Capener v. Tanadgusix Corp.

*1075COMPTON, 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 God.

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.1 By virtue of their mission, they had permission to use the parsonage.2 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.

1. The Court’s Definition of “Occupant” Is Unpersuasive.

The court concludes that an “occupant” is “one who occupies a particular place or *1076premises and has an equitable interest in the improvements thereon.”3 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.4 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.
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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.

Opinion at 1072-1073. 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 that tenant.

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 the property.

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 sanie: the tenant’s Section 14(e)(1) rights will conflict with the United States’ lessee’s Section 14(g) rights.

The court’s definition of occupancy is flawed even when viewed only in the context of Section 14(e)(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 1073 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 utility.

II. The Court Improperly Applies Its Own Definition of “Occupant.”

The court’s definition of occupant requires that the occupier of the premise have an *1077“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 1073. 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(e) 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 God.

Mrs. Capener’s sponsor, the Assemblies of God, was denied title when it tried to obtain it outside of the context of ANCSA.5 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.6 I do not *1078know 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 3,1 conclude they have done at least that.

Persons entitled to assert occupancy rights under the Townsite7 and Native Townsite Acts8 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 (1978),

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 unsubdivid-ed 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 *1079lead to title, such as homesteads and mining claims. Section 14(g) protects the existing rights of those temporarily on the land.9 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,10 may have had reasonable expectations that entry could be made under the Townsite and Native Townsite Acts, following which they would obtain title.11

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 clear.

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).12 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.

*1080Finally, 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.13 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).

. 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-l. The article has no evidentiaiy 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.

. 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.

. The court does not define or identify what constitutes "an equitable interest in the improvements."

. 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 distinction.

. 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 town-site 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. *1078Mrs. Capener occupied the land subject to the church's rights, and the church, not Mrs. Ca-pener, received the permit. As TDX points out, the church could have removed the Ca-peners 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 per-mittee fulfills § 14(c)(l)'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 ANC-SA.... 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 purpose.

. Townsite Act of 1891, ch. 561, § 11, 26 Stat. 1095, 1099, repealed by Pub.L. No. 94-579, Title VII, § 703(a), 90 Stat. 2743, 2789 (Oct. 21, 1976).

. 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).

. Section 14(g) states that

[a]Il 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.

. Alaska Native Allotment Act of 1906, ch. 2469, 34 Stat. 197, amended ch. 891, § l(a)-(d), 70 Stat. 954, repealed by Pub.L. No. 92-203, § 18(a), 85 Stat. 688, 710 (Dec. 18, 1971).

. 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 Bu-ettner 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. ANC-SA 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 windfall.

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).

.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., 147 Ct.Cl. 315, 177 F.Supp. 452, 463-64 (1959) (referring to "use and occupancy title of the ... Indians”).

. 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.