dissenting.
By legislation enacted in 1995, the United States removed from the Alaskan Native Villages their entitlement to share with the Regional Corporations in the full value received for sale of Alaskan Native timber resources. The legislation removed from this statutory sharing obligation the revenues generated by sale of the timber below its initial cost valuation. This targeted legislative removal from the Native Villages of their existing entitlement to share in the revenues already received, attributable to and directly related to the timber resources in transactions long completed, raises a straightforward issue cognizable under the Fifth Amendment. I must, respectfully, dissent from my colleagues’ ruling that Bay View did not state a claim on which relief can be granted.
Until 1995, the Alaska Native Claims Settlement Act of 1971 (ANCSA) required sharing of “all revenues received” from the timber and mineral resources of the Native Alaskan lands. ANCSA § 7(i), codified at 43 U.S.C. § 1606(i). As explained in Aleut Corp. v. Arctic Slope Regional Corp., 484 F.Supp. 482, 485 (D.Alaska 1980), “revenues received by a regional corporation that are attributable to, directly related to, or generated by the acquisition of an interest in the corporation’s subsurface estate are revenues subject to the sharing provisions of section 7(i).” Many years later, the 1995 Amendment amended Section 7(i) as follows:
(A) Section 7(i)(2)-for purposes of this subsection, the term “revenue” does not include any benefit received or realized for the use of losses incurred or credits earned by the Regional Corporation.
*1267(B) This amendment shall be effective as of the date of the enactment of the Alaska Native Claims Settlement Act ... [1971].
We are not concerned here with the effect of the 1995 Amendment on prospective rights of either the Regional Corporations or the Native Villages. However, its explicit retroactivity had a significant effect on rights already accrued and vested, for the sales here at issue were all completed between 1984 and 1988. These were the sales that were targeted by the 1995 enactment.
DISCUSSION
The ANCSA of 1971 is “a comprehensive statute designed to settle all land claims by Alaska Natives.” Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 523, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998). Although its implementation has not been free of dispute, a foundation principle was that the economic benefits of Native natural resources would be shared equitably among Alaska Natives whose lands were resource-poor as well as those that were rich. See 43 U.S.C. § 1602(i); Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 732 (9th Cir.1978) (‘We agree with the district court that the revenue sharing provision in § 7(i) “was intended to achieve a rough equality in assets among all the Natives.... [The section] insures that all of the Natives will benefit in roughly equal proportions from these assets.’”) (quoting Aleut Corp. v. Arctic Slope Regional Corp., 421 F.Supp. 862, 867 (D.Alaska 1976)).
The Deficit Reduction Act of 1984, terminated in 1988, was specifically designed to permit the Alaska Natives to add value to their timber resources in order to enlarge the economic benefits available from their natural resources. Sale of the tax losses of a timber sale is directly related to the timber sale. Indeed, the record shows that the native timber sales strategy was dominated by this purpose, producing what Bay View calls “fire sales” in 1988 in order to take advantage of this increased value of the timber. As Bay View explains, the sale of the timber and of the losses of the timber sale were not two entirely different transactions but a single continuing transaction, each causing the occurrence of the other.
Section 1606(i) of 43 U.S.C., as enacted and as it existed until 1995, required that a percentage of “all revenues ... from the timber resources and subsurface estate” be shared among the regional corporations and with the village corporations. The 1995 Amendment authorized the Regional Corporations to exclude from this obligation the revenues received from sale of the tax losses generated by the timber sales. The Regional Corporations’ reluctance to share these revenues entailed sales of timber losses of over $1.5 billion, with a sharing value to the villages of about $425,000,000.
For these sales, already completed and proceeds already realized, the villages’ right to their statutory share was fully vested. Legislation that retroactively affects vested rights is “not favored in the law.” Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). It violates fundamental concepts of justice and fairness, to change the rules after the game is played. In Eastern Enterprises v. Apfel, 524 U.S. 498, 529, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) the Court struck down a statute that “imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of that liability is substantially disproportionate to the parties’ experience.” See also, e.g., United States v. Security Industrial Bank, 459 U.S. 70, 73-74, 103 S.Ct. *1268407, 74 L.Ed.2d 235 (1982) (a bankruptcy avoidance statute is not subject to retroactive application). In this case, with specific retroactive effect on previously vested rights, the consequences thereof are not immune from the Fifth Amendment.
The government stresses that Alaska’s Senator Stevens told Congress that the 1995 Amendment was simply a clarification, not a change of law. Bay View points out that there were no hearings, and that it is not reasonable to believe that in 1971 the Native Villages would have readily yielded their right to share in $1.5 billion in revenue from their timber resources. Nor does it appear even remotely likely that the villages would have agreed in 1971 to the hasty sale of these resources at a severe loss during the 1984-1988 window of the Deficit Reduction Act, unless they would share in the revenues of those sales. Cf. Peabody Coal Co. v. Navajo Nation, 75 F.3d 457, 467 (9th Cir.1996) (the requirement that mineral sale “proceeds” be shared between Navajo and Hopi tribes included proceeds of a tax levied by the Navajo on their sale of minerals).
I take note of the government’s argument that there were in fact some distributions of tax-loss proceeds among the Native Villages, thus reducing the magnitude of the asserted taking. This aspect relates to quantum, not entitlement, and was not reached by the Court of Federal Claims. Nor do I endorse the court’s casual disposition of the trust relationship between the United States and the Alaska Natives, for the ANCSA did not eliminate all fiduciary responsibility of the United States. Before enactment of the 1995 Amendment the Alaskan Native entities were litigating this issue among themselves. The Ninth Circuit, before whom the case was pending at the time of the 1995 Amendment, recognized that any remedy must now come from the Tucker Act, stating in Bay View, Inc. v. Ahtna, Inc., 105 F.3d 1281, 1286 (9th Cir.1997) that “We express no view as to whether appellants had a property right that was destroyed by Congress; that is a question that will have to be answered by the Court of Federal Claims, if appellants choose to bring suit there.”
Statute and precedent make quite clear that Bay View had a property right in the full proceeds of the timber sales. The retroactive legislation which deprived Bay View of its share raised a claim cognizable under the Fifth Amendment. From this court’s affirmation of the dismissal of that claim, I respectfully dissent.