RUDOLPH CONTRERAS, District Judge.
Four tribes of Alaska Natives and one individual Native brought this suit to challenge the Secretary of the Interior's decision to leave in place a regulation that treats Alaska Natives differently from other native peoples. The challenged regulation governs the taking of land into trust under Section 5 of the Indian Reorganization Act, 25 U.S.C. § 465; it provides that, with one exception, the regulatory procedures "do not cover the acquisition of land in trust status in the State of Alaska." 25 C.F.R. § 151.1. The plaintiffs argue that this exclusion of Alaska Natives—and only Alaska Natives—from the land-into-trust application process is void under 25 U.S.C. § 476(g), which nullifies regulations that discriminate among Indian tribes. The State of Alaska has intervened to argue that the differential treatment is required by the Alaska Native Claims Settlement Act ("ANCSA" or the "Claims Settlement Act"), which (on the State's account) deprived the Secretary of the statutory authority to take most Alaska land into trust. The Secretary disagrees, but nonetheless seeks to justify the regulation by reference to ANCSA. For the reasons explained below, the court concludes that the Secretary retains his statutory authority to take land into trust on behalf of all Alaska Natives, and that his decision to maintain the exclusion of most Natives from the land-into-trust regulation violates 25 U.S.C. § 476(g), which provides that contrary regulations "shall have no force or effect." The court therefore grants summary judgment to the plaintiffs, and orders additional briefing on the question of the proper remedy.
The land claims of Alaska Natives remained unresolved for the first century of our history in Alaska. The Treaty of Cession, by which Russia conveyed Alaska to the United States, provided that "[t]he uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country." Treaty of Cession, U.S.-Russia, art. 3, Mar. 30, 1867, 15 Stat. 542. When the Organic Act of 1884 established a civil government in Alaska, it also declared "[t]hat the Indians or other persons in said district [that is,
Congress enacted a series of laws providing land for Alaska Natives without resolving their claims of aboriginal right. A reservation was established by Congress in 1891 for the Metlakatla Indians, who had recently moved to Alaska from British Columbia. See Metlakatla Indian v. Egan, 369 U.S. 45, 48, 82 S.Ct. 552, 7 L.Ed.2d 562 (1962). In the years that followed, other reserves were established by executive order. See COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 4.07[3][b][iii], at 337-38 (Nell Jessup Newton ed., 2012); DAVID S. CASE & DAVID A. VOLUCK, ALASKA NATIVES AND AMERICAN LAWS 81-110 (3d ed. 2012) (both discussing the history of reservation policy in Alaska). While those reserves were being established, Congress enacted Alaska Native Allotment Act, Pub. L. No. 59-171, 34 Stat. 197 (1906), and the Alaska Native Townsite Act, Pub. L. No. 69-280, 44 Stat. 629 (1926). The Allotment Act allowed Alaska Natives to acquire title to as much as one hundred and sixty acres of land that they used and occupied, while the Townsite Act "provid[ed] for the patenting of lots within Native townsites." United States v. Atlantic Richfield Co., 435 F.Supp. 1009, 1015 (D.Alaska 1977), aff'd 612 F.2d 1132 (9th Cir.1980). "Both acts placed restrictions on the title conveyed so that lands could not be alienated or taxed until ... certain federally prescribed conditions were met." CASE & VOLUCK at 113; see also Atlantic Richfield, 435 F.Supp. at 1015 ("Native townsite residents received a restricted deed, inalienable except by permission of the townsite trustee.").
In 1934, Congress enacted the Indian Reorganization Act, Pub. L. No. 73-383, 48 Stat. 984. Section 5 of the IRA provided that:
48 Stat. 985 (codified at 25 U.S.C. § 465). At the time of its enactment, Section 5 was inapplicable "to any of the Territories, colonies, or insular possessions of the United States," 48 Stat. 986 (codified at 25 U.S.C. § 473), but it was extended to the Territory of Alaska two years later, Act of May 1, 1936, Pub. L. No. 74-538, § 1, 49 Stat. 1250 (codified at 25 U.S.C. § 473a). That enactment also authorized the Secretary to designate reservations on certain Alaska lands. Id. § 2, 49 Stat. 1250-51. Seven reservations were established under that authority, see COHEN'S HANDBOOK § 4.07[3][b][iii], at 338, and three properties containing canneries were also taken into trust on behalf of Alaska Natives, AR 246 (Memorandum from Thomas L. Sansonetti, Solicitor, Department of the Interior ("Sansonetti Memo.") at 112 n. 277 (Jan. 11, 1993)).
In 1971, Congress enacted the Alaska Native Claims Settlement Act, Pub. L. No. 92-203, § 2(b), 85 Stat. 688, "a comprehensive
ANCSA, § 2(b), 85 Stat. 688 (codified at 43 U.S.C. § 1601(b)). To that end, the Claims Settlement Act "revoked `the various reserves set aside ... for Native use' by legislative or Executive action, except for the Annette Island Reserve inhabited by the Metlakatla Indians, and completely extinguished all aboriginal claims to Alaska land." Venetie, 522 U.S. at 524, 118 S.Ct. 948 (citing ANCSA, § 4 and quoting id., § 19(a) (codified at 43 U.S.C. §§ 1603, 1618(a))). The terms of the extinguishment were as follows:
ANCSA, § 4(b)-(c) (codified at 43 U.S.C. § 1603(b)-(c)). "In return, Congress authorized the transfer of $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations that were to be formed pursuant to the statute; all of the shareholders of these corporations were required to be Alaska Natives." Venetie, 522 U.S. at 524, 118 S.Ct. 948 (citing ANCSA, §§ 6, 8, 14 (codified at 43 U.S.C. §§ 1605, 1607, 1613)). "The ANCSA corporations received title to the transferred land in fee simple, and no federal restrictions applied to subsequent land transfers by them." Id. The Alaska Native tribes did not receive either land or money in the settlement; rather, their members received stock in the Native-owned corporations that received settlement land and funds. In that way, ANCSA "attempted to preserve Indian tribes, but simultaneously attempted to sever them from the land; it attempted to leave them as sovereign entities for some purposes, but as sovereigns without territorial reach." Venetie, 522 U.S. at 526, 118 S.Ct. 948 (quoting Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie Tribal Government, 101 F.3d 1286, 1303 (9th Cir.1996) (Fernandez, J., concurring)).
ANCSA repealed the Allotment Act, although the Secretary retained the power to process pending applications. ANCSA, § 18(a) (codified at 43 U.S.C. § 1617(a)). Five years later, Congress and the President enacted the Federal Land Policy and Management Act of 1976 ("FLPMA"), Pub. L. No. 94-579, 90 Stat. 2743, which repealed both the Townsite Act and Section 2 of the Act of May 1, 1936, 49 Stat. 1250-51, which authorized the Secretary to establish reservations in Alaska. See FLPMA § 704(a), 90 Stat. 2792. FLPMA did not repeal Section 1 of the 1936 Act, 49 Stat. 1250 (codified at 25 U.S.C. § 473a),
In the years after the Claims Settlement Act, the question arose whether the Secretary's land-into-trust authority had survived ANCSA and FLPMA, or whether one or both of those statutes had withdrawn a portion of that power. In 1978, the Secretary proposed a regulation to govern the taking of land into trust; the proposed rule made no special mention of Alaska. See Land Acquisitions, 43 Fed. Reg. 32,311 (July 19, 1978). Several months after that proposed rule was published, the Associate Solicitor for Indian Affairs signed an opinion letter addressing the question of whether the Secretary could take former reservation land into trust. The Associate Solicitor concluded that, in light of the Claims Settlement Act, "it would ... be an abuse of the Secretary's discretion to attempt to use Section 5 of the IRA (which, along with §§ 1, 7, 8, 15, and 17 of the IRA still apply to Alaska pursuant to the unrepealed portion of the Act of May 1, 1936) to restore the former Venetie Reserve to trust status." AR 3 (Memorandum from Thomas W. Fredericks, Associate Solicitor, Indian Affairs, Department of the Interior ("Fredericks Memo.") at 3 (Sept. 15, 1978)). The Associate Solicitor explained that:
Id. at 1-3; see also Sansonetti Memo. at 112 n. 276, AR 246 ("In 1978, the Acting Solicitor accepted the conclusion of the Associate Solicitor, Division of Indian Affairs, that although § 5 of the IRA, 25 U.S.C. § 465 (authority to acquire lands in trust for Indians), was not repealed with respect to Alaska, in light of the clear expression of congressional intent in ANCSA not to create trusteeship or a reservation system, it would be an abuse of discretion for the Secretary to acquire lands in trust in Alaska for the Natives of Venetie and Arctic Village.").
When the final land-into-trust regulation was published in 1980, its preamble noted that, during the notice-and-comment period "[i]t was ... pointed out that the Alaska Native Claims Settlement Act does not
In 1994, three tribes of Alaska Natives petitioned the Secretary to revise the land-into-trust regulations to "include within [their] scope all federally recognized Alaska Native tribes." AR 275 (Petition for Rulemaking at 1 (Oct. 11, 1994)). The Secretary put that petition out for notice and comment, describing it as a request that the Secretary "remove the portion of the existing regulation that prohibits the acquisition of land in trust status in the State of Alaska for Alaska Native villages other than Metlakatla." Land Acquisitions, 60 Fed.Reg. 1,956, 1,956 (Jan. 5, 1995).
Although the Secretary proposed a revision to the land-into-trust regulation in 1999, he noted that "[t]he proposed regulations would ... continue the bar against taking Native land in Alaska in trust." Acquisition of Title to Land in Trust, 64 Fed.Reg. 17,574, 17,578 (Apr. 12, 1999). The Secretary explained that, "[t]he regulatory bar to acquisition of title in trust in Alaska in the original version of these regulations was predicated on an opinion of the Associate Solicitor, Indian Affairs... which concluded that the Alaska Native Claims Settlement Act (ANCSA) precluded the Secretary from taking land into trust for Natives in Alaska (again, except for Metlakatla). Although that opinion has not been withdrawn or overruled, we recognize that there is a credible legal argument that ANCSA did not supersede the Secretary's authority to take land into trust in Alaska under the IRA." Id. at 17,577-78 (citations omitted). The Secretary noted that "if land were taken in trust by the Secretary, such trust land then would qualify as Indian country and an Alaskan tribe would have all the powers that pertain within Indian country" and invited "comment on the continued validity of the Associate Solicitor's opinion and issues raised by the petition noticed at 60 FR 1956 (1995)." Id. at 17,578.
In 2001, the Secretary published a final rule and his Solicitor withdrew the Associate Solicitor's opinion. The Solicitor announced that although "the Associate Solicitor for Indian Affairs concluded that the Alaska Native Claims Settlement Act (ANCSA) precludes the Secretary from taking land in trust for Alaska Natives except for members of the Metlakatla Indian Community.... I have concluded that there is substantial doubt about the validity of the conclusion reached in the 1978 Opinion." AR 619 (Memorandum from John Leshy, Solicitor, Department of the Interior ("Leshy Memo.") at 1 (Jan. 16, 2001)). The Solicitor explained his conclusion as follows:
Leshy Memo. at 1-2, AR 619-20. Although that opinion was withdrawn, the "Department ..., in its final Part 151 regulations... decided in its sound discretion to continue in place the bar against taking Native land in Alaska into trust (other than Metlakatla)." AR 620. The preamble to the revised regulation announced that,
Acquisition of Title to Land in Trust, 66 Fed.Reg. 3,452, 3,454 (Jan. 16, 2001). The revised regulation amended the "prohibition on taking Alaska lands into trust," id., to read, "We will not accept title to land in trust in the State of Alaska, except for the Metlakatla Indian Community of the Annette Island reserve of Alaska or its members," id. at 3,460 (to be codified at 25 C.F.R. § 151.3(c)). In proposing a nearly-identical amendment, the Secretary had explained that the revised language "would make no change in the current regulations and would continue the bar against taking Native land in Alaska in trust." Acquisition of Title to Land in Trust, 64 Fed.Reg. at 17,578.
After delaying its effectiveness several times, the Secretary withdrew the revised land-into-trust rule later that same year. See Acquisition of Title to Land in Trust, 66 Fed.Reg. 56,608, 56, 609 (Nov. 9, 2001). This suit followed.
"[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The `entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001), and the "complaint, properly read ... presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action," Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C.Cir.1993); accord Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C.Cir. 2009); Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C.Cir.1999);
Despite the length and complexity of the history recounted above, the legal questions in this case are relatively straightforward. The first question is whether the Secretary still possesses the statutory authority to take land into trust for the benefit of Alaska Natives outside of Metlakatla.
The plaintiffs argue that, absent the explicit repeal of the Secretary's Alaska land-into-trust authority—either by an amendment to the 1936 Act or a provision of the sort found in the Maine Claims Settlement Act—that authority should be understood to have survived ANCSA. After many ambiguous pronouncements and years of internal debate, the Secretary now agrees. Compare Fredericks Memo. at 3, AR 3 ("Congress intended permanently to remove from trust status all Native land in Alaska except allotments and the Annette Island Reserve.") and Leshy Memo. at 1, AR 619 (concluding that there is "a serious question as to whether the
The State of Alaska takes the position that the Claims Settlement Act implicitly repealed the Secretary's statutory authority to take Alaska land into trust outside of Metlakatla. "While a later enacted statute ... can sometimes operate to amend or even repeal an earlier statutory provision ... `repeals by implication are not favored' and will not be presumed unless the `intention of the legislature to repeal [is] clear and manifest.'" Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (quoting Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)) (brackets in original). Because of this "cardinal rule" of statutory construction, Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (quoting Posadas v. Nat'l City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936)), a court "will not infer a statutory repeal `unless the later statute "expressly contradict[s] the original act'" or unless such a construction `is absolutely necessary ... in order that [the] words [of the later statute] shall have any meaning at all,'" Nat'l Ass'n of Home Builders, 551 U.S. at 662, 127 S.Ct. 2518 (quoting Traynor v. Turnage, 485 U.S. 535, 548, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988), which quotes Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976), which in turn quotes THEODORE SEDGWICK, THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 98 (2d ed. 1874)) (alterations in original); see also Hunter v. FERC, 711 F.3d 155, 160 (D.C.Cir.2013) (noting the "strong presumption against implied repeals"); Fogg v. Gonzales, 492 F.3d 447, 453 (D.C.Cir. 2007) (applying the "interpretive norm against implied repeals").
The State points first to ANCSA's extinguishment of "[a]ll claims against the United States, the State [of Alaska], and all other persons that are based on claims of aboriginal right, title, use, or occupancy of land ... or that are based on any
The State does not argue with any particular force that petitions to have land taken into trust are "claims" within the usual meaning of that word, and the court
The State turns to ANCSA's declaration of congressional purpose, which indicates that "the settlement should be accomplished... without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges." Id. § 2(b) (codified at 43 U.S.C. § 1601(b)). To that end, ANCSA lands were conveyed to village and to regional corporations in fee simple. See Venetie, 522 U.S. at 524, 118 S.Ct. 948. Alaska Native tribes received neither land nor money in the settlement, which disestablished all reservations except for Metlakatla. See ANCSA, § 19(a) (codified at 43 U.S.C. § 1618(a)). For the Secretary to now take trust title on behalf of Alaska Natives would, the State argues, create precisely the "lengthy ... trusteeship" that ANCSA was designed to avoid. The State argues from both the structure of ANCSA, which converted large tracts of trust land into fee simple ownership while creating no new trust land, and the intention of its drafters and proponents,
This statement of purpose could only effect an implicit repeal if it was in "irreconcilable conflict" with the Secretary's land-into-trust authority, Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003) (quoting Posadas, 296 U.S. at 503, 56 S.Ct. 349), or to infer a repeal of that authority was "absolutely necessary in order that the words of the later statute shall have any meaning at all," Nat'l Ass'n of Home Builders, 551 U.S. at 662, 127 S.Ct. 2518 (brackets, ellipses, and internal quotation marks omitted). Although the Claims Settlement Act "sought to end the sort of federal supervision over Indian affairs that had previously marked federal Indian policy," Venetie, 522 U.S. at 523-24, 118 S.Ct. 948, the terms of the settlement are "capable of co-existence" with the power to take Alaska land into trust, see Traynor, 485 U.S. at 548,
The text of ANCSA and its structure, read alongside FLPMA, suggest that the Secretary retains the authority to take Alaska land into trust. Congress explicitly—and, on the State's view, redundantly—repealed the Allotment Act, the Townsite Act, and, the Secretary's authority to establish reservations in Alaska. Congress did not explicitly eliminate the grant of authority to take Alaska land into trust. If the Secretary's authority to take land into trust had been implicitly repealed, it would follow that his authority to establish reservations was repealed by an even stronger implication. But Congress felt the need to explicitly repeal the Secretary's reservation authority in FLPMA. And the simple fact that the statute conferring land-into-trust authority in Alaska survives is a strong indication that the Secretary's authority to take Alaska land into trust also survives.
The land-into-trust regulations state that they "do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or it[s] members." 25 C.F.R. § 151.1. The Secretary argues
The court "owe[s] the Secretary `substantial deference'" for his interpretation of his own regulation. Tozzi v. U.S. Dep't of Health & Human Servs., 271 F.3d 301, 311 (D.C.Cir.2001) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994)). To adopt his reading, the court "need not find that the agency's construction is the only possible one, or even the one that the court would have adopted in the first instance." Id. (quoting Wyo. Outdoor Council v. United States Forest Serv., 165 F.3d 43, 52 (D.C.Cir.1999)); see also Thomas Jefferson, 512 U.S. at 512, 114 S.Ct. 2381 ("Our task is not to decide which among several competing interpretations best serves the regulatory purpose."). Instead, the court must "give the agency's interpretation `controlling weight,'" Tozzi, 271 F.3d at 311 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)), "unless an `alternative reading is compelled by the regulation's plain language or by other indications of the Secretary's intent at the time of the regulation's promulgation,'" id. (quoting Consolidation
The mere fact that "the Secretary's interpretation" of a regulation is first announced "in the form of a legal brief ... does not ... make it unworthy of deference." Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); see also Nat'l Wildlife Fed'n v. Browner, 127 F.3d 1126, 1129 (D.C.Cir.1997) ("The mere fact that an agency offers its interpretation in the course of litigation does not automatically preclude deference to the agency."). As the D.C. Circuit has explained, "[t]here are at least three preconditions for applying this so-called Auer deference." Drake v. FAA, 291 F.3d 59, 68 (D.C.Cir.2002). One precondition is that "there must be `no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question.'" Id. (quoting Auer, 519 U.S. at 462, 117 S.Ct. 905); see also Bigelow v. Dep't of Defense, 217 F.3d 875, 878 (D.C.Cir.2000). "In conducting this inquiry," a court must "consider whether the agency has `ever adopted a different interpretation of the regulation or contradicted its [current] position....'" Drake, 291 F.3d at 69 (quoting Nat'l Wildlife, 127 F.3d at 1129).
When the Secretary promulgated 25 C.F.R. § 151.1, he explained that the Alaska exception had been added to the regulation after it was "pointed out that the Alaska Native Claims Settlement Act does not contemplate the further acquisition of land in trust status, or the holding of land in such status, in the State of Alaska, with the exception of acquisitions for the Metlakatla Indian Community." Land Acquisitions, 45 Fed.Reg. at 62,034. Since that time, he has said that "the current ... regulations bar the acquisition of trust title in land in Alaska, unless an application for such acquisition is presented by the Metlakatla Indian Community or one of its members." Acquisition of Title to Land in Trust, 64 Fed.Reg. at 17,577; see also Acquisition of Title to Land in Trust, 66 Fed.Reg. at 3,454 (discussing "the bar in the existing regulations to the acquisition of trust title in land in Alaska (other than for the Metlakatla Indian Community or its members)"). He has also referred to this bar as a "prohibition." Acquisition of Title to Land in Trust, 66 Fed.Reg. at 3,454 (discussing "the prohibition in the existing regulations on taking Alaska lands into trust (other than Metlakatla)"); see also Land Acquisitions, 60 Fed.Reg. at 1,956 (referring to 25 C.F.R. § 151.1 as "the portion of the existing regulation that prohibits the acquisition of land in trust status in the State of Alaska for Alaska Native villages other than Metlakatla"). Finally, when the Secretary promulgated the revised (and since withdrawn) land-into-trust regulations, he amended the Alaska exception to read, "We will not accept title to land in trust in the state of Alaska, except for the Metlakatla Indian Community of the Annette Island reserve of Alaska or its members." Acquisition of Title to Land in Trust, 66 Fed.Reg. at 3,460 (to be codified at 25 C.F.R. § 151.3(c)). In proposing the revision, he explained that this new language "would make no change in the current regulations." Acquisition of Title to Land in Trust, 64 Fed.Reg. at 17,578.
The position that the Secretary has taken here—that the Alaska exception does not prohibit him from taking Alaska land into trust outside of Metlakatla—is contradicted both by evidence of his understanding
The Alaska exception represents the Secretary's considered judgment that he will not take Alaska land into trust outside of Metlakatla, as his repeated characterizations and the withdrawn regulation make clear. Whether this judgment can be accurately described as a "bar" is, finally, beside the point. The question is whether it is legally valid.
The plaintiffs argue that the Alaska exception is "not in accordance with law," 5 U.S.C. § 706(2)(A), because it violates 25 U.S.C. § 476(g), which provides:
25 U.S.C. § 476(g). The plaintiffs' argument is straightforward: the Alaska exception is a regulation that diminishes the privileges of non-Metlakatlan Alaska Natives relative to all other Indian tribes, by providing that the Secretary will not consider their petitions to have land taken into trust. It is therefore void by the plain text of 25 U.S.C. § 476(g).
The Secretary makes two attempts to counter this argument. First, he notes that 25 U.S.C. § 476(g) was enacted in response to congressional disapproval of the Secretary's interpretation of Section 16 of the Indian Reorganization Act, which concerns tribal elections, and not in response to any concerns over Section 5, which provides the general grant of land-into-trust authority. See 140 Cong. Rec. 11,234 (1994) (statement of Sen. John McCain) ("The purpose of the amendment is to clarify that section 16 of the Indian Reorganization Act was not intended to authorize the Secretary of the Department of the Interior to create categories of federally recognized Indian tribes."). That is true enough, but 25 U.S.C. § 476(g) plainly applies to "[a]ny regulation" that violates its prohibition. Congress commonly enacts statutes that address more than the precise concern that gave rise to them, and courts should "not resort to legislative history to cloud a statutory text that is clear." Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994); accord Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 808 n. 3, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) ("Legislative history is irrelevant to the interpretation of an unambiguous statute."). Nothing in the text of 25 U.S.C. § 476(g) suggests that it is limited in the way that the Secretary suggests, and the court will not read such a limitation into the statute.
The Secretary's second argument is that 25 U.S.C. § 476(g) only prohibits discrimination between "similarly situated" tribes, and, Alaska Natives are not "similarly situated" to any other tribes because of the Claims Settlement Act. But "similarly situated" appears nowhere in the statutory text, and the Secretary cannot invent a limitation on the statute any more than he could import one from the public statements of individual legislators. "[W]here,
The Secretary does not deny that his regulation diminishes the privileges available to tribes of Alaska Natives (except for the Metlakatlans) relative to the "privileges ... available to all other federally recognized tribes by virtue of their status as Indian tribes." 25 U.S.C. § 476(g). Instead he asks the court to adopt limiting constructions that have no basis in the statutory text. But a law "is not susceptible to a limiting construction" when "its language is plain and its meaning unambiguous." City of Houston v. Hill, 482 U.S. 451, 468, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). The Secretary offers no other arguments, and the challenged regulation shall therefore "have no force or effect." 25 U.S.C. § 476(g).
The court will order briefing as to the scope of the remedy in this case: whether it is only the Alaska exception that is deprived of "force or effect," or whether some larger portion of the land-into-trust regulation must fall.
For the reasons set out above, the plaintiffs' motions for summary judgment will be granted, and the State's and the Secretary's motions will be denied. An order for additional briefing on the question of the appropriate remedy will follow.
