43 U.S.C. § 1618 — Revocation of reserved rights; excepted

Page 473 TITLE 43—PUBLIC LANDS § 1618 ka Native Claims Settlement Act (as added by section 301) [43 U.S.C. 1617(d)] or any voluntary reconveyance to facilitate a land transfer, a Village Corporation has insufficient remaining selections from which to receive its full entitlement under the Alaska Native Claims Settlement Act, the Secretary may use the authority and procedures available under paragraph (3) of section 22(j) of the Alaska Native Claims Settlement Act (43 U.S.C. 1621(j)) (as added by section 208) to make addi- tional land available for selection by the Village Cor- poration.’’ ALASKA NATIVE ALLOTMENT SUBDIVISION Pub. L. 108–337, Oct. 18, 2004, 118 Stat. 1357, provided that: ‘‘SECTION 1. SHORT TITLE. ‘‘This Act may be cited as the ‘Alaska Native Allot- ment Subdivision Act’. ‘‘SEC. 2. DEFINITIONS. ‘‘In this Act: ‘‘(1) RESTRICTED LAND.—The term ‘restricted land’ means land in the State that is subject to Federal re- strictions against alienation and taxation. ‘‘(2) SECRETARY.—The term ‘Secretary’ means the Secretary of the Interior. ‘‘(3) STATE.—The term ‘State’ means the State of Alaska. ‘‘SEC. 3. SUBDIVISION AND DEDICATION OF ALAS- KA NATIVE RESTRICTED LAND. ‘‘(a) IN GENERAL.—An Alaska Native owner of re- stricted land may, subject to the approval of the Sec- retary— ‘‘(1) subdivide the restricted land in accordance with the laws of the— ‘‘(A) State; or ‘‘(B) applicable local platting authority; and ‘‘(2) execute a certificate of ownership and dedica- tion with respect to the restricted land subdivided under paragraph (1) with the same effect under State law as if the restricted land subdivided and dedicated were held by unrestricted fee simple title. ‘‘(b) RATIFICATION OF PRIOR SUBDIVISIONS AND DEDICA- TIONS.—Any subdivision or dedication of restricted land executed before the date of enactment of this Act [Oct. 18, 2004] that has been approved by the Secretary and by the relevant State or local platting authority, as ap- propriate, shall be considered to be ratified and con- firmed by Congress as of the date on which the Sec- retary approved the subdivision or dedication. ‘‘SEC. 4. EFFECT ON STATUS OF LAND NOT DEDI- CATED. ‘‘Except in a case in which a specific interest in re- stricted land is dedicated under section 3(a)(2), nothing in this Act terminates, diminishes, or otherwise affects the continued existence and applicability of Federal re- strictions against alienation and taxation on restricted land or interests in restricted land (including restricted land subdivided under section 3(a)(1)).’’ § 1618. Revocation of reserved rights; excepted reserve; acquisition of title to surface and subsurface estates in reserve; election of Vil- lage Corporations; restoration of land to Elim Native Corporation (a) Revocation of reserved rights; excepted re- serve Notwithstanding any other provision of law, and except where inconsistent with the provi- sions of this chapter, the various reserves set aside by legislation or by Executive or Secre- tarial Order for Native use or for administration of Native affairs, including those created under the Act of May 31, 1938 (52 Stat. 593), are hereby revoked subject to any valid existing rights of non-Natives. This section shall not apply to the Annette Island Reserve established by the Act of March 3, 1891 (26 Stat. 1101) and no person en- rolled in the Metlakatla Indian community of the Annette Island Reserve shall be eligible for benefits under this chapter. (b) Acquisition of title to surface and subsurface estates in reserve; election of Village Cor- porations Notwithstanding any other provision of law or of this chapter, any Village Corporation or Cor- porations may elect within two years to acquire title to the surface and subsurface estates in any reserve set aside for the use or benefit of its stockholders or members prior to December 18, 1971. If two or more villages are located on such reserve, the election must be made by all of the members or stockholders of the Village Corpora- tions concerned. In such event, the Secretary shall convey the land to the Village Corporation or Corporations, subject to valid existing rights as provided in section 1613(g) of this title, and the Village Corporation shall not be eligible for any other land selections under this chapter or to any distribution of Regional Corporations funds pursuant to section 1606 of this title, and the enrolled residents of the Village Corporation shall not be eligible to receive Regional Cor- poration stock. (c) Restoration of land to Elim Native Corpora- tion (1) Findings The Congress finds that— (A) approximately 350,000 acres of land were withdrawn by Executive orders in 1917 for the use of the United States Bureau of Education and of the Natives of Indigenous Alaskan race; (B) these lands comprised the Norton Bay Reservation (later referred to as Norton Bay Native Reserve) and were set aside for the benefit of the Native inhabitants of the Es- kimo Village of Elim, Alaska; (C) in 1929, 50,000 acres of land were deleted from the Norton Bay Reservation by Execu- tive order; (D) the lands were deleted from the Res- ervation for the benefit of others; (E) the deleted lands were not available to the Native inhabitants of Elim under sub- section (b) of this section at the time of pas- sage of this chapter; (F) the deletion of these lands has been and continues to be a source of deep concern to the indigenous people of Elim; and (G) until this matter is dealt with, it will continue to be a source of great frustration and sense of loss among the shareholders of the Elim Native Corporation and their de- scendants. (2) Withdrawal The lands depicted and designated ‘‘With- drawal Area’’ on the map dated October 19, 1999, along with their legal descriptions, on file with the Bureau of Land Management, and entitled ‘‘Land Withdrawal Elim Native Cor- poration’’, are hereby withdrawn, subject to valid existing rights, from all forms of appro- priation or disposition under the public land Page 474 TITLE 43—PUBLIC LANDS § 1618 laws, including the mining and mineral leas- ing laws, for a period of 2 years from May 2, 2000, for selection by the Elim Native Corpora- tion (hereinafter referred to as ‘‘Elim’’). (3) Authority to select and convey Elim is authorized to select in accordance with the rules set out in this paragraph, 50,000 acres of land (hereinafter referred to as ‘‘Con- veyance Lands’’) within the boundary of the Withdrawal Area described in paragraph (2). The Secretary is authorized and directed to convey to Elim in fee the surface and sub- surface estates to 50,000 acres of valid selec- tions in the Withdrawal Area, subject to the covenants, reservations, terms and conditions and other provisions of this subsection. (A) Elim shall have 2 years from May 2, 2000, in which to file its selection of no more than 60,000 acres of land from the area de- scribed in paragraph (2). The selection appli- cation shall be filed with the Bureau of Land Management, Alaska State Office, shall de- scribe a single tract adjacent to United States Survey No. 2548, Alaska, and shall be reasonably compact, contiguous, and in whole sections except when separated by un- available land or when the remaining enti- tlement is less than a whole section. Elim shall prioritize its selections made pursuant to this subsection at the time such selec- tions are filed, and such prioritization shall be irrevocable. Any lands selected shall re- main withdrawn until conveyed or full enti- tlement has been achieved. (B) The selection filed by Elim pursuant to this subsection shall be subject to valid ex- isting rights and may not supercede prior se- lections of the State of Alaska, any Native corporation, or valid entries of any private individual unless such selection or entry is relinquished, rejected, or abandoned prior to conveyance to Elim. (C) Upon receipt of the Conveyance Lands, Elim shall have all legal rights and privi- leges as landowner, subject only to the cov- enants, reservations, terms and conditions specified in this subsection. (D) Selection by Elim of lands under this subsection and final conveyance of those lands to Elim shall constitute full satisfac- tion of any claim of entitlement of Elim with respect to its land entitlement. (4) Covenants, reservations, terms and condi- tions The covenants, reservations, terms and con- ditions set forth in this paragraph and in para- graphs (5) and (6) with respect to the Convey- ance Lands shall run with the land and shall be incorporated into the interim conveyance, if any, and patent conveying the lands to Elim. (A) Consistent with paragraph (3)(C) and subject to the applicable covenants, reserva- tions, terms and conditions contained in this paragraph and paragraphs (5) and (6), Elim shall have all rights to the timber resources of the Conveyance Lands for any use includ- ing, but not limited to, construction of homes, cabins, for firewood and other domes- tic uses on any Elim lands: Provided, That cutting and removal of Merchantable Tim- ber from the Conveyance Lands for sale shall not be permitted: Provided further, That Elim shall not construct roads and related infrastructure for the support of such cut- ting and removal of timber for sale or per- mit others to do so. ‘‘Merchantable Timber’’ means timber that can be harvested and marketed by a prudent operator. (B) Public Land Order 5563 of December 16, 1975, which made hot or medicinal springs available to other Native Corporations for selection and conveyance, is hereby modified to the extent necessary to permit the selec- tion by Elim of the lands heretofore encom- passed in any withdrawal of hot or medicinal springs and is withdrawn pursuant to this subsection. The Secretary is authorized and directed to convey such selections of hot or medicinal springs (hereinafter referred to as ‘‘hot springs’’) subject to applicable cov- enants, reservations, terms and conditions contained in paragraphs (5) and (6). (C) Should Elim select and have conveyed to it lands encompassing portions of the Tubutulik River or Clear Creek, or both, Elim shall not permit surface occupancy or knowingly permit any other activity on those portions of land lying within the bed of or within 300 feet of the ordinary high wa- terline of either or both of these water courses for purposes associated with mineral or other development or activity if they would cause or are likely to cause erosion or siltation of either water course to an extent that would significantly adversely impact water quality or fish habitat. (5) Rights retained by the United States With respect to conveyances authorized in paragraph (3), the following rights are re- tained by the United States: (A) To enter upon the conveyance lands, after providing reasonable advance notice in writing to Elim and after providing Elim with an opportunity to have a representative present upon such entry, in order to achieve the purpose and enforce the terms of this paragraph and paragraphs (4) and (6). (B) To have, in addition to such rights held by Elim, all rights and remedies available against persons, jointly or severally, who cut or remove Merchantable Timber for sale. (C) In cooperation with Elim, the right, but not the obligation, to reforest in the event previously existing Merchantable Tim- ber is destroyed by fire, wind, insects, dis- ease, or other similar manmade or natural occurrence (excluding manmade occurrences resulting from the exercise by Elim of its lawful rights to use the Conveyance Lands). (D) The right of ingress and egress over easements under section 1616(b) of this title for the public to visit, for noncommercial purposes, hot springs located on the Convey- ance Lands and to use any part of the hot springs that is not commercially developed. (E) The right to enter upon the lands con- taining hot springs for the purpose of con- ducting scientific research on such hot springs and to use the results of such re- Page 475 TITLE 43—PUBLIC LANDS § 1618 1 So in original. Probably should be ‘‘section’’. search without compensation to Elim. Elim shall have an equal right to conduct re- search on the hot springs and to use the re- sults of such research without compensation to the United States. (F) A covenant that commercial develop- ment of the hot springs by Elim or its suc- cessors, assigns, or grantees shall include the right to develop only a maximum of 15 percent of the hot springs and any land with- in 1⁄4 mile of the hot springs. Such commer- cial development shall not alter the natural hydrologic or thermal system associated with the hot springs. Not less than 85 per- cent of the lands within 1⁄4 mile of the hot springs shall be left in their natural state. (G) The right to exercise prosecutorial dis- cretion in the enforcement of any covenant, reservation, term or condition shall not waive the right to enforce any covenant, res- ervation, term or condition. (6) General (A) Memorandum of Understanding The Secretary and Elim shall, acting in good faith, enter into a Memorandum of Un- derstanding (hereinafter referred to as the ‘‘MOU’’) to implement the provisions of this subsection. The MOU shall include among its provisions reasonable measures to pro- tect plants and animals in the hot springs on the Conveyance Lands and on the land with- in 1⁄4 mile of the hot springs. The parties shall agree to meet periodically to review the matters contained in the MOU and to ex- ercise their right to amend, replace, or ex- tend the MOU. Such reviews shall include the authority to relocate any of the ease- ments set forth in subparagraph (D) if the parties deem it advisable. (B) Incorporation of terms Elim shall incorporate the covenants, res- ervations, terms and conditions, in this sub- section in any deed or other legal instru- ment by which it divests itself of any inter- est in all or a portion of the Conveyance Lands, including without limitation, a lease- hold interest. (C) Section 1616(b) easements The Bureau of Land Management, in con- sultation with Elim, shall reserve in the conveyance to Elim easements to the United States pursuant to subsection 1 1616(b) of this title that are not in conflict with other ease- ments specified in this paragraph. (D) Other easements The Bureau of Land Management, in con- sultation with Elim, shall reserve easements which shall include the right of the public to enter upon and travel along the Tubutulik River and Clear Creek within the Convey- ance Lands. Such easements shall also in- clude easements for trails confined to foot travel along, and which may be established along each bank of, the Tubutulik River and Clear Creek. Such trails shall be 25 feet wide and upland of the ordinary high waterline of the water courses. The trails may deviate from the banks as necessary to go around man-made or natural obstructions or to por- tage around hazardous stretches of water. The easements shall also include one-acre sites along the water courses at reasonable intervals, selected in consultation with Elim, which may be used to launch or take out water craft from the water courses and to camp in non-permanent structures for a period not to exceed 24 hours without the consent of Elim. (E) Inholders The owners of lands held within the exte- rior boundaries of lands conveyed to Elim shall have all rights of ingress and egress to be vested in the inholder and the inholder’s agents, employees, co-venturers, licensees, subsequent grantees, or invitees, and such easements shall be reserved in the convey- ance to Elim. The inholder may not exercise the right of ingress and egress in a manner that may result in substantial damage to the surface of the lands or make any perma- nent improvements on Conveyance Lands without the prior consent of Elim. (F) Iditarod trail The Bureau of Land Management may re- serve an easement for the Iditarod National Historic Trail in the conveyance to Elim. (7) Implementation There are authorized to be appropriated such sums as may be necessary to implement this subsection. (Pub. L. 92–203, § 19, Dec. 18, 1971, 85 Stat. 710; Pub. L. 106–194, § 1, May 2, 2000, 114 Stat. 239.) Editorial Notes REFERENCES IN TEXT Act of May 31, 1938 (52 Stat. 593), referred to in subsec. (a), is act May 31, 1938, ch. 304, 52 Stat. 593, which was classified to section 497 of Title 25, Indians, prior to re- peal by Pub. L. 94–579, title VII, § 704(a), Oct. 21, 1976, 90 Stat. 2792. The Annette Island Reserve established by the Act of March 3, 1891 (26 Stat. 1101), referred to in subsec. (a), probably means act Mar. 3, 1891, ch. 561, § 15, 26 Stat. 1101, which was classified to section 495 of Title 25, Indi- ans, prior to omission from the Code as being of special and not general application. The time of passage of this chapter, referred to in subsec. (c)(1)(E), probably means the date of enactment of Pub. L. 92–203, which was approved Dec. 18, 1971. AMENDMENTS 2000—Subsec. (c). Pub. L. 106–194 added subsec. (c). GRANTS TO NATIVE GROUP CORPORATIONS FOR PLANNING, DEVELOPMENT, AND OTHER PURPOSES Pub. L. 96–487, title XIV, § 1413, Dec. 2, 1980, 94 Stat. 2498, provided that: ‘‘The Secretary shall pay by grant to each of the Native Group Corporations established pursuant to section 14(h)(2) of the Alaska Native Claims Settlement Act [section 1613(h)(2) of this title] and finally certified as a Native Group, an amount not more than $100,000 or less than $50,000 adjusted accord- ing to population of each Group. Funds authorized under this section may be used only for planning, de- velopment, and other purposes for which the Native Group Corporations are organized under the Settlement Act [this chapter].’’ Page 476 TITLE 43—PUBLIC LANDS § 1619 Statutory Notes and Related Subsidiaries GRANTS TO VILLAGE CORPORATIONS FOR PLANNING, DEVELOPMENT AND OTHER PURPOSES Pub. L. 94–204, § 14, Jan. 2, 1976, 89 Stat. 1154, provided that: ‘‘(a) The Secretary shall pay, by grant, $250,000 to each of the corporations established pursuant to sec- tion 14(h)(3) of the Settlement Act [section 1613(h)(3) of this title]. ‘‘(b) The Secretary shall pay, by grant, $100,000 to each of the following Village Corporations: ‘‘(1) Arctic Village; ‘‘(2) Elim; ‘‘(3) Gambell; ‘‘(4) Savoonga; ‘‘(5) Tetlin; and ‘‘(6) Venetie. ‘‘(c) Funds authorized under this section may be used only for planning, development, and other purposes for which the corporations set forth in subsections (a) and (b) are organized under the Settlement Act [this chap- ter]. ‘‘(d) There is authorized to be appropriated to the Secretary for the purpose of this section a sum of $1,600,000 in fiscal year 1976.’’ § 1619. Attorney and consultant fees (a) Holding moneys in Fund for authorized pay- ments The Secretary of the Treasury shall hold in the Alaska Native Fund, from the appropriation made pursuant to section 1605 of this title for the second fiscal year, moneys sufficient to make the payments authorized by this section. (b) Claims; submission A claim for attorney and consultant fees and out-of-pocket expenses may be submitted to the Chief Commissioner of the United States Court of Claims for services rendered before December 18, 1971, to any Native tribe, band, group, vil- lage, or association in connection with: (1) the preparation of this chapter and pre- viously proposed Federal legislation to settle Native claims based on aboriginal title, and (2) the actual prosecution pursuant to an au- thorized contract or a cause of action based upon a claim pending before any Federal or State Court or the Indians Claims Commission that is dismissed pursuant to this chapter. (c) Final date for filing of claims; form; informa- tion A claim under this section must be filed with the clerk of the Court of Claims within one year from December 18, 1971, and shall be in such form and contain such information as the Chief Commissioner shall prescribe. Claims not so filed shall be forever barred. (d) Rules for receipt, determination, and settle- ment of claims The Chief Commissioner or his delegate is au- thorized to receive, determine, and settle such claims in accordance with the following rules: (1) No claim shall be allowed if the claimant has otherwise been reimbursed. (2) The amount allowed for services shall be based on the nature of the service rendered, the time and labor required, the need for providing the service, whether the service was intended to be a voluntary public service or compensable, the existence of a bona fide attorney-client rela- tionship with an identified client, and the rela- tionship of the service rendered to the enact- ment of proposed legislation. The amount al- lowed shall not be controlled by any hourly charge customarily charged by the claimant. (3) The amount allowed for out-of-pocket ex- penses shall not include office overhead, and shall be limited to expenses that were necessary, reasonable, unreimbursed and actually incurred. (4) The amounts allowed for services rendered shall not exceed in the aggregate $2,000,000, of which not more than $100,000 shall be available for the payment of consultants’ fees. If the ap- proved claims exceed the aggregate amounts al- lowable, the Chief Commissioner shall authorize payment of the claims on a pro rata basis. (5) Upon the filing of a claim, the clerk of the Court of Claims shall forward a copy of such claims to the individuals or entities on whose behalf services were rendered or fees and ex- penses were allegedly incurred, as shown by the pleadings, to the Attorney General of the United States, to the Attorney General of the State of Alaska, to the Secretary of the Interior, and to any other person who appears to have an inter- est in the claim, and shall give such persons ninety days within which to file an answer con- testing the claim. (6) The Chief Commissioner may designate a trial commissioner for any claim made under this section and a panel of three commissioners of the court to serve as a reviewing body. One member of the review panel shall be designated as presiding commissioner of the panel. (7) Proceedings in all claims shall be pursuant to rules and orders prescribed for the purpose by the Chief Commissioner who is hereby author- ized and directed to require the application of the pertinent rules of practice of the Court of Claims insofar as feasible. Claimants may ap- pear before a trial commissioner in person or by attorney, and may produce evidence and exam- ine witnesses. In the discretion of the Chief Commissioner or his designate, hearings may be held in the localities where the claimants reside if convenience so demands. (8) Each trial commissioner and each review panel shall have authority to do and perform any acts which may be necessary or proper for the efficient performance of their duties, and shall have the power of subpena, the power to order audit of books and records, and the power to administer oaths and affirmations. Any sanc- tion authorized by the rules of practice of the Court of Claims, except contempt, may be im- posed on any claimant, witness, or attorney by the trial commissioner, review panel, or Chief Commissioner. None of the rules, regulations, rulings, findings, or conclusions authorized by this section shall be subject to judicial review. (9) The findings and conclusions of the trial commissioner shall be submitted by him, to- gether with the record in the case, to the review panel of commissioners for review by it pursu- ant to such rules as may be provided for the pur- pose, which shall include provision for submit- ting the decision of the trial commissioner to the claimant and any party contesting the claim for consideration, exception, and argument be- fore the panel. The panel, by majority vote, shall adopt or modify the findings or the conclu- sions of the trial commissioner.