
As the superior court's decision points out, we inter
preted one aspect of section 14(c)(1) in Hakala v. Atxam Corp.,
753 P.2d 1144 (Alaska 1988), and the Ninth Circuit Court of
Appeals considered this section in two cases, Donnelly v. United
States, 850 F.2d 1313 (9th Cir. 1988) cert. denied by Lee v.
Eklutna, Inc. & Donnelly v. Eklutna, Inc., 488 U.S. 1046 (1989),
and Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir. 1988).
In Hakala, a guide, Kitchen, and his transferee made a
14(c)(1) claim against a village corporation to a small cabin
which Kitchen had erected on public lands. Hakala, 753 P.2d at
1145. The cabin served as the base camp for Kitchen's bear
hunting operations. Id. The main controversy in the case, which
we resolved in favor of Kitchen, was whether the cabin was "a
primary place of business"under 14(c)(1). Id. at 1146-49.
Holding that Kitchen was entitled to a section 14(c)(1)
reconveyance of the cabin site and surrounding curtilage we
We do not . . . believe that
Congress intended under ANCSA to convey lands
to native corporations to the exclusion of
those who had previously utilized the lands
in an established, legal and routine fashion.
Otherwise, we can find no reason for Congress
to have included the reconveyance clause in
14(c)(1). Thus, we believe that in
14(c)(1), Congress intended to protect the
existing rights of those using lands which
would later become subject to an interim con
veyance under ANCSA. Accordingly, we adopt
an interpretation of the phrase "a primary
place of business" which effectuates
Congress' intent to protect the wide array of
existing legitimate businesses.
Id. at 1147. In reaching this conclusion, we adopted Kitchen's
"common-sensical interpretation"of the statutory term "a primary
place of business." Id.
Although the trial court in the present case stressed
that Kitchen had an exclusive guiding permit from the State of
Alaska, such a permit would not have given Kitchen a right to
build a cabin on federal public land. Thus, in Hakala, the
village corporation argued that Kitchen was a trespasser on the
critical date in 1971.7 Kitchen did not contest this assertion.
Our opinion in Hakala neither resolved nor discussed the question
whether Kitchen initially built his cabin on public land without
Donnelly v. United States, 850 F.2d 1313 (9th Cir.
1988), involved the case of homesteaders, the Donnellys, who
located part of their homestead on public lands which had been
withdrawn from entry for a possible power development project.
Id. at 1315. The Donnellys' entry took place some time in the
1950's. In 1975 the United States filed a trespass action
against the Donnellys, who counterclaimed under the Quiet Title
Act, 28 U.S.C. 2409a. Id. at 1316. In 1979 the United States
patented the disputed land to a village corporation against which
the Donnellys filed a third-party claim under section 14(c)(1) of
ANCSA. Id. The United States' trespass action was dismissed.
Id. The district court then decided the case in favor of the
United States and the village corporation. Id. On appeal, the
Ninth Circuit affirmed, holding: (1) that the twelve-year
statute of limitations under the Quiet Title Act barred the
Donnellys' claim against the United States; and (2) the
Donnellys' 14(c) claim against the village corporation lacked
merit because they were trespassers:
As the district court noted,
14(c)(1) could not operate as "a sort of
amnesty provision extending rights to
individuals who are merely trespassers,
failed homesteaders, or land users without
any vested rights prior to December 1, 1971,"
because there was no indication of
congressional intent to override the
established principle that individuals could
obtain no rights to withdrawn lands.
Moreover, the congressional intent to provide
a "just and fair settlement"of native land
claims is inconsistent with an interpretation
of 14(c)(1) that would reduce the land
patented to native corporations in favor of
Id. at 1320 (citation omitted). On rehearing a footnote was
added recognizing that Hakala represented contrary authority:
Counsel for appellant has called to
the attention of the court a decision of the
Supreme Court of Alaska, Hakala and Kitchen
v. Atxam Corp., 753 P.2d 1144 (1988), decided
after the filing of the decision in this
case, that reaches a contrary result.
Id. at 1320-21, n.9.
The Donnelly court went on to discuss the Donnellys'
contention that they were not trespassers as they had equitable
title to the land. Id. at 1321. The court refused to resolve
this issue, holding that it was dependent on the quiet title
claim which was barred by the Quiet Title Act statute of
Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir.
1988), involved the holders of two long-term revocable Forest
Service permits who built residential cabins on the land.
Ultimately, the land was patented to a village corporation which
sought to increase the permittees' rent. Id. at 342. When the
permittees refused to pay the increased rent, the village
corporation sought to eject them. Id. The permittees countered
by bringing a quiet title action which was resolved by the
federal district court in favor of the village corporation. Id.
On appeal the Ninth Circuit reversed, rejecting the village
corporation's argument that the permittees were bound by the
terms of the permit under section 14(g) of the act.8 Id. at 343.
The Ninth Circuit held that the existence of the permits did not
bar the permittees from being entitled to reconveyances under
We discern no inconsistency between
this plain reading of section [14(c)(1)] and
the provisions of section [14(g)]. The
latter section applies to lessees,
contractees, permittees, and grantees of
rights-of-way and easements. It is true that
a person with rights under section [14(g)]
might also have rights under section
[14(c)(1)]. On the other hand, persons
having rights under section [14(g)] will not
necessarily come within the scope of section
[14(c)(1)]. For example, United States
Forest Service special use permit-holders who
did not occupy their sites as a primary
residence on December 18, 1971, would be
protected only by section [14(g)].
Id. at 343. In reaching this conclusion, the Ninth Circuit noted
that its interpretation of 14(c)(1) was in accordance with the
interpretation given that section by this court in Hakala. Id.
E. Purpose of section 14(c).
In determining the meaning of a statute, we begin with
an examination of the language employed construed in light of the
purpose of the statute. Beck v. State, Dept. of Transp. & Public
Facilities, 837 P.2d 105, 117 (Alaska 1992). The purpose of
legislation can often be understood by considering the problem
which the legislation was designed to address.
The overall objective of ANCSA is clear. It is the
prompt and "just settlement of all claims by Natives and Native
groups of Alaska, based on aboriginal land claims . . . ." ANCSA
2, 43 U.S.C. 1601(a). In an enactment of the magnitude of
ANCSA, however, there are many subsidiary, more specific
purposes. The specific purpose of section 14(c) may be
ascertained by an examination of the problem that section was
intended to address.
The central problem was that in most of Alaska's
villages, individual Natives did not own the land on which their
houses were located. More generally, the non-ownership problem
also applied to non-Natives in the villages and to business and
subsistence sites. The influential report to Congress of the
Federal Field Committee for Development Planning in Alaska,
Alaska Natives and the Land (U.S. Govt. Anchorage, 1968)
(hereafter Alaska Natives and the Land) made this clear:
Another characteristic of village
Alaska is that most of its people live not on
land they own, but on the public domain. Two
thirds of Alaska's 7,500 village families own
no land at all.
Village Alaskans own in fee less
than 500 acres of 375 million acres of their
Native land. These parcels of land are held
by about 1,400 families who have received or
petitioned for unrestricted title to their
Under restricted title, somewhat
more than 15,000 acres are held by 961
households. Most of this acreage is in 175
allotments -- obtained by Natives in the 62
years since the Indian Allotment Act was
enacted; the remainder is in 786 townsite
lots in 32 villages.
Very little acreage -- in townsite
lots or allotments -- is in northern and
western Alaska, where most Alaska Natives
. . . .
Without title and without tenure,
the vast majority of the rural people live
on, range over, and use the public domain as
they have for generations.9
Alaska Natives and the Land, supra p.21 at 45-46 (footnotes
In another section the report again observed that the
Alaska Native Allotment Act of 1906 and the Townsite Act of 1926
had largely failed to distribute needed land to individual
Specific land legislation passed
for Alaska Natives -- the Alaska Native
Allotment Act of 1906 and the Townsite Act of
1926 -- has failed to meet the land needs of
the Native people. In the 62 years since
passage of the Native Allotment Act only
slightly more than 15,000 acres of land have
been deeded, by restricted deed, to 175
Native allottees. And in the 42 years since
the passage of the Townsite Act, only 28
Native villages have been surveyed with deeds
issued to their inhabitants; and title in fee
simple to less than 500 acres has been
Id. at 537. The report noted that lack of ownership contributed
to the problem of inadequate housing:
While the low cash income of
villagers is an important reason behind
substandard dwellings in village Alaska, it
is not the sole explanation. Federal
programs of insured loans are not available,
even to those with ability to repay, if they
do not possess title to the land upon which a
house is to be situated, and most Alaska
villagers are landless.
Id. at 73. Discussing the economic consequences of a land claims
settlement, the report stated:
The absence of title to land
occupied by Natives in Alaska villages is
clearly an obstacle to financing homes,
businesses, and community facilities. The
grant of title to these lands would just as
clearly have a beneficial effect on the
village economy. . . .
Grants of land title for homesites,
businesses, community facilities, and special-
purpose locations such as fish camps and
burial grounds should not be expected to have
any negative effects on general economic
development. Some question might be raised
about sites in existing withdrawals such as
national forests. The total area of land
involved is so small, however, that we can
find no instance in which such transfers
would subvert the purposes of the original
Id. at 529.
Addressing the problem of lack of individual, as
distinct from collective, village land ownership is then the
primary purpose of section 14(c)(1) and (2) of the Act. Arnold,
supra note 1, at 250-51, describes the process of individual
conveyancing under the Act as follows:
Although most of the land that is
conveyed to Natives under the settlement act
goes to corporations they own, perhaps 10,000
Natives are entitled by the act to become
property owners as individuals. There are
three ways in which this can take place: (1)
by reconveyance by a village; (2) by indivi
dual application from those living at
isolated locations; and (3) by obtaining an
allotment filed for prior to passage of the
. . . .
Most Natives who become individual
landowners will receive their land by
reconveyance from their village corporations.
Once village corporations receive
title (patent or interim conveyance) to lands
they have selected, they are, among other
things, to reconvey parcels of land to
individual occupants of such parcels.
Specifically, they are required to give
surface title at no cost to Natives and non-
Natives who are using such parcels as:
ú a primary place of residence;
ú a primary place of business;
ú a subsistence campsite, or
ú a headquarters for reindeer husbandry.
Although there were about 49,000
Natives who considered their place of
residence to be one of the 203 village
corporations, it is not clear that all of
them will receive tracts of village
land. . . .
Persons who receive land from their
village corporations may immediately sell or
lease it. There is no restriction (as there
is with stock ownership) against the sale of
land. Individually held lands are subject to
property taxes if they are developed or
leased. . . .
Individuals receiving title do not
obtain the subsurface estate. Except for the
wildlife refuges and Naval Petroleum Reserve
No. 4, the subsurface belongs to the regional
corporation. . . .
Transfer of title to individuals is
but one task of reconveyance imposed on a
village corporation. It is also required to
convey surface title to nonprofit
organizations (such as churches) for tracts
they occupy, either without cost to the
organization or for what the land was worth
when it was first occupied. It must also
convey to the municipal, state, or federal
governments surface title to lands where
airports or air navigation aids are located.
And it must convey to its municipal
government no less than 1,280 acres of the
remaining improved lands in the village; if
there is no city government, this acreage is
to be conveyed to the State where it would be
held in trust.
Another text, David S. Case, Alaska Natives and
American Laws (1984), recognizes that the primary purpose of
section 14(c) is to convey land in settled areas to individual
occupants. It states that in this respect 14(c) was intended to
serve the same purpose as the townsite laws which were previously
applicable to Alaska.11
Section 14(c) of ANCSA appears to
be an alternative to the subsequently
repealed Alaska townsite laws. As now
amended, it requires each village corporation
to deed to local residents, businesses and
non-profit organizations the surface estate
of those village lands they occupied as of
December 18, 1971. As originally enacted, a
minimum of 1,280 acres of the remaining
surface estate also had to be conveyed to the
incorporated municipality or to the state in
trust for any future municipality, but 1980
amendments to ANCSA now permit village
corporations to negotiate lower municipal
grants with the state or affected
. . . .
Congress repealed [the 1926 Alaska
Native Townsite Act] because ANCSA had made
it "obsolete". . . .
Id. at 167-168 (footnote omitted).
F. "Occupant" as defined by the dictionary and
townsite act case law.
Webster's Third New International Dictionary offers the
following definitions of the term "occupant":
1 a : one who takes the first possession
of something that has no owner and thereby
acquires title by occupancy b : one who
takes possession under title, lease or
tenancy at will 2 a : one who occupies a
particular place or premises : TENANT,
RESIDENT . . . b: one who holds a
particular post 3 : one who has the actual
use or possession of something
Only definitions 1a, 1b and 2a could be applicable to the present
problem as the others do not refer to the occupancy of real
estate. Of these, application of 1a is to be doubted since there
is no suggestion that Congress intended the benefit of 14(c)(1)
to be limited to the first occupant of a dwelling in a village as
distinct from subsequent occupants. The distinction between 1b
and 2a seems to be that under 1b there is a connotation that an
occupant must have a legal status whereas under 2a one may be an
occupant merely by virtue of residence.
Under either definition 1b or 2a Capener qualifies as
an occupant. Thus if the dictionary alone were to be our guide
both of the legal questions involving the meaning of "occupant"
posed by this case -- can a holder of a revocable permit be an
occupant and can one who occupies property which is subject to a
revocable permit issued to another be an occupant -- would
require unqualified affirmative answers. However, the townsite
act cases offer further guidance in defining the term occupant.
As noted, section 14(c) is meant to address the same
general purpose as the townsite laws previously governing Alaska.
See Case, supra, p. 25 at 167-68. These, in turn, had their
counterparts in laws governing the settlement of the western
states. See Oswald v. Columbia Lumber Co., 425 P.2d 240, 241 n.1
(Alaska 1967); see also Aleknagik Natives, Ltd. v. United States,
635 F. Supp. 1477, 1479 (D. Alaska 1985) (recognizing extension
of federal townsite laws to Alaska pursuant to Townsite Act of
March 3, 1891, 26 Stat. 1099, 43 U.S.C. 732 (repealed 1976)).
Generally, under these laws the "occupant"of premises on the
legally relevant date was entitled to a conveyance, usually on
payment of survey costs. See e.g., Townsite Act of 1867, 43
U.S.C. 718 (repealed 1976); Oswald, 425 P.2d at 242; Johnston
v. Smith, 6 P.2d 891, 893 (Ariz. 1931); Singer Mfg. Co. v.
Tillman, 21 P. 818 (Ariz. 1889); Clark v. Titus, 11 P. 312 (Ariz.
1886); Amador County v. Gilbert, 65 P. 130 (Ca. 1901); City of
Pueblo v. Budd, 36 P. 599 (Colo. 1894); City of Helena v.
Albertose, 20 P. 817 (Mont. 1889); Hall v. North Ogden City, 175
P.2d 703 (Utah 1946); Holland v. Buchanan, 56 P. 561 (Utah 1899);
Lockwitz v. Larson, 52 P. 279 (Utah 1898); Pratt v. Young, 1 Utah
347 (Utah 1876) aff'd Cannon v. Pratt, 99 U.S. 619 (1878). In
view of the similarity of purpose between section 14(c) and the
townsite laws, the meaning of "occupant"as used in these laws
may be a valuable guide.12
The Supreme Court of Arizona in Singer Manufacturing
Co. v. Tillman, 21 P. 818 (Ariz. 1889), laid out the definition
of "occupant"and the rules defining "occupancy"for the purpose
of the townsite act governing Arizona:
An "occupant,"within the meaning of the
town-site law of congress, is one who is a
settler or resident of the town, and in the
bona fide, actual possession of the lot at
the time the entry is made. One who has
never been in the actual possession of a lot
cannot be said to be an "occupant" thereof.
The occupancy referred to must be actual, and
cannot be begun by agency, no one being
allowed to take up lots by his agent. The
occupancy may be for residence, for business,
or for use, but the residence, business, or
use must be by the claimant. A party having
a bona fide occupancy can afterward lease the
ground and still retain his right thereto,
and he may sell his claim, except that no
contract, either for the sale or lease, which
conflicts with the requirements that the
title shall be made to an inhabitant who is
an occupant and has an interest, will be
recognized in deciding to whom the government
title shall go; and a party purchasing an
interest in such property can have government
title to the extent of such interest,
provided he becomes an occupant, thus showing
no one is entitled to or can receive
government titles to a town lot unless he is
in the actual, bona fide possession and
occupancy of the lot.
21 P. 818, 818 (Ariz. 1889) (citations omitted.) See also Cain
Heirs v. Young, 1 Utah 361, 364 (1876), rev'd on other grounds,
Stringfellow v. Cain, 99 U.S. 610 (1878); Pratt v. Young, 1 Utah
347, 352-54 (1876) aff'd Cannon v. Pratt, 99 U.S. 619 (1878).
The townsite act cases interpreting the term "occupant"
assume that an occupant who is merely a tenant does not qualify
for a conveyance. The occupant must have a colorable claim to
equitable ownership of the improvements. Singer Mfg. Co. v.
Tillman, 21 P. at 818. However, the actual occupier at the
legally relevant date is presumed to be entitled to a conveyance.
Pratt v. Young, 1 Utah at 353, 356.
Further, the rules concerning whether an occupier had
an interest sufficient to entitle the occupier to a deed as an
occupant were not strict or technical.14 Thus, in Singer
Manufacturing Co. v. Tillman, Tillman initially was merely a
tenant of the landlord, Mund. 21 P. at 818. Mund then gave a
mortgage to third parties. Tillman did not pay rent and asked
Mund to make repairs to the premises. Id. Mund refused, saying
he wanted nothing further to do with the premises. Id. At this
point, in the court's view, Tillman became an occupant in his own
right. Shortly thereafter,15 entry for the purposes of the
townsite act was made by the probate judge who deeded the
property to Tillman as the occupant. Subsequently, the
mortgagees foreclosed. The court found in favor of Tillman since
the mortgagor's (Mund's) right was extinguished before he
executed the mortgage by his failure to remain in physical
In Pratt v. Young, Orson and Sarah Pratt were the
initial occupants of a house in Salt Lake City. 1 Utah at 355,
359. In 1861 they moved and sold the house to Young and certain
members of Young's family occupied it. Id. at 359. In 1868
Sarah Pratt resumed possession of the house. Id. at 355-56, 359-
60. The entry date establishing the relevant date of occupancy
occurred subsequent to Sarah Pratt's resumption of possession.
Id. at 355. In a contest between Sarah Pratt and Young as to who
was entitled to a deed to the house under the townsite act, Sarah
Pratt prevailed. Id. at 360. She had been given possession of
the house by Young "without any contract for rent or any
understanding or agreement expressed or implied, that she should
become or be the tenant of [Young]. . . ." Id. at 359-60.
Several other cases recognize that an occupant need not comply
with technical legal requirements in order to establish his or
her interest in the land. See, e.g., Hall v. North Ogden City,
175 P.2d 703, 708-711 (Utah 1946) (discussing several cases where
occupancy was sufficient to give party title to land). See also
Ashby v. Hall, 119 U.S. 526 (1886) (occupant's right to land
established upon entry of townsite and nothing more was
G. The meaning of "occupant"under section 14(c).
Having reviewed the language and purpose of section
14(c) and the relevant case law, we are in a position to
interpret the meaning of the term "occupant." The dictionary
definition, "one who occupies a particular place or premise"
captures the intended meaning accurately for most cases.16
However, for situations involving tenancies or similar
relationships this definition is inadequate. It would require a
reconveyance to an occupier who is merely a tenant of the owner
of the improvements. Such a person's property interest is not
strong. Further, in some cases this would be unjust to the owner
of the improvements, as where the owner holds under a long-term
government lease and would be protected for the term of the lease
under section 14(g), while the tenant, whose sole residence is on
the premises, would have a claim to title under section 14(c)(1).
Moreover, case law construing the term "occupant" in the
analogous townsite act context seems to be clear that one who is
merely a tenant is not an occupant.
It is necessary therefore in tenancy cases to add to
the dictionary definition a requirement that the occupier have an
equitable interest in the improvements. The definition in such
cases thus would be "one who occupies a particular place or
premise and has an equitable interest in the improvements
thereon."17 As in the townsite act cases, there should be a
rebuttable presumption that the occupier on the critical date is
the occupant and thus entitled to a conveyance assuming that the
occupancy purpose requirements are met. In determining whether
an occupier has the requisite equitable interest, technical or
strict property concepts need not be adhered to. This approach
is employed in the cases interpreting the townsite acts. See,
e.g., Singer Mfg. Co., 21 P. 818; Pratt, 1 Utah at 353 (quoted
supra in note 14). It seems especially appropriate to section
14(c), since 14(c)'s purpose is to distribute individual titles
to residents of Alaska villages where concepts of American
property law have been little used.
We are mindful of the rule of construction that
ambiguous laws affecting Natives should be construed in favor of
Natives. Hakala, 753 P.2d at 1147. This rule should not be
applied in favor of TDX in this case for a number of reasons.
First, TDX offers no interpretation of section 14(c) which is
reasonably consistent with the language of that section, or its
purpose. Second, the central purpose of 14(c) was to effect the
transfer of title to thousands of Alaska Natives individually. A
narrow construction of 14(c) would serve to thwart rather than
further that purpose.18 Third, as section 14(c) is structured,
questions of entitlement as to improved land in and around Native
villages involve as competing claimants not individual occupants
and village corporations, but individual occupants and municipal
corporations (or the State of Alaska in trust for future
municipal corporations). Under section 14(c)(3), improved land
in and around Native villages which is not transferred to
individual occupants under (c)(1) or (2) is to be conveyed to the
municipal corporation for the village or, if there is none, to
the state in trust for a future municipal corporation.
H. A permittee may be an "occupant."
We return to the first question raised by the parties'
arguments: whether a permittee holding under a revocable permit
may be entitled to a section 14(c) conveyance or whether the
permittee's rights are limited by the terms of the permit. Our
answer is that the permittee may be entitled to a 14(c)
The permittee must be an occupant within the meaning of
section 14(c) -- an occupier with an equitable interest in the
improvements -- and the purpose of the permittee's occupancy must
be one of the purposes recognized by section 14(c)(1) or (2).
The Act does not impose as an additional requirement a condition
that an occupant not hold under a government lease or permit.
Indeed, since the Act mandates conveyances to non-Native
residential occupants whose rights are based solely on the fact
that they occupy dwellings built on the public domain without a
permit, it would be paradoxical to deny a conveyance to
residential occupants who have made permitted entries.19 We
conclude therefore that a permittee may be an occupant. The fact
that the permittee may also have rights under the permit which
are preserved under section 14(g) does not preclude the permittee
from receiving a conveyance under section 14(c). Our conclusion
on this point comports with the Ninth Circuit's decision in
I. An occupier of property subject to a revocable
permit issued to another may be an "occupant."
The second question raised by the parties' arguments is
whether a person who occupies property which is subject to a
revocable permit issued to another may be entitled to a section
14(c) conveyance. Our answer is that such an occupier may be
entitled to a conveyance, if the occupier has an equitable
ownership interest in the improvements, and meets the occupancy
purpose requirements of the Act. The Act does not impose
additional requirements. We have concluded above that the
existence of a permit is irrelevant to eligibility for a 14(c)
conveyance and that the terms of an existing permit do not bar a
conveyance. It follows that the fact that a permit may have been
issued in the name of a non-occupant should not preclude a
conveyance to an occupant who meets section 14(c) requirements.
J. The right to a reconveyance can be transferred
subsequent to the legal occupancy date.
The third legal question raised by the parties'
arguments is whether an occupant entitled to a 14(c) reconveyance
from a village corporation may transfer the occupant's right to a
reconveyance to a third party. The answer to this question
clearly is affirmative.
An occupant's right to a 14(c) reconveyance is an
individual property right which vests on what the Ninth Circuit
has called the "magic" date. Buettner, 860 F.2d at 343.
Property interests are alienable in the absence of specific
prohibitions on alienability. See Roger A. Cunningham, et al.,
The Law of Property 2.1, at 29 (2d. ed. 1993). No such
prohibitions exist in ANCSA. Moreover, under the townsite acts
an occupant could transfer his interest subsequent to the legal
occupancy date and prior to receipt of the deed. McKennon v.
Winn, 33 P. 582, 585 (Okla. 1893). TDX's argument that the
permit terms prohibit the Home Missions Department from making a
conveyance to Capener after the legal occupancy date lacks merit,
for just as the inconsistent terms of the permit do not control
an occupant's right to a conveyance they do not deprive the
occupant of the power to transfer that right.
K. Genuine issues of material fact exist which
preclude summary judgment.
An affirmative burden falls on one who seeks summary
judgment to establish the absence of genuine issues of material
fact. Wickwire v. McFadden, 576 P.2d 986, 987 (Alaska 1978);
Clabaugh v. Bottcher, 545 P.2d 172, 175 n.5 (Alaska 1976). Our
resolution of the legal questions raised by the parties'
arguments makes it apparent that Capener's right to a conveyance
depends on the resolution of certain fact questions including, at
least, the following:
1. Did Capener have an equitable interest
in the improvements on Lot 3 on January 19, 1979?
If so, is Lot 2 part of the curtilage of the house
and business on Lot 3?
2. Did the local church organization have
an equitable interest in the improvements on Lot 1
or Lot 3 on December 18, 1971?
3. Did the Home Missions Department
transfer its interest in the property to Capener
prior to executing the general disclaimer.20
As TDX has not negated the existence of genuine issues concerning
these questions, summary judgment was improper. The judgment of
the superior court must therefore be reversed and this case
remanded for further proceedings.21
REVERSED and REMANDED.
COMPTON, Justice, dissenting.
I am unpersuaded by this court's analysis of Section 14
of the Alaska Native Claims Settlement Act (ANCSA). Further, I
conclude that the superior court reached the correct result.
Therefore I dissent.
The Assemblies of God's entitlement to occupy and use
the land was based on a Special Use Permit issued to it by the
United States Department of the Interior, Fish and Wildlife
Service, Bureau of Commercial Fisheries. The permit gave the
Assemblies of God "the right to occupy and use [the land] for the
purpose of constructing, establishing, creating, and maintaining
a church and parsonage, . . . and for no other purpose
whatsoever." The permit had a ten year primary term, with
automatic annual renewals unless terminated by either party by
thirty days written notice. Upon expiration or termination of
the permit, the Assemblies of God had the right, upon fulfillment
of certain terms and conditions, to remove all structures, except
those furnished by the government. If it failed to do so, any
structures became property of the United States. The permit was
not transferable, and no interest could accrue to a third person
without permission of the Director of the Bureau of Commercial
Fisheries. The only rights and liabilities created by the permit
were between the United States Government and the Assemblies of
Lillian Capener and the late Reverend A. E. Capener
were never permittees under the Special Use Permit. They did not
"enter the land under the auspices of a special use permit . .
. ." They entered the land under the auspices of the Assemblies
of God. The Capeners' presence on the land was as missionaries
for the Assemblies of God.22 By virtue of their mission, they had
permission to use the parsonage.23 On the "magic" dates the
Assemblies of God had not terminated the Special Use Permit, nor
had it divested the Capeners of their mission.
The court acknowledges that the term "occupant" is
ambiguous. The fact that the court goes to such great lengths to
craft its definition of "occupant"demonstrates this clearly.
However, in my view the court not only crafts an incorrect
definition, but also misapplies it even if correct.
I. The Court's Definition of "Occupant"Is Unpersuasive.
The court concludes that an "occupant"is "one who
occupies a particular place or premises and has an equitable
interest in the improvements thereon."24 The first half of the
definition is simply a self evident dictionary definition. The
second half presumably distinguishes one kind of tenant from
another kind of tenant.25 However, the appended language does not
appear to correct the problem the distinction allegedly
addresses. The court remarks that the dictionary definition
would require a reconveyance to an
occupier who is merely a tenant of the owner
of the improvements. . . . [I]n some cases
this would be unjust to the owner of the
improvements, as where the owner holds under
a long-term lease and would be protected for
the term of the lease under section 14(g),
while the tenant, whose sole residence is on
the premises, would have a claim to title
under 14(c)(1). . . . [I]n the analogous
townsite context [it] seems to be clear that
one who is merely a tenant is not an
occupant. . . .
It is necessary therefore in
tenancy cases to add to the dictionary
definition a requirement that the occupier
have an equitable interest in the
Opinion at 30. The language appended by the court merely narrows
the category of tenants who will divest their landlords; it does
not eliminate the problem. Under the definition crafted by the
court, the tenant (sub-lessee) of the holder of a long-term
government lease (sub-lessor), who occupies the land as a primary
residence or business and who has an equitable interest in
improvements put on the premises with the sub-lessor's consent,
would become the owner of the property the sub-lessor leased to
The definition employed by the court creates an
impossible situation. The patent, by which the Village
Corporation obtains title from the United States, is subject to
the lessee/sub-lessor's "complete enjoyment of all rights,
privileges, and benefits thereby granted him [by the lease]."
Section 14(g). The described sub-lessee is entitled to a
conveyance of title from the Village Corporation "without
consideration." Section 14(c)(1). Thus the sub-lessee's title
is subject to the sub-lessor's existing rights, which may include
entitlement to rent from the sub-lessee, who is now the owner.
Presumably if the sub-lessee defaults in the payment of rent, the
lessee/sub-lessor may evict the person who is now the owner of
I am unpersuaded that this attempted differentiation
between various kinds of tenants, one of whom obtains title and
the other of whom occupies in accordance with the terms of a
lease which cannot be transformed into title, justifies the
court's definition of "occupant." The definition will exacerbate
the problem. A tenant by any other name will still be a tenant.
The problem will be the same: the tenant's Section 14(c)(1)
rights will conflict with the United States' lessee's Section
The court's definition of occupancy is flawed even when
viewed only in the context of Section 14(c)(1). As used in
Section 14(c)(1), "occupant"applies to four classes of activity
on land: (1) primary place of residence, (2) primary place of
business, (3) subsistence campsite, or (4) headquarters for
reindeer husbandry. Acknowledging the inadequacy of its
craftsmanship, the court restricts its definition of occupant to
the first two classes of occupants. As it states, in the other
categories "improvements may be either non-existent or relatively
unimportant." Opinion at 30 n.17. While that may be true, on
what basis can such a definitional distinction be made between
category 1 and 2 occupants on the one hand, and category 3 and 4
occupants on the other? I suggest there is none. Furthermore,
given the nomadic culture of many of Alaska's Natives, an
equitable interest in improvements is a concept of questionable
II. The Court Improperly Applies Its Own Definition
The court's definition of occupant requires that the
occupier of the premise have an "equitable interest in
improvements." Even under this definition, Mrs. Capener would
not be entitled to a conveyance of title.
The court correctly notes that a tenant is not an
occupant "in the analogous townsite act context." Opinion at 30.
The relationship between the Assemblies of God and Mrs. Capener
is consistent with, and most analogous to, the relationship
between landlord and tenant. The Assemblies of God and Mrs.
Capener could not both occupy the land in the statutory sense.
And while a tenant might have a claim to ownership of
improvements under specific circumstances, the court cites no
authority for the proposition that the mere existence of such a
claim transforms the tenant into an occupant entitled to a
conveyance of title. Furthermore, given the terms of the permit,
Mrs. Capener cannot have had an equitable interest in the
improvements on the land vis-a-vis the United States. The permit
states that any improvements will be forfeited to the United
States if not removed by the permittee, the Assemblies of God.
Whether a permit holder ever can receive title under
Section 14(c) is a question that is not necessary to decide, as
Mrs. Capener was not a permit holder. She was on land permitted
to another, at the sufferance of another, with no expectation of
ever gaining title. The only "equitable interest in
improvements"that may have existed was held by the Assemblies of
Mrs. Capener's sponsor, the Assemblies of God, was
denied title when it tried to obtain it outside of the context of
ANCSA.26 The Assemblies of God has never pursued any ANCSA claim.
It has never asserted a Section 14(g) claim to protect its valid
existing rights as permittee. It has never pursued a Section
14(c)(2) claim to "[a] tract occupied . . . by a nonprofit
organization,"although there appears to be no dispute that the
Assemblies of God is a nonprofit organization, and that it
occupied the land. Yet whatever claim the Assemblies of God may
have had, its claim was either as a permittee or as a nonprofit
organization which occupied the land.
III. A More Appropriate Definition of "Occupant."
In determining the meaning of "occupant," we are
constrained to follow the rule that ambiguities in ANCSA are to
be resolved in favor of Natives. Hakala v. Atxam Corp., 753 P.2d
1144, 1147 (Alaska 1988) (citing United States v. Atlantic
Richfield Co., 612 F.2d 1132, 1138-39 (9th Cir. 1980); Alaska
Public Easement Defense Fund v. Andrus, 435 F.Supp. 664, 670
(D.Alaska 1977)). Although the court is "mindful"of the rule,
it explicitly declines to follow it.27 I do not know what the
court means by this. If there is no ambiguity, the rule does not
apply. If there is an ambiguity, the court must follow the rule.
The rule requires that the ambiguity must be resolved in favor of
Natives. This should not mean that the Natives must provide the
best resolution of the ambiguity, else the rule is meaningless.
I suggest that the Natives must advance an interpretation that is
reasonable. For the reasons set forth in supra note 3, I
conclude they have done at least that.
Persons entitled to assert occupancy rights under the
Townsite28 and Native Townsite Acts29 were not required to have a
patent, lease, contract, permit, right-of-way, or easement. In
other words, they had no Section 14(g) "valid existing rights."
The protection for such users has to come from elsewhere. It
comes from Section 14(c). According to David S. Case, The
Special Relationship of Alaska Natives To The Federal Government
The Native Townsite Act was administered in the same
way and according to the same regulations as an earlier
1891 Act which granted citizens (usually non-Natives)
the right to establish townsites in Alaska. . . . These
procedures made no distinction between Native and non-
Native in townsite administration. Prior to 1959, it
was possible for both Natives and non-Natives to be
deeded lots within the subdivided portion and to occupy
land in the unsubdivided portion of the same townsite.
. . . The Townsite Act was repealed in 1976, and
Section 14(c) of ANCSA provides an alternative for
municipalities to acquire municipal lands. However,
the townsites established under the 1926 Act were not
eliminated either by ANCSA or the 1976 repeal of the
Native Townsite Act. . . . Non-Natives can continue to
establish new occupancy rights under the 1926 Act on
the same types of land for which ANCSA supposedly
prohibited occupancy rights as of December 18, 1971.
Id. at 60 (citations omitted).
ANCSA is a coherent act. Section 22(b) protects
existing rights that might eventually lead to title, such as
homesteads and mining claims. Section 14(g) protects the
existing rights of those temporarily on the land.30 Section 14(c)
protects the rights of those without "existing rights," such as
those who but for ANCSA, and its repeal of the Native Allotment
Act,31 may have had reasonable expectations that entry could be
made under the Townsite and Native Townsite Acts, following which
they would obtain title.32
In my view a more suitable definition of occupant would
be a user whose continued use 1) is not protected by another
section of ANCSA, and 2) is reasonably expected to continue
without interference by the United States. This definition would
bring within its ambit persons living in a community which could
have gained de jure status under the Townsite and Native Townsite
Acts, and whose entitlement under those now repealed acts is not
The concept of title to land as we understand it is one
grounded in common or civil law. It is not a concept of Native
culture. However, if the Native concept of continued use is kept
in mind, the definition is appropriate to the purpose of ANCSA.
Congress' use of the term "occupied"becomes more understandable
when considered in the context of its traditional use in Native
legislation. The term has typically been applied in the context
of Native aboriginal title rights. See David S. Case, Alaska
Natives and American Laws 56-75 (1984) (providing a legal history
of the aboriginal title rights of Alaska Natives; "occupy"
terminology occurs frequently).33 A basic tenet of statutory
construction is a presumption that words that have acquired
special meaning in the law carry that meaning in new legislation.
See O'Callaghan v. State, 826 P.2d 1132, 1134 (Alaska 1992).
ANCSA extinguished aboriginal title in Alaska. However, the
purpose of Section 14(c) is to protect existing users or
occupants. The passage of ANCSA did not change the use occupants
made of the land, often the very use that aboriginal title was
crafted to encompass.
Finally, the practical effect of a conveyance from the
Village Corporation is important to keep in mind. Unlike the
regional corporations, a village's pool of land shrinks every
time land is conveyed.34 This land was not a gift from the
government, but rather was payment given in exchange for an
arguably legally enforceable right. Given this historic fact,
and ANCSA's purpose, the court should not interpret ANCSA "to
defeat the manifest intent of Congress." United States v.
Atlantic Richfield Co., 612 F.2d 1132, 1139 (9th Cir. 1980).
IN THE SUPREME COURT OF THE STATE OF ALASKA
LILLIAN CAPENER, )
) Supreme Court No. S-4598
) O R D E R
TANADGUSIX CORPORATION, )
Superior Court No. 3AN-88-9062 Civil
Before: Moore, Chief Justice, Rabinowitz,
Matthews and Compton, Justices. [Eastaugh,
Justice, not participating.]
On consideration of the appellee's petition for
rehearing, filed on October 14, 1994,
IT IS ORDERED:
1. The petition for rehearing is GRANTED in part.
Changes are made on pages 15 and 34.
2. Opinion No. 4134, published on October 7, 1994, is
3. Opinion No. 4142, is issued on this date in its
Entered by direction of the Court at Anchorage, Alaska
on November 4, 1994.
CLERK OF THE SUPREME COURT
1 Sections 14(c)(1) and (2) are set forth at note 5
Another provision of the Act under which the right to a
conveyance is triggered merely by occupancy rather than a legally
regulated entry is what one text calls the "hermit clause,"
section 14(h)(5), under which the Secretary of the Interior "may
convey to a Native . . . the surface estate in not to exceed 160
acres of land occupied by the Native as a primary place of
residence on August 31, 1971." See Robert D. Arnold, Alaska
Native Land Claims, 253 (Alaska Native Foundation, 1978).
According to the text this provision applies to residences away
from villages or cities. Id. That limitation may be practical
rather than legal, however, as it is not expressed in the Act.
2 The occupancy date under section 14(c)(1) for Pribilof
Island land is the date of conveyance to the village corporation.
That date for the land in this case is January 19, 1979.
3 December 18, 1971, was the date ANCSA was passed.
4 As a corporation representing a village of more than
500 people TDX was entitled to a patent to the surface estate of
138,240 acres. 43 U.S.C. 1613(a) (1986); Arnold, supra note 1,
at 243. TDX's selection encompassed virtually all of St. Paul
Island. Arnold, supra.
5 These sections provide:
(c) Patent requirements; order of
conveyance; vesting date; advisory and
appellate functions of Regional Corporations
on sales, leases or other transactions prior
to final commitment.
Each patent issued pursuant to sub
sections (a) and (b) of this section shall be
subject to the requirements of this subsec
tion. Upon receipt of a patent or patents:
(1) the Village
Corporation shall first convey to
any Native or non-Native occupant,
without consideration, title to the
surface estate in the tract
occupied as of December 18, 1971
(except that occupancy of tracts
located in the Pribilof Islands
shall be determined as of the date
of initial conveyance of such
tracts to the appropriate Village
Corporation) as a primary place of
residence, or as a primary place of
business, or as a subsistence
campsite, or as headquarters for
(2) the Village
Corporation shall then convey to
the occupant, either without
consideration or upon payment of an
amount not in excess of fair market
value, determined as of the date of
initial occupancy and without
regard to any improvements thereon,
title to the surface estate in any
tract occupied as of December 18,
1971, by a nonprofit organization;
(3) the Village
Corporation shall then convey to
any Municipal Corporation in the
Native village or to the State in
trust for any Municipal Corporation
established in the Native village
in the future, title to the
remaining surface estate of the
improved land on which the Native
village is located and as much
additional land as is necessary for
community expansion, and appro
priate rights-of-way for public
use, and other foreseeable
community needs: Provided, That
the amount of lands to be
transferred to the Municipal
Corporation or in trust shall be no
less than 1,280 acres unless the
Village Corporation and the
Municipal Corporation or the State
in trust can agree in writing on an
amount which is less than one
thousand two hundred and eighty
acres: Provided further, That any
net revenues derived from the sale
of surface resources harvested or
extracted from lands reconveyed
pursuant to this subsection shall
be paid to the Village Corporation
by the Municipal Corporation or the
State in trust: Provided, however,
That the word "sale", as used in
the preceding sentence, shall not
include the utilization of surface
resources for governmental purposes
by the Municipal Corporation or the
State in trust, nor shall it
include the issuance of free use
permits or other authorization for
(Emphasized language added in 1980, Pub. L. 96-487 1404(a) and
(b) and 1405.)
6 See note 2 supra.
7 "Mr. Kitchen in 1971 had no right whatsoever to be
there. No law or permit authorized him to build a structure
there. He did not have a special guiding permit for the area
until 1973. . . . The land may have been open to hunting and
backpacking, but Mr. Kitchen was trespassing when he placed his
. . . shack there." See Ae. Br. 14 Hakala v. Atxam Corp.,
Supreme Court No. S-1866.
8 As noted supra, p. 2, section 14(g) makes conveyances
to Native corporations subject to the terms of outstanding
leases, contracts and permits. "Upon issuance of the patent, the
[Native corporation] shall succeed and become entitled to any and
all interests of the . . . United States as lessor, contractor,
permitter . . . in any such leases, contracts, permits . . . ."
ANCSA 14(g), 43 U.S.C. 1613(g).
9 The chairman of the Federal Field Committee, Joe
Fitzgerald, amplified this theme in his testimony before
Congress. Fitzgerald stated that thousands of Alaskans were
"squatters"on federal land without claim to title. Statement of
Joe Fitzgerald, Hearing on S. 1830 91st Cong., 1st Sess. 119, 121
10 The report specifically mentioned that the Village of
St. Paul was surveyed but no deeds to individuals had been
issued. Alaska Natives and the Land, at 492.
11 These statutes were the 1891 Townsite Act, formerly
codified at 43 U.S.C. 732 (1970), and the Alaska Native
Townsite Act of 1926, formerly codified at 43 U.S.C. 733 et.
seq. (1970). They, like townsite laws applicable elsewhere in
the United States, operated to convey the public domain to
occupants for either no cost or a pro-rated portion of survey
fees. Case, supra, 158.
12 The analogy between section 14(c) and the townsite acts
carries through subsection (3) of 14(c) which requires that
improved land in a village which is not conveyed under
subsections (1) or (2) shall be conveyed to the village municipal
corporation or to the state in trust for any municipal
corporation established in the village in the future. Under the
various townsite acts, surveyed lots which had no occupants were
either auctioned and the proceeds were paid to the municipal
corporation or held in trust for the benefit of the municipal
corporation. See e.g., Pratt v. Young, 1 Utah 347, 358 (Utah
13 "Entry"in terms of the townsite laws refers not to the
entry by the occupant or the occupant's predecessor but to the
entry by the official having the power to issue deeds. It is a
term of art which fixes the relevant occupancy date, but has
nothing to do with physical entry by the public official.
14 Pratt v. Young, 1 Utah at 352. Speaking of the
interests of the occupant prior to "entry"by the authorized
official, the trial court wrote:
This limited interest in the land is the
creature of the acts of Congress; it is novel
and anomalous, and only subject to the
ordinary rules of law governing real estate
(if at all) in a narrow and subordinate
sense. The fee simple which is usually the
largest possible estate which a man can have
in and which draws to it all of the incidents
of such an estate such as possession or the
right of possession, and is the predicate of
the relations of the landlord and tenant,
does not enter into or constitute any part of
the statutory interest in land which is
created by the acts of Congress. On the
contrary the fee is recognized as being in
another, and this estate or interest in the
land exists in its narrow and meagre
entirety, without and independent of it.
To apply to it the rules and
analogies which ordinarily govern and guide
in determining interests and relations in
regard to real estate, would be in
contravention of the very nature of the right
itself. The title to real estate is now in
abeyance. This statutory interest vanishes
upon the mere abandonment of the possession
of the land. The title to real estate can
only be transferred from one person to
another by writing in proper form and duly
attested. This interest can pass from one to
another by the surrender of possession of the
15 Tillman's occupancy began in February of 1882 and he
received his deed as an occupant in April of 1883.
16 We thus reject the definition of "occupant" which
implies that an occupier must have a particular legal status.
See supra p. 24.
17 With respect to subsistence campsites and headquarters
for reindeer husbandry, improvements may be either non-existent
or relatively unimportant. We do not, therefore, intimate any
view as to the application of this definition to occupancy for
18 In United States v. Atlantic Richfield Co., 612 F.2d
1132, 1139 (9th Cir. 1980), the court observed that the rule of
construction favoring Natives is only a guideline, not a
principle of substantive law, and "should not be used to defeat
the manifest intent of Congress."
19 In Buettner the court stated: "It would be an odd
statute indeed which conferred rights to obtain a deed on persons
occupying property without permission, but which denied these
rights to lawful occupants." Buettner v. Kavilco, Inc., 860 F.2d
20 TDX's argument that the statute of frauds, AS
09.25.010, precludes an oral conveyance of a real estate interest
is not unconditionally correct. There are exceptions to the oral
conveyance bar, one of which is where the party sought to be
charged with the conveyance subsequently acknowledges it. AS
09.25.020(4). An excerpt of the deposition of one of the Home
Missions Department officials, Bransford, indicates that he
agrees that the conversation on which Capener bases her
conveyance argument took place. However, both the content of the
conversation and the intent of the parties require more
21 Capener makes three other arguments which we reject
summarily. The first is that the seven-year color of title
adverse possession statute bars TDX's claim. This lacks merit as
Capener did not have color of title as that term is used in the
adverse possession statute:
Color of title exists only by
virtue of a written instrument which purports
to pass title to the claimant, but which is
ineffective because of a defect in the means
of conveyance or because the grantor did not
actually own the land he sought to convey.
Hubbard v. Curtiss, 684 P.2d 842, 847 (Alaska 1984). Second,
Capener claims that laches bars TDX's claim, as in the period
between patent to TDX and suit against Capener her husband died,
thus requiring this case to be resolved without his testimony.
Capener fails to adequately address this argument in her brief;
therefore, we will not consider it on appeal. Lewis v. State,
469 P.2d 689, 691-92 n.2 (Alaska 1970). Third, Capener argues
that TDX has implicitly acknowledged her occupancy right since it
has not reconveyed the land to the City of St. Paul. This does
not follow logically, since there are a number of alternative
reasons which can explain TDX's failure to reconvey to the
municipality. In any case, this argument was not raised below
and therefore will not be considered on appeal. Arnett v.
Baskous, 856 P.2d 790, 791 n.1 (Alaska 1993) (points not raised
in the trial court will not be considered on appeal).
22 A.E. Capener was an ordained missionary of the
Assemblies of God. Mrs. Capener was and is a nationally
appointed home missionary of the Assemblies of God, in good
standing. A recent article in the Anchorage Daily News presents
the more human side of the Capeners' life and the Assemblies of
God mission on St. Paul Island. T.A. Badger, 50 Years a
Missionary in Tough Alaska Country, Anchorage Daily News, August
29, 1994, at B-1. The article has no evidentiary value, though I
found it instructive in that the Alaska Director of the
Assemblies of God opined that the St. Paul mission probably would
not be continued after Mrs. Capener's tenure.
23 The court continually refers to the Assemblies of God
parsonage as the Capeners' "house." Webster's Second New
International Dictionary defines parsonage as follows:
1. Eng.Eccl.Law. A certain portion of
lands, tithes, and offerings, for the
maintenance of the parson of a parish. 2.
The glebe and house, or house only,
appropriated by a parish or ecclesiastical
society to the maintenance or use of the
incumbent or settled pastor or minister. 3.
The tithe belonging to a parson. Scot.
It is clear that the parsonage constructed on Lot 3 was
"appropriated by [an] ecclesiastical society to the maintenance
of the incumbent or settled pastor or minister." The parsonage
did not exist separate from the Capeners' mission.
24 The court does not define or identify what constitutes
"an equitable interest in the improvements."
25 Although the court recognizes that Section 14(c)(1) is
an analogue to the Townsite and Native Townsite Acts, it cites no
authority suggesting that those Acts make any similar
26 On September 29, 1969, the Alaska District Council of
the Assemblies of God, Inc., filed a petition with the
appropriate agency within the United States Department of the
Interior to obtain title to the lots in question. The petition
was rejected at every administrative level.
The petition was preceded by inquiries made by the
Assemblies of God dating back to at least April 1966, regarding
purchase of the lots. This was several months prior to the
issuance of the Special Use Permit on July 7, 1966. Between
issuance of the Special Use Permit and the actual petition to
obtain title, the Fur Seal Act of November 2, 1966, P.L. No. 89-
702, 80 Stat. 1091, 16 U.S.C. sec. 1155 et seq., became law. It
precluded obtaining title under laws which might have enabled the
Assemblies of God to do so. By the time administrative appeals
were in process, ANCSA had been enacted, and had to be
considered. The net result was that the Assemblies of God was
never able to obtain title to the lots.
27 The court declines to follow the rule because "TDX
offers no interpretation of Section 14(c) which is reasonably
consistent with the language of that Section, or its purpose."
Nothing in the text of ANCSA or case law interpreting ANCSA
suggests that TDX is under a burden to produce an interpretation
which resolves the ambiguity. Ambiguities are resolved in favor
of Natives. If TDX is under such a burden, and has not satisfied
it, then the court's exercise in crafting its own definition is a
waste of time. Mrs. Capener should prevail by default. It is
noteworthy that the definition of "occupant"ultimately crafted
by the court is not one proposed by Mrs. Capener.
Furthermore, the asserted failure of TDX's offer is
belied by the court itself in its discussion of various townsite
laws, ANCSA's parallelism with them, and Congress' intention that
Section 14(c) "address the same general purpose as the townsite
laws previously governing Alaska." It is also dispelled by the
superior court's carefully reasoned decision. It reasoned, and
concluded, inter alia:
In its briefing, TDX correctly asserts that only the
church possessed a possible 14(c)(1) claim, a claim
which has never been adjudicated and which the church
has now disclaimed. Mrs. Capener occupied the land
subject to the church's rights, and the church, not
Mrs. Capener, received the permit. As TDX points out,
the church could have removed the Capeners from the
property at any time. . . .
Donnelly v. United States . . . held that 14(c)(1)
could not be used to give "amnesty"for "trespassers,
failed homesteaders, or land users without any vested
rights prior to December 1, 1971". . . . Moreover,
the congressional intent to provide a "just and fair
settlement"of native land claims is inconsistent with
an interpretation of 14(c)(1) that could reduce the
land patented to native corporations in favor of
trespassers.". . .
The state [sic], by contrast, has never issued any
permit, license, or similar right to Mrs. Capener. The
state [sic] issued a revocable permit to the church,
which had the right, at any time, to remove the
Capeners and replace them with different missionaries.
[I]n Buettner v. Kavilco, Inc., . . . [t]he court found
that the appellants "as permittees . . . were entitled
to occupy the land although it was owned by someone
else," thus deciding that 14(c)(1) requires native
corporations to convey title to permittees, so long as
the permittee fulfills 14(c)(1)'s occupancy
requirements. . . . Again, . . . Mrs. Capener does not
hold a permit.
. . . .
Secretarial Order No. 3016 and accompanying Memorandum,
Valid Existing Rights Under the Alaska Native Claims
Settlement Act, . . . sheds light on the legislative
intent behind the ANCSA. . . . The Memo notes that the
regulations distinguish between rights "leading to the
acquisition of title,"which the Act intends to exclude
from conveyance to natives; and "rights of a temporary
nature", which the Act intends to convey, but with the
condition that the right be protected "for the duration
of the interest". . . .
. . . Mrs. Capener did not hold a license or permit,
nor any other vested right or interest that could "lead
to the acquisition of title"at the time of the Act's
passage. Because Mrs. Capener has no claim which could
have ripened into a title interest had ANCSA not
passed, she cannot now acquire title because the Act
did pass, particularly considering the Act's purpose of
giving title to Alaska Natives.
Order, November 21, 1990, pp. 4-9.
The court may disagree with the superior court's
reasoning and conclusion. However, I cannot conclude in good
conscience that this interpretation, which TDX successfully
presented to the superior court and which it argues to this
court, is not reasonably consistent with Section 14(c)(1) or its
28 Townsite Act of 1891, ch. 561, 11, 26 Stat. 1099,
repealed by Pub. L. No. 94-579, Title VII, 703(a), 90 Stat.
2789 (Oct. 21, 1976).
29 Alaska Native Townsite Act of 1926, ch. 379, 1, 44
Stat. 629, repealed by Pub. L. No. 94-579, Title VII, 703(a),
90 Stat. 2789 (Oct. 21, 1976).
30 Section 14(g) states that
[a]ll conveyances made pursuant to this
chapter shall be subject to valid existing
rights. . . . [T]he patent shall contain
provisions making it subject to the lease,
contract, permit, right-of-way, or easement,
and the right of the lessee, contractee,
permittee, or grantee to the complete
enjoyment of all rights, privileges, and
benefits thereby granted to him.
31 Alaska Native Allotment Act of 1906, ch. 2469, 34 Stat.
197, amended ch. 891, 1(a)-(d), 70 Stat. 954, repealed by Pub.
L. No. 92-203, 18(a), 85 Stat. 710 (Dec. 18, 1971).
32 I believe that a proper reading of ANCSA compels the
conclusion that sections 14(c) and 14(g) are mutually exclusive.
The United States Court of Appeals for the Ninth Circuit has held
that the two provisions are not mutually exclusive. Buettner v.
Kavilco, 860 F.2d 341, 343 (9th Cir. 1988) ("We hold that
permittees such as Buettner and Hamar are within this class [of
persons protected under 14(c)]."). A practical application of
this makes little sense, however. For instance, assume a user
has a long term lease from the United States granting permission
to operate a commercial supply business in a community. It is
the person's primary place of business. Under the terms of the
lease, the person has no expectation of ever gaining title to the
leasehold. However, the person does expect lease rights to be
honored and protected. ANCSA is enacted. Under section 14(g),
these rights are protected. Under section 14(c)(1), the person
is entitled to a conveyance of title from the Village
Corporation. Granting the person title under 14(c)(1) is a
We noted in Hakala that many of the lands subject to
ANCSA are remote lands. 753 P.2d at 1148. Some physical
presence is required in order to use the lands. As noted by
Justice Rabinowitz in his dissent in Hakala, the use of a site
for one-tenth of a person's business was sufficient occupancy to
constitute a "primary place of business." If a lessee can so
easily take under Section 14(c)(1), there little point in
protecting existing permits in Section 14(g).
33 Not only does section 4(b) of ANCSA use these terms in
the context of aboriginal title, but "use or occupancy"has been
a term of art in Alaska Native law for over a hundred years.
ANCSA 4(b) (referring to "claims of aboriginal title in Alaska
based on use and occupancy"). See, e.g., Organic Act of May 17,
1884, ch. 53, 23 Stat. 24, 8 (referring to "the Indians['] . .
. use or occupation"); Sutter v. Heckman, 1 Ak. Rpts. 188 (D.C.
Alaska 1901), aff'd on other grounds, 119 F. 83 (9th Cir. 1902)
(construing section 8); Worthen Lumber Mills v. Alaska-Juneau
Gold Mining Co., 229 F. 966 (9th Cir. 1916) (also construing
section 8); Miller v. U.S., 159 F.2d 997 (9th Cir. 1947) (noting
Congressional recognition of the "occupancy or possession" of
Alaskan land by Indians); Tlingit and Haida Indians of Alaska v.
U.S., 177 F.Supp. 452, 463-64 (Ct.Cl. 1959) (referring to "use
and occupancy title of the . . . Indians").
34 A Native village is a "tribe, band, clan, group,
village, community, or association" of twenty-five or more
Natives. Section 3(c). Native villages are allowed to form
Village Corporations. Land selection is allowed by Village
Corporations that have at least twenty-five Native residents, if
the village is not modern and urban and a majority of the
residents are Natives. Sections 11(b)(2) & (3). The land
remaining after other section 14(c) conveyances is conveyed by
the Village Corporation to a Municipal Corporation "in the Native
village" or to the State to hold in trust for a future Municipal
Corporation "established in the Native village." Section
14(c)(3). The Municipal Corporation thus is comprised of all or
a part of the Native village. It is simply the body politic as
the Village Corporation is the body corporate. When a Municipal
Corporation receives less land from the Village Corporation
because of Section 14 conveyances, the Native residents
effectively are receiving less land.