Babbitt

BACKGROUND

In 1962, the Bureau of Land Management (“BLM”) granted the State of Alaska (“Alaska”) a right-of-way, pursuant to 23 U.S.C. § 317 , for the construction of the George Parks Highway. The right-of-way grant was amended in 1969 to include a slightly different section of land.

In June 1971, Evelyn Foster applied for a Native allotment of land pursuant to the Allotment Act, 43 U.S.C. §§ 270-1 to 270-3 (1970) (repealed 1971). 1 The Allotment Act allowed Alaska natives to apply for land that they had used for certain specified purposes for at least five years. 43 U.S.C. §§ 270-1 , 270-3 (1970). A section of Alaska’s 1969 amended right-of-way grant runs through the parcel of land for which Foster applied. Foster’s application was granted by the BLM in 1979, based on the finding that she had used the designated parcel for statutorily specified purposes since 1964.

The BLM issued another opinion in 1989 confirming its prior approval of Foster’s allotment, but expressly subjecting the allotment to Alaska’s original 1962 right-of-way for the George Parks Highway. The BLM reasoned that Foster’s preference right to the land, which vested when she filed a valid allotment…