(dissenting):

The majority avoids the most difficult issue in this case by disingenuously discovering statutory clarity where in reality none exists. Congress did not expressly address the status of Mental Health Enabling Act land grants under the Statehood Act when it passed ANCSA, the Alaska Native Claims Settlement Act, 43 U.S.C. §§ 1601 -1629a (1982), in 1971. Nor does a study of the legislative history yield a definitive answer as to the precise meaning of the phrase “under the Alaska Statehood Act” in 43 U.S.C. § 1610 (a)(2). In such cases of statutory ambiguity, we are bound to accord substantial deference to reason *1242 able interpretations by the administrator in charge of a program. The difficulty in this ease arises because of a conflict between this canon of deference to the administrator and the canon of liberal construction of statutes benefiting Native Americans. Because the Secretary and the district court interpreted the phrase reasonably, and the canon requiring deference to the Secretary in cases raising interpretive issues with respect to ANCSA is controlling under the previous decisions of this Circuit, I dissent.

A. The Statutory Language

The majority argues that section 1610(a)(2) reflects a clear congressional intention to withdraw for Native selection lands previously entrusted to Alaska to care for the mentally ill. This argument depends in turn on the Mental Health Act lands having been totally subsumed in the Alaska Statehood Act. Under the majority’s reading, the clause in the Statehood Act that “confirmed and transferred” prior land grants from the Territory of Alaska to the State of Alaska, see Alaska Statehood Act of 1958, Pub.L. No. 85-508 § 6 (k), 72 Stat. 339 , 343 (1958), must have transformed the identity of Mental Health Act grants into grants made under the Statehood Act.

This reading of the phrase “under the Alaska Statehood Act” in section 1610(a)(2) by no means represents, as the majority contends, “the clear language of the applicable statutes.” To the contrary, a straightforward reading of both ANCSA and the Statehood Act leads to the conclusion that the most reasonable interpretation of the phrase “under the Alaska Statehood Act” is that Congress intended it to refer only to those lands that were originally granted to Alaska under the Statehood Act. Section 6(k) of the Statehood Act, rather than transforming the essence of the Mental Health Act grants, did no more than confirm the continued vitality of the grants after the admission of Alaska into the Union. As the district court reasoned:

Tyonek Native Corp. v. Secretary of the Interior of the United States, 629 F.Supp. 554, 559 (D. Alaska 1986). Under the majority’s tortured reading of section 6(k), a forthright provision inserted for the purpose of officially recognizing Alaska’s status as a State rather than a Territory is transmogrified into a veiled attempt to swallow up and, in effect, to nullify earlier legislation.

The majority’s reading, in addition to straining the concise and direct wording of section 6(k), clashes with other parts of the Statehood Act. Section 6(g), in creating the format under which the State was to select “all lands granted in quantity to an authorized to be selected ...by this Act,” implicitly distinguished between prior grants, which the Statehood Act merely confirmed, and original grants made under the Statehood Act. Likewise, section 6(i), which provided for mineral land grants, explicitly referred to “[a]ll grants made or confirmed under this Act,” thereby acknowledging Congress’s understanding that pre-statehood grants, far from being subsumed in the grants made under the Statehood Act, stood on a separate legal footing. The Executive Branch also expressed this understanding, for in the regulations promulgated shortly after the passage of the Statehood Act, the Mental Health Act was cited as authority for Alaska’s selection of mental health lands. 43 C.F.R. 76.7 (1963 ed.); 43 C.F.R. 2222.9-3 (1966 ed.).

The view that the Mental Health Act survived after Alaska became a State is also supported by ANCSA. The district court found that Tyonek's proposed construction of the phrase “under the Alaska Statehood Act” rendered this language superfluous. In seeking to find meaning for the phrase, the majority here suggests that it “modifies the three-step process for land selection set forth by Section 6(g) of the Statehood Act, not solely the authority un *1243 der which the lands were selected.” Stated another way, the majority’s point is that the reference in section 1610(a)(2) to the Statehood Act is really a shorthand reference to the three-step process and is not intended to place any limits on the lands that the Natives may select. Thus, under the majority’s view, all lands selected by the State and tentatively approved by the Secretary of the Interior but not yet patented are withdrawn for Native selection.

The foremost problem with this argument is the majority’s failure to explain why Congress, if it meant the phrase “under the Alaska Statehood Act” to mean the three-step process set forth in section 6(g) of the Statehood Act, did not refer to that section explicitly. In several other parts of ANCSA, Congress did exactly that. See 43 U.S.C. § 1603 (a) (referring to “tentative approvals pursuant to section 6(g) of the Alaska Statehood Act”); 43 U.S.C. § 1608 (b) (referring “to conditional leases and sales of minerals heretofore or hereafter made pursuant to section 6(g) of the Alaska Statehood Act,” and “to mineral leases of the United States that are or may be subsumed by the State under section 6(h) of the Alaska Statehood Act”); 43 U.S. C. § 1609(b) (referring to “the State’s right of land selection pursuant to section 6 of the Alaska Statehood Act”). When Congress referred generally in ANCSA to the Alaska Statehood Act and not to any specific provision therein, it did so to identify the general statutory authority underlying a land grant. See 43 U.S.C. § 1608 (c) (identifying “patent[s] hereafter issued to the State under the Alaska Statehood Act”). Similarly, the most reasonable interpretation of the phrase “under the Alaska Statehood Act” in section 1610(a)(2) is that Congress was referring to the general statutory authority for the selection of lands by the State, not to the three-part process elucidated in only a single sentence in a subsection of the Statehood Act. Such a general reference to the Statehood Act easily and directly differentiated between selection of lands under the Statehood Act and selection under other statutes, such as the Mental Health Act.

Still another problem underlying the majority’s position is its failure satisfactorily to explain real differences between Mental Health Act lands and lands granted under sections 6(a) and 6(b) of the Statehood Act. Sections 6(a) and 6(b) provided that the State could replace any lands selected or tentatively approved under those two subsections by further selections. Because the period for selecting such replacement lands was twenty-five years, 1 Congress must have known in 1971 that any lands that it withdrew for Native selection could be replaced by the State. By contrast, any lands that the Natives selected under the Mental Health Act could not be replaced because the deadline for selecting such lands had long since passed.

Tyonek argues that this distinction is not material here because by 1971, the State had overselected mental health lands by some 100,000 acres. Consequently, Tyonek maintains, Congress could have permitted Native selection of up to 100,000 acres of mental health lands without forcing the State to forfeit its entitlement to one million acres. There are two difficulties with this position. First, on a purely empirical level, Congress could not have known the full extent of this “overselection” when it passed section 11(a)(2) in 1971. 2 Second, and even more seriously, Tyonek contradicts itself when it claims that Congress intended to allow Native selection of up to 100,000 acres of mental health lands because its broader argument places no such restrictions on Native selection. Specifically, Tyonek’s argument that the phrase “under the Alaska Statehood Act” subsumed all mental health lands implies that all mental health lands that had been selected and *1244 approved but not yet patented to the State were available for Native selection. Tyo-nek cannot have it both ways. In any case, it is unreasonable to infer that the majority’s position describes the plain intent of Congress when this position is itself internally inconsistent.

B. Legislative History

Similarly unhelpful to Tyonek's case is the legislative history, which the majority itself concedes is “sparse and inconclusive.” Both sides can find support for their readings of the statute in 1971 floor statements that referred to the size of the land grant under consideration. At no time during the 1971 floor discussion, however, did any legislator address the Mental Health lands. Such a discussion took place for the first time nine years later, at which time Senators Stevens and Jackson made the statements upon which the majority relies. But even then, the two senators were not specifically addressing the meaning of the phrase “under the Alaska Statehood Act” in section 11(a)(2). Moreover, just before their exchange, both senators indicated that they did not intend the amendment under consideration “to affect in any way pending litigation regarding the selectability under ANCSA of any particular tract of land including lands previously reserved to or selected by the Territory or State of Alaska under any provisions of Federal law.” 126 Cong.Rec. 21,884 (1980) (statement of Sen. Jackson). The district court was surely correct in inferring that the senators are unlikely to have intended their exchange on the Senate floor to resolve this litigation, which was pending at the time, when they did not intend the amendment itself to resolve any pending litigation.

C. Canons of Interpretation

The majority acknowledges that “[t]his case presents two conflicting canons of statutory construction,” but then avoids resolving the issue of which canon should control by portraying the language of the statutes as clear and unequivocal. Because my analysis has uncovered not clarity, but rather, inconclusiveness and ambiguity in both the statutory language and the legislative history, I believe that the canon issue should be addressed.

Were this not a case involving Native Americans, there would be no question of where judicial deference should lie. This is precisely the type of case in which we are instructed to accord “great deference” to agency interpretations of a statute and to uphold them “so long as they are reasonable.” Kunaknana v. Clark, 742 F.2d 1145, 1150 (9th Cir.1984); see Aleknagik Natives Limited v. United States, 806 F.2d 924, 926-27 (9th Cir.1986); Western Pioneer, Inc. v. United States, 709 F.2d 1331, 1335 (9th Cir.1983); United States v. Boyden, 696 F.2d 685, 688 (9th Cir.1983). When a statute is “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 , 104 S.Ct. 2778, 2782 , 81 L.Ed.2d 694 (1984) (footnote omitted); Western Medical Enterprises, Inc. v. Heckler, 783 F.2d 1376, 1380 (9th Cir.1986). “Regardless of whether it is the only or the better interpretation, a reasonable interpretation must be upheld.” Cook Inlet Native Ass’n v. Bowen, 810 F.2d 1471, 1473 (9th Cir.1987) (emphasis added).

The potential conflict to which the majority alludes, however, arises from the liberal construction that courts customarily apply to statutes benefiting Native Americans. This principle generally applies to “doubtful expressions” in statutes designed to benefit “dependent Indian tribes.” Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 149 , 104 S.Ct. 2267, 2275 , 81 L.Ed.2d 113 (1983).

In construing ANCSA, however, this court has concluded that this canon of liberal construction should not apply. In United States v. Atlantic Richfield Co., 612 F.2d 1132, 1138-39 (9th Cir.), cert. denied, 449 U.S. 888 , 101 S.Ct. 244 , 66 L.Ed. 2d 113 (1980), we found that ANCSA represented an exception to the general trust relationship between the federal govern *1245 ment and Native tribes. After noting “that in cases of ambiguity statutes are to be construed ... in favor of Indians,” 612 F.2d at 1138-39 , we stated:

Id. at 1139 . See also Cape Fox Corp. v. United States, 4 Cl.Ct. 223, 233-34 (1983) (concluding that Congress intentionally avoided a trustee-beneficiary relationship between the federal government and the Alaska Natives when it enacted ANCSA).

CONCLUSION

Unlike the majority, I cannot discern a clear statutory basis for its decision to overturn the reasoned interpretation of the Secretary of the Interior. Congress, in my opinion, did not speak directly to the issue at bar, and we are confronted with a vast array of conflicting evidence and interpretations. In disputes of this nature, we are required to employ accepted canons of statutory interpretation. Because the canon favoring deference to the administrator with expertise in this area is the stronger and more persuasive in the case of ANC-SA, I would affirm.

. In 1980, Congress extended the deadline for the State to make its general selections under sections 6(a) and 6(b) to January, 1994. Alaska National Interest Lands Conservation Act § 906(a), Pub.L. 96-487, 94 Stat. 2371, 2437 (1980).

. Although Bureau of Land Management records could have indicated the overselection in 1971, they did not. Not until 1974 did the Bureau prepare a memorandum estimating the overselection at more than 100,000 acres.