Babbitt

ORDER

The panel as constituted in the above case has voted to deny appellant’s petition for rehearing and to reject the suggestion for a rehearing en banc filed on November 17, 1995.

The full court has been advised of the suggestion for en banc rehearing and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. RApp.P. 35.

The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.

The parties are allowed to file a petition for rehearing addressing the modified section III of the amended opinion filed January 11, 1996.

OPINION

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Foster applied for a Native allotment of land pursuant to the Allotment Act, 43 U.S.C. §§ 270-1 to 270-3 *451 (1970) (repealed 1971). 1 The Allotment Act allowed Alaska natives to apply for land that they had used for certain specified purposes for at least five years. 43 U.S.C. §§…